Justia Immigration Law Opinion Summaries

Defendant appealed from an oral order denying his request for appointment of new counsel and permitting him to proceed pro se. Defendant was charged in a superseding indictment with one count of being a previously deported alien found in the United States and was currently incarcerated and waiting trial. The court held that it lacked jurisdiction because the collateral order doctrine barred the immediate appeal of an order denying a request to appoint replacement counsel. Because it was clear that the order denying appointment of replacement counsel could be reviewed effectively after trial, the court declined to treat the appeal as a petition for mandamus.

Defendant Lazaro Villalobos-Varela appealed a district court’s sentence of thirty months' imprisonment for re-entry as a removed alien in violation of federal immigration law. According to Defendant, the district court incorrectly concluded that his Colorado felony menacing conviction was a crime of violence and subjected him to a 16-Level Enhancement under the United States Sentencing Guideline Manual (USSG) 2L1.2. Upon review and analysis of Defendant's Colorado conviction, the Tenth Circuit concluded that indeed "felony menacing" was a crime of violence, and that the district court correctly calculated his sentence. The Court therefore affirmed the judgment of the district court.

Petitioner, a native and citizen of El Salvador, petitioned for review of a decision by the BIA affirming a decision of the IJ to deny petitioner's application for withholding of removal and withholding and deferral of removal under the Convention Against Torture (CAT). The court held that a conviction for residential burglary under California Penal Code 459 constituted a crime of violence and was a "particularly serious crime." Therefore, petitioner was ineligible for withholding of removal. The court also held that, although gang members beat up petitioner and his cousin in 2005, there was no evidence that those gang members knew petitioner or his cousin, nor that the gang members had any reason to hurt them. Further, there was no evidence that the gang members were looking for petitioner today. Therefore, petitioner failed to prove its was more likely than not that he would be tortured upon his return under the CAT. Accordingly, the petition was denied.

Pro se prisoner Petitioner Jakub Lonski appealed a district court's dismissal of his "motion for adjustment of sentence pursuant to a habeas petition." Petitioner claimed Canadian citizenship and was being held in New Mexico. He was convicted of a federal drug-related offense in California and sentenced to 42 months' imprisonment. He argued that because of his alien status rendering him ineligible for certain drug-treatment programs and residential re-entry programs made his sentence was harsher than ones imposed on citizen-prisoners. The Tenth Circuit found that district court correctly held that it had no jurisdiction to alter a sentence imposed by another court unless Congress had expressly authorized such action. On appeal, however, Petitioner changed his argument. Before the Tenth Circuit, he claimed that he should have been given a hearing so that he could complete deportation proceedings while in prison so that he could be immediately deported on release. The Tenth Circuit declined to consider Petitioner's new arguments, and affirmed the district court's denial of his motion.

Defendant-Appellant Uriel Santos-Santos appealed his sentence for illegal reentry after deportation subsequent to an aggravated felony conviction. He contended that the district court erred in applying a 16-level offense adjustment pursuant to the U.S. Sentencing Guidelines resulting in a 57-month sentence. Defendant, a Mexican citizen, was convicted in California of (1) inflicting corporal injury on a spouse with a specified prior conviction within seven years and (2) assault by means of force likely to produce great bodily injury. In 2007 he was deported to Mexico, but in January 2010 immigration officials discovered him in Arapahoe County Jail in Centennial, Colorado. That April, Defendant pled guilty to the federal offense. The Presentence Report, on the basis of Defendant's California assault conviction, reflected an offense adjustment of 16 offense levels for defendants who have unlawfully reentered after a conviction for a "crime of violence." This produced an advisory Guideline range of 57-71 months' imprisonment. Defendant unsuccessfully objected to the PSR. Upon review of the applicable legal authority, the Tenth Circuit concluded that the California convictions were "crimes of violence" under the Sentencing Guidelines. Because the district court did not err in enhancing Defendant's sentence based on those convictions, the Tenth Circuit affirmed the district court's judgment.

Defendant appealed his conviction for illegal reentry after deportation. Defendant argued that during the time it took an officer to call the Bureau of Immigration and Customs Enforcement (ICE), he was subjected to an unconstitutional seizure because calling ICE unlawfully prolonged the routine traffic stop. Thus, defendant appealed the district court's denial of his motion to suppress his fingerprints, which were obtained when he was later transported to an ICE office and questioned. Because the court concluded, under the totality of the circumstances, that the officer's call to ICE did not unreasonably prolong the seizure, the court affirmed the judgment.

