Justia Immigration Law Opinion Summaries

Mexican national Defendant-Appellant Nicolas Cobos-Chachas pled guilty to unlawfully reentering the United States after deportation. At sentencing, the district court varied downward from the advisory guidelines range and sentenced him to thirty-eight months' imprisonment, which was three months below the bottom of the advisory guideline range. Defendant challenged the length of his sentence as substantively unreasonable in light of the sentencing factors listed in the Guidelines. Upon review, the Tenth Circuit found that "Mr. Cobos-Chachas' own perception that the sentencing factors compel[ed] a more marked variance [did] not rebut the presumption that his below-guideline sentence [was] substantively reasonable." Accordingly, the Court affirmed Defendant's sentence.

Petitioner, a citizen of Pakistan, entered the U.S. in 1999 as a legal permanent resident based on his 1996 marriage to a U.S. citizen. They divorced in 2000. In 2005, the Department of Homeland Security initiated removal proceedings, charging petitioner as removable under 8 U.S.C. 1227(a)(1)(A), for being inadmissible upon entry, and under 8 U.S.C. 1182(a)(6)(C)(i), as an alien who attempted to procure a visa through fraud. The IJ concluded the marriage was fraudulent. The BIA affirmed, reasoning that the limitations period in 8 U.S.C. 1256(a) did not apply to petitioner because he obtained LPR status through consular processing, not by adjustment of status. The Third Circuit denied review. There was substantial evidence that the marriage was fraudulent.

Petitioner, a native and citizen of Cameroon, petitioned from an order of the BIA affirming the IJ's denial of asylum, but granting his application for withholding of removal. At issue was whether the government's prima facie showing of firm resettlement could be rebutted by an alien's showing that his ties to the third country into which he fled, in this case Guatemala, before coming here were formed before his last flight from persecution. The court held that firm resettlement was determined from the totality of the circumstances and that even ties formed in the third country prior to an alien's last flight from persecution were relevant to that determination. The court considered petitioner's arguments and found them to be without merit and therefore, based on the totality of the circumstances, denied the petition for review.

Petitioner, a native and citizen of China, sought review of the BIA's order affirming the IJ's decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture on the basis that her testimony regarding an alleged forced abortion was insufficient to carry her burden of proof and she failed to produce reasonably available corroborative testimony from her husband, an undocumented immigrant. The principal issue on appeal was whether substantial evidence supported the IJ's determination that petitioner failed to provide reasonably available corroborating evidence to support her claim. The court held that the IJ's determination that petitioner's testimony was insufficient by itself to meet her burden of proof was supported by substantial evidence; the IJ's determination that petitioner's husband was available to provide corroborating testimony was reasonable; and the IJ's consequent conclusion that petitioner had failed to meet her burden of proof, despite providing arguably credible testimony, was reasonable. Accordingly, the petition for review was denied.

Petitioner was convicted in New York for promoting prostitution in the third degree and subsequently sought review of the BIA's order declining to reconsider whether she had been convicted of an aggravated felony and dismissing her appeal from an order of removal. Petitioner argued that her offense did not constitute an aggravated felony because New York law defined "prostitution" more broadly than federal law did for the Immigration and Nationality Act (INA), 8 U.S.C. 1101(a)(43)(K)(i). The court held that because N.Y. Penal Law 230.25(1) punished conduct that did not involve a "prostitution business" as the term prostitution was used in the INA, petitioner's conviction did not constitute an aggravated felony. Thus, the BIA erred in finding petitioner removable. The court also held that because petitioner was not removable, the court need not address her challenge to the agency's denial of her application for asylum, withholding of removal, and CAT relief.

