Fifth Circuit Remands Asylum Denial to Cameroonian Nurse

The Fifth Circuit has remanded an asylum claim for a Cameroonian nurse, finding that the agency’s analysis of past persecution was insufficient, its analysis of nexus was incorrect, and its lack of corroboration finding was contradicted by the record. “Aben was arrested and detained three times; held in unlawful captivity for a total of six days; slapped, kicked, and knocked in the head; beaten with a belt and a stick; suffered several lacerations, blisters, sores, and bruises; threatened with death while held at gunpoint; and told he would be killed if he did not run fast enough to escape. The BIA’s determination must be vacated because it fails to account for the credible death threats that Aben received.”

“The BIA stated that the actions taken against Aben were not politically motivated but instead were taken due to his occupation as a nurse. However, the BIA failed to address the fact that Aben testified that the military imputed a political opinion to him because military members chastised him for treating ‘separatist fighters,’ and told Aben ‘you [Anglos] think you can fight the government. We will kill you one by one.’ He also testified that as he was being taken from his uncle’s home, he was told, ‘[Y]ou think you can fight us.’ Aben did not claim that the military was targeting him because he was a nurse. Rather he argues that he was perceived to be assisting separatists and later accused of fighting against the government. The BIA does not address this evidence.“

“The BIA and IJ faulted Aben for not documenting his injuries with pictures or medical records. But Aben stated that the Cameroonian authorities seized his cellphone and that he was afraid to use one because of what the authorities would do if they found documentation. He also stated that he avoided hospitals because of fear. Accordingly, the two means of documenting his injuries that the IJ faulted Aben for not using appear unavailable to him based on the record.”

The full text of Aben v. Holder can be found here:

https://www.ca5.uscourts.gov/opinions/pub/20/20-60937-CV0.pdf

Ninth Circuit Finds Faulty Translation Violated Non-Citizen's Right to Counsel

The Ninth Circuit has determined that a non-citizen’s right to counsel was violated when an interpreter translated his right to counsel as the right to “hire” an attorney. “Considering these circumstances, Valdivias’s right to counsel was effectively lost in translation by the interpreter’s repeated use of the Spanish word for ‘hire’ in describing that right. This suggested that Valdivias could enjoy the privilege of being represented only if he could pay for an attorney. But as the statutory and regulatory scheme make clear, Valdivias had the right to be represented by a pro bono attorney if he could locate one; and, indeed, he was entitled to a list of lawyers, organizations, and referral services willing to help him obtain pro bono representation.” “Because Valdivias was allowed to proceed pro se without having validly waived his right to counsel, his removal proceedings violated due process.”

The full text of U.S. v. Valdivias-Soto can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/09/20-10415.pdf

Ninth Circuit Construes Jurisdictional Provisions Regarding Adjustment of Status Applications

The Ninth Circuit 8 USC § 1252(a)(2)(B) does not strip courts of jurisdiction over review of USCIS policies and procedures (as opposed to adjudication of individual applications for adjustment of status). The Court further determined that claims challenging such policies brought by plaintiffs who had not yet filed for adjustment of status were not yet ripe. Finally, the Court rejected the plaintiffs’ contention that 8 USC § 1252(a)(2)(B) did not bar review of adjustment of status applications filed outside of the immigration court system.

“We recognize that individuals like P. Peddada—who have not violated any immigration laws—must violate the law to render themselves removable and obtain judicial review.”

The full text of Nakka v. USCIS can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/06/22-35203.pdf

Ninth Circuit Finds that Death Threats and Physical Harm in Tandem Rise to Past Persecution

The Ninth Circuit has determined that an asylum applicant who suffered contemporaneous physical harm and death threats experienced past persecution.

The full text of Kumar v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/02/23-308.pdf

An order depublishing this case can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/02/23-308.pdf

Ninth Circuit Holds that Abuse in US not Relevant to CAT Analysis

The Ninth Circuit has determined that the agency is not required to consider child abuse that took place in the United States when considering whether a deported parent is likely to torture their child in their country of origin.

The full text of GC v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/30/21-1228.pdf

Ninth Circuit Reverses Habeas Grant to Immigration Detainee

The Ninth Circuit has reversed a habeas grant to a detainee in immigration custody because the detainee failed to name his immediate custodian, the warden of the facility where he was detained, as the respondent to his petition. The detainee had named the ICE Field Office Director, rather than the warden at Golden State Annex, as the respondent. In addition, because the Golden State Annex is physically located in the Eastern District of California, that was the proper district for filing habeas, not the Northern District, where the ICE Field Office is located.

The full text of Doe v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/29/23-15361.pdf

Sixth Circuit Remands an Asylum Claim based on Domestic Violence

The Sixth Circuit has remanded a domestic violence and family-based asylum claim, noting the change in law governing these claims. “[T]o summarize, our decision to remand Marta’s application directly responds to: (1) the IJ’s near-exclusive reliance on A-B-I to broadly proclaim that victims of domestic violence do not qualify for asylum protection, and to ignore her factfinding obligations thereto; (2) the subsequent change in immigration authority that directs the agency to afford careful, case-by-case adjudication to asylum claims relating to domestic violence; (3) the Board’s disregard of immigration authority and Sixth Circuit precedent requiring the remand of pending applications in light of the glaring change in immigration authority here; and (4) the Board’s misapplication of the circularity rule in Marta’s case.”

The full text of Tista-Ruiz de Ajualip, et al. v. Garland can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0170p-06.pdf

Fourth Circuit Finds no Jurisdiction to Review District Court Remand Order

The Fourth Circuit has determined that it has no jurisdiction to review an order from the District Court remanding a delayed naturalization application to the agency. “Simply stating the standard may be enough to explain why it is not met here. The district court’s remand order did not ‘end the litigation on the merits’ of Dubon’s naturalization petition. It did the opposite: It declined to address the merits at all, and instead provided for further adjudication of the merits before the agency. When the district court issued its order, in other words, a determination on the crucial issue in this litigation – Dubon’s eligibility to naturalize – was yet to come. And because that question remained ‘open’ and ‘unfinished,’ the district court’s § 1447(b) remand was not a ‘final decision’ as that term generally is defined under § 1291.”

The full text of Dubon v. Jaddou can be found here: https://www.ca4.uscourts.gov/opinions/222280.P.pdf

Fourth Circuit Remands Cancellation of Removal Application

The Fourth Circuit has reviewed the agency’s hardship determination in a cancellation of removal application and remanded the proceedings because it was not clear that the Immigration Judge had considered a treating therapist’s predication that removal of the applicant would increase the likelihood that her daughter would engage in self harm.

The full text of Garcia Cortes v. Garland can be found here: https://www.ca4.uscourts.gov/opinions/221930.p.pdf

Fourth Circuit Rejects Asylum Claim of Mentally Ill Asylum Applicant

The Fourth Circuit has determined that the forcible institutionalization of a mentally ill man does not compel the granting of asylum when the man’s mental illness caused him to behave in a disruptive and violent manner.

The full text of Joshi v. Garland can be found here:

https://www.ca4.uscourts.gov/opinions/231236.P.pdf

Ninth Circuit Determines it has Authority to Ascertain Date of Change in Foreign Law

The Ninth Circuit has determined that it has the authority to determine the date of change in foreign law, even when the administrative record is unclear about this information. In this case, because the Department of Homeland Security misstated the date of the change in foreign law during its cross-examination, the Court determined that the improper cross-examination may have had a substantial prejudicial effect on the agency’s assessment of the applicant’s credibility. “While the INA thus places strict limits on our ability to consider additional ‘evidence’ that is not contained in the agency record, it does not similarly restrict our ability to conduct independent legal research concerning any question of law that properly arises in our consideration of a petition for review of a removal order.” “And, here, the issue of the effective date of the relevant Chinese law’s repeal is a readily resolvable question of law, not a question of fact.” The Court further concluded that in interpreting foreign law, it may consult “any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.”

The full text of Shen v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/24/16-71315.pdf

Fourth Circuit finds that VA Solicitation of Prostitution Conviction is CIMT

The Fourth Circuit has affirmed that a Virginia conviction for solicitation of prostitution is a crime involving moral turpitude. The Court rejected the argument that societal attitudes toward prostitution had sufficiently changed such that solicitation of prostitution was no longer base conduct.

