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

by
Sixth Circuit upholds BIA interpretation of "previously filed" application for adjustment of status. In 2001, Sofokli, a citizen of Albania, entered the U.S. under a visitor visa. Four months after it expired, his employer sought labor certification, which was granted 11 months later. His employer then sought a work visa; Sofoklis applied to adjust his status to permanent resident. USCIS granted advance parole, which permits an alien who is otherwise inadmissible to leave the U.S. and reenter. USCIS approved the work-visa petition but denied the adjustment application, citing 8 U.S.C. 1255(k)(2), which bars aliens from adjusting their status if they have accrued more than 180 days in the U.S. without “lawful status.” Sofokli departed again and was paroled into the U.S. His second adjustment application was denied. An IJ ordered removal, rejecting Sofokli’s argument that he remained in lawful status because of his employer’s pending petitions. The BIA and Sixth Circuit affirmed, upholding 8 C.F.R. 1245.2(a)(1)(ii), which provides that, for an application to be subject to the jurisdiction of the immigration courts, the arriving alien must have filed the application while in the U.S. and must have “’departed from and returned … pursuant to ... advance parole to pursue the previously filed application for adjustment of status.” The court upheld the BIA’s conclusion that Sofokli’s second application was not “previously filed,” having been filed after returning from advance parole. View "Gazeli v. Sessions" on Justia Law

by
In 2001, returning from visiting his ailing father, Lopez, a citizen of Guatemala, crossed the Rio Grande into Texas. The border patrol arrested Lopez. Lopez lied about his name and nationality. Thinking that Lopez was a citizen of Mexico, the border patrol let him voluntarily return to Mexico. Lopez later crossed back into the U.S. evading apprehension. DHS tried to deport Lopez in 2008. Lopez applied for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act, 8 U.S.C. 1229b(e)(3). The IJ ruled that Lopez failed “to prove that he has not been apprehended at the time of entry after” 1990 or to establish that his removal would result in exceptional and extremely unusual hardship to his qualifying relatives, including Lopez’s American daughter. The BIA affirmed, without making any finding concerning whether Lopez was under surveillance when he entered. The Sixth Circuit vacated, in part, noting that the Act's “special rule cancellation” of removal provisions favor an individual if he sneaks across the border without detection or restraint. The burden is on the applicant to make this showing. The court reasoned that an applicant cannot be expected to show that government agents were not tracking his movement as he entered. Once the applicant has established that no one physically stopped him at the border, the government may use surveillance evidence as an affirmative defense. View "Lopez v. Sessions" on Justia Law

by
Lovano, a citizen of Canada, was admitted to the U.S. as a lawful permanent resident in 1973. In 1993 Lovano was convicted in Ohio for attempting to pass bad checks and theft. Although deportation proceedings were instituted, Lovano was granted a waiver under (now repealed) 8 U.S.C. 1182(c). Lovano was subsequently convicted in 2012 in Cleveland of aggravated assault. Removal proceedings were again instituted under 8 U.S.C. 1227(a)(2)(A)(ii), which authorizes the deportation of “[a]ny alien . . . convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct.” The Board of Immigration Appeals (BIA) affirmed a removal order. The Sixth Circuit denied a petition for review, rejecting an argument that the 2012 conviction for aggravated assault in Ohio was not a crime involving moral turpitude. View "Lovano v. Lynch" on Justia Law

by
Turfah, a citizen of Lebanon, entered the U.S. in September 1995, when he was 19 years old, on a visa that allowed him to enter as an unmarried child under the age of 21 who was “accompanying or following to join” his father, the principal visa holder. Despite arriving on his own, rather than accompanying or following his father, the immigration authorities mistakenly admitted Turfah. Turfah’s father arrived in the United States less than a month later, and ultimately became a naturalized citizen. When Turfah applied for naturalization in 2012, USCIS denied his application, finding that Turfah was “not lawfully admitted” and lack of good moral character based on Turfah’s failure to accurately report and pay federal income taxes in 2010. USCIS later dismissed the moral character ground for denial. The Sixth Circuit affirmed summary judgment, finding Turfah ineligible for naturalization because “the word ‘accompanying’ means what it says in plain English.” A court cannot invoke its equitable powers to circumvent the requirements of the immigration laws. View "Turfah v. United States Citizenship & Immigration Services" on Justia Law

