The Tenth Circuit Court of Appeals published its opinion in Shepherd v. Holder, Jr. on Tuesday, May 8, 2012.

The Tenth Circuit dismissed the petition for review. “This case is about the government’s repeated efforts to remove Petitioner from the United States on the ground she is a criminal alien. In the initial removal proceeding, the government did not effectively contest [Petitioner]’s claim to automatic citizenship under the Child Citizenship Act of 2000 (CCA), and the Immigration Judge dismissed for lack of jurisdiction. The very next day, the government initiated a new removal proceeding, explaining to the same [judge] that it had made a mistake and now realized that [Petitioner] was too old to qualify under the CCA for citizenship. The [judge] eventually decided that his initial ruling precluded the government from relitigating [Petitioner]’s citizenship or alienage status, and he terminated the proceeding. The government successfully appealed to the Board of Immigration Appeals (BIA), which held that collateral estoppel did not apply and remanded to the [Immigration Judge], who ordered removal.”

On appeal, the Tenth Circuit had to decide whether it had jurisdiction under 8 U.S.C. § 1252(a)(2)(C), which limits judicial review of orders to remove criminal aliens and to “ascertain as a jurisdictional fact whether [Petitioner] is a citizen or an alien, using the procedures that Congress prescribed in 8 U.S.C. § 1252(b)(5) for that purpose.” The Court found that her alien status precludes the Court’s jurisdiction. Her issue preclusion argument based on the Immigration Judge’s first decision is unavailing because administrative collateral estoppel does not apply to the § 1252(b)(5) analysis. Accordingly, her petition for review.

The Tenth Circuit Court of Appeals published its opinion in United States v. Huitron-Guizar on Monday, May 7, 2012.

The Tenth Circuit affirmed the district court’s sentence. Petitioner entered a conditional guilty plea to being an illegal alien in possession of firearms transported or shipped in interstate commerce and was sentenced to 18 months’ imprisonment. Petitioner is to be delivered upon release to an immigration official for deportation. On appeal, he argues that the statute under which he was convicted is unconstitutional and that the district court committed various sentencing errors in applying the Sentencing Guidelines.

The Court disagreed. “[C]ourts must defer to Congress as it lawfully exercises its constitutional power to distinguish between citizens and non-citizens, or between lawful and unlawful aliens, and to ensure safety and order. On this record, § 922(g)(5) withstands [Petitioner]’s Second Amendment and Equal Protection challenges.” Additionally, the district court did not abuse its discretion when it did not apply variances to Petitioner’s sentence.

On February 22, 2012, Rep. Amy Stephens introduced HB 12-1316 – Concerning Bond Conditions when a United States Immigrations and Customs Enforcement Detainer is Lodged Against a Defendant. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, if there is probable cause to believe that a defendant is in the country illegally and he or she is charged with a felony or class 1 or class 2 misdemeanor, the investigating law enforcement agency shall notify the defendant’s bail bond agent. The bill requires notification to a person’s bail bond agent if there is a United States immigration and customs enforcement detainer lodged against the defendant; rather than based on probable cause to believe that a defendant is in the country illegally and a person is charged with a felony or a class 1 or class 2 misdemeanor.

Under current law, a bail bond agent is exempt from having his or her bond forfeited if the defendant is removed from the country, and a bail bond agent is not required to sign a waiver of understanding concerning such forfeiture. The bill requires a bail bond agent to execute a waiver that states he or she understands that if the defendant is removed from the country the bond is forfeited. The bill also requires the bond of the bail bond agent to be forfeited if the defendant is removed from the country.

If a law enforcement agency holding a defendant for a felony or class 1 or class 2 misdemeanor determines that a United States immigration and customs enforcement detainer is lodged against the defendant, the law enforcement agency shall notify the district attorney and any pretrial services agency of the defendant’s presumed immigration status. If the defendant posts bond, the law enforcement agency shall notify the district attorney of the posting of the bond prior to notifying immigration and customs enforcement that the defendant is eligible for release to their custody.

