Third Circuit Disagrees with BIA's Assessment of VAWA Cancellation Eligibility

The Third Circuit has disagreed with the Board of Immigration Appeals' (BIA) assessment of when a crime is “connected to” the abuse an applicant for VAWA cancellation has endured.

“As a threshold matter, we are not convinced that the Chevron framework applies here because interpreting ‘connected to’ does not implicate the BIA’s ‘expertise in a meaningful way.’ Rather it appears to be ‘a pure question of statutory construction for the courts to decide.’ Even if the Chevron framework did apply, ‘connected to’ is unambiguous as discussed below and therefore, the meaning of ‘connected to’ is resolved under the first step of Chevron.”

“Dictionaries define the word ‘connected’ similarly. Miriam-Webster defines it as ‘having the parts or elements logically linked together;’ the Oxford English Dictionary defines it as ‘related, associated (in idea or nature);’ and Black’s Law Dictionary defines it as ‘to associate as in occurrence or in idea.’ Together, these definitions indicate that the term ‘connected to’ means ‘having a causal or logical relationship.’

“A narrow construction, like the one the BIA adopted here, would frustrate this statute’s larger goal by limiting the exception to those who committed crimes at the direction of their abuser. There are other reasons for which an abused spouse might commit acts that, absent the abuse, would indicate bad character. We do not need to develop that list in connection with this case, but at the same time we should not limit the applicability of the exception in a way that is contrary to the intent of the statute.”

The court also rejected a USCIS memo with a more narrow definition of “connected to,” finding it unpersuasive.

The full text of Ramos de Silva v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/181699p.pdf

Second Circuit Concludes that NY Conviction for Attempted Possession of a Sexual Performance by a Child is an Aggravated Felony

The Second Circuit has concluded that a New York conviction for attempted possession of a sexual performance by a child is an aggravated felony related to possession of child pornography. The court rejected the petitioner’s argument that the New York statute had a lower mens rea than the federal statute, finding they both require the defendant to know that a minor was involved in the depiction. The petitioner also argued that the New York statute lacks the affirmative defense permitted by the federal statute, which covers an individual who possesses less than three prohibited visual depictions and, without allowing anyone else to access to them, either promptly destroys them or turns them over to law enforcement. The court deemed the affirmative defense to be irrelevant to the categorical approach.

The full text of Quito v. Barr can be found here:
http://www.ca2.uscourts.gov/decisions/isysquery/327299e4-e63d-454c-8297-339ce94391dc/4/doc/18-996_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/327299e4-e63d-454c-8297-339ce94391dc/4/hilite/

Second Circuit Concludes that Woman Resisting Sexual Violence may be Exhibiting a Political Opinion

The Second Circuit has concluded that a Salvadoran woman who resisted rape attempts by gang members may have exhibited an actual or imputed feminist, anti-patriarchy, or anti-gang authority political opinion. The decision recognizes that gangs essentially operate as political entities in El Salvador, and should provide excellent language for asserting political opinion in other cases involving resistance to gang authority.

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

http://www.ca2.uscourts.gov/decisions/isysquery/327299e4-e63d-454c-8297-339ce94391dc/1/doc/17-3903_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/327299e4-e63d-454c-8297-339ce94391dc/1/hilite/

CA Appellate Court Addresses IAC and 1473.7

The California Court of Appeal, Fourth Appellate District, has issued a decision addressing the grounds for pre-Padilla ineffective assistance of counsel claims, but also recognizing that a Sixth Amendment violation is not required to meet the standard for a vacatur under section 1473.7 of the California Penal Code (CPC). “Nevertheless, prior to Padilla, it remained an open question in California whether defense counsel had an affirmative duty to advise about immigration consequences of a plea. Earlier cases provide limited guidance on what types of advice or lack thereof rose to the level of ineffective assistance under California law prior to Padilla. While it is clear that affirmative misadvice satisfies the performance prong of an ineffective assistance claim, it is less clear whether a failure to provide comprehensive advice might qualify.”

