Justia Immigration Law Opinion Summaries

Defendant-Appellant Uriel Santos-Santos appealed his sentence for illegal reentry after deportation subsequent to an aggravated felony conviction. He contended that the district court erred in applying a 16-level offense adjustment pursuant to the U.S. Sentencing Guidelines resulting in a 57-month sentence. Defendant, a Mexican citizen, was convicted in California of (1) inflicting corporal injury on a spouse with a specified prior conviction within seven years and (2) assault by means of force likely to produce great bodily injury. In 2007 he was deported to Mexico, but in January 2010 immigration officials discovered him in Arapahoe County Jail in Centennial, Colorado. That April, Defendant pled guilty to the federal offense. The Presentence Report, on the basis of Defendant's California assault conviction, reflected an offense adjustment of 16 offense levels for defendants who have unlawfully reentered after a conviction for a "crime of violence." This produced an advisory Guideline range of 57-71 months' imprisonment. Defendant unsuccessfully objected to the PSR. Upon review of the applicable legal authority, the Tenth Circuit concluded that the California convictions were "crimes of violence" under the Sentencing Guidelines. Because the district court did not err in enhancing Defendant's sentence based on those convictions, the Tenth Circuit affirmed the district court's judgment.

Defendant appealed his conviction for illegal reentry after deportation. Defendant argued that during the time it took an officer to call the Bureau of Immigration and Customs Enforcement (ICE), he was subjected to an unconstitutional seizure because calling ICE unlawfully prolonged the routine traffic stop. Thus, defendant appealed the district court's denial of his motion to suppress his fingerprints, which were obtained when he was later transported to an ICE office and questioned. Because the court concluded, under the totality of the circumstances, that the officer's call to ICE did not unreasonably prolong the seizure, the court affirmed the judgment.

In 1991, petitioner, a citizen of Guatemala, was taken into custody by immigration officials while crossing the Rio Grande. He applied for asylum, but did not appear at a hearing. A deportation order issued. In 2001 petitioner sought to reopen and an immigration judge held hearings and found that the Nicaraguan Adjustment and Central American Relief Act, 111 Stat. 2193, 2644 did not apply because petitioner was apprehended "at the time of entry." With respect to asylum, the IJ found that petitioner had a well founded fear of future persecution if he returned to Guatemala as "a member of a particular social group composed of family returning to Guatemala after lengthy residence in the United States perceived as wealthy and, therefore, particularly susceptible to extortionate and/or kidnapping demands." The BIA reversed with respect to asylum. The First Circuit denied review.

Petitioner, a citizen of Morocco, entered the U.S. as a visitor in 1998, married a citizen. and adjusted his status to that of a lawful permanent resident on a conditional basis. When he filed an I-751 petition to remove the conditions on his residency, he falsely represented that he and his wife were living together. The falsehood came to light, and in 2006, he pled guilty to conspiracy to commit application fraud and was convicted under 18 U.S.C. 371 for conspiring to violate 18 U.S.C. 1546(a). An immigration judge found petitioner removable and denied a petition for waiver under 8 U.S.C. 1227(a)(1)(H). The Board of Immigration Appeals dismissed an appeal, finding that petitioner was removable as a result of his conspiracy conviction and was not eligible for waiver. The Seventh Circuit denied appeal. A conviction for conspiracy to violate 18 U.S.C. 1546 is grounds for removal under paragraph (3) of 8 U.S.C. 1227(a), and not under paragraph (1), so petitioner is ineligible for a 1227(a)(1)(H) waiver.

Petitioner, a native of Jamaica, petitioned for review of a removal order of the BIA. After he pled guilty of possessing marijuana with intent to distribute in Georgia, DHS charged petitioner with being removable for this crime, which it contended should be considered a felony under the Controlled Substances Act (CSA), 8 U.S.C. 1227(a)(2)(A)(iii), and an "aggravated felony" under immigration law. The IJ agreed, and on appeal, the BIA endorsed the felony classification and dismissed petitioner's appeal. The court adopted the First and Sixth Circuits' approach that the default punishment under 21 U.S.C. 841 was a felony. Consequently, as was true for federal defendants charged under section 841, petitioner's crime was equivalent to a federal felony where petitioner failed to meet his burden of proving that he was convicted of only misdemeanor conduct. Petitioner's other arguments were without merit. Therefore, the petition for review was denied.

Petitioner, born in 1984, is a citizen of Honduras. He came to the U.S. in 2004 without being admitted. In Removal proceedings, petitioner sought asylum, withholding of removal, and relief under the Convention Against Torture, claiming that he fled Honduras because members of a criminal gang had threatened to kill him, that he filed police reports, but received no response, and that he was kidnapped by gang members and beaten before being freed by Guatemalan police. The Immigration Judge denied the applications although he found no reason to disbelieve the testimony. The Board of Immigration Appeals affirmed. The Third Circuit vacated. On remand, the BIA again concluded that petitioner failed to show that he had experienced past persecution or had a well-founded fear of future persecution on account of a classification that is protected under the INA. The Third Circuit remanded the asylum and withholding of removal applications, but denied the petition for review on the claim under the Convention Against Torture. The BIA's addition of the requirements of "social visibility" and "particularity" to its definition of "particular social group" is inconsistent with its prior decisions, and the BIA has not announced a "principled reason" for its adoption of those inconsistent requirements. The court acknowledged that there was no evidence that the gang knew of petitioner's political opinion and targeted him because of it and that evidence support the BIA finding that the Honduran government seeks to combat the gang problem and protect its citizens.

A citizen of Côte d’Ivoire, charged with removability as an alien present without having been admitted or paroled, applied for asylum, withholding of removal, Convention Against Torture protection, and cancellation of removal. The Immigration Judge found petitioner not credible, relying on an inconsistency in a medical record. After filing a notice of appeal, petitioner's new counsel discovered that the medical record had been translated incorrectly and submitted an affidavit from the company that translated the record and a corrected translation. The Sixth Circuit stayed the appeal to allow consideration by the Board of Appeals because the translation error appeared to have contributed substantially and directly to the adverse credibility determination.

Petitioner, a native and citizen of the Republic of Cameroon, petitioned for review of the BIA's order affirming the denial of her claims for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The court concluded that the IJ committed multiple legal errors where the IJ erroneously (1) applied the rules of evidence; (2) suggested that corroborative evidence required further corroboration; and (3) discredited documents as unauthenticated under the immigration regulations without providing petitioner an opportunity to authenticate them by other means and without otherwise providing sound, cogent reasons for rejecting them. The IJ's factual findings were not supported by substantial evidence, but by inaccurate perceptions of the record or by speculation and assumption. The court held that the BIA erred in failing to recognize the IJ's multiple errors concerning important aspects of petitioner's claims, rendering the BIA Order manifestly contrary to law and an abuse of discretion. The court granted the petition for review, vacated the BIA Order, and remanded for further proceedings.

Petitioner, a native and citizen of Mexico, petitioned for review of an order of the BIA upholding the IJ's denial of registry, cancellation of removal, and voluntary departure on grounds of alleged constitutional violations and that as a matter of law the administrative record could not support a finding that he lacked good moral character. The court held that the court lacked jurisdiction to review some of petitioner's claims and where the court did possess jurisdiction, petitioner's claims failed on the merits. Therefore, the court denied the petition for review in part and dismissed in part.

In 2009, Defendant Antonio Molina-Chavez pled guilty in the New Mexico district court to illegally reentering the United States. The court sentenced him to eight months in prison to be followed by a two-year term of supervised release. In November 2009, Defendant completed his prison term and the Department of Homeland Security removed him to Mexico. A year later, before his supervised release term had expired, Defendant was arrested in Tulsa, Oklahoma on a public intoxication charge. This arrest had two consequences relevant here: (1) Defendant was charged in federal court with illegally reentering the United States to which he pled guilty and was sentenced to ten months’ incarceration; (2) the district court revoked his 2009 supervised release and sentenced him to an additional five months in prison, to be served concurrently with the ten-month sentence on the illegal reentry charge. On appeal from both convictions, Defendant argued that the Oklahoma district court should have (1) permitted him to withdraw his guilty plea, and (2) dismissed the order revoking his supervised release. He contended that ambiguities in his 2009 New Mexico sentence provided him with authorization to reenter the United States legally. The Tenth Circuit disagreed, and therefore affirmed the district court’s judgment and sentence for illegal reentry. The Court dismissed Defendant's appeal concerning revocation of his supervised release as moot.