Justia Immigration Law Opinion Summaries

Petitioner Jean Paul Hernandez, a native and citizen of Mexico, challenged a Board of Immigration Appeals' (BIA) decision affirming an immigration judge's denial of adjustment of status and a waiver of inadmissibility. Petitioner entered the United States on a B-2 visitor visa and overstayed his visit. Nearly twenty years later, the Department of Homeland Security charged him with remaining in this country without authorization. Petitioner conceded he was removable, but he sought several forms of relief, including adjustment of status. At a hearing, Petitioner testified that he came to this country when he was nine years old and had since been convicted of various crimes as a juvenile and adult, but was attempting to turn his life around. Due to his criminal convictions, however, in particular, two petty theft offenses and two controlled substance violations, the IJ concluded that Petitioner was ineligible for adjustment of status or a waiver of inadmissibility. Alternatively, the IJ ruled that even if Petitioner was eligible for adjustment of status, he did not warrant such discretionary relief because his extensive criminal record outweighed the positive attributes in his case, and there was no evidence of rehabilitation. The IJ thus ordered Petitioner removed to Mexico. The BIA affirmed. Finding that Petitioner characterized his argument "as one based on due process, but he cannot transform his challenge to the BIA’s denial of discretionary relief into a claim of constitutional magnitude for the simple reason that he had no due process interest in obtaining purely discretionary relief." The Court concluded it lacked jurisdiction for further review and dismissed the case.

Petitioner, a Ukrainian citizen who entered the U.S. without inspection sought withholding of removal under the Convention Against Torture. The Immigration Judge stated that she was continuing the case for four months, but that if she decided before that date,"you don't need to come back to court. Just make sure you stay in touch with your lawyers." Voluntary departure was not discussed. Three days later, the IJ denied the claims, but granted voluntary departure. Petitioner's lawyer allegedly did not receive the decision until the day before a $500 bond was due, and the bond was never paid. The BIA dismissed an appeal and rejected his request to reinstate. While the Board was deliberating, new regulations went into effect requiring immigration judges to advise the noncitizen, before granting voluntary departure, of the amount of the voluntary departure bond and the duty to post bond within five business days. 8 C.F.R. 1240.26(c)(4) (2009). The Seventh Circuit rejected an appeal. Warnings regarding voluntary departure are not retroactively applicable. Petitioner cannot raise a colorable due process claim as there was no procedural defect based on the lack of advisals, and he did receive (though flawed) notice of the bond requirement.

Petitioner Omar Garcia-Tinoco, a native and citizen of Mexico, challenged the Bureau of Immigration Appeals' (BIA's) decision dismissing his appeal of a removal order. Petitioner entered the U.S. without inspection in 1994. Five years later, he pled guilty in Colorado to possession of cocaine. In 2010, the Department of Homeland Security commenced removal proceedings against him. He appeared before an immigration judge (IJ) and conceded that he was in the country illegally, but contested removal on the basis of his controlled-substance conviction because he was "in the process of withdrawing his guilty plea pursuant to a violation of his constitutional rights." To that end, Petitioner filed a post-conviction petition in state court, arguing that his guilty plea was the result of ineffective assistance of counsel. The IJ denied the motion and ordered Petitioner removed. The BIA affirmed, stating that the IJ was not required to grant a continuance because Petitioner's "collateral attack upon his conviction d[id] not … negate its validity." Petitioner asked the Tenth Circuit to reverse the decision of the IJ and hold that he established good cause for a continuance. Upon review, the Court found that it lacked jurisdiction to review the case: "constitutional infirmities in collateral proceedings are 'categorically' beyond the scope of [the Court's] review."

Petitioner, a citizen of Ukraine, now married to a U.S. citizen, entered the U.S. on a visitor's visa in 1999 and overstayed. An IJ granted voluntary departure by March 8, 2006. A motion to reopen was denied. Petitioner, who claims to have been unaware of the denial, remained in the U.S. and was arrested in 2010. Another motion to reopen was denied and, pursuant to 8 U.S.C. 1229c(d)(1)(B)3 the IJ imposed an absolute 10-year bar on any adjustment of status. A new attorney filed a third motion to reopen, based on petitioner's reliance on his previous attorney, who was incompetent. The IJ rejected the motion and the BIA affirmed. The First Circuit remanded for consideration of whether the time-bar on motions to reopen may have tolled, based on equitable considerations, and whether petitioner "voluntarily" remained in the U.S. so as to be subject to the 10-year bar.

Petitioner, a citizen of China, petitioned for review of the BIA's order affirming the IJ's denial of his petition for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner claimed that he feared persecution if he returned to China because his family practiced Falun Gong. The court held that the BIA need not make a credibility determination when it determined that corroborating evidence was reasonably available to petitioner but was not submitted. The court also held that it could not conclude that petitioner exhausted his administrative remedies and the court did not have jurisdiction to consider his argument. Because petitioner failed to seek voluntary departure before the IJ, petitioner failed to exhaust his administrative remedies. Because the court denied petitioner's petition for review with respect to his application for asylum, it followed that the court also denied his petition for review with respect to his application for withholding of removal.

Petitioner, a 61-year-old Tunisian-Canadian dual citizen, met his wife, a U.S. citizen, in Canada and they married in 1977. They have two children. He became a lawful permanent resident of the U.S. in 1984. In 1988, he was charged in Illinois state court with aggravated battery, armed violence, and attempted murder; expert testimony established that petitioner suffered from major depression with psychotic features and he was found "guilty but mentally ill" of aggravated battery and armed violence and not guilty of attempted murder and was sentenced to four years' imprisonment. He unsuccessfully moved for a judicial recommendation against deportation. An INS attorney indicated that he could seek a waiver under section 212(c) in any subsequent proceeding. Congress repealed that section in 1996. Following a vacation in the Dominican Republic, he was charged as inadmissible for conviction of a crime involving moral turpitude. The IJ denied waiver and the BIA affirmed. The Seventh Circuit remanded. Although petitioner is not eligible for a 212(h) waiver because he committed a "crime of violence," the repeal of 212(c) does not apply retroactively to petitioner.

Petitioner Joel Ruelas-Rios sought judicial review of the Department of Homeland Security's (DHS) order that reinstated his prior removal order. Petitioner is a native and citizen of Mexico. He applied for admission to the United States in 1998 by falsely representing himself as a lawful permanent resident of the United States. Petitioner presented another person’s valid Resident Alien Card at the border. Petitioner was removed that same day under expedited procedures. In 2011, Petitioner was detained in Kansas while attempting to enter McConnell Air Force Base to perform work as a contractor. DHS issued Petitioner notice of its intent to reinstate his prior removal order as an alien who illegally reentered the United States after having been previously removed. Petitioner petitioned for review of DHS's reinstatement order, raising a single contention: whether reinstatement of a prior removal order, without providing the alien a hearing before an immigration judge, is a violation of due process when the alien was also denied a hearing in connection with the prior removal order and had been in the United States for an extended period of time. Because Petitioner failed to establish any prejudice as a result of not being afforded a hearing before an immigration judge, his due process claim failed. The Tenth Circuit denied Petitioner's request for review.

Petitioner, a native of the Philippines, petitioned for review of an order of the BIA directing his removal, as well as the BIA's order denying reconsideration. The court held that the IJ was entitled to rely on petitioner's pleading-stage admission that he had been convicted of a removable drug offense; petitioner failed to carry his burden of proving that he was entitled to relief from removal, or that the IJ violated his due-process rights; and therefore, the petition for review was denied.

Defendant, an alien, pled guilty to knowingly and unlawfully reentering the United States after being deported. The district court enhanced defendant's sentence under U.S.S.G. 2L1.2(b)(1)(E) because the court determined that defendant had been convicted of three or more misdemeanor crimes of violence. The court held that the district court properly applied the enhancement where defendant's four assault and battery convictions under Omaha Municipal Code 20-61 qualified as a crime of violence.

Petitioner, a native and citizen of Senegal, petitioned for review of the BIA's final order, which affirmed an IJ's decision to deny her application for withholding of removal. Petitioner claimed that if she returned to Senegal, it was more likely than not that she would be beaten or killed for attempting to protect her U.S. citizen daughter from being subjected to female genital mutilation (FGM). The court granted the petition for review because the BIA failed to give reasoned consideration to petitioner's application when it found that she could relocate within Senegal to avoid persecution. Accordingly, the court vacated the BIA's decision and remanded for further proceedings.