BIA Determines that a Fraudulently Procured Certificate of Citizenship does not Confer Citizenship

The Board of Immigration Appeals has held that a certificate of citizenship procured by fraud does not confer citizenship on the applicant.  Thus, the applicant is still subject to charges of removability in an immigration court.  "A certificate of citizenship only provides documentation of United States citizenship for persons who claim to have obtained that status derivatively.  It does not confer United States citizenship but only furnishes recognition and evidence that the applicant has previously obtained such status derivatively, that is, upon the naturalization of a parent or parents.  Thus, the issuance of a certificate of citizenship, like a United States passport, only serves as indicia of citizenship. It is not a grant of United States citizenship.  Because the respondent’s United States citizenship claim was based on fraud, his Certificate of Citizenship is void. Once it was discovered that the respondent’s Certificate of Citizenship had been issued in error, the District Director had an affirmative duty to institute administrative proceedings to cancel it."

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

https://www.justice.gov/eoir/page/file/971036/download

Ninth Circuit Finds that CA Conviction for Fleeing from a Police Officer isn't a CIMT

The Ninth Circuit has determined that a California conviction for fleeing from a police officer is not a crime involving moral turpitude.  This statute, which requires a defendant to act with “willful or wanton disregard,” can be violated by fleeing a police officer while committing “three or more violations that are assigned a traffic violation point count under Section 12810.”  In other words, a person can violate this statute by fleeing a police officer and committing three traffic violations, such as knowingly driving on a suspended license that was revoked because of prior negligent driving.  This conduct, the court concluded, does not entail "a substantial, actual risk of imminent death to another person."  The court further concluded that the statute was not divisible, and as such, never qualifies as a crime involving moral turpitude.

The full text of Ramirez-Contreras v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/08/14-70452.pdf

Seventh Circuit Finds that Individual Subject to Reinstated Expedited Order of Removal has no Standing to Challenge Asylum Regulations

The Seventh Circuit has found that an individual subject to a reinstated order of removal, and thus, who is ineligible under the regulations to apply for asylum, has no standing to challenge that regulation because asylum is a discretionary form of relief.  

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D06-08/C:16-3234:J:Manion:aut:T:fnOp:N:1977342:S:0

Ninth Circuit Recognizes the Difficulty of Testifying about Trauma

In an unpublished decision, the Ninth Circuit recognized the difficulty of testifying about trauma and reversed an adverse credibility determination for a victim of domestic violence seeking asylum.  

"[T]he circumstances of Ortiz’s testimony make the asserted inconsistencies only minimally probative of her credibility. At both her reasonable fear interview and at her hearing before the IJ, Ortiz testified without counsel, through an interpreter, and about very traumatic subjects. It is likely that the inconsistencies identified by the BIA were the products not of untruthfulness, but of misunderstanding, mistake, or bad memory.  Considering the record as a whole, the 'totality of the circumstances, and all relevant factors,' we hold that the BIA’s adverse credibility determination was not supported by substantial evidence."

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

https://cdn.ca9.uscourts.gov/datastore/memoranda/2017/06/09/14-73863.pdf

Fourth Circuit Finds that Virginia Deferred Adjudication Qualifies as a Conviction for Immigration Purposes

The Fourth Circuit has determined that a deferred adjudication program which requires a defendant to plead guilty at the outset still qualifies as a conviction if the judge imposes probation.  The Court noted that it would have reached a different outcome if the defendant had not been required to enter a guilty plea.  The Court recognized that its decision created "a disparity between defendants who plead guilty under the Virginia first offender statute and those who plead not guilty."

The full text of Payan-Jaquez v. Sessions can be found here: 

http://www.ca4.uscourts.gov/Opinions/Published/161147.P.pdf

Third Circuit Finds that IJ's Rude Behavior Violates Due Process and Urges the BIA to Stop Avoiding the Question of the Cognizability of Particular Social Groups

The Third Circuit determined that an Immigration Judge violated an unrepresented applicant's due process rights by continuously interrupting him, speaking to him in a rude tone, and preventing him from providing testimony about his fear of return to El Salvador.  The judge was also clearly unfamiliar with the basic facts in the record.

In addition, the Court called on the Board of Immigration Appeals (BIA) to stop its practice of bypassing the question of whether a particular social group is valid, and proceeding straight to the nexus determination.  "In a number of recent cases, the BIA likewise has assumed a cognizable PSG or imputed political opinion and disposed of the appeal by finding no nexus.  This practice, however, can have troubling consequences.  First, it places the analytical cart before the horse in cases like this one, where the very definition of the PSG is then at issue, for denying relief based on the absence of a nexus begs the question: nexus to what?  Even the Attorney General has observed “it would be better practice for Immigration Judges and the Board to address at the outset whether the applicant has established persecution on account of membership in a [PSG], rather than assuming it as the Board did here. Deciding that issue—and defining the [PSG] of which the applicant is a part—is fundamental to the analysis of which party bears the burden of proof and what the nature of that burden is.”  Second, even where the PSG definition is undisputed—so that the BIA would certainly have discretion to conclude that the efficiency of assuming a given PSG weighs in favor of resolution at the nexus stage—a reflexive practice of simply assuming a PSG has been established and is cognizable does not account for the very real benefits on the other side of the scale."  

"[T]he BIA’s practice of assuming PSG and resolving cases on nexus grounds often inhibits the proper and orderly development of the law in this area by leaving the contours of protected status undefined, precluding further appellate review under the Chenery doctrine, and ultimately generating additional needless litigation because of the uncertainty in this area."  

The full text of Serano-Alberto v. Attorney General can be found here:

http://www2.ca3.uscourts.gov/opinarch/153146p.pdf

BIA Addresses Family as a Particular Social Group

The Board of Immigration Appeals (BIA) has determined that family can be a cognizable particular social group for asylum and withholding of removal purposes.  However, the BIA noted that not all family-based social groups will qualify as particular social groups.  "We agree with the DHS’s argument that the inquiry in a claim based on family membership will depend on the nature and degree of the relationships involved and how those relationships are regarded by the society in question."  In the instant case, the BIA had "no difficulty identifying the respondent, a son residing in his father’s home, as being a member of the particular social group comprised of his father’s immediate family." 

The BIA went on to find that the applicant had not demonstrated the requisite nexus between his family ties and the harm he suffered.  "An asylum applicant’s membership in a family-based particular social group does not necessarily mean that any harm inflicted or threatened by the persecutor is because of, or on account of, the family membership.  A persecution claim cannot be established if there is no proof that the applicant or other members of the family were targeted because of the family relationship. If the persecutor would have treated the applicant the same if the protected characteristic of the family did not exist, then the applicant has not  established a claim on this ground."

"According to the facts found by the Immigration Judge in this case, the cartel attempted to coerce the respondent’s father into selling contraband in his store. When he refused, the cartel approached the respondent to sell its product because he was in a position to provide access to the store, not because of his family membership." Under these circumstances, the BIA found that family membership was not one central reason for the harm inflicted on the applicant.  Instead, "the cartel’s motive to increase its profits by selling contraband in the store was one central reason for its actions against the respondent and his family.  Any motive to harm the respondent because he was a member of his family was, at most, incidental. In this regard, we point out that the evidence does not indicate that the persecutors had any animus against the family or the respondent based on their biological ties, historical status, or other features unique to that family unit."  

"It is significant that the cartel directly asked the respondent to sell their drugs in the store. This act bears no tie to an enumerated ground but is rather a direct expression of the cartel’s motive to increase its profits by selling contraband in the store."  This last piece of the BIA's decision suggests that if the cartel had never asked the applicant to sell drugs, but instead, had harmed him after his father refused to do so, the applicant may have had a stronger argument that he suffered family-based persecution.  

The full text of Matter of L-E-A- is available here:

https://www.justice.gov/eoir/page/file/969456/download

Ninth Circuit Upholds Habitual Drunkard Bar to Good Moral Character

Sitting en banc, the Ninth Circuit has reversed the 3-judge panel's decision in Ledezma-Cosino v. Sessions, and upheld the habitual drunkard bar to good moral character.  First, the court upheld the determination that Ledezma-Cosino met the definition of a habitual drunkard.  "In 2010, treating doctors recorded a 'more than ten year history of heavy alcohol abuse,' during which time Petitioner drank '1 liter of tequila per day on the average.' In 2008, he was convicted of driving under the influence. During Petitioner’s removal proceedings, Petitioner’s daughter testified that he had 'a drinking problem' and that his liver had failed because of '[t]oo much alcohol,' '[t]oo much drinking.  At a minimum, the evidence does not compel the conclusion that Petitioner was not a habitual drunkard."

Second, the court determined that the bar was not unconstitutionally vague. "[T]he term 'habitual drunkard' readily lends itself to an objective factual inquiry. And whatever uncertainty the term 'habitual drunkard' may raise in borderline cases, a person of ordinary intelligence would have fair notice that the term encompasses an average daily consumption of one liter of tequila for a 10-year period, leading to a conviction for driving under the influence. Because Petitioner has engaged in conduct that is clearly covered, he 'cannot complain of the vagueness of the law as applied to the conduct of others.'"

Finally, the court also determined that the bar did not violate equal protection.  "Congress reasonably could have concluded that, because persons who regularly drink alcoholic beverages to excess pose increased risks to themselves and to others, cancellation of removal was unwarranted. We see nothing irrational about that legislative choice, which furthers the legitimate governmental interest in public safety. Nor does it matter that Congress has permitted cancellation of removal for other 13 groups who may pose similar risks."

The full text of Ledezma-Cosino v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/05/30/12-73289.pdf

Eighth Circuit Finds that Nebraska Conviction for Making Terroristic Threats is a Violent Felony

The Eighth Circuit has determined that a Nebraska conviction for making terroristic threats is a violent felony under the Armed Career Criminal Act (ACCA).  The statute criminalized, among other things, "commit[ing] any crime of violence . . . With the intent of causing the evacuation of a building, place of assembly, or facility of public transportation."  The Nebraska Supreme Court has defined the term “crime of violence” as “an act which injures or abuses through the use of physical force and which subjects the actor to punishment by public authority.”

Fletcher, the defendant, argued that the statute could be violated by making threats to property, and thus, did not qualify as a violent felony.  The Court disagreed.  "Fletcher points to no case in which Nebraska has applied the terroristic threats statute to a threat to commit arson of an unoccupied building. As a result, even if the theoretical possibility exists that the Nebraska terroristic threats statute could encompass threats only to property, Fletcher has not demonstrated a realistic probability that Nebraska would apply the statute in that manner." 

Given the similarity in definition between a violent felony under the ACCA and a crime of violence aggravated felony for immigration purposes, this case could have persuasive effect in the immigration context.  

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

http://media.ca8.uscourts.gov/opndir/17/05/161220P.pdf

Fifth Circuit Finds that AZ Drug Statute is Divisible

The Fifth Circuit has determined that Arizona Revised Statute Section 13-3405(A)(4), which criminalizes sale, transportation, importation, transfer and offers to transport for sale, import, sell, or transfer of marijuana, is divisible.  The court noted that Arizona state courts are divided on whether the "offer to" offenses - known as solicitation offenses - were distinct from the other offenses, or were merely alternative means committing these offenses.  The court took a "peak" at the petitioner's record of conviction, and noted that the indictment charged all of these provisions, but his plea document and judgment listed only “attempted transportation of marijuana for sale.”  This, the court concluded, indicated a divisible statute.  "When the relevant documents use one alternative term to the exclusion of all others, that indicates that the terms within the statute are individual elements."  The court also note that there are separate pattern instructions for transport for sale and offer to transport for sale, reinforcing that these are distinct offenses.

The full text of Ibanez-Beltran v. Lynch can be found here:
http://www.ca5.uscourts.gov/opinions/pub/15/15-60183-CV0.pdf

Ninth Circuit Judge Issues Compelling Plea for Government to Rethink its Immigration Policies

In a concurring opinion, Judge Reinhardt issued a heartfelt plea for an undocumented immigration who had lived in the the United States for nearly 30 years, was married to a US citizen, had US citizen children, and who was a successful business owner.  "We are unable to prevent Magana Ortiz’s removal, yet it is contrary to the values of this nation and its legal system. Indeed, the government’s decision to remove Magana Ortiz diminishes not only our country but our courts, which are supposedly dedicated to the pursuit of justice. Magana Ortiz and his family are in truth not the only victims. Among the others are judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well. I concur as a judge, but as a citizen I do not."

The full text of his impassioned defense of the immigrant petitioner in Ortiz v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/05/30/17-16014.pdf

Supreme Court Construes Definition of Sexual Abuse of a Minor

The Supreme Court has issued a decision addressing when statutory rape offenses qualify as sexual abuse of a minor aggravated felonies.  The Court held that "[a]bsent some special relationship of trust, consensual sexual conduct involving a younger partner who is at least 16 years of age does not qualify as sexual abuse of a minor under the INA, regardless of the age differential between the two participants. We leave for another day whether the generic offense requires a particular age differential between the victim and the perpetrator, and whether the generic offense encompasses sexual intercourse involving victims over the age of 16 that is abusive because of the nature of the relationship between the participants."  Thus, a conviction under section 261.5(c) of the California Penal Code does not constitute sexual abuse of a minor, as it criminalizes sexual conduct with individuals older than age 16.  

The full text of Esquivel-Quintana v. Sessions can be found here:

https://www.supremecourt.gov/opinions/16pdf/16-54_5i26.pdf

Ninth Circuit Address Oregon Child Sexual Abuse Statute

The Ninth Circuit has determined that section 163.427(1)(a) of the Oregon Revised Statutes is divisible, and a conviction under subparagraph 163.427(1)(a)(A) is sexual abuse of a minor within the generic federal definition and therefore an aggravated felony.

Section 163.427(1) provides: A person commits the crime of sexual abuse in the first degree when that person: (a) Subjects another person to sexual contact and: (A) The victim is less than 14 years of age; (B) The victim is subjected to forcible compulsion by the actor; or (C) The victim is incapable of consent by reason of being mentally defective, mentally incapacitated or physically helpless; or (b) Intentionally causes a person under 18 years of age to touch or contact the mouth, anus or sex organs of an animal for the purpose of arousing or gratifying the sexual desire of a person.

The question posed was whether subsections (A)-(C) where alternative elements of different crimes or merely alternative means of committing the same offense.  The court observed that "the statutory text joins the element of subjecting another person to sexual contact to one of three alternative enumerated circumstances. This phrasing suggests that the legislature created three different offenses: subjecting a victim who is less than 14 years old to sexual contact, or subjecting another person to sexual contact through the use of forcible compulsion, or subjecting another person who is incapable of consent for specified reasons to sexual contact."

The court also consulted the conviction records and noted that "because Count 3 of Diego’s state court indictment, which charged him with “unlawfully and intentionally attempt[ing] to subject [B.C.], a person less than 14 years of age, to sexual contact,” in violation of section 163.427, tracks subparagraph (1)(a)(A), but lacks any text referencing subparagraphs (1)(a)(B) or (C), the indictment 'indicate[s], by referencing one alternative term to the exclusion of all others, that the statute contains a list of elements, each one of which goes toward a separate crime.'  Similarly, Diego’s petition to enter a plea admits to the conduct of 'attempt[ing] to subject [B.C.] to sexual contact,' which again tracks the wording of subparagraph (1)(a)(A), in that it admits only that he subjected B.C., a victim known to be less than 14 years of age, to sexual contact. Like the indictment, the plea petition makes no reference to the conduct described in subparagraphs (1)(a)(B) or (C). From these documents, we infer that Oregon treated the victim’s age as a necessary fact that the state was required to prove beyond a reasonable doubt to secure Diego’s conviction, i.e., an element of the offense."

Finally, the court consulted state case law interpreting the statutes.  "In State v. Marshall, for example, the Oregon Supreme Court characterized 'sexual contact' and 'subjecting the victim to forcible compulsion,' a phrase specific to subparagraph 163.427(1)(a)(B), as 'the two elements of the crime.'  Similarly, in State v. Gray the Court of Appeals of Oregon described 'subjected to forcible compulsion'—the operative language of subparagraph 163.427(1)(a)(B)—as an 'element' of the crime.  The court used the same characterization in State v. Nelson. These cases point persuasively to the conclusion that the disjunctive enumerated list of subparagraphs (A) through (C) is a list of alternative elements, not means."

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/05/26/13-72048.pdf

BIA Finds that Applicant for Fraud Waiver and Asylum has Burden to Prove he did not Participate in Genocide

The Department of Homeland Security presented expert testimony that the respondent served in a special police force during the Bosnian War, in an area of the country where large-scale genocide took place.  The applicant sought a fraud waiver under 237(a)(1)(H) and asylum-related relief.  The Board of Immigration Appeals held that given the expert testimony, the applicant had the burden of proving that the ineligibility bars for participating in extrajudicial killings and genocide did not apply.

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

https://www.justice.gov/file/967306/download

BIA Construes Persecutor Bar

The Board of Immigration Appeals has found that a person is subject to the persecutor bar if they assisted or aided in the persecution of any person and the persecutor was motivated to harm the person on account of a protected ground, even if the assisting individual was not so motivated.  Thus, because Alvarado stood guard while his superiors tortured someone on account of his political opinion, he is subject to the persecutor bar, even though he was not personally motivated to harm the person on account of his political opinion.

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

https://www.justice.gov/eoir/page/file/964491/download

Seventh Circuit Finds Petitioner has no Standing to Challenge Regulation Barring Asylum Application

The Seventh Circuit has held that a petitioner subjected to a final administrative order of removal for non-lawful permanent resident convicted of an aggravated felony (FARO) has no standing to challenge the regulation that bars individuals subjects to FAROs from applying for asylum.  Asylum is a form of discretionary relief in which there is no liberty interest at stake, and thus, the petitioner cannot establish the regulation preventing him from applying for asylum has caused any actual injury to him.

The full text of Degaldo-Arteaga v. Sessions can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D05-12/C:16-1816:J:Bauer:aut:T:aOp:N:1962958:S:0

Ninth Circuit Addresses Extortion as a Form of Persecution

The Ninth Circuit has determined that extortion, when accompanied by threats of violence, qualifies as persecution.  If a protected ground (i.e., family ties) is at least a reason for this persecution, an applicant qualifies for withholding of removal.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/05/01/13-72250.pdf

Eighth Circuit finds that Minnesota Burglary Convictions are Crimes of Violence under the Residual Clause of the Sentencing Guidelines

The Eighth Circuit has held that Minnesota convictions for burglary involving a controlled substance, third degree burglary, and aiding and abetting third degree  burglary are crimes of violence under the residual clause of the sentencing guidelines because they create a risk of a violent confrontation between the burglar and the occupant, the police, or another third party, and thus, present a serious potential risk of physical injury to another.  This definition of a crime of violence is similar to the definition in 18 USC 16(b), which is incorporated into the definition of a crime of violence aggravated felony for immigration purposes.  Though some circuits have held 18 USC 16(b) to be unconstitutionally vague, in those circuits that have not done so, this case may be persuasive evidence that these Minnesota convictions are also aggravated felonies for immigration purposes.

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

http://media.ca8.uscourts.gov/opndir/17/05/143412P.pdf

Fourth Circuit Finds that MD Third Degree Burglary is a CIMT

The Fourth Circuit has determined that a Maryland conviction for third degree burglary qualifies as a crime involving moral turpitude.  "The act of breaking and entering a dwelling, with the intent to commit any crime, necessarily involves conduct that violates an individual’s reasonable expectation that her personal living and sleeping space will remain private and secure." 

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

http://www.ca4.uscourts.gov/Opinions/Published/161427.P.pdf

Third Circuit Finds that Reinstated Order Bars Asylum

The Third Circuit has determined that an individual subject to a reinstated order of removal may not apply for asylum, but is instead limited to applying for withholding of removal and protection under the Convention Against Torture.

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

http://www2.ca3.uscourts.gov/opinarch/153374p.pdf