Recent Immigration Cases

1 DISCRETIONARY RELIEF FROM REMOVAL:  Schroeck v. Gonzales (10th Cir. 2005). Petitioner had overstayed his visa but later married his U.S. citizen wife.  The Immigration Service added more grounds for removal based on petitioner's criminal convictions. He was convicted of assault and domestic violence, driving while impaired, and assault. He had also been charged with sexual assault, but was not convicted. Petitioner was charged with being deportable under 8 USC Section 1227(a)(2)(E)(i) based on his conviction for domestic violence; with being inadmissible at entry under Section 1227(a)(1)(A); with being deportable under Section 1227(a)(1)(B) based on overstaying his visa; and under Section 1227(a)(1)(C)(i) based on his conviction for a crime of violence (assault) for which a sentence of more than one year of imprisonment may be imposed. The Immigration Judge (IJ) found that he did commit forcible rape upon a 14 year old girl, and denied the application for waiver of inadmissibility and for adjustment of status based on his marriage to a U.S. citizen. The BIA affirmed. The Tenth Circuit held that petitioner had no constitutional double jeopardy rights that could have been violated when IJ, in denying discretionary waiver of inadmissibility and adjustment of status, allegedly adjudicated alien guilty of crime for which charges had been dismissed with prejudice.

2.  MOTION TO REOPEN: Galvez Pineda v. Gonzales (10th Cir. 2005. The BIA affirmed IJ's order in removal proceedings because of failure to file a timely brief on appeal, and denied a motion to reopen the appeal. The BIA dismissed the appeal on December 9, 2002. The period for filing the motion to reopen expired 90 days later, on March 9, 2003. The motion to reopen was filed on June 22, 2004. Observing that the government conceded that tolling would be appropriate up to the point at which petitioners knew or should have known of prior counsel's ineffectiveness, and that petitioners in turn conceded that that point was reached in December 2003, when present counsel received a copy of the administrative record in the case, and discovered that prior counsel had received a briefing schedule from the BIA with which he had not complied, the Court said that the motion would not have been due before March 2004, but that even that date was three months before the motion was actually filed on June 22, 2004. The Tenth Circuit Court of Appeals, denying the petitions and citing Matter of Lozada, (BIA 1988), held that: (1) petitioners were required to exhaust their due process based claim of ineffective assistance of counsel through a motion to reopen before the BIA; (2) their claim was not exhausted by filing an untimely motion to reopen; (3) the time for filing a motion to reopen was equitably tolled until petitioners learned that prior counsel had not filed a brief with BIA on appeal from the removal order; and (4) the time for filing a motion to reopen was not further tolled.

3  MOTION TO REOPEN: Ali Abdi v. U.S. Attorney (11th Cir. 2005). Petitioner, a Somali citizen, entered the United States using a false Kenyan passport, and the Immigration Service alleged that he was removable. Petitioner then filed applications for asylum, withholding of removal and relief under CAT. An IJ denied the applications and ordered petitioner removed to Somalia. Petitioner's attorney filed a notice of appeal with the BIA, stating that petitioner would file a separate brief or statement, which petitioner's attorney failed to do, and the BIA dismissed the appeal. Represented by a different attorney, petitioner filed a motion to reopen his appeal on the ground that his previous attorney had rendered ineffective assistance of counsel. The BIA denied the motion. Observing that motions to reopen were disfavored, especially in a removal proceeding, the Eleventh Circuit, denying the petition, held that, in the instant case, the motion to reopen was clearly untimely under the BIA's rules because petitioner filed it long after the 90 day deadline. Court pointed out that the statutory 90-day period for filing a notice of appeal was mandatory and jurisdictional, and, therefore, it was not subject to equitable tolling. The Court said, it would be hard pressed to hold that the BIA, in the exercise of its discretion, had no option but to grant petitioner's motion to reopen.

4.  SENTENCING: U.S. v. Cantellano (11th Cir. 2005).  Petitioner was convicted of illegal reentry of a deported alien under, and was sentenced to 100 months of imprisonment because of his prior conviction of an aggravated felony. The appeal raised four issues: (1) whether, under Crawford v. Washington (U.S. 2004), a warrant of deportation was testimonial evidence subject to confrontation at trial; (2) whether, under Crawford, a defendant had a right to confrontation at sentencing; (3) whether, under Shepard v. United States (U.S. 2005), a sentencing court could use documents other than court records to identify a defendant with a conviction; and (4) whether a sentencing court could use prior convictions to enhance a sentence, where the prior convictions were neither charged in the indictment nor proved to the jury. Affirming appellants' conviction and sentence, the Eleventh Circuit Court held that: (1) the warrant of deportation was not testimonial evidence because it did not implicate adversarial concerns in the same way or to the same degree as testimonial evidence--noting that two other Circuits had reached the same conclusion; (2) Crawford did not extend to non capital sentencing--also noting that other Circuits had reached the same conclusion; (3) Shepard did not bar evidence at sentencing regarding the fact of prior convictions; and (4) the District Court did not err by relying on prior convictions to enhance appellant's sentence .

5.  CANCELLATION OF REMOVAL -  Loeza-Dominguez v. Gonzales (8th Cir. 2005).  The petitioner sought review of the denial of his application for cancellation of removal. He entered the United States without inspection, and  continuously resided in the United States for 10 years, and got married and had two children. He admitted to striking his nine year old stepson with an electrical cord and pled guilty to malicious punishment of a child in violation of Minn. Statute. Immigration then charged him under 8 U.S.C. Section 1182(a)(6)(A)(i). He conceded that he was removable, but applied for cancellation of removal. The immigration court stated that as a nonpermanent resident he was ineligible for cancellation of removal because he had been convicted of crime involving moral turpitude (8 USC Section 1227(a)(2)(A)(i)), or crimes of domestic violence or child abuse, child neglect, or child abandonment (8 USC Sections 1227(a)(2)(E)(i) and 1229b(b)(1)(C). The Immigration Judge (IJ) denied his  his application for cancellation of removal because the IJ found that petitioner's conviction for malicious punishment of a child was both a crime involving moral turpitude and a crime of child abuse. The BIA affirmed. Agreeing with the BIA's broad definition of "child abuse" as "any form of cruelty to a child's physical, moral, or mental well being," the Eighth Circuit Court of Appeals held that petitioner was guilty of child abuse, and denied the petition. 

6.  TRANSFER OF PETITION FOR REVIEW: Monter v. Gonzales (2d Cir. 2005). BIA affirmed an IJ's decision denying petitioner's motion for a transfer of the case from Buffalo to New York City, and concluded that he had misrepresented a material fact in his Petition to Remove the Conditions of Residence, and therefore he was removable. Petitioner entered the US and married a US citizen. He submitted a petition to Remove Conditions, which was approved. The Immigration Service later discovered, that petitioner had made a misrepresentation in his application. Both the IJ and the BIA held that the misrepresentation was "material" and the petitioner was therefore removable.  The Second Circuit Court decided that the BIA correctly determined that petitioner's misrepresentation "by giving false information concerning his separation from his wife" was material. However, the Court concluded that the BIA's determination merely established a presumption of removability, and the petitioner must be given the opportunity to rebut the presumption. Because he was not given that opportunity, and because he might have been prejudiced by the IJ's denial of his motion for a change of venue, the Court granted the petition and vacated the order of the BIA, and remanded with instructions for it, in turn, to vacate the IJ's order and remand with instructions to the Immigration Court to grant petitioner's request for a transfer of venue.

Recent Criminal Cases

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