January 16, 2019

Colorado Court of Appeals: Defendant Facing Probation Revocation has Statutory Right to Effective Counsel

The Colorado Court of Appeals issued its opinion in People v. Timoshchuk on Thursday, November 1, 2018.

Criminal ProcedurePostconviction RemediesImmigrationProbationRight to Counsel.

Timoshchuk was a lawful permanent resident of the United States. He was charged with forgery. As part of a plea agreement, Timoshchuk pleaded guilty to forgery, pleaded guilty to DUI in a separate case, and admitted violating his probation in a prior case. Timoshchuk was sentenced to probation in all three cases. Timoshchuk’s probation officer filed a complaint in district court alleging that Timoshchuk had violated the two conditions of his probation. Timoshchuk then entered into an agreement resolving all four cases: he admitted to violating probation in his prior cases and pleaded guilty to possession of a controlled substance in his newest case. The district court revoked Timoshchuk’s probation and resentenced him on the forgery charge to three years in the custody of the Department of Corrections concurrent with his other sentences.

The Department of Homeland Security initiated removal proceedings against Timoshchuk due to his convictions involving a controlled substance and an aggravated felony. Because Timoshchuk conceded the charges against him, the immigration court found Timoshchuk removable as charged and later denied his request for asylum. Timoshchuk then filed a Crim. P. 35(c) postconviction motion alleging he was denied effective assistance of counsel. The district court denied the motion without a hearing.

On appeal, Timoshchuk argued that the court erred in denying his Crim. P. 35(c) motion without a hearing. He contended that his probation revocation counsel failed to sufficiently investigate and advise him of the specific immigration consequences of his plea. The court of appeals held that a probationer facing revocation proceedings has a statutory right to counsel, and thus a right to effective assistance of counsel. Here, it was clear that Timoshchuk could be subject to removal for his aggravated felony conviction, and his probation revocation counsel should have advised him with certainty that his admission and resulting sentence could subject him to removal. Further, Timoshchuk became ineligible for asylum when he was sentenced to three years in prison for the forgery conviction, and his counsel should have advised him with certainty of the immigration consequences of his admission. If Timoshchuk did not receive an advisement from his counsel of the specific immigration consequences of his plea, he may be entitled to relief. Therefore, Timoshchuk alleged sufficient facts to warrant a hearing on the adequacy of the advice he received.

The order was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: “Crime Involving Moral Turpitude” is Conduct Which Is Inherently Base, Vile, or Depraved Under Categorical Approach

The Tenth Circuit Court of Appeals issued its opinion in Afamasaga v. Sessions on March 19, 2018.

Paulo Afamasaga, a native and citizen of Samoa, was admitted to the United States on a nonimmigrant, B-2 tourist visa in February 1998, with authorization to remain until that August. He stayed much longer. In 2011, Mr. Afamasaga pleaded guilty in federal court to violating 18 U.S.C. § 1542, which prohibits “willfully and knowingly making any false statement in an application for a passport with intent to induce or secure the issuance of a passport under the authority of the United States.” The indictment charged that Mr. Afamasaga falsely stated in his passport application that he was born in American Samoa; had that been true, he would have been a United States citizen. Shortly thereafter, the Department of Homeland Security (DHS) issued a Notice to Appear, charging him with removability as an alien who had remained in the United States longer than permitted. The immigration judge (IJ) sustained the change of removability.

Mr. Afamasaga applied for cancellation for removal and adjustment of status, or, in the alternative, for voluntary departure. The IJ dropped his cancellation application after deeming him inadmissible because he had been convicted of a crime involving moral turpitude. The IJ did, however, grant voluntary departure to Samoa. In a decision issued by a single board member the Board of Immigration Appeals (BIA) agreed that Mr. Afamasaga’s conviction for a violation of § 1542 constitutes a crime involving moral turpitude and affirmed the IJ’s decision.

A noncitizen applying for cancellation of removal must show, among other things, that he has not been convicted of a crime involving moral turpitude. In determining whether an alien’s offense was a crime involving moral turpitude, it is not enough that his actual conduct would qualify. Instead, courts apply the “categorical approach” and “compare the statutory definition of that offense with the generic definition of crimes involving moral turpitude and consider whether the minimum conduct that would satisfy the former would necessarily also satisfy the latter.”

