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

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

Yuan, a 36-year-old Chinese citizen, illegally entered the U.S. in 2005, and was charged with removability under 8 U.S.C. 1182(a)(6)(A)(i). Yuan applied for asylum and withholding of removal, asserting that he feared being arrested or killed by the Chinese government because he opposes the country’s coercive family planning policies. He alleged that his girlfriend was forced to have an abortion and that government agents harassed him for opposing the procedure and later refusing to disclose where his girlfriend was hiding. Yuan claimed that his family was threatened and that he was attacked and spent two months in the hospital. An immigration judge disbelieved much of Yuan’s story, reasoning that his testimony was not credible and lacked corroboration. The Board of Immigration Appeals upheld the adverse credibility assessment but not the finding with respect to the amount of corroborating evidence. The Seventh Circuit remanded, agreeing that the credibility finding was flawed because several of the perceived inconsistencies were illusory and the actual inconsistencies were either immaterial or trivial. View "Yuan v. Lynch" on Justia Law

Herrera-Valdez became a permanent resident of the U.S. in 1990. In 1992, Herrera-Valdez was charged under 21 U.S.C. 846, 841(b)(2), pled guilty to conspiracy to possess with intent to distribute cocaine, and was sentenced to 70 months in prison. After his 1997 release, INS took custody of Herrera-Valdez. At a removal hearing, Herrera-Valdez admitted that he was convicted of an aggravated felony. The IJ denied his request for a waiver and ordered Herrera-Valdez deported. The Chicago District Counsel of the INS at the time was DerYeghiayan, who later became a judge in the Northern District of Illinois. The Board of Immigration Appeals dismissed an appeal and a motion to reopen because Herrera-Valdez did not follow technical requirements. In 2003, Herrera-Valdez returned to Mexico. In 2008, he re-entered the U.S. In 2009, he was arrested for the manufacture and/or delivery of 15-100 grams of cocaine, and being a convicted felon in possession of a firearm. In 2012, Herrera-Valdez was indicted for illegal reentry, 8 U.S.C. 1326(a). The case was assigned to Der-Yeghiayan, who had left INS in 2000. Herrera-Valdez filed a motion to disqualify under 28 U.S.C. 455, which was denied. The Seventh Circuit reversed his conviction, finding that the judge should have granted the motion to disqualify. View "United States v. Herrera-Valdez" on Justia Law

Gil‐Lopez, a citizen of Mexico, entered the U.S. in 1987. He became a lawful permanent resident in 2000. In 2002, he pleaded guilty to violating Idaho Code 18‐1501(1), “Injury to Children,” after originally having been charged with two counts of forcible rape. He was removed. Gil‐Lopez did not appeal the removal order, file a motion to reopen the immigration proceedings, or file a habeas petition. Several years later, he returned to the U.S., was arrested, and was charged with being illegally present in the United States after having been convicted of a felony, U.S.C. 1326(a). The district court held that his 2004 removal could form the basis for a charge of unlawful reentry and that his prior conviction was for an aggravated felony. The Seventh Circuit affirmed. Gil‐Lopez cannot challenge the district court’s decision because he did not exhaust his administrative remedies with respect to the immigration court’s 2004 removal order. View "United States v. Gil-Lopez" on Justia Law

After Aparicio-Brito’s fourth arrest for driving under the influence, the government commenced deportation proceedings, 8 U.S.C. 1182(a)(6)(A)(i).. Aparicio-Brito, a citizen of Mexico who entered the U.S. in 1998, did not challenge removability, but focused his efforts on suppressing the government’s evidence regarding his alienage and applying for cancellation of removal. An immigration judge (IJ) denied his suppression motions and application, finding that the government sufficiently demonstrated that Aparicio-Brito had entered the U.S. without inspection, and that cancellation of removal and voluntary departure would be improper because of Aparicio-Brito’s inability to demonstrate continuous presence in the U.S., good moral character, and extreme hardship on family members upon deportation. The Board of Immigration Appeals rejected his arguments that the IJ and the government had violated his due process rights before and during the proceedings, and challenging the IJ’s conclusions regarding alienage, cancellation of removal, and voluntary departure. The Seventh Circuit denied a petition for review, finding that the IJ and the government complied with their statutory responsibilities; adequately demonstrated his alienage; and correctly denied Aparicio-Brito’s application for cancellation of removal based on his inability to demonstrate 10 years of continuous physical presence. View "Aparicio-Brito v. Lynch" on Justia Law

Guzman-Rivadeneira came to the U.S. from Ecuador. In 1993 he was convicted in California of possession of counterfeit prescription blanks. After returning to Ecuador, he returned to the U.S. and became a lawful permanent resident because his mother is a U.S. citizen. On his application, he falsely responded that he had never been arrested or convicted of a crime. In 2012, Guzman-Rivadeneira pled guilty to a controlled substance misdemeanor. Guzman-Rivadeneira returned from another trip abroad in 2014 and was charged as removable for: conviction of a crime involving moral turpitude (1993 conviction), 8 U.S.C. 1182(a)(2)(A)(i)(I); conviction of a controlled substance offense; procurement of a visa by fraud; and lack of a valid entry document. He argued that a 1997 California court order reducing the 1993 conviction to a misdemeanor should be given retroactive effect; that he was eligible for a discretionary waiver of removability for his visa fraud, and that as a legal permanent resident he would be eligible for cancellation of other grounds of removal. The BIA upheld the IJ’s denial of relief. The Seventh Circuit declined a petition based on the “moral turpitude” issue. Guzman-Rivadeneira’s original lawyer conceded that the 1993 conviction involved moral turpitude, and in appealing to the BIA, his new lawyer did not seek relief from that concession, not did she take the steps needed to claim ineffective assistance of counsel. View "Guzman-Rivadeneira v. Lynch" on Justia Law