Justia Immigration Law Opinion Summaries

As a result of criminal convictions Immigration and Customs Enforcement sought removal of lawful U.S. permanent residents. Pending removal proceedings, each was detained under 8 U.S.C. 1226(c), which provides that if ICE has “reason to believe” that an alien is “deportable” or “inadmissible” by virtue of having committed a specified crime, that alien “shall” be taken into custody when released from detention for that crime, "without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.” In a purported class action, the district court dismissed in part, holding that section 1226(c) did not violate substantive due process with respect to aliens who assert a substantial challenge to their removability. The court later held that the form giving aliens notice of their right to seek a hearing does not provide constitutionally adequate notice, that the government was required to revise the form, and that procedures for that hearing violate due process by not placing the initial burden on the government. The court then denied a motion to certify the class, stating that certification was “unnecessary” because “all aliens who are subjected to mandatory detention would benefit from the injunctive relief and remedies.” Stating that the district court “put the cart before the horse a,” the Third Circuit vacated. Once petitioners were released from detention, their individual claims became moot so the court retained jurisdiction only to rule on the motion for class certification—not to decide the merits issues. View "Gayle v. Warden Monmouth Cnty. Corr. Inst." on Justia Law

The petitioners, 28 women and their minor children, are citizens of El Salvador, Honduras, and Guatemala. The entered the U.S. in 2015 and were apprehended close to the border. Each indicated a fear of persecution if returned to their native country, claiming that they had been or feared becoming victims of domestic or gang violence. Following interviews with an asylum officer and review by an immigration judge, their fears were found to be not credible and their expedited removal (8 U.S.C. 1225(b)(1)) orders became administratively final. Each filed a habeas petition. The Third Circuit affirmed dismissal of the petitions, finding that the district court lacked subject matter jurisdiction under 8 U.S.C. 1252.1, which circumscribes judicial review for expedited removal orders issued under section 1225(b)(1). The court rejected an argument under the Suspension Clause of the U.S. Constitution: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The court noted “Petitioners’ surreptitious entry into this country," and Congress’ and the Executive’s plenary power over decisions regarding the admission or exclusion of aliens, in concluding that the limited scope of review is not unconstitutional, as to petitioners and other aliens similarly situated. View "Castro v. United States Dept. of Homeland Sec." on Justia Law

In 2009, Javier, a citizen of the Dominican Republic, entered the U.S. as a lawful permanent resident. In 2014 Javier was convicted, in Pennsylvania, for carrying a firearm in public and for making terroristic threats. An IJ concluded that Javier was removable under 8 U.S.C. 1227(a)(2)(A)(i) as an alien convicted of a “crime involving moral turpitude” based on his conviction for terroristic threats and also removable under 8 U.S.C. 1227(a)(2)(C) as an alien convicted of a “firearm offense.” The BIA affirmed, based solely on Javier’s terroristic threats conviction, stating that the offense defined by 18 Pa. Cons. Stat. 2706(a)(1) involves “an intentional action whose goal is to inflict [] psychological distress [that follows an invasion of the victim’s sense of personal security which] violates the norms of society to such a degree as to constitute moral turpitude.” The BIA concluded that it “need not address” the firearms conviction. The Third Circuit dismissed an appeal. A threat communicated with a specific intent to terrorize is an act “accompanied by a vicious motive or a corrupt mind” so as to be categorically morally turpitudinous. View "Javier v. Attorney Gen. of the United States" on Justia Law

Sunday, a citizen of Nigeria, was admitted to the U.S. in 1995 with permission to remain for a year. He overstayed and, in 2013, was charged as removable for overstaying and for committing certain crimes. An IJ held Sunday was removable based on his overstaying and on a bail jumping conviction. To avoid removal, Sunday applied for a U visa and petitioned USCIS for a waiver of inadmissibility, which was denied based on his criminal record. Sunday then applied for a waiver of inadmissibility from an IJ, under the Department of Justice, who determined that she lacked jurisdiction to consider Sunday’s request. The BIA affirmed, concluding that waivers regarding U visas are exclusively within the authority of USCIS, under the Department of Homeland Security, and cannot be granted by an IJ, and declining to consider a claim that removal constituted unconstitutionally disproportionate punishment. The Third Circuit denied a petition for review, noting that the Supreme Court has consistently held that removal is not punishment. View "Sunday v. Attorney Gen. of the United States" on Justia Law

In 1984, during the crackdown on the Solidarity movement in Poland, Koszelnik traveled to the U.S. on a nonimmigrant tourist visa, then applied for political asylum. He was assigned an “A-number.” Koszelnik’s asylum application was denied and deportation proceedings were initiated. An IJ denied his application for relief from deportation and granted him voluntary departure. Koszelnik remained in the U.S. The voluntary departure order became a final deportation order. After residing in the U.S. for approximately 10 years, Koszelnik applied for a diversity visa through the lottery program. Koszelnik failed to include his A-number on his application and incorrectly answered questions about deportation proceedings. Unaware of the prior deportation proceedings, the INS issued Koszelnik a new A-number and, in 1995, granted him permanent resident status. Under 8 U.S.C. 1256(a), despite the error, the statute of limitations for re-examining that status adjustment lapsed after five years, in 2000.. In 2012, Koszelnik applied for naturalization, again failing to provide his original A-number and incorrectly answering questions about removal. The government discovered its earlier error and denied his application, finding that failure to disclose his prior removal order and his original A-number meant that he had failed to demonstrate that he was lawfully admitted for permanent residence under 8 U.S.C. 1429 and that he was ineligible for naturalization. The Third Circuit affirmed summary judgment in favor of the government: Koszelnik failed to meet his burden of showing that he was lawfully admitted and was therefore not eligible for naturalization. View "Koszelnik v. Sec'y, Dept. of Homeland Sec." on Justia Law

Saliba obtained U.S. Temporary Protected Status (TPS) in 1992 by providing falsified documents indicating that he was a citizen of Lebanon. Saliba was a citizen of Syria, a country whose citizens at that time were not eligible for TPS. In 2001, Saliba was able to adjust his status to that of a legal permanent resident, although his fraudulent procurement of TPS should have rendered him statutorily “inadmissible” under 8 U.S.C. 1182(a)(6)(C)(i). When Saliba applied for naturalization in 2006, USCIS discovered the fraud and denied his application for naturalization, stating that Saliba’s apparent fraud precluded a finding that he had been “lawfully admitted” as a permanent resident as required for naturalization under 8 U.S.C. 1427(a). The district court dismissed. The Third Circuit affirmed, rejecting Saliba's argument that his decision to submit falsified Lebanese documents was involuntary and made under duress, due to his fear of the war-time conditions plaguing the Middle East at the time . Saliba’s fraudulent procurement of TPS in 1992 made him inadmissible for Legal Permanent Resident status, and, because he had not been “lawfully admitted” for permanent residence, he cannot be naturalized. View "Saliba v. Att'y Gen. of United States" on Justia Law

Bedolla illegally entered the U.S. in 1991; he traveled to Mexico and re-entered at least once since then. In 2012, he was arrested for failure to appear on a charge of driving under the influence of alcohol. He was placed in removal proceedings, 28 U.S.C. 1229a, as an alien present without being admitted or paroled. His application for adjustment of status was rejected because Bedolla had departed and reentered without inspection after accruing more than one year of unlawful presence in the U.S., 8 U.S.C. 1182(a)(9)(C)(i)(I). Before a scheduled hearing date, Bedolla pleaded guilty to possession with intent to manufacture or deliver cocaine. DHS placed Bedolla in expedited administrative removal proceedings under 8 U.S.C. 1228(b). The unsigned Certificate of Service accompanying the notice did not indicate the date or manner of attempted service, but indicated that Bedolla refused to acknowledge receipt. The period for response elapsed without response. A Final Administrative Removal Order (FARO) was signed. Bedolla timely filed a petition for review of the FARO. The Immigration Judge terminated the removal proceeding. The Third Circuit denied a petition for review, rejecting claims of due process violations and that a FARO was inappropriate because Bedolla was not convicted of an “aggravated felony.” View "Bedolla-Avila v. Att'y Gen. of the United States" on Justia Law