Although the Immigration and Nationality Act (INA) does not define “crime involving moral turpitude,” courts have guidance for defining it because “the contours of the term have been shaped through interpretation and application by the Attorney General, the BIA, and federal courts.” The Tenth Circuit Court of Appeals has previously said that the term “refers to conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality.” Previous Attorneys General have described offenses that qualify as crimes involving moral turpitude as those entailing both “reprehensible conduct and some form of scienter.” Precedents established rules for assessing specific types of conducts. Specifically, “crimes in which fraud is an ingredient are regarded as involving moral turpitude.” The BIA has identified three categories of deceit-related offenses that qualify as crimes involving moral turpitude: (1) offenses containing an explicit fraudulent intent element; (2) offenses containing an inherent fraudulent intent element; and (3) offenses containing a specific intent element. In particular, the BIA has found an offense implicitly fraudulent – and thus a crime involving moral turpitude – where it involved impairing or obstructing an important function of the government by defeating its efficiency or destroying the value of its lawful operations by deceit, graft, trickery, or dishonest means.

The BIA held in 1956 that fraud is an “essential element” of § 1542 because “the applicant must knowingly make a false statement with the specific intent that the false statement should be acted upon the Government.” More recently, a precedential opinion of the BIA held that a conviction for making false statements to obtain a passport in another person’s name is a crime involving moral turpitude because “convictions for making false statements have been found to involve moral turpitude.” Additionally, the Second Circuit has also concluded that an offense under § 1542 categorically constitutes a crime involving moral turpitude.

Agreeing with the above interpretations of the meaning of crime involving moral turpitude, the Tenth Circuit Court of Appeals concluded that a violation of § 1542 is categorically a crime involving moral turpitude.

Mr. Afamasaga made the conclusory statement that § 1542 is not categorically a crime involving moral turpitude because “there is a realistic possibility, not a theoretical possibility, that section 1542 applies to conduct that falls outside the well-established definitions of crime involving moral turpitude.” But he did not proffer a single example of such conduct, nor could the Tenth Circuit Court of Appeals come up with one.

The Tenth Circuit Court of Appeals recognized that one of its recent opinions, which thoroughly explored when offenses involving statements constitute crimes involving moral turpitude, held that a violation of a city ordinance prohibiting the knowing and willful providing of false information to a public official conducting an investigation is not a crime involving moral turpitude. But, the critical feature of the ordinance was that it did not require an intent to affect the official’s decision. Section 1542, in contrast, requires the “intent to induce or secure the issuance of a passport.”

Mr. Afamasaga did not satisfy his burden “to prove the absence of any impediment to discretionary relief.” The Tenth Circuit Court of Appeals DENIED his petition for review and upheld the BIA’s determination that he is not eligible for cancellation of removal.

Tenth Circuit: Possession of Stolen Property is Crime Involving Moral Turpitude

The Tenth Circuit Court of Appeals issued its opinion in Obregon de Leon v. Lynch on Tuesday, December 22, 2015.

Cristian Eduardo Obregon de Leon was a native citizen of Guatemala who entered the United States without inspection in September 1997. In 2007, he adjusted his status to that of a lawful permanent resident (LPR). In 2011, he was charged with and pleaded guilty to four offenses in Oklahoma state court: (1) one count of operation of a chop shop, (2) four counts of possession of vehicles with altered identification numbers, (3) four counts of possession of a stolen vehicle, and (4) two counts of receipt of stolen property.

In January 2013, the Department of Homeland Security filed a Notice to Appear, charging that Mr. Obregon was removable for committing a crime involving moral turpitude (CIMT). Mr. Obregon admitted the factual allegations at hearing but denied removability, arguing his crimes did not qualify as CIMTs. The Immigration Judge ultimately found that all four crimes counted as CIMTs and concluded he was not eligible for waiver relief. Mr. Obregon appealed, and a single BIA judge dismissed his appeal, concluding that the stolen property offenses counted as CIMTs because they required a mens rea of knowing the property was stolen.

Mr. Obregon appealed to the Tenth Circuit, arguing none of his convictions counted as CIMTs and that he should be eligible for waiver because he adjusted to LPR status after entering the United States. The Tenth Circuit first evaluated the term “crime involving moral turpitude,” and determined it was quintessentially ambiguous. However, following several other circuits and BIA precedent, the Tenth Circuit found that possession of stolen property satisfies the scienter element to create a CIMT. Mr. Obregon argued there must be intent to permanently deprive the rightful owner of the property, but the Tenth Circuit disagreed, finding Mr. Obregon’s “application of legal imagination” did not suffice to show that the requisite scienter was permanent deprivation. The Tenth Circuit affirmed the BIA’s determination that Mr. Obregon’s possession of stolen property crimes were crimes involving moral turpitude.

