Justia Immigration Law Opinion Summaries

Petitioner, an Indonesian citizen of Chinese descent, petitioned for review of the BIA's order affirming an IJ's denial of her claims for asylum and withholding of removal. At issue was whether the IJ correctly determined that petitioner's asylum application was untimely because she had not established an exception to the one-year filing requirement. The court held that the BIA erred as a matter of law in finding that fraudulent deceit by an immigration consultant could not constitute an "extraordinary circumstance" that excused an otherwise untimely asylum application. Therefore, the court granted the petition and remanded for the BIA to consider whether the ordeal petitioner experienced constituted fraudulent deceit by an immigration consultant and whether she filed her asylum application within a reasonable time after such circumstance, thereby excusing the untimeliness of her application and requiring the BIA to consider her asylum application on the merits. With respect to petitioner's claim for withholding of removal, the court granted the petition and remanded for further consideration in light of its recent decision in Wakkary v. Holder.

Petitioner, a native and citizen of Mexico, petitioned for review of the final order of removal issued by the BIA affirming the IJ's finding that he was removable as charged and denying his applications for adjustment of status and post-order voluntary departure. This case involved petitioner's application for adjustment of status to permanent resident under 8 U.S.C. 1255, in which he asserted his entitlement to classification as a child under the Child Status Protection Act (CSPA), Pub. L. No. 107-208, section 1, 116 Stat. 927. The court held that the BIA correctly concluded that petitioner was not entitled to adjustment of status because he did not meet the requirements under the CSPA to maintain his child status. The court also held that the BIA correctly denied petitioner's request for post-order voluntary departure because he did not reside in the United States for one year immediately preceding the delivery date of the notice to appear. Accordingly, the court denied the petition for review.

Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's decision denying his application for cancellation of removal. At issue was whether a state court conviction for a simple-possession drug crime, later expunged by the state court, nevertheless constituted a "conviction" for federal immigration purposes. The court held that the constitutional guarantee of equal protection did not require treating, for immigration purposes, an expunged state conviction of a drug crime the same as a federal drug conviction that had been expunged under the Federal First Offender Act, 18 U.S.C. 3607(b). Therefore, the court overruled its holding to the contrary in Lujan-Armendariz v. INS. The court also held that, in light of the equities and other considerations, the court would apply this new rule only prospectively. Accordingly, the court held that the BIA did not err and affirmed the judgment.

Petitioner, a native and citizen of China, petitioned for review of a final order of removal by the BIA where the BIA denied petitioner's applications for asylum and withholding of removal because it concluded that he had failed to establish that his past mistreatment was on account of a protected ground and where the BIA also denied petitioner's application for protection under the Convention Against Torture (CAT). The court found that the BIA ignored the anti-government political opinions Chinese officals imputed to petitioner as a motivating factor for their abuse, and erroneously concluded that his pro-labor activities did not constitute an expression of a political opinion. Further, the IJ's conclusion that the Chinese officials mistreated petitioner because of legitimate prosecution was not supported by substantial evidence. Therefore, the court granted the petition for review and reversed the BIA's finding that petitioner had not established a nexus to a protected ground where any reasonable fact-finder would be compelled to conclude that the past mistreatment petitioner suffered was on account of a protected ground. The court remanded to the BIA to determine whether petitioner had established past persecution or a well-founded fear of future persecution, with instructions to provide a more reasoned explanation of its decision on his CAT claim.

Petitioner, a native and citizen of Mexico, petitioned for review of a decision of the BIA dismissing an appeal from an order of removal to Mexico. Despite petitioner's testimony to the contrary, an IJ found that petitioner was inadmissible because the inspectors at the border inspection station had reason to believe that petitioner was knowingly involved in drug trafficking. The BIA dismissed the appeal because substantial evidence supported the finding that an immigration officer had the necessary "reason to believe." The court granted the petition for a new hearing because the IJ misunderstood the relevant legal standard and in the circumstances, the court held that it was appropriate to remand for further proceedings to evaluate the credibility of petitioner's testimony that he did not know he was transporting marijuana, and the effect of the determination on the question of whether the IJ or BIA had "reason to believe" in light of all the evidence placed before the IJ during the course of the proceedings.

Defendant pled guilty to illegal re-entry into the United States and was sentenced to 46 months imprisonment. At issue was whether the district court erred in applying the sixteen-level enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii) because defendant's prior Arkansas conviction was a "crime of violence." The court found that defendant was previously charged with rape pursuant to section 5-14-103 of the Arkansas Code, but pled guilty to the lesser-included offense of second degree sexual assault pursuant to section 5-14-125 of the Arkansas Code. The court held that convictions for violating subsections (a)(1) and (a)(2) of section 5-14-125 were forcible sex offenses. Therefore, defendant's conviction of second degree sexual assault was a "crime of violence" and the judgment of the district court was affirmed.

Petitioners, husband and wife, are Macedonian Slavs. In 2001 husband was drafted into the Macedonian Army. He refused to report, because he disapproved of government efforts to suppress Albanian demands for greater rights. In 2002 husband and pregnant wife were victims of a home invasion; assailants held a gun and stated that petitioners were "betrayers of Macedonia" and "did not participate in the war." The assailants fondled wife, beat husband, and stole money and jewelry. Police arrived six hours later and implied that the assailants were fellow police, more influential because of their paramilitary character. Petitioners fled, arriving in the United States without a visa. Removal proceedings were instituted. Requests for asylum and other relief were denied. The Board of Immigration Appeals affirmed. The Seventh Circuit granted the petition and remanded. Withholding of removal (8 U.S.C. 1231(b)(3)) requires a determination that the applicant will more likely than not be subjected to persecution if removed from the United States. A finding of past persecution creates a rebuttable presumption of future persecution. What happened to the petitioners was persecution, not just harassment. The statement that there is no evidence of human rights abuses by the Macedonian army in 2001 ignored the State Department's country report.

Petitioner, a native of Mexico, entered the United States illegally in 1987, married the next year, eventually raising three children, and remained until returning briefly to Mexico in August 2001. Border Patrol apprehended her as she attempted to re-enter. In custody, petitioner completed a Form I-826 "Notice of Rights and Request for Disposition" in which she admitted her illegal presence, waived a hearing, and agreed to return to Mexico. In May 2003, she was apprehended in an unrelated immigration raid. She applied for cancellation of removal, but the Immigration Judge found her ineligible. The Bureau of Immigration Appeals and Seventh Circuit affirmed. The 2001 border apprehension and subsequent decision to admit illegal presence and return to Mexico had the effect of a break in continuous physical presence within the United States (8 U.S.C. 1229b(b)(1)(A)). The incident amounted to a formal, documented process; petitioner was taken into custody and the form adequately explained the legal consequences.

Appellant illegally reentered the United States in 2007 and pled guilty to being an alien found in the United States after having been convicted of aggravated felonies and deported. Appellant challenged the district court's decision to impose a 16-level enhancement to his base level offense score pursuant to U.S.S.G. 2L1.2(b)(1)(A), where the district court based the enhancement on its finding that the North Carolina statute under which appellant previously was convicted, N.C. Gen. Stat. 14-202.1, constituted "sexual abuse of a minor" and thus, was a "crime of violence" pursuant to the Sentencing Guidelines. The court affirmed the judgment of the district court and held that the Padilla-Reyes v. United States definition of "sexual abuse of a minor" was at least as broad and inclusive as section 14-202.1 and where appellant failed to demonstrate any North Carolina precedent that did not fit within the broad contours of the definition in Padilla-Reyes. Accordingly, the judgment of the district court was affirmed.

Defendant Ramon Vasquez-Alcarez pled guilty to illegally reentering the United States after he was deported for an aggravated felony conviction. He was sentenced to 27 months' imprisonment, which fell at the low end of the Sentencing Guidelines range. The sentence reflected an enhancement for Defendant's 1995 cocaine trafficking conviction. On appeal, Defendant argued that the district court placed too much weight on the 1995 conviction because it was stale. Therefore, Defendant challenged his sentence as substantively unreasonable. After this appeal was filed, the Sentencing Commission proposed an amendment to the Sentencing Guidelines that, had it been in effect at the time of Defendant's sentence, would have resulted in a lower level enhancement. Defendant contended that the proposed amendment helped his argument that the sentence he received was unreasonable. Upon review of the amendment and the district court's record, the Tenth Circuit was not persuaded by Defendant's argument. The Court found that the district court did not err or abuse its discretion by handing Defendant a 27-month sentence. Accordingly, the Court affirmed Defendant's sentence.