Justia Immigration Law Opinion Summaries

Petitioner, a Honduran national, appealed the denial of his petition for a writ of habeas corpus. This appeal involved the constitutional separation of powers and the limited judicial role in the extradition of a foreign national. On appeal, petitioner contended that the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment barred his extradition by the Secretary of State, that the murder of the victim constituted a political offense for which he could not be extradited, and there was no valid extradition treaty in force between Honduras and the United States. The court held that petitioner's first argument was not ripe because the Secretary of State has not yet determined whether he was likely to be tortured nor decided whether to extradite him, and his other arguments lacked merit. Accordingly, the court vacated in part and affirmed in part the denial of petitioner's petition for a writ of habeas corpus, lifted the stay of the extradition proceedings, and remanded with instructions to dismiss petitioner's claim under the Convention Against Torture. View "Meza v. U.S. Attorney General, et al." on Justia Law

On January 4, 2010, an immigration judge (IJ) denied Petitioner's application for asylum, withholding of removal, and withholding under the Convention Against Torture. The board of immigration appeals (BIA) affirmed this denial on September 8, 2011. Petitioner petitioned for review of the BIA's decision. The First Circuit Court of Appeals denied the petition, holding that the IJ and BIA did not err by (1) concluding that Petitioner's past treatment on Ukraine did not rise to the level of persecution; and (2) concluding that Petitioner had failed to establish the requisite objective basis that a reasonable person in her circumstances would fear persecution. View "Rebenko v. Holder" on Justia Law

Petitioner, a Mexican citizen, petitioned for review of the BIA's decision that he was not eligible for waiver of inadmissibility because he was convicted of an aggravated felony. The court concluded that the crime of sexual battery under California law was categorically broader than the federal generic crime of "sexual abuse of a minor" because the California crime could be committed against a victim of any age, while the federal generic offense required proof that the victim was a minor. The court also concluded that none of the evidence the court was permitted to consider under the modified categorical approach established that petitioner's victim was a minor. Therefore, the court granted the petition and remanded the matter to the BIA. View "Sanchez-Avalos, et al. v. Holder" on Justia Law

Petitioner Baltazar Sosa-Valenzuela illegally entered the United States from Mexico in 1981 at the age of three, and became a lawful permanent resident in 1992. In 1994, when he was sixteen, he shot and seriously injured a gang member. He pled guilty to attempted murder in the second degree and to unlawful possession of a firearm by a juvenile. After a successful post-conviction ineffectiveness of counsel petition, the state district court amended Petitioner's guilty plea to first degree assault and crime of violence with a deadly weapon. In 1996, while Petitioner was in juvenile detention, the Immigration and Naturalization Service issued a show cause order, charging Petitioner as deportable because of his criminal conviction. The immigration proceedings were then delayed for several years, while Petitioner was released and successfully completed his parole. Petitioner conceded deportability but requested a section 212 waiver which was then available as a form of discretionary relief under federal law and an adjustment of status. Both forms of relief were granted by the IJ and then denied by the BIA. Petitioner appealed the BIA's decision and order of deportation on three grounds: (1) the procedural regularity of the BIA decision as a collateral attack on the IJ's waiver decision; (2) the merits of the BIA's decision to reverse the IJ's waiver, arguing that it conflicted with the Supreme Court's decision in "Judulang v. Holder," (132 S. Ct. 476 (2011)); and (3) the BIA abused its discretion in denying him an adjustment of status based on his marriage to an American citizen. Upon review, the Tenth Circuit found the BIA was not precluded from reviewing the IJ's waiver decision, but we must remand to the BIA so that it may evaluate its decision in light of the Supreme Court's ruling in "Judulang." The Court affirmed the BIA's discretionary denial of adjustment of status. View "Sosa-Valenzuela v. Holder, Jr." on Justia Law

Petitioner, a Philippine citizen, petitioned for review of a BIA decision declaring him ineligible for relief under former section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. 212(c), on the ground that he had served a "term of imprisonment" of over five years for conviction of an aggravated felony. Petitioner contended that the BIA improperly included in his "term of imprisonment" the entire period that he spent in psychiatric pre-trial civil confinement pending a determination of his competence to stand trial. Because the court could not confidently approximate how much time petitioner would have actually served in prison had he never spent time in pre-trial psychiatric confinement, the court granted the petition for review and remanded for a determination of the amount of constructive good time credit to which he was entitled for the period of his civil confinement. View "Corpuz v. Holder Jr." on Justia Law

