Justia Immigration Law Opinion Summaries

Defendant-appellant and Jordanian citizen Kamal Abdul Fryhaat had been living in the United States for over 30 years. In 2001, he pleaded guilty to various drug-related offenses and admitted to having suffered a prior prison term. In exchange, defendant was released on his own recognizance on various terms and conditions. Defendant subsequently violated his release terms and was sentenced to six years eight months in state prison. Approximately 17 years later, in 2018, as he was facing deportation proceedings, defendant filed a motion to vacate his guilty plea pursuant to Penal Code section 1473.7, arguing his conviction was legally invalid and not knowingly and intelligently made because neither his trial counsel nor the court advised him about the immigration consequences of his guilty plea. The trial court summarily denied defendant’s motion, and defendant appealed. On appeal, he argued the trial court erred in denying his motion to vacate his conviction because the court summarily denied his motion without a hearing, without his presence, and without appointed counsel in violation of section 1473.7. He therefore requested the matter be remanded for a hearing consistent with the provisions of section 1473.7. The State conceded defendant was partially correct, and that the matter must be remanded. Specifically, the State asserted defendant was entitled to a hearing, but as recent amendments to section 1473.7 made clear, defendant did not have a right to appointed counsel and his presence could adequately be protected by use of telephonic or videoconference services. After review, the Court of Appeal reversed the order denying defendant’s motion to vacate his conviction and remanded with instructions to the trial court to conduct a hearing pursuant to section 1473.7, evaluate defendant’s request for appointed counsel, and to consider the motion on its merits. View "California v. Fryhaat" on Justia Law

A Notice to Appear that is defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018), cannot be cured by a subsequent Notice of Hearing and therefore does not terminate the residence period required for cancellation of removal. The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's conclusion that petitioner was ineligible for cancellation of removal. The IJ concluded that petitioner was admitted in February 2002 when he became a legal permanent resident (LPR) and that the March 2008 Notice to Appear terminated his residence period. Therefore, he was in the United States for only six years and one month, and was thus ineligible for cancellation of removal.The panel held, however, that petitioner's Notice of Appear did not terminate his residence because it lacked time-and-place information, and the notice could not be cured by the subsequent Notice of Hearing that was sent to him. The panel explained that the law does not permit multiple documents to collectively satisfy the requirements of a Notice to Appear, and thus petitioner never received a valid Notice to Appear and his residency continued beyond 2008. Therefore, petitioner fulfilled the seven year requirement and was eligible for cancellation of removal. View "Lorenzo Lopez v. Barr" on Justia Law

The Fifth Circuit held that the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) was not impermissibly retroactive as applied to petitioner, because no adjustment-application was pending at the time of the reinstatement order, and his previous adjustment application was denied due to his failure to prosecute. The court held that petitioner's contention that his entry was lawful because he was allegedly waved through at an entry checkpoint was foreclosed by precedent. Accordingly, the court denied the petition for review. View "Terrazas-Hernandez v. Barr" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision denying petitioner's appeal of the IJ's determinations that petitioner was removable and ineligible for asylum. The IJ determined that petitioner's prior California felony conviction for possession of marijuana was an "aggravated felony" and an offense "relating to a controlled substance" that rendered her removable. However, petitioner argued that the conviction was no longer a predicate to removal because it was recalled and reclassified as a misdemeanor under California's Proposition 64.The panel held that valid state convictions retain their immigration consequences even when modified or expunged for reasons of state public policy. Therefore, the panel agreed with the BIA that petitioner's initial conviction retained its immigration consequences and rendered her removable. View "Prado v. Barr" on Justia Law

The Second Circuit denied a petition for review of the BIA's order of removal based on petitioner's conviction for an aggravated felony. The court held that petitioner's conviction for conspiracy in the second degree to commit a felony -- murder in the second degree in this case -- under New York law was an aggravated felony. The court applied the categorical approach and held that second degree murder is clearly an aggravated felony within the federal definition. View "Santana-Felix v. Barr" on Justia Law

After appellants, each accompanied by a minor child, stated to Customs and Border Patrol (CBP) that they feared persecution in their home countries, they were arrested and charged with misdemeanor improper entry and detained in El Paso. Their children were transferred to the custody of the Office of Refugee Resettlement (ORR). In these consolidated appeals, appellants argued that they should not have been criminally prosecuted because they sought asylum, and being separated from their children rendered their convictions constitutionally infirm.The Fifth Circuit affirmed the district court's judgment in favor of the government, holding that nothing in 8 U.S.C. 1225(b)(1)(A)(ii) prevents the government from initiating a criminal prosecution before or even during the mandated asylum process, nor have appellants shown that qualifying for asylum would be relevant to whether they improperly entered; appellants' argument that deporting them without their children amounted to cruel and unusual punishment under the Eighth Amendment failed because the four deported appellants were found inadmissible during post-conviction civil immigration proceedings, rather than criminal proceedings; the court declined to apply the outrageous government conduct doctrine in this case; appellants' claims of right of access to evidence were rejected; appellants' fair trial claim repackaged appellants' unsuccessful Brady claim and failed for the same reasons; and the government did not impermissibly burden appellants' right against self-incrimination. View "United States v. Vasquez-Hernandez" on Justia Law

Defendant Alexander Miles appealed the denial of his second petition for a writ of coram nobis. He pleaded guilty in 2009 to submitting a false affidavit in connection with an application for a visa for a 14-year-old girl from Cambodia to whom he was engaged. He already unsuccessfully challenged that judgment in a direct appeal, a motion for relief under 28 U.S.C. 2255, and a previous petition for a writ of coram nobis. The Tenth Circuit affirmed the denial of his second petition because each of its claims for relief either had been raised by Defendant in earlier proceedings and rejected by the Tenth Circuit, or could have been raised in those proceedings and was inexcusably neglected. View "United States v. Miles" on Justia Law

Defendant Sara Salcido provided immigration services. Under the Immigration Consultant Act (Act), with certain exceptions, it is illegal for a person to act as an “immigration consultant” (as defined in the Act) unless he or she has complied with a host of consumer protection requirements, such as passing a background check and filing a bond. Defendant failed to comply with these. As a result, defendant was 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. Defendant contended the Act was preempted by federal law. She demurred to the complaint on this ground. The Court of Appeal determined federal law did not preempt the application of the Act to defendant. View "California v. Salcido" on Justia Law

The Fifth Circuit affirmed the district court's denial of petitioner's motion to dismiss the indictment against him for illegal reentry after conviction of a felony. Petitioner argued that 8 U.S.C. 1326(d)'s bar on collateral attacks did not attach because his 2001 removal order was void ab initio because it was based on an unconstitutionally vague statute. Petitioner had previously waived his right to appeal the removal order stemming from the 2001 felony conviction for driving while intoxicated under Texas law.Reviewing de novo, the court rejected petitioner's argument and held that petitioner failed to exhaust the administrative remedies that were available to him. The court held that petitioner's argument upends Congress's mandate that collateral review in the course of reentry prosecutions be available only in a narrow set of circumstances. Furthermore, such an argument enlarges the Supreme Court's observation that it is precisely the unavailability of effective judicial review of the administrative determination which warrants a collateral attack at a later criminal proceeding. In this case, both administrative remedies and judicial review of the removal order were available to petitioner and he chose not to pursue them. View "United States v. Parrales-Guzman" on Justia Law

The Fifth Circuit affirmed defendant's two special conditions of supervised release: (1) that he surrender to immigration authorities until deported and (2) that he remain outside the United States until authorized to reenter. The court held that the surrender condition was consistent with the district court's intent that defendant be deported after serving his prison term. The court held that the no-entry condition did not conflict with the oral sentence because it was duplicative of the mandatory condition that defendant was prohibited from violating the law if he reentered the United States. View "United States v. Vasquez-Puente" on Justia Law