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

Eid, a Lebanese national, entered the U.S. as a non-immigrant under an H1-B visa issued based on a petition by Eid’s employer Pickett, a U.S. citizen. Eid married Pickett and they began living together. Pickett’s I-130 Petition to have Eid legally established as her husband for immigration purposes was granted in 1999. Eid filed an I-485 Application. During his 2001 INS interview for permanent residence, Eid withdrew his application. Pickett was allowed to withdraw her petition. Both gave sworn affidavits, indicating that they married to enable Eid to stay in the U.S., but the marriage was never consummated, and that they did not intend to live together as husband and wife. Their marriage was annulled. Removal proceedings began against Eid. In 2003, he married Packard, an American citizen, with whom he had a son in 2006. Packard filed an I-130 Petition in 2004. CIS determined the marriage to be genuine, but denied the petition. The BIA affirmed, based on 8 U.S.C. 1154(c), which requires denial of petitions of aliens who previously received or attempted to receive immigration benefits based on a marriage “entered into for the purpose of evading the immigration laws.” The district court ruled in favor of the government. The Third Circuit affirmed, rejecting an argument that, because Eid did not intend to break the law by his first marriage, section 1154(c) should not apply. View "Eid v. Thompson" on Justia Law

Orabi, an Egyptian citizen, was admitted to the U.S. in 1990. He became a lawful permanent resident without conditions in 1996. In 2010, he was convicted, in federal court, of conspiracy to commit fraud in connection with access devices, possession of counterfeit access devices, possession of counterfeit and forged checks, and aggravated identity theft, and was sentenced to 70 months in prison. Appeal to the Second Circuit is pending. DHS initiated removal proceedings under 8 U.S.C. 1227(a)(2)(A)(iii) based on conviction for an aggravated felony. Orabi notified DHS and the Immigration Court that he was appealing the conviction, and DHS moved to withdraw the removal charge. At a subsequent removal hearing, Orabi appeared pro se. Following an ambiguous exchange, removal charges were reinstated, although there is no documentary evidence that Orabi withdrew his appeal. Orabi was ordered removed. The BIA dismissed an appeal. The Third Circuit reversed. A conviction does not attain a sufficient degree of finality for immigration purposes until direct appellate review of the conviction has been exhausted or waived. View "Orabi v. Att'y Gen. of U.S." on Justia Law

Taveras, a citizen of the Dominican Republic, entered the U.S. as a lawful permanent resident in 1978, at age one year. He has left the country only at age five and at age 13. In 2009, he married a U.S. citizen. He is the father of two U.S. citizens. Several other relatives are U.S. citizens. The Department of Homeland Security (DHS) initiated removal in 2003 based upon his 1999 New York conviction for possession of crack cocaine, 8 U.S.C. 1227(a)(2)(B)(i). Taveras sought cancellation of removal under 8 U.S.C. 1229b(a), applicable to certain permanent residents who can demonstrate lengthy physical presence and substantial ties in the U.S., and have not committed an aggravated felony. The Immigration Judge terminated the proceedings. In 2010, DHS instituted a second removal proceeding, based on 2006 and 2008 convictions for petit larceny, under 8 U.S.C. 1227(a)(2)(A)(ii) (commission of two or more crimes involving moral turpitude). Taveras sought adjustment of status under 8 U.S.C. 1255(a), and waiver of inadmissibility under 8 U.S.C. 1182(h). The IJ granted the applications, reasoning that Taveras had received a “waiver” of the 1999 drug conviction such that he could no longer be found inadmissible for that offense or ineligible for waiver. The BIA found Taveras ineligible to adjust his status and receive a waiver, stating that waiver of inadmissibility or deportability waives only the ground charged, but not the underlying basis for removability. The Third Circuit denied Taveras’s petition, upholding the order of removal. View "Fernandez v. Att'y Gen. of the U.S." on Justia Law

