Justia Immigration Law Opinion Summaries

Zundel entered the U.S. in 2000 under the Visa Waiver Program, 8 U.S.C. 1187. He married a citizen, and applied for permanent residency (8 U.S.C. 1255). He did not attend his INS interview; the INS denied the application. In 2003 he was presented with a Warrant of Deportation. He filed a “Writ of Habeas Corpus, Petition for Temporary Restraining Order and Preliminary Injunction, Complaint for Constitutional Violations, Petition to Set Bond.” The district court and Sixth Circuit denied relief. Zundel was removed with notice that he was prohibited from returning for 20 years, 8 U.S.C. 1182(a)(9). Zundel filed amended petitions for habeas corpus, mandamus, and injunctive relief, and a Bivens claim for damages. The district court dismissed habeas claims. The Sixth Circuit converted to a petition for review under the REAL ID Act of 2005, 119 Stat. 231 and denied review. The district court dismissed remaining claims and denied amendment. The Sixth Circuit affirmed. Challenge to a determination that Zundel entered under the VWP (thereby waiving appeals) is barred by res judicata. The court lacked subject matter jurisdiction over a challenge to the bar of inadmissibility. A claim for loss of consortium fails to state a claim and a Bivens claim is time-barred.View "Zundel v. Holder" on Justia Law

Petitioner met a U.S. citizen, 28 years her senior, when he visited St. Petersburg, Russia in 1991. The two married in 1998, and petitioner moved to the U.S. and became a lawful permanent resident on a conditional basis, 8 U.S.C. 1186a(a)(1). To allow her to stay in the country permanently, husband and wife were required to submit a joint petition two years after her initial entry, swearing that their marriage was legal, that it had not been annulled or terminated, and that they had not married each other for immigration purposes. They submitted the required joint petition, but divorced before it could be processed. Petitioner sought a hardship waiver, for unconditional permanent residency as an alien whose marriage to a citizen has ended if the alien demonstrates that the marriage was entered into in good faith. After a hearing, an immigration judge found that petitioner had not married in good faith but had done so only to enter the U.S. and ordered her removed to Russia. The BIA affirmed. The Sixth Circuit denied review, stating that it lacked jurisdiction to consider most of petitioner's claims. View "Johns v. Holder" on Justia Law

Thiam, a black woman and a member of the Wolof tribe in Mauritania, suffered physical and sexual violence by white Arab members of the military. She was sent to Senegal, where she lived for about 14 years. She arrived in the U.S. in 2004 with a fake Senegalese passport and applied for asylum. Thiam attended three hearings in Cleveland in 2007, but the presiding IJ was in Arlington, Virginia and conducted the hearings via videoconference. For her final hearing, Thiam traveled to Arlington, believing that her credibility would be apparent in a personal appearance. The IJ found Thiam credible, but concluded that she was barred from seeking asylum because she had firmly resettled in Senegal (8 U.S.C. 1158(b)(2)(A)(vi)). The IJ found, that though Thiam did suffer past persecution, improvements in the human rights record of Mauritania indicated that she could return to Mauritania. Thiam appealed and sought remand for consideration of new evidence regarding a military coup in Mauritania. The BIA affirmed, applying Fourth Circuit law. The Sixth Circuit declined transfer to the Fourth Circuit as not in the interest of justice, and remanded. The BIA did not follow its own framework for firm-resettlement determinations. View "Thiam v. Holder" on Justia Law

In 2000, a citizen of Lebanon and a lawful permanent resident of the U.S., filed a Form I-130 relative visa petition on behalf of her son, as an unmarried, adult child of a permanent resident, under 8 U.S.C. 1153(a)(2). USCIS approved the petition. Five years later, the son married a U.S. citizen and was admitted as a conditional permanent resident; several months later, the marriage was annulled. In response to notice of intent to terminate his conditional permanent resident status, he indicated that he had separately applied to adjust his status based on the approved visa petition his mother had previously filed on his behalf. USCIS indicated that the status had been automatically revoked on the date of marriage to a citizen. DHS initiated removal. In a suit claiming that, under Michigan law, annulment voids a marriage ab initio, so that USCIS should treat him as though he were never married, the district court determined that the decision of the Secretary of Homeland Security to revoke a visa petition is discretionary and not subject to judicial review. The Sixth Circuit affirmed the dismissal for lack of jurisdiction. View "Mehanna v. U.S. Citizenship & Immigration Serv." on Justia Law

Petitioner, a professor, told the FBI and the university that she had received hate mail at her office. The FBI and the university spent thousands of dollars investigating before she admitted to writing and delivering the mail herself. In light of overwhelming evidence of guilt and unable to obtain testimony to support a claim of diminished capacity, petitioner's attorney encouraged a plea. Because petitioner is a citizen of India, he consulted an immigration attorney, who opined, incorrectly, that the matter was not an aggravated felony and that she would not necessarily be deported. Petitioner pled guilty to violating 18 U.S.C. 1001, was sentenced to six months in prison, and ordered to pay more than $66,000 in restitution. An immigration judge found her removable under 8 U.S.C. 1227(a)(2)(A)(iii) and the BIA dismissed an appeal. In a companion case, the Sixth Circuit agreed. While in prison, petitioner unsuccessfully challenged her sentence, but not her plea or conviction. After completing her sentence, she filed a petition for a writ of coram nobis, arguing ineffective assistance of counsel. The district court denied the motion. The Sixth Circuit affirmed. Petitioner did not show a reasonable probability that she was prejudiced by the incorrect advice.

During 1998, while living in Tashkent, petitioner graduated from medical school, married, and had a son. He is of the Dungan ethnicity, a group he says is readily distinguishable from ethnic Uzbekis. He claims that they faced substantial persecution due to their ethnicity. He was arrested at least once and held for three days, during which he was beaten with batons. He claims that his wife died as the result of a police beating. He entered the U.S. on a nonimmigrant visa in 2001. His petition for asylum, withholding of removal, and relief under the Convention Against Torture, was denied, based on an adverse credibility determination and a lack of corroborating evidence. The Sixth Circuit denied review, while acknowledging that the agency decision suffers from a number of errors regarding its findings on credibility and corroborating evidence. The court found that one critical credibility finding was supported by substantial evidence.

A citizen of Côte d’Ivoire, charged with removability as an alien present without having been admitted or paroled, applied for asylum, withholding of removal, Convention Against Torture protection, and cancellation of removal. The Immigration Judge found petitioner not credible, relying on an inconsistency in a medical record. After filing a notice of appeal, petitioner's new counsel discovered that the medical record had been translated incorrectly and submitted an affidavit from the company that translated the record and a corrected translation. The Sixth Circuit stayed the appeal to allow consideration by the Board of Appeals because the translation error appeared to have contributed substantially and directly to the adverse credibility determination.

Petitioner, a citizen of Trinidad, entered the U.S. at age 16, for a 1987 track competition and remained beyond expiration of her visa. Before college, she was involved in a scheme in which a U.S. citizen, received money to claim to be her husband. Both admitted to the fraud, which petitioner attributed to her coach. No removal action followed. At college she met a U.S. citizen, who became her husband in 1999. They have sons, work, and own a home. Petitioner filed for adjustment of status based on the marriage, but the request was denied under 8 U.S.C. 1154(c) because of her involvement in the fraud. She conceded removability under 8 U.S.C. 1227(a)(1)(B), but contested the fraud allegation. Although she had 10 years of continuous presence, good moral character, and lack of certain criminal convictions, the IJ denied cancellation of removal under 8 U.S.C. 1229b(b)(1)(A)-(C), finding that petitioner had not shown that removal would cause her husband or children to suffer more hardship than would normally be expected under the circumstances. The BIA affirmed. The Sixth Circuit dismissed an appeal for lack of jurisdiction. Although petitioner is very sympathetic, the explicit preclusion of review of cancellation denials applies.

A citizen of Canada, admitted in 1963 as a lawful permanent resident, has held academic positions at universities. In 1983, he was convicted of larceny and of taking money under false pretenses. In 1984, he was convicted of mail and wire fraud. He was imprisoned from 1992 to 1995, for violating parole. In 1990, the INS charged deportability under 8 U.S.C. 1227(a)(2)(A)(ii) based on conviction of two crimes involving moral turpitude not arising out of a single scheme. In 1997 INS added grounds under 8 U.S.C. 1227(a)(2)(A)(iii): conviction of an aggravated-felony theft offense, and an aggravated-felony fraud offense involving losses exceeding $10,000. The IJ, found petitioner deportable. The BIA affirmed, but remanded because the INS had granted the Attorney General discretion to waive deportation of lawful permanent residents, otherwise deportable for having committed crimes. DHS added another ground, charging that his 1984 conviction qualified as an aggravated felony because it constituted an attempt or conspiracy to commit fraud or deceit involving over $10,000 in losses. In 2007 the IJ denied all claims. The BIA agreed. The Sixth Circuit denied a petition for review, rejecting procedural claims and his claim that removal proceedings should be terminated based on his prima facie eligibility for naturalization under 8 C.F.R. 1239.2(f).

In 1996, an immigration judge ordered petitioner deported unless he voluntarily left the U.S. In 2009 he was detained and sought a stay of removal, claiming he had departed before the 1996 voluntary-departure deadline, precluding his conditional order of removal from becoming a final order of removal. He presented an expired Mexican passport and a marriage certificate, both issued in Mexico in 1998. The application was denied and petitioner was deported. The Sixth Circuit dismissed an appeal for lack of jurisdiction. Federal courts of appeal do not have jurisdiction over denials of petitions to stay removal; petitioner had not appealed to the BIA the decisions on his motion for a speedy bond hearing and never challenged his removability in 1996. He cannot challenge enforcement of the 1996 order as if it were a new order.