Ninth Circuit Requires IJs to Consider Detainees' Ability to Pay Bond

The Ninth Circuit has issued a decision requiring Immigration Judges to consider a detainee's financial circumstances and alternatives to detention during an initial bond hearing under section 236(a) of the INA.  "Since the government’s purpose in conditioning release on the posting of a bond in a certain amount is to 'provide enough incentive for released detainees to appear in the future, we cannot understand why it would ever refuse to consider financial circumstances: the amount of bond that is reasonably likely to secure the appearance of an indigent person obviously differs from the amount that is reasonably likely to secure a wealthy person’s appearance.  Nor can we understand why the government would refuse to consider alternatives to monetary bonds that would also serve the same interest the bond requirement purportedly advances."  The decision also calls for new bond hearings where these considerations were not taken into account during the original bond determination.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/02/16-56829.pdf

BIA finds that Exception to 212(a)(6)(A)(i) only Applies to VAWA Self-Petitioner

The Board of Immigration Appeals has determined that the exception to removability under section 212(a)(6)(A)(i) of the INA (present without admission or parole) applies only to a VAWA self petitioner.  It does not apply to a respondent who has been subjected to extreme cruelty, but who has not applied for benefits as a VAWA self petitioner.  The instant case involved a respondent who fled domestic violence in Guatemala at the hands of family members.  

The full text of Matter of Pangan-Sis can be found here:

https://www.justice.gov/eoir/page/file/1001951/download

BIA Addresses 212(h) Aggravated Felony Bar

The Board of Immigration Appeals (BIA) had held that a lawful permanent resident is ineligible for a 212(h) waiver if he was inspected, admitted, and physically entered the country as a lawful permanent resident at any time in the past, even if such admission was not the alien’s most recent acquisition of lawful permanent resident status.  In the instant case, the respondent was initially granted lawful permanent residence through consular processing in 1967, was convicted of an aggravated felony in 2007, re-adjusted his status in 2009, and was convicted of another aggravated felony in 2015.  The BIA found him ineligible for a 212(h) waiver after the second offense, on the ground that he was previously inspected, admitted, and physically entered the United States as a lawful permanent resident in 1967, even though his current status as a lawful permanent resident was achieved in 2009 through adjustment of status.

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

https://www.justice.gov/eoir/page/file/1003441/download

Eleventh Circuit finds that Petitioner cannot combine a 212(h) Waiver and VAWA Cancellation of Removal

An applicant is ineligible for VAWA cancellation of removal for non-lawful permanent residents if he is inadmissible for commission of two crimes involving moral turpitude.  The Eleventh Circuit has determined that a petitioner cannot use a 212(h) waiver to waive this ground of inadmissibility in order to make himself eligible for VAWA cancellation.  In so doing, the court deferred to the Board of Immigration Appeals' decision in Matter of Y-N-P-. 

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

http://media.ca11.uscourts.gov/opinions/pub/files/201611458.pdf

Ninth Circuit Finds that BIA Dismissal on Jurisdictional Grounds of Appeal of Negative Reasonable Fear Finding is Final Order for Federal Jurisdictional Purposes

The Ninth Circuit has determined that when the Board of Immigration Appeals (BIA) dismisses the appeal of a negative reasonable fear determination by an Immigration Judge, even when the dismissal is on jurisdictional grounds, that decision qualifies as a final order of removal for appellate jurisdictional purposes.  As such, so long as the petition for review is filed within 30 days of the BIA's decision, the federal appeals court has jurisdiction to review the decision.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/12/14-70339.pdf

Eighth Circuit finds that Missouri Attempted First Degree Assault Statute is a Crime of Violence under the Sentencing Guidelines

The Eighth Circuit has determined that a conviction under Missouri's attempted first degree assault statute is a crime of violence under the sentencing guidelines.  The court determined that Missouri's definition of attempt is not overbroad, and that the infliction of serious physical injury upon a victim is sufficient to demonstrate that physical force was employed.  Given the similarity between the definition of a crime of violence in the sentencing guidelines and in the immigration context, this decision has persuasive impact on immigration cases.

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

http://media.ca8.uscourts.gov/opndir/17/10/171017P.pdf

Seventh Circuit Finds that Illinois Felon in Possession of a Firearm is Broader than Firearm Aggravated Felony Ground

The Seventh Circuit has determined that Illinois' felon in possession of a firearm is broader than the definition of a firearms-related aggravated felony because Illinois' statute criminalizes possession of pneumatic weapons.  The court further determined that the conviction is indivisible.  As such, a conviction under Illinois' felon in possession of a firearm statute will never qualify as a firearms-related aggravated felony.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D10-12/C:17-1335:J:Easterbrook:aut:T:fnOp:N:2044840:S:0

Seventh Circuit finds that Petitioner in Reinstatement Proceedings is not Eligible for Asylum

The Seventh Circuit overruled its prior decision holding that a petitioner in reinstatement proceedings does not have standing to challenge the statute and regulation that ban him from applying for asylum.  However, in reaching the merits of the claim, the court determined that the statute clearly renders such a petitioner ineligible for asylum.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D10-11/C:16-3234:J:Manion:aut:T:fnOp:N:2043619:S:0

Seventh Circuit Reaffirms that Immigration Judges can Review the Denial of U Visa Waivers

The Seventh Circuit has rejected the Board of Immigration Appeals' decision in Matter of Khan and reaffirmed that Immigration Judges have the authority to review the denial of a waiver of inadmissibility submitted in conjunction with a U visa application.

