Justia U.S. 5th Circuit Court of Appeals Opinion Summaries

Petitioner Jose Manuel Rodriguez-Avalos appealed a Board of Immigration Appeals (BIA) decision. Rodriguez was a citizen of Mexico who entered the United States without having been admitted or paroled. In January 2011, a Department of Homeland Security (DHS) inspection revealed that Rodriguez was one of fourteen employees of an Omaha, Nebraska grocery store against whom identity-theft complaints had been filed with the Federal Trade Commission. A DHS agent interviewed Rodriguez, who admitted his identity to the DHS agent and admitted that he had no documentation allowing him to enter or work in the United States. Rodriguez was then placed under arrest for administrative immigration violations. Rodriguez was subsequently indicted and charged with, inter alia, falsely and willfully representing himself to be a United States citizen. The BIA dismissed his appeal after an Immigration Judge’s denied of his application for relief from removal. The BIA held that the prison sentence Rodriguez served following his conviction for falsely and willfully representing himself as a United States citizen barred him from demonstrating the “good moral character” necessary to be statutorily eligible for relief from removal. Finding no reversible error in the BIA's decision, the Fifth Circuit affirmed. View "Rodriguez-Avalos v. Holder" on Justia Law

Petitioner, a native and citizen of Mexico, petitioned pro se for review of the BIA's finding that his prior offense of public lewdness under Texas Penal Code 21.07 was categorically a crime involving moral turpitude and that he was ineligible for cancellation of removal under section 240A(b)(1) of the Immigration and Nationality Act (INA), 8 U.S.C. 1229b(b)(1). The court concluded that petitioner's offense under the statute is not categorically a crime involving moral turpitude because section 21.07 is divisible into discrete subsections of turpitudinous acts and non-turpitudinous acts. Therefore, the IJ and the BIA erred in declining to review petitioner's record of conviction under the modified approach to determine whether he was convicted under a subsection that describes a crime involving moral turpitude. The court granted the petition for review. View "Cisneros-Guerrerro v. Holder" on Justia Law

In 2013, Vigil pleaded guilty, without a plea agreement, to illegal re-entry into the United States. A pre-sentence calculated a base offense level of 8. The PSR then applied a 16-level enhancement, finding that a previous conviction for sexual battery under Louisiana Revised Statute § 14.43.1 constituted a "crime of violence" under USSG 2L1.2(b)(1)(A)(ii). After a 2-level reduction for acceptance of responsibility, Vigil's total offense level was 22. Combined with a Criminal History Category of II, the PSR calculated a Guidelines range of 46 to 57 months imprisonment. Vigil objected that the government had not presented competent evidence to support the 16-level enhancement and that even if properly supported, the Louisiana conviction was not a "crime of violence." The district court applied the 16-level enhancement required by the Guidelines when there has been a prior conviction for a crime of violence. After granting the Government's motion for an additional 1-point reduction for acceptance of responsibility, the district court calculated a Guidelines range of 41 to 51 months imprisonment and sentenced Vigil to 41 months. The Fifth Circuit affirmed imposition of the enhancement. View "United States v. Vigil" on Justia Law

Petitioner, a native and citizen of Guatemala, sought review of the BIA's decision affirming the IJ's denial of his motion to reopen proceedings and rescind an in absentia removal order. The court concluded that, despite the high review bar, the BIA abused its discretion in denying petitioner's motion to reopen because insufficient notice of the removal proceedings entitled him to reopen proceedings at any time pursuant to 8 U.S.C. 1229a(b)(5)(C)(ii). The court rejected the government's argument that petitioner and his older brother's cases were consolidated, thus allowing the immigration court to address the letter to a single brother and still properly serve both of them with notice. The court also rejected the government's contention that notice addressed solely to the brother was proper since petitioner was under eighteen years old and his brother was an adult. Accordingly, the court granted the petition for review. View "Barrios-Cantarero v. Holder" on Justia Law

Petitioner, born in Mexico, petitioned for review of the BIA's decision affirming the IJ's order of removal, contending that removal is improper because he derived citizenship from his father under former 8 U.S.C. 1432(a)(5) of the Immigration and Nationality Act (INA). The court declined to decide whether the Second Circuit or the BIA has the correct interpretation of section 1432(a)(5) because petitioner does not qualify for derivative citizenship under either interpretation. The court also rejected petitioner's claim that section 1432(a)(5) does not require an individual to be lawfully present in the country. Because petitioner is not entitled to derivative citizenship under section 1432, the court also denied his motion to stay and transfer his case. The court declined to decide whether the proper interpretation of section 1432 is that of the Ninth and Eleventh Circuits or the Second Circuit because petitioner's claim fails under either approach. View "Gonzalez v. Holder, Jr." on Justia Law

Defendant appealed the district court's revocation of his supervised release, arguing that his supervised release expired prior to the date the United States Probation Office petitioned the district court for revocation - thereby divesting the district court of jurisdiction over his supervised release. The court concluded that defendant's term of pretrial detention did not toll his supervised release where neither period of detention was in connection with a conviction and the immigration detainer imposed during defendant's Texas pretrial detention was an administrative hold that did not amount to imprisonment in connection with a conviction for purposes of 18 U.S.C. 3624(e). Therefore, the court held that the district court did not have jurisdiction to revoke defendant's supervised release. The court vacated the revocation and the sentence imposed.View "United States v. Juarez-Velasquez" on Justia Law

Petitioner, born in Mexico, appealed the BIA's decision affirming the denial of his application for cancellation of removal for victims of domestic violence. The IJ found petitioner ineligible for relief due to a prior narcotics conviction. The court concluded that the government was not required to charge petitioner's narcotics conviction in the notice to appear for that conviction to serve as a ground of inadmissibility for Special Rule Cancellation; the BIA did not err in concluding that the IJ lacked authority to waive petitioner's narcotics-related grounds of inadmissibility; and petitioner's marijuana conviction makes him inadmissible under INA 212(a)(2)(A)(i)(II), which is a disqualifying ground for Special Rule Cancellation of Removal for victims of domestic violence. Accordingly, the court dismissed the petition for review.View "Rodriguez-Benitez v. Holder, Jr." on Justia Law

Petitioner, a native and citizen of El Salvador, petitioned for review of the BIA's dismissal of his appeal from the IJ's denial of his application for statutory withholding of removal and Convention Against Torture (CAT) protection. The court denied the petition for review as to statutory withholding where petitioner did not show that he would be persecuted on account of a protected ground because the court did not recognize economic extortion as a form of persecution under immigration law nor does it recognize wealthy Salvadorians as a protected group; granted the petition for review as to CAT protection where neither the BIA nor the IJ considered the alternative view of the evidence showing that the extortionists may have received their information about petitioner from other government officials acting in their official capacities; and remanded for further consideration of the petition for CAT protection. View "Garcia v. Holder, Jr." on Justia Law

Petitioner, a native and citizen of Mexico and a lawful permanent resident of the United States, appealed the IJ's determination that he was ineligible to apply for cancellation of removal to the BIA. The BIA dismissed the appeal, agreeing with the IJ that petitioner's auto-burglary conviction, as a conviction for an aggravated felony, rendered him ineligible to apply for cancellation of removal. The court made explicit what was dictum in Lopez-Elias v. Reno and joined its sister circuits in holding that a conviction for unauthorized entry of a vehicle with intent to commit a theft therein constituted a conviction for an attempted theft offense, which, under 8 U.S.C. 1101(a)(43)(U) and 1229b(a)(3), rendered petitioner ineligible to apply for cancellation of removal. Accordingly, the court denied the petition for review. View "Garcia v. Holder, Jr." on Justia Law

Petitioner, a national of Eritrea, requested asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner claimed that he fled Eritrea to escape an assignment within the country's National Service program, which he asserts is a program of human trafficking and not a legitimate program of military conscription. The IJ denied petitioner's application for asylum and withholding of removal, but granted his application for protection under the Convention Against Torture (CAT). The BIA affirmed. The court recognized that the evidence indicated the practices of the Eritrean government in enforcing its program of National Service were coercive and disturbing; the court noted that some of the evidence submitted in support of petitioner's motion to remand indicated that refusal to participate in National Service may be imputed as political opposition to the Government; but, however, the court could not say that the IJ's finding was unsupported by substantial evidence, nor could the court say that the BIA's denial of the motion was irrational or arbitrary. Accordingly, the court denied the petition. View "Milat v. Holder, Jr." on Justia Law