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

Chen, a citizen of China, entered the U.S. in 2004 as a nonimmigrant. He overstayed and sought asylum, withholding of removal, and protection under the Convention Against Torture. He admitted removability, 8 U.S.C. 1227(a)(1)(B). Chen testified that he left China because he was persecuted because he participated in the demonstration against the government using violence to force people to demolish housing and to move. He said that he was detained, beaten, harassed, threatened, and arrested by the police. Chen was released after three days, but was required to report to the police station, first weekly and then on a monthly basis. Chen has not participated in any other antigovernment demonstration and was not a member of any political organization. The IJ rejected his claims, finding that Chen did not apply for asylum until more than three years after his arrival, so that his asylum application was untimely. His inability to speak English, to understand the law, and not having money to hire an attorney did not amount to extraordinary circumstances to excuse untimely filing. Regarding withholding of removal, the IJ found that Chen’s situation was a personal dispute rather than an expression of his political opinion. The Seventh Circuit dismissed a petition for review. View "Chen v. Holder" on Justia Law

After guerillas from the Revolutionary Armed Forces of Colombia (FARC) kidnapped her father and killed her uncle, petitioner fled Colombia. After entering the U.S. legally on a tourist visa, she and her family overstayed their visa and applied for asylum within one year, claiming that they were victims of persecution by the FARC and were in danger of future persecution should they return to Colombia. Petitioner’s husband and daughter filed derivative claims. The immigration judge concluded that petitioner failed to meet her burden of proof that she has suffered past persecution or would suffer from future persecution on the basis of her membership in a social group of land owners or because of her political opinion. The Board of Immigration Appeals affirmed. The Seventh Circuit granted a petition for review and remanded, stating that the evidence compels a contrary conclusion. The question of who is persecuted by FARC threats and whether the government is unable or unwilling to contain them is unresolved. View "N.L.A. v. Holder" on Justia Law

Chavarria, born in Mexico, became a legal permanent U.S. resident in 1982. In 2009, Chavarria pleaded guilty to distributing cocaine. One year later, the Supreme Court decided Padilla v. Kentucky, imposing a duty on defense attorneys to inform noncitizen clients of deportation risks stemming from plea agreements, and held that legal advice, or the lack thereof, involving the prospect of deportation resulting from guilty pleas can support a Sixth Amendment claim of ineffective assistance of counsel. Chavarria filed a pro se motion under 28 U.S.C. 2255, claiming that his trial counsel stated that “the attorney had checked with the Bureau of Immigration and Customs Enforcement … and they said they were not interested” in deporting him. Chavarria was deported before counsel was appointed. The district court denied a motion to dismiss, holding that Padilla could be applied retroactively. Shortly thereafter, the Seventh Circuit decided, in Chaidez v. U.S., that Padilla was a new rule and not retroactive. The district court vacated its ruling and dismissed. While appeal was pending, the Supreme Court affirmed Chaidez, foreclosing Chavarria’s argument that Padilla was retroactive. The Seventh Circuit affirmed, rejecting an argument that Chaidez distinguished between providing no advice (actionable under Padilla) and providing bad advice (actionable under pre‐Padilla law). View "Chavarria v. United States" on Justia Law

Flores, an alien who returned to the U.S. without permission following removal, was charged with illegal reentry and other crimes arising from his armed drug dealing. Flores, who maintained that U.S. law did not apply to him and that the court had no jurisdiction to try him, refused to consider a guilty plea. He was convicted on all counts and was sentenced to concurrent 96-month sentences on all counts but one. His conviction, for possessing firearms in furtherance of a drug trafficking felony, led to a consecutive term of 360 months’ imprisonment, which was compulsory because of Flores’s earlier conviction of the same crime, 18 U.S.C. 924(c)(1)(B)(ii). The Seventh Circuit affirmed, rejecting an argument that trial counsel furnished ineffective assistance by telling the jury that Flores indeed had distributed cocaine after reentering the U.S. without permission, while arguing that the prosecution did not establish guilt beyond a reasonable doubt on the weapons-related charges. View "United States v. Flores" on Justia Law

Darif, a citizen of Morocco, married Kirklin, a U.S. citizen and by virtue of the marriage was admitted into the U.S. as a conditional permanent resident in 2001. It was later determined that he had paid $3000 for the marriage and Darif was convicted of marriage fraud and related charges, and DHS initiated removal proceeding. An immigration judge found Darif removable and rejected all arguments for relief. The BIA and Seventh Circuit denied relief. The court stated that it lacked jurisdiction to review his claims of entitlement to an extreme-hardship waiver pursuant to 8 U.S.C. 1186a(c)(4) and that the IJ was biased and otherwise denied him a full and fair hearing. The determination of extreme hardship was a discretionary decision and Darif’s due-process argument could not succeed because an alien has no protected liberty interest in discretionary immigration relief. Even if the due-process claim was considered as a challenge to the legal sufficiency of Darif’s hearing under the governing, he was not prejudiced because the BIA gave his hardship claim plenary and independent consideration. View "Darif v. Holder" on Justia Law

