Ninth Circuit Retroactively Applies Supreme Court's Decision in Holder v. Martinez-Gutierrez

The Ninth Circuit has retroactively applied the Supreme Court's decision in Holder v. Martinez-Gutierrez, where the Court held that an applicant for cancellation of removal for lawful permanent residents cannot use a parent's years of residency in the United States to fulfill the 7-year residency requirement in the cancellation statute.  The Ninth Circuit applied the Montgomery Ward retroactivity analysis, and concluded that the petitioner did not reasonably rely on its contrary decision in Cuevas-Gaspar v. Holder because multiple courts disagreed with that decision, thus putting the petitioner on notice that the decision was vulnerable.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/11/16/12-73654.pdf

BIA Issues Two Precedential Decisions Addressing Theft Crimes as CIMTS

The Board of Immigration Appeals (Board) has issued a pair of companion cases addressing when theft crimes are properly considered to be crimes involving moral turpitude (CIMT).  In Matter of Diaz-Lizarraga, the Board determined that a conviction for theft would qualify as a CIMT if it required an intent to permanently deprive the owner of the property or circumstances where the owner's property rights are substantially eroded.  The Board then determined that a conviction for shoplifting in Arizona categorically qualified as a CIMT.  In Matter of Obeya, the Board applied this new definition to determine that conviction for petit larceny in New York is also a CIMT.

The full text of Matter of Diaz-Lizarraga can be found here:

https://www.justice.gov/eoir/page/file/910821/download

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

https://www.justice.gov/eoir/page/file/910826/download

Third Circuit Invalidates 18 USC 16(b)

The Third Circuit has joined the Ninth Circuit, Sixth Circuit, Tenth, and Seventh Circuits and found that 18 U.S.C. 16(b) is unconstitutionally vague.  The decision is based on the rationale in Johnson v. United States.  Notably, the Supreme Court will address this issue in Lynch v. Dimaya in the upcoming term.

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

http://www2.ca3.uscourts.gov/opinarch/144476p.pdf

BIA Finds that 237(a)(1)(H) Waiver does not Waive a Crime Involving Moral Turpitude

The Board of Immigration Appeals has determined that a 237(a)(1)(H) waiver cannot waive a conviction for marriage fraud, when such conviction qualifies as a crime involving moral turpitude.  Although the waiver can waive the inadmissibility related to fraud, the conviction qualifies as a separate ground of inadmissibility, not covered by the waiver.

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

https://www.justice.gov/eoir/page/file/907141/download

Second Circuit Upholds Waiver of Removal Proceedings for ESTA Entrant

The Second Circuit has held that an individual who submits an ESTA form to enter the United States on the visa waiver program electronically certifies that he is waiving his right to apply for any relief from removal other than asylum if he overstays his authorized stay.  The court refused to require the Department of Homeland Security to present a physically signed I-94W, noting that the ESTA program is now completed electronically.

The full text of Enes de Vasconcelos v. Lynch can be found here:

http://www.ca2.uscourts.gov/decisions/isysquery/f1438584-6837-45b7-8a88-c47905e04809/1/doc/15-1308_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/f1438584-6837-45b7-8a88-c47905e04809/1/hilite/

Seventh Circuit Affirms Marriage Fraud Finding

The Seventh Circuit has affirmed a finding of marriage fraud by an Immigration Judge in which the Department of Homeland Security presented hearsay evidence that the petitioner's ex-spouses confessed to the fraudulent nature of their marriage.  Although the ex-spouse did not testify in court, the Immigration Judge did issue a subpoena to compel her testimony.  The Seventh Circuit faulted the petitioner for not requesting that the Immigration Judge request enforcement of the subpoena through the local AUSA's office.  Thus, the hearsay evidence was fair and probative.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D11-01/C:13-2478:J:Hamilton:aut:T:fnOp:N:1855990:S:0

Eighth Circuit Finds that Missouri Second-Degree Robbery Conviction is not a Crime of Violence

In a criminal sentencing case, the Eighth Circuit has determined that a conviction for second-degree robbery in Missouri is not a crime of violence because it does not require violent touching.  Given the similarity between the definition of a crime of violence in the sentencing context and a crime of violent in the immigration context, this decision provides excellent arguments for practitioners to use in support of the contention that a conviction under this statute is not a crime of violence aggravated felony.

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

http://media.ca8.uscourts.gov/opndir/16/10/153506P.pdf

Tenth Circuit Finds that New Mexico Conviction for Aggravated Assault with a Deadly Weapon is a Crime of Violence

In a federal sentencing case, the Tenth Circuit has determined that a New Mexico conviction for aggravated assault with a deadly weapon is categorically a crime of violence because it requires the use of a deadly weapon during the assault.  Given the similarities between the definition of a crime of violence in the criminal sentencing context and the immigration context, this decision will likely have persuasive value when evaluating whether this conviction qualifies as a crime of violence aggravated felony.

The full text of United States v. Maldanado-Palma can be found here:

https://www.ca10.uscourts.gov/opinions/15/15-2146.pdf

Ninth Circuit Rejects Due Process Claim from Cancellation Applicants

The Ninth Circuit has rejected a claim from two applicants for cancellation of removal for non-lawful permanent residents because the agency failed to adjudicate their applications before their qualifying relatives (their children) reached the age of 21 (and thus, no longer qualified as children).  First, the Ninth Circuit deferred to the Board of Immigration Appeals' decision in Matter of Isidro-Zamorano, which held that the qualifying relative must remain a child (i.e. unmarried and under age 21) at the time the application for cancellation is adjudicated (as opposed to when the application is filed).  Second, the Ninth Circuit held that the applicants lacked any legitimate claim of entitlement to having their applications adjudicated before their sons turned 21 because no statute or regulation requires the government to take action on their applications within a set period, nor does cancellation of removal give rise to a "substantive interest protected by the Due Process Clause.”  Moreover, the processing delays in the cases were routine, and neither applicant made any attempt to expedite their cases to ensure adjudication before their children turned 21.  Thus, the delay in processing did not violate the applicants' due process rights.  Finally, the Court deemed the statutory cap on cancellation cases to be well within the discretion of Congress to create though duly enacted legislation, and as such, the cap did not violate anyone's due process rights.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/10/20/15-71931.pdf

Ninth Circuit Construes Reinstatement Provision

The Ninth Circuit has determined that a person who is issued an expedited order of removal at the border has entered the United States for the purpose of the reinstatement provision.  Thus, any subsequent re-entry without valid documentation would qualify as an illegal reentry, triggering the reinstatement provision.  In this case, the petitioner re-entered the United States as a passenger in a car, but did not have any valid entry documents.  Thus, the Department of Homeland Security was permitted to reinstate the previously issued expedited order of removal.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/10/24/12-73424.pdf

Sixth Circuit Distinguishes Matter of A-R-C-G-

In a disappointing opinion, the Sixth Circuit affirmed the denial of a domestic violence based asylum claim.  The  IJ found that Roselyne Marikasi was unable to demonstrate that her status in the domestic relationship with her husband was  immutable because she could not show that she was unable to leave the abusive relationship.

The BIA distinguished Marikasi’s case in the following important respects from its seminal case on domestic violence asylum claims: Matter of A-R-C-G-: (1) when Marikasi went into hiding with the Musasa Project, she did not have any contact with her husband; (2) after she left the Musasa Project, she stayed with friends and never returned to her husband; (3) a substantial period of time had passed since Marikasi went into hiding and she remained out of contact with her husband; and (4) she remained out of contact with her husband after leaving Zimbabwe. The Sixth Circuit further noted that she was able to freely move through the country and avoid her husband.  Thus, Marikasi failed to substantiate any religious, cultural, or legal constraints that prevented her from separating from the relationship in Zimbabwe or moving to a different part of that country.  

This case is troubling - it assumes that the impact of domestic violence somehow ceases once the victim physically removes herself from the batterer's physical presence.  It overlooks the long-lasting psychological trauma suffered by a victim, even once she seemingly breaks free of her abuser's control.

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

http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0260p-06.pdf

Fifth Circuit Find Arkansas Drug Conviction to be an Aggravated Felony

The Fifth Circuit addressed the question of whether a conviction for reckless possession with intent to deliver marijuana qualified as an illicit trafficking in a controlled substance aggravated felony.  Noting that delivery in Arkansas requires remuneration, the Court deemed the conviction to be an aggravated felony, distinguishable from the Georgia statute at issue in Moncrieffe v. Holder.

The full text of Flores-Larrazola v. Lynch can be found here:

http://www.ca5.uscourts.gov/opinions/pub/14/14-60888-CV0.pdf

BIA Issues New CIMT Framework and Declines to Extend Heightened Discretionary Standard

The Board of Immigration Appeals (Board) has issued a new decision in Matter of Silva Trevino, dictating how Immigration Judges should analyze whether convictions qualify as crimes involving moral turpitude.  The Board acknowledged that this analysis is governed by the categorical and modified categorical approaches, including the Supreme Court's decisions in Descamps v. US and Mathis v. US for determining what constitutes a divisible statute.  The Board also noted that a crime involving moral turpitude is generally conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.

With this framework in mind, the Board determined that Texas Penal Code section 21.11(a)(1) (indecency with a child) is not a crime involving moral turpitude because it does not require a defendant to know that the victim is under age 17.  Moreover, the parties agreed that the statute is not divisible, and therefore, no modified categorical analysis was necessary.