Castillo, a citizen of Peru, entered the U.S. without inspection in 1985, became a temporary resident in 1988, and adjusted his status to lawful permanent residency in 1990. In 1994, he pleaded guilty to shoplifting in New Jersey and was ordered to pay a $200 fine. He had been convicted for receiving stolen property in 1989 and for contempt. Charged as removable, Castillo claimed that he was eligible for cancellation of removal under 8 U.S.C. 1229b(a), an alien who has “resided in the United States continuously for 7 years after having been admitted in any status.” Continuous residence ends “when the alien has committed an offense referred to in section 1182(a)(2) … that renders the alien . . . removable… under section 1227(a)(2).” Under 8 U.S.C. 1227(a)(2)(A)(ii), an alien is removable if convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct. The IJ denied relief and, following a remand, the BIA affirmed. The Third Circuit remanded for a second time, directing the BIA to consider whether Castillo was convicted of a crime under section 1227(a)(2)(A)(ii) and to provide an explicit justification for its answer. View "Castillo v. Att'y Gen. of the U.S." on Justia Law

Rojas, a 22-year old citizen of the Dominican Republic, entered the U.S. in 2003 as a lawful permanent resident. In 2009, Rojas pled guilty to possessing drug paraphernalia and was assessed a fine and court costs by the Pennsylvania state court. The Department of Homeland Security initiated removal proceedings for having violated a law “relating to a controlled substance (as defined in section 802 of Title 21),” 8 U.S.C. 1227(a)(2)(B)(i). Rojas argued that the offense that constitutes the basis of removal must involve a substance defined in section 802 of Title 21. The BIA ordered Rojas removed. The Third Circuit, en banc, remanded. In a removal proceeding under section 1227(a)(2)(B)(i), the government must show that the conviction for which it seeks to remove a foreign national involved or was related to a federally controlled substance. In this case, the Department failed to meet its burden. View "Rojas v. Att'y Gen. of the United States" on Justia Law

Rachak, a citizen of Morocco, was admitted to the U.S. as a lawful permanent resident in 2002. In 2006, he was charged with possession of marijuana and was placed on probation with supervision under Pennsylvania’s “Accelerated Rehabilitative Disposition” program. He did not comply with the conditions of the program and pled guilty to the charge. In 2011, Rachak pled guilty to charges of possession of cocaine and drug paraphernalia and was sentenced to two consecutive terms of 12 months of probation. The Department of Homeland Security charged Rachak with being removable under 8 U.S.C. 1227(a)(2)(B)(i). Rachak then filed a Pennsylvania Post Conviction Relief Act petition attacking his 2011 conviction. For a time, he obtained immigration continuance, but when Rachak’s attorney advised the Immigration Judge that his PCRA petition had been denied at the trial level and was on appeal, the IJ denied further continuances, ordered Rachak removed, and noted that his 2006 conduct rendered him ineligible for cancellation of removal under 8 U.S.C. 1229b(a) because he had not accrued seven years of continuous residence. The BIA affirmed. The Third Circuit rejected a petition for review. View "Rachak v. Att'y General of the United States" on Justia Law

Al-Sharif is a lawful U.S. permanent resident. He and others arranged to connect callers in Israel to callers in countries with no direct phone service to Israel, for a fee, by routing the calls through a New Jersy apartment. Al-Sharif rented the apartment and set up phone service using a false name and Social Security number. He later abandoned the apartment without leaving a forwarding address or paying the phone bill. As a result, in 1993 Al-Sharif pleaded guilty to conspiracy to commit wire fraud in violation of 18 U.S.C. 371, with a stipulation that his fraud caused loss to the victim of between $120,000 and $200,000. He was sentenced to six months’ home confinement and five years’ probation, and was ordered to pay $128,838 in restitution to the phone company. In 2004, Al-Sharif applied to become a naturalized citizen and truthfully disclosed his conviction. His application was denied by USCIS, which treated the conviction as for an “aggravated felony” under 8 U.S.C. 1101(a)(43)(M)(i), which precluded him, under 8 U.S.C. 1101(f)(8), from demonstrating “good moral character,” as required for naturalization under 8 U.S.C. 1427(a)(3). The district court granted summary judgment to USCIS. The Third Circuit affirmed. View "Al-Sharif v. U.S. Citizenship & Immigration Serv." on Justia Law

Verde, a native of Mexico, became a lawful permanent resident in 1991. After several DUI convictions, he was sentenced to more than two years in prison. In 1998, Verde was charged with removability as an “aggravated felon.” He appeared before an immigration judge with seven other Mexican nationals, was deported, returned, and was removed for a second time in 2000. In 2011 the removal order was reinstated and he was charged with illegal reentry, 8 U.S.C. 1326. The government dropped that charge and allowed him to plead guilty to use of a false Social Security number, 42 U.S.C. 408(a)(7)(B). He was sentenced to time served and supervised release. Verde filed a habeas corpus petition seeking to be reinstated as a permanent resident or to be granted cancellation of removal, arguing that his initial removal was a gross miscarriage of justice because of procedural shortcomings and that, because the Supreme Court has decided that a DUI conviction is not an aggravated felony, his conviction was not a valid basis for original removal. The district court dismissed Verde’s petition for lack of subject matter jurisdiction, reasoning that the REAL ID Act of 2005, 8 U.S.C. 1101, eliminated habeas relief in district courts for aliens challenging orders of removal. The Third Circuit dismissed for lack of jurisdiction. View "Verde-Rodriguez v. Att'y Gen of the United States" on Justia Law

Ashurov, a Tajikistani citizen, entered the U.S. under a visitor’s visa in 2007 and later sought a student visa. The application required submission of Form I-20, the school’s petition to sponsor a student. Ashurov stated that he planned to study English as a Second Language at the CMG School. CMG certified the form and Ashurov signed it without an oath, as required. The application was granted. In 2009 and 2010, Ashurov presented identical forms. In 2010, federal authorities determined that CMG was not providing students the required 18 hours of weekly in-class instruction. The school was closed and its designated official indicted. A jury convicted Ashurov under 18 U.S.C. 1546(a), which punishes a person who “knowingly makes under oath, or ... under penalty of perjury ... knowingly subscribes as true, any false statement with respect to a material fact in any ... document required by the immigration laws ... or knowingly presents any such ... document which contains any such false statement or which fails to contain any reasonable basis.” The district court granted an acquittal, finding that the oath requirement applied to both the “knowingly makes” and “knowingly presents” clauses and, alternatively, applying the rule of lenity. The Third Circuit affirmed, reasoning that the statute is “grievously ambiguous.” View "United States v. Ashurov" on Justia Law

The district court permanently enjoined enforcement of two Hazleton ordinances that attempt to prohibit employment of unauthorized aliens and preclude them from renting housing within the city. The Third Circuit affirmed in 2010. The Supreme Court granted certiorari and remanded for reconsideration in light of Chamber of Commerce v. Whiting, S. Ct. 1968 (2011). The Court later decided Arizona v. United States, 132 S. Ct.2492 (2012). Both address the extent to which federal immigration law preempts state laws pertaining to the treatment of unauthorized aliens. On remand, the Third Circuit again concluded that both the employment and housing provisions of the Hazleton ordinances are preempted by federal immigration law. The employment provisions in the ordinance are distinguishable from the Arizona law upheld in Whiting. The lack of minimal procedural protections in Hazleton’s ordinance conflicts with express congressional objective of minimizing undue burdens on, and harassment of, employers. The rental registration scheme serves no discernible purpose other than to register the immigration status of a subset of the city’s population. The Supreme Court’s reasoning in Whiting and Arizona does not undermine a conclusion that both the employment and housing provisions are preempted. View "Lozano v. City of Hazleton" on Justia Law