Recent Cases United States Court of Appeals for the 7th Circuit (October 2017-December 2017)

Baez-Sanchez v. Sessions, No. 16-3784 (October 6, 2017) Petition for
Review, Order of Bd. of Immigration Appeals Petition granted

Bd. erred in finding that IJ lacked authority to grant alien’s request
to waive alien’s inadmissibility (and thus to temporarily halt alien’s
removal) while alien seeks U visa from Department of Homeland Security,
where Bd.’s finding was based on conclusion that 8 CFR section
1003.10(b) did not include such power when describing powers and duties
of IJ. Ct. of Appeals found that such power was theoretically included
in 8 CFR section 1003.10(a), where that section grants IJ ability to
exercise Attorney General’s powers over immigration. Remand, though, was
required for Bd. to address Attorney General’s argument that: (1)
Attorney General himself has no authority to grant waivers of
inadmissibility to aliens seeking U visas; and (2) if Attorney General
does possess such authority, it could only be used with respect to
aliens who seek such relief prior to entering U.S.

In 2014, the Seventh Circuit held that the Attorney General has
authority under 8 U.S.C. 1182(d)(3)(A)(ii) to waive an alien’s
inadmissibility and to halt removal temporarily while the alien requests
a U visa. In Sanchez’s case, the Board of Immigration Appeals held that
IJs lack authority to grant such requests. The Seventh Circuit vacated
and remanded. Delegation from the Attorney General to immigration judges
is a matter of regulation; 8 C.F.R. 1003.10(a) states that
“[i]mmigration judges shall act as the Attorney General’s delegates in
the cases that come before them.” Disagreeing with the Third Circuit and
the Attorney General, the Seventh Circuit held that IJs may exercise the
Attorney General’s powers over immigration. On remand, the Board may
consider whether 6 U.S.C. 271(b) and 557 transfer to the Secretary of
Homeland Security all of the Attorney General’s discretionary powers
under the immigration laws and may also address whether the power to
grant a waiver of inadmissibility may be exercised only in favor of an
alien who has yet to enter the United States. The Board must address and
resolve those essential issues before the court can consider whether the
disposition lies within the scope of the agency’s discretion.

Garcia v. Sessions, No. 16-3234 (October 11, 2017) Petition for Review,
Order of Bd. of Immigration Appeals Petition denied

Bd. did not err in refusing to consider alien’s appeal of his asylum
request, under circumstances where: (1) alien had been subject to prior
removal order that had been entered in absentia; (2) alien had
re-entered U.S. and sought asylum after being apprehended by Border
Patrol. Ct. of Appeals, in overruling Delgado-Arteaga, 856 F.3d 1109,
found that alien had standing to seek asylum relief, even though he was
subject to reinstatement of his prior removal order. However, alien was
barred under 8 USC section 1231(a)(5) from obtaining asylum relief due
to fact that he was subject to reinstated order of removal at time he
sought said relief. Fact that general asylum statute under 8 USC section
1158(a) provided that regardless of his status, alien could apply for
asylum relief did not require different result.

Garcia, a Honduran national, came to the U.S. in 2003. He was ordered
removed in absentia and eventually departed in 2005. Garcia claims that
he encountered persecution upon his return to Honduras because of his
unpopular political views— his opposition to deforestation. He was
kidnapped and beaten. He returned to the U.S. in 2014 and, after being
apprehended, sought asylum. The Chicago Asylum Office issued a positive
reasonable fear determination and referred his case to an Immigration
Judge for withholding‐only proceedings. Garcia then filed an asylum
application. The IJ granted Garcia statutory withholding of removal,
stating that she lacked the authority to reconsider the reinstatement of
Garcia’s removal order (8 C.F.R. 208.31(e)). The Board of Immigration
Appeals rejected Garcia’s argument that he had a statutory right to seek
asylum under 8 U.S.C. 1158(a). The BIA reasoned that it lacked authority
to declare the controlling regulations in violation of the statute, but
also noted that “several federal courts have held a person in
reinstatement proceedings is not eligible for and cannot seek asylum.”
The Seventh Circuit dismissed an appeal because asylum is a form of
discretionary relief, so Garcia lacks standing to challenge the
regulations prohibiting him from applying for it.

Rodriguez-Contreras v. Sessions, No. 17-1335 (October 12, 2017) Petition
for Review, Order of Bd. of Immigration Appeals Petition granted

Bd. erred in finding that alien (citizen of Mexico) was required to be
removed under 8 USC sections 1227(a)(2)(A)(iii) and 1229b(a)(3) without
any possibility of discretionary relief from removal due to alien’s
prior Illinois conviction for felon in possession of weapon under 720
ILCS 5/24-1.1(a), which Bd. found to be qualifying “aggravated felony.”
Said conviction did not qualify as aggravated felony, where: (1) said
conviction could be established through possession of air gun; and (2)
air gun, or any other pneumatic weapon, was not “firearm” under federal
law. As such, remand was required for Bd. to consider whether removal
proceeding should be dismissed outright, as well as any claim for
discretionary relief from removal that would allow Bd. to consider fact
that alien’s conviction actually involved weapon that would qualify as
firearm.

After his conviction for a felony in Illinois, Rodriguez-Contreras, a
lawful U.S. permanent resident, was found in possession of a weapon and
was convicted under 720 ILCS 5/24–1.1(a). The Board of Immigration
Appeals concluded that he was removable as an alien convicted of an
“aggravated felony,” 8 U.S.C. 1101(a)(43); violation of 18 U.S.C.
922(g)(1), which bars anyone convicted of a felony from possessing a
firearm, is an aggravated felony. The Seventh Circuit remanded. The BIA
did not address whether the substantive elements of the state offense
match those of the federal law, which defines “firearm” as “any weapon …
designed to … expel a projectile by the action of an explosive.”
Compressed air is not an explosive, so pneumatic weapons are not
“firearms.” Illinois law defines a firearm as “any device … designed
to expel a projectile … by the action of an explosion, expansion of
gas or escape of gas.” Illinois law is broader than the federal law. The
court rejected an argument that the Illinois statute is “divisible” and
permits judges to determine which statutory provision was involved.
Illinois has a single crime of weapon possession by a felon, with
multiple ways of committing that crime. A definitional clause does not
create a separate crime. Federal law does not foreclose
Rodriguez-Contreras’ obtaining discretionary relief from removal. In
exercising discretion the BIA may consider that Rodriguez-Contreras
possessed a weapon that is subject to both state and federal
prohibitions.

Asectic v. Sessions, No. 17-1202 (October 17, 2017) Petition for Review,
Order of Bd. of Immigration Appeals Petition denied and dismissed in
part

Record contained sufficient evidence to support Bd.’s removal order
under 8 USC section 1227(a)(1)(A), where record showed that alien had
failed to disclose in his successful refugee application fact that he
had served in Bosnian Serbian army during Bosnian conflict. Alien had
admitted that he willfully misrepresented his military service, and such
misrepresentation was material where truthful statement would have led
to further investigation by immigration official. Fact that individual
hired by State Department to assist alien in his refugee application
advised alien not to report said military service on refugee application
did not require different result. Also, Ct. of Appeals lacked
jurisdiction to review Bd.’s denial of alien’s discretionary request to
waive his removability under 8 USC section 1227(a)(1)(H).

Acquaah v. Sessions, No. 16-3277 (November 6, 2017) Petition for Review.
Order of Bd. of Immigration Appeals Petition granted and denied in part

Ct. of Appeals remanded to Bd. alien’s application to remove conditions
on his permanent resident status based on his marriage to U.S. citizen,
where: (1) IJ ultimately found that Dept. of Homeland Security properly
terminated alien’s permanent resident status on ground that alien’s
application constituted marriage fraud; (2) IJ rejected alien’s
application for “good faith” waiver of removal based on fact that alien
had failed to disclose in prior testimony that he had remarried original
wife at time he was still married to U.S. citizen, and that he had
subsequently fathered child in U.S. by original wife; and (3) Bd. found
that alien was statutorily ineligible for fraud waiver under 8 USC
section 1227(a)(1)(H). Bd. erred when it found that absence of specific
fraud charge precluded availability of fraud waiver and should have
considered whether charge sustained against alien, i.e., termination of
conditional resident status on basis of his marriage to U.S. citizen,
was related to fraud. Also, if sustained charge is related to fraud, Bd.
needs to consider whether severe health issues of alien’s U.S. citizen
daughter, for whom he is only surviving parent, warrants exercise of
favorable discretion.

