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

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

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

Doe, a citizen of Iran, sought lawful permanent residence in the U.S. under the EB-5 visa program, which requires applicants to invest in a new U.S. commercial enterprise, 8 U.S.C. 1153(b)(5)(A). Doe invested $500,000 in Elgin Assisted Living EB-5 Fund, for a memory care facility. The U.S. Citizenship and Immigration Services (USCIS) denied Doe’s petition because the facility had not been built. Doe filed suit. The court granted the government summary judgment. Meanwhile, Doe’s attorney was accused of defrauding 226 immigrants who invested over $88 million; he allegedly misappropriated the memory care center's funds. Doe eventually successfully applied to adjust his status to that of a conditional permanent resident. At the conclusion of his two-year, conditional term, Doe petitioned to remove the conditions on his residency. USCIS denied his petition. The district court upheld the denial, rejecting arguments that the decision was arbitrary and capricious, exceeded the relevant statutory and regulatory authority, and deprived Doe of his due process rights under the Fifth Amendment. The Seventh Circuit affirmed. USCIS reasonably concluded, after questioning the single expenditure supported by Doe’s investment, that significant questions remained unanswered about whether the transaction was legitimate and truly placed the full value of the investment “at risk” for purposes of job creation. View "Doe v. McAleenan" on Justia Law

Arrazabal, born in El Salvador, was admitted as a lawful U.S. permanent resident in 1995, at age 19. In 1996, Arrazabal was recruited into the MS-13 gang. He was convicted on firearms and drug charges. His status as a lawful permanent resident was revoked. His request for asylum was denied and he was ordered removed in 2001. Arrazabal alleges that he renounced his gang membership upon his return to El Salvador and, as a result, suffered violence by MS-13, a rival gang, and the police. He represents that he was repeatedly arrested without cause, jailed for extended periods, and tortured by police. Arrazabal fled El Salvador and returned to the U.S. illegally. He was arrested in 2012 for unlawful reentry and spent 27 months in prison. He applied again for asylum. An asylum officer preliminarily determined that he had a reasonable fear of being tortured if returned to El Salvador. Because Arrazabal’s 2001 removal order precluded asylum, he unsuccessfully sought withholding of removal and Convention Against Torture protection. Following a remand, additional evidence was presented. The IJ and Board of Appeals again denied relief. The Seventh Circuit again remanded, finding that the IJ and the Board mischaracterized certain evidence and again ignored corroborative aspects of the evidence. View "Arrazabal v. Barr" on Justia Law

Doe, an Iranian national, sought conditional permanent residency using the EB-5 admission category, which offers visas for immigrants who invest in new job-creating enterprises. The U.S. Citizenship and Immigration Service (USCIS) initially approved Doe’s petition but revoked its approval two years later. The revocation notice identified material changes: USCIS discovered information that contradicted evidence in the record, that the project had moved, and that Doe had not provided a business plan or targeted employment area certification for the new location. The record contained no evidence that the center was under construction or would create 10 jobs. Doe sought judicial review under the Administrative Procedure Act. The district court concluded that Congress had stripped its jurisdiction to review discretionary revocations of visa petitions (8 U.S.C. 1252(a)(2)(B)(ii).) and dismissed Doe’s suit. The Seventh Circuit affirmed, rejecting an argument based on Musunuru v. Lynch (2016), in which the Seventh Circuit held that section 1252(a)(2)(B)(ii) does not preclude judicial review of purely procedural rulings during the adjudication of a visa petition. The Doe ruling was not procedural. Doe challenged the agency’s substantive decision-making and cannot evade a jurisdiction-stripping statute by repackaging his substantive complaints as procedural objections. “Taken to its logical conclusion, Doe’s approach would eviscerate 1252(a)(2)(B)(ii). Any petitioner dissatisfied with a final agency decision could secure judicial review by alleging that the agency committed a procedural violation by overlooking favorable evidence.” View "Doe v. McAleenan" on Justia Law

Toure, a citizen of Mali, entered the U.S. on a tourist visa in January 2007. In June 2009, he married Wolfe, a U.S. citizen. Conditional on his marriage, he was granted permanent resident status. In September 2011, Toure and Wolfe filed a joint I‐751 petition to remove the conditions. After an interview, USCIS issued a Notice of Intent to Deny because the marriage seemed to have been motivated by immigration benefits; the two were living apart and could not answer basic questions about each other. USCIS terminated Toure's conditional permanent resident status. In removal proceedings, 8 U.S.C. 1227(a)(1)(D)(i), Toure conceded removability but said that he and Wolfe were still married and that they intended to proceed with the joint filing. He and Wolfe had actually been separated for several months. The IJ set the merits hearing for more than three years later. In December 2014, Toure and Wolfe divorced. Neither Toure nor his attorney informed the immigration court of this change in status. A month before the long‐scheduled removal hearing, Toure filed a new I‐751 petition, this time requesting a waiver of the joint‐filing requirement. At the hearing, he requested a continuance to allow USCIS time to adjudicate that petition and waiver request. The IJ and BIA rejected his request. The Seventh Circuit denied a petition for review. Toure’s hope that USCIS would grant his waiver was speculative at best and he did not diligently pursue his collateral remedy. View "Toure v. Barr" on Justia Law

Najera-Rodriguez, a 30-year-old lawful permanent resident, moved from Mexico to the U.S. when he was 10 years old. In 2016, based on possession of Xanax pills without a prescription, he pleaded guilty to unlawful possession of a controlled substance and was sentenced to two years of probation, community service, alcohol and drug treatment, educational requirements, and court fines. In removal proceedings under 8 U.S.C. 1227(a)(2)(B)(i), Najera-Rodriguez argued that his Illinois conviction under 720 ILCS 570/402(c) did not qualify as a conviction under a law “relating to a controlled substance” as defined in under 21 U.S.C. 802. Both the immigration judge and the BIA ruled against him and ordered him removed. The Seventh Circuit vacated the removal order. The Illinois law covers many different substances, some of which are not included in the federal law, and many types of conduct; it is not “divisible” for purposes of applying the “modified categorical approach,” so Najera-Rodriguez’s conviction does not render him removable. View "Najera-Rodriguez v. Barr" on Justia Law

Ortiz-Santiago, a Mexican citizen, has continuously resided in the U.S. without legal status since 1999. In 2015, he was arrested for driving without a license. He was served with a “Notice to Appear” for removal proceedings, 8 U.S.C. 1229(a), that did not include a time or date for Ortiz-Santiago’s hearing but referred to a date and time “to be set.” This omission violated 8 U.S.C. 1229(a)(1)(G)(i). Shortly thereafter, the Immigration Court sent Ortiz-Santiago a “Notice of Hearing,” setting his hearing for November 12, 2015 at 10:30 a.m. In 2006, the Seventh Circuit expressly approved this two-step procedure. During proceedings before the Immigration Judge in August 2016, Ortiz-Santiago sought cancellation of removal. The IJ found that Ortiz-Santiago failed to show the requisite hardship to his stepfather or his own good moral character. While his appeal was pending, the Supreme Court decided "Pereira," which held that a Notice that lacked the statutorily-required time-and-date information did not trigger the stop-time rule, which dictates the end-point of the non-citizen’s qualifying U.S. residence for certain immigration benefits. The Court stated that “[a] document that fails to include such information is not a ‘notice to appear under section 1229(a).” The BIA denied Ortiz-Santiago’s motion to remand and affirmed. The Seventh Circuit denied his petition for review, rejecting an argument that the Notice was so defective that it did not establish the Immigration Court’s jurisdiction. The Notice was procedurally defective, but the omission is not “jurisdictional.” View "Ortiz-Santiago v. Barr" on Justia Law

Villa, a citizen of Mexico, originally entered the U.S. in 1988 without inspection. He adjusted his status to that of a lawful permanent resident in 1995. Approximately nine years later, he was convicted of possession of cocaine and sentenced to a year in prison. In 2005, the Department of Homeland Security (DHS) initiated removal proceedings under 8 U.S.C. 1227(a)(2)(A)(iii) because he had been convicted of an aggravated felony. The Notice listed an address for the hearing “on a date to be set,” and “at a time to be set.” The Immigration Court later served on him a Notice of the date and time. He appeared; the immigration judge entered an order of removal. Villa waived his right to appeal and was removed to Mexico. He reentered the U.S. sometime in 2007, on foot at an unspecified location. In 2018, DHS served him with a Notice of Intent/Decision to Reinstate Prior Order of Removal, 8 U.S.C. 1231(a)(5), which stated that Villa could contest the determination that he was removable under the prior order by oral or written statement but that he was not entitled to a hearing. The Seventh Circuit dismissed his petition for review for lack of jurisdiction, rejecting an argument that the 2005 Order was void because it was entered ultra vires and that the 2005 proceedings were never properly initiated because the original “Notice” was legally deficient. View "Serrano v. Barr" on Justia Law

Lopez-Aguilar went to the Indianapolis Marion County Courthouse for a hearing on a misdemeanor complaint charging him with driving without a license. Officers of the Sheriff’s Department informed him that an ICE officer had come to the courthouse earlier that day looking for him. He alleges that Sergeant Davis took him into custody. Later that day, Lopez-Aguilar appeared in traffic court and resolved his misdemeanor charge with no sentence of incarceration. Sergeant Davis nevertheless took Lopez-Aguilar into custody. He was transferred to ICE the next day. Neither federal nor state authorities charged Lopez-Aguilar with a crime; he did not appear before a judicial officer. ICE subsequently released him on his own recognizance. An unspecified “immigration case” against Lopez-Aguilar was pending when he sued county officials under 42 U.S.C. 1983. Following discovery, the parties settled the case. The district court approved the Stipulated Judgment over the objection of the federal government and denied Indiana’s motion to intervene to appeal. The Seventh Circuit reversed. The state’s motion to intervene was timely and fulfilled the necessary conditions for intervention of right. The district court was without jurisdiction to enter prospective injunctive relief. The Stipulated Judgment interferes directly and substantially with the use of state police power to cooperate with the federal government in the enforcement of immigration laws. View "Lopez-Aguilar v. Indiana" on Justia Law