Articles Posted in U.S. 3rd Circuit Court of Appeals

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Mayorga, a native of El Salvador, entered the U.S. as a teenager in 1988 because of the then on-going civil war in El Salvador. He applied for asylum in 1995, and has had work authorization since then. He married a U.S. citizen and has five children under the age of 15, all U.S. citizens. In 2010, Mayorga pled guilty to engaging in the unlicensed business of firearms dealing, 18 U.S.C. 922(a)(1)(A) and (a)(2), and was sentenced to 46 months in prison. When he was released, the Department of Homeland Security served Mayorga with notice of removal proceedings, alleging two grounds: under 8 U.S.C. 1182 (a)(6)(A)(i), as an alien present in the U.S. without having been admitted or paroled, and having been convicted of a crime involving moral turpitude (CIMT) under section 212(a)(2)(A)(i)(I). At his hearing Mayorga contested his removability for having been convicted of a CIMT and applied for cancellation of removal, voluntary departure, asylum, withholding of removal, and withholding of removal under the Convention Against Torture (CAT). The IJ denied each application, reasoning that if Mayorga’s crime was not categorically a crime involving moral turpitude, he would likely be ineligible for cancellation of removal under the “person of good moral character” requirement, 8 U.S.C. 1229b(b)(1)(B). The BIA upheld the decision. The Third Circuit reversed, holding that Mayorga would suffer a serious adverse consequence if his crime were found to be a categorical CIMT, and that his challenge was therefore justiciable. Mayorga’s crime was not categorically a CIMT. View "Mayorga v. Att'y Gen. of the U.S." on Justia Law

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In 2011 Cadapan, a citizen of the Philippines and a lawful permanent U.S. resident, was convicted of indecent assault with a person less than 13 years of age, indecent assault without consent, corruption of minors, and was sentenced to a term of imprisonment not less than three months nor more than 23 months and supervised probation for 36 months, In 2012, Cadapan was granted parole and was transferred to the custody of the Department of Homeland Security, which charged him with removability under 8 U.S.C. 1227(a)(2)(A)(iii), as an alien who, after admission, was convicted of an aggravated felony as defined in 8 U.S.C. 1101(a)(43)(A) and with removability under 8 U.S.C. 1227(a)(2)(E)(i), as an alien convicted of a crime of child abuse. He argued that the Pennsylvania statute for indecent assault encompassed conduct that could not be considered sexual abuse of a minor under the federal statute. The Immigration Judge rejected this argument. The BIA dismissed Cadapan’s appeal. The Third Circuit dismissed and also rejected an argument that the statute did not apply because Cadapan had not been admitted to the U.S. as not having been raised below. View "Cadapan v. Att'y Gen. of U.S." on Justia Law

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In 1984, Petitioner, a citizen of Colombia, was admitted to the U.S. at age 20 as a lawful permanent resident. He married a U.S. citizen and has a son, also a citizen. Until 2009, Petitioner lived without incident. In 2009, he was stopped at a checkpoint near North Hudson, New York, with two passengers in his car. Petitioner admitted that he was aware they were illegal aliens, that he had picked them on the U.S. side of the border, that he was to be paid $1,000 to drive them to Queens, and that he had performed such work twice before. Petitioner was charged with Bringing In and Harboring Aliens, 8 U.S.C.1324(a)(2)(B)(ii) and 18 U.S.C. 2, and Transporting Illegal Aliens, 8 U.S.C. 1324(a)(1)(A)(ii), (a)(1)(B)(i). Charged with removability under 8 U.S.C. 1227(a)(2)(A)(iii), based on conviction for an aggravated felony, Petitioner applied for adjustment of status under 8 U.S.C. 1255(a). The government conceded that an aggravated felony conviction does not, alone, render an alien ineligible for adjustment of status, but urged that conviction under 1324(a)(2)(B)(ii) rendered him inadmissible under 8 U.S.C. 182(a)(6)(E)(i), as “an alien who … knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or try to enter the United States in violation of law.” The IJ denied adjustment of status. The BIA affirmed. The Third Circuit reversed. Petitioner’s conduct did not constitute encouraging, inducing, assisting, abetting, or aiding another alien to enter the U.S. View "Parra-Rojas v. Att'y Gen. of the U.S." on Justia Law

