Below is a brief summary of some of our appellate work:
Fifth Circuit Court of Appeals –
Tula-Rubio v. Lynch, 787 F.3d 288 (2015) – In this case our client was a permanent resident being charged with removability for committing a crime. He was eligible for “cancellation of removal” under INA 240A(a) which requires someone to have been (a) a permanent resident for five years (before the crime) and (b) present in the United States for at least seven years after being “admitted in any status.” At his court hearing, the judge decided that while our client had been in the United States more than seven years, his “wave-through” admission wasn’t an admission in “any status.” The Fifth Circuit held that a wave-through was an “admission,” and that “any status” was not a term of limitation – any admission is an admission in “any status.” Thus, Mr. Tula-Rubio was eligible for cancellation of removal.
Lari v. Holder, 697 F.3d273 (5th Cir. 2012) – This was an appeal of a denied motion to reopen, which focused on whether the “departure bar” was binding when an immigrant was deported after he filed his motion. The Fifth Circuit held that immigrants have a statutory right to file one motion to reopen and that the “departure bar,” which was created by regulation and is not part of the statute, was not consistent with the immigration statute. Because the court held that the statute was clear, it said an immigrant who files a motion to reopen or motion to reconsider has the right to have his motion heard, even if he gets deported while it’s pending.
Eighth Circuit Court of Appeals –
Gonzalez–Vega v. Lynch, 839 F.3d 738 (8th Cir. 2016) – The Eighth Circuit concluded that it had jurisdiction to review decisions regarding administrative closure, and it remanded to the BIA to consider in the first instance whether to administratively close the case, because the BIA had not addressed that question when it was asked to previously.
Bremer v. Johnson, 834 F.3d 925, 929 (8th Cir. 2016) – Remanding for the District Court to resolve whether the Adam Walsh Act applies only to the filing of visa petitions (rather than the adjudication of visa petitions). The implication is that if the AWA only prohibits the filing of certain visa petitions, then it doesn’t apply to visa petitions that have already been filed and receipted. “We agree with the Bremers that whether Mr. Bremer’s petition has already been filed, and if so, whether Clause (viii) is inapplicable, are predicate legal questions over which the district court has jurisdiction.”
Limbeya v. Holder, 764 F.3d 894 (8th Cir. 2014) – This appeal addressed the “frivolous asylum” issue. The lower court had held that a false statement about the name of the person who prepared the form made the whole application frivolous, and thus that the applicant was forever barred from all immigration relief. On appeal we argued that the statute requires the false statements to be “material” to the application before a frivolousness determination could be made. The Eighth Circuit held that writing the wrong name down for the form’s preparer was not “material” and thus that the frivolousness finding was in error.
Omondi v. Holder, 674 F.3d 793 (8th Cir. 2012) – In an asylum appeal, the Eighth Circuit rejected the lower court’s findings about the availability of corroborative evidence. The case raised the question of what happens when the court finds the asylum applicant’s testimony credible but says he still needs to provide corroborative evidence. We argued that in some cases, that kind of evidence doesn’t exist. And the statute says it can only be required if it’s actually available. The Eighth Circuit agreed and granted the appeal, sending the case back to the BIA to address the availability of such evidence and problems with the transcript.
Flores v. Holder, 699 F.3d 998 (8th Cir. 2012) – In this appeal, the Immigration Judge had held that the murder of the immigrant’s family was not “persecution” of him. The Eighth Circuit reversed, holding that harm directed at family members may amount to persecution of an individual if it is part of a pattern directed at the applicant. The court also reversed a finding that the immigrant was “lying” about what his name was, given that he had legally changed it under Kansas law years prior to his hearing.
Seventh Circuit Court of Appeals –
Gatimi v. Holder, 578 F.3d 611 (7th Cir. 2009) – The Seventh Circuit considered whether people who had left a religious group called “the Mungiki” would amount to a “particular social group,” given that these former members were targeted, as a group, for persecution. The court held that this was a particular social group and that the BIA’s requirement of “social visibility” made no sense. Finally, the court held that persecution of Mr. Gatimi’s wife would amount to persecution of him, and the court remanded the case to the BIA.
Marin-Rodriguez v. Holder, 612 F.3d 591 (7th Cir. 2010) – In an appeal that addressed the “departure bar,” the Seventh Circuit held that the agency wasn’t allowed to limit its own jurisdiction on issues Congress had designated as being within its jurisdiction. On that basis, the court held that the “departure bar” regulations did not deprive the BIA of “jurisdiction” to consider a motion to reconsider even though the immigrant was deported while the motion was pending.
Villatoro-Lopez v. Holder, 445 Fed.Appx (7th Cir. 2011) – This is an unpublished decision where the Seventh Circuit concluded that the transcript of the hearing was inadequate.
Tenth Circuit Court of Appeals –
Musau v. Carlson, 499 Fed.Appx. 837, 2012 WL 4903251 (10th Cir. 2012) – This is the first Court of Appeals decision in the country to find that immigrants could pursue their right to “witness protection” under the UN Convention Against Transnational Organized Crime (UN-TOC) by filing a petition for writ of habeas corpus, given that they could not ask for such protection in immigration court.
Ninth Circuit Court of Appeals –
Alphonsus v. Holder, 705 F.3d 1031 (9th Cir. 2013) – The Ninth Circuit rejected a finding by the BIA that resisting arrest under the California statute was a “particularly serious crime.” Crimes deemed “particularly serious” make an immigrant ineligible for asylum and withholding of removal. It’s a tricky issue, because the statute deems some crimes “particularly serious” and others are left for the agency to figure out. The BIA had said that the immigrant running from police officers was “particularly serious.” But because that phrase has traditionally been limited to crimes where actual danger is likely, the agency hadn’t explained why running from a police officer qualified.
In addition to published cases, our appellate work has led to a number of voluntary remands. When an immigrant files an appeal in Federal Circuit Court, they must file a compelling opening brief outlining the reasons the appeal should be granted. Normally the Department of Justice then has to file its brief, explaining why the appeal should not be granted. But in many cases, when the DOJ receives an opening brief that clearly outlines a compelling reason to reverse the BIA’s decision, they will agree to move to “remand” the case to the BIA, rather than prepare and file a brief defending the BIA’s decision. Although those cases don’t lead to a published decision with the Circuit Court rejecting the BIA’s decision, the result is the same. The immigrant “wins” and the case goes back to the BIA to reconsider its past decision. Our appellate work has led to “voluntary” remands in a number of cases in various Circuit Courts around the country.