Justia Immigration Law Opinion Summaries

Petitioner, a lawful permanent resident of the United States, was ordered removed on the ground that he had been convicted of an aggravated felony. Petitioner contended that the evidence was insufficient to establish that the crime of which he was convicted was an aggravated felony. The court concluded that petitioner's conviction of first-degree burglary was a conviction of an aggravated felony, and was sufficiently established by the state court's abstract of judgment. The court also rejected petitioner's ineffective assistance of counsel claim and accordingly denied the petition for review.

After Defendant Gilberto Cruz-Arellanes was sentenced for illegally reentering the country, the Sentencing Commission issued an amendment (Amendment 740) to the illegal reentry guideline. The amendment discusses when and under what conditions a district court might wish to depart downward due to a defendant’s cultural assimilation. Seeking the benefit of this new guidance, Defendant filed a motion for a sentence reduction. The district court denied the motion. Defendant appealed, arguing the court abused its discretion in not applying the amended sentencing guidelines. Finding no abuse of discretion, the Tenth Circuit affirmed the district court's order and Defendant's sentence.

In 1999 petitioner, a citizen of the Dominican Republic, entered the U.S. without inspection. He married a U.S. citizen in 2001 and obtained conditional resident status 8 U.S.C. 1186a(a)(1). The marriage ended in 2004. He applied for a hardship waiver of the requirement of submitting a joint petition to remove the condition. The IJ determined that the marriage had not been in good faith and ordered removal. The BIA affirmed. The First Circuit denied review. The IJ based the decision on contradictory accounts, by petitioner and his ex-spouse, about the details of the marriage; petitioner placed the marriage at issue and cannot complain that he did not have notice of the issue.

Petitioner, a native and citizen of Cameroon, petitioned for review of the BIA's decision to affirm the IJ's denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner asserted that the BIA erred in making an adverse credibility determination and, even if it did not so err, independent evidence existed to establish past persecution. The court upheld the adverse credibility determination as supported by substantial evidence and agreed with the BIA that petitioner failed to provide sufficient independent evidence establishing past persecution. Accordingly, the petition was denied.

From 1996 until 2003, petitioner, a Columbian, laundered money for Colombian drug traffickers. He was arrested and agreed to cooperate with the FBI. Conviction and sentencing were deferred. He worked with the FBI from 2003 to 2007. In 2007, petitioner was arrested in Colombia for failure to pay a fine years earlier. He paid the fine, but remained in jail for 22 days. He claims that his arrest was to facilitate his murder by the paramilitary group targeted by his FBI work. When he returned to the U.S. he was arrested because FBI agents believed he was involved in money laundering outside of his cooperation. Petitioner pled guilty based on the 1999 transfers. DHS charged him as removable. An IJ and the BIA denied his request for deferral of removal under the Convention Against Torture. The Third Circuit remanded. The BIA must consider that an applicant can establish governmental acquiescence even if the government opposes the paramilitary organization that is engaged in torturous acts. The BIA must also consider that country conditions can, by themselves, constitute grounds for determining that an applicant would more likely than not be subjected to torture upon return to the country of removal.

Petitioner, a citizen of Albania, entered the U.S. illegally, on a fraudulent Italian passport, in 2004. Arrested at the airport, he sought asylum. The IJ, BIA, and First Circuit rejected his petitions. While appeal was pending, he sought to reopen removal proceedings and argued that removal had been improperly initiated. On appeal from rejection of the petition, he argued that, because of his limited command of English, he did not understand the Visa Waiver Program form he signed, under which he waived the right to contest removal on any grounds other than asylum. The First Circuit denied review, noting petitioner's delay in asserting his claim and that he never attempted to assert any grounds other than asylum.

The petitioners in consolidated cases have been in the U.S. for many years without permission, and each would like to adjust his status to that of lawful permanent resident through relatives who are legitimately in the U.S. The IJ found each ineligible because of the lack of an approved family-relative petition, Form I-130. Each asked for a continuance. The IJ denied the request and ordered removal. The Seventh Circuit denied appeal after first determining that it had jurisdiction over the rulings on continuances. Appeal from revocation of an I-130 petition by one petitioner's son has already been denied, so a continuance would serve no purpose. The IJ provided a sound reason in the other case; the petitioner's four-year delay.

Defendant-appellant Dennis Enriquez Lopez-Avila was charged with unlawful re-entry after deportation following an aggravated felony conviction. Defendant entered a guilty plea after reaching an agreement with the prosecution. The district court rejected Defendant's request for a sentence below that calculated under the advisory guidelines and sentenced him to thirty-seven months' imprisonment. Defendant argued on appeal that his sentence was procedurally unreasonable because the district court erroneously concluded that it could not consider the disparities created by the existence of fast-track programs when determining his sentence. Upon review, the Tenth Circuit found that Defendant presented a "generalized argument" which alone is not sufficient to justify a variance from the sentencing guidelines because of different sentencing guidelines for fast-track programs. Therefore, the Court rejected Defendant's claim of error and affirmed the district court's decision.

Petitioner Abidan Gedioni Pacaja Vicente, a Guatemalan citizen, sought judicial review of the Board of Immigration Appeals (BIA) order that affirmed the Immigration Judge's (IJ) removal order against him. Both denied his claims for asylum, restriction on removal, and protection under the Convention Against Torture (CAT). At the IJ hearing, Petitioner testified that he was afraid of guerrilla violence against himself and his family in his home country dating as far back as 2002. The IJ first concluded Petitioner's asylum application was untimely and further determined that Petitioner had not established extraordinary circumstances to excuse the untimely filing. In an alternative ruling, the IJ denied Petitioner's petition because he failed to establish a nexus between the 2002 event and either a political opinion or membership in a particular social group. The BIA affirmed on the latter ground. Upon review of the IJ and BIA record, the Tenth Circuit concluded that Petitioner failed to carry his burden of proof to overcome the removal order against him. The Court denied Petitioner's request for review.

Defendant-Appellant Mario Casas-Tapia is a citizen of Mexico who lawfully immigrated to the United States with his parents when he was six months old. He was admitted to the United States as a lawful permanent resident, but he lost that status following his criminal convictions while a teenager. In 1998, at the age of eighteen, he pled guilty to misdemeanor assault and first-degree criminal trespass, an aggravated felony, and was deported. His immediate family remained in the United States. After living in Mexico for five years, Defendant returned illegally and resettled near his family. Since returning, he has been convicted of several misdemeanor and felony offenses. In 2010, he pled guilty to unlawful reentry of a removed alien subsequent to an aggravated felony conviction. In the presentence report, the probation officer calculated the sentencing range at thirty to thirty-seven months and recommended a sentence at the high end of the range based on Defendant's criminal history. Defendant moved for a below-guidelines sentence based on cultural assimilation. The court imposed a thirty-month sentence. The sole issue on appeal was whether the district court failed to recognize the scope of its legal authority to apply a downward departure for cultural assimilation. Because the Tenth Circuit concluded that the district court's denial was discretionary, the Court lacked jurisdiction and dismissed the appeal.