BIA Applies Realistic Probability Test to Drug Conviction

The Board of Immigration Appeals (BIA) has determined that “where an alien has been convicted of violating a state drug statute that includes a controlled substance that is not on the federal controlled substances schedules, he or she must establish a realistic probability that the state would actually apply the language of the statute to prosecute conduct involving that substance in order to avoid the immigration consequences of such a conviction.” In the instant case, the respondent argued that a Florida conviction for possession of marijuana did not render him inadmissible because Florida’s definition of marijuana is broader than the federal definition. “The respondent has also not presented any cases where a defendant was successfully prosecuted under Florida law for an offense that involved only a form of marijuana that was not prohibited by 21 U.S.C. § 802(16).” As such, the BIA found that the respondent had not established a realistic probability that Florida prosecutes marijuana offenses that fall outside the federal definition of marijuana.

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

https://www.justice.gov/eoir/page/file/1171626/download

BIA Determines that False Claim to US Citizenship does not Require Knowledge of Falsity of Claim

The Board of Immigration Appeals has determined that a lawful permanent resident is deportable for making a false claim to US citizenship even if he did not know his claim was false. “Significantly, Congress carved out a narrow exception to this provision for those aliens whose parents are or were United States citizens; who permanently resided in the United States prior to the age of 16 years; and who reasonably believed that they were United States citizens when they made such a claim.4 Section 237(a)(3)(D)(ii) of the Act; see also section 212(a)(6)(C)(ii)(II) of the Act. This exception indicates that an alien is not required to know that a claim to citizenship is false, because if Congress had intended to include a knowledge or willfulness requirement in section 237(a)(3)(D)(i), there would be no need for a good faith exception.” “thus, we conclude that under the plain language of that section, it is not necessary to show intent to establish that an alien is deportable for making a false representation of United States citizenship. An alien need only falsely claim to be a United States citizen for any purpose or benefit under the Act or any Federal or State law to be deportable.”

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

https://www.justice.gov/eoir/page/file/1178256/download

Ninth Circuit Upholds Removal Order of CNMI Guest Worker

The court has determined that Congress’s two-year reprieve (following the imposition of US immigration law on the CNMI) protected immigrants in the CNMI from removability on the basis that they had not been admitted or paroled into the United States, but did not exempt them from removal based on other grounds of removability set forth in the INA, such as being an applicant for admission who was not in possession of a valid entry document. In addition, because residence in the CNMI prior to the imposition of US immigration laws cannot be used toward the residence requirement for naturalization, it also cannot be used for the continuous physical presence requirement for cancellation of removal for non-lawful permanent residents.

The full text of Torres v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/06/12/13-70653.pdf

Ninth Circuit Prohibits ICE from Using Document Warrants as Pretext for Mass Raids

“Immigration and Customs Enforcement (ICE) agents implemented a preconceived plan to ‘target’ over 200 factory workers for detention and for interrogation as to their immigration status. The plan turned on obtaining and executing a search warrant for employment records at the factory. The record before us establishes that the search warrant for documents was executed “in order to” arrest undocumented workers present at the factory. Our central question is whether the ICE agents were permitted to carry out preplanned mass detentions, interrogations, and arrests at the factory, without individualized reasonable suspicion. We hold that they were not.”

“The government does not dispute that Perez Cruz was seized for purposes of the Fourth Amendment when he was detained in his workplace, frisked, and handcuffed, or that the ICE agents did so without individualized reasonable suspicion. Rightly so. The record confirms that the agents detained Perez Cruz and his coworkers at the outset of the raid, blocking all exits and prohibiting them from leaving. That ICE suspected MSE was employing undocumented workers did not provide reasonable suspicion that Perez Cruz himself was undocumented.” “The government maintains that, despite this bedrock principle, Michigan v. Summers permitted the agents to detain Perez Cruz without suspicion on their arrival at the MSE factory to execute the search warrant they had in hand.”

“The authority provided by Summers for detention during the execution of a valid search warrant applies in the absence of probable cause or reasonable suspicion as to the detained individuals’ culpability, and so is analogous to the probable cause exceptions for which valid purpose is a prerequisite.” “Perez Cruz has presented substantial, uncontroverted evidence that the search authorized by the warrant was far from the ICE agents’ central concern. Instead, the agents’ principal goal was to detain, interrogate, and arrest a large number of individuals who worked at the MSE factory, hoping to initiate removal proceedings against them.” “Where ‘a safe and efficient search’ is not the primary purpose of the officers’ actions, Summers’s justification for bypassing the Fourth Amendment’s traditional protections disappears, just as the justifications for doing so disappear—and so bypass of the usual Fourth Amendment requisites becomes impermissible—in inventory and administrative search cases.”

The court concluded that Perez Cruz was entitled to suppression of his statements about alienage and the related documents obtained by ICE demonstrating his foreign birth.

The full text of Perez Cruz v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/06/13/15-70530.pdf

Ninth Circuit finds that CA Indecent Exposure Conviction is a CIMT

The Ninth Circuit has deferred to the Board of Immigration Appeals’ (BIA) determination in Matter of Cortes Medina that a California conviction for indecent exposure is a crime involving moral turpitude (CIMT), overturning its prior precedent in Nunez v. Holder. Thus, the defining characteristic of a CIMT in the indecent exposure context is whether the offense conduct includes “lewd intent.” In assessing the retroactive application of the new definition of an indecent exposure CIMT, the court noted that Cortes Medina was a drastic departure from the published precedent in Nunez. “Nunez was well-settled policy in this Circuit from February 10, 2010, the date on which Nunez was decided, until January 8, 2013, the date on which Cortes Medina was decided.” However, the court found that the petitioner could not have relied on Nunez when he pleaded guilty in 2002 because Nunez had not yet been decided. The petitioner not assert that he paid fees during his immigration proceedings in reliance on Nunez,. nor did he assert that he made strategic decisions or chose not to apply for other forms of relief because he relied on the availability of cancellation of removal under Nunez. Though the court applied the Cortes Medina definition retroactively to the petitioner, it clearly left open the possibility that someone else could demonstrate sufficient reliance on Nunez to prohibit the retractive application of Cortes Medina.

The full text of Betansos v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/05/15-72347.pdf

Eighth Circuit finds that Arkansas First Degree Terrorist Threatening Conviction is Violent Felony

The Eighth Circuit has determined that an Arkansas conviction for first degree terrorist threatening is divisible between threats of injury and threats to property. Applying the modified categorical approach, the court determined that a conviction for threats of serious injury is a violent felony.

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

https://ecf.ca8.uscourts.gov/opndir/19/07/172415P.pdf

Eighth Circuit finds that Arkansas AGGRAVATED Robbery is a Crime of Violence

The Eighth Circuit has concluded that an Arkansas aggravated robbery conviction is a crime of violence because it requires sufficient force to overcome a victim’s resistance and does not criminalize mere snatching of property.

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

https://ecf.ca8.uscourts.gov/opndir/19/06/173760P.pdf

Eighth Circuit finds that Indiana Burglary Matches Generic Burglary Offense

The Eighth Circuit has determined that an Indiana burglary statute matches the federal definition of burglary, even though it includes burglary in outdoor, fenced-in areas.

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

https://ecf.ca8.uscourts.gov/opndir/19/06/181984P.pdf

Eighth Circuit Reaffirms that Minnesota Simple Robbery is a Violent Felony

The Eighth Circuit has reaffirmed, in light of recent Supreme Court precedent, that a Minnesota conviction for simple robbery is a violent felony under the Armed Career Criminal Act (ACCA). Given the similar definition of a violent felony under the ACCA and a crime of violence in the immigration context, this decision could have persuasive value in the immigration context.

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

https://ecf.ca8.uscourts.gov/opndir/19/06/171760P.pdf

Seventh Circuit Remands CAT Claim for Second Time

The Seventh Circuit has again remanded a request for protection under the Convention Against Torture filed by a former MS-13 gang member. The court identified a number of places in which the court cherrypicked evidence, failing to acknowledge the documents that corroborated the petitioner’s testimony. In addition, the court admonished the agency for discrediting written statements made by the applicant’s relatives, who the Immigration Judge identified as “interested parties.” While the court acknowledged that an applicant’s family members would be interested in the outcome of a case, they would also be the people most likely to have information relevant to the applicant’s claim.

