Justia Immigration Law Opinion Summaries

Appellant appealed his conviction on various counts related to transporting and harboring illegal aliens. Appellant challenged the district court's decision to admit into evidence videotaped deposition testimony of detained material witnesses pursuant to 18 U.S.C. 3144. For the first time on appeal, defendant argued that the statute was facially invalid and that the court erred by permitting the government to admit the depositions into evidence at trial without any showing of a witness's unavailability. Appellant also argued that the magistrate judge failed to comply with the statue and that certain procedural requirements of Federal Rule of Criminal Procedure 15 and General Order 05-34 of the United States District Court for the District of Arizona were unmet. The court held that the bulk of appellant's claims were meritless. The court did agree that the district court plainly erred by permitting the government to introduce the now-contested depositions into evidence without a showing of unavailability. The court, however, declined to accord appellant any relief because the court was not persuaded that "the error seriously affect[ed] the fairness, integrity, or public reputation of [the] proceedings." Therefore, the court affirmed the district court's judgment of conviction.

A Polish citizen, who entered the U.S. on a visitor's visa in 1994, overstayed, and allegedly tried to bribe an immigration officer in a 1999 sting operation. Before her removal proceedings began, she married a U.S. citizen, who filed a petition for an alien relative visa. In 2006, after the petition was approved, she applied to adjust her status under 8 U.S.C. 1255. The IJ found her removable, denied her motion to suppress evidence collected in the sting, and decided that she was not entitled to adjust her status. The Board of Immigration Appeals dismissed an appeal. The Seventh Circuit dismissed an appeal and forwarded information about petitioner's attorney to the state disciplinary board. The petition included a single, underdeveloped legal argument: that evidence gathered during the sting should have been suppressed because the operation was an egregious violation of petitioner's right to due process, an argument foreclosed by an earlier case. The court noted its jurisdictional limitations, but stated that the agency's evaluation of the equities was not particularly persuasive and that it would have required more than weak circumstantial evidence that an alien had bribed a federal immigration official.

Petitioner, age 60, a lawful permanent resident of the U.S. since 1999, pled guilty to aiding and abetting a conspiracy to violate 8 U.S.C. 1328, which prohibits importation of any alien for the purpose of prostitution, or for any other immoral purpose. His role involved distributing condoms to what he knew were brothels. The government commenced removal on the grounds that petitioner committed a crime involving moral turpitude under 8 U.S.C. 212(a)(2)(A)(i)(I), and for having procured persons for purpose of prostitution. He conceded removability for a crime involving moral turpitude, but denied removability for procuring persons for prostitution. He claimed eligibility for cancellation of removal under INA 240A(a), which requires that the noncitizen have lawful permanent residence for five years, continuous residence for seven years, and no conviction for what amounts to an aggravated felony. The Immigration Judge denied cancellation. The Board of Immigration Appeals affirmed. The Seventh Circuit vacated the order of removal and remanded. "Importation ... of any alien for the purpose of prostitution," 8 U.S.C. 1328, encompasses conduct broader than "an offense that relates to the owning, controlling, managing or supervising of a prostitution business," INA 101(a)(43)(K)(i), so petitioner's conviction is not properly categorized as an aggravated felony.

Petitioner, born in Mexico, entered the U.S. without inspection in 1977. In 1982, he purported to marry an American woman while still married to his wife in Mexico. He was admitted as a lawful permanent resident in 1984. In 1987, petitioner was convicted of delivery of a controlled substance. Removal proceedings were suspended until 2009, when he was apprehended while returning from a trip to Mexico. Petitioner conceded deportability, but applied for waivers of deportation under former sections 241(f) and 212(c) of the Immigration and Nationality Act and for suspension of deportation pursuant to former section 244(a)(2). An immigration judge denied the applications; the Board of Immigration Appeals affirmed. The Seventh Circuit denied review. Petitioner was never charged or found deportable based on fraud; he was charged only based on his controlled substance offense and was ineligible for a 241 waiver. He was ineligible for suspension of deportation because his period of continuous physical presence ended with his drug crime in 1987, or, in the alternative, when an Order to Show Cause issued in 1988.

Petitioner entered the U.S. from Mexico in 1971, and became a lawful permanent resident in 1977. In 2003, she was indicted for mail fraud in connection with a staged accident insurance scheme; loss to the victims exceeded $10,000. On advice of counsel, she pled guilty and was sentenced to four years’ probation. An alien who is convicted of an aggravated felony is deportable, 8 U.S.C. 1227(a)(2)(A)(iii). The government initiated removal proceedings after petitioner unsuccessfully applied for citizenship. She sought to have her conviction overturned and filed a motion for a writ of coram nobis, claiming ineffective assistance of counsel because her attorney failed to inform her that a guilty plea could lead to removal. While the motion was pending, the Supreme Court decided Padilla v. Kentucky, 130 S. Ct. 1473 (2010). The court concluded that Padilla did not announce a new rule and did apply to the case and vacated the conviction. The Seventh Circuit reversed. The Supreme Court has defined the concept of an old rule narrowly, limiting it to holdings so compelled by precedent that any contrary conclusion must be deemed unreasonable; Padilla announced a new rule. That numerous courts had failed to anticipate the holding, though not dispositive, is strong evidence that reasonable jurists could have debated the outcome.

Petitioner, a native and citizen of El Salvador, petitioned for review of a decision of the BIA ordering him removed to his native country. The BIA affirmed the IJ's ruling that petitioner was ineligible for asylum, withholding of removal, and withholding under the Convention Against Torture (CAT) because he had been "convicted of a particularly serious crime," driving under the influence (DUI). The BIA also ruled that petitioner was ineligible for deferral of removal under the CAT because he failed to prove a likelihood of future torture. The court held that it had jurisdiction to review the BIA's determination that an alien had been convicted of a "particularly serious crime." The court also held that driving under the influence was not statutorily defined as an aggravated felony did not preclude the BIA from determining that it could be a particularly serious crime. The court further held that the BIA, as the Attorney General's delegate, was permitted in this case to determine whether petitioner's DUI offenses were particularly serious for purposes of asylum eligibility. The court held, however, that the BIA's explanation for its decision was so ambiguous that the court could not conduct meaningful judicial review and therefore, remanded to the BIA for a clear explanation.

Petitioner, a native and citizen of China, petitioned for review of the BIA's denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The court held that the IJ's adverse credibility determination was impermissibly based on mischaracterizations of petitioner's testimony as well as inconsistencies that, considering the totality of the circumstances, were trivial. The court held, however, that petitioner was given the proper notice and opportunity to respond to the IJ's request for corroborative evidence. Because petitioner failed to provide that evidence and did not provide any explanation for his failure to do so, and because the IJ was not compelled to conclude that petitioner met his burden of proof without that evidence, the court denied the petition.

Petitioner Budiyanto Juned, a native and citizen of Indonesia, appealed a Board of Immigration Appeals' (BIA) decision that denied his applications for asylum and restriction on removal under the Convention Against Torture (CAT). Petitioner came to the United States on a visitor's visa in 1994 and remained after the visa expired. Petitioner petitioned for asylum and restriction on removal on the basis of his political opinion. The BIA affirmed an immigration judge's (IJ) determination that Petitioner was not eligible for asylum because his application was not timely filed and that he did not demonstrate changed or extraordinary circumstances to except himself from the filing deadline. Furthermore, the BIA determined that Petitioner's proffered incidents of mistreatment in his home country did not amount to persecution, nor the likelihood he would be persecuted in the future. Upon review of the BIA record, the Tenth Circuit dismissed Petitioner's asylum claim due to the court's lack of jurisdiction. The Court affirmed the BIA's determination as to all other aspects of Petitioner's claim.

Petitioner, a citizen of Guyana, entered the U.S. in 1994 on a six-month tourist visa and remained after that period. He obtained approved I-130 immediate relative and I-140 work petitions and applied for adjustment of status, but no visa numbers were available. After several continuances, the immigration judge refused any further continuance pending availability of a visa number and ordered deportation. The BIA dismissed an appeal, stating that the future availability of a visa number is speculative and insufficient to establish cause for a continuance). The Third Circuit vacated and remanded for consideration of factors established in a 2009 BIA decision (Hashmi) for use in evaluating whether to continue removal proceedings pending an adjustment of status application: DHS response to the motion; whether the underlying visa petition is prima facie approvable; respondent's statutory eligibility for adjustment of status; whether respondent's application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors. Factors relevant to determining the fourth criteria include, but are not limited to, the existence of family ties and length of residence in the United States, the hardship of traveling abroad, and respondent's immigration history.

Petitioner was born in Cape Verde in 1979 and admitted into the U.S. as a legal permanent resident in 1985, when his mother immigrated; she became a citizen in 1996. The Department of Homeland Security instituted removal proceedings in 2008 for an aggravated felony conviction. He sought to terminate proceedings pursuant to the Immigration and Nationality Act (8 U.S.C. 1432(a)(3)), contending that he derived citizenship through his mother, who was unwed when he was born and naturalized prior to his eighteenth birthday. The immigration judge ordered removal, reasoning that Congress repealed section 1432(a) by enacting the Child Citizenship Act of 2000, 114 Stat. 1631, effective prior to all relevant events. The Board of Immigration Appeals affirmed. The Third Circuit denied review. Petitioner was legitimated by a Cape Verde statute, making him ineligible for derivative citizenship pursuant to 8 U.S.C. 1432(a)(3).