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

Orozco-Velasquez, a Guatemalan citizen, arrived in the U.S. in 1998-1999 without being admitted or paroled. In 2008, he was served with a notice to appear (NTA) before an IJ, noting that the date and time of removal proceedings were “to be set.” In 2010, he received another NTA, sent to correct the address. Five days later, April 12, 2010, he was served with a Notice announcing the date and time of removal proceedings. On May 14, 2010, Orozco-Velasquez sought cancellation of removal on the ground that his removal would result in “exceptional and extremely unusual hardship” to his mother, and moved to terminate removal proceedings, arguing that the 2010 NTA effectively superseded the 2008 NTA, so that he did not receive proper notice until after he had resided in the U.S. for a continuous ten-year period, 8 U.S.C. 1229(a)(1)(G)(i). The IJ ordered him removed. The BIA dismissed an appeal. The Third Circuit vacated. In requiring that an “alien [be] served a notice to appear under section 1229(a)” to suspend his accrual of continuous residency, 8 U.S.C. 1229b(d)(1) compels government compliance with each of section 1229(a)(1)’s NTA requirements. The government may amend and supplement its initial NTA; but to cut off an alien’s eligibility for cancellation of removal, it must do so within the 10 years of continuous residence. View "Orozco-Velasquez v. Att'y Gen. of the United States" on Justia Law

Singh, a citizen of India, was granted asylum in 1993, and adjusted to lawful permanent resident status in 1994. In 2000, Singh was convicted of conspiracy to counterfeit passports, counterfeiting and using visas, and mail fraud, 18 U.S.C. 371; unlawful possession of forged, counterfeited, altered, and falsely-made non-immigrant U.S. visas, 18 U.S.C. 1546. Singh departed the U.S. and re-entered in 2003. In 2009, he applied for admission as a lawful permanent resident. He was instead detained and served with a notice of removal charging him as inadmissible because he had committed a crime involving moral turpitude: his 2000 counterfeiting conviction. Singh appeared before the Immigration Court, acknowledged proper service, admitted all of the factual allegations, and conceded the sole charge of removability. Singh sought cancellation of removal, and indicated that he would not be seeking any alternative forms of relief. The IJ denied Singh’s application because Singh had not accrued the requisite seven years of continuous residence required by 8 U.S.C. 1229b(a). The BIA affirmed. The Third Circuit denied a petition for review. Singh’s continuous residency clock stopped in 2000 when he committed his crime involving moral turpitude and could never re-start. View "Singh v. Attorney Gen., United States" on Justia Law

Fazio, a permanent resident alien, was charged with conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine. Fazio pleaded guilty to the lesser-included offense of conspiring to distribute more than 200 grams but fewer than 300 grams of cocaine, waiving the right to take a direct appeal from his conviction or sentence, except if the government appealed from the sentence or the sentence exceeded the applicable statutory limits or unreasonably exceeded the Sentencing Guidelines range. Fazio waived the right to move to vacate sentence (28 U.S.C. 2255) and the right to file any other collateral proceeding attacking his conviction or sentence. The plea agreement stated: Fazio recognizes that pleading guilty may have consequences with respect to his immigration status … no one, including his own attorney or the district court, can predict to a certainty the effect of his conviction on his immigration status. The court reviewed the waiver in detail at the hearing. The Third Circuit affirmed denial of Fazio’s subsequent 28 U.S.C. 2255 motion to vacate his sentence, in which he argued that counsel was ineffective in failing to warn Fazio properly of the immigration consequences of his plea, as required by the Supreme Court in Padilla v. Kentucky, 2010. View "United States v. Fazio" on Justia Law

