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

Articles Posted in Immigration Law
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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

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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

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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

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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

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Eseos Igiebor, a citizen and native of Nigeria, entered the United States as a visitor in 1998. He became a lawful permanent resident (“LPR”) in 2004. In 2014, he pleaded guilty to: (1) aggravated identity theft; and (2) conspiracy to commit wire fraud, mail fraud, and bank fraud. He was sentenced to ninety-six months’ imprisonment and ordered to pay restitution. The Department of Homeland Security (“DHS”) initiated removal proceedings against Igiebor in 2018. Igiebor conceded removability, but sought deferral of removal pursuant to the Convention Against Torture (“CAT”). He asserted that due to his status as a homosexual, he would be tortured if removed to Nigeria. An immigration judge (“IJ”) concluded Igiebor’s testimony was not credible and found Igiebor failed to show it was more likely than not he would be tortured if returned to Nigeria. The Bureau of Immigration Appeals (“BIA”) determined the IJ did not commit clear error in finding Igiebor not credible and, given that adverse credibility determination, the IJ correctly found Igiebor did not carry his burden of proving it was more likely than not he would be tortured if returned to Nigeria. Igiebor petitioned the Tenth Circuit for review, challenging several aspects of the BIA’s decision. After review, the Tenth Circuit concluded Igiebor failed to identify any legal or factual error on the part of the BIA. Thus, the court denied Igiebor’s petition for review. View "Igiebor v. Barr" on Justia Law

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Deivy Romero-Lopez was convicted of illegally reentering the United States after being removed. The crime of illegal reentry begins when a noncitizen returns after removal and continues until he or she is “found” in the United States. The issue this case presented was not that Romero-Lopez was found in the U.S. after removal, but when he was found. The timing matters for his sentence because the Sentencing Commission dramatically increased the guideline ranges for individuals convicted of illegal reentry. The "starting point" for a sentence was the applicable starting guideline range. To determine that range, the district court needed to decide which annual version of the guidelines to use because the Sentencing commission changed the applicable provision in November 2016; the guideline ranges for illegal reentry sharply increased in November 2016. The new version of the guidelines would have applied only if Romero-Lopez's offense ended on or after the date of the change. Focusing on this increase, the parties disagreed over whether Romero-Lopez had been “found” before the change went into effect. The district court concluded that he had been found after the change, triggering the increased guideline range. Finding no reversible error in that conclusion, the Tenth Circuit affirmed. View "United States v. Romero-Lopez" on Justia Law

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The issue this case presented for the Tenth Circuit's review centered on whether a father's adopted child could qualify as his "legitimate" child for the purposes of section 1010(b)(1)(C) of the Immigration and Nationality Act when the child was not his biological child. Mr. Schreiber and his wife were U.S. citizens living in Kansas. In 2012, Mrs. Schreiber's niece moved from her native South Korea to Kansas to live with the Schriebers and attend high school. In 2014, the Schreibers adopted the niece under Kansas law with the consent of the child's parents. Kansas issued the child a new birth certificate listing the Schreibers as her parents. In 2015, Mr. Schreiber filed a petition to have his adopted child classified as his "child" for the purposes of the Act. The Board of Immigration Appeals determined legitimization only applied to a parent's biological children. The Tenth Circuit concluded the BIA correctly interpreted the Act's plain meaning, and thus, did not err in ruling that a parent's non-biological child could not be his "legitimized" child within the meaning of the Act. Furthermore, the Court concluded the district court properly declined to review Mr. Schreiber's "late-blooming" gender-discrimination challenge to the BIA's final agency action. View "Schreiber v. Cuccinelli" on Justia Law

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Reniery Adalberto Galeano-Romero sought review of a Board of Immigration Appeals decision that denied both his application for cancellation of removal under 8 U.S.C.1229b(b)(1) and his motion to remand and reopen his case to raise a Convention Against Torture (CAT) claim. The Board acknowledged his removal would result in hardship to his citizen spouse but concluded that the hardship would not be “exceptional and extremely unusual,” leaving him ineligible for cancellation of removal. Furthermore, the Board denied his motion to remand to present his CAT claim to an Immigration Judge (IJ) after finding Galeano-Romero had referenced no previously unavailable and material evidence, a prerequisite to any such motion to reopen. Upon review, the Tenth Circuit Court of Appeals determined it lacked jurisdiction to consider Galeano-Romero's challenge to the Board's discretionary hardship decision, so that portion of his petition was dismissed. With regard to Galeano-Romero's request for remand, the Court found the Board did not abuse its discretion in concluding how he could proffer material evidence that was not previously available or could have been discovered at the original hearing. View "Galeano-Romero v. Barr" on Justia Law

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Petitioner Everett Johnson, a citizen of the Bahamas, became a United States permanent resident in 1977. But in 2016, he pleaded guilty to possessing a schedule II controlled substance in violation of Colorado law. Soon after, the Department of Homeland Security (DHS) charged Johnson as removable from the United States based on the state drug conviction. The Board of Immigration Appeals (BIA) then ordered Johnson’s removal from the United States back to the Bahamas. He appealed, challenging that the state drug conviction subjected him to deportation from the United States. The Tenth Circuit determined Colorado Revised Statute section 18-18-403.5(1), (2)(a) was overbroad and indivisible as to the identity of a particular controlled substance. Therefore, Johnson’s conviction could not subject him to removal from the United States. The Court therefore granted Johnson’s petition for review, vacated the BIA’s order, and remanded to the BIA for further proceedings. View "Johnson v. Barr" on Justia Law

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This appeal involved the relationship between the detention and release provisions of two statutes: the Bail Reform Act (BRA), 18 U.S.C. sections 3141-3156, and the Immigration and Nationality Act (INA), 8 U.S.C. sections 1101-1537. The district court ordered Jose Luis Barrera-Landa released pending trial subject to the conditions the magistrate judge set in an earlier order. Barrera did not appeal that portion of the district court’s release order. As part of its order granting pretrial release, the district court denied Barrera’s request to enjoin the United States Immigration Customs and Enforcement (ICE) from detaining or deporting him during the pending criminal proceedings. Barrera appealed that portion of the district court’s release order. Barrera raised two new arguments on appeal: (1) 18 U.S.C. 3142(c) authorized a district court to prohibit the United States from deporting a defendant to assure his appearance in court; and (2) the Tenth Circuit should recognize the courts’ inherent supervisory authority to enjoin the United States from arresting or deporting Barrera while the criminal case is pending. Furthermore, Barrera argued the government had to choose to either proceed with immigration enforcement or his criminal prosecution, but could not do both. He asserted that if the government chose to prosecute, it had to must submit to the detention rules that governed criminal prosecutions and ICE could not detain or remove him. The district court denied Barrera’s request to enjoin ICE, explaining that every circuit that has addressed the issue has concluded that ICE may fulfill its statutory duties under the INA to detain an illegal alien regardless of a release determination under the BRA. The Tenth Circuit found Barrera forfeited his first two arguments by failing to raise them at the district court. The Court concluded the BRA and the INA "are capable of co-existing in the circumstances presented here." It therefore affirmed the district court's release order. View "United States v. Barrera-Landa" on Justia Law