Justia Immigration Law Opinion Summaries

Defendant appealed his convictions for willfully and knowingly making a false statement on a passport application after he prepared, signed, and submitted passport applications for his three stepsons and listed himself as the children's father. The court held that the district court did not err in concluding that the Bronston literal truth defense did not entitle defendant to judgment as a matter of law; in the context of an application for a United States passport, the word "father" was not fundamentally ambiguous; the evidence was sufficient to find that defendant understood the inquiry made by the passport application as the Government itself did and answered the question posed falsely; and the district court did not err in refusing to give defendant's proposed instruction regarding the lack of statutory definition of the word "father." Accordingly, the court affirmed the judgment of the district court.

Defendant appealed his conviction for being a deported alien found in the United States without permission. Defendant contended that the district court should have granted his motion to dismiss the indictment because it was based on a 2001 removal order that was entered in violation of his due process right to counsel, prejudicing his ability to obtain immigration relief. The court concluded that defendant did not waive his right to counsel and was denied his due process right to counsel because he was not properly advised of his rights in a language that he could understand. The court held, however, that this violation of his right to counsel was not inherently prejudicial. Because defendant could not demonstrate that he had a plausible claim to relief in 2001, he was not actually prejudiced as a result of the due process violations in his removal proceedings. Accordingly, entry of the 2001 removal order was not fundamentally unfair.

Petitioner, a professor, told the FBI and the university that she had received hate mail at her office. The FBI and the university spent thousands of dollars investigating before she admitted to writing and delivering the mail herself. In light of overwhelming evidence of guilt and unable to obtain testimony to support a claim of diminished capacity, petitioner's attorney encouraged a plea. Because petitioner is a citizen of India, he consulted an immigration attorney, who opined, incorrectly, that the matter was not an aggravated felony and that she would not necessarily be deported. Petitioner pled guilty to violating 18 U.S.C. 1001, was sentenced to six months in prison, and ordered to pay more than $66,000 in restitution. An immigration judge found her removable under 8 U.S.C. 1227(a)(2)(A)(iii) and the BIA dismissed an appeal. In a companion case, the Sixth Circuit agreed. While in prison, petitioner unsuccessfully challenged her sentence, but not her plea or conviction. After completing her sentence, she filed a petition for a writ of coram nobis, arguing ineffective assistance of counsel. The district court denied the motion. The Sixth Circuit affirmed. Petitioner did not show a reasonable probability that she was prejudiced by the incorrect advice.

Defendant sought relief from a sentence of 240 months in prison, imposed as a result of his illegal reentry into the United States after being removed for a conviction of an aggravated felony. On appeal, defendant raised several procedural challenges to the sentence. The court held that the sentencing court committed no procedural error because the Guidelines did not expressly prohibit the triple counting of defendant's prior record; the court did not impermissibly count defendant's extensive criminal record when it imposed the upward variance justified under the 18 U.S.C. 3553(a) sentencing factors; the district court's upward departures were not procedurally defective; and the 240 month sentence was substantively reasonable. Accordingly, the judgment was affirmed.

Plaintiff's application for naturalization was denied by USCIS when USCIS determined that plaintiff's 2002 conviction in the District of Columbia Superior Court for distribution of cocaine in a drug-free zone qualified as an aggravated felony under the Immigration and Nationality Act (INA), 8 U.S.C. 1101, which prevented plaintiff from establishing his good moral character and thus obtaining citizenship. Plaintiff contended that because his 2002 conviction was set aside under D.C. law, it had no operative effect and USCIS should not have considered it. The court held that plaintiff's conviction remained unchanged for immigration purposes despite the fact that the conviction was set aside on rehabilitative grounds. Because plaintiff's conviction was an absolute bar on obtaining citizenship, his naturalization application was properly denied.

Defendant appealed his convictions related to an alien smuggling organization, challenging the sufficiency of the evidence on two grounds. First, he argued that there was insufficient evidence of alienage with respect to the ten material witnesses named in the indictment who did not testify at trial. Second, as to his conviction for aiding and abetting the bringing of illegal aliens to the United States for financial gain, he contended that there was insufficient evidence linking him to the cross-border transportation of the named material witnesses before they were dropped in the United States, as required by United States v. Lopez. The court held that the jury could reasonably find that defendant rented properties knowing they would be used as load houses long before the named material witnesses were brought across the border. The court also held that defendant knowingly and intentionally aided in bringing about the smuggling of the named material witnesses into the United States. Therefore, a reasonable jury could find sufficient "specific evidence" linking defendant to "intentionally aiding...the cross-border transportation" of the named material witnesses prior to when they were dropped off in the United States. Accordingly, the judgment was affirmed.

Defendant, a U.S. citizen, had a romantic relationship and lived with an illegal alien, who was later arrested on drug charges. After being deported to Mexico, he returned illegally and again lived with defendant. When he was again arrested on drug charges, defendant was convicted under 8 U.S.C. 1324(a)(1)(A), (iii), as one who knowingly or in reckless disregard of the fact that an alien was in the U.S. in violation of law, concealed, harbored or shielded such alien. The statute also covers attempts and transportation. The district judge sentenced her to two years' probation and to pay a $200 fine. The Seventh Circuit reversed, distinguishing between "harboring" and providing shelter, without concealing or shielding from detection.

Petitioner, a native of El Salvador who had been granted LPR status, petitioned for review of the BIA's decision to dismiss his appeal from an IJ's decision classifying him as an alien subject to removal under section 237(a)(2)(A)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. 1227(a)(2)(A)(i). The order of removal was based upon the IJ's determination that petitioner previously had been convicted of a crime involving moral turpitude. Because the court concluded that the moral turpitude provision of the INA was not ambiguous and did not contain any gap requiring agency clarification, the court held that the procedural framework established in Matter of Silva-Trevino was not an authorized exercise of the Attorney General's authority. Accordingly, the court granted the petition and vacated the BIA's decision and the order providing for petitioner's removal.

Defendant was convicted of conspiracy to unlawfully transport illegal aliens, conspiracy to conceal or harbor illegal aliens, and two counts of harboring or concealing illegal aliens, 8 U.S.C. 1324(a)(1)(A)(ii), (iii), (v)(I), and (a)(1)(B)(I). The Fifth Circuit affirmed, upholding the district court's admission of expert testimony by federal law enforcement agents regarding usual locations of passengers in the vehicles used to transport illegal aliens; use of multiple bailouts in illegal alien trafficking; the role of guides; and relationships among drivers, guides, and recruiters. An agent's statement identifying a particular phone number as belonging to unindicted co-conspirator was hearsay, but not prejudicial.

Defendant, a Mexican citizen, was removed from the U.S. in 1989, following convictions for grand theft auto, second degree burglary, amd receiving stolen property. About one month later, he illegally reentered. In 1990, he was convicted in Missouri of rape and armed criminal action and was sentenced to 18 years in prison. The Border Patrol was not notified of his 2008 release, and no removal order issued. In 2009 he was taken into custody and pleaded guilty to one count of illegal reentry, 8 U.S.C. 1326(a), (b)(2). The presentence report recommended enhancing his offense level by 16 levels based on his 1990 conviction. The district court found that, after serving his sentence, defendant unlawfully remained in the U.S., applied the 16-level enhancement and calculated a guidelines imprisonment range of 77 to 96 months, then sentenced him to 90 months. The Fifth Circuit vacated and remanded, holding that a defendant alleged to have unlawfully remained in the U.S. following a qualifying conviction under U.S.S.G. 2L1.2(b)(1)(A) is subject to the 2L1.2(b)(1)(A) enhancement only when a removal order is issued or reinstated after that conviction.