Justia Immigration Law Opinion Summaries

Defendant was convicted of illegal reentry by an alien who was previously deported and sentenced to 70 months imprisonment. Defendant appealed the district court's refusal to allow him to present a defense of necessity and the district court's denial of his purported request for a continuance. The court held that the district court was correct to rule as a matter of law that defendant was not entitled to present a necessity defense where defendant failed to make a prima facie showing of an imminent threat of harm and that he lacked a reasonable, legal alternative to illegally reentering the United States. The court also held that the district court's conduct was not egregious or fundamentally unfair where defendant did not expressly request a continuance and relied on his comment on the morning of trial to suggest that the district court was negligent in not allowing him time to prepare the witnesses. Accordingly, the judgment of the district court was affirmed.

Petitioner, a citizen of Mexico, petitioned the court for review of the BIA's decision to deny his petition for cancellation of removal and his motion to reopen removal proceedings so that he could pursue cancellation of removal after an adjustment of status for which he had an application pending. The court held that, because petitioner raised no constitutional claims or questions of law, the court lacked jurisdiction to review the discretionary denial of cancellation of removal. The court also held that, because the BIA based its denial of petitioner's motion to reopen on a determination that he did not merit the discretionary relief of cancellation of removal, the court also lacked jurisdiction to review the denial of the motion. Accordingly, the appeal was dismissed.

Appellant, a citizen of El Salvador, pleaded guilty to violating 8 U.S.C. 1326(a), and 1326(b)(2), which together prohibited the illegal reentry of an alien who had been deported following an aggravated felony conviction. The district court twice sentenced appellant. The court reversed both times, remanding each time for resentencing - first, because the district court did not consider appellant's Guidelines range under United States v. Booker, and second, because the district court incorrectly calculated appellant's Guidelines range when it did consider it. Appellant appealed his third sentence which resulted in an 84 month prison sentence because the court varied upward from appellant's calculated Guidelines range on the basis of the factors articulated in section 3553(a). The court held that the district court correctly calculated the Guidelines range and its subsequent findings of fact about appellant's Virginia abduction offense were not clearly erroneous. The court also held that the district court's judgment presented a "reasoned and reasonable decision that the section 3553(a) factors, on the whole justified the sentence." Accordingly, the court affirmed the sentence because the district court adequately explained its sentencing decision.

Petitioner, a 71 year old native of Turkmenistan and a citizen of Armenia, petitioned for review of the BIA's denial as untimely of her motion to reopen removal proceedings to apply for adjustment of status, on account of ineffective assistance of counsel. The court found that petitioner first had reason to become suspicious of counsels' ineffectiveness in preparing her asylum claim after the BIA denied her appeal on February 25, 2005, and did not establish her diligence in discovering counsel's deficiency or continuing to pursue asylum after that date. Thus, the court held that the BIA did not abuse its discretion when it concluded that petitioner's motion to reopen on this ground was untimely. The court held, however, that petitioner did not have reason to become suspicious of her prior counsels' ineffectiveness in pursuing adjustment of status until she met with her current counsel. Petitioner then, with due diligence obtained and reviewed her file, and filed a motion to reopen within 90 days of reviewing the file with competent counsel. Thus, the BIA abused its discretion in denying as untimely petitioner's motion to reopen on the grounds of ineffective assistance in applying for adjustment of status.

Petitioner, a citizen of Ecuador, entered the U.S. illegally in 1991; she was granted voluntary departure in 1995, but did not depart until 1999. She illegally re-entered in 2000 and married a citizen. Using a different alien registration number, she applied for adjustment of status. She also sought to re-apply for admission under her original number. The Department began removal proceedings. The immigration found that her inadmissibility under 8 U.S.C. 1182(a)(9)(C)(i)(II) rendered her statutorily ineligible for adjustment of status and ordered removal to Ecuador. The BIA dismissed an appeal. The Third Circuit denied a petition for review. the BIA correctly concluded petitioner was inadmissible and removeable and that the immigration judge lacked jurisdiction to consider her "nunc pro tunc" request for consent to reapply for admission pursuant to sect. 1182.

Plaintiffs appealed the judgment of the district court dismissing their complaint for failure to state a claim. Plaintiffs argued that the Child Status Protection Act (CSPA), and in particular 8 U.S.C. 1153(h)(3), entitled Duo Cen, an alien who aged out of eligibility for an immigrant visa as a derivative beneficiary to his grandfather's 1994 priority date for his mother's 2008 family-sponsored petition for Duo Cen. The court held that section 1153(h)(3) did not entitle an alien to retain the priority date of an aged-out family preference petition if the aged-out family preference petition could not be "converted to [an] appropriate category." Therefore, because plaintiffs have specified no "appropriate category" to which Duo Cen's grandfather's petition could be converted, section 1153(h)(3) did not entitle him to retain the 1994 priority date from his grandfather's petition. Accordingly, the judgment of the district court was affirmed.

Defendant Jesus Balbin-Mesa appealed his sentence after he pled guilty to a charge of reentering the United States after having been deported. In March 2010, Defendant filed a motion to ask for a downward adjustment from the applicable sentencing guideline range. The district court considered it "sufficient, but not greater than necessary" to sentence Defendant to twenty-eight months' imprisonment. The court ordered a two-year period of supervised release, and added a special condition that Defendant not reenter the United States again without prior legal authority. The court warned Defendant that if he violated the special condition, he would be "immediately be placed in prison and likely have to serve a longer sentence." At the end of the hearing, the court asked whether Defendant had anything else to present to the court. Defendant did not object then to the sentence, but he appealed it to the Tenth Circuit. The Tenth Circuit noted that Defendant provided his own assessment of the statutory sentencing factors "making an oblique argument (unsupported by case authority) that the district court should have varied more than it did." However, none of Defendant's arguments showed "reversible error." Accordingly, the Court affirmed the lower court's sentence.

Petitioner, who came to the United States from Armenia, petitioned for review of the BIA's decision that she failed to satisfy her burden of proving eligibility for asylum and withholding of removal and the BIA's decision that petitioner also failed to satisfy her burden of proving eligibility for protection under the Convention Against Torture (CAT). At issue was whether the whistleblowing doctrine extended to petitioner who faced retaliation from a notorious criminal who was protected by corrupt government officials. The court held that the record compelled the conclusion that petitioner expressed a political opinion in her unsuccessful attempts to have the notorious criminal prosecuted and that the record compelled a finding that in his threats and attacks on petitioner and her family, the notorious criminal was motivated, in part, by the knowledge that she was exposing his corrupt ties to law enforcement agencies. Therefore, the court applied the whistleblowing doctrine and granted the petition as to the BIA's denial of her claims for asylum and withholding of removal. The court denied, however, the petition to the extent petitioner sought to remand for adequate consideration of her CAT claim where the BIA concluded that the record did not show a likelihood that petitioner would face torture upon returning to Armenia.

Petitioner Alfonso Jiminez-Guzman sought review of a removal order issued by the Board of Immigration Appeals (BIA). On appeal, he argued that the agency erred in denying his request for a continuance and by applying an incorrect legal standard to the evidence of his controlled-substance conviction. Petitioner was a lawful permanent resident to the United States. In 2009, the Department of Homeland Security issued a notice-to-appear to Petitioner, charging that he was subject for removal due to a 2002 Colorado conviction for heroin possession. The Immigration Judge granted Petitioner two continuances so that he could obtain counsel. Once he obtained counsel, Petitioner unsuccessfully petitioned to cancel his removal. Upon review of Defendant's conviction record and the BIA's proceedings, the Tenth Circuit found "clear, unequivocal, and convincing evidence" to support Defendant's removal. The Court found BIA committed no error in dismissing Petitioner's appeal.

Petitioner, a native of the Philippines, petitioned for review of an order of the BIA directing his removal, as well as the BIA's order denying reconsideration. At issue was whether the IJ erred in finding him removable, whether the IJ erred in finding him ineligible for withholding of removal, and whether the IJ violated his due process rights. As a preliminary matter, the court held that petitioner's notice of appeal gave the BIA an adequate opportunity to pass on the arguments he presented. The court also held that the government satisfied its burden of proving removability where petitioner was convicted of a controlled substance offense. The court held, however, that petitioner failed to carry his burden of proving that he was entitled to relief from removal where he failed to demonstrate persecution on a protected ground or that the IJ violated his due process rights where petitioner failed to demonstrate prejudice. Accordingly, the petition for review was denied.