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

Articles Posted in Immigration Law
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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

Posted in: Immigration Law
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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

Posted in: Immigration Law
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Ford, a Haitian national, became involved in Haitian national politics by joining PPD in 2012; he believed the ruling political party, PHTK, was corrupt and involved in human rights abuses. Ford received anonymous threatening telephone calls; in 2014, armed men encircled Ford’s home, shot into it, and burned it down. Ford reported the attack to Haitian authorities and fled Haiti. The United States began removal proceedings.Ford hired an attorney, who submitted a Form I-589 application for asylum, withholding of removal, and relief under the Convention Against Torture. Ford and the attorney subsequently had little contact. Ford stated the attorney “never prepared me for my final hearing.” The attorney provided scant documentary evidence to support Ford’s application and did not submit any documents about the PPD. The IJ denied relief, finding that Ford was credible but had “submitted no objective evidence” to help meet his burden in proving that he was harassed or persecuted on account of his political opinion or that Ford’s fear of persecution upon his return to Haiti was reasonable. Ford retained new counsel. The BIA affirmed and denied a motion to reopen Ford’s case based on ineffective assistance.The Third Circuit vacated. Ford presents a meritorious ineffective-assistance claim; his lawyer failed to present important and easily available evidence going to the heart of Ford’s claims. View "Saint Ford v. Attorney General United States" on Justia Law

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Garmendia testified that he first entered the U.S. in 2017 although there was evidence that he had previously been returned to El Salvador. In 2019, he was arrested as an active MS-13 gang member. After the IJ granted a continuance to secure counsel, Garmendia stated that he wanted to proceed without counsel, had “no” mental health issues, and understood the procedural rights explained by the IJ. Later, represented by counsel, Garmendia sought asylum and withholding of removal, citing his membership in a particular social group, political opinion, and the Convention Against Torture. Before his hearing, Garmendia’s counsel withdrew; he confirmed that he wanted to proceed. When questioned about inconsistencies with his application, Garmendia stated that he had “issues remembering things.” Garmendia did not press the political opinion or torture grounds. The IJ ordered him removed, finding Garmendia’s application untimely under the one-year requirement; that Garmendia’s testimony was internally inconsistent and implausible as "inconsistent with the operations of MS-13”; that no social group had been identified; that there was no past persecution and no well-founded fear of future persecution. The BIA affirmed. Garmendia did not contest that he had suffered no past persecution.The Third Circuit denied a petition for review. The IJ did not violate Garmendia’s due process rights by failing to develop the record or provide a fundamentally fair hearing. Substantial evidence supports the decision on the merits. View "Hernandez Garmendia v. Attorney General United States" on Justia Law

Posted in: Immigration Law
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Iredia was admitted to the U.S. in 1997 on a tourist visa, which he overstayed. Later, he was granted advance parole, left the U.S., returned in 2006, and was paroled into the country. The parole was valid until 2007. Iredia overstayed the parole and, in 2011, was charged as inadmissible, 8 U.S.C. 1182(a)(7)(A)(i)(I)). An IJ held ordered him removed. Iredia argued that he should have been charged as removable, not inadmissible. He claimed that when he was served with the Notice to Appear, he already had been admitted on a tourist visa, and the visa’s expiration did not affect the fact of his admission. Iredia argued that advance parole did not change his immigration status.The BIA dismissed his appeal. The Third Circuit denied a petition for review. Because Iredia was paroled into the U.S. in 2006, he is considered an arriving alien regardless of his previous admission. The statute permits parole for “any alien applying for admission” and no other category of alien; when parole ends, the alien’s case is “dealt with in the same manner as that of any other applicant for admission.” The term “arriving alien: encompasses not only aliens who are actually at the border, but also aliens who are paroled after their arrival. View "Iredia v. Attorney General United States" on Justia Law

Posted in: Immigration Law
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Jaffal, born in Jordan, sought a declaration that he is entitled to derivative U.S. citizenship under former 8 U.S.C. 1432(a), which provides that “a child born outside the United States automatically acquires United States citizenship if, while the child is under the age of eighteen, the parent with legal custody of the child is naturalized while that child’s parents are legally separated.” Jaffal’s father was naturalized when Jaffal was 17 years old. Jaffal presented evidence that he was in the sole legal custody of his father when his father was naturalized and his parents were separated. The district court declined to accept Jaffal’s evidence of his parents’ divorce because there was no evidence that Jaffal’s mother participated in the Jordanian divorce.The Third Circuit reversed and remanded with instructions to issue a judgment declaring Jaffal to be a national of the United States. If a §section1432(a) petitioner establishes that a valid, legal separation was effectuated under the relevant state or foreign nation’s law, he has met the burden of establishing a legal separation. Jordanian courts had the authority to alter Jaffal’s parents’ marriage. The Jordanian divorce established Jaffal’s parents’ legal separation as a matter of law. View "Jaffal v. Director Newark New Jersey Field Office Immigration & Customs Enforcement" on Justia Law

