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

Articles Posted in Immigration Law
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Lopez was born in Mexico in 1974, His mother, born in Mexico, acquired U.S. citizenship at birth through her mother. Mother entered the U.S. in 1978 and received a certificate of citizenship in 1990. Lopez was admitted to the U.S. as a lawful permanent resident in 1985. In 2009, he was convicted of drug crimes and was sentenced to 122 months’ imprisonment. In 2018, DHS began removal proceedings, alleging that Lopez was removable under 8 U.S.C. 1227(a)(2)(A)(iii); (a)(2)(B)(i). Lopez maintained that the law at the time of his birth (8 U.S.C. 1401; 1431–32) that prevented him from automatically deriving citizenship violated the Equal Protection Clause. The law denied automatic citizenship to children born abroad to one citizen non-resident parent and one noncitizen parent unless the citizen parent met a physical presence requirement. An IJ declined to consider the equal protection challenge and ruled that Lopez was removable. The BIA affirmed. The Seventh Circuit denied a petition for review, finding that the statute has a rational basis, so there is no equal protection violation. Lopez did not maintain that he is a member of a suspect or protected class or that his fundamental rights were at stake. The legislation was aimed at preventing the perpetuation of U.S. citizenship by citizens born abroad who remain there, or who may have been born in the U.S. but who go abroad as infants and do not return to this country. View "Ramos v. Barr" on Justia Law

Posted in: Immigration Law
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Malukas, a citizen of Lithuania, entered the U.S. in 1992 on a tourist visa and did not leave when it expired. In 1995 he was convicted of weapons-related felonies. Malukas applied for discretionary relief from removal as the spouse of a U.S. citizen. The Board of Immigration Appeals denied relief. His motion for reconsideration was denied in 2003. Malukas did not seek judicial review but remained in the U.S. His Lithuanian passport had expired; Lithuania would not issue new documents. In 2018 Malukas filed a second motion to reconsider and a motion to reopen, contending that the removal order is invalid because the proceeding began with a “Notice to Appear” that did not include a hearing date and time. The date and time were furnished in a later document. He also contended that he had been rehabilitated and that Lithuania’s failure to accept his return justified discretionary relief. The Board denied this motion. Malukas asked the Board to reopen sua sponte because time-and-number limits do not restrict the Board’s authority to act independently. The Seventh Circuit denied relief, noting that reopening would not be sua sponte but would be a response to the motion, subject to the time-and-number limits and that the Board’s discretionary authority is not subject to judicial review. The rehabilitation and passport arguments are substantive and the Board adequately stated its reasons. View "Malukas v. Barr" on Justia Law

Posted in: Immigration Law
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Zacahua, a citizen of Mexico, lived as an unauthorized alien in the U.S. for over 20 years. Although he was employed by a Hilton hotel, Zacahua also transported heroin. Zacahua and codefendants were indicted for conspiracy to distribute heroin. During Zacahua’s bond hearing, the government invoked Zacahua’s immigration status to argue that he was a serious flight risk because he faced the likelihood of removal. The court held a Federal Rule of Criminal Procedure 11 hearing, advised Zacahua that he faced a 120-month mandatory minimum sentence, and informed Zacahua of his rights and the potential consequences of a felony conviction. The court never told Zacahua that he might be removed from the U.S. and denied future admission as a consequence of his guilty plea, as Rule 11(b)(1)(O) requires. During an interview with a Probation Officer, Zacahua acknowledged his unauthorized status and that he faced deportation. He expressed hopes of working at a Hilton hotel in Mexico and of caring for his ailing parents. At his subsequent sentencing hearing, the court acknowledged the likelihood of deportation and discussed Zacahua’s employment prospects in Mexico. Zacahua spoke of returning to Mexico as quickly as possible. The court sentenced him to the mandatory minimum: 120 months. The Seventh Circuit rejected his attempt to withdraw his plea based on the Rule 11 violation. Zacahua does not demonstrate a reasonable probability that, had the court provided the warning, he would not have pleaded guilty. View "United States v. Zacahua" on Justia Law

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Odei, a Christian pastor in Ghana and a founding member of Spirit of Grace, a U.S. nonprofit religious group, is a Ph.D. candidate in an online educational program sponsored by a Tennessee university. Spirit of Grace invited him to visit the U.S. to participate in religious activities. Odei also planned to speak at churches and youth groups, perform missionary work, and meet his academic advisors. Odei obtained a B-1/B-2 visa from the U.S. Consulate in Ghana. When Odei arrived in Chicago, Customs agents questioned him, determined that his visa was invalid for his intended missionary and academic purposes, found him inadmissible under 8 U.S.C. 1182(a)(7), and canceled the visa. They did not immediately remove him because he answered “yes” when asked if he feared returning to Ghana. He was held in the McHenry County Jail. A week later Odei dropped his asylum claim. DHS allowed Odei to withdraw his application for admission and return to Ghana. Odei and Spirit sued DHS, citing the Immigration and Nationality Act (INA) and the Religious Freedom Restoration Act. The judge dismissed, citing 8 U.S.C. 1252(a)(2)(A), which bars judicial review of any “order of removal pursuant to” the expedited removal procedure in 8 U.S.C. 1225(b)(1)(A)(i). The Seventh Circuit affirmed. Although Odei was not subjected to expedited removal, an “order of removal” refers to both an order to remove and an order that an alien is removable. Odei challenged the latter; the jurisdictional bar applies. View "Odei v. United States Department of Homeland Security" on Justia Law

Posted in: Immigration Law
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Corral, a native of Mexico, was admitted to the U.S. as a lawful permanent resident in 1994. In 1999, he applied for naturalization. He became a U.S. citizen in 2000. He was then indicted on seven counts of aggravated criminal sexual abuse. Less than five months after becoming a U.S. citizen, Corral pleaded guilty to Aggravated Criminal Sexual Abuse, under Illinois law, which then stated, “sexual conduct with a victim who was under 18 years of age when the act was committed and the accused was a family member.” In 2017, the government sought to revoke Corral’s citizenship on the grounds that he obtained his citizenship illegally and by willful misrepresentation or concealment of a material fact, 8 U.S.C. 1451(a), in that Corral lacked good moral character because he committed a crime involving moral turpitude within the statutory period of five years preceding his application for citizenship. The Seventh Circuit affirmed a ruling in favor of the government, rejecting defenses of “laches” and selective prosecution. Whether Corral made a willful misrepresentation or concealed a material fact is irrelevant because these factors do not relate to the ground for Corral’s denaturalization. View "United States v. Valenzuela" on Justia Law

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Hernandez-Garcia’s husband entered the U.S. illegally in 2001. He sent her money in Guatemala, so she had a higher standard of living than her neighbors. In 2013, her oldest son left for the U.S. She began receiving anonymous notes asking for money and threatening her and her younger children. Hernandez-Garcia went to the police, who ignored her. The family left Guatemala. At the U.S. border, they were served with Notices to Appear. An immigration judge denied their applications for asylum, withholding of removal, and protection under the Convention Against Torture. Hernandez-Garcia admitted that she told an officer that she did not fear persecution or torture and that she had left Guatemala because of poverty. The judge found the threats not sufficiently imminent or severe to be more than harassment and that Hernandez-Garcia failed to demonstrate a nexus between that harm and a protected ground, 8 U.S.C. 1101(a)(42)(A)). Perceived or actual wealth, alone, does not form the basis of a particular social group. The BIA affirmed, rejecting Hernandez-Garcia’s argument that the proceedings were jurisdictionally barred because of the absence of date-and-place information in the Notice; she received a later notice with that information and appeared at several hearings. The Seventh Circuit denied a petition for review. Hernandez-Garcia was not prejudiced by the omission of information in her Notice to Appear. “It is too big a leap from the indifference the police demonstrated ... to a finding that public officials would either torture her or stand by while others did.” View "Hernandez-Garcia v. Barr" on Justia Law

Posted in: Immigration Law
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Petitioner testified at her asylum hearing that she believed that E.G., the father of her son, is a member of the Mexican cartel, La Familia Michoacana. Petitioner ended her relationship with E.G. in July 2012, fearing that opposing cartel members might harm her or her children. She moved to her mother’s house, two hours away, while pregnant with E.G.’s child. Petitioner saw little of E.G. until June 2013, when he started occasionally driving by her home and the restaurant where she worked. When she declined to return to him, E.G. threatened to take her sons away—“the bad way” if necessary. Petitioner moved but continued to see E.G. driving by her apartment late at night. Local police told her there was nothing they could do. She fled to the U.S. with her children. Petitioner has not spoken to E.G. since June 2013 but E.G. sent his relatives to her mother’s house to ask about her whereabouts. Petitioner argued that she was entitled to asylum because she fears persecution as the mother of a cartel member’s child and as a Mexican woman who cannot leave her relationship. The IJ and BIA denied relief. The Seventh Circuit denied a petition for review. Petitioner’s testimony did not establish past persecution or a well-founded fear of future persecution and an inability to relocate in Mexico to avoid persecution. Petitioner did not establish membership in either social group she identified. She did leave her relationship; her belief that E.G. was a cartel member was speculative. View "N. Y. C. C. v. Barr" on Justia Law

