Justia Immigration Law Opinion Summaries

Chen faced deportation to Fujian Province and claimed to face a significant risk of persecution there because, since coming to the U.S. in 2002, she has given birth to two children in violation of China’s one‐child policy. The Board of Immigration Appeals denied her petition for asylum. The Seventh Circuit upheld the denial, noting that the Chinese government recently announced that it will permit an urban husband and wife, at least one of whom was an only child, to have two children. Chen’s husband is not an only child; Chen testified that her mother‐in‐law was punished for violating the policy. There is no information on whether Chen is an only child or whether the new policy will be applied retroactively. Fujian Province seems to enforce the one‐child policy more strictly. Nonetheless, the BIA noted that forced sterilization has become very rare and noted that Chen could avoid penalty by not registering the children with the government as permanent residents of China. The children would not be entitled to free public education, subsidized health care, and other benefits, but Chen’s failure to present evidence concerning her financial situation “is a fatal weakness in her case.” View "Chen v. Holder" on Justia Law

Convicted in 1990 for aggravated criminal sexual abuse, Shah was ordered removed to India in 2005. He did not seek judicial review, but unsuccessfully moved for reconsideration, arguing that he should have been granted a waiver of removal under 8 U.S.C. 1182(c) as it existed before its 1996 repeal. Shah has lived in India since 2007. In 2012 he moved to reopen the proceedings and, after the BIA denied that motion, brought a motion to reconsider. The BIA recognized that it had authority to reopen but remarked that Shah’s situation did not merit a favorable exercise of discretion, because of the nature of his crime and also because Shah is no longer in the U.S. The Seventh Circuit dismissed petitions for review, noting the 90-day deadline for motions to reopen. An IJ and the BIA concluded in 2005 that, as a matter of administrative discretion, Shah would not receive section 212(c) relief even if he were in the category of those still eligible for consideration because of the nature of his crime against a child. View "Shah v. Holder" on Justia Law

Deported following a 1996 conviction for attempted first degree murder and armed violence, Lara, a citizen of Mexico, returned to the U.S. and was arrested for armed robbery and attempted armed robbery. After a second illegal return, he was convicted of illegal reentry in violation of 8 U.S.C. 1326(a) and (b)(2) and sentenced to 78 months’ imprisonment. On appeal, Lara argued that the district judge should have disqualified himself from hearing Lara’s motion to dismiss the indictment or erred in failing to dismiss the indictment because Lara was erroneously denied an opportunity to seek discretionary relief from deportation under the Immigration and Nationality Act section 212(c) in his first deportation proceeding in 1997–1998. The Seventh Circuit rejected the claims. The judge was not disqualified from ruling on Lara’s motion based on the judge’s service as INS District Counsel when Lara was first deported. The court did not reach the question of whether precedents interpreting 8 U.S.C. 1326(d) foreclose Lara’s collateral attack on his underlying deportation order because counsel conceded the issue. View "United States v. Lara-Unzueta" on Justia Law

Petitioners applied for asylum in the U.S., claiming that they had been persecuted as members of the “social group” of timberlands owners and would face risks if returned to Honduras. Organized squatters, “La Via Campesina,” invade agricultural lands and take over production; if they raise the national flag and assert that owners are not using the land, police and judges are unwilling to evict them. Timber lands remain out of production for years while trees mature, making them targets for campesinos, who cut and sell the timber. Petitioners assert that campesinos occupied their land in 2008 and that they fear for their lives should they return to assert ownership rights. An immigration judge denied asylum, finding (under 8 U.S.C. 1101(a)(42)(A)) that the past and feared future harm do not amount to persecution; that the squatters’ acts did not occur because of petitioners’ membership in any particular group but were for profit, with indifference to who was injured; and that the squatters’ acts could not be imputed to the government. The BIA concluded that the campesinos are thieves whose own interests, rather than antipathy toward petitioners, led to the invasion and that Honduras is willing and able to control the campesinos; after petitioners obtained a court order, officers did remove the squatters. The Seventh Circuit denied a petition for review. View "Urbina-Dore v. Holder" on Justia Law

Cornejo’s father came to the U.S. in 1983 and, in 1994, brought his family to this country without admission. At age 18, Cornejo began having trouble with the law, including charges of driving without a license, possession of a controlled substance and paraphernalia, first degree criminal trespass, theft and criminal mischief, and violation of probation. Between 2002 and 2005, Cornejo avoided legal problems, but in 2005 he was charged with domestic battery and criminal damage to property. In 2006 he pled guilty to aggravated unlawful use of a weapon after he brandished a firearm during an argument with a neighbor. During immigration proceedings, Cornejo had four domestic battery charges and was twice arrested for DUI. After his conviction for the weapons violation, DHS initiated removal based on his illegal presence and his conviction for a crime of moral turpitude. During proceedings, Cornejo married a citizen and a petition for an alien relative was filed on his behalf. The IJ determined that Cornejo had not shown that his removal would result in extreme hardship to a qualified relative and that, even if he had made a showing, he did not merit a favorable exercise of discretion. The BIA affirmed. Cornejo moved to reopen based on new evidence of hardship to his U.S.-citizen daughter. The BIA denied the motion. The Seventh Circuit denied review.View "Reyes-Cornejo v. Holder" on Justia Law