However, as to Mr. Obregon’s argument that he was eligible for waiver because he adjusted his status to that of LPR after entering the United States, the Tenth Circuit agreed. Following recent Tenth Circuit and BIA precedent, the Tenth Circuit ruled that the plain language of the waiver statute barred application for waiver only for those who received LPR status before or upon entering the United States.

The Tenth Circuit affirmed in part, reversed in part, and remanded for further proceedings.

Tenth Circuit: Violation of No-Contact Order Creates Grounds for Removal

The Tenth Circuit Court of Appeals issued its opinion in Cespedes v. Lynch on Thursday, November 19, 2015.

Jose Ramon Cespedes, a native and citizen of Venezuela, became a conditional lawful permanent resident of the United States in 2012. He was later charged with domestic violence in Utah state court, and in April 2013, that court issued a protective order against him. In November 2013, Cespedes pleaded guilty to an attempted violation of the protective order under its no-contact provision.

In May 2014, the Department of Homeland Security brought a charge to remove under 8 U.S.C. § 1227(a)(2)(E)(ii) against Cespedes for violation of the protection order. In a hearing before an immigration judge (IJ), Cespedes argued his conduct was not covered by § 1227. The IJ rejected his argument and ordered him removed from the United States. The BIA affirmed, relying on Matter of Strydom, 25 I. & N. Dec. 507, 510 (2011), in which Strydom was ordered removed for violating a no-contact order, and the BIA determined that no-contact orders “provided protection against threats of violence,” which could include contact in violation of a no-contact order.

On appeal to the Tenth Circuit, Cespedes conceded that Strydom would apply to his case but argued it was wrongly decided. The Tenth Circuit held that it was. The Tenth Circuit acknowledged that it owed the BIA deference under Chevron, and found that Cespedes’ contact in violation of the protective order violated § 1227.

Addressing Cespedes’ next argument, the Tenth Circuit found that “as purely a matter of English, the argument makes some sense,” but reading the language in context, the Tenth Circuit found that Congress would not have intended a state court to explain the purpose of each clause of a protective order. The Tenth Circuit recognized that all a state court would need to do is to find a violation of a protective order and the IJ and BIA would do the rest.

The Tenth Circuit affirmed the BIA and IJ.

Tenth Circuit: Couple’s Conflicting Statements Indicate Sham Marriage for Immigration Purposes

The Tenth Circuit Court of Appeals issued its opinion in Vladimirov v. Lynch on Tuesday, November 10, 2015.

Vladimir Vladimirov entered the United States in February 1996 as a nonimmigrant visitor authorized to stay until August 1996. However, he never left the United States. In 2005, he married Valentina Bakhrakh, a U.S. citizen. Bakhrakh filed an I-130 petition for alien relative to adjust Vladimirov’s immigration status, and Vladimirov filed an I-485 application for adjustment of status.

U.S. Customs and Immigration Services (USCIS) Officer Randall interviewed Bakhrakh and Vladimirov in March and May 2006 to ascertain the bona fides of their marriage. Based on their conflicting statements under oath about their address, how long they had lived there, the number of bedrooms and bathrooms at their address, Vladimirov’s marriage proposal, the type of ring, the wedding, their morning routine, and what they had done the previous weekend, Officer Randall requested a site visit, which occurred in April 2008 by USCIS Officer Gibson. Officer Gibson questioned Vladimirov about various items she found in home and he admitted they belonged to his ex-wife, not Bakhrakh. Vladimirov also admitted he and Bakhrakh did not have a valid marriage and had lied to make it appear as if they did. Officer Gibson met with Bakhrakh and her adult son the next day to discuss the evidence of the sham marriage and the consequences of falsifying an I-130. At the end of the interview, Bakhrakh withdrew the I-130 petition.

Based on Bakhrakh’s withdrawal of the I-130 and the evidence of the sham marriage, Officer Randall denied Vladimirov’s I-485 application. A Notice to Appear (NTA) was then filed against Vladimirov based on his misrepresentations and the sham marriage, and he requested a hearing in front of an immigration judge. The IJ determined the government had met its burden of establishing removability based on marriage fraud and ordered Vladimirov removed to Bulgaria. Vladimirov’s appeal to the BIA was dismissed.

