Justia Immigration Law Opinion Summaries

Mohamed Awad appealed a district court order denying his motion to withdraw his guilty plea to a charge of knowingly voting when not qualified to do so. On appeal, Awad argued the district court should have allowed him to withdraw his guilty plea because he was not adequately advised under N.D.R.Crim.P. 11(b) of the possible immigration consequences of pleading guilty, and because he received ineffective assistance of counsel. Finding no reversible error, the North Dakota Supreme Court affirmed the district court order. View "North Dakota v. Awad" on Justia Law

The Eighth Circuit denied a petition for review of the BIA's final order of removal following her appeal of the IJ's removal order denying her applications for asylum and withholding of removal. The court held that petitioner's Minnesota drug convictions constituted grounds for removal and rejected petitioner's claim that the statute was overbroad and indivisible. The court lacked jurisdiction to review petitioner's claim that she was not subject to removal under 8 U.S.C. 1182(a)(6)(A)(i). The court also held that the criminal alien bar precluded the court's review of the BIA's decision on petitioner's applications for asylum and withholding of removal. In this case, petitioner did not qualify for the extraordinary circumstances exception to the one-year deadline for filing an asylum application, and the court lacked jurisdiction to review petitioner's claim that she suffered persecution as a member of a protected group. The court also held that the BIA did not abuse its discretion in declining to terminate the removal proceedings, and petitioner's remaining claims were rejected. View "Villegas Rendon v. Barr" on Justia Law

After the United States simultaneously prosecuted and removed defendant, he sought to dismiss the indictment. Defendant argued that the Executive Branch violated his rights under the Bail Reform Act (BRA) and the Constitution by simultaneously proceeding with prosecution and removal.The Eighth Circuit held that the BRA and the Immigration and Nationality Act (INA) co-exist, and that Subsection 3142(d) of the BRA does not conflict with removal under the INA. The court explained that the subsection regulates a "judicial officer," not an Executive Branch official, like an ICE agent; it requires the judicial officer to provide notice and ten-day detention, so immigration officials may detain a non-citizen defendant who poses a risk of flight or danger, but does not mandate that immigration officials detain then and only then; and, if immigration officials do detain then, the subsection does not state that the judicial officer or prosecution must dismiss criminal charges. Furthermore, if the immigration official does not detain within ten days, the non-citizen defendant shall be treated in accordance with the other provisions. The other provisions of the BRA do no preclude removal under the INA. The court rejected defendant's remaining arguments to the contrary. View "United States v. Pacheco-Poo" on Justia Law

Jose Lira-Ramirez was indicted on a charge of illegally reentering the United States, an element of which was the existence of a prior removal order. Though Lira-Ramirez had been removed in earlier proceedings, he moved to dismiss the indictment, arguing that the immigration judge lacked jurisdiction over the earlier proceedings because the notice to appear was defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018). The district court denied the motion to dismiss the indictment, and Lira-Ramirez appealed. After review, the Tenth Circuit affirmed, concluding that precedents foreclosed Lira-Ramirez’s jurisdictional challenge: “[T]wo precedential opinions that [the time and date] omission does not create a jurisdictional defect.” The Court thus affirmed denial of Lira-Ramirez’s motion. View "United States v. Lira-Ramirez" on Justia Law

Grayson does business under the name Gire Roofing. Grayson and Edwin Gire were indicted for visa fraud, 18 U.S.C. 1546 and harboring and employing unauthorized aliens, 8 U.S.C. 1324(a)(1)(A)(iii). On paper, Gire had no relationship to Grayson as a corporate entity. He was not a stockholder, officer, or an employee. He managed the roofing (Grayson’s sole business), as he had under the Gire Roofing name for more than 20 years. The corporate papers identified Grayson’s president and sole stockholder as Young, Gire’s girlfriend. Gire, his attorney, and the government all represented to the district court that Gire was Grayson’s president. The court permitted Gire to plead guilty on his and Grayson’s behalf. Joint counsel represented both defendants during a trial that resulted in their convictions and a finding that Grayson’s headquarters was forfeitable. Despite obtaining separate counsel before sentencing, neither Grayson nor Young ever complained about Gire’s or prior counsel’s representations. Neither did Grayson object to the indictment, the plea colloquy, or the finding that Grayson had used its headquarters for harboring unauthorized aliens.The Seventh Circuit affirmed. Although Grayson identified numerous potential errors in the proceedings none are cause for reversal. Grayson has not shown that it was deprived of any right to effective assistance of counsel that it may have had and has not demonstrated that the court plainly erred in accepting the guilty plea. The evidence is sufficient to hold Grayson vicariously liable for Gire’s crimes. View "United States v. Grayson Enterprises, Inc." on Justia Law

Ragbir, a green card holder from Trinidad and Tobago, was convicted of mortgage fraud in 2000. On his attorney’s advice, Ragbir agreed that the actual loss was $350,000-$500,000, believing that his convictions alone made him deportable. The Third Circuit affirmed Ragbir’s convictions and sentence. Ragbir never sought post-conviction relief. DHS commenced removal proceedings. Ragbir then learned that his stipulation to a loss of more than $10,000 made him deportable. Ragbir’s immigration counsel represented that an attorney would be hired to attempt to vacate the underlying convictions. Ragbir still did not pursue a collateral attack. The IJ ordered him removed; the BIA and Second Circuit upheld the decision. In the meantime, Ragbir married an American citizen and obtained an immigrant visa. The BIA denied a motion to reopen. DHS eventually elected not to renew its discretionary stay of removal. Ragbir then challenged his detention, asserting that his conviction should be overturned because jury instructions given at his trial were erroneous in light of later Supreme Court rulings and asserting ineffective assistance of counsel. The Third Circuit affirmed the denial of the petition. Ragbir had the ability to bring all his claims at least six years before his 2012 petition for coram nobis. He provides no sound reason for his delay. View "Ragbir v. United States" on Justia Law

