BIA Clarifies Standards of Review in Asylum Adjudications

Last week, the Board of Immigration Appeals (BIA) addressed the appropriate standards of review in the asylum context.  Specifically, the BIA overturned its previous precedent and determined that an Immigration Judge's predictions about the likelihood of future events are factual findings, subject to a clearly erroneous standard on review.  However, whether an asylum applicant has established an objectively reasonable fear of persecution based on the events that the Immigration Judge found may occur upon the applicant’s return to the country of removal is a legal determination that remains subject to de novo review.  Accordingly, the BIA "will accept the underlying factual findings of the Immigration Judge unless they are clearly erroneous, and [] will review de novo whether the underlying facts found by the Immigration Judge meet the legal requirements for relief from removal or resolve any other legal issues that are raised."

The full text of Matter of Z-Z-O- can be found here: https://edit.justice.gov/sites/default/files/pages/attachments/2015/05/26/3838.pdf 

Supreme Court Issues a Decision on the Immigration Consequences of Drug Paraphernalia Convictions

The U.S. Supreme Court issued a great decision today interpreting the removability provisions related to possession of paraphernalia.  The Court determined that a conviction for possession of paraphernalia must be linked to a controlled substance defined in the federal Controlled Substances Act in order to have immigration consequences.  In so finding, the Court refused to defer to the Board of Immigration Appeals' (BIA) decision in Matter of Martinez Espinoza, which had held that paraphernalia convictions could carry immigration consequences regardless of whehter they were linked to a particular controlled substance because they were tied to the "drug trade in general."  "Drug possession and distribution convictions trigger removal only if they necessarily involve a federally controlled substance, while convictions for paraphernalia possession, an offense less grave than drug possession and distribution, trigger removal whether or not they necessarily implicate a federally controlled substance. The incongruous upshot is that an alien is not removable for possessing a substance controlled only under Kansas law, but he is removable for using a sock to contain that substance. Because it makes scant sense, the BIA’s interpretation, we hold, is owed no deference."

The full text of Mellouli v. Lynch can be found here: http://www.supremecourt.gov/opinions/14pdf/13-1034_3dq4.pdf

Ninth Circuit Applies Immigration Law in the Mariana Islands

Etumai Mtoched, a citizen of Malau, was admitted to the Commonwealth of the Northern Mariana Islands (CNMI) before U.S. immigration laws were extended to the CNMI.  Mtoched was convicted of assault with a dangerous weapon under CNMI laws in 1994.  In 2008, U.S. immigration laws were extended to include CNMI, and shortly thereafter, removal proceedings were initiated against Mtoched based on his conviction, which the Department of Homeland Security alleged qualified as a crime involving moral turpitude (CIMT).  The Immigration Judge (IJ) found that the conviction was, in fact, a CIMT, and determined that applying the U.S. immigration laws to Mtoched was not an impermissible retroactive application of law.  Mtoched indicated an intention to apply for a waiver under section 212(h) of the Immigration and Nationality Act (INA), but the IJ denied this request, finding that because Mtoched had been admitted to the United States, he needed to apply for the waiver in conjunction with an application for adjustment of status.  On appeal, the Board of Immigration Appeals affirmed the IJ's decision regarding whether Mtoched's conviction qualified as a CIMT and whether he was eligible for a waiver under section 212(h) of the INA, but declined to address his retroactivity argument, finding that it was beyond the scope of its authority to address.

On appeal to the Ninth Circuit, the court determined that extending U.S. immigration laws to CNMI did not violate the CNMI's right to self-government.  In addition, because Mtoched's conviction would have made him deportable under CNMI's immigration laws in effect at the time of his conviction, extending U.S. immigration law to him did not change his legal position.  Since Mtoched did not demonstrate that he would have been eligible for any form of immigration relief under the prior laws, the extension of U.S. laws did not impair of any of his rights.

With regard to whether Mtoched's conviction qualified as a CIMT, the court noted that the statute could be divided into three distinct offenses: (1) threatening to cause injury; (2) attempting to cause injury; or (3) purposely causing injury.  Because Mtoched was charged under the third offense, his conviction was a CIMT.  In support of this conclusion, the court noted that non-fraudulent CIMTs almost always involve an intent to harm another person.

Finally, the court affirmed prior Board case law indicating that individuals admitted to the United States many not seek a stand-alone waiver under sectino 212(h) of the INA.  As Mtoched was considered to have been admitted in nonimmigrant status, he could not seek the stand-alone waiver.

The full text of Mtoched v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/05/22/13-70295.pdf

Third Circuit Applies Material Support for Terrorism Bar

In Sesay v. Attorney General, the Third Circuit, faced with the tragic plight of a citizen of Sierra Leone forced to perform menial tasks for a rebel group who repeatedly beat him, affirmed the Board of Immigration Appeals' determination that Sesay's actions qualified as material support to a terrorist group.  Moreover, the Court declined to read a duress exception into the statute, and noted that only the Department of Homeland Security has the authority to waive the material support bar based on duress.

The full text of Sesay v. Attorney General can be found here: http://www2.ca3.uscourts.gov/opinarch/142996p.pdf

Fifth Circuit Addresses "Admitted in any Status" for Cancellation of Removal

Last week, the Fifth Circuit issued a terrific decision construing the requirements for cancellation of removal for lawful permanent residents.  Specifically, the court addressed what it means to be "admitted in any status" for the requisite 7 years.  The petitioner had been granted his lawful permanent residence less than 7 years prior to the commission of a controlled substance offense, but more than 7 years after he was waved into the United States as a passenger in a car.  The Board of Immigration Appeals had previously ruled that such a "wave through" constituted an admission, but in this case, had found that "admission in any status" requires admission in a lawful status.  The Fifth Circuit disagreed, and found that a wave-through was an admission in "any status," regardless of whether that status was legal or illegal, and such, the petitioner had the necessary 7 years following admission in any status to qualify for cancellation of removal for lawful permanent residents.

The full text of Tula-Rubio v. Lynch can be found here: http://www.ca5.uscourts.gov/opinions/pub/14/14-60183-CV0.pdf

Ninth Circuit Addresses Validity of an Appeal Waiver

In what can only be described as a truly fantastic decision, the Ninth Circuit granted a petition for review, finding that the petitioner did not knowingly, voluntarily, and intelligent waive his right to appeal when the Immigration Judge incorrectly advised him that he had been convicted of an aggravated felony and was ineligible for any form of immigration relief.  The court noted that under current caselaw AND caselaw in existence at the time of the Immigration Judge's decision, a conviction for grand theft in California was not categorically a theft offense because it included theft of labor and theft by false pretenses, both of which fell outside the generic definition of a theft offense. 

The full text of Garcia v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/05/20/11-73406.pdf

Eighth Circuit Dismisses Appeal of Cancellation of Removal Denial

For the third time this year, the Eighth Circuit has dismissed an appeal of a cancellation of removal application, finding that the agency's determination of whether a qualifying relative will suffer exceptional and extremely unusual hardship is not subject to federal court review.

The full (but brief) text of Salas-Caballero v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/05/142556P.pdf

Fifth Circuit Interprets Prior Derivative Citizenship Laws

Hamid Kamara was born in Sierra Leone in 1981. In 1990, his parents divorced in Texas.  Because Kamara was still residing in Sierra Leone, the state court did not order that one parent or the other receive custody of Kamara.  He later entered the United States as a visitor, and in 1994, he received his lawful permanent residence through his mother.  In 1998, when Kamara was 16 years old, his mother became a naturalized U.S. citizen.  Kamara was living with his mother at the time.  When Kamara applied to United States Citizenship and Immigration Services for proof that he had derived citizenship through his mother, his request was denied.  Kamara renewed this argument before the Immigration Judge, who found that he had not shown he was in his mother's "sole legal custody" at the time of her naturalization, and thus, could not establish his citizenship claim.  

On appeal, the Fifth Circuit determined that the derivative citizenship laws in force at the time of Kamara's 18th birthday only required him to show that he was in his mother's "actual uncontested custody," and not her "sole legal custody."  The "actual uncontested custody" standard was the correct one to apply when there is no judicial order regarding legal custody.  Because there was a factual dispute about whether Kamara lived in his mother's uncontested custody, the Fifth Circuit transferred the case to a District Court to adjudicate his citizenship claim.

The full text of Kamara v. Attorney General can be found here: http://www.ca5.uscourts.gov/opinions/pub/13/13-60807-CV0.pdf

Second Circuit Construes "Stop-Time" Rule

The Second Circuit deferred to the Board of Immigration Appeals' (BIA) decision in Matter of Camarillo and determined that proper service of a Notice to Appear (NTA), even if it does not specify the time and date of a court hearing, is sufficient to stop the accumulation of physical presence necessary for a cancellation of removal application.  In doing so, the Court reiterated some of the reasons relied on by the BIA for finding that service of the "incomplete" NTA was sufficient to trigger the stop-time rule, including that scheduling of hearings is handled by the Department of Justice, while service of the NTA is handled by the Department of Homeland Security and the stop-time rule was enacted to ensure that non-citizens did not have a motivation (i.e. the continued accumulation of physical presence)  to prolong their proceedings unnecessarily. 

The full text of Guaman-Yuqui v. Lynch can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/f34213d5-f073-4e44-b6fb-794d631e1075/3/doc/14-200_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/f34213d5-f073-4e44-b6fb-794d631e1075/3/hilite/

BIA Clarifies the Extent of a 237(a)(1)(H) Waiver

In Matter of Agour, the BIA confirmed that an adjustment of status qualifies as an admission, and thus, any fraud committed during the adjustment process can be waived under section        237(a)(1)(H) of the INA, even if the applicant previously entered the United States in an other status without committing any fraud to procure that entry.  The BIA explored the historical evolution of the immigration laws, which have shifted the focus away from whether a person has effectuated an "entry" into the United States to whether a person has been admitted, and concluded that this evolution, as well the statutory language of section 237 of the INA (which covers inadmissibility at the time of entry or adjustment), mandated that fraud in an adjustment be treated the same as fraud in an entry - in other words, that both be waiveable under section 237(a)(1)(H) of the INA.

The full text of Matter of Agour can be found here: http://www.justice.gov/sites/default/files/pages/attachments/2015/05/18/3837_0.pdf

Eleventh Circuit Addresses a Federal Conviction for Coercing a Minor into Sexual Activities

In a fairly unsurprising determination, the Eleventh Circuit determined that a violation of 18 U.S.C. § 2422(b), which prohibits knowingly persuading, inducing, enticing, or coercing a minor to engage in sexual activity, is a crime of violence under federal sentencing laws.  "Since the conduct encompassed by the elements of §2422(b) involves a sex crime against a minor, the ordinary or generic violation of § 2422(b) involves a substantial risk the defendant may use physical force in the course of committing the offense."  As such, it it qualifies as a crime of violence under 18 U.S.C. § 16(b).  For the same reasons, a conviction under this statute is certainly a crime of violence for immigration purposes.

The full text of U.S. v. Keelan can be found here: http://media.ca11.uscourts.gov/opinions/pub/files/201311878.pdf

The Board of Immigration Appeals Changes Course on 212(h) Waivers for Lawful Permanent Residents Convicted of Aggravated Felonies

In Matter of J-H-J-, the Board of Immigration Appeals (Board) withdrew its previous opinions finding that lawful permanent residents convicted of aggravated felonies are never eligible for a waiver under section 212(h) of the INA.  The vast majority of circuit courts who had addressed this issue had disagreed with the Board, creating a lack of uniformity on the issue nationwide.  "We will therefore withdraw from our decisions in Matter of Koljenovic and Matter of E.W. Rodriguez and hold that section 212(h) of the Act only precludes aliens who entered the United States as lawful permanent residents from establishing eligibility for a waiver on the basis of an aggravated felony conviction." 

The full text of Matter of J-H-J- can be found here: http://www.justice.gov/sites/default/files/pages/attachments/2015/05/12/3836_0.pdf

Eleventh Circuit Corrects BIA's Erroneous View of the Evidence in a Motion to Reopen

From time to time, I find a great unpublished case whether a circuit court really goes to town with the Board of Immigration Appeals.  Today I found one from the Eleventh Circuit that I wanted to share.

Zheng filed a motion to reopen based on changed country conditions in China - namely, an increase in enforcement of the One Child Policy.  He submitted three reports which the Board of Immigration Appeals refused to consider because it determined they were incomplete.  The Eleventh Circuit, after reviewing the evidence, determined that Zheng submitted the entire contents of the first report.  Although he only submitted selected chapters of the second and third reports, he submitted the table of contents for each of these reports, demonstrating that he submitted the chapters relevant to his claim (and saved a lot of trees by not printing the rest). As such, the Eleventh Circuit found that the Board of Immigration Appeals abused its discretion in denying the motion to reopen and remanded the case for further consideration.

The full text of Zheng v. Attorney General can be found here: http://media.ca11.uscourts.gov/opinions/unpub/files/201411792.pdf

Eighth Circuit Addresses Iowa's Second-Degree Burglary Statute

In the context of a federal criminal sentencing case, the Eighth Circuit analyzed Iowa's second-degree burglary statute.  Noting that the statute criminalizes entrance into a variety of structures not covered by the generic definition of a burglary offense (i.e. a land, water or air vehicle), the court went on to reject the petitioner's argument that these alternative structures were not alternative elements, but actually alternative means that a jury was not required to unanimously agree upon to convict a defendant.  The court explicitly noted that the Supreme Court's decision in Descamps rejected such an approach to divisibility.  Thus, the court deemed the statute divisible, and examined the documents in the record of conviction.  This review led to the conclusion that the petitioner had entered garages during his burglary offenses, and thus, his offenses fell within the generic definition of a burglary offense. 

The Eighth Circuit recognized that its divisibility analysis contributed to a circuit split, putting it at odds with the Ninth and Fourth Circuits, but aligning it with the Second Circuit.  It also noted that at least one other circuit had declined to reference a separate statute that defined a term in the statute of conviction.  

The case is significant for immigration practitioners for two reasons.  First, it strongly suggests that a conviction for second-degree Iowa burglary can, under the modified categorical approach, qualify as a burglary aggravated felony.  Second, and more importantly, because the Board of Immigration Appeals defers to the law in an individual circuit defining a divisible statute, this case will set the tone for all immigration cases in the Eighth Circuit with regard to analyzing whether a statute is divisible.  The means/elements distinction raised by the petitioner (and recognized by several other circuit courts) will no longer play a role in Eight Circuit analyses of the immigration consequences of criminal convictions.  This, to say the least, is bad news for Eighth Circuit immigrants with a criminal history.  

The full text of USA v. Mathis can be found here: http://media.ca8.uscourts.gov/opndir/15/05/141213P.pdf

Eighth Circuit Affirms Denial of Motion to Reopen and Motion to Reconsider

Martinez filed an untimely motion to reopen his removal proceedings alleging changed country conditions in his home country of Guatemala.  He based his fear of returning to Guatemala based on the targeting of members of his church youth group, and provided evidence that a friend had been murdered in Guatemala since his last hearing.  However, the Board of Immigration Appeals denied his motion to reopen, noting that Martinez had not established that his murdered friend was a member of youth group or that his death was otherwise related to Martinez's asylum claim. The Eighth Circuit affirmed, finding that the friend's murder was simply indicative of violent conditions in Guatemala that already existed at the time of Martinez's merits hearing.  For similar reasons, the Eighth Circuit affirmed the Board of Immigration Appeals' denial of Martinez's motion to reconsideration of the denial of his motion to reopen.

The full text of Martinez v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/05/141213P.pdf

Seventh Circuit Addresses Stand-Alone 212(h) Waivers

In a relatively brief opinion, the Seventh Circuit deferred to the Board of Immigration Appeals' decision in Matter of Rivas, which determined that a lawful permanent resident charged with deportability grounds cannot seek a stand-alone 212(h) waiver, but must apply for the waiver in conjunction with an adjustment of status application.  The Seventh Circuit also affirmed an IJ's determination that a collateral attack on a criminal conviction is not necessarily good cause for a continuance.

The full text of Palma-Martinez v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D05-11/C:14-1866:J:Manion:aut:T:fnOp:N:1549550:S:0

BIA Issues Decision on Unlawful Voting

In Matter of Fitzpatrick, the Board of Immigrations Appeals (BIA) determined that unlawful voting by a lawful permanent resident could render the individual deportable, even if the person did not know she was committing an unlawful act by voting.  The BIA found that Fitzpatrick had violated a federal statute that did not require any specific intent - that is, it did not require the government to prove that Fitzpatrick intended to commit an unlawful act by voting, only that she actually voted and that she knew she was not a United States citizen.  Fitzpatrick tried to argue that she was exempt from the cited federal provision, but the BIA rejected her argument.

As states contemplate laws that automatically register people to vote when they apply for driver's licenses, this decision becomes all the more worrisome.  How many non-citizens, having been automatically registered to vote by the Department of Motor Vehicles and having received mail about where and when to vote, will unwittingly lose their immigration status by unlawfully voting?

The full decision in Matter of Fitzpatrick can be found here: 

http://www.justice.gov/file/3835pdf/download

Fourth Circuit Issues Fantastic Gang-Related Family-Based Particular Social Group Decision

Maydai Hernandez-Avalos was a Salvadoran woman.  In 2007, her husband's cousin, Augustin, was murdered by members of the Mara 18 gang.  She identified the body at the medical forensic lab.  After Augustin's funeral, heavily armed gang members came to Hernandez's home and threatened to kill her if she identified Augustin's murderers to the police. 

A few months later, five members of the Mara 18 gang came to her home and told her that it was time for her 12-year-old son Kevin to join the gang.  When Hernandez refused, the gang members put a gun to her and threatened to kill her if she opposed Kevin's membership in the gang.  On a third occasion, members of the Mara 18 again pointed a gun at Hernandez and threatened to kill her if she did not allow Kevin to join the gang within one day.  Hernandez testified that she did not report these threats to the police because gang members often learn the identity of those who report them and then retaliate against those individuals.

The Immigration Judge denied Hernandez's application for asylum, finding that she had not demonstrated that she would suffer harm on account of a protected ground or that the Salvadoran government was unable or unwilling to protect her.  The Board of Immigration Appeals affirmed this decision.

The Fourth Circuit reversed, finding that Hernandez was threatened on account of her membership in the particular social group comprised of her nuclear family.  "Hernandez’s relationship to her son is why she, and not another person, was threatened with death if she did not allow him to join Mara 18, and the gang members’ demands leveraged her maternal authority to control her son’s activities.  The BIA’s conclusion that these threats were directed at her not because she is his mother but because she exercises control over her son’s activities draws a meaningless distinction under these facts."  The court rejected the Government's argument that Hernandez was persecuted because she interfered with the gang's recruitment activities. "Because any reasonable adjudicator would be compelled to conclude that Hernandez’s maternal relationship to her son is at least one central reason for two of the threats she received, we hold that the BIA’s conclusion that these threats were not made 'on account of' her membership in her nuclear family is manifestly contrary to law and an abuse of discretion."

With regard to the issue of government protection, the court noted that "Hernandez, whom the IJ found to be a credible witness, provided abundant evidence that the authorities would not have been responsive to such a report. Hernandez’s affidavit, in combination with the other evidence presented in this case, suggests that the police in her neighborhood may be subject to gang influence."

The full text of Hernandez-Avalos v. Lynch can be found here: http://www.ca4.uscourts.gov/Opinions/Published/141331.P.pdf

First Circuit Addresses Whether a Conviction for Third-Degree Assault in Connecticut is an Aggravated Felony

Last week, the First Circuit addressed whether a conviction for third-degree assault in California could be properly characterized as a crime of violence under 8. U.S.C. section 16(a).  Both parties agreed that a conviction under this statute could not be a categorical match to the definition of a crime of violence because it criminalized reckless and negligent conduct, as well as intentional conduct.  In the instant case, the Third Circuit determined that use of the modified categorical approach was not appropriate because the record of conviction did not establish under which prong of the statute the petitioner had been convicted.  Moreover, the plea colloquy demonstrated that the petitioner disagreed with the prosecutor's version of events, making it even more unclear what conduct the conviction necessarily rested upon.  Thus, it could not determine if the conviction rested upon intentional conduct.  

The full text of Villanueva v. Holder can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-1217P-01A.pdf

Eleventh Circuit Weighs in on the Immigration Consequences of a Florida Conviction for Uttering False Instruments

The Seventh Circuit determined that a conviction under a Florida statute criminalizing uttering a false instrument necessarily entails a knowingly deceitful act, and thus, qualifies as a fraud-based aggravated felony if the crime resulted in a loss to the victim in excess of $10,000.  For the same reason, the conviction qualifies as a crime involving moral turpitude.

The full text of Walker v. Attorney General can be found here: http://media.ca11.uscourts.gov/opinions/pub/files/201412814.pdf