Justia Immigration Law Opinion Summaries

Petitioner Manuel Damaso-Mendoza sought review of a Board of Immigration Appeals' (BIA) decision that found he was removable despite being a lawful permanent resident of the United States. The BIA determined that Petitioner's Colorado felony conviction for menacing was a crime of violence as defined by federal law, and therefore made him removable. Upon review of the applicable legal authority and the BIA's record on appeal, the Tenth Circuit was "persuaded" by the BIA's reasoning that Petitioner's conviction in Colorado on menacing was a crime of violence. Petitioner therefore committed an aggravated felony and was removable from the United States. The Court denied Petitioner's petition for review and dismissed his appeal.

Petitioner Julio Pizano-Zeferino sought review of a Board of Immigration Appeals' order that he be removed from the United States. Petitioner was a Mexican native who entered the United States illegally without being admitted or paroled. Petitioner conceded his removability. Petitioner applied for cancellation of removal, citing exceptional and extremely unusual hardship to his American-citizen children if he were removed to Mexico. The Immigration Judge found that Petitioner did not establish that he had ten years of continuous physical presence in the United State and that he failed to show exceptional and extremely unusual hardship to the children. Instead of seeking review of the BIA's order by the Tenth Circuit, Petitioner obtained new counsel and filed a "motion to reconsider" with the BIA alleging changed circumstances since the IJ hearing. The BIA treated the motion as a motion to reopen its prior decision, and denied it because the evidence either was not previously unavailable or did not establish a prima facie eligibility for cancellation of removal. Upon review of the BIA record, the Tenth Circuit found that Petitioner failed to present any issues for the Court's review. The Court concluded that it did not have jurisdiction to review the matter further and dismissed his appeal.

Defendant was convicted of unlawfully transporting an illegal alien. Defendant appealed his conviction, specifically the district court's denial of his motion to suppress evidence resulting from a temporary investigative stop by Border Patrol agents on Interstate 35 near Cotulla, Texas. The court held that the circumstances known and the conduct observed by the agents were sufficient to warrant reasonable suspicion justifying the stop. Therefore, the court affirmed the district court's denial of defendant's motion to suppress and affirmed the conviction.

Defendant appealed her conviction of immigration offenses after the district court denied her motion to suppress testimony from the officer who questioned her without Miranda warnings on her arrival at John F. Kennedy International Airport. At issue was whether the district court correctly ruled that the officer's questioning failed to rise to the level of a "custodial interrogation" under Miranda and thus, whether that court properly admitted into evidence defendant's statements to the officer. The court held that, in light of the totality of the circumstances, a reasonable person in defendant's position would not have considered what occurred to be the equivalent of a formal arrest. Therefore, it followed that defendant was not in "custody" and that, for this reason alone, Miranda warnings were not required. Accordingly, the district court correctly denied the motion to suppress the officer's testimony.

Petitioner, a native and citizen of Nigeria, petitioned for review of the BIA's denial of the motion to reopen and the request to stay the removal order, determining that, pursuant to the fugitive disentitlement doctrine, petitioner's failure to report for removal rendered him ineligible for consideration of additional relief. At issue was whether petitioner was a fugitive under the fugitive disentitlement doctrine. The court was persuaded by the Second and Seventh Circuits and held that petitioner became a fugitive when he did not surrender for removal despite that his address was known to authorities. Therefore, in accordance with the fugitive disentitlement doctrine, the court was barred from further review of the petition and the petition was dismissed.

Defendant pled guilty to one count of reentry of removed alien and the district court applied a sixteen-level enhancement for a previous "alien smuggling offense." Defendant filed a motion on March 5, 2010, arguing that the enhancement should not have applied and the district court, twenty-eight days after sentencing, held a hearing on the motion. At a hearing on April 12, 2010, the district court entered an amended judgment and the government subsequently appealed the district court's resentencing of defendant, arguing that the district court did not have jurisdiction to resentence more than fourteen days after sentencing, under Federal Rule of Criminal Procedure 35(a). The court held that the fourteen day provision in Rule 35(a) was jurisdictional and the district court was thus without jurisdiction to resentence defendant. Accordingly, defendant's original sentence must be reinstated. The court further held that, even if the district court had jurisdiction to correct its error, it was still error nonetheless. Accordingly, the amended judgment was vacated and the original judgment was reinstated.

Defendant was convicted on two counts of violating 8 U.S.C. 1326, which prohibited a deported alien from reentering the United States without the consent of the U.S. Attorney General. Defendant appealed from his conviction and from his subsequent sentence of 96 months imprisonment. The court held that the district court acted within its discretion when it excluded defendant's minimally relevant evidence at issue, which presented the potential for jury confusion and which could have resulted in a verdict premised on mere speculation. The court also held that because the trial record contained nothing more than a mere scintilla of evidence of derivative citizenship, the district court did not abuse its discretion when it found the requisite evidentiary foundation lacking and refused to instruct the jury pursuant to that theory. The court further held that the district court did not err by upwardly adjusting defendant's sentence pursuant to a multiple count enhancement and that defendant's sentence was both substantively and procedurally reasonable. Accordingly, the judgment was affirmed.

Following an anonymous tip, the FBI conducted surveillance of defendant and observed that he regularly transported about four people back and forth between his home and his restaurant. A consent search of the home revealed three people who were illegally present in the U.S. and a make-shift dormitory in the basement and garage. Defendant was convicted of two counts of illegally harboring or shielding illegal aliens (8 U.S.C. 1324(a)(1)(A)(iii)) and sentenced to 15 months of imprisonment and ordered to pay $10,000 in fines and forfeit his house. The Seventh Circuit affirmed. The district court rejected a motion to vacate (28 U.S.C. 2255), arguing ineffective counsel. The Seventh Circuit affirmed, rejecting arguments concerning proposal of an incorrect jury instruction; failure to object to video-taped testimony of prosecution witnesses; failure to ensure that a language barrier did not prevent communicating with defendant; and preventing defendant from testifying on his own behalf.

Petitioner, born in the Dominican Republic, lived in the U.S. from 1982 until 2009, when DHS charged him as removable under section 212(a)(6)(A)(i) of the Immigration and Nationality Act as an alien present without being admitted or paroled, and under sections 212(a)(2)(A)(i) and (a)(2)(B) as an alien convicted of an offense relating to a controlled substance and an alien convicted of two or more offenses involving crimes of moral turpitude. He admitted the factual allegations was found removable, but applied for asylum, withholding of removal, and Convention Against Torture protection. He claimed that, because of his assistance to the Drug Enforcement Agency, he would be targeted for violence if returned to the Dominican Republic. The immigration judge denied the applications. The BIA affirmed and 21 days later, petitioner was removed. The BIA denied a motion to reconsider, citing lack of jurisdiction resulting from removal (8 C.F.R.1003.2(d)).The Third Circuit reversed and remanded, holding that the post-departure bar is inconsistent with the Illegal Immigration Reform and Immigrant Responsibility Act, 8 U.S.C. 1229a(c)(6)(A), (7)(A), which grants an alien the right to file one motion to reconsider and one motion to reopen without any geographic limitation on that right.

Defendant pled guilty to illegally reentering the country after having been deported and was sentenced to 51 months imprisonment. On appeal, defendant challenged the district court's imposition of a sixteen-level sentence enhancement under U.S.S.G. 2L1.2. The court held that defendant's previous Colorado criminal conviction for unlawful sexual contact was a "crime of violence" and therefore, affirmed the district court's imposition of the sixteen-level enhancement.