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

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.

Petitioner, a citizen of Pakistan, petitioned the court for review of the BIA's decision dismissing his appeal of an IJ's decision ordering him removed from the United States. Petitioner maintained that he was eligible to adjust status under the new second-preference petition his mother had filed for him because he could retain the January 1996 priority date of the original fourth-preference petition filed by his aunt. Using that priority date, a visa was immediately available. The court held that, contrary to the BIA's interpretation in Matter of Wang, the benefits of 8 U.S.C. 1153(h)(3) unambiguously applied to all petitions described in 1153(h)(2), including the fourth-preference visa petition of which petitioner was a derivative beneficiary. Therefore, the court granted the petition for review and remanded for further proceedings.

Petitioner, a citizen of Pakistan, pleaded guilty to unlawful possession of less than two ounces of marihuana. At issue was whether a waiver was available where an applicant had been convicted of two separate offenses of possessing 30 grams or less of marihuana but had already received an 8 U.S.C. 1182(h) waiver relating to the first offense. The court held that based on the plain language of section 1182(h), the implausibility of petitioner's reading, and prior BIA and Fifth Circuit precedent, an alien who had been convicted of two or more offenses of simple possession of 30 grams or less of marihuana was ineligible for a 1182(h) waiver, regardless of whether he previously received a 1182(h) waiver related to one of his offenses. Therefore, the petition for review of the BIA's decision was denied.

Defendant was convicted of unlawfully transporting an illegal alien. Defendant appealed his conviction, specifically the district court's denial of his motion to suppress evidence resulting from a temporary investigative stop by Border Patrol agents on Interstate 35 near Cotulla, Texas. The court held that the circumstances known and the conduct observed by the agents were sufficient to warrant reasonable suspicion justifying the stop. Therefore, the court affirmed the district court's denial of defendant's motion to suppress and affirmed the conviction.

Petitioner, a native and citizen of Nigeria, petitioned for review of the BIA's denial of the motion to reopen and the request to stay the removal order, determining that, pursuant to the fugitive disentitlement doctrine, petitioner's failure to report for removal rendered him ineligible for consideration of additional relief. At issue was whether petitioner was a fugitive under the fugitive disentitlement doctrine. The court was persuaded by the Second and Seventh Circuits and held that petitioner became a fugitive when he did not surrender for removal despite that his address was known to authorities. Therefore, in accordance with the fugitive disentitlement doctrine, the court was barred from further review of the petition and the petition was dismissed.

Defendant pled guilty to illegally reentering the country after having been deported and was sentenced to 51 months imprisonment. On appeal, defendant challenged the district court's imposition of a sixteen-level sentence enhancement under U.S.S.G. 2L1.2. The court held that defendant's previous Colorado criminal conviction for unlawful sexual contact was a "crime of violence" and therefore, affirmed the district court's imposition of the sixteen-level enhancement.

Defendant pled guilty to illegal re-entry into the United States and was sentenced to 46 months imprisonment. At issue was whether the district court erred in applying the sixteen-level enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii) because defendant's prior Arkansas conviction was a "crime of violence." The court found that defendant was previously charged with rape pursuant to section 5-14-103 of the Arkansas Code, but pled guilty to the lesser-included offense of second degree sexual assault pursuant to section 5-14-125 of the Arkansas Code. The court held that convictions for violating subsections (a)(1) and (a)(2) of section 5-14-125 were forcible sex offenses. Therefore, defendant's conviction of second degree sexual assault was a "crime of violence" and the judgment of the district court was affirmed.