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 Board of Immigration Appeals has determined that the failure to check one of three classification boxes (arriving alien, alien present with admission or parole, or admitted alien) on a Notice to Appear does not deprive of an Immigration Judge of jurisdiction over a removal proceeding and does not warrant termination of the removal proceedings of an individual returned to Mexico under the Migrant Protection Protocols.
The full text of Matter of Herrera-Vasquez can be found here:
The Tenth Circuit has ruled that the regulatory departure bar does not prevent the Immigration Judge from exercising his sua sponte authority to reopen proceedings. The departure bar applies only to a motion to reopen filed by one of the parties, which differs from an Immigration Judge’s authority to sua sponte reopen proceedings. ‘Thus, the IJ may move sua sponte to reopen removal proceedings even when either or both the ninety-day time bar or the post-departure bar would defeat an alien’s ‘motion to reopen’.”
The full text of Reyes-Vargas v. Barr can be found here:
The Ninth Circuit has determined that a Nevada conviction for possession of visual presentation depicting sexual conduct of a person under 16 years of age is not a sexual abuse of a minor aggravated felony. The court noted that “the Nevada statute does not require proof that the offender participated in sexual conduct with a minor, as required under the first two elements of the federal generic definition. That requirement is grounded in the ordinary meaning of ‘sexual abuse.’” “The Nevada statute punishes possession of a visual depiction of a minor engaged in sexual conduct, but knowing and willful possession of the image alone renders an offender guilty. The offender himself need not have participated in any form of sexual conduct with the minor who is depicted in the image.” “With a possession-only offense such as N.R.S. § 200.730, the minor depicted in the image is not the direct object of the offender’s conduct, which is a necessary predicate for the offense to qualify as ‘sexual abuse of a minor.’”
The court remanded for the agency to address in the first instance if the conviction qualified as an aggravated felony related to child pornography, but the government admitted that statute is likely overbroad compared to the generic definition of that aggravated felony.
The full text of Mero v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/01/17-70929.pdf
The Ninth Circuit has certified the question of whether Arizona’s drug statutes are divisible with respect to the identity of the substances regulated.
The order in Romero=Millan v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/04/16-73915.pdf
The Ninth Circuit has determined that the failure to include the address of the Immigration Court where a Notice to Appear will be filed does not deprive the Immigration Court of jurisdiction over the removal proceedings. The regulatory violation is cured by the subsequent issuance of a notice of hearing with the location information. The court deferred to the Board of Immigration Appeals’ decision in Matter of Rosales Vargas.
The full text of Aguilar Fermin v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/05/18-70855.pdf
The Ninth Circuit has granted a petition for en banc rehearing of Tovar v. Zuchowski, a case construing the definition of a derivative spouses for U visa purposes.
The order granting the petition can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/07/18-35072_en%20banc_order.pdf
My blog post on the original 3-judge panel decision can be found here:
The Ninth Circuit affirmed the Board of Immigration Appeals’ (BIA) refusal to exercise its sua sponte authority to reopen or reconsider the removal order of a deported lawful permanent resident after the Ninth Circuit determined that her conviction was not a deportable offense. The court declined to adopt the “settled course of adjudication” doctrine (which would have required the court to recognize the BIA has a settled policy of reopening cases under similar circumstances), finding that the doctrine is barred by the general rule that a federal court has no jurisdiction to review the BIA’s refusal to exercise its sua sponte authority. “Because the jurisdictional bar still applies, we have no authority to consider the consistency of the BIA’s decisions, or to even begin comparing the circumstances of the present case against the circumstances in past cases where sua sponte relief was granted.”
The court also found that the Board’s refusal to exercise equitable tolling was reasonable when the petitioner could have raised the same arguments on appeal that eventually were recognized by the Ninth Circuit in later case law. “We infer this to mean that, regardless of whether the change in law effected by Lopez-Valencia was ‘fundamental,’ Lona was not entitled to equitable tolling because (1) she failed to act with due diligence in discovering and raising the error asserted by Lopez-Valencia before the BIA and later, successfully, before us; and (2) she failed to do so despite the lack of impediments ‘to obtain[ing] vital information bearing on the existence of the claim.’ We agree.”
