Ninth Circuit Invalidates Illegal Reentry Conviction

Ochoa-Oregel (Defendant) unlawfully entered the United States in 2016 and was convicted of unlawful reentry in violation of 8 U.S.C. § 1326. Before his 2016 conviction for unlawful re-entry, Defendant had previously been ordered removed in 2008, based on a prior conviction for California domestic violence battery, Cal. Penal Code § 243(e)(1), in an in absentia proceeding. The government contends that Defendant lost his status as a legal permanent resident as a result of the 2008 removal. Defendant was again removed in 2011 in an expedited removal proceeding.

At the time of Defendant’s 2008 hearing before the immigration judge, the Ninth Circuit's precedent had established that California battery was not a categorical crime of violence. It was error to remove Defendant for a crime of domestic violence based on his California battery conviction. The 2008 in absentia removal cannot properly serve as a predicate for a conviction for illegal re-entry.

The 2011 removal order also cannot serve as a predicate for unlawful re-entry.  Defendant was stripped of the important legal entitlements that come with lawful permanent resident status through the legally erroneous decision that he had no opportunity to contest in 2008.  Among those protections is that lawful permanent residents cannot be removed on an expedited basis.  This means that the 2011 expedited removal order was also fundamentally unfair because it violated the process due to lawful permanent residents.

The Court emphasized that We emphasize that its "holding here is limited to the case where an alien is erroneously removed in absentia and did not have a meaningful opportunity to contest the order that ostensibly stripped him or her of lawful permanent resident status. We express no view about the effect of an order of removal that while legally erroneous was entered after an alien had a meaningful opportunity to contest removal."

The full text of Ochoa-Oregel v. United States can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/02/16-50413.pdf

Ninth Circuit finds that Prohibition on Religious Practice is Persecution

The Ninth Circuit has determined that a petitioner who was prohibited from attending his house church suffered past persecution.  "By forbidding Petitioner from attending his home church, the Chinese police prevented him from practicing his faith and did so through coercive means. The harm Petitioner suffered was therefore ongoing and, under our asylum precedent, compelled a finding of past persecution."  Specifically, the Court noted that "the police here actively ensured that Petitioner could not practice his faith, forcing him and fellow congregants to report to the police station weekly and threatening him with arrest for noncompliance."

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/30/15-70617.pdf

Ninth Circuit Discusses Consular Nonreviewability Doctrine

The Ninth Circuit has held that the consular nonreviewability doctrine does not impact a federal court's subject matter jurisdiction to hear a challenge to a visa denial.  The court concluded, however, that the APA provides no avenue for review of a consular officer’s adjudication of a visa on the merits.  The consular officer need only provide a facially legitimate and bona fide reasons for rejecting a visa application.

The full text of Allen v. Milas can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/24/16-15728.pdf

Ninth Circuit Applies Exclusionary Rule to OCAHO Proceedings

Frimmel was the owner of several restaurants in Arizona, which were the targets of raids by the Maricopa County Sheriff's Office (MCSO) that were conducted in violation of the Fourth Amendment.  MCSO then shared information with ICE, who began an investigation into Frimmel's employment of immigrants who did not have employment authorization.  Frimmel moved to suppress the documents obtained by ICE before the Office of the Chief Administrative Hearing Officer (OCAHO), but his request was denied.  The Arizona state court, in the meantime, suppressed the evidence obtained by the MCSO in the state criminal proceedings brought against Frimmel, finding multiple defects in the warrant used to conduct the search.

The Court determined that the MCSO's conduct was an egregious violation of the Fourth Amendment.  Moreover, the Court found that ICE's evidence was fruit of the illegal search by MCSO, and that there was not sufficient attenuation between ICE obtaining the evidence and the illegal search.  Finally, the Court determined that MSCO had immigration enforcement in mind when it conducted its unlawful raids, and thus, application of the exclusionary rule would have proper deterrent effect.  As such, the Court reversed the administrative law judge's determination that the evidence obtained by ICE should not be suppressed in the OCAHO proceeding.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/26/16-73906.pdf

Ninth Circuit finds that CA Felony Child Endangerment Conviction is Crime of Child Abuse

