Justia Immigration Law Opinion Summaries

Defendant appealed his conviction for being a previously-removed alien found in the United States. Defendant argued that the district court erred in refusing to give a requested jury instruction, which would have permitted defendant to argue that the government had failed to establish that defendant was an alien who had not obtained derivative citizenship from his stepfather, a United States citizen listed on defendant's birth certificate as his father. The court held that because it found in a second trial, defendant could require the government to come forward with proof that defendant was an alien and did not have derivative citizenship, the court reversed defendant's conviction and remanded for a new trial.

Petitioner appealed the BIA's decision affirming the IJ's conclusion that, due to fraud in obtaining her admission, petitioner was not a Legal Permanent Resident (LPR) and therefore, was not eligible for cancellation of removal. Petitioner contended that the INS inspectors, who interrogated her at the airport upon her arrival to the United States from the Philippines, violated the confidentiality provisions of the statute governing the Special Agricultural Workers program (SAW), 8 U.S.C. 1160. The court held that the confidentiality provisions were not contravened during the inspection at issue in this case because the agents did not access petitioner's SAW application. Therefore, the court denied the petition for review.

Defendant pled guilty to one count of reentry of removed alien and the district court applied a sixteen-level enhancement for a previous "alien smuggling offense." Defendant filed a motion on March 5, 2010, arguing that the enhancement should not have applied and the district court, twenty-eight days after sentencing, held a hearing on the motion. At a hearing on April 12, 2010, the district court entered an amended judgment and the government subsequently appealed the district court's resentencing of defendant, arguing that the district court did not have jurisdiction to resentence more than fourteen days after sentencing, under Federal Rule of Criminal Procedure 35(a). The court held that the fourteen day provision in Rule 35(a) was jurisdictional and the district court was thus without jurisdiction to resentence defendant. Accordingly, defendant's original sentence must be reinstated. The court further held that, even if the district court had jurisdiction to correct its error, it was still error nonetheless. Accordingly, the amended judgment was vacated and the original judgment was reinstated.

Defendant was convicted on two counts of violating 8 U.S.C. 1326, which prohibited a deported alien from reentering the United States without the consent of the U.S. Attorney General. Defendant appealed from his conviction and from his subsequent sentence of 96 months imprisonment. The court held that the district court acted within its discretion when it excluded defendant's minimally relevant evidence at issue, which presented the potential for jury confusion and which could have resulted in a verdict premised on mere speculation. The court also held that because the trial record contained nothing more than a mere scintilla of evidence of derivative citizenship, the district court did not abuse its discretion when it found the requisite evidentiary foundation lacking and refused to instruct the jury pursuant to that theory. The court further held that the district court did not err by upwardly adjusting defendant's sentence pursuant to a multiple count enhancement and that defendant's sentence was both substantively and procedurally reasonable. Accordingly, the judgment was affirmed.

Defendant was charged with crimes stemming from conduct involving her live-in nanny and housekeeper where defendant arranged for her to travel from her native Peru to the United States in 2006 by entering under a fraudulently-obtained visa to serve as a nanny and housekeeper. Defendant appealed her convictions for forced labor, related offenses of document servitude, and harboring an alien for financial gain. Defendant also appealed three sentencing enhancements and the restitution order. The court affirmed the convictions on all counts as supported by sufficient evidence. With respect to sentencing, the court declined to reach the merits of the first enhancement for visa fraud because it did not affect the guidelines offense level; affirmed the second enhancement holding defendant in forced labor for over one year; and affirmed the third enhancement for committing a felony "in connection with" forced labor. As for the restitution order which presented a question of first impression regarding whether child support arrearages belonged to a criminal defendant such that they could be assigned to a victim by restitution order while defendant's children were still minors, the court held that the minor child was the real party in interest to the accrued support. Therefore, any money that defendant received for child support did not belong to her but rather her children and it could not be assigned to the nanny/housekeeper. Accordingly, the judgment was affirmed in part and reversed in part.

Petitioner, a native and citizen of India, appealed from the BIA's denial of his motion to reopen premised on ineffective assistance of counsel. Petitioner married a U.S. citizen during the pendency of his appeal from the IJ's denial of his affirmative asylum application. Petitioner was the beneficiary of an approved immediate relative visa, and sought to reopen so that he could apply for adjustment of status. The court held that the BIA's denial of petitioner's motion to reopen because counsel did not render ineffective assistance was an abuse of discretion. In addition, if petitioner's failure to depart was not "voluntary" under In re Zmijewska, he remained eligible for adjustment of status and counsel's failure prejudiced him. Accordingly, the court granted the petition for review and remanded for further proceedings.

Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's decision dismissing his appeal from an IJ's order finding him removable and denying his application for cancellation of removal. Petitioner challenged the BIA's finding that his six convictions for "willfully manufacturing, intentionally selling, and knowingly possessing for sale more than 1,000 articles bearing a counterfeit trademark," in violation of California Penal Code 350(a)(2), constituted an aggravated felony as an "offense relating to... counterfeiting." Petitioner also maintained that the generic offense of counterfeiting referred only to the imitation of currency and that this conviction under section 350 did not require proof of his intent. The court held that the definition of aggravated felony extended to convictions for the unauthorized imitation of trademarks. The court also rejected petitioner's remaining argument that section 350 did not incorporate "an intent to defraud" as an essential element of the offense because "[t]he commission of the crime necessarily defrauds the owner of the mark, or an innocent purchaser of the counterfeit items, or both," and the court had "difficulty distinguishing such intent from a general intent to defraud[.]" Accordingly, the petition for review was denied.

Petitioner, an Indonesian citizen of Chinese descent, petitioned for review of the BIA's order affirming an IJ's denial of her claims for asylum and withholding of removal. At issue was whether the IJ correctly determined that petitioner's asylum application was untimely because she had not established an exception to the one-year filing requirement. The court held that the BIA erred as a matter of law in finding that fraudulent deceit by an immigration consultant could not constitute an "extraordinary circumstance" that excused an otherwise untimely asylum application. Therefore, the court granted the petition and remanded for the BIA to consider whether the ordeal petitioner experienced constituted fraudulent deceit by an immigration consultant and whether she filed her asylum application within a reasonable time after such circumstance, thereby excusing the untimeliness of her application and requiring the BIA to consider her asylum application on the merits. With respect to petitioner's claim for withholding of removal, the court granted the petition and remanded for further consideration in light of its recent decision in Wakkary v. Holder.

Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's decision denying his application for cancellation of removal. At issue was whether a state court conviction for a simple-possession drug crime, later expunged by the state court, nevertheless constituted a "conviction" for federal immigration purposes. The court held that the constitutional guarantee of equal protection did not require treating, for immigration purposes, an expunged state conviction of a drug crime the same as a federal drug conviction that had been expunged under the Federal First Offender Act, 18 U.S.C. 3607(b). Therefore, the court overruled its holding to the contrary in Lujan-Armendariz v. INS. The court also held that, in light of the equities and other considerations, the court would apply this new rule only prospectively. Accordingly, the court held that the BIA did not err and affirmed the judgment.

Petitioner, a native and citizen of China, petitioned for review of a final order of removal by the BIA where the BIA denied petitioner's applications for asylum and withholding of removal because it concluded that he had failed to establish that his past mistreatment was on account of a protected ground and where the BIA also denied petitioner's application for protection under the Convention Against Torture (CAT). The court found that the BIA ignored the anti-government political opinions Chinese officals imputed to petitioner as a motivating factor for their abuse, and erroneously concluded that his pro-labor activities did not constitute an expression of a political opinion. Further, the IJ's conclusion that the Chinese officials mistreated petitioner because of legitimate prosecution was not supported by substantial evidence. Therefore, the court granted the petition for review and reversed the BIA's finding that petitioner had not established a nexus to a protected ground where any reasonable fact-finder would be compelled to conclude that the past mistreatment petitioner suffered was on account of a protected ground. The court remanded to the BIA to determine whether petitioner had established past persecution or a well-founded fear of future persecution, with instructions to provide a more reasoned explanation of its decision on his CAT claim.