Immigration Law News - U.S. Eleventh Circuit
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Rarely do you see judges use harsh language towards each other in opinions. You'll see phrases like "respectfully dissent," along with a lot of deferential disagreement, but rarely will you see descriptors like, "astonishing," "outrageous," and "totally unfounded" tossed back-and-forth to describe each other's conclusions.

But that's exactly what we have here, in an otherwise unremarkable sentencing case involving an undocumented immigrant who made an illegal reentry after being deported for a domestic violence conviction. Senior Judge Peter Fay and Obama-appointee Judge Beverly Martin exchanged verbal jabs after Judge Martin, in dissent, accused the circuit court of only deferring to state courts' interpretations of law when it favored stiffer sentences.

No Changed Conditions, No Reopening of Motion in Asylum Case

The Eleventh Circuit has denied a petition from Xia Chen to review the denial of her motion to reopen and to stay her removal from the United States.

Chen, a citizen and native of China, alleges that in accordance with federal removal proceedings, her application should be re-reviewed based on a change in country conditions. The Eleventh Circuit felt otherwise.

Chen had initially entered the United States in 2001, without a valid entry document. But she gave several reasons for an asylum claim.

11th Cir: Fraudulent Marriage Barred by Statute of Limitations

Last week, the Eleventh Circuit ruled that a marriage fraud prosecution was actually barred by the 5-year statute of limitation, and reversed the district court’s judgment that it was not.

In 2009, the United States Immigration and Customs Enforcement (ICE) received an “Application to Register Permanent Residence or Adjust Status” and an “Application for Employment Authorization” from an Argentinian citizen, Marino, who had no legal status in the United States and had an expired nonimmigrant visa. She claimed, in the application, that she was married to a U.S. citizen, Rojas, since 2007. A copy of the marriage license was submitted, as well.

Florida Battery a Violent Crime for Immigration Sentencing

The Eleventh Circuit ruled that a district court judge did not err in sentencing a defendant by applying the modified categorical approach in determining his prior crime committed was violent. By finding his crime violent, the court upheld the district court using a higher sentencing guideline under the federal statutory scheme for an illegal reentry of a deported alien.

Pedro Diaz-Calderone was sentenced to 48 months imprisonment according to the guidelines, but he argues that the guidelines should have been much lower. He argued that the crime set out by the Florida statute can be committed in a non-violent way, so his prior crime should not be considered violent either.

They may be the Department of Labor, but they have no authority over H-2B labor. Temporary foreign workers are governed by the H-2A (agricultural) and H-2B (non-agricultural) programs. While both programs were originally administered by the Attorney General, the authority was later transferred to the Department of Homeland Security. In 1986, Congress split the agricultural workers into the separate H2-A program and granted the DOL rulemaking authority over those workers alone.

Simple enough, right? DHS governs H-2B, DOL governs H-2A.

Except, it apparently wasn’t that simple for the DOL, which issued rules for the H-2B program in 2011. The 11th Circuit today called that rule-making program ultra vires, which in the arena of administrative law, is fightin’ words.

One of the many provisions of the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 removed federal courts' jurisdiction to hear lawsuits brought "by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien."

Julien Belleri is a citizen. Or maybe he isn't. They still haven't figured it out yet. You see, until 1994, he lived with both of his parents in Columbia and the United States.

In 1994, his parents signed a "Conciliation Agreement" which in practice was a written custody arrangement that provided for shared custody, though his primary residence would be with his father. The document refers to his parents as "spouses", though it is apparently unclear whether the document amounts to legal separation under Columbian law.

Xiu Ying Wu illegally entered the United States on August 2, 2008. A mere 18 days later, she was served with notice to appear. That's impressively efficient, isn't it?

She asked for asylum and withholding of removal because of alleged persecution by family-planning officials in the Fujian Province. She had apparently been illegally cohabitating with her boyfriend, who accidentally impregnated her. The officials' response, according to Wu, was to perform a forced abortion. They also got her fired from her job and fined both her and the father of the unborn child.

Manual Cano entered the United States in 1990 as a nonimmigrant. Nine years later, his status was updated to that of a lawful resident. A few years after that, he violently resisted a lawful arrest.

In 2011, due to that incident and a 2010 act that also involved moral turpitude, the Department of Homeland Security (DHS) notified him that he was set for deportation under § 1227(a)(2)(A)(ii) as an alien convicted of two or more crimes involving moral turpitude. He contests the classification of his resisting arrest conviction as a crime involving moral turpitude.

Ask Not for Whom the Filing Period Tolls: It Tolls for Thee

An alien may only file one motion to reopen, and must do so no later than 90 days after the final order of removal. The Board of Immigration Appeals (BIA) takes that restriction pretty seriously.

Technically, there's an exception to the one-and-done filing rule: The time and number limitations on motions to reopen do not apply if the motion is based upon changed country conditions. To qualify, the alien must demonstrate that conditions within the relevant country have changed.

A change in personal circumstances alone is not enough to allow an otherwise untimely and successive motion to reopen, as today's Eleventh Circuit petitioner learned.

Alabama Asks for En Banc Review of HB 56 Ruling

In Chicago, teachers are staying away from school. In Alabama, the governor wants students to stay away.

Alabama Governor Robert Bentley announced this week that the state has filed petitions requesting en banc review of the Eleventh Circuit Court of Appeals' decisions on the Alabama immigration law, WSFA reports. The state claims that court shouldn't have nixed provisions that addressed contracting with illegal immigrants, harboring undocumented immigrants, and verifying school children's immigration statuses.