Justia Immigration Law Opinion Summaries

In 1992, Pesikan a six-year-old citizen of Bosnia, along with his mother, fled Bosnia. In 1998, they entered the U.S. as refugees and gained lawful permanent resident status. In 2017, Pesikan caused a car accident. A responding officer found a half-consumed bottle of whiskey on Pesikan’s driver’s seat and marijuana in the door pocket. A blood test of Pesikan revealed the presence of cocaine, marijuana, alprazolam, and a ,054 blood alcohol content. Pesikan was convicted in Pennsylvania of DUI six counts; the court merged the DUI counts into Count 2–for driving while under the influence of marijuana.Pesikan was charged with removability as an alien convicted of violating a law relating to a controlled substance, 8 U.S.C. 1227(a)(2)(B)(i), which asks whether a noncitizen has been convicted of a violation of any law relating to a federally controlled substance. Pesikan argued that, applying the categorical approach to comparing state and federal crimes, Pennsylvania’s DUI statute is broader than the federal law because it allows for convictions based on the use of substances that are not federally controlled. The IJ held that the Pennsylvania statute is divisible, applied the modified categorical approach, and denied a motion to terminate. The BIA dismissed Pesikan’s appeal. The Third Circuit granted a petition for review. Because the identity of the specific controlled substance is not an element of the Pennsylvania DUI statute, that statute is indivisible and cannot serve as the basis for Pesikan’s removal. View "Pesikan v. Attorney General United States" on Justia Law

Defendant a citizen of Mexico, has been deported from the United States repeatedly over the past three decades. The list of crimes he has committed in the United States is extensive. Most recently, Defendant pleaded guilty to illegally reentering the United States after a prior deportation. At the time of this offense, Defendant was 51 years old, but had only spent one year of his adult life in Mexico, his country of citizenship. Under the Sentencing Guidelines, Defendant’s recommended range spanned from 3 years and 10 months (46 months) to 4 years and 9 months (57 months). The district court sentenced Defendant to 6 years (72 months). Defendant challenged his sentence as procedurally and substantively unreasonable.   The Fifth Circuit affirmed. The court explained that the Government concedes that the district court mistakenly counted six prior theft convictions when there were only four and mistakenly suggested that Defendant had served 7 years for a 1991 vehicle burglary conviction when he actually served 10 months of the 7-year sentence. These, the Government admits, were obvious errors. Yet the Government argues, and we agree, that these misstatements did not affect Defendant’s substantial rights. Nor did they impugn the fairness, integrity, or reputation of the proceedings. Further, the court wrote it has previously affirmed the substantive reasonableness of a 72-month sentence for illegal re-entry. Thus, the court concluded that this sentence was substantively reasonable, as well. View "USA v. Recio-Rosas" on Justia Law

The First Circuit denied Petitioner's petition for review of the Board of Immigration Appeals' (BIA) decision dismissing Sandra St. John's appeal from the judgment of the Immigration Judge (IJ) denying her statutory motion to reopen, holding that there was no abuse of discretion in the agency's denial of St. John's statutory motion to reopen.The Department of Homeland Security initiated removal proceedings against St. John based on her conviction for mayhem in the Commonwealth of Massachusetts. After going into ICE custody, St. John filed a motion in the Massachusetts superior court asking it to vacate her mayhem conviction and grant a new trial on ineffective assistance of trial grounds. St. John then moved for reopening of her removal proceedings on the grounds that her motion to vacate had rendered the mayhem conviction nonfinal for immigration purposes. The IJ denied the motion, and the BIA dismissed the appeal. The First Circuit denied Petitioner's petition for review, holding that the agency did not abuse its discretion in declining to reopen the order of removal based on final criminal convictions. View "St. John v. Garland" on Justia Law

