Justia Immigration Law Opinion Summaries

Castillo, a citizen of Peru, entered the U.S. without inspection in 1985, became a temporary resident in 1988, and adjusted his status to lawful permanent residency in 1990. In 1994, he pleaded guilty to shoplifting in New Jersey and was ordered to pay a $200 fine. He had been convicted for receiving stolen property in 1989 and for contempt. Charged as removable, Castillo claimed that he was eligible for cancellation of removal under 8 U.S.C. 1229b(a), an alien who has “resided in the United States continuously for 7 years after having been admitted in any status.” Continuous residence ends “when the alien has committed an offense referred to in section 1182(a)(2) … that renders the alien . . . removable… under section 1227(a)(2).” Under 8 U.S.C. 1227(a)(2)(A)(ii), an alien is removable if convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct. The IJ denied relief and, following a remand, the BIA affirmed. The Third Circuit remanded for a second time, directing the BIA to consider whether Castillo was convicted of a crime under section 1227(a)(2)(A)(ii) and to provide an explicit justification for its answer. View "Castillo v. Att'y Gen. of the U.S." on Justia Law

Rojas, a 22-year old citizen of the Dominican Republic, entered the U.S. in 2003 as a lawful permanent resident. In 2009, Rojas pled guilty to possessing drug paraphernalia and was assessed a fine and court costs by the Pennsylvania state court. The Department of Homeland Security initiated removal proceedings for having violated a law “relating to a controlled substance (as defined in section 802 of Title 21),” 8 U.S.C. 1227(a)(2)(B)(i). Rojas argued that the offense that constitutes the basis of removal must involve a substance defined in section 802 of Title 21. The BIA ordered Rojas removed. The Third Circuit, en banc, remanded. In a removal proceeding under section 1227(a)(2)(B)(i), the government must show that the conviction for which it seeks to remove a foreign national involved or was related to a federally controlled substance. In this case, the Department failed to meet its burden. View "Rojas v. Att'y Gen. of the United States" on Justia Law

Rachak, a citizen of Morocco, was admitted to the U.S. as a lawful permanent resident in 2002. In 2006, he was charged with possession of marijuana and was placed on probation with supervision under Pennsylvania’s “Accelerated Rehabilitative Disposition” program. He did not comply with the conditions of the program and pled guilty to the charge. In 2011, Rachak pled guilty to charges of possession of cocaine and drug paraphernalia and was sentenced to two consecutive terms of 12 months of probation. The Department of Homeland Security charged Rachak with being removable under 8 U.S.C. 1227(a)(2)(B)(i). Rachak then filed a Pennsylvania Post Conviction Relief Act petition attacking his 2011 conviction. For a time, he obtained immigration continuance, but when Rachak’s attorney advised the Immigration Judge that his PCRA petition had been denied at the trial level and was on appeal, the IJ denied further continuances, ordered Rachak removed, and noted that his 2006 conduct rendered him ineligible for cancellation of removal under 8 U.S.C. 1229b(a) because he had not accrued seven years of continuous residence. The BIA affirmed. The Third Circuit rejected a petition for review. View "Rachak v. Att'y General of the United States" on Justia Law

Al-Sharif is a lawful U.S. permanent resident. He and others arranged to connect callers in Israel to callers in countries with no direct phone service to Israel, for a fee, by routing the calls through a New Jersy apartment. Al-Sharif rented the apartment and set up phone service using a false name and Social Security number. He later abandoned the apartment without leaving a forwarding address or paying the phone bill. As a result, in 1993 Al-Sharif pleaded guilty to conspiracy to commit wire fraud in violation of 18 U.S.C. 371, with a stipulation that his fraud caused loss to the victim of between $120,000 and $200,000. He was sentenced to six months’ home confinement and five years’ probation, and was ordered to pay $128,838 in restitution to the phone company. In 2004, Al-Sharif applied to become a naturalized citizen and truthfully disclosed his conviction. His application was denied by USCIS, which treated the conviction as for an “aggravated felony” under 8 U.S.C. 1101(a)(43)(M)(i), which precluded him, under 8 U.S.C. 1101(f)(8), from demonstrating “good moral character,” as required for naturalization under 8 U.S.C. 1427(a)(3). The district court granted summary judgment to USCIS. The Third Circuit affirmed. View "Al-Sharif v. U.S. Citizenship & Immigration Serv." on Justia Law

Verde, a native of Mexico, became a lawful permanent resident in 1991. After several DUI convictions, he was sentenced to more than two years in prison. In 1998, Verde was charged with removability as an “aggravated felon.” He appeared before an immigration judge with seven other Mexican nationals, was deported, returned, and was removed for a second time in 2000. In 2011 the removal order was reinstated and he was charged with illegal reentry, 8 U.S.C. 1326. The government dropped that charge and allowed him to plead guilty to use of a false Social Security number, 42 U.S.C. 408(a)(7)(B). He was sentenced to time served and supervised release. Verde filed a habeas corpus petition seeking to be reinstated as a permanent resident or to be granted cancellation of removal, arguing that his initial removal was a gross miscarriage of justice because of procedural shortcomings and that, because the Supreme Court has decided that a DUI conviction is not an aggravated felony, his conviction was not a valid basis for original removal. The district court dismissed Verde’s petition for lack of subject matter jurisdiction, reasoning that the REAL ID Act of 2005, 8 U.S.C. 1101, eliminated habeas relief in district courts for aliens challenging orders of removal. The Third Circuit dismissed for lack of jurisdiction. View "Verde-Rodriguez v. Att'y Gen of the United States" on Justia Law

Ashurov, a Tajikistani citizen, entered the U.S. under a visitor’s visa in 2007 and later sought a student visa. The application required submission of Form I-20, the school’s petition to sponsor a student. Ashurov stated that he planned to study English as a Second Language at the CMG School. CMG certified the form and Ashurov signed it without an oath, as required. The application was granted. In 2009 and 2010, Ashurov presented identical forms. In 2010, federal authorities determined that CMG was not providing students the required 18 hours of weekly in-class instruction. The school was closed and its designated official indicted. A jury convicted Ashurov under 18 U.S.C. 1546(a), which punishes a person who “knowingly makes under oath, or ... under penalty of perjury ... knowingly subscribes as true, any false statement with respect to a material fact in any ... document required by the immigration laws ... or knowingly presents any such ... document which contains any such false statement or which fails to contain any reasonable basis.” The district court granted an acquittal, finding that the oath requirement applied to both the “knowingly makes” and “knowingly presents” clauses and, alternatively, applying the rule of lenity. The Third Circuit affirmed, reasoning that the statute is “grievously ambiguous.” View "United States v. Ashurov" on Justia Law

The district court permanently enjoined enforcement of two Hazleton ordinances that attempt to prohibit employment of unauthorized aliens and preclude them from renting housing within the city. The Third Circuit affirmed in 2010. The Supreme Court granted certiorari and remanded for reconsideration in light of Chamber of Commerce v. Whiting, S. Ct. 1968 (2011). The Court later decided Arizona v. United States, 132 S. Ct.2492 (2012). Both address the extent to which federal immigration law preempts state laws pertaining to the treatment of unauthorized aliens. On remand, the Third Circuit again concluded that both the employment and housing provisions of the Hazleton ordinances are preempted by federal immigration law. The employment provisions in the ordinance are distinguishable from the Arizona law upheld in Whiting. The lack of minimal procedural protections in Hazleton’s ordinance conflicts with express congressional objective of minimizing undue burdens on, and harassment of, employers. The rental registration scheme serves no discernible purpose other than to register the immigration status of a subset of the city’s population. The Supreme Court’s reasoning in Whiting and Arizona does not undermine a conclusion that both the employment and housing provisions are preempted. View "Lozano v. City of Hazleton" on Justia Law

