Ninth Circuit Finds that Government Agents Destroyed Evidence in Bad Faith

Normally, I reserve my blog posts for immigration cases or federal sentencing cases which have "crimmigration" implications.  But today I'm deviating from my norm.  The Ninth Circuit issued a really interesting decision in a federal drug smuggling case.  At issue was whether the government had an obligation to preserve videotape footage from the port of entry that may have demonstrated the defendant acted under duress.  Below is an excerpt from the decision, where the court chastises the government for acting in bad faith by destroying the videotape footage.

As the district court found, the destroyed video was potentially useful evidence to support defendant’s claim of duress. The video footage may have shown Zaragoza throwing her passport on the ground, trying to loosen the packages of drugs from her body, Karen and Chino removing her from the pedestrian line, and other behavior that Zaragoza allegedly engaged in to make herself “obvious” to law enforcement. Such evidence, especially Zaragoza trying to attract the attention of the border inspectors, would be particularly helpful to Zaragoza establishing the third element of her duress claim. The video may have also shed light on the extent to which Karen was overseeing and controlling Zaragoza, and whether it would have been feasible for Zaragoza to have alerted border inspectors to the contraband at an earlier time. As such, the district court correctly found that the video footage was “potentially useful evidence.” The district court, however, clearly erred in finding that the exculpatory value of the video footage of the Port of Entry pedestrian line was not readily apparent to Agent Alvarado.  A review of the interview transcript establishes Agent Alvarado’s knowledge of the potentially 12 UNITED STATES V. ZARAGOZA-MOREIRA exculpatory value of the pedestrian line video before it was destroyed. From the beginning to the end of Agent Alvarado’s hourlong interview with Zaragoza, Zaragoza repeatedly alerted Alvarado to her duress claim and the potential usefulness of the pedestrian line video footage. Shortly after questioning began, when asked to tell her side of the story, Zaragoza stated “[y]eah, I made it obvious. I was making — I wanted to be known. I didn’t want to do it.” Thereafter, Zaragoza repeatedly stated throughout the interview that she had tried to attract the attention of the authorities while in the pedestrian line by “making a lot of noises so I could be noticed,” and by making herself “obvious.”

Despite Agent Alvarado’s testimony that she “overlooked” retrieving the video footage because it was “just something I didn’t think about doing,” Alvarado undoubtedly appreciated the significance of Zaragoza’s claims during the interview. While discussing Zaragoza and Karen’s interactions in the pedestrian line, Alvarado asked Zaragoza how long she had waited in line, to which Zaragoza indicated that she had been in the pedestrian line for about 40 minutes. Agent Alvarado also asked Zaragoza why she did not alert border inspectors to the drugs earlier, and Zaragoza explained that she was “scared because Karen was with me.” Alvarado then followed up, asking Zaragoza if Karen was “right next to [her],” if the two had been in the “same lines,” and if Karen was “right there.” Later on, Alvarado confirmed that “Karen was right behind you in the same line?” Agent Alvarado obviously recognized the importance of Zaragoza’s statement that Karen was with her in the pedestrian line. 

The government asserts that failure to preserve the video evidence was a mere “oversight,” and that negligence or recklessness is not sufficient to support a finding of bad faith. In the context of the instant case, we disagree. Contrary to the government’s contentions, Agent Alvarado’s actions were not merely negligent or reckless, nor was the video destroyed in the normal course of the government’s usual procedures. Agent Alvarado testified that she has a professional obligation to collect and preserve both exculpatory and inculpatory evidence. She admitted that she understood that a defendant who is threatened or forced to commit a crime has a possible defense to that crime. Agent Alvarado also testified that she knew the pedestrian line at the Port of Entry was under constant video surveillance and that she had the ability to review and preserve the video recordings. However, despite this knowledge, including her knowledge of the apparent exculpatory value of the evidence, Alvarado made no attempt to view or preserve the Port of Entry video before it was destroyed.  In light of the apparent value of the video evidence, which was known to Agent Alvarado, her actions following Zaragoza’s interview are sufficient to establish that she made “a conscious effort to suppress exculpatory evidence,” thereby acting in bad faith. 

In light of these actions, the court found that the defendant's due process rights had been violated and ordered the indictment dismissed.

So why am I writing about this? In part, because I have heard many individuals tell me that they expressed a fear of returning to their home country to CBP, despite the forms CBP later fills out that omit this information.  This case is recognition that CBP does not always act in good faith and is often negligent in its record keeping.  In addition, it's a reminder to immigration attorneys that video footage from the borders exists, and can be a valuable source of evidence (if we can get them before they're destroyed!)

