May 19, 2013

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Bills Regarding Job Protection, Authorization for Foreign Investments, Electric Vehicle Charging Stations, and More Signed by Governor Hickenlooper

May 7, 2013 by Leave a Comment

As the 2013 legislative session winds down, bills continue to reach Governor Hickenlooper’s desk for review and signature. Since January 31, 2013, the governor has signed 169 bills.

Governor Hickenlooper signed the “Job Protection and Civil Rights Enforcement Act,” HB 13-1136, on Monday, May 6, 2013. HB 13-1136 - Concerning the Creation of Remedies in Employment Discrimination Cases Brought Under State Law, by Reps. Claire Levy and Joe Salazar and Sens. Morgan Carroll and Lucia Guzman, establishes provisions for complaining parties who have exhausted administrative remedies to bring actions in state court. It also allows claims to be brought by employees of companies with fewer than 15 employees, which are exempt under Federal anti-discrimination provisions.

On May 5, the governor signed one bill, SB 13-176 - Concerning Authorization for the State Treasurer to Invest State Moneys in Debt Obligations Backed By the Full Faith and Credit of the State of Israel. This bill was sponsored by Sens. Mark Scheffel and Morgan Carroll and Reps. Justin Everett and Angela Williams, and it authorizes the state treasurer to invest state moneys in Israeli bonds.

The governor signed 10 bills on Friday, May 3, 2013. Three of the ten bills signed are summarized here.

  • SB 13-126 - Concerning the Removal of Unreasonable Restrictions on the Ability of the Owner of an Electric Vehicle to Access Charging Facilities, by Sen. Lucia Guzman and Rep. Crisanta Duran. The bill requires landlords and common interest communities to allow unit owners to install electric vehicle charging stations on their own property.
  • HB 13-1167 - Concerning the Collection of Business Information by the Secretary of State, by Reps. Brittany Pettersen and Crisanta Duran and Sen. Larry Crowder. The bill requires the Secretary of State to request certain demographic information from business owners, which will be available to the public on the Secretary of State website. The demographic information includes gender, race, veteran status, disability status, and NAICS code, and submission of the information is voluntary.
  • HB 13-1222 - Concerning the Expansion of the Group of Family Members for whom Colorado Employees are Entitled to Take Leave from Work under the “Family and Medical Leave Act of 1993″, by Rep. Cherylin Peniston and Sen. Jessie Ulibarri. The bill allows employees to take leave under FMLA to care for their partners in civil unions.

On April 29, 2013, the governor signed six bills. These included the long appropriations bill, three Joint Budget Committee bills regarding the General Fund, and a bill to allow students who complete high school in Colorado to qualify for in-state tuition classification (SB 13-033 – Concerning In-State Classification at Institutions of Higher Education for Students who Complete High School in Colorado, by Sens. Angela Giron and Mike Johnston and Reps. Crisanta Duran and Angela Williams.) Governor Hickenlooper also signed the budget bill, SB 13-230, on April 29.

On April 26, 2013, Governor Hickenlooper signed 16 bills. Five of these are summarized here.

  • HB 13-1025 - Concerning an Increase in the Amount of the Authorized Deductible for Workers’ Compensation Insurance Policies, by Rep. Spencer Swalm and Sen. Cheri Jahn. The bill increases the allowable deductible for employers’ workers’ compensation insurance policies.
  • HB 13-1123 - Concerning the Right of a Person to Waive Confidentiality Requirements Protecting Personal Work Information Obtained by the Department of Labor and Employment for Unemployment Benefit Claims to Permit the Department to Forward Certain Information to Potential Employers, by Rep. Tony Exum and Sen. Jim Kerr. The bill allows the Department of Labor and Employment to offer job seekers the opportunity to waive confidentiality so that their personal information may be made available to bona fide employers seeking employees.
  • HB 13-1258 - Concerning Local Government Involvement with Federal Immigration Issues, by Rep. Joe Salazar and Sens. Irene Aguilar and Morgan Carroll. The bill repeals C.R.S. Title 29, Article 29, which required local law enforcement officers to report any suspected illegal immigrants to federal immigration officials.
  • SB 13-048 - Concerning the Use of Highway User Tax Fund Moneys Allocated to Local Governments for Multimodal Transportation Infrastructure, by Sen. Nancy Todd and Reps. Max Tyler and Jeanne Labuda. The bill allows counties and municipalities to spend moneys received from the Highway User Tax Fund on transit-related projects.
  • SB 13-070 - Concerning the Purchase of Vehicles that Operate on Alternative Fuels for the State Motor Vehicle Fleet System, by Sen. Gail Schwartz and Reps. Ray Scott and Max Tyler. The bill requires the Department of Personnel and Administration to report on the number of alternative fuel vehicles purchased, the use of alternative fuel, and a plan to develop the infrastructure necessary to utilize more alternative fuel vehicles.

For a complete list of legislation signed into law by the governor in 2013, click here.

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Tenth Circuit: Denial of Application for Asylum Vacated

May 3, 2013 by Leave a Comment

The Tenth Circuit published its opinion in Karki v. Holder on Tuesday, April 30, 2013.

Petitioner Narendra Raj Karki, a native and citizen of Nepal, petitioned for review of a decision of the Board of Immigration Appeals (BIA) affirming an order of the immigration judge (IJ) that denied his application for asylum and restriction on removal under the Immigration and Nationality Act (INA) and protection under the United Nations Convention Against Torture (CAT).

Karki argued that the BIA and IJ erred in concluding he failed to show past persecution, a well-founded fear of future persecution, and a nexus between the alleged persecution and his political opinion. Karki had presented evidence that he was beaten badly by a group of Maoists who attacked him because of his political opinions. He also presented evidence that a vehicle in which he should have been traveling was bombed by the Maoists and that he was their intended target. The BIA concluded that the Maoists’ actions toward Karki were motivated only by their desire to extort money or recruit him and that “[t]he record does not reflect that Maoists had the intention to persecute [Petitioner] even partly because of his political opinion or a political opinion imputed to him.” The Tenth Circuit held that this conclusion was incorrect so the BIA’s decision could not be upheld on that ground.

The court also held that Karki “suffered past persecution, giving rise to a rebuttable presumption of a well-founded fear of future persecution.” The court granted Karki’s petition for review and remanded the case for determination of “whether Petitioner’s past persecution was sufficiently severe that he did not need to demonstrate a well-founded fear of future persecution, and, if not, (2) whether changed country conditions or the possibility of internal relocation are sufficient to rebut the presumption that he has a well-founded fear of future persecution.”

Karki also argued that the BIA and IJ erred in concluding he had not established his entitlement to relief under the CAT. The IJ and BIA concluded that Karki was not entitled to relief because he had not demonstrated that government officials would be likely to acquiesce in his torture upon his return to Nepal. Karki presented evidence that the Nepalese government is aware of and does not prevent frequent acts of torture committed by Maoists. Karki was not required to show the government would turn a blind eye to specific threats of torture against him in particular.

The court vacated BIA’s affirmance of the ALJ’s decision and remanded on both the petition for asylum and the CAT claim.

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Tenth Circuit: Court Recommends Enforcing Order of Removal of Mexican Citizen

April 25, 2013 by Leave a Comment

The Tenth Circuit published its opinion in Salgado-Toribio v. Holder on Tuesday, April 23, 2013.

Petitioner Lucio Salgado-Toribio is a citizen of Mexico who entered the United States without inspection. An immigration judge found him removable as an alien pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). The immigration judge granted Petitioner’s request for voluntary departure. Petitioner appealed to the Board of Immigration Appeals (BIA), which dismissed the appeal.

Petitioner, acting pro se, sought review of a Board of Immigration Appeals (BIA) order denying his motion to reopen removal proceedings. By the time the case reached the Tenth Circuit, Petitioner had been using the federal courts’ procedures to put off removal for more than three years since an immigration judge found him removable. This proceeding was the third time Petitioner sought review of an administrative decision over which the Tenth Circuit had no jurisdiction. He did not assert a nonfrivolous constitutional claim sufficient to give the Court jurisdiction. Petitioner repeatedly took advantage of the federal court of appeals’ stay procedures.

The Tenth Circuit denied Petitioner’s motion to proceed in forma pauperis, dismissed his petition for review, and recommended that the Department of Homeland Security enforce the order of removal immediately.

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HB 13-1258: Repealing Title 29, Article 29, of the Colorado Revised Statutes Regarding Reporting Persons Illegally in the U.S. to Federal Officials

April 11, 2013 by Leave a Comment

On March 8, 2013, Rep. Angela Williams and Sen. Andy Kerr introduced HB 13-1258 - Concerning Local Government Involvement with Federal Immigration Issues. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law prohibits local governments from enacting any policy that limits or prohibits a local peace officer, official, or employee from communicating or cooperating with federal officials with regard to the immigration status of any person in the state. The law also requires a peace officer who has probable cause to believe an arrestee is not legally present in the U.S. to report that person to the U.S. immigration and customs enforcement office. The governing body of each local government is currently required to provide notice to peace officers of the duty to cooperate with state and federal officials with regard to enforcement of state and federal immigration laws and to provide written confirmation that it has done so to the general assembly on an annual basis. The bill repeals these provisions. The bill cleared the House and passed 2nd Reading in the Senate on April 5.

Since this summary, the bill passed Third Reading in the Senate on April 8.

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Colorado Court of Appeals: Plea Counsel for Criminal Defendant Should Have Advised of Mandatory Deportation but No Prejudice Shown

March 7, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Campos-Corona on Thursday, February 28, 2013.

Crim.P. 35(c)—Ineffective Plea Counsel.

Defendant appealed from an order denying his motion for relief pursuant to Crim.P. 35(c). The judgment was affirmed.

Defendant was charged with one count of possession of a schedule II controlled substance with intent to distribute, and one count of conspiracy to distribute a schedule II controlled substance. He pleaded guilty to an added count of distribution of a schedule II controlled substance in exchange for dismissal of the original charges and a more favorable sentencing range. After successfully completing his sentence to probation, he faced deportation proceedings.

Defendant filed a Crim.P. 35(c) motion to seek to withdraw his plea on the ground that plea counsel was ineffective in advising him regarding the immigration consequences of his guilty plea. At the post-conviction hearing, plea counsel testified that he advised defendant that a guilty plea would make renewing his permanent residence status difficult, if not impossible, and he would likely be deported. Plea counsel stated that defendant wanted to plead guilty to try to be sentenced to probation and would deal with the immigration issue later. Plea counsel acknowledged that he had not told defendant that the plea would subject him to a mandatory removal provision from which no discretionary relief could be had.

Defendant testified that plea counsel advised him that he “would [or] could have problems” renewing his permanent resident status. He gave conflicting testimony as to whether he was advised he could be deported as a result of pleading guilty. He testified that if he had been told in absolute terms that he would be deported, he would not have entered a guilty plea. The post-conviction court found plea counsel’s representations were adequate regarding potential deportation.

On appeal, defendant argued it was error to deny his petition for post-conviction relief. The Court of Appeals found that counsel’s performance was deficient, but agreed the petition was properly denied for failure to sufficiently demonstrate prejudice. A criminal defendant is entitled to relief for ineffective assistance of counsel by showing that (1) counsel’s performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that but for counsel’s errors, the defendant “would not have pleaded guilty and would have insisted on going to trial.”

Here, 8 USC § 1227(a)(2)(B)(i) mandates removal for violation of any law relating to controlled substances other than a single offense involving possession of marijuana for personal use of thirty grams or less. Defendant admitted a significant quantity of cocaine was found in his possession and at his home. He was not advised that pleading guilty would subject him to mandatory, permanent removal. Plea counsel’s performance was not reasonable and the trial court’s finding otherwise was in error.

However, the Court agreed that even if inadequate advice was provided, defendant failed to show he was prejudiced. The Court deferred to the trial court’s findings that his testimony established only that he wanted to avoid prison and therefore it would not have been rational for him to proceed to trial. The order was affirmed.

Summary and full case available here.

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SB 13-033: Providing for In-State Tuition Classification at Colorado Institutions of Higher Education for Students Completing High School in Colorado

February 7, 2013 by Leave a Comment

On Tuesday, January 15, 2013, Sen. Angela Giron introduced SB 13-033 – Concerning In-State Classification at Institutions of Higher Education for Students who Complete High School in Colorado. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires an institution of higher education (institution) in Colorado to classify a student as an in-state student for tuition purposes if the student:

  • Attends a public or private high school in Colorado for at least three years immediately preceding graduation or completion of a general equivalency diploma (GED) in Colorado; and
  • Is admitted to a Colorado institution or attends an institution under a reciprocity agreement.

In addition to the above requirements, a student who does not have lawful immigration status must submit an affidavit stating that the student has applied for lawful presence or will apply as soon as he or she is able to do so. These students shall not be counted as resident students for any other purpose, but are eligible for the college opportunity fund stipend pursuant to the provisions of that program, and may be eligible for institutional or other financial aid.

The bill creates an exception to the requirement of admission to an institution within 12 months after graduating or completing a GED for certain students who either graduated or completed a GED prior to a certain date and who have been continuously present in Colorado for a specified period of time prior to enrolling in an institution.

The bill exempts persons receiving educational services or benefits from institutions of higher education from providing any required documentation of lawful presence in the U.S. On Jan. 24, the Education Committee approved and the unamended bill to the Appropriations Committee.

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Tenth Circuit: Upward Departure From Sentencing Guidelines Not Abuse of Discretion When Evidence Relied On Met Minimum Indicia of Reliability

January 24, 2013 by Leave a Comment

The opinion in United States v. Caiba-Antele was originally filed as unpublished December 7, 2012. On January 23, 2013, the Tenth Circuit sua sponte directed that it be published and reissued nunc pro tunc to the original filing date.

Jose Caiba-Antele pled guilty to reentry of a removed alien, in violation of 8 U.S.C. § 1326. He appealed the district court’s imposition of a variant sentence of 51 months. He originally had pled guilty pursuant to a plea agreement but the district court judge rejected the agreement because it did not reflect charges brought against the defendant by the State of New Mexico in 2007 for five counts of criminal sexual penetration of a child under thirteen and one count of criminal sexual penetration of an adult by force or coercion. Caiba-Antele was not convicted of these charges; the case was dropped because one of the victims refused to testify and the psychological damage to another from testifying would have been too great. The district court held a hearing where detectives who had interviewed the victims testified that they found the victims credible based on their observations and experience.

If the defendant had been convicted of the state charges, his guidelines sentencing range on the reentry charge would have been 46 to 57 months, versus the 8 to 14 months without those convictions. The district court found it more likely than not the defendant had committed the sexual assaults and considered that, along with other factors, in making the upward departure from the sentencing guidelines.

The defendant made a Due Process Clause challenge, claiming that the sentence was procedurally unreasonable because it was based on evidence that lacked sufficient indicia of reliability. In sentencing, a district court may rely on hearsay evidence as long as the evidence is sufficiently reliable. The Tenth Circuit found the evidence the court relied on did meet the standard of minimum indicia of reliability. The detectives observed the victims first-hand, the testimony of the victims corroborated each other and none of the victims changed their version of events or recanted after the initial interviews were conducted. The court affirmed the sentence.

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Colorado Court of Appeals: Prosecution Not Required to Prove that Defendant’s Passengers Were in U.S. Illegally but Only Had to Prove Defendant’s Intent

January 22, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Fuentes-Espinoza on Thursday, January 17, 2013.

Human Smuggling—Federal Immigration Laws—Intent—Evidence—Prosecutorial Misconduct.

Defendant appealed the judgment of conviction entered against him after being found guilty of transporting seven passengers in violation of Colorado’s human smuggling statute, CRS § 18-13-128. The judgment was affirmed.

Defendant argued that Colorado’s human smuggling statute is preempted by federal law. However, the Court of Appeals would not consider the unpreserved constitutional attack on the statute in this case involving substantive preemption.

Defendant argued that Colorado’s human smuggling statute requires the prosecution to prove that the person to be transported violated federal immigration laws. Here, none of the alleged passengers was available to testify at trial, and the prosecution did not establish whether any of them was illegally present in the United States. However, the prosecution must prove only that the defendant had “the purpose of assisting another personto enter, remain in, or travel through the United States or the state of Colorado in violation of immigration laws.” Because the statute’s focus is on the defendant’s intent, the prosecution is not required to prove that the defendant’s passenger or intended passenger was illegally present in the United States or Colorado, in violation of immigration laws.

