Justia Immigration Law Opinion Summaries

Petitioner left Syria because of fears relating to indebtedness and was admitted to the U.S. as a nonimmigrant in 2000. He became acquainted with men involved in the September 11 attacks and later voluntarily provided the FBI with information. In October 2001 the INS issued a Notice to Appear charging petitioner as removable. He sought asylum and withholding of removal and relief under the Convention Against Torture and was transferred to FBI custody on a material witness warrant. The IJ granted the application for asylum (8 U.S.C. 1158), withholding of removal (8 U.S.C. 1231(b)(3)(A)), and withholding of removal pursuant to the CAT, finding that he belonged to the social group of "hopeless debtors," persecuted in Syria. Three years later, ICE indicated that his application might have been fraudulent and that petitioner might pose a threat to national security. The BIA reopened "sua sponte" and remanded. The district court dismissed, for lack of jurisdiction, a "Petition for Writ of Habeas Corpus and Stay of Removal Proceedings." The Third Circuit reversed concluding that, under these unusual circumstances, the district court has jurisdiction to review the BIA decision to reopen pursuant to 28 U.S.C. 1331 and the Administrative Procedure Act, 5 U.S.C. 701.

Petitioner, a citizen of El Salvador, appealed both the BIA's dismissal of his initial appeal of the denial of his motion to reopen his deportation proceedings because of ineffective assistance of counsel and its denial of his motion for reconsideration. The court affirmed the denial of petitioner's first motion to reopen his deportation proceedings because he failed to comply with Matter of Lozada. The court held, however, that the BIA abused its discretion by denying petitioner's motion for reconsideration where the BIA imposed a due diligence requirement that was not part of Lozada's three-part test. Moreover, in doing so, the BIA directly contravened its own precedent and its earlier conclusion in this proceeding relying on that precedent in support of its conclusion that his motion was in fact timely filed. Accordingly, the court reversed the BIA's denial of petitioner's motion for reconsideration and remanded for further proceedings.

Petitioner Zhi Wei Pang illegally entered the United States in 1993 from the People's Republic of China. Months after he arrived, he unsuccessfully applied for asylum under the Immigration and Nationality Act and relief under the Convention Against Torture (CAT). Petitioner claimed he suffered economic and emotional persecution due to his resistance to Chinese population control policies. But because the economic penalties imposed on Petitioner did not rise to the level of past persecution, the Board of Immigration Appeals recommended Petitioner's removal. Upon review, the Tenth Circuit affirmed the decision of the Board of Immigration Appeals (BIA) and denied Petitioner's petition for review.

Petitioners, citizens of Mexico, entered the U.S. unlawfully in 1993 and 1998, respectively. Since 2000, husband has been seeking employment-based permanent residency. An individual who would not ordinarily qualify for lawful permanent residency because he entered without inspection, may apply as the beneficiary of a labor certification application or a visa petition filed on or before April 30, 2001, 8 U.S.C. 1255(i). According to the court, petitioners' former attorney provided incompetent, and at times ethically questionable, representation throughout the visa petition process, missing filing deadlines and sending associates to hearings without adequate information about the case, so that an IJ granted voluntary departure and the BIA affirmed denial of a motion to reopen. The Third Circuit denied review. The Due Process Clause does not guarantee an alien effective assistance of counsel in preparing, filing, and appealing a labor certification application and a visa petition before the start of removal proceedings. By the time removal proceedings began, petitioners had accrued more than one year of unlawful presence and would have been ordered removed regardless of counsel's actions.

Petitioner appealed from the district court's denial of habeas corpus relief after finding that he did not derive citizenship from his father. The district court ruled that petitioner was not in his father's "legal custody" when his father naturalized. The court concluded that the district court erred because it relied on an unenforceable Dominican Republic custody award where New York had jurisdiction to determine custody. Accordingly, the court vacated the judgment and remanded for further proceedings.

The Mexican nationals in consolidated cases re-entered the U.S. without authorization, having been removed following conviction of crimes. Charged with being in the U.S. after having been deported (8 U.S.C. 1326(a)), they requested reductions in sentence because the district did not have a "fast track" program under which they could receive leniency in exchange for a guilty plea. The Seventh Circuit affirmed the district court's rejection of the argument. A district court need not address the argument unless the defendant has shown that he is similarly situated to those who would actually receive the benefit in a fast-track district. A defendant must promptly plead guilty, agree to the factual basis proffered by the government, execute an enforceable waiver of specific rights before or during the plea colloquy, establish that he would be eligible for a fast‐track sentence in at least one district offering the program, and submit the likely imprisonment range in that district.

Defendant-Appellant Juan Manuel Cardenas-Mireles pled guilty to the offense of illegal reentry after deportation. At sentencing, he moved for a downward variance notwithstanding an adult criminal record involving 44 convictions and four deportations. The district court denied the motion, instead sentencing Defendant at the top of the applicable guidelines range. Defendant appealed his sentence on two grounds: (1) the district court committed procedural error by relying on an impermissible sentencing rationale to lengthen his sentence (namely, that remaining incarcerated was in Defendant's own best interests due to his health and mental state); (2) his sentence is substantively unreasonable. Finding that the district court did not abuse its discretion in sentencing Defendant to a sentence within the guidelines, the Tenth Circuit affirmed the district court's decisions.

Petitioner, a native and citizen of Mexico, petitioned for review of the decision of the BIA affirming an order that denied his motion to terminate removal proceedings based on his prior convictions. In 1994, the government first charged petitioner with removeability based on multiple convictions for child molestation and the IJ terminated those proceedings after finding that his convictions did not fall within the INA's definition of "aggravated felony." The government again charged petitioner with removability based on his 1993 convictions after Congress changed the law, codifying an expanded definition of aggravated felony to include "sexual abuse of a minor." The court agreed with the district court and held that res judicata did not bar the current removal proceedings against petitioner because they were based on a ground for removal that did not exist when the prior proceedings were terminated. Accordingly, the petition for review was denied.

Defendant, a native of Mexico, became a lawful permanent resident of the U.S. in 1978. In 1996, he filed an Application for Naturalization, disclosing that he had been arrested for a marijuana crime in the 1980s, and for disorderly conduct and trespassing in the 1990s, but that all charges had been dismissed. He did not reveal was that he had recently committed additional marijuana-related offenses for which he had not yet been charged. In 1998 he became a citizen and, weeks later, was charged with possession with intent to distribute 196 pounds of marijuana (21 U.S.C. 841(a)(1)) and conspiracy to possess with intent to distribute marijuana (21 U.S.C. 846). His sentence of 88 months was affirmed on appeal. Approximately three years after defendant was released from prison, the government sought to revoke his naturalization (8 U.S.C. 1451(a)). The district court granted judgment in favor of the U.S., finding that defendant was barred from establishing good moral character. The Seventh Circuit affirmed, declining to commit a "loophole" for those who evade detection and conviction until after they are naturalized.

Petitioner, born in El Salvador, petitioned for review of the BIA's dismissal of his appeal. The BIA found that petitioner was removable because he had committed a crime of violence and failed to establish entitlement to relief from removeability. The court held that the BIA committed no error when it dismissed petitioner's appeal because he failed to establish a claim of derivative citizenship due to his legitimation under Salvadoran law. In the absence of derivative citizenship, petitioner was subject to removal due to his commission of a crime of violence. Accordingly, the petition was denied.