Justia Immigration Law Opinion Summaries

In 1990, defendant, a Mexican citizen, illegally entered the US. Between 1994 and 2005, he was convicted of multiple crimes, including theft and drug offenses, and was deported twice. In 2009, he was convicted in state court of attempted aggravated kidnapping and sentenced to four years in prison. While serving that sentence, he was discovered by immigration authorities. He pleaded guilty to illegal reentry without a plea agreement, 18 U.S.C. 1326(a). At sentencing, after a 16-level enhancement pursuant to USSG 2L1.2(b)(1)(A), the district court determined an offense level of 12 and a criminal history category of IV. The corresponding range was 57-71 months in prison. The Seventh Circuit affirmed, rejecting arguments that: defendant was deprived of the opportunity to argue for a concurrent sentence and should therefore be given credit for time already served on his attempted aggravated kidnapping conviction; to avoid unwarranted sentencing disparities, a below-Guidelines sentence is appropriate to account for the lack of a fast-track program in the Northern District of Illinois; and that that the district court erred when it added a 16-level enhancement. View "United States v. Garcia-Ugarte" on Justia Law

Defendant, a 27-year-old Mexican citizen, pleaded guilty to being in the U.S. after being deported, 8 U.S.C. 1326(a), and was sentenced to 71 months, the top of the 57-71 month guidelines range. The Seventh Circuit affirmed, rejecting an argument that the judge should not have taken into account 41 arrests that had not resulted in convictions without determining that defendant had actually engaged in conduct for which he was arrested. A court may not rely on the prior arrest record itself in determining a sentence, but may consider underlying conduct detailed in arrest records where there is sufficient factual basis to conclude that the conduct actually occurred. For 15 arrests there was a summary either of a petition for adjudication of wardship or of the arrest report. The defendant did not question the accuracy of any of those and did not suggest that the other 26 arrests were ungrounded. The judge was entitled to assume that the arrests considered as a whole, coupled with five convictions, gave a more accurate picture of the likelihood of recidivism than the convictions and arrest summaries alone and justified the sentence. Given defendant’s criminal record, there was no basis for a cultural-assimilation adjustment. View "United States v. Lopez-Hernandez" on Justia Law

Mund, an American, married Liu, a Chinese woman in China. They moved to the U.S. For Liu to be admitted as a permanent resident, her husband had to sign an I-864 affidavit, agreeing to support his wife at 125 percent of the poverty level ($13,500 a year), if they divorced, 8 U.S.C. 1183a. They divorced two years later. Without relying on the affidavit, the divorce court ordered Mund to support Liu for one year at $500 a month, contingent on her proving that despite making at least four job applications a month, she had not found work. Mund refused to provide support specified in the federal affidavit because Liu was not seeking work. The district judge held that Liu was not entitled to support while not seeking work. The Seventh Circuit reversed, holding there is no duty of mitigation with respect to obligations under the affidavit. The court noted form language that the obligation continues “until my death or the sponsored immigrant(s) have become U.S. citizens, can be credited with 40 quarters of work, depart the U.S. permanently, or die.” The level of support is meager, so the sponsored immigrant has a strong incentive to seek employment, apart from any legal duty. View "Liu v. Mund" on Justia Law

Jawad, a Jordanian citizen, entered with his wife and son on a non-immigrant visa that expired in 1987. Before 1989, they had five more children in the United States. In 1998, they divorced. Six months later, Blankenship, a U.S. citizen, filed a visa petition, representing that she and Jawad had married. Blankenship later admitted that the marriage was fraudulent: Jawad had agreed to pay Blankenship $10,000. After ending his relationship with Blankenship, Jawad bought a home and invited his ex-wife and their children to move in with him. He did not divorce Blankenship. He was eventually charged as removable under INA 212(a)(6)(C)(i) for remaining in the country on an expired visa and fraudulently entering into a marriage to secure an immigration benefit. Four years later, USCIS approved a new immediate-family visa petition for Jawad, on his behalf by his daughter, a citizen who had reached her 21st birthday. Following a hearing, the IJ found Blankenship the more credible witness, primarily because she was not promised protection from criminal liability for her testimony and decided that Jawad failed to show he merited a favorable exercise of discretion. The BIA dismissed an appeal. The Seventh Circuit dismissed for lack of jurisdiction. View "Jawad v. Holder" on Justia Law

Petitioner was ordered removed to Mexico in 2004 and appealed to the Board of Immigration Appeals, which affirmed. Almost two years later, he moved to reopen based on ineffective assistance of counsel. A motion to reopen must be made within 90 days of the final administrative order of removal, 8 U.S.C. 1229a(c)(7)(C)(i). He did not make an equitable-tolling argument nor provide sufficient factual support for the Board to consider that argument. The Board held that the motion was time-barred. Two weeks later, moved for reconsideration, attaching new evidence for an equitable tolling argument. The Board denied the motion, holding that the evidence was insufficient and that new evidence may not be submitted with a motion for reconsideration. The Seventh Circuit dismissed an appeal for lack of jurisdiction. While a petition for certiorari was pending, the Supreme Court held that Congress intended courts to review denials of motions to reopen. On remand, the Seventh Circuit reviewed the merits and upheld the Board. Petitioner unsuccessfully moved the Board to reopen under its sua sponte authority. On appeal, he conceded that his motion was numerically barred and argued that his case presented “exceptional circumstances” under which the Board usually grants such a motion. The Seventh Circuit dismissed. The motion was committed to the Board’s discretion by law and was unreviewable. View "Anaya-Aguilar v. Holder" on Justia Law

In 1997 Javier unlawfully entered the U.S.; he married in 2001. In 2007 the bank hired wife. Husband, attempting to start a business, could not open a bank account without a social security number. He obtained an individual tax identification number. Wife named him a joint owner on her account and helped use his ITIN to open accounts of his own. The business failed. Husband returned to Mexico to deal with his citizenship. Wife revealed the situation to her supervisor, requesting time off to help husband obtain citizenship. The supervisor agreed and called the bank security officer, who was concerned that the accounts might implicate bank fraud laws. During a meeting, the security officer became angry and berated wife. Wife refused to attend another meeting without her attorney The bank terminated her employment and reported her activity to U.S. Immigration and Customs Enforcement and a consortium of area banks. Wife sued, claiming blacklisting, defamation, emotional distress, and employment discrimination, 42 U.S.C. 2000e. The district court granted the bank summary judgment. The Seventh Circuit affirmed, holding that any discrimination was not based on race or national origin, but on an unprotected classification, husband’s status as an alien lacking permission to be in the country. View "Cortezano v. Salin Bank & Trust Co." on Justia Law

Petitioners, citizens of the Philippines, entered the U.S. under nonimmigrant visas in 2003 and 2004. Wife’s employer petitioned on her behalf for alien-worker status, and she applied for adjustment of status She is a nurse, a skilled worker under 8 U.S.C. 1153(b)(3)(A)(i) or (ii). Husband applied for adjustment of status as her spouse. The petition for worker status was granted in late 2004. Subsequent applications for adjustment of status were denied because wife had not submitted evidence of certification to practice nursing; results of an English exam were pending. They reapplied for adjustment of status a few months later. The applications were denied. An IJ ordered removal, finding wife ineligible for adjustment of status under her second application because she filed it after living in the U.S. unlawfully for more than 180 days. The BIA dismissed an appeal and denied reconsideration. Petitioners moved to reopen in 2011, contending that they were newly eligible for adjustment of status because their daughter, a U.S. citizen age 21, had petitioned to adjust status on their behalf; those petitions had been approved. The Board denied the motion as untimely. The Seventh Circuit denied review, finding the Board’s interpretation of the statute and regulation reasonable.View "Sarmiento v. Holder" on Justia Law

Following criminal convictions involving controlled substances and a firearm, defendant, an illegal immigrant, was deported to Mexico in 2004. He unlawfully returned to the U.S. in 2008. Less than one year later, he was arrested for domestic violence and obstruction of justice and pled guilty in state court. He was charged with reentry by a previously deported alien, 8 U.S.C. 1326(a). The district court rejected an attempt to enter a conditional guilty plea, because he was unwilling to knowingly and voluntarily waive certain trial rights. Convicted, he was sentenced to 41 months. The Seventh Circuit affirmed stating that the court did not coerce defendant into proceeding to trial. The plea colloquy transcript suggests that the court diligently and patiently questioned him about his willingness to waive his trial rights. View "United States v. Bahena-Navarro" on Justia Law

In 1989, petitioner illegal entered the U.S. from Mexico. He married another illegal alien in 1992 and they have three children, 5-18 years old, who are U.S. citizens. In 2000 INS commenced removal. Petitioner sought cancellation of removal under 8 U.S.C. 1229b(b)1. An immigration judge found that petitioner had established requisite continuous physical presence and good moral character, but failed to show that removal would result in exceptional and extremely unusual hardship to his children. The BIA affirmed. The Seventh Circuit denied an appeal. The ALJ’s manner of questioning and exclusion of testimony from one of petitioner’s daughters did not deprive petitioner of a full and fair hearing.View "Delgado v. Holder" on Justia Law

Petitioner, a Mexican citizen who has lived in the U.S. for many years and is a lawful permanent resident, was ordered removed because of two Illinois convictions for possessing and trafficking in cocaine. He sought cancellation of removal, based on having lawful permanent resident status for at least five years and having resided here for at least seven years without conviction of an aggravated felony, 8 U.S.C. 1229b(a). The BIA affirmed denial, citing petitioner's long history of arrests and convictions. The Seventh Circuit denied an appeal, rejecting a claim that the BIA overlooked mitigating circumstances in the form of family hardship. Petitioner's parents, wife, and children are U.S. citizens and do not plan to relocate to Mexico if the petitioner is sent back there. His parents claim that they would be afraid to visit because of violence in Mexico. View "Munoz-Pacheco v. Holder" on Justia Law