Justia Immigration Law Opinion Summaries

Petitioner Ioan Vasilu petitioned the Tenth Circuit for review of a removal order from the Board of Immigration Appeals (BIA). The BIA affirmed an immigration judge's determination that Petitioner was removable as a criminal alien. The Tenth Circuit determined that it lacked jurisdiction to hear the case. The Court found that Petitioner attempted to "collaterally attack" the underlying criminal conviction he received prompting his removal. Accordingly, the Tenth Circuit dismissed Petitioner's application.

Husband and wife appealed the BIA's denial of wife's motion to reopen her case to consider her application for adjustment of status after the IJ made an express adverse creditability finding against husband and wife and denied their claims for relief on that basis. At issue was whether lying to the immigration authorities was a sufficient basis for an adverse creditability finding and whether a lie uttered by one spouse could fairly be attributed to the other. The court affirmed the BIA's denial of wife's motion and held that discovering husband and wife knowingly received the government for years was a perfectly good reason not to believe their testimony. The court also held that it did not matter which spouse told the lie, and which one tacitly assented, where the IJ reasonably concluded that husband and wife were executing a common plan to deceive the asylum officer and reasonably believed both of them.

Defendant appealed from the sentence imposed by the district court following his guilty plea to one count of attempted reentry after deportation. At issue was whether the district court committed reversible error by applying a 16 level increase to the offense level pursuant to U.S.S.G. 2L1.2(b)(1)(A)(ii). The court held that defendant failed to satisfy the applicable plain error standard of review with respect to the district court's determination that he was previously convicted of a "crime of violence," namely, "statutory rape." The court also held that the district court did not otherwise abuse its discretion or impose a sentence that was either procedurally erroneous or substantively unreasonable. Accordingly, the court affirmed the sentence entered by the district court where the district court provided a thorough explanation for its determination, appropriately responded to the various arguments made by defense, did not give undue weight to the Guidelines, and reasonably took into account defendant's prior record as well as several mitigating factors.

Petitioner sought review of a final order of removal, issued after a determination that he was ineligible for a "hardship waiver" of the requirements for filing a joint petition with his citizen spouse to lift the conditions on his residency. At issue was whether the agency erred as a matter of law by placing upon petitioner the burden of establishing that his qualifying marriage was entered into in good faith; whether the wrong standard was applied for assessing eligibility for a hardship waiver; and whether an erroneous assessment was made in weighing the evidence. The court held that the allocation of the burden of proof was proper where it was consistent with the applicable statutory structure and intent; that the agency articulated the proper legal standard for demonstrating a good faith marriage where the immigration judge's consideration of the course of the relationship after the wedding, in order to ascertain an alien's intent at the time he entered his marriage, was entitled to deference; and that the agency properly determined that petitioner was ineligible for the relief he sought where the amount of weight to be accorded any particular fact raised no question of law and was not within the court's jurisdiction to review the agency's determination. Accordingly, the petition for review was denied.

Petitioner appealed the BIA's decision rejecting the IJ's conclusion that petitioner met the seven years of continuous residence requirement by finding that she was admitted in any status on the day she became the beneficiary of an approved I-130, Petition for Alien Relative. Instead, the BIA determined than an alien with an approved Form I-130 and a pending adjustment of status application only had a pending application of admission and was therefore, not admitted in any status. Therefore, the BIA concluded that petitioner did not meet the seven years of continuous residence requirement for cancellation of removal. The court held that an approved Form I-130 did not confer admission status on an undocumented alien for purposes of showing seven years of continuous residence under 28 U.S.C. 1229b(a)(2). The court also held that an approved Form I-130 petition merely provided an undocumented alien permission to apply for adjustment of status. Accordingly, the petition for review was denied.

Petitioner appealed the BIA's decision rejecting the IJ's conclusion that receiving an employment authorization document was comparable to being a participant in the Family Unity Program. Instead, the BIA found petitioner ineligible for cancellation of removal because he had not met his seven years of continuous residence, which it determined began on the date his application for adjustment of status was approved. The court held that the grant of employment authorization, pending the approval of adjustment of status to that of an LPR under 8 U.S.C. 1255 did not confer admission status as an undocumented alien for purposes of calculating seven years of continuous residence under 8 U.S.C 1229(a)(2). The court also held that employment authorization, under 8 C.F.R. 274a.12(c), merely allowed such alien the right to work while his or her application for adjustment was being adjudicated. Accordingly, the petition for review was denied.

In 2009, when Dodge City police officers pulled Defendant Eusebio Sierra-Ledesma over for speeding, they found that Defendant had been deported in 2008 with no new authority to reenter or remain in the U.S. A jury convicted Defendant of having been found in the U.S. illegally. Defendant appealed to the Tenth Circuit, arguing multiple errors at trial. The sum of Defendant's argument was that the government failed to prove its case against him. Upon review of the trial record and the applicable legal authority, the Tenth Circuit was "satisfied" that any error committed at trial was harmless. The Court found that the trial court instructed the jury multiple times throughout that Defendant was innocent until the government proved he was guilty beyond a reasonable doubt. Furthermore, the record reflected substantial evidence to support the jury's verdict. Accordingly, the Court affirmed the jury's verdict.

On the morning his trial was set to commence, Defendant Mario Ochoa-Olivas pled guilty to one count of illegal reentry to the United States. Using the Sentencing Guidelines, the district court calculated an advisory range of ninety-two to one hundred fifteen months' imprisonment. The court ultimately settled on an eighty-month term. Defendant appealed the sentence, arguing that the district court "double counted" points given to his criminal history, thus leading to an unreasonable sentence. In this case, the Tenth Circuit held that "[w]e are bound by precedent and cannot say that the district court abused its discretion" when it reviewed Defendant's sentence in light of the Sentencing Guidelines and his criminal history. The Court affirmed the district court's calculation of Defendant's sentence.

Mother, a native of Russia, first entered the U.S. in 1999 to seek a doctor for her son and left without seeking asylum. Mother and son returned and overstayed their visitors' visas. When the Department of Homeland Security initiated removal, they sought asylum based on fear of persecution for their political belief in a fee economy and refusal to make mafia payments. An immigration judge denied withholding of removal and the BIA affirmed. The Sixth Circuit dismissed appeal of the petition for asylum for lack of jurisdiction. The immigration judge correctly found the petition untimely, based on a factual finding that nothing prevented petitioner from applying within a year of entering the country. Affirming denial of withholding removal, the court stated that the petitioner did not establish that she would more likely than not suffer persecution if returned to Russia. The court noted several inconsistencies in her claims.

Petitioner, a native of Guatemala, filed a petition of review of the Department of Homeland Security's decision to reinstate an immigration judge's 1989 order of deportation pursuant to post-Illegal Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), 8 U.S.C. 1231(a)(5), reinstatement provision 241(a)(5). At issue was whether the reinstatement provision, enacted as part of the IIRIRA, applied retroactively to a petitioner who applied for discretionary relief prior to IIRIRA's effective date. The court held that the application of section 241(a)(5) was permissibly retroactive when it applied to such petitioners in light of Landgraf v. USI Films Prod. Accordingly, the court granted the petition for review in part and remanded for further proceedings. Because the court lacked jurisdiction to review agency determinations of eligibility for special rule cancellation of removal under section 203 of the Nicaraguan Adjustment and Central American Relief Act of 1997 ("NACARA"), however, the court denied the petition in part.