Justia Immigration Law Opinion Summaries

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.

Appellant Gabriela Cordova-Soto petitioned the Tenth Circuit for review of a Department of Homeland Security (DHS) order reinstating her prior removal order under 8 U.S.C. 1231 (a)(5). Appellant is a native and citizen of Mexico, who entered the United States as a child and became a lawful permanent resident in 1991 at the age of 13. In 2005, DHS initiated removal proceedings against Appellant charging her as removable on three grounds: (1) as an aggravated felon; (2) as an alien convicted of two crimes involving moral turpitude; and (3) as an alien convicted of a controlled substance offense. Appellant had three Kansas state-law convictions, including a 2005 conviction for felony possession of methamphetamine for which she was sentenced to a suspended jail term of twenty months and eighteen months' probation. Appellant was found in 2010 in Wichita, Kansas and identified as an alien who had previously been removed. No criminal charges for illegal reentry were lodged against her, but DHS issued a Notice of Intent/Decision to Reinstate Prior Order, advising Appellant that she was subject to removal. Appellant argued to the Tenth Circuit that: (1) her underlying removal order was not lawful; and (2) her reentry into the United States after her previous removal was not illegal. On these bases she maintained that reinstatement of her previous removal order was precluded. Upon review of the DHS's determination and the applicable legal authority, the Tenth Circuit concluded Appellant failed to establish that DHS misconstrued the meaning of "reenters the United States illegally" in Sec. 1231 (a)(5): she was removed from the United States in 2005, and she admittedly reentered the country without the Attorney General's authorization shortly thereafter. Because she could not have entered the United States legally at that time, her reentry was illegal and she was therefore subject to reinstatement of her previous removal order. Accordingly, the Court denied Appellant's petition for review.

Petitioner, a citizen of Laos and a lawful permanent resident of the United States, petitioned for review of the BIA's decision affirming the IJ's removal order. The court held that because the Attorney General and the BIA applied section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 1182(c), nunc pro tunc in In re L- and In re G-A- -- cases where an excludable alien had traveled and re-entered before being charged as deportable -- without regard to whether a statutory counterpart was charged in the deportation proceeding, and because the BIA failed to address whether this created a distinct basis for finding an impermissible retroactive effect, the petition for review was granted. The court directed the Attorney General to exercise his section 212(c) discretion to decide whether petitioner warranted a waiver of deportation.

Petitioner, a citizen of Mexico, filed a timely petition for judicial review following removal, asserting that his 2002 burglary conviction was not an aggravated felony that authorized expedited removal. The court held that, although it had jurisdiction to consider the aggravated felony issue under 8 U.S.C. 1252(a)(2)(D), the review was precluded because petitioner did not raise the issue in the administrative removal proceeding and petitioner's claim was based entirely on a post-removal state court order, evidence that was not part of the administrative record on appeal. Accordingly, the court denied the petition for review.

Petitioner, a native and citizen of Cuba and a lawful permanent resident of the United States, petitioned for review of the decision of the BIA affirming the IJ's order of removal rendered on the ground that he was inadmissible to the United States because he was convicted of a crime involving moral turpitude due to his conviction for false imprisonment under section 787.02, Florida Statutes. The court held that the BIA and the IJ erred by considering evidence beyond the record of petitioner's false imprisonment conviction to determine that he had been convicted of a crime involving moral turpitude. The court held, however, that because the BIA and IJ assumed without deciding that the Florida offense of false imprisonment was not categorically a crime involving moral turpitude, the court must remand to the BIA to determine in the first instance whether petitioner's false imprisonment conviction qualified as a conviction of a crime involving moral turpitude. Therefore, the court granted the petition and remanded for further proceedings.

Petitioner, a native and citizen of Peru, sought review of a decision by the BIA denying his motion to reopen on the ground that petitioner had failed to voluntarily depart. The court held that where, as here, a period of voluntary departure technically expired on a weekend or holiday, and an immigrant filed a motion that would affect his request for voluntary departure on the next business day, such period legally expired on that next business day. Accordingly, the court granted the petition for review and remanded to the BIA for adjudication of petitioner's motion to reopen on the merits.

Defendant appealed his sentence of 27 months imprisonment and three years of supervised release for illegal reentry after deportation. The court affirmed the judgment of the district court and held that the staleness of a prior conviction in the proper calculation of a guidelines-range sentence did not render a sentence substantively unreasonable and did not destroy the presumption of reasonableness that attached to such sentences. The court also rejected defendant's contention that the district court erred in failing to accord proper weight to his cultural assimilation.

Petitioner, a citizen of the Philippines, petitioned for review of the BIA's conclusion that petitioner's motion to reopen had not been timely filed and no exceptional circumstances warranted exercise of its discretionary authority to reopen proceedings sua sponte. The court held that the BIA did not abuse its discretion in denying the motion to reopen where petitioner failed to file the motion within the statutorily prescribed time limits and, even if petitioner had shown due diligence to excuse her lateness, she had not demonstrated prejudice based on ineffective assistance of counsel. The court also held that it lacked jurisdiction to review the BIA's decision on its own motion whether or not to reopen proceedings, since that decision was committed to agency discretion by law.

Petitioner, a citizen of Nigeria, petitioned for review of the BIA's decision affirming the IJ's denial of asylum, withholding of removal, and relief under the Convention Against Torture. The court held that substantial evidence supported the BIA's determination that petitioner was ineligible for asylum or other relief because he failed to demonstrate past persecution on account of his Christian religion or a well founded fear of future persecution if he were to return to Nigeria. Accordingly, the court denied the petition for review.

Petitioner, a citizen of Trinidad, entered the U.S. at age 16, for a 1987 track competition and remained beyond expiration of her visa. Before college, she was involved in a scheme in which a U.S. citizen, received money to claim to be her husband. Both admitted to the fraud, which petitioner attributed to her coach. No removal action followed. At college she met a U.S. citizen, who became her husband in 1999. They have sons, work, and own a home. Petitioner filed for adjustment of status based on the marriage, but the request was denied under 8 U.S.C. 1154(c) because of her involvement in the fraud. She conceded removability under 8 U.S.C. 1227(a)(1)(B), but contested the fraud allegation. Although she had 10 years of continuous presence, good moral character, and lack of certain criminal convictions, the IJ denied cancellation of removal under 8 U.S.C. 1229b(b)(1)(A)-(C), finding that petitioner had not shown that removal would cause her husband or children to suffer more hardship than would normally be expected under the circumstances. The BIA affirmed. The Sixth Circuit dismissed an appeal for lack of jurisdiction. Although petitioner is very sympathetic, the explicit preclusion of review of cancellation denials applies.