Defendant was convicted of illegally reentering the country after a previous deportation, in violation of 8 U.S.C. Section 1326(a) & (b)(2). He claimed that the district court wrongly denied his request for a jury instruction about duress and inappropriately applied an enhancement to his sentence for obstruction of justice. Mora argues that the district court’s finding did not address all the elements of perjury. The district court stated that “this Defendant lied under oath to that jury” and that “he obstructed justice.” Defendant posits that this does not address whether the lie was willful or material.   The Fifth Circuit affirmed. The court explained that the defendant must present proof of each element to receive a jury instruction on duress. The court wrote that even taking the evidence in the light most favorable to Defendant, he has not presented proof that he was in danger at the moment of his offense. The court reasoned that there is no reason to believe that he was detained, followed, or surveilled in the interim between his abduction and the commission of the offense.   Further, the court explained that the obstruction of justice enhancement applies if “the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and . . . the obstructive conduct related to . . . the defendant’s offense of conviction and any relevant conduct.” The court wrote that it found that the district court’s finding “encompasses all of the factual predicates for a finding of perjury.” View "USA v. Mora-Carrillo" on Justia Law

Petitioner has been a lawful permanent resident (LPR) of the United States since 2003. Since that time, he has been convicted of various crimes, including theft, criminal trespass, a DUI, and, as relevant here, possession of heroin in violation of Oregon law. After he received a notice to appear (NTA) initiating removal proceedings, Petitioner applied for cancellation of removal. The immigration judge (IJ) denied the petition and the Board of Immigration Appeals (BIA) dismissed Petitioner’s appeal.   The Ninth Circuit denied Petitioner’s petition for review. The court held that the agency did not err in concluding that the stop-time rule set forth in 8 U.S.C. Section 1229b(d)(1)(B), which terminates accrual of the requisite seven years of continuous physical presence, is calculated from the date a petitioner committed the criminal offense that rendered him removable, rather than the date he was convicted. A lawful permanent resident becomes removable once he is convicted of a qualifying offense, and if the offense is committed within seven years of being admitted into the United States, the Attorney General lacks discretion to cancel removal. Here, Petitioner committed the offense a few months shy of satisfying the seven-year continuous residence requirement, but the conviction became final outside the statutory seven-year period. The panel held that the agency did not err in deciding that the stop-time rule is calculated from the date Petitioner committed the criminal offense that rendered him removable, rather than the date he was convicted. View "RUDNITSKYY V. GARLAND" on Justia Law

Avila, a citizen of Honduras, experienced extreme sexual violence and attempted suicide more than once before fleeing Honduras. She became a lawful permanent resident in 2001. Between 1990-2004, she was convicted of misdemeanor shoplifting; misdemeanor tampering with public records; and petty theft. In 2008, Avila re-entered the U.S. and was charged with removability, 8 U.S.C. 1182(a)(2)(A)(i)(I), because her convictions were for “Crimes Involving Moral Turpitude” (CIMT). Avila failed to attend her scheduled hearing and was ordered removed in absentia. In 2015, her proceeding was reopened. Avila moved to terminate her removal proceedings, conceding that her petty theft offense was a CIMT but citing the petty offense exception, which applies to a noncitizen “who committed only one crime.” She argued that her misdemeanor shoplifting and tampering with public records convictions did not qualify as “crimes” but were merely disorderly persons offenses.An IJ determined that Avila was not eligible for cancellation of removal, finding that the disorderly persons offenses were CIMTs for immigration purposes. The BIA affirmed. The Third Circuit agreed that disorderly persons offenses under section 2C:20-4(a) of the New Jersey Statutes constitute convictions of crimes for immigration purposes. The court granted reconsideration of Avila’s asylum claim The BIA failed to consider whether Avila’s particular social group, “Honduran women in a domestic relationship where the male believes that women are to live under male domination,” was cognizable in light of the specific country conditions in Honduras. View "Avila v. Attorney General United States of America" on Justia Law

