By Mark R. Barr The U.S. Court of Appeals for the Tenth Circuit issued a precedential decision this week finding that a ruling from the BIA which interprets an ambiguous statute, and which overrules prior circuit court precedent under Brand X, should be presumed to act prospectively only. De Niz Robles v. Lynch, No. 14-9568, slip op. (10th Cir. Oct. 20, 2015). The decision will have a potentially sweeping impact on individuals who relied on controlling Tenth Circuit precedent only to have those settled expectations upset by an intervening, contrary Board decision. Our client, Alfonzo De [...]
10 Cir: Expands mandatory immigration detention
Earlier this week, the U.S. Court of Appeals for the Tenth Circuit expanded the broad powers that immigration officials have to force migrants into mandatory immigration detention. Olmos v. Holder, No. 14-1085, slip op. (10th Cir. March 24, 2015). The court both endorsed and independently validated the Board of Immigration Appeals’ position that mandatory detention under INA § 236(c) is required even if the migrant is taken into ICE custody days after being released from criminal custody. This case involved a migrant convicted of state identity theft and two related crimes. After completing [...]
10 Cir: Sentence reduction doesn’t alter period actually confined for good moral character determination
The U.S. Court of Appeals for the Tenth Circuit held that the period of confinement actually served governs a determination of whether a migrant lacks good moral character even if a criminal court reduces the sentence to a period less than the time actually spent behind bars. Garcia-Mendoza v. Holder, No. 13-9531, slip op. (10th Cir. June 2, 2014). Judge Briscoe wrote the panel’s opinion. This case involved a man who overstayed a visa and, years later, was convicted of driving under the influence and leaving the scene of an accident. He spent 104 days in jail prior to his conviction, all of [...]
10 Cir: CO child abuse isn’t child abuse offense
The U.S. Court of Appeals for the Tenth Circuit held that a conviction for child abuse in Colorado categorically wasn’t a “child abuse” type of offenseaggravated felony. Ibarra v. Holder, No. 11-9539, slip op. (10th Cir. July 1, 2013) (Murphy, Seymour, and Holmes, J.). Judge Seymour wrote the panel’s decision. This case involved a woman who, despite having been brought to the United States as a four-year-old in 1985, remains unauthorized. She was convicted of “child abuse—negligence—no injury,” a Colorado misdemeanor carrying a minimum sentence of $50, Colo. Rev. Stat. § 18-6-401(1)(a), [...]
10 Cir: Apple can lead to deportation if it’s 2nd marijuana conviction because 2 convictions arising from same activity aren’t ‘single offense’ under controlled substances deportation ground
The U.S. Court of Appeals for the Tenth Circuit held that the phrase “single offense” in the controlled substances offense basis for deportation, INA § 237(a)(2)(B)(i), does not apply to more than one drug crime. Martinez-Mercado v. Holder, No. 11-9535, slip op. (10th Cir. July 27, 2012) (Kelly, Murphy, and Holmes, JJ.). Judge Murphy wrote the panel’s decision. This case involved an individual who became an LPR in 2002 and was convicted in 2007 of possession of marijuana, Utah Code Ann. § 58-37-8(2)(a)(i), and possession of drug paraphernalia (an apple, as described below), Utah Code Ann. § [...]
10 Cir: Lawful entry can be illegal reentry
The U.S. Court of Appeals for the Tenth Circuit held that an entry that would constitute a lawful entry for purposes of admission was an illegal reentry for purposes of reinstatement of removal. Cordova-Soto v. Holder, No. 10-9569, slip op. (10th Cir. Oct. 17, 2011) (Hartz, Holloway, and Porfilio, JJ.). Judge Holloway wrote the panel’s decision. This case involves an LPR who, pro se, requested and received a stipulated order of removal in which she conceded removability for having been convicted of an aggravated felony among other charges. Cordova-Soto, No. 10-9569, slip op. at 2-3. She was [...]
10 Cir: Col menacing is crime of violence type of aggravated felony
The U.S. Court of Appeals for the Tenth Circuit held that a felony conviction for violating Colorado’s menacing offense, Colo. Rev. Stat. § 18-3-206, is a crime of violence type of aggravated felony. Damaso-Mendoza v. Holder, No. 10-9579, slip op. (10th Cir. Aug. 9, 2011) (Kelly, Hartz, and Holmes, JJ.). Judge Hartz wrote the panel’s decision in a case that did not receive oral argument. This case involved an LPR who pleaded guilty to menacing and was sentenced to eighteen months imprisonment. Damaso Mendoza, No. 10-9579, slip op. at 2. According to the Tenth Circuit, the menacing statute [...]
3 Cir: MN sex offender registration not CIMT; adjustment doesn’t reset admission date
The U.S. Court of Appeals for the Third Circuit recently held that Minnesota’s predatory offender registration crime does not involve moral turpitude. Totimeh v. Attorney General, Nos. 10-3939 & 11-1998, slip op. (3d Cir. Jan. 12, 2012) (McKee, Rendell, and Ambro, JJ.). The court also followed the BIA’s 2011 decision in which the Board held that the applicable date of admission for removability is the date on which the noncitizen was in the country when the crime was committed as opposed to a later adjustment of status date. Judge Ambro wrote the panel’s decision. This case involves an [...]