These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
The Sixth Circuit has determined that an inconclusive record of conviction does not meet a petitioner's burden of establishing eligibility for relief. This decision creates a circuit split with the First Circuit, but aligns with a decision from the Fifth Circuit. The issue is currently being heard en banc by the Ninth Circuit.
The full text of Gutierrez v. Sessions can be found here:
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0073p-06.pdf
The Eighth Circuit has determined that a conviction for burglary in North Dakota (which includes burglary of both vehicles and structures) is overbroad and indivisible with respect to the generic definition of burglary. As such, it does not qualify as a violent felony under the Armed Career Criminal Act (ACCA). Given the similar definitions of generic burglary under the ACCA and a burglary aggravated felony, this case could have persuasive value in the immigration context.
The full text of US v. Kinney can be found here:
The Board of Immigration Appeals (Board) has determined that a conviction for stalking in California is not a crime of stalking, overruling its prior decision in the same case. The Board determined that there is a realistic probability that California would apply section 646.9 to conduct committed with the intent to cause and which causes a victim to fear safety in a non-physical sense. Because the Legislature explicitly replaced the specific reference to death or great bodily injury with the broader term safety, stalking offenses committed with the intention of causing a victim to fear nonphysical injury, either personally or to his or her family, may be prosecuted in California. Such offenses fall outside the scope of the definition of a crime of stalking. The Board further determined that the statute is indivisible, and as such, the modified categorical approach cannot be employed.
The full text of Matter of Sanchez-Lopez can be found here:
The Board of Immigration Appeals (Board) has reaffirmed its decision in Matter of Pickering, which holds that a conviction vacated because of a substantive defect in the underlying proceedings is no longer a valid conviction for immigration purposes. In so doing, the Board refused to follow the Fifth Circuit's decision in Renteria-Gonzalez v. INS, which held that a vacated conviction remains valid for immigration purposes no matter what the reason was for the vacatur.
The full text of Matter of Marquez Conde can be found here:
The Board of Immigration Appeals (Board) has determined that a California conviction for attempted voluntary manslaughter is a crime of violence aggravated felony, even though the completed offense of voluntary manslaughter is not. The Board noted that California courts have held that attempted voluntary manslaughter cannot be premised on the theory that a defendant acted with conscious disregard for life, because it would be based on the internally contradictory premise that one can intend to commit a reckless killing. Instead, a person who commits attempted voluntary manslaughter must act with the specific intent to kill another person. The specific intent to kill, in turn, necessarily involves the volitional use of force. Thus, the attempt crime does not suffer form the same overbreadth with respect to mens rea as the completed offense, which can entail reckless conduct.
The full text of Matter of Cervantes Nunez can be found here:
The Board of Immigration Appeals has determined that when analyzing whether the conduct criminalized by a state statute would be punishable as a felony under federal law, the adjudicator is not limited to examining the federal law that is most closely analogous to the state statute at issue. In the instant matter, Rosa was convicted of selling a controlled substance within 1000 feet of a school in New Jersey in violation of N.J. Stat. Ann. § 2C:35-7. The New Jersey statute criminalized dispensing or distributing drugs, while the federal statute (21 U.S.C. § 860(a)) criminalizing drug activities near a school did not include dispensing drugs. However, all of the conduct criminalized by the New Jersey statute was included in a different federal statute (21 U.S.C. § 841(a)) which criminalized distributing or dispensing a controlled substance, without reference to the location of a school. Thus, the New Jersey conviction qualifies as a drug trafficking aggravated felony.
The full text of Matter of Rosa can be found here:
The Third Circuit has determined that a Pennsylvania conviction for possession of child pornography is categorically a crime involving moral turpitude, even considering that an 18-year-old could be prosecuted for sexting with a 17-year-old. The court also rejected the petitioner's argument that the term "crime involving moral turpitude" was void for vagueness.
The full text of Moreno v. Attorney General can be found here:
The Attorney General referred the decisions of the Board of Immigration Appeals to himself for review of issues relating to when there is “good cause” to grant a continuance for a collateral matter to be adjudicated, ordering that the cases be stayed during the pendency of his review.
The text of the referral order in Matter of L-A-B-R- can be found here:
At issue in this appeal was the petitioner's 2006 conviction under Fla. Stat. § 893.13(1)(a)(1). Both parties agreed that, of the six discrete alternative elements outlined in § 893.13(1)(a)(1), the “sale” element formed the basis of the petitioner's conviction. The Court agreed with the Board of Immigration Appeals' determination in Matter of L-G-H- that the illicit trafficking definition of a drug trafficking aggravated felony does not require knowledge of the illicit nature of the substance trafficked. Accordingly, the petitioner's conviction qualified as an aggravated felony.
The full text of Choizilme v. Attorney General can be found here:
http://media.ca11.uscourts.gov/opinions/pub/files/201513845.pdf
The petitioner was convicted of violating Fla. Stat. § 893.135(1)(b)1.c, which makes it unlawful to sell, purchase, manufacture, deliver, or bring cocaine into Florida or to knowingly possess cocaine. The Court recognized that it had determined in Cintron v. U.S. Attorney held that Fla. Stat. § 893.135(1)(c) is neither divisible nor a categorical match to a federal crime in the CSA. Given the nearly identical language in the two statutes, Cintron controlled the outcome of the instant case.
