March 31, 2015

Colorado Court of Appeals: Defendant Has Right to Withdraw Plea as Void Ab Initio Even When Deferred Judgment Completed

The Colorado Court of Appeals issued its opinion in People v. Corrales-Castro on Thursday, March 26, 2015.

Deferred Judgment—Successful Completion of Sentence—Withdrawal of Guilty Plea—Jurisdiction—Immigration Consequences—Voluntary—Unconstitutional—Ineffective Assistance of Counsel.

In 2009, defendant pleaded guilty to criminal impersonation and DUI. The district court imposed a one-year deferred judgment and sentence on the criminal impersonation count, and one year of probation on the DUI count. In 2010, defendant successfully completed the conditions of the deferred judgment and probation. The district court withdrew the guilty plea on the criminal impersonation count, dismissed that count, and closed the case. In 2013, defendant filed a Crim.P. 32(d) motion to withdraw his guilty plea to criminal impersonation, alleging ineffective assistance of counsel. The district court denied the motion, holding that it lacked jurisdiction to consider defendant’s motion to withdraw his guilty plea.

On appeal, defendant argued that the district court erred when it held it did not retain jurisdiction to consider his motion. When a guilty plea that is withdrawn after the successful completion of a deferred judgment may nevertheless result in the removal of a defendant from the United States (or the defendant’s inability to re-enter the country), Crim.P. 32(d) authorizes the defendant to challenge the constitutionality of the plea, regardless of its prior withdrawal. Here, defendant claimed that ineffective assistance of counsel rendered his guilty plea involuntary and thus unconstitutional because his defense counsel had failed to inform him that his guilty plea to criminal impersonation could have negative federal immigration consequences, even if he successfully completed the conditions of the deferred judgment. Furthermore, under the circumstances presented here, a Crim.P. 32(d) motion is not subject to the time limits of CRS § 16-5-402(1), and defendant’s motion is not time barred by that statute. Accordingly, the district court retained jurisdiction to decide defendant’s motion, the order denying defendant’s motion to withdraw his guilty plea under Crim.P. 32(d) was reversed, and the case was remanded for a determination of defendant’s Crim.P. 32(d) motion.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: United States v. Black Did Not Change Tenth Circuit Precedent

The Tenth Circuit Court of Appeals issued its opinion in United States v. Garcia-Ramirez on Wednesday, February 18, 2015.

Marcos Garcia-Ramirez entered into a plea agreement that included an appeal waiver, pleading guilty to one count of illegal reentry into the United States and receiving a 19-month sentence. Despite the appeal waiver, Garcia-Ramirez challenged his sentence as “unreasonable,” arguing simply that the court should exercise its discretion to bypass any decision on whether to enforce an appeal waiver pursuant to United States v. Black, 773 F.3d 1113, 1115 n.2 (10th Cir. 2014).

The Tenth Circuit noted that Garcia-Ramirez’s argument is based on a misreading of BlackBlack did not change the Tenth Circuit’s judicial jurisprudence but merely addressed a matter of judicial economy in deciding cases. United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004), continues to be binding precedent regarding enforceability of appeal waivers, and since Garcia-Ramirez failed to cite even a single Hahn factor, his appeal failed and the motion to enforce was granted.

Tenth Circuit: Acquittal on Drug Trafficking Charges Does Not Preclude Immigration Removal

The Tenth Circuit Court of Appeals issued its opinion in Mena-Flores v. Holder on Friday, January 23, 2015.

Gustavo Mena-Flores entered the United States illegally in 1990. In 2006, the Department of Homeland Security initiated removal proceedings. Mr. Mena-Flores admitted he was “undocumented,” but sought permanent residency based on his marriage to a U.S. citizen. The Department contended Mr. Mena-Flores was not eligible for residency due to criminal activity, stemming from an arrest of Mr. Mena-Flores on charges of drug trafficking.

