Ninth Circuit Denies CAT Claim for Salvadoran With Tattoos

Salvador Amaya Andrade sought protection under the Convention Against Torture based on a fear of torture in El Salvador because he had two tattoos bearing his initials and his girlfriend's initials.  Though the Board of Immigration Appeals took note that deportees arriving in El Salvador were subject to arbitrary investigations and detentions, and that former gang members were subject to reprisals, and took note of the evidence of widespread violent crime, gang-related violence, impunity from prosecution and judicial corruption, and vigilante squads, it ultimately concluded that Andrade had not proved that “deportees (with or without tattoos) are likely to experience mistreatment rising to the level of torture.”  On appeal, the Ninth Circuit affirmed, finding that "[s]ubstantial evidence supported the BIA’s denial of relief on the ground that Andrade’s individual characteristics, being deported from a richer country and bearing non-gang tattoos, failed to establish a probability of torture upon his return to El Salvador."

Though the outcome for Mr. Andrade was not optimal, the Ninth Circuit's conclusion implies a tacit understanding that individuals with gang-related tattoos (or with tattoos that might be perceived as gang-related) might be able to demonstrate a sufficient probability of torture in El Salvador to warrant a grant of protection under the CAT.

The full text of Andrade v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/27/12-70803.pdf

Ninth Circuit Addresses Derivative Citizenship for Stepchildren of U.S. Citizens

The Ninth Circuit determined that step-children of U.S. citizens do not derive citizenship under the immigration laws, which provides citizenship only to the naturally born and legally adopted children of U.S. citizens.  In so doing, the Ninth Circuit agreed with the Board of Immigration Appeals' decision in Matter of Guzman-Gomez.

The full text of Acevedo v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/24/12-71237.pdf

Ninth Circuit Finds that Jurisdiction-Stripping Provision does not Apply to Judicial Review of a Denial of a Continuance

Typically, the federal courts have limited jurisdiction to review a final order of removal when the petitioner has been ordered removed based on criminal grounds.  The Ninth Circuit has held, in the context of a denied motion to continue, that the jurisdiction-stripping provisions do not apply to review of procedural motions that are independent of the merits of the removal order.

The full text of Garcia v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/18/12-70778.pdf

Ninth Circuit Finds that Attorney Provided Ineffective Assistance of Counsel

The petitioner's prior attorney had advised him to waive appeal of the Immigration Court's denial of his cancellation of removal application, and instead, pursue consular processing based on his marriage to a U.S. citizen.  The problem with this proposed course of action is that the petitioner was subject to the so-called "permanent bar" to admissibility under section 212(a)(9)(C) of the Immigration and Nationality Act.  Thus, he was not eligible to obtain his residency through consular processing.  The Ninth Circuit determined that this advice constituted substandard conduct by the prior attorney, and that the forfeiture of appeals rights prejudiced the petitioner's case.  Thus, the court determined that the petitioner's motion to reopen based on ineffective assistance of counsel was improperly denied.

The full text of Salazar-Gonzalez v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/20/11-73600.pdf

Eighth Circuit Finds that Petitioner Made a False Claim to US Citizenship on an Electronic I-9 Form

The Eighth Circuit addressed the use of an electronic I-9 form, which pre-populated the applicant's biographical data and selected the US citizen box by default.  Though the petitioner argued that the selection of the U.S. citizen box was accidental, the court found that by submitting the form under penalty of perjury, the petitioner had adopted all the assertions in it.  Because the petitioner had made a false claim to U.S. citizenship, he was not eligible for lawful permanent residence based on his marriage to a U.S. citizen.

The full text of Etenyi v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/08/143397P.pdf

Ninth Circuit Finds that California Theft Convictions are never Aggravated Felonies

In a follow up to several published and unpublished decisions that have suggested this holding, the Ninth Circuit issued a published decision finding that California theft crimes (which include theft of labor and theft by false pretenses) are overbroad and indivisible compared to the generic definition of a theft offense.  As such, they will never qualify as theft aggravated felonies, regardless of the sentence imposed.

The full text of Lopez-Valencia v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/17/12-73210.pdf

First Circuit Dismisses Appeal of a Denied Motion to Reopen

In a published decision, the First Circuit dismissed the appeal of a petitioner who claimed to have not received legally sufficient notice of his immigration court hearing.  Jonathan Ledesma-Sanchez.  Ledesma-Sanchez was served with a Notice to Appear in March 2010, but the Department of Homeland Security did not file the Notice to Appear with the Immigration Court until February 2011.  In the interim, Ledesma-Sanchez moved, but did not provide his updated address to the Immigration Court.  When the Immigration Court mailed a notice of his hearing, they mailed it to his old address, and he did not receive it.

