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

Articles Posted in Immigration Law

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According to its website, the University of Northern New Jersey, founded in 2012, was “nationally accredited by the Accrediting Commission of Career Schools and Colleges and the Commission on English Language Accreditation” and “certified by the U.S. Department of Homeland Security, Student and Exchange Visitor Program to educate international students.” The site included a statement from UNNJ's President, Dr. Brunetti, and its social media accounts informed students of closings for inclement weather and of alumni marriages. The University never existed. The Department of Homeland Security created the “sham university” to catch brokers of fraudulent student visas. It ensnared many such brokers; hundreds of foreign students “enrolled.” The government initially conceded that those students were innocent victims, but later suggested that they were akin to participants in the fraudulent scheme. Each enrolled student (including the plaintiffs) received a letter informing them that their student status had been terminated due to fraudulent enrollment. The government charged 21 individuals with fraudulently procuring visas. The plaintiffs filed a class action. The district court dismissed the claims, finding that there was no final government action. The Third Circuit vacated. Reinstatement proceedings are not required and would not afford an opportunity for review of DHS’s decision to terminate their F1 visa status. The students need not wait until removal proceedings are instituted to challenge the termination of their student status; neither immigration judges nor the BIA have authority to overturn the denial of reinstatement. View "Fang v. Director United States Immigration & Customs Enforcement" on Justia Law

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Bastardo-Vale, a citizen of Venezuela, who entered the U.S. on a student visa, sought review of the Board of Immigration Appeals decision that his Delaware conviction for second-degree unlawful imprisonment constituted a “particularly serious crime,” rendering him ineligible for asylum and withholding of removal relief, 8 U.S.C. 1158(b)(2), 1231(b)(3). His state conviction arose from a forcible sexual encounter with a fellow student; he pleaded no contest to second-degree unlawful imprisonment and was sentenced to the maximum term of one year’s imprisonment, which was suspended for eleven months of time served. The Department of Homeland Security then charged Bastardo-Vale with removability under 8 U.S.C. 1227(a)(2)(A)(i), for being convicted of a crime involving moral turpitude, and under 8 U.S.C. 1227(a)(1)(C)(i), for failing to comply with the conditions of his nonimmigrant status. Overruling its own precedent, the Third Circuit denied the petition for review. The phrase “particularly serious crime” as used in both the asylum and withholding of removal statutes includes, but is not limited to, aggravated felonies. The phrase “particularly serious crime” means the same thing in both statutes, and the language of those statutes shows that aggravated felonies are a subset of particularly serious crimes. View "Bastardo-Vale v. Attorney General United States" on Justia Law

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Hillocks, a citizen of Trinidad and Tobago and a lawful U.S. permanent resident, was convicted of using a communication facility to facilitate a felony. The Board of Immigration Appeals applied the modified categorical approach, looked to Hillocks’s plea colloquy, and found that Hillocks used a phone to facilitate the sale of heroin. The Board found that his conviction was therefore both an aggravated felony and related to a controlled substance, 8 U.S.C. 1227(a)(2) and ordered Hillocks removed. The Third Circuit vacated the removal order. The categorical approach does not call for the consideration of the facts of a particular case; the court presumes that the state conviction rested upon the least of the acts criminalized by the statute, and then determines whether that conduct would fall within the federal definition of the crime. The modified approach only applies when the statute of conviction has alternative elements, and “at least one” of the alternative divisible categories would, by its elements, be a match with a generic federal crime. Pennsylvania’s statute does not have enumerated categories that suggest alternate elements, it does not provide different punishments depending on the underlying crime; the underlying felonies serving as a basis for a conviction under the statute are means, not separate elements. View "Hillocks v. Attorney General United States" on Justia Law

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Petitioners, undocumented aliens from Guatemala, have lived and worked in New York since 2008. They were traveling in a van with eight other men when Pennsylvania State Trooper Macke stopped the van for speeding. Petitioners were asleep in the back of the van. Macke approached the driver, who did not have his license with him. The van’s owner, in the front passenger seat, gave Macke his license and registration. Petitioners allege that instead of returning to his vehicle, Macke opened the side door and said to the passengers, ‘let me see your immigration papers, work permit, visa, passport and ID.’” Petitioners did not have any such documents. The government claims the Petitioners admitted that they were citizens of another country. Macke issued the driver's citations at 8:57 a.m.and ordered them to a nearby rest stop, where Macke positioned his car so that Petitioners’ van could not move. They claim that he interrogated them about their immigration status until ICE agents arrived at approximately 9:30 a.m. The government claimed that all freely stated that they had illegally entered the U.S. In removal proceedings, 8 U.S.C. 1182(a)(6)(A)(i), Petitioners moved to suppress evidence of their alienage obtained as a result of the stop, arguing that it had been discovered through a violation of their Fourth Amendment rights. They claimed that Macke stopped them because of their Hispanic appearance. The BIA rejected the argument. The Third Circuit remanded, concluding that Petitioners alleged a potentially egregious Fourth Amendment violation that warrants an evidentiary hearing. View "Yoc-Us v. Attorney General United States" on Justia Law

