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

ICE officers entered the home Ramos shared with relatives with an administrative warrant for a sister, with no information about the identity or legal status of other occupants. During the next 15 hours, the agents detained and questioned the occupants, under circumstances that were allegedly extremely stressful. Ramos produced documents showing that he is a citizen of Guatemala; he did not produce any documentation that he was lawfully present in the U.S. The IJ denied a motion to suppress evidence found during the raid, although Ramos was detained without a warrant. Ramos asserted that the agents entered his home without valid consent and in violation of administrative regulations. He sought production of documents related to his search, seizure, and arrest, and ICE procedures. The IJ never ruled on that motion, but found Ramos removable. The BIA dismissed an appeal, declining to address a Fourth Amendment claim and finding that any regulatory violations did not alter the outcome. The Third Circuit vacated and remanded. The exclusionary rule may apply in cases where constitutional violations by immigration officers are widespread or evidence was obtained as a result of egregious violations of the Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence. View "Oliva-Ramos v. Atty Gen. of the United States" on Justia Law

Green, a citizen of Jamaica, entered the U.S. on a tourist visa in 2002. In 2006, his status was adjusted to that of a lawful permanent resident. Weeks later, he was arrested on charges of possession of a controlled dangerous substance with intent to distribute. He pled guilty. In 2008, Green was arrested again on charges of possession and distribution of a controlled dangerous substance and pled guilty. In 2010, DHS charged him as removable under 8 U.S.C. 1227(a)(2)(B)(i). Green applied for deferred removal under the Convention Against Torture, testifying that he feared that he would be tortured by the Shower Posse, a Jamaican drug gang. He had witnessed the 1998 killing of a police officer and an informant and had identified the shooters. His sister and his brother were subsequently killed; Green himself had been attacked in downtown Kingston. Although the IJ found Green’s testimony credible, she denied his application; he “failed to meet his burden to establish that the Shower Posse would be acting on behalf of the government of Jamaica or that the government of Jamaica would acquiesce in the actions of the Shower Posse,” as required under CAT. The BIA affirmed. The Third Circuit denied a petition for review. View "Green v. Atty Gen. of the United States" on Justia Law

Roye, a 58-year-old native of Jamaica, was admitted to the U.S. in 1984 as the spouse of a citizen. In 1992, he pled guilty to aggravated assault and endangering the welfare of a child by having sexual intercourse with his eight-month old daughter. The trial judge sentenced Roye to six to 20 years’ imprisonment but strongly recommended transfer into a psychiatric facility. Fourteen years later, DHS charged him as removable under 8 U.S.C. 1227(a)(2)(A)(iii). An Immigration Judge found that Roye granted for deferral of removal under the Convention Against Torture. The IJ emphasized testimony indicating “that mentally ill detainees and prisoners are often sexually and physically assaulted in the Jamaican prison system because of the nature of their mental illness” and that Roye will be homeless in Jamaica due to a lack of family ties. The BIA ordered immediate removal. The Third Circuit reversed, holding that the BIA must review the conclusion that the evidence demonstrates that Roye’s persecutors will physically and sexually abuse him in a manner that rises to the level of torture under the CAT, and decide whether Jamaican public officials will consent to or acquiesce in such abuse. View "Roye v. Atty Gen. of the United States" on Justia Law

Martinez, a native of Nicaragua, entered the U.S. without inspection in 1985. In 1989, he married a citizen, had a daughter, and began adjusting his status to lawful permanent resident. In 1990, Martinez pleaded guilty to sexual assault of his eight-year-old stepdaughter. In 1991, prior to sentencing, Martinez traveled to Nicaragua to complete the immigrant visa application process. The consulate approved his application. Martinez was admitted to the U.S.as a permanent resident the following day. He was later sentenced to four years in prison. Martinez was released on parole in 1992. The Department of Homeland Security initiated removal in 2009. Martinez argued that he was eligible for adjustment of status under former INA Section 212(c), which waived the bar against status adjustment for convicted aggravated felons who had at least seven years unrelinquished residence, at least five years as an LPR, and had not served more than five years in prison. The IJ found Martinez statutorily ineligible for relief. The BIA agreed that he had “never been lawfully admitted for permanent residence.” The Third Circuit denied review. A person accorded status as “lawfully admitted for permanent residence” upon physical entry, who did not substantively qualify for such status, is barred from relief. View "Martinez v. Atty Gen. of the U.S." on Justia Law

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