Justia Immigration Law Opinion Summaries

The Fifth Circuit denied in part and dismissed in part a petition challenging petitioner's removability based on an aggravated felony conviction under 8 U.S.C. 1227(a)(2)(A)(iii) for attempting to launder money in violation of Tennessee law. The court concluded that only two of petitioner's five claims in his petition for review have been exhausted. The court also concluded that Tennessee Code section 39- 14- 903(b)(1) was divisible by subsection in light of Mathis v. United States, 136 S. Ct. 2243, 2248–49 (2016). Finally, the court concluded that the BIA did not err in concluding that Subsection (b) was a categorical match with the generic crime of money laundering. View "Fakhuri v. Garland" on Justia Law

In connection with his leading role in a Chinese construction company in 2010-2016, Zhong was convicted of forced-labor conspiracy 18 U.S.C. 1594(b); forced labor, section 1589(a) and (b); concealing passports and immigration documents in connection with forced labor, section 1592(a); alien smuggling conspiracy, 8 U.S.C. 1324(a)(1)(A)(v)(I); and visa fraud conspiracy, 18 U.S.C. 371.The Second Circuit vacated in part. The district court committed evidentiary errors that may have affected the jury’s decision to convict Zhong on the three forced-labor counts. The court allowed testimony about 2001-2002 preindictment conduct, preventing Zhong’s attempts to impeach a witness by offering evidence of the witness’s reputation for truthfulness, and permitting expert witness testimony that exceeded its proper scope. .Those errors were unconnected to Zhong’s other two counts. The government presented sufficient evidence to allow a jury to convict him on the alien smuggling and visa fraud counts. The district court did not abuse its discretion in declining to give an “adverse but legitimate consequences” jury instruction regarding threats made to the workers. View "United States v. Zhong" on Justia Law

In 2019, the Fifth Circuit affirmed Fuentes-Rodriguez’s sentence imposed after he pleaded guilty to illegal reentry into the U.S. following deportation and having been previously convicted of an aggravated felony. The court held that his prior Texas conviction qualified as a crime of violence under 18 U.S.C. 16. While his petition was pending, the Supreme Court decided in "Borden" that a crime capable of commission with “a less culpable mental state than purpose or knowledge,” such as “recklessness,” cannot qualify as a “violent felony” under 18 U.S.C. 924(e)(2)(B)(I), the Armed Career Criminal Act (ACCA).On remand from the Supreme Court, the Fifth Circuit vacated. Fuentes-Rodriguez’s underlying Texas conviction qualifies as an aggravated felony only through 18 U.S.C. 16(a), which defines a “crime of violence” almost identically to the ACCA’s “violent felony” provision at issue in Borden. Fuentes-Rodriguez should not have been sentenced under 8 U.S.C. 1326(b)(2) because Texas’s family-violence assault can be committed recklessly. His conviction falls within 8 U.S.C. 1326(b)(1), which covers illegal reentry after conviction for a non-aggravated felony. The district court’s judgment should be reformed because section 1326(b)(2) is associated with worse collateral consequences than section 1326(b)(1). Remanding the case for entry of an amended judgment, reflecting that Fuentes-Rodriguez was convicted and sentenced under 8 U.S.C. 1326(b)(1) as an “Alien Unlawfully Found in the United States after Deportation, Having Previously Been Convicted of a Felony,” will reduce the risk of future confusion. View "United States v. Fuentes-Rodriguez" on Justia Law

Chamu, born in Mexico, entered the U.S. without inspection in 1990. In 2003, he was pleaded guilty to cocaine possession under Florida law; 14 years later, in removal proceedings, 8 U.S.C. 1182(a)(6)(A)(I), Chamu applied for cancellation of removal, alleging that his mother and children would suffer exceptional hardship.Cancellation is unavailable for those who have been convicted of a state offense “relating to a controlled substance (as defined in section 802 of title 21)” of the U.S. Code, 8 U.S.C. 1229b(b)(1)(C), 1182(a)(2)(A)(i)(II), 1227(a)(2)(B)(i). Section 802 defines “controlled substance” as any substance included in federal controlled substance schedules. Chamu unsuccessfully sought to have his Florida cocaine possession conviction vacated, then argued that the Florida statute was too broad to bar his cancellation request. The IJ and BIA rejected his argument, reasoning that Chamu had not shown a realistic probability that the Florida statute would be enforced more broadly than the federal statutes. The Eleventh Circuit agreed. Florida’s definition of cocaine may not be completely consistent with the federal definition but Chamu failed to prove that it covers more substances. No illicit-nature mens rea is necessary to trigger removal consequences for offenses listed under 8 U.S.C. 1182(a)(2)(A)(i)(II) and 1227(a)(2)(B)(i). View "Chamu v. U.S. Attorney General" on Justia Law

The Fifth Circuit dismissed a petition for review of the BIA's decision finding petitioner subject to removal because he committed two crimes involving moral turpitude (CIMTs) under 8 U.S.C. 1227(a)(2)(A)(ii). After determining that res judicata does not bar the proceedings, the court concluded that petitioner's conviction for deadly conduct qualified as a CIMT because reckless offenses may constitute CIMTs and deadly conduct, which requires an offender to take actions creating imminent danger or serious physical injury, is categorically a CIMT. The court also concluded that petitioner's 2005 adjustment to lawful permanent resident status constitutes the operative admission for purposes of this removal proceeding under section 1227(a)(2)(A)(ii). Therefore, because petitioner's convictions for deadly conduct and evading arrest occurred after he adjusted his status, he has been convicted of two CIMTs after admission to the United States. View "Diaz Esparza v. Garland" on Justia Law