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Petitioner, a citizen of Guatemala, entered the U.S. without permission in 2002. He was charged as removable in 2013 and sought cancellation of removal. Petitioner admitted to paying $8,000 to an individual to help his brother and daughters unlawfully enter the U.S. in 2015 and 2016, after he was served with a notice to appear. The IJ determined Petitioner had engaged in alien smuggling, was not a person of good moral character, 8 U.S.C. 1101(f)(3), 1182(a)(6)(E), and was ineligible for cancellation of removal. The BIA rejected Petitioner's argument that events occurring after the service of a notice to appear could not be used to evaluate his good moral character under the stop-time rule, 8 U.S.C. 1229b(d)(1). Aliens who are ordered removed may apply for cancellation of removal if they have maintained a continuous physical presence in the U.S. for at least 10 years and have been a person of good moral character for such period. Under the “stop-time rule,” the physical presence period ends when DHS serves the notice to appear so that aliens cannot continue to accrue physical presence time during the pendency of lengthy removal proceedings. The Third Circuit denied his petition for review. The stop-time rule does not truncate the good moral character window. The relevant time period for evaluating an alien’s good moral character is the 10-year period before the final administrative decision on an alien’s application for cancellation of removal. View "Mejia-Castanon v. Attorney General United States" on Justia Law

Posted in: Immigration Law

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Radiowala entered the United States on a visitor’s visa in 1998, with his wife and two children, fleeing a noted Indian gangster. Following a 2017 vehicle stop, he was charged as removable because he was present in the U.S. without having been admitted or paroled. Radiowala sought cancellation of removal (8 U.S.C. 1229b(b)(1)), asylum (8 U.S.C. 1158(b)(1)(A)), and protection under the Convention Against Torture. He testified that he started out supporting a family of four on $300 a week and eventually developed a lucrative business. He is the sole provider for his mother in India, his wife and two children who emigrated with him, and two more children, both U.S. citizens. His fourth child is in high school. The Immigration Judge denied relief. The Board of Immigration Appeals affirmed. Radiowala sought judicial review, citing his relatively non-existent criminal history and his role as the sole provider for his family. The Third Circuit denied his petition. The principal avenue for relief, cancellation of removal, is a ground on which the Board’s decision is largely unreviewable. Radiowala became ineligible for asylum more than 19 years ago and the proposed social groups of which he is a part are not legally cognizable. Substantial evidence supports the determination that he is unlikely to be tortured if returned to India. View "Radiowala v. Attorney General United States" on Justia Law

Posted in: Immigration Law

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Tilija was active in the Nepali Congress Party (NCP), the political rival of the Maoists. While campaigning for the NCP, Maoists attacked him, throwing stones at his face, resulting in stitches. Maoists told Tilija’s father that they planned to kill Tilija. Discharged from the hospital, Tilija stayed at a hotel instead of going home, then moved four hours away. Maoists called him three times, stating that they would kill him when they found him. Tilija moved to Kathmandu. Maoists called and again threatened him. Tilija stopped using his cell phone. According to Tilija, the police did not investigate crimes committed by Maoists. Tilija left Nepal. In the U.S., charged removable (8 U.S.C. 1182(a)(7)(i)(I)), Tilija sought asylum, withholding of removal, and protection under the Convention Against Torture. The IJ denied relief, finding that Tilija was credible, adequately corroborated his claim, and was targeted for his political opinion but that the harm did not rise to the level of persecution and that Tilija did not establish that the government was unable or unwilling to protect him. Before the BIA, Tilija presented new, previously unavailable, evidence that after his merits hearing his wife was assaulted and raped because of his political activities and NCP affiliation. Tilija’s wife submitted medical records and corroborating letters. The BIA upheld the denial of relief. The Third Circuit remanded, holding, as a matter of law, that the new evidence established a prima facie asylum claim. View "Tilija v. Attorney General United States" on Justia Law

