The Ninth Circuit Rejects "Imputed Wealthy Americans" as a Social Group

The petitioners, a husband and wife, filed a motion to reopen to seek asylum, withholding of removal, and protection under the Convention Against Torture.  They argued that they would be harmed on account of their membership in the particular social group comprised of "imputed wealthy Americans."  Specifically, they asserted that because they are lightskinned, fit, and have American mannerisms or accents, their family will be perceived as wealthy Americans in Mexico, and thus will become targets for kidnaping or torture.  They clarified that they are not actually wealthy, but the appearance of wealth will endanger them.

The Ninth Circuit affirmed the denial of the motion to reopen, making the following observations about the proposed social group: "Petitioners now seek to distinguish a particular social group that is a discrete subset of Mexicans returning home from the United States: those who have the physical appearance and mannerisms of Americans. Yet, petitioners provide insufficient evidence to support their claim that their alleged American appearance will make them targets for violent crimes upon return to Mexico any more than the populace at large. The evidence submitted in support of changed circumstances includes both American and Mexican victims of financial means, and the other evidence in the form of news reports does not mention wealth as the perpetrators’ primary motive. Rather, the evidence shows a generalized increase in violence in Mexico, as held by the Board."

This decision will feel like a substantial blow to advocates who have tried to convince the courts that individuals who are deported from the United States are at a higher risk of harm.  However, it is also a reminder that a new body of evidence may one day change precedent.  Attorney should continue to press these difficult claims and support them with as much evidence of social distinction and particularity as possible.

The full text of Ramirez-Munoz v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/21/12-70870.pdf

The Ninth Circuit Invalidates the Bar to Good Moral Character Based on Being a "Habitual Drunkard"

The Ninth Circuit has ruled that chronic alcoholism should be considered a medial disability, and as such, the Equal Protection Clause prohibits the government from discriminating against an applicant in immigration court proceedings based on this disability.  "Just as a statute targeting people who exhibit manic and depressive behavior would be, in effect, targeting people with bipolar disorder and just as a statute targeting people who exhibit delusional conduct over a long period of time would be, in effect, targeting individuals with schizotypal personality disorder, a statute targeting people who habitually and excessively drink alcohol is, in effect, targeting individuals with chronic alcoholism."  "Like any other medical condition, alcoholism is undeserving of punishment and should not be held morally offensive."  The Court expressed concern that based on the government's logic, veterans who drink excessively as a symptom of post-traumatic stress disorder would be considered to lack good moral character.  The Court was also concerned about disproportionate impact on other populations where alcoholism rates are high, such as Native Americans and the homeless.  The Court concluded that the good moral character bar was merely a result of animus against those who suffer from chronic alcoholism, and thus, the government had no rational basis for discriminating against chronic alcoholics in this manner.   

The full text of Ledezma-Cosino v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/24/12-73289.pdf

Second Circuit Deems Board of Immigration Appeals' Certification Process a "Discretionary Determination"

The Second Circuit has determined that the Board of Immigration Appeals' authority to take a late-filed appeal on certification is a discretionary determination, and thus, not reviewable by the court of appeals.

The full text of Vela-Estrada v. Lynch can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/73af4a5d-25eb-468d-ad34-9bb571816aed/5/doc/14-619_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/73af4a5d-25eb-468d-ad34-9bb571816aed/5/hilite/

Board of Immigration Appeals Construes Aggravated Felony Ground Related to Failure to Appear Crimes

The list of aggravated felonies in section 101(a)(43) includes "an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more."  In a published decision, the Board of Immigration Appeals determined that the phrase, "punishable by imprisonment for a term of 5 years or more," refers to the maximum punishment that can be applied to the underlying offense, and not the actual sentence imposed for the underlying offense.

The full text of Matter of Adeniye can be found here: https://www.justice.gov/sites/default/files/pages/attachments/2016/03/17/3859.pdf

Sixth Circuit Reverses the Grant of the Department of Homeland Security's Motion to Reopen

In a somewhat scathing decision, the Sixth Circuit reversed the Board of Immigration Appeals' decision to reopen proceedings based on evidence presented by the Department of a Homeland Security (DHS) that an asylee had lied about her identity.  Noting that the asylee had revealed her use of alias on her application and that the DHS can the evidence submitted within its possession at the time of the decision granting asylum, the court noted that the DHS had not met the burden of introducing previously unavailable evidence to substantiate reopening of a proceeding.

"The government’s reasons for its failure to investigate are simply not compelling. Not only did Sakhawati admit to using an alias, including the explicit admission on her asylum application, but she also provided biometric information that would have enabled DHS to discover the existence of a second identity."  "Moreover, DHS specifically informed the IJ that it had completed all of the requisite background checks—which include the above-mentioned biometric screening—pursuant to DHS’s own regulatory requirements."

The full text of Sakhawati v. Lynch can be found here: http://www.ca6.uscourts.gov/opinions.pdf/16a0063p-06.pdf

Third Circuit Declines to Follow Board of Immigration Appeals' Precedent on the Stop-Time Rule

The Third Circuit has determined that a Notice to Appear which does not list the time and date of a non-citizen's immigration court hearing does not affect the non-citizen's accrual of physical presence for cancellation of removal.  The court found that the Department of Homeland Security must comply with the regulations governing Notices to Appear - which require that the notices include the time, date, and location of a future hearing - in order to trigger the "stop time" rule, which holds that continuous physical presence ends with the service of a Notice to Appear.

The full text of Orozco-Velasquez v. Attorney General can be found here: http://www2.ca3.uscourts.gov/opinarch/131685p.pdf

Board of Immigration Appeals Finds Legalization Beneficiary Removable

Villalobos was granted temporary residence under the legalization provisions found in section 245A of the Immigration and Nationality Act (INA).  Before adjusting his status to permanent residence, he was convicted of several cocaine-related offenses.  Nonetheless, his application for permanent residence was approved.  Later, when he sought to renew his residency card, his criminal history came to light, and he was placed in removal proceedings, where he sought a waiver under section 212(c) of the INA.  An Immigration Judge found him removable as a person inadmissible at the time of adjustment, and further concluded he was not eligible for a waiver because he had never been lawfully admitted to permanent residence.

On appeal, the Board of Immigration Appeals (Board) acknowledged that the Department of Homeland Security has exclusive jurisdiction over legalization applications, but found that the Immigration Judge and the Board retained jurisdiction to determine if the grant of permanent residency was lawful, and thus, whether the non-citizen is removable.  The Board further determined that the legality of Villalobos' adjustment to permanent residency could be examined, because this adjustment was a separate grant of status from the approval of his temporary residency, and required a second evaluation of his admissibility to the United States.  Finally, because Villalobos' drug-related offenses rendered him inadmissible, he was never lawfully admitted to permanent residence, and was not eligible for a waiver under section 212(c) of the INA.

In a footnote, the Board noted that Villalobos' criminal history came to light outside of the context of his legalization application, which is protected by strict confidentiality provisions.  Presumably, his criminal history was revealed when he was fingerprinted for the renewal of his resident card.  This is a reminder to practitioners that information in the legalization application, which cannot be used by an Immigration Judge to undermine a previous grant of permanent residency to a legalization, may still be discovered through other, non-protected channels.

The full text of Matter of Villalobos can be found here: https://www.justice.gov/sites/default/files/pages/attachments/2016/03/10/3858.pdf

Ninth Circuit Finds that California Perjury is not Categorically a Crime Involving Moral Turpitude

The Ninth Circuit determined that a conviction in California for perjury is not necessarily a crime involving moral turpitude (CIMT).  The court recognized that common law perjury has long been considered a CIMT, but noted that California's definition of perjury was much broader, encompassing lies told outside of a judicial proceeding, as well as lies made where no oral oath of honesty was required.  The court also observed that the fact that one need not be competent to give the false statement demonstrates that not all convictions result from evil or malicious intent. Similarly, the fact that lack of knowledge as to the false statement’s materiality is not a defense to conviction further demonstrates that not all conduct covered by the statue involves an intent to harm someone.  Perjury does not necessarily involve intent to harm, actual infliction of harm, or an action that affects a protected class of victim, nor does it include a specific intent to defraud.

The court also determined that California's perjury statute is divisible, encompassing two separate crimes: written perjury and oral perjury.  The court concluded that written perjury is not a CIMT.

The full text of Rosales Rivera v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/10/12-72668.pdf

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