Seventh Circuit Expounds on the Standard of Proof in CAT Proceedings

The Seventh Circuit has once again clarified the standard of proof for protection under the Convention Against Torture.  It again that it had previously held that standard does not call for a literal calculation of a greater than 50% chance of harm, but rather, a qualitative assessment that here is a substantial risk of harm to the petitioner.  "Does the risk exceed 50%? What if there is a 20% risk of death and a 40% risk of bodily injury? Is that 'more likely than not' when neither risk exceeds 50%? Does a 20% risk of death exceed a 60% risk of losing a limb? Similar questions are easy to spin out. The panel in Rodriguez-Molinero stated that a statistical requirement cannot be taken seriously and that the best an agency or court can do is look for substantial risk. 'More likely than not' is the standard burden in civil litigation and does not impose a statistical or quantitative requirement in a tort or contract suit any more than in a removal proceeding. Our opinion in Rodriguez-Molinero did not suggest that 'substantial risk' means something more than the 'more likely than not' standard. It was designed, rather, as a non-quantitative restatement of that standard. If there is any gap between the two, it is in the direction of lenience to aliens, potentially treating (say) a moderate risk of death as equivalent to a much greater risk of being beaten up, and treating either as enough to allow the agency to permit an alien to stay in this nation."

The full text of Perez-Montes v. Sessions can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D01-24/C:17-2520:J:Easterbrook:aut:T:fnOp:N:2096387:S:0

Seventh Circuit Finds that Indiana Conviction for Attempted Sexual Misconduct with a Minor is an Aggravated Felony

The Seventh Circuit has affirmed a determination by the Department of Homeland Security that an Indiana conviction for attempted sexual misconduct with a minor is a sexual abuse of a minor aggravated felony.   The Court noted that sexual intercourse between a child under sixteen years of age and an eighteen-year-old adult involves a inherent risk of exploitation, if not coercion.  

The full text of Correa-Diaz v. Sessions can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D01-31/C:16-3198:J:Flaum:aut:T:fnOp:N:2100357:S:0

DHS Extends TPS for Syria

The Secretary of Homeland Security has extended the Temporary Protected Status designation for Syria for another 18 months, or through September 30, 2019.

The official announcement can be read here:

https://www.dhs.gov/news/2018/01/31/secretary-homeland-security-kirstjen-m-nielsen-announcement-temporary-protected

Eleventh Circuit finds that Florida Child Abuse Conviction is Deportable Offense

The Eleventh Circuit has determined that a Florida child abuse conviction, which criminalizes the battery of a child by throwing, tossing, projecting, or expelling blood, seminal fluid, urine, or feces, is both a crime of child abuse and crime involving moral turpitude.  With respect to the crime of child abuse, the Court noted that a child who has had blood or urine thrown at her by an adult is at substantial risk of mental or emotional harm, in addition to the possibility of physical injury through exposure to fluid-borne or fecal pathogens.  With respect to the crime involving moral turpitude, the Court found that the acts criminalized under the statute were base and vile.  

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

http://media.ca11.uscourts.gov/opinions/pub/files/201615898.pdf

Ninth Circuit Finds that Washington Conspiracy Conviction is not a Controlled Substance Violation

The court held that the definition of conspiracy within the Washington Criminal Code allows for a conviction when the other party to the conspiracy is a law enforcement officer or other government agent who did not intend that a crime be committed – applies to a conviction for conspiracy to distribute methamphetamine.  Thus, the statute criminalizes conduct not criminalized by the federal conspiracy statute, and as such, is overbroad as compared to generic definition of a controlled substance offense.  

The decision in US v. Brown can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/16/16-30218.pdf

Ninth Circuit Finds that CA Carjacking Conviction is not Crime of Violence

The Ninth Circuit has determined that a California carjacking conviction is not a crime of violence because it does not require the use of violent force.  The Court overruled its prior decision in Nieves-Medrano v. Holder that had held a carjacking conviction is a crime of violence.  The case was remanded to allow the Board of Immigration Appeals to decide in the first instance if the conviction qualified as a theft offense aggravated felony.

The full text of Solorio-Ruiz v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/29/16-73085.pdf

Ninth Circuit finds that Federal Bank Robbery Conviction is a Crime of Violence

The Ninth Circuit has determined that the federal bank robbery statute, which requires the use force, violence, and intimidation, is a crime of violence under federal sentencing guidelines.  With respect to the possible use of intimidation, the Court noted that intimidation requires that the defendant take property in such a way that would put an ordinary, reasonable person in fear of bodily harm and that a defendant cannot put a reasonable person in fear of bodily harm without threatening to use force capable of causing physical pain or injury.

Given the similarity between the definition of a crime of violence under the sentencing guidelines and in the immigration context, this case could have persuasive impact in immigration proceedings.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/02/01/16-15357.pdf

Ninth Circuit Finds that Alabama First Degree Robbery Conviction is not Violent Felony under ACCA

The Ninth Circuit has determined that an Alabama conviction for first-degree robbery is not a violent felony under the Armed Career Criminal Act because the statute only requires a minimal use of force.  Given the similarity between the definition of a violent felony and a crime of violence in the immigration context, this decision could have persuasive value in immigration proceedings.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/02/01/15-50358.pdf

Ninth Circuit Interprets Child Status Protection Act

The Ninth Circuit has determined that a beneficiary of a second-preference family-based petition (child of a lawful permanent resident) whose age is calculated to be under the age of 21 by the Child Status Protection Act on the date of his father's naturalization remains under age 21 for visa purposes, and thus, becomes eligible for adjustment of status as an immediate relative.  "We conclude that anyone who under the relevant statutes is considered a minor child of an LPR on the date of the parent’s naturalization (and who is the beneficiary of a valid petition for an immigrant visa based on that status) can obtain a visa as the minor child of a citizen following his parent’s naturalization."

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/02/14/14-73376.pdf

Ninth Circuit Finds Jurisdiction to Review Denial of Motion for Administrative Closure

The Ninth Circuit has determined that it has jurisdiction to review the denial of a motion to administratively close removal proceedings because the Board of Immigration Appeals' decision in Matter of Avetisyan provides a meaningful standard for review of the agency's decision.

The full text of Gonzalez-Caraveo v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/02/14/14-72472.pdf

Eighth Circuit finds that MO Second Degree Assault is a Crime of Violence

The Eighth Circuit has concluded that a conviction for second-degree assault in Missouri, which forbids recklessly causing physical injury to another person by means of discharge of a firearm, is a crime of violence under the federal sentencing guidelines.  The Court concluded that reckless conduct causing injury to another by use of a firearm constitutes a use of force under the guidelines.  Given the similarity between the definition of a crime of violence under the guidelines and in the immigration context, this decision could have persuasive impact in immigration proceedings.

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

http://media.ca8.uscourts.gov/opndir/18/01/164328P.pdf

Eighth Circuit finds that MN Robbery Conviction is a Violent Felony

The Eight Circuit has determined that a Minnesota robbery conviction is a violent felony under the force clause of the Armed Career Criminal Act.

"Minn. Stat. § 609.24 minimally requires that a defendant 'threaten[] the imminent use of force' in order to either 'compel acquiescence' or 'to overcome the person’s resistance or powers of resistance . . . . While a threat on its own may not present the requisite degree of force, a statute that contains as an element a threat of violent force will. Minnesota’s express requirement that a defendant communicate a threat to 'overcome . . . resistance' or to 'compel acquiescence' necessarily implicates such violent force."

Given the similarity between the force clause and a crime of violence in the immigration context, this case could have persuasive force in immigration proceedings.

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

http://media.ca8.uscourts.gov/opndir/18/01/171023P.pdf

Eighth Circuit finds that OK Voluntary Manslaughter Conviction is a Violent Felony

The Eighth Circuit has determined that an Oklahoma conviction for voluntary manslaughter qualifies as a violent felony under the residual clause of the federal sentencing guidelines.  Given the similarity between the residual clause and the definition of a crime of violence in 8 USC 16(b), this case could have persuasive impact on immigration proceedings in circuits that have not struck down 8 USC 16(b) as unconstitutionally vague.

The full text of US v. Steward can be found here:
http://media.ca8.uscourts.gov/opndir/18/01/163886P.pdf  

Sixth Circuit Permits Reopening of Family-Based Asylum Claim

The Sixth Circuit has overturned the denial of a motion to reopen premised on a family-based asylum claim.  

"But the only way that the BIA could have deemed that connection 'unclear' is if it had discredited Trujillo Diaz’s father’s declaration. His declaration explicitly links his kidnapping (and the threats of harm to Trujillo Diaz) to his and his daughter’s familial ties to his son, who refused to join the cartel. In his declaration, he described the Knights Templar members’ statements that revealed the correlation between his kidnapping and his son’s refusal to join the La Familia cartel: (1) they wanted to find Omar Daniel because they were angry that he had refused to join the cartel and fled to the United States; (2) they knew Trujillo Diaz’s father was the father of Omar Daniel and Trujillo Diaz; and (3) they would hurt the rest of his family if they 'could not get their hands on Omar Daniel and Maribel.' Trujillo Diaz’s father did not speculate or draw conclusions as to the Knights Templar’s motivation; he relayed precisely what they told him. Thus, the BIA discredited Trujillo Diaz’s evidence of familial motivation. And because it dismissed this motivation, it determined that Trujillo Diaz’s fear was not of being targeted because she was part of a particular social group, but rather just a general fear of crime. The BIA provided no other rationale for rejecting Trujillo Diaz’s prima facie case of eligibility for asylum and withholding of removal under the INA."

The full text of Trujillo Diaz v. Sessions:

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0012p-06.pdf

Fifth Circuit Rejects Lack of Notice MTR

The Fifth Circuit has rejected a petitioner's claim that she received legally insufficient notice of her court hearing.  The envelope bearing the notice of hearing was returned to the Court with a notation that the petitioner did not live at that address.  The Court rejected the argument that delivery of a notice of hearing is improper unless signed by the alien or a responsible person at the alien’s address.  "There is no requirement in our caselaw that an alien (or a responsible member of the alien’s household) actually view or sign a notice of hearing delivered to the address provided by the alien." 

The full text of Garcia Nunez v. Sessions:

http://www.ca5.uscourts.gov/opinions/pub/16/16-60140-CV0.pdf

The Fifth Circuit Rejects a Derivative Citizenship Claim Based on Legitimation under Mexican Law

The Fifth Circuit has rejected a derivative citizenship claim.

The statute governing the petitioner's claim to derivative citizenship is the version of the INA in place at the time of his birth.  The INA dictates that a child born out of wedlock to a non-citizen mother and a citizen father can establish derivative citizenship “if the paternity of such child is established while such child is under the age of twenty-one years by legitimation.” The INA also dictates that his claim to legitimation is governed by the laws of Tamaulipas, Mexico—where he resided as a child. Even if he can prove his legitimation under Tamaulipan law, the INA imposes an additional hurdle for claiming derivative citizenship: legitimation must have occurred before Gonzalez–Segura turned twenty-one years old. 

The Board of Immigration Appeals defines “legitimation” as “the act of putting a child born out of wedlock in the same legal position as a child born in wedlock.” Legitimation requires a formal act. A child may be legitimated under the laws of either the child’s or the father’s domicile—whether in the United States or elsewhere.

The 1961 Civil Code of Tamaulipas (“CCT”) establishes how a father can legitimate a child who was born out of wedlock.  CCT Article 370 provides that a child may be legitimated by either (1) the father’s voluntary acknowledgment or (2) a court judgment declaring paternity. CCT Article 379 provides five ways that voluntary acknowledgement of a child born out of wedlock can occur: 1) In the birth certificate before the Civil Registry official; 2) By special acknowledgement proceeding before the same official; 3) By a notarial instrument; 4) By a will; and 5) By direct and express judicial confession.

The petitioner argued that he satisfied the CCT legitimation requirements in three ways. First, his amended birth certificate qualifies as a voluntary acknowledgment of his paternal lineage. Second, the 2007 ruling by the Tamaulipas court that ordered the rectification of his original birth certificate qualifies as a court judgment declaring paternity. Third, his father’s 1970 holographic will qualifies as a voluntary acknowledgement of paternity.

