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

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

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

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

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

An Immigration Judge with the Board of Immigration Appeals moved sua sponte to reopen Juvenal Reyes-Vargas' removal proceedings. The Board ruled that under 8 C.F.R. 1003.23(b)(1) the Board ruled that this regulation removed the IJ’s jurisdiction to reopen an alien’s removal proceedings after the alien has departed the United States (the regulation’s “post-departure bar”). The Tenth Circuit reviewed the Board's interpretation of its regulation using the framework announced in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), which clarified when and how courts defer to an agency interpreting its own regulations. Under that case, the Tenth Circuit determined it could defer to the Board’s interpretation only if the Court concluded, after rigorously applying all interpretative tools, that the regulation presented a genuine ambiguity and that the agency’s reading was reasonable and entitled to controlling weight. Applying this framework here, the Tenth Circuit concluded the regulation was not genuinely ambiguous on the issue in dispute: whether the post-departure bar eliminated the IJ’s jurisdiction to move sua sponte to reopen removal proceedings. In fact, the regulation’s plain language conclusively answered the question: the post-departure bar applies to a party’s “motion to reopen,” not to the IJ’s own sua sponte authority to reopen removal proceedings. So the Court did not defer, and granted Reyes-Vargas’s petition for review, vacated the Board’s decision, and remanded for further proceedings. On remand, the Board had to review the IJ’s conclusory decision that Reyes-Vargas had not shown “exceptional circumstances” as required before an IJ can move sua sponte to reopen removal proceedings. View "Reyes-Vargas v. Barr" on Justia Law

Jose Angel Banuelos-Galviz (Banuelos) entered the United States in 2006. Roughly three years later, he was served with a document labeled “Notice to Appear.” By statute, a notice to appear must include the time of the removal hearing. But Banuelos’s document did not tell him the date or time of the hearing, so the immigration court later sent him a notice of hearing with this information. Banuelos then sought asylum, withholding of removal, and protection under the Convention Against Torture. The immigration judge rejected each request, and Banuelos appealed to the Board of Immigration Appeals. While the administrative appeal was pending, the Supreme Court decided Pereira v. Sessions, which held that the stop-time rule was not triggered by a notice to appear that omitted the time of the removal hearing. Because Banuelos’s notice to appear lacked both the date and time, he moved for a remand so that the immigration judge could consider his request for cancellation of removal. To qualify for cancellation of removal, Banuelos needed to show continuous presence in the United States for at least ten years. His ability to satisfy this requirement turned on whether the combination of the deficient notice to appear and notice of hearing had triggered the "stop-time rule." If the stop-time rule had been triggered, Banuelos would have had only about three years of continuous presence. But if the stop-time rule had not been triggered, Banuelos’s continuous presence would have exceeded the ten-year minimum. The Board held that the stop-time rule had been triggered because the combination of the two documents—the incomplete notice to appear and the notice of hearing with the previously omitted information—was the equivalent of a complete notice to appear. Given this application of the rule, the Board found that Banuelos’s period of continuous presence had been too short to qualify for cancellation of removal. So the Board denied his motion to remand. Given the unambiguous language of the pertinent statutes, the Tenth Circuit determined the stop-time rule was not triggered by the combination of an incomplete notice to appear and a notice of hearing. The Court thus granted the petition for review and remanded to the Board for further proceedings. View "Banuelos-Galviz v. Barr" on Justia Law

Jose Lira-Ramirez was indicted on a charge of illegally reentering the United States, an element of which was the existence of a prior removal order. Though Lira-Ramirez had been removed in earlier proceedings, he moved to dismiss the indictment, arguing that the immigration judge lacked jurisdiction over the earlier proceedings because the notice to appear was defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018). The district court denied the motion to dismiss the indictment, and Lira-Ramirez appealed. After review, the Tenth Circuit affirmed, concluding that precedents foreclosed Lira-Ramirez’s jurisdictional challenge: “[T]wo precedential opinions that [the time and date] omission does not create a jurisdictional defect.” The Court thus affirmed denial of Lira-Ramirez’s motion. View "United States v. Lira-Ramirez" on Justia Law

Defendant Rodolfo Gonzalez-Fierro, a Mexican citizen, challenged his conviction for unlawfully re-entering the United States after a prior removal. That conviction was based in part on Gonzalez-Fierro’s prior expedited removal from the United States in 2009. Due process required that, before the United States can use a defendant’s prior removal to prove a 8 U.S.C. 1326(a) charge, “there must be some meaningful review” of the prior administrative removal proceeding. In light of that, Congress provided a mechanism in section 1326(d), for a defendant charged with a section 1326(a) offense to challenge the fundamental fairness of his prior unreviewed removal. But, pursuant to 8 U.S.C. 1225(b)(1)(D), the section 1326(d) mechanism applied only to prior formal removal orders, and not to prior expedited removal orders like Gonzalez-Fierro’s. "Expedited removals apply to undocumented aliens apprehended at or near the border soon after unlawfully entering the United States. Different from formal removals, expedited removals are streamlined - generally there is no hearing, no administrative appeal, and no judicial review before an expedited removal order is executed." Applying the Supreme Court’s reasoning in United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the Tenth Circuit concluded section 1225(b)(1)(D) was unconstitutional because it deprives a defendant like Gonzalez-Fierro of due process. Without section 1225(b)(1)(D), the Court reviewed Gonzalez-Fierro's 2009 expedited removal order, and concluded he failed to establish that removal was fundamentally unfair. On that basis, the Court affirmed Gonzalez-Fierro's section 1326(a) conviction. View "United States v. Gonzalez-Fierro" on Justia Law

Petitioner Alonso Martinez-Perez sought review of a final Board of Immigration Appeals (BIA) order that dismissed his appeal, holding that neither the BIA nor the Immigration Court had jurisdiction to grant Petitioner’s application for cancellation of removal. Petitioner was a native and citizen of Mexico. He entered the United States in 2001, without being inspected and admitted or paroled. On April 9, 2009, the Department of Homeland Security (DHS) charged him as removable from the United States pursuant to the Immigration and Nationality Act (INA) as an alien present in the United States without being admitted or paroled. Immigration officials served Petitioner with a notice to appear, which did not include a date and time for his hearing. One week later, Petitioner received notice of the date and time of his hearing in a separate document. Petitioner, through counsel, admitted the allegations contained in the notice to appear and conceded the charge of removability. The Immigration Judge found Petitioner removable. The Tenth Circuit found the Supreme Court held that a notice to appear that omits the removal proceeding’s time or place does not stop the alien’s accrual of continuous presence in the United States for purposes of cancellation of removal. The requirements of a notice to appear were claim-processing rules; the Court thus concluded the Immigration Court had authority to adjudicate issues pertaining to Petitioner’s removal even though Petitioner’s notice to appear lacked time-and-date information. With respect to issues raised regarding the BIA’s or Immigration Judge’s jurisdiction to grant Petitioner’s application in the absence of establishing a qualifying relative at the time of hearing: the Tenth Circuit concluded that for the BIA to conclude that neither it nor the Immigration Court had jurisdiction to grant Petitioner’s application was error. Moreover, before the BIA, Petitioner alleged and described what he contended was an improper delay on the part of the Immigration Court. Given this case’s procedural history, which is undisputed, the Tenth Circuit concluded it was within the BIA’s jurisdiction to interpret the applicable statutes in a way that would not penalize Petitioner for the Immigration Court’s delay. Because the BIA erred in holding that it lacked jurisdiction to grant Petitioner’s application and, in turn, failed to exercise its interpretive authority, the Court remanded. View "Martinez-Perez v. Barr" on Justia Law

Defendant-Appellant Petrona Gaspar-Miguel appealed a district court’s affirmance of her conviction for entering the United States. On appeal, she contended the district court’s conclusion that she “entered” the United States even though she was under the constant surveillance of a border patrol agent was contrary to established law defining “entry.” The Tenth Circuit rejected this argument and affirmed the district court. View "United States v. Gaspar-Miguel" on Justia Law