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

In 2010, Chuchman, a 17-year-old student, joined the Ukrainian Democratic Alliance for Reform (UDAR), a political party that opposed then-president Yanukovych. In 2012, her university’s dean warned Chuchman that she could be expelled for her political activity. Two months later, police assaulted, arrested, and detained Chuchman at a rally. The dean again implored Chuchman to stop her political activity, saying she could be expelled. In 2013, Chuchman was assaulted by the police after attending another protest, suffering a broken nose, and a concussion; she was hospitalized for three weeks. Chuchman entered the U.S. using a cultural exchange visa. Two months later, Ukrainian police began searching for her. They sent summonses to her dormitory and to her parents’ house. While Chuchman was in the U.S., demonstrations and civil unrest broke out across Ukraine, culminating in Yanukovych’s ouster in 2014. UDAR merged with the new president’s party.Chuchman applied for asylum, withholding of removal, and protection under the Convention Against Torture. In Ukraine, the police continued to search for Chuchman, citing “public disturbances.” Chuchman testified that she feared reprisal from the many pro-Yanukovych officials who remained in office. The IJ found Chuchman credible but denied relief. The BIA affirmed. The Seventh Circuit denied a petition for review. Substantial evidence supports the conclusion that Chuchman’s experience in Ukraine did not rise to the level of persecution; she failed to present compelling evidence that the new government would persecute her if she returned. View "Chuchman v. Garland" on Justia Law

Mejia, a citizen of Mexico, entered the U.S. without inspection in 2005. His children are U.S. citizens. In 2011, he was placed in removal proceedings. His notice to appear did not include the date and time of the initial immigration hearing, required by 8 U.S.C. 1229(a)(1)(G)(i). A follow-up notice provided that information. Mejia appeared for all of his hearings. An IJ granted Mejia voluntary departure. Mejia did not depart. ICE placed him under an order of supervision. Mejia has complied with that order and has remained in the U.S.In 2018, the Supreme Court held (Pereira) that a notice to appear which fails to specify the time and place of a removal proceeding is insufficient to trigger the “stop-time” rule ending a non-citizen’s period of continuous presence in the United States. An undocumented person like Mejia must have 10 years of continuous presence in this country to become eligible for cancellation of removal. Mejia immediately sought to reopen the removal proceeding, reasoning that because the defective notice to appear did not trigger the stop-time rule, he had now accrued 10 years of continuous presence.The IJ and BIA denied Mejia’s motions. The Seventh Circuit denied a petition for review. Mejia forfeited any objection to the deficiency in the notice to appear by not timely raising it in the removal proceeding and has not shown cause for forfeiture nor prejudice resulting from the defect in the notice. View "Mejia-Padilla v. Garland" on Justia Law

Parzych, a 58-year-old Polish citizen, was admitted to the U.S. as a lawful permanent resident in 1967. He was convicted of burglary in Illinois in 2011 and again in 2015 for knowingly and without authority remaining in buildings (storage lockers) with intent to commit theft. He was charged as removable for committing aggravated felonies of burglary and crimes involving moral turpitude, 8 U.S.C. 1101(a)(43)(G), 1227(a)(2)(A)(ii)–(iii), and for committing aggravated felonies of attempted theft, sections 1101(a)(43)(G), (U), 1227(a)(2)(A)(ii)–(iii).The “categorical approach” to determine whether a state-law conviction qualifies as a removable offense compares the elements listed in the statute of conviction with the generic elements of the crime. When a statute of conviction proscribes some types of conduct that would constitute removable offenses and some that would not and is divisible, the “modified categorical approach” applies; a court may consult a limited class of documents to determine which alternative formed the basis of the conviction and compare it to the generic offense.An IJ applied the categorical approach and found that the location and intent elements of the Illinois statute were broader than the removable offenses of burglary and attempted theft. The Board reversed, finding the statute divisible. On remand, the IJ found Parzych removable. The Board affirmed that Parzych was removable for committing aggravated felonies of attempted theft and crimes of moral turpitude under the modified categorical approach. The Seventh Circuit vacated and remanded. The Illinois burglary statute is not divisible and the modified categorical approach does not apply. View "Parzych v. Garland" on Justia Law

Avila, a Mexican citizen, has lived continuously in the U.S. since he entered as a minor in 2008. He committed an infraction that led to a disorderly conduct charge in 2019. Days after he pleaded guilty to that charge, he was placed in removal proceedings. A Notice to Appear at a removal hearing must include “[t]he time and place at which the proceedings will be held,” 8 U.S.C. 1229(a)(1)(G)(i). The Notice that Avila received did not comply with that requirement. He later received a “Notice of Hearing” with those details.Avila moved to terminate his proceedings on the ground that the Notice he received was defective. The IJ denied that motion and ordered Avila removed. Although the BIA acknowledged that the Notice was noncompliant, it reasoned that Avila was not entitled to relief because he had not shown that the defects in the Notice prejudiced him in any way. The Seventh Circuit remanded. While the requirements are not jurisdictional but are mandatory claims-processing rules, entitlement to relief does not depend on a showing of prejudice. View "Avila de la Rosa v. Garland" on Justia Law

Ademiju immigrated to the U.S. in 2001 and had a green card. In 2011, he became involved in a scheme to defraud Medicare. He pled guilty to healthcare fraud, 18 U.S.C. 1347, and stipulated to a $1.5 million loss amount, acknowledging that “pleading guilty may have consequences with respect to his immigration status” and that he “affirms that he wants to plead guilty … even if the consequence is his automatic removal.” At sentencing, Ademiju personally acknowledged that his ability to stay in this country was not assured. His counsel told the court, “I’m not an immigration specialist … But it’s my understanding that … any sentence of less than one year … he would be at least eligible for a waiver.” Apparently, no one knew that statement was incorrect. The district court sentenced Ademiju to 11 months’ imprisonment plus $1.5 million in restitution.Ademiju was released from federal prison and transferred into ICE custody; he retained an immigration attorney who informed him that his offense of conviction and the stipulated loss amount subjected him to mandatory deportation. Ademiju filed a 28 U.S.C. 2255 motion to vacate his conviction because his attorney provided ineffective assistance of counsel, arguing that the statute of limitations should be tolled because he received incorrect advice from an attorney about his options for recourse within the limitations period and could not have discovered the problem himself due to the inadequacy of his prison’s law library. The Seventh Circuit affirmed the dismissal of his motion; Ademiju has not met the high standard for equitable tolling. View "Ademiju v. United States" on Justia Law

The Seventh Circuit denied the petition for review challenging the Board's denial of petitioner's asylum application. Petitioner challenges only the IJ's alternative basis for denial of his petition—the exercise of discretion to deny asylum. The court concluded that petitioner failed to address the separate and dispositive determination that his application is statutorily time-barred, despite the government pointing out this deficiency in its brief. Consequently, this failure is fatal to his petition.The court also denied the petition for review challenging the Board's denial of petitioner's application for withholding of removal. The court concluded that petitioner failed to establish any of the elements necessary for withholding of removal where the record does not show that he is likely to suffer persecution due to his experience as a witness to an incident of gang violence twenty years ago—much less that there is no substantial evidence to support the IJ's determination to that effect. In this case, the Board's conclusion that petitioner would not suffer future harm upon return to Mexico was supported by substantial evidence. View "Guzman-Garcia v. Garland" on Justia Law

Plaintiff's mother married a U.S. citizen in 1999 and divorced him in 2004 because of his violent behavior. Plaintiff had run away the year before, when she was 15, to escape the abuse. At issue is whether, after the divorce, plaintiff remained a "child" of her mother's ex-husband. Plaintiff's mother died shortly after the divorce and could not file a petition under the Violence Against Women Act (VAWA) on plaintiff's behalf. Plaintiff had to petition on her own behalf, and the agency rejected her application because a self-petition may be filed only by someone who "is the child" of an abusive U.S. citizen. Because, in the agency's view, plaintiff lost stepchild status in 2004, and only a person who "is" a child of an abusive parent may seek relief, the agency denied her application. However, the agency and the district court, relying on Matter of Mowrer, 17 I&N Dec. 613, 615 (1981), both concluded that even after divorce, a person remains a stepchild as long as "a family relationship has continued to exist as a matter of fact between the stepparent and stepchild."The Seventh Circuit held that, in the context of VAWA, "stepchild" status survives divorce. The court explained that someone who is a stepchild during a marriage remains one after divorce, when termination of "stepchild" status would defeat application of the substantive rule that abused stepchildren are entitled to an immigration benefit. The court clarified that Mowrer does not interpret VAWA. Accordingly, the court reversed and remanded. View "Arguijo v. United States Citizenship and Immigration Services" on Justia Law

In 1990, 18-year-old Perez entered the U.S. from Mexico without inspection. She was apprehended and was personally served with an Order to Show Cause, ordering her to appear for a deportation hearing at a time and place “to be set.” She was released on her own recognizance. A hearing was set for July 1992. The immigration court sent notice of the hearing to the New York address Perez provided upon being released. A second notice was sent by certified mail and a receipt bearing the signature of “Rebeca Perez” arrived at the immigration court. Perez insists that she never received either notice.The IJ found her deportable in her absence and sent Perez the decision. No appeal followed. In 2018, Perez moved to reopen those proceedings. The intervening 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), increased the requirements for the document used to initiate “removal,” mandating a Notice to Appear specifying the time and place of a hearing, 8 U.S.C. 1229(a)(1). IIRIRA also created new discretionary relief, “cancellation of removal,” available to certain non-citizens in active removal proceedings who demonstrate 10 years of continuous physical presence in the U.S. Under the “stop-time rule,” the period of continuous physical presence ends when a non-citizen receives a Notice to Appear. In 2018, the Supreme Court held (Pereira) that a Notice to Appear omitting the time and place of a removal hearing does not trigger the stop-time rule.The immigration judge, the BIA, and the Seventh Circuit denied relief. Pereira did not apply because Perez received an Order to Show Cause; Pereira concerned Notices to Appear. Perez was not in removal proceedings but had faced deportation proceedings. View "Perez-Perez v. Wilkinson" on Justia Law

Martinez-Baez, born in Mexico in 1980, claims that he unlawfully crossed the U.S.-Mexico border in 2000. The exact dates of his entries are unclear. Border agents returned him to Mexico three times in June 2000. Martinez-Baez claims that after his third return, he immediately re-entered and began working at a plastics factory. He filed his first federal tax return was in 2002. Martinez-Baez has three U.S.-citizen children. His daughter, born in 2012, has speech and language impairments that make it difficult for her to communicate.Martinez-Baez's Notice to Appear, dated April 2011, charged that he was removable under 8 U.S.C. 1227(a)(6)(A)(i). Martinez-Baez sought cancellation of removal, 8 U.S.C. 1229b. Cancellation is possible but discretionary, if the noncitizen has been physically present in the U.S. for a continuous period of not less than 10 years, has been a person of good moral character, has not been convicted of a specified offense, and establishes that removal would result in exceptional and extremely unusual hardship to a spouse, parent, or child, who is a U.S. citizen or lawful permanent resident. The IJ denied relief, holding that Martinez-Baez had failed to establish his continuous presence and hardship The BIA affirmed. The Seventh Circuit remanded. The IJ erred procedurally by failing to resolve whether Martinez-Baez’s testimony about the most important fact—his date of entry—was credible. The IJ and Board mischaracterized the evidence pertaining to the asserted hardship. View "Martinez-Baez v. Wilkinson" on Justia Law

E.F.L., a Mexican citizen, has lived in the U.S. for nearly 20 years. She has endured extreme domestic abuse. In 2018, DHS discovered E.F.L.’s undocumented presence, reinstated an earlier removal order, and scheduled her removal. E.F.L. applied for withholding of removal under the Immigration and Nationality Act and the Convention Against Torture and also filed a self‐petition under the Violence gainst Women Act (VAWA) with the U.S. Citizenship and Immigration Services (USCIS). An IJ and the BIA denied E.F.L.’s application for withholding of removal. The Seventh Circuit declined to review that decision.Although E.F.L.’s VAWA petition remained pending, DHS sought to execute E.F.L.’s removal order. E.F.L. filed a habeas petition, seeking injunctive relief, arguing that DHS would violate the Due Process Clause and the Administrative Procedure Act by executing E.F.L.’s removal order while her VAWA petition remains pending. The district court dismissed E.F.L’s habeas petition for lack of subject matter jurisdiction; 8 U.S.C. 1252(g) provides that no court has jurisdiction to review DHS’s decision to execute a removal order. While her appeal was pending, USCIS approved E.F.L.’s VAWA petition. E.F.L. submitted adjustment of status and waiver applications. She has not yet received work authorization. The Seventh Circuit dismissed the appeal as moot, noting that the district court lacked jurisdiction. View "E. F. L. v. Prim" on Justia Law