Third Circuit Discusses "Settled Course" Exception to Jurisdiction over Sua Sponte Motions to Reopen

Typically, a circuit court of appeals does not have jurisdiction to review the Board of Immigration Appeals' (BIA) refusal to exercise its sua sponte authority to reopen a case.  However, the Third Circuit has now recognized that at times "the BIA has limited its discretion via a policy, rule, settled course of adjudication, or by some other method, such that the BIA’s discretion can be meaningfully reviewed for abuse.  The petitioner’s showing must be persuasive enough to allow the reasonable inference that the BIA’s discretion has in fact been limited."  "The key words in the above formulation are 'meaningfully' and 'reasonable.'  A policy so broad as to merely redirect the BIA’s discretion, rather than limit it, will probably be insufficient. The same goes for a 'pattern' of dispositions whose contours are not clearly defined or which is not tailored to the petitioner’s circumstances."   Published and unpublished BIA decisions can be reviewed when evaluating whether the BIA has created a policy, rule, or settled course of adjudication that limits its discretion.  The court, however, disagreed with the petitioner's contention that the BIA has a practice or pattern of reopening cases sua sponte where the petitioner becomes eligible for relief from removal for which he was not eligible in the original removal proceedings.

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

http://www2.ca3.uscourts.gov/opinarch/161795p.pdf

BIA Defines Conviction Adam Walsh Act Purposes

The Board of Immigration Appeals has adopted the definition of a conviction contained in section 101(a)(48)(A) of the Immigration and Nationality for determining whether a petitioner has been convicted of an offense against a minor for the purposes of the Adam Walsh Act.  Thus, a conviction that was expunged under section 1203.4 of the California Penal Code remains a conviction for the purposes of the Adam Walsh Act.

The full text of Matter of Calcano de Millan can be found here:

https://www.justice.gov/eoir/page/file/925381/download

Ninth Circuit Clarifies Standards for Withholding of Removal and Protection under the Convention Against Torture

The Ninth Circuit has held that an applicant for withholding of removal need not prove that a protected ground (i.e. his political opinion, religion, membership in a particular social group, etc.) is one central reason for the persecution inflicted on him.  The court noted that when Congress amended the asylum statute to include the "one central reason" requirement, it did not similarly amend the withholding of removal statute.  Thus, an applicant for withholding of removal need only show that a protected ground is "a reason" for the harm inflicted on him, and not "one central reason."  In so holding, the Ninth Circuit rejected the Board of Immigration Appeals' decision in Matter of C-T-L-, which extended the one central reason standard to withholding of removal.

With respect to the petitioner's application for protection under the Convention Against Torture, the Court noted that there is no "rogue official" exception to this protection.  "Since the officers were apparently off duty when they tortured Barajas-Romero, they were evidently not acting 'in an official capacity,' but the regulation does not require that the public official be carrying out his official duties, so long as he is the actor or knowingly acquiesces in the acts."

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/01/18/13-70520.pdf

Fifth Circuit Finds that an Arizona Conviction for Attempted Transportation for Sale of Marijuana is an Aggravated Felony

In an unpublished decision, the Fifth Circuit determined that Arizona Revised Statute Section 13-3405(A)(4) (attempted transportation for sale of marijuana) is a divisible statute, laying out separate offenses for solicitation to transport for sale and transport for sale of marijuana.  The court recognized that Arizona state case law on this issue was conflicting, but determined that because the charging document listed only transportation for sale, this narrowing language indicated that transportation for sale is a distinct offense from offer to transport for sale.  The court also looked at the pattern jury instructions, which contained different instructions for transportation for sale and offering for sale.  Thus, the court concluded the statute was divisible.

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

http://www.ca5.uscourts.gov/opinions/unpub/15/15-60183.0.pdf

Seventh Circuit Addresses Persecution of Deportees Perceived as Wealthy

Jose Rivera sought protection from removal based on his fear that gangs in El Salvador would seek to kidnap or extort him because they would perceive him as wealthy, owing to his long residence in the United States.  Though the Seventh Circuit ultimately determined that Rivera had not proven he would be targeted by gang members because of the perception that he is wealthy, the Court made the following observations that should give home for future applicants.  "We are dubious . . . of the proposition announced in some cases that the status of being a member of a group made up of individuals deported from the United States who, having lived in this country for many years, either have money or are believed to have money and have long‐established ties to this country, and who for any of these reasons might be able to pay ransom, nevertheless can’t be deemed members of a 'social group' authorized to obtain relief from deportation because of threats to the life or safety of the group’s members."  "We note finally, for its possible relevance in future cases, that what doesn’t matter in the case of an illegal immigrant resisting removal because of fear of persecution is whether gangs in El Salvador, or whatever the immigrant’s country of origin is, are wrong in thinking that anybody who’s lived in the United States is likely to be wealthy or have wealthy American connections. If thatʹs what the gangs think, and if (a big if, which requires evidence) as a result they hold deportees from the U.S. for ransom and kill them if it isnʹt paid, those deportees are being subjected to persecution. We don’t think either a court or the immigration agencies could rationally deny that. But it isn’t this case."

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D01-12/C:16-3225:J:Posner:aut:T:fnOp:N:1894216:S:0

Eleventh Circuit Deems Florida Armed Robbery Conviction to be a CIMT

The Eleventh Circuit, in an unpublished decision, has deemed a Florida conviction for armed robbery to be a categorical match to the definition of a crime involving moral turpitude.  The court rejected the petitioner's argument that the state crime must match the elements of the federal robbery statute in order to qualify as a crime involving moral turpitude.

The full text of Jaimes-Lopez v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/unpub/files/201515532.pdf

Ninth Circuit Determines that an Applicant Cannot Combine a 212(h) Waiver with Cancellation of Removal for Non-Lawful Permanent Residents

The petitioner had been convicted of several crimes involving moral turpitude and one controlled substance violation involving marijuana.  He sought cancellation of removal for non-lawful permanent residents, arguing that he could waive the disqualifying effects of the convictions with a 212(h) waiver.  The agency disagreed, and the Ninth Circuit affirmed, finding that the statute provided no basis for combining these two forms of relief.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/01/09/14-72082.pdf

Eighth Circuit Finds that Arkansas Conviction for Second Degree Battery with a Deadly Weapon is a Violent Felony

The Eighth Circuit has determined that a conviction for second-degree battery with a deadly weapon other than a firearm in Arkansas qualifies as a violent felony.  The court rejected the petitioner's argument that the infliction of injury does necessarily require the use of violent force.  Given the similarity between the definition of a violent felony and a crime of violence aggravated felony in the immigration context, this decision could have persuasive value in the immigration context.

The full text of U.S. v. Winston can be found here:

http://media.ca8.uscourts.gov/opndir/17/01/153739P.pdf

Seventh Circuit Scolds ICE for Refusal to Exercise Prosecutorial Discretion

Antonio Robledo-Soto is the parent of 3 U.S-citizen children.  He has one conviction for driving under the influence, which has been expunged by the criminal court.  He requested that ICE exercise its prosecutorial discretion to administratively close his removal proceedings, in light of his eligibility for benefits under the Deferred Action for Parental Accountability program put forward by President Obama.  Unfortunately, that program was never implemented because it has been enjoined by a federal court.  ICE has refused to administratively close his proceedings.  The Seventh Circuit acknowledged that it had no choice but to dismiss his petition for review, but not before analyzing the tragedy of circumstances that had befallen Robledo-Soto, and that could have been halted by ICE's exercise of discretion.  

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D01-10/C:16-2954:J:Kanne:con:T:fnOp:N:1893000:S:0

Sixth Circuit Rules on the Meaning of "Lawfully Admitted to Permanent Residence"

In the context of a naturalization case, the Sixth Circuit has determined that a non-citizen is not lawfully admitted to permanent residence if the the admission was not substantively valid.  In the instant case, the petitioner was approved for an immigrant visa as a child accompanying or following to join a principal application parent.  However, he entered the United States 24 days before his father (the principal applicant).  Thus, his lawful permanent residence was accorded in error and he is not eligible for naturalization.

The full text of Turjah v. U.S. Citizenship and Immigration Services can be found here:

http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0001p-06.pdf

Seventh Circuit Addresses Section 13 Adjustment of Status and Material Support to a Terrorist Group

The Seventh Circuit has determined that review of a section 13 adjustment of status application - available to certain foreign officials performing diplomatic and semi-diplomatic duties - is exclusively with U.S. Citizenship and Immigration Services.  As such, the denial of such an application is reviewable only by the Administrative Appeals Office, and not the Board of Immigration Appeals.  The court also determined that providing interpretation services to the leader of a terrorist organization constitutes the provision of material support to that organization.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D01-05/C:16-1112:J:Bauer:aut:T:fnOp:N:1890317:S:0

First Circuit Permits Use of Record of Sworn Statement to Impeach Asylum Applicant's Credibility

The First Circuit has permitted the use of a Record of Sworn Statement, taken by a Customs & Border Protection (CBP) agent when he first encountered an undocumented immigration, to impeach an asylum applicant's credibility.  The court noted that the applicant testified that he understood the questions asked to him in the Record of Sworn Statement, that the interpreter read the answers back to him to verify their accuracy, and that he signed the interview attesting to its accuracy and truthfulness.  Thus, the fact that he stated to the CBP agent that he did not have a fear of returning to his country could be used to find his asylum-related testimony in court not credible.

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

http://media.ca1.uscourts.gov/pdf.opinions/16-1290P-01A.pdf

Ninth Circuit Amends its Whistleblowing Decision

The Ninth Circuit has amended its decision in Lkhasgvasuren v. Lynch.  Initially, the Court deferred to the Board of Immigration Appeals framework for whistleblower asylum cases, as articulated in Matter of N-M-.  In the amended decision, the Court assumed, without deciding, that the N-M- framework would apply to whistleblowing claims.

The amended decision in Lkhasgvasuren v. Lynch can be found here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/12/30/13-71778.pdf

Eighth Circuit Finds that Iowa Conviction for Domestic Abuse Strangulation is a Crime of Violence

In a criminal sentencing case, the Eighth Circuit determined that an Iowa conviction for domestic abuse - strangulation is a crime of violence.  "The elements of Domestic Abuse–Strangulation are:(1) committing a domestic assault in violation of Iowa Code § 708.1, and (2) knowingly causing impaired breathing or blood circulation by either means in the statute. Knowingly strangulating another is categorically capable of causing physical pain or injury to  another person because it requires proof that the victim’s breathing or blood circulation was impaired by the defendant. The offense here includes the use of violent force as an element ‘since its impossible to cause bodily injury without using force capable of producing that result."  Given the similarity between the definition of a crime of violence in the sentencing context and in the immigration context, this decision may have persuasive value in immigration cases.

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

http://media.ca8.uscourts.gov/opndir/16/12/153829P.pdf

Seventh Circuit Applies Mailbox Rule to Detainee

The Seventh Circuit has determined that the "mailbox rule" should apply to a detained immigrant who handed his petition for review to an official at the detention facility before the 30 day appeal deadline had lapsed, even if the petition was not received in the clerk's office until after the 30 day deadline.  The panel also determined that the Immigration Judge had erred by failing to advise the petitioner of the availability of pre-conclusion voluntary departure, but denied his petition for review because he had failed to raise this argument before the Board of Immigration Appeals.  Judge Posner wrote a scathing dissent, deeming the Immigration Court system to be the most incompetent federal agency.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D12-30/C:15-3730:J:Easterbrook:aut:T:fnOp:N:1887878:S:0

BIA Adopts Definition of Perjury Aggravated Felony

The Board of Immigration Appeals (BIA) has adopted a new definition of an aggravated felony related to perjury.  The BIA withdrew from its prior decision in Matter of Martinez-Recinos.  Instead, the BIA surveyed state definitions of perjury and determined that the generic definition of an aggravated felony related to perjury requires that "an offender make a material false statement knowingly or willfully while under oath or affirmation where an oath is authorized or required by law."  The BIA then concluded that perjury in violation of section 118(a) of the California Penal Code matches this definition.  

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

https://www.justice.gov/eoir/page/file/921701/download

BIA Adopts New Framework for National Interest Waivers

The Board of Immigration Appeals (BIA) has vacated its prior decision in NYSDOT governing the standards for national interest waivers.  The new standard outlined by the BIA is that USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence:  (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. 

The first prong, substantial merit and national importance, focuses on the specific endeavor that the foreign national proposes to undertake. The endeavor’s merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. Evidence that the endeavor has the potential to create a significant economic impact may be favorable but is not required, as an endeavor’s merit may be established without immediate or quantifiable economic impact. 

In determining whether the proposed endeavor has national importance, we consider its potential prospective impact. An undertaking may have national importance for example, because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances. But we do not evaluate prospective impact solely in geographic terms. Instead, we look for broader implications. Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance. In modifying this prong to assess “national importance” rather than “national in scope,” as used in NYSDOT, we seek to avoid overemphasis on the geographic breadth of the endeavor.

To determine whether he or she is well positioned to advance the proposed endeavor, we consider factors including, but not limited to: the individual’s education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.

The third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.  In performing this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process. We emphasize that, in each case, the factor(s) considered must, taken together, indicate that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.  We note that this new prong, unlike the third prong of NYSDOT, does not require a showing of harm to the national interest or a comparison against U.S. workers in the petitioner’s field. 

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

https://www.justice.gov/eoir/page/file/920996/download

Ninth Circuit Reminds BIA to Consider Aggregate Likelihood of Torture from Different Sources

In an unpublished decision, the Ninth Circuit reminded the Board of Immigration Appeals (BIA) that when evaluating an applicant's claim under the Convention Against Torture, the BIA must consider the aggregate risk of torture from all potential sources of harm, and not evaluate the risk of harm from each source on an individualized basis.

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

https://cdn.ca9.uscourts.gov/datastore/memoranda/2016/12/27/15-71518.pdf

Eighth Circuit Finds that Arkansas Conviction for Domestic Battery in the Third Degree is a Crime of Violence

The Eighth Circuit has determined that an Arkansas conviction for domestic battery in the third degree is divisible in light of the decision in Mathis v. United States.  In addition, the first subsection, which requests the infliction of injury on the victim, is a crime of violence for federal sentencing purposes.  The court rejected the argument that injury can be inflicted without the use of violent force.  Given the similarity between the definition of a crime of violence in the sentencing context and in the immigration context, this case could have persuasive value in an immigration case.

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

http://media.ca8.uscourts.gov/opndir/16/12/161874U.pdf

Eighth Circuit Finds that Second Degree Burglary in Missouri is a Violent Felony

The Eighth Circuit has concluded, in light of the decision in Mathis v. United States, that the Missouri statute defining second degree burglary is divisible, in so much as the alternative places listed (a building or inhabitable structure) are elements of the statute.  Thus, under the modified categorical approach, a conviction for burglarizing a building matches the generic definition of burglary under federal sentencing law, and thus, qualifies as a violent felony under the  Armed Career Criminal Act (ACCA).  Given the similarity between the definition of burglary for ACCA purposes and the definition of a burglary aggravated felony, this case could have persuasive value in the immigration context.

The full text of U.S. v. Sykes can be found here: 

http://media.ca8.uscourts.gov/opndir/16/12/143139P.pdf