Justia Immigration Law Opinion Summaries

Articles Posted in US Court of Appeals for the Sixth Circuit
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In 2001, Flores-Perez was detained on the belief that he was in the country illegally. Flores-Perez produced two forms of state-issued identification, each containing his address. Officials served Flores-Perez with a Notice to Appear (NTA), alleging that Flores-Perez was a citizen of Mexico who had illegally entered the U.S. Immigration officials wrote an incorrect address—Apartment 132—on the NTA, which Flores-Perez nonetheless signed. No interpreter assisted with the initial processing. As Flores-Perez left, he was given several relevant documents, including a copy of the NTA he had signed, and told, in Spanish, that he would receive another document in the mail. The immigration court sent a Notice of Hearing to the incorrect address; it was returned because “no such number” existed. When Flores-Perez did not attend the hearing, the IJ proceeded in absentia and ordered Flores-Perez removed. The removal order was also returned. In 2009, immigration officials arrested Flores-Perez and deported him days later. Flores-Perez unlawfully returned to the U.S. that year.In 2018, he was arrested while attempting to break into an apartment and charged with reentry after deportation, 8 U.S.C. 1326(a). Flores-Perez argued that his indictment should be dismissed because he did not receive adequate notice of his 2003 removal hearing. The Sixth Circuit affirmed the rejection of his claims for failure to exhaust administrative remedies. Flores-Perez failed to challenge his removal order until filing this collateral challenge, nearly 20 years later, and after he was deported due. View "United States v. Flores-Perez" on Justia Law

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In 1994, Ahmed and Wahasi allegedly were married. Ahmed lives in the U.S. as a lawful permanent resident. Wahasi and their sons, all Yemeni citizens, live in Malaysia. In 2008, Ahmed filed an I-130 petition on behalf of his wife and sons, which was approved. Ahmed’s wife and children visited the U.S. consulate in Yemen to apply for visas. Consular officials grew suspicious that they were not who they said they were, requested additional proof of identification, and placed the applications into “administrative processing.” In 2017, Presidential Proclamation 9645 made it more difficult for Yemeni nationals to receive visas to enter the U.S. Ahmed and his family joined a lawsuit that challenged the validity of the Proclamation and the way in which the government handled their visas. The U.S. Supreme Court upheld Proclamation 9645. The U.S. consulate denied the family’s visa applications due to lingering concerns about their identities and sent Ahmed’s I-130 petition to USCIS for “review and possible revocation.”Ahmed and his family moved to amend their complaint to challenge the visa denials and the potential revocation of Ahmed’s I-130 petition. The Sixth Circuit affirmed the dismissal of the complaint, stating it has no authority to second guess the visa decisions of the American consulate. Noncitizens living abroad do not have any American constitutional rights. American residents, whether citizens or legal residents, do not have a constitutional right to require the government to admit non-citizen family members. View "Baaghil v. Miller" on Justia Law

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Tobias-Chaves and her daughter traveled from Honduras and entered the U.S. in 2014, to escape from Tobias-Chaves’s abusive husband. DHS filed charges against them in Houston, where they were then living. That Immigration Court attempted to send Tobias-Chaves a Notice to Appear but because of a clerical error, she never received it. The court ordered the women removed in absentia. Two years later, Tobias-Chaves learned (and informed the courts) of the error. Her case was reopened in Houston. Tobias-Chaves applied for asylum. Her case was transferred to Memphis. There was then no immigration court in Louisville. An immigration court was created in Louisville in 2018, and the “Louisville docket” was transferred, including Tobias-Chaves’s case. There was no formal change of venue. Tobias-Chaves was not given an opportunity to dispute the change. The Louisville court held a hearing, at which her attorney argued that venue had never properly been transferred.The IJ denied Tobias-Chaves’s application for asylum and ordered her removed. The BIA affirmed, finding the “sua sponte change of venue” harmless error; Tobias-Chaves lived 75 miles from the Louisville location but more than 400 miles from the Memphis building. The Sixth Circuit affirmed. Although the court violated procedural rules in transferring the proceeding, that violation was a procedural question relating to venue, not jurisdiction. In order to successfully challenge a procedural error such as an improper change of venue, a petitioner must show prejudice. Tobias-Chaves failed to do so. View "Tobias-Chaves v. Garland" on Justia Law

