Ninth Circuit Finds that Denial of U Visa is Challengeable in Federal Court

The Ninth Circuit has determined that the denial of a U visa is challengeable in federal district court under the Administrative Procedures Act. With respect to the petitioner’s claim that USCIS failed to consider all credible evidence, the Ninth Circuit held the appropriate standard of review on remand to the District Court would be whether USCIS acted in a manner that was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. With respect to his claim that Washington’s felony harassment crime is a qualifying crime for U visa purposes, the Court left it to the District Court in the first instance to determine the appropriate standard of review. The petitioner’s challenge to USCIS’s factual finding that felony harassment was not detected by law enforcement would also be reviewed for an abuse of discretion or substantial evidence.

The full text of Perez Perez v. Wolf can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/22/18-35123.pdf

Ninth Circuit Finds that Federal Conviction for Assault Resulting in Serious Bodily Injury is Crime of Violence

The Ninth Circuit has determined that federal convictions for assault resulting in serious bodily injury qualify as crimes of violence for federal sentencing purposes. “The least violent form of each offense is the threat to use violent physical force through the use of a dangerous weapon that reasonably caused a victim to fear immediate bodily injury, which u necessarily entails at least the ‘threatened use of violent physical force’ to qualify the offenses as crimes of violence.” Given the similar definition of a crime of violence for federal sentencing purposes and immigration purposes, this case could have persuasive impact in the immigration context.

The full text of U.S. v. Gobert can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/26/17-35970.pdf

Ninth Circuit Finds Petitioner Eligible for 237(a)(1)(H) Waiver Even Though He Failed to Complete Two-Year Home Residency Requirement

The Ninth Circuit has determined that a lawful permanent resident who failed to complete the two-year home residency requirement as a J visa holder prior to obtaining his residency remains eligible for a 237(a)(1)(H) waiver. “Section 212(e) does not state that noncitizens subject to its residency requirement are not “admissible” to the United States. Rather, it provides that they are not “eligible” for particular forms of admission. Other forms of admission, not specifically barred by the statute, remain available. For example, § 212(e) does not prohibit admission as a tourist or business visitor under 8 U.S.C. § 1101(a)(15)(B).” “Notwithstanding his failure to satisfy or receive a waiver of the two-year residency requirement, Petitioner was admissible under several provisions of 8 U.S.C. § 1101(a)(15).”

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/25/13-71916.pdf

Ninth Circuit Finds that Frivolous Asylum Application Bars 237(a)(1)(H) Waiver

The Ninth Circuit finds that the filing of a frivolous asylum application prohibits an applicant from later seeking a waiver of inadmissibility under section 237(a)(1)(H) of the INA. The petitioner filed a frivolous asylum application in 1999 under a false name, and was subsequently granted asylum and permanent residency under his real name. He was later placed in removal proceedings, and sought a waiver under section 237(a)(1)(H), but the agency determined that the filing of a frivolous asylum application in 1999 barred from seeking the waiver. The Ninth Circuit agreed.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/25/17-72231.pdf

Ninth Circuit Prohibits Reinstatement of Order that Was Unlawful at Time of Execution

The Ninth Circuit has prohibited the reinstatement of a removal order that was no longer lawful at the time of its execution. In the instant case, the petitioner was convicted in 1991 of possession of a controlled substance. He was ordered removed in 1998, but he received an expungement in 1999, which eliminated the conviction under the Federal First Offenders Act. He was physically deported in 2008. He returned, and ICE sought to reinstate the 1998 order. The Ninth Circuit found that because the removal order was no longer lawful in 2008 when it was executed, the petitioner suffered a gross miscarriage of justice, prohibiting the reinstatement of the order.

