Justia Immigration Law Opinion Summaries

Alvarez, a two-year-old citizen of Mexico, entered the U.S. without admission or parole. In 1989 he became a lawful permanent resident. Alvarez served in the U.S. Army, 1991-2004. Alvarez has only departed the United States as a member of the Army. In 2000 Alvarez had sexual contact with a female platoon member who was so intoxicated that she was unable to consent. He provided a signed denial to the Army Criminal Investigation Division. He eventually pleaded guilty to violations of the Uniform Code of Military Justice: 10 U.S.C. 907, for making false official statements; 10 U.S.C. 925, sodomy; and, 10 U.S.C. 934, for two specifications of violating the general article. The judge sentenced Alvarez to a bad conduct discharge, to be reduced to the grade of E-1, and to be confined for 18 months. The sentence did not allocate the confinement to the convictions. In 2012, DHS agents arrested Alvarez. An IJ found him removable under 8 U.S.C. 1227(a)(2)(A)(iii) and 1101(a)(43)(F), as an alien who has been convicted of an aggravated felony. The BIA affirmed. The Third Circuit remanded. The BIA committed legal error in concluding that Alvarez’s sodomy conviction was a crime “for which the term of imprisonment [was] at least one year,” 8 U.S.C. 1101(a)(43)(F). View "Chavez-Alvarez v. Att'y Gen., United States" on Justia Law

Jose Mendoza was indicted on one count of unlawfully entering the United States after having previously been deported. He pleaded guilty to that count. After finding that Mendoza had previously been deported in 2008 following a federal conviction for conspiracy to launder monetary instruments, the sentencing judge applied an eight-level enhancement pursuant to U.S.S.G. 2L1.2(b)(1)(C). Mendoza was sentenced within the advisory guidelines range to a sentence of forty-one months. He challenged this eight-level enhancement on appeal; the specific issue raised was whether the district court committed plain error when it found that Mendoza’s prior money laundering conviction was an aggravated felony. The parties did not dispute that Mendoza was convicted of conspiracy to commit money laundering. Mendoza contended, however, that the district court relied on the presentence report in order to prove that his prior conviction was an aggravated felony, in violation of "Shepard v. United States," (544 U.S. 13 (2005)). The Fifth Circuit affirmed: the evidence a court may consider under a specific circumstances inquiry is broader than the evidence that may be considered under a modified-categorical analysis inquiry. The district court did not err in examining the PSR in order to determine that Mendoza committed an aggravated felony. View "United States v. Mendoza" on Justia Law

Alvarez, a citizen of Mexico, entered the U.S. at a young age without inspection and later adjusted to lawful permanent resident status. He married a U.S. citizen, but is now divorced; he has sons who are citizens. In 2000, while serving in the U.S. Army, he was convicted by a General Court-Martial of giving false official statements (10 U.S.C. 907), sodomy (10 U.S.C. 925), and violating the general article (10 U.S.C. 934). He served 13 months and was released in 2002. ICE agents arrested him in 2012, charging him as removable under 8 U.S.C. 1227(a)(2)(A)(iii) for his conviction on an aggravated felony. He was ordered detained without bond under 8 U.S.C. 1226(c). The district court denied his petition for habeas corpus. The Third Circuit reversed with instructions that Alvarez must be afforded a prompt bond hearing. Beginning sometime after the six-month time-frame considered by the Supreme Court in Demore, the burdens to Alvarez’s liberties outweighed any justification for using presumptions to detain him without bond to further the goals of the statute. The statute’s goals would not have been, and will not be undermined by requiring the government to produce individualized evidence that Alvarez’s continued detention was or is necessary. View "Chavez-Alvarez v. Warden York County Prison" on Justia Law

Lugo, a citizen of Venezuela, came to the U.S. in 1996 on a nonimmigrant visa, and remained beyond the authorized period. In 2005, she was charged with concealing a felony involving her boyfriend, who sold heroin. On advice of counsel, who told her that she faced up to five years of incarceration, Lugo pled guilty under 18 U.S.C. 4. She was sentenced to time served. Lugo claims that her attorney never explained that a guilty plea could jeopardize her immigration status. In 2007, the Department of Homeland Security charged Lugo as removable. She applied for cancellation of removal based on hardship to her U.S. citizen child, and for relief under the Convention Against Torture. In 2011, an Immigration Judge found that Lugo was barred from cancellation of removal because of her conviction for misprision of felony was a “crime involving moral turpitude” that stops the clock on the 10-year “continuous physical presence” requirement for cancellation of removal under 8 U.S.C. 1229b(d)(1)(B). The BIA affirmed. The Second Circuit vacated and remanded: the rights of fair notice and effective assistance of counsel may provide a reason not to apply, retroactively, new agency rules that establish deportation as a consequence of certain crimes. View "Lugo v. Holder" on Justia Law

Petitioner was convicted of possession of narcotics with intent to sell. Petitioner later filed an amended petition for writ of habeas corpus, arguing that his trial counsel rendered ineffective assistance by failing to advise him, pursuant to Padilla v. Kentucky, that his plea of guilty and subsequent conviction would constituted an aggravated felony under federal law and result in his almost certain deportation and permanent removal from the United States. After a trial, the habeas court granted the amended petition, concluding that Padilla applied retroactively to Petitioner’s guilty plea and that Petitioner was misadvised and prejudiced under Strickland v. Washington. The Supreme Court reversed, holding (1) Padilla does not apply retroactively to Petitioner’s guilty plea under federal law; and (2) Petitioner cannot prevail on alternative grounds. View "Thiersaint v. Comm’r of Corr." on Justia Law

Ortiz‐Franco, a citizen of El Salvador, entered the U.S. illegally in 1987. Between 1992 and 1996, he was convicted of: criminal possession of a weapon in the third degree, a class D Armed Violent Felony under New York law; attempted petit larceny; and possession of a controlled substance. He conceded that he was removable as an alien present without being admitted or paroled and as an alien convicted of a controlled substance violation and a crime of moral turpitude. He argued that, if he is returned to El Salvador, members a street gang would torture and kill him because of information he provided to federal prosecutors. He applied for asylum, withholding of removal, and deferral of removal under the Convention Against Torture. The IJ ruled that his witness tampering conviction rendered Ortiz‐Franco ineligible for asylum and withholding of removal, and that he did not demonstrate entitlement to CAT relief because he did not establish that it was more likely than not that he would be subject to torture in which the Salvadoran government would acquiesce. The BIA affirmed. The Second Circuit dismissed an appeal for lack of jurisdiction under 8 U.S.C. 1252(a)(2)(C) because Ortiz-Franco raised no colorable constitutional claims. View "Ortiz-Franco v. Holder" on Justia Law