Kim, his wife Ko, and their children are citizens of South Korea who were admitted to the U.S. in 2003, as nonimmigrant visitors for pleasure. Before an extension expired, Ko, obtained an F-1 visa, changing her status to that of a nonimmigrant student. As beneficiary of his wife’s application, Kim’s status was changed to that of spouse of a nonimmigrant student. In 2006, Ko’s F-1 status and, consequently, Kim’s F-2 status, were terminated. U.S. Citizenship and Immigration Services stated that Ko was ineligible for reinstatement because she had stopped attending classes without informing the school of an illness that she later claimed. While Ko’s motion to reopen or reconsider was pending, Kim became the beneficiary of an approved immigrant visa as an alien worker and moved to adjust his status to that of lawful permanent resident. USCIS denied the application, finding that he was ineligible because he had failed to maintain continuous lawful status since entering the U.S. In 2009, DHS charged Kim removable under 8 U.S.C. 1227(a)(1)(B). Kim argued that his failure to maintain legal status was due to circumstances beyond his control. The IJ found Kim removable. The BIA dismissed an appeal. The Seventh Circuit denied a petition for appeal. View "Kim v. Holder" on Justia Law

Chen faced deportation to Fujian Province and claimed to face a significant risk of persecution there because, since coming to the U.S. in 2002, she has given birth to two children in violation of China’s one‐child policy. The Board of Immigration Appeals denied her petition for asylum. The Seventh Circuit upheld the denial, noting that the Chinese government recently announced that it will permit an urban husband and wife, at least one of whom was an only child, to have two children. Chen’s husband is not an only child; Chen testified that her mother‐in‐law was punished for violating the policy. There is no information on whether Chen is an only child or whether the new policy will be applied retroactively. Fujian Province seems to enforce the one‐child policy more strictly. Nonetheless, the BIA noted that forced sterilization has become very rare and noted that Chen could avoid penalty by not registering the children with the government as permanent residents of China. The children would not be entitled to free public education, subsidized health care, and other benefits, but Chen’s failure to present evidence concerning her financial situation “is a fatal weakness in her case.” View "Chen v. Holder" on Justia Law

Convicted in 1990 for aggravated criminal sexual abuse, Shah was ordered removed to India in 2005. He did not seek judicial review, but unsuccessfully moved for reconsideration, arguing that he should have been granted a waiver of removal under 8 U.S.C. 1182(c) as it existed before its 1996 repeal. Shah has lived in India since 2007. In 2012 he moved to reopen the proceedings and, after the BIA denied that motion, brought a motion to reconsider. The BIA recognized that it had authority to reopen but remarked that Shah’s situation did not merit a favorable exercise of discretion, because of the nature of his crime and also because Shah is no longer in the U.S. The Seventh Circuit dismissed petitions for review, noting the 90-day deadline for motions to reopen. An IJ and the BIA concluded in 2005 that, as a matter of administrative discretion, Shah would not receive section 212(c) relief even if he were in the category of those still eligible for consideration because of the nature of his crime against a child. View "Shah v. Holder" on Justia Law

Deported following a 1996 conviction for attempted first degree murder and armed violence, Lara, a citizen of Mexico, returned to the U.S. and was arrested for armed robbery and attempted armed robbery. After a second illegal return, he was convicted of illegal reentry in violation of 8 U.S.C. 1326(a) and (b)(2) and sentenced to 78 months’ imprisonment. On appeal, Lara argued that the district judge should have disqualified himself from hearing Lara’s motion to dismiss the indictment or erred in failing to dismiss the indictment because Lara was erroneously denied an opportunity to seek discretionary relief from deportation under the Immigration and Nationality Act section 212(c) in his first deportation proceeding in 1997–1998. The Seventh Circuit rejected the claims. The judge was not disqualified from ruling on Lara’s motion based on the judge’s service as INS District Counsel when Lara was first deported. The court did not reach the question of whether precedents interpreting 8 U.S.C. 1326(d) foreclose Lara’s collateral attack on his underlying deportation order because counsel conceded the issue. View "United States v. Lara-Unzueta" on Justia Law

Petitioners applied for asylum in the U.S., claiming that they had been persecuted as members of the “social group” of timberlands owners and would face risks if returned to Honduras. Organized squatters, “La Via Campesina,” invade agricultural lands and take over production; if they raise the national flag and assert that owners are not using the land, police and judges are unwilling to evict them. Timber lands remain out of production for years while trees mature, making them targets for campesinos, who cut and sell the timber. Petitioners assert that campesinos occupied their land in 2008 and that they fear for their lives should they return to assert ownership rights. An immigration judge denied asylum, finding (under 8 U.S.C. 1101(a)(42)(A)) that the past and feared future harm do not amount to persecution; that the squatters’ acts did not occur because of petitioners’ membership in any particular group but were for profit, with indifference to who was injured; and that the squatters’ acts could not be imputed to the government. The BIA concluded that the campesinos are thieves whose own interests, rather than antipathy toward petitioners, led to the invasion and that Honduras is willing and able to control the campesinos; after petitioners obtained a court order, officers did remove the squatters. The Seventh Circuit denied a petition for review. View "Urbina-Dore v. Holder" on Justia Law