Articles Posted in Immigration Law

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Galindo, a lawful permanent U.S. resident, had Kentucky convictions for possession of drug paraphernalia and was charged with removability under 8 U.S.C. 1227(a)(2)(B)(i). The IJ applied the categorical approach, under which an alien’s state conviction renders him removable if it “necessarily establishe[s]” a violation of federal law and the modified categorical approach, which applies if a divisible statute proscribes multiple types of conduct, some of which would constitute a removable offense. If a statute is divisible, a court may consult a limited class of documents to determine which alternative formed the basis of the conviction. The IJ determined that Galindo was not removable under the categorical approach because the Kentucky statute criminalizes paraphernalia for drugs that are not proscribed by federal law and that the modified categorical approach does not apply because the paraphernalia statute is not divisible, then terminated the removal proceedings. The BIA reversed, finding no “realistic probability” that Galindo’s conviction involved those drugs, and purported to enter a removal order. The Seventh Circuit vacated. While courts lack jurisdiction to review the BIA determination that the drug-paraphernalia convictions qualify as controlled-substance offenses and may review only a “final order of removal,” 8 U.S.C. 1252, they may vacate based on clear legal error. In this case, the IJ never made the requisite finding of removability; the Board lacked the authority to issue a removal order. View "Galindo v. Sessions" on Justia Law

Posted in: Immigration Law

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Sembhi, a citizen of India, entered the U.S. in 1995 and overstayed his non-immigrant visa. Two years later, after he unsuccessfully sought asylum, Sembhi was charged as removable. Sembhi expected to obtain an I-130 visa based on his marriage to a U.S. citizen but when Sembhi appeared for a hearing in 2001, his counsel reported that his wife had obtained a default divorce. Sembhi’s counsel, Burton, indicated that Sembhi intended to explore vacating the divorce or cancellation of removal as an allegedly battered spouse or voluntary departure. The judge continued the matter. At the continued hearing Burton was present but Sembhi was not. Burton stated that he had not communicated with Sembhi in weeks despite attempts to contact him. Agreeing that Sembhi had received notice, the judge ordered Sembhi removed. More than 10 years later, Sembhi, represented by attorney Carbide, moved to reopen, blaming Burton for his failure to appear--an “exceptional circumstance.” The IJ denied Sembhi’s request. The BIA dismissed an appeal. Sembhi then acknowledged that his attorney had informed him orally of the hearing date but stated that he misunderstood the date. Before he filed this second motion, Sembhi had been married to another U.S. citizen for more than 10 years; his I-130 visa petition had been approved. After five adverse BIA decisions, Sembhi’s petition for review was denied by the Seventh Circuit. His fifth motion was late and numerically barred, 8 U.S.C. 1229a(c)(7)(A); Sembhi is not entitled to equitable tolling of those limitations. View "Sembhi v. Sessions" on Justia Law

Posted in: Immigration Law

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Singh entered the U.S. in 1993. An IJ denied his applications for asylum and withholding of removal (alleging religious persecution) and issued an exclusion order. Before the BIA ruled, he married a U.S. citizen. In 2000, Singh obtained permanent residency. Three years later Singh was arrested in Indiana. In 2004 he pleaded guilty to felony corrupt business influence. An IJ found him removable, citing his conviction for an aggravated felony related to racketeering, 8 U.S.C. 1227(a)(2)(A)(iii) and his conviction, within five years of admission, for a crime involving moral turpitude with a possible sentence of one year or longer. Singh was removed and later readmitted on a visitor visa to pursue post-conviction relief. The Indiana court vacated his felony conviction and accepted Singh’s guilty plea to the crime of deception, a misdemeanor punishable by imprisonment “for a fixed term of not more than one (1) year.” The BIA reopened. The government later alleged that Singh had fraudulently procured readmission and overstayed his visa, withdrawing the previous charge of removability, erroneously conceding that the moral-turpitude provision no longer applied. Months later, the government issued a new charge based on the deception conviction. The BIA affirmed a removal order, reasoning that the misdemeanor qualifies as a crime for which a sentence of “one year or longer” may be imposed. Meanwhile, Singh returned to state court, which vacated the deception conviction in exchange for a guilty plea to a different misdemeanor. The Seventh Circuit upheld the BIA's refusal to reopen. To warrant reopening, Singh had to show a substantive or procedural defect in the underlying criminal proceedings; his vacatur was based on a plea agreement. The court rejected alternative arguments that deception does not carry a possible sentence of “one year or longer” and that the government’s concession was binding. View "Singh v. Sessions" on Justia Law

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