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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. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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