Articles Posted in US Court of Appeals for the Third Circuit

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Tilija was active in the Nepali Congress Party (NCP), the political rival of the Maoists. While campaigning for the NCP, Maoists attacked him, throwing stones at his face, resulting in stitches. Maoists told Tilija’s father that they planned to kill Tilija. Discharged from the hospital, Tilija stayed at a hotel instead of going home, then moved four hours away. Maoists called him three times, stating that they would kill him when they found him. Tilija moved to Kathmandu. Maoists called and again threatened him. Tilija stopped using his cell phone. According to Tilija, the police did not investigate crimes committed by Maoists. Tilija left Nepal. In the U.S., charged removable (8 U.S.C. 1182(a)(7)(i)(I)), Tilija sought asylum, withholding of removal, and protection under the Convention Against Torture. The IJ denied relief, finding that Tilija was credible, adequately corroborated his claim, and was targeted for his political opinion but that the harm did not rise to the level of persecution and that Tilija did not establish that the government was unable or unwilling to protect him. Before the BIA, Tilija presented new, previously unavailable, evidence that after his merits hearing his wife was assaulted and raped because of his political activities and NCP affiliation. Tilija’s wife submitted medical records and corroborating letters. The BIA upheld the denial of relief. The Third Circuit remanded, holding, as a matter of law, that the new evidence established a prima facie asylum claim. View "Tilija v. Attorney General United States" on Justia Law

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A lawful permanent resident of the U.S. and a citizen of Zimbabwe, Nkomo was convicted of conspiracy to commit wire fraud, 18 U.S.C. 1342; 1349, an “aggravated felony,” which made Nkomo removable and ineligible for most relief. About a month after she was sentenced to time served for that offense, the government initiated removal proceedings. The Board of Immigration Appeals found Nkomo ineligible for withholding because her wire fraud conviction was for a “particularly serious crime,” 8 U.S.C. 1231(b)(3)(B)(ii). Denying Convention Against Torture protection, the Board found that Nkomo had not shown a probability she would be tortured by or with the acquiescence of the government of Zimbabwe. The Third Circuit rejected her petition for review, first distinguishing the Supreme Court's 2018 "Pereira" decision and holding that the failure of the notice to appear to specify the time and place of Nkomo’s initial removal hearing did not deprive the immigration judge of jurisdiction over the removal proceedings. Nkomo appeared and participated in, her removal hearing. Nkomo’s argument would invalidate scores of removal orders and grants of relief without requiring the alien to allege she lacked sufficient notice of her hearing. The court rejected her claim for withholding of removal and noted that it lacked jurisdiction over the CAT claim. View "Nkomo v. Attorney General United States" on Justia Law

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Payano, a citizen of the Dominican Republic, came to the U.S. legally at age 12. In 1998, at age 18, he pleaded guilty to first-degree possession of a controlled substance. In 2001, after completing his sentence, he was removed. Payano illegally reentered the U.S. in 2012. During a 2017 Pennsylvania traffic stop, the trooper found a kilogram of cocaine hidden in Payano's vehicle. Payano was charged with illegal reentry and possession with intent to distribute 500 grams or more of cocaine. The district court agreed that the drugs were the fruit of an unconstitutional search. The government dismissed the drug charge. Payano pleaded guilty to illegal reentry. Because Payano’s 1998 conviction was for drug possession, not drug distribution, it was a felony under federal law, not an aggravated felony. Payano’s plea was under 8 U.S.C. 1326(b)(1), which carries a maximum sentence of 10 years. The PSR calculated the Guidelines range as 24-30 months’ imprisonment and correctly listed the statutory maximum, but cited 1326(b)(2) (illegal reentry following an aggravated felony with a 20-year maximum). The government sought an upward variance because Payano had been “convicted of an aggravated felony" and had the court “correct” the PSR to reflect that Payano had pleaded guilty to “aggravated reentry.” Payano’s counsel agreed. The court imposed a four-year sentence. The Third Circuit vacated, agreeing that there was error but declining to extend the “Molina-Martinez“ presumption of prejudice because a mistaken understanding about the applicable statutory range, without more, has far less bearing on the actual sentence than a Guidelines-calculation error. The error did affect Payano’s substantial rights and without correction would seriously affect the fairness, integrity, or public reputation of judicial proceedings. View "United States v. Payano" on Justia Law

