Third Circuit Finds that Pennsylvania Conviction for Making Terroristic Threats is a Crime Involving Moral Turpitude

The Third Circuit has determined that a Pennsylvania conviction for making terroristic threats - which criminalizes communicating, either directly or indirectly, a threat to commit any crime of violence with intent to terrorize another - is categorically a crime involving moral turpitude.  The petitioner argued that “crime of violence” encompasses simple assault, and as such, the statute criminalizes threatening to commit a simple assault (a non-turpitudinous crime).  The court rejected his argument, finding that the requirement of a specific intent to terrorize differentiated the statute from simple assault, and that such an intent demonstrates that the defendant acted with a vicious motive or corrupt mind.

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

http://www2.ca3.uscourts.gov/opinarch/152781p.pdf

Ninth Circuit Finds that California Conviction for Involuntary Manslaughter is not a Crime of Violence

The Ninth Circuit has determined that a California conviction for involuntary manslaughter does not qualify as a crime of violence because it includes reckless conduct.  A crime of violence, as defined in 18 USC 16, requires intentional conduct.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/01/14-10452.pdf

Ninth Circuit Reverses Denial of Motion to Reopen for Indonesian Christian Seeking Asylum

The Ninth Circuit reversed the Board of Immigration Appeals' denial of a motion to reopen based on changed country conditions for an Indonesian convert to Catholicism.  The court noted that the country conditions evidence of increased violence against Christians and the declaration from the petitioner's sister about her own experience as a Christian in Indonesia were sufficient to show changed circumstances, and when analyzed under the disfavored group analysis, sufficient to show a risk of individualized harm.  As such, the court deemed the petitioner prima facie eligible for asylum.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/01/13-71833.pdf

Ninth Circuit Affirms Precedent Finding that California Conviction for Making Criminal Threats is a Crime of Violence

The Ninth Circuit has affirmed its previous finding that a conviction under section 422 of the California Penal Code is a crime of violence aggravated felony.  In so doing, it rejected contrary case law from two other circuits.  

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/01/11-72286.pdf

Second Circuit Finds that Immigrants in WITHHOLDING AND CAT ONLY PROCEEDINGS are Eligible for Bond

The Second Circuit has determined that a reinstatement order is not final while withholding and Convention against Torture proceedings are ongoing.  As such, a person in the midst of these proceedings is not subject to any form of "mandatory detention," and is eligible for a bond hearing.

The full text of Guerra v. Shanahan can be found here: 

http://www.ca2.uscourts.gov/decisions/isysquery/666a8fa5-650c-420c-b599-6224b3828f04/8/doc/15-504_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/666a8fa5-650c-420c-b599-6224b3828f04/8/hilite/

Third Circuit Finds that Immigration Judge has no Authority to Grant a U Visa Waiver

In a published decision, the Third Circuit has determined that an Immigration Judge has no authority to grant a waiver of inadmissibility in conjunction with a U visa.  In so doing, the court creates a circuit split, with the Seventh Circuit having previously found that an Immigration Judge does have this authority.

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

http://www2.ca3.uscourts.gov/opinarch/151232p.pdf

Board of Immigration Appeals Explores the Limitations of the False Claim to US Citizenship Provision

In a published decision, the Board of Immigration Appeals (BIA) has attempted to define the conduct that falls under the false claim to U.S. citizenship inadmissibility and deportability grounds.  The BIA laid out two requirements.  First, the Immigration Judge must find direct or circumstantial evidence demonstrating that the false claim was made with the subjective intent of achieving a purpose or obtaining a benefit under the Act or any other Federal or State law. Second, the presence of a purpose or benefit must be determined objectively—that is, the United States citizenship must actually affect or matter to the purpose or benefit sought. 

The BIA gave certain examples of conduct that might fall within or outside of the ambit of these provisions.  For example, making a false claim to a bank in order to obtain a loan might not fall within the ambit of these provisions unless citizenship status is a prerequisite to obtaining the loan.  Similarly, lying about one's citizenship status to the police for a minor offense (one unlikely to result in enforcement actions being taken by ICE under its Priority Enforcement Program) may not fall within the ambit of the provisions, but making a false claim to ICE in order to avoid removal proceedings would fall within the provisions.

The full text of Matter of Richmond can be found here:

https://www.justice.gov/eoir/file/879626/download

Fifth Circuit Finds that Equitable Tolling Applies to the Filing Deadline for Motions to Reopen

In a break from its past precedent following the Supreme Court's decision in Mata v. Lynch, the Fifth Circuit has determined that equitable tolling can be applied to the filing deadline for statutory motions to reopen.  In this case, a former lawful permanent resident moved to reopen his case 11 years after he was ordered removed based on several positive changes in law.  The Fifth Circuit remanded to determine if these changes in law could toll the 90 day filing deadline typically applied to a motion to reopen.  Though the Court expressed no opinion on whether tolling was appropriate, it did note that the petitioner would need to prove: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.

The full text of Lugo-Resendez v. Lynch can be found here: 

http://www.ca5.uscourts.gov/opinions/pub/14/14-60865-CV0.pdf

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