May 21, 2013

You are here: Home / Archives for immigration law

Tenth Circuit: Appeal of Conditional Guilty Plea to Possession of Cocaine and Possession with Intent to Distribute Dismissed: Deportation Mandatory

October 23, 2012 by Leave a Comment

The Tenth Circuit issued its opinion in United States v. Salas-Garcia on Monday, October 22, 2012.

Jose Salas-Garcia entered a conditional plea of guilty to one count of conspiring to possess with the intent to distribute more than 500 grams of cocaine and one count of possessing more than 500 grams of cocaine with the intent to distribute. Prior to his plea, he moved to suppress the drugs found in the vehicle he was driving, as well as statements he made to police, arguing that he was illegally arrested and the evidence subsequently obtained was the fruit of a constitutional violation. The district court denied his motion to suppress. Thereafter, Salas-Garcia sought to withdraw his guilty plea, stating he did not fully understand the immigration consequences of his plea. (Salas-Garcia was a legal permanent resident of the United States, and deportation to his home country was mandatory because he was pleading guilty to two aggravated felonies.) The district court denied his motion to withdraw his guilty plea and sentenced Salas-Garcia to concurrent terms of sixty months’ imprisonment and a four-year term of supervised release. Mr. Salas-Garcia appealed.

On appeal, Mr. Salas-Garcia first argued that the arresting officers exceeded the scope of the Terry stop and lacked probable cause to handcuff and detain him prior to questioning. Accordingly, Salas-Garcia argued, his responses to his subsequent questioning and the drugs seized from the truck were fruits of the poisonous tree and should be suppressed. The Court found that placing Salas-Garcia in handcuffs was reasonable under the circumstances, and his detention was not an arrest that had to be supported by probable cause. The handcuffing of Salas-Garcia did not exceed the bounds of an investigatory detention and thus he was not illegally arrested. Consequently, there was no basis for suppressing his statements to law enforcement or the drugs seized from the truck as fruits of the poisonous tree.

Second, Mr. Salas-Garcia argued that, although he pled guilty before a magistrate judge, he should be allowed to withdraw his guilty plea because his plea had not been accepted. However, the Tenth Circuit found that the magistrate judge was clear in accepting Salas-Garcia’s guilty plea; there was no indication that his guilty plea was accepted on a “conditional” or “provisional” basis.

Finally, Mr. Salas-Garcia argued that, even if the district court had accepted his guilty plea, there is a fair and just reason to withdraw his plea because the consequence of his plea would mean deportation. However, the record revealed that the immigration consequences of his plea could not have been clearer. Accordingly, the Court concluded Salas-Garcia knowingly and voluntarily entered into the plea agreement.

The district court’s denial of Salas-Garcia’s motion to suppress is AFFIRMED and Salas-Garcia’s appeal from the district court’s denial of his motion to withdraw his guilty plea is DISMISSED.

Filed Under: Case Law Tagged With: , , , , , , ,

Tenth Circuit: Petition for Review of BIA’s Denial of Restriction on Removal Denied

October 4, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals issued its opinion in Neri-Garcia v. Holder on Wednesday, October 3, 2012.

Efren Neri-Garcia was a citizen of Mexico who was in the United States illegally. He sought restriction on removal under the Immigration and Nationality Act and for relief under the United Nations Convention Against Torture (CAT). The immigration Judge (IJ) found Neri-Garcia established past persecution based on his homosexuality, but that the Department of Homeland Security had rebutted the presumption of future persecution because of a fundamental change of circumstances in Mexico, including steps the Mexican government had taken to prevent violence against gay men. The IJ also found Neri-Garcia was ineligible for restriction on removal under the CAT. Neri-Garcia appealed to the Board of Immigration Appeals (BIA), which adopted the IJ’s reasoning and dismissed his appeal.

The Tenth Circuit found the BIA’s reliance on, and analysis of, the 2009 and 2010 United States Department of State Human Rights Reports (Country Reports) for Mexico was reasonable and its decision was supported by substantial evidence. The court also found no abuse of discretion in the BIA’s denial of Neri-Garcia’s motion to remand as the evidence he offered was insufficient to justify a remand. News articles of the killing of two gay activists weighed against the population of Mexico and lack of government actors was not probative. The Tenth Circuit denied Neri-Garcia’s petition for review.

