Articles Posted in Immigration Law

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Azcona-Polanco, a citizen of the Dominican Republic, was admitted to the U.S. as a lawful permanent resident in 1972. In 1994, he was ordered removed based upon a conviction for heroin distribution but never left the country. In 1997, Azcona-Polanco was convicted of conspiracy to violate federal narcotics laws and sentenced to 168 months’ incarceration. He was deported in 2009, after his incarceration, but re-entered illegally and assumed an alias, having purchased a citizen’s birth certificate and Social Security card. Azcona-Polanco was arrested and pled guilty to illegal reentry, 8 U.S.C. 1326(a); (b)(2). His sentencing range was 41-51 months. The Guideline range for a term of supervised release was one to three years, with a maximum of three years, 18 U.S.C. 3583(b)(2). Azcona-Polanco was presumptively exempt from supervised release as a deportable immigrant, U.S.S.G. 5D1.1(c). The Presentence Investigation Report and sentencing memorandum noted that presumption. The court sentenced Azcona-Polanco to 41 months’ imprisonment and three years’ supervised release, stating, “in case he does illegally reenter the United States he must report in person to Probation.” Azcona-Polanco did not object to the imposition of supervised release. The Third Circuit affirmed. A district court is permitted to impose a term of supervised release on a deportable immigrant “if the court determines it would provide an added measure of deterrence and protection based on the facts and circumstances of a particular case.” View "United States v. Azcona-Polanco" on Justia Law

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Members of the notorious Salvadoran gang, MS13, shot Serrano-Alberto's brother, leaving him paralyzed; extorted Serrano-Alberto , an acclaimed professional soccer player; and, when he ceased to pay, shot Serrano-Alberto, his nephew, and a neighbor, killing the neighbor and leaving the others in serious condition. Police refused to take a report because Serrano-Alberto did not know the names of the shooters. Fearing reprisal, Serrano-Alberto twice attempted to flee but was returned by Mexican authorities. In 2009-2012, Serrano-Alberto was imprisoned in El Salvador on extortion charges; he was ultimately absolved. Gang members continued to search for him. They shot another his brothers for refusing to divulge Serrano-Alberto’s whereabouts. In 2012, Serrano-Alberto escaped harm in a drive-by shooting by diving under a car. Serrano-Alberto moved multiple times. His mother warned that gang members were continuing to pursue him. In 2014, Serrano-Alberto observed apparent gang members in his new neighborhood and fled to the U.S.He was apprehended and applied for asylum, withholding of removal, and protection under the Convention Against Torture. At his hearing, the IJ was “confrontational, dismissive, and hostile, interrupting and belittling Serrano-Alberto’s testimony, time and again cutting off his answers to questions, and nitpicking immaterial inconsistencies.” She ordered removal. The BIA denied relief. The Third Circuit vacated and urged reassignment on remand. The Fifth Amendment protects the liberty of all persons within U.S. borders, including aliens in immigration proceedings who are entitled to a meaningful opportunity to be heard. View "Serrano-Alberto v. Attorney General United States" on Justia Law

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Conviction for failing to report murder does not preclude eligibility for withholding of removal. Flores, a Guatemalan native, entered the U.S. illegally. In 2007, she began and ended a relationship Sibrian. Flores returned to South Carolina with a new boyfriend, Perez, in 2008; Sibrian killed Perez. Flores claims she did not report the murder because Sibrian threatened to kill her and her three-year-old daughter. Flores eventually pleaded guilty to accessory after the fact for failing to report the murder. There was no evidence that Flores covered up the homicide, lied to law enforcement, or assisted Sibrian. After serving her prison term, Flores was removed. She re-entered illegally, was arrested for prostitution, and was detained. She stated that she feared returning to Guatemala because: her father wanted to kill her; she had been raped by local gang member following her previous removal; and she feared persecution as a lesbian. The asylum officer determined that Flores had a reasonable fear of persecution. An IJ found that Flores’s accessory conviction rendered her ineligible for withholding of removal and that Flores failed to adequately establish that she would be subjected to torture in Guatemala, as required by the Convention Against Torture. The BIA affirmed. The Third Circuit remanded. Flores’s accessory-after-the-fact conviction is not an offense “relating to obstruction of justice,” nor is it an “aggravated felony” or a “particularly serious crime” under the statute; Flores is eligible for withholding of removal. View "Flores v. Attorney General United States" on Justia Law

