BIA Clarifies Definition of Crime of Violence

The Board of Immigration Appeals (BIA) has issued a new decision in Matter of Guzman-Polanco, a decision issued earlier this year on the definition of a crime of violence.  The BIA continued to indicate that a crime of violence requires violent force, not slight force.  With respect to the issue of indirect force (i.e. the use of poison), the BIA indicated that it would defer to the circuit court interpretations on this issue.

The full text of the new decision in Matter of Guzman-Polanco can be found here:

https://www.justice.gov/eoir/file/890751/download

Eighth Circuit Finds that Minnesota Attempted Drive By Shooting Conviction is a Violent Felony

In the context of a criminal sentencing case, the Eighth Circuit has determined that a Minnesota conviction for attempted drive by shooting is a violent felony under the force clause of the Armed Career Criminal Act (ACCA), even though the statute encompasses reckless conduct.  The ACCA's force clause is worded in a similar fashion to the definition of a crime of violence in the immigration context.  Thus, this case may indicate some of the immigration consequences of a conviction under this statute, depending on whether your circuit has defined crimes of violence to exclude reckless conduct.

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

http://media.ca8.uscourts.gov/opndir/16/09/153078P.pdf

Eighth Circuit Finds that a Minnesota Third Degree Burglary is not a Violent Felony

In the context of a federal sentencing case, the Eighth Circuit has determined that Minnesota's third degree burglary statute does not qualify as a violent felony under the Armed Career Criminal Act (ACCA) because it does not require the defendant to form an intent to commit a crime at the time of his unprivileged entrance.  Given that the ACCA includes burglary offenses (defined similarly to a burglary aggravated felony in the immigration context) as subsets of violent felonies, this case could have persuasive value in the immigration context.

You can read the he full text of US v. McArthur here:

http://media.ca8.uscourts.gov/opndir/16/09/143335P.pdf

Attorney General Lifts Stay on "Crimmigration" Cases

The Attorney General (AG) has lifted the stay on Matter of Chairez and Matter of Sama, finding that the Supreme Court's recent decision in Mathis v. United States addresses the definition of a divisible statute.  The AG remanded all of they stayed cases to the Board of Immigration Appeals.

The full text of the AG's order can be found here:

https://www.justice.gov/sites/default/files/pages/attachments/2016/09/07/3869_0.pdf

BIA Finds that IJs do not Have Jurisdiction to Grant Waivers to U Visa Petitioners

The Board of Immigration Appeals (BIA) has determined that an Immigration Judge does not have jurisdiction to grant a waiver of inadmissibility to a U visa petitioner.  In so doing, the BIA breaks with the Seventh Circuit on this issue.

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

https://www.justice.gov/sites/default/files/pages/attachments/2016/09/08/3870_0.pdf

Ninth Circuit Addresses the Need for Corroborating Evidence

The Ninth Circuit has affirmed its prior case law that an applicant for asylum must be given notice of corroborating evidence required by the Immigration Judge and provided the opportunity to provide that evidence or explain its absence.  In the instant case, the Government questioned the applicant why his brother did not testify to corroborate his story.  The court closed the evidentiary record at the end of the hearing, without providing the applicant with the opportunity to present his brother's testimony once he was notified that it was required.  Similarly, the judge determined that the corroborating documents submitted were insufficiently specific, but did not provide the applicant with the opportunity to present letters with more specific details.  The court remanded the case.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/30/12-74062.pdf

Ninth Circuit Addresses Jurisdiction

The Ninth Circuit has reaffirmed that when the Board of Immigration Appeals (BIA) remands a case to an Immigration Judge solely to address voluntary departure, a final order of removal exists for the purposes of federal court review.  As such, if the non-citizen fails to appeal to the circuit court within 30 days of the BIA's decision, the circuit court lacks jurisdiction to consider any errors in its decision denying other relief.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/01/12-74163.pdf

Ninth Circuit Finds that Individuals in Reinstatement Proceedings are Barred from Seeking Asylum

The Ninth Circuit has determined that a person subject to a reinstated order of removal is not eligible to apply for asylum.  The court acknowledged that the asylum statute allows any non-citizen to apply for asylum, while the reinstatement provision prohibits any person subject to a reinstated order of removal from applying for any immigration relief (including asylum).  The court then acknowledged that despite the absolute language, there are exceptions as to who can apply for asylum, and case law has established that those subject to reinstatement can still apply for withholding of removal and protection under the Convention Against Torture.  Thus, the language of the statutes could not settle the dispute as to which statute trumps.  The court found no information in the legislative history that would settle the question either.  With this ambiguity in mind, the court found that the agency's regulation barring a person subject to reinstatement from applying for asylum was a reasonable interpretation of the statute.

