Articles Posted in U.S. 10th Circuit Court of Appeals

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Petitioner Enrique Garcia-Mendoza petitioned the Tenth Circuit for review of the Board of Immigration Appeals’ (BIA) decision upholding an Immigration Judge’s (IJ) denial of his request for cancellation of removal. The agency determined that he was ineligible for such relief because he could not establish that he "ha[d] been a person of good moral character" due to his confinement in a penal institution for more than 180 days. In 2010, he was arrested and charged with driving under the influence and leaving the scene of an accident. He could not afford bond and remained confined during his pretrial criminal proceedings. He was released after he had been confined for a total of 197 days when the Department of Homeland Security (DHS) took him into custody and initiated removal proceedings. Petitioner conceded that he was removable for remaining in the United States beyond his authorized period of stay and applied for cancellation of removal. The IJ denied his request because petitioner had been confined for more than 180 days for his 2010 conviction and therefore he could not establish the requisite good moral character. While petitioner’s appeal of that decision was pending with the BIA, he filed a motion with the state trial court seeking to amend his sentence. In the motion, he alleged that his counsel failed to advise him of the immigration consequences of his sentence before he entered his guilty plea. He asked the court to resentence him to 166 days with no credit for time served. The state court granted the motion and issued a modified mittimus nunc pro tunc to the original sentencing date. Petitioner then filed a motion for remand with the BIA based on the new evidence that his sentence was modified to 166 days. The BIA granted the motion and remanded to the IJ. On remand, the IJ again denied cancellation of removal, noting that the nunc pro tunc order modifying the sentence did not change the fact that petitioner had already been confined for more than 180 days as a result of his conviction. The BIA upheld the IJ’s decision. Petitioner then petitioned the Tenth Circuit. Seeing no reversible error, the Tenth Circuit Court of Appeals denied review. View "Garcia-Mendoza v. Holder" on Justia Law

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Hoping to remain in the United States from her native Jamaica, Defendant-Appellant Shannakay Hunter married a United States citizen. The government regarded the marriage as a sham and charged defendant with conspiracy and participation in a fraudulent marriage. A jury found her guilty on both charges. Defendant appealed, arguing that: (1) the district court should have required proof that defendant had married solely to evade the immigration laws; (2) the evidence of guilt was insufficient; (3) the marriage was “void” under state law; (4) the application of 8 U.S.C. 1325(c) resulted in a denial of equal protection, and (5) section 1325(c) is overbroad. Rejecting each argument, the Tenth Circuit affirmed. View "United States v. Hunter" on Justia Law

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An immigration judge found petitioner Nadia Maatougui removable for marriage fraud in 2004. Petitioner then asylum and four other forms of relief from removal. The Immigration Judge denied the requests, and the Board of Immigration Appeals affirmed. Petitioner claimed on appeal to the Tenth Circuit that the IJ and BIA erred in denying her a hardship waiver and cancellation of removal based on their credibility determinations and the weight they gave the evidence in her case. Under case law, the Tenth Circuit determined it did not have jurisdiction to overturn their credibility determinations or evidence weighing, and thus could not grant relief on that claim. Petitioner also claimed that changed conditions in her native Morocco and the ineffective assistance of her prior counsel at a hearing in 2004 merited reopening her case. The Tenth Circuit concluded petitioner failed to present new, material, previously unavailable evidence that justified reopening her case. View "Maatougui v. Holder, Jr." on Justia Law

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Petitioner Arturo Velasco appealed an order of the Board of Immigration Appeals (BIA) that dismissed his appeal of an immigration judge's (IJ) order denying his application for cancellation of removal under the Immigration and Nationality Act (INA). Because petitioner had been granted suspension of deportation during prior deportation proceedings, he was ineligible for cancellation of removal. View "Velasco v. Holder" on Justia Law

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An Indonesian couple appealed the denial of their applications for withholding of removal and relief under the Convention Against Torture (CAT). Upon review, the Tenth Circuit found the application was untimely, and therefore dismissed for lack of jurisdiction. View "Batubara v. Holder" on Justia Law

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Pro se petitioner Peter Munis appealed a Board of Immigration Appeals (BIA) order that dismissed his appeal of an immigration judge's denial of his request for discretionary removal. Petitioner overstayed his student visa and got a job without authorization which led to initiation of removal proceedings. Petitioner conceded the charge of removability, but sought discretionary relief, arguing that his marriage to an American citizen was grounds to adjust his status, and without relief, would pose an extreme hardship to his wife. The government raised petitioner's criminal history as grounds for removal. The IJ denied relief and the BIA dismissed his appeal. Finding that the BIA's discretionary denial of a waiver of inadmissibility or adjustment of status absent a legal or constitutional question was unreviewable, the Tenth Circuit dismissed petitioner's appeal for lack of jurisdiction. View "Munis v. Holder" on Justia Law

