Over the last few months I had the opportunity to work with some fantastic immigration attorneys across the Southeast United States on a collaborative project. Our goal was to find, review and summarize every immigration-related and useful District Court and Circuit Court Case from the Eleventh Circuit and put them together in a newsletter. This was an enjoyable and educational experience. We expect to send out this newsletter every quarter and it will contain published and unpublished District Court cases from Florida, Alabama and Georgia and the Eleventh Circuit Court of Appeals.
This would not be possible without the hard work of our multi-state team composed of Marshall Cohen, Roberta Cooper, Bruce Buchanan and myself, John Gihon. Here is an excerpt of the 11th Circuit Cases. If anyone reading this newsletter has any suggestions, please contact me at John@slgattorneys.com or our editor, Bruce Buchanan at email@example.com
11th Circuit Decisions (September)
Bayolo Hernandez v. U.S. Attorney General, 15-10113 (11th Cir. Sept. 2015) (unpublished) The Court upheld the BIA’s grant of the government’s motion to pretermit Petitioner’s application for suspension of deportation. Petitioner was a Cuban citizen, paroled in 1980 and convicted in 1988 of possession of cocaine. Petitioner argued he was eligible to apply for suspension under St. Cyr and he, like St. Cyr, would have been eligible to apply for relief had IIRIRA not intervened. BIA found status as a parolee would have precluded applying for suspension even before IIRIRA. Thus, it is not impermissibly retroactive to apply IIRIRA to deny a remedy that was never available in the first place.
Liu v. U.S. Attorney General, 15-10621 (11th Cir. Sept. 2015) (unpublished) This case covered multiple BIA appeals and two petitions for review. Petitioner’s then-wife filed an application for asylum, withholding and CAT relief, with the Petitioner listed as a derivative beneficiary, based on China’s family planning policy. The couple subsequently divorced and the wife withdrew the appeal. The BIA dismissed Petitioner’s first appeal, determining there was no independent application for relief, no standing, and no derivative status because of divorce. After the 11th Circuit affirmed, the Petitioner filed a motion to reconsider with BIA, which was denied. The Petitioner raised the same arguments in his 11th Circuit appeal of BIA’s dismissal of motion to reconsider. The Court held that Petitioner was precluded from raising the same arguments in subsequent appeal under the “law of the case” doctrine. Also, the Court upheld the BIA’s denial of motion to reopen where Petitioner argued he was entitled to file a new asylum application. The Court found Petitioner presented no “material” facts that would likely change the outcome of the case.
De Lima, Jr v. U.S. Attorney General, 15-11389 (11th Cir. Sept. 2015) (unpublished): The Court dismissed in part and denied in part the parties’ pro se petition for review of the BIA’s denial of their motion to reconsider and reopen denial of their cancellation case. The Petitioners argued that the BIA abused its discretion by failing to consider the totality of the evidence. The motion was ruled untimely. The Court also held it lacked jurisdiction to review either the BIA’s decision to not sua sponte reopen or reconsider its prior order or the BIA’s purely discretionary determination that Petitioners failed to prove the requisite exceptional and extremely unusual hardship.
Hernandez-Rubio v. U.S. Attorney General, 14-13062 (11th Cir. Sept. 2015) (unpublished): The Court upheld the BIA’s dismissal of Petitioner’s appeal of the IJ’s pretermission of his non- LPR cancellation application on the basis of failure to meet the 10 year physical presence requirement. Petitioner argued that the end date for his physical presence should have been the date of the amended NTA rather than the date of the original NTA, which contained an incorrect charge, incorrect allegations, and no date and time of the hearing. He also argued that the deficient NTA violated his due process rights. The Court ruled that the statute governing termination of the 10 years of physical presence, INA §240A(b)(1)(A), provides no exception in the case of a deficient NTA. Further, the BIA has held that a NTA is “not ineffective simply because it does not include a specific date and time for the initial hearing.” Matter of Camarillo, 25 I&N Dec. 644, 648, 651-652 (BIA 2011). The Court also ruled there was no due process violation because Petitioner received notice of the charges and was given a chance to respond to those charges before the IJ. The original NTA’s deficiencies did not undermine the purpose of the NTA, to inform a person that the government intends to remove him or her from the U.S.
Walters v. U.S. Attorney General, 15-10154 (11th Cir. Sept. 2015) (unpublished): The Court upheld the BIA’s affirmance of the IJ’s ruling that Petitioner’s Florida conviction for operating a chop shop (Florida Statute § 812.16) was categorically a Crime Involving Moral Turpitude (CIMT). The BIA reasoned that operating a chop shop was “morally reprehensible conduct” and involved theft and deception. The Court, in applying the categorical approach, determined that “the least culpable conduct necessary to sustain a conviction under the statute meets the standard of a crime involving moral turpitude.” (citing Keungne v. U.S. Att’y Gen., 561 F.3d 1281, 1284 n. 3 (11th Cir. 2009)). Using the categorical approach, the Court found the Florida statute to be a CIMT because the statute’s plain language required, at the very least, knowingly aiding and abetting the operation of a shop designed to conceal or house stolen car parts. Such concealment necessarily involves dishonesty which has been recognized by binding precedent as involving moral turpitude. Thus the least culpable conduct necessary to sustain a conviction under this particular statute met the standard of a CIMT.
Caceres-Gonzales v. U.S. Attorney General, 15-10194 (11th Cir. Sept. 2015) (unpublished): The Petitioner in this case appealed the BIA’s affirmance of the IJ’s denial of his motion to continue to allow him to file for adjustment as relief. The Petitioner, a native of Honduras, was married to a Mexican citizen whose adjustment application was pending. Petitioner argued that both he and his wife were eligible to adjust via cross chargeability. The IJ ruled such relief speculative, and both the BIA and the 11th Circuit affirmed. The Court also held it lacked jurisdiction to consider Petitioner’s claim that both the BIA and the IJ had failed to follow precedent requiring the IJ to “articulate, balance, and explain” the factors considered in adjudicating the motion to continue. Matter of Hashmi, 24 I&N Dec. 785, 794 (BIA 2009). The Court reasoned that Petitioner had failed to exhaust administrative remedies by not raising the issue in his BIA appeal or by filing a motion to reconsider.
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