Justia Immigration Law Opinion Summaries

The defendant entered the U.S. from Canada under a six-month visitor visa and stayed more than half of his life. He was convicted of possession of drug paraphernalia, criminal damage to property, theft under $2,500, and lewd and lascivious conduct under Wisconsin law. The immigration judge held that he was subject to removal. The Board of Immigration Appeals and the Seventh Circuit agreed. Removal for staying longer than permitted by visa can be cancelled under 8 U.S.C. 1229b if an alien has been present for 10 continuous years, has been a person of good moral character, has not been convicted of specific offenses including crimes of moral turpitude, and removal would work a hardship for a parent, child, or spouse who is a citizen or legal permanent resident. A waiver available for convictions relating to petty offenses does not apply to a conviction for possession of drug paraphernalia; offenses relating to controlled substances are crimes of moral turpitude.

The defendant appealed a sentence of 40 months after pleading guilty to illegal reentry of a removed alien following conviction for an aggravated felony. Sentencing guidelines provide a range of 46 to 57 months. The Seventh Circuit affirmed. The court properly considered a prior arrest that did not result in conviction; it had detailed, reliable information about the conduct underlying that arrest. Consideration of other arrests, for which the court did not have detailed information, was harmless error; the judge placed more weight on a prior conviction for drug trafficking and the defendant did not object to consideration of the arrests at the time of sentencing. Although the Seventh Circuit held, after the sentencing, that a court may consider the disparity in guidelines ranges for illegal re-entry, depending on whether the district has a "fast track" program, the district judge properly declined to lower the sentence based on the district's lack of a program. The defendant had not made concessions that would be required by such a program.

After the defendant pled guilty to illegal re-entry by a deported alien, 18 U.S.C. 1326(a), the district court sentenced him to 51 months--the top of the sentencing guidelines range. The Tenth Circuit affirmed, noting that the defendant has been apprehended while trying to enter illegally on eight occasions, has been convicted of drug trafficking, and was arrested for domestic violence. The defendant did not challenge the procedural reasonableness of the sentence and a sentence within the guidelines is presumed to be substantively reasonable. The court adequately expressed its reasoning and acted within the law in considering the defendant's criminal history both as criminal history and as a basis for sentence enhancement.

Garcia became a lawful permanent resident of the United States in 1995. In 1998 he pled guilty to possession of marijuana with intent to deliver. An immigration judge refused to cancel the Department of Homeland Security's removal proceedings. The Board of Immigration Appeals affirmed. The Sixth Circuit agreed, reasoning that Garcia was convicted of an aggravated felony under 8 U.S.C. Sec. 1101(a)(43), which refers to state offenses considered drug-trafficking crimes, defined as state offenses "punishable as a felony." Although 21 U.S.C. Sec. 841(b)(4) provides that "distributing a small amount of marihuana for no remuneration" is a misdemeanor, punishable by not more than one year in prison, Michigan law provides that conviction of intent to deliver any amount of marijuana is punishable by up to five years in prison. The state law conviction presumptively corresponds to the federal felony and the government was not required to prove the amount of marijuana or that a remunerative exchange occurred. Because Garcia admitted to intent to deliver, he was not entitled to a waiver available for simple possession. The court declined to consider a claim of ineffective assistance of counsel.

Ni was smuggled into the United States in 1990 and sought asylum in 1994. His petition was denied and the case was closed. Some years later, facing deportation, Ni attempted to establish fear of religious persecution. The Board of Immigration Appeals rejected the claim. The Seventh Circuit, affirmed, noting the difference between harassment and persecution. Testimony about treatment of Ni and his family in the 1970s and early 1980s and evidence about current conditions in China did not support a legitimate claim of fear of future persecution.

Petitioner filed for review of the Board of Immigration Appeals' ("BIA") denial of cancellation of removal under 8 U.S.C. 1229b(b)(1) where petitioner entered the country in 2002 and therefore cannot satisfy the 10-year continuous physical presence requirement. At issue was whether petitioner's mother's physical presence in 1993 could be imputed to petitioner. The court denied the petition for review and held that imputation of petitioner's mother's presence did not apply where, under the circumstances, Congress intended the same text in the Nicaraguan Adjustment and Central American Relief Act, which held that imputation did not apply, and 8 U.S.C. 1229b(b)(1) to impart the same statutory immigration scheme.

Plaintiffs sued defendant, Clearwire US LLC, alleging that defendant's early termination fee ("ETF")constituted an unlawful penalty and that the provisions in defendant's service agreement permitted defendant to charge customers an ETF if service was terminated before the end of the fixed contract term. At issue was whether the fees that an internet and telephone service provider charged to customers who cancel service before the expiration of a fixed-term contract were alternative performance provisions or liquidated damages. The court held that the answer to this issue was unclear and therefore certified this question to the Washington Supreme Court.

Petitioner appealed his removal order where petitioner was deemed ineligible for cancellation of removal because he had committed an aggravated felony. At issue was whether certain procedures were necessary in Casas bond hearings to comport with due process. The court held that federal district courts had habeas jurisdiction under 28 U.S.C. 2241 to review Casas bond hearing determinations for constitutional claims and legal error, that given the substantial liberty interests at stake in Casas bond hearings, the government must prove by clear and convincing evidence that continued detention was justified, and that the immigration court was required to make a contemporaneous record of Casas hearings.

Defendant appealed a judgment following a plea of guilty to illegal reentry into the United States after he was deported to the Dominican Republic when he finished serving his prison sentence for first degree manslaughter. At issue was whether defendant's sentence of 42 months' imprisonment was substantively unreasonable where the defendant claimed that the district court's sentence was unduly harsh in view of the factors in 18 U.S.C. 3553(a) and where the 16-level Guideline enhancement applicable to re-entrants with certain prior convictions was not based on review of past sentencing practices and empirical studies, was overly harsh, and was greater than necessary in view of fast track programs. The court held that defendant's sentence was not substantively unreasonable where the district court considered the nature and circumstances of his offense and the history and characteristics of the defendant under 18 U.S.C. 3553(a). The court also held that the 16-level Guideline enhancement was not substantively unreasonable where defendant's claims were without merit, the sentence was not unreasonably harsh when it reflected the serious nature of offenses, and where sentences in fast-track districts could not be compared with sentences in non-fast-track districts in order to demonstrate that the latter were longer than necessary.

Petitioner, a native and citizen of Mexico with lawful permanent resident status in the United States, petitioned for review of a final order of removal of the Board of Immigration Appeals ("BIA") where petitioner had pled guilty to violating Revised Code of Washington section 9A.44.089 ("state statute"), child molestation in the third degree. At issue was whether a felony conviction for child molestation in the third degree under the state statute constituted a crime of child abuse within the meaning of 8 U.S.C 1227(a)(2)(E)(i) ("federal statute"). The court held that petitioner's conviction under the state statute was categorically a crime of child abuse where the state statute met the mens rea requirement of the federal statute which required at least a criminally negligent act and the actus reus requirement of the federal statute which required an act that constituted maltreatment of a child or impairment of a child's physical or mental well-being.