Justia Immigration Law Opinion Summaries

After pleading guilty to illegal reentry (8 U.S.C. 1326) the defendants challenged their sentences, claiming that their Fifth Amendment rights were violated as a result of the Department of Justice "fast-track" programs that allow a departure from sentencing guidelines in return for a guilty plea and waiver of right of appeal. Such programs have been implemented in several areas, but not in any district within the Third Circuit. The Third Circuit affirmed, holding that the program is rationally related to, among others, the goals of allocating prosecutorial resources and enforcing the immigration laws. The sentences imposed on the defendants were reasonable.

Petitioner, a citizen of Mexico, contended that section 212(a)(6)(C)(ii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. 1101, which rendered inadmissible any alien who made a false claim to United States citizenship, should not apply to her because, at the time she made the misrepresentation, she was an unaccompanied minor. The IJ accepted petitioner's argument and granted her adjustment of status. The BIA reversed, pointing to the lack of authority for the IJ's actions yet refusing to enunciate the controlling standard. Accordingly, the court held that it could not discern whether the BIA rejected petitioner's argument on a wholesale basis, refusing to exempt from the statute any minors no matter what the age, or whether the BIA's analysis was more nuanced and hinged on certain facts that warranted the application of the statute to petitioner's case. Therefore, the court remanded the matter to the BIA with instructions to clarify the standard it used in applying section 212(a)(6)(C)(ii) to unaccompanied minors and to articulate the reasons petitioner deserved no relief under that standard.

The plaintiffs were subjected to raids as part of "Operation Return to Sender," implemented to apprehend fugitive aliens. The complaint included "Bivens" claims: unreasonable home entries, unreasonable searches; unreasonable seizures, all in violation of the Fourth Amendment; a Fourth Amendment claim for excessive force by four individuals; a Fifth Amendment substantive due process claim involving three individuals; and a Fifth Amendment equal protection claim by one individual. The district court denied a motion to dismiss. The Third Circuit reversed on qualified immunity grounds. The plaintiffs did not allege that the defendants, high-level federal Immigration enforcement supervisors, participated in the raids, adopted an unconstitutional policy, or had legally sufficient notice of the unconstitutional conduct of subordinates. They did not identify what defendants should have done differently with respect to training or other matters, that would have prevented the unconstitutional conduct. The plaintiffs may pursue official capacity claims for injunctive relief against any further intimidation or unlawful entry. The court did not address individual capacity claims for damages against the lower-ranking agents

Petitioner entered a conditional plea where he admitted that he was a citizen and native of Mexico illegally present in the United States and that he knowingly possessed a firearm in or affecting commerce which had been shipped or transported in interstate commerce. At issue was whether petitioner's conviction under 18 U.S.C. 922(g)(5), for being an illegal alien in possession of a firearm, violated the Second Amendment and whether his conviction violated the Fifth Amendment's Due Process Clause. The court held that the phrase "the people" in the Second Amendment did not include aliens illegally in the United States such as petitioner and that section 922(g)(5) was constitutional under the Second Amendment. The court also held that the text of the conditional guilty plea only reserved petitioner's right to appeal on the grounds that the statute violated the Second Amendment and therefore, did not reach the merits of whether petitioner's due process rights were violated.

Petitioner, a citizen of the Philippines, filed a petition for review of the BIA's decision affirming the IJ's final order of removal, concluding that petitioner was barred from seeking adjustment of status under 8 U.S.C. 1255(d). At issue was the relationship between 8 U.S.C. 1255(d) and (i) where section 1255 prescribed the terms upon which various classes of aliens could adjust their status to that of a lawful permanent resident ("LPR"). The court held that the provisions in subsection 1255(d) barred petitioner as a K-1 visa holder from adjusting her status on any basis other than her marriage to the U.S. citizen who petitioned on her behalf and that these provisions were consistent with the carefully crafted scheme that Congress created for the purpose of avoiding marriage fraud. The court also held that petitioner's due process rights were not violated where she was not entitled to a further hearing after she conceded removability and was ineligible for adjustment of status. Accordingly, the court denied the petition for review.

Petitioner Edwin Chepsiror sought the Tenth Circuit's review of a removal order issued by the Board of Immigration Appeals (BIA). Petitioner was denied asylum by an immigration judge after he withdrew from classes at Utah State University in 2005. Petitioner claimed that he feared returning to his native Kenya because he had assisted the Kenyan police investigate the murder of his father and was afraid that if he returned those responsible for the murder would kill him too. Upon review of Petitioner's application and the applicable legal authority, the Tenth Circuit held that Petitioner did not present sufficient evidence to overturn the immigration judge's nor BIA's denial of asylum. Therefore, the Court denied Petitioner's application and affirmed Petitioner's removal from the United States.

Petitioner Yong Chen petitioned the Tenth Circuit for review of the Board of Immigration Appeals' (BIA) denial of his applications for asylum, restriction on removal and for relief under the Convention Against Torture (CAT). Petitioner is a Chinese national who came to the United States in 1998. He overstayed his six-month visitor's visa and in 2005 was slated for removal. At that time, he told an Immigration Judge that he planned on filing an application for asylum. However, he did not actually file the application until 2008. BIA concluded that Petitioner was not credible and could provide no corroboration for his persecution claims, and as a result, could not satisfy the burden to establish he was eligible for the relief he requested. The Tenth Circuit determined it lacked jurisdiction to hear Petitioner's asylum request, and it affirmed the BIA's decision. The Court found that Petitioner "merely cited" the standards for relief under CAT, but offered nothing more for the Court's review. Therefore, the Court denied the balance of Petitioner's application.

Petitioner Ioan Vasilu petitioned the Tenth Circuit for review of a removal order from the Board of Immigration Appeals (BIA). The BIA affirmed an immigration judge's determination that Petitioner was removable as a criminal alien. The Tenth Circuit determined that it lacked jurisdiction to hear the case. The Court found that Petitioner attempted to "collaterally attack" the underlying criminal conviction he received prompting his removal. Accordingly, the Tenth Circuit dismissed Petitioner's application.

Husband and wife appealed the BIA's denial of wife's motion to reopen her case to consider her application for adjustment of status after the IJ made an express adverse creditability finding against husband and wife and denied their claims for relief on that basis. At issue was whether lying to the immigration authorities was a sufficient basis for an adverse creditability finding and whether a lie uttered by one spouse could fairly be attributed to the other. The court affirmed the BIA's denial of wife's motion and held that discovering husband and wife knowingly received the government for years was a perfectly good reason not to believe their testimony. The court also held that it did not matter which spouse told the lie, and which one tacitly assented, where the IJ reasonably concluded that husband and wife were executing a common plan to deceive the asylum officer and reasonably believed both of them.

Defendant appealed from the sentence imposed by the district court following his guilty plea to one count of attempted reentry after deportation. At issue was whether the district court committed reversible error by applying a 16 level increase to the offense level pursuant to U.S.S.G. 2L1.2(b)(1)(A)(ii). The court held that defendant failed to satisfy the applicable plain error standard of review with respect to the district court's determination that he was previously convicted of a "crime of violence," namely, "statutory rape." The court also held that the district court did not otherwise abuse its discretion or impose a sentence that was either procedurally erroneous or substantively unreasonable. Accordingly, the court affirmed the sentence entered by the district court where the district court provided a thorough explanation for its determination, appropriately responded to the various arguments made by defense, did not give undue weight to the Guidelines, and reasonably took into account defendant's prior record as well as several mitigating factors.