Justia Immigration Law Opinion Summaries

Lin, a citizen of the People’s Republic of China, entered the U.S. illegally in 2004. In 2008, he was served with a Notice to Appear and conceded removability under 8 U.S.C. 1182(a)(6)(A)(i), but petitioned for asylum, withholding of removal, and protection under the Convention Against Torture. Lin asserted that he fled China to escape religious persecution because of his Christianity. He claims that he was detained for five days, and that he was interrogated about his church, severely beaten, and deprived of water and sleep. The IJ denied Lin relief and ordered him removed, based on Lin’s failure to seek asylum within one year of his arrival, and on an adverse credibility determination. Lin asked the BIA to reopen proceedings, claiming to have previously unavailable evidence showing that he is now wanted for arrest in China for his religious practices. Lin did not explain how he obtained this new documentation, nor did he note any efforts to authenticate it. Lin also failed to file a new application for asylum. The BIA held that Lin did not satisfy his burden of showing prima facie eligibility for relief and denied his motion to reopen. The Third Circuit denied his appeal. View "Lin v. Attorney Gen. of the United States" on Justia Law

Kouevi lived in Togo. From 2001- 2005, Kouevi conspired to fraudulently obtain “diversity visas,” 8 U.S.C. 1153(c)), for at least 34 people through the American Embassy in Togo. The head of the scheme, Afolabi, paid fees for persons who were eligible for the diversity lottery and assisted them with their paperwork, requiring the applicants to falsely represent that others were their spouses or children, so that those individuals could obtain visas. Kouevi was responsible for false documents and tutoring participants to prepare them for Embassy interviews. Afolabi helped Kouevi fraudulently obtain his own visa and paid his costs to come to the U.S. The Department of Homeland Security arrested Afolabi for bringing young girls to the U.S. and forcing them to work at hair braiding salons, 16 hours a day, 6 to 7 days a week, for several years, without pay. They were also subjected to beatings and rape. Kouevi was convicted of conspiracy to commit visa fraud, 18 U.S.C. 371, and visa fraud, 18 U.S.C. 1546(a) and 2, and sentenced to 26 months imprisonment. The Third Circuit affirmed, rejecting an argument that his conduct was not criminalized by the part of the statute he was indicted under. View "United States v. Kouevi" on Justia Law

Hanif, a citizen of Guyana, entered the U.S. on a fraudulent visa during the 1980s. After his marriage to a naturalized citizen, Hanif applied for a waiver of his ground of inadmissibility. In 2006 an IJ and adjusted Hanif to Lawful Permanent Resident status. In 2008, Khadoo, a friend, was arrested for possession of a forged instrument. In exchange for reduced charges against Khadoo, Hanif turned over $5,100 in counterfeit bills and offered to cooperate in the counterfeiting investigation. He subsequently fled the country. When Hanif returned, he was arrested and paroled into the U.S. He pled guilty to dealing in counterfeit currency, 18 USC 473. DHS began removal proceedings; he applied for waiver, claiming that removal would cause extreme hardship to his wife and children. An IJ found him ineligible for a waiver under 8 U.S.C. 1182(h), noting a BIA holding that an alien who entered the U.S. without inspection and later obtained LPR status through adjustment has previously been admitted as an LPR, and must satisfy the seven year continuous residence requirement. The BIA affirmed. The Third Circuit vacated, finding that the statutory language is unambiguous and requires that the prior admission has been made while the alien was in LPR status. View "Hanif v. Atty Gen. of the United States" on Justia Law

ICE officers entered the home Ramos shared with relatives with an administrative warrant for a sister, with no information about the identity or legal status of other occupants. During the next 15 hours, the agents detained and questioned the occupants, under circumstances that were allegedly extremely stressful. Ramos produced documents showing that he is a citizen of Guatemala; he did not produce any documentation that he was lawfully present in the U.S. The IJ denied a motion to suppress evidence found during the raid, although Ramos was detained without a warrant. Ramos asserted that the agents entered his home without valid consent and in violation of administrative regulations. He sought production of documents related to his search, seizure, and arrest, and ICE procedures. The IJ never ruled on that motion, but found Ramos removable. The BIA dismissed an appeal, declining to address a Fourth Amendment claim and finding that any regulatory violations did not alter the outcome. The Third Circuit vacated and remanded. The exclusionary rule may apply in cases where constitutional violations by immigration officers are widespread or evidence was obtained as a result of egregious violations of the Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence. View "Oliva-Ramos v. Atty Gen. of the United States" on Justia Law

Green, a citizen of Jamaica, entered the U.S. on a tourist visa in 2002. In 2006, his status was adjusted to that of a lawful permanent resident. Weeks later, he was arrested on charges of possession of a controlled dangerous substance with intent to distribute. He pled guilty. In 2008, Green was arrested again on charges of possession and distribution of a controlled dangerous substance and pled guilty. In 2010, DHS charged him as removable under 8 U.S.C. 1227(a)(2)(B)(i). Green applied for deferred removal under the Convention Against Torture, testifying that he feared that he would be tortured by the Shower Posse, a Jamaican drug gang. He had witnessed the 1998 killing of a police officer and an informant and had identified the shooters. His sister and his brother were subsequently killed; Green himself had been attacked in downtown Kingston. Although the IJ found Green’s testimony credible, she denied his application; he “failed to meet his burden to establish that the Shower Posse would be acting on behalf of the government of Jamaica or that the government of Jamaica would acquiesce in the actions of the Shower Posse,” as required under CAT. The BIA affirmed. The Third Circuit denied a petition for review. View "Green v. Atty Gen. of the United States" on Justia Law

Roye, a 58-year-old native of Jamaica, was admitted to the U.S. in 1984 as the spouse of a citizen. In 1992, he pled guilty to aggravated assault and endangering the welfare of a child by having sexual intercourse with his eight-month old daughter. The trial judge sentenced Roye to six to 20 years’ imprisonment but strongly recommended transfer into a psychiatric facility. Fourteen years later, DHS charged him as removable under 8 U.S.C. 1227(a)(2)(A)(iii). An Immigration Judge found that Roye granted for deferral of removal under the Convention Against Torture. The IJ emphasized testimony indicating “that mentally ill detainees and prisoners are often sexually and physically assaulted in the Jamaican prison system because of the nature of their mental illness” and that Roye will be homeless in Jamaica due to a lack of family ties. The BIA ordered immediate removal. The Third Circuit reversed, holding that the BIA must review the conclusion that the evidence demonstrates that Roye’s persecutors will physically and sexually abuse him in a manner that rises to the level of torture under the CAT, and decide whether Jamaican public officials will consent to or acquiesce in such abuse. View "Roye v. Atty Gen. of the United States" on Justia Law

Martinez, a native of Nicaragua, entered the U.S. without inspection in 1985. In 1989, he married a citizen, had a daughter, and began adjusting his status to lawful permanent resident. In 1990, Martinez pleaded guilty to sexual assault of his eight-year-old stepdaughter. In 1991, prior to sentencing, Martinez traveled to Nicaragua to complete the immigrant visa application process. The consulate approved his application. Martinez was admitted to the U.S.as a permanent resident the following day. He was later sentenced to four years in prison. Martinez was released on parole in 1992. The Department of Homeland Security initiated removal in 2009. Martinez argued that he was eligible for adjustment of status under former INA Section 212(c), which waived the bar against status adjustment for convicted aggravated felons who had at least seven years unrelinquished residence, at least five years as an LPR, and had not served more than five years in prison. The IJ found Martinez statutorily ineligible for relief. The BIA agreed that he had “never been lawfully admitted for permanent residence.” The Third Circuit denied review. A person accorded status as “lawfully admitted for permanent residence” upon physical entry, who did not substantively qualify for such status, is barred from relief. View "Martinez v. Atty Gen. of the U.S." on Justia Law

Duran, a native of the Dominican Republic, was admitted to the U.S. as a legal permanent resident in 1981. He married in 1988 and fathered two children. In 1997 he applied for naturalization. He completed his examination under oath. When a final decision did not come in the mail, Duran made repeated calls to the agency, attempting to be scheduled to take the Oath. Nearly ten years later, he pled guilty to conspiracy to distribute and possess narcotics and possession with intent to distribute cocaine and was sentenced to 51 months’ imprisonment. The government instituted removal proceedings under 8 U.S.C. 1227(a)(2)(B)(i) and 8 U.S.C. §1227(a)(2)(A)(iii). Although he did not challenge the convictions, he argued that he was not removable because his 1997 naturalization application had been finalized. He also argued that he should not be removed because the government’s loss of his file precluded him from taking the Oath and thereby prevented his naturalization and citizenship. Meanwhile, the government denied his naturalization based on his 2008 convictions The Immigration Judge ordered him removed to the Dominican Republic. The BIA dismissed Duran’s appeal. The Third Circuit denied appeal. View "Duran-Pichardo v. Attorney Gen. of the U.S." on Justia Law

A citizen of India, Desai was admitted to the U.S. as a lawful permanent resident in 1980. He acquired convictions for: burglary and criminal mischief (1991), burglary and conspiracy to commit burglary (1992), burglary (1992), theft (1993), theft (1994), shoplifting (1997), possession of marijuana (2000), disorderly conduct (2001), and theft and possession of a controlled substance in the third degree (2002). In 2008, Desai was charged with removability based on his 1994 and 2002 convictions. He applied for relief under the Convention Against Torture, alleging that his HIV-positive status made him vulnerable to discrimination and persecution in India. A year after Desai’s removal, his 2002 conviction was vacated. After the 90-day window, 8 U.S.C. 1229a(c)(7)(C), Desai moved to reopen sua sponte. The BIA held that it lacked jurisdiction because the post-departure bar, 8 C.F.R. 1003.2(d), precludes a removed person from filing a motion to reopen. The Third Circuit denied appeal. While the court previously held the post-departure bar invalid to the extent it conflicted with the Illegal Immigration Reform and Immigrant Responsibility Act, 8 U.S.C. 1229a(c)(7), (granting aliens the right to file one motion to reopen under certain conditions), it can be invoked as a basis for refusing to reopen under 8 C.F.R. 1003.2(a).View "Desai v. Attorney Gen. of the U.S." on Justia Law

Father and son, citizens of Pakistan, were admitted to the U.S. as nonimmigrant visitors in 1990. After they overstayed their visas, the Immigration and Naturalization Service initiated removal proceedings. Father sought asylum, withholding of removal, and protection under the CAT, claiming that he was persecuted in Pakistan based on his membership in the Pakistan People’s Party. Son, a minor, was listed as a derivative beneficiary. In 2000, an Immigration Judge denied the applications because they presented no credible evidence of past persecution or fear of future persecution. The BIA affirmed in 2003, and the two did not petition for review. In 2010, seven and one-half years later, they filed with the BIA a motion for an emergency stay of removal and a motion to reopen their case. Before the BIA rules, they sought review by the Third Circuit, and, after the BIA denial, they again sought review. After concluding that it had jurisdiction despite the premature filing, the Third Circuit denied review. View "Khan v. Attorney Gen. of U.S." on Justia Law