Articles Posted in US Court of Appeals for the Seventh Circuit

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After Son became a U.S. citizen in 2013, she filed a successful I-130 visa petition on Matushkina’s (her mother) behalf. A U.S. Consulate denied Matushkina's 2015 application for an immigrant visa based on a U.S. Customs and Border Protection (CBP) 2009 determination, at the border, that she was inadmissible because Matushkina had not disclosed that her daughter was working in the U.S. in violation of her student visa, “a willful misrepresentation of a material fact,” 8 U.S.C. 1182(a)(6)(C)(i). Matushkina immediately withdrew her application for admission. The CBP officer entered the inadmissibility finding in the electronic system. Matushkina’s nonimmigrant visa was canceled; she promptly left the U.S. Seven years later Matushkina and Son filed suit, alleging that the 2009 inadmissibility determination violated the Administrative Procedures Act and that the CBP officer violated provisions of the CBP Inspector’s Field Manual and “due process and notions of fundamental fairness.” The court dismissed for lack of standing, As an unadmitted alien, Matushkina had no legally protected right to enter the U.S. Son had no standing because she was not yet a citizen in 2009. The Seventh Circuit affirmed, on the merits, reasoning that the case was, in essence, a challenge to the visa denial, and that decision is not subject to judicial review. View "Matushkina v. Davies" on Justia Law

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The Victims of Trafficking and Violence Protection Act of 2000, 8 U.S.C. 1101(a)(15)(U) created a new nonimmigrant visa classification that permits immigrants who are victims of serious crimes and who assist law enforcement to apply for and receive a nonimmigrant visa called a U-visa. There is a statutory cap of 10,000 U-visas each fiscal year. Since 2009, the U-Visa backlog has increased from 21,138 to 177,340 pending applications. Calderon-Ramirez, a citizen of Guatemala, entered the U.S. in 2002 and was the victim of an attack in 2014. He filed a petition for U Nonimmigrant Status in February 2015 and is waiting to be evaluated for the waiting list. In 2016, he sought a writ of mandamus, to compel Homeland Security to adjudicate his petition. The Seventh Circuit affirmed the dismissal of his suit. Ramirez did not set forth any facts that differentiate himself from other petitioners waiting ahead of him for adjudication. While there are instances when the government can and will expedite a petition, Ramirez failed to present a situation appropriate to warrant such an action. The court stated that the wait Ramirez faces is not unreasonable. View "Calderon-Ramirez v. McCament" on Justia Law

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Rodriguez entered the U.S. without inspection in 1999. In 2000, her boyfriend obtained a temporary restraining order against her, claiming that he feared for his safety after episodes of domestic violence. Rodriguez later testified that because she had nowhere else to go, and because she had small children and all her belongings in their shared apartment, she did not leave. Rodriguez pleaded no contest to knowingly violating a TRO and to misdemeanor bail jumping. Rodriguez sought cancellation of her removal as an alien continuously present in the U.S. for 10 years, 8 U.S.C. 1229b(b)(1)(A) and “a person of good moral character” during that time, indicating that removal would cause an “exceptional and extremely unusual hardship” to her five dependent children (including a cancer survivor) and that she had not been convicted of certain enumerated offenses, including violation of a protection order. The IJ decided that Rodriguez’s conviction was determinative, reasoning that Wisconsin law requires a judge to consider the danger posed to a victim and any pattern of abusive conduct by the perpetrator, so a misdemeanor conviction for violating a TRO is “categorically a removable offense.” The BIA and Seventh Circuit rejected her appeals. It does not matter that Rodriguez may not have acted violently by remaining on the premises; her violation of the avoidance-of-residence provision is enough. View "Rodriguez v. Sessions" on Justia Law

