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

Defendant, a citizen of Colombia, illegally entered the U.S. in 1982. In 1985, he was convicted of drug offenses, 21 U.S.C. 846 and 841(a)(1), was sentenced to five years in prison; in 1987 he was deported to Colombia. About five years after his deportation, he reentered the U.S. and was arrested twice, but managed to avoid deportation. In 2010 he was arrested in Illinois for driving under the influence. Immigration and Customs Enforcement agents were informed of his illegal status. Defendant was indicted on one count of illegal reentry, 8 U.S.C. 1326(a) and 6 U.S.C. 202(4) and pleaded guilty pursuant to a plea agreement. The district court determined his criminal history category to be 3 and, after applying a 16-level enhancement (U.S.S.G. 2L1.2(b)(1)(A)), determined his offense level to be 21, resulting in a calculated Guidelines range of 46 to 57 months’ imprisonment. Neither the government nor defendant objected to this calculation. He was sentenced at the low-end of the Guidelines range to 46 months in prison, claiming that his 1985 conviction was stale and that the calculation overstated the seriousness of his current reentry offense. The Seventh Circuit affirmed. View "United States v. Marin-Castano" on Justia Law

Marinov, a citizen of Bulgaria, entered the U.S. in 2005 as a nonimmigrant exchange visitor and remained beyond the date authorized. He applied for asylum. He was charged with removability under 8 U.S.C. 1227(a)(1)(B). An attorney entered an appearance on Marinov’s behalf, conceded removability, and obtained transfer of venue. In December 2009, the immigration court served notice to Marinov’s attorney at the address provided on his appearance form, advising that a hearing was set for August 3, 2010. The attorney attended the hearing; Marinov did not. The IJ ordered removal in absentia. On September 24, Marinov, represented by new counsel, filed a motion to reopen based on a lack of notice, exceptional circumstances, and ineffective assistance of former counsel. He alleged that former counsel made misrepresentations to the IJ and included a copy of an attorney disciplinary complaint. The IJ denied Marinov’s motion, deciding that he received proper notice and had not shown that former counsel was informed of the allegations or afforded an opportunity to respond. The BIA rejected the argument that the ARDC complaint satisfied this requirement, concluding that the bar complaint and notice to counsel were two separate requirements. The Seventh Circuit denied review. View "Marinov v. Holder" on Justia Law

Rivas, a citizen of Mexico, entered the U.S. in 1970 as a lawful permanent resident. In 2009, DHS charged Rivas with removability because of a 1980 conviction for statutory rape. At his hearing Rivas argued that the conviction did not constitute an aggravated felony and that he was not removable. The IJ rejected the argument and a subsequent motion to reopen. In 2010 Rivas was removed to Mexico. Two months later Rivas filed a petition for habeas corpus. The district court dismissed the petition for lack of subject matter jurisdiction, finding the claim barred by 8 U.S.C. 1252(g), which prevents courts from hearing challenges to the execution of removal orders, and also that Rivas was not “in custody” as required under 28 U.S.C. 2241(c). The Seventh Circuit affirmed, stating that Rivas’s situation is sympathetic, but consideration was precluded by multiple jurisdictional bars. View "Rivas-Melendrez v. Napolitano" on Justia Law

In 1990, defendant, a Mexican citizen, illegally entered the US. Between 1994 and 2005, he was convicted of multiple crimes, including theft and drug offenses, and was deported twice. In 2009, he was convicted in state court of attempted aggravated kidnapping and sentenced to four years in prison. While serving that sentence, he was discovered by immigration authorities. He pleaded guilty to illegal reentry without a plea agreement, 18 U.S.C. 1326(a). At sentencing, after a 16-level enhancement pursuant to USSG 2L1.2(b)(1)(A), the district court determined an offense level of 12 and a criminal history category of IV. The corresponding range was 57-71 months in prison. The Seventh Circuit affirmed, rejecting arguments that: defendant was deprived of the opportunity to argue for a concurrent sentence and should therefore be given credit for time already served on his attempted aggravated kidnapping conviction; to avoid unwarranted sentencing disparities, a below-Guidelines sentence is appropriate to account for the lack of a fast-track program in the Northern District of Illinois; and that that the district court erred when it added a 16-level enhancement. View "United States v. Garcia-Ugarte" on Justia Law

Defendant, a 27-year-old Mexican citizen, pleaded guilty to being in the U.S. after being deported, 8 U.S.C. 1326(a), and was sentenced to 71 months, the top of the 57-71 month guidelines range. The Seventh Circuit affirmed, rejecting an argument that the judge should not have taken into account 41 arrests that had not resulted in convictions without determining that defendant had actually engaged in conduct for which he was arrested. A court may not rely on the prior arrest record itself in determining a sentence, but may consider underlying conduct detailed in arrest records where there is sufficient factual basis to conclude that the conduct actually occurred. For 15 arrests there was a summary either of a petition for adjudication of wardship or of the arrest report. The defendant did not question the accuracy of any of those and did not suggest that the other 26 arrests were ungrounded. The judge was entitled to assume that the arrests considered as a whole, coupled with five convictions, gave a more accurate picture of the likelihood of recidivism than the convictions and arrest summaries alone and justified the sentence. Given defendant’s criminal record, there was no basis for a cultural-assimilation adjustment. View "United States v. Lopez-Hernandez" on Justia Law

