Illegal Alien Deported Because of Conviction of Insurance Fraud
Anahi Jaquez-Estrada sought review of a decision of the Bureau of Immigration Appeals (BIA) affirming a decision of an Immigration Judge which found her removable to Mexico. In Anahi Jaquez-Estrada, v. William P. Barr, No. 19-9569, United States Court Of Appeals For The Tenth Circuit (August 25, 2020) after being convicted of the crime of insurance fraud, and years of litigation with the United States Jaquez-Estrada was finally deported to Mexico. She appealed the decision to the Tenth Circuit Court of Appeals.
Jaquez-Estrada, a native of Mexico who was brought to the United States in 1995 as a young child without admission or inspection. She is married to a U.S. citizen and has a U.S. citizen child. In February 2015, she applied for and received relief under the Deferred Action for Childhood Arrivals (DACA) program, which deferred any action by the Department of Homeland Security (DHS) until February 2017. She received two DACA extensions until February 2018 when she pled guilty to two counts of insurance fraud (one misdemeanor count and one felony count and received a two-year deferred sentence.
DHS then revoked her DACA deferral. Although Jaquez-Estrada had resided in the United States for a significant period of time before the revocation of her DACA status and initiation of removal proceedings, she was classified as an “arriving alien” under 8 C.F.R. § 1.2, part of the implementing regulations for the Immigration and Naturalization Act (INA).
Because Jaquez-Estrada was an arriving alien, however, jurisdiction to adjust her status lay with the United States Citizenship and Immigration Services (USCIS), not the Immigration Judge (IJ). The IJ instructed Jaquez-Estrada he would not grant any further continuances. She thereafter filed an application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT), and a hearing was set for March 2019. After the March hearing, the IJ denied her requests for relief. She appealed to the BIA, which affirmed the denial.
The BIA affirmed the IJ decision in a detailed decision entered by a single Board member. Section 242 of the INA imposes significant jurisdictional limitations over claims brought by aliens who are found inadmissible by reason of having committed a crime involving moral turpitude. No court has jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered involving a crime involving moral turpitude .
Jaquez-Estrada was found inadmissible by reason of having committed felony insurance fraud. She does not dispute that felony insurance fraud is a crime involving moral turpitude under the INA. She instead argues she is protected by the exception in the statutes. Felony insurance fraud, though, is a class five felony under Colorado law, the maximum penalty for which does exceed imprisonment for one year. The exception in the statute is therefore inapplicable, and the jurisdictional.
Jaquez-Estrada raises several interrelated constitutional claims in connection with the denial of her twelfth request for continuance before the IJ and her designation as an “arriving alien”.
To the extent her due process claims are reviewable, they fail because there is no protected liberty or property interest in obtaining discretionary immigration relief, i.e., adjustment of status. Because aliens do not have a constitutional right to enter or remain in the United States, the only protections afforded are the minimal procedural due process rights for an opportunity to be heard at a meaningful time and in a meaningful manner. Jaquez-Estrada does not assert, and there is no indication in the record to suggest, that she was denied an opportunity to be heard at a meaningful time and in a meaningful manner through her removal proceedings. The Tenth Circuit, therefore, concluded there was no violation of due process in her removal proceedings.
Jaquez-Estrada also argued she was denied due process because the BIA did not review the decision of USCIS to revoke her eligibility for the Deferred Action for Childhood Arrivals (DACA) program. However, the Tenth Circuit’s jurisdiction is limited to final orders of removal. The decision to extend or deny DACA status is not such an order.
Claims for Asylum, Withholding of Removal, and Protection Under the United Nations Convention Against Torture
Jaquez-Estrada also argues the BIA erred in its review of her claims for asylum, withholding of removal, and protection under the CAT. These arguments do not present constitutional claims or questions of law and so do not overcome the jurisdictional bar. She was removed to Mexico and is no longer in the United States.
To the extent the petition alleges Jaquez-Estrada was denied due process before the IJ and BIA, it is denied.
The key to this long, drawn out, and egregious immigration case – regardless of the alleged constitutional arguments – was that Jaquez-Estrada took advantage of her DACA status to commit the crime of insurance fraud, a crime of moral turpitude, that required the US to deport her. She stayed for almost three years by dealing with the system but could not overcome the fact that she was a criminal alien.
© 2020 – Barry Zalma
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and firstname.lastname@example.org.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
Over the last 52 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.
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