Justia Immigration Law Opinion Summaries

Defendant appealed his conviction for attempted entry after deportation on the ground that the district court failed to inform him of the immigration consequences of his plea during the plea colloquy. At issue was whether the district court erred in failing to advise defendant of the immigration consequences of his plea in light of United States v. Amador-Leal. The court held that petitioner had not demonstrated the probability of a different result and thus could not show that the district court's action affected his substantial rights where he failed to assert on appeal that he would not have entered the plea but for the district court's alleged error.

Petitioner appealed the Board of Immigration Appeals ("BIA") decision affirming a finding that his alien transportation conviction in 1984 constituted an aggravated felony and he was therefore ineligible for relief in the form of cancellation of removal. Petitioner also appealed the BIA's dismissal of his motion to reopen and reconsider his guilty plea to the controlled substance charge that resulted in his conviction where he was not adequately informed of the immigration consequences of his plea. At issue was whether petitioner was properly found removable due to his 1984 conviction and therefore ineligible for cancellation of removal. Also at issue was whether the BIA had jurisdiction to review a motion to reconsider and reopen filed after a petitioner had been involuntarily removed from the United States. The court remanded and held that until the BIA determined that petitioner's conviction was not vacated on the merits, petitioner was not properly found removable under the Immigration and Nationality Act on a ground separate and distinct from a pre-1998 aggravated felony conviction. The court also held that the physical removal of petitioner from the United Stated did not preclude him from pursuing a motion to reopen where Congress made clear in passing the Illegal Immigration Reform and Immigration Responsibility Act of 1996 that Congress anticipated that petitioners would be able to pursue relief after departing from the United States.

The petitioner re-entered the United States illegally after being removed in 1997 following convictions related to a hit-and-run. He was caught in 2010. The Department of Homeland Security rejected his petition to stay removal and rescind the 1997 order based on post-1997 decisions under which the underlying convictions would not be characterized as felonies. The Seventh Circuit affirmed, holding that the petition was untimely based on the date on which the petitioner had knowledge of the 2010 removal order. The court declined to characterize the proceedings as denial of a motion to reopen the 1997 order, which would have also been untimely.

The government petitioned for rehearing where petitioner was removed in absentia when he did not know about his removal proceeding hearing because he had moved from his previous address and failed to advise his new lawyer and the immigration court of his whereabouts. At issue was whether the court's original opinion constituted a departure from Ninth Circuit precedent and interpreted too broadly the "exceptional circumstances" safe harbor for aliens removed in absentia. The court granted the petition for rehearing and dismissed the petition for review where petitioner did not demonstrate the diligence necessary for a finding of exceptional circumstances and where there did not exist in the record any likelihood of relief.

In 2007 the Board of Immigration Appeals denied a petition for asylum and to withhold removal brought by an Albanian citizen who had entered the United States illegally. In 2009 the BIA declined to reopen the case to consider a claim for asylum based on health care concerns. The Third Circuit remanded for clarification. The BIA acted within its discretion in finding the motion untimely. There is no time limit on a motion to reopen if conditions in the home country have changed, but there was insufficient proof of such a change in this case. The BIA retained discretion to reopen the case sua sponte. While noting that the BIA's discretion on a sua sponte motion is "essentially complete," the court stated that it may point out a possible misperception of the law. Economic disadvantage is not a "serious harm" that would justify reopening the case, but unavailability of needed health care could qualify in some circumstances.

Petitioner, a native and citizen of India, petitioned for a review of the Board of Immigration Appeals ("BIA") dismissal of his appeal of the Immigration Judge's denial of his application for asylum. At issue was whether petitioner demonstrated "changed circumstances" that justified the untimely filing of his asylum application. The court granted the petition and held that the significance of the changes in conditions in India while petitioner was in the United States demonstrated "changed circumstances" and that the time period of two months, from the time petitioner learned of the changed circumstances and the time he filed for asylum, was reasonable.

Petitioner, a Mexican citizen, petitioned for review of the Board of Immigration Appeal's ("BIA")order of removal where he was convicted of illegally transporting aliens. At issue was whether petitioner's decision to take administrative voluntary departure in lieu of deportation, subsequent to his prior conviction in 1982 for illegal entry into the United States, was under threat of deportation and whether voluntary departure under threat of deportation established a break in continuous residence. The court held that it had no jurisdiction to review petitioner's voluntary departure which required a factual determination and that petitioner's voluntary departure in lieu of deportation interrupted his alleged continuous residence. The court also held that there was therefore no compelling indication that the BIA incorrectly concluded that petitioner was ineligible for lawful permanent resident ("LPR") status based on his 1982 voluntary departure and thus he was ineligible for LPR cancellation of removal.

The defendant entered the U.S. from Canada under a six-month visitor visa and stayed more than half of his life. He was convicted of possession of drug paraphernalia, criminal damage to property, theft under $2,500, and lewd and lascivious conduct under Wisconsin law. The immigration judge held that he was subject to removal. The Board of Immigration Appeals and the Seventh Circuit agreed. Removal for staying longer than permitted by visa can be cancelled under 8 U.S.C. 1229b if an alien has been present for 10 continuous years, has been a person of good moral character, has not been convicted of specific offenses including crimes of moral turpitude, and removal would work a hardship for a parent, child, or spouse who is a citizen or legal permanent resident. A waiver available for convictions relating to petty offenses does not apply to a conviction for possession of drug paraphernalia; offenses relating to controlled substances are crimes of moral turpitude.

The defendant appealed a sentence of 40 months after pleading guilty to illegal reentry of a removed alien following conviction for an aggravated felony. Sentencing guidelines provide a range of 46 to 57 months. The Seventh Circuit affirmed. The court properly considered a prior arrest that did not result in conviction; it had detailed, reliable information about the conduct underlying that arrest. Consideration of other arrests, for which the court did not have detailed information, was harmless error; the judge placed more weight on a prior conviction for drug trafficking and the defendant did not object to consideration of the arrests at the time of sentencing. Although the Seventh Circuit held, after the sentencing, that a court may consider the disparity in guidelines ranges for illegal re-entry, depending on whether the district has a "fast track" program, the district judge properly declined to lower the sentence based on the district's lack of a program. The defendant had not made concessions that would be required by such a program.

After the defendant pled guilty to illegal re-entry by a deported alien, 18 U.S.C. 1326(a), the district court sentenced him to 51 months--the top of the sentencing guidelines range. The Tenth Circuit affirmed, noting that the defendant has been apprehended while trying to enter illegally on eight occasions, has been convicted of drug trafficking, and was arrested for domestic violence. The defendant did not challenge the procedural reasonableness of the sentence and a sentence within the guidelines is presumed to be substantively reasonable. The court adequately expressed its reasoning and acted within the law in considering the defendant's criminal history both as criminal history and as a basis for sentence enhancement.