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New Case Law
The Eighth Circuit has determined that a Nebraska conviction for theft by receiving stolen property is a crime involving moral turpitude because the statute requires an intent to permanently deprive the owner of the benefits of ownership of the property.
The full text of Reyna v. Barr can be found here:
The Fifth Circuit has determined that a Texas conviction for possession of a controlled substance with intent to deliver is a controlled substance violation. In so doing, the court rejected the petitioner’s claim that the statute is overbroad because it includes offers to sell counterfeit drugs. Instead, the court found that a defendant must offer to sell a real drug, even if the actual drug delivered is counterfeit.
The full text of Olguin Padilla v. Barr can be found here:
The Fourth Circuit has declined to follow Matter of Castro-Tum and has instead determined that Immigration Judges clearly have the authority to administratively close cases.
The full text of Zuniga Romero v. Barr can be found here:
The Third Circuit has determined that the laws governing transmission of citizenship to a child born out of wedlock to a U.S.-citizen father, whose mother is deceased, and who was born in a jurisdiction where the death of the mother legally precludes the father from legitimizing the child, violate equal protection.
Petitioner Jose Francisco Tineo was born in the Dominican Republic to unwed noncitizen parents who never married. His father moved to the United States and naturalized. His noncitizen mother soon after passed away. At the time, under the law of either his or his father’s residence or domicile—the Dominican Republic and New York—legitimation could only occur if his birth parents married. Under the immigration laws, a naturalized mother can transmit her citizenship to her out-of-wedlock child, regardless of whether the father is alive; whereas a naturalized father in the same position has the additional requirement of having to legitimate the child in order to transmit his citizenship. Thus, the petitioner in this matter was left unable to receive citizenship from his father because his mother was deceased, eliminating the only avenue of legitimation in the Dominican Republic.
The court declared that the petitioner is, in fact, a U.S. citizen, by applying the standards applicable to children born out of wedlock to U.S.-citizen mothers to his situation.
The full text of Tineo v. Attorney General can be found here:
The Third Circuit has remanded a case in which the agency determined a fraud conviction resulting in losses to the victims in excess of $1,000,000 was a particularly serious crime without considering whether the elements of the offense bring the conviction within the ambit of a particularly serious crime. The court also determined that the Immigration Judge had not specified what corroborating evidence she believed was missing, nor given the applicant a chance to obtain that evidence. This error also required remand.
The full text of Luziga v. Attorney General can be found here:
The Second Circuit has determined that once an applicant for asylum demonstrates changed circumstances related to some aspect of her asylum claim - thus, excusing her from compliance with the one-year filing deadline - the immigration court must consider all aspects of her asylum claim, not just those related to the changed circumstances.
The full text of Yang v. Barr can be found here:
The First Circuit has determined that the procedural requirements for an ineffective assistance of counsel claim outlined in Matter of Lozada apply to a claim of ineffective assistance of counsel made on direct appeal, as well as to ineffective assistance of counsel claims made in motions to reopen.
The full text of Ferreira v. Barr can be found here:
http://media.ca1.uscourts.gov/pdf.opinions/18-2211P-01A.pdf
The First Circuit has remanded a motion to reopen filed by an indigenous Guatemalan seeking asylum. The court concluded that conditions had worsened for indigenous activists, and that the deportation of a military leader responsible for atrocities against the indigenous community (including several of the petitioner’s relatives) also constituted a changed condition.
The full text of Perez-Tino v. Barr can be found here:
The California Court of Appeal, Fourth Appellate Decision, has issued a decision addressing the due diligence requirements of a motion to vacate under Penal Code 1473.7. The trial court denied the motion without the defendant or counsel present, finding no diligence given a 12-year gap between the conviction and the filing of the motion to vacate. The appellate court disagreed, finding that the motion was filed 7 months after Penal Code 1473.7 was enacted, and one month after the appellate court advised the defendant (in a decision denying an appeal of the denial of an expungement in the case) that he could seek relief under 1473.7.
The appellate court also determined that the trial court should have appointed counsel for the defendant, who was unrepresented and detained at the time of the court’s hearing on the motion. “We construe amended section 1473.3 to provide the right to appointed counsel where an indigent moving party has set forth factual allegations stating a prima facie case for entitlement to relief under the statute.”
The full text of People v. Rodriguez can be found here:
U.S. Citizenship and Immigration Services has adopted the Administrative Appeals Office’s decision in Matter of H-G-G-. This decision reaffirms the position of the Department of Homeland Security that Temporary Protected Status (TPS) recipients are considered as being in and maintaining lawful status as a nonimmigrant only during the period that TPS is in effect. A grant of TPS does not confer an admission, constructive or otherwise, nor does it cure or otherwise impact any previous failure to maintain continuously a lawful status. Matter of H-G-G- further clarifies because the U.S. Courts of Appeals for the Sixth and Ninth Circuits have held that a grant of TPS supplies the requisite admission for purposes of adjustment, USCIS personnel will follow those decisions only in those respective jurisdictions, and on that discrete issue. However, on the question of whether a grant of TPS cures a prior unlawful status, USCIS personnel will apply the holding in Matter of H-G-G- universally.
Specifically, USCIS holds that the TPS statute “allows applicants who are otherwise eligible to adjust status, but whose original nonimmigrant status lapsed during the period of their TPS, to avoid the bar prescribed at section 245(c)(2) of the Act for failure to maintain continuously their lawful nonimmigrant status since entry into the United States.” “Stated another way, the plain interplay of the statutory provisions ensures that those who were eligible to adjust their status before receiving TPS remain so; it does not mean that persons ineligible for adjustment due to prior immigration violations have that ineligibility waived by a grant of TPS.”
Finally, “on the question of whether a grant of TPS cures the bar at section 245(c)(2) of the Act for failure to continuously maintain lawful status since entry, both the Ninth and Sixth Circuits’ statements were dicta only, as that bar did not apply to the individuals before them. Accordingly, DHS will apply the contrary holding in this decision on this issue universally.”
The adoption announcement and text of Matter of H-G-G- can be found here:
uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2019/Matter_of_H-G-G-_Adopted_Decision_2019-01_AAO_July_31_2019.pdf
The Attorney General has revised the Board of Immigration Appeals’ prior decision finding that family qualifies as a particular social group for asylum and withholding of removal purposes. Instead, the Attorney General stated that “most nuclear families are not inherently socially distinct.” “When an applicant proposes a group composed of a specific family unit, he must show that his proposed group has some greater meaning in society. It is not enough that the family be set apart in the eye of the persecutor, because it is the perception of the relevant society—rather than the perception of the alien’s actual or potential persecutors—that matters.”
“If an applicant claims persecution based on membership in his father’s immediate family, then the adjudicator must ask whether that specific family is ‘set apart, or distinct, from other persons within the society in some significant way.’ It is not sufficient to observe that the applicant’s society (or societies in general) place great significance on the concept of the family. If this were the case, virtually everyone in that society would be a member of a cognizable particular social group. The fact that ‘nuclear families’ or some other widely recognized family unit generally carry societal importance says nothing about whether a specific nuclear family would be ‘recognizable by society at large.’”
The full text of Matter of L-E-A- can be found here:
The Board of Immigration Appeals has determined that an Immigration Judge may deny an application for Temporary Protected Status on discretionary grounds.
The full text of Matter of D-A-C can be found here:
The Eleventh Circuit has remanded a case in which asylum was denied to a Pakistani Ahmadi Muslim. The court noted that the Pakistani penal code bans Ahmadis from preaching or propagating their religious beliefs. “The record indicates that Pakistan’s anti-blasphemy laws prohibit Ahmadis from professing core tenets of their faith by making it a crime to defile the Prophet Muhammad and by interpreting a central tenet of the Ahmadi faith as doing so. In fact, the record suggests that both the Pakistani state and the public use the anti-blasphemy laws to specifically target, harass, and abuse Ahmadis. Though Ahmadis constitute less than five percent of the population, they represent nearly forty percent of those arrested for blasphemy.” Pakistan prevents the construction of mosques by Ahmadis, prohibit the publication of their religious texts, and intimidate them at the voting polls. where they are kept on a separate voter roll.
“his evidence does not compel a finding of persecution, though the Board is certainly free to conclude as much on remand. But the evidence must be wrestled with. The Board can explain why it accords certain highly relevant evidence less weight than other evidence—or why it discredits that evidence altogether. Or it can explain why the evidence does not meet the legal standard of religious persecution.”
