Articles Posted in Immigration Law

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Wang, a citizen of China, obtained lawful U.S. permanent resident status in 2010 and worked in a financial services firm. In 2011, without authorization, he purchased oil futures contracts using the firm’s trading account and transferred those contracts between firm accounts. In company records, Wang marked these contracts as closed (sold) when they were, in fact, still open. After the firm discovered the transactions, the FBI arrested Wang. The indictment alleged that, upon discovery of a loss of $2.2 million, the firm sold the contracts. Wang pleaded guilty to violating the Commodity Exchange Act by making a false report in connection with a commodities transaction, 7 U.S.C. 6b(a)(1)(B) and 13(a)(2) and was sentenced to three months in prison and ordered to pay $2.2 million in restitution. Wang was ordered removed. The BIA affirmed. The Sixth Circuit granted a petition for review and remanded, first holding that it had authority to consider de novo whether Wang’s conviction qualifies as an aggravated felony because it is “a purely legal question.” Wang is not properly categorized as an aggravated felon under 8 U.S.C. 1101(a)(43)(M)(i) because crimes “involv[ing] fraud or deceit” require materiality as an element of proof and Section 6b(a)(1)(B) lacks this element. View "Wang v. Attorney General United States" on Justia Law

Posted in: Immigration Law

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Ricketts petitioned the Third Circuit to review the BIA's denial of his motions to reopen his removal proceedings, arguing that he is actually a U.S. citizen. Finding that there were genuine issues of material fact as to his nationality, the court granted a joint motion and transferred the nationality dispute to the Eastern District of New York, where Ricketts resided at the relevant time (8 U.S.C. 1252(b)(5)(B)). After an evidentiary hearing, that court decided that the evidence overwhelmingly established that Ricketts is a Jamaican national who appropriated the identity of a U.S. citizen. Ricketts sought review by the Second Circuit. The district court transmitted the appeal to the Third Circuit. The government sought transfer the to the Second Circuit, requesting that the Third Circuit retain jurisdiction over Ricketts’s other consolidated petitions for review. The Third Circuit held that an appeal from a nationality determination following a transfer must be taken to the appellate court that typically hears appeals from the district court making the determination rather than to the appellate court that transferred the case to the district court in the first place. The statute indicates that Congress intended that hearings under section 1252(b)(5)(B) be treated as new proceedings separate from the underlying petitions for review. The Third Circuit held it lacked jurisdiction to entertain an appeal from a nationality determination made by the Eastern District of New York. View "Ricketts v. Attorney General United States" on Justia Law

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"Immediate relatives” of U.S. Citizens can enter the United States without regard to numerical limitations on immigration. The Adam Walsh Child Protection and Safety Act of 2006, 120 Stat. 587 (AWA) amended the statute so that a citizen “who has been convicted of a specified offense against a minor” may not file any petition on behalf of such relatives “unless the Secretary of Homeland Security, in the Secretary’s sole and unreviewable discretion, determines that the citizen poses no risk to the alien.” The definition of a “specified offense against a minor,” includes “[c]riminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct.” U.S. Citizenship and Immigration Services (USCIS) memos state that “a petitioner who has been convicted of a specified offense against a minor must submit evidence of rehabilitation and any other relevant evidence that clearly demonstrates, beyond any reasonable doubt," that he poses no risk and that “approval recommendations should be rare.” In 2004, Bakran, a U.S. citizen, was convicted of aggravated indecent assault and unlawful contact with a minor. In 2012, Bakran married an adult Indian national and sought lawful permanent resident status for her. USCIS denied his application citing AWA. Bakran claimed violations of the Constitution and Administrative Procedures Act, 5 U.S.C. 701. The Third Circuit held that the protocols Bakran challenged simply guide the Secretary’s determination; courts lack jurisdiction to review them. The AWA does not infringe Bakran’s marriage right but deprives him of an immigration benefit to which he has no constitutional right. The Act is aimed at providing prospective protection and is not impermissibly retroactive. View "Bakran v. Secretary, United States Department of Homeland Security" on Justia Law

