Justia U.S. 7th Circuit Court of Appeals Opinion Summaries

Articles Posted in Immigration Law
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In 2001, Ferreyra, 13 years old, entered the U.S. under the Visa Waiver Program, 8 U.S.C. 1187, which allows visitors to come to enter for 90 days. Ferreyra's mandatory waiver of the right to contest removal, except based on asylum, was signed by his parents. Ferreyra did not leave. In 2018, he was charged as removable for having overstayed. He declared that he wished to apply for asylum, withholding of removal and relief under the Convention Against Torture. Ferreyra claimed that, if removed to Argentina, he would face persecution based on his membership in a particular social group—his family. Ferreyra related that, when he was a child in Argentina, his uncle had sexually assaulted him, that his uncle still lived there, and that his uncle had warned that he would kill him if he told anyone about the assault. The IJ denied relief, finding that Ferreyra failed to show that his uncle had targeted him based on his family membership or that the government was unable or unwilling to protect him. The IJ denied Ferreyra’s request for cancellation of removal based on family hardship as unavailable in the asylum-only proceedings. The BIA ordered his removal. The Seventh Circuit denied a petition for review. Ferreyra did not present a case warranting relief because of a credible fear of persecution or torture. The waiver is valid; Ferreyra, therefore, cannot present a claim for cancellation of removal based on family hardship. View "Ferreyra v. Barr" on Justia Law

Posted in: Immigration Law
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Immigrants have historically been eligible for various public benefits and the receipt of those benefits, with limited exceptions did not jeopardize the immigrant’s chances of becoming a lawful permanent resident or citizen. The Department of Homeland Security (DHS) issued a new rule, intended to prevent immigrants whom the Executive Branch deems likely to receive any amount of public assistance, from entering the country or adjusting their status. The rule purports to implement the “public charge” provision of 8 U.S.C. 1182(a)(4). The Seventh Circuit affirmed a preliminary injunction against the rule’s enforcement in favor of Cook County, Illinois. The county had standing because the law threatened immediate financial harm because it would cause immigrants to forego preventative health care. The interests of the county are among those protected or regulated by federal law. There is “abundant evidence” supporting the county’s interpretation of the “public charge provision” as being triggered only by long-term primary dependence and that provision does not provide DHS unfettered discretion. The rule is unlikely to survive “arbitrary and capricious” review; it is unclear how immigration officials are to make “public charge” predictions. Cook County lacks legal remedies for the harms imposed by the rule. View "Cook County v. Wolf" on Justia Law

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Chen, a citizen of China, entered the U.S. without inspection in 2004. A “Notice to Appear,” dated April 2010, did not include the time and place for a hearing, Immigration officials sent Chen another document, dated July 2010, with that information. Chen appeared and sought asylum; the request was denied as untimely. In 2018, the Supreme Court held (Pereira) that a Notice that omits the time and place of the hearing does not comply with 8 U.S.C. 229(a)(1)(G)(i). Chen (untimely) moved to reopen her case to seek cancellation of removal, as an alien who has lived in the U.S. for a decade. Chen contended that, until the Pereira decision, she did not recognize that she might be eligible for that relief. An alien's accumulation of physical presence time is stopped by the commission of a crime or service of a Notice to Appear. Chen and her lawyer assumed that the April 2010 Notice stopped the accrual of time, but Chen argued that Pereira holds otherwise. The BIA denied the motion, reasoning that the required components of a Notice need not be in a single document if multiple documents collectively provide the required information; Pereira held that multiple notices cannot be combined with the effective date of the first document, but did not address what happens once all information has been provided. Time stops once the alien has all of the information required by statute. The Seventh Circuit denied a petition for review. Chen did not object to the charging documents for years, without any good excuse for delay. View "Chen v. Barr" on Justia Law