The full text of Ali v. Attorney General can be found here:
http://media.ca11.uscourts.gov/opinions/pub/files/201714332.pdf
The petitioner had been granted asylum by an Immigration Judge, and subsequently applied for adjustment of status before U.S. Citizenship and Immigration Services. His adjustment application was denied on the ground that he had provided material support to a terrorist organization. The petitioner appealed that decision to federal court, arguing that the material support bar also applies to asylum cases, and as such, the grant of asylum meant that the Immigration Judge must have previously determined that he had not provided material support to a terrorist organization. The Ninth Circuit disagreed, finding that the question of whether the petitioner was inadmissible on terrorism-related grounds was never raised, contested, or submitted for determination at his asylum proceeding, and thus, the doctrine of issue preclusion did not apply. Notably, the Tier III terrorism ground did not exist at the time of the asylum hearing.
The full text of Janjua v. Neufeld can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/09/17-16558.pdf
The Ninth Circuit has deferred to the Board of Immigration Appeals’ decision in Matter of Gonzalez Romo, finding that a lawful permanent resident convicted of solicitation to possess marijuana for sale was inadmissible upon presentation at a port of entry under section 212(a)(2)(A)(i)(I) (crime involving moral turpitude), even though that section refers only to conspiracy or attempt to commit a crime involving moral turpitude, not solicitation of a crime involving moral turpitude. The court relief on the absurdity of making a lawful permanent resident deportable under the corresponding crime involving moral turpitude ground for solicitation to commit a crime involving moral turpitude, but not rendering them inadmissible for the conviction.
The full text of Romo v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/14/16-71559.pdf
The court determined that an Oregon conviction for strangulation constitutes a crime of violence. The court found no evidence that Oregon state courts had extended the statute to include non-violent conduct. “It is difficult to imagine how a defendant could apply enough force to impede normal functions without exerting physical force that is ‘capable of hurting or causing injury.’”
The panel also concluded that the BIA misapplied the relevant factors for determining in two key respects: 1) it failed to engage in a case-specific factual analysis of the circumstances and underlying facts of the conviction; and 2) it erroneously looked at the potential penalty for a violation, but the relevant factor instructs the agency to examine the type of sentence imposed.
The full text of Flores-Vega v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/02/14-70690.pdf
The Eighth Circuit has determined that an Arkansas conviction for aggravated assault and a South Carolina conviction for pointing a firearm at another person are both crimes of violence for federal sentencing purposes. With respect to the Arkansas aggravated assault conviction, the court held that the statute is divisible, and subsection (a)(1) is not a crime of violence. However, subsection (a)(2), which criminalizes displaying a firearm in such a manner that creates a substantial danger of death or serious physical injury to another person, necessarily involves the threatened use of violent force. With respect to the South Carolina firearms conviction, the court deferred to prior precedent finding that that pointing a gun at another person qualifies as a crime of violence.
The full text of United States v. Hataway can be found here:
The Eighth Circuit, interpreting Supreme Court precedent, determined that “burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation” qualifies as generic burglary. As such, it reversed its prior precedent and determined that an Arkansas residential burglary conviction, which includes burglary of certain types of vehicles, also matches the definition of generic burglary. Given the similar definitions of generic burglary in the criminal and immigration contexts, this case could have persuasive impact in the immigration context.
The full text of United States v. Sims can be found here:
The Eighth Circuit has reversed an adverse credibility determination for a Chinese Christian asylum seeker. The court noted that “credibility determinations are not properly based on nit-picking of translated answers regarding obscure religious trivia.” “In the context of religious persecution, interrogations designed to trip up new converts or those without formal theological training fail to ‘bear a legitimate nexus’ to such determinations.”
The full text of Tian v. Barr can be found here:
The Eighth Circuit has determined that an Iowa statute which criminalizes possessing a forged instrument with the intent to perpetuate a fraud or with the knowledge his possession was facilitating a fraud, qualifies as a forgery-related aggravated felony. The court also determined that a reinstatement order is not final if a petitioner requests a reasonable fear interview. The order became final once the Immigration Judge affirmed the Asylum Officer’s negative reasonable fear determination. Finally, the court acknowledged that the Department of Homeland Security violated the petitioner’s due process rights by issuing a Final Administrative Removal Order (FARO) before the deadline for him to respond to the Notice to Intent to Issue the FARO had passed, but found that he could not establish any prejudice from this violation.
The full text of Cardoza Salazar v Barr can be found here:
