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

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

Tima, a citizen of Cameroon, entered the U.S. in 1989 on a nonimmigrant student visa. To stay past his student-eligibility period, he entered into a sham marriage. Tima pleaded guilty to a felony charge of making false statements, admitting to the sham. The government did not promptly issue a notice to appear. In 1997, Tima married a now-naturalized citizen. They have three children, all U.S. citizens. The government issued Tima a notice to appear in 2003. An IJ sustained charges of marriage fraud (8 U.S.C.1227(a)(1)(G)(ii)), termination of conditional-permanent-resident status (1227(a)(1)(D)(i)), and a moral-turpitude conviction (1227(a)(2)(A)(i)) and ruled that the fraud waiver, under which the Attorney General may waive a removal charge that is based on inadmissibility for misrepresenting a material fact to gain admission, could extend to the marriage-fraud charge but not to the other charges. The BIA affirmed. The Third Circuit denied Tima’s petition for review. If the Attorney General grants a fraud waiver, the Act automatically extends that waiver to other removal provisions based on “grounds of inadmissibility directly resulting from such fraud or misrepresentation” (1227(a)(1)(H)), but a removal charge based on a post-admission crime is not based on a “ground of inadmissibility.” View "Tima v. Attorney General United States" on Justia Law

Wang, a citizen of China, obtained lawful U.S. permanent resident status in 2010 and worked in a financial services firm. In 2011, without authorization, he purchased oil futures contracts using the firm’s trading account and transferred those contracts between firm accounts. In company records, Wang marked these contracts as closed (sold) when they were, in fact, still open. After the firm discovered the transactions, the FBI arrested Wang. The indictment alleged that, upon discovery of a loss of $2.2 million, the firm sold the contracts. Wang pleaded guilty to violating the Commodity Exchange Act by making a false report in connection with a commodities transaction, 7 U.S.C. 6b(a)(1)(B) and 13(a)(2) and was sentenced to three months in prison and ordered to pay $2.2 million in restitution. Wang was ordered removed. The BIA affirmed. The Sixth Circuit granted a petition for review and remanded, first holding that it had authority to consider de novo whether Wang’s conviction qualifies as an aggravated felony because it is “a purely legal question.” Wang is not properly categorized as an aggravated felon under 8 U.S.C. 1101(a)(43)(M)(i) because crimes “involv[ing] fraud or deceit” require materiality as an element of proof and Section 6b(a)(1)(B) lacks this element. View "Wang v. Attorney General United States" on Justia Law

Ricketts petitioned the Third Circuit to review the BIA's denial of his motions to reopen his removal proceedings, arguing that he is actually a U.S. citizen. Finding that there were genuine issues of material fact as to his nationality, the court granted a joint motion and transferred the nationality dispute to the Eastern District of New York, where Ricketts resided at the relevant time (8 U.S.C. 1252(b)(5)(B)). After an evidentiary hearing, that court decided that the evidence overwhelmingly established that Ricketts is a Jamaican national who appropriated the identity of a U.S. citizen. Ricketts sought review by the Second Circuit. The district court transmitted the appeal to the Third Circuit. The government sought transfer the to the Second Circuit, requesting that the Third Circuit retain jurisdiction over Ricketts’s other consolidated petitions for review. The Third Circuit held that an appeal from a nationality determination following a transfer must be taken to the appellate court that typically hears appeals from the district court making the determination rather than to the appellate court that transferred the case to the district court in the first place. The statute indicates that Congress intended that hearings under section 1252(b)(5)(B) be treated as new proceedings separate from the underlying petitions for review. The Third Circuit held it lacked jurisdiction to entertain an appeal from a nationality determination made by the Eastern District of New York. View "Ricketts v. Attorney General United States" on Justia Law

"Immediate relatives” of U.S. Citizens can enter the United States without regard to numerical limitations on immigration. The Adam Walsh Child Protection and Safety Act of 2006, 120 Stat. 587 (AWA) amended the statute so that a citizen “who has been convicted of a specified offense against a minor” may not file any petition on behalf of such relatives “unless the Secretary of Homeland Security, in the Secretary’s sole and unreviewable discretion, determines that the citizen poses no risk to the alien.” The definition of a “specified offense against a minor,” includes “[c]riminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct.” U.S. Citizenship and Immigration Services (USCIS) memos state that “a petitioner who has been convicted of a specified offense against a minor must submit evidence of rehabilitation and any other relevant evidence that clearly demonstrates, beyond any reasonable doubt," that he poses no risk and that “approval recommendations should be rare.” In 2004, Bakran, a U.S. citizen, was convicted of aggravated indecent assault and unlawful contact with a minor. In 2012, Bakran married an adult Indian national and sought lawful permanent resident status for her. USCIS denied his application citing AWA. Bakran claimed violations of the Constitution and Administrative Procedures Act, 5 U.S.C. 701. The Third Circuit held that the protocols Bakran challenged simply guide the Secretary’s determination; courts lack jurisdiction to review them. The AWA does not infringe Bakran’s marriage right but deprives him of an immigration benefit to which he has no constitutional right. The Act is aimed at providing prospective protection and is not impermissibly retroactive. View "Bakran v. Secretary, United States Department of Homeland Security" on Justia Law

S.E.R.L., a native of Honduras, fled to the U.S. in 2014 and unsuccessfully sought asylum and statutory withholding of removal based on membership in a proposed particular social group “immediate family members of Honduran women unable to leave a domestic relationship.” She fears persecution by Angel, who abducted, raped, and continues to stalk S.E.R.L.’s daughter, who has already been granted asylum. Orellana, S.E.R.L.’s stepfather, has repeatedly abused S.E.R.L.’s mother. An immigration judge found S.E.R.L. credible but concluded that S.E.R.L. had not met her burden to establish eligibility for relief. The IJ reasoned that Angel had targeted S.E.R.L.’s daughter, not her and that “her stepfather never physically harmed her.” The IJ stated that any harm she suffered was not on account of a protected ground; her proposed group “lack[ed] the requisite level of particularity and social distinction” under 8 U.S.C. 1101(a)(42). The BIA dismissed an appeal. The Third Circuit denied a petition for review, citing the BIA’s three-part test for proving the existence of a cognizable particular social group, which requires applicants to establish that the group [at issue] is composed of members who share a common immutable characteristic, defined with particularity, and socially distinct within the society in question. That interpretation is entitled to Chevron deference. Substantial evidence supports the BIA’s determination that S.E.R.L. has not met its requirements. View "S.E.R.L. v. Attorney General United States" on Justia Law

Mothers and children fled violence perpetrated by gangs in Honduras and El Salvador and were apprehended near the U.S. border. They were moved to a Pennsylvania detention center. Immigration officers determined that they were inadmissible. They were ordered expeditiously removed, 8 U.S.C. 1225(b)(1), and unsuccessfully requested asylum. They sought habeas relief, claiming that Asylum Officers and IJs violated their constitutional and statutory rights in conducting the “credible fear” interviews. The Third Circuit initially affirmed the dismissal of the claims for lack of subject matter jurisdiction. The court held that, while the Suspension Clause of the Constitution would allow an aggrieved party with sufficient ties to the U.S. to challenge that lack of jurisdiction, the petitioners’ relationship to the U.S. amounted only to presence for a few hours before their apprehension. The children were subsequently accorded Special Immigrant Juvenile (SIJ) status—a classification intended to safeguard abused, abandoned, or neglected alien children who are able to meet rigorous eligibility requirements. The Third Circuit then reversed the dismissal, noting that protections afforded to SIJ children include eligibility for application of adjustment of status to that of lawful permanent residents, exemption from various grounds of inadmissibility, and procedural protections to ensure their status is not revoked without good cause. The jurisdiction-stripping provision of the Immigration and Nationality Act is an unconstitutional suspension of the writ of habeas corpus as applied to SIJ designees seeking judicial review of expedited removal orders. View "Osorio-Martinez v. Attorney General United States" on Justia Law

Bonilla, a citizen of El Salvador, first attempted to enter the U.S. illegally in 2010 and was removed but returned. In 2017, Bonilla was arrested and found to be the subject of a removal order. He expressed a fear of persecution or torture if returned to El Salvador. Bonilla first three meetings with an asylum officer ended because Bonilla wanted his attorney present. At the fourth meeting, with his attorney present via telephone, Bonilla stated that he had been extorted by a gang in El Salvador because they thought he received money from his family in the U.S. and had light skin color. They never physically harmed or threatened him and he did not report these incidents to the police. The asylum officer issued a negative reasonable fear determination. Bonilla then appeared before an IJ. Bonilla later declared that he did not request that his attorney be present because he believed his attorney was listening on the phone; his counsel submitted a letter notifying the IJ of counsel’s error in not appearing. The IJ upheld the determination. The Third Circuit denied a petition for review. Bonilla has not shown that the regulations explicitly invested him with a right to counsel at the IJ’s review hearing and Bonilla was not denied the opportunity to obtain the counsel of his choice; his attorney simply failed him. Bonilla has not shown that he suffered prejudice by the absence of his counsel. View "Bonilla v. Attorney General United States" on Justia Law

Moreno, a 49-year-old citizen of Argentina, was admitted to the U.S. under a grant of humanitarian parole in 1980. In 2015, Moreno pleaded guilty to one count of possession of child pornography under Pennsylvania’s “Sexual abuse of children” statute and was sentenced to five years of probation and required to register as a sex offender. DHS initiated removal proceedings in 2016, charging Moreno as removable for having been convicted of a crime involving moral turpitude under 8 U.S.C. 1182(a)(2)(A)(i)(I). The Immigration Judge ordered him removed; the Board of Immigration Appeals rejected Moreno’s appeal. The Third Circuit denied his petition for review, rejecting Moreno’s argument that, under the categorical approach, the least culpable conduct hypothetically necessary to sustain a conviction under the statute of his conviction is not morally turpitudinous. Pennsylvania’s Pennsylvania’s community consensus, as gauged by case law and legislative enactments, condemns the least culpable conduct punishable under the statute as morally turpitudinous. View "Moreno v. Attorney General United States" on Justia Law