Filed Under: Case Law Tagged With: ,

Tenth Circuit: Board of Immigration Appeals Must Reevaluate § 212 Waiver Denial Due to Judulang

September 5, 2012 by Leave a Comment

The Tenth Circuit published its opinion in Sosa-Valenzuela v. Holder on August 31, 2012.

Baltazar Sosa-Valenzuela, a lawful permanent resident, shot a gang member and was convicted. The INS (now the DHS) sought to deport him. Sosa-Valenzuela sought a § 212 waiver (since repealed) and later, adjustment of status due to his marriage to an American citizen. An immigration judge (IJ) granted both requests and denied the DHS’s motion to reconsider. The Board of Immigration Appeals (BIA) vacated the IJ’s § 212 waiver and adjustment of status.

The BIA has broad appellate jurisdiction under 8 C.F.R.  § 1003.1 and reviews IJ decisions de novo. It also is required to apply new law to its decisions. The BIA’s broad powers of collateral review do not violate a petitioner’s due process rights because “the only protections afforded are the minimal procedural due process rights for an opportunity to be heard at a meaningful time and in a meaningful manner.” Sosa-Valenzuela was afforded that opportunity.

The Tenth Circuit remanded to the BIA to reevaluate the § 212 waiver decision because the case it relied on in finding Sosa-Valenzuela was ineligible for the waiver had later been found unconstitutional by the Supreme Court in Judulang v. Holder, 132 S. Ct. 476 (2011). The court affirmed the BIA’s denial of adjustment of status due to marriage because its review of the BIA’s exercise of discretion is limited under 8 U.S.C. § 1252 to constitutional claims or questions of law, neither of which was present here.

Filed Under: Case Law Tagged With: , , , ,

Tenth Circuit: Buckhannon Interpretation of “Prevailing Party” Applies to EAJA Claims

August 23, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Iqbal v. Holder, Jr. on Tuesday, August 21, 2012.

Shahid Iqbal, a citizen of Pakistan, applied for naturalization with the U.S. Citizenship and Immigration Services (USCIS). Because of an ongoing background check, USCIS did not act on his application within 120 days after he took the naturalization examination. Iqbal petitioned the district court pursuant to 8 U.S.C. § 1447(b) and, among other relief, asked the court “to review his application, determine that he met the citizenship requirements, grant him naturalization, and issue a Certificate of Citizenship.” USCIS denied Iqbal’s petition because he had not met the physical presence requirements and moved to dismiss his petition as moot, or for the court to decline jurisdiction. The district court held the filing of the § 1447(b) vested exclusive jurisdiction in it and then remanded the matter to USCIS. In its remand order, the court stated, “The USCIS may determine how to best proceed on remand. Nothing in this order is intended to require the USCIS to change its earlier determination of the merits of the application.”

Iqbal filed a motion for attorney fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, which mandates an award to a prevailing party other than the United States. The Tenth Circuit affirmed the denial of an EAJA award because Iqbal was not a prevailing party under 28 U.S.C. § 2412(d)(1)(A). The district court had not ordered the USCIS to make any determination by a date certain or to grant Iqbal naturalization. In making this determination, the Tenth Circuit specifically adopted the interpretation of “prevailing party” in Buckhannon Board & Care Home, Inc. v. West Virginia Dep’t of Health & Human Resources, 532 U.S. 598 (2001) and held that Buckhannon’s interpretation applies to EAJA claims. To be considered a prevailing party, there must be some judicial imprimatur on a legal change between the parties; a voluntary change is not enough.

Filed Under: Case Law Tagged With: , , ,

New I-9 Form on the Horizon

August 17, 2012 by 1 Comment

USCIS has proposed revisions to Form I-9, Employment Eligibility Verification, which include:

  • Expanded Form I-9 instructions and a revised layout.
  • New, optional data fields to collect the employee’s e-mail address and telephone number.
  • New data fields to collect the foreign passport number and country of issuance. Only foreign nationals authorized to work in the U.S. who have also recorded their I-94 admission number on Form I-9 will need to provide the foreign passport number and country of issuance.

