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

Petitioner Alfonzo De Niz Robles filed an administrative application for an adjustment of status after and in reliance on the Tenth Circuit’s decision in “Padilla-Caldera v. Gonzales (Padilla-Caldera I, 426 F.3d 1294 (2005)). His petition languished so long that it still stood waiting for a decision four years later, after the BIA handed down “In re Briones, (24 I.&N. Dec. 355 (BIA 2007). The Tenth Circuit decided “Padilla-Caldera II.” When the BIA finally did take up petitioner’s petition in 2013, it decided to apply its decision in Briones retroactively to his case, using it to hold him categorically ineligible for an adjustment of status and subject to removal. On appeal. Petitioner sought to overturn that decision. “[I]n the end, the BIA’s decision to apply Briones retroactively to Mr. De Niz Robles finds no support in our examination of the principles underlying the law of retroactivity, in Supreme Court or circuit precedent, or in relevant authority from other jurisdictions.” View "De Niz Robles v. Lynch" on Justia Law

Defendant-appellant Kefelegne Alemu Worku was an Ethiopian man who entered the United States after assuming the identity of an Eritrean man, Habteab Berhe Temanu. Using Berhe's identity, Worku lived in the Denver area for years and eventually became a U.S. citizen. Immigration authorities learned that Worku was using a false identity and suspected that he had tortured Ethiopian prisoners in the 1970s. After an investigation and trial, Worku was convicted of: (1) unlawful procurement of citizenship or naturalization; (2) fraud and misuse of visas, permits, and other documents, and (3) aggravated identity theft. Worku was sentenced to 22 years, relying in part on a finding that he had committed these crimes to conceal violations of human rights in Ethiopia. On appeal, Worku argued (1) the immigration-related convictions violated the Double Jeopardy Clause; (2) the conviction for aggravated identify theft was improper because Worku had permission to use Berhe's identity; (3) the sentence was procedurally unreasonable because there was no evidence that Worku had come to the United States to conceal violations of human rights and the witnesses identifying him as an Ethiopian torturer had done so because of improperly suggestive photo arrays; and (4) the sentence was substantively unreasonable. Finding no merit to any of these contentions, the Tenth Circuit affirmed. View "United States v. Worku" on Justia Law

Petitioner Yang You Lee was a native and citizen of Thailand. He became a permanent resident of the United States in 1987 when he was five years old. In 2014, an immigration judge (IJ) sitting in Dallas found him removable for committing a crime of violence (a misdemeanor domestic assault) and denied his application for cancellation of removal. In the Board of Immigration Appeal's order dismissing Lee's appeal, the BIA noted Oklahoma City next to Lee's file number, apparently indicating Lee's final hearing was located there. Lee filed his petition for review in the Fifth Circuit, which transferred the petition to the Tenth Circuit sua sponte and without explanation. The Tenth Circuit concluded after review that venue was proper with the Fifth Circuit, and transferred this case back to that court for further proceedings. View "Lee v. Lynch" on Justia Law

Petitioner-appellee Manuel Olmos (a citizen of Mexico) was convicted in state court on charges involving identity theft, providing false information to a pawnbroker, and forgery of a government document. Olmos received probation, but was taken into federal custody six days later on the ground that his conviction triggered mandatory detention. Olmos sought a writ of habeas corpus, arguing that he was entitled to a bond hearing, where he could seek release while his removal hearing was pending. The district court agreed and granted a writ of habeas corpus, holding that he was entitled to a bond hearing. At the eventual bond hearing, Olmos was released on a $12,000 bond. The government argued on appeal that the Attorney General had a statutory duty to detain Olmos (without a bond hearing) notwithstanding his six-day gap in custody. After review, the Tenth Circuit agreed with the government and reversed based on: (1) deference to the way the Board of Immigration Appeals has interpreted section 1226(c); and (2) the continued duty to impose mandatory detention even if the Attorney General had waited too long to take custody of Olmos. View "Olmos v. Holder" on Justia Law

Petitioner Benjamin Rodas-Orellana entered the United States without inspection to escape gang recruitment in El Salvador. He applied for asylum and withholding of removal. An Immigration Judge (IJ) and the Board of Immigration Appeal's (BIA) denied petitioner's application because he failed to show a well-founded fear of persecution on account of membership in a particular social group. The proposed group, "Salvadorans who resisted gang recruitment" lacked "social visibility" and therefore did not constitute a "particular social group." After the BIA issued its final order in this case, it issued decisions in two other cases that modified the social visibility requirement to be one of "social distinction." In light of these decisions, petitioner moved for reconsideration, which the BIA denied. In his petition to the Tenth Circuit Court of Appeals, petitioner contested both the final order of removal by the BIA and the Board's denial of his motion to reconsider. Finding no reversible error after review of the matter, the Tenth Circuit affirmed the BIA. View "Rodas-Orellana v. Holder" on Justia Law

It was undetermined when petitioner Carlos Jovany Medina-Rosales entered the United States, but he received an adjusted status as a lawful permanent resident (LPR) in late 2001. In 2013, while residing in Oklahoma, he was convicted of grand larceny in Oklahoma state court. Shortly thereafter, the Department of Homeland Security (DHS) began removal proceedings. The Notice to Appear ordered him to appear before an Immigration Judge (IJ) in Dallas, Texas, even though the issuing officer was in Tulsa, Oklahoma. About two months later Medina-Rosales was issued a Notice of Hearing stating that a master hearing would be held before an IJ in Tulsa. The Dallas-based IJ held video conference hearings with Medina-Rosales and his counsel, who were in Tulsa. The IJ issued an oral decision, ordering Medina-Rosales’ removal and pretermitting and denying his applications for waiver of inadmissibility and adjustment of status. The IJ rejected his argument that Fifth Circuit law applied, deciding, instead, that Tenth Circuit law applied because the case arose in Tulsa, even though the IJ was located in Dallas and proceedings were conducted by video conference. Next, the IJ determined that Medina-Rosales was ineligible for a waiver of inadmissibility, and, by extension, adjustment of status, because he had been convicted of the aggravated felony of grand larceny after acquiring LPR status. The BIA dismissed Medina-Rosales’ appeal, and he appealed to the Tenth Circuit. Based on the clear and unambiguous language of 8 U.S.C. 1182(h), the Tenth Circuit concluded that Medina-Rosales was eligible for a waiver of inadmissibility. Accordingly, the Court granted the petition for review and remanded this case back to the BIA with instructions to remand to the IJ for further proceedings. View "Medina-Rosales v. Holder" on Justia Law

The Department of Homeland Security initiated proceedings to remove petitioner Gustavo Mena-Flores from the United States on the ground that he was in the country illegally. Petitioner conceded removability, but applied to adjust his status to permanent residency based on his marriage to a U.S. citizen. The immigration judge eventually denied the request, stating that petitioner was ineligible for permanent residency because of a “reasonable belief” that he had participated in drug trafficking. On appeal the Board of Immigration Appeals affirmed, concluding that the immigration judge had sufficient evidence to find a reason to believe that petitioner had participated in drug trafficking. Petitioner then appealed to the Tenth Circuit for review the Board’s denial of his request for adjustment in status. While the petition was pending, the Board denied petitioner's subsequent motions to reopen the case and reconsider the denial of his motion to reopen. Petitioner then filed petitions seeking review of these denials. After review, the Tenth Circuit denied petitioner's petitions, finding no reversible error in the Board's decisions. View "Mena-Flores v. Holder" on Justia Law

Ramirez-Coria illegally entered the United States in 1995. He was placed in removal proceedings in April 2009, and conceded removability at his initial hearing. At a second hearing in May 2009, Ramirez-Coria requested a continuance in order to complete his application for cancellation of removal (Form EOIR-42B). The instructions on Form EOIR-42B directed Ramirez-Coria to: (1) attend an appointment with a nearby immigration Application Support Center (ASC) to provide biometric information; (2) obtain a biometrics confirmation notice from the ASC and bring it to his hearing as evidence he had provided his biometrics; and (3) file the completed Form EOIR-42B application and all supporting documentation with the Immigration Court within the time period directed by the IJ. Because Ramirez-Coria had not included the biometric information with his application, the IJ rescheduled his hearing to October 2010, eighteen months away. The IJ later rescheduled the hearing to January 2012, but shortly before the hearing Ramirez-Coria’s counsel moved to withdraw, stating his client had “lost interest in his own case.” New counsel entered an appearance, and the hearing was rescheduled for March 2, 2012. Ramirez-Coria submitted his supporting documentation for the application two days before the March hearing, but without the biometric information. At the hearing, counsel told the IJ that Ramirez-Coria had gone to an ASC the day before and provided his fingerprints. Officials at ASC would not take Ramirez-Coria’s fingerprints without any identification or birth certificate, and counsel stated that Ramirez-Coria had lacked any form of identification for the past three years until the day before the hearing. The government stated that DHS had no record that Ramirez-Coria had provided his fingerprints. Counsel did not dispute the IJ’s observation that the DHS obviously had not had time to complete its required investigation. The IJ also noted that all of Ramirez-Coria’s supporting documentation for the application was untimely because the Immigration Court Practice Manual requires all filings to be submitted at least fifteen days in advance of the hearing. Counsel stated her office had been diligent in contacting Ramirez-Coria, but he had been working a lot and it had been difficult to get the documentation. The IJ determined that Ramirez-Coria’s application for cancellation of removal should have been deemed abandoned and concluded that he had not shown good cause for failing to complete the biometric requirement in over two years, nor had his counsel ever informed the IJ that he was having any problem obtaining his fingerprints. The IJ dismissed his application, but granted Ramirez-Coria voluntary departure. Ramirez-Coria appealed to the BIA, which concluded the IJ properly deemed his cancellation-of-removal application abandoned, and it dismissed his appeal. Finding no reversible error, the Tenth Circuit denied Ramirez-Coria's petition. View "Ramirez-Coria v. Holder" on Justia Law

After a sting operation involving two confidential informants and substantial audio and video surveillance, federal law enforcement officers caught Jesus Cabral-Ramirez ("Mr. Cabral") and Defendant-Appellant Maria Gutierrez de Lopez ("Ms. Gutierrez") attempting to transport an undocumented alien from El Paso, Texas to Denver, Colorado. A federal grand jury indicted Ms. Gutierrez on one count of conspiring to transport undocumented aliens. At trial, the Government elicited testimony from Border Patrol Agent Brian Knoll about the immigration status of the individual Ms. Gutierrez allegedly conspired to smuggle. Agent Knoll also provided expert testimony that transporting undocumented aliens away from U.S./Mexico border regions to the interior of the United States significantly reduced the odds of apprehension by law enforcement. The confidential government informants testified anonymously about several conversations they had with Ms. Gutierrez tending to support the charges against her. Although the Government provided the defense with the informants’ general criminal backgrounds, compensation records from federal agencies, and immigration status, it did not disclose their actual identities. Defense counsel cross-examined both witnesses in light of the disclosures provided by the Government, but was unable to conduct adequate independent pre-trial investigation. The jury convicted Ms. Gutierrez as charged, and the district court sentenced her to three years of probation. She appealed, arguing: (1) Agent Knoll’s testimony about the smuggled individual’s immigration status introduced inadmissible testimonial hearsay in violation of the Federal Rules of Evidence and the Confrontation Clause; (2) Agent Knoll’s expert testimony about the alien-smuggling trade was not helpful to the jury under Federal Rule of Evidence 702(a); and (3) the Government’s use of anonymous testimony violated the Confrontation Clause of the Sixth Amendment. Finding no reversible error, the Tenth Circuit affirmed. View "United States v. Gutierrez De Lopez" on Justia Law

Ernest McKenzie’s Canadian birth certificate listed the wrong birth date. Because he used that birth certificate to become a naturalized United States citizen, his United States Certificate of Naturalization also listed the wrong birth date. After he was naturalized, he got his birth certificate corrected; he tried to amend his naturalization certificate so that his paperwork listed the correct date. Relying on 8 C.F.R. 334.16(b) (2011) to establish the district court’s jurisdiction, he filed suit requesting that the district court order United States Citizenship and Immigration Services (USCIS) to issue a naturalization certificate with his correct date of birth. "The request seems fair and simple enough," but the Tenth Circuit could not help: "With limited exceptions not applicable here, Congress has withdrawn jurisdiction over naturalizations from the district courts. In addition, the district court lacked jurisdiction because Dr. McKenzie’s invocation of 334.16(b) is not a colorable claim." The Court affirmed the district court's dismissal of this action under Fed. R. Civ. P. 12(b)(1).View "McKenzie v. US Citizenship & Immigration" on Justia Law