In 1991, Paek, a native and citizen of South Korea, was admitted to the U.S. as a Conditional lawful permanent resident (LPR) based on his mother’s marriage to a U.S. citizen and member of the U.S. military, qualifying Paek as an “alien son,” 8 U.S.C. 1186a(h)(2) In, 2000, Paek’s immigration status was adjusted. In 2005 and 2006, Paek was convicted of receiving stolen property, theft, and, relevant here, first degree robbery. After removal proceedings were initiated against him, Paek applied for adjustment of status on the basis of his own marriage to a U.S. citizen. He also sought a waiver of inadmissibility pursuant to 8 U.S.C. 1182 (h). The Immigration Judge determined that Paek was statutorily ineligible for a waiver because of the aggravated felony bar. Paek did not dispute that this offense constituted an aggravated felony, but argued that the bar does not apply to persons initially admitted as Conditional LPR. The IJ and Board of Immigration Appeals rejected that argument. The Third Circuit denied a petition for review, holding that Paek was statutorily ineligible for a section 212(h) waiver because he had committed an aggravated felony after his admission as a Conditional LPR. View "Paek v. Attorney Gen. of United States" on Justia Law

In 1991, when Johnson was six years old, Liberian rebels murdered Johnson’s father, a military officer under a prior government, seriously wounded Johnson’s mother, and bayonetted Johnson. Johnson escaped to a refugee camp in Ghana. In 2003, he was admitted into the U.S. as a refugee. In 2008, he was arrested, pleaded guilty to possession with intent to deliver marijuana, and was sentenced to probation and a $1 fine. The government charged him as removable under 8 U.S.C. 1227(a)(2)(A)(iii) for an aggravated felony conviction and under 8 U.S.C. 1227(a)(2)(B)(i) for a controlled substance conviction. Johnson sought adjustment of status as a refugee with a waiver of inadmissibility under 8 U.S.C. 1159(c), asylum, withholding of removal, and protection under the Convention Against Torture. The IJ sustained the charge based on Johnson’s controlled substance conviction, but did not sustain the charge predicated on Johnson’s aggravated felony conviction, concluding the record was insufficient to establish that Johnson’s conviction was for an aggravated felony, so Johnson was not statutorily barred from discretionary relief. The IJ granted him asylum, based on “other serious harm” Johnson would suffer if removed. The BIA ordered Johnson removed, finding that Johnson had been convicted of an aggravated felony and denied withholding of removal and CAT relief. The Third Circuit remanded with instructions to reinstate the IJ’s decision. The BIA erred in concluding Johnson’s conviction was an aggravated felony View "Johnson v. Att'y Gen. of United States" on Justia Law

In 2001, the eleventh year of a brutal civil war in Sierra Leone, rebels from the Revolutionary United Front (RUF) forcibly entered Sesay’s home and demanded he join the RUF. When he refused, and while his parents pleaded for his safety, the rebels blindfolded him and took him away. He spent about a month in a windowless room, repeatedly beaten for refusal to join. The rebels moved Sesay to a RUF encampment where he witnessed captives being executed and saw others with missing body parts. The rebels tried to train him to use a machine gun. He refused. They forced him, under supervision of an armed guard, to provide menial assistance, such as carrying weapons and ammunition. After about a month, Sesay escaped, fleeing to neighboring Guinea. In 2001, he entered the U.S. and applied for asylum. Except for a permitted trip to visit his ill mother, he has been in the U.S. ever since. The Board of Immigration Appeals concluded that there was no duress exception to the bar on asylum or withholding of removal for aliens who provide material support to terrorist groups, 8 U.S.C. 1158(b)(2)(A)(v), 1182(a)(3)(B)(i)(I), 1231(b)(3)(B), 1227(a)(4)(B), and denied relief. Stating sympathy for Sesay’s position, the Third Circuit affirmed. View "Sesay v. Att'y Gen. of the United States" on Justia Law

Alvarez, a two-year-old citizen of Mexico, entered the U.S. without admission or parole. In 1989 he became a lawful permanent resident. Alvarez served in the U.S. Army, 1991-2004. Alvarez has only departed the United States as a member of the Army. In 2000 Alvarez had sexual contact with a female platoon member who was so intoxicated that she was unable to consent. He provided a signed denial to the Army Criminal Investigation Division. He eventually pleaded guilty to violations of the Uniform Code of Military Justice: 10 U.S.C. 907, for making false official statements; 10 U.S.C. 925, sodomy; and, 10 U.S.C. 934, for two specifications of violating the general article. The judge sentenced Alvarez to a bad conduct discharge, to be reduced to the grade of E-1, and to be confined for 18 months. The sentence did not allocate the confinement to the convictions. In 2012, DHS agents arrested Alvarez. An IJ found him removable under 8 U.S.C. 1227(a)(2)(A)(iii) and 1101(a)(43)(F), as an alien who has been convicted of an aggravated felony. The BIA affirmed. The Third Circuit remanded. The BIA committed legal error in concluding that Alvarez’s sodomy conviction was a crime “for which the term of imprisonment [was] at least one year,” 8 U.S.C. 1101(a)(43)(F). View "Chavez-Alvarez v. Att'y Gen., United States" on Justia Law

Alvarez, a citizen of Mexico, entered the U.S. at a young age without inspection and later adjusted to lawful permanent resident status. He married a U.S. citizen, but is now divorced; he has sons who are citizens. In 2000, while serving in the U.S. Army, he was convicted by a General Court-Martial of giving false official statements (10 U.S.C. 907), sodomy (10 U.S.C. 925), and violating the general article (10 U.S.C. 934). He served 13 months and was released in 2002. ICE agents arrested him in 2012, charging him as removable under 8 U.S.C. 1227(a)(2)(A)(iii) for his conviction on an aggravated felony. He was ordered detained without bond under 8 U.S.C. 1226(c). The district court denied his petition for habeas corpus. The Third Circuit reversed with instructions that Alvarez must be afforded a prompt bond hearing. Beginning sometime after the six-month time-frame considered by the Supreme Court in Demore, the burdens to Alvarez’s liberties outweighed any justification for using presumptions to detain him without bond to further the goals of the statute. The statute’s goals would not have been, and will not be undermined by requiring the government to produce individualized evidence that Alvarez’s continued detention was or is necessary. View "Chavez-Alvarez v. Warden York County Prison" on Justia Law

Alencar, a Brazilian national, travelled to the U.S. on a B-2 nonimmigrant tourist visa in 1995. He has remained in the country unlawfully since the visa expired. Alencar was not authorized to work under visa, nor did he otherwise obtain employment authorization. Alencar has been seeking legal immigration status as a special immigrant religious worker since 1997. Despite rejection of his I-360 petitions, Alencar has been working as pastor for the Shalom Pentecostal Church since 1998. The petition at issue was filed by the Church on Alencar’s behalf in 2009. USCIS denied the petition, finding that the Church failed to establish, under newly promulgated 8 C.F.R. 204.5(m)(4) and (11), that Alencar had been “performing full-time work in lawful immigration status as a religious worker for at least the two-year period immediately preceding the filing.” The USCIS Appeals Office dismissed an appeal. The district court granted summary judgment, invalidating the Regulation, finding that the statutory language was unambiguous and that the Regulation’s addition of the “lawful status” requirement was inconsistent with the statute, and ordered USCIS to grant Alencar’s petition. The Third Circuit affirmed as to the invalidity of the regulation but remanded for further fact-finding on the remaining visa criteria. View "Shalom Pentecostal Church v. Sec'y, Dep't of Homeland Sec." on Justia Law

Posadas, a citizen of Honduras, unlawfully entered the U.S., was apprehended, found to be inadmissible under 8 U.S.C. 1182(a)(7)(A)(i)(I), and removed. He unlawfully reentered and was apprehended . A notice to reinstate prior order issued. During a USCIS Asylum Office interview, Posadas stated that a Honduran gang wanted to kill him and that his family mistreated him because they believed he was gay. USCIS determined that Posadas had established a reasonable fear of persecution. Because asylum is not available to aliens who face reinstatement of a prior order of removal, he applied for withholding of removal and protection under the Convention Against Torture. Concluding that Posadas’s credibility was suspect, the IJ denied his applications The Third Circuit denied review after the BIA dismissed an appeal, finding that unreported rapes did not constitute past persecution and that Posadas had failed to show clear probability that he would be persecuted because of his homosexuality. The proposed social group of “‘young Honduran men who have resisted gang recruitment’” is not a particular social group under the statute and Posadas did not demonstrate the required nexus between the feared harm and his status within that group. Any fear of harm was speculative and Posadas did not establish government acquiescence in any torture. View "Gonzalez-Posadas v. Att'y Gen. of United States" on Justia Law