The full text of Romero Arrazabal v. Barr can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D07-03/C:17-2969:J:Rovner:aut:T:fnOp:N:2364883:S:0

Seventh Circuit Upholds Denial of Continuance

The Seventh Circuit has upheld the denial of a continuance to an application who waited until 3 months before his merits hearing to file an I-751 waiver, despite his jointly-filed I-751 having been denied 3 years early based on marriage fraud.

The full text of Toure v. Barr can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D06-07/C:18-3634:J:Hamilton:aut:T:fnOp:N:2352317:S:0

Seventh Circuit finds that IL Unlawful Possession of a Controlled Substance Statute is not Divisible

The Seventh Circuit has determined that a conviction under an Illinois statute criminalizing unlawful possession of a controlled substance is not a deportable offense. Both parties agreed that the statute criminalized possession of substances not listed in the Controlled Substances Act. The court found the statute at issue to be indivisible.

“Under the language of § 402(c) and its place in the larger Illinois act, any ‘controlled substance’ will do, subject to the explicit exceptions for methamphetamine, counterfeit substances, and anabolic steroids. The text and structure do not show that the identity of the controlled substance is an element under § 402(c).” The court also noted that while the charging document in the petitioner’s criminal case specified the identity of the substance, the sentencing document did not.

The full text of Najera-Rodriguez v. Barr can be found here:

ssExec.pl?Submit=Display&Path=Y2019/D06-04/C:18-2416:J:Hamilton:aut:T:fnOp:N:2350297:S:0

Fourth Circuit Remands Asylum Claim for Single Mother from Honduras

The Fourth Circuit has remanded a petition for review filed by a female asylum seeker who argued that she was targeted for persecution by the gangs in Honduras based on her status as a single mother. The court found that the gendered statements made by the gang members, as well as the threats made against the petitioner’s daughter, were sufficient to demonstrate that petitioner’s status as an unmarried mother was at least one central reason for the harm she suffered.

With respect to the petitioner’s proposed social group, the court did not decide whether the group was cognizable, but made several observations about the legal conclusions of the Immigration Judge. The court rejected the Immigration Judge’s conclusion that the proposed group was too large to be cognizable for asylum purposes.

Additionally, the petitioner asserted that she was persecuted on account of her imputed anti-gang political opinion. “When, as here, an applicant claims that she has been or will be persecuted on account of an imputed political belief, then the relevant inquiry is not the political views sincerely held or expressed by the victim, but rather the persecutor’s subjective perception of the victim’s views.” The court chided the Immigration Judge for focusing on whether the applicant was politically motivated when she refused the gang’s demands, but remanded for the agency to consider if the gang perceived her refusal as a political statement.

Finally, the court remanded for further analysis of the petitioner’s Convention Against Torture claim. A gang member threatened to rape, mutilate, and murder both the petitioner and her daughter if she did not pay him. The petitioner also testified that Barrio 18 members have continued to ask her family about her whereabouts since she fled. “That testimony alone could be sufficient to sustain her burden as to future mistreatment.” The fact that the testimony was corroborated by expert testimony only strengthened her claim.

The full text of Alvarez Lagos v. Barr can be found here:

http://www.ca4.uscourts.gov/Opinions/172291.P.pdf

Second Circuit finds NY Conviction for Child Endangerment is a Crime of Child Abuse

The Second Circuit has determined that a New York child endangerment conviction is a deportable child abuse offense. In so doing, the court reaffirmed its decision to defer to the Board of Immigration Appeals’ definition of a crime of child abuse, which does not require actual harm to a child. The New York statute at issue criminalizes knowingly acting in a manner likely to be injurious to the physical, mental, or moral welfare of a child less than seventeen years old. he New York Court of Appeals has interpreted the as requiring both that the defendant acted with an awareness of the potential for harm and that the harm was likely to occur, and not merely possible.

The full text of Matthew v. Barr can be found here:

http://www.ca2.uscourts.gov/decisions/isysquery/02221bb5-9a17-4413-a7e2-97aecf140138/11/doc/16-3145_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/02221bb5-9a17-4413-a7e2-97aecf140138/11/hilite/

Second Circuit Affirms that Asylum Applicant can Pursue Multiple Theories of Asylum Even if Changed Circumstances Apply to Only One Ground

The Second Circuit has held that an asylum applicant may “raise multiple claims in her asylum application, even if the changed circumstance relates only to one proffered basis for asylum.” The petitioner filed for asylum based on having undergone a forced abortion and also on the basis of a religious conversion. She submitted her application over a decade after her arrival to the United States, but within one month of her conversion to Christianity. The Immigration Judge (IJ) found that the petitioner was credible on all counts, but that there was insufficient evidence of persecution of Christians in China to grant the asylum application on that basis. The IJ did not consider the petitioner’s asylum claim based on her forced abortion because the IJ determined that the claim was not timely filed, but the IJ found Yang’s story credible and granted her withholding of removal on the basis of that claim.

“In our first look at the plain language of the statute, we observe that the relevant section clearly states that ‘an application for asylum of an alien may be considered . . . if the alien demonstrates . . . changed circumstances which materially affect the applicant’s eligibility for asylum.’ The plain language of the statute thus makes clear that changed circumstances provide for the consideration of an application for asylum, as opposed to a specific claim for asylum.”

The full text of Yang v. Barr can be found here:

http://www.ca2.uscourts.gov/decisions/isysquery/02221bb5-9a17-4413-a7e2-97aecf140138/5/doc/16-3478_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/02221bb5-9a17-4413-a7e2-97aecf140138/5/hilite/

First Circuit Finds Changed Country Conditions in Venzuela

The First Circuit has granted the appeal of a Venezuelan petitioner’s motion to reopen. The court noted that the country conditions showed a substantial increase in political prisoners, as well as severe mistreatment of political prisoners.

The full text of Cabas v. Barr can be found here: http://media.ca1.uscourts.gov/pdf.opinions/18-1630P-01A.pdf

CA Appeals Court Discusses Right to Hearing and Counsel for 1473.7 Motion

The California Court of Appeal, Fourth Appellate District, has determined that the moving party is entitled to a hearing under Penal Code 1473.7. The court further stated that “if the moving party is indigent and cannot attend the hearing because he or she is in federal custody awaiting deportation, we find the trial court should appoint counsel.” The court reasoned that “if a postconviction petition by an incarcerated defendant attacking the validity of a judgment states a prima facie case leading to issuance of an order to show cause, the appointment of counsel is demanded by due process concerns.”

The full text of People v. Fryhaat can be found here: http://sos.metnews.com/sos.cgi?0619//E070847

BIA Discusses Abuse of Asylum Process

The Board of Immigration Appeals has determined that a judge may grant a motion to dismiss by the Department of Homeland Security on the ground that continuation of the proceedings is no longer in the best interest of the government because the respondent abused the asylum process in order to apply for cancellation of removal in removal proceedings. The Board found evidence of such abuse in this case, where the respondents did not appear for their asylum interviews and immediately withdrew their asylum applications, instead pursuing cancellation of removal applications.

The full text of Matter of Andrade Jaso can be found here: https://www.justice.gov/eoir/file/1167381/download

BIA Finds no Need to Reopen In Absentia Order when NTA was Missing Time and Date of Hearing

In a pair of decisions, the Board of Immigration Appeals has determined that neither rescission of an in absentia order of removal nor termination of the proceedings is required where a respondent did not appear at a scheduled hearing after being served with a notice to appear that did not specify the time and place of the initial removal hearing, so long as a subsequent notice of hearing specifying that information was properly sent to the respondent.

The full text of Matter of Pena-Mejia can be found here: https://www.justice.gov/eoir/page/file/1164976/download

The full text of Matter of Miranda-Cordiero can be found here: https://www.justice.gov/eoir/page/file/1164981/download

BIA Finds that Notice of Hearing Completes Deficient NTA for Purposes of Stop-Time Rule

The Board of Immigration Appeals (Board) has determined that in “cases where a notice to appear does not specify the time or place of an alien’s initial removal hearing, the subsequent service of a notice of hearing containing that information perfects the deficient notice to appear, triggers the ‘stop-time’ rule, and ends the alien’s period of continuous residence or physical presence in the United States.” The Board determined that this was consistent with the Supreme Court’s decision in Pereira v. Sessions, since Pereira had accumulated the required 10 years by the time he was properly served with a notice of hearing.

The full text of Matter of Mendoza-Hernandez can be found here:

https://www.justice.gov/eoir/file/1159201/download