Mund, an American, married Liu, a Chinese woman in China. They moved to the U.S. For Liu to be admitted as a permanent resident, her husband had to sign an I-864 affidavit, agreeing to support his wife at 125 percent of the poverty level ($13,500 a year), if they divorced, 8 U.S.C. 1183a. They divorced two years later. Without relying on the affidavit, the divorce court ordered Mund to support Liu for one year at $500 a month, contingent on her proving that despite making at least four job applications a month, she had not found work. Mund refused to provide support specified in the federal affidavit because Liu was not seeking work. The district judge held that Liu was not entitled to support while not seeking work. The Seventh Circuit reversed, holding there is no duty of mitigation with respect to obligations under the affidavit. The court noted form language that the obligation continues “until my death or the sponsored immigrant(s) have become U.S. citizens, can be credited with 40 quarters of work, depart the U.S. permanently, or die.” The level of support is meager, so the sponsored immigrant has a strong incentive to seek employment, apart from any legal duty. View "Liu v. Mund" on Justia Law

Jawad, a Jordanian citizen, entered with his wife and son on a non-immigrant visa that expired in 1987. Before 1989, they had five more children in the United States. In 1998, they divorced. Six months later, Blankenship, a U.S. citizen, filed a visa petition, representing that she and Jawad had married. Blankenship later admitted that the marriage was fraudulent: Jawad had agreed to pay Blankenship $10,000. After ending his relationship with Blankenship, Jawad bought a home and invited his ex-wife and their children to move in with him. He did not divorce Blankenship. He was eventually charged as removable under INA 212(a)(6)(C)(i) for remaining in the country on an expired visa and fraudulently entering into a marriage to secure an immigration benefit. Four years later, USCIS approved a new immediate-family visa petition for Jawad, on his behalf by his daughter, a citizen who had reached her 21st birthday. Following a hearing, the IJ found Blankenship the more credible witness, primarily because she was not promised protection from criminal liability for her testimony and decided that Jawad failed to show he merited a favorable exercise of discretion. The BIA dismissed an appeal. The Seventh Circuit dismissed for lack of jurisdiction. View "Jawad v. Holder" on Justia Law

Petitioner was ordered removed to Mexico in 2004 and appealed to the Board of Immigration Appeals, which affirmed. Almost two years later, he moved to reopen based on ineffective assistance of counsel. A motion to reopen must be made within 90 days of the final administrative order of removal, 8 U.S.C. 1229a(c)(7)(C)(i). He did not make an equitable-tolling argument nor provide sufficient factual support for the Board to consider that argument. The Board held that the motion was time-barred. Two weeks later, moved for reconsideration, attaching new evidence for an equitable tolling argument. The Board denied the motion, holding that the evidence was insufficient and that new evidence may not be submitted with a motion for reconsideration. The Seventh Circuit dismissed an appeal for lack of jurisdiction. While a petition for certiorari was pending, the Supreme Court held that Congress intended courts to review denials of motions to reopen. On remand, the Seventh Circuit reviewed the merits and upheld the Board. Petitioner unsuccessfully moved the Board to reopen under its sua sponte authority. On appeal, he conceded that his motion was numerically barred and argued that his case presented “exceptional circumstances” under which the Board usually grants such a motion. The Seventh Circuit dismissed. The motion was committed to the Board’s discretion by law and was unreviewable.

In 1997 Javier unlawfully entered the U.S.; he married in 2001. In 2007 the bank hired wife. Husband, attempting to start a business, could not open a bank account without a social security number. He obtained an individual tax identification number. Wife named him a joint owner on her account and helped use his ITIN to open accounts of his own. The business failed. Husband returned to Mexico to deal with his citizenship. Wife revealed the situation to her supervisor, requesting time off to help husband obtain citizenship. The supervisor agreed and called the bank security officer, who was concerned that the accounts might implicate bank fraud laws. During a meeting, the security officer became angry and berated wife. Wife refused to attend another meeting without her attorney The bank terminated her employment and reported her activity to U.S. Immigration and Customs Enforcement and a consortium of area banks. Wife sued, claiming blacklisting, defamation, emotional distress, and employment discrimination, 42 U.S.C. 2000e. The district court granted the bank summary judgment. The Seventh Circuit affirmed, holding that any discrimination was not based on race or national origin, but on an unprotected classification, husband’s status as an alien lacking permission to be in the country.

Petitioners, citizens of the Philippines, entered the U.S. under nonimmigrant visas in 2003 and 2004. Wife’s employer petitioned on her behalf for alien-worker status, and she applied for adjustment of status She is a nurse, a skilled worker under 8 U.S.C. 1153(b)(3)(A)(i) or (ii). Husband applied for adjustment of status as her spouse. The petition for worker status was granted in late 2004. Subsequent applications for adjustment of status were denied because wife had not submitted evidence of certification to practice nursing; results of an English exam were pending. They reapplied for adjustment of status a few months later. The applications were denied. An IJ ordered removal, finding wife ineligible for adjustment of status under her second application because she filed it after living in the U.S. unlawfully for more than 180 days. The BIA dismissed an appeal and denied reconsideration. Petitioners moved to reopen in 2011, contending that they were newly eligible for adjustment of status because their daughter, a U.S. citizen age 21, had petitioned to adjust status on their behalf; those petitions had been approved. The Board denied the motion as untimely. The Seventh Circuit denied review, finding the Board’s interpretation of the statute and regulation reasonable.