Justia Immigration Law Opinion Summaries

Petitioner Omar Garcia-Tinoco, a native and citizen of Mexico, challenged the Bureau of Immigration Appeals' (BIA's) decision dismissing his appeal of a removal order. Petitioner entered the U.S. without inspection in 1994. Five years later, he pled guilty in Colorado to possession of cocaine. In 2010, the Department of Homeland Security commenced removal proceedings against him. He appeared before an immigration judge (IJ) and conceded that he was in the country illegally, but contested removal on the basis of his controlled-substance conviction because he was "in the process of withdrawing his guilty plea pursuant to a violation of his constitutional rights." To that end, Petitioner filed a post-conviction petition in state court, arguing that his guilty plea was the result of ineffective assistance of counsel. The IJ denied the motion and ordered Petitioner removed. The BIA affirmed, stating that the IJ was not required to grant a continuance because Petitioner's "collateral attack upon his conviction d[id] not … negate its validity." Petitioner asked the Tenth Circuit to reverse the decision of the IJ and hold that he established good cause for a continuance. Upon review, the Court found that it lacked jurisdiction to review the case: "constitutional infirmities in collateral proceedings are 'categorically' beyond the scope of [the Court's] review."

Petitioner Joel Ruelas-Rios sought judicial review of the Department of Homeland Security's (DHS) order that reinstated his prior removal order. Petitioner is a native and citizen of Mexico. He applied for admission to the United States in 1998 by falsely representing himself as a lawful permanent resident of the United States. Petitioner presented another person’s valid Resident Alien Card at the border. Petitioner was removed that same day under expedited procedures. In 2011, Petitioner was detained in Kansas while attempting to enter McConnell Air Force Base to perform work as a contractor. DHS issued Petitioner notice of its intent to reinstate his prior removal order as an alien who illegally reentered the United States after having been previously removed. Petitioner petitioned for review of DHS's reinstatement order, raising a single contention: whether reinstatement of a prior removal order, without providing the alien a hearing before an immigration judge, is a violation of due process when the alien was also denied a hearing in connection with the prior removal order and had been in the United States for an extended period of time. Because Petitioner failed to establish any prejudice as a result of not being afforded a hearing before an immigration judge, his due process claim failed. The Tenth Circuit denied Petitioner's request for review.

Defendant, an alien, pled guilty to knowingly and unlawfully reentering the United States after being deported. The district court enhanced defendant's sentence under U.S.S.G. 2L1.2(b)(1)(E) because the court determined that defendant had been convicted of three or more misdemeanor crimes of violence. The court held that the district court properly applied the enhancement where defendant's four assault and battery convictions under Omaha Municipal Code 20-61 qualified as a crime of violence.

Petitioner, a lawful permanent resident of the United States, was ordered removed on the ground that he had been convicted of an aggravated felony. Petitioner contended that the evidence was insufficient to establish that the crime of which he was convicted was an aggravated felony. The court concluded that petitioner's conviction of first-degree burglary was a conviction of an aggravated felony, and was sufficiently established by the state court's abstract of judgment. The court also rejected petitioner's ineffective assistance of counsel claim and accordingly denied the petition for review.

After Defendant Gilberto Cruz-Arellanes was sentenced for illegally reentering the country, the Sentencing Commission issued an amendment (Amendment 740) to the illegal reentry guideline. The amendment discusses when and under what conditions a district court might wish to depart downward due to a defendant’s cultural assimilation. Seeking the benefit of this new guidance, Defendant filed a motion for a sentence reduction. The district court denied the motion. Defendant appealed, arguing the court abused its discretion in not applying the amended sentencing guidelines. Finding no abuse of discretion, the Tenth Circuit affirmed the district court's order and Defendant's sentence.

From 1996 until 2003, petitioner, a Columbian, laundered money for Colombian drug traffickers. He was arrested and agreed to cooperate with the FBI. Conviction and sentencing were deferred. He worked with the FBI from 2003 to 2007. In 2007, petitioner was arrested in Colombia for failure to pay a fine years earlier. He paid the fine, but remained in jail for 22 days. He claims that his arrest was to facilitate his murder by the paramilitary group targeted by his FBI work. When he returned to the U.S. he was arrested because FBI agents believed he was involved in money laundering outside of his cooperation. Petitioner pled guilty based on the 1999 transfers. DHS charged him as removable. An IJ and the BIA denied his request for deferral of removal under the Convention Against Torture. The Third Circuit remanded. The BIA must consider that an applicant can establish governmental acquiescence even if the government opposes the paramilitary organization that is engaged in torturous acts. The BIA must also consider that country conditions can, by themselves, constitute grounds for determining that an applicant would more likely than not be subjected to torture upon return to the country of removal.

Defendant-appellant Dennis Enriquez Lopez-Avila was charged with unlawful re-entry after deportation following an aggravated felony conviction. Defendant entered a guilty plea after reaching an agreement with the prosecution. The district court rejected Defendant's request for a sentence below that calculated under the advisory guidelines and sentenced him to thirty-seven months' imprisonment. Defendant argued on appeal that his sentence was procedurally unreasonable because the district court erroneously concluded that it could not consider the disparities created by the existence of fast-track programs when determining his sentence. Upon review, the Tenth Circuit found that Defendant presented a "generalized argument" which alone is not sufficient to justify a variance from the sentencing guidelines because of different sentencing guidelines for fast-track programs. Therefore, the Court rejected Defendant's claim of error and affirmed the district court's decision.

Defendant-Appellant Mario Casas-Tapia is a citizen of Mexico who lawfully immigrated to the United States with his parents when he was six months old. He was admitted to the United States as a lawful permanent resident, but he lost that status following his criminal convictions while a teenager. In 1998, at the age of eighteen, he pled guilty to misdemeanor assault and first-degree criminal trespass, an aggravated felony, and was deported. His immediate family remained in the United States. After living in Mexico for five years, Defendant returned illegally and resettled near his family. Since returning, he has been convicted of several misdemeanor and felony offenses. In 2010, he pled guilty to unlawful reentry of a removed alien subsequent to an aggravated felony conviction. In the presentence report, the probation officer calculated the sentencing range at thirty to thirty-seven months and recommended a sentence at the high end of the range based on Defendant's criminal history. Defendant moved for a below-guidelines sentence based on cultural assimilation. The court imposed a thirty-month sentence. The sole issue on appeal was whether the district court failed to recognize the scope of its legal authority to apply a downward departure for cultural assimilation. Because the Tenth Circuit concluded that the district court's denial was discretionary, the Court lacked jurisdiction and dismissed the appeal.

Defendant, a citizen of Mexico and an alien, pleaded guilty pursuant to a plea agreement to violating 8 U.S.C. 1326(a) and 1326(b)(2) because he was found in the United States after having been removed or deported from the United States and without permission to reapply for admission following removal or deportation. Defendant timely appealed his sentence of 21 months' imprisonment where the district court held that a citation for a traffic violation was the same as an arrest under U.S.S.G. 4A1.2(a)(2). The court concluded that nothing in the record suggested that defendant was ever formally arrested for driving with a suspended license. Defendant was not told he was "under arrest," he was not transported to the police station, and he was not booked into jail. Absent one of these hallmarks of a formal arrest, the district court erred in finding that defendant had been "arrested" for purposes of the Sentencing Guidelines. Therefore, defendant's sentence was vacated and the case remanded for resentencing.

Defendant Miguel Hernandez-Valdez appealed his sentence of thirty-three months' imprisonment for having been convicted of being an alien in possession of a firearm. On appeal to the Tenth Circuit, Defendant argued that the district court erred in applying a four-level sentencing enhancement under the United States Sentencing Guidelines for his possession of the firearm in connection with another felony offense. Although the Court concluded the district court failed to engage in fact finding as required by the Federal Rules of Criminal Procedure, Defendant did not show that the court committed plain error. Accordingly, the Tenth Circuit affirmed the district court's calculation of Defendant's sentence.