Petitioner, a native and citizen of Mexico, challenged the BIA's decision affirming the IJ's finding that he was not eligible for cancellation of removal or voluntary departure because he had a prior criminal conviction for a crime involving moral turpitude (CIMT). The Eighth Circuit denied the petition for review, holding that the BIA did not err by affirming the IJ's finding that petitioner had a conviction for Aggravated Forgery and that he was ineligible for cancellation of removal. The court held that petitioner's probation, community service, and fines constitute court-imposed penalties under 8 U.S.C. 1101(a)(48). View "Mendoza-Saenz v. Sessions" on Justia Law

Petitioner, a native and citizen of Grenada, sought review of the BIA's decision affirming the IJ's denial of his applications for cancellation of removal, asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The applications were denied based on petitioner's conviction under NYPL 220.31 for criminal sale of a controlled substance in the fifth degree. The Second Circuit held that NYPL 220.31 defines a single crime and is therefore an indivisible statute. Therefore, the BIA should have applied the categorical approach. Applying the categorical approach, the court held that petitioner's conviction did not constitute a commission of an aggravated felony and consequently did not bar him from seeking cancellation of removal and asylum. The court held that it lacked jurisdiction to consider the remainder of the petition. Accordingly, the court granted the petition in part, vacated the BIA's rulings in part, and remanded. View "Harbin v. Sessions" on Justia Law

After petitioner committed a drug crime but before his crime was adjudicated, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 8 U.S.C. 1101(a)(13)(C)(v). At issue was whether the statute can be given effect with respect to petitioner's crime, even though he committed the crime before the statute's passage. The Second Circuit held that the presumption against retroactive legislation barred such an application because the plain text of the statute attaches legal consequences at the time a lawful permanent resident commits a crime, rather than at the time of conviction. Accordingly, the court granted the petition for review, vacated the BIA's order of removal, and remanded for further proceedings. View "Centurion v. Sessions" on Justia Law

Herrera-Ramirez is a citizen of Mexico but has lived in the U.S. since she was six years old. She is married and has four U.S.-citizen children. She was at a Milwaukee bar when her friends got into a fight with other patrons. Herrera-Ramirez ushered her friends out of the bar and into her car, intending to leave. At the request of her friend, she drove past the other patrons who were standing outside the bar. Her passenger shot two of the bystanders. After the shooting, Herrera-Ramirez did not contact the police. The police found her, arrested her, and found the gun in her car. She was convicted of first-degree reckless injury and sentenced to 11 months in prison. An IJ and the BIA found that her offense was a “particularly serious crime” and that she was ineligible for withholding of removal (the only possible relief). The Seventh Circuit dismissed her petition for review from that determination for lack of jurisdiction; a court may not second-guess the Board’s decision that a crime is “particularly serious” under 8 U.S.C. 1252(a)(2)(B)(ii), unless the petitioner has raised a question of law. Herrera-Ramirez was disputing only the Board’s discretionary characterization of her offense. View "Herrera-Ramirez v. Sessions" on Justia Law

Tsegmed, a citizen of Mongolia, overstayed a nonimmigrant visa and has lived in the U.S. since 2004. In 2008, after his second DUI arrest, the government placed him in removal proceedings. He sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Tsemed had been a high-ranking officer in the Mongolian military and had knowledge of the internal workings of the governing Communist regime. He and his friend, Bayarbat, became involved with the pro-democracy movement and were arrested twice. Bayarbat’s family was killed; Tsegmed believes the government caused the deaths of his son and his brother and that agents were still looking for him. The IJ denied relief; the BIA affirmed. The Seventh Circuit denied a petition for review, stating that it lacked jurisdiction to review the denial of his asylum application because Tsegmed had missed the filing deadline and had not established material changes or extraordinary circumstances. The evidence did not compel the conclusion that he is eligible for withholding or CAT relief. Tsegmed had a subjectively genuine fear of persecution is not objectively reasonable. The Democratic Party controls the presidency and a plurality of the Mongolian parliament. The State Department reports that there are no official political prisoners or detainees in Mongolia View "Otgonbaatar Tsegmed v. Jefferson B. Sessions III" on Justia Law

Lopez, a citizen of El Salvador, entered the U.S. without inspection around 1996. In 1997, he was convicted of felony possession of marijuana. In 2015, DHS charged Lopez as removable as an alien present in the U.S. without being admitted or paroled, 8 U.S.C. 1182(a)(6)(A)(i); and as an alien convicted under a controlled substance law, 8 U.S.C. 1182(a)(2)(A)(i)(II). Lopez sought asylum and withholding of removal, alleging extortion by Salvadoran gangs. The IJ denied Lopez’s application because Lopez had not filed his asylum application within one year of his last entry; his lack of knowledge about the process did not constitute changed or extraordinary circumstances. The IJ held that Lopez’s fear of persecution was “[n]either objectively reasonable [n]or on account of any of the statutorily enumerated grounds,” as there was no evidence that any future mistreatment would be on account of Lopez’s race, religion, nationality, political opinion, or social group membership. The BIA dismissed an appeal, rejecting an argument that the gang would target Lopez based on its perception of him as a wealthy business owner who failed to comply with its demands. The Seventh Circuit dismissed an appeal for lack of jurisdiction. Lopez failed to establish that his life or freedom would be threatened based on a protected ground. View "Lopez v. Sessions" on Justia Law

