Justia Immigration Law Opinion Summaries

In 2002, Appellant, a Mexican native and a lawful permanent resident of the United States, pleaded guilty to felony theft. Eight years later, deportation proceedings were initiated against Appellant, in part due to Appellant’s 2002 felony theft conviction. Appellant filed a petition asking the district court to vacate his 2002 plea under the Utah Post-Conviction Remedies Act (PCRA) or, alternatively, through a writ of coram nobis. In his petition, Appellant claimed that his counsel was ineffective during the plea process by failing to disclose the possible immigration consequences related to his plea. The district court dismissed Appellant’s petition and writ of coram nobis, concluding (1) Appellant’s petition was time barred by the PCRA, and (2) Appellant was not deprived of effective assistance of counsel, as Appellant knew or should have known that there were potential immigration consequences related to his plea. The Supreme Court affirmed, holding (1) Appellant failed to preserve his argument that his attorney affirmatively misrepresented the immigration consequences of his plea; and (2) the district court did not err in denying Appellant’s petition for a writ of coram nobis, as Appellant had a remedy available to him through the PCRA. View "Oseguera v. State" on Justia Law

Defendant, a native and citizen of Mexico, appealed his conviction for attempting to enter the United States without consent after having been previously removed. In regards to defendant's collateral attack of the underlying removal order, the court held that defendant was not denied due process because the IJ's determination that he had been convicted of an aggravated felony was not contrary to the court's precedent at the time the removal order was issued and was the product of a reasonable reading of the statute; because defendant had been convicted of an aggravated felony, he was statutorily ineligible for voluntary departure, and the IJ was under no obligation to inform him of the existence of such relief for the proceedings to comport with due process; even if the IJ should have informed defendant of his apparent eligibility for voluntary departure, the failure to do so did not render the removal proceedings "fundamentally unfair" under 8 U.S.C. 1326(d)(3) because he was no prejudiced by the alleged error; and, therefore, the underlying removal order was a valid predicate to a conviction for attempted illegal reentry. The court also held that ample record evidence corroborated defendant's confession to the gravamen of the offense and establishes the trustworthiness of his statement to the DHS officer. Accordingly, the conviction based on defendant's videotaped confession does not run afoul of the corpus delicti doctrine. The court affirmed the judgment of the district court.View "United States v. Valdez-Novoa" on Justia Law

Baptist is a native of Belize who entered the U.S.as a lawful permanent resident in 1988.In 1992, Baptist pleaded guilty to possession of a controlled substance and was sentenced to probation. In 1995, Baptist was convicted of possession of a controlled substance and was again sentenced to probation. In 1996, Baptist was again convicted of possession of a controlled substance and was sentenced to five years’ imprisonment. At the time, the offense was considered an aggravated felony and he was placed in removal proceedings under 8 U.S.C. 1227(a)(2)(A)(iii) and 8 U.S.C. 1227(a)(2)(B)(i). Baptist signed a stipulated removal order in 1998. Afterwards, he illegally reentered the U.S. several times; each time he was discovered, he was again removed to Belize. In 2005, Baptist illegally entered once more and avoided detection until he was arrested in 2010. Charged with being illegally present in the U.S. after having been previously removed, 8 U.S.C. 1326(a). Baptist moved to dismiss the indictment, collaterally attacking his 1998 removal as violating his due process rights. The district court denied Baptist’s motion. The Seventh Circuit affirmed, stating that Baptist failed to establish that his removal proceedings were “fundamentally unfair.”View "United States v. Baptist" on Justia Law

Petitioner, a native of Germany, lawfully entered the United States in 1959. In 2004, Petitioner pleaded guilty to possession of child pornography under Connecticut law. The Board of Immigration Appeals (BIA) later concluded that Petitioner was removable for having been convicted of an aggravated felony of child pornography under 8 U.S.C. 1101(a)(43)(I) and 1227(a)(2)(A)(iii). Petitioner petitioned for review, contending the government did not meet its burden of showing that the state conviction fell under the federal statute because the relevant state law of conviction encompassed other conduct. The First Circuit denied Petitioner’s petition for review, holding that Petitioner’s admission in the state proceeding to having images of children “having sex” was sufficient to bring him within the federal statute’s definition of an aggravated felony of child pornography. View "Kaufmann v. Holder" on Justia Law

In 1997, Martin Ramirez was arrested and charged with possession of up to one ounce of marijuana and two other misdemeanors. He appeared in metropolitan court for a custody arraignment two days later and pleaded guilty to all three charges on the advice of his public defender. In 2009, Ramirez learned that his guilty pleas in 1997 rendered him "inadmissable to the United States." Ramirez filed a petition for writ of error coram nobis in the district court, seeking to vacate his metropolitan court guilty pleas on the basis of ineffective assistance of counsel. In "New Mexico v. Paredez," (101 P.3d 799), the New Mexico Supreme Court held that a criminal defense attorney who represents a noncitizen client "must advise that client of the specific immigration consequences of pleading guilty" to pending charges. An attorney’s failure to do so will be ineffective assistance of counsel if the client is prejudiced. The question in this case was whether the holding in Paredez applied retroactively and, if it did, whether Ramirez has a claim for ineffective assistance of counsel that could justify withdrawal of his pleas. The Court held that Paredez applied retroactively to 1990, the year that the Court began to prohibit courts from accepting a guilty plea from a defendant without: (1) ascertaining that the defendant understood that a conviction may have an effect on the defendant’s immigration status; (2) obtaining an affidavit from the defendant that the judge personally advised the defendant of the possible effect of a conviction on the defendant’s immigration status; and (3) obtaining a certification from the defendant’s attorney that the attorney had conferred with the defendant and explained in detail the contents of the affidavit signed by the defendant. These requirements were not new in 1997 at the time Ramirez pleaded guilty, and they were "designed to ensure a guilty plea is made knowingly and voluntarily." View "Ramirez v. New Mexico" on Justia Law

Defendant, a noncitizen of the United States, pleaded guilty to possession with intent to distribute cocaine and received a sentence of probation. Defendant was subsequently arrested for driving without a license and taken into custody by immigration authorities. Contending that his defense counsel’s advice was constitutionally deficient, Defendant filed a motion for a new trial seeking to withdraw his guilty plea. A superior court allowed the motion, concluding that Defendant’s counsel gave Defendant constitutionally deficient advice when he told Defendant he would be “eligible for deportation” if he pleaded guilty to the drug possession charges. The Supreme Judicial Court affirmed, holding that because the conviction of a noncitizen with intent to distribute cocaine makes deportation or removal from the United States presumptively mandatory, counsel’s advice was constitutionally deficient in that it did not convey what is clearly stated in federal law.View "Commonwealth v. DeJesus" on Justia Law

Petitioner, a Mexican citizen, pleaded guilty to patronizing prostitution and was granted judicial diversion. Petitioner successfully completed his diversion, and his criminal record was subsequently expunged. Approximately three years after the entry of his plea, Petitioner filed a petition for post-conviction relief alleging that he was entitled to relief under Padilla v. Kentucky because his trial counsel failed to inform him of the immigration consequences of his plea. The trial court dismissed the petition on the grounds that it was time-barred. The court of criminal appeals affirmed the trial court’s summary dismissal of the petition, concluding that a petitioner whose record has been expunged may not obtain post-conviction relief. The Supreme Court affirmed, holding that the Post-Conviction Procedure Act may not be used to collaterally attack a guilty plea that has been expunged after successful completion of judicial diversion. View "Rodriguez v. State" on Justia Law

A removable alien who has lived in the U.S. for seven years (including five as a permanent resident) is entitled to seek cancellation of removal unless he has committed an “aggravated felony.” 8 U.S.C. 1229b(a)(3). Velasco, a citizen of Mexico who was admitted for permanent residence, became removable after multiple criminal convictions. An immigration judge concluded that one of these convictions was for “sexual abuse of a minor”, which 8 U.S.C.1101(a)(43)(A) classifies as an aggravated felony, and that Velasco was, therefore. ineligible for cancellation of removal. The BIA affirmed, citing the definition of “sexual abuse” in 18 U.S.C. 3509(a)(8) rather than the one in 18 U.S.C. 2243(a). The conviction at issue was under Cal. Penal Code 261.5(c), which makes it a crime to engage in sexual intercourse with a person under the age of 18, if the defendant is at least three years older. Velasco was 18 at the time; the girl was 15. Deferring to the BIA, the Seventh Circuit affirmed. View "Velasco-Giron v. Holder" on Justia Law

Defense counsel in this case advised petitioner that a guilty plea to a burglary charge "may" have had an impact on petitioner's immigration status. The consequences of the plea were clear: a conviction constituted an aggravated felony and would almost certainly lead to deportation proceedings under the Immigration and Nationality Act (INA). This case centered on the adequacy of an attorney’s immigration advice to a legal permanent resident who entered a guilty plea to a burglary charge. The habeas court denied petitioner's petition, finding that petitioner was advised "as accurately as possible regarding a negative impact on his immigration status, including, but not limited to, possible deportation." The court added: "[C]ounsel provided petitioner with consistent, accurate advice about the risk petitioner was facing. The advice and instruction provided to petitioner was neither 'mis-advice' nor insufficient or inadequate." Petitioner filed an application for a certificate of probable cause to appeal which the Supreme Court granted, posing the following question: "Did the habeas court properly analyze the claim presented?" The Supreme Court answered "no," reversed the habeas court, and remanded with directions. View "Encarnation v. Georgia" on Justia Law

Petitioner, a native and citizen of Mexico, sought review of the BIA's decision affirming the IJ's final order of removal against him. The court concluded that possession of marijuana for sale under the California Health & Safety Code (CHSC) section 11359 contemplates a sale - that is, distribution of marijuana in exchange for remuneration. Further, aiding and abetting liability under California law is no different from aiding and abetting liability under federal law. Therefore, the court held that petitioner's conviction for possession of marijuana for sale under section 11359 is categorically an aggravated felony, namely "illicit trafficking in a controlled substance." Accordingly, the court denied the petition for review. View "Roman-Suaste v. Holder" on Justia Law