Second Circuit Construes "Stop-Time" Rule

The Second Circuit deferred to the Board of Immigration Appeals' (BIA) decision in Matter of Camarillo and determined that proper service of a Notice to Appear (NTA), even if it does not specify the time and date of a court hearing, is sufficient to stop the accumulation of physical presence necessary for a cancellation of removal application.  In doing so, the Court reiterated some of the reasons relied on by the BIA for finding that service of the "incomplete" NTA was sufficient to trigger the stop-time rule, including that scheduling of hearings is handled by the Department of Justice, while service of the NTA is handled by the Department of Homeland Security and the stop-time rule was enacted to ensure that non-citizens did not have a motivation (i.e. the continued accumulation of physical presence)  to prolong their proceedings unnecessarily. 

The full text of Guaman-Yuqui v. Lynch can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/f34213d5-f073-4e44-b6fb-794d631e1075/3/doc/14-200_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/f34213d5-f073-4e44-b6fb-794d631e1075/3/hilite/

BIA Clarifies the Extent of a 237(a)(1)(H) Waiver

In Matter of Agour, the BIA confirmed that an adjustment of status qualifies as an admission, and thus, any fraud committed during the adjustment process can be waived under section        237(a)(1)(H) of the INA, even if the applicant previously entered the United States in an other status without committing any fraud to procure that entry.  The BIA explored the historical evolution of the immigration laws, which have shifted the focus away from whether a person has effectuated an "entry" into the United States to whether a person has been admitted, and concluded that this evolution, as well the statutory language of section 237 of the INA (which covers inadmissibility at the time of entry or adjustment), mandated that fraud in an adjustment be treated the same as fraud in an entry - in other words, that both be waiveable under section 237(a)(1)(H) of the INA.

The full text of Matter of Agour can be found here: http://www.justice.gov/sites/default/files/pages/attachments/2015/05/18/3837_0.pdf

Eleventh Circuit Addresses a Federal Conviction for Coercing a Minor into Sexual Activities

In a fairly unsurprising determination, the Eleventh Circuit determined that a violation of 18 U.S.C. § 2422(b), which prohibits knowingly persuading, inducing, enticing, or coercing a minor to engage in sexual activity, is a crime of violence under federal sentencing laws.  "Since the conduct encompassed by the elements of §2422(b) involves a sex crime against a minor, the ordinary or generic violation of § 2422(b) involves a substantial risk the defendant may use physical force in the course of committing the offense."  As such, it it qualifies as a crime of violence under 18 U.S.C. § 16(b).  For the same reasons, a conviction under this statute is certainly a crime of violence for immigration purposes.

The full text of U.S. v. Keelan can be found here: http://media.ca11.uscourts.gov/opinions/pub/files/201311878.pdf

The Board of Immigration Appeals Changes Course on 212(h) Waivers for Lawful Permanent Residents Convicted of Aggravated Felonies

In Matter of J-H-J-, the Board of Immigration Appeals (Board) withdrew its previous opinions finding that lawful permanent residents convicted of aggravated felonies are never eligible for a waiver under section 212(h) of the INA.  The vast majority of circuit courts who had addressed this issue had disagreed with the Board, creating a lack of uniformity on the issue nationwide.  "We will therefore withdraw from our decisions in Matter of Koljenovic and Matter of E.W. Rodriguez and hold that section 212(h) of the Act only precludes aliens who entered the United States as lawful permanent residents from establishing eligibility for a waiver on the basis of an aggravated felony conviction." 

The full text of Matter of J-H-J- can be found here: http://www.justice.gov/sites/default/files/pages/attachments/2015/05/12/3836_0.pdf

Eleventh Circuit Corrects BIA's Erroneous View of the Evidence in a Motion to Reopen

From time to time, I find a great unpublished case whether a circuit court really goes to town with the Board of Immigration Appeals.  Today I found one from the Eleventh Circuit that I wanted to share.

Zheng filed a motion to reopen based on changed country conditions in China - namely, an increase in enforcement of the One Child Policy.  He submitted three reports which the Board of Immigration Appeals refused to consider because it determined they were incomplete.  The Eleventh Circuit, after reviewing the evidence, determined that Zheng submitted the entire contents of the first report.  Although he only submitted selected chapters of the second and third reports, he submitted the table of contents for each of these reports, demonstrating that he submitted the chapters relevant to his claim (and saved a lot of trees by not printing the rest). As such, the Eleventh Circuit found that the Board of Immigration Appeals abused its discretion in denying the motion to reopen and remanded the case for further consideration.

The full text of Zheng v. Attorney General can be found here: http://media.ca11.uscourts.gov/opinions/unpub/files/201411792.pdf

Eighth Circuit Addresses Iowa's Second-Degree Burglary Statute

In the context of a federal criminal sentencing case, the Eighth Circuit analyzed Iowa's second-degree burglary statute.  Noting that the statute criminalizes entrance into a variety of structures not covered by the generic definition of a burglary offense (i.e. a land, water or air vehicle), the court went on to reject the petitioner's argument that these alternative structures were not alternative elements, but actually alternative means that a jury was not required to unanimously agree upon to convict a defendant.  The court explicitly noted that the Supreme Court's decision in Descamps rejected such an approach to divisibility.  Thus, the court deemed the statute divisible, and examined the documents in the record of conviction.  This review led to the conclusion that the petitioner had entered garages during his burglary offenses, and thus, his offenses fell within the generic definition of a burglary offense. 

The Eighth Circuit recognized that its divisibility analysis contributed to a circuit split, putting it at odds with the Ninth and Fourth Circuits, but aligning it with the Second Circuit.  It also noted that at least one other circuit had declined to reference a separate statute that defined a term in the statute of conviction.  

The case is significant for immigration practitioners for two reasons.  First, it strongly suggests that a conviction for second-degree Iowa burglary can, under the modified categorical approach, qualify as a burglary aggravated felony.  Second, and more importantly, because the Board of Immigration Appeals defers to the law in an individual circuit defining a divisible statute, this case will set the tone for all immigration cases in the Eighth Circuit with regard to analyzing whether a statute is divisible.  The means/elements distinction raised by the petitioner (and recognized by several other circuit courts) will no longer play a role in Eight Circuit analyses of the immigration consequences of criminal convictions.  This, to say the least, is bad news for Eighth Circuit immigrants with a criminal history.  

The full text of USA v. Mathis can be found here: http://media.ca8.uscourts.gov/opndir/15/05/141213P.pdf

Eighth Circuit Affirms Denial of Motion to Reopen and Motion to Reconsider

Martinez filed an untimely motion to reopen his removal proceedings alleging changed country conditions in his home country of Guatemala.  He based his fear of returning to Guatemala based on the targeting of members of his church youth group, and provided evidence that a friend had been murdered in Guatemala since his last hearing.  However, the Board of Immigration Appeals denied his motion to reopen, noting that Martinez had not established that his murdered friend was a member of youth group or that his death was otherwise related to Martinez's asylum claim. The Eighth Circuit affirmed, finding that the friend's murder was simply indicative of violent conditions in Guatemala that already existed at the time of Martinez's merits hearing.  For similar reasons, the Eighth Circuit affirmed the Board of Immigration Appeals' denial of Martinez's motion to reconsideration of the denial of his motion to reopen.

The full text of Martinez v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/05/141213P.pdf

Seventh Circuit Addresses Stand-Alone 212(h) Waivers

In a relatively brief opinion, the Seventh Circuit deferred to the Board of Immigration Appeals' decision in Matter of Rivas, which determined that a lawful permanent resident charged with deportability grounds cannot seek a stand-alone 212(h) waiver, but must apply for the waiver in conjunction with an adjustment of status application.  The Seventh Circuit also affirmed an IJ's determination that a collateral attack on a criminal conviction is not necessarily good cause for a continuance.

The full text of Palma-Martinez v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D05-11/C:14-1866:J:Manion:aut:T:fnOp:N:1549550:S:0

BIA Issues Decision on Unlawful Voting

In Matter of Fitzpatrick, the Board of Immigrations Appeals (BIA) determined that unlawful voting by a lawful permanent resident could render the individual deportable, even if the person did not know she was committing an unlawful act by voting.  The BIA found that Fitzpatrick had violated a federal statute that did not require any specific intent - that is, it did not require the government to prove that Fitzpatrick intended to commit an unlawful act by voting, only that she actually voted and that she knew she was not a United States citizen.  Fitzpatrick tried to argue that she was exempt from the cited federal provision, but the BIA rejected her argument.

As states contemplate laws that automatically register people to vote when they apply for driver's licenses, this decision becomes all the more worrisome.  How many non-citizens, having been automatically registered to vote by the Department of Motor Vehicles and having received mail about where and when to vote, will unwittingly lose their immigration status by unlawfully voting?

The full decision in Matter of Fitzpatrick can be found here: 

http://www.justice.gov/file/3835pdf/download

Fourth Circuit Issues Fantastic Gang-Related Family-Based Particular Social Group Decision

Maydai Hernandez-Avalos was a Salvadoran woman.  In 2007, her husband's cousin, Augustin, was murdered by members of the Mara 18 gang.  She identified the body at the medical forensic lab.  After Augustin's funeral, heavily armed gang members came to Hernandez's home and threatened to kill her if she identified Augustin's murderers to the police. 

A few months later, five members of the Mara 18 gang came to her home and told her that it was time for her 12-year-old son Kevin to join the gang.  When Hernandez refused, the gang members put a gun to her and threatened to kill her if she opposed Kevin's membership in the gang.  On a third occasion, members of the Mara 18 again pointed a gun at Hernandez and threatened to kill her if she did not allow Kevin to join the gang within one day.  Hernandez testified that she did not report these threats to the police because gang members often learn the identity of those who report them and then retaliate against those individuals.

The Immigration Judge denied Hernandez's application for asylum, finding that she had not demonstrated that she would suffer harm on account of a protected ground or that the Salvadoran government was unable or unwilling to protect her.  The Board of Immigration Appeals affirmed this decision.

The Fourth Circuit reversed, finding that Hernandez was threatened on account of her membership in the particular social group comprised of her nuclear family.  "Hernandez’s relationship to her son is why she, and not another person, was threatened with death if she did not allow him to join Mara 18, and the gang members’ demands leveraged her maternal authority to control her son’s activities.  The BIA’s conclusion that these threats were directed at her not because she is his mother but because she exercises control over her son’s activities draws a meaningless distinction under these facts."  The court rejected the Government's argument that Hernandez was persecuted because she interfered with the gang's recruitment activities. "Because any reasonable adjudicator would be compelled to conclude that Hernandez’s maternal relationship to her son is at least one central reason for two of the threats she received, we hold that the BIA’s conclusion that these threats were not made 'on account of' her membership in her nuclear family is manifestly contrary to law and an abuse of discretion."

With regard to the issue of government protection, the court noted that "Hernandez, whom the IJ found to be a credible witness, provided abundant evidence that the authorities would not have been responsive to such a report. Hernandez’s affidavit, in combination with the other evidence presented in this case, suggests that the police in her neighborhood may be subject to gang influence."

The full text of Hernandez-Avalos v. Lynch can be found here: http://www.ca4.uscourts.gov/Opinions/Published/141331.P.pdf

First Circuit Addresses Whether a Conviction for Third-Degree Assault in Connecticut is an Aggravated Felony

Last week, the First Circuit addressed whether a conviction for third-degree assault in California could be properly characterized as a crime of violence under 8. U.S.C. section 16(a).  Both parties agreed that a conviction under this statute could not be a categorical match to the definition of a crime of violence because it criminalized reckless and negligent conduct, as well as intentional conduct.  In the instant case, the Third Circuit determined that use of the modified categorical approach was not appropriate because the record of conviction did not establish under which prong of the statute the petitioner had been convicted.  Moreover, the plea colloquy demonstrated that the petitioner disagreed with the prosecutor's version of events, making it even more unclear what conduct the conviction necessarily rested upon.  Thus, it could not determine if the conviction rested upon intentional conduct.  

The full text of Villanueva v. Holder can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-1217P-01A.pdf

Eleventh Circuit Weighs in on the Immigration Consequences of a Florida Conviction for Uttering False Instruments

The Seventh Circuit determined that a conviction under a Florida statute criminalizing uttering a false instrument necessarily entails a knowingly deceitful act, and thus, qualifies as a fraud-based aggravated felony if the crime resulted in a loss to the victim in excess of $10,000.  For the same reason, the conviction qualifies as a crime involving moral turpitude.

The full text of Walker v. Attorney General can be found here: http://media.ca11.uscourts.gov/opinions/pub/files/201412814.pdf

Seventh Circuit Reverses an Adverse Credibility Decision Premised on an Airport Interview Conducted in a Language that the Immigrant did not Speak Fluently

Nadmid is a native and citizen of Mongolia.  He applied for asylum, withholding of removal, and protection under the Convention Against Torture.  Though he testified consistently with his declaration and with the testimony of an expert witness, the Immigration Judge still found his testimony to lack credibility.  This determination was premised on inconsistencies between Nadmid's in-court testimony and his statements during an airport interview conducted in Russian. The Seventh Circuit reversed, noting the indicia of unreliability in the transcript of the airport interview, which clearly reflected that Nadmid was not a fluent Russian speaker and was having difficulty communicating the with the interviewer.

The full text of Nadmid v. Holder can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D04-21/C:14-1477:J:Williams:aut:T:fnOp:N:1538268:S:0

Fourth Circuit Addresses Jurisdiction over a Denied I-130; Declines to Transfer Case to District Court

Ashton Leblanc, a U.S. citizen, employed an attorney to help him secure citizenship for his son, who was born outside of the United States.  The attorney filed a family-based immigration petition (known as an I-130) on behalf of Ashton's son, Robert.  The I-130 was eventually denied for failure to submit the necessary documents and the Board of Immigration Appeals affirmed the denial.  All along, the attorney assured Ashton that all was proceeding as planned.  Ashton eventually spoke to a second attorney, who called the first attorney to inquire about the status of the case.  Because the second attorney was satisfied that the first attorney had everything well in hand (clearly not the case given that the case had been denied), he reassured Ashton.  Finally, Ashton hired a third attorney who discovered the first attorney's blunder, and moved to reopen the petition at the Board of Immigration Appeals.  This motion was denied, and subsequently appealed to the Fourth Circuit.

The Fourth Circuit determined that it had no jurisdiction over a denied visa petition.  Ordinarily, such a denial should be transferred to a District Court for review.  However, the Fourth Circuit declined to do so, finding that the interests of justice would not be served, as Ashton's goal was to establish Robert's citizenship, and the approval of the I-130 would be of no benefit to that process.

The full text of Leblanc v. Holder can be found here: http://www.ca4.uscourts.gov/Opinions/Published/132474.P.pdf

The BIA Addresses Administrative Closure for a Pending Criminal Appeal

In Matter of Montiel, the Board of Immigration Appeals (BIA) determined that in certain circumstances, administrative closure of a pending immigration court proceeding may be proper when a respondent is appealing his criminal conviction.  The BIA found such action appropriate in Montiel's case, in part, because the conviction was what made him removable, and a reversal on appeal would mean that he was not removable as charged.  Notably, the motion for administrative closure had been joined by the Department of Homeland Security.  The BIA reiterated the case-by-case analysis required for a motion for administrative closure and reaffirmed the factors outlined in Matter of Avetisyan.

The full text of Matter of Montiel can be found here: http://www.justice.gov/eoir/vll/intdec/vol26/3834.pdf

Attorney General Withdraws Matter of Silva-Trevino

Attorney General Holder has withdrawn the decision in Matter of Silva-Trevino.  Though this has little impact in certain jurisdictions (such as the Ninth Circuit) where circuit court decisions have essentially overruled Silva-Trevino, the withdraw of the decision may bring some uniformity in the minority jurisdictions that were still following the decision.  Attorney General Holder has asked the Board of Immigration Appeals to create a new framework for determining how to evaluate whether a conviction qualifies as a crime involving moral turpitude.

The full text of the Attorney General's withdrawal of the decision can be found here: http://immigrantdefenseproject.org/wp-content/uploads/2011/03/AG-Order-Vacating-Silva-Trevino-2015.pdf

Sixth Circuit Affirms Civil Denaturalization Finding

This week, the Sixth Circuit affirmed a District Court's order denaturalizing a man who obtained his lawful permanent residence through a sham marriage.  Notably, the immigrant failed to appear at the denaturalization hearing and presented no witnesses in his defense.  The government presented the testimony of his ex-wife (with whom he entered into a sham marriage) and several of her friends, who testified that the couple never lived together, that the U.S.-citizen spouse continued dating other people, and that the couple planned to divorce before they married.

The full text of US v. Al-Sibai: http://www.ca6.uscourts.gov/opinions.pdf/15a0273n-06.pdf

Fourth Circuit Addresses Eligibility for Cancellation of Removal for Non-Lawful Permanent Residents

The Fourth Circuit addressed whether an immigrant who had never been admitted to the United States, and who had been convicted of a crime involving moral turpitude that was punishable by no more than 1 year of imprisonment, could invoke the "petty offense" exception to qualify for cancellation of removal for non-lawful permanent residents.  Deferring to the Board of Immigration Appeals' decision in Matter of Cortez, the court determined that the immigrant was statutorily barred from seeking cancellation of removal.

The court noted that the cancellation of removal statute, unlike other statutes (i.e. cancellation of removal for battered spouses) refers to convictions that arise under section 237(a)(2) of the Immigration and Nationality Act (INA) (convictions for crimes involving moral turpitude that are punishable by at least 1 year imprisonment), as opposed to convictions that render an individual deportable under this section.  Thus, the fact that an individual has never been admitted, and thus, could never be charged with deportability under section 237(a)(2) of the INA, is irrelevant.  A crime involving moral turpitude punishable by 1 year imprisonment would still arise under section 237(a)(2) of the INA, and thus, render an immigrant (whether admitted or not) ineligible for cancellation of removal for non-lawful permanent residents.

The full text of Hernandez v. Holder can be found here: http://www.ca4.uscourts.gov/Opinions/Published/141148.P.pdf

Eighth Circuit Addresses Particular Social Group Comprised of Individuals who Cooperate with ICE

Martinez-Galarza was detained by Immigration and Customs Enforcement (ICE) and pressured into giving them information about his nephew.  ICE later used this information to deport his nephew.  Martinez-Galarza applied for asylum, withholding of removal, and protection under the Convention Against Torture.  His asylum and withholding of removal applications were based on his membership in the social group of consisting of "people who have provided information to ICE to enable that organization to remove individuals residing illegally in the United States" as well as a member of a second social group consisting of "witnesses for ICE." 

The Eighth Circuit dismissed the appeal, finding that any harm that Martinez-Galarza's nephew would inflict on him would be because of a personal vendetta, and not because of his membership in the proposed social groups.  

The full text of Martinez-Galarza v. Holder can be found here: http://media.ca8.uscourts.gov/opndir/15/04/141436P.pdf

Second Circuit Addresses Whether Misprision of a Felony is a Crime Involving Moral Turpitude

In 2006, in Matter of Robles-Urrea, the Board of Immigration Appeals (BIA) adopted the rational of an 11th Circuit decision and held that misprision of felony is a crime involving moral turpitude.  In 2012, the Ninth Circuit reversed the BIA's decision in Robles-Urrea v. Holder.  The Second Circuit, faced with the question of whether a federal conviction for misprision of a felony, determined that remand to the BIA was necessary, to allow it to issue a precedential decision addressing the Ninth Circuit's more recent decision.  The remand would promote uniformity in the interpretation of the immigration laws.

The court also addressed whether the BIA's decision in Matter of Robles-Urrea, which was issued after the petitioner had been convicted, could be retroactively applied to her, given that the BIA, prior to the petitioner's conviction, had issued a precedential decision in Matter of Sloan determining that misprision of a felony was not a crime involving moral turpitude.  Whether an 14 agency decision may permissibly be applied retroactively is determined by looking at five 15 factors: (1) whether the case is one of first impression, (2) whether the new rule presents an abrupt departure from well-established practice or merely attempts to fill a void in an unsettled area of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the degree of the burden which a retroactive order places on a party, and (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard. 

The court determined that the first and fourth factors clearly favored the petitioner.  As to the other three factors, the court determined that the BIA should have the opportunity to address them in the first instance.  With regard to the second factor, the court observed that the BIA needed to address  whether its holding in Matter of Robles-Urrea was a departure from prior law.  As to the third factor, the court asked the BIA to consider whether a defendant should automatically be assumed to have relied on existing rules limiting deportation at the time she pled guilty to a crime where that guilty plea, because of a change in rules, subsequently becomes a basis for deporting her.  As to both the second and third factors, the court invited the BIA "should it find that these factors do not automatically favor the petitioner in a case such as this, to consider (A) whether Ms. Lugo in fact had notice that her guilty plea could lead to deportation, (B) whether she relied on the prior rule that it could not, and (C) whether such reliance was reasonable."  Finally, with respect to the fifth factor, the court invited the BIA to "consider the extent of the statutory interest in applying its ruling in Robles-Urrea retroactively to Ms. Lugo’s conviction and thus 16 rendering her ineligible for cancellation of removal."

This is a fabulous decision! Too often, immigrants plead guilty to crimes, only to have the immigration consequences of their convictions become much most severe at a later date.  The Second Circuit's decision recognizes, at least in certain narrow circumstances, that the retroactive application of this change in law may not be permissible.

The full text of Lugo v. Holder can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/75856644-1af6-4927-a07b-549600bd0604/1/doc/13-1484_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/75856644-1af6-4927-a07b-549600bd0604/1/hilite/