Articles Posted in US Court of Appeals for the Tenth Circuit

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Manuel Chavez-Morales appeared before the district court following his fifth conviction for an illegal reentry offense. At sentencing, he argued that higher wages in the United States motivated his decision to illegally reenter the United States. Focusing heavily on Chavez-Morales’s criminal history and noting that none of the earlier sentences deterred Chavez-Morales from reoffending, the district court imposed an upward variant sentence of thirty-six months’ imprisonment. The district court also imposed a three-year term of supervised release. On appeal, Chavez-Morales challenged the procedural reasonableness of his term of imprisonment. Specifically, he argued the district court did not meaningfully consider his argument that economic opportunities motivated his decision to illegally reenter the United States and thereby mitigated the seriousness of his offense. Furthermore, Chavez-Morales argued the district court committed plain error by imposing a term of supervised release without acknowledging or considering United States Sentencing Guidelines Manual (U.S.S.G.) section 5D1.1(c), which stated a court “ordinarily” should not impose a term of supervised release when “the defendant is a deportable alien who likely will be deported after imprisonment.” The Tenth Circuit affirmed the district court. With respect to the prison term, the Court found the transcript of the sentencing hearing established that, on three occasions, the district court addressed the economic motivation argument. As to the imposition of a term of supervised release, while the district court erred by not acknowledging and considering U.S.S.G. 5D1.1(c), Chavez- Morales did not carry his burden on the third prong of the plain error analysis. View "United States v. Chavez-Morales" on Justia Law

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Alejandro Lujan Jimenez petitioned for review a final order of removal and an order by the Bureau of Immigration Appeals (“BIA”) declining to sua sponte reopen removal proceedings. Lujan is a native and citizen of Mexico. He first entered the United States as a child sometime in the 1990s. His most recent entry into the United States occurred in May 2004. In January 2007, Lujan pled guilty in Colorado state court to Criminal Trespass of a Motor Vehicle with the Intent to Commit a Crime Therein, and sentenced to 35 days in jail. The Department of Homeland Security filed a notice charging Lujan as removable. He received three continuances of removal proceedings until April 2009 when he conceded removability. Lujan then applied for adjustment of status and cancellation of removal. He obtained four additional continuances of his removal proceedings. Lujan appeared in immigration court on June 5, 2013, and the IJ granted counsel’s motion to withdraw. Lujan stated that he was attempting to obtain new counsel, but proceeded pro se at the hearing. The IJ denied relief, concluding that Lujan was ineligible for adjustment of status based on his immigration history and that he was ineligible for cancellation of removal because he had been convicted of a crime involving moral turpitude—his criminal trespass offense in Colorado. Lujan appealed to the BIA, arguing that the IJ’s denial of a continuance violated his right to due process and that his Colorado conviction was not a crime involving moral turpitude. The BIA affirmed the IJ’s ruling. Lujan then filed an untimely petition for review, which was dismissed. The Tenth Circuit determined it lacked jurisdiction over petition number 17-9527: review of the BIA’s decision declining to sua sponte reopen his removal proceedings. The Court has previously held that “we do not have jurisdiction to consider [a] petitioner’s claim that the BIA should have sua sponte reopened the proceedings . . . because there are no standards by which to judge the agency’s exercise of discretion.” View "Lujan-Jimenez v. Sessions" on Justia Law

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Petitioner-Appellant Azael Bedolla-Zarate, a native and citizen of Mexico, petitioned the Tenth Circuit for review of a Department of Homeland Security (DHS) Final Administrative Removal Order (FARO) based upon his having been convicted of an aggravated felony. Bedolla-Zarate was convicted of third-degree sexual abuse of a minor in Wyoming state court in September 2016. He contended that his conviction did not qualify as an aggravated felony. The Tenth Circuit found a person convicted under the Wyoming sexual abuse of a minor statute necessarily has committed sexual abuse of a minor under the INA, therefore DHS properly issued a FARO against Bedolla-Zarate for committing an aggravated felony under the INA. The Court denied review. View "Bedolla-Zarate v. Sessions" on Justia Law

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Defendant Magdiel Sanchez-Urias pleaded guilty to illegally reentering the country after being deported. The court imposed a sentence that included a $1,000 fine. Defendant appealed, arguing that he could not afford the fine. After review, the Tenth Circuit affirmed: defendant bore the burden to show that he lacked the assets to pay the fine. But he refused to provide financial information at his presentence interview, and the district court did not clearly err in finding on the record before it that Defendant had not established his inability to pay. View "United States v. Sanchez-Urias" on Justia Law

