Ninth Circuit Finds that BIA's Decision to Certify an Appeal is Discretionary

The Ninth Circuit has determined that the Board of Immigration Appeals’ decision to certify an untimely appeal is a discretionary determination, not subject to judicial review. “The regulation contains no standard for how the agency should exercise its discretion in determining whether to certify a claim for review. And no other regulation or statute provides guidance on this issue. The BIA has stated that it will certify claims in ‘exceptional circumstances,’ In re Liadov, 23 I. & N. Dec. 990, 993 (BIA 2006), but it has not elaborated on which circumstances are considered to be exceptional and thus sufficient to merit certification.”

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/12/13/15-71573.pdf

Ninth Circuit Issues Amended Opinion on Arizona Domestic Violence Conviction

The Ninth Circuit has amended its decision in Cornejo-Villagrana v. Sessions. In the amended opinion, the court recognized that Arizona’s misdemeanor domestic assault statute is divisible between intentional use of force and reckless use of force. However, the court determined that the record was clear that the petitioner had been convicted of a Class 1 misdemeanor, which required that his assault involve the intentional or knowing infliction of injury. Thus, the court declined to address whether the reckless use of force would be sufficient to constitute a crime of violence.

The amended opinion can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/12/27/13-72185.pdf

Eighth Circuit finds that Missouri First-Degree Robbery Conviction is Crime of Violence

The Eighth Circuit has determined that a Missouri conviction for first-degree robbery qualifies as a crime of violence. In so doing, the court noted that first-degree robbery has the element of “forcibly steal[ing] property,” which involves the use of violent force.

The full text of United States v. Shine can be found here:
http://media.ca8.uscourts.gov/opndir/18/12/173119P.pdf

Sixth Circuit Defines Material Support to a Tier 3 Terrorist Group

The Sixth Circuit has provided guidance as to what constitutes “material support” to a Tier 3 terrorist group. “We read material here to incorporate both the “relevant” and “significant” definitions. Context helps us reach that conclusion. The statute at issue bars admission to an alien who has provided material support: for the commission of a terrorist activity to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity, or to a terrorist organization. That is, the support must be relevant to terrorism. And the support must also be significant. Indeed, the statute provides a non-exhaustive list of examples of material support, including safe house, transportation, communication, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, Those examples suggest that the support must be significant or even essential to the commission of terrorism. Although the statute’s list of examples is non-exhaustive, the copying and distribution of literature may not seem as relevant or significant to the commission of terrorism as the provision of weapons or explosives. But the Supreme Court explained in Holder v. Humanitarian Law Project , seemingly benign support may provide essential assistance to a violent terrorist organization.”

The full text of Hosseini v. Nielsen can be found here:

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0276p-06.pdf

Sixth Circuit Finds that Res Judicata Applies in Removal Proceedings

The Sixth Circuit has determined that the canon of res judicata applies to removal proceedings. “To restate the canon: because res judicata is a well-established common-law principle, it presumptively applies to an administrative adjudicatory scheme set up by a statute unless a purpose to the contrary is evident. Congress must make the contrary statutory purpose clear, either through explicit text or through an obvious inference from the statute’s structure.”

Applying the canon of res judicata, the court found that the Department of Homeland Security could be barred from charging the petitioner with a burglary-related aggravated felony after it failed to meet its burden of proving that the burglary conviction was a crime of violence. Notably, the removal proceedings were terminated after the failed crime of violence charge, and before the Department charged the petitioner with a burglary offense. However, because it was unclear if the termination order was with or without prejudice, the court remanded the case to the agency to determine if the case had been litigated to finality.

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

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0272p-06.pdf

Sixth Circuit Rejects Jurisdictional Challenge

The Sixth Circuit has rejected the argument that a Notice to Appear that lacks the date and location of a petitioner’s first immigration court hearing creates a jurisdictional defect that deprives the immigration court of subject matter jurisdiction. The court instead agreed with the Board of Immigration Appeals’ decision in Matter of Bermudez Cota, and determined that jurisdiction is established so long as the time and date of the first hearing is provided in a subsequent notice of hearing.

The full text of Hernandez-Perez v. Whitaker can be found here:

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0269p-06.pdf

Fifth Circuit Finds that Indirect Force is Sufficient for a Crime of Violence

In a striking departure from prior precedent, the Fifth Circuit has determined that the use of indirect force can be sufficient to meet the definition of a crime of violence. In so doing, the court determined that a conviction assisting a suicide can be a crime of violence, even though it does not require a defendant to have used violent force against the decedent. In addition, the court abolished the distinction between application of violent force and causing injury.. The court also clarified that “bodily contact” is not required for a crime of violence. The court even went so far as to say that providing a plastic bag to a suicidal person qualifies as the application of violent force so long as the defendant knew the decedent planned to use the plastic bag to take his own life.

The full text of United States v. Reyes-Contreras can be found here:

http://www.ca5.uscourts.gov/opinions/pub/16/16-41218-CR2.pdf

Fourth Circuit Reaffirms that Death Threats Constitute Persecution

The Fourth Circuit has reaffirmed that an applicant who experienced multiple, explicit death threats suffered harm rising to the level of persecution.

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

http://www.ca4.uscourts.gov/Opinions/171404.P.pdf

Third Circuit finds that PA Conviction for Endangering the Welfare of a Child is not Crime of Child Abuse

The Third Circuit has determined that a Pennsylvania conviction for endangering the welfare of a child does not match the definition of a crime of child abuse. “To qualify as a crime of child abuse under the INA, a state child endangerment offense must require that the actor’s conduct create a particular likelihood of harm to the child that rises above conduct that creates only the bare potential for nonserious harm. As a result, where a state child endangerment statute fails to require any particular likelihood of harm to a child, it falls outside the ambit of the INA’s child abuse offense.”

Pennsylvania’s child endangerment statute has been construed to impose a duty on parents and other caretakers to not risk any kind of harm, not just bodily injury, to a minor child in his or her care. Thus, a conviction for endangering the welfare of children only requires proof of circumstances that could threaten the child’s physical or psychological welfare.

The Third Circuit determined that “the Pennsylvania statute lacks an element requiring proof of a sufficiently high risk of harm.” “Because child abuse under the INA requires a specified risk of harm that rises above conduct that creates only the bare potential for non-serious harm, and the Pennsylvania child endangerment statute in effect at the time of Liao’s conviction did not, the elements of the two statutes do not match. As a result, under the categorical approach, Pennsylvania’s child endangerment statute under which Liao was convicted does not fit within the definition of child abuse under § 1227(a)(2)(E)(i), and the BIA erred in concluding otherwise.“

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

https://www2.ca3.uscourts.gov/opinarch/171825p.pdf

Second Circuit finds that AZ Drug Statute is Overbroad and Indivisible

The Second Circuit has determined that an Arizona statute criminalizing transportation, importation, and sale of a controlled substance is overbroad because it criminalizes substances not found in the Controlled Substances Act. In addition, the statute is indivisible with respect to the substances criminalized. As such, the conviction does not qualify as a drug trafficking conviction for federal sentencing purposes.

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

http://www.ca2.uscourts.gov/decisions/isysquery/86c00b11-2114-456d-81ea-09598328cca8/20/doc/17-1851_op.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/86c00b11-2114-456d-81ea-09598328cca8/20/hilite/

Second Circuit Applies De Novo Review to Good Faith Marriage Waiver

The Second Circuit has determined that de novo review applies to the mixed question of law and fact of whether a petitioner has established that his marriage was entered into in good faith under 8 USC § 1186a(c)(4)(B). “Here, the established facts—subject to clear error review by the BIA—were that the couple married in Bangladesh in mid-2003, barely resided together during their marriage, divorced six 11 months after Alom’s entry to the United States in 2005, and had no children or demonstrable marital property. But the BIA failed to acknowledge the de novo standard applicable to the mixed question of whether the established facts were sufficient to establish a good faith marriage under § 1186a(c)(4)(B).”

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

http://www.ca2.uscourts.gov/decisions/isysquery/86c00b11-2114-456d-81ea-09598328cca8/8/doc/17-2627_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/86c00b11-2114-456d-81ea-09598328cca8/8/hilite/

CA Appeals Court Addresses Standard of Review for 1473.7 Appeal

The California Court of Appeal, Fourth Appellate District, has determined that a mixed standard of review applies to appeal of 1473.7 motions. The appellate court will uphold the trial court's factual findings if they are supported by substantial evidence and will exercise independent judgment on the legal issues. The court further determined that in August 2000, there was no obligation for defense counsel to specifically advise a defendant that a plea would result in exclusion from admission or denial of naturalization or to negotiate an immigration-neutral plea.

The court confined the decision in People v. Soriano to stand for the proposition that an attorney cannot give incorrect advice when asked about immigration consequences, but did not to create an independent duty to research and advise about immigration consequences.

The court also distinguished the duty to negotiate alternative pleas in People v. Bautista. “Gonzalez has presented no evidence that a more immigration favorable disposition was available in his case. Nor did he offer an expert opinion that Guerrero's representation of him fell below an objective standard of reasonableness at the time Gonzalez pled guilty. “

The decision in People v. Gonzalez can be found here:

http://www.courts.ca.gov/opinions/documents/D073436.PDF

Third Circuit Finds that Detainees in Reinstatement Proceedings are Entitled to Bond Hearings

The Third Circuit has held that a reinstated order of removal against a person who has initiated withholding-only proceedings is administratively final. Therefore, this person’s detention is governed by 8 USC § 1231(a). The court further determined that it “may be the case that the Due Process Clause prohibits prolonged detention under § 1231(a)(6) without a bond hearing.” However, the court ultimately stated that “[i]n order to avoid determining whether Guerrero Sanchez’s detention violates the Due Process Clause, we adopt the Ninth Circuit’s limiting construction of § 1231(a)(6) that an alien facing prolonged detention under that provision is entitled to a bond hearing before an immigration judge and is entitled to be released from detention unless the government establishes that the alien poses a risk of flight or a danger to the community. Critically, our holding today necessarily applies to all aliens detained under § 1231(a)(6), not just those, like Guerrero-Sanchez, who have reinstated removal orders under § 1231(a)(5) and are pursuing withholding-only relief.” The court held that the Department of Homeland Security would have the burden in these bond proceedings of demonstrating by clear and convincing that the non-citizen is a flight risk or a danger to the community. Finally, the court determined that detention becomes prolonged at the six-month mark, triggering the need for this bond hearing.

The full text of Guerrero-Sanchez v. Warden York County Prison can be found here:

http://www2.ca3.uscourts.gov/opinarch/164134p.pdf

BIA Finds that IJ has Initial Jurisdiction over Aged-Out UAC

The Board of Immigration Appeals has determined that an unaccompanied minor who turns 18 before filing an asylum application must file the application with the Immigration Judge. In such instances, the Immigration Judge has initial jurisdiction over the asylum application, not the Asylum Office.

The full text of Matter of M-A-C-O- can be found here:

https://www.justice.gov/eoir/page/file/1101226/download

BIA Addresses Conditions in Prison and Mental Health Facilities as a Form of Torture

The Board of Immigration Appeals has determined that “where the evidence regarding an application for protection under the Convention Against Torture plausibly establishes that abusive or squalid conditions in pretrial detention facilities, prisons, or mental health institutions in the country of removal are the result of neglect, a lack of resources, or insufficient training and education, rather than a specific intent to cause severe pain and suffering, an Immigration Judge’s finding that the applicant did not establish a sufficient likelihood that he or she will experience torture in these settings is not clearly erroneous.”

“The evidence of record indicates that the substandard conditions in mental health facilities, pretrial detention, and prisons in Mexico are the result of neglect, lack of resources, or insufficient training and education. In light of this evidence, and recognizing the Mexican Government’s efforts to improve those conditions, we will uphold the Immigration Judge’s finding that the respondent has not shown that it is more likely than not that he will experience acts of torture specifically intended to inflict severe physical or mental pain or suffering on him by or at the instigation of, or with the consent or acquiescence of, a Mexican public official or an individual acting in an official capacity.”

The full text of Matter of J-R-G-P- can be found here:

https://www.justice.gov/eoir/page/file/1106661/download

BIA Finds that K-1 Entrant Cannot Adjust without Affidavit of Support from K-1 Petitioner

The Board of Immigration Appeals has determined that an individual who enters the United States on a fiance visa, marries the petitioner, but divorces before adjusting status to lawful permanent residence, cannot adjust unless the fiance visa petitioner signs an affidavit of support.

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

https://www.justice.gov/eoir/page/file/1112411/download

Eleventh Circuit Construes Stop-Time Rule for Lawful Permanent Residents

The Eleventh Circuit has determined that a lawful permanent resident not seeking admission can still trigger the stop-time rule (which stops the accrual of continuous residence required for cancellation of removal) if he is convicted of an offense that renders him inadmissible. In so doing, the court joined the Second, Third, and Fifth Circuits, while diverging from the Ninth Circuit.

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

http://media.ca11.uscourts.gov/opinions/pub/files/201713055.pdf

Ninth Circuit Analyzes Travel Act under Categorical Approach

The Board of Immigration Appeals (“BIA”) concluded that Myers is removable based on his felony conviction under the Travel Act, 18 U.S.C. § 1952(a)(3), for traveling in interstate commerce to facilitate an unlawful activity. The unlawful activity facilitated by Myers was identified as “possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1).” The BIA held that Myers is removable under 8 U.S.C. § 1227(a)(2)(B)(i) because he had been convicted of a controlled substance offense. “Although not all convictions under the Travel Act represent violations related to controlled substances, meaning that the statute is not a categorical match to the removal statute, we conclude that the Travel Act is divisible in that respect. We further conclude that Myers’s conviction qualifies as a controlled substance offense under the modified categorical approach.” The court noted that In the Ninth Circuit, a specific “unlawful activity” is an element of a Travel Act offense.

