Justia Immigration Law Opinion Summaries

Petitioner, a Peruvian citizen, petitioned for review of the BIA's order affirming the IJ's decision that she was removable, and the IJ's denial of her applications for a waiver of removability and cancellation of removal. The court held that the plain language of 8 U.S.C. 1256(a) did not apply to removal proceedings; substantial evidence supported the IJ's and the BIA's finding that petitioner was removable under INA 212(a)(6)(C)(i), 8 U.S.C. 1182(a)(6)(C)(i); to the extent an interpreter was not present at the hearings addressing petitioner's applications for waiver of removability and cancellation of removal, petitioner had no cognizable due process interest because those forms of relief were discretionary; petitioner's claim that she was denied a full and fair hearing due to the IJ's purported bias was rejected; the court lacked jurisdiction to review the BIA's discretionary denial of petitioner's application of removability; and the court also lacked jurisdiction to review the BIA's denial of petitioner's application for cancellation of removal under INA 240A, 8 U.S.C. 1229b.

Petitioner, a citizen of the Dominican Republic, was admitted in 1991 as a conditional permanent resident. Upon her return to the United States from a 2007 trip, she was charged with inadmissibility as an alien convicted of a crime of moral turpitude (8 U.S.C. 1182(a)(2)(A)(i)(I)), arising from a 1999 conviction for receiving stolen property, criminal conspiracy, and criminal solicitation. She sought cancellation of removal based upon seven years of continuous residence (8 U.S.C. 1229b(a)). The immigration judge applied the "stop-time rule," 8 U.S.C. 1229b(d)(1)under which any period of continuous physical presence in the U.S. is deemed to end when the alien has committed an offense referred to in section 1182(a)(2). The BIA upheld the decision, ruling that a conviction record showing August 18, 1998 as the incident date established that her criminal conduct occurred before seven years of continuous residency had elapsed. The Third Circuit denied review. The phrase "has committed" in section 1229b(d)(1) means the stop-time rule is triggered either by an alien's criminal conduct occurring on a particular date before the end of the seventh year of continuous residence, or conduct that runs up to the date when the seventh year of residency ends.

This case arose when plaintiffs voluntarily filed applications for adjustment of status in reliance on the Ninth Circuit's opinion in Perez-Gonzalez v. Ashcroft, wherein the court purportedly held that individuals like plaintiffs were eligible for relief. The court held that plaintiffs' request for relief from the retroactive application of Duran Gonzales II to their applications for adjustment of status must be denied because (1) Duran Gonzales II itself applied its rulings to plaintiffs, thus giving the opinion retroactive application; and (2) another three-judge panel had reaffirmed that Duran Gonzales II applied retroactively and that, accordingly, plaintiffs were ineligible to receive I-212 waivers. Therefore, the district court's orders denying plaintiffs' motions to amend class certification and to file an amended complaint, and dismissing the action, were affirmed.

Petitioner, a native of Romania, entered the U.S. legally with a visa that allowed him to work as a driver for a particular company. He conceded removability after an inspection revealed that he had switched companies without authorization, in violation of the terms of his visa (8 U.S.C. 1227(a)(1)). The immigration judge found his testimony about being harassed and beaten by police in Romania plausible, but noted inconsistencies. The IJ concluded that petitioner did not have a well-founded fear of future persecution and denied asylum. The First Circuit denied review.

In 2006 defendant was convicted of various immigration crimes, including harboring five illegal aliens from Brazil (8 U.S.C. 1324), and sentenced to five years in prison. After the trial, but before sentencing, he was indicted for smuggling those same aliens into the country. The court denied a motion to dismiss. Defendant was convicted and sentenced to another five years. The First Circuit affirmed, rejecting an argument of successive prosecution in violation of defendant's due process rights. The Due Process Clause provides no greater protection than the Double Jeopardy Clause. Defendant conceded that each prosecution required proof of a fact that the other did not require so there was no double jeopardy violation. The district court conclusion that there was no "extraordinary misconduct" by the prosecution justifying a sentence below the mandatory minimum was within its discretion.

Petitioner, a native of Guatemala and a lawful permanent resident in the U.S. since 1980, faced removal as a result of a 1989 Illinois conviction for sexual abuse of a minor. He initially argued that he was not subject to removal because the judge who convicted and sentenced him issued a judicial recommendation against deportation. Before the immigration judge, petitioner's attorney conceded, without consulting his client, that the JRAD was invalid because it was entered outside the 30-day postsentencing window specified in the JRAD statute 8 U.S.C. 1251 (repealed in 1990). He retained new counsel, but the Board of Immigration Appeals held that prior counsel had waived the issue and denied a motion to reopen. The Seventh Circuit remanded. The JRAD was valid. Although it was entered about a month outside the 30-day postsentencing window, the state-court record confirms that the judge unequivocally indicated her intent to retain jurisdiction for the express purpose of considering a JRAD, and the JRAD entered without opposition from immigration authorities or the prosecutor.

Defendant Juan Alberto Saldivar-Munoz pleaded guilty to illegal reentry after previous deportation from the United States. In his plea agreement, Defendant preserved his right to appeal the district court’s grant of the government’s motion in limine to preclude the admission of evidence regarding his defenses of necessity or duress. On appeal to the Tenth Circuit, Defendant argued the district court erred in dismissing his proffered evidence in support of his necessity or duress defense. In 2007, Defendant was convicted of false impersonation. After serving a prison sentence, he was deported to Mexico in January 2008. But after several weeks, some members of a local gang approached him, saying they wanted him to run drugs over the border. Defendant was afraid of what the gang would do if he refused; several family members had paid thousands of dollars in ransom to gang members to used kidnapping as coercion. Defendant kept telling the gang he needed time to think about their proposal. But deadlines passed, and Defendant decided it was time to leave. Leaving his family behind, Defendant reentered the United States in late 2008. Upon review, the Tenth Circuit found that the district court did not abuse its discretion in concluding that Defendant failed to show he had no reasonable, legal alternative to violating the law: "[a]lthough some leeway needs be given to individuals responding to an emergency, they must still act in the most responsible manner available under the circumstances. … a defendant’s subjective belief that he has no available legal alternatives is insufficient to submit the question to a jury." Accordingly, the Court affirmed the district court's exclusion of Defendant's necessity or duress evidence.

Petitioner, a native and citizen of Ethiopia, petitioned for review of the BIA's decision affirming the IJ's conclusion that petitioner was statutorily ineligible for asylum and withholding of removal because petitioner's armed robbery conviction was "particularly serious." Petitioner had complained to the BIA that the IJ's decision failed to take into consideration several facts. However, all of the purported omissions related to petitioner's claim of a well-founded fear of persecution. The court concluded that the only way to give the BIA the opportunity to correct its own errors was to raise the "particularly serious" issue before the BIA, which defendant simply failed to do. Therefore, the court held that because petitioner did not exhaust the issue before the BIA, the court had no jurisdiction to consider whether or not his crime was "particularly serious." Accordingly, the petition was dismissed.

Petitioner Arther Deyke Kasonso petitioned the Tenth Circuit to review of a Board of Immigration Appeals (BIA) order denying his motion for reconsideration. His petition raised a single, narrow issue: whether the BIA abused its discretion in declining to apply the "disfavored group analysis" adopted by some of the other circuits, to determine whether Petitioner was entitled to restriction on removal. Petitioner, a native and citizen of Indonesia, entered the United States in 1994 on a non-immigrant visa and overstayed his six-month authorization. He received a notice to appear, conceded removability, and filed applications for asylum, restriction on removal, and relieve under the Convention Against Torture. He alleged past persecution and a well-founded fear of future persecution in Indonesia because he is a Christian. After a hearing, an immigration judge denied his applications for relief from removal, but granted him voluntary departure. The BIA dismissed his appeal. Petitioner then filed a motion for reconsideration and request to reopen his case. Upon review, the Tenth Circuit found that Petitioner did not argue that the BIA failed to follow its established policy to apply Tenth Circuit precedent or misapplied that law in his case. Nor did he provide any other basis for us to conclude that the BIA abused its discretion in denying his motion for reconsideration. Accordingly, the Court affirmed the BIA's decision and dismissed Petitioner's request for review.

Petitioner Sushma KC sought review of a Board of Immigration Appeals’ (BIA) denial of her motion to reopen or reconsider its previous decision denying her asylum, withholding of removal, and protection under the Convention Against Torture (CAT). After arriving in this country, KC filed timely applications for asylum, but on June 23, 2008, an immigration judge (IJ) denied her applications, and ordered her to voluntarily depart or be removed to her native Nepal. In his oral decision, the IJ noted the threats she received: "the most recent and graphic of them was that her head would be cut off [by Maoist insurgents] unless she paid 300,000 rupees." The IJ concluded, however, that KC failed to satisfy the "one central reason" test (see 8 U.S.C. 1158(b)(1)(B)(i)) which required showing that one of the central reasons the Maoists targeted her was because of her political beliefs. KC appealed to the BIA, which upheld the IJ’s decision. The BIA concluded that "[t]he Immigration Judge reasonably determined based on the record as a whole that the Maoists’ demands for money were acts of extortion not related to the respondent’s political opinion." In addition, the BIA denied KC’s motion to remand her case to the IJ so that he could consider additional evidence concerning her husband’s disappearance. Because the BIA adopted the IJ’s analysis without further explanation, both to dismiss KC’s appeal and to deny reconsideration, the Tenth Circuit held that the BIA’s decision lacked "rational explanation." Accordingly, the Court held that the BIA abused its discretion, and remanded the case for further consideration. The Court affirmed the BIA in all other respects.