Read case summaries of select Fifth and First Circuit Court of Appeals cases issued this last month.
Fifth Circuit Court of Appeals
L.N. v. Garland [asylum]
L.N. v. Garland - --- F.4th ----, 2024 WL 3529031 (5th Cir. 2024) - July 25, 2024
Facts & Background
- L.N., Petitioner and citizen of Angola, sought review from the Fifth Circuit of the Board of Immigration Appeals' (BIA) final removal order. The BIA affirmed the immigration judge's (IJ) decision on denials of asylum, withholding of removal, and protection under the Convention Against Torture (CAT).
- L.N.'s parents were murdered in 1998 because her father was an outspoken dissident about Angolan governmental corruption. Later, between 2003 and 2017, L.N. was victim to persecution in three separate incidents, which L.N. believes took place because of her father's governmental opposition. L.N. experienced gunshots directed at her home, being grabbed on the street and held at gunpoint, and her house being set on fire with flyers (related to her father's beliefs) strewn about outside her home.
- L.N. came to the United States seeking protection in the forms of asylum, withholding of removal, and relief under the CAT. The IJ denied L.N.'s claims, finding that she did not establish a well-founded fear of persecution in Angola.
- L.N. appealed the IJ's decision, the BIA remanded to the IJ to make certain findings about the expert witness and the possibility of relocation in Angola, but the IJ again found that L.N. was still not eligible for relief. BIA affirmed, so L.N. sought review from the Fifth Circuit.
- Upon review, the Fifth Circuit reviewed both the BIA decision and the IJ's ruling, since the IJ's ruling affected the BIA's decision.
- L.N. raised four arguments on appeal:
- That the BIA failed in adequately considering evidence of state-sanctioned persecution and that if the BIA had done so, the BIA would have found that L.N. did suffer persecution by the Angolan government;
- That the evidence in the record compels a finding that the Angolan government could not and would not, and presently cannot and will not, protect her;
- That the BIA erred in not bifurcating its analysis of past and future inability to protect her; and
That the evidence merits reversal of the CAT denial.
Notable Holdings & Rationale
- The Fifth Circuit denied the petition for review, holding that the BIA sufficiently considered the record, which had substantial evidence to support the BIA's decision to affirm the IJ's denials.
- Regarding each of the arguments raised on appeal, the Fifth Circuit found:
- Remand is necessary because the BIA sufficiently considered L.N.'s claims;
- Evidence does indeed support the BIA's conclusion that the Angolan government was willing and able to protect L.N.;
- There is no precedential support for a bifurcated approach that L.N. calls for, and L.N. could not show past persecution anyway; and
- Substantial evidence supports the BIA's decision to deny CAT, as the BIA found that L.N. did not provide sufficient evidence about torture upon return to Angola.
U.S. v. Abbott [border issues; Texas; border patrol]
U.S. v. Abbott, No. 23-50632 (5th Cir. en banc 2024) - July 30, 2024
Facts & Background
- In July 2023, as part of Operation Lone Star, the State of Texas placed a floating barrier in the Rio Grande to prevent and discourage border crossings. Texas paid approximately $850,000 for the barrier, which is a structure of 1,000-foot-long buoys strung together with saw blades between the buoys. Beneath the surface, the barrier supports a mesh net to prevent underwater crossing.
- The United States then sued the State of Texas under multiple arguments, including that Texas had violated the Rivers and Harbors Appropriations Act of 1899 (RHA) and that the structure was impeding river navigation. The federal government requested a preliminary injunction against the floating barrier. Litigation has since followed, with a lower district court issuing a preliminary injunction against the floating barrier deployment, which the Fifth Circuit upheld in December 2023.
- The focus on appeal was narrowed to the question of whether the district court abused its discretion in granting the preliminary injunction to the United States.
Notable Holdings & Rationale
- Though the Fifth Circuit panel had previously upheld the preliminary injunction, the full appeals court concluded that the barrier can now be deployed and remain in the Rio Grande while the lower court hears the case on the merits.
- The Fifth Circuit dissolved the stay pending appeal, reversed the district court’s order granting a preliminary injunction, and remanded with instructions to vacate the preliminary injunction and for further proceedings--overall concluding that the district court did abuse its discretion in granting the United States's preliminary injunction.
- The Fifth Circuit determined that the preliminary injunction should not have been granted because the federal government is likely unable to prove throughout the course of trial that Texas put the barrier in a “navigable” stretch of the Rio Grande and therefore that Texas violated federal law.
First Circuit Court of Appeals
Cruz Galicia v. Garland: [asylum; climate refugee]
Cruz Galicia v. Garland, No. 23-1910, 106 F. 4th 141 (1st Cir. July 1, 2024)
Facts & Background
- Family from Guatemala sought asylum, withholding of removal, and protection under the CAT based on being members of a particular social group (PSG) defined as “climate refugees.” They argued that the fled due to droughts, storms, and the pandemic, and that they would starve if forced to return because the government could not protect them.
- The IJ denied relief for failure to show persecution, a cognizable PSG, or nexus. Cruz Galicia appealed the asylum claim only, the BIA summarily affirmed the IJ’s ruling without issuing an opinion.
Notable Holdings & Rationale
- The First Circuit affirmed, concluding there was “no basis for questioning the factual finding underlying the IJ's determination” and rejecting the argument that climate refugees could be considered a socially distinct group because Guatemalan government has acknowledged internal displacement of citizens do to climate change and natural disasters.
- Cruz Galicia also argued that the BIA was required to issue a written opinion because his case presented a novel issue, but the First Circuit disagreed with this regulation-based challenge and refused to grant the petition on this basis.
Paye v. Garland: [asylum; ethnic cleansing; past persecution; presumption of future persecution; non-state actors]
Paye v. Garland, No. 23-1426, __ F. 4th ___ (1st Cir. July 17, 2024)
Facts & Background
- Paye, a member of the Krahn ethnic group and born in Liberia, fled the country in the early 1990s as a baby with his family to escape the ethnic cleansing and genocide of the Krahn people. He lived in refugee camps in Sierra Leone. In 1996 or 1997, he and his family members tried to flee to Guinea because of forces hunting Krahn in Sierra Leone. They were detained by armed men in military fatigues at the Guinean border who assaulted Paye. Paye believed they were from Liberia because they spoke with a distinctive Liberian English accent. Paye lived in refugee camps, entered the United States as a refugee in 2005, and became a legal permanent resident in 2010. In 2020, Paye was placed in removal proceedings nine months later after being convicted of an aggravated felony and firearm offense. He sought asylum, withholding of removal, and CAT protection on the basis of fearing persecution because of his ethnicity.
- The IJ held that the assault by the guards at the border did not constitute persecution because Paye could not show that they were government actors, and thus denied relief. The IJ also denied relief based on the particularly serious crime bar.
- The BIA initially affirmed on the basis of the particularly serious crime bar. After a change in the applicable law, it reheard the case on appeal and agreed with the IJ that Paye failed to show past persecution based on the assault because the evidence did not establish the guards were government actors.
Notable Holdings & Rationale
- On appeal, Paye argued that having to flee Liberia because of ethnic cleansing and genocide against Krahns was past persecution. The First Circuit found that the IJ and BIA failed to properly address this claim and remanded for further consideration, noting that “it does not appear that the agency engaged with Liberia's potential unwillingness or inability to restrain his potential persecutors outside of the border attack, warranting remand.” Furthermore, “the agency's failure to analyze Paye's ethnic-cleansing-and-genocide-based past-persecution claim meant that it analyzed his future-persecution claim without the presumption.” Because the IJ acknowledged ongoing human-rights violations in Liberia and impunity of those who are responsible for atrocities during the civil war,” the presumption of future persecution “could have had a meaningful impact on Paye's chances of success.”
- The First Circuit further affirmed the BIA’s finding that the border attack did not rise to the level of pas persecution and rejected the government’s argument that it lacked jurisdiction to hear the claims on appeal.