Viewing entries in
New Case Law

Comment

SCOTUS Limits Deference to Agency Interpretation of Regulations

The Supreme Court has limited the instances in which deference will be owed to an agency’s interpretation of its own regulations (known as Auer deference).

“The possibility of deference can arise only if a regulation is genuinely ambiguous. And when we use that term, we mean it—genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation. Still more, not all reasonable agency constructions of those truly ambiguous rules are entitled to deference. As just explained, we presume that Congress intended for courts to defer to agencies when they interpret their own ambiguous rules.But when the reasons for that presumption do not apply, or countervailing reasons outweigh them, courts should not give deference to an agency’s reading, except to the extent it has the ‘power to persuade.’” “And although the limits of Auer deference are not susceptible to any rigid test, we have noted various circumstances in which such deference is ‘unwarranted.’ In particular, that will be so when a court concludes that an interpretation does not reflect an agency’s authoritative, expertise-based, fair, or considered judgment.”

Recognizing that not all regulations are ambiguous, the Court implored lower courts to “make a conscientious effort to determine, based on indicia like text, structure, history, and purpose, whether the regulation really has more than one reasonable meaning.”

The Court suggested that interpretation of legal terminology may fall outside an agency’s expertise. “When the agency has no comparative expertise in resolving a regulatory ambiguity, Congress presumably would not grant it that authority.”

“And a court may not defer to a new interpretation, whether or not introduced in litigation, that creates 'unfair surprise’ to regulated parties. That disruption of expectations may occur when an agency substitutes one view of a rule for another. We have therefore only rarely given Auer deference to an agency construction conflicting with a prior one.

The full text of Kisor v. Wilkie can be found here:

https://www.supremecourt.gov/opinions/18pdf/18-15_9p6b.pdf

Comment

Comment

SCOTUS Clarifies Generic Definition of Burglary

The Supreme Court has determined that the generic definition of burglary does not require a defendant to have criminal intent at the first moment that he unlawfully remains in a building, but rather, encompasses offenses where a defendant forms that intent at any time that he is unlawfully remaining the building. As such, Michigan’s third-degree home invasion statute is a match to the generic burglary definition.

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

https://www.supremecourt.gov/opinions/18pdf/17-778_7li8.pdf

Comment

Comment

CA Court of Appeals Clarifies Standards for 1473.7 Motion

The California Court of Appeals, Fourth Appellate District, has held that to succeed on a motion to vacate under Penal Code 1473.7, a person need only show by a preponderance of the evidence: 1) he did not ‘meaningfully understand’ or ‘knowingly accept’ the actual or potential adverse immigration consequences of the plea; and 2) had he understood the consequences, it is reasonably probable he would have instead attempted to ‘defend against’ the charges.” “We agree with the Camacho court’s analysis that the focus of the inquiry in a section 1473.7 motion is on the ‘defendant’s own error in . . . not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States.’”

“We also agree with the Camacho court as to the prejudice component of the amended statute. That is, a ‘prejudicial error’ occurs under section 1473.7 when there is a reasonable probability that the person would not have pleaded guilty—and would have risked going to trial (even if only to figuratively throw a ‘Hail Mary’)—had the person known that the guilty plea would result in mandatory and dire immigration consequences.”

“Mejia said that he would have never pleaded guilty had he known and understood ‘that this would harm me in the future.’” “In short, Mejia plainly established his own ‘error’ within the meaning of section 1473.7, subdivision (a).” “As far as the prejudice component, there is contemporaneous evidence in the record to substantiate Mejia’s claim that he would not have pleaded guilty had he known about the mandatory and dire immigration ramifications. Similar to Camacho, there is compelling evidence in the record that at the time of his guilty pleas, Mejia had been living in the United States for eight years, since he was 14 years old. At the time of his guilty pleas, Mejia’s wife and infant son were living in the United States, as well as his mother and six siblings. Indeed, Mejia’s only remaining family tie to Mexico was his father, who passed away just before Mejia entered his guilty pleas. Moreover, as the lower court acknowledged, there are some lingering questions about the strength of the underlying evidence.”

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

http://sos.metnews.com/sos.cgi?0619//G056042

Comment

Comment

CA Court of Appeals Denies 1473.7 Motion; Finds no IAC

The California Court of Appeals, First Appellate District, has determined that a defense counsel is not required under Padilla to state that a mandatory deportability offense will definitively lead to deportation. “Chen was told the single felony had the potential to cause her removal from the United States and she would not be allowed to come back. This clearly imparts a risk of deportation as required under Padilla and provided Chen notice and the ability to more fully explore, if she wished, the immigration impact of her plea. Moreover, we are unwilling to require counsel to state deportation will be certain because it may not be accurate advice, even in cases where an offense qualifies for mandatory deportation under federal law.”

The full text of People v. Chen can be found here:

http://sos.metnews.com/sos.cgi?0719//A152754

Comment

Comment

District Court Disagrees Matter of M-S-

A District Court has disagreed with the Attorney General’s decision in Matter of M-S-, which found all individuals who entered the United States without inspection and subsequently were found to have a credible fear of persecution or torture to be ineligible for bond. The court made the following orders:

1. Conduct bond hearings within seven days of a bond hearing request by a class member, and release any class member whose detention time exceeds that limit;

2. Place the burden of proof on Defendant Department of Homeland Security in those bond hearings to demonstrate why the class member should not be released on bond, parole, or other conditions;

3. Record the bond hearing and produce the recording or verbatim transcript of the hearing upon appeal; and

4. Produce a written decision with particularized determinations of individualized findings at the conclusion of the bond hearing

The order will go into effect on 7/16/19.

The full text of Padilla v. ICE can be found here:

https://www.courthousenews.com/wp-content/uploads/2019/07/bond-asylum.pdf

Comment

Comment

BIA Applies Realistic Probability Test to Drug Conviction

The Board of Immigration Appeals (BIA) has determined that “where an alien has been convicted of violating a state drug statute that includes a controlled substance that is not on the federal controlled substances schedules, he or she must establish a realistic probability that the state would actually apply the language of the statute to prosecute conduct involving that substance in order to avoid the immigration consequences of such a conviction.” In the instant case, the respondent argued that a Florida conviction for possession of marijuana did not render him inadmissible because Florida’s definition of marijuana is broader than the federal definition. “The respondent has also not presented any cases where a defendant was successfully prosecuted under Florida law for an offense that involved only a form of marijuana that was not prohibited by 21 U.S.C. § 802(16).” As such, the BIA found that the respondent had not established a realistic probability that Florida prosecutes marijuana offenses that fall outside the federal definition of marijuana.

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

https://www.justice.gov/eoir/page/file/1171626/download

Comment

Comment

BIA Determines that False Claim to US Citizenship does not Require Knowledge of Falsity of Claim

The Board of Immigration Appeals has determined that a lawful permanent resident is deportable for making a false claim to US citizenship even if he did not know his claim was false. “Significantly, Congress carved out a narrow exception to this provision for those aliens whose parents are or were United States citizens; who permanently resided in the United States prior to the age of 16 years; and who reasonably believed that they were United States citizens when they made such a claim.4 Section 237(a)(3)(D)(ii) of the Act; see also section 212(a)(6)(C)(ii)(II) of the Act. This exception indicates that an alien is not required to know that a claim to citizenship is false, because if Congress had intended to include a knowledge or willfulness requirement in section 237(a)(3)(D)(i), there would be no need for a good faith exception.” “thus, we conclude that under the plain language of that section, it is not necessary to show intent to establish that an alien is deportable for making a false representation of United States citizenship. An alien need only falsely claim to be a United States citizen for any purpose or benefit under the Act or any Federal or State law to be deportable.”

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

https://www.justice.gov/eoir/page/file/1178256/download

Comment

Comment

Ninth Circuit Upholds Removal Order of CNMI Guest Worker

The court has determined that Congress’s two-year reprieve (following the imposition of US immigration law on the CNMI) protected immigrants in the CNMI from removability on the basis that they had not been admitted or paroled into the United States, but did not exempt them from removal based on other grounds of removability set forth in the INA, such as being an applicant for admission who was not in possession of a valid entry document. In addition, because residence in the CNMI prior to the imposition of US immigration laws cannot be used toward the residence requirement for naturalization, it also cannot be used for the continuous physical presence requirement for cancellation of removal for non-lawful permanent residents.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/06/12/13-70653.pdf

Comment

Comment

Ninth Circuit Prohibits ICE from Using Document Warrants as Pretext for Mass Raids

“Immigration and Customs Enforcement (ICE) agents implemented a preconceived plan to ‘target’ over 200 factory workers for detention and for interrogation as to their immigration status. The plan turned on obtaining and executing a search warrant for employment records at the factory. The record before us establishes that the search warrant for documents was executed “in order to” arrest undocumented workers present at the factory. Our central question is whether the ICE agents were permitted to carry out preplanned mass detentions, interrogations, and arrests at the factory, without individualized reasonable suspicion. We hold that they were not.”

“The government does not dispute that Perez Cruz was seized for purposes of the Fourth Amendment when he was detained in his workplace, frisked, and handcuffed, or that the ICE agents did so without individualized reasonable suspicion. Rightly so. The record confirms that the agents detained Perez Cruz and his coworkers at the outset of the raid, blocking all exits and prohibiting them from leaving. That ICE suspected MSE was employing undocumented workers did not provide reasonable suspicion that Perez Cruz himself was undocumented.” “The government maintains that, despite this bedrock principle, Michigan v. Summers permitted the agents to detain Perez Cruz without suspicion on their arrival at the MSE factory to execute the search warrant they had in hand.”

“The authority provided by Summers for detention during the execution of a valid search warrant applies in the absence of probable cause or reasonable suspicion as to the detained individuals’ culpability, and so is analogous to the probable cause exceptions for which valid purpose is a prerequisite.” “Perez Cruz has presented substantial, uncontroverted evidence that the search authorized by the warrant was far from the ICE agents’ central concern. Instead, the agents’ principal goal was to detain, interrogate, and arrest a large number of individuals who worked at the MSE factory, hoping to initiate removal proceedings against them.” “Where ‘a safe and efficient search’ is not the primary purpose of the officers’ actions, Summers’s justification for bypassing the Fourth Amendment’s traditional protections disappears, just as the justifications for doing so disappear—and so bypass of the usual Fourth Amendment requisites becomes impermissible—in inventory and administrative search cases.”

The court concluded that Perez Cruz was entitled to suppression of his statements about alienage and the related documents obtained by ICE demonstrating his foreign birth.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/06/13/15-70530.pdf

Comment

Comment

Ninth Circuit finds that CA Indecent Exposure Conviction is a CIMT

The Ninth Circuit has deferred to the Board of Immigration Appeals’ (BIA) determination in Matter of Cortes Medina that a California conviction for indecent exposure is a crime involving moral turpitude (CIMT), overturning its prior precedent in Nunez v. Holder. Thus, the defining characteristic of a CIMT in the indecent exposure context is whether the offense conduct includes “lewd intent.” In assessing the retroactive application of the new definition of an indecent exposure CIMT, the court noted that Cortes Medina was a drastic departure from the published precedent in Nunez. “Nunez was well-settled policy in this Circuit from February 10, 2010, the date on which Nunez was decided, until January 8, 2013, the date on which Cortes Medina was decided.” However, the court found that the petitioner could not have relied on Nunez when he pleaded guilty in 2002 because Nunez had not yet been decided. The petitioner not assert that he paid fees during his immigration proceedings in reliance on Nunez,. nor did he assert that he made strategic decisions or chose not to apply for other forms of relief because he relied on the availability of cancellation of removal under Nunez. Though the court applied the Cortes Medina definition retroactively to the petitioner, it clearly left open the possibility that someone else could demonstrate sufficient reliance on Nunez to prohibit the retractive application of Cortes Medina.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/05/15-72347.pdf

Comment

Comment

Eighth Circuit finds that Arkansas First Degree Terrorist Threatening Conviction is Violent Felony

The Eighth Circuit has determined that an Arkansas conviction for first degree terrorist threatening is divisible between threats of injury and threats to property. Applying the modified categorical approach, the court determined that a conviction for threats of serious injury is a violent felony.

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

https://ecf.ca8.uscourts.gov/opndir/19/07/172415P.pdf

Comment

Comment

Eighth Circuit Reaffirms that Minnesota Simple Robbery is a Violent Felony

The Eighth Circuit has reaffirmed, in light of recent Supreme Court precedent, that a Minnesota conviction for simple robbery is a violent felony under the Armed Career Criminal Act (ACCA). Given the similar definition of a violent felony under the ACCA and a crime of violence in the immigration context, this decision could have persuasive value in the immigration context.

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

https://ecf.ca8.uscourts.gov/opndir/19/06/171760P.pdf

Comment

Comment

Seventh Circuit Remands CAT Claim for Second Time

The Seventh Circuit has again remanded a request for protection under the Convention Against Torture filed by a former MS-13 gang member. The court identified a number of places in which the court cherrypicked evidence, failing to acknowledge the documents that corroborated the petitioner’s testimony. In addition, the court admonished the agency for discrediting written statements made by the applicant’s relatives, who the Immigration Judge identified as “interested parties.” While the court acknowledged that an applicant’s family members would be interested in the outcome of a case, they would also be the people most likely to have information relevant to the applicant’s claim.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D07-03/C:17-2969:J:Rovner:aut:T:fnOp:N:2364883:S:0

Comment

Comment

Seventh Circuit finds that IL Unlawful Possession of a Controlled Substance Statute is not Divisible

The Seventh Circuit has determined that a conviction under an Illinois statute criminalizing unlawful possession of a controlled substance is not a deportable offense. Both parties agreed that the statute criminalized possession of substances not listed in the Controlled Substances Act. The court found the statute at issue to be indivisible.

“Under the language of § 402(c) and its place in the larger Illinois act, any ‘controlled substance’ will do, subject to the explicit exceptions for methamphetamine, counterfeit substances, and anabolic steroids. The text and structure do not show that the identity of the controlled substance is an element under § 402(c).” The court also noted that while the charging document in the petitioner’s criminal case specified the identity of the substance, the sentencing document did not.

The full text of Najera-Rodriguez v. Barr can be found here:

ssExec.pl?Submit=Display&Path=Y2019/D06-04/C:18-2416:J:Hamilton:aut:T:fnOp:N:2350297:S:0

Comment

Comment

Fourth Circuit Remands Asylum Claim for Single Mother from Honduras

The Fourth Circuit has remanded a petition for review filed by a female asylum seeker who argued that she was targeted for persecution by the gangs in Honduras based on her status as a single mother. The court found that the gendered statements made by the gang members, as well as the threats made against the petitioner’s daughter, were sufficient to demonstrate that petitioner’s status as an unmarried mother was at least one central reason for the harm she suffered.

With respect to the petitioner’s proposed social group, the court did not decide whether the group was cognizable, but made several observations about the legal conclusions of the Immigration Judge. The court rejected the Immigration Judge’s conclusion that the proposed group was too large to be cognizable for asylum purposes.

Additionally, the petitioner asserted that she was persecuted on account of her imputed anti-gang political opinion. “When, as here, an applicant claims that she has been or will be persecuted on account of an imputed political belief, then the relevant inquiry is not the political views sincerely held or expressed by the victim, but rather the persecutor’s subjective perception of the victim’s views.” The court chided the Immigration Judge for focusing on whether the applicant was politically motivated when she refused the gang’s demands, but remanded for the agency to consider if the gang perceived her refusal as a political statement.

Finally, the court remanded for further analysis of the petitioner’s Convention Against Torture claim. A gang member threatened to rape, mutilate, and murder both the petitioner and her daughter if she did not pay him. The petitioner also testified that Barrio 18 members have continued to ask her family about her whereabouts since she fled. “That testimony alone could be sufficient to sustain her burden as to future mistreatment.” The fact that the testimony was corroborated by expert testimony only strengthened her claim.

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

http://www.ca4.uscourts.gov/Opinions/172291.P.pdf

Comment

Comment

Second Circuit finds NY Conviction for Child Endangerment is a Crime of Child Abuse

The Second Circuit has determined that a New York child endangerment conviction is a deportable child abuse offense. In so doing, the court reaffirmed its decision to defer to the Board of Immigration Appeals’ definition of a crime of child abuse, which does not require actual harm to a child. The New York statute at issue criminalizes knowingly acting in a manner likely to be injurious to the physical, mental, or moral welfare of a child less than seventeen years old. he New York Court of Appeals has interpreted the as requiring both that the defendant acted with an awareness of the potential for harm and that the harm was likely to occur, and not merely possible.

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

http://www.ca2.uscourts.gov/decisions/isysquery/02221bb5-9a17-4413-a7e2-97aecf140138/11/doc/16-3145_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/02221bb5-9a17-4413-a7e2-97aecf140138/11/hilite/

Comment

Comment

Second Circuit Affirms that Asylum Applicant can Pursue Multiple Theories of Asylum Even if Changed Circumstances Apply to Only One Ground

The Second Circuit has held that an asylum applicant may “raise multiple claims in her asylum application, even if the changed circumstance relates only to one proffered basis for asylum.” The petitioner filed for asylum based on having undergone a forced abortion and also on the basis of a religious conversion. She submitted her application over a decade after her arrival to the United States, but within one month of her conversion to Christianity. The Immigration Judge (IJ) found that the petitioner was credible on all counts, but that there was insufficient evidence of persecution of Christians in China to grant the asylum application on that basis. The IJ did not consider the petitioner’s asylum claim based on her forced abortion because the IJ determined that the claim was not timely filed, but the IJ found Yang’s story credible and granted her withholding of removal on the basis of that claim.

“In our first look at the plain language of the statute, we observe that the relevant section clearly states that ‘an application for asylum of an alien may be considered . . . if the alien demonstrates . . . changed circumstances which materially affect the applicant’s eligibility for asylum.’ The plain language of the statute thus makes clear that changed circumstances provide for the consideration of an application for asylum, as opposed to a specific claim for asylum.”

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

http://www.ca2.uscourts.gov/decisions/isysquery/02221bb5-9a17-4413-a7e2-97aecf140138/5/doc/16-3478_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/02221bb5-9a17-4413-a7e2-97aecf140138/5/hilite/

Comment