These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
The Ninth Circuit has determined that where the agency fails to make an explicit adverse credibility determination, a petitioner enjoys a finding of credibility before the federal appellate court.
The full text of Dai v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/03/08/15-70776.pdf
The Ninth Circuit has granted the petition for en banc rehearing in Marinelarena v. Sessions, a decision that addresses whether an inconclusive record of conviction can meet a petitioner's burden of proving eligibility for immigration relief.
The order granting the motion for en banc rehearing can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/03/29/14-72003.pdf
The Attorney General referred the decision of the Board of Immigration Appeals (Board) to himself for review of issues relating to whether being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum and withholding of removal, ordering that the case be stayed during the pendency of his review.
The decision to refer this case is widely viewed as an attempt to undermine the Board's precedent in Matter of A-R-C-G-, which recognizes that survivors of domestic violence may qualify for asylum.
The full text of the order in Matter of A-B- can be found here:
https://www.justice.gov/eoir/page/file/1041481/download
The Eighth Circuit has determined that a Missouri conviction for second-degree robbery is a violent felony under the Armed Career Criminal Act (ACCA). The statute has as an element the use of physical force upon another person or the threat of an immediate use of such force because it requires the use of force capable of preventing or overcoming resistance. The court overruled its prior, contrary decision in United States v. Bell. Given the similar definition of a violent felony under the ACCA and a crime of violence in the Immigration and Nationality Act, this decision could have persuasive value in the immigration context.
The full text of United States v. Swopes can be found here:
The Eighth Circuit has determined that a Missouri conviction for second-degree burglary is not a violent felony under the Armed Career Criminal Act (ACCA) because it criminalizes conduct outside the generic definition of burglary offenses. The court found that the statute was overbroad because it criminalized entry into any building or inhabitable structure, and that these alternatives were means and not elements of the statute. Given the similarity between the definition of burglary under the ACCA and in immigration proceedings, this case may have persuasive value in the immigration context.
The full text of United States v. Naylor can be found here:
The Fourth Circuit has determined that a Maryland conviction for sexual solicitation of a minor is not categorically a crime involving moral turpitude (CIMT). The court noted that the Board of Immigration Appeals' (BIA) decision in Matter of Silva Trevino (in effect at the time of the petitioner's conviction) deemed a sexual offense against a minor to be a CIMT only if the statute required the defendant to know (or should know) the victim's age. The Maryland statute at issue, however, had no such knowledge requirement. In the instant case, the BIA issued a published decision, reversing its previous precedent, and finding that a sex offense involving a minor could be a CIMT even absent a requirement that the defendant know or should know the victim's age, even if the conviction involved particularly young victims or a sufficient age difference between the victim and the defendant. The BIA deemed the petitioner's conviction to be a CIMT under this new definition.
While the Fourth Circuit recognized that the BIA has the authority to change its precedent, it emphasized that the BIA must provide a reasoned explanation for doing so. In the instant case, the BIA failed to explain its sudden departure in precedent. "Here, we are without a reasoned explanation from the Board for its change in position. And without one, we cannot know whether and how the Board has accounted for the prospect that its prior policy may have engendered serious reliance interests in aliens who pled guilty to certain sexual offenses under the Silva-Trevino regime. Because the Board’s path from the Silva-Trevino cases to Jimenez-Cedillo’s cannot reasonably be discerned, its decision is arbitrary and capricious and must be set aside."
The Fourth Circuit remanded to allow the BIA to explain its departure in precedent, and also to determine if any new definition of a CIMT could be retroactively applied to Jimenez-Cedlllo.
The full text of Jimenez-Cedillo v. Sessions can be found here:
http://www.ca4.uscourts.gov/opinions/171477.P.pdf
The Fourth Circuit has rejected a request to apply the full scope of the exclusionary rule to evidence obtained in violation of the Fourth Amendment and used by the government in Immigration Court proceedings. The court affirmed that the exclusionary rule is only applicable in cases of egregious violations of the Fourth Amendment. This standard applies when state or local law enforcement violate the Fourth Amendment, as well as when federal officials commit the violation. "A stop or seizure based solely on an abuse of an officer’s legal authority and without reasonable suspicion of criminal activity will usually be egregious."
The full text of Sanchez v. Sessions can be found here:
The Third Circuit has determined that a New Jersey conviction for receipt of stolen property in the third degree qualifies as an aggravated felony. The mens rea element of the statute - which requires a defendant to know the property is stolen or to believe that it is probably stolen - meets the mens rea requirement enumerated in Matter of Deang.
The full text of Lewin v. Attorney General can be found here:
The Second Circuit has determined that when evaluating the deportability of a respondent based on a drug conviction, the agency must compare the statute of conviction to the Controlled Substances Act (CSA) as it was in effect at the time of the person's conviction. Thus, even if the CSA is amended after the person's conviction but before his removal proceedings, it is the text of the CSA at the time of the conviction that is applicable.
The full text of Doe v. Sessions is available here:
The Second Circuit has deferred the Board of Immigration Appeals' determination that there is no duress exception to the material support for terrorism bar. The court further determined that petitioners subject to the bar who provided the support involuntarily have no protected liberty interest in the discretionary grant of the waiver of the bar that can be granted by the Secretary of Homeland Security. "There is therefore no merit to Hernandez’s due process challenge to either the denial of her waiver application or to the waiver system in general."
The full text of Hernandez v. Sessions can be found here:
The Third Circuit has deferred to the Board of Immigration Appeals' definition of a crime of child abuse. In addition, the Court found that a Pennsylvania conviction for unlawful contact with a minor meets this definition, even though it criminalizes mere communication with a minor, because the communication must be for the purpose of an illicit sexual act, and thus, poses a significant risk of harm to the child.
The full text of Mondragon-Gonzalez v. Attorney General can be found here:
The Fifth Circuit has determined that whether a petitioner has acted with due diligence, such as would toll equitably toll the filing deadline for a motion to reopen, is a question of fact. As such, when a petitioner is subject to the jurisdictional limitations applicable to certain criminal convictions, the court has no jurisdiction to review whether the petitioner has acted with the requisite diligence.
The full text of Penalva v. Sessions can be found here:
http://www.ca5.uscourts.gov/opinions/pub/16/16-60286-CV0.pdf
The Ninth Circuit has determined that a Washington conviction for attempted first degree murder is a crime of violence under the federal sentencing guidelines. In so doing, the court affirmed that even a "slight, nonviolent act with the intent to cause another’s death" would pose a threat of violent force sufficient to satisfy the definition of a crime of violence. Given the similar definitions of a crime of violence in the sentencing guidelines and the Immigration and Nationality Act, this decision could have persuasive impact in immigration proceedings.
The full text of US v. Studhorse II can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/03/02/16-30299.pdf
The Ninth Circuit has determined that a California conviction for sodomy of a victim who is unable to consent is a rape aggravated felony.
The full text of Elmakhzoumi v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/03/01/16-16232.pdf
The Supreme Court has determined that immigrants detained as arriving aliens or as mandatory detainees due to certain criminal convictions are not entitled to bond hearings under the statutory language which authorizes their detention. In addition, discretionary detainees who are not granted bond because they cannot prove they are not a flight risk or danger to the community are not entitled to periodic reviews of their detention. The Court remanded the case to the Ninth Circuit to address whether the due process protections of the Constitution mandate bond hearings for these detainees.
The decision in Jennings v. Rodriguez can be found here:
https://www.supremecourt.gov/opinions/17pdf/15-1204_f29g.pdf
The Eleventh Circuit has determined that a Florida drug statute criminalizing the possession, sale, purchase, manufacture, delivery, or bringing into the state certain controlled substances to be both overbroad and indivisible when compared to the definition of a drug trafficking aggravated felony. The least of the acts it criminalized—mere possession of a listed narcotic—is not a felony under the Controlled Substances Act (CSA). The court further determined that the various acts criminalized under the statute are alternative means, and not alternative elements, because a jury need not determine which of the six acts was involved in order to convict a defendant.
The full text of Cintron v. Attorney General can be found here:
http://media.ca11.uscourts.gov/opinions/pub/files/201512344.pdf
The Second Circuit has deferred to the Board of Immigration Appeals' decision in Matter of L-A-C-, finding that the REAL ID Act does not require the IJ to identify the specific evidence necessary to meet the applicant's burden of proof and to provide an automatic continuance for the applicant to obtain that evidence prior to rendering a decision on the application. In so doing, the Court rejected the Ninth Circuit's decision in Ren v. Holder.
The full text of Wei v. Sessions can be found here:
The Ninth Circuit has determined that a District Court maintains the authority to naturalize an applicant, even if removal proceedings are pending. According to the government, 8 U.S.C. § 1429 precluded a court from considering a naturalization application when the applicant had been placed in removal proceedings. "Because the USCIS did not issue final decisions on the Yiths’ naturalization applications within 120 days after their examinations, the district court had jurisdiction to adjudicate their naturalization applications under 8 U.S.C. § 1447(b) and correctly rejected the government’s argument that the commencement of removal proceedings stripped the district court of subject matter jurisdiction." Moreover, § 1447(b) applies only to the Attorney General, and thus, the existence of an on-going removal proceeding does not strip the District Court of authority to adjudicate a naturalization application.
The court distinguished the instant scenario from one in which the agency denies a naturalization application because removal proceedings are pending. "Unlike § 1421(c), which applies when an agency denies an application, § 1447(b) applies when the government fails to make a determination within a 120-day period and gives the district court jurisdiction over the entire 'matter.' Here, the USCIS did not deny the Yiths’ naturalization applications, and so the district court’s review is not limited to the reason for the agency’s denial, but extends to the entire matter (i.e., the application for naturalization) that was pending before the agency.” "[W]e adopt the straightforward reading of the statute that the USCIS fails to make a determination under § 1447(b) when it fails to deny the applications before the statutory deadline."
The Court also considered the language in § 1429 that the government may not consider an applicant’s naturalization application “if there is pending against the applicant a removal proceeding pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act.” The Yiths argued that § 1429 does not apply to them by its terms because their removal proceeding was not pursuant to a warrant of arrest. The government argued that the Court should defer to the DHS’s regulatory interpretation of “warrant,” which states that for the purposes of 8 U.S.C. § 1429, "a notice to appear issued under 8 CFR part 239 (including a charging document issued to commence proceedings under sections 236 or 242 of the Act prior to April 1, 1997) shall be regarded as a warrant of arrest.”
The Court disagreed, finding that the meaning of “warrant of arrest” in § 1429 is unambiguous. Specifically, a warrant of arrest is is a writ issued under § 1226 authorizing law enforcement personnel to arrest and detain an alien pending the results of removal proceedings. This document is distinct from a Notice to Appear. "Although the Yiths received a notice to appear, they were not subject to 'a warrant of arrest issued under the provisions' of Chapter 12 of the INA. Accordingly, their removal proceedings were not pursuant to such a warrant of arrest, and this portion of § 1429 was inapplicable to their case." "By its terms, § 1429 precludes only the executive branch from considering an applicant’s naturalization application, and only when there is pending against the applicant a removal proceeding pursuant to a warrant of arrest."
The full text of Yith v. Nielsen can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/02/07/16-15858.pdf
The Board of Immigration Appeals (BIA) has reaffirmed its prior determination that a conviction for misprision of a felony is a crime involving moral turpitude. "Considering the language of the misprision statute, we conclude that the affirmative act of concealing a known felony is deceitful and dishonest and is therefore reprehensible conduct that involves moral turpitude, regardless of whether the underlying felony is also a crime involving moral turpitude."
IThe BIA recognized that its decision was contrary to the Ninth Circuit's caselaw on the topic, and indicated that it would apply the Ninth Circuits decision in Robles-Urrea v. Holder to any cases arising within the Ninth Circuit.
The full text of Matter of Mendez can be found here:
The Board of Immigration Appeals (BIA) has determined that a judge may take into account statements made during border and airport interviews when assessing an applicant's credibility. However, the BIA recognized certain limitations on the reliability of these interviews. "The import of the case law regarding these DHS interviews is that, as a preliminary issue, it is necessary to consider whether there are persuasive reasons to doubt the alien’s understanding of the interviewer’s questions. The most basic consideration is whether an interpreter was provided if one was requested. If the alien’s statements from the interview are being contrasted with his or her subsequent testimony, it is important to have a detailed and reliable recitation of the questions and answers from the interview. Further, to support a finding that the statements are actually inconsistent, the questions asked during the interview should be designed “to elicit the details of an asylum claim,” and the interviewer should ask follow-up questions to develop the alien’s account." Despite recognizing these limitations, the BIA determined that under the REAL ID Act, there is a presumption that interviews of this nature are proper to consider in an adverse credibility determination.
The full text of Matter of J-C-H-F- can be found here:
