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Eleventh Circuit Construes Stop-Time Rule for Lawful Permanent Residents

The Eleventh Circuit has determined that a lawful permanent resident not seeking admission can still trigger the stop-time rule (which stops the accrual of continuous residence required for cancellation of removal) if he is convicted of an offense that renders him inadmissible. In so doing, the court joined the Second, Third, and Fifth Circuits, while diverging from the Ninth Circuit.

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

http://media.ca11.uscourts.gov/opinions/pub/files/201713055.pdf

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Ninth Circuit Analyzes Travel Act under Categorical Approach

The Board of Immigration Appeals (“BIA”) concluded that Myers is removable based on his felony conviction under the Travel Act, 18 U.S.C. § 1952(a)(3), for traveling in interstate commerce to facilitate an unlawful activity. The unlawful activity facilitated by Myers was identified as “possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1).” The BIA held that Myers is removable under 8 U.S.C. § 1227(a)(2)(B)(i) because he had been convicted of a controlled substance offense. “Although not all convictions under the Travel Act represent violations related to controlled substances, meaning that the statute is not a categorical match to the removal statute, we conclude that the Travel Act is divisible in that respect. We further conclude that Myers’s conviction qualifies as a controlled substance offense under the modified categorical approach.” The court noted that In the Ninth Circuit, a specific “unlawful activity” is an element of a Travel Act offense.

Myers also sought relief in the form of cancellation of removal under 8 U.S.C. § 1229b. The BIA concluded that Myers is ineligible for that relief because he had not been present in the United States prior to the initiation of the removal proceedings against him for the number of years required under the statute. The court noted that the statute states that the relevant time period ends “when the alien is served a notice to appear.” 8 U.S.C. § 1229b(d)(1). The BIA used the date on which the notice to appear was issued, not the date when it was served on Myers.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/25/17-71416.pdf

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Ninth Circuit Finds H-1B Holder Ineligible for Adjustment of Status

Ma’s employer filed for an extension of his H-1B visa, but it was denied, and his employer failed to file an application for status adjustment within 180 days of the expiration of his H-1B visa. Because the application to extend the H-1B visa was denied, Ma was without lawful status in this country for 331 days before he applied to adjust his status—well over the 180 days permitted by 8 U.S.C. § 1255(k)(2)(A), which would have otherwise protected him from removal. He was, however, legally authorized to work in the country during the months between the expiration of his H-1B visa and the denial of his application for an H-1B extension pursuant to 8 C.F.R. § 274a.12(b)(20). Nonetheless, because 8 C.F.R. § 1245.1(d) does not recognize regulatory employment authorization as conferring lawful immigration status for purposes of status adjustment under 8 U.S.C. § 1255(k)(2)(A), the court concluded that Ma is ineligible for status adjustment.

“While nonimmigrant workers like Ma may legally continue working in this country for up to 240 days while they wait to hear back from the USCIS on their extension applications, they do not have lawful status during this period of time for purposes of status adjustment.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/02/15-73520.pdf

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Ninth Circuit finds Lewd and Lascivious Acts Conviction is not CIMT or Crime of Child Abuse

The Ninth Circuit has determined that a conviction under California Penal Code 288(c)(1) (lewd and lascivious acts on a child who is 14 or 15 years old when the defendant is at least 10 years old than the the child) is neither a crime involving moral turpitude nor categorically a crime of child abuse. A crime under § 288(c)(1) contains five elements: (1) willfully and lewdly; (2) committing any lewd or lascivious act; (3) on a child ages 14 or 15; (4) with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the defendant or the child; and (5) the defendant must be at least ten years older than the child.

The “lewd or lascivious” element of the crime focuses on the defendant’s sexual intent, rather than the act performed. If the defendant has the required intent, then any touching violates § 288, even if the touching is outwardly innocuous and inoffensive. Physical affection among relatives, generally considered acceptable conduct, nonetheless could satisfy the ‘any touching’ aspect of section 288. Even constructive touching can violate § 288(c)(1). If the minor touches himself, that act is imputable to the defendant as if the touching had been actually done by his own hands. A person may violate § 288(c)(1) by making sexual requests over the telephone, or through text messages.

The mens rea requirement of § 288(c)(1) has also been expansively construed. Section 288(c)(1) requires that the defendant act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or of the minor. But the statute does not require that the defendant know that the minor is underage. Under California law, a good faith and reasonable mistake of age is a defense to statutory rape, but it is not a defense to a charge under § 288(c)(1).

Because § 288(c)(1) requires only sexual intent, and because a good-faith reasonable mistake of age is not a defense, a defendant is not required to have evil or malicious intent. Section 288(c)(1) thus lacks the corrupt scienter requirement that is the touchstone of moral turpitude. Nor does § 288(c)(1) require intent to injury or actual injury. Any touching, even if consensual, outwardly innocuous and inoffensive, and innocently and warmly received, can violate § 288(c)(1). Section 288(c)(1) does involve a protected class of persons—minors aged 14 or 15. But not all criminal statutes intended to protect minors establish crimes involving moral turpitude, if the conduct at issue is relatively minor.

“We hold that § 288(c)(1) is not categorically a crime involving moral turpitude. Because the statute contains a single, indivisible set of elements, the modified categorical approach does not apply.”

The BIA defines crime of child abuse, child neglect, or child abandonment as a “unitary concept” that encompasses “any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child’s physical or mental well-being, including sexual abuse or exploitation.” The “maltreatment” element requires either proof of actual injury or proof of a “sufficiently high risk of harm to a child.”

Section 288(c)(1) is broader than the generic definition of a “crime of child abuse” in two ways. First, the generic definition requires that a defendant act with a mens rea of at least criminal negligence. Section 288(c)(1) has no such requirement. It requires a defendant to have acted “willfully,” but this requirement applies only to the defendant’s commission of the act. Section 288(c)(1) requires only that a defendant did not act accidentally; it does not “require any intent to violate law, or to injure another, or to acquire any advantage.”

Second, § 288(c)(1) does not require proof of actual injury, or a “sufficiently high risk of harm,” as an element of the offense. Section 288(c)(1) applies irrespective of whether the touching is outwardly innocuous, or whether the minor is aware of the nature of the contact at all. “We hold that Cal. Penal Code § 288(c)(1) is not categorically a ‘crime of child abuse’ under 8 U.S.C. § 1227(a)(2)(E)(i).”

The full text of Menendez v. Whitaker can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/08/14-72730.pdf

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Ninth Circuit Rejects Vagueness Challenge to Particularly Serious Crime Bar

The Ninth Circuit has revisited its jurisprudence regarding whether the particularly serious crime bar is unconstitutionally vague. The court recognized that the Supreme Court’s most recent case law on vagueness rules out the legal standard that‘a statute is void for vagueness only if it is vague in all its applications. Nevertheless, even with this updated case law in mind, the court found the statute not to be unconstitutionally vague.

“We know with certainty that a minor traffic infraction is not particularly serious and that a heinous, violent crime is particularly serious. But for the crimes in between, the statute provides little guidance. Instead, the statute provides an uncertain standard to be applied to a wide range of fact-specific scenarios. In that sense, the standard is uncertain. But that kind of uncertainty does not mean that a statute is unconstitutionally vague. Many statutes provide uncertain standards and, so long as those standards are applied to real world facts, the statutes are almost certainly constitutional.”

“Critically, the particularly serious crime inquiry in 8 U.S.C. § 1231(b)(3)(B)(ii) applies only to real-world facts. Unlike many standards in the immigration context, the particularly serious crime inquiry requires the BIA to assess what the alien actually did.”

The full text of Guerrero v. Whitaker can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/09/15-72080.pdf

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Ninth Circuit Denies Petition for Rehearing En Banc on the CIMT Vagueness Case

The Ninth Circuit has declined a request for rehearing on the issue as of whether the term “crime involving moral turpitude” is unconstitutionally vague. In so doing, the Court also confirmed that a federal conviction for bribery is a crime involving moral turpitude because the statute requires a “corrupt mind.”

The full text of Martinez de Ryan v. Whitaker can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/16/15-70759.pdf

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Ninth Circuit Remands Rodriguez Case to District Court

The Ninth Circuit has remanded its seminal prolonged detention case, Rodriguez v. Marin, to the District Court for further proceedings. The case was remanded to the Ninth Circuit from the Supreme Court, who reversed the Ninth Circuit’s statutory construction, but who left open the possibility that the Constitution compels regular bond hearing for immigration detainees.

On remand, the District Court must address:: (1) whether the class certified by the district court should remain certified for consideration of the constitutional issue and available class remedies; (2) whether classwide injunctive relief is available under 8 U.S.C. § 1252(f)(1); (3) whether a Rule 23(b)(2) class action (a) remains the appropriate vehicle in light of Walmart Stores, Inc. v. Duke, 564 U.S. 338 (2011), and (b) whether such a class action is appropriate for resolving Petitioners’ due process claims; (4) whether composition of the previously identified subclasses should be reconsidered; (5) the minimum requirements of due process to be accorded to all claimants that will ensure a meaningful time and manner of opportunity to be heard; and (6) a reassessment and reconsideration of both the clear and convincing evidence standard and the six-month bond hearing requirement.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/19/13-56706.pdf

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Eighth Circuit Determines that Missouri Second-Degree Domestic Assault is not a Crime of Violence

The Eighth Circuit has determined that a Missouri second-degree domestic assault conviction that criminalizes recklessly causing injury to a household member does not qualify as a crime of violence. The court noted that the statute encompassed reckless driving, which is outside the scope of a crime of violence under the federal sentencing guidelines. Given the similar definitions of a crime of violence under the sentencing guidelines and the immigration law, this case could have persuasive value in the immigration context.

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

http://media.ca8.uscourts.gov/opndir/18/11/172868P.pdf

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Eighth Circuit finds that North Dakota Aggravated Assault Statute is not a Crime of Violence

The Eighth Circuit has determined that a North Dakota conviction for aggravated assault is overbroad and divisible with respect to the definition of a crime of violence under the sentencing guidelines. The court determined that subsection (a) of the statute includes reckless driving, which is outside the definition of a crime of violence. Given the similarity between the definition of a crime of violence in the immigration context and the sentencing guidelines, this case could have persuasive value in the immigration context.

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

http://media.ca8.uscourts.gov/opndir/18/09/173034P.pdf

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Sixth Circuit Upholds Habitual Drunkard Good Moral Character Bar

The Sixth Circuit has determined that the bar to good moral character for being a “habitual drunkard” does not violate equal protection. However, the court also determined that suffering from alcoholism alone does not constitute being a habitual drunkard. Instead, a court must examine if the individual’s alcoholism is also associated with harmful conduct.

The full text of Tomasczcuk v. Whitaker can be found here:

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0254p-06.pdf

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Fifth Circuit Denies Motion to Reopen for Petitioner who Failed to Correct his Address

The petitioner was served with a Notice to Appear bearing an incorrect address - the name of his street was misspelled. The petitioner did not file a change of address form to correct the misspelling, though he claimed that he had provided the correct address to the immigration official. The Immigration Court mailed a notice of hearing to the misspelled address, the petitioner did not attend his hearing, and he was order removed in absentia. He later moved to reopen his proceedings, and his motion was denied.

The Fifth Circuit affirmed the agency’s decision. “An alien’s statutory obligation to keep the immigration court apprised of his current mailing address includes an obligation to correct any errors in that address listed on the NTA.”

The full text of Mauricio-Benitez v. Sessions can be found here:

http://www.ca5.uscourts.gov/opinions/pub/17/17-60792-CV0.pdf

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Fifth Circuit Applies Addition of Drug to CSA Prospectively Only

The petitioner was arrested for possession of AB-CHMINACA. While his criminal case pending, AB-CHMINACA was added to the federal controlled substance schedules. The petitioner subsequently pled guilty. He was later charged with inadmissibility for the conviction. He challenged that finding, arguing that penalizing him for conduct involving the substance prior to the addition of the substance to the CSA was impermissible retroactive. The Fifth Circuit agreed.

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

http://www.ca5.uscourts.gov/opinions/pub/17/17-60529-CV0.pdf

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Fifth Circuit Prohibits Use of Convictions Entered after Naturalization as Basis for Removal

Okpala was a naturalized US citizen when he was convicted of various drug offense. He was subsequently denaturalized, and the Department of Homeland Security sought to use the drug convictions as a basis for removing him. The Fifth Circuit reversed, finding that the convictions were entered while Okpala was a US citizen, and as such, could not be used as predicate offenses to remove him. The court focused on the language of the aggravated felony statute as requiring “an alien” to be convicted after admission..

The full text of Okpala v. Whitaker can be found here:

http://www.ca5.uscourts.gov/opinions/pub/17/17-60391-CV0.pdf

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Third Circuit Examines New Jersey Drug Trafficking Convictions

The Third Circuit has determined that a New Jersey convictions for possessing cocaine with intent to distribute, distributing cocaine, and conspiring to possess cocaine with intent to distribute all qualify as drug trafficking aggravated felonies. In so doing, the court held that New Jersey attempt law is coextensive with federal law in that both require a substantial step that strongly corroborates the actor’s criminal purpose, and both hold that solicitation can count as a substantial step. The court recognized that its decision created a circuit split with the Ninth Circuit on the definition of attempt under the Controlled Substances Act.

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

https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1827&context=thirdcircuit_2018

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Third Circuit Requires Notice and an Opportunity to Present Corroboration

The Third Circuit has reaffirmed that an applicant for asylum, withholding of removal, and/or protection under the Convention Against Torture must be given notice of corroborating documentation required and the opportunity to present it. The court came to this conclusion, despite the contrary conclusion reached by the Board of Immigration Appeals in Matter of L-A-C-.

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

https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1785&context=thirdcircuit_2018

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Second Circuit Addresses Citizenship

Jaen was born on May 12, 1972 in Panama. At the time of Jaen’s birth, his mother, Leticia Rogers Boreland, was married to U.S.-citizen named Jorge Boreland. Jaen’s Panamanian birth certificate, however, lists Liberato Jaen as his father, a man with whom Leticia had an extramarital relationship during her marriage to Jorge. the sole question presented in this appeal is whether Jorge Boreland was Jaen’s “parent” for the purposes of having acquired United States citizenship at birth under former INA § 301(a)(7). The court held that the INA incorporates the common law meaning of “parent” into former Section 1401(a)(7), such that a child born into a lawful marriage is the lawful child of those parents, regardless of the existence or nonexistence of any biological link.

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

http://www.ca2.uscourts.gov/decisions/isysquery/acaa41e5-ff31-4711-a905-0cd79a8621e5/1/doc/17-1512_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/acaa41e5-ff31-4711-a905-0cd79a8621e5/1/hilite/

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First Circuit Sustains Appeal of Denied Motion to Reopen based on Changed Country Conditions

The First Circuit has sustained an appeal of a changed country conditions motion to reopen, filed by an Indonesian evangelical Christian.

“For aught that appears, the BIA seems to have evaluated the petitioner's motion to reopen as if he were a prototypical Indonesian Christian. The record, however, belies this assumption. In his motion to reopen, the petitioner asserted — and the government did not dispute — that the petitioner subscribes to a more particularized subset of the Christian faith: he is an evangelical Christian, for whom public proselytizing is a religious obligation. Yet, in terms of the prospect of persecution arising out of changed country conditions, the BIA wholly failed to evaluate whether and to what extent there is a meaningful distinction between Christians who practice their faith in private and evangelical Christians (such as the petitioner), for whom public proselytizing is a central tenet. So, too, the BIA neglected to consider whether country conditions had materially changed with respect to public and private reactions (including vigilante violence) toward evangelical Christians. Finally, the BIA neglected to consider whether attitudes in Indonesia had materially changed with respect to persons making public religious statements.”

“The record is replete with copious new evidence submitted by the petitioner and unavailable in 2006, which might well serve to ground a finding (or at least a reasonable inference) that country conditions have steadily deteriorated over the past twelve years. In particular, Islamic fundamentalist fervor seems to have intensified, such that evangelical Christians may now be at special risk in Indonesia. “

The court very forcefully differentiated the situation for non-Evangelical Christians from that of Evangelical Christians. “To be sure, the government tries to pigeonhole the petitioner's case as merely another link in a chain of four cases in which we have rejected claims by Indonesian Christians that country conditions have materially changed. This case, though, is readily distinguishable. None of the earlier cases involved an alien who held himself out to be an evangelical Christian. Accordingly, the religious beliefs of those aliens — and therefore their experiences with religious intolerance — were different in kind, not just in degree.”

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

http://media.ca1.uscourts.gov/pdf.opinions/17-2183P-01A.pdf

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First Circuit Rejects PSG of "Single mothers who are Living without Male Protection"

The First Circuit has rejected the particular social group of “single mothers who are living without male protection and cannot relocate elsewhere in the country.” "The amorphous nature of Petitioner's sprawling group precludes determinacy and renders the group insufficiently particular. Her proffered social group is overly broad and potentially encompasses all single mothers in El Salvador who may find themselves unable to relocate in the country. Moreover, exactly what constitutes ‘without male protection’ is an ‘open question’ and possibly a subjective determination."

The full text of Aguilar-De Guillen v. Sessions:

http://media.ca1.uscourts.gov/pdf.opinions/17-2095P-01A.pdf

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Second Circuit Construes Physical Custody for Citizenship

Under the Immigration and Nationality Act (INA), a child under the age of eighteen who is a legal permanent resident (LPR) of the United States acquires citizenship when that child’s parent becomes a U.S. citizen if the child is residing in the United States in the “legal and physical custody” of the citizen parent. 8 U.S.C. § 7 1431(a). In this matter, the Second Circuit determined that a child who was in juvenile detention when his father naturalized was still in his father’s legal and physical custody, and as such, acquired derivative citizenship.

“[A] parent’s physical custody of a child does not cease due to a child’s brief, temporary separation from a parent.” “State family law definitions of the term ‘physical custody’ are often at odds with the government’s assertion that a child must be ‘actually resid[ing]’ with a parent for the child to be in that parent’s ‘physical custody.’ For example, physical custody can be split between parents, and two parents can share and retain ‘physical custody’ even if the child does not actually reside in any one parent’s home full‐time.” “Indeed, in the state where Khalid lived with his family prior to his detention and conviction, ‘[p]hysical custody . . . means the right and obligation to provide a home for the child and to make the day‐to‐day decisions required during the time the child is actually with the parent having such custody.’” “The BIA’s decision reduces ‘physical custody’ to an ‘actual residency’ requirement at some point after the citizen parent naturalizes, but before the child’s eighteenth birthday—even in cases involving short, temporary separations, like this one. State law rarely uses such a narrow definition of physical custody, and we do not think that ‘physical custody’ is determined exclusively by the small moment in time immediately following a citizen parent’s naturalization, even when looking to state law for guidance.”

In addition, “the history of the derivative citizenship statute supports reading the statute—and the term ‘physical custody, in particular—to ensure that a child’s ‘real interests’ are in the United States through a genuine connection between the United States citizen parent and that parent’s child.” “Here, there is no dispute that Khalid had such a connection to his United States citizen father at the time Khalid’s father naturalized. Khalid had lived at home with his parents since entering the United States. Thus, Khalid’s acquisition of derivative citizenship does not violate Congress’s demand that the child has a strong connection to the United States to acquire derivative citizenship.”

:Finally, we note that we do not deal in this case with a juvenile adjudicated guilty and imprisoned pursuant to a court‐ordered sentence at the time the juvenile claims to have acquired citizenship. There may be reason in such situations to determine that a minor is not in a naturalizing parent’s physical custody for purposes of 8 U.S.C. § 1431.”

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

http://www.ca2.uscourts.gov/decisions/isysquery/77c6d41c-6bd7-4c5a-8d9a-3ffb65202f94/10/doc/16-3480_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/77c6d41c-6bd7-4c5a-8d9a-3ffb65202f94/10/hilite/

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Third Circuit Limits Reach of 237(a)(1)(H) waiver

The Third Circuit has determined that a person who is convicted of making false statements in connection with a fraudulent marriage, and who is subsequently charged with deportability for a crime involving moral turpitude, cannot use a waiver under 237(a)(1)(H) of the INA to reach the crime involving moral turpitude ground.

“The fraud waiver ‘also operate[s] to waive removal based on the grounds of inadmissibility directly resulting’ from the underlying fraud. 8 U.S.C. §1227(a)(1)(H). But Tima’s removability under §1227(a)(2)(A)(i) for a conviction of a crime involving moral turpitude is not based on a ‘ground of inadmissibility.’ So the fraud waiver does not reach that clause. This conclusion follows from the Act’s text, structure, and application of the canons of construction.”

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

http://www2.ca3.uscourts.gov/opinarch/164199p.pdf

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