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

After a long history of arrests for drunken driving and other offenses, Duron-Ortiz, a citizen of Mexico who entered the U.S. illegally in 1989, was served a Notice to Appear by the Department of Homeland Security. He sought cancellation of removal, but the Immigration Judge denied his application on the grounds that, because Duron-Ortiz had served more than 300 days for two recent drunken driving arrests, he could not satisfy the good moral character requirement for cancellation of removal. The Board of Immigration Appeals affirmed. The Seventh Circuit denied review. The statute, 8 U.S.C. 1229b(b)(1), defines “good moral character” in the negative, stating that anyone who has been confined in a penal institution for an aggregate of 180 days or more during the 10-year period cannot satisfy the standard. The court deferred to the Board’s determination that the period terminates when the IJ or Board issues a final administrative decision. The court rejected an argument that the 10-year period to establish continuous physical presence and good moral character cuts off when an alien is served an NTA. View "Duron-Ortiz v. Holder" on Justia Law

Klene, a citizen of the Philippines, applied for U.S. citizenship. USCIS denied the application after concluding that Klene’s marriage to a U.S. citizen had been fraudulent. Klene asked a district court for relief under 8 U.S.C.1421(c), which allows a judge to make an independent decision about an alien’s entitlement to be naturalized. USCIS opened removal proceedings. The court dismissed Klene’s suit, based 8 U.S.C. 1429, which provides: “[N]o application for naturalization shall be considered by the Attorney General if there is pending against the applicant a removal proceeding pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act.” USCIS acts as the Attorney General’s surrogate. The Seventh Circuit vacated and remanded. While a court cannot order the Attorney General to naturalize an alien, it can enter a declaratory judgment of entitlement to citizenship without violating section. A judgment declaring that Klene’s marriage was bona fide would bring the removal proceeding to a prompt close. This approach preserves the alien’s entitlement under section1421(c) to an independent judicial decision while respecting the limit that section 1429 places on the Attorney General’s powers. View "Klene v. Napolitano" on Justia Law

Pavlov, a citizen of Bulgaria, entered the U.S. in 2000 on a nonimmigrant visa and did not depart when it expired. In 2006 applied for asylum. The application included false assertions that he had entered in 2005, that he had been persecuted in Bulgaria because he is a gypsy, and that multiple attacks had broken his ribs and collarbone and knocked out two of his teeth. He repeated this story during an interview. About a year later, his wife, a newly-naturalized citizen, asked immigration officials to adjust his status to that of permanent resident. Pavlov withdrew his application for asylum, acknowledged that he entered in 2000 rather than 2005, and conceded that he is not a gypsy and was not persecuted. The IJ ordered removal, citing 8 U.S.C. 158(d)(6), which provides that if an alien has knowingly made a frivolous application for asylum and the alien has received the required notice, the alien is permanently ineligible. Pavlov had received the required notice. The Seventh Circuit denied review. Pavlov was warned twice: once in the original application form, and a second time before the interview. View "Pavlov v. Holder" on Justia Law

Liu, a 50-year-old citizen of China, came to the U.S. in 2000 on a nonimmigrant visa, after protesting the loss of his job at a state-owned factory. He overstayed and, in removal proceedings, requested asylum, withholding of removal, and relief under the United Nations Convention Against Torture. He testified that he was persecuted after protesting layoffs and was beaten in jail. He claimed that officials told his wife that he would face “serious consequences” if he continued to make trouble. He stated that he never belonged to any political organization in China or the United States and acknowledged that he “didn’t do anything to protest or criticize the government of China.” The Board of Immigration Appeals upheld the decision, denying relief and ordering removal. The Seventh Circuit affirmed. View "Liu v. Holder" on Justia Law

Tapia entered the U.S. illegally in 1992. He was removed to Mexico in 1997 following conviction for a hit-and-run accident. Tapia did not seek review, but reentered illegally and was again removed. He reentered again and DHS reinstated the 1997 removal order in 2010. Tapia contended that the 1997 order was invalid because he did not receive proper notice of his right to counsel and because his convictions did not meet the statutory definition of aggravated felonies. The Seventh Circuit rejected the claims as untimely and held that it lacked jurisdiction to review the agency’s decision to execute a removal order. Tapia filed a motion to reopen, which was rejected, and the Seventh Circuit dismissed for lack of jurisdiction. Changing the caption on the document from “motion for stay” to “motion to reopen” does not create a right of judicial review. The only thing that a court of appeals could review would be the original removal order and that review must be sought within 30 days of the order’s reinstatement. Tapia missed the deadline. View "Lemos v. Holder" on Justia Law

Medina first entered the U.S. illegally, at age 16, in 1982. He was deported after two 1989 convictions, one for selling or transporting cocaine and the other for attempted robbery. He returned and was convicted of illegal reentry and again deported. He entered unlawfully a third time and was convicted of being found in the United States in violation of 8 U.S.C. 1326(a). He appealed the 37-month sentence he received, contending that he should not have received a sixteen-level enhancement for being deported after a felony conviction for a “drug trafficking offense” where the imposed sentence exceeded 13 months or after a felony “crime of violence.” Medina argued that his 1989 convictions did not fall within those definitions under the 1989 edition of the United States Sentencing Guidelines and so the enhancement does not apply. The Seventh Circuit affirmed; the crimes qualify under the 2010 Sentencing Guidelines, which were the guidelines in effect at the time of Medina’s sentencing. View "United States v. Medina" on Justia Law

Kimani, a citizen of Kenya, entered the U.S. in 2000 on a visitor’s visa, overstayed, and, three years later, married a citizen. She applied for a visa on his behalf, and he filed a corresponding request for adjustment of status to that of lawful permanent resident. Investigation revealed that in 2003 Kimani had registered to vote and had represented that he was a U.S. citizen. In November 2004 he voted in the general election, violating 18 U.S.C. 611, and 8 U.S.C.1182(a)(10)(D)(i). An immigration judge denied Kimani’s petition and ordered his removal; the Board of Immigration Appeals affirmed. The Seventh Circuit denied a petition for review. Kimani’s problem is not that other people are ahead of him in a queue for visas; it is that he is ineligible for adjustment of status whether or not he has a visa. View "Kimani v. Holder" on Justia Law

Elizabeth, a citizen of the Philippines, married John, a U.S. citizen, in 2003 in the Philippines. The State Department issued a nonimmigrant K-3 visa pending action on John’s request for her permanent residence as the immediate relative of a U.S. citizen. After arriving in the U.S., Elizabeth obtained a driver’s license. The State of Illinois also sent her a voter registration card, and she voted in the 2006 election. Immigration officials discovered that Elizabeth had voted. She was ordered removed for violating 18 U.S.C. 611, which rendered her inadmissible and ineligible for benefit as John’s spouse, 8 U.S.C. 182(a)(10)(D)(i). The Board of Immigration Appeals affirmed. The Seventh Circuit remanded for determination of whether Elizabeth showed her passport and visa to the state official; whether that official raised the subject of voting knowing that she was an alien; and whether that official checked the box claiming citizenship after Elizabeth signed the forms. View "Keathley v. Holder" on Justia Law

El-Gazawy a citizen of Jordan, entered the U.S. in 1990 as a non-immigrant, overstayed, and failed to appear for special registration in 2003, required by the National Security Entry-Exit Registration System program. In 2006, the Department of Homeland Security served notice that he was removable under 8 U.S.C. 1227(a)(1)(B); 8 U.S.C. 1227(a)(3)(A) and 1305. At his hearing, El-Gazawy admitted the charges and stated that he would seek cancellation of removal (8 U.S.C. 1229b(b)) or voluntary departure (8 U.S.C. 1229c). The IJ allowed 90 days for the necessary paperwork and advised that failing to timely file fingerprints could result in denial of relief. With an additional schedule change, El-Gazawy had about 14 months to file the necessary paperwork. The IJ concluded that no good cause had been demonstrated for delay, deemed the cancellation claim abandoned, and granted voluntary departure. The BIA dismissed an appeal. El-Gazawy had been represented by attorney Abuzir throughout, but obtained new counsel for filing a motion to reopen, seven months later, arguing ineffective assistance of counsel. El-Gazawy claimed that he had given notice to Abuzir and had filed a claim with the Illinois Attorney Registration and Disciplinary Commission. The BIA denied his motions. The Seventh Circuit denied a petition for review. View "El-Gazawy v. Holder" on Justia Law

Laguna immigrated to the U.S. with his parents in 1967, and became a lawful permanent resident. In 2001 he was convicted of unlawful possession of a stolen motor vehicle, with other related offenses. Because those felonies qualified as crimes of moral turpitude under 8 U.S.C. 1227(a)(2)(A)(ii), an immigration judge ordered Laguna removed and required Laguna to obtain a Polish passport. In 2004, after he finished serving his state sentences, Immigration and Custom Enforcement released Laguna on an order of supervision, which also required Laguna to obtain a passport. In 2010 Laguna finally completed the requisite application. The Polish consulate confirmed that his passport would be available on April 21, 2010. Laguna refused to pick up the passport and was detained and convicted of willfully interfering with a final deportation order (8 U.S.C. 1253(a)(1)(B) and (C) and sentenced to 18 months’ imprisonment. The Seventh Circuit affirmed, upholding the district court’s exclusion of evidence that ICE’s liberal treatment of Laguna during supervision negated the element of intent.View "United States v. Laguna" on Justia Law