Justia Immigration Law Opinion Summaries

Petitioner, a native and citizen of El Salvador, petitioned for review of an order of the BIA that affirmed an IJ's denial of asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The court held that it lacked jurisdiction to review the BIA's determination that petitioner's asylum application was barred as untimely filed. The court also held that substantial evidence supported the BIA's determinations regarding withholding of removal and CAT relief. Therefore, the petition for review was denied.

Petitioner, a native and citizen of Guatemala, petitioned for review of the BIA's decision denying his application for cancellation of removal. After a merits hearing, the IJ found that petitioner satisfied the requirements to cancel removal proceedings but the BIA vacated the decision, determining that the IJ applied the wrong legal standard. Petitioner contended that the BIA incorrectly ruled that the IJ applied the wrong legal standard in determining "exceptional and extremely unusual hardship" and that the BIA applied the incorrect legal standard by failing to adequately consider certain factors that the BIA had considered relevant in other decisions. As a threshold matter, the court held that it had jurisdiction to review the nondiscretionary determinations underlying a denial of an application for cancellation of removal, such as the "predicate legal question whether the [BIA] properly applied the law to the facts in determining an individual's eligibility to be considered for the relief." The court held that the issue of whether the IJ applied the correct legal standard was irrelevant where the IJ's findings were reviewable only to the extent that they had been adopted by the BIA. The court also held that because petitioner did not challenge the legal standard applied by the BIA, he did not raise an issue within the court's jurisdiction. Accordingly, the petition was denied.

Defendant Daniel Reyes-Alfonso to one count of illegal reentry after deportation in violation of federal law. Using the 2009 Sentencing Guidelines, the district court calculated an advisory prison range of forty-six to fifty-seven months. Then the court imposed a forty-six month term which represented the bottom of that range. Defendant appealed, arguing that his prior conviction in Colorado for "sexual contact-no consent" was not a forcible sex offense which could be used to enhance the court's sentence. Upon review of the trial court record and the applicable legal authority, the Tenth Circuit concluded that the district court did not abuse its discretion by imposing the forty-six month sentence. The Court held the lower court properly concluded that the Colorado conviction was a forcible sex offense under the sentencing guidelines. Accordingly, the Court affirmed the lower court's decision and Defendant's sentence.

Petitioner, age 14, and her mother, a biomedical researcher, entered the U.S. from Georgia on temporary visas in 1998. While their applications for permanent residency were pending, the mother violated the terms of her temporary visa by continuing to work after the visa expired. Both applications for residence were denied in light of the oversight. After the mother obtained a new temporary visa and reapplied for permanent residence, DHS determined that petitioner, who had turned 21 was no longer a derivative beneficiary of her mother and no longer eligible to apply for residence. When removal proceedings began, petitioner claimed that the Child Status Protection Act, 116 Stat. 930, operated to freeze her age as of the date of her motherâs original visa classification petition. The immigration judge and the Board of Immigration Appeals rejected the claim. The Seventh Circuit reversed. The CSPA applies to petitioner because her motherâs classification petition was approved prior to its enactment, and neither of her adjustment applications were decided prior to the enactment. The court noted that it is unclear whether the CSPA will help petitioner attain permanent residency.

Husband and wife, citizens of Mexico, came to the U.S. without valid documents in 1992 and 1996. They have three American-born children (ages five, ten, and eleven). In 1999, they traveled to Mexico to attend the funeral of husband's father. While there, wife, injured and pregnant, was restricted to bed rest and directed not to travel. They returned to the U.S. after 176 days. Religious worker visa applications were denied and the government instituted removal proceedings. In 2008, the couple applied for cancellation of removal under 8 U.S.C. 1229b(b)(1), claiming continuous physical presence for 10 years, absence of any criminal statutory bars, and exceptional and extremely unusual hardship on their children. An immigration judge denied the applications and granted voluntary departure. The BIA affirmed. The Third Circuit denied review. The couple failed to maintain continuous presence; intent to return is irrelevant--there is no scienter requirement and non-permanent resident aliens and permanent resident aliens seeking naturalization are not similarly situated groups for equal protection purposes. Neither the unratified American Convention on Human Rights nor the American Declaration of the Rights and Duties of Man is enforceable domestically.

Petitioner, a citizen of Thailand, was extradited for trial on drug charges in Illinois. Once in the U.S., she wrote letters to people in Thailand who were suspected of being involved in the drug trade in order to assist the Drug Enforcement Administration. The government moved to dismiss the charges against her and commenced removal proceedings. In 2006 the Seventh Circuit vacated an order by the BIA finding petitioner removable and ineligible for asylum and withholding of removal. On remand, petitioner was allowed to present evidence and to rebut testimony that she was involved in drug trafficking in Thailand; she attempted to establish entitlement to protection under the Convention Against Torture. The immigration judge issued an order finding petitioner removable; the BIA ordered that her appeal be dismissed. The Seventh Circuit denied appeal. The evidence produced at a full and fair hearing squarely linked petitioner to the serious crime of drug trafficking, barring her from the relief she sought.

Defendant was charged with crimes stemming from conduct involving her live-in nanny and housekeeper where defendant arranged for her to travel from her native Peru to the United States in 2006 by entering under a fraudulently-obtained visa to serve as a nanny and housekeeper. Defendant appealed her convictions for forced labor, related offenses of document servitude, and harboring an alien for financial gain. Defendant also appealed three sentencing enhancements and the restitution order. The court affirmed the convictions on all counts as supported by sufficient evidence. With respect to sentencing, the court declined to reach the merits of the first enhancement for visa fraud because it did not affect the guidelines offense level; affirmed the second enhancement holding defendant in forced labor for over one year; and affirmed the third enhancement for committing a felony "in connection with" forced labor. As for the restitution order which presented a question of first impression regarding whether child support arrearages belonged to a criminal defendant such that they could be assigned to a victim by restitution order while defendant's children were still minors, the court held that the minor child was the real party in interest to the accrued support. Therefore, any money that defendant received for child support did not belong to her but rather her children and it could not be assigned to the nanny/housekeeper. Accordingly, the judgment was affirmed in part and reversed in part.

Petitioner, a Mexican citizen, entered the United States in 1991 without inspection and was eligible for removal 8 U.S.C. 1182(a)(6)(A)(i), 1227(a)(1)). He married a woman who also lacks legal status. Their three daughters, ages 10-15, are citizens. They are not literate in Spanish and have health problems. In 2003, the Department of Homeland Security initiated removal proceedings. Petitioner sought cancellation of removal under 8 U.S.C. 1229b(b). The immigration judge concluded that removal would not result in exceptional and extremely unusual hardship to the citizen-children. The Board of Immigration Appeals dismissed an appeal. The Seventh Circuit denied review, first holding that petitioner had standing and that it had jurisdiction to consider whether removal would be unconstitutional with respect to the children, but rejecting the claim on the merits.

Petitioner, a citizen of Mexico, petitioned the court to review the decision of the BIA denying his petition for cancellation of removal and his motion to reopen removal proceedings so that he could pursue cancellation of removal after adjustment of status for which he had an application pending. As a preliminary matter, the court denied the government's motion to dismiss or transfer the matter on the basis of improper venue. The court held, however that petitioner raised no constitutional claims or questions of law and therefore, the court lacked jurisdiction to review the discretionary denial of cancellation of removal. The court further held that because the BIA based its denial of petitioner's motion to reopen on a determination that petitioner did not merit the discretionary relief of cancellation, the court also lacked jurisdiction to review the denial of that motion. Accordingly, the appeal was dismissed.

Petitioner, a native and citizen of India, appealed from the BIA's denial of his motion to reopen premised on ineffective assistance of counsel. Petitioner married a U.S. citizen during the pendency of his appeal from the IJ's denial of his affirmative asylum application. Petitioner was the beneficiary of an approved immediate relative visa, and sought to reopen so that he could apply for adjustment of status. The court held that the BIA's denial of petitioner's motion to reopen because counsel did not render ineffective assistance was an abuse of discretion. In addition, if petitioner's failure to depart was not "voluntary" under In re Zmijewska, he remained eligible for adjustment of status and counsel's failure prejudiced him. Accordingly, the court granted the petition for review and remanded for further proceedings.