Justia Immigration Law Opinion Summaries

The Board of Immigration Appeals ruled that Petitioner is removable as an aggravated felon and denied his requests for asylum and withholding of removal. Petitioner petitions for review, arguing that his Massachusetts conviction for armed robbery does not constitute a “theft offense” within the meaning of 8 U.S.C. Section 1101(a)(43)(G) and therefore is not an “aggravated felony” under 8 U.S.C. Section 1227(a)(2)(A)(iii).   The Eleventh Circuit denied Petitioner’s petition in part and granted in part. The court rejected Petitioner’s argument that armed robbery does not constitute a “theft offense” within the meaning of 8 U.S.C. Section 1101(a)(43)(G). However, the court agreed with the parties that a remand to the BIA is nevertheless required. The Attorney General has issued an intervening decision that might impact Petitioner’s request for withholding of removal, and the BIA should have the opportunity to consider the effect of that decision. The court wrote that Petitioner was sentenced to less than five years in prison. His aggravated felony conviction, therefore, does not per se constitute a particularly serious crime with respect to withholding of removal. View "Mucktaru Kemokai v. U.S. Attorney General" on Justia Law

In 1992, Pesikan a six-year-old citizen of Bosnia, along with his mother, fled Bosnia. In 1998, they entered the U.S. as refugees and gained lawful permanent resident status. In 2017, Pesikan caused a car accident. A responding officer found a half-consumed bottle of whiskey on Pesikan’s driver’s seat and marijuana in the door pocket. A blood test of Pesikan revealed the presence of cocaine, marijuana, alprazolam, and a ,054 blood alcohol content. Pesikan was convicted in Pennsylvania of DUI six counts; the court merged the DUI counts into Count 2–for driving while under the influence of marijuana.Pesikan was charged with removability as an alien convicted of violating a law relating to a controlled substance, 8 U.S.C. 1227(a)(2)(B)(i), which asks whether a noncitizen has been convicted of a violation of any law relating to a federally controlled substance. Pesikan argued that, applying the categorical approach to comparing state and federal crimes, Pennsylvania’s DUI statute is broader than the federal law because it allows for convictions based on the use of substances that are not federally controlled. The IJ held that the Pennsylvania statute is divisible, applied the modified categorical approach, and denied a motion to terminate. The BIA dismissed Pesikan’s appeal. The Third Circuit granted a petition for review. Because the identity of the specific controlled substance is not an element of the Pennsylvania DUI statute, that statute is indivisible and cannot serve as the basis for Pesikan’s removal. View "Pesikan v. Attorney General United States" on Justia Law

Defendant a citizen of Mexico, has been deported from the United States repeatedly over the past three decades. The list of crimes he has committed in the United States is extensive. Most recently, Defendant pleaded guilty to illegally reentering the United States after a prior deportation. At the time of this offense, Defendant was 51 years old, but had only spent one year of his adult life in Mexico, his country of citizenship. Under the Sentencing Guidelines, Defendant’s recommended range spanned from 3 years and 10 months (46 months) to 4 years and 9 months (57 months). The district court sentenced Defendant to 6 years (72 months). Defendant challenged his sentence as procedurally and substantively unreasonable.   The Fifth Circuit affirmed. The court explained that the Government concedes that the district court mistakenly counted six prior theft convictions when there were only four and mistakenly suggested that Defendant had served 7 years for a 1991 vehicle burglary conviction when he actually served 10 months of the 7-year sentence. These, the Government admits, were obvious errors. Yet the Government argues, and we agree, that these misstatements did not affect Defendant’s substantial rights. Nor did they impugn the fairness, integrity, or reputation of the proceedings. Further, the court wrote it has previously affirmed the substantive reasonableness of a 72-month sentence for illegal re-entry. Thus, the court concluded that this sentence was substantively reasonable, as well. View "USA v. Recio-Rosas" on Justia Law

