Eighth Circuit Invalidates Departure Bar on Statutory Motions to Reopen

The Eighth Circuit has granted in part a petition for review filed by a Filipino lawful permanent resident removed based on two since-vacated California convictions, holding that the regulatory "departure bar" cannot be used to deny a statutory motion to reopen filed after the noncitizen has already been removed.

Joining every other circuit to address the question, the Court held that 8 U.S.C. § 1229a(c)(7) contains no geographic limitation on who may file a motion to reopen, and that the BIA's regulation barring post-departure motions conflicts with that statutory grant, especially now that Loper Bright forecloses deference to the agency's contrary interpretation. The Court remanded for the BIA to consider the merits of the motion, which is based on the vacatur of the petitioner's underlying criminal convictions, while confirming that courts still lack jurisdiction to review the separate denial of sua sponte reopening.

The full text of Lacsina v. Blanche can be found here: https://ecf.ca8.uscourts.gov/opndir/26/08/243373P.pdf

Eighth Circuit Denies Review Where Cancellation of Removal Arguments Were Not Exhausted

The Eighth Circuit has denied a petition for review filed by a Guatemalan woman found ineligible for cancellation of removal based on a Nebraska conviction for negligent child abuse of her stepdaughter. Before the agency, she argued only that her conviction did not match the generic federal definition of a crime of child abuse; before the court, she raised entirely new arguments, including that the agency relied on the wrong statutory provision and overlooked a petty-offense exception.

The Court held that these new arguments were unexhausted because the petitioner never raised them in her adversarial, counseled proceedings before the immigration judge and the Board. Since a reviewing court is one of review and not first view, the Court declined to consider arguments the agency never had the opportunity to address and denied the petition.

The full text of Lopez-Lopez v. Blanche can be found here: https://ecf.ca8.uscourts.gov/opndir/26/07/251924P.pdf

Eighth Circuit Holds Minnesota Third-Degree Murder Is a Crime of Violence Under the Guidelines

The Eighth Circuit has affirmed a fifteen-year mandatory minimum sentence for a felon-in-possession defendant whose prior Minnesota conviction for third-degree murder was used to enhance his Sentencing Guidelines range. The defendant argued the district court erred in treating his 2012 conviction as a "crime of violence" under U.S.S.G. § 4B1.2(a).

Adopting the Third Circuit's definition of generic murder as encompassing intentional killing, killing during a dangerous felony, or killing through reckless and depraved indifference to human life, the Court held that Minnesota's third-degree murder statute, which criminalizes causing death through an act "eminently dangerous to others" showing a "depraved mind," substantially corresponds to that generic definition. Because the conviction qualified as murder under the enumerated offenses clause, the Court did not need to consider whether it also satisfied the Guidelines' separate force clause.

Although this is a criminal sentencing matter, it is likely to be persuasive when analyzing whether convictions qualify as aggravated felonies related to murder in the immigration context.

The full text of United States v. Hayden can be found here: https://ecf.ca8.uscourts.gov/opndir/26/07/251880P.pdf

Eighth Circuit Applies Substantial Evidence Review to Cancellation Hardship Determination

The Eighth Circuit has denied a petition for review filed by a Guatemalan mother of six U.S. citizen children who sought cancellation of removal after living in the United States for approximately twenty years. The petitioner argued that her removal would cause qualifying hardship to her children.

The Court adopted substantial evidence review for cancellation hardship determinations after Wilkinson and concluded that the record did not compel a finding of exceptional and extremely unusual hardship. The Court also rejected the petitioner’s due process arguments, finding no liberty interest in discretionary cancellation of removal, and found that her voluntary departure argument was moot because she had already been removed.

The full text of Lopez-Vasquez v. Blanche can be found here: https://ecf.ca8.uscourts.gov/opndir/26/05/251338P.pdf

Eighth Circuit Finds that Non-Citizens who Enter Without Inspection are Subject to Mandatory Detention

The Eight Circuit, joining the Fifth Circuit and splitting from the Seventh Circuit, has determined that all non-citizens who enter the United States without inspection are subject to mandatory detention under 8 USC 1225.

The full text of Avila v. Bondi can be found here: https://ecf.ca8.uscourts.gov/opndir/26/03/253248P.pdf

Eighth Circuit Applies Substantial Evidence Review to Hardship Determination

The Eighth Circuit has determined that the proper standard for reviewing the agency’s hardship determination in a cancellation of removal case is substantial evidence.

The full text of Alonso-Juarez v. Bondi can be found here:

https://ecf.ca8.uscourts.gov/opndir/26/03/242476P.pdf

Eighth Circuit Finds that North Dakota Robbery Conviction is Attempted Theft Aggravated Felony

The Eighth Circuit has determined that North Dakota’s robbery statute matches the definition of an attempted theft aggravated felony, rejecting the claim that the statute covers crimes of deceit.

The full text of Banyee v. Bondi can be found here: https://ecf.ca8.uscourts.gov/opndir/26/01/243590P.pdf

Eighth Circuit Affirms Denial of IAC Claim

The Eighth Circuit has affirmed the agency’s denial of a motion to reopen based on ineffective assistance of counsel because the attorney failed to provide proof that his self-reported bar complaint was actually sent to the relevant disciplinary authorities.

The full text of Rodriguez Irias v. Bondi can be found here: https://ecf.ca8.uscourts.gov/opndir/26/02/251419P.pdf

Eighth Circuit Determines that Arkansas Definition of Cocaine is Broader than Definition in CSA

The Eighth Circuit has determined that Arkansas’ definition of cocaine is broader than the federal definition in the CSA because it criminalizes more isomers than the federal definition.

The full text of United States v. Ferguson can be found here: https://ecf.ca8.uscourts.gov/opndir/26/01/242178P.pdf

Eighth Circuit Rejects Petitioner's Challenge to North Dakota Marijuana Statute

The Eighth Circuit has rejected a non-citizen’s argument that she is not deportable for a controlled substance violation because the North Dakota statute in effect at the time of her conviction included hemp in the definition of marijuana while the federal definition in effect at the time of her removal proceedings excluded hemp. The Court also rejected the argument that the North Dakota definition of marijuana is overbroad as compared to the federal definition because the federal definition includes only “all parts of the plant Cannabis sativa L.,” while the North Dakota definition is not limited to a specific species, finding that the federal definition of cannabis extended to all “marihuana-producing Cannabis.”

The full text of Salinas v. Bondi can be found here: https://ecf.ca8.uscourts.gov/opndir/25/03/232779P.pdf

Eighth Circuit Finds that MN Third Degree Criminal Sexual Conduct does not Match Federal Definition of Rape

The Eighth Circuit has determined that Minnesota’s crime of third-degree criminal sexual conduct does not match the generic definition of rape because the Minnesota crime includes digital or mechanical penetration, which are outside the generic definition of rape.

The full text of Quito-Guachichulca v. Garland can be found here:

https://ecf.ca8.uscourts.gov/opndir/24/12/231069P.pdf

Eighth Circuit Determines that Prolonged Detention is Lawful while Proceedings are Pending

The Eighth Circuit has determined that year-long detention of a non-citizen without a bond hearing is permissible so long as the non-citizen’s removal proceedings remain pending on appeal.

The full text of Banyee v. Garland can be found here: https://ecf.ca8.uscourts.gov/opndir/24/09/222252P.pdf

Eighth Circuit Address Lawfulness of Temporary BIA Member and Religious-Based Asylum Claim

The Eighth Circuit has determined that the terms of temporary members of the Board of Immigration Appeals (Board) can be renewed. The court also remanded a religion-based asylum claim, remanding for the Board to consider whether statements and actions by gang members demonstrated that the applicant’s evangelizing was one central reason for the harm he suffered.

The full text of Rivera v. Garland can be found here: https://media.ca8.uscourts.gov/opndir/24/07/232351P.pdf

Eighth Circuit finds that Iowa Conviction for Possession of Child Pornography is not Aggravated Felony

The Eighth Circuit has determined that an Iowa conviction for possession or purchase of a visual depiction that shows a person under the age of 18 engaging in a prohibited sexual act or the simulation of a prohibited sexual act is not a sexual abuse of a minor aggravated felony. The Court observed that federal law requires “the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in” the sexually explicit conduct, while Iowa Code § 728.12(3) does not. The Court remanded the case for further consideration of the petitioner’s argument that the conviction is also not a crime involving moral turpitude because it does not require that the defendant know the person in the image is underage.

The full text of Huynh v. Garland can be found here:

https://media.ca8.uscourts.gov/opndir/24/05/231318P.pdf

Eighth Circuit Affirms Serious Non-Political Crime Finding

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:

http://media.ca8.uscourts.gov/opndir/24/03/223565P.pdf

Eighth Circuit Finds Iowa Domestic Abuse Conviction is not Crime of Violence

The Eighth Circuit has determined that an Iowa domestic abuse conviction is not a crime of violence because it criminalizes simple assault.

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

http://media.ca8.uscourts.gov/opndir/24/01/231048P.pdf

The Eighth Circuit Finds that Voluntary Manslaughter is a Crime of Violence

The Eighth Circuit has affirmed that a federal conviction for voluntary manslaughter qualifies as a crime of violence because the mens rea of “depraved heart” or “extreme recklessness” is sufficient to establish a use of force against the person of another.

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

http://media.ca8.uscourts.gov/opndir/24/01/223452P.pdf

Eighth Circuit Finds Hiring a Person under 16 for Sex to be Aggravated Felony

The Eighth Circuit has determined that a Minnesota conviction for intentionally hiring or offering or agreeing to hire an individual who the defendant reasonably believed to be under the age of 16 years but at least 13 years to engage in sexual penetration or sexual contact is a sexual abuse of a minor aggravated felony.

The full text of Aguilar-Sanchez v. Garland can be found here:

http://media.ca8.uscourts.gov/opndir/23/12/223598P.pdf

Eighth Circuit Finds that Arizona Kidnapping is Crime of Violence

The Eighth Circuit has concluded that an Arizona kidnapping conviction qualifies as a crime of violence because it requires the use of force against the victim (unless the victim is a minor or incompetent).

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

http://media.ca8.uscourts.gov/opndir/23/11/231077P.pdf

Eighth Circuit Rejects "Guatemalan Children who are Witnesses to Gang Crime” as a PSG

The Eighth Circuit has rejected "Guatemalan children who are witnesses to gang crime” as a particular social group for asylum purposes. “The BIA rejected this proposed social group for lack of particularity because the term ‘children’ is ‘vague and amorphous.’ Indeed, ‘children’ could mean minor children of Guatemalan nationals, or it could mean individuals of any age who were born of Guatemalan parents. If Pacheco-Mota intended the former definition, he does not fall within its scope—he was eighteen at the time of his first hearing before the IJ. If Pacheco-Mota intended the latter definition—any person of any age who is the child of Guatemalan parents—it is far too amorphous and overbroad to satisfy the particularity requirement. Pacheco-Mota’s proposed social group also fails for lack of social distinction. If we grant Pacheco-Mota the benefit of the broader definition of ‘children,’ the proposed social group is, in effect, all Guatemalan ‘witnesses to gang crime.’ Pacheco-Mota did not introduce evidence establishing that Guatemalan society ‘in general perceives, considers, or recognizes persons sharing the particular characteristic’ of gang crime witnesses as a distinct group.”

The full text of Pachecho-Mota v. Garland can be found here: http://media.ca8.uscourts.gov/opndir/23/10/223651P.pdf