Justia Immigration Law Opinion Summaries

The Eighth Circuit denied a petition for review of the determination that petitioner was removable under 8 U.S.C. 1227(a)(2)(A)(iii) because he was convicted in Iowa of committing an aggravated felony. Determining that it had jurisdiction, the court held that DHS was correct when it concluded that petitioner's Iowa forgery conviction qualified as an aggravated felony for purposes of section 1227(a)(2)(iii). The court held that, although DHS erred by issuing a Final Administrative Removal Order before petitioner's deadline to respond expired, petitioner failed to show prejudice. In this case, petitioner's state law crime unarguably qualified as an aggravated felony and there was nothing petitioner could have offered that would change the result. View "Salazar v. Barr" on Justia Law

The Eighth Circuit denied a petition for review of the BIA's decision upholding the IJ's determination that petitioner was removable. The court held that petitioner failed to exhaust his administrative remedies with regard to his challenge to the determination that his firearm offense was a particularly serious crime; petitioner's argument regarding the purported futility of raising the issue to the BIA was unpersuasive; the IJ acted within its authority by considering the facts and circumstances set forth in the criminal complaint; the unlawful-possession-of-a-firearm offense qualified as a particularly serious crime and barred withholding of removal; and there was no reviewable claim of error in regard to the BIA's denial of relief under the Convention Against Torture. View "Marambo v. Barr" on Justia Law

Corral, a native of Mexico, was admitted to the U.S. as a lawful permanent resident in 1994. In 1999, he applied for naturalization. He became a U.S. citizen in 2000. He was then indicted on seven counts of aggravated criminal sexual abuse. Less than five months after becoming a U.S. citizen, Corral pleaded guilty to Aggravated Criminal Sexual Abuse, under Illinois law, which then stated, “sexual conduct with a victim who was under 18 years of age when the act was committed and the accused was a family member.” In 2017, the government sought to revoke Corral’s citizenship on the grounds that he obtained his citizenship illegally and by willful misrepresentation or concealment of a material fact, 8 U.S.C. 1451(a), in that Corral lacked good moral character because he committed a crime involving moral turpitude within the statutory period of five years preceding his application for citizenship. The Seventh Circuit affirmed a ruling in favor of the government, rejecting defenses of “laches” and selective prosecution. Whether Corral made a willful misrepresentation or concealed a material fact is irrelevant because these factors do not relate to the ground for Corral’s denaturalization. View "United States v. Valenzuela" on Justia Law

The Fourth Circuit affirmed the district court's denial of defendant's motion to dismiss the indictment. Defendant had pleaded guilty to illegally being in the United States after having been removed after a felony conviction. The district court held that defendant failed to establish that the removal was fundamentally unfair and denied his motion to dismiss.The court held that when an expedited removal is alleged to be an element in a criminal prosecution, the defendant in that prosecution must, as a matter of due process, be able to challenge the element if he did not have a prior opportunity to do so. Because the rules attendant to expedited removal preclude review of the removal order, the defendant in a 8 U.S.C. 1326 prosecution premised on an expedited removal order under 8 U.S.C. 1225(b)(1)(A)(i) must be given the opportunity in the section 1326 prosecution to challenge the validity of that order. Because section 1225(b)(1)(D) strips courts in section 1326 prosecutions from hearing a defendant's challenge to an expedited removal element, the court held that this jurisdiction-stripping provision is unconstitutional.On the merits, the court held that defendant did not sufficiently demonstrate a reasonable probability that the Attorney General would have allowed him to withdraw his application for admission under section 1225(a)(4), and thus he failed to show prejudice, as required to demonstrate that his removal was fundamentally unfair. View "United States v. Silva" on Justia Law

The Fourth Circuit held that it had jurisdiction over a petition for review of the IJ's determination that petitioner was removable, because petitioner had exhausted his administrative remedies.The court also held that petitioner's prior Virginia offense of participating in a criminal street gang was not categorically a crime involving moral turpitude. Therefore, petitioner's prior conviction could not be a basis for removing him. Accordingly, the court granted the petition for review, vacated the order of removal, and remanded with instructions. View "Rodriguez Cabrera v. Barr" on Justia Law

