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Summaries of December, 2015 to January 2016 11th Circuit Opinions related to Immigration

This is the third issue of the newsletter summarizing important immigration-related cases decided by 11th Circuit Court of Appeals and District Court decisions from Georgia, Florida, and Alabama. The summarized cases are for December 2015 and January 2016. All of the attorneys writing the summaries – John Gihon, Marshall Cohen, Roberta Cooper – should be commended for their hard work. Any feedback from members, including ideas to improve it, would be appreciated. You may contact Bruce Buchanan at bbuchanan@visalaw.com or John Gihon at John@slgattorneys.com.

Vaz v. Skinner, 14-15791 (11th Cir. Dec. 23, 2015) (unpublished)
The 11th Circuit affirmed the district Court’s holding that the petitioner, a native of Brazil, was not entitled to relief pursuant to a 28 U.S.C. §2241 habeas corpus claim. Petitioner’s argument of lack of adequate medical treatment while in detention fell outside of habeas corpus law as it is a challenge to the conditions of confinement, not to the fact or duration of the sentence as is necessary. The Court added that even if the petitioner had made a proper claim, release from imprisonment is not an available remedy for a claim of conditions of confinement. Petitioner’s second argument of unreasonable detention also failed because he prevented his own removal to Brazil. While the Attorney General has 90 days to remove an alien, the removal period can be extended “if the alien fails or refuses to make timely application in good faith for travel or other documents necessary for the alien’s departure or conspires or acts to prevent the alien’s removal subject to an order of removal.” 8 U.S.C. §1231(a)(1)(C). Although he had been detained more than 6 months (3 years), he could not assert a claim under Zadvydas v. Davis, 533 U.S. 678 (2001), because there was a likelihood of removal in the near future. In this case, the reason behind the delay was petitioner’s refusal to voluntarily sign his travel document or inform Brazil of his willingness to return.

Cardenas-Guerrero v. U.S. Attorney General, 15-10566 (11th Cir. Dec. 28, 2015) (unpublished)
The 11th Circuit held the BIA did not abuse its discretion in affirming the IJ’s denial of a motion to reopen. The petitioner did not make the threshold showing that he was entitled to equitable tolling after filing the motion 24 years from the date of entry of the order of removal. Under Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357, 1363 n.3 (11th Cir. 2013), one must show he has been pursuing his rights diligently and some extraordinary circumstance stood in his way. The record showed no evidence that the petitioner did anything to further his case after 1988. Additionally, the 11th Circuit denied petitioner’s petition to review the BIA’s decision not to reopen the deportation proceedings sua sponte for lack of jurisdiction. The Court explained that the regulation that permits sua sponge reopening has no meaningful standard against which to judge the BIA’s exercise of discretion. Lenis v. Att’y Gen., 525 F.3d 1291, 1292-94 (11th Cir. 2008).

United States v. Espinoza, et al., 14-11890 (11th Cir. Dec. 28, 2015) (unpublished)
The 11th Circuit affirmed the U.S. District Court for the Northern District of Georgia’s decision convicting petitioners of charges regarding their involvement in La Mara Salvatrucha gang (“MS-13”). Remberto Argueta, one of the defendants, moved to suppress evidence arguing his oral and written Miranda waivers, before being questioned by an ICE agent, were not knowing and voluntary. The Court disagreed, stating that Argueta was advised of his rights in Spanish, his native language, both orally and in writing. There was no evidence that Argueta had been so sleep deprived as to be unable to understand the officer’s questions. Lastly, Argueta’s erroneous belief that the interrogation was only for immigration, not criminal, purposes did not undermine an otherwise valid Miranda waiver.

Chen v. U.S. Attorney General, 15-11828 (11th Cir. Jan. 4, 2016) (unpublished) 

According to the 11th Circuit, the BIA did not err in affirming the IJ’s decision to reopen petitioner’s removal proceedings and terminate his asylee status for knowingly making a frivolous application. The IJ properly placed the burden of proof on the government. The government showed that petitioner used a fake Chinese identification card and a fake Chinese police subpoena in support of his application.
The 11th Circuit also held that it lacked jurisdiction to consider petitioner’s argument that he was entitled to withholding of removal. By raising a new argument on appeal, the Court said, he had not exhausted his administrative remedies. Lastly, petitioner could not adjust status based on asylum granted to his wife because his frivolous application made him permanently ineligible to receive benefits under the INA.

