Justia Immigration Law Opinion Summaries

Jenifer Miladis Alvarado-Diaz and Magdaly Suleydy Perez-Velasquez appealed the district court’s affirmance of their convictions for entering the United States in violation of 8 U.S.C. 1325(a)(1). Alvarado and Perez crossed the U.S.-Mexico border into New Mexico by walking around a fence, miles away from the nearest designated port of entry. Alvarado was stopped by a border patrol agent after she made it about 180 yards past the border, and a border patrol agent saw Perez just as she walked into the country. Each was detained. Alvarado and Perez admitted to the agents that they were nationals of El Salvador and Guatemala, respectively, and had no authorization to enter the country. They contended “enter” was a term of art that required more than a physical intrusion; it also required “freedom from official restraint” and “inspection or intentional evasion of inspection.” The district court affirmed the convictions because, even assuming freedom from official restraint was required for an “entry,” the Defendants were not under official restraint. The defendants argued they were under official restraint because they had been continuously surveilled, but the court noted that continuous surveillance alone did not equate to restraint. On appeal to the Tenth Circuit, defendants reiterated arguments made at the district court. The Tenth Circuit rejected these arguments and affirmed the district court's judgment. View "United States v. Perez-Velasquez" on Justia Law

In the mid-2000s, Carlos Argenis Figueroa Alatorre was working as a car salesperson when he lost his job. Although he knew his brother-in-law, Luis, was involved in something unsavory, Alatorre began working for him, acting as a lookout and a driver for about two months before the United States Department of Justice closed in on Luis’s drug importation ring, arresting Alatorre along with several others at a border patrol checkpoint. In the wake of the arrest, Alatorre was forthcoming about his involvement. He had already been in jail for a year and a half, awaiting his trial, when he was offered a plea deal that would allow him to be released from custody with credit for time served. So in 2008, at the age of 24, he pleaded guilty to his first and only criminal charge: conspiracy to possess cocaine for sale. Alatorre did not know this conviction would render him immediately deportable. He had come to the United States from Mexico when he was just four years old, and lived here as a permanent resident. In 2011, three years after his plea, he attempted to become a naturalized citizen, which had the unintended consequence of alerting immigration authorities to his criminal conviction. Within a few months, he was deported to Mexico. Alatorre lived in Mexicali after that, taking any available work he could find. Although his children, who are both U.S. citizens, were usually able visit him on the weekends, he was separated from his wife and children, parents, four siblings, and dozens of nieces, nephews, and cousins—all of whom lived in the U.S. In early 2020, Alatorre moved to vacate his conviction, only to have the trial court deny it as untimely based on a finding that he did not exercise “reasonable diligence” to become aware of the existence of the statutory remedy after the law became effective. The question posed by this case was how a petitioner’s “reasonable diligence” should be evaluated when the ripening of an unexpected immigration consequence predates the creation of an avenue of relief. After considering the text, history, and purpose of Penal Code section 1473.7, the Court of Appeal reversed the trial court’s ruling, finding that it applied an incorrect legal standard when it assumed Alatorre was obligated to learn about section 1473.7 starting in January 2017, when the section became effective. As to the merits of his request, the Court found he established prejudicial error within the meaning of section 1473.7, and remanded to the trial court with instructions to issue an order granting the motion. View "California v. Alatorre" on Justia Law

The Second Circuit denied petitions for review of the BIA's decisions affirming the IJ's order of removal and denial of Petitioner Graham's motion to reopen. The court concluded that petitioners' narcotics convictions under Connecticut General Statute 21a-277(a) are controlled substance or aggravated felony drug trafficking offenses under the Immigration and Nationality Act. The court also concluded that its jurisdictional holding in Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir. 2019), that a notice to appear that omits the hearing date and time is nonetheless sufficient to vest jurisdiction in the immigration courts, survives the Supreme Court's ruling in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). View "Chery v. Garland" on Justia Law

Americans and co-conspirators based in China schemed to obtain EB-1C work visas fraudulently for Chinese nationals. Their clients each deposited about $300,000 into a client-owned American bank account. The government did not prosecute the Chinese clients but sought forfeiture of the funds. The Chinese nationals filed claims for the funds.The State Department denied visa requests to allow certain Chinese nationals to attend the forfeiture trial. The U.S. Attorney unsuccessfully worked with their attorney and DHS to obtain parole letters granting them entry without a visa. The Chinese argued that their inability to attend violated the Due Process Clause by preventing them from presenting an “innocent owner” defense, 18 U.S.C. 983(d)(1). The district court denied the motion, noting other means to present their testimony, such as by video conference, and that counsel could present their defenses. All the Chinese were represented by counsel at trial; four attended and testified. The court instructed the jury that the government bore the burden of proving that the “funds made the . . . visa fraud scheme easy or less difficult or ensured that the scheme would be more or less free from obstruction or hindrance.”The jury found that the government had satisfied its burden of proof as to all the funds, that five Chinese nationals—four of whom had testified—had proved that they were innocent owners, and rejected the remaining innocent-owner defenses. The Eleventh Circuit affirmed, finding no due process violation. View "United States v. Approximately $281,110.00 Seized from an East-West Bank Account, ending in the number 2471" on Justia Law

In 2011, Campos-Rivera, a citizen of Mexico, was convicted of Illinois state felonies He was removed but reentered and was apprehended in 2018. Charged with unlawfully reentering the U.S. after removal, 8 U.S.C. 1326(a), he was initially represented by an assistant public defender. Counsel was allowed to withdraw at Campos-Rivera’s request based on an irreconcilable conflict. A new lawyer was appointed. Campos-Rivera then filed multiple pro se motions raising issues that his new attorney declined to pursue. The judge told him that he could not proceed pro se and through counsel. Campos-Rivera asked the judge to dismiss his attorney and appoint a third. The judge declined, giving Campos-Rivera a choice: move forward with his current lawyer or proceed pro se. Campos-Rivera chose the latter. The judge then denied the pro se motions and later found Campos-Rivera guilty.The Seventh Circuit affirmed. A disagreement between attorney and client over pretrial motions is not grounds for the appointment of a new attorney. Campos-Rivera validly waived his right to counsel; the judge conducted a comprehensive waiver colloquy to ensure that the decision was fully informed and voluntary. Campos-Rivera’s challenge to the sufficiency of the evidence fails because section 1326(a) is a general-intent crime. The government need only prove that the defendant knowingly reentered the U.S., not that he intended to do so unlawfully. The stipulated facts support an inference of knowing reentry. No specific factual finding regarding the intent element was necessary. View "United States v. Campos-Rivera" on Justia Law

In 1997, with the help of an interpreter, defendant Estaban Bravo pleaded guilty to, and was convicted on, a plea bargain agreement of: a felony violation of domestic violence (count 1); and felony violation of child cruelty (count 2). The trial court sentenced defendant to two years’ incarceration, suspended, and placed him on formal probation for 36 months on terms and conditions including 25 days’ custody, for which he was granted time served. In 2018, defendant moved to vacate the judgment pursuant to Penal Code sections 1016.5 and 1473.7. In 2019, the trial court denied the motion. In late 2020, following defendant’s appeal of the trial court’s decision, the Court of Appeal affirmed. In March 2021, the California Supreme Court granted review, and in May issued California v. Vivar, 11 Cal.5th 510 (2021), disapproving of the appellate court’s opinion in Bravo. The Supreme Court transferred the appeal in Bravo back to the Court of Appeal with directions to vacate the decision and reconsider the matter in light of Vivar. Defendant stated that the immediate advantage of his plea was that he would be released from custody that same day so that he could return to his construction job without being fired and could therefore support his spouse and their child. Defendant stated he was informed by counsel and the prosecution that Immigration and Customs Enforcement (ICE) would conduct a sweep of the county jail where he was being held by the next morning; being released that afternoon allowed him to avoid the ICE sweep and likely deportation as a result of that encounter. Before the Court of Appeal, defendant contended that at the time he executed the plea agreement, he was unaware of future immigration consequences of his plea, and had he known, he would not have executed the agreement. After reconsideration, the Court of Appeal found that notwithstanding its sufficiency to meet the statutory language of section 1016.5, the advisement on defendant’s 1997 plea agreement was inadequate to advise him of the mandatory immigration consequences of his plea. "In such cases, '[d]efendants must be advised that they will be deported, excluded, and denied naturalization as a mandatory consequence of the conviction." However, "a defendant's self-serving statement - after trial, conviction and sentence... must be corroborated independently by objective evidence." Here, notably, defendant offered no statement or declaration by his trial counsel or any other contemporaneous evidence other than the statements in his declaration to support that claim. Accordingly, there was no supportable reason for defendant to believe the court would accept an immigration-neutral alternative charge. The Court held the trial court did not abuse its discretion in denying defendant's section 1473.7 application; judgment was therefore affirmed. View "California v. Bravo" on Justia Law

The issue this interlocutory appeal presented for the Vermont Supreme Court's review centered on whether evidence seized by federal Border Patrol agents during a roving patrol (pursuant to their authority to conduct warrantless searches under 8 U.S.C. 1357) was admissible in a state criminal proceeding when that search did not comply with Article 11 of the Vermont Constitution. Defendants Phillip Walker-Brazie and Brandi-Lena Butterfield argued that because the overwhelming purpose of Vermont’s exclusionary rule was to protect individual liberty, the Supreme Court should apply the exclusionary rule and suppress the evidence pursuant to Article 11. To this the Supreme Court agreed, holding that such evidence is inadmissible in Vermont criminal proceedings. View "Vermont v. Walker-Brazie" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's order of removal. The panel addressed the same issue that arose in Martinez-Cedillo v. Sessions, 896 F.3d 979 (9th Cir. 2018), and held that California Penal Code 273a(a) does not qualify as a crime of child abuse, child neglect, or child abandonment.The panel concluded that the text of 8 U.S.C. 1227(a)(2)(E)(i) unambiguously forecloses the BIA's interpretation of "a crime of child abuse, child neglect, or child abandonment" as encompassing negligent child endangerment offenses. The panel noted that, while several of its sister circuits have deferred to the BIA's decision in Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010), the panel found those decision both distinguishable and unpersuasive. The panel explained that, because section 273a(a) criminalizes conduct that falls outside the generic federal definition, it is not a categorical match for "a crime of child abuse, child neglect, or child abandonment." View "Diaz-Rodriguez v. Garland" on Justia Law

The Third Circuit denied a petition for review challenging the BIA's ruling that petitioner's conviction for aggravated identity theft in violation of 18 U.S.C. 1028A(a)(1) is a crime involving moral turpitude (CIMT), thus making him removable pursuant to 8 U.S.C. 1227(a)(2)(A)(ii). The court applied the modified categorical approach and concluded that petitioner pleaded guilty to violating section 1028A with the predicate felony of bank fraud, an undeniable CIMT. The court explained that that, by itself, is sufficient to support the BIA's ruling that petitioner's 1028A(a)(1) conviction constituted a CIMT because it requires fraudulent intent. Because this conviction is petitioner's second CIMT, the court concluded that the BIA did not err in concluding that he is removable under section 1227 (a)(2)(A)(ii). View "Sasay v. Attorney General of the United States" on Justia Law

The Eleventh Circuit denied a petition for review challenging the BIA's dismissal of petitioner's appeal from the IJ's removal order. The court concluded that each of petitioner's two Georgia convictions for simple battery was a crime of violence for which the term of imprisonment was at least one year, within the meaning of 8 U.S.C. 1101(a)(43)(F). Therefore, petitioner was convicted of two "aggravated felonies," as that term is defined in the Immigration and Naturalization Act, and is ineligible for cancellation of removal. View "Talamantes-Enriquez v. U.S. Attorney General" on Justia Law