Petitioner Margarito Escalera Luevano applied for an adjustment of status during his removal proceedings based on his eligibility for an immigrant visa. He also requested an indefinite continuance in anticipation of the receipt of a visa. The immigration judge (IJ) determined he was not then eligible for adjustment of status and denied the request for a continuance because the anticipated visa would not be available for several years. The Board of Immigration Appeals (BIA) affirmed. Petitioner argued on appeal to the Tenth Circuit that the IJ abused his discretion in denying the requested continuance. He also claimed that the removal proceedings against him should have been terminated because his Fourth Amendment rights were violated. Petitioner admitted to the facts underlying the charge of illegal entry following a stop in Yellowstone National Park by Immigration officials, but withdrew his concession of removability because he believed the section of the Immigration and Nationality Act permitting adjustment of status rendered him nonremovable. The IJ denied his request for adjustment of status because no visa number was available and then ordered removal. Upon review, the Tenth Circuit concluded that although the agency cases permit, and may even require, an IJ to continue proceedings in order to await mere processing of a properly filed visa petition with a current priority date, there was no agency or court precedent for requiring an IJ to grant an indefinite continuance so that a petitioner may remain in this country while awaiting eligibility for adjustment of status. Petitioner was not eligible for adjustment relief at the time of his removal proceedings: "[m]oreover, [Petitioner] was unlikely to be eligible within a reasonably proximate time." Accordingly, the Court denied Petitioner's petition for review and motion to stay removal.

Petitioners Mihiretab Teshome Jobira and Beza Teshome Jobira petitioned the Tenth Circuit to review final orders of removal. The Jobiras are natives and citizens of Ethiopia. They claimed to be brother and sister. In September 2006, the Jobiras entered the United States on visitor visas. On the date their visas expired, they applied for asylum and protection under the United Nations Convention Against Torture (CAT). According to their applications, the Jobiras were arrested on several occasions in 2005 as a result of their activities organizing fellow high school students in support of the "Coalition for Unity and Democracy" (CUD). They alleged that during their detentions, they were interrogated, held in squalid conditions, and severely beaten or tortured. After hearing the Jobiras’ testimony, an immigration judge issued an oral decision denying relief and granting voluntary departure. The judge concluded the Jobiras’ story had not proven credible for a number of reasons. The Jobiras appealed the judge's denial to the Board of Immigration Appeals (BIA). A single member of the BIA dismissed their appeal. The Tenth Circuit concluded that the Jobiras failed to meet the persecution standards for asylum, and necessarily failed to satisfy the higher standards required for restriction on removal under the immigration laws or relief under the CAT. Accordingly, the Court affirmed the BIA's and immigration judge's decisions.

Defendant was convicted of illegal reentry in 2004, escape, and a second count of illegal reentry with a found-in date of June 7, 2007. Defendant appealed his conviction on the second illegal reentry offense, challenging the denial of his motion to dismiss based on violation of the 30-day preindictment time limit imposed by the Speedy Trial Act, 18 U.S.C. 3161(b). The court held that the Speedy Trial Act's 30-day preindictment time limit, which ordinarily ran from the date of the defendant's initial arrest, restarted when the underlying complaint was dismissed without prejudice and the charges were later refiled. In this case, the 30-day clock both started and stopped upon the filing of the second superseding indictment, which reinstated the dismissed illegal reentry charge. Therefore, there was no violation of section 3161(b) and the district court properly denied defendant's motion to dismiss.

Petitioner, a native and citizen of China, petitioned for review of the BIA's decision denying his applications for adjustment of status, asylum, withholding of removal, and protection under the Convention Against Torture. Petitioner also appealed both the IJ's denial of his motion for a continuance and the BIA's denial of his motion to remand to the IJ for reconsideration of his application for adjustment of status. The court held that substantial evidence did not support the IJ's finding, and the BIA's conclusion, that petitioner was married and thus ineligible for adjustment of status as the unmarried son of a United States citizen. The court also held that the IJ abused her discretion by denying petitioner's motion for a continuance, and the BIA erred in upholding the denial. Therefore, the court granted the petition as to petitioner's adjustment of status application and remanded to the BIA for further proceedings.

In consolidated petitions for review, petitioner challenged two decisions by the BIA: first, challenging the finding that she was statutorily ineligible for asylum, withholding of removal and protection under the Convention Against Torture (CAT) in the form of withholding of removal based on the terrorism bars in 8 U.S.C. 1158(b)(2)(A)(v); and second, challenging the finding that she was not entitled to deferral of removal under the CAT. The court held that because the BIA's conclusions that the Eritrean Liberation Front (ELF) was a terrorist organization and that petitioner engaged in terrorist activities were supported by substantial evidence and that the court lacked jurisdiction to address other arguments raised by petitioner, the court denied in part and dismissed in part those aspects of the petitions for review. The court held, however, that because the record compelled the conclusion that petitioner had demonstrated that it was more likely than not that upon a return to Eritrea she would be tortured by or with the acquiescence of the Eritrean government, the court granted relief of removal under the CAT.