Articles Posted in US Court of Appeals for the Seventh Circuit

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Doe, an Iranian national, sought conditional permanent residency using the EB-5 admission category, which offers visas for immigrants who invest in new job-creating enterprises. The U.S. Citizenship and Immigration Service (USCIS) initially approved Doe’s petition but revoked its approval two years later. The revocation notice identified material changes: USCIS discovered information that contradicted evidence in the record, that the project had moved, and that Doe had not provided a business plan or targeted employment area certification for the new location. The record contained no evidence that the center was under construction or would create 10 jobs. Doe sought judicial review under the Administrative Procedure Act. The district court concluded that Congress had stripped its jurisdiction to review discretionary revocations of visa petitions (8 U.S.C. 1252(a)(2)(B)(ii).) and dismissed Doe’s suit. The Seventh Circuit affirmed, rejecting an argument based on Musunuru v. Lynch (2016), in which the Seventh Circuit held that section 1252(a)(2)(B)(ii) does not preclude judicial review of purely procedural rulings during the adjudication of a visa petition. The Doe ruling was not procedural. Doe challenged the agency’s substantive decision-making and cannot evade a jurisdiction-stripping statute by repackaging his substantive complaints as procedural objections. “Taken to its logical conclusion, Doe’s approach would eviscerate 1252(a)(2)(B)(ii). Any petitioner dissatisfied with a final agency decision could secure judicial review by alleging that the agency committed a procedural violation by overlooking favorable evidence.” View "Doe v. McAleenan" on Justia Law

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Toure, a citizen of Mali, entered the U.S. on a tourist visa in January 2007. In June 2009, he married Wolfe, a U.S. citizen. Conditional on his marriage, he was granted permanent resident status. In September 2011, Toure and Wolfe filed a joint I‐751 petition to remove the conditions. After an interview, USCIS issued a Notice of Intent to Deny because the marriage seemed to have been motivated by immigration benefits; the two were living apart and could not answer basic questions about each other. USCIS terminated Toure's conditional permanent resident status. In removal proceedings, 8 U.S.C. 1227(a)(1)(D)(i), Toure conceded removability but said that he and Wolfe were still married and that they intended to proceed with the joint filing. He and Wolfe had actually been separated for several months. The IJ set the merits hearing for more than three years later. In December 2014, Toure and Wolfe divorced. Neither Toure nor his attorney informed the immigration court of this change in status. A month before the long‐scheduled removal hearing, Toure filed a new I‐751 petition, this time requesting a waiver of the joint‐filing requirement. At the hearing, he requested a continuance to allow USCIS time to adjudicate that petition and waiver request. The IJ and BIA rejected his request. The Seventh Circuit denied a petition for review. Toure’s hope that USCIS would grant his waiver was speculative at best and he did not diligently pursue his collateral remedy. View "Toure v. Barr" on Justia Law

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Najera-Rodriguez, a 30-year-old lawful permanent resident, moved from Mexico to the U.S. when he was 10 years old. In 2016, based on possession of Xanax pills without a prescription, he pleaded guilty to unlawful possession of a controlled substance and was sentenced to two years of probation, community service, alcohol and drug treatment, educational requirements, and court fines. In removal proceedings under 8 U.S.C. 1227(a)(2)(B)(i), Najera-Rodriguez argued that his Illinois conviction under 720 ILCS 570/402(c) did not qualify as a conviction under a law “relating to a controlled substance” as defined in under 21 U.S.C. 802. Both the immigration judge and the BIA ruled against him and ordered him removed. The Seventh Circuit vacated the removal order. The Illinois law covers many different substances, some of which are not included in the federal law, and many types of conduct; it is not “divisible” for purposes of applying the “modified categorical approach,” so Najera-Rodriguez’s conviction does not render him removable. View "Najera-Rodriguez v. Barr" on Justia Law

