Justia Immigration Law Opinion Summaries

Defendant Crescencio Ochoa-Tovali pled guilty to reentering the United States as a previously removed alien in violation of federal law. He was sentenced to 57 months' imprisonment. This sentence reflected Defendant's criminal history that included a 1995 robbery conviction and a 1993 probation revocation. On appeal, Defendant argued that the district court weighed too heavily his 1993 and 1995 offenses and weighed too lightly his reason for reentering the United States. Defendant challenged his sentence as substantively unreasonable. Upon careful consideration of the lower court's record, as well as Defendant's criminal history, the Tenth Circuit found the sentence was not substantively unreasonable. The Court affirmed Defendant's sentence.

Defendant Alvaro Madriz-Castillo appealed his 57-month sentence for unlawful reentry as a previously deported alien. He contended that the sentence was procedurally and substantively unreasonable. Upon review, the Tenth Circuit found that the district court adequately explained Defendant's sentence, and he did not overcome the presumption that his sentence was not unreasonably long. Accordingly, the Court affirmed Defendant's sentence.

Petitioner, who was born in Jamaica and admitted into the United States as a lawful permanent resident in 1993, petitioned for review of the BIA's decision that the IJ correctly determined that petitioner was removable. The BIA, however, did not rule on the issues of the government's delay in adjudicating petitioner's citizenship application or the government's interpretation of the applicable statutes because the BIA determined that it lacked jurisdiction over applications for naturalization. Petitioner first argued that the government should be equitably estopped from deporting him because he should have been granted citizenship based on the application his father filed before he turned eighteen. Petitioner's second argument was that the BIA erred in holding that it did not have jurisdiction to terminate the removal proceedings to give him an opportunity to pursue his citizenship claim. The court held that petitioner admitted that he was told in 1999 that he was not a citizen and neither he nor his father adequately followed up on the naturalization application. Accordingly, the court held that petitioner was not entitled to the remedy of equitable estoppel. The court held that the BIA did not have authority to look beneath or second-guess the Department of Homeland Security's determination that he was not eligible for naturalization. Therefore, the court agreed with the BIA's decision that it did not have jurisdiction to terminate petitioner's removal proceedings. Accordingly, the court denied the petition for review.

Petitioner, a native and citizen of Guatemala, was convicted twice for second-degree commercial burglary when he was arrested for walking out of a supermarket with unpaid items on two separate occasions. As a result, the BIA found him removable as an alien convicted of an aggravated felony and also as an alien convicted of two crimes involving moral turpitude (CIMTs). Petitioner petitioned for review, challenging the determinations that the prior convictions were grounds for removal. The court held that the BIA erred in holding that petitioner's convictions were generic attempted theft offenses where simply entering a commercial building was not in itself "a substantial step" supporting attempted theft liability. The court also held that the BIA erred in concluding that the convictions qualified as CIMTs, either because it misapprehended the elements of the crime of conviction or because it misread caselaw. Therefore, the court granted the petition for review and vacated the order of removal.

Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's decision dismissing his appeal from an IJ's decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Petitioner argued on appeal that he acted as a whistleblower against government corruption and that the BIA erred in denying his claims for asylum, withholding of removal, and relief under the CAT. The court held that the BIA erroneously denied asylum and withholding of removal based on its conclusion that petitioner failed to establish a nexus to political activity. Therefore, the court granted the petition for review and remanded to the BIA for consideration of whether the government had met its burden to rebut the presumption that petition had a well-founded fear of future persecution on the basis of his whistleblowing activities. The court also held that the BIA improperly placed the burden on petitioner to show that he could not relocate within Mexico and failed to apply the presumption of a nationwide threat. Therefore, the court vacated the BIA's decision regarding the CAT relief and remanded for the agency to determine whether the government met its burden.

Defendant appealed from his conviction and sentence for reentry after deportation. Defendant contended that his deportation was invalid because the IJ failed to advise him of his eligibility for voluntary departure. The government claimed that the court need not reach that question because defendant waived his right to appeal. The court held that appellate waiver, negotiated by the district court at sentencing in exchange for a reduced sentence, was invalid and unenforceable. In a memorandum disposition filed contemporaneously with the opinion, the court held that the IJ failed to adequately advise defendant of his ability to apply for voluntary departure, and the court remanded for the district court to determine whether defendant was prejudiced by that failure.

Petitioners, citizens of Columbia,entered the United States in September 2001, as nonimmigrant visitors. On May 7, 2002, they filed an application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). An immigration judge denied the application. The Board of Immigration Appeals (BIA) affirmed. The Second Circuit vacated and remanded. The BIA again ruled against the petitioners.The Second Circuit again vacated and remanded. The petitioners sought $9,690.00 in attorneyâs fees and $751.04 in costs incurred in connection with the petitions for review After holding that he Equal Access to Justice Act, 28 U.S.C. 2412(d)(1)(A). applies to petitions for review from the BIA, the Second Circuit granted the award. The BIA position was without substantial justification; the BIA committed significant errors of law and fact that prejudiced the case by grounding its disposition of the claims on a material misquotation of death threat and inadequate consideration under the CAT.

The New York State Department of Education and related defendants appealed from an order of the district court denying their motion to vacate an award of attorney's fees to plaintiff where the district court had awarded plaintiff attorney's fees pursuant to 42 U.S.C. 1988(b) after he successfully challenged on equal protection grounds New York State Education Law 6704(6), which restricted professional veterinarian licenses to United States citizens and aliens who were lawful permanent residents of the United States. The Department appealed the district court's ruling and while the appeal was pending, the United States granted plaintiff permanent legal resident status, which meant that section 6704(6) no longer precluded him from obtaining the license. Accordingly, a panel of the court dismissed the appeal as moot and vacated the judgment. The Department then moved to vacate the fee award. The court agreed with the district court that because the judgment in plaintiff's favor, though later vacated, had brought a judicially-sanctioned, material alteration of the parties' legal relationship that had not been reversed on the merits, plaintiff was a prevailing party entitled to attorney's fees under 42 U.S.C. 1988(b).

Petitioner, a native of Nigeria, entered the U.S. illegally in 1992 and married a citizen in 1995. After a child was born in 1996, he applied for adjustment of status. In 1997 he attempted to enter Canada under a false identity and immigration officials determined that he had previously committed thefts under a false identity. Petitioner was charged as removeable. Immigration judges denied various motions and, in 2003, was found to be removeable. Withholding of removal was denied. The BIA upheld the decision. The Sixth Circuit denied a petition for review, holding that it had jurisdiction to review a denial of change of venue motion. The IJ was within his discretion in denying transfer of venue; petitioner suffered no prejudice. The motion for remand was futile because petitioner is not admissible for permanent residence and had no basis to adjust his status (8 U.S.C. 1255(a)). Noting petitioner's contradictions and refusals to answer questions, the court held that substantial evidence supported finding that petitioner failed to establish the likelihood that he or his daughter would be persecuted or tortured if they return to Nigeria.

Petitioner, a native and citizen of the Philippines, petitioned for review of the BIA's decision to affirm the IJ's order of removal pursuant to 8 U.S.C. 1227(a)(2)(A)(ii) where petitioner was an alien convicted of two or more crimes involving moral turpitude, namely his 1998 conviction for passing a bad check with intent to defraud and his 2004 conviction for possession of 15 or more access devices with intent to defraud. The court held that it lacked jurisdiction over the petition for review where petitioner was convicted of two crimes involving moral turpitude, for which each sentence of a year or more could be imposed, and which did not arise out of a common criminal scheme; and where the IJ's denial of the cancellation request was a discretionary decision as to which petitioner had not raised a colorable legal or constitutional claim. Accordingly, the court denied the petition for review.