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

Petitioner Gong Geng Chen petitioned the Tenth Circuit to review a decision of the Board of Immigration Appeals (BIA) that denied his motion to reopen as untimely. Petitioner n is a native and citizen of the People’s Republic of China. He illegally entered the United States in April 1993. In August of that same year he filed an asylum application in which he asserted that he had been persecuted because of his religious beliefs. Removal proceedings were initiated. After conceding removability, he filed for asylum, withholding of removal, and protection under the Convention Against Torture. On appeal, Petitioner asked the BIA to remand his case to the IJ to consider the impact of worsening conditions for members of unofficial churches in China. In January 2010, more than ninety days following the BIA’s order dismissing his appeal and denying his motion to remand, Petitioner filed a motion to reopen. He acknowledged the untimeliness of the motion, but argued that the time restriction did not apply because of changes in his personal circumstances and in country conditions. Upon review, the Tenth Circuit found that reports and other evidence proffered did not support Petitioner's contention that material changes in country conditions warranted asylum. Accordingly, the Court determined the BIA did not abuse its discretion in denying Petitioner's motion to reopen as untimely, and denied his petition.

Defendant-Appellant Uriel Santos-Santos appealed his sentence for illegal reentry after deportation subsequent to an aggravated felony conviction. He contended that the district court erred in applying a 16-level offense adjustment pursuant to the U.S. Sentencing Guidelines resulting in a 57-month sentence. Defendant, a Mexican citizen, was convicted in California of (1) inflicting corporal injury on a spouse with a specified prior conviction within seven years and (2) assault by means of force likely to produce great bodily injury. In 2007 he was deported to Mexico, but in January 2010 immigration officials discovered him in Arapahoe County Jail in Centennial, Colorado. That April, Defendant pled guilty to the federal offense. The Presentence Report, on the basis of Defendant's California assault conviction, reflected an offense adjustment of 16 offense levels for defendants who have unlawfully reentered after a conviction for a "crime of violence." This produced an advisory Guideline range of 57-71 months' imprisonment. Defendant unsuccessfully objected to the PSR. Upon review of the applicable legal authority, the Tenth Circuit concluded that the California convictions were "crimes of violence" under the Sentencing Guidelines. Because the district court did not err in enhancing Defendant's sentence based on those convictions, the Tenth Circuit affirmed the district court's judgment.

In 2009, Defendant Antonio Molina-Chavez pled guilty in the New Mexico district court to illegally reentering the United States. The court sentenced him to eight months in prison to be followed by a two-year term of supervised release. In November 2009, Defendant completed his prison term and the Department of Homeland Security removed him to Mexico. A year later, before his supervised release term had expired, Defendant was arrested in Tulsa, Oklahoma on a public intoxication charge. This arrest had two consequences relevant here: (1) Defendant was charged in federal court with illegally reentering the United States to which he pled guilty and was sentenced to ten months’ incarceration; (2) the district court revoked his 2009 supervised release and sentenced him to an additional five months in prison, to be served concurrently with the ten-month sentence on the illegal reentry charge. On appeal from both convictions, Defendant argued that the Oklahoma district court should have (1) permitted him to withdraw his guilty plea, and (2) dismissed the order revoking his supervised release. He contended that ambiguities in his 2009 New Mexico sentence provided him with authorization to reenter the United States legally. The Tenth Circuit disagreed, and therefore affirmed the district court’s judgment and sentence for illegal reentry. The Court dismissed Defendant's appeal concerning revocation of his supervised release as moot.

This appeal presented the Tenth Circuit with two questions related to the presence of "fast-track" programs for disposing of illegal re-entry and other immigration offenses in some federal districts, but not others. The first question was whether a sentencing court in a non-fast-track district has the discretion to consider sentence disparities caused by the existence of fast-track programs in other districts, and based thereon, vary from the applicable guideline range for a defendant charged with an immigration offense. If so, the second issue was whether the "apparently nebulous" eligibility requirements for fast-track programs relieve a defendant charged with an immigration offense in a non-fast-track district of the burden of showing entitlement to sentencing consistent with a fast-track program. Upon review, the Tenth Circuit held that (1) where the circumstances warrant, a district court in a non-fast-track district has the discretion to vary from a defendant’s applicable guideline range based on fast-track sentence disparities, but (2) a defendant bears the initial burden of showing entitlement, in some sense, to a variance based on fast-track sentence disparities.

