Articles Posted in U.S. Court of Appeals for the Tenth Circuit

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Francisco Flores-Molina was an undocumented alien subject to removal from the United States. An immigration judge determined he was ineligible for cancellation of removal because he has been convicted of a “crime involving moral turpitude.” The Board of Immigration Appeals agreed and dismissed Flores-Molina’s appeal. Flores-Molina then appealed to the Tenth Circuit, arguing the Board of Immigration Appeals erred in finding that his crime of conviction under Denver Municipal Code 38-40 (giving false information to a city official during an investigation), was a crime involving moral turpitude. The Tenth Circuit agreed, granted the petition and remanded for further proceedings. View "Flores-Molina v. Sessions" on Justia Law

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Split Rail Fence Company, Inc., a Colorado business that sold and installed fencing materials, petitions for review of an administrative law judge’s (“ALJ”) summary decision. The decision imposed civil penalties on Split Rail for violating the Immigration Reform and Control Act (“IRCA”) by: (1) “hir[ing] for employment in the United States an individual without complying with the requirements of subsection (b)” of 8 U.S.C. 1324a in violation of section 1324a(a)(1)(B) (Count One); and (2) “continu[ing] to employ [an] alien in the United States knowing the alien is (or has become) an unauthorized alien” in violation of section 1324a(a)(2) (Count Two). ICE special agents conducted an inspection at Split Rail in 2009 and 2011 to determine its compliance with the IRCA. During the inspection, it examined Split Rail’s I-9 forms. ICE served Split Rail with an Notice of Intent to Fine (NIF), commencing this administrative proceeding against Split Rail. Split Rail management stated it “had absolutely no reason to believe either now or at any time in the past that any of [nine individuals identified as ‘current employees’ in the 2011 Notice of Suspect Documents] are anything but law abiding residents of the United States of America.” Split Rail noted many of them were long-term employees who, along with their families, had been involved in company activities, parties, and picnics. He further stated they each appeared authorized to work in the United States because they had bank accounts, cars, homes, and mortgages. He also noted many had valid driver’s licenses and some had filed successful workers’ compensation claims. He did not, however, state that Split Rail had taken any action regarding the employees’ I-9 forms. In 2012, ICE filed its complaint against Split Rail. The ALJ granted ICE summary decision on both counts. Split Rail timely filed its petition for review, but finding no reversible error as to the ALJ's decision, the Tenth Circuit denied Split Rail’s petition. View "Split Rail Fence Co. v. United States" on Justia Law

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Ting Xue, a native and citizen of China, applied to the Tenth Circuit for review of a Board of Immigration Appeals (“BIA”) order affirming the denial of his petition for asylum, withholding of removal and protection under the Convention Against Torture ("CAT"). Xue claimed he was persecuted in his native China for his religious beliefs. He was smuggled to North America, ultimately entering the United States illegally through Mexico in July 2008. The IJ concluded Xue’s treatment at the hands of Chinese authorities before he came to the United States was not sufficiently severe to amount to past persecution. After review, the Tenth Circuit found that the BIA correctly concluded that because Xue failed to show a reasonable possibility of future persecution, he necessarily failed to meet the higher burden required for withholding of removal under the Immigration and Nationality Act. Furthermore, the Court found the BIA correctly concluded that Xue failed to show his eligibility for relief under the CAT. With nothing more, the Court denied Xue's petition for review. View "Xue v. Lynch" on Justia Law

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Danijela and Aleksandar Mojsilovic appealed the dismissal of their damages claim under the Trafficking Victims Protection Reauthorization Act (TVPRA). The Mojsilovics are Serbian scientists recruited and hired by the University of Oklahoma to serve as research assistants at the University’s Health Sciences Center. In that capacity, Aleksandar was hired to conduct DNA sequencing and tissue typing for research and clinical studies; Danijela was hired to make transfectants and tissue cultures. The Mojsilovics were retained by the University through the H-1B visa program, and they were supervised by Dr. William Hildebrand, the director of the medical research laboratory at the Health Sciences Center. Dr. Hildebrand also owned a biotechnology company called Pure Protein, which, through a contractual arrangement, shares the University’s facilities to perform similar work. According to the Mojsilovics, shortly after they were hired, Dr. Hildebrand demanded that they also work for Pure Protein. He allegedly required them to work longer hours than permitted by their visa applications, without pay, and threatened to have their visas revoked if they objected. Dr. Hildebrand became verbally abusive at times, and because he was authorized to make hiring and firing decisions, the Mojsilovics claimed they feared he would take action against their immigration status if they did not comply with his demands. The Mojsilovics eventually filed suit, naming the University, Dr. Hildebrand, and Pure Protein as defendants. With respect to claims against the University, the district court dismissed the Mojsilovic’s claims as barred by sovereign immunity. Finding no error in that decision, the Tenth Circuit affirmed. View "Mojsilovic v. Board of Regents University of Oklahoma" on Justia Law

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Brayan Alexis Osuna-Gutierrez was arrested in Kansas. He was a passenger in a rental vehicle on a cross-country trip. The police found approximately seven grams of marijuana belonging to Gutierrez that he had legally purchased in Colorado. Police also found approximately three kilograms of methamphetamine in the rear portion of the car. The government charged Gutierrez and his co-defendants with possession with intent to distribute methamphetamine. Gutierrez ultimately pled guilty to “Possession of Marijuana with Intent to Distribute" (the government dropped the methamphetamine charges). The district court sentenced him to time served, approximately seven months. After leaving jail, Gutierrez was immediately transferred to immigration custody and served with Notice of Intent to Issue a Final Administrative Removal Order (the expedited removal process). During the removal process, an officer within DHS concluded that Gutierrez was not a legal permanent resident, having come to the United States from Mexico with his mother when he was one year old without being legally admitted. Further, Gutierrez had pled guilty to an aggravated felony. Gutierrez timely petitioned for review of his removal and was deported back to Mexico. Gutierrez argued his deportation was improper because: (1) the Department of Homeland Security’s (DHS) expedited removal process is illegal; and (2) in any event, it was improper for DHS to use the expedited removal process on Gutierrez because he pled guilty to a misdemeanor, not a felony. The Tenth Circuit found Gutierrez was wrong on both counts, and denied Gutierrez's petition for review. View "Osuna-Gutierrez v. Johnson" on Justia Law

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Petitioner Constantine Golicov, a lawful permanent resident of the United States, sought review of a Board of Immigration Appeals (BIA) order concluding that his Utah state conviction for failing to stop at a police officer’s command rendered him removable under the Immigration and Nationality Act (INA). The specific provision of the INA that served as grounds for removal provided that an alien is subject for removal if that person commits an "aggravated felony." The INA defined the term "aggravated felony" to include "crimes of violence." Petitioner argued to the Tenth Circuit that "crime of violence" was unconstitutionally vague. After review of the Supreme Court precedent of "Johnson v. United States," (135 S. Ct. 2551 (2015)), and applying that case to the facts of this case, the Tenth Circuit agreed with petitioner that the INA's term was indeed vague. The order of removal was vacated and the case remanded for further proceedings. View "Golicov v. Lynch" on Justia Law

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Hugo Gutierrez-Brizuela applied for adjustment of status in reliance on the Tenth Circuit's decision in "Padilla-Caldera I" in the period it was valid law. Gutierrez-Brizuela applied for relief during the period after the BIA’s announcement of its contrary interpretation in "Briones" yet before "Padilla-Caldera II" declared "Briones" controlling and "Padilla-Caldera I" effectively overruled. The BIA suggested this factual distinction made all the legal difference. "But we fail to see how. Indeed, the government’s position in this appeal seems to us clearly inconsistent with both the rule and reasoning of De Niz Robles." In 2009 the law expressly gave Gutierrez-Brizuela two options: he could seek an adjustment of status pursuant to "Padilla-Caldera I" or accept a ten-year waiting period outside the country. "Relying on binding circuit precedent, he chose the former path. Yet the BIA now seeks to apply a new law to block that path at a time when it’s too late for Mr. Gutierrez-Brizuela to alter his conduct. Meaning that, if we allowed the BIA to apply Briones here, Mr. Gutierrez-Brizuela would lose the seven years he could’ve spent complying with the BIA’s ten year waiting period and instead have to start that waiting period now. The due process concerns are obvious: when Mr. Gutierrez-Brizuela made his choice, he had no notice of the law the BIA now seeks to apply. And the equal protection problems are obvious too: if the agency were free to change the law retroactively based on shifting political winds, it could use that power to punish politically disfavored groups or individuals for conduct they can no longer alter." This case was remanded back to the BIA for reconsideration of Gutierrez-Brizuela's application based on the law in effect at the time of his application. View "Gutierrez-Brizuela v. Lynch" on Justia Law

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Defendant-appellant Hiram Marceleno pleaded guilty to one count of reentry of a removed alien. In this direct appeal, Marceleno claimed the district court erred by denying his request to withdraw his guilty plea. Finding no reversible error, the Tenth Circuit affirmed the denial. View "United States v. Marceleno" on Justia Law

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Petitioner Kyaw Myat Htun was a citizen of Burma who has lived in the United States for several years and sought asylum and other forms of relief that would allow him to remain in the country. The immigration judge (IJ) initially granted Htun’s asylum application but later reopened the removal proceedings and denied the application. Based on newly discovered evidence, the IJ concluded Htun lacked credibility and the circumstances did not warrant an exercise of discretion in favor of Htun’s application. The Board of Immigration Appeals (BIA) affirmed the IJ’s ruling and dismissed Htun’s appeal. Htun petitioned the Tenth Circuit Court of Appeals for review of the BIA’s decision. Finding "substantial evidence supporting the BIA's decision that Mr. Htun is not eligible for withholding of removal," the Tenth Circuit affirmed the Board's decision. View "Htun v. Lynch" on Justia Law

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Defendant Adan Humberto Dominguez-Rodriguez pleaded guilty to one count of illegally reentering the United States after having previously been deported. Prior to sentencing, the probation office recommended that the district court impose a sixteen-level enhancement to Dominguez-Rodriguez’s base offense level because Dominguez-Rodriguez was previously deported after having been convicted in federal court of possession with intent to distribute methamphetamine. Dominguez-Rodriguez objected to the proposed sixteen-level enhancement. At sentencing, the district court sustained Dominguez-Rodriguez’s objection, imposed an eight-level enhancement, and sentenced Dominguez-Rodriguez to six months’ imprisonment. The government appealed, arguing that the district court erred in failing to impose the sixteen-level enhancement. After review of the parties' arguments on appeal ,the Tenth Circuit agreed with the government and consequently remanded this case with instructions to vacate Dominguez-Rodriguez’s sentence and resentence. View "United States v. Dominguez-Rodriguez" on Justia Law