Third Circuit Finds that Vacated Conviction no Longer Constitutes a Conviction for Immigration Purposes

Raul Rodriguez was convicted of possession of PCP In Pennsylvania.  He filed a motion for post-conviction relief, alleging that his defense attorney did not adequately advise him of the immigration consequences of the conviction or his appellate rights.  The motion was subsequently denied, but the state agreed to a settlement, allowing Rodriguez to withdraw his guilty plea.  The state court did not specify what reason underpinned the withdrawal.  The Third Circuit found that this was sufficient under Matter of Pickering to render the conviction vacated for immigration purposes.

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

http://www2.ca3.uscourts.gov/opinarch/161354p.pdf

Tenth Circuit Determines that an Oklahoma Conviction for Assault and Battery with a Dangerous Weapon is a Crime of Violence

The Tenth Circuit, in a criminal sentencing case, has determined than an Oklahoma conviction for assault and battery with a dangerous weapon qualifies as a crime of violence.  The court recognized that assault and battery in Oklahoma includes only slight touching, not sufficient to constitute violent force as required to be a crime of violence.  However, the court determined that the required use of a dangerous weapon necessarily meant that the defendant was convicted of using violent force, above the slight touching required for assault and battery without a weapon. Given the similarity between a crime of violence in the criminal context and a crime of violence in the immigration context, this case may have persuasive value in the immigration context. 

The full text of US v. Taylor can be found here:

https://www.ca10.uscourts.gov/opinions/16/16-7028.pdf

Board of Immigration Appeals Addresses Defective Service on a Minor

The Board of Immigration Appeals has determined that when the Department of Homeland Security defectively serves a Notice to Appear on a minor, an Immigration Judge should grant a continuance for the Department to properly re-serve the Notice to Appear on a parent and an attorney.

The full text of Matter of W-A-F-C- can be found here: 

https://www.justice.gov/eoir/page/file/918966/download

Board of Immigration Appeals Addresses Untimely Frivolous Asylum Application

The Board of Immigration Appeals has determined that when an applicant for asylum fabricates his entry date, thus making it appear that he has met the requirement for filing asylum within one year of entry, an Immigration Judge can properly find that he filed a frivolous asylum application.  The fabricated entry date is material to the asylum claim, insomuch as the filing deadline is a statutory requirement for eligibility.  It does not matter that, in reality, the asylum application is time barred because no exception to the one-year filing deadline exists.  The application can still be deemed frivolous.

The full text of Matter of M-S-B- can be found here: 

https://www.justice.gov/eoir/page/file/917781/download

Ninth Circuit Finds that Oregon Conviction Qualifies as Sexual Abuse of a Minor

In a federal sentencing case, the Ninth Circuit has determined that an Oregon conviction for attempted sexual abuse in the first degree can qualify as sexual abuse of a minor.  The court determined that the statute is divisible (the provisions regarding crimes of bestiality with a minor under 18 being severable from those involving sex acts with a minor under age 14).  It then conducted a modified categorical analysis, and found that all convictions under the subsection dealing with crimes against minors under age 14 qualify as sexual abuse of a minor under the sentencing guidelines.  The court rejected the defendant's argument that his conviction did not match the definition of sexual abuse of a minor because his plea stipulated that he only made contact with the victim through the outside of her clothing.  Given that sexual abuse of a minor can also qualify as an aggravated felony for immigration purposes, this case may provide persuasive insight into the immigration consequences of a conviction under this statute.

The full text of U.S. v. Rocha-Alvarado can be found here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/12/12/15-10517.pdf

First Circuit Permits Inquiry into the Bona Fides of a Marriage

The First Circuit has determined that an immigration judge may inquire into the bona fides of a marriage that is the basis of an application for adjustment of status, even after U.S. Citizenship and Immigration Services has approved an immediate relative petition based on the marriage.  The court noted that an immigration judge has a duty to determine if an applicant for adjustment of status is admissible, which includes ruling out that the applicant has committed marriage fraud.

The full text of Chan v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/15-2112P-01A.pdf

Fourth Circuit Finds that Maryland Conviction for Third Degree Sex Offense does not Constitute Sexual Abuse of a Minor

The Fourth Circuit has determined that a Maryland conviction for third degree sex offense does not constitute a sexual abuse of a minor aggravated felony because it does not require the defendant to have an intent to gratify his sexual desires.  The court declined to accord deference to the Board of Immigration Appeals' decision in Matter of Esquivel-Quintana, which put forth a framework for evaluating whether a conviction qualifies as sexual abuse of a minor.

The full decision in Larios-Reyes v. Lynch can be found here:

http://www.ca4.uscourts.gov/Opinions/Published/152170.P.pdf

BIA Finds Cuban Parolee Ineligible for Adjustment of Status under Section 209 of the INA

The Board of Immigration Appeals has determined that a Cuban paroled into the United States under section 212(d)(5) of the INA was not admitted to the United States as a refugee, and as such, cannot apply for adjustment of status under section 209 of the INA, which applies only to asylees and refugees.  Moreover, though his parole was for the purpose of applying for asylum, his application for asylum was never granted, and therefore, he cannot take advantage of adjustment of status under section 209 of the INA as an asylee.

The full text of Matter of L-T-P- can be found here:

https://www.justice.gov/eoir/page/file/914421/download

Ninth Circuit Addresses Particular Social Group Framework

The Ninth Circuit has determined that the social distinction and particularity requirements imposed by the Board of Immigration Appeals on the definition of a particular social group are reasonable interpretations of the asylum statute.  The court further determined that the evidentiary record did not compel the conclusion that former gang members qualify as a particular social group.  The court  did, however, grant the petition for review with respect to the applicant's request for protection under the Convention Against Torture, noting evidence that former gang members are killed by gang members, and that such acts would constitute torture.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/11/30/14-70686.pdf

Ninth Circuit Addresses Fraudulent Entry Under Visa Waiver Program

The Ninth Circuit has determined that a person who enters the United States on the visa waiver program on a fraudulent passport is still subject to the waiver of rights associated with a visa waiver entry.  As such, the person is not entitled to have an immigration judge adjudicate an application for adjustment of status.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/11/28/13-73062.pdf

Fifth Circuit Determines that "Persons Believed to be Wealthy" do not Constitute a Particular Social Group

The Fifth Circuit has determined that "persons believed to be wealthy because they are returning to their home country from the United States" do not constitute a cognizable particular social group for asylum or withholding of removal purposes.  The court further noted that it does not recognize economic extortion as a form of persecution under immigration law.

The full text of Gonzalez-Soto v. Lynch can be found here:

http://www.ca5.uscourts.gov/opinions/pub/14/14-60722-CV0.pdf

Eighth Circuit Determines that Minnesota Conviction for Terroristic Threats is not a Violent Felony

In the context of a criminal sentencing case, the Eighth Circuit has determined that a Minnesota conviction for terroristic threats does not qualify as a violent felony under the Armed Career Criminal Act (ACCA).  Given the similarity between the definition of a violent felony under the ACCA and the definition of a crime of violence in the immigration context, this decision could have persuasive value in the immigration context.

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

http://media.ca8.uscourts.gov/opndir/16/11/161304P.pdf

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