First Circuit Remands for Further Analysis as to Whether Massachusetts Conviction for Assault and Battery with a Dangerous Weapon is a CIMT

The First Circuit has remanded a case for further consideration as to whether a Massachusetts conviction for assault and battery with a dangerous weapon (ABDW) is a crime involving moral turpitude.  The court that ABDW can be committed both intentionally recklessly, and that the Massachusetts definition of "recklessness" departs from the definition employed by the Model Penal Code and a majority of states in that a defendant in Massachusetts need not have been subjectively aware of the risk posed by his conduct in order to have acted recklessly.  Even in light of the Board of Immigration Appeals' (Board) decision in Matter of Wu, which construed a California conviction for assault with a deadly weapon that could be committed through reckless conduct, the court was not convinced that the Board had adequately considered the definition of recklessness in Massachusetts.  As such, the court remanded the case for further consideration.

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

http://media.ca1.uscourts.gov/pdf.opinions/16-2220P-01A.pdf

Second Circuit Construes Stop-Time Rule

Hoxquelin Gomez Heredia was convicted of an inadmissible offense in 1999, but he was not charged with inadmissibility until he returned from a trip abroad in 2015.  He argued that the stop-time rule was not triggered until 2015, when he was actually deemed inadmissible by virtue of his travel.  The Second Circuit disagreed.  

"In short, when a non-citizen is rendered inadmissible—by a conviction, admission of the criminal conduct, or through some other means—the stop-time rule may make him ineligible for cancellation of removal, if, as of the date of his commission of the underlying offense, he had not yet resided in the United States continuously for seven years. To state it another way: as long as a qualifying offense later does render the non-citizen inadmissible under 8 U.S.C. § 1182(a)(2), the date of the commission of the offense governs the computation of a lawful permanent resident’s continuous residency in the United States. Accordingly, even if Gomez is correct that he was not rendered inadmissible until 2015—a position that we find dubious—his commission of the 1999 offense would still be the operative date for purposes of calculating his period of residency in the United States."

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

http://www.ca2.uscourts.gov/decisions/isysquery/f3e75b9c-9223-4cc1-b03f-608714d2213b/2/doc/16-1465_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/f3e75b9c-9223-4cc1-b03f-608714d2213b/2/hilite/

Eighth Circuit Finds that Conviction for Third Degree Riot in Minnesota is not a Crime of Violence

The Eighth Circuit has determined that a Minnesota conviction for third degree riot is not a crime of violence under the federal sentencing laws because it criminalizes the use of force against both people and property.  The court further determined that the statute is indivisible with respect to force applied against a person and force applied against property.  Given the similarity in the definition of a crime of violence under the sentencing laws and the immigration laws, this case could have persuasive value in the immigration context.

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

http://media.ca8.uscourts.gov/opndir/17/07/162436P.pdf

Seventh Circuit Finds that Illinois Conviction for Possession of more than 30 but not more than 500 Grams of Marijuana with Intent to Deliver is not Aggravated Felony

The Seventh Circuit has determined that an Illinois conviction for possession of more than 30 but less than 500 grams of marijuana with intent to deliver is not  an aggravated felony.  The court relied on the Supreme Court's decision in Moncrieffe, which determined that possession of a small amount of marijuana with intent to deliver for no remuneration is not an aggravated felony.  In Moncrieffe, the Court discussed 30 grams of marijuana as a small amount.  Given that the Illinois statute at issue criminalizes possession of slightly more than 30 grams with intent to deliver, the Seventh Circuit was unwilling to find that it necessarily involved a non-small amount of marijuana.  Thus, the conviction is not an aggravated felony, and the Court remanded to determine if the petitioner's application for cancellation of removal should be granted as a matter of discretion.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D07-20/C:17-1130:J:Wood:aut:T:fnOp:N:1997576:S:0

Eighth Circuit Finds that Missouri Second-Degree Assault is not Crime of Violence

The Eighth Circuit has determined that subsection (3) of Mo. Rev. Stat. § 565.060.1 (second-degree assault), which criminalizes reckless driving that results in injury, is not a crime of violence under the federal sentencing guidelines.  Given the similar definition of a crime of violence under the sentencing guidelines and in the immigration law, this decision should have persuasive value in the immigration context.

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

http://media.ca8.uscourts.gov/opndir/17/07/164140P.pdf

Ninth Circuit finds that UN Convention against Transnational Organized Crime is not Basis for Relief from Removal

The Ninth Circuit has determined that the United Nations Convention against Transnational Organized Crime does not present an independent basis for relief from removal.  

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/21/13-73098.pdf

Ninth Circuit takes Review of Negative Reasonable Fear Finding

The Ninth Circuit took jurisdiction over an appeal of a negative reasonable fear finding, even though the petition for review as filed more than 30 days after the Immigration Judge's order.  In so doing, the Court noted the extremely complicated legal landscape that governs jurisdiction over review of negative reasonable fear determinations.

