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

The Okeres, U.S. citizens, are trying to get their eight-year-old son from Nigeria to the United States. They applied for a “certificate of identity,” which validates the identity of a person living abroad who purports to be a U.S. citizen but has not presented enough evidence of citizenship to obtain a passport, 8 U.S.C. 1503(b). They sued, asserting that, after their son finally received a travel document from the State Department, he has been prevented from boarding a flight to the U.S. because the Consulate General refused to verify the certificate’s authenticity with the airlines with which they had booked flights for their son.The district court dismissed the Okeres’ complaint for lack of subject matter jurisdiction. The Seventh Circuit affirmed. The Okeres identified no legal authority compelling the Consulate General to verify the authenticity of the certificate to the airlines. None of the federal statutes the Okeres invoked confers jurisdiction. Nor do any of the provisions identified in the State Department’s Foreign Affairs Manual create individual rights or impose enforceable duties on a Consulate General when issuing a certificate of identity. The court stated that its decision was “most unsatisfying, for it is impossible to read the parties’ briefs without concluding that something else is going on here.” View "Okere v. United States" on Justia Law

Mexican citizen Hernandez-Alvarez was a permanent U.S. resident when, in 2002, he was convicted of indecent solicitation of a child. DHS initiated removal on the grounds that his conviction constituted an aggravated felony. Hernandez-Alvarez argued that the conviction did not qualify as an aggravated felony. He was removed before the Board of Immigration Appeals acted on his motion for reconsideration. The Board determined that his removal constituted a withdrawal of that motion. Fifteen years later, Hernandez-Alvarez moved for reconsideration and reopening, citing two Supreme Court decisions: Esquivel-Quintana (2017), and Pereira (2018). He argued that his motion was timely because it merited equitable tolling; alternatively, he requested that the Board invoke its authority to reopen his proceedings sua sponte. The Board concluded that equitable tolling was not warranted because Hernandez-Alvarez failed to show due diligence; it rejected his argument based on Pereira that the IJ did not have jurisdiction over his removal proceedings and declined to exercise its power to reopen the proceedings sua sponte.The Seventh Circuit denied his petition for review. Hernandez-Alvarez failed to exhaust his remedies before the Board for his argument that his 2019 motion is timely because it relates back to his 2004 motion. Hernandez-Alvarez did not diligently pursue his rights in the two years following the Esquivel-Quintana holding that a conviction under a state statute criminalizing consensual sexual intercourse between a 21-year-old and a 17-year-old does not qualify as sexual abuse of a minor under the Immigration and Nationality Act. The Board did not commit legal error in declining to reopen his proceedings. View "Hernandez-Alvarez v. Barr" on Justia Law

In 2009, Barrados-Zarate, a citizen of Mexico, was charged as removable. He had been in the U.S. for more than a decade and applied for cancellation of removal, 8 U.S.C. 1229b(b)(1). He has two children who were born in the U.S., and contends that his “removal would result in exceptional and extremely unusual hardship.” Barrados-Zarate asserted that, if he is removed, his partner (a Mexican citizen) and their children will accompany him but the rural area where he would settle has poor health care, deficient educational opportunities, fewer available jobs, and a high crime rate.The IJ denied relief. The BIA dismissed an appeal, explaining that the children will receive a free public education, do not appear to be in special need of medical care, and will have the support of Barrados-Zarate’s extended family. Barrados-Zarate sought remand to address the crime rate in Mexico.The Seventh Circuit denied relief, citing failure to exhaust administrative remedies with respect to the prevalence of crime or violence in Mexico or any of its localities. A court of appeals may not set aside an administrative decision that passes in silence a topic that the parties themselves have passed in silence. The court further noted that the statute requires “exceptional and extremely unusual hardship” to U.S. citizens; a risk encountered by everyone who lives in Mexico cannot be “exceptional and extremely unusual.” View "Barrados-Zarate v. Barr" on Justia Law

