Viewing entries tagged
Fifth Circuit

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Fifth Circuit Finds Citizenship Claim Time-Barred After Earlier Passport Denial

The Fifth Circuit has affirmed the dismissal of a citizenship action brought by a man who claimed that he was born in Laredo, Texas. The Department of State had repeatedly denied his passport applications based on concerns about his birth records, including a suspicious birth attendant and a conflicting Mexican birth certificate.

The Court held that the plaintiff’s claim under 8 USC 1503(a) was time-barred because the five-year limitations period began with the first final passport denial, not with later reapplications. The Court also held that the APA and mandamus claims were barred because section 1503(a) provided the exclusive adequate remedy, and affirmed dismissal of the constitutional claims.

The full text of Cortez v. Rubio can be found here: https://www.ca5.uscourts.gov/opinions/pub/25/25-20339-CV0.pdf

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Fifth Circuit Finds Father-in-Law's Arrest Was Not a Changed Country Condition

The Fifth Circuit has determined that a Salvadoran respondent's untimely motion to reopen did not qualify for the changed country conditions exception. The respondent argued that he faced increased danger in El Salvador after his father-in-law, an alleged former MS-13 official, was arrested and extradited to the United States, causing MS-13 to believe that the father-in-law had cooperated with the FBI.

The Court found that the father-in-law's arrest and extradition were changes in the respondent's personal circumstances, not changed country conditions in El Salvador. Although the respondent may now face greater danger, the danger flowed from a family-specific development, rather than from a material nationwide change in conditions. The Court also rejected the respondent's request for equitable tolling, finding that he did not establish that former counsel's alleged ineffectiveness prevented him from timely filing the motion to reopen.

The full text of Prado-Majano v. Blanche can be found here: https://www.ca5.uscourts.gov/opinions/pub/25/25-60040-CV0.pdf

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Fifth Circuit Affirms Agency's Determination that Harsh Prison Conditions in El Salvador are not Torture

The Fifth Circuit has affirmed the agency’s determination that harsh prison conditions in El Salvador do not constitute torture. Some of the agency’s conclusions include:

-evidence is not sufficient to show that the dismal and harmful conditions of detention are specifically intended to torture

- pursuant to El Salvador’s State of Exception, Fuentes-Pineda would likely be detained and imprisoned upon his arrival

-the IJ was “unable to speculate” that deaths in Salvadoran prisons were “the result of extreme cruel and inhuman treatment rather than other causes such as substandard conditions of prison”

-evidence that the government is attempting to obfuscate the number of deaths does not necessarily indicate these deaths were specifically intended, rather than the result of of negligence caused by the overcrowded conditions

-advertising the poor conditions as a deterrent to criminal conduct is not inconsistent with attempts to improve those conditions as they currently exist

The full text of Fuentes-Pineda v. Bondi can be found here: https://www.ca5.uscourts.gov/opinions/pub/24/24-60592-CV0.pdf

An amended opinion - which the BIA determines that El Salvador’s harsh prison conditions are not specifically intended by the government to inflict torture. And although Salvadoran police officers previously tortured Fuentes-Pineda on two occasions, the BIA justifiably determined his future risk of torture is only speculative - can be found here: https://www.ca5.uscourts.gov/opinions/pub/24/24-60592-CV1.pdf

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Fifth Circuit Permits Admission of Uncertified Criminal Records, Finds Texas Conviction for Indecency with a Child to be Deportable Offense

The Fifth Circuit has concluded that the certification requirements in 8 U.S.C. § 1229a(c)(3)(C) are not mandatory and has also determined that a Texas Conviction for indecency with a child - sexual contact is a crime of child abuse.

The full text of Campuzano v. Bondi can be found here: https://www.ca5.uscourts.gov/opinions/pub/24/24-60575-CV0.pdf

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Fifth Circuit Measures Diligence from When Non-citizen Learned of Post-Conviction Relief

The Fifth Circuit, in evaluating whether a non-citizen exercised due diligence in moving to reopen his proceedings, has indicated the importance of the date he learned of the availability of post-conviction relief. The Court rejected the argument that diligence should be measured from when the post-conviction order was granted.

