Justia U.S. 6th Circuit Court of Appeals Opinion Summaries

The Secretary of Homeland Security’s 2021 Guidance notes that the Department lacks the resources to apprehend and remove all of the more than 11 million removable noncitizens in the country and prioritizes apprehension and removal of noncitizens who are threats to “our national security, public safety, and border security.” “Whether a noncitizen poses a current threat to public safety,” the Guidance says, “requires an assessment of the individual and the totality of the facts and circumstances.” The Guidance lists aggravating and mitigating factors that immigration officers should consider and does not “compel an action to be taken or not taken,” and “is not intended to, does not, and may not be relied upon to create any right or benefit.”In a suit by Arizona, Montana, and Ohio, the district court issued a “nationwide preliminary injunction,” blocking the Department from relying on the Guidance priorities and policies in making detention, arrest, and removal decisions. The Sixth Circuit granted a stay pending appeal. The court noted “many dubious justiciability questions” with respect to standing. The Guidance leaves considerable implementation discretion and does not create any legal rights for noncitizens, suggesting it is not reviewable. The preliminary injunction likely causes irreparable harm to the Department by interfering with its authority to exercise enforcement discretion and allocate resources toward this administration’s priorities. A stay pending appeal should not substantially injure the three states. View "Arizona v. Biden" on Justia Law

Tescari and Salame, Venezuelan citizens, have two minor children. Tescari removed the children from their home in Venezuela and brought them with her to the U.S. Salame filed a petition seeking their return under the Hague Convention on Civil Aspects of International Abduction. Tescari and the children were granted asylum in the U.S.The parties stipulated that Salame had a prima facie of wrongful removal and retention. Tescari claimed an affirmative defense under Article 13(b) of the Convention, 22 U.S.C. 9003(e)(2). The court concluded Tescari failed to establish, by clear and convincing evidence, her affirmative defense that returning the children to Venezuela would subject them to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation.The Sixth Circuit affirmed. Because the alleged abuse was relatively minor, the court had no discretion to refuse the petition nor to consider potential future harm. The determination that Salame could provide the children with shelter, food, and medication in Venezuela is not clearly erroneous. Despite Venezuela’s political schisms and civil unrest, Tescari failed to introduce sufficient evidence that it is a zone of war, famine, or disease. Any defects in the Venezuelan court system fall short of "an intolerable situation." While the factors that go into a grant of asylum may be relevant to Hague Convention determinations, the district court has a separate and exclusive responsibility to assess the applicability of an Article 13(b) affirmative defense. View "Ajami v. Solano" on Justia Law

Khaytekov, a citizen of Uzbekistan, came to the U.S. in 2001 and overstayed his visa for many years. In removal proceedings, Khaytekov sought asylum. alleging that he had been persecuted “by nationalist[s] and fascist[s]” in Uzbekistan because of his religion, nationality, and political opinion and feared “physical attacks” if he returned. While his removal proceedings were pending, Khaytekov married a U.S. citizen, withdrew his request for asylum, and applied to adjust his status to lawful permanent resident, which required him to show that he was “admissible” 8 U.S.C. 1255(a). An IJ found Khaytekov inadmissible because he had filed a “completely fabricated” asylum application. Khaytekov later admitted that the application contained false information; he had not been persecuted in Uzbekistan. Khaytekov’s subsequent request for a hardship waiver was denied because Khaytekov had knowingly filed a frivolous asylum application, which rendered him “permanently ineligible” for any benefits under the immigration laws, section 1158(d)(6). The BIA upheld the decision.The Sixth Circuit previously denied relief, rejecting a “Pereira” claim in which Khaytekov alleged that he received a defective notice to appear. Following a remand from the Supreme Court, the Sixth Circuit again denied Khaytekov’s petition. To be “permanently ineligible,” an asylum seeker who files a frivolous application must have received adequate notice “of the consequences” of doing so, section 1158(d)(4)(A), (d)(6). The standard asylum application form contains a warning about frivolous applications. The IJ did not give Khaytekov the customary verbal secondary warning, but nothing in section 1158(d) requires an additional warning. View "Khaytekov v. Garland" on Justia Law

The noncitizens, victims of grave crimes, cooperated with law enforcement. They applied for U-visas, 8 U.S.C. 1103(a)(1), 1101(a)(15)(U), and authorization to work; two sought derivative U-visas and work authorization for family members. They have waited years for USCIS to adjudicate their applications and remain unable to obtain lawful employment, to visit family members who live abroad, or to attain deferred-action status to protect them from removal. They filed suit. While an appeal was pending, USCIS announced a new program for persons with pending U-visa applications: the “Bona Fide Determination Process,” (BFDP).The Sixth Circuit held that the BFDP did not moot any part of the case. Federal courts are not precluded from reviewing claims that USCIS unreasonably delayed placing principal petitioners on the U-visa waitlist. USCIS is required by 8 U.S.C. 1184(p)(6) and the BFDP to decide whether a U-visa application is “bona fide” before the agency can decide whether principal petitioners and qualifying family members may receive Bona Fide Determination Employment Authorization Documents, so 5 U.S.C. 706(1) permits the federal courts to hasten an unduly delayed determination.The court subsequently held that the plaintiffs pleaded sufficient facts that the delayed waitlist determinations have harmed their health and welfare. Plaintiffs should be permitted to amend their complaints should they wish to challenge any delayed “bona fide” determinations. View "Garcia v. United States Department of Homeland Security" on Justia Law

Guzman-Torralva, a 35-year-old Mexican citizen, illegally entered the United States at age 19. He lives in New Jersey and has two children who are U.S. citizens. In 2018, ICE detained him as an alien present without being admitted or paroled. Attorney Krajenke represented Guzman-Torralva at his first hearing, at which he conceded removability; a second hearing was set for November 28, Guzman-Torralva was released on bond. The second hearing was rescheduled. The updated notice again warned Guzman-Torralva that failing to appear could result in an order of removal being issued in his absence. Guzman-Torralva then hired a new attorney, Fuentes, who filed an appearance and moved to change the venue of the hearing. His filings were rejected because Fuentes failed to provide proof of service on Krajenke and to properly sign and paginate the filings. Neither Guzman-Torralva, Krajenke, nor Fuentes appeared at the hearing,Guzman-Torralva was ordered removed in absentia. Guzman-Torralva then hired a third attorney and moved to reopen his removal order, citing ineffective assistance of counsel. The immigration court denied the motion because Guzman-Torralva had not filed a bar complaint against Fuentes nor adequately explained the failure to do so. The BIA denied his appeal for the same reason. The Sixth Circuit denied a petition for review. Precedent requires more than a statement that the alien is “not interested in filing a formal complaint.” View "Guzman-Torralva v. Garland" on Justia Law

Zometa-Orellana's domestic partner in El Salvador, Oscar, beat and raped her and locked her inside their home to prevent her from seeking help. She escaped, thinking she could not relocate within El Salvador due to its small geographic size, and that she could not rely on the El Salvadorian police. She entered the U.S. without inspection, was apprehended, and sought asylum and withholding of removal (8 U.S.C.A. 1158(a)-(b), 1231(b)(3)) based on her anti-machismo political opinion and her membership in a particular social group--El Salvadorian women of childbearing age in domestic partnerships.The IJ ultimately assumed that her allegations were credible but found no evidence Zometa-Orellana ever expressed any anti-machismo political opinion to anyone except Oscar and concluded that Zometa-Orellana’s proposed particular social group failed because “age” is a “mutable” characteristic and that she was targeted because she was her abuser's domestic partner. The IJ noted that Zometa-Orellana had not demonstrated that the government would be unable to protect her or that she was unable to relocate within El Salvador. The BIA agreed, noting that she did not report the incidents to the police.The Sixth Circuit vacated, noting that a crucial case on which the BIA and the IJ relied to assess Zometa-Orellana’s particular social group was vacated by the Attorney General. The IJ and BIA failed to consider the entire record in determining the El Salvadorian government’s willingness to respond and Zometa-Orellana’s ability to relocate within El Salvador. View "Zometa-Orellana v. Garland" on Justia Law

Mbonga joined an athletic club that had connections with the Congo’s then-ruling political party, the People’s Party for Reconstruction and Development. The club’s leaders recruited Mbonga to join the party’s youth group in 2013. The leaders allegedly planned to use the youth group to disrupt peaceful protests by the opposition party, the Union for Democracy and Social Progress. Mbonga refused to participate and, instead, joined the opposition party because of its political platform favoring equality and nonviolence. He began to attend the opposition party’s demonstrations and meetings. He claims that he was subsequently beaten by police several times.In 2018, Mbonga arrived in the United States and applied for asylum, withholding of removal, and relief under the Convention Against Torture. An IJ denied relief, finding that Mbonga was not credible and lacked a likelihood of future persecution because of changed conditions in the Congo. The country had since elected a new president from Mbonga’s own political party. The BIA affirmed. The Sixth Circuit denied a petition for review. The BIA can find a disqualifying change in conditions using general evidence showing that the political party that persecuted a refugee has lost power, which shifts the burden to the refugee to identify specific evidence proving that persecution still remains likely. Mbonga did not present such evidence. View "Mbonga v. Garland" on Justia Law

Rafael, a citizen of Guatemala, applied for admission to the U.S. DHS served her with a Notice to Appear at a place and time “to be determined.” Months later, she received a Notice of Hearing, stating the time, date, and location for that hearing. Rafael appeared and applied for asylum and withholding of removal on the basis that, if returned to Guatemala, she would suffer violence because she is a woman. An IJ found Rafael credible, considered the evidence, including the 2018 State Department Report, then found that Rafael could not show that the Guatemalan government was unable or unwilling to protect women from persecution by private individuals. The IJ found that the Guatemalan government had taken measures to address the problem and that Rafael had not established a cognizable protected group, proven a nexus to a protected ground, or shown either that she had suffered past persecution or held an objectively reasonable fear of future persecution.Before the BIA, Rafael claimed that the removal proceedings were invalid for lack of jurisdiction because the initial Notice did not state the time and place. The BIA dismissed her appeal. The Sixth Circuit denied a petition for review. Rafael received the necessary notice and the IJ had jurisdiction; for purposes of her due process claim, she was not prejudiced by the omission of the place and time from the original notice. View "Rafael v. Garland" on Justia Law

Hernandez, a citizen of Guatemala, has two minor children. Her daughter, A.L. is also a citizen of Guatemala. Her son, born in 2018, is a U.S. citizen. In 2016, Hernandez left Guatemala with her daughter and entered the U.S. without authorization. In removal proceedings under 8 U.S.C. 1182(a)(6)(A)(i), Hernandez sought asylum and withholding of removal, alleging that she was a member of the indigenous K’iche’, whom the Guatemalan government does not help. She alleged that she had suffered and feared future “persecution in the form of severe economic disadvantage or the deprivation of liberty, food, housing, employment and other essentials of life” on account of her status as an indigenous K’iche’ woman.Although the IJ found Hernandez credible, he denied her claims for relief and ordered her removed. The BIA affirmed. The Sixth Circuit denied a petition for review. Substantial evidence supports a conclusion that Hernandez had not shown “persecution” because any economic deprivation she suffered or feared was not, and would not be, “deliberately imposed by the Guatemalan government or non-government actors the government is unable or unwilling to control.” View "Hernandez-Hernandez v. Garland" on Justia Law

The noncitizens, victims of grave crimes, cooperated with law enforcement. They applied for U-visas, 8 U.S.C. 1103(a)(1), 1101(a)(15)(U), and authorization to work; two sought derivative U-visas and work authorization for some of their family members. They have waited years for USCIS to adjudicate their applications and remain unable to obtain lawful employment, to visit family members who live abroad, or to attain deferred-action status that would protect them from removal. They filed suit. While an appeal was pending, USCIS announced a new program for persons with pending U-visa applications: the “Bona Fide Determination Process.”The Sixth Circuit held that the issuance of the Bona Fide Determination Process does not moot any part of the case. Federal courts are not precluded from reviewing claims that USCIS has unreasonably delayed placing principal petitioners on the U-visa waitlist. USCIS is required by 8 U.S.C. 1184(p)(6) and the Bona Fide Determination Process to decide whether a U-visa application is “bona fide” before the agency can exercise its discretion and decide whether principal petitioners and their qualifying family members may receive Bona Fide Determination Employment Authorization Documents, so 5 U.S.C. 706(1) permits the federal courts to hasten an unduly delayed “bona fide” determination. View "Garcia v. United States Department of Homeland Security" on Justia Law