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

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).

Petitioner, born in the Dominican Republic, lived in the U.S. from 1982 until 2009, when DHS charged him as removable under section 212(a)(6)(A)(i) of the Immigration and Nationality Act as an alien present without being admitted or paroled, and under sections 212(a)(2)(A)(i) and (a)(2)(B) as an alien convicted of an offense relating to a controlled substance and an alien convicted of two or more offenses involving crimes of moral turpitude. He admitted the factual allegations was found removable, but applied for asylum, withholding of removal, and Convention Against Torture protection. He claimed that, because of his assistance to the Drug Enforcement Agency, he would be targeted for violence if returned to the Dominican Republic. The immigration judge denied the applications. The BIA affirmed and 21 days later, petitioner was removed. The BIA denied a motion to reconsider, citing lack of jurisdiction resulting from removal (8 C.F.R.1003.2(d)).The Third Circuit reversed and remanded, holding that the post-departure bar is inconsistent with the Illegal Immigration Reform and Immigrant Responsibility Act, 8 U.S.C. 1229a(c)(6)(A), (7)(A), which grants an alien the right to file one motion to reconsider and one motion to reopen without any geographic limitation on that right.

Husband and wife, citizens of Mexico, came to the U.S. without valid documents in 1992 and 1996. They have three American-born children (ages five, ten, and eleven). In 1999, they traveled to Mexico to attend the funeral of husband's father. While there, wife, injured and pregnant, was restricted to bed rest and directed not to travel. They returned to the U.S. after 176 days. Religious worker visa applications were denied and the government instituted removal proceedings. In 2008, the couple applied for cancellation of removal under 8 U.S.C. 1229b(b)(1), claiming continuous physical presence for 10 years, absence of any criminal statutory bars, and exceptional and extremely unusual hardship on their children. An immigration judge denied the applications and granted voluntary departure. The BIA affirmed. The Third Circuit denied review. The couple failed to maintain continuous presence; intent to return is irrelevant--there is no scienter requirement and non-permanent resident aliens and permanent resident aliens seeking naturalization are not similarly situated groups for equal protection purposes. Neither the unratified American Convention on Human Rights nor the American Declaration of the Rights and Duties of Man is enforceable domestically.

Petitioner, a citizen of Ecuador, entered the U.S. illegally in 1991; she was granted voluntary departure in 1995, but did not depart until 1999. She illegally re-entered in 2000 and married a citizen. Using a different alien registration number, she applied for adjustment of status. She also sought to re-apply for admission under her original number. The Department began removal proceedings. The immigration found that her inadmissibility under 8 U.S.C. 1182(a)(9)(C)(i)(II) rendered her statutorily ineligible for adjustment of status and ordered removal to Ecuador. The BIA dismissed an appeal. The Third Circuit denied a petition for review. the BIA correctly concluded petitioner was inadmissible and removeable and that the immigration judge lacked jurisdiction to consider her "nunc pro tunc" request for consent to reapply for admission pursuant to sect. 1182.

Plaintiffs, lawful permanent residents taken into custody based on past convictions, (8 U.S.C. 1182) sought a declaratory judgment that continued detention of putative class members, without bond hearings, violated the Immigration and Nationality Act and the Due Process Clause. The District Court denied class certification and dismissed the class complaint, based on 8 U.S.C. 1252(f)(1), which precludes class actions that seek to "enjoin or restrain the operation of" several immigration statutes. The Third Circuit reversed. The word "restrain" does not encompass classwide declaratory relief.

The Immigration and Nationality Act, 8 U.S.C. 1231(b)(3)(B)(iv), precludes withholding of removal if there are reasonable grounds to believe that the alien is a danger to the security of the United States. In November 2003, the Government of Uzbekistan requested the extradition of the petitioners, asserting they participated in seeking the forced overthrow of the Republic and the establishment on its territory of a religious extremist Islamic fundamental state. Immigration judges concluded that the extradition request would be given no weight, coming from a government with a history of persecution and torture. On remand from the Third Circuit, the Board of Immigration Appeals found that petitioners are a danger to national security and ineligible for withholding of removal, but granted deferral of removal under the United Nations Convention Against Torture. The Third Circuit held that petitioners are entitled to withholding of removal as a matter of law; the determination that petitioners are a danger to national security was not supported by substantial evidence and there is no question that they will be persecuted and tortured on religious and political grounds if returned.

After pleading guilty to illegal reentry (8 U.S.C. 1326) the defendants challenged their sentences, claiming that their Fifth Amendment rights were violated as a result of the Department of Justice "fast-track" programs that allow a departure from sentencing guidelines in return for a guilty plea and waiver of right of appeal. Such programs have been implemented in several areas, but not in any district within the Third Circuit. The Third Circuit affirmed, holding that the program is rationally related to, among others, the goals of allocating prosecutorial resources and enforcing the immigration laws. The sentences imposed on the defendants were reasonable.