Justia Immigration Law Opinion Summaries

Defendant was convicted of illegal reentry in 2004, escape, and a second count of illegal reentry with a found-in date of June 7, 2007. Defendant appealed his conviction on the second illegal reentry offense, challenging the denial of his motion to dismiss based on violation of the 30-day preindictment time limit imposed by the Speedy Trial Act, 18 U.S.C. 3161(b). The court held that the Speedy Trial Act's 30-day preindictment time limit, which ordinarily ran from the date of the defendant's initial arrest, restarted when the underlying complaint was dismissed without prejudice and the charges were later refiled. In this case, the 30-day clock both started and stopped upon the filing of the second superseding indictment, which reinstated the dismissed illegal reentry charge. Therefore, there was no violation of section 3161(b) and the district court properly denied defendant's motion to dismiss.

Petitioner, a native and citizen of China, petitioned for review of the BIA's decision denying his applications for adjustment of status, asylum, withholding of removal, and protection under the Convention Against Torture. Petitioner also appealed both the IJ's denial of his motion for a continuance and the BIA's denial of his motion to remand to the IJ for reconsideration of his application for adjustment of status. The court held that substantial evidence did not support the IJ's finding, and the BIA's conclusion, that petitioner was married and thus ineligible for adjustment of status as the unmarried son of a United States citizen. The court also held that the IJ abused her discretion by denying petitioner's motion for a continuance, and the BIA erred in upholding the denial. Therefore, the court granted the petition as to petitioner's adjustment of status application and remanded to the BIA for further proceedings.

In consolidated petitions for review, petitioner challenged two decisions by the BIA: first, challenging the finding that she was statutorily ineligible for asylum, withholding of removal and protection under the Convention Against Torture (CAT) in the form of withholding of removal based on the terrorism bars in 8 U.S.C. 1158(b)(2)(A)(v); and second, challenging the finding that she was not entitled to deferral of removal under the CAT. The court held that because the BIA's conclusions that the Eritrean Liberation Front (ELF) was a terrorist organization and that petitioner engaged in terrorist activities were supported by substantial evidence and that the court lacked jurisdiction to address other arguments raised by petitioner, the court denied in part and dismissed in part those aspects of the petitions for review. The court held, however, that because the record compelled the conclusion that petitioner had demonstrated that it was more likely than not that upon a return to Eritrea she would be tortured by or with the acquiescence of the Eritrean government, the court granted relief of removal under the CAT.

Defendant pleaded guilty for unlawfully attempting to reenter the United States after having previously been removed. At issue was whether the district court erroneously held that defendant's petty theft convictions each categorically qualified as an aggravated felony. The court held that because the judicially-noticeable documents submitted by the United States Attorney established clearly and unequivocally that defendant's May 30, 2006 petty theft conviction was based upon his plea of guilty to conduct that constituted a generic theft offense, and because this was a theft offense conviction for which the term of imprisonment was at least one year, defendant's offense level was correctly increased by eight levels under U.S.S.G. 2L1.2(b)(1)(C).

Petitioner, a citizen and national of Honduras, filed an application for deferral of removal under the Convention Against Torture (CAT). The BIA denied the application, concluding that petitioner had not established that he would more likely than not be tortured if removed to Honduras. The court held that, because the BIA failed to give reasoned consideration to potentially dispositive testimony by petitioner's expert witnesses and did not address all of petitioner's claims, the court granted the petition and remanded to the BIA.

Defendant appealed from his conviction for importation of marijuana and possession of marijuana. Defendant contended, inter alia, that the district court erred by preventing him from presenting evidence of duress at trial and by refusing to give a jury instruction on the defense of duress. The court held that the district court did not err in finding that defendant failed to make the prima facie showing of duress necessary to present the defense at trial and to receive a duress jury instruction.

Petitioner sought, inter alia, to reopen his immigration proceedings by raising challenges to, or seeking an exception to, the April 26, 2005, deadline to seek relief under former section 212(c) of the Immigration and Nationality Act (INA), 8 C.F.R. 1003.44. The court held that section 1003.44's deadline to file special motions to reopen was a constitutionally-sound procedural rule and that absent some exceptional circumstances, not present here, petitioners that missed the deadline were not entitled to relief from that deadline.

Petitioner timely petitioned for review of the BIA's decision affirming the IJ's holding that defendant was ineligible for cancellation of removal because his domestic violence conviction constituted an "aggravated felony" under 8 U.S.C. 1101(a)(43)(F). Defendant argued that because an aggravated felony was defined as a crime of violence for which a term of imprisonment was at least one year, and because his 365-day sentence was completed during a leap year, which was 366 days long, his California conviction did not qualify as an aggravated felony. The court held that the BIA was correct to conclude that, for purposes of section 1101(a)(43)(F), a sentence of 365 days qualified as a term of imprisonment of at least one year," even when the sentence was served in whole or in part during a leap year. The court concluded that all of petitioner's arguments for cancellation of removal have been addressed by the court's precedents and none have been resolved in his favor. Accordingly, the court denied the petition for review.

Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's order affirming the IJ's decision that petitioner did not suffer from ineffective assistance of counsel and declining to address the remainder of the issues raised in petitioner's brief. At issue was whether an alien in removal proceedings could withdraw his former attorney's admission of the government's factual allegations when the propriety of the admission had been severely undercut by subsequent legal developments that could, in fact, mean that the admission was false. The court granted the petition for review and remanded to the BIA for it to consider the IJ's alternative holding that petitioner's testimony established that he "knowingly encouraged, induced, assisted, or aided" his brother to enter the United States illegally. If the agency ultimately concluded that the government had not carried its burden of proving that petitioner was removable for smuggling his brother, petitioner must be given the opportunity to seek a waiver for the ground of removeability that he did not contest, the smuggling of his wife.

Petitioner, a citizen and national of India, petitioned for review of the BIA's decisions. At issue was whether petitioner established changed or extraordinary circumstances that would excuse his untimely application for asylum. The court held that the BIA applied incorrect legal standards when it determined that petitioner had not established changed or extraordinary circumstances, excusing his untimely application, because the relevant inquiry should have been why petitioner delayed his application, not that the arrest of his wife triggered his application. The court also held that the BIA's determination that petitioner failed to file his application within a reasonable period of time after his lawful non-immigrant status expired was not supported by substantial evidence. Accordingly, the court granted the petition and remanded the matter to the BIA so that it could apply the correct legal standard in the first instance.