Articles Posted in US Court of Appeals for the Seventh Circuit

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Yafai and Ahmed were born, raised, and married in Yemen. Yafai became a naturalized U.S. citizen in 2001 and successfully filed I‐130 petitions on behalf of his wife and several of their children. Ahmed and her children subsequently applied for visas. The consular officer denied Ahmed’s visa application, citing 8 U.S.C. 1182(a)(6)(E), which provides that “[a]ny alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.” The denial stated that she attempted to smuggle two children into the U.S. using the identities Yaqub and Khaled. Yafai and Ahmed apparently argued that Ahmed could not be guilty of smuggling, because the children whom she had allegedly smuggled were deceased. Ahmed provided: vaccination records, Khaled’s school records, hospital bills, hospital birth records, the police report from the drowning accident, Khaled’s passport, and family photos. An embassy fraud prevention manager found the their testimony not credible and initiated an investigation. Several months later, the consular officer reaffirmed the prior visa denial. The Seventh Circuit affirmed the dismissal of a suit by Yafai and Ahment. The decision is facially legitimate and bona fide, so the doctrine of consular nonreviewability applies. View "Yafai v. Pompeo" on Justia Law

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Beltran-Aguilar, a citizen of Mexico, applied for cancellation of removal. The BIA affirmed the denial of his application. The Seventh Circuit denied a petition for review. Beltran-Aguilar’s conviction for Wisconsin battery involving domestic abuse was a crime of domestic violence, rendering him ineligible for cancellation of removal under 8 U.S.C. 1229b(b)(1)(C). A “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,” 18 U.S.C. 16(a). The elements of the crime for which a defendant was convicted, not his underlying conduct, are determinative. Beltran-Aguilar was convicted under Wisconsin Statute 940.19(1), which prohibits “caus[ing] bodily harm to another by an act done with intent to cause bodily harm to that person or another without the consent of the person so harmed.” “Bodily harm” means “physical pain or injury, illness, or any impairment of physical condition.” Rejecting an argument that certain types of non-qualifying conduct theoretically might be prosecuted under the statute, the court stated that there must be “a realistic probability, not a theoretical possibility," that the state would prosecute conduct that falls outside the generic definition of a crime. Beltran-Aguilar has not identified any case in which Wisconsin’s definition of “bodily harm” has been applied in a way that does not accord with precedent defining crimes of violence. View "Beltran-Aguilar v. Whitaker" on Justia Law

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In 2001, Plaza-Ramirez entered the U.S. from Mexico without inspection or admission. In 2010, he was apprehended by Border Patrol agents. He sought asylum, withholding of removal, and protection under the Convention Against Torture, citing an attack he suffered in 1999 at a dance club in his hometown in Mexico. He was followed into the restroom by Los Negros gang members, who, mistakenly thinking he was affiliated with his cousin’s rival gang, beat him with a metal pipe. They subsequently threatened him repeatedly but did not attack him again. Afraid of retaliation, he never filed any police reports. Plaza-Ramirez argued that he was targeted because he is a member of a particular social group: his own family (8 U.S.C. 1101(a)(42)(A)). The IJ denied relief. The asylum claim was untimely because Plaza-Ramirez did not apply until over a decade after his first year of entry, 8 U.S.C. 1158(a)(2)(B). Plaza-Ramirez had failed to show that the 1999 attack occurred because of his family membership, and the attack did not rise to the level of persecution. The BIA affirmed, finding that Plaza-Ramirez failed to show sufficient persecution and failed to show any nexus between the 1999 attack and his membership in a particular social group. The Seventh Circuit denied a petition for review, finding the denials supported by substantial evidence. View "Plaza-Ramirez v. Sessions" on Justia Law

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In 1991, Molina-Avila, born in Guatemala and then 11 years old, came to the U.S. with his sister and brother. He became a legal permanent resident the same year. As a young adult, he was convicted of three drug offenses under Illinois law. DHS initiated removal proceedings. Molina-Avila requested deferral of removal because he feared torture by Guatemalan gangs. His brother had been deported to Guatemala in 1998 and experienced violent harassment by a Guatemalan gang, the Mara 18. Molina-Avila believes the harassment occurred because his brother was perceived as a wealthy former-American. The IJ and BIA denied relief. The Seventh Circuit affirmed the decision as supported by substantial evidence. Molina-Avila relied on generalized evidence in arguing his tattoos and perceived wealth would inevitably result in torture and the record did not compel the conclusion that the police force is unwilling or unable to investigate gang violence nor did it compel the conclusion that safe relocation within Guatemala would be impossible. View "Avila v. Sessions" on Justia Law

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Alvarenga-Flores, apprehended crossing the U.S. border, gave a “credible fear” interview while he was detained, stating that he was afraid to return to El Salvador, where he is a citizen, because after witnessing a friend's murder, he received threats from the gang members responsible. Alvarenga applied for asylum, withholding of removal, and protection under the Convention Against Torture. The IJ denied all of relief based on an adverse credibility finding; he also found that Alvarenga’s asylum application was time-barred. The IJ cited inconsistencies in Alvarenga’s testimony about his escapes from gang members who attacked him in a taxi and from gang members who approached him on a bus. Alvarenga had submitted affidavits from his parents; both were written in English, although neither parent speaks English. Alvarenga’s parents lacked firsthand knowledge of the events and “restate[d] things that they can only have heard from [Alvarenga].” The IJ further noted that Alvarenga’s parents could have testified telephonically but did not. The BIA found the discrepancies sufficient to sustain an adverse credibility finding, 8 U.S.C. 1229a(c)(4)(C). The BIA affirmed. The Seventh Circuit denied a petition for review. Substantial evidence supports the decisions of the immigration judge and the Board, and the record does not compel a contrary conclusion. View "Alvarenga-Flores v. Sessions" on Justia Law

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In 2015, tattooed members of the Mara 18 gang, having previously abducted his brother, held a gun to W.G.A.’s head and threatened to kill him. With its rival, MS‐13, Mara 18 terrorizes the Salvadoran population and government. The gangs have orchestrated labor strikes and plotted to bomb government buildings. They brag about influencing elections and controlling political campaigns. They extort millions of dollars from businesses and are largely responsible for El Salvador’s homicide rate. Days after the threat, W.G.A. fled to the U.S. DHS apprehended him and began removal proceedings. W.G.A. applied for asylum, statutory withholding of removal, and deferral of removal under the Convention Against Torture, arguing that the gang would kill him if he returned to El Salvador. The IJ denied his applications. The BIA dismissed an appeal. The Seventh Circuit granted W.G.A.’s petition for review and remanded. W.G.A. established persecution based on his membership in a qualifying social group--family members of tattooed former Salvadoran gang members. Country reports and news articles throughout the record demonstrate widespread recognition that Salvadoran gangs target families to enforce their orders and discourage defection. The IJ and BIA did not address the extensive record, describing how corruption, judges’ refusal to protect witness anonymity, and the police’s fear of reprisal, allow gangs to act with impunity. View "W.G.A. v. Sessions" on Justia Law

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Rivas-Pena, now 44 years old, entered the U.S. as a lawful permanent resident in 1996. He was convicted of drug-related crimes in 1997 and 2017. For the 2017 conviction for possession of cocaine with intent to distribute, he was sentenced to eight years in prison. He was released on parole the same day that he was sentenced because he had accumulated substantial good-time credit during three and a half years of pretrial detention. Charged with removability based on his convictions for a controlled substance offense, 8 U.S.C. 1227(a)(2)(B)(i), and an aggravated felony, section 1227(a)(2)(A)(iii), Rivas-Pena applied for deferral of removal under the Convention Against Torture, 8 C.F.R. 1208.17 based on his fear of torture by Los Zetas cartel. Rivas-Pena estimates that he “owes” the cartel $500,000 because of the seizure of cartel contraband from his garage and fears that cartel members will infer from his "lenient sentence" that he cooperated with authorities. The IJ denied Rivas-Pena’s application, finding Rivas-Pena’s fears “speculative” because no cartel member has attempted to harm Rivas-Pena or his family. The Seventh Circuit granted a petition for review and remanded because neither the immigration judge nor the BIA articulated any basis for disagreeing with an expert opinion that corroborates Rivas-Pena’s fear of torture. View "Rivas-Pena v. Sessions" on Justia Law

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Bijan, a citizen of Iraq, entered the U.S. in 2004, ostensibly as the unmarried son of a lawful permanent resident. In 2006, Bijan traveled to Jordan, where the mother of his children, Shaoul, still lived. According to Bijan, the two were then married. Upon returning to the U.S. that same year, Bijan filed I‐130 petitions for his children. USCIS denied these applications because Bijan had made conflicting statements in communications with the agency and had not previously identified his children on his 2003 visa application. The children were born in 1997 and 1999. In 2009, Bijan applied to become a naturalized citizen. USCIS denied his application, concluding that Bijan actually had been married when he entered the country and had misrepresented his eligibility for lawful permanent residence and citizenship. The district court concluded that Bijan had misrepresented his marital status and lied under oath during a naturalization interview when he denied giving “false or misleading information” while applying for an immigration benefit. The Seventh Circuit affirmed on the alternate ground that Bijan previously had given the agency false information when he failed to disclose on his visa application that he had two children and later lied about that omission. View "Bijan v. United States Citizenship & Immigrations Services" on Justia Law

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Galindo, a lawful permanent U.S. resident, had Kentucky convictions for possession of drug paraphernalia and was charged with removability under 8 U.S.C. 1227(a)(2)(B)(i). The IJ applied the categorical approach, under which an alien’s state conviction renders him removable if it “necessarily establishe[s]” a violation of federal law and the modified categorical approach, which applies if a divisible statute proscribes multiple types of conduct, some of which would constitute a removable offense. If a statute is divisible, a court may consult a limited class of documents to determine which alternative formed the basis of the conviction. The IJ determined that Galindo was not removable under the categorical approach because the Kentucky statute criminalizes paraphernalia for drugs that are not proscribed by federal law and that the modified categorical approach does not apply because the paraphernalia statute is not divisible, then terminated the removal proceedings. The BIA reversed, finding no “realistic probability” that Galindo’s conviction involved those drugs, and purported to enter a removal order. The Seventh Circuit vacated. While courts lack jurisdiction to review the BIA determination that the drug-paraphernalia convictions qualify as controlled-substance offenses and may review only a “final order of removal,” 8 U.S.C. 1252, they may vacate based on clear legal error. In this case, the IJ never made the requisite finding of removability; the Board lacked the authority to issue a removal order. View "Galindo v. Sessions" on Justia Law

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Sembhi, a citizen of India, entered the U.S. in 1995 and overstayed his non-immigrant visa. Two years later, after he unsuccessfully sought asylum, Sembhi was charged as removable. Sembhi expected to obtain an I-130 visa based on his marriage to a U.S. citizen but when Sembhi appeared for a hearing in 2001, his counsel reported that his wife had obtained a default divorce. Sembhi’s counsel, Burton, indicated that Sembhi intended to explore vacating the divorce or cancellation of removal as an allegedly battered spouse or voluntary departure. The judge continued the matter. At the continued hearing Burton was present but Sembhi was not. Burton stated that he had not communicated with Sembhi in weeks despite attempts to contact him. Agreeing that Sembhi had received notice, the judge ordered Sembhi removed. More than 10 years later, Sembhi, represented by attorney Carbide, moved to reopen, blaming Burton for his failure to appear--an “exceptional circumstance.” The IJ denied Sembhi’s request. The BIA dismissed an appeal. Sembhi then acknowledged that his attorney had informed him orally of the hearing date but stated that he misunderstood the date. Before he filed this second motion, Sembhi had been married to another U.S. citizen for more than 10 years; his I-130 visa petition had been approved. After five adverse BIA decisions, Sembhi’s petition for review was denied by the Seventh Circuit. His fifth motion was late and numerically barred, 8 U.S.C. 1229a(c)(7)(A); Sembhi is not entitled to equitable tolling of those limitations. View "Sembhi v. Sessions" on Justia Law