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

Barry was born in Guinea. His father was a member of an opposition political party during the 1990s. The Guinean government took drastic measures to locate Barry’s father and prevent his political activities, including stabbing Barry and beating his mother. Barry is no longer in touch with his father and has no current affiliation with any Guinean political party; a different political party is now in power. In 1998 Barry and his mother arrived in the U.S. Barry was admitted as a temporary visitor. He never returned to Guinea and is now 30 years old. Around 2009, Barry committed crimes, including controlled substances offenses and possession of a firearm. DHS issued a removal order under 8 U.S.C. 1228(b) based on his felony conspiracy to commit robbery conviction. Barry applied for deferral of removal under the Convention Against Torture, 8 C.F.R. 1208.17, testifying that he feared returning to Guinea because of the earlier threats and because he is bisexual. Barry married an American woman, but testified he also had relationships with men; he believes “regular civilians” in Guinea would discover his sexuality and “beat [him] to death.” The IJ found Barry and his mother to be credible but denied Barry’s application because Barry failed to meet his burden of producing evidence that if removed to Guinea he more likely than not would be tortured. The Seventh Circuit denied a petition for review, finding that Barry failed to substantiate his claims. View "Barry v. Barr" on Justia Law

Delhorno, age 42, came to the U.S. with his parents when he was three years old. Living as a lawful permanent resident, he was pulled over for speeding. A drug-detection canine alerted to the presence of drugs. Officers discovered four kilograms of cocaine in a trap compartment. Delhorno pleaded guilty to possessing cocaine with intent to distribute. His hearing was more than a year after the Supreme Court held (Padilla v. Kentucky), that a defense lawyer provided ineffective assistance of counsel by failing to advise his client that his guilty plea would subject him to automatic deportation. Although the judge was informed of his status, there was no discussion about the immigration consequences of Delhorno’s guilty plea. Delhorno was sentenced to 60 months. Delhorno never filed an appeal or a habeas corpus petition. In 2017, Delhorno completed his prison sentence and was deported to Mexico. The Seventh Circuit affirmed the denial of Delhorno's petition for a writ of coram nobis without a hearing. The common-law remedy of coram nobis is available to correct errors in criminal cases, only when the error is of the most fundamental character as to render the conviction invalid, there are sound reasons for the defendant’s failure to seek earlier relief, and the defendant continues to suffer from his conviction although he is out of custody. Delhorno cannot offer “sound reasons” for failing to seek earlier relief through a direct appeal or habeas corpus petition. View "United States v. Delhorno" on Justia Law

In Belarus, Ruderman experience discrimination and violence because of his Jewish heritage. His father, a documentary filmmaker, died while filming a piece on government corruption and had previously been detained and battered by the KGB. Ruderman fled to the U.S. at age 19, in 2001, under the Lautenberg Amendment, which lowers barriers to immigration for certain former Soviet nationals, 8 U.S.C. 1157. Shortly after arriving he was convicted of driving under the influence of alcohol and sentenced to court supervision. He found work and got married. In 2008, Ruderman struck and killed a pedestrian while driving drunk. He pleaded guilty to homicide by negligent operation of a vehicle and was sentenced to five years in prison. Following his release, he worked until the government denied his adjustment‐of‐status application, causing his work permit to expire. The government then began removal proceedings. The IJ concluded that Ruderman was statutorily inadmissible because of his two convictions and denied Ruderman’s applications for a waiver of inadmissibility, adjustment of status under the Lautenberg Amendment, cancellation of removal, asylum, withholding of removal, and protection under the Convention Against Torture. The BIA dismissed Ruderman’s appeal. The Seventh Circuit remanded the question of whether Ruderman is statutorily inadmissible. It is unclear why the BIA concluded that Ruderman waived his argument that the inadmissibility statute applies only when two or more convictions each result in a sentence to confinement. View "Ruderman v. Whitaker" on Justia Law

