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Supreme Court Upholds Mandatory Detention for Old Criminal Convictions

The Supreme Court has determined that the mandatory detention provisions in INA 236(c) apply to any of the enumerated grounds, so long as the person was released from criminal custody after October 8, 1998. The implication of this decision is that many individuals convicted years ago of relatively minor crimes (i.e., simple drug possession, theft) can now be detained without a bond hearing by immigration authorities. The Supreme Court noted that the petitioners in this matter did not mount a constitutional challenge to the mandatory detention provision, only a statutory one, leaving open the possibility that the Court may reconsider the constitutionality of the mandatory detention scheme in a future case.

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

https://www.supremecourt.gov/opinions/18pdf/16-1363_a86c.pdf

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Eleventh Circuit Rejects Matter of Richmond

The Eleventh Circuit has rejected the Board of Immigration Appeals’ decision in Matter of Richmond, which held that a false claim to U.S. citizenship but must be material to the benefit sought in order to render the petitioner inadmissible. The court held that the plain language of the false claim statute does not include a materiality requirement, and as such, the decision in Richmond is not entitled to any deference. “Aliens can make a false representation with the goal of obtaining a benefit, even if the false representation does not help them achieve that goal.”

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

http://media.ca11.uscourts.gov/opinions/pub/files/201710636.pdf

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Ninth Circuit Addresses Firm Resettlement Rule

The Ninth Circuit has emphasized that the Board of Immigration Appeals may not ignore a petitioner’s claim to have been persecuted in the country of resettlement when determining if the firm resettlement bar applies to an asylum application. In addition, the firm resettlement bar acts as a statutory bar to asylum, not a limitation as to what evidence of past persecution a court must consider. Evidence of past persecution in the applicant’s home country is relevant to an application for withholding of removal, which is not subject to the firm resettlement bar.

The full text of Arrey v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/02/26/16-73373.pdf

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Ninth Circuit Applies Suspension Clause to Expedited Removal Order

The Ninth Circuit has determined that the Suspension Clause requires that an individual placed in expedited removal proceedings be given a meaningful opportunity to demonstrate that he is being held pursuant to the erroneous application or interpretation of relevant law, and the current limited review provided for by statute does not satisfy this requirement, as it only allows for review of whether an individual is a non-citizen, whether he was actually removed via the expedited removal process, and whether he is a lawful permanent resident or other status that exempts him from the expedited removal process.

The court noted that at its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest. Therefore, when evaluating whether a substitute is adequate, the court must consider the rigor of any earlier proceedings and the intended duration of the detention and the reasons for it.

In the instant case, the petitioner contended that the government denied him a fair procedure, applied an incorrect legal standard to his credible fear contentions, and failed to comply with the applicable statutory and regulatory requirements. “The core of his claim is that the government failed to follow the required procedures and apply the correct legal standards when evaluating his credible fear claim.” The court concluded that the Suspension Clause requires review of these issues because the existing statutory review does not meaningfully address these issues. Past “cases suggest that the Suspension Clause requires review of legal and mixed questions of law and fact related to removal orders, including expedited removal orders.”

The full text of Thuraissigiam v. USDHS can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/07/18-55313.pdf

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Ninth Circuit Rules that Sentencing Enhancements can be Considered in Particularly Serious Crime Analysis

The Ninth Circuit has determined that a sentencing enhancement can be considered when determining whether a petitioner has been convicted of a per se particularly serious crime (i.e., whether it is an aggravated felony for which a sentence of at least five years was imposed).

The full text of Mairena v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/07/15-72833.pdf

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Ninth Circuit Finds that WA Harassment Conviction is Crime of Violence under Federal Sentencing Guidelines.

The Ninth Circuit has determined that a Washington conviction for harassment by making a threat to kill qualifies as a crime of violence under the federal sentencing guidelines because it necessary entails the use of violent force.

In its analysis of the harassment conviction, the Court noted some perceived tension with its decision in US v. Valdivia-Flores, in which it noted that it is possible that no Washington state conviction will qualify as an aggravated felony for immigration purposes. The Court noted the mode of analysis employed in Valdivia-Flores is more akin to the analysis employed under the enumerated offenses clause, rather than the force clause, of the sentencing guidelines. Thus, this is one of those cases that immigration practitioners will want to carefully scrutinize to evaluate if it is determinative as to whether a Washington harassment conviction qualifies as a crime of violence aggravated felony for immigration purposes.

The full text of US v. Door can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/12/17-30165.pdf

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Ninth Circuit Takes up CA Felony Child Abuse En Banc

The Ninth Circuit has granted a petition for en banc rehearing in Martinez-Cedillo v. Barr, a decision finding that a conviction for felony child endangerment in California is a crime of child abuse.

The original decision in Martinez-Cedillo v. Session can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/23/14-71742.pdf

The order granting en banc review can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/18/14-71742.pdf

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Ninth Circuit Emphasizes that Death Threats Constitute Persecution in only a Small Number of Cases

The Ninth Circuit has reiterated that death threats alone will rise to the level of persecution in only a few cases in which the threats are sufficiently specific and menacing so as to cause significant actual suffering or harm. In this case, the petitioner received a threat over the phone, and another in person. The men who approached him were believed to be hitmen or “sicarios,” but the petitioner did not personally know if they had ever carried out threats against other officers for failing to cooperate as requested. The men took no actions of violence against the petitioner, his family or property beyond the threats. “On these facts, although it may have been possible for the IJ to conclude that the threats were sufficiently serious and credible to rise to the level of persecution, we cannot say the evidence compels the conclusion that [the petitioner] suffered past persecution.”

The full text of Duran-Rodriguez v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/20/16-72957.pdf

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Eighth Circuit finds that Arkansas Kidnapping Statute is not Violent Felony under ACCA

The Eighth Circuit has determined that an Arkansas kidnapping statute does not qualify as a violent felony under the Armed Career Criminal Act because it does require the use of physical force. The court also determined that the statute is indivisible. Because the definition of a violent felony is similar to definition of a crime of violence in the immigration law, this case may hav persuasive effect in immigration cases.

The full text of U.S. v. Coleman can be found here:

https://ecf.ca8.uscourts.gov/opndir/19/03/182400P.pdf

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Eighth Circuit finds that IL Conviction for Aggravated Battery on a Public Way is Crime of Violence

The Eighth Circuit has determined that an Illinois conviction for aggravated battery on a public way is a crime of violence under the federal sentencing guidelines. The Illinois definition of simple battery is divisible between force causing bodily injury (which qualifies as a crime of violence) and insulting or provocative touching (which does not qualify as a crime of violence). Applying the modified categorical approach, the court determined that the language of the charging document indicated that the petitioner was convicted of bodily injury battery.

The full text of U.S. v. Roman can be found here:

https://ecf.ca8.uscourts.gov/opndir/19/03/173582P.pdf

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Eighth Circuit finds that Inconclusive Record of Conviction does not Establish Eligibility for Relief

The Eighth Circuit has determined that the Nebraska statute defining criminal impersonation is divisible as compared to the generic definition of a crime involving moral turpitude. However, because the record of conviction was inconclusive as to which subdivision the petitioner was convicted under, he could not meet his burden of establishing eligibility for cancellation of removal for non-lawful permanent residents.

The full text of Pereida v. Barr can be found here:

https://ecf.ca8.uscourts.gov/opndir/19/03/173377P.pdf

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Eighth Circuit finds that IL Attempted Robbery is Crime of Violence

The Eighth Circuit has determined that an Illinois conviction for attempted robbery qualifies as a crime of violence under federal sentencing guidelines. Because the definition of a crime of violence in the immigration law is similar to the definition of a crime of violence in the sentencing law, this decision may have persuasive impact in immigration cases.

The full text of U.S. v. Brown can be found here:

https://ecf.ca8.uscourts.gov/opndir/19/02/181426P.pdf

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Sixth Circuit Affirms Denial of Continuance

The Sixth Circuit has affirmed the denial of a motion to continue by a pro se litigant when his attorney advised him 6 weeks prior to the merits hearing that if he did not pay the balance owed, his attorney would withdraw; the attorney moved to withdraw one week prior to the merits; and the judge granted the motion to withdraw on the day of the merits. Thought the court dismissed the petition for review, it noted that, “[w]e do not hereby endorse the practices employed by either the withdrawing attorney or the IJ. “

The full text of Mendoza-Garcia v. Barr can be found here:

http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0044p-06.pdf

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Fifth Circuit Limits Retroactive Application of Matter of Diaz Lizarraga

The Fifth Circuit has determined that Matter of Diaz Lizarraga, which significantly widened the definition of a crime involving moral turpitude for theft offenses, cannot be applied retroactively applied to convictions entered before the date of publication of Diaz Lizarraga.

The full text of Monteon-Camargo v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/17/17-60345-CV0.pdf

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Fifth Circuit Finds that Filing Change of Address with ICE is Sufficient

The Fifth Circuit has determined that a respondent, who had been served with an NTA, but whose NTA had not yet been filed with the Court, met her obligation to change her address by notifying ICE of the new address. “Because ICE is now responsible for providing the alien’s address to the immigration court when it files the NTA, we read 8 U.S.C. §1229, through the lens of 6 U.S.C. § 557, to require the alien to provide a change of address to ICE at least until the NTA has been filed with the immigration court.”

The full text of Fuentes-Pena v. Barr can be found at:

http://www.ca5.uscourts.gov/opinions/pub/17/17-60637-CV0.pdf

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Fourth Circuit Finds that Issue of "Physical Custody" is a Mixed Question of Fact and Law as it Pertains to Citizenship Claims

The Fourth Circuit has determined that whether a child is residing the in the physical custody of a U.S.-citizen parent, as it relates to citizenship under the Child Citizenship Act, is a mixed question of fact and law, with the factual determinations reviewable by the Board of Immigration Appeals for clear error, and the legal questions reviewable under a de novo standard.

The full text of Duncan v. Barr can be found here:

http://www.ca4.uscourts.gov/opinions/172423.P.pdf

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