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Garcia, a citizen of Mexico, entered the U.S. without inspection in 2000 and was placed in removal proceedings in 2011. Garcia sought Cancellation of Removal or voluntary departure in the alternative. In 2018, Garcia married a U.S. citizen, who filed an I-130 Petition for Alien Relative. An IJ denied Garcia’s request for a continuance pending adjudication of his I-130 petition, noting that even if USCIS approved his I-130 petition, Garcia would have to leave and be processed at the American consulate in Mexico because he had not been “admitted or paroled following inspection.” The IJ found Garcia ineligible for Cancellation of Removal but granted voluntary departure.While his BIA appeal was pending, USCIS approved Garcia's I-130 petition, which required Garcia, to travel to a U.S. consulate but by leaving the U.S., noncitizens who have been unlawfully present for more than one year become inadmissible for 10 years. The Attorney General may waive this bar for immigrant-spouses of U.S. citizens. USCIS could take over a year to process the waiver, during which a noncitizen remains abroad. USCIS amended its regulations in 2013 to permit applicants to apply for a provisional unlawful presence waiver before departing the U.S.; this workaround did not extend to noncitizens in removal proceedings, unless those proceedings are administratively closed. In 2018, then-Attorney General Sessions issued the “Castro-Tum” decision, holding that IJs and the BIA did not have general authority to grant administrative closure. The BIA, citing Castro-Tum, denied Garcia’s request for administrative closure and upheld the denial of Cancellation of Removal.The Sixth Circuit vacated. IJs and the BIA have the authority for administrative closure to permit noncitizens to seek provisional unlawful presence waivers. Administrative closure is “appropriate and necessary” for the disposition of Garcia’scase. View "Garcia-DeLeon v. Garland" on Justia Law

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Torres started working for Precision in 2011. He was not then legally authorized to work in the U.S. but obtained work authorization about five months later. Torres listed a fake Social Security number on a tax form when he started the job. In May 2012, Torres injured his back at work. Precision did not pay all of the doctor's bills. Torres pursued a workers’ compensation claim. After receiving a September 2011 call from Torres’s lawyer, supervisors confronted Torres. Torres recorded their threatening and profanity-laced statements. Torres was immediately terminated.Torres sued, claiming Precision violated Tennessee law by firing him in retaliation for making a workers’ compensation claim. The district court rejected the claim, citing the Immigration Reform and Control Act of 1986. On remand, the district court found Precision liable for retaliatory discharge and held that federal law did not preempt a damage award. The court awarded Torres backpay, compensatory damages for emotional distress, and punitive damages. The Sixth Circuit affirmed. Federal law makes it illegal to employ undocumented aliens, but Tennessee’s workers’ compensation law protects them. Because of federal law, the company cannot be required to pay lost wages that the alien was not allowed to earn; the employer is liable for wages the employee could have lawfully received, and for damages unrelated to the employee’s immigration status. View "Torres v. Precision Industries, Inc." on Justia Law

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Lopez, a citizen of Guatemala, entered the U.S. in the 1990s without admission or parole. In 2003, the government charged her with removability under 8 U.S.C. 1182(a)(6)(A)(i) and sent Lopez a Notice to Appear that contained a warning in English that if she failed to attend the hearing, the IJ could order her removal, and she might be arrested as a result. Lopez failed to appear at her removal hearing. The IJ ordered her removal in absentia. Immigration officials detained Lopez a few years later. In 2017, Lopez moved to reopen her removal proceedings, claiming that she was the derivative beneficiary of her husband’s pending application for protection under the Nicaraguan Adjustment and Central American Relief Act (NACARA).The IJ denied Lopez’s motion, finding Lopez’s NACARA-based claims untimely and that her motion failed to include required documents. The IJ also declined to exercise its discretionary authority to sua sponte reopen Lopez’s removal proceedings. The BIA affirmed, rejecting Lopez’s additional argument on appeal that the 2004 removal order should be rescinded because the Notice to Appear was delivered in English, not in her native language. The Seventh Circuit rejected a petition for review and dismissed, for lack of jurisdiction, Lopez’s challenge to the BIA’s decision not to sua sponte reopen her case under its discretionary authority, View "Lopez v. Garland" on Justia Law

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E.A., a citizen of El Salvador unlawfully entered the U.S. in 2016, at age 12, as an unaccompanied minor and was released to her mother, who resided in New York. Shortly thereafter, the family relocated to Arkansas, where E.A. filed a successful Motion to Change Venue to Memphis and a Change of Address Form. Latino Memphis (LM) represented E.A. pro bono. In January 2018. LM appeared on behalf of E.A. in a telephonic hearing. E.A.'s master-calendar hearing was scheduled for June 2018 in Memphis. In April 2018, LM moved to withdraw, stating that E.A. had moved out of its covered geographic area to New York. E.A. failed to appear and was ordered removed in absentia. In November, E.A., moved to reopen, represented by Catholic Charities. E.A. asserted that she was unable to obtain legal counsel to assist her in changing her hearing location after returning to New York. E.A.’s mother had given birth 10 days before E.A.’s hearing. E.A. asserted that she was eligible for Special Immigrant Juvenile Status (SIJS). The IJ denied E.A.’s request to reopen and did not address SIJS. The BIA affirmed.The Sixth Circuit vacated the removal order and remanded. Based on the totality of the circumstances, including E.A. mother’s recent childbirth, E.A.’s age, E.A.’s mother’s failed attempts to obtain counsel to help change the hearing address, and E.A.’s inability to travel alone for the hearing, E.A. established exceptional circumstances. View "E. A. C. A. v. Rosen" on Justia Law

