Justia Immigration Law Opinion Summaries

Petitioner, a citizen of Israel, twice overstayed visitors' visas, then sought an adjustment of status based on an employer's approved petition for an alien worker. The application was denied because he refused to submit an affidavit detailing past attempts to enter and because he had been arrested attempting to smuggle another alien into this country. He was deemed inadmissible. His request to cancel removal was denied. The Board of Immigration Appeals and the Third Circuit rejected appeals. Removal may be cancelled if an inadmissible alien shows that he has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of application (8 U.S.C. 1229b). The petitioner's presence ended when he was refused readmission in 1999, after a short trip to Canada; his visa was cancelled because of his prior arrest. He signed a withdrawal of application for admission at that time, then obtained a passport under a new name and evaded immigration authorities in returning, indicating his awareness that he would not be allowed to return.

After being arrested and deported twice, the defendant was again arrested and entered a plea of guilty to unlawful re-entry under 8 U.S.C. 1326. The district court imposed a sentence of 96 months of incarceration; 59 months longer than the guidelines maximum. The Sixth Circuit remanded. Without holding a hearing, the district court again imposed a 96-month sentence. The Sixth Circuit again vacated and remanded. On a general remand, the defendant is entitled to a resentencing hearing at which he may exercise the right to be present and allocute as provided by the Federal Rules of Criminal Procedure; when a plenary resentencing hearing is held, the district court must state, in open court, the reasons underlying the imposed sentence. The court declined a request for assignment to a different trial judge.

Petitioner, a native and citizen of China, petitioned for review of two final orders of the Board of Immigration Appeals ("BIA") where the BIA denied him relief under former section 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. 1182(c), and denied him protection under the Convention Against Torture ("CAT"); and where the BIA denied petitioner's motion to reopen his CAT claim based on alleged changed country conditions and refused to sua sponte reopen his application for section 212(c) relief to consider his newly acquired equities. At issue was whether the BIA should have considered petitioner's value and service to the community in assessing all of the relevant concerns bearing on his eligibility under section 212(c) relief. Also at issue was whether the BIA abused its discretion in denying petitioner's motion to reopen his application for CAT relief based on changed country conditions. The court granted the petition for review with respect to petitioner's application of section 212(c) relief and remanded for consideration of all relevant factors where the BIA did not indicate that it had considered petitioner's value and service to the community. The court also held that the BIA did not abuse its discretion in denying petitioner's motion to reopen where the BIA diligently listed all the materials petitioner submitted in support of his application and discussed why the evidence was not persuasive, was speculative, or was of limited relevance.

Petitioner, a native and citizen of the Philippines, petitioned for review of the Board of Immigration Appeals' ("BIA") May 2005 order denying his claims for asylum and withholding of removal and its March 2006 order denying his claim for protection under the Convention Against Torture ("CAT"). At issue was whether the BIA properly denied petitioner asylum and withholding of removal, whether the BIA properly denied petitioner's claim for protection under the CAT, and whether petitioner's due process rights were violated. The court held that the BIA properly concluded that petitioner's drug-trafficking offense rendered him ineligible for asylum and withholding relief where the record did not compel the conclusion that probable cause was lacking. The court also held that the BIA properly denied petitioner protection under the CAT where substantial evidence supported the BIA's conclusion that he was not likely to be tortured upon return to the Philippines. The court further held that there was nothing in the record compelling the conclusion that certain witness testimony somehow precluded petitioner from presenting his claims for relief.

The petitioner overstayed her visa. At a removal hearing she asserted a Fifth Amendment claim and would not answer questions, but did not request asylum or indicate any fear of return to Pakistan. Following a removal order, she remained. She moved to reopen her case seven years later. The Board of Immigration Appeals rejected a "changed conditions" argument for asylum. The Seventh Circuit affirmed. The Board correctly assessed both the claim of changed conditions in Pakistan and the merits of the petitioner's case and did not deprive her of due process. Her claims concerning her status as an unmarried, "westernized" woman were too speculative.

Petitioner, a native and citizen of the Philippines, petitioned for review of an order of the Board of Immigration Appeals ("BIA") retermitting his application for a waiver of inadmissibility pursuant to the now-repealed section 212(c) of the Immigration and Nationality Act ("INA"). At issue was whether petitioner was eligible for 212(c) relief and whether petitioner was eligible for discretionary relief under INS v. St. Cyr. The court held that res judicata bound the BIA to the final decision of the district court which held that petitioner was eligible for discretionary relief under section 212(c) based on St. Cyr.

The petitioner, born in Germany in 1957, was admitted as a lawful permanent U.S. resident in 1961. In 1990 he entered a plea of guilty to two counts of aggravated sexual abuse of a minor. He was discharged from parole in 1993; 14 years later the Department of Homeland Security issued a notice to appear. An immigration judge found the petitioner ineligible for waiver under 8 U.S.C. 1182(c) and the Board of Immigration Appeals dismissed an appeal. The Seventh Circuit denied relief. A waiver must be denied if the alien is deportable on a ground that does not have a statutory counterpart in section 212 of the Act; an aggravated felony involving sexual abuse of a minor has no statutory counterpart. It is irrelevant that he could have been charged differently and may have believed, when he entered his plea, that he was eligible for waiver. The court rejected due process and equal protection arguments.

Petitioner, a native and citizen of India, appealed from the Board of Immigration Appeals' ("BIA") order affirming the Immigration Judge's ("IJ") denial of his claims for asylum where petitioner had allegedly lied about previously applying for asylum in Canada. At issue was whether the IJ's adverse creditability finding was not supported by substantial evidence in the record and that petitioner was denied due process of law by the denial of continuance so that he could put his father on the stand. The court held that substantial evidence on the record supported the adverse creditability decision, the need for corroboration, and the conclusion that petitioner had not borne his burden of proof to establish eligibility for asylum. The court also held that the IJ did not abuse her discretion in denying another continuance where the IJ was not required to grant a motion for continuance based upon speculations.

Petitioner, a native of China, appealed the Board of Immigration Appeals' ("BIA") order affirming the Immigration Judge's ("IJ") denial of her asylum and withholding of removal claims based upon an adverse credibility determination, as well as the IJ's decision that petitioner filed a frivolous asylum application. At issue was the distinction between an applicant for asylum whose testimony lacked creditability and one who had deliberately fabricated material aspects of her application. The court held that substantial evidence supported the BIA's denial of petitioner's asylum and withholding of removal claims based on petitioner's lack of creditability. The court also held that the issue of whether petitioner submitted a frivolous asylum application was a distinct question requiring a separate analysis and that, although the grounds cited for the adverse creditability determination overlapped to some extent with the grounds cited for the frivolous findings, the heightened requirements of the latter finding were not met.

Defendant pled guilty to having been found in the United States after deportation following a felony conviction and was sentenced to 37 months imprisonment followed by a three-year term of supervised release. Almost three years after the completion of defendant's prison sentence, he was arrested for criminal trespass. At issue was whether the district court had jurisdiction to revoke defendant's three-year term of supervised release after his arrest for criminal trespass. The court reasoned that resolution of the issue depended on the date on which defendant was released from imprisonment under 18 U.S.C. 3624(e) and held that defendant was released from imprisonment the moment his administrative detention began, i.e. the moment he was transferred from Bureau of Prisons custody to Immigration and Customs Enforcement custody to await deportation. However, because the record was not clear as to the exact date on which defendant was released from imprisonment, the court remanded for further fact-finding in order to determine the exact date on which defendant was released from imprisonment.