Fourth Circuit Denies Habeas Filed by the Mother of an Unaccompanied Minor

Dora Beltran filed a habeas as the next friend of her minor son, RMB.  RMB was granted VAWA deferred action based on his mother's abusive marriage.  RMB had a trouble adolescence, including criminal activity and gang affiliations.  When he was 14 years old, he ran away from home, and began working as a smuggler, assisting with the illegal entry of immigrants.  He was detained by Customs and Border Protection (CBP), and despite his mother informing CBP that he had been granted deferred action, CBP classified RMB as an unaccompanied minor and placed him in a juvenile detention facility.  When his mother requested that he be released into her custody, the Office of Refugee Resettlement (ORR) refused, finding her incapable of properly supervising and caring for RMB.

The Fourth Circuit found that RMB was properly classified as an unaccompanied minor because even though his mother was in the United States, she was not "available to provide care and physical custody.”  In addition, the court found it permissible for ORR to continue detaining RMB after an immigration judge terminated his removal proceedings because ORR could not locate a suitable guardian for him.  The court determined that RMB's continued detention did not unconstitutionally interfere with his mother's right to control his upbringing, but expressed concern that RMB may not have been given a meaningful opportunity to challenge his continued detention, and thus, his procedural due process rights may have been impinged upon.  Thus, the court remanded the case to the District Court to determine, in the first instance, if RMB was entitled to additional process.

The full text of D.B. v. Cardall can be found here:

http://www.ca4.uscourts.gov/Opinions/Published/151993.P.pdf

Eighth Circuit Denies Family-Based Social Group Asylum Application

The petitioner was threatened with harm on account of her relationship to her uncle, who had been extorted by gang members.  However, because the petitioner testified that the sole reason the gang had targeted her uncle was to extort money from him, not because he belonged to her family, the Eighth Circuit found that any harm she might suffer would not be account of her family ties.  The court also deemed the group insufficiently particularized because it was "unclear whether the gang members were attempting to threaten Milian's nuclear family, her uncle's family, or their entire extended family."

The full text of Milian v. Lynch can be found here:

http://media.ca8.uscourts.gov/opndir/16/06/152825P.pdf 

Eighth Circuit Finds that Missouri Conviction for Resisting Arrest by Fleeing is not a Crime of Violence

In the context of a federal sentencing case, the Eighth Circuit determined that a Missouri conviction for resisting arrest by fleeing is not a crime of violence because it does not require that a defendant use force or the threat of force.  Given the similarity between the definition of a crime of violence in the sentencing context and the immigration context, this case may provide valuable insight into the immigration consequences of a conviction under this statute.

The full text of United States v. Robinson can be found here: 

http://media.ca8.uscourts.gov/opndir/16/06/151697P.pdf

Ninth Circuit Determines that Oregon Convictions for Fleeing or Attempting to Elude a Police Officer and First-Degree Burglary

In a published federal sentencing case, the Ninth Circuit held that Oregon convictions for fleeing or attempting to elude a police officer and first-degree burglary were not violent felonies.  The court noted that the fleeing a police officer statute did not include as an element the use, attempted use, or threatened use of physical force.  With respect to the burglary statute, the court noted that it included burglarizing of non-structures (such as booths, vehicles, boats, and aircraft), and thus, did not match the generic definition of a burglary offense.  The court further noted that Oregon's burglary statutes are indivisible with respect to what type of structure was burglarized.

Given the similarities between the definition of a violent felony for sentencing purposes and a crime of violence for immigration purposes, as well as the identical definition of a burglary offense employed in both sentencing and immigration law, this case may provide useful arguments for why these convictions should not be considered aggravated felonies in the immigration context.

The full text of United States v. Cisneros can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/06/22/13-30066.pdf

Ninth Circuit Addresses Consular Nonreviewability

The Ninth Circuit has issued a published decision interpreting the Supreme Court's recent decision in Kerry v. Din.  The court adopted Justice Kennedy's concurrence, and determined that when a consular officer denies a visa to the spouse of a US citizen, the officer need only deny the visa under a valid statute of inadmissibility and cite a statute that specifies discrete factual predicates the consular officer must find to exist before denying a visa, or there must be a fact in the record that provides at least a facial connection to the statutory ground of inadmissibility.  Once the government has made that showing, the plaintiff has the burden of proving that the reason was not bona fide by making an affirmative showing of bad faith on the part of the consular officer who denied a visa.

The full text of Cardenas v. United States is available here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/06/21/13-35957.pdf

Sixth Circuit Determines that the Possibility of Jury Nullification does not Establish Prejudice for Post-Conviction Motion

In order to vacate a plea based on ineffective assistance of counsel, a defendant must show that his attorney's performance was deficient and that he was prejudiced by this deficiency.  This latter requirement is objective, not subjective, and thus, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.  It is difficult for a petitioner to make this showing if the evidence of his guilt was overwhelming, even if he states that he would have preferred to go to trial (no matter how small the odds of success) to try to avoid the immigration consequences that would certainly accompany the offered plea.  