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Nunez was indicted for passport fraud, making a false representation of U.S. citizenship, using a false social security number, and producing a state driver’s license not issued for her use. Nunez was detained under the Bail Reform Act (BRA), 18 U.S.C. 3142(d), which permits the 10-day pretrial detention of non-citizens who may pose a flight risk or danger so ICE may take them into custody. ICE lodged a detainer. Twelve days later, a different magistrate arraigned Nunez, denied the government’s motion for pretrial detention, and set conditions for her release. The district court upheld the order. ICE then executed its detainer, taking Nunez into custody for her removal proceedings. While in ICE custody, Nunez unsuccessfully moved to dismiss her indictment or obtain release, arguing that section 3142(d) gives the government “the choice of [either] taking the Defendant into [ICE] custody during the ten-day period and proceeding with removal or continuing with the criminal prosecution in which case the BRA controls.” The court held that 8 U.S.C. 1226(a)(1) allowed ICE to detain Nunez during the pendency of removal proceedings notwithstanding the criminal action; her detention did not conflict with the BRA. The Third Circuit dismissed an appeal of the ruling denying the request to dismiss the indictment, which was not a final ruling. The court affirmed the denial of Nunez’s claim that her BRA release order foreclosed her ICE detention. View "United States v. Nunez" on Justia Law

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E.D., a female immigration detainee at the Berks County Residential Center Immigration Family Center (BCRC), brought a 42 U.S.C. 1983 action against employee Sharkey, alleging that he violated her Fourteenth Amendment right to bodily integrity after the two had sexual relations. Sharkey’s co-workers and BCRC supervisor allegedly were deliberately indifferent to the violation and Berks County allegedly failed to implement policies to prevent the violating conduct. The District Court denied the defendants’ motion for qualified immunity. The Third Circuit affirmed, holding that immigration detainees are entitled to the same constitutional protections afforded by the Due Process Clause of the Fourteenth Amendment as pre-trial detainees and E.D.’s rights were clearly established. There is enough evidence to support an inference that the defendants knew of the risk facing E.D., and that their failure to take additional steps to protect her, acting in their capacity as either a co-worker or supervisor, “could be viewed by a factfinder as the sort of deliberate indifference” to a detainee’s safety that the Constitution forbids. View "E. D. v. Sharkey" on Justia Law

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In 2006, Sambare, a citizen of Burkina Faso, was admitted to the U.S. as a lawful permanent resident. Sambare was subsequently convicted of credit card theft and forgery. In 2013, when Sambare returned from visiting his mother in Ghana, ICE asserted that Sambare was inadmissible under 8 U.S.C. 1182(a)(2)(A)(i)(I), having been convicted of “crime[s] involving moral turpitude.” Sambare obtained a waiver of inadmissibility, 8 U.S.C. 1182(h), which restored his status as a lawful permanent resident. In 2015, Pennsylvania police stopped Sambare in his vehicle after he allegedly made an illegal U-turn. Sambare, who initially provided a false name, admitted that he had smoked marijuana before driving. Sambare tested positive for marijuana in his system and pleaded guilty to driving under the influence of a Schedule I controlled substance. The Immigration Court found that Sambare was removable because his conviction was for a “violation of . . . any law or regulation of a State . . . relating to a controlled substance . . . , other than a single offense involving possession for one’s own use of 30 grams or less of marijuana,” 8 U.S.C. 1227(a)(2)(B)(i). The Third Circuit dismissed Sambare’s petition for review, agreeing that Sambare’s conviction “is associated with the prohibition of driving, operating, or actual physical control of the movement of a vehicle . . . while there is a controlled substance in the individual’s blood,” which “is more serious than simple possession. View "Sambare v. Attorney General United States" on Justia Law

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Cabrera, born in the Dominican Republic in 1979, was admitted to the U.S. as a lawful permanent resident in 1988. Two years later, he was adopted by a natural born U.S. citizen, Attenborough. Had he been Attenborough’s biological child, 8 U.S.C. 1409, would have provided him a pathway to automatic derivative citizenship. As an adopted child, the statute does not apply to him and his road to citizenship is more difficult. In 2014, Cabrera pled guilty to conspiracy to possess with intent to distribute heroin and was sentenced to 36 months’ imprisonment. Upon his release, Cabrera was served with notice of removal proceedings based on conviction of an aggravated felony, 8 U.S.C. 1227(a)(2)(A)(iii), and conviction of a controlled substance offense, section 1227(a)(2)(B)(i). Cabrera argued, on constitutional grounds, that he was entitled to derivative citizenship through his adoptive father and could not be removed. The Immigration Judge held that he lacked jurisdiction to hear the constitutional claim and ordered Cabrera removed. The Board of Immigration Appeals affirmed. The Third Circuit denied a petition for review, rejecting Cabrera’s argument disparate treatment between adopted and biological children violates the guarantee of equal protection under the Fifth Amendment’s Due Process Clause. View "Cabrera v. Attorney General United States" on Justia Law