The full text of Ortega-Cordova v. Garland can be found here: https://www.ca4.uscourts.gov/opinions/221700.P.pdf

Third Circuit Transfers PFR to Sixth Circuit

The Third Circuit has determined that the Sixth Circuit is the proper appellate venue for a detained matter filed with the Cleveland Immigration Court, even though the immigration judge was sitting in Virginia, and the applicant was detained in Pennsylvania. “Therefore, in the context of remote proceedings or hearings, the physical locations of the IJ and other participants are not what dictates the answer to the question of where the proceedings occur. Instead, we agree with the First, Second, Seventh, and Ninth Circuits that ‘proceedings’ take place in the Immigration Court in which the proceedings began, unless there is a formal change of venue. Judicial venue under § 1252(b)(2) thus aligns with administrative venue.” The court, accordingly, transferred the petition for review to the Sixth Circuit,

the full text of Castillo v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/232123p.pdf

Second Circuit Finds that Death Threats are not Per Se Past Persecution

The Second Circuit has determined that death threats are no per se past persecution, noting that they will rise to the level of persecution only if the applicant can point to aggravating circumstances indicating that the death threat was “so imminent or concrete” or “so menacing as itself to cause actual suffering or harm.”

The full text of KC v. Garland can be found here: https://ww3.ca2.uscourts.gov/decisions/isysquery/ffede890-ad84-46c5-93e1-549ef45053a5/9/doc/20-3043_opn.pdf

Ninth Circuit finds that CA Carjacking Conviction is not Crime of Violence

The Ninth Circuit has determined that has a California conviction for carjacking is not a crime of violence aggravated felony. “On a plain reading, section 215 defines carjacking more broadly than section 16(a) by not requiring the use of force.” The court further concluded that the use of fear required by the statute does not necessarily include the use of force. The court additionally concluded that the statute requires only a reckless mens rea, which is less than is necessary to match the definition of a crime of violence. “In sum, section 215 criminalizes carjacking committed through fear and without the use of force, as well as carjacking committed through the unintentional use of force.” The court further determined the statute is not divisible.

The full of Gutierrez v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/02/21-130.pdf

Fourth Circuit Finds that Inadmissible and Deportable LPR was Eligible for Naturalization

The Fourth Circuit has determined that a lawful permanent resident who became inadmissible and deportable by virtue of a conviction entered after he obtained his residency is stil eligible to naturalize. The court examined the regulation at 8 CFR § 316.2(b), focusing ont he requirement that a permanent resident be lawfully admitted to the United States during any subsequent reentry.  The Court concluded that simply because the applicant was inadmissible due to his conviction at the time of his last entry to the United States, that did not change that he was lawfully admitted as a permanent resident when he reentered the United States, as it was undisputed that he continued to enjoy his permanent resident status at the time of his reentry.  

The full text of Azumah v. USCIS can be found here: https://www.ca4.uscourts.gov/opinions/222175.P.pdf

Eighth Circuit Address Lawfulness of Temporary BIA Member and Religious-Based Asylum Claim

The Eighth Circuit has determined that the terms of temporary members of the Board of Immigration Appeals (Board) can be renewed. The court also remanded a religion-based asylum claim, remanding for the Board to consider whether statements and actions by gang members demonstrated that the applicant’s evangelizing was one central reason for the harm he suffered.

The full text of Rivera v. Garland can be found here: https://media.ca8.uscourts.gov/opndir/24/07/232351P.pdf

Fifth Circuit finds no Jurisdiction over APA Delay Challenge Involving Pending Adjustment

The Fifth Circuit has determined that it lacks subject matter jurisdiction over a claim under the Administrative Procedure Act that an adjustment of status application has been unreasonably delayed.

The full text of Cheejati v. Blinken can be found here: https://www.ca5.uscourts.gov/opinions/pub/23/23-40398-CV1.pdf

Third Circuit Finds that Confinement as a Result of Conviction Includes Pre-Conviction Confinement

The Third Circuit has determined that the phrase “confined as a result of conviction,” as it is found in the list of good moral character bars, includes time spent in pre-conviction confinement.

The full text of Aguilar v. Attorney General can be found here:  https://www2.ca3.uscourts.gov/opinarch/183320p.pdf

Second Circuit Finds no Authority for 237(a)(1)(H) Waiver for Conditional Resident who Failed to File Joint I-751 Petition

The Second Circuit has determined that a non-citizen whose conditional residence is terminated for failure to file a joint petition to remove the conditions is not eligible to seek a waiver under section 237(a)(1)(H) of the INA, even if the failure to file the joint petition is related to to marriage fraud.

The full text of Bador v. Garland can be found be found here: https://ww3.ca2.uscourts.gov/decisions/isysquery/413f83c3-2f65-479a-a951-2b9c1c3c5908/3/doc/22-6492_opn.pdf