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

Petitioner Edgar Tarango-Delgado appealed the Board of Immigration Appeals’ (“BIA”) denial of his two motions to reopen his removal proceedings. Tarango-Delgado, a Mexican citizen, came to the United States in 1977, when he was seven months old. He became a lawful permanent resident at age ten. And for almost four decades, he lived in the U.S. with his parents, siblings, wife, and children. In 2015, state police arrested Tarango-Delgado and charged him with aggravated animal cruelty, a felony. He pleaded guilty to that charge. But, before entering his plea, his counsel failed to advise him that pleading guilty would have deportation consequences because aggravated animal cruelty was a crime of moral turpitude. A few months after he pleaded guilty, the government commenced removal proceedings. Tarango-Delgado moved for post-conviction relief in state court, arguing he received ineffective assistance of counsel. This was ultimately denied, and Tarango-Delgado was removed in 2017. Almost a year after his removal, a Colorado state court ruled on Tarango-Delgado’s ineffective-assistance-of-counsel motion, concluding that Tarango-Delgado had not “knowingly and voluntarily” pleaded guilty to the aggravated-animal-cruelty charge, and vacated his conviction and reinstated the original aggravated-animal-cruelty charge. In January 2019, Tarango-Delgado filed his first motion to reopen his immigration proceedings before an IJ. The IJ denied Tarango-Delgado’s motion to reopen. In late February or early March 2019, a few days after the IJ denied Tarango-Delgado’s first motion to reopen, he reentered this country without authorization. And a few weeks later, after the Department of Homeland Security (“DHS”) learned about the illegal reentry, it reinstated Tarango-Delgado’s prior removal order. Tarango-Delgado applied for withholding of removal under the Convention Against Torture (“CAT”). An asylum officer found that Tarango-Delgado credibly feared returning to Mexico and referred his petition to an IJ. But the IJ denied his petition for CAT relief. The BIA affirmed. Tarango-Delgado pleaded guilty to a misdemeanor animal-cruelty charge, which by definition would no longer qualify as a crime of moral turpitude. Tarango-Delgado then filed a second motion to reopen his immigration proceedings. The government raised a new argument: Tarango-Delgado's motion could not be considered because he had illegally reentered the U.S. after being removed. Tarango-Delgado appeals the BIA’s denial of his two motions to reopen. Because the Tenth Circuit concluded that 8 U.S.C. 1231(a)(5) barred the reopening of his removal proceedings, the BIA’s denials were affirmed. View "Tarango-Delgado v. Garland" on Justia Law

Jenifer Miladis Alvarado-Diaz and Magdaly Suleydy Perez-Velasquez appealed the district court’s affirmance of their convictions for entering the United States in violation of 8 U.S.C. 1325(a)(1). Alvarado and Perez crossed the U.S.-Mexico border into New Mexico by walking around a fence, miles away from the nearest designated port of entry. Alvarado was stopped by a border patrol agent after she made it about 180 yards past the border, and a border patrol agent saw Perez just as she walked into the country. Each was detained. Alvarado and Perez admitted to the agents that they were nationals of El Salvador and Guatemala, respectively, and had no authorization to enter the country. They contended “enter” was a term of art that required more than a physical intrusion; it also required “freedom from official restraint” and “inspection or intentional evasion of inspection.” The district court affirmed the convictions because, even assuming freedom from official restraint was required for an “entry,” the Defendants were not under official restraint. The defendants argued they were under official restraint because they had been continuously surveilled, but the court noted that continuous surveillance alone did not equate to restraint. On appeal to the Tenth Circuit, defendants reiterated arguments made at the district court. The Tenth Circuit rejected these arguments and affirmed the district court's judgment. View "United States v. Perez-Velasquez" on Justia Law

Petitioner Tojiddin Berdiev faced immigration removal proceedings since 2007. After more than a decade of petitions, motions, and appeals, the Board of Immigration Appeals denied Berdiev’s untimely motion to reopen removal proceedings (Berdiev’s second motion), then denied Berdiev’s motion to reconsider. In each of its two orders, the Board held that: (1) Berdiev was not entitled to equitable tolling of his untimely motion to reopen; and (2) exercise of the Board’s sua sponte reopening authority was unwarranted. Berdiev argued to the Tenth Circuit that the Board abused its discretion in making the first determination and relied on an erroneous legal premise in making the second. On equitable tolling, the Court concluded the Board did not abuse its discretion. On the exercise of the Board’s sua sponte reopening authority, however, the Court concluded the Board at least partly relied on a legally erroneous rationale; the Court could not determine whether the Board would have reached the same outcome independently based solely on valid reasons. Accordingly, the Court granted Berdiev’s petitions for review, vacated the Board’s two orders solely as to the sua sponte reopening decision, and remanded to the Board to reconsider that decision. View "Berdiev v. Garland" on Justia Law

Petitioner Victor Zarate-Alvarez, a native and citizen of Mexico, sought review of a Board of Immigration Appeals (BIA) decision denying his application for cancellation of removal. Zarate pleaded guilty to knowing or reckless child abuse in violation of Colorado law. Several years later, the Department of Homeland Security initiated removal proceedings, charging him with removability under 8 U.S.C. 1182(a)(6)(A)(i) of the Immigration and Nationality Act (INA) because he was present without having been admitted or paroled. Zarate conceded removability and filed an application for cancellation of removal under 8 U.S.C. 1229b(b). After a hearing, an Immigration Judge (IJ) denied the application, concluding that Zarate was ineligible for cancellation under section 1229b(b)(l)(C) because his state child abuse conviction constituted “a crime of child abuse, child neglect, or child abandonment” within the meaning of 8 U.S.C. 1227(a)(2)(E)(i). The BIA agreed with the IJ’s determination and dismissed Zarate’s appeal. Challenging the Board's decisions, Zarate argued: (1) the BIA’s most recent interpretations of section 1227(a)(2)(E)(i) were not entitled to deference; and (2) his state conviction was not a categorical match to a “crime of child abuse” as defined by the Board. The Tenth Circuit rejected both arguments and affirmed the Board. View "Zarate-Alvarez v. Garland" on Justia Law

Petitioners Ana Orellana-Recinos and her son, Kevin Rosales-Orellana, natives and citizens of El Salvador, sought review of a Board of Immigration Appeals (BIA) order dismissing their appeal of an immigration judge's (IJ) dismissal of their applications for asylum. They contended they were persecuted because of their membership in a particular social group: namely, Kevin’s immediate family. Even assuming that Kevin’s immediate family qualified as a particular social group under the Immigration and Nationality Act, the Tenth Circuit Court of Appeals concluded the BIA properly found that Petitioners were not persecuted “on account of” their membership in that group. In addition, the Court rejected the government’s argument that the Court lacked jurisdiction to review Petitioners’ challenge to the BIA’s decision. View "Orellana-Recinos v. Barr" on Justia Law

Defendant-Appellant Abiel Perez-Perez pled guilty to being an alien in possession of a firearm. On appeal, he challenged the district court’s failure to advise him of two elements of that offense: (1) the alien was illegally or unlawfully present in the United States; and (2) the alien knew that he was illegally or unlawfully present. The government conceded that the omission of these elements constituted error that was now plain on appeal. The only dispute was whether Perez satisfied the third and fourth prongs of plain-error review. The Tenth Circuit concluded Perez could not satisfy the third prong because he could not show that the error affected his substantial rights. "Although Perez has a credible claim that, at the time of the offense, he did not know he was unlawfully present in the United States, he has failed to show a reasonable probability that he would not have pled guilty but for the district court’s error. This is because the context of Perez’s guilty plea makes clear that he pled guilty to avoid mandatory minimum sentences attached to charges the government dismissed in exchange for the guilty plea. Perez fails to show how the district court’s error impacted that choice, and he thus fails to satisfy the third plain-error prong." View "United States v. Perez-Perez" on Justia Law

Petitioner Daniel Awuku-Asare appealed a Board of Immigration Appeals (BIA) decision to affirmed his removal order. Awuku-Asare entered the country on a nonimmigrant F-1 visa and could lawfully remain in the United States so long as he complied with the conditions of his visa. Relevant here, maintaining an F-1 visa status requires maintaining a full course of study at an approved educational institution. But Awuku-Asare did not comply with this full-course-of-study requirement because he was incarcerated for approximately 13 months for a crime of which he was ultimately acquitted. In an issue of first impression for the Tenth Circuit, Awuku-Asare argued that “the failure to maintain status must be attributable to the nonimmigrant to render him [removable],” and that because of circumstances beyond his control caused the lapse in his status, he was not removable. The Tenth Circuit determined the plain meaning of the relevant statute did not support Awuku-Asare's interpretation, therefore his arguments were rejected and the BIA's decision affirmed. View "Awuku-Asare v. Garland" on Justia Law

Ethiopian native, petitioner Thewodros Wolie Birhanu petitioned the Tenth Circuit Court of Appeals for review of a final order of removal issued by the Board of Immigration Appeals (“BIA”). The BIA dismissed Birhanu’s appeal of the Immigration Judge's (“IJ”) decision finding him removable. The BIA and the IJ found: (1) Birhanu was removable as an alien convicted of two or more crimes involving moral turpitude (“CIMTs”) not arising out of a single scheme of criminal misconduct; (2) he was not entitled to asylum or withholding of removal because his convictions qualified as particularly serious crimes; and (3) he was not entitled to relief under the Convention Against Torture (“CAT”). The Tenth Circuit dismissed Birhanu's claims under Section 504 of the Rehabilitation Act as unexhausted, and denied the balance of his petition for review on the merits. View "Birhanu v. Wilkinson" on Justia Law

Ghanian native and citizen, petitioner Joachim Addo appealed when his application for asylum was denied by an immigration judge and the Board of Immigration Appeals. Petitioner was the son of the chief of the Challa tribe. For several years the Challa have been in a land dispute with another tribe, the Atwode. The Atwode tribe was larger than the Challa, but the Challa controlled more land in the Nkwanta district, and in the past they often leased land to the Atwode. Starting in 2005 the Atwode began violating the lease terms and customs. Petitioner’s father instructed the Challa to stop leasing land to the Atwode, and he took the Atwode to court over the land disputes, winning every case. The Atwode responded with violence against the Challa and vowed to eliminate Petitioner’s father and family. This led to several violent incidents perpetrated by the Atwode against Petitioner and other members of his family. Shortly after these attacks, Petitioner and his father agreed that, for his own safety, Petitioner would relinquish his position as heir-apparent to the Challa chiefdom and would move from Nkwanta to Accra, the capital of Ghana. But this did not stop the Atwode, and harassment continued. In January 2017 Petitioner entered the United States. He expressed a fear of returning to Ghana and was granted a credible-fear interview. An asylum officer determined that Petitioner was credible and referred his case to adjudication. At a hearing in June 2017 the IJ determined that Petitioner was removable. Petitioner indicated, however, that he wished to apply for asylum, so the IJ scheduled a hearing to consider the asylum claim. Petitioner filed an application for asylum, withholding of removal, and protection under the Convention Against Torture. In the briefs on his petition for review by the Tenth Circuit Court of Appeals, Petitioner challenged the denial of asylum and withholding of removal, arguing that substantial evidence did not support the BIA’s determination that he could successfully avoid future persecution by relocating within Ghana. The Court agreed with Petitioner that the decision on his ability to safely relocate was unsupported by substantial evidence. The petition was granted and the matter remanded to the BIA for further proceedings. View "Addo v. Barr" on Justia Law

Plaintiffs–Appellants were United States citizens or lawful permanent residents who worked as farm laborers. Defendants–Appellees Cervantes Agribusiness and Cervantes Enterprises, Inc. (collectively, Cervantes) were agricultural businesses owned and managed by members of the Cervantes family in southern New Mexico. Plaintiffs brought claims against Cervantes for breach of contract, civil conspiracy, and violations of the Migrant and Seasonal Agricultural Worker Protection Act (AWPA), based on Cervantes’s failure to employ them after a labor contractor, allegedly acting on Cervantes’s behalf, recruited them under the H-2A work-visa program of the United States Department of Labor (DOL). The district court granted summary judgment in favor of Cervantes on all claims. After review of the trial court record, the Tenth Circuit reversed the trial court’s ruling on the breach-of-contract and AWPA claims because the evidence, taken in the light most favorable to Plaintiffs, was sufficient to support a finding that the contractor was acting as Cervantes’s agent when it recruited them. But the Court affirmed summary judgment in favor of Cervantes on the conspiracy claim because of the lack of evidence of an agreement between Cervantes and the contractor to engage in unlawful acts. View "Alfaro-Huitron v. WKI Outsourcing Solutions" on Justia Law