These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
The Fourth Circuit has determined that federal courts lack jurisdiction under the Administrative Procedure Act to review the denial of an asylee adjustment of status application under 8 U.S.C. § 1252(a)(2)(B)(ii).
The full text of Shaiban v. Jaddou can be found here:
The Third Circuit has determined that a New Jersey robbery conviction does not qualify as a crime involving moral turpitude under the pre-Diaz-Lizarraga standard because New Jersey’s definition of theft does not include an intent to permanently deprive others of their property. The Court further concluded that the force required to commit robbery is only that which is necessary to wrest the object from the victim, and does not require the infliction of any type of bodily harm.
The full text of Diaz Almanzar v. Attorney General can be found here:
Secretary of Homeland Security Alejandro N. Mayorkas announced the extension and redesignation of Burma for Temporary Protected Status for 18 months, from May 26, 2024, to November 25, 2025, due to extraordinary and temporary conditions in Burma that prevent individuals from safely returning. The extension of TPS for Burma allows approximately 2,300 current beneficiaries to retain TPS through November 25, 2025, if they continue to meet TPS eligibility requirements. The redesignation of Burma for TPS allows an estimated 7,300 additional nationals of Burma (or individuals having no nationality who last habitually resided in Burma) to file initial applications to obtain TPS, if they are otherwise eligible and if they established residence in the United States on or before March 21, 2024, and have continued to reside in the United States since then.
The full text of the announcement can be found here:
https://www.dhs.gov/news/2024/03/22/secretary-mayorkas-announces-extension-and-redesignation-burma-myanmar-temporary
The California Court of Appeals, Fifth District, has confirmed that Penal Code section 1473.7 permits vacatur of jury verdicts and probation violations.
“First, to align the state statute with federal immigration law, we interpret the word ‘sentence’ used in section 1473.7, subdivision (a)(1) to encompass the entire ‘term of imprisonment,’ as that phrase is used in the INA. Thus, a section 1473.7 motion may be based on the defendant’s failure to meaningfully misunderstand or defend against the ‘actual or potential adverse immigration consequences of’ the additional incarceration imposed for a probation violation.
Second, we address how a defendant may establish his or her error was ‘prejudicial’ for purposes of section 1473.7, subdivision (a)(1) when adverse immigration consequences are caused by the admission of a probation violation and the incarceration imposed for that violation. In that context, prejudice may be established by demonstrating that, had the defendant been aware of the immigration consequences, (1) there is a reasonable probability he or she would not have admitted the probation violation or (2) there is a reasonable probability that an immigration-neutral punishment would have been available and obtained by the defendant. For example, a defendant might be able to ‘defend against’ the additional incarceration imposed for a probation violation and obtain an immigration-neutral punishment by waiving time credits from his earlier incarceration.
Third, on the question of the relief available under section 1473.7, subdivision (a)(1), we interpret the statute as authorizing an order vacating (1) the initial conviction, (2) the sentence imposed for the initial conviction, (3) a subsequent admission of a probation violation, (4) the additional incarceration imposed for a probation violation, or (5) some combination of the foregoing. As explained below, a motion could challenge the admission of the probation violation, the additional incarceration imposed for the violation, or both.”
The court also provided a comprehensive list of details helpful to include in a declaration by the moving party. “Personal details addressed in a robust declaration include, without limitation, (1) the movant’s age upon arrival in the United States; (2) the identity of the persons with whom the movant came to the United States; (3) the persons with whom the movant lived upon arrival; (4) the movant’s immigration status and language abilities; (5) where the movant’s grandparents, parents, siblings, and other relatives live and their immigration status; (6) the movant’s marital status and, details about any spouse; (7) the ages and citizenship of any children and grandchildren; (8) the schools, if any, the movant attended in the United States; (9) the movant’s employment history; (10) the movant’s history of paying state and federal income taxes and property taxes; (11) persons for whom the movant acts as the primary care giver; (12) real property owned by the movant or the movant’s parents; (13) connections or lack of connections to the movant’s country of origin; (14) community involvement; (15) the movant’s or family members’ military service; and (16) the movant’s pre-plea and post-plea experience with the criminal justice system.”
The court also noted the credibility of a statement by defense counsel that he did not recall discussing immigration consequences when the defendant, when the conviction occurred well before the Supreme Court’s decision in Padilla v. Kentucky. Other factors that corroborated the defendant’s assertion that he did not meaningfully understand the immigration consequences of his conviction were his young age at the time of trial (19), the complexity of immigration law, no 1016.5 advisement provided by the court, and his lack of prior criminal history.
