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

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

E.D., a female immigration detainee at the Berks County Residential Center Immigration Family Center (BCRC), brought a 42 U.S.C. 1983 action against employee Sharkey, alleging that he violated her Fourteenth Amendment right to bodily integrity after the two had sexual relations. Sharkey’s co-workers and BCRC supervisor allegedly were deliberately indifferent to the violation and Berks County allegedly failed to implement policies to prevent the violating conduct. The District Court denied the defendants’ motion for qualified immunity. The Third Circuit affirmed, holding that immigration detainees are entitled to the same constitutional protections afforded by the Due Process Clause of the Fourteenth Amendment as pre-trial detainees and E.D.’s rights were clearly established. There is enough evidence to support an inference that the defendants knew of the risk facing E.D., and that their failure to take additional steps to protect her, acting in their capacity as either a co-worker or supervisor, “could be viewed by a factfinder as the sort of deliberate indifference” to a detainee’s safety that the Constitution forbids. View "E. D. v. Sharkey" on Justia Law

In 2006, Sambare, a citizen of Burkina Faso, was admitted to the U.S. as a lawful permanent resident. Sambare was subsequently convicted of credit card theft and forgery. In 2013, when Sambare returned from visiting his mother in Ghana, ICE asserted that Sambare was inadmissible under 8 U.S.C. 1182(a)(2)(A)(i)(I), having been convicted of “crime[s] involving moral turpitude.” Sambare obtained a waiver of inadmissibility, 8 U.S.C. 1182(h), which restored his status as a lawful permanent resident. In 2015, Pennsylvania police stopped Sambare in his vehicle after he allegedly made an illegal U-turn. Sambare, who initially provided a false name, admitted that he had smoked marijuana before driving. Sambare tested positive for marijuana in his system and pleaded guilty to driving under the influence of a Schedule I controlled substance. The Immigration Court found that Sambare was removable because his conviction was for a “violation of . . . any law or regulation of a State . . . relating to a controlled substance . . . , other than a single offense involving possession for one’s own use of 30 grams or less of marijuana,” 8 U.S.C. 1227(a)(2)(B)(i). The Third Circuit dismissed Sambare’s petition for review, agreeing that Sambare’s conviction “is associated with the prohibition of driving, operating, or actual physical control of the movement of a vehicle . . . while there is a controlled substance in the individual’s blood,” which “is more serious than simple possession. View "Sambare v. Attorney General United States" on Justia Law

Cabrera, born in the Dominican Republic in 1979, was admitted to the U.S. as a lawful permanent resident in 1988. Two years later, he was adopted by a natural born U.S. citizen, Attenborough. Had he been Attenborough’s biological child, 8 U.S.C. 1409, would have provided him a pathway to automatic derivative citizenship. As an adopted child, the statute does not apply to him and his road to citizenship is more difficult. In 2014, Cabrera pled guilty to conspiracy to possess with intent to distribute heroin and was sentenced to 36 months’ imprisonment. Upon his release, Cabrera was served with notice of removal proceedings based on conviction of an aggravated felony, 8 U.S.C. 1227(a)(2)(A)(iii), and conviction of a controlled substance offense, section 1227(a)(2)(B)(i). Cabrera argued, on constitutional grounds, that he was entitled to derivative citizenship through his adoptive father and could not be removed. The Immigration Judge held that he lacked jurisdiction to hear the constitutional claim and ordered Cabrera removed. The Board of Immigration Appeals affirmed. The Third Circuit denied a petition for review, rejecting Cabrera’s argument disparate treatment between adopted and biological children violates the guarantee of equal protection under the Fifth Amendment’s Due Process Clause. View "Cabrera v. Attorney General United States" on Justia Law

Liem, a citizen of Indonesia, is ethnically Chinese and a Seventh Day Adventist Christian. In Indonesia, Liem witnessed and experienced persecution based on belonging to these groups. In 1999, he obtained a six-month visa for vacationing in the U.S.. He stayed beyond its expiration, obtained employment, married, and fathered two American-born children. He is active at First Indonesian Seventh-Day Adventist Church. In 2003, Liem applied for asylum, withholding of removal, and protection under the Convention Against Torture. The IJ denied his asylum application as untimely but granted withholding of removal. The BIA vacated, stating Liem failed to establish a clear probability that he would be persecuted if returned to Indonesia. Liem moved to stay his removal and reopen the proceedings, referencing a continued pattern of anti-Chinese harassment and.a pattern of anti-Christian persecution. The BIA denied the motion, citing State Department findings of a decrease in discrimination against Chinese Christians in Indonesia. In 2018, ICE agents arrested Liem. Liem filed another motion to reopen, claiming that, since his 2003 merits hearing, conditions for Chinese Christians had materially deteriorated and that international agencies have reported that hatred and Islamic extremism directed at Indonesian Christians is rising, and the Indonesian government is unwilling to act for fear of reprisals from far-right Islamist groups. He noted the implementation of Sharia law in part of the country. The Third Circuit vacated the denial of his motion, finding that the BIA did not meaningfully consider the evidence and arguments nor explain its conclusions. View "Liem v. Attorney General United States" on Justia Law

Madar was born in communist-ruled Czechoslovakia in 1964, entered the U.S. in 1991, and overstayed. He has litigated his legal status in the decades since his arrival. Madar sought a declaration that he is a U.S. citizen because his late father, Jozef, was a citizen, and his father’s citizenship transmitted to him. Madar’s paternal grandmother, Cikovsky, was born in 1906 in Ohio. As a teenager, she left the U.S. to settle in Czechoslovakia. She married there and gave birth to Jozef in 1940. Jozef never lived in the U.S., married a non-U.S. citizen in Czechoslovakia and had children there. Jozef knew of his mother’s American birth, but did not know that this might entitle him to citizenship. In his son’s immigration proceedings, Jozef swore in an affidavit that the political circumstances of post-war Czechoslovakia would have made compliance with requirements that foreign-born children of citizens be physically present in the U.S. for some amount of time to retain citizenship, difficult, if not impossible. The Third Circuit affirmed that even if Jozef had retained his citizenship under an equitable theory that excused his noncompliance with statutory physical presence requirements, he did not transmit that citizenship to his son. View "Madar v. United States Citizenship and Immigration Services" on Justia Law

The U Visa, created under the Victims of Trafficking and Violence Protection Act of 2000, 114 Stat. 1464, grants temporary legal status to victims of specified crimes who have cooperated or are likely to cooperate in the investigation and prosecution of those crimes. After three years of holding a U Visa, an alien may apply for permanent resident status (8 U.S.C. 1255(m)(1)). Carmen entered the U.S. in 2005, became a lawful permanent resident under the “U Visa” statute because she was a rape victim, then sought permanent resident status for her son, Dario, under 8 U.S.C. 1255(m)(3), which empowers the U.S. Department of Homeland Security (DHS) to grant that status to certain family members, including a “child,” of an immigrant in Carmen’s situation. While that application was pending, Dario reached the age of 21, which made him ineligible under a DHS regulation that implements section 1255(m)(3). The Third Circuit upheld the denial of the application. Section 1255(m)(3) unambiguously requires DHS to assess the familial relationship required under that statute as it exists when DHS decides the application, even though this means a child can “age out” of eligibility while an application is pending. The DHS regulation adheres to this unambiguous meaning of the statute. View "Aybar v. Secretary United States Department of Homeland Security" on Justia Law

Philadelphia has received funds under the federal Edward Byrne Memorial Justice Assistance Grant Program every year since the program’s 2006 inception in 2006. The Justice Department notified the city that it was withholding its FY2017 award because the city was not in compliance with three newly implemented conditions that required greater coordination with federal officials on matters of immigration enforcement. The city filed suit and was awarded summary judgment. The Third Circuit affirmed the order to the extent that it enjoins enforcement of the challenged conditions against the city and vacated the order to the extent it imposed a requirement that the federal government obtain a judicial warrant before seeking custody of aliens in city custody.. Where, as here, the Executive Branch claims authority not granted to it in the Constitution, it “literally has no power to act … unless and until Congress confers power upon it.” Congress did not grant the Attorney General this authority and the Challenged Conditions were unlawfully imposed. The Byrne statute itself provides no such authority and the conditions are not authorized by 34 U.S.C. 10102, the provision establishing the “Duties and Functions of Assistant Attorney General.” View "City of Philadelphia v. Attorney General United States" on Justia Law

Dessouki was born in France in 1982. His parents never married; they separately immigrated to the U.S. Though they entered on temporary visas, his mother became a lawful permanent resident and his father a U.S. citizen. Dessouki remained on parole status. In 2003, Dessouki was convicted of drug-related felonies. The government sought to remove him but failed to prove that Dessouki was an alien. An IJ terminated his removal proceedings. A few years later, the government reopened the proceedings. A different IJ rejected Dessouki’s claim that he was a citizen. Dessouki, removed to France, returned to the U.S. and pleaded guilty to re-entry after deportation. Dessouki continued to claim citizenship. He unsuccessfully asked an IJ to reopen his removal proceedings. The Board of Immigration Appeals affirmed and denied a motion to reconsider. Dessouki then sought a declaration that he is entitled to “derived” citizenship through his father under 8 U.S.C. 1503(a). The district court dismissed for lack of subject-matter jurisdiction. The Third Circuit concluded that it must decide the issue and dismissed an appeal. Dessouki does not satisfy any of the statutory alternatives for derivative citizenship that existed at the time: his mother was never naturalized; both parents are alive; and there was no legal separation of his parents. View "Dessouki v. Attorney General United States" on Justia Law

Louis, a citizen of Haiti, entered the U.S illegally. He later applied for asylum. While that application was pending, he married a U.S. citizen and sought citizenship on that basis. Louis received a notice, dated August 2016, that he had to appear for an asylum hearing in June 2017; it stated that the immigration judge could hold the hearing and remove Louis if he did not attend. Louis, who does not speak English, consulted Thermitus, who is not a lawyer. Louis thought Thermitus was a lawyer. Thermitus did not hold himself out as a lawyer but as “an immigration expert that performed other work as well.” Thermitus stated Louis did not have to go to the hearing because he had another path to citizenship: marriage. Louis did not attend the hearing, which was held without him. Because he had conceded that he had entered the country illegally, the judge ordered him removed. Louis hired a real lawyer and unsuccessfully moved to reopen his case. The BIA affirmed because no “exceptional circumstances” had prevented Louis from attending his hearing. The Third Circuit denied a petition for review. Exceptional circumstances must be grave and beyond the applicant’s control. Holding the hearing without Louis did not violate due process because he had the opportunity to attend and chose not to. View "Louis v. Attorney General United States" on Justia Law