U.S. Seventh Circuit - The FindLaw 7th Circuit Court of Appeals Opinion Summaries Blog

Recent Immigration Law Decisions

A Honduran immigrant with HIV has been given a second shot at escaping deportation, after a divided Seventh Circuit remanded his deportation case for reconsideration last Thursday -- and issued a harsh critique of the immigration judge who heard it, saying she "made a hash" of the record.

Rigoberto Velasquez-Banegas immigrated to America, without authorization, in 2005. In 2014, the government sought to deport him. But Velasquez-Banegas argued he would face severe persecution in his native Honduras, where his HIV status would be taken as a proxy for his homosexuality, exposing him to homophobic threats and violence. It was an argument, the Seventh ruled, that deserves another look.

Indiana governor and Donald Trump running mate Mike Pence did well for himself in this week's vice presidential debate, if pundits and flash polls are to be believed. But his debate night triumph came on the heels of a stinging legal defeat, as the Seventh Circuit upheld an injunction against his Syrian refugee ban. Pence instituted the ban last year, after the terrorist attack in Paris, directing state agencies to stop funding the resettlement of Syrian refugees.

The Seventh Circuit wasn't having it. On Monday, the Seventh shut down Pence's ban, in a six-page tongue lashing that described the governor's logic as unfounded and based on "nightmare speculation." The ruling came shortly after last month's oral arguments during which Seventh Circuit Judge Richard Posner could barely contain his withering disdain for the state's position. Scratch that. He couldn't contain his distain at all, declaring at one point "Honestly. You are so out of it."

You can marry for love, you can marry for money, you can marry as part of a bet. But if you marry for a green card, your marriage won't count for immigration and naturalization purposes. And if you're caught marrying in order to evade U.S. immigration laws, you're banned from ever getting a visa or green card, even if you enter into a later, legitimate marriage with a U.S. citizen.

And that's just what happened to attempted-immigrant Mohit Sehgal, who got caught paying for a sham marriage only to later enter into a legitimate relationship with another American citizen.

Spirit of AC21 Act Should Be Followed, Rules 2nd Cir.

In an immigration employment decision that could have far reaching impacts, the Court of Appeals for the Second Circuit ruled that the legislative attempts to hasten H-1B "portability" for immigrants continues to be stymied by bureaucracy even 15 years after passing the American Competitiveness in the 21st Century Act.

According to the Second Circuit's ruling, leaving one's immigration status squarely in the hands of a disinterested employer is inimical to the act's purpose.

Non-citizens have a right to bear arms, even if they are in the country illegally, the Seventh Circuit ruled late in August. The ruling overturns a district court finding that the Second Amendment doesn't protect unauthorized aliens. In so holding, the Seventh created a split with the Fourth, Fifth, and Eighth Circuits, all of which have ruled otherwise.

But, there's a catch. While the right to bear arms extends to unauthorized non-citizens in the U.S., the Second Amendment also allows for limits. That includes a federal law banning unauthorized immigrants and nonimmigrant visa holders from possessing firearms, the court concluded.

7th Cir. Actually Grants an Immigration Appeal Petition

It's almost as a rare day when a federal circuit court grants review of a case from the Board of Immigration Appeals as it is when a federal circuit court grants a habeas petition. Today turned out to be Ashraf Habib's lucky day.

The government wanted Habib deported for misrepresenting the fact of his marital status in Pakistan in order to gain U.S. residency. The Seventh Circuit concluded that ineffective assistance of counsel led to Habib's current predicament and granted his petition for review.

A Mongolian business man will get a second chance at asylum after the Seventh Circuit found that his credibility was inappropriately denied based on poorly conducted airport interviews. Gonchigsharav Nadmid had arrived in the United States in 2009, seeking asylum from alleged corruption and abuse by Mongolian politicians.

An immigration judge found Nadmid to lack credibility, however, based largely on airport interviews conducted on his arrival -- and in Russian. Since those interviews revealed a significant language barrier, the Seventh Circuit held, the immigration judge was wrong to rely on them to discount Nadmid's credibility.

7th Cir. Reopens One-Child Appeal Based on Changed Conditions

Ji Cheng Ni has been in the U.S. since 2001, despite the fact that an Immigration Judge ordered him removed in 2003. Ni has two children, and argues that he should get a second shot at removal proceedings based on China’s one-child policy.

Last week, the Seventh Circuit Court of Appeals agreed.

Generalizations Aren't Enough: Asylum Applicants Need Specifics

Xing Zheng, a native of Fuzhou City in the Fujian Province of China, arrived in the U.S. in 1991 and filed an asylum application in 1992. The application was denied. In 1998, the Immigration and Naturalization Service charged him with removal.

Zheng has managed to remain in the U.S. for more than two decades while asserting various grounds for asylum, all of which were rejected. His most recent motion to reopen, filed in 2011, focused on the argument that he would be persecuted in China for his Christian beliefs. (This was a new argument based on his 2010 conversion while in immigration detention).

Court Says Competing Immigration Actions Can Coexist

Trinidad Klene applied for citizenship. The U.S. Citizenship and Immigration Services denied the application after concluding that Klene's marriage to a U.S. citizen had been fraudulent.

Klene asked a district court for relief under 8 U.S.C. §1421(c), which allows a judge to make an independent decision about an alien's entitlement to be naturalized. Later, CIS opened removal proceedings. Once the administrative removal proceedings were under way, the agency asked the district court to dismiss Klene's suit.

So what's a district court to do in this situation? The Seventh Circuit says that both cases can move forward.