The agency and the First Circuit both faulted Ledesma-Sanchez for failing to update his address with the Immigration Court, even though the Department of Homeland Security had not filed the Notice to Appear at the time of his move.  Nevertheless, this case illustrates a common consequence of the Department of Homeland Security's failure to file a Notice to Appear in a timely fashion.

The full text of Ledesma-Sanchez can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-1710P-01A.pdf

Eighth Circuit Finds that a California Forgery Conviction is Categorically a Crime Involving Moral Turpitude

In a relatively unsurprising decision, the Eighth Circuit determined that a conviction under section 472 of the California Penal Code (forgery) is categorically a crime involving moral turpitude because each act criminalized under the statute must be committed with an intent to defraud.

The full text of Miranda-Romero v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/08/143387P.pdf

Ninth Circuit Addresses Immigration Consequences of a Nevada Conviction for Possession of Paraphernalia

In light of the Supreme Court's recent decision in Mellouli v. Lynch, the Ninth Circuit held that a conviction for violating Nevada's possession of paraphernalia statute is not categorically a controlled substance offense.  The court remanded the case for the agency to determine whether the modified categorical approach should be employed, and if so, what impact the application of the modified categorical approach would have on the petitioner's application for relief.

The full text of Madrigal-Barcenas v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/10/10-72049.pdf

BIA Addresses Jurisdiction in Asylum-Only Proceedings and the Necessary Instructions for Biometrics

In a published decision, the Board of Immigration Appeals (Board) determined that it has no jurisdiction to determine whether asylum-only proceedings were improvidently initiated by the Department of Homeland Security (DHS).  The respondent alleged that he did not enter the United States under the Visa Waiver Program, and thus, placing him in asylum-only proceedings was inappropriate.  The Board suggested that the federal courts may be the proper forum for litigating this issue.

In addition, the Board held that when a respondent indicates an intention to apply for a form of immigration relief that requires the DHS to collect his biometric information, the Immigration Judge should do all of the following on the record: (1) ensure that the DHS has advised the applicant of the need to provide biometrics and other biographical information and has furnished the appropriate instructions; (2) inform the applicant of the deadline for complying with the requirements of which he has been notified; and (3) inform the applicant of the consequences of noncompliance, including the possibility that the application will be deemed abandoned and dismissed, unless the failure to comply resulted from good cause.

The full text of Matter of D-M-C-P- can be found here: http://www.justice.gov/eoir/file/643221/download

Sixth Circuit Grants Petition for Review of a Frivolous Asylum Application Determination

Wisam Yousif applied for asylum on the basis of past persecution he had suffered in Iraq as a Chaldean Christian.  Throughout the proceedings, Yousif provided contradictory evidence, leading the Immigration Judge to conclude that he had fabricated the entire narrative of past persecution.  Four years after the application was first filed, the Immigration Judge denied it and deemed it o be frivolous.  Nevertheless, the Department of Homeland Security conceded at that time that a pattern or practice of persecution against Chaldean Christians was occurring in Iraq, and stipulated to a grant of withholding of removal for Yousif.  

Yousif appealed, noting that the evidentiary standard for withholding of removal is higher than that for asylum, and thus, if he was eligible for withholding of removal on the basis of a clear probability of future persecution, he was necessarily eligible for asylum based on a well-founded fear of future persecution, even if his allegations of past persecution were fabricated.  Essentially, he argued that his allegations of past persecution were immaterial because they did not change the outcome - he was statutorily eligible for asylum.

On appeal, the Sixth Circuit stated that the frivolous nature of an asylum application must be judged based on circumstances in existence at the time of filing, not at the time of adjudication.  Thus, if at the time Yousif filed his application, he would have been eligible for asylum based on a well-founded fear of future persecution due to a pattern or practice of persecution of Chaldean Christians in Iraq, his allegations of past persecution (even if fabricated) were immaterial, and could not support a frivolous finding.  If, however, the conditions in Iraq at the time of filing would not have given rise to a well-founded fear of persecution absent some past persecution, Yousif's fabricated allegations were material, and could support a frivolous finding.  The court remanded for the Immigration Judge to evaluate the materiality of the fabricated allegations at the time the application was filed.

