Justia Immigration Law Opinion Summaries

Bedolla illegally entered the U.S. in 1991; he traveled to Mexico and re-entered at least once since then. In 2012, he was arrested for failure to appear on a charge of driving under the influence of alcohol. He was placed in removal proceedings, 28 U.S.C. 1229a, as an alien present without being admitted or paroled. His application for adjustment of status was rejected because Bedolla had departed and reentered without inspection after accruing more than one year of unlawful presence in the U.S., 8 U.S.C. 1182(a)(9)(C)(i)(I). Before a scheduled hearing date, Bedolla pleaded guilty to possession with intent to manufacture or deliver cocaine. DHS placed Bedolla in expedited administrative removal proceedings under 8 U.S.C. 1228(b). The unsigned Certificate of Service accompanying the notice did not indicate the date or manner of attempted service, but indicated that Bedolla refused to acknowledge receipt. The period for response elapsed without response. A Final Administrative Removal Order (FARO) was signed. Bedolla timely filed a petition for review of the FARO. The Immigration Judge terminated the removal proceeding. The Third Circuit denied a petition for review, rejecting claims of due process violations and that a FARO was inappropriate because Bedolla was not convicted of an “aggravated felony.” View "Bedolla-Avila v. Att'y Gen. of the United States" on Justia Law

Petitioner, a lawful asylee from Cameroon, pled guilty to bank fraud and became removable as an aggravated felon. After petitioner completed his criminal sentence, ICE took custody of him and he has been in ICE detention since February 2, 2012. On appeal, the court addressed an issue of first impression: During their removal proceedings, are criminal aliens, like petitioner, detained under section 1226(c) entitled at any point to a bond hearing under the Due Process Clause? The court held that section 1226(c) contains an implicit temporal limitation against the unreasonably prolonged detention of criminal aliens without an individualized bond hearing. The court then established an approach for determining when the removal proceedings and the resulting section 1226(c) mandatory detention of a criminal alien become unreasonably protracted, triggering the need for a bond hearing. Joining the First, Third, and Sixth Circuits, the court adopted the case-by-case approach in determining whether a detention of a criminal alien has become unreasonable. Section 2241 courts must consult the record and balance the government’s interest in continued detention against the criminal alien’s liberty interest, always seeking to determine whether the alien’s liberty interest has begun to outweigh “any justification for using presumptions to detain him without bond.” If the balance tips in the alien’s favor, the district court must grant the section 2241 habeas petition and order the government to afford the criminal alien an individualized bond inquiry. When detained criminal aliens become entitled to a bond hearing, the agency shall conduct a bond inquiry under the procedures outlined in 8 C.F.R. 1236.1(c)(8) and (d). Finally, applying the court's holdings in petitioner's case, the court concluded that he must receive an immediate bond hearing as habeas relief. Accordingly, the court vacated and remanded. View "Sopo v. U.S. Attorney General" on Justia Law

Gourzong, a native of Jamaica, was admitted to the U.S. as a lawful permanent resident in 1983. In 1993, having joined the U.S. military, he was convicted by a special court-martial at Camp Pendelton of willfully disobeying a lawful order, 10 U.S.C. 890(2), and “commit[ing] an act of sexual intercourse with a female not his wife who has not attained the age of sixteen years,” 10 U.S.C. 920. Gourzong was represented by counsel and pleaded guilty. He received a sentence of six months confinement, loss of pay, and bad-conduct discharge. The convening authority suspended part of the confinement and withheld executing the bad-conduct discharge until after appellate review procedures, 10 U.S.C. 871(c). An IJ found Gourzong removable, 8 U.S.C. 1227(a)(2)(A)(iii), having been convicted of an aggravated felony. The BIA affirmed, rejecting his argument that convictions by special courts-martial categorically fall outside the definition in 8 U.S.C. 1101(a)(48)(A): “‘conviction’ means, with respect to an alien, a formal judgment of guilt of the alien entered by a court.” Although it is possible that a special court-martial can convene without a legally trained judge presiding, their convictions generally qualify as convictions under the Act. The Third Circuit agreed and, therefore, concluded that it lacked jurisdiction to consider Gourzong’s appeal. View "Gourzong v. Att'y Gen. of the United States" on Justia Law

Petitioner, a citizen of Jamaica and a lawful permanent resident of the United States, petitioned for review of the BIA's ruling that she is deportable because she pleaded guilty to “theft by taking” in violation of Georgia Code 16-8-2. Petitioner argued that this crime is not “a theft offense” as that term is used in the Immigration and Nationality Act’s (INA), 8 U.S.C. 1101(a)(43)(M)(i), list of grounds for deportation. The BIA initially held that Georgia “theft by taking” doesn’t require property to be taken “without consent,” as is required for generic theft, and ruled that petitioner's violation was not "a theft offense. After this initial ruling, a BIA official granted a motion to reconsider and then ruled the second time around that the crime is generic theft. The court granted the petition and concluded that the BIA determined years ago in a published opinion that theft based on taking property through fraudulently obtained consent is not “without consent.” View "Vassell v. U.S. Attorney General" on Justia Law

Pursuant to a negotiated plea agreement Defendant pleaded guilty to misdemeanor hit-and-run and driving while intoxicated. The United States Department of Homeland Security subsequently notified Defendant that his temporary protected status would be revoked as a result of his criminal convictions. Defendant sought habeas corpus relief, alleging that his prior counsel had given him erroneous advice about the effect of his plea agreement on his immigration status and that, had he been given accurate information, he would have gone to trial. After an evidentiary hearing, the habeas court ruled in favor of Defendant and granted the writ. The Director of the Virginia Department of Corrections appealed, arguing that the habeas court erred in holding that Defendant satisfied the prejudice prong of Strickland v. Washington. The Supreme Court affirmed, holding that the judgment of the habeas court was not plainly wrong or without evidence to support it. View "Clarke v. Galdamez" on Justia Law