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Ortiz-Santiago, a Mexican citizen, has continuously resided in the U.S. without legal status since 1999. In 2015, he was arrested for driving without a license. He was served with a “Notice to Appear” for removal proceedings, 8 U.S.C. 1229(a), that did not include a time or date for Ortiz-Santiago’s hearing but referred to a date and time “to be set.” This omission violated 8 U.S.C. 1229(a)(1)(G)(i). Shortly thereafter, the Immigration Court sent Ortiz-Santiago a “Notice of Hearing,” setting his hearing for November 12, 2015 at 10:30 a.m. In 2006, the Seventh Circuit expressly approved this two-step procedure. During proceedings before the Immigration Judge in August 2016, Ortiz-Santiago sought cancellation of removal. The IJ found that Ortiz-Santiago failed to show the requisite hardship to his stepfather or his own good moral character. While his appeal was pending, the Supreme Court decided "Pereira," which held that a Notice that lacked the statutorily-required time-and-date information did not trigger the stop-time rule, which dictates the end-point of the non-citizen’s qualifying U.S. residence for certain immigration benefits. The Court stated that “[a] document that fails to include such information is not a ‘notice to appear under section 1229(a).” The BIA denied Ortiz-Santiago’s motion to remand and affirmed. The Seventh Circuit denied his petition for review, rejecting an argument that the Notice was so defective that it did not establish the Immigration Court’s jurisdiction. The Notice was procedurally defective, but the omission is not “jurisdictional.” View "Ortiz-Santiago v. Barr" on Justia Law

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Villa, a citizen of Mexico, originally entered the U.S. in 1988 without inspection. He adjusted his status to that of a lawful permanent resident in 1995. Approximately nine years later, he was convicted of possession of cocaine and sentenced to a year in prison. In 2005, the Department of Homeland Security (DHS) initiated removal proceedings under 8 U.S.C. 1227(a)(2)(A)(iii) because he had been convicted of an aggravated felony. The Notice listed an address for the hearing “on a date to be set,” and “at a time to be set.” The Immigration Court later served on him a Notice of the date and time. He appeared; the immigration judge entered an order of removal. Villa waived his right to appeal and was removed to Mexico. He reentered the U.S. sometime in 2007, on foot at an unspecified location. In 2018, DHS served him with a Notice of Intent/Decision to Reinstate Prior Order of Removal, 8 U.S.C. 1231(a)(5), which stated that Villa could contest the determination that he was removable under the prior order by oral or written statement but that he was not entitled to a hearing. The Seventh Circuit dismissed his petition for review for lack of jurisdiction, rejecting an argument that the 2005 Order was void because it was entered ultra vires and that the 2005 proceedings were never properly initiated because the original “Notice” was legally deficient. View "Serrano v. Barr" on Justia Law

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Lopez-Aguilar went to the Indianapolis Marion County Courthouse for a hearing on a misdemeanor complaint charging him with driving without a license. Officers of the Sheriff’s Department informed him that an ICE officer had come to the courthouse earlier that day looking for him. He alleges that Sergeant Davis took him into custody. Later that day, Lopez-Aguilar appeared in traffic court and resolved his misdemeanor charge with no sentence of incarceration. Sergeant Davis nevertheless took Lopez-Aguilar into custody. He was transferred to ICE the next day. Neither federal nor state authorities charged Lopez-Aguilar with a crime; he did not appear before a judicial officer. ICE subsequently released him on his own recognizance. An unspecified “immigration case” against Lopez-Aguilar was pending when he sued county officials under 42 U.S.C. 1983. Following discovery, the parties settled the case. The district court approved the Stipulated Judgment over the objection of the federal government and denied Indiana’s motion to intervene to appeal. The Seventh Circuit reversed. The state’s motion to intervene was timely and fulfilled the necessary conditions for intervention of right. The district court was without jurisdiction to enter prospective injunctive relief. The Stipulated Judgment interferes directly and substantially with the use of state police power to cooperate with the federal government in the enforcement of immigration laws. View "Lopez-Aguilar v. Indiana" on Justia Law

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Carrillo was involved in an extramarital relationship with Noeller. Carrillo’s family reported that Noeller called Carrillo, accused her of seeing someone else, and threatened her life; Noeller later came to her mother’s Mexico City house, where he shot and killed her. Noeller maintains that he ended their relationship after finding out about her family’s affiliation with the Los Pepes gang and Zetas drug cartel. He says that after the murder, he received warnings that Carrillo’s mother had hired hitmen to kill him. Noeller fled for the U.S. with his wife and children, who are U.S. citizens. Noeller's family members provided affidavits describing incidents after he left, in which gang members came to their homes looking for Noeller, threatened them, and beat them. During removal proceedings, 8 U.S.C. 1182(a)(6)(A)(i), Noeller sought asylum, withholding of removal, and protection under the Convention Against Torture. Immigration judges twice denied his applications. Noeller’s BIA appeal was pending when Mexico submitted its extradition request. Noeller challenged the warrant issued in Mexico by an “Amparo proceeding,” which is “similar to habeas corpus ... to review and annul unconstitutional judicial decisions.” Noeller claims that the court in Mexico suspended the warrant. Mexico’s government contends that the original arrest warrant remains enforceable. The district court granted extradition. Noeller sought habeas corpus relief. The Seventh Circuit affirmed the denial of relief. Mexico submitted a valid request for extradition, which U.S. courts must honor. Noeller’s challenges to that request are “beyond the narrow role for courts in the extradition process.” View "Noeller v. Wojdylo" on Justia Law