Moreno, born in Mexico in 1971, was adopted by a U.S. citizen at age nine. New Mexico issued a birth certificate, indicating a birth place of Mexico. In the 1990s, Moreno was convicted of possession with intent to distribute a controlled substance and of false imprisonment. In 2006, she was deported, after an immigration judge, the Board of Appeals, and the Fifth Circuit found that she was not a U.S. citizen. She returned to the U.S. in 2007 and obtained a passport, listing her place of birth as New Mexico. In 2008, the passport was confiscated by Border Patrol, but it was never revoked. She was released pending investigation. In 2011, DHS informed her that she was not a citizen. When she arrived in St. Thomas after a cruise, she told immigration officers that she was a U.S. citizen and presented her New Mexico driver’s license and a copy of her U.S. passport. Moreno was charged with falsely representing herself to be a citizen, 18 U.S.C. 911. On the night before trial, the government disclosed a DHS report concluding that the passport was valid but recommending investigation into her citizenship. Moreno did not accept a continuance. The district court did not admit the documents into evidence, finding that the non-exculpatory information had been previously disclosed. The court also declined to admit an FBI report, listing her citizenship as “United States,” and rejected an argument that the passport was conclusive evidence of citizenship. Moreno was sentenced to 29 months. The Third Circuit affirmed, holding that under 22 U.S.C. 2705, a passport constitutes conclusive proof of citizenship only if issued to a U.S. citizen. View "United States v. Moreno" on Justia Law

A native of Ecuador, Espinoza became a lawful permanent resident of the U. S. in 1980. In 1994, he was charged with deportability based on a 1993 conviction for selling cocaine. Espinoza sought waiver of deportation. Prior to his hearing, Espinoza was paroled into the custody of the Immigration and Naturalization Service and his proceedings were administratively closed in 1994. As a result, Espinoza's application for relief was never adjudicated. In 2004, he was arrested again; in 2007, Espinoza was convicted of conspiracy to possess with intent to distribute cocaine, 21 U.S.C. 846, 841(a)(1), and 841(b)(1)(A), and was sentenced to 120 months' imprisonment. The Department of Homeland Security reopened deportation proceedings and supplemented the 1994 charges. After several delays, in 2010 the deportation hearing proceeded, although Espinoza still had not obtained counsel. He was ordered removed. The BIA remanded. The judge held that Espinoza was ineligible for relief under former INA section 212(c) and entered a second order of deportation. The BIA affirmed and Espinoza was deported. The Third Circuit agreed that an alien who has spent more than five years in prison for an aggravated felony is not eligible for a waiver of deportation under former section 212(c). View "Lupera-Espinoza v. Att'y Gen. of the United States" on Justia Law

Under the Immigration and Nationality Act, immigration officials “shall take into custody any‖ deportable alien who has committed various crimes” when the alien is released from detention for those crimes, 8 U.S.C. 1226(c)(1). The Act requires officials to hold such aliens without any possibility of release while awaiting removal. Sylvain, a citizen of Haiti, entered the U.S. as a legal permanent resident in 1988. He has been convicted of more than 10 drug-related crimes and served a three-year prison sentence for making and selling cocaine. He was convicted for unlawfully possessing a weapon and for criminal mischief. Sylvain was last arrested in 2007 for possessing drugs. He pled guilty and received a conditional discharge. Under New York law, a conditional discharge does not require imprisonment or probation. Immigration and Customs Enforcement officials arrested him in 2011, concluding that he was deportable and subject to mandatory detention, although he was last in custody four years earlier. The district court granted his petition for habeas corpus, finding that mandatory detention did not apply. Sylvain received a hearing, paid bond, and is not in custody. His next removal hearing is in 2014. The Third Circuit reversed; mandatory detention does not require immediate detention. View "Sylvain v. Att'y Gen. of the U.S." on Justia Law