Ninth Circuit Returns to the Saga of 245(i) Adjustment and 212(a)(9)(C)

n 2002, the Correo-Ruiz brothers applied for adjustment of status under section 245(i) of the INA. In 2006, the Ninth Circuit issued its decision in Acosta v. Gonzales, finding that a person who was inadmissible under section 212(a)9)(C)(i)(I) of the iNA for having re-entered the United States without admission after accruing at least one year of unlawful presence could still seek adjustment of status under section 245(i) of the INA.  I In 2007, the Board of Immigration Appeals issued its decision in Matter of Briones, coming to the opposite conclusion as the Ninth Circuit in Acosta.  This came as unwelcome news to the Correo-Ruiz brothers, who had already expended money for legal representation in their immigration process after the decision in Acosta.  In 2012, the Ninth Circuit issued its decision in Garfias-Rodriguez v. Holder, deferring to the Board's decision in Briones, but suggesting that a person who could show detrimental reliance on Acosta might be able to successfully argue against the retroactive effect of Briones and Garfias-Rodriguez.  

Though the court recognized that the Correo-Ruiz brothers could not have filed their adjustment applications in reliance on Acosta (which was decided approximately 4 years after they filed their applications), they may relied on the Acosta decision when deciding to continue to pursue their applications with legal assistance after the Acosta decision and before the Briones decision.  The money spent on this legal assistance could create the necessary detriment to prevent retroactive application of the decision in Briones.

The full text of Correo-Ruiz v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/30/12-72126.pdf

Second Circuit Construes Notice Requirements for Revocation of an Employment-Based Immigrant Petition

Certain beneficiaries of employment-based immigrant visas, who have filed for their residency but whose applications remain pending, can take advantage of a procedure known as "porting," which permits them to change employers without affecting their pending applications for residency.  The new employer effectively substitutes in as the sponsoring petitioner for the former employer who actually filed the immigrant petition on the employee's behalf.  The question becomes, if U.S. Citizenship and Immigration Services (USCIS) believes there is grounds for revoking the approved immigrant petition, and the employee has ported to a new employer, who must USCIS notify? The original petitioning employer (with whom the beneficiary/employee no longer has any relationship), the beneficiary/employee, or the new employer/sponsor? 

In a published decision, the Second Circuit ruled that notifying the former employer is not sufficient.  The court remanded for the District Court to determine f the requisite notice should go the beneficiary/employee, the new sponsor/employer, or both.

The full text of Mantena v. Johnson can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/d2fe6f7c-3e22-435a-b753-bf6dca1fa9bd/1/doc/14-2476_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d2fe6f7c-3e22-435a-b753-bf6dca1fa9bd/1/hilite/

Ninth Circuit Addresses a California Joyriding Conviction

In an en banc decision, the Ninth Circuit has determined that a conviction for joyriding in California is not a crime involving moral turpitude, finding the statute to be overbroad and indivisible.  The court also provided a detailed explanation of how to employ the categorical and modified categorical approaches.  Notably, the court suggested that the charging document may assist a court in determining whether disjunctively worded phrases in a statute are alternative elements or alternative means.  

"Prosecutors may not charge a defendant in the disjunctive, as the indictment did here, if they are charging two separate offenses. As noted in Descamps, '[a] prosecutor charging a violation of a divisible statute must generally select the relevant element from its list of alternatives.'  Thus, when reviewing the Shepard documents, a court can discover what the prosecutor included as elements of the crime and to what elements the petitioner pleaded guilty. Therefore, because the indictment charged Almanza with having intent either to permanently deprive or temporarily deprive the owner, the indictment reveals that (under state law) the two forms of intent are alternative means of accomplishing the same crime instead of two separate crimes. Section 10851 is therefore an indivisible statute."

The en banc court did not address perhaps the biggest issue in the underlying 3 judge panel decision - whether an inconclusive record of conviction (i.e. a divisible statute, where the record of conviction does not clearly establish which alternative elements underpinned a defendant's conviction) can meet a non-citizen's burden of proving eligibility for relief from removal.

The full text of Almanza-Arenas v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/28/09-71415.pdf

First Circuit Narrows Mandatory Detention Provisions

In an en banc decision, the First Circuit has affirmed District Court decisions finding that the mandatory detention provisions for immigrants with criminal histories only apply if the Department of Homeland Security takes the immigrant into custody at the time he is released from criminal custody.  If the person is released from criminal custody and later is taken into immigration custody, he will be eligible to seek a bond from an Immigration Judge.

The full text of Castenada v. Souza can be found here: http://media.ca1.uscourts.gov/pdf.opinions/13-1994P2-01A.pdf

Ninth Circuit Invalidates Administrative Removal Order Based on ICE Officer's Conduct

The Ninth Circuit, in a criminal reentry case, has invalidated an administrative order of removal.  The petitioner had been convicted of an aggravated felony and placed in administrative removal proceedings.  However, prior to the initiation of removal proceedings, she had been the victim of a crime that made her facially eligible to apply for a U visa.  The ICE officer who interviewed her and processed her for administrative removal proceedings advised her that an attorney could not help because she had been convicted of an aggravated felony.  As a result of this misrepresentation (an attorney could have helped the petitioner apply for a U visa), the petitioner waived her right to counsel.  The Ninth Circuit found that the ICE officer's misrepresentation had violated her due process rights.

The Ninth Circuit also found that the petitioner had been prejudiced by the misrepresentation.  Even though a person in administrative removal proceedings is not typically eligible for any discretionary relief, an ICE officer has the authority to place the person in "regular" removal proceedings.  Given the petitioner's eligibility for a U visa, an ICE officer very likely could have transferred her proceedings if a U visa application was filed, and as such, the petitioner was prejudiced by the ICE officer's conduct which induced a waiver of her right to counsel.

The full text of United States v. Cisneros-Rodriguez can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/23/13-10645.pdf

Seventh Circuit Finds 18 USC 16(b) Unconstitutionally Vague

The Seventh Circuit has joined the Ninth Circuit and determined that 18 USC 16(b), which provides half of the definition of a crime of violence aggravated felony for immigration purposes, is unconstitutionally vague.  Like the Ninth Circuit's decision in Dimaya v. Lynch, the Seventh Circuit relied on the Supreme Court's decision in Johnson v. United States, holding the nearly identically worded residual clause of the Armed Career Criminal Act to be unconstitutionally vague.

The full text of United States v. Vivas-Ceja can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-22/C:15-1770:J:Sykes:aut:T:fnOp:N:1676497:S:0

My previously blog post on Dimaya v. Llynch can be found here: http://www.sabrinadamast.com/journal/2015/10/20/ninth-circuit-finds-18-usc-16b-unconstitutionally-vague

Seventh Circuit Grants Petition for Review for Convention Against Torture Protection

In a scathing opinion, the Seventh Circuit shot down the Board of Immigrations Appeals' decision denying Protection under the Convention Against Torture to an applicant who owed money to the Zetas cartel for drug transactions, who had previously been tortured by the Mexican police, and whose family had been tortured by the Zetas.  The Court emphasized that the Convention only requires substantial grounds to believe an applicant would be tortured, which cannot be literally construed as a great than 50% probability of torture.  Finally, the Court reminded the Board of Immigration Appeals that the entire government need not acquiesce in the torture (only a government official), nor do they have to do so in any "official capacity."

The full text of Rodriguez-Molinero v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-17/C:15-1860:J:Posner:aut:T:fnOp:N:1673810:S:0

Ninth Circuit Discusses Jurisdiction over a Citizenship Claim

An Immigration Judge found that Sunny Viloria derived citizenship through his parents and accordingly, terminated removal proceedings against him.  The Department of Homeland Security appealed, and the Board of Immigration Appeals (BIA) sustained the appeal and remanded the case to the Immigration Judge.  Viloria appealed to the Ninth Circuit, who determined that it had no jurisdiction to review the BIA's decision because Viloria was not the subject of a final order of removal.

The full text of Viloria v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/21/11-73725.pdf

Ninth Circuit Finds that North Koreans who Relocate to South Korea are not Eligible for Asylum in the United States

The Ninth Circuit determined that a North Korean who moved to South Korea, attended school, and accepted South Korean citizenship, was firmly resettled, and thus, ineligible for asylum.  Section 302 of the North Korean Human Rights Act of 2004, which prohibits a finding that a North Korean is automatically a dual citizen of South Korea, does not prevent an Immigration Judge from making a firm resettlement finding.

The full text of Jang v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/22/11-73587.pdf

Tenth Circuit Addresses Immigration Consequences of an Oklahoma Conviction for Receipt of Stolen Property

The Tenth Circuit determined that a conviction for receipt of stolen property in Oklahoma qualifies as a crime involving moral turpitude even though it does no require a permanent taking.  The fact that the defendant must know the property is stolen is sufficient to implicate morally turpitudinous conduct.  The court acknowledged that its decision was at odds with Ninth Circuit precedent.

The full text of Obregon v. Lynch can be found here: https://www.ca10.uscourts.gov/opinions/13/13-9601.pdf

Fourth Circuit Addresses North Carolina Convictions for Speeding to Elude Authorities

The Fourth Circuit concluded that North Carolina conviction for speeding to elude authorities does not qualify as violent felony under the Armed Career Criminal Act (ACCA) because it neither requires the use of force nor is it one of the enumerated crimes defined as violent felonies. 

The full text of United States v. Barlow can be found here: http://www.ca4.uscourts.gov/Opinions/Published/154114.P.pdf

Tenth Circuit Finds that a California Conviction for Robbery Qualifies as a Crime of Violence

The Tenth Circuit determined that some conduct under section 211 of the California Penal Code (robbery) matched the generic definition of extortion, while other conduct matched the generic definition of robbery.  Though the conduct criminalized under the robbery statute matched one generic definition of a crime of violence, as defined in the sentencing guidelines, the court still concluded that a conviction for robbery in California would qualify as a crime of violence under the sentencing guidelines.

The Tenth Circuit's decision potentially creates a split with the Ninth Circuit, which determined in United States v. Dixon that a robbery conviction would not qualify as a violent felony under the Armed Career Criminal Act (ACCA). The Ninth Circuit also acknowledged that some conduct under section 211 of the California Penal Code, and some would fall under the "use of force" definition included the in ACCA.  Notably, the ACCA definition of a violent felony does not include a generic robbery definition, nor did the Ninth Circuit discuss whether all conduct criminalized under section 211 of the California Penal Code would fall under either the generic extortion or the use of force definition of a violent felony.  Thus, the Tenth Circuit and Ninth Circuit case law may, in the end, be reconcilable.  However, this is an area to keep an eye on further developments.

The full text of the Tenth Circuit's decision in United States v. Castillo can be found here: https://www.ca10.uscourts.gov/opinions/14/14-4129.pdf

My blog post on the Ninth Circuit's decision in United States v. Dixon can be found here: http://www.sabrinadamast.com/journal/2015/11/22/ninth-circuit-holds-that-california-robbery-is-not-a-violent-felony-under-the-acca

Ninth Circuit Defines Standards for Citizenship Trial in District Court

In an en banc decision, the Ninth Circuit confirmed that once a District Court finds that a litigant has adduced substantial credible evidence that he is a U.S. citizen, the burden shifts to the Government do demonstrate by clear and convincing evidence that the litigant is not a citizen.  On appeal, an appellate court will review the District Court's factual findings regard a litigant's citizenship for clear error.  In light of the contradictory evidence and credibility issues identified by the District Court, the Ninth Circuit deferred to its finding that Salvador Mondaca-Vega is not a citizen of the United States.

The full text of Mondaca-Vega v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/15/03-71369.pdf

Sixth Circuit Finds Tennessee Convictions for Aggravated Burglary, Burglary, and Robbery to be Violent Felonies

In a published decision, the Sixth Circuit confirmed that a conviction for aggravated burglary in Tennessee matches the generic definition of a burglary offense, and thus, qualifies as a violent felony under the Armed Career Criminal Act (ACCA).  For immigration purposes, a conviction for this crime will very likely qualify as a burglary aggravated felony in the immigration context if accompanied by a sentence of at least one year.  

With respect to Tennessee's burglary statute, the court determined that the statute is divisible with respect to whether it matches the generic definition of a burglary because one of the subsections of the statute criminalizes burglary of non-buildings, such as vehicles and motor boats.  This subsection does not match the generic definition of a burglary offense.  Because the petitioner was convicted under one of the subsections involving a building, his conviction matched the generic definition of a burglary offense, and qualified as a violent felony under the ACCA.  Again, a conviction under this statute will likely be considered overbroad but divisible when analyzing whether it qualifies a burglary aggravated felony in the immigration context.

