Third Circuit Finds that "Persons Who Publicly Provide Assistance to Law Enforcement Against Major Salvadoran Gangs" are a Cognizable PSG

The Third Circuit has determined that individuals who publicly assist law enforcement against major Salvadoran gangs comprise a cognizable social group for the purpose of asylum and withholding of removal. The group is bound by an immutable characteristic because the members have the shared experience of assisting law enforcement, which is based on past conduct that cannot be undone. “In our analysis, it is indistinguishable whether someone testifies in court or publicly provides out of court assistance to law enforcement. In both circumstances, that person will have been visible to the public and is likely be targeted because of his cooperation.” “Like a group of witnesses who have testified in court against violent gangs, a group of witnesses who have publicly provided assistance to law enforcement against major Salvadoran gangs ‘has definable boundaries and is equipped with a benchmark for determining who falls within it’ sufficient to satisfy the particularity requirement.” “Providing assistance to law enforcement in public, like testifying in court, ‘lends itself to societal recognition,’ since ‘all are readily aware of the group and its members, not just those that are being provided information,” and thus, the group also has social distinction.

The court also noted that “asylum and withholding of removal under the INA may be granted on the basis of imputed, not just actual, membership in a particular social group.” In the instant case, the petitioner was seen talking to the police, and even though he did not actually provide information against gang members, the gang member assumed he had.

The court also found that the harm the petitioner suffered (which included threats made at gunpoint) constituted torture, and that the undisputed evidence showed that the gang members were still looking for the petitioner. Even though the Salvadoran government had enacted a witness protection program, it was limited to those who testified in court, and was underfunded and ineffective. “It is clear that this program is not sufficient to provide the protection to Guzman required to satisfy the CAT.”

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

https://www2.ca3.uscourts.gov/opinarch/191793p.pdf

Second Circuit Construes Jurisdictional Bar

The Second Circuit has determined that the criminal alien jurisdiction stripping provision only applies when the petitioner’s removal order is premised on the criminal offense. The court also remanded the petitioner’s CAT claim, finding that the agency improperly placed the burden on the petitioner to show that he could not safely internally relocate in Jamaica. “We have never before held that internal relocation is satisfied by assuming that a petitioner must essentially live incommunicado and isolated 5 from loved ones. And we decline to do so here.”

The full text of Manning v. Barr can be found here:
https://www.ca2.uscourts.gov/decisions/isysquery/20232925-1efe-476c-a08f-4d4efef6b2ae/27/doc/17-2182_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/20232925-1efe-476c-a08f-4d4efef6b2ae/27/hilite/

SCOTUS Construes Jurisdiction to Review Removal Orders

The Supreme Court has determined that questions of law include the application of a legal standard to undisputed or established facts. This arises in the context of the “criminal alien bar,” which limits jurisdiction of review in federal appellate courts to constitutional claims and questions of law when the petitioner has been convicted of certain removable criminal offenses. The Fifth Circuit had determined that whether a petitioner had acted with sufficient due diligent to warrant equitable tolling of the 90-day deadline for a motion to reopen was a question of fact that could not reviewed if the criminal alien bar had been triggered. Both requests for equitable tolling were premised on new Fifth Circuit case law, and there was no dispute as to how long after that case law came out the petitioners waited to file their motions to reopen.

The court remanded the cases for the Fifth Circuit to exercise jurisdiction over the appeals and determine if equitable tolling was appropriate.

The full text of Guerrero-Lasprilla v. Barr can be found here:

https://www.supremecourt.gov/opinions/19pdf/18-776_8759.pdf

BIA Permits Reliance on Interpol Red Notice

The BIA has indicated that an Interpol Red Notice is sufficient evidence to indicate that a respondent may have committed a serious nonpolitical crime. In the instant case, DHS submitted an Interpol Red Notice reflecting that a warrant had been issued by the Magistrates Court of San Salvador, for the respondent’s arrest regarding a violation of article 345 of the Salvadoran Penal Code, which proscribes participation in an “illicit organization.” The notice further alleged that the respondent was a hitman for a gang. The BIA concluded that the notice was sufficient to shift the burden to the respondent to prove by a preponderance of the evidence that the serious nonpolitical crime bar does not apply—in other words, to show that there are not serious reasons for believing that he committed a serious nonpolitical crime.

The full text of Matter of W-E-R-B- can be found here:

https://www.justice.gov/eoir/page/file/1256481/download

BIA Addresses Flight Risk for Asylum Seeker

In an appeal of a bond decision, the BIA has determined that an asylum seeker who has no family, employment, or community ties and no probable path to obtain lawful status is properly considered a flight risk.

The full text of Matter of R-A-V-P- can be found here:

https://www.justice.gov/eoir/page/file/1258971/download

Eleventh Circuit Finds NY Sexual Misconduct Conviction not Rape Aggravated Felony

The Eleventh Circuit has determined that a New York conviction for sexual misconduct is not categorically a rape aggravated felony. The court declined to determine if the conviction - which covers both statutory and forcible rape offenses - is divisible. Assuming divisibility, the court found that the complaint did not establish whether the petitioner was convicted of a forcible or statutory rape offense. The complaint alleged that he engaged in both types of rape, and the plea itself did not specify to which form of rape he pled.

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

http://media.ca11.uscourts.gov/opinions/pub/files/201814000.pdf

Seventh Circuit Remands to Evaluate Continuance for U visa

The Seventh Circuit reaffirmed that Immigration Judges “have the power to waive an alien’s inadmissibility, grant continuances, defer removal, and take other similar steps that may be required before a U visa is issued.” As such, it remanded for further analysis as to whether the petitioner was entitled to a continuance. “If the Board believed that Guerra Rocha’s request for a continuance was not warranted even though her application for the U visa was prima facie valid, it had to explain why it took that position. It is not enough merely to announce that it has taken account of all relevant factors.”

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D03-04/C:18-3471:J:Wood:aut:T:fnOp:N:2482817:S:0 

Tenth Circuit Rejects Two-Step Stop Time Rule

The Tenth Circuit has rejected a two-step stop time rule for cancellation of removal. Service of a Notice to Appear that lacks the time of the first removal hearing does not trigger the stop time rule, and the rule is still not triggered when the Immigration Court issues a hearing notice that contains this information. “d. In our view, the stop-time rule is triggered by one complete notice to appear rather than a combination of documents.”

The full text of Banuelos-Galviz v. Barr can be found here:

https://www.ca10.uscourts.gov/opinions/19/19-9517.pdf

Ninth Circuit Addresses Standard of Review for CAT Claims

The Ninth Circuit found that the BIA erred by applying a de novo standard of review to an IJ’s factual determinations in a Convention Against Torture case. The proper standard of review for such factual findings is clear error. “Whether government officials act with specific intent to torture is a question of fact that is subject to clear error review.” “What is likely to happen to a petitioner if deported to a certain country is also a question of fact that the BIA may reject only for clear error. “

The court also rejected the government’s argument that evidence of primitive and abusive practices on mental health patients categorically is insufficient to support an inference of specific intent to inflict harm.

The text of Guerra v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/03/03/18-71070.pdf

Ninth Circuit Addressed Divisibility of CO Burglary Statute

The Ninth Circuit has determined that Colorado’s burglary statute is not divisible with respect to the structures that may constitute a dwelling, and that the definition of dwelling is a categorical match to the generic definition of burglary provided by the Supreme Court.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/03/04/18-35457.pdf

Ninth Circuit Disagrees with Matter of M-S-

The Ninth Circuit has determined that asylum seekers who enter without inspection and pass their credible fear interviews are constitutionally entitled to a bond hearing, despite the Attorney General’s decision in Matter of M-S-. The court affirmed the District Court’s injunctive relief requiring bond hearings, noting the harm caused the class members due to “substandard physical conditions [in detention centers], low standards of medical care, lack of access to attorneys and evidence as Plaintiffs prepare their cases, separation from their families, and retraumatization of a population already found to have legitimate circumstances of victimization.”

The court remanded for further factfinding by the District Court to support its order requiring a bond hearing to take place within 7 days of the asylum seeker requesting the hearing, as well as other procedural protections related to burden of proof and recording of the hearings.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/03/27/19-35565.pdf

Eighth Circuit Finds MN Drug Statute Divisible

The Eighth Circuit has determined that the Minnesota drug statutes are divisible, and the identity of the controlled substance is an element of the statute.

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

https://ecf.ca8.uscourts.gov/opndir/20/03/182826P.pdf

Eighth Circuit Rejects Exception to Non-Reviewability of Sua Sponte MTRs

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

Seventh Circuit Finds IAC for Failure to Advise about U Visa Eligibility

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

Fifth Circuit Applies Realistic Probability Test to Texas Drug Statutes

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

Second Circuit Addresses Pre-2016 UCMJ Sentencing Scheme

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/

BIA Addresses Landowners as a PSG

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

AG Issues New Decision on CAT Eligibility

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

BIA Affirms Prior Determination that MD Conviction for Sexual Solicitation of a Minor is CIMT

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

Eleventh Circuit Remands Asylum Claim Based on Ineffective Assistance of Counsel

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