Fifth Circuit Prohibits Use of Convictions Entered after Naturalization as Basis for Removal

Okpala was a naturalized US citizen when he was convicted of various drug offense. He was subsequently denaturalized, and the Department of Homeland Security sought to use the drug convictions as a basis for removing him. The Fifth Circuit reversed, finding that the convictions were entered while Okpala was a US citizen, and as such, could not be used as predicate offenses to remove him. The court focused on the language of the aggravated felony statute as requiring “an alien” to be convicted after admission..

The full text of Okpala v. Whitaker can be found here:

http://www.ca5.uscourts.gov/opinions/pub/17/17-60391-CV0.pdf

Third Circuit Examines New Jersey Drug Trafficking Convictions

The Third Circuit has determined that a New Jersey convictions for possessing cocaine with intent to distribute, distributing cocaine, and conspiring to possess cocaine with intent to distribute all qualify as drug trafficking aggravated felonies. In so doing, the court held that New Jersey attempt law is coextensive with federal law in that both require a substantial step that strongly corroborates the actor’s criminal purpose, and both hold that solicitation can count as a substantial step. The court recognized that its decision created a circuit split with the Ninth Circuit on the definition of attempt under the Controlled Substances Act.

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

https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1827&context=thirdcircuit_2018

Third Circuit Requires Notice and an Opportunity to Present Corroboration

The Third Circuit has reaffirmed that an applicant for asylum, withholding of removal, and/or protection under the Convention Against Torture must be given notice of corroborating documentation required and the opportunity to present it. The court came to this conclusion, despite the contrary conclusion reached by the Board of Immigration Appeals in Matter of L-A-C-.

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

https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1785&context=thirdcircuit_2018

Second Circuit Addresses Citizenship

Jaen was born on May 12, 1972 in Panama. At the time of Jaen’s birth, his mother, Leticia Rogers Boreland, was married to U.S.-citizen named Jorge Boreland. Jaen’s Panamanian birth certificate, however, lists Liberato Jaen as his father, a man with whom Leticia had an extramarital relationship during her marriage to Jorge. the sole question presented in this appeal is whether Jorge Boreland was Jaen’s “parent” for the purposes of having acquired United States citizenship at birth under former INA § 301(a)(7). The court held that the INA incorporates the common law meaning of “parent” into former Section 1401(a)(7), such that a child born into a lawful marriage is the lawful child of those parents, regardless of the existence or nonexistence of any biological link.

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

http://www.ca2.uscourts.gov/decisions/isysquery/acaa41e5-ff31-4711-a905-0cd79a8621e5/1/doc/17-1512_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/acaa41e5-ff31-4711-a905-0cd79a8621e5/1/hilite/

First Circuit Sustains Appeal of Denied Motion to Reopen based on Changed Country Conditions

The First Circuit has sustained an appeal of a changed country conditions motion to reopen, filed by an Indonesian evangelical Christian.

“For aught that appears, the BIA seems to have evaluated the petitioner's motion to reopen as if he were a prototypical Indonesian Christian. The record, however, belies this assumption. In his motion to reopen, the petitioner asserted — and the government did not dispute — that the petitioner subscribes to a more particularized subset of the Christian faith: he is an evangelical Christian, for whom public proselytizing is a religious obligation. Yet, in terms of the prospect of persecution arising out of changed country conditions, the BIA wholly failed to evaluate whether and to what extent there is a meaningful distinction between Christians who practice their faith in private and evangelical Christians (such as the petitioner), for whom public proselytizing is a central tenet. So, too, the BIA neglected to consider whether country conditions had materially changed with respect to public and private reactions (including vigilante violence) toward evangelical Christians. Finally, the BIA neglected to consider whether attitudes in Indonesia had materially changed with respect to persons making public religious statements.”

“The record is replete with copious new evidence submitted by the petitioner and unavailable in 2006, which might well serve to ground a finding (or at least a reasonable inference) that country conditions have steadily deteriorated over the past twelve years. In particular, Islamic fundamentalist fervor seems to have intensified, such that evangelical Christians may now be at special risk in Indonesia. “

The court very forcefully differentiated the situation for non-Evangelical Christians from that of Evangelical Christians. “To be sure, the government tries to pigeonhole the petitioner's case as merely another link in a chain of four cases in which we have rejected claims by Indonesian Christians that country conditions have materially changed. This case, though, is readily distinguishable. None of the earlier cases involved an alien who held himself out to be an evangelical Christian. Accordingly, the religious beliefs of those aliens — and therefore their experiences with religious intolerance — were different in kind, not just in degree.”

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

http://media.ca1.uscourts.gov/pdf.opinions/17-2183P-01A.pdf

First Circuit Rejects PSG of "Single mothers who are Living without Male Protection"

The First Circuit has rejected the particular social group of “single mothers who are living without male protection and cannot relocate elsewhere in the country.” "The amorphous nature of Petitioner's sprawling group precludes determinacy and renders the group insufficiently particular. Her proffered social group is overly broad and potentially encompasses all single mothers in El Salvador who may find themselves unable to relocate in the country. Moreover, exactly what constitutes ‘without male protection’ is an ‘open question’ and possibly a subjective determination."

The full text of Aguilar-De Guillen v. Sessions:

http://media.ca1.uscourts.gov/pdf.opinions/17-2095P-01A.pdf

Second Circuit Construes Physical Custody for Citizenship

Under the Immigration and Nationality Act (INA), a child under the age of eighteen who is a legal permanent resident (LPR) of the United States acquires citizenship when that child’s parent becomes a U.S. citizen if the child is residing in the United States in the “legal and physical custody” of the citizen parent. 8 U.S.C. § 7 1431(a). In this matter, the Second Circuit determined that a child who was in juvenile detention when his father naturalized was still in his father’s legal and physical custody, and as such, acquired derivative citizenship.

“[A] parent’s physical custody of a child does not cease due to a child’s brief, temporary separation from a parent.” “State family law definitions of the term ‘physical custody’ are often at odds with the government’s assertion that a child must be ‘actually resid[ing]’ with a parent for the child to be in that parent’s ‘physical custody.’ For example, physical custody can be split between parents, and two parents can share and retain ‘physical custody’ even if the child does not actually reside in any one parent’s home full‐time.” “Indeed, in the state where Khalid lived with his family prior to his detention and conviction, ‘[p]hysical custody . . . means the right and obligation to provide a home for the child and to make the day‐to‐day decisions required during the time the child is actually with the parent having such custody.’” “The BIA’s decision reduces ‘physical custody’ to an ‘actual residency’ requirement at some point after the citizen parent naturalizes, but before the child’s eighteenth birthday—even in cases involving short, temporary separations, like this one. State law rarely uses such a narrow definition of physical custody, and we do not think that ‘physical custody’ is determined exclusively by the small moment in time immediately following a citizen parent’s naturalization, even when looking to state law for guidance.”

In addition, “the history of the derivative citizenship statute supports reading the statute—and the term ‘physical custody, in particular—to ensure that a child’s ‘real interests’ are in the United States through a genuine connection between the United States citizen parent and that parent’s child.” “Here, there is no dispute that Khalid had such a connection to his United States citizen father at the time Khalid’s father naturalized. Khalid had lived at home with his parents since entering the United States. Thus, Khalid’s acquisition of derivative citizenship does not violate Congress’s demand that the child has a strong connection to the United States to acquire derivative citizenship.”

:Finally, we note that we do not deal in this case with a juvenile adjudicated guilty and imprisoned pursuant to a court‐ordered sentence at the time the juvenile claims to have acquired citizenship. There may be reason in such situations to determine that a minor is not in a naturalizing parent’s physical custody for purposes of 8 U.S.C. § 1431.”

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

http://www.ca2.uscourts.gov/decisions/isysquery/77c6d41c-6bd7-4c5a-8d9a-3ffb65202f94/10/doc/16-3480_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/77c6d41c-6bd7-4c5a-8d9a-3ffb65202f94/10/hilite/

Third Circuit Limits Reach of 237(a)(1)(H) waiver

The Third Circuit has determined that a person who is convicted of making false statements in connection with a fraudulent marriage, and who is subsequently charged with deportability for a crime involving moral turpitude, cannot use a waiver under 237(a)(1)(H) of the INA to reach the crime involving moral turpitude ground.

“The fraud waiver ‘also operate[s] to waive removal based on the grounds of inadmissibility directly resulting’ from the underlying fraud. 8 U.S.C. §1227(a)(1)(H). But Tima’s removability under §1227(a)(2)(A)(i) for a conviction of a crime involving moral turpitude is not based on a ‘ground of inadmissibility.’ So the fraud waiver does not reach that clause. This conclusion follows from the Act’s text, structure, and application of the canons of construction.”

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

http://www2.ca3.uscourts.gov/opinarch/164199p.pdf

Fifth Circuit Refuses to Reopen Reinstated Order

The Fifth Circuit has found that the reinstatement provision, which prevents reopening of a reinstated removal order, trumps the statutory provision allowing a non-citizen to file one motion to reopen.

“Although Rodriguez-Saragosa responds that we have ‘created a conflict’ between 8 U.S.C. § 1229a(c)(7)(A) and § 1231(a)(5), we detect no inconsistency. The former provides that every alien ordered removed from the United States has a right to file one motion to reopen his or her removal proceedings. And the latter provides that an alien forfeits that right by reentering the country illegally. That is the clear import of the statute’s unambiguous text.”

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

http://www.ca5.uscourts.gov/opinions/pub/16/16-60515-CV0.pdf

Sixth Circuit finds PA Drug Statute Divisible

The Sixth Circuit has determined that Pennsylvania Consolidated Statutes, Title 35, § 780-113(a)(30) (possession with intent to deliver a controlled substance) is divisible with respect to the substance at issue. As such, the Immigration Court correctly reviewed the record of conviction to determine that the petitioner’s conviction involved marijuana, a substance regulated by the Controlled Substances Act.

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

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0180p-06.pdf

Seventh Circuit Remands Family-Based Asylum Claim

The Seventh Circuit has determined that a petitioner who was threatened at gunpoint by maras because his brother left the gang was persecuted on account of his family membership.

In a footnote, the court also recognized the indecipherable nature of the BIA’s case law on particular social groups. “W.G.A.’s arguments that the Board’s interpretation is unreasonable have some force. He argues that social distinction and particularity create a conceptual trap that is difficult, if not impossible, to navigate. The applicant must identify a group that is broad enough that the society as a whole recognizes it, but not so broad that it fails particularity. And as we have stated, rejecting a social group because it is too broad ‘would be akin to saying that the victims of widespread governmental ethnic cleansing can‐ not receive asylum simply because there are too many of them.’”

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-21/C:16-4193:J:Hamilton:aut:T:fnOp:N:2205587:S:0

Seventh Circuit Overturns CAT Denial

The Seventh Circuit has sustained the appeal of a petitioner for protection under the Convention Against Torture (CAT) involved in drug trafficking, who feared reprisals from the Zetas for the drugs seized by the police. “The parties agree that a fugitive Los Zetas leader warned Rivas-Pena that he would be responsible if anything happened to the contraband and that ‘several hundred thousand dollars,’ in Dr. Jones’s expert opinion, “‘s not an amount the Zetas will forgive and forget.’ Given these facts—and Dr. Jones’s additional unchallenged opinion that Rivas-Pena faces ‘a very high to near certainty [] of being tortured and killed if deported to Mexico’—a reasonable factfinder would not dismiss as merely ‘speculative’ Rivas-Pena’s fear of harm by Los Zetas.”

“The only explanation the Board and the judge gave for dismissing Rivas-Pena’s fears as ‘speculative; was that neither Rivas-Pena nor his family have been ‘tortured, harmed, threatened, or even inquired after’ by Los Zetas since 2013. That explanation from the Board and the judge fails to engage with why Rivas-Pena has had no recent contact with Los Zetas: he has been in jail or federal immigration custody in the United States ever since he incurred his ‘debt’ to the cartel in 2013. While it is conceivable that the cartel has members who are detained in the United States, it is not surprising that the cartel would bide its time until Rivas-Pena is no longer protected by American authorities.”

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-21/C:18-1183:J:Hamilton:aut:T:fnOp:N:2205175:S:0

Eighth Circuit finds that NY Second-Degree Robbery Conviction is Crime of Violence

The Eighth Circuit has determined that a New York second-degree robbery conviction qualifies as a crime of violence under the federal sentencing guidelines. The court noted that the statute requires the defendant to “forcibly steal” property from the victim, and that the force must be capable of causing physical pain or injury.

The full text of US v. Williams can be found here:
http://media.ca8.uscourts.gov/opndir/18/08/171632P.pdf

Ninth Circuit Certifies Divisibility Questions to Oregon Supreme Court

The Ninth has certified to the Oregon Supreme Court the questions of whether Oregon’s first- and second-degree robbery statutes are divisible. The court found that this question was necessary to answer before it could determine if convictions under these statutes qualify as crimes of violence.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/18/17-30061.pdf

CA Court of Appeals finds that 1473.7 does not Apply to Probation Violations

The First Appellate District has determined that section 1473.7 of the California Penal Code does not provide a mechanism by which to vacate a probation violation. In addition, the court expressed skepticism as to whether a trial court must advise a defendant of the potential immigration consequences of a probation violation.

“Appellant, furthermore, is not basing his section 1473.7 motion on the contention he did not understand the immigration consequences of a guilty plea or no contest plea. His motion challenged he did not understand the immigration consequences of his probation violation admission. This aspect of criminal proceedings is not covered by section 1473.7 and a literal reading of the statute itself. When there is no ambiguity to the statute in issue, the plain meaning governs.”

“Regarding the issue of ineffective assistance in the probation hearing, appellant maintains now that his trial attorney was ‘unaware that the new sentence on the probation violation rendered the conviction an aggravated felony’ for immigration purposes. Missing from this record is any declaration by his trial attorney confirming she lacked this information, or that appellant’s attorney did not consider alternatives in the disposition. Additionally, there is no evidence to suggest the prosecution, and/or the trial court, would approve any leniency in this revocation proceeding. The remarks by the trial court support the point the hearing judge would not have approved an alternative, less punitive option.”

“Additionally, there is no authority provided that requires a trial court in a probation hearing to remind a person again of the immigration consequences in a revocation proceeding. Nor is there authority the failure to discuss immigration consequences with a defendant previously advised falls below professional standards. Appellant was fully advised in 2014 and provides no information he was not aware of possible adversities to his immigration status when he was before the trial court on this probation violation. Under section 1016.5, admonition regarding immigration status is only necessary when the accused is entering a plea to a violation of state law. That happened here. There is no statutory duty to readvise when the subject is before the court on a probation matter.”

“An allegation that trial counsel failed to properly advise a defendant is meaningless unless there is objective corroborating evidence supporting appellant’s claimed failures. “We have no such evidence presented. There is no declaration of improper advice by trial counsel; the transcript of court proceedings reflects trial counsel and the court were aware of immigration issues during the plea process. Even the declaration by attorney Todd submitted during the hearing on the section 1473.7 hearing finds no statutory or constitutional missteps by trial counsel during the proceedings.”

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

http://www.courts.ca.gov/opinions/documents/A152348.PDF

Finally, the court found that a motion under 1473.7 was not appropriate, as the defendant was still on probation for the case in which he was trying to vacate the probation violation.

Ninth Circuit holds that Immigration Judge has Sua Sponte Authority to Reopen Reasonable Fear Review

The Ninth Circuit addressed the parameters of reasonable fear review before an Immigration, as well as the judge’s authority to reopen that review. A “reasonable fear review hearing is conducted by an IJ. It is not as comprehensive or in-depth as a withholding of removal hearing in removal proceedings. Either party may introduce oral or written statements, and the court provides an interpreter if necessary.” “Extensive proof is not needed; rather an IJ need only determine whether there is at least a ten percent chance that the alien would be persecuted on account of his or her race, religion, nationality, membership in a particular social group or political opinion, or a reasonable possibility that he or she would be tortured in the country of removal.” Thus, although an IJ may allow an alien to submit evidence to support his or her claim, the IJ is not required to do so. The Court found that an IJ has the sua sponte authority to reopen any proceedings in which he has made a decision, including a reasonable fear review.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/14/15-71666.pdf

Ninth Circuit holds that CA Robbery Statute is not a Crime of Violence

The Ninth Circuit has held that California’s robbery statute does not match the definition of a crime of violence. Because a person can commit California robbery “by accidentally using force,” it does not match the definition of a crime of violence in 18 USC 16(a), which requires the use of intentional force.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/07/15-50366.pdf

CA Appellate Court Applies De Novo Review to Denial of 1473.7 Motion

The Court of Appeal for the State of California, Fifth Appellate District, has held that a denial of a 1473.7 motion to vacate is subject to de novo review. The court noted that the trial court, in giving the required 1016.5 advisements, told the defendant he would suffer immigration consequences, not that he might suffer them. “After being specifically advised by the trial court his plea would lead to his deportation and denial of readmission to the United States, Tapia did not request more time to speak with counsel or further consider the appropriateness of entering a plea. Instead, when asked by the trial court if he understood, Tapia affirmatively stated he understood this advisement from the trial court.”

In addition, his criminal defense attorney stated in his declaration he specifically advised Tapia the negotiated disposition “exposed him to deportation proceedings and other negative consequences. These would include loss of permanent resident status, preclusion from citizenship and prevention of reentry, as this was my custom and practice in situations similar to … Tapia’s.” He further stated that he advised Tapia that immigration officials “could put a hold on him any day, and although he still faced deportation out of custody, the chances of such proceedings decreased when not in jail.” “Therefore, we uphold the trial court’s finding Tapia was advised of the specific immigration consequences of his plea and the effect the plea would have on his legal resident status. “

“Tapia also contends Collins rendered deficient representation by failing to negotiate an ‘immigration safe’ plea bargain. Tapia’s claim such a disposition could have been negotiated is pure speculation without support in the record.” “Collins also believed he advised Tapia immigration might put a hold on him any day, and the sooner Tapia was released from custody, the less likely it was he would face deportation proceedings. The probation report confirms there were no holds on Tapia at the time of entry of the plea precluding a release from custody. As such, the plea bargain allowing for a quick release from custody to avoid any immigration holds also provided a better resolution for immigration purposes.”

The full text in People v. Tapia can be found here:

http://sos.metnews.com/sos.cgi?0918//F075475

Ninth Circuit Analyzes False Claim to US Citizenship for Private Employment

The Ninth Circuit has determined that making a false claim to US citizenship for the purpose of procuring private employment renders a non-citizen inadmissible. However, the court also found that the only way to make a false claim to US citizenship for the purpose of procuring private employment is through the use of an I-9 form.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/30/15-73603.pdf

Ninth Circuit holds that Outdated Country Conditions Reports cannot meet DHS's Burden to Rebut the Presumption of Future Torture

The Ninth Circuit has held that the Department of Homeland Security does not rebut the presumption of a well-founded fear of persecution raised by a petitioner who experienced past persecution when the only evidence they submit is 5-year-old country conditions reports. “Unlike fine wine, reports on country conditions do not improve with age—a reality that our colleagues on the Second Circuit have repeatedly acknowledged.” Outdated country conditions reports cannot serve to demonstrate that current country conditions are such that a petitioner is not in danger of persecution. “Common sense dictates that the government cannot meet its burden of rebutting the presumption by presenting evidence of the Salvadoran government’s human rights record at a time when the government was run by a different political party— particularly when the government is now run, as it was at the time of the IJ hearing, by the very same FMLN who persecuted the Quiroz Parada family.”

“Because the agency’s determination that the government successfully rebutted the presumption of future persecution is unsupported by substantial evidence, we hold that the presumption has not been rebutted and that Quiroz Parada is statutorily eligible for asylum and entitled to withholding of removal, and remand for the Attorney General to exercise his discretion under 8 U.S.C. § 1158(b) as to whether to grant asylum. Particularly where, as here, the government took thirteen years to process the asylum application and then another five years to hold a hearing before an IJ—during which time the government had every opportunity to submit more up-to-date evidence of changed country conditions, but failed to do so—to provide the government with another opportunity to present evidence of changed country conditions would be exceptionally unfair.”

With respect to the petitioner’s application for protection under the Convention Against Torture, the Court found that the country conditions reports and other evidence in the record established not only that the government acquiesced in the MS gang’s violence, but also that Salvadoran security forces engaged in torture on a regular basis.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/29/13-73967.pdf