Justia Immigration Law Opinion Summaries

Petitioner is a native citizen of Mexico who received lawful permanent resident status in the United States in 2003. In 2014, Petitioner was convicted by way of a guilty plea of an Aggravated Robbery in Texas. Petitioner was then deemed removable by an Immigration Judge ("IJ"). The Board of Immigration Appeals ("BIA") affirmed, finding that Petitioner had been convicted of an "aggravated felony."The Fifth Circuit affirmed. Under 8 U.S.C. Sec. 1227(a)(2)(A)(iii), an “alien who is convicted of an aggravated felony at any time after admission is deportable.” Section 1101(a)(43) of title 8 provides a list of offenses that qualify as aggravated felonies, which includes felony theft crimes, felony crimes of violence and attempts to commit these offenses. Petitioner argued that “since the Texas definition of a robbery encompasses an attempt to commit theft, it cannot categorically be defined as a theft offense, as an actual taking or exercise of control over the property of another is not needed for purposes of a conviction.However, the court held that, for Petitioner's purposes, it didn't matter if he was convicted of attempted theft or aggravated theft. The court explained that Petitioner is ineligible for asylum because his conviction qualifies as a non-political felony crime of violence as defined in 18 U.S.C. Sec. 16(a). View "Rodriguez Gonzalez v. Garland" on Justia Law

The Department of Homeland Security charged him with removability under the Immigration and Nationality Act (“INA”). Petitioner admitted the factual allegations and conceded the charge of removability. Petitioner applied for cancellation of removal, withholding of removal, and protection under the Convention Against Torture. The immigration judge (“IJ”) denied his application for all claims. Petitioner appealed to the Board of Immigration Appeals (“BIA”). The BIA dismissed the appeal. Petitioner petitioned for review in the Fifth Circuit, and he only preserved his cancellation of removal claim.   The Fifth Circuit dismissed the appeal and held that it lacked jurisdiction to review either decision. The court explained that Section 1252(d)(1)’s exhaustion requirement applies to claims alleging defects in the BIA proceedings that the BIA “never had a chance to consider” because they arise “only as a consequence of the Board’s error.” Moreover, “when a petitioner seeks to raise a claim not presented to the BIA and the claim is one that the BIA has adequate mechanisms to address and remedy, the petitioner must raise the issue in a motion to reopen prior to resorting to review by the courts.” Here, Petitioner failed to meet these requirements. He never presented his ultra vires claim to the BIA, even though he could have raised it in his motion to reconsider. Moreover, Petitioner seeks the exact relief the BIA could’ve awarded him on reconsideration—namely, a new decision by a board member serving an unexpired term. View "Ayala Chapa v. Garland" on Justia Law

A jury convicted Defendant of felonious assault on a peace officer under section 2903.13(A) of the Ohio Revised Code and misdemeanor resisting arrest. While Defendant was in prison, he was served with a “Notice of Intent to Issue a Final Administrative Removal Order.” The notice alleged that Defendant was a Mexican citizen in the country illegally who had been convicted of an aggravated felony and was thus removable. The notice alleged that his conviction qualified as an aggravated felony because it was a crime of violence under the INA. Defendant was once again arrested and charged with illegal reentry. Defendant moved to dismiss the indictment, arguing that his section 2903.13(A) assault conviction was not an aggravated felony. The district court denied Defendant’s motion.   The Ninth Circuit affirmed. The panel disagreed with Defendant’s contention that knowledge is not sufficient for “attempted use” because common law attempt requires specific intent. Defendant also argued that his prior offense is not a crime of violence because section 2903.13(A) does not require “violent” physical force but can be violated by offensive or de minimis contact. The panel explained that the text of section 2903.13(A) only criminalizes force capable of causing physical pain or injury and held that the type of conduct to which section 2903.13(A) has been applied by Ohio courts is force capable of causing physical pain or injury. The panel, therefore, concluded that section 2903.13(a) is a crime of violence under Section 16(a), it thus qualifies as an aggravated felony under Section 1101(a)(43)(F), and Defendant’s removal order was not fundamentally unfair. View "USA V. JACINTO ALVAREZ" on Justia Law