Defendant contended that the evidence was insufficient to support his convictions because it did not establish that he transported any of the persons named in the complaint. Defendant and the seven alleged passengers were taken into custody outside a gas station and convenience store. There was sufficient evidence that the seven persons named in the complaint were traveling together in defendant’s van, which supported defendant’s conviction.

Defendant also contended that the trial court erred by allowing the arresting officer to testify that, when the seventh alleged passenger approached, the officer “found out that he was a passenger.” There was no reasonable probability that defendant was prejudiced by the admission of the officer’s statement, because there was sufficient evidence to support defendant’s convictions as to the seventh passenger. Therefore, any error was harmless.

Defendant also contended that reversal was required because the prosecutor committed misconduct in closing argument by suggesting that defendant lied to police. Although the prosecutor used the word “lie” in his closing argument, he was characterizing defendant’s contradictory statements. Thus, any such error was harmless.

Summary and full case available here.

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Tenth Circuit: Continued Terry Stop Violates Fourth Amendment Once Initial Reasonable Suspicion is Dispelled

January 11, 2013 by Leave a Comment

The Tenth Circuit published its opinion in United States v. De La Cruz on Wednesday, January 10, 2013.

Enrique De La Cruz appealed the denial of his motion to suppress evidence obtained during an investigative seizure. Three Immigration and Customs Enforcement (“ICE”) agents were at a truck wash in Tulsa. They were looking for a man thought to be unlawfully in the United States.  The man purportedly worked at the truck wash. Because the truck wash was closed, there was no one there when the agents arrived. Soon thereafter a car with dark tinted windows drove up to the truck wash to drop off a passenger. The car’s driver was De La Cruz, not the man ICE was looking for, although ICE did not know that at the time. De La Cruz’s brother ran from the car after the ICE agents ordered De La Cruz to get out of the car. After the agents returned with the brother, they figured out De La Cruz was not who they sought but continued to detain him and asked for identification. He gave them a fake ID and they discovered he was in the U.S. illegally and had previously been deported.

In a 2-1 decision, the Tenth Circuit held that although the agents were justified in their initial stop, the duration of De La Cruz’s detention could not be justified by that initial suspicion. Once their reasonable suspicion that he was the person they sought was dispelled, “[e]ven a very brief extension of the detention without consent or reasonable suspicion violates the Fourth Amendment.” The fact that the defendant’s brother ran did not justify the continued seizure because the person who is detained must be suspected of criminal activity.

The court disagreed with the district court’s interpretation of Immigration and Naturalization Service v. Lopez-Mendoza when it held that the defendant’s identification was not suppressible even if the seizure was unlawful. The Tenth Circuit had previously held that “the “identity” language in Lopez-Mendoza refers only to jurisdiction over a defendant and it does not apply to evidentiary issues pertaining to the admissibility of evidence obtained as a result of an illegal arrest and challenged in a criminal proceeding.” Therefore, the court reversed the denial of De La Cruz’s suppression motion,

 

 

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Colorado Supreme Court: Crim. P. 35(c) Post-Conviction Relief Inapplicable but Defendant May Seek to Withdraw Plea Under Crim. P. 32(d) for a “Fair and Just Reason”

December 23, 2012 by Leave a Comment

The Colorado Supreme Court issued its opinion in Kazadi v. People on Thursday, November 20, 2012.

Criminal Law—Post-Conviction Review—Crim.P. 35(c) and 32(d)—Deferred Judgment—CRS § 18-1.3-102—Withdrawal of Guilty Plea—Ineffective Assistance of Counsel.

In this appeal, petitioner Yanick Kazadi, a legal permanent resident born in the Congo, sought Crim.P. 35(c) post-conviction review of his felony plea leading to a deferred judgment. Kazadi claimed ineffective assistance of counsel for counsel’s failure to notify him of possible deportation consequences for pleading guilty to obtain a deferred judgment and sentence.

