Board of Immigration Appeals Reviews Safeguards for Mentally Incompetent Individual

The Board of Immigration Appeals (Board) has determined that an Immigration Judge's determination as to what safeguards are necessary to protect the rights of a mentally incompetent individual in removal proceedings is a discretionary determination, and thus, subject to de novo review by the Board.  In the instant case, though the Immigration Judge was in receipt of a psychological evaluation noting that the appointment of counsel would not be a sufficient safeguard, the Board faulted the Judge for terminating proceedings, instead of appointing counsel and allowing counsel time to locate the individual's family and friends and attempt to obtain relevant information about his removability or eligibility for relief from them.

The full text of Matter of M-J-K- can be found here: 

https://www.justice.gov/eoir/file/871786/download

Eighth Circuit Finds no Due Process Violation when Immigration Judge Fails to Advise Individual of Ability to Apply for Asylum

The Eighth Circuit determined that an Immigration Judge did not violate the rights of a represented individual by failing to advise him of his right to apply for asylum.  The individual had repeatedly stated that his country suffered from a lot of violence, but had not explicitly stated a fear of returning to his country.

The full text of Rivas-Quilizapa v. Lynch can be found here: 

http://media.ca8.uscourts.gov/opndir/16/06/152113U.pdf

Second Circuit Finds that New York Conviction for Possession of Child Pornography is an Aggravated Felony

The Second Circuit has determined that a conviction for possession of child pornography in New York is an aggravated felony.  Applying the Supreme Court's recent decision in Torres v. Lynch, the court determined that a state conviction need not contain an element involving interstate commerce in order to match the federal definition of possession of child pornography.

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

http://www.ca2.uscourts.gov/decisions/isysquery/eddbff90-990d-4c66-94d7-24b27b67a1c7/3/doc/14-3631_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/eddbff90-990d-4c66-94d7-24b27b67a1c7/3/hilite/

Eighth Circuit Finds that Minnesota Second-Degree Assault Conviction is a Violent Felony

In the context of a criminal sentencing case, the Eighth Circuit has ruled that a conviction for second-degree assault in Minnesota qualifies as a violent felony.  A violent felony is a crime that requires the use, attempted use, or threatened use of physical force.  The court found that because assault in Minnesota requires an act with intent to cause fear in another of immediate bodily harm or death, by extension, the act must involve the threatened use of physical force.

Given the similarity between the definition of a violent felony and the definition of a crime of violence in the immigration context, this case may provide valuable insight into the immigration consequences of a conviction for second-degree assault in Minnesota.

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

http://media.ca8.uscourts.gov/opndir/16/06/152447P.pdf

Fifth Circuit Construes Kansas Drug Paraphernalia Statute

In Mellouli v. Lynch, the Supreme Court ruled that Kansas' drug paraphernalia statute is not categorically a law related to a controlled substance.  The Court did not address whether the statute was divisible.  In an unpublished decision, the Fifth Circuit implied that the statute may be divisible, and thus, subject to the modified categorical approach.

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

http://www.ca5.uscourts.gov/opinions/unpub/15/15-60344.0.pdf

Eighth Circuit Addresses Witness-Based Particular Social Group

The Eighth Circuit rejected the asylum claim of a Kenyan who is a member of the Kikuyu ethnic group.  The applicant was persecuted by members of the Mungiki criminal group.  The court found that the applicant's refusal to join the Mungiki did not qualify as a political opinion.  The court also rejected his proposed social group comprised of "witnesses to criminal activity," finding that this group was not socially distinct or particularized.  The court determined that there was no evidence that Kikyuys who resist recruitment by the Mungiki are socially distinct within Kenyan society.  Finally, the court declined to find that those who resist recruitment by the Mungiki are analogous to defectors from the Mungiki (a group the court had previously recognized for asylum purposes).

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

http://media.ca8.uscourts.gov/opndir/16/06/152376P.pdf

Board of Immigration Appeals Construes Good Moral Character Requirement

The Board of Immigration Appeals has reaffirmed that a person who provides false testimony under oath before an Immigration Judge for the purpose of obtaining an immigration benefit cannot establish that he is a person of good moral character.  In determining whether the evidence is sufficient to establish that an applicant gave false testimony, the judge must conduct a case-by-case assessment of whether the applicant had a subjective intent to deceive the court.  

