The Tenth Circuit has upheld an Immigration Judge’s decision to only permit a non-citizen 15 days to complete and file an asylum application.
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Tenth Circuit
The Tenth Circuit has determined that the Board of Immigration Appeals improperly rejected a notice of appeal where the attorney did not sign the certificate of service line because the notice of appeal was submitted through ECAS, and thus, automatically served on Homeland Security.
The full text of Cortez v. Bondi can be found here:
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111277109.pdf
The Tenth Circuit has rejected the agency’s analysis of family-based particular social groups. “Accordingly, we hold the BIA’s stated rule for family-based nexus claims is contrary to the INA because its categorical formulation runs counter to the INA’s ‘at least one central reason’ standard. But we find no error in the BIA’s ‘means-ends’ framing in its discussion of the INA’s motive requirement.”
“The BIA’s stated nexus standard improperly disallows mixed-motive claims. This unlawful standard governs a dispositive issue and appears in a published three-judge BIA opinion, so it serves as precedent in all agency-level proceedings involving the same issue.”
“When applied, this unlawful standard improperly requires the agency to ignore evidence in the asylum applicant’s favor. According to its plain terms, once the agency determines a persecutor is targeting members of a certain family as a means of achieving some other ultimate goal unrelated to the protected ground, the analysis stops, and family membership must then be incidental or subordinate to that other ultimate goal and therefore not one central reason for the harm—full stop. The BIA’s erroneous legal standard thereby deems some facts legally irrelevant: it requires the agency to disregard other possible motives as soon as the antecedent (“if”) condition is satisfied. As the C.R. family put it, under this new rule, ‘any record evidence establishing that family was at least one central reason for harm [i]s categorically insufficient for asylum seekers to meet their burden of proof in establishing nexus’ once an unprotected-ground related motive is found. We have rejected that analytical shortcut, as motives that are unrelated to protected grounds do not negate possible motives related to protected grounds.”
The full text of O.C.V. v. Bondi can be found here:
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111288784.pdf
The Tenth Circuit has issued a decision addressing a visa denial to a worship leader, and how the doctrine of consular nonreviewability intersects with the First Amendment rights of American citizens to hire a religious worker. First, the court determined that the Religious Freedom Restoration Act’s (RFRA) cause of action does not expressly authorize federal court of review of consular officers’ visa decisions. The court then concluded that the consulate has provided a bona fide and legitimate reason for denying the applicant’s visa by citing the fraud and misrepresentation inadmissibility statute. This citation was also supported by evidence in the record that the applicant had received honoraria while in the United States on a tourist visa. Finally, the plaintiff had not plausibly alleged bad faith because did not allege that the officer did not in good faith believe the information that he had.
The full text of Calvary Albuquerque v. Rubio can be found here: https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111230435.pdf
The Tenth Circuit has determined that if a non-citizen is granted voluntary departure, and wishes to file a motion to reopen, he must do so by the 60th day of his voluntary departure period, even if that day falls on a weekend.
The full text of Velazquez v. Garland can be found here:
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110915861.pdf
An amended opinion can be found here: https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110969149.pdf
The Tenth Circuit, in assuming that DHS violated certain regulations during their apprehension of a non-citizen, determined that the non-citizen did not suffer any prejudice by being required to litigate his adjustment of status application before an immigration judge rather than before U.S. Citizenship and Immigration Services.
“Mr. Aguayo emphasizes adjustment hearings in immigration court are procedurally different from non-adversarial USCIS interviews because a petitioner appears in front of the IJ ‘in a pastel jumpsuit’ and is ‘cross-examined in an adversarial courtroom by trained government lawyers, while in confinement apart from family.’ As a general matter, we are sympathetic to Mr. Aguayo’s contention. But whether the adversarial nature of immigration court potentially affected or actually affected the outcome of removal proceedings is not self-evident. As the government points out, Mr. Aguayo had ‘a full opportunity to present his case for adjustment of status before the IJ,’ and he does not argue ‘he would have submitted more or different evidence to USCIS than he presented to the IJ.’ The BIA correctly determined Mr. Aguayo ‘speculates’ but ‘provides no evidence that USCIS would have approved his adjustment application.’”
The full text of Aguayo v. Garland can be found here:
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110905064.pdf
The Tenth Circuit has reaffirmed that a petition for review (PFR) challenging a reinstatement order is timely if it is filed within 30 days of the Board of Immigration Appeals’ decision at the end of the ensuing withholding/CAT only proceeding. The PFR need be filed within 30 days of ICE’s issuance of the reinstatement order.
The full text of Arostegui-Maldonado v. Garland can be found here:
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110897188.pdf
The Tenth Circuit has determined that a federal district court has jurisdiction to review USCIS’s decision to terminate refugee status.
The full text of Mukantagara v. DHS can be found here:
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110860407.pdf
The Tenth Circuit has determined that the reinstatement provision at 8 USC 1231(a)(5) prevents reconsideration of a removal order. The court also found that a prior reinstatement of the order is sufficient to trigger this bar, even if the order has not been again reinstated since the petitioner’s most recent illegal entry.
The full text of Zapata-Chacon v. Garland can be found here:
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110758299.pdf
The Tenth Circuit has determined that the issuance of a final removal order does not trigger the stop-time rule for cancellation of removal.
The full text of Estrada-Cardona can be found here: https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110725741.pdf
The Tenth Circuit has determined that “the acts of violence are so widespread that any reasonable adjudicator would find a pattern or practice of persecution against transgender women in Honduras.”
The full text of Gonzalez Aguilar v. Garland can be found here:
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110663824.pdf
The Tenth Circuit has affirmed that the agency lacks authority to reopen a reinstated removal order. In this case, the petitioner was a lawful permanent resident who was ordered removed (and physically removed) due to a felony animal cruelty conviction. After his removal, a state court vacated the conviction due to ineffective assistance of counsel, and reinstated the original charges. The petitioner sought reopening of his removal order, which the Immigration Judge denied because the criminal charges were still reinstated and remained pending. The petitioner then unlawfully reentered the United States, and the Department of Homeland Security reinstated his removal order. Subsequently, he pled to misdemeanor animal cruelty, which was not a deportable offense, and filed a second motion to reopen, which the agency declined to grant because his removal order had already been reinstated. The Tenth Circuit agreed that the reinstatement barred reopening, and that the petitioner had forfeited his right to reopening by reentering illegally. Moreover, the court declined to find a “gross miscarriage of justice” exception to the bar to reopening reinstated orders, and further opined that even if such an exception existed, it would not apply to this case, because the petitioner’s conviction was vacated after he was removed. Finally, the court declined to extend nunc pro tunc relief with respect to the first motion to reopen, which was filed before the petitioner reentered the United States, finding that nunc pro tunc relief is an equitable remedy, which was barred by the petitioner’s “unclean hands.”
The full text of Tarango-Delgado v. Garland can be found here:
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110613259.pdf
The Tenth Circuit, while assuming that family could be a valid particular social group, rejected an asylum claim where the “gang was threatening family members as a means to achieve an end that was unrelated to a protected ground.” The court recognized its decision was contrary to Fourth Circuit precedent involving a similar fact pattern.
The full text of Orellana Recinas v. Garland can be found here:
https://www.ca10.uscourts.gov/opinions/19/19-9596.pdf
The Tenth Circuit has affirmed a removal order against a student visa holder who failed to maintain a full course of study while he was incarcerated pending trial, despite the fact that he was subsequently acquitted at trial.
The full text of Awuku-Asare v. Garland can be found here:
The Tenth Circuit has determined that a Utah terroristic threats conviction is a crime involving moral turpitude. “We hold that recklessly threatening substantial property damage with the intent of interrupting public access to a portion of a building is a CIMT.” The court also affirmed Matter of G-G-S- and determined that the agency need not consider a petitioner’s mental health when determining whether the petitioner has been convicted of a particularly serious crime.
The full text of the extremely sad case of Birhanu v. Wilkinson can be found here:
The Tenth Circuit has reversed the agency’s determination that a Ghanian asylum seeker could safely relocate within Ghana to escape harm from a rival tribe. “The government has offered no evidence that Atwode are not present in other Ghanaian cities to which it would have Petitioner relocate. And more importantly, the government has no evidence linking the Atwode’s ability to track and threaten Petitioner in Accra with the ‘presence’ of Atwode migrants in that city. The government has thus failed to satisfy its burden to show that Petitioner’s experience in Accra––where he apparently was tracked, threatened, and shot at by Atwode as he moved from address to address––could not be duplicated in other parts of Ghana.”
The full text of Addo v. Barr can be found here:
The Tenth Circuit has rejected an attempt to establish jurisdiction over the denial of a cancellation of removal application based on insufficient hardship. The court acknowledged the Supreme Court’s recent decision in Guerrero-Lasprilla but found that it still did not permit the court to reweigh the hardship evidence.
The full text of Galeano-Romero v. Barr can be found here:
The Tenth Circuit has determined that a Colorado statute criminalizing possession of a controlled substance is more overbroad and indivisible with respect to the identity of the controlled substance. Instead, the court found that the different schedules of drugs are elements, but the individual substances listed on any given schedule are merely alternative means.
The full text of Johnson v. Barr can be found here:
The Tenth Circuit has ruled that the regulatory departure bar does not prevent the Immigration Judge from exercising his sua sponte authority to reopen proceedings. The departure bar applies only to a motion to reopen filed by one of the parties, which differs from an Immigration Judge’s authority to sua sponte reopen proceedings. ‘Thus, the IJ may move sua sponte to reopen removal proceedings even when either or both the ninety-day time bar or the post-departure bar would defeat an alien’s ‘motion to reopen’.”
The full text of Reyes-Vargas v. Barr can be found here:
The Tenth Circuit has rejected a two-step stop time rule for cancellation of removal. Service of a Notice to Appear that lacks the time of the first removal hearing does not trigger the stop time rule, and the rule is still not triggered when the Immigration Court issues a hearing notice that contains this information. “d. In our view, the stop-time rule is triggered by one complete notice to appear rather than a combination of documents.”
The full text of Banuelos-Galviz v. Barr can be found here:
https://www.ca10.uscourts.gov/opinions/19/19-9517.pdf