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S.E.R.L., a native of Honduras, fled to the U.S. in 2014 and unsuccessfully sought asylum and statutory withholding of removal based on membership in a proposed particular social group “immediate family members of Honduran women unable to leave a domestic relationship.” She fears persecution by Angel, who abducted, raped, and continues to stalk S.E.R.L.’s daughter, who has already been granted asylum. Orellana, S.E.R.L.’s stepfather, has repeatedly abused S.E.R.L.’s mother. An immigration judge found S.E.R.L. credible but concluded that S.E.R.L. had not met her burden to establish eligibility for relief. The IJ reasoned that Angel had targeted S.E.R.L.’s daughter, not her and that “her stepfather never physically harmed her.” The IJ stated that any harm she suffered was not on account of a protected ground; her proposed group “lack[ed] the requisite level of particularity and social distinction” under 8 U.S.C. 1101(a)(42). The BIA dismissed an appeal. The Third Circuit denied a petition for review, citing the BIA’s three-part test for proving the existence of a cognizable particular social group, which requires applicants to establish that the group [at issue] is composed of members who share a common immutable characteristic, defined with particularity, and socially distinct within the society in question. That interpretation is entitled to Chevron deference. Substantial evidence supports the BIA’s determination that S.E.R.L. has not met its requirements. View "S.E.R.L. v. Attorney General United States" on Justia Law

Posted in: Immigration Law

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Mothers and children fled violence perpetrated by gangs in Honduras and El Salvador and were apprehended near the U.S. border. They were moved to a Pennsylvania detention center. Immigration officers determined that they were inadmissible. They were ordered expeditiously removed, 8 U.S.C. 1225(b)(1), and unsuccessfully requested asylum. They sought habeas relief, claiming that Asylum Officers and IJs violated their constitutional and statutory rights in conducting the “credible fear” interviews. The Third Circuit initially affirmed the dismissal of the claims for lack of subject matter jurisdiction. The court held that, while the Suspension Clause of the Constitution would allow an aggrieved party with sufficient ties to the U.S. to challenge that lack of jurisdiction, the petitioners’ relationship to the U.S. amounted only to presence for a few hours before their apprehension. The children were subsequently accorded Special Immigrant Juvenile (SIJ) status—a classification intended to safeguard abused, abandoned, or neglected alien children who are able to meet rigorous eligibility requirements. The Third Circuit then reversed the dismissal, noting that protections afforded to SIJ children include eligibility for application of adjustment of status to that of lawful permanent residents, exemption from various grounds of inadmissibility, and procedural protections to ensure their status is not revoked without good cause. The jurisdiction-stripping provision of the Immigration and Nationality Act is an unconstitutional suspension of the writ of habeas corpus as applied to SIJ designees seeking judicial review of expedited removal orders. View "Osorio-Martinez v. Attorney General United States" on Justia Law

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Bonilla, a citizen of El Salvador, first attempted to enter the U.S. illegally in 2010 and was removed but returned. In 2017, Bonilla was arrested and found to be the subject of a removal order. He expressed a fear of persecution or torture if returned to El Salvador. Bonilla first three meetings with an asylum officer ended because Bonilla wanted his attorney present. At the fourth meeting, with his attorney present via telephone, Bonilla stated that he had been extorted by a gang in El Salvador because they thought he received money from his family in the U.S. and had light skin color. They never physically harmed or threatened him and he did not report these incidents to the police. The asylum officer issued a negative reasonable fear determination. Bonilla then appeared before an IJ. Bonilla later declared that he did not request that his attorney be present because he believed his attorney was listening on the phone; his counsel submitted a letter notifying the IJ of counsel’s error in not appearing. The IJ upheld the determination. The Third Circuit denied a petition for review. Bonilla has not shown that the regulations explicitly invested him with a right to counsel at the IJ’s review hearing and Bonilla was not denied the opportunity to obtain the counsel of his choice; his attorney simply failed him. Bonilla has not shown that he suffered prejudice by the absence of his counsel. View "Bonilla v. Attorney General United States" on Justia Law

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Moreno, a 49-year-old citizen of Argentina, was admitted to the U.S. under a grant of humanitarian parole in 1980. In 2015, Moreno pleaded guilty to one count of possession of child pornography under Pennsylvania’s “Sexual abuse of children” statute and was sentenced to five years of probation and required to register as a sex offender. DHS initiated removal proceedings in 2016, charging Moreno as removable for having been convicted of a crime involving moral turpitude under 8 U.S.C. 1182(a)(2)(A)(i)(I). The Immigration Judge ordered him removed; the Board of Immigration Appeals rejected Moreno’s appeal. The Third Circuit denied his petition for review, rejecting Moreno’s argument that, under the categorical approach, the least culpable conduct hypothetically necessary to sustain a conviction under the statute of his conviction is not morally turpitudinous. Pennsylvania’s Pennsylvania’s community consensus, as gauged by case law and legislative enactments, condemns the least culpable conduct punishable under the statute as morally turpitudinous. View "Moreno v. Attorney General United States" on Justia Law

