Articles Posted in US Court of Appeals for the Seventh Circuit

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Herrera-Ramirez is a citizen of Mexico but has lived in the U.S. since she was six years old. She is married and has four U.S.-citizen children. She was at a Milwaukee bar when her friends got into a fight with other patrons. Herrera-Ramirez ushered her friends out of the bar and into her car, intending to leave. At the request of her friend, she drove past the other patrons who were standing outside the bar. Her passenger shot two of the bystanders. After the shooting, Herrera-Ramirez did not contact the police. The police found her, arrested her, and found the gun in her car. She was convicted of first-degree reckless injury and sentenced to 11 months in prison. An IJ and the BIA found that her offense was a “particularly serious crime” and that she was ineligible for withholding of removal (the only possible relief). The Seventh Circuit dismissed her petition for review from that determination for lack of jurisdiction; a court may not second-guess the Board’s decision that a crime is “particularly serious” under 8 U.S.C. 1252(a)(2)(B)(ii), unless the petitioner has raised a question of law. Herrera-Ramirez was disputing only the Board’s discretionary characterization of her offense. View "Herrera-Ramirez v. Sessions" on Justia Law

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Tsegmed, a citizen of Mongolia, overstayed a nonimmigrant visa and has lived in the U.S. since 2004. In 2008, after his second DUI arrest, the government placed him in removal proceedings. He sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Tsemed had been a high-ranking officer in the Mongolian military and had knowledge of the internal workings of the governing Communist regime. He and his friend, Bayarbat, became involved with the pro-democracy movement and were arrested twice. Bayarbat’s family was killed; Tsegmed believes the government caused the deaths of his son and his brother and that agents were still looking for him. The IJ denied relief; the BIA affirmed. The Seventh Circuit denied a petition for review, stating that it lacked jurisdiction to review the denial of his asylum application because Tsegmed had missed the filing deadline and had not established material changes or extraordinary circumstances. The evidence did not compel the conclusion that he is eligible for withholding or CAT relief. Tsegmed had a subjectively genuine fear of persecution is not objectively reasonable. The Democratic Party controls the presidency and a plurality of the Mongolian parliament. The State Department reports that there are no official political prisoners or detainees in Mongolia View "Otgonbaatar Tsegmed v. Jefferson B. Sessions III" on Justia Law

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Lopez, a citizen of El Salvador, entered the U.S. without inspection around 1996. In 1997, he was convicted of felony possession of marijuana. In 2015, DHS charged Lopez as removable as an alien present in the U.S. without being admitted or paroled, 8 U.S.C. 1182(a)(6)(A)(i); and as an alien convicted under a controlled substance law, 8 U.S.C. 1182(a)(2)(A)(i)(II). Lopez sought asylum and withholding of removal, alleging extortion by Salvadoran gangs. The IJ denied Lopez’s application because Lopez had not filed his asylum application within one year of his last entry; his lack of knowledge about the process did not constitute changed or extraordinary circumstances. The IJ held that Lopez’s fear of persecution was “[n]either objectively reasonable [n]or on account of any of the statutorily enumerated grounds,” as there was no evidence that any future mistreatment would be on account of Lopez’s race, religion, nationality, political opinion, or social group membership. The BIA dismissed an appeal, rejecting an argument that the gang would target Lopez based on its perception of him as a wealthy business owner who failed to comply with its demands. The Seventh Circuit dismissed an appeal for lack of jurisdiction. Lopez failed to establish that his life or freedom would be threatened based on a protected ground. View "Lopez v. Sessions" on Justia Law

