Ninth Circuit Applies Circumstance Specific Approach

The Ninth Circuit evaluated a federal conviction for money laundering conspiracy this week, and determined that the conviction could be an aggravated felony involving fraud with loss to the victim in excess of $10,000.  To determine the amount of loss to the victim, it was appropriate to employ the circumstance specific approach and consult the pre-sentencing report.  It was not, however, appropriate, to consider the allegations of overt acts in the indictment to calculate the loss to the victim, as overt acts are not required to prove a conspiracy, and thus, the petitioner's conviction did not rest upon those acts.  

The full text of Arce-Fuentes v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/10/11-73131.pdf

Ninth Circuit Finds Asylum Applicant has no Procedural Due Process Rights

In an amended decision, the Ninth Circuit eviscerated the rights of certain non-citizens seeking asylum who have not been formally admitted into the United States.  In a 2-1 decision, the court determined that such individuals have no procedural due process rights, and thus, the Fifth Amendment is not implicated when an Immigration Judge relies solely on an overseas investigatory report generated by a Department of State official who is not available for cross-examination to find an asylum applicant's testimony not credible.  In addition, the court also found that the government met its statutory burden to make reasonable efforts to make the preparer of the investigatory report available for cross-examination when it relied on a blanket Department of State policy barring employees from testifying about such matters.  The court's alarming decision seems to leave asylum applicants with few options for challenging the reliability of hearsay reports generated by government employees.  Notably, by permitting the Immigration Judge to rely solely on the overseas investigatory report to support his adverse credibility determination, the Ninth Circuit has now created a split with five other circuits on the use of such reports.  The court did not seemed phased by this at all, focusing instead on the rampant fraud that it perceives to plague the asylum process and the immigration agencies at-large.  "The reason for this deplorable state of affairs is not difficult to figure out. The schizophrenic way we administer our immigration laws creates an environment where lying and forgery are difficult to disprove, richly rewarded if successful and rarely punished if unsuccessful. This toxic combination creates a moral hazard to which many asylum applicants fall prey."

The full text of Angov v. Holder can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/08/07-74963.pdf

Ninth Circuit Rules that Applicants for Special Rule Cancellation of Removal for Battered Spouses Cannot Seek a 212(h) waiver in Conjunction with Cancellation

An applicant for special rule cancellation of removal must prove that he is not inadmissible for certain criminal offenses.  In a decision earlier this week, the Ninth Circuit grappled with the situation of an applicant for special rule cancellation who had been convicted of crimes involving moral turpitude.  The applicant argued that he could qualify for special rule cancellation in conjunction with a 212(h) waiver, which is used to wave the immigration consequences of certain types of convictions, including convictions for crimes involving moral turpitude.  Deferring to the Board of Immigration Appeals' decision in Matter of Y-N-P-, the court determined that an applicant could for special rule cancellation could not rely on a 212(h) waiver to establish his statutory eligibility for cancellation.

The full text of Garcia-Mendez v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/08/12-73430.pdf

Board of Immigration Appeals Reaffirms that a Grant of Family Unity Benefits does not Qualify as an Admission in any Status for the Purpose of Cancellation of Removal for Lawful Permanent Residents

This week, the Board of Immigration Appeals again determined that a grant of family unity benefits does not qualify as admission in any status for the purpose of cancellation of removal for lawful permanent residents.  Coincidentally, the Ninth Circuit issued a decision on the same day reaching the same holding.  Both decision rely on the rationale of the Board of Immigration Appeals earlier decision in Matter of Reza-Murillo. 

My blog post on the related Ninth Circuit case can be found here: http://www.sabrinadamast.com/journal/2015/6/10/ninth-circuit-finds-that-family-unity-benefits-do-not-qualify-as-an-admission-for-the-purpose-cancellation-of-removal-for-lawful-permanent-residents

The full text of Matter of Fajardo Espinoza can be found here: https://edit.justice.gov/sites/default/files/pages/attachments/2015/06/08/3840.pdf

Ninth Circuit Finds that Family Unity Benefits do not Qualify as an Admission for the Purpose Cancellation of Removal for Lawful Permanent Residents

In a decision earlier this week, the Ninth Circuit resolved tension between its case law and the Board of Immigration Appeals' case law on whether a grant of family unity benefits qualified as admission for the purpose of cancellation of removal for lawful permanent residents.  In 2005, the Ninth Circuit had determined that a grant of family unity benefits would qualify as an admission in any status, as required in the cancellation statute, in its decision in Garcia-Quintero v. Gonzales.  In 2010, the Board of Immigration Appeals published its decision in Matter of Reza-Murillo, in which it came to the opposite conclusion.  In its decision this week, the Ninth Circuit deferred to Matter of Reza-Murillo, finding that the Board of Immigration Appeals' interpretation of the word "admitted" to require a "lawful entry after inspection and admission" (a procedural regularity not required to be granted family unity benefits) to be reasonable.

