Justia Immigration Law Opinion Summaries

In 2005, petitioner, then a teenager, left Honduras and entered the U.S. illegally. When he was caught and DHS began removal proceedings, he filed an application for asylum, withholding of removal, and protection under the Convention Against Torture, claiming that he had suffered persecution at the hands of a street gang on account of his evangelical Christian religious beliefs and his church youth group membership. The Immigration Judge and the Board of Immigration Appeals denied the application because petitioner failed to establish that the gang's actions were on account of his religion or social group membership. The Seventh Circuit denied an appeal, finding the denial supported by substantial evidence.

Claudia illegally entered the U.S. in 1998 or 1999; her younger sister, Silvia illegally entered in 2005. About a year later, DHS charged each with removability under the Immigration and Nationality Act (INA), 8 U.S.C. 1182(a)(6)(A)(i). Both sisters conceded removability but applied for asylum, withholding of removal, and CAT protection, claiming that if they are returned to Guatemala, they will be persecuted by a violent gang the government allegedly cannot control. Silvia had been in witness protection for assisting the government's efforts against the gang and a cousin who was involved with the gang. An immigration judge rejected the petitions and the BIA affirmed. The Third Circuit denied Claudia's appeal, but remanded Silvia's case for a determination of whether the harm she might face rises to the level of persecution and whether she had been safely resettled in Mexico. Silvia shares a common, immutable characteristic with other civilian witnesses who have the shared experience of assisting law enforcement against violent gangs that threaten communities in Central America.

This appeal involved a putative class action brought against several oil and gas companies and several companies that provide labor for offshore oil and gas projects. Plaintiffs alleged that defendants maintained a hiring scheme to employ foreign workers on the Outer Continental Shelf in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961-1968, and the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. 1331 et seq. The district court disposed of all plaintiffs' claims and then entered final judgment dismissing all claims. The court held that the Service Defendants did not violate RICO because the law that would make their conduct racketeering activity did not apply in the place where that conduct occurred, namely vessels floating on the waters of the Outer Continental Shelf. The court rejected plaintiffs' contention that the exemptions the Service Defendants possessed to the OCSLA manning requirements did not shield them from RICO liability because those exemptions were fraudulently obtained. The court also held that plaintiffs could not state a claim for a private right of action for damages under the OCSLA and the district court's dismissal was proper. The court further held that the district court did not err in disposing plaintiffs' OCSLA enforcement claim. Accordingly, the judgment of the district court was affirmed.

Defendant Miguel Hernandez-Valdez appealed his sentence of thirty-three months' imprisonment for having been convicted of being an alien in possession of a firearm. On appeal to the Tenth Circuit, Defendant argued that the district court erred in applying a four-level sentencing enhancement under the United States Sentencing Guidelines for his possession of the firearm in connection with another felony offense. Although the Court concluded the district court failed to engage in fact finding as required by the Federal Rules of Criminal Procedure, Defendant did not show that the court committed plain error. Accordingly, the Tenth Circuit affirmed the district court's calculation of Defendant's sentence.

Petitioner sought to enter the U.S. with a stolen French passport in 2005, but was intercepted. Numerous proceedings ensued arising from Department of Homeland Security removal proceedings against him. Petitioner sought asylum, withholding of removal, and relief under the Convention Against Torture, claiming to fear returning to Guinea because he believes he will be persecuted on account of his political opinion attributable to his membership in the Rally of Guinean People Party. The Board of Immigration Appeals rejected his arguments. The Third Circuit vacated for reconsideration, noting a change in power in Guinea. The court did not address the merits.

Defendant appealed from an oral order denying his request for appointment of new counsel and permitting him to proceed pro se. Defendant was charged in a superseding indictment with one count of being a previously deported alien found in the United States and was currently incarcerated and waiting trial. The court held that it lacked jurisdiction because the collateral order doctrine barred the immediate appeal of an order denying a request to appoint replacement counsel. Because it was clear that the order denying appointment of replacement counsel could be reviewed effectively after trial, the court declined to treat the appeal as a petition for mandamus.

Defendant Lazaro Villalobos-Varela appealed a district court’s sentence of thirty months' imprisonment for re-entry as a removed alien in violation of federal immigration law. According to Defendant, the district court incorrectly concluded that his Colorado felony menacing conviction was a crime of violence and subjected him to a 16-Level Enhancement under the United States Sentencing Guideline Manual (USSG) 2L1.2. Upon review and analysis of Defendant's Colorado conviction, the Tenth Circuit concluded that indeed "felony menacing" was a crime of violence, and that the district court correctly calculated his sentence. The Court therefore affirmed the judgment of the district court.

Petitioner, a native and citizen of El Salvador, petitioned for review of a decision by the BIA affirming a decision of the IJ to deny petitioner's application for withholding of removal and withholding and deferral of removal under the Convention Against Torture (CAT). The court held that a conviction for residential burglary under California Penal Code 459 constituted a crime of violence and was a "particularly serious crime." Therefore, petitioner was ineligible for withholding of removal. The court also held that, although gang members beat up petitioner and his cousin in 2005, there was no evidence that those gang members knew petitioner or his cousin, nor that the gang members had any reason to hurt them. Further, there was no evidence that the gang members were looking for petitioner today. Therefore, petitioner failed to prove its was more likely than not that he would be tortured upon his return under the CAT. Accordingly, the petition was denied.

Pro se prisoner Petitioner Jakub Lonski appealed a district court's dismissal of his "motion for adjustment of sentence pursuant to a habeas petition." Petitioner claimed Canadian citizenship and was being held in New Mexico. He was convicted of a federal drug-related offense in California and sentenced to 42 months' imprisonment. He argued that because of his alien status rendering him ineligible for certain drug-treatment programs and residential re-entry programs made his sentence was harsher than ones imposed on citizen-prisoners. The Tenth Circuit found that district court correctly held that it had no jurisdiction to alter a sentence imposed by another court unless Congress had expressly authorized such action. On appeal, however, Petitioner changed his argument. Before the Tenth Circuit, he claimed that he should have been given a hearing so that he could complete deportation proceedings while in prison so that he could be immediately deported on release. The Tenth Circuit declined to consider Petitioner's new arguments, and affirmed the district court's denial of his motion.

Petitioner and his wife, citizens of Georgia, a former U.S.S.R. republic, entered the U.S. on visitor visas in 1999 and remained longer than authorized. In 2004, petitioner filed an affirmative application for asylum, withholding of removal, and protection under the Convention Against Torture, claiming that he had been persecuted for his political beliefs. Petitioner was thereafter placed in removal proceedings, where he renewed and updated his application for asylum. The Board of Immigration Appeals dismissed. The Third Circuit vacated and remanded. The adverse credibility determination was not supported by substantial evidence. Petitioner's due process rights were violated when the Immigration Judge "completely took over the cross-examination for government's counsel, and thereby ceased functioning as a neutral arbiter."