These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
The Third Circuit has determined that the good moral character period for cancellation of removal for non-lawful permanent residents does not cease with service of the Notice to Appear. Instead, the period continues to run until the entry of an administratively final decision. In so doing, the court deferred to the Board of Immigration Appeals’ decision in Matter of Ortega-Cabrera.
The full text of Mejia-Castanon v. Attorney General can be found here:
The First Circuit has upheld the denial of a motion to reopen based on changed country conditions in Uganda for an LGBT asylum seeker, finding that the conditions have not materially changed, but have instead, been terrible for the LGBT community since before the applicant’s 2014 removal order.
“Put bluntly, the situation is dreadful — but it has been dreadful throughout the relevant period. The petitioner's submissions fail to show that the level of hostility, persecution, or other mistreatment intensified between May of 2014 (when the merits hearing concluded) and June of 2018 (when the petitioner's second motion to reopen was filed).”
“Let us be perfectly clear. We have no illusions about what is happening in Uganda with respect to LGBT individuals. We regard the views of the Ugandan government toward members of the LGBT community as benighted, and we know that the petitioner's life in her homeland may prove trying. But the conditions that confront LGBT individuals in Uganda, though disturbing, are not new. Those conditions have persisted for decades, and they have not materially changed in the relatively brief interval between the conclusion of the petitioner's 2014 merits hearing and the filing of her 2018 motion to reopen.”
The court did suggest that the Executive Branch has the authority to grant the applicant parole into the United States., given the humanitarian factors in the case.
The full text of Nantume v. Barr can be found here:
The First Circuit has reversed the denial of asylum to a Nepalese citizen, finding that the Department of State reports were insufficiently particularized to the applicant’s claim to rebut the presumption of future persecution arising from the past persecution the applicant experienced.
The full text of Dahal v. Barr can be found here:
The First Circuit has determined that it has no jurisdiction to review the denial of a motion to reopen to seek VAWA cancellation of removal. The Board of Immigration Appeals (Board) also denied the petitioner’s motion to reopen to seek asylum based on domestic abuse perpetrated by her ex-spouse. The Board determined the harm was too remote in time to support eligibility for asylum. The First Circuit remanded, finding that the Board implicitly accepted that the abuse qualified as persecution on account of a protected ground, and as such, should have applied a presumption of future persecution.
The full text of Twum v. Barr can be found here:
The Supreme Court has limited the instances in which deference will be owed to an agency’s interpretation of its own regulations (known as Auer deference).
“The possibility of deference can arise only if a regulation is genuinely ambiguous. And when we use that term, we mean it—genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation. Still more, not all reasonable agency constructions of those truly ambiguous rules are entitled to deference. As just explained, we presume that Congress intended for courts to defer to agencies when they interpret their own ambiguous rules.But when the reasons for that presumption do not apply, or countervailing reasons outweigh them, courts should not give deference to an agency’s reading, except to the extent it has the ‘power to persuade.’” “And although the limits of Auer deference are not susceptible to any rigid test, we have noted various circumstances in which such deference is ‘unwarranted.’ In particular, that will be so when a court concludes that an interpretation does not reflect an agency’s authoritative, expertise-based, fair, or considered judgment.”
Recognizing that not all regulations are ambiguous, the Court implored lower courts to “make a conscientious effort to determine, based on indicia like text, structure, history, and purpose, whether the regulation really has more than one reasonable meaning.”
The Court suggested that interpretation of legal terminology may fall outside an agency’s expertise. “When the agency has no comparative expertise in resolving a regulatory ambiguity, Congress presumably would not grant it that authority.”
“And a court may not defer to a new interpretation, whether or not introduced in litigation, that creates 'unfair surprise’ to regulated parties. That disruption of expectations may occur when an agency substitutes one view of a rule for another. We have therefore only rarely given Auer deference to an agency construction conflicting with a prior one.
The full text of Kisor v. Wilkie can be found here:
The Supreme Court has determined that the generic definition of burglary does not require a defendant to have criminal intent at the first moment that he unlawfully remains in a building, but rather, encompasses offenses where a defendant forms that intent at any time that he is unlawfully remaining the building. As such, Michigan’s third-degree home invasion statute is a match to the generic burglary definition.
The full text of Quarles v. United States can be found here:
The California Court of Appeals, Fourth Appellate District, has held that to succeed on a motion to vacate under Penal Code 1473.7, a person need only show by a preponderance of the evidence: 1) he did not ‘meaningfully understand’ or ‘knowingly accept’ the actual or potential adverse immigration consequences of the plea; and 2) had he understood the consequences, it is reasonably probable he would have instead attempted to ‘defend against’ the charges.” “We agree with the Camacho court’s analysis that the focus of the inquiry in a section 1473.7 motion is on the ‘defendant’s own error in . . . not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States.’”
“We also agree with the Camacho court as to the prejudice component of the amended statute. That is, a ‘prejudicial error’ occurs under section 1473.7 when there is a reasonable probability that the person would not have pleaded guilty—and would have risked going to trial (even if only to figuratively throw a ‘Hail Mary’)—had the person known that the guilty plea would result in mandatory and dire immigration consequences.”
