Justia Immigration Law Opinion Summaries

In 2012, Rad and others were charged with acquiring penny stocks, “pumping” the prices of those stocks by bombarding investors with misleading spam emails, and then “dumping” their shares at a profit. Rad was convicted of conspiring to commit false header spamming and false domain name spamming under the Controlling the Assault of Non-Solicited Pornography And Marketing Act (CAN-SPAM), 15 U.S.C. 7701(a)(2), which addresses unsolicited commercial email. The PSR recommended raising Rad’s offense level to reflect the losses inflicted on investors, estimating that Rad realized about $2.9 million in “illicit gains” while acknowledging that because “countless victims” purchased stocks, the losses stemming from Rad’s conduct could not “reasonabl[y] be determined.” Rad emphasized the absence of evidence that any person lost anything. Rad was sentenced to 71 months’ imprisonment. The record is silent as to how the court analyzed the victim loss issue. The Third Circuit affirmed. DHS initiated removal proceedings under 8 U.S.C. 1227(a)(2)(A)(iii), which renders an alien removable for any crime that “involves fraud or deceit” “in which the loss to the victim or victims exceeds $10,000.” The IJ and the BIA found Rad removable.The Third Circuit remanded. Rad’s convictions for CAN-SPAM conspiracy necessarily entail deceit under 8 U.S.C. 1101(a)(43)(M)(i). The second element, requiring victim losses over $10,000, however, was not adequately addressed. The court noted that intended losses, not just actual ones, may meet the requirement. View "Rad v. Attorney General United States" on Justia Law

The Eleventh Circuit denied a petition for review of the BIA's determination that petitioner should be removed from the United States because he has been convicted of two or more crimes of moral turpitude under 8 U.S.C. 1227(a)(2)(A)(ii).The court held that petitioner's conviction for vehicular homicide in Florida contains the necessary mens rea to constitute a crime of moral turpitude. When a person deviates from the standard of care by operating a motor vehicle so recklessly that it is likely to cause death or great bodily harm, and, in fact, results in the killing of a human being, the court has little difficulty finding that he has exhibited the baseness in the duties owed to society that constitutes moral turpitude. Therefore, petitioner's conviction in Florida of vehicular homicide is categorically a crime involving moral turpitude, and he is removable under the controlling statute. View "Smith v. U.S. Attorney General" on Justia Law

Ronald Sewell, a 20-year-old Jamaican national, pleaded guilty to two counts of first degree robbery and pleaded guilty as charged to possession of a stolen firearm. The district court sentenced him to serve three years imprisonment at hard labor without parole eligibility for each first degree robbery, and one year imprisonment at hard labor for possession of a stolen firearm, with the sentences to run concurrently. After he served his sentences, the federal Government commenced removal proceedings based on these felony guilty pleas. Sewell filed an application for post-conviction relief in which he contended the guilty pleas had to be set aside because counsel rendered ineffective assistance by failing to advise him that they would result in his removal from the United States. Sewell’s former counsel testified at the post-conviction evidentiary hearing stating she was unaware that Sewell was not a United States citizen, and that she would have advised him of the possibility of removal if she had known his status as a noncitizen. Former counsel also testified that Sewell spoke English fluently and without an accent, and that he never informed her that he was born outside of the United States. The judge who presided over the post-conviction evidentiary hearing also accepted the guilty pleas. The judge indicated that she recalled the case and agreed that nothing about Sewell would have prompted anyone to question whether he was a United States citizen. Nonetheless, the district court granted Sewell’s application for post-conviction relief and ordered that his guilty pleas be withdrawn. The court noted that no one had advised defendant of the strong likelihood he would be removed from the United States based on his guilty pleas, the plea form did not contain any place to indicate citizenship, and therefore the court found it incumbent upon it to grant the relief requested. The State appealed. The Louisiana Supreme Court reversed, finding that under the circumstances here, Sewell failed to carry his burden post-conviction that his attorney’s failure to inquire into his citizenship fell below an objective standard of reasonableness under Strickland v. Washington, 466 U.S. 668 (1984). Therefore, the district court erred in granting Sewell’s application for post-conviction relief and in ordering that Sewell’s guilty pleas be withdrawn. Accordingly, the State’s application was granted and the rulings of the courts below reversed. Sewell’s guilty pleas were reinstated. View "Louisiana v. Sewell" on Justia Law