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Aliens subject to reinstated removal orders are ineligible to apply for asylum. Cazun was detained at the border and expressed fear of returning to Guatemala. An asylum officer made a negative credible fear determination. An IJ affirmed. An expedited order of removal was issued. Upon Cazun’s return to Guatemala, a drug trafficking gang threatened, tortured, and sexually assaulted her. Cazun fled with her two-year-old son. On her attempted re-entry, Cazun was detained. DHS reinstated her previously-entered removal order rather than initiating a new removal process. An IJ again affirmed a negative credible fear determination. Cazun consulted counsel and, claiming psychological trauma, obtained a new interview, Cazun described sexual assault, torture, and threats against her life and her son's life. The officer concluded that Cazun’s testimony was credible and established a reasonable fear of persecution. An IJ granted Cazun withholding of removal and protection under the Convention Against Torture, but would not consider Cazun’s asylum request. The BIA agreed that she was ineligible under 8 U.S.C. 1231(a)(5), which states that aliens who are subject to a reinstated removal order are “may not apply for any relief under [8 U.S.C. Ch. 12].” The Third Circuit upheld the decision, deferring to the BIA’s “reasonable” interpretation of a statute in which Congress did not speak clearly. View "Cazun v. Attorney General, United States" on Justia Law

Posted in: Immigration Law

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The Third Circuit remanded a determination that Dutton-Myrie, a citizen of Panama, was ineligible for deferral of removal under the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Board of Immigration Appeals must determine, de novo, whether factual findings that the Panamanian government actively engages against criminal gangs and that Dutton-Myrie did not provide the police notice that the gang attacked him in the past, were sufficient to establish acquiescence. Dutton-Myrie arrived in the U.S. on a visitor’s visa in 1991 and later pled guilty to cocaine-related charges. He escaped during an initial attempt to deport him, but was apprehended in 2005 and deported to Panama. A few days after he returned, a group of men stabbed him in the neck. He fled the country and re-entered the U.S. The government apprehended Dutton-Myrie a second time in 2007; he claimed that the government of Panama was unwilling or unable to protect him from gang attacks. View "Dutton-Myrie v. Attorney General United States" on Justia Law

Posted in: Immigration Law

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Chavez-Alvarez, a citizen of Mexico, became a lawful permanent resident in 1989, then served in the U.S. Army. In 2000, Chavez-Alvarez penetrated the vagina of an intoxicated platoon member with his fingers and performed oral sex without consent. He initially denied the allegations, but later admitted the assault and was convicted under the Code of Military Justice: 10 U.S.C. 907, 925, and 934 for making false official statements; sodomy; and adultery and indecent assault. He was discharged and confined for 18 months. Chavez-Alvarez was charged as removable under 8 U.S.C. 1227, having been convicted of an aggravated felony with a term of imprisonment of at least one year and of two or more crimes involving moral turpitude not arising out of a single scheme. An IJ determined he was ineligible for a waiver of inadmissibility. Following a remand, the BIA concluded that Chavez-Alvarez was removable under the moral-turpitude provision, rejecting his argument that he was only convicted of sodomy, a constitutionally protected activity under Supreme Court precedent. The BIA disagreed, reasoning that Chavez-Alvarez’s crime was subject to a sentence enhancement, having been committed forcibly, which was the “functional equivalent” of a conviction for forcible sodomy, a crime involving moral turpitude, and that his two false-statements convictions were separate crimes of moral turpitude. The Third Circuit reversed, rejecting the BIA’s reasoning that “for immigration purposes a sentence enhancement can serve as the functional equivalent of an ‘element’ of an offense.” View "Chavez-Alvarez v. Attorney General , United States" on Justia Law

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Plaintiffs, immigrants, ages 18 to 21, fled war, violence, and persecution in their native countries to come to the U.S., arriving here since 2014. International refugee agencies resettled them in Lancaster, Pennsylvania. None are native English speakers. All fall within a subgroup of English language learners: “students with limited or interrupted formal education.” The School District administers numerous schools, including McCaskey High School, a traditional school that includes an International School program for English Language Learners, and Phoenix Academy, operated by Camelot Schools, a private, for-profit company under contract with the District. Phoenix is an accelerated program. Plaintiffs obtained a preliminary injunction, compelling the District to allow them to attend McCaskey rather than Phoenix, to which they had been assigned. The Third Circuit affirmed, finding likely violations of the Equal Educational Opportunities Act of 1974 (EEOA), 20 U.S.C. 1703(f), which prohibits denial of equal educational opportunity on account of race, color, sex, or national origin. Plaintiffs showed a reasonable probability that Phoenix’s accelerated, non-sheltered program is not informed by an educational theory recognized as sound by some experts in the field; plaintiffs’ language barriers and resulting lost educational opportunities stem from their national origins. View "Issa v. Lancaster School District" on Justia Law

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Park, a citizen of South Korea, was ordered removed in 2009, in part for submitting fraudulent documents in support of his visa application. He claims that he subsequently became eligible for a “section 212(i)” waiver of inadmissibility. Because of the passage of time, the Board of Immigration Appeals could only reopen his removal proceedings through 8 C.F.R. 1003.2(a), the “sua sponte” reopening provision. The BIA employs that provision only in extraordinary circumstances; its discretion is broad. Park argued that the BIA has consistently reopened sua sponte for aliens who have become eligible for relief from removal after their cases have ended, thus establishing a “settled course of adjudication” that it is now bound to follow. The Third Circuit dismissed Park’s petition for lack of jurisdiction. Park neither showed nor established a reasonable inference that the BIA has constrained its discretion in a way that would allow judicial review of its decision denying sua sponte reopening. View "Park v. Attorney General United States" on Justia Law

Posted in: Immigration Law

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Mateo-Medina, a citizen of the Dominican Republic, was deported in 2012 after serving five months for unlawfully obtaining a U.S. passport. Shortly after his deportation, his common-law wife, Rasuk, a U.S. citizen with whom Mateo-Medina had lived for 15 years, was diagnosed with terminal cancer. Rasuk had two adult sons from a prior marriage, both drug addicts. One lived with the couple; the couple was raising the young child (Angel) of her other son. When Mateo-Medina learned of the diagnosis, he returned to the U.S. to care for Rasuk, who died in 2014. Mateo-Medina became Angel’s sole caretaker. Rasuk’s son reported Mateo-Medina to immigration authorities. He pled guilty to reentry after removal, 8 U.S.C. 1326(a); (b)(2). Mateo-Medina’s PSR calculated a sentence of eight-to-14 months’ imprisonment. Mateo-Medina had a 2000 DUI conviction, the 2012 fraudulent passport conviction, and six arrests that did not lead to conviction. The PSR did not contain any information about the conduct underlying those arrests. The court departed downward one level; the prosecutor and the defense argued for a sentence of time served (six months), the lower end of the Guidelines range. The court sentenced Mateo-Medina to 12 months plus one day. The Third Circuit vacated the sentence, finding that the court mischaracterized Mateo-Medina’s criminal history in a way that affected his sentence. View "United States v. Mateo-Medina" on Justia Law

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Rivas, a citizen of the Dominican Republic, was admitted to the U.S. as a legal permanent resident when he was two years old. In 2013, he was convicted of the purchase of PCP, and sentenced to 18 months’ probation. DHS initiated removal under 8 U.S.C. 1227(a)(2)(B)(i) for being convicted of two state law violations relating to a controlled substance. Rivas petitioned under the Pennsylvania Post Conviction Relief Act (PCRA), arguing that his attorney failed to advise him of the possible immigration consequences of conviction and advised him not to appeal. Rivas’s counsel testified that he advised Rivas of the immigration consequences and that he “probably would have advised” an appeal was “not a winnable case.” The court denied the PCRA petition, vacated the guilty verdicts and placed Rivas on three years' probation under a deferred adjudication agreement. Rivas was required to “stipulate to all of the Commonwealth’s evidence.” The Commonwealth agreed to withdraw the charges if Rivas successfully completed his pretrial probation. Rivas unsuccessfully moved to terminate his removal proceedings. The IJ stated that “probably the only reason for the conviction vacatur” was to “avoid the [i]mmigration consequences.” The BIA agreed, adding that the order still was a “conviction” because Rivas stipulated to the evidence and had his liberty restrained. The Third Circuit granted his petition for review, stating that the Notice of Removal did not specify participation in a deferred adjudication program as a basis for removal. View "Rodriguez v. Attorney General United States" on Justia Law

Posted in: Immigration Law