Articles Posted in U.S. Court of Appeals for the Seventh Circuit

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An illegal immigrant, Sanchez conceded his removability at a hearing before an immigration judge, but applied for cancellation of removal under 8 U.S.C. 1229b(b), which required that he show that he had been physically present in the U.S. for at least 10 years, that during that period he was a person of good moral character, and that his removal would result in “exceptional and extremely unusual hardship” to his U.S.‐citizen children, ages eight years, six years, and 15 months. His wife also lacks legal‐resident status and Sanchez was the primary breadwinner for his family, having worked at the same pizza restaurant for 18 years. He admitted having been convicted four times in the past 16 years of driving under the influence, and that he had twice violated conditions of his bond. The immigration judge denied relief. The BIA dismissed an appeal. The Seventh Circuit stayed his removal pending review of the BIA’s refusal to reopen in light of new evidence in support of Sanchez’ ineffective‐assistance‐of‐counsel claim, including evidence that his children do not speak Spanish and that one child has a disability. View "Sanchez v. Sessions" on Justia Law

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The Seventh Circuit affirmed denial of asylum, withholding of removal, and relief under the Convention Against Torture for Silais, a Haitian citizen and opposition political party member, who had arrived in the U.S. in 2011, without a valid entry document (8 U.S.C. 1182(a)(7)(A)(i)). Silais testified that he had been attacked and threatened because of his political activity. The court upheld the Immigration Judge’s findings that Silais’s testimony was vague and inconsistent, that he had not presented sufficient corroboration, and that he could not show that the Haitian government was unwilling or unable to protect him if he were to return. Silais had never attempted to file a police report or otherwise prompt law enforcement officers to intervene. View "Silais v. Sessions" on Justia Law

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Barragan‐Ojeda, an 18-year-old citizen of Mexico, entered the U.S. without authorization in 2013. He was apprehended at the border and requested asylum. Before an immigration judge, he claimed that a Mexican criminal gang had persecuted him. He mentioned that he had been the victim of employment discrimination because he was effeminate, but denied that he was gay. The IJ denied asylum. On appeal to the Board of Immigration Appeals, Barragan‐Ojeda filed an affidavit asserting that he was gay and that he had been persecuted because of his sexual orientation. The Board affirmed the denial of asylum on the ground asserted in the original application. With respect to the new ground, the Board declined to remand. The Seventh Circuit denied a petition for review. Barragan‐Ojeda’s due process challenge was not presented to the Board and, in any event, the record did not indicate that the IJ’s conduct of the hearing evinced the kind of impatience and bias that might be characterized as a due process violation. The Board correctly evaluated the new evidence submitted by Barragan‐Ojeda under the standards applicable to a reopening and correctly denied relief because he submitted no evidence to establish that his new claim was previously unavailable. View "Barragan-Ojeda v. Sessions" on Justia Law

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In 2011 the southern half of Sudan (predominantly Muslim) broke away to form the Republic of South Sudan, the population of which practices Christianity or African traditional religion. Arej, born in South Sudan, was sent as a child to live in the north, where he concealed his Christian faith and his southern ethnicity. He eventually fled to Egypt. He was admitted to the U.S. as a refugee in 2005. He remains a citizen of Sudan. In the U.S., Arej committed assaults; one resulted in a death. After he completed his two-year prison sentence, an IJ ordered him removed to Sudan. Arej sought asylum on the ground that South Sudan was “increasingly volatile and dangerous.” He had missed the 90‐day deadline for filing a motion to reopen and sought an exception on the basis of changed circumstances since the issuance of the removal order. Removed to the north, Arej would be in danger as a southerner, but civil war had broken out in South Sudan; it was reported that 20 percent of the population had been displaced and an “untold number” killed. The IJ denied Arej’s motion. The BIA dismissed an appeal. The Seventh Circuit vacated, finding that the BIA ignored the growing violence in the south and U.N. concerns about genocide, which constituted evidence that conditions have materially changed. View "Arej v. Sessions" on Justia Law

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The Yusevs, who overstayed their non-immigrant visas and have lived in the U.S. since 2005, asserted that they had been members of the United Macedonian Organization Ilinden, a banned party devoted to the rights of ethnic Macedonians. They testified about two occasions on which the police assaulted them and that the police came looking for them at their home in 2006 and were still looking in 2007. They submitted reports detailing Bulgaria’s poor treatment of Macedonians. An immigration judge denied relief, finding that they had missed the one-year deadline for filing an asylum application, 8 U.S.C. 1158(a)(2)(B), and that their tardiness was not excused by changed circumstances in Bulgaria or extraordinary circumstances. The judge denied their request for withholding and Convention Against Torture protection on the merits, finding that their experiences did not meet the test for past persecution, nor did they support a finding of likely persecution in the future. The BIA affirmed. Represented by new counsel, they moved to reopen the proceedings based on their first lawyer’s ineffectiveness. The Board found the motion untimely and rejected the argument that counsel’s ineffectiveness excused the delay. The Seventh Circuit rejected petitions for review, noting the Yusevs’ lack of diligence. View "Yusev v. Sessions" on Justia Law

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Delgado, a citizen of Mexico, entered the U.S. without inspection three times, most recently in May 1999. In December 2009, he was convicted in Illinois state court of felony possession of cocaine with intent to deliver and sentenced to six months’ imprisonment. In 2015, DHS initiated removal proceedings. More than seven years and three petitios later, the Board of Immigration Appeals affirmed an IJ’s denial of withholding of emoval, 8 U.S.C. 1231(b)(3), and relief under the Convention Against Torture, 8 C.F.R. 1208.16(c). Delgado challenged aspects of the expedited removal process under 8 U.S.C. 1228(b) and a corresponding regulation and claimed that the Board committed various legal errors. The Seventh Circuit dismissed Delgado’s petition for review in part for lack of jurisdiction. Asylum is a form of discretionary relief in which “there is no liberty interest at stake.” The court denied the remainder of his arguments. The Board engaged in impermissible fact-finding, but the error was harmless. View "Delgado-Arteaga v. Sessions" on Justia Law

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Hazama, a U.S. citizen, is married to Ghneim, a citizen of the Palestinian Authority, currently residing there. Hoping to obtain a permanent resident visa for Ghneim, Hazama filed a Petition for Alien Relative with USCIS, which was approved in 2011. Ghneim still had to wait until a visa number became available and had to appear for an interview with a consular officer. Ghneim appeared for his interview at the Jerusalem Consulate in 2013. The officer denied the application, citing: the commission of a crime of moral turpitude, 8 U.S.C. 1182(a)(2)(A)(i)(I); previous removal from the U.S., section 1182(a)(9)(A)(ii); and unlawful presence in the U.S., section 1182(a)(9)(B)(i)(II). Ghneim's petition for a waiver of the “previously removed” and “unlawful presence” grounds was denied. In 2015, an officer again denied Ghneim’s application, for having personally engaged in terrorist activities, 8 U.S.C. 1182(a)(3)(B)(i). The district court found that the consular official’s reliance on the terrorism provision satisfied all relevant legal standards. The Seventh Circuit affirmed, rejecting their mandamus petition. The Supreme Court has consistently recognized that unadmitted, nonresident aliens have no free-standing constitutional right to enter the U.S.. Congress delegated broad power to the Executive Branch to decide who will have the privilege of entering; courts generally have no authority to second-guess those decisions. View "Hazama v. Tillerson" on Justia Law

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Ulloa, a citizen of Mexico, married Morfin, a U.S. citizen. Morfin sought approval for his permanent residence, but Ulloa was present in the U.S. without authority and was required to return to Mexico to obtain a visa for lawful entry. He applied at the consulate in Juarez. After twice interviewing Ulloa, the State Department denied him a visa, stating that it had reason to believe that he is (or was) involved in drug trafficking. In 2001 Ulloa had been indicted for possessing more than 500 grams of cocaine, with intent to distribute. The U.S. Attorney dismissed the indictment and Ulloa denies the charge, but he lacks a favorable adjudication. The couple sued under the Administrative Procedure Act, 5 U.S.C. 702, alleging that the denial was arbitrary and not supported by substantial evidence. The district court found that it lacked jurisdiction because decisions on visa applications are committed to agency discretion and are outside the scope of judicial review under the APA. The Seventh Circuit affirmed. While the APA does not curtail jurisdiction granted by other laws, the consular officer gave a legitimate reason for denying Ulloa’s application. Precedent prevents the judiciary from reweighing the facts and equities. Whether Congress acted wisely in making “reason to believe” some fact sufficient to support the denial of a visa application is not a question open to review by the judiciary. View "Morfin v. Tillerson" on Justia Law

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Fitzpatrick, a citizen of Peru, had lived in the U.S. for three years when she applied for an Illinois driver’s license; she displayed her green card and her Peruvian passport, but checked a box claiming to be a U.S. citizen. As required by the motor-voter law, 52 U.S.C. 20503–06, the form contained a checkbox for registration as a voter. Fitzpatrick maintains that the clerk asked whether she wanted to register. She inquired “Am I supposed to?”; he replied: “It’s up to you.” She checked that box, was registered, and in 2006 twice voted in federal elections, violating 18 U.S.C. 611; 8 U.S.C. 1227(a)(6), provides for the removal of aliens who vote in violation of the law. On her application for citizenship, Fitzpatrick, who is married to a U.S. citizen, and has three U.S.-citizen (naturalized) children, honestly described her voting history. The BIA affirmed an order of removal. The Seventh Circuit denied relief, rejecting an “entrapment by estoppel” defense. Fitzpatrick did not make accurate disclosures when applying. She is literate in English and has no excuse for that misrepresentation. No one told her that aliens are entitled to vote or to register to vote. Fitzpatrick had time after receiving her voter-registration card to determine whether she was entitled to vote. View "Fitzpatrick v. Sessions" on Justia Law

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Garcia‐Hernandez entered the U.S. from Mexico without inspection in 2000. In 2010, Talavera, the mother of his children, obtained an order of protection against him. Weeks later, Garcia‐Hernandez was charged with violating that order and pled guilty. He was sentenced to 12 months of supervision. He was charged as removeable, 8 U.S.C. 1182(a)(6)(A)(i). Garcia‐Hernandez sought cancellation of removal under 8 U.S.C.1229b(b), which requires that the alien has been physically present in the U.S. for 10 years, has been a person of good moral character during those years, and that removal would result in “exceptional and extremely unusual hardship” to the alien’s spouse, parent, or child who is a U.S. citizen or lawful permanent resident. The alien may not have been convicted of an offense under 8 U.S.C. 1182(a)(2), 1227(a)(2), or 1227(a)(3). The IJ found Garcia-Hernandez ineligible for relief because section 1227(a)(2)(E)(ii) disqualifies an alien who a court “determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury.” The charging document to which he pled guilty said that Garcia-Hernandez had harassed Talavera and violated the injunction to stay away from her. The BIA and Seventh Circuit upheld the decision, rejecting an argument that the section did not apply because the charging document did not say that he had actually made credible threats of violence or caused repeated harassment or bodily injury. View "Garcia-Hernandez v. Boente" on Justia Law