Comment

CA Appellate Court Addresses Timeliness of 1473.7 Motion

The California Court of Appeal, Fourth Appellate Decision, has issued a decision addressing the due diligence requirements of a motion to vacate under Penal Code 1473.7. The trial court denied the motion without the defendant or counsel present, finding no diligence given a 12-year gap between the conviction and the filing of the motion to vacate. The appellate court disagreed, finding that the motion was filed 7 months after Penal Code 1473.7 was enacted, and one month after the appellate court advised the defendant (in a decision denying an appeal of the denial of an expungement in the case) that he could seek relief under 1473.7.

The appellate court also determined that the trial court should have appointed counsel for the defendant, who was unrepresented and detained at the time of the court’s hearing on the motion. “We construe amended section 1473.3 to provide the right to appointed counsel where an indigent moving party has set forth factual allegations stating a prima facie case for entitlement to relief under the statute.”

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

https://www.courts.ca.gov/opinions/documents/E069339.PDF

Comment

Comment

USCIS Adopts AAO Decision on TPS and Adjustment

U.S. Citizenship and Immigration Services has adopted the Administrative Appeals Office’s decision in Matter of H-G-G-. This decision reaffirms the position of the Department of Homeland Security that Temporary Protected Status (TPS) recipients are considered as being in and maintaining lawful status as a nonimmigrant only during the period that TPS is in effect. A grant of TPS does not confer an admission, constructive or otherwise, nor does it cure or otherwise impact any previous failure to maintain continuously a lawful status. Matter of H-G-G- further clarifies because the U.S. Courts of Appeals for the Sixth and Ninth Circuits have held that a grant of TPS supplies the requisite admission for purposes of adjustment, USCIS personnel will follow those decisions only in those respective jurisdictions, and on that discrete issue. However, on the question of whether a grant of TPS cures a prior unlawful status, USCIS personnel will apply the holding in Matter of H-G-G- universally.

Specifically, USCIS holds that the TPS statute “allows applicants who are otherwise eligible to adjust status, but whose original nonimmigrant status lapsed during the period of their TPS, to avoid the bar prescribed at section 245(c)(2) of the Act for failure to maintain continuously their lawful nonimmigrant status since entry into the United States.” “Stated another way, the plain interplay of the statutory provisions ensures that those who were eligible to adjust their status before receiving TPS remain so; it does not mean that persons ineligible for adjustment due to prior immigration violations have that ineligibility waived by a grant of TPS.”

Finally, “on the question of whether a grant of TPS cures the bar at section 245(c)(2) of the Act for failure to continuously maintain lawful status since entry, both the Ninth and Sixth Circuits’ statements were dicta only, as that bar did not apply to the individuals before them. Accordingly, DHS will apply the contrary holding in this decision on this issue universally.”

The adoption announcement and text of Matter of H-G-G- can be found here:

uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2019/Matter_of_H-G-G-_Adopted_Decision_2019-01_AAO_July_31_2019.pdf

Comment

Comment

Attorney General Curtails Family PSG Claims

The Attorney General has revised the Board of Immigration Appeals’ prior decision finding that family qualifies as a particular social group for asylum and withholding of removal purposes. Instead, the Attorney General stated that “most nuclear families are not inherently socially distinct.” “When an applicant proposes a group composed of a specific family unit, he must show that his proposed group has some greater meaning in society. It is not enough that the family be set apart in the eye of the persecutor, because it is the perception of the relevant society—rather than the perception of the alien’s actual or potential persecutors—that matters.”

“If an applicant claims persecution based on membership in his father’s immediate family, then the adjudicator must ask whether that specific family is ‘set apart, or distinct, from other persons within the society in some significant way.’ It is not sufficient to observe that the applicant’s society (or societies in general) place great significance on the concept of the family. If this were the case, virtually everyone in that society would be a member of a cognizable particular social group. The fact that ‘nuclear families’ or some other widely recognized family unit generally carry societal importance says nothing about whether a specific nuclear family would be ‘recognizable by society at large.’”

The full text of Matter of L-E-A- can be found here:

https://www.justice.gov/eoir/page/file/1187856/download

Comment

Comment

Eleventh Circuit Remands Asylum Claim Made by Pakistani Ahmadi Muslim

The Eleventh Circuit has remanded a case in which asylum was denied to a Pakistani Ahmadi Muslim. The court noted that the Pakistani penal code bans Ahmadis from preaching or propagating their religious beliefs. “The record indicates that Pakistan’s anti-blasphemy laws prohibit Ahmadis from professing core tenets of their faith by making it a crime to defile the Prophet Muhammad and by interpreting a central tenet of the Ahmadi faith as doing so. In fact, the record suggests that both the Pakistani state and the public use the anti-blasphemy laws to specifically target, harass, and abuse Ahmadis. Though Ahmadis constitute less than five percent of the population, they represent nearly forty percent of those arrested for blasphemy.” Pakistan prevents the construction of mosques by Ahmadis, prohibit the publication of their religious texts, and intimidate them at the voting polls. where they are kept on a separate voter roll.

“his evidence does not compel a finding of persecution, though the Board is certainly free to conclude as much on remand. But the evidence must be wrestled with. The Board can explain why it accords certain highly relevant evidence less weight than other evidence—or why it discredits that evidence altogether. Or it can explain why the evidence does not meet the legal standard of religious persecution.”

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

http://media.ca11.uscourts.gov/opinions/pub/files/201714332.pdf

Comment

Comment

Ninth Circuit Rejects Issue Preclusion Claim

The petitioner had been granted asylum by an Immigration Judge, and subsequently applied for adjustment of status before U.S. Citizenship and Immigration Services. His adjustment application was denied on the ground that he had provided material support to a terrorist organization. The petitioner appealed that decision to federal court, arguing that the material support bar also applies to asylum cases, and as such, the grant of asylum meant that the Immigration Judge must have previously determined that he had not provided material support to a terrorist organization. The Ninth Circuit disagreed, finding that the question of whether the petitioner was inadmissible on terrorism-related grounds was never raised, contested, or submitted for determination at his asylum proceeding, and thus, the doctrine of issue preclusion did not apply. Notably, the Tier III terrorism ground did not exist at the time of the asylum hearing.

The full text of Janjua v. Neufeld can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/09/17-16558.pdf

Comment

Comment

Ninth Circuit Defers to BIA; Finds that Solicitation to Possess Marijuana for Sale Triggers CIMT Inadmissibility

The Ninth Circuit has deferred to the Board of Immigration Appeals’ decision in Matter of Gonzalez Romo, finding that a lawful permanent resident convicted of solicitation to possess marijuana for sale was inadmissible upon presentation at a port of entry under section 212(a)(2)(A)(i)(I) (crime involving moral turpitude), even though that section refers only to conspiracy or attempt to commit a crime involving moral turpitude, not solicitation of a crime involving moral turpitude. The court relief on the absurdity of making a lawful permanent resident deportable under the corresponding crime involving moral turpitude ground for solicitation to commit a crime involving moral turpitude, but not rendering them inadmissible for the conviction.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/14/16-71559.pdf

Comment

Comment

Ninth Circuit Finds that Oregon Strangulation Conviction is Crime of Violence

The court determined that an Oregon conviction for strangulation constitutes a crime of violence. The court found no evidence that Oregon state courts had extended the statute to include non-violent conduct. “It is difficult to imagine how a defendant could apply enough force to impede normal functions without exerting physical force that is ‘capable of hurting or causing injury.’”

The panel also concluded that the BIA misapplied the relevant factors for determining in two key respects: 1) it failed to engage in a case-specific factual analysis of the circumstances and underlying facts of the conviction; and 2) it erroneously looked at the potential penalty for a violation, but the relevant factor instructs the agency to examine the type of sentence imposed.

