Justia U.S. 1st Circuit Court of Appeals Opinion Summaries

Petitioners, a father and children, natives of Honduras, entered the U.S. without inspection in 1991. The father, who had uncovered tax fraud as an auditor in Honduras, sought asylum in 1992, claiming death threats. DHS began removal proceedings in 2007. The IJ denied the application finding that petitioners failed to establish past persecution or a well-founded fear of future persecution to qualify for asylum. The BIA affirmed. The First Circuit denied review. View "Lobo v. Holder" on Justia Law

Ayala was born in 1957, shortly after Guatemala's president was assassinated. The decades that followed were tumultuous, with guerilla violence common until peace arrived in 1996. Her family suffered two deaths and two robberies. In 1993, Ayala fled to the U.S., leaving behind children, ages 10 and 14 and filed a petition for asylum, withholding of removal, and protection under the Convention Against Torture. In 2006, DHS charged her as removeable. An IJ found Ayala credible but denied her relief because she could not prove past persecution, establish a reasonable fear of future persecution on account of a protected ground, or meet the more difficult tests for withholding of removal and CAT protection. The BIA affirmed, rejecting her claim for asylum under 8 U.S.C. 1158(b)(1)(A) because Ayala was unable to establish that past persecution was or the persecution she fears will be on account of a legally protected ground. The First Circuit affirmed. Asylum claims based on perceived wealth because of a petitioner's connections to the U.S. have consistently been rejected. View "Ayala v. Holder" on Justia Law

Petitioner, a Portuguese national, was admitted into the U.S. in 1984 as a lawful permanent resident. Roughly a quarter-century later, Massachusetts authorities charged him with shoplifting and larceny, arising out of separate crimes allegedly committed at separate times and places. Petitioner pleaded guilty to the shoplifting charge and was fined $250. He pleaded guilty to the larceny charge and was sentenced to 18 months of probation. The shoplifting fine was never paid, but was vacated. DHS commenced removal proceedings based on convictions for two independent crimes of moral turpitude, 8 U.S.C. 1227(a)(2)(A)(ii). The IJ rejected petitioner's argument that he had not been "convicted," and ordered removal. The BIA affirmed. The First Circuit denied appeal. A "conviction" can occur if there is "a formal judgment of guilt of the alien entered by a court," 8 U.S.C. 1101(a)(48)(A), which occurred in this case, despite the fact that petitioner was never punished. View "Viveiros v. Holder" on Justia Law

Aponte, a citizen of the Dominican Republic, was admitted to the U.S. as a Lawful Permanent Resident in 1996. In 1999, she pled guilty to possession of a controlled substance. After she sought to reenter in 2003, DHS charged Aponte as removable under 8 U.S.C. 1182(a)(2)(A)(i)(II). Aponte conceded removability, but obtained a continuance to attempt to have her conviction expunged. After three years, she had not succeeded and, in 2007, the IJ ordered removal. Having received no brief, the BIA dismissed her appeal and, later, declined to reopen, finding insufficient proof of inadequate notice. On remand, Aponte claimed that her attorney before the IJ provided ineffective assistance. The BIA found that Aponte was not eligible for cancellation of removal because she did not establish seven years of continuous residence as she could not properly impute her father's residency; that she did not show prima facie eligibility for asylum, withholding, or CAT protection; and that she could not establish ineffective assistance because she had not demonstrated probability of prejudice. The First Circuit denied appeal with respect to eligibility for cancellation of removal, but remanded with respect to eligibility for asylum, withholding of removal, CAT protection, and ineffective assistance of counsel. .View "Aponte v. Holder" on Justia Law

Petitioner, a citizen of Moldova, was admitted to the U.S. in on a non-immigrant cultural exchange visa. 2006. Instead of departing, he applied for asylum, citing his Roma descent and his membership in Moldova's pro-democratic political party. An Immigration Judge found petitioner's hearing testimony generally credible, considered the most recent State Department country conditions report, but found that petitioner had not carried his burden of proving past persecution or well-founded fear of future persecution on account of a statutorily protected ground, 8 U.S.C. 1101(a)(42)(A). The BIA affirmed. The First Circuit denied an appeal. View "Gilca v. Holder" on Justia Law

