Articles Posted in Immigration Law

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Shabo immigrated to the U.S. in 1985. In 1992, at the age of 25, he was convicted of an aggravated felony: possession with the intent to deliver 50-225 grams of cocaine. He served 60 months of imprisonment. An immigration judge ordered his removal to Iraq based on his conviction for an aggravated felony and a crime relating to a controlled substance. The BIA denied his appeal. Because the Iraqi government was not issuing travel papers, Shabo remained in the U.S. Iraq began issuing travel papers last year. Shabo moved to reopen his 1998 BIA proceedings to seek protection under the Convention Against Torture, claiming that, as a Chaldean Christian, he faces likely torture in Iraq. He concedes that he is deportable under 8 U.S.C. 1227(a)(2)(A)(iii) and (B)(i). He argued that the circumstances in Iraq have changed considerably since 1997 when the IJ ordered his removal. The BIA found his petition untimely; that the changed-country-conditions exception does not apply to Convention Against Torture applications; and that Shabo had not presented sufficient evidence that he was “more likely than not” to be subject to torture. The Sixth Circuit dismissed his appeal, citing 8 U.S.C. 1252(a)(2)(C): “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D)” unless the matter involves constitutional claims or questions of law. View "Shabo v. Sessions" on Justia Law

Posted in: Immigration Law

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Gutierrez, a citizen of Bolivia, has been a U.S. Lawful Permanent Resident since her 1980 admission. In 2012, she pleaded guilty to credit card theft, Virginia Code 18.2-192(1). She had prior convictions for petty larceny and for prescription fraud, DHS initiated removal under 8 U.S.C. 1227(a)(2)(A)(ii), based on her convictions for petty larceny and prescription fraud, as crimes involving moral turpitude. Gutierrez applied for cancellation of removal under 8 U.S.C. 1229b(a). DHS argued statutory ineligibility because she had been convicted of an aggravated felony in 2012, triggering 8 U.S.C. 1101(a)(43)(G). An IJ concluded that Gutierrez was ineligible for relief. The BIA employed the categorical approach; found Virginia Code 18.2-192(1) overbroad because the statute contained at least one subdivision, under which “a person can be convicted . . . absent proof of an ‘intent to deprive’ the rightful owner of the property.” The BIA then determined that the section was divisible because its subdivisions “criminalize[d] diverse acts, committed with different mental states." The BIA reasoned, given that the evidence that the 8 U.S.C. 1229b(a)(3) “aggravated felony bar ‘may apply’,” applied 8 C.F.R. 1240.8(d) and required Gutierrez to “prove by a preponderance of the evidence that the bar [was] inapplicable.” The Sixth Circuit affirmed. Where an alien was convicted under a divisible criminal statute and the record is inconclusive as to whether the conviction was for an aggravated felony, such inconclusiveness defeats the alien’s eligibility for relief. View "Gutierrez v. Sessions" on Justia Law

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Diaz entered the U.S. in 2002. She was apprehended in 2007 and placed in removal proceedings. At a 2012 hearing, Diaz sought asylum and withholding of removal, claiming that she believed the La Familia drug cartel, would seek revenge for her brother’s refusal to work for them. The IJ found that Diaz’s asylum application untimely, assessed her claim under the higher “clear probability of persecution” standard for withholding of removal, and denied relief, noting that the cartel had not harmed or threatened her or anyone in her family other than her brother. The BIA dismissed an appeal. Diaz was allowed to remain in the U.S. She received work authorization and regularly reported to ICE. In 2017, Diaz learned that her father had been kidnapped by the Knights Templar Mexican cartel and that the kidnappers stated that they were looking for Diaz’s brother. They specifically mentioned Diaz and threatened to hurt family members. Diaz moved to reopen and to stay removal, citing “changed country conditions.” ICE apprehended Diaz outside her home and scheduled her removal. The BIA denied her stay of removal. The Sixth Circuit dismissed her petition for review. Diaz was deported. The BIA then declined to reopen. The Sixth Circuit vacated. The BIA failed to credit the facts in Diaz’s declarations, which undermined its conclusion and abused its discretion in summarily rejecting Diaz’s Convention Against Torture argument that she could not safely relocate internally in Mexico. View "Trujillo Diaz v. Sessions" on Justia Law

