Justia Immigration Law Opinion Summaries

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

The Fifth Circuit dismissed the petition for review, holding that the use of an unauthorized social security number, in violation of 42 U.S.C. 408(a)(7)(B), constitutes a crime involving moral turpitude (CIMT) such that petitioner is ineligible for cancellation of his removal to Mexico.Reviewing de novo, the court explained that, under Fifth Circuit precedent, a section 408(a)(7)(B) offense categorically constitutes a CIMT because it necessarily involves intentional deception. The court concluded that the offender's deceptive intent is dispositive. Even assuming arguendo that the conviction requires a further aggravating element beyond deceptive intent, the court was satisfied that such an element is present where a conviction under section 408(a)(7)(B) necessarily involves conduct that obstructs the function of government. Therefore, petitioner's application for cancellation of removal is pretermitted. View "Munoz-Rivera v. Wilkinson" on Justia Law

Gear, a native of Australia, moved to Hawaii to work. Gear’s employer applied for, and Gear received, an “H-1B” nonimmigrant visa. Gear later returned from visiting Australia with a rifle. Gear was fired and needed a new visa. Gear created a new company and obtained a new H-1B visa. A DHS agent learned Gear was present on an H-1B visa and bragged about owning firearms, and obtained a search warrant. Before the search, Gear stated, “he couldn’t possess a firearm … because he was not a U.S. citizen.” Gear stated his ex-wife had shipped a rifle and gun safe to Hawaii but he claimed they had been discarded because “he couldn’t have it.” Gear eventually admitted that the gun and safe were in the garage.He was charged under 18 U.S.C. 922(g)(5)(B) for possessing a firearm while being an alien who had been admitted under a nonimmigrant visa. The jury was instructed the government had to prove Gear “knowingly possessed” the rifle, that had been transported in foreign commerce, and that Gear had been admitted under a nonimmigrant visa. Before Gear was sentenced, the Supreme Court decided Rehaif, holding that under section 922(g), the government must prove the defendant “knew he belonged to the relevant category of persons barred from possessing a firearm.”The Ninth Circuit affirmed Gear’s conviction. While the government must prove the defendant knew he had a nonimmigrant visa, the erroneous jury instructions did not affect Gear’s substantial rights because the record overwhelmingly indicates that he knew it was illegal for him to possess a firearm. View "United States v. Gear" on Justia Law

The First Circuit affirmed the judgment of the district court granting Petitioner's habeas corpus petition after the Dominican Republic requested Petitioner for extradition, holding that the United States failed to file the necessary documents to support an extradition request.Upon receipt and review of the Dominican Republic's request to extradite Petitioner, the United States filed an extradition compliant. A federal magistrate judge certified Petitioner as eligible for extradition. Petitioner filed a petition for writ of habeas corpus, arguing that the Dominican Republic failed to provide the required documentation in its extradition request and that his extradition would violate the United Nations Convention Against Torture (CAT) because the Board of Immigration Appeals (BIA) had previously found that he qualified for CAT relief. The district court granted relief, finding both that the extradition was barred by the BIA's CAT determination and that the extradition request did not satisfy the documentary requirements of the Dominican Republic-United States Extradition Treaty. The First Circuit affirmed, holding (1) the district court erroneously determined that the United States was bound by the BIA's prior determination awarding Petitioner CAT relief; but (2) the district court properly found that the documentation was insufficient to support an extradition request under the treaty. View "Aguasvivas v. Pompeo" on Justia Law

Herrera's husband fraudulently used the identity of a lawful permanent U.S. resident (LPR) to become a citizen. Herrera obtained LPR status as the wife of a citizen and became a citizen. Herrera's four children are U.S. citizens. In 2011, Herrera was convicted of second-degree theft. The government discovered Herrera’s false statement. She pleaded guilty to naturalization fraud, 18 U.S.C. 1425(a). The district court revoked her citizenship and restored her to LPR status, 8 U.S.C. 1451(e).If an alien commits fraud or misrepresents a material fact to gain a benefit under the immigration laws, she may be deported, 8 U.S.C. 1182(a)(6)(C)(i); 1227(a)(1)(A). Herrera sought a waiver available to aliens who committed immigration fraud but are the parent of a citizen and separately sought cancellation of removal as an LPR. DHS added a charge of removability for convictions of crimes involving moral turpitude based on Herrera's theft conviction, then withdrew the charge of removability for immigration fraud. The BIA affirmed that she was ineligible for a fraud waiver because she was no longer charged under the fraud provision and was ineligible for cancellation of removal because she had obtained her LPR status by fraud.The Eighth Circuit denied relief, rejecting Herrera’s argument that DHS could not withdraw the fraud charge because it had already been sustained by the IJ. The government is permitted to adjust the charges against an alien during the immigration court case. View "Gonzalez v. Rosen" on Justia Law

The Eleventh Circuit dismissed a petition for review of the BIA's decision affirming the IJ's order of removal because petitioner had been convicted of an aggravated felony. In this case, the IJ and BIA found that petitioner's Florida convictions for money laundering and workers' compensation fraud were aggravated felonies because each conviction involved fraud or deceit in which the amount of loss to the victim exceeded $10,000 under 8 U.S.C. 1101(a)(43)(M)(i). The court held that substantial evidence in the record, including petitioner's admission of guilt and a concomitant plea agreement, fully supports the agency's finding of the loss amount. View "Garcia-Simisterra v. U.S. Attorney General" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision dismissing petitioner's appeal of the IJ's finding of removability based on his past drug convictions. Under the Special Agricultural Worker program (SAW), agricultural workers meeting certain qualifications could obtain lawful temporary resident status, after which they were automatically adjusted to lawful permanent residency on a set schedule. Petitioner had obtained lawful permanent resident status through SAW, but it turns out that before he applied for SAW temporary resident status, he had been convicted of two drug offenses that would have rendered him ineligible for admission into the United States.The panel held that, under SAW, an alien who was inadmissible at the time of his adjustment to temporary resident status because of disqualifying convictions may be removed after his automatic adjustment to permanent resident status, despite the Attorney General never having initiated termination proceedings while the alien was a temporary resident. The panel rejected petitioner's argument that SAW's limitations on administrative and judicial review prevent the government from seeking his removal. Finally, the panel concluded that Barton v. Barr, 140 S. Ct. 1442 (2020), provided no support for petitioner's assertion that under provisions unique to SAW, he could only be removed for his drug convictions during the period of his temporary residency. View "Hernandez Flores v. Rosen" on Justia Law

Dat was born in a Kenyan refugee camp in 1993. Admitted to the U.S. around 1994, he became a lawful permanent resident. Dat pled guilty to robbery, 18 U.S.C. 1951, and was sentenced to 78 months' imprisonment. Dat’s robbery conviction is a deportable offense, 8 U.S.C. 1227(a)(2)(A)(iii). Dat moved to vacate his guilty plea, claiming that his attorney, Allen, assured him that his immigration status would not be affected by his plea. Allen testified that she repeatedly told Dat the charges were “deportable offenses,” that she never told him, his mother, or his fiancée that he would not be deported. that she encouraged Dat to hire an immigration attorney, and that they reviewed the Plea Petition, which says that non-citizens would be permanently removed from the U.S. if found guilty of most felony offenses. The Plea Agreement refers to immigration consequences. Dat and Allen also reviewed the PSR, which stated that immigration proceedings would commence after his release from custody.The Eighth Circuit affirmed the denial of relief, finding that Dat was not denied effective assistance of counsel. It was objectively reasonable for Allen to tell Dat that he “could” face immigration ramifications that “could” result in deportation. An alien with a deportable conviction may still seek “relief from removal. These “immigration law complexities” should caution any defense attorney not to advise a defendant considering a guilty plea that the result of a post-conviction, contested removal proceeding is certain. View "Dat v. United States" on Justia Law

Silvestre-Gregorio, then age 16, entered the U.S. illegally in 2001. He was detained within weeks. At his removal hearing, he did not have an attorney but was assisted by an interpreter and a social worker. The interpreter spoke Spanish; Silvestre-Gregorio spoke little English and some Spanish; his native tongue was a regional dialect of Guatemala. He answered open-ended questions in Spanish, including where he was born and how he crossed the border. The IJ had to repeat some questions and explained to Silvestre-Gregorio his ability to appeal and his right to be represented by retained counsel. The IJ asked several times whether he would like time to find an attorney. Silvestre-Gregorio declined, saying that he wanted to finish his case that day. Silvestre-Gregorio was removed from the U.S. in June 2001. Silvestre-Gregorio returned to the U.S. in 2002. He accumulated convictions for domestic assault, public intoxication, theft, DUI, and driving without a license.In 2018, he was charged with unlawful reentry of a removed alien, 8 U.S.C. 1326(a). Silvestre-Gregorio argued that his 2001 removal violated his right to due process and could not be the basis for a section 1326 conviction. The Sixth Circuit affirmed the denial of the motion. Silvestre-Gregorio could understand the interpreter during his removal hearing and did not have a constitutional right to government-provided counsel or to be notified of discretionary relief (voluntary removal). View "United States v. Silvestre-Gregorio" on Justia Law