Three new immigration opinions

Three published opinions today — all three were immigration appeals, all three involved Hispanic petitioners, all three were decided without oral argument, and all three were government wins.

Bedolla Avila v. AG — immigration — denial — Smith

The Third Circuit issued an opinion applying the convoluted analysis to decide whether a crime counts as an aggravated felony for purposes of removal. First, the court attempts to apply the formal categorical approach to the statute of conviction. But sometimes the statute of conviction is divisible, and in which case the court departs from formal categorical approach and instead uses a modified categorical approach. (If those terms are Greek, they’re explained in the opinion.) Here, the court held that the petitioner was convicted under a divisible statute and used modified categorical analysis to identify the crime of conviction. Having identified the crime he was convicted of, the court then had to decide if it was an aggravated felony, as follows:

there are two independent but valid routes by which an offense may be found to qualify as an aggravated felony. The first, the illicit trafficking route, provides that a crime is an aggravated felony if it is a felony under state law and contains a trafficking element. Id. The second, the hypothetical federal felony route, provides that a crime is an aggravated felony if it would qualify as a felony under the Federal Controlled Substances Act. Id.

Applying the hypothetical federal felony route, the court held that the petitioner’s crime was analogous to possession with intent to distribute cocaine and thus qualified as an aggravated felony.

The court also rejected the petitioner’s argument that simultaneous removal proceedings against a person in front of an immigration judge and the Dept of Homeland Security are prohibited.

Joining Smith was McKee and Hardiman. The case was decided without argument; Sandra Greene of Greene Fitzgerald represented the petitioner.


Frias-Camilo v. AG — immigration — denial — Jordan

A native of the Dominican Republic was a lawful permanent resident for 7 years before pleading guilty to conspiracy to possess cocaine, but he “received no jail sentence, no term of probation, no community service, and owed no fines or fees.” The government in all its wisdom decided to deport him anyway. He argued he was not subject to removal because his guilty plea did not result in any punishment. The Third Circuit disagreed and denied his petition.

Joining Jordan were Ambro and Greenberg. The case was decided without oral argument; counsel for the petitioner was Raymond Lahoud of Barkout & Barkout.


Ordonez-Tevalan v. AG — immigration — denial — Greenberg

A Guatamalen woman twice entered the U.S. illegally and was caught both times. She tried to prevent removal the second time by explaining that she came to the U.S. in order to escape an ex-boyfriend who had raped her and threatened to kill her. The Third Circuit rejected her appeal on 3 independent grounds — the immigration judge’s credibility findings against her, her failure to prove that the abuse she feared was the result of her membership in a protected class, and her failure to prove that her abuse was caused or allowed by an official.

The court did rule against the government on a jurisdictional issue. While the Third Circuit petition was pending, the parties jointly moved to reopen proceedings in the Board of Immigration Appeals (apparently to correct an error in the record), and the BIA issued new orders denying relief on the same grounds as before. The petitioners did not file a new petition challenging the new orders, and the government argued that the Third Circuit lacked jurisdiction to review her challenge to the old orders. The court rejected this argument on the ground that the new orders did not alter the prior decisions.

Joining Greenberg were Jordan and Scirica. The case was decided without oral argument; counsel for the petitioners was Carol Donohoe of Reading, Pa.