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

Petitioner and his wife, citizens of Georgia, a former U.S.S.R. republic, entered the U.S. on visitor visas in 1999 and remained longer than authorized. In 2004, petitioner filed an affirmative application for asylum, withholding of removal, and protection under the Convention Against Torture, claiming that he had been persecuted for his political beliefs. Petitioner was thereafter placed in removal proceedings, where he renewed and updated his application for asylum. The Board of Immigration Appeals dismissed. The Third Circuit vacated and remanded. The adverse credibility determination was not supported by substantial evidence. Petitioner's due process rights were violated when the Immigration Judge "completely took over the cross-examination for government's counsel, and thereby ceased functioning as a neutral arbiter." View "Abulashvili v. Attorney Gen'l of U.S." on Justia Law

Petitioner, born in 1984, is a citizen of Honduras. He came to the U.S. in 2004 without being admitted. In Removal proceedings, petitioner sought asylum, withholding of removal, and relief under the Convention Against Torture, claiming that he fled Honduras because members of a criminal gang had threatened to kill him, that he filed police reports, but received no response, and that he was kidnapped by gang members and beaten before being freed by Guatemalan police. The Immigration Judge denied the applications although he found no reason to disbelieve the testimony. The Board of Immigration Appeals affirmed. The Third Circuit vacated. On remand, the BIA again concluded that petitioner failed to show that he had experienced past persecution or had a well-founded fear of future persecution on account of a classification that is protected under the INA. The Third Circuit remanded the asylum and withholding of removal applications, but denied the petition for review on the claim under the Convention Against Torture. The BIA's addition of the requirements of "social visibility" and "particularity" to its definition of "particular social group" is inconsistent with its prior decisions, and the BIA has not announced a "principled reason" for its adoption of those inconsistent requirements. The court acknowledged that there was no evidence that the gang knew of petitioner's political opinion and targeted him because of it and that evidence support the BIA finding that the Honduran government seeks to combat the gang problem and protect its citizens. View "Valdiviezo-Galdamez v. Attorney Gen. of the U.S." on Justia Law

Petitioner, a citizen of the Dominican Republic, was admitted in 1991 as a conditional permanent resident. Upon her return to the United States from a 2007 trip, she was charged with inadmissibility as an alien convicted of a crime of moral turpitude (8 U.S.C. 1182(a)(2)(A)(i)(I)), arising from a 1999 conviction for receiving stolen property, criminal conspiracy, and criminal solicitation. She sought cancellation of removal based upon seven years of continuous residence (8 U.S.C. 1229b(a)). The immigration judge applied the "stop-time rule," 8 U.S.C. 1229b(d)(1)under which any period of continuous physical presence in the U.S. is deemed to end when the alien has committed an offense referred to in section 1182(a)(2). The BIA upheld the decision, ruling that a conviction record showing August 18, 1998 as the incident date established that her criminal conduct occurred before seven years of continuous residency had elapsed. The Third Circuit denied review. The phrase "has committed" in section 1229b(d)(1) means the stop-time rule is triggered either by an alien's criminal conduct occurring on a particular date before the end of the seventh year of continuous residence, or conduct that runs up to the date when the seventh year of residency ends. View "Santos-Reyes v. Attorney Gen. of the U.S." on Justia Law

Petitioner, a citizen of Pakistan, entered the U.S. in 1999 as a legal permanent resident based on his 1996 marriage to a U.S. citizen. They divorced in 2000. In 2005, the Department of Homeland Security initiated removal proceedings, charging petitioner as removable under 8 U.S.C. 1227(a)(1)(A), for being inadmissible upon entry, and under 8 U.S.C. 1182(a)(6)(C)(i), as an alien who attempted to procure a visa through fraud. The IJ concluded the marriage was fraudulent. The BIA affirmed, reasoning that the limitations period in 8 U.S.C. 1256(a) did not apply to petitioner because he obtained LPR status through consular processing, not by adjustment of status. The Third Circuit denied review. There was substantial evidence that the marriage was fraudulent. View "Malik v. Atty Gen. of the U.S." on Justia Law

Petitioner, a citizen of India, entered the U.S. in 1995 on a B-1 visa. After her visa expired, she accrued more than one year of unlawful presence. An application for labor certification was approved in 1999. Her employer's Petition for Alien Worker that was granted in 2000. In 2001, petitioner applied to adjust her immigration status to lawful permanent resident under the Legal Immigration Family Equity Act, 8 U.S.C. 1255(i). While her application was pending, she was granted advanced parole, which warned that if she accrued more than 180 days of unlawful presence subsequent to April 1, 1997, and subsequent to applying for adjustment of status, and then departed the U.S., she could be found inadmissible. Petitioner nonetheless traveled outside the U.S. and used the advanced parole to be permitted to reenter in 2002. In 2004, the application for adjustment of status was denied because her travel outside of the country rendered her inadmissible for a period of 10 years under 8 U.S.C. 1182(a)(9)(B)(i)(II). In removal proceedings, an Immigration Judge denied the application and granted voluntary departure. The BIA affirmed. The Third Circuit rejected an appeal.