“Mejia said that he would have never pleaded guilty had he known and understood ‘that this would harm me in the future.’” “In short, Mejia plainly established his own ‘error’ within the meaning of section 1473.7, subdivision (a).” “As far as the prejudice component, there is contemporaneous evidence in the record to substantiate Mejia’s claim that he would not have pleaded guilty had he known about the mandatory and dire immigration ramifications. Similar to Camacho, there is compelling evidence in the record that at the time of his guilty pleas, Mejia had been living in the United States for eight years, since he was 14 years old. At the time of his guilty pleas, Mejia’s wife and infant son were living in the United States, as well as his mother and six siblings. Indeed, Mejia’s only remaining family tie to Mexico was his father, who passed away just before Mejia entered his guilty pleas. Moreover, as the lower court acknowledged, there are some lingering questions about the strength of the underlying evidence.”
The full text of People v. Mejia can be found here:
The California Court of Appeals, First Appellate District, has determined that a defense counsel is not required under Padilla to state that a mandatory deportability offense will definitively lead to deportation. “Chen was told the single felony had the potential to cause her removal from the United States and she would not be allowed to come back. This clearly imparts a risk of deportation as required under Padilla and provided Chen notice and the ability to more fully explore, if she wished, the immigration impact of her plea. Moreover, we are unwilling to require counsel to state deportation will be certain because it may not be accurate advice, even in cases where an offense qualifies for mandatory deportation under federal law.”
The full text of People v. Chen can be found here:
A District Court has disagreed with the Attorney General’s decision in Matter of M-S-, which found all individuals who entered the United States without inspection and subsequently were found to have a credible fear of persecution or torture to be ineligible for bond. The court made the following orders:
1. Conduct bond hearings within seven days of a bond hearing request by a class member, and release any class member whose detention time exceeds that limit;
2. Place the burden of proof on Defendant Department of Homeland Security in those bond hearings to demonstrate why the class member should not be released on bond, parole, or other conditions;
3. Record the bond hearing and produce the recording or verbatim transcript of the hearing upon appeal; and
4. Produce a written decision with particularized determinations of individualized findings at the conclusion of the bond hearing
The order will go into effect on 7/16/19.
The full text of Padilla v. ICE can be found here:
https://www.courthousenews.com/wp-content/uploads/2019/07/bond-asylum.pdf
The Board of Immigration Appeals (BIA) has determined that “where an alien has been convicted of violating a state drug statute that includes a controlled substance that is not on the federal controlled substances schedules, he or she must establish a realistic probability that the state would actually apply the language of the statute to prosecute conduct involving that substance in order to avoid the immigration consequences of such a conviction.” In the instant case, the respondent argued that a Florida conviction for possession of marijuana did not render him inadmissible because Florida’s definition of marijuana is broader than the federal definition. “The respondent has also not presented any cases where a defendant was successfully prosecuted under Florida law for an offense that involved only a form of marijuana that was not prohibited by 21 U.S.C. § 802(16).” As such, the BIA found that the respondent had not established a realistic probability that Florida prosecutes marijuana offenses that fall outside the federal definition of marijuana.
The full text of Matter of Guadarrama can be found here:
The Board of Immigration Appeals has determined that a lawful permanent resident is deportable for making a false claim to US citizenship even if he did not know his claim was false. “Significantly, Congress carved out a narrow exception to this provision for those aliens whose parents are or were United States citizens; who permanently resided in the United States prior to the age of 16 years; and who reasonably believed that they were United States citizens when they made such a claim.4 Section 237(a)(3)(D)(ii) of the Act; see also section 212(a)(6)(C)(ii)(II) of the Act. This exception indicates that an alien is not required to know that a claim to citizenship is false, because if Congress had intended to include a knowledge or willfulness requirement in section 237(a)(3)(D)(i), there would be no need for a good faith exception.” “thus, we conclude that under the plain language of that section, it is not necessary to show intent to establish that an alien is deportable for making a false representation of United States citizenship. An alien need only falsely claim to be a United States citizen for any purpose or benefit under the Act or any Federal or State law to be deportable.”
The full text of Matter of Zhang can be found here:
The court has determined that Congress’s two-year reprieve (following the imposition of US immigration law on the CNMI) protected immigrants in the CNMI from removability on the basis that they had not been admitted or paroled into the United States, but did not exempt them from removal based on other grounds of removability set forth in the INA, such as being an applicant for admission who was not in possession of a valid entry document. In addition, because residence in the CNMI prior to the imposition of US immigration laws cannot be used toward the residence requirement for naturalization, it also cannot be used for the continuous physical presence requirement for cancellation of removal for non-lawful permanent residents.
The full text of Torres v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/06/12/13-70653.pdf
“Immigration and Customs Enforcement (ICE) agents implemented a preconceived plan to ‘target’ over 200 factory workers for detention and for interrogation as to their immigration status. The plan turned on obtaining and executing a search warrant for employment records at the factory. The record before us establishes that the search warrant for documents was executed “in order to” arrest undocumented workers present at the factory. Our central question is whether the ICE agents were permitted to carry out preplanned mass detentions, interrogations, and arrests at the factory, without individualized reasonable suspicion. We hold that they were not.”
“The government does not dispute that Perez Cruz was seized for purposes of the Fourth Amendment when he was detained in his workplace, frisked, and handcuffed, or that the ICE agents did so without individualized reasonable suspicion. Rightly so. The record confirms that the agents detained Perez Cruz and his coworkers at the outset of the raid, blocking all exits and prohibiting them from leaving. That ICE suspected MSE was employing undocumented workers did not provide reasonable suspicion that Perez Cruz himself was undocumented.” “The government maintains that, despite this bedrock principle, Michigan v. Summers permitted the agents to detain Perez Cruz without suspicion on their arrival at the MSE factory to execute the search warrant they had in hand.”
“The authority provided by Summers for detention during the execution of a valid search warrant applies in the absence of probable cause or reasonable suspicion as to the detained individuals’ culpability, and so is analogous to the probable cause exceptions for which valid purpose is a prerequisite.” “Perez Cruz has presented substantial, uncontroverted evidence that the search authorized by the warrant was far from the ICE agents’ central concern. Instead, the agents’ principal goal was to detain, interrogate, and arrest a large number of individuals who worked at the MSE factory, hoping to initiate removal proceedings against them.” “Where ‘a safe and efficient search’ is not the primary purpose of the officers’ actions, Summers’s justification for bypassing the Fourth Amendment’s traditional protections disappears, just as the justifications for doing so disappear—and so bypass of the usual Fourth Amendment requisites becomes impermissible—in inventory and administrative search cases.”
The court concluded that Perez Cruz was entitled to suppression of his statements about alienage and the related documents obtained by ICE demonstrating his foreign birth.
The full text of Perez Cruz v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/06/13/15-70530.pdf
The Ninth Circuit has deferred to the Board of Immigration Appeals’ (BIA) determination in Matter of Cortes Medina that a California conviction for indecent exposure is a crime involving moral turpitude (CIMT), overturning its prior precedent in Nunez v. Holder. Thus, the defining characteristic of a CIMT in the indecent exposure context is whether the offense conduct includes “lewd intent.” In assessing the retroactive application of the new definition of an indecent exposure CIMT, the court noted that Cortes Medina was a drastic departure from the published precedent in Nunez. “Nunez was well-settled policy in this Circuit from February 10, 2010, the date on which Nunez was decided, until January 8, 2013, the date on which Cortes Medina was decided.” However, the court found that the petitioner could not have relied on Nunez when he pleaded guilty in 2002 because Nunez had not yet been decided. The petitioner not assert that he paid fees during his immigration proceedings in reliance on Nunez,. nor did he assert that he made strategic decisions or chose not to apply for other forms of relief because he relied on the availability of cancellation of removal under Nunez. Though the court applied the Cortes Medina definition retroactively to the petitioner, it clearly left open the possibility that someone else could demonstrate sufficient reliance on Nunez to prohibit the retractive application of Cortes Medina.
The full text of Betansos v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/05/15-72347.pdf
The Eighth Circuit has determined that an Arkansas conviction for first degree terrorist threatening is divisible between threats of injury and threats to property. Applying the modified categorical approach, the court determined that a conviction for threats of serious injury is a violent felony.
The full text of United States v. Myers can be found here:
The Eighth Circuit has concluded that an Arkansas aggravated robbery conviction is a crime of violence because it requires sufficient force to overcome a victim’s resistance and does not criminalize mere snatching of property.
The full text of United States v. Smith can be found here:
The Eighth Circuit has determined that an Indiana burglary statute matches the federal definition of burglary, even though it includes burglary in outdoor, fenced-in areas.
The full text of Faulkner v. United States can be found here:
The Eighth Circuit has reaffirmed, in light of recent Supreme Court precedent, that a Minnesota conviction for simple robbery is a violent felony under the Armed Career Criminal Act (ACCA). Given the similar definition of a violent felony under the ACCA and a crime of violence in the immigration context, this decision could have persuasive value in the immigration context.
The full text of Taylor v. United States can be found here:
The Seventh Circuit has again remanded a request for protection under the Convention Against Torture filed by a former MS-13 gang member. The court identified a number of places in which the court cherrypicked evidence, failing to acknowledge the documents that corroborated the petitioner’s testimony. In addition, the court admonished the agency for discrediting written statements made by the applicant’s relatives, who the Immigration Judge identified as “interested parties.” While the court acknowledged that an applicant’s family members would be interested in the outcome of a case, they would also be the people most likely to have information relevant to the applicant’s claim.
The full text of Romero Arrazabal v. Barr can be found here:
The Seventh Circuit has upheld the denial of a continuance to an application who waited until 3 months before his merits hearing to file an I-751 waiver, despite his jointly-filed I-751 having been denied 3 years early based on marriage fraud.
The full text of Toure v. Barr can be found here:
