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CA Appeals Court Addresses Standard of Review for 1473.7 Appeal

The California Court of Appeal, Fourth Appellate District, has determined that a mixed standard of review applies to appeal of 1473.7 motions. The appellate court will uphold the trial court's factual findings if they are supported by substantial evidence and will exercise independent judgment on the legal issues. The court further determined that in August 2000, there was no obligation for defense counsel to specifically advise a defendant that a plea would result in exclusion from admission or denial of naturalization or to negotiate an immigration-neutral plea.

The court confined the decision in People v. Soriano to stand for the proposition that an attorney cannot give incorrect advice when asked about immigration consequences, but did not to create an independent duty to research and advise about immigration consequences.

The court also distinguished the duty to negotiate alternative pleas in People v. Bautista. “Gonzalez has presented no evidence that a more immigration favorable disposition was available in his case. Nor did he offer an expert opinion that Guerrero's representation of him fell below an objective standard of reasonableness at the time Gonzalez pled guilty. “

The decision in People v. Gonzalez can be found here:

http://www.courts.ca.gov/opinions/documents/D073436.PDF

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Third Circuit Finds that Detainees in Reinstatement Proceedings are Entitled to Bond Hearings

The Third Circuit has held that a reinstated order of removal against a person who has initiated withholding-only proceedings is administratively final. Therefore, this person’s detention is governed by 8 USC § 1231(a). The court further determined that it “may be the case that the Due Process Clause prohibits prolonged detention under § 1231(a)(6) without a bond hearing.” However, the court ultimately stated that “[i]n order to avoid determining whether Guerrero Sanchez’s detention violates the Due Process Clause, we adopt the Ninth Circuit’s limiting construction of § 1231(a)(6) that an alien facing prolonged detention under that provision is entitled to a bond hearing before an immigration judge and is entitled to be released from detention unless the government establishes that the alien poses a risk of flight or a danger to the community. Critically, our holding today necessarily applies to all aliens detained under § 1231(a)(6), not just those, like Guerrero-Sanchez, who have reinstated removal orders under § 1231(a)(5) and are pursuing withholding-only relief.” The court held that the Department of Homeland Security would have the burden in these bond proceedings of demonstrating by clear and convincing that the non-citizen is a flight risk or a danger to the community. Finally, the court determined that detention becomes prolonged at the six-month mark, triggering the need for this bond hearing.

The full text of Guerrero-Sanchez v. Warden York County Prison can be found here:

http://www2.ca3.uscourts.gov/opinarch/164134p.pdf

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BIA Finds that IJ has Initial Jurisdiction over Aged-Out UAC

The Board of Immigration Appeals has determined that an unaccompanied minor who turns 18 before filing an asylum application must file the application with the Immigration Judge. In such instances, the Immigration Judge has initial jurisdiction over the asylum application, not the Asylum Office.

The full text of Matter of M-A-C-O- can be found here:

https://www.justice.gov/eoir/page/file/1101226/download

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BIA Addresses Conditions in Prison and Mental Health Facilities as a Form of Torture

The Board of Immigration Appeals has determined that “where the evidence regarding an application for protection under the Convention Against Torture plausibly establishes that abusive or squalid conditions in pretrial detention facilities, prisons, or mental health institutions in the country of removal are the result of neglect, a lack of resources, or insufficient training and education, rather than a specific intent to cause severe pain and suffering, an Immigration Judge’s finding that the applicant did not establish a sufficient likelihood that he or she will experience torture in these settings is not clearly erroneous.”

“The evidence of record indicates that the substandard conditions in mental health facilities, pretrial detention, and prisons in Mexico are the result of neglect, lack of resources, or insufficient training and education. In light of this evidence, and recognizing the Mexican Government’s efforts to improve those conditions, we will uphold the Immigration Judge’s finding that the respondent has not shown that it is more likely than not that he will experience acts of torture specifically intended to inflict severe physical or mental pain or suffering on him by or at the instigation of, or with the consent or acquiescence of, a Mexican public official or an individual acting in an official capacity.”

The full text of Matter of J-R-G-P- can be found here:

https://www.justice.gov/eoir/page/file/1106661/download

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BIA Finds that K-1 Entrant Cannot Adjust without Affidavit of Support from K-1 Petitioner

The Board of Immigration Appeals has determined that an individual who enters the United States on a fiance visa, marries the petitioner, but divorces before adjusting status to lawful permanent residence, cannot adjust unless the fiance visa petitioner signs an affidavit of support.

The full text of Matter of Song can be found here:

https://www.justice.gov/eoir/page/file/1112411/download

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Eleventh Circuit Construes Stop-Time Rule for Lawful Permanent Residents

The Eleventh Circuit has determined that a lawful permanent resident not seeking admission can still trigger the stop-time rule (which stops the accrual of continuous residence required for cancellation of removal) if he is convicted of an offense that renders him inadmissible. In so doing, the court joined the Second, Third, and Fifth Circuits, while diverging from the Ninth Circuit.

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

http://media.ca11.uscourts.gov/opinions/pub/files/201713055.pdf

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Ninth Circuit Analyzes Travel Act under Categorical Approach

The Board of Immigration Appeals (“BIA”) concluded that Myers is removable based on his felony conviction under the Travel Act, 18 U.S.C. § 1952(a)(3), for traveling in interstate commerce to facilitate an unlawful activity. The unlawful activity facilitated by Myers was identified as “possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1).” The BIA held that Myers is removable under 8 U.S.C. § 1227(a)(2)(B)(i) because he had been convicted of a controlled substance offense. “Although not all convictions under the Travel Act represent violations related to controlled substances, meaning that the statute is not a categorical match to the removal statute, we conclude that the Travel Act is divisible in that respect. We further conclude that Myers’s conviction qualifies as a controlled substance offense under the modified categorical approach.” The court noted that In the Ninth Circuit, a specific “unlawful activity” is an element of a Travel Act offense.

Myers also sought relief in the form of cancellation of removal under 8 U.S.C. § 1229b. The BIA concluded that Myers is ineligible for that relief because he had not been present in the United States prior to the initiation of the removal proceedings against him for the number of years required under the statute. The court noted that the statute states that the relevant time period ends “when the alien is served a notice to appear.” 8 U.S.C. § 1229b(d)(1). The BIA used the date on which the notice to appear was issued, not the date when it was served on Myers.

The full text of Myers v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/25/17-71416.pdf

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Ninth Circuit Finds H-1B Holder Ineligible for Adjustment of Status

Ma’s employer filed for an extension of his H-1B visa, but it was denied, and his employer failed to file an application for status adjustment within 180 days of the expiration of his H-1B visa. Because the application to extend the H-1B visa was denied, Ma was without lawful status in this country for 331 days before he applied to adjust his status—well over the 180 days permitted by 8 U.S.C. § 1255(k)(2)(A), which would have otherwise protected him from removal. He was, however, legally authorized to work in the country during the months between the expiration of his H-1B visa and the denial of his application for an H-1B extension pursuant to 8 C.F.R. § 274a.12(b)(20). Nonetheless, because 8 C.F.R. § 1245.1(d) does not recognize regulatory employment authorization as conferring lawful immigration status for purposes of status adjustment under 8 U.S.C. § 1255(k)(2)(A), the court concluded that Ma is ineligible for status adjustment.

“While nonimmigrant workers like Ma may legally continue working in this country for up to 240 days while they wait to hear back from the USCIS on their extension applications, they do not have lawful status during this period of time for purposes of status adjustment.

The full text of Ma v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/02/15-73520.pdf

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Ninth Circuit finds Lewd and Lascivious Acts Conviction is not CIMT or Crime of Child Abuse

The Ninth Circuit has determined that a conviction under California Penal Code 288(c)(1) (lewd and lascivious acts on a child who is 14 or 15 years old when the defendant is at least 10 years old than the the child) is neither a crime involving moral turpitude nor categorically a crime of child abuse. A crime under § 288(c)(1) contains five elements: (1) willfully and lewdly; (2) committing any lewd or lascivious act; (3) on a child ages 14 or 15; (4) with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the defendant or the child; and (5) the defendant must be at least ten years older than the child.

The “lewd or lascivious” element of the crime focuses on the defendant’s sexual intent, rather than the act performed. If the defendant has the required intent, then any touching violates § 288, even if the touching is outwardly innocuous and inoffensive. Physical affection among relatives, generally considered acceptable conduct, nonetheless could satisfy the ‘any touching’ aspect of section 288. Even constructive touching can violate § 288(c)(1). If the minor touches himself, that act is imputable to the defendant as if the touching had been actually done by his own hands. A person may violate § 288(c)(1) by making sexual requests over the telephone, or through text messages.

The mens rea requirement of § 288(c)(1) has also been expansively construed. Section 288(c)(1) requires that the defendant act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or of the minor. But the statute does not require that the defendant know that the minor is underage. Under California law, a good faith and reasonable mistake of age is a defense to statutory rape, but it is not a defense to a charge under § 288(c)(1).

Because § 288(c)(1) requires only sexual intent, and because a good-faith reasonable mistake of age is not a defense, a defendant is not required to have evil or malicious intent. Section 288(c)(1) thus lacks the corrupt scienter requirement that is the touchstone of moral turpitude. Nor does § 288(c)(1) require intent to injury or actual injury. Any touching, even if consensual, outwardly innocuous and inoffensive, and innocently and warmly received, can violate § 288(c)(1). Section 288(c)(1) does involve a protected class of persons—minors aged 14 or 15. But not all criminal statutes intended to protect minors establish crimes involving moral turpitude, if the conduct at issue is relatively minor.

“We hold that § 288(c)(1) is not categorically a crime involving moral turpitude. Because the statute contains a single, indivisible set of elements, the modified categorical approach does not apply.”

The BIA defines crime of child abuse, child neglect, or child abandonment as a “unitary concept” that encompasses “any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child’s physical or mental well-being, including sexual abuse or exploitation.” The “maltreatment” element requires either proof of actual injury or proof of a “sufficiently high risk of harm to a child.”

Section 288(c)(1) is broader than the generic definition of a “crime of child abuse” in two ways. First, the generic definition requires that a defendant act with a mens rea of at least criminal negligence. Section 288(c)(1) has no such requirement. It requires a defendant to have acted “willfully,” but this requirement applies only to the defendant’s commission of the act. Section 288(c)(1) requires only that a defendant did not act accidentally; it does not “require any intent to violate law, or to injure another, or to acquire any advantage.”

Second, § 288(c)(1) does not require proof of actual injury, or a “sufficiently high risk of harm,” as an element of the offense. Section 288(c)(1) applies irrespective of whether the touching is outwardly innocuous, or whether the minor is aware of the nature of the contact at all. “We hold that Cal. Penal Code § 288(c)(1) is not categorically a ‘crime of child abuse’ under 8 U.S.C. § 1227(a)(2)(E)(i).”

The full text of Menendez v. Whitaker can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/08/14-72730.pdf

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Ninth Circuit Rejects Vagueness Challenge to Particularly Serious Crime Bar

The Ninth Circuit has revisited its jurisprudence regarding whether the particularly serious crime bar is unconstitutionally vague. The court recognized that the Supreme Court’s most recent case law on vagueness rules out the legal standard that‘a statute is void for vagueness only if it is vague in all its applications. Nevertheless, even with this updated case law in mind, the court found the statute not to be unconstitutionally vague.

“We know with certainty that a minor traffic infraction is not particularly serious and that a heinous, violent crime is particularly serious. But for the crimes in between, the statute provides little guidance. Instead, the statute provides an uncertain standard to be applied to a wide range of fact-specific scenarios. In that sense, the standard is uncertain. But that kind of uncertainty does not mean that a statute is unconstitutionally vague. Many statutes provide uncertain standards and, so long as those standards are applied to real world facts, the statutes are almost certainly constitutional.”

“Critically, the particularly serious crime inquiry in 8 U.S.C. § 1231(b)(3)(B)(ii) applies only to real-world facts. Unlike many standards in the immigration context, the particularly serious crime inquiry requires the BIA to assess what the alien actually did.”

The full text of Guerrero v. Whitaker can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/09/15-72080.pdf

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Ninth Circuit Denies Petition for Rehearing En Banc on the CIMT Vagueness Case

The Ninth Circuit has declined a request for rehearing on the issue as of whether the term “crime involving moral turpitude” is unconstitutionally vague. In so doing, the Court also confirmed that a federal conviction for bribery is a crime involving moral turpitude because the statute requires a “corrupt mind.”

The full text of Martinez de Ryan v. Whitaker can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/16/15-70759.pdf

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Ninth Circuit Remands Rodriguez Case to District Court

The Ninth Circuit has remanded its seminal prolonged detention case, Rodriguez v. Marin, to the District Court for further proceedings. The case was remanded to the Ninth Circuit from the Supreme Court, who reversed the Ninth Circuit’s statutory construction, but who left open the possibility that the Constitution compels regular bond hearing for immigration detainees.

On remand, the District Court must address:: (1) whether the class certified by the district court should remain certified for consideration of the constitutional issue and available class remedies; (2) whether classwide injunctive relief is available under 8 U.S.C. § 1252(f)(1); (3) whether a Rule 23(b)(2) class action (a) remains the appropriate vehicle in light of Walmart Stores, Inc. v. Duke, 564 U.S. 338 (2011), and (b) whether such a class action is appropriate for resolving Petitioners’ due process claims; (4) whether composition of the previously identified subclasses should be reconsidered; (5) the minimum requirements of due process to be accorded to all claimants that will ensure a meaningful time and manner of opportunity to be heard; and (6) a reassessment and reconsideration of both the clear and convincing evidence standard and the six-month bond hearing requirement.

The full text of Rodriguez v. Marin can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/19/13-56706.pdf

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Eighth Circuit Determines that Missouri Second-Degree Domestic Assault is not a Crime of Violence

The Eighth Circuit has determined that a Missouri second-degree domestic assault conviction that criminalizes recklessly causing injury to a household member does not qualify as a crime of violence. The court noted that the statute encompassed reckless driving, which is outside the scope of a crime of violence under the federal sentencing guidelines. Given the similar definitions of a crime of violence under the sentencing guidelines and the immigration law, this case could have persuasive value in the immigration context.

The full text of US v. Harris can be found here:

http://media.ca8.uscourts.gov/opndir/18/11/172868P.pdf

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Eighth Circuit finds that North Dakota Aggravated Assault Statute is not a Crime of Violence

The Eighth Circuit has determined that a North Dakota conviction for aggravated assault is overbroad and divisible with respect to the definition of a crime of violence under the sentencing guidelines. The court determined that subsection (a) of the statute includes reckless driving, which is outside the definition of a crime of violence. Given the similarity between the definition of a crime of violence in the immigration context and the sentencing guidelines, this case could have persuasive value in the immigration context.

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

http://media.ca8.uscourts.gov/opndir/18/09/173034P.pdf

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Sixth Circuit Upholds Habitual Drunkard Good Moral Character Bar

The Sixth Circuit has determined that the bar to good moral character for being a “habitual drunkard” does not violate equal protection. However, the court also determined that suffering from alcoholism alone does not constitute being a habitual drunkard. Instead, a court must examine if the individual’s alcoholism is also associated with harmful conduct.

The full text of Tomasczcuk v. Whitaker can be found here:

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0254p-06.pdf

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Fifth Circuit Denies Motion to Reopen for Petitioner who Failed to Correct his Address

The petitioner was served with a Notice to Appear bearing an incorrect address - the name of his street was misspelled. The petitioner did not file a change of address form to correct the misspelling, though he claimed that he had provided the correct address to the immigration official. The Immigration Court mailed a notice of hearing to the misspelled address, the petitioner did not attend his hearing, and he was order removed in absentia. He later moved to reopen his proceedings, and his motion was denied.

The Fifth Circuit affirmed the agency’s decision. “An alien’s statutory obligation to keep the immigration court apprised of his current mailing address includes an obligation to correct any errors in that address listed on the NTA.”

The full text of Mauricio-Benitez v. Sessions can be found here:

http://www.ca5.uscourts.gov/opinions/pub/17/17-60792-CV0.pdf

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Fifth Circuit Applies Addition of Drug to CSA Prospectively Only

The petitioner was arrested for possession of AB-CHMINACA. While his criminal case pending, AB-CHMINACA was added to the federal controlled substance schedules. The petitioner subsequently pled guilty. He was later charged with inadmissibility for the conviction. He challenged that finding, arguing that penalizing him for conduct involving the substance prior to the addition of the substance to the CSA was impermissible retroactive. The Fifth Circuit agreed.

The full text of Lopez Ventura v. Sessions can be found here:

http://www.ca5.uscourts.gov/opinions/pub/17/17-60529-CV0.pdf

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Fifth Circuit Prohibits Use of Convictions Entered after Naturalization as Basis for Removal

Okpala was a naturalized US citizen when he was convicted of various drug offense. He was subsequently denaturalized, and the Department of Homeland Security sought to use the drug convictions as a basis for removing him. The Fifth Circuit reversed, finding that the convictions were entered while Okpala was a US citizen, and as such, could not be used as predicate offenses to remove him. The court focused on the language of the aggravated felony statute as requiring “an alien” to be convicted after admission..

The full text of Okpala v. Whitaker can be found here:

http://www.ca5.uscourts.gov/opinions/pub/17/17-60391-CV0.pdf

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Third Circuit Examines New Jersey Drug Trafficking Convictions

The Third Circuit has determined that a New Jersey convictions for possessing cocaine with intent to distribute, distributing cocaine, and conspiring to possess cocaine with intent to distribute all qualify as drug trafficking aggravated felonies. In so doing, the court held that New Jersey attempt law is coextensive with federal law in that both require a substantial step that strongly corroborates the actor’s criminal purpose, and both hold that solicitation can count as a substantial step. The court recognized that its decision created a circuit split with the Ninth Circuit on the definition of attempt under the Controlled Substances Act.

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

https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1827&context=thirdcircuit_2018

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Third Circuit Requires Notice and an Opportunity to Present Corroboration

The Third Circuit has reaffirmed that an applicant for asylum, withholding of removal, and/or protection under the Convention Against Torture must be given notice of corroborating documentation required and the opportunity to present it. The court came to this conclusion, despite the contrary conclusion reached by the Board of Immigration Appeals in Matter of L-A-C-.

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

https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1785&context=thirdcircuit_2018

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