Duran, a native of the Dominican Republic, was admitted to the U.S. as a legal permanent resident in 1981. He married in 1988 and fathered two children. In 1997 he applied for naturalization. He completed his examination under oath. When a final decision did not come in the mail, Duran made repeated calls to the agency, attempting to be scheduled to take the Oath. Nearly ten years later, he pled guilty to conspiracy to distribute and possess narcotics and possession with intent to distribute cocaine and was sentenced to 51 months’ imprisonment. The government instituted removal proceedings under 8 U.S.C. 1227(a)(2)(B)(i) and 8 U.S.C. §1227(a)(2)(A)(iii). Although he did not challenge the convictions, he argued that he was not removable because his 1997 naturalization application had been finalized. He also argued that he should not be removed because the government’s loss of his file precluded him from taking the Oath and thereby prevented his naturalization and citizenship. Meanwhile, the government denied his naturalization based on his 2008 convictions The Immigration Judge ordered him removed to the Dominican Republic. The BIA dismissed Duran’s appeal. The Third Circuit denied appeal. View "Duran-Pichardo v. Attorney Gen. of the U.S." on Justia Law

Liu, a 50-year-old citizen of China, came to the U.S. in 2000 on a nonimmigrant visa, after protesting the loss of his job at a state-owned factory. He overstayed and, in removal proceedings, requested asylum, withholding of removal, and relief under the United Nations Convention Against Torture. He testified that he was persecuted after protesting layoffs and was beaten in jail. He claimed that officials told his wife that he would face “serious consequences” if he continued to make trouble. He stated that he never belonged to any political organization in China or the United States and acknowledged that he “didn’t do anything to protest or criticize the government of China.” The Board of Immigration Appeals upheld the decision, denying relief and ordering removal. The Seventh Circuit affirmed. View "Liu v. Holder" on Justia Law

Tapia entered the U.S. illegally in 1992. He was removed to Mexico in 1997 following conviction for a hit-and-run accident. Tapia did not seek review, but reentered illegally and was again removed. He reentered again and DHS reinstated the 1997 removal order in 2010. Tapia contended that the 1997 order was invalid because he did not receive proper notice of his right to counsel and because his convictions did not meet the statutory definition of aggravated felonies. The Seventh Circuit rejected the claims as untimely and held that it lacked jurisdiction to review the agency’s decision to execute a removal order. Tapia filed a motion to reopen, which was rejected, and the Seventh Circuit dismissed for lack of jurisdiction. Changing the caption on the document from “motion for stay” to “motion to reopen” does not create a right of judicial review. The only thing that a court of appeals could review would be the original removal order and that review must be sought within 30 days of the order’s reinstatement. Tapia missed the deadline. View "Lemos v. Holder" on Justia Law

Medina first entered the U.S. illegally, at age 16, in 1982. He was deported after two 1989 convictions, one for selling or transporting cocaine and the other for attempted robbery. He returned and was convicted of illegal reentry and again deported. He entered unlawfully a third time and was convicted of being found in the United States in violation of 8 U.S.C. 1326(a). He appealed the 37-month sentence he received, contending that he should not have received a sixteen-level enhancement for being deported after a felony conviction for a “drug trafficking offense” where the imposed sentence exceeded 13 months or after a felony “crime of violence.” Medina argued that his 1989 convictions did not fall within those definitions under the 1989 edition of the United States Sentencing Guidelines and so the enhancement does not apply. The Seventh Circuit affirmed; the crimes qualify under the 2010 Sentencing Guidelines, which were the guidelines in effect at the time of Medina’s sentencing. View "United States v. Medina" on Justia Law

Petitioner, a native and citizen of Albania, sought review of an order of removal by ICE. Petitioner entered the United States through the Visa Waiver Program (VWP), using a fraudulent Italian passport. The court held that petitioner knowingly and voluntarily waived her right to contest her removal on any basis other than asylum, and having participated in her asylum-only proceeding, petitioner could not contest removal on the ground that she filed an adjustment of status application after she overstayed the time she was authorized to be in this country. The court concluded that a VWP participant could not contest his or her removal on the basis of an adjustment of status application filed after the 90-day period during which a VWP participant could stay in the country. View "Gjerjaj v. Holder" on Justia Law