Fourth Circuit Finds Applicant Established Persecution on of Family Ties

The Fourth Circuit has reaffirmed its family-based asylum case law.

"For three reasons, we are compelled to conclude that the IJ and the Board erred in finding that Salgado-Sosa has not shown that his kinship ties are at least one central reason for the harm he fears. First, the record manifestly establishes that MS-13 threatened Salgado-Sosa on account of his connection to his stepfather and to his family. Salgado-Sosa testified, for instance, that MS-13 attacked him because of his stepfather Merez-Merlo’s conflict with the gang, not his own. Merez-Merlo similarly testified that his refusal to give MS-13 what they wanted, which was the war tax, led the gang to repeatedly threaten to kill his wife and son. Other evidence also corroborates the centrality of family ties. For example, the family’s long-time neighbor submitted an affidavit averring that the reason why the gang members want to hurt Salgado-Sosa is that he defended his stepfather from the gang members when they assaulted the family."

"Second, that Salgado-Sosa’s anticipated harm is on account of membership in his family follows from the IJ’s own factual findings, adopted by the BIA. The IJ herself determined that the central reasons for Salgado-Sosa’s feared persecution are his stepfather’s refusal to pay the gang and revenge on the family for resisting MS-13’s extortion."  "There is no meaningful distinction between whether Salgado-Sosa was threatened because of his connection to his stepfather, and whether Salgado-Sosa was threatened because MS-13 sought revenge on him for an act committed by his stepfather."

"Third and finally, the BIA’s decision improperly focused on whether Salgado-Sosa’s family was persecuted on account of a protected ground, rather than on whether Salgado-Sosa was persecuted because of a protected ground – here, his relationship to his family. The critical fact, for the BIA, was that the motive for the attacks on Salgado- Sosa’s family was financial gain or personal vendettas, neither of which is itself a protected ground under the INA.  But as we have explained before, it does not follow that if Salgado-Sosa’s family members were not targeted based on some protected ground, then Salgado-Sosa could not have been targeted based on his ties to his family."

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

http://www.ca4.uscourts.gov/Opinions/161594.P.pdf

First Circuit Remands for BIA to Reexamine if MA Arson Conviction is a CIMT

The First Circuit has remanded a case to the Board of Immigration Appeals (BIA) to reconsider its finding that a Massachusetts arson conviction is categorically a crime involving moral turpitude.  The court noted that the statute includes burning one's own property.  The court also noted that Massachusetts law does not require evil intent nor a corrupt mindset for an arson conviction.

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

http://media.ca1.uscourts.gov/pdf.opinions/17-1310P-01A.pdf

Third Circuit Finds that Georgia Forgery Conviction is an Aggravated Felony

The Third Circuit has determined that Georgia's forgery statute, though not a perfect match to the generic definition of forgery, covers conduct with a sufficient logical connection to forgery to be deemed a crime related to forgery for aggravated felony purposes.  The court acknowledged that its decision creates a circuit split with the Ninth Circuit.

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

http://www2.ca3.uscourts.gov/opinarch/163816p.pdf

First Circuit Rejects Particular Social Group Comprised of "Guatemalan women who try to escape Systemic and Severe Violence but who are Unable to Receive Official Protection"

The First Circuit has rejected the proposed particular social group of "Guatemalan women who try to escape systemic and severe violence but who are unable to receive official protection."  The court found that the group was neither particularized nor socially distinct.

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

http://media.ca1.uscourts.gov/pdf.opinions/17-1803P-01A.pdf

First Circuit Denies Family-Based Asylum Case

The First Circuit has affirmed the denial of a family-based asylum case, in which the petitioner alleged she was extorted because her family ties to the father of her child.  The court, however, affirmed the agency's finding that all employees at the the partner's store (including the petitioner) were extorted, undermining the petitioner's assertion that she was actually targeted because of her family ties.

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

http://media.ca1.uscourts.gov/pdf.opinions/17-1201P-01A.pdf

BIA Addresses "Wave Through" Admissions and LPR Cancellation Eligibility

The Board of Immigration Appeals (BIA) has determined that in the Fifth and Ninth Circuits, a wave through admission qualifies as "an admission in any status" for the purposes of cancellation of removal for lawful permanent residents.  However, outside the Fifth and Ninth Circuits, applicants will need prove that they were admitted in a lawful status to meet the eligibility criteria for cancellation.  

The full text of Matter of Castillo Angulo can be found here:

https://www.justice.gov/file/1029381/download

BIA Addresses Formulation of Particular Social Groups

The Board of Immigration Appeals (BIA) has determined that when an asylum or withholding of removal applicant "raises membership in a particular social group as the enumerated ground that is the basis of her claim, she has the burden to clearly indicate the exact delineation of any particular social group(s) to which she claims to belong. While it is an applicant’s burden to specifically delineate her proposed social group, the Immigration Judge should ensure that the specific group being analyzed is included in his or her decision. If an applicant is not clear as to the exact delineation of the proposed social group, the Immigration Judge should seek clarification.”  The BIA suggested that a motion to remand based on the articulation of a new social group for the first time on appeal might be appropriate if it is based on new, previously unavailable material evidence.