In the instant case, it was undisputed that some conversations about immigration consequences took place between the defendant and his counsel, and that the defense counsel merely reiterated the warnings of possible immigration consequences from the Tahl form, the counsel’s performance was deficient.

However, the court determined that the counsel’s error was not prejudicial. “Defendant did not satisfy this burden here. The record contains sufficient evidence to conclude that defendant prioritized drug treatment over potential immigration-neutral pleas, and therefore it is not reasonably probable that he would have rejected the plea but for his counsel’s failure to properly advise him.” The court noted that the defendant had rejected an offer to an immigration-neutral disposition under section 459 of the CPC.

“We agree with Camacho and Mejia’s conclusion that prevailing under section 1473.7 does not require a defendant to prove a violation of his constitutional rights, and only requires contemporaneous evidence demonstrating a reasonable probability that but for the alleged error defendant would not have entered a guilty plea. However, we disagree that these cases counsel a different result here.” “[E]ven under an expansive reading of Camacho and Mejia we still conclude that defendant failed to meet his burden to show that there is a reasonable probability that but for the error defendant would not have entered his plea.”

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

http://sos.metnews.com/sos.cgi?1219//E070926

BIA Addresses Torture by "Rogue Officials"

The Board of Immigration Appeals (BIA) has determined that torture by “rogue officials” is not protected against by the Convention Against Torture (CAT). “The history and purpose of the treaty reflect that its protection was intended to apply only to torture that occurs in the context of governmental authority.” “Thus, under the treaty and its implementing regulation, torturous conduct committed by a public official who is acting ‘in an official capacity,’ that is, ‘under color of law’ is covered by the Convention Against Torture, but such conduct by an official who is not acting in an official capacity, also known as a ‘rogue official,’ is not covered by the Convention. ‘Rogue officers’ or ‘rogue officials’ are public officials who act outside of their official capacity, or, in other words, not under color of law.”

“An act that is motivated by personal objectives is under color of law when an official uses his official authority to fulfill his personal objectives.” “In evaluating if a public official is acting under color of law in inflicting torture, circuit courts have significantly relied on whether government connections provided the officer access to the victim, or to his whereabouts or other identifying information.” “Also relevant to the analysis is whether a law enforcement officer was on duty and in his official uniform at the time of his conduct. If so, it is more likely that he acted under color of law. However, the use of an official uniform or service weapon is not dispositive of the issue, because those items can be obtained outside the normal channels of government operations, and they may not be necessary to the official’s ability to engage in the torturous conduct.” “Moreover, in general, the higher a position in law enforcement that a person holds, the more likely his conduct will be under color of law, even if his actions are taken for personal gain.“ “It has been held that the use of government-issued equipment, such as a service weapon or handcuffs, to beat or restrain a victim does not automatically render the conduct under color of law. Rather, an Immigration Judge should consider whether a private citizen could obtain the same weapons or restrain the victim in the same manner.”

“In sum, the key consideration in determining if a public official was acting under color of law is whether he was able to engage in torturous conduct because of his government position or if he could have done so without any connection to the government. Issues to consider in making this determination include whether government connections provided the officer access to the victim, or to his whereabouts or other identifying information; whether the officer was on duty and in uniform at the time of his conduct; and whether the officer threatened to retaliate through official channels if the victim reported his conduct to authorities.”

The BIA clarified that even if an official acted in a rogue capacity, an applicant may qualify for CAT protection if the torture was inflicted with the acquiescence of a government official. “An applicant may establish acquiescence by citing to evidence, particularly country conditions evidence, showing that the torturous conduct is “routine” and sufficiently connected to the criminal justice system for an adjudicator to reasonably infer that higher-level officials either know of the torture or remain willfully blind to it and therefore breach their legal responsibility to prevent it. “

The full text of Matter of O-F-A-S- can be found here:

https://www.justice.gov/eoir/page/file/1224026/download

BIA Addresses Inconsistencies in Asylum Applicant's Testimony

The Board of Immigration Appeals (BIA) has issued a decision addressing what opportunity an asylum applicant must be given to address perceived inconsistencies in her testimony. “An applicant may be put on notice of inconsistencies in different ways, depending on the circumstances. When an inconsistency is obvious or apparent, it is not necessary to bring it to an applicant’s attention.” “For example, where an alien’s application stated that his home was ransacked by the opposition party while he was away, but he testified he was beaten by party members when he was at home, the Immigration Judge was not required to bring this obvious inconsistency to his attention.”

