Justia Immigration Law Opinion Summaries

The Ninth Circuit denied separate petitions for review filed by Velasquez-Rios and Desai, holding that an amendment to section 18.5 of the California Penal Code, which retroactively reduces the maximum misdemeanor sentence to 364 days, cannot be applied retroactively for purposes of removability under 8 U.S.C. 1227(a)(2)(A)(i).The panel rejected petitioners' contention that the BIA erred by relying on McNeill v. United States, 563 U.S. 816 (2011), and United States v. Diaz, 838 F.3d 968 (9th Cir. 2016). In McNeil, the Supreme Court held that retroactive changes to North Carolina's state-law sentencing scheme did not change the historical fact that the defendant had been convicted of two felonies. In Diaz, this court concluded that California's reclassification of Diaz's two felony convictions as misdemeanors did not invalidate his enhanced sentence under 21 U.S.C. 841. Relying upon McNeill, the panel held that the statute called for a backward-looking inquiry to the initial date of conviction, rather than the current state of California law, and that the triggering event under section 841 was when the two felony drug offenses had "become final." The panel rejected petitioners' arguments and further explained that its approach aligns with the Supreme Court's admonishments that federal laws should be construed to achieve national uniformity, and explained that its decision avoids the "absurd" results described in McNeill that would follow from petitioners' approach, under which an alien's removability would depend on the timing of the immigration proceeding. Finally, the panel held that federal law standards cannot be altered or contradicted retroactively by state law actions, and cannot be manipulated after the fact by state laws modifying sentences that at the time of conviction permitted removal or that precluded cancellation. View "Velasquez-Rios v. Barr" on Justia Law

The Second Circuit affirmed the district court's grant of habeas corpus relief to petitioner, who was detained pursuant to 8 U.S.C. 1226(a), which provides for discretionary detention of noncitizens during the pendency of removal proceedings. The habeas petition challenged the procedures employed in petitioner's bond hearings, which required him to prove, to the satisfaction of an immigration judge, that he is neither a danger to the community nor a flight risk.The court held that the district court correctly granted the petition where petitioner was denied due process because he was incarcerated for fifteen months (with no end in sight) while the Government at no point justified his incarceration. The district court also provided the correct remedy by ordering a new bond hearing in which the Government bore the burden of showing by clear and convincing evidence that petitioner was either a danger or a flight risk. View "Velasco Lopez v. Decker" on Justia Law

The Ninth Circuit denied the petition for review of the BIA's decision determining that petitioner was ineligible for cancellation of removal under 8 U.S.C. 1229b(b)(1). The panel held that the BIA reasonably concluded that petitioner had been convicted of a crime involving moral turpitude for which a sentence of one year or longer may be imposed based on his conviction for the offense of knowingly sponsoring or exhibiting an animal in a fighting venture under 7 U.S.C. 2156(a)(1). The panel deferred to the BIA's conclusion that, pursuant to the cross-reference in section 1229b(b)(1)(C), an alien is ineligible for cancellation of removal if the alien has been convicted of a crime involving moral turpitude for which a sentence of one year or more may be imposed, regardless of whether the alien meets the immigration prerequisites for inadmissibility or deportability. View "Ortega-Lopez v. Barr" on Justia Law

The conduct proscribed by Oregon's former marijuana delivery statute, Or. Rev. Stat. 475.860 (2011), does not constitute the federal generic crime of "illicit trafficking of a controlled substance," under the Immigration and Nationality Act, 8 U.S.C. 1101(a)(43)(B).The Ninth Circuit held that the Oregon statute criminalizes more conduct—namely, solicitation—than does the federal generic crime. The panel concluded that "illicit trafficking" does not include solicitation offenses and thus Oregon's former crime of marijuana delivery for consideration, Or. Rev. Stat. 475.860(2)(a), does not qualify as an aggravated felony under section 1101(a)(43)(B). In this case, the BIA erred in relying on Rendon v. Mukasey, 520 F.3d 967 (9th Cir. 2008), especially given the panel's earlier precedent establishing that solicitation offenses do not fall under the controlled substance ground for deportation under section 1227(a)(2)(B)(i). Therefore, the panel granted the petition for review and remanded for further proceedings. View "Cortes-Maldonado v. Barr" on Justia Law

Larios, an El Salvadoran national, entered the country without inspection in 1986. In 1998, Larios, allegedly thinking he was being robbed, pulled out a knife and caused the person to flee. Larios pleaded guilty to “threaten[ing] to commit any crime of violence with the purpose to terrorize another . . . or in reckless disregard of the risk of causing such terror,” N.J. Stat. 2C:12-3(a). In removal proceedings, he sought cancellation of removal, 8 U.S.C. 1229b(b)(1), a discretionary form of relief unavailable to those who have “been convicted of an offense under section 1182(a)(2),” including “a crime involving moral turpitude” (CIMT).Larios argued that his crime could not qualify as a CIMT because, under the categorical approach, the elements of a state statute must define an offense not broader than the federal statute, while “the least culpable conduct necessary to sustain a conviction under the [New Jersey] statute,” a threat to commit “simple assault,” did not meet the criteria to qualify as “turpitudinous.” The Third Circuit held the statute was divisible and remanded. On remand, however, the IJ declined to apply the modified categorical approach. The BIA affirmed. After a second remand, the BIA again rejected Larios’s application.The Third Circuit granted Larios's third petition, stating that under the modified categorical approach, Larios’s crime of conviction has a minimum mental state of recklessness but lacks any statutory aggravating factors, so the least culpable conduct is a reckless threat to commit a violent property crime, which is not turpitudinous. View "Larios v. Attorney General United States" on Justia Law