The Supreme Court reversed the judgment of the court of appeal affirming the decision of the trial court denying Defendant's motion to vacate his conviction, holding that holding that the court of appeals erred in ruling that Defendant failed adequately to corroborate his claim that immigration consequences were a paramount concern and thus that Defendant could not demonstrate prejudice within the meaning of Cal. Penal Code 1473.7.In 2004, Defendant, a native of Mexico, accepted a plea bargain and served one year in jail. In 2015, Defendant was detained by federal immigration authorities after a return flight to the United States, and his permanent residence card was seized. In his his third motion to vacate his conviction, Defendant argued that he had not been aware of the immigration consequences of his plea and that, had he been aware, he would have sought a plea with lesser consequences or gone to trial. The trial court denied the motion without holding an evidentiary hearing. The Supreme Court reversed, holding that, under the totality of the circumstances, there was a reasonable probability that Defendant would have rejected the plea had he understood its immigration consequences. View "People v. Espinoza" on Justia Law

Cruz‐Velasco entered the U.S. without inspection in 1999. He has remained continuously present, raising his American‐born sons as a single father after the death of his partner. In 2014, Cruz‐Velasco was convicted of reckless driving, endangering safety, and operating a vehicle while intoxicated, with his nine‐ and 11‐year‐old sons in the car. In subsequent removal proceedings, Cruz‐Velasco sought cancellation of removal, 8 U.S.C. 1229b(b). While in removal proceedings, Cruz‐Velasco was convicted again with DUI and sentenced to serve another 10 days in jail. Cruz‐Velasco stopped drinking after his 2016 arrest and completed a court‐ordered substance abuse program.The IJ held that he was ineligible for cancellation of removal, having failed to establish that his sons would suffer hardship beyond what is predictable as a result of a parent’s removal and because his DUI convictions demonstrated a lack of good moral character. While his BIA appeal was pending, the Attorney General ruled that two or more DUI convictions in the relevant period raise a presumption that a noncitizen lacks good moral character, which cannot be overcome solely by showing rehabilitation. The BIA affirmed the removal order Amid the 2020 COVID‐19 pandemic, Cruz‐Velasco sought to reopen his application, submitting new evidence that he had been diagnosed with diabetes and that this condition increased his risk of dying from COVID‐19 in Mexico. The BIA denied Cruz‐Velasco’s motion, without specifically addressing arguments concerning his diabetes. The Seventh Circuit denied a petition for review. View "Cruz-Velasco v. Garland" on Justia Law

Defendant, an Iraqi citizen, was convicted of attempting to procure naturalization unlawfully and of presenting a naturalization application with false statements. Both convictions were predicated on Defendant’s answers to two questions on his naturalization application, in which he asserted that he had never given false information to a U.S. Government official and that he had never lied to such an official to gain an immigration benefit.   On appeal, Defendant argued that the Government presented insufficient evidence to establish that any false statements he made during the asylum process were material to his subsequent naturalization application and that his motion for judgment of acquittal on both counts should have been granted.   The Ninth Circuit affirmed Defendant’s conviction for attempting to procure naturalization unlawfully and presenting a naturalization application with false statements. The panel concluded that ample evidence supports the Government’s reliance on the “investigation-based theory” of materiality. The panel concluded that a rational jury could find, beyond a reasonable doubt, that a reasonable immigration judge apprised of the facts about Defendant’s presence in Germany would have found Defendant not to be credible, and would have denied asylum, on the ground that the claimed persecution in 2008 was fabricated and that Defendant thus had not established that he had suffered past persecution. Further, the panel concluded that the Government presented sufficient evidence to permit a rational jury to conclude on this basis that Defendant would have been ineligible for asylum and that his false statements on his later naturalization application were, therefore material to the naturalization decision under an “investigation-based theory.” View "USA V. SEVAN AMINTOBIA" on Justia Law

Plaintiff, a native of El Salvador, was detained by immigration authorities. An immigration judge (IJ) denied bond, and an IJ later denied him relief under the Convention Against Torture and ordered his removal. The Board of Immigration Appeals dismissed his appeal, and this court denied his petition for review. In April 2021, Plaintiff moved the BIA to reopen, and the BIA denied a stay of removal. In May 2021, Plaintiff filed a habeas petition with the district court, which denied his motion to enjoin his removal until his motion to reopen and habeas petition were decided. On June 14, 2021, the district court denied Plaintiff subsequently-filed motion for a TRO, and the government voluntarily agreed to stay removal up to and including August 13, 2021.   The Ninth Circuit filed: 1) an order amending the opinion filed August 13, 2021; and 2) an amended opinion affirming the district court’s denial of Plaintiff’s request for a temporary restraining order (TRO) to prevent the government from removing him. The panel concluded that the district court correctly determined that jurisdiction was barred by 8 U.S.C. Section 1252(g), which provides that “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien.” The panel rejected Plaintiff’s claim that the Constitution’s Suspension Clause preserves judicial review here. View "WILLIAN RAUDA V. DAVID JENNINGS, ET AL" on Justia Law

Defendant was indicted for illegally reentering the United States, a violation of 8 U.S.C. Section 1326. He unsuccessfully moved to dismiss the indictment on equal protection grounds. After a bench trial on stipulated facts, the district court sentenced him to 30 months imprisonment and three years supervised release. On appeal, Defendant argues that Section 1326 violates the Fifth Amendment’s equal protection principles. As for his sentence, he asserts that the district court (1) failed to consider sentencing disparities, (2) improperly considered the timing of an appeal in sentencing him to three years of supervised release, and (3) failed to consider the Sentencing Guidelines’ policy on supervised release for deportable defendants.   The Fifth Circuit agreed that the district court abused its discretion by considering the appeal clock in determining the appropriate term of supervised release. Accordingly, the court vacated that part of Defendant’s sentence and remanded for reconsideration of the supervised-release term. The court otherwise affirmed Defendant’s conviction and sentence. The court found that the district court imposed three years of supervised release solely out of fear that a lower sentence would moot an appeal. The timing of an appeal is not a factor that courts are tasked with considering in imposing supervised release. Such a consideration is also irrelevant because Defendant could appeal his conviction even after his sentence ends. The district court abused its discretion by basing the term of supervised release on the irrelevant timing for an appeal. View "USA v. Barcenas-Rumualdo" on Justia Law

Baghdad, a Moroccan citizen, has lived in the U.S. as a lawful permanent resident for two decades. In 2018, he and two accomplices ran out of a Pennsylvania store with three drills (worth about $1000) and sold them at a pawn shop. He pleaded guilty to retail theft and faced nearly two years’ incarceration. The government argued that his conviction was for an aggravated felony, making him removable under 8 U.S.C. 1227(a)(2)(A)(iii). The term “aggravated felony” includes theft convictions that result in prison sentences of at least one year. An immigration judge and the Board of Immigration Appeals agreed that the retail theft conviction constituted an aggravated felonyThe Third Circuit denied Baghdad’s petition for review, applying the categorical approach. Baghdad was convicted of a crime that shares all three elements with generic theft and his sentence was for more than one year. While Pennsylvania juries may infer that a defendant who concealed merchandise intended to steal it, that inference is permissive, not mandatory. It depends on facts from which the jury could infer intent to steal beyond a reasonable doubt and it does not shift the burden of proof. Baghdad’s conviction makes him removable. View "Baghdad v. Attorney General United States" on Justia Law

De Castro, a citizen of the Dominican Republic came to the U.S. around 2002-2003. In 2012, he married a U.S. citizen. In 2014, his spouse’s Petition for Alien Relative was approved. The State Department notified De Castro that his immigrant visa petition was eligible for further processing. Months later, he was arrested as an alien in possession of a weapon, 18 U.S.C. 922(g)(5)(A). De Castro eventually pleaded guilty and was allowed to depart voluntarily in 2017. Thirteen months after the Supreme Court’s 2019 “Rehaif” decision, De Castro sought a writ of error coram nobis challenging his conviction. In Rehaif, the Supreme Court held that section 922(g)'s “knowingly” provision applies to both the possession and immigration status elements. De Castro argued that the government never proved he knew he was illegally or unlawfully in the United States; the court never informed him at his plea colloquy that the government was required to prove that element.The Third Circuit affirmed the denial of the petition, finding that De Castro did not have a sound reason for his delay in seeking relief; his knowledge-of-immigration-status argument was not futile in 2017 when he entered his plea agreement; and De Castro cannot establish actual innocence under the Rehaif standard because he cannot demonstrate it is more likely than not that no reasonable juror would conclude that he knew of his status as an illegal alien at the time he possessed a firearm. View "United States v. De Castro" on Justia Law