Justia Immigration Law Opinion Summaries

Petitioner sought review of a decision of the BIA affirming the IJ's finding of removeability and denial of his application for asylum and withholding of removal. The BIA affirmed the IJ's conclusion that petitioner, who lived for approximately six continuous years with his parents in Iran, abandoned his lawful permanent resident (LPR) status. The BIA also affirmed the IJ's determination that petitioner failed to meet his burden of proof as to eligibility for asylum and withholding of removal. The court held that substantial evidence did not support the BIA's determination that petitioner abandoned his LPR status where the government had not met its burden with respect to petitioner's abandonment by imputation and where there was no evidence that petitioner himself abandoned his LPR status. Therefore, petitioner remained an LPR and was not removable.

Petitioner, born in the Bahamas in 1981 and lawfully admitted into the U.S, as a permanent resident in 1999, was charged with possession of and intent to deliver marijuana and knowing and intentional possession of a controlled substance in 2005. The Immigration Judge terminated removal proceedings, finding that petitioner sustained only a conviction for possession of marijuana and was not removable under 8 U.S.C. 237(a)(2)(A)(iii) and that he was not removable under subsection (B)(i) because he possessed less than 30 grams of marijuana. On reconsideration, after attempting to determine the amount of marijuana at issue, the IJ issued an order of removal. The BIA dismissed what it characterized as an interlocutory appeal. The Third Circuit remanded, holding that petitioner intended to appeal the order. The agency must consider assertions that the IJ erred in finding that there was clear and convincing evidence that petitioner possessed more than 30 grams of marijuana and that the final order of removal is unenforceable because of his citizenship status.

Petitioner, native and citizen of Mexico, petitioned for review of the BIA's upholding of the denial of his application for deferral or removal under the Convention Against Torture (CAT). Petitioner contended that the BIA evaluated his testimony under an improper legal standard, failed to correct errors by the IJ regarding the scope of the CAT, and violated his rights under the Due Process Clause of the Fifth Amendment. The court held that it lacked jurisdiction to review the BIA's factual determination where the BIA did not err in its treatment of petitioner's testimony and the BIA determined that even assuming petitioner's testimony was honest or credible, his inability to provide important details and key dates made the testimony unpersuasive in establishing a likelihood of torture. Therefore, in light of 8 U.S.C. 1229(a)(c)(4)(B), this approach did not constitute an error of law. The court also held that the BIA applied the correct legal standard in dismissing petitioner's administrative appeal and that any error by the IJ was rendered harmless by the BIA's application of a correct legal standard. The court further held that petitioner had not established a violation of his rights under the Due Process Clause. Therefore, the petition for review was denied.

Defendant entered a conditional guilty plea to one count of attempted entry after deportation in violation of 8 U.S.C. 1326(a) and (b). On appeal, defendant claimed that the Immigration and Naturalization Act (INA) precluded any meaningful judicial review of an expedited removal order, including review of a collateral challenge to such an order in a section 1326 action; under United States v. Mendoza-Lopez, some meaningful review of the order was constitutionally required before the order could be used as a predicate to a criminal proceeding; and therefore, because the statue precluded review, expedited removal orders could not be used as predicates in section 1326 prosecutions. The court held that defendant was entitled to judicial review of the predicate expedited removal orders underlying his section 1326 prosecution but failed to show any prejudice resulting from the alleged procedural flaws in the proceedings that resulted in those orders. Therefore, the court affirmed the district court's denial of defendant's motion to dismiss his indictment and the subsequent conviction and sentence.

Appellant appealed his conviction on various counts related to transporting and harboring illegal aliens. Appellant challenged the district court's decision to admit into evidence videotaped deposition testimony of detained material witnesses pursuant to 18 U.S.C. 3144. For the first time on appeal, defendant argued that the statute was facially invalid and that the court erred by permitting the government to admit the depositions into evidence at trial without any showing of a witness's unavailability. Appellant also argued that the magistrate judge failed to comply with the statue and that certain procedural requirements of Federal Rule of Criminal Procedure 15 and General Order 05-34 of the United States District Court for the District of Arizona were unmet. The court held that the bulk of appellant's claims were meritless. The court did agree that the district court plainly erred by permitting the government to introduce the now-contested depositions into evidence without a showing of unavailability. The court, however, declined to accord appellant any relief because the court was not persuaded that "the error seriously affect[ed] the fairness, integrity, or public reputation of [the] proceedings." Therefore, the court affirmed the district court's judgment of conviction.

A Polish citizen, who entered the U.S. on a visitor's visa in 1994, overstayed, and allegedly tried to bribe an immigration officer in a 1999 sting operation. Before her removal proceedings began, she married a U.S. citizen, who filed a petition for an alien relative visa. In 2006, after the petition was approved, she applied to adjust her status under 8 U.S.C. 1255. The IJ found her removable, denied her motion to suppress evidence collected in the sting, and decided that she was not entitled to adjust her status. The Board of Immigration Appeals dismissed an appeal. The Seventh Circuit dismissed an appeal and forwarded information about petitioner's attorney to the state disciplinary board. The petition included a single, underdeveloped legal argument: that evidence gathered during the sting should have been suppressed because the operation was an egregious violation of petitioner's right to due process, an argument foreclosed by an earlier case. The court noted its jurisdictional limitations, but stated that the agency's evaluation of the equities was not particularly persuasive and that it would have required more than weak circumstantial evidence that an alien had bribed a federal immigration official.

Petitioner, age 60, a lawful permanent resident of the U.S. since 1999, pled guilty to aiding and abetting a conspiracy to violate 8 U.S.C. 1328, which prohibits importation of any alien for the purpose of prostitution, or for any other immoral purpose. His role involved distributing condoms to what he knew were brothels. The government commenced removal on the grounds that petitioner committed a crime involving moral turpitude under 8 U.S.C. 212(a)(2)(A)(i)(I), and for having procured persons for purpose of prostitution. He conceded removability for a crime involving moral turpitude, but denied removability for procuring persons for prostitution. He claimed eligibility for cancellation of removal under INA 240A(a), which requires that the noncitizen have lawful permanent residence for five years, continuous residence for seven years, and no conviction for what amounts to an aggravated felony. The Immigration Judge denied cancellation. The Board of Immigration Appeals affirmed. The Seventh Circuit vacated the order of removal and remanded. "Importation ... of any alien for the purpose of prostitution," 8 U.S.C. 1328, encompasses conduct broader than "an offense that relates to the owning, controlling, managing or supervising of a prostitution business," INA 101(a)(43)(K)(i), so petitioner's conviction is not properly categorized as an aggravated felony.

Petitioner, born in Mexico, entered the U.S. without inspection in 1977. In 1982, he purported to marry an American woman while still married to his wife in Mexico. He was admitted as a lawful permanent resident in 1984. In 1987, petitioner was convicted of delivery of a controlled substance. Removal proceedings were suspended until 2009, when he was apprehended while returning from a trip to Mexico. Petitioner conceded deportability, but applied for waivers of deportation under former sections 241(f) and 212(c) of the Immigration and Nationality Act and for suspension of deportation pursuant to former section 244(a)(2). An immigration judge denied the applications; the Board of Immigration Appeals affirmed. The Seventh Circuit denied review. Petitioner was never charged or found deportable based on fraud; he was charged only based on his controlled substance offense and was ineligible for a 241 waiver. He was ineligible for suspension of deportation because his period of continuous physical presence ended with his drug crime in 1987, or, in the alternative, when an Order to Show Cause issued in 1988.

Petitioner entered the U.S. from Mexico in 1971, and became a lawful permanent resident in 1977. In 2003, she was indicted for mail fraud in connection with a staged accident insurance scheme; loss to the victims exceeded $10,000. On advice of counsel, she pled guilty and was sentenced to four years’ probation. An alien who is convicted of an aggravated felony is deportable, 8 U.S.C. 1227(a)(2)(A)(iii). The government initiated removal proceedings after petitioner unsuccessfully applied for citizenship. She sought to have her conviction overturned and filed a motion for a writ of coram nobis, claiming ineffective assistance of counsel because her attorney failed to inform her that a guilty plea could lead to removal. While the motion was pending, the Supreme Court decided Padilla v. Kentucky, 130 S. Ct. 1473 (2010). The court concluded that Padilla did not announce a new rule and did apply to the case and vacated the conviction. The Seventh Circuit reversed. The Supreme Court has defined the concept of an old rule narrowly, limiting it to holdings so compelled by precedent that any contrary conclusion must be deemed unreasonable; Padilla announced a new rule. That numerous courts had failed to anticipate the holding, though not dispositive, is strong evidence that reasonable jurists could have debated the outcome.

Petitioner, a native and citizen of El Salvador, petitioned for review of a decision of the BIA ordering him removed to his native country. The BIA affirmed the IJ's ruling that petitioner was ineligible for asylum, withholding of removal, and withholding under the Convention Against Torture (CAT) because he had been "convicted of a particularly serious crime," driving under the influence (DUI). The BIA also ruled that petitioner was ineligible for deferral of removal under the CAT because he failed to prove a likelihood of future torture. The court held that it had jurisdiction to review the BIA's determination that an alien had been convicted of a "particularly serious crime." The court also held that driving under the influence was not statutorily defined as an aggravated felony did not preclude the BIA from determining that it could be a particularly serious crime. The court further held that the BIA, as the Attorney General's delegate, was permitted in this case to determine whether petitioner's DUI offenses were particularly serious for purposes of asylum eligibility. The court held, however, that the BIA's explanation for its decision was so ambiguous that the court could not conduct meaningful judicial review and therefore, remanded to the BIA for a clear explanation.