Justia Immigration Law Opinion Summaries

The Eighth Circuit granted a petition for review of the denial of petitioner's application for cancellation of removal. The court held that petitioner's 2003 Missouri marijuana conviction is not a categorical match for the corresponding federal offense in 8 U.S.C. 1101(a)(43)(B), and thus the 2006 conviction for illegal reentry under 8 U.S.C. 1326 does not qualify as an aggravated felony under 8 U.S.C. 1101(a)(43)(O). Therefore, petitioner is not statutorily ineligible for cancellation of removal and the court remanded for further proceedings. View "Lopez-Chavez v. Garland" on Justia Law

The Eighth Circuit denied a petition for review of the BIA's order upholding the IJ's decision to deport and remove petitioner to Somalia and denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).The court concluded that the BIA did not err in determining that petitioner's second-degree felony assault conviction is a particularly serious crime that bars statutory withholding of removal. The court also concluded that the IJ and the BIA did not err in finding that the particularly serious crime bar foreclosed petitioner's relief for withholding of removal under the CAT. Finally, the court need not address the likelihood that petitioner will be tortured because substantial evidence supports the IJ and the BIA's finding that his torture would not be directed by or acquiesced to by the Somali government. View "Jama v. Wilkinson" on Justia Law

Ethiopian native, petitioner Thewodros Wolie Birhanu petitioned the Tenth Circuit Court of Appeals for review of a final order of removal issued by the Board of Immigration Appeals (“BIA”). The BIA dismissed Birhanu’s appeal of the Immigration Judge's (“IJ”) decision finding him removable. The BIA and the IJ found: (1) Birhanu was removable as an alien convicted of two or more crimes involving moral turpitude (“CIMTs”) not arising out of a single scheme of criminal misconduct; (2) he was not entitled to asylum or withholding of removal because his convictions qualified as particularly serious crimes; and (3) he was not entitled to relief under the Convention Against Torture (“CAT”). The Tenth Circuit dismissed Birhanu's claims under Section 504 of the Rehabilitation Act as unexhausted, and denied the balance of his petition for review on the merits. View "Birhanu v. Wilkinson" on Justia Law

The Eighth Circuit held that the categorical approach does not require a petitioner seeking cancellation of removal to demonstrate both that the state offense he was convicted of is broader than the federal offense and that there is a realistic probability that the state actually prosecutes people for the conduct that makes the state offense broader than the federal offense. Rather, the categorical approach requires a petitioner seeking cancellation of removal to demonstrate that the state offense he was convicted of is broader than the federal offense.In this case, the BIA erred in finding that petitioner was ineligible for cancellation of removal on the basis of his Florida conviction for possession of marijuana. The court explained that the Florida statute is unambiguously broader than the federal law referenced in 8 U.S.C. 1229b(b)(C), and this was all that petitioner was required to show under the categorical approach. Furthermore, because the BIA did not properly consider the IJ's alternative grounds for denying relief, those issues are not properly before the court. The court granted the petition for review, vacated, and remanded for further proceedings. View "Gonzalez v. Wilkinson" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision holding that petitioner's 1999 conviction for simple possession of cocaine in violation of California Health and Safety Code 11350 qualifies as a "controlled substance offense," thereby rendering him removable under section 237(a)(2)(B)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. 1227(a)(2)(B)(i).Although California Health and Safety Code 11350, by its terms, applies to a broader range of "controlled substance[s]" than the narrower federal definition that governs under section 237(a)(2)(B)(i), the panel agreed with the BIA that petitioner's conviction nonetheless qualifies under the so-called "modified categorical" approach to analyzing prior convictions. Applying this approach, the panel concluded that section 11350 is a "divisible" statute that defines multiple alternative offenses, depending upon which controlled substance was possessed. In this case, because petitioner's conviction under section 11350 was for possession of cocaine, and because cocaine qualifies as a "controlled substance" under the applicable federal definition, it follows that petitioner was convicted of an offense "relating to a controlled substance" within the meaning of section 237(a)(2)(B)(i). Therefore, the panel concluded that petitioner was properly ordered to be removed from the United States. View "Lazo v. Wilkinson" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision affirming the IJ's denial of immigration relief to petitioner. The panel held that a conviction for importing, manufacturing, or dealing in firearms without a license, 18 U.S.C. 922(a)(1)(A), is categorically an "illicit trafficking in firearms" aggravated felony under 8 U.S.C. 1101(a)(43)(C). Therefore, petitioner is ineligible for asylum based on his conviction under section 922(a)(1)(A). In this case, the panel deferred to the BIA's interpretation of "illicit trafficking" in Matter of Davis, 20 I. & N. Dec. 536 (BIA 1992), that illicit trafficking in a controlled substance – another aggravated felony – includes any felony conviction involving the "unlawful trading or dealing of any controlled substance." The panel explained that section 922(a)(1)(A) is a categorical match to "illicit trafficking in firearms" under section 1101(a)(43)(C). View "Chacon v. Wilkinson" on Justia Law

