Justia U.S. 8th Circuit Court of Appeals Opinion Summaries

Figueroa-Alvarez, a citizen of Mexico, pleaded guilty to illegally reentering the U.S. following removal, 8 U.S.C. 1326(a), a violation punishable by “not more than 2 years” imprisonment. Section 1326(b) authorizes imprisonment “not more than 10 years” if the prior removal “was subsequent to a conviction for commission of . . . a felony,” and “not more than 20 years” if removal was subsequent “to a conviction for commission of an aggravated felony.” Figueroa-Alvarez admitted a pre-removal Iowa conviction for committing third-degree attempted burglary, an “aggravated misdemeanor” punishable by up to two years in prison. He did not admit he committed a “felony.” The court determined that his advisory guidelines sentencing range was 46-57 months in prison, applying an increase in U.S.S.G. 2L1.2(b)(1) for removal following a “felony” conviction because the Guidelines define “felony” as “any federal, state, or local offense punishable by imprisonment for a term exceeding one year.” The court granted a downward departure and variance, and sentenced Figueroa-Alvarez to 36 months in prison. The Eighth Circuit affirmed. Though Iowa classified third-degree attempted burglary as an aggravated misdemeanor, it was punishable by up to two years in prison, and was a felony, as that term is used in 8 U.S.C. 1326(b). View "United States v. Figueroa-Alvarez" on Justia Law

In 2003, Fraser, a citizen of Canada, married a U.S. citizen. In 2006, his wife filed an I-130 Petition to adjust Fraser’s status based on their marriage; Fraser filed an I-485 Application to Register Permanent Residence or Adjust Status. The petition and application were granted in 2007. Weeks later, the Department of Homeland Security determined that Fraser’s application had been approved in error. DHS believed that in 1991, Fraser had been convicted in Canada of possession of cocaine for the purpose of trafficking. Fraser appeared before an Immigration Judge. The government provided a Trial Disposition from Canada dated March, 1991, plus an Information, dated April, 1990, which identified the offense charged as possession of cocaine for the purpose of trafficking. The Trial Disposition did not identify the offense to which Fraser pleaded guilty and for which he was sentenced. The IJ concluded that the documentation presented, in combination, proved by clear and convincing evidence that Fraser had been convicted in Canada of possession of cocaine for the purpose of trafficking and that Fraser was inadmissible at the time of his adjustment of status, 8 U.S.C. 1182(a)(2)(A)(i)(II) and deportable under 8 U.S.C. 1227(a)(1)(A). The BIA and Eighth Circuit dismissed Fraser’s appeals. View "Fraser v. Lynch" on Justia Law

In 2003, Fraser, a citizen of Canada, married a U.S. citizen. In 2006, his wife filed an I-130 Petition to adjust Fraser’s status based on their marriage; Fraser filed an I-485 Application to Register Permanent Residence or Adjust Status. The petition and application were granted in 2007. Weeks later, the Department of Homeland Security determined that Fraser’s application had been approved in error. DHS believed that in 1991, Fraser had been convicted in Canada of possession of cocaine for the purpose of trafficking. Fraser appeared before an Immigration Judge. The government provided a Trial Disposition from Canada dated March, 1991, plus an Information, dated April, 1990, which identified the offense charged as possession of cocaine for the purpose of trafficking. The Trial Disposition did not identify the offense to which Fraser pleaded guilty and for which he was sentenced. The IJ concluded that the documentation presented, in combination, proved by clear and convincing evidence that Fraser had been convicted in Canada of possession of cocaine for the purpose of trafficking and that Fraser was inadmissible at the time of his adjustment of status, 8 U.S.C. 1182(a)(2)(A)(i)(II) and deportable under 8 U.S.C. 1227(a)(1)(A). The BIA and Eighth Circuit dismissed Fraser’s appeals. View "Fraser v. Lynch" on Justia Law

Petitioner traveled from Ethiopia, and entered the U.S. in 2002. He carried a valid Ethiopian passport and non-immigrant visitor’s visa issued under the name Hiko. Shortly thereafter, he sought asylum. Petitioner asserted that the Ethiopian government persecuted him on account of his political opinion, and that he had a well-founded fear of persecution if he were returned. Petitioner claimed that he was detained and beaten because of his membership in the Oromo ethnic group and in retaliation for his support of an organization called the Oromo Liberation Front. Petitioner admitted that he traveled under a false name and the IJ expressed concern about petitioner’s testimony that he was allowed to leave jail to take a school finishing exam during a period of alleged persecution, but granted petitioner’s application for asylum. In July 2006, however, the Department of Homeland Security moved to reopen the case based on newly discovered evidence relating to petitioner’s identity. The IJ granted the motion. Ultimately, the Board of Immigration Appeals denied his application for asylum, withholding of removal, and protection under the Convention Against Torture. The Eighth Circuit affirmed the denials as supported by substantial evidence, but remanded for consideration of a request for voluntary departure. View "Ademo v. Lynch" on Justia Law

Nanic, a citizen of Bosnia-Herzegovina and Croatia, is a practicing Muslim, but he rejects the “Bosniak” label used by governments in the region to describe Muslims in Bosnia. Nanic advocates a unified Bosnia and identifies himself as Bosnian. Nanic entered the U.S. as a nonimmigrant visitor, authorized to stay until June 8, 2007. On June 13, Nanic applied for asylum and withholding of removal, 8 U.S.C. 1158(b)(1)(A), 1101(a)(42)(A). An IJ denied relief. The B IA affirmed, finding that Nanic did not demonstrate that he suffered past persecution in Bosnia-Herzegovina or Croatia, nor did he establish a well-founded fear of persecution if returned. The BIA also rejected Nanic’s contention that the IJ deprived Nanic of due process by receiving testimony of an expert witness about country conditions and considering a document prepared by an asylum officer who interviewed Nanic. The Eighth Circuit upheld the decision as supported by substantial evidence. Nanic’s testimony about warnings from unidentified friends was too vague to compel a finding that he had a well-founded fear that is objectively reasonable, especially when members of his family continue to live in Bosnia-Herzegovina without harm, and Nanic himself returned to the country several times since 2000 without experiencing persecution. View "Nanic v. Lynch" on Justia Law

In 1997, Kosmes pleaded guilty to manslaughter in the U.S. territory of Guam. He was sentenced to 10 years' imprisonment. After his release, Kosmes was deported to Micronesia. In 2014, Homeland Security discovered Kosmes in Arkansas. He pled guilty to illegally reentering the U.S. after deportation, 8 U.S.C. 1326(a). Kosmes filed objections to the presentence investigation report (PSR), arguing that the Eighth Circuit "has left open the question of what mental state attaches to generic manslaughter for purposes of determining whether it should qualify as a crime of violence under U.S.S.G. 2L1.2(b)(1)(A)(ii)." According to Kosmes, because his manslaughter conviction i required only a reckless mental state, rather than an intentional one, the PSR's 16-level enhancement was improper. After the district court noted the "precise issue" has not been resolved by the Eighth Circuit, it held that the manslaughter conviction with a reckless mental state qualified as a crime of violence, calculated an advisory guidelines range of 46 to 57 months, and imposed a sentence of 30 months' imprisonment. The Eighth Circuit affirmed. View "United States v. Kosmes" on Justia Law

Barillas, a citizen of Guatemala, entered the U.S. in 2006 without inspection and sought asylum and withholding of removal (8 U.S.C. 1101(a)(42)(A); 8 U.S.C. 1158(b)), arguing that in Guatemala, he suffered economic and physical abuse by an aunt, with whom he lived while his parents were in the U.S., and a beating by a cousin, that amounted to persecution. He said that police never learned of the abuse, as neighbors never knew about it, and that his mother arranged for him to travel to the U.S. after she visited and observed his living conditions. The IJ denied the application and ordered removal, finding that the allegations did not establish persecution or a well-founded fear of future persecution, that actions by private individuals would not amount to persecution, that Barillas failed to show that the government was unwilling or unable to control them, and, alternatively that Barillas failed to show that the alleged persecution was on account of the protected grounds alleged, political opinion or membership in a particular social group. The Board affirmed. The Eighth Circuit denied a petition for relief, finding that the Board considered the relevant factors, including the age at which Barillas suffered abuse and the cumulative impact of the physical and economic abuse. View "Barillas-Mendez v. Lynch" on Justia Law

Galvez pleaded guilty pursuant to a FastTrack plea agreement to illegal reentry following an aggravated-felony conviction, 8 U.S.C. 1326(a) and (b)(2), waiving the right to appeal his conviction and sentence. Finding that Galvez had previously been deported after a conviction for a felony that was a "crime of violence," (assault with a deadly weapon) the district court applied a 16-level enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii), calculated an advisory Guidelines range of 37–46 months' imprisonment, and sentenced Galvez to 37 months' imprisonment. The Eighth Circuit dismissed an appeal. Nothing in the government's evidence or argument that contradicted the parties' factual stipulation or otherwise breached the plea agreement; the appeal waiver was valid and enforceable. View "United States v. Galvez-Quebedo" on Justia Law

The Department of Homeland Security placed Salas-Caballero, a citizen of Mexico, in removal proceedings. He conceded removability, but applied for cancellation of removal under 8 U.S.C. 1229b(b)(1). He has a nine-year-old son in the U.S. His son’s mother lacked legal status but was not in removal proceedings. His son would not accompany Salas-Caballero if he were removed to Mexico, but would accompany his mother if she were removed to Mexico in the future. The immigration judge rejected his claim of “exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” The Board of Immigration Appels rejected Salas-Caballero’s contention that the IJ did not adequately consider country conditions in Mexico and the possibility that his son would move to Mexico The Eighth Circuit dismissed for lack of jurisdiction to review the discretionary denial. View "Salas-Caballero v. Lynch" on Justia Law

Salazar was convicted in Missouri state court of possessing and trafficking a controlled substance and was deported to Mexico. Salazar subsequently returned to Missouri. After learning that Salazar had reentered, the United States charged him with illegal reentry following a deportation and conviction of an aggravated felony, 8 U.S.C. 1326(a) and (b)(2). Salazar pleaded guilty. The Guidelines range for his offense was 70 to 87 months' imprisonment. Salazar did not object to the calculated Guidelines range; his counsel sought a downward variance to 36 months' imprisonment because Salazar "supported his family," would "have to start his life over after being deported," and was unable to participate in a "FastTrack" program. The court considered his counsel's arguments, and all other relevant sentencing factors, including the nature of the offense and Salazar's lengthy criminal history and multiple convictions for drug-related offenses. The district court imposed and the Eighth Circuit affirmed a sentence of 70 months. View "United States v. Ruiz-Salazar" on Justia Law