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 First Circuit has rejected a claim that a Massachusetts conviction fo possession with intent to distribute is not an aggravated felony because the mens rea for accomplice liability differs under state law from federal law. The court found no realistic probability that a defendant could satisfy the state mens rea standard but not the federal mens rea standard.
The full text of Soto-Vittini v. Barr can be found here:
The First Circuit has determined that an individual who departed the United States for 98 days under an in absentia removal order broke his continuous physical presence for the purpose of Temporary Protected Status. Although an Immigration Judge rescinded the removal order, the Board of Immigration Appeals later determined that the rescission was inappropriate. The First Circuit left open the possibility that a properly reopened removal order might negate the interruption to physical presence.
The full text of Machado Siagaran v. Barr:
On July 17, 2020, a federal district court ordered the Trump Administration to begin accepting DACA applications from individuals who have never before had DACA and to begin accepting Advance Parole applications from current DACA recipients.
The full text of the order in Casa de Maryland v. DHS can be found here
https://www.courtlistener.com/recap/gov.uscourts.mdd.403497/gov.uscourts.mdd.403497.97.0.pdf
Unfortunately, today the Administration issued a new DACA memo, stating that it will reject any DACA applications from individuals who have never had DACA, and that it will only grant Advance Parole in “exceptional circumstances,” a much higher standard than was applied to Advance Parole applications filed prior to the 2017 DACA Rescission memo. In addition, DACA renewals will be limited to one year timeframes going forward.
The full text of the memo can be found here:
https://www.dhs.gov/sites/default/files/publications/20_0728_s1_daca-reconsideration-memo.pdf
The Supreme Court has reversed Ninth Circuit precedent allowing the recipient of a negative credible fear determination to challenge that decision through a habeas petition in District Court. The Court noted that the relief sought was not release from unlawful restraint, which is the traditional relief granted by a habeas petition.
“This principle dooms respondent’s Suspension Clause argument, because neither respondent nor his amici have shown that the writ of habeas corpus was understood at the time of the adoption of the Constitution to permit a petitioner to claim the right to enter or remain in a country or to obtain administrative review potentially leading to that result. The writ simply provided a means of contesting the lawfulness of restraint and securing release.”
Perhaps even more alarming is the Court’s analysis of the petitioner’s due process rights. The petitioner physically entered the United States, and was apprehended about 25 yards from the border. Despite his entry, the Court determined that he no constitutional right to due process.
The full text of DHS v. Thuraissigiam can be found here:
https://www.supremecourt.gov/opinions/19pdf/19-161_g314.pdf
The Board of Immigration Appeals has determined that a person who entered without inspection can be subject to the Migrant Protection Protocols.
The full text of Matter of M-D-C-V- can be found here:
The Attorney General has backtracked on the Board of Immigration Appeals’ attempt to carve out a “rogue official” exception to protection under the Convention Against Torture (CAT). “To the extent the Board used ‘rogue official’ as shorthand for someone not acting in an official capacity, it accurately stated the law. By definition, the actions of such officials would not form the basis for a cognizable claim under the CAT. But continued use of the ‘rogue official’ language by the immigration courts going forward risks confusion, not only because it suggests a different standard from the ‘under color of law’ standard, but also because ‘rogue official’ has been interpreted to have multiple meanings.”
“This standard does not categorically exclude corrupt, low-level officials from the CAT’s scope. Rather, regardless of rank, a public official acts under color of law when he ‘exercise[s] power possessed by virtue of law and made possible only because he is clothed with the authority of law.’ Whether any particular official’s actions ultimately satisfy this standard is a fact-intensive inquiry that depends on whether the official’s conduct is ‘fairly attributable to the State.’” The Attorney General further noted that there should be no distinction between acts of torture by high ranking or low level officials.
The Attorney General vacated the Board of Immigration Appeals’ prior published decision on the case.
The full text of Matter of O-F-A-S- can be found here:
The Board of Immigration Appeals (BIA) has determined that an Arizona conviction criminalizing conduct involving “dangerous drugs” is divisible with respect to the identity of the drug. The BIA noted that certain substances carry more severe punishment, an indication that the substances are elements of the offense. Proceeding to the modified categorical approach, the BIA determined the substance at issue was methamphetamine, and as such, the respondent was convicted of a deportable offense.
The full text of Matter of P-B-B- can be found here:
The Eleventh Circuit has determined that the “zipper clause” does not prevent a District Court from reviewing the denial of a L-1A visa petition even after removal proceedings are commenced against the applicant. The court noted that an L-1A visa petition cannot be reviewed in removal proceedings, nor is it a decision to commence removal proceedings or execute a removal order.
The full text of Canal A Media Holding, LLC v. USCIS can be found here:
http://media.ca11.uscourts.gov/opinions/pub/files/201911193.pdf
The Eleventh Circuit has determined that the application of the stop-time rule to a pre-IIRIRA conviction would be impermissibly retroactive when the conviction did not render the individual deportable at the time of the plea, and when the individual would have been eligible for 212(c) relief.
“When he pled guilty to resisting an officer with violence on July 17, 1995, he would likely have known that his guilty plea would not render him immediately deportable. And but for the later enactment of the stop-time rule, that guilty plea also would not have cut off his accumulation of continuous presence towards eligibility for waiver of deportation under INA § 212(c). Thus, by pleading guilty, Mr. Rendon gave up constitutionally protected rights with the reasonable expectation that his resulting sentence would not affect his ability to remain present in this country. Applying the stop-time rule retroactively would add a new and unforeseen consequence to his guilty plea by rendering him ineligible for cancellation of removal.”
The full text of Rendon v. Attorney General can be found here:
http://media.ca11.uscourts.gov/opinions/pub/files/201910197.pdf
An amended opinion can be found here:
http://media.ca11.uscourts.gov/opinions/pub/files/201910197.op2.pdf
The Eleventh Circuit has determined that Georgia’s drug statutes are divisible with respect to the identity of the substance. As such, the court employed the modified categorical approach to determine that the petitioner’s conviction involved ecstasy, a drug listed in the Controlled Substance Act as MDMA.
The full text of Gordon v. Attorney General can be found here:
http://media.ca11.uscourts.gov/opinions/pub/files/201814513.pdf
The Ninth Circuit has remanded a request for protection under the Convention Against Torture filed by a lesbian woman who had been targeted by Los Zetas. “Both the IJ and the BIA relied on national efforts to combat drug cartels and the corruption of public officials in order to find that ‘the government’ would not acquiesce in any torture Petitioner might suffer. Yet the record compels the conclusion that the corruption of public officials remains a problem, including specifically with regard to Los Zetas. The BIA even admitted that ‘there are corrupt officials.’”
“In addition to the extensive country conditions evidence indicating the prevalence of acquiescence by public officials in the torture committed by Los Zetas generally, Petitioner testified that she was personally beaten severely and threatened with death at gunpoint by a member of Los Zetas, while Mexican police officers looked on and did not nothing but laugh. This testimony, which the IJ found credible, establishes the acquiescence of public officials in a past instance of torture.” “As explained above, the country conditions evidence shows that corruption of government officials, especially of the police with regard to drug cartels, and specifically with regard to Los Zetas, remains a major problem in Mexico. The country conditions evidence certainly does not indicate that low level government corruption has been so rectified as to render insufficient Petitioner’s testimony regarding acquiescence by specific police officers in Petitioner’s specific circumstances.”
“In summary, the record compels the conclusion that Petitioner has established the requisite level of acquiescence by public officials to satisfy that aspect of her CAT claim. She testified to multiple instances of such acquiescence in the past involving her personal circumstances, and presented extensive country conditions evidence documenting the widespread problem of public official acquiescence in Zetas crimes generally.”
With respect to internal relocation, “neither the IJ nor the BIA expressly stated that the burden was on Petitioner to prove impossibility of relocation, [but] their analyses strongly indicate that they applied this reasoning anyway. The BIA concluded that the IJ “‘found an absence of evidence indicating that the applicant could not relocate.’ The IJ stated that ‘Mexico is a large country’ and ‘[i]t seems unlikely that there is nowhere in Mexico that the applicant could live without being harmed.’ Neither the IJ nor the BIA cited any affirmative ‘[e]vidence that [Petitioner] could relocate to a part of [Mexico] where . . . she is not likely to be tortured.’”
“Moreover, contrary to the IJ’s and BIA’s findings, extensive record evidence shows that Los Zetas operate in many parts of Mexico.” “Neither the IJ nor the BIA cited any evidence that there are states in Mexico where Los Zetas are unable to operate.” “Even if Los Zetas did not find her, Petitioner is at heightened risk throughout Mexico on account of her sexual orientation. Extensive record evidence demonstrates that LGBTQ individuals are at risk throughout Mexico. We have rejected reasoning such as the IJ employed here, that an applicant can be deemed able to safely relocate based on hiding her fundamental identity.”
The full text of Xochihua-Jaimes v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/26/18-71460.pdf
The Ninth Circuit has determined that proposed social groups of “Mexican professionals who refuse to cooperate with drug cartels” and “Mexican agronomists who refuse to help cultivate drugs” lack social distinction. “Nothing in the record addresses whether Mexican society views either of Mr. Diaz-Torres’s proposed social groups as distinct. No laws or proposed legislation so indicate. Nor do any country conditions reports or news articles mention such a group.”
“Moreover, to the extent some of Mr. Diaz-Torres’s testimony does relate to the social distinction requirement, it did not satisfy his burden of proof as to that element. After all, the social distinction requirement is concerned with how others view Mr. Diaz-Torres—not how he believes others view him. Objective evidence ‘such as country conditions reports, expert witness testimony, and press accounts of discriminatory laws and policies, historical animosities, and the like may establish that a group exists and is perceived as ‘distinct’ or ‘other’ in a particular society.’ By contrast, the testimony of the applicant alone is insufficient to establish the social distinction of a proposed group unless the petitioner ‘satisfies the trier of fact that the [petitioner’s] testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate’ that the petitioner’s proposed group is socially distinct.”
The full text of Diaz-Torres v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/29/18-70141.pdf
The Ninth Circuit and the District of DC have both determined that the third country asylum ban - which renders most individuals ineligible for asylum if they transited through a third country en route to the US southern border - is unlawful.
The Ninth Circuit’s decision in East Bay Sanctuary Covenant v. Barr (which is currently stayed) can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/07/06/19-16487.pdf
The District of DC’s decision in Capitol Area Immigrants Rights’ Coalition v. Trump can be found here:
https://drive.google.com/file/d/1rth46otzfmBz07LxDIKlZzNlpFjk-CAD/view
This is excellent news for asylum seekers, as well as individuals whose asylum claims were denied solely on the basis of the third country ban. These latter individuals may now be able to reopen their proceedings to again pursue their asylum claims.
The Ninth Circuit has reaffirmed its prior precedent that a conviction in California for petty theft is a crime involving moral turpitude (CIMT). Although the court recognized that the California Supreme Court had clarified that non-permanent takings are criminalized under the petty theft statute (a conclusion that would render any pre-Diaz Lizarraga convictions to be overbroad as CIMTs), it also held that it was bound by the court’s prior precedent that petty theft is a CIMT. Only an en banc court could reverse that precedent.
The full text of Silva v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/07/10/16-70130.pdf
An amended opinion can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/30/16-70130.pdf
The Ninth Circuit has determined that an Oregon conviction for manufacturing or delivering marijuana is divisible between delivery and manufacture. Applying the modified categorical approach, the court determined that the petitioner was convicted of manufacturing marijuana, a felony offense under the Controlled Substance Act (CSA). The court recognized that delivery of marijuana would not be an aggravated felony because Oregon delivery offenses include solicitation offenses, which are not criminalized in the CSA.
The full text of Dominguez v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/07/21/18-72731.pdf
The Eighth Circuit has determined that a Minnesota conviction for obstruction of legal process is not categorically a crime involving moral turpitude. The court emphasized that the statute defines a general intent crime, and “ there is a realistic probability that Minnesota would apply its obstruction of legal process statute to cases that lacked the requisite degree of scienter necessary to constitute a crime involving moral turpitude.” Moreover, the conduct criminalized “need not result in any harm or injury whatsoever.”
The full text of Ortiz v. Barr can be found here:
The Seventh Circuit has rejected Matter of Castro Tum and reaffirmed the agency’s general authority to administratively close cases.
The full text of Meza Morales v. Barr can be found here:
The Seventh Circuit has determined that the Illinois definition of cocaine, which includes optical, positional, and geometric isomers, is overbroad as compared to the definition of cocaine in the Controlled Substance Act, which includes only optical and geometric isomers.
The full text of US v. Ruth can be found here:
https://cases.justia.com/federal/appellate-courts/ca7/20-1034/20-1034-2020-07-20.pdf?ts=1595264438
The Sixth Circuit has remanded a whistleblower’s asylum claim where the agency indicated that the corrupt government officials targeted the asylum seeker because he interfered with their business arrangements, and not because of his political opinions. “In cases such as those cited above, where a petitioner seeks asylum after refusing to take part in a corrupt government scheme, the corrupt officials will almost always be motivated, at least in part, by their own pecuniary interest. But where, as in Skripkov’s case, a petitioner’s anticorruption activities manifest themselves through acts of public protest, the government officials’ pecuniary interest and their desire to quell the petitioner’s political activities typically become inseparable.”
The full text of Skripkov v. Barr can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0223p-06.pdf
The Fourth Circuit has determined that a Virginia statute criminalizing willful discharge of a firearm in a public place without resulting bodily injury is not a firearms offenses because it does not contain an antique firearms exception. “We hold that the plain language of Virginia Code § 18.2-280(A), as supported by later acts of Virginia’s legislature and by decisions of its appellate courts, prohibits conduct involving the use of ‘any firearm,’ including antique firearms. Thus, Gordon was not required to identify a prosecution under the Virginia statute involving an antique firearm to defend against removal.”
“Our conclusion is not affected by the government’s claim that the Virginia conviction nevertheless qualifies as a removable offense because Gordon failed to present evidence of a conviction in Virginia under Section 18.2-280(A) for the discharge of an antique firearm.” “The flaw in the government’s argument, however, is its failure to recognize that when the state, through plain statutory language, has defined the reach of a state statute to include conduct that the federal offense does not, the categorical analysis is complete; there is no categorical match.”
The full text of Gordon v. Barr can be found here:
