Eleventh Circuit Declines to Recognize "Former Gang Members" as a Particular Social Group

In a published decision, the Eleventh Circuit declined to recognize former members of the Mara 18 as a particular social group.  In so doing, the court relied heavily on published Board of Immigration Appeals (BIA) and Ninth Circuit case law finding that - for policy reasons - it would be inappropriate to reward applicants with immigration status based on prior, anti-social and violent behavior.  The court also deferred to the BIA's determination that a group comprised of former gang members lacked sufficient particularity.

The full text of Gonzalez v. Attorney General can be found here: http://media.ca11.uscourts.gov/opinions/pub/files/201512878.pdf

Fifth Circuit Finds No Lawful Admission for a Man With Plane Tickets

Samuel Gomez was approved for temporary residency.  Using the travel authorization that accompanied this status, he traveled to El Salvador and back to the United States.  Years later, the applied for adjustment of status to the United States.  To prove his lawful entry, he produced his temporary residence card, round trip plane tickets, a baggage receipt, entry and exits stamps from El Salvador in his passport, and affidavits from himself and his wife (who verified that she picked him up at the airport in Houston).  The agency determined that this was insufficient to demonstrate that he actually passed through the immigration inspection area in the airport and was admitted to the United States.  The agency relied in part on the fact that Mr. Gomez had twice listed his entry as one "without inspection" on other immigration documents.  The Fifth Circuit affirmed, finding that the evidence did not compel a contrary conclusion.

This is a worrisome case, casting serious doubts on the viability of Matter of Quilantan in the Fifth Circuit.

The full text of Gomez v. Lynch can be found here: http://www.ca5.uscourts.gov/opinions/pub/14/14-60661-CV0.pdf

Eighth Circuit Finds that Felony Domestic Assault in Minnesota Qualifies as a Violent Felony

The Eighth Circuit has concluded that a felony conviction for domestic assault in Minnesota qualifies as a violent felony.  The statute of conviction requires the defendant to commit an act with intent to cause fear in another of immediate bodily harm or death.  The court determined that a conviction necessarily entails the threatened use of violent force.  Given the similarity between the definition of a violent felony in the sentencing context and a crime of violence in the immigration context, this decision may indicate that a conviction for domestic assault in Minnesota would also qualify as a crime of violence.

The full text of US v. Schaffer can be found here: http://media.ca8.uscourts.gov/opndir/16/04/152571P.pdf

Ninth Circuit Determines that a Massachusetts Conviction for Armed Robbery does not Qualify as a Violent Felony

A conviction for armed robbery in Massachusetts requires the prosecution to prove two elements: (1) the defendant committed a robbery; and (2) the defendant was in possession of a weapon.  The robbery can be committed in one of two ways: (1) by force and violence (i.e., the actual force prong) or (2) by assault and putting in fear.  Under either prong, the degree of force is immaterial, so long as it is sufficient to obtain the property against the victim's will.  It is not necessary that the victim be placed in fear.  In addition, the defendant need not use the weapon during the commission of the robbery, nor need the victim be aware of the weapon.

Under these circumstances, the court determined that a conviction for armed robbery in Massachusetts does not meet the definition of a violent felony, which requires a statute include as an element the use, attempted use, or threatened use of physical force against the person of another.  Because the degree of force is immaterial, any force, however slight, will satisfy this prong so long as the victim is aware of it.  This does not meet the violent force requirement for a violent felony.  Moreover, since the statute does not require the use or threatened use of the weapon, the fact that a defendant must be armed does not transform the conviction into a violent felony.  Given the similarity in  the definition of a violent felony for sentencing purposes and a crime of violence for immigration purposes, this decision could be excellent persuasive authority for arguing that a Massachusetts conviction for armed robbery is not a crime of violence.

The full text of US v. Parnell can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/04/12/14-30208.pdf

Ninth Circuit Defers Resolution of a Question Regarding a Drug Trafficking Offense to Await the Supreme Court's Decision in a Similar Case

David Rosales-Aguilar was convicted of violating section 11352 of the California Health & Safety Code (CHSC) in 1998.  The Government wished to use this conviction, which it claims is a "drug trafficking offense," to increase Rosales-Aguilar's sentence for an illegal reentry conviction.  The Court acknowledged that a conviction under section 11352 of the CHSC is not categorically a drug trafficking offense.  It also recognized the growing circuit split addressing what constitutes a divisible statute, and relatedly, when a court should employ the modified categorical approach. The Supreme Court will take up this issue this term in US v. Mathis.  As such, the Ninth Circuit decided to defer addressing whether Rosales-Aguilar's conviction qualifies as a drug trafficking offense until the Supreme Court renders a decision in Mathis.

The full text of US v. Rosales-Aguilar can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/04/12/14-50315.pdf

Eighth Circuit Deems a Michigan Robbery Conviction be a Violent Felony

In the context of a federal sentencing case, the Eighth Circuit has determined a Michigan conviction for robbery is a violent felony.  The statute, which requires the defendant “assault or put[] in fear” the victim, is limited to conduct that accomplishes a forceful taking (or attempted taking) by using violence or the threat of violence to put the victim in fear of immediate personal injury.  Given the similarity between the definition of a violent felony and a crime of violence in the immigration context, this decision likely applies to a crime of violence aggravated felony analysis in the immigration context as well.

The full text of US v. Lamb can be found here: http://media.ca8.uscourts.gov/opndir/16/04/152399U.pdf

Ninth Circuit Entertains Particular Social Group of "Young Women in El Salvador Who have been Solicited by Gangs"

In an unpublished decision, the Ninth Circuit remanded a case in which the petitioner asserted that she was persecuted on account of her membership in the group comprised of "young women who have been solicited by gangs."  The petitioner was initially approached by four members of the Mara Salvatrucha gang who asked her to join.  She then faced a series of threatening or violent encounters with some of the same gang members, and was persecuted every week by the gangs.  The Ninth Circuit concluded that this evidence compelled the conclusion that she was persecuted on account of her membership in the proposed social group. As such, the Court remanded the case, to allow the agency to determined if the proposed social group met the revised social distinction and particularity requirements articulated by the Board of Immigration Appeals in Matter of W-G-R- and Matter of M-E-V-G-.  In so doing, the Court noted that it had previously determined that "persons taking concrete steps to oppose gang membership and gang authority” may be a cognizable social group, citing its decision in Pirir-Boc v. Holder.

The full text of Orellana-Lara v. Lynch can be found here: https://cdn.ca9.uscourts.gov/datastore/memoranda/2016/03/28/12-73221.pdf

Board of Immigration Appeals Requires U.S. Citizenship and Immigration Services to Consider DNA Results when Adjudicating Sibling Petitions

U.S. Citizenship and Immigration Services (USCIS) issued a memorandum in 2014 stating that it would not consider DNA analyses as evidence of a sibling relationship when adjudicating a petition filed by one sibling on behalf of another.  In a published decision, the Board of Immigration Appeals (BIA) ordered USCIS to consider DNA evidence when adjudicating sibling petitions.  Specifically, the BIA stated that "sibling-to-sibling DNA test results reflecting a degree of certainty of 99.5 percent or higher should be afforded some evidentiary value," but clarified that finding that "sibling-to-sibling DNA test results reflecting any particular percentage probability will alone be sufficient to establish a claimed full sibling relationship."  Rather, the results should be considered in conjunction with other evidence of the sibling relationship.

The full text of Matter of Ruzku can be found here: https://www.justice.gov/sites/default/files/pages/attachments/2016/03/29/3860.pdf

Ninth Circuit Rejects the BIA's Definition of an Obstruction of Justice Crime

It is not uncommon for the Ninth Circuit and the Board of Immigration Appeals (BIA) to disagree with one another about immigration matters.  As a result, a back and forth often develops, where the Ninth Circuit interprets BIA precedent, and the BIA responds by saying the Ninth Circuit incorrectly interpreted its precedent.  The definition of an obstruction of justice aggravated felony is a great example of this dialogue.

In May 2011, the Ninth Circuit issued an opinion in Trung Thanh Hoang v. Holder, a case that looked to two prior BIA decisions (Matter of Batista-Hernandez and Matter of Espinoza-Gonzalez) and held, under the agency’s interpretation, that a crime constitutes an obstruction of justice crime “when it interferes with an ongoing proceeding or investigation.”  The BIA responded with a published decision in Matter of Valenzuela Gallardo, holding that obstruction of justice requires only "the affirmative and intentional attempt, with specific intent, to interfere with the process of justice. While many crimes fitting this definition will involve interference with an ongoing criminal investigation or trial, we now clarify that the existence of such proceedings is not an essential element of an offense relating to obstruction of justice.”

