Ninth Circuit Defers to BIA's Determination that Categorical Approach does not Apply to Violation of a Protective Order Ground of Deportability

The Ninth Circuit has deferred to the Board of Immigration Appeals’ (BIA) decisions in Matter of Medina-Jimenez and Matter of Obshatko and concluded that the categorical approach does not apply to the analysis of whether a conviction related to violating a protective order disqualifies an applicant from cancellation of removal for non-lawful permanent residents. “The presence of the word ‘convicted’ in § 1229b(b)(1)(C) and its absence from § 1227(a)(2)(E)(ii), renders the statutory language ambiguous regarding whether the categorical approach applies to determining whether an alien is removable under § 1229b(b)(1)(C) for violating a protection order under § 1227(a)(2)(E)(ii).” “The BIA’s two-step inquiry for determining whether an alien is ineligible for cancellation of removal based on a violation of a protection order is consistent with the statutory language and is a reasonable interpretation: whether the alien has been ‘convicted’ as defined by § 1101(a)(48)(A); and whether a state court found that the alien’s ‘offense’ involves conduct described under § 1227(a)(2)(E)(ii).”

The Ninth Circuit also agreed with the BIA that a state’s labeling of an offense as a conviction is not determinative as to whether the offense qualifies as a conviction under the immigration laws, so long as the underlying proceeding is criminal in nature. “The proceeding should at the very least comply with basic notions of procedural due process—e.g., notice and opportunity to be heard in front of an impartial tribunal.” Thus, a violation of an Oregon restraining order under the Family Abuse Prevention Act, though not considered a crime under Oregon law, meets the definition of a conviction for immigration purposes.

The full text of Diaz-Quirazco v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/23/16-72387.pdf

Ninth Circuit Finds that CA Conviction for Battery with Serious Bodily Injury is Crime of Violence

The Ninth Circuit has determined that a California conviction for battery resulting in serious bodily injury is a crime of violence under the federal sentencing guidelines. The court determined that the statute criminalizes an intentional use of physical force that results in serious bodily injury. “Because ‘serious bodily injury’ is defined as ‘a serious impairment of physical condition,’ we must [] conclude that a person cannot be convicted under § 243(d) ‘unless he willfully and unlawfully applies force sufficient to not just inflict a physical injury on the victim, but to inflict’ a severe physical injury.”

Given the similar definitions of a crime of violence in the federal sentencing and immigration contexts, this decision could have significant impact in immigration cases.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/25/17-10216.pdf

Eighth Circuit Upholds Tier III Terrorism Finding

The Eighth Circuit has upheld a finding that the Movement of Democratic Forces of Casamance is a Tier III terrorist organization. As such, the petitioner - who donated money and recruited members for the organization - was ineligible for adjustment of status.

The full text of N’Diaye v. Barr can be found here:

https://ecf.ca8.uscourts.gov/opndir/19/07/181135P.pdf

Eighth Circuit Finds that Nebraska False Reporting Statute is Overbroad and Divisible

The Eighth Circuit has determined that Nebraska’s false reporting statute is overbroad and divisible with respect to the issue of moral turpitude. The court then determined that subsection (1)(a) requires a specific intent to deceive a police officer, and as such, qualifies as a crime involving moral turpitude.

The full text of Adame-Hernandez v. Barr can be found here:

https://ecf.ca8.uscourts.gov/opndir/19/07/173668P.pdf

Eighth Circuit finds that Iowa Drug Statute is Controlled Substance Offense

The Eighth Circuit has determined that an Iowa statute making it illegal to “manufacture, deliver, or possess with the intent to manufacture or deliver, a controlled substance, a counterfeit substance, or a simulated controlled substance, or to act with, enter into a common scheme or design with, or conspire with one or more other persons to manufacture, deliver, or possess with the intent to manufacture or deliver a controlled substance, a counterfeit substance, or a simulated controlled substance” is a controlled substance offense. The court rejected the defendants’ argument that aiding and abetting liability is inherent in the definition of all drug offenses, and Iowa’s doctrine of aiding and abetting is broader than the generic definition of aiding and abetting because it requires mere knowledge of the underlying crime, as opposed to an intent to promote or facilitate the underlying crime.

The court disagreed, finding that the intent requirement for aiding and abetting in Iowa was substantially similar to the federal definition of aiding and abetting.

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

https://ecf.ca8.uscourts.gov/opndir/19/07/173817P.pdf

Sixth Circuit finds that Michigan Unarmed Robbery is a Crime of Violence

The Sixth Circuit has determined that a Michigan conviction for unarmed robbery is a crime of violence under the sentencing guidelines. The court noted that the minimum conduct punishable under the statute requires putting the victim in fear of physical injury, and thus, involves the threatened use of force. Given the similar definitions of a crime of violence in the sentencing guidelines and a crime of violence aggravated felony in the immigration context, this decision could have persuasive impact in immigration cases.

The full text of United States v. Fuller-Ragland can be found here:

http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0146p-06.pdf

Sixth Circuit Reopens Proceedings for Indigenous Guatemalan

The Sixth Circuit has granted a petition for review for an indigenous Guatemalan who became involved in labor rights activities on behalf of indigenous workers after being deported. The court held that his voluntary participation in these activities, combined with evidence that persecution of indigenous communities in Guatemala had intensified, was sufficient to warrant reopening.

