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BIA Clarifies Standard for Marriage Fraud

The Board of Immigration Appeals has issued a new decision clarifying the standard for denying an I-130 petition based on marriage fraud. The standard of proof necessary to bar the approval of a visa petition based on marriage fraud is substantial and probative evidence. This standard is more than a preponderance of evidence, and closer to (but less than) clear and convincing evidence. Both direct and circumstantial evidence may be considered in determining whether there is substantial and probative evidence of marriage fraud, and circumstantial evidence alone may be sufficient to constitute substantial and probative evidence.

The central question in determining whether a sham marriage exists is whether the parties intended to establish a life together at the time they were married. Such a determination requires an examination of the conduct of the parties before and after the marriage to ascertain their intent, but only to the extent that it bears upon their subjective state of mind at the time they were married.

A sworn statement by the parties admitting that the marriage is fraudulent, that money changed hands, and that the couple did not intend to live together or consummate the marriage is direct evidence of fraud that is substantial and probative. However, an admission or other such direct evidence is not necessary to establish marriage fraud.

Where there are some minor inconsistencies and the documentary evidence is limited, they should be considered in assessing whether there is fraud, but these factors, without more, would not likely be sufficient to satisfy the substantial and probative evidence standard for marriage fraud. Evidence that the parties knowingly and deliberately attempted to mislead or deceive immigration officials regarding their cohabitation, joint finances, or other aspects of the marriage strongly indicate fraud. Detailed reports from on-site visits and field investigations are especially important pieces of evidence that may reveal the presence of fraud. Evidence that the parties have other romantic partners, with whom they may have children, is also a significant consideration, especially when these facts are either not disclosed or are deliberately concealed. Statements from family members, employers, or acquaintances indicating they do not know about the marriage or that the parties told them the marriage is a sham are additional indicia of fraud. Other circumstantial evidence that may support a finding of marriage fraud includes evidence that one or both parties have been filing taxes as single persons during the marriage or otherwise holding themselves out to be single while representing to immigration officials that they are still married. Official Government documents indicating fraud carry more evidentiary weight than informal evidence of a bona fide marriage, such as insurance policies or bank account statements.

Where there is evidence that the petitioner has been married to several beneficiaries, especially if a connection between the petitioner and a former spouse has continued through joint property ownership, finances, or benefits, the likelihood of the beneficiary’s involvement in a fraudulent scheme should be considered. Affidavits alone will generally not be sufficient to overcome evidence of marriage fraud in the record without objective documentary evidence to corroborate the assertions made by the affiants.

The full text of Matter of P. Singh can be found here:

https://www.justice.gov/eoir/page/file/1197521/download

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Eleventh Circuit Addresses Jurisdictional Challenge to NTA Missing Time and Date of Hearing

The Eleventh Circuit has determined that a challenge to a Notice to Appear missing the time and date of the first removal hearing is a claim-processing challenge, not a jurisdictional challenge. As such, the claim needed to be raised before the agency.

The court rejected the agency’s asylum analysis. The Immigration Judge had determined that one central reason for the Gulf Cartel’s persecution of the petitioner was to collect on a debt owed by his father-in-law, but then stated that the family relationship was merely “incidental” to the persecution. The court disagreed, stating that “it is impossible to disentangle his relationship to his father-in-law from the Gulf Cartel’s pecuniary motives: they are two sides of the same coin. The record is replete with evidence that the Gulf Cartel sought out and continuously extorted Mr. Perez-Sanchez because of his father-in-law’s past history with the cartel.” “Absent the familial relationship between Mr. Perez-Sanchez and Mr. Martinez-Carasco, the cartel would never have hunted him and his partner down to begin with or continued persecuting them for months.”

The full text of Perez-Sanchez v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201812578.pdf

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Ninth Circuit Determines that Federal Courts Lack Jurisdiction to Review Denial of National Interest Waivers

The Ninth Circuit has determined that the federal district courts lack jurisdiction to review U.S. Citizenship and Immigration Services’ denial of a national interest waiver because such decisions are within the discretion of the Secretary of Homeland Security. Applicants can still raise constitutional claims.

The full text of Poursina v. USCIS can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/28/17-16579.pdf

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Ninth Circuit finds that Federal Conviction for Second-Degree Murder is not Crime of Violence

The Ninth Circuit has determined that a conviction for second-degree murder under 18 U.S.C. §§ 1111 and 1153 is not a crime of violence under federal sentencing law because it can be committed recklessly (with a depraved heart mental state). Given the similar definitions of a crime of violence in the federal sentencing context and the immigration context, this case may have persuasive value in immigration litigation.

The full text of United State v. Begay can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/19/14-10080.pdf

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Ninth Circuit Affirms Right to Counsel in Administrative Removal Proceedings for non-LPR Convicted of Aggravated Felony

The Ninth Circuit has determined that 8 U.S.C. § 1228, which governs expedited removal proceedings for noncitizens convicted of committing aggravated felonies, and through which non-citizens can request reasonable fear interviews, explicitly provides that non-citizens have the privilege of being represented, at no expense to the government, by counsel. As such, the Immigration Judge erred by not getting a waiver of the petitioner’s right to counsel during the review of a negative reasonable fear determination. The petitioner was not required to show prejudice from the violation of his statutory right to counsel to prevail on his due process claim.

The full text of Zuniga v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/20/16-72982.pdf

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Ninth Circuit Reverses Denial of Continuance

The Ninth Circuit has reversed the agency’s denial of a continuance to allow the petitioner to update his fingerprints, in light of his attorney’s erroneous advice that his fingerprints were still up-to-date, even though the judge had advised the petitioner at the prior hearing that he needed to update his fingerprints.

“[I]f an alien fails to provide updated fingerprints to DHS ‘because of an attorney,’ the alien’s reliance on the lawyer’s advice may constitute the requisite ‘good cause’ for a continuance under 8 C.F.R. § 1003.29. Here, because the lawyer’s bad advice post-dated the IJ’s instructions, Petitioner’s reliance on the later advice was especially reasonable. For example, the fingerprint requirements might have changed since his last hearing, including by lengthening the period during which fingerprints were valid or by allowing the California Department of Justice to send fingerprints to DHS. If the lawyer’s bad advice had preceded the IJ’s instructions, we might reach a different result.”

The full text of Pleitez-Lopez v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/23/16-73656.pdf

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Ninth CIrcuit Finds that NV Conviction for Attempted Battery with Substantial Bodily Harm is Crime of Violence

The Ninth Circuit has determined that a Nevada conviction for attempted battery with substantial bodily harm is a crime of violence under the sentencing guidelines because it requires the defendant to have a specific intent both to commit battery and to bring about substantial bodily harm. Nevada defines “substantial bodily harm” as either “(1) [b]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ; or (2) [p]rolonged physical pain.”

“When someone intends to inflict prolonged pain, even relatively minor pain, it is highly improbable that they would choose to do so through the use of nonviolent force, which could easily fail to accomplish their goal. And for the same reason, it is equally improbable that Nevada prosecutors would be able to secure convictions for attempted battery with substantial bodily harm in cases in which the defendant tried to use only a touch or other nonviolent force.”

Given the similar definitions of a crime of violence under the sentencing guidelines and in immigration law, this decision could have persuasive impact in immigration litigation.

The full text of United States v. Fitzgerald can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/26/18-10116.pdf

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Ninth Circuit Defers to BIA's Whistleblowing Framework

The Ninth Circuit has deferred to the Board of Immigration Appeals’ (Board) decision in Matter of N-M-, in which the Board developed a three-factor test for application for asylum based on whistleblowing activities. The three factors are: (1) whether and to what extent the alien engaged in activities that could be perceived as expressions of anticorruption beliefs; (2) any direct or circumstantial evidence that the alleged persecutor was motivated by the alien’s perceived or actual anticorruption beliefs, and (3) evidence regarding the pervasiveness of government corruption, as well as whether there are direct ties between the corrupt elements and higher level officials.

