Recently in Immigration Law Category

Bryan St. Patrick Gallimore was arrested and convicted of second degree burglary with a sentence of no more than ten years. Gallimore was consequently facing criminal deportation as an alien convicted of an aggravated felony.

Gallimore sought to stay in the U.S. by seeking deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). However, he was denied because of the criminal alien bar under 8 U.S.C. Section 1227.

Just so we're clear, hitting someone over the head with a martini glass is not a very masculine way to get arrested.

But, according to the Eighth Circuit Court of Appeals, it's not necessarily a "violent or dangerous" crime that serves as grounds for removal.

For immigration attorneys practicing before the Eighth Circuit Court of Appeals, jurisdiction can be a very important topic. When the Board of Immigration Appeals shoots down your case, you may have to consider whether the Eighth Circuit can even hear your case.

A recent case was tossed by the federal appeals court for exactly that reason— lack of jurisdiction.

Oscar Alexander Granados Gaitan, a native and citizen of El Salvador, entered the United States to escape recruitment into a gang in his home country. Five years later, the U.S. initiated removal proceedings against him. Gaitan sought asylum.

This week, the Eighth Circuit Court of Appeals ruled that Gaitan didn't qualify as a member of an articulated social group entitled to asylum, and rejected his removal appeal.

Petition for Review of Removal Order

In Puc-Ruiz v. Holder, No. 09-1296, a petition for review of a Board of Immigration Appeals (BIA) decision dismissing petitioner's appeal from an Immigration Judge's (IJ) order removing him from the United States to Mexico, the court denied the petition where 1) there was no evidence in the record that the St. Charles police employed an unreasonable show or use of force in arresting and detaining petitioner; and 2) the BIA did not err in affirming the IJ's determination that petitioner's statements to an agent regarding his alienage and lack of lawful status in the U.S. were voluntarily made and need not be suppressed.

Reentry Conviction Affirmed

In US v. Quintana, No. 09-2749, the court affirmed defendant's conviction for re-entry by a deported alien following an aggravated felony conviction, holding that 1) the district court did not abuse its discretion, much less commit plain error, in relying on an officer's affidavit without a hearing; 2) the Border Patrol made a sufficient showing of probable cause to believe that defendant was a deportable alien; and 3) the government did not need to prove that use of the IAFIS/IDENT system was the quickest means of investigation reasonably available to determine whether defendant was in the country illegally.

Alien Harboring Conviction Affirmed

In US v. De Oliveira, No. 10-1281, the court affirmed in part defendant's conviction and sentence for harboring illegal aliens, holding that 1) the court had no reason to doubt the district court's factual determination that, had defendant's counsel coerced defendant into pleading guilty, defendant's very involved wife would have notified the lower court of the issue earlier; and 2) severe overcrowding together with lack of heat and furnishings presented an inherent health-and-safety risk to each of the occupants such that the application of an enhancement was warranted.  However, the court reversed in part where the workers' status as illegal aliens did not alone justify a vulnerable-victim enhancement under the facts of this case.

In US v. Paz, No. 10-1683, the court affirmed defendant's sentence for illegal reentry into the United States in violation of 8 U.S.C. section 1326(b), holding that the district court properly applied the sentencing enhancement for illegal reentry into the U.S. after a prior crime of violence, namely sexual assault under Arkansas law.

In Malonga v. Holder, No. 09-2218, a petition for review of the BIA's denial of petitioner's application for withholding of removal, the court granted the petition where 1) the court could not say the record shows more than periodic instances of mistreatment that did not rise to the level of persecution and other incidents that could not be clearly connected to a protected ground; 2) the court could not tell from the BIA's opinion whether it considered petitioner's political activities after he left the Congo; and 3) the BIA's pattern and practice analysis failed to account for the risks petitioner argued he would face as an actual or imputed political dissident.

Camishi v. Holder, No. 09-2503, involved a petition for review of the Board of Immigration Appeals (BIA) decision dismissing petitioner's appeal from the Immigration Judge's (IJ) order removing him from the U.S. to Albania.  The court denied the petition on the ground that, since the IJ denied the petition on an adverse credibility finding independent of the time bar, and the BIA affirmed the credibility finding, there was no prejudice and petitioner's due process rights under the Fifth Amendment were not violated.