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

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

The H-2B visa program allows U.S. employers to seek admission of foreign workers to perform temporary unskilled non-agricultural work by demonstrating that the employment of foreign workers will not adversely affect the wages and working conditions of U.S. workers. 8 U.S.C. 1101(a)(15)(H)(ii), 1182 (a)(5)(A)(i)(I)-(II). The employer must obtain certification from the Department of Labor (DOL) that: qualified workers are not available at the “prevailing wage” in the U.S. to perform the employment in question, and the aliens’ employment will not adversely affect wages and working conditions of similarly employed U.S. workers. DOL has often changed its method for calculating prevailing wages without giving notice or an opportunity to comment and without explanation. Opponents challenged 20 C.F.R. 655.10(f) and the 2009 Wage Guidance, which authorized use of privately-funded surveys to set the prevailing wage for certain occupations. A district court ruled in favor of the opponents. Following notice and comment, DOL announced the 2011 Wage Rule, but has continued to use the 2009 Guidance, having postponed the 2011 Rule’s effective date because it was subject to congressional appropriations riders precluding its implementation. The district court dismissed a challenge. The Third Circuit reversed, holding that the case was ripe and that the 2009 Guidance was arbitrary and violated the APA. View "Comite de Apoyo a los Trabajad v. Perez" on Justia Law

Guzman, a 38-year-old citizen of the Dominican Republic, was admitted to the U.S. as a lawful permanent resident in 1994 and has continually resided here. About a year after his admission, he pled guilty to a New York charge of Criminal Possession of a Controlled Substance and was sentenced to probation. In 2005, he again pled guilty to Criminal Possession of a Controlled Substance and was sentenced to time served. DHS took custody of Guzman and served him with notice of removal proceedings in 2012, based on his 2005 conviction (8 U.S.C. 237(a)(2)(B)(i)). Although the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, changed the law, the same basis for removal appeared pre-IIRIRA. The government argued that Guzman was ineligible for cancellation of removal under the stop-time rule, which stopped his accrual of the requisite seven years’ presence at his 1995 drug offense. Guzman argued that the IIRIRA stop-time rule would have an impermissibly retroactive effect. The IJ applied the rule. The BIA and Third Circuit affirmed, rejecting an argument that the loss of opportunity to delay deportation proceedings created a “new disability.” Guzman was deportable in 1995 with no avenue for relief, as he is deportable now. View "Guzman v. Att'y Gen. of U.S." on Justia Law

Mayorga, a native of El Salvador, entered the U.S. as a teenager in 1988 because of the then on-going civil war in El Salvador. He applied for asylum in 1995, and has had work authorization since then. He married a U.S. citizen and has five children under the age of 15, all U.S. citizens. In 2010, Mayorga pled guilty to engaging in the unlicensed business of firearms dealing, 18 U.S.C. 922(a)(1)(A) and (a)(2), and was sentenced to 46 months in prison. When he was released, the Department of Homeland Security served Mayorga with notice of removal proceedings, alleging two grounds: under 8 U.S.C. 1182 (a)(6)(A)(i), as an alien present in the U.S. without having been admitted or paroled, and having been convicted of a crime involving moral turpitude (CIMT) under section 212(a)(2)(A)(i)(I). At his hearing Mayorga contested his removability for having been convicted of a CIMT and applied for cancellation of removal, voluntary departure, asylum, withholding of removal, and withholding of removal under the Convention Against Torture (CAT). The IJ denied each application, reasoning that if Mayorga’s crime was not categorically a crime involving moral turpitude, he would likely be ineligible for cancellation of removal under the “person of good moral character” requirement, 8 U.S.C. 1229b(b)(1)(B). The BIA upheld the decision. The Third Circuit reversed, holding that Mayorga would suffer a serious adverse consequence if his crime were found to be a categorical CIMT, and that his challenge was therefore justiciable. Mayorga’s crime was not categorically a CIMT.View "Mayorga v. Att'y Gen. of the U.S." on Justia Law

In 2011 Cadapan, a citizen of the Philippines and a lawful permanent U.S. resident, was convicted of indecent assault with a person less than 13 years of age, indecent assault without consent, corruption of minors, and was sentenced to a term of imprisonment not less than three months nor more than 23 months and supervised probation for 36 months, In 2012, Cadapan was granted parole and was transferred to the custody of the Department of Homeland Security, which charged him with removability under 8 U.S.C. 1227(a)(2)(A)(iii), as an alien who, after admission, was convicted of an aggravated felony as defined in 8 U.S.C. 1101(a)(43)(A) and with removability under 8 U.S.C. 1227(a)(2)(E)(i), as an alien convicted of a crime of child abuse. He argued that the Pennsylvania statute for indecent assault encompassed conduct that could not be considered sexual abuse of a minor under the federal statute. The Immigration Judge rejected this argument. The BIA dismissed Cadapan’s appeal. The Third Circuit dismissed and also rejected an argument that the statute did not apply because Cadapan had not been admitted to the U.S. as not having been raised below.View "Cadapan v. Att'y Gen. of U.S." on Justia Law

