Justia Immigration Law Opinion Summaries

Defendant filed a motion for acquittal where he was convicted for being an alien who reentered the United States after previously being deported. At issue was whether the district court properly instructed the jury that there was a presumption of defendant's alienage and that the burden of proof was shifted to defendant to establish that he had obtained American citizenship by having been born to a U.S. citizen father. The court held that defendant faced no burden to claim derivative citizenship in an effort to negate the government's charge that he was an alien. The court also held that the government did not have the burden of disproving each element of derivative citizenship but needed only to prove that "alienage" was among the elements of the crime. The court further held that it was possible that a rational trier of fact could consider the evidence of defendant's father's citizenship, determine that defendant might meet the requirements for derivative citizenship, but then concluded beyond a reasonable doubt that, based on his actions and admissions, he was not actually an American citizen. Therefore, the court affirmed the denial of defendant's motion to acquit and allowed for the possibility of retrial on remand.

Petitioner, a native and citizen of Mexico, petitioned for review of a decision of the Board of Immigration Appeals ("BIA") dismissing an appeal from an order of removal to Mexico. At issue was whether the government failed to meet its burden of proving that petitioner was removable where the BIA and the Immigration Judge ("IJ") were not permitted to rely on his counsel's admissions that he had been previously convicted of possession of cocaine for sale in 1997; whether a criminal docket from his 1997 conviction that was introduced into evidence by the government was sufficient to establish that he was removable where the document did not indicate what substance he possessed for sale; whether the government was estopped from removing him on the basis of his 1997 conviction where it knew about the conviction when it granted him Legal Permanent Resident ("LPR") status in 2003; and whether he was eligible for waiver of inadmissibility where his 1997 conviction predated his admission as an LPR in 2003. The court held that petitioner was removable when he admitted at the pleading stage that he was convicted of cocaine for sale; petitioner relieved the government of its burden of offering evidence to prove that he was removable; the government was not estopped by its error in granting him LPR status from correcting its mistake and ordering his removal, and petitioner's admission to the cocaine offense made him ineligible for a waiver of removability.

Defendant appealed a conviction for illegally reentering the United States following removal where he was arrested by a police officer, gave the officer a false name and false driver's license, and was arrested for driving under the influence of alcohol. At issue was whether the admission into evidence of a certificate of non-existence of record ("CNR") and certain documents from defendant's Alien Registration File ("A-file") violated his rights under the Sixth Amendment's Confrontation Clause; whether the admission of testimony from an A-file custodian regarding the absence of any record of defendant applying for permission to reenter violated the Best Evidence Rule; whether defendant's sixteen-level enhancement to his Sentencing Guidelines base offense level imposed for a prior assault with a deadly weapon qualified as a crime of violence; and whether defendant's prior felony conviction should be found by the jury before subjecting him to a greater maximum sentence in light of Nijhawan v.Holder. The court held that defendant's Sixth Amendment rights were not violated where admission of the CNR was harmless and where admission of the A-file was not testimonial in nature. The court also held that the Best Evidence Rule was not violated where the evidence at issue was in regards to the absence of records and where the evidence at issue was public records that were self-authenticating. The court further held that the sixteen-level enhancement was properly imposed where a prior conviction for assault with a deadly weapon qualified as a crime of violence. The court finally held that defendant's Sixth Amendment right to a jury trial was not violated where Nijhawan merely provided dicta and Almendarez-Torres v. United States continued to be binding authority.

Petitioner, a native and citizen of Mexico, appealed a decision of the Board of Immigration Appeals ("BIA") affirming the denial of his application for asylum, withholding of removal, and relief under the Convention against Torture. At issue was whether petitioner had experienced past persecution in Mexico as a homosexual male when he contracted HIV while living in California, traveled back to Mexico for two weeks, and then reentered the United States where he turned himself in to immigration authorities and requested asylum. The court held that there was substantial evidence that supported the BIA's decision where petitioner failed to demonstrate past persecution or a well-founded fear of future persecution on account of his homosexuality or HIV positive-status when the sexual abuse petitioner suffered was not inflicted by government actors and when the BIA had sufficient basis to conclude that petitioner failed to show that the government was unable or unwilling to control his attackers.

The United States sued the State of Arizona in federal district court alleging that S.B. 1070, which established a variety of immigration-related state offenses and defined the immigration-enforcement authority of Arizona's state and local law enforcement officers, violated the Supremacy Clause on the grounds that it was preempted by the Immigration and Nationality Act ("INA") and that it violated the Commerce Clause. At issue was whether the district court's grant of the United State's motion for a preliminary injunction in part, enjoining S.B. 1070 sections 2(B), 3, 5(C), and 6, was an abuse of discretion. The court held that the United States had met its burden of showing that there was likely no set of circumstances under which S.B. 1070 sections 2(B), 3, 5(C), and 6 would be valid and that they were likely to succeed on the merits of their challenge. The court also held that the district court did not abuse its discretion by enjoining S.B. 1070 sections 2(B), 3, 5(C), and 6 where the United States demonstrated that it faced irreparable harm and that granting the preliminary injunction properly balanced the equities and was in the public interest.

Petitioner appealed a final removal order issued by the Board of Immigration Appeals ("BIA") which determined that petitioner was ineligible for adjustment of status under 8 U.S.C. 1255(i). At issue was whether the interpretation of section 1182(a)(9)(C)(i)(I) and 8 U.S.C. 1255(i) in Acosta v. Gonzales had precedence over the BIA's subsequent and contrary reading in Matter of Briones. Also at issue was whether the BIA, if Briones was controlling, impermissibly applied it to petitioner. Further at issue was whether the Attorney General exceeded his authority by promulgating 8 C.F.R. 1240.26(i), which terminated a grant of voluntary departure upon the filing of a petition for review of a final removal order. The court held that the BIA's decision in Briones addressed a statutory ambiguity and was entitled to Chevron deference and that petitioner was inadmissible under 8 U.S.C. 1182(9)(C)(i)(I), was not subject to the exception in section 1182(a)(9)(C)(ii), and not eligible for adjustment under section 8 U.S.C. 1255(i). The court also held that the BIA properly applied its decision in Briones to petitioner where, under Chevron and Brand X, the BIA had authority to offer authoritative constructions of immigration provisions. The court further held that 8 C.F.R. 1240.26(i) was a proper exercise of the Attorney General's authority and there was no need to inquire further into the reasonableness of the regulation.

Petitioner, a native and citizen of Mexico, petitioned for a review of the decision by the Board of Immigration Appeals affirming a final order of removal, denying her claims for asylum and withholding of removal where her asylum application was time-barred when it was filed more than six years after she entered the United States. At issue was whether applying the one year filing deadline to petitioner's asylum application was a violation of the Equal Protection Clause. Also at issue was whether domestic abuse that occurred in the United States constituted past persecution. The court held that the government's treatment of petitioner was rationally related to a legitimate government purpose and therefore not in violation of the Equal Protection Clause where the time bar applied to late applications, like petitioner's, would still need to be filed during the first year and where the time bar helped identify legitimate claims, provided a fixed cut-off date for filings, served as a limitation on the number of applicants, and reduced abuse of the system. The court also held that domestic violence that occurred in the United States did not constitute past persecution where it was not "in the proposed country of removal" under 8 C.F.R. 1208.16(b)(1)(i).

Defendant appealed his conviction for attempted entry after deportation on the ground that the district court failed to inform him of the immigration consequences of his plea during the plea colloquy. At issue was whether the district court erred in failing to advise defendant of the immigration consequences of his plea in light of United States v. Amador-Leal. The court held that petitioner had not demonstrated the probability of a different result and thus could not show that the district court's action affected his substantial rights where he failed to assert on appeal that he would not have entered the plea but for the district court's alleged error.

Petitioner appealed the Board of Immigration Appeals ("BIA") decision affirming a finding that his alien transportation conviction in 1984 constituted an aggravated felony and he was therefore ineligible for relief in the form of cancellation of removal. Petitioner also appealed the BIA's dismissal of his motion to reopen and reconsider his guilty plea to the controlled substance charge that resulted in his conviction where he was not adequately informed of the immigration consequences of his plea. At issue was whether petitioner was properly found removable due to his 1984 conviction and therefore ineligible for cancellation of removal. Also at issue was whether the BIA had jurisdiction to review a motion to reconsider and reopen filed after a petitioner had been involuntarily removed from the United States. The court remanded and held that until the BIA determined that petitioner's conviction was not vacated on the merits, petitioner was not properly found removable under the Immigration and Nationality Act on a ground separate and distinct from a pre-1998 aggravated felony conviction. The court also held that the physical removal of petitioner from the United Stated did not preclude him from pursuing a motion to reopen where Congress made clear in passing the Illegal Immigration Reform and Immigration Responsibility Act of 1996 that Congress anticipated that petitioners would be able to pursue relief after departing from the United States.

The government petitioned for rehearing where petitioner was removed in absentia when he did not know about his removal proceeding hearing because he had moved from his previous address and failed to advise his new lawyer and the immigration court of his whereabouts. At issue was whether the court's original opinion constituted a departure from Ninth Circuit precedent and interpreted too broadly the "exceptional circumstances" safe harbor for aliens removed in absentia. The court granted the petition for rehearing and dismissed the petition for review where petitioner did not demonstrate the diligence necessary for a finding of exceptional circumstances and where there did not exist in the record any likelihood of relief.