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

Salgado unlawfully entered the U.S. in 1996 and stayed continuously for 20 years. He has children, born in 2001 and 2003, who are U.S. citizens. In 2005 Salgado was convicted in Wisconsin of possessing cocaine. In 2013, when Salgado was arrested for driving under the influence, DHS charged him with removability for having been convicted of a controlled-substance offense, 8 U.S.C. 1182(a)(2)(A)(i)(II), and for being present in the U.S. unlawfully, 1182(a)(6)(A)(i). An IJ ordered removal but the BIA remanded for consideration of Salgado’s claim that his lawyer had provided ineffective assistance by neglecting to seek relief from removal. On remand, Salgado applied for statutory withholding of removal and withholding under the Convention Against Torture, arguing that he has a well-founded fear of persecution on account of his membership in “Mexican nationals whose family members have suffered persecution at the hands of the Zetas and other drug cartels in Veracruz” and “Mexican nationals who have lived in the U.S. for many years and who, upon being removed to Mexico, are perceived as having money.” The IJ found his asylum application untimely because he did not file it within a year of entering the U.S. and no changed or extraordinary circumstances excused the late filing, The Seventh Circuit dismissed a petition for review, rejecting claims that the BIA improperly rejected the proposed social group and misapplied the CAT legal standard. View "Salgado-Gutierrez v. Lynch" on Justia Law

Fuller, now 51 years old, came to the U.S. from Jamaica in 1999 with a fiancé visa sponsored by Wood, a U.S. citizen. They soon married and in 2001 had a daughter. Fuller received conditional permanent resident status, 8 U.S.C. 1186a(a), but he and Wood failed to attend a required interview with USCIS. In 2004 his status was terminated. They divorced the next year. Also in 2004, Fuller had pleaded guilty to attempted criminal sexual assault and was sentenced to 30 months’ probation. He later violated the conditions of his probation and in 2012 was resentenced to four years’ imprisonment. Upon Fuller’s release from state custody in 2014, the DHS detained him and charged him as removable for being convicted of an aggravated felony, 8 U.S.C. 1227(a)(2)(A)(iii), for being convicted of a crime involving moral turpitude, and for losing his conditional permanent resident status. Fuller unsuccessfully sought withholding of removal, arguing that he fears persecution and torture in Jamaica based upon his claimed bisexuality. The Seventh Circuit denied a petition for review, upholding the IJ’s factual determination that Fuller is not bisexual and that he would be perceived in Jamaica as bisexual, the basis of his purported fear of torture. View "Fuller v. Lynch" on Justia Law

Paz-Giron entered the U.S. without authorization around 1985 when he was 15 years old. Between 1998 and 2001, he was convicted four times in California for driving under the influence of alcohol. He was removed to Mexico in 2002. Paz-Giron returned to the U.S. and, in January 2013, he was again convicted of driving under the influence. Two months later he pleaded guilty to identity theft to obtain medical services, an aggravated felony under 8 U.S.C. 1101(a)(43)(M)(i) because it involved more than $10,000 in loss to the victim. In 2015 he was convicted of another DUI. In 2015 Paz-Giron was indicted and pled guilty to being unlawfully present in the United States after removal. He and was sentenced to 24 months in prison. The Seventh Circuit vacated the sentence. The district court misapplied an 8-level upward adjustment in the Sentencing Guidelines for aliens who unlawfully remain in the U.S. after being convicted of an aggravated felony, U.S.S.G. 2L1.2(b)(1)(C). Paz-Giron was removed in 2002, long before he committed the aggravated felony of identity theft. View "United States v. Paz-Giron" on Justia Law

Yang, now age 52, came to the U.S. from China in 2007 on a business‐visitor visa he obtained by misrepresenting that he hoped to attend a conference. Months later, he applied for asylum, asserting that his wife twice had been forced to undergo abortions and that he had been fired from his job for refusing to be sterilized. He corroborated his claims with medical records concerning a broken bone, allegedly the result of Chinese officials pulling his wife from a car, and letters from neighbors. His wife joined him in 2012 on a tourist visa that she overstayed. His application was denied. The IJ found Yang not credible based on Yang’s testimony that he did not know in 2006 whether he could have a second child legally and his wife’s difficulty in remembering details . The IJ concluded that, under the REAL ID Act, 8 U.S.C. 1158(b)(1)(B)(ii), Yang had not provided sufficient corroboration. The BIA agreed, noting Yang’s written statement accompanying his initial asylum application, in which he failed to mention any encounters with family‐planning officials after his wife’s second abortion or any reports that these officials sought him after he left China. The Seventh Circuit denied a petition for review, finding the denial supported by substantial evidence. View "Yang v. Lynch" on Justia Law

Lozano‐Zuniga, a citizen of Mexico, arrived in the U.S. in 2002, at age 14. In 2010, after a conviction for driving under the influence, he was charged with removability under 8 U.S.C. 1182(a)(6)(A)(i), for having entered the country without being admitted or paroled. Lozano‐Zuniga conceded removability, but sought withholding of removal and protection under the Convention Against Torture, testifying that before leaving Mexico, his mother received a telephone call asking for information about family members in the U.S.; the caller implied that he would kidnap Lozano‐Zuniga or his sister to get ransom money from relatives living in the United States. His mother did not contact the police. She did not testify about the phone call or submit an affidavit. Lozano‐Zuniga also testified that he fears that, in Mexico, he would be targeted and forced to work for the Mexican gang, the Zetas, as part of their violent drug trafficking operations. Lozano‐Zuniga admitted that he had never been personally threatened by the Zetas, and that his grandmother lives without incident in his city of origin. Lozano‐Zuniga also testified that, in Mexico, people criticized his Seventh Day Adventist religion. An IJ found, and the BIA and Seventh Circuit agreed, that Lozano‐Zuniga was generally credible, but did not establish a clear probability that he would face persecution or torture upon his removal. View "Lozano-Zuniga v. Lynch" on Justia Law