Mr. Mena-Flores’ brother, Santiago, ran a drug trafficking organization. During his arrest and indictment, four witnesses identified Mr. Mena-Flores as involved in Santiago’s organization. Although Mr. Mena-Flores was eventually acquitted of all charges, the Department argued he should be denied residency due to “reason to believe” he could have been involved in the drug trade. The immigration judge granted Mr. Mena-Flores’ request for adjustment in status, but the Department appealed, and the BIA remanded to the immigration judge to consider all evidence of drug trafficking activity. On remand, the immigration judge denied Mr. Mena-Flores’ petition, finding there was reasonable, substantial, and probative evidence creating a reason to believe he had been involved in drug trafficking.

Mr. Mena-Flores appealed to the BIA, which upheld the immigration judge’s decision. He appealed the BIA’s decision to the Tenth Circuit. He then hired new counsel, who urged the BIA to reopen the case to consider new evidence. Mr. Mena-Flores argued his trial counsel was ineffective by failing to present the evidence earlier. The BIA denied the motions and Mr. Mena-Flores appealed.

Before addressing the merits of Mr. Mena-Flores’ appeals, the Tenth Circuit addressed the Department’s arguments that it lacked jurisdiction to hear the appeal. The Department argued 8 U.S.C. § 1252 barred review of (1) orders against aliens who are removable because of participation in drug trafficking, (2) orders involving discretionary relief, and (3) unexhausted arguments.

The Tenth Circuit extensively evaluated the term “removable” and determined that, although there was an inference Mr. Mena-Flores was involved in drug trafficking, he was not “removable” based on the drug trafficking because he was being removed for lack of documentation. The Department next argued that since adjustment in status involves a form of discretionary relief, the Tenth Circuit lacked jurisdiction. The jurisdictional bar in 8 U.S.C. § 1252(a)(2)(B)(i) does not apply to the nondiscretionary aspects of relief. Finally, the Department argued Mr. Mena-Flores had not exhausted his administrative remedies, but the Tenth Circuit disagreed.

Addressing the merits of the appeal, the Tenth Circuit evaluated whether the BIA’s conclusion that Mr. Mena-Flores’ participation in drug trafficking precluded permanent residency was supported by substantial evidence. The Tenth Circuit looked at the inferences that Mr. Mena-Flores participated in drug trafficking and noted that he bore the burden of proof to show he was not involved in the drug trade. The Tenth Circuit would uphold the BIA’s determination if the evidence was “reasonable, substantial and probative.”

The Tenth Circuit found no error in the BIA’s determination. Witness statements, a special agent’s affidavit, and Mr. Mena-Flores’ testimony all influenced the immigration judge’s decision that Mr. Mena-Flores was not eligible for an adjustment in status due to his participation in drug trafficking activity. Because Mr. Mena-Flores bore the burden of proof, the Tenth Circuit found no error in the BIA’s decision. The evidence presented by Mr. Mena-Flores that tended to show non-involvement did not outweigh the inference created by the government’s evidence.

Mr. Mena-Flores also appealed the BIA’s denial of his motion to reopen. Although he argued that he had presented new evidence to the BIA, the Tenth Circuit disagreed. Mr. Mena-Flores’ counsel’s discretionary and tactical decisions to include or exclude evidence did not constitute ineffective assistance.

The Tenth Circuit found that Mr. Mena-Flores failed to meet his burden of proof, and affirmed the BIA’s decisions.

Colorado Court of Appeals: Suppression Motion Under Immigration Reform and Control Act Would Not Have Altered Verdict

The Colorado Court of Appeals issued its opinion in People v. Vicente-Sontay on Wednesday, December 31, 2014.

Immigration—Ineffective Assistance of Counsel—Plea—Voluntary—Interpreter.

Defendant, an undocumented noncitizen of the United States, completed a federal I–9 employment-eligibility verification form and began work for a company in Greeley (employer). On his verification form, he used a Social Security card and Missouri identification card, claiming to be a U.S. citizen named Marco Antonio Perez. During a routine audit, an agent from the Department of Homeland Security confirmed an outstanding Florida warrant for tax fraud against Perez and notified the Greeley police of this warrant. Believing that they were arresting Perez, the police arrested defendant. Defendant then admitted his real name to the police and the fact that he had purchased a fraudulent Social Security card and Missouri identification card for $150. He pleaded guilty to criminal impersonation.

