Justia Immigration Law Opinion Summaries

Ortiz, a native of Mexico, became a lawfully-admitted permanent resident of the U.S. in 2002. In 2006, Ortiz pled guilty to obstruction of legal process—a crime committed when he was 18 years old. Ortiz was sentenced to 1 year in a workhouse—with a 2-year stay on 320 days of the sentence—and a $50.00 fine. More than seven years later, DHS charged Ortiz as removable under 8 U.S.C. 1227(a)(2)(A)(iii) for committing an “aggravated felony” and under 8 U.S.C. 1227(a)(2)(A)(i) for committing a crime involving “moral turpitude.” The IJ found Ortiz’s conviction was an “aggravated felony” because it was a “crime of violence.” The BIA upheld the IJ’s determination. The Eighth Circuit vacated. Minnesota precedent plainly shows the words “force or violence,” in the statute under which Ortiz was convicted, encompass a broader scope of conduct than the “physical force” required to be a categorical “crime of violence” under 18 U.S.C. 16. View "Ortiz v. Lynch" on Justia Law

Figueroa-Alvarez, a citizen of Mexico, pleaded guilty to illegally reentering the U.S. following removal, 8 U.S.C. 1326(a), a violation punishable by “not more than 2 years” imprisonment. Section 1326(b) authorizes imprisonment “not more than 10 years” if the prior removal “was subsequent to a conviction for commission of . . . a felony,” and “not more than 20 years” if removal was subsequent “to a conviction for commission of an aggravated felony.” Figueroa-Alvarez admitted a pre-removal Iowa conviction for committing third-degree attempted burglary, an “aggravated misdemeanor” punishable by up to two years in prison. He did not admit he committed a “felony.” The court determined that his advisory guidelines sentencing range was 46-57 months in prison, applying an increase in U.S.S.G. 2L1.2(b)(1) for removal following a “felony” conviction because the Guidelines define “felony” as “any federal, state, or local offense punishable by imprisonment for a term exceeding one year.” The court granted a downward departure and variance, and sentenced Figueroa-Alvarez to 36 months in prison. The Eighth Circuit affirmed. Though Iowa classified third-degree attempted burglary as an aggravated misdemeanor, it was punishable by up to two years in prison, and was a felony, as that term is used in 8 U.S.C. 1326(b). View "United States v. Figueroa-Alvarez" on Justia Law

Fazio, a permanent resident alien, was charged with conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine. Fazio pleaded guilty to the lesser-included offense of conspiring to distribute more than 200 grams but fewer than 300 grams of cocaine, waiving the right to take a direct appeal from his conviction or sentence, except if the government appealed from the sentence or the sentence exceeded the applicable statutory limits or unreasonably exceeded the Sentencing Guidelines range. Fazio waived the right to move to vacate sentence (28 U.S.C. 2255) and the right to file any other collateral proceeding attacking his conviction or sentence. The plea agreement stated: Fazio recognizes that pleading guilty may have consequences with respect to his immigration status … no one, including his own attorney or the district court, can predict to a certainty the effect of his conviction on his immigration status. The court reviewed the waiver in detail at the hearing. The Third Circuit affirmed denial of Fazio’s subsequent 28 U.S.C. 2255 motion to vacate his sentence, in which he argued that counsel was ineffective in failing to warn Fazio properly of the immigration consequences of his plea, as required by the Supreme Court in Padilla v. Kentucky, 2010. View "United States v. Fazio" on Justia Law

In 2003, Fraser, a citizen of Canada, married a U.S. citizen. In 2006, his wife filed an I-130 Petition to adjust Fraser’s status based on their marriage; Fraser filed an I-485 Application to Register Permanent Residence or Adjust Status. The petition and application were granted in 2007. Weeks later, the Department of Homeland Security determined that Fraser’s application had been approved in error. DHS believed that in 1991, Fraser had been convicted in Canada of possession of cocaine for the purpose of trafficking. Fraser appeared before an Immigration Judge. The government provided a Trial Disposition from Canada dated March, 1991, plus an Information, dated April, 1990, which identified the offense charged as possession of cocaine for the purpose of trafficking. The Trial Disposition did not identify the offense to which Fraser pleaded guilty and for which he was sentenced. The IJ concluded that the documentation presented, in combination, proved by clear and convincing evidence that Fraser had been convicted in Canada of possession of cocaine for the purpose of trafficking and that Fraser was inadmissible at the time of his adjustment of status, 8 U.S.C. 1182(a)(2)(A)(i)(II) and deportable under 8 U.S.C. 1227(a)(1)(A). The BIA and Eighth Circuit dismissed Fraser’s appeals. View "Fraser v. Lynch" on Justia Law

Christian, age 16, was arrested for selling cocaine base. A wardship petition was filed. Immigration officials were notified. An Immigration Detainer was faxed to the juvenile hall from the Department of Homeland Security (DHS) stating that Christian had a prior felony conviction or had been charged with a felony offense, that he had illegally re-entered after a previous removal, and there was an order of deportation. The detainer requested that juvenile hall maintain custody of the minor to allow DHS to take custody of him, with an attached “Warrant of Removal/Deportation.” Christian admitted that he had possessed a controlled substance as alleged. Christian’s counsel indicated that she was satisfied he understood the immigration consequences of his admission. Christian stated he had traveled from Honduras to the U.S. 10 months earlier without his mother’s permission. The dispositional order required him to reside with his mother in Honduras. The court of appeal reversed. The court may have proceeded under the erroneous premise that it was compelled to transfer custody to federal authorities. The court expressly determined that it was not in Christian’s best interests to return to Honduras because he had been abandoned by his biological father who has never provided assistance or support and that his mother is unable to provide support. The conflicting findings cannot be reconciled View "In re Christian H." on Justia Law

