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

Pouhova is a Bulgarian citizen who entered the U.S. on a student visa in 1999. She overstayed her visa, married a U.S. citizen and applied for an adjustment of status. She was charged as removeable for assisting an alien trying to enter the U.S. illegally, 8 U.S.C. 1227(a)(1)(E)(i). The government produced a written statement from the woman who attempted to use Pouhova’s Bulgarian passport to enter the U.S. in 2000. The document was taken in English, without an interpreter. The government also produced a Department of Homeland Security “record of deportable alien,” a report on that interview, prepared by the same inspector, but more than seven years later. Pouhova was ordered removed and appealed, arguing that she was deprived of her procedural rights because the immigration judge based his decision on the two hearsay documents. The Seventh Circuit vacated and remanded. Although the Federal Rules of Evidence do not apply to removal hearings, the documents are not reliable and should not have been used without giving Pouhova an opportunity to cross-examine the declarant or author. View "Pouhova v. Holder" on Justia Law

Belbachir, an Algerian citizen, 27 years old, entered the U.S. as a visitor in 2004. She overstayed and, in 2005, flew from Chicago to England, where immigration authorities returned her to Chicago. She was placed in the McHenry County Jail, which has a contract with the federal government to house detainees. She planned to seek asylum on the ground that she had a well‐founded fear of being persecuted if returned to Algeria. She committed suicide by strangling herself with her socks about eight days after arriving at the jail. Her estate sued under 42 U.S.C. 1983, arguing that defendants had deprived Belbachir of her life without due process of law, and under Illinois tort law. The district judge granted summary judgment in favor of defendants with respect to the section 1983 claims. The plaintiff appealed only with respect to McHenry County; the county sheriff and the director of the jail; and three employees of Centegra, a private firm, hired to provide medical services at the jail. The Seventh Circuit reversed with respect to one Centegra employee, who was aware of Belbachir’s suicidal thoughts and depressed condition, but failed to take action. The court otherwise affirmed. View "Belbachir v. McHenry Cnty., IL" on Justia Law

Petitioner, using a fake Italian passport, came to the U.S. in 2002, at age 23. Less than a year later, she applied for asylum and withholding of removal, claiming that she feared returning to Albania because, as a young woman living alone, she would be kidnapped and forced into prostitution and that police would not protect her because she is Christian and supports the Democratic party, which was not in power. She claimed that she was harassed by the leader of a Muslim gang and that police had taken no action. An IJ granted asylum, concluding that she belonged to a particular social group comprised of young women targeted by traffickers and that the Albanian government was unwilling or unable to protect such women. The decision was vacated by the BIA. The Seventh Circuit denied review, but on rehearing, en banc, vacated and ruled in favor of petitioner. The BIA erred in determining that her social group was not cognizable under the Act and that internal relocation was a feasible means of avoiding persecution. View "Cece v. Holder" on Justia Law

Papazoglou, a citizen of Greece, entered the U.S. on a visitor’s visa in 1986. In 1987, he married a U.S. citizen, Hariklia, and adjusted his status to lawful permanent resident in 1990. He has four children. In 2008, Papazoglou pled guilty to third-degree sexual assault and physical abuse of a child and was sentenced to 2 ½ years’ imprisonment and 4 ½ years of probation. DHS began removal proceedings, 8 U.S.C.A. 1227(a)(2)(A)(iii). Papazoglou sought adjustment of status based on his marriage, 8 U.S.C. 1255(a), and a waiver of inadmissibility arising from that aggravated felony conviction, 8 U.S.C. 1182(h). The IJ granted the waiver and the adjustment of status. The Board of Immigration Review found Papazoglou statutorily ineligible for waiver and that, even if he were eligible for waiver, he would not be entitled to it as a matter of discretion. The Seventh Circuit denied review, upholding the Boar’s interpretation of the statute as applied to Papazoglou and finding that judicial review of discretionary removal decisions based on commission of an aggravated felony is precluded by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. 1252(a)(2)(C). View "Papazoglou v. Holder" on Justia Law

Canadian immigration officers refused to allow Margulis to “enter” Canada, but when he attempted to return, U.S. customs officers discovered that he had a criminal record and placed him in removal proceedings under 8 U.S.C. 1227(a)(2) even though his crimes had resulted in only 30 days of jail time. A lawful permanent resident is removable if he commits nontrivial crimes in the U.S.; if he leaves the U.S. he cannot be readmitted for at least five years, 8 U.S.C. 1182(a)(9), (a)(9)(B). Immigration authorities can waive inadmissibility if the crimes that made the alien deportable are minor, 8 U.S.C. 1182(h) (section 212(h)). Margulis asked that the removal proceedings be terminated and that he be placed in admissibility proceedings. The Board of Immigration Appeals refused, finding that Margulis had never “entered” Canada and so could not have returned to the U.S. The Seventh Circuit remanded, reasoning that immigration officers did not treat Margulis as a lawful entrant, but deemed him already present in the U.S.; if they had thought he was seeking admission they would have placed him in admissibility proceedings rather than removal proceedings. View "Margulis v. Holder" on Justia Law

Reyes, a citizen of Mexico, entered the U.S. in 1979 and was granted lawful permanent resident status in 1989. In 1993, he pled guilty to two felony counts of aggravated sexual abuse of a minor. He was sentenced to six months in prison and four years of probation. As a result, he was ordered removed in 2000. He later reentered unlawfully. In 2011, he was arrested and the 2000 removal order was reinstated. He asked the Board of Immigration Appeals to reopen his removal proceeding, arguing that his initial removal was in error because he was prevented from seeking discretionary relief from removal in 2000, but intervening Supreme Court decisions show that discretionary relief should have been available at that time. The Board denied the motion, finding it untimely and that the 90-day statutory deadline should not be equitably tolled. The Board also found that the discretionary relief he sought was not available to him, despite changes in the law, because he had reentered the country unlawfully. The Seventh Circuit denied a petition for review, citing 8 U.S.C. 1231(a)(5); Reyes is barred from section 212(c) discretionary relief and his removal proceedings may not be reopened because of his illegal reentry. View "Zambrano v. Holder" on Justia Law

Abdoulaye, a citizen of Niger, entered the U.S. on a nonimmigrant visa in 2002 and, several months later, sought asylum, withholding of removal, 8 U.S.C. 1231 and protection under the Convention Against Torture, claiming that he feared being sentenced to death or killed due to his planning of a military mutiny that was executed in 2002. Abdoulaye had been a corporal in the Nigerien military and a supporter of a left-wing political party loyal to the former president. . The Board of Immigration Appeals rejected the application, based on a finding that Abdoulaye’s participation in the mutiny amounted to “terrorist activity” within the meaning of the Immigration and Nationality Act, rendering him ineligible for any form of relief. The Board also found that Abdoulaye failed to show that it was more likely than not he would be tortured if returned to Niger. The Seventh Circuit denied relief, finding that the Board’s decisions were supported by substantial evidence. View "Abdoulaye v. Holder" on Justia Law

Yasinskyy, a Ukrainian citizen came to the U.S. in 2007 with an H-2B nonimmigrant visa, sponsored by a New York company for work as a temporary employee at a grocery store, 8 U.S.C. 1101(a)(15)(H); 8 C.F.R. § 214.2(h). After working for six weeks, he traveled to Oregon for better-paying employment and began the process for obtaining a commercial driver’s license. At his last exam, he was detained for being unlawfully present in the U.S. In removal proceedings, Yasnskyy applied for asylum claiming past persecution based on political opinion. He claimed to have been hospitalized, twice, with a concussion and bruised kidney after political demonstrations, to have been terminated from his job, and to have been repeatedly threatened. There was no prosecution, due to lack of evidence. An immigration judge denied his claims, stating that Yasinskyy did not show that the Ukrainian government was unwilling or unable to protect him from harm,. The Seventh Circuit denied a petition for review, finding the decision supported by substantial evidence. View "Yasinskky v. Holder" on Justia Law

Stokes was a public school teacher for more than 10 years. In 2000, he pleaded no contest to a charge of misdemeanor battery for indecently touching two boys who were his students. Stokes was sentenced to probation, with a prohibition on unsupervised contact with minors. Less than a month after sentencing, Stokes obtained permission to complete his probation in Thailand. Within weeks of his arrival in Thailand, he began seeking boys for sex. This continued for several years until someone tipped off the U.S. Immigration and Customs Enforcement Service, which, with the Royal Thai Police, searched Stokes’s home and recovered a camera, a computer, and compact discs containing thousands of images of Stokes’s sexual activity with Thai boys. Stokes was extradited and convicted of traveling in foreign commerce for the purpose of engaging in a sex act with a minor, 18 U.S.C. 2423(b). The Seventh Circuit affirmed, rejecting claims related to a procedural mistake in the extradition process and to the legality of the search. The Thai foreign ministry waived the “Rule of Specialty,” allowing the government to proceed on a substitute charge. The Fourth Amendment’s warrant requirement and the Warrant Clause have no extraterritorial application, but Stokes was protected by the Amendment’s touchstone requirement of reasonableness. The search was reasonable. View "United States v. Stokes" on Justia Law

Zivkovic, a Serbian, was admitted to the U.S. as a lawful permanent resident in 1966. In 1976, he pleaded guilty to burglary and received a sentence of two to six years. In 1978, he was convicted of attempted rape and was sentenced to four to 12 years. In 2010, he was convicted of criminal trespass to a residence with a person present and of aggravated battery, where the aggravating factor was the victim’s age. In 2004 Zivkovic was charged as removable as an alien convicted of an aggravated felony as defined in 8 U.S.C. 1101(a)(43)(G); for attempt or conspiracy to commit a crime defined in 8 U.S.C. 1101(a)(43)(A) (murder, rape, or sexual abuse of a minor); and under 8 U.S.C. 1227(a)(2)(A)(ii), as an alien convicted of two crimes. The BIA ordered removal because he had committed three aggravated felonies and was not eligible for special relief under 8 U.S.C. 1182(c). The Seventh Circuit granted Zivkovic’s petition, reasoning that two of his convictions are more than 35 years old and that the law has not remained static. The statutes are ambiguous and presumptions against retroactivity and implied repeal require remand. The court noted that even one of the convictions would guarantee near-automatic removal, 8 U.S.C. 1227(a)(2)(A)(iii). View "Zivkovic v. Holder" on Justia Law