Justia Immigration Law Opinion Summaries

Petitioner, a native and citizen of Nigeria, petitioned for review of the BIA's denial of the motion to reopen and the request to stay the removal order, determining that, pursuant to the fugitive disentitlement doctrine, petitioner's failure to report for removal rendered him ineligible for consideration of additional relief. At issue was whether petitioner was a fugitive under the fugitive disentitlement doctrine. The court was persuaded by the Second and Seventh Circuits and held that petitioner became a fugitive when he did not surrender for removal despite that his address was known to authorities. Therefore, in accordance with the fugitive disentitlement doctrine, the court was barred from further review of the petition and the petition was dismissed.

Defendant pled guilty to one count of reentry of removed alien and the district court applied a sixteen-level enhancement for a previous "alien smuggling offense." Defendant filed a motion on March 5, 2010, arguing that the enhancement should not have applied and the district court, twenty-eight days after sentencing, held a hearing on the motion. At a hearing on April 12, 2010, the district court entered an amended judgment and the government subsequently appealed the district court's resentencing of defendant, arguing that the district court did not have jurisdiction to resentence more than fourteen days after sentencing, under Federal Rule of Criminal Procedure 35(a). The court held that the fourteen day provision in Rule 35(a) was jurisdictional and the district court was thus without jurisdiction to resentence defendant. Accordingly, defendant's original sentence must be reinstated. The court further held that, even if the district court had jurisdiction to correct its error, it was still error nonetheless. Accordingly, the amended judgment was vacated and the original judgment was reinstated.

Defendant was convicted on two counts of violating 8 U.S.C. 1326, which prohibited a deported alien from reentering the United States without the consent of the U.S. Attorney General. Defendant appealed from his conviction and from his subsequent sentence of 96 months imprisonment. The court held that the district court acted within its discretion when it excluded defendant's minimally relevant evidence at issue, which presented the potential for jury confusion and which could have resulted in a verdict premised on mere speculation. The court also held that because the trial record contained nothing more than a mere scintilla of evidence of derivative citizenship, the district court did not abuse its discretion when it found the requisite evidentiary foundation lacking and refused to instruct the jury pursuant to that theory. The court further held that the district court did not err by upwardly adjusting defendant's sentence pursuant to a multiple count enhancement and that defendant's sentence was both substantively and procedurally reasonable. Accordingly, the judgment was affirmed.

Following an anonymous tip, the FBI conducted surveillance of defendant and observed that he regularly transported about four people back and forth between his home and his restaurant. A consent search of the home revealed three people who were illegally present in the U.S. and a make-shift dormitory in the basement and garage. Defendant was convicted of two counts of illegally harboring or shielding illegal aliens (8 U.S.C. 1324(a)(1)(A)(iii)) and sentenced to 15 months of imprisonment and ordered to pay $10,000 in fines and forfeit his house. The Seventh Circuit affirmed. The district court rejected a motion to vacate (28 U.S.C. 2255), arguing ineffective counsel. The Seventh Circuit affirmed, rejecting arguments concerning proposal of an incorrect jury instruction; failure to object to video-taped testimony of prosecution witnesses; failure to ensure that a language barrier did not prevent communicating with defendant; and preventing defendant from testifying on his own behalf.

Petitioner, born in the Dominican Republic, lived in the U.S. from 1982 until 2009, when DHS charged him as removable under section 212(a)(6)(A)(i) of the Immigration and Nationality Act as an alien present without being admitted or paroled, and under sections 212(a)(2)(A)(i) and (a)(2)(B) as an alien convicted of an offense relating to a controlled substance and an alien convicted of two or more offenses involving crimes of moral turpitude. He admitted the factual allegations was found removable, but applied for asylum, withholding of removal, and Convention Against Torture protection. He claimed that, because of his assistance to the Drug Enforcement Agency, he would be targeted for violence if returned to the Dominican Republic. The immigration judge denied the applications. The BIA affirmed and 21 days later, petitioner was removed. The BIA denied a motion to reconsider, citing lack of jurisdiction resulting from removal (8 C.F.R.1003.2(d)).The Third Circuit reversed and remanded, holding that the post-departure bar is inconsistent with the Illegal Immigration Reform and Immigrant Responsibility Act, 8 U.S.C. 1229a(c)(6)(A), (7)(A), which grants an alien the right to file one motion to reconsider and one motion to reopen without any geographic limitation on that right.

Defendant pled guilty to illegally reentering the country after having been deported and was sentenced to 51 months imprisonment. On appeal, defendant challenged the district court's imposition of a sixteen-level sentence enhancement under U.S.S.G. 2L1.2. The court held that defendant's previous Colorado criminal conviction for unlawful sexual contact was a "crime of violence" and therefore, affirmed the district court's imposition of the sixteen-level enhancement.

Petitioner, a native and citizen of El Salvador, petitioned for review of an order of the BIA that affirmed an IJ's denial of asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The court held that it lacked jurisdiction to review the BIA's determination that petitioner's asylum application was barred as untimely filed. The court also held that substantial evidence supported the BIA's determinations regarding withholding of removal and CAT relief. Therefore, the petition for review was denied.

Petitioner, a native and citizen of Guatemala, petitioned for review of the BIA's decision denying his application for cancellation of removal. After a merits hearing, the IJ found that petitioner satisfied the requirements to cancel removal proceedings but the BIA vacated the decision, determining that the IJ applied the wrong legal standard. Petitioner contended that the BIA incorrectly ruled that the IJ applied the wrong legal standard in determining "exceptional and extremely unusual hardship" and that the BIA applied the incorrect legal standard by failing to adequately consider certain factors that the BIA had considered relevant in other decisions. As a threshold matter, the court held that it had jurisdiction to review the nondiscretionary determinations underlying a denial of an application for cancellation of removal, such as the "predicate legal question whether the [BIA] properly applied the law to the facts in determining an individual's eligibility to be considered for the relief." The court held that the issue of whether the IJ applied the correct legal standard was irrelevant where the IJ's findings were reviewable only to the extent that they had been adopted by the BIA. The court also held that because petitioner did not challenge the legal standard applied by the BIA, he did not raise an issue within the court's jurisdiction. Accordingly, the petition was denied.

Defendant Daniel Reyes-Alfonso to one count of illegal reentry after deportation in violation of federal law. Using the 2009 Sentencing Guidelines, the district court calculated an advisory prison range of forty-six to fifty-seven months. Then the court imposed a forty-six month term which represented the bottom of that range. Defendant appealed, arguing that his prior conviction in Colorado for "sexual contact-no consent" was not a forcible sex offense which could be used to enhance the court's sentence. Upon review of the trial court record and the applicable legal authority, the Tenth Circuit concluded that the district court did not abuse its discretion by imposing the forty-six month sentence. The Court held the lower court properly concluded that the Colorado conviction was a forcible sex offense under the sentencing guidelines. Accordingly, the Court affirmed the lower court's decision and Defendant's sentence.

Petitioner, age 14, and her mother, a biomedical researcher, entered the U.S. from Georgia on temporary visas in 1998. While their applications for permanent residency were pending, the mother violated the terms of her temporary visa by continuing to work after the visa expired. Both applications for residence were denied in light of the oversight. After the mother obtained a new temporary visa and reapplied for permanent residence, DHS determined that petitioner, who had turned 21 was no longer a derivative beneficiary of her mother and no longer eligible to apply for residence. When removal proceedings began, petitioner claimed that the Child Status Protection Act, 116 Stat. 930, operated to freeze her age as of the date of her motherâs original visa classification petition. The immigration judge and the Board of Immigration Appeals rejected the claim. The Seventh Circuit reversed. The CSPA applies to petitioner because her motherâs classification petition was approved prior to its enactment, and neither of her adjustment applications were decided prior to the enactment. The court noted that it is unclear whether the CSPA will help petitioner attain permanent residency.