Justia Immigration Law Opinion Summaries

Petitioner left Syria because of fears relating to indebtedness and was admitted to the U.S. as a nonimmigrant in 2000. He became acquainted with men involved in the September 11 attacks and later voluntarily provided the FBI with information. In October 2001 the INS issued a Notice to Appear charging petitioner as removable. He sought asylum and withholding of removal and relief under the Convention Against Torture and was transferred to FBI custody on a material witness warrant. The IJ granted the application for asylum (8 U.S.C. 1158), withholding of removal (8 U.S.C. 1231(b)(3)(A)), and withholding of removal pursuant to the CAT, finding that he belonged to the social group of "hopeless debtors," persecuted in Syria. Three years later, ICE indicated that his application might have been fraudulent and that petitioner might pose a threat to national security. The BIA reopened "sua sponte" and remanded. The district court dismissed, for lack of jurisdiction, a "Petition for Writ of Habeas Corpus and Stay of Removal Proceedings." The Third Circuit reversed concluding that, under these unusual circumstances, the district court has jurisdiction to review the BIA decision to reopen pursuant to 28 U.S.C. 1331 and the Administrative Procedure Act, 5 U.S.C. 701.

Petitioners, citizens of Mexico, entered the U.S. unlawfully in 1993 and 1998, respectively. Since 2000, husband has been seeking employment-based permanent residency. An individual who would not ordinarily qualify for lawful permanent residency because he entered without inspection, may apply as the beneficiary of a labor certification application or a visa petition filed on or before April 30, 2001, 8 U.S.C. 1255(i). According to the court, petitioners' former attorney provided incompetent, and at times ethically questionable, representation throughout the visa petition process, missing filing deadlines and sending associates to hearings without adequate information about the case, so that an IJ granted voluntary departure and the BIA affirmed denial of a motion to reopen. The Third Circuit denied review. The Due Process Clause does not guarantee an alien effective assistance of counsel in preparing, filing, and appealing a labor certification application and a visa petition before the start of removal proceedings. By the time removal proceedings began, petitioners had accrued more than one year of unlawful presence and would have been ordered removed regardless of counsel's actions.

From 1996 until 2003, petitioner, a Columbian, laundered money for Colombian drug traffickers. He was arrested and agreed to cooperate with the FBI. Conviction and sentencing were deferred. He worked with the FBI from 2003 to 2007. In 2007, petitioner was arrested in Colombia for failure to pay a fine years earlier. He paid the fine, but remained in jail for 22 days. He claims that his arrest was to facilitate his murder by the paramilitary group targeted by his FBI work. When he returned to the U.S. he was arrested because FBI agents believed he was involved in money laundering outside of his cooperation. Petitioner pled guilty based on the 1999 transfers. DHS charged him as removable. An IJ and the BIA denied his request for deferral of removal under the Convention Against Torture. The Third Circuit remanded. The BIA must consider that an applicant can establish governmental acquiescence even if the government opposes the paramilitary organization that is engaged in torturous acts. The BIA must also consider that country conditions can, by themselves, constitute grounds for determining that an applicant would more likely than not be subjected to torture upon return to the country of removal.

Petitioner, a citizen of Peru, entered the U.S., undocumented, in 2005. In 2007, he was arrested for driving while intoxicated; he was unlicensed. In removal proceedings, petitioner conceded removablity and, after being transferred from New Jersey to Louisiana, obtained a change of venue, retained new counsel and filed a motion to withdraw pleadings and a motion for an evidentiary hearing. The IJ found that petitioner's admission waived issues raised in his motions and ordered removal. The BIA dismissed, finding that: petitioner failed to establish that his concession to removability should be suppressed; his rights were not violated when he was transferred; and that evidence of his alienage was not suppressible under the Fourth Amendment. The Third Circuit denied review, first rejecting an ineffective assistance of counsel claim. An alien does not have the right to be detained where he believes his ability to obtain representation and present evidence would be most effective. Even if the police violated a directive from the state attorney general by contacting ICE, petitioner's rights were not prejudiced.

In 2000, petitioner, a citizen of Honduras, was admitted to the U.S. as a lawful permanent resident. Four years later, in a Pennsylvania state court, he was found guilty of sexual assault, a second degree felony, and indecent assault, a second degree misdemeanor, and was sentenced to imprisonment of 46 months to eight years. He was found not guilty of rape. DHS charged him as removable under 8 U.S.C. 1227(a)(2)(A)(iii), because he had been convicted of a crime of violence under 18 U.S.C. 16(b), which is an aggravated felony as defined by 8 U.S.C. 1101(a)(43)(F). The BIA ordered removal. The Third Circuit denied an appeal. rejecting an argument that the crime was not a "crime of violence" because the mens rea necessary for conviction is recklessness. Sexual assault, as defined by the statute, raises a substantial risk that the perpetrator will intentionally use force in furtherance of the offense, and, therefore, constitutes a crime of violence under 16(b).

