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The Fourth Circuit has rejected the proposed particular social group of “merchants in the formal Honduran economy” as being insufficiently immutable.
The full text of Canales-Rivera v. Barr can be found here:
http://www.ca4.uscourts.gov/opinions/181610.P.pdf
The Third Circuit has determined that when analyzing whether a state statute defines a felony under the Controlled Substances Act (and as such, qualifies as an aggravated felony), the agency is limited to comparing the state statute to the most similar federal analog. “Rosa was charged with and convicted of a greater offense—sale of a controlled substance within a school zone—with the additional school zone element not included in the lesser offense. The Government cannot now avoid the implications of Rosa’s actual conviction. “We have reasoned that Congress would not have incorporated the entirety of substantive felony offenses under the Controlled Substances Act as federal analogs if it also intended to permit prosecutors and immigration officials to resort to the federal analogs with the least number of elements.“
“The application of those principles in this case is straightforward. Rosa’s statute of conviction, the New Jersey School Zone Statute, has three elements that may be described as: (1) “distributing, dispensing or possessing with intent to distribute” (2) “a controlled dangerous substance” (3) “while on any school property.” The Federal Distribution Statute, however, lacks that critical third element, requiring only that a person (1) knowingly or intentionally “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense” (2) “a controlled substance.” Because it lacks what may be described as a location element, the Federal Distribution Statute is not a proper analog to the New Jersey School Zone Statute. Instead, the Federal School Zone Statute supplies that missing element and is the proper federal analog. Consequently, the Board of Immigration Appeals erred in concluding that it could select a generic federal analog from any provision of the Controlled Substances Act and in comparing Rosa’s statute of conviction to the general Federal Distribution Statute.“
“In this case, the text of the New Jersey School Zone Statute and New Jersey case law do not definitively determine whether the disjunctively phrased conduct and location elements of that statute are divisible or indivisible. Therefore, the Court may look to a limited class of underlying documents to determine divisibility. However, the record before us in this case is one that does not “speak plainly.” In particular, we find that the record is too limited to permit us to determine if the various items listed in the New Jersey School Zone Statute are means or elements or, if necessary, to determine which of those elements played a role in Rosa’s conviction. In our review of the record, we were unable to locate Rosa’s plea agreement or plea colloquy or a charging document for his possession charge. Although we do have the judgments of conviction for Rosa’s convictions for both possession and “sale” of controlled substances, we have previously held that “we may not look to factual assertions in the judgment of sentence.” Furthermore, the jury instructions available for the New Jersey School Zone Statute fail to clarify whether the conduct at issue consists of elements or means. There is only one set of jury instructions for distributing or dispensing on school property, which suggests that distributing and dispensing are interchangeable means. However, there is a separate set of instructions for possession with the intent to distribute on school property, which may indicate that the conduct consists of different elements that the jury must find beyond a reasonable doubt. The jury instructions, absent support from the other Shepard documents from Rosa’s criminal case, are inconclusive. Thus, we remand to the Board for further proceedings to supplement the record; if the record cannot be supplemented to satisfy the ‘demand for certainty’ in analyzing whether the statute lists means or elements, Rosa cannot be found to have committed an aggravated felony.”
The full text of Rosa v. Attorney General can be found here:
https://www2.ca3.uscourts.gov/opinarch/181765p.pdf
The First Circuit has affirmed the Board of Immigration Appeals’ discretionary denial of a motion to reopen seeking withholding of removal and protection under the Convention Against Torture. The petitioner alleged that after he was deported, he was detained for 140 days by the Sudanese government.
The full text of Daoud v. Barr can be found here:
http://media.ca1.uscourts.gov/pdf.opinions/19-1283P-01A.pdf
The Board of Immigration Appeals (BIA) has determined that a Minnesota conviction for making terroristic threats is a crime involving moral turpitude. In so doing, the BIA noted that the statute requires intentionally “caus[ing] extreme fear by use of violence or threats.” “First, we conclude that the communication of an intent to injure another by use of violence involves sufficiently reprehensible conduct to constitute a crime involving moral turpitude.” “In this regard, we clarify that making a threat to commit a crime of violence in violation of Minnesota’s terroristic threats statute is a crime involving moral turpitude, even if the threatened crime would not necessarily qualify as a crime involving moral turpitude.” “We note that the Minnesota statute requires either evacuation or ‘serious’ public inconvenience, which ensures that threats resulting in minor societal interference are not criminalized. Indeed, our review of Minnesota case law indicates that convictions that could fall under this prong of this statute involve, at minimum, reckless disregard that deployment of significant public resources would result from the violators’ actions.”