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Lewin, a citizen of Jamaica, was admitted to the U.S. in 1987 as a legal permanent resident. In 2000, Lewin was convicted of receiving stolen property in the third degree, N.J. Stat. 2C:20-7(a), and was sentenced to five years of probation. Seven years later, following a finding that he violated the terms of his probation, Lewin was resentenced to four years of imprisonment. Another seven years later, Lewin was charged as removable under 8 U.S.C. 1227(a)(2)(A)(ii)(iii). An Immigration Judge concluded that Lewin is removable for having been convicted of an aggravated felony under section 1101(a)(43)(G), based on his 2000 conviction for receipt of stolen property and later resentencing and that the conviction barred him from relief in the form of cancellation of removal. The Board of Immigration Appeals affirmed. The Third Circuit denied Lewin’s petition for review, applying the categorical approach element-by-element analysis to determine whether Lewin’s New Jersey receiving stolen property conviction “fit” the generic definition of receiving stolen property under section 1101(a)(43)(G). On its face, the New Jersey statute’s language, “knowing that [the property] has been stolen, or believing that it is probably stolen,” refers to a specific defendant’s knowledge or belief, and that element must be proved beyond a reasonable doubt. View "Lewin v. Attorney General United States" on Justia Law

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Mondragon-Gonzalez was admitted to the U.S. in 2008 on an immigrant visa. In 2015, he pled guilty under Pennsylvania law, which provides: A person commits an offense if he is intentionally in contact with a minor" for specified purposes. He admitted to sending a girl pictures of his penis and was sentenced to a prison term of eight to 23 months. DHS commenced deportation proceedings. An Immigration Judge found that Mondragon-Gonzalez’s conviction fell within 8 U.S.C. 1227(a)(2)(E)(i), which provides that “[a]ny alien who at any time after admission is convicted of . . . a crime of child abuse . . . is deportable.” The BIA dismissed his appeal, comparing the elements of the state conviction and its interpretation of a “crime of child abuse” in Matter of Velazquez-Herrera. The Third Circuit denied a petition for review. Given Congress’ intent to make crimes that harm children deportable offenses, the BIA’s interpretation is not “arbitrary, capricious, or manifestly contrary to the statute. The Pennsylvania law requires intentional contact with a minor for the purpose of engaging in sexual abuse of children; it meets the generic definitional requirement in section 1227(a)(2)(E)(i), that the act constitute maltreatment of a child such that there was a sufficiently high risk of harm to a child’s physical or mental well-being. View "Mondragon-Gonzalez v. Attorney General of the United States" on Justia Law

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Mondragon-Gonzalez was admitted to the U.S. in 2008 on an immigrant visa. In 2015, he pled guilty under Pennsylvania law, which provides: A person commits an offense if he is intentionally in contact with a minor" for specified purposes. He admitted to sending a girl pictures of his penis and was sentenced to a prison term of eight to 23 months. DHS commenced deportation proceedings. An Immigration Judge found that Mondragon-Gonzalez’s conviction fell within 8 U.S.C. 1227(a)(2)(E)(i), which provides that “[a]ny alien who at any time after admission is convicted of . . . a crime of child abuse . . . is deportable.” The BIA dismissed his appeal, comparing the elements of the state conviction and its interpretation of a “crime of child abuse” in Matter of Velazquez-Herrera. The Third Circuit denied a petition for review. Given Congress’ intent to make crimes that harm children deportable offenses, the BIA’s interpretation is not “arbitrary, capricious, or manifestly contrary to the statute. The Pennsylvania law requires intentional contact with a minor for the purpose of engaging in sexual abuse of children; it meets the generic definitional requirement in section 1227(a)(2)(E)(i), that the act constitute maltreatment of a child such that there was a sufficiently high risk of harm to a child’s physical or mental well-being. View "Mondragon-Gonzalez v. Attorney General of the United States" on Justia Law