Justia Immigration Law Opinion Summaries

Shuti, from Albania, entered the U.S. as a permanent resident in 2008 at age 13. In 2014, Shuti and some friends committed a “larceny of marijuana.” Shuti pleaded guilty to felony unarmed robbery, defined as “larceny of any money or other property” accomplished by “force or violence against any person” or “assault[ing] or put[ting] the person in fear.” Mich. Comp. Laws 750.530. Shuti was sentenced to more than two years in prison. DHS initiated removal, 8 U.S.C. 1227(a)(2). A non-citizen convicted of an aggravated felony after admission is ineligible for most discretionary relief; “aggravated felony” is defined as including “a crime of violence (as defined in section 16 of Title 18 ....) for which the term of imprisonment [is] at least one year,” 8 U.S.C. 1101(a)(43)(F). The cross-referenced definition of “crime of violence” is: an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used. Shuti unsuccessfully applied for discretionary relief, claiming that his attorney “never discussed” the immigration consequences of his plea. The BIA affirmed, stating that unarmed robbery was “categorically a crime of violence” under 18 U.S.C. 16(b). Meanwhile, the Supreme Court held the Armed Career Criminal Act’s residual definition of “violent felony,” 18 U.S.C. 924(e)(2)(B)(ii), void for vagueness. The BIA concluded that the void-for-vagueness doctrine did not apply to “civil” deportations. The Sixth Circuit vacated the order of removal, concluding that the wide-ranging inquiry required by the two statutory phrases was the same, so the immigration code’s residual clause is also unconstitutionally vague. View "Shuti v. Lynch" on Justia Law

In 1999, Hosseini’s wife was granted asylum. Hosseini lawfully entered the U.S. as a derivative asylee in 2000. Hosseini sought to obtain permanent resident status, 8 U.S.C. 1159. No action was taken on Hosseini’s application for 12 years. In 2013, the district court ordered USCIS to adjudicate Hosseini’s application within 60 days. USCIS sent Hosseini a Notice of Intent to Deny his application based on it determination that he had engaged in terrorist activities as defined by 8 U.S.C. 1182(a)(3)(B)(iv)(VI)(dd). Hosseini denied ties to terrorism, but acknowledged affiliation with a political organization called Fedaeian from 1979-1982 in Iran and that he had distributed literature for Fadayeen Khalq (FeK) and Mujahedin-e Khalq (MeK) until 1985. USCIS denied his application, finding that Fek and MeK fell within the definition of undesignated terrorist organizations. Hosseini’s asylum status was not revoked; no removal proceedings were instituted. Hosseini challenged USCIS’s decision, stating that he could not be “inadmissible” because he was admitted as a derivative asylee. The court rejected the government’s jurisdictional arguments, but dismissed, holding that the denial was not a “final agency action” under the Administrative Procedure Act. The Sixth Circuit reversed, concluding that the denial was a final agency action, given that no removal action is pending. View "Hosseini v. Johnson" on Justia Law

Lee, now 47, moved to the U.S. from South Korea with his family in 1982 and has lived here legally ever since. After completing high school, he became a successful Memphis restaurateur. He also became a small-time drug dealer, and, in 2009, following a sting operation, he was charged with possession of ecstasy with intent to distribute, 21 U.S.C. 841(a)(1). The case against him was very strong. Lee’s attorney advised him to plead guilty in exchange for a lighter sentence. Lee, unlike his parents, never became an American citizen. His lawyer incorrectly assured him that he would not be subject to deportation. Possession of ecstasy with intent to distribute is an “aggravated felony,” rendering Lee deportable, 8 U.S.C. 1101(a)(43)(B), 1227(a)(2)(A)(iii). Lee moved to vacate his conviction and sentence under 28 U.S.C. 2255, contending that he received ineffective assistance of counsel. Applying the Strickland v. Washington test, the Sixth Circuit affirmed denial of relief. A claimant’s ties to the U.S. should be taken into account in evaluating, alongside the legal merits, whether counsel’s bad advice caused prejudice. Lee had no bona fide defense, not even a weak one, so despite his very strong ties to the U.S., he cannot show prejudice. View "Lee v. United States" on Justia Law

Wang entered the U.S. in 2006 as a nonimmigrant, authorized to remain until September. In November 2006, Wang appeared before an IJ, and after conceding removability, filed an application for asylum, withholding of removal, and protection under the Convention Against Torture. DHS argued that Wang’s asylum application was strikingly similar to several others. The IJ nonetheless determined that Wang’s testimony was credible, and granted Wang asylum based upon his practice of Christianity, stating that the similarities might have arisen from the applications’ having been prepared by the same person. The BIA reasoned that the IJ’s credibility analysis was insufficient and failed to adequately address the similarities between Wang’s application and the others. On remand, a new IJ found that Wang’s story contained implausible elements, such as Wang’s statement that he was under police surveillance but still managed to obtain a visa, which requires an interview, and was able to board a plane and leave China. Most damaging to Wang’s credibility were “two asylum applications from completely unrelated cases that share a striking number of very specific details.” The BIA and Sixth Circuit upheld denial of Wang’s petition. An IJ may properly take such remarkably similar facts as evidence that an applicant is not telling the truth, at least where the applicant has had a chance to explain the similarities. View "Wang v. Lynch" on Justia Law

Bašić, a Balkan native, came to the U.S. in 1994 as a refugee to escape the civil war that was tearing Yugoslavia apart. She settled in Kentucky and became a naturalized citizen. She is now accused in Bosnia, one of Yugoslavia’s successor states, of crimes committed against ethnic Serbs during the war while Bašić was a member of the Croatian army. Bosnia asked the U.S. to extradite Bašić for trial. The Department of State filed a Complaint for Extradition in 2011. A Magistrate Judge certified the complaint, concluding that Bašić was extraditable under a 1902 treaty between the U.S. and the Kingdom of Serbia, 32 Stat. 1890. Direct appeal is not available in extradition proceedings, so Bašić filed a petition for a writ of habeas corpus under 28 U.S.C. 2241. The Sixth Circuit affirmed denial, rejecting arguments that the Treaty prohibits extradition of U.S. citizens to Bosnia and that the Bosnian government failed to produce a warrant for Bašić’s arrest as required by the Treaty. View "Bašic v. Steck" on Justia Law

Maslenjak, an ethnic Serb and native of Bosnia, came to the U.S. in 2000 as a refugee fleeing the civil war in the former Yugoslavia. Maslenjak claimed she and her family feared persecution in Bosnia because her husband had evaded conscription into the Serbian army during the war. In fact, Maslenjak’s husband had not only been in the Serbian militia during the war but had served as an officer in a unit implicated in war crimes. Maslenjak was granted refugee status and ultimately obtained her naturalization. Based on her misrepresentations during the immigration process, she was later convicted of knowingly procuring her naturalization contrary to law, 18 U.S.C. 1425(a) and of knowingly using an unlawfully issued certificate of naturalization, 18 U.S.C. 1423. The Sixth Circuit affirmed, rejecting arguments that the district court improperly instructed the jury that her false statements need not be material in order to convict Maslenjak of procuring her naturalization contrary to law or erroneously instructed the jury that it could also convict Maslenjak if the jury found that she lacked good moral character. View "United States v. Maslenjak" on Justia Law

