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

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

Diaz entered the U.S. without inspection in 1995. He was placed in deportation proceedings. The notice of his hearing did not reach him. Zelaya failed to appear. A final order of deportation was entered in his absence. Zelaya later left the U.S. but re-entered before December 30, 1998. In 2014, following a traffic-related arrest, Zelaya successfully moved to reopen his deportation case. At a 2018 hearing, Zelaya moved for administrative closure of his deportation proceeding to allow “repapering,” by which a deportation proceeding that began under pre-1996 law can be converted into a cancellation-of-removal proceeding under 1996 legislation, 8 U.S.C. 1229b(b), to enable Zelaya to seek cancellation of removal, for which he is apparently legally eligible.The BIA ordered voluntary deportation, citing the Attorney General’s 2018 opinion, which sharply restricted the ability of immigration judges and the Board to close cases administratively. The Seventh Circuit granted a petition for review, noting that it has previously held that the Attorney General’s directive was contrary to law; “immigration regulations plainly grant immigration judges broad authority and discretion to take ‘any action … that is appropriate and necessary for the disposition’” of their cases. The BIA did not exercise its discretion according to law, guided by factors enumerated in earlier precedent. View "Diaz v. Rosen" on Justia Law

Meraz-Saucedo, a citizen of Mexico, is married to a Mexican citizen with whom he has young U.S.-citizen children. Meraz-Saucedo first attempted to enter the U.S. in 2003 and was returned to Mexico. He re-entered the U.S. without inspection in 2004. In 2013, he was served in removal proceedings, 8 U.S.C. 1229(a). The notice did not contain a specific date or time for the initial hearing. On December 4, 2013, Meraz-Saucedo received a Notice of Hearing, informing him of the date and time. Meraz-Saucedo appeared before the IJ with counsel, did not object to the defective notice, conceded removability under 8 U.S.C. 1182(a)(6)(A)(i), and informed the IJ that he sought asylum, withholding of removal, and protection under the Convention Against Torture, based on his purported fear of persecution and torture if removed to Mexico. He testified about physical abuse and threats his family received from the Sinaloa Cartel.The IJ denied relief. While his appeal was pending, he sought remand to apply for cancellation of removal under 8 U.S.C. 1229b(b). The Seventh Circuit denied a petition for review. Meraz-Saucedo forfeited his arguments concerning the defective notice and failed to present sufficient evidence that he would be tortured at the hands of, or with the acquiescence of, a government official. View "Meraz-Saucedo v. Rosen" on Justia Law

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