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

Articles Posted in Immigration Law
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Hugo Abraham Aguilar, a native and citizen of Honduras, entered the United States without inspection in 2001 and has three U.S. citizen children. In January 2014, he was arrested in New Jersey for allegedly sexually assaulting his stepdaughter and remained in pretrial detention for 1,332 days due to his inability to afford bail. In May 2017, Aguilar pled guilty to a reduced charge of third-degree endangering the welfare of a child and was sentenced to 1,332 days in prison, with credit for time served. Shortly after his sentencing, the Department of Homeland Security initiated removal proceedings against him.The Immigration Judge (IJ) found Aguilar statutorily ineligible for cancellation of removal, citing his inability to demonstrate "good moral character" due to his confinement for more than 180 days as a result of his conviction. The IJ also denied his request for a continuance to challenge his conviction in state court. The Board of Immigration Appeals (BIA) dismissed Aguilar's appeal, agreeing with the IJ's findings and concluding that the IJ acted within his discretion in denying the continuance.The United States Court of Appeals for the Third Circuit reviewed the case. The court held that pre-conviction detention credited toward a defendant's sentence is considered confinement "as a result of conviction" under the Immigration and Nationality Act (INA). Consequently, Aguilar's 1,332 days of pre-conviction detention, credited as time served, precluded him from establishing the required good moral character for cancellation of removal. The court also denied as moot Aguilar's challenge to the BIA's decision dismissing his appeal from the IJ's denial of a continuance, as his state post-conviction relief efforts had concluded unsuccessfully. The Third Circuit denied Aguilar's petition for review. View "Aguilar v. Attorney General United States" on Justia Law

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The case involves Carlos Inestroza-Tosta, a native and citizen of Honduras, who illegally entered the United States multiple times and was removed on each occasion. After his third illegal entry, he was apprehended following an arrest for aggravated assault. His prior order of removal was reinstated, but he claimed a fear of returning to Honduras and sought withholding of removal and relief under the Convention Against Torture. His requests were denied by the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA), leading to his appeal to the United States Court of Appeals for the Third Circuit.The BIA dismissed Inestroza-Tosta's appeal, affirming the IJ's denial of his motion for administrative closure and his applications for statutory withholding of removal and relief under the Convention Against Torture. The BIA held that Inestroza-Tosta had not established that any harm he experienced or feared was connected to a protected ground, and his proposed particular social group, "gang violence recipients," was not recognized by law.The United States Court of Appeals for the Third Circuit held that the 30-day deadline for a would-be immigrant to seek judicial review of a "final order of removal" is nonjurisdictional. The court also held that an order of removal is not final until a decision has been made on the alien’s request for withholding of removal. Applying these conclusions to this case, the court ruled that Inestroza-Tosta timely sought review of the BIA’s denial of his requests for statutory withholding of removal and relief under the Convention Against Torture. However, his petition failed on the merits. Although he suffered persecution in the past, he could not demonstrate a clear probability of future harm based on a protected status or trait. Therefore, while his petition for review was timely, it was denied. View "Inestroza-Tosta v. Attorney General United States of America" on Justia Law

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Yahye Herrow, a member of the minority Bandabow Tribe in Somalia, sought review of the Board of Immigration Appeals' (BIA) denial of his claims for withholding of removal and relief under the Convention Against Torture (CAT). Herrow, who had been granted asylum in 2000, was ordered to be removed following his 2018 conviction for Conspiracy to Commit Mail Fraud and Wire Fraud. The United States Court of Appeals for the Third Circuit upheld the BIA's determination that "Repatriated Minority Somalis" did not constitute a cognizable social group for the purpose of withholding of removal. However, the court found that the BIA had failed to consider evidence favorable to Herrow's CAT claim, which contended that he was likely to face torture upon return to Somalia and that the Somali government would acquiesce to such torture. The court granted Herrow's petition in part and remanded the case to the BIA for a more comprehensive review of the evidence related to his CAT claim. View "Herrow v. Attorney General United States of America" on Justia Law

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In 1992, Pesikan a six-year-old citizen of Bosnia, along with his mother, fled Bosnia. In 1998, they entered the U.S. as refugees and gained lawful permanent resident status. In 2017, Pesikan caused a car accident. A responding officer found a half-consumed bottle of whiskey on Pesikan’s driver’s seat and marijuana in the door pocket. A blood test of Pesikan revealed the presence of cocaine, marijuana, alprazolam, and a ,054 blood alcohol content. Pesikan was convicted in Pennsylvania of DUI six counts; the court merged the DUI counts into Count 2–for driving while under the influence of marijuana.Pesikan was charged with removability as an alien convicted of violating a law relating to a controlled substance, 8 U.S.C. 1227(a)(2)(B)(i), which asks whether a noncitizen has been convicted of a violation of any law relating to a federally controlled substance. Pesikan argued that, applying the categorical approach to comparing state and federal crimes, Pennsylvania’s DUI statute is broader than the federal law because it allows for convictions based on the use of substances that are not federally controlled. The IJ held that the Pennsylvania statute is divisible, applied the modified categorical approach, and denied a motion to terminate. The BIA dismissed Pesikan’s appeal. The Third Circuit granted a petition for review. Because the identity of the specific controlled substance is not an element of the Pennsylvania DUI statute, that statute is indivisible and cannot serve as the basis for Pesikan’s removal. View "Pesikan v. Attorney General United States" on Justia Law

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Avila, a citizen of Honduras, experienced extreme sexual violence and attempted suicide more than once before fleeing Honduras. She became a lawful permanent resident in 2001. Between 1990-2004, she was convicted of misdemeanor shoplifting; misdemeanor tampering with public records; and petty theft. In 2008, Avila re-entered the U.S. and was charged with removability, 8 U.S.C. 1182(a)(2)(A)(i)(I), because her convictions were for “Crimes Involving Moral Turpitude” (CIMT). Avila failed to attend her scheduled hearing and was ordered removed in absentia. In 2015, her proceeding was reopened. Avila moved to terminate her removal proceedings, conceding that her petty theft offense was a CIMT but citing the petty offense exception, which applies to a noncitizen “who committed only one crime.” She argued that her misdemeanor shoplifting and tampering with public records convictions did not qualify as “crimes” but were merely disorderly persons offenses.An IJ determined that Avila was not eligible for cancellation of removal, finding that the disorderly persons offenses were CIMTs for immigration purposes. The BIA affirmed. The Third Circuit agreed that disorderly persons offenses under section 2C:20-4(a) of the New Jersey Statutes constitute convictions of crimes for immigration purposes. The court granted reconsideration of Avila’s asylum claim The BIA failed to consider whether Avila’s particular social group, “Honduran women in a domestic relationship where the male believes that women are to live under male domination,” was cognizable in light of the specific country conditions in Honduras. View "Avila v. Attorney General United States of America" on Justia Law

Posted in: Immigration Law
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Al-Hasani was born in Syria in 1966. He worked there as a human rights lawyer. In 2003, Al-Hasani married Khalili, who lived in Morocco. After their son was born, the Syrian government imposed a travel ban on Al-Hasani, preventing him from seeing his family. In 2005, Al-Hasani married fellow Syrian, Jouni. He did not divorce Khalili; Syrian law did not require it. Jouni gave birth to Al-Hasani’s son. In 2009, Al-Hasani was arrested for crimes including “weakening the State’s ‘prestige.’” In 2011, Al-Hasani was released but Wikileaks reported that Al-Hasani had provided human rights information to the U.S. Al-Hasani fled Syria that day, but Jouni stayed in Damascus. Al-Hasani was paroled into the United States in 2011. In 2012, he was granted permanent resident status. Al-Hasani described legal barriers to divorce in Syria and the associated stigma. He eventually divorced Khalili in New Jersey. Al-Hasani contends he never lived in a marital relationship with both women at the same time. Al-Hasani applied for naturalization, describing the circumstances of his two marriages.USCIS denied his application because polygamy is a statutory bar to a finding of "good moral character” required for naturalization, 8 U.S.C. 1427(a). The Third Circuit upheld summary judgment for the government. An individual seeking to naturalize as a U.S. citizen has the burden of proving by a preponderance of the evidence"that he meets all of the requirements. The polygamy bar is not ambiguous as applied to Al-Hasani. View "Al-Hasani v. Secretary United States Department of Homeland Security" on Justia Law

Posted in: Immigration Law
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Madrid-Mancia, who entered the United States from Honduras without being admitted or paroled, was immediately detained and served a putative Notice to Appear (NTA) charging her as removable, 8 U.S.C. 1229(a)(1)(A)–(D). The putative NTA directed Madrid-Mancia that she was “required to provide the DHS, in writing, with [her] full mailing address and telephone number,” and “notify the Immigration Court immediately” of any changes. It warned that “a removal order may be made by the immigration judge in [her] absence” if she failed to appear when summoned. The document stated that a removal hearing would take place on “a date to be set at a time to be set.” The Department of Justice sent Madrid-Mancia a second document (a “Notice of Hearing”) years later providing the missing information. She had moved and claims she never received the notice. When Madrid-Mancia did not appear as directed, she was ordered removed in absentia.The Third Circuit ordered that the removal order be rescinded. Congress only allows a supplemental notice “in the case of any change or postponement in the time and place of [an alien’s removal] proceedings,” 8 U.S.C. 1229(a)(2)(A). Here, no change or postponement occurred; DHS never issued a new Notice to Appear. View "Madrid-Mancia v. Attorney General of the United States" on Justia Law

Posted in: Immigration Law
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Petitioner, a Salvadoran native, challenged the order to remove him from this country. In 2016, he fled to the United States. When he arrived, he was charged as inadmissible and put into removal proceedings. He conceded that he was removable but sought asylum, withholding of removal, and protection under the Convention Against Torture. An immigration judge denied his requests and ordered him removed, and the Board of Immigration Appeals dismissed his appeal. He petitioned for review.   The Fourth Circuit granted the petition as to his Convention Against Torture claim, vacated the Board’s order, and remanded. But the court denied his petition for asylum and withholding of removal. The court explained that a Convention claimant must satisfy a two-pronged test, showing both that (1) if he returned home, he would be tortured and (2) the government would acquiesce to that torture. The court wrote that here, neither the immigration judge nor the Board followed the court’s instructions. First, at Step 1A, it is not clear that the immigration judge forecasted what harm Petitioner would likely face back in El Salvador. He found only (at Step 1B) that the threats previously made by police did not amount to torture, so future torture was unlikely. Second, rather than separating the two steps and reviewing Step 1B de novo, the Board affirmed the whole Prong 1 analysis as not clearly erroneous. And third, the Board did the same at Prong 2, reviewing the whole thing for clear errors rather than reviewing Step 2B de novo. View "Mauricio Llanes-Quinteros v. Attorney General United States" on Justia Law

Posted in: Immigration Law
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Kosh, a Liberian citizen, arrived in the U.S. in 2001 with a false Portuguese passport and requested entry under the Visa Waiver Program (VWP), 8 U.S.C. 1187(a). Like all VWP entrants, Kosh signed waived any right “to contest, other than on the basis of an application for asylum, any action for removal.” Kosh confessed his Portuguese passport was fake and sought asylum. Kosh feared returning to Liberia, which had an ongoing civil war. His father had been murdered and Kosh was arrested before escaping and fleeing to the U.S. The IJ granted Kosh asylum. Kosh married and had four children. He left the U.S. in 2005 using his refugee travel document and apparently re-entered that year.Kosh was convicted of conspiracy to defraud the United States and filing false and fraudulent income tax returns. USCIS denied Kosh’s application to adjust his status to that of a lawful permanent resident. His criminal convictions could make him ineligible for adjustment of status, but DHS can waive inadmissibility “for humanitarian purposes.” An IJ reopened Kosh’s asylum-only proceeding and terminated his asylum status. Kosh argued that DHS, instead of reopening his earlier proceedings, should have filed removal proceedings under 8 U.S.C. 1229a, which would allow him to seek adjustment of status.The Third Circuit granted Kosh’s motion for a stay of removal and vacated. If Kosh re-entered the country as an asylee without signing a new VWP form, he is entitled to complete-jurisdiction proceedings in which he can raise an adjustment-of-status claim. View "Kosh Ishmael v. Attorney General United States" on Justia Law

Posted in: Immigration Law
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Cortez-Amador, age 16, fled from Guatemala in 2016, following his father’s murder by gang members. He entered the U.S. without inspection and was placed by in his sister’s custody. In 2020, USCIS granted him Special Immigrant Juvenile Status (SIJS), which is available after a juvenile court finds it would not be in the child’s best interest to return to their country of last habitual residence. An SIJS recipient may pursue legal permanent residency.In 2019, while awaiting his SIJS classification, Cortez-Amador was charged with sexual assault on a child under the age of 13. He pleaded guilty to nonsexual child endangerment and admitted giving the alleged victim a cigarette. He was sentenced to 364 days' incarceration. Charged as removable, Cortez-Amador argued that his SIJS exempted him from removal; he should be granted an adjustment of status; and he was entitled to asylum (8 U.S.C. 1158), withholding of removal (1231(b)(3)), and/or Convention Against Torture (CAT) protection because the group that killed his father would target him in Guatemala.An IJ denied relief. The BIA affirmed, agreeing that SIJS parole applies for adjustment of status only, not removal; that the IJ properly exercised its discretion in denying an adjustment of status; and that any harm did not rise to the level of past persecution, so Cortez-Amador had no objectively reasonable fear of future harm. The Third Circuit rejected a petition for review, stating that the agency decisions do not reflect any error of law or are otherwise supported by substantial evidence. View "Cortez-Amador v. Attorney General United States of America" on Justia Law

Posted in: Immigration Law