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SAMARITAN NEWSLETTER – 06-24-2024

The Law Office of Tom Norrid

SAMARITAN PROJECTS LLC

P.O. Box 9244

Springfield, MO 65801-9244

417-236-1179

 

The SAMARITAN-PROJECTS prepares post-conviction and compassionate release motions along with appeals under the direction of Attorney Tom Norrid. The Samaritan-Projects’ newsletter reports every winning published district court and court of appeals case for the week in review.  Rusty – 417 901 3000 – Eddie 417 818 1938.

 

CR.RIS/MEDICAL. The Southern District of Florida granted a CR.RIS motion in United States v. Mary Stapleton, 2024 U.S. Dist. LEXIS 109704 (S.D. Fla. June 21, 2024). July 18, 2017, Stapleton plead guilty to bank robbery in violation of 18 USC2113(a). In the proffer, Stapleton admitted entering a SunTrust Bank in Pompano Beach, Florida, and then walking up to a bank teller and handed the teller a note which read: "this is a hold up, put $2,000 in the envelope, no dye pack." As the bank had just opened, the teller explained there was very little money and gave Stapleton $100, which she took and then left the bank. Stapleton was then living in a transitional housing facility and had recently been released from prison for bank robbery. On Sept. 26, 2017, the Court sentenced Stapleton to 151 months.The Government agreed that defendant's medical conditions qualify as extraordinary and compelling for compassionate release under USSG 1B1.13(b)(1)(B)(i). The medical records reveal that she is suffering from a serious medical condition that substantially diminishes her ability to provide self-care within the environment of a correctional facility and from which she is not expected to recover. Specifically, defendant is diagnosed with Aphasia—the loss of ability to understand or express speech due to brain damage, hypertension, hyperlipidemia, hypothyroidism, muscle spasm, type II diabetes, and seizure disorder. She is bedbound, incontinent, and requires 24-hour total care to manage all aspects of her activities of daily living. A neurological examination confirms left spastic hemiplegia and disorientation to place and time. She is classified as a BOP medical level care 4, the highest care level. Sentence reduced to time served.

 

CR.RIS/MEDICAL. The District of Nevada granted a CR.RIS motion in United States v. Louis Petrossi, 2024 U.S. Dist. LEXIS 108637 (D. Nev. June 20, 2024). Petrossi is serving a 100-month and three-day sentence after he was convicted for three counts of fraud in the Middle District of Pennsylvania. That sentence was consolidated with a sentence imposed in the Eastern District of New York, and the sentences were ordered to be served concurrently, with the three days to run consecutively. Petrossi was also sentenced to a three-year term of supervised release to follow his custodial term, also to be served concurrently for all counts across both cases. After serving part of his sentence in the Federal Bureau of Prisons satellite facility in Terra Haute, Indiana and a half-way house in San Francisco, California, Petrossi's consolidated cases were transferred to the District of Nevada in December 2023. He is currently placed in the Federal Location Monitoring Program ("FLMP"), through which he resides at his home in Reno, Nevada, under the intensive supervision of the District of Nevada Probation Office. Petrossi is 83 years old and suffers from numerous serious health conditions. Among other complications, he has been diagnosed with chronic myeloid non-curable leukemia ("CML"), diabetes, aortic atherosclerosis, basal skin cancer, congestive heart failure, chronic plural effusions, chronic renal disease, glaucoma, goat, aortic valve replacement (performed in prison), hypercholesteremia, recurrent gum disease, mild concentric left ventricular hypertrophy, persistent proteinuria, bladder carcinoma, type 2 diabetes, stage 2 chronic kidney disease, and depression. He contracted COVID-19 twice in prison, with lasting symptoms. Petrossi is currently under the care of numerous medical providers, including a cardiologist and oncologist, while on FLMP placement. He also requires physical therapy, and his physical therapy records reflect that he attended at least 12 physical therapy visits in Reno as of April 15, 2024, and that physical therapy would ideally include swimming-based treatment. Defendant filed this Motion seeking a reduction in his sentence to time served because of his age and his serious illnesses, and because his physical therapy needs exceed the limits of FLMP supervision. Sentence reduced to time served.

