Comment

CA Appeals Court Discusses Right to Hearing and Counsel for 1473.7 Motion

The California Court of Appeal, Fourth Appellate District, has determined that the moving party is entitled to a hearing under Penal Code 1473.7. The court further stated that “if the moving party is indigent and cannot attend the hearing because he or she is in federal custody awaiting deportation, we find the trial court should appoint counsel.” The court reasoned that “if a postconviction petition by an incarcerated defendant attacking the validity of a judgment states a prima facie case leading to issuance of an order to show cause, the appointment of counsel is demanded by due process concerns.”

The full text of People v. Fryhaat can be found here: http://sos.metnews.com/sos.cgi?0619//E070847

Comment

Comment

BIA Discusses Abuse of Asylum Process

The Board of Immigration Appeals has determined that a judge may grant a motion to dismiss by the Department of Homeland Security on the ground that continuation of the proceedings is no longer in the best interest of the government because the respondent abused the asylum process in order to apply for cancellation of removal in removal proceedings. The Board found evidence of such abuse in this case, where the respondents did not appear for their asylum interviews and immediately withdrew their asylum applications, instead pursuing cancellation of removal applications.

The full text of Matter of Andrade Jaso can be found here: https://www.justice.gov/eoir/file/1167381/download

Comment

Comment

BIA Finds no Need to Reopen In Absentia Order when NTA was Missing Time and Date of Hearing

In a pair of decisions, the Board of Immigration Appeals has determined that neither rescission of an in absentia order of removal nor termination of the proceedings is required where a respondent did not appear at a scheduled hearing after being served with a notice to appear that did not specify the time and place of the initial removal hearing, so long as a subsequent notice of hearing specifying that information was properly sent to the respondent.

The full text of Matter of Pena-Mejia can be found here: https://www.justice.gov/eoir/page/file/1164976/download

The full text of Matter of Miranda-Cordiero can be found here: https://www.justice.gov/eoir/page/file/1164981/download

Comment

Comment

BIA Finds that Notice of Hearing Completes Deficient NTA for Purposes of Stop-Time Rule

The Board of Immigration Appeals (Board) has determined that in “cases where a notice to appear does not specify the time or place of an alien’s initial removal hearing, the subsequent service of a notice of hearing containing that information perfects the deficient notice to appear, triggers the ‘stop-time’ rule, and ends the alien’s period of continuous residence or physical presence in the United States.” The Board determined that this was consistent with the Supreme Court’s decision in Pereira v. Sessions, since Pereira had accumulated the required 10 years by the time he was properly served with a notice of hearing.

The full text of Matter of Mendoza-Hernandez can be found here:

https://www.justice.gov/eoir/file/1159201/download

Comment

Comment

Ninth Circuit Finds that AZ Aggravated Assault is not Violent Felony

The Ninth Circuit has determined that aggravated assault under Arizona Revised Statute § 13-1203(A)(1) no longer qualifies as a violent felony under the Armed Career Criminal Act (ACCA). Given the similarity between the definition of a violent felony under the ACCA and a crime of violence aggravated felony, this case could have persuasive impact in the immigration context.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/10/17-17508.pdf

Comment

Comment

Ninth Circuit finds that CA Conviction for Inmate in Possession of Controlled Substances is Overbroad and Indivisible when Compared to CSA

The Ninth Circuit has determined that a California conviction for an inmate in possession of controlled substances (Pen. Code 4573.6) is both overbroad and indivisible with respect the substances listed in the Controlled Substances Act. “There is no dispute that section 4573.6 criminalizes controlled substances under California law that are not regulated under federal law, so the statute is overbroad.“ “We conclude that the statute is not divisible based on the plain text, state court decisions, and the contrast to convictions under the California Health and Safety Code. “

The court noted that a California state court has explicitly held that contemporaneous possession of two or more discrete controlled substances at the same location constitutes one offense under section 4573.6, demonstrating that the substances are alternative means, not alternative elements, of the offense. “The California Court of Appeal concluded that the phrase ‘any controlled substances’ described ‘a single offense irrespective of how many controlled substances are possessed, as here, at the same time and in the same place.’”

The full text of United States v. Graves can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/30/16-50276.pdf

Comment

Comment

Ninth Circuit finds that Embezzlement is a Serious Nonpolitical Crime

The Ninth Circuit has determined that a Chinese national involved in a scheme to embezzle public funds had committed a serious nonpolitical crime. “A large financial crime in the nature of theft, such as embezzlement, is normally a serious nonpolitical crime. To rebut this presumption, the applicant must ‘identify . . . facts showing that his offense had some ‘political aspect’ or ‘political objective.’” The court found that even if the prosecution of this crime was politically motivated, the crime itself was motivated solely by economic greed, and had no political angle to it. However, the court remanded for further consideration of the petitioner’s Convention Against Torture claim, finding that evidence suggests that Christians face torture in China.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/30/17-71966.pdf

Comment

Comment

Ninth Circuit Permits BIA to Decline to Address New Arguments on Appeal

The Ninth Circuit has determined that in certain instances, the Board of Immigration Appeals (Board) can decline to address a new argument made on appeal, such as the proffer of a new particular social group not raised before the Immigration Judge. “Waiver and forfeiture are an important part of any adjudicative system, whether judicial or administrative. These doctrines preserve the integrity of the appellate structure by ensuring that an issue must be presented to, considered and decided by the trial court before it can be raised on appeal. Particularly when the issue requires resolving disputed facts, such presentation is crucial because it allows the adjudicator with the best understanding of the case to make an initial determination, make the necessary findings, and conduct any additional proceedings necessary to reach a fair and just result. Waiver and forfeiture also encourage the orderly litigation and settlement of claims by preventing parties from withholding ‘secondary, back-up theories at the trial court level, thus allowing party-opponents to appraise frankly the claims and issues at hand and respond appropriately.” However, the court decided to “leave it to another case to decide what standard of review we should apply to the Board’s decision to invoke such default, and what showing a non-citizen must make to the immigration judge to preserve an argument for Board review.”

The full text of Honcharov v. Barr can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/29/15-71554.pdf

Comment

Comment

Ninth Circuit holds that Service of a Notice of Hearing does not Cure Defective NTA for Stop Time Rule

The Ninth Circuit has determined that service of a notice of hearing does not “complete” a Notice to Appear that is missing the time and date of an individual’s first removal hearing, such that the stop-time rule would be triggered. The court noted that this “two-step process” was explicitly rejected by the Supreme Court in Pereira v. Sessions and refused to follow the Board of immigration Appeals’ contrary decision in Matter of Mendoza-Hernandez. The court also overruled its prior decision in Popa v. Holder, which permitted the use of this two-step process.

The full text of Lorenzo Lopez v. Barr can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/22/15-72406.pdf

Comment

Comment

Ninth Circuit finds that Parole is not Admission in Any Status

The Ninth Circuit has determined that an individual who entered in the United States on a parole document was not “admitted in any status,” as contemplated by the cancellation of removal for lawful permanent residents statute. In so doing, the court noted that its prior case law finding that parole status connected with Family Unity Benefits constituted an admission had been repudiated by the Board of Immigration Appeals (Board) and that that the court had previously deferred to the Board’s narrower definition of admission.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/20/15-72792.pdf

Comment

Comment

Ninth Circuit Dismisses Appeal Regarding CA Felony Child Endangerment Statute as Moot

The Ninth Circuit has dismissed the appeal in Martinez-Cedillo v. Barr as moot. The original panel decision in this case found that a conviction under Ca. Penal Code 273a(A) (felony child endangerment) is a crime of child abuse. The court subsequently withdrew that opinion and granted a petition for rehearing en banc. As the case has now been mooted out, this issue will remain open for future litigation.

The order dismissing the case can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/16/14-71742.pdf

My blog post on the order granting en banc hearing can be found here:

http://www.sabrinadamast.com/journal/2019/3/24/ninth-circuit-takes-up-ca-felony-child-abuse-en-banc

My blog post on the original panel decision can be found here: http://www.sabrinadamast.com/journal/2018/8/12/ninth-circuit-finds-that-ca-felony-child-endangerment-conviction-is-crime-of-child-abuse

Comment

Comment

Ninth Circuit holds that Reclassification of Drug Trafficking Offense does not Impact Classification as Aggravated Felony

The Ninth Circuit has held that the reduction of a California possession for sale of marijuana conviction from a felony to a misdemeanor under Prop 64 (the California marijuana legalization law) does not change that the conviction is an aggravated felony for immigration purposes, as the reduction does not alter the elements of the offense. Unfortunately, the court engaged in an unnecessary analysis of whether Prop 64’s criminal mechanisms are based on rehabilitative grounds or legal errors. This is unfortunate because it calls into question whether dismissals for “legal invalidity” of misdemeanor marijuana possession convictions (as opposed to reductions of felony marijuana convictions to misdemeanors) will be recognized under the immigration laws.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/10/17-72914.pdf

Comment

Comment

Ninth Circuit finds that IJ Must Advise about SIJS Eligibility and Declines to Assess if Minors have a Right to Appointed Counsel

The Ninth Circuit has issued an en banc decision finding that an Immigration Judge has the obligation to advise an individual in removal proceedings about potential eligibility for Special Immigrant Juvenile Status (SIJS) if eligibility for that relief is apparent. The court found that statements in the record that the minor had not had contact with his father for many years raised the inference that reunification with his father is not viable due to abandonment, and the death threats he received from the gang members raised the inference that it was not in the minor’s best interest to return to Honduras.

The en banc court also strongly suggested that a judge should grant a continuance for a minor to pursue SIJS when the child is “actively pursuing” the state-court order.

The court declined to address whether a minor in removal proceedings has a constitutional right to counsel, as the minor in this case obtained counsel in future administrative proceedings.

This en banc decision differs significantly from the original panel decision in this case, which conclusively determined that no such right exists, and also held that the the judge was not required to advise the minor about SIJS because hd did not yet have a predicate order from the state court. The en banc court stated that to require a minor to have already obtained a predicate order before requiring a judge to judge to advise about the possibility of SIJS relief “would eviscerate the utility of advice by the IJ and substantially undermine the core purpose of the IJ’s duty to advise—to inform a minor of rights and avenues of relief of which he may not yet be aware.”

The full text of C.J.L.G. v. Barr can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/03/16-73801.pdf

The original panel decision can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/29/16-73801.pdf

Comment

Comment

Ninth Circuit Amends Prior Decision Regarding Review of BIA Refusal to Certify Case

The Ninth Circuit has amended its decision in Idrees v. Whitaker, which found that the Board of Immigration Appeals’ decision to certify a case was not subject to judicial review. In the amended opinion, the court stated that, “We do not hold that judicial review of the BIA’s refusal to certify a case is never appropriate. In other contexts, we have held that, even where a regulation commits a matter to agency discretion, the court may review the decision if there is ‘law to apply’ in doing so. But, Idrees does not assert that the BIA and IJ’s refusal to certify his claim for ineffective assistance of counsel rested on any constitutional or legal error. He challenges only the BIA’s exercise of its discretion in refusing to certify his claim, which is not subject to judicial review.”

The amended decision in Idrees v. Barr can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/04/30/15-71573.pdf

My blog post on the original decision in Idrees v. Whitaker can be found here: http://www.sabrinadamast.com/journal/2019/1/1/ninth-circuit-finds-that-bias-decision-to-certify-an-appeal-is-discretionary

Comment

Comment

Seventh Circuit Deems Lack of Date and Time of Hearing on Notice to Appear a Waiveable Claims Processing Error

The Seventh Circuit has determined that a Notice to Appear that lacks the time and date of the first removal hearing does not create a jurisdictional defect in the removal proceedings. However, the defect in the document constitutes a claims processing rule violation, which must be timely raised or is deemed waived.

“A failure to comply with the statute dictating the content of a Notice to Appear is not one of those fundamental flaws that divests a tribunal of adjudicatory authority. Instead, just as with every other claim-processing rule, failure to comply with that rule may be grounds for dismissal of the case. But such a failure may also be waived or forfeited by the opposing party.” Failure to raise the issue before the Immigration Judge constitutes forfeiture of the argument.

The full text of Ortiz-Santiago v. Barr can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D05-20/C:18-3251:J:Wood:aut:T:fnOp:N:2343213:S:0

Comment

Comment

Fifth Circuit Affirms Reinstatement of Removal Order

The Fifth Circuit has affirmed the reinstatement of a removal order issued against a petitioner who had applied for adjustment of status multiple times prior to the effective date of IIRIRA, on the ground that all of the applications had been denied prior to the reinstatement of his removal order. The court also rejected the petitioner’s argument that his removal order should be not reinstated because his last entry to the United States was through a port of entry. The court noted that the entry was not substantively legal because the petitioner had not filed an I-212 before reentering the United States.

The full text of Terrazas-Hernandez v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/17/17-60522-CV0.pdf

Comment

Comment

Fifth Circuit Affirms BIA's Requirement that Asylum Seekers Specify a PSG at Trial

The Fifth Circuit has affirmed the Board of Immigration Appeals’ decision in Matter of W-Y-C- and H-O-B-, which requires asylum seekers to specify a particular social group at trial, and prohibits asylum seekers from raising new particular social groups on appeal to the Board of Immigration Appeals.

The full text of Cantarero-Lagos v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/18/18-60115-CV0.pdf

Comment