At issue in this appeal is what effect, if any, a guilty plea has on later denaturalization proceedings. In this case, defendant had pleaded guilty to violating and conspiring to violate Iraqi sanctions and to misusing his organization's tax exempt status and omitting relevant, material information from tax forms. Eight years after pleading guilty and eighteen years after first becoming a citizen, the government commenced proceedings to denaturalize defendant. The district court agreed with the government that defendant's failure to disclose his criminal activities called for denaturalization.The Eighth Circuit held that all three judicial estoppel factors favored applying the doctrine: first, the court stated that defendant's current position is clearly inconsistent with the one from his criminal proceeding; second, the district court had to accept the plea's factual basis, including defendant's statements during the plea colloquy; and third, defendant would derive an unfair advantage if he were allowed to change his position now. Therefore, the court cannot say that the district court abused its discretion in refusing to consider defendant's lack-of-knowledge defense. Finally, the court rejecting defendant's defense of laches because the doctrine of laches does not apply to the United States when it is acting in its sovereign capacity. View "United States v. Hamed" on Justia Law

Petitioner, a native and citizen of El Salvador, petitioned for review of the BIA's 2018 decision finding him removable under 8 U.S.C. 1227(a)(2)(A)(iii) for having been convicted of an "aggravated felony" as defined by section 101(a)(43)(A) of the Immigration and Nationality Act (INA). The BIA found that petitioner was convicted of "sexual abuse of a minor" based on his 2010 New York state conviction under New York Penal Law 130.65(3) for sexual abuse in the first degree.The Second Circuit rejected petitioner's contention that section 130.65(3) criminalizes more conduct than the federal definition of "sexual abuse of a minor" covers. The court held that, because a conviction under N.Y. Penal Law 130.65(3) requires both that the victim be under the age of eleven and that the perpetrator's contact with the victim be "for the purpose of gratifying sexual desire," the state statute reaches no farther than the crime of "sexual abuse of a minor" as set forth in section 101(a)(43)(A) and construed by the BIA in In re Rodriguez-Rodriguez, 22 I. & N. Dec. at 996. Therefore, a conviction under the state statute is an aggravated felony under the INA. View "Rodriguez v. Barr" on Justia Law

The Second Circuit denied a petition for review of the the BIA's decision affirming the IJ's order of removal of petitioner to the Dominican Republic. The court held that a conviction under New York Penal Law 165.50 is categorically an aggravated felony under 8 U.S.C. 1101(a)(43)(G). The court deferred to the BIA's reasonable interpretation of the ambiguous term "including" in "including receipt of stolen property" in section 1101(a)(43)(G). Under that interpretation, "'receipt of stolen property' is a distinct aggravated felony independent of theft and the property received need not have been stolen by means of 'theft' as generically defined." The court also determined that an intent to deprive is inherent in the requirement that an offender "knowingly" possesses stolen property. The court considered petitioner's remaining arguments and concluded that they are without merit. View "Santana v. Barr" on Justia Law

Jabateh was a rebel commander during the Liberian civil war. He later fled to the United States seeking asylum. His conduct in Liberia, characterized by brazen violence and wanton atrocities, made honest immigration application impossible. He concealed his crimes and portrayed himself as a persecuted victim. Jabateh’s fraud succeeded for almost 20 years.In 2016, Jabateh was charged with the fraud in his immigration documents, 18 U.S.C. 1546(a) and perjury, 18 U.S.C. 1621. The five-year limitations period for misconduct related to Jabateh's 2001 application for permanent residency had passed, leaving only Jabateh’s oral responses in a 2011 Interview affirming his answer of “no” to questions related to genocide and misrepresentations during his immigration applications. The district court noted “the force of the prosecution’s trial evidence,” establishing that Jabateh personally committed or ordered his troops to commit murder, enslavement, rape, and torture “because of race, religion, nationality, ethnic origin or political opinion.”The Third Circuit affirmed, rejecting challenges to the sufficiency of the evidence and to Jabateh’s 360-month sentence. The court acknowledged that section 1546(a) criminalizes fraud in immigration documents and that Jabateh was not charged with fraud in his immigration documents, only with orally lying about those documents. Jabateh, however, failed to raise this argument at trial. “Given the novelty of the interpretative question, and the lack of persuasive" guidance, the court declined to hold that this reading of section 1546(a) meets the stringent standards for “plain error” reversal. View "United States v. Jabateh" on Justia Law

The Eleventh Circuit granted the government's unopposed motion to amend the decision, vacated the previous opinion, and issued this opinion with the government's requested amendment.After determining that it has jurisdiction to consider the petition for review, the court held that the BIA erred by retroactively applying the stop-time rule to petitioner's pre-Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) conviction. The court held that neither IIRIRA section 309(a) nor 309(c)(5) mandates retroactivity, and that the BIA's interpretation of the stop-time rule does not warrant Chevron deference. In this case, by pleading guilty, petitioner gave up constitutionally protected rights with the reasonable expectation that his resulting sentence would not affect his ability to remain present in this country. The court explained that applying the stop-time rule retroactively would add a new and unforeseen consequence to his guilty plea by rendering him ineligible for cancellation of removal. Accordingly, the court reversed the BIA's decision and remanded for further proceedings. View "Rendon v. U.S. Attorney General" on Justia Law