Plaintiff, a federal prisoner proceeding pro se, filed a mandamus action in the district court, seeking an order to compel USCIS officials to travel to federal prison in order to administer the oath of citizenship to him. Plaintiff alleged that USCIS unlawfully withheld or unreasonably delayed the administration of his oath under section 706(1) of the Administrative Procedure Act (APA).The Fifth Circuit affirmed the district court's dismissal of plaintiff's claim under 28 U.S.C. 1915A(b)(1) for failure to state a claim for relief and denial of his subsequent motion for reconsideration. Contrary to defendant's contention, the district court did consider defendant's APA claim before dismissing it. The district court dismissed after determining that his section 706(1) claim could not proceed. The court explained that when plaintiff appears before USCIS officials, they must administer the oath to him. But the manner in which USCIS administers the oath, including where within the United States that administration occurs, is left to the agency's discretion. In this case, plaintiff cannot show a clear right to relief and thus he is not entitled to a writ of mandamus. Finally, the district court did not abuse its discretion in denying plaintiff leave to amend the complaint. View "Mendoza-Tarango v. Flores" on Justia Law

Ayon-Brito was prosecuted and convicted in the Eastern District of Virginia of reentering the U.S. without permission after having been removed, 8 U.S.C. 1326(a). The district court had denied his pretrial motion to dismiss for improper venue. Ayon-Brito argued that although the indictment alleged that he was first “encountered” after his reentry by officers in Virginia, it also alleged, as an element of the offense, that he was “found” in the Middle District of Pennsylvania where he was first accurately identified. He argued that the crime charged was committed in the Middle District of Pennsylvania, so that venue was appropriate only there; 8 U.S.C. 1329 establishes venue for a section 1326 violation in the district where the violation “occurred.”The Fourth Circuit affirmed the denial of the motion to dismiss. The violation of 1326(a) was a continuing offense that began when he reentered the U.S. and continued wherever he was present until he was found and arrested. Because “found” does not itself refer to an act or conduct of the defendant, it does not describe a conduct element; the crime at issue is “being in” the U.S. If Ayon-Brito believed that he faced prejudice or inconvenience, he could have sought a transfer; he did not. He elected a bench trial in Virginia and was dealt with fairly. View "United States v. Ayon-Brito" on Justia Law

Deivy Romero-Lopez was convicted of illegally reentering the United States after being removed. The crime of illegal reentry begins when a noncitizen returns after removal and continues until he or she is “found” in the United States. The issue this case presented was not that Romero-Lopez was found in the U.S. after removal, but when he was found. The timing matters for his sentence because the Sentencing Commission dramatically increased the guideline ranges for individuals convicted of illegal reentry. The "starting point" for a sentence was the applicable starting guideline range. To determine that range, the district court needed to decide which annual version of the guidelines to use because the Sentencing commission changed the applicable provision in November 2016; the guideline ranges for illegal reentry sharply increased in November 2016. The new version of the guidelines would have applied only if Romero-Lopez's offense ended on or after the date of the change. Focusing on this increase, the parties disagreed over whether Romero-Lopez had been “found” before the change went into effect. The district court concluded that he had been found after the change, triggering the increased guideline range. Finding no reversible error in that conclusion, the Tenth Circuit affirmed. View "United States v. Romero-Lopez" on Justia Law

Shuhaiber, who is confined to a wheelchair, sued the Illinois Department of Corrections under the Americans with Disabilities Act and Rehabilitation Act. He alleged that the Stateville Center failed to accommodate his disability by confining him to a cell unsuited to the use of a wheelchair and that he was transported to physical therapy in vans that were not ADA-compliant, leaving him to depend on an officer to lift him. The district court dismissed the complaint, determining that Shuhaiber failed to allege that he was deprived of access to facilities or services or that the vans caused him to miss medical appointments.Shuhaiber appealed and sought permission to proceed without prepaying the requisite filing fee. Meanwhile, Shuhaiber, a native of the United Arab Emirates, had been transferred to DHS custody for removal from the United States. Shuhaiber, as a frequent filer of federal lawsuits, had accumulated more than three strikes under the Prison Litigation Reform Act for filing frivolous lawsuits and would have had to prepay the filing fee to appeal the dismissal of his claims. Doubting that Shuhaiber was still a “prisoner,” the district court granted his motion to proceed in forma pauperis.The Seventh Circuit affirmed that the appellate filing-fee bar does not apply where the appellant is being held by immigration authorities and no longer is a “prisoner” within the meaning of the PLRA. The district court was, nonetheless, right to dismiss his claims. View "Shuhaiber v. Illinois Department of Corrections" on Justia Law