The decision in Baez-Sanchez v. Sessions can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D10-06/C:16-3784:J:Easterbrook:aut:T:fnOp:N:2041304:S:0

BIA Clarifies the Reliability of Late-Issued Birth Certificates

The Board of Immigration Appeals (BIA) rejected U.S. Citizenship and Immigration Services' (USCIS) unofficial rule that any birth certificate registered more than one year after the subject's birth is insufficient to establish the family ties of the person.  "Even if a birth certificate does not reflect that its registration was contemporaneous with the birth, an adjudicator may conclude that it is sufficiently reliable to establish parentage, depending on the circumstances. In making this determination, the adjudicator should consider all relevant factors, including, but not limited to, (1) information in the FAM regarding the availability and reliability of birth registrations in the country of birth during the time period at issue; (2) the length of time between the birth and the registration; (3) any credible explanation proffered by the petitioner as to the personal, societal, or historical circumstances that prevented a particular birth certificate from being registered contemporaneously, and any evidence in support of that explanation; (4) any credible explanation for why a particular birth certificate was lost or destroyed; (5) any evidence that the parental relationship was independently corroborated prior to the registration of the birth; (6) the length of time between the birth registration and the filing of the visa petition; and (7) information regarding whether the document was based on facts that were contemporaneous with the birth or on facts that were more recently established."

The BIA also enumerated the following of secondary evidence that a petitioner may submit to establish his or her relationship with a sibling beneficiary: (1) governmental, medical, religious, school, financial, employment, insurance, or residential records that reflect the names of the parent(s) and child; (2) family photographs with notations indicating the persons photographed, as well as the date and place they were taken; (3) correspondence, preferably with the original envelope, showing the date written and referring to the parent(s) and child; (4) affidavits by persons who have personal knowledge of the birth; and (5) the results of DNA testing conducted in a prescribed manner, as explained to the petitioner by USCIS. Given the advances in DNA testing in recent years, the USCIS should encourage petitioners to pursue this option, particularly if little other secondary evidence is available.  Secondary evidence that was created contemporaneous with the birth will be the most persuasive.

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

https://www.justice.gov/eoir/page/file/997411/download

Eleventh Circuit Finds that Florida Conviction for Criminal Use of Personal Identification Information is Categorically a CIMT

In an unpublished decision, the Eleventh Circuit has determined that a Florida conviction for criminal use of personal identification information is categorically a crime involving moral turpitude.  "Because the least culpable conduct under § 817.568(2)(a) involves the specific intent to possess personal information with intent to defraud, the BIA reasonably concluded that Petitioner’s offense involves moral turpitude."

The full text of Vlichez-Bello v. Attorney General can be found here: 

http://media.ca11.uscourts.gov/opinions/unpub/files/201616764.pdf

Ninth Circuit Finds that Petitioner's Departure from the US did not Constitute a Valid Waiver of his Right to Appeal

The Ninth Circuit has determined that a petitioner's departure from the United States prior to filing an appeal with the Board of Immigration Appeals (BIA), on its own, does not constitute a valid waiver of his right to appeal.  "[E]ven though the departure-waiver regulation expressly states that an alien’s departure constitutes a waiver of his right to appeal to the BIA, an IJ must inform an alien who requests immediate removal that his departure would constitute a waiver of his right to appeal."  

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/21/14-72172.pdf

Eighth Circuit Finds that Illinois Burglary Statute is Broader than Generic Definition of Burglary

The Eighth Circuit has determined that Illinois' burglary statute is overbroad as compared to the generic definition of burglary because the Illinois statute includes burglary of detached semitrailers.  Given the similarity between the generic definition of burglary in the criminal and immigration contexts, this decision may have persuasive value in the immigration context.

The full text of United State v. Byas can be found here:

http://media.ca8.uscourts.gov/opndir/17/09/163616P.pdf

BIA Construes Inadmissibility for Material Misrepresentation and Participation in Extrajudicial Killings

The Board of Immigration Appeals (BIA) has clarified the standard for when a misrepresentation is material, and thus, makes a non-citizen inadmissible.  The standard articulated is whether the misrepresentation tends to shut off a line of inquiry that is relevant to the non-citizen’s admissibility and that would predictably have disclosed other facts relevant to his or her eligibility for a visa, other documentation, or admission to the United States.  After the Department of Homeland Security (DHS) meets its burden of proof, the burden shifts to the non-citizen to establish that no proper determination of inadmissibility could have been made.

The BIA also crafted a standard for determining whether a non-citizen had assisted in the extrajudicial killings of others.  The court must consider (1) the nexus between the alien’s role, acts, or inaction, and the extrajudicial killing; and (2) his scienter, meaning his prior or contemporaneous knowledge of the killing.  "[W]e look at whether the alien’s role was material or integral to the killing—or, as the DHS argues, whether the alien’s role 'contributed; to the ultimate harm. We also agree with the Ninth Circuit’s ruling that mere acquiescence or membership in an organization is insufficient to establish culpability."  Direct proof of actual knowledge is not required.  Instead, the non-citizen must have sufficient knowledge that the consequences of his actions may assist in acts of extrajudicial killing. The fact finder may look to direct or circumstantial evidence in the record to determine whether the alien had sufficient knowledge that his conduct may have assisted acts of extrajudicial killing.

The full text of Matter of D-R- can be found here: 

https://www.justice.gov/sites/default/files/pages/attachments/2017/09/14/3902_0.pdf

BIA Affirms that California Robbery is a Theft-Related Aggravated Felony

The Board of Immigration Appeals (BIA) has again determined that a California robbery conviction is categorically a theft-related aggravated felony.  The respondent argued that section 211 is overbroad with respect to the Federal definition of theft because a “taking” under California law requires a perpetrator to carry property away (also known as “asportation”).  The BIA concluded that the definitions of both robbery in section 211 of the California Penal Code and aggravated felony theft in section 101(a)(43)(G) of the Act reach “takings” committed by gaining control over the property of another.  The only difference between the statutes is that section 211 criminalizes a narrower subset of “takings” within the broader universe of those encompassed by the generic offense.  The fact the statute could encompass aiding and abetting a robbery by carrying off property already stolen by the principal does not change the outcome, as aiders and abettors are held liable to the same extent as principals.  

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

https://www.justice.gov/eoir/page/file/995071/download

BIA Finds that Texas Pre-trial Intervention Program Constitutes a Conviction

The Board of Immigration Appeals (BIA) has determined that participation in a Texas pre-trial intervention program constitutes a conviction where the participant stipulated that he committed each charged offense.  The BIA determined that the participant had admitted sufficient facts to sustain a finding of guilt, and that the probation terms imposed as part of the intervention program were a restraint on the participant's liberty.  As such, participation in the program constituted a conviction.  

The full text of Matter of Mohamed can be found here:
https://www.justice.gov/eoir/page/file/994641/download

Ninth Circuit Interprets "Approvable When Filed" Standard for 245(i) Petitions

The Ninth Circuit has determined that USCIS may rely on the denial of a petition to find that the petition was not approvable when filed so long as the denial was on the merits, and not based on a procedural finding or based on circumstances that changed after the petition was filed.  Though USCIS is permitted to reevaluate the merits of a denied petition at the time an applicant is applying for adjustment of status, it is not required to do so.  

The full text of Hsiao v. Hazuda can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/01/15-55676.pdf

Tenth Circuit Finds that Applicant in Reinstatement Proceedings is not Eligible for Asylum

The Tenth Circuit has determined that an applicant in reinstatement proceedings is not eligible for asylum.  The applicant is only eligible to apply for withholding of removal and protection under the Convention Against Torture.

The full text of R-S-C- v. Sessions can be found here:

https://www.ca10.uscourts.gov/opinions/15/15-9572.pdf

Ninth Circuit Finds AZ Class 1 Misdemeanor Domestic Violence Conviction to be a Crime of Domestic Violence

The Ninth Circuit has determined that an Arizona conviction for a class one misdemeanor domestic violence offense is a crime of domestic violence.  The court found that the statute is overbroad because it includes “recklessly causing any physical injury to another person.”  However the court also determined that the statute is divisible.  Because the petitioner was convicted of a class 1 misdemeanor, the Court deduced that he was convicted of intentionally or knowingly causing physical injury, which meets the definition of a crime of violence.  Because the relationships in the statute are coextensive with those found in section 237(a)(2)(E)(i) of the INA, the petitioner's conviction qualifies as a crime of domestic violence.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/14/13-72185.pdf

Fifth Circuit Finds that Texas Evading Arrest Conviction is not Categorically a CIMT

The Fifth Circuit has determined that a Texas conviction for evading arrest is not categorically a crime involving moral turpitude.  The court found the statute to be divisible, but determined that only the prong criminalizing flight in a vehicle involves moral turpitude.  

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

http://www.ca5.uscourts.gov/opinions/pub/15/15-60722-CV0.pdf