Justia Immigration Law Opinion Summaries

Petitioner, using a fake Italian passport, came to the U.S. in 2002, at age 23. Less than a year later, she applied for asylum and withholding of removal, claiming that she feared returning to Albania because, as a young woman living alone, she would be kidnapped and forced into prostitution and that police would not protect her because she is Christian and supports the Democratic party, which was not in power. She claimed that she was harassed by the leader of a Muslim gang and that police had taken no action. An IJ granted asylum, concluding that she belonged to a particular social group comprised of young women targeted by traffickers for prostitution, and that the Albanian government was unwilling or unable to protect women such as her. The decision was vacated by the BIA. The Seventh Circuit denied review, finding that the proposed "group" to which petitioner belongs is defined solely by the persecution feared by its members and lacks the type of common, immutable characteristics otherwise required of a particular social group. Substantial evidence supported a conclusion that she did not establish well-founded fear of persecution if she returns to Albania.

Defendant, a U.S. citizen, had a romantic relationship and lived with an illegal alien, who was later arrested on drug charges. After being deported to Mexico, he returned illegally and again lived with defendant. When he was again arrested on drug charges, defendant was convicted under 8 U.S.C. 1324(a)(1)(A), (iii), as one who knowingly or in reckless disregard of the fact that an alien was in the U.S. in violation of law, concealed, harbored or shielded such alien. The statute also covers attempts and transportation. The district judge sentenced her to two years' probation and to pay a $200 fine. The Seventh Circuit reversed, distinguishing between "harboring" and providing shelter, without concealing or shielding from detection.

Petitioner, a Chinese woman, applied for asylum and for withholding of removal on the ground that because of her opposition to China's "one child"” policy she faces persecution if she is returned to China. She had been briefly jailed for resisting officers who came for her pregnant cousin. She came to the U.S. in 1999, married, and gave birth to two children who live in China with their grandparents and claims she faces sterilization. She applied for asylum seven years after the expiration of the one-year deadline. The BIA denied relief under 8 U.S.C. 1231(b)(3)(A). The Seventh Circuit denied review, reasoning that the alleged jail time and beatings may have been the result of resisting arrest or other factors, rather than based on opposition to government policy.

Petitioner, age 13, entered from Pakistan on a visitor's visa in 1979. The 1986 Immigration Reform and Control Act, allowed aliens who entered before 1982 and have remained continuously present to apply for legalization (8 U.S.C. 1255a). His 1987 attempt to apply was rejected because of a brief trip to Pakistan. The practice, "front-desking," was challenged in court. While litigation was pending, petitioner applied for amnesty and obtained work authorization. In 1992, he was convicted for possession of a concealed hunting knife. Returning from Canada while driving his truck route in 1995, petitioner was found to have a voter's registration stating that he was a citizen, but was allowed to reenter. He filed application under the Legal Immigration Family Equity Act, applicable to members of front-desking actions who establish continuous residence from 1982 to 1988. INS commenced deportation, aware of the pending amnesty application. The BIA dismissed an appeal. The Sixth Circuit denied review. In 2005 petitioner voluntarily appeared and was detained for four years. USCIS denied the 1997 amnesty application and the LIFE application. The AAO dismissed appeals; BIA reissued its 2001 deportation decision. The Seventh Circuit vacated. AAO failed to make an individualized decision about continuous presence and was not entitled to rely on the 1991 conviction as a ground to deny legalization.

The Mexican nationals in consolidated cases re-entered the U.S. without authorization, having been removed following conviction of crimes. Charged with being in the U.S. after having been deported (8 U.S.C. 1326(a)), they requested reductions in sentence because the district did not have a "fast track" program under which they could receive leniency in exchange for a guilty plea. The Seventh Circuit affirmed the district court's rejection of the argument. A district court need not address the argument unless the defendant has shown that he is similarly situated to those who would actually receive the benefit in a fast-track district. A defendant must promptly plead guilty, agree to the factual basis proffered by the government, execute an enforceable waiver of specific rights before or during the plea colloquy, establish that he would be eligible for a fast‐track sentence in at least one district offering the program, and submit the likely imprisonment range in that district.

