Eighth Circuit Affirms Denial of Request for 13th Continuance

In an unsurprising decision, the 8th Circuit affirmed an Immigration Judge's denial of an immigrant's 13th request for a continuance.  The Judge noted that the immigrant was not likely to succeed in his quest to have an I-130 filed by his daughter approved because the Department of Homeland Security had already determined that he had engaged in fraudulent marriage.  Such a finding would bar the approval of the I-130 filed by his daughter.  The 8th Circuit affirmed, finding no good cause for another continuance request.

The full text of Mogeni v. Holder can be found here: http://media.ca8.uscourts.gov/opndir/15/03/133597P.pdf

Second Circuit Defers to the BIA's Expanded Definition of a Crime of Child Abuse

The Second Circuit joined the Third Circuit in deferring to the Board of Immigration Appeals' expanded definition of a crime of child abuse, outlined in Matter of Soram.  In doing so, it widens the circuit split on this issue; the Tenth Circuit in Ibarra v. Holder found the expanded definition in Soram to be unreasonable.  Practitioners in other circuits should keep an eye for continuing development of this precedent, as the definition in Soram reaches most child neglect statutes, as well as child abuse statutes, and does confine the definition of a crime of child abuse to statutes which require actual physical or mental injury to a child.

The full text of Florez v. Holder can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/791c849d-8b12-4eaf-884f-f37fcb4cf885/3/doc/14-874_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/791c849d-8b12-4eaf-884f-f37fcb4cf885/3/hilite/

No Good Moral Character for Immigrant who Serves 7 Months for a Federal Conviction for Falsely Claiming to be a US Citizen

It's been a popular week for immigrants to argue that serving more than 180 days imprisonment for a crime that does not involve moral turpitude should not pose a statutory bar to establishing the good moral character required for cancellation of removal for non-lawful permanent residents.  It has also, unfortunately for the immigrants, been a popular week for circuit courts to disagree with them.

Similar the Fourth Circuit's decision earlier this week (http://www.sabrinadamast.com/journal/2015/3/4/no-good-moral-character-for-a-non-citizen-who-served-181-days-in-jail-for-illegal-entry), the Fifth Circuit determined that an immigrant who served 7 months for a federal conviction for falsely representing himself as a US citizen was statutorily barred from establishing good moral character.  

In addition, the Fifth Circuit joined the Seventh Circuit in affirming the BIA's interpretation of when an applicant must demonstrate good moral character for cancellation of removal.  The court disagreed with the petitioner's argument that the 10 years of good moral character, like the 10 years of continuous physical presence, ends with service of the Notice to Appear, and determined that instead, the good moral character period continues until the issuance of a final administrative decision on the cancellation application.  Thus, the petitioner's confinement, which occurred after service of the Notice to Appear, still occurred within the relevant good moral character period, barring him from cancellation of removal.

The full text of Rodriguez-Avalos v. Holder can be found here: http://www.ca5.uscourts.gov/opinions/pub/13/13-60736-CV0.pdf

Seventh Circuit Denies I-751; Judge Posner Dissents, Showing Sympathy to Immigrant, but Contempt for Immigration Attorneys

Normally, I enjoy a good Judge Posner decision.  He's empathetic and thoughtful - he recognizes the obstacles (language barriers, difficulty accessing foreign documents, etc.) that many of our clients have to overcome in their question for immigration status.  Last week, while his fellow judges denied a man's request to remove the conditions on his residence, obtained through marriage to a U.S. citizen who he ultimately divorced, Judge Posner again sided with the immigrant underdog, finding that the Immigration Judge should have given him a continuance to allow his former wife to testify about the bona fide nature of their marriage.  His thoughtful opinion recognized the difficulties of a commuter marriage, blending a new family, and tackling family finances.  I appreciated all of these remarks, as they accurately reflect what my clients often go through.

What I didn't appreciate was Judge Posner's categorical qualification of the private immigration bar as "weak."  Like any other group of attorneys, we have our good and our bad, but I'd match many of my colleagues against any adversary on any day.  I respect Judge Posner, and I hope in the future, he shows us a little more respect.

The full text of Bouras v. Holder can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D03-04/C:14-2179:J:Hamilton:aut:T:fnOp:N:1511234:S:0

No Good Moral Character for a Non-Citizen who Served 181 Days in Jail for Illegal Entry

This week, the Fourth Circuit issued a decision addressing the following question: Could Congress have intended that individuals seeking cancellation of removal for non-permanent residents, who very frequently enter the United States illegally and thus, could be convicted of illegal entry, be barred from this form of immigration relief by virtue of time served on an illegal entry conviction?  The answer: yes.  An individual who serves 181 days in prison for an illegal entry conviction is statutorily barred from showing good moral character, regardless of the underlying conviction.

The full text of Tiscareno-Garcia v. Holder can be found here: http://www.ca4.uscourts.gov/Opinions/Published/132459.P.pdf

The Tragic Consequences of a Frivolous Asylum Application

This week, the 11th Circuit issued a decision regarding a frivolous asylum application.  On its face, the decision is very fact-specific, and perhaps not terrifically useful for analogizing to other cases.  But there were two things that struck me while I was reading the decision.

1) During her proceedings, the petitioner requested to see the original version of a government-produced document, but was only provided with a photocopy.  The 11th Circuit saw no error here, stating that there is no requirement that the Government turn over original documents.  I thought about the many times that I've heard Immigration Judges require that an immigrant provide their original birth certificate, passport, medical records, etc. in order to allow the Government to test them for fraud.  The double standard seems unfair - if the Government is entitled to an immigrant's original documents to verify their authenticity, why isn't the immigrant entitled to the same process? Which perhaps harkens to a larger issue in the law that governs the admission of evidence in Immigration Court - why are public or government records sometimes considered inherently reliable?

2) Perhaps the more tangible thought I had while reading the decision was about the potentially dire consequences of hiring a non-attorney to complete the asylum application.  Frivolous asylum applications are lifetime bars to immigration benefits.  In this cost, it cost the woman her ability to apply for permanent residence through her U.S.-citizen husband.  It's a reminder of how important it is to hire a qualified attorney to assist with an immigration process, and how important it is that the legal community educate our wider communities about immigration fraud.

The full text of Indrawati v. Attorney General can be found here: http://media.ca11.uscourts.gov/opinions/pub/files/201312071.pdf

Ninth Circuit Addresses "Imputed Whistleblowing" as a Ground for Asylum

Hayk and Nadezhda Khudaverdyan applied for asylum from Armenia.  The Armenian military police detained, beat, and threatened Hayk after he was seen talking to a reporter following a personal confrontation with the city’s military police chief. The Board of Immigration Appeals (“BIA”) held that, because Hayk failed to prove that he intended to expose corruption when he talked to the reporter, he did not demonstrate that he was persecuted because of his actual political opinion.  The Ninth Circuit reversed, finding that the BIA failed to address evidence in the record that Hayk was persecuted on account of an imputed political opinion, that is, because military police officials thought that he was talking to the reporter in an attempt to expose government corruption

 The Ninth Circuit noted that Hayk testified credibly that the chief of the investigative department accused him of trying to “dishonor the military police” and accused him of espionage after he was seen talking to a reporter for a political opposition newspaper.  

The full text of Khudaverdyan v. Holder can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/02/27/10-73346.pdf

Second Circuit Reverses Denial of a Continuance; Finds NY Penal Code 130.65 is not an Aggravated Felony

Flores, a native and citizen of Honduras, entered the United States without inspection in 1991.  He married a U.S. citizen and raised a family in the United States.  In 2009, he was convicted, pursuant to a jury verdict, of two counts of first‐degree sexual abuse in violation of N.Y. Penal 130.65.  After several continuances, he requested a further continuance to pursue adjustment of status under section 245(i) of the INA, in conjunction with a waiver of inadmissibility under INA § 212(h).  He also applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).  The Immigration Judge (IJ) denied his request for a continuance, and found him ineligible for adjustment of status because the priority date was not current on the 2001 petition filed by his sister, and the petition filed by U.S.-citizen wife hadn't been adjudicated yet.  The IJ further found that his sexual abuse conviction was a sexual abuse of a minor aggravated felony that precluded asylum eligibility, and particularly serious crime that precluded withholding of removal eligibility.  The IJ denied CAT protection on the merits.

