Justia Immigration Law Opinion Summaries

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.

Petitioner, a native of Syria, entered the U.S. on a fiance visa, but did not marry within 90 days. More than a year after her visa expired, she conceded removability and sought asylum as a Christian, subject to persecution in a Muslim country. The immigration judge denied the petition as untimely and found that she did not establish a clear probability that she would be persecuted; the BIA dismissed an appeal. The Seventh Circuit dismissed for lack of jurisdiction. An alien must apply for asylum within one year of arrival unless the alien demonstrates to the satisfaction of the Attorney General either changed circumstances which materially affect eligibility for asylum or extraordinary circumstances relating to the delay in filing, 8 U.S.C. 1158(a); courts have no jurisdiction to review the Attorney General's determination. The denial of the petition to withhold removal was supported by substantial evidence.

Petitioner appealed the Board of Immigration Appeals' ("BIA") determination that it did not have jurisdiction to accept an appeal filed one day late due to a post office error. At issue was whether the 30 day deadline for filing a notice of appeal with the BIA was jurisdictional. The court held that the 30 day deadline must be read as a claim-processing rule that was not jurisdictional. The court also held that, since the BIA erred as a matter of law in concluding that it lacked jurisdiction, the court must remand to the BIA to permit it to fully reconsider whether, under the circumstances presented, it would hear the appeal from the immigration judge's decision in this case. The court also concluded that all the BIA needed to do to avoid subjecting aliens to the risk of losing their appeals due to bad weather or delivery service error was to allow people to send notices of appeal over the internet.

Petitioner, a native of Jamaica, sought review of an order of the Board of Immigration Appeals ("BIA") affirming the decision of an immigration judge denying his motion to terminate the removal proceedings brought against him, after his criminal convictions, on the grounds that he had not derived U.S. citizenship through the naturalization of his father. At issue was whether petitioner had been "legitimated" under Jamaican law within the meaning of 8 U.S.C. 1101(c)(1) even though his parents never married, with the result that he had obtained derivative citizenship as a consequence of the naturalization of his father. The court remained unsure as to the precise definition the BIA had adopted for determining whether a "child" had been "legitimated" under the law of a particular jurisdiction for purposes of section 1101(c)(1). The court was also unclear as to the legal and/or logical basis for the BIA's interpretation. Accordingly, the court remanded to the BIA to address these two issues and the petition for review was granted.