The full text of Medina-Nunez v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/08/14-70657.pdf

Board Addresses Proper Standard for Evaluating Whether a Conviction Qualifies as a Crime of Violence

In a decision that only be described as "two steps backwards" for criminal immigration practitioners (like myself), the Board of Immigration Appeals (Board) issued a precedential decision finding that the proper inquiry for determining whether a conviction is for an aggravated felony crime of violence under 18 U.S.C. § 16(b)  is whether the conduct encompassed by the elements of the offense presents a substantial risk that physical force may be used in the course of committing the offense in the “ordinary case.”  In so finding, the Board discarded the standard outlined by the Supreme in Moncrieffe v. Holder which instructed courts to determine what the "least culpable conduct" criminalized by a statute is, and then determine if there is a categorical match between that conduct and the generic federal definition of a crime (in this case, the definition of a crime of violence outlined in 18 U.S.C. § 16(b)).  

The problem is that the Board failed to sufficiently explain how to evaluate what the "ordinary case" of conviction is under a particular statute.  It noted that the respondent in the case had not presented any cases in which Florida has prosecuted someone for felony battery where violent force was not used, but it did not discuss whether the presentation of such a case would mean that the ordinary prosecution still involved such force.  How many cases would the respondent have to find? 5? 10? Must they be published cases? At what point does the ordinary conduct criminalized by a statute include less culpable conduct than one might imagine? 

The full test of Matter of Francisco-Alonzo can be found here: http://www.justice.gov/sites/default/files/pages/attachments/2015/06/02/3839.pdf

First Circuit Finds that Agency Applied Incorrect Standard of Review to Motion to Reopen

Alan Soares Renaut sought to reopen an in absentia removal order on the basis that he received legally insufficient notice of his hearing.  The hearing notice was sent to the address provided by Renaut (which both he and a friend residing there confirmed was his mailing address) but was returned to the court as undeliverable.  

The Immigration Judge (IJ) denied his motion, finding that Renaut was made aware of his obligation to immediately notify the Immigration Court when he changed his address and he failed to do so. The IJ then found that although the hearing notice was returned to the Court as undeliverable, it had been sent to the Respondent at his last known address. Renaut appealed to the Board of Immigration Appeals (BIA), arguing that the IJ conflated the regulatory standards that govern the entering of an in absentia removal order and the requirements to reopen one. The BIA affirmed the IJ's decision, finding that Renaut evaded delivery of a properly sent hearing notice by relocating without providing the required change of address.

On appeal to the First Circuit, the court recognized that the statute governing notice still contemplates that an individual make not receive a hearing notice, even if it is properly mailed to that person's last known address.  Thus, an individual could successfully seek reopening if he could show that he complied with the address reporting requirements but still did not receive the notice.  Even though Renaut had physically left the address he had provided the court, he and his friend living there confirmed that he continued to receive mail there (in other words, that the address provided was still his mailing address).  Thus, the agency's conclusion that he was trying to evade delivery of the notice or shirk on his responsibility to notify the court of his new mailing address was unwarranted.  

The full text of Renaut v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-1766P-01A.pdf

Sixth Circuit Upholds Denial of CAT Claim and Limits Its Jurisdiction over Criminal Aliens

Jose Ventura-Reyes applied for protection under the Convention Against Torture (CAT).  He feared torture in the Dominican Republic because: (1) a politically influential Dominican family believed that he was responsible for the murder of their patriarch in the Dominican Republic; and (2) he was an informant for the U.S. Drug Enforcement Administration, allegedly resulting in the arrests of members of the drug-trafficking Gonzalez Molina family, which would seek revenge against him.  At the time of the death of the patriarch's death in the Dominican Republic, the Dominican authorities responded to the scene of the event (which involved multiple members of two families involved in a violent altercation) and intervened to end the confrontation.  Over the years following the events in the Dominican Republic, Ventura-Reyes returned to the Dominican Republic several times without ever being harmed.  His wife traveled several more times to the Dominican Republic and was never harmed.  The Immigration Judge denied his application for CAT protection, and the Board of Immigration Appeals affirmed.

