Justia Immigration Law Opinion Summaries

Israeli citizens Arturas Bakanovas, Edita Bakanovas, and their daughter, Karolina Bakanovas, sought review of an order of the Board of Immigration Appeals (BIA) that denied their motion to reopen. In 1990 Arturas and Edita Bakanovas emigrated from Lithuania to Israel and became Israeli citizens. In 1991 they entered the United States on visitor visas and, after they overstayed their visas and the Immigration and Nationalization Service issued orders to show cause why they should not be deported, Arturas applied for asylum. The asylum application stated that Arturas had suffered persecution in Israel because of his Catholic faith and Lithuanian origin, that Edita had suffered persecution in Lithuania because of her Jewish faith, and that they both suffered persecution in Israel because of their interfaith marriage. In 1994 an immigration judge denied the Bakanovases asylum and withholding of deportation but granted their request for voluntary departure, with an alternate order of deportation to Israel or Lithuania if they remained in the United States after the voluntary-departure deadline. In October 2000 the BIA affirmed the order, and the Tenth Circuit affirmed that decision. The Bakanovases did not leave the United States, and in January 2007 they were arrested on immigration charges and released on bond. They then met with their current attorney, who informed them in April 2007 of the availability of relief under the Convention Against Torture. In March 2010, almost three years later, they filed a motion to reopen with the BIA, which the BIA denied. They petitioned the Tenth Circuit to review that decision. Because the denial of a motion to reopen is "a final, separately appealable order," the Tenth Circuit lacked jurisdiction to review the case. The Court dismissed Petitioners' appeal.

Ruben Flores-Olmos pleaded guilty to one count of being an alien in the United States after deportation but reserved his right to appeal the district court's denial of his motion to suppress evidence acquired during a traffic stop. On appeal, Flores-Olmos argued that he was the victim of racial profiling. He further contended that the Oklahoma seat belt law is ambiguous and that the doctrine of lenity should absolve him. Finding no error in the district court's refusal to suppress evidence of Flores-Olmos’s illegal presence in the United States, the Tenth Circuit affirmed the district court's decision.

Minta del Carmen Rivera Barrientos suffered an attack at the hands of gang members in her native country of El Salvador. She escaped to the United States and sought asylum. She contended she was eligible for asylum under 8 U.S.C. 1158 because she faced past persecution on account of her political opinion (opposition to gangs) and her membership in a particular social group (young females) who have resisted gang recruitment. The BIA argued that the attack was not on account of her political opinion and that she was not a member of a cognizable social group. Because the Tenth Circuit concluded the BIA’s interpretation of the applicable statute was not unreasonable, the Court concluded the agency did not abuse its discretion in finding that Rivera-Barrientos was ineligible for asylum.

Defendant Juan Jose Montoya-Ruiz appeals his 46-month sentence for unlawful reentry of an alien who had previously been deported after commission of an aggravated felony. On appeal, Defendant challenged the substantive reasonableness of his sentence. Defendant, a native and citizen of Mexico, was sentenced in California on November 14, 1994, for possession of a controlled substance for sale (an aggravated felony) and was thereafter deported. On April 2, 2010, he was found within the State of Colorado and indicted for illegally reentering the United States. His presentence investigation report calculated that under the United States Sentencing Guidelines, the advisory range for his sentence was 46-57 months. The probation office recommended a 50-month sentence. Before the sentencing hearing, Defendant moved for a downward variance. The district court imposed a sentence of 46 months' incarceration. Finding no abuse of discretion by the district court, the Tenth Circuit affirmed Defendant's sentence.

Defendant Doroteo Rendon-Martinez was convicted of possession of a firearm and ammunition by a felon and of illegal reentry by an alien after being deported. He appealed his convictions and 180-month concurrent sentences to the Tenth Circuit. Defendant, a native and citizen of Mexico, was removed from the United States in December 2009. By February 9, 2010, however, he had returned and was living in a house in Oklahoma City. On that day, he thought three men were trying to break into the house. Knowing that a .38 Special revolver and ammunition were on the premises, he grabbed the gun and fired warning shots into the yard. Someone called the police, and when officers arrived they saw Defendant holding the revolver. Upon review, the Tenth Circuit found "there was no error, much less plain error" in the district court's decision in Defendant's case. Accordingly, the Court affirmed Defendant's conviction and sentence.

