Justia Immigration Law Opinion Summaries

Petitioner, a native and citizen of Brazil, sought review of an order of the Board of Immigration Appeals ("BIA") which dismissed his appeal of an immigration judge's ("IJ") decision ordering his removal and denied his motion for remand or continuance. At issue was whether the BIA abused its discretion in denying petitioner's request for a continuance. The court held that to the extent the BIA denied petitioner's request for a continuance on the basis that it lacked the authority to grant the continuance, the denial constituted legal error where IJs have broad discretionary authority to grant a motion for continuance for good cause shown and where IJs and the BIA had jurisdiction over motions for continuances in removal proceedings where they already had jurisdiction in light of Matter of Hashmi. The court also held that the BIA failed to provide a rational explanation for its ruling when it failed to evaluate the merits of granting or denying petitioner a continuance based on the specific facts on the record and therefore, on remand, the BIA should either follow the Hashmi factors or explain why application of those factors was inappropriate.

The Chamber of Commerce of the United States of America and various business and civil rights organizations (collectively, "Chamber") filed a federal preenforcement suit against those charged with administering the Legal Arizona Workers Act, Ariz. Rev. Stat. Ann. 23-211, 212, 212.01, which provided that the licenses of state employers that knowingly or intentionally employed unauthorized aliens could be, and in certain circumstances, must be, suspended or revoked. The law also required that all Arizona employers use E-Verify, an internet-based system employers could use to check the work authorization status of employees. At issue was whether federal immigration law preempted those provisions of Arizona law. The Court held that Arizona's licensing law fell within the confines of the authority Congress chose to leave to the states and therefore, was not expressly preempted where the Immigration Reform and Control Act ("IRCA"), 8 U.S.C. 1324a(h)(2), prohibited states from imposing civil or criminal sanctions on those who employed unauthorized aliens but preserved state authority to impose sanctions through licensing and similar laws. The court also held that Arizona's requirement that employers use E-Verify did not conflict with the federal scheme and in no way obstructed achieving the aims of the federal program.

Petitioner appealed the Board of Immigration's ("BIA") decision that petitioner was ineligible for cancellation of removal after he had amassed a substantial criminal record while in the United States. Petitioner conceded that he was removable for having been convicted of two or more crimes of moral turpitude but challenged the government's contention that an aggravated-felony conviction justified his removal. At issue was whether the BIA properly determined that petitioner had not satisfied his burden of showing that he was eligible for cancellation of removal. The court affirmed the removal and held that the BIA's ruling denying petitioner's request for relief from removal was faithful to the plain meaning of the statutory text governing eligibility for cancellation of removal and that petitioner's arguments to the contrary ignored Congress' burden-shifting framework.

Petitioner, a native of Jamaica, filed a petition for a writ of habeas corpus and a petition for review where the immigration judge and the Board of Immigration Appeals ("BIA") agreed with the Department of Homeland Security ("DHS") that petitioner was removable because he was an alien who had committed a variety of gun and drug offenses. Petitioner claimed that he was a citizen under 8 U.S.C. 1432(a)(3). Petitioner also claimed that, because he was declared a United States citizen in a 1998 removal proceeding, DHS was precluded from litigating the issue of his alienage in later removal proceedings. The court held that, because 8 U.S.C. 1252(b)(9) and 1503(a) prohibited petitioner from obtaining review of his citizenship claims through a habeas corpus petition, the court affirmed the district court's jurisdictional dismissal of petitioner's petition for a writ of habeas corpus. The court also held that the BIA read section 1432(a)(3) in accordance with its unambiguous meaning and the statute passed constitutional muster where the statute automatically conferred citizenship on legitimate children when the parent with sole custody after a legal separation naturalizes and on out of wedlock children only when the mother naturalizes. The court further held that petitioner had not satisfied the requirements of issue preclusion, and even if he could overcome that obstacle, preclusion still would not apply given the criminal misconduct apparent in his case.