Posted in: Immigration Law

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A lawful permanent resident of the U.S. and a citizen of Zimbabwe, Nkomo was convicted of conspiracy to commit wire fraud, 18 U.S.C. 1342; 1349, an “aggravated felony,” which made Nkomo removable and ineligible for most relief. About a month after she was sentenced to time served for that offense, the government initiated removal proceedings. The Board of Immigration Appeals found Nkomo ineligible for withholding because her wire fraud conviction was for a “particularly serious crime,” 8 U.S.C. 1231(b)(3)(B)(ii). Denying Convention Against Torture protection, the Board found that Nkomo had not shown a probability she would be tortured by or with the acquiescence of the government of Zimbabwe. The Third Circuit rejected her petition for review, first distinguishing the Supreme Court's 2018 "Pereira" decision and holding that the failure of the notice to appear to specify the time and place of Nkomo’s initial removal hearing did not deprive the immigration judge of jurisdiction over the removal proceedings. Nkomo appeared and participated in, her removal hearing. Nkomo’s argument would invalidate scores of removal orders and grants of relief without requiring the alien to allege she lacked sufficient notice of her hearing. The court rejected her claim for withholding of removal and noted that it lacked jurisdiction over the CAT claim. View "Nkomo v. Attorney General United States" on Justia Law

Posted in: Immigration Law

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Payano, a citizen of the Dominican Republic, came to the U.S. legally at age 12. In 1998, at age 18, he pleaded guilty to first-degree possession of a controlled substance. In 2001, after completing his sentence, he was removed. Payano illegally reentered the U.S. in 2012. During a 2017 Pennsylvania traffic stop, the trooper found a kilogram of cocaine hidden in Payano's vehicle. Payano was charged with illegal reentry and possession with intent to distribute 500 grams or more of cocaine. The district court agreed that the drugs were the fruit of an unconstitutional search. The government dismissed the drug charge. Payano pleaded guilty to illegal reentry. Because Payano’s 1998 conviction was for drug possession, not drug distribution, it was a felony under federal law, not an aggravated felony. Payano’s plea was under 8 U.S.C. 1326(b)(1), which carries a maximum sentence of 10 years. The PSR calculated the Guidelines range as 24-30 months’ imprisonment and correctly listed the statutory maximum, but cited 1326(b)(2) (illegal reentry following an aggravated felony with a 20-year maximum). The government sought an upward variance because Payano had been “convicted of an aggravated felony" and had the court “correct” the PSR to reflect that Payano had pleaded guilty to “aggravated reentry.” Payano’s counsel agreed. The court imposed a four-year sentence. The Third Circuit vacated, agreeing that there was error but declining to extend the “Molina-Martinez“ presumption of prejudice because a mistaken understanding about the applicable statutory range, without more, has far less bearing on the actual sentence than a Guidelines-calculation error. The error did affect Payano’s substantial rights and without correction would seriously affect the fairness, integrity, or public reputation of judicial proceedings. View "United States v. Payano" on Justia Law

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Nunez was indicted for passport fraud, making a false representation of U.S. citizenship, using a false social security number, and producing a state driver’s license not issued for her use. Nunez was detained under the Bail Reform Act (BRA), 18 U.S.C. 3142(d), which permits the 10-day pretrial detention of non-citizens who may pose a flight risk or danger so ICE may take them into custody. ICE lodged a detainer. Twelve days later, a different magistrate arraigned Nunez, denied the government’s motion for pretrial detention, and set conditions for her release. The district court upheld the order. ICE then executed its detainer, taking Nunez into custody for her removal proceedings. While in ICE custody, Nunez unsuccessfully moved to dismiss her indictment or obtain release, arguing that section 3142(d) gives the government “the choice of [either] taking the Defendant into [ICE] custody during the ten-day period and proceeding with removal or continuing with the criminal prosecution in which case the BRA controls.” The court held that 8 U.S.C. 1226(a)(1) allowed ICE to detain Nunez during the pendency of removal proceedings notwithstanding the criminal action; her detention did not conflict with the BRA. The Third Circuit dismissed an appeal of the ruling denying the request to dismiss the indictment, which was not a final ruling. The court affirmed the denial of Nunez’s claim that her BRA release order foreclosed her ICE detention. View "United States v. Nunez" on Justia Law