The full text of Lona v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/15/17-70329.pdf
The Eighth Circuit has determined that Minnesota convictions for Criminal Sexual Conduct in the Fifth Degree and Failure to Register as a Sex Offender are both crimes involving moral turpitude. In so doing, the court deferred to the Board of Immigration Appeals’ decision in Matter of Tobar-Lobo. “We see no bright line rule that excludes a regulatory offense from the scope of the statute when it involves reprehensible conduct and a culpable mental state.”
The full text of Bakor v. Barr can be found here:
The Eighth Circuit has determined that a Virginia drug statute is divisible with respect to the substances regulated by the statute.
The full text of United States v. Vanoy can be found here:
https://ecf.ca8.uscourts.gov/opndir/20/04/183165P.pdf
The Fourth Circuit has determined that a Virginia drug statute is divisible with respect to the identity of the controlled substance. As such, a conviction for distribution of cocaine as an accommodation is an aggravated felony and a controlled substance violation.
The full text of Cucalon v. Barr can be found here:
The Sixth Circuit has remanded a domestic violence based asylum claim, in which an IJ found that the applicant had suffered past persecution on account of a protected ground, but that the presumption of future harm had been rebutted because the applicant had been able to leave her abuser. The court noted that that “physical separation does not necessarily indicate that a relationship has ended—if it did, then any woman who escaped her persecutor and then filed an application for asylum on these grounds would be denied.” Moreover, during the year that she lived apart from her abuser, he continued to threaten her and their children with serious harm. While the applicant has since filed for divorce, her abuser refuses to consent to the divorce unless she relinquishes custody of their children to him.
In a footnote, the Sixth Circuit noted that it found the rationale of Grace v. Whitaker, which abrogated Matter of A-B-, to be persuasive, and as such, would likely find that the Matter of A-R-C-G- (which defined particular social groups as they relate to domestic violence) remains good law.
The full text of Juan Antonio v. Barr can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0156p-06.pdf
The Sixth Circuit has overturned a negative corroborating evidence determination in a withholding of removal case because the applicant was not given the opportunity to explain the absence of the corroborating evidence. The court further determined that an affidavit from the applicant’s sister was not reasonably available because she lived a 30-60 minute walk from a telephone that she had to pay to use, and the applicant accordingly only spoke with her about once per year. An affidavit was from the applicant’s mother was also unavailable because she still lived with the persecutor and because she could not write. Finally, the court determined that a withholding of removal applicant need only show that a protected ground is “a reason,” not “one central reason,” for the harm he suffered or fears suffering.
The full text of Guzman Vazquez v. Barr can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0155p-06.pdf
The Third Circuit has confirmed that a petitioner seeking cancellation of removal (a discretionary form of relief) still has a Fifth Amendment right to due process, including effective assistance of counsel. Thus, even an applicant for discretionary relief may assert an ineffective assistance of counsel claim, which is reviewable by the federal appellate court.
The full text of Calderon-Rojas v. Attorney General can be found here:
https://www2.ca3.uscourts.gov/opinarch/192332p.pdf
The Third Circuit has determined that the Board of Immigration Appeals’ decision in Matter of Diaz-Lizarraga, which broadened the definition of a theft-related crime involving moral turpitude, cannot be applied retroactively to a conviction sustained before the decision in Diaz-Lizarraga.
The full text of Francisco-Lopez v. Attorney General can be found here:
https://www2.ca3.uscourts.gov/opinarch/192700p.pdf
The Second Circuit has remanded the withholding of removal application of a former Jamaican police officer for further analysis of the Jamaican police force’s ability to protect him from harm. The court noted that while the police warned the petitioner that gang members were planning to kidnap his child, they did nothing to assist him in preventing the kidnapping, and in fact, told him he was “on his own.” The court, however, rejected the petitioner’s challenges to the new “unable to protect” standard articulated in Matter of A-B-, and remanded for the court to fully consider the evidence of the police force’s inability to protect using that new standard. The court also remanded for the agency to determine what significance a finding of government inability to protect would have for petitioner’s request for protection under the Convention Against Torture.