Posted in: Immigration Law

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Undercover officers attempting a controlled purchase of methamphetamine arrested Estrada upon finding meth in his pocket and a rifle and ammunition in his car. He pleaded guilty to possession of a firearm by an unlawful user of a controlled substance. Because of this conviction for an aggravated felony, 8 U.S.C. 1101(a)(43)(E)(ii), Estrada—a green-card holder—was placed in removal proceedings. Estrada appeared later with counsel, who conceded Estrada’s removability. Noting the unavailability of other relief, the IJ ordered Estrada removed to Mexico. Estrada was deported in 2009. Six years later, law enforcement discovered Estrada in the United States. He was charged with illegal reentry following deportation, 8 U.S.C. 1326(a); (b)(2). Estrada moved to dismiss, by collateral attack on the underlying deportation order, arguing that the IJ violated his due process rights by failing to advise him of the possibility of discretionary relief from removal under section 212(h) and alleging ineffective assistance of counsel. The Sixth Circuit affirmed the denials of Estrada’s motions to dismiss. A defendant charged with unlawful reentry may not challenge the validity of his deportation order unless he demonstrates that: he exhausted administrative remedies; the deportation proceedings improperly deprived him of the opportunity for judicial review; and the entry of the order was fundamentally unfair. Estrada had no constitutionally-protected liberty interest in securing discretionary relief and, therefore, cannot establish that the order was fundamentally unfair. View "United States v. Estrada" on Justia Law

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Mokdad, a naturalized U.S. citizen, sought injunctive relief against the Attorney General, the FBI, and the Director of the Terrorist Screening Center (TSC) based on alleged instances where he was denied boarding on commercial airline flights between the U.S. and his native country, Lebanon. Claiming that his application for redress under the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP) was not adequately resolved, he requested that the court order his removal from the No Fly List and any other such list. The Sixth Circuit reversed the district court’s conclusion that it lacked subject matter jurisdiction On remand, TSC re-examined Mokdad’s DHS TRIP request, notified him that he was not on the No Fly List, and issued a declaration that Mokdad is not on the No Fly List and will not be placed back on the list based on the currently available information. The district court dismissed. The Sixth Circuit affirmed. Mokdad’s case is moot in light TSC’s declaration. Even if Mokdad has been placed on another watch list, or is experiencing delays as he alleged, Mokdad did not identify any other lists or defendants, precluding effectual relief. If Mokdad believes that he is on another government list, the remedy is to file a new action. View "Mokdad v. Sessions" on Justia Law

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Kamar, born in Lebanon in 1964, moved to Jordan as a child. The family is Catholic, but adheres to Islamic cultural practices. Kamar’s mother is a U.S. citizen. Her mother, some siblings, and cousins live in Jordan. Kamar was admitted to the U.S. as a visitor in 1999. She changed her status to an F-1 student in 2001. Kamar’s F-1 status was terminated when she left school. Kamar had three sons, then divorced in 2006. Her sons live in Canada. In 2007, Kamar married during her fourth pregnancy. In 2007, Kamar was charged as removable under 8 U.S.C. 1227(a)(1)(C)(1) because she failed to comply with the conditions of her F-1 status. Seeking withholding of removal and protection under the Convention Against Torture, Kamar alleged that if she returned to Jordan, under Islamic tradition, she would be subject to an honor killing by her youngest male relative for bringing shame to her family by getting pregnant out of wedlock. Kamar testified that if she sought help from the Jordanian government, it would place her in prison and place her son in an orphanage. An IJ denied Kamar’s application. The BIA affirmed, finding that Kamar did not establish that future persecution in Jordan was objectively reasonable, did not demonstrate a pattern persecuting persons similarly situated to her and the Jordanian government is working to protect victims. The Sixth Circuit reversed. The record “overwhelming supports” that Kamar will be persecuted if she returns; governors in Jordan routinely abuse the law and use imprisonment to protect potential honor crime victims. View "Kamar v. Sessions" on Justia Law