Summaries of other featured bills can be found here.

On February 20, 2012, Rep. Spencer Swalm and Sen. Keith King introduced HB 12-1309 – Concerning the Requirement that All Employers in the State Verify the Work Eligibility Status of New Employees Through the Federal Electronic Verification Program. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, employers are required to examine, and retain records of examining, the legal work status of new employees. The bill enacts the “Colorado Mandatory E-verify Act”, which requires all employers in the state, by January 1, 2013, to instead participate in the federal electronic verification program (e-verify program) for purposes of verifying the work eligibility status of all new employees hired by an employer. Employers are subject to fines of up to $5,000 for a first offense and up to $25,000 for a second offense for failing to participate in the e-verify program. For subsequent offenses, an employer is subject to a fine of up to $25,000 and a six month suspension of the employer’s business licenses.

The department of labor and employment must notify employers via quarterly electronic publications and post a notice on its web site explaining the requirements of the act to employers. Additionally, the bill requires the Secretary of State, in consultation with the department, to include information about the requirements of the act on its web site. On March 22, the Economic and Business Development Committee amended the bill and referred it to the Committee on Agriculture, Livestock, and Natural Resources.

Summaries of other featured bills can be found here.

On Wednesday, March 7, 2012, the Tenth Circuit Court of Appeals issued its opinion in United States v. Antonio-Agusta.

Jose Antonio-Agusta appealed the district court’s application of U.S.S.G. § 2L1.2(b)(1)(A)(ii)’s sixteen-level sentence enhancement in calculating his sentence. He argued the district court erred in relying on the indictment underlying his prior Arizona convictions of aggravated assault to conclude those convictions constituted felony crimes of violence, warranting the enhancement.

The 10th Circuit held the district court did not err, because the indictment was incorporated by reference in the judgment and is therefore reliable evidence of the elements of defendant’s prior aggravated assault convictions. Further, the indictment (as amended by the plea agreement) and judgment made clear Antonio-Agusta was convicted under parts of Arizona’s aggravated assault statutes that constitute crimes of violence.

Affirmed.

On January 20, 2012, Rep. Beth McCann and Sen. Steve King introduced HB 12-1151 – Concerning the Trafficking of Human Beings. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill repeals the interagency task force on trafficking in persons. A person is entitled to recover damages and to obtain injunctive relief from any person who commits trafficking in adults, trafficking in children, or coercion of involuntary servitude (a human trafficking crime). A conviction for a human trafficking crime is not a condition precedent to maintaining a civil action.

A building or part of a building, including the ground upon which it is situated and all fixtures and contents thereof, every vehicle, and any real property that is used for a human trafficking crime shall be deemed a class 1 public nuisance and thereby subject to seizure, confiscation, and forfeiture.

Each escort bureau shall provide to each employee of the escort bureau a written notice that includes a statement that human trafficking and coercion of involuntary servitude are prohibited and the name, telephone number, and internet web site address of a local, statewide, or national organization that provides assistance to victims of human trafficking and slavery.

Current law requires each massage parlor to display at all times in a prominent place on the licensed premises a printed card stating that it is illegal for any person under 18 years of age to be on the premises, or for any person to allow any person under 18 years of age to be on the premises, unless he or she is accompanied by his or her parent or has a physician’s prescription for massage services. The bill requires the card to also state that human trafficking crimes are prohibited and that courts may impose fines or imprisonment for violations of human trafficking crimes. The bill also requires each massage parlor to display a card that provides the name and contact information of a state or local organization that provides services or other assistance to victims of human trafficking.

A court shall order expunged all juvenile delinquency records in the custody of the court and any records in the custody of any other agency or official that pertain to a petitioner’s conviction for prostitution, soliciting for prostitution, keeping a place of prostitution, public indecency, soliciting for child prostitution, or any corresponding municipal code or ordinance if, at the hearing, the court finds that the petitioner has established by a preponderance of the evidence that, at the time he or she committed the offense, he or she had been sold, exchanged, bartered, or leased by another person for the purpose of performing the offense; or that he or she was coerced by another person to perform the offense. A person is eligible to petition for such an expungement order at any time.

A defendant may petition the district court of the district in which any conviction records pertaining to the defendant’s conviction for prostitution, soliciting for prostitution, keeping a place of prostitution, public indecency, or any corresponding municipal code or ordinance are located for the sealing of the conviction records, except for basic identifying information. If such a petition is filed, the court shall order the record sealed after the petition is filed, the filing fee is paid, and the defendant establishes by a preponderance of the evidence that, at the time he or she committed the offense, he or she had been sold, exchanged, bartered, or leased by another person for the purpose of performing the offense; or that he or she was coerced by another person to perform the offense.

An order entered to seal such conviction records shall be directed to each custodian who may have custody of any part of the conviction records that are the subject of the order. Whenever a court enters an order sealing such conviction records, the defendant shall provide the Colorado bureau of investigation (bureau) and each custodian of the conviction records with a copy of the order and shall pay to the bureau any costs related to the sealing of his or her criminal conviction records that are in the custody of the bureau. Thereafter, the defendant may request and the court may grant an order sealing the civil case in which the conviction records were sealed. An order sealing such conviction records shall not deny access to the criminal records of a defendant by any court, law enforcement agency, criminal justice agency, prosecuting attorney, or party or agency required by law to conduct a criminal history record check on an individual. An order sealing such conviction records does not vacate a conviction. A conviction sealed may be used by a criminal justice agency, law enforcement agency, court, or prosecuting attorney for any lawful purpose relating to the investigation or prosecution of any case, including but not limited to any subsequent case that is filed against the defendant, or for any other lawful purpose within the scope of his, her, or its duties. If a defendant is convicted of a new criminal offense after an order sealing such conviction records is entered, the court shall order the conviction records to be unsealed. A party or agency required by law to conduct a criminal history record check is authorized to use any sealed conviction for the lawful purpose for which the criminal history record check is required by law.

A petition to seal such conviction records shall include a listing of each custodian of the records to whom the sealing order is directed and any information that accurately and completely identifies the records to be sealed. Upon the entry of an order to seal the conviction records, the defendant and all criminal justice agencies may properly reply, upon an inquiry in the matter, that public conviction records do not exist with respect to the defendant. Inspection of the records included in an order sealing conviction records may thereafter be permitted by the court only upon petition by the defendant. Employers, state and local government agencies, officials, landlords, and employees shall not, in any application or interview or in any other way, require an applicant to disclose any information contained in sealed conviction records. An applicant need not, in answer to any question concerning conviction records that have been sealed, include a reference to or information concerning the sealed conviction records and may state that the applicant has not been criminally convicted.

The bar committee of the Colorado state board of law examiners (bar committee) is not precluded from making further inquiries into the fact of a sealed conviction that comes to the attention of the bar committee through other means. The bar committee has a right to inquire into the moral and ethical qualifications of an applicant, and the applicant does not have a right to privacy or privilege that justifies his or her refusal to answer a question concerning sealed conviction records that have come to the attention of the bar committee through other means.

The Department of Education may require a licensed educator or an applicant for an educator’s license who files a petition to seal a criminal record to notify the department of the pending petition to seal. The department has the right to inquire into the facts of the criminal offense for which the petition to seal is pending. The educator or applicant has no right to privacy or privilege that justifies his or her refusal to answer any questions concerning the arrest and criminal records information contained in the pending petition to seal.

Any member of the public may petition the court to unseal any file that has been previously sealed upon a showing that circumstances have come into existence since the original sealing, and, as a result, the public interest in disclosure now outweighs the defendant’s interest in privacy. The office of the state court administrator shall post on its web site a list of all petitions to seal conviction records that are filed with a district court. A district court may not grant a petition to seal conviction records until at least 30 days after the posting. After the expiration of 30 days following the posting, the petition to seal conviction records and information pertinent thereto shall be removed from the web site of the office of the state court administrator.

In regard to any conviction of a defendant resulting from a single case in which the defendant is convicted of more than one offense, records of the conviction for prostitution, soliciting for prostitution, keeping a place of prostitution, public indecency, or any corresponding municipal code or ordinance may be sealed only if the records of every conviction of the defendant resulting from that case may also be sealed.

Court orders sealing records do not limit the operations of the Colorado rules of civil procedure related to discovery, the Colorado rules of evidence, certain statutory provisions concerning witness testimony, or any state or federal court.

A person less than eighteen years of age who has been trafficked or coerced into involuntary servitude by an offender is eligible to receive restitution from the offender as part of the offender’s sentence for such an offense.

The amended bill has passed the House and is assigned to the Judiciary Committee in the Senate.

Summaries of other featured bills can be found here.

The Tenth Circuit Court of Appeals published its opinion in United States v. Loya-Rodriguez on Wednesday, February 22, 2012.

The Tenth Circuit affirmed in part and reversed in part the district court’s decision. Petitioner appeals his conviction and sentence for the offense of illegal reentry after deportation subsequent to an aggravated felony conviction. “He contends that the district court denied his Sixth Amendment right to represent himself both at trial and at sentencing.” The Court affirmed Petitioner’s conviction because he failed to make a clear and unequivocal request to represent himself at trial. But the Court remanded to vacate Petitioner’s sentence and then resentence him because he did make such a request to represent himself at sentencing.

Family-based immigrant and nonimmigrant visas are one of the major ways foreign nationals enter, remain, and obtain permanent residence in the United States. The policy behind family-based visas is family reunification. All family-based immigrant visas require a petition to be filed in the United States, proving eligibility for the benefit.

• There are sponsor-based family immigrant visas whereby the petition is only filed by a qualifying family sponsor or petitioner. Such sponsor-based applications involve spouses, parents, children, and siblings of U.S. citizens, and spouses and children of lawful permanent residents (LPRs).

• There are some petitions that do not necessarily require a family sponsor but require a qualifying family relationship to be eligible for this “self-petition.” Such petitions would involve those exposed to domestic violence who qualify under the Immigration and Nationality Act (INA).

• Widowers and other qualified family members of deceased petitioners may be eligible as self-petitioners as well.

Whether sponsor-based or self-based, the petition must first be filed and approved. A visa must be available before the foreign national can obtain a visa or adjust status to permanent residence. At this stage, the foreign national applicant must meet certain admissibility requirements to enter on a visa or to obtain permanent residence in the United States, unless waived under certain circumstances. One of these admissibility requirements, public charge, is applicable to all family-based immigrant applications and requires the submission of an affidavit of support. After obtaining permanent residence, some family members are subject to a two-year condition and must take proactive measures in the future to maintain their residence in the United States.

If you are a family law or immigration law practitioner, consider attending this short, 90-minute presentation to get the fundamentals of family-based immigration on February 6, 2012. The program, Family-Based Immigration: An Introduction to Concepts and Procedures, will cover:

• Qualifying relationships to sponsor a family member
• The process for those family members sponsored
• The Affidavit of Support requirement
• Other options to family sponsorship
• Conditional Residence Status
• K-1 Fiancé Visas
• The concept of admissibility

This program is based on a chapter from the new CBA-CLE book, Immigration Law for the Colorado Practitioner. This indispensable reference, written with the Colorado lawyer in mind, covers a wide range of practice issues, providing the orientation, analysis, and authorities for immigration lawyers and lawyers whose practice overlaps with immigration law. Click here for more information about the book.

A free portion of the Family-Sponsored Immigration chapter, written by the program’s faculty, Catherine O. Brown, is available below for your reference, along with details about the program.

Family-Sponsored Immigration Chapter Segment

The Tenth Circuit Court of Appeals published its opinion in Contreras-Bocanegra v. Holder, Jr. on Monday, January 30, 2012.

The Tenth Circuit granted the petition for review and vacated the Board of Immigration Appeals’ decision. Petitioner, a citizen of Mexico, became a lawful permanent resident of the United States in 1989. Two years later, he received a suspended jail sentence for attempted possession of a controlled substance. In 2004, the Department of Homeland Security detained him upon his return from a visit to Mexico and placed him in removal proceedings on the ground that his conviction rendered him inadmissible. An Immigration Judge ordered him removed from the United States, and the Board affirmed. The Tench Circuit subsequently denied Petitioners’ petition for review. From Mexico, Petitioner filed a timely motion to reopen his removal proceedings based on ineffective assistance of counsel. The Board denied the motion on jurisdictional grounds, “concluding pursuant to the post-departure bar that it lacked authority to review a motion to reopen filed by a noncitizen outside of the United States.” He then “petitioned for review of the Board’s decision, arguing that 8 C.F.R. § 1003.2(d) improperly curtails his right under 8 U.S.C. § 1229a(c)(7) to file a motion to reopen. . . . [T]he panel denied his petition, concluding that it was bound by circuit precedent to uphold the post-departure bar,” relying on Rosillo-Puga, 580 F.3d 1147 (10th Cir. 2009).

The Tenth Circuit granted rehearing en banc to reconsider its decision in Rosillo-Puga, and now overturns it and its progeny. The en banc rehearing considered “whether the so-called postdeparture bar regulation at 8 C.F.R. § 1003.2(d) remains valid in this circuit considering Congress’ 1996 amendment to the Immigration and Nationality Act. The amended Act grants noncitizens the right to file one motion to reopen their immigration proceedings. However, the Board of Immigration Appeals contends that it lacks jurisdiction to consider motions to reopen filed by individuals who have already departed the United States, despite the fact that such a limitation appears nowhere in the statutory text.”

In Rosillo-Puga v. Holder, a divided Tenth Circuit panel upheld the post-departure bar as an authorized exercise of the Attorney General’s rulemaking authority. However, since then, six circuits have consecutively invalidated the regulation. “Rather than stand alone in upholding the post-departure bar, [the Tenth Circuit chose] to overturn Rosillo-Puga, . . . [holding] that the subject regulation impermissibly interferes with Congress’ clear intent to afford each noncitizen a statutory right to pursue a motion to reopen under 8 U.S.C. § 1229a(c)(7).”

The Tenth Circuit Court of Appeals published its opinion in United States v. Ventura-Perez on Wednesday, January 18, 2012.

The Tenth Circuit affirmed the district court’s decision and sentence. Petitioner pleaded guilty to illegal reentry after deportation subsequent to an aggravated-felony conviction. On appeal, he raises two challenges. “First, he contends that the district court miscalculated his offense level under the Sentencing Guidelines. The court increased his offense level by 16 on the ground that his Texas conviction of burglary of a habitation was for ‘burglary of a dwelling’ and therefore a crime of violence.” Second, he contends that when the court imposed its sentence, it improperly refused to consider sentencing disparities created by fast-track programs in other districts.

The Court disagreed with Petitioner’s contentions. The Court held that “even if the Texas offense of burglary of a habitation encompasses more than burglary of a dwelling, the particulars of [Petitioner]’s prior conviction are relevant and his counsel admitted at sentencing in federal court that he had been convicted of burglary of an apartment, which is clearly burglary of a dwelling. . . . On the second contention we follow recent circuit precedent and hold that [Petitioner] cannot complain of sentencing disparities because he did not present to the sentencing court any evidence that he would have been eligible for fast-track treatment in another district.”