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

The Center lodged a FOIA request with the Department of Justice (DOJ) for records of communications between the Attorney General, the Office of the Attorney General and any Office of Immigration Litigation or Office of the Solicitor General lawyers related to 11 certified cases decided in 2002-2009. DOJ produced about 1,000 pages but withheld 4,000 pages, citing FOIA Exemption 5, which allows the withholding of agency memoranda not subject to disclosure in the ordinary course of litigation, 5 U.S.C. 552(b)(5). Exemption 5 encompasses the attorney work product, attorney-client, and deliberative process privileges. DOJ submitted a Vaughn index describing each document withheld, identifying documents reflecting discussions between attorneys working within different offices of issues related to immigration cases under consideration or on certification for decision by the Attorney General.The Center unsuccessfully argued that the documents contained ex parte communications outside Exemption 5's scope because the DOJ attorneys’ eventual litigation role taints the advice they provide the Attorney General at the certification stage; removal proceedings end in federal court litigation where those same attorneys are opposite the immigrant. The Seventh Circuit affirmed. The Office of Immigration Litigation and Solicitor General attorneys do not hold interests adverse to the noncitizen at the stage at which the Attorney General certifies a case for decision. “ To conclude otherwise would chill the deliberations that department and agency heads like the Attorney General undertake in confidence to execute the weighty responsibilities of their offices.” View "National Immigrant Justice Center v. United States Department of Justice" on Justia Law

Omorhienrhien came to the U.S. as a visitor from Nigeria in 2008 and began a relationship with Harris, a citizen. They married months later. Harris filed Form I-130 to give Omorhienrhien a path to residency based on their marriage. USCIS denied the petition upon discovering that Omorhienrhien had been legally married to another woman in Nigeria when he married Harris, though the Nigerian marriage had since ended. Omorhienrhien and Harris remarried and submitted a new petition. Omorhienrhien received a two-year conditional permanent residency in 2011, 8 U.S.C. 1186a(a)(1). Omorhienrhien and Harris divorced about six months after he obtained that status. Because Harris did not join him in a petition to remove the conditions, Omorhienrhien unsuccessfully sought a hardship waiver. In removal proceedings, an IJ rejected his claim that the marriage was in good faith. The divorce decree stated that the parties were married in December 2008 and had been separated since July 2009; there was a lease indicating that the two lived separately. The IJ noted the lack of any objective evidence that the couple married with the intent to share a life together. The BIA dismissed his appeal. The Seventh Circuit denied a petition for review, finding no legal errors. The IJ applied the correct standard of proof. View "Omorhienrhien v. Barr" on Justia Law

Alvarez-Espino, born in Mexico in 1970, entered the U.S. in 1996 without permission. Since then he and his wife have had four children, and he supports his family by running an upholstery business. In 2002, two men robbed him at gunpoint at a Chicago gas station. Five years later, he was arrested for drunk driving and, following a probation violation, ended up with a one-year prison term. In removal proceedings, 8 U.S.C. 1182(a)(6)(A)(i), his lawyer failed to realize that Alvarez-Espino had a chance at receiving a U visa for his assistance in solving the 2002 robbery. Alvarez-Espino changed lawyers, but after protracted proceedings, the Board of Immigration Appeals denied multiple requests for relief, leaving Alvarez-Espino at risk of removal and having to await a decision on his U visa application from Mexico. The Seventh Circuit denied his petition for review. In denying relief, the Board held Alvarez-Espino to an unduly demanding burden on his allegation of ineffective assistance of counsel but the law is equally clear that Alvarez-Espino’s ability to continue pursuing a U visa means that he cannot show prejudice from his attorney’s performance. View "Alvarez-Espino v. Barr" on Justia Law

Rocha entered the U.S. with her sons and presented herself, asserting that she had fled from a Mexican cartel. After passing a credible‐fear interview, she was paroled into the U.S. The family stayed with Torres, in Chicago. Torres was a violent drunk. He threatened and abused Rocha, once brandishing a machete. Neighbors witnessed the attack and called the police. Rocha and her sons relocated to Miami. Chicago police asked her to return. She did so and stayed in shelters for victims of domestic violence while cooperating with the police and testifying at Torres’s trial. Rocha’s cooperation entitled her to apply for a nonimmigrant “U visa,” which allows violent crime victims who provide assistance to law enforcement to remain in the U.S. for four years, 8 U.S.C. 1101(a)(15)(U).With respect to Rocha’s asylum petition, an IJ found Rocha removable but granted a continuance. Days after Rocha submitted her U‐visa application, the immigration court moved up the date of her hearing, leaving Rocha with only two days to prepare. The IJ found her ineligible for relief. Rocha’s counsel did not mention the U‐visa petition at the hearing, thinking that it would be pointless without application receipts. The BIA affirmed the denial of her applications for asylum, withholding of removal and protection under the CAT and summarily rejected her request for a remand to seek a continuance to pursue the U visa. The Seventh Circuit granted Rocha’s petition for review; she is entitled to a remand for the purpose of deciding whether her pending U‐visa application entitles her to a continuance. View "Guerra-Rocha v. Barr" on Justia Law

Meriyu, now 49 years old, is an Indonesian citizen who is of Chinese descent and of the Buddhist faith. She came to the U.S. in 2000 on a nonimmigrant visa. Meriyu claims she was prompted to leave by her mistreatment, based on her religion and ethnicity, and by violence in Indonesia. In 2002, charged with removability under 8 U.S.C. 1227(a)(1)(B), Meriyu sought relief from removal based on fear of persecution on account of race and religion. She was ordered removed after she failed to appear at a hearing; 14 years later, she moved to reopen the proceedings. Meriyu is married and has a 12-year-old child. She claims she did not appear because she had sustained injuries to her ankle and foot. The BIA upheld an IJ’s ruling that the motion was untimely and that she could not show a material change in country conditions since the hearing. Her two subsequent motions to reopen were also denied. The Seventh Circuit denied a petition for review. When compared to the 2003 conditions described in the State Department reports, current conditions in Indonesia do not reflect any “new threshold” of human rights abuses. Meriyu’s evidence did not suggest any prospect of persecution if she returned to Indonesia. View "Meriyu v. Barr" on Justia Law

Grayson does business under the name Gire Roofing. Grayson and Edwin Gire were indicted for visa fraud, 18 U.S.C. 1546 and harboring and employing unauthorized aliens, 8 U.S.C. 1324(a)(1)(A)(iii). On paper, Gire had no relationship to Grayson as a corporate entity. He was not a stockholder, officer, or an employee. He managed the roofing (Grayson’s sole business), as he had under the Gire Roofing name for more than 20 years. The corporate papers identified Grayson’s president and sole stockholder as Young, Gire’s girlfriend. Gire, his attorney, and the government all represented to the district court that Gire was Grayson’s president. The court permitted Gire to plead guilty on his and Grayson’s behalf. Joint counsel represented both defendants during a trial that resulted in their convictions and a finding that Grayson’s headquarters was forfeitable. Despite obtaining separate counsel before sentencing, neither Grayson nor Young ever complained about Gire’s or prior counsel’s representations. Neither did Grayson object to the indictment, the plea colloquy, or the finding that Grayson had used its headquarters for harboring unauthorized aliens.The Seventh Circuit affirmed. Although Grayson identified numerous potential errors in the proceedings none are cause for reversal. Grayson has not shown that it was deprived of any right to effective assistance of counsel that it may have had and has not demonstrated that the court plainly erred in accepting the guilty plea. The evidence is sufficient to hold Grayson vicariously liable for Gire’s crimes. View "United States v. Grayson Enterprises, Inc." on Justia Law

Baez-Sanchez, a citizen of Mexico, is removable. His conviction for aggravated ba]ery of a police officer renders him inadmissible, 8 U.S.C. 1182(a)(2)(A)(i)(I). He applied for a U visa, which is available to some admissible aliens who have been victims of crime in this country. An IJ granted a waiver of inadmissibility, 8 U.S.C. 1182(d)(3)(A)(ii). The BIA remanded with instructions to consider an additional issue. The IJ did so and reaffirmed. The BIA then concluded that the power to waive inadmissibility belongs to the Attorney General alone and may not be exercised by immigration judges. The Seventh Circuit held that 8 C.F.R. 1003.10(a) permits IJs to exercise all of the Attorney General’s powers, except those expressly reserved by some other regulation. The BIA concluded that the court's decision was incorrect and did not consider the issues remanded by the court. Baez-Sanchez filed another petition for review.The Seventh Circuit vacated, stating that it had “never before encountered defiance of a remand order.” Article III judicial power is not subject to disapproval or revision by another branch of government. The Attorney General, the Secretary, and the BIA are free to maintain, in another case, that the decision was mistaken but they are not free to disregard a mandate in the very case making the decision. An immigration judge has ruled in favor of Baez-Sanchez; all issues have been resolved. Baez-Sanchez may seek a U visa. View "Baez-Sanchez v. Barr" on Justia Law

The petitioners, both Mexican citizens, were never lawfully admitted to the U.S. Years ago, each was served with a Notice to Appear (NTA) for removal proceedings. The NTAs were defective; they did not list the date or time for an initial hearing. The petitioners were not present at their respective removal hearings. They were ordered removed in absentia. Both were removed to Mexico. Each illegally returned to the U.S. and each was indicted for illegal reentry, 8 U.S.C. 1326(a). In light of the Supreme Court’s 2018 Pereira v. Sessions decision, they moved to dismiss their indictments by collaterally attacking their underlying removal orders (8 U.S.C. 1326(d)) based on the defective NTAs. The Seventh Circuit affirmed the denials of their motions. The petitioners failed to demonstrate that they satisfy the requirements of section 1326(d). Neither exhausted administrative remedies by petitioning to reopen removal proceedings. Catching the errors in the deficient NTAs would not have led to non-discretionary relief from removal; if either had alerted the immigration court of the NTA’s omissions, ICE could have proceeded with removal by serving a new, compliant NTA. Pereira addressed the “narrow question” whether an NTA that omits the time or place of an alien’s removal hearing triggers the statutory stop-time rule and terminates the period of continuous physical presence in the U.S. necessary for an alien to be eligible for discretionary cancellation of removal. View "United States v. Rangel-Rodriguez" on Justia Law

Vasquez-Abarca’s parents brought him to the U.S. in 1986. In 1995, at age 14, he was arrested for having sex with a 12-year-old but told authorities that he was either 16-17 years old and was convicted of a felony sex offense. He was deported in 1997. Vasquez-Abarca reentered illegally and was arrested for disorderly conduct. In 2001, he was convicted of failing to register as a sex offender and charged with illegal reentry, 8 U.S.C. 1326(a). He was sentenced to 57 months in prison. He was deported in 2005. Vasquez-Abarca reentered in 2006. In the following years, he committed multiple driving-related offenses, resulting in two felony convictions in Georgia; after his release, he was sentenced in Illinois to an additional 24 months for violating the terms of his supervised release on the illegal reentry conviction. He was deported in 2015. Vasquez-Abarca illegally re-entered again in 2016. He was arrested on an outstanding warrant for using a fake driver’s license and was convicted of a felony.Vasquez-Abarca also pleaded guilty to illegally reentering. The guidelines range was 30-37 months. The defense argued that Vasquez-Abarca’s driving violations stemmed from his lack of legal residency status. The court imposed a sentence of 72 months; 8 U.S.C. 1326(b)(2) authorized a sentence of up to 20 years. The Seventh Circuit affirmed. The sentence was a reasonable exercise of the judge’s discretion under 18 U.S.C. 3553(a). The judge gave a sufficient explanation for the decision, based primarily on Vasquez-Abarca’s criminal history and that a previous 57-month sentence for the same crime had not deterred him. View "United States v. Vasquez-Abarca" on Justia Law

Simental-Galarza unlawfully entered the U.S. in 2001. He married a U.S. citizen in 2013; they divorced three years later. Simental-Galarza was charged as removable under 8 U.S.C. 1182(a)(6)(A)(i), for having entered and remained without lawful admission. Simental-Galarza sought cancellation of removal as a battered spouse under 8 U.S.C. 1229b(b)(2), alleging that his removal would result in extreme hardship. He offered evidence of physical, verbal, and psychological abuse and that the abuse left him depressed. His sister-in-law confirmed that since the divorce, Simental-Galarza rarely talked, never laughed, and did not trust people. A licensed clinical social worker diagnosed him with anxiety, severe depression, PTSD, and dependent personality disorder and advised that he continue therapy in a stable, supportive environment. His parents are deceased and five siblings live here. He has steady work. His sister-in-law predicted that if Simental-Galarza were removed, he would “shut down” and that Mexico did not have the mental health resources that are available here. The IJ rejected his claim. The BIA dismissed Simental-Galarza’s appeal, finding that he had not shown that he could not obtain work in Mexico and that, although Mexico can be violent, Simental-Galarza had not shown that he would personally face violence or “that he could not obtain treatment for his anxiety and depression.” The Seventh Circuit denied a petition for review. The IJ and BIA adequately evaluated the relevant factors and evidence. View "Simental-Galarza v. Barr" on Justia Law