Justia Immigration Law Opinion Summaries

Defendant Armando Ramos attacked the legal validity of his sentence for receipt of child pornography. Defendant was indicted by a federal grand jury in Kansas on two counts relating to the receipt and possession of child pornography. The charges arose out of an investigation that began with a tip from German authorities who were "policing the [e]Donkey peer-to-peer file sharing network and observed a known child pornography file available for download" at an IP address that was later traced by Immigrations and Customs Enforcement (ICE) to Defendant. ICE executed a search warrant at Defendant's home, seizing multiple computers, hard drives, DVDs, and CDs containing thousands of images and videos of child pornography. During the search, an investigator interviewed Defendant who then admitted to being the sole user of the computers in his home, and to using eMule, the "specific program that . . . access[es] the [e]Donkey network," as a vehicle for obtaining child pornography. On appeal, Defendant raised multiple objections to his presentencing report (PSR). He also raised an issue that the mandatory-minimum provision of 18 USC 2252(b)(1) was unconstitutional. Upon review, the Tenth Circuit rejected Defendant's challenge to the sentence he received, and concluded that that he could not establish that his sentence was affected by application of the mandatory minimum of 18 USC 2252(b)(1). View "United States v. Ramos" on Justia Law

Petitioner, a lawful permanent resident, petitioned for review of a decision of the BIA that vacated an immigration judge's decision that he was eligible for a hardship waiver under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. 1182(h). The IJ had determined that petitioner was eligible for a hardship waiver based on a misreading of the court's decisions in Lanier v. United States Attorney General. Petitioner argued that, as an alien lawfully present in the United States, he need not concurrently apply for an adjustment of his status, but the court must defer to the contrary interpretation of section 212(h) by the BIA. The court rejected petitioner's argument that the interpretation by the BIA would violate his right to equal protection as a component of due process of law. Petitioner's alternative argument that he qualified as an inadmissible alien eligible for a hardship waiver under section 212(h) also failed. Accordingly, the court denied the petition. View "Poveda v. U.S. Attorney General" on Justia Law

Petitioner, a Mexican national, sought review of 8 C.F.R. 208.31, arguing that the regulation was unlawful because it precluded him from applying for asylum. The Government sought to dismiss for lack of jurisdiction because the Department of Homeland Security (DHS) was still considering whether petitioner had a reasonable fear of persecution, which could permit him to apply for withholding of removal. The court held that because DHS had not completed all proceedings pursuant to section 208.31 that would determine whether or not plaintiff would be removed, the court lacked jurisdiction to review the petition. View "Ortiz-Alfaro v. Holder, Jr." on Justia Law

Petitioner, a native and citizen of the Philippines, petitioned for review from an order by the BIA affirming an order of removal by the IJ. The IJ found petitioner removeable for having been convicted of possession of a controlled substance in violation of California Health & Safety Code 11377(a). The court held that the record was clear that petitioner pleaded guilty to possession of methamphetamine, a controlled substance offense that supported the order of removal. Accordingly, the court denied the petition. View "Cabantac v. Holder, Jr." on Justia Law

Kimani, a citizen of Kenya, entered the U.S. in 2000 on a visitor’s visa, overstayed, and, three years later, married a citizen. She applied for a visa on his behalf, and he filed a corresponding request for adjustment of status to that of lawful permanent resident. Investigation revealed that in 2003 Kimani had registered to vote and had represented that he was a U.S. citizen. In November 2004 he voted in the general election, violating 18 U.S.C. 611, and 8 U.S.C.1182(a)(10)(D)(i). An immigration judge denied Kimani’s petition and ordered his removal; the Board of Immigration Appeals affirmed. The Seventh Circuit denied a petition for review. Kimani’s problem is not that other people are ahead of him in a queue for visas; it is that he is ineligible for adjustment of status whether or not he has a visa. View "Kimani v. Holder" on Justia Law

Elizabeth, a citizen of the Philippines, married John, a U.S. citizen, in 2003 in the Philippines. The State Department issued a nonimmigrant K-3 visa pending action on John’s request for her permanent residence as the immediate relative of a U.S. citizen. After arriving in the U.S., Elizabeth obtained a driver’s license. The State of Illinois also sent her a voter registration card, and she voted in the 2006 election. Immigration officials discovered that Elizabeth had voted. She was ordered removed for violating 18 U.S.C. 611, which rendered her inadmissible and ineligible for benefit as John’s spouse, 8 U.S.C. 182(a)(10)(D)(i). The Board of Immigration Appeals affirmed. The Seventh Circuit remanded for determination of whether Elizabeth showed her passport and visa to the state official; whether that official raised the subject of voting knowing that she was an alien; and whether that official checked the box claiming citizenship after Elizabeth signed the forms. View "Keathley v. Holder" on Justia Law

