Articles Posted in Immigration Law

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Defendant Ortiz-Lazaro pled guilty to illegal reentry after deportation in violation of 18 U.S.C. 1326(a)(1) and (b)(1), and he admitted that he violated the supervised release terms of his prior illegal reentry charge. He appealed his above-guidelines sentence for the supervised release violation as procedurally and substantively unreasonable. In looking at the detailed explanation the district court gave for its deviation from the guidelines, the Tenth Circuit concluded the sentence was reasonable and that the district court did not abuse its discretion. View "United States v. Ortiz-Lazaro" on Justia Law

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Defendant Ortiz-Lazaro pled guilty to illegal reentry after deportation in violation of 18 U.S.C. 1326(a)(1) and (b)(1), and he admitted that he violated the supervised release terms of his prior illegal reentry charge. He appealed his above-guidelines sentence for the supervised release violation as procedurally and substantively unreasonable. In looking at the detailed explanation the district court gave for its deviation from the guidelines, the Tenth Circuit concluded the sentence was reasonable and that the district court did not abuse its discretion. View "United States v. Ortiz-Lazaro" on Justia Law

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This appeal addressed whether immigration detainees housed in a private contract detention facility in Aurora, Colorado could bring claims as a class under: (1) 18 U.S.C. 1589, a provision of the Trafficking Victims Protection Act (the “TVPA”) that prohibits forced labor; and (2) Colorado unjust enrichment law. The GEO Group, Inc. (“GEO”) owned and operated the Aurora Facility under government contract. While there, Appellees rendered mandatory and voluntary services to GEO: cleaning their housing units’ common areas and performed various jobs through a voluntary work program, which paid them $1 a day. The district court certified two separate classes: (1) all detainees housed at the Aurora Facility in the past ten years (the “TVPA class”); and (2) all detainees who participated in the Aurora Facility’s voluntary work program in the past three years (the “unjust enrichment class”). On interlocutory appeal, GEO argues that the district court abused its discretion in certifying each class under Rule 23(b)(3) of the Federal Rules of Civil Procedure. It primarily contended Appellees’ TVPA and Colorado unjust enrichment claims both required predominantly individualized determinations, making class treatment inappropriate. Finding no reversible error, the Tenth Circuit affirmed class certification. View "Menocal v. The GEO Group" on Justia Law

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The Tenth Circuit expedited consideration of this bail appeal to consider Mario Ailon-Ailon’s argument that the government has misinterpreted the word “flee” as it appeared in 18 U.S.C. 3142(f)(2), resulting in his illegal pre-trial detention. He argued that involuntary removal by the Bureau of Immigration and Customs Enforcement (“ICE”) did not constitute flight of the sort that would justify detention. On initial consideration, a magistrate judge agreed and determined that Ailon-Ailon should not have been detained before trial. On review of the magistrate judge, the district court reversed, ordering that he be detained. The Tenth Circuit concluded that the plain meaning of “flee” refers to a volitional act rather than involuntary removal, and that the structure of the Bail Reform Act supported this plain-text reading. View "United States v. Ailon-Ailon" on Justia Law

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The question presented in this appeal for the Tenth Circuit's review was whether Petitioner Juan Lucio-Rayos’s municipal theft conviction qualified as a crime involving moral turpitude (“CIMT”), which would have made him ineligible for cancellation of removal. Lucio-Rayos was convicted under a divisible municipal code provision that set forth several different theft offenses, some of which qualified as CIMTs and some of which did not. Applying a modified categorical approach, the Tenth Circuit determined it was not possible to tell which theft offense was the basis of Lucio-Rayos’s conviction. The Court held it was Lucio-Rayos’s burden to establish his eligibility for cancellation of removal, and because the record was inconclusive to this end, the Court upheld the Board of Immigration Appeals (“BIA”)’s determination that Lucio-Rayos did not show that he was eligible for cancellation of removal. Furthermore, the immigration judge (“IJ”) did not deprive Lucio-Rayos of due process by refusing to recuse from hearing his case. View "Lucio-Rayos v. Sessions" on Justia Law

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The question presented in this appeal for the Tenth Circuit's review was whether Petitioner Juan Lucio-Rayos’s municipal theft conviction qualified as a crime involving moral turpitude (“CIMT”), which would have made him ineligible for cancellation of removal. Lucio-Rayos was convicted under a divisible municipal code provision that set forth several different theft offenses, some of which qualified as CIMTs and some of which did not. Applying a modified categorical approach, the Tenth Circuit determined it was not possible to tell which theft offense was the basis of Lucio-Rayos’s conviction. The Court held it was Lucio-Rayos’s burden to establish his eligibility for cancellation of removal, and because the record was inconclusive to this end, the Court upheld the Board of Immigration Appeals (“BIA”)’s determination that Lucio-Rayos did not show that he was eligible for cancellation of removal. Furthermore, the immigration judge (“IJ”) did not deprive Lucio-Rayos of due process by refusing to recuse from hearing his case. View "Lucio-Rayos v. Sessions" on Justia Law

