Justia Immigration Law Opinion Summaries

Articles Posted in U.S. 7th Circuit Court of Appeals
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While R. was an investigator for Mexico’s Federal Agency of Investigation, he arrested hundreds of suspects and repeatedly testified against drug traffickers. Drug organizations tried to kill him. The Agency repeatedly transferred him, but threats soon resumed. He was wounded twice while on duty and eluded capture several times. Assassins shot at him, missed, and wounded his father. He quit the Agency, opened an office-supply business, and tried to conceal his former job. Strangers continued looking for him. He sought asylum in the U.S., contending that he had been persecuted as a member of the social group of honest police officers. The IJ denied the application. The Board of Immigration Appeals agreed, distinguishing between honest police and effective honest police, reasoning that only if criminal organizations target all honest officers would R. be entitled to asylum, 8 U.S.C. 1101(a)(42)(A). The Seventh Circuit vacated. The law calls for assessments of causation and risk. That R. is at more risk than that most “honest police” is a poor reason to disqualify him. The Board did not consider whether Mexico’s more-than-400,000 officers are willing and able to protect former colleagues. Nothing R. can do will erase his employment history. The court questioned why DHS wants to remove R. He appears to have led an exemplary life in the U.S. since entering (lawfully) and applying for asylum. View "R. R. D. v. Holder" on Justia Law

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Tian, a 48‐year old Chinese citizen, was admitted to the U.S.in 2001, on a non‐immigrant visa, to participate in an international exchange program. He overstayed and, in 2007, was questioned during an investigation of human trafficking. There were in no charges, but Tian was placed in removal hearings. While the matter was pending, Tian pled guilty to drawing and passing a check with intent to defraud and was ordered to pay $100,000 in restitution; his sentence was suspended. Tian sought asylum, withholding of removal, and Convention Against Torture protection, asserting that, in 1989, he participated in demonstrations and was detained by the police for 10 days, repeatedly assaulted, and undressed and tied to a tree for an entire day. After his release Tian had report to the Public Security Bureau regularly. Tian asserted that he was demoted from being a hotel manager to being a kitchen helper, and that his wife divorced him, because of persecution for his participation in the prodemocracy movement. He claimed that he failed to timely apply for asylum because of “language barriers” and “ignorance of U.S. laws.” Tian did not have documentation of participation in the demonstration, or his detention, or of subsequent medical treatment. The IJ and BIA rejected his claims. The Seventh Circuit dismissed, for lack of jurisdiction, the conclusion that Tian’s asylum application was time‐barred. Because Tian did not exhaust administrative remedies with regard to his CAT claim, the court denied that claim. Tian failed to establish eligibility for withholding of removal. View "Tian v. Holder" on Justia Law

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L has lived in the U.S. since 1987 and was a victim of armed kidnapping and sexual assault, in 2006, because of her brother-in-law’s drug dealings. Drugs were subsequently found in her garage and, although she accepted a plea agreement to get probation and remain with her four children (U.S. citizens), she maintains that she was not involved in the drug trade. L applied for a U Visa under the Victims of Trafficking and Violence Protection Act, 114 Stat. 1464 to forestall her impending removal. The decision whether to grant a U Visa to a crime victim who is otherwise ineligible for admission is discretionary and is exercised through USCIS, 8 U.S.C. 1101(a)(15)(U). USCIS refused to waive her inadmissibility stemming from her uninspected entry and drug conviction. Facing certain removal, she asked the Immigration Judge to determine independently whether to waive her inadmissibility. The IJ declined and found that USCIS alone had jurisdiction to provide a waiver. The Board of Immigration Appeals affirmed. The Seventh Circuit remanded to the IJ with instructions to consider the waiver request under 8 U.S.C. 1182, noting that ambiguities in the “labyrinthine statutory structure” should be resolved in favor of the alien. View "L. D. G. v. Holder." on Justia Law

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Aljabri, born in Jordan, married a U.S. citizen in 1997 and became a lawful permanent resident in 2000. In 2003, he sought naturalization under 8 U.S.C. 1430. USCIS conducted an interview and then delayed for nine years. In 2007 Aljabri was convicted of wire fraud, money laundering, and structuring transactions not to trigger financial institution reporting requirements. He was sentenced to 84 months in prison. In 2008 DHS alleged that Aljabri was removable under 8 U.S.C. 1227(a)(2)(A)(iii), having been convicted of a crime causing victims a loss of more than $10,000. He was ordered removed in absentia. He filed suit, asking the district court either to naturalize him or declare him a U.S. citizen based on the still-pending 2003 application. The district court held that it lacked subject‐matter jurisdiction and dismissed in January, 2012. On May 3, 2012, USCIS denied the naturalization petition, stating that the final order of removal meant that he was no longer a lawful permanent resident and only permanent residents can be naturalized and that Aljabri could not demonstrate the good moral character necessary for naturalization. The Seventh Circuit reversed. The district court overlooked 8 U.S.C. 1447(b), which gives the court exclusive jurisdiction over the naturalization application until the matter is remanded to the agency. View "Aljabri v. Holder" on Justia Law

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Chen, a citizen of China, entered the U.S. in 2004 as a nonimmigrant. He overstayed and sought asylum, withholding of removal, and protection under the Convention Against Torture. He admitted removability, 8 U.S.C. 1227(a)(1)(B). Chen testified that he left China because he was persecuted because he participated in the demonstration against the government using violence to force people to demolish housing and to move. He said that he was detained, beaten, harassed, threatened, and arrested by the police. Chen was released after three days, but was required to report to the police station, first weekly and then on a monthly basis. Chen has not participated in any other antigovernment demonstration and was not a member of any political organization. The IJ rejected his claims, finding that Chen did not apply for asylum until more than three years after his arrival, so that his asylum application was untimely. His inability to speak English, to understand the law, and not having money to hire an attorney did not amount to extraordinary circumstances to excuse untimely filing. Regarding withholding of removal, the IJ found that Chen’s situation was a personal dispute rather than an expression of his political opinion. The Seventh Circuit dismissed a petition for review. View "Chen v. Holder" on Justia Law

