Fourth Circuit Construes "Crime of Domestic Violence" Deportability Ground

The Fourth Circuit has adopted a "circumstance specific" approach to analyzing the crime of domestic violence deportability ground as opposed to the traditional "categorical approach" that is typically employed to evaluate the immigration consequences of a criminal conviction.  This means that the statute of conviction need contain a domestic relationship for a conviction to sustain a charge of deportability.  If evidence (i.e. documents from the criminal court) establish that the defendant and the victim had such a relationship, that will be sufficient to render the defendant deportable.  Thus, non-citizens in the Fourth Circuit must now be considered that convictions for generic assault crimes, which contain no requirement of a domestic relationship to the victim, may still make them deportable or ineligible for certain forms of immigration relief, if the victim, was in fact, someone with whom they shared a domestic relationship.

The full text of Hernandez-Zavala v. Lynch can be found here: http://www.ca4.uscourts.gov/Opinions/Published/141878.P.pdf

First Circuit Addresses an Arrest During a Workplace Raid

Maria Garcia-Aguilar was arrested during a raid by Immigration and Customs Enforcement (ICE) on her workplace.  She was handcuffed before she was asked any questions, and it was only after being transported to a military base that she was questioned by ICE officers about her identity and nationality.  In the meantime, the Mexican consulate was alerted that Garcia-Aguilar had not returned home from work to pick up her young child, and consular officials faxed a request to ICE to release her.  Along with the request, the consulate faxed Garcia-Aguilar's birth certificate.   

In court, Garcia-Aguilar argued that her arrest, detention, and interrogation violated her constitutional rights (insomuch as she was arrested before ICE had any reason to believe she was in the country unlawfully), and asked that all evidence of her foreign birth, such as statements she made during the interrogation, be suppressed.  She also asked that the birth certificate be suppressed, on the ground that but-for her unlawful arrest, the consulate would never have provided the birth certificate to ICE.  The Immigration Judge denied her motion to suppress and the Board of Immigration Appeals affirmed.

The First Circuit agreed, finding that the connection between the raid and the voluntary submission of the birth certificate by the consulate was too attenuated.  Even assuming the workplace raid was an egregious violation of the Constitution, the birth certificate was not tainted by the unlawfulness of the raid and could serve as evidence of Garcia-Aguilar's foreign birth.

The full text of Garcia-Aguilar v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-1185P-01A.pdf

Third Circuit Remands Convention Against Torture Application Based on fear of Gangs

In an unpublished decision, the Third Circuit remanded an application for protection under the Convention Against Torture, based on fear that Mexican gangs would target a returning deportee with family members in the United States.  The applicant presented evidence from an expert witness that the Mexican government is unable to control gangs.  The Board of Immigration Appeals concluded that the Mexican government was making attempts to weed out corrupt officials and train its military and law enforcement not to engage in acts of torture, and thus, that it would not acquiesce in the torture of the applicant.  

On appeal, the Third Circuit concluded that the Board had not considered "the possibility that, even though the Mexican government attempted to protect its citizens, it could still acquiesce to torture due to its inability to actually protect its citizens from torture. There is no indication that the agency considered evidence, such as Dr. Boerman’s report, indicating that the Mexican government could not control Los Zetas or the corrupt officials who are involved in kidnappings and torture. Rather, the agency seemed to assume that as long as the Mexican government tried to help its citizens, then it could not be found to have acquiesced."  An excellent reminder that the desire to protect is not the same thing as the ability to do so.

The full text of Torres-Escalantes v. Attorney General can be found here: http://www2.ca3.uscourts.gov/opinarch/144663np.pdf 

Fourth Circuit Issues a Decision on Asylum Eligibility for a Former Gang Member

Vladimir Ernesto Ortega Oliva joined the MS-13 gang, but after witnessing the extreme violence of gang life, decided to become more involved with his church and become an "inactive" gang member.  MS-13 would allow members who became active in the church to become inactive, but still required them to pay "la renta" to support the gang's activities.  Oliva paid this extortion fee for 7 or 8 years, but eventually stopped paying.  MS-13 members beat him severely and threatened to kill him if he didn't begin paying again.