The Supreme Court affirmed the ruling of the court of appeals, holding that Kazadi may not seek review of his deferred judgment and sentence under Crim.P. 35(c) while in the deferred judgment period because, in a deferred judgment situation, there has not been a judgment of conviction that makes Crim.P. 35(c) review available. Kazadi may, alternatively, seek to withdraw his guilty plea under Crim.P. 32(d). This rule allows a defendant to move to withdraw a guilty plea before sentence is imposed. In the unique situation of a deferred judgment, the defendant’s case is continued and there is no imposition of sentence and entry of judgment while the deferred judgment is in effect. Therefore, Kazadi may seek to withdraw his guilty plea pursuant to Crim.P. 32(d) for a “fair and just reason.”

Summary and full case available here.

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Tenth Circuit: Petitioner Has No Fifth Amendment Liberty or Property Interest in Obtaining Purely Discretionary Relief from Deportation

December 5, 2012 by Leave a Comment

The Tenth Circuit issued its opinion in Aguilar-Aguilar v. Napolitano on Monday, December 3, 2012.

In August 2010, the Department of Homeland Security (DHS) started “regular” removal proceedings against Aguilar-Aguilar (“Petitioner”), a citizen of Mexico. Petitioner conceded his removability as an alien present in the United States without being admitted, and also because California convicted him in 2009 of an aggravated felony. Petitioner told the immigration judge, however, that he was in the process of seeking discretionary relief the form of adjustment of status to lawful permanent resident. However, as an alien without lawful residency who had been convicted of an aggravated felony, Petitioner was amenable to “expedited” removal proceedings. A Final Administrative Removal Order (FARO) was issued directing his removal to Mexico without a hearing.

Petitioner asked the Tenth Circuit to review the FARO, because he claimed it was issued in violation of his Fifth Amendment right to procedural due process.  Petitioner sought to present evidence to convince DHS to terminate expedited removal proceedings and allow him to obtain a decision of his status on the merits of his application before a judge.

To claim a violation of his right to procedural due process, Petitioner must have a liberty or property interest in the outcome of the proceedings. The outcome Petitioner sought in this case was the chance to present evidence to obtain a decision on the merits of his application. Petitioner has a constitutionally protected interest in such outcome only if the regulations provide substantive criteria limiting DHS’s discretion to deny him that outcome. Because neither § 1228(b) nor 8 C.F.R. § 238.1 limited DHS’s discretion to deport Petitioner without a hearing,  he had no liberty or property interest in obtaining discretionary relief on the merits.

REVIEW DENIED.

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Tenth Circuit: Board of Immigration Appeals Interpretation of Continuous-Physical-Presence Statute Entitled to Deference

November 20, 2012 by Leave a Comment

The Tenth Circuit issued its opinion in Barrera-Quintero v. Holder on Thursday, November 15, 2012.

Hector Barrera-Quintero, a native and citizen of Mexico, entered the United States illegally the first time in 1990. In 2004, he was convicted in Utah for falsifying a government document, a fake Social Security card. He signed a Form I-826, and chose option 3, acknowledging he was in the United States illegally, waiving his right to a hearing, and requested return to Mexico. After leaving the U.S., he returned illegally a couple of months later.

In 2007, he was again arrested in Utah for using fraudulent documents. He applied for cancellation of removal under 8 U.S.C. § 1229b. The immigration judge found Barrera-Quintero ineligible for cancellation of removal because he did not have 10 continuous years of physical presence in the U.S. and his convictions in California for spousal abuse and in Utah involved crimes of moral turpitude. He sought review of a Board of Immigration Appeals (BIA) decision finding him ineligible for cancellation of removal.

The continuous physical presence statute, § 1229b(d)(2), sets forth a failure to maintain a continuous physical presence as a period exceeding 90 days. The BIA, however, has held that this is not the exclusive means of a break in continuous presence. It considers a “departure that is compelled under threat of the institution of deportation or removal proceedings is a break in physical presence for purposes of section [1229b(b)(1)(A)].” The Tenth Circuit joined six other circuits in holding that interpretation reasonable and entitled to Chevron deference.

Barrera-Quintero argued that immigration officials did not adequately inform him of his rights in 2004 so he could not have voluntarily broken his continuous presence. The Tenth Circuit found it lacked jurisdiction to consider this argument as it concerned a discretionary agency decision.

The petition for review was dismissed in part for lack of jurisdiction and denied in part.

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