Posted in: Immigration Law

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Born in Pakistan, Haroon came to the U.S. on a visitor’s visa in 2002. Six months later, Haroon returned to Pakistan, married Bano, and the couple had a son. One week after the birth, they divorced. The next day, Haroon returned to the U.S. on another six-month visa. Within two months, Haroon married McVey, an American citizen. They filed a relative petition which permitted Haroon to apply for permanent residence. After a two-year probationary period, Haroon applied to have the conditions on his permanent residence removed. While that application was pending, Haroon and McVey divorced. Haroon became an American citizen. At each stage of this process, Haroon lied. The forms (G-325, I- 485, I-751, and N-400) asked whether Haroon had any children or former wives. On each form and in interviews, Haroon denied marrying Bano and denied the existence of children, even after returning to Bano in Pakistan during the probationary period and after Bano gave birth to another son nine months later. One month after becoming a citizen, Haroon returned to Pakistan, where he remarried Bano. He flew back to the U.S and filed relative petitions for Bano, two sons, and seven other family members. The government charged Haroon with “knowingly procur[ing]” his citizenship “contrary to law,” 18 U.S.C. 1425(a). The Sixth CIrcuit affirmed his conviction, sentence of two years’ probation, and revocation of his citizenship. View "United States v. Haroon" on Justia Law

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Organizations that represent migrant farm-workers claimed that the U.S. Border Patrol allows agents at its Sandusky Bay, Ohio station to target persons of Hispanic appearance for questioning. The district court found that the Plaintiffs had not proved their claim. The Sixth Circuit affirmed. The Border Patrol trains its agents to follow the official policy, to avoid racial profiling and the plaintiffs did not prove the existence of a ratification-based policy of racial targeting at Sandusky Bay. The plaintiffs’ analysis of statistical information to show that agents from Sandusky Bay were targeting persons of Hispanic appearance was unreliable. View "Muniz-Muniz v. United States Border Patrol" on Justia Law

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In 2004, Privett pleaded guilty to sexual battery. Nine years later, Privett married a foreign citizen and filed Form I-130 to establish her qualification for a visa and eventually a Green Card. USCIS sent Notice of Intent to Deny and requested additional evidence that Privett was not convicted of a “specified offense against a minor” and to “demonstrate, beyond a reasonable doubt, that [he] pose[d] no risk to the safety and wellbeing of” his wife. Under the Adam Walsh Act (AWA), 8 U.S.C. 1154(a)(1)(A)(viii)(I) the request of a citizen convicted of a specified offense against a minor may be denied. Privett provided a transcript of his plea hearing. USCIS rejected his petition. The district court dismissed Privett's claims for lack of jurisdiction to review a decision of the Secretary of Homeland Security “the authority for which is specified under this subchapter to be in the discretion of the . . . Secretary of Homeland Security,” 8 U.S.C. 1252(a)(2)(B). The Sixth Circuit reversed in part. Certain predicate legal issues that determine the bounds of a discretionary decision remain within the jurisdiction of the courts. Privett’s challenge to whether his crime is a specified offense against a minor is such a predicate legal issue. Privett’s challenge to USCIS’s beyond-a-reasonable-doubt standard is directed at the Secretary’s discretion and beyond judicial review. View "Privett v. Secretary, Department of Homeland Security" on Justia Law

Posted in: Immigration Law

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Ataya pleaded guilty to conspiring to commit health care fraud and wire fraud. In his plea agreement, he relinquished any right to appeal his conviction or sentence “on any grounds.” Atatya nonetheless appealed. The Sixth Circuit directed the parties to brief the question of whether Ataya entered into the plea agreement as a whole knowingly and voluntarily. Ataya understood and accepted the appellate waiver’s consequences, but if he misunderstood the conviction’s key consequences, that undermines the knowingness of the appellate waiver. The district court did not inform Ataya, as Rule 11 requires, that the plea agreement required him to pay restitution and a special assessment and to forfeit the proceeds of his fraud; neither the plea agreement nor the district court mentioned that Ataya, who became a naturalized citizen after the alleged frauds, might face denaturalization as a result of his conviction. Invalidation of the agreement will require him to demonstrate “a reasonable probability that, but for the error, he would not have entered the plea.” View "United States v. Ataya" on Justia Law