Posted in: Immigration Law
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The Attorney General imposed conditions on the Edward Byrne Memorial Justice Assistance Grant Program (Byrne JAG), 34 U.S.C.10151, which the primary source of federal criminal justice enforcement funding for state and local governments. The district court granted a preliminary injunction as to conditions that required that state or local officials honor requests to provide federal agents advance notice of the scheduled release of aliens in custody and that state or local correctional facilities give federal agents access to aliens in their custody. The Seventh Circuit upheld a nationwide injunction. The district court granted a permanent injunction and invalidated a condition requiring that state or local governments certify their compliance with 8 U.S.C. 1373, which prohibits them from restricting their officials from communicating information regarding the citizenship or immigration status of any individual to the INS, was unconstitutional but stayed the injunction to the extent that it applied beyond Chicago. The Seventh Circuit again held that the Attorney General cannot pursue the executive branch's policy objectives through the power of the purse or the arm of local law enforcement, rejecting the Attorney General’s assertion that Congress itself provided that authority in the language of the statutes. Chicago has determined that effective law enforcement requires the cooperation of its undocumented residents; such cooperation cannot be accomplished if those residents fear immigration consequences should they communicate with the police; and, local law enforcement must remain independent from federal immigration enforcement. The Byrne JAG grant was enacted to support the needs of local law enforcement to help fight crime, but “is being used as a hammer to further a completely different policy of the executive branch.” States do not forfeit all autonomy over their own police power merely by accepting federal grants. There is no reason to stay the application of the injunction. View "City of Chicago v. Barr" on Justia Law

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Manriquez-Alvarado, a citizen of Mexico, has repeatedly entered the U.S. illegally. He was ordered removed in 2008, 2010, 2012, 2014, and 2017, each time following a criminal conviction. He was found in the U.S. again in 2018 and was sentenced to 39 months' imprisonment for illegal reentry. 8 U.S.C. 1326(a), (b)(2). All of the convictions for reentry rest on the 2008 removal order. Manriquez-Alvarado argued that this order was invalid because immigration officials never had “jurisdiction” to remove him. His “Notice to Appear” did not include a hearing date. In 2018, the Supreme Court held (Pereira) that a document missing that information does not satisfy the statutory requirements. The Seventh Circuit affirmed the denial of his motion to dismiss. Pereira identifies a claims-processing doctrine, not a rule limiting immigration officials' jurisdiction. Older removal orders are pen to collateral attack if the alien exhausted any administrative remedies that may have been available; the deportation proceedings improperly deprived the alien of the opportunity for judicial review; and the order was fundamentally unfair, 8 U.S.C.1326(d). In 2008, Manriquez-Alvarado stipulated to his removal, waiving his rights to a hearing, administrative review, and judicial review. The statute does not ask whether administrative and judicial remedies would have been futile. It asks whether they were available. Manriquez-Alvarado’s removal was the result of his criminal conduct; he lacked permission to enter the U.S. at all. It is not unfair to order such an alien's deportation. View "United States v. Manriquez-Alvarado" on Justia Law

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The Center lodged a FOIA request with the Department of Justice (DOJ) for records of communications between the Attorney General, the Office of the Attorney General and any Office of Immigration Litigation or Office of the Solicitor General lawyers related to 11 certified cases decided in 2002-2009. DOJ produced about 1,000 pages but withheld 4,000 pages, citing FOIA Exemption 5, which allows the withholding of agency memoranda not subject to disclosure in the ordinary course of litigation, 5 U.S.C. 552(b)(5). Exemption 5 encompasses the attorney work product, attorney-client, and deliberative process privileges. DOJ submitted a Vaughn index describing each document withheld, identifying documents reflecting discussions between attorneys working within different offices of issues related to immigration cases under consideration or on certification for decision by the Attorney General. The Center unsuccessfully argued that the documents contained ex parte communications outside Exemption 5's scope because the DOJ attorneys’ eventual litigation role taints the advice they provide the Attorney General at the certification stage; removal proceedings end in federal court litigation where those same attorneys are opposite the immigrant. The Seventh Circuit affirmed. The Office of Immigration Litigation and Solicitor General attorneys do not hold interests adverse to the noncitizen at the stage at which the Attorney General certifies a case for decision. “ To conclude otherwise would chill the deliberations that department and agency heads like the Attorney General undertake in confidence to execute the weighty responsibilities of their offices.” View "National Immigrant Justice Center v. United States Department of Justice" on Justia Law

