Articles Posted in Immigration Law

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Dhakal, a member of the Nepali Congress political party, which is targeted by the Maoist party, worked with the U.S. Agency for International Development. In 2012, he received a letter from the Maoists, ordering him to cease his activities. Weeks later, four men stopped him, told him that the Maoist party had sent them, beat him and smashed his motorbike, saying “next time, he will be finished.” A ranger discovered Dhakal. A newspaper reported the attack. Dhakal continued his activities and received more threats In 2013, Dhakal arrived in the U.S. after the University of Rhode Island invited him to participate in a course in nonviolent conflict resolution. Maoists went to his home and threatened his wife, who fled with their children. Dhakal sought asylum. While Dhakal’s application remained pending, Nepal suffered an earthquake and was designated for Temporary Protected Status (TPS), so that its eligible nationals would not be removed and could receive employment authorization. Dhakal' TPS was twice extended. Dhakal is in lawful status and manages a Wisconsin gas station. In 2016, an asylum officer found Dhakal not credible and that Dhakal had not shown a reasonable possibility of future persecution. A final denial letter stated that, because of Dhakal’s TPS status, his asylum application would not be referred for adjudication in removal proceedings. Dhakal filed suit under the Administrative Procedures and Declaratory Judgment Acts, arguing that he has exhausted all administrative remedies presently available. The Seventh Circuit affirmed dismissal. The challenged decision is not a final agency action so Dhakal is not entitled to relief under the APA. The statutory scheme for adjudication of asylum claims must be allowed to take its course. View "Dhakal v. Sessions" on Justia Law

Posted in: Immigration Law

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Cortina-Chavez, a citizen of Mexico, entered the U.S. on an unknown date and place, without inspection. He was arrested for DUI in 2010. In subsequent removal proceedings, Cortina-Chavez sought cancellation of removal, asylum, withholding of removal, and protection under the Convention Against Torture. An IJ denied cancellation of removal because Cortina-Chavez failed to establish that he had been continuously, physically present in the U.S. for 10 years; denied asylum because he did not submit his application within one year of arrival, and did not come within any exception; denied withholding of removal because Cortina-Chavez failed to demonstrate that he faced persecution in Mexico; and denied his CAT application because he did not establish that it was more likely than not that he would be subject to torture in Mexico. Cortina-Chavez's counsel filed a Notice of Appeal, listing seven “initial arguments,” each stated in conclusory fashion, with no citations, indicating his intent to file a brief. Cortina-Chavez did not timely file a brief. The BIA summarily dismissed his appeal and, through a single member, denied a motion for reconsideration as not identifying any error in law or fact, or any argument that was overlooked. Counsel failed to explain why the appeal was not subject to summary dismissal; did not explain why he never filed the promised brief; cited no authority for requesting a three-member panel; and did not show why his motion should be granted sua sponte. The Seventh Circuit dismissed his petition for review of the BIA’s refusal to grant sua sponte review of its prior decision and denied the remainder of the petition, noting Cortina-Chavez challenged only one of the two independent and adequate reasons for summary dismissal. View "Cortina-Chavez v. Sessions" on Justia Law

Posted in: Immigration Law

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Macias, a six-year-old citizen of Mexico, entered the U.S. as a lawful permanent resident in 1976. In 1990, he was convicted of attempted aggravated criminal sexual assault, aggravated battery, and burglary. While in prison, he was convicted of possession of a weapon by a felon. An IJ ordered Macias removed, prohibiting Macias from returning to the U.S. for five years unless he obtained permission from the Attorney General, In 1995, Macias reentered, purportedly to care for his young son. He claims that border officers waved him into the U.S. without questioning him or asking to see travel documents. For 21 years, he made no attempt to bring his immigration status into legal compliance In 2016, Macias was arrested for aggravated DUI. DHS served him with a Notice of Intent/Decision to Reinstate Prior Order of Removal. His counsel argued that Macias’s reentry was “procedurally irregular” but lawful because Macias presented himself for inspection and did not attempt to deceive anyone. An ICE deportation officer reinstated the removal order. Prosecutorial discretion was denied due to the serious nature of Macias’s past crimes, his admitted membership in the Latin Kings, and his recent arrest. The Seventh Circuit denied a petition for review. The statute providing for reinstatement for aliens who have reentered “illegally” after previously having been removed is not ambiguous. A person who reenters without the consent of the Attorney General during the required period reenters illegally, violating 8 U.S.C. 1326(a) and 8 U.S.C. 1182(a)(9)(A). View "Mendoza v. Sessions" on Justia Law

Posted in: Immigration Law

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Gnatyuk entered the U.S. on a visitor’s visa in 2003. His wife, Melnik, arrived a year later but was apprehended on entry because she presented a fraudulent passport. She requested asylum and passed a credible fear interview. The government later denied her application and placed her in removal proceedings. Gnatyuk sought asylum in 2010, but the government also denied this application, placed him in removal proceedings, and consolidated the cases. Before coming to the U.S., the two operated a clothing business in Ukraine. Melnik testified that, during that period, “racketeers” victimized them through extortion, beat Gnatyuk several times, and once set his car on fire. Local police did nothing. They closed their business and lived separately to ensure Melnik’s safety and the safety of her daughter, who still lives in Ukraine. Gnatyuk’s brother‐in‐law was a recent victim of extortion and beating; Melnik described her hometown as “destroyed.” Melnik owes money for the false Ukrainian passport and testified that her family had faced “constant threats” after her departure. The two had built a business in the U.S., comprising 15 trucks and drivers. The Seventh Circuit denied relief after the BIA affirmed an order of removal. The couple did not demonstrate membership in a cognizable social group nor did they establish a nexus between small‐business‐group membership and their targeting by the criminal group. View "Melnik v. Sessions" on Justia Law

Posted in: Immigration Law

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Ramos-Braga's São Paulo neighborhood was controlled by a gang (PCC), which tried to recruit him and attacked him many times. Police did not help but beat him when he made reports. After a beating hospitalized him for two weeks, Ramos-Braga stopped attending college and spent months moving around. When he returned home, a PCC member shot him. Months later, Ramos-Braga was admitted to the U.S. on a student visa. He married a U.S. citizen, but Ramos-Braga estimated that his wife physically abused him over 100 times. Seven years after he arrived, Ramos-Braga was charged as removable, 8 U.S.C. 1227(a)(1)(B). He sought special-rule cancellation of removal for battered spouses and withholding of removal under 8 U.S.C. 1231(b)(3) and the Conviction Against Torture. Meanwhile, Ramos-Braga and his wife got into a fight. He was convicted of battery and, after asking his wife not to testify, witness intimidation. DHS added a charge under 8 U.S.C. 1227(a)(2)(A)(ii) for having been convicted of crimes involving moral turpitude. The BIA affirmed a removal order. During his appeal, his attorney ended the representation. Ramos-Braga continued pro se. After his petition was denied, Ramos-Braga, still pro se, moved the BIA to reopen proceedings. The motion was denied as untimely, but Ramos-Braga maintains he never received notice of this decision. Ramos-Braga filed a second pro se motion to reopen, which was denied as untimely and successive. The BIA rejected arguments that equitable tolling for ineffective assistance of counsel and changed conditions in the country of removal excused his noncompliance. The Seventh Circuit affirmed. The BIA did not abuse its discretion in finding that neither exception applied. View "Ramos-Braga v. Sessions" on Justia Law

Posted in: Immigration Law

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Yahya entered the U.S. on a six-month tourist visa in either 2000 or 2001 and overstayed. According to Yahya, in 2003, he voluntarily appeared to register in the National Security Entry-Exit Registration System and was placed in removal proceeding (8 U.S.C. 1227(a)(1)(B)). He accepted an order of voluntary departure but did not depart. He claims he did not want to put his eight-month-old, American-born son on a 24-hour flight to Indonesia. More than 12 years later, Yahya moved to reopen his removal proceedings. Because the 90-day deadline had passed, he cited an exception, raising a claim for asylum “based on changed country conditions arising in the country of nationality,” 8 U.S.C. 1229a(c)(7)(C)(i), (ii), claiming that he feared that his “moderate” Islamic faith would make him a target for “radical fundamentalist Islamic groups” in Indonesia. The BIA upheld the IJ’s denial of the motion. The Seventh Circuit denied a petition for review. The BIA properly compared objective evidence of religious violence in Indonesia from 2003, the time of Yahya’s original proceedings, to the evidence he presented now. He has evidence of only one attack against moderate Muslims between 2003 and 2016, which is not sufficient to show a material change in country conditions. View "Yahya v. Sessions" on Justia Law

Posted in: Immigration Law

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Perez grew up in Honduras. When Perez was 14, a street gang told him to join or “suffer the consequences.” Perez moved. Later that year, the gang confronted Perez again. Perez ran away and dropped out of school. Later, Perez witnessed the murder of a friend whose brother belonged to a rival gang. Perez was beaten and an unidentified person fired shots in the direction of Perez and his friends. Perez reported these events to the police, who did nothing. In 2008 Perez was admitted to the U.S. as a lawful permanent resident. He returned to Honduras in 2010 for a vacation. He attended a neighborhood festival and was recognized by gang members. Perez ran and cut short his vacation. Three years later, in Indiana, Perez pleaded guilty to engaging in sexual misconduct with a minor. An IJ found Perez removable for having committed an aggravated felony, 8 U.S.C. 1101(a)(43)(A), and noted that Perez was ineligible for asylum and withholding of removal because his conviction was a “particularly serious crime.” He sought deferral of removal under the Convention Against Torture. Family members testified about their fear that Perez would be killed if he were removed to Honduras. The BIA affirmed the denial of relief. The Seventh Circuit remanded. The BIA erred by truncating the crucial factual inquiry about Perez’s risk of torture if he is returned to Honduras and by asking the wrong question with respect to internal relocation. View "Perez v. Sessions" on Justia Law