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Abraham Gonzalez-Alarcon filed a habeas petition alleging specific facts which, if proven, would have demonstrated he was a United States citizen. He sought release from custody from Immigration and Customs Enforcement (“ICE”) following ICE’s reinstatement of a prior order of removal on that basis. Dismissing Gonzalez-Alarcon’s petition, the district court concluded that he was required to exhaust administrative remedies, jurisdiction was barred by the REAL ID Act, and the petition for review process was an adequate substitute for habeas such that the REAL ID Act’s jurisdiction-stripping provisions do not offend the Suspension Clause. After review, the Tenth Circuit concluded the exhaustion provision at issue did not govern facially valid citizenship claims; that subsection applies only to aliens. And because district courts had jurisdiction to determine their own jurisdiction, the Tenth Circuit held a court must first consider whether a petitioner was in fact an alien before requiring exhaustion. Furthermore, the Court held the REAL ID Act’s jurisdiction-stripping provisions raised serious Suspension Clause concerns in one limited context: with respect to a United States citizen subject to a reinstated order of removal for whom the deadline to seek judicial review has passed, the REAL ID Act appeared to bar federal court review. “These restrictions would effectively strip citizenship from those who do not clear various procedural hurdles. Citizenship cannot be relinquished through mere neglect. . . . and ‘[t]he very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.’” Under the Suspension Clause, the Tenth Circuit held Gonzalez-Alarcon had to be granted some path to advance his facially valid claim of citizenship in federal court. Before permitting Gonzalez-Alarcon to proceed under the Great Writ, however, he should first attempt to obtain review of his citizenship claim through the REAL ID Act. View "Gonzalez-Alarcon v. Macias" on Justia Law

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Petitioner Paulo Afamasaga was a native and citizen of Samoa who entered the United States on a nonimmigrant tourist visa and remained beyond the date authorized. After he pleaded guilty to making a false statement when applying for an American passport, the Department of Homeland Security (DHS) initiated removal proceedings against him. Petitioner applied for cancellation of removal under 8 U.S.C. 1229b, but the immigration judge (IJ) deemed him ineligible on the ground that violating Section 1542 was a crime involving moral turpitude (CIMT) under the Immigration and Nationality Act (INA). The Board of Immigration Appeals (BIA) agreed and dismissed his appeal. “Exercising jurisdiction to review questions of law decided in BIA removal orders (see Flores-Molina v. Sessions, 850 F.3d 1150 (10th Cir. 2017)), the Tenth Circuit upheld the BIA’s determination that petitioner was not eligible for cancellation of removal. View "Afamasaga v. Sessions" on Justia Law

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Defendant Ortiz-Lazaro pled guilty to illegal reentry after deportation in violation of 18 U.S.C. 1326(a)(1) and (b)(1), and he admitted that he violated the supervised release terms of his prior illegal reentry charge. He appealed his above-guidelines sentence for the supervised release violation as procedurally and substantively unreasonable. In looking at the detailed explanation the district court gave for its deviation from the guidelines, the Tenth Circuit concluded the sentence was reasonable and that the district court did not abuse its discretion. View "United States v. Ortiz-Lazaro" on Justia Law

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This appeal addressed whether immigration detainees housed in a private contract detention facility in Aurora, Colorado could bring claims as a class under: (1) 18 U.S.C. 1589, a provision of the Trafficking Victims Protection Act (the “TVPA”) that prohibits forced labor; and (2) Colorado unjust enrichment law. The GEO Group, Inc. (“GEO”) owned and operated the Aurora Facility under government contract. While there, Appellees rendered mandatory and voluntary services to GEO: cleaning their housing units’ common areas and performed various jobs through a voluntary work program, which paid them $1 a day. The district court certified two separate classes: (1) all detainees housed at the Aurora Facility in the past ten years (the “TVPA class”); and (2) all detainees who participated in the Aurora Facility’s voluntary work program in the past three years (the “unjust enrichment class”). On interlocutory appeal, GEO argues that the district court abused its discretion in certifying each class under Rule 23(b)(3) of the Federal Rules of Civil Procedure. It primarily contended Appellees’ TVPA and Colorado unjust enrichment claims both required predominantly individualized determinations, making class treatment inappropriate. Finding no reversible error, the Tenth Circuit affirmed class certification. View "Menocal v. The GEO Group" on Justia Law

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The Tenth Circuit expedited consideration of this bail appeal to consider Mario Ailon-Ailon’s argument that the government has misinterpreted the word “flee” as it appeared in 18 U.S.C. 3142(f)(2), resulting in his illegal pre-trial detention. He argued that involuntary removal by the Bureau of Immigration and Customs Enforcement (“ICE”) did not constitute flight of the sort that would justify detention. On initial consideration, a magistrate judge agreed and determined that Ailon-Ailon should not have been detained before trial. On review of the magistrate judge, the district court reversed, ordering that he be detained. The Tenth Circuit concluded that the plain meaning of “flee” refers to a volitional act rather than involuntary removal, and that the structure of the Bail Reform Act supported this plain-text reading. View "United States v. Ailon-Ailon" on Justia Law

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The question presented in this appeal for the Tenth Circuit's review was whether Petitioner Juan Lucio-Rayos’s municipal theft conviction qualified as a crime involving moral turpitude (“CIMT”), which would have made him ineligible for cancellation of removal. Lucio-Rayos was convicted under a divisible municipal code provision that set forth several different theft offenses, some of which qualified as CIMTs and some of which did not. Applying a modified categorical approach, the Tenth Circuit determined it was not possible to tell which theft offense was the basis of Lucio-Rayos’s conviction. The Court held it was Lucio-Rayos’s burden to establish his eligibility for cancellation of removal, and because the record was inconclusive to this end, the Court upheld the Board of Immigration Appeals (“BIA”)’s determination that Lucio-Rayos did not show that he was eligible for cancellation of removal. Furthermore, the immigration judge (“IJ”) did not deprive Lucio-Rayos of due process by refusing to recuse from hearing his case. View "Lucio-Rayos v. Sessions" on Justia Law