Justia Immigration Law Opinion Summaries

Petitioners, husband and wife, are Macedonian Slavs. In 2001 husband was drafted into the Macedonian Army. He refused to report, because he disapproved of government efforts to suppress Albanian demands for greater rights. In 2002 husband and pregnant wife were victims of a home invasion; assailants held a gun and stated that petitioners were "betrayers of Macedonia" and "did not participate in the war." The assailants fondled wife, beat husband, and stole money and jewelry. Police arrived six hours later and implied that the assailants were fellow police, more influential because of their paramilitary character. Petitioners fled, arriving in the United States without a visa. Removal proceedings were instituted. Requests for asylum and other relief were denied. The Board of Immigration Appeals affirmed. The Seventh Circuit granted the petition and remanded. Withholding of removal (8 U.S.C. 1231(b)(3)) requires a determination that the applicant will more likely than not be subjected to persecution if removed from the United States. A finding of past persecution creates a rebuttable presumption of future persecution. What happened to the petitioners was persecution, not just harassment. The statement that there is no evidence of human rights abuses by the Macedonian army in 2001 ignored the State Department's country report.

Petitioner, a native of Mexico, entered the United States illegally in 1987, married the next year, eventually raising three children, and remained until returning briefly to Mexico in August 2001. Border Patrol apprehended her as she attempted to re-enter. In custody, petitioner completed a Form I-826 "Notice of Rights and Request for Disposition" in which she admitted her illegal presence, waived a hearing, and agreed to return to Mexico. In May 2003, she was apprehended in an unrelated immigration raid. She applied for cancellation of removal, but the Immigration Judge found her ineligible. The Bureau of Immigration Appeals and Seventh Circuit affirmed. The 2001 border apprehension and subsequent decision to admit illegal presence and return to Mexico had the effect of a break in continuous physical presence within the United States (8 U.S.C. 1229b(b)(1)(A)). The incident amounted to a formal, documented process; petitioner was taken into custody and the form adequately explained the legal consequences.

Appellant illegally reentered the United States in 2007 and pled guilty to being an alien found in the United States after having been convicted of aggravated felonies and deported. Appellant challenged the district court's decision to impose a 16-level enhancement to his base level offense score pursuant to U.S.S.G. 2L1.2(b)(1)(A), where the district court based the enhancement on its finding that the North Carolina statute under which appellant previously was convicted, N.C. Gen. Stat. 14-202.1, constituted "sexual abuse of a minor" and thus, was a "crime of violence" pursuant to the Sentencing Guidelines. The court affirmed the judgment of the district court and held that the Padilla-Reyes v. United States definition of "sexual abuse of a minor" was at least as broad and inclusive as section 14-202.1 and where appellant failed to demonstrate any North Carolina precedent that did not fit within the broad contours of the definition in Padilla-Reyes. Accordingly, the judgment of the district court was affirmed.

Defendant Ramon Vasquez-Alcarez pled guilty to illegally reentering the United States after he was deported for an aggravated felony conviction. He was sentenced to 27 months' imprisonment, which fell at the low end of the Sentencing Guidelines range. The sentence reflected an enhancement for Defendant's 1995 cocaine trafficking conviction. On appeal, Defendant argued that the district court placed too much weight on the 1995 conviction because it was stale. Therefore, Defendant challenged his sentence as substantively unreasonable. After this appeal was filed, the Sentencing Commission proposed an amendment to the Sentencing Guidelines that, had it been in effect at the time of Defendant's sentence, would have resulted in a lower level enhancement. Defendant contended that the proposed amendment helped his argument that the sentence he received was unreasonable. Upon review of the amendment and the district court's record, the Tenth Circuit was not persuaded by Defendant's argument. The Court found that the district court did not err or abuse its discretion by handing Defendant a 27-month sentence. Accordingly, the Court affirmed Defendant's sentence.

Defendant Crescencio Ochoa-Tovali pled guilty to reentering the United States as a previously removed alien in violation of federal law. He was sentenced to 57 months' imprisonment. This sentence reflected Defendant's criminal history that included a 1995 robbery conviction and a 1993 probation revocation. On appeal, Defendant argued that the district court weighed too heavily his 1993 and 1995 offenses and weighed too lightly his reason for reentering the United States. Defendant challenged his sentence as substantively unreasonable. Upon careful consideration of the lower court's record, as well as Defendant's criminal history, the Tenth Circuit found the sentence was not substantively unreasonable. The Court affirmed Defendant's sentence.

Defendant Alvaro Madriz-Castillo appealed his 57-month sentence for unlawful reentry as a previously deported alien. He contended that the sentence was procedurally and substantively unreasonable. Upon review, the Tenth Circuit found that the district court adequately explained Defendant's sentence, and he did not overcome the presumption that his sentence was not unreasonably long. Accordingly, the Court affirmed Defendant's sentence.

Petitioner, who was born in Jamaica and admitted into the United States as a lawful permanent resident in 1993, petitioned for review of the BIA's decision that the IJ correctly determined that petitioner was removable. The BIA, however, did not rule on the issues of the government's delay in adjudicating petitioner's citizenship application or the government's interpretation of the applicable statutes because the BIA determined that it lacked jurisdiction over applications for naturalization. Petitioner first argued that the government should be equitably estopped from deporting him because he should have been granted citizenship based on the application his father filed before he turned eighteen. Petitioner's second argument was that the BIA erred in holding that it did not have jurisdiction to terminate the removal proceedings to give him an opportunity to pursue his citizenship claim. The court held that petitioner admitted that he was told in 1999 that he was not a citizen and neither he nor his father adequately followed up on the naturalization application. Accordingly, the court held that petitioner was not entitled to the remedy of equitable estoppel. The court held that the BIA did not have authority to look beneath or second-guess the Department of Homeland Security's determination that he was not eligible for naturalization. Therefore, the court agreed with the BIA's decision that it did not have jurisdiction to terminate petitioner's removal proceedings. Accordingly, the court denied the petition for review.

Petitioner, a native and citizen of Guatemala, was convicted twice for second-degree commercial burglary when he was arrested for walking out of a supermarket with unpaid items on two separate occasions. As a result, the BIA found him removable as an alien convicted of an aggravated felony and also as an alien convicted of two crimes involving moral turpitude (CIMTs). Petitioner petitioned for review, challenging the determinations that the prior convictions were grounds for removal. The court held that the BIA erred in holding that petitioner's convictions were generic attempted theft offenses where simply entering a commercial building was not in itself "a substantial step" supporting attempted theft liability. The court also held that the BIA erred in concluding that the convictions qualified as CIMTs, either because it misapprehended the elements of the crime of conviction or because it misread caselaw. Therefore, the court granted the petition for review and vacated the order of removal.

Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's decision dismissing his appeal from an IJ's decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Petitioner argued on appeal that he acted as a whistleblower against government corruption and that the BIA erred in denying his claims for asylum, withholding of removal, and relief under the CAT. The court held that the BIA erroneously denied asylum and withholding of removal based on its conclusion that petitioner failed to establish a nexus to political activity. Therefore, the court granted the petition for review and remanded to the BIA for consideration of whether the government had met its burden to rebut the presumption that petition had a well-founded fear of future persecution on the basis of his whistleblowing activities. The court also held that the BIA improperly placed the burden on petitioner to show that he could not relocate within Mexico and failed to apply the presumption of a nationwide threat. Therefore, the court vacated the BIA's decision regarding the CAT relief and remanded for the agency to determine whether the government met its burden.

Defendant appealed from his conviction and sentence for reentry after deportation. Defendant contended that his deportation was invalid because the IJ failed to advise him of his eligibility for voluntary departure. The government claimed that the court need not reach that question because defendant waived his right to appeal. The court held that appellate waiver, negotiated by the district court at sentencing in exchange for a reduced sentence, was invalid and unenforceable. In a memorandum disposition filed contemporaneously with the opinion, the court held that the IJ failed to adequately advise defendant of his ability to apply for voluntary departure, and the court remanded for the district court to determine whether defendant was prejudiced by that failure.