July 25, 2014

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.

Tenth Circuit: Immigration Petitioner Properly Denied Second Cancellation of Removal Relief

The Tenth Circuit Court of Appeals published its opinion in Velasco v. Holder on Tuesday, October 29, 2013.

Arturo Velasco petitioned for review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal from an order of the immigration judge (IJ) that denied his application for cancellation of removal under § 240A of the Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1229b.

Velasco, a native and citizen of Mexico, entered the United States illegally in 1989. The government first commenced deportation proceedings against him in March 1997. He applied for suspension-of-deportation relief under former § 244(a) of the INA, was granted that relief, and was issued a lawful-permanent-resident card in September 1998.

In 2007 Velasco pleaded guilty to two counts of possession of a controlled substance, causing the Department of Homeland Security to initiate removal proceedings against him in 2009. He then applied for discretionary cancellation-of-removal relief for permanent residents under 8 U.S.C. § 1229b(a). The IJ denied relief; on appeal the BIA also denied relief, although on different grounds.

The Tenth Circuit denied Velasco’s petition for review. Because Velasco had been granted suspension of deportation during prior deportation proceedings, he was ineligible for cancellation of removal according to the plain language of § 1229b(c)(6).

Tenth Circuit: Board of Immigration Appeals’ Order was Final Order of Removal Because Its Remand Order Had No Potential for Relief From Removal

The Tenth Circuit Court of Appeals published its opinion in Batubara v. Holder on Monday, October 28, 2013.

Petitioners, wife and husband, Imelda Rosalyna Purba and Aram Batubara, who are citizens of Indonesia, sought review of the Board of Immigration Appeals’ (BIA) order dismissing their appeal from the denial of their applications for withholding of removal and relief under the Convention Against Torture (CAT). Petitioners legally entered the United States but remained after their authorized stay expired. They conceded removability and applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) in 2004.

On May 4, 2011, after various proceedings, the BIA upheld the Immigration Judge’s (IJ) denial of asylum, withholding of removal, and relief under the CAT and dismissed petitioner’s appeal. The BIA remanded for the IJ to provide all advisals that were required when he granted voluntary departure. On remand, petitioners withdrew their requests for voluntary departure. The IJ issued an order on March 28, 2012, denying voluntary departure and ordering petitioners removed to Indonesia. Only then, on April 23, 2012, did petitioners file this petition seeking review of the BIA’s May 4, 2011, ruling.

A petition for review must “be filed not later than 30 days after the date of the final order of removal.” The Tenth Circuit disagreed with both parties that the BIA’s May 11 order was not a final order and agreed with its “sister circuits, which have uniformly held that a BIA order denying relief from removal but remanding for proceedings having no potential for future relief from removal, such as consideration of voluntary departure, is a final order of removal.”

Because the petition for review was untimely, the court dismissed it for lack of jurisdiction.

Tenth Circuit: Motion to Amend Published Decision Granted

The Tenth Circuit Court of Appeals published its amended opinion in Ibarra v. Holder on Friday, July 12, 2013.

This matter was before the court on Respondent’s “Motion to Amend Published Decision” filed July 1, 2013. The motion was granted. The amended opinion was filed nunc pro tunc to the original filing date.

Floodgates: Riding the Wave of New Immigration Practitioners

KatharineSpeerBy Katharine Speer

Comprehensive immigration reform looks more promising now than at any time in the last 15 years. Approximately 11 million unauthorized immigrants—your neighbors, co-workers, and classmates—could benefit from the proposed changes. More immediately, the Supreme Court just eliminated DOMA’s barrier to same-sex spousal visa petitions, and about a third of the U.S. population now lives in a marriage-equality state.

What does this mean for young lawyers? A lot of prospective clients in a frequently overlooked area of the law and the chance to put your law degree to work making dreams come true!

Corny, perhaps, but true.

At the same time, immigration law is notoriously complex; equal parts rewarding and frustrating.

Remember your administrative law class? Your favorite subject? Yeah, me neither.

Where does a young lawyer begin when faced with such a challenge? First, why not talk to some immigration lawyers to see if the practice area interests you? We don’t bite, and you can find a bunch of us at AILAlawyer.com. If this piques your legal interest, consider taking a pro bono case through the Rocky Mountain Immigrant Advocacy Network. You will be matched with a client in desperate need of your services and an experienced mentor.

Okay, so you’ve finished your pro bono case, and now you’re hooked. How do you become a competent immigration lawyer? One way is to land a job as an associate at an immigration firm, but these scarce positions can be highly competitive and may require years of experience. Another way is to start your own firm or an immigration practice within an existing firm. If you choose one of these options, the following could be your life raft.

  1. Reach out ~ Join the American Immigration Lawyers Association (AILA) and the Immigration Section of the Colorado Bar Association. Meet all the immigration lawyers you can. They will be your best resource.
  2. Don’t reinvent the wheel ~ Ask about the best treatises and research tools for your immigration niche. Check out free resources from the National Immigration Project, American Immigration Counsel, AILA (which you joined, right?), and other non-profits.
  3. Address language and cultural differences ~ No one can be proficient in every language and culture. Learn to work with translators and interpreters. Understand that your clients may see the judicial system differently and take time to talk through their fears, expectations, rights, and responsibilities.
  4. Expect the unexpected ~ Each immigration case is unique. The stakes for your client may range from career advancement, to family unity, to protection from torture. Take time to assess (and re-asses) every case to be sure you are safeguarding your client’s immediate and long-term interests.