On appeal, the Sixth Circuit first addressed its jurisdiction over Ventura-Reyes' case, and determined that because he was removable as a criminal alien, they had limited jurisdiction over his appeal, even though he was not charged with deportability for his criminal offenses.  Thus, the court would only have jurisdiction over constitutional claims and questions of law.  The court then affirmed the Immigration Judge's credibility determination with reference to Ventura-Reyes' witness, determined that Ventura-Reyes' challenge to an evidentiary ruling did not implicate a constitutional claim (and thus, was outside its jurisdiction to consider), and dismissed his challenge to the Immigration Judge's interpretation of the requirement of government acquiescence.  

The full text of Ventura-Reyes v. Lynch can be found here: http://www.ca6.uscourts.gov/opinions.pdf/15a0111p-06.pdf

Eighth Circuit Dismisses Appeal of Denied Asylum Application

Jorge Roberto Barillas-Mendez applied for asylum based on the physical and economic abuse he suffered at the hands of his aunt (with whom he lived).  She beat him every other day, and kept the money that Barillas-Mendez's father sent to support him.  He was unable to tell his parents about the abuse because his aunt listened to their phone conversations.  None of the neighbors were ever alerted to the abuse and the police were never informed.  Barillas-Mendez was also beaten by a second cousin who was a member of the MS-13 gang, and who believed that Barillas-Mendez was the member of a rival gang.

The Immigration Judge (IJ) denied Barillas-Mendez’s asylum application, concluded that Barillas-Mendez’s allegations of abuse suffered in Guatemala did not establish persecution or a well-founded fear of future persecution.  In addition, the actions by private individuals (i.e. Barillas-Mendez's aunt and cousin) would not amount to persecution, and Barillas-Mendez failed to show that the government was unwilling or unable to control his aunt and cousin.  Finally, the IJ determined that Barillas-Mendez failed to show that the alleged persecution was on account of a protected ground (political opinion or membership in a particular social group).

The Board of Immigration Appeals (Board) affirmed the IJ’s determination that Barillas-Mendez had not established past persecution in Guatemala because the physical abuse he suffered did not rise to the level of harm required to constitute persecution. The Board also agreed with the IJ that Barillas-Mendez had not established a well-founded fear of future persecution based on a protected ground, but the Board did not address the IJ’s conclusion that abuse by the aunt and cousin as private individuals did not constitute persecution.

On appeal, the Eighth Circuit agreed that the Board was not compelled to find that the abuse Barillas-Mendez experienced (which resulted resulted in bruises, red marks, and a bloody mouth) rose to the level of persecution.  The fact that Barillas-Mendez was a minor when he experienced the harm did not compel the conclusion that it qualified as persecution.  

The full text of Barillas-Mendez v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/06/141444P.pdf

Unpublished Ninth Circuit Decision on Exceptions to the One-Year Filing Deadline for Asylum

In a brief but interesting decision, the Ninth Circuit reminded the agency of the proper standard for evaluating whether changed country conditions can justify the untimely submission of an asylum application.  Specifically, the Ninth Circuit stated that the applicant's subjective state of mind is not the only relevant factor in the analysis.  "Whether Enkhbold’s elevation from Mayor of Ulaan Bataar to Prime Minister of Mongolia was the real reason petitioners decided to file their asylum applications or just an 'after thought,' as the IJ concluded, has no role in the changed circumstances analysis.  The correct legal standard is whether changed country conditions materially affect the applicant’s eligibility for asylum.  This standard does not preclude an individual who has always feared persecution from seeking asylum because the risk of that persecution increases. . . . An applicant is not required to file for asylum when his claim appears to him to be weak; rather he may wait until circumstances change and the new facts make it substantially more likely that his claim will entitle him to relief. In such cases, we may recognize changed circumstances."  An excellent summary of what is sometimes a difficult issue to argue before the Immigration Judge - clients do not have to file for asylum the instant they have a fear of returning, but rather, can wait until events in their home country change and their asylum claims strengthen.