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Petitioner Arturo Montano-Vega admitted to remaining in the United States illegally, and requested permission to leave voluntarily. Petitioner wanted to avoid a ten-year bar on readmission for aliens who had been "ordered removed." The immigration judge hearing petitioner's case refused the request. Petitioner appealed to the Board of Immigration appeals: if he continued the appeal, he would have to stay in the U.S. for the duration; if he left, the BIA would consider his appeal abandoned and subject petitioner to the ten-year ban. Petitioner elected to leave, and the BIA dismissed his appeal. Petitioner appealed the BIA's decision to the Tenth Circuit challenging the application of 8 C.F.R. 1003.4 to his case in addition to the immigration judge's refusal to allow him to leave voluntarily. Upon review, the Tenth Circuit denied petitioner's challenge to the BIA order because by leaving, his appeal was deemed withdrawn, leaving the court without jurisdiction to hear the case. View "Montano-Vega v. Holder" on Justia Law

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Petitioner Elia Ibarra was ordered removed by the Department of Homeland Security for a Colorado conviction on child abuse. The events leading up to her conviction were unclear, but it was undisputed that petitioner's children were unintentionally left home alone while she was at work. No child was injured. Petitioner requested discretionary relief from removal under 8 U.S.C. 1229b(b)(1). The immigration judge hearing petitioner's case decided that she was ineligible cancellation of removal. Petitioner then appealed to the Tenth Circuit to review the immigration judge's decision that found her Colorado conviction for "child abuse-negligence-no injury" was the same as (or close enough to be categorically considered) "child abuse, neglect or abandonment" as codified under the Immigration and Nationality Act. Upon review, the Tenth Circuit agreed with petitioner that the Board of Immigration Appeals' then-current interpretation of "child abuse, neglect and abandonment" extended the full range of conduct criminalized by the Colorado statute. Accordingly, the Court reversed the BIA's decision rendering petitioner ineligible for discretionary cancellation of removal. View "Ibarra v. Holder, Jr." on Justia Law

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Nepalese native and citizen petitioner Narendra Raj Karki petitioned the Tenth Circuit to review a Board of Immigration Appeals (BIA) decision affirming an order of an immigration judge (IJ) that denied his application for asylum and restriction on removal under the Immigration and Nationality Act (INA) and protection under the United Nations Convention Against Torture (CAT). Petitioner entered the United States in 2007 in order to present a paper at a forestry conference in Oregon. His visitor's visa authorized him to remain in the country for approximately one month. A few days after the visa expired, Petitioner filed an asylum application, which was denied by an asylum officer and referred to an immigration judge. Removal proceedings were initiated against him in early 2008. At the removal proceedings, Petitioner renewed his application for asylum and sought restriction on removal under the INA and protection under the CAT, claiming that he had suffered past persecution and feared future persecution based on his political opinion and membership in a particular social group. The IJ concluded that Petitioner had failed to establish a nexus between his alleged fear of persecution and a statutorily protected ground. On appeal, the BIA affirmed the IJ's conclusion that the incidents described by Petitioner did not rise to the level of past persecution thus concluding that Petitioner was not eligible for asylum or restriction on removal because he had not shown past persecution or a fear of future persecution based on his political opinion. Furthermore, the BIA concluded that Petitioner was not eligible for relief under the CAT because he had not shown that the government of Nepal was likely to torture him or acquiesce in his torture if he returned. Upon review, the Tenth Circuit concluded that the record as a whole did not support the BIA's conclusion that Petitioner failed to show that public officials in Nepal would likely acquiesce in his torture by Maoists if he returned to Nepal. Accordingly, the Court granted the petition for review as to Petitioner's CAT claim. The Court noted that there was no agency factfinding on the likelihood that Petitioner will be tortured if he returned to Nepal, and on remand the agency could consider whether Petitioner had shown a sufficient likelihood of torture to be entitled to CAT relief. The case was remanded for further proceedings. View "Karki v. Holder" on Justia Law

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Pro se petitioner Lucio Salgado-Toribio sought review of a Board of Immigration Appeals (BIA) order denying his motion to reopen removal proceedings. Petitioner had been using the federal courts' procedures to put off removal for more than three years since an immigration judge found him removable. This appeal was his third time seeking the Tenth Circuit's review of an administrative decision over which the Court found it had no jurisdiction. "Enough is enough. We deny Petitioner's motion to proceed in forma pauperis, dismiss the petition for review, and recommend that the Department of Homeland Security enforce the order of removal immediately." View "Salgado-Toribio v. Holder" on Justia Law