Fourth Circuit Vacates BIA's Reversal of CAT Relief for Improper De Novo Review

The Fourth Circuit, on remand from the Supreme Court, has granted a Jamaican petitioner's amended petition for review challenging the BIA's reversal of an immigration judge's grant of deferral of removal under the Convention Against Torture. The petitioner feared torture at the hands of a Jamaican drug lord who had allegedly ordered the killing of two of his cousins, with the acquiescence of local police.

Addressing threshold issues left open by the Supreme Court's decision in Riley v. Bondi, the Court permitted the petitioner to amend his petition to include his original removal order, curing any jurisdictional defect. On the merits, the Court held that the BIA had improperly reweighed the evidence and substituted its own factual findings for the immigration judge's, rather than applying the deferential clear-error standard required for review of CAT determinations. The Court vacated the BIA's decision and remanded for the agency to reconsider under the correct standard.

The full text of Riley v. Blanche can be found here: https://www.ca4.uscourts.gov/opinions/221609.P.pdf

Fourth Circuit Remands for Proper Application of Particularly Serious Crime Test Despite Incredible Testimony

The Fourth Circuit has granted in part a petition for review filed by a Salvadoran asylum applicant whose claims of persecution by a transnational cartel were found not credible by the immigration judge. The applicant was also found statutorily barred from asylum and withholding of removal based on a Virginia conviction for assault and battery against a family member, which the judge deemed a particularly serious crime.

The Court upheld the adverse credibility determination and the denial of CAT relief, agreeing that the applicant's account of his encounters with the cartel was properly found implausible and uncorroborated. However, the Court held that the immigration judge failed to apply the required two-step test for the particularly serious crime bar, evaluating the elements of the offense only after describing its underlying facts rather than before. The Court remanded for the agency to properly apply its own precedent.

The full text of Guevara Martinez v. Blanche can be found here: https://www.ca4.uscourts.gov/opinions/251429.P.pdf

Fourth Circuit Holds Virginia Embezzlement Is Not Categorically a Crime of Fraud or Deceit

The Fourth Circuit has granted a petition for review filed by a Honduran lawful permanent resident found removable based on a Virginia embezzlement conviction that the agency classified as an aggravated felony involving fraud or deceit.

Applying the categorical approach, the Court held that Virginia's embezzlement statute does not require any fraudulent or deceitful conduct by its elements, since a person can embezzle openly, without concealment or misrepresentation. The Court rejected the government's reliance on prior dicta suggesting embezzlement generally involves dishonesty, explaining that Virginia's statute criminalizes only the wrongful taking of property already in the defendant's possession. The Court vacated the removal order and remanded to the agency.

The full text of Ramos v. Blanche can be found here: https://www.ca4.uscourts.gov/opinions/252037.P.pdf

Fourth Circuit Remands Salvadoran Women PSG Claim

The Fourth Circuit has granted in part a petition for review filed by a Salvadoran mother and her minor daughter. The lead petitioner fled El Salvador after her father threatened her following her public accusations that he had orchestrated her mother’s murder.

The Court found that the BIA abused its discretion by refusing to review the proposed particular social group of Salvadoran women on the ground that it had been raised for the first time on appeal. The record showed that the group had been raised before, and decided by, the Immigration Judge. The Court denied the petition as to the remaining political opinion, particular social group, and CAT claims, but vacated and remanded on the Salvadoran women PSG.

The full text of Alvarado-Paz v. Blanche can be found here: https://www.ca4.uscourts.gov/opinions/251119.P.pdf

Fourth Circuit Finds New Jersey Child Sexual Abuse Material Offense Is a Crime of Child Abuse

The Fourth Circuit has denied in part and dismissed in part a petition for review filed by a Bangladeshi native and Canadian citizen who was found removable based on a New Jersey conviction involving child sexual abuse material. The respondent had pleaded guilty to knowingly storing or maintaining twenty-five or more items depicting the sexual exploitation or abuse of a child using a file-sharing program that made the material available for searching or copying by other computers.

The Court held that the conviction categorically qualifies as a crime of child abuse under the INA. The Court focused on the version of the New Jersey statute in effect at the time of the criminal conduct, rather than a later amended version, and found that storing child sexual abuse material on a searchable file-sharing program creates a reasonable probability of harm to the children depicted. The Court also dismissed the challenge to the discretionary denial of cancellation of removal and adjustment of status for lack of jurisdiction.

The full text of Uddin v. Blanche can be found here: https://www.ca4.uscourts.gov/opinions/241067.P.pdf

Fourth Circuit Finds Denial of Continuance Violated Statutory Right to Counsel

The Fourth Circuit has granted a petition for review filed by a Honduran asylum applicant whose attorney withdrew shortly before key deadlines in her removal proceedings. After the withdrawal, the Immigration Judge denied her request for more time and required her to proceed without counsel.