The full text of Scarlett v. Barr can be found here:
https://www.ca2.uscourts.gov/decisions/isysquery/ec637e79-751a-4c7c-be42-250e07dfdb75/22/doc/16-940_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/ec637e79-751a-4c7c-be42-250e07dfdb75/22/hilite/
The First Circuit has determined that it has jurisdiction to review constitutional claims or errors of law that arise in the agency’s adjudication of sua sponte motions to reopen. The Court also found that the “BIA departed from its settled course of accepting full and unconditional pardons granted by a state's supreme pardoning authority when the pardon is executive, rather than legislative, in nature. The BIA's policy has been shaped by its prior decisions accepting pardons from authorities whose powers were conferred by statute and rejecting pardons that were not deliberative, even when constitutionally guaranteed. From these BIA decisions, it is evident that "executive in nature" does not require the power to pardon be presently inscribed in a state's constitution. As the BIA premised its denial of Thompson's motion to reopen on the insufficiency of a Connecticut pardon for purposes of the Pardon Waiver Clause, we remand to the BIA to determine whether to reopen Thompson's immigration proceedings sua sponte against the correct legal background.”
The full text of Thompson v. Barr can be found here:
http://media.ca1.uscourts.gov/pdf.opinions/18-1823P-01A.pdf
The First Circuit has found no due process violation in an Immigration Judge’s reliance on reports from the Boston Regional Intelligence Center’s gang databased in order to find an asylum applicant not credible and unworthy of an exercise of discretion.
The full text of Diaz Ortiz v. Barr can be found here:
http://media.ca1.uscourts.gov/pdf.opinions/19-1620P-01A.pdf
The Board of Immigration Appeals (Board) determined that a Haitian asylum applicant had been firmly resettled in Brazil when he was offered permanent residence, even though he did not complete the ministerial steps required to claim that residence. “For purposes of determining whether an alien is subject to the firm resettlement bar to asylum, a viable and available offer to apply for permanent residence in a country of refuge is not negated by the alien’s unwillingness or reluctance to satisfy the terms for acceptance.” “An alien also cannot nullify an offer of firm resettlement by allowing his qualifications for permanent residence to lapse or by purposefully becoming ineligible.”
“[T]he evidence he presented of discrimination and criminal activity against Haitians in Brazil is limited in scope and does not establish that the Brazilian Government actively supports any mistreatment of Haitians that would constitute a conscious and substantial restriction of the respondent’s residence. Moreover, there is no evidence that the Brazilian Government restricted his right to travel or any other common, basic human right, with the exception of the right to vote, which is generally reserved to citizens.“
The full text of Matter of K-S-E- can be found here:
https://www.justice.gov/eoir/page/file/1267846/download
The Board of Immigration Appeals (Board) has denied a cancellation of removal for non-lawful permanent residents case for an applicant who had six qualifying relatives (five U.S.-citizen children and one lawful permanent resident mother). The Board noted that three of the children and the mother had health issues. However, because the applicant and his partner gave conflicting testimony about where the children would live if he was deported, and his partner and mother gave conflicting testimony about the cost of his daughter’s medication in Guatemala, the Board agreed that he had not demonstrated the requisite hardship.
The full text of Matter of J-J-G- can be found here:
The Supreme Court has determined that a criminal offense can trigger the stop-time rule for cancellation of removal for lawful permanent residents even if the offense is not the basis for the charge of removability. Accordingly, a lawful permanent resident can trigger the stop-time rule with an offense that triggers inadmissibility, even if the lawful permanent resident is not seeking admission.
The full text of Barton v. Barr can be found here:
https://www.supremecourt.gov/opinions/19pdf/18-725_f2bh.pdf