Mahn, a citizen of Liberia, entered the U.S. in 2000 as a refugee. Five years later, he adjusted his status to lawful permanent resident. In 2007-2008, Mahn pled guilty in Pennsylvania to theft by deception and forgery and to recklessly endangering another person, based on losing control of his car and hitting a building. In 2011, DHS charged that he was removable under 8 U.S.C. 1227(a)(2)(A)(ii) for having “been convicted of two crimes involving moral turpitude not arising out of a single scheme.” Mahn unsuccessfully moved to terminate removal proceedings. The IJ ordered Mahn removed to Liberia. The Board of Immigration Appeals affirmed, reasoning that Mahn’s reckless endangerment conviction constituted a CIMT because “the statute under which [he] was convicted defines recklessness as a conscious disregard of a substantial risk of such a nature that it amounts to a gross deviation from the standard of care of a reasonable person” and is “coupled with the requirement that the conduct place another person in danger of death or serious bodily injury.” The Third Circuit vacated and remanded. Applying the categorical approach, the least culpable conduct punishable under Pennsylvania’s reckless endangerment statute does not implicate moral turpitude. View "Mahn v. Att'y Gen. of the United States" on Justia Law

Hernandez, a 34-year-old Mexican citizen, entered the U.S. without inspection in 1998. In 2009, he pled guilty to simple assault and endangering the welfare of a child, stemming from striking his 10-year-old stepson. DHS issued a Notice to Appear, charging that Hernandez was removable as an alien convicted of a crime involving moral turpitude (CIMT), 8 U.S.C. 1182(a)(2)(A)(i)(I). Hernandez conceded removability as an alien present without being admitted or paroled, but denied removability as an alien convicted of a CIMT and sought cancellation of removal, claiming that his children, U.S. citizens, would experience exceptional and extremely unusual hardship upon his removal. The Immigration Judge concluded that the children would suffer hardship, but that Hernandez was removable. The IJ found that the assault conviction was not a CIMT, but that the conviction for child endangerment constituted a CIMT because the statute requires “awareness by the accused that his violation of his duty of care, protection and support, is practically certain to result in the endangerment to his children’s welfare.” The BIA affirmed. The Third Circuit granted a petition for review, finding that the least culpable conduct criminalized under Pennsylvania’s child endangerment statute does not implicate moral turpitude. View "Hernandez-Cruz v. Att'y Gen. of the U.S." on Justia Law

Syblis, a citizen of Jamaica, entered the U.S. in 2000 as a non-immigrant visitor. He remained beyond three months without seeking additional authorization. In 2004 he was charged with possession of marijuana. The charges were later amended and he was convicted of possession of drug paraphernalia. In 2008, in an unrelated incident, Syblis was convicted of possession of marijuana. In 2010, the Department of Homeland Security initiated removal proceedings against Syblis, under 8 U.S.C. 1227(a)(1)(B) for overstaying his visa authorization, and under 8 U.S.C. 1227(a)(2)(B)(i) for his paraphernalia and marijuana convictions. He contested his removability on the grounds that he was convicted of an offense relating to a controlled substance and renewed a previous application for an adjustment of status and requested a waiver of criminal inadmissibility grounds. The IJ concluded that both of Syblis's convictions related to "controlled substances" and found him ineligible for a waiver of criminal inadmissibility under 8 U.S.C. 1182(h). The BIA upheld the decision. The Third Circuit affirmed, holding that Syblis failed to meet his statutorily prescribed burden of demonstrating eligibility for relief from removal. View "Syblis v. Att'y Gen of the U.S/" on Justia Law

In 1984, Petitioner, a citizen of Colombia, was admitted to the U.S. at age 20 as a lawful permanent resident. He married a U.S. citizen and has a son, also a citizen. Until 2009, Petitioner lived without incident. In 2009, he was stopped at a checkpoint near North Hudson, New York, with two passengers in his car. Petitioner admitted that he was aware they were illegal aliens, that he had picked them on the U.S. side of the border, that he was to be paid $1,000 to drive them to Queens, and that he had performed such work twice before. Petitioner was charged with Bringing In and Harboring Aliens, 8 U.S.C.1324(a)(2)(B)(ii) and 18 U.S.C. 2, and Transporting Illegal Aliens, 8 U.S.C. 1324(a)(1)(A)(ii), (a)(1)(B)(i). Charged with removability under 8 U.S.C. 1227(a)(2)(A)(iii), based on conviction for an aggravated felony, Petitioner applied for adjustment of status under 8 U.S.C. 1255(a). The government conceded that an aggravated felony conviction does not, alone, render an alien ineligible for adjustment of status, but urged that conviction under 1324(a)(2)(B)(ii) rendered him inadmissible under 8 U.S.C. 182(a)(6)(E)(i), as “an alien who … knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or try to enter the United States in violation of law.” The IJ denied adjustment of status. The BIA affirmed. The Third Circuit reversed. Petitioner’s conduct did not constitute encouraging, inducing, assisting, abetting, or aiding another alien to enter the U.S. View "Parra-Rojas v. Att'y Gen. of the U.S." on Justia Law