Justia Immigration Law Opinion Summaries

The Ninth Circuit withdrew its prior opinion and filed a new opinion concurrently with this order. The panel denied defendant's petition for rehearing en banc as moot.The panel reversed the district court's dismissal of an indictment charging defendant of illegal reentry after removal in violation of 8 U.S.C. 1326. The panel applied the majority's holding in its recently published opinion in United States v. Bastide-Hernandez, —F.3d —, 2021 WL 345581 (9th Cir. 2021), which held that the jurisdiction of the immigration court vests upon the filing of the Notice to Appear (NTA), even one that does not at the time inform the alien of the time, date, and location of the hearing.The panel concluded that defendant's argument is foreclosed by United States v. Palomar-Santiago, 141 S. Ct. 1615, 1622 (2021). Therefore, the panel held that defendant has failed to show that he can satisfy the section 1326(d) requirements based simply on the NTA's lack of date and time information, standing alone. Therefore, he is foreclosed from making that argument on remand. The panel explained that defendant may collaterally attack the underlying order on remand on other grounds, but only if he can meet all the requirements of section 1326(d). Accordingly, the panel remanded for further proceedings. View "United States v. Gonzalez-Valencia" on Justia Law

The Fifth Circuit denied the petition for review of the BIA's decision affirming the IJ's denial of petitioner's application for cancellation of removal because petitioner's prior Texas conviction for delivering cocaine, in violation of Texas Health and Safety Code 481.112, is included in the Controlled Substances Act (CSA).The court concluded that the rule of orderliness does not apply to the court's previous reliance on the government's concession that an offer to sell falls outside the CSA. Because there is no binding precedent, the court held that section 481.112's offer-to-sell theory falls within the CSA, which makes it unlawful for any person knowingly or intentionally to distribute a controlled substance. The court explained that section 481.112's offer-to-sell theory requires (1) the requisite culpability and (2) a substantial step. Therefore, it falls within the CSA's definition of an attempted transfer. View "Ochoa-Salgado v. Garland" on Justia Law

The Eighth Circuit granted a petition for review of the BIA's order determining that petitioner was removable because his prior conviction for enticing a minor under Iowa law was a "crime of child abuse." Applying the categorical approach, the court concluded that the Board's decision cannot be upheld on the rationale advanced by the government because it conflates two separate elements in the Iowa statute. Looking only at the plain text of the Iowa statute, the court cannot exclude the possibility that an offender could be prosecuted for enticing a minor with intent to commit disorderly conduct or harassment upon a minor. Furthermore, the Board's decision is not clear about how it understood the "realistic probability" requirement. Accordingly, the court vacated the Board's decision and remanded for further proceedings. View "Pah Peh v. Garland" on Justia Law

Defendant Sigifredo Zendejas Lopez (Lopez) brought a motion pursuant to California Penal Code section 1018 to vacate his 2019 guilty plea on three felony counts, one of which would have lead to almost certain deportation under federal law. Lopez, who was a lawful permanent resident of the United States at the time of his conviction, argued his retained trial counsel failed to provide accurate and affirmative advice about the immigration consequences of the proposed plea. Lopez’s trial counsel testified at the hearing on the motion that he was not aware of the specific immigration consequences of the individual charges Lopez was facing. Therefore, he could not have provided accurate and affirmative advice as to the consequences of a guilty plea to any particular count. Moreover, trial counsel testified that he tried to negotiate a plea bargain to one misdemeanor count, which was rejected by the prosecution. Had he known the immigration consequences of the specific felony counts, there was some possibility that he could have negotiated an immigration-neutral plea offer the prosecution was more likely to accept. But as he admitted, he did not know those consequences. The Court of Appeal determined Lopez was prejudiced by this course of events. He submitted evidence that he would have taken his chances at trial if he had known and fully understood the immigration consequences of the plea agreement trial counsel negotiated. Because Lopez was not accurately and affirmatively advised, and because there was not an effort to negotiate an acceptable plea bargain with the relevant immigration consequences in mind, the Court reversed the trial court’s order denying the motion to withdraw Lopez’s guilty plea in the interests of justice. View "California v. Lopez" on Justia Law

Calan-Montiel, a citizen of Mexico, entered the U.S. without inspection and was ordered removed. He was returned to Mexico. He came back, again evading inspection, and was caught again in 2019. Convicted under 8 U.S.C. 1326, for reentering without permission, after a removal order, he was sentenced to 16 months' imprisonment. He argued that his first removal was unlawful because his Notice to Appear did not contain the information required by statute.The Seventh Circuit affirmed. A removal order that serves as the basis of a section 1326 prosecution is subject to collateral attack only if the alien demonstrates that he exhausted any administrative remedies that may have been available, the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and the entry of the order was fundamentally unfair. Noncompliance with the one document rule is not a jurisdictional defect in a removal proceeding. There is nothing unfair, “fundamentally or otherwise, about using two documents to provide information.” Calan-Montiel does not deny that he had actual knowledge of the removal order. He could have asked to reopen the proceedings, or sought judicial review, even after being removed. His actions make it impossible to satisfy section 1326(d), even if the agency erred in sending notice of the hearing’s date. View "United States v. Calan-Montiel" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision concluding that petitioner's forgery conviction under California law constitutes an aggravated felony. The panel held that petitioner's forgery conviction under section 470a of the California Penal Code categorically constitutes an aggravated felony offense relating to forgery under 8 U.S.C. 1101(a)(43)(R), thus rendering him ineligible for voluntary departure. In this case, the panel applied the categorical approach and compared the elements of section 470a with the generic, common law definition of forgery. The panel disagreed that photocopying a driver's license with the intent "to facilitate the commission of any forgery" falls outside the generic definition of forgery. The panel looked to Vizcarra-Ayala v. Mukasey, 514 F.3d 870 (9th Cir. 2008), as a helpful comparison. The panel explained that a person who takes the affirmative step to photocopy a genuine document with the intent to deceive has made a false instrument—an action that falls squarely within the generic definition of forgery. Therefore, section 470a is categorically an offense relating to forgery under section 101(a)(43)(R). View "Escobar Santos v. Garland" on Justia Law

The Fifth Circuit denied a petition for review an order of removal based on defendant's conviction of online solicitation of a minor. In this case, an IJ terminated petitioner's removal proceedings, but the BIA partially vacated the IJ's decision and remanded for further proceedings. On remand, the IJ ordered petitioner removed.After determining that the court has jurisdiction to consider the petition for review, the court concluded that the BIA did not err in finding petitioner removable under 8 U.S.C. 1227(a)(2)(E)(i) for a crime of child abuse. The court explained that Garcia v. Barr, 969 F.3d 129, 132 (5th Cir. 2020), foreclosed petitioner's argument that the court should not give deference to the BIA's broad interpretation of a "crime of child abuse" under section 1227(a)(2)(E)(i). The court agreed with the BIA that petitioner's conviction for online solicitation of a minor in violation of section 33.021(c) of the Texas Penal Code falls within the BIA's definition of a crime of child abuse. View "Adeeko v. Garland" on Justia Law

Parzych, a 58-year-old Polish citizen, was admitted to the U.S. as a lawful permanent resident in 1967. He was convicted of burglary in Illinois in 2011 and again in 2015 for knowingly and without authority remaining in buildings (storage lockers) with intent to commit theft. He was charged as removable for committing aggravated felonies of burglary and crimes involving moral turpitude, 8 U.S.C. 1101(a)(43)(G), 1227(a)(2)(A)(ii)–(iii), and for committing aggravated felonies of attempted theft, sections 1101(a)(43)(G), (U), 1227(a)(2)(A)(ii)–(iii).The “categorical approach” to determine whether a state-law conviction qualifies as a removable offense compares the elements listed in the statute of conviction with the generic elements of the crime. When a statute of conviction proscribes some types of conduct that would constitute removable offenses and some that would not and is divisible, the “modified categorical approach” applies; a court may consult a limited class of documents to determine which alternative formed the basis of the conviction and compare it to the generic offense.An IJ applied the categorical approach and found that the location and intent elements of the Illinois statute were broader than the removable offenses of burglary and attempted theft. The Board reversed, finding the statute divisible. On remand, the IJ found Parzych removable. The Board affirmed that Parzych was removable for committing aggravated felonies of attempted theft and crimes of moral turpitude under the modified categorical approach. The Seventh Circuit vacated and remanded. The Illinois burglary statute is not divisible and the modified categorical approach does not apply. View "Parzych v. Garland" on Justia Law

Bashir Bare Abdi appealed a district court order denying his application for post-conviction relief, seeking to withdraw his guilty plea. Abdi was charged with luring minors in violation of N.D.C.C. 12.1-20- 05.1, a class B felony, on January 30, 2019. This charge resulted from Abdi’s alleged communications with a person he believed to be a fourteen year-old girl, but was in fact an undercover agent, after Abdi arranged to engage in sexual activity with her in exchange for a candy bar. On appeal, Abdi argued the court erred because he received ineffective assistance of counsel, and as a result his plea was not knowingly, intelligently, and voluntarily made. Specifically, Abdi argued he would not have entered a plea of guilty had he been properly advised on the virtual certainty of deportation. Finding no reversible error, the North Dakota Supreme Court affirmed. View "Abdi v. North Dakota" 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 of removal and denial of his application for cancellation of removal.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. Applying that approach to petitioner's case, the panel concluded that the circumstances specific here clearly establish that petitioner knowingly possessed more than thirty grams of marijuana. In this case, the police report is detailed, is internally consistent, and records observations of fact rather than the officers' conclusions. The report states that the "green leafy material" found in the three bags "tested positive for marijuana," and provides the precise weight of each. Given that petitioner did not specifically contest the measurements of quantity in the report, holding such a report to be insufficient would be essentially the same as holding that no police report is sufficient, standing alone, to demonstrate that a petitioner possessed more than thirty grams of marijuana. The panel declined to adopt such a categorical rule. Therefore, viewing the circumstances together, the evidence clearly establishes that petitioner possessed more than thirty grams of marijuana. View "Bogle v. Garland" on Justia Law