 

CR.RIS/DISPARITY/REHABILITATION/MEDICAL/STACKING. The Eastern District of Virginia granted in part a CR.RIS motion in United States v. James Baylor, 2024 U.S. Dist. LEXIS 109384 (E.D. Va. June 20, 2024). On March 1, 2011, James Baylor, along with his brother Troy Baylor, was charged in a thirteen-count indictment. The Indictment spoke to two armed robberies: one on Nov. 30, 2010, and a second on Dec. 21, 2010.The Court sentenced James Baylor to a term of 514 months, the low end of the then-applicable guideline range. In the Motion for Compassionate Release, Baylor discusses his rehabilitation while in prison, the sentencing disparity resulting from his stacked 924(c) convictions, and the advanced age of eighty years old that he will be when released from prison. In support of his claims of rehabilitation, Baylor references his completion of several programs aimed towards recovery and rehabilitation, as well as his participation in educational programs such as legal research. Baylor also contends that, if sentenced today, Count Twelve would result in a term of 84-months, rather than 300-months, due to Congress ending the practice of stacking multiple 18 USC 924(c) convictions in the same prosecution. Baylor requests a reduction of his sentence to 298 months. Baylor states that he has used a wheelchair for the past three years, "has had two toes amputated, cannot move his left fingers, and has glaucoma in one eye." Baylor is also involved with his family and with the church and believes that his "robust family network will allow him to transition back into the community safely and effectively." Sentence reduced to 305-months.

 

APPEAL/CR.RIS/CAREER OFFENDER. The Fourth Circuit vacated and remanded United States v. Eric Smith, 2024 U.S. App. LEXIS 14768 (4th Cir. June 18, 2024). Eric Smith appealed the district court’s order denying his 18 USC 3582(c)(1)(A) motion for compassionate release. The district court found that Smith failed to demonstrate extraordinary and compelling reasons for relief. The court vacated the district court’s order and remanded for further proceedings. In considering a compassionate release motion, “district courts must determine: (1) whether extraordinary and compelling reasons warrant such a reduction; and (2) that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” United States v. Malone, 57 F.4th 167, 173 (4th Cir. 2023). “Only after this analysis may the district court grant the motion if (3) the relevant 18 USC 3553(a)factors, to the extent they are applicable, favor release.” On appeal, Smith first argued that the district court erred in determining that his arguments for compassionate release based on COVID-19 did not constitute extraordinary and compelling reasons for relief. The court acknowledged that Smith’s age and health conditions, in conjunction with COVID-19, weighed in favor of a finding that he had demonstrated extraordinary and compelling reasons for relief. A compassionate release motion cannot be used to challenge the validity of a defendant’s conviction or sentence. While we recognize that the district court did not have the benefit of our decision in Davis, that case makes clear that it was an abuse of discretion to decline to consider Smith’s argument that, if sentenced today, he would no longer be considered a career offender and would be afforded application of Amendment 782. In his compassionate release motion, Smith did not argue that the district court erred at sentencing. Rather, he argued that, if sentenced today, his Guidelines range would be significantly lower. Because Smith’scareer offender argument was appropriate in the compassionate release context, the court vacated the district court’s order and remanded for further proceedings for the district court toconsider this argument.

 

CR.RIS/FAMILY CIRCUMSTANCES. The Eastern District of Michigan granted a CR.RIS motion in United States v.Christopher Allison, 2024 U.S. Dist. LEXIS 106477 (E.D. Mich. June 14, 2024). Allison was charged and convicted of one count of Possession of a Firearm by a Convicted Felon in violation of 18 USC 922(g)(1). After pleading guilty as charged, on June 30, 2022, the Court sentenced Allison to 45 months imprisonment.Allison filed a pro se motion for compassionate release citing his mother's failing health and need for his care. Allison's mother requires round-the-clock assistance and palliative care. (Allison's mother noting her son "was my caregiver prior to incarceration," and that "I have no one available to help me[.]").The Court will not require Allison to prove a negative. Allison need not be the only imaginable caregiver; it is sufficient that he is the only available caregiver. The Court found that any benefit to be gained by keeping Allison in prison for the remainder of his sentence is outweighed by the failing health of his mother and her need for Allison to act as her caretaker. Sentence reduced to time served.

 

APPEAL/2241. The Eleventh Circuit reversed and remanded Robert Harris v. Warden, FCC Coleman – USP I, 2024 U.S. App. LEXIS 14667 (11th Cir. June 17, 2024). Robert Harris appealed the dismissal of his petition for a writ of habeas corpus. 28 USC 2241. The district court ruled that it lacked jurisdiction to consider Harris’s petition. Because the court concluded that the district court erred by not

considering all Harris’s claims for relief, the court vacated and remanded for further proceedings. In 1999, Harris was convicted of conspiring to import and possessing with intent to distribute cocaine and marijuana and sentenced to four concurrent terms of 600 months of imprisonment. In 2000, he was convicted of conspiring to distribute cocaine, conspiring to commit money laundering, and maintaining a place to manufacture and distribute crack cocaine and was sentenced to a concurrent life term. In 2001, he filed a motion to vacate, 2255, which the district court denied with prejudice. He filed other motions to vacate, which were dismissed as successive. In 2023, Harris filed a petition for a writ of habeas corpus. He asserted that the remedy under section 2255 would be inadequate because he had not “had an opportunity to test the legality of his detention as it is also inadequate in seeking to recover jail credit time, good time credit and immediate release.” He raised four grounds for relief. He argued that he is being unlawfully detained for conduct not criminalized by his statute of conviction and because an earlier state conviction illegally enhanced his sentence. He argued that his enhanced sentences should be “made void” and that he “should recover jail credit time and good time credit [] against the valid and possible 20 year maximum term imposed upon him, and he should be immediately released from unlawful custody . . . on a combination of grounds, including the elimination of the [] statutory enhancement . . . and the length of time he has served.” He requested relief from fines and forfeitures assessed as part of his “unconstitutional sentence and [] conviction.” The district court dismissed the petition for lack of jurisdiction. It ruled that instead of challenging the execution of his sentence, Harris’s “four grounds for relief” challenged the legality of his convictions and sentences and must be brought in a motion to vacate. 2255. The district court explained that although the saving clause of section 2255(e) permits a federal prisoner to challenge his sentence in a habeas petition when “the remedy by motion is inadequate or ineffective to test the legality of his detention,” 2255(e), Harris failed to establish that his petition satisfied the saving clause. The district court did not address the other nine claims in Harris’s “amended petition.”The district court erroneously omitted from its consideration the claims for relief raised in Harris’s “amended petition,” which was attached to his petition form. After Harris raised the issue of good time and jail time credits again in his motion for reconsideration, the district court acknowledged that Harris was “correct that []he does not need authorization to bring these [time-credit] claims,” but it incorrectly found that he “did not seek restoration of good time and jail time credit in his 2241 petition.” The district court erred in requiring Harris to allege these “belated[]” claims in a new action. Although the district court might determine that it still lacks jurisdiction if it finds that Harris’s unaddressed claims for relief do not fall within the saving clause, the court must vacate the judgment without prejudice “whenever the district court has not resolved all such claims.”

 

APPEAL/2254/IAC, The Sixth Circuit vacated and remanded Deshawn Boylan v. Burgess, 2024 U.S. App. LEXIS 15189 (6th Cir. June 20, 2024). A Michigan jury convicted Deshawn Boylan of first-degree felony murder for his part in Jacob Rameau’s death. After his unsuccessful state-court appeals, Boylan brought this pro se petition seeking habeas relief. A magistrate judge (presiding by consent) conditionally granted the writ on the second of two grounds, concluding that Boylan’s trial counsel had rendered ineffective assistance by not moving to quash the felony-murder charge on collateral estoppel grounds. The court vacated the order granting habeas relief because Boylan has not demonstrated that the state court’s decision involved an unreasonable application of Strickland v.Washington, 466 U.S. 668, 687 (1984).

 

APPEAL/SUPERVISED RELEASE/TERMINATION. The Eleventh Circuit vacated and remanded United States v. Joseph Jackson, 2024 U.S. App. LEXIS 14587 (11th Cir. June 17, 2024). Joseph Jackson appealed the district court’s denial of his motion for early termination of supervised release under 18 USC3583(e)(1). He argued that the district court’s order was insufficient to allow for meaningful appellate review. After thorough review, the court vacated and remanded for further proceedings. In December 2008, the district court reduced Jackson’s sentence to 240 months under U.S. Sentencing Guidelines Amendment 706. In July 2015, Jackson completed his prison term and began serving his ten-year term of supervised release. In June 2018, his case was transferred to the Southern District of Florida, where he would serve the remainder of his supervised release term. In October 2018, Jackson moved for early termination of supervised release. The court denied his motion in a paperless order, based on its “review of the motion, the record, and being fully advised in thepremises.” Jackson’s appeal was dismissed for want of prosecution. In Nov. 2022, Jackson filed the instant motion, seeking once again early termination of supervised release. He reported that since his release from prison in July 2015, he had not committed any supervised release violations; in fact, the U.S. Probation Office agreed -- in a letter quoted by Jackson about its position on his motion for early termination -- that he had “maintained stable residence with his family members and as of August 2019, he has owned and operated Live Life Love Handymen, LLC, a labor company[; and h]e recently obtained a Certified Driver License.” The district court’s order is insufficient for the court to determine if it considered all the factors made relevant by 3583(e)(1), if it considered improper factors, or if it made a clear error of judgment based on the information it considered. Accordingly, the court vacated and remanded for further proceedings consistent with this opinion.

 

APPEAL/DISCOVERY. The Second Circuit remanded United States v. Dennis Bradley, 2024 U.S. App. LEXIS 14743 (2d Cir. June 18, 2024). The case involves defendants Dennis A. Bradley, Jr., and Jessica Martinez, who were charged with wire fraud and conspiracy to commit wire fraud in relation to Bradley’s 2018 campaign for Connecticut state senator. The Government obtained two videos from videographers hired by Bradley, one 13-minute video and a 28-minute video, both of which were recorded at an event where Bradley announced his campaign. The Government only became aware of the existence of the 28-minute video a week before the trial and promptly provided it to the defendants. Bradley moved to preclude the 28-minute video, arguing that the Government had violated Rule 16(a)(1)(E) by not obtaining and producing the video earlier.The District of Connecticut granted Bradley's motion ruling that the Government had violated its disclosure obligations by not obtaining and producing the 28-minute video at an earlier date. The Government appealed this decision arguing that it did not have the video in its possession, custody, or control until the eve of the trial. The Second Circuit reversed the district court's order. The court held that neither Rule 16(a)(1)(E) nor the Connecticut District Court’s Standing Order imposed a requirement on the Government to discover and turn over to a criminal defendant evidence that the Government did not have in its physical possession, custody, or control, or that it did not have a duty to obtain from a third party. The case was remanded for further proceedings consistent with this opinion.

 

APPEAL/PLEA AGREEMENT. The Fourth Circuit vacated and remanded United States v. Vera Dunlap, 2024 U.S. App. LEXIS 14789 (4th Cir. June 18, 2024). The case involves Vera and Trecika Dunlap, a mother and daughter who pleaded guilty to jury tampering. The Dunlaps had followed a juror from a separate criminal trial involving their family members and offered him money in exchange for a not-guilty vote. They entered into plea agreements under Federal Rule of Criminal Procedure 11(c)(1)(C), agreeing to serve twelve months and one day of incarceration. However, they argued that the district court accepted the plea agreements but then imposed a higher sentence than that stipulated in the plea agreements. The district court, which had presided over the trial during which the jury tampering occurred, expressed hesitation about imposing the stipulated sentence due to the seriousness of the offense. The court determined that it would reject the plea agreement provision that required a sentence of a year and a day, believing it was not a sufficient sentence for the offense under the circumstances. The court then informed the Dunlaps that they had the right to withdraw their plea and calculated the applicable guidelines range to be 46 to 57 months. The court eventually sentenced each of the Dunlaps to 36 months. The Fourth Circuit held that when the record is ambiguous as to whether a district court accepted or rejected a Rule 11(c)(1)(C) plea agreement, such ambiguity must be construed in the defendant’s favor. The court concluded that the record in this case was ambiguous and thus construed it in the manner urged by the Dunlaps. Accordingly, the court deemed the district court to have accepted (and been bound by) the terms of the plea agreements between the Dunlaps and the Government. The court vacated the judgments and remanded the case with instructions to reenter the judgments consistent with the terms of the plea agreements and this opinion.

 

APPEAL/SENTENCE. The Seventh Circuit vacated and remanded for resentencing United States v. Joseph Van Sach, 2024 U.S. App. LEXIS 14945 (7th Cir. June 20, 2024). Joseph Van Sach who is a federal prison inmate was sentenced to 87 months for assaulting a correctional officer. The incident occurred when Van Sach refused to comply with orders to submit to hand restraints, leading to the use of pepper spray and physical restraint by officers. Later, Van Sach punched a correctional officer in the eye, causing severe swelling, sharp pain, and bruising. He was subsequently convicted by a jury of one count of forcible assault on a federal officer. The probation officer prepared a presentence report recommending the base offense level for aggravated assault, along with several enhancements, resulting in a total offense level of 25 and a criminal history category of III. This calculation yielded a guideline range of 70 to 87 months in prison. The Government objected to the report, seeking a higher sentence due to the officer's persistent headaches and extreme physical pain. However, the district court overruled the Hovernment'sobjection and adopted the guidelines calculation as set forth in the report, sentencing Van Sach to 87 months in prison. On appeal to the Seventh Circuit, both Van Sach and the government agreed that the district court erred in applying the guideline provision for aggravated assault, as the correctional officer did not suffer serious bodily injury. They argued that the court should have used a different guideline provision, which would have resulted in a lower guidelines range of 24 to 30 months. The Government conceded the error but argued it was harmless because the district court considered other factors in sentencing. However, the appellate court found the error was not harmless and vacated Van Sach's sentence, and remanded the case for resentencing using the correct guideline provision.

 

APPEAL/SENTENCE. The Eleventh Circuit vacated and remanded for resentencing United States v. Deunate Jews, 2024 U.S. App. LEXIS 14976 (11th Cir. June 20, 2024). DeunateTarez Jews appealed his 51-month sentence for one count of possession of a firearm by a convicted felon. Jews argued that the district court imposed a substantively unreasonable sentence because it gave undue weight to an impermissible factor by treating Alabama state law as binding when crafting his federalsentence. After consideration, the court agreed with Jews. The court vacated his sentence and remanded. Alabama’s Youthful Offender (“YO”) statute provides that no determination made under its provisions shall disqualify any youth from public office or employment, impair the youth’s rights to receive any license granted by public authority, or be deemed a conviction of crime. Ala. Code 15-19-7(a). However, “if he is subsequently convicted of crime, the prior adjudication as youthful offender shall be considered.” Jews argued that the district court considered an impermissible factor when it said that Alabama law “required” it to consider the YO adjudication as his sentencing because federal law, not state law, governs federal sentencing. The court agreed. The district court imposed an unreasonable sentence because the court gave significant weight to Alabama law

by stating that it was “required” under Alabama law to considerJews’s YO adjudication, rather than grounding its determination in the 18 USC 3553(a)

factors.

 

APPEAL/EVIDENCE. The Eleventh Circuit remanded for a new trial United States v. James Harding, 2024 U.S. App. LEXIS 14995 (11th Cir. June 20, 2024). James Harding was charged with conspiracy to possess with intent to distribute heroin and possession with intent to distribute heroin. The charges stemmed from a conspiracy that allegedly took place in the Southern District of Alabama between early 2018 and April 2019. During the trial the United States introduced evidence from a separate investigation that took place over two years after the alleged end of the charged conspiracy. This evidence, which was found at Harding's home in the Northern District of Alabama included multiple firearms and almost two kilograms of heroin. The district court admitted this evidence as intrinsic to the charged conspiracy and, alternatively, as admissible under Federal Rule of Evidence 404(b). Harding was found guilty of both charges. The Eleventh Circuit found that the district court abused its discretion by admitting the evidence from the separate investigation as intrinsic to the charged conspiracy. The court reasoned that the evidence did not arise from the same transactions, was not necessary to complete the story of the charged offenses, and was not inextricably intertwined with the charged offenses. The court also found that the district court abused its discretion by failing to provide a limiting instruction regarding the evidence from the separate investigation. The court concluded that the errors were not harmless and could have influenced the jury's verdict. As a result, the court vacated Harding's convictions and sentence and remanded the case for a new trial.

 

APPEAL/RESTITUTION. The Eleventh Circuit vacated the restitution award in United States v. Paula Hornberger, 2024 U.S. App. LEXIS 14972 (11th Cir. June 20, 2024). George Cavallo and Paula Hornberger were convicted of participating in a mortgage-fraud scheme involving the use of falsified information on loan applications. At sentencing the district court originally ordered Cavallo and Hornberger to pay more than $13 million in restitution, stemming from ten properties, to multiple banks under the Mandatory Victims Restitution Act, 18 USC3663A. In a prior appeal, the court affirmed their convictions and sentences but the court vacated the restitution orders and remanded for the district court to determine the actual loss of any identifiable victims. United States v. Cavallo, 790 F.3d 1202, 1240 (11th Cir. 2015). On remand, after considerable delay, the district court entered amended judgments awarding $7,321,913.80 in restitution to multiple banks or their successors in interest. Cavallo and Hornberger again appeal the orders of restitution. The Government conceded that it failed to properly establish nearly all of the $7.3 million loss amount, but it asks us to affirm a lesser restitution amount based on one of the ten properties at issue. Cavallo and Hornberger contend that no restitution should have been awarded because the Government waited too long and failed to meet its burden of proof for successor lender victims under United States v. Martin, 803 F.3d 581 (11th Cir. 2015). The court agreed with the parties that the Government failed to prove any losses to successor lenders, which covers nine of the ten properties for which restitution was awarded. The court therefore reversed the restitution award as to those nine properties. But because no successor lender was involved in the tenth and final property, the Government’s proof was sufficient to sustain those losses. The court affirmed the district court’s finding of a loss of $332,530 in relation to that property. The court rejected the argument that, given the delay, the district court should not have imposed restitution.

 

APPEAL/1983/DELIBERATE INDIFFERENCE. The Sixth Circuit reversed and remanded in Timothy Turner v. Helen Long, 2024 U.S. App. LEXIS 14881 (6th Cir. June 17, 2024). In this 42 USC 1983 prisoner civil-rights case, Timothy Turner, raised three constitutional claims: (1) an Eighth Amendment unsanitary-conditions-of confinement claim for being forced to wear ripped, stained, and rancid paper-boxer underwear for three straight weeks; (2) a Fourth Amendment claim for violation of bodily privacy for having to wear badly torn paper boxers leaving him exposed; and (3) an Eighth Amendment deliberate-indifference claim arising from the actions of a prison official who allegedly told another inmate that Turner was a confidential informant, after which inmates assaulted Turner for being a “snitch.”

The district court granted summary judgment in favor of the defendants on all claims. The court reversed and remanded to the district court Turner’s Eighth Amendment prison-conditions claim; Turner’s Fourth Amendment bodily-privacy claim; and Turner’s Eighth Amendment claim for deliberate indifference.

 

APPEAL/1983/FALSE IMPRISONMENT. The Eighth Circuit remanded Michael Jones v. City of St. Louis, 2024 U.S. App. LEXIS 14596 (8th Cir. June 17, 2024). Michael Jones, a pretrial detainee, filed a lawsuit against the City of St. Louis and four city employees alleging that they held him in custody for eight months after his criminal charges were dismissed and failed to inform him of his right to be released. Jones's lawsuit, filed under 42 USC 1983, included claims under both state and federal law. The defendants moved to dismiss all fourteen counts of the lawsuit. The district court dismissed seven counts, leaving no federal due process claims against the individual defendants at issue on appeal. The defendants appealed the denial of their motion to dismiss the remaining counts arguing that Jones failed to allege plausible constitutional violations and that they were entitled to qualified immunity from damage claims. The Eighth Circuit reviewed the denial of qualified immunity de novoaccepting the factual allegations in Jones's First Amended Complaint as true. The court found that Jones failed to allege specific facts of personal involvement in, or direct responsibility for, a deprivation of his constitutional rights by the individual defendants. The court also found that Jones's allegations that the defendants "should have known" that he was incarcerated despite his charges being dismissed failed to state a claim under either the Fourth Amendment or the Due Process Clause. The court reversed the denial of qualified immunity and directed that the remaining counts be dismissed with prejudice. The case was remanded for further proceedings consistent with the court's opinion. The court did not rule on the state law claims of false imprisonment, leaving that for the district court to resolve on remand.

 

APPEAL/IMMIGRATION. The Fourth Circuit vacated and remanded Virginia Garcia Cortez v. Garland, 2024 U.S. App. LEXIS 14652 (4th Cir. June 17, 2024).

The petitioner, Virginia Garcia Cortes, is a Mexican citizen, sought review of a Board of Immigration Appeals decision affirming an Immigration Judge's denial of her application for cancellation of removal. The Immigration Judge and Board of Immigration Appeals denied Garcia Cortes’s application on the basis that she failed to make the requisite showing under 8 USC1229b(b)(1)(D) that her removal would impose “exceptional and extremely unusual hardship” on her daughter. The Immigration Judge found that Garcia Cortes satisfied the first three statutory eligibility requirements for cancellation of removal. However, he rejected Garcia Cortes’s request after concluding that she could not satisfy the fourth statutory requirement—whether her removal would impose “exceptional and extremely unusual hardship” on a family member who was an American citizen or lawful permanent resident. The Immigration Judge ordered that Garcia Cortes either voluntarily leave the country or be removed. Garcia Cortes appealed to the Board of Immigration Appeals (“the Board”). A divided three-member panel of the Board adopted and affirmed the Immigration Judge’s decision.The Fourth Circuit concluded that the facts as found by the Immigration Judge do not support a determination that Garcia Cortes’s daughter would suffer exceptional and extremely unusual hardship if Garcia Cortes was removed. However, because the Immigration Judge failed to consider key portions of a therapist’s letter that was central to Garcia Cortes’s argument, the court vacated and remanded for further proceedings.

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