While these proposals must be issued as part of a final rule before they become effective, employers should be on the lookout for the new form in the coming months. The public comment period ended in late May.

This post originally appeared on the EAH Immigration Blog on August 17, 2012. Elkind Alterman Harston offer a full line of legal services to businesses and individuals in the areas of employment and family-based immigration, deportation and removal defense, and asylum and refugee law.The new CBA-CLE book, Immigration Law for the Colorado Practitioner, is now available for purchase. In addition to federal laws and regulations, lawyers must understand specific Colorado immigration laws and policies being implemented, and how they can affect their clients. This comprehensive reference covers an incredible range of practice issues, providing the necessary orientation, analysis, and authorities. It’s a new “must have” for the Colorado general practitioner, lawyers who focus their practice in areas that overlap with immigration law, as well as for lawyers who focus exclusively on immigration law. Click here for more information and to order.
Filed Under: Resources Tagged With: , ,

Tenth Circuit: Conviction for Criminally Transporting Alien Affirmed; Need Only Show Alien Was Illegally Present In US, Not Illegal Entry

July 25, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in United States v. Franco-Lopez on Monday, July 23, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner appeals his conviction on one count of transporting an illegal alien. The statute under which he was convicted “criminalizes the transportation of an alien who ‘has come to, entered, or remains in’ the country illegally.” Petitioner argues that the district court erred in denying his motion for acquittal because the government did not present evidence that the transported alien illegally ‘entered’ the United States. In support, Petitioner relies on the definition of ‘entry’ used in the context of civil immigration law or in illegal reentry cases.” The Court, however, concluded that “the government need only prove that the transported alien was present in the United States in violation of the law.”

Filed Under: Case Law Tagged With: , , ,

Department of Homeland Security Announces Deferred Action for Eligible DREAMers

June 22, 2012 by Leave a Comment

Editor’s Note: The new CBA-CLE book, Immigration Law for the Colorado Practitioner, is available for purchase. In addition to federal laws and regulations, lawyers must understand specific Colorado immigration laws and policies being implemented, and how they can affect their clients. This comprehensive reference covers an incredible range of practice issues, providing the necessary orientation, analysis, and authorities. It’s a new “must have” for the Colorado general practitioner, lawyers who focus their practice in areas that overlap with immigration law, as well as for lawyers who focus exclusively on immigration law. Click here for more information and to order.

By Kim Tremblay & Amber L. Blasingame

On June 15, 2012, Janet Napolitano, Secretary of the Department of Homeland Security (DHS), announced that the government will offer indefinite relief from deportation for young immigrants brought to the United States as minors.  Young immigrants, between the ages of 15 and 30 years old as of June 15, 2012, not in deportation proceedings will also be eligible to apply for deferred action.

Although this is not the DREAM legislation (Development, Relief, and Education for Alien Minors Act) that many have been pushing Congress to enact for years, it is a step in the right direction.  It will allow many young immigrants to come out of the shadows, support themselves, and use the skills they acquired in American schools in the workplace.  The DHS initiative will also provide more opportunities for young immigrants to apply and attend college or university, since many US post-secondary institutes require evidence of legal status for admission.  The department estimates that the new policy may benefit as many as 800,000 potential DREAMers.  However, many questions remain unanswered as both USCIS and ICE have 60 days to implement policies and procedures for filing deferred action requests.

Based on the results of DHS’s prior prosecutorial discretion initiative, it also remains to be seen whether this new policy will be any more successful for young immigrants in deportation proceedings.  The August 2011 DHS memo initiated a policy based on priorities to reduce the immigration court’s overbooked docket.  Under the prosecutorial discretion policy, DHS reviewed all 350,000 pending deportation cases nationwide and offered to administratively close about two percent of cases that were not priorities for DHS to pursue.  This was a much lower number than anticipated.  Thus, for young immigrants already in removal proceedings, it remains unclear whether this new policy will bring about much change.

More positive outcomes are expected for young immigrants who are not in deportation proceedings.  Applications for individuals who are not in deportation proceedings cannot be filed until USCIS implements a filing procedure.  In the meantime, however, potential DREAMers should consult attorneys to determine their eligibility for the program and start gathering documents to show that they meet the requirements. They should beware of individuals or agencies who claim they can help but who are not licensed to represent and assist individuals in this legal process.