In 1997, Kosmes pleaded guilty to manslaughter in the U.S. territory of Guam. He was sentenced to 10 years' imprisonment. After his release, Kosmes was deported to Micronesia. In 2014, Homeland Security discovered Kosmes in Arkansas. He pled guilty to illegally reentering the U.S. after deportation, 8 U.S.C. 1326(a). Kosmes filed objections to the presentence investigation report (PSR), arguing that the Eighth Circuit "has left open the question of what mental state attaches to generic manslaughter for purposes of determining whether it should qualify as a crime of violence under U.S.S.G. 2L1.2(b)(1)(A)(ii)." According to Kosmes, because his manslaughter conviction i required only a reckless mental state, rather than an intentional one, the PSR's 16-level enhancement was improper. After the district court noted the "precise issue" has not been resolved by the Eighth Circuit, it held that the manslaughter conviction with a reckless mental state qualified as a crime of violence, calculated an advisory guidelines range of 46 to 57 months, and imposed a sentence of 30 months' imprisonment. The Eighth Circuit affirmed. View "United States v. Kosmes" on Justia Law

Defendant appealed his conviction and sentence for illegal reentry after deportation or removal. The court concluded that the new definition in section 321(a) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 8 U.S.C. 1101(a)(43)(G), made theft offenses aggravated felonies so long as the defendant was sentenced to one year or more in prison, rather than five years or more; that new definition applies to convictions “before, on, or after the date of enactment;” in this case, the IJ correctly decided that defendant's robbery conviction was an aggravated felony because the term of imprisonment for his offense exceeded one year; the IJ correctly decided that defendant’s robbery conviction was an aggravated felony, and did not err when she failed to inform him that he might be entitled to relief under 8 U.S.C. 1182(h); but, the IJ erred when she failed to tell defendant of the possibility that 8 U.S.C. 1182(c) relief was available and that violated his due process rights. Accordingly, the court vacated the conviction and remanded for further proceedings. View "United States v. Guzman-Ibarez" on Justia Law

Defendant conditionally plead guilty to being a previously removed alien illegally found in the United States in violation of 8 U.S.C. 1326(a). On appeal, defendant contended that the district court erred in concluding that he failed to demonstrate that his expedited removal in 2012 was fundamentally unfair; and in refusing to order the government to produce statistics about the numbers of individuals with a background similar to his who were granted a form of discretionary relief. The court concluded that defendant failed to demonstrate that his 2012 expedited removal was fundamentally unfair where, even assuming the existence of a due process violation, defendant has failed to carry his burden of demonstrating prejudice flowing from such violation. Defendant failed to demonstrate that absent such violation, relief in the form of withdrawal of application of admission was plausible. Further, the statistics defendant sought are not presently available and can not be accurately compiled even with the expenditure of significant resources. Accordingly, the court affirmed the judgment. View "United States v. Garcia-Gonzalez" on Justia Law

DeBartolo, 48 years old, immigrated to the U.S. at the age of one, but never applied for U.S. citizenship. He is married to a citizen and his children are citizens. He has no family in Italy and does not speak Italian. In 1996 he was sentenced in an Indiana court to eight years in prison for dealing in cocaine. In 2011 he was indicted in federal court for possessing with intent to distribute more than 100 marijuana plants and manufacturing more than 100 plants, 21 U.S.C. 841(a)(1). DeBartolo powered the lighting used to grow the plants with electricity that he stole from the electric company. . Because he helped the government to apprehend other drug dealers and pled guilty to manufacturing, the government moved for, and the court imposed, a below-minimum sentence of 25 months. There was no mention of deportation, but his conviction made him deportable and precluded cancellation of removal, 8 U.S.C. 1101(a)(43), 1227(a)(2)(A)(iii), (B)(i), 1229b(a)(3). After he completed his sentence he was removed to Italy. While his removal was pending he sought habeas relief, claiming ineffective assistance of counsel in his criminal case, because his lawyer had failed to warn him that if he were convicted he could be deported. The judge denied the petition. The Seventh Circuit reversed, stating that the government should consider whether having served the recommended prison sentence, having then languished in INS custody, and being deported, DeBartolo has been punished sufficiently. View "Debartolo v. United States" on Justia Law

Petitioner was convicted of a felony requiring his removal. The Board of Immigration Appeals (BIA) affirmed an order that Petitioner be removed. Petitioner petitioned for review, arguing that because Padilla v. Kentucky described deportation as a “penalty,” his removal violated the Eighth Amendment’s prohibition on cruel and unusual punishment or related constitutional protections unless a court conducted an individual assessment to determine whether his order of removal was a proportional punishment relative to his underlying criminal conviction. The First Circuit denied Petitioner’s petition for review, holding that Padilla has not signaled a break from long-settled law that removal operates simply as “a refusal by the government to harbor persons whom it does not want,” not as a punishment within the meaning of the Constitution intended to acutely sanction a noncitizen for his underlying criminal conviction. View "Hinds v. Holder" on Justia Law