Acquaah, now age 63, came from Ghana to the U.S. on a visitor’s visa and
obtained conditional permanent resident status based on his marriage to
a U.S. citizen. His application to remove residency conditions began
proceedings that have spanned more than 25 years and included a charge
that the marriage was entered into for the sole purpose of procuring
entry as an immigrant. While those proceedings were pending, his first
marriage ended, he remarried a U.S. citizen, and the two had a daughter.
He obtained permanent residency under a different name on the basis of
that second marriage. After discovery that he had used a new name,
Acquaah was charged as statutorily deportable, 8 U.S.C.
1182(a)(6)(C)(i), and ineligible for a fraud waiver. The Seventh Circuit
remanded. At his final hearing, Acquaah faced two charges: a 1992 charge
of deportability based on termination of his permanent resident status
and a later charge that he was deportable as an alien who by fraud or
willful misrepresentation sought to procure immigration. The IJ found
only the charge relating to the termination of conditional residency,
sustained. The Board treated the specific statutory charge that the
government decided to lodge and prove as dispositive of whether the
waiver is available, but should have considered whether the charge
sustained against Acquaah is related to fraud.

Taylor v. McCament, No. 17-1943 (November 17, 2017) N.D. Ill., E. Div.
Affirmed

Dist. Ct. did not err in dismissing for lack of standing
plaintiff-alien’s claim under Administrative Procedure Act seeking order
to compel U.S. Citizenship and Immigration Services (USCIS) to
immediately issue 80,000 U-visas to those, like plaintiff, who were
placed on waiting list for said visas. Record showed that relevant
agencies failed to timely create regulations to enable individuals to
apply for U-visas, which, in turn helped to cause instant backlog of
U-visa petitions. However, plaintiff lacked standing to seek requested
relief in instant case since: (1) Victims Protection Act limits number
of U-visas that may be issued each fiscal year to 10,000; and (2) even
if Dist. Ct. ordered USCIS to issue 80,000 U-visas, USCIS could not do
so because of 10,000 U-visa statutory cap.

Taylor, a citizen of Ireland, entered the U.S. in 2000 on a visitor’s
visa. In 2008, Taylor was the victim of perjury, a qualifying crime
under the Victims Protection Act., 8 U.S.C. 1101(a)(15)(U), which
created the non-immigrant U-Visa program. The Act became law in 2000,
but no regulations were issued for seven years. The issuance of U-Visas
in large numbers began in 2009. The FBI certified that Taylor had
provided the necessary assistance with the prosecution of the crime,
Taylor applied for a U-visa in 2014. U.S Citizenship and Immigration
Services (USCIS) determined that Taylor was eligible, but placed him on
a waiting list because the statute prohibits the issuance of more than
10,000 U-visas per year. USCIS granted Taylor discretionary relief that
defers removal and confers employment authorization benefits. Taylor
filed suit, alleging that USCIS’s delay in promulgating regulations
caused the backlog and asked the court to compel USCIS to immediately
issue 80,000 U-visas to those on the waiting list. The court determined
that Taylor lacked standing and dismissed his complaint. The Seventh
Circuit affirmed. The agency lacks the statutory authority to give the
relief sought. The U-visa limit was reached in 2016 and 2017. Taylor
lacks constitutional standing; a court cannot review his claims at all,
nor determine whether there was an unreasonable delay or a
non-discretionary duty under the APA to compel USCIS to issue U-visas.

Rodriguez v. Sessions, No. 17-1568 (November 22, 2017) Petition for
Review, Order of Bd. of Immigration Appeals Petition denied

Bd. did not err in affirming IJ order that found that alien (native of
Mexico) was statutorily ineligible to seek cancellation of her removal,
where alien had been convicted of violating order of protection under
Wisconsin law. Bd. could properly find that said conviction precluded
alien from seeking cancellation of removal relief under 8 USC section
1227(a)(2)(E)(ii), where record showed that: (1) alien had been enjoined
under protection order; (2) at least one part of said order involved
protection against credible threat of violence, where state court
directed alien to refrain from acts of domestic abuse; and (3) alien
pleaded no contest to having knowingly violated domestic abuse order by
remaining on premises at issue in order. Fact that alien may not have
acted violently by remaining on premises was irrelevant.

Rodriguez entered the U.S. without inspection in 1999. In 2000, her
boyfriend obtained a temporary restraining order against her, claiming
that he feared for his safety after episodes of domestic violence.
Rodriguez later testified that because she had nowhere else to go, and
because she had small children and all her belongings in their shared
apartment, she did not leave. Rodriguez pleaded no contest to knowingly
violating a TRO and to misdemeanor bail jumping. Rodriguez sought
cancellation of her removal as an alien continuously present in the U.S.
for 10 years, 8 U.S.C. 1229b(b)(1)(A) and “a person of good moral
character” during that time, indicating that removal would cause an
“exceptional and extremely unusual hardship” to her five dependent
children (including a cancer survivor) and that she had not been
convicted of certain enumerated offenses, including violation of a
protection order. The IJ decided that Rodriguez’s conviction was
determinative, reasoning that Wisconsin law requires a judge to consider
the danger posed to a victim and any pattern of abusive conduct by the
perpetrator, so a misdemeanor conviction for violating a TRO is
“categorically a removable offense.” The BIA and Seventh Circuit
rejected her appeals. It does not matter that Rodriguez may not have
acted violently by remaining on the premises; her violation of the
avoidance-of-residence provision is enough.

Calderon-Ramirez v. McCament, No. 16-4220 (December 5, 2017) N.D. Ill.,
E. Div. Affirmed

Dist. Ct. did not err in granting defendants’ motion to dismiss
plaintiff-alien’s petition for writ of mandamus requesting that Dist.
Ct. compel defendants to immediately adjudicate his pending U-visa
application under circumstances where said application had been pending
for approximately 1.5 years. Although plaintiff has right to
adjudication regarding his application for both U-visa waiting list and
for U-visa itself, plaintiff was not entitled to mandamus relief, since
plaintiff failed to set forth any facts that would differentiate himself
from other petitioners filing ahead of him whose applications had also
not been adjudicated. Moreover, plaintiff was not entitled to similar
relief under Administrative Procedure Act since instant 1.5 year delay
was not unreasonable given 150,000 increase in pending U-visa
applications.

The Victims of Trafficking and Violence Protection Act of 2000, 8 U.S.C.
1101(a)(15)(U) created a new nonimmigrant visa classification that
permits immigrants who are victims of serious crimes and who assist law
enforcement to apply for and receive a nonimmigrant visa called a
U-visa. There is a statutory cap of 10,000 U-visas each fiscal year.
Since 2009, the U-Visa backlog has increased from 21,138 to 177,340
pending applications. Calderon-Ramirez, a citizen of Guatemala, entered
the U.S. in 2002 and was the victim of an attack in 2014. He filed a
petition for U Nonimmigrant Status in February 2015 and is waiting to be
evaluated for the waiting list. In 2016, he sought a writ of mandamus,
to compel Homeland Security to adjudicate his petition. The Seventh
Circuit affirmed the dismissal of his suit. Ramirez did not set forth
any facts that differentiate himself from other petitioners waiting
ahead of him for adjudication. While there are instances when the
government can and will expedite a petition, Ramirez failed to present a
situation appropriate to warrant such an action. The court stated that
the wait Ramirez faces is not unreasonable.

Matushkina v. Nielsen, No. 17-1336 (December 7, 2017) N.D. Ill., E. Div.
Affirmed

Dist. Ct. did not err in dismissing plaintiffs-aliens’ action under
Administrative Procedure Act that challenged denial of one plaintiff’s
2015 immigration visa application that, in turn, was based on 2009
finding by U.S. Customs and Border Protection that said plaintiff was
inadmissible because she had attempted to enter U.S. on fraudulent
basis. While Dist. Ct. found that plaintiffs lacked standing to
challenge 2009 determination as it related to 2015 denial of plaintiff’s
immigration visa, Ct. of Appeals found that, although plaintiff had
standing to file instant claim, dismissal on the merits was appropriate,
since: (1) instant case constituted indirect challenge to visa denial
that was not subject to judicial review under Bruno, 197 F.3d 1153; and
(2) review of 2009 determination that plaintiff had committed fraud when
attempting to enter U.S. would constitute improper full-blown review of
merits of said determination, especially where stated basis for 2009
decision was bona fide and facially legitimate

This entry was posted in 7th Circuit, 7th Circuit Cases- Aliens, Administrative Procedure Act, Asylum, Cancellation of Removal for Non-Lawful Permanent Residents, I-751 petition, Motion to Reopen, remove residency conditions, U nonimmigrant status, U-Visa, Uncategorized, Victims of Trafficking and Violence Protection Act, violating order of protection, writ of mandamus. Bookmark the permalink.

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