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

Duran, a native of the Dominican Republic, was admitted to the U.S. as a legal permanent resident in 1981. He married in 1988 and fathered two children. In 1997 he applied for naturalization. He completed his examination under oath. When a final decision did not come in the mail, Duran made repeated calls to the agency, attempting to be scheduled to take the Oath. Nearly ten years later, he pled guilty to conspiracy to distribute and possess narcotics and possession with intent to distribute cocaine and was sentenced to 51 months’ imprisonment. The government instituted removal proceedings under 8 U.S.C. 1227(a)(2)(B)(i) and 8 U.S.C. §1227(a)(2)(A)(iii). Although he did not challenge the convictions, he argued that he was not removable because his 1997 naturalization application had been finalized. He also argued that he should not be removed because the government’s loss of his file precluded him from taking the Oath and thereby prevented his naturalization and citizenship. Meanwhile, the government denied his naturalization based on his 2008 convictions The Immigration Judge ordered him removed to the Dominican Republic. The BIA dismissed Duran’s appeal. The Third Circuit denied appeal. View "Duran-Pichardo v. Attorney Gen. of the U.S." on Justia Law

A citizen of India, Desai was admitted to the U.S. as a lawful permanent resident in 1980. He acquired convictions for: burglary and criminal mischief (1991), burglary and conspiracy to commit burglary (1992), burglary (1992), theft (1993), theft (1994), shoplifting (1997), possession of marijuana (2000), disorderly conduct (2001), and theft and possession of a controlled substance in the third degree (2002). In 2008, Desai was charged with removability based on his 1994 and 2002 convictions. He applied for relief under the Convention Against Torture, alleging that his HIV-positive status made him vulnerable to discrimination and persecution in India. A year after Desai’s removal, his 2002 conviction was vacated. After the 90-day window, 8 U.S.C. 1229a(c)(7)(C), Desai moved to reopen sua sponte. The BIA held that it lacked jurisdiction because the post-departure bar, 8 C.F.R. 1003.2(d), precludes a removed person from filing a motion to reopen. The Third Circuit denied appeal. While the court previously held the post-departure bar invalid to the extent it conflicted with the Illegal Immigration Reform and Immigrant Responsibility Act, 8 U.S.C. 1229a(c)(7), (granting aliens the right to file one motion to reopen under certain conditions), it can be invoked as a basis for refusing to reopen under 8 C.F.R. 1003.2(a).View "Desai v. Attorney Gen. of the U.S." on Justia Law

Father and son, citizens of Pakistan, were admitted to the U.S. as nonimmigrant visitors in 1990. After they overstayed their visas, the Immigration and Naturalization Service initiated removal proceedings. Father sought asylum, withholding of removal, and protection under the CAT, claiming that he was persecuted in Pakistan based on his membership in the Pakistan People’s Party. Son, a minor, was listed as a derivative beneficiary. In 2000, an Immigration Judge denied the applications because they presented no credible evidence of past persecution or fear of future persecution. The BIA affirmed in 2003, and the two did not petition for review. In 2010, seven and one-half years later, they filed with the BIA a motion for an emergency stay of removal and a motion to reopen their case. Before the BIA rules, they sought review by the Third Circuit, and, after the BIA denial, they again sought review. After concluding that it had jurisdiction despite the premature filing, the Third Circuit denied review. View "Khan v. Attorney Gen. of U.S." on Justia Law

From 1996 to 2001, while working as a licensed realtor, Mendoza helped borrowers obtain federally insured mortgages. He was charged with conspiring to fraudulently induce the Federal Housing Authority to insure mortgage loans, 18 U.S.C. 371 and 1001. Mendoza’s counsel, Cavanagh, explained that he could avoid prison by pleading guilty, but did not apprise Mendoza that, as an aggravated felony, his crime would lead to mandatory deportation to his home country, Ecuador, 8 U.S.C. 1227(a)(2)(A)(iii). Prior to sentencing Mendoza learned from his Presentence Investigation Report that his conviction might result in removal. The district court sentenced Mendoza to two years’ probation and ordered him to pay $100,000 in restitution. As a condition of his probation, Mendoza was required to cooperate with immigration officials. The government instituted removal proceedings. After completing his sentence, Mendoza moved, under 28 U.S.C. 2255, to vacate his sentence and withdraw his plea. The district court denied the motion. The Third Circuit affirmed. View "Mendoza v. United States" on Justia Law

Borrome, a citizen of the Dominican Republic, and, since 1996 a lawful permanent resident of the U.S. pled guilty in 2002 to violations of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301-399d, prohibitions on unlicensed wholesale distribution of prescription “drugs” in interstate commerce. He was sentenced him to four months’ imprisonment followed by four months’ home confinement. In 2010 he was served with a notice of removal and the IJ reasoned that because Borrome’s offense involved unauthorized distribution of a Schedule II controlled substance (Oxycontin ), it is an aggravated felony under 8 U.S.C. 1101(a)(43)(B) pursuant to the “hypothetical federal felony test,” so that Borrome was removable under 8 U.S.C. 1227(a)(2)(B)(i) as an alien convicted of violating any law “relating to a controlled substance.” The Board of Immigration Appeals affirmed. Borrome has been removed from the United States. The Seventh Circuit reversed, concluding that violation of the FDCA wholesale distribution provisions does not constitute an aggravated felony and that those laws are not laws relating to a controlled substance. View "Borrome v. Att'y Gen. of the U.S." on Justia Law

Nelson, a citizen of Jamaica, was admitted to the U.S. as a permanent resident in 1994. In 1999, he pleaded guilty to possession of 16 ounces of marijuana. In 2000, Nelson visited Canada for two days. Although his conviction rendered him inadmissible he was allowed to reenter. He did not leave the U.S. again. In 2008, Nelson was found guilty of attempted possession with intent to distribute marijuana. DHS charged him as removable because his 2008 convictions constituted aggravated felonies and controlled substances offenses under 8 U.S.C. 1227(a)(2)(A)(iii) and (B)(i). The Immigration Judge found Nelson removable, but withdrew the findings because the convictions were on appeal and not final. In 2009, DHS issued additional charges based on the 1999 conviction. After finding Nelson removable based on the 1999 conviction, the IJ denied cancellation, concluding that Nelson had not accrued the required seven years of continuous residence, because the 1999 offense triggered “stop-time” provisions of 8 U.S.C. 1229b(d)(1), and ended his continuous residence short of the seven-year statutory threshold. Nelson was not permitted to start a new period of continuous residence based on his 2009 reentry. The BIA found Nelson removable based on the 1999 conviction. The Third Circuit denied review. View "Nelson v. Att'y Gen. of the United States" on Justia Law

Singh, born in Jamaica, has been a lawful permanent resident of the U.S. since 1975, married a U.S. citizen and raised three children. In operating a construction firm that bid on public works projects as a Minority Business Enterprise, Singh accepted kickbacks for falsely certifying that his business was serving as a subcontractor on government projects when, in fact, another did the work. When the company filed for bankruptcy in 2005, the scheme came to light. Singh was charged with failing to disclose all of the company’s accounts receivable on the bankruptcy petition, 18 U.S.C. 152(3). Singh pled guilty and agreed to restitution in the amount of $54,418.08. He was sentenced to 10 months. DHS initiated removal proceedings, 8 U.S.C. 1227(a)(2)(A)(iii). The Immigration Judge entered an order of removal, which the BIA affirmed, finding that conviction under 152(3) categorically involves fraud and that the restitution order established that the offense caused loss to the trustee exceeding $10,000. The Third Circuit vacated, holding that the statute requires actual, not merely intended, loss. The court rejected an argument that 152(3) is a perjury offense that must meet the requirements for perjury-based aggravated felonies under 8 U.S.C 1101(a)(43)(S).View "Singh v. Atty Gen. of the United States" on Justia Law

Petitioner, a native of Panama and a citizen of Spain, entered the U.S. as a non-immigrant visitor in 1998. In 2000 he married a U.S. citizen. His status was adjusted to conditional lawful permanent resident. In 2004, petitioner and his wife appeared together at an interview in support of his I-751 petition to remove conditions on residence; petitioner affirmed, under oath, that he did not have children. After the two divorced, petitioner amended the birth certificates of children born to another woman during his marriage, to reflect that he was their father. In 2006, petitioner filed an N-400 Application for Naturalization listing the two as his children. USCIS determined that petitioner had provided false testimony during the 2004 interview and denied his petition on grounds that he lacked the requisite good moral character. In 2009 USCIS initiated removal. The district court ruled in favor of the government, noting uncontradicted evidence that petitioner, under penalty of perjury, gave false evidence in order to receive a benefit in an immigration proceeding. The Third Circuit affirmed, holding there was no material issue of fact. View "Gonzalez v. Sec'y of Dep't of Homeland Sec." on Justia Law

In 1998, petitioner, a citizen of Jamaica and a lawful permanent resident of the U.S., was convicted of conspiracy to possess and distribute more than 50 grams of "crack" cocaine, 21 U.S.C. 846 and sentenced to 168 months imprisonment, After his release from prison, U.S. Immigration and Customs Enforcement issued a warrant and took petitioner into custody. He has been incarcerated by ICE since March, 2008 without a bond hearing. The district court denied habeas corpus. The Third Circuit reversed. Under the pre-removal statute, 8 U.S.C. 1226(a), ICE can detain any alien pending a decision in removal proceedings and can release on bond any alien not otherwise ineligible for such release. Section 1226 provides for mandatory detention of aliens who are removable on account of commission of enumerated offenses, including aggravated felonies such as petitioner's. Once there is an order of removal, detention is governed by 8 U.S.C. 1231(a), under which ICE must remove the alien within 90 days. Evaluating the situation under section 1226, the court determined that petitioner had been detained for longer than "reasonable." View "Leslie v. Att'y Gen. of United States" on Justia Law

In 2000, petitioner, a 12-year-old citizen of Argentina, entered the U.S. under the visa waiver program, 8 U.S.C. 1189(a). In 2011, ICE agents, executing an arrest warrant for her brother, took petitioner into custody and scheduled removal without an appearance before an immigration judge, based on petitioner remaining for more than the 90 days permitted by the vwp. She argued that the removal order was invalid because she was a minor when she entered this country and could not waive any procedural rights and that she did not receive procedural protections to which she would have been entitled absent such a waiver. The Third Circuit denied her appeal, finding no prejudice resulting from enforcement of the allegedly-defective waiver. Petitioner would not have been allowed to enter without signing the waiver; if she had been of majority age and had knowingly and voluntarily had executed the waiver, she would not have been entitled to the procedural protections normally afforded to an alien prior to removal. View "Vera v. Attorney Gen. of the United States" on Justia Law