Justia Immigration Law Opinion Summaries

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

The Ninth Circuit granted the petition for review of the BIA's decision agreeing with the IJ that petitioner's convictions were crimes involving moral turpitude (CIMTs) and that she was not entitled to cancellation of removal. The panel concluded that petitioner's convictions are not CIMTs and therefore she was not removable under 8 U.S.C. 1227(a)(2)(A)(ii).In 2010, petitioner was convicted of solicitation to possess for sale less than two pounds of marijuana, in violation of Ariz. Rev. Stat. 13-1002 (solicitation), 13-3405(A)(2) (possession for sale), and (B)(4) (less than two pounds). Shortly thereafter, petitioner was convicted of offering to transport less than two pounds of marijuana for sale, in violation of Ariz. Rev. Stat. 13-3405(A)(4) (offer to transport) and (B)(10) (less than two pounds). The panel concluded that Arizona Revised Statutes 13-3405(A)(4), which prohibits certain conduct relating to marijuana, is overbroad and divisible; petitioner's section 13-3505(A) convictions, which involved categories in the statute involving the smallest quantity of marijuana, were not CIMTs; and petitioner was therefore not removable. View "Walcott v. Garland" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision dismissing petitioner's appeal of the IJ's order pretermitting his application for cancellation. The BIA held that petitioner failed to establish that he had not been convicted of offenses with an aggregate sentence of at least 5 years.The panel concluded that the phrase "an offense" in 8 U.S.C. 1229b(b)(1)(C) includes the multiple criminal convictions described in 8 U.S.C. 1182(a)(2)(B) that render an alien inadmissible. The panel rejected petitioner's contention that because the statutory disqualification is phrased in the singular, his multiple offenses do not trigger ineligibility. The panel also rejected petitioner's contention that the BIA erred in finding that his multiple convictions resulted in aggregated sentences of at least five years because the agency relied on the 2013 judgment, a record not clearly related to petitioner. Rather, substantial evidence supports the agency's determination that petitioner did not satisfy his burden to show that he had not been convicted of the qualifying offenses. View "Ramirez-Medina v. Garland" on Justia Law

The Eleventh Circuit concluded that the conditions of petitioner's supervision program render her "in custody" within the meaning of 28 U.S.C. 2241, such that the district court had jurisdiction to consider her habeas petition. The court also concluded that petitioner did not validly self-execute the 1995 deportation order when, shortly before it was entered, she voluntarily left the United States. Whether the court resolved 8 U.S.C. 1101(g)'s ambiguity through the principle of lenity or through Chevron deference, the court reached the same conclusion: Section 1101(g)'s two conditions operate successively. In this case, petitioner left the Untied States before she was ordered removed and thus she was not "deported or removed" within the meaning of Section 1101(g). Accordingly, the government may lawfully deport her under the still-operative 1995 order. View "Argueta Romero v. Secretary, U.S. Department of Homeland Security" on Justia Law

Cobian first entered the U.S. in 1999. In 2004, he was returned to Mexico after being convicted of DUI. In 2016, Cobian, with his wife and children, presented himself to seek asylum. Cobian was separated from his family and given Notice of Expedited Removal. He sought asylum. Officers provided him with English and Spanish explanations of the credible fear interview process, detention protocols, his rights, and the consequences of removal. Cobian explained that he had been kidnapped for ransom in Mexico and was again being targeted; his captors, allegedly gang members, cut off his finger and sent it to his wife. The asylum officer ruled against Cobian and explained the right to appeal. Cobian declined because he did not want to remain in detention, unable to contact his family. Cobian was deported to Mexico but, in 2018, attempted reentry, and was deported.In 2019, Cobian was again found in the U.S. and was charged with illegal reentry, 8 U.S.C. 1326. Cobian argued that the predicate expedited removal order was entered in violation of his due process rights and even if he waived his right to appeal the asylum claim, his waiver was not considered and intelligent. The Ninth Circuit affirmed the denial of his motion to dismiss. Administrative remedies must be exhausted before an order of removal can be collaterally challenged in a subsequent criminal prosecution for re-entry. Cobian made a considered and intelligent decision to waive his right to appeal the negative credible fear finding. View "United States v. De la Mora-Cobian" on Justia Law

Prasad owned and operated Maremarks, through which he filed petitions seeking H-1B status for nonimmigrant, foreign workers in specialty occupations to come to the U.S. as Maremarks’ employees performing work for Maremarks’ clients. Prasad falsely represented in the H-1B petitions that there were specific, bona fide positions available for the H-1B beneficiaries. Prasad was convicted of 21 counts of visa fraud, 18 U.S.C. 1546(a), and two counts of aggravated identity theft, 18 U.S.C. 1028A(a)(1). The district court ordered forfeiture under 18 U.S.C. 982(a)(6)(A)(ii): $1,193,440.87.The Ninth Circuit affirmed, rejecting Prasad’s argument that he did not “obtain” the entire $1,193,440.87 because he eventually paid portions of the money to the H1B beneficiaries. Prasad possessed the full $1,193,440.87 paid by the end-clients and had control over the money before he paid a percentage of it to employees. Considering the term “proceeds” in the context of the forfeiture statute, the statute’s punitive purpose, and its prior construction of virtually identical criminal forfeiture provisions, the court concluded that the term extends to receipts and is not limited to profit. Although the H-1B beneficiary employees performed legitimate work for end-clients, the portions of the money that Maremarks received for that work and subsequently paid to the beneficiary employees was, nonetheless, “obtained directly or indirectly from” Prasad’s unlawful conduct. View "United States v. Prasad" on Justia Law