“Collateral attack is largely reserved for cases in which the removal order could not have withstood judicial scrutiny under the law in effect at the time of either its issuance or its execution.” “Vega-Anguiano [] had his conviction expunged prior to—indeed, many years prior to—the execution of his removal order in 2008. As we noted above, and as the government has conceded, the expungement eliminated the legal basis for his removal order because Vega-Anguiano met the requirements of the Federal First Offender Act. Thus, by the time of Vega-Anguiano’s removal in 2008, his removal order lacked a valid legal basis.” In addition, the Court determined that “there is no diligence requirement that limits the time during which a collateral attack on that deportation or removal order may be made based on a showing of gross miscarriage of justice.”

The full text of Vega-Anguiano v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/19/15-72999.pdf

Ninth Circuit Finds that Hawaii First-Degree Unlawful Imprisonment Conviction is CIMT

The Ninth Circuit has determined that a Hawaii conviction for first-degree unlawful imprisonment is a crime involving moral turpitude. The statute requires, at a minimum, that the defendant knowingly restrain another person under circumstances that the defendant knows will expose the person to a risk of serious bodily injury. The court concluded that the combination of the harm and state of mind required by the Hawaii statute results in conduct that is morally turpitudinous. “Even though the offense required a state of mind of only recklessness, we found that the creation of a substantial, actual risk of imminent death is sufficiently reprehensible” to establish a CIMT.’” The court also noted that both the Board of Immigration Appeals and the iInth Circuit “have been unable to establish any coherent criteria for determining which crimes fall within that classification and which crimes do not.”

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/18/16-70918.pdf

Ninth Circuit Finds that Reinstated Order Cannot be Reopened

The Ninth Circuit has determined that the reinstatement of a removal order acts as a permanent bar to reopening that order. The court, however, recognized that the reinstatement bar does not affect a petitioner’s ability to rescind an in absentia order based on lack of notice. “Forfeiture of the right to reopen under § 1229a(c)(7) is part of the less favorable legal regime to which Padilla is now subject by unlawfully reentering and remaining in the United States despite his prior removal order.”

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/13/16-72378.pdf

Ninth Circuit Finds Jurisdiction over Prematurely-Filed PFR; Addresses Proper Notice of Amended NTA

The Ninth Circuit has determined that absent any prejudice to the Government, a premature petition for review of an immigration order may ripen upon final disposition of the case by the Board of Immigration Appeals (Board). In the instant case, the petitioner filed a motion to reopen with the Immigration Judge (IJ), which the IJ denied, and the petitioner appealed to the Board. Before the Board issued its decision, the petitioner filed a petition for review with the Ninth Circuit. The Board issued a decision dismissing the appeal before it approximately two months later. The court concluded that “the jurisdictional defect in filing the petition was cured by a final judgment from the [Board] before this court had considered any aspect of the petition, and the Government has shown no prejudice resulting from the premature filing.”

In addition, the court determined that the Board abused its discretion in denying an appeal of an IJ denial of a motion to reopen, where the IJ in the underlying removal proceeding ordered the petitioner removed in absentia on the basis of an amended notice to appear of which she did not receive proper notice. “The written notice requirement of an in absentia removal order applies both to the charges and conduct alleged and the date and time of the removal hearing.” “Because the record provides no evidence of proper service of the amended NTA, as required by due process, and the IJ ordered Diaz Martinez removed based on admissions to the charges for which she did not receive notice, the in absentia removal order was not supported by substantial evidence.” “The amended NTA, however, replaced the underlying factual allegations that the Government lodged against her.”

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/10/30/17-72186.pdf

Eighth Circuit finds that Iowa Conviction for Willful Injury Causing Bodily Harm is Crime of Violence

The Eighth Circuit has determined that an Iowa conviction for willful injury causing bodily harm is a crime of violence because “[o]ne cannot cause bodily injury to another without using the force capable of producing that injury.”

The full text of Jima v. Barr can be found here:
https://ecf.ca8.uscourts.gov/opndir/19/11/191104P.pdf

Eighth Circuit finds that Iowa Conviction for Assault with Intent to Inflict Serious Injury is Crime of Violence

The Eighth Circuit has determined that an Iowa conviction for assault with intent to inflict serious injury is a crime of violence under the sentencing guidelines because it necessarily involved the use, attempted use, or threatened use of physical force. Given the similarity between the definition of a crime of violence in the federal sentencing law and the immigration law, this case could have persuasive impact in the immigration context.

