Ninth Circuit Finds Reason to Believe Ex-Soccer Player Committed Serious Nonpolitical Crime

The Ninth Circuit has determined that there is sufficient reason to believe that a former professional soccer player committed a serious nonpolitical crime.  Specifically, the court found that an indictment alleging that the individual participated in the planning of three murders was sufficient evidence to find him ineligible for asylum and withholding of removal under the serious nonpolitical crime bar.

The full text of Silva-Pereira v. Lynch can be found here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/07/14-70276.pdf

Seventh Circuit Addresses Termination of Conditional Residence for a Widow of a US Citizen

The Seventh Circuit has determined that the death of a U.S. citizen during the two years of their non-citizen spouse's conditional residence automatically waives the requirement that the couple jointly file a petition to remove the conditions on the residence.  Because the waiver is automatic, there is no need to file an I-751 waiver request.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D07-07/C:14-2430:J:Williams:aut:T:fnOp:N:1788032:S:0

Sixth Circuit Finds 16(b) Definition of a Crime of Violence Unconstitutionally Vague

The Sixth Circuit, applying the Supreme Court's 2015 decision in Johnson v. United States, has determined that 18 USC 16(b) - which contains half of the definition of a crime of violence for immigration purposes - is unconstitutionally vague. 

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

http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0155p-06.pdf

Fifth Circuit Determines that Texas Assault Statute is Indivisible

The Fifth Circuit has determined that the mens rea alternatives listed in the Texas assault statute are alternative means, not alternative elements.  Thus, with respect to whether a misdemeanor assault conviction is a crime involving moral turpitude, the statute is overbroad and indivisible.  The court recognized that this finding was mandated by the Supreme Court's recent decision in Mathis v. United States. 

The full text of Gomez-Perez v. Lynch:

http://www.ca5.uscourts.gov/opinions/pub/14/14-60808-CV0.pdf

Fourth Circuit Finds that a Virginia Conviction for Forgery of a Public Record is an Aggravated Felony

The Fourth Circuit has determined that a Virginia conviction for forgery of a public record is categorically an offense related to forgery, and thus, an aggravated felony if accompanied by a sentence of one year or more of imprisonment.

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

http://www.ca4.uscourts.gov/Opinions/Published/151599.P.pdf

Third Circuit Denies Naturalization for Individual who Committed Fraud

The Third Circuit determined that a Syrian national who claimed to be Lebanese to obtain Temporary Protected Status, and who subsequently obtained his lawful permanent residence without disclosing the fraud or seeking a waiver, was never lawfully admitted to permanent residence.  As such, his application for naturalization was properly denied.

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

http://www2.ca3.uscourts.gov/opinarch/153769p.pdf

Ninth Circuit Addresses Jurisdiction to Review Denials of Sua Sponte Motions to Reopen

The Ninth Circuit has determined that it has jurisdiction to review the denial of a sua sponte motion to reopen by the agency to determine if the denial rested on legal or constitutional error.  In the instant case, the Board of Immigration Appeals denied the motion to reopen based on the erroneous conclusion that the non-citizen would not be eligible for 212(c) waiver even if his proceedings were reopened.  Because he would be eligible for such a waiver, the Ninth Circuit sustained the appeal, and remanded for the Board of Immigration Appeals to determine if sua sponte discretion should be exercised based on the proper legal framework.

The full decision in Bonilla v. Lynch can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/12/12-73853.pdf

First Circuit Construes Derivative Citizenship Statute

The First Circuit has determined that a child whose surviving parent naturalized before his 18th birthday does not derive citizenship if he does not live in the United States as a lawful permanent resident prior to his 18th birthday.  The court construed former section 321(a) of the INA.

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

http://media.ca1.uscourts.gov/pdf.opinions/15-1805P-01A.pdf

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