Justia Immigration Law Opinion Summaries

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.

Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's decision dismissing his appeal from an IJ's order finding him removable and denying his application for cancellation of removal. Petitioner challenged the BIA's finding that his six convictions for "willfully manufacturing, intentionally selling, and knowingly possessing for sale more than 1,000 articles bearing a counterfeit trademark," in violation of California Penal Code 350(a)(2), constituted an aggravated felony as an "offense relating to... counterfeiting." Petitioner also maintained that the generic offense of counterfeiting referred only to the imitation of currency and that this conviction under section 350 did not require proof of his intent. The court held that the definition of aggravated felony extended to convictions for the unauthorized imitation of trademarks. The court also rejected petitioner's remaining argument that section 350 did not incorporate "an intent to defraud" as an essential element of the offense because "[t]he commission of the crime necessarily defrauds the owner of the mark, or an innocent purchaser of the counterfeit items, or both," and the court had "difficulty distinguishing such intent from a general intent to defraud[.]" Accordingly, the petition for review was denied.

The three defendants in this consolidated case were Mexican nationals who were living in the United States illegally. At issue was what evidentiary showing must a defendant, charged with being found in the United States after previously having been deported, 8 U.S.C. 1326(a), make before a district court was obliged to consider his request for a lower sentence to account for the absence of a fast-track program in that judicial district. The court held that a district court need not address a fast-track argument unless defendant had shown that he was similarly situated to persons who actually would receive a benefit in a fast-track district. Until defendant met these preconditions, his "disparity" argument was illusory and could be passed over in silence. Accordingly, the court concluded that the fast-track arguments made by all three defendants were illusory and could be passed over in silence. Therefore, the court affirmed each sentence; one defendant's sentence, however, was modified to clarify that his participation in the Inmate Financial Responsibility Program was voluntary.

Petitioner, a lawful permanent resident, petitioned the court for review of the denial of his application for cancellation of removal. At issue was whether petitioner's second conviction for domestic battery qualified as a "crime of violence" under 18 U.S.C. 16(a) and thus was an aggravated felony prohibiting him from applying for cancellation. The court held that convictions for domestic battery for causing bodily harm to petitioner's wife was a crime of violence in light of LaGuerre v. Mukasey and United States v. Upton. Therefore, the court denied the petition for review.

Defendant pleaded guilty to one count of being an alien found in the United States following a prior removal and sentenced to 77 months imprisonment. At issue was whether the district court procedurally erred in calculating defendant's criminal history under the Guidelines by erroneously finding that the date his present offense commenced was October 1, 2002. Also at issue was whether the district court imposed a substantively unreasonable sentence. The court held that the district court did not clearly err where the unrebutted evidence reasonably supported a finding that defendant last reentered the United States on October 1, 2002 and that he remained in the United States until he was apprehended on January 7, 2010. The court also held that the district court did not impose a substantively unreasonable sentence where the record reflected that the district court considered all the 18 U.S.C. 3553(a) factors; noted that defendant's "serious criminal history" and the need for deterrence justified the sentence; and addressed certain arguments made by defendant. Accordingly, the judgment of the district court was affirmed.