In 2007, Juan Rodriguez, a non-citizen, entered a plea agreement in San Diego County that avoided any adverse immigration consequences. After the plea was entered, but before sentencing, Rodriguez was arrested and jailed for another crime in Riverside County. As a result of that arrest, Rodriguez did not appear at the scheduled sentencing hearing. He later agreed to be sentenced in absentia, and the court imposed a sentence subjecting Rodriguez to deportation. Deportation proceedings were initiated after Rodriguez’s release from custody and remain ongoing. In 2019, after amendments to Penal Code section 1473.7, Rodriguez moved to vacate his conviction on the grounds that he had not been sufficiently advised of the immigration consequences he faced. After an evidentiary hearing, the court denied the motion. Rodriguez challenged that decision, asserting the court erred by finding he meaningfully understood he would become deportable as a result of the plea. The Court of Appeal concluded the evidence supported Rodriguez’s motion. The Court thus reversed and remanded with directions to the trial court to grant Rodriguez’s motion to vacate the conviction. View "California v. Rodriguez" on Justia Law

Defendant was charged in a two-count superseding indictment with violating 18 U.S.C 1546(a) by allegedly using a fraudulent order of supervision to obtain a driver's license from the Florida Department of Highway Safety and Motor Vehicles (Florida DHSMV). Defendant moved to dismiss the superseding indictment for failing to state an offense under section 1546(a), arguing that the term "authorized stay" means "lawful presence" in the United States and that no federal statute or regulation expressly identifies an order of supervision as "evidence of authorized stay in the United States." The district court dismissed the superseding indictment after concluding that an order of supervision does not qualify as a document "prescribed by statute or regulation . . . as evidence of authorized stay . . . in the United States" as required by section 1546(a).Based on a review of the statutes and regulations, the Eleventh Circuit held that an order of supervision falls within the plain and ordinary meaning of section 1546(a)'s "other document" clause. The court explained that the Form I-220B, Order of Supervision, itself is a document prescribed by the federal immigration statutes and regulations as showing that an alien has legal permission to stay in the United States. Furthermore, separate and apart from the immigration statutes and regulations, an order of supervision is a document prescribed by certain federal entitlement regulations as evidence of legal permission to stay in the United States. The court also held that defendant's proposed statutory interpretations are not supported by section 1546's language and structure. The court explained that "authorize stay" as used in section 1546(a) is not defined by terms of art for immigration laws governing alien admissibility. Furthermore, section 1546(a)'s "other document" provision does not require an order of supervision to be expressly listed or otherwise identified as evidencing authorized stay in the United States. Accordingly, the court reversed the district court's order dismissing the superseding indictment and remanded for further proceedings. View "United States v. Ardon Chinchilla" on Justia Law

The Ninth Circuit reversed the district court's dismissal of an indictment charging defendant with illegal reentry after removal in violation of 8 U.S.C. 1326. In this case, the district court held that a defective notice to appear (NTA) lacking time and date information did not provide the immigration court with jurisdiction to enter an order of removal.The panel explained that Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019), and Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020), created some confusion as to when jurisdiction actually vests. To clarify, the panel held that 8 C.F.R. 1003.14(a) means what it says and controls: the jurisdiction of the immigration court vests upon the filing of an NTA, even one that does not at that time inform the alien of the time, date, and location of the hearing. The panel further explained that while a defective NTA does not affect jurisdiction, it can create due-process violations. In defendant's brief, he chose not to address the requirements under section 1326(d) for a collateral attack on the validity of the underlying removal, and thus he failed to satisfy the section 1326(d) requirements based on the NTA's lack of date and time information. On remand, defendant may be able to collaterally attack the underlying removal order, if he can meet the requirements of section 1326(d). View "United States v. Bastide-Hernandez" on Justia Law

In 2007, petitioner Alejandro Garcia Mendoza pled guilty to unlawful possession of a controlled substance. He moved to withdraw the plea on grounds his counsel did not advise him as required by Padilla v. Kentucky, 599 U.S. 356 (2010). Petitioner also argued he did not need to show prejudice under RCW 10.40.200. The Court of Appeals concluded petitioner was raising two claims: a constitutional claim that was exempt from the time bar, and a statutory claim that was not. It dismissed his challenge as mixed without reaching the merits. The Washington Supreme Court concluded petitioner made one claim for relief: ineffective assistance of counsel for failing to advise him of the immigration consequences of his plea. The Court rejected petitioner’s argument that under RCW 10.40.200 he did not need to show prejudice to bring this claim, but since he made a prima face showing of ineffective assistance in a challenge that is time exempt, the dismissal of his petition was vacated and this matter was remanded back to the Court of Appeals for further proceedings. View "In re Pers. Restraint of Garcia-Mendoza" on Justia Law