Defendant was convicted of illegally reentering the country after a previous deportation, in violation of 8 U.S.C. Section 1326(a) & (b)(2). He claimed that the district court wrongly denied his request for a jury instruction about duress and inappropriately applied an enhancement to his sentence for obstruction of justice. Mora argues that the district court’s finding did not address all the elements of perjury. The district court stated that “this Defendant lied under oath to that jury” and that “he obstructed justice.” Defendant posits that this does not address whether the lie was willful or material.   The Fifth Circuit affirmed. The court explained that the defendant must present proof of each element to receive a jury instruction on duress. The court wrote that even taking the evidence in the light most favorable to Defendant, he has not presented proof that he was in danger at the moment of his offense. The court reasoned that there is no reason to believe that he was detained, followed, or surveilled in the interim between his abduction and the commission of the offense.   Further, the court explained that the obstruction of justice enhancement applies if “the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and . . . the obstructive conduct related to . . . the defendant’s offense of conviction and any relevant conduct.” The court wrote that it found that the district court’s finding “encompasses all of the factual predicates for a finding of perjury.” View "USA v. Mora-Carrillo" on Justia Law

Petitioner has been a lawful permanent resident (LPR) of the United States since 2003. Since that time, he has been convicted of various crimes, including theft, criminal trespass, a DUI, and, as relevant here, possession of heroin in violation of Oregon law. After he received a notice to appear (NTA) initiating removal proceedings, Petitioner applied for cancellation of removal. The immigration judge (IJ) denied the petition and the Board of Immigration Appeals (BIA) dismissed Petitioner’s appeal.   The Ninth Circuit denied Petitioner’s petition for review. The court held that the agency did not err in concluding that the stop-time rule set forth in 8 U.S.C. Section 1229b(d)(1)(B), which terminates accrual of the requisite seven years of continuous physical presence, is calculated from the date a petitioner committed the criminal offense that rendered him removable, rather than the date he was convicted. A lawful permanent resident becomes removable once he is convicted of a qualifying offense, and if the offense is committed within seven years of being admitted into the United States, the Attorney General lacks discretion to cancel removal. Here, Petitioner committed the offense a few months shy of satisfying the seven-year continuous residence requirement, but the conviction became final outside the statutory seven-year period. The panel held that the agency did not err in deciding that the stop-time rule is calculated from the date Petitioner committed the criminal offense that rendered him removable, rather than the date he was convicted. View "RUDNITSKYY V. GARLAND" on Justia Law

Petitioner petitioned for review of a decision of the Board of Immigration Appeals affirming the finding that he is removable on the ground that he committed a crime involving moral turpitude for which “a sentence of one year or longer may be imposed.” 8 U.S.C. Section 1227(a)(2)(A)(i). The predicate offense, a 2017 conviction for possession of a forged instrument, is a Class A misdemeanor under New York law. In 2019, after his conviction, New York enacted Penal Law Section 70.15(1-a), which lowered the maximum possible sentence for Class A misdemeanors from one year to 364 days. Petitioner asserts that because the statute is retroactive for state law purposes, his prior conviction no longer constitutes a basis for removal because it is not a crime for which “a sentence of one year or longer may be imposed,” as required by the removal statute.   The Second Circuit denied Petitoner’s petition. The court wrote that it declines to give retroactive effect to New York’s modification of its sentencing scheme for purposes of federal immigration law. The removal statute focuses on the historical fact of an alien’s prior conviction and thereby consults the state law applicable at the time of the criminal proceedings, not at the time of the removal proceedings. View "Peguero Vasquez v. Garland" on Justia Law

Defendant appealed his sentence of twenty-seven months’ imprisonment followed by three years’ supervised release for attempted reentry following removal. Defendant had been deported from the United States six times, most recently about a month before his arrest. The same district court judge who sentenced Defendant in this case had presided over his prior sentencing hearing for illegal reentry. On appeal, Defendant raised two challenges to the court’s sentence.   The Ninth Circuit affirmed Defendant’s sentence. The panel held that so long as Defendant is apprised of the consequences of entering into a Type B plea agreement and accedes to them voluntarily, he has no right to withdraw from the agreement on the ground that the court does not accept the sentencing recommendation or request. Accordingly, the district court’s use of the word “reject” in the context of a Type B plea agreement can have no legal effect. The panel wrote that the record establishes that Defendant was aware of the consequences of entering into a Type B plea agreement, and concluded that the district court therefore did not abuse its discretion under the circumstances.   Defendant argued that the district court committed procedural error when it used Defendant’s alleged promise at his prior sentencing hearing not to return to the United States as a sentencing factor. Reviewing for plain error, the panel held that the district court’s factual finding that Defendant had assured the court at the prior sentencing hearing that he would not return to the United States is supported by the record. View "USA V. URBANO TORRES-GILES" on Justia Law