Petitioner Shahid Iqbal appealed a district court's denial of his motion for attorney fees under the Equal Access to Justice Act (EAJA). Petitioner is a native and citizen of Pakistan who acquired lawful permanent residency in the United States in 2002. On July 11, 2008, he filed an application for naturalization with the United States Citizenship and Immigration Services (USCIS). On August 17, 2009, he successfully passed a naturalization examination, but the USCIS did not adjudicate his application due to an ongoing background check by the FBI. On June 18, 2010, still having received no decision on his application, Petitioner filed this action. On September 13, 2010, the USCIS denied Petitioner's naturalization application on the ground that he had not met the physical presence requirements for naturalization. Based on the denial, Defendants filed a motion to dismiss Petitioner's petition as moot. In the alternative, Defendants asked the district court to decline jurisdiction in deference to the agency’s expertise in adjudicating naturalization applications. The district court denied the motion to dismiss, concluding that once Petitioner filed his petition, the USCIS no longer had jurisdiction to adjudicate the naturalization application. On April 5, 2011, Petitioner filed his motion for an award of attorney fees and expenses under EAJA, arguing that he was a prevailing party because the district court denied the government’s motion to dismiss for lack of jurisdiction and remanded the case to the USCIS for a determination of the merits of his naturalization application. He also argued that the government’s delay on his application and its position on its motion to dismiss for lack of jurisdiction were not substantially justified. The district court denied the fee motion, concluding that Petitioner was not a prevailing party because he had obtained no judicial determination on the merits of his claims, the court had not ordered the USCIS or the FBI to act within a certain period of time, and the court had not retained jurisdiction after remanding the matter to the agency. Upon review, the Tenth Circuit affirmed the district court's decision to deny attorney's fees. View "Iqbal v. Holder, et al" on Justia Law

A citizen of India, Desai was admitted to the U.S. as a lawful permanent resident in 1980. He acquired convictions for: burglary and criminal mischief (1991), burglary and conspiracy to commit burglary (1992), burglary (1992), theft (1993), theft (1994), shoplifting (1997), possession of marijuana (2000), disorderly conduct (2001), and theft and possession of a controlled substance in the third degree (2002). In 2008, Desai was charged with removability based on his 1994 and 2002 convictions. He applied for relief under the Convention Against Torture, alleging that his HIV-positive status made him vulnerable to discrimination and persecution in India. A year after Desai’s removal, his 2002 conviction was vacated. After the 90-day window, 8 U.S.C. 1229a(c)(7)(C), Desai moved to reopen sua sponte. The BIA held that it lacked jurisdiction because the post-departure bar, 8 C.F.R. 1003.2(d), precludes a removed person from filing a motion to reopen. The Third Circuit denied appeal. While the court previously held the post-departure bar invalid to the extent it conflicted with the Illegal Immigration Reform and Immigrant Responsibility Act, 8 U.S.C. 1229a(c)(7), (granting aliens the right to file one motion to reopen under certain conditions), it can be invoked as a basis for refusing to reopen under 8 C.F.R. 1003.2(a).View "Desai v. Attorney Gen. of the U.S." on Justia Law

This appeal involved challenges to ten provisions of Alabama's House Bill 56, the "Beason-Hammon Alabama Taxpayer and Citizen Protection Act" (H.B. 56). The stated purpose of the legislation was to discourage illegal immigration within the state and maximize enforcement of federal immigration laws through cooperation with federal authorities. The court found that the United States was likely to succeed on the merits of its challenges to sections 10, 11(a), 13(a), 16, 17, and 27 of H.B. 56. The court agreed with the United States that it was not likely to succeed on the merits of its challenge to section 12(a) or section 18 at this time. The court also found that the United States had not shown at this stage that it was likely to succeed on the merits of its challenge to section 30. Finally, the court dismissed the United States' appeal as to section 28 as moot, as the court's opinion in the private plaintiffs' companion case fully disposed of that issue. View "United States v. State of Alabama, et al." on Justia Law

Defendants appealed the district court's order granting plaintiffs' motion and preliminarily enjoined enforcement of sections 7 and 8 of House Bill 87, the Illegal Immigration Reform and Enforcement Act of 2011 (H.B. 87), on the ground that each was preempted by federal law. H.B. 87 was enacted to address the problem of illegal immigration within the state. The court held that section 7 could not be reconciled with the federal immigration scheme or the individual provisions of the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq. Accordingly, the court affirmed in part the district court's order preliminarily enjoining enforcement of section 7. The court reversed in part the portion of that order enjoining section 8. View "Georgia Latino Alliance for Human Rights, et al. v. Governor of Georgia, et al." on Justia Law