Defendant Juan Alberto Saldivar-Munoz pleaded guilty to illegal reentry after previous deportation from the United States. In his plea agreement, Defendant preserved his right to appeal the district court’s grant of the government’s motion in limine to preclude the admission of evidence regarding his defenses of necessity or duress. On appeal to the Tenth Circuit, Defendant argued the district court erred in dismissing his proffered evidence in support of his necessity or duress defense. In 2007, Defendant was convicted of false impersonation. After serving a prison sentence, he was deported to Mexico in January 2008. But after several weeks, some members of a local gang approached him, saying they wanted him to run drugs over the border. Defendant was afraid of what the gang would do if he refused; several family members had paid thousands of dollars in ransom to gang members to used kidnapping as coercion. Defendant kept telling the gang he needed time to think about their proposal. But deadlines passed, and Defendant decided it was time to leave. Leaving his family behind, Defendant reentered the United States in late 2008. Upon review, the Tenth Circuit found that the district court did not abuse its discretion in concluding that Defendant failed to show he had no reasonable, legal alternative to violating the law: "[a]lthough some leeway needs be given to individuals responding to an emergency, they must still act in the most responsible manner available under the circumstances. … a defendant’s subjective belief that he has no available legal alternatives is insufficient to submit the question to a jury." Accordingly, the Court affirmed the district court's exclusion of Defendant's necessity or duress evidence.

Petitioner Arther Deyke Kasonso petitioned the Tenth Circuit to review of a Board of Immigration Appeals (BIA) order denying his motion for reconsideration. His petition raised a single, narrow issue: whether the BIA abused its discretion in declining to apply the "disfavored group analysis" adopted by some of the other circuits, to determine whether Petitioner was entitled to restriction on removal. Petitioner, a native and citizen of Indonesia, entered the United States in 1994 on a non-immigrant visa and overstayed his six-month authorization. He received a notice to appear, conceded removability, and filed applications for asylum, restriction on removal, and relieve under the Convention Against Torture. He alleged past persecution and a well-founded fear of future persecution in Indonesia because he is a Christian. After a hearing, an immigration judge denied his applications for relief from removal, but granted him voluntary departure. The BIA dismissed his appeal. Petitioner then filed a motion for reconsideration and request to reopen his case. Upon review, the Tenth Circuit found that Petitioner did not argue that the BIA failed to follow its established policy to apply Tenth Circuit precedent or misapplied that law in his case. Nor did he provide any other basis for us to conclude that the BIA abused its discretion in denying his motion for reconsideration. Accordingly, the Court affirmed the BIA's decision and dismissed Petitioner's request for review.

Petitioner Sushma KC sought review of a Board of Immigration Appeals’ (BIA) denial of her motion to reopen or reconsider its previous decision denying her asylum, withholding of removal, and protection under the Convention Against Torture (CAT). After arriving in this country, KC filed timely applications for asylum, but on June 23, 2008, an immigration judge (IJ) denied her applications, and ordered her to voluntarily depart or be removed to her native Nepal. In his oral decision, the IJ noted the threats she received: "the most recent and graphic of them was that her head would be cut off [by Maoist insurgents] unless she paid 300,000 rupees." The IJ concluded, however, that KC failed to satisfy the "one central reason" test (see 8 U.S.C. 1158(b)(1)(B)(i)) which required showing that one of the central reasons the Maoists targeted her was because of her political beliefs. KC appealed to the BIA, which upheld the IJ’s decision. The BIA concluded that "[t]he Immigration Judge reasonably determined based on the record as a whole that the Maoists’ demands for money were acts of extortion not related to the respondent’s political opinion." In addition, the BIA denied KC’s motion to remand her case to the IJ so that he could consider additional evidence concerning her husband’s disappearance. Because the BIA adopted the IJ’s analysis without further explanation, both to dismiss KC’s appeal and to deny reconsideration, the Tenth Circuit held that the BIA’s decision lacked "rational explanation." Accordingly, the Court held that the BIA abused its discretion, and remanded the case for further consideration. The Court affirmed the BIA in all other respects.