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After guerillas from the Revolutionary Armed Forces of Colombia (FARC) kidnapped her father and killed her uncle, petitioner fled Colombia. After entering the U.S. legally on a tourist visa, she and her family overstayed their visa and applied for asylum within one year, claiming that they were victims of persecution by the FARC and were in danger of future persecution should they return to Colombia. Petitioner’s husband and daughter filed derivative claims. The immigration judge concluded that petitioner failed to meet her burden of proof that she has suffered past persecution or would suffer from future persecution on the basis of her membership in a social group of land owners or because of her political opinion. The Board of Immigration Appeals affirmed. The Seventh Circuit granted a petition for review and remanded, stating that the evidence compels a contrary conclusion. The question of who is persecuted by FARC threats and whether the government is unable or unwilling to contain them is unresolved. View "N.L.A. v. Holder" on Justia Law

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Chavarria, born in Mexico, became a legal permanent U.S. resident in 1982. In 2009, Chavarria pleaded guilty to distributing cocaine. One year later, the Supreme Court decided Padilla v. Kentucky, imposing a duty on defense attorneys to inform noncitizen clients of deportation risks stemming from plea agreements, and held that legal advice, or the lack thereof, involving the prospect of deportation resulting from guilty pleas can support a Sixth Amendment claim of ineffective assistance of counsel. Chavarria filed a pro se motion under 28 U.S.C. 2255, claiming that his trial counsel stated that “the attorney had checked with the Bureau of Immigration and Customs Enforcement … and they said they were not interested” in deporting him. Chavarria was deported before counsel was appointed. The district court denied a motion to dismiss, holding that Padilla could be applied retroactively. Shortly thereafter, the Seventh Circuit decided, in Chaidez v. U.S., that Padilla was a new rule and not retroactive. The district court vacated its ruling and dismissed. While appeal was pending, the Supreme Court affirmed Chaidez, foreclosing Chavarria’s argument that Padilla was retroactive. The Seventh Circuit affirmed, rejecting an argument that Chaidez distinguished between providing no advice (actionable under Padilla) and providing bad advice (actionable under pre‐Padilla law). View "Chavarria v. United States" on Justia Law

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Flores, an alien who returned to the U.S. without permission following removal, was charged with illegal reentry and other crimes arising from his armed drug dealing. Flores, who maintained that U.S. law did not apply to him and that the court had no jurisdiction to try him, refused to consider a guilty plea. He was convicted on all counts and was sentenced to concurrent 96-month sentences on all counts but one. His conviction, for possessing firearms in furtherance of a drug trafficking felony, led to a consecutive term of 360 months’ imprisonment, which was compulsory because of Flores’s earlier conviction of the same crime, 18 U.S.C. 924(c)(1)(B)(ii). The Seventh Circuit affirmed, rejecting an argument that trial counsel furnished ineffective assistance by telling the jury that Flores indeed had distributed cocaine after reentering the U.S. without permission, while arguing that the prosecution did not establish guilt beyond a reasonable doubt on the weapons-related charges. View "United States v. Flores" on Justia Law

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Darif, a citizen of Morocco, married Kirklin, a U.S. citizen and by virtue of the marriage was admitted into the U.S. as a conditional permanent resident in 2001. It was later determined that he had paid $3000 for the marriage and Darif was convicted of marriage fraud and related charges, and DHS initiated removal proceeding. An immigration judge found Darif removable and rejected all arguments for relief. The BIA and Seventh Circuit denied relief. The court stated that it lacked jurisdiction to review his claims of entitlement to an extreme-hardship waiver pursuant to 8 U.S.C. 1186a(c)(4) and that the IJ was biased and otherwise denied him a full and fair hearing. The determination of extreme hardship was a discretionary decision and Darif’s due-process argument could not succeed because an alien has no protected liberty interest in discretionary immigration relief. Even if the due-process claim was considered as a challenge to the legal sufficiency of Darif’s hearing under the governing, he was not prejudiced because the BIA gave his hardship claim plenary and independent consideration. View "Darif v. Holder" on Justia Law

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Kim, his wife Ko, and their children are citizens of South Korea who were admitted to the U.S. in 2003, as nonimmigrant visitors for pleasure. Before an extension expired, Ko, obtained an F-1 visa, changing her status to that of a nonimmigrant student. As beneficiary of his wife’s application, Kim’s status was changed to that of spouse of a nonimmigrant student. In 2006, Ko’s F-1 status and, consequently, Kim’s F-2 status, were terminated. U.S. Citizenship and Immigration Services stated that Ko was ineligible for reinstatement because she had stopped attending classes without informing the school of an illness that she later claimed. While Ko’s motion to reopen or reconsider was pending, Kim became the beneficiary of an approved immigrant visa as an alien worker and moved to adjust his status to that of lawful permanent resident. USCIS denied the application, finding that he was ineligible because he had failed to maintain continuous lawful status since entering the U.S. In 2009, DHS charged Kim removable under 8 U.S.C. 1227(a)(1)(B). Kim argued that his failure to maintain legal status was due to circumstances beyond his control. The IJ found Kim removable. The BIA dismissed an appeal. The Seventh Circuit denied a petition for appeal. View "Kim v. Holder" on Justia Law