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DeKelaita provided legal representation for immigrants applying for asylum under 8 U.S.C. 1101(a)(42)(A). Applicants for asylum must sit for an interview with a U.S. Citizenship and Immigration Services officer and must provide a translator if one is needed. DeKelaita’s clients were primarily Assyrian or Chaldean Christians from Muslim‐ruled countries, such as Iraq. Many had suffered persecution, but their eligibility was doubtful because they either had already found refuge in another county or their history failed to meet the requirements for asylum. For at least nine clients, DeKelaita concealed evidence that the applicant had obtained legal status in a safe country or fabricated information about persecution. At the interview DeKelaita was able to ensure that applicants stuck to the script by coaching interpreters. He was convicted of conspiracy to defraud the government and for three false statements he either made or induced on his final (Albqal’s) application. The court vacated the three convictions related to Albqal’s application. The jury unanimously found only one false statement in Albqal’s application, but the court ruled that this statement was immaterial to his receipt of asylum. The court concluded that the government had failed to prove an element of the substantive crimes, leaving only the conspiracy conviction, which the Seventh Circuit affirmed. DeKelaita argued that the government failed to prove an overarching conspiracy. The jury had sufficient evidence to convict DeKelaita for either the charged conspiracy or a subsection of it. View "United States v. Dekelaita" on Justia Law

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Taylor, a citizen of Ireland, entered the U.S. in 2000 on a visitor’s visa. In 2008, Taylor was the victim of perjury, a qualifying crime under the Victims Protection Act., 8 U.S.C. 1101(a)(15)(U), which created the non-immigrant U-Visa program. The Act became law in 2000, but no regulations were issued for seven years. The issuance of U-Visas in large numbers began in 2009. The FBI certified that Taylor had provided the necessary assistance with the prosecution of the crime, Taylor applied for a U-visa in 2014. U.S Citizenship and Immigration Services (USCIS) determined that Taylor was eligible, but placed him on a waiting list because the statute prohibits the issuance of more than 10,000 U-visas per year. USCIS granted Taylor discretionary relief that defers removal and confers employment authorization benefits. Taylor filed suit, alleging that USCIS’s delay in promulgating regulations caused the backlog and asked the court to compel USCIS to immediately issue 80,000 U-visas to those on the waiting list. The court determined that Taylor lacked standing and dismissed his complaint. The Seventh Circuit affirmed. The agency lacks the statutory authority to give the relief sought. The U-visa limit was reached in 2016 and 2017. Taylor lacks constitutional standing; a court cannot review his claims at all, nor determine whether there was an unreasonable delay or a non-discretionary duty under the APA to compel USCIS to issue U-visas. View "Taylor v. McCament" on Justia Law

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Acquaah, now age 63, came from Ghana to the U.S. on a visitor’s visa and obtained conditional permanent resident status based on his marriage to a U.S. citizen. His application to remove residency conditions began proceedings that have spanned more than 25 years and included a charge that the marriage was entered into for the sole purpose of procuring entry as an immigrant. While those proceedings were pending, his first marriage ended, he remarried a U.S. citizen, and the two had a daughter. He obtained permanent residency under a different name on the basis of that second marriage. After discovery that he had used a new name, Acquaah was charged as statutorily deportable, 8 U.S.C. 1182(a)(6)(C)(i), and ineligible for a fraud waiver. The Seventh Circuit remanded. At his final hearing, Acquaah faced two charges: a 1992 charge of deportability based on termination of his permanent resident status and a later charge that he was deportable as an alien who by fraud or willful misrepresentation sought to procure immigration. The IJ found only the charge relating to the termination of conditional residency, sustained. The Board treated the specific statutory charge that the government decided to lodge and prove as dispositive of whether the waiver is available, but should have considered whether the charge sustained against Acquaah is related to fraud. View "Acquaah v. Sessions" on Justia Law

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Asentic, a Bosnian Serb who is now 65, was granted refugee status and brought his family to the U.S. from the former Yugoslavia more than 15 years ago. He has been a permanent resident for nearly that long, but the Board of Immigration Appeals authorized the government to remove Asentic because, in applying for refugee status, he failed to disclose his participation as a combatant in the Bosnian conflict during the 1990s. The Board could have granted Asentic a discretionary waiver of removal under 8 U.S.C. 1227(a)(1)(H) but declined to do so. The Seventh Circuit rejected Asentic’s appeal. “Although he presents a sympathetic case,” he is removable based on fraud, and the court lacked jurisdiction to review the Board’s discretionary decision to deny the waiver. View "Asentic v. Sessions" on Justia Law

