Recently in Immigration Law Category

It's hard -- nearly impossible, in fact -- to win an immigration appeal if you're not appealing the correct removal order.

Nadeisha Lotha Fuller was admitted to the United States in 1992. In 2003, an immigration judge ordered Fuller removed on the ground that she had been convicted of an aggravated felony. Fuller asked the Board of Immigration Appeals (BIA) to reconsider that order. The BIA granted Fuller's motion, vacated the order of removal, and issued a new final order of removal.

By the time Fuller's attorney learned about the new order, the 30-day deadline to petition for review of the new order had passed, so Fuller petitioned the Second Circuit to review the older order. Her argument? The BIA's subsequent order left the reasoning of the prior order intact and vacated it in name only.

Witness tampering can get you kicked out of the country.

The Second Circuit Court of Appeals ruled this week that a conviction for witness tampering constitutes an "offense relating to obstruction of justice" for removal purposes.

Illegal Reentry Sentence Vacated

In US v. Ibarra-Luna, No. 09-40768, the court vacated defendant's illegal reentry sentence where, under the discretionary sentencing regime of Booker and its progeny, the harmless error doctrine applied only if the proponent of the sentence convincingly demonstrated both: 1) that the district court would have imposed the same sentence had it not made the error, and 2) that it would have done so for the same reasons it gave at the prior sentencing, and defendant's sentence did not meet this standard.

Petition for Review of Order of Removal Denied

In Varughese v. Holder, No. 10-0467, a petition for review of a final order of removal issued by the BIA, the court denied the petition where 1) Immigration and Nationality Act section 101(a)(43)(D), which defined an "aggravated felony" as a money laundering offense in which "the amount of the funds exceeded $10,000," 8 U.S.C. section 1101(a)(43)(D), captured only those violations of criminal statutes that use the specific word "funds"; and 2) because petitioner's money laundering conviction rendered him ineligible for admissibility to the U.S., he was similarly ineligible for adjustment of status.

Petition for Review of Denial of Motion to Reopen Removal Proceedings Dismissed

In Duarte-Ceri v. Holder, No. 08-6128, a petition for review of the BIA's denial of petitioner's motion to reopen removal proceedings, the court held the petition in abeyance and transferred the matter to the district court where petitioner was still "under the age of eighteen years" when his mother was naturalized, but there had been no factual finding as to the actual timing of petitioner's birth, and thus a new hearing on the nationality claim was required.

Denial of Cancellation of Removal Affirmed

In Rosario v. Holder, No. 09-3877, a petition for review of the BIA's denial of petitioner's application for cancellation of removal as an abused spouse under the amended Immigration and Naturalization Act, the court dismissed the petition where the BIA's decision raised no constitutional claims or questions of law.

Waiver of Inadmissibility Request Denied

In Ahmed v. Holder, No. 09-4247, a petition for review of an order of the Board of Immigration Appeals (BIA) denying petitioner's request for a waiver of inadmissibility under section 237(a)(1)(H) of the Immigration and Nationality Act, the court denied the petition where the court lacked jurisdiction to review the BIA's discretionary denial of a waiver of inadmissibity under § 237(a)(1)(H).

Petition for Review of Denial of Cancellation of Removal Denied

In Wellington v. Holder, No. 09-4111, a petition for review of the BIA's decision dismissing petitioner's appeal from the denial of her application for cancellation of removal, the court denied the petition where a Certificate of Relief or similar state rehabilitative treatment did not preclude use of the underlying offense as a basis for removal under 8 U.S.C. section 1182(a)(2)(A)(i)(II) or as a basis for ineligibility for cancellation of removal under 8 U.S.C. section 1229b(b)(1), unless the relief was related to a procedural or substantive defect in the criminal proceedings.

In Brooks v. Holder, No. 09-3805, a petition for review of an order of the Board of Immigration Appeals dismissing petitioner's appeal from the immigration judge's order of removal, the court denied the petition where a New York State conviction of one count of criminal possession of a weapon in violation of N.Y. Penal Law section 265.03(1)(b) satisfied the definition of a "crime of violence" under 18 U.S.C. section 16 such that petitioner in deportation proceedings was removable and also ineligible for cancellation of removal.