Vladimirov appealed to the Tenth Circuit, arguing he was not given notice of the conduct forming the basis of the fraud charges, and the government’s evidence was insufficient to prove those charges. He also argued he was denied due process in the administrative proceedings. The Tenth Circuit denied each claim in turn. The Tenth Circuit found that the NTA clearly charged him with entering into a sham marriage with Bakhrakh, and fraud and willful misrepresentation in filing an I-485 based on the sham marriage. The marriage fraud charge was based on Vladimirov’s representation that he was in a bona fide marriage with Bakhrakh. The Tenth Circuit found that this provided a basis for removability, and the NTA gave Vladimirov adequate notice of the charges against him.

As for Vladimirov’s contention that the evidence was insufficient to prove the charges against him, the Tenth Circuit declined to independently weigh the evidence. The Circuit found substantial record support for the finding that the couple’s conflicting statements about their lives together indicated they were not in a valid marriage, and together with Vladimirov’s admission about the I-485 and Bakhrakh’s withdrawal of the I-130, ample evidence supported the IJ’s finding.

Turning to Vladimirov’s due process contentions, the Tenth Circuit noted that immigration proceedings need not approximate constitutional protections afforded to criminal defendants. Vladimirov asserted four violations of his due process rights. First, he argued he was not afforded an opportunity to cross-examine Officer Gibson. The Tenth Circuit noted that there was no circuit authority requiring personal appearance by a government agent. Although the Circuit noted that better contrary evidence than Officer Gibson’s report may have “carried the day,” Vladimirov chose not to testify in his own defense, thereby forgoing any opportunity to refute the information in Officer Gibson’s report. Vladimirov next contended that the government erred by introducing “triple hearsay” in Officer Gibson’s report. However, the Tenth Circuit again noted that hearsay is regularly used in administrative adjudications, which lack the constitutional requirement of confrontation as afforded to criminal defendants. Next, Vladimirov argued that the Form I-213 denial of his I-485 application was prepared in anticipation of litigation and so lacked a presumption of reliability. Again, the Tenth Circuit rejected Vladimirov’s arguments, finding no evidence of unreliability. Finally, the Tenth Circuit considered Vladimirov’s contention that Bakhrakh was coerced into withdrawing her I-130. The Tenth Circuit characterized the allegations as serious, but noted that informing someone of the consequences of marriage fraud is not coercion.

The Tenth Circuit denied Vladimirov’s petition to review.

Tenth Circuit: Criminal Impersonation is Categorically a Crime Involving Moral Turpitude

The Tenth Circuit Court of Appeals issued its opinion in Veloz-Luvevano v. Lynch on July 24, 2015, and granted the respondent’s motion to publish on Monday, August 31, 2015.

Manuel Veloz-Luvevano entered the United States with a B-2 visitor visa in February 1998, but did not leave when the 6-month entry period expired. In July 2000, he was arrested by Colorado authorities for possessing a forged social security card and released on bond, but he failed to appear for court proceedings. In September 2009, he was found and re-arrested on the same criminal charges. Three days later, the federal government initiated removal proceedings. In February 2010, while the removal proceedings were pending, he pleaded guilty to the criminal impersonation charges. In December 2010, he conceded removability but applied for cancellation of removal, claiming removal would cause hardship to his wife and children. The government moved to pretermit his application because criminal impersonation is categorically a crime involving moral turpitude (CIMT) since it necessarily involves fraud. As an alternative, the government gave Veloz-Luvevano the opportunity to accept a pre-conclusion voluntary departure if he waived his appeal. He accepted the government’s offer and was given until July 30, 2012, to voluntarily depart from the United States.

In May 2012, through new counsel, Veloz-Luvevano appealed to the BIA, claiming the IJ erred in pretermitting his application. The BIA summarily dismissed the appeal on July 27, 2012. Veloz-Luvevano did not leave the United States, and in November 2012 he filed a motion to reopen the removal proceedings, claiming ineffective assistance of counsel. The IJ denied the motion as untimely, and, alternatively, ruled that Veloz-Luvevano’s Colorado conviction was, in fact, a CIMT, and therefore Veloz-Luvevano was not eligible for cancellation of removal. Veloz-Luvevano again appealed to the BIA, and the BIA decided that criminal impersonation was categorically a CIMT, denying his motion. Veloz-Luvevano appealed to the Tenth Circuit.