The Immigration and Nationality Act, 8 U.S.C. 1401(a)(7), provides a path to citizenship for a child born abroad if the child’s U.S.-citizen parent has 10 years’ physical presence in the U.S. before the child’s birth, “at least five of which were after attaining” age 14. Section 1409(c) provides that an unwed U.S.-citizen mother's citizenship can be transmitted to a child born abroad if she has lived continuously in the U.S. for one year before the child’s birth. Morales-Santana’s father, José, moved to the Dominican Republic 20 days before his 19th birthday, so he did not satisfy 1401(a)(7)’s requirement for physical presence after age 14. A Dominican woman gave birth to Morales-Santana in 1962. José accepted parental responsibility. Morales-Santana has lived in the U.S. since he was 13. In 2000, the government sought to remove Morales-Santana based on criminal convictions, ranking him as alien. The Supreme Court affirmed the Second Circuit, ruling in Morales-Santana’s favor. The statute’s gender line is incompatible with the Fifth Amendment’s equal protection requirement. Morales-Santana has third-party standing to vindicate his deceased father’s rights. The Court applied “heightened scrutiny” and found no important governmental interest for the law’s “overbroad generalizations.” Given the choice between extending favorable treatment to the excluded class or withdrawing favorable treatment from the favored class, the Court noted that extension of favorable treatment to fathers would displace Congress’ general rule, the longer physical-presence requirements. Pending Congressional action, the five-year requirement should apply, prospectively, to children born to unwed U.S-citizen mothers. View "Sessions v. Morales-Santana" on Justia Law

President Trump, in issuing Executive Order 13780, "Protecting the Nation from Foreign Terrorist Entry Into the United States," exceeded the scope of the authority delegated to him by Congress. After determining that plaintiffs have standing to assert their claims based on the Immigration and Nationality Act (INA), the Ninth Circuit held that plaintiffs have shown a likelihood of success on the merits of that claim and that the district court's preliminary injunction order could be affirmed in large part based on statutory grounds. The panel declined to reach the Establishment Clause claim to resolve this appeal. The panel held that, in suspending the entry of more than 180 million nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for the 2017 fiscal year, the President did not meet the essential precondition to exercising his delegated authority pursuant to 8 U.S.C. 1182(f). The President failed to make a sufficient finding that the entry of the excluded classes would be detrimental to the interests of the United States. The panel also held that the Order violated other provisions of the INA that prohibit nationality-based discrimination and require the President to follow a specific process when setting the annual cap on the admission of refugees. Accordingly, the panel affirmed in large part; vacated portions of the injunction that prevent the Government from conducting internal reviews and the injunction to the extent that it runs against the President; and remanded with instructions. View "Hawaii v. Trump" on Justia Law

Members of the notorious Salvadoran gang, MS13, shot Serrano-Alberto's brother, leaving him paralyzed; extorted Serrano-Alberto , an acclaimed professional soccer player; and, when he ceased to pay, shot Serrano-Alberto, his nephew, and a neighbor, killing the neighbor and leaving the others in serious condition. Police refused to take a report because Serrano-Alberto did not know the names of the shooters. Fearing reprisal, Serrano-Alberto twice attempted to flee but was returned by Mexican authorities. In 2009-2012, Serrano-Alberto was imprisoned in El Salvador on extortion charges; he was ultimately absolved. Gang members continued to search for him. They shot another his brothers for refusing to divulge Serrano-Alberto’s whereabouts. In 2012, Serrano-Alberto escaped harm in a drive-by shooting by diving under a car. Serrano-Alberto moved multiple times. His mother warned that gang members were continuing to pursue him. In 2014, Serrano-Alberto observed apparent gang members in his new neighborhood and fled to the U.S.He was apprehended and applied for asylum, withholding of removal, and protection under the Convention Against Torture. At his hearing, the IJ was “confrontational, dismissive, and hostile, interrupting and belittling Serrano-Alberto’s testimony, time and again cutting off his answers to questions, and nitpicking immaterial inconsistencies.” She ordered removal. The BIA denied relief. The Third Circuit vacated and urged reassignment on remand. The Fifth Amendment protects the liberty of all persons within U.S. borders, including aliens in immigration proceedings who are entitled to a meaningful opportunity to be heard. View "Serrano-Alberto v. Attorney General United States" on Justia Law

Chagoya‐Morales, a citizen of Mexico, illegally entered the U.S. In 2008, he was convicted of aggravated robbery. In 2009, he was deported. Chagoya‐Morales did not obtain permission to reenter. In 2015, Chicago Police conducted a traffic stop on a vehicle in which Chagoya‐Morales was a passenger. The officers allegedly observed Deantes using her cell phone while driving. Approaching Deantes’s car, the officers smelled a strong odor of cannabis emanating from the vehicle, conducted a pat down search of Chagoya‐Morales, and recovered a small plastic bag containing marijuana. Chagoya‐Morales was charged with illegal reentry into the U.S., 8 U.S.C. 1326(a) and 6 U.S.C. 202(4). Chagoya‐Morales filed a motion to suppress, arguing that the traffic stop was illegal and so that the government’s knowledge of his name and his immigration status should be suppressed as “fruit of the poisonous tree.” The Seventh Circuit upheld the denial of the motion and the addition of 16 offense levels under the “crime of violence” enhancement in U.S.S.G. 2L1.2(b)(1)(A)(ii). The Fourth Amendment does not prohibit police from requiring a person to identify himself, nor does it guarantee a defendant the right to conceal his identity during a criminal prosecution. Chagoya‐Morales’s prior 2008 conviction is a crime of violence under the guidelines. View "United States v. Chagoya-Morales" on Justia Law