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

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

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

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

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

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

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

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

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

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

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

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/

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

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

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/

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

Fifth Circuit Refuses to Reopen Reinstated Order

The Fifth Circuit has found that the reinstatement provision, which prevents reopening of a reinstated removal order, trumps the statutory provision allowing a non-citizen to file one motion to reopen.

“Although Rodriguez-Saragosa responds that we have ‘created a conflict’ between 8 U.S.C. § 1229a(c)(7)(A) and § 1231(a)(5), we detect no inconsistency. The former provides that every alien ordered removed from the United States has a right to file one motion to reopen his or her removal proceedings. And the latter provides that an alien forfeits that right by reentering the country illegally. That is the clear import of the statute’s unambiguous text.”

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

http://www.ca5.uscourts.gov/opinions/pub/16/16-60515-CV0.pdf

Sixth Circuit finds PA Drug Statute Divisible

The Sixth Circuit has determined that Pennsylvania Consolidated Statutes, Title 35, § 780-113(a)(30) (possession with intent to deliver a controlled substance) is divisible with respect to the substance at issue. As such, the Immigration Court correctly reviewed the record of conviction to determine that the petitioner’s conviction involved marijuana, a substance regulated by the Controlled Substances Act.

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

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0180p-06.pdf

Seventh Circuit Remands Family-Based Asylum Claim

The Seventh Circuit has determined that a petitioner who was threatened at gunpoint by maras because his brother left the gang was persecuted on account of his family membership.

In a footnote, the court also recognized the indecipherable nature of the BIA’s case law on particular social groups. “W.G.A.’s arguments that the Board’s interpretation is unreasonable have some force. He argues that social distinction and particularity create a conceptual trap that is difficult, if not impossible, to navigate. The applicant must identify a group that is broad enough that the society as a whole recognizes it, but not so broad that it fails particularity. And as we have stated, rejecting a social group because it is too broad ‘would be akin to saying that the victims of widespread governmental ethnic cleansing can‐ not receive asylum simply because there are too many of them.’”

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-21/C:16-4193:J:Hamilton:aut:T:fnOp:N:2205587:S:0

Seventh Circuit Overturns CAT Denial

The Seventh Circuit has sustained the appeal of a petitioner for protection under the Convention Against Torture (CAT) involved in drug trafficking, who feared reprisals from the Zetas for the drugs seized by the police. “The parties agree that a fugitive Los Zetas leader warned Rivas-Pena that he would be responsible if anything happened to the contraband and that ‘several hundred thousand dollars,’ in Dr. Jones’s expert opinion, “‘s not an amount the Zetas will forgive and forget.’ Given these facts—and Dr. Jones’s additional unchallenged opinion that Rivas-Pena faces ‘a very high to near certainty [] of being tortured and killed if deported to Mexico’—a reasonable factfinder would not dismiss as merely ‘speculative’ Rivas-Pena’s fear of harm by Los Zetas.”

“The only explanation the Board and the judge gave for dismissing Rivas-Pena’s fears as ‘speculative; was that neither Rivas-Pena nor his family have been ‘tortured, harmed, threatened, or even inquired after’ by Los Zetas since 2013. That explanation from the Board and the judge fails to engage with why Rivas-Pena has had no recent contact with Los Zetas: he has been in jail or federal immigration custody in the United States ever since he incurred his ‘debt’ to the cartel in 2013. While it is conceivable that the cartel has members who are detained in the United States, it is not surprising that the cartel would bide its time until Rivas-Pena is no longer protected by American authorities.”

The full text of Rivas-Pena v. Sessions can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-21/C:18-1183:J:Hamilton:aut:T:fnOp:N:2205175:S:0