Articles Posted in Immigration Law

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DeKelaita provided legal representation for immigrants applying for asylum under 8 U.S.C. 1101(a)(42)(A). Applicants for asylum must sit for an interview with a U.S. Citizenship and Immigration Services officer and must provide a translator if one is needed. DeKelaita’s clients were primarily Assyrian or Chaldean Christians from Muslim‐ruled countries, such as Iraq. Many had suffered persecution, but their eligibility was doubtful because they either had already found refuge in another county or their history failed to meet the requirements for asylum. For at least nine clients, DeKelaita concealed evidence that the applicant had obtained legal status in a safe country or fabricated information about persecution. At the interview DeKelaita was able to ensure that applicants stuck to the script by coaching interpreters. He was convicted of conspiracy to defraud the government and for three false statements he either made or induced on his final (Albqal’s) application. The court vacated the three convictions related to Albqal’s application. The jury unanimously found only one false statement in Albqal’s application, but the court ruled that this statement was immaterial to his receipt of asylum. The court concluded that the government had failed to prove an element of the substantive crimes, leaving only the conspiracy conviction, which the Seventh Circuit affirmed. DeKelaita argued that the government failed to prove an overarching conspiracy. The jury had sufficient evidence to convict DeKelaita for either the charged conspiracy or a subsection of it. View "United States v. Dekelaita" on Justia Law

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Taylor, a citizen of Ireland, entered the U.S. in 2000 on a visitor’s visa. In 2008, Taylor was the victim of perjury, a qualifying crime under the Victims Protection Act., 8 U.S.C. 1101(a)(15)(U), which created the non-immigrant U-Visa program. The Act became law in 2000, but no regulations were issued for seven years. The issuance of U-Visas in large numbers began in 2009. The FBI certified that Taylor had provided the necessary assistance with the prosecution of the crime, Taylor applied for a U-visa in 2014. U.S Citizenship and Immigration Services (USCIS) determined that Taylor was eligible, but placed him on a waiting list because the statute prohibits the issuance of more than 10,000 U-visas per year. USCIS granted Taylor discretionary relief that defers removal and confers employment authorization benefits. Taylor filed suit, alleging that USCIS’s delay in promulgating regulations caused the backlog and asked the court to compel USCIS to immediately issue 80,000 U-visas to those on the waiting list. The court determined that Taylor lacked standing and dismissed his complaint. The Seventh Circuit affirmed. The agency lacks the statutory authority to give the relief sought. The U-visa limit was reached in 2016 and 2017. Taylor lacks constitutional standing; a court cannot review his claims at all, nor determine whether there was an unreasonable delay or a non-discretionary duty under the APA to compel USCIS to issue U-visas. View "Taylor v. McCament" on Justia Law

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Acquaah, now age 63, came from Ghana to the U.S. on a visitor’s visa and obtained conditional permanent resident status based on his marriage to a U.S. citizen. His application to remove residency conditions began proceedings that have spanned more than 25 years and included a charge that the marriage was entered into for the sole purpose of procuring entry as an immigrant. While those proceedings were pending, his first marriage ended, he remarried a U.S. citizen, and the two had a daughter. He obtained permanent residency under a different name on the basis of that second marriage. After discovery that he had used a new name, Acquaah was charged as statutorily deportable, 8 U.S.C. 1182(a)(6)(C)(i), and ineligible for a fraud waiver. The Seventh Circuit remanded. At his final hearing, Acquaah faced two charges: a 1992 charge of deportability based on termination of his permanent resident status and a later charge that he was deportable as an alien who by fraud or willful misrepresentation sought to procure immigration. The IJ found only the charge relating to the termination of conditional residency, sustained. The Board treated the specific statutory charge that the government decided to lodge and prove as dispositive of whether the waiver is available, but should have considered whether the charge sustained against Acquaah is related to fraud. View "Acquaah v. Sessions" on Justia Law

