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

Petitioner Jean Paul Hernandez, a native and citizen of Mexico, challenged a Board of Immigration Appeals' (BIA) decision affirming an immigration judge's denial of adjustment of status and a waiver of inadmissibility. Petitioner entered the United States on a B-2 visitor visa and overstayed his visit. Nearly twenty years later, the Department of Homeland Security charged him with remaining in this country without authorization. Petitioner conceded he was removable, but he sought several forms of relief, including adjustment of status. At a hearing, Petitioner testified that he came to this country when he was nine years old and had since been convicted of various crimes as a juvenile and adult, but was attempting to turn his life around. Due to his criminal convictions, however, in particular, two petty theft offenses and two controlled substance violations, the IJ concluded that Petitioner was ineligible for adjustment of status or a waiver of inadmissibility. Alternatively, the IJ ruled that even if Petitioner was eligible for adjustment of status, he did not warrant such discretionary relief because his extensive criminal record outweighed the positive attributes in his case, and there was no evidence of rehabilitation. The IJ thus ordered Petitioner removed to Mexico. The BIA affirmed. Finding that Petitioner characterized his argument "as one based on due process, but he cannot transform his challenge to the BIA’s denial of discretionary relief into a claim of constitutional magnitude for the simple reason that he had no due process interest in obtaining purely discretionary relief." The Court concluded it lacked jurisdiction for further review and dismissed the case.

Petitioner Omar Garcia-Tinoco, a native and citizen of Mexico, challenged the Bureau of Immigration Appeals' (BIA's) decision dismissing his appeal of a removal order. Petitioner entered the U.S. without inspection in 1994. Five years later, he pled guilty in Colorado to possession of cocaine. In 2010, the Department of Homeland Security commenced removal proceedings against him. He appeared before an immigration judge (IJ) and conceded that he was in the country illegally, but contested removal on the basis of his controlled-substance conviction because he was "in the process of withdrawing his guilty plea pursuant to a violation of his constitutional rights." To that end, Petitioner filed a post-conviction petition in state court, arguing that his guilty plea was the result of ineffective assistance of counsel. The IJ denied the motion and ordered Petitioner removed. The BIA affirmed, stating that the IJ was not required to grant a continuance because Petitioner's "collateral attack upon his conviction d[id] not … negate its validity." Petitioner asked the Tenth Circuit to reverse the decision of the IJ and hold that he established good cause for a continuance. Upon review, the Court found that it lacked jurisdiction to review the case: "constitutional infirmities in collateral proceedings are 'categorically' beyond the scope of [the Court's] review."

Petitioner Joel Ruelas-Rios sought judicial review of the Department of Homeland Security's (DHS) order that reinstated his prior removal order. Petitioner is a native and citizen of Mexico. He applied for admission to the United States in 1998 by falsely representing himself as a lawful permanent resident of the United States. Petitioner presented another person’s valid Resident Alien Card at the border. Petitioner was removed that same day under expedited procedures. In 2011, Petitioner was detained in Kansas while attempting to enter McConnell Air Force Base to perform work as a contractor. DHS issued Petitioner notice of its intent to reinstate his prior removal order as an alien who illegally reentered the United States after having been previously removed. Petitioner petitioned for review of DHS's reinstatement order, raising a single contention: whether reinstatement of a prior removal order, without providing the alien a hearing before an immigration judge, is a violation of due process when the alien was also denied a hearing in connection with the prior removal order and had been in the United States for an extended period of time. Because Petitioner failed to establish any prejudice as a result of not being afforded a hearing before an immigration judge, his due process claim failed. The Tenth Circuit denied Petitioner's request for review.

After Defendant Gilberto Cruz-Arellanes was sentenced for illegally reentering the country, the Sentencing Commission issued an amendment (Amendment 740) to the illegal reentry guideline. The amendment discusses when and under what conditions a district court might wish to depart downward due to a defendant’s cultural assimilation. Seeking the benefit of this new guidance, Defendant filed a motion for a sentence reduction. The district court denied the motion. Defendant appealed, arguing the court abused its discretion in not applying the amended sentencing guidelines. Finding no abuse of discretion, the Tenth Circuit affirmed the district court's order and Defendant's sentence.

Defendant-appellant Dennis Enriquez Lopez-Avila was charged with unlawful re-entry after deportation following an aggravated felony conviction. Defendant entered a guilty plea after reaching an agreement with the prosecution. The district court rejected Defendant's request for a sentence below that calculated under the advisory guidelines and sentenced him to thirty-seven months' imprisonment. Defendant argued on appeal that his sentence was procedurally unreasonable because the district court erroneously concluded that it could not consider the disparities created by the existence of fast-track programs when determining his sentence. Upon review, the Tenth Circuit found that Defendant presented a "generalized argument" which alone is not sufficient to justify a variance from the sentencing guidelines because of different sentencing guidelines for fast-track programs. Therefore, the Court rejected Defendant's claim of error and affirmed the district court's decision.

Petitioner Abidan Gedioni Pacaja Vicente, a Guatemalan citizen, sought judicial review of the Board of Immigration Appeals (BIA) order that affirmed the Immigration Judge's (IJ) removal order against him. Both denied his claims for asylum, restriction on removal, and protection under the Convention Against Torture (CAT). At the IJ hearing, Petitioner testified that he was afraid of guerrilla violence against himself and his family in his home country dating as far back as 2002. The IJ first concluded Petitioner's asylum application was untimely and further determined that Petitioner had not established extraordinary circumstances to excuse the untimely filing. In an alternative ruling, the IJ denied Petitioner's petition because he failed to establish a nexus between the 2002 event and either a political opinion or membership in a particular social group. The BIA affirmed on the latter ground. Upon review of the IJ and BIA record, the Tenth Circuit concluded that Petitioner failed to carry his burden of proof to overcome the removal order against him. The Court denied Petitioner's request for review.

Defendant-Appellant Mario Casas-Tapia is a citizen of Mexico who lawfully immigrated to the United States with his parents when he was six months old. He was admitted to the United States as a lawful permanent resident, but he lost that status following his criminal convictions while a teenager. In 1998, at the age of eighteen, he pled guilty to misdemeanor assault and first-degree criminal trespass, an aggravated felony, and was deported. His immediate family remained in the United States. After living in Mexico for five years, Defendant returned illegally and resettled near his family. Since returning, he has been convicted of several misdemeanor and felony offenses. In 2010, he pled guilty to unlawful reentry of a removed alien subsequent to an aggravated felony conviction. In the presentence report, the probation officer calculated the sentencing range at thirty to thirty-seven months and recommended a sentence at the high end of the range based on Defendant's criminal history. Defendant moved for a below-guidelines sentence based on cultural assimilation. The court imposed a thirty-month sentence. The sole issue on appeal was whether the district court failed to recognize the scope of its legal authority to apply a downward departure for cultural assimilation. Because the Tenth Circuit concluded that the district court's denial was discretionary, the Court lacked jurisdiction and dismissed the appeal.

Defendant Miguel Hernandez-Valdez appealed his sentence of thirty-three months' imprisonment for having been convicted of being an alien in possession of a firearm. On appeal to the Tenth Circuit, Defendant argued that the district court erred in applying a four-level sentencing enhancement under the United States Sentencing Guidelines for his possession of the firearm in connection with another felony offense. Although the Court concluded the district court failed to engage in fact finding as required by the Federal Rules of Criminal Procedure, Defendant did not show that the court committed plain error. Accordingly, the Tenth Circuit affirmed the district court's calculation of Defendant's sentence.

Defendant Lazaro Villalobos-Varela appealed a district court’s sentence of thirty months' imprisonment for re-entry as a removed alien in violation of federal immigration law. According to Defendant, the district court incorrectly concluded that his Colorado felony menacing conviction was a crime of violence and subjected him to a 16-Level Enhancement under the United States Sentencing Guideline Manual (USSG) 2L1.2. Upon review and analysis of Defendant's Colorado conviction, the Tenth Circuit concluded that indeed "felony menacing" was a crime of violence, and that the district court correctly calculated his sentence. The Court therefore affirmed the judgment of the district court.

Pro se prisoner Petitioner Jakub Lonski appealed a district court's dismissal of his "motion for adjustment of sentence pursuant to a habeas petition." Petitioner claimed Canadian citizenship and was being held in New Mexico. He was convicted of a federal drug-related offense in California and sentenced to 42 months' imprisonment. He argued that because of his alien status rendering him ineligible for certain drug-treatment programs and residential re-entry programs made his sentence was harsher than ones imposed on citizen-prisoners. The Tenth Circuit found that district court correctly held that it had no jurisdiction to alter a sentence imposed by another court unless Congress had expressly authorized such action. On appeal, however, Petitioner changed his argument. Before the Tenth Circuit, he claimed that he should have been given a hearing so that he could complete deportation proceedings while in prison so that he could be immediately deported on release. The Tenth Circuit declined to consider Petitioner's new arguments, and affirmed the district court's denial of his motion.