Fourth Circuit Finds Applicant Persecuted on Account of Family Ties

The Fourth Circuit has found a woman was persecuted on account of her membership in a well-known, business-owning family.  While the threatening notes from the gang members did not explicitly reference her family ties, the court noted that they the notes must be considered in context: (1) Zavaleta Policiano and her father’s stores, as well as their familial relationship, were well-known in the community; (2) MS-13 threatened Zavaleta Policiano several times by phone; (3) Zavaleta Policiano’s statement that MS-13 “threatened me because my father had left;” and (4) the threats against Zavaleta Policiano began immediately after her father fled to Mexico.  

"When considering the unchallenged record evidence, we are compelled to conclude that Zavaleta Policiano’s familial relationship to her father was “at least one central reason” MS-13 targeted and threatened her.  The evidence shows that MS-13 explicitly threatened to kill Zavaleta Policiano’s father and his family if he did not pay the extortion demands, and that immediately after he fled El Salvador, the gang began threatening Zavaleta Policiano.  The timing of the threats against Zavaleta Policiano is key, as it indicates that MS-13 was following up on its prior threat to target Barrientos’s family if he did not accede to the gang’s demands.  This explanation appears especially probable given the absence of record evidence that Zavaleta Policiano was ever threatened before her father’s departure."

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

http://www.ca4.uscourts.gov/Opinions/Published/161231.P.pdf

Third Circuit Construes Definition of Tier III Terrorist Organization

The Third Circuit has concluded that a group cannot be designated as a Tier III terrorism group unless party leaders authorized the terrorist activity committed by its members.  "Still, the rule we announce today does not always require that the Government produce conclusive proof that the leader(s) of a group explicitly sign off on each individual terrorist act at issue. Instead, as the Board itself has opined in several cases, evidence of authorization may be direct or circumstantial, and authorization may be reasonably inferred from, among other things, the fact that most of an organization’s members commit terrorist activity or from a failure of a group’s leadership to condemn or curtail its members’ terrorist acts."

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

http://www2.ca3.uscourts.gov/opinarch/171056p.pdf

First Circuit Finds that it Might have Jurisdiction to Review Denial of Sua Sponte Motion to Reopen

The First Circuit has determined that it might have jurisdiction review the denial of a sua sponte motion to reopen, if the motion raised constitutional claims.  However, because the Court concluded that the petition for review should be denied on other grounds, it did not conclusively answer this jurisdictional question.

The full text of Ramirez Matias v. Sessions can be found here: http://media.ca1.uscourts.gov/pdf.opinions/16-2474P-01A.pdf

Ninth Circuit Terminates Proceedings Because of Egregious Fourth Amendment Violation

The Ninth Circuit terminated removal proceedings against a petitioner who was seized by Coast Guard officials based solely on his Latino appearance.  Because this was an egregious Fourth Amendment violation and a violation of immigration regulations designed to protected the petitioner from this type of racial profiling, the court determined that termination of proceedings was required.  In light of the regulatory violation, the court declined to determine if the petitioner's previously submitted application for Family Unit benefits was independent evidence of alienage, finding that the violation of the regulation was grounds for termination, regardless of whether there was independent evidence of alienage.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/30/14-71768.pdf

The Ninth Circuit issued an amended decision in this case on September 19, 2018. In it, the Court determined that even though the Coast Guard engaged in egregious violations of the Fourth Amendment, the immigration authorities would have discovered his alienage through his Family Unity benefits application. Nevertheless, the Court held that Mr. Sanchez may be entitled to termination of his removal proceedings without prejudice for egregious regulatory violations. The Court remanded his proceedings to the agency to determine if termination is appropriate. “Applying our test for termination without prejudice, we conclude that Sanchez has made a prima facie showing that the Coast Guard officers’ violation of § 287.8(b)(2) was conscience-shocking and therefore egregious.”

The full text of the amended opinion can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/19/14-71768.pdf

Ninth Circuit Remands Case where Petitioner Displayed Indicia of Mental Incompetency

The Ninth Circuit remanded a case where the petitioner displayed signs of mental indicia, but the Immigration Judge did not apply the standards of Matter of N-A-M- to determine if the petitioner was competent to participate in his removal proceedings.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/29/15-70155.pdf

Fifth Circuit Finds that Indeterminate Sentence Substantiates Aggravated Felony Finding

The Fifth Circuit determined that a petitioner who was convicted of a crime of violence, and who was sentenced to an indeterminate sentence of no more than 1 year and no less than 180 days, had been convicted of an aggravated felony and was ineligible for cancellation of removal.

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

http://www.ca5.uscourts.gov/opinions/pub/16/16-60015-CV0.pdf

Third Circuit Finds that Filing Deadlines Apply to Motions to Reopen for CAT Protection

The Third Circuit finds that the filing deadlines for motions to reopen also apply to motions to reopen for protection under the Convention Against Torture (CAT).  Thus, the motion must either by filed within 90 days of the final order of removal or must include evidence of changed country conditions since the time of the removal order that are related to the CAT claim . 

The full text of Bamaca-Cifuentes v. Attorney General can be found here:

http://www2.ca3.uscourts.gov/opinarch/163104p.pdf

Ninth Circuit Finds that Washington Conviction for Second-Degree Assault is not a Crime of Violence under Sentencing Guildelines

The Ninth Circuit finds that a Washington conviction for second-degree assault is not a crime of violence under the federal sentencing guidelines.  The statute is not a categorical match to the definition of a crime of violence because it does not necessarily require the actual, attempted, or threatened use of force capable of causing physical pain or injury to another.  In addition, the jury need not decide between the various subsections of the statute, indicating that is both overbroad and indivisible.  

Given the similarity between the definition of a crime of violence in the immigration and federal sentencing context, this decision likely has persuasive effect in the immigration context.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/25/16-30096.pdf

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