The full text of Ulloa Francisco v. Attorney General can be found here:
http://media.ca11.uscourts.gov/opinions/pub/files/201513223.pdf
The Tenth Circuit has determined that a conviction for making false statements in a passport application under 18 U.S.C. § 1542 is categorically a crime involving moral turpitude.
The full text of Afamasaga v. Sessions can be found here:
The Attorney General referred the decision of the Board of Immigration Appeals in Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014), to himself for review and vacated that decision. E-F-H-L- prohibited an Immigration Judge from denying an asylum, withholding of removal, and protection under the Convention Against Torture application based solely on the written application and required that the judge hold a hearing on the merits of the application.
The order referring the case can be found here:
The Ninth Circuit has rejected the Board of Immigration Appeals' (Board) categorical rule, established in Matter of G-G-S-, that an adjudicator may not consider a petitioner's mental health condition when determining whether he has been convicted of a particularly serious crime. "This decision is contrary to Congress’s clearly expressed intent that the analysis of whether a crime is particularly serious requires the agency to conduct a case-by-case analysis of convictions falling outside the category established by Congress, because such categorical rules undermine the ability of the agency to conduct a case-by-case analysis in each case."
"The IJ is not retrying the question of guilt but assessing whether the circumstances of the crime are so serious as to justify removal to a country where there is a significant risk of persecution. Therefore, an IJ, as a fact finder focused on that question, may choose to examine what he or she deems reliable evidence of mental health and decide whether such evidence bears on the dangerousness determination, and ultimately whether the individual committed a particularly serious crime, without disturbing, or 'reassessing' the criminal court’s findings."
"Second, the Board’s concerns about 'going behind' a conviction are unreasonable given that, pursuant to various provisions of the INA, IJs regularly scrutinize the factual circumstances surrounding crimes of conviction."
"Third, the Board’s assumption that consideration of mental health would implicate reassessment of the criminal court’s finding is flawed because the mental health evidence the individual wishes to offer in the immigration court may never have been presented to the criminal court. For example, no specific mental state is required as an element of strict liability offenses, and similarly, mental illness is not a defense to crimes that require only negligence; and at sentencing judges may exercise their discretion and choose not to consider mental illness in making their decision."
The Court also recognized that the decision in G-G-S- is inconsistent with the Board's caselaw permitting an adjudicator to consider "all reliable information" when making a particularly serious crime determination. Finally, the Court disagreed with the Board's determination that mental illness is never relevant to the particularly serious crime assessment because it is inconsistent with the Board's precedent recognizing the relevance of motivation and intent to the particularly serious crime determination and fails to recognize that mental illness bears on intent.
The full text of Gomez-Sanchez v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/04/06/14-72506.pdf
The Ninth Circuit has determined that the Board of Immigration Appeals' (Board) new definition of a theft-related crime involving moral turpitude, outlined in Matter of Diaz-Lizarraga, is a clear break with prior precedent defining theft-related crimes involving moral turpitude, and cannot be applied retroactively to convictions that pre-date the decision in Diaz-Lizarraga. The petitioner's convictions for theft in Oregon did not require a permanent taking, as required by pre-Diaz-Lizarraga precedent.
The decision in Garcia-Martinez v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/04/09/16-72940.pdf
The Ninth Circuit cited a recent Second Circuit decision that reached the same conclusion about the impermissible retroactive application of Diaz-Lizarraga.
The decision in Obeya v. Sessions can be found here:
The Ninth Circuit has determined that a conviction for possession for sale of methamphetamine under section 11378 of the California Health and Safety Code (CHSC) is a drug trafficking aggravated felony. There are two definitions of a drug trafficking aggravated felony. First, under the phrase “illicit trafficking in a controlled substance,” a state drug crime is an aggravated felony “if it contains a trafficking element.” Second, under the phrase “including a drug trafficking crime (as defined in section 924(c) of Title 18),” a state drug crime is an aggravated felony if it would be punishable as a felony under the federal drug laws.
The petitioner argued that his California conviction is not categorically an aggravated felony because section 11378 remains broader than federal law as to defendants’ beliefs about the kind of substance in which they were trafficking. Under section 11378, defendants can be found guilty even if they were mistaken about what specific substance was being trafficked, as long as the substance in which they intended to traffic is in fact controlled under California law. Under federal law, the defendant cannot be mistaken about the nature of the substance he is trafficking. The petitioner argued that because of this mismatch, his conviction does not qualify under the second definition of a drug trafficking aggravated felony.
The court declined to address the petitioner's argument, finding that he trafficked a substance controlled under federal law, and thus, his conviction fell within the first definition of a drug trafficking aggravated felony. "To the extent 'illicit trafficking' in route one incorporates a mens rea requirement, section 11378 suffices because it requires that the defendant intend to possess for sale a controlled substance and actually possess for sale a controlled substance, and that both the intended substance and the actual substance be controlled. This is, in fact, the same mens rea required under federal law."
The full text of United States v. Verduzco-Rangel can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/03/09/15-50559.pdf
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:
