Justia Immigration Law Opinion Summaries

Petitioners, husband and wife, are Macedonian Slavs. In 2001 husband was drafted into the Macedonian Army. He refused to report, because he disapproved of government efforts to suppress Albanian demands for greater rights. In 2002 husband and pregnant wife were victims of a home invasion; assailants held a gun and stated that petitioners were "betrayers of Macedonia" and "did not participate in the war." The assailants fondled wife, beat husband, and stole money and jewelry. Police arrived six hours later and implied that the assailants were fellow police, more influential because of their paramilitary character. Petitioners fled, arriving in the United States without a visa. Removal proceedings were instituted. Requests for asylum and other relief were denied. The Board of Immigration Appeals affirmed. The Seventh Circuit granted the petition and remanded. Withholding of removal (8 U.S.C. 1231(b)(3)) requires a determination that the applicant will more likely than not be subjected to persecution if removed from the United States. A finding of past persecution creates a rebuttable presumption of future persecution. What happened to the petitioners was persecution, not just harassment. The statement that there is no evidence of human rights abuses by the Macedonian army in 2001 ignored the State Department's country report.

Petitioner, a native of Mexico, entered the United States illegally in 1987, married the next year, eventually raising three children, and remained until returning briefly to Mexico in August 2001. Border Patrol apprehended her as she attempted to re-enter. In custody, petitioner completed a Form I-826 "Notice of Rights and Request for Disposition" in which she admitted her illegal presence, waived a hearing, and agreed to return to Mexico. In May 2003, she was apprehended in an unrelated immigration raid. She applied for cancellation of removal, but the Immigration Judge found her ineligible. The Bureau of Immigration Appeals and Seventh Circuit affirmed. The 2001 border apprehension and subsequent decision to admit illegal presence and return to Mexico had the effect of a break in continuous physical presence within the United States (8 U.S.C. 1229b(b)(1)(A)). The incident amounted to a formal, documented process; petitioner was taken into custody and the form adequately explained the legal consequences.

Petitioner, a native of Syria, entered the U.S. on a fiance visa, but did not marry within 90 days. More than a year after her visa expired, she conceded removability and sought asylum as a Christian, subject to persecution in a Muslim country. The immigration judge denied the petition as untimely and found that she did not establish a clear probability that she would be persecuted; the BIA dismissed an appeal. The Seventh Circuit dismissed for lack of jurisdiction. An alien must apply for asylum within one year of arrival unless the alien demonstrates to the satisfaction of the Attorney General either changed circumstances which materially affect eligibility for asylum or extraordinary circumstances relating to the delay in filing, 8 U.S.C. 1158(a); courts have no jurisdiction to review the Attorney General's determination. The denial of the petition to withhold removal was supported by substantial evidence.

The petitioner overstayed her visa. At a removal hearing she asserted a Fifth Amendment claim and would not answer questions, but did not request asylum or indicate any fear of return to Pakistan. Following a removal order, she remained. She moved to reopen her case seven years later. The Board of Immigration Appeals rejected a "changed conditions" argument for asylum. The Seventh Circuit affirmed. The Board correctly assessed both the claim of changed conditions in Pakistan and the merits of the petitioner's case and did not deprive her of due process. Her claims concerning her status as an unmarried, "westernized" woman were too speculative.

The petitioner, born in Germany in 1957, was admitted as a lawful permanent U.S. resident in 1961. In 1990 he entered a plea of guilty to two counts of aggravated sexual abuse of a minor. He was discharged from parole in 1993; 14 years later the Department of Homeland Security issued a notice to appear. An immigration judge found the petitioner ineligible for waiver under 8 U.S.C. 1182(c) and the Board of Immigration Appeals dismissed an appeal. The Seventh Circuit denied relief. A waiver must be denied if the alien is deportable on a ground that does not have a statutory counterpart in section 212 of the Act; an aggravated felony involving sexual abuse of a minor has no statutory counterpart. It is irrelevant that he could have been charged differently and may have believed, when he entered his plea, that he was eligible for waiver. The court rejected due process and equal protection arguments.

After pleading guilty to being in the United States without authorization after removal, 8 U.S.C. 1326(a), the defendant requested a prison term below the guidelines range on the grounds that his criminal history category was overstated and that his reasons for returning to this country, to escape poverty and help his family, mitigate his illegal reentry. The district court imposed a 46-month sentence, at the bottom of the guidelines. The Seventh Circuit vacated and remanded, based on the district court's failure to explain its choice of sentence.

The petitioner re-entered the United States illegally after being removed in 1997 following convictions related to a hit-and-run. He was caught in 2010. The Department of Homeland Security rejected his petition to stay removal and rescind the 1997 order based on post-1997 decisions under which the underlying convictions would not be characterized as felonies. The Seventh Circuit affirmed, holding that the petition was untimely based on the date on which the petitioner had knowledge of the 2010 removal order. The court declined to characterize the proceedings as denial of a motion to reopen the 1997 order, which would have also been untimely.

The defendant entered the U.S. from Canada under a six-month visitor visa and stayed more than half of his life. He was convicted of possession of drug paraphernalia, criminal damage to property, theft under $2,500, and lewd and lascivious conduct under Wisconsin law. The immigration judge held that he was subject to removal. The Board of Immigration Appeals and the Seventh Circuit agreed. Removal for staying longer than permitted by visa can be cancelled under 8 U.S.C. 1229b if an alien has been present for 10 continuous years, has been a person of good moral character, has not been convicted of specific offenses including crimes of moral turpitude, and removal would work a hardship for a parent, child, or spouse who is a citizen or legal permanent resident. A waiver available for convictions relating to petty offenses does not apply to a conviction for possession of drug paraphernalia; offenses relating to controlled substances are crimes of moral turpitude.

The defendant appealed a sentence of 40 months after pleading guilty to illegal reentry of a removed alien following conviction for an aggravated felony. Sentencing guidelines provide a range of 46 to 57 months. The Seventh Circuit affirmed. The court properly considered a prior arrest that did not result in conviction; it had detailed, reliable information about the conduct underlying that arrest. Consideration of other arrests, for which the court did not have detailed information, was harmless error; the judge placed more weight on a prior conviction for drug trafficking and the defendant did not object to consideration of the arrests at the time of sentencing. Although the Seventh Circuit held, after the sentencing, that a court may consider the disparity in guidelines ranges for illegal re-entry, depending on whether the district has a "fast track" program, the district judge properly declined to lower the sentence based on the district's lack of a program. The defendant had not made concessions that would be required by such a program.

Ni was smuggled into the United States in 1990 and sought asylum in 1994. His petition was denied and the case was closed. Some years later, facing deportation, Ni attempted to establish fear of religious persecution. The Board of Immigration Appeals rejected the claim. The Seventh Circuit, affirmed, noting the difference between harassment and persecution. Testimony about treatment of Ni and his family in the 1970s and early 1980s and evidence about current conditions in China did not support a legitimate claim of fear of future persecution.