Elmer Gomez-Alvarez pled guilty to illegal reentry without a written plea agreement. His pre-sentence report ("PSR"), which relied on the 2013 version of the Sentencing Guidelines Manual, recommended a 16-level sentencing enhancement for a prior "drug trafficking offense" conviction. The PSR listed "Jorge Ortiz" as one of several aliases used by Gomez-Alvarez and indicated that Gomez-Alvarez had been convicted of the offense in California "using the name Jorge Ortiz." Attached to the PSR was a California felony complaint. Also attached to the PSR was an abstract of judgment indicating that Jorge Ortiz pled guilty to "possession for sale of [a] controlled substance" but did not specify the substance. Application of the sentencing enhancement based on the California offense resulted in a total offense level of 22 and a criminal history category of V, which produced a guideline range for imprisonment of 77 to 96 months. Gomez-Alvarez raised several written objections to the PSR. Relevant to this appeal, he objected to the 16-level enhancement on grounds that the documents relied upon by the government failed to establish the fact of a qualifying predicate conviction. He argued that the language of the California statue was overbroad, and that although "the charging instrument [the Complaint] allege[d] . . . possession and purchase of heroin," the Abstract did not specify a controlled substance. Finally, Gomez-Alvarez raised the following one-sentence written objection: "Further, it has not been established with credible documentation that the person purportedly convicted was, in fact, Mr. Gomez-Alvarez." Gomez-Alvarez then argued in favor of a below-guideline-range sentence on grounds that his criminal history was over-represented. The district court agreed and concluded that criminal history category IV more accurately represented Gomez-Alvarez's criminal history. As a result, Gomez-Alvarez's The district court sentenced Gomez-Alvarez to 57 months of imprisonment and did not impose a term of supervised release. Gomez-Alvarez timely appealed. After careful consideration, the Fifth Circuit concluded there was no clear error in the sentencing court's judgment, and that the lower court's findings were plausible in light of the record as a whole. As such, the Fifth Circuit affirmed Gomez-Alvarez's sentence. View "United States v. Gomez-Alvarez" on Justia Law

After a jury trial, Defendant, a member of a prominent political family allegedly involved in the Rwandan genocide, was convicted of two counts of procuring citizenship illegally by making false statements to the government. Specifically, the jury found that Defendant misrepresented her political affiliations and her participation in the genocide. The First Circuit affirmed Defendant’s convictions and sentence, holding (1) the evidence was sufficient to support the convictions; (2) any error in the court’s evidentiary rulings was harmless given the vast array of evidence against Defendant; (3) the trial court did not err in denying Defendant’s motion for a mistrial based on prosecutorial misconduct; and (4) Defendant’s 120-month sentence was reasonable. View "United States v. Munyenyezi" on Justia Law

Defendant, a member of a prominent political family allegedly involved in the Rwandan genocide, was convicted of perjury and obstruction of justice based on false statements she made in connection with her application for asylum in the United States and subsequent removal proceedings. The false statements concerned Defendant’s truthfulness on previous immigration documents, in which she misrepresented her political affiliations and government employment, and her statement that there was no roadblock outside Hotel Ihuriro during her stay there at the start of the genocide. The First Circuit affirmed the convictions, holding (1) the district court did not err in denying Defendant’s motion to dismiss on grounds of collateral estoppel, as collateral estoppel did not apply on the facts of this case; (2) the government succeeded in establishing that Defendant’s false statements were material to the immigration judge’s decision; and (3) the district court did not abuse its discretion in admitting the testimony of a professor of political science and an expert on the Rwandan genocide as to the existence of a roadblock in front of Hotel Ihuriro before Defendant’s departure. View "United States v. Kantengwa" on Justia Law

Defendant, a Mexican citizen, entered the U.S. in 1992, and, in 1993, married Cruz, a U.S. citizen. Defendant and Cruz have two children, but are divorced. Defendant has been removed three times. He pled guilty to domestic violence on three different occasions. Under Michigan law, his third offense was a felony. His 2001 application to adjust his status on the basis of his marriage was denied. Before his last removal in 2007, Defendant was informed that he was barred from entering the U.S. for 20 years. In 2013, Grand Rapids immigration authorities learned of Defendant’s unlawful presence from a tip line. Defendant was taken into custody and charged under 8 U.S.C. 1326(a) and (b)(1). He pled guilty. The district court applied a four-level enhancement under USSG 2L1.2(b)(1)(D) for a prior felony conviction; determined that an upward variance was warranted; and imposed a custodial sentence of 18 months, citing Defendant’s record of domestic violence and illegal reentries. Defense counsel stated that Defendant had no legal objections to the sentence. Defendant appealed, but due to delays resulting from his attorney’s withdrawal, he completed his term of imprisonment and was removed to Mexico in September, 2014. The Sixth Circuit affirmed the sentence. View "United States v. Solano-Rosales" on Justia Law