On appeal, the Second Circuit determined that the IJ abused his discretion in denying Flores' request for a continuance because he did not evaluate if the petition filed by his wife was prima facie approvable.  Furthermore, the Board of Immigration Appeals erred in affirming the denial of the continuance based on its determination that Flores' conviction for an aggravated felony precluded him from applying for a 212(h) waiver.  The Second Circuit noted that even if his convictions qualified as aggravated felonies, because he had never been accorded lawful permanent residence, the convictions would pose no bar to a 212(h) waiver.

The Second Circuit additionally found that the IJ erred in his application of the modified categorical approach to determine that Flores was convicted of an aggravated felony.  Although the statute at issue was divisible as to some elements (i.e. whether the victim was a person under the age of 11, a person incapable of giving consent), all four prongs criminalized acts of "sexual contact" that could fall short of actual abuse.  Thus, it was improper for the IJ to consult the complaint to determine that Flores' conduct rose to the level of abuse.  Though the Second Circuit affirmed the IJ's determination that Flores' conviction was a particularly serious crime barring asylum and withholding, it still found that the improper use of the modified categorical approach could have a significant impact on the discretionary determination for adjustment of status, and thus, Flores was prejudiced by the IJ's determination.

Though the Second Circuit remanded the case for a proper analysis under the modified categorical approach, its analysis suggests that all four prongs of the statute may criminalize acts that do not rise to the level of abuse, and as such, may never qualify as a sexual abuse aggravated felony.  

The full text of Flores v. Holder can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/cf44b58b-7db5-432c-9649-42019c135a9c/5/doc/12-2406_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/cf44b58b-7db5-432c-9649-42019c135a9c/5/hilite/

Ninth Circuit Affirms the Denial of a Motion to Reopen based on Ineffective Assistance of Counsel

In Martinez-Hernandez v. Holder, the Ninth Circuit affirmed the Board of Immigration Appeals' denial of a motion to reopen based on ineffective assistance of counsel.  Martinez-Hernandez alleged that his prior counsel should have disputed an Immigration Judge's assertion that his criminal conviction barred him from applying for cancellation of removal for non-lawful permanent residents.  Although he had a lawful permanent resident mother and U.S.-citizen child, Martinez-Hernandez provided no evidence that either of them would suffer the requisite hardship to make him eligible for cancellation.  In affirming the Board's decisions, the Ninth Circuit noted that the existence of a qualifying relative is not enough to demonstrate that it is plausible that Martinez-Hernandez was eligible for the relief he sought, and thus, he could not establish any prejudice stemming from his prior counsel's actions.

The full text of the decision can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/02/24/11-70492.pdf

10th Circuit Weighs in on 212(h) Waivers

Another crimmigration victory -- the 10th Circuit has joined many other circuits to find that an individual convicted of an aggravated felony is only barred from seeking a 212(h) waiver if he entered the United States as an LPR.

For more information about this issue, check out my post on the Second Circuit's decision on this issue: http://www.sabrinadamast.com/journal/2015/1/8/second-circuit-weighs-in-on-212h-waivers-for-aggravated-felons

The full text of Medina-Rosales v. Holder can be found here: https://www.ca10.uscourts.gov/opinions/14/14-9541.pdf

Can simple possession of a controlled substance be a drug trafficking offense? The Fifth Circuit says no!

In a federal criminal sentencing case, the Fifth Circuit addressed Florida Statute Annotated section 893.125(1)(f).  it noted that this statute, which includes a variety of drug-related offenses, criminalizes mere possession of a controlled substance, and as such, is not categorically a drug trafficking crime.  The court indicated that the statute is divisible, but since no judicially cognizable documents indicated that the petitioner was convicted of trafficking activities, the sentencing enhancement for a drug trafficking crime was inappropriate.  Drug trafficking convictions can have severe immigration consequences, and this decision may assist attorneys arguing that these consequences do not attach to a conviction under this statute.

The full text of US v. Sarabia-Martinez can be found here: http://www.ca5.uscourts.gov/opinions/pub/14/14-50064-CR0.pdf

The Seventh Circuit Addresses Credibility

In Keirkhavash v. Holder, the Seventh Circuit evaluated the credibility of a petitioner who initially testified that she supported a group opposed to the Iranian government, but who in remanded proceedings testified that the claim was fabricated and she testified in support of it at the direction of her prior attorney.  She then requested asylum on the basis that the Iranian government would harm her based on her fabricated statements in support of the opposition group.  The Seventh Circuit affirmed the Immigration Judge's adverse credibility finding, stating that "[w]e reject any argument that an alien can obtain asylum or relief under the CAT by the very act of lying."

The full decision can be read here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D02-23/C:14-2063:J:Easterbrook:aut:T:fnOp:N:1505523:S:0

Does a non-morally turpitudinous crime become a crime involving moral turpitude due to a gang enhancement? The Ninth Circuit says no!

It's not unusual for the Ninth Circuit and the Board of Immigration Appeals to fight about....well...everything.  And last week, the Ninth Circuit refused to defer to the BIA's determination that a gang enhancement can turn a non-morally turpitudinous offense (such as a simple assault) into a crime involving moral turpitude.  Mr. Hernandez-Gonzalez was convicted of possession of a billy club.  At the sentencing phase, the criminal court added an enhancement because the conviction was related to gang activity.  The Ninth Circuit noted that possession of a billy club is widely acknowledged to be non-morally turpitudinous conduct.  It also reiterated its prior holding that non-fraud crimes will rarely be considered crimes involving moral turpitude unless they require an intent to injury, actual injury, or a protected class of victims.  Neither the underlying weapons possession charge nor the gang enhancement included these factors.   Thus, the gang enhancement did not transform the conviction into a crime involving moral turpitude.

In reaching its conclusion, the Ninth Circuit declined to accord Chevron deference to Matter of E. E. Hernandez, which held that a conviction for vandalism with a gang enhancement was a crime involving moral turpitude.

The full text of Hernandez-Gonzalez v. Holder can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/02/13/11-70359.pdf

When is Corroborating Documentation Available? The Seventh Circuit Weighs In

Sibanda fled repeated rape attempts from her brother-in-law, seeking to claim her as his second wife when her husband passed away.  An Immigration Judge denied her asylum application, finding that she had no produced any affidavits, police reports, or country conditions reports that verified these sexual assaults.  The Seventh Circuit reversed, finding that such corroborating documentation was not reasonably available, and thus, the failure to produce it could not be grounds for denying Sibanda's application.  In so holding, the court recognized that members of Sibanda's family and tribe, who had repeatedly urged her to marry her brother-in-law because tribal custom dictated that she do so, were unlikely to provide affidavits corroborating her assertion that they failed to protect her from harm.  It was similarly unreasonable to expect that the police would verify such an assertion.  As for country conditions reports, the Judge used a wikipedia article (a copy of which was not provided to Sibanda) to quiz her about "bride price" customs.  The Judge did not, however, see fit to consult more reliable and available reports from the U.S. and Australian government that confirmed Sibanda's claim.  