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Omorhienrhien came to the U.S. as a visitor from Nigeria in 2008 and began a relationship with Harris, a citizen. They married months later. Harris filed Form I-130 to give Omorhienrhien a path to residency based on their marriage. USCIS denied the petition upon discovering that Omorhienrhien had been legally married to another woman in Nigeria when he married Harris, though the Nigerian marriage had since ended. Omorhienrhien and Harris remarried and submitted a new petition. Omorhienrhien received a two-year conditional permanent residency in 2011, 8 U.S.C. 1186a(a)(1). Omorhienrhien and Harris divorced about six months after he obtained that status. Because Harris did not join him in a petition to remove the conditions, Omorhienrhien unsuccessfully sought a hardship waiver. In removal proceedings, an IJ rejected his claim that the marriage was in good faith. The divorce decree stated that the parties were married in December 2008 and had been separated since July 2009; there was a lease indicating that the two lived separately. The IJ noted the lack of any objective evidence that the couple married with the intent to share a life together. The BIA dismissed his appeal. The Seventh Circuit denied a petition for review, finding no legal errors. The IJ applied the correct standard of proof. View "Omorhienrhien v. Barr" on Justia Law

Posted in: Immigration Law
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Alvarez-Espino, born in Mexico in 1970, entered the U.S. in 1996 without permission. Since then he and his wife have had four children, and he supports his family by running an upholstery business. In 2002, two men robbed him at gunpoint at a Chicago gas station. Five years later, he was arrested for drunk driving and, following a probation violation, ended up with a one-year prison term. In removal proceedings, 8 U.S.C. 1182(a)(6)(A)(i), his lawyer failed to realize that Alvarez-Espino had a chance at receiving a U visa for his assistance in solving the 2002 robbery. Alvarez-Espino changed lawyers, but after protracted proceedings, the Board of Immigration Appeals denied multiple requests for relief, leaving Alvarez-Espino at risk of removal and having to await a decision on his U visa application from Mexico. The Seventh Circuit denied his petition for review. In denying relief, the Board held Alvarez-Espino to an unduly demanding burden on his allegation of ineffective assistance of counsel but the law is equally clear that Alvarez-Espino’s ability to continue pursuing a U visa means that he cannot show prejudice from his attorney’s performance. View "Alvarez-Espino v. Barr" on Justia Law

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Rocha entered the U.S. with her sons and presented herself, asserting that she had fled from a Mexican cartel. After passing a credible‐fear interview, she was paroled into the U.S. The family stayed with Torres, in Chicago. Torres was a violent drunk. He threatened and abused Rocha, once brandishing a machete. Neighbors witnessed the attack and called the police. Rocha and her sons relocated to Miami. Chicago police asked her to return. She did so and stayed in shelters for victims of domestic violence while cooperating with the police and testifying at Torres’s trial. Rocha’s cooperation entitled her to apply for a nonimmigrant “U visa,” which allows violent crime victims who provide assistance to law enforcement to remain in the U.S. for four years, 8 U.S.C. 1101(a)(15)(U). With respect to Rocha’s asylum petition, an IJ found Rocha removable but granted a continuance. Days after Rocha submitted her U‐visa application, the immigration court moved up the date of her hearing, leaving Rocha with only two days to prepare. The IJ found her ineligible for relief. Rocha’s counsel did not mention the U‐visa petition at the hearing, thinking that it would be pointless without application receipts. The BIA affirmed the denial of her applications for asylum, withholding of removal and protection under the CAT and summarily rejected her request for a remand to seek a continuance to pursue the U visa. The Seventh Circuit granted Rocha’s petition for review; she is entitled to a remand for the purpose of deciding whether her pending U‐visa application entitles her to a continuance. View "Guerra-Rocha v. Barr" on Justia Law

Posted in: Immigration Law
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Meriyu, now 49 years old, is an Indonesian citizen who is of Chinese descent and of the Buddhist faith. She came to the U.S. in 2000 on a nonimmigrant visa. Meriyu claims she was prompted to leave by her mistreatment, based on her religion and ethnicity, and by violence in Indonesia. In 2002, charged with removability under 8 U.S.C. 1227(a)(1)(B), Meriyu sought relief from removal based on fear of persecution on account of race and religion. She was ordered removed after she failed to appear at a hearing; 14 years later, she moved to reopen the proceedings. Meriyu is married and has a 12-year-old child. She claims she did not appear because she had sustained injuries to her ankle and foot. The BIA upheld an IJ’s ruling that the motion was untimely and that she could not show a material change in country conditions since the hearing. Her two subsequent motions to reopen were also denied. The Seventh Circuit denied a petition for review. When compared to the 2003 conditions described in the State Department reports, current conditions in Indonesia do not reflect any “new threshold” of human rights abuses. Meriyu’s evidence did not suggest any prospect of persecution if she returned to Indonesia. View "Meriyu v. Barr" on Justia Law

Posted in: Immigration Law