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

The defendant’s sentence, under the heading “additional imprisonment terms,” states that the “defendant is to be turned over to the proper immigration authorities for deportation proceedings upon completion of term of incarceration. If deported, defendant is to remain outside the United States and is not to return without the written consent of the Secretary of the U.S. Department of Homeland Security.” The Seventh Circuit struck the provision as unauthorized. Only an immigration judge may order removal, 8 U.S.C. 1229a(a)(3), unless the prosecutor and immigration officials request that the district judge hold a removal hearing, a request not made in this case. A district judge may order, as a condition of supervised release, that a defendant be turned over to immigration officials, but if there is no order of supervised release, as here, imposition of such a condition is ultra vires. The court noted that there is no need for the “added measure” in this case, because the defendant is an aggravated felon. An aggravated felon who is an alien is removable upon the completion of his prison sentence, removal proceedings must be begun before the end of his prison term, and he must be detained until completion, 8 U.S.C. 1226(c)(1)(B), 1228(a)(1)-(2), (3)(A). View "United States v. Zamudio" on Justia Law

The petitioner, a Chinese citizen, entered the U.S. in 2001, at the age of 18, and applied for asylum on the ground that if returned to China she would be punished for having refused to marry a Communist Party official. Her application for asylum was denied and in 2004 she was ordered removed. She stayed and applied to reopen her removal proceeding in order to apply for asylum and withholding of removal on the ground of changed conditions in China. In 2011 she had converted to Christianity, and she argued that if removed to China her religious beliefs would compel her to join a Christian church not recognized as legitimate by the Chinese government and to proselytize, which the government forbids, and as a result she would face persecution. The BIA rejected her argument, reasoning that her personal circumstances changed, as opposed to country conditions. The Seventh Circuit vacated, noting evidence of religious persecution in China. View "Shu Liu v. Holder" on Justia Law

Since entering the U.S. from Mexico in 1993, Garcia-Segura has had arrests. He was first removed in 2003 after serving two years in jail for possessing cocaine. Less than two months later, he was arrested in the U.S. for delivering cocaine to an undercover officer. After serving part of his nine-year prison sentence, he was removed a second time in 2007 but returned within three days. In 2009, he encountered immigration officials while incarcerated on charges of possession of cocaine and possession of a firearm by a felon. He was charged with unauthorized presence in the U.S. after removal, 18 U.S.C. 1326(a). He pleaded guilty and sought a 19-month reduction to account for time he served in county jail after immigration officials learned of his illegal presence but before he was charged. He argued that, had the government charged him when immigration officials first discovered him, he would have received concurrent sentences. The government responded that concurrent sentences would have been inappropriate because the state crimes were unrelated to the illegal-reentry and that his recidivism merited a more severe sentence. The district court imposed a sentence of 90 months’ imprisonment, within the guideline range of 77 to 96 months. The Seventh Circuit affirmed. View "United States v. Segura" on Justia Law

Bitsin, a citizen of Bulgaria, entered the U.S. in 2005. Before his visitor’s visa expired, Bitsin applied for a student visa, assisted by an attorney recommended by the college. Bitsin claimed that he believed that he could “just stay,” but not work, while his application was pending and that he was unable to locate the attorney. In 2007 removal proceedings, Bitsin applied for asylum, withholding of removal, and relief under the CAT. Bitsin testified that his father, a retired Bulgarian military officer, owned a private security company that threatened the interests of the Galev Brothers crime syndicate, also in the security services business. Bitsin testified concerning a shooting incident and that his father was taken into protective custody, while other families left the country. The Galev Brothers were acquitted; to Bitsin’s knowledge, his father remains under protection. Another cooperating witness was murdered while in police custody and his father’s neighbors were killed when a bomb exploded in their garage. An IJ held that Bitsin’s application for asylum was time-barred and that Bitsin had not established that he was more likely than not to suffer persecution should he be returned to Bulgaria. The BIA affirmed. The Seventh Circuit rejected a petition for review. View "Bitsin v. Holder" on Justia Law

Husband, Sirbu, and wife, Prodan, entered the U.S. as nonimmigrant tourists in 2009 and overstayed their visas. They then filed a timely application for asylum, withholding of removal, and relief under the Convention Against Torture. Sirbu’s persecution claim is based on politically motivated mistreatment that occurred in Moldova between 2000 and 2009; he claims to fear prosecution based on his active opposition to the Communist Party. The government responded by charging them as removable under 8 U.S.C. 1227(a)(1)(B). An immigration judge denied relief. The Board of Immigration Appeals affirmed. The Seventh Circuit granted their petition for review and remanded, finding that the immigration judge and the Board applied the wrong legal standard in holding that the facts did not “compel” a finding of past persecution. If the Board concludes that Sirbu has demonstrated past persecution, the burden will shift to the government to prove that changed circumstances mean that Sirbu’s fear of persecution in Moldova is no longer well-founded. View "Sirbu v. Holder" on Justia Law

The petitioner, a Chinese citizen from Fujian Province, entered the U.S. in 1997 and is the mother of two boys born in the U.S. She sought asylum on the ground that she is likely to be forcibly sterilized if returned to China. The immigration judge and the Board of Immigration Appeals denied her application on the ground that she has no well-founded fear of sterilization. The immigration judge also found that she could relocate to a part of China in which the one-child policy is not enforced as enthusiastically as in Fujian. The Seventh Circuit vacated, first noting that the 2007 petition was timely because the birth of a second child resulted in changed circumstances, 8 U.S.C. 1158(a)(2)(D). The petitioner claims that after the birth of that child, Chinese authorities, who may have learned of the birth from her parents’ customary party to celebrate it, ordered her (via a letter to her father) to report for sterilization and subsequently revoked her village registration. The court noted that forced sterilization and forced abortion in Fujian have been documented and stated that the Board has not attempted “to construct an empirical basis … for its skeptical attitude toward these applicants.” View "Chen v. Holder" on Justia Law

Avila applied for adjustment of status based on his marriage to a U.S. citizen in 1999. The couple has two daughters. He has been employed laying countertops since approximately 1997. DHS concluded that Avila was ineligible for adjustment of status based on its determination that he attempted to enter in 1997, by representing himself as a U.S. citizen, and that he actually entered at a later date without presenting himself for inspection. DHS charged that Avila was removable as an alien present without inspection or admission, 8 U.S.C. 1182(a)(6)(A)(I); and (2) as an alien who falsely represented himself to be a U.S. citizen for an immigration benefit, 8 U.S.C. 1182(a)(6)(C)(ii). Avila denied making a false claim of citizenship, but conceded removability as an alien present without being admitted or paroled, and sought relief under 8 U.S.C. 1229a(c)(4)(A). An Immigration Judge found him removable on both grounds and denied adjustment of status and voluntary departure. The Board of Immigration Appeal (BIA) affirmed. The Seventh Circuit vacated, holding that even assuming that Avila presented a baptismal certificate, there was no evidence indicating that he made any oral statements or even used the name of the person on the baptismal certificate. View "Avila v. Holder" on Justia Law

Defendant, a Mexican native, first entered the U.S. illegally before June 1988. He was convicted of receiving stolen property, auto theft, attempting to pass a fraudulent check, selling cocaine, and forgeries, and was deported in 1992. In 1994, he burglarized Nebraska construction companies. He was deported again in 1999. By 2005, defendant had returned and was convicted of burglarizing companies, stealing payroll checks, and fraudulently cashing checks. He was deported for the third time in 2008. In 2010 defendant stole blank checks from Illinois and Iowa businesses. Three banks cashed checks, losing more than $42,000. Defendant was charged with unlawful reentry, 8 U.S.C. 1326(a) and 1326(b)(2); bank fraud, 18 U.S.C. 1344; conspiracy to utter forged securities, 18 U.S.C. 371; and uttering forged securities, 18 U.S.C. 513(a). Defendant pleaded guilty unlawful reentry and to three bank fraud counts,. The district court sentenced him to a total of 84 months’ imprisonment, followed by 36 months of supervised release. The Seventh Circuit vacated the sentence. Neither party objected to the sentencing reports at the time, but both agree that the sentence was based on an improper U.S. Sentencing Guidelines range and that the error affected defendant’s substantial rights. View "United States v. Tovar-Pina" on Justia Law

Ni came to the U.S. in 2001 from Fujian Province, China. An Immigration Judge ordered him removed in 2003, but he has remained in the U.S., and has started a family. In 2011, following the birth of his second child, Ni moved to reopen his removal proceedings, arguing that he will personally face forced sterilization under China’s “one-child policy” if he returns to Fujian Province, a form of persecution based on “political opinion” for which asylum may be granted, 8 U.S.C. 1101(a)(42)(B). The Board of Immigration Appeals denied Ni’s motion, holding that his evidence was not sufficient to establish a change in circumstances or country conditions, as generally required when an applicant moves to reopen more than 90 days after entry of a final administrative order. The Seventh Circuit granted review, noting that courts of appeals have received scores of similar petitions involving Fujian Province in recent years, and have regularly upheld the BIA’s refusal to grant relief. “Routine can be numbing, however, and it can lead to errors. Here, the BIA failed meaningfully to address documents bolstering Ni’s assertion that family planning officials in and around his hometown recently launched a crackdown on those who flout the “one-child policy.” View "Ni v. Holder" on Justia Law

For more than two years, members of the Palestinian Islamic Jihad (PIJ), an organization that violently opposes the existence of Israel, tried to recruit Jabr to join their group. Jabr resisted because he is a member of Fatah, a political party that, according to Jabr, is open to cooperation with Israel. PIJ members harassed him, beat him, and labeled him a traitor to their cause. After surviving a brutal attack in 2006, Jabr fled to the U.S. Within a year of arriving, Jabr sought asylum, withholding of removal, and relief under the Convention Against Torture. Jabr claimed that he feared returning to Palestine because the same individuals associated with the PIJ that hurt him before will attack him again. The immigration judge denied his application. The Board of Immigration Appeals affirmed. The Seventh Circuit granted review, finding that the IJ and BIA overlooked material evidence demonstrating that Jabr suffered past persecution on account of his political opinion. View "Jabr v. Holder" on Justia Law