Posted in: Immigration Law
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Vyloha, a Czech citizen, entered the U.S. in 1998 and overstayed his visa. In 2006, after he was convicted of DUI, DHS charged Vyloha with removability, 8 U.S.C. 1227(a)(1)(B). The notice indicated that the hearing’s time and date were to be determined. Days later, a notice was mailed to Vyloha’s attorney setting the date. On October 13, 2006, Vyloha appeared before and presented a letter from his counsel, requesting rescheduling. Vyloha indicated that he preferred to proceed in English. The IJ personally served Vyloha with notice of his rescheduled hearing in May 2007 and orally warned him about the consequences of failing to appear. Vyloha did not appear at that hearing. The IJ ordered him removed in absentia. Shortly thereafter, police arrested Vyloha for driving with a suspended license. While serving a sentence for that offense, Vyloha learned that there was an ICE detainer on him. ICE did not take him into custody at the conclusion of his sentence, but, in 2017, apprehended Vyloha. He moved to reopen his proceedings and to rescind the in absentia order, claiming he had no notice of the 2007 hearing due to his limited English and exceptional circumstances due to his counsel’s ineffectiveness. The BIA upheld the denial of that motion. Vyloha unsuccessfully sought reconsideration based on the Supreme Court’s 2018 "Pereira" decision, arguing that because his initial Notice lacked the specific date, the immigration courts did not have subject-matter jurisdiction. The Seventh Circuit agreed. Vyloha could have argued that his Notice was statutorily deficient before the Pereira decision, so his challenge is untimely. Given his personally-served notice and appearance at a hearing, Vyloha cannot show prejudice that would excuse his forfeiture. View "Vyloha v. Barr" on Justia Law

Posted in: Immigration Law
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Gawron, a Polish citizen who has lived in the U.S. for 17 years, and her husband, Motyka, were involved in an elaborate credit card fraud scheme. Gawron pleaded guilty to wire fraud, 18 U.S.C. 1343. The presentence investigation report noted that the court “ordinarily” should not impose supervision on a defendant who would likely be removed from the country after her release from prison, U.S.S.G. 5D1.1(c) but recommended a discretionary condition prohibiting Gawron from leaving the “jurisdiction” where she is being supervised without permission. Gawron objected to other conditions of supervised release, but did not argue that supervised release should be skipped because of her likely removal, nor did she contest the condition restricting her movement. Gawron’s counsel stated that immigration proceedings had started and that her deportation was likely. The court imposed a below-Guidelines prison sentence of 12 months and one day, with two years of supervision. The court granted Gawron’s request to delay reporting to prison until Motyka’s release, for the sake of their children. In the meantime, Gawron would be subject to the conditions of her pretrial supervision. The Seventh Circuit affirmed, rejecting a challenge to the imposition of any term of supervised release because she is likely to be deported after her imprisonment. Her argument that the condition confining her to the district where she is being supervised is flawed for containing no scienter requirement would have warranted relief if she had properly preserved it. View "United States v. Gawron" on Justia Law

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Gamero, a Mexican citizen who entered in 1973 and became a lawful U.S. permanent resident 1989, had state drug convictions. An immigration judge found him removable as an alien convicted of the aggravated felony of “illicit trafficking in a controlled substance,” 8 U.S.C. 1101(a)(43)(B). He sought deferral of removal under the Convention Against Torture. The judge denied that relief because the evidence he presented about the risk of torture from Mexican drug cartels was largely speculative. The Board of Immigration Appeals affirmed. Gamero later moved to reopen the removal proceedings based on new evidence that his brother-in-law and nephew had been kidnapped and held for ransom in Gamero’s hometown. The Board denied the motion, ruling that the new evidence was unlikely to change the outcome. The Seventh Circuit denied a petition for review, rejecting arguments that his drug convictions do not qualify as “illicit trafficking” under 1101(a)(43)(B) because the crimes in question do not require proof of remuneration; that the agency’s decision to deny his application under the Convention Against Torture is not supported by substantial evidence; and that the agency applied the wrong legal standard and abused its discretion when it denied his motion to reopen. View "Gamero v. Barr" on Justia Law

Posted in: Immigration Law