Soto entered the U.S. in 1978 as an infant and became a lawful permanent resident in 1991 at age 13. She was convicted of theft in 2002, of passing a worthless check in 2003, and of possessing methamphetamine in 2005, a felony under Kansas law. In 2005, immigration authorities initiated removal on grounds of commission of an aggravated felony, of two crimes involving moral turpitude, and of a controlled substance offense, 8 U.S.C. 1227(a)(2)(A)(ii), (a)(2)(A)(iii), and (a)(2)(B)(i). At the time, the circuits were split on whether a drug possession conviction that was a state law felony but that would be a federal misdemeanor should be considered an aggravated felony for purposes of immigration. In 2006 the Seventh Circuit held that such convictions were not aggravated felonies for immigration purposes. Soto claims that an immigration officer and a legal aid organization stated that she had no chance of avoiding removal, so she signed a stipulation with an admission of the factual allegations, waiver of any right to seek relief from removal, and an acknowledgment that she signed voluntarily, knowingly, and intelligently. Three weeks after removal, Soto returned to the U.S. illegally to live with her four U.S.‐born children and their U.S.‐citizen father, whom she married in 2009. In 2010 authorities discovered Soto and reinstated the 2005 order of removal using an expedited process. The Board of Immigration Appeals dismissed her appeal, filed from Mexico. The Tenth Circuit ruled that it lacked jurisdiction to review the 2005 order. Soto moved to reopen the 2005 removal order, arguing that the 90‐day deadline did not apply or was equitably tolled. The IJ and BIA rejected her arguments. The Seventh Circuit held that that her illegal reentry after her 2005 removal permanently bars reopening that earlier removal order.View "Cordova-Soto v. Holder" on Justia Law

Salim, an Indonesian citizen of Chinese ethnicity and Christian faith, claims that while living in Indonesia as a teenager, he endured ongoing harassment from Muslim students at nearby public schools because of his Chinese ethnicity. He was robbed for his lunch money several times, and once a student with a knife threatened him and punctured his neck. Salim claims it was difficult for Chinese individuals and Christians to travel safely around Jakarta during intense rioting in 1998. Several Chinese businesses were burned during that time, though his family’s business was not harmed. Salim left Indonesia in 2000 and filed a timely application for asylum, withholding of removal, and protection under the Convention Against Torture. An IJ denied requested relief on grounds that Salim failed to show past or future persecution. The Board of Immigration Appeals dismissed appeal of denial of a motion to reopen because Salim offered no new, previously unavailable evidence and relied on case law from outside the circuit. The Seventh Circuit denied a petition for review, finding that Salim’s motion to reopen did not point to any evidence that was previously undiscoverable. View "Salim v. Holder" on Justia Law

Camarena, a Mexican citizen, was admitted to the U.S. for permanent residence in 1977, at age 10. He did not become a citizen. After a felony conviction for indecent solicitation of a minor, his permanent-residence status was revoked, and he was ordered removed. Camarena is homosexual and HIV positive and claims that gays are persecuted in Mexico and that gays infected by HIV face extra risk. Although he is not eligible for asylum, he applied for withholding of removal under 8 U.S.C. 1231(b)(3), and relief under the Convention Against Torture. The immigration judge granted his application, finding, on the basis of statistics and expert testimony that Camarena probably would be killed or injured in Mexico as a result of his sexuality and disease. The BIA remanded; the IJ adhered to his position. The BIA then reversed and, after a remand, adhered to its position. The BIA accepted the IJ’s findings of historical fact but disagreed about the risk implied by those facts. The Seventh Circuit again remanded, for the BIA to consider, not whether aggregate data imply that Camarena is likely to be killed, but whether the IJ clearly erred in finding that he is more likely than not to be persecuted. View "Rosiles-Camarena v. Holder" on Justia Law

Boika, a Belarusian citizen, entered the U.S. legally in 2006, but overstayed. At her removal proceedings, she applied for asylum under 8 U.S.C. 1158, withholding of removal under 8 U.S.C. 1231(b)(3), and relief pursuant to the Convention Against Torture. Her husband, Zhits, made parallel claims, derivative from Boika’s claims based on their marital status, 8 U.S.C. 1158(b)(3)(A). Boika claimed that she could establish a well‐founded fear of future persecution upon return to Belarus, based on past persecution for her political involvement in Belarus, between2004 and 2006. An immigration judge denied her asylum application based on an adverse credibility finding. The Board of Immigration Appeals affirmed. The Seventh Circuit denied review. Boika moved to reopen based on materially changed country conditions, 8 U.S.C. 1229a(c)(7)(C)(ii), claiming that after Belarusian President Lukashenko’s election in 2010,the Belarusian government’s severe crackdown on political opposition resulted in widespread human rights abuses. She submitted new corroborating evidence about her activity in the Belarusian opposition movement while she has been in the U.S. The Board denied Boika’s motion. The Seventh Circuit granted their petition and remanded. View "Boika v. Holder" on Justia Law

Pouhova is a Bulgarian citizen who entered the U.S. on a student visa in 1999. She overstayed her visa, married a U.S. citizen and applied for an adjustment of status. She was charged as removeable for assisting an alien trying to enter the U.S. illegally, 8 U.S.C. 1227(a)(1)(E)(i). The government produced a written statement from the woman who attempted to use Pouhova’s Bulgarian passport to enter the U.S. in 2000. The document was taken in English, without an interpreter. The government also produced a Department of Homeland Security “record of deportable alien,” a report on that interview, prepared by the same inspector, but more than seven years later. Pouhova was ordered removed and appealed, arguing that she was deprived of her procedural rights because the immigration judge based his decision on the two hearsay documents. The Seventh Circuit vacated and remanded. Although the Federal Rules of Evidence do not apply to removal hearings, the documents are not reliable and should not have been used without giving Pouhova an opportunity to cross-examine the declarant or author. View "Pouhova v. Holder" on Justia Law