Alfredo Juarez appealed the denial of his motion for postconviction relief. In 2012, Juarez pleaded guilty to one class 1 misdemeanor count of possessing a schedule V controlled substance, in exchange for the dismissal of a charge of felony possession. As stipulated in the plea agreement, he received a sentence to two years of drug court probation. At the time of his offense and plea, the defendant was a citizen of Mexico and a lawful permanent resident of the United States. A month after his sentencing, the defendant violated the conditions of his probation, received a suspended two-day jail sentence, and two weeks later, after violating the conditions of that suspension, served those two days in jail. After he received an additional three-day jail sentence for again violating his probation, federal Immigration Customs and Enforcement (“ICE”) officers began removal proceedings. Defendant was eventually deported to Mexico. In October 2012 and January 2013, defendant filed motions for postconviction relief, challenging the effectiveness of his plea counsel’s representation and, as a result, the constitutional validity of his guilty plea. Over a period of three days, the district court heard these motions, including the testimony of defendant, taken by video over the internet; the testimony of his plea counsel; and the testimony of an immigration attorney retained by him in 2011, prior to his acceptance of the plea agreement. With regard to his challenge to the effectiveness of his counsel, the district court found both that defense counsel adequately advised his client concerning the immigration consequences of his plea of guilty to misdemeanor drug possession and that, in any event, there was no reasonable probability Juarez would not have taken the plea. The intermediate appellate court similarly found that counsel’s advice fell within the range of competence demanded of attorneys in criminal cases, but as a result of that finding, the appellate court considered it unnecessary to address the question whether counsel’s performance prejudiced Juarez. The Colorado Supreme Court thus concluded that because Juarez conceded he was advised and understood that the misdemeanor offense to which he pleaded guilty would make him “deportable,” defense counsel’s advice concerning the immigration consequences of his plea correctly informed him of the controlling law and therefore did not fall below the objective standard of reasonableness required for effective assistance concerning immigration advice. The judgment of the court of appeals was therefore affirmed. View "Juarez v. Colorado" on Justia Law

Defendant Rodolfo Gonzalez-Fierro, a Mexican citizen, challenged his conviction for unlawfully re-entering the United States after a prior removal. That conviction was based in part on Gonzalez-Fierro’s prior expedited removal from the United States in 2009. Due process required that, before the United States can use a defendant’s prior removal to prove a 8 U.S.C. 1326(a) charge, “there must be some meaningful review” of the prior administrative removal proceeding. In light of that, Congress provided a mechanism in section 1326(d), for a defendant charged with a section 1326(a) offense to challenge the fundamental fairness of his prior unreviewed removal. But, pursuant to 8 U.S.C. 1225(b)(1)(D), the section 1326(d) mechanism applied only to prior formal removal orders, and not to prior expedited removal orders like Gonzalez-Fierro’s. "Expedited removals apply to undocumented aliens apprehended at or near the border soon after unlawfully entering the United States. Different from formal removals, expedited removals are streamlined - generally there is no hearing, no administrative appeal, and no judicial review before an expedited removal order is executed." Applying the Supreme Court’s reasoning in United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the Tenth Circuit concluded section 1225(b)(1)(D) was unconstitutional because it deprives a defendant like Gonzalez-Fierro of due process. Without section 1225(b)(1)(D), the Court reviewed Gonzalez-Fierro's 2009 expedited removal order, and concluded he failed to establish that removal was fundamentally unfair. On that basis, the Court affirmed Gonzalez-Fierro's section 1326(a) conviction. View "United States v. Gonzalez-Fierro" on Justia Law

Rosa, a citizen of the Dominican Republic, was admitted to the U.S. as a legal permanent resident in 1992, as a child. In 2004, he pled guilty to possession and sale of a controlled substance (cocaine) within 1,000 feet of school property under the New Jersey School Zone Statute. Eleven years later, Rosa was charged as removable for the conviction of a controlled substances offense and of an “aggravated felony” for a “drug trafficking crime.” Rosa denied removability for the aggravated felony, which would have precluded him from being eligible for cancellation of removal.The IJ applied the “categorical approach” and compared the New Jersey School Zone Statute with the federal statute for distribution “in or near schools and colleges” and concluded that the state statute swept more broadly than its federal counterpart in both proscribed conduct and its definition of “school property,” so that Rosa’s state conviction was not an “aggravated felony” under federal law. The IJ granted cancellation of removal. The Board of Immigration Appeals held that Rosa’s state conviction could be compared to the federal statute generally prohibiting the distribution of a controlled substance as a lesser included offense of the Federal School Zone Statute and ordered Rosa removed. The Third Circuit remanded. The categorical approach, which compares the elements of prior convictions with the elements of crimes under federal law, does not permit comparison with any federal crime but only with the “most similar” one. View "Rosa v. Attorney General United States" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision finding petitioner removable based on his robbery conviction under Oregon Revised Statutes section 164.395.The panel held that section 164.395 is not a categorical theft offense and therefore not an aggravated felony under section 101(a)(43)(G) of the Immigration and Nationality Act. The panel agreed with petitioner that section 164.395 exceeds the generic definition of a theft offense because it incorporates consensual takings via theft by deception, and the force elements do not impose a requirement that the defendant engage in a nonconsensual taking. Because the panel held that the statute was overbroad, the panel moved to the next step of the analysis: determining whether the statute is divisible, such that application of the modified categorical approach is appropriate. The panel held that Oregon's third-degree robbery statute is indivisible. View "Lopez-Aquilar v. Barr" on Justia Law