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Petitioner Liying Qiu, a native and citizen of the People’s Republic of China, sought asylum and withholding of removal based on her status as a Christian who did not agree with China’s state-sanctioned version of Christianity, and as a woman who violated China’s one-child policy by having three children. Her application was denied by the immigration court in 2011, and the Board of Immigration Appeals affirmed that decision in March 2013. In December 2015, Petitioner filed a motion to reopen based on the significantly increased persecution of Christians in China in 2014 and 2015. The BIA denied her motion to reopen as untimely. Amongst the evidence submitted in support of her application, Petitioner submitted a portion of the 2015 annual report issued by the U.S. Commission on International Religious Freedom, an independent, bipartisan U.S. government entity that monitored religious freedom violations globally and made policy recommendations to the President, the Secretary of State, and Congress. The BIA held that Petitioner had not submitted sufficient evidence to show a change in country conditions, and thus that her motion to reopen was untimely under 8 U.S.C. 1229a(c)(7)(C). The Tenth Circuit found the BIA abused its discretion in denying Petitioner's application: "surely Congress did not intend for 8 U.S.C. 1229a(c)(7)(C) to protect only petitioners who file frivolous asylum applications under no threat of persecution, while extending no help to petitioners who seek reopening after an existing pattern of persecution becomes dramatically worse. The BIA’s reasoning would lead to an absurd result, one we cannot condone." The Court held that a significant increase in the level of persecution constituted a material change in country conditions for purposes of 8 U.S.C. 1229a(c)(7)(C) and that the BIA abuses its discretion when it fails to assess and consider a petitioner’s evidence that the persecution of others in his protected category has substantially worsened since the initial application. The Court concluded the BIA provided no rational, factually supported reason for denying Petitioner’s motion to reopen, and accordingly remanded this case back to the BIA for further consideration. View "Qiu v. Sessions" on Justia Law

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R-S-C illegally reentered the United States after having been removed and her prior removal order was reinstated, thus under the Attorney General’s interpretation of the Immigration and Nationality Act (INA), she could not apply for asylum. She challenged the Attorney General’s regulations as inconsistent with the INA’s asylum guarantee. The Tenth Circuit concluded Congress had not clearly expressed whether aliens governed by the reinstatement provision could apply for asylum. However, the Attorney General’s regulations were consistent with a reasonable interpretation of the statutory scheme, so they are entitled to administrative deference. Accordingly, the Court denied the petition for review. View "R-S-C v. Sessions" on Justia Law

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Francisco Flores-Molina was an undocumented alien subject to removal from the United States. An immigration judge determined he was ineligible for cancellation of removal because he has been convicted of a “crime involving moral turpitude.” The Board of Immigration Appeals agreed and dismissed Flores-Molina’s appeal. Flores-Molina then appealed to the Tenth Circuit, arguing the Board of Immigration Appeals erred in finding that his crime of conviction under Denver Municipal Code 38-40 (giving false information to a city official during an investigation), was a crime involving moral turpitude. The Tenth Circuit agreed, granted the petition and remanded for further proceedings. View "Flores-Molina v. Sessions" on Justia Law

Posted in: Immigration Law

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Split Rail Fence Company, Inc., a Colorado business that sold and installed fencing materials, petitions for review of an administrative law judge’s (“ALJ”) summary decision. The decision imposed civil penalties on Split Rail for violating the Immigration Reform and Control Act (“IRCA”) by: (1) “hir[ing] for employment in the United States an individual without complying with the requirements of subsection (b)” of 8 U.S.C. 1324a in violation of section 1324a(a)(1)(B) (Count One); and (2) “continu[ing] to employ [an] alien in the United States knowing the alien is (or has become) an unauthorized alien” in violation of section 1324a(a)(2) (Count Two). ICE special agents conducted an inspection at Split Rail in 2009 and 2011 to determine its compliance with the IRCA. During the inspection, it examined Split Rail’s I-9 forms. ICE served Split Rail with an Notice of Intent to Fine (NIF), commencing this administrative proceeding against Split Rail. Split Rail management stated it “had absolutely no reason to believe either now or at any time in the past that any of [nine individuals identified as ‘current employees’ in the 2011 Notice of Suspect Documents] are anything but law abiding residents of the United States of America.” Split Rail noted many of them were long-term employees who, along with their families, had been involved in company activities, parties, and picnics. He further stated they each appeared authorized to work in the United States because they had bank accounts, cars, homes, and mortgages. He also noted many had valid driver’s licenses and some had filed successful workers’ compensation claims. He did not, however, state that Split Rail had taken any action regarding the employees’ I-9 forms. In 2012, ICE filed its complaint against Split Rail. The ALJ granted ICE summary decision on both counts. Split Rail timely filed its petition for review, but finding no reversible error as to the ALJ's decision, the Tenth Circuit denied Split Rail’s petition. View "Split Rail Fence Co. v. United States" on Justia Law