Oliva applied for asylum, arguing that his life would be threatened because of his membership in one of two particular social groups: (1) “Salvadorans who are former members of MS-13 and who left the gang, without its permission, for moral and religious reasons,” and (2) “Salvadorans who were recruited to be members of MS-13 as children and who left the gang as minors, without its permission, for moral and religious reasons.”  The Board of Immigration Appeals determined that "Oliva’s fear of persecution was not on account of his becoming an inactive gang member, but because of 'his specific conduct of violating the [gang’s] rules'—namely refusing to pay rent." 

On appeal, the Fourth Circuit held that "[t]his was an overly restrictive view of Oliva’s case. A close examination of the record illuminates the inextricable relationship between Oliva’s membership in his proposed social groups and his refusal to pay rent."  The court also determined that extortion can qualify as persecution, even if the victim will only be physically harmed if he stops paying the extortion fee.

The full text of Oliva v. Lynch can be found here: http://www.ca4.uscourts.gov/Opinions/Published/141780.P.pdf

Board of Immigration Appeals Addresses Lay Testimony and Abusive Immigration Judges

The Board of Immigration Appeals (Board) has determined that a non-citizen may give lay testimony about the psychological impact of his past experiences.  The non-citizen does not need to be qualified as an expert witness to give this testimony.  The Board also determined that when conduct by an Immigration Judge can be perceived as bullying or hostile, remand to a different Immigration Judge may be proper.

The full text of Matter of Y-S-L-C- can be found here: http://www.justice.gov/sites/default/files/pages/attachments/2015/11/23/3853.pdf

Eleventh Circuit Holds that Georgia Obstruction Conviction is a Violent Felony under ACCA

In a published decision the Eleventh Circuit determined that a felony conviction in Georgia for obstruction qualified as a violent felony under the Armed Career Criminal Act (ACCA).  Georgia’s felony obstruction statute applies only to those who obstruct a law enforcement officer “by offering or doing violence” to the officer’s person.  This includes the attempted use of physical force by “pushing, struggling, kicking and flailing arms and legs."  Thus, it has as an element the use, attempted use, or threatened use of physical force against the person of another.  Given the similar language in the ACCA's violent felony definition and a crime of violence under 18 USC 16(a), this conviction likely qualifies as a crime of violence for immigration purposes, too.

The full text of US v. Brown can be found here: http://media.ca11.uscourts.gov/opinions/pub/files/201411502.pdf

Ninth Circuit Holds that California Robbery is not a Violent Felony under the ACCA

The Ninth Circuit held that a conviction for California robbery is not a violent felony under the ACCA.  A violent felony includes a crime matching the generic federal definition of extortion as well as any crime which has as an element the use, attempted use, or threatened use of physical force against a person. 

First, the Court noted that some violations of the robbery statute would involve such significant levels of force as to negate any argument that the property was obtained from the owner with the owner's consent, as would be required under the generic definition of extortion.

Second, the Court noted that the accidental application of force was sufficient to sustain a robbery conviction in California, while the violent felony definition requires the intentional use of force.  

Finally, the Court deemed the robbery statute to be indivisible, and therefore, not subject to a modified categorical analysis.

Given the nearly identical language of the "use of force" definition of a violent felony under the ACCA and the definition of a crime of violence under 18 USC 16(a) (used to define crime of violence aggravated felonies for immigration purposes), there is not an excellent argument to be made that robbery is not a crime of violence for immigration purposes.

In addition, the decision quotes the decision in US v. Becerril-Lopez, which (as noted in the instant decision) determined that certain conduct under California's robbery statute would match the generic definition of extortion.  The generic definition of extortion requires obtaining the property with the owner's consent.  A theft aggravated felony requires obtaining property without the owner's consent.  Potentially (with some additional research and flushing out of the case law cited), California robbery no longer qualifies as a theft aggravated felony either.

The full text of US v. Dixon can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/11/20/14-10318.pdf

Ninth Circuit Finds that New Jersey Aggravated Assault is not a Crime of Violence

The Ninth Circuit determined that a mens rea of extreme indifference recklessness is insufficient to sustain a finding of an aggravated assault crime of violence.  As such, a conviction for aggravated assault in New Jersey encompasses conduct not covered by the generic definition of a crime of violence, and the conviction does not qualify as a crime of violence for federal sentencing purposes (and very possibly, for immigration purposes as well, since the Ninth Circuit's definition of a crime of violence under 18 U.S.C. 16(a) excludes reckless or negligent acts).  The court also noted that the New Jersey definition of "attempt" is broader than the federal definition.

The full text of United States v. Garcia Jimenez can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/11/19/14-10484.pdf

Ninth Circuit Denies Asylum Related Relief for Gay Male from Mexico

Carlos Bringas Rodriguez was repeatedly sexually abused by his relatives and neighbor as a child.  His uncle clearly told Bringas Rodriguez that he was abusing him because he was gay.  Bringas Rodriguez never reported the abuse to the police.  He testified before the Immigration Judge that several of his gay friends had reported abuse to the Mexican police and that the police had failed to do anything.  Nevertheless, the Immigration Judge found that Bringas Rodriguez had not established that the Mexican police were unable or unwilling to protect him from harm.   The Board of Immigration Appeals and the Ninth Circuit agreed.  The Ninth Circuit also noted that its decision in Castro-Martinez v. Holder foreclosed the argument that there is a pattern or practice of persecution against homosexuals in Mexico.  

The Ninth Circuit also affirmed the denial of Bringas Rodriguez's request for protection under the Convention Against Torture, finding that the past harm he experienced did not compel a finding of a likelihood of future torture and suggesting that he could internally relocate to Mexico City, an area more tolerant of homosexuals.

Finally, the Court affirmed the denial of Bringas Rodriguez's motion for remand based on his HIV diagnosis, finding that he did not provide evidence s regarding how his status as an HIV positive homosexual changes the outcome of his case, and noting that the lack of access to HIV drugs is a problem suffered not only by homosexuals but by the Mexican population as a whole. 

Judge Fletcher wrote a compelling dissent, casting doubt on the rationale of Castro- Martinez and finding that even under the standards of that case, Bringas Rodriguez had demonstrated asylum eligibility.

The full text of Bringas Rodriguez v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/11/19/13-72682.pdf

Tenth Circuit Addresses Violation of a Utah Domestic Violence Protective Order

In a published decision, the Tenth Circuit determined that a violation of a no contact order issued under the Utah's Cohabitant Abuse Procedures Act rendered a petitioner removable under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act (violation of a domestic violence protective order).  In so doing, the court deferred to the Board of Immigration Appeals' decision in Matter of Strydom, and reiterated that even an attempt to contact the protected party, if such contact is forbidden by the protective order, is sufficient to render a petitioner removable.

The full text of Cespedes v. Lynch can be found here: https://www.ca10.uscourts.gov/opinions/14/14-9604.pdf

Third Circuit Remands Withholding of Removal and Protection under the Convention Against Torture Applications Premised on Fear of Gangs

In an unpublished decision, the Third Circuit remanded a case to the Board of Immigration Appeals (Board) for further evaluation of whether "Guatemalans who are perceived to be wealthy as a result of previously living in the United States" qualified as a cognizable social group for withholding of removal.  The court criticized the Board for relying  on past decisions for the blanket proposition that cases involving perceived wealth, gangs, and crime do not implicate a cognizable social group, without evaluating whether the evidentiary record demonstrated that the proposed group in the instant case was immutable, socially distinct, and particularized.  "The cognizability of a proposed social group must be addressed on a case-by-case basis."

With respect to the request for protection under the Convention Against Torture, the Board issued its decision in a single sentence, stating that the petitioner did not "show that he is more likely than not to be tortured in Guatemala with the consent or acquiescence (including willful blindness) of a government official.”  The Third Circuit remanded, stating that the Board's "conclusory, one-sentence denial of Sazo-Godinez’s claim for CAT relief is insufficient for us to conduct a meaningful review."

The full text of Sazo-Godinez v. Lynch can be found here: http://www2.ca3.uscourts.gov/opinarch/144832np.pdf 

Third Circuit Interprets Stop-Time Rule for Cancellation of Removal

Narinder Singh was admitted as a lawful permanent resident, and less than 7 years later, convicted of a crime of involving moral turpitude.  He subsequently traveled outside the United States, was readmitted as a lawful permanent resident, and more than 7 years later, was served with a Notice to Appear, charging him with removability based on his conviction.  He applied for cancellation of removal for lawful permanent residents, arguing that he had accrued the requisite 7 years in any status when he returned from his post-conviction trip abroad.  The Immigration Judge and the Board of Immigration Appeals disagreed, finding that his conviction "stopped the clock" on his accrual of 7 years of continuous residency after admission in any status, and that he could not start that clock again by traveling and being readmitted.

The Third Circuit agreed, finding that because Singh was charged with removability based on his criminal conviction, the clock was permanently stopped by the conviction.  The Court did acknowledge that its precedent would have allowed Singh to re-start his clock by traveling abroad if he were charged with a ground of removability unrelated to his criminal conviction.

The full decision of Singh v. Lynch can be found here: http://www2.ca3.uscourts.gov/opinarch/151152p.pdf

Ninth Circuit Addresses a Nevada Conviction for Conspiracy to Possess a Credit Card Without Consent and Eligibility for Cancellation of Removal for Non-lawful Permanent Residents

In a published decision, the Ninth Circuit determined that a conviction under Nevada Rev. Stat. §§ 199.480 and 205.690(2) (conspiracy to possess a credit card without consent) is categorically a crime involving moral turpitude because it necessarily requires an intent to defraud.  In addition, the court deferred to the Board of Immigration Appeals' interpretation of the statute governing cancellation of removal for non-lawful permanent residents, and found that a conviction for a crime involving moral turpitude which is punishable by at least one year imprisonment renders any non-citizen (including one who has never been admitted to the United States) ineligible for cancellation.

The full text of Mancilla-Delafuente v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/11/02/12-73469.pdf

BIA Addresses Burdens of Proof for Analyzing Competency

The Board of Immigration Appeals (Board), in a precedent decision, has continued to expand its case law on the treatment of mentally incompetent non-citizens in removal proceedings. Today, the Board determined  that neither the non-citizen nor the Department of Homeland Security bears a formal burden of proof in immigration proceedings to establish whether or not the non-citizen is mentally competent, but where indicia of incompetency are identified, the Immigration Judge should determine if a preponderance of the evidence establishes that the non-citizen is competent.  Finally, a finding of competency is a finding of fact that the Board will review to determine if it is clearly erroneous. 

The full text of Matter of J-S-S- can be found here: http://www.justice.gov/sites/default/files/pages/attachments/2015/11/02/3851.pdf

Attorney General Refers BIA Cases for Review

The Attorney General has referred the Board of Immigration Appeals' published decision in Matter of Chairez and its unpublished decision in Matter of Sama to herself for review.  She is requesting briefing on the issue of whether the Supreme Court's decision in Descamps v. United States requires that a criminal statute be treated as “divisible” for purposes of the modified categorical approach only if, under applicable law, jurors must be unanimous as to the version of the offense committed.

The notice of referral and invitation for amicus briefs can be found here: http://www.justice.gov/sites/default/files/pages/attachments/2015/11/02/3852_correction.pdf

Ninth Circuit Revisits Prolonged Detention

In the latest decision in what can only be described as a saga, the Ninth Circuit affirmed that bond hearings are mandatory when a non-citizen has been detained for at least six months.  Recognizing the harm of prolonged detention, the Court also mandated that the Immigration Courts provide bond hearings every six months to evaluate continued detention and empowered Immigration Judges to order the release of a non-citizen without requiring the posting of a bond.  This is wonderful decision - hats off to the fantastic litigators who have been working on prolonged detention issues for years!

The full text of Rodriguez v. Robbins can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/10/28/13-56706.pdf

Second Circuit Addresses Prolonged Detention

The Second Circuit construed the "mandatory detention" provision of the Immigration and Nationality Act.  They found that a non-citizen who is convicted of a crime that falls under the provision need not be sentenced to a prison term for the criminal offense to come within the ambit of the detention provision.  In addition, even though the statute empowers ICE to take a non-citizen convicted of such an offense into custody "when the alien is released" from criminal custody, the Second Circuit determined that a break between criminal and immigration custody does not undermine ICE's authority to detain a non-citizen under the mandatory detention provision.  However, the Court also determined that continued detention for 6 months without a bond hearing violated the right to due process.  Thus, detainees in the Second Circuit who have been convicted of a mandatorily detention offense will be entitled to a bond hearing to evaluate whether they are a danger to the community or a flight risk after they have been incarcerated for 6 months.  

