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

After illegally reentering the United States for the seventh time, defendant was again charged with and pleaded guilty to illegal reentry in violation of 8 U.S.C. 1326(a) and (b)(2), and 6 U.S.C. 202 and 557. On appeal, defendant argued that his sentence was substantively unreasonable. The court held that the district court did not abuse its discretion in failing to grant a downward variance in light of United States v. Jimenez-Perez where the lack of fast-track program was not a basis for a departure under U.S.S.G. 5K3.1. Further, defendant did not argue at sentencing for a downward variance on this ground and the district court committed no plain error in failing to comment sua sponte on the issue.

Defendant plead guilty to illegal reentry after removal and subsequently appealed his 77-month prison sentence as substantively unreasonable. Given defendant's extensive criminal history and weak claim of cultural assimilation, the district court did not abuse its discretion in sentencing defendant to the bottom of the advisory guidelines range. The court also held that lack of a fast-track program was not a basis for a departure under U.S.S.G. 5K3.1 and the district court committed no plain error on that issue. Accordingly, the court affirmed the judgment.

Petitioner, a native and citizen of El Salvador, petitioned for review of the BIA's decision affirming the IJ's denial of his petition for asylum, withholding of removal, and relief under the CAT. The court held that petitioner failed to establish that any mistreatment in MS-13 occurred because of his membership in a particular social group because petitioner's articulated social group was not sufficiently narrowed to cover a discrete class of persons who would be perceived as a group by the rest of society. Accordingly, the court denied the petition.

Defendant, an alien, pled guilty to knowingly and unlawfully reentering the United States after being deported. The district court enhanced defendant's sentence under U.S.S.G. 2L1.2(b)(1)(E) because the court determined that defendant had been convicted of three or more misdemeanor crimes of violence. The court held that the district court properly applied the enhancement where defendant's four assault and battery convictions under Omaha Municipal Code 20-61 qualified as a crime of violence.

Petitioners, three siblings and citizens of Guatemala, petitioned for review of the BIA's dismissal of petitioners' administrative appeal on the merits based on an IJ's denial of their applications for asylum and withholding of removal, as well as the BIA's denial of petitioners' motion to reconsider its prior decision and to reopen the proceedings based on ineffective assistance of counsel. The court held that petitioners did not satisfy the asylum requirement where the refusal to join criminal gangs did not meet the requirements of 8 U.S.C. 1101(a)(42)(A). The court also held that petitioners failed to meet their burden of establishing ineffective assistance of counsel. Accordingly, the BIA did not err in denying asylum and withholding of removal relief and acted well within its discretion in denying the motion to reopen.

Petitioner, a native and citizen of Mexico, petitioned for review of a decision of the BIA that dismissed his appeal, finding that evidence of his alienage was admissible and that removal was proper despite the hardship he alleged it would impose on his family. The court held that, even assuming that the search and seizure here constituted a violation of the Fourth Amendment, any such violation was not egregious. Any evidence ICE obtained, by virtue of petitioner's arrest by local officers, was admissible and sufficient to establish petitioner's alienage and removeability. The court also held that it lacked jurisdiction to review the BIA's hardship determination because it was a discretionary decision barred from appellate review. Accordingly, the court denied the petition.

Petitioner, a citizen of Laos and a lawful permanent resident of the United States, petitioned for review of the BIA's decision affirming the IJ's removal order. The court held that because the Attorney General and the BIA applied section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 1182(c), nunc pro tunc in In re L- and In re G-A- -- cases where an excludable alien had traveled and re-entered before being charged as deportable -- without regard to whether a statutory counterpart was charged in the deportation proceeding, and because the BIA failed to address whether this created a distinct basis for finding an impermissible retroactive effect, the petition for review was granted. The court directed the Attorney General to exercise his section 212(c) discretion to decide whether petitioner warranted a waiver of deportation.

Petitioner, a citizen of Mexico, filed a timely petition for judicial review following removal, asserting that his 2002 burglary conviction was not an aggravated felony that authorized expedited removal. The court held that, although it had jurisdiction to consider the aggravated felony issue under 8 U.S.C. 1252(a)(2)(D), the review was precluded because petitioner did not raise the issue in the administrative removal proceeding and petitioner's claim was based entirely on a post-removal state court order, evidence that was not part of the administrative record on appeal. Accordingly, the court denied the petition for review.

Petitioner, a citizen of the Philippines, petitioned for review of the BIA's conclusion that petitioner's motion to reopen had not been timely filed and no exceptional circumstances warranted exercise of its discretionary authority to reopen proceedings sua sponte. The court held that the BIA did not abuse its discretion in denying the motion to reopen where petitioner failed to file the motion within the statutorily prescribed time limits and, even if petitioner had shown due diligence to excuse her lateness, she had not demonstrated prejudice based on ineffective assistance of counsel. The court also held that it lacked jurisdiction to review the BIA's decision on its own motion whether or not to reopen proceedings, since that decision was committed to agency discretion by law.

Petitioner, a citizen of Nigeria, petitioned for review of the BIA's decision affirming the IJ's denial of asylum, withholding of removal, and relief under the Convention Against Torture. The court held that substantial evidence supported the BIA's determination that petitioner was ineligible for asylum or other relief because he failed to demonstrate past persecution on account of his Christian religion or a well founded fear of future persecution if he were to return to Nigeria. Accordingly, the court denied the petition for review.