Justia Immigration Law Opinion Summaries

The Eleventh Circuit affirmed defendant's convictions for procuring naturalization unlawfully, in violation of 18 U.S.C. 1425(a), and misuse of evidence of an unlawfully issued certificate of naturalization, in violation of 18 U.S.C. 1423.The court held that the annotated Form N-400 was (1) admissible non-hearsay as an adopted admission of a party-opponent under Federal Rule of Evidence 801, and, (2) alternatively, was properly admitted under the public record hearsay exception in Federal Rule of Evidence 803. Furthermore, the officer's red marks in the annotated Form N-400 Application was not testimonial and did not violate the Confrontation Clause. The court also held that the district court did not abuse its discretion by admitting defendant's post-Miranda statement, and the evidence was sufficient to sustain defendant's conviction as to Count 1. View "United States v. Santos" on Justia Law

The Ninth Circuit affirmed defendant's conviction for illegal reentry by a previously deported alien in violation of 8 U.S.C. 1326, and the revocation of supervised release. Defendant argued that he should have automatically become a United States citizen as a result of the naturalization of one of his parents prior to the reentry at issue. However, because his parents were married, and the derivative citizenship statute at 8 U.S.C. 1432(a) required married parents to both naturalize to confer citizenship to their child, he did not become a citizen. Defendant claimed that, by making his parents' marital status a factor in the derivative citizenship determination, section 1432(a) violates the Constitution's equal protection guarantee.The panel held that rational basis review applies to section 1432(a) for reasons separate and apart from those relied on in Barthelemy v. Ashcroft, 329 F.3d 1062 (9th Cir. 2003). Furthermore, Barthelemy's holding that section 1432(a) is rational is not irreconcilable with Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017). Therefore, the panel was still bound by that portion of Barthelemy's reasoning and by its ultimate holding that section 1432(a) is constitutional. Even if the panel were not bound by the holding in Barthelemy, the panel concluded that section 1432(a) is rational because protecting the parental rights of the non-citizen parent is plainly a legitimate legislative purpose. View "United States v. Mayea-Pulido" on Justia Law

Eight-year-old Quinteros and his mother came to the U.S. from El Salvador in 2001. When he was 13, Quinteros joined the gang MS-13. In 2011, Quinteros was indicted for conspiracy to commit assault with a dangerous weapon, 18 U.S.C. 1959(a)(6). The planned gang attack never occurred. Quinteros later pled guilty and was sentenced to 30 months’ imprisonment. In prison, Quinteros left MS-13 to follow Christianity. Other MS-13 members in prison told him that when he was deported “things are going to change. There’s no getting out over there.” Quinteros was charged as removable for having committed an aggravated felony, 8 U.S.C. 1101(a)(43)(F), (U), and (J). Quinteros checked the form box to contest his deportability but failed to follow up with additional documentation. Quinteros then sought withholding of removal. An asylum officer determined that Quinteros demonstrated a reasonable fear that he would be tortured in El Salvador. Before an IJ, Quinteros testified and presented studies and reports, that discussed the perception and treatment of individuals with tattoos in El Salvador. The Third Circuit vacated the BIA’s rejection of Quinteros’s claims. Quinteros’s conviction under 18 U.S.C. 1959(a)(6) is not an aggravated felony under 8 U.S.C. 1101(a)(43)(F), (U), or (J); conviction under section 1959(a)(6) does not require an overt act and is not a categorical match for conspiracy under the Immigration Act. View "Quinteros v. Attorney General United States" on Justia Law

Aguilar-Calvo pleaded guilty to illegal reentry, 8 U.S.C. 1326(a) and (b)(1). He had been previously convicted of felony drug possession, assault, driving under the influence, and illegal reentry. In its sentencing memorandum, the government addressed18 U.S.C. 3553(a)’s sentencing factors, noting that some people are “impatient for action to protect their perceived economic interests, as promised by our duly enacted immigration policies. Aguilar-Calvo’s sentencing memorandum argued that the district court should not consider such “extraneous, inflammatory, and idiosyncratic views.” The government responded that it did not agree that these concerns are “extraneous,” noting that the guidelines recommend a higher sentence for recidivist illegal reentries and for defendants who have a prior felony conviction. The district court sentenced Aguilar-Calvo to 38 months of imprisonment after a lengthy explanation, citing 18 U.S.C. 3553(a). Aguilar-Calvo objected to “any consideration of the Government’s arguments about the political debate about illegal immigration.” The Sixth Circuit affirmed, rejecting an argument that the sentence was procedurally unreasonable. At no point in sentencing Aguilar-Calvo did the district court rely on the government’s inappropriate representations, on unreasonable speculation or on erroneous information. View "United States v. Aguilar-Calvo" on Justia Law

The Fifth Circuit reversed and remanded the district court's dismissal of a 2018 indictment charging defendant with illegal reentry in violation of 8 U.S.C. 1326. The court agreed with the government's contention that the district court erred in sustaining defendant's collateral attack on his underlying 2013 deportation order and dismissing the 2018 illegal-reentry indictment.In this case, the district court found that the IJ and the BIA erroneously classified bail jumping as an aggravated felony and the error led the IJ not to consider defendant's claims for asylum and withholding of removal. The court disagreed with the district court for two reasons: first, the district court diluted the actual prejudice standard; and second, applying the correct actual-prejudice standard, the record foreclosed any notion that defendant likely would have escaped deportation either through asylum or withholding of removal. The court saw nothing in the record indicating that defendant was likely eligible for asylum or withholding of removal. Therefore, even assuming the IJ and BIA erred in classifying defendant's bail jumping conviction as an aggravated felony, defendant still could not show actual prejudice under section 1326(d). View "United States v. Ramirez-Cortinas" on Justia Law

Defendant-appellant Robert Vivar pled guilty to possession of materials with the intent to manufacture methamphetamine. Defendant was placed on probation for three years, and as a condition of probation was to serve one year in county jail. He also received a referral to the Residential Substance Abuse Treatment (RSAT) program. Shortly after his release, defendant was removed from the country as a consequence of his plea. Over a decade later, defendant filed a motion to vacate his conviction pursuant to Penal Code section 1473.7. The trial court denied defendant’s motion. On appeal, defendant argued the trial court erred in denying his motion to vacate his guilty plea because his trial counsel was ineffective in failing to investigate and advise defendant of the immigration consequences of his plea and for failing to defend or mitigate the judgment. Defendant also argued that his plea must be vacated because it was legally invalid. Finding no reversible error, the Court of Appeal affirmed. View "California v. Vivar" on Justia Law

The Second Circuit denied a petition for review of the BIA's decision affirming the IJ's determination that petitioner was removable and ineligible for cancellation of removal. The court held that petitioner's conviction under New York Penal Law 110.00, 130.45 for attempted oral or anal sexual conduct with a person under the age of fifteen constitutes sexual abuse of a minor, and was therefore an aggravated felony under the Immigration and Nationality Act. The court explained that petitioner's conviction under the New York statute did not encompass more conduct than the generic definition and could not realistically result in an individual's conviction for conduct made with a less than knowing mens rea. View "Acevedo v. Barr" on Justia Law

Defendant Sara Salcido was in the business of providing immigration services — typically, obtaining visas for her clients that would allow them to stay in the United States legally. Defendant failed to comply with the consumer protection requirements outlined in the Immigration Consultant Act, and was ultimately convicted on one count of misdemeanor unlawfully engaging in the business of an immigration consultant. The State argued, however, that each time defendant took money from a client in exchange for providing immigration services, she was committing theft by false pretenses, because she was not a legally qualified immigration consultant under state law. The trial court agreed; thus, it also convicted her on six counts of grand theft, and two counts of petty theft. It dismissed two additional counts of grand theft as time-barred. Defendant was placed on probation for five years. In the published portion of its opinion, the Court of Appeal held federal law did not preempt the application of the Act to defendant. In the unpublished portion, the Court held one of defendant’s probation conditions had to be stricken. Accordingly, judgment was affirmed as modified. View "California v. Salcido" on Justia Law

George Job appealed the denial of his motion to withdraw his 2008 guilty plea to the charge of aggravated assault. Job argued the district court abused its discretion by determining a manifest injustice did not result from a 2010 resentencing following the revocation of his probation. He contended the resentencing was illegal and transformed his original non-deportable offense into a deportable offense. Finding no reversible error, the North Dakota Supreme Court affirmed. View "North Dakota v. Job" on Justia Law

The Ninth Circuit granted a petition for review of an ICE order reinstating petitioner's prior removal order. Determining that it had jurisdiction, the panel held that petitioner timely challenged the order reinstating his prior removal order.Based on In Matter of Farinas, 12 I. & N. Dec. 467 (BIA 1967), the panel held that petitioner has shown a gross miscarriage of justice. In this case, there was no valid legal basis for petitioner's removal order at the time of its execution in 2008 because the conviction on which it had been based had been expunged in 1999. Therefore, the panel held that a collateral attack on petitioner's prior removal order was appropriate in this case. The panel also held that there was no diligence requirement that limits the time during which a collateral attack on that deportation or removal order may be made based on a showing of gross miscarriage of justice. The panel did not reach petitioner's due process and regulatory arguments. View "Vega-Anguiano v. Barr" on Justia Law