The full text of USA v. Zaragoza-Moreira can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/03/18/13-50506.pdf

Missouri 2nd Degree Burglary Matches Generic Definition of Burglary

In a decision perhaps more interesting for its discussion of privacy interests and Fourth Amendment law, the Eighth Circuit reaffirmed, in light of the Supreme Court's decision in Descamps v. US, that second-degree burglary in Missouri (including commercial burglary) matches the generic definition of a burglary offense.  Though this finding was made in the context of a federal criminal sentencing action, it has implications for immigration practitioners.  If second-degree burglary in Missouri matches the federal generic definition of a burglary offense, then a conviction for second-degree burglary in Missouri that is accompanied by a sentence of 1 year or more is very likely an aggravated felony for immigration purposes under section 101(A)(43)(G) of the Immigration and Nationality Act.  

You can read the full text of US v. Bearden (including the more interesting Fourth Amendment/suppression analysis) here: http://media.ca8.uscourts.gov/opndir/15/03/141659P.pdf

Seventh Circuit Denies CAT Protection to a Bosnian Refugee

Emir Lenjinac entered the United States as a refugee, after Serbian forces burned his home to the ground and took several relatives prisoner during the Srebrenica massacre.  Lenjinac later became a lawful permanent resident, but in 2010, pled guilty to dealing in cocaine.  He was placed in removal proceedings, where he was eligible only for protection under the Convention Against Torture (CAT) because of his conviction.  His mother and brother testified in support of his application for protection under the CAT, describing fears that members of the military might kill Lenjinac because they previously killed other male family members during the civil war. Lenjinac testified that given his criminal history in the United States, he would likely be detained upon his return and tortured while in the Bosnian prison system. 

The Immigration Judge initially granted his application for protection under the CAT, but the Board of Immigration Appeals (BIA) overturned that decision, finding that there was insufficient evidence that parties in Bosnia-Herzegovina retained an interest in harming Lenjinac or would torture him upon his return, or evidence that he would be imprisoned for the purpose of causing him pain and suffering,

Lenjinac appealed to the Seventh Circuit, arguing that the BIA misstated the applicable burden of proof by requiring him to prove “that authorities will imprison him in order to cause him pain and suffering.”  The Seventh Circuit rejected this contention, finding that although the BIA may have used this phrase, it had considered all of the evidence in the record to determine if it was more likely than not (the proper standard for a CAT application) that Lenjinac would be tortured in Bosnia-Herzegovina.  

Lenjinac also argued that the fact that he is likely to be imprisoned or detained upon his return combined with evidence that torture is commonplace in Bosnian prisons satisfies his burden of proof.  The Seventh Circuit disagreed.  Although the court acknowledged the reports of life-threatening prison conditions and incidents of torture in Bosnian prisons, it determined that this evidence did not establish that it is more likely than not that Lenjinac would be tortured or abused; the court also noted that there was no evidence that these harsh prison conditions were intended to inflict pain or suffering on prisoners.  Finally, neither Lenjinac’s familial losses during the Bosnian civil war, his heritage, nor his lack of home to return to, established that he would be more vulnerable to mistreatment than the general prison population.  

The full text of Lenjinac v. Holder can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D03-17/C:14-1807:J:Bauer:aut:T:fnOp:N:1518299:S:0

Second Circuit Affirms the BIA's Application of the Waiver Doctrine

The Second Circuit, joining the 1st, 5th, 8th, and 10th Circuits, decided that the BIA may find that an immigrant waives an argument when he doesn't raise it before the Immigration Judge.  In the instant case, the immigrant tried to argue to the BIA that the Supreme Court's decision in US v. Descamps impacted the analysis of the immigration consequences of his criminal convictions.  However, Descamps was decided before his last immigration court hearing, and he did raise the argument before the Immigration Judge.  Thus, the BIA properly deemed it waived.

The full text of Prabhudial v. Holder can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/d7e4e4e1-e7ad-4ebd-9d8e-54cbd67f9f60/1/doc/14-4574_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d7e4e4e1-e7ad-4ebd-9d8e-54cbd67f9f60/1/hilite/

Sixth Circuit Affirms Denial of Cancellation of Removal for a Non-Lawful Permanent Resident

Mr. Montanez-Gonzalez is the father of 3 U.S.-citizen children, including an academically talented daughter, and another daughter suffering from elevated levels of lead in her blood.  Unfortunately, he only sought to introduce evidence of the latter daughter's health concerns after the evidentiary record had been closed, and the Judge refused to admit it.  Nevertheless, the Sixth Circuit affirmed the Judge's denial of cancellation of removal on hardship grounds, finding that even if the exclusion of the medical evidence was a due process violation (a finding it declined to make), it did not prejudice Mr. Montanez-Gonzalez's proceedings, as it would not have led to a different outcome.  Notably, the Judge acknowledged the medical record in his oral decision denying cancellation, even though he did not admit the record into evidence.

