U.S. Tenth Circuit - The FindLaw 10th Circuit Court of Appeals Opinion Summaries Blog

Recently in Immigration Law Category

Colorado Court Strikes Human Smuggling Law

Sometimes, you just don't know where the road will take you -- especially when you take a wrong turn.

Bernardino Fuentes-Espinoza found that out when he was driving illegal immigrants across state lines into Colorado. He was caught and convicted of smuggling under state laws.

Seven years later, the Colorado Supreme Court threw out his conviction because Colorado's law was preempted by federal law. His case, Fuentes-Espinoza v. People, will go down as a litigation landmark.

Chinese Citizen Denied Asylum in U.S. for Application Inconsistencies

A Chinese national was denied asylum despite his claims of persecution in China for his Catholic beliefs. The denial of asylum was affirmed at the Court of Appeals for the Tenth Circuit for inconsistencies he presented first before an Immigration Judge.

According to the Immigration Judge, Mr. Dao Kai He failed to "establish his credibility" because he provided multiple answers when asked to reconcile inconsistencies.

After Miguel Gutierrez-Carranza pleaded guilty to reentering the U.S. following a prior deportation, the district court sentenced him to three years of supervised release. Gutierrez-Carranza appealed, making the fairly straightforward argument that, since he was bound to be deported anyway, the supervised release was unreasonable. After all, he won't be in the country to be supervised.

That's not unreasonable enough for the Tenth Circuit, though. The court found that supervised release could provide deterrence against Gutierrez-Carranza illegally returning to see his family and children.

10th Cir Issues Cranky Deportation Order; Yells at 9th Circuit

In the overly-formal world of appellate courts, it's refreshing to run across the oddly non-staid opinion from time to time. Nothing breaks the monotony like an opinion written in limerick form or ten pages of angry rants about frivolous immigration appeals and another circuits' procedures.

Lucio Salgado-Toribio will soon be forcefully removed from the United States. He's faced deportation, voluntarily or forcefully, for the last three years. In the meantime, he has utilized frivolous appeals, forum shopping, and hilariously-clever "dilatory" tactics to stay in the country while his cases were pending. Today, the Tenth Circuit had enough and after ordering his immediate removal from the country, admonished him further:

No Right to Bear Arms: Illegal Immigrants Are Not 'The People'

In District of Columbia v. Heller, the Supreme Court held that the Second Amendment protects an individual's right to possess a firearm, unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, like self-defense within the home. That right, according to the Tenth Circuit Court of Appeals, is "qualified by what one might call the 'who,' 'what, 'where,' 'when,' and 'why.'"

The "who," for example, does not include illegal immigrants.

Green v. Napolitano, No. 10-1156

Action Concerning Revocation of I-130 Petition

In Green v. Napolitano, No. 10-1156, an action claiming that the revocation of petitioners' I-130 petition violated their constitutional due process rights because they never had the opportunity to confront or cross-examine petitioner's former spouse, the court affirmed the dismissal of the action for lack of jurisdiction where 8 U.S.C. section 1252(a)(2)(B)(ii) stripped the district court of jurisdiction to review a section 1155 revocation.

Garcia-Carbajal v. Holder, No. 09-9558

Petition for Review of BIA Removal Order

In Garcia-Carbajal v. Holder, No. 09-9558, a petition for review of a BIA order of removal, the petition is dismissed where petitioner did not raise the ground for review to the BIA, and petitioner did not exhaust his administrative remedies as the BIA did not: 1) clearly identify a claim, issue, or argument not presented by the petitioner; 2) exercise its discretion to entertain that matter; and 3) explicitly decide that matter in a full explanatory opinion or substantive discussion.

Iliev v. Holder, No. 09-9517, concerned a petition for review of a Board of Immigration Appeals (BIA) order holding petitioner ineligible for a hardship waiver under 8 U.S.C. section 1186a(c)(4)(B).  The court of appeals denied the petition on the grounds that 1) the court lacked jurisdiction to review part of the petition because deciding it would require the court to pass on the BIA's credibility determinations and the weight the BIA gave to certain pieces of evidence; and 2) the BIA applied the correct legal standard when evaluating his eligibility for a good faith marriage waiver.

Mink v. Knox, No. 08-1250, involved an action seeking damages for the search and seizure of plaintiff's computer as part of an aborted criminal libel prosecution.  The court of appeals reversed the dismissal of the action against defendant-district attorney based on qualified immunity, holding that 1) the amended complaint plausibly asserted the requisite casual connection between defendant's conduct and the search and seizure that occurred at plaintiff's home; and 2) because a reasonable person would not take the statements in the editorial column at issue as statements of facts by or about the alleged libel victim, no reasonable prosecutor could believe it was probable that publishing such statements constituted a crime warranting a search and seizure of plaintiff's property.

Related Resources

Chamber of Comm. of the US v. Edmondson, No. 08-6127

In an action claiming that provisions of the Oklahoma Taxpayer and Citizen Protection Act (the Act) were preempted by federal law, a preliminary injunction in favor of plaintiffs is affirmed in part where: 1) section 7(C) of the Act imposed sanctions "upon those who employ unauthorized aliens," and was thus preempted by 8 U.S.C. section 1324a(h)(2); and 2) by requiring verification of independent contractors, section 9 of the Act risked exposing contracting entities to liability under federal law, and thus section 9 was preempted as well.  However, the order is reversed in part where section 7(B) of the Act was not preempted because no evidence suggested that federal standards concerning immigration and employment-verification would be compromised by the online monitoring system required by that section.

Read Chamber of Comm. of the US v. Edmondson, No. 08-6127

Appellate Information

Filed February 2, 2010


Opinion by Judge Lucero


For Appellants:

M. Daniel Weitman, Kevin L. McClure and Sandra D. Rinehart, Oklahoma Attorney General's Office, Oklahoma City, OK

Guy L. Hurst, Assistant General Counsel, Oklahoma Tax Commission, Oklahoma
City, OK

For Appellees:

Carter G. Phillips, Eric A. Shumsky and Brian E. Nelson, Sidley & Austin LLP, Washington, DC

Robin S. Conrad and Shane Brennan, National Chamber Litigation Center, Inc., Sidley Austin LLP, Washington, DC

Carpio v. Holder, No. 08-9536

In a petition for review of the BIA's denial of petitioner's application for a conditional adjustment of status under 8 U.S.C. section 1255(d), the petition is granted where petitioner met the statutory requirement of being under twenty-one at the time he entered the U.S.  A K-2 visa holder who timely applies for an adjustment of status under section 1255(d) must be under twenty-one when he or she seeks to enter the United States, not when his or her subsequent application for adjustment of status is finally adjudicated.

Read Carpio v. Holder, No. 08-9536

Appellate Information

Filed January 12, 2010


Opinion by Judge Henry


For Petitioner:

Philip M. Alterman, Stern Elkind Curray & Alterman, Denver, CO

For Respondent:

James E. Grimes, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC