Justia Immigration Law Opinion Summaries

In 2004, Abreu was convicted in Pennsylvania of 22 drug-related counts and was sentenced to 27-54 years’ imprisonment, to run consecutively to a federal sentence Abreu was already serving. The Superior Court of Pennsylvania affirmed. Abreu later unsuccessfully sought relief under the Pennsylvania Post Conviction Relief Act (PCRA). In 2015, Abreu filed a habeas petition under 28 U.S.C. 2254, claiming that his PCRA counsel’s assistance was ineffective in failing to assert that his trial counsel had rendered ineffective assistance. The district court rejected his claims.The Third Circuit granted a certificate of appealability as to claims that trial counsel performed ineffectively by failing to challenge the admission of grand jury testimony and by failing to seek to strike a police officer’s testimony recounting statements made by others. While Abreu’s appeal was pending, he was released on early parole, subject to a federal removal order, and then removed to the Dominican Republic. His federal conviction (not at issue) permanently bars his reentry. The Third Circuit directed the district court to dismiss Abreu’s petition as moot. Without a collateral consequence of Abreu’s state conviction that can be redressed by a favorable decision on his petition, there is no case or controversy under Article III. View "Abreu v. Superintendent Smithfield SCI" on Justia Law

The Second Circuit granted a petition for review of the BIA's decision finding petitioner removable as an aggravated felon for having been convicted of fraud involving a loss to the victims exceeding $10,000 pursuant to 8 U.S.C. 1227(a)(2)(A)(iii), 1101(a)(43)(M)(i). Defendant was convicted of insurance fraud and grand larceny, and was ordered to pay $77,199 in restitution without any indication as to whether the restitution order was for the benefit of victims of the insurance fraud, the grand larceny, or both.The court held that the BIA relied on inadequate analysis in concluding that the $77,199 restitution order, on its own, showed that petitioner's insurance fraud caused more than $10,000 in victim losses. In this case, where petitioner was convicted of two separate crimes and ordered to pay an overarching restitution amount without indication of what part, if any, was for the insurance fraud, the court held that the restitution order, without more, is insufficient to demonstrate that more than $10,000 in losses were caused by the insurance fraud count as distinct from the larceny count. Furthermore, the BIA gave no explanation why it concluded that more than $10,000 of the restitution award was attributable to losses caused by the insurance fraud. Accordingly, the court vacated the BIA's decision and remanded for further proceedings. View "Rampersaud v. Barr" on Justia Law

The Fourth Circuit denied the petition for review of the BIA's decision dismissing petitioner's appeal of the IJ's finding that petitioner is statutorily ineligible for cancellation of removal because, during his first seven years of continuous residence after admission to the United States, he committed an offense listed in 8 U.S.C. 1182(a)(2) that rendered him inadmissible.The Supreme Court held, in Barton v. Barr, 140 S. Ct. 1442 (2020), that conviction of an offense listed in Section 1182(a)(2) renders a lawful permanent resident "inadmissible" for purposes of Section 1229b(d)(1) even if he is not seeking admission. In this case, because petitioner committed such an offense during his initial seven years of residence after admission to the United States, and was later convicted of that offense, the court held that he is ineligible for cancellation of removal. View "Argueta v. Barr" on Justia Law

Argentine citizen Cabeda, a lawful U.S. permanent resident, was convicted in Pennsylvania state court of having involuntary deviate sexual intercourse at age 34 with a 15-year-old boy. Immigration authorities found her removable for having committed a state-law offense qualifying as an “aggravated felony,” 8 U.S.C. 1227(a)(2)(A)(iii), specifically the “sexual abuse of a minor.”The Third Circuit granted her petition for review. Notwithstanding her actual, admitted sexual abuse of a minor, she cannot be removed because the Pennsylvania statute under which she was convicted could conceivably be violated by conduct that falls short of satisfying all the elements of the federally defined crime of sexual abuse of a minor. The categorical approach mandates ignoring what she actually did and focusing instead on what someone else, in a hypothetical world, could have done. The court called this “a surpassingly strange result but required by controlling law.” View "Cabeda v. Attorney General United States" on Justia Law