Defendant appealed from his conviction after a conditional plea of guilty to a single count of unlawful reentry by a previously removed alien. Defendant contended that his indictment should have been dismissed on the ground that the 2000 removal order underlying his prior removals was invalid due to an error by the immigration judge (“IJ”), at his removal hearing, as to whether he was eligible for voluntary departure.   The Ninth Circuit affirmed. The panel held that, in the respects relevant here, Palomar-Santiago abrogated that caselaw as well. Even assuming arguendo that the IJ’s incorrect statement about Defendant’s eligibility for voluntary departure violated due process and rendered his removal proceedings “fundamentally unfair,” that would not automatically or “effectively” satisfy the requirement in 8 U.S.C. Section 1326(d)(1) that the alien exhausted available administrative remedies, or the requirement in 8 U.S.C. Section 1326(d)(2) that the deportation proceedings improperly deprived the alien of an opportunity for judicial review. The panel therefore concluded that Defendant remains subject to Section 1326(d)’s general rule that he may not challenge the validity of his predicate removal order. View "USA V. PRAXEDIS PORTILLO-GONZALEZ" on Justia Law

Defendant appealed the terms of his supervised release arguing that there is an impermissible conflict between the district court’s oral pronouncement and written judgment. In the presentence report, the probation officer recommended various mandatory and standard conditions of supervision. The probation officer also recommended a special condition, as Defendant was a legal alien permanent resident, but his arrest would have rendered him subject to deportation proceedings. The district court imposed a guidelines sentence of imprisonment for 95 months with three years of supervised release. The court orally adopted the special conditions recommended in the presentence report and orally informed Defendant that he must be legally authorized to reenter the country, as is reflected in the written judgment. Defendant appealed, arguing that the work-authorization condition in the written judgment conflicts with the oral pronouncement of his sentence and that the written judgment should be amended to conform to the oral pronouncement.   The Fifth Circuit affirmed. The court held that there is no conflict between the district court’s oral pronouncement of Defendant’s sentence and its written judgment. The work-authorization condition does not broaden the restrictions in Defendant’s supervised release already in place under the oral pronouncement. The court wrote that the purported “conflict” is then best described as an ambiguity— one that can be resolved by looking to entire record to determine the sentencing court’s intent in imposing the condition. The court explained that the record makes sufficient reference to Defendant’s immigration history to discern the district court’s efforts to ensure that Defendant complied with the relevant immigration laws. View "USA v. Pelayo-Zamarripa" on Justia Law

Defendant, a lawful permanent resident of the United States, was charged with importation of a controlled substance in violation of 21 U.S.C. Section 952(a). Her lawyer told her that if she pleaded guilty, it was “very likely” that she would be deported. She nonetheless entered the plea. Defendant then learned that her offense did not just possibly make her deportable, it automatically did so. She then moved to withdraw her plea, alleging that if she had known the full scope of the immigration consequences of her plea, she would not have entered it. The district court denied Defendant’s motion and sentenced her. Defendant appealed. At issue is whether a lawyer’s warning of “very likely” deportation satisfies the right to effective assistance of counsel.   The Fifth Circuit affirmed. The court explained that when defense counsel tells an alien client that a conviction will have serious immigration consequences, including “very likely” deportation, that defendant has received sufficient advice to make an informed plea decision, as required by the Sixth Amendment. The court explained that there is some ambiguity about what specific words Defendant’s lawyer used when explaining to her the immigration consequences of the plea. But the district court’s factual finding—which is reviewed only for clear error—suggests the following bottom line: Defendant’s lawyer put her on notice of the risk of serious immigration consequences, including deportation. Accordingly, the court concluded that the district court therefore did not abuse its discretion in denying Defendant’s motion to withdraw her plea. View "USA v. Armendariz" on Justia Law