Justia Immigration Law Opinion Summaries

The Ninth Circuit denied a petition for review of the BIA's determination that petitioner's conviction for felony vehicular flight from a pursuing police car while driving against traffic, in violation of California Vehicle Code section 2800.4, is categorically a crime involving moral turpitude that made him removable.The panel applied the two-step process in determining whether California Vehicle Code section 2800.4 is categorically a crime involving moral turpitude by first reviewing the elements of the statute de novo and then by deferring, to some extent, to the BIA's conclusion that a crime involves moral turpitude. The panel concluded that it need not decide the appropriate level of deference because, even affording only minimal deference, the BIA's interpretation was correct. View "Lepe Moran v. Barr" on Justia Law

Sexual assault in the third degree under CGS 53a-72a(a)(1) necessarily includes as an element the use or threatened use of violent force and thus categorically constitutes a crime of violence as defined in 18 U.S.C. 16(a).The Second Circuit denied a petition for review of the BIA's decision affirming the IJ's order of removal. The court declined to remand for the agency to consider in the first instance whether petitioner's conviction of Connecticut third-degree sexual assault is a crime of violence under the alternative definition in 18 U.S.C. 16(a), but rather considered that legal question de novo and held that it categorically satisfies that definition. The court vacated the petition and denied the pending motion for stay of removal as moot. View "Kondjoua v. Barr" on Justia Law

Perez-Rodriguez, a citizen of Mexico, was ordered removed in June 2016. He reentered the country days later and was arrested and convicted under 18 U.S.C. 1546 for reentry after deportation and false personation in immigration matters. He was sentenced to time served (140 days) and removed again in December 2016. In June 2018, Perez-Rodriguez was arrested in Ohio on a failure to appear warrant for child endangering. He pled guilty to illegal reentry, Perez-Rodriguez had one prior conviction in 2015 for operating a motor vehicle under the influence (DUI), for which he received probation. Based on this criminal history, his prior count of reentry, and his acceptance of responsibility, Pretrial Services recommended a Guidelines range of 8-14 months' imprisonment. The district court entered a sentence of 24 months, noting Perez-Rodriguez’s DUI conviction, that he “apparently violated his probation,” and the need to deter individuals who demonstrate “a pattern of continuing to violate our laws.”The Sixth Circuit reversed and remanded for resentencing, finding Perez-Rodriguez’s sentence substantively unreasonable, Perez-Rodriguez had one DUI conviction before his first deportation, and he had not been convicted of anything that would endanger the public since that conviction. Perez-Rodriguez does not exhibit an extensive “pattern” of deportation and reentry nor do his past actions present that ongoing risk of harm to the public. View "United States v. Perez-Rodriguez" on Justia Law

The Second Circuit granted a petition for review of the BIA's decision ordering petitioner removed based on his 2016 Connecticut state conviction for carrying a pistol or revolver without a permit, in violation of Connecticut General Statutes 29-35(a).The court held that Section 29-35(a) of the Connecticut General Statutes is not a categorical match for the generic federal firearms offense, 8 U.S.C. 1227(a)(2)(C). The court held that the Connecticut statute criminalizes conduct involving "antique firearms" that the INA firearms offense definition does not, precluding petitioner's removal on the basis of the state conviction. The court also held that, under Hylton v. Sessions, 897 F.3d 58 (2d Cir. 2018), the realistic probability test has no bearing here, where the text of the state statute gives it a broader reach than the federal definition. Accordingly, the court vacated the order of removal and remanded with directions to terminate the removal proceedings. View "Williams v. Barr" on Justia Law

Reyes-Romero was prosecuted for unlawful reentry, 8 U.S.C. 1326. The district court dismissed the indictment, finding that irregularities in Reyes-Romero’s removal proceeding constituted fundamental errors that caused him prejudice. The court stated that the government’s subjective motivation for its motion to dismiss was a desire to rely on the 2011 removal order in future immigration proceedings, which“taint[ed]” the Government’s effort. The court then awarded Reyes-Romero fees pursuant to the Hyde Amendment, under which a prevailing defendant in a federal criminal prosecution can apply to have his attorney’s fees and costs covered by the government if the defendant shows that “the position of the United States” in the prosecution “was vexatious, frivolous, or in bad faith,” 18 U.S.C. 3006A.The Third Circuit reversed. “Although assuredly born of good intentions and understandable frustration with faulty processes in the underlying removal proceeding,” the award was not based on the type of pervasive prosecutorial misconduct with which the Amendment is concerned. Reyes-Romero’s 2011 expedited removal proceeding deviated from the required ordered, sensible process and reasonable minds may differ about how the prosecution should have reacted once those issues became apparent. Where reasonable minds may differ, however, and where the government made objectively reasonable and defensible choices, there can be no Hyde Amendment liability. View "United States v. Reyes-Romero" on Justia Law