The full text of Yousif v. Lynch can be found here: http://www.ca6.uscourts.gov/opinions.pdf/15a0181p-06.pdf

Fifth Circuit Finds that Birth on a Military Base Abroad does not Confer Birthright Citizenship

Jermaine Thomas was born on a U.S. military base in Germany to a naturalized U.S. citizen father and a foreign national mother.  Thomas' father had not been physically present in the United States prior to his birth for a sufficient period of time to transmit citizenship to him.  When Thomas placed in removal proceedings for criminal activity, he claimed to have been born in the United States by virtue of his birth on a military base, and thus, to be entitled to birthright citizenship under the Fourteenth Amendment.  The Fifth Circuit disagreed, finding that birthright citizenship does not extend to military bases outside the territorial boundaries of the United States.

The full text of Thomas v. Lynch can be found here: http://www.ca5.uscourts.gov/opinions/pub/14/14-60297-CV0.pdf

8th Circuit Finds that a Minnesota Conviction for Obstruction of Legal Process is not a Crime of Violence

The Eighth Circuit, addressing a conviction under Minn. Stat. § 609.50, subd. 2(2), determined that the conviction was not a crime of violence aggravated felony.  Although the statute prescribed conduct involving "force or violence," the state law definition of this phrase required less than the "violent force" required under the definition of a crime of violence.  Thus, the conviction did not qualify as an aggravated felony.

The full text of Ortiz v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/08/142428P.pdf

Ninth Circuit Finds that CA Petty Theft Offenses are Overbroad and Indivisible

In a short unpublished case, the Ninth Circuit determined that California's definition of petty offense is categorically overbroad and indivisible as compared to the generic definition of a theft offense.  As such, it can never be a theft aggravated felony, regardless of the sentence imposed.

The full text of Chavez v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/memoranda/2015/08/06/11-73977.pdf

Sixth Circuit Addresses Retroactivity of AEDPA and IIRIRA

The petitioner was convicted in 1995 of a shoplifting offense.  At the time, his conviction would not have posed a statutory bar to suspension of deportation.  However, when the Government ultimately initiated removal proceedings against him 2010, suspension of deportation had been replaced with cancellation of removal, and the conviction was a bar to cancellation of removal.  The Immigration Judge determined that the changes in the law brought about by AEDPA and IIRIRA that prevented him applying for suspension of removal (which had been abolished) and rendered him ineligible for cancellation of removal applied retroactively.

On appeal to the Board of Immigration Appeals, the petitioner requested a remand because his U.S. citizen daughter had turned 21 and filed a petition to immigrate him.  The Board denied his motion, finding that he did not merit remand as a matter of discretion, given his 4 DUI convictions and other criminal history.  The Board affirmed the Immigration Judge's retroactivity analysis.

The Sixth Circuit affirmed the agency's decisions, finding the language of AEDPA to be clearly retroactive.  The Sixth Circuit also affirmed the Board's discretionary denial of the motion to remand, finding the petitioner had not presented sufficient evidence of equities or rehabilitation to the Board to compel an exercise of discretion.

The full text of Velasco-Tijero v. Lynch can be found here: http://www.ca6.uscourts.gov/opinions.pdf/15a0180p-06.pdf

Ninth Circuit Addresses Arizona Aggravated Assault Statute

In an unpublished decision, the Ninth Circuit determined that a conviction under Arizona Revised Statutes §§ 13-1203(A)(3) and 13-1204(A)(8)(e) for aggravated assault is not categorically a crime involving moral turpitude.  The court recognized that under Arizona law, the intent predicates in § 13-1203(A)(3) constitute only means of committing the crime of assault, not separate elements.  Arizona courts have held that  statutes that prohibit one act committed with different mental states are construed as defining a single offense, and therefore, a jury need not unanimously decide which subset mental state the defendant had while committing the crime. As such, the intent predicates are not alternative elements.  

The full text of Govindarajan v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/memoranda/2015/08/05/11-71533.pdf

Ninth Circuit Analyzes Sufficiency of a Criminal Complaint

In an unpublished disposition, the Ninth Circuit found an insufficient connection between the minute order and a complaint.  The minute order stated that the defendant pled guilty to count one in the complaint.  However, it also stated "DA to file amended info."  The Court found that the Government had failed to prove by clear and convincing evidence that the defendant had pled guilty to count one as enumerated in the complaint, and thus, under the modified categorical approach, the complaint was not sufficient to establish the identity of the substance involved in the offense.