The full text of U.S. v. Quigley can be found here:

https://ecf.ca8.uscourts.gov/opndir/19/11/183317P.pdf

Seventh Circuit Rejects Equal Protection Claim to Citizenship Statute

The petitioner was born abroad to a U.S. citizen mother and a foreign national father. He challenged the constitutionality of the citizenship statute that required his mother to have resided in the United States for ten years prior to his birth in order to transmit citizenship to him. The petitioner “maintains that there is no rational basis on which to distinguish between him—a minor child, born abroad to a United States citizen, who lawfully entered the Country and lived in the custody of that United States citizen parent in the United States—and a lawful permanent resident minor child living in the custody of a lawful permanent resident parent when that parent naturalizes.” The Seventh Circuit disagreed, finding that the statute “bears a rational relation to the Government’s legitimate interest in ensuring that children born abroad who become citizens have ties to the United States.”

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D11-07/C:19-1728:J:Ripple:aut:T:fnOp:N:2426953:S:0

Fifth Circuit Dismisses Appeal of Motion to Reopen Visa Waiver Overstay Removal Order

The petitioner lasted entered the United States using the Visa Waiver Program (VWP). Use of the VWP requires a traveler to waive any right to contest a removal order except through a claim for asylum. The petitioner remained in the United States beyond the 90 day authorized period, and ICE issued a removal order against him. He later filed a motion to reopen that order, which ICE denied. He then filed a Petition for Review of the denial.

The Fifth Circuit dismissed, find that the petition was premised on the denial of a motion that the petitioner was not entitled to file in the first instance.

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

http://www.ca5.uscourts.gov/opinions/pub/18/18-60244-CV0.pdf

Fourth Circuit Finds No Jurisdiction for PFR

The Fourth Circuit has determined there is no jurisdiction for federal review when the Board of Immigration Appeals (Board) remands a case for background checks pursuant to a grant of withholding of removal. The petitioner’s asylum application was denied on firm resettlement grounds, but he was granted withholding of removal. He appealed to the Board, which affirmed the denial of asylum, and remanded for background checks. The petitioner appealed to the Fourth Circuit. Subsequently, the Immigration Judge again entered a removal order and granted withholding of removal, and the petitioner again appealed to the Board. That appeal remains pending.

The Fourth Circuit determined there was no final removal order at the time the petition for review was filed because the question of whether the petitioner was eligible for withholding of removal had yet to be answered and remained entirely contingent on the results of his background checks, dnd because the IJ retained authority on remand to reconsider any other issues presented by the case and grant appropriate relief.

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

http://www.ca4.uscourts.gov/opinions/181904.P.pdf

Second Circuit finds that CT First-Degree Robbery Conviction is Crime of Violence

The Second Circuit has determined that a Connecticut first-degree robbery conviction qualifies as a crime of violence. It requires the threatened use of physical force because even the mere display of a firearm during a larceny or immediately thereafter necessarily implies a threat to commit violence.

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

http://www.ca2.uscourts.gov/decisions/isysquery/791e9ac0-59fe-4e6d-bb0e-99c1d4aafca5/22/doc/17-514_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/791e9ac0-59fe-4e6d-bb0e-99c1d4aafca5/22/hilite/

Second Circuit Finds Egregious Fourth Amendment Violations by ICE

The petitioner was arrested during an ICE raid that was perceived to be conducted as retaliation for the city of New Haven, CT issuing IDs to undocumented immigrants. The Immigration Judge relied on the following three conclusions to find that there was no egregious Fourth Amendment violation during the arrest: 1) he arrived at the site of an ongoing law enforcement operation driving a vehicle owned by another individual, (2) he did not have identification on him, and (3) he was unable to speak English. The Second Circuit disagreed, noting that “Rodriguez arrived at 546 Woodward Avenue to provide documentation from the vehicle so that his boss could respond to law enforcement inquiries. He also gave a reasonable explanation as to his lack of identification: He had rushed out of bed and into the car in order to help his boss as quickly as possible. Lastly, while Rodriguez is not proficient in English, this ‘same characteristic applies to a sizable portion of individuals lawfully present in this country.’”

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

http://www.ca2.uscourts.gov/decisions/isysquery/791e9ac0-59fe-4e6d-bb0e-99c1d4aafca5/5/doc/15-3728_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/791e9ac0-59fe-4e6d-bb0e-99c1d4aafca5/5/hilite/

First Circuit Remands Family-Based PSG Asylum Claim

The First Circuit has remanded an asylum claim in which the petitioner alleged that his paternal grandparents persecuted him because of their hatred for his mother.

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

http://media.ca1.uscourts.gov/pdf.opinions/19-1084P-01A.pdf

BIA Finds that OR Menacing Conviction is a CIMT

The Board of Immigration Appeals (Board) has determined that an Oregon conviction for menacing is a crime involving moral turpitude. In so doing, the Board has stated that the element of actual inflicted fear is not necessary to determine that a crime categorically involves moral turpitude where the statute requires evil or malicious intent, and the level of threatened harm, or magnitude of menace implicit in the threat, is serious and immediate.

The full text of Matter of J-G-P- can be found here:

https://www.justice.gov/eoir/file/1208861/download

BIA Finds that CA Witness Tampering Conviction is an Aggravated Felony

The Board of Immigration Appeals (Board) has determined that a California conviction for witness tampering categorically matches the definition of an obstruction of justice aggravated felony because it requires interference with an ongoing or reasonably foreseeable future investigation. The Board also determined that it could permissibly apply its definition of an obstruction of justice offense from Matter of Valenzuela Gallardo II retroactively because the definition of an obstruction of justice offense has remained uncertain throughout the years of litigation between the Board and the Ninth Circuit, and as such, do not represent an abrupt departure from well-settled policy.

The full text of Matter of Cordero-Garcia can be found here:

https://www.justice.gov/eoir/page/file/1210991/download

AG Creates Presumption of a Lack Good Moral Character for 2 DUIs

The Attorney General has determined that a person with two DUI convictions during the good moral character period presumptively lacks good moral character and is ineligible for cancellation of removal for non-lawful permanent residents.

“There could be an unusual case in which an alien can establish that the multiple convictions were an aberration and can show good moral character. To do so, the respondent must overcome the strong evidence attributable to those multiple convictions by establishing good moral character. See 8 C.F.R. § 1240.8(d). But a respondent may not make this showing merely by demonstrating that he reformed himself after those convictions by, for instance, addressing a problem with substance abuse. The statute requires that good moral character be shown over the continuous period of not less than 10 years immediately preceding’ the application. INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1). The alien thus must show that he had good moral character even during the period within which he committed the DUI offenses. An alien’s efforts to reform or rehabilitate himself after multiple DUI convictions are commendable, but they do not themselves demonstrate good moral character during the period that includes the convictions. Absent substantial relevant and credible contrary evidence, multiple DUI convictions require that the immigration judge deny cancellation of removal.”

The full text of Matter of Castillo-Perez can be found here:

https://www.justice.gov/eoir/page/file/1213196/download

AG Reverses Agency Precedent on Sentencing Modifications

The Attorney General has reversed 18 years of agency precedent and determined that sentencing modifications will no longer be effective for immigration purposes unless they are premised on legal error in the underlying criminal proceedings. The Attorney General also overruled two cases that held that the Full Faith and Credit Clause applies to agencies, such as the Immigration Courts and the Board of Immigration Appeals. Notably, the Attorney General left in place current federal case law dictating which party bears the burden of proof of establishing the reason for a sentence modification.

The full text of Matter of Thompson and Matter of Thomas can be found here:

https://www.justice.gov/eoir/page/file/1213201/download