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The Immigration and Nationality Act, 8 U.S.C. 1401(a)(7), provides a path to citizenship for a child born abroad if the child’s U.S.-citizen parent has 10 years’ physical presence in the U.S. before the child’s birth, “at least five of which were after attaining” age 14. Section 1409(c) provides that an unwed U.S.-citizen mother's citizenship can be transmitted to a child born abroad if she has lived continuously in the U.S. for one year before the child’s birth. Morales-Santana’s father, José, moved to the Dominican Republic 20 days before his 19th birthday, so he did not satisfy 1401(a)(7)’s requirement for physical presence after age 14. A Dominican woman gave birth to Morales-Santana in 1962. José accepted parental responsibility. Morales-Santana has lived in the U.S. since he was 13. In 2000, the government sought to remove Morales-Santana based on criminal convictions, ranking him as alien. The Supreme Court affirmed the Second Circuit, ruling in Morales-Santana’s favor. The statute’s gender line is incompatible with the Fifth Amendment’s equal protection requirement. Morales-Santana has third-party standing to vindicate his deceased father’s rights. The Court applied “heightened scrutiny” and found no important governmental interest for the law’s “overbroad generalizations.” Given the choice between extending favorable treatment to the excluded class or withdrawing favorable treatment from the favored class, the Court noted that extension of favorable treatment to fathers would displace Congress’ general rule, the longer physical-presence requirements. Pending Congressional action, the five-year requirement should apply, prospectively, to children born to unwed U.S-citizen mothers. View "Sessions v. Morales-Santana" on Justia Law

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President Trump, in issuing Executive Order 13780, "Protecting the Nation from Foreign Terrorist Entry Into the United States," exceeded the scope of the authority delegated to him by Congress. After determining that plaintiffs have standing to assert their claims based on the Immigration and Nationality Act (INA), the Ninth Circuit held that plaintiffs have shown a likelihood of success on the merits of that claim and that the district court's preliminary injunction order could be affirmed in large part based on statutory grounds. The panel declined to reach the Establishment Clause claim to resolve this appeal. The panel held that, in suspending the entry of more than 180 million nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for the 2017 fiscal year, the President did not meet the essential precondition to exercising his delegated authority pursuant to 8 U.S.C. 1182(f). The President failed to make a sufficient finding that the entry of the excluded classes would be detrimental to the interests of the United States. The panel also held that the Order violated other provisions of the INA that prohibit nationality-based discrimination and require the President to follow a specific process when setting the annual cap on the admission of refugees. Accordingly, the panel affirmed in large part; vacated portions of the injunction that prevent the Government from conducting internal reviews and the injunction to the extent that it runs against the President; and remanded with instructions. View "Hawaii v. Trump" on Justia Law

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Members of the notorious Salvadoran gang, MS13, shot Serrano-Alberto's brother, leaving him paralyzed; extorted Serrano-Alberto , an acclaimed professional soccer player; and, when he ceased to pay, shot Serrano-Alberto, his nephew, and a neighbor, killing the neighbor and leaving the others in serious condition. Police refused to take a report because Serrano-Alberto did not know the names of the shooters. Fearing reprisal, Serrano-Alberto twice attempted to flee but was returned by Mexican authorities. In 2009-2012, Serrano-Alberto was imprisoned in El Salvador on extortion charges; he was ultimately absolved. Gang members continued to search for him. They shot another his brothers for refusing to divulge Serrano-Alberto’s whereabouts. In 2012, Serrano-Alberto escaped harm in a drive-by shooting by diving under a car. Serrano-Alberto moved multiple times. His mother warned that gang members were continuing to pursue him. In 2014, Serrano-Alberto observed apparent gang members in his new neighborhood and fled to the U.S.He was apprehended and applied for asylum, withholding of removal, and protection under the Convention Against Torture. At his hearing, the IJ was “confrontational, dismissive, and hostile, interrupting and belittling Serrano-Alberto’s testimony, time and again cutting off his answers to questions, and nitpicking immaterial inconsistencies.” She ordered removal. The BIA denied relief. The Third Circuit vacated and urged reassignment on remand. The Fifth Amendment protects the liberty of all persons within U.S. borders, including aliens in immigration proceedings who are entitled to a meaningful opportunity to be heard. View "Serrano-Alberto v. Attorney General United States" on Justia Law

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Chagoya‐Morales, a citizen of Mexico, illegally entered the U.S. In 2008, he was convicted of aggravated robbery. In 2009, he was deported. Chagoya‐Morales did not obtain permission to reenter. In 2015, Chicago Police conducted a traffic stop on a vehicle in which Chagoya‐Morales was a passenger. The officers allegedly observed Deantes using her cell phone while driving. Approaching Deantes’s car, the officers smelled a strong odor of cannabis emanating from the vehicle, conducted a pat down search of Chagoya‐Morales, and recovered a small plastic bag containing marijuana. Chagoya‐Morales was charged with illegal reentry into the U.S., 8 U.S.C. 1326(a) and 6 U.S.C. 202(4). Chagoya‐Morales filed a motion to suppress, arguing that the traffic stop was illegal and so that the government’s knowledge of his name and his immigration status should be suppressed as “fruit of the poisonous tree.” The Seventh Circuit upheld the denial of the motion and the addition of 16 offense levels under the “crime of violence” enhancement in U.S.S.G. 2L1.2(b)(1)(A)(ii). The Fourth Amendment does not prohibit police from requiring a person to identify himself, nor does it guarantee a defendant the right to conceal his identity during a criminal prosecution. Chagoya‐Morales’s prior 2008 conviction is a crime of violence under the guidelines. View "United States v. Chagoya-Morales" on Justia Law

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On a motion for special findings for Special immigrant juvenile status (SIJ), the judge shall make such findings without regard to the ultimate merits or purpose of the juvenile’s application. The issue presented in these consolidated appeals was whether a judge may decline to make special findings based on an assessment of the likely merits of a movant’s application for SIJ status or on the movant’s motivation for seeking SIJ status. Here, an eight-year-old undocumented immigrant for Guatemala and a nineteen-year-old undocumented immigrant from El Salvador filed motions seeking the request special findings for SIJ status. The probate and family court judge implicitly determined that neither child would be entitled to SIJ based on her interpretation of 8 U.S.C. 1101(a)(27)(J) and declined to make special findings. The Supreme Judicial Court reversed and remanded the cases to the probate and family court for further fact finding, holding that the judge erred in these cases by declining to make special findings as to all three prongs of the special findings analysis. View "in re Guardianship of Penate" on Justia Law

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The Supreme Court held that Defendant must be allowed to withdraw his plea of guilty to a criminal offense because Defendant would not have accepted the plea agreement if he had been provided the effective assistance of counsel to which he was constitutionally entitled. Defendant, who entered the United States without examination by the Department of Homeland Security, pleaded guilty to aggravated misdemeanor forgery. Based on this conviction, he was removed from the United States to Mexico. After Defendant returned to the United States he filed for postconviction relief, asserting that he was denied the effective assistance of counsel because counsel did not advise him pleading guilty to an aggravated felony has severe immigration consequences. The district court agreed and vacated Defendant’s conviction. The court of appeals reversed. The Supreme Court vacated the court of appeals, affirmed the district court, and remanded to allow Defendant to withdraw his plea and stand for trial, holding that counsel provided constitutionally deficient performance, and this deficiency resulted in prejudice. View "Diaz v. State" on Justia Law

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Iowa’s forgery statute is preempted on its face by federal immigration law. Further, Iowa’s identity theft statute is field preempted as applied in this case, and enforcement of the identity theft statute is conflict preempted in this case. Appellant was an undocumented citizen who was brought to Iowa by her parents when she was eleven years old. Appellant was educated in Iowa public schools, lived in Iowa continuously, and was a mother of four children who were United States citizens. Appellant applied for and received temporary lawful immigration status from the Department of Homeland Security pursuant to the Department’s Deferred Action for Childhood Arrivals program. Appellant was later prosecuted by the State for using false documents to obtain federal employment authorization. Appellant filed a motion to dismiss, arguing that federal law preempted her prosecution under the Iowa identity theft and forgery statutes. The district court denied the motion, concluding that the charges of identity theft and forgery were state crimes independent of Appellant’s immigration status. The Supreme Court reversed. View "State v. Martinez" on Justia Law

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Garcia, a Honduran national, came to the U.S. in 2003. He was ordered removed in absentia and eventually departed in 2005. Garcia claims that he encountered persecution upon his return to Honduras because of his unpopular political views— his opposition to deforestation. He was kidnapped and beaten. He returned to the U.S. in 2014 and, after being apprehended, sought asylum. The Chicago Asylum Office issued a positive reasonable fear determination and referred his case to an Immigration Judge for withholding‐only proceedings. Garcia then filed an asylum application. The IJ granted Garcia statutory withholding of removal, stating that she lacked the authority to reconsider the reinstatement of Garcia’s removal order (8 C.F.R. 208.31(e)). The Board of Immigration Appeals rejected Garcia’s argument that he had a statutory right to seek asylum under 8 U.S.C. 1158(a). The BIA reasoned that it lacked authority to declare the controlling regulations in violation of the statute, but also noted that “several federal courts have held a person in reinstatement proceedings is not eligible for and cannot seek asylum.” The Seventh Circuit dismissed an appeal because asylum is a form of discretionary relief, so Garcia lacks standing to challenge the regulations prohibiting him from applying for it. View "Garcia v. Sessions" on Justia Law

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Petitioner, a Nigerian citizen by birth, pleaded guilty to making a material false statement in a matter within the jurisdiction of the United States government. Because of his conviction, Petitioner was permanently barred from obtaining lawful permanent resident status and was subject to deportation at any moment. Nearly a decade after his probationary sentence ended, Petitioner sought a writ of error coram nobis that vacates or allows him to revise the factual basis of his conviction. As grounds for the writ, Petitioner alleged that the performance of his attorney was constitutionally deficient under Sixth Amendment standards, and therefore, his conviction arose from fundamental error. The district court denied a writ of error coram nobis. The First Circuit affirmed, holding that Petitioner’s counsel was not constitutionally ineffective in any way. View "Williams v. United States" on Justia Law

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Fuentes pleaded guilty to illegal reentry by a deported alien, 8 U.S.C. 1326(a) and (b)(2), and was sentenced to 24 months’ imprisonment. The Seventh Circuit affirmed, stating that Fuentes had waived his argument that the district court erred in its Sentencing Guidelines calculation. The court noted that the plea agreement stated that “[p]ursuant to Guidelines 2L1.2(b)(1)(C) defendant’s offense level is increased by 8 levels because defendant previously was deported after a conviction for an aggravated felony.” The parties had agreed that the resulting advisory Guidelines range was 24-30 months. View "United States v. Fuentes" on Justia Law