Category: fifth circuit

How Will the Fifth Circuit Rule on DACA and DAPA?

It has been more that five months since the President gave this speech. The programs have been blocked by litigation, instead of allowing full implementation. Last Friday, the Fifth Circuit heard oral arguments regarding the injunctions. I do believe that  the Fifth Circuit will overrule the injunctions for the following reasons:

1. The injunction is very broad. This point was made by the government in its appeal. i do believe that such blanket injunction is very restrictive and is more injurious than the states are willing to admit.

2. The states lack standing. The Fifth Circuit ruled, in a similar case, that the State of Alabama lacked standing because the alleged injury was speculative. I believe that this is a similar case.

3. Immigration should remain a federal matter and the Court will be establishing a dangerous precedent if it allows the injunctions to go forward.

Hopefully, I am right.

Fifth Circuit Rules that VAWA Does Not Trump K-1 Bar

The Fifth Circuit ruled last week that the approval of a VAWA petition does not trump the K visa bar. Le v. US Atty Gen. Under the Act, a person who enters the United States as a fiancé may not adjust her status except through marriage to the Petitioner. Le came the United States pursuant to a K-1 fiancé visa. The petitioner was already married and she could not marry him. She subsequently met a United States citizen who was abusive. She petitioned for a VAWA self petition which was approved. She subsequently filed for adjustment of status, which was denied by the District Director and she was placed in proceedings. While in proceedings she argued that she was eligible for adjustment of status or cancellation of removal. The IJ denied her requests since she entered as a K-1 visa holder and the BIA upheld.
Upon review before the Fifth Circuit, Le argued that her status can be adjusted since her approved VAWA petition trumped the K-1 bar. the court refused to follow such reasoning since, as it opined, the statute does not have such exception for VAWA self-petitioners and it could not breathe in such exception when the statutory language does not contain it.
Unfortunately for Ms. Le, the odds were stacked against her and she could not have won the case. VAWA allows an illegal immigrant to adjust her status if she proves that she was subjected to abuse, because the law waives such illegal entry but does not waive the K-1 bar. I wonder if she will petition for certiorari review.


Fifth Circuit Rules that Expedited Removal Applies to All Aliens

In a decision issued last week, the Fifth Circuit Court of Appeals ruled that expedited removal under INA 238 applies to all aliens. INA 238 allows the expedited removal of any alien who is confined in a correctional institution and convicted of an aggravated felony. Under the statute the Department of Homeland Security must issue a Notice of Intent to proceed through expedited proceedings. The alien may apply for Withholding of Removal under the Torture Convention if he has a fear of returning to his country.
Valdiviez-Hernandez was under investigation for allegedly using someone else’s identity and social security number. ICE found a firearm in his house for which he was convicted as an illegal alien in possession of a firearm. The Service initiated expedited removal proceedings and he refused to sign the Notice. He also failed to respond to the allegations. The immigration judge denied his request for Withholding of Removal and he appealed. He argued that he was not subject to expedited removal since he was not admitted to the United States since he entered the United States illegally. The court rejected this argument and followed other circuits ruling that nothing in the statute limits these proceedings to lawfully admitted aliens. The court thus denied the petition for review and upheld the removal order. 
The argument that Valdiviez-Hernandez was not subject to expedited removal because he was not admitted was doomed from the beginning since the statute clearly expands these proceedings to legal and illegal aliens. The better argument would have been a challenge to the procedure on Due Process grounds. I will follow this case to see if Valdiviez-Hernandez files a petition for rehearing en banc