On appeal, defendant contended that the post-conviction court erred in rejecting his three ineffective assistance of counsel claims. The Court of Appeals disagreed. First, a suppression motion under the Immigration Reform and Control Act of 1986 (IRCA), even if successful, would not have altered the verdict had defendant proceeded to trial. Further, defendant failed to show that he would not have pleaded guilty had counsel properly investigated and pursued a suppression motion under the IRCA. Second, the immigration consequences of defendant’s conviction were not succinct, clear, or explicit. As a result, plea counsel was only required to advise defendant that his pending criminal charges may have carried a risk of adverse immigration consequences, which counsel did. Third, because defendant’s eligibility for such relief was unclear, plea counsel properly advised him that his conviction might carry a risk of adverse immigration consequences. Finally, the post-conviction court did not err in rejecting defendant’s claim of ineffective assistance based on counsel’s not obtaining a K’iche interpreter for him. Defendant spoke sufficient Spanish to engage in meaningful communications with his plea counsel (with the aid of Spanish interpreters) and to navigate the judicial system. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Deported Defendant’s Appeal Not Moot Where He is Not Barred from Reentry

The Colorado Court of Appeals issued its opinion in People v. Calderon on Thursday, October 23, 2014.

Probation Revocation—Due Process.

In 2012, defendant pleaded guilty to attempted first-degree trespass of an automobile with the intent to commit a crime. He was sentenced to two years of intensive supervised probation, with ninety days in jail.

A few months later, defendant’s probation officer filed a probation revocation complaint. At the revocation hearing, the officer testified she had never met with defendant because he had been released to jail directly into the custody of Immigration Customs Enforcement (ICE). The district court found that defendant had violated the terms of his probation and resentenced him to two years of intensive supervised probation. Defendant filed a motion for reconsideration, which was denied.

On appeal, defendant argued that his due process rights were violated when his probation was revoked based on a violation of a condition of probation. He claimed he did not receive either notice of the probation conditions when he was sentenced to probation, or written notice of those conditions in the revocation complaint. It was undisputed that defendant did not receive written notice of his probation conditions, and there was no evidence that defendant had actual notice of the probation conditions. Therefore, the Court of Appeals reversed the order revoking probation.

The Court further held that defendant was deprived of his due process right to written notice in the revocation complaint of the condition of probation he allegedly violated. Defendant had a due process right and a statutory right to such notice. The orders were reversed and the case was remanded to the district court to reinstate defendant’s original sentence to probation.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Withdrawn Plea Constitutes “Conviction” of Felony Under Federal Immigration Law

The Colorado Court of Appeals issued its opinion in People v. Espino-Paez on Thursday, September 25, 2014.

Guilty Plea—Deferred Judgment—Federal Immigration Law—Residency—Crim.P. 32(d) and 35(c)—Ineffective Assistance of Counsel—Jurisdiction.

Defendant, a Mexican citizen, pleaded guilty to the use of a schedule II controlled substance. He received a deferred judgment for one year on the condition that he successfully complete drug and alcohol treatment. After he completed the treatment, the district court permitted him to withdraw the plea, and the court dismissed the case with prejudice. Defendant thereafter sought permanent residency in the United States, which was denied because a withdrawn plea in a Colorado state court constitutes “conviction” of a felony under federal immigration law. Defendant filed a post-conviction motion seeking to withdraw his plea pursuant to Crim.P. 35(c) and Crim.P. 32(d) based on ineffective assistance of counsel, which was denied.

On appeal, defendant contended that the district court erred in summarily denying his Crim.P. 35(c) motion. However, a deferred judgment is not reviewable under Crim.P. 35(c) unless it is revoked and a judgment is entered.

Defendant further contended that the district court abused its discretion in failing to consider his Crim.P. 32(d) motion to withdraw his guilty plea, and requested that the case be remanded for that purpose. Because defendant had already successfully completed his deferred judgment, the district court did not have jurisdiction to rule on defendant’s motion. The appeal challenging the order denying relief was dismissed and the order denying relief was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Attorney’s Failure to Submit Evidence of Residence Constituted Ineffective Representation in Removal Proceeding

The Tenth Circuit Court of Appeals issued its opinion in Martinez Molina v. Holder on Tuesday, August 19, 2014.

