Third Circuit finds Petitioner Eligible for Withholding of Removal

In an unusual move, the Third Circuit granted a petitioner's application for withholding of removal without remanding to the agency for further fact-finding.  The court determined that country conditions evidence, ignored by the Board, was sufficient to show that current conditions in Honduras established a clear probability that the petitioner would be persecuted on account of his political opinion.  "In this instance, we are convinced that evidence of the politically motivated death threats, the inaction on Mendoza’s complaints, a perpetrator and judge who shared a political affiliation in opposition to that of Mendoza, and evidence of a politically corrupt justice system that failed to reign in politically motivated violence in Honduras compels two findings: first, the Honduran government was unwilling or unable to protect Mendoza from death threats; and, second, Mendoza could not safely relocate in Honduras."

The full text of Mendoza-Ordonez v. Attorney General can be found here:

http://www2.ca3.uscourts.gov/opinarch/163333p.pdf

Eighth Circuit Finds that Voluntary Return Breaks Continuous Physical Presence

The Eighth Circuit has determined that a petitioner who waived his right to a hearing before an Immigration Judge and who voluntarily returned to Mexico thereafter had broken his continuous physical presence for the purpose of applying for cancellation of removal.  The court further concluded that the failure to comply with 8 C.F.R. § 240.25 (which contains the required advisals for voluntary departure) did not preclude a finding of a voluntary departure under threat of deportation sufficient to break the ten-year period of continuous presence.  

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

http://media.ca8.uscourts.gov/opndir/17/08/161623P.pdf

Eighth Circuit finds that Court Erred by Admitting Incriminating Statement from Ex-Spouse

The Eighth Circuit has held that the agency erred in admitting an incriminating statement made by the petitioner's ex-spouse and a USCIS report regarding the ex-spouse's alleged engagement in fraudulent marriages without providing the petitioner with the opportunity to cross-examine her ex-spouse.

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

http://media.ca8.uscourts.gov/opndir/17/08/163619P.pdf

Ninth Circuit Construes California Conspiracy Statute; Burdens of Proof

The Ninth Circuit has determined that California's conspiracy statute (penal code section 182(a)(1)) is broader than the generic definition of a controlled substance violation because it criminalizes conspiracy to commit any crime, including ones unrelated to controlled substances.  However, because California law requires jurors to agree unanimously on the object of the conspiracy, the statute is divisible.  As such, the Court proceeded to the modified categorical approach, and determined that the petitioner was convicted of conspiracy to transport a controlled substance (health & safety code section 11352).  This section itself is also divisible, with respect to the identity of the controlled substance.  Because the criminal complaint only identified the controlled substance in the list of overt acts, the Court concluded that it was inconclusive as to whether the petitioner's conviction necessarily rested upon a controlled  substance in the federal drug schedules.  The Court further concluded that the petitioner could not demonstrate her eligibility for relief based on this inconclusive record of conviction, as she bore the burden of proving that she was not convicted of a controlled substance offense.  The Court found that this conclusion was not inconsistent with the Supreme Court's decision in Moncrieffe v. Holder because Moncrieffe addressed the government's burden to prove the deportability of a lawful permanent resident, not a non-citizen's burden to prove eligibility for relief from removal.

This decision now deepens a circuit split with the First Circuit with respect to inconclusive records of conviction.  One judge on the Ninth Circuit panel dissented with respect to the conclusion regarding the burden of proof and an inconclusive record of conviction.  

Given the multiple past cases from the Ninth Circuit on this issue (with different outcomes each time), I expect this will not be the last we hear of inconclusive records from the court.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/23/14-72003.pdf

First Circuit Finds that CT Conviction for Third Degree Larceny is Theft Offense

The First Circuit has determined that a Connecticut conviction for third-degree larceny qualifies as a theft offense aggravated felony.  The petitioner argued that the statute was not a categorical match to the definition of a theft offense because it did not require an intent to permanently deprive the owner of the benefits of ownership and because it included theft of services.  The court rejected the first argument, finding that a total deprivation is not required.  The court also rejected the second argument, finding that Congress did not intend the definition of a theft offense to be a perfect match to the common-law definition of theft, and noting that at the time theft-related aggravated felonies were added to the INA, the Model Penal Code and half of the states included theft of services in the definition of theft.

Finally, the court declined to rule on whether theft by fraudulent means, which is clearly covered by the statute, precluded a determination that the statute was a categorical match to the generic definition of a theft offense, because the petitioner had failed to raise this argument to the agency.

