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

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.

Petitioners Mihiretab Teshome Jobira and Beza Teshome Jobira petitioned the Tenth Circuit to review final orders of removal. The Jobiras are natives and citizens of Ethiopia. They claimed to be brother and sister. In September 2006, the Jobiras entered the United States on visitor visas. On the date their visas expired, they applied for asylum and protection under the United Nations Convention Against Torture (CAT). According to their applications, the Jobiras were arrested on several occasions in 2005 as a result of their activities organizing fellow high school students in support of the "Coalition for Unity and Democracy" (CUD). They alleged that during their detentions, they were interrogated, held in squalid conditions, and severely beaten or tortured. After hearing the Jobiras’ testimony, an immigration judge issued an oral decision denying relief and granting voluntary departure. The judge concluded the Jobiras’ story had not proven credible for a number of reasons. The Jobiras appealed the judge's denial to the Board of Immigration Appeals (BIA). A single member of the BIA dismissed their appeal. The Tenth Circuit concluded that the Jobiras failed to meet the persecution standards for asylum, and necessarily failed to satisfy the higher standards required for restriction on removal under the immigration laws or relief under the CAT. Accordingly, the Court affirmed the BIA's and immigration judge's decisions.

Israeli citizens Arturas Bakanovas, Edita Bakanovas, and their daughter, Karolina Bakanovas, sought review of an order of the Board of Immigration Appeals (BIA) that denied their motion to reopen. In 1990 Arturas and Edita Bakanovas emigrated from Lithuania to Israel and became Israeli citizens. In 1991 they entered the United States on visitor visas and, after they overstayed their visas and the Immigration and Nationalization Service issued orders to show cause why they should not be deported, Arturas applied for asylum. The asylum application stated that Arturas had suffered persecution in Israel because of his Catholic faith and Lithuanian origin, that Edita had suffered persecution in Lithuania because of her Jewish faith, and that they both suffered persecution in Israel because of their interfaith marriage. In 1994 an immigration judge denied the Bakanovases asylum and withholding of deportation but granted their request for voluntary departure, with an alternate order of deportation to Israel or Lithuania if they remained in the United States after the voluntary-departure deadline. In October 2000 the BIA affirmed the order, and the Tenth Circuit affirmed that decision. The Bakanovases did not leave the United States, and in January 2007 they were arrested on immigration charges and released on bond. They then met with their current attorney, who informed them in April 2007 of the availability of relief under the Convention Against Torture. In March 2010, almost three years later, they filed a motion to reopen with the BIA, which the BIA denied. They petitioned the Tenth Circuit to review that decision. Because the denial of a motion to reopen is "a final, separately appealable order," the Tenth Circuit lacked jurisdiction to review the case. The Court dismissed Petitioners' appeal.

Ruben Flores-Olmos pleaded guilty to one count of being an alien in the United States after deportation but reserved his right to appeal the district court's denial of his motion to suppress evidence acquired during a traffic stop. On appeal, Flores-Olmos argued that he was the victim of racial profiling. He further contended that the Oklahoma seat belt law is ambiguous and that the doctrine of lenity should absolve him. Finding no error in the district court's refusal to suppress evidence of Flores-Olmos’s illegal presence in the United States, the Tenth Circuit affirmed the district court's decision.

Minta del Carmen Rivera Barrientos suffered an attack at the hands of gang members in her native country of El Salvador. She escaped to the United States and sought asylum. She contended she was eligible for asylum under 8 U.S.C. 1158 because she faced past persecution on account of her political opinion (opposition to gangs) and her membership in a particular social group (young females) who have resisted gang recruitment. The BIA argued that the attack was not on account of her political opinion and that she was not a member of a cognizable social group. Because the Tenth Circuit concluded the BIA’s interpretation of the applicable statute was not unreasonable, the Court concluded the agency did not abuse its discretion in finding that Rivera-Barrientos was ineligible for asylum.

Defendant Juan Jose Montoya-Ruiz appeals his 46-month sentence for unlawful reentry of an alien who had previously been deported after commission of an aggravated felony. On appeal, Defendant challenged the substantive reasonableness of his sentence. Defendant, a native and citizen of Mexico, was sentenced in California on November 14, 1994, for possession of a controlled substance for sale (an aggravated felony) and was thereafter deported. On April 2, 2010, he was found within the State of Colorado and indicted for illegally reentering the United States. His presentence investigation report calculated that under the United States Sentencing Guidelines, the advisory range for his sentence was 46-57 months. The probation office recommended a 50-month sentence. Before the sentencing hearing, Defendant moved for a downward variance. The district court imposed a sentence of 46 months' incarceration. Finding no abuse of discretion by the district court, the Tenth Circuit affirmed Defendant's sentence.

Defendant Doroteo Rendon-Martinez was convicted of possession of a firearm and ammunition by a felon and of illegal reentry by an alien after being deported. He appealed his convictions and 180-month concurrent sentences to the Tenth Circuit. Defendant, a native and citizen of Mexico, was removed from the United States in December 2009. By February 9, 2010, however, he had returned and was living in a house in Oklahoma City. On that day, he thought three men were trying to break into the house. Knowing that a .38 Special revolver and ammunition were on the premises, he grabbed the gun and fired warning shots into the yard. Someone called the police, and when officers arrived they saw Defendant holding the revolver. Upon review, the Tenth Circuit found "there was no error, much less plain error" in the district court's decision in Defendant's case. Accordingly, the Court affirmed Defendant's conviction and sentence.