Justia Immigration Law Opinion Summaries

Defendant was charged in a two-count superseding indictment with violating 18 U.S.C 1546(a) by allegedly using a fraudulent order of supervision to obtain a driver's license from the Florida Department of Highway Safety and Motor Vehicles (Florida DHSMV). Defendant moved to dismiss the superseding indictment for failing to state an offense under section 1546(a), arguing that the term "authorized stay" means "lawful presence" in the United States and that no federal statute or regulation expressly identifies an order of supervision as "evidence of authorized stay in the United States." The district court dismissed the superseding indictment after concluding that an order of supervision does not qualify as a document "prescribed by statute or regulation . . . as evidence of authorized stay . . . in the United States" as required by section 1546(a).Based on a review of the statutes and regulations, the Eleventh Circuit held that an order of supervision falls within the plain and ordinary meaning of section 1546(a)'s "other document" clause. The court explained that the Form I-220B, Order of Supervision, itself is a document prescribed by the federal immigration statutes and regulations as showing that an alien has legal permission to stay in the United States. Furthermore, separate and apart from the immigration statutes and regulations, an order of supervision is a document prescribed by certain federal entitlement regulations as evidence of legal permission to stay in the United States. The court also held that defendant's proposed statutory interpretations are not supported by section 1546's language and structure. The court explained that "authorize stay" as used in section 1546(a) is not defined by terms of art for immigration laws governing alien admissibility. Furthermore, section 1546(a)'s "other document" provision does not require an order of supervision to be expressly listed or otherwise identified as evidencing authorized stay in the United States. Accordingly, the court reversed the district court's order dismissing the superseding indictment and remanded for further proceedings. View "United States v. Ardon Chinchilla" on Justia Law

The Eleventh Circuit dismissed a petition for review of the BIA's decision affirming the IJ's order of removal because petitioner had been convicted of an aggravated felony. In this case, the IJ and BIA found that petitioner's Florida convictions for money laundering and workers' compensation fraud were aggravated felonies because each conviction involved fraud or deceit in which the amount of loss to the victim exceeded $10,000 under 8 U.S.C. 1101(a)(43)(M)(i). The court held that substantial evidence in the record, including petitioner's admission of guilt and a concomitant plea agreement, fully supports the agency's finding of the loss amount. View "Garcia-Simisterra v. U.S. Attorney General" on Justia Law

The Eleventh Circuit denied a petition for review of the BIA's determination that petitioner should be removed from the United States because he has been convicted of two or more crimes of moral turpitude under 8 U.S.C. 1227(a)(2)(A)(ii).The court held that petitioner's conviction for vehicular homicide in Florida contains the necessary mens rea to constitute a crime of moral turpitude. When a person deviates from the standard of care by operating a motor vehicle so recklessly that it is likely to cause death or great bodily harm, and, in fact, results in the killing of a human being, the court has little difficulty finding that he has exhibited the baseness in the duties owed to society that constitutes moral turpitude. Therefore, petitioner's conviction in Florida of vehicular homicide is categorically a crime involving moral turpitude, and he is removable under the controlling statute. View "Smith v. U.S. Attorney General" on Justia Law

The Eleventh Circuit denied a petition for review contending that the IJ erred by ordering petitioner removed under 8 U.S.C. 1182 for unlawfully entering the United States. Petitioner claims that her factual admissions and concession of removability were plainly contradicted by the record—which she says proves that she was lawfully admitted in 2002 on a tourist visa—and that she should not be bound by them at all. Petitioner contends that she should have been charged under 8 U.S.C. 1227 for overstaying her six-month tourist visa—not section 1182 for unlawful entry. Furthermore, she alleges that her first attorney provided ineffective assistance of counsel.The court held that petitioner failed to show the "egregious circumstances" required for her to be released from a counseled concession. In this case, petitioner failed to demonstrate that the concession was untrue or incorrect. The court accepted the Board's factual finding that after petitioner's lawful entry in 2002, she could have left and reentered the United States unlawfully on a later date, which would make both her concession and her testimony true. Furthermore, even if petitioner's concession were incorrect, she cannot show either of the two circumstances that could release her from her concession. In this case, the concession did not lead to an unjust result and she cannot show that her concession was the product of unreasonable professional judgment. Finally, the Board did not err by denying petitioner's motion to remand where the new evidence she sought to introduce on remand was not material. View "Dos Santos v. U. S. Attorney General" on Justia Law

The Eleventh Circuit denied a petition for review of the BIA's final order affirming the IJ's denial of petitioner's motion to reopen his removal proceedings. Petitioner argued that the BIA's decision conflicts with his statutory right under 8 U.S.C. 1229a(c)(7) to "file one motion to reopen proceedings." However, 8 U.S.C. 1231(a)(5) provides that if an alien illegally reenters the United States after having been removed, "the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed" and the alien "is not eligible and may not apply for any relief under this chapter."The court joined the Fifth, Seventh, and Ninth Circuits in concluding that the plain language of section 1231(a)(5) bars the reopening of a reinstated removal order following an alien's unlawful reentry into the United States. The court concluded that the facts of this case place petitioner squarely within the terms of section 1231(a)(5), and petitioner forfeited his statutory right to file a motion to reopen his removal proceedings when he illegally reentered the United States. View "Alfaro-Garcia v. U.S. Attorney General" on Justia Law

The Eleventh Circuit denied the petition for review of the BIA's final order of removal denying petitioner's application to adjust his status to lawful permanent resident based on his material support to a terrorist organization. Petitioner argued that his $100 payment to the Fuerzas Armadas Revolucionarias de Colombia was made under duress and was insignificant. The court held, however, that binding precedent, Alturo v. U.S. Att'y Gen., 716 F.3d 1310, where the BIA reasonably concluded that the statutory bar does not exempt material support provided to a terrorist organization under duress, foreclosed petitioner's duress argument. The court also held that the unambiguous text of 8 U.S.C. 1182(a)(3)(B)(iv)(VI) foreclosed petitioner's claim that the payment was insignificant. In this case, because petitioner gave money to known terrorists, he afforded "funds," and thus afforded "material support." View "Hincapie-Zapata v. U.S. Attorney General" on Justia Law

The Eleventh Circuit granted the government's unopposed motion to amend the decision, vacated the previous opinion, and issued this opinion with the government's requested amendment.After determining that it has jurisdiction to consider the petition for review, the court held that the BIA erred by retroactively applying the stop-time rule to petitioner's pre-Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) conviction. The court held that neither IIRIRA section 309(a) nor 309(c)(5) mandates retroactivity, and that the BIA's interpretation of the stop-time rule does not warrant Chevron deference. In this case, by pleading guilty, petitioner gave up constitutionally protected rights with the reasonable expectation that his resulting sentence would not affect his ability to remain present in this country. The court explained that applying the stop-time rule retroactively would add a new and unforeseen consequence to his guilty plea by rendering him ineligible for cancellation of removal. Accordingly, the court reversed the BIA's decision and remanded for further proceedings. View "Rendon v. U.S. Attorney General" on Justia Law

Petitioner sought review of the BIA's final order of removal, seeking discretionary relief under 8 U.S.C. 1255(i), which permits an alien who entered without inspection to obtain relief from removal if, among other things, the alien is the beneficiary of a labor certification. The BIA determined that petitioner was ineligible for discretionary relief. At issue is the scope of a jurisdiction-stripping provision in the Immigration and Nationality Act, 8 U.S.C. 1252(a)(2)(B), which provides that "no court shall have jurisdiction to review" "any judgment regarding the granting of relief" for certain enumerated categories of discretionary relief.The Eleventh Circuit overruled its prior precedent and held that its best interpretation of section 1252(a)(2)(B)(i) is that the court is precluded from reviewing "any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255" except to the extent that such review involves constitutional claims or questions of law. In this case, plaintiff claims that the BIA erred in its determination that he lacked the requisite subjective intent to misrepresent his citizenship status. Because such a challenge presents a factual question, the court lacked jurisdiction to review the claim under section 1252(a)(2)(B)(i). View "Patel v. United States Attorney General" on Justia Law

The Eleventh Circuit denied a petition for review of the BIA's decision denying petitioner's claims for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The court held that petitioner is not eligible for asylum where substantial evidence supports the BIA's conclusion that the Sri Lankan army's alleged treatment of petitioner was not on account of a protected ground -- his imputed political opinion and his Tamil ethnicity -- but rather because of his possible involvement with a terrorist organization.The court also held that substantial evidence supports the BIA's conclusion that petitioner's fear of future persecution was not objectively reasonable because he did not show that the Sri Lankan government would target him or that the Sri Lankan government routinely persecutes Tamils. The court disagreed with the Ninth Circuit that the degree to which a group is disfavored alters an applicant's burden to establish either an individualized risk or a pattern or practice of persecution. Accordingly, the court held that the agency did not err by failing to analyze petitioner's well-founded fear of future persecution claim under the "disfavored group" test. Finally, the court upheld the BIA's finding that petitioner did not qualify for withholding of removal pursuant to the CAT. View "Lingeswaran v. U.S. Attorney General" on Justia Law

Approximately 25 years after his guilty plea to resisting a police officer with violence, an IJ found petitioner removable and ruled he was no longer eligible for cancellation of removal on account of the stop-time rule.The Eleventh Circuit held that it was error to retroactively apply the stop-time rule to petitioner's pre-Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) conviction. The court found no clear congressional statement that the stop-time rule should be applied retroactively to pre-IIRIRA plea agreements like petitioner's and held that in the circumstances presented here—specifically, where petitioner's pre-IIRIRA plea agreement did not render him immediately deportable—applying the stop-time rule to his 1995 conviction would have an impermissibly retroactive effect. Therefore, the court reversed the BIA's decision and remanded for further proceedings. View "Rendon v. U.S. Attorney General" on Justia Law