Posted in: Immigration Law

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The Byrne Memorial Justice Assistance Grant Program allocates substantial funds annually to provide for the needs of state and local law enforcement, including personnel, equipment, training. In 2017, the Attorney General tied receipt of the funds to the recipient’s compliance with conditions. Chicago, a “sanctuary city,” argued the conditions were unlawful and unconstitutional. The district court agreed and enjoined, nationwide, the enforcement of a condition mandating advance notice to federal authorities of the release date of persons in state or local custody who are believed to be aliens and a condition requiring the local correctional facility to ensure agents access to such facilities to meet with those persons. Compliance with those conditions would require the allocation of state and local resources, including personnel. The Seventh Circuit affirmed, noting that it was not assessing “optimal immigration policies” but enforcing the separation of powers doctrine. The statute precisely describes the formula through which funds should be distributed to states and local governments and imposes precise limits on the extent to which the Attorney General can deviate from that distribution. It “is inconceivable that Congress would have anticipated" that the Attorney General could abrogate the distribution scheme and deny funds to states and localities that would qualify under the Byrne JAG statutory provisions, based on a decision to impose conditions—the putative authority for which is provided in another statute (34 U.S.C. 10102(a)(6)). View "City of Chicago v. Sessions" on Justia Law

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Cruz-Martinez, a Mexican citizen, came to the U.S. illegally in 1993. He was removed in 2002 under a stipulated removal order for “Rocha-Martinez,” which was an alias. Cruz-Martinez states that in 2005 armed men who had fought with his brothers threatened him at his mother’s home in Mexico while looking for his brother; the police did nothing. Cruz-Martinez returned to the U.S. without permission. He acquired criminal convictions for aggravated assault, possession of cocaine, and obstructing police. Cruz-Martinez married a U.S. citizen with whom he has a child and is a step-father to her other children. All of his siblings and his mother now reside in the U.S. Some, including his mother, have gone back and forth to Mexico without incident; none have sought protection from persecution. In 2014, DHS reinstated the 2002 removal order. The Chicago Asylum Office made a positive reasonable-fear determination. The IJ denied Cruz-Martinez’s applications for asylum and for withholding of removal under the Convention Against Torture, finding no clear probability of persecution or torture. The Board affirmed, denying Cruz-Martinez’s request for consideration of new evidence concerning the State Department’s travel warning and news articles about conditions in Mexico. The Seventh Circuit denied his petition for review, upholding the reinstatement of the removal order, the refusal to consider new evidence, and findings that Cruz-Martinez was ineligible for asylum and not eligible for CAT protection. View "Cruz-Martinez v. Sessions" on Justia Law

Posted in: Immigration Law

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Melesio‐Rodriguez was brought to the U.S. from Mexico as a child. She became a lawful permanent resident in 1998, at age 19. She was convicted of battery and attempted possession of cocaine in 2003 and of attempted burglary in 2013. DHS charged her as removable under 8 U.S.C. 1227(a)(2)(B)(i)) and alleged that she had failed to disclose a cocaine‐possession conviction that occurred before she was granted permanent resident status. An immigration judge found Melesio‐Rodriguez removeable. She told the judge she did not wish to apply for protection but expressed interest in applying for a U‐visa, for which she was potentially eligible as a victim of domestic violence. The judge stated that only USCIS had jurisdiction over U‐ visas and that he would order removal. Melesio‐Rodriguez said she understood “really clearly” and confirmed twice that she wished to accept the order as final rather than reserve an appeal. Melesio‐Rodriguez then retained counsel and unsuccessfully moved for reconsideration, arguing that the IJ had not fully apprised her of her rights; one of her convictions was not a “conviction” for immigration purposes; she was eligible for a U‐visa; she feared torture in Mexico; and the removal proceedings violated the Fifth and Eighth Amendments. The Seventh Circuit dismissed her petition for review. Melesio‐Rodriguez is a criminal alien and the question of her waiver of appeal is factual in nature, so the court lacked jurisdiction, 8 U.S.C. 1252(a)(2)(C). View "Melesio-Rodriguez v. Sessions" on Justia Law

Posted in: Immigration Law