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

Petitioner Budiyanto Juned, a native and citizen of Indonesia, appealed a Board of Immigration Appeals' (BIA) decision that denied his applications for asylum and restriction on removal under the Convention Against Torture (CAT). Petitioner came to the United States on a visitor's visa in 1994 and remained after the visa expired. Petitioner petitioned for asylum and restriction on removal on the basis of his political opinion. The BIA affirmed an immigration judge's (IJ) determination that Petitioner was not eligible for asylum because his application was not timely filed and that he did not demonstrate changed or extraordinary circumstances to except himself from the filing deadline. Furthermore, the BIA determined that Petitioner's proffered incidents of mistreatment in his home country did not amount to persecution, nor the likelihood he would be persecuted in the future. Upon review of the BIA record, the Tenth Circuit dismissed Petitioner's asylum claim due to the court's lack of jurisdiction. The Court affirmed the BIA's determination as to all other aspects of Petitioner's claim.

Petitioner Manuel Damaso-Mendoza sought review of a Board of Immigration Appeals' (BIA) decision that found he was removable despite being a lawful permanent resident of the United States. The BIA determined that Petitioner's Colorado felony conviction for menacing was a crime of violence as defined by federal law, and therefore made him removable. Upon review of the applicable legal authority and the BIA's record on appeal, the Tenth Circuit was "persuaded" by the BIA's reasoning that Petitioner's conviction in Colorado on menacing was a crime of violence. Petitioner therefore committed an aggravated felony and was removable from the United States. The Court denied Petitioner's petition for review and dismissed his appeal.

Petitioner Julio Pizano-Zeferino sought review of a Board of Immigration Appeals' order that he be removed from the United States. Petitioner was a Mexican native who entered the United States illegally without being admitted or paroled. Petitioner conceded his removability. Petitioner applied for cancellation of removal, citing exceptional and extremely unusual hardship to his American-citizen children if he were removed to Mexico. The Immigration Judge found that Petitioner did not establish that he had ten years of continuous physical presence in the United State and that he failed to show exceptional and extremely unusual hardship to the children. Instead of seeking review of the BIA's order by the Tenth Circuit, Petitioner obtained new counsel and filed a "motion to reconsider" with the BIA alleging changed circumstances since the IJ hearing. The BIA treated the motion as a motion to reopen its prior decision, and denied it because the evidence either was not previously unavailable or did not establish a prima facie eligibility for cancellation of removal. Upon review of the BIA record, the Tenth Circuit found that Petitioner failed to present any issues for the Court's review. The Court concluded that it did not have jurisdiction to review the matter further and dismissed his appeal.

Defendant Daniel Reyes-Alfonso to one count of illegal reentry after deportation in violation of federal law. Using the 2009 Sentencing Guidelines, the district court calculated an advisory prison range of forty-six to fifty-seven months. Then the court imposed a forty-six month term which represented the bottom of that range. Defendant appealed, arguing that his prior conviction in Colorado for "sexual contact-no consent" was not a forcible sex offense which could be used to enhance the court's sentence. Upon review of the trial court record and the applicable legal authority, the Tenth Circuit concluded that the district court did not abuse its discretion by imposing the forty-six month sentence. The Court held the lower court properly concluded that the Colorado conviction was a forcible sex offense under the sentencing guidelines. Accordingly, the Court affirmed the lower court's decision and Defendant's sentence.

Defendant Ramon Vasquez-Alcarez pled guilty to illegally reentering the United States after he was deported for an aggravated felony conviction. He was sentenced to 27 months' imprisonment, which fell at the low end of the Sentencing Guidelines range. The sentence reflected an enhancement for Defendant's 1995 cocaine trafficking conviction. On appeal, Defendant argued that the district court placed too much weight on the 1995 conviction because it was stale. Therefore, Defendant challenged his sentence as substantively unreasonable. After this appeal was filed, the Sentencing Commission proposed an amendment to the Sentencing Guidelines that, had it been in effect at the time of Defendant's sentence, would have resulted in a lower level enhancement. Defendant contended that the proposed amendment helped his argument that the sentence he received was unreasonable. Upon review of the amendment and the district court's record, the Tenth Circuit was not persuaded by Defendant's argument. The Court found that the district court did not err or abuse its discretion by handing Defendant a 27-month sentence. Accordingly, the Court affirmed Defendant's sentence.

Defendant Crescencio Ochoa-Tovali pled guilty to reentering the United States as a previously removed alien in violation of federal law. He was sentenced to 57 months' imprisonment. This sentence reflected Defendant's criminal history that included a 1995 robbery conviction and a 1993 probation revocation. On appeal, Defendant argued that the district court weighed too heavily his 1993 and 1995 offenses and weighed too lightly his reason for reentering the United States. Defendant challenged his sentence as substantively unreasonable. Upon careful consideration of the lower court's record, as well as Defendant's criminal history, the Tenth Circuit found the sentence was not substantively unreasonable. The Court affirmed Defendant's sentence.

Defendant Alvaro Madriz-Castillo appealed his 57-month sentence for unlawful reentry as a previously deported alien. He contended that the sentence was procedurally and substantively unreasonable. Upon review, the Tenth Circuit found that the district court adequately explained Defendant's sentence, and he did not overcome the presumption that his sentence was not unreasonably long. Accordingly, the Court affirmed Defendant's sentence.

Defendant Jesus Balbin-Mesa appealed his sentence after he pled guilty to a charge of reentering the United States after having been deported. In March 2010, Defendant filed a motion to ask for a downward adjustment from the applicable sentencing guideline range. The district court considered it "sufficient, but not greater than necessary" to sentence Defendant to twenty-eight months' imprisonment. The court ordered a two-year period of supervised release, and added a special condition that Defendant not reenter the United States again without prior legal authority. The court warned Defendant that if he violated the special condition, he would be "immediately be placed in prison and likely have to serve a longer sentence." At the end of the hearing, the court asked whether Defendant had anything else to present to the court. Defendant did not object then to the sentence, but he appealed it to the Tenth Circuit. The Tenth Circuit noted that Defendant provided his own assessment of the statutory sentencing factors "making an oblique argument (unsupported by case authority) that the district court should have varied more than it did." However, none of Defendant's arguments showed "reversible error." Accordingly, the Court affirmed the lower court's sentence.

Petitioner Alfonso Jiminez-Guzman sought review of a removal order issued by the Board of Immigration Appeals (BIA). On appeal, he argued that the agency erred in denying his request for a continuance and by applying an incorrect legal standard to the evidence of his controlled-substance conviction. Petitioner was a lawful permanent resident to the United States. In 2009, the Department of Homeland Security issued a notice-to-appear to Petitioner, charging that he was subject for removal due to a 2002 Colorado conviction for heroin possession. The Immigration Judge granted Petitioner two continuances so that he could obtain counsel. Once he obtained counsel, Petitioner unsuccessfully petitioned to cancel his removal. Upon review of Defendant's conviction record and the BIA's proceedings, the Tenth Circuit found "clear, unequivocal, and convincing evidence" to support Defendant's removal. The Court found BIA committed no error in dismissing Petitioner's appeal.

Petitioner Vickers Waugh appealed a decision of the Board of Immigration Appeals (BIA) that ordered him removed from the United States. In August 2009, Petitioner pled guilty in Utah state court to one count of felonious sexual contact with a minor. Following his conviction, the government instituted removal proceedings. The immigration judge (IJ) found petitioner removable on two grounds: for sexual abuse of a minor and for child abuse. While Petitioner's proceedings were pending, the Supreme Court issued its opinion in "Padilla v. Kentucky," which held that a non-citizen defendant had a Sixth Amendment right to be advised of the risk of removal resulting from a guilty plea. Relying on that case, Petitioner unsuccessfully moved to terminate his removal proceedings. On appeal to the Tenth Circuit, Petitioner challenged the IJ and BIA's refusal to terminate the removal proceedings against him, arguing that his constitutional rights had been violated when no one advised him of the potential of removal when he pled guilty to the state felony charges. The Tenth Circuit found that "Petitioner attempt[ed] to frame his argument as a denial of due process . . . [i]t appears Petitioner's true objection, however, is to the way the IJ and BIA exercised their discretion. . . . This challenge raise[d] neither a constitutional nor a legal issue." The Court found it did not have jurisdiction to review his petition, and declined further review.