The Tenth Circuit, like the BIA and IJ, determined Veloz-Luvevano was not eligible for cancellation of removal because criminal impersonation is categorically a CIMT, since it necessarily involves fraud. Veloz-Luvevano argued that, in his case, there was no fraud because the social security number he was using was not assigned to anyone. The Tenth Circuit rejected his argument, noting first that Veloz-Luvevano failed to produce any supporting evidence for his argument that the social security number was unassigned, and next commenting that regardless of whether the number was assigned, criminal impersonation is categorically a CIMT. The Tenth Circuit found that Veloz-Luvevano’s first counsel was not ineffective for failing to produce documentation to support that the number was unassigned. The Tenth Circuit summarily disposed of Veloz-Luvevano’s remaining arguments as well, finding record support that his waiver of the right to appeal was knowing and voluntary and that neither the IJ nor the BIA was able to review the government’s discretionary decisions.

The BIA’s dismissal was affirmed.

Tenth Circuit: “Particular Social Group” Need Not Be Visibly Distinct But Must Have Distinguishing Characteristic

The Tenth Circuit Court of Appeals issued its opinion in Rodas-Orellana v. Holder on Monday, March 2, 2015.

Benjamin Rodas-Orellana entered the United States on or around September 6, 2006, when he was 17 years old, and DHS commenced removal proceedings on September 16, 2006. Mr. Rodas-Orellana appeared before an IJ on August 28, 2007, and conceded removability but applied for asylum and withholding of removal, indicating he sought to escape poverty and gang violence in El Salvador. Mr. Rodas-Orellana specifically contended that the MS-13 gang had pressured him to join in the past and he had resisted, and this constituted a well-founded fear of persecution because of his membership in a particular social group, specifically young Salvadoran males who refused to join the gang.

On June 28, 2012, the IJ denied Mr. Rodas-Orellana’s applications for asylum and withholding of removal, finding that although Mr. Rodas-Orellana had suffered in the past at the hands of gang members, he had indicated no reason for him to be targeted by gang members other than their general desire to control the population in their areas. The IJ further concluded that Salvadoran youth who have resisted recruitment by gangs do not constitute a particular social group. Mr. Rodas-Orellana appealed to the BIA, who rejected his appeal in a January 22, 2014 final order of removal. The BIA agreed with the IJ that Mr. Rodas-Orellana’s rejection of gang membership did not place him in a particular social group, and also that perceived American nationality did not constitute a particular social group. On March 11, 2014, Mr. Rodas-Orellana filed a motion to reconsider with the BIA in light of two recent decisions, but the BIA denied his motion on May 1, 2014. On June 13, 2014, Mr. Rodas-Orellana filed a motion to consolidate his two BIA appeals, which the Tenth Circuit granted.

The Tenth Circuit reviewed the two BIA denials to consider (1) if the BIA erred in determining Mr. Rodas-Orellana was not a member of a particular social group, in light of recent BIA decisions on the issue, and (2) if the BIA erred in determining Mr. Rodas-Orellana was not persecuted based on his membership in a particular social group.

The Tenth Circuit first examined the BIA’s interpretation of the term “particular social group,” especially in light of the two recent BIA decisions narrowing its definition. The Tenth Circuit determined that a group need not be literally visibly distinguishable to constitute a “particular social group” but must have some special characteristic enabling recognition of group members. The Tenth Circuit found Mr. Rodas-Orellana failed to prove that his proposed group of young Salvadoran males who resist gang membership is socially distinct. The Tenth Circuit’s 2012 decision in Rivera-Barrientos v. Holder, 666 F.3d 641 (10th Cir. 2012), where a young Salvadoran female who resisted gang membership was denied asylum, controlled as to Mr. Rodas-Orellana. Although the record reflected that gang activity is not well controlled in El Salvador, nothing suggested that Mr. Rodas-Orellana belonged to a group more susceptible to gang violence than general members of the population.

The Tenth Circuit denied Mr. Rodas-Orellana’s petition for review, finding no evidence that Mr. Rodas-Orellana was a member of a particular social group or that he was persecuted because of that membership.

Tenth Circuit: Waivers of Inadmissibility Only Precluded for Individuals Who Became LPRs at Time of Admission

The Tenth Circuit Court of Appeals issued its opinion in Medina-Rosales v. Holder on Tuesday, February 24, 2015.

Carlos Jovany Medina-Rosales entered the United States at an unknown date and became a lawful permanent resident (LPR) on November 27, 2001. On August 8, 2013, he was convicted of grand larceny in Oklahoma state court, and DHS began removal proceedings a month later. The notice of removal ordered him to appear before an immigration judge in Dallas, even though the issuing officer was in Tulsa. Medina-Rosales appeared in front of the Dallas IJ via videoconference. He conceded removability but sought a waiver of inadmissibility under § 1182(h). The IJ determined Tenth Circuit law applied, despite his physical location in Dallas, and determined Mr. Medina-Rosales was ineligible for a waiver of inadmissibility. The BIA dismissed Mr. Medina-Rosales’ appeal, and Mr. Medina-Rosales petitioned the Tenth Circuit for review.

The Tenth Circuit determined as a preliminary matter that Tenth Circuit law applied, since the charging document determines the location of the proceeding and in this case the charging document was issued in Tulsa. The IJ’s presence in Dallas did not change the location of the proceedings.

The Tenth Circuit next addressed whether § 1182’s waiver of inadmissibility language applies to individuals who became LPRs at some point after admission into the United States. Most circuits to have addressed the issue agree that the plain language of § 1182 contemplates that it only applies to individuals who were admitted at the time they became LPRs, but the Tenth Circuit had not addressed the issue.

After examining the language of § 1182, the Tenth Circuit agreed with the other circuits that the statute only precluded waivers of inadmissibility for those individuals who were admitted at the same time they became LPRs. Because Mr. Medina-Rosales was admitted at some undetermined time prior to becoming an LPR, the language did not apply to him. Despite the seemingly illogical conclusion that Congress intended the statute only to apply to those who were admitted at the same time they became LPRs, the Tenth Circuit found that Congress had ample opportunity to amend the statute and had not done so.

The Tenth Circuit found Mr. Medina-Rosales to be eligible for discretionary consideration of waiver of inadmissibility under § 1182 and remanded for further proceedings.

Tenth Circuit: Reinstatement of Removal Not Final Until Reasonable Fear Proceedings Complete

The Tenth Circuit Court of Appeals issued its opinion in Luna-Garcia v. Holder on Tuesday, February 10, 2015.

Melida Teresa Luna-Garcia is a native of Guatemala whose removal was ordered in 2004. She executed that order in 2007 when she left the United States and returned to Guatemala. She was again discovered in the United States on July 9, 2014, and DHS reinstated the 2004 removal order on July 11, 2014. Luna-Garcia expressed fear of harm if she returned to Guatemala and was referred to an asylum officer. She filed a petition for review with the Tenth Circuit on August 11, 2014, before the asylum officer issued a reasonable fear determination. Later, the asylum officer determined she did not have a reasonable fear, but an immigration judge has since reversed the asylum officer’s finding and Luna-Garcia is now in withholding of removal proceedings before the immigration judge.

Luna-Garcia requested the Tenth Circuit to determine when a reinstatement of removal order is final for purposes of appeal. The Tenth Circuit explained the process of reinstating a removal order and possibilities for review of reinstatement. The INA defines finality in terms of review by the BIA, but reinstatement orders are not appealable to the BIA. The Tenth Circuit examined the meaning of “final” and found that it generally means there is nothing more to do than execute the judgment. In the case where an alien argues fear of harm precludes removal, the reinstatement order is not final until the reasonable fear proceedings are complete.

The Tenth Circuit granted the government’s motion and dismissed the proceedings for lack of jurisdiction.

Colorado Court of Appeals: State Court Retains Jurisdiction Where Removal Attempt Without Slightest Color of Merit

The Colorado Court of Appeals issued its opinion in McDonald v. Zions First National Bank, N.A. on Thursday, March 12, 2015.

Construction Loan Agreement Dispute—Partial Summary Judgment—Jurisdiction—Motion for New Trial.

In 2007, plaintiff purchased a parcel of land to construct a building on it. He entered into a loan transaction with defendant Zions First National Bank and signed a construction loan agreement (Agreement).

Plaintiff submitted applications for disbursement of loan funds, some of which defendant paid and some which it rejected. Plaintiff alleged defendant’s refusal to disburse all the loan funds required him to pay certain vendors out of his own pocket. Eventually, plaintiff defaulted on the loan and defendant foreclosed on the property.

Plaintiff sued in 2009, alleging defendant breached the Agreement and an implied covenant of good faith and fair dealing. After discovery, defendant moved for summary judgment. Plaintiff filed an unverified response. The trial court partially granted defendant’s motion, dismissing plaintiff’s two substantive claims, but did not issue judgment on defendant’s counterclaims due to genuine issues of material fact. Defendant filed a motion to dismiss its counterclaims without prejudice. The court granted the motions and vacated the trial date. The court also granted defendant’s request for attorney fees pursuant to the Agreement and entered judgment in favor of defendant in the amount of $102,267.75.

Defendant tried to collect from plaintiff for almost three years, during which time defendant filed a notice of removal of the action in the U.S. District Court for the District of Colorado. There had not been an acceptance of that action or a remand from the federal court. On December 23, 2013, defendant requested the trial court certify its order granting partial summary judgment as final.

The Court of Appeals first analyzed whether the trial court had jurisdiction to certify its order as final under CRCP 54(b) and, if so, whether the Court had jurisdiction to review it. Following analysis of the attempt at removal to the federal court, the Court held in a matter of first impression that where a party’s notice of removal indicates, on its face and as a matter of law, that the attempt to remove the case is without the slightest color of right or merit, jurisdiction in the Colorado courts is not divested. Plaintiff had no ability to remove this case to federal court; therefore, jurisdiction was not divested by the filing of the notice of removal. The Court concluded that because only the grant of partial summary judgment was certified as a final order, only challenges to the propriety of that order were properly before it. This disposed of many of plaintiff’s challenges.

The Court then turned to the breach of contract claim and found that there was no genuine issue of material fact because defendant had submitted evidence showing it did not breach its contractual duties and plaintiff had failed to refute this evidence. Plaintiff’s second claim alleged breach of an implied covenant of good faith and fair dealing. Again, there was no genuine issue of material fact because plaintiff submitted no evidence showing such a breach and defendant’s evidence showed no such breach.

Plaintiff also filed three motions under CRCP 59, one of which was accompanied by an affidavit from his real estate agent. The affidavit was not timely filed. The motion did not attempt to demonstrate any evidence that was newly discovered or could not have previously been discovered by the exercise of reasonable diligence. The Court found no abuse of discretion in denying the motions. The summary judgment and order denying motions for a new trial were affirmed.

Tenth Circuit: Citizenship of Beneficiaries to Trust Necessary to Determine Diversity Jurisdiction

The Tenth Circuit Court of Appeals issued its opinion in ConAgra Foods, Inc. v. Americold Logistics, LLC on Tuesday, January 27, 2015.

Multiple plaintiffs brought suit against Americold Logistics, LLC and Americold Realty Trust (collectively, Americold) in Kansas state court. Americold removed to the U.S. District Court for the District of Kansas, asserting complete diversity of the parties. No party challenged removal and the district court did not address the issue. The district court granted summary judgment to Americold and plaintiffs timely appealed on the merits. On appeal, the Tenth Circuit noticed a potential defect in the notice of removal and ordered Americold to file supplemental briefing to address whether Americold’s Notice of Removal was sufficient to establish diversity jurisdiction and, if not, what curative facts could correct the defect in the appeal?

In its supplemental briefing, Americold asserted the omission of the citizenship of the beneficiaries of the Americold Realty Trust was not a jurisdictional defect because the citizenship of a trust is determined solely by the citizenship of its trustees. The Tenth Circuit disagreed. After analyzing Supreme Court precedent in Navarro and Carden, the Tenth Circuit found the citizenship of a trust depends on not only the citizenship of the trustees but also that of its beneficiaries. The Tenth Circuit ruled that when a trustee is a party to litigation, it is the trustee’s citizenship that controls for diversity jurisdiction purposes, as long as the trustee satisfies Navarro‘s real-party-in-interest test. However, when a trust itself is party to the litigation, the citizenship of the trust is derived from all of the trust’s “members.” In this case, the Tenth Circuit found that at a minimum the trust’s “members” were its beneficiaries.

The Tenth Circuit found Americold failed to meet its burden to establish diversity jurisdiction because it failed to present evidence of the citizenship of its beneficiaries. The Tenth Circuit remanded to the district court to vacate its judgment on the merits and remand to state court.

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

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

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

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

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

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

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

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

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

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

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