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Nsimba was born in the Congo in 1992. His wife and his children still live there. In 2011, Nsimba joined the largest political party, UDPS, which opposed the policies of then-President Kabila. When it became apparent that the head of UDPS, Tshisekedi, and Kabila were conspiring to ensure that Tshisekedi would succeed Kabila in the 2018 elections, Nsimba left UDPS. He and Fabrice co-founded Liberté Congolaise to oppose Kabila. Nsimba also actively participated in political demonstrations opposing Kabila and Tshisekedi. Tshisekedi became president. In 2019, Nsimba was targeted for his protest activities. Fabrice disappeared after being arrested. Days later, police forcibly entered Nsimba’s home and informed Nsimba’s family that they intended to arrest him. Nsimba escaped and hid in his aunt’s home, 385 miles away. The National Criminal Police issued ordered him to appear on a certain date. Nsimba fled to the United States, by exploiting personal contacts and bribes.The Third Circuit vacated the BIA ruling upholding the denial of Nsimba’s petition for asylum, 8 U.S.C. 1101(a)(42)(A), 1158(b)(1)(B). The Congo has a history and practice, of persecuting political objectors; Nsimba faced an individualized risk of persecution. Nsimba credibly testified that when fleeing the country, a government official told him never to return. “There is simply no way that the fair and objective reading of this record that the law requires can support a conclusion that Nsimba has not established that his fear of returning ... was objectively reasonable.” View "Nsimba v. Attorney General United States" on Justia Law

Posted in: Immigration Law
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Yasin, a citizen of Pakistan, last entered the United States more than 20 years ago. In 2002, he became subject to a final BIA removal order but continued residing in the U.S. In 2017, he and his U.S.-citizen wife had a U.S.-citizen daughter. Yasin’s daughter requires regular medical treatment to address gross developmental delays. Seven months after his daughter’s birth, Yasin filed an I-360, Petition for Amerasian, Widow(er), or Special Immigrant, requesting classification “as the abused spouse of a United States citizen” under the Violence Against Women Act (VAWA). His I-360 self-petition was approved over two years later.Yasin then moved to reopen sua sponte his removal proceedings on the ground that reopening was warranted to address his classification as an abused spouse under VAWA. The BIA denied his motion, refusing to grant Yasin a waiver of the one-year limitations period, 8 U.S.C. 1229a(c)(7)(C)(iv)(III), applicable to VAWA-based motions to reopen. The Third Circuit denied a petition for review. Because the BIA’s decision whether to waive the limitations period is an exercise of discretion committed by statute to the Attorney General, the court applied 8 U.S.C. 1252(a)(2)(B)(ii)’s jurisdiction-stripping provision and held that it lacked jurisdiction to review Yasin’s motion. View "Yasin v. Attorney General United States" on Justia Law

Posted in: Immigration Law
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Chavez-Chilel entered the U.S. without admission. DHS issued her a Notice to Appear (NTA), “on a date to be set at a time to be set,” charging her with removability, 8 U.S.C. 1182(a)(6)(A)(i). A subsequently-served notice specified the date and time. Chavez-Chilel sought asylum, withholding of removal, and protection under the Convention Against Torture, asserting that she would be subject to persecution because she is a member of a particular social group (PSG): “Guatemalan women.” The IJ denied Chavez-Chilel's motion to terminate her removal proceedings, reasoning that she suffered no prejudice from any deficiency in the NTA; "Pereira" concerned only cancellation of removal and its stop-time rule, not asylum or withholding of removal. A deficient NTA does not divest the IJ of jurisdiction. Chavez-Chilel testified that she was raped as a teenager in Guatemala, the police did not take any action when she reported this crime, and the same man later threatened to rape her again. The IJ denied Chavez-Chilel’s applications, finding that, while she was credible and that her rape qualified as past persecution, “Guatemalan women,” did not constitute a PSG for asylum or withholding of removal purposes. The BIA affirmed.The Third Circuit denied a petition for review. Failure to include the date and time of her hearing in the NTA did not require termination of the immigration proceedings. Substantial evidence supported the BIA’s conclusion that “Guatemalan women” is not a PSG for asylum or withholding purposes. View "Chavez-Chilel v. Attorney General United States" on Justia Law

Posted in: Immigration Law
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Argueta, a 20-year-old citizen of Honduras, entered the U.S. in 1998. In 2007, Argueta had an altercation with a former employer over the late payment of wages. Convicted of aggravated assault, he was sentenced to 96 months’ imprisonment. In removal proceedings, he sought asylum, withholding of removal, and protection under the Convention Against Torture. Argueta has been in ICE custody since December 2014 and has been transferred at least 15 times. His removal proceedings remain pending, Argueta unsuccessfully requested bond.In 2019, Argueta sought habeas corpus relief, 28 U.S.C. 2241. The district court denied Argueta’s petition without prejudice, reasoning that the statutory scheme under which Argueta was detained rendered him ineligible for immediate release. In April 2020, Argueta, who by then had been transferred to a detention facility outside of New Jersey, moved to reopen. The district court denied Argueta’s motion, finding that the motion raised new claims and constituted a new habeas petition over which it lacked jurisdiction because of ICE’s transfer of Argueta.The Third Circuit reversed. In referring to Covid-19 and to a change in the governing statutory scheme, Argueta did not raise new claims; his motion is a Rule 60(b)(6) motion. After a district court acquires jurisdiction over an ICE detainee’s section 2241 petition for relief from continued detention, the transfer of the detainee outside of the court’s territorial jurisdiction does not strip that court of jurisdiction to entertain a Rule 60(b) motion. View "Anariba v. Director Hudson County Correctional Center" on Justia Law