Justia Immigration Law Opinion Summaries

Petitioner Francis Efagene petitioned the court for review of a final order issued by the Board of Immigration Appeals (BIA). Petitioner was admitted to the United States as a lawful permanent resident in 1991. In 2005, Petitioner plead guilty to a sexual misconduct misdemeanor in the State of Colorado, and was sentenced to 364 daysâ imprisonment. Part of his sentence required that he register as a sex offender for a ten year period. Petitioner served his time. In 2007, he failed, however, to meet the registration deadline and was rearrested. He plead guilty to the misdemeanor of failure-to-register as a sex offender and was sentenced to thirty daysâ imprisonment. The U.S. Department of Homeland Security (DHS) charged Petitioner as âremovableâ for having been convicted of two crimes involving moral turpitude. Petitioner challenged his removability status before an Immigration Judge (IJ), arguing that failing to register is not a crime of moral turpitude. The IJ disagreed and ordered Petitioner to be deported. In an unpublished order, the BIA affirmed the IJâs decision and dismissed Petitionerâs appeal. The Tenth Circuit stayed Petitionerâs case and found upon later review that the BIAâs lacked jurisdictional authority to interpret the State of Coloradoâs misdemeanor failure-to-register statute as one involving âmoral turpitude.â The Court reversed the BIAâs decision and vacated Petitionerâs deportation order.

Defendants, in consolidated appeals, appealed their convictions for violations of 8 U.S.C. 1325(a)(1) for attempting to travel by boat from Saipan in the Commonwealth of the Northern Mariana Islands ("CNMI") to the Territory of Guam by boat. At issue was whether defendants violated section 1325(a)(1) for being aliens who knowingly and willingly attempted to enter the United States at a time and place other than as designated by immigration officers on or about January 5, 2010, a date within Title VII of the Consolidated Natural Resources Act of 2008's ("CNRA"), 48 U.S.C. 1806-1808, transition period. The court held that defendants did not violate section 1325(a)(1) by attempting to travel by boat from the CNMI to Guam where the CNMI and Guam were parts of the United States and an alien did not enter or attempt to enter the United States for purposes of section 1325(a)(1) when traveling from one part of the United States to another, even if when doing so they passed through international waters.

Petitioner, a native of the Soviet Union and citizen of Azerbaijan, petitioned for review of a decision of the Board of Immigration Appeals ("BIA") affirming an immigration judge's ("IJ") denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture. At issue was whether there was substantial evidence to support the IJ's determination that petitioner was not credible due to inconsistencies between his testimony before an asylum officer and his subsequent written statements and testimony, which described additional incidents of persecution. The court denied the petition and held that substantial evidence supported the IJ's conclusion that the additional incidents materially altered petitioner's account of persecution in a way that casted doubt on his credibility.

After pleading guilty to being in the United States without authorization after removal, 8 U.S.C. 1326(a), the defendant requested a prison term below the guidelines range on the grounds that his criminal history category was overstated and that his reasons for returning to this country, to escape poverty and help his family, mitigate his illegal reentry. The district court imposed a 46-month sentence, at the bottom of the guidelines. The Seventh Circuit vacated and remanded, based on the district court's failure to explain its choice of sentence.

Petitioners, citizens of Guatemala, petitioned for review of removal orders that became final after the Board of Immigration Appeals ("BIA") dismissed their appeals from decisions of an Immigration Judge ("IJ") that found each man removable under section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. 1182(a)(6)(A)(i), and ineligible for adjustment of status under section 245(a) of the INA. At issue was whether the BIA erred in concluding that petitioners were statutorily ineligible for adjustment of status where their release on "conditional parole" under section 236(a)(2)(B) of the INA did not satisfy the "paroled in the United States" requirement of section 245(a). The court held that the requirement that an alien be "paroled into the United States" in order to seek adjustment of status under 8 U.S.C. 1255(a) was not satisfied by the alien's release on "conditional parole" under section 1226(a)(2)(B). The court also held that petitioners were correctly ordered removed under section 1182(a)(6)(A)(i) where they were present in the United States without being admitted or paroled and therefore, petitioners were statutorily ineligible for adjustment status under section 1255(a) despite having been released on conditional parole under section 1226(a)(2)(B).

