Articles Posted in US Court of Appeals for the Sixth Circuit

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Petitioner, a citizen of the United Kingdom and a lawful U.S. permanent resident, was convicted of two counts of rape in 2011 under Ohio law. He was charged as removable for being convicted of an aggravated felony under 8 U.S.C. 1227(a)(2)(A)(iii), which lists rape as an aggravated felony, but it does not define the term. An IJ found held that Petitioner was removable without eligibility for relief. Petitioner argued in his appeal to the BIA that his Ohio conviction is not an aggravated felony because Ohio’s definition of rape includes digital penetration, whereas the federal law does not. The BIA disagreed. The Sixth Circuit reversed, noting that the Fifth Circuit and the BIA previously considered this question. The BIA reversed course in Petitioner’s case. A conviction for rape in Ohio can be committed by digital penetration, whereas the aggravated felony of rape under the Immigration and Nationality Act cannot; the Ohio conviction does not categorically fit within the federal definition, and Petitioner’s conviction is not an aggravated felony. View "Keeley v. Whitaker" on Justia Law

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Hernandez-Perez, a Mexican citizen, has lived in the U.S. since 2000. His daughter, L., is a 17-year-old U.S. citizen. Hernandez-Perez has some criminal history, mostly “misdemeanor traffic offenses” but has maintained steady employment despite a handicap. In 2011, Hernandez-Perez was placed in removal proceedings and sought cancellation of removal under 8 U.S.C. 1229b(b)(1)(D), arguing that, if he were removed, L. would face “permanent family separation.” After that application was denied, Hernandez-Perez, alleged his family circumstances changed because he learned that an eight-year-old U.S. citizen, A.W., whose mother is not his wife, might be his son. A.W.’s mother was incarcerated and his grandfather, who had custody, was seriously ill. Hernandez-Perez had a DNA test performed, which confirmed the relationship. He filed a motion to reopen based on hardship to A.W. The BIA denied the motion because Hernandez-Perez had not established that the new evidence was previously unavailable, and the evidence did not establish prima facie eligibility for cancellation of removal. The Sixth Circuit granted a petition for review and remanded, first holding that it had jurisdiction because the motion “raised a new hardship ground not decided in the original decision.” Because the BIA must accept as true Hernandez-Perez’s allegations, there is no reasonable basis to conclude that the genetic evidence could have been obtained in 2015. The BIA erred in determining that the newly submitted evidence was previously available and did not consider all of the facts. View "Hernandez-Perez v. Whitaker" on Justia Law

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Veloz-Alonso, a citizen of Mexico, entered the U.S. illegally in the 1990s. He was removed in 1997, 1999, and 2008. In 2018, Veloz-Alonso was discovered again and was indicted for illegal reentry. He pleaded guilty and sought release on bail pending sentencing. Under the Bail Reform Act (BRA), a defendant pleading guilty must be detained unless the court finds by clear and convincing evidence that he is not a flight risk or a danger to the community, 18 U.S.C. 3143(a)(1). The government argued that Veloz-Alonso was subject to an order of removal and an ICE detainer, so that, if released, he would be taken into custody, removed, and unable to attend a sentencing hearing. The court granted the motion subject to electronic monitoring and a property lien on his house. The court ordered the government, under threat of contempt, “to refrain from detaining or deporting the Defendant while he is released pending sentencing.” The Sixth Circuit reversed. While deportable aliens are not per se ineligible for bail, the district court incorrectly inferred that an alien released on bail is ineligible for ICE detention. Reading the BRA’s permissive use of release to supersede the Immigration and Naturalization Act’s mandatory detention would be incongruent with canons of statutory interpretation. To the extent that ICE may fulfill its statutory mandates without impairing the purpose of the BRA, there is no statutory conflict. View "United States v. Veloz-Alonso" on Justia Law

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Petitioner, a citizen of Poland, is married to a lawful U.S. permanent resident; their son is a U.S. citizen. Petitioner last entered the U.S., to remain, in 1999. In 2016, DHS charged Petitioner under 8 U.S.C 1182(a)(6)(A)(i) as an alien present without being admitted or paroled. Petitioner sought cancellation of removal. An IJ denied Petitioner’s application, finding that Petitioner was a “habitual drunkard” under 8 U.S.C. 1101(f)(1) and unable to prove that he was a person of “good moral character” during the 10-year period before his application, 8 U.S.C. 1229b(b)(1). The IJ relied on evidence that Petitioner had been convicted five times for drunk driving and once as a “Disorderly Person” related to being drunk in public. Three of the DUI convictions fell outside the 10-year period. The IJ cited Petitioner’s high blood alcohol levels at the time of his arrests as evidence of Petitioner’s high tolerance, and testimony that he was an alcoholic. Petitioner had also been confined in a penal institution for longer than allowed by 8 U.S.C. 1101(f)(7). The BIA dismissed Petitioner’s appeal. The Sixth Circuit denied a petition for review. Because Petitioner is a deportable alien with an interest only in discretionary relief, he may not bring a void-for-vagueness challenge to the “habitual drunkard” provision under the Due Process Clause. Rejecting an equal protection claim, the court stated that there is a rational basis for saying that a “habitual drunkard” lacks “good moral character.” View "Tomaszczuk v. Whitaker" on Justia Law

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Preçetaj, a citizen of Albania, entered the U.S. without admission in 2000 and filed her first asylum application, averring that “criminal gangs constantly threaten [her] family,” and, “though [her] father is not politically involved, he is a target because he is employed by the highway department.” She attested that she was afraid of being kidnapped and placed into forced prostitution. In 2005, an IJ denied Preçetaj’s application and ordered her removal, finding Preçetaj incredible because her claim “devolved over a period of time.” The BIA affirmed; the Sixth Circuit denied review. In 2012, Preçetaj moved to reopen. The BIA denied the motion. The Sixth Circuit denied review. In 2017, Preçetaj filed another motion to reopen, arguing that “country conditions in Albania have changed . . . since a recent Socialist Party victory at the polls,” and that recently, “her family has been threatened with government persecution” and is a “distinct social group.” Preçetaj appended a psychological report about her children; an updated I-589 Statement; and an affidavit from her expert witness, detailing Albania’s political history and internal violence. The Sixth Circuit remanded the BIA’s denial. The BIA failed to demonstrate that it evaluated or analyzed Preçetaj's evidence but summarily concluded that the evidence was insufficient to demonstrate changed country conditions, without providing a sufficiently detailed analysis for its conclusion. View "Precetaj v. Sessions" on Justia Law

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Rodriguez-Penton moved from Cuba to the U.S. when he was 15. He is a lawful permanent resident. Rodriguez-Penton was indicted for conspiracy to distribute and possess Oxycodone, retained counsel Butler, and initially cooperated but stopped because he feared for his family’s safety. The government offered Rodriguez-Penton plea deals but he entered an open guilty plea. Rodriguez-Penton’s Cuban citizenship arose during the hearing: the court stated that there was no need to review the civil rights one forfeits by pleading guilty; inquired whether, due to Rodriguez-Penton’s citizenship, there would be an early sentencing; and asked about an Immigration and Customs Enforcement detainer, but did not advise Rodriguez-Penton that pleading guilty might have adverse immigration consequences and sentenced him to a 121-month prison term. Rodriguez-Penton alleges that he learned of the deportation risk after sentencing, during a meeting with his prison counselor. Rodriguez-Penton appealed, represented by Butler, arguing that his plea was not knowing and voluntary. After hearing testimony from Butler and an interpreter, a magistrate concluded that Butler merely told Rodriguez-Penton that he did not have to worry about deportation. Rodriguez-Penton testified unequivocally that he “would not have gone to trial, even if he could not have negotiated a better plea arrangement.” The district court dismissed his 28 U.S.C. 2255 motion. The Sixth Circuit reversed. The legal standard for ineffective assistance of counsel claims has changed in the context of non-citizens faced with criminal charges. Rodriguez-Penton asserted that his decision-making process would have been different if he had been properly advised; the government has not offered any countervailing evidence that Rodriguez-Penton could not have secured a more favorable plea. View "Rodriguez-Penton v. United States" on Justia Law

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A Lebanese citizen, Al-Saka married Hashem, a U.S. citizen, in Beirut in 1999. He entered the U.S. in 2001 as a conditional permanent resident based on his marriage to Hashem continuing for at least two years. Just weeks later, the couple signed a religious divorce. In August 2001, the Lebanese government granted a legal divorce. Two months later, Michigan annulled the marriage at Hashem’s request after finding that “there had been no marital cohabitation.” In 2003, Al-Saka married another woman in Lebanon and took steps to remove the permanent-residence condition. Because he had divorced Hashem, he could not file a joint petition with her, as the law requires, 8 U.S.C. 1186a(c)–(d). He instead claimed that deportation would cause hardship and that he married Hashem in good faith. An UJ found that Al-Saka and Hashem did not marry in good faith, and refused to waive the joint-petition requirement. She rejected his hardship claim on the ground that his family remained in Lebanon. The BIA affirmed. The Sixth Circuit denied Al-Saka’s petition for relief, noting substantial evidence that his first marriage was not in good faith and rejecting a claim of ineffective assistance of counsel. View "Al-Saka v. Sessions" on Justia Law

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Raja, a citizen of Pakistan, first entered the U.S. in 1990 without inspection. In 1996, Raja pleaded guilty to possession with intent to deliver a controlled substance and was sentenced to three-23.5 months’ imprisonment. He served 90 days in a Pennsylvania prison. Nonetheless, in 1998, Raja was granted lawful-permanent-resident status. In 2007, Raja traveled to Pakistan to visit his family. Upon his return, he was detained after officials discovered his conviction. Raja admitted to the conviction and to providing a fraudulent Social Security number to the officers at the time of his 1995 arrest. The government initiated removal proceedings under 8 U.S.C. 1182(a)(2)(A)(i)(II). An IJ found Raja removable for a controlled-substance offense and ineligible for a waiver of inadmissibility because he had never lawfully adjusted to lawful-permanent-resident status due to his prior conviction. The BIA dismissed Raja’s appeal. The Sixth Circuit denied relief, finding the Pennsylvania statute under which Raja was convicted divisible; the portion of the statute under which he was charged is a categorical match to 21 U.S.C. 1182(a)(2)(A)(i)(II) and is a controlled substance offense under 8 U.S.C. 1182(a)(2)(A)(i)(II) under the “modified categorical approach.” View "Raja v. Sessions" on Justia Law

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Petitioner's parents, Sunni Muslims, fled Syria before he was born to escape the al-Assad regime. Petitioner was born in Iraq and lived in Yemen. Petitioner obtained a bachelor’s degree in engineering. In 2011, Petitioner entered Turkey using a Syrian passport, obtained by his father. Petitioner's cousin, Alhaider, a U.S.-born teacher, traveled to Turkey. They became engaged. Petitioner obtained a new passport through his father, who would not divulge how he obtained it. The passport was actually a stolen blank Syrian passport, to which Petitioner’s information was added. Petitioner obtained a fiancé visa, 8 U.S.C. 1184(d), and traveled the U.S. He and Alhaider were married. Petitioner became a conditional permanent resident. DHS learned that Petitioner might have entered the U.S. using a stolen blank passport. Petitioner was charged as removable under 8 U.S.C. 1227(a)(1)(A), An IJ granted Petitioner a waiver of removal under 8 U.S.C. 1227(a)(1)(H), asylum, and withholding of removal. The BIA affirmed the grant of withholding but concluded that Petitioner was not entitled to asylum or to the waiver. The Sixth Circuit held that the Board unreasonably applied its own binding precedent, which dictates that asylum may not be denied solely due to violations of proper immigration procedures; the danger of persecution should outweigh all but the most egregious countervailing factors. Courts generally lack jurisdiction to review discretionary determinations such as the denial of a waiver but the BIA engaged in de novo review of the IJ’s factual findings, in violation of its regulatory obligation to review those findings only for clear error. View "Hussam F. v. Sessions" on Justia Law

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Shabo immigrated to the U.S. in 1985. In 1992, at the age of 25, he was convicted of an aggravated felony: possession with the intent to deliver 50-225 grams of cocaine. He served 60 months of imprisonment. An immigration judge ordered his removal to Iraq based on his conviction for an aggravated felony and a crime relating to a controlled substance. The BIA denied his appeal. Because the Iraqi government was not issuing travel papers, Shabo remained in the U.S. Iraq began issuing travel papers last year. Shabo moved to reopen his 1998 BIA proceedings to seek protection under the Convention Against Torture, claiming that, as a Chaldean Christian, he faces likely torture in Iraq. He concedes that he is deportable under 8 U.S.C. 1227(a)(2)(A)(iii) and (B)(i). He argued that the circumstances in Iraq have changed considerably since 1997 when the IJ ordered his removal. The BIA found his petition untimely; that the changed-country-conditions exception does not apply to Convention Against Torture applications; and that Shabo had not presented sufficient evidence that he was “more likely than not” to be subject to torture. The Sixth Circuit dismissed his appeal, citing 8 U.S.C. 1252(a)(2)(C): “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D)” unless the matter involves constitutional claims or questions of law. View "Shabo v. Sessions" on Justia Law