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 [...]
9 Cir: Inconclusive record favors migrant
The U.S. Court of Appeals for the Ninth Circuit reversed course this week holding that a record of conviction that inconclusively identifies whether a migrant is removable must be viewed as failing to prove removability. Almanza-Arenas v. Holder, No. 09-71415, slip. op. (9th Cir. Nov. 10, 2014). This is a significant change for the Ninth Circuit, but also an important move away from the BIA’s position which it adopted when Almanza-Arenas’s case was before it. Matter of Almanza-Arenas, 24 I&N Dec. 771, 774 (BIA 2009). Here’s how I explain this situation in my forthcoming book [...]
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 [...]
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 [...]
Immigration law in the age of marijuana decriminalization
By Jordan Cunnings In a recent New Yorker interview, President Obama described marijuana use as a “bad habit and a vice, not very different from. . . cigarettes,” and not more dangerous than drinking. The President expressed concern with the disproportionate rates of criminal punishment for marijuana use in poor and minority communities, and spoke favorably of recent efforts to legalize small amounts of the drug in the states of Colorado and Washington. While Obama’s comments may be a good sign for marijuana legalization advocates, his personal viewpoint is glaringly inconsistent with his [...]
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), [...]
Tx Ct Crim App: Right to counsel properly waived despite not being told about deportation possibility
The Court of Criminal Appeals of Texas, the state’s highest criminal court, held that a person who waived his right to an attorney in a misdemeanor drug possession prosecution did not do so impermissibly despite not having been told that he might be deportable upon conviction. State v. Guerrero, No. PD-1258-12, slip op. (Tex. Crim. App. June 5, 2013) (Cochran, Keller, Price, Womack, Johnson, Keasler, Hervey, and Alcala, JJ.). Judge Cochran wrote the court’s opinion. This case presents like the picture of interior immigration enforcement in the age of crImmigration law. The defendant entered [...]
BIA: Animal fighting is crime involving moral turpitude
The BIA held that sponsoring or exhibiting an animal in an animal-fighting venture is a crime involving moral turpitude. Matter of Ortega-Lopez, 26 I&N Dec. 99 (BIA March 8, 2013) (Grant, Malphrus, and Mullane, Board members). Board member Malphrus wrote the panel’s decision. This case involved an individual who was not admitted or paroled. He conceded removability and sought cancellation of removal for non-LPRs. The IJ denied his cancellation application due to the animal fighting conviction, a violation of 7 U.S.C. § 2156(a)(1). Matter of Ortega-Lopez, 26 I&N Dec. at 99-100. On [...]