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

http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0145p-06.pdf

Fifth Circuit Finds that NTA Lacking Time and Date of First Hearing is not Jurisdictionally Defective but Presents a Claim-Processing Rule

The Fifth Circuit has determined that a Notice to Appear lacking the time and date of the first removal hearing is not jurisdictionally deficient. However, the court agreed with the Seventh Circuit that such a situation does present a claim-processing rule. Thus, the issue needed to be raised before the Board of Immigration Appeals.

The full text of Pierre-Paul v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/18/18-60275-CV0.pdf

Third Circuit Grants Petition for Review of Nepali Asylum Seeker

The Third Circuit has granted a petition for review filed by a Nepali asylum seeker, finding the Board of Immigration Appeals failed to accept as true declarations submitted with a motion to remand, without providing a reason to believe that the declarations are inherently unbelievable.

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

https://www2.ca3.uscourts.gov/opinarch/183109p.pdf

Third Circuit Finds that NTA Missing Time & Date of Hearing does not Deprive Court of Jurisdiction

The Third Circuit has determined that a Notice to Appear that lacks the time and date of the first removal hearing does not deprive the Immigration Court of jurisdiction over the removal proceedings.

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

https://www2.ca3.uscourts.gov/opinarch/183109p.pdf

Third Circuit Rejects Paid Police Informants as a PSG

The Third Circuit has rejected the proposed social group of “paid police informants,” finding that that it lacks social distinction.

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

https://www2.ca3.uscourts.gov/opinarch/183480p.pdf

Third Circuit finds that Good Moral Character Period Continues until Adjudication of Cancellation Application

The Third Circuit has determined that the good moral character period for cancellation of removal for non-lawful permanent residents does not cease with service of the Notice to Appear. Instead, the period continues to run until the entry of an administratively final decision. In so doing, the court deferred to the Board of Immigration Appeals’ decision in Matter of Ortega-Cabrera.

The full text of Mejia-Castanon v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/172901p.pdf

First Circuit Recognizes "Dreadful" Conditions for LGBT Community in Uganda but Declines to Reopen Proceedings

The First Circuit has upheld the denial of a motion to reopen based on changed country conditions in Uganda for an LGBT asylum seeker, finding that the conditions have not materially changed, but have instead, been terrible for the LGBT community since before the applicant’s 2014 removal order.

“Put bluntly, the situation is dreadful — but it has been dreadful throughout the relevant period. The petitioner's submissions fail to show that the level of hostility, persecution, or other mistreatment intensified between May of 2014 (when the merits hearing concluded) and June of 2018 (when the petitioner's second motion to reopen was filed).”

“Let us be perfectly clear. We have no illusions about what is happening in Uganda with respect to LGBT individuals. We regard the views of the Ugandan government toward members of the LGBT community as benighted, and we know that the petitioner's life in her homeland may prove trying. But the conditions that confront LGBT individuals in Uganda, though disturbing, are not new. Those conditions have persisted for decades, and they have not materially changed in the relatively brief interval between the conclusion of the petitioner's 2014 merits hearing and the filing of her 2018 motion to reopen.”

The court did suggest that the Executive Branch has the authority to grant the applicant parole into the United States., given the humanitarian factors in the case.

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

http://media.ca1.uscourts.gov/pdf.opinions/18-1911P-01A.pdf

First Circuit Reverses Denial of Asylum to Nepalese Citizen

The First Circuit has reversed the denial of asylum to a Nepalese citizen, finding that the Department of State reports were insufficiently particularized to the applicant’s claim to rebut the presumption of future persecution arising from the past persecution the applicant experienced.

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

http://media.ca1.uscourts.gov/pdf.opinions/18-1790P-01A.pdf

First Circuit Finds no Jurisdiction over Denial of MTR for VAWA Cancellation; Remands for Further Analysis of Eligibility for Asylum based on Domestic Abuse

The First Circuit has determined that it has no jurisdiction to review the denial of a motion to reopen to seek VAWA cancellation of removal. The Board of Immigration Appeals (Board) also denied the petitioner’s motion to reopen to seek asylum based on domestic abuse perpetrated by her ex-spouse. The Board determined the harm was too remote in time to support eligibility for asylum. The First Circuit remanded, finding that the Board implicitly accepted that the abuse qualified as persecution on account of a protected ground, and as such, should have applied a presumption of future persecution.

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

http://media.ca1.uscourts.gov/pdf.opinions/18-1992P-01A.pdf

SCOTUS Limits Deference to Agency Interpretation of Regulations

The Supreme Court has limited the instances in which deference will be owed to an agency’s interpretation of its own regulations (known as Auer deference).

“The possibility of deference can arise only if a regulation is genuinely ambiguous. And when we use that term, we mean it—genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation. Still more, not all reasonable agency constructions of those truly ambiguous rules are entitled to deference. As just explained, we presume that Congress intended for courts to defer to agencies when they interpret their own ambiguous rules.But when the reasons for that presumption do not apply, or countervailing reasons outweigh them, courts should not give deference to an agency’s reading, except to the extent it has the ‘power to persuade.’” “And although the limits of Auer deference are not susceptible to any rigid test, we have noted various circumstances in which such deference is ‘unwarranted.’ In particular, that will be so when a court concludes that an interpretation does not reflect an agency’s authoritative, expertise-based, fair, or considered judgment.”

Recognizing that not all regulations are ambiguous, the Court implored lower courts to “make a conscientious effort to determine, based on indicia like text, structure, history, and purpose, whether the regulation really has more than one reasonable meaning.”

The Court suggested that interpretation of legal terminology may fall outside an agency’s expertise. “When the agency has no comparative expertise in resolving a regulatory ambiguity, Congress presumably would not grant it that authority.”

“And a court may not defer to a new interpretation, whether or not introduced in litigation, that creates 'unfair surprise’ to regulated parties. That disruption of expectations may occur when an agency substitutes one view of a rule for another. We have therefore only rarely given Auer deference to an agency construction conflicting with a prior one.

The full text of Kisor v. Wilkie can be found here:

https://www.supremecourt.gov/opinions/18pdf/18-15_9p6b.pdf

SCOTUS Clarifies Generic Definition of Burglary

The Supreme Court has determined that the generic definition of burglary does not require a defendant to have criminal intent at the first moment that he unlawfully remains in a building, but rather, encompasses offenses where a defendant forms that intent at any time that he is unlawfully remaining the building. As such, Michigan’s third-degree home invasion statute is a match to the generic burglary definition.

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

https://www.supremecourt.gov/opinions/18pdf/17-778_7li8.pdf

CA Court of Appeals Clarifies Standards for 1473.7 Motion

The California Court of Appeals, Fourth Appellate District, has held that to succeed on a motion to vacate under Penal Code 1473.7, a person need only show by a preponderance of the evidence: 1) he did not ‘meaningfully understand’ or ‘knowingly accept’ the actual or potential adverse immigration consequences of the plea; and 2) had he understood the consequences, it is reasonably probable he would have instead attempted to ‘defend against’ the charges.” “We agree with the Camacho court’s analysis that the focus of the inquiry in a section 1473.7 motion is on the ‘defendant’s own error in . . . not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States.’”

“We also agree with the Camacho court as to the prejudice component of the amended statute. That is, a ‘prejudicial error’ occurs under section 1473.7 when there is a reasonable probability that the person would not have pleaded guilty—and would have risked going to trial (even if only to figuratively throw a ‘Hail Mary’)—had the person known that the guilty plea would result in mandatory and dire immigration consequences.”

“Mejia said that he would have never pleaded guilty had he known and understood ‘that this would harm me in the future.’” “In short, Mejia plainly established his own ‘error’ within the meaning of section 1473.7, subdivision (a).” “As far as the prejudice component, there is contemporaneous evidence in the record to substantiate Mejia’s claim that he would not have pleaded guilty had he known about the mandatory and dire immigration ramifications. Similar to Camacho, there is compelling evidence in the record that at the time of his guilty pleas, Mejia had been living in the United States for eight years, since he was 14 years old. At the time of his guilty pleas, Mejia’s wife and infant son were living in the United States, as well as his mother and six siblings. Indeed, Mejia’s only remaining family tie to Mexico was his father, who passed away just before Mejia entered his guilty pleas. Moreover, as the lower court acknowledged, there are some lingering questions about the strength of the underlying evidence.”

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

http://sos.metnews.com/sos.cgi?0619//G056042

CA Court of Appeals Denies 1473.7 Motion; Finds no IAC

The California Court of Appeals, First Appellate District, has determined that a defense counsel is not required under Padilla to state that a mandatory deportability offense will definitively lead to deportation. “Chen was told the single felony had the potential to cause her removal from the United States and she would not be allowed to come back. This clearly imparts a risk of deportation as required under Padilla and provided Chen notice and the ability to more fully explore, if she wished, the immigration impact of her plea. Moreover, we are unwilling to require counsel to state deportation will be certain because it may not be accurate advice, even in cases where an offense qualifies for mandatory deportation under federal law.”

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

http://sos.metnews.com/sos.cgi?0719//A152754

District Court Disagrees Matter of M-S-

A District Court has disagreed with the Attorney General’s decision in Matter of M-S-, which found all individuals who entered the United States without inspection and subsequently were found to have a credible fear of persecution or torture to be ineligible for bond. The court made the following orders:

1. Conduct bond hearings within seven days of a bond hearing request by a class member, and release any class member whose detention time exceeds that limit;

2. Place the burden of proof on Defendant Department of Homeland Security in those bond hearings to demonstrate why the class member should not be released on bond, parole, or other conditions;

3. Record the bond hearing and produce the recording or verbatim transcript of the hearing upon appeal; and

4. Produce a written decision with particularized determinations of individualized findings at the conclusion of the bond hearing

The order will go into effect on 7/16/19.

The full text of Padilla v. ICE can be found here:

https://www.courthousenews.com/wp-content/uploads/2019/07/bond-asylum.pdf