October 1, 2014

Colorado Court of Appeals: Withdrawn Plea Constitutes “Conviction” of Felony Under Federal Immigration Law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 Defendant thereafter sought permanent residency in the United States, which was denied because a withdrawn plea in a Colorado state court constitutes “conviction” of a felony under federal immigration law.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.

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.