Only the amended birth certificate and the 2007 judicial decree are valid forms of legitimation under Tamaulipan law. The Court held that the petitioner cannot rely on these otherwise valid forms of legitimation for his claim to derivative citizenship because the legitimation occurred after he had turned twenty-one years old.

The full text of Gonzalez-Segura v. Sessions can be found here:

http://www.ca5.uscourts.gov/opinions/pub/16/16-41413-CV0.pdf

Fifth Circuit Construes Reinstatement Provision

The Fifth Circuit has rejected an argument that the reinstatement provision does not bar reopening of a removal order if the motion to reopen is filed before notice of the reinstatement is served on the petitioner.

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

http://www.ca5.uscourts.gov/opinions/pub/16/16-60179-CV0.pdf

Fifth Circuit Addresses Breadth of Oklahoma Drug Statutes

The Fifth Circuit has addressed whether Oklahoma drug convictions are categorically controlled substance offenses.  The breadth of the Oklahoma schedules facially extends beyond those substances that are controlled under federal law. Specifically, the Oklahoma schedules contain at least two substances (Salvia Divinorum and Salvinorin A) that are not included in any federal schedule.  The court declined to assess whether the Oklahoma statute is divisible, or whether the modified categorical approach applies.  However, the court rejected the petitioner's argument because he provided no case law to show that Oklahoma actually prosecutes offenses involving Salvia Divinorum and Salvinorin A, and thus, had not established a realistic probability that the petitioner's conviction involved substances not included in the Controlled Substances Act.

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

http://www.ca5.uscourts.gov/opinions/pub/16/16-60211-CV0.pdf

Fifth Circuit Addresses the Role of PTSD in Credibility Determinations

The Fifth Circuit has determined that an Immigration Judge need not consider a petitioner's post-traumatic stress disorder when evaluating credibility, unless the petitioner has been deemed incompetent or have a mental illness or serious cognitive disability that affects their ability to provide testimony in a coherent, linear manner. 

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

http://www.ca5.uscourts.gov/opinions/pub/16/16-60059-CV0.pdf

Fourth Circuit Finds Applicant Established Persecution on of Family Ties

The Fourth Circuit has reaffirmed its family-based asylum case law.

"For three reasons, we are compelled to conclude that the IJ and the Board erred in finding that Salgado-Sosa has not shown that his kinship ties are at least one central reason for the harm he fears. First, the record manifestly establishes that MS-13 threatened Salgado-Sosa on account of his connection to his stepfather and to his family. Salgado-Sosa testified, for instance, that MS-13 attacked him because of his stepfather Merez-Merlo’s conflict with the gang, not his own. Merez-Merlo similarly testified that his refusal to give MS-13 what they wanted, which was the war tax, led the gang to repeatedly threaten to kill his wife and son. Other evidence also corroborates the centrality of family ties. For example, the family’s long-time neighbor submitted an affidavit averring that the reason why the gang members want to hurt Salgado-Sosa is that he defended his stepfather from the gang members when they assaulted the family."

"Second, that Salgado-Sosa’s anticipated harm is on account of membership in his family follows from the IJ’s own factual findings, adopted by the BIA. The IJ herself determined that the central reasons for Salgado-Sosa’s feared persecution are his stepfather’s refusal to pay the gang and revenge on the family for resisting MS-13’s extortion."  "There is no meaningful distinction between whether Salgado-Sosa was threatened because of his connection to his stepfather, and whether Salgado-Sosa was threatened because MS-13 sought revenge on him for an act committed by his stepfather."

"Third and finally, the BIA’s decision improperly focused on whether Salgado-Sosa’s family was persecuted on account of a protected ground, rather than on whether Salgado-Sosa was persecuted because of a protected ground – here, his relationship to his family. The critical fact, for the BIA, was that the motive for the attacks on Salgado- Sosa’s family was financial gain or personal vendettas, neither of which is itself a protected ground under the INA.  But as we have explained before, it does not follow that if Salgado-Sosa’s family members were not targeted based on some protected ground, then Salgado-Sosa could not have been targeted based on his ties to his family."

The full text of Salgado-Sosa v. Sessions can be found here: 

http://www.ca4.uscourts.gov/Opinions/161594.P.pdf