The full text of Matter of Salad can be found here:
https://www.justice.gov/eoir/page/file/1231366/download
The Board of Immigration Appeals (BIA) has determined that a “notice to appear that does not include the address of the Immigration Court where the Department of Homeland Security will file the charging document, or include a certificate of service indicating the Immigration Court in which the charging document is filed, does not deprive the Immigration Court of subject matter jurisdiction.” Instead, the BIA concluded that the regulations at issue are “claim-processing” or “internal docketing” rules, which do not implicate subject matter jurisdiction, and that a deficiency in the notice to appear can be remedied by providing the information required by the regulations in a later notice of hearing.
In so doing, the BIA equated the address of the court where the charging document will be filed with the “place” of the first hearing, and found that its prior decision in Bermudez Cota already noted that a subsequent hearing notice could cure the missing location of a first hearing. While the BIA noted that a timely objection can be raised to a claim-processing violation (and that the respondents in this matter did so), it found no prejudice to the respondents, and declined to terminate proceedings.
The full text of Matter of Rosales Vargas can be found here:
https://www.justice.gov/eoir/page/file/1233181/download
The Board of Immigration Appeals (BIA) affirmed the denial of a continuance to a detained U visa applicant, even though the applicant had been conditionally approved for U status and placed on the waitlist.
“There is no dispute that the respondent is prima facie eligible for a U visa and that a grant of his visa petition by the USCIS would materially affect the outcome of his removal proceedings. However, in assessing whether to grant an alien’s request for a continuance regarding an application for collateral relief, these primary factors are not dispositive. This is especially so where, as here, there are relevant secondary factors that weigh against continuing the proceedings—in particular, the respondent’s lack of diligence in pursuing a U visa, the DHS’s opposition to a continuance, and concerns regarding administrative efficiency, which include the uncertainty as to when a visa will be approved or become available and the respondent’s detained status.” The BIA then noted that the respondent was detained, had waiting until one month prior to his merits hearing to file the U visa, that DHS opposed the continuance, that it was unclear when a U visa would be available to the respondent, and that the respondent had waited 10 years from the date of the criminal incident to file for U nonimmigrant status.
The full text of Matter of Mayen-Vinalay can be found here:
https://www.justice.gov/eoir/page/file/1236941/download
The Tenth Circuit has reaffirmed that a Notice to Appear missing the time and date of the first hearing is not jurisdictionally deficient, but rather, presents a claim-processing rule violation. A party may bring a timely request for dismissal based on a deficient Notice to Appear. The court remanded the case for the Board of Immigration Appeals to determine if it has the authority to freeze the age of a qualifying relative on the date an application for cancellation of removal is filed when there is undue delay on the part of the agency in adjudicating the application. In the instant case, the applicant’s daughter turned 21 after the court continued his case 5 times on its own motion, delaying adjudication of his adjudication for six years.
The full text of Martinez-Perez v. Barr can be found here:
https://www.ca10.uscourts.gov/opinions/18/18-9573.pdf
The Tenth Circuit has remanded a withholding of removal claim for further analysis of whether the government of the Democratic Republic of the Congo engages in a pattern and practice of persecution of political dissidents.
The full text of Matumona v. Barr can be found here:
https://www.ca10.uscourts.gov/opinions/18/18-9579.pdf
The Ninth Circuit has deferred to the regulation that requires a derivative spouse to be married to the principal U visa applicant on the date the U visa application is filed in order to qualify for derivative U nonimmigrant status. Judge Watford dissented, nothing the multitude of other places where “accompanying or following to join” spouses have been defined as those who are married to the primary applicant on the date the application for immigration benefits is granted, not on the date it is filed.
The full text of Tovar v. Zuchowski can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/17/18-35072.pdf
An amended opinion, reaching the same outcome, can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/02/12/18-35072.pdf
The Ninth Circuit has determined that an individual who enters the US on a B-2 visa and overstays the visa may apply for a foreign divorce even if she and her spouse are both residing in California. The court found that federal law prevents a person who overstays a B-2 visa from establishing a lawful domicile in California. As such, the California law that prevents recognition of a foreign divorce when the two parties are domiciled in California was not applicable. The overstayed immigrant could obtain a foreign divorce and be legally free to marry a new spouse in California.
The full text of Park v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/07/18-55914.pdf
The Ninth Circuit has rejected a challenge to the derivation of citizenship statute, finding that the differing treatment for the children of married parents from those of legally separated parents bears a rational basis to the congressional goal of protecting the parental rights of the non-citizen parent. The court rejected the argument that the Supreme Court’s decision in Morales Santana requires the application of a heightened standard of scrutiny to any law that differentiates based on parental marital status, finding that the discussion of parental marital status in Morales Santana was limited to laws that discriminate based on the child’s legitimacy. Since the law at issue looks at the parents’ marital status at a time after the child’s birth, the heightened standard of review related to legitimacy distinctions does not apply.
The full text of US v. Mayea-Pulido can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/03/18-50223.pdf
The Ninth Circuit has determined that a conviction under section 114 of the California Penal Code is neither a crime involving moral turpitude nor an aggravated felony. With respect to the aggravated felony issue, the court noted that the statute the California statute cannot be a match to the federal offense it includes documents, such as fake drivers’ licenses, that are not enumerated in the aggravated felony definition. With respect to the crime involving moral turpitude issue, the court noted that the statute of conviction “ does not require that there be any specific benefit to any specific person—it permits conviction simply for the use of a document to show another that the holder is a legal resident, even where that representation does not incur any benefit to the defendant.”
The full text of Jauregui-Cardenas v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/13/16-71309.pdf
The Ninth Circuit has granted a petition for rehearing en banc in Torres v. Barr, a case addressing the imposition of U.S. immigration law on the CNMI.
The order granting rehearing can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/13/13-70653.pdf
The Ninth Circuit has determined that one combination of subsections of Arizona’s basic and aggravated assault statutes qualify as a crime involving moral turpitude. Specifically, an assault committed with by Intentionally placing another person in reasonable apprehension of imminent physical injury through the use of a deadly weapon or dangerous instrument contains a sufficiently high mens rea and sufficiently serious conduct to rise to the level of moral turpitude.
The full text of Altayar v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/14/17-73308.pdf
The Ninth Circuit has granted a petition for en banc rehearing in Lopez v. Sessions, a case dealing with the stop-time rule for cancellation of removal.
The order granting en banc review can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/23/15-72406_en_banc_order.pdf
The Ninth Circuit has rejected a petitioner’s claim that the particular social group comprised of people who report the criminal activity of gangs to the police is cognizable for withholding of removal purposes. In so doing, the court noted that “the record is devoid of any society specific evidence, such as country reports, background documents, or news articles, which would establish that persons who ‘report the criminal activity of gangs to the police’ are perceived or recognized as a group by society in Guatemala.”
The court was careful to note that its decision did “not foreclose the possibility that reporting gang violence to police could suffice to establish eligibility. For example, if there were evidence that, in a specific country, people in the community knew who reported crimes to the police, or if there were laws protecting those who did, the proposed group potentially could be cognizable. Here, however, Petitioner met with only one police officer; he was not in the main public precinct room but in a separate room when making the report; no evidence was taken from him; he was not photographed; and he did not cooperate with the police beyond making his complaint at the police office. As noted, Petitioner presented no evidence of a Guatemalan law or program protecting those who, without more, make police reports, and Petitioner presented no other evidence that Guatemalan society recognizes those who just report criminal activity of gangs to police as a particular social group.:”
The full text of Conde Quevedo v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/24/18-70078.pdf
The Seventh Circuit, in a scathing opinion, reaffirmed an Immigration Judge’s authority to grant a waiver to a U visa applicant, and reprimanded the Board of Immigration Appeals for ignoring the court’s prior decision in this matter. “We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails.”
The decision in Baez Sanchez v. Barr can be found here:
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D01-23/C:19-1642:J:Easterbrook:aut:T:fnOp:N:2462983:S:0
The Sixth Circuit has emphasized that a petitioner need only show a reasonable probability that but-for his counsel’s substandard conduct, he would have received a different outcome in his removal proceedings. The Board of Immigration Appeals (Board) “required that Kada prove prejudice by showing that his claims necessarily would have succeeded or that he has actually been tortured rather than asking whether he demonstrated a reasonable probability that, but for his counsel’s ineffective assistance, he would have been entitled to remain in the United States. And it failed to treat Kada as it has similarly-situated individuals. As a result, the Board abused its discretion by denying Kada’s motion to reopen.”
The full text of Kada v. Barr can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0014p-06.pdf
The Fifth Circuit determined that the Department of Homeland Security was not precluded from bringing an aggravated felony charge based on the petitioner’s burglary conviction after the Board of Immigration Appeals terminated proceedings based on an aggravated felony charge related to the petitioner’s evading police conviction. “Because the two proceedings against Chavez did not deal with the same claim or cause of action, res judicata did not preclude the DHS from seeking to remove Chavez on the basis of his burglary conviction.”
The full text of Chavez-Mercado v. Barr can be found here:
http://www.ca5.uscourts.gov/opinions/pub/17/17-60212-CV0.pdf
The Fourth Circuit determined that the Board of Immigration Appeals (BIA) violated the due process rights of an asylum seeker when it remanded her case to the judge to further consider certain inconsistencies in her testimony, but then affirmed the judge’s denial of her application without holding a hearing to take her testimony on remand.
The full text of Atemnkeng v. Barr can be found here:
http://www.ca4.uscourts.gov/opinions/181886.P.pdf
