Justia U.S. 10th Circuit Court of Appeals Opinion Summaries

Articles Posted in Immigration Law
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The Department of Homeland Security initiated proceedings to remove petitioner Gustavo Mena-Flores from the United States on the ground that he was in the country illegally. Petitioner conceded removability, but applied to adjust his status to permanent residency based on his marriage to a U.S. citizen. The immigration judge eventually denied the request, stating that petitioner was ineligible for permanent residency because of a “reasonable belief” that he had participated in drug trafficking. On appeal the Board of Immigration Appeals affirmed, concluding that the immigration judge had sufficient evidence to find a reason to believe that petitioner had participated in drug trafficking. Petitioner then appealed to the Tenth Circuit for review the Board’s denial of his request for adjustment in status. While the petition was pending, the Board denied petitioner's subsequent motions to reopen the case and reconsider the denial of his motion to reopen. Petitioner then filed petitions seeking review of these denials. After review, the Tenth Circuit denied petitioner's petitions, finding no reversible error in the Board's decisions. View "Mena-Flores v. Holder" on Justia Law

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Ramirez-Coria illegally entered the United States in 1995. He was placed in removal proceedings in April 2009, and conceded removability at his initial hearing. At a second hearing in May 2009, Ramirez-Coria requested a continuance in order to complete his application for cancellation of removal (Form EOIR-42B). The instructions on Form EOIR-42B directed Ramirez-Coria to: (1) attend an appointment with a nearby immigration Application Support Center (ASC) to provide biometric information; (2) obtain a biometrics confirmation notice from the ASC and bring it to his hearing as evidence he had provided his biometrics; and (3) file the completed Form EOIR-42B application and all supporting documentation with the Immigration Court within the time period directed by the IJ. Because Ramirez-Coria had not included the biometric information with his application, the IJ rescheduled his hearing to October 2010, eighteen months away. The IJ later rescheduled the hearing to January 2012, but shortly before the hearing Ramirez-Coria’s counsel moved to withdraw, stating his client had “lost interest in his own case.” New counsel entered an appearance, and the hearing was rescheduled for March 2, 2012. Ramirez-Coria submitted his supporting documentation for the application two days before the March hearing, but without the biometric information. At the hearing, counsel told the IJ that Ramirez-Coria had gone to an ASC the day before and provided his fingerprints. Officials at ASC would not take Ramirez-Coria’s fingerprints without any identification or birth certificate, and counsel stated that Ramirez-Coria had lacked any form of identification for the past three years until the day before the hearing. The government stated that DHS had no record that Ramirez-Coria had provided his fingerprints. Counsel did not dispute the IJ’s observation that the DHS obviously had not had time to complete its required investigation. The IJ also noted that all of Ramirez-Coria’s supporting documentation for the application was untimely because the Immigration Court Practice Manual requires all filings to be submitted at least fifteen days in advance of the hearing. Counsel stated her office had been diligent in contacting Ramirez-Coria, but he had been working a lot and it had been difficult to get the documentation. The IJ determined that Ramirez-Coria’s application for cancellation of removal should have been deemed abandoned and concluded that he had not shown good cause for failing to complete the biometric requirement in over two years, nor had his counsel ever informed the IJ that he was having any problem obtaining his fingerprints. The IJ dismissed his application, but granted Ramirez-Coria voluntary departure. Ramirez-Coria appealed to the BIA, which concluded the IJ properly deemed his cancellation-of-removal application abandoned, and it dismissed his appeal. Finding no reversible error, the Tenth Circuit denied Ramirez-Coria's petition. View "Ramirez-Coria v. Holder" on Justia Law

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After a sting operation involving two confidential informants and substantial audio and video surveillance, federal law enforcement officers caught Jesus Cabral-Ramirez ("Mr. Cabral") and Defendant-Appellant Maria Gutierrez de Lopez ("Ms. Gutierrez") attempting to transport an undocumented alien from El Paso, Texas to Denver, Colorado. A federal grand jury indicted Ms. Gutierrez on one count of conspiring to transport undocumented aliens. At trial, the Government elicited testimony from Border Patrol Agent Brian Knoll about the immigration status of the individual Ms. Gutierrez allegedly conspired to smuggle. Agent Knoll also provided expert testimony that transporting undocumented aliens away from U.S./Mexico border regions to the interior of the United States significantly reduced the odds of apprehension by law enforcement. The confidential government informants testified anonymously about several conversations they had with Ms. Gutierrez tending to support the charges against her. Although the Government provided the defense with the informants’ general criminal backgrounds, compensation records from federal agencies, and immigration status, it did not disclose their actual identities. Defense counsel cross-examined both witnesses in light of the disclosures provided by the Government, but was unable to conduct adequate independent pre-trial investigation. The jury convicted Ms. Gutierrez as charged, and the district court sentenced her to three years of probation. She appealed, arguing: (1) Agent Knoll’s testimony about the smuggled individual’s immigration status introduced inadmissible testimonial hearsay in violation of the Federal Rules of Evidence and the Confrontation Clause; (2) Agent Knoll’s expert testimony about the alien-smuggling trade was not helpful to the jury under Federal Rule of Evidence 702(a); and (3) the Government’s use of anonymous testimony violated the Confrontation Clause of the Sixth Amendment. Finding no reversible error, the Tenth Circuit affirmed. View "United States v. Gutierrez De Lopez" on Justia Law

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Ernest McKenzie’s Canadian birth certificate listed the wrong birth date. Because he used that birth certificate to become a naturalized United States citizen, his United States Certificate of Naturalization also listed the wrong birth date. After he was naturalized, he got his birth certificate corrected; he tried to amend his naturalization certificate so that his paperwork listed the correct date. Relying on 8 C.F.R. 334.16(b) (2011) to establish the district court’s jurisdiction, he filed suit requesting that the district court order United States Citizenship and Immigration Services (USCIS) to issue a naturalization certificate with his correct date of birth. "The request seems fair and simple enough," but the Tenth Circuit could not help: "With limited exceptions not applicable here, Congress has withdrawn jurisdiction over naturalizations from the district courts. In addition, the district court lacked jurisdiction because Dr. McKenzie’s invocation of 334.16(b) is not a colorable claim." The Court affirmed the district court's dismissal of this action under Fed. R. Civ. P. 12(b)(1).View "McKenzie v. US Citizenship & Immigration" on Justia Law

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Petitioner Enrique Garcia-Mendoza petitioned the Tenth Circuit for review of the Board of Immigration Appeals’ (BIA) decision upholding an Immigration Judge’s (IJ) denial of his request for cancellation of removal. The agency determined that he was ineligible for such relief because he could not establish that he "ha[d] been a person of good moral character" due to his confinement in a penal institution for more than 180 days. In 2010, he was arrested and charged with driving under the influence and leaving the scene of an accident. He could not afford bond and remained confined during his pretrial criminal proceedings. He was released after he had been confined for a total of 197 days when the Department of Homeland Security (DHS) took him into custody and initiated removal proceedings. Petitioner conceded that he was removable for remaining in the United States beyond his authorized period of stay and applied for cancellation of removal. The IJ denied his request because petitioner had been confined for more than 180 days for his 2010 conviction and therefore he could not establish the requisite good moral character. While petitioner’s appeal of that decision was pending with the BIA, he filed a motion with the state trial court seeking to amend his sentence. In the motion, he alleged that his counsel failed to advise him of the immigration consequences of his sentence before he entered his guilty plea. He asked the court to resentence him to 166 days with no credit for time served. The state court granted the motion and issued a modified mittimus nunc pro tunc to the original sentencing date. Petitioner then filed a motion for remand with the BIA based on the new evidence that his sentence was modified to 166 days. The BIA granted the motion and remanded to the IJ. On remand, the IJ again denied cancellation of removal, noting that the nunc pro tunc order modifying the sentence did not change the fact that petitioner had already been confined for more than 180 days as a result of his conviction. The BIA upheld the IJ’s decision. Petitioner then petitioned the Tenth Circuit. Seeing no reversible error, the Tenth Circuit Court of Appeals denied review. View "Garcia-Mendoza v. Holder" on Justia Law

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Husband and wife Alberto Martinez Molina and Cristina Ramirez Rivera were Mexican citizens subject to final orders of removal from the United States. After an immigration judge declined to cancel their removal orders, the couple filed a motion to reopen based on ineffective representation of counsel. With the motion, they submitted evidence that they had resided in the United States since 1998. The Board of Immigration Appeals denied the motion, reasoning that the couple had not shown prejudice because the evidence that they submitted: (1) could not overcome discrepancies in their testimony, and (2) was the same or substantially similar to the evidence considered by the immigration judge. The spouses then filed a petition for review, arguing that: (1) the Board abused its discretion in rejecting their claim for ineffective representation, and (2) the immigration judge failed to consider the entire record. As to Ms. Ramirez, the Tenth Circuit affirmed: the Board acted within its discretion in rejecting her ineffective-representation claim, and Ms. Ramirez did not exhaust her claim involving failure of the immigration judge to consider the entire record. As to Mr. Martinez, the Court remanded to the Board: Mr. Martinez did not exhaust his claim involving failure to consider the entire record, but he did exhaust his ineffective-representation claim, and the Board abused its discretion when it mistakenly concluded that the newly submitted evidence was the same or substantially similar to the evidence considered by the immigration judge. View "Molina v. Holder" on Justia Law

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Hoping to remain in the United States from her native Jamaica, Defendant-Appellant Shannakay Hunter married a United States citizen. The government regarded the marriage as a sham and charged defendant with conspiracy and participation in a fraudulent marriage. A jury found her guilty on both charges. Defendant appealed, arguing that: (1) the district court should have required proof that defendant had married solely to evade the immigration laws; (2) the evidence of guilt was insufficient; (3) the marriage was “void” under state law; (4) the application of 8 U.S.C. 1325(c) resulted in a denial of equal protection, and (5) section 1325(c) is overbroad. Rejecting each argument, the Tenth Circuit affirmed. View "United States v. Hunter" on Justia Law

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An immigration judge found petitioner Nadia Maatougui removable for marriage fraud in 2004. Petitioner then asylum and four other forms of relief from removal. The Immigration Judge denied the requests, and the Board of Immigration Appeals affirmed. Petitioner claimed on appeal to the Tenth Circuit that 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. Under case law, the Tenth Circuit determined it did not have jurisdiction to overturn their credibility determinations or evidence weighing, and thus could not grant relief on that claim. Petitioner also claimed that changed conditions in her native Morocco and the ineffective assistance of her prior counsel at a hearing in 2004 merited reopening her case. The Tenth Circuit concluded petitioner failed to present new, material, previously unavailable evidence that justified reopening her case. View "Maatougui v. Holder, Jr." on Justia Law

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Petitioner Arturo Velasco appealed an order of the Board of Immigration Appeals (BIA) that dismissed his appeal of an immigration judge's (IJ) order denying his application for cancellation of removal under the Immigration and Nationality Act (INA). Because petitioner had been granted suspension of deportation during prior deportation proceedings, he was ineligible for cancellation of removal. View "Velasco v. Holder" on Justia Law

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An Indonesian couple appealed the denial of their applications for withholding of removal and relief under the Convention Against Torture (CAT). Upon review, the Tenth Circuit found the application was untimely, and therefore dismissed for lack of jurisdiction. View "Batubara v. Holder" on Justia Law