The full text of Sibanda v. Holder can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D02-13/C:14-2157:J:Wood:aut:T:fnOp:N:1501058:S:0

The BIA Clarifies the Rules of Divisibility

In response to the Department of Homeland Security's request for partial reconsideration of Matter of Chairez, 26 I&N Dec. 349 (BIA 2014), the Board of Immigration Appeals clarified that with respect to aggravated felony convictions, Immigration Judges must follow the law of the circuit court of appeals in whose jurisdiction they sit in evaluating issues of divisibility, so the interpretation of Descamps v. United States, 133 S. Ct. 2276 (2013), reflected in Matter of Chairez, 26 I&N Dec. 349 (BIA 2014), applies only insofar as there is no controlling authority to the contrary in the relevant circuit.  Moreover, since the Tenth Circuit has taken an approach to divisibility different from that adopted in Matter of Chairez, the law of the Tenth Circuit must be followed in that circuit.  Unfortunately for Mr. Chairez, he was removable under the Tenth Circuit's definition of divisibility.

The full text of the new decision in Matter of Chairez can be found here: http://www.justice.gov/eoir/vll/intdec/vol26/3825.pdf 

The BIA Addresses the Citizenship of Children Born out of Wedlock

Last week, the Board of Immigration Appeals (BIA) attempted to reconcile its inconsistent treatment of children born out of wedlock.  The BIA determined that a person born out of wedlock may qualify as a legitimated “child” of his or her biological parents for purposes of citizenship if he or she was born in a country or State that has eliminated all legal distinctions between children based on the marital status of their parents or had a residence or domicile in such a country or State (including a State within the United States), if otherwise eligible.

On July 3, 1988, Mr. Cross was born out of wedlock in Jamaica to parents who were not then citizens or nationals of the United States.  At the time of his birth, the Jamaican Status of Children Act (“JSCA”) of 1976 had eliminated the legal distinctions between legitimate and illegitimate children in that country. In 1995, Mr. Cross’ father placed his name on this birth certificate, thereby qualifying Mr. Cross as a legitimated child for purposes of visa preference classification under American immigration law.  Mr. Cross' father eventually immigrated to the United States and subsequently accorded him a visa preference classification as his “child.”  On September 2, 2000, at the age of 12, Mr. Cross was admitted to the United States as an immigrant and thereafter resided in this country as a lawful permanent resident. On August 3, 2001, his father became a United States citizen by naturalization while Mr. Cross was in his father’s legal custody. 

At that time, the law provided that a child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled: (1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization. (2) The child is under the age of eighteen years. (3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.  

The Immigration Judge found that Mr. Cross did not qualify as the child of his father because the definition of child under the immigration law was "an unmarried person under twenty-one years of age and includes a child legitimated under the law of the child’s residence or domicile, or under the law of the father’s residence or domicile, whether in the United States or elsewhere . . . , if such legitimation . . . takes place before the child reaches the age of 16 years . . . , and the child is in the legal custody of the legitimating . . . parent or parents at the time of such legitimation."  In so holding, the Judge relied on prior BIA caselaw finding that the only way to legitimate a child under Jamaican law was for the child's parents to marry (which Mr. Cross' parents had not done).

Recognizing the tension between these interpretations, the BIA determined that a person born abroad to unmarried parents can be a “child” for purposes of section 320(a) if he or she is otherwise eligible and was born in a country or State that had eliminated legal distinctions between children based on the marital status of their parents or had a residence or domicile in such a country or State (including a State within the United States).  Thus, Mr. Cross was indeed a citizen, and the BIA terminated the removal proceedings against him.

The full text of Matter of Cross can be found here: http://www.justice.gov/eoir/vll/intdec/vol26/3826.pdf

Eighth Circuit Addresses Particular Social Groups in Kenya

Kanugu provided financial support to a group of vigilantes who opposed the Munguki, a powerful organized crime group in Kenya.  For his opposition, he was kidnapped and his daughter was raped by the Munguki.  However, because he agreed with the Immigration Judge's characterization of his particular social group as "individuals who were openly opposed to the Munguki sect," the Immigration Judge determined that the group was too diffuse to qualify as a particular social group for asylum purposes.   The Eighth Circuit would not permit Kanugu to narrow the parameters of the group on appeal.  Thus, it affirmed the denial of his asylum application.