Finally, the Board declined to extend the heightened discretionary standard for individuals convicted of violent or dangerous crimes - currently applied via regulation to waivers of inadmissibility under section 212(h) of the INA - to other forms of discretionary relief.  The Board noted that its current case law already allows a judge to balance the severity of a crime against equities when determining whether to grant discretionary relief (i.e. adjustment of status) to an applicant.  Ninth Circuit practitioners can use this decision to roll back the decision in Torres-Valdivias v. Lynch (9th Cir. 2015), which applied the heightened discretionary standard to all forms of discretionary relief (including adjustment of status without a waiver).

The full text of Matter of Silva Trevino can be found here:

https://www.justice.gov/eoir/file/902461/download

Ninth Circuit Grants Petition for Rehearing En Banc in Case Involving Habitual Drunkard Bar to Good Moral Character

The Ninth Circuit has voted to rehear en banc the decision in Ledezma-Cosino v. Lynch, in which the three judge panel determined that the habitual drunkard bar to good moral character violated equal protection.

The decision announcing the en banc can be found here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/10/12/12-73289.pdf

The original three judge decision can be found here: 

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/24/12-73289.pdf

First Circuit Finds that BIA Abused its Discretion by Refusing to Reopen

The First Circuit admonished the Board of Immigration Appeals (Board) for failing to exercise its discretion.  The petitioner sought reopening after two attorneys (both later disciplined for their unethical representation of clients) provided him ineffective assistance of counsel, resulting in the entry of an in absentia order of removal when he was approximately 30 minutes late to a hearing.  Though the Immigration Judge and the Board both agreed that the petitioner had received in effective assistance of counsel sufficient to toll the filing deadline for the motion to reopen, they declined to reopen because the petitioner had received notice of the proper time of his hearing.  The court doubted whether being 30 minutes late was really grounds for an in absentia, but noted that attorney's failure to inform the judge of the client's appearance (after the judge indicated a willingness to reopen the case if the petitioner appeared later that morning) was an exceptional circumstance.

The full text of Murillo-Robles v. Lynch can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/15-2568P-01A.pdf

BIA Issues Precedential Decision Applying Supreme Court's Definition of Divisibility

The Board of Immigration Appeals (BIA) has set forth its third decision in Matter of Chairez, confirming that the definition of a divisible statute, as set forth in the Supreme Court's decision in Mathis v. United States, applies to immigration proceedings.  Accordingly, the BIA determined that section 76-10-508.1 of the Utah Code is overbroad with respect to the definition of a crime of violence because it criminalizes reckless conduct under subsection (1)(a).  Moreover, the statute is not divisible because Utah state case law suggests that the mental state is not something upon which a jury must unanimously agree to convict.  

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

https://www.justice.gov/eoir/file/898626/download

Tenth Circuit Re-examines the Immigration Consequences of a Utah Drug Conviction

The Tenth Circuit has remanded an immigration case in light of the Supreme Court's decision in Mathis v. United States to re-examine whether Utah's drug statutes are divisible, and accordingly, whether a conviction for possession of a controlled substance in Utah qualifies as a controlled substance violation.

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

https://www.ca10.uscourts.gov/opinions/15/15-9579.pdf

Eighth Circuit Finds Arkansas First Degree Battery Conviction to be a Crime of Violence

In the context of a criminal sentencing case, the Eighth Circuit has determined that a conviction for first-degree batter in Arkansas (Ark. Code. Ann. section 5-13-201) is a crime of violence.  The court noted that the statute is divisible, but that subsection (a)(1), which requires the infliction of serious physical injury through the use of a deadly weapon, requires the requisite violent force to be a crime of violence.

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

http://media.ca8.uscourts.gov/opndir/16/09/161283P.pdf

BIA Finds that Federal Conviction for Copyright Infringement is a Crime Involving Moral Turpitude

The Board of Immigration Appeals (BIA) has determined that a federal conviction for criminal copyright infringement is a crime involving moral turpitude.  The BIA found the conviction - which requires that the infringement be committed for commercial advantage or private financial gain - is akin to theft or fraud offenses.

The full text of Matter of Zaragoza-Vaquero can be found here:

https://www.justice.gov/eoir/file/896301/download

Eleventh Circuit Addresses Florida Conviction for Abuse of an Elderly or Disabled Person

The Eleventh Circuit has determined that a Florida conviction for abuse of an elderly or disabled person is categorically a crime involving moral turpitude.  The court acknowledged that no actual injury need be inflicted on the victim, and that the statute can be violated by encouraging another person to abuse the victim.  Nonetheless, the court focused on the vulnerable population protected by the statute to find that all conduct criminalized under the statute involves moral turpitude.

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

http://media.ca11.uscourts.gov/opinions/pub/files/201512497.pdf