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

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

Ku, a citizen of Taiwan, was admitted to the U.S. in 1997 and became a lawful permanent resident in 2002. In 2014, Ku was charged with a single count of wire fraud. Ku waived her right to an indictment and was charged by information, which alleged that Ku was managing the finances of her in-laws and defrauded her in-laws by making personal use of their accounts. The BIA determined that Ku had committed an aggravated felony under 8 U.S.C. 1101(a)(43)(M)(i) because that prior conviction constituted an offense involving fraud or deceit in which the loss to the victims exceeded $10,000 and that the conviction constituted a “crime involving moral turpitude” under 8 U.S.C. 1182(a)(2)(A)(i)(I) such that, without a waiver, she is ineligible for an adjustment of status. The BIA reversed the Immigration Judge, who had granted Ku a waiver of inadmissibility under 8 U.S.C. 1182(h)(1)(B) based on the extreme hardship that her deportation would cause her U.S.-citizen children. The Third Circuit rejected Ku’s petition for review. The loss to the victims, over $10,000, was sufficiently tethered to Ku’s conviction that the conviction qualifies as an aggravated felony; wire fraud constitutes a crime of moral turpitude. The court noted that it lacked jurisdiction to review the discretionary waiver of admissibility. View "Ku v. Attorney General United States" on Justia Law

Liao, a citizen of China, became a lawful U.S. permanent resident in 2005. In 2015, Liao had a physical altercation with his girlfriend, Yu. A neighbor called the police. Yu told responding officers that she was holding her infant son, J.Y., while Liao struck her, but that J.Y. was not “hit or hurt.” She said, however, that during the fight, J.Y. was placed on the bed and fell to the floor. Officers arrested Liao, charging him with three offenses, including endangering the welfare of a child, Pa. Cons. Stat. 4304(a)(1). Liao was convicted and served 106 days of his prison sentence. An IJ ordered Liao’s removal for committing “a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment,” which rendered him removable under 8 U.S.C. 1227(a)(2)(E)(i). The Third Circuit granted a petition for review and remanded to the BIA, reasoning that the elements of his conviction do not match the elements of the crime of “child abuse” under federal law, which requires a specified risk of harm that rises above conduct that creates only the bare potential for non-serious harm. The Pennsylvania child endangerment statute in effect at the time of Liao’s conviction did not require such a risk. View "Liao v. Attorney General United States" on Justia Law

Salmoran, a citizen of Mexico, was granted lawful permanent resident status in 2004. In 2015, he pled guilty to violation of New Jersey Statutes 2C:24- 4(b)(5)(b): Any person who knowingly possesses or knowingly views any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, including on the Internet, is guilty of a crime of the fourth degree. DHS charged Salmoran as removable for having been convicted of: the aggravated felony crime of sexual abuse of a minor; an offense relating to child pornography; and a crime of child abuse, child neglect, or child abandonment. The BIA held that the conviction “categorically constitutes a crime of child abuse," so as to subject him to removal (8 U.S.C. 1101(a)(43)(I), 1227(a)(2)(E)(i)) but did not address whether the conviction was categorically an aggravated felony for an offense relating to child pornography, rejected Salmoran’s argument that the state statute was broader than the federal offense, and found that Salmoran was “statutorily precluded from applying for cancellation of removal. The Third Circuit remanded. The conviction qualifies as a crime of child abuse, but does not qualify as an aggravated felony relating to child pornography; while Salmoran is removable, he may still file an application for cancellation of removal. View "Salmoran v. Attorney General United States" on Justia Law

McClure-Potts contacted police about Samarin, who entered the U.S. without inspection from Ukraine. McClure-Potts claimed she was trying to adopt Samarin, who was 19 years old and that Samarin had been “speaking of Hitler against the Jews” and might have stolen a rifle. McClure-Potts provided a birth certificate indicating that Samarin was born in 1992. Police discovered that McClure-Potts had previously filed runaway reports regarding a minor son (Asher) apparently born in 1997; Samarin was posing as Asher and attending high school. The school provided a sworn statement from McClure-Potts that Samarin was born in 1997, with applications for free/reduced lunch and health benefits. Samarin claimed that he had moved in with McClure-Potts, then was told to cut ties with his family and surrender his money and his identification documents. He was forced to do household work. McClure-Potts obtained a Social Security card for "Asher," and used it to procure $7,336 in income tax credits and $13,653.28 in nutritional and health benefits. McClure-Potts was charged with Social Security Fraud, 42 U.S.C. 408(a)(6); Harboring an Illegal Alien, 8 U.S.C. 1324(a)(1)(A)(iii), (a)(2); and Unlawful Conduct Respecting Documents in Furtherance of Forced Labor, 18 U.S.C. 1589, 1590. McClure-Potts pled guilty to the Social Security Fraud and Harboring counts. Based on the amount of loss ($20,989.28) and the court’s refusal to grant an offense level reduction due to the claim that her fraud was committed “other than for profit," she was sentenced to five months. The Third Circuit affirmed. The benefits that McClure-Potts sought and received were “payment” for her harboring Samarin. View "United States v. McClure-Potts" on Justia Law

The Third Circuit affirmed the order of the district court dismissing Appellant’s petition for a writ of habeas corpus under 28 U.S.C. 2241, holding that, although Appellant has been detained pending reveal proceedings since April 2016, the Due Process Clause of the Fifth Amendment did not entitle Appellant to a new bond hearing at which the government would bear the burden of justifying his continued detention.Appellant entered the United States on a tourist visa, which he overstayed. A year later, an Interpol "Red Notice" requested by Russian identified Appellant as a fugitive wanted for prosecution on criminal fraud charges. On April 22, 2016, Immigration and Customs Enforcement detained Appellant under 8 U.S.C. 1226(a) and initiated removal proceedings, which are still pending in an immigration court. Appellant filed this action alleging that his continued detention deprived him of due process unless the government could show clear and convincing evidence of risk of flight or danger to the community. The district court dismissed the petition. The Third Circuit affirmed. The dissent argued that where the Russian government has been employing Interpol Red Notices to pursue and harass opponents of the Russian regime and where Appellant had no criminal record anywhere, Appellant was entitled to a new hearing to review the finding of “danger to the community.” View "Borbot v. Warden Hudson County Correctio" on Justia Law

The Third Circuit held that New Jersey’s drug-trafficking law of which Petitioner was convicted is coextensive with its federal counterpart and that on the date of Petitioner’s conviction, New Jersey’s list of drugs was no broader than the federal list, making Petitioner removable.Petitioner was convicted of four drug-related crimes under New Jersey law. For the latter three counts, the jury was instructed that it could convict Petitioner for attempting to transfer cocaine or to aid another in distributing cocaine. Thereafter, Petitioner was charged as removable. The government claimed (1) Petitioner’s New Jersey drug-distribution convictions under N.J. Stat. Ann. 2C:35-5(a)(1)&(b)(1) match the federal Controlled Substances Act’s ban on drug trafficking, 21 U.S.C. 841(a)(1), making Petitioner removable under 8 U.S.C. 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony; and (2) Petitioner’s convictions related to federally controlled substances, and therefore, Petitioner was removable under 8 U.S.C. 1227(a)(2)(B)(i) for having been convicted of a controlled-substance offense. The immigration judge sustained the charges. The Board of Immigration Appeals affirmed. The Third Circuit held that Petitioner was removable and ineligible for cancellation of removal because (1) New Jersey attempt law is coextensive with federal law, and (2) on the date of his conviction, Petitioner was convicted of a controlled-substance offense that is an aggravated felony. View "Martinez v. Attorney General, United States" on Justia Law

Saravia is a citizen of El Salvador. When Saravia was five, his mother left for the U.S. for economic reasons. In 2005, members of MS-13 began trying to recruit Saravia. He refused; they beat and threatened him with the murder of his family if his father reported the gang to the police. His father to send Saravia and Saravia’s younger sister to live with their mother in New Jersey. They entered without inspection in 2006. Saravia claims that MS-13 subsequently killed two of his cousins and attacked his father. In 2015, Saravia was arrested for aggravated assault, simple assault on a law enforcement officer, resisting arrest by physical force or violence, aggravated assault with a deadly weapon, unlawful possession of a firearm, and unlawful possession of a weapon. Saravia testified that, while he was in police custody, MS-13 called his mother and threatened to kill him if he returned to El Salvador. During his probation, Saravia was arrested for driving under the influence. Saravia was denied asylum and withholding of removal, 8 U.S.C. 1231(b)(3)(A), and relief under the Convention Against Torture. The IJ found Saravia credible but determined that Saravia failed to corroborate his claim. The Board affirmed. The Third Circuit vacated, based on the Board’s failure to follow precedent holding that an IJ must “give the applicant notice of what corroboration will be expected and an opportunity to present an explanation if the applicant cannot produce such corroboration.” View "Saravia v. Attorney General United States" on Justia Law

Guerrero-Sanchez attempted to unlawfully enter the U.S.in 1998. He was removed back to Mexico. Guerrero-Sanchez reentered the U.S. without inspection. In 2012, he was arrested for his role in an Idaho-based drug trafficking organization. Guerrero-Sanchez pled guilty and was sentenced to 42 months of imprisonment. ICE reinstated his 1998 order of removal, 8 U.S.C. 1231(a)(5). The Third Circuit denied his petition for review and motion for stay of the reinstated removal order. Guerrero-Sanchez completed his sentence and was transferred to ICE custody pending removal. An asylum officer concluded that Guerrero-Sanchez's claim that he would be tortured by a drug cartel if removed to Mexico was reasonable and referred the matter to an immigration judge. The IJ found that he was ineligible for withholding relief under section 1231(b)(3) because he committed a particularly serious crime and that he did not qualify for Convention Against Torture relief because he did not establish that the Mexican Government would consent to or be willfully blind to torture. While his case remained pending before the BIA, Guerrero-Sanchez sought habeas relief, challenging his detention while he awaits a determination on whether he will be afforded country-specific protection from removal. The district court granted the petition. The Third Circuit affirmed. The detention of an alien, who has a reinstated order of removal but is also pursuing withholding-only relief is governed by the post-removal law, 8 U.S.C. 1231(a) rather than section 1226(a), the pre-removal statute; section 1231(a)(6) compels an implicit bond hearing requirement after prolonged detention. View "Guerrero-Sanchez v. Warden York County Prison" on Justia Law