The full text of Sanchez-Nino v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/memoranda/2015/08/04/13-71814.pdf

Eighth Circuit Remand for Voluntary Departure

In an interesting procedural posture, the Eighth Circuit affirmed all of the agency's denials of a petitioner's applications for asylum, withholding of removal, and protection under the Convention Against Torture, as well as the denial of his motion to reopen.  The Immigration Judge had denied the petitioner's application for voluntary departure as well, which he had appealed to the Board of Immigration Appeals.  The Board of Immigration Appeals had failed to address the voluntary departure denial, and the Eighth Circuit remanded specifically for the Board of Immigration Appeals to issue a decision on the voluntary departure application.

The full text of Ademo v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/07/132621P.pdf

Eighth Circuit Permits Immigration Judge to Consult Non-Traditional Documents to Determine if a Non-Citizen was Convicted of a Crime

Curtis Fraser was initially granted lawful permanent residence through his U.S.-citizen wife.  Subsequently, the Department of Homeland Security (DHS) sought to strip him of his residency, arguing that he had previously been convicted in Canada of possession of cocaine for trafficking.  To support this allegation, the DHS submitted a Trial Disposition and an Information to the Court.  The Information identified the offense charged as possession of cocaine for the purpose of trafficking. The Trial Disposition referred to an attached indictment on which Fraser had been arraigned, but the Trial Disposition did not identify the offense to which Fraser pleaded guilty and for which he was sentenced. The government did not produce a document with the title “Indictment.” After a continuance, the government addressed this deficiency by providing the Immigration Judge (IJ) with a copy of the section of the Canadian Criminal Code that defines “indictment” to include an “information.”

Fraser argued that these records were insufficient to prove he had been convicted of an offense that rendered him inadmissible.  First, the Information was filed in Saskatchewan.  The Trial Disposition, in contrast, was filed in Manitoba.  Thus, Fraser argued there was not sufficient evidence to support the conclusion that the two documents referred to the same case.  Second, the Trial Disposition referred to an “indictment,” and the DHS only provided the Information. Fraser argued that without the referenced indictment, the Court could not know what offense he actually pleaded guilty to, since the Trial Disposition was silent on this issue.  Finally, the Information was the only document presented to the IJ that specified cocaine as the drug involved in the conviction. Had he been convicted of simple possession of marijuana, Fraser argued, he would be eligible for a waiver. 

Fraser also argued the IJ improperly relied on a police record and pardon documents to determine whether he had been convicted of an offense that made him inadmissible.  Fraser asserted that these additional documents were not “documents or records” the Immigration and Nationality Act identifies as ones that “shall constitute proof of a criminal conviction.”  The IJ did consider an uncertified police record, which contained Fraser’s name and identified a conviction for possession of a narcotic for the purpose of trafficking under the Narcotic Control Act. The IJ also considered documentation that showed Fraser received a pardon in Canada for a conviction for breach of the Narcotic Control Act with the same date and case number as the Information and the Trial Disposition.

The First Circuit approved of the IJ's review of these extra documents, finding that in combination, they established by clear and convincing evidence that Fraser had been convicted of an offense involving cocaine.  This use of uncertified police reports and other documents is troubling, and seems contrary to the Supreme Court's Taylor approach, which limits the documents a Court may consider to determine the immigration consequences of a conviction.  

The full text of Fraser v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/07/143187P.pdf

First Circuit Denies Petition for Review of Untimely Motion to Reopen

Rei Feng Wang initially applied for asylum based on China's One Child Policy and based on his testimony against the criminal organization that had smuggled him into the United States.  His application was denied.  Fifteen years later, he filed a motion to reopen based on changed country conditions, alleging that he had become a practicing Christian in the intervening years and that conditions for Christians in China had worsened during that time.  The agency denied his motion to reopen.  On appeal, the First Circuit agreed that Wang's baptism was a change in personal circumstances, not a change in country conditions, and that his country conditions evidence did not show a material change in country conditions.  As such, the First Circuit declined to address the circuit split as to whether a mixed petition - one presenting changes in both personal and country conditions - is sufficient to justify reopening.

The full text of Wang v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-1845P-01A.pdf