Defendant was sentenced with a sixteen-level enhancement under U.S.S.G. 2L1.2 after he pleaded guilty to illegal reentry in violation of 8 U.S.C. 1326. At issue was whether the district court's application of the enhancement was erroneous where defendant's prior 2006 robbery conviction was not a crime of violence. The court held that the district court did not err in finding that defendant's 2006 robbery conviction qualified as a crime of violence and accordingly applied the sixteen-level sentencing enhancement where the district court was not in error in relying on the Government's proffer because defendant adopted the truth of the proffer of facts, which conceded that the facts in the plea agreement established that his conduct fell well within the generic definition of robbery.

The petitioner entered the United States without authorization from the Ivory Coast in 2000, leaving his family behind. His application for asylum, based on two incidents of arrest and detention, was denied, and he was deemed eligible for removal. The Board of Immigration Appeals and the First Circuit affirmed, noting inconsistencies in the application and testimony, lack of corroboration, and the petitioner's evasive answers. The finding that the petitioner's testimony was not credible was supported by substantial evidence.

Defendants, both Mexican citizens, were arrested and charged with illegal entry into the United States in violation of 8 U.S.C. 1325. Defendants appeared at a group plea hearing in the United States District Court for the District of Arizona as part of the district's Operation Streamline. At issue was whether the taking of guilty pleas at a large group plea hearing violated the Fifth Amendment right to due process where defendants contend that the record did not disclose that they voluntarily and understandably pleaded guilty. The court concluded that, because they were not faced with a silent record, defendants must demonstrate that any error in the proceeding or in the transcript was plain and affected their substantial rights. Namely, they must show a reasonable probability that, but for the error, they would not have entered their pleas. The court also held that, because defendants did not even suggest, much less show, that they would not have pleaded guilty if the plea hearing had been more individualized, it could not conclude that there was any plain error. Accordingly, the judgment was affirmed.

Petitioner, a native of Guatemala, appealed from a final order of removal by the Board of Immigration Appeals ("BIA") seeking review of the BIA's decision to reverse itself by granting the government's motion for reconsideration and vacating the Board's prior decision that had allowed petitioner to reopen his case. At issue was the BIA's decision to rescind its sua sponte grant of petitioner's untimely motion to reopen on the basis of the departure bar. The court remanded and held that the BIA should determine whether petitioner's motion to reopen was timely filed pursuant to 8 U.S.C. 1229(c)(7)(C) under the doctrine of equitable tolling, given his claim of ineffective assistance of counsel, and if so, rule on the motion, whether on the basis of the departure or other grounds.

Petitioner and her son are Estonian citizens who are ethnically Russian; her husband is a Russian citizen. All three came to the United States legally and sought asylum and withholding of removal, claiming past persecution on account of their Russian ethnicity and fear of future persecution. They claim that petitioner's Estonian citizenship was revoked after Estonia regained independence from the USSR; Estonia invalidated Russian medical degrees, limiting job opportunities for petitioner; petitioner's son received a delayed diagnosis of a genetic defect, PKU, and inferior health care on account of his ethnicity; and that an older son, residing in Estonia, has been subjected to mistreatment based on ethnicity. The immigration judge denied asylum and withholding of removal. The Board of Immigration Appeals affirmed. The Sixth Circuit vacated, finding that the BIA did not consider whether revocation of citizenship on account of ethnicity is persecution, and that the BIA lacked substantial evidence to support its conclusion that petitionerâs job limitations were neither persecution nor on account of ethnicity.

Petitioner was removed from the United States in 1987, returned and served four years in the Oregon penitentiary for rape, and was deported again in 1994. He returned and used various aliases until, in 2001, after pleading guilty to a felony in Michigan, an immigration judge entered an order of voluntary departure. He failed to depart and was apprehended in 2008. After stating that he would review the presentence report before deciding whether to accept the unconditional guilty plea to illegal reentry after previous deportation following an aggravated felony conviction, in violation of 8 U.S.C. 1326 (a), the district judge denied a motion to withdraw the unaccepted plea and to dismiss the indictment as barred by the statute of limitations. The Sixth Circuit vacated and remanded. Under Federal Rule 11 (d) the reason or motive for the motion to withdraw could not be questioned; the court lacked discretion to deny the motion. The motion to withdraw the plea was not conditioned on the outcome of the motion to dismiss.