"The agency regulation relied on by the government states that no appeal shall lie from the immigration judge’s decision after an immigration judge concurs with the determination from the asylum officer finding no reasonable fear of torture or persecution.  If Martinez had taken the regulation at face value, he might reasonably have thought that the IJ decision was not subject to review—either through an appeal to the BIA or through a petition for review by this court.

This reading would have been inaccurate in light of the statute that confers jurisdiction over final orders of removal on this court. But looking to the statutes still would not have helped Martinez because a plain reading of the relevant provisions would have suggested that his administrative case would only become “final” when the BIA issued its decision or when the time when he was permitted to file such an appeal had passed.

Likewise, thoroughly reading the materials that the BIA made available to Martinez—in particular the BIA Practice Manual to which he was directed by the BIA filing receipt—would have revealed that the BIA generally has the authority to review appeals from decisions of Immigration Judges pertaining to the Convention Against Torture. And if Martinez continued reading the BIA Manual, he would have discovered that reasonable fear determinations by immigration judges did not appear on a list of issues over which the BIA did not have jurisdiction.  

The BIA’s own filing receipt could have added to the confusion Martinez faced by stating that if you leave the United States after filing this appeal but before the Board issues a decision your appeal will be considered withdrawn and the Immigration Judge’s decision will become final as if no appeal had been taken, leaving a strong impression that the IJ’s decision was not currently final."

The Court again urged the BIA to develop a streamlined mechanism for dismissing reasonable fear appeals over which it has jurisdiction, so as to avoid late-filed petitions for review.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/20/14-70339.pdf

BIA Construes Adam Walsh Act

The Board of Immigration Appeals (Board) has determined that a Louisiana conviction for computer-aided solicitation of a minor qualifies as an offense against a minor under the Adam Walsh Act even if the victim was an adult undercover police officer.  The Board noted that the Adam Walsh Act includes attempts to engage in criminal sexual conduct with a minor, and that the conviction at issue fell squarely within that category.

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

https://www.justice.gov/eoir/page/file/983601/download

Eleventh Circuit Finds that a Rebel-Controlled Trailer is not a Prison

The Eleventh Circuit has determined than a petitioner who was held by fellow Contra rebels in a trailer was not confined to a prison, and therefore, did not commit a material misrepresentation in his adjustment of status application when he answered "no" to the question about whether he had ever been confined to a prison.  The Court noted a prison is a state-run entity, and that confinement to prison implies legal authority to confine the person.

The full text if Alfaro v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201414913.pdf  

Ninth Circuit Orders Bond Hearings for Unaccompanied Alien Minors held in the Custody of the Office of Refugee Resettlement

The Ninth Circuit has held that unaccompanied alien minors held in the custody of the Office of Refugee Resettlement are entitled to bond hearings under the Flores settlement.  The passage of subsequent legislation did not invalidate the Flores agreement's requirement for bond hearings.  

As was the case under the Flores Settlement, the determinations made at these bond hearings held will not compel a child’s release. Regardless of the outcome of a bond hearing, a minor may not be released unless the agency charged with his or her care identifies a safe and appropriate placement.  Immigration judges may assess whether a minor should remain detained or otherwise in the government’s custody, but there must 31 still be a separate decision with respect to the implementation of the child’s appropriate care and custody.  At the time the Flores Settlement was signed, it was the INS that was charged with ensuring that a child, regardless of a bond determination, was not released to an improper custodian.17 The only meaningful difference is that today it is ORR, not INS, which is responsible for performing that function. 

The full text of Flores v. Sessions can be read here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/05/17-55208.pdf

Ninth Circuit Denies Bond Hearings for Individuals in Reinstatement Proceedings

The Ninth Circuit has held that individuals in reinstatement proceedings (including withholding only proceedings before an Immigration Judge) are not entitled to bond hearings under section 236(a) of the INA.  The Court reaffirmed that these individuals are entitled to prolonged detention hearings under Diouf v. Napolitano.  The Court recognized that its decision creates a circuit split with the Second Circuit.  

The full text of Padilla-Ramirez v. Bible can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/06/16-35385.pdf

An amended opinion was subsequently published here:

http://www.ca6.uscourts.gov/internet/opinions/opinions.php

Ninth Circuit Addresses Corroborating Evidence Requirements

The Ninth Circuit has determined that a Court need not provide an asylum applicant with notice of the corroborating evidence necessary to support his case and the opportunity to obtain that evidence if the applicant's testimony was not credible.  The Court distinguished its decision in Ren v. Holder, which crafted this "notice and opportunity" requirement for applicants who had provided credible testimony.  

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/03/14-72469.pdf

Ninth Circuit Finds that Conviction for Conspiracy to Export Defense Articles without a License is not a Firearms Trafficking Aggravated Felony

The Ninth Circuit has held that a conviction for conspiracy to export defense articles without a license in violation of 18 U.S.C. § 371 and 22 U.S.C. § 2778, is not a categorical match the definition of a firearms trafficking aggravated felony.  The Court found that 22 U.S.C. § 2778 criminalizes unlicensed export of a broad range of “munitions,” such as “underwater hardware,” and thus, does not meet the definition of the aggravated felony, which is limited to “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.”  The Court also determined that the statute was indivisible, and thus, could never qualify as an aggravated felony.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/03/15-10354.pdf

Ninth Circuit finds that Tennessee Aggravated Assault Qualifies as a Crime of Violence

The Ninth Circuit has determined that a Tennessee conviction for aggravated assault qualifies as a crime of violence.  The court noted that different punishments are prescribed for reckless and intentional conduct.  Thus, the alternative mens reas are alternative elements.  A conviction for intentional conduct under the statute qualifies as a crime of violence, as it requires the infliction of serious bodily injury or the use or display of a deadly weapon.  Therefore, force more violent than mere offense touching is required to sustain a conviction.  Given the similarity between the definition of a crime of violence under the sentencing guidelines and a crime of violence in the immigration context, this decision will likely have persuasive value in the immigration context.

The full text of US v. Perez-Silvan can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/28/16-10177.pdf

Ninth Circuit finds that Texas Aggravated Assault Statute is a Crime of Violence

The Ninth Circuit has determined that a conviction for aggravated assault in Texas is categorically a crime of violence under the federal sentencing guidelines.  The statute requires the infliction of serious bodily injury or the use or exhibition of a deadly weapon.  The court rejected the argument that seriously bodily injury could be inflicted without the use of violence force, such as through the administration of poison.  The court also rejected the assertion that a defendant could exhibit a deadly weapon without using it.  Given the similarity between the definition of a crime of violence under the sentencing guidelines and a crime of violence in the immigration context, this decision will likely have persuasive value in the immigration context.

The full text of US v. Calvillo-Palacios can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/28/16-10039.pdf

Second Circuit Finds that New York Drug Statutes are Indivisible

The Second Circuit has determined that New York's drug statutes are indivisible with respect to the controlled substance involved in an offense.  As such, a conviction under N.Y. Penal Law § 220.31 (criminal sale of a controlled substance in the fifth degree) is not an aggravated felony because a conviction may involve substances not listed in the federal controlled substance schedules.

The full text of Harbin v. Sessions can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/c310fed2-a2b8-4d7f-82f9-48d3d829572c/12/doc/14-1433_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c310fed2-a2b8-4d7f-82f9-48d3d829572c/12/hilite/

Ninth Circuit Acknowledges Changed Country Conditions for the LGBT Community in Ethiopia

The Ninth Circuit has remanded a case in which the Board of Immigration Appeals denied a motion to reopen to seek protection under the Convention Against Torture (CAT) based on changed country conditions in Ethiopia for the LGBT community.  In so doing, the court noted that "at least two of the reports submitted with Agonafer’s motion to reopen provide reports of violence directed against homosexuals in Ethiopia."  "It is undisputed that Agonafer is a homosexual male. Given Agonafer’s sexual orientation and the evidence of the treatment of homosexuals in Ethiopia, there is sufficient evidence that, if proved, would establish his prima facie eligibility for deferral of removal under the CAT."

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/23/13-73122.pdf

Second Circuit Extends Vartelas

The Second Circuit extended the Supreme Court's decision in Vartelas v. Holder, and found that a lawful permanent resident who commits a crime before April 1, 1997, but who is not formally convicted of that crime until after April 1, 1997, is still not subject to grounds of inadmissibility for that conviction if he is returning from a brief, innocent, and casual trip abroad.

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

http://www.ca2.uscourts.gov/decisions/isysquery/b89fe7ff-0f51-4dd0-a70b-a7a14fd38a4f/11/doc/15-516_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/b89fe7ff-0f51-4dd0-a70b-a7a14fd38a4f/11/hilite/

Eighth Circuit Finds that MN Diversion Qualifies as a Conviction

The Eighth Circuit has found that Minnesota's diversion program - which requires a defendant to admit facts sufficient to warrant a guilty finding - qualifies as a conviction for immigration purposes.  In the instant case, the petitioner was ordered to pay restitution and complete community service hours, and the circuit court determined that these requirements qualified as a restraint on the petitioner's liberty.

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

http://media.ca8.uscourts.gov/opndir/17/06/161256P.pdf

Supreme Court Addresses Prejudice Requirement for Ineffective Assistance of Counsel

The Supreme Court has issued further guidance on how immigrants who were misadvised about the immigration consequences of their guilty pleas can establish the required prejudice to vacate those pleas.  Specifically, the Court determined that even an immigrant with no defense to a pending charge might decide to take their chances with a jury, on the slim chance they would be acquitted, rather than take a plea bargain that would result in certain deportation.

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

https://www.supremecourt.gov/opinions/16pdf/16-327_3eb4.pdf