Camelien v. U.S. Attorney General, 15-11828 (11th Cir. Jan. 7, 2016) (unpublished)

The Court dismissed in part and denied in part the petitioner’s appeal of the BIA’s affirmance of the IJ’s denial of his applications for asylum, withholding and relief under the CAT. First, the BIA did not retroactively apply Matter of Y-L, 23 I&N Dec. 270 (Att’y Gen. 2002), and thus announce a new rule, to find the petitioner’s 1986 conviction for sale of cocaine a “particularly serious crime.” Second, the petitioner in effect argued that the BIA and the IJ improperly weighed the evidence, i.e. abused their discretion. The Court lacked jurisdiction to review the BIA and IJ’s exercise of discretion. Last, the Court lacked jurisdiction to review the finding that the petitioner did not carry his burden under the CAT.

Jeune v. U.S. Attorney General, 13-11683(11th Cir. Jan. 8, 2015) (published)
The 11th Circuit concluded that petitioner, who asserted he was a homosexual and transgender individual from Haiti, failed to exhaust his past and future persecution claims in his appeal to the BIA of the IJ’s denial of his withholding of removal application. The Court dismissed the petition for review as to past persecution, finding petitioner only set forth a conclusory statement that he had suffered persecution “as a gay man” and did not raise the specific arguments now made. The Court denied his claim of future persecution, concluding that petitioner never asserted a likelihood of future persecution based on his alleged transgender status that he relied on in his petition for review. Lastly, the Court held that the BIA did not violate its own regulations, 8 CFR §1208.16(b)(3), in finding that petitioner could reasonably relocate within Haiti to avoid persecution.

Davis v. U.S. Attorney General, No. 15-11300 (11th Cir. Jan. 11, 2016) (unpublished)

The Court upheld the BIA’s affirmance of the IJ’s denial of a continuance. The petitioner’s first U.S. citizen husband withdrew his I-130 after submitting a sworn statement admitting marriage fraud. The petitioner married a second U.S. citizen who twice filed an I-130, each of which was denied on the basis of marriage fraud in the petitioner’s first marriage. The first U.S. citizen recanted his sworn confession of marriage fraud, and petitioner requested a continuance to file a third I-130 based on her second marriage. The IJ denied the request based on the denials of the two previous I-130’s. The Court found the BIA did not abuse its discretion in affirming the IJ’s denial because there was no I-130 pending at the time of the petitioner’s request for a continuance; no new evidence in support of a future I-130; and strong evidence existed to indicate another I-130 would be denied, as were the previous two, on the basis of the admitted marriage fraud in the petitioner’s first marriage.

Nassar-Arellan v. U.S. Attorney General, No. 15-12397 (11th Cir. Jan. 16, 2016) (unpublished)
The Court affirmed the BIA’s order upholding the IJ’s denial of asylum and withholding to the derivative applicants. The IJ found the principal applicant not credible based on discrepancies between his testimony and written statements, and because he submitted one fraudulent medical record and another of questionable validity. The Court stated the IJ’s credibility determination was supported by several specific and cogent reasons. The Court posited a reasonable fact finder could find an applicant’s statement/testimony not credible based on one inconsistency and one admission, at least where the applicant offered no corroborating evidence to rebut the inconsistency and explain the omission. In response to the argument that the IJ did not formally address the probative value of each document, the Court stated there is no such requirement; only that the IJ have considered all the evidence in the record.

John Gihon is a Florida Bar Board Certified expert in Immigration and Nationality Law and a Crimmigration Consultant. You can contact John If you need an Orlando Immigration Attorney or need a crimmigration consultation, no matter where you live in the world. http://www.floridacrimmigration.com

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