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

http://media.ca1.uscourts.gov/pdf.opinions/15-2453P-01A.pdf

Ninth Circuit Finds that CA Second Degree Murder Conviction is an Aggravated Felony

The Ninth Circuit has determined that a petitioner who was convicted in California of second degree murder under an aiding and abetting theory has been convicted of an aggravated felony.  The court relied on the Supreme Court's 2007 decision in Gonzalez v. Duenas-Alvarez, finding that there have been no material changes to California's aiding and abetting case law.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/18/15-70885.pdf

Ninth Circuit Applies Maslenjak Decision to Application for Lawful Permanent Residence

In an unpublished decision, the Ninth Circuit applied the Supreme Court's recent decision in Maslenjak v. US to determine if a petitioner had been lawfully admitted to permanent residence.  The petitioner had used a false birth certificate to adjust status, though all evidence suggested that he was eligible to adjust under his true identity.  "First, Maslenjak suggests that falsehoods that do not otherwise affect an applicant’s substantive legal eligibility for permanent residence do not justify concluding that the applicant was not 'lawfully admitted for permanent residence.'  Second, Maslenjak suggests that substantive qualification for LPR status is a complete defense to the allegation that one was not 'lawfully admitted for permanent residence.'”

Thus, the court remanded for the Board of Immigration Appeals to determine if it should adopt the Maslenjak standard for determining whether a noncitizen is lawfully admitted to permanent residence.

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

https://cdn.ca9.uscourts.gov/datastore/memoranda/2017/08/18/13-73009.pdf

Board of Immigration Appeals Finds that Oregon Conviction for Burglary of a Dwelling is a CIMT

The Board of Immigration Appeals (BIA) has determined that an Oregon conviction for burglary of a dwelling is a crime involving moral turpitude, even though it does not require that the burglar intend to commit a morally turpitudinous act after entry.  Instead, the BIA relied on its prior rationale in Matter of Louissant that burglary of a dwelling "tears away the resident’s justifiable expectation of privacy and personal security and invites a violent defensive response from the resident."  Even though the Oregon statute does not require the dwelling to be occupied at the time of the offense, it requires to be intermittently occupied, which the BIA found sufficient to invoke the concerns of Loussaint.

The full text of Matter of J-G-D-F- can be found here:

https://www.justice.gov/eoir/page/file/990986/download

Fourth Circuit finds that Individual in Reinstatement Proceedings is Ineligible for Asylum

The Fourth Circuit has determined that individuals in reinstatement proceedings are not eligible to apply for asylum, but are instead limited to withholding of removal and protection under the Convention Against Torture.  "We think it clear that, by enacting the reinstatement bar, Congress intended to preclude individuals subject to reinstated removal orders from applying for asylum."

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

http://www.ca4.uscourts.gov/Opinions/Published/161280.P.pdf

Fourth Circuit finds that Deferred Prosecution Agreement Constitutes Conviction

The Fourth Circuit has determined that a petitioner who signed a deferred prosecution agreement and who agreed in court that he was stipulating to the facts in the agreement had sustained a conviction for immigration purposes.  In addition, the court determined that the term "crime involving moral turpitude" is not void for vagueness.  

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

http://www.ca4.uscourts.gov/Opinions/Published/161558.P.pdf

Ninth Circuit finds that Idaho Petit Theft Statute is Overbroad with Respect to Definition of a CIMT

The Ninth Circuit has determined that Idaho's petit theft statute is overbroad as compared to the definition of a crime involving moral turpitude because it criminalizes temporary takings of property.  

The court also noted that the effect of an inconclusive record is unclear because it remains an open question whether the burden allocations in Young v. Holder survived the Supreme Court's decision in Moncrieffe v. Holder.  However, the panel declined to reach that question because another panel has priority to do so.  

The court also directed the BIA to reconsider its decision in Matter of Cortez, in which the BIA found that the unambiguous text of the cancellation statute disqualified any person from seeking cancellation who had been convicted of a crime involving moral turpitude for which a sentence of at least one year could be imposed, regardless of whether the conviction took place more than five years after the person's admission to the United States.  The court found the statute is not unambiguous, and thus, directed the BIA to examine its analysis using its discretion to interpret the statute in a reasonable manner. 

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/08/11-72422.pdf                              

Ninth Circuit finds that Oregon Delivery of a Controlled Substance Statute is Indivisible

The Ninth Circuit has determined that an Oregon conviction for delivery of a controlled substance is overbroad and indivisible with respect to the definition of an aggravated felony because it criminalizes solicitation offenses.  

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/08/13-71784.pdf

Ninth Circuit Finds that Nevada Conviction for Making a False Statement in an Application for a Driver's License is not a CIMT

In an unpublished decision, the Ninth Circuit determined that a Nevada conviction for making a false statement in an application for a driver's license is not categorically a crime involving moral turpitude because it it criminalizes conduct that is not inherently fraudulent.  "There are myriad ways a defendant could commit the felony described in § 483.530(2) without intending to defraud. For instance, the provision expressly makes it a felony knowingly to make a false statement in a driver’s license application. Knowing misrepresentation alone, however, is not intent to defraud. Only facts that go to the identity of the applicant—such as name or Social Security number—would be material to the issuance of a license such that the misrepresentation was necessarily done with the intent to procure the license.  An applicant might falsify certain personal identifying information without intending that these misrepresentations result in procurement of the identification, as those false statements would have no effect on whether the license would issue."

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

https://cdn.ca9.uscourts.gov/datastore/memoranda/2017/08/09/14-72744.pdf

BIA Determines that Asylee who Adjusts is Subject to Deportability

The Board of Immigration Appeals (Board) has determined that an asylee who has adjusted status to lawful permanent residence has relinquished his asylee status, and can be removed notwithstanding the restrictions on removal of asylees found in section 208(c)(2) of the INA.  The Board noted an applicant voluntarily relinquishes the protections of being an asylee when he adjusts status, and has the option of remaining an asylee indefinitely.

The full text of Matter of N-A-I- can be found here: 

https://www.justice.gov/eoir/page/file/986401/download

Ninth Circuit Issues En Banc Decision Weighing in on Divisibility of CA Drug Statutes

The Ninth Circuit, in an en banc decision, has determined that section 11352 of the California Health & Safety Code is divisible with respect to the actus reus (i.e., selling, transporting, giving away, offering to sell, offering to transport, etc.) and the controlled substance.  Several judges dissented from the majority's decision.

The full text of US v. Martinez-Lopez can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/28/14-50014.pdf

Seventh Circuit finds that IL Conviction for Obstruction of Justice is not an Aggravated Felony

The Seventh Circuit has determined that it has jurisdiction to review whether a petitioner was properly placed in administrative removal proceedings based on a conviction for an aggravated felony even if the petitioner does not challenge the aggravated felony finding before the Department of Homeland Security.  The court further determined that an Illinois conviction for obstruction of justice is not an aggravated felony.  In so doing, the court declined to defer to the Board of Immigration Appeals' decision in Matter of Valenzuela Gallardo, but instead referred to the definition of an obstruction-related aggravated felony in Matter of Espinoza‐Gonzalez. Because the Illinois statute at issue does not require interference with the proceedings of a tribunal, it is not categorically an aggravated felony, and the court remanded the case for further proceedings.  The court did conclude that the petitioner was improperly placed in administrative removal proceedings.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D08-01/C:16-1784:J:Manion:dis:T:fnOp:N:2003083:S:0

Fifth Circuit Construes Equitable Tolling

The Fifth Circuit has determined that when an applicant is seeking equitable tolling of the filing deadline for a motion to reopen based on changes in case law, she must demonstrate that she filed the motion within 90 days of becoming aware of that change in law.

"Because Gonzalez-Cantu filed her motion to reopen on March 18, 2015, she needs to show that she discovered Garcia-Carias no more than 90 days before that date, given that her lack of knowledge of that case was the circumstance that supposedly tolled the limitations period. Yet her sworn statement, executed on January 5, 2015, says only that she learned of the case 'recently.' 'Recently' could mean several weeks before or several months before, either of which defeats her tolling claim. Indeed, at one point in her motion to reopen, she said she learned of Garcia-Carias on October 10, 2014, and the IJ concluded, based on that date, that her motion was untimely. Although Gonzalez-Cantu claims that the October date was a 'typographical error,' it further shows that she has failed to establish when she actually learned of the case."

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

http://www.ca5.uscourts.gov/opinions/pub/15/15-60697-CV0.pdf

Fourth Circuit Denies Family-Based Asylum Claim

The Fourth Circuit has upheld the denial of an asylum claim based on family membership, finding that the petitioner was threatened because of a personal dispute with her mother-in-law (who wanted custody of her minor child) and not on account of her family ties.  In so doing, the court distinguished its prior precedent regarding family-based asylum claims.

"Although the familial relationships at issue in Hernandez-Avalos and the present case involve a mother’s relationship with her son, this case is unlike Hernandez-Avalos in critical respects. In Hernandez-Avalos, a non-familial third party persecuted the petitioner because of her family association for the purpose of gang recruitment. In contrast, Velasquez had a long-standing personal disagreement with Estrada over a solely personal conflict regarding D.A.E.V. Estrada’s persecution of Velasquez was only between the two of them—that is, merely incidental to Estrada’s desire to obtain custody of D.A.E.V."  

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

http://www.ca4.uscourts.gov/Opinions/Published/161669.P.pdf

Third Circuit Determines that PA Conviction for Obstructing the Administration of Law or other Governmental Function is not a CIMT

The Third Circuit has determined that a Pennsylvania conviction for obstructing the administration of law or other government function is not a crime involving moral turpitude.  The court noted that the intent to impair or obstruct governmental functions, standing alone, is not morally turpitudinous; the obstruction must occur by deceit, graft, trickery, or dishonest means.  Nothing in the text of the statute requires fraudulent or otherwise deceptive conduct as a necessary element of committing the offense, and thus, it involves non-morally turpitudinous conduct.

The full text of Ildefonso-Candelario v. Attorney General can be found here:

http://www2.ca3.uscourts.gov/opinarch/163625p.pdf

First Circuit Construes Stop-Time Rule

The First Circuit has determined that service of a Notice to Appear (NTA) triggers the stop-time rule for cancellation of removal, even if the NTA does not contain the date and time of the initial removal hearing.  In so doing, the First Circuit deferred to the Board of Immigration Appeals' decision in Matter of Camarillo.

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

http://media.ca1.uscourts.gov/pdf.opinions/16-1033P-01A.pdf