On a brighter note, the court acknowledged that individuals subject to a reinstated order of removal can apply for a U visa.  The court also reminded the Government of its authority to forego reinstating an order of removal, particularly when strong humanitarian concerns arise, thus allowing a person to pursue an asylum claim despite a prior order of removal.  

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/31/13-70579.pdf

Eighth Circuit Addresses the Reliability of Government-Created Documents

Francisco Rodriguez-Quiroz applied for adjustment of status.  He asserted that he had entered the United States using a border crossing card in 2004 and had never left.  A government-produced document, called a TECS-II printout, confirmed this entry, but showed a subsequent departure in 2005, with no admission thereafter.  Another government-document, a Form I-213, alleged that Rodriguez-Quiroz had admitted to an immigration official that he entered the United States in 2005 without inspection.  Rodriguez-Quiroz disputed the accuracy of both of these documents, asking that the Government provide information on how the TECS-II database compiled information on departures, and that the Government produce the officers who created the Form I-213 for cross-examination.  He also presented copious documentary evidence placing him in the United States on the days just before and just after the alleged date of departure in 2005.  The Government did not present the requested evidence on the TECS-II database or the officers who drafted the Form I-213, and the Immigration Judge determined that Rodriguez-Quiroz had not met his burden to prove the time and manner of his last entry into the United States.  The Board of Immigration Appeals affirmed.

The Eighth Circuit reversed.  "While the record supports the assertion that a public official printed the TECSII document from a government computer system,5 it does not necessarily support an assertion that the departure information derived from a public official or from government records. As set forth above, DHS provided no foundation for the TECSII document, despite the IJ’s request for an explanation of how the departure information came to be recorded in the TECS system and the IJ’s comment that she would not be able to assess the reliability of the departure information without such an explanation. Moreover, Rodriguez had asserted that the information may have originated from the air carrier and not from any public official. Rodriguez’s concern seems to be well founded in light of entries in the Federal Register indicating that air carriers report itinerary information of certain passengers to Customs and Border Protection (CBP), which then maintains that information in the TECS system."  "Because the departure information set forth in the TECS-II document may not have been “produced by public officials during the ordinary course of their duties,” and because DHS refused to explain how that information came to be recorded in the TECS system, we question whether the January 21, 2005, departure information set forth in the TECS-II document is entitled to a presumption of reliability. "  The court then noted that even if the document was presumptively reliable, it could not imagine, in light of the documentary and testimonial evidence submitted by Rodriguez-Quiroz, what else he could have done to rebut that presumption.  The court remanded to allow Rodriguez-Quiroz to present evidence challenging the reliability of the Form I-213.

The full text of Rodriguez-Quiroz v. Lynch can be found here:

http://media.ca8.uscourts.gov/opndir/16/08/152621P.pdf

Sixth Circuit Remands Family-Based Particular Social Group Asylum

In an unpublished decision, the Sixth Circuit reversed the denial of a motion to remand filed by an applicant whose younger brother was killed after his asylum application was denied.  The applicant asserted that the murder supported his assertion that he has a well-founded fear of persecution on account of his membership in the particular social group comprised of his family.

The full text of Pagaoda-Galeas v. Lynch can be found here:

http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0514n-06.pdf

Fifth Circuit Determines that a Person Subject to the "Permanent Bar" is not Eligible for a Nunc Pro Tunc Permission to Reapply for Admission after Removal

The Fifth Circuit has deferred to the Board of Immigration Appeals determination in Matter of Torres-Garcia and held that an applicant for adjustment of status who is subject to the so-called "permanent bar" in section 212(a)(9)(C) of the INA may not seek adjustment of status in conjunction with a nunc pro tunc Form I-212, Application to Reapply for Admission after Removal.  The court agreed that a person subject to the permanent bar must remain outside the United States for at least 10 years before filing an I-212.