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Galarza, a U.S. citizen, was working at a construction site. The contractor sold cocaine to an undercover detective, Correa, who arrested the contractor, Galarza, and other employees for conspiracy to deliver cocaine. Galarza had a wallet, containing his Pennsylvania driver’s license, his Social Security Card, a debit card, and his health insurance card. The complaint listed Galarza’s place of birth as Perth, N.J. and contained his Social Security Number and date of birth. Correa called ICE and provided Galarza’s information. Galarza claims that, by making the call, Correa indicated that she suspected Galarza had given false identification information. Galarza was detained and went through booking; officials took his wallet and its contents. ICE Agent Szalczyk, acting on information relayed by Correa, filed an immigration detainer that described Galarza as a suspected “alien” and citizen of the Dominican Republic. The detainer was not accompanied by a warrant, an affidavit of probable cause, or a removal order. A surety company posted bail, but Galarza was told that he would not be released. Galarza had not been interviewed by ICE nor provided with a copy of the detainer. Three days after his arrest, a counselor told Galarza about the detainer. Galarza protested and urged the counselor to retrieve his wallet. The counselor refused. Galarza later met with ICE officers. The detainer was removed and Galarza was released about three days after his arrest. Galarza was acquitted and filed complaints under 42 U.S.C. 1983 and the Federal Tort Claims Act, 28 U.S.C. 346(b). The district court dismissed the complaint against Lehigh County, holding that it could not be held responsible for Galarza’s detention because it was compelled to follow the detainer. The Third Circuit vacated. Immigration detainers do not compel a state or local law enforcement agency to detain suspected aliens subject to removal. View "Galarza v. Szalczyk" on Justia Law

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Zhu, from Fujian Province, China, entered the U.S. in 1999 without proper documentation. In an INS interview, she stated that she feared persecution under China’s population control policies. She was paroled into the U.S. for a hearing. In 2000, Zhu applied for asylum, withholding of removal, and protection under the Convention Against Torture. Zhu testified that birth control officials tried to force her to wear an IUD. The IJ found Zhu’s testimony lacked credibility and ordered her removed. The BIA affirmed. In 2002, Zhu moved to reopen, alleging that she had married and given birth to a son and would be forcibly sterilized if she returned to China. The BIA denied the motion, noting that Zhu was not in violation of Chinese population control policies and had not shown that a Chinese national becomes automatically subject to punitive birth control measures if she returns with a child born outside China. In 2008, Zhu again moved to reopen, alleging that she had given birth to two more children and that the Chinese government now counted children born overseas when considering violations of population control policies. She submitted a notice indicating that Zhu must submit to sterilization upon her return to China, and a letter from her mother, noting that the officials had learned about her children. The BIA denied the motion. In 2013, Zhu filed a third motion, with voluminous documentation. The BIA denied Zhu’s motion to reopen. The Third Circuit vacated, stating that the BIA’s opinion did not reflect meaningful consideration of much of the evidence. View "Zhu v. Att'y Gen. of United States" on Justia Law

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Bautista, a legal permanent resident, was ordered removed from the U.S. as an alien convicted of a crime involving moral turpitude, 8 U.S.C. 1182(a)(2)(A)(i)(I). The IJ found him ineligible for cancellation of removal because his New York conviction for attempted arson constituted an aggravated felony, 8 U.S.C. 1229b(a). The Board of Immigration Appeals dismissed his appeal, finding that the arson conviction fell within the definition of an aggravated felony under 8 U.S.C. 1101(a)(43). The Third Circuit granted a petition for review. The attempted arson conviction is not an aggravated felony with respect to collateral immigration consequences. Applying the categorical approach, the New York statute under which Bautista was convicted does not match the elements of 18 U.S.C. 844(i), the corresponding federal statute, which requires a connection to interstate commerce. View "Bautista v. Att'y Gen. of the U.S." on Justia Law

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In 2011, the Department of Labor (DOL) issued a new regulation governing calculation of the minimum wage an employer must offer (prevailing wage) under the H-2B visa program, which permits U.S. employers to recruit foreign workers to fill unskilled, non-agricultural positions that no qualified U.S. worker will accept, 8 U.S.C. 1101(a)(15)(H)(ii)(b). Associations representing employers in non-agricultural industries that recruit H-2B workers, concerned about higher labor costs as a result of the 2011 Wage Rule, challenged its validity. The district court and the Third Circuit upheld the regulation, rejecting arguments that DOL lacked authority to promulgate legislative rules concerning the H-2B program and that, even if the DOL has such rulemaking authority, its violation of certain procedural requirements invalidated the Rule. View "LA Forestry Ass'n, Inc. v. Sec'y U.S. Dep't of Labor" on Justia Law