Fuller entered the U.S. on a fiancé visa in 1999 and married an American citizen in 2000. In 2004, he pleaded guilty to attempted criminal sexual assault. An Illinois court ultimately imposed a sentence of four years' imprisonment. Following Fuller’s 2014 release, DHS initiated removal proceedings, 8 U.S.C. 1227(a)(1)(D)(i) . In 2004, Fuller and his wife, whom he divorced in 2005, had failed to appear for a mandatory immigration interview, triggering the revocation of his conditional residency status. Because Fuller’s conviction constituted a “particularly serious crime,” he was disqualified from seeking withholding of removal. Fuller sought deferral of removal under the Convention Against Torture, alleging that he was likely to be tortured as a bisexual if returned to Jamaica. In 2015, the BIA affirmed the denial of relief based on the IJ’s adverse credibility findings. Fuller asked the BIA to reopen his removal proceeding so that he could present new evidence, Fuller submitted new letters of support from acquaintances attesting to prior incidents in which he was the victim of violence in Jamaica owing to his sexual orientation. In denying this request, the BIA explained that “[Fuller’s] motion does not challenge our conclusions regarding his credibility or his eligibility for deferral of removal, and we do not find that his letters of support would materially alter these findings.” The Seventh Circuit again remanded. The BIA’s stated rationale reflects a misapprehension of the basis for his request. View "Fuller v. Whitaker" on Justia Law

Yafai and Ahmed were born, raised, and married in Yemen. Yafai became a naturalized U.S. citizen in 2001 and successfully filed I‐130 petitions on behalf of his wife and several of their children. Ahmed and her children subsequently applied for visas. The consular officer denied Ahmed’s visa application, citing 8 U.S.C. 1182(a)(6)(E), which provides that “[a]ny alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.” The denial stated that she attempted to smuggle two children into the U.S. using the identities Yaqub and Khaled. Yafai and Ahmed apparently argued that Ahmed could not be guilty of smuggling, because the children whom she had allegedly smuggled were deceased. Ahmed provided: vaccination records, Khaled’s school records, hospital bills, hospital birth records, the police report from the drowning accident, Khaled’s passport, and family photos. An embassy fraud prevention manager found the their testimony not credible and initiated an investigation. Several months later, the consular officer reaffirmed the prior visa denial. The Seventh Circuit affirmed the dismissal of a suit by Yafai and Ahment. The decision is facially legitimate and bona fide, so the doctrine of consular nonreviewability applies. View "Yafai v. Pompeo" on Justia Law

Beltran-Aguilar, a citizen of Mexico, applied for cancellation of removal. The BIA affirmed the denial of his application. The Seventh Circuit denied a petition for review. Beltran-Aguilar’s conviction for Wisconsin battery involving domestic abuse was a crime of domestic violence, rendering him ineligible for cancellation of removal under 8 U.S.C. 1229b(b)(1)(C). A “crime of violence” is “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another,” 18 U.S.C. 16(a). The elements of the crime for which a defendant was convicted, not his underlying conduct, are determinative. Beltran-Aguilar was convicted under Wisconsin Statute 940.19(1), which prohibits “caus[ing] bodily harm to another by an act done with intent to cause bodily harm to that person or another without the consent of the person so harmed.” “Bodily harm” means “physical pain or injury, illness, or any impairment of physical condition.” Rejecting an argument that certain types of non-qualifying conduct theoretically might be prosecuted under the statute, the court stated that there must be “a realistic probability, not a theoretical possibility," that the state would prosecute conduct that falls outside the generic definition of a crime. Beltran-Aguilar has not identified any case in which Wisconsin’s definition of “bodily harm” has been applied in a way that does not accord with precedent defining crimes of violence. View "Beltran-Aguilar v. Whitaker" on Justia Law

In 2001, Plaza-Ramirez entered the U.S. from Mexico without inspection or admission. In 2010, he was apprehended by Border Patrol agents. He sought asylum, withholding of removal, and protection under the Convention Against Torture, citing an attack he suffered in 1999 at a dance club in his hometown in Mexico. He was followed into the restroom by Los Negros gang members, who, mistakenly thinking he was affiliated with his cousin’s rival gang, beat him with a metal pipe. They subsequently threatened him repeatedly but did not attack him again. Afraid of retaliation, he never filed any police reports. Plaza-Ramirez argued that he was targeted because he is a member of a particular social group: his own family (8 U.S.C. 1101(a)(42)(A)). The IJ denied relief. The asylum claim was untimely because Plaza-Ramirez did not apply until over a decade after his first year of entry, 8 U.S.C. 1158(a)(2)(B). Plaza-Ramirez had failed to show that the 1999 attack occurred because of his family membership, and the attack did not rise to the level of persecution. The BIA affirmed, finding that Plaza-Ramirez failed to show sufficient persecution and failed to show any nexus between the 1999 attack and his membership in a particular social group. The Seventh Circuit denied a petition for review, finding the denials supported by substantial evidence. View "Plaza-Ramirez v. Sessions" on Justia Law

In 1991, Molina-Avila, born in Guatemala and then 11 years old, came to the U.S. with his sister and brother. He became a legal permanent resident the same year. As a young adult, he was convicted of three drug offenses under Illinois law. DHS initiated removal proceedings. Molina-Avila requested deferral of removal because he feared torture by Guatemalan gangs. His brother had been deported to Guatemala in 1998 and experienced violent harassment by a Guatemalan gang, the Mara 18. Molina-Avila believes the harassment occurred because his brother was perceived as a wealthy former-American. The IJ and BIA denied relief. The Seventh Circuit affirmed the decision as supported by substantial evidence. Molina-Avila relied on generalized evidence in arguing his tattoos and perceived wealth would inevitably result in torture and the record did not compel the conclusion that the police force is unwilling or unable to investigate gang violence nor did it compel the conclusion that safe relocation within Guatemala would be impossible. View "Avila v. Sessions" on Justia Law

Alvarenga-Flores, apprehended crossing the U.S. border, gave a “credible fear” interview while he was detained, stating that he was afraid to return to El Salvador, where he is a citizen, because after witnessing a friend's murder, he received threats from the gang members responsible. Alvarenga applied for asylum, withholding of removal, and protection under the Convention Against Torture. The IJ denied all of relief based on an adverse credibility finding; he also found that Alvarenga’s asylum application was time-barred. The IJ cited inconsistencies in Alvarenga’s testimony about his escapes from gang members who attacked him in a taxi and from gang members who approached him on a bus. Alvarenga had submitted affidavits from his parents; both were written in English, although neither parent speaks English. Alvarenga’s parents lacked firsthand knowledge of the events and “restate[d] things that they can only have heard from [Alvarenga].” The IJ further noted that Alvarenga’s parents could have testified telephonically but did not. The BIA found the discrepancies sufficient to sustain an adverse credibility finding, 8 U.S.C. 1229a(c)(4)(C). The BIA affirmed. The Seventh Circuit denied a petition for review. Substantial evidence supports the decisions of the immigration judge and the Board, and the record does not compel a contrary conclusion. View "Alvarenga-Flores v. Sessions" on Justia Law

In 2015, tattooed members of the Mara 18 gang, having previously abducted his brother, held a gun to W.G.A.’s head and threatened to kill him. With its rival, MS‐13, Mara 18 terrorizes the Salvadoran population and government. The gangs have orchestrated labor strikes and plotted to bomb government buildings. They brag about influencing elections and controlling political campaigns. They extort millions of dollars from businesses and are largely responsible for El Salvador’s homicide rate. Days after the threat, W.G.A. fled to the U.S. DHS apprehended him and began removal proceedings. W.G.A. applied for asylum, statutory withholding of removal, and deferral of removal under the Convention Against Torture, arguing that the gang would kill him if he returned to El Salvador. The IJ denied his applications. The BIA dismissed an appeal. The Seventh Circuit granted W.G.A.’s petition for review and remanded. W.G.A. established persecution based on his membership in a qualifying social group--family members of tattooed former Salvadoran gang members. Country reports and news articles throughout the record demonstrate widespread recognition that Salvadoran gangs target families to enforce their orders and discourage defection. The IJ and BIA did not address the extensive record, describing how corruption, judges’ refusal to protect witness anonymity, and the police’s fear of reprisal, allow gangs to act with impunity. View "W.G.A. v. Sessions" on Justia Law