The Department of Homeland Security (DHS) reinstated a 1999 removal order entered against Petitioner. Because Petitioner expressed a fear of returning to Mexico, an asylum officer conducted a reasonable fear screening interview to determine whether Petitioner should be given the opportunity to establish his claims at a merits hearing before an Immigration Judge (IJ) on his application for withholding of removal and relief under the Convention Against Torture (CAT). The asylum officer determined, and an IJ affirmed, that Petitioner did not show a reasonable possibility of persecution or torture were he to be removed. Consequently, Petitioner never had the opportunity to present additional evidence of his claims at a merits hearing. Petitioner now petitions for a review of the IJ’s negative reasonable fear determination at the screening stage.   The Ninth Circuit granted Petitioner’s petition. The panel held that Petitioner’s own credible testimony sufficiently established a reasonable fear of persecution or torture to warrant a hearing before an IJ on the merits of his claims for relief. Petitioner credibly testified that three cartels seek to control the region around his hometown in Mexico, and Autodefensa, a local community defense group, fights to prevent cartel influence. As part of the conflict, the cartels carry out weekly attacks to kill Autodefensa members and target families of community defense members to erode resistance to cartel control. One of Petitioner’s uncles is the leader of Autodefensa. Petitioner fears that, if removed to Mexico, the cartels will discover his identity as a relative of Autodefensa members and harm or kill him. View "ERIC HERMOSILLO V. MERRICK GARLAND" on Justia Law

Petitioner petitioned for review of a decision of the Board of Immigration Appeals affirming the finding that he is removable on the ground that he committed a crime involving moral turpitude for which “a sentence of one year or longer may be imposed.” 8 U.S.C. Section 1227(a)(2)(A)(i). The predicate offense, a 2017 conviction for possession of a forged instrument, is a Class A misdemeanor under New York law. In 2019, after his conviction, New York enacted Penal Law Section 70.15(1-a), which lowered the maximum possible sentence for Class A misdemeanors from one year to 364 days. Petitioner asserts that because the statute is retroactive for state law purposes, his prior conviction no longer constitutes a basis for removal because it is not a crime for which “a sentence of one year or longer may be imposed,” as required by the removal statute.   The Second Circuit denied Petitoner’s petition. The court wrote that it declines to give retroactive effect to New York’s modification of its sentencing scheme for purposes of federal immigration law. The removal statute focuses on the historical fact of an alien’s prior conviction and thereby consults the state law applicable at the time of the criminal proceedings, not at the time of the removal proceedings. View "Peguero Vasquez v. Garland" on Justia Law

Petitioners in this immigration case are a husband and wife who applied for asylum and withholding of removal based on their membership in the proposed particular social group of “Salvadoran business owners.” The immigration judge (IJ) denied the family asylum and withheld removal, concluding that “extorted business owners” do not constitute a particular social group (PSG), that no showing of nexus is possible without a PSG, and that extortion is not persecution. The Board of Immigration Appeals (BIA) dismissed the appeal, agreeing with the IJ’s ruling that the family had not asserted a cognizable PSG.   The Fifth Circuit denied Petitioners’ petition for review. The court held that regardless of geography, “business owners” are not a protected social group. The court explained that to be eligible for asylum, an applicant must show, among other things, that “race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.” The court wrote that “business owner” is not an immutable trait. The court reasoned that because a PSG is an essential element of claims for asylum and withholding of removal, Petitioners cannot succeed on either claim. View "Munoz-De Zalaya v. Garland" on Justia Law

\Petitioner, a native and citizen of Mexico, petition for review of a final order of removal entered by the Board of Immigration Appeals. The Board determined that Petitioner was ineligible for cancellation of removal because his prior conviction for receipt of stolen property was a crime involving moral turpitude. The Board also held that the immigration judge (IJ) provided Petitioner with legally adequate notice of the conditions applicable to his voluntary departure.   The Fourth Circuit affirmed the Board’s holding that Petitioner’s conviction for receipt of stolen property rendered him ineligible for cancellation of removal. However, the Board erred in concluding that the IJ was not required to advise Petitioner of the bond requirement before granting voluntary departure. Accordingly, the court denied the petition with respect to the cancellation of removal but remanded for the Board to consider Petitioner’s request for voluntary departure. The court explained that the Board did not address whether an alien must show he was prejudiced by the IJ’s delay in providing the required advisals or whether Petitioner had made such a showing. The court therefore granted the petition in part and remanded for the Board to consider Petitioner’s request for remand to the IJ for a new period of voluntary departure with the required advisal. View "Cesar Solis-Flores v. Merrick Garland" on Justia Law