Don’t stop here. Your curiosity, sense of adventure, and willingness to admit what you don’t know will serve you well as an immigration practitioner. When the wave of new immigration lawyers hits, your preparation will help you ride the tide to an intellectually and personally rewarding career.

Katharine Speer is a solo immigration practitioner in Denver. She currently serves on the Executive Committee of the Colorado Chapter of AILA, chairs the Spanish Speaking Lawyers Committee of the Colorado Bar Association, and participates in Denver Legal NightGreeley Legal Night, and Ya Es Hora De Ciudadanía. She hopes to see you there! In the meantime, she can be reached on her homepage, by email, on Twitter, orLinkedIn. She also writes for the DBA Young Lawyers Division blog, where this post originally appeared.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Tenth Circuit: Board of Immigration Appeals’ Interpretation of Crime of Child Neglect Too Broad

The Tenth Circuit Court of Appeals published its opinion in Ibarra v. Holder on Monday, July 1, 2013.

Elia Ibarra Rivas petitioned for review of a Board of Immigration Appeals decision that found her Colorado conviction for “child abuse – negligence – no injury” to categorically constitute a “crime of child abuse, child neglect, or child abandonment” under 8 U.S.C. § 1227(a)(2)(E)(i) of the Immigration and Nationality Act (INA). This finding resulted in her ineligibility for discretionary cancellation of removal. Her conviction apparently resulted from leaving her children with her mother while she was at work and the mother then leaving them alone. The oldest child was age 10 and no child was injured.

The BIA has interpreted “crime of child abuse, child neglect, or child abandonment” broadly to include criminally negligent omissions which endanger children by creating a reasonable probability of harm but which do not lead to injury. The Tenth Circuit agreed with Ms. Ibarra that this definition is an impermissible interpretation of the federal statute and that her conviction was not a “crime of child abuse, neglect, or abandonment” under any permissible interpretation of § 1227(a)(2)(E)(i).

The court reached this decision by looking at state laws in effect in 1996, the year Congress amended the INA to include crimes of child abuse, child neglect, or child abandonment as a basis for deportation. They found a majority of states did not criminalize such conduct when it was committed with only criminal negligence and no injury resulted. Therefore, her crime did not fit the generic federal definition and should not have prohibited her application for cancellation of removal.

The court reversed the BIA’s decision and remanded.

Tenth Circuit: Immigration Hardship Determination Is Unreviewable Discretionary Decision

The Tenth Circuit Court of Appeals published its opinion in Munis v. Holder on Tuesday, July 2, 2013.

Petitioner Peter Dausen Munis appealed from an order of the Board of Immigration Appeals (BIA) that dismissed his administrative appeal from an order of the immigration judge (IJ) denying his requests for discretionary relief from removal. The IJ found him inadmissible because of his criminal history. He sought a waiver of inadmissibility under 8 U.S.C. § 1182(h)(1)(B), based on alleged extreme hardship to his wife if he was removed.

The court joined two other circuits in holding “based on existing Tenth Circuit law . . . the hardship determination required for a waiver of inadmissibility under § 1182(h)(1)(B) is an unreviewable discretionary decision.” The court dismissed the petition for review for lack of jurisdiction.

Tenth Circuit: Board of Immigration Appeals Dismissal of Appeal Under 8 C.F.R. § 1003.4 Not Due Process Violation

The Tenth Circuit Court of Appeals published its opinion in Montano-Vega v. Holder on Monday, July 1, 2013.

Arturo Montano-Vega was in this country unlawfully. When the government charged him with as much, he asked for permission to leave the country voluntarily in order to avoid a congressionally mandated ten-year bar on readmission for aliens who have been “ordered removed.”

The Immigration Judge assigned to Montano-Vega’s case exercised his discretion and refused his request to leave voluntarily because of Montano-Vega’s criminal record. Montano-Vega filed an appeal with the Board of Immigration Appeals contesting the IJ’s decision. To continue to pursue the appeal, he had to remain in the country. Once Montano-Vega left the country to avoid a separate ten-year bar, the BIA deemed his appeal abandoned as a matter of law under 8 C.F.R. § 1003.4.

Montano-Vega appealed the BIA’s decision, challenging the legality of its application of § 1003.4 to his case. He asserted that the BIA’s application of § 1003.4 to his case infringed his due process rights. The court rejected this argument. “While entitled to ‘minimal procedural due process’ protections, it is settled law that aliens enjoy no constitutionally protected liberty or property interest in obtaining discretionary relief from removal under 8 U.S.C. § 1229c(b)(1).”

The court also rejected his argument that he should not be considered to have abandoned his appeal under § 1003.4 because he had no choice but to leave the country. The plain language of § 1003.4 states that any departure ends an appeal and many circuits have held that even inadvertent, unwanted, or accidental departures can lawfully trigger the regulation. The court denied the § 1003.4 appeal and otherwise dismissed his petition for review for lack of jurisdiction.

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

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 13-1136Concerning 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 13-033Concerning 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 13-070Concerning 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.

Tenth Circuit: Denial of Application for Asylum Vacated

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.