The court also explored how to prove prejudice in an initial sentence when a subsequent probation violation actually caused the immigration consequences of the offense. “The idea of prejudice underlying this argument is that if the jail time imposed in 2002 had been less than 275 days, then his subsequent incarceration of 90 days for the probation violation would not have transformed Carrillo’s conviction into an aggravated felony because the total “term of imprisonment” would have been less than one year. We conclude this theory, if supported by sufficient evidence, is one way of establishing a misunderstanding of immigration consequences was prejudicial for purposes of section 1473.7, subdivision (a)(1). In particular, Carrillo’s misunderstanding would have affected his ability to ‘defend against’ the adverse immigration consequences of the ‘sentence,’ as those terms are used in section 1473.7, subdivision (a)(1).”
Finally, the court noted that the fact that a conviction may have other immigration consequences (i.e., it may be a crime involving moral turpitude even if it’s no longer an aggravated felony) does not prevent a defendant from establishing prejudice when the Department of Homeland Security is not citing that alternate ground of deportability in the Notice to Appear.
The full text of People v. Carrillo can be found here:
The Supreme Court has determined that the “exceptional and extremely unusual hardship” standard in non-LPR cancellation of removal cases is a mixed question of fact and law, subject to federal court review. “The facts underlying any determination on cancellation of removal therefore remain unreviewable. For instance, an IJ’s factfinding on credibility, the seriousness of a family member’s medical condition, or the level of financial support a noncitizen currently provides remain unreviewable. Only the question whether those established facts satisfy the statutory eligibility standard is subject to judicial review. Because this mixed question is primarily factual, that review is deferential.”
The full text of Wilkinson v. Garland can be found here:
https://www.supremecourt.gov/opinions/23pdf/22-666diff_f2bh.pdf
The Board of Immigration Appeals has determined that the regulation contained at 8 C.F.R. § 1240.17 does not apply to an asylum applicant who initially received a negative credible fear determination which was overturned by an Immigration Judge. The Board noted that the regulation only applies to those applicants initially placed in expedited removal proceedings and whose asylum applicant was initially adjudicated by the asylum officer. “The respondent is not included in the category of individuals covered by the regulation at 8 C.F.R. § 1240.17 because he was not initially placed in expedited removal proceedings and USCIS did not adjudicate his asylum application.”
Although USCIS did not adjudicate this individual’s asylum application in the first instance, the Board’s finding that he was not initially placed in expedited removal proceedings is curious, as the agency has long considered a person going through the credible fear process to be subject to an expedited removal order until a positive credible fear determination is made.
The full text of Matter of F-C-S- can be found here:
https://www.justice.gov/d9/2024-03/4074.pdf
The Board of Immigration Appeals has issued an amended opinion recognizing that F-C-S- was placed in expedited removal proceedings, but reaffirming that the regulation at issue only applies to asylum applications initially adjudicated by USCIS:
https://www.justice.gov/d9/2024-04/4074_amended.pdf
The Board of Immigration Appeals issued another amended opinion clarifying the procedural history of the case:
The Eleventh Circuit has determined that the standard for discretion on an adjustment of status with adverse factors (i.e., crimes) is interchangeable with the standard for discretion on a waiver of inadmissibility.
The full text of Navarro Guadarrama v. Attorney General can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/202211065.pdf
The Ninth Circuit has determined that a California conviction for carjacking does not include the requisite intent to steal to be considered a theft aggravated felony. “[A]n individual can be convicted of violating California’s carjacking statute even if they take a car from someone who has an inferior possessory interest in the car—or none at all.” The court also concluded that the statute is not divisible.
The full text of US v. Orozco-Orozco can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/03/12/22-50146.pdf
The Ninth Circuit has determined that it is precluded by the “criminal alien bar” from reviewing the denial of procedural motions (in this case, a motion to remand and a motion to administratively close proceedings).
“With the benefit of Nasrallah’s guidance, we hold that in challenging the denials of her motions for remand and administrative closure, Tapia Coria asks us to review agency decisions that merge with the final order of removal. Each motion, if granted, would ‘affect the validity of the final order of removal’ or disturb the final order of removal.’” The court recognized that it was creating a circuit split with the Fourth Circuit’s decision in Williams.
“Courts must first determine whether the denial of relief raised in a petition for review is part of the final order of removal or merges with it. If so, and if the petitioner is removable based on a conviction covered by § 1252(a)(2)(C), then we lack jurisdiction to review factual challenges to the final order of removal and may only review constitutional claims or questions of law under § 1252(a)(2)(D). But if the denial of relief is not considered part of the ‘final order of removal, as is true with a CAT order, we can review factual challenges notwithstanding a criminal conviction that would otherwise implicate § 1252(a)(2)(C).’”
The full text of Tapia Cora v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/03/19/22-970.pdf
The Fourth Circuit has affirmed the denial of habeas relief to a non-citizen subject to on-going withholding-only proceedings, finding that his removal was still reasonably foreseeable, despite the length of his detention. The court also found that due process did not require the immigration court to provide him with another bond hearing.
The full text of Vasquez Castaneda v. Garland can be found here:
The Fourth Circuit has determined that Virginia’s sexual battery statute is divisible between non-consensual acts and acts committed against a person restrained by the criminal justice system. The portion of the statute criminalizing non-consensual acts constitutes a crime involving moral turpitude. The court additionally found that a Virginia conviction for solicitation of a minor under age 15 is a crime involving moral turpitude because the statute includes a requirement that the defendant has reason to believe he is soliciting someone under age 15.
The full text of Gomez-Ruotolo v. Garland can be found here:
The Second Circuit has deferred to the BIA’s decision in Matter of Wong addressing what minimal constitutional protections must be accorded to a defendant for the proceeding to result in a conviction for immigration purposes. The court further determined that the “minimum constitutional protections” test espoused in Wong could be applied retroactively. Finally, the court concluded that a second-degree forgery conviction in New York categorically matches the definition of a crime involving moral turpitude. The court rejected the petitioner’s void-for-vagueness challenge to the term “crime involving moral turpitude.”
The full text of Wong v. Garland can be found here:
The Tenth Circuit has determined that where a petitioner violated the exhaustion claims processing rule by failing to raise an argument before the agency, it has the authority to consider the failure to exhaust violation, even if the Government does object to the failure to exhaust.
The full text of Miguel-Pena v. Garland can be found here:
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111008946.pdf
The Ninth Circuit has determined that “Mexicans with mental health disorders characterized by psychotic features who exhibit erratic behavior” is not a cognizable particular social group for asylum purposes.
The full text of Uribe v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/03/01/21-1244.pdf
The Eighth Circuit has affirmed a finding that an asylum applicant who transported guns and drugs for MS-13 committed a serious non-political crime.
The full text of Herrera-Eias v. Garland can be found here:
The Seventh Circuit has determined that a reinstatement order is final for judicial review at the completion of withholding only proceedings.
The full text of FJAP v. Garland can be found here:
The Fifth Circuit has determined that a non-citizen is ineligible for adjustment of status through his U.S.-citizen wife because his parole was revoked by the service of a Notice to Appear. Moreover, he had previously conceded his inadmissibility under § 1182(a)(7)(A)(i)(I), leading the court to conclude he remained .an applicant for admission, ineligible for adjustment of status.
The full text of this incredibly incorrect decision (Membreno-Rodriguez v. Garland) can be found here:
https://www.ca5.uscourts.gov/opinions/pub/23/23-60022-CV0.pdf
The Fifth Circuit has determined a respondent did not establish a realistic probability that a Texas conviction for possessing a synthetic cannabinoid criminalizes substances not found in the federal controlled substances schedules. Moreover, the court determined that a non-citizen cannot raise new state law authorities on appeal to meet the realistic probability test because the failure to raise those decisions before the agency renders the arguments unexhausted.
The full text of Alejos-Perez v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/22/22-60555-CV0.pdf
The Ninth Circuit has determined that an Arizona conviction for armed robbery is a theft-related aggravated felony. The court concluded that “to establish armed robbery, the state must prove that the defendant, while armed with a real or simulated deadly weapon, (1) took property from a person or his immediate presence (2) against that person’s will (3) using or threatening force with the coexistent intent to take the property.”
The full text of Guzman-Maldonado v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/02/14/23-9.pdf
The Board of Immigration Appeals has determined that an Immigration Judge has no authority to review a withdrawn I-751. In this case, the respondent and his ex-wife filed a joint I-751, but his wife subsequently withdrew it. Although the respondent claimed she was coerced to do so, the Board determined there was no proof of coercion, such as an affidavit from the ex-wife. “Because the respondent has presented insufficient evidence to substantiate this claim, we do not need to decide whether the Immigration Judge had the authority to review his claim that the Form I-751 petition was withdrawn due to coercion.”
The full text of Matter of Bernardo can be found here:
