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Seventh Circuit Finds that Categorical Approach does not Apply to Violation of Protective Order

The Seventh Circuit has determined that the categorical approach does not apply to the determination as to whether a petitioner has violated section 237(a)(2)(E)(ii) of the INA (violation of a domestic violence-related protective order) because this section does not require a conviction.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D11-22/C:17-1568:J:Darrow:aut:T:fnOp:N:2066813:S:0

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BIA Determines that Categorical Approach is Inapplicable to Determination as to Whether Respondent Violated a Protective Order

The Board of Immigration Appeals has determined that the categorical approach is inapplicable to the determination under section 237(a)(2)(E)(ii) of the INA as to whether a respondent has violated a domestic violence-related protective order because no conviction is required under this statute.  Instead, a judge should consider any reliable evidence to determine whether a state court has determined that the respondent violated a protective order.  In so doing, an Immigration Judge should decide (1) whether a State court determined that the alien has engaged in conduct that violates the portion of a protection order that involve[d] protection against credible threats of violence, repeated harassment, or bodily injury and (2) whether the order was issued for the purpose of preventing violent or threatening acts of domestic violence.

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

https://www.justice.gov/eoir/page/file/1012211/download

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Tenth Circuit Addresses Municipal Code Theft; inconclusive records of conviction

The Tenth Circuit has determined that theft under the Westminster, Colorado municipal code is overbroad and divisible as compared to the generic definition of a crime involving moral turpitude (CIMT) because it contains four separate crimes, and one subsection does not require the defendant to intend to permanently deprive the owner of the benefits of ownership.  Notably, the Court recognized that the Board of Immigration Appeals has recently updated its definition of theft-related CIMTs, but noted that this updated definition would only apply prospectively to cases initiated after the issuance of the new definition.  

The court then determined that the record of conviction was inconclusive as to which subsection of the theft statute the petitioner was convicted of violating.  However, since he was seeking cancellation of removal, the burden was on him to prove that he had not been convicted of a CIMT, and he could not meet this burden with an inconclusive record.  In so finding, the court joined the Ninth Circuit's recent split from the First Circuit on this issue.

The full text of Lucio-Rayos v. Sessions can be found here:

https://www.ca10.uscourts.gov/opinions/15/15-9584.pdf

 

 

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Sixth Circuit Addresses Honor Killings in Jordan

The Sixth Circuit has determined that the Jordanian government is unable to protect women from honor killings, and the government's policy of placing women in protective custody amounts to involuntary incarceration.  This policy demonstrates government acquiescence to torture.  The court remanded to determine if the petitioner had put forward a cognizable particular social group and whether she could safely internally relocate.

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

http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0260p-06.pdf

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Ninth Circuit Finds California Hit & Run Statute Divisible

The Ninth Circuit has determined that California's felony hit and run statute is divisible, with some portions covering morally turpitudinous conduct.  Specifically, a conviction resting upon the infliction of injury on another person qualifies as a crime involving moral turpitude under Ninth Circuit case law deeming a non-fraudulent crime involving infliction of injury, intent to injure, or a protected class of victims to be a crime involving moral turpitude.  

The full text of Conejo-Bravo v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/17/13-72280.pdf

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Fifth Circuit Denies Motion to Reopen Because Petitioner Never Provided a Valid Address

The Fifth Circuit has upheld the denial of a motion to reopen based on lack of notice because the petitioner did not provide a valid address to the Department of Homeland Security at the time of issuance of the Notice to Appear, and did not subsequently file a change of address form with the Immigration Court.

 The full text of Hernandez-Castillo v. Sessions can be found here:

http://www.ca5.uscourts.gov/opinions/pub/15/15-60847-CV0.pdf

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USCIS Terminates TPS for Nicaraguans; Extends TPS for Honduras

U.S. Citizenship and Immigration Services (USCIS) has terminated the Temporary Protected Status (TPS) for Nicaraguans, but has allowed a one year extension to facilitate the orderly end of the program.  USCIS was unable to reach a decision on whether TPS should be extended or terminated for Honduras.  This failure to issue a decision resulted in an automatic six month extension of TPS for Hondurans.

Both of these announcements can be read here:

https://www.dhs.gov/news/2017/11/06/acting-secretary-elaine-duke-announcement-temporary-protected-status-nicaragua-and

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Seventh Circuit Construes 237(a)(1)(H) Waiver

The Seventh Circuit has broadly construed the conduct covered by 237(a)(1)(H) waivers, finding that a petitioner found deportable because his conditional residence was terminated is still eligible for the waiver if the termination was related to fraudulent conduct.  In so doing, the Seventh Circuit joins the Ninth Circuit's interpretation of the statute.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D11-06/C:16-3277:J:PerCuriam:aut:T:fnOp:N:2057750:S:0

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Ninth Circuit Determines that Wave Through Entry Qualifies as Admission in any Status

The Ninth Circuit has determined that a wave-through entry at the border qualifies as an "admission in any status" for the purpose of cancellation of removal for lawful permanent residents.  The Ninth Circuit holding is in accordance with a prior decision issued by the Fifth Circuit.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/07/13-72643.pdf

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BIA Determines that NY Criminally Negligent Homicide is not a CIMT

The Board of Immigration Appeals has determined that a New York conviction for criminally negligent homicide is not a crime involving moral turpitude because crimes committed with criminal negligence generally require neither intent nor a conscious disregard of a substantial and unjustifiable risk; thus, no sufficiently culpable mental state is necessary to commit such an offense.  

The full text of Matter of Tavdidishvili can be found at:

https://www.justice.gov/eoir/page/file/1003846/download

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BIA Construes Rape Aggravated Felony Ground

The Board of Immigration Appeals (BIA) has determined that a rape aggravated felony encompasses not only vaginal, oral, and anal intercourse, but also acts of digital or mechanical penetration of the vagina or anus, no matter how slight.  The BIA has also determined that the required lack of consent can be established through a statutory requirement that the victim’s ability to appraise the nature of the conduct was substantially impaired and the offender had a culpable mental state as to such impairment.  Such circumstances include where the victim’s mental capacity is substantially impaired as the result of an intoxicant administered without his or her consent, typically by the defendant, and where the victim is incapable of giving consent as a result of a mental disease or defect, and the defendant knew or had reason to know of the victim’s condition.  

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

https://www.justice.gov/eoir/page/file/1005701/download

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BIA Determines that IJ may not Terminate Proceedings to Allow Arriving Alien to Apply for Asylum before DHS

The Board of Immigration Appeals has determined that an Immigration Judge does not have authority to terminate removal proceedings to give an arriving alien an opportunity to present an asylum claim to the Department of Homeland Security in the first instance.  The Department of Homeland Security has the exclusive discretion whether to subject such individuals to the credible fear process or whether to initiate removal proceedings, and once a charging document has been filed, the Immigration Judge has exclusive jurisdiction over the asylum application.

The full text of Matter of J-A-B- & I-J-V-A can be found here:

https://www.justice.gov/eoir/page/file/1008136/download

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Eighth Circuit Finds that Conviction for Arkansas Third Degree Domestic Battery is a Violent Felony

The Eighth Circuit has determined that an Arkansas conviction for third degree domestic battery is a violent felony under the Armed Career Criminal Act.  The court determined that the statute is divisible, but subsection (a)(1), which requires the infliction of injury, meets the definition of a violent felony because the infliction of injury necessarily requires the use of violent force.  Given the similar definition of a violent felony and crime of violence in the immigration context, this case may be persuasive in immigration proceedings.

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

http://media.ca8.uscourts.gov/opndir/17/11/171725U.pdf

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Seventh Circuit Finds that Refugee's Omission was a Material Misrepresentation

The Seventh Circuit has determined that a Bosnian refugee committed a material misrepresentation when he failed to disclose his military service during the Bosnian War.  The court reached this conclusion despite the fact that there was no evidence that the petitioner participated in any persecution, torture, genocide, extrajudicial killings, or other acts that would have barred him from obtaining refugee status.  The mere fact that the failure to disclose the military service cut off a potential line of questioning was sufficient to sustain the fraud charge.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D10-17/C:17-1202:J:Manion:aut:T:fnOp:N:2047284:S:0

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Ninth Circuit Requires IJs to Consider Detainees' Ability to Pay Bond

The Ninth Circuit has issued a decision requiring Immigration Judges to consider a detainee's financial circumstances and alternatives to detention during an initial bond hearing under section 236(a) of the INA.  "Since the government’s purpose in conditioning release on the posting of a bond in a certain amount is to 'provide enough incentive for released detainees to appear in the future, we cannot understand why it would ever refuse to consider financial circumstances: the amount of bond that is reasonably likely to secure the appearance of an indigent person obviously differs from the amount that is reasonably likely to secure a wealthy person’s appearance.  Nor can we understand why the government would refuse to consider alternatives to monetary bonds that would also serve the same interest the bond requirement purportedly advances."  The decision also calls for new bond hearings where these considerations were not taken into account during the original bond determination.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/02/16-56829.pdf

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BIA finds that Exception to 212(a)(6)(A)(i) only Applies to VAWA Self-Petitioner

The Board of Immigration Appeals has determined that the exception to removability under section 212(a)(6)(A)(i) of the INA (present without admission or parole) applies only to a VAWA self petitioner.  It does not apply to a respondent who has been subjected to extreme cruelty, but who has not applied for benefits as a VAWA self petitioner.  The instant case involved a respondent who fled domestic violence in Guatemala at the hands of family members.  

The full text of Matter of Pangan-Sis can be found here:

https://www.justice.gov/eoir/page/file/1001951/download

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