Summaries of Selected Opinions
| Publication year | 2023 |
| Pages | 74 |
January, 2023
US Court of Appeals for the Tenth Circuit Summaries of Selected Opinions
No. 20-9645. Zapata-Chacon v. Garland. 10/25/2022. B.I.A. Judge McHugh. Conditional Permanent Resident—Removal—Reopen or Review Case—Reinstatement of Removal Order—Jurisdiction.
Petitioner was a conditional permanent US resident. In 1999, he admitted his removability based on a Colorado conviction for marijuana possession. An immigration judge (IJ) ordered petitioner's removal, but petitioner subsequently illegally reentered the United States three times. In 2020, he filed a motion to reconsider the removal order, arguing that his marijuana possession conviction did not categorically match a federal "controlled substance offense" because Colorado's marijuana definition was broader than the federal definition. An IJ denied the motion, and the Board of Immigration Appeals (BIA) adopted and affirmed the IJ's denial.
On petition for review, the government filed a letter pursuant to Fed. R. App. Proc. 28(j), contending that the IJ and the BIA lacked authority to reopen or review petitioner's proceeding because he illegally reentered the United States. Under 8 USC § 1231(a)(5), the BIA lacks authority to review a prior removal order or to grant any relief under Title 8 once a removed alien illegally reenters the United States. Here, there is no dispute that petitioner illegally reentered the United States on three occasions. Nevertheless, petitioner contended that the government did not timely raise its § 1231(a)(5) argument and that neither the IJ nor the BIA relied on its argument. However, a party may invoke a jurisdictional argument at any time in the proceedings, and petitioner conceded that the argument is jurisdictional.
Petitioner also argued that § 1231(a)(5) is not applicable to him because his 1999 removal order was not reinstated following his most recent illegal reentry. However, the 1999 order was reinstated following petitioner's 2005 illegal reentry, and it sufficiently precludes the BIA from reviewing this case.
The petition for review was denied.
No. 19-2126. United States v. Herrera. 10/27/2022. D.N.M. Judge Bacharach. Violent Crimes in Aid of Racketeering Act—Suppression of Evidence—Prior Bad Acts—Severance of Counts—Severance of Trials—Continuances— Non-Jurisdictional Constitutional Challenge— Impeachment Evidence—Cumulative Error.
The Sindicato de Nuevo Mexico (SNM) is a prison gang that has operated in the New Mexico state prison system for decades. Defendant Baca had headed the SNM, and defendants Sanchez and Herrera had served as mid-level leaders. The government alleged that (1) defendants orchestrated the murder of fellow SNM member Molina and (2) Baca plotted the assassination of two corrections officials to retaliate for their enhancement of security measures after Molina's murder. As to Molina, Baca allegedly had "paperwork" showing Molina's cooperation with law enforcement and arranged for passage of the paperwork to other SNM members at a Las Cruces prison where Molina was housed. Herrera was housed in a pod next to Molina's and allegedly passed the paperwork from Urquizo, who forwarded it to Rodriguez and Sanchez. When the paperwork arrived, SNM members in the Las Cruces prison were to kill Molina. When Sanchez obtained the paperwork, he allegedly organized the killing by obtaining a walker from Perez, ordering Rodriguez to make shanks out of the walker, telling Rodriguez and Martinez to restrain Molina, and ordering Armenta and Montoya to stab Molina.
The district court declared the case complex and ordered the government to disclose materially favorable information. The government responded by producing information long before the trial and supplementing the production right before the trial, during the trial, and even after the trial had ended. Because defendants and many of the government witnesses were in prison, the parties agreed to distribute discovery material through tablets. The government furnished much of the discovery through tablets, which the cooperating witnesses allegedly viewed to coordinate their testimony. After a six-week jury trial, defendants were convicted of conspiring to murder Molina and aiding and abetting that murder. Baca was also convicted of conspiring to murder two corrections officials.
On appeal, defendants argued that the district court should have ordered a new trial because the government waited too long to disclose four items...
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