Third Circuit Addresses Whether Misinformation Provided by a Government Employee May Toll the Filing Deadline for a Motion to Reopen

In an unpublished decision, the Third Circuit suggested that misinformation from a government employee (namely, an ICE officer who failed to inform him that he was eligible for bond or that he could seek relief from removal, and who instead convinced him to sign an expedited order of removal) may support an equitable tolling argument for a motion to reopen.  This equitable tolling could turn an untimely motion to reopen into a statutory motion to reopen (not subject to the post-departure regulatory bar) instead of leaving it as a sua sponte request for reopening.

The full text of Valdivinos-Lopez v. Lynch can be found here: http://www2.ca3.uscourts.gov/opinarch/144802np.pdf

Tenth Circuit Addresses Retroactivity of Matter of Briones

In 2005, the Tenth Circuit issued Padilla-Caldera v. Gonzales (Padilla-Caldera I), in which it determined that a non-citizen who was inadmissible under section 212(a)(9)(C)(i)(I) of the INA (re-entering or attempting to re-enter the United States without admission after accruing at least one year of unlawful presence) could seek adjustment of status under section 245(i) of the INA.  In 2007, the Board of Immigration Appeals disagreed with this conclusion in Matter of Briones, and in 2011, the Tenth Circuit deferred to the Briones decision in Padilla-Caldera II.  In the instant decision, the Tenth Circuit addressed the situation of an applicant who filed for adjustment of status after the decision in Padilla-Caldera I and before the decision in Briones.  The court found that the applicant has reasonably relied on the decision in Padilla-Caldera I, as such Briones did not apply retroactively to him. 

The full text of De Niz Robles v. Lynch can be found here: https://www.ca10.uscourts.gov/opinions/14/14-9568.pdf

First Circuit Construes Burden of Proof for Relief

In a published decision, the First Circuit addressed whether a non-citizen could meet his burden of proof to establish eligibility for relief with an inconclusive record of conviction.  Peralta Sauceda was convicted under an assault statute in Maine with two prongs.  One of these prongs would qualify as a crime of domestic violence - rendering Peralta Sauceda ineligible for cancellation of removal for non-lawful permanent residents - while the other would not.  However, the records available did not specify under which prong he had been convicted, and he was unable to obtain any additional records from the criminal court.  As such, the First Circuit found that he had not met his burden to prove his eligibility for cancellation of removal for non-lawful permanent residents.

The full text of Peralta Sauceda v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-2042P-01A.pdf

Ninth Circuit Finds 18 U.S.C. 16(b) Unconstitutionally Vague

In by far the biggest "crimmigration" case of the year, the Ninth Circuit has invalidated the definition of a crime of violence under 18 U.S.C. 16(b), finding the phrase "substantial risk" to be unconstitutionally vague.  The court relied on the Supreme Court's decision this summer in Johnson v. United States which invalidated the similarly worded residual clause of the Armed Career Criminal Act (the residual clause refers to crimes that involve a "significant risk" that force will be employed) on vagueness grounds.

You can read my blog post on Johnson here: http://www.sabrinadamast.com/journal/2015/6/26/supreme-court-invalidates-the-acca-residual-clause-disavows-the-ordinary-case-test

The full text of Dimaya v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/10/19/11-71307.pdf

Ninth Circuit Defers to BIA's Interpretation of the Stop Time Rule

In a published decision, the Ninth Circuit deferred to the Board of Immigration Appeals' decision in Matter of Camarillo.  In so doing, it determined that service of a Notice to Appear, even if the Notice to Appear is missing the time and date of the first hearing, is sufficient to invoke the "stop-time" rule, and the non-citizen will cease to accrue continuous physical presence for the purpose of cancellation of removal.

The full text of Moscoso-Castellanos v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/10/13/12-72693.pdf

Seventh Circuit Denies Asylum Application Because Petitioner did not Submit Sufficient Corroborating Documentation

In a published decision, the Seventh Circuit affirmed the denial of asylum to an applicant who provided credible testimony, but who failed to provide sufficient corroborating documentation of the harm he suffered in Mongolia and the reasons he did not apply for asylum in several other countries that he traveled to.  This decision reinforces that the REAL ID Act permits, but does not require, an Immigration Judge to grant an asylum application when the applicant provides credible testimony, but does not provide reasonably available corroborating documentation.

The full text of Darinchuluun v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D10-08/C:14-2212:J:Ripple:aut:T:fnOp:N:1636163:S:0

Sixth Circuit Addresses 2014 BIA Precedent Decisions on Asylum

In an unpublished disposition, the Sixth Circuit addressed the impact on asylum law of the Board of Immigration Appeals' (Board) 2014 decisions in Matter of M-E-V-G- and Matter of W-G-R-.  The court held that these decisions did not substantially alter the legal definition of a particular social group, and thus, they did not warrant reopening of proceedings.  The court relied on the Board's statements that its case law never truly required a particular social group to be "ocularly visible," and downplayed the importance of the Board's recognition that its past cases were inconsistent on this issue.  

This is a surprising and disappointing decision.  The Board's 2014 decisions were intended to bring uniformity to the definition of a particular social group - by definition, they recognized a lack of uniformity in prior decisions.  They also recognized that the same group may be socially distinct and particularized in one society, but not in another, and that the evidence in the record may support a finding of a cognizable particular social group in one case, but not support a finding of cognizability for the same group in a different case with a different evidentiary record.  The Sixth Circuit's conclusion that the petitioner could not have reasonably believed before these decisions that he was not eligible for asylum (because his proposed group had been consistently rejected in prior cases), but after these decisions, believed he could present evidence of the social distinction and particularity of his proposed group in his society is flawed.  It misses the point that under W-G-R- and M-E-V-G-, each proposed group must be evaluated based on the evidentiary record presented in that case.

The full text of Alvarez-Mejia v. Lynch can be found here: http://www.ca6.uscourts.gov/opinions.pdf/15a0686n-06.pdf

Ninth Circuit Finds that CA Conviction for Possession of Child Pornography is not an Aggravated Felony

The Ninth Circuit compared the federal child pornography possession statute (18 U.S.C. § 2252(a)(4)(B)) and the California child pornography possession statute (California Penal Code § 311.11(a)) and determined that the California statute encompassed broader conduct than the federal statute.  Specifically, the federal definition of “sexually explicit conduct” includes only five types of conduct: (i) sexual intercourse, (ii) bestiality, (iii) masturbation, (iv) sadistic or masochistic abuse, and (v) lascivious exhibition of the genitals or pubic area.  The California statute includes all of these acts, but also includes include “any lewd or lascivious sexual act," which includes any touching on any part of a child's body.  This catch-all provision renders the California statute broader than the federal analogue, and thus, it is not a categorical match to the federal definition of possession of child pornography.  Moreover, because California juries are not required to unanimously agree on what sexual conduct appears in a particular image in order to convict a defendant of possession of child pornography, the statute is not divisible, and the modified categorical approach may not be used.

The full text of Chavez-Solis v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/10/06/11-73958.pdf

Fifth Circuit Interprets the Personal Use of Marijuana Deportability Exemption

Non-citizens are removable from the United States for most drug convictions, except those that constitute “a single offense involving possession for one’s own use of 30 grams or less of marijuana.”  The Board of Immigration Appeals (Board) has interpreted this “personal-use exception” to cover only offenses that, in addition to constituting “a single offense involving possession for one’s own use of 30 grams or less of marijuana,” are also the “least serious” drug offenses under the law of the state in which they were committed.  The Fifth Circuit found no textual basis for the additional "least serious offense" criteria, and thus, declined to defer to the Board's interpretation.

The full text of Flores Esquivel v. Lynch can be found here: http://www.ca5.uscourts.gov/opinions/pub/13/13-60326-CV0.pdf

Eighth Circuit Determines that Federal Food Stamp Fraud Conviction is an Aggravated Felony

In a published decision, the Eighth Circuit determined that a conviction under 18 USC 2024(b) (food stamp fraud) is inherently fraudulently because it requires making misrepresentations to the government about the purpose for which the food stamps are being used.  As such, if the conviction involves a loss to the victim of at least $10,000, it is categorically an aggravated felony.

The full text of Molwana v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/09/141320P.pdf

Ninth Circuits Finds No Jurisdiction to Review a Negative Credible Fear Determination

The Ninth Circuit has determined that it lacks jurisdiction to review an Immigration Judge's affirmance of an Asylum Officer's negative credible fear determination.  It found no due process violation in denying judicial review because a non-citizen could still file a habeas petition or collaterally attack the underlying expedited order in any future criminal reentry proceedings.

The full text of Pena v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/28/12-72099.pdf

Ninth Circuit Addresses the Intent of Participants in a Coup

Addressing the terrorist inadmissibility provision related to the use of firearms with intent to endanger another person, the court examined the actions of a person who planned a coup in the Philippines.  The Immigration Judge determined that the respondent did not have the requisite intent to endanger.  The Board of Immigration Appeals reversed  The Ninth Circuit assumed that the determination of intent would be a factual question, and thus, that the Board of Immigration Appeals was required to apply the clearly erroneous standard when reviewing the Immigration Judge's determination.  The court remanded to allow the Board of Immigrations to apply the proper standard.

The full text of Zumel v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/29/12-70724.pdf

Tenth Circuit Addresses the "Permanent Bar" for Minors

In an unpublished decision, the Tenth Circuit addressed the application of section 212(a)(9)(C) of the Immigration and Nationality (INA) - which defines the immigration consequences of re-entering the United States without admission having previously accrued at least one year of unlawful presence - to minors.  The court determined that even though the definition of unlawful presence in section 212(a)(9)(B) of the INA exempts minors from accruing unlawful presence, this exception does not apply to the inadmissibility provision in section 212(a)(9)(C) of the iNA.

The full text of Casillas-Casillas v. Lynch can be found here: 

https://www.ca10.uscourts.gov/opinions/14/14-9611.pdf

Fifth Circuit Finds a Petitioner Ineligible for Cancellation of Removal Based on Multiple Convictions for Which the Aggregate Sentences to Confinement were at Least Five Years

Deferring to the Board of Immigration Appeals' decision in Matter of Pina-Galindo, the Fifth Circuit held that a non-citizen who is inadmissible under section 212(a)(2)(B) of the Immigration and Nationality Act, for having been convicted of two or more offenses for which the aggregate sentences of confinement were 5 years or more, was not eligible for cancellation of removal for non-lawful permanent residents.  In so doing, the Fifth Circuit confirmed that the convictions need be for crimes involving moral turpitude or controlled substance offenses to render the non-citizen ineligible.

The full text of Pina-Galindo v. Lynch can be found here: http://www.ca5.uscourts.gov/opinions/pub/14/14-60752-CV0.pdf

Ninth Circuit Addresses Credibility under the REAL ID Act

In a precedential decision, the Ninth Circuit determined that an adverse credibility determination can be based solely on background documents.  Though the Immigration Judge determined that the petitioner testified consistently, she also determined that the events about which he testified (namely, attacks and harassment by Sikh militants in 1998, 2005, and 2006) were implausible because the background documents indicated that Sikh militants stopped operating in the 1990s.  The court acknowledged that its decision creates a circuit split with the Eleventh Circuit, which has held that an adverse credibility determination cannot solely be based on background documents.

The full text of Singh v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/21/08-74212.pdf

Sixth Circuit Addresses Proper Service of a Notice of Hearing

It is almost universally accepted that providing notice of a hearing date to a non-citizen's attorney is sufficient to notify the non-citizen of the hearing date.  The Sixth Circuit, however, is expressing some reluctance to find that notice to an attorney ALWAYS suffices to notify the client of a hearing date.  Though the court was willing to accept that providing written notice to the attorney in open court, while the client is present, is legally sufficient, it called into question whether mailing a notice to an attorney, without first trying to serve the non-citizen directly with the notice, would suffice.  "To summarize, we interpret [the statute] to require that personal service be made upon the alien whenever practicable and hold that, in certain cases, personal service to a represented alien’s counsel may constitute personal service to the alien."  This case may provide valuable analysis for attorneys filing motions to reopen based on insufficient notice when a client's prior attorney was served with the notice.

The full text of Cruz-Gomez v. Lynch can be found here: http://www.ca6.uscourts.gov/opinions.pdf/15a0229p-06.pdf

BIA Addresses the One-Year Filing Deadline and Credibility Standards for Asylum

The Board of Immigration Appeals (BIA) determined that where an applicant files two applications for asylum - one before the effective date of the REAL ID Act and one after the effective date - the later filing controls for determining whether the provisions of the REAL ID Act apply to the applicant.  A second filing will be considered a new application, as opposed to a supplement, if it is premised on a previously unraised basis for relief (i.e. fear of persecution based on a different protected ground) or if it is predicated on a new factual basis.  Similarly, the date of the later-filed application controls for determining whether an applicant has met the one-year filing deadline for asylum if the first application is found to be fraudulent.  The BIA also used broad language suggesting that even if the first application was not fraudulent, the date of filing of the second application would control for the filing deadline.  Specifically, the BIA stated that    "[t]he date the second asylum application was filed is controlling in determining the timeliness of the respondent's application for relief."

The full text of Matter of M-A-F- can be found here: http://www.justice.gov/eoir/file/762676/download

BIA Addresses the Use of Statements Made by Different Applicants in Multiple Proceedings

At issue in Matter of R-K-K- was the credibility of an asylum applicant whose application bore strikingly similar statements to the statements contained in his brother's asylum application.  The Board of Immigration Appeals (BIA) stated that "an Immigration Judge may rely on inter-proceeding similarities as part of an adverse credibility determination," but the BIA must "review such determinations with an especially cautious eye." 

The BIA adopted a three-part framework.  First, the Immigration Judge (IJ) must give the applicant notice of the similarities that the IN considers significant.  Second, the IJ must give the applicant a reasonable opportunity to explain the similarities.  Third, the IJ must consider the totality of the circumstances in making a credibility determination.  

In the instant case, the IJ was not convinced by the applicant's explanation that he and his brother had used the same transcriber, which the applicant alleged accounted for the similar syntax and spelling errors.  

The full text of Matter of R-K-K- can be found here: http://www.justice.gov/eoir/file/768196/download

Ninth Circuit finds that Voluntary Manslaughter is not a Crime of Violence

The Ninth Circuit held that California's voluntary manslaughter statute, which can be violated through reckless conduct, does not qualify as a crime of violence, which requires the intentional use of force.  In addition, the court held that a claim for protection under the Convention Against Torture must be evaluated "in terms of the aggregate risk of torture from all sources, and not as separate, divisible CAT claims."  Thus, the agency erred by failing to consider the aggregate risk of torture posed to the petitioner by both his status as a criminal deportee and his family affiliation.  

The full text of Quijada-Aguilar v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/01/12-70070.pdf

Ninth Circuit Addresses DUI Crimes and the Treatment of Transgender Individuals in Mexico

Edin Avendano-Hernandez was repeatedly beaten, sexually assaulted, and verbally abused by relatives and police officers because she is a transgender woman.  While in the United States, she was twice convicted of DUI-related offenses, including one DUI involving bodily injury.  The Ninth Circuit affirmed the agency's determination that this conviction was a particularly serious crime, noting that DUI crimes are inherently dangerous, and that Avendano-Hernandez inflicted injuries (albeit relatively minor ones) on the driver of another car.  The Ninth Circuit did note that it was improper to characterize an additional sentence imposed for a probation violation as a sentencing enhancement, but found that the agency's error on this point was harmless.  

Turning to Avendano-Hernandez's application for protection under the Convention Against Torture, the Ninth Circuit disagreed with the agency's finding that she failed to show that the Mexican government would more likely than not consent to or acquiescence in her torture. The court noted that Avendano-Hernandez had already been raped by government officials, and that rape was itself a form of torture.  Thus, because she had already been tortured by government officials, she need not make any of government acquiescence to torture by private individuals.  Turning to the issue of future torture, the Ninth Circuit chastised the agency for conflating laws that protect the gay and lesbian community with government protection of the transgender community.  "While the relationship between gender identity and sexual orientation is complex, and sometimes overlapping, the two identities are distinct."  Given that Mexico has one of the highest transgender murder rates in the world, the Ninth Circuit determined that Avendano-Hernandez was entitled to protection under the Convention Against Torture.

The full text of Avendano-Hernandez v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/03/13-73744.pdf