Posted in: Immigration Law

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Asentic, a Bosnian Serb who is now 65, was granted refugee status and brought his family to the U.S. from the former Yugoslavia more than 15 years ago. He has been a permanent resident for nearly that long, but the Board of Immigration Appeals authorized the government to remove Asentic because, in applying for refugee status, he failed to disclose his participation as a combatant in the Bosnian conflict during the 1990s. The Board could have granted Asentic a discretionary waiver of removal under 8 U.S.C. 1227(a)(1)(H) but declined to do so. The Seventh Circuit rejected Asentic’s appeal. “Although he presents a sympathetic case,” he is removable based on fraud, and the court lacked jurisdiction to review the Board’s discretionary decision to deny the waiver. View "Asentic v. Sessions" on Justia Law

Posted in: Immigration Law

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After his conviction for a felony in Illinois, Rodriguez-Contreras, a lawful U.S. permanent resident, was found in possession of a weapon and was convicted under 720 ILCS 5/24–1.1(a). The Board of Immigration Appeals concluded that he was removable as an alien convicted of an “aggravated felony,” 8 U.S.C. 1101(a)(43); violation of 18 U.S.C. 922(g)(1), which bars anyone convicted of a felony from possessing a firearm, is an aggravated felony. The Seventh Circuit remanded. The BIA did not address whether the substantive elements of the state offense match those of the federal law, which defines "firearm" as “any weapon … designed to … expel a projectile by the action of an explosive.” Compressed air is not an explosive, so pneumatic weapons are not “firearms.” Illinois law defines a firearm as “any device ... designed to expel a projectile ... by the action of an explosion, expansion of gas or escape of gas.” Illinois law is broader than the federal law. The court rejected an argument that the Illinois statute is “divisible” and permits judges to determine which statutory provision was involved. Illinois has a single crime of weapon possession by a felon, with multiple ways of committing that crime. A definitional clause does not create a separate crime. Federal law does not foreclose Rodriguez-Contreras’ obtaining discretionary relief from removal. In exercising discretion the BIA may consider that Rodriguez-Contreras possessed a weapon that is subject to both state and federal prohibitions. View "Rodriguez-Contreras v. Sessions" on Justia Law

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Garcia, a Honduran national, came to the U.S. in 2003. He was ordered removed and departed in 2005. Garcia claims that he was kidnapped and beaten upon his return to Honduras because of his opposition to deforestation. He returned to the U.S. in 2014 and, after being apprehended, sought asylum. The Chicago Asylum Office issued a positive reasonable fear determination. The IJ granted Garcia statutory withholding of removal, stating that she lacked the authority to reconsider the reinstatement of Garcia’s removal order. The BIA rejected Garcia’s argument that he had a statutory right to seek asylum under 8 U.S.C. 1158(a), reasoning that it lacked authority to declare the controlling regulations in violation of the statute. The BIA noted that “several federal courts have held a person in reinstatement proceedings is not eligible for and cannot seek asylum.” The Seventh Circuit initially dismissed an appeal because asylum is a form of discretionary relief, so Garcia lacks standing to challenge the regulations prohibiting him from applying for it. On rehearing, the government and court agreed that Garcia has standing. On the merits, the Seventh Circuit held that 8 U.S.C. 1231(a)(5) plainly prohibits aliens subject to reinstatement of a removal order from applying for asylum. View "Garcia v. Sessions" on Justia Law

Posted in: Immigration Law

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In 2014, the Seventh Circuit held that the Attorney General has authority under 8 U.S.C. 1182(d)(3)(A)(ii) to waive an alien’s inadmissibility and to halt removal temporarily while the alien requests a U visa. In Sanchez’s case, the Board of Immigration Appeals held that IJs lack authority to grant such requests. The Seventh Circuit vacated and remanded. Delegation from the Attorney General to immigration judges is a matter of regulation; 8 C.F.R. 1003.10(a) states that “[i]mmigration judges shall act as the Attorney General’s delegates in the cases that come before them.” Disagreeing with the Third Circuit and the Attorney General, the Seventh Circuit held that IJs may exercise the Attorney General’s powers over immigration. On remand, the Board may consider whether 6 U.S.C. 271(b) and 557 transfer to the Secretary of Homeland Security all of the Attorney General’s discretionary powers under the immigration laws and may also address whether the power to grant a waiver of inadmissibility may be exercised only in favor of an alien who has yet to enter the United States. The Board must address and resolve those essential issues before the court can consider whether the disposition lies within the scope of the agency’s discretion. View "Baez-Sanchez v. Sessions" on Justia Law

