Justia Government & Administrative Law Opinion Summaries

Appellant Gabriela Cordova-Soto petitioned the Tenth Circuit for review of a Department of Homeland Security (DHS) order reinstating her prior removal order under 8 U.S.C. 1231 (a)(5). Appellant is a native and citizen of Mexico, who entered the United States as a child and became a lawful permanent resident in 1991 at the age of 13. In 2005, DHS initiated removal proceedings against Appellant charging her as removable on three grounds: (1) as an aggravated felon; (2) as an alien convicted of two crimes involving moral turpitude; and (3) as an alien convicted of a controlled substance offense. Appellant had three Kansas state-law convictions, including a 2005 conviction for felony possession of methamphetamine for which she was sentenced to a suspended jail term of twenty months and eighteen months' probation. Appellant was found in 2010 in Wichita, Kansas and identified as an alien who had previously been removed. No criminal charges for illegal reentry were lodged against her, but DHS issued a Notice of Intent/Decision to Reinstate Prior Order, advising Appellant that she was subject to removal. Appellant argued to the Tenth Circuit that: (1) her underlying removal order was not lawful; and (2) her reentry into the United States after her previous removal was not illegal. On these bases she maintained that reinstatement of her previous removal order was precluded. Upon review of the DHS's determination and the applicable legal authority, the Tenth Circuit concluded Appellant failed to establish that DHS misconstrued the meaning of "reenters the United States illegally" in Sec. 1231 (a)(5): she was removed from the United States in 2005, and she admittedly reentered the country without the Attorney General's authorization shortly thereafter. Because she could not have entered the United States legally at that time, her reentry was illegal and she was therefore subject to reinstatement of her previous removal order. Accordingly, the Court denied Appellant's petition for review.

Mexican national Defendant-Appellant Nicolas Cobos-Chachas pled guilty to unlawfully reentering the United States after deportation. At sentencing, the district court varied downward from the advisory guidelines range and sentenced him to thirty-eight months' imprisonment, which was three months below the bottom of the advisory guideline range. Defendant challenged the length of his sentence as substantively unreasonable in light of the sentencing factors listed in the Guidelines. Upon review, the Tenth Circuit found that "Mr. Cobos-Chachas' own perception that the sentencing factors compel[ed] a more marked variance [did] not rebut the presumption that his below-guideline sentence [was] substantively reasonable." Accordingly, the Court affirmed Defendant's sentence.

Petitioners Mihiretab Teshome Jobira and Beza Teshome Jobira petitioned the Tenth Circuit to review final orders of removal. The Jobiras are natives and citizens of Ethiopia. They claimed to be brother and sister. In September 2006, the Jobiras entered the United States on visitor visas. On the date their visas expired, they applied for asylum and protection under the United Nations Convention Against Torture (CAT). According to their applications, the Jobiras were arrested on several occasions in 2005 as a result of their activities organizing fellow high school students in support of the "Coalition for Unity and Democracy" (CUD). They alleged that during their detentions, they were interrogated, held in squalid conditions, and severely beaten or tortured. After hearing the Jobirasâ testimony, an immigration judge issued an oral decision denying relief and granting voluntary departure. The judge concluded the Jobirasâ story had not proven credible for a number of reasons. The Jobiras appealed the judge's denial to the Board of Immigration Appeals (BIA). A single member of the BIA dismissed their appeal. The Tenth Circuit concluded that the Jobiras failed to meet the persecution standards for asylum, and necessarily failed to satisfy the higher standards required for restriction on removal under the immigration laws or relief under the CAT. Accordingly, the Court affirmed the BIA's and immigration judge's decisions.

Israeli citizens Arturas Bakanovas, Edita Bakanovas, and their daughter, Karolina Bakanovas, sought review of an order of the Board of Immigration Appeals (BIA) that denied their motion to reopen. In 1990 Arturas and Edita Bakanovas emigrated from Lithuania to Israel and became Israeli citizens. In 1991 they entered the United States on visitor visas and, after they overstayed their visas and the Immigration and Nationalization Service issued orders to show cause why they should not be deported, Arturas applied for asylum. The asylum application stated that Arturas had suffered persecution in Israel because of his Catholic faith and Lithuanian origin, that Edita had suffered persecution in Lithuania because of her Jewish faith, and that they both suffered persecution in Israel because of their interfaith marriage. In 1994 an immigration judge denied the Bakanovases asylum and withholding of deportation but granted their request for voluntary departure, with an alternate order of deportation to Israel or Lithuania if they remained in the United States after the voluntary-departure deadline. In October 2000 the BIA affirmed the order, and the Tenth Circuit affirmed that decision. The Bakanovases did not leave the United States, and in January 2007 they were arrested on immigration charges and released on bond. They then met with their current attorney, who informed them in April 2007 of the availability of relief under the Convention Against Torture. In March 2010, almost three years later, they filed a motion to reopen with the BIA, which the BIA denied. They petitioned the Tenth Circuit to review that decision. Because the denial of a motion to reopen is "a final, separately appealable order," the Tenth Circuit lacked jurisdiction to review the case. The Court dismissed Petitioners' appeal.

Plaintiff appealed the district court's judgment dismissing his petition for a writ of mandamus and his complaint seeking declaratory and injunctive relief under the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq. Plaintiff's complaint requested the district court to mandamus the defendants (1) to determine as a matter of law that plaintiff had been "admitted" to the United States for purposes of his application for adjustment of status under 8 U.S.C. 1255(a) and (2) to re-open and re-adjudicate plaintiff's application for adjustment of status, which was previously denied. The court held that plaintiff could not satisfy the requirements for mandamus relief and that he had not demonstrated that he lacked an adequate remedy for obtaining relief. In fact, plaintiff had sued under the APA, which provided an adequate remedy. Therefore, the court held that because plaintiff had an adequate remedy available to him, the district court properly dismissed his request for mandamus relief. The court also held that the plain language of section 1255(a) limited eligibility for status adjustment to an alien who had been inspected and admitted or paroled. That an alien with Temporary Protected Status had lawful status as a nonimmigrant for purposes of adjusting his status did not change section 1255(a)'s threshold requirement that he was eligible for adjustment of status only if he was initially inspected and admitted or paroled. Accordingly, the court held that the district court's ruling was consistent with the plain language of the statute. Furthermore, even if the statutory language was ambiguous, the court deferred to the Department of Homeland Security's consistent and well-reasoned interpretation of the interplay between section 1255(a) and section 1254a(f)(4). Therefore, the court affirmed the district court's dismissal of the petition and complaint.

Minta del Carmen Rivera Barrientos suffered an attack at the hands of gang members in her native country of El Salvador. She escaped to the United States and sought asylum. She contended she was eligible for asylum under 8 U.S.C. 1158 because she faced past persecution on account of her political opinion (opposition to gangs) and her membership in a particular social group (young females) who have resisted gang recruitment. The BIA argued that the attack was not on account of her political opinion and that she was not a member of a cognizable social group. Because the Tenth Circuit concluded the BIAâs interpretation of the applicable statute was not unreasonable, the Court concluded the agency did not abuse its discretion in finding that Rivera-Barrientos was ineligible for asylum.

This case stemmed from plaintiff's detention as an undocumented immigrant where plaintiff claimed that various authorities deprived him of medication for his schizophrenia and that the detention resulted from the insufficient training of public defenders regarding the immigration consequences of criminal pleas. At issue was whether plaintiff properly exhausted his administrative remedies under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346, 2671-80, where the federal agencies denied plaintiff's administrative tort claims before he amended his complaint in an ongoing civil action to name the United States as a party and allege a new cause of action under the FTCA. The court held that the claims were properly exhausted but affirmed the district court's dismissal on the alternative ground that plaintiff stated FTCA claims that fell outside the FTCA's waiver of sovereign immunity. The court also affirmed the grant of summary judgment on plaintiff's ineffective assistance of counsel claims, premised on 42 U.S.C. 1983 and Monell v. Department of Social Services.

Petitioner Vickers Waugh appealed a decision of the Board of Immigration Appeals (BIA) that ordered him removed from the United States. In August 2009, Petitioner pled guilty in Utah state court to one count of felonious sexual contact with a minor. Following his conviction, the government instituted removal proceedings. The immigration judge (IJ) found petitioner removable on two grounds: for sexual abuse of a minor and for child abuse. While Petitioner's proceedings were pending, the Supreme Court issued its opinion in "Padilla v. Kentucky," which held that a non-citizen defendant had a Sixth Amendment right to be advised of the risk of removal resulting from a guilty plea. Relying on that case, Petitioner unsuccessfully moved to terminate his removal proceedings. On appeal to the Tenth Circuit, Petitioner challenged the IJ and BIA's refusal to terminate the removal proceedings against him, arguing that his constitutional rights had been violated when no one advised him of the potential of removal when he pled guilty to the state felony charges. The Tenth Circuit found that "Petitioner attempt[ed] to frame his argument as a denial of due process . . . [i]t appears Petitioner's true objection, however, is to the way the IJ and BIA exercised their discretion. . . . This challenge raise[d] neither a constitutional nor a legal issue." The Court found it did not have jurisdiction to review his petition, and declined further review.

The Chamber of Commerce of the United States of America and various business and civil rights organizations (collectively, "Chamber") filed a federal preenforcement suit against those charged with administering the Legal Arizona Workers Act, Ariz. Rev. Stat. Ann. 23-211, 212, 212.01, which provided that the licenses of state employers that knowingly or intentionally employed unauthorized aliens could be, and in certain circumstances, must be, suspended or revoked. The law also required that all Arizona employers use E-Verify, an internet-based system employers could use to check the work authorization status of employees. At issue was whether federal immigration law preempted those provisions of Arizona law. The Court held that Arizona's licensing law fell within the confines of the authority Congress chose to leave to the states and therefore, was not expressly preempted where the Immigration Reform and Control Act ("IRCA"), 8 U.S.C. 1324a(h)(2), prohibited states from imposing civil or criminal sanctions on those who employed unauthorized aliens but preserved state authority to impose sanctions through licensing and similar laws. The court also held that Arizona's requirement that employers use E-Verify did not conflict with the federal scheme and in no way obstructed achieving the aims of the federal program.

Appellees filed suit asserting that their due process rights were violated when the Department of Homeland Security ("DHS") failed to make additional attempts at service after it had knowledge that the initial attempt at notice failed where the notice informed an obligor that an alien had been detained by DHS and that the obligor could post a cash bond to secure the alien's release. At issue was whether, in order to satisfy due process, the government must take additional reasonable steps to notify a bond obligor that the bond had been breached when the government had knowledge that the initial attempt at notice failed. The court affirmed summary judgment in favor of appellees and held that DHS violated the bond obligor's due process rights when it failed to take additional reasonable steps to notify the obligors of the bond demand after the initial notice was returned as undeliverable before it collected the bond.