Togonon, a citizen of the Philippines, was admitted to the U.S. as a lawful permanent resident. He was later convicted of arson (California Penal Code 451(b)). DHS initiated removal proceedings under 8 U.S.C. 1227(a)(2)(A)(iii) based on his conviction for "an aggravated felony," “an offense described in” 18 U.S.C. 844(i). The BIA upheld a removal order.The Ninth Circuit vacated. The California statute is not a categorical match to its federal counterpart, under which a defendant acts “maliciously” if he either intentionally damages or destroys property covered by section 844(i) or acts with “willful disregard” of the likelihood that damage or injury would result from his acts; acting with “willful disregard” requires that a defendant be subjectively aware of the risk that his actions will damage or destroy property. California courts have interpreted the term “maliciously” in section 451(b) more broadly. A defendant may be convicted under the California statute for engaging in an intentional act that results in the burning of an inhabited structure or property even if he was not subjectively aware of the risk that his actions would result in that harm. View "Togonon v. Garland" on Justia Law

Fuentes-Rodriguez pleaded guilty to illegally reentering the U.S. after having been previously convicted of an aggravated felony (8 U.S.C. 1326(b)(2)) and was sentenced to 30 months’ imprisonment. The Fifth Circuit affirmed that his underlying felony conviction for family-violence assault under Texas Penal. Code 22.01(a)(1) constituted an aggravated felony. While his certiorari petition was pending, the U.S. Supreme Court decided in "Borden" (2021) that a crime capable of commission with “a less culpable mental state than purpose or knowledge,” such as “recklessness,” cannot qualify as a “violent felony” under 18 U.S.C. 924(e)(2)(B)(i) of the Armed Career Criminal Act (ACCA). Fuentes-Rodriguez’s underlying Texas conviction qualifies as an aggravated felony only through 18 U.S.C. 16(a),2 which defines a “crime of violence” almost identically to the ACCA’s “violent felony” provision. On remand, the Fifth Circuit vacated. Fuentes-Rodriguez should not have been sentenced under 8 U.S.C. 1326(b)(2) because Texas’s family-violence assault can be committed recklessly but his conviction falls within 8 U.S.C. 1326(b)(1), which covers illegal reentry after conviction for a non-aggravated felony. The district court’s judgment should be reformed because section 1326(b)(2) is associated with worse collateral consequences than section 1326(b)(1). Remanding for entry of an amended judgment by the district court will reduce the risk of future confusion. A reformed judgment should reflect that Fuentes-Rodriguez was convicted and sentenced under 8 U.S.C. 1326(b)(1) as an “Alien Unlawfully Found in the United States after Deportation, Having Previously Been Convicted of a Felony.” View "United States v. Fuentes-Rodriguez" on Justia Law

Abdelsalam came to the U.S. in 2017 on a fiance visa. His fiance, Mona, discovered that Abdelsalam had other relationships and was planning to divorce her as soon as he gained citizenship and reported him to immigration authorities. Abdelsalam subsequently physically injured and threatened Mona and burglarized her house. He pled guilty to making criminal threats. The trial court orally told him that, as a result of the conviction, he would be deported. He was also advised in writing that he would be deported. His attorney reviewed the immigration consequences of the plea with Abdelsalam, who orally acknowledged that he understood those consequences, and stated that he would “wait for immigration.”After deportation proceedings were initiated, Abdelsalam claimed he never understood that he would be deported and should be allowed to withdraw his plea. The court of appeal affirmed the denial of the motion to withdraw the plea, finding it unsupported by the record. A defendant cannot be told repeatedly that his plea will result in deportation, confirm he understood, present no contrary evidence from the attorney who advised him, and then withdraw the plea with the claim that he did not understand he would be deported. View "People v. Abdelsalam" on Justia Law

The Fifth Circuit denied the petition for review challenging the BIA's determination that petitioner is statutorily ineligible for withholding of removal and not entitled to protection under the Convention Against Torture (CAT). The court concluded that the BIA did not err by holding that the 2019 IJ could reexamine whether petitioner's felony assault conviction was a particularly serious crime. After determining that the court had jurisdiction to review petitioner's alternative argument, the court concluded that the BIA did not err in determining on the merits that petitioner was ineligible for withholding of removal because his felony assault conviction was a particularly serious crime. Finally, the court concluded that a foreign government's "failure to apprehend the persons threatening the alien" or "the lack of financial resources to eradicate the threat or risk of torture" do not constitute sufficient state action for petitioner to be entitled to protection under the CAT. View "Aviles-Tavera v. Garland" on Justia Law

The Ninth Circuit filed (1) an order withdrawing the opinion and dissent filed on June 23, 2021, denying a petition for panel rehearing, and denying on behalf of the court a petition for rehearing en banc; and (2) an amended opinion denying the petition for review of a decision of the BIA.In the amended opinion, the panel held that, in determining whether a conviction satisfies the thirty-gram limit of the personal-use exception to the ground of removability based on drug convictions, the circumstance-specific approach applies to determining the amount of marijuana involved in the conviction. In this case, the circumstance specific to petitioner clearly established that the amount of marijuana in his possession exceeded thirty grams. View "Bogle v. Garland" on Justia Law