Ninth Circuit Rejects Void for Vagueness Challenge to CIMTs

The Ninth Circuit has rejected a void-for-vagueness challenge to the phrase "crime involving moral turpitude."  The Court deemed itself bound by the Supreme Court's decision in Jordan v. DeGeorge, though it recognized that "later Supreme Court cases cast some doubt on its general reasoning."  The Court rejected the Government's argument that the void-for-vagueness doctrine cannot apply to any ground of inadmissibility.  

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/17/15-70759.pdf

Ninth Circuit Addresses Scope of Remand from BIA

The Ninth Circuit has affirmed that on remand from the BIA to the IJ, the BIA only retains jurisdiction if it does two things: (1) expressly retains jurisdiction, and (2) qualifies or limits the scope of remand.  If the BIA fails to do either of these things, the scope of the remand is general and the IJ may reconsider any of his or her prior decisions.  In the instant case, the BIA remanded for the IJ to consider protection under the Convention Against Torture, but did not state anything about retaining jurisdiction.  On remand, the IJ reversed his previous denial of asylum.  The BIA reversed, stating the IJ had exceeded the scope of remand.  Ultimately, the case reached the Ninth Circuit, who disagreed that the IJ had exceeded the scope of the BIA's remand order.  The court emphasized that the "BIA only retains jurisdiction when remanding to an IJ if its remand order expressly retains jurisdiction and qualifies or limits the scope of remand to a specific purpose."  Though the BIA limited the scope of remand to a specific purpose in this case by stating that it was remanding “for further consideration of the respondent’s claim under the Convention Against Torture,” its remand order nowhere mentioned jurisdiction, much less expressly retained it.  Thus, the IJ had the authority to reconsider his decision.

The full text of Bermudez-Ariza v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/25/15-72572.pdf

Eighth Circuit Finds Missouri Drug Statutes Divisble

The Eighth Circuit, in a pair of decisions addressing Missouri convictions for possession of a controlled substance and possession of a controlled substance with intent to deliver, has determined that Missouri's drug statutes are divisible and that the identity of the drug is an element of these statutes.  As such, the modified categorical approach can be employed to determine the identity of the substance.  

The decision in Bueno-Muela v. Sessions can be found here: 

http://media.ca8.uscourts.gov/opndir/18/06/171267P.pdf

The decision in Lemus Martinez v. Sessions can be found here:

http://media.ca8.uscourts.gov/opndir/18/06/164242P.pdf

Eighth Circuit Finds that MN Second Degree Assault is Violent Felony

The Eighth Circuit has determined that a Minnesota conviction for second-degree assault is a violent felony even though the statute does not require the defendant to cause actual bodily harm but only fear of bodily harm.  The Court also rejected a void-for-vagueness challenge to the force clause of the Armed Career Criminal Act.

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

http://media.ca8.uscourts.gov/opndir/18/07/171527P.pdf

Eighth Circuit Finds that Iowa Domestic Abuse Assault is a Crime of Violence

The Eighth Circuit determined that Iowa's domestic abuse assault statute is divisible between assault with a dangerous weapon and assault with intent to inflict serious injury.  It further determined that assault is divided into three subsections: 1) assault intended to cause pain or injury; 2) assault intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive; and 3) assault involving a firearm.  Assault with intent to inflict serious injury under the first definition of assault qualifies as a crime of violence.

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

http://media.ca8.uscourts.gov/opndir/18/07/171274P.pdf

Eighth Circuit Deems MN 3rd Degree Assault a Violent Felony

The Eighth Circuit has determined that a Minnesota conviction for third-degree assault qualifies as a violent felony because it requires the use, attempted use, or threatened use of force capable of causing physical pain or injury.  

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

http://media.ca8.uscourts.gov/opndir/18/07/172131P.pdf

Seventh Circuit Addresses Prejudice Standard for Ineffective Assistance of Counsel

The Seventh Circuit reversed the denial of a motion to reopen based on ineffective assistance of counsel.  The BIA indicated that the evidence presented in support of the IAC claim was not likely to have changed the outcome of the case.  The Seventh Circuit that the BIA erroneously applied a standard of probability, rather than possibility.  "The Board’s 'would likely have altered the outcome' language suggests that it was requiring Sanchez to show it was more likely than not (i.e., a probability of more than 50 percent) that the outcome of the removal proceeding would have been favorable to Sanchez but for his counsel’s alleged missteps. But in actuality, Sanchez needed only to establish that he would have had a reasonable chance of prevailing had his counsel provided him with competent representation."  

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-05/C:17-1673:J:Rovner:aut:T:fnOp:N:2181672:S:0

Seventh Circuit Addresses District Court Jurisdiction to Review Denied Affirmative Asylum

The Seventh Circuit has reviewed an Administrative Procedures Act challenge to a denial of asylum by the Asylum Office.  In this case, the petitioner was in valid TPS status at the time of the adjudication of his asylum application, and as such, he was not placed in removal proceedings by the Department of Homeland Security, and could not renew his asylum application before an Immigration Judge.  The Seventh Circuit held that the District Court was not barred by any jurisdiction-stripping statute from taking jurisdiction over the challenge.  Nevertheless, because the petitioner could ultimately seek review of his asylum application through an Immigration Court proceeding (should the Department of Homeland Security place him in removal proceedings), the decision of the asylum office is not a final agency action.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-13/C:17-3377:J:Ripple:aut:T:fnOp:N:2185998:S:0

Fifth Circuit Discusses Standard of Review for IAC and Equitable Tolling

The Fifth Circuit has determined that a request for equitable tolling, insofar as it is related to a claim of ineffective assistance of counsel, is a question of law over which it has jurisdiction even if a petitioner has been convicted of a controlled substance violation.  The Court noted that "[w]e assume that a valid claim of IAC would constitute an 'extraordinary circumstance [that] stood in his way and prevented timely filing.'”  

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

http://www.ca5.uscourts.gov/opinions/pub/17/17-60230-CV0.pdf

Fourth Circuit Finds that Court Costs are not Punishment

The Fourth Circuit has determined that a "prayer for judgment" in North Carolina, when accompanied only by an order to pay court costs, does not constitute a conviction for immigration purposes because these court costs do not constitute a punishment or penalty.  "Because a punishment or penalty must be proportionate to a defendant’s wrongdoing, courts generally refuse to treat a monetary assessment as a punishment or penalty when the assessment solely reflects the costs of compensating a private party or the government for losses resulting from the wrongdoing."  Congress intended the words "penalty" and "punishment" in the definition of a conviction to refer to "discretionary acts of judgment as opposed to the broader set of ministerial or administrative decrees or assessments a court may impose."  "This requires a judge to order a punitive sanction—i.e., one that is intended to discipline or deter and is proportionate to the underlying offense conduct."

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

http://www.ca4.uscourts.gov/Opinions/171519.P.pdf

Second Circuit finds that NY Conviction for Sale of Marijuana in the Third Degree is not Categorically an Aggravated Felony

The Second Circuit has determined that the minimum conduct punishable under New York's sale of marijuana in the third degree statute is distribution of less than an ounce of marijuana for no remuneration.  As such, it includes conduct that is punishable as a misdemeanor in the federal Controlled Substances Act, and cannot be a categorical match to the definition of a drug trafficking aggravated felony.  In interpreting the Supreme Court's decision in Moncrieffe, the Court determined that one ounce (or roughly 30 grams) of marijuana qualified as a "small amount."  The court re-affirmed that when the plain language of the statute includes conduct outside the generic definition of the ground of removability, the petitioner need not show that there is a realistic probability that the state actually prosecutes this conduct.  

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

http://www.ca2.uscourts.gov/decisions/isysquery/cb3c45a2-99de-4595-91ff-493388225f36/1/doc/17-1567_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/cb3c45a2-99de-4595-91ff-493388225f36/1/hilite/

First Circuit Reverses BIA's Determination that IJ Made Clearly Erroneous Factual Finding

The First Circuit applied a de novo review to the BIA's determination that the IJ clearly erred when he determined that the Mexican government was unable or unwilling to protect the petitioner from organized crime members.  The Court reversed the BIA's determination because it conflated the issue of the police's willingness to investigate the crime with their ability to actually protect the petitioner from harm.  The IJ focused heavily on the country conditions evidence that police in Guerrero are overwhelmed by organized crime, and the First Circuit cited this analysis approvingly. 

The full text of Justo v. Sessions can be found here: http://media.ca1.uscourts.gov/pdf.opinions/17-1457P-01A.pdf

Ninth Circuit Addresses Nevada Convictions for Robbery, Coercion Assault with a Deadly Weapon

The Ninth Circuit has determined that a Nevada conviction for assault with a deadly weapon qualifies as a crime of violence under the federal sentencing guidelines because it requires that the defendant placed the victim in fear of bodily harm and thus necessarily entails the use or threatened use of violent physical force against the person of another.  "A defendant cannot put a reasonable person in fear of bodily harm without threatening to use ‘force capable of causing physical pain or injury.'  When the defendant puts the victim in fear of bodily harm through the use or threatened use of a deadly weapon, the violent nature of the force employed is even more apparent."