Claudia illegally entered the U.S. in 1998 or 1999; her younger sister, Silvia illegally entered in 2005. About a year later, DHS charged each with removability under the Immigration and Nationality Act (INA), 8 U.S.C. 1182(a)(6)(A)(i). Both sisters conceded removability but applied for asylum, withholding of removal, and CAT protection, claiming that if they are returned to Guatemala, they will be persecuted by a violent gang the government allegedly cannot control. Silvia had been in witness protection for assisting the government's efforts against the gang and a cousin who was involved with the gang. An immigration judge rejected the petitions and the BIA affirmed. The Third Circuit denied Claudia's appeal, but remanded Silvia's case for a determination of whether the harm she might face rises to the level of persecution and whether she had been safely resettled in Mexico. Silvia shares a common, immutable characteristic with other civilian witnesses who have the shared experience of assisting law enforcement against violent gangs that threaten communities in Central America.

Petitioner sought to enter the U.S. with a stolen French passport in 2005, but was intercepted. Numerous proceedings ensued arising from Department of Homeland Security removal proceedings against him. Petitioner sought asylum, withholding of removal, and relief under the Convention Against Torture, claiming to fear returning to Guinea because he believes he will be persecuted on account of his political opinion attributable to his membership in the Rally of Guinean People Party. The Board of Immigration Appeals rejected his arguments. The Third Circuit vacated for reconsideration, noting a change in power in Guinea. The court did not address the merits.

Petitioner and his wife, citizens of Georgia, a former U.S.S.R. republic, entered the U.S. on visitor visas in 1999 and remained longer than authorized. In 2004, petitioner filed an affirmative application for asylum, withholding of removal, and protection under the Convention Against Torture, claiming that he had been persecuted for his political beliefs. Petitioner was thereafter placed in removal proceedings, where he renewed and updated his application for asylum. The Board of Immigration Appeals dismissed. The Third Circuit vacated and remanded. The adverse credibility determination was not supported by substantial evidence. Petitioner's due process rights were violated when the Immigration Judge "completely took over the cross-examination for government's counsel, and thereby ceased functioning as a neutral arbiter."

Petitioner, born in 1984, is a citizen of Honduras. He came to the U.S. in 2004 without being admitted. In Removal proceedings, petitioner sought asylum, withholding of removal, and relief under the Convention Against Torture, claiming that he fled Honduras because members of a criminal gang had threatened to kill him, that he filed police reports, but received no response, and that he was kidnapped by gang members and beaten before being freed by Guatemalan police. The Immigration Judge denied the applications although he found no reason to disbelieve the testimony. The Board of Immigration Appeals affirmed. The Third Circuit vacated. On remand, the BIA again concluded that petitioner failed to show that he had experienced past persecution or had a well-founded fear of future persecution on account of a classification that is protected under the INA. The Third Circuit remanded the asylum and withholding of removal applications, but denied the petition for review on the claim under the Convention Against Torture. The BIA's addition of the requirements of "social visibility" and "particularity" to its definition of "particular social group" is inconsistent with its prior decisions, and the BIA has not announced a "principled reason" for its adoption of those inconsistent requirements. The court acknowledged that there was no evidence that the gang knew of petitioner's political opinion and targeted him because of it and that evidence support the BIA finding that the Honduran government seeks to combat the gang problem and protect its citizens.

Petitioner, a citizen of the Dominican Republic, was admitted in 1991 as a conditional permanent resident. Upon her return to the United States from a 2007 trip, she was charged with inadmissibility as an alien convicted of a crime of moral turpitude (8 U.S.C. 1182(a)(2)(A)(i)(I)), arising from a 1999 conviction for receiving stolen property, criminal conspiracy, and criminal solicitation. She sought cancellation of removal based upon seven years of continuous residence (8 U.S.C. 1229b(a)). The immigration judge applied the "stop-time rule," 8 U.S.C. 1229b(d)(1)under which any period of continuous physical presence in the U.S. is deemed to end when the alien has committed an offense referred to in section 1182(a)(2). The BIA upheld the decision, ruling that a conviction record showing August 18, 1998 as the incident date established that her criminal conduct occurred before seven years of continuous residency had elapsed. The Third Circuit denied review. The phrase "has committed" in section 1229b(d)(1) means the stop-time rule is triggered either by an alien's criminal conduct occurring on a particular date before the end of the seventh year of continuous residence, or conduct that runs up to the date when the seventh year of residency ends.