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Liem, a citizen of Indonesia, is ethnically Chinese and a Seventh Day Adventist Christian. In Indonesia, Liem witnessed and experienced persecution based on belonging to these groups. In 1999, he obtained a six-month visa for vacationing in the U.S.. He stayed beyond its expiration, obtained employment, married, and fathered two American-born children. He is active at First Indonesian Seventh-Day Adventist Church. In 2003, Liem applied for asylum, withholding of removal, and protection under the Convention Against Torture. The IJ denied his asylum application as untimely but granted withholding of removal. The BIA vacated, stating Liem failed to establish a clear probability that he would be persecuted if returned to Indonesia. Liem moved to stay his removal and reopen the proceedings, referencing a continued pattern of anti-Chinese harassment and.a pattern of anti-Christian persecution. The BIA denied the motion, citing State Department findings of a decrease in discrimination against Chinese Christians in Indonesia. In 2018, ICE agents arrested Liem. Liem filed another motion to reopen, claiming that, since his 2003 merits hearing, conditions for Chinese Christians had materially deteriorated and that international agencies have reported that hatred and Islamic extremism directed at Indonesian Christians is rising, and the Indonesian government is unwilling to act for fear of reprisals from far-right Islamist groups. He noted the implementation of Sharia law in part of the country. The Third Circuit vacated the denial of his motion, finding that the BIA did not meaningfully consider the evidence and arguments nor explain its conclusions. View "Liem v. Attorney General United States" on Justia Law

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Madar was born in communist-ruled Czechoslovakia in 1964, entered the U.S. in 1991, and overstayed. He has litigated his legal status in the decades since his arrival. Madar sought a declaration that he is a U.S. citizen because his late father, Jozef, was a citizen, and his father’s citizenship transmitted to him. Madar’s paternal grandmother, Cikovsky, was born in 1906 in Ohio. As a teenager, she left the U.S. to settle in Czechoslovakia. She married there and gave birth to Jozef in 1940. Jozef never lived in the U.S., married a non-U.S. citizen in Czechoslovakia and had children there. Jozef knew of his mother’s American birth, but did not know that this might entitle him to citizenship. In his son’s immigration proceedings, Jozef swore in an affidavit that the political circumstances of post-war Czechoslovakia would have made compliance with requirements that foreign-born children of citizens be physically present in the U.S. for some amount of time to retain citizenship, difficult, if not impossible. The Third Circuit affirmed that even if Jozef had retained his citizenship under an equitable theory that excused his noncompliance with statutory physical presence requirements, he did not transmit that citizenship to his son. View "Madar v. United States Citizenship and Immigration Services" on Justia Law

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The U Visa, created under the Victims of Trafficking and Violence Protection Act of 2000, 114 Stat. 1464, grants temporary legal status to victims of specified crimes who have cooperated or are likely to cooperate in the investigation and prosecution of those crimes. After three years of holding a U Visa, an alien may apply for permanent resident status (8 U.S.C. 1255(m)(1)). Carmen entered the U.S. in 2005, became a lawful permanent resident under the “U Visa” statute because she was a rape victim, then sought permanent resident status for her son, Dario, under 8 U.S.C. 1255(m)(3), which empowers the U.S. Department of Homeland Security (DHS) to grant that status to certain family members, including a “child,” of an immigrant in Carmen’s situation. While that application was pending, Dario reached the age of 21, which made him ineligible under a DHS regulation that implements section 1255(m)(3). The Third Circuit upheld the denial of the application. Section 1255(m)(3) unambiguously requires DHS to assess the familial relationship required under that statute as it exists when DHS decides the application, even though this means a child can “age out” of eligibility while an application is pending. The DHS regulation adheres to this unambiguous meaning of the statute. View "Aybar v. Secretary United States Department of Homeland Security" on Justia Law