The court further determined that a Nevada conviction for robbery is not a crime of violence under the sentencing guidelines because it can be accomplished by instilling fear of injury to property alone.

Finally, the court determined that a Nevada conviction for coercion does not meet the definition of a crime of violence under the sentencing guidelines because the force required is not the violent force required for a crime of violence.  In addition, the Nevada Supreme Court has upheld convictions for felony coercion that involved the use or threatened use of physical force against an object, rather than against a person

Given the similarity in the definition of a crime of violence under the sentencing guidelines and in the immigration context, this decision could have persuasive impact in the immigration context.  However, it is noteworthy that the definition of a crime of violence in the immigration context includes the use or threatened use of violence against the property of another, and thus, the rationale for why the Nevada robbery conviction does not qualify as a crime of violence under the sentencing guidelines may not carry over into the immigration context.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/08/16-10457.pdf

Supreme Court Narrows Stop-Time Rule for Cancellation of Removal

The Supreme Court has determined that a Notice to Appear that lacks the time and date of the first removal hearing on it does not trigger the stop-time rule, and thus, does not stop the accrual of continuous physical presence for the purpose of cancellation of removal for non-lawful permanent residents.

The decision in Pereira v. Sessions can be found here:

https://www.supremecourt.gov/opinions/17pdf/17-459_1o13.pdf

Eleventh Circuit Finds that IJs have the Authority to Grant U Visa Waivers

The Eleventh Circuit has determined that Immigration Judges explicitly have the authority to grant waivers of inadmissibility in conjunction with U visas under section 212(d)(3) of the INA.  In so doing, the Court joins the Seventh Circuit, and breaks with the Third Circuit and the Board of Immigration Appeals.

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

http://media.ca11.uscourts.gov/opinions/pub/files/201514569.pdf

Tenth Circuit finds that WY Third Degree Sexual of a Minor is Aggravated Felony

The Tenth Circuit has determined that a Wyoming conviction for third degree sexual abuse of a minor is a sexual abuse of a minor aggravated felony.  The court rejected the petitioner's argument that his conviction must require knowledge of the victim's age or require an element of “actual abuse,” such as an age gap of more than five years, a lack of consent, a relationship with a power imbalance, or exploitation.

The full text of Bedolla-Zarate v. Sessions can be found here:

https://www.ca10.uscourts.gov/opinions/17/17-9519.pdf

Tenth Circuit Finds that CO Trespass Statute is Indivisible and not a CIMT

The Tenth Circuit has determined that a Colorado conviction for first degree criminal trespass is not a crime involving moral turpitude, and that the specific crime the defendant intends to commit during the trespass is not an element of the offense.  In so doing, it overruled its prior precedent to the contrary.

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

https://www.ca10.uscourts.gov/opinions/16/16-9555.pdf

Ninth Circuit Construes Corroboration Requirements

The Ninth Circuit has determined that a general advisement that corroborating evidence is required is sufficient to comply with the requirements of Ren v. Holder.  "Where, as here, an IJ gives notice that an asylum-seeker’s testimony will not be sufficient and gives the petitioner adequate time to gather corroborating evidence, and the petitioner then provides no meaningful corroboration or an explanation for its absence, the IJ may deny the application for asylum. Importantly, Liu knew that corroboration was necessary, but failed to present meaningful corroboration for his factual contentions. Liu’s failure to provide corroborating evidence was not a consequence of a lack of specificity in the notice given by the IJ."

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/01/12-74077.pdf

Ninth Circuit Finds that WA Assault of a Child in the Third Degree is an Aggravated Felony

The Ninth Circuit has determined that Washington conviction for assault of a child in the third degree, with a special allegation that the crime was committed with sexual motivation, qualifies as a sexual abuse of a minor aggravated felony.  The special allegation had to be charged in the information and admitted by the defendant or proved to a jury beyond a reasonable doubt, and it led to an increase in the defendant's sentence.  As such, the court determined that it was an element of the petitioner's offense. 

Because the offense was committed for the purpose of sexual gratification, it necessarily involved “sexual conduct.”  

The full text of Quintero-Cisneros v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/13-72632.pdf

Seventh Circuit Addresses Reinstatement Provision

The Seventh Circuit has rejected a challenge to a reinstatement.  The petitioner argued that he did not "illegally" reenter the United States after deportation because he was waved into the United States, a situation recognized by the Board of Immigration Appeals as a procedurally regular entry.  The court disagreed, finding that the petitioner's substantive illegal (albeit procedurally regular) entry still triggered the reinstatement provision.  

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D05-31/C:16-3568:J:Rovner:aut:T:fnOp:N:2163615:S:0