Khan was admitted to the U.S. as a legal permanent resident in 2000. In 2006, he pleaded guilty to possession of less than one-half ounce of marijuana. He was not then subject to removal for “a single offense involving possession for one’s own use of 30 grams or less of marijuana,” 8 U.S.C. 1227(a)(2)(B)(i). In 2010, Khan was convicted for two counts of larceny in the third degree under Connecticut law, which subjected him to removal as “convict[ions] of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct,” 8 U.S.C. 1227(a)(2)(A)(ii).Khan sought cancellation of removal, which required that he resided in the U.S. continuously for seven years after having been admitted, 8 U.S.C. 1229b(a)(2). The “stop-time rule” stops the accrual of continuous residence when the noncitizen “has committed an offense referred to in section 1182(a)(2) . . . that renders the alien inadmissible.” Khan argued the rule did not apply because Connecticut later decriminalized the marijuana offense. His conviction had been vacated. The IJ disagreed, reasoning that the vacatur was due to a “post-conviction event,” rather than “on the basis of a procedural or substantive defect in the underlying proceeding.” The BIA affirmed. The Third Circuit denied a petition for review. The stop-time rule still applies if, post-conviction, the offense has been decriminalized and the conviction vacated; Khan did not satisfy the continuous-residence requirement for eligibility for cancellation of removal. View "Khan v. Attorney General United States" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision affirming the IJ's determination that petitioner was removable for having committed an aggravated felony by violating California Health & Safety Code 11359. The panel held that petitioner's violation of section 11359 constitutes an aggravated felony for purposes of the INA, as decided by Roman-Suaste v. Holder, 766 F.3d 1035 (9th Cir. 2014).The panel joined the Second, Third, and Eleventh Circuits in deciding that, when conducting a categorical analysis for removability based upon a state criminal conviction, it is proper to compare drug schedules at the time of the petitioner's underlying criminal offense, not at the time of the petitioner's removal. Because the California and federal definitions of marijuana were identical at the time of petitioner's guilty plea, the panel concluded that his conviction was a categorical match with the generic federal offense. Therefore, petitioner is removable. The panel also affirmed the BIA's decision to deny petitioner's claim for deferral of removal under the CAT. View "Medina-Rodriguez v. Barr" on Justia Law

Brito, in the U.S. illegally, was arrested in 2001, after delivering heroin to an undercover officer; he admitted that he had been selling heroin for more than a year. After his release from prison, he was removed to the Dominican Republic. Brito returned, illegally. In 2007, he was arrested for heroin crimes. Brito pleaded guilty to two state offenses, three federal drug crimes, and illegal reentry. After his imprisonment, Brito was again removed in 2013. His first child had been born around 2007; his wife stayed in New York to care for their kids, who apparently have learning disorders. Brito returned, illegally and was arrested.Brito pleaded guilty to illegal reentry. The Sentencing Guidelines recommended 70-87 months’ imprisonment. Brito claimed that he had committed no crimes since his children were born and that he had devised a plan to support them from the Dominican Republic. The court stated that it had “listened very carefully” and had read all of the written submissions. After reciting Brito’s criminal history, the judge asked: “Is there anything incorrect?” Brito’s counsel replied: “I wasn’t making a timeline ... if it tracks what’s in the Presentence Report, then, yes, it is.” After weighing the 18 U.S.C.3553(a) factors, the court sentenced Brito to 70 months. The Third Circuit vacated. In restating Brito’s criminal history, the judge erroneously implied that his criminal career continued after his daughter was born. That factual mistake undermined his argument for leniency. The error was plain. View "United States v. Brito" on Justia Law