Justia Immigration Law Opinion Summaries

In 1993, Zambrano, a lawful permanent U.S. resident, pleaded guilty to aggravated sexual abuse of a minor, an aggravated felony that made him deportable. He served four years of probation. Until 1996, permanent resident aliens facing deportation could apply for a discretionary Section 212(c) waiver. Zambrano, having been in the U.S. since 1979 and not having served any jail time for his felonies, likely would have obtained, a Section 212(c) waiver had his deportation order been entered before 1996. His removal proceedings began in 1998, after enactment of the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act. Section 212(c) waivers were replaced with narrower discretionary relief, “cancellation of removal,” under which the Attorney General may cancel removal for certain lawful permanent residents, but not for those convicted of aggravated felonies. 8 U.S.C. 1229b(a)(3). Zambrano was removed 2000. A decade later, back in the U.S, he was charged with illegal reentry, 8 U.S.C. 1326. Zambrano pleaded guilty, but on the eve of sentencing, moved to withdraw his plea, based on the Supreme Court’s 2011 decision, Judulang v. Holder. The district court denied the motion and sentenced Zambrano to 12 months and one day. The Seventh Circuit affirmed. View "United States v. Zambrano" on Justia Law

Defendant pled guilty to illegal reentry after a prior deportation and subsequently appealed the district court's denial of his motion to dismiss the indictment on the ground that the prior deportation order was fundamentally unfair. The court concluded that defendant had shown that he exhausted his administrative remedies by appealing the IJ's adverse ruling to the BIA. Defendant failed, however, to show that an error or obstacle related to his deportation proceedings improperly deprived him of the opportunity for judicial review. Because 8 U.S.C. 1326(d)(1), (d)(2), and (d)(3) must all be satisfied either directly or constructively, the court affirmed the denial of the motion to dismiss and his conviction without addressing the merits of his argument. View "United States v. Gonzalez-Villalobos" on Justia Law

Petitioner, a native of Senegal and a citizen of Guinea, filed an application for withholding of removal and protection under the Convention Against Torture. The immigration judge (IJ) denied Petitioner's application and ordered him removed to Guinea. The Board of Immigration Appeals (BIA) affirmed. Petitioner appealed, arguing, among other things, that the IJ and BIA erred in failing to consider whether the threat of forced genital mutilation to his daughters, should they return with him, constituted a threat of direct persecution to him in the form of psychological injury. The First Circuit Court of Appeals denied Petitioner's petition for review, holding (1) substantial evidence supported the determination that Petitioner faced neither past persecution nor a likelihood of future persecution; and (2) Petitioner did not establish that his removal would result in his daughters' accompanying him to Guinea, and Petitioner's theory of direct persecution of him based on the possible risk to his daughters was foreclosed by the BIA, in a reasonable interpretation of the relevant statute, and by circuit precedent. View "Camara v. Holder" on Justia Law

The district court permanently enjoined enforcement of two Hazleton ordinances that attempt to prohibit employment of unauthorized aliens and preclude them from renting housing within the city. The Third Circuit affirmed in 2010. The Supreme Court granted certiorari and remanded for reconsideration in light of Chamber of Commerce v. Whiting, S. Ct. 1968 (2011). The Court later decided Arizona v. United States, 132 S. Ct.2492 (2012). Both address the extent to which federal immigration law preempts state laws pertaining to the treatment of unauthorized aliens. On remand, the Third Circuit again concluded that both the employment and housing provisions of the Hazleton ordinances are preempted by federal immigration law. The employment provisions in the ordinance are distinguishable from the Arizona law upheld in Whiting. The lack of minimal procedural protections in Hazleton’s ordinance conflicts with express congressional objective of minimizing undue burdens on, and harassment of, employers. The rental registration scheme serves no discernible purpose other than to register the immigration status of a subset of the city’s population. The Supreme Court’s reasoning in Whiting and Arizona does not undermine a conclusion that both the employment and housing provisions are preempted. View "Lozano v. City of Hazleton" on Justia Law

Petitioner, a native and citizen of Indonesia who is a Christian and of Chinese descent, petitioned for review of the denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Because the BIA treated petitioner as credible, the court concluded that there was no basis to exclude from consideration petitioner's testimony that the staff of a public hospital deliberately delayed administering medical treatment to her three-month-old daughter on account of petitioner's race and religion. This evidence was directly relevant to whether petitioner suffered past persecution and may also be relevant to whether she had shown an individualized likelihood of future persecution. Accordingly, on remand, the BIA must reconsider petitioner's request for withholding of removal giving full weight to the evidence concerning the baby's death. The court addressed the remaining claims, granting the petition for review in part, denying it in part, dismissing it in part, and remanding for further proceedings. View "Sumolang v. Holder" on Justia Law

