Justia Immigration Law Opinion Summaries

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.

A native of Algeria and a native of Lebanon and his family were denied asylum, withholding of removal, and protection under the Convention Against Torture. The Board of Immigration Appeals affirmed and granted voluntary. The Third Circuit denied their petitions. With respect to the Algerian, the IJ considered the totality of the circumstances and provided the reasons for his findings, noting the brevity of petitioner's statements and lack of detail about his experiences in Algeria, his overall demeanor, and the implausibility of his stories. Any reasonable fear of persecution that the Lebanese citizen may have had upon returning to Lebanon has been negated by changed country conditions.

South Sudan declared its independence from Sudan in July, 2011. President Obama formally recognized the new republic on the same day. One month earlier, the Seventh Circuit heard oral arguments in a case claiming that the Board of Immigration Appeals erroneously denied petitioner deferral of removal to Sudan under the Convention Against Torture. Petitioner's home is in the new republic. The Seventh Circuit remanded, in light of the changed circumstances, the government's acknowledgement of legal errors in the opinion of the Immigration Judge, and the government's assertion that it no longer plans to remove petitioner to Sudan.

Petitioner entered the U.S. from Mexico as a three-year-old and grew up in Los Angeles. In 2001 he was arrested for importation and sale of a significant amount of cocaine; while on bail, he was twice arrested for driving on a suspended or revoked license. In 2002, he consented to a search of his car that turned up cocaine. Before petitioner could complete his sentence on the importation and sale conviction, he was removed to Mexico in 2004. He returned to Los Angeles without authorization, primarily to take care of his daughters. Following another traffic stop, he was deported and again returned unlawfully. He was arrested for possession of cocaine in 2009. Though that charge was dismissed, petitioner admits that he used cocaine that day. He pled guilty to illegal reentry (8 U.S.C. 1326(a)). The district court rejected arguments for a lighter sentence than the guidelines range of 46-57 months and the Seventh Circuit affirmed. Based on petitioner's risk of recidivism, the court acted within its discretion in declining to consider his cultural assimilation and the absence of a "fast track" program that would have given him the opportunity to receive a lighter sentence in exchange for waiving certain rights.

This case stemmed from plaintiff's detention as an undocumented immigrant where plaintiff claimed that various authorities deprived him of medication for his schizophrenia and that the detention resulted from the insufficient training of public defenders regarding the immigration consequences of criminal pleas. At issue was whether plaintiff properly exhausted his administrative remedies under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346, 2671-80, where the federal agencies denied plaintiff's administrative tort claims before he amended his complaint in an ongoing civil action to name the United States as a party and allege a new cause of action under the FTCA. The court held that the claims were properly exhausted but affirmed the district court's dismissal on the alternative ground that plaintiff stated FTCA claims that fell outside the FTCA's waiver of sovereign immunity. The court also affirmed the grant of summary judgment on plaintiff's ineffective assistance of counsel claims, premised on 42 U.S.C. 1983 and Monell v. Department of Social Services.

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.