Eighth Circuit Addresses Iowa Conviction for Assault While Using or Displaying a Dangerous Weapon

The Eighth Circuit has determined that an Iowa conviction for assault while using or displaying a dangerous weapon qualifies as a crime of violence under the sentencing guidelines because the requirement of intentionally pointing any firearm toward another and the requirement of displaying in a threatening manner any dangerous weapon toward another categorically constitute a threatened use of physical force.  Given the similarity between the definition of a crime of violence under sentencing law and a crime of violence under immigration law, an Iowa conviction for assault while using or displaying a dangerous weapon likely also qualifies as a crime of violence for immigration purposes.

The full text of United States v. Boots can be found here: http://media.ca8.uscourts.gov/opndir/16/03/151503P.pdf

Eighth Circuit Addresses Missouri Convictions

In a federal sentencing case, the Eighth Circuit determined that a conviction in Missouri for second-degree is a categorical match to the generic definition of a burglary offense.  Thus, it is likely also a categorical match to the definition of a burglary aggravated felony in the immigration context.  The court also noted that a conviction for second-degree domestic assault in Missouri is not categorically a violent felony.  The statute at issue covers any person who:

(1) Attempts to cause or knowingly causes physical injury to such family or household member by any means, including but not limited to, by use of a deadly weapon or dangerous instrument, or by choking or strangulation; or (2) Recklessly causes serious physical injury to such family or household member; or (3) Recklessly causes physical injury to such family or household member by means of any deadly weapon.

The court determined that only the first subsection qualified as a violent felony.  Though the court didn't specify why the other subsections are not violent felonies, it is likely because they involve merely reckless conduct, while the first subsection requires intentional conduct.  Given the similar definitions of a violent felony in the sentencing context and a crime of violence in the immigration context, similar conclusions can likely be drawn about the various subsections in the immigration context.

The full text of United States v. Phillips can be found here: http://media.ca8.uscourts.gov/opndir/16/03/151712P.pdf

Tenth Circuit Construes Sexual Abuse of a Minor Aggravated Felony Ground

The Tenth Circuit has concluded that the sexual abuse of a minor aggravated felony contains a mens rea requirement.  Thus, a conviction for unlawful sexual activity with a minor in Utah (a strict liability offense) does not fall within the ambit of the aggravated felony conviction.  The court declined to defer to the Board of Immigration Appeals' decision in Matter of Rodriguez Rodriguez, finding that the decision did not address the issue of whether the aggravated felony provision included a mens rea requirement.  

The full text of Rangel-Perez v. Lynch can be found here: https://www.ca10.uscourts.gov/opinions/14/14-9566.pdf

Ninth Circuit Addresses a Washington Conviction for Felony Riot

In the context of a federal sentencing case, the Ninth Circuit determined that a Washington conviction for felony riot is not categorically a violent felony under the Armed Career Criminal Act because the "force" required under the statute is more broadly defined than the violent force required to be a violent felony.  Moreover, the fact a person must be "armed" to be convicted under the statute does not change the analysis, because the state law definition of armed includes a weapon within reaching distance, even if the defendant never made any attempt to use the weapon during the crime.

The court also determined that the statute is indivisible, and therefore, that the modified categorical approach cannot be employed.  Given the similarity between the definitions of "violent felony" in the criminal context and "crime of violence" in the immigration context, this case provides a good argument that a conviction under this statute is not a crime of violence in the immigration context. 

The full text of United States v. Werle can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/03/14-30189.pdf

First Circuit Retroactively Applies Stop-Time Rule

The First Circuit has determined that the "stop-time" rule, which dictates than an applicant for suspension of deportation or cancellation of removal ceases to accrue continuous physical presence in the United States on the date that a charging document is served on him, applies retroactively to Orders to Show Cause issued prior to the effective date of the stop-time rule (April 1, 1997).

The full text of Santos-Quiroa v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/15-1685P-01A.pdf

First Circuit Rejects Equitable Tolling Based on a Change in Law

The First Circuit declined to find that a change in BIA case law equitably tolled the filing deadline for a motion to reconsider, even though the petitioner had made the now-accepted legal argument on direct appeal.

The full text of Omar v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/15-1258P-01A.pdf

Eighth Circuit Addresses Vacated Conviction and Eligibility for Non-LPR Cancellation of Removal

The Eighth Circuit has determined that in the context of an application for immigration relief, the applicant bears the burden of demonstrating that a criminal conviction was vacated due to a procedural defect, and not for rehabilitative reasons.  In addition, the court deferred to the Board of Immigration Appeals' decision in Matter of Cortez, finding that a non-admitted non-citizen can still be convicted of an offense arising under section 273(a)(2) of the Immigration and Nationality Act, rendering the non-citizen ineligible for cancellation of removal for non-lawful permanent residents.

The full text of Andrade-Zamora v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/16/02/152004P.pdf

Ninth Circuit Rejects the BIA's Credibility Determination in a Motion to Reopen

The Ninth Circuit has held that the Board of Immigration Appeals (Board) may not apply the maxim "falsus in uno, falsus in omnibus" (false in one, false in all) to reject evidence submitted with a motion to reopen based on a previous adverse credible determination rendered by an Immigration Judge against the applicant.  Because the Board has limited factfinding power (and a finding applying the falsus maxim requires factfinding), it must accept all evidence submitted with a motion to reopen as credible unless the evidence is inherently unbelievable.

The full text of Yang v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/02/26/12-71773.pdf

Fifth Circuit Addresses Termination of Asylee Status

The Fifth Circuit remanded a case to the Board of Immigration Appeals (Board) to determine if adjustment of status necessarily terminates asylee status.  The court rejected the Board's rationale in Matter of C-J-H- on the issue, finding that the decision relied on case law regarding termination of refugee status, and did not address the regulations governing termination of asylee status.

The full text of Ali v. Lynch can be found here: http://www.ca5.uscourts.gov/opinions/pub/15/15-60004-CV0.pdf

Eleventh Circuit Addresses Adjustment of Status for Non-Citizen Crewman

Typically, non-citizens admitted on crewmen visas are not eligible for adjustment of status.  In a published case, the Eleventh Circuit determined that the beneficiary of such visa, who is subsequently granted medical parole, is still ineligible for adjustment of status.  The subsequent parole does not trump the status a crewman.

The full text of Reganit v. Sec. of DHS can be found here: http://media.ca11.uscourts.gov/opinions/pub/files/201510784.pdf

Eighth Circuit Rejects Family-Based Asylum Claim

The Eighth Circuit rejected the asylum claim from an applicant who was threatened with harm by the MS-13 gang because his cousin was a member of a rival gang.  Members of MS-13 shot his cousin in front of his home and warned him never to return.  The Immigration Judge granted asylum on a family-based social group (male, gang-aged family members of his cousin Oscar). The Board of Immigration Appeals reversed, and the Eighth Circuit affirmed, noting that "an alien’s membership in a family that experienced gang violence lacks the visibility and particularity required to constitute a social group under the statute."

The full text of Aguinada-Lopez v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/16/02/151095P.pdf

Third Circuit Finds Violation of the Travel Act to be a Drug Trafficking Aggravated Felony

In an unpublished decision, the Third Circuit found that a violation of Travel Act could be an aggravated felony.  Specifically, the court found that the Act is divisible, but the prong criminalizing the promotion, management, establishment, or carrying on of a business enterprise related to controlled substances qualified as a drug trafficking aggravated felony.  The court noted that the fact that the petitioner was convicted of engaging in a “business enterprise” suggested that his actions involved some sort of commercial element.

The full text of Deptula v. Attorney General can be found here: http://www2.ca3.uscourts.gov/opinarch/151953np.pdf

Fourth Circuit Defers to the Board of Immigration Appeals' Definition of Torture

The Fourth Circuit has joined multiple other circuits and affirmed the Board of Immigration Appeals' (Board) requirement that torture be inflicted by government officials with specific intent to fall within the ambit of the Convention Against Torture.  Thus, it is not enough to show that Haitian officials would detain the applicant in substandard prison conditions, even if these conditions demonstrate with near certainty that the applicant will suffer harm rising to the level of torture.  Instead, an applicant must show that the officials are imprisoning the applicant with the specific intent that they experience torture.  The court was careful to note that neither the Board's case law nor its precedent should be construed as a blanket ban on torture claims based on substandard prison conditions.

The full text of Oxygene v. Lynch can be found here: http://www.ca4.uscourts.gov/Opinions/Published/142380.P.pdf

Board of Immigration Appeals Interprets a Crime of Violence

The Board of Immigration Appeals (Board) has determined that an actual use of violent force is required for a crime of violence.  Infliction of injury on the victim is not necessarily an indication that violent force was employed; for example, certain assault crimes may include an act of poisoning, which would not require the use of violent force.  Taken these guidelines into consideration, the Board determined that a conviction for aggravated battery in Puerto Rico would not qualify as a crime of violence under 8 USC 16(a) because it criminalizes acts that do not entail the use of violent force.

The full text of Matter of Guzman Polanco can be found here: http://www.justice.gov/sites/default/files/pages/attachments/2016/02/24/3857.pdf

Second Circuit Rejects Reliance on a Prosecutor's Statements Under the Modified Categorical Approach

The Second Circuit determined that a conviction for second-degree assault in Connecticut is not categorically a crime of violence in the sentencing context because one subsection of the statute involves reckless conduct.  The court found that the statute was divisible, but rejected the District Court's reliance on a prosecutor's statements about the conduct underlying the offense because the defendant was never asked to confirm that rendition of the facts and pled guilty before the prosecutor made his factual assertions.  The court was not deterred by the government's argument that the defendant could not have pled guilty to an attempt to commit a reckless assault, as attempt to commit a reckless act is a legally impossible act.  

The full text of United States v. Moreno can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/a34d3390-8dd7-42d5-957a-96d8274126ca/3/doc/14-4700_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a34d3390-8dd7-42d5-957a-96d8274126ca/3/hilite/

Seventh Circuit Grants Appeal Based on Fear of Female Genital Mutilation in Botswana

The Seventh Circuit sustained an appeal of an applicant seeking withholding of removal based on her fear that she would be forced by her family to undergo female genital mutilation (FGM) if she returned to Botswana.  The court noted that the family's two attempts to force the applicant to undergo FGM qualified as past persecution.  Moreover, the fact that FGM is not widely practiced in Botswana did not undermine the applicant's fear of future harm, in light of her family's insistence that she undergo the procedure.  Finally, the court challenged the Board of Immigration Appeals' (Board) determination that the applicant could safely relocate to another part of Botswana, noting that the Department of Homeland Security had not raised this issue on appeal to the Board, the Immigration Judge had not addressed the issue in his decision, and the Board has limited fact-finding capability. 

The full text of Musa v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-19/C:15-2046:J:Hamilton:aut:T:fnOp:N:1706751:S:0

Fourth Circuit Addresses a New Jersey Conviction for Child Endangerment

In the context of a criminal appeal, the Fourth Circuit addressed the elements of a New Jersey conviction for child endangerment under N.J. Stat. Ann. § 2C:24-4(a).  The court noted that the statute does not require any physical contact with the victim, and thus, does not match the federal generic definition of a crime of sexual abuse.  This decision could be helpful when analyzing whether a conviction under this statute qualifies as a sexual abuse of a minor aggravated felony for immigration purposes.

The full text of United States v. Berry can be found here: http://www.ca4.uscourts.gov/Opinions/Published/144934.P.pdf

Fourth Circuit Address the Citizenship of Adopted Children

In a published decision, the Fourth Circuit has rejected the Board of Immigration Appeals' limitations on the use of nunc pro tunc adoption orders to establish the citizenship of adopted children.  The court held that an adoption order is effective for immigration purposes on the date that the state court order states that it is effective, regardless of the date it was filed or whether or not the state adoption statute specifically authorizes nunc pro tunc adoption orders.  The court recognized that adoption matters are within the expertise of state courts, and that there is no indication that Congress meant to give the Board of Immigration Appeals the ability to override or deem invalid a state court adoption order.

The full text of Ojo v. Lynch can be found here: http://www.ca4.uscourts.gov/Opinions/Published/151138.P.pdf

Eighth Circuit Addresses Arkansas Conviction for Aggravated Assault

In the context of a criminal sentencing proceeding, the Eighth Circuit determined that the statute governing aggravated assault in Arkansas is overbroad compared to the definition of a violent felony.  The Court also determined that the statute is divisible, and determined that subsection (a)(1) - which requires a person to manifest extreme indifference to the value of human life and to purposely engage in conduct that creates a substantial danger of death or serious physical injury to another person - did not match the definition of a violent felony because it only requires the government to prove that a defendant's conduct created a substantial danger of death or serious physical injury, not to actually use violent force against another person.  Given the similarity between the definition of a violent felony in the sentencing context and the definition of a crime of violence in the immigration context, this decision likely has implications in the immigration context as well.

The full text of US v. Jordan can be found here: http://media.ca8.uscourts.gov/opndir/16/02/143444P.pdf

Fifth Circuit Finds 18 USC 16(b) to be Unconstitutionally Vague

Joining the Ninth and Seventh Circuits, the Fifth Circuit has ruled that 18 USC 16(b), which contains one half of the definition of a crime of violence for immigration purposes, is unconstitutionally vague.

The full text of US v. Gonzalez-Longoria can be read here: http://www.ca5.uscourts.gov/opinions/pub/15/15-40041-CR0.pdf

My blog post on the related Seventh Circuit decision (US v. Vivas-Ceja) here: http://www.sabrinadamast.com/journal/2015/12/23/seventh-circuit-finds-18-usc-16b-unconstitutionally-vague

My blog post on the related Ninth Circuit decision (Dimaya v. Lynch) can be found here: http://www.sabrinadamast.com/journal/2015/10/20/ninth-circuit-finds-18-usc-16b-unconstitutionally-vague