“Where an inconsistency is not obvious, the key consideration is whether it is reasonable to assume that the applicant was aware of it and had an opportunity to offer an explanation before the Immigration Judge relied on it.” “An Immigration Judge may ask the applicant to respond to a perceived inconsistency, but that is not the only way to bring it to his attention. The Government may give the applicant an opportunity to respond through cross-examination. The applicant’s representative may also decide to elicit testimony on direct examination, or on redirect to clarify inconsistencies that are brought out during the hearing, particularly if they are not obvious or apparent. Although an Immigration Judge is not required to ask about obvious inconsistencies, there is nothing that precludes him or her from doing so for the sake of clarity and completeness of the record.”

The full text of Matter of Y-I-M- can be found here:

https://www.justice.gov/eoir/page/file/1225926/download

Eleventh Circuit Defers to Matter of A-B-

The Eleventh Circuit has deferred to the Board of Immigration Appeals’ decision in Matter of A-B-, as a reasonable interpretation of the BIA and Eleventh Circuit’s particular social group precedent. As such, it rejected the petitioner’s proposed social group of “women in Mexico who are unable to leave their domestic relationship.”

“The belief of Amezcua-Preciado’s aunt that Amezcua-Preciado should return to her husband despite being abused is insufficient to determine that Mexican society as a whole perceives women who are unable to leave their relationships as a distinct group.”

“In addition, Amezcua-Preciado’s group is not defined with sufficient particularity because its boundaries are amorphous, overbroad, and subjective. As she defines it, Amezcua-Preciado’s group includes all Mexican women who cannot leave any domestic relationship, whether that is a wife unable to leave her husband or a daughter unable to leave her parents. It covers women who are ‘unable to leave’ a relationship for any reason, including for physical, legal, economic, cultural, or psychological reasons. The fact that a woman could be prevented from leaving a relationship by her psychological or economic dependence reinforces the subjective nature of this group.”

“Finally, to the extent Amezcua-Preciado’s proposed group of Mexican women who are unable to leave their domestic relationships because they fear physical or psychological abuse by their spouse or domestic partner, this group is defined by the underlying harm asserted as persecution in Amezcua-Preciado’s application for asylum and withholding of removal. The women share no ‘narrowing characteristic’ other than their risk of being persecuted. This is the kind of circular definition of a social group, created by reference to the alleged persecution, that cannot create a cognizable particular social group.”

The full text of Amezcua-Preciado v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201814788.pdf

Eleventh Circuit Remands Habeas Petition

The Eleventh Circuit has remanded a habeas petition to determine if the petitioner acted in bad faith by refusing to complete an application for a travel document, or whether he returned the incomplete application simply because he did not know the remaining information. The court emphasized that the District Court cannot resolve this conflict on affidavits alone.

The full text of Singh v. Attorney General can be found here:
http://media.ca11.uscourts.gov/opinions/pub/files/201812915.pdf

Tenth Circuit finds that Aurora, Colorado Theft Conviction is Divisible as a CIMT

The Tenth Circuit has determined that a conviction under the Aurora, Colorado Municipal Code is overbroad and divisible with respect to the definition of a crime involving moral turpitude. Because the petitioner could not prove that her conviction was under a subsection that did not match the definition of a crime involving moral turpitude, the court concluded that she had not met her burden of proving eligibility of cancellation for removal for nonlawful permanent residents.

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

https://www.ca10.uscourts.gov/opinions/18/18-9511.pdf

Ninth Circuit Finds that Federal Conviction for Armed Robbery Involving Controlled Substances is Crime of Violence

The Ninth Circuit has determined that a federal conviction for armed robbery involving controlled substances is a crime of violence under federal sentencing law. The court rejected the petitioner’s argument that armed robbery by intimidation does not require the actual or threatened use of violent force. Given the similar definition of a crime of violence in the immigration and federal sentencing contexts, this decision could have persuasive effect in immigration litigation.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/12/02/17-35446.pdf

Ninth Circuit Addresses Proper Role of Asylum Officer's Assessment to Refer in Credibility Determination

The Ninth Circuit has determined that an Immigration Judge may not rely on an Asylum Officer’s credibility determination. “ The IJ may not rely on an asylum officer’s subjective conclusions about a petitioner’s demeanor or veracity at an earlier interview.”

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/12/11/17-71338.pdf

Ninth Circuit Finds that Removal of Petitioner did not Withdraw his Appeal

The Ninth Circuit has determined that when the Department of Homeland Security removes an appellant while his appeal of a denied motion to reconsider is pending before the Board of Immigration Appeals, his appeal is not considered withdrawn under the regulatory departure bar. “We therefore hold that an alien does not withdraw his appeal of a final removal order, including the appeal of the denial of a motion to reopen or reconsider, simply because he was involuntarily removed before the appeal was decided. Rather, we hold that § 1003.4 provides for withdrawal only when the petitioner engaged in conduct that establishes a waiver of the right to appeal.”

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/12/27/16-72246.pdf

Eighth Circuit Rejects Challenge to Underlying Removal Order in Reinstatement Appeal

The Eighth Circuit has rejected the petitioner’s argument that he suffered a gross miscarriage of justice in his underlying administrative removal order, finding that he cannot challenge the validity of the underlying removal order through an appeal of the reinstatement of that order.

The full text of Lara Nieto v. Wolf can be found here:

https://ecf.ca8.uscourts.gov/opndir/19/12/182232P.pdf

Third Circuit Transfers Citizenship Claim to District Court to Evaluate Claim of De Facto Marriage in Peru

The Third Circuit has transferred a case to District Court to resolve a dispute about whether the petitioner’s parents were married (and subsequently legally separated) under Peruvian law, which recognizes de facto marriages.

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

https://www2.ca3.uscourts.gov/opinarch/191049p.pdf

Third Circuit Finds that Federal Conviction for Conspiracy to Commit Assault with a Dangerous Weapon is not Aggravated Felony; Remands CAT Claim for Former Gang Member

The Third Circuit has determined a conviction under 18 U.S.C. § 1959(a)(6) (conspiracy to commit assault with a dangerous weapon) is not a crime of violence aggravated felony, not a conspiracy-related aggravated felony (which requires an overt act, an element not required by the federal conspiracy statute), and not a racketeering offense. The court also remanded the petitioner’s claim for protection under the Convention Against Torture, which was premised on the harm he would suffer as a former gang member if he were to be deported to El Salvador. The court emphasized that the Salvadoran government may acquiesce to torture by gang members, even if it is actively opposing gang members, if it is unable to prevent the harm.

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

https://www2.ca3.uscourts.gov/opinarch/183750p.pdf

Second Circuit Finds that BIA Appeal Deadline is Subject to Equitable Tolling

The Second Circuit has determined that the 30-day appeal deadline for filing a Notice of Appeal with the Board of Immigration Appeals (BIA) is a claim processing rule, not a jurisdictional bar, and as such, it is subject to equitable tolling. The court emphasized that equitable tolling is available, even without the BIA exercising its discretionary certification authority.

