Justia Immigration Law Opinion Summaries

California Penal Code 288(c)(1), which prohibits lewd or lascivious acts when a victim is a child of 14 or 15 years and the defendant is at least 10 years older than the child, is neither categorically a crime involving moral turpitude nor categorically a "crime of child abuse." The Ninth Circuit explained that because the offense required only sexual intent, and because a good-faith reasonable mistake of age was not a defense, a defendant was not required to have evil or malicious intent. The panel also held that section 288(c)(1) contains a single, indivisible set of elements such that the modified categorical approach did not apply.The panel granted separate petitions for review of the BIA's decision. The panel held that the BIA erred in concluding that Menendez's conviction triggered the stop-time rule and rendered her ineligible for cancellation. In regard to Rodriguez-Castellon's petition, the panel held that section 288(c)(1) was not categorically a crime of child abuse under 8 U.S.C. 1227(a)(2)(E)(1), because it was broader than the generic definition of a crime of child abuse. View "De Jesus Menendez v. Whitaker" on Justia Law

McClure-Potts contacted police about Samarin, who entered the U.S. without inspection from Ukraine. McClure-Potts claimed she was trying to adopt Samarin, who was 19 years old and that Samarin had been “speaking of Hitler against the Jews” and might have stolen a rifle. McClure-Potts provided a birth certificate indicating that Samarin was born in 1992. Police discovered that McClure-Potts had previously filed runaway reports regarding a minor son (Asher) apparently born in 1997; Samarin was posing as Asher and attending high school. The school provided a sworn statement from McClure-Potts that Samarin was born in 1997, with applications for free/reduced lunch and health benefits. Samarin claimed that he had moved in with McClure-Potts, then was told to cut ties with his family and surrender his money and his identification documents. He was forced to do household work. McClure-Potts obtained a Social Security card for "Asher," and used it to procure $7,336 in income tax credits and $13,653.28 in nutritional and health benefits. McClure-Potts was charged with Social Security Fraud, 42 U.S.C. 408(a)(6); Harboring an Illegal Alien, 8 U.S.C. 1324(a)(1)(A)(iii), (a)(2); and Unlawful Conduct Respecting Documents in Furtherance of Forced Labor, 18 U.S.C. 1589, 1590. McClure-Potts pled guilty to the Social Security Fraud and Harboring counts. Based on the amount of loss ($20,989.28) and the court’s refusal to grant an offense level reduction due to the claim that her fraud was committed “other than for profit," she was sentenced to five months. The Third Circuit affirmed. The benefits that McClure-Potts sought and received were “payment” for her harboring Samarin. View "United States v. McClure-Potts" on Justia Law

The Eighth Circuit affirmed defendant's conviction after he pleaded guilty to unlawful use of identification documents and was sentenced to time served in prison. Defendant alleged that defense counsel provided ineffective assistance in failing to adequately warn him about the immigration consequences of his guilty plea. The court held that the record was sufficient to determine that the ineffective assistance claim was without merit where defense counsel and the district court complied with Padilla v. Kentucky, 559 U.S. 356, 374 (2010). Furthermore, defendant already knew from his ICE custody and prior dealings with immigration officials that deportation was likely. View "United States v. Ramirez-Jimenez" on Justia Law

The Fifth Circuit held that, because 8 U.S.C. 1182(a)(2)(A)(i)(II) does not overcome the presumption against retroactivity, applying it to petitioner was impermissibly retroactive. The court granted the petition for review of the BIA's order finding petitioner inadmissible based on his conviction for possessing AB-CHMINACA in violation of Louisiana Revised Statutes 40.966(C). After petitioner's arrest, but before his conviction, AB-CHMINACA was added to the federal schedules of controlled substances. The court reasoned that, for purposes of retroactivity analysis, it is the timing of the defendant's conduct, not of his conviction, that controls. In this case, when petitioner possessed AB-CHMINACA, he had no notice that such a crime carried the consequence of inadmissibility. View "Lopez Ventura v. Sessions" on Justia Law

The Third Circuit affirmed the order of the district court dismissing Appellant’s petition for a writ of habeas corpus under 28 U.S.C. 2241, holding that, although Appellant has been detained pending reveal proceedings since April 2016, the Due Process Clause of the Fifth Amendment did not entitle Appellant to a new bond hearing at which the government would bear the burden of justifying his continued detention.Appellant entered the United States on a tourist visa, which he overstayed. A year later, an Interpol "Red Notice" requested by Russian identified Appellant as a fugitive wanted for prosecution on criminal fraud charges. On April 22, 2016, Immigration and Customs Enforcement detained Appellant under 8 U.S.C. 1226(a) and initiated removal proceedings, which are still pending in an immigration court. Appellant filed this action alleging that his continued detention deprived him of due process unless the government could show clear and convincing evidence of risk of flight or danger to the community. The district court dismissed the petition. The Third Circuit affirmed. The dissent argued that where the Russian government has been employing Interpol Red Notices to pursue and harass opponents of the Russian regime and where Appellant had no criminal record anywhere, Appellant was entitled to a new hearing to review the finding of “danger to the community.” View "Borbot v. Warden Hudson County Correctio" on Justia Law

The Third Circuit held that New Jersey’s drug-trafficking law of which Petitioner was convicted is coextensive with its federal counterpart and that on the date of Petitioner’s conviction, New Jersey’s list of drugs was no broader than the federal list, making Petitioner removable.Petitioner was convicted of four drug-related crimes under New Jersey law. For the latter three counts, the jury was instructed that it could convict Petitioner for attempting to transfer cocaine or to aid another in distributing cocaine. Thereafter, Petitioner was charged as removable. The government claimed (1) Petitioner’s New Jersey drug-distribution convictions under N.J. Stat. Ann. 2C:35-5(a)(1)&(b)(1) match the federal Controlled Substances Act’s ban on drug trafficking, 21 U.S.C. 841(a)(1), making Petitioner removable under 8 U.S.C. 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony; and (2) Petitioner’s convictions related to federally controlled substances, and therefore, Petitioner was removable under 8 U.S.C. 1227(a)(2)(B)(i) for having been convicted of a controlled-substance offense. The immigration judge sustained the charges. The Board of Immigration Appeals affirmed. The Third Circuit held that Petitioner was removable and ineligible for cancellation of removal because (1) New Jersey attempt law is coextensive with federal law, and (2) on the date of his conviction, Petitioner was convicted of a controlled-substance offense that is an aggravated felony. View "Martinez v. Attorney General, United States" on Justia Law

Rodriguez-Penton moved from Cuba to the U.S. when he was 15. He is a lawful permanent resident. Rodriguez-Penton was indicted for conspiracy to distribute and possess Oxycodone, retained counsel Butler, and initially cooperated but stopped because he feared for his family’s safety. The government offered Rodriguez-Penton plea deals but he entered an open guilty plea. Rodriguez-Penton’s Cuban citizenship arose during the hearing: the court stated that there was no need to review the civil rights one forfeits by pleading guilty; inquired whether, due to Rodriguez-Penton’s citizenship, there would be an early sentencing; and asked about an Immigration and Customs Enforcement detainer, but did not advise Rodriguez-Penton that pleading guilty might have adverse immigration consequences and sentenced him to a 121-month prison term. Rodriguez-Penton alleges that he learned of the deportation risk after sentencing, during a meeting with his prison counselor. Rodriguez-Penton appealed, represented by Butler, arguing that his plea was not knowing and voluntary. After hearing testimony from Butler and an interpreter, a magistrate concluded that Butler merely told Rodriguez-Penton that he did not have to worry about deportation. Rodriguez-Penton testified unequivocally that he “would not have gone to trial, even if he could not have negotiated a better plea arrangement.” The district court dismissed his 28 U.S.C. 2255 motion. The Sixth Circuit reversed. The legal standard for ineffective assistance of counsel claims has changed in the context of non-citizens faced with criminal charges. Rodriguez-Penton asserted that his decision-making process would have been different if he had been properly advised; the government has not offered any countervailing evidence that Rodriguez-Penton could not have secured a more favorable plea. View "Rodriguez-Penton v. United States" on Justia Law

In August 2000, Pablo Gonzalez pled guilty to possession for sale of marijuana. The trial court sentenced Gonzalez to 74 days in custody After serving his 74 days in custody, Gonzalez was deported in October 2000. Gonzalez reentered the United States about a year later. He subsequently was convicted of possession of a controlled substance for sale, making criminal threats, and domestic battery. In June 2002, Gonzalez was deported again. He reentered the United States, but was deported yet again in April 2017. On January 1, 2017, Penal Code section 1473.7 became effective, allowing a person no longer imprisoned or restrained to move to vacate a conviction or sentence for one of two reasons, including that "[t]he conviction or sentence is legally invalid due to prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere." In August 2017, Gonzalez moved to vacate his 2000 conviction under section 1473.7. After an evidentiary hearing, the superior court denied Gonzalez's motion. Gonzalez appealed, contending the court erred in denying his motion under section 1473.7. Specifically, he claimed he established prejudicial error based on his counsel's failure to adequately advise him of the immigration consequences of his plea and failure to seek an immigration safe alternative disposition. The Court of Appeal concluded Gonzalez's arguments lacked merit, and as such, affirmed. View "California v. Gonzalez" on Justia Law

Guerrero-Sanchez attempted to unlawfully enter the U.S.in 1998. He was removed back to Mexico. Guerrero-Sanchez reentered the U.S. without inspection. In 2012, he was arrested for his role in an Idaho-based drug trafficking organization. Guerrero-Sanchez pled guilty and was sentenced to 42 months of imprisonment. ICE reinstated his 1998 order of removal, 8 U.S.C. 1231(a)(5). The Third Circuit denied his petition for review and motion for stay of the reinstated removal order. Guerrero-Sanchez completed his sentence and was transferred to ICE custody pending removal. An asylum officer concluded that Guerrero-Sanchez's claim that he would be tortured by a drug cartel if removed to Mexico was reasonable and referred the matter to an immigration judge. The IJ found that he was ineligible for withholding relief under section 1231(b)(3) because he committed a particularly serious crime and that he did not qualify for Convention Against Torture relief because he did not establish that the Mexican Government would consent to or be willfully blind to torture. While his case remained pending before the BIA, Guerrero-Sanchez sought habeas relief, challenging his detention while he awaits a determination on whether he will be afforded country-specific protection from removal. The district court granted the petition. The Third Circuit affirmed. The detention of an alien, who has a reinstated order of removal but is also pursuing withholding-only relief is governed by the post-removal law, 8 U.S.C. 1231(a) rather than section 1226(a), the pre-removal statute; section 1231(a)(6) compels an implicit bond hearing requirement after prolonged detention. View "Guerrero-Sanchez v. Warden York County Prison" on Justia Law

A lawful permanent resident alien who has already been admitted to the United States -- who is not currently seeking admission or readmission -- can, for stop-time purposes, be rendered inadmissible by virtue of a qualifying criminal conviction. The Eleventh Circuit denied a petition for review of the BIA's decision that petitioner was barred from seeking cancellation of removal. The court held that the BIA correctly concluded that petitioner was ineligible for cancellation of removal because the stop-time rule -- triggered when he committed a crime involving moral turpitude in January 1996 -- ended his continuous residence a few months shy of the required seven-year period. View "Barton v. U.S. Attorney General" on Justia Law