Justia Immigration Law Opinion Summaries

Petitioner, a native and citizen of the Dominican Republic, was convicted of unlawfully transferring a firearm around the same time that the Department of Homeland Security initiated removal proceedings against him. An immigration judge found that Petitioner's conviction constituted an aggravated felony under 8 U.S.C. 1101(a)(43)(C) and pretermitted Petitioner's previously filed application for cancellation of removal. The board of immigration appeals (BIA) affirmed, finding that Defendnat's delivery of a firearm to a purchaser constituted "trafficking in firearms" under the statute. The First Circuit Court of Appeals denied Petitioner's petition for review, holding that the BIA's definition of "trafficking in firearms" as encompassing any commercial exchange was reasonable and consistent with the statute. View "Soto-Hernandez v. Holder" on Justia Law

Rojas, a 22-year old citizen of the Dominican Republic, entered the U.S. in 2003 as a lawful permanent resident. In 2009, Rojas pled guilty to possessing drug paraphernalia and was assessed a fine and court costs by the Pennsylvania state court. The Department of Homeland Security initiated removal proceedings for having violated a law “relating to a controlled substance (as defined in section 802 of Title 21),” 8 U.S.C. 1227(a)(2)(B)(i). Rojas argued that the offense that constitutes the basis of removal must involve a substance defined in section 802 of Title 21. The BIA ordered Rojas removed. The Third Circuit, en banc, remanded. In a removal proceeding under section 1227(a)(2)(B)(i), the government must show that the conviction for which it seeks to remove a foreign national involved or was related to a federally controlled substance. In this case, the Department failed to meet its burden. View "Rojas v. Att'y Gen. of the United States" on Justia Law

Petitioner, a native and citizen of El Salvador, was convicted of brandishing a firearm in the presence of the occupant of a motor vehicle, in violation of California Penal Code section 417.3. An IJ subsequently determined that petitioner's conviction was for a "crime of violence" and thereby an "aggravated felony," making petitioner statutorily ineligible for cancellation of removal and for asylum. The IJ denied withholding of removal and Convention Against Torture (CAT) relief on the merits. After petitioner appealed, the BIA affirmed the IJ's conclusion but issued its own reasoned decision. Petitioner petitioned for review of the BIA's decision. The court dismissed the petition for review, concluding that California Penal Code section 417.3 qualified categorically as a crime of violence under 18 U.S.C. 16(a) and, therefore, petitioner was an aggravated felon who was ineligible for cancellation of removal under 8 U.S.C. 1229b(a)(3). View "Bolanos v. Holder, Jr." on Justia Law

Petitioner, a native and citizen of Peru, was found removable because he had committed a theft offense that qualified as an aggravated felony under 8 U.S.C. 1101(a)(43). At issue was whether the government proved that petitioner was convicted of a qualifying felony theft offense. Applying the modified categorical approach, the court concluded that petitioner was clearly and unambiguously charged as a principal who personally drove or took the vehicle of another, without consent and with the intent to deprive the owner of it under California Vehicle Code section 10851(a). Further, the BIA has held that section 10851(a) was a categorical theft offense even though, in some circumstances, it criminalizes taking a vehicle temporarily. The court has also defined a "theft offense" to include taking property without consent and with the intent to deprive the owner of the property, even if the deprivation is less than total or permanent. Accordingly, the court denied the petition. View "Duenas-Alvarez v. Holder" on Justia Law

Verde, a native of Mexico, became a lawful permanent resident in 1991. After several DUI convictions, he was sentenced to more than two years in prison. In 1998, Verde was charged with removability as an “aggravated felon.” He appeared before an immigration judge with seven other Mexican nationals, was deported, returned, and was removed for a second time in 2000. In 2011 the removal order was reinstated and he was charged with illegal reentry, 8 U.S.C. 1326. The government dropped that charge and allowed him to plead guilty to use of a false Social Security number, 42 U.S.C. 408(a)(7)(B). He was sentenced to time served and supervised release. Verde filed a habeas corpus petition seeking to be reinstated as a permanent resident or to be granted cancellation of removal, arguing that his initial removal was a gross miscarriage of justice because of procedural shortcomings and that, because the Supreme Court has decided that a DUI conviction is not an aggravated felony, his conviction was not a valid basis for original removal. The district court dismissed Verde’s petition for lack of subject matter jurisdiction, reasoning that the REAL ID Act of 2005, 8 U.S.C. 1101, eliminated habeas relief in district courts for aliens challenging orders of removal. The Third Circuit dismissed for lack of jurisdiction. View "Verde-Rodriguez v. Att'y Gen of the United States" on Justia Law

