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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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