Justia Immigration Law Opinion Summaries

Hernandez and his mother entered the U.S. unlawfully when he was a small child. They adjusted their status to that of lawful permanent residents in 1989, when Hernandez was seven. His mother became a naturalized citizen when he was 16, but her naturalization did not confer citizenship on him automatically. Both of his parents would have had to naturalize before he turned 18, or they would have had to legally separate. Neither happened. Over the next 15 years, Hernandez was convicted for three controlled-substance violations, two retail thefts, and as a felon-in-possession of a firearm. In 2015 the government instituted removal proceedings based on his criminal history, under 8 U.S.C. 1227(a)(2)(B)(i); (A)(iii); (C); and (A)(ii), At his hearing, the IJ informed Hernandez of his right to representation and asked whether he wanted a continuance. Hernandez did not respond, but explained that he thought he was a citizen. The IJ determined that Hernandez never obtained citizenship and asked Hernandez whether he feared being harmed if he were returned to Mexico, offering to continue the case to allow him to apply for asylum. Hernandez again declined. After the IJ entered an order of removal, Hernandez obtained counsel. The BIA affirmed. The Seventh Circuit denied his petition for review, rejecting an argument that Hernandez was denied representation by counsel. View "Estrada-Hernandez v. Lynch" on Justia Law

Zyapkov, a Bulgarian citizen, entered the U.S. in 2002 with a visitor’s visa. His daughter had entered two years earlier and eventually obtained citizenship through the “diversity lottery,” 8 U.S.C. 1153(c). Three months after Zyapkov’s arrival, he married Gregory, a U.S. citizen. Gregory and, later, Zyapkov’s daughter filed Form I‐130 “immediate relative” petitions on his behalf. Gregory’s petition was pending in 2008 when DHS initiated removal proceedings accusing Zyapkov of overstaying his visa and working as a truck driver without authorization. USCIS denied Gregory’s petition based on a conclusion that the marriage to was a sham. Zyapkov unsuccessfully sought a continuance. The finding of marriage fraud would make Zyapkov inadmissible, 8 U.S.C. 1182(a)(6)(C)(i), and ineligible for permanent residency regardless of his daughter’s pending petition. The Board dismissed his appeal of the removal order. The following month, with his daughter’s approved I‐130 petition approved, Zyapkov successfully asked the Board to reopen. He sought to adjust his status to permanent resident. On remand the IJ conducted hearings, denied Zyapkov’s application to adjust his status, and denied relief from removal, based on inconsistencies in testimony about the marriage. The Board and the Seventh Circuit affirmed. Since Zyapkov is inadmissible, he is ineligible for adjustment of status; even assuming eligibility, there was no legal or constitutional error in the IJ’s exercise of discretion. View "Zyapkov v. Lynch" on Justia Law

Mohit and Ankush Seghal filed an I-130 petition seeking lawful permanent resident status for Mohit, who is a citizen of India, as the husband of Ankush, who is a U.S. citizen. The petition was denied Mohit had tried years earlier to gain lawful residence in the U.S. by a fraudulent marriage to another woman, making him ineligible for relief even though his marriage to Ankush is legitimate, 8 U.S.C. 1154(c). The decision to grant or deny an I-130 petition is not a matter of agency discretion, and Mohit is not subject to a removal order, so he properly challenged the denial in the district court under the Administrative Procedure Act. The district court found that substantial evidence supported the agency’s finding of marriage fraud and thus granted summary judgment against the Seghals. The Seventh Circuit affirmed. Although the agency’s handling of the case involved procedural errors, the decision was legally sound. Substantial evidence, including Mohit’s own written admission, supported the agency’s finding that Mohit’s earlier marriage was fraudulent. View "Sehgal v. Lynch" on Justia Law

Musa, a citizen of Botswana, entered the U.S. in 2008 on a visitor’s visa. She met a U.S. citizen and they married. Musa’s husband filed an I‐130 “alien relative” petition on her behalf, and Musa applied at the same time to adjust her status to permanent resident, 8 U.S.C. 1151(b)(2)(A)(i), 1255(a); The Department of Homeland Security denied both: Musa’s husband was discovered not to have ended a previous marriage. In 2009 Musa was placed in removal proceedings because her visa had expired. In 2010, Musa divorced and applied for asylum, withholding of removal, and protection under the Convention Against Torture because she feared that if she returned to Botswana her family would force her to undergo female genital mutilation. The agency denied relief. The Seventh Circuit granted the petition requesting withholding of removal. Substantial evidence did not support the agency’s conclusion that Musa likely will not be subjected to FGM. The court held that it lacked jurisdiction to review the agency’s determination that Musa’s asylum application was untimely and denied the petition with respect to the Convention Against Torture because the agency did not err by finding that the government in Botswana would not acquiesce to forced FGM. View "Musa v. Lynch" on Justia Law

Jankovic, a citizen of Bosnia and Herzegovina, was admitted to the U.S. as a refugee in 2003 and received permanent residence status in 2005, but was ordered removed on the ground that he obtained that status by fraud. He concedes committing fraud, which authorized his removal, 8 U.S.C. 1182(a)(6)(C)(i). He sought a waiver on the ground that his removal would cause extreme hardship for his wife Dragana, who was admitted with him in 2003 and became a U.S. citizen in 2009. An Immigration Judge rejected that request on grounds that Dragana would not suffer extreme hardship and that, even if she would suffer hardship, his history of lying to immigration officials justified the exercise of discretion against relief. The IJ also discussed whether Jankovic had committed war crimes during the Bosnian conflict by assisting in the persecution of ethnic minorities, rendering him inadmissible, but stated that he did not need to reach a final conclusion on that subject. The Board of Immigration Appeals affirmed. The Seventh Circuit dismissed his petition for review, noting that it lacks jurisdiction to review the agency’s discretionary decisions and that either ground was sufficient to support removal. View "Jankovic v. Lynch" on Justia Law

Rostran, a Nicaraguan citizen, entered the U.S. illegally in 2006, and decided to stay. He claims to fear that the government of Nicaragua would encourage or condone his being murdered by its supporters because of his and his family’s political views, but did not make a timely application for asylum, 8 U.S.C. 1158(a)(2)(B). In 2010 he was convicted of public intoxication and driving under the influence. Eventually he was ordered to be removed to Nicaragua. He then applied for asylum and for withholding of removal under 8 U.S.C. 1231(b)(3)(A), arguing that his “life or freedom would be threatened in [Nicaragua] because of [his] race, religion, nationality, membership in a particular social group, or political opinion.” The immigration court and the Board of Immigration Appeals rejected his claims. The Seventh Circuit affirmed as to asylum, but vacated the denial of withholding of removal as not adequately reasoned. “What is missing ... are data that would enable a rational determination of whether there was a greater than 50 percent probability that the alien would lose his life or his freedom if removed to his country of origin.” View "Gutierrez-Rostran v. Lynch" on Justia Law

In 1991, Lopez, age 12, illegally entered the U.S. He has not returned to Mexico, although his sister still lives in the neighborhood where he grew up. In 2009, Lopez was charged with dealing and possessing illegal drugs. He pled guilty to one count and was convicted of a Class A Felony for “Dealing in Cocaine over 3 grams.” While Lopez was in prison, DHS interviewed him, ultimately ordering removal under 8 U.S.C. 1101(a)(43)(B). In 2014, an asylum officer found that Lopez had a reasonable fear of persecution or torture if he returned to Mexico because he is homosexual and HIV-positive. An IJ found that Lopez was not eligible for asylum or withholding of removal because he was convicted of a “particularly serious crime” and that he was not eligible for deferral of removal under the Convention Against Torture because, it was not “more likely than not” that he would be tortured if returned to Mexico. The BIA dismissed an appeal. The Seventh Circuit affirmed. Lopez did not satisfy his burden to show that it is more likely than not that he would be tortured by the government or with the government’s acquiescence if he returned to Mexico. View "Martinez-Lopez v. Lynch" on Justia Law

Isunza came to the U.S. from Mexico at age 17 in 1978. His parents were lawfully present in the U.S., but Isunza became a permanent resident through the sponsorship of his wife in 1994. In 1998, he was found guilty of possession of 0.1 grams of cocaine and placed on probation. He successfully renewed his permanent resident card in 2000 and traveled to Mexico without incident in 2000, 2001, 2006, and 2011. When he returned to Chicago from Mexico in 2011, authorities confiscated his permanent resident card. DHS alleged that Isunza was subject to removal as an alien convicted of a controlled substance offense, 8 U.S.C. 1182(a)(2)(A)(i)(II). Isunza argued that his continuous residency in the U.S. after re-entering in 2000 made him eligible for cancellation of removal, 8 U.S.C. 1229b(a). The IJ found him ineligible because the clock for accruing time toward continuous residency stopped when Isunza was convicted in 1998; his subsequent departures from and returns to the U.S. did not start the clock again. The BIA dismissed his appeal. The Seventh Circuit denied an appeal, without considering a new argument that his admission into the U.S. as a minor should count toward his continuous residency. The BIA reasonably interpreted the statute and refused to consider that argument. View "Isunza v. Lynch" on Justia Law

Chen was born in China, in 1976. In 2004, Chen married Feng and they had a daughter. In 2005, the Chinese government appropriated Chen’s farmland, to build an industrial park. Chen was allowed to keep his house and received compensation, which Chen believed was inadequate. Chen and other farmers protested. Chen was held at the police station for four days. He claims the police repeatedly interrogated, threatened, and beat him. The police told Feng that Chen was in jail with dangerous criminals and would be released if she signed the land‐transfer agreement. She signed and paid a release fee. Chen obtained a visa, stating that he was a manager who wanted to learn about American technology. Feng remained in China; she told Chen that he had been threatened with incarceration and sterilization if he returned. Chen stayed in the U.S. beyond his authorization date, then sought asylum, withholding of removal, and protection under the Convention Against Torture. DHS commenced removal proceedings under 8 U.S.C. 1227(a)(1)(B). The IJ denied all relief, finding Chen’s testimony credible, but not detailed or persuasive enough without corroboration to meet his burden of proof. Alternatively, the IJ ruled that Chen did not meet the statutory definition of a “refugee,” 8 U.S.C. 1101(a)(42)(A). The BIA affirmed. The Seventh Circuit denied Chen’s petition for review, finding the denial of relief supported by substantial evidence. View "Chen v. Lynch" on Justia Law

Estrada fled Honduras in 1994 after police there detained and tortured him. An immigration judge granted Estrada relief from removal, finding that he will more likely than not face torture if he is removed to Honduras. The Board of Immigration Appeals reversed, finding Estrada not eligible for withholding of removal because he was convicted in an Illinois state court of statutory rape in 1996, a crime the Board deemed “particularly serious.” The Seventh Circuit remanded, finding that the BIA applied the wrong standard of review. While Estrada may be ineligible for "withholding of removal," under the Immigration Act, 8 U.S.C. 1231(b)(3)(A), or the Convention Against Torture, he may be eligible for “deferral of removal” under only the Convention. The immigration judge found it more likely than not that Estrada will be tortured if he is removed to Honduras. The Board was required to review that factual finding only for clear error, not de novo. View "Estrada-Martinez v. Lynch" on Justia Law