Defendant, a native of Mexico, became a lawful permanent resident of the U.S. in 1978. In 1996, he filed an Application for Naturalization, disclosing that he had been arrested for a marijuana crime in the 1980s, and for disorderly conduct and trespassing in the 1990s, but that all charges had been dismissed. He did not reveal was that he had recently committed additional marijuana-related offenses for which he had not yet been charged. In 1998 he became a citizen and, weeks later, was charged with possession with intent to distribute 196 pounds of marijuana (21 U.S.C. 841(a)(1)) and conspiracy to possess with intent to distribute marijuana (21 U.S.C. 846). His sentence of 88 months was affirmed on appeal. Approximately three years after defendant was released from prison, the government sought to revoke his naturalization (8 U.S.C. 1451(a)). The district court granted judgment in favor of the U.S., finding that defendant was barred from establishing good moral character. The Seventh Circuit affirmed, declining to commit a "loophole" for those who evade detection and conviction until after they are naturalized.

Petitioner, a Ukrainian citizen who entered the U.S. without inspection sought withholding of removal under the Convention Against Torture. The Immigration Judge stated that she was continuing the case for four months, but that if she decided before that date,"you don't need to come back to court. Just make sure you stay in touch with your lawyers." Voluntary departure was not discussed. Three days later, the IJ denied the claims, but granted voluntary departure. Petitioner's lawyer allegedly did not receive the decision until the day before a $500 bond was due, and the bond was never paid. The BIA dismissed an appeal and rejected his request to reinstate. While the Board was deliberating, new regulations went into effect requiring immigration judges to advise the noncitizen, before granting voluntary departure, of the amount of the voluntary departure bond and the duty to post bond within five business days. 8 C.F.R. 1240.26(c)(4) (2009). The Seventh Circuit rejected an appeal. Warnings regarding voluntary departure are not retroactively applicable. Petitioner cannot raise a colorable due process claim as there was no procedural defect based on the lack of advisals, and he did receive (though flawed) notice of the bond requirement.

Petitioner, a 61-year-old Tunisian-Canadian dual citizen, met his wife, a U.S. citizen, in Canada and they married in 1977. They have two children. He became a lawful permanent resident of the U.S. in 1984. In 1988, he was charged in Illinois state court with aggravated battery, armed violence, and attempted murder; expert testimony established that petitioner suffered from major depression with psychotic features and he was found "guilty but mentally ill" of aggravated battery and armed violence and not guilty of attempted murder and was sentenced to four years' imprisonment. He unsuccessfully moved for a judicial recommendation against deportation. An INS attorney indicated that he could seek a waiver under section 212(c) in any subsequent proceeding. Congress repealed that section in 1996. Following a vacation in the Dominican Republic, he was charged as inadmissible for conviction of a crime involving moral turpitude. The IJ denied waiver and the BIA affirmed. The Seventh Circuit remanded. Although petitioner is not eligible for a 212(h) waiver because he committed a "crime of violence," the repeal of 212(c) does not apply retroactively to petitioner.

The petitioners in consolidated cases have been in the U.S. for many years without permission, and each would like to adjust his status to that of lawful permanent resident through relatives who are legitimately in the U.S. The IJ found each ineligible because of the lack of an approved family-relative petition, Form I-130. Each asked for a continuance. The IJ denied the request and ordered removal. The Seventh Circuit denied appeal after first determining that it had jurisdiction over the rulings on continuances. Appeal from revocation of an I-130 petition by one petitioner's son has already been denied, so a continuance would serve no purpose. The IJ provided a sound reason in the other case; the petitioner's four-year delay.

In 2005, petitioner, then a teenager, left Honduras and entered the U.S. illegally. When he was caught and DHS began removal proceedings, he filed an application for asylum, withholding of removal, and protection under the Convention Against Torture, claiming that he had suffered persecution at the hands of a street gang on account of his evangelical Christian religious beliefs and his church youth group membership. The Immigration Judge and the Board of Immigration Appeals denied the application because petitioner failed to establish that the gang's actions were on account of his religion or social group membership. The Seventh Circuit denied an appeal, finding the denial supported by substantial evidence.