Myers also sought relief in the form of cancellation of removal under 8 U.S.C. § 1229b. The BIA concluded that Myers is ineligible for that relief because he had not been present in the United States prior to the initiation of the removal proceedings against him for the number of years required under the statute. The court noted that the statute states that the relevant time period ends “when the alien is served a notice to appear.” 8 U.S.C. § 1229b(d)(1). The BIA used the date on which the notice to appear was issued, not the date when it was served on Myers.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/25/17-71416.pdf

Ninth Circuit Finds H-1B Holder Ineligible for Adjustment of Status

Ma’s employer filed for an extension of his H-1B visa, but it was denied, and his employer failed to file an application for status adjustment within 180 days of the expiration of his H-1B visa. Because the application to extend the H-1B visa was denied, Ma was without lawful status in this country for 331 days before he applied to adjust his status—well over the 180 days permitted by 8 U.S.C. § 1255(k)(2)(A), which would have otherwise protected him from removal. He was, however, legally authorized to work in the country during the months between the expiration of his H-1B visa and the denial of his application for an H-1B extension pursuant to 8 C.F.R. § 274a.12(b)(20). Nonetheless, because 8 C.F.R. § 1245.1(d) does not recognize regulatory employment authorization as conferring lawful immigration status for purposes of status adjustment under 8 U.S.C. § 1255(k)(2)(A), the court concluded that Ma is ineligible for status adjustment.

“While nonimmigrant workers like Ma may legally continue working in this country for up to 240 days while they wait to hear back from the USCIS on their extension applications, they do not have lawful status during this period of time for purposes of status adjustment.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/02/15-73520.pdf

Ninth Circuit finds Lewd and Lascivious Acts Conviction is not CIMT or Crime of Child Abuse

The Ninth Circuit has determined that a conviction under California Penal Code 288(c)(1) (lewd and lascivious acts on a child who is 14 or 15 years old when the defendant is at least 10 years old than the the child) is neither a crime involving moral turpitude nor categorically a crime of child abuse. A crime under § 288(c)(1) contains five elements: (1) willfully and lewdly; (2) committing any lewd or lascivious act; (3) on a child ages 14 or 15; (4) with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the defendant or the child; and (5) the defendant must be at least ten years older than the child.

The “lewd or lascivious” element of the crime focuses on the defendant’s sexual intent, rather than the act performed. If the defendant has the required intent, then any touching violates § 288, even if the touching is outwardly innocuous and inoffensive. Physical affection among relatives, generally considered acceptable conduct, nonetheless could satisfy the ‘any touching’ aspect of section 288. Even constructive touching can violate § 288(c)(1). If the minor touches himself, that act is imputable to the defendant as if the touching had been actually done by his own hands. A person may violate § 288(c)(1) by making sexual requests over the telephone, or through text messages.

The mens rea requirement of § 288(c)(1) has also been expansively construed. Section 288(c)(1) requires that the defendant act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or of the minor. But the statute does not require that the defendant know that the minor is underage. Under California law, a good faith and reasonable mistake of age is a defense to statutory rape, but it is not a defense to a charge under § 288(c)(1).

Because § 288(c)(1) requires only sexual intent, and because a good-faith reasonable mistake of age is not a defense, a defendant is not required to have evil or malicious intent. Section 288(c)(1) thus lacks the corrupt scienter requirement that is the touchstone of moral turpitude. Nor does § 288(c)(1) require intent to injury or actual injury. Any touching, even if consensual, outwardly innocuous and inoffensive, and innocently and warmly received, can violate § 288(c)(1). Section 288(c)(1) does involve a protected class of persons—minors aged 14 or 15. But not all criminal statutes intended to protect minors establish crimes involving moral turpitude, if the conduct at issue is relatively minor.

“We hold that § 288(c)(1) is not categorically a crime involving moral turpitude. Because the statute contains a single, indivisible set of elements, the modified categorical approach does not apply.”

The BIA defines crime of child abuse, child neglect, or child abandonment as a “unitary concept” that encompasses “any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child’s physical or mental well-being, including sexual abuse or exploitation.” The “maltreatment” element requires either proof of actual injury or proof of a “sufficiently high risk of harm to a child.”

Section 288(c)(1) is broader than the generic definition of a “crime of child abuse” in two ways. First, the generic definition requires that a defendant act with a mens rea of at least criminal negligence. Section 288(c)(1) has no such requirement. It requires a defendant to have acted “willfully,” but this requirement applies only to the defendant’s commission of the act. Section 288(c)(1) requires only that a defendant did not act accidentally; it does not “require any intent to violate law, or to injure another, or to acquire any advantage.”

Second, § 288(c)(1) does not require proof of actual injury, or a “sufficiently high risk of harm,” as an element of the offense. Section 288(c)(1) applies irrespective of whether the touching is outwardly innocuous, or whether the minor is aware of the nature of the contact at all. “We hold that Cal. Penal Code § 288(c)(1) is not categorically a ‘crime of child abuse’ under 8 U.S.C. § 1227(a)(2)(E)(i).”

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/08/14-72730.pdf