The Court held that the denial of a continuance violated the respondent’s statutory right to counsel under 8 USC 1229a(b)(4)(A). The Court found that the BIA failed to account for the practical effect of the intervening document deadline when evaluating how much time the respondent had to secure new counsel. The Court vacated the removal order and remanded for the BIA to address prejudice in the first instance.

The full text of Rodriguez-Solis v. Blanche can be found here: https://www.ca4.uscourts.gov/opinions/241937.P.pdf

Fourth Circuit Finds Matter of K- Inapplicable in Relief Context

The Fourth Circuit has determined that the procedural requirements of Matter of K- which relate to admissions to the elements of certain types of crimes - is inapplicable in the relief from removal context. Thus, the agency was not required to comply with K- before finding that an individual who admitted to using and selling drugs lacked good moral character and was ineligible for cancellation of removal. The Court also noted that the concerns of K- did not apply when the non-citizen was represented by counsel and providing the admission under oath.

The full text of Diaz v. Blanche can be found here: https://www.ca4.uscourts.gov/opinions/241062.P.pdf

Fourth Circuit Finds that NC Prayer for Judgment Continued is Conviction

The Fourth Circuit has determined that a North Carolina prayer for judgment continued - following completion of court-directed community service - is a conviction for immigration purposes.

The full text of Gardner v. Blanche can be found here: https://www.ca4.uscourts.gov/opinions/241553.P.pdf

Fourth Circuit Rules that Federal Court has Jurisdiction over Question of Law Related to Discretionary Application

The Fourth Circuit has determined that a federal district court has jurisdiction over a purely legal question related to statutory eligibility for asylum for the beneficiary of an I-730, even though ultimately, USCIS has discretion whether to grant the I-730. In this case, the legal question was whether the asylee spouse could qualify for asylum through the I-730 process when she was subject to a reinstated removal order.

The full text of Ortez Reyes v. USCIS can be found here: https://www.ca4.uscourts.gov/opinions/251391.P.pdf

Fourth Circuit Finds that Father's Signature on Birth Certificate does not Establish Paternity by Legitimation

The Fourth Circuit has determined that a father’s signature on a Salvadoran birth certificate does not prove that the child’s paternity was established through legitimation. Thus, the child derived citizenship when his mother naturalized.

The full text of Lopez v. Bondi can be found here: https://www.ca4.uscourts.gov/opinions/241208.P.pdf

Fourth Circuit Remands Asylum Claim based on Gang Persecution

The Fourth Circuit has remanded a Honduran applicant’s asylum claim, finding that the agency erroneously relied on evidence of token actions by law enforcement to find that the government was willing to control the persecutors.

The full text of Ramos Marquez v. Bondi can be found here: https://www.govinfo.gov/content/pkg/USCOURTS-ca4-24-01842/pdf/USCOURTS-ca4-24-01842-0.pdf

Fourth Circuit Remands Asylum Claim because Agency Failed to Engage with Country Conditions Evidence

The Fourth Circuit has remanded a Honduran woman’s asylum case, finding that the agency’s “wholesale failure to fully consider . . . country-conditions evidence” was an abuse of discretion. The facts of the case were centered on stalking and other serious harm perpetrated by a man that the applicant refused to have sexual relations with. The majority opinion took aim at the dissent’s trivialization of this harm.

“Second, we do not hold—as the dissent’s parade of sister-circuit straw men might suggest—that a noncitizen may rely solely on country-conditions evidence to support a claim of persecution or torture. That is of course not the law, but it is also decidedly not what happened here. In addition to the country-conditions reports, Alfaro-Zelaya presented evidence that she was subjected to violent threats from a man who relentlessly pursued her after she had made her rejection of his advances unmistakably clear. To dismiss this as a ‘fractured personal relationship’ with a lustful man, as the dissent would have it, trivializes conduct that is, in truth, abusive and menacing. At the end of the day, our colleague in dissent may disagree on matters of degree, but the principle remains immutable: no means no. And unless every encounter between a man and a woman in Honduras culminates with the man forcing her into a car at gunpoint, stalking her at her workplace, and threatening to dismember her child should she refuse to have sex with him, the dreaded breach in the floodgates the dissent foresees will remain securely shut.”

The full text of Alfaro-Zelaya v. Bondi can be found here:

https://www.ca4.uscourts.gov/opinions/232069.P.pdf

The Fourth Circuit Confronts Whether False Testimony Bar to GMC Applies to Concealments or Omissions

The Fourth has determined that the applicability of the false testimony good moral character bar to omissions or concealments is a mixed question of fact and law that a federal court maintains jurisdiction to review. “Martinez-Martinez argues that the Board: (1) improperly reviewed the IJ’s legal determination that his omission of aliases constituted testimony under § 1101(f)(6) for clear error, and (2) committed legal error by applying the false testimony bar based on an omission, rather than an oral statement. We agree the Board applied an incorrect standard of review and will therefore grant the petition for review and remand to the Board to apply the correct standard. Consequently, we need not reach Martinez-Martinez’s argument about the application of the false testimony bar. “

“[T}he application of the false testimony bar is a legal determination necessitating de novo review. Thus, the Board improperly reviewed the legal question of whether Martinez-Martinez’s testimony as to aliases constituted “testimony” under the false testimony bar for clear error. This error alone is sufficient to grant the petition for review and remand to the Board for application of the proper standard.”

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

https://www.ca4.uscourts.gov/opinions/241464.P.pdf

Fourth Circuit Affirms that VA Receipt of Stolen Property is a CIMT

The Fourth Circuit has affirmed that a Virginia conviction for receipt of stolen property is a crime involving moral turpitude. “What makes Virginia’s receipt offense morally culpable is the receiver’s knowledge that the property he possesses was stolen from its rightful owner and his dishonest intent to continue acting adversely to the owner’s property interest.”

The full text of Solis-Flores v. Bondi can be found here: https://www.ca4.uscourts.gov/opinions/221147A.P.pdf

Fourth Circuit Addresses What Constitutes "Material" Support to a Terrorist Organization

The Fourth Circuit has rejected the Board of Immigration Appeals’ determination that even de minimis support of a terrorist organization disqualifies a non-citizen from asylum, finding that the agency’s interpretation reads the requirement that support be “material” out of the statute. Rather, the Court determined that “material support” is support that is sufficiently substantial standing alone to help the terrorist organization accomplish its terrorist activities. Thus, a captive laborer who cooked meals using food and supplies purchased by the organization did not provide the organization with material support.

The full text of Ozurumba v. Bondi can be found here: https://www.ca4.uscourts.gov/opinions/242070.P.pdf

Fourth Circuit Remands CAT Claim

The Fourth Circuit has remanded an application for protection under the Convention Against Torture filed by a disabled and mentally ill black Guyanese man, finding the agency “ignored relevant evidence relating to McDougall’s claims based on race, physical disability, and criminal-deportee status.”

The full text of McDougall v. Bondi can be found here:

https://www.ca4.uscourts.gov/opinions/231722.P.pdf

Fourth Circuit Addresses Standards for Ineffective Assistance of Counsel

The Fourth Circuit has determined that whether an attorney has rendered ineffective assistance of counsel requires an evaluation of whether counsel was “reasonably competent.” Noting that the petitioner’s counsel at trial proffered a particular social group that was “dead on arrival” under Fourth Circuit precedent, and failed to proffer two applicable and cognizable social groups identified by later counsel, the court determined that trial counsel did not act in a reasonably competent manner.

The full text of Guandique-de Romero v. Bondi can be found here:

https://www.ca4.uscourts.gov/opinions/241154.P.pdf

Fourth Circuit Remands for Further Analysis of PSG

The Fourth Circuit has remanded an asylum appeal, finding inadequate the agency’s determination that the particular social group was circular because it referenced the persecution suffered.

“Here, the BIA found that Guardado’s first PSG was impermissibly defined in a circular fashion by the harm to its constituent members. While we agree that a PSG cannot be defined exclusively by the harm its members face (i.e., the anti-circularity requirement), we join a growing consensus of our sister circuits in recognizing that the BIA cannot simply claim circularity in a perfunctory manner.” In other words, the BIA cannot make a conclusory judgment that a PSG is circular per se. In place of such a superficial quick look at the words used,’ the BIA must perform a substantive analysis: it must determine what underlying characteristics account for the fear and vulnerability’ of the group, and whether the society views those characteristics as distinct.

This substantive analysis is necessary for a host of reasons. First, although the cognizability of a proposed PSG presents a question of law, this question is analyzed through a fact-based inquiry made on a case-by-case basis. Second (and relatedly), whether a group exists independently of the harm alleged is not always so apparent and depends on the facts of the particular case. Third, we see no logic or reason behind the assertion that abuse cannot do double duty, both helping to define the group, and providing the basis for a finding of persecution. And finally, even if a PSG is largely defined by persecution, a group that exists independent of persecution is simply a group that shares an immutable characteristic other than the persecution it suffers.”

The full text of Hernandez Guarado v. Bondi can be found here:

https://www.ca4.uscourts.gov/opinions/232286.P.pdf

Fourth Circuit Construes Firearms Trafficking Aggravated Felony Ground

The Fourth Circuit has determined that the illicit trafficking in firearms aggravated felony ground requires “unlawful trading or dealing in firearms.”

The full text of Alvarez Ronquillo v. Bondi can be found here:

https://www.ca4.uscourts.gov/opinions/241324.p.pdf

Fourth Circuit finds no Jurisdiction to Review USCIS Adjudication Withholding Policy

The Fourth Circuit has determined that federal courts lack jurisdiction to review USCIS’s policy of withholding adjudication of adjustment of status applications when there is a visa retrogression. “Here, USCIS is not only granted discretion with respect to the ultimate decision on whether to grant adjustment of status. USCIS also has the discretion to “prescribe” the regulations that guide its exercise of the discretionary authority.”

The full text of Kale v. Alfonso-Royals can be found here:

https://www.ca4.uscourts.gov/opinions/231799.P.pdf