Ashurov, a Tajikistani citizen, entered the U.S. under a visitor’s visa in 2007 and later sought a student visa. The application required submission of Form I-20, the school’s petition to sponsor a student. Ashurov stated that he planned to study English as a Second Language at the CMG School. CMG certified the form and Ashurov signed it without an oath, as required. The application was granted. In 2009 and 2010, Ashurov presented identical forms. In 2010, federal authorities determined that CMG was not providing students the required 18 hours of weekly in-class instruction. The school was closed and its designated official indicted. A jury convicted Ashurov under 18 U.S.C. 1546(a), which punishes a person who “knowingly makes under oath, or ... under penalty of perjury ... knowingly subscribes as true, any false statement with respect to a material fact in any ... document required by the immigration laws ... or knowingly presents any such ... document which contains any such false statement or which fails to contain any reasonable basis.” The district court granted an acquittal, finding that the oath requirement applied to both the “knowingly makes” and “knowingly presents” clauses and, alternatively, applying the rule of lenity. The Third Circuit affirmed, reasoning that the statute is “grievously ambiguous.” View "United States v. Ashurov" on Justia Law

Stokes was a public school teacher for more than 10 years. In 2000, he pleaded no contest to a charge of misdemeanor battery for indecently touching two boys who were his students. Stokes was sentenced to probation, with a prohibition on unsupervised contact with minors. Less than a month after sentencing, Stokes obtained permission to complete his probation in Thailand. Within weeks of his arrival in Thailand, he began seeking boys for sex. This continued for several years until someone tipped off the U.S. Immigration and Customs Enforcement Service, which, with the Royal Thai Police, searched Stokes’s home and recovered a camera, a computer, and compact discs containing thousands of images of Stokes’s sexual activity with Thai boys. Stokes was extradited and convicted of traveling in foreign commerce for the purpose of engaging in a sex act with a minor, 18 U.S.C. 2423(b). The Seventh Circuit affirmed, rejecting claims related to a procedural mistake in the extradition process and to the legality of the search. The Thai foreign ministry waived the “Rule of Specialty,” allowing the government to proceed on a substitute charge. The Fourth Amendment’s warrant requirement and the Warrant Clause have no extraterritorial application, but Stokes was protected by the Amendment’s touchstone requirement of reasonableness. The search was reasonable. View "United States v. Stokes" on Justia Law

Petitioner challenged the BIA's order denying his motion to terminate deportation proceedings. The court denied the petition for review, concluding that petitioner's conviction of witness tampering in violation of Nebraska Statute 28-919(1)(c), (d), constituted an aggravated felony because it was an offense relating to the obstruction of justice under 8 U.S.C. 1101(a)(43)(S). View "Armenta-Lagunas v. Holder, Jr." on Justia Law

Petitioner, a citizen of Guatemala, petitioned for review of the BIA's decision affirming the IJ's order of removal. After the Government instituted removal proceedings, petitioner filed a motion to suppress the Government's evidence, arguing that ICE officers obtained the evidence in violation of his Fourth and Fifth Amendment rights when they forcibly gained entrance to his home and arrested him without a warrant or probable cause. The court concluded that the IJ erred in finding that petitioner's submissions were insufficient to shift the burden to the Government to establish consent and erred in concluding that the facts alleged, even accepted as true, were insufficient to yield an egregious Fourth Amendment violation requiring suppression. Accordingly, the court vacated and remanded. View "Cotzojay v. Holder" on Justia Law

In 1993, Zambrano, a lawful permanent U.S. resident, pleaded guilty to aggravated sexual abuse of a minor, an aggravated felony that made him deportable. He served four years of probation. Until 1996, permanent resident aliens facing deportation could apply for a discretionary Section 212(c) waiver. Zambrano, having been in the U.S. since 1979 and not having served any jail time for his felonies, likely would have obtained, a Section 212(c) waiver had his deportation order been entered before 1996. His removal proceedings began in 1998, after enactment of the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act. Section 212(c) waivers were replaced with narrower discretionary relief, “cancellation of removal,” under which the Attorney General may cancel removal for certain lawful permanent residents, but not for those convicted of aggravated felonies. 8 U.S.C. 1229b(a)(3). Zambrano was removed 2000. A decade later, back in the U.S, he was charged with illegal reentry, 8 U.S.C. 1326. Zambrano pleaded guilty, but on the eve of sentencing, moved to withdraw his plea, based on the Supreme Court’s 2011 decision, Judulang v. Holder. The district court denied the motion and sentenced Zambrano to 12 months and one day. The Seventh Circuit affirmed. View "United States v. Zambrano" on Justia Law