Viewing entries tagged
Fourth Circuit

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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

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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

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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

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Fourth Circuit Finds that Federal Conviction for Inducing a Minor to Engage in Illegal Sexual Activity is Aggravated Felony and Crime of Child Abuse

The Fourth Circuit has determined that a federal conviction for inducing a minor to engage in illegal sexual activity is a sexual abuse of a minor aggravated felony and a crime of child abuse. In so holding, the court determined that “Esquivel-Quintana’s holding is narrow, applying only to a strict liability statute, and that it does not inform the broader question of whether an offense with a criminal mens rea constitutes sexual abuse of a minor.”

The full text of Hsieh v. Bondi can be found here: https://www.ca4.uscourts.gov/opinions/241013.P.pdf

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Fourth Circuit Concludes that MA Conviction for Unarmed Assault with Intent to Rob or Steal is an Aggravated Felony

The Fourth Circuit has determined that a Massachusetts conviction for unarmed assault with intent to rob or steal is an attempted theft-related aggravated felony. The court rejected the argument that a conviction could be obtained when a defendant stole property with the victim’s fraudulently obtained consent. “The [jury] instruction states that the taking of property must be against the victim’s will for a defendant to be convicted of robbery. In other words, a person can’t commit robbery in Massachusetts through fraud or embezzlement.” “We find that the force element of Massachusetts’s unarmed assault statute excludes the possibility that a person may be convicted of that offense for a taking committed with the victim’s consent.”'

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

https://www.ca4.uscourts.gov/opinions/232237.P.pdf

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Fourth Circuit Clarifies Standards for Reopening Based on Pending I-130

The Fourth Circuit has clarified that a motion to reopen to seek a marriage-based adjustment of status “does not require that the petitioner establish by clear and convincing evidence that his marriage was in fact bona fide; it requires only that the respondent establish a ‘strong likelihood’ that he would be able to demonstrate that his marriage was bona fide should the BIA grant his motion to reopen.”

The full text of Hussen v. Bondi can be found here: https://www.ca4.uscourts.gov/opinions/231047.P.pdf

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Fourth Circuit Finds that VA Petit Larceny is CIMT

The Fourth Circuit has determined that a Virginia conviction petit larceny qualifies as a crime involving moral turpitude (CIMT). “Chavez latches onto the ‘reasonable basis’ language to argue that Virginia will convict a defendant who honestly but unreasonably believed the taken property was abandoned.” The court concluded that “none of the cases Chavez cites change that larceny requires an intent to permanently deprive and that this criminal intent may be negated by a good faith claim of right.”

The court also addressed the impact of the Supreme Court’s decision in Loper Bright on the definition of a CIMT. “Loper Bright doesn’t wipe away the results of our prior decisions deferring to the Board’s reasonable interpretations of what constitutes a crime involving moral turpitude. But it does mean that any Board guidance serves only as persuasive authority.” With that in mind, the Court determined that “the Board’s interpretation in Diaz Lizarraga on the moral turpitude of theft ‘is entitled to respect.’”

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

https://www.ca4.uscourts.gov/opinions/231379.P.pdf

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Fourth Circuit Reverses BIA Denial of CAT to Honduran Man Attacked by Gang Members

The Fourth Circuit has reversed the Board of Immigration Appeals’ reversal of an Immigration Judge’s grant of protection under the Convention Against Torture. The applicant was shot by gang members and his family members threatened and attacked by gang members. During one of these incidents, the gang members were accompanied by a man in a military uniform.

The full text of Funez-Ortiz v. McHenry can be found here: https://www.ca4.uscourts.gov/opinions/232290.P.pdf

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Fourth Circuit Confirms AG's Authority to Appoint Temporary Board Members

The Fourth Circuit has confirmed that the Attorney General has an independent statutory authority to appoint (and renew the appointment of) temporary members of the Board of Immigration Appeals. This authority is not affected by the regulation prescribing the authority of the Director of the Executive Office for Immigration Review to appoint temporary Board members. Finally, the Fourth Circuit construed that regulation as permitting renewable appointments by the Director.