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Ruano’s persecution in Mexico began after he refused to allow the local drug cartel leader to “possess” his wife. The cartel kidnapped, tortured, and threatened to kill Ruano. Ruano’s children were U.S. citizens, having been born while Ruano and his wife were legally living in the U.S. The cartel terrorizes communities throughout Mexico and exercises influence at all levels of the Mexican government. Ruano and his wife tried to continue living in Mexico. Their attempts failed, in brutal ways. On the advice of a Mexican prosecutor, Ruano and his wife and children fled to the U.S. and surrendered themselves at the border. Ruano applied for asylum, withholding of removal, and protection under the Convention Against Torture. An immigration judge found that Ruano was credible and that he would likely be tortured if he returned to Mexico and granted relief under the Convention Against Torture but denied his petition for asylum on the ground that Ruano did not show a nexus between his persecution and membership in a “particular social group,” 8 U.S.C. 1158(b)(1)(B)(i). The BIA agreed. The Seventh Circuit remanded, stating that the record compels a finding that the torture and persecution Ruano suffered in the past and fears in the future were and would be because of his membership in the “particular social group” of his wife’s family. View "Ruano v. Barr" on Justia Law

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In 1998, Garcia-Martinez pleaded guilty to assault with a deadly weapon under N.J.S. 2C:12-1(b)(2). According to his plea colloquy, Garcia-Martinez’s role was minor: he stuck out his foot to trip the victim. Once the victim was on the ground, Garcia-Martinez’s friends “jumped on [the victim] and started hitting him” and “some of [Garcia-Martinez’s] friends punched [the victim], kicked him and struck him.” Garcia-Martinez stood by during their assault; he soon left the scene. The Board of Immigration Appeals has found in the past that “assault with a deadly weapon” is a generic crime of moral turpitude that makes a noncitizen ineligible for cancellation of removal, 8 U.S.C. 1182(a)(2)(A)(i)(I). The Board found that there was no realistic probability that the New Jersey law could be applied to conduct outside the scope of the generic crime and concluded that Garcia-Martinez’s conviction was for a crime involving moral turpitude. The Seventh Circuit granted a petition for review and remanded. Although the New Jersey statute appears to fit the generic definition of assault with a deadly weapon, only some of the conduct covered by the statute appears to be sufficiently vile, base, immoral, or depraved to deserve the label moral turpitude. The Board speculated about the type of weapon that Garcia-Martinez’s accomplices may have possessed and did not explain why the generic definition of assault with a deadly weapon includes tripping. View "Garcia-Martinez v. Barr" on Justia Law

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Herrera-Garcia, a citizen of El Salvador, entered the U.S. illegally in 1990. In 2016, DHS initiated removal proceedings under 8 U.S.C. 1229a, alleging that he was convicted of a crime of moral turpitude. Herrera-Garcia sought asylum, withholding of removal, and relief under the Convention Against Torture, testifying that when he was nine years old, guerrillas stopped him about every three weeks to get information about neighbors who might be working for the military; he never saw the guerillas with guns. Herrera-Garcia also testified that several of his friends were forced to join the military and that his fear of living in El Salvador is worse today than it was 27 years ago because of the number of gangs and kidnappings there. His parents testified that they worry about El Salvadoran gangs kidnapping him for ransom given his American accent. The IJ found Herrera-Garcia removable and denied his applications for relief; the BIA affirmed. He unsuccessfully sought reconsideration, citing a new Supreme Court decision, Pereira v. Sessions. Pereira held that a notice to appear that fails to specify the time or place of a removal hearing does not trigger the “stop-time rule” for purposes of cancellation of removal. Herrera-Garcia argued that Pereira should be extended outside the context of the stop-time rule to preclude the agency’s jurisdiction over his proceedings. The Seventh Circuit denied his petition. Herrera-Garcia provided no evidence of past torture or persecution and did not show that he, specifically, would be in danger in El Salvador or that the government would have inflicted or allowed torture. View "Herrera-Garcia v. Barr" on Justia Law