The Supreme Court Weighs in on Aggravated Felonies

The Supreme Court has determined that when applying the categorical approach to an aggravated felony ground that references a federal statute with a jurisdictional element involving interstate commerce, the state offense need contain that jurisdictional element to be a categorical match to the aggravated felony ground.  At issue in this case was New York's arson statute, which matched the federal arson statute (cross-referenced in the aggravated felony definition in the Immigration and Nationality Act) in every way except that it did not require that the arson involve interstate commerce.  The Supreme Court relied heavily on the traditional distinction drawn between substantive and jurisdictional elements, as well as the penultimate sentence of the aggravated felony definition, which indicates that it encompasses federal, state and foreign convictions.  The Court noted that requiring the statute of conviction to include an element of interstate commerce would exclude virtually all state and foreign convictions from the arson aggravated felony ground (and several other aggravated felony grounds as well).

The full text of Luna Torres v. Lynch can be found here: http://www.supremecourt.gov/opinions/15pdf/14-1096_5hdk.pdf

Ninth Circuit Denies Torture Claim of Former Gang Member

The Ninth Circuit affirmed the denial of protection under the Convention Against Torture for a former gang member from El Salvador.  "Although gang membership is illegal under Salvadoran law, Del Cid Marroquin did not establish that the government tortures former gang members or those with gang-related tattoos. In addition, Salvadoran law prohibits extrajudicial killings and violence, and there is substantial evidence that the government enforces those laws—albeit imperfectly."  The Ninth Circuit further noted that government acquiescence cannot be demonstrated by showing that the government is aware of torture but unable to stop it.  Finally, the court noted that Del Cid Marroquin's removal to El Salvador did not moot his petition because the Government has a policy of returning most non-citizens to the United States if their petitions for review are granted, and thus, the Court could still provide effective relief.

The full text of Del Cid Marroquin v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/05/18/13-71583.pdf

Ninth Circuit Reverses Alien Smuggling Finding

The Ninth Circuit reversed a finding by an Immigration Judge that a petitioner knowingly assisted in the smuggling of his mother-in-law and sister-in-law into the United States.  The Immigration Judge credited the testimony of the petitioner's wife that she was solely responsible for the attempt to smuggle her mother and sister into the United States, but refused to believe the accounts of the petitioner and his son, both of whom testified that the petitioner was not involved in the endeavor.  The Ninth Circuit noted that the Immigration Judge failed to sufficiently explain why he credited the testimony of the petitioner's wife, but not the testimony of the petitioner and his son, despite their consistent accounts.

The full text of Perez-Arceo v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/05/12/12-70635.pdf

First Circuit Addresses Requirements for VAWA Cancellation of Removal

An Immigration Judge denied Sonia Tillery's application for VAWA cancellation of removal, suggesting that she had not proven that her marriage to her abusive US citizen was bona fide.  The Board of Immigration Appeals affirmed.  The First Circuit reversed, noting that the VAWA cancellation statute (unlike the VAWA self-petition statute) does not specifically require proof of a good faith marriage.  While the statute does not permit an applicant to be inadmissible under the statutory provision related to marriage fraud, the Court noted that there was not an explicit finding of marriage fraud, and as such, remanded the case to the agency for further proceedings consistent with the opinion.

The full text of Tillery v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-1193P-01A.pdf

Ninth Circuit Limits Jurisdiction to Review Discretionary Denial of NACARA

The Ninth Circuit held that it does not have jurisdiction to review the agency's denial of NACARA special rule cancellation of removal on discretionary grounds.  The Court retains jurisdiction to review questions of law and constitutional claims in such cases.

The full text of Monroy v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/05/11/14-73933.pdf

Fifth Circuit Declines to Apply Realistic Probability Test to CIMT Analysis

The Fifth Circuit has declined to apply the realistic probability test in the context of a crime involving moral turpitude analysis.  Instead, it reaffirmed that when analyzing whether a conviction is a categorical match to the definition of a crime involving moral turpitude, the minimum conduct criminalized under the statute must be considered.

The full text of Mercado v. Lynch can be found here: http://www.ca5.uscourts.gov/opinions/pub/14/14-60539-CV0.pdf

Ninth Circuit Construes Jurisdiction to Amend Naturalization Certificates

In a pair of companion cases, the Ninth Circuit held that federal courts have jurisdiction to amend naturalization certificates issued by a federal court before the Immigration Act of 1990 came into effect on October 1, 1991.  However, the federal courts lack jurisdiction to amend naturalization certificates issued by an administrative agency.

The decision in Collins v. USCIS can found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/05/04/13-55290.pdf

The decision in Teng v. District director can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/05/04/14-55558.pdf

Board of Immigration Appeals Construes Failure to Appear Aggravated Felony Ground

Section 101(a)(43)(T) of the Immigration and Nationality Act (INA) defines an aggravated felony to include "an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment or more may be imposed."  The Board of Immigration Appeals (Board) determined that the categorical approach applies to the determination as to whether a conviction relates to a failure to appear, but the circumstance-specific approach applies to the determination as to whether the individual failed to appear pursuant to a court order, in relation to a felony charge, and that the charge carried a potential sentence of 2 or more years.  "As the DHS points out, to apply a categorical approach to those components would drastically circumscribe the reach of section 101(a)(43)(T) because very few States have 'failure to appear' laws that would categorically match its limiting requirements. 2 In addition, we observe that § 3146, the only Federal 'failure to appear' statute, is not a categorical match to all the components of section 101(a)(43)(T) of the Act. We do not believe that Congress intended section 101(a)(43)(T) to have such a narrow reach. 

The Board did note the existence of one published Ninth Circuit decision applying the categorical approach to all parts of section 101(a)(43)(T) of the INA: Renteria-Morales v. Mukasey, 551 F.3d 1076 (9th Cir. 2008).  Further guidance will be required from the Ninth Circuit before practitioners can know with certainty if the circumstance-specific approach applies to section 101(a)(43)(T) of the INA within that circuit.

The full text of Matter of Garza-Olivares can be found here: https://www.justice.gov/eoir/file/849056/download

Seventh Circuit Reverses Denial of Withholding of Removal Protection under the Convention Against Torture to a Former Gang Member

In a published decision litigated by a pro se litigant (no lawyer!), the Seventh Circuit overturned an Immigration Judge's decision, finding that he overlooked key evidence that the petitioner would be harmed in El Salvador.  "For example, there is no sign that the judge considered an affidavit from Arrazabal’s mother-in-law, with whom he had lived in El Salvador. Her testimony corroborated Arrazabal’s account of his arrest and beating by the Salvadoran police on account of his perceived gang affiliation, and his statement that MS- 13 members threatened to murder him and his family because of his refusal to participate in the gang. The affidavit had been read into the record by Arrazabal’s translator during the hearing. At the time the immigration judge said that  he would consider its contents, but he never referred to it in his decision. This was not a harmless oversight: it led the immigration judge to state, erroneously, that Arrazabal’s “claims that he was beaten by the police are not corroborated.” The mother-in-law’s affidavit may not have been as specific as one would wish, but it did provide at least some corroboration for the withholding and CAT claims. The immigration judge also overlooked a letter from Arrazabal’s uncle expressing concern that Arrazabal would be murdered by gang members if returned to El Salvador. We express no view about the accuracy of these documents. The problem is that the immigration judge’s decision says nothing about them, nor does it grapple with the views of Arrazabal’s relatives about the life-threatening danger they believed he would face upon return."

The Court also criticized the Immigration Judge's disregard of Arrazabal's assertion that there was no way he could leave the gang.  "For this important finding, the judge relied exclusively on a feature article that appeared on a news website. The article touted the success of one pilot program in San Salvador that helps former gang members find jobs. But the immigration judge read too much into the article. Its description of one company’s decision to hire 30 former gang members does not establish that throughout El Salvador (a country of more than 6 million people), all 'those who truly want to leave the gang and who are willing to actually try to leave the gang' (as the immigration judge put it) can do so."

Additionally, the Court was dissatisfied with the Judge's determination that Arrazabal had not truly renounced his gang membership.  "Nevertheless, he said that Arrazabal’s failure to take outward steps to renounce gang membership (meaning, perhaps, his failure to undergo the painful and expensive process of tattoo removal) automatically meant that he was an active rather than a former gang member and thus not a member of the latter social group. He may want to leave the gang, the immigration judge said, but '[g]ang members who have subjectively decided to leave are not socially distinct because only they know individually their own thoughts.' But the record shows that Arrazabal was not asking anyone to read his mind, and so the immigration judge was wrong to suggest that renunciation of membership required Arrazabal to take more visible steps to distance himself from the gang. Arrazabal testified that he did take objectively ascertainable steps: he repeatedly rebuffed the efforts of MS-13 members to recruit him to commit crimes and regularly paid extortion money to avoid harm. If we accept that testimony as true (as the immigration judge implicitly did in this portion of his analysis), there is little more Arrazabal could have done to distance himself from the gang without putting himself at even more risk of reprisal."

Finally, the Court reaffirmed its prior reluctance to read the "more likely than not" standard too literally.  "But that oft-repeated phrase must be understood pragmatically in the immigration context, because there is no reliable data to show just how great an applicant’s risk of torture is. All that can be said responsibly on the basis of actually obtainable information is that there is, or is not, a substantial risk that a given alien will be tortured if removed from the United States.

The full text of Arrazabal v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D05-04/C:15-2413:J:Wood:aut:T:fnOp:N:1747578:S:0

Fourth Circuit Finds DC Drug Statutes to be Divisible

In an unpublished decision, the Fourth Circuit determined that Washington DC's drug statutes are divisible.  In so doing, the Court permitted reference to a statute (outside of the statute of conviction) that contained a list of criminalized substances as part of a modified categorical approach.  

The full text of Carcamo v. Lynch can be found here: http://www.ca4.uscourts.gov/Opinions/Unpublished/151005.U.pdf

Seventh Circuit Upholds Validity of Crime Involving Moral Turpitude Statute; Finds Illinois Burglary Conviction to be a Crime Involving Moral Turpitude

The Seventh Circuit has rejected a challenge to term "crime involving moral turpitude," finding that it is not unconstitutionally vague.  The Court noted that this phrase has been part of the immigration laws dating back to 1891 and that no case has been decided holding that the phrase is vague, or that it is so meaningless as to be a deprivation of due process.

The Court also determined that a felony burglary conviction in Illinois qualified as a crime involving moral turpitude, at least under the modified categorical approach.  The statute of conviction stated that "a person commits burglary when without authority he or she knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle, railroad car, or any part thereof, with intent to commit therein a felony or theft.”

The full text of Dominguez-Pulido v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D05-05/C:14-3557:J:Flaum:aut:T:fnOp:N:1748791:S:0

Ninth Circuit Finds No Realistic Probability that CA would Prosecute Possession of Meth L

In the context of an illegal reentry case, the Ninth Circuit once examined the California drug schedules.  The petitioner argued that federal regulations exclude Meth-L found in pharmaceutical products from the federal statute, but that California's drug statutes did not include such an exception.  Thus, the petitioner argued that California's definition of methamphetamine is overbroad.  The Ninth Circuit disagreed, finding no realistic probability that California would criminalize acts involving an excluded product containing Meth L.

The full text of US v. Vega-Ortiz can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/05/06/14-50100.pdf

Eleventh Circuit Addresses Jurisdiction over Reinstated Orders of Removal and Eligibility for Asylum

The Eleventh Circuit has determined that a reinstated order of removal is not administratively final until the conclusion of any reasonable fear proceedings (and by extension, any withholding of removal and protection under the Convention Against Torture proceedings).  In addition, the Court joined the Fifth and Second Circuits in finding that a non-citizen in reinstatement proceedings is not eligible for asylum.

The full text of Jimenez-Morales v. Attorney General can be found here: http://media.ca11.uscourts.gov/opinions/pub/files/201415359.pdf

Ninth Circuit Addresses Standard of Review of Negative Reasonable Fear Finding

The Ninth Circuit has determined that it will review the agency's finding that a non-citizen does not have a reasonable fear of future persecution or torture for substantial evidence.  

The full text of Andrade-Garcia v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/04/29/13-74115.pdf

Seventh Circuit Finds Petitioner's Due Process Rights Violated By Admission of Incriminating Statement from His Ex-Wife

The Department of Homeland Security (DHS) used an incriminating written statement from the petitioner's ex-wife to prove that he had committed marriage fraud.  The DHS did not produce the wife for testimony.  The DHS had sought a subpoena for a prior hearing date for the ex-wife, but there was no evidence that it was served on her, and the DHS did not request a subpoena for the final merits hearing.  The Court found that the DHS did not engage in sufficient efforts to produce the ex-wife.

The full text of Karroumeh v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D04-29/C:15-2198:J:Rovner:aut:T:fnOp:N:1745471:S:0

Fifth Circuit Rejects Particular Social Group Comprised of "Former Informants"

The Fifth Circuit determined that "former informants," or people who report criminal activity the police, are not a cognizable social group for asylum and withholding of removal purposes.  The Court found that the proposed group lacked social distinction and particularity.

The full text of Hernandez-De La Cruz v. Lynch can be found here: http://www.ca5.uscourts.gov/opinions/pub/14/14-60730-CV0.pdf

Fourth Circuit Deems Federal Statute Overbroad

In a published decision, the Fourth Circuit addressed  18 USC 659, a statute criminalizing actions related to stolen and embezzled property.  The petitioner was convicted of possession of stolen or embezzled property.  The Board of Immigration Appeals (Board) deemed his offense to be a theft aggravated felony.  Though the Board acknowledged that possession of embezzled property would not fit the typical definition of a theft offense because embezzlement requires obtaining the property with the owner's consent through fraudulent means while theft requires obtaining the property without the owner's consent, it noted that the aggravated felony provision actually encompasses "a theft offense (including receipt of stolen property.)"  Thus, the Board concluded that possession of embezzled property fell within the ambit of "receipt of stolen property," despite the absence of a requirement that the property be obtained without the owner's consent.  The Fourth Circuit disagreed, construing the receipt of stolen property parenthetical as a subset of the larger definition of a theft offense, and thus, determined that a receipt of stolen property offense still requires that the property be obtained without the owner's consent.  As such, receipt of embezzled property would fall outside the ambit of the aggravated felony provision.  The Court concluded that the second paragraph of section 659 is not a “theft offense (including receipt of stolen property).”

The full text of Mena v. Lynch can be found here: http://www.ca4.uscourts.gov/Opinions/Published/151009.P.pdf

Eighth Circuit Finds that an Iowa Recidivist Conviction for Domestic Violence is not Categorically a Crime Involving Moral Turpitude

Section 708.2A(4) of the Iowa Code criminalizes a third or subsequent domestic violence offense.  Assault is defined in section 708.1(2) of the Iowa Code.  The Court determined that the definition of assault included "offensive" touching, which was outside the scope of morally turpitudinous conduct.  Thus, the Board of Immigration Appeals erred by finding a conviction for recidivist domestic violence was categorically a crime involving moral turpitude.

The full text of Perez Alonzo v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/16/04/152024P.pdf

Eighth Circuit Finds that Signing Petition to Remove Conditions is a Furtherance of a Conspiracy to Commit Marriage Fraud

The Eighth Circuit has determined that the filing of a Petition to Remove Conditions on Residence, when the marriage underlying the residence was fraudulent, is a continuation of a conspiracy to commit marriage fraud.  As such, when that petition is submitted within 5 years of the applicant's admission as a permanent resident, the applicant can be charged with deportability based on the commission of a crime involving moral turpitude within 5 years of admission.

The full text of Ashraf v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/16/04/143179P.pdf

First Circuit Finds that an Inconclusive Record of Conviction Meets an Applicant's Burden to Prove Eligibility for Cancellation of Removal

In a published decision, the First Circuit has determined that an inconclusive record of conviction meets an applicant's burden to prove eligibility for cancellation of removal.  In so doing, the Court recognized that whether an offense poses a statutory bar is a legal question, not a factual one.  The Court relied heavily on the Supreme Court's decision in Moncrieffe v. Holder.

The full text of Peralta Sauceda v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-2042P2-01A.pdf