3rd Circuit Immigration Law News - U.S. Third Circuit
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This guy. How badly did he want to make headlines?

Late last month, President Barack Obama announced that he would use executive orders to push through certain immigration reforms. Republicans screeched. Congress bemoaned the trampling of their authority. States' attorneys general filed a lawsuit. Even a few members of the president's own party quietly questioned the move.

Even still, the most surprising voice has to be Judge Arthur Schwab of the U.S. District Court for the Western District of Pennsylvania, who has somehow found a way to rule on the constitutionality of Obama's actions mere weeks after they were announced.

Non-agricultural, unskilled, foreign workers may obtain visas to work in the U.S., if employers can prove that no U.S. workers will accept the work, under the H-2B visa program.

The history of the program is extensive and convoluted, but can be summarized; the Immigration and Nationality Act of 1952 ("INA") provided the framework for what is now the H-2B visa program. Responsibility for H-2B visa determinations changed departmental hands several times, and had ended up the responsibility of the Department of Homeland Security ("DHS").

Does Mandatory Detention Have an Expiration Date?

Under the Immigration and Nationality Act, immigration officials “shall take into custody any deportable alien who has committed various crimes” when the alien is released from detention for those crimes. Officials hold those aliens without any possibility of release while awaiting their removal proceedings. It’s known as mandatory detention.

So what qualifies as a release from detention? And do immigration officials have to wait at the jailhouse door for an alien’s release, or can they take their sweet time taking an offender into custody?

Anti-American Attitude Doesn't Warrant Asylum

Shawn Allison, a native and citizen of Jamaica, entered the U.S. without inspection in 1994. In 2011, the Department of Homeland Security charged him with removability as an alien present without being admitted or paroled. Allison conceded removability, but disputed his date of entry. The immigration judge found him removable as charged.

Allison filed an application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). While he admitted that he was never physically harmed in Jamaica, he claimed to fear returning “because the Jamaican police and local gangs are anti-American and would torture or physically injury him. He further asserted that he would be targeted as a deportee from America.”

Is anyone surprised that Allison failed to persuade the courts with that argument?

Delayed Evidence Creates Credibility Problem

Gen Lin is a native and citizen of China. He entered the United States illegally in 2004. In 2008, he was served with a Notice to Appear before an Immigration Judge (IJ), and conceded removability.

To avoid removal, Lin petitioned for asylum, for withholding of removal, and for protection under the Convention Against Torture (CAT).

Unfortunately, he had a credibility problem.

Post-Departure Bars and Legal Double-Standards

A regulation called the "post-departure bar" precludes a removed person from filing a motion to reopen immigration proceedings. In Prestol Espinal v. Attorney General, the Third Circuit Court of Appeals held the post-departure bar invalid to the extent it conflicted with a statute, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which grants aliens the right to file one motion to reopen under certain conditions.

This week, the Third Circuit ruled that the same bar it rejected in Prestol Espinal can nonetheless be invoked by the agency as a basis for refusing to reopen proceedings sua sponte under the regulation.

Third Circuit Reconsiders Hazleton Immigration Law

The Third Circuit Court of Appeals once again considered the Hazleton immigration law this week. Chief Judge Theodore A. McKee, Judge Thomas I. Vanaskie and Senior Judge Richard L. Nygaard heard oral arguments on Wednesday, reports the Times Leader.

Hazelton adopted the Illegal Immigration Relief Act (IIRA) in 2006. The ordinance allowed the city to revoke business licenses for those companies that employed illegal immigrants, and fine landlords that knowingly rented to illegal immigrants. In March 2007, U.S. District Court Judge James Munley found that the IIRA, and a related tenant registration ordinance, were unconstitutional.

Distribution of Prescription Drugs an Aggravated Felony?

Here’s a very interesting immigration law case out of the Third Circuit Court of Appeals. It’s not your standard removal or asylum case. The case involves the removal of an alien, with issues involving drug trafficking and the definition of “aggravated felony.”

The petitioner involved is actually a lawful permanent resident of the United States. That’s what makes the case a little different from what we’re used to seeing.

Court Grants Deportation Appeal After Bankruptcy Fraud

If you follow our numerous appellate court blogs, you’ll know that immigration appeals and deportation appeals aren’t easy to win.

A Jamaican citizen, Nigel Singh, however, had found success when the Third Circuit Court of Appeals overturned his deportation order. The Board of Immigration Appeals had ordered Singh’s deportation after he had been found guilty of bankruptcy perjury. But the Third Circuit Court of Appeals found that the government failed to meet its burden before the BIA.

Petitioner Bound To Attorney Admissions in Removal Proceeding

How much discretion does an attorney have when pleading on behalf of a client?

The Third Circuit Court of Appeals ruled Thursday that Pedro Jesus Calla-Collado was bound by his attorney's admission to allegations in a Notice to Appear (NTA).

Calla-Collado, a native and citizen of Peru, entered the United States in 2005. In September 2007, he was arrested for driving while intoxicated. He was detained as an undocumented alien, and placed in removal proceedings.