Petitioner Budiyanto Juned, a native and citizen of Indonesia, appealed a Board of Immigration Appeals' (BIA) decision that denied his applications for asylum and restriction on removal under the Convention Against Torture (CAT). Petitioner came to the United States on a visitor's visa in 1994 and remained after the visa expired. Petitioner petitioned for asylum and restriction on removal on the basis of his political opinion. The BIA affirmed an immigration judge's (IJ) determination that Petitioner was not eligible for asylum because his application was not timely filed and that he did not demonstrate changed or extraordinary circumstances to except himself from the filing deadline. Furthermore, the BIA determined that Petitioner's proffered incidents of mistreatment in his home country did not amount to persecution, nor the likelihood he would be persecuted in the future. Upon review of the BIA record, the Tenth Circuit dismissed Petitioner's asylum claim due to the court's lack of jurisdiction. The Court affirmed the BIA's determination as to all other aspects of Petitioner's claim.

Petitioner Manuel Damaso-Mendoza sought review of a Board of Immigration Appeals' (BIA) decision that found he was removable despite being a lawful permanent resident of the United States. The BIA determined that Petitioner's Colorado felony conviction for menacing was a crime of violence as defined by federal law, and therefore made him removable. Upon review of the applicable legal authority and the BIA's record on appeal, the Tenth Circuit was "persuaded" by the BIA's reasoning that Petitioner's conviction in Colorado on menacing was a crime of violence. Petitioner therefore committed an aggravated felony and was removable from the United States. The Court denied Petitioner's petition for review and dismissed his appeal.

Petitioner Julio Pizano-Zeferino sought review of a Board of Immigration Appeals' order that he be removed from the United States. Petitioner was a Mexican native who entered the United States illegally without being admitted or paroled. Petitioner conceded his removability. Petitioner applied for cancellation of removal, citing exceptional and extremely unusual hardship to his American-citizen children if he were removed to Mexico. The Immigration Judge found that Petitioner did not establish that he had ten years of continuous physical presence in the United State and that he failed to show exceptional and extremely unusual hardship to the children. Instead of seeking review of the BIA's order by the Tenth Circuit, Petitioner obtained new counsel and filed a "motion to reconsider" with the BIA alleging changed circumstances since the IJ hearing. The BIA treated the motion as a motion to reopen its prior decision, and denied it because the evidence either was not previously unavailable or did not establish a prima facie eligibility for cancellation of removal. Upon review of the BIA record, the Tenth Circuit found that Petitioner failed to present any issues for the Court's review. The Court concluded that it did not have jurisdiction to review the matter further and dismissed his appeal.

Defendant Daniel Reyes-Alfonso to one count of illegal reentry after deportation in violation of federal law. Using the 2009 Sentencing Guidelines, the district court calculated an advisory prison range of forty-six to fifty-seven months. Then the court imposed a forty-six month term which represented the bottom of that range. Defendant appealed, arguing that his prior conviction in Colorado for "sexual contact-no consent" was not a forcible sex offense which could be used to enhance the court's sentence. Upon review of the trial court record and the applicable legal authority, the Tenth Circuit concluded that the district court did not abuse its discretion by imposing the forty-six month sentence. The Court held the lower court properly concluded that the Colorado conviction was a forcible sex offense under the sentencing guidelines. Accordingly, the Court affirmed the lower court's decision and Defendant's sentence.

Defendant Ramon Vasquez-Alcarez pled guilty to illegally reentering the United States after he was deported for an aggravated felony conviction. He was sentenced to 27 months' imprisonment, which fell at the low end of the Sentencing Guidelines range. The sentence reflected an enhancement for Defendant's 1995 cocaine trafficking conviction. On appeal, Defendant argued that the district court placed too much weight on the 1995 conviction because it was stale. Therefore, Defendant challenged his sentence as substantively unreasonable. After this appeal was filed, the Sentencing Commission proposed an amendment to the Sentencing Guidelines that, had it been in effect at the time of Defendant's sentence, would have resulted in a lower level enhancement. Defendant contended that the proposed amendment helped his argument that the sentence he received was unreasonable. Upon review of the amendment and the district court's record, the Tenth Circuit was not persuaded by Defendant's argument. The Court found that the district court did not err or abuse its discretion by handing Defendant a 27-month sentence. Accordingly, the Court affirmed Defendant's sentence.