Justia U.S. 6th Circuit Court of Appeals Opinion Summaries

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

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

Albaadani came to the U.S. via Saudi Arabia at age 17. In 2015, an order of removal was issued against him because his former wife ceased to sponsor his request for citizenship. Albaadani wants to return to his birthplace, but because Yemen was in a state of “war and political conflict,” no travel documents have been issued. Albaadani was detained for six months, after which he was released subject to monitoring with a GPS ankle monitor. The Immigration and Naturalization Service received a tamper alert on Albaadani’s ankle monitor. When an agent called Albaadani, Albaadani refused to go to an enforcement office and became verbally abusive toward the agent. He was sentenced to nine months of imprisonment for tampering with a GPS ankle monitor, 18 U.S.C. 1361. Albaadani argued that his sentence was based on the impermissible factors of gender and national origin. The Sixth Circuit affirmed, stating that some of the district court’s comments, taken out of context, could appear to be influenced by Albaadani’s national origin, but the court’s explicit and complete reliance on serious threats and photographs attributed to Albaadani indicate that the sentence, viewed as a whole, did not create the appearance of having been based on gender or national origin. View "United States v. Albaadani" on Justia Law

Sene, a citizen of both Mauritania and Senegal, was charged in removal proceedings, alleging that she was admitted to the U.S. in 2000, without a valid entry or travel document. She sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT), testifying that she was subjected to female genital mutilation (FGM) and that, when she was 10 years old, Mauritanian military personnel took her family to military barracks, where she was questioned, beaten, forced to work, and raped. She escaped to a refugee camp, eventually moving to Dakar, where she lived for 11 years without problems. She came to the U.S. for a job opportunity, married in 2004, and had a daughter in 2005. She feared that her husband’s family might subject her daughter to FGM. An IJ denied Sene’s applications. The BIA took notice of a State Department Country Report about a 2008 military coup in Mauritania, followed by a deterioration in the human rights situation and remanded. The IJ again denied Sene’s applications and ordered her removal to Senegal; the BIA affirmed. The Sixth Circuit denied a petition for review. Sene failed to show that it is more likely than not that she would be subject to persecution in Senegal, “where the country reports indicate that FGM is a criminal offense that is not commonly committed against adult women and the record likewise does not support her fear of any other form of harm.” View "Sene v. Sessions" on Justia Law

Sixth Circuit upholds BIA interpretation of "previously filed" application for adjustment of status.In 2001, Sofokli, a citizen of Albania, entered the U.S. under a visitor visa. Four months after it expired, his employer sought labor certification, which was granted 11 months later. His employer then sought a work visa; Sofoklis applied to adjust his status to permanent resident. USCIS granted advance parole, which permits an alien who is otherwise inadmissible to leave the U.S. and reenter. USCIS approved the work-visa petition but denied the adjustment application, citing 8 U.S.C. 1255(k)(2), which bars aliens from adjusting their status if they have accrued more than 180 days in the U.S. without “lawful status.” Sofokli departed again and was paroled into the U.S. His second adjustment application was denied. An IJ ordered removal, rejecting Sofokli’s argument that he remained in lawful status because of his employer’s pending petitions. The BIA and Sixth Circuit affirmed, upholding 8 C.F.R. 1245.2(a)(1)(ii), which provides that, for an application to be subject to the jurisdiction of the immigration courts, the arriving alien must have filed the application while in the U.S. and must have “’departed from and returned … pursuant to ... advance parole to pursue the previously filed application for adjustment of status.” The court upheld the BIA’s conclusion that Sofokli’s second application was not “previously filed,” having been filed after returning from advance parole. View "Gazeli v. Sessions" on Justia Law

In 2001, returning from visiting his ailing father, Lopez, a citizen of Guatemala, crossed the Rio Grande into Texas. The border patrol arrested Lopez. Lopez lied about his name and nationality. Thinking that Lopez was a citizen of Mexico, the border patrol let him voluntarily return to Mexico. Lopez later crossed back into the U.S. evading apprehension. DHS tried to deport Lopez in 2008. Lopez applied for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act, 8 U.S.C. 1229b(e)(3). The IJ ruled that Lopez failed “to prove that he has not been apprehended at the time of entry after” 1990 or to establish that his removal would result in exceptional and extremely unusual hardship to his qualifying relatives, including Lopez’s American daughter. The BIA affirmed, without making any finding concerning whether Lopez was under surveillance when he entered. The Sixth Circuit vacated, in part, noting that the Act's “special rule cancellation” of removal provisions favor an individual if he sneaks across the border without detection or restraint. The burden is on the applicant to make this showing. The court reasoned that an applicant cannot be expected to show that government agents were not tracking his movement as he entered. Once the applicant has established that no one physically stopped him at the border, the government may use surveillance evidence as an affirmative defense. View "Lopez v. Sessions" on Justia Law

Lovano, a citizen of Canada, was admitted to the U.S. as a lawful permanent resident in 1973. In 1993 Lovano was convicted in Ohio for attempting to pass bad checks and theft. Although deportation proceedings were instituted, Lovano was granted a waiver under (now repealed) 8 U.S.C. 1182(c). Lovano was subsequently convicted in 2012 in Cleveland of aggravated assault. Removal proceedings were again instituted under 8 U.S.C. 1227(a)(2)(A)(ii), which authorizes the deportation of “[a]ny alien . . . convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct.” The Board of Immigration Appeals (BIA) affirmed a removal order. The Sixth Circuit denied a petition for review, rejecting an argument that the 2012 conviction for aggravated assault in Ohio was not a crime involving moral turpitude. View "Lovano v. Lynch" on Justia Law

Turfah, a citizen of Lebanon, entered the U.S. in September 1995, when he was 19 years old, on a visa that allowed him to enter as an unmarried child under the age of 21 who was “accompanying or following to join” his father, the principal visa holder. Despite arriving on his own, rather than accompanying or following his father, the immigration authorities mistakenly admitted Turfah. Turfah’s father arrived in the United States less than a month later, and ultimately became a naturalized citizen. When Turfah applied for naturalization in 2012, USCIS denied his application, finding that Turfah was “not lawfully admitted” and lack of good moral character based on Turfah’s failure to accurately report and pay federal income taxes in 2010. USCIS later dismissed the moral character ground for denial. The Sixth Circuit affirmed summary judgment, finding Turfah ineligible for naturalization because “the word ‘accompanying’ means what it says in plain English.” A court cannot invoke its equitable powers to circumvent the requirements of the immigration laws. View "Turfah v. United States Citizenship & Immigration Services" on Justia Law

Marikasi, a citizen of Zimbabwe, legally entered the U.S. in 2002 on a non-immigrant visitor’s visa with an expiration date of July 18, 2002. On November 25, 2002, Marikasi sought asylum and withholding of removal. She referred to an abusive husband and did not check the box provided for “political opinion” as a reason for seeking asylum, but instead checked “nationality” and “membership in a particular group.” The only organization she mentioned was the Musasa Project for battered women. A 2005 amended application stated that her husband was a government agent and that she had been abused by members of the leading (ZANU PF) party “because I belonged to the Movement for Democratic Change (MDC) [the opposition]. My brother was brutalized and killed in 2002 by ZANU PF members because of my political activities.” The BIA affirmed denial of her petition and ordered removal. The Sixth Circuit affirmed. Important factual inconsistencies between Marikasi’s asylum application and her testimony supported an adverse credibility determination. Marikasi did not present sufficient corroborative evidence to rehabilitate her discredited testimony or independently satisfy her burden of proof. Marikasi failed to prove that she could not leave the relationship or that she could not relocate to another part of Zimbabwe. View "Marikasi v. Lynch" on Justia Law

Sakhawati, a citizen of Bangladesh, was apparently admitted to the U.S. in 1998, using a passport issued to Nessa. She travelled to Canada and was denied refugee status there in 2003. She was granted asylum and withholding of removal in the U.S. under the name Sakhawati in 2006 after testifying to being kidnapped, forced to marry, and targeted for promoting feminist political views inside Bangladesh. In 2007, DHS appealed and moved to reopen, based on new information showing that that Sakhawati had actually been residing in Canada during the time that she was allegedly being held captive in Bangladesh. On remand, the IJ denied Sakhawati relief, and ordered her removed to Bangladesh. The Sixth Circuit vacated and remanded; a DHS official exercising due diligence could have readily discovered the existence of the Nessa alien file and presented it at Sakhawati’s original hearing. Sakhawati then sought Attorney Fees under the Equal Access to Justice Act, 28 U.S.C. 2412(d). Sakhawati’s counsel, billing at an hourly rate of $190.28, sought $21,248.37 in attorney fees, legal-assistance fees, and expenses for 104.85 hours claimed to have been spent on the matter prior to the Application for Attorney Fees, plus an additional $1,908.20 for 10.00 hours spent preparing the Application and responding to the opposition. The Sixth Circuit awarded a total of $15,653.76 in attorney fees, legal-assistance fees, and expenses. View "Sakhawati v.Lynch" on Justia Law