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

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

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

Sixth Circuit finds that Michigan Felonious Assault is not a CIMT

The Sixth Circuit has determined that a Michigan conviction for felonious assault is both overbroad and indivisible with respect to the generic definition of a crime of involving moral turpitude.

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

http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0010p-06.pdf

Third Circuit Declines to Reopen Removal Order when Non-Attorney Advised Petitioner not to Attend Hearing

The petitioner was advised by a non-attorney that he did not need to attend his removal hearing because he had an application for permanent residency pending based on his marriage to a U.S. citizen. Though the non-attorney did not hold himself out as an attorney, he did tell the petitioner he was an immigration expert. The Third Circuit determined that the petitioner’s decision to rely on this advice did not constitute “exceptional circumstances” sufficient to reopen his in absentia removal order.

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

https://www2.ca3.uscourts.gov/opinarch/182082p.pdf

Third Circuit Addresses Circumstance Specific Approach for Fraud Aggravated Felony

The petitioner pled guilty to a single count of wire fraud in the amount of $2290.53. However, the total loss in the dismissed counts, as reflected in the restitution order, was $950,000. The court found that this was sufficient to show a loss to the victim in excess of $10,000 that was sufficiently tethered to the conviction.

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

https://www2.ca3.uscourts.gov/opinarch/173001p.pdf

First Circuit Finds that Persecutor Bar does not Require Persecutory Motive

The First Circuit has deferred to the Board of Immigration Appeals’ decision in Matter of JM Alvarado, and determined that an individual who assists a persecutor of others need not share the persecutor’s motive of persecution on account of the victim’s political opinion. Instead, so long as the direct persecutor was seeking to harm the person because of political opinion, the persecutor bar applies to any who aided that persecution, regardless of the aider’s motivation for doing so.

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

http://media.ca1.uscourts.gov/pdf.opinions/17-1572P-01A.pdf

First Circuit Discusses Equitable Tolling for MTR Deadline

The First Circuit has addressed whether equitable tolling is appropriate for a motion to reopen to seek adjustment of status. The court noted that “the party seeking to toll the deadline bears the burden of showing: ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.’” The court rejected the idea that he filing of an I-130 after the 90-day motion to reopen deadline, on its own, qualifies as an extraordinary circumstance. Similarly, the court noted that any hardship to the petitioner’s children was not substantially different than hardship during the 90-day filing period for a motion to reopen. Additionally,, the court noted that the petitioner waited 16 months after the approval of her I-130 petition to file the motion, undermining any argument that she had acted with diligence. Finally, the court determined that the petitioner had not raised any colorable constitutional or legal arguments that would allow it to review the BIA’s refusal to exercise its sua sponte authority.

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

http://media.ca1.uscourts.gov/pdf.opinions/18-1093P-01A.pdf

"End the Shutdown and Secure the Border Act" Restricts Protections for Vulnerable Immigrants

My op-ed on why the latest Republican Senate bill is being promoted in a misleading manner and actually removes many immigration protections already in place for vulnerable populations:

https://thinkimmigration.org/blog/2019/01/24/end-the-shutdown-and-secure-the-border-act-whats-wrong-with-the-trump-mcconnell-bill/

Third Circuit Finds that NJ Conviction for Possession of Child Pornography is Crime of Child Abuse but not Aggravated Felony

The Third Circuit has determined that a New Jersey conviction for possession of child pornography is a crime of child abuse but not an aggravated felony relating to child pornography.

With respect to the aggravated felony charge, the court noted that “among the conduct that the state statute criminalizes, by means of its definition of ‘sexual contact,’ is the knowing possession of a visual depiction of an intentional touching, ‘either directly or through clothing,’ of the inner thigh, breasts, or buttocks by either the minor victim or adult actor for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor.’ By contrast, in terms of conduct other than sexual acts and sadistic or masochist abuse, the federal offense prohibits the ‘lascivious exhibition’ of only the ‘genitals or pubic area of any person.’” In addition, there are depictions of nudity criminalized by the New Jersey statute that would not fall within the ambit of the federal statute.

With respect to the crime of child abuse charge of removability, the court noted that “[t]he conviction at issue here categorically matches the part of the BIA’s definition of child abuse that includes ‘any act that involves the use or exploitation of a child as an object of sexual gratification.’ Although Salmoran argues that possession of child pornography does not entail exploitation of the child, this position is untenable. “

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

http://www2.ca3.uscourts.gov/opinarch/172683p.pdf

BIA Clarifies Standards for Third-Party Misrepresentations

The Board of Immigration Appeals has determined that when an applicant signs an application, it creates a strong presumption that he is aware of the contents of the application. “When an alien challenges the accuracy of the contents of a signed application, the Immigration Judge must evaluate the alien’s explanations and consider the facts of the particular case to determine whether he or she has rebutted the presumption of knowledge of the document’s contents. However, an alien may not deliberately avoid reading the application or having it explained or translated in an attempt to circumvent the presumption.

The full text of A.J. Valdez and Z. Valdez can be found here:

https://www.justice.gov/file/1121741/download

Eleventh Circuit finds that FL Drug Statute is DivisIble

The Eleventh Circuit has concluded that a Florida drug possession statute is divisible with respect to the identity of the controlled substances criminalized by the statute. The court examined state case law interpretations of the statute and jury instructions to conclude that the substances criminalized by the statute are alternative elements of the statute.

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

http://media.ca11.uscourts.gov/opinions/pub/files/201712247.pdf

Ninth Circuit Clarifies Retroactivity Analysis

The Ninth Circuit has determined that the Board of Immigration Appeals’ decisions regarding the immigration consequences of criminal convictions are permissibly retroactive unless the agency’s caselaw is a change from its own prior case law or regulatory interpretation or circuit precedent. In this case, at the time of the petitioner’s plea, the Board of Immigration Appeals had not issued a precedential decision addressing whether his conviction qualified as a crime involving moral turpitude (CIMT). As such, there was no change in law to implicate concerns about impermissible retroactive application of the case law that ultimately determined that his conviction is a CIMT.

The full text of Olivas-Motta v. Whitaker can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/12/19/14-70543.pdf

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