Shuhaiber, who is confined to a wheelchair, sued the Illinois Department of Corrections under the Americans with Disabilities Act and Rehabilitation Act. He alleged that the Stateville Center failed to accommodate his disability by confining him to a cell unsuited to the use of a wheelchair and that he was transported to physical therapy in vans that were not ADA-compliant, leaving him to depend on an officer to lift him. The district court dismissed the complaint, determining that Shuhaiber failed to allege that he was deprived of access to facilities or services or that the vans caused him to miss medical appointments.Shuhaiber appealed and sought permission to proceed without prepaying the requisite filing fee. Meanwhile, Shuhaiber, a native of the United Arab Emirates, had been transferred to DHS custody for removal from the United States. Shuhaiber, as a frequent filer of federal lawsuits, had accumulated more than three strikes under the Prison Litigation Reform Act for filing frivolous lawsuits and would have had to prepay the filing fee to appeal the dismissal of his claims. Doubting that Shuhaiber was still a “prisoner,” the district court granted his motion to proceed in forma pauperis.The Seventh Circuit affirmed that the appellate filing-fee bar does not apply where the appellant is being held by immigration authorities and no longer is a “prisoner” within the meaning of the PLRA. The district court was, nonetheless, right to dismiss his claims. View "Shuhaiber v. Illinois Department of Corrections" on Justia Law

Jimenez-Aguilar, a 14-year-old citizen of Honduras, entered the U.S. without inspection. In 2014, he was arrested for domestic assault. Jimenez-Aguilar sought cancellation of removal, arguing that his removal would cause “exceptional and extremely unusual hardship” to his spouse and children, all U.S. citizens, 8 U.S.C. 1229b(b)(1)(D). He obtained modifications of criminal convictions that made such relief unavailable. An IJ nonetheless denied his request, finding that Jimenez-Aguilar had not shown “exceptional and extremely unusual hardship.” The BIA rejected Jimenez-Aguilar’s contentions that his counsel rendered ineffective assistance by discouraging him from seeking asylum and that the IJ should have notified him that asylum or withholding were possible. A regulation requires an IJ to provide such notice when “an alien expresses fear of persecution or harm." Jimenez-Aguilar alerted the IJ that he fears vicious criminal gangs and stated two of his cousins and an uncle had been killed by gangs; his mother had obtained asylum because of gang violence. The BIA found that Jimenez-Aguilar “had a reasonable opportunity to apply for asylum” without the need for a warning.The Seventh Circuit remanded. The regulation does not ask whether an alien had a “reasonable opportunity” to seek asylum without advice from the IJ. Jimenez-Aguilar needed only to express fear of persecution or harm of the type that could render him eligible for asylum or withholding of removal; he did not need to express his fear in a way that would make his eligibility for such relief “apparent.” View "Jimenez-Aguilar v. Barr" on Justia Law

Salazar-Marroquin, a Mexican citizen, entered the U.S. with a B-2 visitor’s visa in 2000 at age 16 and stayed despite the expiration of his visa. In 2010 he was arrested for driving without a license and was served with a Notice to Appear charging him as removable under 8 U.S.C. 1182(a)(6)(A)(i), with a time and date for his hearing “to be set.” Salazar-Marroquin then received two Notices of Hearing, causing confusion, he says, that led him to miss his removal hearing. He was ordered removed in absentia. Two motions to reopen were denied.His third motion to reopen asserted that he had been charged incorrectly because, instead of entering the country illegally, he had been admitted on a visa; because he was not removable as charged, his 10 years’ continuous presence should allow him to seek cancellation of removal if a new Notice to Appear issued. He also asserted that he should be allowed to seek adjustment of status based on his marriage to a U.S. citizen. Salazar-Marroquin filed a supplemental motion to terminate his removal proceedings because his Notice to Appear, lacking the specific time or place of the removal proceedings, was deficient and did not trigger the “stop-time” rule under 8 U.S.C. 1229b(d)(1).The Seventh Circuit held that Salazar-Marroquin is entitled to have the Board of Immigration Appeals take a fresh look at his motion to have his case reopened based on evidence that he entered legally, despite the generally applicable time-and-number limits on motions to reopen. View "Salazar-Marroquin v. Barr" on Justia Law

In 2008, Lopez-Garcia’s husband left Guatemala for the U.S. In 2014, Lopez-Garcia and her three minor children entered the U.S. without valid entry documents. Immigration officers apprehended them. An asylum officer found that she demonstrated a credible fear of persecution or torture in Guatemala. Lopez-Garcia and her children were placed in removal proceedings under 8 U.S.C. 1229a. Lopez-Garcia, with counsel, sought asylum listing her children as derivative beneficiaries. She described her experiences as a single mother in Guatemala, which included threats against her children.An IJ found that the threats did not qualify as past persecution and did not find her membership in the proposed particular social group of “Guatemalan females living with her children alone in their country, as their husbands had migrated to the United States and are not able to support or protect themselves and their children” to be the persecutory motive of the men who made the threats. Lopez-Garcia did not show that the Guatemalan government was unwilling or unable to protect her nor did she show a well-founded fear of future harm. The IJ denied the application for protection under the Convention Against Torture. The BIA affirmed. The Seventh Circuit denied a petition for review, finding no abuse of discretion. View "Lopez-Garcia v. Barr" on Justia Law

Marquez and her 12-year-old daughter, Diana applied for admission into the U.S. at the California border. Marquez sought asylum and withholding of removal based on her belief that she could not live as an openly gay woman in Mexico without being persecuted. Marquez claims she received threats (via texts, social media, and letters) of physical harm to herself and her children. She reported the threats to the police, who did not help her. The threats stopped within four months. Marquez testified that she is concerned that her sexual orientation would limit her opportunities to work in Mexico and that other children might bully Diana for having a gay mother. Diana had attempted suicide because her peers at school had bullied her for reasons unrelated to her mother’s sexual orientation. Marquez fears that further bullying could trigger Diana again to try to take her own life.The IJ denied the applications. She found Marquez credible and characterized her experiences in Mexico as “unsettling,” but not sufficiently imminent or severe to establish persecution. The IJ found that the threats stemmed not from her status as a gay person but from a personal dispute with an ex‐girlfriend; Marquez had not shown a well‐founded fear of future persecution. The BIA affirmed, noting reports of “positive developments" concerning the rights of LGBT persons in Mexico.” The Seventh Circuit denied a petition for review, finding the decision supported by substantial evidence. View "Escobedo-Marquez v. Barr" on Justia Law

Morales, a citizen of Mexico, entered the U.S. without inspection as a child. As an adult shooting victim, he petitioned for U nonimmigrant status, a special visa for victims of certain crimes, 8 U.S.C. 1101(a)(15)(U). While his petition was pending, he was charged as removable under 8 U.S.C. 1182(a)(6)(A)(i) as a noncitizen present in the U.S. without being admitted and under section 1182(a)(2)(A)(i)(II) for a 2014 conviction for possession of marijuana. Morales cited his pending U visa petition as a defense to removal. The immigration judge agreed to waive both grounds of inadmissibility to allow him to pursue the U visa petition but later ordered Morales removed as charged on those same grounds. The Seventh Circuit remanded to the BIA. The court rejected an argument that the I’s initial waiver of both grounds of inadmissibility precluded their use as grounds for an order of removal; Morales’s position would effectively turn the inadmissibility waiver into a substitute for the U visa itself. Morales had, however, asked the IJ to continue or administratively close his case instead of ordering removal. The IJ entered the removal order based on the conclusion that those alternative procedures were inappropriate, and the BIA affirmed on the same basis. Those alternatives were wrongly rejected. View "Morales v. Barr" on Justia Law

Dijamco’s mother, a U.S. green card holder, filed a visa petition on Dijamco’s behalf in 1992. Though the petition received approval, Congress restricts the number issued each year. After four years of waiting in the Philippines, Dijamco had not received a visa; she used fraudulent papers to enter the U.S. In 2005, a visa became available, allowing Dijamco to seek a green card. USCIS denied Dijamco’s application. While her administrative appeal was pending, Dijamco’s mother died, which automatically revoked Dijamco’s visa petition. USCIS dismissed her appeal based on changed circumstances. Dijamco attempted to revive her visa petition. The day after USCIS denied her request for humanitarian reinstatement, Congress enacted an amendment, providing that the death of the petitioning family member did not automatically preclude a beneficiary from receiving a visa, 8 U.S.C. 1154. The agency determined that the amendment did not apply and stated that it would not exercise its equitable discretion to reopen Dijamco's adjustment-of-status application because she entered the country fraudulently.DHS has not taken action to compel her removal, which would have provided a pathway for judicial review. The Seventh Circuit concluded that the district court lacked subject matter jurisdiction to consider any of Dijamco’s claims. The Administrative Procedure Act’s general provision authorizing judicial review of final agency actions yields to immigration-specific limitations. USCIS exercised unreviewable discretion in revoking Dijamco’s petition and refusing to reinstate it. View "Dijamco v. Wolf" on Justia Law