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

http://www.ca5.uscourts.gov/opinions/pub/15/15-60206-CV0.pdf

Ninth Circuit Opines on the Definition of a Conviction

The Ninth Circuit has held that an expunged California conviction remains a conviction for immigration purposes.  It further held that a grant of probation is a sufficient restraint on liberty to qualify as a conviction as defined in the Immigration and Nationality Act.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/25/14-73510.pdf

Eighth Circuit Addresses Fraud-Related Aggravated Felonies

The Eighth Circuit has determined that it is proper to consider the loss to the victim in the aggregate when determining if a petitioner who has been convicted of multiple counts related to the same fraudulent scheme has been convicted of an aggravated felony.  The court distinguished the case from those involving dismissed counts (the loss tied to these counts cannot be considered when determining if the loss to the victim was in excess of $10,000 for aggravated felony purposes).  It also left open the question as to whether the agency could aggregate the loss to the victim stemming from multiple counts that were not related to the same fraudulent scheme.

The full text of Sokpa-Anku v. Lynch can be found here:

http://media.ca8.uscourts.gov/opndir/16/08/153230P.pdf

Seventh Circuit Addresses Violent or Dangerous Determination

The Seventh Circuit has upheld the regulation applying a heightened discretionary standard to waivers under section 212(h) of the INA for applicants who have been convicted of a dangerous or violent crime.  The court also noted that the agency may employ a categorical approach or a fact-based approach to determining whether a particular crime is violent or dangerous.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D08-25/C:15-3238:J:Wood:aut:T:fnOp:N:1816819:S:0

Sixth Circuit Finds that Soliciting Prostitution is a Crime Involving Moral Turpitude

Agreeing with decisions by the Ninth, Tenth, and Eighth Circuits, the Sixth Circuit has determined that an Ohio conviction for soliciting prostitution is a crime involving moral turpitude.

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

http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0210p-06.pdf

Fifth Circuit Construes Jurisdiction

The Fifth Circuit has determined that when the Board of Immigration Appeals remands a case solely for consideration of voluntary departure, there is a final order of removal for the purpose of judicial review.  Thus, the court had jurisdiction to review the Board of Immigration Appeals decision.

The full text of Holguin-Mendoza v. Lynch can be found here:

http://www.ca5.uscourts.gov/opinions/pub/16/16-60294-CV0.pdf

Tenth Circuit Again Addresses the Interaction of INA 212(a)(9)(C) and INA 245(i)

In 2005, the Tenth Circuit issued its decision in Padilla-Caldera v. Gonzales, finding that an applicant was eligible for adjustment of status under section 245(i) of the Immigration and Nationality Act (INA) even if he was inadmissible under section 212(a)(9)(C) of the INA.  In 2007, the Board of Immigration Appeals (BIA) disagreed in Matter of Briones, finding such an applicant ineligible for adjustment of status.  In 2011, the Tenth Circuit again considered the Padilla-Caldera matter, and in its second decision, it deferred to the BIA's determination in Briones.  In 2015, the Tenth Circuit limited its deference in De Niz Robles v. Lynch, finding that applications who applied after the first decision in Padilla-Caldera, but before Briones, could still seek adjustment of status under section 245(i), even if they were inadmissible under section 212(a)(9)(C), because they had a good faith reliance on the first decision in Padilla-Caldera.

Gutierrez-Brizuela, who was inadmissible under section 212(a)(9)(C) of the INA, applied for adjustment of status under section 245(i) of the INA after the decision in Briones, but before the second decision in Padilla-Caldera.  The Tenth Circuit found him to be similarly situated to De Niz Robles, indicating that applicants for adjustment of status had a good faith reliance on the first decision in Padilla-Caldera until it issued the second Padilla-Caldera decision in 2011.

The full text of Gutierrez-Brizuela v. Lynch can be found here:

https://www.ca10.uscourts.gov/opinions/14/14-9585.pdf

Ninth Circuit Addresses Conviction for Cockfighting

The Ninth Circuit has determined that a federal conviction for cockfighting is not necessarily a crime involving moral turpitude.  In light of its case law indicating that a non-fraud conviction should only qualify as a crime involving moral turpitude if the statute requires an intent to injure another person, actual infliction of injury on another person, or a protected class of victims, the court remanded to the Board of Immigration Appeals to further explain its finding that this conviction qualifies as a crime involving moral turpitude.

The full text of Ortega-Lopez v. Lynch can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/23/13-71127.pdf

In an Unpublished Decision, the Third Circuit Addresses Burdens of Proof and Scolds the Government for Wasting the Court's Time

Cruz-Chang was convicted of a drug offense.  The government argued that the conviction was an aggravated felony, but the Immigration Judge disagreed, and granted Cruz-Chang cancellation of removal.  The government appealed, and while on appeal. requested remand based on a transcript from the criminal proceedings that it alleged showed Cruz-Chang was convicted of an aggravated felony.  The Board of Immigration Appeals (BIA) granted remand, and on remand, the court reversed, and denied cancellation on the basis of an aggravated felony conviction.  Cruz-Chang appealed, and the BIA affirmed.  Cruz-Chang appealed to the Third Circuit, who remanded at the Government's request, to determine what impact that the Supreme Court's decision in Descamps. On remand, the Government argued that Descamps had no impact on the case, and the BIA affirmed.  Cruz-Chang again appealed to the Third Circuit.

The court first determined that the statute of conviction - which criminalized distribution and dispensing a controlled substance - necessarily involved a trafficking element, because it was not clear if distribution and dispensing were alternative means or alternative elements of the offense.  Given this ambiguity, the Court concluded that the certainty required by the Supreme Court's recent conviction in Mathis was not present with respect to the issue of the aggravated felony.  As such, Cruz-Chang is eligible for cancellation of removal.  

The court also scolded the Government for what it perceived as its waste of judicial resources.  "In closing, we note our expectation that on remand and in future cases the Government will refrain from engaging in the problematic conduct that has marked its performance here. The last time this case was before us, the Justice Department requested and we granted a remand to the BIA for the limited purpose of the BIA considering what effect, if any, Descamps has on this immigration case.  Once back before the BIA, however, the Government asserted that Descamps was inapplicable and instead proceeded to argue that the plea transcript was relevant to whether Chang-Cruz should receive discretionary relief, along with an inadequate explanation for why it failed to obtain that plea transcript before the IJ rendered her initial decision cancelling Chang-Cruz’s removal.  These were issues well outside the scope of our remand.  Most troubling, however, is the Government’s resort before the BIA to a frivolous argument that Chang-Cruz engaged in 'obstructionism' by opposing the Government’s remand to the IJ to consider the plea transcript.  It comports with neither the professionalism nor the ethical mandates of Government counsel to chill vigorous advocacy by asserting that an alien who avails himself of the congressionally prescribed opportunity to seek cancellation of removal thereby loses the privilege of cancellation.  We trust that this was an unfortunate mistake that will not be repeated."

The full text of Cruz-Chang v. Attorney General can be found here: 

http://www2.ca3.uscourts.gov/opinarch/144570np.pdf

First Circuit Misconstrues Family-Based Particular Social Group

The First Circuit affirmed the agency's decision.  "[T]he record adequately supports the IJ's finding –– which the BIA accepted –– that the threats against Marín stemmed not from Marín's kinship ties per se, but rather from what Marín did and Cuellar's desire in response either to seek retaliation against Marín or to seek to stop Marín because Cuellar believes that Marín's family may come after him.  The mere fact that Cuellar exclusively targeted members of Marín's family does not, as Marín argues, mean that the only logical inference is that kinship ties, rather than the desire for retaliation or deterrence, prompted Cuellar's threats."

The decision betrays a fundamental misunderstanding of family-based particular social groups.  Cuellar's anger against Marin and his family was directly tied into their kinship ties to Marin's father, who Cuellar murdered.  Thus, but-for Marin's kinship ties to his father, he would not have been targeted.  It's important to remember that Marin was not required to show that his kinship ties were the sole motivation for Cuellar's persecution, only that it was one central reason for the persecution.

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

http://media.ca1.uscourts.gov/pdf.opinions/14-2138P-01A.pdf