Francisco, a citizen of Guatemala, obtained lawful U.S. permanent resident status in 1989. In 2012, Francisco pleaded guilty to attempted grand larceny in the second degree in New York; Francisco had obtained a stolen laptop and contacted the laptop’s owner and demanded money. During this exchange, Francisco sent the laptop’s owner sexually explicit pictures that Francisco had found on the laptop. The owner contacted the police. Francisco was sentenced to five years of probation. In 2018, Francisco returned from a trip abroad and sought admission as a returning lawful permanent resident. Instead, Francisco was classified as an arriving alien and was deemed inadmissible under 8 U.S.C. 1182(a)(2)(A)(i)(I) as an alien convicted of a crime involving moral turpitude (CIMT). Francisco filed an unsuccessful application for discretionary relief of cancellation of removal. The BIA dismissed Francisco’s appeal, citing Matter of Diaz-Lizarraga (2016), in which the BIA promulgated a broader standard for determining whether a larceny offense constituted a categorical CIMT and holding that New York’s second-degree grand larceny statute defines a categorical CIMT because it requires the accused to take or withhold property with the intent to permanently or virtually permanently appropriate it or deprive the rightful owner of its use.The Third Circuit vacated, joining other circuits in ruling that the BIA should not have retroactively applied Diaz-Lizarraga. An alien defendant’s decision about whether to plead guilty, implicate distinctively weighty reliance interests; there is no discernable BIA uniformity interest in retroactively applying Diaz-Lizarraga. The BIA uniformly applied the prior standard for more than seven decades before changing course. View "Francisco-Lopez v. Attorney General United States" on Justia Law

The Fourth Circuit denied petitions for review of the BIA's final order of removal. Applying the modified categorical approach, the court held that defendant's prior conviction for distribution of cocaine under Virginia Code 18.2-248, including distribution of that substance as an accommodation under Virginia Code 18.2-248(D), satisfies the federal definitions of an "aggravated felony" and of a crime "relating to a controlled substance" pursuant to 8 U.S.C. 1227(a)(2)(A)(iii), 1227(a)(2)(B)(i). The court also held that the district court did not abuse its discretion in denying petitioner's motion to reconsider. View "Cucalon v. Barr" on Justia Law

The Eighth Circuit denied a petition for review of the BIA's determination that defendant committed two crimes involving moral turpitude. The court held that the BIA did not err in determining that petitioner's conviction for the Minnesota crimes of Criminal Sexual Conduct in the Fifth Degree and knowing failure to comply with Minnesota's sex offender registration statute were crimes involving moral turpitude. The court also held that petitioner failed to exhaust his remaining arguments and therefore declined to consider them. View "Bakor v. Barr" on Justia Law

The Ninth Circuit granted in part a petition for review of the BIA's finding that petitioner was removable based on his conviction for possession of visual presentation depicting sexual conduct of a person under 16 years of age, in violation of Nevada Revised Statutes (N.R.S.) 200.730.Applying the categorical approach, the panel compared the elements of N.R.S. 200.730 with the applicable definition of "sexual abuse of a minor," which requires proof of three elements. The panel held that N.R.S. 200.730 punishes a broader range of conduct because the Nevada statute does not require proof that the offender participated in sexual conduct with a minor. Therefore, petitioner's conviction did not qualify as sexual abuse of a minor. The panel explained that, with a possession-only offense such as N.R.S. 200.730, the minor depicted in the image is not the direct object of the offender's conduct, which is a necessary predicate for the offense to qualify as sexual abuse of a minor. View "Mero v. Barr" on Justia Law

The Attorney General imposed conditions on the Edward Byrne Memorial Justice Assistance Grant Program (Byrne JAG), 34 U.S.C.10151, which the primary source of federal criminal justice enforcement funding for state and local governments. The district court granted a preliminary injunction as to conditions that required that state or local officials honor requests to provide federal agents advance notice of the scheduled release of aliens in custody and that state or local correctional facilities give federal agents access to aliens in their custody. The Seventh Circuit upheld a nationwide injunction. The district court granted a permanent injunction and invalidated a condition requiring that state or local governments certify their compliance with 8 U.S.C. 1373, which prohibits them from restricting their officials from communicating information regarding the citizenship or immigration status of any individual to the INS, was unconstitutional but stayed the injunction to the extent that it applied beyond Chicago.The Seventh Circuit again held that the Attorney General cannot pursue the executive branch's policy objectives through the power of the purse or the arm of local law enforcement, rejecting the Attorney General’s assertion that Congress itself provided that authority in the language of the statutes. Chicago has determined that effective law enforcement requires the cooperation of its undocumented residents; such cooperation cannot be accomplished if those residents fear immigration consequences should they communicate with the police; and, local law enforcement must remain independent from federal immigration enforcement. The Byrne JAG grant was enacted to support the needs of local law enforcement to help fight crime, but “is being used as a hammer to further a completely different policy of the executive branch.” States do not forfeit all autonomy over their own police power merely by accepting federal grants. There is no reason to stay the application of the injunction. View "City of Chicago v. Barr" on Justia Law