Appellant Gabriela Cordova-Soto petitioned the Tenth Circuit for review of a Department of Homeland Security (DHS) order reinstating her prior removal order under 8 U.S.C. 1231 (a)(5). Appellant is a native and citizen of Mexico, who entered the United States as a child and became a lawful permanent resident in 1991 at the age of 13. In 2005, DHS initiated removal proceedings against Appellant charging her as removable on three grounds: (1) as an aggravated felon; (2) as an alien convicted of two crimes involving moral turpitude; and (3) as an alien convicted of a controlled substance offense. Appellant had three Kansas state-law convictions, including a 2005 conviction for felony possession of methamphetamine for which she was sentenced to a suspended jail term of twenty months and eighteen months' probation. Appellant was found in 2010 in Wichita, Kansas and identified as an alien who had previously been removed. No criminal charges for illegal reentry were lodged against her, but DHS issued a Notice of Intent/Decision to Reinstate Prior Order, advising Appellant that she was subject to removal. Appellant argued to the Tenth Circuit that: (1) her underlying removal order was not lawful; and (2) her reentry into the United States after her previous removal was not illegal. On these bases she maintained that reinstatement of her previous removal order was precluded. Upon review of the DHS's determination and the applicable legal authority, the Tenth Circuit concluded Appellant failed to establish that DHS misconstrued the meaning of "reenters the United States illegally" in Sec. 1231 (a)(5): she was removed from the United States in 2005, and she admittedly reentered the country without the Attorney General's authorization shortly thereafter. Because she could not have entered the United States legally at that time, her reentry was illegal and she was therefore subject to reinstatement of her previous removal order. Accordingly, the Court denied Appellant's petition for review.

Mexican national Defendant-Appellant Nicolas Cobos-Chachas pled guilty to unlawfully reentering the United States after deportation. At sentencing, the district court varied downward from the advisory guidelines range and sentenced him to thirty-eight months' imprisonment, which was three months below the bottom of the advisory guideline range. Defendant challenged the length of his sentence as substantively unreasonable in light of the sentencing factors listed in the Guidelines. Upon review, the Tenth Circuit found that "Mr. Cobos-Chachas' own perception that the sentencing factors compel[ed] a more marked variance [did] not rebut the presumption that his below-guideline sentence [was] substantively reasonable." Accordingly, the Court affirmed Defendant's sentence.

Petitioner Margarito Escalera Luevano applied for an adjustment of status during his removal proceedings based on his eligibility for an immigrant visa. He also requested an indefinite continuance in anticipation of the receipt of a visa. The immigration judge (IJ) determined he was not then eligible for adjustment of status and denied the request for a continuance because the anticipated visa would not be available for several years. The Board of Immigration Appeals (BIA) affirmed. Petitioner argued on appeal to the Tenth Circuit that the IJ abused his discretion in denying the requested continuance. He also claimed that the removal proceedings against him should have been terminated because his Fourth Amendment rights were violated. Petitioner admitted to the facts underlying the charge of illegal entry following a stop in Yellowstone National Park by Immigration officials, but withdrew his concession of removability because he believed the section of the Immigration and Nationality Act permitting adjustment of status rendered him nonremovable. The IJ denied his request for adjustment of status because no visa number was available and then ordered removal. Upon review, the Tenth Circuit concluded that although the agency cases permit, and may even require, an IJ to continue proceedings in order to await mere processing of a properly filed visa petition with a current priority date, there was no agency or court precedent for requiring an IJ to grant an indefinite continuance so that a petitioner may remain in this country while awaiting eligibility for adjustment of status. Petitioner was not eligible for adjustment relief at the time of his removal proceedings: "[m]oreover, [Petitioner] was unlikely to be eligible within a reasonably proximate time." Accordingly, the Court denied Petitioner's petition for review and motion to stay removal.