Third Circuit Finds South Carolina Conviction for Accessory after the Fact is not an Obstruction of Justice Aggravated Felony

The Third Circuit has determined that a South Carolina conviction for accessory after the fact does not qualify as an obstruction of justice aggravated felony.  In South Carolina, accessory after the fact occurs where the defendant, knowing that a principal has committed a felony, “harbor[s] or assist[s] the principal felon . . . for the purpose of enabling the principal felon to escape detection or arrest.”  The court noted that this offense focused not on a defendant’s intent and actions regarding a particular judicial proceeding, but on the principal of a crime.  Because "there are infinite actions a defendant may undertake with the intent to aid the principal after the commission of a crime, but before the commencement of judicial proceedings," there is no causal nexus between the South Carolina statute and the federal conceptions of obstruction of justice.  

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

http://www2.ca3.uscourts.gov/opinarch/161979p.pdf

First Circuit Finds that Reinstated Order of Removal Bars Asylum

The First Circuit has determined that a person who reenters the United States illegally after being deported, and whose order of removal is reinstated by the Department of Homeland Security, is not eligible for asylum.  The person, if found to have a reasonable fear of persecution or torture by an Asylum Officer, is permitted to apply for withholding of removal and protection under the Convention Against Torture before an Immigration Judge.

The full text of Garcia Garcia v. Sessions can be found here:
http://media.ca1.uscourts.gov/pdf.opinions/15-2571P-01A.pdf

Ninth Circuit Discusses Return of Abusive Spouse to Home Country as Grounds for Reopening Proceedings

In an unpublished decision, the Ninth Circuit determined that the return of an applicant's abusive spouse to her home country could qualify as changed country conditions that warranted reopening of her proceedings.  

The full text of Lopez v. Sessions can be found here: 

https://cdn.ca9.uscourts.gov/datastore/memoranda/2017/04/27/11-70271.pdf

Eighth Circuit Finds that Arkansas Residential Burglary is not a Violent Felony

The Eighth Circuit has had that an Arkansas conviction for residential burglary does not qualify as a violent felony under the Armed Career Criminal Act (ACCA) because it encompasses the burglary of certain types of vehicles.  The court also found that the statute was indivisible with respect to what type of structure was being burglarized.  Given the similar definition of generic burglary for ACCA purposes and aggravated felony purposes, this decision could have persuasive value in the immigration context.

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

http://media.ca8.uscourts.gov/opndir/17/04/161233P.pdf

Fourth Circuit Addresses Jurisdiction to Review "Cancelled" Order of Removal and Finds Virginia Statutory Burglary is not a Burglary Aggravated Felony

The Fourth Circuit has determined that it maintains jurisdiction to review a final administrative order of removal issued against a non-lawful permanent resident convicted of an aggravated felony even if the Department of Homeland Security cancels that order after the person's removal from the United States.  The court also determined that Virginia statutory burglary is not a burglary aggravated felony because it is overbroad and indivisible with respect to the manner and location of the entries criminalized.

The full text of Castendet v. Sessions can be found here:

http://www.ca4.uscourts.gov/Opinions/Published/152484.P.pdf

Third Circuit Clarifies Standard for Government Acquiescence

The Third Circuit has determined a government's general efforts to combat organized criminal groups do not preclude the possibility that it would acquiescence to the torture of a specific individual.  Dutton-Myrie submitted circumstantial evidence via live testimony and sworn letters attesting that the Panamanian government had not taken steps to protect him or his family in the past and would likely continue to breach the duty to intervene in the future. In particular, he submitted a letter from the Panamanian Public Safety Department attesting to continued threats to his family members and that his mother lodged grievances about these threats with public officials.  He also submitted an affidavit from his former girlfriend in which she stated that she reported a 2005 incident where Dutton-Myrie was stabbed by gang members to the police.  Dutton-Myrie also testified about the futility of reporting to the police.  The Third Circuit remanded the case, directing the Board of Immigration Appeals to assess whether this evidence demonstrated that the Panamanian government would be willfully blind regarding any future torture inflicted on Dutton-Myrie.  

The full text of Dutton-Myrie v. Attorney General can be found here:

http://www2.ca3.uscourts.gov/opinarch/161599p.pdf

Ninth Circuit Addresses Mexican LGBT Asylum Claim

In an unpublished decision, the Ninth Circuit has applied the rationale of Bringas-Rodriguez to an asylum applicant whose claim was based on a future fear of harm, and not on past persecution.   Thus, even in cases involving future persecution, courts must consider that legislative developments in Mexico cannot be conflated with "on-the-ground progress" regarding the treatment of the LGBT community.

The decision in Hernandez v. Sessions can be found here: 

https://cdn.ca9.uscourts.gov/datastore/memoranda/2017/04/20/13-71356.pdf

BIA Clarifies Standard for Administrative Closure

The Board of Immigration Appeals (Board) has determined that the Department of Homeland Security's prosecutorial priorities are not an appropriate factor for consideration when determining whether to administratively close a case.  In addition, a court's limited resources are secondary to a respondent's interest in having his case adjudicated to the merits.  Thus, the primary consideration for an Immigration Judge in determining whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.

The full text of Matter of W-Y-U- can be found here: 

https://www.justice.gov/eoir/page/file/958526/download

BIA Reaffirms Categorical Approach

The Board of Immigration Appeals (Board) issued its fourth decision in Matter of Chairez-Castrejon, reaffirming the use of the categorical approach in immigration proceedings, and the applicability of the Supreme Court's definition of a divisible statute in Mathis v. United States.  The Board also noted that it is only appropriate to "peek" at a record of conviction to ascertain the divisibility of a statute if state case law is not clear in identifying the elements of the statute.

The full text of Matter of Chairez-Castrejon can be found here: https://www.justice.gov/eoir/page/file/959656/download

Fourth Circuit Reaffirms Family-Based Particular Social Group

In an unpublished decision, the Fourth Circuit again re-affirmed its family-based particular social group analysis, finding that a woman was eligible for asylum based on her family relationships, when she was persecuted because of her familial relationship to her father and brother.  "The correct analysis focuses on Gomez herself as the applicant, and asks whether Gomez was targeted because of her membership in the social group consisting of her immediate family. In other words, whether she would have been selected as the recipient of those threats absent that familial connection.  It is of no moment that the IJ made a finding of fact that the gang’s motivation with respect to her father and brother was actually because of extortion and not religious activity, as we explained in both Cordova and Hernandez-Avalos."  

The full decision in Gomez v. Sessions can be found here: 

http://www.ca4.uscourts.gov/Opinions/Unpublished/152576A.U.pdf

BIA Determines that CA Conviction for Assault with a Deadly Weapon or Force Likely to Produce Great Bodily Injury is Categorically a CIMT

The Board of Immigration Appeals (Board) has determined that a California conviction for assault with a deadly weapon or force likely to produce great bodily injury is categorically a crime involving moral turpitude (CIMT).  The Board note that most general assault crimes are not CIMTs, but clarified that because the California statute required either the use of a deadly weapon or force likely to produce great bodily injury - both of which it considered to be aggravating factors - it was more reprehensible than a general assault.  This more serious conduct counterbalanced the lack of any specific intent to cause harm in the statute. 

The full text of Matter of Wu is available here:

https://www.justice.gov/file/957431/download

BIA Rules that Statutory Rape can be a CIMT Even if Statute Requires no Culpable Mental State about the Victim's Age

Pedro Jimenez-Cedillo was convicted of sexual solicitation of a minor in violation of section 3-324 of the Maryland Criminal Law.  Jimenez-Ceillo argued that his state statutes of conviction reach consensual sexual conduct and do not require that a violator possess any culpable mental state regarding the age of the victim. The Department of Homeland Security argued that although the Maryland law lacks these elements, the offense is a categorical crime involving moral turpitude because all violations of the statutes necessarily involve either a very young victim—that is, a child under 14 years of age—or a substantial age difference between an adult perpetrator and a minor victim under the age of 16.  "While we held in Matter of Silva-Trevino that moral turpitude was inherent in a sexual offense against a minor if an alien knew or should have known that the victim was a minor, our decision did not foreclose the possibility that moral turpitude will inhere in some crimes, even if the relevant statute lacks an element that requires the perpetrator to have some culpable mental state regarding the victim’s age."  "We therefore clarify our decision in Matter of Silva-Trevino and now hold that a sexual offense in violation of a statute enacted to protect children is a crime involving moral turpitude where the victim is particularly young—that is, under 14 years of age—or is under 16 and the age differential between the perpetrator and victim is significant, or both, even though the statute requires no culpable mental state as to the age of the child." "[S]ection 3-307(a)(3) of the Maryland Criminal Law, the victim is much younger (no older than 13) and the perpetrator must be at least 4 years older. While sections 3-307(a)(4) and (5) reach relatively older victims (under 16 years of age), these provisions also require that the perpetrator be an adult who is significantly older than the victim—specifically, at least 6 years older. We therefore conclude that all of the conduct proscribed by section 3-307 categorically fits within the generic definition of a crime involving moral turpitude.  Finally, we note that a defendant may be convicted under section 3-324(b) for knowingly soliciting a law enforcement officer who is posing as a minor to engage in sexual activity. We understand such an act to be equivalent to an attempt to engage an actual minor in unlawful sexual activity."

The full text of Matter of Jimenez-Cedillo can be found here:

https://www.justice.gov/eoir/page/file/955631/download

Ninth Circuit Punts on Question of Divisibility of CA Joyriding Statute

Guillermo Arriaga-Pinon argued that in light of Mathis v. United States, the Ninth Circuit needed to reconsider its holding in Duenas-Alvarez v. Holder that section 10851 of the California Penal Code (CPC) is divisible with respect to principal actors and accessories after the fact.  The Court declined to address the divisibility question, but instead found that the record of conviction  did not conclusively establish that Arriaga-Pinon had been convicted of driving or taking the vehicle, where merely driving the vehicle would not be an aggravated felony.

The full text of United States v. Arriaga-Pinon can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/04/07/16-50188.pdf

First Circuit Denies Citizenship Claim Based on Legitimation Laws

The First Circuit found that Frank Monteiro Miranda, a lawful permanent resident who was born in Angola to unmarried parents of Cape Verde citizenship, did not derive citizenship under former section 321 of the INA when his mother naturalized.  The Court noted that Angola, Cape Verde, and Massachusetts (the state in which his parents later wed) had all abolished the legal distinctions between legitimate and illegitimate children before Miranda's mother naturalized.  Moreover, Miranda's father signed his birth certificate in front of witnesses, evidencing his acknowledgement of paternity.  Thus, Miranda did not derive citizenship by virtue of his mother's naturalization.  In addition, in light of this legal framework, a second Immigration Judge was not required to give res judicata effect to an earlier Judge's finding that Miranda had derived citizenship.

The full text of Miranda v. Sessions can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/16-2174P-01A.pdf

Fifth Circuit Construes Requirements for Convention Against Torture

The Fifth Circuit has determined that an applicant need only show acquiescence by low level government officials, and not high ranking officials, to demonstrate eligibility for protection under the Convention Against Torture.

The full text of Iruegas-Valdez v. Yates can be found here:

http://www.ca5.uscourts.gov/opinions/pub/15/15-60532-CV0.pdf

Seventh Circuit Chastises BIA for Failing to Take Note of Widely Reported Country Conditions

Deng Arej was born in the southern part of Sudan, but later relocated to the northern part of Sudan.  He was admitted to the United States as a refugee before Sudan split into two countries.  As a result of a criminal conviction, he was ordered removed.  After 8 months of detention, he sought to reopen his case based on changed country conditions, including the rapidly worsening conditions in South Sudan.  The Immigration Judge denied his motion, finding that he had not demonstrated any material changed conditions.  The Board of Immigration Appeals (BIA) affirmed.

The Seventh Circuit reversed.  The Court noted that the BIA "ignored the growing violence in the south during this period."  Furthermore, a competent immigration service would not ignore world events. The dramatically worsening conditions in South Sudan have been widely reported, with the young nation described as “cracking apart” and United Nations officials raising concerns about genocide. Tens of thousands of civilians have been killed, every major cease‐fire that has been painstakingly negotiated by African and Western officials has been violated, and dangerous fissures are opening up within the South Sudanese military.  And time doesn’t stand still. The Board’s order dismissing Arej’s appeal from the immigration judge’s denial of his motion to reopen was issued on May 8, 2015—almost two years ago. Considering that Arej has not yet been removed and that the order was perfunctory, the Board should consider whether he should be allowed to present evidence concerning current conditions in the two Sudans."

The full text of Arej v. Sessions can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D03-28/C:15-2061:J:Posner:aut:T:fnOp:N:1937333:S:0

Ninth Circuit Deems TPS to be an Admission for Adjustment of Status Purposes

The Ninth Circuit has determined that a non-citizen who has been granted Temporary Protected Status (TPS) has been inspected and admitted, as required for adjustment of status under section 245(a) of the INA.  The court noted that the INA specifically states that for adjustment of status purposes, TPS holders are considered to be maintaining lawful nonimmigrant status, and also deems that a person must be admitted to the United States to obtain nonimmigrant status.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/03/31/14-35633.pdf

Eighth Circuit Finds that KS Conviction for Attempted Aggravated Assault is Crime of Violence

The Eighth Circuit has determined that a Kansas conviction for attempted aggravated assault qualifies as a crime of violence under the federal sentencing guidelines.  The court noted that the statute requires that a defendant make the victim reasonably fear immediate physical harm, and that such conduct constitutes the use of violent force.  Given the similarity in the definition of a crime of violence under the sentencing guidelines and the definition of a crime of violence aggravated felony in the Immigration and Nationality Act, this case likely impacts whether a conviction under this statute would be considered an aggravated felony for immigration purposes.

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

http://media.ca8.uscourts.gov/opndir/17/03/161334P.pdf

Ninth Circuit Applies 212(h) Aggravated Felony Bar to those Admitted to the US as Conditional Residents

The Ninth Circuit has held that individuals who enter the United States as conditional residents (i.e., those who obtain their conditional residency through consular processing and not adjustment of status) are subject to the aggravated felony bar in section 212(h) of the INA.  In other words, such individuals are not eligible for a 212(h) waiver of inadmissibility if they have been convicted of an aggravated felony since their admission to the United States as conditional residents.

The full text of Eleni v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/03/24/13-73455.pdf

Ninth Circuit Holds that Unauthenticated Immigration Applicants do not Establish Alienage

The Department of Homeland Security (DHS) sought to introduce evidence of Felipe De Jesus Flores' alienage through a Form I-485 and Form G-325A that he had allegedly submitting to the former Immigration and Naturalization Service.  In an attempt to authenticate these documents, the DHS presented a letter from Supervisory Deportation Officer Barr that stated that the documents were copies of documents found in De Jesus Flores' A file.   The letter also stated that Barr’s “official duties and responsibilities include creation and maintenance of official DHS records, pursuant to the delegated authority from the Secretary of Homeland Security, legal custodian under Section 103 of the Immigration and Nationality Act, as amended.” It further states that Barr is an “authorized certifying designee 4 of the Secretary of Homeland Security.” 

The court noted that the governing regulation, 8 C.F.R. § 287.6(a), states that any official record should be certified by “the official having legal custody of the record or by an authorized deputy.” Under 8 U.S.C. § 1103(a)(2), the Secretary of DHS (“Secretary”) is clearly designated as the legal custodian of all immigration records, and further, under 8 U.S.C. § 1103(a)(6), the Secretary has the authority to confer his “powers, privileges, or duties” onto his employees. Finally, 8 C.F.R. § 2.1 states that the Secretary may accomplish such conferral through “regulation, directive, memorandum, or other means as deemed appropriate.”

The court held that no evidence, aside from Barr’s own statements, however, that the Secretary conferred Barr with the duty to certify documents on his behalf. Under 8 C.F.R. § 2.1, the Secretary has four methods of delegating his authority, and the government had failed to provide evidence of any of them. 

The full text of de Jesus Flores v. Sessions can be found here:

https://cdn.ca9.uscourts.gov/datastore/memoranda/2017/03/20/14-71561.pdf