The full text of Salomon-Guillen v. Garland can be found here: https://www.ca4.uscourts.gov/opinions/231723.P.pdf

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Fourth Circuit Analyzes Competing Standards for Reopening

The Fourth Circuit has issued a decision analyzing the competing standards for reopening presented by Matter of L-O-G- (reasonable likelihood of success upon reopening) and Matter of Coelho (new evidence would likely change the outcome). The Court concluded that the Coelho standard only applies in cases in which there are special, adverse considerations, while L-O-G- presents a more generally applicable standard for reopening. The L-O-G- standard, for example, is available when the movant is seeking previously unavailable relief.

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

https://www.ca4.uscourts.gov/opinions/221368.P.pdf

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Fourth Circuit Finds no Jurisdiction to Review District Court Remand Order

The Fourth Circuit has determined that it has no jurisdiction to review an order from the District Court remanding a delayed naturalization application to the agency. “Simply stating the standard may be enough to explain why it is not met here. The district court’s remand order did not ‘end the litigation on the merits’ of Dubon’s naturalization petition. It did the opposite: It declined to address the merits at all, and instead provided for further adjudication of the merits before the agency. When the district court issued its order, in other words, a determination on the crucial issue in this litigation – Dubon’s eligibility to naturalize – was yet to come. And because that question remained ‘open’ and ‘unfinished,’ the district court’s § 1447(b) remand was not a ‘final decision’ as that term generally is defined under § 1291.”

The full text of Dubon v. Jaddou can be found here: https://www.ca4.uscourts.gov/opinions/222280.P.pdf

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Fourth Circuit Remands Cancellation of Removal Application

The Fourth Circuit has reviewed the agency’s hardship determination in a cancellation of removal application and remanded the proceedings because it was not clear that the Immigration Judge had considered a treating therapist’s predication that removal of the applicant would increase the likelihood that her daughter would engage in self harm.

The full text of Garcia Cortes v. Garland can be found here: https://www.ca4.uscourts.gov/opinions/221930.p.pdf

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Fourth Circuit finds that VA Solicitation of Prostitution Conviction is CIMT

The Fourth Circuit has affirmed that a Virginia conviction for solicitation of prostitution is a crime involving moral turpitude. The Court rejected the argument that societal attitudes toward prostitution had sufficiently changed such that solicitation of prostitution was no longer base conduct.

The full text of Ortega-Cordova v. Garland can be found here: https://www.ca4.uscourts.gov/opinions/221700.P.pdf

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Fourth Circuit Finds that Inadmissible and Deportable LPR was Eligible for Naturalization

The Fourth Circuit has determined that a lawful permanent resident who became inadmissible and deportable by virtue of a conviction entered after he obtained his residency is stil eligible to naturalize. The court examined the regulation at 8 CFR § 316.2(b), focusing ont he requirement that a permanent resident be lawfully admitted to the United States during any subsequent reentry.  The Court concluded that simply because the applicant was inadmissible due to his conviction at the time of his last entry to the United States, that did not change that he was lawfully admitted as a permanent resident when he reentered the United States, as it was undisputed that he continued to enjoy his permanent resident status at the time of his reentry.  

The full text of Azumah v. USCIS can be found here: https://www.ca4.uscourts.gov/opinions/222175.P.pdf

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Fourth Circuit Remands Cancellation Case due to Agency's Failure to Consider Hardship Evidence

The Fourth Circuit has remanded a petition for review of a denied cancellation of removal case, in which it determined that the agency failed to adequately address a therapist’s professional opinion that removal of the applicant would increase the likelihood that her daughter would engage in self harm.

The full text of Garcia Cortes v. Garland can be found here:
https://www.ca4.uscourts.gov/opinions/221930.P.pdf

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Fourth Circuit Finds that DC Conviction for Attempted Second Degree Child Sexual Abuse is Deportable Offense

The Fourth Circuit has determined that a conviction in the District of Columbia for attempted second degree child sexual abuse is a crime of child abuse. The Court declined to find that a conviction must include as an element knowledge of the victim’s age in order to qualify as a crime of child abuse.

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

https://www.ca4.uscourts.gov/opinions/231676.P.pdf

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Fourth Circuit Denies As Applied Challenge to Detention Scheme

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:

https://www.ca4.uscourts.gov/opinions/227365.P.pdf

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