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

Luna-Romero, a citizen of Argentina, entered the U.S. illegally. In removal proceedings, he applied for asylum, 8 U.S.C. 1158(b), withholding of removal, section 1231(b)(3)(A), and protection under the Convention Against Torture. He testified about past abuses in Argentina, noting that during the 1990s he became the spokesperson for an indigenous group and organized protests on its behalf. The police harassed him during these protests, beating him up “half of the time” and detaining him “three or five times.” An officer once struck him with a police baton, resulting in eight stitches in his eyebrow. Apart from the protests, Luna testified that the police had detained him some “57 times” over the years. An immigration judge denied Luna’s application, finding that he had not testified credibly and had provided inconsistent and evasive answers. The Board of Immigration Appeals dismissed his appeal, noting that Luna’s other evidence could not “independently establish” any of his claims for relief. The Sixth Circuit denied his petition for review. Some of the inconsistencies, in isolation, may seem like “small potatoes” but “their cumulative effect is great.” The Board reasonably upheld the adverse credibility determination. That decision combined with a lack of independent evidence bars Luna from obtaining the three types of relief that he seeks View "Luna-Romero v. Barr" on Justia Law

Lo and Dieng are citizens of Senegal. Lo entered the U.S. in 1997 on a student visa but did not attend the university. Dieng used a false passport to join him in 2003. Their daughter was born in 2006. In 2007, Dieng applied for asylum, withholding of removal, and protection under the Convention Against Torture, asserting that her relatives had attempted to subject her to female genital mutilation (FGM) and that, if removed, she and her daughter would be subjected to FGM. Dieng later conceded that, at her age, she was no longer at risk, and that their daughter could stay in the U.S. with relatives. The IJ denied relief. The BIA affirmed, noting that the couple could relocate within Senegal to an area where FGM is not practiced. After their second daughter was born, DHS took action to enforce the removal order. The couple sought to reopen their case, alleging changed conditions. They submitted documents indicating that their relatives intended to perform FGM on Dieng and the girls. The BIA dismissed the petition as untimely, finding the proferred evidence speculative and self-serving and noting that the girls, U.S. citizens, were not subject to removal. The Sixth Circuit denied a petition for review. Even if the evidence were credible, the couple did not establish a well-founded fear of prosecution. The BIA did not abuse its discretion in finding that the family could reasonably relocate to avoid FGM. View "Dieng v. Barr" on Justia Law

Kada, a Chaldean Christian from Iraq, immigrated with his family at age 12 as Lawful Permanent Residents. Kada was convicted of assault with a deadly weapon and carrying a concealed weapon. Charged with removability, 8 U.S.C. 1227(a)(2)(C), Kada was represented by Attorney Kent, who indicated that he would apply for Convention Against Torture (CAT) relief. Kent failed to file Kada’s CAT application or to request an extension. The IJ found Kada removable. Kent moved to reopen, arguing that hospitalizations prevented him from meeting the deadlines. Kent attached his medical records and included Kada’s CAT application and evidence. Kada explained that he had uncles who “disappeared under Saddam Hussein,” and other family members “kidnapped by ISIS,” that he is “completely Americanized,” knowing “little Arabic.” Kada argued that, if he were not tortured as a Chaldean Christian, he would be tortured by Iraqi authorities because of his criminal record and deportee status. The IJ denied Kada’s motion, finding that Kent had failed to establish his incapacity on or shortly before the filing deadline. The BIA denied an appeal.With new counsel, Kada again moved to reopen, arguing ineffective assistance of counsel. Kada was removed. He provided a declaration that, in Iraq, men pointed weapons at him but let him go. Kada has since stayed hidden without access to medication. Kada’s friend reported the incident to the police and perpetrators were apprehended. They confessed that they wanted to kidnap Kada to blackmail his family. The BIA denied Kada’s motion, concluding that Kada had not demonstrated prejudice. The Sixth Circuit vacated. The BIA failed to account for evidence and prior decisions, involving nearly identical circumstances and did not analyze whether Kada showed a reasonable probability that, but for the ineffective assistance, he would have been entitled to remain in the U.S. View "Kada v. Barr" on Justia Law

The federal government entered final removal orders against about 1,000 Iraqi nationals in 2017, and has detained them or will detain them. Most remain in the U.S. due to diplomatic difficulties preventing their return to Iraq. The district court certified three subclasses: (1) primary class members without individual habeas petitions who are or will be detained by ICE, (2) those in the first subclass who are also subject to final removal orders, and (3) those in the first subclass whose motions to reopen their removal proceedings have been granted and who are being held under a statute mandating their detention. The Sixth Circuit previously vacated two preliminary injunctions, citing lack of jurisdiction under 8 U.S.C. 1252(g) and (f)(1). One prevented the removal of certain Iraqi nationals; another required bond hearings for each class member who had been detained for at least six months. A third injunction requires the government to release all primary subclass members, those in the first subclass, once the government has detained them for six months, no matter the statutory authority under which they were held. The district court concluded that the class members showed that the government was unlikely to repatriate them to Iraq in the reasonably foreseeable future and that the government “acted ignobly.” The Sixth Circuit vacated the injunction. Congress stripped all courts, except the Supreme Court, of jurisdiction to enjoin or restrain the operation of 8 U.S.C. 1221–1232 on a class-wide basis. View "Hamama v. Adducci" on Justia Law

Aguilar-Calvo pleaded guilty to illegal reentry, 8 U.S.C. 1326(a) and (b)(1). He had been previously convicted of felony drug possession, assault, driving under the influence, and illegal reentry. In its sentencing memorandum, the government addressed18 U.S.C. 3553(a)’s sentencing factors, noting that some people are “impatient for action to protect their perceived economic interests, as promised by our duly enacted immigration policies. Aguilar-Calvo’s sentencing memorandum argued that the district court should not consider such “extraneous, inflammatory, and idiosyncratic views.” The government responded that it did not agree that these concerns are “extraneous,” noting that the guidelines recommend a higher sentence for recidivist illegal reentries and for defendants who have a prior felony conviction. The district court sentenced Aguilar-Calvo to 38 months of imprisonment after a lengthy explanation, citing 18 U.S.C. 3553(a). Aguilar-Calvo objected to “any consideration of the Government’s arguments about the political debate about illegal immigration.” The Sixth Circuit affirmed, rejecting an argument that the sentence was procedurally unreasonable. At no point in sentencing Aguilar-Calvo did the district court rely on the government’s inappropriate representations, on unreasonable speculation or on erroneous information. View "United States v. Aguilar-Calvo" on Justia Law

Maslenjak, an ethnic Serb and native of Bosnia, came to the U.S. as a refugee, claiming she and her family feared persecution in Bosnia because her husband had evaded conscription into the Serbian army. In fact, Maslenjak’s husband was an officer in a unit implicated in war crimes. Maslenjak ultimately obtained naturalization. She was later convicted of knowingly procuring her naturalization contrary to law, 18 U.S.C. 1425(a) and of knowingly using an unlawfully issued certificate of naturalization, 18 U.S.C. 1423. The Sixth Circuit affirmed, rejecting arguments that the court improperly instructed the jury that her false statements need not be material in order to convict or erroneously instructed that the jury could also convict Maslenjak if it found that she lacked good moral character. The Supreme Court reversed, holding that lies told in the immigration process must be material and have “played some role in [the] acquisition of citizenship.” The Court instructed that the government could satisfy this materiality element by proving beyond a reasonable doubt that the facts the applicant misrepresented would themselves disqualify her from receiving citizenship or that the applicant’s false statements hid facts that, if known, would have triggered an investigation that likely would have led to the discovery of other disqualifying facts. The Sixth Circuit remanded to the district court. The government has not proven beyond a reasonable doubt that a properly instructed jury would have convicted Maslenjak; the instructional error was not harmless. View "United States v. Maslenjak" on Justia Law

In 1996, Rizk a citizen of Lebanon, received deferred admission to the U.S. as the fiancée of a U.S. citizen, Derbass. They married in 1998. Rizk obtained conditional permanent resident status. They divorced in 2001. Rizk requested a waiver of the requirement to file a joint petition to remove the conditions on residence. An immigration officer interviewed Rizk, giving her the opportunity to submit evidence. Rizk’s statements concerning the fatherhood of her children and the whereabouts of her alleged first ex-husband, conflicted with statements made in connection with her divorce. Rizk provided no evidence to establish a shared residence with Derbass and no evidence relating to their combination of financial assets and liabilities. The United States Citizenship and Immigration Services determined that theirs “was a sham marriage entered into for the primary purpose of enabling [Rizk] to evade immigration laws and to obtain immigration benefits fraudulently.” Rizk returned to Lebanon and attempted to obtain a visa. USCIS denied those petitions under 8 U.S.C. 1154(c). Rizk’s daughter (a U.S. citizen), filed a new I-130 petition (8 U.S.C. 1151(b)) on Rizk’s behalf. USCIS approved that petition without conducting interviews; the previous finding of fraud was not taken into consideration. USCIS soon discovered its mistake and revoked the approval. The Board of Immigration Appeals held that Rizk was ineligible for a visa under section 1154(c). The Sixth Circuit affirmed the dismissal of her complaint. The revocation decision was not arbitrary. View "Jomaa v. United States" on Justia Law

Garcia-Romo filed an application with the Immigration Court to cancel his removal order, seeking a form of discretionary relief that the Attorney General may grant to noncitizens to allow them to remain in the U.S. if they meet eligibility requirements under 8 U.S.C. 1229b(b)(1). One requirement is that the alien “has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application.” Under the “stop-time” rule (section 1229b(d)(1)), the accrual period of continuous physical presence is “deemed to end . . . when the alien is served a notice to appear under section 1229(a).” Section 1229(a)(1) requires written notice of several different categories of information, including “[t]he time and place at which the [removal] proceedings will be held.” Garcia-Romo received a “Notice to Appear” from DHS that contained all of the required information except for the time and date of the removal proceedings. The Immigration Court later sent Garcia-Romo a document entitled “Notice of Hearing in Removal Proceedings,” which provided the required time-and-date information. The Sixth Circuit denied his petition for review, rejecting an argument that all of the information must be contained in a single document. The Supreme Court’s Pereira opinion “says nothing about whether a” deficient initial communication “can be cured by a subsequent document that fully provides specific time, date, and place information.” View "Garcia-Romo v. Barr" on Justia Law

Gonzalez, a citizen of Guatemala, surrendered himself at the U.S. border and requested asylum. Gonzalez alleges that he would be persecuted and tortured because of his status as a former taxi driver if he is removed to Guatemala. An immigration judge denied Gonzalez’s application for asylum, withholding of removal, and protection under the Convention Against Torture. The Board of Immigration Appeals affirmed and the Sixth Circuit denied a petition for review. Gonzalez’s Notice to Appear, which omitted the date and time of the hearing, was promptly followed by a Notice of Hearing that provided this information, so both the IJ and the BIA had jurisdiction over Gonzalez’s case. There is no evidence that Gonzalez would be targeted as a former taxi driver, nor any evidence that former taxi drivers are perceived as a distinct group by Guatemalan society or by the gangs. View "Gonzalez-De Leon v. Barr" on Justia Law

Moreno-Martinez, a citizen of Honduras, arrived in the U.S. in 1999, returned to Honduras in 2003, and reentered in 2004. In 2007, DHS issued “Notice to Appear” under 8 U.S.C. 1182(a)(6)(A)(i), ordering Moreno-Martinez to appear on “a date to be set” at “a time to be set.” Almost two months later, the immigration court sent a notice setting June 26, 2007, as the initial hearing date. Moreno-Martinez applied for asylum, withholding of removal, and relief under the Convention Against Torture. An IJ denied those requests but granted voluntary removal. The BIA affirmed. Moreno-Martinez did not seek review of the removal order but left the U.S. in February 2012. He later returned. On August 1, 2018, ICE detained him and DHS filed a Notice of Intent to reinstate its previous removal order. Moreno-Martinez contends that DHS violated due process by not providing him a copy of the reinstatement order or allowing him to make a statement contesting the reinstatement so that he could argue that the removal order was invalid under Pereira v. Sessions, because his notice to appear lacked specific time-and-date information. The Sixth Circuit denied relief, reasoning that it had jurisdiction to review Moreno-Martinez’s due-process challenge because it presents a constitutional issue but that it could not grant the relief that Moreno-Martinez seeks, lacking jurisdiction to reopen the underlying removal order. The petition is an untimely collateral attack on the validity of the removal order, 8 U.S.C. 1252(b)(1). View "Moreno-Martinez v. Barr" on Justia Law