On appeal, the Ninth Circuit invoked the doctrine of constitutional avoidance - that is, it found that deference typically owed to an agency interpreting the statute entrusted to it by Congress is limited if that interpretation would violate the Constitution.  With respect to the new definition laid out by the BIA in Valenzuela Gallardo, the Court observed that while "the BIA has said that not every crime that tends to obstruct justice qualifies as an obstruction of justice crime, and the critical factor is the interference with the process of justice—which does not require an ongoing investigation or proceeding—the BIA has not given an indication of what it does include in 'the process of justice,' or where that process begins and ends."  As such, its definition of an obstruction of justice crime raised serious concerns about unconstitutional vagueness.

"We do not hold that the BIA’s definition of 'obstruction of justice' must be tied to an ongoing proceeding; rather, we hold that the BIA’s new interpretation of obstruction of justice raises grave constitutional concerns because it uses an amorphous phrase—'process of justice'—without telling us what that phrase means. It is difficult to imagine a specific intent crime that could not be swept into the BIA’s expanded definition."

In light of this, the Ninth Circuit declined to defer to the BIA's decision in Valenzuela Gallardo.  

The full text of Valenzuela Gallardo v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/31/12-72326.pdf

Seventh Circuit Discusses Marriage Fraud

Nikolay Zyapkov married a U.S. citizen, who filed a petition on his behalf.  Later, he was placed into removal proceedings for overstaying his tourist visa.  While in proceedings, his daughter from a previous relationship naturalized and also filed a petition on his behalf.  US Citizenship and Immigration Services ultimately concluded that Zyapkov's marriage was fraudulent and denied the petition filed by his wife.  Strangely, however, the petition filed by his daughter was subsequently approved, despite the fact that section 204(c) of the Immigration and Nationality Act prohibits any person who has been found to have entered into a marriage for the purpose of obtaining immigration benefits to become the beneficiary of another family-based petition in the future.  Nevertheless, the Immigration Judge determined that Zyapkov's marriage was a sham, and as such, that he was inadmissible for having committed fraud to gain an immigration benefit. He denied Zyapkov's application for permanent residency based on his inadmissibility and as a matter of discretion.  

Despite the inherent contradiction between a marriage fraud finding and the approval of the subsequent petition filed by Zyapkov's daughter, the Seventh Circuit upheld the Judge's marriage fraud finding on appeal.

The full text of Zyapkov v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D03-29/C:15-2063:J:Manion:aut:T:fnOp:N:1727875:S:0

Eighth Circuit Rejects “Guatemalan repatriates who have lived and worked in the United States for many years and are perceived to be wealthy” as a Particular Social Group

In a published decision, the Eighth Circuit rejected the proposed social group of “Guatemalan repatriates who have lived and worked in the United States for many years and are perceived to be wealthy,” deeming it to be insufficiently particularized because because it turns on whether an individual is perceived as being wealthy.  The Court noted that the petitioner presented no evidence “that wealthy Guatemalans were recognized as a group that is at a greater risk of crime in general or of extortion or robbery in particular.”  

Though disappointing, the decision still leaves open the possibility that proof that wealthy Guatemalans are a higher risk of crime may persuade the Court to reconsider the cognizability of this social group.

The full text of Cinto-Velasquez v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/16/03/151198P.pdf

Ninth Circuit Finds that a California Conviction for Identity Theft is not Categorically a Crime Involving Moral Turpitude

The Court addressed two subsections of California's identity theft statute, and noted that section 530.5(a) prohibits someone knowingly obtaining personal identifying information and using that information for any unlawful purpose, while section 530.5(d)(2) prohibits someone transferring that information to someone else, knowing that the transferee will use it for an unlawful purpose.  The Court determined that conduct prohibited under the statute is not inherently fraudulent.  The statutes do not require that the defendant obtain any tangible benefit from the act of theft.  The court also noted that the conduct prescribed was not inherently base or vile because the defendant could obtain the victim's for any unlawful purpose, which including tortious, non-criminal behavior.  The court declined to determine if the statutes at issue were divisible.

The full text of Linares-Gonzales v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/21/12-71142.pdf

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