The U.S. Court of Appeals for the Fifth Circuit recently clarified two related requirements for obtaining Cancellation of Removal for non-Lawful Permanent Residents. Rodriguez-Avalos v. Holder, No. 13-60736, slip op. (5th Cir. March 4, 2015). Specifically, the court concluded that the good moral character requirement doesn’t involve an analysis of moral turpitude and that the applicant must have established GMC during the ten years immediately preceding the immigration judge or Board of Immigration Appeals’ decision. This case involved a migrant who entered without inspection and was later [...]
Supreme Court agrees to decide whether immigration deadline is flexible
Last week, the U.S. Supreme Court announced that it would decide whether a regulatory deadline by which motions to reopen must be filed could be bent. Mata v. Holder, 14-185, 2015 WL 213642 (Jan. 16, 2015). The Court’s decision to grant the petition for writ of certiorari last Friday was understandably clouded by news that it also agreed to hear a collection of cases involving equal marriage rights. Though less prominent, Mata is of significance to anyone involved in immigration law. This case arises from a time limit on when individuals in removal proceedings must file a motion to reopen. [...]
5 Cir: Sexually assaulted detainees have tough row to hoe to hold officials accountable
The U.S. Court of Appeals for the Fifth Circuit denied claims brought by women who were sexually assaulted while being transported from the notorious T. Don Hutto Residential Center, an immigration prison in central Texas. Doe v. Robertson, No. 13-50459, slip op. (5th Cir. May 6, 2014) (Stewart, Garza, and Southwick). Judge Garza wrote the panel’s opinion. This case involved complaints by several women who were detained at Hutto and sexually assaulted by Donald Dunn, an employee of the private prison company Corrections Corporation of America (CCA), while being transported by Dunn from [...]
5 Cir: Drug trafficking aggravated felony requires knowing substance was illicit
The U.S. Court of Appeals for the Fifth Circuit held that Florida’s cocaine delivery offense is not a drug trafficking type of aggravated felony because, unlike federal law, it does not require, as an element of the crime, showing that the defendant knew that the substance was a controlled substance. Paez Sarmientos v. Holder, No. 13-60086, slip op. (5th Cir. Feb. 12, 2014) (Reavley, Prado, and Owen, JJ.). Judge Owen wrote the panel’s opinion. This case involved an LPR who pleaded guilty to delivering cocaine in violation of Florida Statute § 893.13(1)(a)(1). After finding that Paez [...]
5 Cir: Rejects Silva-Trevino
The U.S. Court of Appeals for the Fifth Circuit rejected the Attorney General’s decision in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), expanding the analytical framework by which immigration courts determine whether an immigrant has been convicted of a crime involving moral turpitude. Silva-Trevino v. Holder, No. 11-60464, slip op. (5th Cir. Jan. 30, 2014) (Benavides, Owen, and Southwick, JJ.). As a result, immigration courts in the Fifth Circuit must use the categorical approach and modified categorical only when determining whether an immigrant has been convicted of a CIMT. [...]
5 Cir: You can’t make up constitutional provisions
In a harsh rebuke to roughly thirty-five years of government practice, the U.S. Court of Appeals for the Fifth Circuit exposed the government’s repeated reliance on a non-existing constitutional provision to deny U.S. citizenship claims by children born out of wedlock in México. Saldana Iracheta v. Holder, No. 12-60087, slip op. (5th Cir. September 11, 2013) (Reavley, Elrod, and Graves, JJ.). Judge Graves wrote the panel’s decision. This case involved an individual who was born in México to a U.S. citizen father and Mexican citizen mother who were not married to each other. As an adult, [...]
5 Cir: 212(c) relief available after jury trial if able to show “likelihood of reliance” on its existence rather than actual reliance
The U.S. Court of Appeals for the Fifth Circuit held that § 212(c) relief remains available to individuals convicted through a jury trial prior to the enactment of IIRIRA in 1996 if they are able to show a “likelihood of reliance” on the now repealed law. Carranza v. Holder, No. 11-60396, slip op. (5th Cir. Nov. 6, 2012) (Davis, Smith, and Dennis, JJ.). Judge Dennis wrote the panel’s decision. This case involved an LPR convicted after a jury trial in 1993, three years before Congress repealed § 212(c) relief through the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). [...]
5 Cir: Sealed pre-sentence report may be used in removal proceedings; use isn’t grounds for sanctions
The U.S. Court of Appeals for the Fifth Circuit upheld the use of a sealed pre-sentence investigation report (PSR) in removal proceedings and held that DHS trial attorneys should not be cited for criminal contempt as a result of submitting the PSR to an immigration judge without first receiving permission from the criminal court. United States v. Iqbal, No. 10-51200, slip op. (5th Cir. June 14, 2012) (Jones, Owen, and Higginson). Judge Jones wrote the panel’s decision. This case involved an individual convicted of structuring financial transactions to evade federal reporting requirements [...]