Lee, now 47, moved to the U.S. from South Korea with his family in 1982 and has lived here legally ever since. After completing high school, he became a successful Memphis restaurateur. He also became a small-time drug dealer, and, in 2009, following a sting operation, he was charged with possession of ecstasy with intent to distribute, 21 U.S.C. 841(a)(1). The case against him was very strong. Lee’s attorney advised him to plead guilty in exchange for a lighter sentence. Lee, unlike his parents, never became an American citizen. His lawyer incorrectly assured him that he would not be subject to deportation. Possession of ecstasy with intent to distribute is an “aggravated felony,” rendering Lee deportable, 8 U.S.C. 1101(a)(43)(B), 1227(a)(2)(A)(iii). Lee moved to vacate his conviction and sentence under 28 U.S.C. 2255, contending that he received ineffective assistance of counsel. Applying the Strickland v. Washington test, the Sixth Circuit affirmed denial of relief. A claimant’s ties to the U.S. should be taken into account in evaluating, alongside the legal merits, whether counsel’s bad advice caused prejudice. Lee had no bona fide defense, not even a weak one, so despite his very strong ties to the U.S., he cannot show prejudice. View "Lee v. United States" on Justia Law

The district court granted defendant's motion to dismiss an indictment charging him with illegal reentry by a deported alien in violation of 8 U.S.C. 1326(a), (b)(2), concluding that the underlying removal order was invalid because DHS failed to explain to defendant in his native language either the removal charges against him or his right to contest the charges or obtain legal representation. The court agreed with the government that, even assuming the administrative removal proceedings were procedurally defective, defendant failed to establish prejudice. In this case, the government contends that even if DHS had provided defendant a Spanish language translation of the removal charges and his right to contest them, it would not have made a difference - he still would have been removed to Mexico. The court concluded that defendant failed to establish that his order of removal was “fundamentally unfair” under section 1326(d). Accordingly, the court reversed and remanded. View "United States v. Lopez-Collazo" on Justia Law

Any alien convicted of an “aggravated felony” after entering the U.S. is deportable, ineligible for several forms of discretionary relief, and subject to expedited removal, 8 U.S.C. 1227(a)(2)(A)(iii), (3). An “aggravated felony” is defined as any of numerous offenses listed in Section 1101(a)(43), each of which is typically identified either as an offense “described in” a specific federal statute or by a generic label (e.g., murder); the penultimate sentence states that each enumerated crime is an aggravated felony irrespective of whether it violates federal, state, or foreign law. Luna, a lawful permanent resident, pleaded guilty in New York to attempted third-degree arson. An Immigration Judge determined that Luna’s arson conviction was for an “aggravated felony” and that Luna was ineligible for discretionary relief. The Board of Immigration Appeals affirmed. The Second Circuit denied review. The Supreme Court affirmed. A state offense counts as a Section 1101(a)(43) “aggravated felony” when it has every element of a listed federal crime except one requiring a connection to interstate or foreign commerce.; state crimes do not need a “jurisdictional hook.” Congress meant the term “aggravated felony” to capture serious crimes regardless of whether they are made illegal by the federal government, a state, or a foreign country. It is implausible that Congress viewed the presence of an interstate commerce element as separating serious from nonserious conduct. View "Luna Torres v. Lynch" on Justia Law

Guzman-Rivadeneira came to the U.S. from Ecuador. In 1993 he was convicted in California of possession of counterfeit prescription blanks. After returning to Ecuador, he returned to the U.S. and became a lawful permanent resident because his mother is a U.S. citizen. On his application, he falsely responded that he had never been arrested or convicted of a crime. In 2012, Guzman-Rivadeneira pled guilty to a controlled substance misdemeanor. Guzman-Rivadeneira returned from another trip abroad in 2014 and was charged as removable for: conviction of a crime involving moral turpitude (1993 conviction), 8 U.S.C. 1182(a)(2)(A)(i)(I); conviction of a controlled substance offense; procurement of a visa by fraud; and lack of a valid entry document. He argued that a 1997 California court order reducing the 1993 conviction to a misdemeanor should be given retroactive effect; that he was eligible for a discretionary waiver of removability for his visa fraud, and that as a legal permanent resident he would be eligible for cancellation of other grounds of removal. The BIA upheld the IJ’s denial of relief. The Seventh Circuit declined a petition based on the “moral turpitude” issue. Guzman-Rivadeneira’s original lawyer conceded that the 1993 conviction involved moral turpitude, and in appealing to the BIA, his new lawyer did not seek relief from that concession, not did she take the steps needed to claim ineffective assistance of counsel. View "Guzman-Rivadeneira v. Lynch" on Justia Law

Dominguez-Pulido unlawfully entered the U.S with his parents around 1993. Approximately 15 years later, Dominguez-Pulido was convicted of burglary, a felony offense under Illinois law. An Immigration Judge concluded that he was removable as an alien present without admission and denied various forms of relief from removal. The Board of Immigration Appeals dismissed his appeal. The Seventh Circuit upheld the denials, citing 8 U.S.C. 1252(a)(2)(C), which limits judicial review of final orders for removal that involve a conviction for a crime involving moral turpitude. The court rejected claims that the “moral turpitude” clause was void for vagueness; that Dominguez-Pulido’s fear of persecution bears a nexus to his membership in a particular social group— individuals deported from the U.S. who have or who are perceived to have money, and who have family members in the U.S. who could pay ransom; and that his removal would violate the Eighth Amendment. View "Dominguez-Pulido v. Lynch" on Justia Law