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

Petitioner, a citizen of Peru, entered the U.S., undocumented, in 2005. In 2007, he was arrested for driving while intoxicated; he was unlicensed. In removal proceedings, petitioner conceded removablity and, after being transferred from New Jersey to Louisiana, obtained a change of venue, retained new counsel and filed a motion to withdraw pleadings and a motion for an evidentiary hearing. The IJ found that petitioner's admission waived issues raised in his motions and ordered removal. The BIA dismissed, finding that: petitioner failed to establish that his concession to removability should be suppressed; his rights were not violated when he was transferred; and that evidence of his alienage was not suppressible under the Fourth Amendment. The Third Circuit denied review, first rejecting an ineffective assistance of counsel claim. An alien does not have the right to be detained where he believes his ability to obtain representation and present evidence would be most effective. Even if the police violated a directive from the state attorney general by contacting ICE, petitioner's rights were not prejudiced. View "Calla-Collado v. Attorney Gen. of the United States" on Justia Law

In 2000, petitioner, a citizen of Honduras, was admitted to the U.S. as a lawful permanent resident. Four years later, in a Pennsylvania state court, he was found guilty of sexual assault, a second degree felony, and indecent assault, a second degree misdemeanor, and was sentenced to imprisonment of 46 months to eight years. He was found not guilty of rape. DHS charged him as removable under 8 U.S.C. 1227(a)(2)(A)(iii), because he had been convicted of a crime of violence under 18 U.S.C. 16(b), which is an aggravated felony as defined by 8 U.S.C. 1101(a)(43)(F). The BIA ordered removal. The Third Circuit denied an appeal. rejecting an argument that the crime was not a "crime of violence" because the mens rea necessary for conviction is recklessness. Sexual assault, as defined by the statute, raises a substantial risk that the perpetrator will intentionally use force in furtherance of the offense, and, therefore, constitutes a crime of violence under 16(b).View "Aguilar v. Attorney Gen.of the U.S." on Justia Law

Claudia illegally entered the U.S. in 1998 or 1999; her younger sister, Silvia illegally entered in 2005. About a year later, DHS charged each with removability under the Immigration and Nationality Act (INA), 8 U.S.C. 1182(a)(6)(A)(i). Both sisters conceded removability but applied for asylum, withholding of removal, and CAT protection, claiming that if they are returned to Guatemala, they will be persecuted by a violent gang the government allegedly cannot control. Silvia had been in witness protection for assisting the government's efforts against the gang and a cousin who was involved with the gang. An immigration judge rejected the petitions and the BIA affirmed. The Third Circuit denied Claudia's appeal, but remanded Silvia's case for a determination of whether the harm she might face rises to the level of persecution and whether she had been safely resettled in Mexico. Silvia shares a common, immutable characteristic with other civilian witnesses who have the shared experience of assisting law enforcement against violent gangs that threaten communities in Central America.View "Moreno Garcia v. Attorney Gen'l of U.S." on Justia Law

Petitioner sought to enter the U.S. with a stolen French passport in 2005, but was intercepted. Numerous proceedings ensued arising from Department of Homeland Security removal proceedings against him. Petitioner sought asylum, withholding of removal, and relief under the Convention Against Torture, claiming to fear returning to Guinea because he believes he will be persecuted on account of his political opinion attributable to his membership in the Rally of Guinean People Party. The Board of Immigration Appeals rejected his arguments. The Third Circuit vacated for reconsideration, noting a change in power in Guinea. The court did not address the merits. View "Nbaye v. Attorney Gen. of the U.S." on Justia Law

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.