Zheng, a citizen of China, entered the U.S. without inspection by crossing the Mexican border in 2014, with her 22-year-old son. Following a credible fear interview, in which Zheng claimed that she was arrested by the police in China and threatened with harm unless she stopped practicing Christianity, DHS initiated removal proceedings, charging Zheng under 8 U.S.C. 1182(a)(6)(A)(i). She sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT), claiming that she had a well-founded fear of persecution on the basis of her religion. In a 28-page opinion, the IJ summarized the hearing testimony, determined that Zheng lacked credibility, and held that the evidence Zheng presented (three letters purportedly from Zheng’s sisters) was insufficient corroborative evidence to support her claims. The IJ ordered Zheng removed to China. The BIA concluded that she did not meet her burden of proving eligibility for asylum, withholding of removal, and protection under the CAT. The Sixth Circuit denied a petition for review, finding the IJ’s determination supported by substantial evidence and rejecting claims of various due process violations. View "Zheng v. Lynch" on Justia Law

Sakhawati, a citizen of Bangladesh, was apparently admitted to the U.S. in 1998, using a passport issued to “Muhibun 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, the Department of Homeland Security appealed and moved to reopen the proceedings, based on new information showing that Sakhawati’s story was fraudulent and that Sakhawati had actually been residing in Canada during the time that she was allegedly being forced to marry and held captive in Bangladesh. The BIA granted the motion. On remand, the IJ reversed his original ruling, denied Sakhawati’s claims for relief, and ordered her removed to Bangladesh. Sakhawati appealed, arguing that the documents proffered by DHS were previously available and could have been discovered and presented at her prior hearing. 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. View "Sakhawati v. Lynch" on Justia Law

Odeh was charged under 18 U.S.C. 1425(a), which provides that “[w]hoever knowingly procures or attempts to procure, contrary to law, the naturalization of any person” shall be fined or imprisoned. On her 1994 immigrant visa application and her 2004 naturalization application, Odeh stated that she had continuously lived in Amman since 1948 and answered “No” in response to questions of whether she had “ever been arrested, convicted, or ever been in a prison,” been convicted of “a crime involving moral turpitude,” or been “convicted of 2 or more offenses for which the aggregate sentences were 5 years or more.” Odeh lived in Israel and Lebanon before moving to Jordan in 1983. In 1969-1970, Odeh was convicted for her role in a bombing in a supermarket that killed two civilians and wounded others, and for her role in an attempted bombing of the British Consulate. One conviction related to her membership in the Popular Front for the Liberation of Palestine, which was designated a “foreign terrorist organization” by the Secretary of State in 1997. After her conviction, the court revoked Odeh’s citizenship and sentenced her to 18 months’ imprisonment. The Sixth Circuit vacated, based on the exclusion of Odeh’s witness, an expert in post-traumatic stress disorder, from testifying about why Odeh did not know that her statements were false due to alleged torture in an Israeli prison. Such testimony is not categorically inadmissible to negate a defendant’s knowledge of the falsity of a statement. View "United Syayes v. Rasmieh Odeh" on Justia Law

Hih, a Palestinian, overstayed a nonimmigrant visa and was subjected to removal proceedings. He sought asylum, withholding of removal, and relief under the Convention Against Torture, testifying that he had worked as an anti-terrorist agent with the Palestinian Authority, which subjected him to threats of persecution from Hamas. The IJ found Hih not to be credible and denied relief, but granted Hih’s request for voluntary departure. The BIA affirmed in January 2013, but found the IJ’s advisals regarding voluntary departure deficient. Instead of reversing the grant of voluntary departure, the BIA dismissed Hih’s appeal of the removal order and remanded “to allow the [IJ] the opportunity to provide [Hih] with the proper voluntary departure advisals.” At a March 13, 2013 hearing, Hih unsuccessfully attempted to supplement the record, then withdrew his request for voluntary departure. The IJ ordered Hih removed. Hih appealed. On April 3, 2015 the BIA treated Hih’s appeal as a motion to reconsider its earlier order and denied it as outside of the 30-day window. The Sixth Circuit dismissed for lack of jurisdiction, noting that Hih’s arguments concerned only the January 2013 BIA decision, which was “final,” and that Hih was required to file his appeal within 30 days of the BIA’s final order. View "Hih v. Lynch" on Justia Law