The full text of Singh v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/27/15-73940.pdf

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Ninth Circuit Withdraws Opinion in Lopez-Aguilar

The Ninth Circuit has granted a motion for panel rehearing and withdrawn its opinion in Lopez-Aguilar v. Barr, in which it determined that an Oregon third-degree robbery conviction is a theft offense.

My original blog post on Lopez-Aguilar can be found here:

http://www.sabrinadamast.com/journal/2019/4/27/ninth-circuit-finds-that-or-3d-deg-robbery-conviction-is-theft-offense

The order granting the motion for rehearing can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/29/17-73153.pdf

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Ninth Circuit Finds that MN Aiding & Abetting Simple Robbery Conviction is Violent Felony

The Ninth Circuit has determined that a Minnesota conviction for aiding and abetting simple robbery is a violent felony under the Armed Career Criminal Act (ACCA) because the statute requires the defendant to use the amount of force necessary to overcome a victim’s resistance. Given the similarity between the definition of a violent felony under the ACCA and a crime of violence in the immigration context, this decision could have persuasive value in immigration litigation.

The full text of Ward v. United States can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/03/17-35563.pdf

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Ninth Circuit Rules on Rights of Derivative Beneficiaries to Receive Review of Denied I-829

The Ninth Circuit has determined that derivative beneficiaries of an alien entrepreneur in the immigrant investor program, who receive conditional legal permanent resident status, are entitled to the same review rights in removal proceedings as the alien entrepreneur of a denied petition to remove the conditions on their residence. As such, the agency erred by refusing the request of the daughter of the entrepreneur to review the denial of the petition to remove the conditions, when the entrepreneur had been removed in absentia, ant thus, could not make a request for review himself.

The full text of Mu v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/04/16-71292.pdf

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Ninth Circuit Limits Circumstances in which Minor's OSC must be Served on Adult

The Ninth Circuit has limited the circumstances in which an Order to Show Cause served on a minor must also be served on a responsible adult. Previously, the court had held in Flores-Chavez v. Ashcroft that when immigration authorities detain a juvenile, and subsequently release the juvenile to a responsible adult, the Order to Show Cause must also be served on that adult. However, the court determined that the same rule does not apply when the minor was never detained, files for asylum, and is subsequently served with an Order to Show Cause.

“Nonetheless, the calculation differs here, and not just because Petitioner is slightly older than Flores-Chavez was. Petitioner himself set in motion the procedures leading to his hearing by filing an affirmative asylum application and by appearing before an asylum officer. These facts suggest that the risk of error in Petitioner’s situation is less than the risk of error in Flores-Chavez’ situation. More importantly, no adult ever entered an agreement with the government to assume responsibility for Petitioner. It is unclear with whom Petitioner lived at the time of his deportation hearing, including whether anyone at his residence was over the age of 18. It is equally unclear that notice to an adult living at his residence (if there was one) would have added any safeguards to the process, because we cannot know whether that adult would have been willing to take the kind of responsibility that was statutorily assigned in Flores-Chavez. Without researching the details of every minor’s situation, it is impossible to know whether a particular minor over the age of 14 resides with an adult and if so, whether serving the OSC on that adult will be any more effective in ensuring the minor’s attendance at the hearing than serving notice on the minor.” “Requiring the government to provide notice to a responsible adult living with a never-detained juvenile over the age of 14 assumes that there is such a person and that the person can be identified.” “Balancing all the factors, the burden on the government outweighs the interest of never-detained minors over the age of 14, at least those who have filed an affirmative request for relief.”

The full text of Cruz Pleitez v. Barr can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/18/15-72876.pdf

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Ninth Circuit Finds that OR First-Degree Armed Robbery is not Violent Felony

The Ninth Circuit has determined that an Oregon conviction for first-degree armed robbery is not a violent felony under the Armed Career Criminal Act (ACCA) because the statute does not require the defendant to overcome resistance by the victim through the use of force, but rather, the victim need not feel much of anything during the offense. In addition, although the statute requires the defendant to possess a deadly weapon during the commission of the robbery, the statute does not require the use of the weapon or that the defendant make any representations about the weapon. As such, the court found that the mere possession of the deadly weapon did not amount to the threatened or attempted use of violent force.

