Ninth Circuit Addresses Proper Venue and Jurisdiction in a Reinstatement Case

In an interesting procedural case, the petitioner was ordered removed in the Ninth Circuit, but later had her order reinstated in the Eleventh Circuit after illegally re-entering the United States.  An Immigration Judge in the Eleventh Circuit denied her application for withholding of removal and protection under the Convention Against Torture based on the persecution she suffered as a transgender woman in Mexico.  The Board of Immigration Appeals (Board) affirmed, and the petitioner appealed the Board's decision to the Ninth Circuit.  Though the Ninth Circuit acknowledged that venue was proper in the Eleventh Circuit, it also held that improper venue did not strip its jurisdiction to hear the case.  It further determined that the interests of justice were not served by transferring the appeal to the Eleventh Circuit, as it had already been fully briefed at the Ninth Circuit and the petitioner may have suffered legitimate confusion when she filed her petition for review in the Ninth Circuit, given that her initial asylum claim was denied in the Ninth Circuit and her in absentia order was issued in the Ninth Circuit.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/19/12-71735.pdf

Fifth Circuit Addresses Whether Adjustment of Status Applicants are Applicants for Admission

In a somewhat convoluted case, the Fifth Circuit addressed whether an individual who had adjusted status in the United States after being admitted to the United States as a nonimmigrant could be charged with deportability as a non-citizen inadmissible at the time of adjustment of status because he was not in possession of a valid entry document as defined in section 212(a)(7)(A) of the INA.  The court noted that section 212(a)(7)(A) of the INA only applies to applicants for admission, and concluded that a person already admitted to the United States on a nonimmigrant visa, who subsequently applies for adjustment of status, cannot be deemed an applicant for admission, as contemplated in section 212(a)(7)(A) of the INA.  Thus, the petitioner, who adjusted status based on a fraudulent marriage, was not removable as charged, though the court clearly noted that there were likely other charges of removability that could be lodged against him.

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

http://www.ca5.uscourts.gov/opinions/pub/14/14-60065-CV0.pdf

Ninth Circuit Remands for Board of Immigration Appeals to Consider Eligibility for Provisional Waiver

In two unpublished cases, the Ninth Circuit faulted the Board of Immigration Appeals (BIA) for denying two motions to reopen to seek provisional waivers where the BIA denied solely on timeliness, without addressing whether exceptional circumstances existed that warranted sua sponte reopening.  

In one case, the Ninth Circuit noted that "[t]he BIA abused its discretion in denying Benitez’s motion to reopen, however, because it appears not to have considered whether Benitez was entitled to the requested relief as a matter of discretion."  In the second case, the NInth Circuit noted that "[t]he BIA indicated that the law precluded reopening, which appears to be contrary to a regulation providing that the BIA always has discretion to reopen proceedings.  Indeed, the Government’s position at oral argument was that the BIA had discretion and that the BIA had exercised that discretion by denying reopening.  In light of the Government’s concession that reopening is a matter of discretion, the BIA’s apparent failure to recognize its discretionary authority and then to consider whether to grant or deny reopening as a matter of discretion warrants remand."

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

https://cdn.ca9.uscourts.gov/datastore/memoranda/2016/08/16/14-73614.pdf

The full decision in Osegueda de Alfaro v. Lynch can be found here:

https://cdn.ca9.uscourts.gov/datastore/memoranda/2016/08/16/14-72679.pdf

Ninth Circuit Determines that Florida Conviction for Manslaughter does not Qualify as a Crime of Violence under the Sentencing Guidelines

The Ninth Circuit has determined that a Florida conviction for manslaughter does not qualify as a crime of violence under the federal sentencing guidelines because the statute does not require a minimal mens rea of at least recklessness.  Given that the Ninth Circuit has defined a crime of violence in the immigration context to require a higher mens rea than recklessness, this decision will provide immigration attorneys with a great argument that a conviction under this statute is not a crime of violence aggravated felony.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/16/15-10051.pdf

Fifth Circuit Determines the Appropriate Standard of Review for the Firm Resettlement Bar

The Fifth Circuit has determined that the proper standard of review to apply to the Board of Immigration Appeals' (Board) factual determination that an asylum applicant was firmly resettled in a third country is substantial evidence.  In the instant case, the petitioner did not meaningful contest the Immigration Judge's finding that she was firmly resettled in Mexico, but asserted that an exception to the firm resettlement bar applied in her case - namely, that she remained in Mexico only as a necessary consequence of her flight from Bolivia.  The agency disagreed, noting the length of her residency in Mexico, her travels in and out of Mexico, and her ability to work in Mexico.  As such, the court found that substantial evidence supported the conclusion that she was not in Mexico only as long as necessary to arrange onward travel.

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

http://www.ca5.uscourts.gov/opinions/pub/15/15-60126-CV0.pdf

First Circuit Rejects Domestic Violence-Based Asylum Claim

The First Circuit rejected an appeal from a petitioner who claimed to have been persecuted on account of her membership in the particular social group comprised of "Salvadoran women in intimate relationships with partners who view them as property."  The petitioner testified that she had a relationship with her abuser for approximately 18 months, but that the two of them never lived together.  He became progressively more abusive throughout the relationship, inflicting verbal, physical, and sexual abuse on her.  She conceived a child as a result of the sexual abuse.  Her abuser was incarcerated on unrelated charges during the last year of their relationship.  He called her and threatened her from jail on a regular basis.  He purchased a home for her to live in with their child.  He remained incarcerated when she left El Salvador.  

The First Circuit concluded that "[b]eing in an intimate relationship with a partner who views you as property is not an immutable characteristic."  The court distinguished the decision from the married woman in Matter of A-R-C-G-, noting that this applicant had never lived with her abuser and her abuser was incarcerated for the majority of their relatively short relationship.  As such, the court concluded that she could have left the relationship.  

The decision is alarming and seems to misunderstand the dynamics of domestic violence.  The abuser's financial control, for example, was not addressed as a possible reason that the petitioner could not leave the relationship.  In addition, the court failed to recognize that the birth of the petitioner's child - a product of rape - could emotionally, legally, and financially bind her to her abuser, who likely had parental rights to see his child.

The full decision in Vega-Ayala v. Lynch can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/15-2114P-01A.pdf

Seventh Circuit Finds Credible Fear Interview Notes Insufficiently Reliable to Support Adverse Credibility Determination

The Seventh Circuit has determined that an asylum officer's notes from a credible fear interview are insufficiently reliable to sustain an adverse credibility determination.  The court noted that the officer's notes specifically state they are not a verbatim transcript and do not represent an in-depth assessment of the applicant's asylum claim.  

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D08-05/C:15-2603:J:PerCuriam:aut:T:op:N:1806548:S:0

En Banc Fifth Circuit Reverses Precedent Regarding 18 USC 16(b)

Sitting en banc, the Fifth Circuit has reversed its decision earlier this finding that 18 USC 16(b) is unconstitutionally vague.  Instead, the court differentiated 16(b) from the residual clause of the Armed Career Criminal Act (declared unconstitutionally vague by the Supreme Court in 2015 in Johnson v. United States), and declined to extend the decision in Johnson.  The circuits have split on the constitutionality of 16(b) following Johnson, and it seems likely that the Supreme Court will need to take up the issue in the near future.

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

http://www.ca5.uscourts.gov/opinions/pub/15/15-40041-CR2.pdf

My blog post about the earlier 3 panel decision in the case (reversed by the en banc decision) can be found here: 

http://www.sabrinadamast.com/journal/2016/2/12/fifth-circuit-finds-18-usc-16b-to-be-unconstitutionally-vague

Fifth Circuit Finds that Revocation of Temporary Residence does not Vitiate Procedurally Regular Admission

Samuel Gomez was granted temporary residence, given him the ability to travel abroad and re-enter the United States.  He did so, and was admitted upon return through a port of entry.  His temporary residence was later revoked.  The Fifth Circuit determined that this revocation did not undermine the fact of his admission at a port of entry.

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

http://www.ca5.uscourts.gov/opinions/pub/14/14-60661-CV1.pdf

Board of Immigration Appeals Addresses National Security Concerns in the Context of a Bond Hearing

The Board of Immigration Appeals upheld the denial of bond to an applicant who possessed a stolen, altered Syrian passport, which the Department of Homeland Security alleged had passed through the hands of ISIS.  The Board of Immigration Appeals found these allegations sufficient for a finding that the applicant had not established he poses a threat to national security, and therefore, is a danger to the community, despite the applicant's testimony that he did not know the passport had been stolen by terrorists and the lack of evidence linking him to a terrorist organization.

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

https://www.justice.gov/eoir/file/881776/download

The Ninth Circuit Finds Government Officials did not Act with Deliberate Indifference in Adjudication of Naturalization Applications

Due to a serious of government missteps, the petitioner never became a U.S. citizen.  The former INS lost his mother's original naturalization application, delaying her naturalization until two months after the petitioner's 18th birthday, and thus, preventing him from deriving citizenship.  When the petitioner applied for naturalization shortly thereafter, the examiner incorrectly told him that he did not need to naturalize because he had derived citizenship through his parents.  The Ninth Circuit previously transferred the petitioner's case to determine if the government officials had acted with deliberate indifference to the petitioner's right to apply for citizenship.  The District Court determined that there was no evidence of deliberate indifference.  The Ninth Circuit affirmed, finding no evidence that any government official was aware that their actions were jeopardizing the petitioner's right to apply for citizenship or that any government policymaker formulated policy that was indifferent to the rights of the petitioner and similarly situated individuals.

The full text of Brown v. Holder can be found here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/02/11-71458.pdf

Ninth Circuit Construes Mandatory Detention Provision

The Ninth Circuit has limited the mandatory detention provision for non-citizens convicted of certain criminal offenses.  Specifically, the mandatory detention provision is triggered only if the non-citizen is transferred promptly from criminal to immigration custody.  If there is a significant break between criminal and immigration custody, the non-citizen is entitled to a bond hearing.  The court rejected the Board of Immigration Appeals' decision in Matter of Rojas, finding it contradictory to the plain language of the mandatory detention statute.  The court noted that it was not requiring an immediate transfer from criminal to immigration custody, but declined to specify what qualified as a prompt apprehension, noting that the case did not present the question of how quickly apprehension by immigration authorities must occur to trigger the mandatory detention statute.  Nonetheless, the court did not alter the class certified by the District Court, which includes those not immediately detained by immigration authorities upon release from criminal custody.

The full text of Preap v. Johnson can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/04/14-16326.pdf

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