The full text of Arevalo v. Bondi can be found here:

www.ca5.uscourts.gov/opinions/pub/24/24-60349-CV0.pdf

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Fifth Circuit Permits Reliance on Forfeiture Order to Establish Amount of Money Laundered

The Fifth Circuit has determined that the agency may rely on an uncontested forfeiture order to determine how much money was involved in a money laundering offense. “[W]e hold that an unrebutted forfeiture order entered solely against an alien that finds a specific amount of laundered funds attributable to the alien’s conduct of conviction can constitute clear and convincing evidence of the amount of funds required to be proven during a § 1101(a)(43)(D) circumstance-specific inquiry.”

The full text of Dominguez Reyes v. Bondi can be found here:

https://www.ca5.uscourts.gov/opinions/pub/25/25-60016-CV0.pdf

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Fifth Circuit Finds Jurisdiction to Review if VAWA Cancellation Applicant has Suffered Extreme Cruelty

The Fifth Circuit has determined that “extreme cruelty,” as required for VAWA cancellation of removal, is a mixed question of fact and law that a federal court has jurisdiction to review. The Court indicated review would be deferential as the determination is fact intensive.

The full text of Simantov v. Bondi can be found here:

https://www.ca5.uscourts.gov/opinions/pub/24/24-60487-CV0.pdf

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Fifth Circuit Rejects Argument that Louisiana Conviction for Aggravated Battery is not a Crime of Violence

The Fifth Circuit has rejected an argument that a Louisiana conviction for aggravated battery is not a crime of violence, finding that the appellant had not demonstrated a realistic probability that Louisiana actually prosecutes reckless conduct under the statute.

The full text of US v. Sereal can be found here: https://www.ca5.uscourts.gov/opinions/pub/23/23-30198-CR0.pdf

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Fifth Circuit finds that Filing Deadline in 8 U.S.C. § 1503(a) is Non-Jurisdictional

The Fifth Circuit has determined that the 30 day filing deadline in 8 U.S.C. § 1503(a) is a claims processing rule. The court further determined that “a denial of a timely motion to reconsider or motion to reopen may serve as the final administrative denial on a particular claim. If the motion is untimely, then the AAO decision is final.”

The full text of Villegas Sarabia v. Noem can be found here:

https://www.ca5.uscourts.gov/opinions/pub/24/24-50750-CV0.pdf

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Fifth Circuit Finds DACA Unlawful

The Fifth Circuit has issued a decision finding the employment authorization and lawful presence benefits of the Deferred Action for Childhood Arrivals (DACA) program to be unlawful. However, the Court also determined that only the state of Texas had shown any injury from the program, and thus, it limited its injunction to that state, leaving the legality of the program in other parts of the country untouched. Finally, the Court stayed its own decision to permit the parties the opportunity to appeal. Thus, the state of DACA for now remains the same - those with DACA can renew it nationwide, but USCIS cannot approve new applications.

The full text of Texas v. United States can be found here:

https://www.ca5.uscourts.gov/opinions/pub/23/23-40653-CV0.pdf

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Fifth Circuit Applies no Deference to BIA's Hardship Determination

The Fifth Circuit has affirmed the agency’s hardship finding in a cancellation of removal case, finding that even if it accorded that determination no deference, the applicant had not established that his U.S.-citizen son would suffer exceptional and extremely unusual hardship without him.

The full text of Cuenca-Arroyo v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/23/23-60100.CV0.pdf

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Fifth Circuit Rejects Challenge to Revocation of I-140 Petition Approval

The Fifth Circuit has rejected a challenge to the revocation of the approval of an I-140 petition. The Court found that because the agency found the petition was granted in error, it was never valid, the portability rules in section 245(j) of the INA did not prevent the revocation of the approval.

The full text of Nguyen v. Jaddou can be found here:

https://www.ca5.uscourts.gov/opinions/pub/23/23-20597-CV0.pdf

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