The court also assumed that the statute is divisible between offenses where the defendant “Is armed with a deadly weapon” and offenses where the defendant “uses or attempts to use a dangerous weapon.” The records did not specify under which sub-statute the petitioner was convicted in this matter.

Given the similarity between the definition of a violent felony under the ACCA and the definition of a crime of violence in the immigration context, this case may have persuasive value in immigration litigation.

The full text of United States v. Shelby can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/19/18-35515.pdf

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Fifth Circuit Finds that TX Possession of Controlled Substance with Intent to Deliver is a Controlled Substance Violation

The Fifth Circuit has determined that a Texas conviction for possession of a controlled substance with intent to deliver is a controlled substance violation. In so doing, the court rejected the petitioner’s claim that the statute is overbroad because it includes offers to sell counterfeit drugs. Instead, the court found that a defendant must offer to sell a real drug, even if the actual drug delivered is counterfeit.

The full text of Olguin Padilla v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/18/18-60509.0.pdf

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Fifth Circuit Defers to Matter of A-B-

The Fifth Circuit has deferred to the Attorney General’s decision in Matter of A-B-, and rejected a domestic violence-based protection claim. The court also determined that the injunction in Grace v. Whitaker only enjoins the application of Matter of A-B- in credible fear interviews, not in removal proceedings. Thus, the injunction poses no impediment to the Fifth Circuit evaluating the validity of the decision in the context of a removal proceeding.

The full text of Gonzalez-Veliz v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/18/18-60174-CV0.pdf

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Third Circuit Addresses Transmission of Citizenship by Father to Child Born out of Wedlock

The Third Circuit has determined that the laws governing transmission of citizenship to a child born out of wedlock to a U.S.-citizen father, whose mother is deceased, and who was born in a jurisdiction where the death of the mother legally precludes the father from legitimizing the child, violate equal protection.

Petitioner Jose Francisco Tineo was born in the Dominican Republic to unwed noncitizen parents who never married. His father moved to the United States and naturalized. His noncitizen mother soon after passed away. At the time, under the law of either his or his father’s residence or domicile—the Dominican Republic and New York—legitimation could only occur if his birth parents married. Under the immigration laws, a naturalized mother can transmit her citizenship to her out-of-wedlock child, regardless of whether the father is alive; whereas a naturalized father in the same position has the additional requirement of having to legitimate the child in order to transmit his citizenship. Thus, the petitioner in this matter was left unable to receive citizenship from his father because his mother was deceased, eliminating the only avenue of legitimation in the Dominican Republic.

The court declared that the petitioner is, in fact, a U.S. citizen, by applying the standards applicable to children born out of wedlock to U.S.-citizen mothers to his situation.

The full text of Tineo v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/161461p.pdf

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Third Circuit Remands for Application of Particularly Serious Crime Standard; Opportunity to Submit Corroborating Evidence

The Third Circuit has remanded a case in which the agency determined a fraud conviction resulting in losses to the victims in excess of $1,000,000 was a particularly serious crime without considering whether the elements of the offense bring the conviction within the ambit of a particularly serious crime. The court also determined that the Immigration Judge had not specified what corroborating evidence she believed was missing, nor given the applicant a chance to obtain that evidence. This error also required remand.

The full text of Luziga v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/172444p.pdf

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Second Circuit Construes Changed Circumstances Exception to One Year Filing Deadline for Asylum

The Second Circuit has determined that once an applicant for asylum demonstrates changed circumstances related to some aspect of her asylum claim - thus, excusing her from compliance with the one-year filing deadline - the immigration court must consider all aspects of her asylum claim, not just those related to the changed circumstances.

The full text of Yang v. Barr can be found here:

http://www.ca2.uscourts.gov/decisions/isysquery/8dbbcd48-6c17-44c0-906e-41e67cca61ea/13/doc/16-3478_complete_Amd_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8dbbcd48-6c17-44c0-906e-41e67cca61ea/13/hilite/

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