Justia Immigration Law Opinion Summaries

Articles Posted in US Court of Appeals for the Third Circuit
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E.O.H.C. and his daughter fled Mixco, Guatemala, a city plagued by violence, crossed into the U.S. and presented themselves to Border Patrol officers. The government began removal proceedings, scheduling a hearing in San Diego. Under a new DHS policy, the Migrant Protection Protocols, the government returned the two to Mexico to await their hearing. They were left to fend for themselves in Tijuana. E.O.H.C. told the IJ that he did not fear going back to Guatemala. He later alleged that a Border Protection officer advised him to say this. He was not then represented by counsel. The IJ ordered removal. E.O.H.C. waived the right to appeal, allegedly because he feared being returned to Mexico. They were transferred to a Pennsylvania detention facility, where they argued that E.O.H.C.’s appeal waiver was invalid. The BIA granted an emergency stay of removal. The government flew them to San Diego for return to Mexico. They filed an emergency mandamus petition. The government returned them to Pennsylvania. They challenged the validity and applicability of the Protocols and argued that returning them to Mexico would interfere with their relationship with their lawyer and would violate several treaties. The district court dismissed for lack of subject-matter jurisdiction. The Third Circuit reversed in part. When a detained alien seeks relief that a court of appeals cannot meaningfully provide on a petition for review of a final order of removal, 8 U.S.C.1252(b)(9) and 1252(a)(4) do not bar consideration by a district court. One claim, involving the right to counsel, arises from the proceedings to remove them to Guatemala and can await a petition for review. The other claims challenge the plan to return the petitioners to Mexico in the meantime. For these claims, review is now or never. View "E.O.H.C. v. Secretary United States Department of Homeland Security" on Justia Law

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Ragbir, a green card holder from Trinidad and Tobago, was convicted of mortgage fraud in 2000. On his attorney’s advice, Ragbir agreed that the actual loss was $350,000-$500,000, believing that his convictions alone made him deportable. The Third Circuit affirmed Ragbir’s convictions and sentence. Ragbir never sought post-conviction relief. DHS commenced removal proceedings. Ragbir then learned that his stipulation to a loss of more than $10,000 made him deportable. Ragbir’s immigration counsel represented that an attorney would be hired to attempt to vacate the underlying convictions. Ragbir still did not pursue a collateral attack. The IJ ordered him removed; the BIA and Second Circuit upheld the decision. In the meantime, Ragbir married an American citizen and obtained an immigrant visa. The BIA denied a motion to reopen. DHS eventually elected not to renew its discretionary stay of removal. Ragbir then challenged his detention, asserting that his conviction should be overturned because jury instructions given at his trial were erroneous in light of later Supreme Court rulings and asserting ineffective assistance of counsel. The Third Circuit affirmed the denial of the petition. Ragbir had the ability to bring all his claims at least six years before his 2012 petition for coram nobis. He provides no sound reason for his delay. View "Ragbir v. United States" on Justia Law

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Rosa, a citizen of the Dominican Republic, was admitted to the U.S. as a legal permanent resident in 1992, as a child. In 2004, he pled guilty to possession and sale of a controlled substance (cocaine) within 1,000 feet of school property under the New Jersey School Zone Statute. Eleven years later, Rosa was charged as removable for the conviction of a controlled substances offense and of an “aggravated felony” for a “drug trafficking crime.” Rosa denied removability for the aggravated felony, which would have precluded him from being eligible for cancellation of removal. The IJ applied the “categorical approach” and compared the New Jersey School Zone Statute with the federal statute for distribution “in or near schools and colleges” and concluded that the state statute swept more broadly than its federal counterpart in both proscribed conduct and its definition of “school property,” so that Rosa’s state conviction was not an “aggravated felony” under federal law. The IJ granted cancellation of removal. The Board of Immigration Appeals held that Rosa’s state conviction could be compared to the federal statute generally prohibiting the distribution of a controlled substance as a lesser included offense of the Federal School Zone Statute and ordered Rosa removed. The Third Circuit remanded. The categorical approach, which compares the elements of prior convictions with the elements of crimes under federal law, does not permit comparison with any federal crime but only with the “most similar” one. View "Rosa v. Attorney General United States" on Justia Law

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In 1992, Dohou came from Benin to the U.S. on a visitor’s visa. He became a lawful permanent resident. More than a decade later, he was convicted of conspiring to traffic marijuana, an aggravated felony. DHS served him with a notice to appear at a date and time to be set later. After a hearing, the IJ ordered Dohou removed. He never appealed to the BIA or sought review. Agents repeatedly tried to take Dohou to the airport for removal. He resisted. Dohou unsuccessfully moved to dismiss his indictment for hindering his removal, 8 U.S.C. 1253(a)(1)(A)–(C), asserting that the absence of a date and time on the notice to appear deprived the IJ of authority to order removal and ineffective assistance of counsel. The court reasoned that Dohou had been convicted of an aggravated felony, 8 U.S.C. 1252(a)(2)(C), which stripped it of jurisdiction over his collateral attack on the removal order. The Third Circuit vacated. A removal order that was never reviewed by an Article III judge remains subject to collateral attack in a hindering-removal prosecution based on that order; the original removal order was not “judicially decided,” 8 U.S.C. 1252(b)(7)(A). It is not enough that Dohou could have sought judicial review; section 1252(a)(2)(C), which sometimes strips jurisdiction over direct review of removal orders, does not apply to collateral attacks. Dohou’s ineffective-assistance claim requires fact-finding and the district court must decide whether a statutory- or prudential-exhaustion doctrine bars relief. View "United States v. Dohou" on Justia Law

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Da Silva, a two-year-old native of Brazil, was admitted to the U.S. in 1994 with a B-2 visa. She has never left the U.S. Da Silva married a U.S. citizen, Leach, a member of the armed services, who subjected Da Silva to abuse and engaged in extramarital affairs, including with L.N. During a confrontation, Da Silva punched L.N. in the nose twice. Da Silva pleaded guilty to assault, 18 U.S.C. 113(a)(4) and was sentenced to 18 months’ imprisonment. In removal hearings, the IJ recognized that Da Silva had “been provoked.” She unsuccessfully sought cancellation of removal for battered spouses under the Violence Against Women Act, 8 U.S.C. 1229b(b)(2)(A). Da Silva could not satisfy the “good moral character” requirement because of her imprisonment for her assault conviction. She argued that she qualifies for the exception because the “act or conviction was connected to the alien’s having been battered or subjected to extreme cruelty.” The IJ found that Leach had threatened to take away Silva’s children due to her undocumented status, was consistently unfaithful, verbally and physically abused her and her daughter, and refused to allow her to seek immigration status, and found that her removal would result in extreme hardship but that the assault convictions were not “connected to” the cruelty. The Third Circuit vacated; “connected to” is unambiguous and means “having a causal or logical relationship.” Da Silva’s convictions are connected to Leach's extreme cruelty. View "Da Silva v. Attorney General United States" on Justia Law

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In 1975, Espichan was born in Peru. His father came to the U.S. as a lawful permanent resident in 1979. He got custody of Espichan in 1986 by a power of attorney signed by Espichan’s mother. In 1990, at the Callao, Peru police headquarters, Espichan’s mother filed a public declaration that she and Espichan’s father, having lived together since 1970, separated in 1979. Espichan’s father petitioned for him to come to the U.S. as a lawful permanent resident. Espichan, 14, arrived in 1990. That month, his father became a U.S. citizen. In 2016, Espichan was charged as an alien convicted of an aggravated felony, subject to removal under 8 U.S.C. 1227(a)(2)(A)(iii). Espichan argued that he had acquired derivative citizenship through his father under 8 U.S.C. 1432(a)(3), the applicable law at the time, because his parents were legally separated at the time of his father’s naturalization. The IJ and BIA rejected this claim, finding “unequivocal evidence” that Espichan’s father “never held himself out to be married” to Espichan’s mother. The Third Circuit vacated and transferred the case to the district court. Espichan’s nationality claim presents a genuine issue of material fact: whether his parents were married. If the court finds that they were married, Espichan has satisfied section 1432(a)(3)–(5), has derivative citizenship, and may not be removed. View "Espichan v. Attorney General United States" on Justia Law

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Eight-year-old Quinteros and his mother came to the U.S. from El Salvador in 2001. When he was 13, Quinteros joined the gang MS-13. In 2011, Quinteros was indicted for conspiracy to commit assault with a dangerous weapon, 18 U.S.C. 1959(a)(6). The planned gang attack never occurred. Quinteros later pled guilty and was sentenced to 30 months’ imprisonment. In prison, Quinteros left MS-13 to follow Christianity. Other MS-13 members in prison told him that when he was deported “things are going to change. There’s no getting out over there.” Quinteros was charged as removable for having committed an aggravated felony, 8 U.S.C. 1101(a)(43)(F), (U), and (J). Quinteros checked the form box to contest his deportability but failed to follow up with additional documentation. Quinteros then sought withholding of removal. An asylum officer determined that Quinteros demonstrated a reasonable fear that he would be tortured in El Salvador. Before an IJ, Quinteros testified and presented studies and reports, that discussed the perception and treatment of individuals with tattoos in El Salvador. The Third Circuit vacated the BIA’s rejection of Quinteros’s claims. Quinteros’s conviction under 18 U.S.C. 1959(a)(6) is not an aggravated felony under 8 U.S.C. 1101(a)(43)(F), (U), or (J); conviction under section 1959(a)(6) does not require an overt act and is not a categorical match for conspiracy under the Immigration Act. View "Quinteros v. Attorney General United States" on Justia Law

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The Third Circuit granted a petition for review challenging the BIA's decision affirming the IJ's denial of petitioner's application for withholding of removal under the Immigration and Nationality Act (INA) and the Convention Against Torture (CAT). The court held that the IJ and BIA erred in deciding that petitioner's conviction for conspiracy to commit wire fraud is a conviction for a particularly serious crime, making him ineligible for withholding of removal. In this case, the IJ and BIA failed to correctly apply the analysis articulated in In re N-A-M-, skipping right over the preliminary consideration of elements. Therefore, on remand, the agency should first determine whether the elements of petitioner's offense potentially fall within the ambit of a particularly serious crime. Only then may it proceed to consider the facts and circumstances particular to petitioner's case. The court also held that the IJ failed to observe the rule articulated in Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001), requiring immigration judges to notify a noncitizen in removal proceedings that he is expected to present corroborating evidence before finding that failure to present such evidence undermines his claim. Therefore, the court must remand for a new corroboration determination. View "Luziga v. Attorney General" on Justia Law

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Under the now-repealed 8 U.S.C. 1432(a)(2), a “child” born outside of the U.S. to noncitizen parents became a citizen upon the naturalization of her surviving parent if one of her parents was deceased. Section 1101(c)(1) defined “child” as including a child born out of wedlock only if the child was legitimated under the “law of the child’s residence or domicile” or “the law of the father’s residence or domicile . . . except as otherwise provided in” section 1432, which exempted mothers of born-out-of-wedlock children from the legitimation requirement. That affirmative steps to verify paternity, including legitimation, may be taken if a citizen-parent is an unwed father has withstood constitutional scrutiny, on the basis that the relation between a mother and a child “is verifiable from the birth.” Tineo was born in the Dominican Republic to noncitizen parents who never married. His father moved to the U.S. and naturalized. His noncitizen mother died. At the time, under the laws of either the Dominican Republic or New York, legitimation could only occur if his birth parents married. Tineo’s father was forever precluded from having his son derive citizenship through him, despite being a citizen and having cared for his son. Threatened with removal, Tineo brought a Fifth Amendment challenge on behalf of his now-deceased father. The Third Circuit held that, in this circumstance, the interplay of the statutory sections are inconsistent with the equal-protection mandate of the Due Process Clause. View "Tineo v. Attorney General United States" on Justia Law

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According to its website, the University of Northern New Jersey, founded in 2012, was “nationally accredited by the Accrediting Commission of Career Schools and Colleges and the Commission on English Language Accreditation” and “certified by the U.S. Department of Homeland Security, Student and Exchange Visitor Program to educate international students.” The site included a statement from UNNJ's President, Dr. Brunetti, and its social media accounts informed students of closings for inclement weather and of alumni marriages. The University never existed. The Department of Homeland Security created the “sham university” to catch brokers of fraudulent student visas. It ensnared many such brokers; hundreds of foreign students “enrolled.” The government initially conceded that those students were innocent victims, but later suggested that they were akin to participants in the fraudulent scheme. Each enrolled student (including the plaintiffs) received a letter informing them that their student status had been terminated due to fraudulent enrollment. The government charged 21 individuals with fraudulently procuring visas. The plaintiffs filed a class action. The district court dismissed the claims, finding that there was no final government action. The Third Circuit vacated. Reinstatement proceedings are not required and would not afford an opportunity for review of DHS’s decision to terminate their F1 visa status. The students need not wait until removal proceedings are instituted to challenge the termination of their student status; neither immigration judges nor the BIA have authority to overturn the denial of reinstatement. View "Fang v. Director United States Immigration & Customs Enforcement" on Justia Law