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Ninth Circuit Defers to BIA Interpretation of Single Scheme of Criminal Conduct

The Ninth Circuit has deferred to the Board of Immigration Appeals’ decision in Matter of Islam, construing the exception to deportability for two crimes involving moral turpitude arising out of the same scheme of conduct. The Ninth Circuit also found that retroactive application of this standard to the petitioner is permissible because at the time of the petitioner’s plea, the Board had not yet stated that it would apply contrary circuit case law.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/02/13/15-73514.pdf

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Ninth Circuit Affirms that WA Conviction for Communication with Minor for Immoral Purposes is CIMT

The Ninth Circuit has reaffirmed that a Washington conviction for communication with a minor for immoral purposes is a crime involving moral turpitude, citing its prior decision in Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007) as binding precedent on the issue. The court also determined that it is bound by its own precedent to reject the argument that the phrase “crime involving moral turpitude” is unconstitutionally vague.

Judge Fletcher wrote a lengthy concurrence on why, absent the precedent relied on, the court should find that term is unconstitutionally vague.

The full text of Islas-Veloz v. Whitaker can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/02/04/15-73120.pdf

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Ninth Circuit Finds that WA 2nd Degree Murder is not Crime of Violence

The Ninth Circuit has determined that a Washington conviction for second-degree murder is not a crime of violence because Washington law imposes liability for negligent or even accidental felony murder. Thus, the statute is overbroad with respect to the generic definition of a crime of violence, which requires the intentional use of force. The court also determined that the statute is indivisible, and thus, the modified categorical approach cannot be used.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/02/01/17-30096.pdf

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Ninth Circuit finds that NTA Lacking Time and Place still Establishes Jurisdiction

The Ninth Circuit has deferred to the Board of Immigration Appeals’ decision in Matter of Bermudez Cota and determined that the filing of a Notice to Appear that lacks the time and location of the first hearing still vests jurisdiction in the Immigration Court over the removal proceeding, so long as a subsequent hearing notice is served on the individual. In so doing, the court confined the Supreme Court’s decision in Periera v. Sessions to the cancellation of removal context only.

The court declined to determine whether jurisdiction would have vested if the individual had not received information about the time and place of her hearing in a timely fashion.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/01/28/16-70885.pdf

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Eighth Circuit Finds that IL Aggravated Vehicular Hijacking is Crime of Violence

The Eighth Circuit has determined that an Illinois conviction for aggravated vehicular hijacking is a crime of violence under the federal sentencing guidelines because the statute requires the defendant to use force sufficient to overcome the victim’s resistance.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D01-29/C:17-1689:J:Barrett:aut:T:fnOp:N:2285371:S:0

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Seventh Circuit Remands for Further Analysis of Criminal Inadmissibility

The Seventh Circuit has remanded for the Board of Immigration Appeals to further analyze the inadmissibility provision in section 212(a)(2)(B) of the INA. The petitioner had been convicted of a DUI offense, for which he received no sentence of incarceration. Subsequently, he was convicted of negligent vehicular homicide, for which he was sentenced to 5 years of incarceration. The petitioner argued that section 212(a)(2)(B) of the INA, which renders inadmissible anyone convicted of “2 or more offenses … for which the aggregate sentences to confinement were 5 years or more,” requires at least two sentences of confinement.

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


http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D01-29/C:17-1689:J:Barrett:aut:T:fnOp:N:2285371:S:0

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Fifth Circuit Applies Circumstance Specific Approach to Marijuana Deportability

The Fifth Circuit has deferred to the Board of Immigration Appeals’ determination that the personal use of marijuana exception to controlled substance deportability is subject to the circumstance specific analysis. Specifically, if the statute of conviction does not specify that the conviction involved less than 30 grams of marijuana, the adjudicator may consult other documents, such as the arrest report, to determine how much marijuana was involved in the offense.

The full text of Cardoso de Flores v. Whitaker can be found here:

http://www.ca5.uscourts.gov/opinions/pub/17/17-60744-CV0.pdf

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Fifth Circuit Revisits Jurisdiction over MTR

The Fifth Circuit has revisited whether it has jurisdiction to review the denial of a motion to reopen baed on lack of notice when the Department of Homeland Security has reinstated that order. The court concluded that it does have jurisdiction to review, and that the petitioner need not show a gross miscarriage of justice to trigger that jurisdiction.

The court withdrew its previous opinion in this matter and replaced it with the current opinion. The full text of the new opinion in Mejia v. Whitaker can be found here:


http://www.ca5.uscourts.gov/opinions/pub/16/16-60179-CV1.pdf

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Tenth Circuit finds that CO Drug Statute is Overbroad and Indivisible with Respect to Definition of Drug Trafficking Aggravated Felony

The Tenth Circuit has determined that a Colorado statute that makes it unlawful “to manufacture, dispense, sell, distribute, possess, or to possess with intent to manufacture, dispense, sell, or distribute a controlled substance” is overbroad compared to the definition of an aggravated felony because it includes fraudulent offers to sell a controlled substance. The court then determined that the statute is indivisible between fraudulent and genuine offers to sell controlled substances.

The full text of United States v. Almanza-Vigil can be found here:

https://www.ca10.uscourts.gov/opinions/17/17-2007.pdf

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Supreme Court finds that FL Robbery Statute is Violent under ACCA

The Supreme Court has determined that Florida’s robbery statute qualifies as a violent felony under the Armed Career Criminal Act (ACCA). The Court determined that violent felonies encompass “robbery offenses that require the criminal to overcome the victim’s resistance.”

The force necessary to overcome a victim’s physical resistance is inherently violent and suggests “a degree of power that would not be satisfied by the merest touching.” “This is true because robbery that must overpower a victim’s will—even a feeble or weak-willed victim—necessarily involves a physical confrontation and struggle. The altercation need not cause pain or injury or even be prolonged; it is the physical contest between the criminal and the victim that is itself ‘capable of causing physical pain or injury.”

Given the similarity between the definition of the definition of a crime of violence in the immigration context and a violent felony under the ACCA, this decision could have persuasive impact in the immigration context.

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

https://www.supremecourt.gov/opinions/18pdf/17-5554_4gdj.pdf

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Ninth Circuit Affirms that CA Robbery Conviction is a Theft Offense

The Ninth Circuit has determined that a California conviction qualifies as a theft offense aggravated felony. Generic theft requires (1) the taking of (2) property (3) without consent (4) with the intent to deprive the owner of rights and benefits of ownership. The defendants argued that one can be convicted of CPC § 211 robbery as an accessory after the fact, for example, by being a getaway driver. The court rejected this, finding that accessory after the fact to a felony is separately criminalized in section 32 of the Penal Code.

The defendants also argued that because California courts have upheld convictions under § 211 of defendants who engaged only in asportation (taking) of property that had previously been forcibly taken from its owner, § 211 robbery is not generic theft. The court determined that to be convicted of CPC § 211 robbery under any theory, a defendant must form the intent to facilitate or encourage the commission of the robbery before or during the carrying away of the loot. Furthermore, anyone found guilty of CPC § 211 robbery must have engaged in the exercise of control over property without consent with the criminal intent to deprive the owner of the rights and benefits of ownership. Thus, the statute meets the generic definition of a theft offense.

The full text of United States v. Martinez-Hernandez can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/01/09/16-50423.pdf

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Ninth Circuit Finds no De Minimis Exception to Material Support Bar

The Ninth Circuit has determined that there is no de minimis exception to the material support to terrorism bar. In so doing, the court found that statute was unambiguous, but held that even if it were, it would defer to the Board of Immigration Appeals’ decision in Matter of A-C-M-. The panel held that because petitioner admitted that he gave about $50 to someone whom he knew was a member of the Maoists, a designated terrorist organization at that time, substantial evidence supported the Board’s determination that he gave material support to a terrorist organization, rendering him ineligible for asylum and withholding of removal.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/01/15/16-70534.pdf

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Ninth Circuit Withdraws Opinion in Lorenzo v. Sessions

The Ninth Circuit has withdrawn its opinion in Lorenzo v. Sessions, which held that California’s definition of methamphetamine is broader than the federal decision. The court denied the government’s petition for rehearing, but replaced its decision with an unpublished decision, allowing the government to raise its arguments in future cases.

The order withdrawing the published decision can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/01/17/15-70814.pdf

The unpublished decision can be found here:

https://cdn.ca9.uscourts.gov/datastore/memoranda/2019/01/17/15-70814.pdf

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Ninth Circuit Construes Internal Relocation Regulations

The Ninth Circuit has determined that the regulations governing internal relocation do not require the government to propose a city, state, or other type of locality as the area of relocation, rather the Department of Homeland Security may properly propose a specific or a more general area as the place of safe relocation. The Board must then conduct its safe relocation analysis with respect to that proposed area, however specifically or generally defined. “Commensurate with DHS’s burden, a more generally defined area will likely require a more comprehensive showing of proof that the entirety of the area is safe for relocation, as compared to, for example, a specific city.”

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/01/24/16-70823.pdf

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Seventh Circuit Grants Petition for Review of Sua Sponte MTR Denial

The Seventh Circuit has reaffirmed that it has jurisdiction to review legal errors committed by the Board of Immigration Appeals during the adjudication of a sua sponte motion to reopen. Fuller’s application for protection under the Convention Against Torture was denied on credibility grounds. He subsequently filed a motion to reopen with corroborating letters, in an attempt to overcome the adverse credibility determination. “The Board said in its order that Fuller was not challenging its prior conclusions regarding his credibility or his eligibility for deferral of removal; but that declaration cannot be reconciled with either the letter or the spirit of Fuller’s request for relief.”

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


http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D01-23/C:17-3176:J:Rovner:aut:T:fnOp:N:2282486:S:0

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Seventh Circuit finds that Wisconsin Battery Involving Domestic Abuse Conviction is Crime of Domestic Violence

The Seventh Circuit has reaffirmed that a Wisconsin conviction for battery involving domestic abuse is a crime of domestic violence because it involves the use of violent force.

The full text of Beltran-Aguilar v. Whitaker can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D01-02/C:18-1799:J:Barrett:aut:T:fnOp:N:2271755:S:0

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