The full text of Lora v. Shanahan can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/0d6713f3-cfd7-437f-9bd9-77e159e4b6b4/1/doc/14-2343_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/0d6713f3-cfd7-437f-9bd9-77e159e4b6b4/1/hilite/

BIA Issues Two Decisions on Continuous Physical Presence

In a pair of companion cases, the Board of Immigration Appeals (BIA) clarified when a voluntary departure or voluntary return breaks a non-citizen's continuous physical presence for the purpose of ascertaining eligibility for cancellation of removal for non-lawful permanent residents. The BIA stated that a voluntary departure or return will not break an applicant's continuous physical presence, if, at the time of the departure, the applicant had the right to seek relief from removal before an Immigration Judge and was not informed of this right.  In other words, there must be some indication that the applicant, as part of a formal process, accepted voluntary return in lieu of being placed in removal proceedings. 

Evidence that the applicant was photographed or fingerprinted at the time of the departure is not sufficient to demonstrate the requisite formality of the process.  The BIA concluded "that where an alien has a right to a hearing before an Immigration Judge, there must be reliable testimonial and/or documentary evidence in the record to establish that the alien was informed of that right and waived it before a voluntary departure will be considered a sufficiently formal process to break his or her physical presence."  Thus, when evaluating whether a departure breaks an applicant's continuous physical presence, the Immigration Judge should consider (1) the date and place of the encounter underlying the purported presence-breaking departure; (2) the possibility that the alien was alternatively subject to exclusion, deportation, or removal proceedings in which there was a right to a hearing before an Immigration Judge; and (3) the formality of the process used, including how the threat of proceedings was communicated to the alien, what advisals were given, and whether the alien had knowledge that the agreement to depart was in lieu of being placed in proceedings.  Interestingly, the BIA noted that the Government attorney will typically be in a better position to offer documentary evidence regarding the formality of any departure.

The full text of Matter of Castrejon-Colino can be found here: http://www.justice.gov/eoir/file/788746/download

The full text of Matter of Garcia-Ramirez can be found here: http://www.justice.gov/eoir/file/788751/download

Seventh Circuit Overturns an Adverse Credibility Determination and Clarifies the Meaning of "Resistance to a Coercive Population Control Program"

Lishou Wang requested asylum on account of the beating he suffered at the hands of Chinese officials who implanted a contraceptive device in his wife's arm.  At first, Want referred to this procedure as a tubal ligation, but subsequently, he repeatedly described it as the implantation of a device (called a "Norplant") into her upper arm.  The Immigration Judge denied his application on two ground: 1) a tubal ligation and the implantation of a Norplant are such vastly different procedures that a person could not possibly confuse them; and 2) even if Wang's testimony was credible, he only resisted the implantation of a birth control device, and not a forced abortion or sterilization, and thus, he had not established that he has resisted a coercive population control program.  The Board of Immigration Appeals affirmed.

The Seventh Circuit reversed, finding that "[a]lthough tubal ligation is in fact different from a contraceptive implant, Wang said nothing at the hearing to suggest that he grasped the difference between the two procedures. Consequently the IJ lacked substantial evidence to use Wang’s misunderstanding of the term 'tubal ligation' to discredit his uncontradicted testimony that family-planning officials implanted a contraceptive device into his wife’s arm."  In addition, the court noted that "China’s 'coercive population control program' is not limited to only forced abortions and sterilizations; it also forces couples to use birth-control measures such as condoms, pills, and IUDs."  Thus, resisting the implantation of a birth control device could qualify as resistance to the coercive population control program.  

The full text of Wang v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D10-26/C:15-1261:J:Kanne:aut:T:fnOp:N:1645796:S:0

Second Circuit Limits the Applicability of the REAL ID Act

The Second Circuit determined that the REAL ID Act, by its terms, applies only to applications for relief.  Thus, the Board of Immigration Appeals erred by applying the standards of the Act to a contested removability determination.  This is a great decision for attorneys to reference when litigation so-called Quilantan cases, where there is an assertion that the non-citizen was admitted to the United States, but there may not be any documentary evidence to support the assertion.  

The full text of Ahmed v. Lynch can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/89caf325-4154-40e2-96f2-eebb31168c44/4/doc/14-1396_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/89caf325-4154-40e2-96f2-eebb31168c44/4/hilite/