Justia Immigration Law Opinion Summaries

Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's decision dismissing his appeal from an IJ's order finding him removable and denying his application for cancellation of removal. Petitioner challenged the BIA's finding that his six convictions for "willfully manufacturing, intentionally selling, and knowingly possessing for sale more than 1,000 articles bearing a counterfeit trademark," in violation of California Penal Code 350(a)(2), constituted an aggravated felony as an "offense relating to... counterfeiting." Petitioner also maintained that the generic offense of counterfeiting referred only to the imitation of currency and that this conviction under section 350 did not require proof of his intent. The court held that the definition of aggravated felony extended to convictions for the unauthorized imitation of trademarks. The court also rejected petitioner's remaining argument that section 350 did not incorporate "an intent to defraud" as an essential element of the offense because "[t]he commission of the crime necessarily defrauds the owner of the mark, or an innocent purchaser of the counterfeit items, or both," and the court had "difficulty distinguishing such intent from a general intent to defraud[.]" Accordingly, the petition for review was denied.

The three defendants in this consolidated case were Mexican nationals who were living in the United States illegally. At issue was what evidentiary showing must a defendant, charged with being found in the United States after previously having been deported, 8 U.S.C. 1326(a), make before a district court was obliged to consider his request for a lower sentence to account for the absence of a fast-track program in that judicial district. The court held that a district court need not address a fast-track argument unless defendant had shown that he was similarly situated to persons who actually would receive a benefit in a fast-track district. Until defendant met these preconditions, his "disparity" argument was illusory and could be passed over in silence. Accordingly, the court concluded that the fast-track arguments made by all three defendants were illusory and could be passed over in silence. Therefore, the court affirmed each sentence; one defendant's sentence, however, was modified to clarify that his participation in the Inmate Financial Responsibility Program was voluntary.

Petitioner, a lawful permanent resident, petitioned the court for review of the denial of his application for cancellation of removal. At issue was whether petitioner's second conviction for domestic battery qualified as a "crime of violence" under 18 U.S.C. 16(a) and thus was an aggravated felony prohibiting him from applying for cancellation. The court held that convictions for domestic battery for causing bodily harm to petitioner's wife was a crime of violence in light of LaGuerre v. Mukasey and United States v. Upton. Therefore, the court denied the petition for review.

Defendant pleaded guilty to one count of being an alien found in the United States following a prior removal and sentenced to 77 months imprisonment. At issue was whether the district court procedurally erred in calculating defendant's criminal history under the Guidelines by erroneously finding that the date his present offense commenced was October 1, 2002. Also at issue was whether the district court imposed a substantively unreasonable sentence. The court held that the district court did not clearly err where the unrebutted evidence reasonably supported a finding that defendant last reentered the United States on October 1, 2002 and that he remained in the United States until he was apprehended on January 7, 2010. The court also held that the district court did not impose a substantively unreasonable sentence where the record reflected that the district court considered all the 18 U.S.C. 3553(a) factors; noted that defendant's "serious criminal history" and the need for deterrence justified the sentence; and addressed certain arguments made by defendant. Accordingly, the judgment of the district court was affirmed.

Petitioner, an Indonesian citizen of Chinese descent, petitioned for review of the BIA's order affirming an IJ's denial of her claims for asylum and withholding of removal. At issue was whether the IJ correctly determined that petitioner's asylum application was untimely because she had not established an exception to the one-year filing requirement. The court held that the BIA erred as a matter of law in finding that fraudulent deceit by an immigration consultant could not constitute an "extraordinary circumstance" that excused an otherwise untimely asylum application. Therefore, the court granted the petition and remanded for the BIA to consider whether the ordeal petitioner experienced constituted fraudulent deceit by an immigration consultant and whether she filed her asylum application within a reasonable time after such circumstance, thereby excusing the untimeliness of her application and requiring the BIA to consider her asylum application on the merits. With respect to petitioner's claim for withholding of removal, the court granted the petition and remanded for further consideration in light of its recent decision in Wakkary v. Holder.

Petitioner, a native and citizen of Mexico, petitioned for review of the final order of removal issued by the BIA affirming the IJ's finding that he was removable as charged and denying his applications for adjustment of status and post-order voluntary departure. This case involved petitioner's application for adjustment of status to permanent resident under 8 U.S.C. 1255, in which he asserted his entitlement to classification as a child under the Child Status Protection Act (CSPA), Pub. L. No. 107-208, section 1, 116 Stat. 927. The court held that the BIA correctly concluded that petitioner was not entitled to adjustment of status because he did not meet the requirements under the CSPA to maintain his child status. The court also held that the BIA correctly denied petitioner's request for post-order voluntary departure because he did not reside in the United States for one year immediately preceding the delivery date of the notice to appear. Accordingly, the court denied the petition for review.

Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's decision denying his application for cancellation of removal. At issue was whether a state court conviction for a simple-possession drug crime, later expunged by the state court, nevertheless constituted a "conviction" for federal immigration purposes. The court held that the constitutional guarantee of equal protection did not require treating, for immigration purposes, an expunged state conviction of a drug crime the same as a federal drug conviction that had been expunged under the Federal First Offender Act, 18 U.S.C. 3607(b). Therefore, the court overruled its holding to the contrary in Lujan-Armendariz v. INS. The court also held that, in light of the equities and other considerations, the court would apply this new rule only prospectively. Accordingly, the court held that the BIA did not err and affirmed the judgment.

Petitioner, a native and citizen of China, petitioned for review of a final order of removal by the BIA where the BIA denied petitioner's applications for asylum and withholding of removal because it concluded that he had failed to establish that his past mistreatment was on account of a protected ground and where the BIA also denied petitioner's application for protection under the Convention Against Torture (CAT). The court found that the BIA ignored the anti-government political opinions Chinese officals imputed to petitioner as a motivating factor for their abuse, and erroneously concluded that his pro-labor activities did not constitute an expression of a political opinion. Further, the IJ's conclusion that the Chinese officials mistreated petitioner because of legitimate prosecution was not supported by substantial evidence. Therefore, the court granted the petition for review and reversed the BIA's finding that petitioner had not established a nexus to a protected ground where any reasonable fact-finder would be compelled to conclude that the past mistreatment petitioner suffered was on account of a protected ground. The court remanded to the BIA to determine whether petitioner had established past persecution or a well-founded fear of future persecution, with instructions to provide a more reasoned explanation of its decision on his CAT claim.

Petitioner, a native and citizen of Mexico, petitioned for review of a decision of the BIA dismissing an appeal from an order of removal to Mexico. Despite petitioner's testimony to the contrary, an IJ found that petitioner was inadmissible because the inspectors at the border inspection station had reason to believe that petitioner was knowingly involved in drug trafficking. The BIA dismissed the appeal because substantial evidence supported the finding that an immigration officer had the necessary "reason to believe." The court granted the petition for a new hearing because the IJ misunderstood the relevant legal standard and in the circumstances, the court held that it was appropriate to remand for further proceedings to evaluate the credibility of petitioner's testimony that he did not know he was transporting marijuana, and the effect of the determination on the question of whether the IJ or BIA had "reason to believe" in light of all the evidence placed before the IJ during the course of the proceedings.

Defendant pled guilty to illegal re-entry into the United States and was sentenced to 46 months imprisonment. At issue was whether the district court erred in applying the sixteen-level enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii) because defendant's prior Arkansas conviction was a "crime of violence." The court found that defendant was previously charged with rape pursuant to section 5-14-103 of the Arkansas Code, but pled guilty to the lesser-included offense of second degree sexual assault pursuant to section 5-14-125 of the Arkansas Code. The court held that convictions for violating subsections (a)(1) and (a)(2) of section 5-14-125 were forcible sex offenses. Therefore, defendant's conviction of second degree sexual assault was a "crime of violence" and the judgment of the district court was affirmed.