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

Yang, a citizen of China, entered the U.S. in 1998, as a tourist. In 2000, he married a U.S. citizen, who filed an I-130 visa petition and application for adjustment of status on Yang’s behalf, but withdrew her petition in 2003. , Yang’s application was denied after an investigation led USCIS to conclude that his marriage was fraudulent. In 2007 he divorced. Yang then filed an application for asylum and associated relief based on his practice of Falun Gong. Although Falun Gong was not officially banned in China until 1999, in 1998 the police arrested Yang and placed him in a cell overnight. Yang continued practicing Falun Gong in the U.S. and believed that Chinese officials knew of his practice. In 2008, Yang married Li, who immediately filed an I-130 petition on his behalf. USCIS sent notice of intent to deny, because it believed that Yang’s prior marriage had been a sham. Li submitted rebuttal materials, but USCIS lost them and denied the petition for lack of support. The IJ denied a continuance pending adjudication of the I-130. Yang also sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT). He was unsuccessful. The Seventh Circuit remanded the BIA’s decision to uphold the IJ’s denial of a continuance pending adjudication of Yang’s I- 130. View "Yang v. Holder" on Justia Law

Sobaleva, a citizen of Belarus, entered the U.S. on a valid student visa. She applied for asylum, contending that the Belarusian government persecuted her for her political opinion before she left and likely would do so again if she were to return. She also requested asylum for her husband, Potorac, a citizen of Moldova. An immigration judge denied Sobaleva’s application and ordered that she and Potorac be removed. The Board of Immigration Appeals affirmed, stating that Sobaleva had not established either past persecution based on her political opinion or a well-founded fear of future persecution. The Seventh Circuit remanded, finding two significant flaws in the decisions: the judge and the Board applied the wrong legal standard to conclude that Sobaleva was not persecuted in Belarus and misconstrued and disregarded important evidence. View "Sobaleva v. Holder" on Justia Law

The Child Status Protection Act, 8 U.S.C. 1153(h), allows adult children of lawful permanent residents to maintain child status if their parent filed a visa petition on their behalf while they were under 21 and prevents such children from aging out of visa priority while their petition is under review. But an immigrant may take advantage of this provision only if he “sought to acquire the status of an alien lawfully admitted for permanent residence within one year” of a visa number becoming available. Velásquez is the adult child of a lawful permanent resident. In 2005, when Velásquez was 17, his father filed a visa petition on his behalf. Velásquez’s visa number became available in March 2011. Velásquez took steps to acquire permanent-resident status within one year, but did not file a formal application for permanent status until 14 months after his visa number became available. Later, the Board of Immigration Appeals adopted a new rule that required an immigrant to file or attempt to file a substantially complete application for permanent status within one year to satisfy the “sought to acquire” prerequisite. Because Velásquez had not done so, the Board ordered him removed. The Seventh Circuit remanded, finding the new interpretation of the Act’s ambiguous language to be reasonable, but holding that retroactive application works a manifest injustice in Velásquez’s case, View "Velasquez-Garcia v. Holder" on Justia Law

Baptist is a native of Belize who entered the U.S.as a lawful permanent resident in 1988.In 1992, Baptist pleaded guilty to possession of a controlled substance and was sentenced to probation. In 1995, Baptist was convicted of possession of a controlled substance and was again sentenced to probation. In 1996, Baptist was again convicted of possession of a controlled substance and was sentenced to five years’ imprisonment. At the time, the offense was considered an aggravated felony and he was placed in removal proceedings under 8 U.S.C. 1227(a)(2)(A)(iii) and 8 U.S.C. 1227(a)(2)(B)(i). Baptist signed a stipulated removal order in 1998. Afterwards, he illegally reentered the U.S. several times; each time he was discovered, he was again removed to Belize. In 2005, Baptist illegally entered once more and avoided detection until he was arrested in 2010. Charged with being illegally present in the U.S. after having been previously removed, 8 U.S.C. 1326(a). Baptist moved to dismiss the indictment, collaterally attacking his 1998 removal as violating his due process rights. The district court denied Baptist’s motion. The Seventh Circuit affirmed, stating that Baptist failed to establish that his removal proceedings were “fundamentally unfair.” View "United States v. Baptist" on Justia Law

Wang, a citizen of China was smuggled into the U.S. Virgin Islands in 1999, then age 21. Within two days, authorities discovered him and took him into custody. He was personally served with a notice to appear in the New Orleans immigration court at a “[t]ime and date to be set later.” There is no immigration court in the U.S. Virgin Islands. From a New Orleans detention facility, Wang was released on $15,000 bond, providing a North Carolina address. The immigration court twice attempted to inform Wang of the date of his hearing. Although Wang received the first notice, apparently neither was properly served. Wang did not appear and, in November 1999, the immigration judge closed the case. Wang remained in the U.S., married a Chinese citizen, and had children with her. In 2009 he voluntarily returned to immigration court and moved to recalendar his proceedings. He stated that he was pursuing a U Visa and planned to seek asylum and relief under the Convention Against Torture. A U Visa is available to certain noncitizen crime victims who “have been or are likely to be helpful to authorities in investigating or prosecuting that crime.” Wang believed that he was eligible as a victim of human trafficking. An immigration judge continued the case for 20 months. At the next hearing in 2012, the IJ learned that Wang had not obtained a U Visa and denied cancellation of removal on the ground that Wang lacked the required 10 years of continuous presence; his qualifying time ended when he was served with Notice to Appear two days after his arrival. The BIA and Seventh Circuit dismissed appeals. A notice that does not specify a particular time and date for the initial hearing suffices for purposes of the “stop-time” rule. View "Wang v. Holder" on Justia Law

Coyomani, a citizen of Mexico, entered the U.S. without inspection in 1997. In 2000, he was convicted in Illinois state court of domestic battery and of resisting a peace officer. DHS placed Coyomani in removal proceedings, charging him as an alien present without being admitted or paroled, 8 U.S.C. 1182(a)(6)(A)(i), and as an alien who had been convicted of a crime involving moral turpitude (CIMT), 8 U.S.C. 1182(a)(2)(A)(i)(I). Coyomani denied that he had committed a CIMT but conceded removability and sought cancellation of removal as a non-lawful permanent resident. The IJ concluded that Coyomani was removable and ineligible for cancellation of removal, because he was present without being admitted or paroled. Although Coyomani was convicted of domestic battery, which qualifies as a CIMT, the IJ found that Coyomani “probably” satisfied the statutory exception due to the brevity of his sentence and that resisting a peace officer did not qualify as a CIMT. The IJ found that Coyomani was ineligible for cancellation of removal because he had been convicted of “an offense under” section 237(a)(2), “an aggravated felony.” The same crime—state domestic battery—had different implications for different sections of the INA. The Board of Immigration Appeals and Seventh Circuit upheld the determination.View "Coyomani-Cielo v. Holder" on Justia Law

Sanchez, a citizen of El Salvador, entered the U.S. without inspection in 1989. Sanchez is now 47, married to a lawful permanent resident, and has four children, all U.S. citizens. Sanchez sought asylum and withholding of removal and applied for special rule cancellation of removal under the Nicaraguan Adjustment & Central American Relief Act (NACARA), 111 Stat. 2160, 2644 and under 8 U.S.C. 1229b(b), based on exceptional hardship to his children. While removal proceedings were pending, the government submitted evidence that Sanchez was not eligible for NACARA relief because he had assisted in the persecution of others while serving in the El Salvador military. Sanchez asked for a continuance. At Sanchez’s next hearing, in August 2009, Sanchez stated that he had been arrested in 2008 for leaving the scene of an accident where serious bodily injury occurred. The government argued that Sanchez’s conduct constituted a crime involving moral turpitude under 8 U.S.C. 1182(a)(2)(A)(i). Sanchez submitted a docket sheet showing that he was charged with a Class D felony, although the court entered the conviction as a misdemeanor and imposed a sentence of 365 days in jail with 363 days suspended. Sanchez claimed that, because of weather conditions, he thought that he had merely hit “a post or a small object” and only learned that he had hit a person when police arrived at his residence the next day. The IJ ordered removal; the BIA dismissed an appeal. The Seventh Circuit remanded, stating that the Board did not properly conduct the three-step inquiry prescribed in Matter of Silva-Trevino. View "Sanchez v. Holder" on Justia Law

Estrada, a Mexican citizen, entered the U.S. in 1996, at age 20, and has not left; he is married and has five children, all U.S. citizens. He was denied cancellation of removal, 8 U.S.C. 1229b(b), for failure to demonstrate “good moral character.” He had several traffic citations, including for driving in an “aggravated manner” after his license had been revoked; driving without a valid license, driving three times under the influence of alcohol, twice lacking required proof of financial responsibility; running a traffic light; disregarding a stop sign; failing to fasten his seat belt, and other violations. During removal proceedings, he was arrested and charged with eight traffic offenses, four of which involved “aggravated” driving under the influence. Despite continuances, those charges had not been resolved when the immigration judge ruled. The Board of Immigration Appeals affirmed. The Seventh Circuit denied review. The Board had enough evidence to make the latest criminal proceeding immaterial. The court characterized a defense argument as “a contention that as long as his client goes on violating the traffic laws, he can’t be removed—for even though his record gets worse and worse, there will always be some pending charges that the immigration judge must wait to see resolved before deciding whether to order him removed. “ View "Ortiz-Estrada v. Holder" on Justia Law

Halim, a citizen of Indonesia, came to the U.S in 2000. After his visa expired, he stayed without applying for legal residency. In 2005, DHS detained Halim and initiated removal proceedings under 8 U.S.C. 1227(a)(1)(B). Halim sought asylum, withholding of removal under section 241(b)(3) of the Immigration and Nationality Act, and protection under the Convention Against Torture, claiming that if he was forced to return to Indonesia, he would be subject to persecution because of his Chinese ethnicity and Christian beliefs. The State Department 2010 Human Rights Report for Indonesia indicated that its government officially promoted racial and ethnic tolerance, but laws and regulations still had discriminatory effects on ethnic Chinese; its Religious Freedom Report documented religious abuses between 2008 and 2010. Internet articles detailed religious attacks on Christians and continued discrimination against ethnic Chinese in Indonesia. Halim’s father and four of his siblings still lived and owned businesses in Indonesia. The IJ ordered deportation, finding the asylum application untimely as filed more than one year after his arrival. The evidence did not demonstrate: that Halim had personally suffered past persecution or would face a clear probability of future persecution if returned to Indonesia or that a pattern or practice of persecution against Chinese Christians as a group existed in Indonesia. The BIA dismissed an appeal. The Seventh Circuit rejected a petition for review. View "Halim v. Holder" on Justia Law

Castro, a citizen of Mexico, entered the U.S. without inspection when he was 14 years old. He was convicted of 11 offenses while he was in the U.S. between 1979 and 2001, six times for drug trafficking-related offenses. He was convicted twice of illegal entry. Castro was removed in 1980, 1981, 1984, 1989, 1990, 1994, 1997 and 1998. He reentered illegally after his last removal and has used 23 identities in encounters with law enforcement. In 2013, he was found as part of a Fugitive Operations program that uses public records to locate illegal aliens. He pleaded guilty to illegal reentry, 8 U.S.C. 1326(a). A probation officer assigned a base offense level of 8 and a 16-level enhancement under Guideline 2L1.2(b)(1)(A), because Castro had been convicted of a drug trafficking offense for which the sentence imposed exceeded 13 months’ imprisonment. He had 13 criminal history points, placing him in category VI. His advisory sentencing range was 77–96 months’ imprisonment. Castro argued that his criminal history occurred many years ago and that he had rehabilitated himself, as demonstrated by his family circumstances and work history. The court imposed a 77-month sentence. The Seventh Circuit affirmed, rejecting arguments that the district court erred by not expressly addressing his “fast-track disparity” argument at sentencing and that his sentence was substantively unreasonable in light of his proffered mitigation factors.View "United States v. Castro-Alvarado" on Justia Law