Justia Immigration Law Opinion Summaries

In 1996, an immigration judge ordered petitioner deported unless he voluntarily left the U.S. In 2009 he was detained and sought a stay of removal, claiming he had departed before the 1996 voluntary-departure deadline, precluding his conditional order of removal from becoming a final order of removal. He presented an expired Mexican passport and a marriage certificate, both issued in Mexico in 1998. The application was denied and petitioner was deported. The Sixth Circuit dismissed an appeal for lack of jurisdiction. Federal courts of appeal do not have jurisdiction over denials of petitions to stay removal; petitioner had not appealed to the BIA the decisions on his motion for a speedy bond hearing and never challenged his removability in 1996. He cannot challenge enforcement of the 1996 order as if it were a new order.

Petitioner was detained for 1,072 days pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. 1226(c), which requires that any person who is removable from this country because he has committed a crime involving moral turpitude or a crime involving a controlled substance be taken into custody and does not provide for release on bond. Petitioner, a citizen of Senegal, apparently had a state conviction for possessing a controlled substance. The district court concluded that the detention was lawful. The Third Circuit construed the pro se petition as seeking habeas corpus and reversed. The statute authorizes only detention for a reasonable period of time, after which the Due Process Clause requires that the government establish that continued detention is necessary to further the purposes of the detention statute. Detention of petitioner for nearly three years without further inquiry into whether it was necessary to ensure his appearance at the removal proceedings or to prevent a risk of danger to the community, was unreasonable.

Petitioner, a native and citizen of China, petitioned for review of a decision of the BIA affirming the IJ's decision denying asylum in the exercise of its discretion. The BIA's decision balanced the likelihood of persecution and its severity against the negative factors in the record and agreed with the IJ that petitioner's method of entry into the United States - being concealed in a metal box that was welded to the bottom of a car and driven across the border in the desert heat - was so dangerous that asylum should be denied. Petitioner appealed the BIA's decision related to the denial of asylum. After petitioner filed his appeal with the court, DHS successfully completed background checks and the IJ signed and filed a one-page standardized form confirming that withholding of removal had been granted. The form also indicated that appeal from the order was waived. The court held that it had jurisdiction to review the BIA's final order denying relief despite the fact that the BIA remanded pursuant to 8 C.F.R. 1003.1(d)(6). The court held that because the BIA properly considered the totality of the circumstances and weighed the risk of persecution against the egregious nature of petitioner's entry into the United States, the court denied the petition for review.

Petitioner entered the U.S. in 1993 as a minor and became involved with a gang. In 2000, he was serving an Illinois sentence for robbery and aggravated battery. He was removed to Mexico in 2001 and was prohibited from re-entering without first seeking waiver of his inadmissible status. See 8 U.S.C. 1182(a)(9)(A)(ii)-(iii). Petitioner re-entered illegally and claims he was attacked by strangers in 2002. In 2010 he was arrested and the removal order was reinstated. He sought a U Visa (8 U.S.C. § 1101(a)(15)(U)), which would grant him temporary lawful status based on the 2002 attack and his cooperation with the police at that time and waiver of his inadmissible status. Both were denied. The Seventh Circuit upheld reinstatement of removal and declined to review the visa denial for lack of jurisdiction.

Petitioner, a native and citizen of Venezuela, petitioned for review of the BIA's decision, affirming the IJ's finding that petitioner's testimony was not credible. At issue was whether substantial evidence supported the BIA's decision. The court held that substantial evidence supported the IJ's and the BIA's finding that petitioner's testimony was not credible where the IJ and BIA offered specific and cogent reasons for the finding and where they cited numerous material inconsistencies between petitioner's testimony and the documentary evidence introduced in support of his asylum application. Therefore, the court denied the petition for review.

Petitioners, natives and citizens of India, petitioned for review of an order of the BIA affirming the IJ's denial of their motions to reopen and rescind their in absentia orders of deportation to India. Petitioners contended that they did not receive proper notice of the deportation hearing, which the IJ held in absentia. The court held that the IJ and BIA reasonably concluded that petitioners failed to rebut the strong presumption of effective service because they did not provide documentary evidence from the Postal Service, third party affidavits, or other similar evidence demonstrating that there was improper delivery or that nondelivery was not due to their failure to provide an address where they could receive mail. Therefore, the court concluded that the government satisfied its burden of showing delivery by sending the notices of deportation proceedings by certified mail.

Petitioner, a citizen of Pakistan, pleaded guilty to unlawful possession of less than two ounces of marihuana. At issue was whether a waiver was available where an applicant had been convicted of two separate offenses of possessing 30 grams or less of marihuana but had already received an 8 U.S.C. 1182(h) waiver relating to the first offense. The court held that based on the plain language of section 1182(h), the implausibility of petitioner's reading, and prior BIA and Fifth Circuit precedent, an alien who had been convicted of two or more offenses of simple possession of 30 grams or less of marihuana was ineligible for a 1182(h) waiver, regardless of whether he previously received a 1182(h) waiver related to one of his offenses. Therefore, the petition for review of the BIA's decision was denied.

Petitioner left China to seek asylum in the U.S. and claims that family-planning authorities forced her to have an abortion. Her evidence included a letter from her mother, confirming her version of events and documents that she said were issued by the hospital. One was an outpatient medical record stating that the procedure was due to pregnancy without marriage; the other was a disease certificate. An immigration judge denied the application, concluding that, although she credibly testified to having an abortion, she failed to establish that it was involuntary. The BIA affirmed. The Seventh Circuit granted review and remanded, concluding that the agency misread precedent. The agency did not identify other readily- available evidence that might have helped prove the forced nature of her abortion, especially when the IJ found her testimony about her strenuous efforts to avoid the abortion as being credible.

Defendant Juan Jose Montoya-Ruiz appeals his 46-month sentence for unlawful reentry of an alien who had previously been deported after commission of an aggravated felony. On appeal, Defendant challenged the substantive reasonableness of his sentence. Defendant, a native and citizen of Mexico, was sentenced in California on November 14, 1994, for possession of a controlled substance for sale (an aggravated felony) and was thereafter deported. On April 2, 2010, he was found within the State of Colorado and indicted for illegally reentering the United States. His presentence investigation report calculated that under the United States Sentencing Guidelines, the advisory range for his sentence was 46-57 months. The probation office recommended a 50-month sentence. Before the sentencing hearing, Defendant moved for a downward variance. The district court imposed a sentence of 46 months' incarceration. Finding no abuse of discretion by the district court, the Tenth Circuit affirmed Defendant's sentence.

Defendant Doroteo Rendon-Martinez was convicted of possession of a firearm and ammunition by a felon and of illegal reentry by an alien after being deported. He appealed his convictions and 180-month concurrent sentences to the Tenth Circuit. Defendant, a native and citizen of Mexico, was removed from the United States in December 2009. By February 9, 2010, however, he had returned and was living in a house in Oklahoma City. On that day, he thought three men were trying to break into the house. Knowing that a .38 Special revolver and ammunition were on the premises, he grabbed the gun and fired warning shots into the yard. Someone called the police, and when officers arrived they saw Defendant holding the revolver. Upon review, the Tenth Circuit found "there was no error, much less plain error" in the district court's decision in Defendant's case. Accordingly, the Court affirmed Defendant's conviction and sentence.