Petitioner sought review of the BIA's order denying his untimely motion to reopen his removal proceedings. Petitioner alleged that he received ineffective assistance of counsel during his removal proceedings. The BIA agreed that petitioner's prior counsel performed deficiently, but denied the motion to reopen after concluding that he failed to show prejudice.The Ninth Circuit granted the petition for review with respect to petitioner's claims for deferral of removal under the Convention Against Torture (CAT) and relief under former 8 U.S.C. 212(c). The panel held that the BIA analyzed petitioner's new prejudice evidence under standards more stringent than were proper. Although the more-likely-than-not standard governs the merits of a CAT claim, in the context of a motion to reopen for ineffective assistance, the petitioner need not show that he would win or lose on any claims. Rather, the question with respect to prejudice is whether counsel's deficient performance may have affected the outcome of the proceedings, which means that the petitioner need only show plausible grounds for relief. The panel denied the petition for review with respect to all other claims and held that the BIA did not abuse its discretion in rejecting petitioner's claims. Accordingly, the panel remanded for further proceedings. View "Flores v. Barr" on Justia Law

The en banc court granted a petition for review of the BIA's decision affirming the IJ's denial of cancellation of removal. The BIA held that petitioner failed to demonstrate that her prior conviction was not for a disqualifying federal offense and therefore had not met her burden of showing that she was eligible for cancellation of removal.The en banc court held that, in the context of eligibility for cancellation of removal under 8 U.S.C. 1229b(b), a petitioner's state-law conviction does not bar relief where the record is ambiguous as to whether the conviction constitutes a disqualifying predicate offense. The en banc court held that the statute under which petitioner was convicted was overbroad at the time of her conviction. The en banc court overruled its decision in Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), that, under Moncrieffe v. Holder, 569 U.S. 184 (2013), an ambiguous record of conviction does not demonstrate that a petitioner was convicted of a disqualifying federal offense. Accordingly, the panel reversed and remanded. View "Marinelarena v. Barr" on Justia Law

The Fourth Circuit affirmed the district court's ruling on defendant's motion to dismiss the indictment. The court held that the premise of defendant's argument -- – that the purported filing defect in his case deprived the immigration court of authority to enter a removal order, so that he may collaterally challenge that order in subsequent criminal proceedings -- was incorrect. Rather, there was no defect, because the applicable regulations did not require that the information identified by defendant, a date and time for a subsequent removal hearing, be included in the "notice to appear" that was filed with an immigration court to initiate the proceedings. View "United States v. Cortez" on Justia Law

Lopez was charged with possessing a firearm as an alien “illegally or unlawfully in the United States,” 18 U.S.C. 922(g)(5)(A). The district court thought that section 922(g)(5)(A) as applied to Lopez was unconstitutionally vague in light of administrative guidance from the Department of Homeland Security, giving “prosecutorial discretion” as to certain (DACA) aliens who had entered this country without authorization as children. Lopez, along with his family, entered the U.S. without authorization when he was four years old and had obtained deferred action under DACA in 2017. Lopez was arrested for DUI and officers found a 9mm pistol and a 12-gauge shotgun in his vehicle. The Sixth Circuit reversed, rejecting his argument that once he was granted relief under DACA, Lopez was “lawfully present” in the United States. The Secretary’s grant of deferred action under DACA, therefore, did not, and could not, change Lopez’s status as an alien “illegally or unlawfully in the United States” for purposes of section 922(g)(5)(A). That relief represented only the Secretary’s decision temporarily not to prosecute him for that status. View "United States v. Lopez" on Justia Law

Payano, a citizen of the Dominican Republic, came to the U.S. legally at age 12. In 1998, at age 18, he pleaded guilty to first-degree possession of a controlled substance. In 2001, after completing his sentence, he was removed. Payano illegally reentered the U.S. in 2012. During a 2017 Pennsylvania traffic stop, the trooper found a kilogram of cocaine hidden in Payano's vehicle. Payano was charged with illegal reentry and possession with intent to distribute 500 grams or more of cocaine. The district court agreed that the drugs were the fruit of an unconstitutional search. The government dismissed the drug charge. Payano pleaded guilty to illegal reentry.Because Payano’s 1998 conviction was for drug possession, not drug distribution, it was a felony under federal law, not an aggravated felony. Payano’s plea was under 8 U.S.C. 1326(b)(1), which carries a maximum sentence of 10 years. The PSR calculated the Guidelines range as 24-30 months’ imprisonment and correctly listed the statutory maximum, but cited 1326(b)(2) (illegal reentry following an aggravated felony with a 20-year maximum). The government sought an upward variance because Payano had been “convicted of an aggravated felony" and had the court “correct” the PSR to reflect that Payano had pleaded guilty to “aggravated reentry.” Payano’s counsel agreed. The court imposed a four-year sentence. The Third Circuit vacated, agreeing that there was error but declining to extend the “Molina-Martinez“ presumption of prejudice because a mistaken understanding about the applicable statutory range, without more, has far less bearing on the actual sentence than a Guidelines-calculation error. The error did affect Payano’s substantial rights and without correction would seriously affect the fairness, integrity, or public reputation of judicial proceedings. View "United States v. Payano" on Justia Law