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

The Mungiki are a violent, outlawed sect, notorious for extortion, torture, and murder by dismemberment. The Kenyan government has been unable to bring the group under control. At age 14, Wanjiru accepted his teacher’s invitation to join the Mungiki, unaware of the group’s character. He was afraid to leave because the Mungiki punish defectors by execution. At age 20 he came to the U.S. on a student visa in 2005. He briefly attended school. He was arrested in 2009, following a sexual encounter with a woman he met in a nightclub while intoxicated. Wanjiru pleaded guilty to a misdemeanor and received a suspended sentence, requiring surrender to immigration authorities. He petitioned for withholding of removal under 8 U.S.C. 1231(b)(3) and deferral under the U.N. Convention Against Torture. The IJ found that Wanjiru was convicted of a “particularly serious crime,” was not persuaded of the Kenyan government’s acquiescence in the threat to Wanjiru, and denied relief. The BIA affirmed. The Seventh Circuit remanded, stating that the CAT does not exist only for persons with unblemished records. The possibility of deferring removal rather than withholding it exists for people who might be undesirables but who are entitled not to be sent to experience torture.View "Wanjiru v. Holder" on Justia Law

Clarke cooperated in a scheme to defraud her employer. The scheme netted more than $250,000; Clarke’s share was $50,000. She pled guilty to committing a fraudulent act that caused a loss of $8,000 and was sentenced to 14 months. Clarke was a lawful permanent resident of the U.S. An alien who is convicted of an aggravated felony is deportable, 8 U.S.C. 1227(a)(2)(A)(iii); “aggravated felony” includes an offense that involves fraud in which the loss exceeds $10,000. Removal proceedings were instituted after Clarke completed her prison sentence. She filed a 28 U.S.C. 2255 motion asking that her conviction be set aside because neither the judge nor her lawyer had advised her that she could be removed if convicted. Her lawyer had told her there might be “immigration consequences.” The district court denied the motion. She has been removed to Jamaica. The Seventh Circuit affirmed. The one-year statute of limitations begins to run on the date on which the conviction becomes final. A lawyer’s failure to advise his client concerning a critical consequence of conviction can be a “fact” supporting a claim of ineffective assistance, but in this case it could have been discovered through the exercise of due diligence within a year after the plea. View "Clarke v. United States" on Justia Law

Moyaho, a Mexican citizen, first entered the U.S. in 1995, “without inspection.” Since then, he has lived and worked in the U.S., paid taxes, and, with his wife, raised three children, each born in the U.S. In 2005, DHS instituted removal proceedings. -Moyaho admitted his unlawful status, but applied for cancellation of removal under 8 U.S.C. 1229b(b), which provides for cancellation if the alien has been continuously present for 10 years; displays good moral character; has not been convicted of specified offenses; and removal would result in “exceptional and extremely unusual hardship” to a qualifying relative. The application was denied on the ground that Moyaho did not demonstrate that his children would suffer qualifying hardship. The Board affirmed. He brought a number of motions, which were denied. The Seventh Circuit held that it lacked jurisdiction over most of Moyaho’s claims and that the Board did not err in denying his other motions. View "Cruz-Moyaho v. Holder" on Justia Law

Lara, a citizen of Mexico, was 19 when he first entered the U.S. illegally in 1985. His wife and child joined him; they had three more children, each a citizen of the U.S. by birth. Lara was deported following a 1999 conviction for selling $50 worth of cocaine. In 2001, he unlawfully returned to the U.S., pled guilty to illegal reentry, and was sentenced to 66 months’ imprisonment. The Seventh Circuit affirmed, rejecting a challenge to the district court’s application of U.S.S.G. 2L1.2(b)(1)(A)(i), which requires an offense level increase of 16 levels if, prior to deportation, the defendant is convicted of a drug offense that results in a term of imprisonment exceeding 13 months. Lara argued that he did not receive the sentence until his probation on the drug offense was revoked. The court found that he ultimately received a three-year sentence for the drug trafficking offense prior to deportation. The court also upheld the decision not to grant a downward departure under Note 8, U.S.S.G. 2L1.2, which applies to unlawful entry if a defendant has “assimilated” to the local culture, noting that Lara did not move to the U.S. until he was an adult and has a lengthy criminal history. View "United States v. Gonzalez-Lara" on Justia Law

Zheng, born in1984 in the People’s Republic of China, arrived in the U.S. illegally in 2001. After receiving a Notice to Appear, she filed applications for political asylum, withholding of removal, and protection under the Convention Against Torture, claiming persecution because of her practice of Falun Gong. An IJ rejected Zheng’s applications because her testimony was “rather inconsistent and almost completely unsubstantiated.” The Board affirmed and the Seventh Circuit denied an appeal. Zheng remained in the U.S. and, in 2010, married Jiang, with whom she has two children. In 2011, Zheng sought to reopen proceedings with the Board, based on the birth of her two children and increased enforcement of China’s family planning policy. The Department of Homeland Security opposed Zheng’s motion, arguing that it was not filed within 90 days of entry of a final administrative order of removal (8 U.S.C. 1229a(c)(7)(C)(i)) and was based on changed personal circumstances rather than a change in country conditions. The Board denied the motion. The Seventh Circuit denied review. View "Zheng v. Holder" on Justia Law