Appellant Jose Santos Vaquera-Juanes was indicted for knowingly attempting to re-enter the United States after having been previously deported. Appellant plead guilty to the charge, and was sentenced to forty-nine months' imprisonment and two years' supervised release. Although he did not raise the issue during sentencing, in this appeal Appellant argues that the lower court erred by imposing supervised release without first making required findings. On appeal, the Circuit Court dismissed Appellant's argument on ripeness grounds, holding that "because [Appellant] has shown no practical possibility he will ever legally be in a position to violate the terms of the condition he challenges, he has failed to show any likelihood his term of supervised release will be revoked because of a violation of the challenged condition⦠even if the [â¦] condition remains part of the criminal judgment, there is no reasonable possibility it will result in [his] re-incarceration⦠he has failed to show he will suffer any hardship."

Appellant brought a suit under the Administrative Procedure Act ("APA"), 5 U.S.C. 500, seeking an injunction requiring the United States State Department ("State Department") to disclose the Hearing Officer's Findings of Fact and Recommendation when the Deputy Assistant Secretary of State for Passport Services granted her children limited validity passports after a hearing. After the district court granted the State Department's motion to dismiss appellant's suit, she timely appealed the decision and then filed a second, separate complaint against the State Department alleging that the State Department's decision on the merits was arbitrary and capricious in violation of the APA. The State Department filed a second motion to dismiss which was pending. The court vacated the district court's grant of the State Department's motion to dismiss and instructed the district court to reevaluate appellant's claims upon consolidation of both her cases against the State Department.

Defendant filed a motion for acquittal where he was convicted for being an alien who reentered the United States after previously being deported. At issue was whether the district court properly instructed the jury that there was a presumption of defendant's alienage and that the burden of proof was shifted to defendant to establish that he had obtained American citizenship by having been born to a U.S. citizen father. The court held that defendant faced no burden to claim derivative citizenship in an effort to negate the government's charge that he was an alien. The court also held that the government did not have the burden of disproving each element of derivative citizenship but needed only to prove that "alienage" was among the elements of the crime. The court further held that it was possible that a rational trier of fact could consider the evidence of defendant's father's citizenship, determine that defendant might meet the requirements for derivative citizenship, but then concluded beyond a reasonable doubt that, based on his actions and admissions, he was not actually an American citizen. Therefore, the court affirmed the denial of defendant's motion to acquit and allowed for the possibility of retrial on remand.

In 1996 the petitioner, an Indian citizen charged as deportable, posted bond and traveled from Texas to Wisconsin. An attorney, hired by his family, had the matter transferred to New Jersey, but later moved to withdraw on the ground that he had not seen or heard from the client. The motion was denied, the petitioner was ordered deported in absentia, and notice was served on the attorney. In 2009 the petitioner's motion to reopen was denied. The Third Circuit denied an appeal, noting that the petitioner was not entitled to actual notice and had contributed to his failure to receive actual notice through his attorney of record.

Appellant appealed a conviction of one count of making a materially false statement and one count of making a materially false statement in an immigration matter. At issue was whether appellant's rights were violated under the Sixth Amendment's Confrontation Clause and whether the evidence was sufficient to convict him. The court held that appellant's Confrontation Clause rights were violated where he did not have the opportunity to be confronted by witnesses against him when a Bosnian judgment of conviction was admitted as testimonial evidence to demonstrate that appellant had lied when he said that he had not killed anyone. The court also held that there was sufficient evidence to support a finding that appellant falsely denied that he had killed anyone before coming to the United States.