The full text of Matter of W-Y-C- & H-O-B- can be found here:

https://www.justice.gov/eoir/page/file/1027451/download

BIA Addresses DUIs in the Context of Bond Proceedings

The Board of Immigration Appeals (BIA) has determined that driving under the influence is a significant adverse factor in bond proceedings.  Furthermore, family and community ties generally do not mitigate a bond applicant’s dangerousness.  The BIA did acknowledge that "there may be a situation where a family member’s or other’s influence over a young respondent’s conduct could affect the likelihood that he would engage in future dangerous activity."

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

https://www.justice.gov/eoir/page/file/1030706/download

Attorney General Certifies Case to Himself Regarding Administrative Closure

The Attorney General has certified Matter of Castro-Tum, an unpublished case dealing with the docket control mechanism known as administrative closure, to himself for review.  He also invited amicus briefs addressing the following questions:

1. Do Immigration Judges and the Board have the authority, under any statute, regulation, or delegation of authority from the Attorney General, to order administrative closure in a case? If so, do the Board’s decisions in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), articulate the appropriate standard for administrative closure?

2. If I determine that Immigration Judges and the Board currently lack the authority to order administrative closure, should I delegate such authority? Alternatively, if I determine that Immigration Judges and the Board currently possess the authority to order administrative closure, should I withdraw that authority?

3. The regulations governing removal proceedings were promulgated for “the expeditious, fair, and proper resolution of matters coming before Immigration Judges.” 8 C.F.R. § 1003.12 (2017). Are there any circumstances where a docket management device other than administrative closure—including a continuance for good cause shown (8 C.F.R. § 1003.29 (2017)), dismissal without prejudice (8 C.F.R. § 1239.2(c) (2017)), or termination without prejudice (8 C.F.R. § 1239.2(f))—would be inadequate to promote that objective? Should there be different legal consequences, such as eligibility to apply for a provisional waiver of certain grounds of inadmissibility under the immigration laws or for benefits under federal or state programs, where a case has been administratively closed rather than continued?

4. If I determine that Immigration Judges and the Board do not have the authority to order administrative closure, and that such a power is unwarranted or unavailable, what actions should be taken regarding cases that are already administratively closed?

The full text of Matter of Castro Tum can be found here:

https://www.justice.gov/eoir/page/file/1022366/download

Ninth Circuit Addresses Violation of Right to Counsel

The Ninth Circuit has determined that a petitioner who alleges a violation of his right to counsel must demonstrate that he was prejudiced by the violation.  The court declined to accord a presumption of prejudice in such a situation.  With respect to the petitioner, the court noted that "he might have been able to show prejudice had he attempted to contest the facts rendering him removable yet been foreclosed from doing so by virtue of his earlier un-counseled admissions. But he has never attempted to contest the charges against him, even after having an opportunity to consult with counsel, so he cannot contend that his un-counseled admissions cost him the chance to raise plausible grounds for contesting removal. Nor can he claim prejudice by virtue of his un-counseled waiver of the right to request withholding of removal, since he was ultimately given a reasonable fear interview and allowed to make the case that he should be granted withholding of removal."  

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/10/14-71747.pdf

Ninth Circuit Reverses Agency's Competency Finding

The Ninth Circuit has reversed the agency's finding that a detained immigrant was competent to participate in his immigration proceedings.  In particular, the Court expressed concern that the Department of Homeland Security did not provide updated or complete medical records to the Court.  

"Importantly, neither the IJ nor the BIA recognized that, as DHS was providing ongoing medical care to Calderon as a detainee, it necessarily possessed additional relevant, but not introduced, medical records. There were, indeed, specific indications that there were later medical records not provided to the IJ or the BIA that could have reflected a deterioration in Calderon’s condition."

"We note that, as Calderon argues, DHS may have violated an order implementing the permanent injunction in Franco-Gonzalez by failing to provide Calderon’s updated mental health information to the IJ and BIA.  However, because Calderon’s complete mental health information was not introduced into the record, we are unable to determine if Calderon was a member of the Franco-Gonzalez class, and thus cannot determine if the order was violated."

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/03/16-70225.pdf

Ninth Circuit Construes Adam Walsh Act

The Ninth Circuit has determined that the Adam Walsh Act, which prohibits certain US citizens who have been convicted of crimes against children from sponsoring their non-citizen relatives for immigration status, can be applied retroactively to petitions filed before the effective date of the Act, if the petitions were still pending when the Act came into effect.

The full text of Gebhardt v. Nielsen can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/09/15-56072.pdf

Eighth Circuit finds that Iowa Attempted Murder Conviction is a Crime of Violence

The Eighth Circuit has determined that an Iowa conviction for attempted murder is a crime of violence.  In so doing, the court rejected the defendant's argument that the statute, which criminalizes any act that the defendant believes will set into motion a chain of events causing the death of another, was overbroad because it encompassed acts of omission.  The court determined that even an act of omission under the statute involved the use of force.  Given the similarity between the definition of a crime of violence in the sentencing context and the immigration context, this decision could have persuasive value in the immigration context.

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

http://media.ca8.uscourts.gov/opndir/18/01/164039P.pdf

Eighth Circuit Finds that Minnesota Second and Third Degree Burglary are not Violent Felonies

The Eighth Circuit has determined that Minnesota's second- and third-degree burglary statutes are overbroad as compared to the generic definition of burglary because they do not require the defendant to have the intent to commit a crime at the moment of the unprivileged entry.  The court also determined that the statutes are indivisible.  Given the similarity between the generic definition of burglary in the criminal and immigration contexts, this decision could have persuasive value in the immigration context.

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

http://media.ca8.uscourts.gov/opndir/18/01/164308P.pdf

Eighth Circuit Reaffirms that Missouri Second-Degree Assault Statute is Divisible

The Eighth Circuit has reaffirmed that Missouri's second-degree assault statute is divisible, even in light of the Supreme Court's decision in Mathis v. United States.

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

http://media.ca8.uscourts.gov/opndir/18/01/164163P.pdf

BIA Declines to Apply Res Judicata; Deems MI Conviction for First Degree Home Invasion to be Burglary Aggravated Felony

The Board of Immigration Appeals (Board) has determined that the doctrine of res judicata does not prevent the Department of Homeland Security (DHS) from bringing a new removable proceeding (with a new charge of removability) based on a criminal conviction that did not sustain the charge of removability in a prior proceedings.  In the instant case, the DHS had initially charged the respondent with a conviction for a crime of violence aggravated felony based on a Michigan conviction for first-degree home invasion.  Due to intervening case law regarding the definition of a crime of violence, those proceedings were terminated.  The DHS then re-charged the respondent with a burglary aggravated felony based on the same conviction.  The Board determined that res judicata did not bar the second proceedings, though it also recognized that its decision was in conflict with Ninth Circuit jurisprudence.  The Board also determined that a Michigan conviction for first-degree home invasion is categorically a burglary aggravated felony.

The full text of Matter of Jasso Arangure can be found here:

https://www.justice.gov/eoir/page/file/1021376/download

Ninth Circuit Finds that Protest of Eminent Domain is a form of Political Opinion

The Ninth Circuit has determined that a man who protested the Chinese government's eminent domain policy, and who was, as a result, beaten and accused of being anti-government, was persecuted on account of his political opinion.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/18/14-71113.pdf

An amended opinion was subsequently filed and can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/02/15/14-71113.pdf

Ninth Circuit Finds that Carjacking Conviction is a Crime of Violence

The Ninth Circuit has determined that a federal conviction for carjacking is a crime of violence under the federal sentencing guidelines.  "To be guilty of carjacking 'by intimidation,' the defendant must take a motor vehicle through conduct that would put an ordinary, reasonable person in fear of bodily harm, which necessarily entails the threatened use of violent physical force.  It is particularly clear that 'intimidation' in the federal carjacking statute requires a contemporaneous threat to use force that satisfies Johnson because the statute requires that the defendant act with “the intent to cause death or serious bodily harm.'”

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/12/16-35583.pdf

Ninth Circuit Finds that WA Harassment Conviction is Crime of Violence under Sentencing Guidelines

The Ninth Circuit evaluated the sentencing implications of a Washington conviction for harassment.  The court determined that the "harassment statute as a whole is not categorically a crime of violence under § 4B1.2(a)(1), but felony harassment under § 9A.46.020(2)(b)(ii) is divisible from the harassment statute generally. Washington courts have made clear that felony harassment under § 9A.46.020(2)(b)(ii) is a separate crime that requires a unanimous jury to find a threat to kill beyond a reasonable doubt."  The court concluded that "[a] knowing threat of intent to cause bodily injury plainly requires a sufficient mens rea to constitute a threatened use of physical force." 

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/13/16-30181.pdf

Eighth Circuit Finds that MN Misdemeanor Domestic Assault is a Crime of Domestic Violence

The Eighth Circuit has determined that a Minnesota misdemeanor conviction for domestic assault is a crime of domestic violence under section 237(a)(2)(E)(i) of the INA.  The court noted that it had previously held that a conviction under this statute qualified as a violent felony under the Armed Career Criminal Act, which has an almost identical definition as a crime of violence.  Thus, the conviction disqualified the petition from seeking cancellation of removal for non-lawful permanent residents.

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

http://media.ca8.uscourts.gov/opndir/17/12/164014P.pdf

In a second case, the court determined that subsection 2 of the statute is also a crime of domestic violence.

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

http://media.ca8.uscourts.gov/opndir/17/12/162164P.pdf