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Chagoya‐Morales, a citizen of Mexico, illegally entered the U.S. In 2008, he was convicted of aggravated robbery. In 2009, he was deported. Chagoya‐Morales did not obtain permission to reenter. In 2015, Chicago Police conducted a traffic stop on a vehicle in which Chagoya‐Morales was a passenger. The officers allegedly observed Deantes using her cell phone while driving. Approaching Deantes’s car, the officers smelled a strong odor of cannabis emanating from the vehicle, conducted a pat down search of Chagoya‐Morales, and recovered a small plastic bag containing marijuana. Chagoya‐Morales was charged with illegal reentry into the U.S., 8 U.S.C. 1326(a) and 6 U.S.C. 202(4). Chagoya‐Morales filed a motion to suppress, arguing that the traffic stop was illegal and so that the government’s knowledge of his name and his immigration status should be suppressed as “fruit of the poisonous tree.” The Seventh Circuit upheld the denial of the motion and the addition of 16 offense levels under the “crime of violence” enhancement in U.S.S.G. 2L1.2(b)(1)(A)(ii). The Fourth Amendment does not prohibit police from requiring a person to identify himself, nor does it guarantee a defendant the right to conceal his identity during a criminal prosecution. Chagoya‐Morales’s prior 2008 conviction is a crime of violence under the guidelines. View "United States v. Chagoya-Morales" on Justia Law

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Garcia, a Honduran national, came to the U.S. in 2003. He was ordered removed in absentia and eventually departed in 2005. Garcia claims that he encountered persecution upon his return to Honduras because of his unpopular political views— his opposition to deforestation. He was kidnapped and beaten. He returned to the U.S. in 2014 and, after being apprehended, sought asylum. The Chicago Asylum Office issued a positive reasonable fear determination and referred his case to an Immigration Judge for withholding‐only proceedings. Garcia then filed an asylum application. The IJ granted Garcia statutory withholding of removal, stating that she lacked the authority to reconsider the reinstatement of Garcia’s removal order (8 C.F.R. 208.31(e)). The Board of Immigration Appeals rejected Garcia’s argument that he had a statutory right to seek asylum under 8 U.S.C. 1158(a). The BIA reasoned that it lacked authority to declare the controlling regulations in violation of the statute, but also noted that “several federal courts have held a person in reinstatement proceedings is not eligible for and cannot seek asylum.” The Seventh Circuit dismissed an appeal because asylum is a form of discretionary relief, so Garcia lacks standing to challenge the regulations prohibiting him from applying for it. View "Garcia v. Sessions" on Justia Law

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Fuentes pleaded guilty to illegal reentry by a deported alien, 8 U.S.C. 1326(a) and (b)(2), and was sentenced to 24 months’ imprisonment. The Seventh Circuit affirmed, stating that Fuentes had waived his argument that the district court erred in its Sentencing Guidelines calculation. The court noted that the plea agreement stated that “[p]ursuant to Guidelines 2L1.2(b)(1)(C) defendant’s offense level is increased by 8 levels because defendant previously was deported after a conviction for an aggravated felony.” The parties had agreed that the resulting advisory Guidelines range was 24-30 months. View "United States v. Fuentes" on Justia Law

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Sanchez-Lopez pleaded guilty to unauthorized presence in the U.S. after removal, 8 U.S.C. 1326(a), and was sentenced to 24 months’ imprisonment—90 days above the guidelines range. The district court stated that, in an effort to deter future illegal reentry, it was sentencing him to a lengthier term than the sentence he had served the last time he was convicted of the same offense. Sanchez-Lopez had a long history of criminal activity in and removal from the U.S., dating back to his first entry in 1994 and including convictions for DUI, hit-and-run, driving with a suspended license, battery, sexually assaulting an 11-year-old child, and criminal escape. He claimed that his wife’s illness and need for care prompted his latest return. The Seventh Circuit affirmed the sentence. The district court thoughtfully considered Sanchez-Lopez’s personal characteristics, including that he had not committed “serious offenses” since reentering, his reason for returning, and the danger posed to society by his many drunk driving arrests. The court focused on one particular concern in fashioning an appropriate sentence—the need to deter Sanchez-Lopez from continuing to enter the country illegally. That decision was proper; 18 U.S.C. 3553(a)(2)(B) specifically instructs courts to consider the need “to afford adequate deterrence to criminal conduct.” View "United States v. Sanchez-Lopez" on Justia Law