Petitioner, a citizen of Brazil, entered the U.S. without inspection in 1994 with his wife. They had two children, both U.S. citizens, then separated. In 2006 petitioner kicked open the door to his wife’s house, broke some glass, and threw furniture. He was arrested and admitted to facts supporting a finding of malicious destruction of property (Mass. Gen. Laws ch. 266, 127), believing that doing so would not cause immigration problems. He was sentenced to and completed 11 months of probation and an anger management program. The Department of Homeland Security took him into custody and instituted removal. He applied for cancellation of removal, 8 U.S.C. 1229b(b). The Immigration Judge denied the application. The Board of Immigration Appeals remanded for consideration of additional evidence regarding his wife's mental health and ability to care for their children and whether petitioner could qualify as "a person of good moral character" for purposes of cancellation of removal. The IJ concluded that malicious destruction of property under Massachusetts law is a crime involving moral turpitude and that he was statutorily barred from eligibility for cancellation of removal. The BIA affirmed. The First Circuit denied review. View "Da Silva Neto v. Holder, ." on Justia Law

Petitioner, a citizen of Hong Kong, came to the U.S. in 1999 and overstayed his visa. In 2010, an immigration judge ordered him removed after determining that he was ineligible for cancellation of removal because he had not maintained 10 years of continuous physical presence as required by section 240A(b)(1)(A)-(D) of the Immigration and Nationality Act . He was five days short. The BIA affirmed. The First Circuit denied his appeal, rejecting an argument that the notice to appear was defective and "stopped time" for purposes of the 10-year calculation.View "Cheung v. Holder" on Justia Law

Petitioner, a citizen of Cambodia, entered the U.S. on a non-immigrant visitor visa, overstayed, and timely applied for asylum, withholding of removal, and protection under the Convention Against Torture. An immigration judge denied relief. The BIA dismissed. The First Circuit vacated and remanded. The court applied the law concerning corroboration as it existed before passage of the REAL ID Act of 2005, 119 Stat. 302 and noted that the corroboration identified by the IJ as lacking "is far from typical." A letter from the U.S. government to support petitioner's claim that he provided information to the government at risk to himself might be inaccessible. The IJ made no findings concerning the reasonableness of the requirement or petitioner's inability to produce such corroboration. View "Soeung v. Holder" on Justia Law

Castaneda, a Peruvian officer, was accused of participation in a massacre during Peru's conflict with the Shining Path guerrilla movement. He was acquitted of charges in Peru, but his name was associated with the massacre. He and his family received death threats. Shining Path repeatedly attacked, killing innocent bystanders. They fled to the U.S. in 1991. An Immigration Judge denied an application for asylum. The BIA affirmed in 2005. While appeals were pending, Castaneda was in custody; he was released on bail in 2010. The First Circuit remanded for consideration of whether Castaneda was credible in testimony that he did not know of the massacre until after it happened. The IJ denied the application. The BIA held that Castaneda was ineligible for asylum, reasoning that Shining Path attacked not because he was a member of a specific group, military officers linked to the massacre, but as revenge. The First Circuit remanded for consideration of whether that comprised a social group. The BIA answered in the affirmative; in 2012, the IJ granted asylum. The government has not appealed, but claimed that the court lacked authority to issue final judgment. The First Circuit disagreed, noting that it explicitly retained jurisdiction to ensure a speedy final resolution. View "Castaneda-Castillo v. Holder" on Justia Law

Petitioner entered the U.S. in 1988 as a visitor, overstayed, and, in 1990, married María, a fellow Colombian. The couple had two children before separating in 1995. In 1996, petitioner's father sought an immigrant visa under 8 U.S.C. 1153(a)(2)(B), which permits unmarried children of an alien who has been lawfully admitted for permanent residence to obtain a visa. The petition was approved. Petitioner and Maria finalized their divorce one month later and María immediately married a U.S. citizen and attained lawful permanent resident status as his spouse. In 1999, María and petitioner ostensibly reconciled and had a third child. They remarried after Maria’s divorce. DHS denied petitioner’s request for adjustment of status and revoked his immigrant visa and began removal proceedings. An IJ denied his application for cancellation of removal finding that petitioner had failed to show that he was a "person of good moral character" while living in the U.S. Meanwhile, Maria filed a visa petition on his behalf as a permanent resident applying for naturalization. USCIS denied María's application when it determined that María's second marriage was a sham. The BIA affirmed. The First Circuit denied review. Findings concerning false testimony were reasonable. View "Restrepo v. Holder" on Justia Law