“ The BIA is free to develop the factors it will apply in considering equitable tolling, although we note that it need not start from scratch. In Holland, the Supreme Court set out standards for courts to apply in determining whether equitable tolling is appropriate: (1) a showing that a petitioner “has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.”  560 7 U.S. at 649 (internal quotation marks omitted). And in the context of a late motion to reopen, we have held that petitioners seeking equitable tolling must demonstrate (1) that their constitutional rights to due process were violated by the conduct of counsel; and (2) that they exercised due diligence during the putative tolling period.”

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

http://www.ca2.uscourts.gov/decisions/isysquery/07812bd0-88af-49f5-9682-1c2732ecc8c3/7/doc/18-204_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/07812bd0-88af-49f5-9682-1c2732ecc8c3/7/hilite/

Second Circuit Addresses Definition of Sexual Abuse of a Minor

The Second Circuit has addressed the definition of a sexual abuse of a minor aggravated felony, taking into account recent Supreme Court precedent on the topic. The court determined that a conviction must require knowing or purposeful conduct to qualify as a sexual abuse of a minor aggravated felony. Turning to the conviction at issue (New York’s criminal sexual act in the second degree, which criminalizes oral or anal sexual conduct with a victim under fifteen years old), the court noted that the statute did not have an explicit mens rea requirement. However, the court concluded that such conduct cannot occur without the perpetrator’s knowledge or intent to commit the criminalized sexual conduct. The court also rejected the petitioner’s argument that New York’s lack of a mistake of age defense transforms the statute into a strict liability offense, outside the scope of the definition of a sexual abuse of a minor aggravated felony. In so doing, the court noted that at the time Congress added the sexual abuse of a minor aggravated felony ground, most jurisdictions did not have a mistake of age defense to similar offenses. Thus, the court concluded that a New York conviction for criminal sexual act in the second degree is a categorial match to the definition of a sexual abuse of a minor aggravated felony.

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

http://www.ca2.uscourts.gov/decisions/isysquery/07812bd0-88af-49f5-9682-1c2732ecc8c3/28/doc/17-3519_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/07812bd0-88af-49f5-9682-1c2732ecc8c3/28/hilite/

BIA Defines Standards for Reopening and Termination of Asylum Based on Fraud

The Board of Immigration Appeals (Board) has determined that “reopening of proceedings to terminate a grant of asylum is warranted if the Department of Homeland Security [DHS] has demonstrated that evidence of fraud in the original proceeding was not previously available and is material because, if known, it would likely have opened up lines of inquiry that could call the alien’s eligibility for asylum into doubt.” In the instant case, the DHS moved to reopen to introduce evidence that the asylee’s attorney had been convicted of conspiracy to commit immigration fraud. The Board considered this sufficient to warrant reopening, but noted that “[i]n reopened proceedings, the DHS carries the burden of proof to establish by a preponderance of the evidence that the respondent’s asylum application was fraudulent, that she was not eligible for asylum when it was granted, and that she would not have been eligible on the true facts.”

The full text of Matter of X-Q-L- can be found here:

https://www.justice.gov/eoir/page/file/1216091/download

BIA Issues Decision on Heightened Standard 209(c) Waiver

The Board of Immigration Appeals has determined that hardship to the applicant is counted in the “exceptional and extremely unusual hardship” standard for a heightened standard 209(c) waiver. However, even if an applicant establishes the exceptional and extremely unusual hardship required to demonstrate extraordinary circumstances, a section 209(c) waiver and adjustment of status may still be denied in the exercise of discretion if the adverse factors, particularly those involving the alien’s criminal conduct, outweigh the favorable ones. . If the applicant has demonstrated exceptional and extremely unusual hardship, that finding would be a significant favorable factor in a discretionary analysis.

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

https://www.justice.gov/eoir/page/file/1214306/download

Tenth Circuit Finds that NTA Lacking Date and Time of First Hearing does not Deprive IJ of Jurisdiction

The Tenth Circuit has determined that a Notice to Appear that fails to specify the time and date of the first removal hearing does not deprive an Immigration Judge of jurisdiction over the removal proceedings.

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

https://www.ca10.uscourts.gov/opinions/19/19-9510.pdf