by
Marikasi, a citizen of Zimbabwe, legally entered the U.S. in 2002 on a non-immigrant visitor’s visa with an expiration date of July 18, 2002. On November 25, 2002, Marikasi sought asylum and withholding of removal. She referred to an abusive husband and did not check the box provided for “political opinion” as a reason for seeking asylum, but instead checked “nationality” and “membership in a particular group.” The only organization she mentioned was the Musasa Project for battered women. A 2005 amended application stated that her husband was a government agent and that she had been abused by members of the leading (ZANU PF) party “because I belonged to the Movement for Democratic Change (MDC) [the opposition]. My brother was brutalized and killed in 2002 by ZANU PF members because of my political activities.” The BIA affirmed denial of her petition and ordered removal. The Sixth Circuit affirmed. Important factual inconsistencies between Marikasi’s asylum application and her testimony supported an adverse credibility determination. Marikasi did not present sufficient corroborative evidence to rehabilitate her discredited testimony or independently satisfy her burden of proof. Marikasi failed to prove that she could not leave the relationship or that she could not relocate to another part of Zimbabwe. View "Marikasi v. Lynch" on Justia Law

by
Sakhawati, a citizen of Bangladesh, was apparently admitted to the U.S. in 1998, using a passport issued to Nessa. She travelled to Canada and was denied refugee status there in 2003. She was granted asylum and withholding of removal in the U.S. under the name Sakhawati in 2006 after testifying to being kidnapped, forced to marry, and targeted for promoting feminist political views inside Bangladesh. In 2007, DHS appealed and moved to reopen, based on new information showing that that Sakhawati had actually been residing in Canada during the time that she was allegedly being held captive in Bangladesh. On remand, the IJ denied Sakhawati relief, and ordered her removed to Bangladesh. The Sixth Circuit vacated and remanded; a DHS official exercising due diligence could have readily discovered the existence of the Nessa alien file and presented it at Sakhawati’s original hearing. Sakhawati then sought Attorney Fees under the Equal Access to Justice Act, 28 U.S.C. 2412(d). Sakhawati’s counsel, billing at an hourly rate of $190.28, sought $21,248.37 in attorney fees, legal-assistance fees, and expenses for 104.85 hours claimed to have been spent on the matter prior to the Application for Attorney Fees, plus an additional $1,908.20 for 10.00 hours spent preparing the Application and responding to the opposition. The Sixth Circuit awarded a total of $15,653.76 in attorney fees, legal-assistance fees, and expenses. View "Sakhawati v.Lynch" on Justia Law

by
Amezola-Garcia unsuccessfully attempted to enter the U.S. in 1996 by presenting the resident alien card of another. He agreed to return to Mexico in lieu of exclusion proceedings. In 1997, Amezola-Garcia successfully entered without being admitted or paroled. Since that entry, Amezola-Garcia has traveled to Mexico and reentered the U.S. without being admitted or paroled at least four different times. In 2011, DHS commenced removal proceedings (8 U.S.C. 1182(a)(6)(A)(i)). He sought withholding of removal and relief under the Convention Against Torture, stating that he fears he will be harmed if he returns to Mexico, as a member of a “family which has been targeted by persons the government of Mexico cannot or will not control.” He cited the unsolved murder of his brother-in-law, a member of a “government organization of defense for Mexico” in 2009. The IJ concluded that Amezola-Garcia lacked good moral character because he “prevaricated intentionally” with regard to his application; that his testimony was often inconsistent; and that “he has made up his story out of absolutely nothing.” A single-member panel of the BIA affirmed. The Sixth Circuit found his appeal without merit, but remanded for reconsideration of voluntary removal. View "Amezola-Garcia v. Lynch" on Justia Law

by
Six years ago, illegal immigrant Canelas-Amador was charged in Tennessee state court with felony aggravated assault. Canelas-Amador signed a “Waiver of Trial by Jury and Acceptance of Plea of Guilty.” The court approved the agreement. Before the court could enter judgment or pronounce a sentence, immigration authorities took Canelas-Amador into custody, deporting him. When Canelas-Amador failed to appear for a presentence interview, the Tennessee court issued a bench warrant. Canelas-Amador reentered the U.S. illegally, pled guilty to illegal reentry in Texas, and was sentenced to one year of imprisonment. In 2015, he was arrested in Tennessee. He pled guilty to illegal reentry. The district court imposed a sentence of 57 months’ imprisonment, finding that the state court order constituted a “conviction for a felony that is . . . a crime of violence,” mandating a 16-point enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii). The Guideline does not define “conviction.” The court looked to 8 U.S.C. 1101(a)(48)(A), which refers to a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and the judge has ordered some punishment, penalty, or restraint. The Sixth Circuit reversed. A plea agreement approved in a form order falls short of “a formal judgment of guilt.” View "United States v. Canelas-Amador" on Justia Law

by
Reyes entered the U.S. from Mexico, without inspection, in 1994; he became a lawful permanent resident in 1998. Reyes is married and has five children, all U.S. citizens. In 2015, Reyes was charged with removability under 8 U.S.C. 1227(a)(2)(A)(ii) for “hav[ing] been convicted of two crimes involving moral turpitude [CMT] not arising out of a single scheme of criminal misconduct.” The Notice listed three prior state (Ohio) criminal charges: in 2000, Reyes was convicted of soliciting; in 2003, Reyes was convicted in Hamilton for passing bad checks; in 2005, Reyes was convicted of resisting arrest The IJ found that Reyes’s prior charges for soliciting prostitution and passing bad checks were CIMTs and that solicitation of prostitution was a CIMT because it was “similar to other crimes the Board has previously found to be morally turpitudinous, including renting a room with knowledge that it will be used for prostitution, keeping a house for prostitution, and the act of prostitution.” The BIA affirmed. The Sixth Circuit denied relief. Although our society’s (and the BIA’s) views regarding prostitution and solicitation of prostitution may continue to “transform,” the BIA’s precedential opinions on prostitution are entitled to Chevron deference and they are not unreasonable. View "JReyes v. Lynch" on Justia Law

by
In 1994, Govindbhai Patel, a citizen of India, sought asylum and employment authorization, stating that he arrived in New York as a visitor in 1993. His wife, Vidhyaben, also applied, asserting that she arrived as a visitor in 1994. Both denied traveling through another country before entering the U.S. An immigrant petition for an alien worker was approved for Govindbhai in 2004. He applied for adjustment of status, reiterating that he entered as a visitor. Vidhyaben and their children filed derivative applications, indicating that they entered without inspection. In 2005, Govindbhai stated under oath that he entered, through New York, with a visa . In subsequent interviews, Govindbhai stated under oath that he entered by crossing the border from Mexico with a smuggler and that his family members also used smugglers. In 2008, USCIS denied the applications. DHS initiated removal and charged Govindbhai with seeking to procure an immigration benefit by fraud or by willfully misrepresenting a material fact. Seeking adjustment under 8 U.S.C. 1255, all four Patels testified that they were smuggled into the U.S.: two from Mexico, and two from Canada. The IJ ordered their removal. The BIA dismissed an appeal. The Sixth Circuit rejected an appeal. Govindbhai bore the burden to prove that he satisfied the requirements for adjustment of status. His concession of removability was not sufficient to prove that he satisfies the 8 U.S.C. 1255 requirement of having entered the country without inspection. View "Patel v. Lynch" on Justia Law