The Ninth Circuit has determined that a California felony conviction for child endangerment is a crime of child abuse.  In so doing, the Court deferred to the Board of Immigration Appeals' definition of a crime of child abuse, as outlined in Matter of Velazquez-Herrera and Matter of Soram.  The Court also rejected the petitioner's argument that the decision in Soram should not be applied retroactively to his conviction, finding that Soram was not a departure from prior agency precedent, but rather filled a void in unsettled law.  Judge Wardlaw wrote a lengthy dissent, arguing that the definition of a crime of child abuse in Soram is not entitled to deference, and that even if it is, it should not apply retroactively to the petitioner.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/23/14-71742.pdf

Eighth Circuit Rejects Defense to Unlawful Voting

The petitioner, when obtaining a driver's license in Minnesota, did not attest to being a US citizen, but nevertheless, was registered to vote by the state and mailed a voter registration card.  The petitioner subsequently voted in an election.  In subsequent removal proceedings, she was deemed inadmissible for her unlawful voting, and her application for adjustment of status was denied.  The Court rejected her invocation of the defense of "entrapment by estoppel."  The Court noted that the sign in logs at the voting booths required the person to affirm that they are a US citizen.  

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

http://media.ca8.uscourts.gov/opndir/18/07/171400P.pdf

Eighth Circuit Finds that Arkansas Convictions are Violent Felonies

The Eighth Circuit determined that the Arkansas statute criminalizing terroristic threats is divisible between making threats against a person and making threats against property, and then determined that the petitioner's conviction for threatening his girlfriend qualified as a violent felony under the Armed Career Criminal Act (ACCA).  In addition, a second-degree battery conviction, under the non-deadly weapon subsection, qualifies as a violent felony because it requires the infliction of serious physical injury, thus mandating the use of physical force.  Given the similar definitions of a violent felony under the ACCA and the definition of a crime of violence in the immigration context, this decision could have persuasive value in the immigration context.

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

http://media.ca8.uscourts.gov/opndir/18/07/172415P.pdf

Eighth Circuit finds that Iowa Minutes of Evidence are not Shepard Documents

The Eighth Circuit has determined that Iowa minutes of evidence are not sufficiently reliable documents to be admitted under the Supreme Court's decision in Shepard v. United States.  Thus, a court may not consider the minutes of evidence as part of the modified categorical approach, unless the defendant expressly admits to the contents of the minutes as part of the plea proceeding.

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

http://media.ca8.uscourts.gov/opndir/18/07/171850P.pdf

Eighth Circuit Remands Children's Asylum Applications

The Eighth Circuit remanded the asylum applications of two minor children who were in removal proceedings with their mother because the agency failed to independently address the merits of their asylum applications.

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

http://media.ca8.uscourts.gov/opndir/18/08/171123P.pdf

Eighth Circuit Remands Appeal of Motion to Reopen

The Eighth Circuit has remanded a motion to reopen filed by an asylum seeker who was forced to leave the United States to seek emergency medical treatment, and who missed her removal hearing as a result.  The Court found that the Board of Immigration Appeals failed to determine if the emergency medical procedure qualified as an exceptional circumstance justifying her failure to appeal, and also declined to find that the applicant had necessarily abandoned her asylum application.

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

http://media.ca8.uscourts.gov/opndir/18/08/171584P.pdf

Seventh Circuit finds that BIA does not have Authority to Issue Removal Order in the First Instance

The Seventh Circuit has determined that the Board of Immigration Appeals does not have the authority to issue a removal order in the first instance.  Thus, where the Immigration Judge determined that the petitioner was not removable, and the Board disagreed, the entry of a removal order by the Board was ultra vires.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-31/C:17-1253:J:Sykes:aut:T:fnOp:N:2195397:S:0

Sixth Circuit Reverses Discretionary Denials of Asylum and 237(a)(1)(H) Waiver

The Sixth Circuit reversed the BIA's discretionary denial of asylum because it was inconsistent with the Board's precedent in Matter of Pula.  The BIA denied asylum as a matter of discretion solely because the applicant had used a stolen passport to enter the country, but Pula states that asylum may not be denied as a matter of discretion based solely on the applicant's circumvention of proper immigration procedures.  In addition, the BIA acknowledged that it is more likely than not that the petitioner would face harm due to his religion if returned to Syria.  According to its own precedent, this should “outweigh all but the most egregious adverse factors.”  The irregular entry cannot be deemed such an egregious adverse factor.  Thus, the denial of asylum on discretionary grounds was also inconsistent with this BIA precedent.  

