Justia Immigration Law Opinion Summaries

Petitioners, citizens of Mexico, entered the U.S. unlawfully in 1993 and 1998, respectively. Since 2000, husband has been seeking employment-based permanent residency. An individual who would not ordinarily qualify for lawful permanent residency because he entered without inspection, may apply as the beneficiary of a labor certification application or a visa petition filed on or before April 30, 2001, 8 U.S.C. 1255(i). According to the court, petitioners' former attorney provided incompetent, and at times ethically questionable, representation throughout the visa petition process, missing filing deadlines and sending associates to hearings without adequate information about the case, so that an IJ granted voluntary departure and the BIA affirmed denial of a motion to reopen. The Third Circuit denied review. The Due Process Clause does not guarantee an alien effective assistance of counsel in preparing, filing, and appealing a labor certification application and a visa petition before the start of removal proceedings. By the time removal proceedings began, petitioners had accrued more than one year of unlawful presence and would have been ordered removed regardless of counsel's actions.

Petitioner appealed from the district court's denial of habeas corpus relief after finding that he did not derive citizenship from his father. The district court ruled that petitioner was not in his father's "legal custody" when his father naturalized. The court concluded that the district court erred because it relied on an unenforceable Dominican Republic custody award where New York had jurisdiction to determine custody. Accordingly, the court vacated the judgment and remanded for further proceedings.

The Mexican nationals in consolidated cases re-entered the U.S. without authorization, having been removed following conviction of crimes. Charged with being in the U.S. after having been deported (8 U.S.C. 1326(a)), they requested reductions in sentence because the district did not have a "fast track" program under which they could receive leniency in exchange for a guilty plea. The Seventh Circuit affirmed the district court's rejection of the argument. A district court need not address the argument unless the defendant has shown that he is similarly situated to those who would actually receive the benefit in a fast-track district. A defendant must promptly plead guilty, agree to the factual basis proffered by the government, execute an enforceable waiver of specific rights before or during the plea colloquy, establish that he would be eligible for a fast‐track sentence in at least one district offering the program, and submit the likely imprisonment range in that district.

Defendant-Appellant Juan Manuel Cardenas-Mireles pled guilty to the offense of illegal reentry after deportation. At sentencing, he moved for a downward variance notwithstanding an adult criminal record involving 44 convictions and four deportations. The district court denied the motion, instead sentencing Defendant at the top of the applicable guidelines range. Defendant appealed his sentence on two grounds: (1) the district court committed procedural error by relying on an impermissible sentencing rationale to lengthen his sentence (namely, that remaining incarcerated was in Defendant's own best interests due to his health and mental state); (2) his sentence is substantively unreasonable. Finding that the district court did not abuse its discretion in sentencing Defendant to a sentence within the guidelines, the Tenth Circuit affirmed the district court's decisions.

Petitioner, a native and citizen of Mexico, petitioned for review of the decision of the BIA affirming an order that denied his motion to terminate removal proceedings based on his prior convictions. In 1994, the government first charged petitioner with removeability based on multiple convictions for child molestation and the IJ terminated those proceedings after finding that his convictions did not fall within the INA's definition of "aggravated felony." The government again charged petitioner with removability based on his 1993 convictions after Congress changed the law, codifying an expanded definition of aggravated felony to include "sexual abuse of a minor." The court agreed with the district court and held that res judicata did not bar the current removal proceedings against petitioner because they were based on a ground for removal that did not exist when the prior proceedings were terminated. Accordingly, the petition for review was denied.

Defendant, a native of Mexico, became a lawful permanent resident of the U.S. in 1978. In 1996, he filed an Application for Naturalization, disclosing that he had been arrested for a marijuana crime in the 1980s, and for disorderly conduct and trespassing in the 1990s, but that all charges had been dismissed. He did not reveal was that he had recently committed additional marijuana-related offenses for which he had not yet been charged. In 1998 he became a citizen and, weeks later, was charged with possession with intent to distribute 196 pounds of marijuana (21 U.S.C. 841(a)(1)) and conspiracy to possess with intent to distribute marijuana (21 U.S.C. 846). His sentence of 88 months was affirmed on appeal. Approximately three years after defendant was released from prison, the government sought to revoke his naturalization (8 U.S.C. 1451(a)). The district court granted judgment in favor of the U.S., finding that defendant was barred from establishing good moral character. The Seventh Circuit affirmed, declining to commit a "loophole" for those who evade detection and conviction until after they are naturalized.

Petitioner, born in El Salvador, petitioned for review of the BIA's dismissal of his appeal. The BIA found that petitioner was removable because he had committed a crime of violence and failed to establish entitlement to relief from removeability. The court held that the BIA committed no error when it dismissed petitioner's appeal because he failed to establish a claim of derivative citizenship due to his legitimation under Salvadoran law. In the absence of derivative citizenship, petitioner was subject to removal due to his commission of a crime of violence. Accordingly, the petition was denied.

Petitioners Qi Hui Chen and his son, Yiyao Li Chen, natives and citizens of China, sought to overturn Board of Immigration Appeals' (BIA) decisions affirming the Immigration Judge's (IJ) decision to deny their requests for asylum and restriction on removal. Qi Hui arrived in the United States in January 1997. He submitted his asylum application in September 2006. Yiyao Li came to the United States in October 2004. He submitted his asylum application in December 2007. Petitioners sought asylum and restriction on removal based on their political opinion and membership in a particular social group. Their applications were based on his opposition to the family-planning policy in China. Qi Hui testified that, at the end of 2006, he and Yiyao Li sent a letter to their church in China suggesting that the church should not endorse the birth-control policy anymore. Qi Hui testified that a few weeks after they sent the letter, his wife received a notice instructing the Chens to surrender. Although the Chens each filed their own asylum applications, they moved to consolidate their removal proceedings. The IJ held one hearing on both applications and issued one decision denying all forms of relief. The BIA affirmed. Although the Tenth Circuit agreed that the better practice would have been for the Chens to file separate petitions for review from the separate BIA decisions, under the circumstances in this case, it was sufficient to file a single petition for review and it was not in the interests of judicial economy to bifurcate the proceedings. Accordingly, the Court denied Petitioners' motion to bifurcate.

Defendant-Appellant Carrillo-Rodriguez pleaded guilty to the offense of illegal reentry after deportation subsequent to an aggravated felony conviction. At sentencing, he moved for a downward variance from the applicable United States Sentencing Guidelines (USSG) range based on the staleness of his prior felony. The district court declined to grant it, instead sentencing Defendant at the bottom of the applicable guidelines range. Defendant appealed his sentence, arguing that it was substantively unreasonable. Because the district court did not abuse its discretion in declining to grant Defendant's request for a downward variance, the Tenth Circuit affirmed the court's judgment.

Petitioner Jose Luis Magallon-Almanza, a native of Mexico, sought review of a Board of Immigration Appeals (BIA) decision affirming an immigration judge’s (IJ’s) order of removal. In the proceedings before the IJ, Petitioner conceded he was removable, but sought a cancellation of removal. The IJ found Petitioner did not meet either of these requirements and therefore denied relief and ordered him removed to Mexico. The BIA examined the evidence of hardship to Petitioner’s United States citizen children and agreed with the IJ that Petitioner did not establish they would suffer exceptional and extremely unusual hardship if he were removed to Mexico. The BIA also summarily rejected Petitioner’s argument that the IJ applied the wrong legal standards in analyzing his evidence of hardship. The BIA affirmed the IJ's order of removal. The Tenth Circuit's review of the IJ's decision showed no support for Petitioner's arguments raised on appeal. The Court therefore affirmed the IJ's and BIA's decisions.