Alberto Martinez Molina and Cristina Ramirez Rivera, a married couple, are Mexican citizens subject to final orders of removal from the United States. The government began removal proceedings on October 16, 2008, and, in order to cancel the removal, the couple had to show continuous presence in the United States for the past ten years, beginning October 16, 2008. At a 2008 hearing, the couple’s first attorney submitted paystubs showing that Mr. Martinez had worked in the United States since 1998 and vaccination records showing that the couple’s minor child had been vaccinated throughout 1998. Following this hearing, the couple relocated and obtained the services of a second attorney, Mr. Senseney. At the second hearing, Senseney presented evidence of residence from 1999 to 2010, but did not present any evidence regarding 1998. The immigration judge denied relief, relying in part on the missing documentation but also relying on discrepancies in the couple’s testimony. Senseney appealed to the BIA but did not challenge any of the immigration judge’s rulings. The BIA dismissed the appeal.

After the dismissal, the couple hired a third attorney, who petitioned to reopen based on ineffective representation. The couple argued that they had received ineffective representation from Senseney based on his failure to submit evidence of residence during 1998. The BIA denied the motion, ruling that it appeared from the record that the evidence was substantially similar to that relied upon by the IJ. The couple appealed to the Tenth Circuit on two grounds: (1) the immigration judge failed to consider all of the evidence, including the evidence submitted at the 2008 hearing by their first attorney, and (2) ineffective representation.

The Tenth Circuit declined to address the couple’s first argument because it lacked jurisdiction to do so. The couple had not appealed that ruling to the BIA, and without exhaustion of lower court remedies, the Tenth Circuit had no jurisdiction to hear the issue. As to the second argument, the Tenth Circuit affirmed the BIA’s decision as to Ms. Ramirez but reversed as to Mr. Martinez.

The Tenth Circuit found that the BIA abused its discretion in denying Mr. Martinez’s petition to reopen because it ruled that the evidence regarding Mr. Martinez’s presence in 1997 and 1998 that was attached to his petition appeared the same or substantially similar to that considered by the immigration judge. However, the immigration judge did not consider evidence from 1998 because she referenced the absence of evidence proving residence in October 1998. The Tenth Circuit remanded to the BIA for further findings regarding the 1998 evidence.

As to Ms. Ramirez, the Tenth Circuit found no abuse of discretion. The vaccination records from 1998 that she submitted with her petition to reopen were already in the record, leading the BIA and Tenth Circuit to conclude the immigration judge considered this evidence.

The BIA’s denial was affirmed as to Ms. Ramirez and reversed and remanded as to Mr. Martinez.

Tenth Circuit: Application for Cancellation of Removal Deemed Abandoned by Failure to Complete Biometric Requirement

The Tenth Circuit Court of Appeals issued its opinion in Ramirez-Coria v. Holder on Friday, August 1, 2014.

Gustavio Ramirez-Coria entered the United States illegally in 1995. He was placed in removal proceedings in April 2009 and conceded removability. At a second hearing in May 2009, Ramirez-Coria requested a continuance to complete his application for cancellation of removal (Form EOIR-42B), and his hearing was continued to June 2009. At the June hearing, Ramirez-Coria submitted Form EOIR-42B, but he did not submit the required biometric information (his fingerprints), despite the instructions on Form EOIR-42B directing him to attend an appointment at an Application Support Center (ASC) and obtain a biometrics completion notice to attach to his application. The immigration judge (IJ) rescheduled his hearing to October 2010 and informed Ramirez-Coria that he was responsible for completing the biometrics, and that failure to do so could result in a denial of his petition. The IJ later rescheduled the hearing until January 2012.

Ramirez-Coria’s counsel moved to withdraw prior to the January 2012 hearing, claiming that his client had lost all interest in his own case. New counsel entered an appearance and the hearing was rescheduled for March 2012. At the March hearing, Ramirez-Coria again submitted Form EOIR-42B without the biometric information. His counsel told the IJ that Ramirez-Coria had gone to an ASC the previous day and provided his fingerprints, but the ASC would not complete the process because he did not have any form of ID, including his birth certificate. The government stated that they had no record Ramirez-Coria had submitted his fingerprints. The IJ determined that Ramirez-Coria’s application for cancellation of removal should be deemed abandoned because at no time in the 2 1/2 years his case had been pending had Ramirez-Coria attempted to obtain his birth certificate, and his counsel had never informed the court he was having trouble completing the biometric requirement. The IJ dismissed his application but granted Ramirez-Coria voluntary departure. Ramirez-Coria appealed to the BIA, which agreed with the IJ and dismissed his appeal.

