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7th Circuit tackles 'novel' U visa review request

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The 7th Circuit Court of Appeals has ruled it does not have jurisdiction to review immigration orders denying a specialized visa to a non-citizen trying to stay in the country after assisting in an investigation or prosecution.

The appellate court’s ruling came today in Juan Gabriel Torres-Tristan v. Eric H. Holder, Jr., Nos. 10-14-11, 10-2532 and 10-333, a case involving three petitions for review on orders from the U.S. Department of Homeland Security.

Petitioner Juan Gabriel Torres-Tristan entered the U.S. illegally from Mexico as a minor in 1993, and he served an Illinois sentence on robbery and aggravated battery because of his involvement with the Latin Kings gang. The U.S. Immigration and Naturalization Service ordered his removal, and that happened in July 2001. Despite not being able to re-enter without prior approval from the U.S. attorney general, Torres-Tristan re-entered without permission three months later and returned to the Chicago area. He was assaulted in late 2002 and sustained substantial injury. He worked with police investigating the assault to pinpoint the attackers, though that was not successful.

He remained in the Chicago area for seven years, becoming engaged and having a child without any official attention to his illegal immigration status. In January 2010, DHS officials arrested him and reinstated the prior removal order from 2000. While in federal custody awaiting removal, Torres-Tristan filed a petition with the U.S. Citizenship and Immigration Services seeking a U visa that would grant him temporary lawful status based on his cooperation in the police investigation of the 2002 attack.

Because his previous removal order from 2000 was in effect at the time of the attack and before the police cooperation, federal officials determined he wasn’t eligible for a U visa and denied his visa and waiver petitions, as well as a later request for reconsideration. Those actions are what Torres-Tristan sought to have reviewed by the federal courts.

In a 22-page order, the 7th Circuit denied his requests. Judge David Hamilton wrote for the unanimous panel that also included Judges Daniel Manion and Diane Wood.

With regard to judicial review of the DHS’s reinstatement of the 2000 removal order, that was the only petition the court found it has jurisdiction over. The court denied the request on the merits.

“The second and third petitions seek to create a novel route to obtain, apparently for the first time in the circuit courts of appeals, judicial review of orders by (USCIS) that denied petitioner the ‘U Visa’ he sought to prolong his unlawful stay in the United States,” Judge Hamilton wrote, later delving into language in the U visa regulations issued in recent years and generally addressed in caselaw.

Describing this as “an unprecedented expansion of our very limited judicial review of the reinstatement,” Judge Hamilton described why the court was rejecting the argument. He wrote that a Supreme Court ruling from 1983 allowing orders to be cancelled “by operation of law” and similar provision in the U visa regulation is an unlikely means for accomplishing the result Torres-Tristan wants.

This petition review request was a collateral matter for the DHS, something the federal courts aren’t allowed to review, he wrote.

Denying the first petition, the appellate panel dismissed the others for lack of jurisdiction without reaching the merits.
 

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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