The court affirmed its prior holding that "no rational defendant charged with a deportable offense and facing 'overwhelming evidence' of guilt would proceed to trial rather than take a plea deal with a shorter prison sentence."  The possibility of jury nullification cannot be considered when determining if a rational defendant would have rejected the plea.

The full text of Lee v. United States can be found here: 

http://www.ca6.uscourts.gov/opinions.pdf/16a0135p-06.pdf

Third Circuit Finds that Special Court Martial is a Conviction

The Third Circuit has determined that a special court martial qualifies as a conviction for immigration purposes even though the court martial need necessarily be presided over by a judge.  The court acknowledged several characteristics of a special court martial that make it similar to a criminal court proceeding.  Specifically, the consequences of a finding of guilt are similar, and defendants in both proceedings enjoy similar rights.  

The full text of Gourzong v. Attorney General can be found here: 

http://www2.ca3.uscourts.gov/opinarch/152645p.pdf

Ninth Circuit Grants Petition for Rehearing En Banc in LGBT Asylum Case

The Ninth Circuit has withdrawn its opinion in Bringas-Rodriguez v. Lynch and agreed to rehear the case en banc.  The decision was widely viewed as severely limited asylum-related relief for gay men from Mexico.  

The order granting rehearing en banc can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/06/14/13-72682ebo.pdf

My original blog post on the decision can be found here: http://www.sabrinadamast.com/journal/2015/11/22/ninth-circuit-denies-asylum-related-relief-for-gay-male-from-mexico

Ninth Circuit Finds that an Idaho Conviction for Sexual Abuse of a Child Under Age 16 does not Match the Generic Definition of Sexual Abuse of a Minor

In an unpublished decision, the Ninth Circuit determined that an Idaho conviction for sexual abuse of a child under age 16 does not match the generic federal definition of sexual abuse of a minor.   The generic definition includes statutes where (1) the conduct proscribed is sexual; (2) the statute protects a minor; and (3) the statute requires abuse. Abuse is “physical or psychological harm in light of the age of the victim in question,” and sexual contact with a victim under the age of fourteen is per se abusive.  The elements of the Idaho statute at issue are: (1) sexual contact, defined as any physical contact; (2) with a minor child under sixteen; and (3) with the intent to gratify the lust, passions, or sexual desire of the actor, minor child, or third party.  Because the statute does not “expressly include physical or psychological abuse of a minor as an element of the crime,” and is “not limited to conduct targeting younger children,” it is overbroad.  Though this decision arose in the context of a criminal sentencing case, the same definition of sexual abuse of a minor is employed in the immigration context, and thus, the decision provides guidance on the immigration consequences of a conviction under this statute.

The full text of United States v. Haycock can be found here: 

https://cdn.ca9.uscourts.gov/datastore/memoranda/2016/06/14/14-30152.pdf

Eleventh Circuit Construes Georgia's "Theft By Taking" Statute

The Eleventh Circuit has determined that Georgia's "theft by taking" statute is not categorically a theft offense.  The statute includes obtaining property through fraudulent means, and thus, with the owner's consent.  This conduct falls outside the generic definition of a theft offense.

The full text of Vassell v. Attorney General can be found here: 

http://media.ca11.uscourts.gov/opinions/pub/files/201511156.pdf

Eleventh Circuit Addresses Prolonged Mandatory Detention

The Eleventh Circuit has ruled that the prolonged detention of non-citizens with criminal records without bond hearings raising serious due process concerns.  Though the court declined to adopt a bright line rule requiring a bond hearing at any particular time period (i.e. after 6 months of detention), it did hold that a habeas petition could be filed when detention is no longer reasonable in light of the goals of the mandatory detention statute (preventing flight and future criminal acts).  The court outlined several factors to be considered in this analysis: 1) the amount of time that the criminal alien has been in detention without a bond hearing; 2) why the removal proceedings have become protracted (i.e. did the non-citizen request repeated continuances or file frivolous applications); 3) whether it will be possible to remove the criminal alien after there is a final order of removal; 4) whether the alien’s civil immigration detention exceeds the time the alien spent in prison for the crime that rendered him removable; and 5) whether the facility for the civil immigration detention is meaningfully different from a penal institution for criminal detention. 

The court noted there would be little chance that a non-citizen's detention would be unreasonable before the 6 month mark, but would probably become unreasonable by the 1 year mark.  However, even at that time, the non-citizen will bear the burden of proving that he is not a flight risk or a danger to the community.  

The full text of Sopo v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201411421.pdf

California Appellate Court Finds that no Notice is Required to a Parent of the Request to Appoint a Guardian At Litem in a Parentage Action

The California Court of Appeal, Second Appellate Division, has determined that no notice is required to a parent of a child's request for the appointment of a guardian at litem in a parentage action, even if the child will be seeking a finding of neglect, abuse, or abandonment by the parent in connection with a predicate order for Special Immigrant Juvenile Status.  The court noted that notice is given to a parent of the parentage action after a summons is issued, and that the summons cannot be issued until the guardian is appointed.  As such, the parent's due process rights would be protected by the later notice requirement, and the child's best interests would be represented by the guardian in the parentage action.

The full text of Alex R. v. Superior Court of Los Angeles can be found here: 

http://www.courts.ca.gov/opinions/documents/B270686.PDF

Board of Immigration Appeals Addresses Terrorism Bars

The Board of Immigration Appeals has determined that the inadmissibility provision for providing material support to a terrorist organization does not have an implied duress exception.  As such, a non-citizen deemed inadmissible under this provision must seek a waiver from the Secretary of State or the Secretary of Homeland Security in order to qualify for many immigration benefits, including asylum.

The full text of Matter of M-H-Z- can be found here: 

https://www.justice.gov/eoir/file/865856/download

Third Circuit Finds Pennsylvania Conviction for Making Terroristic Threats to be a CIMT

In an unpublished decision, the Third Circuit determined that a Pennsylvania conviction for making threats with intent to terrorize another is a crime involving moral turpitude.  "We conclude that a threat communicated with a specific intent to terrorize is an act accompanied by a vicious motive or a corrupt mind so as to be categorically morally turpitudinous."

The full text of Javier v. Attorney General: http://www2.ca3.uscourts.gov/opinarch/152781np.pdf

Fifth Circuit Grants Petition for Review of Motion to Reopen Based on Lack of Notice

The Fifth Circuit granted the appeal of a lawful permanent resident who missed his court hearing, but who later filed a motion to reopen alleging that he never received a hearing notice.  He also indicated that as soon as ICE came looking for him at his sister's home, he hired a lawyer to investigate if something was wrong with his immigration status, and he provided a change of address form with his motion to reopen.  The Fifth Circuit faulted the agency for failing to consider the diligence he showed in obtaining counsel and in filing a change of address form when he moved to reopen his proceedings.  

The full text of Torres Hernandez v. Lynch can be found here: 

http://www.ca5.uscourts.gov/opinions/pub/15/15-60116-CV0.pdf

Third Circuit Invalidates K-4 Regulations

K-4 visas are available to the unmarried children under the age of 21 of the spouses of U.S. citizens.  The visas allow the child to accompany their non-citizen parent to the United States to reunite with their U.S.-citizen step-parent.  The regulations require that the step-parent file a Form I-130, Petition for Alien Relative, classifying the K-4 beneficiary as their step-child, before the child can apply for permanent residence.  Unfortunately, the immigration law only classifies a step-child as a child if his parent married his step-parent before his 18th birthday.  That means that a child older than 18 but under 21 at the time of his parent's marriage to a U.S. citizen would qualify for a K-4 visa, but once in the United States, would not be eligible for permanent residence.  The Third Circuit invalidated the regulation requiring the filing of an I-130, finding it incompatible with the K-4 statutory provisions.

The full text of Cen v. Attorney General can be found here: 

http://www2.ca3.uscourts.gov/opinarch/144831p.pdf

Eighth Circuit Determines that First Degree Assault in Arkansas is a CIMT

The Eighth Circuit has determined that a conviction for first degree assault in Arkansas is categorically a crime involving moral turpitude.  A conviction for first degree assault requires recklessly engaging in conduct that creates a substantial risk of death or serious physical injury to another person.  The court agreed with the Board of Immigration Appeals that such conduct is "contrary to the accepted and customary rule of right and duty between man and man."

The full text of Estrada-Rodriguez v. Lynch can be found here:

http://media.ca8.uscourts.gov/opndir/16/06/152223P.pdf

Eighth Circuit Addresses Family-Based Particular Social Group

The Eighth Circuit has issued a new decision in its decision in Aguinada-Lopez addressing family-based social groups.  In the amended decision, the court assumed that family may form the basis of a particular social group, but found that the petitioner had not established a nexus between the harm he suffered and his family ties.  

The updated decision in Aguinada-Lopez v. Lynch can be found here: 

http://media.ca8.uscourts.gov/opndir/16/06/151095P.pdf

My previous blog post about the original decision can be found here: 

http://www.sabrinadamast.com/journal/2016/2/25/eighth-circuit-rejects-family-based-asylum-claim

Ninth Circuit Declines to Remand Reinstatement Case in Light of Prosecutorial Discretion Memos

The Ninth Circuit declined to remand a case for ICE to reconsider its decision to reinstate an order of removal in light of the intervening November 20, 2014 prosecutorial discretion memos.  Notably, however, the court found that the petitioner had requested an exercise of prosecutorial discretion after November 20, 2014, and the request had been denied.  Thus, the court saw no reason to remand.

The full text of Morales de Soto v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/05/31/09-72122.pdf

Fifth Circuit Addresses Jurisdiction over Reinstatement Appeals

The Fifth Circuit has determined that a reinstatement order is not final for jurisdictional purposes until withholding of removal and Convention Against torture proceedings are completed.  The court also determined that when the Board of Immigration Appeals decides some issues but remands for background and security checks as to others, its decision is not final for purposes of judicial review.

The full text of Ponce-Osorio v. Johnson can be found here: 

http://www.ca5.uscourts.gov/opinions/pub/16/16-60085-CV0.pdf