The Tenth Circuit reviewed the BIA’s decision for abuse of discretion and found none. Ramirez-Coria raised several arguments on appeal that were contradicted by the record. Ramirez-Coria had been informed by the IJ that his application could be dismissed if he did not complete the biometrics, yet he failed to do so. Ramirez-Coria claimed he had good cause for his failure to complete the biometrics because his family in Mexico would not send him his birth certificate. However, the BIA rejected this claim, noting that at some point within the more than 2 1/2 years Ramirez-Coria could have petitioned Mexican authorities for the documentation. The Tenth Circuit ruled that the IJ acted well within his authority in determining that Ramirez-Coria abandoned his application, and upheld the decision of the IJ and BIA.

Tenth Circuit: District Court Lacked Jurisdiction to Amend Naturalization Petition

The Tenth Circuit Court of Appeals issued its opinion in McKenzie v. U.S. Citizenship & Immigration Services on Friday, August 1, 2014.

Dr. Ernest John McKenzie was born in Canada but naturalized to the United States. He discovered at some point that his Canadian birth certificate contained the wrong birth date, and, after naturalizing, had the Canadian birth certificate corrected to reflect his actual date of birth. He then applied to the USCIS to have his naturalization certificate corrected with the proper birth date, but his application was denied pursuant to 8 C.F.R. § 338.5(e). Dr. McKenzie then petitioned the district court to amend his certificate of naturalization, but that petition was dismissed for lack of subject matter jurisdiction. The district court noted that even if § 334.16(b) could confer jurisdiction, it did not apply to naturalizations occurring after 1991, when naturalization authority was transferred to the attorney general. Dr. McKenzie appealed to the Tenth Circuit.

The Tenth Circuit first laid out the legal background of the authority of courts to approve, deny, amend, or otherwise review petitions of naturalization, noting that all authority of the courts was transferred to the attorney general in 1991. The Tenth Circuit then looked at Dr. McKenzie’s specific claims and determined that nothing in § 334.16 grants courts the authority to amend certificates of naturalization. The Tenth Circuit commented that although arguments that a court lacks jurisdiction can be brought at any time, arguments in support of a court’s jurisdiction must be preserved in the lower court to be heard on appeal. Because Dr. McKenzie failed to preserve two of his arguments supporting the Tenth Circuit’s jurisdiction, the court declined to address them. Congress transferred authority to hear naturalization petitions away from the courts long before Dr. McKenzie’s naturalization, and neither the district court nor the Tenth Circuit had jurisdiction to decide whether to amend his naturalization certificate.

The district court’s dismissal was affirmed.

Colorado Court of Appeals: Appeal of Deported Immigrant Denied as Moot Because Probation Completed and Reentry Prohibited

The Colorado Court of Appeals issued its opinion in People v. Garcia on Thursday, July 3, 2014.

Probation Revocation—Mootness.

In 2010, Garcia pleaded guilty to criminal impersonation for providing a false name and false identification documents to police officers when they pulled him over for driving under the influence (DUI). He was sentenced to sixty months’ probation and one year in jail, on condition that he leave the United States and not reenter without inspection and a visa. Garcia’s remaining jail time was waived and he was released to the custody of Immigration and Customs Enforcement (ICE) for deportation.

One year later, Garcia returned to the United States. He was arrested for a traffic violation and charged with violating the conditions of his probation. The trial court revoked his probation after finding he had reentered the United States without a valid passport or visa. He was resentenced to one year in the custody of the Department of Corrections, with credit for 211 days served. After he completed his sentence, ICE deported him. In 2012, Garcia returned to the United States and ICE deported him again.

Garcia filed a notice of appeal of the revocation of his probation and the People filed a motion to dismiss, arguing the appeal was moot. The Court of Appeals granted the People’s motion.