Potential DREAMers physically present in the United States should also get documentation to show they are here from today and until deferred action is granted.  They should also hold on to anything to show they were present on June 15, 2012.

Individuals must meet the following requirements to be considered for deferred action:

  • Entered the United States before age 16 and not be above 30 years of age;
  • Have continuously resided in the U.S. for 5 years as of June 15, 2012;
  • Were physically present in the U.S. on June 15, 2012;
  • Are currently in school, have graduated from high school or earned a GED, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  • Have not been convicted of a serious crime or multiple minor crimes that pose a threat to the national security or public safety.

Those who meet the criteria will be qualified to obtain deferred action for two years, subject to renewal for an indefinite period of time, and will be eligible to apply for work authorization if they can show financial need.

Amber Blasingame is an associate attorney at the Joseph Law Firm and has focused her practice on immigration law since 1995. Kim Tremblay is also an associate attorney at the Joseph Law Firm who specializes in immigration law. They contribute to the Immigration Issues blog, where this post originally appeared on June 19, 2012.

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.
Filed Under: Updates Tagged With: , ,

Tenth Circuit: Issue Preclusion Based on Immigration Judge’s First Decision Is Unavailing Because Collateral Estoppel Does Not Apply

May 9, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Shepherd v. Holder, Jr. on Tuesday, May 8, 2012.

The Tenth Circuit dismissed the petition for review. “This case is about the government’s repeated efforts to remove Petitioner from the United States on the ground she is a criminal alien. In the initial removal proceeding, the government did not effectively contest [Petitioner]’s claim to automatic citizenship under the Child Citizenship Act of 2000 (CCA), and the Immigration Judge dismissed for lack of jurisdiction. The very next day, the government initiated a new removal proceeding, explaining to the same [judge] that it had made a mistake and now realized that [Petitioner] was too old to qualify under the CCA for citizenship. The [judge] eventually decided that his initial ruling precluded the government from relitigating [Petitioner]’s citizenship or alienage status, and he terminated the proceeding. The government successfully appealed to the Board of Immigration Appeals (BIA), which held that collateral estoppel did not apply and remanded to the [Immigration Judge], who ordered removal.”

On appeal, the Tenth Circuit had to decide whether it had jurisdiction under 8 U.S.C. § 1252(a)(2)(C), which limits judicial review of orders to remove criminal aliens and to “ascertain as a jurisdictional fact whether [Petitioner] is a citizen or an alien, using the procedures that Congress prescribed in 8 U.S.C. § 1252(b)(5) for that purpose.” The Court found that her alien status precludes the Court’s jurisdiction. Her issue preclusion argument based on the Immigration Judge’s first decision is unavailing because administrative collateral estoppel does not apply to the § 1252(b)(5) analysis. Accordingly, her petition for review.

Filed Under: Case Law Tagged With: , ,

Tenth Circuit: Courts Defer to Congress to Distinguish Between Citizens and Noncitizens and to Ensure Safety and Order

May 8, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in United States v. Huitron-Guizar on Monday, May 7, 2012.

The Tenth Circuit affirmed the district court’s sentence. Petitioner entered a conditional guilty plea to being an illegal alien in possession of firearms transported or shipped in interstate commerce and was sentenced to 18 months’ imprisonment. Petitioner is to be delivered upon release to an immigration official for deportation. On appeal, he argues that the statute under which he was convicted is unconstitutional and that the district court committed various sentencing errors in applying the Sentencing Guidelines.

The Court disagreed. “[C]ourts must defer to Congress as it lawfully exercises its constitutional power to distinguish between citizens and non-citizens, or between lawful and unlawful aliens, and to ensure safety and order. On this record, § 922(g)(5) withstands [Petitioner]’s Second Amendment and Equal Protection challenges.” Additionally, the district court did not abuse its discretion when it did not apply variances to Petitioner’s sentence.