The full text of Flores-Vega v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/02/14-70690.pdf

Comment

Comment

Eighth Circuit Finds that Arkansas Conviction for Aggravated Assault and South Carolina Conviction for Pointing a Firearm at Another Person are Crimes of Violence

The Eighth Circuit has determined that an Arkansas conviction for aggravated assault and a South Carolina conviction for pointing a firearm at another person are both crimes of violence for federal sentencing purposes. With respect to the Arkansas aggravated assault conviction, the court held that the statute is divisible, and subsection (a)(1) is not a crime of violence. However, subsection (a)(2), which criminalizes displaying a firearm in such a manner that creates a substantial danger of death or serious physical injury to another person, necessarily involves the threatened use of violent force. With respect to the South Carolina firearms conviction, the court deferred to prior precedent finding that that pointing a gun at another person qualifies as a crime of violence.

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

https://ecf.ca8.uscourts.gov/opndir/19/08/181953P.pdf

Comment

Comment

Eighth Circuit Finds that Arkansas Residential Burglary Qualifies as Generic Burglary

The Eighth Circuit, interpreting Supreme Court precedent, determined that “burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation” qualifies as generic burglary. As such, it reversed its prior precedent and determined that an Arkansas residential burglary conviction, which includes burglary of certain types of vehicles, also matches the definition of generic burglary. Given the similar definitions of generic burglary in the criminal and immigration contexts, this case could have persuasive impact in the immigration context.

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

https://ecf.ca8.uscourts.gov/opndir/19/08/161233P.pdf

Comment

Comment

Eighth Circuit Reverses Adverse Credibility Determination for Chinese Christian Asylum Seeker

The Eighth Circuit has reversed an adverse credibility determination for a Chinese Christian asylum seeker. The court noted that “credibility determinations are not properly based on nit-picking of translated answers regarding obscure religious trivia.” “In the context of religious persecution, interrogations designed to trip up new converts or those without formal theological training fail to ‘bear a legitimate nexus’ to such determinations.”

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

https://ecf.ca8.uscourts.gov/opndir/19/07/182342P.pdf

Comment

Comment

Eighth Circuit Finds that Iowa Forgery Conviction is Aggravated Felony

The Eighth Circuit has determined that an Iowa statute which criminalizes possessing a forged instrument with the intent to perpetuate a fraud or with the knowledge his possession was facilitating a fraud, qualifies as a forgery-related aggravated felony. The court also determined that a reinstatement order is not final if a petitioner requests a reasonable fear interview. The order became final once the Immigration Judge affirmed the Asylum Officer’s negative reasonable fear determination. Finally, the court acknowledged that the Department of Homeland Security violated the petitioner’s due process rights by issuing a Final Administrative Removal Order (FARO) before the deadline for him to respond to the Notice to Intent to Issue the FARO had passed, but found that he could not establish any prejudice from this violation.

The full text of Cardoza Salazar v Barr can be found here:

https://ecf.ca8.uscourts.gov/opndir/19/08/182146P.pdf

Comment

Comment

Sixth Circuit Finds that OH Robbery and OH Complicity to Commit Aggravated Robbery Convictions are Crimes of Violence

The Sixth Circuit has determined that Ohio convictions for robbery and complicity to commit aggravated robbery are crimes of violence under the sentencing guidelines because they require the actual or threatened infliction of physical harm, which is defined as “any injury, illness, or other physiological impairment, regardless of its gravity or duration.” The court concluded that for “physical harm” to result, one must have deployed “physical force capable of causing physical pain or injury,” and thus a conviction under either statute qualified as a crime of violence. Given the similar definitions of a crime of violence in the sentencing law and the immigration law, this case could have persuasive value in the immigration context.

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

http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0182p-06.pdf

Comment

Comment

Sixth Circuit Dismisses Challenge to Reinstatement Order

The Sixth Circuit has dismissed a collateral challenge to a removal order brought through an appeal of the reinstatement of that removal order, finding that any challenges to the underlying order had to be brought through a petition for review filed within 30 days of the finality of that order. However, the court did suggest that an exception might exist to this rule, though the exception did not apply in this case.

“As this court has explained previously, ‘we do not preclude the possibility that an alien could raise a Suspension Clause challenge to § 1252(b)(1) where the provision forecloses judicial review of an underlying removal order in a reinstatement proceeding; and where, either due to ineffective assistance of counsel or misconduct by government officials, the alien was prevented from challenging that underlying order and now is barred from reopening his removal proceedings (as a means to challenge that underlying order) because he is subject to reinstatement under § 1231(a)(5).’ We reserve judgment on this issue for another day as Moreno-Martinez did not raise it here.”

The full text of Moreno-Martinez v. Barr can be found here:

http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0174p-06.pdf

Comment

Comment

Fifth Circuit Finds that Transporting Firearm is Not Firearms Deportable Offense

The Fifth Circuit has determined that 8 USC § 1227(a)(2)(C), which defines the firearms deportability ground, does not encompass offenses involving the transportation of firearms. As such, the petitioner, who had been convicted of transporting a firearm in Oklahoma, remained eligible for cancellation of removal for non-lawful permanent residents.

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

http://www.ca5.uscourts.gov/opinions/pub/17/17-60236-CV0.pdf

Comment

Comment

Third Circuit Applies Exclusionary Rule to Information Obtained During Traffic Stop

The Third Circuit has determined that the exclusionary rule was appropriate to apply to constitutional violations committed by a police officer. The officer unlawfully prolonged a traffic stop to interrogate the occupants of a van about their immigration statuses. The court initially held that the exclusionary rule is not generally available in removal proceedings where state or local law officers have violated the Fourth Amendment.. However, an egregious or a widespread Fourth Amendment violation would be sufficient to trigger the application of the exclusionary rule in removal proceedings when the misconduct was committed by state or local law enforcement.

“First, as we determined above, Macke’s extension of the stop was unreasonable and in violation of the Fourth Amendment. Second, Petitioners’ allegations, if true, may show an egregious Fourth Amendment violation that would warrant application of the exclusionary rule because, as noted above, we specifically stated in Oliva-Ramos that ‘whether any seizures or arrests were based on race or perceived ethnicity’ was a consideration in determining whether an egregious Fourth Amendment violation had occurred. Through their own declarations and the declarations of other passengers, Petitioners claim that Macke detained them and ordered them to travel to the rest area because they “all look Hispanic.” Although the Government’s Forms I-213 assert that Petitioners ‘claimed to be’ citizens of other countries in their interactions with Macke, the declarations submitted by Petitioners simply state that they “did not have anything to give him” in response to his request for ‘immigration papers, work permit, visa, passport, and ID.’ In fact, Macke’s request, as alleged by Petitioners, supports their claim that Macke continued the stop because of the passengers’ Hispanic appearance. His demand for this type of documentation, prior to any interaction with the passengers in the rear of the van, shows an assumption on his part that the Petitioners and other passengers were not United States citizens, a conclusion he could have only come to based on their appearance.”

“Petitioners aver that they were refused water and food and were not allowed to use the bathroom or turn on the van’s air conditioning while they were detained by Macke. Depending on the actual evidence adduced, these facts could be considered evidence of coercion or use of force as part of the totality of the circumstances test.”

The full text of Yoc-Us v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/181520p.pdf

Comment

Comment

Third Circuit Finds that Particularly Serious Crime Bar to Asylum and Withholding Includes Non-Aggravated Felonies

In a departure from prior precedent, the Third Circuit has determined that the particularly serious crime bar, as applied in both the asylum and withholding of removal contexts, includes non-aggravated felonies. The court concluded that in the asylum context, (1) aggravated felonies are a subset of offenses that constitute particularly serious crimes; (2) the Attorney General has the authority to designate other offenses as per se particularly serious; and (3) the Attorney General retains the authority, through a case-by-case evaluation of the facts surrounding an individual alien’s specific offense, to deem that alien to have committed a particularly serious crime. Similarly, the withholding context, aggravated felonies are a subset of particularly serious crimes and Congress has deemed one subset of aggravated felonies, namely those for which the alien was sentenced to at least five years, particularly serious per se.

The full text of Bastardo-Vale v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/172017p.pdf

Comment