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

Petitioner, a Brazilian national, entered the U.S. illegally in 2006 and was apprehended by DHS, which initiated removal proceedings, 8 U.S.C. 1182(a)(7)(A)(i)(I). Sh conceded removability and sought asylum and other relief, alleging that she had seen two men fleeing from the scene of a neighbor's murder and was subsequently threatened. She indicated that the police in Brazil are corrupt and often allow criminals to kill witnesses. The IJ deemed the evidence insufficient, finding that her fear was unconnected to any statutorily protected ground and that she did not establish that the Brazilian government was either unable or unwilling to protect her. The BIA agreed. The First Circuit denied review. Petitioner chose to premise both her claim of past persecution and her claim of fear of future persecution on her membership in a group that lacks the requisite social visibility.

Petitioner, born in El Salvador, entered the U.S. illegally in 2006. The Department of Homeland Security brought removal proceedings, 8 U.S.C. 1182(a)(6)(A)(i). He conceded removability and filed an application for withholding of removal and Convention Against Torture protection, claiming that he would be harmed by criminal gangs, prevalent in El Salvador, whose attempts to recruit him he had resisted and that the gangs would perceive him as wealthy because of his time in the U.S. and therefore subject him to further threats and violence. The IJ held that his fear was genuine, but that there was neither a sufficient likelihood of harm nor was the feared harm directed at a statutorily protected social group. The Board affirmed. The First Circuit denied review.

Petitioner, a citizen of Ukraine, now married to a U.S. citizen, entered the U.S. on a visitor's visa in 1999 and overstayed. An IJ granted voluntary departure by March 8, 2006. A motion to reopen was denied. Petitioner, who claims to have been unaware of the denial, remained in the U.S. and was arrested in 2010. Another motion to reopen was denied and, pursuant to 8 U.S.C. 1229c(d)(1)(B)3 the IJ imposed an absolute 10-year bar on any adjustment of status. A new attorney filed a third motion to reopen, based on petitioner's reliance on his previous attorney, who was incompetent. The IJ rejected the motion and the BIA affirmed. The First Circuit remanded for consideration of whether the time-bar on motions to reopen may have tolled, based on equitable considerations, and whether petitioner "voluntarily" remained in the U.S. so as to be subject to the 10-year bar.

In 1999 petitioner, a citizen of the Dominican Republic, entered the U.S. without inspection. He married a U.S. citizen in 2001 and obtained conditional resident status 8 U.S.C. 1186a(a)(1). The marriage ended in 2004. He applied for a hardship waiver of the requirement of submitting a joint petition to remove the condition. The IJ determined that the marriage had not been in good faith and ordered removal. The BIA affirmed. The First Circuit denied review. The IJ based the decision on contradictory accounts, by petitioner and his ex-spouse, about the details of the marriage; petitioner placed the marriage at issue and cannot complain that he did not have notice of the issue.

Petitioner, a citizen of Albania, entered the U.S. illegally, on a fraudulent Italian passport, in 2004. Arrested at the airport, he sought asylum. The IJ, BIA, and First Circuit rejected his petitions. While appeal was pending, he sought to reopen removal proceedings and argued that removal had been improperly initiated. On appeal from rejection of the petition, he argued that, because of his limited command of English, he did not understand the Visa Waiver Program form he signed, under which he waived the right to contest removal on any grounds other than asylum. The First Circuit denied review, noting petitioner's delay in asserting his claim and that he never attempted to assert any grounds other than asylum.

In 1991, petitioner, a citizen of Guatemala, was taken into custody by immigration officials while crossing the Rio Grande. He applied for asylum, but did not appear at a hearing. A deportation order issued. In 2001 petitioner sought to reopen and an immigration judge held hearings and found that the Nicaraguan Adjustment and Central American Relief Act, 111 Stat. 2193, 2644 did not apply because petitioner was apprehended "at the time of entry." With respect to asylum, the IJ found that petitioner had a well founded fear of future persecution if he returned to Guatemala as "a member of a particular social group composed of family returning to Guatemala after lengthy residence in the United States perceived as wealthy and, therefore, particularly susceptible to extortionate and/or kidnapping demands." The BIA reversed with respect to asylum. The First Circuit denied review.

Petitioner, a citizen of the Dominican Republic, entered the U.S. in 1982 and became a lawful permanent resident. About 10 years later he pled guilty to armed robbery. Later he pled guilty to auto-stripping. Upon his return from a 2003 trip he was denied readmission, then paroled. During removal proceedings petitioner conceded that second-degree robbery was a crime of moral turpitude, but contended that his conviction should be waived under former 8 U.S.C. 1182(c)). The immigration judge rejected the argument, finding that auto-stripping is also a crime of moral turpitude. The BIA affirmed and petitioner was removed. In 2010 petitioner requested that the BIA reopen in light of the 2010 Supreme Court decision, Padilla v. Kentucky. Petitioner claimed ineffective assistance of counsel because his attorney did not inform him of the immigration consequences of a guilty plea. The BIA denied the motion. The First Circuit denied appeal. Aliens have a right to move to reopen removal proceedings, 8 U.S.C. 1229a(c)(7)(A), within 90 days of a final order. The BIA was within its discretion in refusing to waive the limit, given that petitioner made no attempt to have his state law convictions overturned.

Defendant, a lawful permanent resident of the U.S. shared a home. When his housemate's visa expired and he was unable to obtain work, defendant allowed the housemate, for a nominal fee, the use of his driver's license and social security card. He obtained employment in defendant's name. Defendant was convicted of aiding and abetting aggravated identity theft, 18 U.S.C. 1028A. The First Circuit affirmed, rejecting an argument that, because he permitted the use of his documents, there was no theft. The statute does not require that the means of identification be stolen or otherwise illicitly procured. The prosecutor's statements about a witness having "no axe to grind," even if improper, did not require a new trial.

Defendant purchased an expired passport and a social security card and attempted to use them to obtain a passport with his picture. He entered a plea of guilty to two counts of making false statements in a passport application, 18 U.S.C. 1542, one count of unlawful re-entry of a deported alien, 8 U.S.C. 1326, and aggravated identity theft, 18 U.S.C. 1028A, and received a 70-month prison sentence. The First Circuit affirmed, finding that the plea was knowing and voluntary. The court rejected an argument that, because defendant bought, rather than stole, the passport, the identity theft was not a use of documents "without lawful authority." The sentence was procedurally and substantively sound; in light of defendant's criminal history, it was at the bottom of the Guidelines range.

A citizen of Guatemala unlawfully entered the U.S. in 1989. In 1997 he was convicted, in Massachusetts, of willful and malicious destruction of property and two counts of assault and battery. The convictions were the result of domestic violence incidents; he has no children. In 2007 he was charged as removeable under 8 U.S.C. 1182(a)(6)(A)(i). An Immigration Judge rejected his motion to cancel removal under the cancellation of removal (8 C.F.R. 1240.64, 1240.66) under the Nicaraguan Adjustment and Central American Relief Act. The BIA affirmed. The First Circuit held that it lacked jurisdiction to review the determination that petitioner did not warrant a favorable exercise of discretion. Petitioner's due process rights were not violated by the handling of his case.