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Singh, a citizen of India, came to the U.S. in 1991, then 22 years old. He obtained a temporary transit visa for work on a ship, Singh drove cabs instead. He has taken periodic trips back to India. In 1997 and 2005 he entered into "sham" marriages. Charged as removable for remaining in the country illegally, 8 U.S.C. 1227(a)(1)(B), Singh sought cancellation of removal, 8 U.S.C. 1229b(b)(1), arguing that his removal would harm his children (U.S. citizens), born in 2011 and 2013, and mother, a legal permanent resident, who owns a convenience store and has a good relationship with his U.S.-citizen brothers,The IJ denied Singh’s application finding that Singh failed to prove that he had continuously been present in the U.S. for a 10-year period immediately prior to the date that he was served with his “notice to appear” and failed to prove “exceptional and extremely unusual hardship." The BIA affirmed. The Sixth Circuit denied relief. Reviewing the hardship claim as a mixed question of law and fact, the court noted that Singh did not dispute that his mother’s and children’s health conditions were insufficiently serious to create that hardship; BIA precedent holds that diminished educational options alone do not establish the required hardship. Singh did not show that his children would be deprived of all opportunity to obtain any education. Singh failed to exhaust his remedies with respect to a claim of unconstitutional bias by the IJ. View "Singh v. Rosen" on Justia Law

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Silvestre-Gregorio, then age 16, entered the U.S. illegally in 2001. He was detained within weeks. At his removal hearing, he did not have an attorney but was assisted by an interpreter and a social worker. The interpreter spoke Spanish; Silvestre-Gregorio spoke little English and some Spanish; his native tongue was a regional dialect of Guatemala. He answered open-ended questions in Spanish, including where he was born and how he crossed the border. The IJ had to repeat some questions and explained to Silvestre-Gregorio his ability to appeal and his right to be represented by retained counsel. The IJ asked several times whether he would like time to find an attorney. Silvestre-Gregorio declined, saying that he wanted to finish his case that day. Silvestre-Gregorio was removed from the U.S. in June 2001. Silvestre-Gregorio returned to the U.S. in 2002. He accumulated convictions for domestic assault, public intoxication, theft, DUI, and driving without a license.In 2018, he was charged with unlawful reentry of a removed alien, 8 U.S.C. 1326(a). Silvestre-Gregorio argued that his 2001 removal violated his right to due process and could not be the basis for a section 1326 conviction. The Sixth Circuit affirmed the denial of the motion. Silvestre-Gregorio could understand the interpreter during his removal hearing and did not have a constitutional right to government-provided counsel or to be notified of discretionary relief (voluntary removal). View "United States v. Silvestre-Gregorio" on Justia Law

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In 2015, Hernandez-Serrano, age 16, entered the U.S. without inspection and was placed in removal proceedings. A year later, a Tennessee juvenile court made findings that rendered Hernandez-Serrano potentially eligible for “Special Immigrant Juvenile” status, 8 U.S.C. 1101(a)(27)(J), for which he applied. Hernandez-Serrano unsuccessfully sought administrative closure of his removal case pending a decision. In 2018, the IJ ordered Hernandez-Serrano removed to El Salvador. Hernandez-Serrano appealed to the BIA. Weeks later, his application for Special Immigrant Juvenile status was granted. Hernandez-Serrano challenged only the IJ’s denial of his motion for administrative closure, The BIA denied his motion, holding that the IJ lacked authority to close Hernandez-Serrano’s case administratively under 8 C.F.R. 1003.10, 1003.1(d) as interpreted in a 2018 Attorney General decision that “immigration judges and the Board do not have the general authority to suspend indefinitely immigration proceedings by administrative closure.”The Sixth Circuit denied relief. The authority of IJs to take certain actions “[i]n deciding the individual cases before them” does not delegate general authority not to decide those cases at all. The court noted that in more than 400,000 cases in which an alien was charged with being subject to removal, IJs or the BIA have closed cases administratively, removing them from the docket without further proceedings absent some persuasive reason to reopen it. As of October 2018, more than 350,000 of those cases had not been reopened. “Adjudicatory default on that scale strikes directly at the rule of law.” View "Hernandez-Serrano v. Barr" on Justia Law