The Sixth Circuit also found no fault with the Judge's analysis of the hardship posed by country conditions in Mexico, finding that though the Judge's articulation of the hardship standard was inartful, there was no reason to believe the Judge failed to consider all of the evidence.

You can read the full text of Montanez-Gonzalez v. Holder here: http://www.ca6.uscourts.gov/opinions.pdf/15a0042p-06.pdf

Seventh Circuit Denies Request for Continuance to File a Second I-130

It's been a rough month for immigrants married to U.S. citizens.  

Last week, the Seventh Circuit affirmed the removal of a man who married a U.S. citizen, but later divorced her over disagreements about having children.  Judge Posner wrote an impassioned dissent defending the good faith nature of the marriage, and accusing his fellow justices of seeing fraud where none exists.  See my post on Bouras v. Holde: 

http://www.sabrinadamast.com/journal/2015/3/8/seventh-circuit-denies-i-751-judge-posner-dissents-showing-sympathy-to-immigrant-but-contempt-for-immigration-attorneys

Earlier this week, the Eighth Circuit denied an immigrant's request for a continuance (admittedly, his 13th such request), to allow his daughter to file a petition on his behalf, on account of a prior finding by the Department of Homeland Security that the immigrant had engaged in marriage fraud.  See my post on Mogeni v. Holder:   

http://www.sabrinadamast.com/journal/2015/3/9/eighth-circuit-affirms-denial-of-request-for-13th-continuance

Today, we return to the Seventh Circuit, who in a decision issued on Wednesday, still showed little sympathy for the uphill battle our clients often face in proving that they married U.S. citizens for bona fide reasons, and not just to obtain permanent residence.  Mr. Souley also married a U.S. citizen, who filed a petition on his behalf.  The Government deemed the documents she supplied insufficient to demonstrate the bona fide nature of their relationship. complaining, in part, that there was no evidence of Mr. Souley on the lease for the couple's residence, and that he was not named in the eviction proceedings brought by the landlord.  Mr. Souley, a less than punctual person, put together a packet for a second petition, this time showing his name of the lease (though not his wife's) and showing a lawsuit pending against him for unpaid rent.  He did not file it, instead seeking a continuance from the Judge to do so, before investing the resources in the filing fees without knowing if the Judge would permit the adjudication process.  This was excellent foresight on his part, as the Judge denied his request for a continuance, finding that Mr. Souley had not demonstrated sufficient likelihood that this second would be approved, and thus, concluding that there was no good cause for a continuance.  He ordered Mr. Souley removed from the United States at a master calendar hearing.  The Seventh Circuit affirmed, finding that the possibility that the second petition (still not filed by Mr. Souley) to be too speculative to warrant a continuance.

You can read the full text of Souley v. Holder here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D03-11/C:14-2536:J:PerCuriam:aut:T:fnOp:N:1515069:S:0

BIA Recognizes the Existence of Death Squads during Salvadoran Civil War; Strips Former Defense Minister of his Residence

Carlos Eugenio Vides Casanova served as the Director of the Salvadoran National Guard, and later as Minister of Defense during the Salvadoran Civil War.  The Department of Homeland Security alleged that he participated in acts of torture and extrajudicial killings during his tenure in these government positions.  The Immigration Judge agreed, finding that Mr. Vides assisted or otherwise participated in six well-known and documented instances of extrajudicial killing.  The judge also found that Mr. Vides to investigate the killings after the fact, to cooperate with the investigations (which he impeded), and to ultimately hold the accused perpetrators accountable.  The Board agree that these acts, when taken in context with Mr. Vides' role as a military commander, collectively amounted to assistance or participation in the killings.   The Board noted that the statute does not require the person to have taken personal action to promote or facilitate the alleged acts before or during their commission.  It is sufficient that he (1) had knowledge that his subordinates committed unlawful acts and (2) failed to take action to investigate those acts afterwards in a genuine effort to punish the perpetrators.  Mr. Vides, who affirmatively and knowingly shielded subordinates from the consequences of their acts and promoted a culture of tolerance for human rights abuses, fell within the ambit of the statute.

The full text of Matter of Vides Casanova can be found here: http://www.justice.gov/eoir/vll/intdec/vol26/3827.pdf 

Eighth Circuit Denies a Gang-Based Asylum Claim

In another depressing episode in the saga of gang-related asylum cases, the Eighth Circuit today determined that victims of gang violence, and those who refuse to join gangs, are not members of particular social groups.  The court noted that this group lacks visibility and particularity.  Though the petitioner tried to argue that he would also be persecuted on account of his Mam ethnicity, the court determined that it had no jurisdiction over this claim which had not been administratively exhausted.

The full text of Chilel v. Holder can be found here:  http://media.ca8.uscourts.gov/opndir/15/03/141936P.pdf

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