Seventh Circuit Declines to Address Challenge to Two-Step Stop Time Rule

The Seventh Circuit has declined to address a challenge to the two-step stop time rule put forth by the Board of Immigration Appeals (Board) in Matter of Mendoza-Hernandez. Instead, the court simply held that the petitioner waited too long to bring the challenge, as she had not even applied for cancellation of removal when she was in proceedings. This decision is oddly reasoned in my view, as the Board did not deny the motion to reopen on timeliness grounds, but instead, assumed the petitioner was entitled to equitable tolling.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D05-29/C:19-2375:J:Easterbrook:aut:T:fnOp:N:2523785:S:0

Seventh Circuit Upholds Waiver of Rights by Minor who Entered on Visa Waiver

The Seventh Circuit has upheld the validity of a waiver to challenge a removal order for a petitioner who entered the United States as a minor on the visa waiver program, and whose parent signed the waiver on his behalf.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D06-16/C:19-2055:J:Ripple:aut:T:fnOp:N:2531868:S:0

Sixth Circuit Defers to BIA on Jurisdiction over UAC Asylum

The Sixth Circuit has deferred to the Board of Immigration Appeals’ decision in Matter of M-A-C-O- and determined that an Immigration Judge properly assumed jurisdiction over the asylum application of an unaccompanied minor who did not file his asylum application until after his 18th birthday.

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

https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0178p-06.pdf

Fifth Circuit Construes TX Drug Conviction

The Fifth Circuit has acknowledged that a Texas cocaine statute, on its face, is broader than federal drug statutes, because it also criminalizes offenses involving the position isomers of cocaine. However, the court found that the petitioner did not prove a realistic probability that Texas courts prosecute offenses involving position isomers of cocaine.

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

http://www.ca5.uscourts.gov/opinions/pub/18/18-60748-CV0.pdf

Second Circuit Finds that CT Conviction for Unpermitted Carrying of a Pistol or Revolver is not Firearms Offense

The Second Circuit has determined that a Connecticut conviction for the unpermitted carrying of a pistol or revolver is not a firearms offense because the state statute criminalizes conduct involving certain antique firearms that is not covered by the federal definition of a firearms offense. “Connecticut criminalizes unlicensed carrying and transportation of loaded antique firearms; the federal definition excludes such conduct.” In addition, “the text of the Connecticut statute excludes only the ‘transporting’ of ‘unloaded’ antique pistols or revolvers from its general prohibition on ‘carrying’ unpermitted pistols and revolvers ‘upon [one’s] person.’ The INA definition of ‘firearm offense,’ in contrast, expressly excludes all conduct involving antique firearms.” The court also rejected the application of the realistic probability test, finding that the plain language of the statute demonstrated its overbreadth.

The full text of Williams v. Barr can be found here:
https://www.ca2.uscourts.gov/decisions/isysquery/0c7b55a5-be7b-43f5-ac93-5989936afec3/28/doc/18-2535_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/0c7b55a5-be7b-43f5-ac93-5989936afec3/28/hilite/

Second Circuit Finds that Misprision of a Felony is not CIMT

The Second Circuit has determined that a federal conviction for misprision of a felony is not a crime involving moral turpitude because it has no evil intent requirement. “The BIA’s decision that misprision categorically constitutes a CIMT is also unmoored from its own precedent. The BIA and courts have consistently 12 declared offenses that involve appreciably higher levels of moral culpability to be 13 insufficiently grave to qualify as CIMTs.” The Second Circuit decision aligns it with similar case law in the Ninth Circuit.

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

https://www.ca2.uscourts.gov/decisions/isysquery/0c7b55a5-be7b-43f5-ac93-5989936afec3/27/doc/18-801_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/0c7b55a5-be7b-43f5-ac93-5989936afec3/27/hilite/

Second Circuit Finds that CT Third Degree Sexual Assault Conviction is Crime of Violence

The Second Circuit has determined that a Connecticut conviction for sexual assault in the third degree is a crime of violence because it requires use of a dangerous instrument, actual physical force or violence, or superior physical strength, and thus, necessarily includes the use or threatened use of violent force as an element.

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

https://www.ca2.uscourts.gov/decisions/isysquery/0c7b55a5-be7b-43f5-ac93-5989936afec3/24/doc/16-296_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/0c7b55a5-be7b-43f5-ac93-5989936afec3/24/hilite/

Second Circuit Remands CAT Claim

The Second Circuit has determined that “[t]o hold categorically that an applicant for CAT relief must be threatened more than once and that such a person must suffer physical harm before fleeing is an error of law.” “Martinez’s testimony, which the IJ credited, established that she and her children were facing a sustained 17 campaign of violent confrontations. These included when gang 18 members flashed a knife at Martinez and when they attempted to force Martinez’s pregnant daughter into a secluded area and threatened to cut her child out of her body.”

The full text of Martinez De Artiga v. Barr can be found here:

ca2.uscourts.gov/decisions/isysquery/0c7b55a5-be7b-43f5-ac93-5989936afec3/7/doc/17-2898_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/0c7b55a5-be7b-43f5-ac93-5989936afec3/7/hilite/

First Circuit Finds IJ Violated Asylum Seeker's Right to Counsel

The First Circuit has determined that an Immigration Judge violated an asylum seeker’s right to counsel by only giving her 14 business days to secure counsel after she learned that her bond attorney could not continue representation. In addition, the court noted the many arguments made by counsel in the BIA appeal, which demonstrate that the presence of counsel at the IJ level likely would’ve had a material outcome on the proceedings.

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

http://media.ca1.uscourts.gov/pdf.opinions/19-1524P-01A.pdf

SCOTUS Overturns DACA Rescission

The Supreme Court has determined that the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program was arbitrary and capricious. In so doing, the Court relied only on the reasons given by Acting Secretary of Homeland Security (DHS) Elaine Duke in her original rescission memo, and not on the subsequent post hoc justifications presented by Secretary Kirstjen Nielsen. The Court further rejected Duke’s reliance on the Fifth Circuit’s decision finding that expanded DACA and Deferred Action for Parents of Americans (DAPA) were unlawful, insomuch as the Fifth Circuit had relied on the eligibility for benefits accorded to those who would qualify for expanded DACA and DAPA, and not on the forbearance of removal that would be accorded to these individuals. Thus, the Court concluded, Secretary Duke, if she was truly motivated by concerns that DACA was illegal given the Fifth Circuit’s decision, could have left the removal forbearance piece of DACA in place, while only removing the eligibility for certain benefits, such as work authorization, Social Security benefits, and Medicare. The Court also faulted Duke for not considering what reliance DACA recipients and their families, employers, and schools may have had on the original memo creating the DACA program. “Acting Secretary Duke should have considered those matters but did not. That failure was arbitrary and capricious in violation of the APA.”

The Court remanded the case to allow the agency to consider the issue anew. As such, the DHS could again try to rescind DACA using a more thoughtful and comprehensive decision-making process.

The full text of DHS v. Regents of University of CA can be found here:

https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf

BIA Finds that Failure to Check Classification Box does not Render NTA Defective

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:

https://www.justice.gov/eoir/page/file/1274901/download

Tenth Circuit Rules that Departure Bar Regulation does not Prevent Agency from Exercising Sua Sponte Authority to Reopen

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:

https://www.ca10.uscourts.gov/opinions/17/17-9549.pdf

Ninth Circuit Finds NV Conviction for Possession of Visual Presentation Depicting Sexual Conduct of Person under 16 Years of Age is not Sexual Abuse of a Minor Aggravated Felony

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

Ninth Circuit Certifies Question of Divisibility of AZ Drug Statutes to AZ Supreme Court

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

Ninth Circuit Finds that Failure to Comply with Regulation does not Deprive Immigration Court of Jurisdiction

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

Ninth Circuit Grants Rehearing En Banc Regarding Derivative U Visa Spouses

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:

http://www.sabrinadamast.com/journal/2020/2/1/ninth-circuit-affirms-u-visa-regulations-governing-derivative-spouses

Ninth Circuit Rejects Settled Course of Adjudication Doctrine

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

Eighth Circuit Finds MN Sex Crimes to be CIMTs

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:

https://ecf.ca8.uscourts.gov/opndir/20/05/183011P.pdf

Eighth Circuit Finds VA Drug Statute Divisible

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

Fourth Circuit Finds VA Drug Statute Divisible

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:

ca4.uscourts.gov/opinions/181292.P.pdf