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District Court Issues Nationwide Injunction Providing Bond Hearings for Asylum Seekers

The District Court for the Western District of Washington has ordered that the Department of Justice provide all detainees who have received a positive credible fear determination with bond hearings within 7 days of a request made by such a detainee. If detention exceeds that time limit, the detainee must be released. The Department of Homeland Security will have the burden to prove that the asylum seeker is a danger to the community or a flight risk in these bond proceedings. The order requires the Department of Justice to implement the injunction within 30 days.

Importantly, this order includes asylum seekers who have been classified as arriving aliens.

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

https://www.nwirp.org/wp-content/uploads/2019/04/110-order-granting-PI.pdf

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CA Court of Appeals Addresses IAC Regarding Immigration Consequences

The California Court of Appeals, Fourth Appellate District, has determined that a counsel who failed to advise her client before she entered her guilty plea that her plea would subject her to mandatory deportation has rendered ineffective assistance of counsel. An executed Tahl waiver form, advising the defendant she will be deported, does not substitute for the specific and correct advice of counsel regarding clear immigration consequences.

Moreover, where the record contains objective evidence (such as family ties, long-time lawful permanent residence, and an employment history in the United States) that the defendant would not have entered her guilty plea had she been so advised, prejudice is established. A defendant’s willingness to spend months in immigration detention fighting a case is further proof of her unwillingness to agree to a plea that would make her automatically deportable.

The full text of In re Reyna Perez Hernandez can be found here:

http://sos.metnews.com/sos.cgi?0319//G054623

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Ninth Circuit finds that NC Conviction for Breaking and Entering is Predicate Felony under ACCA

The Ninth Circuit has determined that a North Carolina conviction for breaking and entering can qualify as a predicate burglary offense under the Armed Career Criminal Act (ACCA). In so doing, the court determined that generic burglary includes burglary of mobile structures customarily used or adapted for overnight accommodation, such as mobile homes. Given the similar definition of a burglary predicate offense under the ACCA and a burglary aggravated felony in the immigration context, this decision could have persuasive impact in immigration cases.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/04/04/17-15415.pdf

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Ninth Circuit finds that OR Third Degree Robbery Conviction is not a CIMT

The Ninth Circuit has determined that an Oregon third degree robbery conviction is not a crime involving moral turpitude because it encompasses the unauthorized use of a vehicle, which does not include as an essential element an intent to deprive the owner of his or her property permanently. Although the court recognized that the BIA no longer requires an intent to permanently deprive to turn a theft offense into a CIMT, that precedent is not retroactive, and the conviction in the instant case predated that precedent. The court also held that although a robbery conviction requires a use of force, the minimal force required for conviction is too minimal to qualify as a CIMT.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/28/15-72092.pdf

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Fifth Circuit finds that Petitioner Must Provide US Address for Mailing of Notice of Hearing

The Fifth Circuit has determined that an immigration in immigration court proceedings has an obligation to provide a US-based address to which the immigration court can send notices of hearing. The court has no obligation to mail a notice to a foreign address.

The full text of Ramos-Portillo v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/17/17-60254-CV0.pdf

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Supreme Court Upholds Mandatory Detention for Old Criminal Convictions

The Supreme Court has determined that the mandatory detention provisions in INA 236(c) apply to any of the enumerated grounds, so long as the person was released from criminal custody after October 8, 1998. The implication of this decision is that many individuals convicted years ago of relatively minor crimes (i.e., simple drug possession, theft) can now be detained without a bond hearing by immigration authorities. The Supreme Court noted that the petitioners in this matter did not mount a constitutional challenge to the mandatory detention provision, only a statutory one, leaving open the possibility that the Court may reconsider the constitutionality of the mandatory detention scheme in a future case.

The full text of Nielsen v. Preap can be found here:

https://www.supremecourt.gov/opinions/18pdf/16-1363_a86c.pdf

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Eleventh Circuit Rejects Matter of Richmond

The Eleventh Circuit has rejected the Board of Immigration Appeals’ decision in Matter of Richmond, which held that a false claim to U.S. citizenship but must be material to the benefit sought in order to render the petitioner inadmissible. The court held that the plain language of the false claim statute does not include a materiality requirement, and as such, the decision in Richmond is not entitled to any deference. “Aliens can make a false representation with the goal of obtaining a benefit, even if the false representation does not help them achieve that goal.”

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

http://media.ca11.uscourts.gov/opinions/pub/files/201710636.pdf

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Ninth Circuit Addresses Firm Resettlement Rule

The Ninth Circuit has emphasized that the Board of Immigration Appeals may not ignore a petitioner’s claim to have been persecuted in the country of resettlement when determining if the firm resettlement bar applies to an asylum application. In addition, the firm resettlement bar acts as a statutory bar to asylum, not a limitation as to what evidence of past persecution a court must consider. Evidence of past persecution in the applicant’s home country is relevant to an application for withholding of removal, which is not subject to the firm resettlement bar.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/02/26/16-73373.pdf

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Ninth Circuit Applies Suspension Clause to Expedited Removal Order

The Ninth Circuit has determined that the Suspension Clause requires that an individual placed in expedited removal proceedings be given a meaningful opportunity to demonstrate that he is being held pursuant to the erroneous application or interpretation of relevant law, and the current limited review provided for by statute does not satisfy this requirement, as it only allows for review of whether an individual is a non-citizen, whether he was actually removed via the expedited removal process, and whether he is a lawful permanent resident or other status that exempts him from the expedited removal process.

The court noted that at its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest. Therefore, when evaluating whether a substitute is adequate, the court must consider the rigor of any earlier proceedings and the intended duration of the detention and the reasons for it.

In the instant case, the petitioner contended that the government denied him a fair procedure, applied an incorrect legal standard to his credible fear contentions, and failed to comply with the applicable statutory and regulatory requirements. “The core of his claim is that the government failed to follow the required procedures and apply the correct legal standards when evaluating his credible fear claim.” The court concluded that the Suspension Clause requires review of these issues because the existing statutory review does not meaningfully address these issues. Past “cases suggest that the Suspension Clause requires review of legal and mixed questions of law and fact related to removal orders, including expedited removal orders.”

The full text of Thuraissigiam v. USDHS can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/07/18-55313.pdf

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Ninth Circuit Rules that Sentencing Enhancements can be Considered in Particularly Serious Crime Analysis

The Ninth Circuit has determined that a sentencing enhancement can be considered when determining whether a petitioner has been convicted of a per se particularly serious crime (i.e., whether it is an aggravated felony for which a sentence of at least five years was imposed).

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/07/15-72833.pdf

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Ninth Circuit Finds that WA Harassment Conviction is Crime of Violence under Federal Sentencing Guidelines.

The Ninth Circuit has determined that a Washington conviction for harassment by making a threat to kill qualifies as a crime of violence under the federal sentencing guidelines because it necessary entails the use of violent force.

In its analysis of the harassment conviction, the Court noted some perceived tension with its decision in US v. Valdivia-Flores, in which it noted that it is possible that no Washington state conviction will qualify as an aggravated felony for immigration purposes. The Court noted the mode of analysis employed in Valdivia-Flores is more akin to the analysis employed under the enumerated offenses clause, rather than the force clause, of the sentencing guidelines. Thus, this is one of those cases that immigration practitioners will want to carefully scrutinize to evaluate if it is determinative as to whether a Washington harassment conviction qualifies as a crime of violence aggravated felony for immigration purposes.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/12/17-30165.pdf

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Ninth Circuit Takes up CA Felony Child Abuse En Banc

The Ninth Circuit has granted a petition for en banc rehearing in Martinez-Cedillo v. Barr, a decision finding that a conviction for felony child endangerment in California is a crime of child abuse.

The original decision in Martinez-Cedillo v. Session can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/23/14-71742.pdf

The order granting en banc review can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/18/14-71742.pdf

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Ninth Circuit Emphasizes that Death Threats Constitute Persecution in only a Small Number of Cases

The Ninth Circuit has reiterated that death threats alone will rise to the level of persecution in only a few cases in which the threats are sufficiently specific and menacing so as to cause significant actual suffering or harm. In this case, the petitioner received a threat over the phone, and another in person. The men who approached him were believed to be hitmen or “sicarios,” but the petitioner did not personally know if they had ever carried out threats against other officers for failing to cooperate as requested. The men took no actions of violence against the petitioner, his family or property beyond the threats. “On these facts, although it may have been possible for the IJ to conclude that the threats were sufficiently serious and credible to rise to the level of persecution, we cannot say the evidence compels the conclusion that [the petitioner] suffered past persecution.”

The full text of Duran-Rodriguez v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/20/16-72957.pdf

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Eighth Circuit finds that Arkansas Kidnapping Statute is not Violent Felony under ACCA

The Eighth Circuit has determined that an Arkansas kidnapping statute does not qualify as a violent felony under the Armed Career Criminal Act because it does require the use of physical force. The court also determined that the statute is indivisible. Because the definition of a violent felony is similar to definition of a crime of violence in the immigration law, this case may hav persuasive effect in immigration cases.

The full text of U.S. v. Coleman can be found here:

https://ecf.ca8.uscourts.gov/opndir/19/03/182400P.pdf

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Eighth Circuit finds that IL Conviction for Aggravated Battery on a Public Way is Crime of Violence

The Eighth Circuit has determined that an Illinois conviction for aggravated battery on a public way is a crime of violence under the federal sentencing guidelines. The Illinois definition of simple battery is divisible between force causing bodily injury (which qualifies as a crime of violence) and insulting or provocative touching (which does not qualify as a crime of violence). Applying the modified categorical approach, the court determined that the language of the charging document indicated that the petitioner was convicted of bodily injury battery.

The full text of U.S. v. Roman can be found here:

https://ecf.ca8.uscourts.gov/opndir/19/03/173582P.pdf

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Eighth Circuit finds that Inconclusive Record of Conviction does not Establish Eligibility for Relief

The Eighth Circuit has determined that the Nebraska statute defining criminal impersonation is divisible as compared to the generic definition of a crime involving moral turpitude. However, because the record of conviction was inconclusive as to which subdivision the petitioner was convicted under, he could not meet his burden of establishing eligibility for cancellation of removal for non-lawful permanent residents.

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

https://ecf.ca8.uscourts.gov/opndir/19/03/173377P.pdf

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