With respect to the waiver, the Court found that the BIA applied the wrong standard of review to the IJ's factual findings, engaging in a de novo review instead of a clearly erroneous standard.

The Court found the petitioner statutorily eligible for the waiver, too.  The Government argued that because the petitioner was inadmissible at the time of his admission as a nonimmigrant as well as at the time of his adjustment of status.  The waiver could cure his inadmissibility at the time of his adjustment only.  However, the language of the waiver indicates that "a petitioner who is eligible for a waiver of removal is 'also' eligible for a 'waive[r] [of] removal based on the grounds of inadmissibility directly resulting from [the relevant] fraud or misrepresentation.'  "The provision thus contemplates circumstances where an already admitted alien seeks to cure a prior misrepresentation."

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

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0154p-06.pdf

Fifth Circuit Reverses Internal Relocation Finding

The Fifth Circuit has reversed a finding by the agency that an asylum applicant who had experienced past persecution could safely relocate within India.  "Before discussing the record evidence, we first note that the DHS produced no evidence on this issue despite the fact that it bore the burden of proof."  Reliance solely on the general reports submitted by the petitioner was insufficient to demonstrate that there is “a specific area of the country” where the petitioner does not have a well-founded fear of persecution.

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

http://www.ca5.uscourts.gov/opinions/pub/17/17-60320-CV0.pdf

Fifth Circuit Upholds Denial of SIJS Petitions

The Fifth Circuit has upheld the denial of SIJS petitions by USCIS, finding that the Texas state court orders for child support for individuals over the age of 18 were not the equivalent of the necessary “care and custody” rulings required for SIJ status. 

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

http://www.ca5.uscourts.gov/opinions/pub/16/16-51449-CV0.pdf

Fourth Circuit Finds New Jersey Conspiracy Conviction to be Controlled Substance Offense

The Fourth Circuit, applying Matter of Beltran, has found that a New Jersey conviction for conspiracy is a controlled substance violation.  The Court rejected that argument that a conspiracy charge must be analyzed under the categorical approach in the same way as any other conviction, because inchoate crimes suggest the commission of another offense.  Instead, the Immigration Court may consult the record of conviction to determine what was the object of the conspiracy.  In the instant case, the indictment indicated that the petitioner was conviction of conspiracy to distribute marijuana.  As such, his conviction qualifies as a controlled substance offense.

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

http://www.ca4.uscourts.gov/opinions/171213.P.pdf

Third Circuit Addresses Jurisdiction over Denied Nationality Claim

The Third Circuit has determined that when a Circuit Court transfers a nationality claim to a District Court, and the District Court denies that claim, the Circuit Court that typically hears appeals from that District Court has jurisdiction over the appeal of the denied nationality claim, not the Circuit Court which initiated the transfer.

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

http://www2.ca3.uscourts.gov/opinarch/163182p.pdf

Third Circuit Finds that Making a False Report in Connection with a Commodities Transaction is not Fraud-Related Aggravated Felony

Wang pleaded guilty to violating the Commodity Exchange Act by Making a False Report in Connection with a Commodities Transaction in violation of 7 U.S.C. § 6b(a)(1)(B).  The statute rendered it unlawful to "willfully [] make or cause to be made to the other person any false report or statement or willfully to enter or cause to be entered for the other person any false record.”  Wang was ordered deported as a non-citizen convicted of a crime of fraud or deceit results in the loss of more than $10,000 to the victim.   He challenged this finding on the ground that the statute does not require the false report or statement to be material, a necessity for the conviction to qualify as a crime of deceit or fraud.  

The Third Circuit agreed that the term “false statement” does not have a settled common law meaning and “does not imply a materiality requirement."  "The words of the statute do not give us any basis to conclude that materiality is a required element of the offense. Accordingly, for all of these reasons, we will hold that the Board erred by concluding Section 6b(a)(1)(B) requires evidence of materiality."  

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

http://www2.ca3.uscourts.gov/opinarch/164316p.pdf

Second Circuit Addresses Motion to Suppress

The Second Circuit granted a petition for review of a denied motion to suppress, finding that the facts in the record were sufficient to warrant a full hearing on the motion.

"First, the facts set forth in the Form I‐213s and affidavits, if true, show that the troopers and Border Patrol agents went to the house because they were looking for 'known Hispanic migrants.'  The forms say as much.  Even assuming the suspected presence of a fugitive was a reason for the search, the forms suggest that the presence of 'known Hispanic migrants' was also a purpose.  The forms do not, however, identify any specific or articulable facts to believe that anyone in the house ‐‐ other than the suspected fugitive ‐‐ had committed a crime.  Moreover, petitionersʹ affidavits establish that they were questioned only after the troopers had determined that the suspected fugitive was not present; the Government has offered no explanation as to why the agents decided at that point to ask petitioners about their country of citizenship and immigration status ‐‐ other than that the agents were looking for 'Hispanic migrants.'  Hence, petitioners presented substantial evidence that the search was improperly based on race."

"DHS did not provide a copy of the warrant.  The Form I‐213s refer only to a 'felony search warrant,' without specifying where and when it was issued, and without revealing its terms and scope.  The Form I‐213s seem to suggest that the warrant was issued in part because of the suspected presence of 'known Hispanic migrants' in the residence.  If that is the case, we have serious doubts as to the sufficiency of the application for the warrant.  And it is unclear why, if the purpose was to apprehend a fugitive, a 'felony search warrant' was issued rather than an arrest warrant.  Petitioners have also raised a fair question as to whether the real purpose of the search was not to locate a fugitive but to apprehend 'known Hispanic migrants.'  The state troopers were accompanied by not one, but two Border Patrol agents.  While the Form I‐213s state that the agents were present to provide 'translation assistance,' it seems odd that the state troopers did not have their own interpreters and instead imposed on two agents from another, federal, law enforcement agency to provide translation services for one suspected fugitive.  These facts support the notion that law enforcement was targeting Hispanic migrant workers from the start."

The full text of Zuniga-Perez and Hernandez-Campo v. Sessions can be found here:

http://www.ca2.uscourts.gov/decisions/isysquery/5dafcff5-8d16-4520-b439-ae3a0a9c81fe/20/doc/17-996_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5dafcff5-8d16-4520-b439-ae3a0a9c81fe/20/hilite/   

CA Appeals Court Rejects IAC Claim

A California appellate court has found that trial counsel fulfilled his duty to advise the defendant of the immigration consequences of his conviction by providing a boilerplate advisal that mirrors the advisals in section 1016.5 of the California Penal Code.  In addition, the court found that the defendant could not prevail on his argument that counsel failed to negotiate an immigration-neutral disposition because he did not, in his moving papers, identify any immigration-neutral disposition.

The full text of People v. Olvera can be found here:

http://www.courts.ca.gov/opinions/documents/B281767.PDF

BIA Addresses Duress Defense to Persecution of Others

The BIA has determined that an applicant who is subject to being barred from establishing eligibility for asylum or withholding of removal based on the persecution of others may claim a duress defense.  The requirements for the defense are: (1) the applicant acted under an imminent threat of death or serious bodily injury to himself or others; (2) he reasonably believed that the threatened harm would be carried out unless he acted or refrained from acting; (3) he had no reasonable opportunity to escape or otherwise frustrate the threat; (4) he did not place himself in a situation in which he knew or reasonably should have known that he would likely be forced to act or refrain from acting; and (5) he knew or reasonably should have known that the harm he inflicted was not greater than the threatened harm to himself or others.  The initial burden is on the DHS to show evidence that indicates that the alien assisted or otherwise participated in persecution.  Once the DHS meets its burden, the burden shifts to the alien to show by a preponderance of the evidence that the persecutor bar does not apply either because he did not engage in persecution or because he acted under duress.

Regarding the DHS’s initial burden of proof to show that the alien assisted or otherwise participated in persecution, an adjudicator must assess:  (1) the nexus between the alien’s role, acts, or inaction and the persecution; and (2) the alien’s scienter, meaning his prior or contemporaneous knowledge of the persecution.  

In the instant case, the BIA determined that neither the applicant's forced conscription nor his assignment to guard duty meet the high standard for a duress defense.  "The applicant testified that when he disobeyed orders to render assistance to prisoners, he received verbal reprimands from his superiors. Thus, the threats of death he received should he disobey orders, when viewed in context, did not constitute the imminent threat of death or serious bodily injury required to meet the standard of duress."  The BIA also determined that the applicant had the opportunity to escape before committing the acts of persecution.  "The applicant testified that he could not leave the military base, but he eventually escaped through a weak spot' and walked through the jungle to his friend’s home."  

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

https://www.justice.gov/eoir/page/file/1075801/download