Ordonez, a citizen of Guatemala, entered the U.S. without inspection in 2014 and was detained. She claims that she expressed fear of returning to Guatemala because of abuse she had suffered there. The Department of Homeland Security removed her, but less than two months later, Ordonez reentered with the youngest of her three sons, Gonzalez, then six years old. Border Patrol detained them. DHS initiated proceedings to restore the prior order of removal and served Gonzalez with notice under 8 U.S.C 1182(a)(6)(A)(i). While proceedings were pending, Ordonez sought asylum, withholding of removal, and protection under the Convention Against Torture, based on her alleged fear of abusive conduct by her former boyfriend. Gonzalez applied for derivative relief. An IJ and the BIA denied relief. While a petition was pending in the Third Circuit, the BIA granted a joint motion to reopen and reissued its decisions and orders without change. Ordonez did not file a petition for review in of the reissued decisions and orders. The Third Circuit held that, because the reissued decisions and orders did not alter the challenged decisions and orders it had jurisdiction over the petition, but denied that petition on the merits. View "Ordonez-Tevalan v. Att'y Gen. of the United States" on Justia Law

Frias-Camilo, a citizen of the Dominican Republic, entered the U.S. as a lawful permanent resident in 2006. In 2013, he entered a plea of guilty in Pennsylvania state court to conspiracy to possess a controlled substance, cocaine. He was originally sentenced to a 12-month period of probation, but, 16 months later, the court amended his sentence and imposed a sentence of “guilty without further penalty,” pursuant to 42 Pa. Cons. Stat. 9723.2, vacating several earlier-imposed punitive aspects of Frias-Camilo’s sentence. DHS charged removability under 8 U.S.C. 1227(a)(2)(B)(i) and an immigration judge rejected Frias-Camilo's claims. The Third Circuit denied a petition for review, upholding the BIA’s determination that Frias-Camilo was removable and ineligible for cancellation of removal because he had not demonstrated his physical presence in the U.S. for a period of seven years. A “formal judgment of guilt” was entered against Frias-Camilo, establishing his “conviction” as defined by 8 U.S.C. 1101(a)(48)(A). View "Frias-Camilo v. Att'y Gen. of the United States" on Justia Law

Gourzong, a native of Jamaica, was admitted to the U.S. as a lawful permanent resident in 1983. In 1993, having joined the U.S. military, he was convicted by a special court-martial at Camp Pendelton of willfully disobeying a lawful order, 10 U.S.C. 890(2), and “commit[ing] an act of sexual intercourse with a female not his wife who has not attained the age of sixteen years,” 10 U.S.C. 920. Gourzong was represented by counsel and pleaded guilty. He received a sentence of six months confinement, loss of pay, and bad-conduct discharge. The convening authority suspended part of the confinement and withheld executing the bad-conduct discharge until after appellate review procedures, 10 U.S.C. 871(c). An IJ found Gourzong removable, 8 U.S.C. 1227(a)(2)(A)(iii), having been convicted of an aggravated felony. The BIA affirmed, rejecting his argument that convictions by special courts-martial categorically fall outside the definition in 8 U.S.C. 1101(a)(48)(A): “‘conviction’ means, with respect to an alien, a formal judgment of guilt of the alien entered by a court.” Although it is possible that a special court-martial can convene without a legally trained judge presiding, their convictions generally qualify as convictions under the Act. The Third Circuit agreed and, therefore, concluded that it lacked jurisdiction to consider Gourzong’s appeal. View "Gourzong v. Att'y Gen. of the United States" on Justia Law