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The Court of Appeal of California, Second Appellate District, has determined that parolees are not eligible to file motions to vacate under Penal Code 1473.7 because they are still in constructive criminal custody.
The full text of People v. DeJesus can be found here:
The Ninth Circuit has upheld the Board of Immigration Appeals’ denial of a motion to reopen for a petitioner whose drug conviction was vacated by the criminal court.
“Menendez-Gonzalez cites to ten unpublished BIA decisions over a period of about eight years, a period of time when the BIA completed more than 30,000 cases each year. He argues that those citations demonstrate a ‘pattern’ of BIA orders granting sua sponte reopening following vacatur of a conviction, and that this pattern established a sufficiently ‘settled course’ that constrained the BIA’s discretion and obligated it to exercise its sua sponte authority to reopen his case. We do not agree. Among the thousands of decisions made by the BIA over many years, it is not at all remarkable or persuasive to be able to find a few that seem to have elements in common with a current litigant’s case. That is especially true with unpublished dispositions, as they generally include only brief descriptions, if any, of facts that may influence the exercise of discretion. Citation of a few unpublished decisions falls far short of establishing that the BIA has effectively adopted a rule that vacatur of an underlying conviction necessarily requires it to grant reopening sua sponte, effectively eliminating the discretion that the BIA would otherwise have to examine the specifics of an individual petitioner’s case.”
“There have been other decisions over the years in which the BIA declined to exercise its sua sponte authority to reopen after determining that vacatur of the underlying conviction did not constitute an “exceptional circumstance” sufficient to warrant such an extraordinary remedy. Even if we concluded that there was a sufficiently established pattern of granting sua sponte reopening where the underlying conviction had been vacated—and we have not—Menendez-Gonzalez has not established any ‘incorrect legal premise’ in the BIA’s decision not to reopen sua sponte where the petitioner waited years before moving to reopen.”
The full text of Menendez-Gonzalez v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/11/15-73869.pdf
The Ninth Circuit has determined that the Board of Immigration Appeals (Board) applied the wrong legal standard to a motion to reopen when it determined that the movant established only a possibility, rather than a probability, of future torture. The Ninth Circuit held that a movant need only show prima facie eligibility for relief in a motion to reopen. Thus, in the context of a motion to reopen based on ineffective assistance of counsel, the movant need only show that his counsel’s deficient performance may have affected the outcome of the proceedings. Similarly, in the context of a request for reopening to pursue a 212(c) waiver, the Board’s conclusion at the motion to reopen stage that the new hardship evidence would not impact the outcome in the case was too stringent of a standard for reopening.
The full text of Flores v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/18/15-73461.pdf
The Ninth Circuit, sitting en banc,, has determined that an inconclusive record of conviction meets a petitioner’s burden for demonstrating eligibility for relief. The court determined that this outcome is mandated by the Supreme Court’s decision in Moncrieffe v. Holder.
The court left open the question as to who bears the burden of production of all documents in the record of conviction. “To the extent that there may be a predicate factual question, it would be whether all relevant and available documents have been produced. But this question implicates a possible burden of production, which we need not and do not address here, not the burden of proof. Once all relevant and available Shepard documents have been produced, nothing remains inconclusive—the documents either show that the petitioner was convicted of a disqualifying offense under the categorical approach, or they do not. What the documents show is thus a purely legal question, to which the burden of proof is irrelevant.” The court remanded the case to the Board of Immigration Appeals to decide the burden of production issue in the first instance.
The full text of Marinelarena v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/18/14-72003.pdf
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
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
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:
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:
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:
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
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
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
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:
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:
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:
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:
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:
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:
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:
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:
