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

Defendant, a Mexican citizen, was removed from the U.S. in 1989, following convictions for grand theft auto, second degree burglary, amd receiving stolen property. About one month later, he illegally reentered. In 1990, he was convicted in Missouri of rape and armed criminal action and was sentenced to 18 years in prison. The Border Patrol was not notified of his 2008 release, and no removal order issued. In 2009 he was taken into custody and pleaded guilty to one count of illegal reentry, 8 U.S.C. 1326(a), (b)(2). The presentence report recommended enhancing his offense level by 16 levels based on his 1990 conviction. The district court found that, after serving his sentence, defendant unlawfully remained in the U.S., applied the 16-level enhancement and calculated a guidelines imprisonment range of 77 to 96 months, then sentenced him to 90 months. The Fifth Circuit vacated and remanded, holding that a defendant alleged to have unlawfully remained in the U.S. following a qualifying conviction under U.S.S.G. 2L1.2(b)(1)(A) is subject to the 2L1.2(b)(1)(A) enhancement only when a removal order is issued or reinstated after that conviction.

Petitioner, a native and citizen of Mexico, appealed the district court's dismissal for lack of subject matter jurisdiction of his 28 U.S.C. 2241 habeas petition challenging the removal order resulting in his deportation to Mexico. Petitioner argued that he was "in custody" within the meaning of section 2241 because he was being restrained from returning to the United States despite his wrongful removal. Because petitioner had failed to show that his deportation was the result of extreme circumstances or that he was subject to any restraints in Mexico not experienced by other non-citizens who lacked the documentation to enter the United States, he had not shown that he was "in custody" within the meaning of section 2241. Further, the district court did not have jurisdiction to review the final removal order pursuant to the provisions of the REAL ID Act, 8 U.S.C. 1252(a)(5). Accordingly, the district court did not err in dismissing the petition.

Petitioner petitioned for review of the BIA's decision that he be removed based on having committed an aggravated felony. Petitioner was charged and convicted of felonious sexual intercourse without consent. Petitioner did not "necessarily" commit the aggravated felony of rape, rather than a lesser crime. Because the court was not convinced that petitioner pled guilty to a crime that can be categorized as rape under 18 U.S.C. 1101(a)(43)(A), the court granted the petition for review and reversed the BIA's decision, remanding to the BIA.

Petitioner, a citizen of El Salvador, appealed both the BIA's dismissal of his initial appeal of the denial of his motion to reopen his deportation proceedings because of ineffective assistance of counsel and its denial of his motion for reconsideration. The court affirmed the denial of petitioner's first motion to reopen his deportation proceedings because he failed to comply with Matter of Lozada. The court held, however, that the BIA abused its discretion by denying petitioner's motion for reconsideration where the BIA imposed a due diligence requirement that was not part of Lozada's three-part test. Moreover, in doing so, the BIA directly contravened its own precedent and its earlier conclusion in this proceeding relying on that precedent in support of its conclusion that his motion was in fact timely filed. Accordingly, the court reversed the BIA's denial of petitioner's motion for reconsideration and remanded for further proceedings.

Petitioner, a citizen of China, petitioned for review of the BIA's order affirming the IJ's denial of his petition for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner claimed that he feared persecution if he returned to China because his family practiced Falun Gong. The court held that the BIA need not make a credibility determination when it determined that corroborating evidence was reasonably available to petitioner but was not submitted. The court also held that it could not conclude that petitioner exhausted his administrative remedies and the court did not have jurisdiction to consider his argument. Because petitioner failed to seek voluntary departure before the IJ, petitioner failed to exhaust his administrative remedies. Because the court denied petitioner's petition for review with respect to his application for asylum, it followed that the court also denied his petition for review with respect to his application for withholding of removal.

Plaintiff sued the Louisiana State Board of Practical Nurse Examiners, claiming its status requirement violated the Constitution when the Board denied her a license solely on account of her immigration status. Plaintiff was an alien who had applied for permanent residence. The district court granted the Board summary judgment on all grounds. The court held that because applicants for permanent resident status did not constitute a suspect class under the Equal Protection Clause, and a rational basis supported the immigration-status requirement, the judgment was affirmed.

The Qureshis were originally granted asylum from Pakistan because of Mr. Qureshi's support for the Jammu Kashmir Liberation Front (JKLF), but the USCIS later decided to terminate the Qureshis' asylum based on that same support, applying the "persecutor bar" to Mr. Qureshi. The Qureshis sued USCIS to challenge its application of the bar and the district court granted USCIS's motion to dismiss for lack of subject matter jurisdiction on the ground that the termination was not a final agency action. The court affirmed because it agreed that termination of asylum did not consummate agency action and thus was not final.

This appeal involved a putative class action brought against several oil and gas companies and several companies that provide labor for offshore oil and gas projects. Plaintiffs alleged that defendants maintained a hiring scheme to employ foreign workers on the Outer Continental Shelf in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961-1968, and the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. 1331 et seq. The district court disposed of all plaintiffs' claims and then entered final judgment dismissing all claims. The court held that the Service Defendants did not violate RICO because the law that would make their conduct racketeering activity did not apply in the place where that conduct occurred, namely vessels floating on the waters of the Outer Continental Shelf. The court rejected plaintiffs' contention that the exemptions the Service Defendants possessed to the OCSLA manning requirements did not shield them from RICO liability because those exemptions were fraudulently obtained. The court also held that plaintiffs could not state a claim for a private right of action for damages under the OCSLA and the district court's dismissal was proper. The court further held that the district court did not err in disposing plaintiffs' OCSLA enforcement claim. Accordingly, the judgment of the district court was affirmed.

Petitioner, a native of Jamaica, petitioned for review of a removal order of the BIA. After he pled guilty of possessing marijuana with intent to distribute in Georgia, DHS charged petitioner with being removable for this crime, which it contended should be considered a felony under the Controlled Substances Act (CSA), 8 U.S.C. 1227(a)(2)(A)(iii), and an "aggravated felony" under immigration law. The IJ agreed, and on appeal, the BIA endorsed the felony classification and dismissed petitioner's appeal. The court adopted the First and Sixth Circuits' approach that the default punishment under 21 U.S.C. 841 was a felony. Consequently, as was true for federal defendants charged under section 841, petitioner's crime was equivalent to a federal felony where petitioner failed to meet his burden of proving that he was convicted of only misdemeanor conduct. Petitioner's other arguments were without merit. Therefore, the petition for review was denied.

Defendant appealed his sentence of 27 months imprisonment and three years of supervised release for illegal reentry after deportation. The court affirmed the judgment of the district court and held that the staleness of a prior conviction in the proper calculation of a guidelines-range sentence did not render a sentence substantively unreasonable and did not destroy the presumption of reasonableness that attached to such sentences. The court also rejected defendant's contention that the district court erred in failing to accord proper weight to his cultural assimilation.