USCIS Adopts 3 AAO Decision on SIJS Eligibility

U.S. Citizenship and Immigration Services (USCIS) has adopted three Administrative Appeals Office decisions governing eligibility for Special Immigration Juvenile Status (SIJS). The decision make clear that USCIS will expect SIJS orders to cite specific state law provisions governing abuse, neglect, and abandonment, and will undertake an inquiry into whether state court proceedings were brought to address abuse, neglect, or abandonment or solely for the purpose of obtaining immigration status. USCIS has clarified that it will no longer require that the juvenile court have jurisdiction to place the juvenile in the custody of the unfit parent(s) in order to make a qualifying determination regarding the viability of parental reunification.

The text of Matter of D-Y-S-C- can be found here:

https://www.uscis.gov/sites/default/files/USCIS/files/Matter_of_D-Y-S-C-_Adopted_Decision_2019-02_AAO_Oct._11_2019.pdf

The text of Matter of A-O-C- can be found here:

https://www.uscis.gov/sites/default/files/USCIS/files/Matter_of_A-O-C-_Adopted_Decision_2019-03_AAO_Oct._11_2019.pdf

The text of Matter of E-A-L-O- can be found here:

https://www.uscis.gov/sites/default/files/USCIS/files/Matter_of_E-A-L-O-_Adopted_Decision_2019-04_AAO_Oct._11_2019.pdf

Fourth Circuit Finds that Individuals in Withholding Only Proceedings are Entitled to a Bond Hearing

The Fourth Circuit has determined that individuals who are subject to a reinstated removal order, and who are pursuing withholding of removal, are eligible for bond hearings because the removal order is pending until the withholding only proceedings are complete.

The full text of Guzman Chavez, et. al v. Hott can be found here:

http://www.ca4.uscourts.gov/Opinions/186086.P.pdf

Second Circuit finds that NY Conviction for Second‐Degree Assault with a Deadly Weapon or Dangerous Instrument is Crime of Violence

The Second Circuit has determined that a New York conviction for second-degree assault with a deadly weapon or dangerous instrument is a crime of violence aggravated felony because “he deadly weapon or dangerous instrument element makes obvious that the statute requires the use of violent force.”

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

https://cases.justia.com/federal/appellate-courts/ca2/14-1018/14-1018-2019-09-24.pdf?ts=1569335405

Eleventh Circuit Finds that WA Conviction for Delivery of Cocaine is Aggravated Felony

The Eleventh Circuit has determined that a Washington conviction for delivery of cocaine is an aggravated felony. The petitioner offered two arguments as to why the statute of conviction is broader than the definition of a drug trafficking aggravated felony. First, he argues that accomplice liability under the Washington statute is broader than accomplice liability under the federal Act. Second, he argues that the Washington statute proscribes “administering” a controlled substance and the federal Act does not.

The court disagreed, finding that the petitioner could not establish a realistic probability that accomplice liability under the Washington statute extends significantly beyond liability under the federal Act. The court recognized that its decision was at odds with the caselaw with four other circuits. With respect to the issue of administering a controlled substance, the court determined that the federal Act prohibits dispensing a controlled substance, which includes administering a controlled substance.

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

http://media.ca11.uscourts.gov/opinions/pub/files/201812137.pdf

Ninth Circuit finds that Immigration Judges do not Have Authority to Grant U Visa Waivers

The Ninth Circuit has deferred to the Board of Immigration Appeals’ decision in Matter of Khan, finding that Immigration Judges do not have the authority to grant waivers of inadmissibility in connection with U visas. The court determined that the statute at issue is ambiguous. “Congress has not explained how to reconcile its grant of a specific inadmissibility waiver and sole grant of U visa adjudicatory power to the Secretary of Homeland Security, 8 U.S.C. § 1182(d)(14), with the pre-existing inadmissibility waiver power vested in the Attorney General for aliens who are seeking admission, 8 U.S.C. § 1182(d)(3)(A)(ii).” The court then deferred to Khan as a reasonable interpretation of the ambiguous statute.

This decision accords with Third Circuit precedent, but contradicts Seventh and Eleventh Circuit precedent.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/10/24/13-70840.pdf

Sixth Circuit Approves of Two-Step Notice to Trigger Stop Time Rule

The Sixth Circuit has determined that the Immigration Court may “complete” a Notice to Appear by issuing a notice of hearing specifying the time and place of the first removal hearing. Issuance of the notice of hearing is sufficient to trigger the stop time rule for cancellation of removal purposes. The court determined that the statute was unambiguous, making it unnecessary to defer to the Board of Immigration Appeals’ decision in Matter of Mendoza-Hernandez, which reached the same outcome. The court also noted that its decision was at odds with the Ninth Circuit’s decision in Lopez v. Barr.

The full text of Garcia -Romo v. Barr can be found here:

http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0255p-06.pdf

Fifth Circuit Remands for Further Consideration of new Decision in L-E-A-

The Fifth Circuit has remanded an asylum case for further consideration in light of the Attorney General’s recent decision in Matter of L-E-A-. The court acknowledged that the AG’s decision is conflict with case law in the First, Fourth, Sixth, Seventh, Eighth, and Ninth Circuits, but not with any Fifth Circuit precedent.

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

http://www.ca5.uscourts.gov/opinions/pub/17/17-60339-CV0.pdf

BIA Clarifies Standard for Marriage Fraud

The Board of Immigration Appeals has issued a new decision clarifying the standard for denying an I-130 petition based on marriage fraud. The standard of proof necessary to bar the approval of a visa petition based on marriage fraud is substantial and probative evidence. This standard is more than a preponderance of evidence, and closer to (but less than) clear and convincing evidence. Both direct and circumstantial evidence may be considered in determining whether there is substantial and probative evidence of marriage fraud, and circumstantial evidence alone may be sufficient to constitute substantial and probative evidence.

The central question in determining whether a sham marriage exists is whether the parties intended to establish a life together at the time they were married. Such a determination requires an examination of the conduct of the parties before and after the marriage to ascertain their intent, but only to the extent that it bears upon their subjective state of mind at the time they were married.

A sworn statement by the parties admitting that the marriage is fraudulent, that money changed hands, and that the couple did not intend to live together or consummate the marriage is direct evidence of fraud that is substantial and probative. However, an admission or other such direct evidence is not necessary to establish marriage fraud.

Where there are some minor inconsistencies and the documentary evidence is limited, they should be considered in assessing whether there is fraud, but these factors, without more, would not likely be sufficient to satisfy the substantial and probative evidence standard for marriage fraud. Evidence that the parties knowingly and deliberately attempted to mislead or deceive immigration officials regarding their cohabitation, joint finances, or other aspects of the marriage strongly indicate fraud. Detailed reports from on-site visits and field investigations are especially important pieces of evidence that may reveal the presence of fraud. Evidence that the parties have other romantic partners, with whom they may have children, is also a significant consideration, especially when these facts are either not disclosed or are deliberately concealed. Statements from family members, employers, or acquaintances indicating they do not know about the marriage or that the parties told them the marriage is a sham are additional indicia of fraud. Other circumstantial evidence that may support a finding of marriage fraud includes evidence that one or both parties have been filing taxes as single persons during the marriage or otherwise holding themselves out to be single while representing to immigration officials that they are still married. Official Government documents indicating fraud carry more evidentiary weight than informal evidence of a bona fide marriage, such as insurance policies or bank account statements.

Where there is evidence that the petitioner has been married to several beneficiaries, especially if a connection between the petitioner and a former spouse has continued through joint property ownership, finances, or benefits, the likelihood of the beneficiary’s involvement in a fraudulent scheme should be considered. Affidavits alone will generally not be sufficient to overcome evidence of marriage fraud in the record without objective documentary evidence to corroborate the assertions made by the affiants.

The full text of Matter of P. Singh can be found here:

https://www.justice.gov/eoir/page/file/1197521/download

Eleventh Circuit Addresses Jurisdictional Challenge to NTA Missing Time and Date of Hearing

The Eleventh Circuit has determined that a challenge to a Notice to Appear missing the time and date of the first removal hearing is a claim-processing challenge, not a jurisdictional challenge. As such, the claim needed to be raised before the agency.

The court rejected the agency’s asylum analysis. The Immigration Judge had determined that one central reason for the Gulf Cartel’s persecution of the petitioner was to collect on a debt owed by his father-in-law, but then stated that the family relationship was merely “incidental” to the persecution. The court disagreed, stating that “it is impossible to disentangle his relationship to his father-in-law from the Gulf Cartel’s pecuniary motives: they are two sides of the same coin. The record is replete with evidence that the Gulf Cartel sought out and continuously extorted Mr. Perez-Sanchez because of his father-in-law’s past history with the cartel.” “Absent the familial relationship between Mr. Perez-Sanchez and Mr. Martinez-Carasco, the cartel would never have hunted him and his partner down to begin with or continued persecuting them for months.”

The full text of Perez-Sanchez v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201812578.pdf

Ninth Circuit Determines that Federal Courts Lack Jurisdiction to Review Denial of National Interest Waivers

The Ninth Circuit has determined that the federal district courts lack jurisdiction to review U.S. Citizenship and Immigration Services’ denial of a national interest waiver because such decisions are within the discretion of the Secretary of Homeland Security. Applicants can still raise constitutional claims.

The full text of Poursina v. USCIS can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/28/17-16579.pdf

Ninth Circuit finds that Federal Conviction for Second-Degree Murder is not Crime of Violence

The Ninth Circuit has determined that a conviction for second-degree murder under 18 U.S.C. §§ 1111 and 1153 is not a crime of violence under federal sentencing law because it can be committed recklessly (with a depraved heart mental state). Given the similar definitions of a crime of violence in the federal sentencing context and the immigration context, this case may have persuasive value in immigration litigation.

The full text of United State v. Begay can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/19/14-10080.pdf

Ninth Circuit Affirms Right to Counsel in Administrative Removal Proceedings for non-LPR Convicted of Aggravated Felony

The Ninth Circuit has determined that 8 U.S.C. § 1228, which governs expedited removal proceedings for noncitizens convicted of committing aggravated felonies, and through which non-citizens can request reasonable fear interviews, explicitly provides that non-citizens have the privilege of being represented, at no expense to the government, by counsel. As such, the Immigration Judge erred by not getting a waiver of the petitioner’s right to counsel during the review of a negative reasonable fear determination. The petitioner was not required to show prejudice from the violation of his statutory right to counsel to prevail on his due process claim.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/20/16-72982.pdf

An amended opinion, published on December 26, 2019, can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/12/26/16-72982.pdf

Ninth Circuit Reverses Denial of Continuance

The Ninth Circuit has reversed the agency’s denial of a continuance to allow the petitioner to update his fingerprints, in light of his attorney’s erroneous advice that his fingerprints were still up-to-date, even though the judge had advised the petitioner at the prior hearing that he needed to update his fingerprints.

“[I]f an alien fails to provide updated fingerprints to DHS ‘because of an attorney,’ the alien’s reliance on the lawyer’s advice may constitute the requisite ‘good cause’ for a continuance under 8 C.F.R. § 1003.29. Here, because the lawyer’s bad advice post-dated the IJ’s instructions, Petitioner’s reliance on the later advice was especially reasonable. For example, the fingerprint requirements might have changed since his last hearing, including by lengthening the period during which fingerprints were valid or by allowing the California Department of Justice to send fingerprints to DHS. If the lawyer’s bad advice had preceded the IJ’s instructions, we might reach a different result.”

The full text of Pleitez-Lopez v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/23/16-73656.pdf

Ninth CIrcuit Finds that NV Conviction for Attempted Battery with Substantial Bodily Harm is Crime of Violence

The Ninth Circuit has determined that a Nevada conviction for attempted battery with substantial bodily harm is a crime of violence under the sentencing guidelines because it requires the defendant to have a specific intent both to commit battery and to bring about substantial bodily harm. Nevada defines “substantial bodily harm” as either “(1) [b]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ; or (2) [p]rolonged physical pain.”

“When someone intends to inflict prolonged pain, even relatively minor pain, it is highly improbable that they would choose to do so through the use of nonviolent force, which could easily fail to accomplish their goal. And for the same reason, it is equally improbable that Nevada prosecutors would be able to secure convictions for attempted battery with substantial bodily harm in cases in which the defendant tried to use only a touch or other nonviolent force.”

Given the similar definitions of a crime of violence under the sentencing guidelines and in immigration law, this decision could have persuasive impact in immigration litigation.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/26/18-10116.pdf

Ninth Circuit Defers to BIA's Whistleblowing Framework

The Ninth Circuit has deferred to the Board of Immigration Appeals’ (Board) decision in Matter of N-M-, in which the Board developed a three-factor test for application for asylum based on whistleblowing activities. The three factors are: (1) whether and to what extent the alien engaged in activities that could be perceived as expressions of anticorruption beliefs; (2) any direct or circumstantial evidence that the alleged persecutor was motivated by the alien’s perceived or actual anticorruption beliefs, and (3) evidence regarding the pervasiveness of government corruption, as well as whether there are direct ties between the corrupt elements and higher level officials.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/27/15-73940.pdf

Ninth Circuit Withdraws Opinion in Lopez-Aguilar

The Ninth Circuit has granted a motion for panel rehearing and withdrawn its opinion in Lopez-Aguilar v. Barr, in which it determined that an Oregon third-degree robbery conviction is a theft offense.

My original blog post on Lopez-Aguilar can be found here:

http://www.sabrinadamast.com/journal/2019/4/27/ninth-circuit-finds-that-or-3d-deg-robbery-conviction-is-theft-offense

The order granting the motion for rehearing can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/29/17-73153.pdf

Ninth Circuit Finds that MN Aiding & Abetting Simple Robbery Conviction is Violent Felony

The Ninth Circuit has determined that a Minnesota conviction for aiding and abetting simple robbery is a violent felony under the Armed Career Criminal Act (ACCA) because the statute requires the defendant to use the amount of force necessary to overcome a victim’s resistance. Given the similarity between the definition of a violent felony under the ACCA and a crime of violence in the immigration context, this decision could have persuasive value in immigration litigation.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/03/17-35563.pdf

Ninth Circuit Rules on Rights of Derivative Beneficiaries to Receive Review of Denied I-829

The Ninth Circuit has determined that derivative beneficiaries of an alien entrepreneur in the immigrant investor program, who receive conditional legal permanent resident status, are entitled to the same review rights in removal proceedings as the alien entrepreneur of a denied petition to remove the conditions on their residence. As such, the agency erred by refusing the request of the daughter of the entrepreneur to review the denial of the petition to remove the conditions, when the entrepreneur had been removed in absentia, ant thus, could not make a request for review himself.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/04/16-71292.pdf

Ninth Circuit Limits Circumstances in which Minor's OSC must be Served on Adult

The Ninth Circuit has limited the circumstances in which an Order to Show Cause served on a minor must also be served on a responsible adult. Previously, the court had held in Flores-Chavez v. Ashcroft that when immigration authorities detain a juvenile, and subsequently release the juvenile to a responsible adult, the Order to Show Cause must also be served on that adult. However, the court determined that the same rule does not apply when the minor was never detained, files for asylum, and is subsequently served with an Order to Show Cause.

“Nonetheless, the calculation differs here, and not just because Petitioner is slightly older than Flores-Chavez was. Petitioner himself set in motion the procedures leading to his hearing by filing an affirmative asylum application and by appearing before an asylum officer. These facts suggest that the risk of error in Petitioner’s situation is less than the risk of error in Flores-Chavez’ situation. More importantly, no adult ever entered an agreement with the government to assume responsibility for Petitioner. It is unclear with whom Petitioner lived at the time of his deportation hearing, including whether anyone at his residence was over the age of 18. It is equally unclear that notice to an adult living at his residence (if there was one) would have added any safeguards to the process, because we cannot know whether that adult would have been willing to take the kind of responsibility that was statutorily assigned in Flores-Chavez. Without researching the details of every minor’s situation, it is impossible to know whether a particular minor over the age of 14 resides with an adult and if so, whether serving the OSC on that adult will be any more effective in ensuring the minor’s attendance at the hearing than serving notice on the minor.” “Requiring the government to provide notice to a responsible adult living with a never-detained juvenile over the age of 14 assumes that there is such a person and that the person can be identified.” “Balancing all the factors, the burden on the government outweighs the interest of never-detained minors over the age of 14, at least those who have filed an affirmative request for relief.”

The full text of Cruz Pleitez v. Barr can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/18/15-72876.pdf

Ninth Circuit Finds that OR First-Degree Armed Robbery is not Violent Felony

The Ninth Circuit has determined that an Oregon conviction for first-degree armed robbery is not a violent felony under the Armed Career Criminal Act (ACCA) because the statute does not require the defendant to overcome resistance by the victim through the use of force, but rather, the victim need not feel much of anything during the offense. In addition, although the statute requires the defendant to possess a deadly weapon during the commission of the robbery, the statute does not require the use of the weapon or that the defendant make any representations about the weapon. As such, the court found that the mere possession of the deadly weapon did not amount to the threatened or attempted use of violent force.

The court also assumed that the statute is divisible between offenses where the defendant “Is armed with a deadly weapon” and offenses where the defendant “uses or attempts to use a dangerous weapon.” The records did not specify under which sub-statute the petitioner was convicted in this matter.

Given the similarity between the definition of a violent felony under the ACCA and the definition of a crime of violence in the immigration context, this case may have persuasive value in immigration litigation.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/19/18-35515.pdf