Petitioner, admitted in 1998 as a refugee from Belarus, where he had been threatened by anti-Semitism, became a lawful permanent resident in 2001. In 2007, he returned from a trip and found that he was subject to a warrant arising out of a wire fraud scheme. The government released him, but did not formally "admit" him; DHS purported to "parole" him into the country, pursuant to 8 U.S.C. 1182(d)(5)(A), for the purpose of prosecuting him. He pled guilty to aiding and abetting wire fraud (18 U.S.C. 2 and 1343). The stipulation stated that the loss amount attributable to defendant was more than $120,000, but less than $200,000. DHS initiated removal on the ground that conviction of a crime involving moral turpitude precludes admission, 8 U.S.C. 1182(a)(2)(A)(i)(I). The immigration judge ruled that the crime was not an aggravated felony, but that petitioner was an arriving alien and was removable on account of his conviction. The court cancelled removal after concluding that the balance of various factors weighed in his favor. The Board of Immigration Appeals reversed, holding that removal could not be cancelled under sect. 1229b and that petitioner was not eligible for asylum. The Third Circuit affirmed the BIA decision in all respects except with regard to Convention Against Torture claims and remanded.

Petitioner was detained for 1,072 days pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. 1226(c), which requires that any person who is removable from this country because he has committed a crime involving moral turpitude or a crime involving a controlled substance be taken into custody and does not provide for release on bond. Petitioner, a citizen of Senegal, apparently had a state conviction for possessing a controlled substance. The district court concluded that the detention was lawful. The Third Circuit construed the pro se petition as seeking habeas corpus and reversed. The statute authorizes only detention for a reasonable period of time, after which the Due Process Clause requires that the government establish that continued detention is necessary to further the purposes of the detention statute. Detention of petitioner for nearly three years without further inquiry into whether it was necessary to ensure his appearance at the removal proceedings or to prevent a risk of danger to the community, was unreasonable.

Petitioner, born in the Bahamas in 1981 and lawfully admitted into the U.S, as a permanent resident in 1999, was charged with possession of and intent to deliver marijuana and knowing and intentional possession of a controlled substance in 2005. The Immigration Judge terminated removal proceedings, finding that petitioner sustained only a conviction for possession of marijuana and was not removable under 8 U.S.C. 237(a)(2)(A)(iii) and that he was not removable under subsection (B)(i) because he possessed less than 30 grams of marijuana. On reconsideration, after attempting to determine the amount of marijuana at issue, the IJ issued an order of removal. The BIA dismissed what it characterized as an interlocutory appeal. The Third Circuit remanded, holding that petitioner intended to appeal the order. The agency must consider assertions that the IJ erred in finding that there was clear and convincing evidence that petitioner possessed more than 30 grams of marijuana and that the final order of removal is unenforceable because of his citizenship status.

Petitioner, a citizen of Guyana, entered the U.S. in 1994 on a six-month tourist visa and remained after that period. He obtained approved I-130 immediate relative and I-140 work petitions and applied for adjustment of status, but no visa numbers were available. After several continuances, the immigration judge refused any further continuance pending availability of a visa number and ordered deportation. The BIA dismissed an appeal, stating that the future availability of a visa number is speculative and insufficient to establish cause for a continuance). The Third Circuit vacated and remanded for consideration of factors established in a 2009 BIA decision (Hashmi) for use in evaluating whether to continue removal proceedings pending an adjustment of status application: DHS response to the motion; whether the underlying visa petition is prima facie approvable; respondent's statutory eligibility for adjustment of status; whether respondent's application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors. Factors relevant to determining the fourth criteria include, but are not limited to, the existence of family ties and length of residence in the United States, the hardship of traveling abroad, and respondent's immigration history.

Petitioner was born in Cape Verde in 1979 and admitted into the U.S. as a legal permanent resident in 1985, when his mother immigrated; she became a citizen in 1996. The Department of Homeland Security instituted removal proceedings in 2008 for an aggravated felony conviction. He sought to terminate proceedings pursuant to the Immigration and Nationality Act (8 U.S.C. 1432(a)(3)), contending that he derived citizenship through his mother, who was unwed when he was born and naturalized prior to his eighteenth birthday. The immigration judge ordered removal, reasoning that Congress repealed section 1432(a) by enacting the Child Citizenship Act of 2000, 114 Stat. 1631, effective prior to all relevant events. The Board of Immigration Appeals affirmed. The Third Circuit denied review. Petitioner was legitimated by a Cape Verde statute, making him ineligible for derivative citizenship pursuant to 8 U.S.C. 1432(a)(3).