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Victoria‐Faustino, a Mexican national who entered the U.S. illegally in 1991, is the father of five U.S. citizens. He returned to Mexico to visit his family in 1999 but re‐entered illegally in January 2000. During a 2000 traffic stop, Victoria‐Faustino provided the police with a false identity; he then served a term of two years’ imprisonment for obstruction of justice.In 2015, he was arrested for driving while under the influence of alcohol. DHS instituted removal based upon his 2000 conviction, which DHS determined constituted an aggravated felony such that he was subject to expedited removal procedures. Victoria‐Faustino indicated that he wished to contest or to request withholding of removal, based on his fear of persecution and torture upon removal to Mexico. He never challenged DHS’s determination that he was removable based upon his 2000 Illinois conviction. An Asylum Officer determined that while Victoria‐Faustino was credible, he had not established that he was entitled to asylum. The Seventh Circuit remanded. While the statute generally strips courts of jurisdiction to consider an appeal of a Final Administrative Removal Order, they retain jurisdiction to determine whether the underlying conviction upon which it is based is an aggravated felony. Victoria‐Faustino’s 2000 conviction was not properly classified as an aggravated felony. View "Victoria-Faustino v. Sessions" on Justia Law

Posted in: Immigration Law

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Orellana‐Arias, a citizen of El Salvador, was detained as he entered the United States in 2013. He had previously entered illegally and been removed in 2001 and had entered and worked undetected from 2007-2011. Orellana‐Arias testified that after returning to El Salvador, he was assaulted and extorted by gang members and that the police were unable or unwilling to protect him from future harm by gang members. While Orellana‐Arias was in custody in the U.S., gang members twice approached his wife, asking his whereabouts. An asylum officer determined that Orellana‐Arias did not have a reasonable fear of persecution or torture but an immigration judge disagreed. Orellana‐Arias sought withholding of removal and Convention Against Torture protection. An IJ found that Orellana‐Arias credible, but that he had not demonstrated that the mistreatment rose to the level of past persecution as opposed to mere harassment; that the risk of future mistreatment was too speculative to constitute a clear probability of future persecution; and that Orellana‐Arias did not establish a nexus between any protected ground and alleged harm. The BIA and Seventh Circuit agreed. Orellana‐Arias did not meet his burden of demonstrating a nexus between the alleged persecution and his proposed social groups of wealthy deportees or gang resisters. View "Orellana-Arias v. Sessions" on Justia Law

Posted in: Immigration Law

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Chen, a lawful permanent resident who came from China at age 11, was ordered removed from the U.S. as an alien convicted of a controlled‐substance crime, 8 U.S.C. 1182(a)(2)(A)(i)(II). He had drug convictions in 2010 and 2011. The Board of Immigration Appeals decided that Chen was ineligible for cancellation of removal because of an Illinois conviction for possessing more than 30 but not more than 500 grams of marijuana, 720 ILCS 550/5(d), which, it concluded, qualified as an aggravated felony, making Chen ineligible for relief under 8 U.S.C. 1229b(a). The Seventh Circuit remanded, concluding that the Board misapplied the Supreme Court’s 2013 decision in Moncrieffe v. Holder, when it characterized Chen’s conviction as an aggravated felony. Nothing in that decision supports the conclusion that the possession of a tad more than 30 grams of marijuana—the lowest amount punishable under section 550/5(d)—can never be punished as a federal misdemeanor. View "Chen v. Sessions" on Justia Law