The full text of Tomsuren and Burentugs v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/memoranda/2015/05/28/11-71777.pdf

Seventh Circuit Finds that a Lawyer Provided Ineffective Assistance

Ashraf Habib was accused of gaining his lawful permanent residency through fraud.  Specifically, the Government alleged that Habib gained his residency through marriage to a US citizen, but that at the time, he was still married to a woman in Pakistan.  Habib failed to disclose his Pakistani wife or three children  on his application for residency or for his application for citizenship.  At trial, Habib's attorney denied the Government's allegation that Habib’s marriage to his deceased U.S. citizens spouse was not legally valid because not divorced from his wife in Pakistan.  His attorney, however, seemingly contradicted himself by admitting the materially identical allegation that Habib was not validly married to a United States citizen when he gained his residency.  His attorney also admitted that Habib had three children in Pakistan, but denied that Habib was removable for having committed fraud.

At the beginning of Habib's merits hearing, his attorney submitted a divorce decree which purported to show that Habib had divorced his Pakistani wife 2 years before marrying his American wife.  The attorney stated that he “believed” he previously had submitted a copy of this divorce decree to the government.  But when the government’s attorney disputed this assertion, the attorney said that he “just got it recently.”  The Immigration Judge (IJ) stated that Habib could be questioned about the divorce decree during his testimony but reserved ruling on the admissibility of the document.

Habib then testified about his marriage to his deceased U.S. citizen spouse and the reason he omitted his Pakistani wife and children from his immigration applications.  When asked about his divorce, Habib testified that he was divorced from his first wife in 1999, but the Government asserted that this was contradicted by his attorney's admission to the factual allegation about his invalid second marriage.  "In response, Habib’s lawyer mumbled something about a 'mistake' but did not move to retract the admission of [the] allegation."  

The IJ determined that Habib’s failure to disclose his children and his first marriage was material because the misrepresentation “cut off [a] line of inquiry and prevented the Government from conducting a full analysis of all factors relevant to the validity of” Habib’s second marriage.  The IJ noted that the divorce decree was an untimely submission and emphasized that Habib's attorney initially admitted that his second marriage was invalid and never sought to retract that admission.

Habib retained new counsel, appealed his case to the Board of Immigration Appeals (BIA), and moved to reopen his proceedings on account of ineffective assistance of counsel.  He claimed that he had timely provided the divorce decree to his prior attorney.  His prior attorney did not respond to these allegations, but instead, another attorney at his firm claimed that the document was not timely received by the office.  Habib denied the accuracy of this statement.  The BIA affirmed the IJ's decision and denied Habib's motion to reopen, stating that it could not conclude that Habib's prior attorney's failure to timely submit the divorce decree resulted from “deficient performance” because neither Habib nor his former lawyer specified precisely when Habib gave the divorce decree to his prior attorney.  The BIA also determined that Habib had not shown he was prejudiced by his prior attorney's admission that his second marriage was invalid because the Government submitted substantial evidence challenging the validity of that marriage and Habib had admitted during testimony that he “‘lied on purpose’ when he failed to mention his first wife and his children” in his applications.

The Seventh Circuit disagreed, finding that Habib's prior attorney's admission effectively waived Habib’s defense to removal, and an attorney’s waiver of a complete defense to removal prejudices the client.  In addition, the fact that the Government had put forward evidence that Habib had failed to disclose his first wife and children was no dispositive.  If Habib could prove that his second marriage was valid, he could demonstrate that he was still eligible for residency, despite the omissions in his application.  For this reason, his prior attorney's failure to timely submit the divorce decree was also substandard performance that prejudiced Habib's case.

The full text of Habib v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D05-29/C:14-3370:J:Williams:aut:T:fnOp:N:1560163:S:0

Ninth Circuit Addresses Third-Degree Child Molestation in Washington

In the context of a federal criminal case, the Ninth Circuit determined that a conviction for third-degree child molestation in Washington did not qualify as a sexual abuse of a minor aggravated felony.  To constitute sexual abuse of a minor, a conviction must contain the following four elements:  (1) a mens rea level of knowingly; (2) a sexual act; (3) with a minor between the ages of 12 and 16; and (4) an age difference of at least four years between the defendant and the minor.  Alternatively, the conviction must contain the following three elements: (1) the conduct proscribed is sexual; (2) the statute protects a minor; and (3) the statute requires abuse. 

The court concluded that the Washington statute at issue was indivisible, and was missing required elements from the second definition of sexual abuse of a minor (which was the definition at issue in the current case).  Specifically, the Washington statute criminalizes touching over clothing as opposed to the generic offense’s requirement of skin-to-skin contact.  Thus, it is missing the element of abuse required by the second definition of sexual abuse of a minor.

The full text of US v. Martinez can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/05/28/12-30185.pdf

BIA Clarifies Standards of Review in Asylum Adjudications

Last week, the Board of Immigration Appeals (BIA) addressed the appropriate standards of review in the asylum context.  Specifically, the BIA overturned its previous precedent and determined that an Immigration Judge's predictions about the likelihood of future events are factual findings, subject to a clearly erroneous standard on review.  However, whether an asylum applicant has established an objectively reasonable fear of persecution based on the events that the Immigration Judge found may occur upon the applicant’s return to the country of removal is a legal determination that remains subject to de novo review.  Accordingly, the BIA "will accept the underlying factual findings of the Immigration Judge unless they are clearly erroneous, and [] will review de novo whether the underlying facts found by the Immigration Judge meet the legal requirements for relief from removal or resolve any other legal issues that are raised."

The full text of Matter of Z-Z-O- can be found here: https://edit.justice.gov/sites/default/files/pages/attachments/2015/05/26/3838.pdf 

Supreme Court Issues a Decision on the Immigration Consequences of Drug Paraphernalia Convictions

The U.S. Supreme Court issued a great decision today interpreting the removability provisions related to possession of paraphernalia.  The Court determined that a conviction for possession of paraphernalia must be linked to a controlled substance defined in the federal Controlled Substances Act in order to have immigration consequences.  In so finding, the Court refused to defer to the Board of Immigration Appeals' (BIA) decision in Matter of Martinez Espinoza, which had held that paraphernalia convictions could carry immigration consequences regardless of whehter they were linked to a particular controlled substance because they were tied to the "drug trade in general."  "Drug possession and distribution convictions trigger removal only if they necessarily involve a federally controlled substance, while convictions for paraphernalia possession, an offense less grave than drug possession and distribution, trigger removal whether or not they necessarily implicate a federally controlled substance. The incongruous upshot is that an alien is not removable for possessing a substance controlled only under Kansas law, but he is removable for using a sock to contain that substance. Because it makes scant sense, the BIA’s interpretation, we hold, is owed no deference."

The full text of Mellouli v. Lynch can be found here: http://www.supremecourt.gov/opinions/14pdf/13-1034_3dq4.pdf

Ninth Circuit Applies Immigration Law in the Mariana Islands

Etumai Mtoched, a citizen of Malau, was admitted to the Commonwealth of the Northern Mariana Islands (CNMI) before U.S. immigration laws were extended to the CNMI.  Mtoched was convicted of assault with a dangerous weapon under CNMI laws in 1994.  In 2008, U.S. immigration laws were extended to include CNMI, and shortly thereafter, removal proceedings were initiated against Mtoched based on his conviction, which the Department of Homeland Security alleged qualified as a crime involving moral turpitude (CIMT).  The Immigration Judge (IJ) found that the conviction was, in fact, a CIMT, and determined that applying the U.S. immigration laws to Mtoched was not an impermissible retroactive application of law.  Mtoched indicated an intention to apply for a waiver under section 212(h) of the Immigration and Nationality Act (INA), but the IJ denied this request, finding that because Mtoched had been admitted to the United States, he needed to apply for the waiver in conjunction with an application for adjustment of status.  On appeal, the Board of Immigration Appeals affirmed the IJ's decision regarding whether Mtoched's conviction qualified as a CIMT and whether he was eligible for a waiver under section 212(h) of the INA, but declined to address his retroactivity argument, finding that it was beyond the scope of its authority to address.

On appeal to the Ninth Circuit, the court determined that extending U.S. immigration laws to CNMI did not violate the CNMI's right to self-government.  In addition, because Mtoched's conviction would have made him deportable under CNMI's immigration laws in effect at the time of his conviction, extending U.S. immigration law to him did not change his legal position.  Since Mtoched did not demonstrate that he would have been eligible for any form of immigration relief under the prior laws, the extension of U.S. laws did not impair of any of his rights.

With regard to whether Mtoched's conviction qualified as a CIMT, the court noted that the statute could be divided into three distinct offenses: (1) threatening to cause injury; (2) attempting to cause injury; or (3) purposely causing injury.  Because Mtoched was charged under the third offense, his conviction was a CIMT.  In support of this conclusion, the court noted that non-fraudulent CIMTs almost always involve an intent to harm another person.

Finally, the court affirmed prior Board case law indicating that individuals admitted to the United States many not seek a stand-alone waiver under sectino 212(h) of the INA.  As Mtoched was considered to have been admitted in nonimmigrant status, he could not seek the stand-alone waiver.

The full text of Mtoched v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/05/22/13-70295.pdf

Third Circuit Applies Material Support for Terrorism Bar

In Sesay v. Attorney General, the Third Circuit, faced with the tragic plight of a citizen of Sierra Leone forced to perform menial tasks for a rebel group who repeatedly beat him, affirmed the Board of Immigration Appeals' determination that Sesay's actions qualified as material support to a terrorist group.  Moreover, the Court declined to read a duress exception into the statute, and noted that only the Department of Homeland Security has the authority to waive the material support bar based on duress.

The full text of Sesay v. Attorney General can be found here: http://www2.ca3.uscourts.gov/opinarch/142996p.pdf

Fifth Circuit Addresses "Admitted in any Status" for Cancellation of Removal

Last week, the Fifth Circuit issued a terrific decision construing the requirements for cancellation of removal for lawful permanent residents.  Specifically, the court addressed what it means to be "admitted in any status" for the requisite 7 years.  The petitioner had been granted his lawful permanent residence less than 7 years prior to the commission of a controlled substance offense, but more than 7 years after he was waved into the United States as a passenger in a car.  The Board of Immigration Appeals had previously ruled that such a "wave through" constituted an admission, but in this case, had found that "admission in any status" requires admission in a lawful status.  The Fifth Circuit disagreed, and found that a wave-through was an admission in "any status," regardless of whether that status was legal or illegal, and such, the petitioner had the necessary 7 years following admission in any status to qualify for cancellation of removal for lawful permanent residents.

The full text of Tula-Rubio v. Lynch can be found here: http://www.ca5.uscourts.gov/opinions/pub/14/14-60183-CV0.pdf

Ninth Circuit Addresses Validity of an Appeal Waiver

In what can only be described as a truly fantastic decision, the Ninth Circuit granted a petition for review, finding that the petitioner did not knowingly, voluntarily, and intelligent waive his right to appeal when the Immigration Judge incorrectly advised him that he had been convicted of an aggravated felony and was ineligible for any form of immigration relief.  The court noted that under current caselaw AND caselaw in existence at the time of the Immigration Judge's decision, a conviction for grand theft in California was not categorically a theft offense because it included theft of labor and theft by false pretenses, both of which fell outside the generic definition of a theft offense. 

The full text of Garcia v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/05/20/11-73406.pdf

Eighth Circuit Dismisses Appeal of Cancellation of Removal Denial

For the third time this year, the Eighth Circuit has dismissed an appeal of a cancellation of removal application, finding that the agency's determination of whether a qualifying relative will suffer exceptional and extremely unusual hardship is not subject to federal court review.

The full (but brief) text of Salas-Caballero v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/05/142556P.pdf

Fifth Circuit Interprets Prior Derivative Citizenship Laws

Hamid Kamara was born in Sierra Leone in 1981. In 1990, his parents divorced in Texas.  Because Kamara was still residing in Sierra Leone, the state court did not order that one parent or the other receive custody of Kamara.  He later entered the United States as a visitor, and in 1994, he received his lawful permanent residence through his mother.  In 1998, when Kamara was 16 years old, his mother became a naturalized U.S. citizen.  Kamara was living with his mother at the time.  When Kamara applied to United States Citizenship and Immigration Services for proof that he had derived citizenship through his mother, his request was denied.  Kamara renewed this argument before the Immigration Judge, who found that he had not shown he was in his mother's "sole legal custody" at the time of her naturalization, and thus, could not establish his citizenship claim.  

On appeal, the Fifth Circuit determined that the derivative citizenship laws in force at the time of Kamara's 18th birthday only required him to show that he was in his mother's "actual uncontested custody," and not her "sole legal custody."  The "actual uncontested custody" standard was the correct one to apply when there is no judicial order regarding legal custody.  Because there was a factual dispute about whether Kamara lived in his mother's uncontested custody, the Fifth Circuit transferred the case to a District Court to adjudicate his citizenship claim.

The full text of Kamara v. Attorney General can be found here: http://www.ca5.uscourts.gov/opinions/pub/13/13-60807-CV0.pdf