These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
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New Case Law
The Eighth Circuit has declined to recognize any exception to the general rule that the denial of a sua sponte motion to reopen is non-reviewable. Although the court recognizes that three other circuits permits review of these decision if the agency relied on an incorrect legal premise, the court declined to adopt that rationale.
The full text of Vue v. Barr can be found here:
https://ecf.ca8.uscourts.gov/opndir/20/03/182595P.pdf
The Seventh Circuit has determined that an attorney provided ineffective assistance of counsel by failing to advise a client about his eligibility for a U visa. “The Board should not have faulted Alvarez-Espino for failing to provide his initial counsel with information significant to a potential U visa application. The Board’s reasoning is backwards: it is up to counsel, not the client, to ask the right questions and to solicit information pertinent to potential legal grounds to prevent removal. To place the burden on Alvarez-Espino as the Board did is to require him to have a nuanced understanding of American immigration law. That expectation defies reality.”
However, the court found that the petitioner was not prejudiced by the ineffective assistance, because he did eventually file his U visa, and the application will continue to process while he is outside of the country.
The full text of Alvarez-Espino v. Barr can be found here:
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D03-06/C:19-2289:J:Scudder:aut:T:fnOp:N:2483918:S:0
The Fifth Circuit acknowledged that Texas criminalizes actions related to 49 substances not found in the Controlled Substances Act, but determined that the petitioner did not demonstrate a reasonable probability that Texas prosecutes offenses related to these substances. The court further determined that the agency has the authority to determine, on a case-by-case basis, that a non-aggravated felony is a particularly serious crime.
The full text of Vetcher v. Barr can be found here:
http://www.ca5.uscourts.gov/opinions/pub/18/18-60449-CV0.pdf
The Second Circuit has determined that the pre-2016 Uniform Code of Military Justice’s sentencing scheme leaves uncertainty as to how much time was imposed for each individual count in a multi-conviction case. That is because prior to 2016, the UCMJ imposed a single sentence for all counts, without specifying how much time was applicable to each conviction. As such, the Department of Homeland Security was unable to prove that a sentence of at least one year was imposed on the petitioner’s theft conviction.
The full text of Persad v. Barr can be found here:
http://www.ca2.uscourts.gov/decisions/isysquery/4a1b588c-0ed3-41f3-bf58-4d50ee1ec5cb/1/doc/17-661_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/4a1b588c-0ed3-41f3-bf58-4d50ee1ec5cb/1/hilite/
The Board of Immigration Appeals (BIA) has determined that an applicant’s status as a landowner does not automatically render that alien a member of a particular social group for purposes of asylum and withholding of removal. Instead, the applicant must show that landowners are socially distinct and particularized within the society in question. As an example, “where the particular facts of a case indicate that landownership is linked with another protected ground—for example, political opinion, by exclusively limiting participation in governance and other political activities to landowners—a group of landowners is more likely to have definable boundaries and be viewed by the society in question as a distinct class of persons. The same is true for a group of landowners who pose a threat to a cartel and its interests, given the group’s social prominence or significance, political or otherwise.”
Contradictorily, the BIA then determined that cartels persecuting landowners because they want their land does not demonstrate the requisite nexus to a protected ground. “The country conditions evidence reflects that cartels engage in criminal activity in Guatemala based on their desire to increase their revenue, power, and territorial control. The criminal activity at issue in this case is drug cultivation and distribution, rendering vulnerable those, like the respondent, who have a resource—in this case, land—that the cartels wish to exploit in order to benefit their operations. Such circumstances are not substantially different from a situation where a criminal is motivated by the theft of desired goods. It is well settled, however, that such a situation does not qualify as persecution on account of a particular social group.”
“The respondent’s proposed social groups necessarily focus on his status as a landowner. But the cartel’s actions reflect that its focus was on the respondent’s land itself, not his landowner status.” It is completely unclear how you would demonstrate a persecutor’s desire to overcome a person’s characteristic as a landowner without demonstrating that the persecutor has some desire for the landowner’s land.
The full text of Matter of E-R-A-L- can be found here:
https://www.justice.gov/eoir/page/file/1247176/download
The Attorney General has issued a new decision governing determinations under the Convention Against Torture. He has directed the Board to conduct a de novo review of whether the factual findings made by the Immigration Judge amount to the legal definition of torture. The Attorney General also affirmed that torture requires the specific intent to harm; the legal definition of torture does not include negligent conduct.
The full text of Matter of R-A-F can be found here:
https://www.justice.gov/eoir/page/file/1252416/download
The Board of Immigration Appeals (BIA), on remand from the Fourth Circuit, has determined that a Maryland conviction for sexual solicitation of a minor is a crime involving moral turpitude (CIMT) even though the statute does not require the defendant to know the age of the victim. The BIA held that “sexual crimes involving young children have historically been excepted from [the mens rea] requirement because the intent to achieve the immoral result is inherent in the willful commission of such an act.”
Recognizing that this a departure from past CIMT precedent, the BIA will apply it only prospectively in the Fourth Circuit. The BIA declined to determine if retroactive application in other circuits would be appropriate.
The full text of Matter of Jimenez Cedillo can be found here:
https://www.justice.gov/eoir/page/file/1252591/download
The Eleventh Circuit has remanded an asylum claim, where the trial counsel acted deficiently by not (1) communicating with the petitioner about the substance of his case; (2) allowing the petitioner to review the evidence despite his repeated requests; and/or (3) adequately preparing for the merits hearing.
“The BIA reasoned that Gurian’s performance was not deficient because he reasonably relied on evidence that Sow was directly involved in gathering. But Sow was not involved in gathering evidence. Because Sow was detained, his involvement was limited to reviewing evidence that Ibrahim, Diallo, and Gurian collected on his behalf. Sow repeatedly sought to review and correct the mounting evidence. But his efforts were unsuccessful, as Gurian refused to allow Sow access. When Sow finally had the opportunity to review some of the evidence, he attempted to communicate his concerns to Gurian. But Gurian either did not listen, or could not understand Sow, no doubt due to the language barrier and lack of an interpreter. In fact, Gurian failed to obtain an interpreter for any of their meetings or phone conversations, a sanctionable offense. As a result, Sow was unable to communicate with his counsel about the substance of his case.”
“Gurian also failed to familiarize himself with the case. For example, during the merits hearing, Gurian was unaware of basic facts like how many asylum applications Sow had submitted and how many individuals named Djibril Barry were involved in the case. And because of Gurian’s failure to review the evidence, he submitted contradictory affidavits. The evidence was not only internally inconsistent—he submitted multiple, contradictory affidavits prepared by Djibril Barry—but it was also inconsistent with his own client’s account.”
“Because the IJ explicitly said that he would have granted Sow’s application but for the evidentiary inconsistencies, we have no trouble concluding that there is a reasonable probability that the outcome of Sow’s merits hearing would have been different with adequate assistance of counsel.”
The full text of Sow v. Attorney General can be found here:
http://media.ca11.uscourts.gov/opinions/pub/files/201715245.pdf
The Ninth Circuit, in a pair of decision, affirmed an injunction against the Migrant Protection Protocols (MPP) - more commonly referred to the “Remain in Mexico” policy - and an interim rule disqualifying any person who crosses the United States beyond ports of entry (i.e., without proper inspection) to be ineligible for asylum. The Court stayed its decision in the MPP case (permitting the program to temporarily continue pending further argumentation). The two decisions can be found here:
East Bay Sanctuary Covenant v. Trump (ineligibility for asylum based on manner of entry);
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/02/28/18-17274.pdf
Innovation Law Lab v. Wolf (MPP case): https://cdn.ca9.uscourts.gov/datastore/opinions/2020/02/28/19-15716.pdf
The Eighth Circuit has rejected family-based withholding of removal claim. Extortionists had killed the petitioner’s stepfather after he was unable to pay extortion. They then threatened to kill petitioner’s mother and siblings. However, the court found this threat to be insufficient to demonstrate that any harm the petitioner would suffer would be on account of her family membership, as opposed to the extortionists’ desire to obtain money.
The full text of Silvestre-Giron v. Barr can be found here:
https://ecf.ca8.uscourts.gov/opndir/20/02/182887P.pdf
The Fifth Circuit has deferred to the Board of Immigration Appeals’ decision in Matter of N-A-I and determined that an asylee who adjusts status to lawful permanent residence voluntarily relinquishes his asylee status. In addition, an individual granted asylum pre-REAL ID Act cannot invoke issue preclusion to prevent the agency from finding him ineligible for asylum post-REAL ID Act.
The full text of Ali v. Barr can be found here:
http://www.ca5.uscourts.gov/opinions/pub/17/17-60604-CV0.pdf
The Fifth Circuit has held that when a Notice to Appear is lacking the time and place information for a first hearing, the subsequent service of a Notice of Hearing with that information completes the document and triggers the stop time rule for cancellation of removal purposes. In so doing, the court deferred to the Board of Immigration Appeals’ decision in Matter of Mendoza Hernandez.
The full text of Yanez-Pena v. Barr can be fond here:
http://www.ca5.uscourts.gov/opinions/pub/19/19-60464%20-CV0.pdf
The Fourth Circuit has determined that Virginia’s drug schedules are divisible, and as such, the specific identity of a controlled substance is an element of the offense of possession of a controlled substance.
The full text of Bah v. Barr can be found here:
http://www.ca4.uscourts.gov/Opinions/181877.P.pdf
In a case in which the agency determined that the petitioner had suffered past persecution on account of a protected ground, the Fourth Circuit addressed what type of evidence is necessary to rebut the resulting presumption of future persecution. The court rejected the idea that the Department of Homeland Security must produce some type of evidence, and indicated that at times, the agency would be able to rely on the petitioner’s evidence (including her testimony) to find the presumption had been rebutted. However, it is not sufficient for the agency to simply find state that the record is ambiguous as to whether there had been a fundamental change in circumstances or whether the petitioner could safely internally relocate. “To rebut the presumption, the government must prove that its view of the evidence as to either condition is the most convincing one.”
The court determined that a persecutor’s failure to contact the petitioner for the intervening years that she had been in the United States, on its own, does not rebut the presumption. There were other explanations - such as the difficulty in locating the petitioner while she resided in the United States - that could explain the persecutor’s lack of contact. It was not a reasonable conclusion that he had necessarily lost interest in harming her.
Similarly, the fact that the petitioner had briefly been able to relocate (in hiding) to another part of Honduras did not indicate she could safely relocate now, as it is not reasonable to assume she will remain in hiding for her entire life. The agency’s error was compacted by the fact that the persecutor had tracked the petitioner to another part of the country in the past.
The full text of Ortez-Cruz v. Barr can be found here:
http://www.ca4.uscourts.gov/opinions/181439.P.pdf
The Third Circuit has determined that a District Court has jurisdiction to hear the following challenges to the Migrant Protection Protocols (MPP), even if the removal proceedings of the challenging individual are ongoing:
1) Whether the MPP applies to a particular individual as a matter of statutory interpretation;
2) Whether the application of MPP to a minor violates the Flores settlement;
3) Whether the MPP violates the obligations of the nonrefoulement doctrine; and
4) Whether the MPP violates an individual’s constitutional right to due process by interfering with his relationship with counsel
The court specifically noted that Flores-related claims can be brought in any District Court, not just the Central District of CA where the agreement is monitored. The court remanded for the District Court to address the issues presented on the merits.
The full text of EOHC v. Secretary of DHS can be found here:
https://www2.ca3.uscourts.gov/opinarch/192927p.pdf
The Third Circuit has remanded a case in which the agency found the petitioner did not suffer past persecution simply because the harm she experienced was limited to verbal threats. The court directed the agency to consider the cumulative effect of the threats.
“Thus, a threat is ‘concrete and menacing,’ constituting past persecution, where the aggregate effect of a petitioner’s experiences, including or culminating in the threat in question, placed a petitioner’s life in peril or created an atmosphere of fear so oppressive that it severely curtailed the petitioner’s liberty.“ The court noted that even in the absence of physical harm to the petitioner, the agency should consider the threats in conjunction with violence against her property and close associates.
The full text of Herrera-Reyes v. AG can be found here:
https://www2.ca3.uscourts.gov/opinarch/192255p.pdf
The Third Circuit has determined that a Notice to Appear that is missing the time and date of a first hearing does not trigger the stop-time rule for cancellation of removal, even if the Immigration Court subsequently issues a notice of hearing containing the missing information. In so doing, the court declined to follow the Board of Immigration Appeals’ decision in Matter of Mendoza Hernandez , finding it inconsistent with the Supreme Court’s decision in Pereira v. Sessions. The court also overruled its prior decision in Orozco-Velasquez v. Attorney General.
The full text of Guadalupe v. Attorney General can be found here:
https://www2.ca3.uscourts.gov/opinarch/192239p.pdf
The First Circuit has determined that a motion to recalendar at the Board of Immigration Appeals (BIA) places the case in the same position it was in at the time of administrative closure. That is, if the case was already fully briefed, the BIA need only issue a final decision in the matter after recalendaring. Absent an explicit request for remand, the BIA is not required to consider any changed circumstances that may have occurred while the case was administratively closed.
The full text of Arevalo v. Barr can be found here:
http://media.ca1.uscourts.gov/pdf.opinions/18-1834P-01A.pdf
The Board of Immigration Appeals has determined that an Immigration Judge should order removed in absentia an individual subject to the Migrant Protection Protocols (more commonly referred to as the “Remain in Mexico” policy) who received notice of the time and location of his removal hearing.
The full text of Matter of Rodriguez can be found here:
https://www.justice.gov/eoir/page/file/1241341/download
The Ninth Circuit has concluded that an Oregon conviction for third-degree robbery is not a theft aggravated felony because it incorporates consensual takings via theft by deception, and the force elements do not impose a requirement that the defendant engage in a nonconsensual taking. “Because it is possible to commit theft by deception with the consent of the owner, Oregon’s theft statute expressly includes conduct outside of the generic definition.” “A force element generally implies a lack of consent—the force can be used, for example, to overcome resistance or otherwise compel behaviors. But the statute here expressly contemplates that such force may be used to compel another person, rather than the property owner, to deliver the property or to engage in other conduct which might aid the commission of the theft.”
“Consequently, even with the additional robbery elements, the text of the statute expressly includes situations involving consensual takings. Under subsection (b), a defendant could be convicted if she threatened force against a third party to compel that third party to convince a property owner, by deception, to give the property to the defendant consensually. In that scenario, the property would have been taken with the consent of the owner, and the force used would not negate the owner’s consent because the force was used against a third party without the owner’s knowledge.”
“Similarly, under subsection (a), a defendant could be convicted if the taking was consensual (although deceptive), but force was used against a third party to prevent that person from retrieving the property right after it was received by the thief.”
The full text of Lopez-Aguilar v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/28/17-73153.pdf
