Justia Immigration Law Opinion Summaries

Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's decision that his conviction under California Penal Code section 459 was an aggravated felony that rendered him ineligible for cancellation of removal. The BIA applied the modified categorical approach to determine that petitioner's conviction under section 459 was an attempted theft offense, which is an aggravated felony under 8 U.S.C. 1101(a)(43)(U) and 8 U.S.C. 1101(a)(43)(G). The court's precedent held that section 459 punishes a broader range of conduct than the generic crime for an attempted theft offense because section 459 may be violated by an attempt to commit a crime other than theft. In light of Descamps v. United States, the court could not apply the categorical approach because the statute was indivisible. The court determined whether a disjunctively worded statute is divisible or not by looking to whether the state treats the parts of the statute on opposite sides of the "or" as alternative elements or alternative means. Here, California law is clear: the jury need not be unanimous regarding the particular offense the defendant intended to commit in order to convict under section 459. Therefore, the court held that petitioner's conviction under section 459 cannot qualify as an attempted theft offense under section 1101(a)(43)(U) and does not render petitioner ineligible for cancellation of removal on that basis. The court granted the petition for review, reversed the decision of the BIA, and remanded for further proceedings. View "Rendon v. Holder, Jr." on Justia Law

Petitioner, a native and citizen of the Dominican Republic, was convicted of attempted arson in the third degree in violation of New York Penal Law sections 110 and 150.10. Petitioner claimed that his conviction is not an aggravated felony rendering him statutorily ineligible for cancellation of removal. Applying Chevron deference, the court deferred to the BIA's reasonable determination that a state "offense described in" 18 U.S.C. 844(i) need not contain a federal jurisdictional element. Accordingly, the court denied the petition. View "Torres v. Holder" on Justia Law

Petitioner, a native of the Congo, appealed the BIA's dismissal of her appeal from the IJ's denial of her application for withholding of removal or protection under the Convention Against Torture (CAT). At issue was whether an alien must contest her status as an aggravated felon in an expedited removal proceeding before raising that argument before a federal court of appeals. The court concluded that it lacked jurisdiction to consider petitioner's argument that her conviction for simple battery does not qualify as an aggravated felony because she failed to contest the only ground for her removal before the department; the court explained that it will not review alleged errors by the immigration judge that the BIA did not expressly adopt; the REAL ID Act, Pub.L. 109-13, 119 Stat. 302, barred the court from considering issues of fact raised by petitioner, a criminal alien; the BIA committed no legal error when it rejected petitioner's application for withholding of removal; and the BIA committed no legal error when it rejected petitioner's application for protection under the CAT. Accordingly, the court denied the petition for review. View "Malu v. U.S. Attorney General" on Justia Law

Syblis, a citizen of Jamaica, entered the U.S. in 2000 as a non-immigrant visitor. He remained beyond three months without seeking additional authorization. In 2004 he was charged with possession of marijuana. The charges were later amended and he was convicted of possession of drug paraphernalia. In 2008, in an unrelated incident, Syblis was convicted of possession of marijuana. In 2010, the Department of Homeland Security initiated removal proceedings against Syblis, under 8 U.S.C. 1227(a)(1)(B) for overstaying his visa authorization, and under 8 U.S.C. 1227(a)(2)(B)(i) for his paraphernalia and marijuana convictions. He contested his removability on the grounds that he was convicted of an offense relating to a controlled substance and renewed a previous application for an adjustment of status and requested a waiver of criminal inadmissibility grounds. The IJ concluded that both of Syblis's convictions related to "controlled substances" and found him ineligible for a waiver of criminal inadmissibility under 8 U.S.C. 1182(h). The BIA upheld the decision. The Third Circuit affirmed, holding that Syblis failed to meet his statutorily prescribed burden of demonstrating eligibility for relief from removal. View "Syblis v. Att'y Gen of the U.S/" on Justia Law

Defendant appealed the district court's revocation of his supervised release, arguing that his supervised release expired prior to the date the United States Probation Office petitioned the district court for revocation - thereby divesting the district court of jurisdiction over his supervised release. The court concluded that defendant's term of pretrial detention did not toll his supervised release where neither period of detention was in connection with a conviction and the immigration detainer imposed during defendant's Texas pretrial detention was an administrative hold that did not amount to imprisonment in connection with a conviction for purposes of 18 U.S.C. 3624(e). Therefore, the court held that the district court did not have jurisdiction to revoke defendant's supervised release. The court vacated the revocation and the sentence imposed. View "United States v. Juarez-Velasquez" on Justia Law

