By: Sarah Flinn The Wisconsin Supreme Court recently held that a migrant defendant is permitted to withdraw a guilty plea if she is able to show that the judge presiding over the plea hearing failed to notify her of “likely” adverse immigration consequences of conviction, as required by state statute, and that the guilty plea is now “likely” to result in adverse immigration consequences. State v. Valadez, Nos. 2014AP678, 2014AP679, 2014AP680, 2016 WL 325524, at *2, *6 (Wis. Jan. 28, 2016). In contrast to previous Wisconsin caselaw regarding the burden of proof required to show “likely” [...]
BIA: Exceptions Must Apply to Consider Returning Lawful Permanent Residents as Seeking Admission to the U.S.
By: Sarah Flinn The Board of Immigration Appeals recently held that a returning lawful permanent resident may not be regarded as seeking admission to the United States unless one of the exceptions listed in INA § 101(a)(13)(C) applies. Matter of Pena, 26 I&N Dec. 613, 618 (BIA June 16, 2015). The main issue faced by the Board in Matter of Pena is whether Mr. Pena, who was granted lawful permanent resident status on June 5, 2000, could be charged under INA § 212(a) as an arriving alien seeking admission to the U.S. despite the fact that none of the exceptions in § 101(a)(13)(C) [...]
5th Circuit: Border wave-through is an admission for cancellation purposes
By Sarah Flinn A recent decision by the U.S. Court of Appeals for the Fifth Circuit held that admission to the U.S. is met by a physical wave through the port of entry by an immigration official. Further, in relation to the INA provision governing cancellation of removal for lawful permanent residents, § 240A(a), the wave-through admission is valid for all immigrants, whether documented or not. Tula Rubio v. Lynch, No. 14-60183, slip op. (5th Cir. May 21, 2015). In 1992, in very common circumstances, Ramiro Constantino Tula Rubio, age 4, entered the United States as a passenger in a car [...]
BIA: Adjustment is admission for removal; refines what constitutes “element” of offense
The Board of Immigration Appeals did a lot in a short ten-page decision: held that adjustment of status constitutes an admission when determining removal, providing some clarity on when a sentencing enhancement constitutes an “offense,” and ultimately held that the military’s version of sodomy by force is a crime of violence type of aggravated felony. Matter of Chavez-Alvarez, 26 I&N Dec. 274 (BIA 2014) (Pauley, Guendelsberger, and Malphrus, Board members). Board member Pauley wrote the panel’s decision. This case involved a member of the U.S. Army convicted of sodomy by force in [...]
BIA: Entry based on lying about USC status isn’t “admission”; conviction for making materially false statement to government official is CIMT
The BIA held that a person who enters the United States using a passport obtained after lying about being a United States citizen has not been “admitted” for immigration law purposes, and a conviction for lying to the State Department to receive a passport is a crime involving moral turpitude. Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013) (Grant, Malphrus, and Mullane, Board members). Board member Grant wrote the panel’s decision. This case involved a non-citizen who entered the USA on a student visa, then obtained a U.S. birth certificate that she used to apply for and receive a U.S. [...]
7 Cir: Posner tells BIA to follow precedent; person who leaves & returns is seeking admission
In an opinion that has become characteristic of his stance toward the Board of Immigration Appeals, Judge Posner, writing for a panel of the U.S. Court of Appeals for the Seventh Circuit, told the Board that it can’t just ignore its own precedent: a noncitizen with a criminal history who leaves the country and seeks to return must be treated as a person seeking admission. Margulis v. Holder, No. 12-3611, slip op. (7th Cir. Aug. 5, 2013) (Posner, Manion, and Rovner, J.). Mr. Margulis was successfully represented by Valparaiso University Law School’s Immigration Clinic, run by Professor Geoffrey [...]
9 Cir: Not all entries are equal
Showing up at the border, presenting an LPR card, and being allowed to enter the USA doesn’t necessarily mean you reentered legally, the Ninth Circuit concluded. Tamayo-Tamayo v. Holder, No. 08-74005, slip op. (9th Cir. Feb. 28, 2013) (Noonan, Graber, and Fisher, JJ.). Judge Graber wrote the panel’s opinion. This case involves an LPR who was removed in 1989 and again in 1993. Sometime later “he entered at a border crossing by presenting his pre-1989 permanent resident card to the border official. The border official allowed Petitioner physically to enter the country.” Tamayo-Tamayo v. Holder, [...]
BIA: Admitted person must be charged as deportable
The BIA held that a noncitizen who was admitted into the United States must be charged as deportable rather than inadmissible to be properly placed into removal proceedings. Matter of D-K-, 25 I&N Dec. 761 (BIA April 12, 2012) (Cole, Pauley, and Wendtland, Board members). Board member Pauley wrote the panel’s opinion. This case involved an individual who was admitted into the U.S. as refugee. He was denied adjustment of status, then convicted of distributing cocaine within 1,000 feet of a school. On the basis of this conviction, DHS initiated removal proceedings. After first charging the [...]