Ninth Circuit Addresses Immigration Consequences of Federal Counterfeiting Conviction

The Ninth Circuit has determined that 18 U.S.C. § 2320 (trafficking in counterfeit goods) is not an aggravated felony involving fraud or deceit because a conviction can rest upon conduct that is merely like to cause confusion or mistake, and does not necessarily require any intent to deceive another person.  Thus, the District Court erred in finding that the applicant was not eligible for naturalization as person lacking in good moral character.  The Court also suggested that a conviction under this statute would not qualify as a crime involving moral turpitude, and suggested that past precedent interpreting the immigration consequences of California's counterfeit goods statute may no longer be good law. 

The full text of Wang v. Rodriguez can be found here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/27/14-15779.pdf

Ninth Circuit Addresses "Reason to Believe" that Applicant Engaged in Money Laundering

In an unpublished decision, the Ninth Circuit noted that a dismissed indictment for conspiracy to commit money laundery, without more, is not sufficient to demonstrate that an applicant engaged in money laundering.  

"Even assuming that participation in a conspiracy to commit money laundering constitutes 'reason to believe' that the participant in fact engaged in money laundering, the evidence in this case falls short.  A dismissed indictment, without more, does not constitute “reason to believe” that the defendant committed the crime charged." 

This language may provide valuable argumentation for lawyers dealing with "reason to believe" standards, such as those related to drug trafficking.

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

https://cdn.ca9.uscourts.gov/datastore/memoranda/2016/07/21/13-70693.pdf

Sixth Circuit Denies Adjustment of Status due to Inconsistent Information about Applicant's Manner of Entry

An applicant for adjustment of status initially indicated that he entered the United States with a visa.  Later, he stated that he entered without inspection with the assistance of a smuggler.  His application for adjustment of status under section 245(i) of the INA was denied and he was referred to Immigration Court, where he conceded that he entered the United States with admission.  Nevertheless, the Immigration Judge denied his application for adjustment of status, finding insufficient evidence that he entered without inspection.  The Sixth Circuit affirmed, noting that different burdens of proof apply in the removability and eligibility for relief context, and thus, the applicant's concession of removability does not necessarily meet his burden of demonstrating that he entered without inspection, as required under section 245(i) of the INA.  The decision seems to overlook the fact that individuals who enter with a visa, but fail to maintain lawful nonimmigrant status, are also eligible to adjust under section 245(i) of the INA.  

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

http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0170p-06.pdf

First Circuit Rejects Gang Recruitment Asylum Claim

The First Circuit has rejected a political opinion- and particular social group-based asylum claim from an applicant resisting gang recruitment efforts.  The Immigration Judge and the Board of Immigration Appeals both determined that the applicant was being targeted by gang members (and would face any future targeting) because the gang members wanted to increase their ranks, and not because of the applicant's anti-gang political views or because of his familial relationship to people in the United States. 

The full text of Alvizures-Gomes v. Lynch can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/15-2181P-01A.pdf

Ninth Circuit Grants Motion to File New Evidence to Show Compliance with Mailbox Rule by Detainee

Typically, a petition for review must be received by the clerk's office of the federal appeals court within 30 days of the agency's final decision.  However, a detainee or inmate need only show that mailed his petition by the 30th day, in accordance with the detention facility's procedures for mailing legal documents.  In the instant case, the Ninth Circuit granted a motion to file new evidence (an extremely unusual procedure at a federal appeals court) to allow a detainee to prove that he had complied with this rule, and thus, that the Court had jurisdiction to review his appeal even though the petition for review was received by the clerk's office five days after the 30 day deadline.  The court noted that when a detainee's declaration of compliance with the mailbox rule is presented after his petition for review, the court has the discretion to refuse to consider the declaration.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/19/14-73178.pdf

Eighth Circuit Denies Petition for Review of a Reinstatement Order

In this matter, the petitioner presented a photocopy of a Forma Migratoria Estadistica - a document issued by the Mexican government to Mexican citizens when they arrive or depart from Mexico at a port of entry - to the Department of Homeland Security (DHS), in order to demonstrate that he timely complied with an Immigration Judge's voluntary departure order, and thus, was not subject to an order of removal.  The DHS declined to reopen the reinstatement order.  The Eighth Circuit affirmed, finding that the petitioner had several earlier opportunities to contest the finding that he was subject to an order of removal, but did not do so, making his claims about timely departure suspect.

The full text of Perez-Garcia v. Lynch can be found here: 

http://media.ca8.uscourts.gov/opndir/16/07/142842P.pdf

Fifth Circuit Denies Applicant's Claim to Citizenship

The Fifth Circuit has determined that the Child Citizenship Act does not convey derivative citizenship on the child of a citizen who was interview for his permanent residence before his 18th birthday, but whose application for residence was not approved until after his birthday.  The Court declined to estop the Government from denying the applicant's citizenship claim even though there was a four-year delay in approving his application.

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

http://www.ca5.uscourts.gov/opinions/pub/14/14-60693-CV0.pdf

Ninth Circuit Addresses Whistleblowing as a Political Opinion

The Ninth Circuit adopted the Board of Immigration Appeals' framework for evaluating asylum claims based on whistleblowing.  The court must evaluate  (1) whether and to what extent the alien engaged in activities that could be perceived as expressions of anticorruption beliefs; (2) any direct or circumstantial evidence that the alleged persecutor was motivated by the alien’s perceived or actual anticorruption beliefs; and (3) evidence regarding the pervasiveness of government corruption, as well as whether there are direct ties between the corrupt elements and higher level officials.  However, the court determined that the applicant failed to present evidence that his purported persecutors were motivated by his anticorruption beliefs, or that the corruption was even connected to government actors.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/13/13-71778.pdf

Eleventh Circuit Declines to Exercise Jurisdiction over Denied Sua Sponte Motion to Reopen

Splitting from several other circuits who have addressed the issue, the Eleventh Circuit has determined that it lacks jurisdiction to review any sua sponte motion denied by the Board of Immigration Appeals (Board).  Even if the Board's decision is based on an error of law, the federal court does not have jurisdiction to review.

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

http://media.ca11.uscourts.gov/opinions/pub/files/201511954.pdf

Tenth Circuit Addresses "Admission in any Status" for Cancellation of Removal

In an unpublished decision, the Tenth Circuit assumed that a procedurally regular admission, as described in Matter of Quilantan, would qualify as an admission in any status for the purposes of cancellation of removal for lawful permanent residents.  The court, however, found insufficient evidence that the applicant had been admitted at the port of entry in such a manner.

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

https://www.ca10.uscourts.gov/opinions/15/15-9577.pdf

Second Circuit Construes Pennsylvania Conviction for Possession of Counterfeited Substance

The Second Circuit has determined that a 1997 Pennsylvania conviction for possession of a counterfeit controlled substance is categorically a controlled substance offense.  The court noted that both the definition of a counterfeit controlled substance in the Pennsylvania statute substantially matched the definition in the Controlled Substances Act (CSA).  The court also noted that in 1997, the Pennsylvania controlled substances schedule was identical to the schedules in the CSA.

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

http://www.ca2.uscourts.gov/decisions/isysquery/aad98635-d3b8-459c-9e35-98d432ad4c06/5/doc/15-582_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/aad98635-d3b8-459c-9e35-98d432ad4c06/5/hilite/

Third Circuit Affirms Denial of Naturalization

The Third Circuit has affirmed the denial of naturalization for an applicant who committed fraud to obtain his permanent residence.  The court found that he was never lawfully admitted to permanent residence.  In addition, although the 5 year statute of limitations on rescission proceedings protected him from deported for the fraud or from losing his residence, it did not retroactively cure that the residence was not lawfully granted.

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

http://www2.ca3.uscourts.gov/opinarch/144816p.pdf

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