The full text of Kanugu v. Holder can be found here: http://media.ca8.uscourts.gov/opndir/15/02/133563P.pdf

Ninth Circuit Examines a Washington Conviction for Delivery of a Controlled Substance

The Ninth Circuit addressed whether a conviction for delivery of heroin under Revised Code of Washington § 69.50.401(a)(1)(i) was a “drug trafficking offense.”  The court held that the defendant had not show a realistic probability that the statute could covered the act of administering a drug.  He had identified any cases where the state had prosecuted someone for this conduct.  The court distinguished this from other overbroad statutes which specifically identified conduct in the plain wording of the statute that fell outside the federal generic definition, stating that the statute at issue "does not expressly include conduct not covered by the generic offense, but rather is silent as to the existence of a parallel administering exception."  Thus, the conviction could be properly characterized as a drug trafficking offense.  This case could have implications for immigration proceedings, where drug trafficking offenses can be classified as aggravated felonies or where a respondent can be found inadmissible if there is reason to believe he engaged in drug trafficking. 

The full test of US v. Borgos-Ortega can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/02/05/13-50237.pdf

The Eleventh Circuit Addresses the Immigration Consequences of a Florida Conviction for "Launching a Missile at a Structure"

Sometimes, you just can't make this stuff up.  You read the title correctly - launching a missile at a structure.  The question is, when a respondent is convicted of doing this in Florida, is he convicted of a crime of violence?  In the context of a federal sentencing case, the 11th Circuit said "maybe."

The court found that the statute was divisible with regard to the level of intent required (wanton or malicious), and that only wanton conduct would demonstrate that the person had "acted intentionally or with reckless indifference to the consequences and with knowledge that damage is likely to be done to some person," and thus, committed a crime of violence.  Because the record of conviction was inconclusive with regard to the intent involved in Estrada's conviction, the conviction could not be properly classified as a crime of violence.  Although this case was decided in the context of federal sentencing, one of the definitions of a crime of violence for immigration purposes parallels the sentencing provision, and thus, the case could have "crimmigration" implications as well.

You can read the full text of U.S. v. Estrada here: http://media.ca11.uscourts.gov/opinions/pub/files/201410230.pdf

Fourth Circuit Overturns an Adverse Credibility Determination; Cites Problems with the Interpreter

Any attorney who has practiced in Immigration Court can give you a war story (or several dozen) about the unreliability of the translation services provided in court.  It's hit-or-miss; sometimes the interpreter is competent, sometimes he isn't.  Today, the Fourth Circuit reversed an adverse credibility decision, citing in large part the evidence that the interpretation services were insufficient.  The court began by reviewing the telltale signs of interpretation problems: 

First, direct evidence of incorrectly translated words is persuasive evidence of an incompetent translation. Second, unresponsive answers by the witness provide circumstantial evidence of translation problems. A third indicator of an incompetent translation is the witness’s expression of difficulty understanding what is said to him.

The court then proceeded to discuss how all three of these indicators were present in the case, noting that

The two days of testimony were translated by two different interpreters, with nearly all instances of potential confusion (involving both the petitioner and his witness) arising on the first day. The transcript of that day reveals:

• An instance when the interpreter failed to translate Ilunga’s statement that he was sexually assaulted in jail, an omission caught by Ilunga’s attorney, leading to the translator’s opaque admission after the fact that he thought Ilunga “was not speaking clearly and this interpreter, perhaps, what he could hear from him [sic]” 

• A repeated disconnect between questions and answers

• At least 16 times during the first day’s testimony when Ilunga or Kalala stated they did not understand a question 

•An instance when Ilunga’s attorney believed the interpreter translated Ilunga’s statement as saying he suffered at the hands of the political party he worked for, instead of the party he opposed

• Confusion about whether Ilunga testified that he told his wife and children to flee their home while he was still in prison or after 

• At least 11 times when the interpreter needed a question repeated

• Frequent grammatical errors and questionable word choices

The court concluded that these issues should have been warning flags to the Immigration Judge, and thus, that the Immigration Judge's credibility analysis was flawed.

The complete text of Ilunga v. Holder can be found here: http://www.ca4.uscourts.gov/Opinions/Published/132064.P.pdf