Bathula and her husband, Reddy, citizens of India, separately applied for asylum, claiming that their family had been subjected to persecution at the hands of a local criminal group after Reddy testified against its members on trial for murder. The Department of Homeland Security denied the petitions. In removal proceedings, they together renewed their request for asylum and requested withholding of removal and relief under the Convention Against Torture. The immigration judge denied relief and ordered removal. The Board of Immigration Appeals affirmed, then denied a request to reopen on the basis of ineffective assistance of counsel. The Seventh Circuit denied petitions for review, finding no evidence that would require a fact-finder to conclude that the petitioners were subjected to past persecution or that any harm was on account of a statutorily protected ground. They showed no prejudice from ineffective assistance. View "Bathula v. Holder" on Justia Law

Shweika applied for naturalization in 2004. Three years passed without review. Shweika obtained a writ, compelling USCIS to complete review by May 30, 2008. On May 29, 2008, USCIS denied the application because Shweika failed to provide certified copies of expungement documents to meet his burden to establish good moral character. Shweika sought a hearing. Although regulations require that USCIS schedule a hearing within 180 days of a timely request, 10 months passed. Shweika returned to the district court, which found that mandamus was unnecessary, but did not dismiss. The immigration officer conducted a de novo review, contrary to Shweika’s expectations, asking about a conviction from 1992, and allegations by Shweika’s ex-wife suggesting domestic violence. Shweika’s attorney asked to stop the hearing because the inquiry exceeded the scope of appeal; the officer refused. On advice of counsel, Shwika left. USCIS denied Shweika’s application on the record before it. Although noting that USCIS equivocated over whether denial was on the merits or for failure to prosecute, the district court concluded that it lacked subject matter jurisdiction. The Sixth Circuit vacated, reasoning that that the 8 U.S.C. 1421(c) hearing requirement is nonjurisdictional, but that Shweika was not free to disregard the requirement, if he did so. View "Shweika v. Dep't of Homeland Sec." on Justia Law

Petitioner, a 37-year-old gay native and citizen of the Philippines, petitioned for review of the BIA's order vacating an IJ's grant of withholding of removal and protection under the CAT. The court concluded that the BIA failed to apply the clear standard of review to the IJ's factual findings, and also abused its discretion by ignoring factual findings of the IJ. The court granted the petition for review as to the application for withholding of removal where no reasonable factfinder could conclude that the harm petitioner suffered on account of his sexual orientation did not rise to the level of persecution in light of the cumulative effect of multiple instances of physical harm and victimization. The court, however, denied the petition for review of the BIA's denial of CAT relief where it was unclear that petitioner's beatings and economic deprivation rose to the level of torture. View "Vitug v. Holder" on Justia Law

Petitioner, a native and citizen of China, was placed in removal proceedings. Petitioner sought filed an application for asylum, withholding of removal, and protection under the Convention Against Torture, seeking relief. An immigration judge granted Petitioner's asylum application, finding that Petitioner had a reasonable fear in being subject to, at a minimum, having a forced intrauterine device (IUD) insertion and possibly sterilization in order to prevent her giving birth to future children. The Board of Immigration Appeals (BIA) reversed. The First Circuit Court of Appeals denied Petitioner's petition for review, holding that the BIA did not err in concluding that Petitioner did not face an objectively reasonable risk of having implanted an IUD by Chinese authorities through persecutory means or of suffering persecutory harm if she were to refuse to have an IUD implanted. View "Lin v. Holder" on Justia Law

In this pre-enforcement challenge to a package of immigration laws known as Act 69, the district court preliminarily enjoined certain sections of the Act on preemption grounds. On the merits, the court concluded that the district court was correct to enjoin Sections 4(A) and (C) because they criminalized actions that Congress has, as a policy choice, decided were a civil matter. The court also concluded that Sections 4(B) and (D) created an obstacle to the smooth functioning of federal immigration law, improperly placed in the hands of state officials the nation's immigration policy, and stripped federal officials of the authority and discretion necessary in managing foreign affairs. Accordingly, the court concluded that these sections, along with Sections 5 and 6(B)(2), were all preempted by federal law and, therefore, the court affirmed the district court's grant of a preliminary injunction. View "United States v. State of South Carolina" on Justia Law