Finally, with respect to a conviction for robbery in Tennessee, the court confirmed that the statute qualified as a violent felony under the "use of force" prong in the ACCA.  This prong is nearly identical to the definition of a crime of violent found in 18 USC 16(a), and thus, a conviction for robbery in Tennessee, if accompanied by a sentence of at least one year, will likely be considered a crime of violence aggravated felony for immigration purposes.

The full text of United States v. Priddy can be found here: http://www.ca6.uscourts.gov/opinions.pdf/15a0292p-06.pdf

First Circuit Remands a Case to Apply Old Deportation Laws

The First Circuit remanded a case for the application of pre-1997 standards.  The Board of Immigration Appeals determined that an applicant in deportation proceedings had been convicted of a particularly serious crime.  Noting that the court had not yet determined whether pre-1997 law on particularly serious crimes would include non-aggravated felonies, the Court remanded the case for the agency to address this issue in the first instance.

The full text of Velerio-Ramirez v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-2318P-01A.pdf

Eighth Circuit Finds that South Carolina Conviction for Pointing Firearm at Another is an Aggravated Felony

The Eighth Circuit has determined that a conviction under South Carolina Code § 16-23-410 (pointing a firearm at another) requires the “threatened use of physical force against the person or property of another," and thus, qualifies as a crime of violence under 18 USC § 16(a).  The court recognized that the Ninth Circuit has recently determined that 18 USC § 16(b) is unconstitutionally vague, but declined to address the issue in the instant case.

The full text of Reyes-Soto v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/12/143797P.pdf

Board of Immigration Appeals Construes "Term of Imprisonment" to Include Time Spent in a Rehab Facility

The Board of Immigration Appeals (Board) has determined that the one year term of imprisonment required to classify a conviction as a crime of violence includes a period of confinement in a drug rehabilitation facility.  the Board noted that section 101(a)(43)(B) of the Immigration and Nationality Act defines a term of imprisonment as a “period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.”  Thus, if an applicant is ordered to serve a period of confinement in a drug rehabilitation facility, this qualifies as a term of confinement imposed by a court of law, and thus, qualifies as a term of imprisonment as well.

The full text of Matter of Calvillo Garcia can be found here: http://www.justice.gov/sites/default/files/pages/attachments/2015/12/09/3855.pdf

First Circuit Determines that Third Degree Assault in Connecticut is not a Crime of Violence

In a precedent decision, the First Circuit has determined that a conviction for third degree assault in Connecticut is not a crime of violence.  The elements of the state statute are: (i) the intent to cause physical injury to another person and (ii) causing such injury to such person or to a third person.  A crime of violence requires the infliction of actual, violent force upon a person.  The court reasoned that the statute, by its very terms, does not require violent force, and concluded that the requirement that the victim be injured does not necessarily lead to the conclusion that the defendant must have employed violent force.  The court was also unperturbed by the petitioner's inability to locate a state court case in which the defendant was prosecuted under the statute for non-violent conduct, recognizing that not all assault cases have resulted in the generation of publicly available records for the court to review.

The full text of Whyte v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-2357P-01A.pdf

Ninth Circuit Finds that a Family is the "Quintessential Particular Social Group"

The Ninth Circuit has determined that even in light of the Board of Immigration Appeals' decisions in Matter of M-E-V-G-  and Matter of W-G-R-, a family still remains a quintessential particular social group in asylum law.  The court acknowledged that persecutors are more likely to identify individual family members as part of a particular social group when familial ties are “linked to race, religion, or political affiliation," but to declined to hold that the family unit must be intertwined with another protected ground to be cognizable as a particular social group for asylum purposes. 

The full text of Flores-Rios v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/01/12-72551.pdf

Board of Immigration Appeals Construes Physical Presence Requirements for NACARA

The Board of Immigration Appeals had determined that when an applicant for NACARA commits more than one act that renders them removable, the continuous physical presence requirement must be applied to the last removable act.  Thus, when an applicant enters the United States without inspection and subsequently commits a crime that renders him removable, he must establish the requisite physical presence beginning on the date that the criminal act rendered him removable.  In the instant case, the applicant committed a removable crime in 2012 which subjected him to the heightened standard for NACARA.  Because ten years had not elapsed since the offense, he could not establish the requisite physical presence. 

The full text of Matter of Castro-Lopez can be found here: http://www.justice.gov/sites/default/files/pages/attachments/2015/12/02/3854.pdf