The full text of Matter of Gomez Beltran can be found here: 

https://www.justice.gov/eoir/file/871131/download

Third Circuit Addresses Immigration Consequences of Pennsylvania Conviction for Possession of Cocaine with Intent to Distribute

The Third Circuit determined that a Pennsylvania conviction for possession of cocaine with intent to distribute is an aggravated felony.  The court also determined that nothing in the regulations or the statute required the Department of Homeland Security to seek termination of removal proceedings under section 240 of the Immigration and Nationality Act (INA) before issuing a Final Administrative Order of Removal under section 238(b) of the INA.

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

http://www2.ca3.uscourts.gov/opinarch/151860p.pdf

Third Circuit Addresses Jurisdiction Following Reissuance of Decision by BIA; Construes Domestic Violence-Based Asylum Grounds

The Third Circuit has held that it retains jurisdiction over a petition for review after the Board of Immigration Appeals (Board) reopens the underlying proceeding solely to reissue its previous decision.  The court also cast doubt on whether the Board's leading precedent on domestic violence-based asylum claims, Matter of A-R-C-G-, can be extended to unmarried women in abusive domestic relationships.

The full text of Ordonez-Tevalan v. Attorney General can be found here:

http://www2.ca3.uscourts.gov/opinarch/152187p.pdf

Third Circuit Opines on the Definition of a Conviction for Immigration Purposes

For immigration purposes, a conviction requires either a formal adjudication of guilty or a withheld adjudication of guilty coupled with a restraint on the person's liberty.  The Third Circuit has determined that a Pennsylvania "determination of guilt without further penalty" qualifies as a conviction because it entails a formal finding of guilt, even though it does not include any restraint on a person's liberty.  The court rejected the argument that because the federal definition of a formal judgment of guilt includes "a plea, finding, adjudication, and sentence," a state criminal scheme that permits a guilty finding without the imposition of a punishment can not qualify as a conviction for immigration purposes. 

The full text of Frias-Camilo v. Attorney General can be found here: 

http://www2.ca3.uscourts.gov/opinarch/153733p.pdf

Supreme Court Addresses Modified Categorical Approach

In a decision on criminal sentencing enhancements, the Supreme Court has clarified what qualifies as an "element" of a crime, as opposed to a "means" of committing a crime.  "'Elements' are the 'constituent parts' of a crime’s legal definition—the things the 'prosecution must prove to sustain a conviction.'  At a trial, they are what the jury must find beyond a reasonable doubt to convict the defendant, and at a plea hearing, they are what the defendant necessarily admits when he pleads guilty."  

To determine if a fact is an element, an adjudicator may look to the statutory text, as well as state case law and jury instructions.  The Court noted that if the statutory alternatives carry different punishments, they must be elements.

If these sources do not clearly answer the question, an adjudicator may look at certain documents in the record of conviction - such as the charging document - to determine the elements of the statute.  Typically, any facts charged in the alternative in a charging document will NOT be considered elements.  Conversely, an indictment and jury instructions could indicate, by referencing one alternative term to the exclusion of all others, that the statute contains a list of elements, each one of which goes toward a separate crime. 

Most interesting perhaps is the Court's discussion of what an adjudicator should do if all of these sources do not shed light on whether a fact is an element or a means.  "Of course, such record materials will not in every case speak plainly, and if they do not, a sentencing judge will not be able to satisfy 'Taylor’s demand for certainty' when determining whether a defendant was convicted of a generic offense."  This reference to certainty suggests that any ambiguity regarding whether a fact is an element or a mean should be construed in  favor of the criminal defendant (or the immigration petitioner).  Notably, footnote 2 in the decision clearly states that the decision's analysis applies to immigration proceedings as well.

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

http://www.supremecourt.gov/opinions/15pdf/15-6092_1an2.pdf  

Supreme Court Splits on Executive Action

In a 4-4 vote, the Supreme Court split in its decision in United States v. Texas.  The tie vote allows the Fifth Circuit's decision to halt President Obama's executive action on immigration (known as DAPA and expanded DACA) to remain in place.  Unfortunately, we will not see the implementation of these programs in the near future.

The Court's decision can be found here:

http://www.supremecourt.gov/opinions/15pdf/15-674_jhlo.pdf

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