Husband and wife, Pakistani citizens, entered the U.S. in 2006 and applied for asylum several months later. In 1984, wife had left her native India for an arranged marriage. Her new hometown of Karachi was full of violence, crime, and corruption spurred by political and ethnic rivalries. Wife and her first husband began supporting the MQM party in 1988. By 1991, she became disillusioned by the party’s involvement in illegal activities. She began an extramarital romantic relationship with her current husband, divorced and remarried, and began receiving threats from MQM members. She never reported the threats because she feared losing her job and the MQM controlled the police. The couple survived three targeted incidents of violence between 2002 and 2005. The immigration judge noted their “consistent credible testimony” but denied their applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture. He concluded that only the kidnapping incident rose to the level of persecution but did not occur “on account of” their political opinion and that they had not shown that the government of Pakistan was unwilling or unable to protect them. The Board dismissed their appeal. The Seventh Circuit affirmed. View "Shaikh v. Holder" on Justia Law

Vrljicak arrived in the U.S. from Serbia under a work visa, which expired September 30, 2009.He did not leave and was in unauthorized status on July 14, 2010, when he applied for asylum on the ground that his native land would persecute him because of his sexual orientation. The Board of Immigration Appeals agreed with the IJ that Vrljicak took too long to seek asylum, 8 U.S.C. 1158 (a)(2)(B), but held that he is entitled to withholding of removal and remanded. The Seventh Circuit denied review, rejecting a challenge that the Board should have excused his delay under 8 C.F.R. 1208.4(a)(5)(iv), which reads: “The applicant maintained Temporary Protected Status, lawful immigrant or nonimmigrant status, or was given parole, until a reasonable period before the filing of the asylum application.” View "Vrljicak v. Holder" on Justia Law

Nunez illegally entered the U.S. in 1992. In 1998, his father’s I-130 Petition on Nunez’s behalf was approved. In 1999, Nunez was convicted of misdemeanor battery. Nunez contends that, on that date, he was illegally removed, but the record only shows that Nunez was subjected to expedited removal a week later, when he attempted to enter California with a resident-alien card for “Mendoza-Gutierrez.” Under oath, Nunez stated that the card was not his; that he lacked documentation to enter; that he had no immigration applications pending; and that he previously had never been in the U.S. Nunez was informed that he could not re-enter for five years. Nunez re-entered in 1999. The IJ concluded that Nunez was not eligible for cancellation of removal because he had not remained physically present in the U.S. for 10 years prior to application, 8 U.S.C. 1229b(b)(1). Before the Board ruled, his wife became a citizen and filed an I-130 petition. Following remand, an IJ held that Nunez was ineligible for adjustment of status because he had illegally re-entered. The Board agreed, although the previous removal order never had been reinstated. Nunez was ineligible for cancellation because he was not physically present for 10 years. The Seventh Circuit denied appeal. View "Nunez-Moron v. Holder" on Justia Law

In 1989, Cruz entered the U.S. without inspection. In 2005 a Notice to Appear issued, initiating removal proceedings. Cruz applied for cancellation of removal pursuant to 8 U.S.C. 1229b(b), which gives the Attorney General discretionary power to allow an alien to remain. The IJ concluded that Cruz met the requirement of 10 years’ continuous physical presence, that he was a person of good moral character, and that he had no disqualifying convictions on his record, but Cruz did not satisfy the final requirement: that the alien establish that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen. The Board affirmed. The Seventh Circuit denied several petitions, noting that his petition for asylum was untimely and that dangerous conditions in Mexico did not justify granting his petition in any event. There was no evidence of any improper motive directed personally against Cruz and there was a rational basis for the Board’s decision. View "Cruz-Mayaho v. Holder" on Justia Law

Lam, a citizen of Senegal, entered the U.S. on a visitor’s visa in 1994. In 1995, he adjusted his status to that of student, and in 2000, he adjusted his status to become a lawful permanent resident based on marriage to a citizen. After being found inadmissible due to a 2002 conviction for fraud, Lam sought a waiver under 8 U.S.C. 1182(h)(1)(B), as a spouse of a U.S. citizen who would suffer extreme hardship if the noncitizen is removed. Lam presented evidence that his wife suffered from depression. Lam was also asked about the events leading to his 2002 conviction. The Immigration Judge found that Lam had not shown that his wife would suffer hardship that reached the level of “extreme,” and that he failed to show rehabilitation because his testimony conflicted with a document in the record related to an investigation of an incident at a car dealership. The Board of Immigration Appeals dismissed an appeal. The Seventh Circuit vacated the removal order and remanded. The IJ and BIA overlooked material evidence related to Lam’s wife’s depression and improperly relied on a report to determine that Lam failed to show rehabilitation. View "Lam v. Holder" on Justia Law