The Eighth Circuit affirmed the district court's denial of defendant's motion to dismiss the indictment charging defendant with illegal reentry in the United States. The court held that an alien may not collaterally attack the underlying deportation order unless: (1) the alien exhausted his administrative remedies with respect to the order; (2) the deportation proceedings improperly deprived the alien of an opportunity for judicial review; and (3) entry of the order was fundamentally unfair.In this case, defendant failed to meet his burden on any of the elements. Furthermore, even if defendant could collaterally attack the deportation order under Pereira v. Sessions, 138 S. Ct. 2105, 2115 (2018), his attack fails. Therefore, the immigration court had jurisdiction over defendant's deportation proceedings and the district court did not err in denying his motion to dismiss the indictment. View "United States v. Aquilar Escobar" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision affirming the IJ's denial of petitioner's request for deferral of removal under the Convention Against Torture (CAT).The panel held that the federal generic definition of murder is "the unlawful killing of a human being with malice aforethought" under 18 U.S.C. 1111(a); because federal law defines the term "human being" to exclude an unborn fetus, California Penal Code section 187(a), which criminalizes the unlawful killing of an unborn fetus, is broader than the federal generic definition; section 187(a) is divisible because it creates distinct crimes for the unlawful killing of a human being and the unlawful killing of a fetus; and, under the modified categorical approach, petitioner's section 187(a) second degree murder conviction under section 187(a) for the unlawful killing of a human being is an aggravated felony under the INA. Accordingly, substantial evidence supported the denial of deferral and petitioner is removable as charged. View "Gomez Fernandez v. Barr" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision and held that petitioner's conviction under California Penal Code 288.3(a), for attempting to communicate with a child with the intent to commit lewd or lascivious acts upon that child, was categorically a crime involving moral turpitude that made him removable.The panel explained that not all of section 288.3(a)'s enumerated offenses involve moral turpitude, and thus the statute is not categorically a crime involving moral turpitude. However, the panel held that the statute is divisible; petitioner pleaded guilty to section 288.3(a) with the specific intent of violating section 288; and thus he was properly deemed removable as an alien convicted of a crime involving moral turpitude under 8 U.S.C. 1227(a)(2)(A)(i). The panel also distinguished Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018), from petitioner's circumstances in this case. View "Syed v. Barr" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's determination that petitioner's California conviction was "categorically one for an aggravated felony offense relating to obstruction of justice," and dismissal of his appeal. Because the panel in Valenzuela Gallardo I applied the Chevron framework to the BIA's construction of the aggravated felony of an offense relating to obstruction of justice, and the panel does not believe any exceptions to the law of the case doctrine apply here, the panel must proceed to Chevron Step One. The panel explained that both a de novo interpretation of the obstruction of justice provision utilizing traditional tools of statutory interpretation and a Chevron Step One analysis lead to the same conclusion.The panel held that "obstruction of justice" under 8 U.S.C. 1101(a)(43)(S) is unambiguous in requiring an ongoing or pending criminal proceeding, and the Board's most recent interpretation is at odds with that unambiguous meaning. Furthermore, because "obstruction of justice" under section 1101(a)(43)(S) unambiguously requires a nexus to ongoing or pending proceedings, and California Penal Code section 32 does not, petitioner's state criminal conviction is not a categorical match with the aggravated felony offense charged in his Notice to Appear. Therefore, the panel vacated the removal order. View "Valenzuela Gallardo v. Barr" on Justia Law

The Fifth Circuit denied the petition for review, holding that petitioner's conviction for sexual assault of a child was a "crime of child abuse," making him removable under Section 237(a)(2)(E)(i) of the Immigration and Nationality Act. In this case, defendant raped and impregnated his fourteen-year-old stepdaughter. Defendant was arrested for the rape seventeen years later and charged with sexual assault of a child in violation of Texas Penal Code section 22.011(a)(2). He was convicted and sentenced to ten years probation.The court held that the Board's interpretation of a "crime of child abuse, child neglect, or child abandonment" is a reasonable reading of a statutory ambiguity, and joined the Second, Third, Ninth, and Eleventh Circuits in holding that the Board's interpretation is entitled to Chevron deference. Reviewing de novo, the court held that defendant's conviction under Texas Penal Code section 22.011(a)(2) falls within the Board's definition of a crime of child abuse. View "Garcia v. Barr" on Justia Law

Petitioner Everett Johnson, a citizen of the Bahamas, became a United States permanent resident in 1977. But in 2016, he pleaded guilty to possessing a schedule II controlled substance in violation of Colorado law. Soon after, the Department of Homeland Security (DHS) charged Johnson as removable from the United States based on the state drug conviction. The Board of Immigration Appeals (BIA) then ordered Johnson’s removal from the United States back to the Bahamas. He appealed, challenging that the state drug conviction subjected him to deportation from the United States. The Tenth Circuit determined Colorado Revised Statute section 18-18-403.5(1), (2)(a) was overbroad and indivisible as to the identity of a particular controlled substance. Therefore, Johnson’s conviction could not subject him to removal from the United States. The Court therefore granted Johnson’s petition for review, vacated the BIA’s order, and remanded to the BIA for further proceedings. View "Johnson v. Barr" on Justia Law