Justia Immigration Law Opinion Summaries

This appeal presented the Tenth Circuit with two questions related to the presence of "fast-track" programs for disposing of illegal re-entry and other immigration offenses in some federal districts, but not others. The first question was whether a sentencing court in a non-fast-track district has the discretion to consider sentence disparities caused by the existence of fast-track programs in other districts, and based thereon, vary from the applicable guideline range for a defendant charged with an immigration offense. If so, the second issue was whether the "apparently nebulous" eligibility requirements for fast-track programs relieve a defendant charged with an immigration offense in a non-fast-track district of the burden of showing entitlement to sentencing consistent with a fast-track program. Upon review, the Tenth Circuit held that (1) where the circumstances warrant, a district court in a non-fast-track district has the discretion to vary from a defendant’s applicable guideline range based on fast-track sentence disparities, but (2) a defendant bears the initial burden of showing entitlement, in some sense, to a variance based on fast-track sentence disparities.

Petitioner entered the U.S. from Mexico illegally and married another undocumented alien. Their three children are U.S. citizens. Removal proceedings began after he was convicted for DUI at least four times, for driving without a license three times, and for other driving offenses. An immigration judge denied a petition for cancellation of removal, finding that petitioner lacked the requisite "good moral character." The Board of Immigration Appeals agreed. The Seventh Circuit dismissed for lack of jurisdiction, noting its bewilderment at an attempt to argue due process. Aliens do not have a liberty or property right in cancellation of removal; it is a discretionary matter. The determination of good moral character is not a matter of law, but an administrative decision not subject to judicial review.

Petitioner, a citizen of the Dominican Republic, entered the U.S. in 1982 and became a lawful permanent resident. About 10 years later he pled guilty to armed robbery. Later he pled guilty to auto-stripping. Upon his return from a 2003 trip he was denied readmission, then paroled. During removal proceedings petitioner conceded that second-degree robbery was a crime of moral turpitude, but contended that his conviction should be waived under former 8 U.S.C. 1182(c)). The immigration judge rejected the argument, finding that auto-stripping is also a crime of moral turpitude. The BIA affirmed and petitioner was removed. In 2010 petitioner requested that the BIA reopen in light of the 2010 Supreme Court decision, Padilla v. Kentucky. Petitioner claimed ineffective assistance of counsel because his attorney did not inform him of the immigration consequences of a guilty plea. The BIA denied the motion. The First Circuit denied appeal. Aliens have a right to move to reopen removal proceedings, 8 U.S.C. 1229a(c)(7)(A), within 90 days of a final order. The BIA was within its discretion in refusing to waive the limit, given that petitioner made no attempt to have his state law convictions overturned.

Defendant, a lawful permanent resident of the U.S. shared a home. When his housemate's visa expired and he was unable to obtain work, defendant allowed the housemate, for a nominal fee, the use of his driver's license and social security card. He obtained employment in defendant's name. Defendant was convicted of aiding and abetting aggravated identity theft, 18 U.S.C. 1028A. The First Circuit affirmed, rejecting an argument that, because he permitted the use of his documents, there was no theft. The statute does not require that the means of identification be stolen or otherwise illicitly procured. The prosecutor's statements about a witness having "no axe to grind," even if improper, did not require a new trial.

Defendant purchased an expired passport and a social security card and attempted to use them to obtain a passport with his picture. He entered a plea of guilty to two counts of making false statements in a passport application, 18 U.S.C. 1542, one count of unlawful re-entry of a deported alien, 8 U.S.C. 1326, and aggravated identity theft, 18 U.S.C. 1028A, and received a 70-month prison sentence. The First Circuit affirmed, finding that the plea was knowing and voluntary. The court rejected an argument that, because defendant bought, rather than stole, the passport, the identity theft was not a use of documents "without lawful authority." The sentence was procedurally and substantively sound; in light of defendant's criminal history, it was at the bottom of the Guidelines range.

Petitioner petitioned for review of the BIA's dismissal of his appeal of an IJ's decision denying his application for cancellation of removal. The BIA concluded that petitioner's 1992 parole as a Special Immigrant Juvenile did not qualify as an admission "in any status" as required by 8 U.S.C. 1229b(a)(2) and, as a result, found petitioner statutorily ineligible for cancellation of removal because he did not establish seven years of continuous physical presence after having been "admitted in any status." The court disagreed and held that parole as a Special Immigrant Juvenile under 8 U.S.C. 1255(h) qualified as an admission "in any status" for the purposes of section 1229b(a)(2). Therefore, the court granted the petition and remanded to the BIA for further proceedings.

A citizen of Guatemala unlawfully entered the U.S. in 1989. In 1997 he was convicted, in Massachusetts, of willful and malicious destruction of property and two counts of assault and battery. The convictions were the result of domestic violence incidents; he has no children. In 2007 he was charged as removeable under 8 U.S.C. 1182(a)(6)(A)(i). An Immigration Judge rejected his motion to cancel removal under the cancellation of removal (8 C.F.R. 1240.64, 1240.66) under the Nicaraguan Adjustment and Central American Relief Act. The BIA affirmed. The First Circuit held that it lacked jurisdiction to review the determination that petitioner did not warrant a favorable exercise of discretion. Petitioner's due process rights were not violated by the handling of his case.

Petitioner, a native and citizen of Mexico, petitioned for review of a decision of the BIA that dismissed his appeal, finding that evidence of his alienage was admissible and that removal was proper despite the hardship he alleged it would impose on his family. The court held that, even assuming that the search and seizure here constituted a violation of the Fourth Amendment, any such violation was not egregious. Any evidence ICE obtained, by virtue of petitioner's arrest by local officers, was admissible and sufficient to establish petitioner's alienage and removeability. The court also held that it lacked jurisdiction to review the BIA's hardship determination because it was a discretionary decision barred from appellate review. Accordingly, the court denied the petition.

Petitioners (father, mother, and four children), natives and citizens of Guatemala, petitioned for review of the BIA's order affirming the IJ's decision that the mother and father's monetary assistance to their children amounted to "alien smuggling" pursuant to section 212(a)(6)(E) of the Immigration and Nationality Act, 8 U.S.C. 1101 et seq. Mother and father had sent several thousand dollars to each child at a hotel in Mexico and each child would subsequently arrive illegally in the United States promptly thereafter. The court held that because the IJ and the BIA properly interpreted and applied the "alien smuggling" provision, the court denied the petition for review.

Migrant workers who worked for defendant appealed a summary judgment in favor of defendant and against their complaint that defendant violated the Fair Labor Standards Act (Act), 29 U.S.C. 203(m). At issue was whether an employer that hired migrant farm workers through the H-2A visa program was entitled to wage credits under the Act for housing and meals that federal law required the employer to provide the workers. The court deferred to the Secretary of Labor's interpretation that defendant could not credit the cost of housing in the wages paid to the workers and agreed with defendant that it was entitled to wage credits for the costs of meals for the workers. The court also concluded that defendant was not liable under principles of agency law for the fees that third parties charged the workers related to their efforts to obtain employment with defendant. Accordingly, the court affirmed in part, reversed in part, and remanded.