Ferreira, a 40‐year‐old citizen of the Dominican Republic, entered the U.S. without documentation and applied for asylum and withholding of removal based on her membership in a social group that she describes as Dominican women in relationships they cannot leave. Jimenez testified in immigration court that she fled to the U.S. because the government of her home country would not protect her from her common‐law husband, who had raped, beaten, and kidnapped her, and who continually stalked her and threatened to kill her and her two children. The IJ denied relief on the grounds that Jimenez was not credible and lacked corroborating evidence. The BIA affirmed, based largely on purported inconsistencies between Jimenez’s testimony at the removal hearing and her earlier statements to an asylum officer during a “credible‐fear” interview. The Seventh Circuit granted her petition for review and remanded, concluding that the agency erred by failing to address Jimenez’s argument that the notes from the credible‐fear interview were unreliable and an improper basis for an adverse credibility finding and ignoring material documentary evidence that corroborated Jimenez’s testimony. View "Ferreira v. Lynch" on Justia Law

Orona‐Ibarra, a citizen of Mexico, was removed from the United States following a 2007 Illinois drug conviction. He reentered the U.S., in violation of 8 U.S.C. 1326. He was arrested on unrelated charges in Texas and was “found” by immigration officials while in custody in Texas. He was transferred from Texas to the Central District of Illinois. A person violates section 1326 in any location in the United States where she is “found.” Venue in such cases is proper wherever in the United States the violation may occur or where the accused person “may be apprehended,” 8 U.S.C. 1329. Illegal re‐entry is a “continuing offense” that is committed from the moment the defendant reenters the country until federal immigration agents gain actual (not just constructive) knowledge of her presence, her identity, and her unlawful immigration status. The Seventh Circuit reversed the district court’s denial of Orona‐Ibarra’s motion to dismiss for improper venue. Orona‐Ibarra did not commit any element of the crime in Illinois: he did not reenter the country in Illinois, he was not “found” in Illinois, and he was not “apprehended” in Illinois. View "United States v. Orona-Ibarra" on Justia Law

Musunuru, a citizen of India, was the beneficiary of visa petitions filed by his previous employer, VSG, and by his current employer, Crescent. The priority date assigned to VSG’s petition allowed him to file an application with USCIS for adjustment of status to permanent resident. When an immigrant visa finally became available, USCIS did not adjust his status, but revoked VSG’s petition, invalidating its earlier priority date. Because the date assigned to Crescent’s petition was much later, Musunuru would have to wait several years for adjudication of his application . VSG’s owners had pleaded guilty to the unlawful hiring of an alien and mail fraud, in connection with an unrelated employee; USCIS presumed that all VSG’s visa petitions were fraudulent. Musunuru could have shown that his employment was not fraudulent, but USCIS sent notice to VSG only, even though VSG had gone out of business and Musunuru had changed employers. USCIS concluded that Musunuru lacked standing to challenge the revocation. The district court dismissed his appeal. The Seventh Circuit reversed. USCIS applied the notice and challenge regulations inconsistently with the statutory portability provision that allowed Musunuru to change employers. Musunuru’s current employer, Crescent, was entitled to pre-revocation notice and an opportunity to respond and to administratively challenge the decision. View "Musunuru v. Lynch" on Justia Law

The defendant pleaded guilty in 2011 to aiding and abetting marriage fraud, 18 U.S.C.1546(a), and was sentenced to three years in prison. Marriage fraud is an aggravated felony if the defendant is sentenced to at least 12 months in prison, 8 U.S.C. 1101(a)(43)(P); a noncitizen convicted of an aggravated felony is deportable, 8 U.S.C. 1227(a)(2)(A)(iii), and ineligible for cancellation of removal, asylum, or naturalization. The defendant unsuccessfully sought to withdraw his plea, claiming that he received ineffective assistance of counsel because he was not warned that pleading guilty would be virtually certain to result in his deportation. The Seventh Circuit affirmed denial of the motion, noting that one of the defense attorneys, an immigration specialist, had explained a possible, but barely viable, defense to the deportation that would inevitably follow his conviction, so the defendant had “full knowledge of the great risk that he faced of deportation,” and “actively strategized with his attorneys.” The court noted that the defendant, currently a fugitive, avoided conviction for mortgage fraud by pleading guilty to marriage fraud. He would have been likely to receive a longer prison sentence if convicted after a trial. View "United States v. Chezan" on Justia Law

Putro, a citizen of Latvia, entered the U.S. on a 4-month, foreign-exchange student visa in 1999 and overstayed. She married a U.S. citizen (Zalesky) in 2004 and gained conditional permanent residency, 8 U.S.C. 1186a(1). Her husband died of a drug overdose in 2006, before they could petition jointly to remove the conditions. Putro petitioned on her own; USCIS construed the petition as a request for a discretionary waiver of the joint-petition requirement, denied the waiver, and ordered Putro removed, stating that it had “reason to believe” that she had committed marriage fraud by marrying Zalesky. The Seventh Circuit granted her petition for review. Putro did not need a waiver because her husband’s death during the conditional period exempted her from the joint-filing requirement. In mistakenly evaluating her petition as a request for a waiver, the agency erroneously placed on Putro the burden of proving that the marriage was bona fide. View "Putro v. Lynch" on Justia Law