Despite the Supreme Court’s foray into this issue next term, the U.S. Court of Appeals for the Fifth Circuit held that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), does not apply retroactively. United States v. Amer, No. 11-60522, slip op. (5th Cir. May 9, 2012) (Jones, Owen, and Higginson, JJ.). Judge Higginson wrote the panel’s opinion. This case involved an individual whose federal conviction, obtained through a guilty plea, became final on February 24, 2009, approximately thirteen months prior to the date on which the Supreme Court issued Padilla, the landmark decision recognizing that [...]
5 Cir: Failure to investigate plausible derivative citizenship claim is ineffective assistance
The U.S. Court of Appeals for the Fifth Circuit granted an ineffective assistance of counsel claim where the defense attorney failed to investigate a defendant’s plausible derivative citizenship claim. United States v. Juarez, No. 09-20764, slip op. (5th Cir. Feb. 24, 2012) (Reavley, Elrod, and Graves, JJ.). Judge Graves wrote the panel’s opinion. This case involves an individual who was born in México and entered the United States with his mother as a six-year-old. Prior to the defendant’s eighteenth birthday, his mother naturalized. In addition, he married a U.S. citizen prior to turning [...]
5 Cir: BIA can’t impose due diligence requirement on motion to reopen pre-1992 proceeding
U.S. Court of Appeals for the Fifth Circuit held thatthe BIA cannot impose a due diligence requirement on motions to reopen proceedings that began prior to 1992. Rodriguez-Manzano v. Holder, No. 09-60795, slip op. (5th Cir. Jan. 9, 2012) (Wiener, Clement, and Elrod, JJ.). Judge Elrod wrote the panel’s decision. This case involved an individual who entered without inspection. He was placed in deportation proceedings in 1987 and ordered deported in absentia in 1988. Almost twenty years later he filed a motion to reopen through new counsel claiming that his original counsel provided [...]
5 Cir: Unable to return to USA after removal isn’t habeas “custody”
The U.S. Court of Appeals for the Fifth Circuit held that an individual who sought habeas relief on the basis of an allegedly wrongful removal could not satisfy the “custody” necessary for habeas jurisdiction. Merlan v. Holder, No. 11-20366, slip op. (5th Cir. Dec. 6, 2011) (Higginbotham, Davis, and Elrod, JJ.) (per curiam) (unpublished). Merlan was an LPR who was removed after conceding that a conviction for “organized criminal activity in connection with the commission of auto theft” constituted an aggravated felony. Merlan v. Holder, 2011 WL 1376778, *1 (S.D. Tex. Apr. 12, 2011) (Atlas, [...]
BIA: Cuban adjustment of status constitutes admission for § 237 removal purposes
The BIA held that an individual whose status was adjusted from parolee to lawful permanent resident pursuant to the Cuban Refugee Adjustment Act of 1966 was dmitted for purposes of removal under INA § 237(a). Matter of Espinosa Guillot, 25 I&N Dec. 653 (BIA 2011) (Grant, Malphrus, and Mullane, Board members). Board member Grant wrote the panel’s decision. This case involves a Cuban citizen who was paroled into the United States and adjusted his status under the CRAA (often referred to as the Cuban Adjustment Act or CAA). Guillot subsequently was convicted of trafficking in cannabis and [...]
5 Cir: 212(h) waiver for single marijuana offense available once only
The Fifth Circuit Court of Appeals held that an individual who previously received a waiver of inadmissibility pursuant to INA § 212(h) waiving inadmissibility for a single offense for possession of 30 grams or less of marijuana cannot receive a second such waiver for a separate offense. Rana v. Holder, No. 10-60539, slip op. (5th Cir. Aug. 30, 2011) (Smith, Benavides, and Haynes, J.). Judge Smith wrote the panel’s decision. This case involved an LPR who was convicted in 2003 of possessing less than two ounces of marijuana. Rana, No. 10-60539, slip op. at 2. He was granted a § 212(h) waiver [...]
5 Cir: Right to bear arms doesn’t apply to undocumented; 1st, 4th Amend protections might not apply either
A divided panel of the U.S. Court of Appeals for the Fifth Circuit held that the Second Amendment to the U.S. Constitution does not apply to undocumented individuals. United States v. Portillo-Muñoz, No. 11-10086, slip op. (5th Cir. June 13, 2011) (Garwood, Garza, and Dennis, J.). Judge Garwood wrote the majority opinion joined fully by Judge Garza. Judge Dennis wrote a separate opinion concurring in part, but dissenting on the majority’s main points. This case involved an individual who admitted to entering the United States without inspection. He lived in Texas for approximately 18 months [...]
5 Cir: For 212(h) eligibility, LPR must apply for adjustment
The U.S. Court of Appeals for the Fifth Circuit recently held that a lawful permanent resident (LPR) inside the United States might be eligible for a waiver of inadmissibility only by applying for adjustment of status. Cabral v. Holder, 632 F.3d 886, No. 09-60386, slip op. (5th Cir. Feb. 2, 2011) (Jones, Dennis, and Clement, J.). Judge Clement wrote the panel’s decision. This case involves an LPR who was convicted of two crimes involving moral turpitude (CIMTs) and found ineligible for a waiver of inadmissibility under INA § 212(h). Under § 212(h), an immigration judge (IJ) acting on behalf [...]