Petitioner, a native of Jamaica, petitioned for review of a removal order of the BIA. After he pled guilty of possessing marijuana with intent to distribute in Georgia, DHS charged petitioner with being removable for this crime, which it contended should be considered a felony under the Controlled Substances Act (CSA), 8 U.S.C. 1227(a)(2)(A)(iii), and an "aggravated felony" under immigration law. The IJ agreed, and on appeal, the BIA endorsed the felony classification and dismissed petitioner's appeal. The court adopted the First and Sixth Circuits' approach that the default punishment under 21 U.S.C. 841 was a felony. Consequently, as was true for federal defendants charged under section 841, petitioner's crime was equivalent to a federal felony where petitioner failed to meet his burden of proving that he was convicted of only misdemeanor conduct. Petitioner's other arguments were without merit. Therefore, the petition for review was denied.

In 2009, Defendant Antonio Molina-Chavez pled guilty in the New Mexico district court to illegally reentering the United States. The court sentenced him to eight months in prison to be followed by a two-year term of supervised release. In November 2009, Defendant completed his prison term and the Department of Homeland Security removed him to Mexico. A year later, before his supervised release term had expired, Defendant was arrested in Tulsa, Oklahoma on a public intoxication charge. This arrest had two consequences relevant here: (1) Defendant was charged in federal court with illegally reentering the United States to which he pled guilty and was sentenced to ten months’ incarceration; (2) the district court revoked his 2009 supervised release and sentenced him to an additional five months in prison, to be served concurrently with the ten-month sentence on the illegal reentry charge. On appeal from both convictions, Defendant argued that the Oklahoma district court should have (1) permitted him to withdraw his guilty plea, and (2) dismissed the order revoking his supervised release. He contended that ambiguities in his 2009 New Mexico sentence provided him with authorization to reenter the United States legally. The Tenth Circuit disagreed, and therefore affirmed the district court’s judgment and sentence for illegal reentry. The Court dismissed Defendant's appeal concerning revocation of his supervised release as moot.

This appeal presented the Tenth Circuit with two questions related to the presence of "fast-track" programs for disposing of illegal re-entry and other immigration offenses in some federal districts, but not others. The first question was whether a sentencing court in a non-fast-track district has the discretion to consider sentence disparities caused by the existence of fast-track programs in other districts, and based thereon, vary from the applicable guideline range for a defendant charged with an immigration offense. If so, the second issue was whether the "apparently nebulous" eligibility requirements for fast-track programs relieve a defendant charged with an immigration offense in a non-fast-track district of the burden of showing entitlement to sentencing consistent with a fast-track program. Upon review, the Tenth Circuit held that (1) where the circumstances warrant, a district court in a non-fast-track district has the discretion to vary from a defendant’s applicable guideline range based on fast-track sentence disparities, but (2) a defendant bears the initial burden of showing entitlement, in some sense, to a variance based on fast-track sentence disparities.

Petitioner, a citizen of the Dominican Republic, entered the U.S. in 1982 and became a lawful permanent resident. About 10 years later he pled guilty to armed robbery. Later he pled guilty to auto-stripping. Upon his return from a 2003 trip he was denied readmission, then paroled. During removal proceedings petitioner conceded that second-degree robbery was a crime of moral turpitude, but contended that his conviction should be waived under former 8 U.S.C. 1182(c)). The immigration judge rejected the argument, finding that auto-stripping is also a crime of moral turpitude. The BIA affirmed and petitioner was removed. In 2010 petitioner requested that the BIA reopen in light of the 2010 Supreme Court decision, Padilla v. Kentucky. Petitioner claimed ineffective assistance of counsel because his attorney did not inform him of the immigration consequences of a guilty plea. The BIA denied the motion. The First Circuit denied appeal. Aliens have a right to move to reopen removal proceedings, 8 U.S.C. 1229a(c)(7)(A), within 90 days of a final order. The BIA was within its discretion in refusing to waive the limit, given that petitioner made no attempt to have his state law convictions overturned.