Justia U.S. 3rd Circuit Court of Appeals Opinion Summaries

In each of these consolidated petitions for review, an alien’s initial counsel withdrew, and the alien represented himself at the merits hearing on his requests for relief from removal. After denying those requests and ordering the aliens removed, the Immigration Judge informed each alien that he had a right to administratively appeal the removal order to the Board of Immigration Appeals and that the right could be waived. Each alien waived that right, preferring to be deported rather than remain in custody. Days afterward, each alien filed a pro se notice of appeal. Later, in briefs filed by pro bono counsel, each alien disputed a removal. The BIA dismissed each administrative appeal, finding that the waiver of an administrative appeal was valid. Each alien then filed an unsuccessful motion for reconsideration with the BIA.The Third Circuit denied petitions for review. The administrative record does not compel the conclusion that the waivers were invalid, and the BIA did not abuse its discretion in denying the alien’s motion to reconsider. Each IJ explained the right to appeal and the meaning of the waiver; the waivers were not involuntary. View "Alexander-Mendoza v. Attorney General United States" on Justia Law

Gonzalez-Aquino, a citizen of the Dominican Republic and a lawful U.S. permanent resident, has been convicted of burglary, escape, theft, trespass, and more. His most recent convictions, theft and conspiracy to commit theft, were aggravated felonies. Gonzalez-Aquino sought to defer his removal under the Convention Against Torture, claiming that if he returned to the Dominican Republic, he would face threats. As a teenager, he got into a gambling dispute with a man who belonged to a well-known criminal gang. The man threatened to kill him, so he moved to the U.S.. In the U.S., Gonzalez-Aquino was arrested for murdering another Dominican. The charges were dropped, but the victim’s family threatened to kill him if he returned to the Dominican Republic.The IJ rejected his arguments, finding that he had not shown that he would likely be tortured or that the Dominican government would acquiesce to any torture. The proceedings were not ideal: the judge used legal jargon without explanations, said little about what evidence was needed, and asked few questions. The videoconference was malfunctioning; the judge could see Gonzalez-Aquino but he could not see her. The BIA dismissed an appeal. The Third Circuit denied a petition for review. Because he is removable for committing an aggravated felony, the court lacked jurisdiction to review the Board’s factual or discretionary decisions, 8 U.S.C. 1252(a)(2)(C). Gonzalez-Aquino did not allege violation of any fundamental rights and was not prejudiced by procedural errors. View "Gonzalez Aquino v. Attorney General United States" on Justia Law

Baghdad, a Moroccan citizen, has lived in the U.S. as a lawful permanent resident for two decades. In 2018, he and two accomplices ran out of a Pennsylvania store with three drills (worth about $1000) and sold them at a pawn shop. He pleaded guilty to retail theft and faced nearly two years’ incarceration. The government argued that his conviction was for an aggravated felony, making him removable under 8 U.S.C. 1227(a)(2)(A)(iii). The term “aggravated felony” includes theft convictions that result in prison sentences of at least one year. An immigration judge and the Board of Immigration Appeals agreed that the retail theft conviction constituted an aggravated felonyThe Third Circuit denied Baghdad’s petition for review, applying the categorical approach. Baghdad was convicted of a crime that shares all three elements with generic theft and his sentence was for more than one year. While Pennsylvania juries may infer that a defendant who concealed merchandise intended to steal it, that inference is permissive, not mandatory. It depends on facts from which the jury could infer intent to steal beyond a reasonable doubt and it does not shift the burden of proof. Baghdad’s conviction makes him removable. View "Baghdad v. Attorney General United States" on Justia Law

De Castro, a citizen of the Dominican Republic came to the U.S. around 2002-2003. In 2012, he married a U.S. citizen. In 2014, his spouse’s Petition for Alien Relative was approved. The State Department notified De Castro that his immigrant visa petition was eligible for further processing. Months later, he was arrested as an alien in possession of a weapon, 18 U.S.C. 922(g)(5)(A). De Castro eventually pleaded guilty and was allowed to depart voluntarily in 2017. Thirteen months after the Supreme Court’s 2019 “Rehaif” decision, De Castro sought a writ of error coram nobis challenging his conviction. In Rehaif, the Supreme Court held that section 922(g)'s “knowingly” provision applies to both the possession and immigration status elements. De Castro argued that the government never proved he knew he was illegally or unlawfully in the United States; the court never informed him at his plea colloquy that the government was required to prove that element.The Third Circuit affirmed the denial of the petition, finding that De Castro did not have a sound reason for his delay in seeking relief; his knowledge-of-immigration-status argument was not futile in 2017 when he entered his plea agreement; and De Castro cannot establish actual innocence under the Rehaif standard because he cannot demonstrate it is more likely than not that no reasonable juror would conclude that he knew of his status as an illegal alien at the time he possessed a firearm. View "United States v. De Castro" on Justia Law

Freza, a citizen of the Dominican Republic, became a lawful permanent U.S. resident in 2004. In 2012, he was convicted of robbery, aggravated assault with a firearm, burglary, and possession of a weapon for an unlawful purpose. While Freza was serving his ten-year sentence, removal proceedings were initiated against him under 8 U.S.C. 1227(a)(2)(A)(iii). Freza told the IJ that he had attempted to contact pro bono legal organizations, but none could take his case; he had no resources. At Freza’s second master calendar hearing in February 2020, the IJ proceeded with Freza pro se. On March 18, Freza applied for asylum, withholding of removal, and relief under the Convention Against Torture. Due to staffing shortages during the pandemic, Freza’s third hearing occurred in October 2020, with Freza appearing pro se via video. The merits hearing was set for December and later rescheduled for January 2021. A pro bono attorney first spoke to Freza the day before the hearing.The IJ denied her motion to continue the hearing for 30 days, stating that Freza had been aware of his merits hearing “for quite some time.” The merits hearing continued with Freza proceeding pro se and testifying about his experiences of and fears of future violence. The BIA affirmed the removal order. The Third Circuit vacated. The IJ’s denial of a continuance for Freza’s counsel to prepare to adequately represent him violated Freza’s right to counsel. View "Freza v. Attorney General United States" on Justia Law

Lopez, a citizen of El Salvador, entered the United States without authorization in 2001. In removal proceedings in 2009, he applied for relief under the Nicaraguan Adjustment and Central American Relief Act (NACARA). While removal proceedings continued, Lopez was charged with possession of marijuana. Following a guilty plea in 2015, DHS added a charge of removability under 8 U.S.C. 1182(a)(2)(A)(i)(II), applicable to aliens who committed a controlled substance offense. That triggered a limiting provision in NACARA (Section 203(b)) that bumps the requirement of continuous presence in the United States from seven to 10 years and restarts the clock from the commission of the controlled substance offense. Lopez cited section 212(h), which gives the Attorney General discretion to grant a waiver of inadmissibility for applicants who meet the eligibility requirements, to excuse that added charge. The Board of Immigration Appeals denied Lopez relief, holding that a 212(h) waiver may not be used with an application for NACARA cancellation of removal.The Third Circuit denied a petition for review. An application for NACARA cancellation of removal is not an application for adjustment of status; the enactment of NACARA did not expand section 212(h). View "Lopez v. Attorney General United States" on Justia Law

Shkembi, a citizen of Albania, attempted to enter this country by representing that he was a national of a country that is a participant in the Visa Waiver Program (VWP), 8 U.S.C. 1187, although Albania is not a VWP participant. His ruse was detected at the airport where he was deemed inadmissible. The VWP precludes contesting removability except by seeking asylum. After denial of his application seeking asylum, withholding of removal, and relief under the Convention Against Torture, Shkembi succeeded in reopening his asylum proceeding. Despite the VWP’s limitation to asylum-only proceedings, Shkembi applied for a marriage-based adjustment of status (AOS) and withdrew his asylum application before the IJ. His file was returned to the Department of Homeland Security, but his AOS application was not adjudicated. After being taken into custody, he filed an unsuccessful emergency motion to reopen his asylum proceedings.The Third Circuit denied a petition for review. The terms of the VWP apply to an alien who is from a non-VWP-participant country, who attempts to enter the U.S. by using the passport of a national of a VWP-participant country. Such an alien, despite his ineligibility for the VWP, is subject to the terms of the VWP. Shkembi has never had a right to seek AOS. The court also rejected an argument that the denial of his emergency motion to reopen deprived him of due process. View "Shkembi v. Attorney General United States" on Justia Law

The Third Circuit denied Petitioner's petition for review challenging his expedited removal by the Department of Homeland Security (DHS) based on Petitioner's Pennsylvania conviction for receiving stolen property, holding that Petitioner's state conviction was an aggravated felony under the Immigration and Nationality Act (INA), 8 U.S.C. 1101(a)(43)(G).In 2020, DHS initiated expedited removal proceedings against Petitioner, a native and citizen of Mexico, alleging that Petitioner was charged with being deportable under the INA as an alien "convicted of an aggravated felony" because he had been convicted of receiving stolen property. Petitioner requested withholding of removal, arguing that his Pennylvania receiving stolen property conviction was not an aggravated felony under the INA. DHS disagreed, and the immigration judge (IJ) upheld the determination. The Third Circuit denied Petitioner's petition for review, holding that the Pennsylvania offense was sufficient to constitute an aggravated felony under 8 U.S.C. 1101(a)(43)(G). View "Jacome v. Attorney General United States" on Justia Law

Nunez, a 52-year-old citizen of the Dominican Republic has been a lawful permanent resident of the U.S. since 2010. In 2019, he pled guilty to endangering the welfare of a child in the third degree. Charged with removability under 8 U.S.C. 1227(a)(2)(E)(i), as having been convicted of "a crime of child abuse," Nunez moved to terminate removal, arguing that the state offense did not constitute a crime of child abuse. The IJ held that a violation of N.J. Stat. 2C:24-4(a)(1) is categorically a crime of child abuse because, under New Jersey state law, a conviction requires proof that the “defendant knowingly engaged in sexual conduct with the victim, which would impair or debauch the morals of a child.” Nunez then sought cancellation of removal, 8 U.S.C. 1229b(a), testifying that his conduct was “sending a video” while “drunk” and that it occurred in October 2018.The IJ concluded that Nunez’s testimony contradicted his prior admissions and that Nunez’s conviction was for a continuing offense that began on January 1, 2013; the “stop-time rule” was triggered on that date, before he accrued seven years of continuous residence. The BIA affirmed. The Third Circuit denied a petition for review. There was substantial evidence that Nunez committed the crime within seven years of being admitted to the U.S. View "DeJesus Nunez v. Attorney General United States" on Justia Law

Argueta-Orellana, a citizen of El Salvador, entered the U.S. illegally and was charged with unlawful presence. Assisted by counsel, he sought asylum, withholding of removal, and relief under the Convention Against Torture. An IJ ordered him removed. Still represented by counsel, Argueta-Orellana appealed. The Board of Immigration Appeal’s standard Notice of Appeal asks whether the appellant intends to file an optional written brief or statement, advising: WARNING: If you mark “Yes” . . . , you will be expected to file a written brief or statement after you receive a briefing schedule from the Board. The Board may summarily dismiss your appeal if you do not file a brief or statement within the time set in the briefing schedule. Argueta-Orellana’s counsel marked “Yes.” The Board issued a briefing schedule that repeated the warning. The Board later sent Argueta-Orellana a signed copy of the judge’s decision, along with a reminder of the briefing schedule containing the identical caution. Argueta-Orellana filed nothing.Exercising its discretion, the Board dismissed his appeal. The Third Circuit denied a petition for review. The Board’s decision was neither arbitrary nor irrational and a court cannot consider new arguments raised for the first time on appeal. View "Argueta-Orellana v. Attorney General United States" on Justia Law