In separate cases, several defendants were arrested and detained. The initial appearance documents indicated that the defendants were in the country illegally or had an Immigration and Customers Enforcement (ICE) detainer filed against them. Appellant, Big Louie Bail Bonds, reviewed the initial appearance documents and posted bail bonds for the defendants. After the bail bonds were posted, the defendants were taken into federal custody by the ICE and deported. Because the defendants failed to appear for trial, the trial court forfeited the bail bonds. The circuit court denied Appellant's amended petitions to strike the forfeitures, determining that the posted bail bonds were properly forfeited because Appellant knew, or should have known, that the defendants were subject to deportation when it posted the bonds. At issue on appeal was Maryland Rule 2-417(i), which provides that the decision to strike a forfeiture is conditioned upon a showing by the defendant of "reasonable grounds" for the defendant's nonappearance. The Court of Appeals reversed, holding that the act of deportation constitutes reasonable grounds under Rule 4-217(i)(2). View "Big Louie Bail Bonds, LLC v. State" on Justia Law

On May 8, 2012, defendant Rosa Lugo Marquez was charged by bill of information with being an alien student and/or a nonresident alien who operated a motor vehicle in the parish of Lafayette without documentation demonstrating that she was lawfully present in the United States. The Supreme Court granted certiorari in this case to determine whether La. R.S. 14:100.13 (which punished as a felony the operation of a motor vehicle by an alien student or nonresident alien without documentation demonstrating lawful presence in the United States), was preempted by federal law under the Supreme Court's recent decision in "Arizona v. United States," (132 S.Ct. 2492 (2012)). Finding that the statute operated in the field of alien registration and was, therefore, preempted by federal law under the Supremacy Clause of the U.S. Constitution as interpreted by the Supreme Court in "Arizona," the Louisiana Supreme Court reversed the rulings of the lower courts and rendered judgment granting defendant's motion to quash.View "Louisiana v. Marquez" on Justia Law

On August 2, 2012, defendant Bonifacio Ramirez was arrested during a traffic stop in for operating a motor vehicle without documentation demonstrating that he was lawfully present in the United States. The Supreme Court granted certiorari in this case to determine whether La. R.S. 14:100.13 (which punished as a felony the operation of a motor vehicle by an alien student or nonresident alien without documentation demonstrating lawful presence in the United States), was preempted by federal law under the Supreme Court's recent decision in "Arizona v. United States," (132 S.Ct. 2492 (2012)). Finding that the statute operated in the field of alien registration and was, therefore, preempted by federal law under the Supremacy Clause of the U.S. Constitution as interpreted by the Supreme Court in "Arizona," the Louisiana Supreme Court reversed the rulings of the lower courts and rendered judgment granting defendant's motion to quash.View "Louisiana v. Ramirez" on Justia Law

In response to the terrorist attacks of September 11, 2001, the Louisiana legislature enacted a series of laws titled "Prevention of Terrorism on the Highways." One of the statutes proscribes the operation of a motor vehicle by an alien student or nonresident alien who does not possess documentation demonstrating lawful presence in the United States. Violation is a felony that carried a fine of not more than $1,000 and/or imprisonment for not more than one year, with or without hard labor. Following a nolo contendere plea to the charge of violating La. R.S. 14:100.13, in which he reserved the right to appeal a claim that the statute was preempted by federal law, defendant appealed his conviction to the Court of Appeal. The appellate court reversed defendant's conviction and sentence, holding that La. R.S. 14:100.13 was indeed preempted. After review of the relevant law, the Supreme Court found that based on "Arizona v. United States," (132 S.Ct. 2492 (2012)), La. R.S. 14:100.13 was preempted by federal law under the Supremacy Clause of the U.S. Constitution. Accordingly, the Court affirmed the court of appeal.View "Louisiana v. Sarrabea" on Justia Law

In his initial application for habeas relief, applicant Erick Alberto Oranday-Garcia alleged his guilty for possession of cocaine was involuntary because trial counsel rendered deficient performance by advising him that conviction for that offense would not result in deportation. Applicant was deported as a result of his offense. He contended that had he understood the effect that the guilty plea would have on his immigration status, he would not have pled guilty but insisted on going to trial. Applicant's trial counsel filed an affidavit with the convicting court specifically refuting the applicant's allegations and maintaining that he had informed the applicant that his conviction would result in deportation. Based on the affidavit, the convicting court recommended denying relief. In a subsequent writ application, applicant argued that the same circumstances in support of his claim that his plea was given involuntarily due to ineffective assistance of trial counsel was supported under the United States Supreme Court's decision in "Padilla v. Kentucky." Applying the requirement of an allegation of prima facie facts to this petition, the Supreme Court dismissed it as non-compliant with Article 11.07, Section 4. The new law that applicant invoked was Padilla, but the Court concluded he did not establish that Padilla applied to the facts of his case because of Texas precedent "Ex parte De Los Reyes," and the United States Supreme Court's opinion in "Chaidez v. United States." Because the applicant's conviction was final before the Supreme Court announced the rule in Padilla, it could not apply to him in any event.View "Ex parte Oranday-Garcia" on Justia Law