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BIA Addresses Analysis for Conviction Related to Violation of a Protection Order

The Board of Immigration Appeals has confirmed the proper analysis under section 237(a)(2)(E)(ii) of the INA (violation of a protection order), as it relates to an application for cancellation of removal for non-lawful permanent residents.

"Two distinct inquiries must be made in applying section 240A(b)(1)(C) to determine whether a violation of a protection order is for an offense under section 237(a)(2)(E)(ii). First, an Immigration Judge must determine whether the offense at issue resulted in a “conviction” within the statutory definition set forth at section 101(a)(48)(A) of the Act.  The Immigration Judge must then decide whether the State court has found that the alien “engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection ordered was issued,” as directed by section 237(a)(2)(E)(ii). In conducting this second inquiry, Immigration Judges should follow the analysis provided in Matter of Obshatko—that is, they should review the probative and reliable evidence regarding whether the State court’s findings that a protection order has been violated meet the requirements of section 237(a)(2)(E)(ii). An Immigration Judge might reasonably conduct these two inquiries—neither of which involves the elements-based categorical approach—in either order."

"Although a conviction is necessary in the context of cancellation of removal, it would be incongruous to apply the elements-based categorical approach to section 237(a)(2)(E)(ii), which focuses on a court’s determination regarding an alien’s conduct."

The full text of Matter of Medina Jimenezhttps://www.justice.gov/eoir/page/file/1085701/download

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BIA Doubles Down; Finds Sponsoring or Exhibiting an Animal in Animal Fighting Venture to be CIMT

On remand from the Ninth Circuit, the Board of Immigration Appeals has again held that a conviction for sponsoring or exhibiting an animal in an animal fighting venture is a crime involving moral turpitude.  The Board rejected the Ninth Circuit's contention that non-fraudulent crimes should involve an intent to injure, actual infliction of injury, or a protected class of victims to qualify as crimes involving moral turpitude.  The Board then stated that it considered the crime of sponsoring or exhibiting an animal in an animal fighting venture to be of a similar nature to crimes of prostitution and incest.  Because this conduct "celebrates animal suffering for one’s personal enjoyment, it transgresses the socially accepted rules of morality and breaches the duty owed to society in general."

The full text of Matter of Ortega Lopez can be found here:

https://www.justice.gov/eoir/page/file/1085471/download

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Ninth Circuit finds Oregon Witness Tampering not Categorically CIMT

The Ninth Circuit has determined that Oregon's witness tampering statute is not a categorical match to the definition of a crime involving moral turpitude.  The plain text of the statute permits conviction if (1) a person induces or attempts to induce a person who is or may be called as a witness in official proceeding to offer false testimony; (2) a person induces or attempts to induce a person who is or may be called as a witness to unlawfully withhold any testimony; or (3) a person knowingly induces or attempts to induce a person to be absent from an official proceeding when the person was legally summoned. 

The statute does not suggest fraud, which the Court has defined as requiring that an individual employ false statements to obtain something tangible.  Neither impeding law enforcement nor wrongfully interfering with the administration of justice constitutes a tangible “benefit” for purposes of determining whether a crime involves fraudulent intent.  In addition, the statute does not involve an intent to injure another, an actual injury to another, or a protected class of victim.  Thus, the statute is overbroad.

"We conclude that the statute is divisible. Although both subsections (a) and (b) define the offense of witness tampering in Oregon, the subsections criminalize different conduct and require different elements for conviction."  It is thus clear from the face of the indictment and the plea agreement that Vasquez-Valle’s conviction tracked subsection (b) (inducing a person to be absent from an official proceeding).  The Court deemed this subsection not to be a crime involving moral turpitude.

The full text of Vasquez-Valle v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/10/13-74213.pdf

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Ninth Circuit Finds that DHS Erred by Placing Petitioner in Asylum Only Proceedings

The Department of Homeland Security (DHS) issued a removal order against Petitioner for overstaying his permitted time in the United States under the visa waiver program.  Petitioner then briefly departed the United States, and was paroled back.  Subsequently, he was placed in asylum-only proceedings, and his asylum application was denied.  The Court determined that Petitioner's brief departure from the United States executed the visa waiver overstay removal order, and as such, the DHS erred by placing him in asylum-only proceedings.  As such, there was no final order of removal before the Court to review, as the original order had been executed, and the denial of asylum did not qualify as a final order of removal because the denial of an asylum application in asylum-only proceedings merely “finalizes” DHS’s removal order of a visa waiver program entrant.  

The full text of Nicusor-Remus v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/08/15-70588.pdf

 

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Ninth Circuit finds that Nevada Conviction for Child Abuse and Neglect not a Crime of Child Abuse

The Nevada statute at issue defines as a misdemeanor (1) an act or omission (2) by a person “responsible for the safety or welfare of a child” (3) who has no prior child abuse convictions, (4) which act or omission “permits or allows” (5) the child “to be placed in a situation where the child may suffer physical pain or mental suffering” (6) as a result of the responsible person’s “abuse or neglect,” (7) even if “substantial bodily or mental harm does not result to the child.”

Like the generic definition of a crime of child abuse, the statute requires a mens rea of at least negligence.  However, the statute does not specify what probability of harm to the child the “situation” in which the child is placed must carry; it merely refers to situations “where the child may suffer physical pain or mental suffering” as a result of “abuse or neglect.”  The Court then assumed that a “reasonable foreseeability” standard would apply to the issue of the probability of harm. 

The generic definition of a crime of child abuse includes conduct that creates at least a “reasonable probability” or a likelihood of harm to a child. But the Nevada statute is even broader: It includes conduct that creates only a “reasonable foreseeability” of harm to a child. 

The Court remanded the case to allow the agency to determine if the application of the modified categorical approach was appropriate. 

The full text of Alvarez-Cerriteno v.  Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/08/16-73486.pdf

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Ninth Circuit Invalidates Illegal Reentry Conviction

Ochoa-Oregel (Defendant) unlawfully entered the United States in 2016 and was convicted of unlawful reentry in violation of 8 U.S.C. § 1326. Before his 2016 conviction for unlawful re-entry, Defendant had previously been ordered removed in 2008, based on a prior conviction for California domestic violence battery, Cal. Penal Code § 243(e)(1), in an in absentia proceeding. The government contends that Defendant lost his status as a legal permanent resident as a result of the 2008 removal. Defendant was again removed in 2011 in an expedited removal proceeding.

At the time of Defendant’s 2008 hearing before the immigration judge, the Ninth Circuit's precedent had established that California battery was not a categorical crime of violence. It was error to remove Defendant for a crime of domestic violence based on his California battery conviction. The 2008 in absentia removal cannot properly serve as a predicate for a conviction for illegal re-entry.

The 2011 removal order also cannot serve as a predicate for unlawful re-entry.  Defendant was stripped of the important legal entitlements that come with lawful permanent resident status through the legally erroneous decision that he had no opportunity to contest in 2008.  Among those protections is that lawful permanent residents cannot be removed on an expedited basis.  This means that the 2011 expedited removal order was also fundamentally unfair because it violated the process due to lawful permanent residents.

The Court emphasized that We emphasize that its "holding here is limited to the case where an alien is erroneously removed in absentia and did not have a meaningful opportunity to contest the order that ostensibly stripped him or her of lawful permanent resident status. We express no view about the effect of an order of removal that while legally erroneous was entered after an alien had a meaningful opportunity to contest removal."

The full text of Ochoa-Oregel v. United States can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/02/16-50413.pdf

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Ninth Circuit finds that Prohibition on Religious Practice is Persecution

The Ninth Circuit has determined that a petitioner who was prohibited from attending his house church suffered past persecution.  "By forbidding Petitioner from attending his home church, the Chinese police prevented him from practicing his faith and did so through coercive means. The harm Petitioner suffered was therefore ongoing and, under our asylum precedent, compelled a finding of past persecution."  Specifically, the Court noted that "the police here actively ensured that Petitioner could not practice his faith, forcing him and fellow congregants to report to the police station weekly and threatening him with arrest for noncompliance."

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/30/15-70617.pdf

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Ninth Circuit Discusses Consular Nonreviewability Doctrine

The Ninth Circuit has held that the consular nonreviewability doctrine does not impact a federal court's subject matter jurisdiction to hear a challenge to a visa denial.  The court concluded, however, that the APA provides no avenue for review of a consular officer’s adjudication of a visa on the merits.  The consular officer need only provide a facially legitimate and bona fide reasons for rejecting a visa application.

The full text of Allen v. Milas can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/24/16-15728.pdf

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Ninth Circuit Applies Exclusionary Rule to OCAHO Proceedings

Frimmel was the owner of several restaurants in Arizona, which were the targets of raids by the Maricopa County Sheriff's Office (MCSO) that were conducted in violation of the Fourth Amendment.  MCSO then shared information with ICE, who began an investigation into Frimmel's employment of immigrants who did not have employment authorization.  Frimmel moved to suppress the documents obtained by ICE before the Office of the Chief Administrative Hearing Officer (OCAHO), but his request was denied.  The Arizona state court, in the meantime, suppressed the evidence obtained by the MCSO in the state criminal proceedings brought against Frimmel, finding multiple defects in the warrant used to conduct the search.

The Court determined that the MCSO's conduct was an egregious violation of the Fourth Amendment.  Moreover, the Court found that ICE's evidence was fruit of the illegal search by MCSO, and that there was not sufficient attenuation between ICE obtaining the evidence and the illegal search.  Finally, the Court determined that MSCO had immigration enforcement in mind when it conducted its unlawful raids, and thus, application of the exclusionary rule would have proper deterrent effect.  As such, the Court reversed the administrative law judge's determination that the evidence obtained by ICE should not be suppressed in the OCAHO proceeding.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/26/16-73906.pdf

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Ninth Circuit finds that CA Felony Child Endangerment Conviction is Crime of Child Abuse

The Ninth Circuit has determined that a California felony conviction for child endangerment is a crime of child abuse.  In so doing, the Court deferred to the Board of Immigration Appeals' definition of a crime of child abuse, as outlined in Matter of Velazquez-Herrera and Matter of Soram.  The Court also rejected the petitioner's argument that the decision in Soram should not be applied retroactively to his conviction, finding that Soram was not a departure from prior agency precedent, but rather filled a void in unsettled law.  Judge Wardlaw wrote a lengthy dissent, arguing that the definition of a crime of child abuse in Soram is not entitled to deference, and that even if it is, it should not apply retroactively to the petitioner.

The full text of Martinez-Cedillo v. Sessions can be found here:

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

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Eighth Circuit Rejects Defense to Unlawful Voting

The petitioner, when obtaining a driver's license in Minnesota, did not attest to being a US citizen, but nevertheless, was registered to vote by the state and mailed a voter registration card.  The petitioner subsequently voted in an election.  In subsequent removal proceedings, she was deemed inadmissible for her unlawful voting, and her application for adjustment of status was denied.  The Court rejected her invocation of the defense of "entrapment by estoppel."  The Court noted that the sign in logs at the voting booths required the person to affirm that they are a US citizen.  

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

http://media.ca8.uscourts.gov/opndir/18/07/171400P.pdf

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Eighth Circuit Finds that Arkansas Convictions are Violent Felonies

The Eighth Circuit determined that the Arkansas statute criminalizing terroristic threats is divisible between making threats against a person and making threats against property, and then determined that the petitioner's conviction for threatening his girlfriend qualified as a violent felony under the Armed Career Criminal Act (ACCA).  In addition, a second-degree battery conviction, under the non-deadly weapon subsection, qualifies as a violent felony because it requires the infliction of serious physical injury, thus mandating the use of physical force.  Given the similar definitions of a violent felony under the ACCA and the definition of a crime of violence in the immigration context, this decision could have persuasive value in the immigration context.

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

http://media.ca8.uscourts.gov/opndir/18/07/172415P.pdf

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Eighth Circuit finds that Iowa Minutes of Evidence are not Shepard Documents

The Eighth Circuit has determined that Iowa minutes of evidence are not sufficiently reliable documents to be admitted under the Supreme Court's decision in Shepard v. United States.  Thus, a court may not consider the minutes of evidence as part of the modified categorical approach, unless the defendant expressly admits to the contents of the minutes as part of the plea proceeding.

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

http://media.ca8.uscourts.gov/opndir/18/07/171850P.pdf

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Eighth Circuit Remands Appeal of Motion to Reopen

The Eighth Circuit has remanded a motion to reopen filed by an asylum seeker who was forced to leave the United States to seek emergency medical treatment, and who missed her removal hearing as a result.  The Court found that the Board of Immigration Appeals failed to determine if the emergency medical procedure qualified as an exceptional circumstance justifying her failure to appeal, and also declined to find that the applicant had necessarily abandoned her asylum application.

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

http://media.ca8.uscourts.gov/opndir/18/08/171584P.pdf

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Seventh Circuit finds that BIA does not have Authority to Issue Removal Order in the First Instance

The Seventh Circuit has determined that the Board of Immigration Appeals does not have the authority to issue a removal order in the first instance.  Thus, where the Immigration Judge determined that the petitioner was not removable, and the Board disagreed, the entry of a removal order by the Board was ultra vires.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-31/C:17-1253:J:Sykes:aut:T:fnOp:N:2195397:S:0

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Sixth Circuit Reverses Discretionary Denials of Asylum and 237(a)(1)(H) Waiver

The Sixth Circuit reversed the BIA's discretionary denial of asylum because it was inconsistent with the Board's precedent in Matter of Pula.  The BIA denied asylum as a matter of discretion solely because the applicant had used a stolen passport to enter the country, but Pula states that asylum may not be denied as a matter of discretion based solely on the applicant's circumvention of proper immigration procedures.  In addition, the BIA acknowledged that it is more likely than not that the petitioner would face harm due to his religion if returned to Syria.  According to its own precedent, this should “outweigh all but the most egregious adverse factors.”  The irregular entry cannot be deemed such an egregious adverse factor.  Thus, the denial of asylum on discretionary grounds was also inconsistent with this BIA precedent.  

With respect to the waiver, the Court found that the BIA applied the wrong standard of review to the IJ's factual findings, engaging in a de novo review instead of a clearly erroneous standard.

The Court found the petitioner statutorily eligible for the waiver, too.  The Government argued that because the petitioner was inadmissible at the time of his admission as a nonimmigrant as well as at the time of his adjustment of status.  The waiver could cure his inadmissibility at the time of his adjustment only.  However, the language of the waiver indicates that "a petitioner who is eligible for a waiver of removal is 'also' eligible for a 'waive[r] [of] removal based on the grounds of inadmissibility directly resulting from [the relevant] fraud or misrepresentation.'  "The provision thus contemplates circumstances where an already admitted alien seeks to cure a prior misrepresentation."

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

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0154p-06.pdf

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Fifth Circuit Reverses Internal Relocation Finding

The Fifth Circuit has reversed a finding by the agency that an asylum applicant who had experienced past persecution could safely relocate within India.  "Before discussing the record evidence, we first note that the DHS produced no evidence on this issue despite the fact that it bore the burden of proof."  Reliance solely on the general reports submitted by the petitioner was insufficient to demonstrate that there is “a specific area of the country” where the petitioner does not have a well-founded fear of persecution.

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

http://www.ca5.uscourts.gov/opinions/pub/17/17-60320-CV0.pdf

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Fourth Circuit Finds New Jersey Conspiracy Conviction to be Controlled Substance Offense

The Fourth Circuit, applying Matter of Beltran, has found that a New Jersey conviction for conspiracy is a controlled substance violation.  The Court rejected that argument that a conspiracy charge must be analyzed under the categorical approach in the same way as any other conviction, because inchoate crimes suggest the commission of another offense.  Instead, the Immigration Court may consult the record of conviction to determine what was the object of the conspiracy.  In the instant case, the indictment indicated that the petitioner was conviction of conspiracy to distribute marijuana.  As such, his conviction qualifies as a controlled substance offense.

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

http://www.ca4.uscourts.gov/opinions/171213.P.pdf

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