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Eid, a Lebanese national, entered the U.S. as a non-immigrant under an H1-B visa issued based on a petition by Eid’s employer Pickett, a U.S. citizen. Eid married Pickett and they began living together. Pickett’s I-130 Petition to have Eid legally established as her husband for immigration purposes was granted in 1999. Eid filed an I-485 Application. During his 2001 INS interview for permanent residence, Eid withdrew his application. Pickett was allowed to withdraw her petition. Both gave sworn affidavits, indicating that they married to enable Eid to stay in the U.S., but the marriage was never consummated, and that they did not intend to live together as husband and wife. Their marriage was annulled. Removal proceedings began against Eid. In 2003, he married Packard, an American citizen, with whom he had a son in 2006. Packard filed an I-130 Petition in 2004. CIS determined the marriage to be genuine, but denied the petition. The BIA affirmed, based on 8 U.S.C. 1154(c), which requires denial of petitions of aliens who previously received or attempted to receive immigration benefits based on a marriage “entered into for the purpose of evading the immigration laws.” The district court ruled in favor of the government. The Third Circuit affirmed, rejecting an argument that, because Eid did not intend to break the law by his first marriage, section 1154(c) should not apply. View "Eid v. Thompson" on Justia Law

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Orabi, an Egyptian citizen, was admitted to the U.S. in 1990. He became a lawful permanent resident without conditions in 1996. In 2010, he was convicted, in federal court, of conspiracy to commit fraud in connection with access devices, possession of counterfeit access devices, possession of counterfeit and forged checks, and aggravated identity theft, and was sentenced to 70 months in prison. Appeal to the Second Circuit is pending. DHS initiated removal proceedings under 8 U.S.C. 1227(a)(2)(A)(iii) based on conviction for an aggravated felony. Orabi notified DHS and the Immigration Court that he was appealing the conviction, and DHS moved to withdraw the removal charge. At a subsequent removal hearing, Orabi appeared pro se. Following an ambiguous exchange, removal charges were reinstated, although there is no documentary evidence that Orabi withdrew his appeal. Orabi was ordered removed. The BIA dismissed an appeal. The Third Circuit reversed. A conviction does not attain a sufficient degree of finality for immigration purposes until direct appellate review of the conviction has been exhausted or waived. View "Orabi v. Att'y Gen. of U.S." on Justia Law

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Taveras, a citizen of the Dominican Republic, entered the U.S. as a lawful permanent resident in 1978, at age one year. He has left the country only at age five and at age 13. In 2009, he married a U.S. citizen. He is the father of two U.S. citizens. Several other relatives are U.S. citizens. The Department of Homeland Security (DHS) initiated removal in 2003 based upon his 1999 New York conviction for possession of crack cocaine, 8 U.S.C. 1227(a)(2)(B)(i). Taveras sought cancellation of removal under 8 U.S.C. 1229b(a), applicable to certain permanent residents who can demonstrate lengthy physical presence and substantial ties in the U.S., and have not committed an aggravated felony. The Immigration Judge terminated the proceedings. In 2010, DHS instituted a second removal proceeding, based on 2006 and 2008 convictions for petit larceny, under 8 U.S.C. 1227(a)(2)(A)(ii) (commission of two or more crimes involving moral turpitude). Taveras sought adjustment of status under 8 U.S.C. 1255(a), and waiver of inadmissibility under 8 U.S.C. 1182(h). The IJ granted the applications, reasoning that Taveras had received a “waiver” of the 1999 drug conviction such that he could no longer be found inadmissible for that offense or ineligible for waiver. The BIA found Taveras ineligible to adjust his status and receive a waiver, stating that waiver of inadmissibility or deportability waives only the ground charged, but not the underlying basis for removability. The Third Circuit denied Taveras’s petition, upholding the order of removal. View "Fernandez v. Att'y Gen. of the U.S." on Justia Law