The doctrine of mootness precludes the Court from reviewing a case in which its decision will have no practical effect on an actual or existing controversy. Here, the Court found that the appeal was moot because: (1) Garcia had already served his sentence; (2) he was not contesting his conviction, which could affect his admission to the United States; and (3) he is permanently barred from reentering the United States because criminal impersonation is a crime involving moral turpitude.

Garcia argued that the Court should reach the merits of the appeal even if it is otherwise moot, because it is capable of repetition without conducting a review, and this presents a matter of public importance involving recurring constitutional violations. The Court disagreed. First, there is no chance that Garcia’s probation will be revoked again because he has completed his sentence, has been deported, and is permanently barred from reentry. Second, this case does not involve a matter of public importance because the appeal only concerned the revocation of Garcia’s probation. Accordingly, the appeal was dismissed.

Summary and full case available here.

Tenth Circuit: Pretrial Confinement Period Included in Calculation of Total Confinement Period for Immigration Purposes

The Tenth Circuit Court of Appeals issued its opinion in Garcia-Mendoza v. Holder on Monday, June 2, 2014.

Enrique Garcia-Mendoza is a citizen of Mexico who lawfully entered the United States in January 1996 as a temporary visitor for six months and never left. In 2010, he was arrested and charged with driving under the influence. He could not afford bond and remained confined during the pretrial period for a total of 104 days. He was sentenced to 270 days with credit for time served, and was released after serving a total of 197 days. Upon release, the Department of Homeland Security seized Garcia-Mendoza and initiated removal proceedings. Petitioner conceded that he exceeded his authorized stay and applied for cancellation of removal. The immigration judge denied his request because Garcia-Mendoza had been confined for more than 180 days and therefore could not meet the good moral character requirement. Subsequently, Garcia-Mendoza petitioned the state trial court for a sentence amendment, alleging that his counsel failed to advise him of the immigration consequences of his guilty plea and requesting the sentence to be reduced to 166 days with no credit for time served in the pretrial period. The court granted the motion, nunc pro tunc, and reduced his sentence. However, the IJ again denied cancellation of removal, because Garcia-Mendoza’s actual time served was greater than 180 days. The BIA upheld the IJ’s decision, and Garcia-Mendoza appealed to the Tenth Circuit.

The Tenth Circuit reviewed 8 U.S.C. § 1101(f)(7) and determined that the clear statutory language did not account for nunc pro tunc sentence adjustments but rather required that no actual period of confinement exceed 180 days. The Tenth Circuit also considered Garcia-Mendoza’s argument that the pretrial confinement period should be excluded because it does not qualify as confinement as a result of a conviction. Upon analysis of circuit precedent, the Tenth Circuit affirmed the BIA’s interpretation of the statute as including the pretrial period when conviction was entered. The decision of the BIA was affirmed.

Tenth Circuit: Immigration Removal Decision Upheld

The Tenth Circuit Court of Appeals published its opinion in Maatougui v. Holder on Thursday, December 26, 2013.

An immigration judge found Nadia Maatougui removable for marriage fraud in 2004. Maatougui, a native and citizen of Morocco who has lived in the United States since 2000, then requested asylum and four other forms of relief from removal. In a written decision in 2009, the IJ denied the requests, and the Board of Immigration Appeals affirmed. Maatougui petitioned for review.

Maatougui claimed the IJ and BIA erred in denying her a hardship waiver and cancellation of removal based on their credibility determinations and the weight they gave the evidence in her case. The Tenth Circuit held it did not have jurisdiction to overturn their credibility determinations or evidence weighing so could not grant relief on that claim.

Maatougui also claimed that changed conditions in Morocco and the ineffective assistance of her prior counsel at a hearing in 2004 merited reopening her case. She failed to present new, material, previously unavailable evidence that justified reopening her case. The BIA’s decision was not insufficient under the circumstances.

The court also held that the BIA did not abuse its discretion in declining to consider the ineffective assistance claim after Maatougui waited over six years to raise it. The court dismissed the first claim (decision on removability) for lack of jurisdiction and denied the petition to review the BIA’s denial of her motion to reopen her case.