Filed Under: Case Law Tagged With: , , , ,

HB 12-1316: Modifying Bond Recovery Procedures for Defendants Who May Be in the Country Illegally

April 13, 2012 by Leave a Comment

On February 22, 2012, Rep. Amy Stephens introduced HB 12-1316 – Concerning Bond Conditions when a United States Immigrations and Customs Enforcement Detainer is Lodged Against a Defendant. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, if there is probable cause to believe that a defendant is in the country illegally and he or she is charged with a felony or class 1 or class 2 misdemeanor, the investigating law enforcement agency shall notify the defendant’s bail bond agent. The bill requires notification to a person’s bail bond agent if there is a United States immigration and customs enforcement detainer lodged against the defendant; rather than based on probable cause to believe that a defendant is in the country illegally and a person is charged with a felony or a class 1 or class 2 misdemeanor.

Under current law, a bail bond agent is exempt from having his or her bond forfeited if the defendant is removed from the country, and a bail bond agent is not required to sign a waiver of understanding concerning such forfeiture. The bill requires a bail bond agent to execute a waiver that states he or she understands that if the defendant is removed from the country the bond is forfeited. The bill also requires the bond of the bail bond agent to be forfeited if the defendant is removed from the country.

If a law enforcement agency holding a defendant for a felony or class 1 or class 2 misdemeanor determines that a United States immigration and customs enforcement detainer is lodged against the defendant, the law enforcement agency shall notify the district attorney and any pretrial services agency of the defendant’s presumed immigration status. If the defendant posts bond, the law enforcement agency shall notify the district attorney of the posting of the bond prior to notifying immigration and customs enforcement that the defendant is eligible for release to their custody.

Summaries of other featured bills can be found here.

Filed Under: Legislation Tagged With: , , , , ,

HB 12-1309: Creation of the Colorado Mandatory E-Verify Act; Establishing Compliance Requirements and Fines for Non-Complying Employers

April 12, 2012 by Leave a Comment

On February 20, 2012, Rep. Spencer Swalm and Sen. Keith King introduced HB 12-1309 – Concerning the Requirement that All Employers in the State Verify the Work Eligibility Status of New Employees Through the Federal Electronic Verification Program. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, employers are required to examine, and retain records of examining, the legal work status of new employees. The bill enacts the “Colorado Mandatory E-verify Act”, which requires all employers in the state, by January 1, 2013, to instead participate in the federal electronic verification program (e-verify program) for purposes of verifying the work eligibility status of all new employees hired by an employer. Employers are subject to fines of up to $5,000 for a first offense and up to $25,000 for a second offense for failing to participate in the e-verify program. For subsequent offenses, an employer is subject to a fine of up to $25,000 and a six month suspension of the employer’s business licenses.

The department of labor and employment must notify employers via quarterly electronic publications and post a notice on its web site explaining the requirements of the act to employers. Additionally, the bill requires the Secretary of State, in consultation with the department, to include information about the requirements of the act on its web site. On March 22, the Economic and Business Development Committee amended the bill and referred it to the Committee on Agriculture, Livestock, and Natural Resources.

Summaries of other featured bills can be found here.

Filed Under: Legislation Tagged With: , , , ,

Tenth Circuit: Sixteen-Level Sentence Enhancement Appropriate Because Underlying Offenses Were Crimes of Violence

March 7, 2012 by Leave a Comment

On Wednesday, March 7, 2012, the Tenth Circuit Court of Appeals issued its opinion in United States v. Antonio-Agusta.

Jose Antonio-Agusta appealed the district court’s application of U.S.S.G. § 2L1.2(b)(1)(A)(ii)’s sixteen-level sentence enhancement in calculating his sentence. He argued the district court erred in relying on the indictment underlying his prior Arizona convictions of aggravated assault to conclude those convictions constituted felony crimes of violence, warranting the enhancement.

The 10th Circuit held the district court did not err, because the indictment was incorporated by reference in the judgment and is therefore reliable evidence of the elements of defendant’s prior aggravated assault convictions. Further, the indictment (as amended by the plea agreement) and judgment made clear Antonio-Agusta was convicted under parts of Arizona’s aggravated assault statutes that constitute crimes of violence.

Affirmed.

Filed Under: Case Law Tagged With: , , ,
«Older Posts
Newer Posts»
Protected

2013-05-21 05:16:04