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After his conviction for a felony in Illinois, Rodriguez-Contreras, a lawful U.S. permanent resident, was found in possession of a weapon and was convicted under 720 ILCS 5/24–1.1(a). The Board of Immigration Appeals concluded that he was removable as an alien convicted of an “aggravated felony,” 8 U.S.C. 1101(a)(43); violation of 18 U.S.C. 922(g)(1), which bars anyone convicted of a felony from possessing a firearm, is an aggravated felony. The Seventh Circuit remanded. The BIA did not address whether the substantive elements of the state offense match those of the federal law, which defines "firearm" as “any weapon … designed to … expel a projectile by the action of an explosive.” Compressed air is not an explosive, so pneumatic weapons are not “firearms.” Illinois law defines a firearm as “any device ... designed to expel a projectile ... by the action of an explosion, expansion of gas or escape of gas.” Illinois law is broader than the federal law. The court rejected an argument that the Illinois statute is “divisible” and permits judges to determine which statutory provision was involved. Illinois has a single crime of weapon possession by a felon, with multiple ways of committing that crime. A definitional clause does not create a separate crime. Federal law does not foreclose Rodriguez-Contreras’ obtaining discretionary relief from removal. In exercising discretion the BIA may consider that Rodriguez-Contreras possessed a weapon that is subject to both state and federal prohibitions. View "Rodriguez-Contreras v. Sessions" on Justia Law

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Garcia, a Honduran national, came to the U.S. in 2003. He was ordered removed and departed in 2005. Garcia claims that he was kidnapped and beaten upon his return to Honduras because of his opposition to deforestation. He returned to the U.S. in 2014 and, after being apprehended, sought asylum. The Chicago Asylum Office issued a positive reasonable fear determination. The IJ granted Garcia statutory withholding of removal, stating that she lacked the authority to reconsider the reinstatement of Garcia’s removal order. The BIA rejected Garcia’s argument that he had a statutory right to seek asylum under 8 U.S.C. 1158(a), reasoning that it lacked authority to declare the controlling regulations in violation of the statute. The BIA noted that “several federal courts have held a person in reinstatement proceedings is not eligible for and cannot seek asylum.” The Seventh Circuit initially 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. On rehearing, the government and court agreed that Garcia has standing. On the merits, the Seventh Circuit held that 8 U.S.C. 1231(a)(5) plainly prohibits aliens subject to reinstatement of a removal order from applying for asylum. View "Garcia v. Sessions" on Justia Law

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In 2014, the Seventh Circuit held that the Attorney General has authority under 8 U.S.C. 1182(d)(3)(A)(ii) to waive an alien’s inadmissibility and to halt removal temporarily while the alien requests a U visa. In Sanchez’s case, the Board of Immigration Appeals held that IJs lack authority to grant such requests. The Seventh Circuit vacated and remanded. Delegation from the Attorney General to immigration judges is a matter of regulation; 8 C.F.R. 1003.10(a) states that “[i]mmigration judges shall act as the Attorney General’s delegates in the cases that come before them.” Disagreeing with the Third Circuit and the Attorney General, the Seventh Circuit held that IJs may exercise the Attorney General’s powers over immigration. On remand, the Board may consider whether 6 U.S.C. 271(b) and 557 transfer to the Secretary of Homeland Security all of the Attorney General’s discretionary powers under the immigration laws and may also address whether the power to grant a waiver of inadmissibility may be exercised only in favor of an alien who has yet to enter the United States. The Board must address and resolve those essential issues before the court can consider whether the disposition lies within the scope of the agency’s discretion. View "Baez-Sanchez v. Sessions" on Justia Law