Fifth Circuit Revisits Jurisdiction over MTR

The Fifth Circuit has revisited whether it has jurisdiction to review the denial of a motion to reopen baed on lack of notice when the Department of Homeland Security has reinstated that order. The court concluded that it does have jurisdiction to review, and that the petitioner need not show a gross miscarriage of justice to trigger that jurisdiction.

The court withdrew its previous opinion in this matter and replaced it with the current opinion. The full text of the new opinion in Mejia v. Whitaker can be found here:

http://www.ca5.uscourts.gov/opinions/pub/16/16-60179-CV1.pdf

Los Angeles Times and Orange County Register Articles

I was quoted in the Los Angeles Times and the Orange County Register this week on the effect of the government shutdown and the Republican Senate bill that failed in the Senate last week:

https://www.latimes.com/local/lanow/la-me-immigration-court-shutdown-20190128-story.html

https://www.ocregister.com/2019/01/28/some-immigrants-fight-the-push-to-make-their-future-a-piece-of-trumps-desired-border-wall/#disqus_thread

Tenth Circuit finds that CO Drug Statute is Overbroad and Indivisible with Respect to Definition of Drug Trafficking Aggravated Felony

The Tenth Circuit has determined that a Colorado statute that makes it unlawful “to manufacture, dispense, sell, distribute, possess, or to possess with intent to manufacture, dispense, sell, or distribute a controlled substance” is overbroad compared to the definition of an aggravated felony because it includes fraudulent offers to sell a controlled substance. The court then determined that the statute is indivisible between fraudulent and genuine offers to sell controlled substances.

The full text of United States v. Almanza-Vigil can be found here:

https://www.ca10.uscourts.gov/opinions/17/17-2007.pdf

Supreme Court finds that FL Robbery Statute is Violent under ACCA

The Supreme Court has determined that Florida’s robbery statute qualifies as a violent felony under the Armed Career Criminal Act (ACCA). The Court determined that violent felonies encompass “robbery offenses that require the criminal to overcome the victim’s resistance.”

The force necessary to overcome a victim’s physical resistance is inherently violent and suggests “a degree of power that would not be satisfied by the merest touching.” “This is true because robbery that must overpower a victim’s will—even a feeble or weak-willed victim—necessarily involves a physical confrontation and struggle. The altercation need not cause pain or injury or even be prolonged; it is the physical contest between the criminal and the victim that is itself ‘capable of causing physical pain or injury.”

Given the similarity between the definition of the definition of a crime of violence in the immigration context and a violent felony under the ACCA, this decision could have persuasive impact in the immigration context.

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

https://www.supremecourt.gov/opinions/18pdf/17-5554_4gdj.pdf

Ninth Circuit Affirms that CA Robbery Conviction is a Theft Offense

The Ninth Circuit has determined that a California conviction qualifies as a theft offense aggravated felony. Generic theft requires (1) the taking of (2) property (3) without consent (4) with the intent to deprive the owner of rights and benefits of ownership. The defendants argued that one can be convicted of CPC § 211 robbery as an accessory after the fact, for example, by being a getaway driver. The court rejected this, finding that accessory after the fact to a felony is separately criminalized in section 32 of the Penal Code.

The defendants also argued that because California courts have upheld convictions under § 211 of defendants who engaged only in asportation (taking) of property that had previously been forcibly taken from its owner, § 211 robbery is not generic theft. The court determined that to be convicted of CPC § 211 robbery under any theory, a defendant must form the intent to facilitate or encourage the commission of the robbery before or during the carrying away of the loot. Furthermore, anyone found guilty of CPC § 211 robbery must have engaged in the exercise of control over property without consent with the criminal intent to deprive the owner of the rights and benefits of ownership. Thus, the statute meets the generic definition of a theft offense.

The full text of United States v. Martinez-Hernandez can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/01/09/16-50423.pdf

The amended opinion in this matter can be here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/25/16-50423.pdf

Ninth Circuit Finds no De Minimis Exception to Material Support Bar

The Ninth Circuit has determined that there is no de minimis exception to the material support to terrorism bar. In so doing, the court found that statute was unambiguous, but held that even if it were, it would defer to the Board of Immigration Appeals’ decision in Matter of A-C-M-. The panel held that because petitioner admitted that he gave about $50 to someone whom he knew was a member of the Maoists, a designated terrorist organization at that time, substantial evidence supported the Board’s determination that he gave material support to a terrorist organization, rendering him ineligible for asylum and withholding of removal.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/01/15/16-70534.pdf

Ninth Circuit Withdraws Opinion in Lorenzo v. Sessions

The Ninth Circuit has withdrawn its opinion in Lorenzo v. Sessions, which held that California’s definition of methamphetamine is broader than the federal decision. The court denied the government’s petition for rehearing, but replaced its decision with an unpublished decision, allowing the government to raise its arguments in future cases.

The order withdrawing the published decision can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/01/17/15-70814.pdf

The unpublished decision can be found here:

https://cdn.ca9.uscourts.gov/datastore/memoranda/2019/01/17/15-70814.pdf

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