Ninth Circuit Addresses Immigration Consequences of a Nevada Conviction for Possession of Paraphernalia

In light of the Supreme Court's recent decision in Mellouli v. Lynch, the Ninth Circuit held that a conviction for violating Nevada's possession of paraphernalia statute is not categorically a controlled substance offense.  The court remanded the case for the agency to determine whether the modified categorical approach should be employed, and if so, what impact the application of the modified categorical approach would have on the petitioner's application for relief.

The full text of Madrigal-Barcenas v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/10/10-72049.pdf

BIA Addresses Jurisdiction in Asylum-Only Proceedings and the Necessary Instructions for Biometrics

In a published decision, the Board of Immigration Appeals (Board) determined that it has no jurisdiction to determine whether asylum-only proceedings were improvidently initiated by the Department of Homeland Security (DHS).  The respondent alleged that he did not enter the United States under the Visa Waiver Program, and thus, placing him in asylum-only proceedings was inappropriate.  The Board suggested that the federal courts may be the proper forum for litigating this issue.

In addition, the Board held that when a respondent indicates an intention to apply for a form of immigration relief that requires the DHS to collect his biometric information, the Immigration Judge should do all of the following on the record: (1) ensure that the DHS has advised the applicant of the need to provide biometrics and other biographical information and has furnished the appropriate instructions; (2) inform the applicant of the deadline for complying with the requirements of which he has been notified; and (3) inform the applicant of the consequences of noncompliance, including the possibility that the application will be deemed abandoned and dismissed, unless the failure to comply resulted from good cause.

The full text of Matter of D-M-C-P- can be found here: http://www.justice.gov/eoir/file/643221/download

Sixth Circuit Grants Petition for Review of a Frivolous Asylum Application Determination

Wisam Yousif applied for asylum on the basis of past persecution he had suffered in Iraq as a Chaldean Christian.  Throughout the proceedings, Yousif provided contradictory evidence, leading the Immigration Judge to conclude that he had fabricated the entire narrative of past persecution.  Four years after the application was first filed, the Immigration Judge denied it and deemed it o be frivolous.  Nevertheless, the Department of Homeland Security conceded at that time that a pattern or practice of persecution against Chaldean Christians was occurring in Iraq, and stipulated to a grant of withholding of removal for Yousif.  

Yousif appealed, noting that the evidentiary standard for withholding of removal is higher than that for asylum, and thus, if he was eligible for withholding of removal on the basis of a clear probability of future persecution, he was necessarily eligible for asylum based on a well-founded fear of future persecution, even if his allegations of past persecution were fabricated.  Essentially, he argued that his allegations of past persecution were immaterial because they did not change the outcome - he was statutorily eligible for asylum.

On appeal, the Sixth Circuit stated that the frivolous nature of an asylum application must be judged based on circumstances in existence at the time of filing, not at the time of adjudication.  Thus, if at the time Yousif filed his application, he would have been eligible for asylum based on a well-founded fear of future persecution due to a pattern or practice of persecution of Chaldean Christians in Iraq, his allegations of past persecution (even if fabricated) were immaterial, and could not support a frivolous finding.  If, however, the conditions in Iraq at the time of filing would not have given rise to a well-founded fear of persecution absent some past persecution, Yousif's fabricated allegations were material, and could support a frivolous finding.  The court remanded for the Immigration Judge to evaluate the materiality of the fabricated allegations at the time the application was filed.

The full text of Yousif v. Lynch can be found here: http://www.ca6.uscourts.gov/opinions.pdf/15a0181p-06.pdf

Fifth Circuit Finds that Birth on a Military Base Abroad does not Confer Birthright Citizenship

Jermaine Thomas was born on a U.S. military base in Germany to a naturalized U.S. citizen father and a foreign national mother.  Thomas' father had not been physically present in the United States prior to his birth for a sufficient period of time to transmit citizenship to him.  When Thomas placed in removal proceedings for criminal activity, he claimed to have been born in the United States by virtue of his birth on a military base, and thus, to be entitled to birthright citizenship under the Fourteenth Amendment.  The Fifth Circuit disagreed, finding that birthright citizenship does not extend to military bases outside the territorial boundaries of the United States.

The full text of Thomas v. Lynch can be found here: http://www.ca5.uscourts.gov/opinions/pub/14/14-60297-CV0.pdf

8th Circuit Finds that a Minnesota Conviction for Obstruction of Legal Process is not a Crime of Violence

The Eighth Circuit, addressing a conviction under Minn. Stat. § 609.50, subd. 2(2), determined that the conviction was not a crime of violence aggravated felony.  Although the statute prescribed conduct involving "force or violence," the state law definition of this phrase required less than the "violent force" required under the definition of a crime of violence.  Thus, the conviction did not qualify as an aggravated felony.

The full text of Ortiz v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/08/142428P.pdf

Ninth Circuit Finds that CA Petty Theft Offenses are Overbroad and Indivisible

In a short unpublished case, the Ninth Circuit determined that California's definition of petty offense is categorically overbroad and indivisible as compared to the generic definition of a theft offense.  As such, it can never be a theft aggravated felony, regardless of the sentence imposed.

The full text of Chavez v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/memoranda/2015/08/06/11-73977.pdf

Sixth Circuit Addresses Retroactivity of AEDPA and IIRIRA

The petitioner was convicted in 1995 of a shoplifting offense.  At the time, his conviction would not have posed a statutory bar to suspension of deportation.  However, when the Government ultimately initiated removal proceedings against him 2010, suspension of deportation had been replaced with cancellation of removal, and the conviction was a bar to cancellation of removal.  The Immigration Judge determined that the changes in the law brought about by AEDPA and IIRIRA that prevented him applying for suspension of removal (which had been abolished) and rendered him ineligible for cancellation of removal applied retroactively.

On appeal to the Board of Immigration Appeals, the petitioner requested a remand because his U.S. citizen daughter had turned 21 and filed a petition to immigrate him.  The Board denied his motion, finding that he did not merit remand as a matter of discretion, given his 4 DUI convictions and other criminal history.  The Board affirmed the Immigration Judge's retroactivity analysis.

The Sixth Circuit affirmed the agency's decisions, finding the language of AEDPA to be clearly retroactive.  The Sixth Circuit also affirmed the Board's discretionary denial of the motion to remand, finding the petitioner had not presented sufficient evidence of equities or rehabilitation to the Board to compel an exercise of discretion.

The full text of Velasco-Tijero v. Lynch can be found here: http://www.ca6.uscourts.gov/opinions.pdf/15a0180p-06.pdf

Ninth Circuit Addresses Arizona Aggravated Assault Statute

In an unpublished decision, the Ninth Circuit determined that a conviction under Arizona Revised Statutes §§ 13-1203(A)(3) and 13-1204(A)(8)(e) for aggravated assault is not categorically a crime involving moral turpitude.  The court recognized that under Arizona law, the intent predicates in § 13-1203(A)(3) constitute only means of committing the crime of assault, not separate elements.  Arizona courts have held that  statutes that prohibit one act committed with different mental states are construed as defining a single offense, and therefore, a jury need not unanimously decide which subset mental state the defendant had while committing the crime. As such, the intent predicates are not alternative elements.  

The full text of Govindarajan v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/memoranda/2015/08/05/11-71533.pdf

Ninth Circuit Analyzes Sufficiency of a Criminal Complaint

In an unpublished disposition, the Ninth Circuit found an insufficient connection between the minute order and a complaint.  The minute order stated that the defendant pled guilty to count one in the complaint.  However, it also stated "DA to file amended info."  The Court found that the Government had failed to prove by clear and convincing evidence that the defendant had pled guilty to count one as enumerated in the complaint, and thus, under the modified categorical approach, the complaint was not sufficient to establish the identity of the substance involved in the offense.

The full text of Sanchez-Nino v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/memoranda/2015/08/04/13-71814.pdf

Eighth Circuit Remand for Voluntary Departure

In an interesting procedural posture, the Eighth Circuit affirmed all of the agency's denials of a petitioner's applications for asylum, withholding of removal, and protection under the Convention Against Torture, as well as the denial of his motion to reopen.  The Immigration Judge had denied the petitioner's application for voluntary departure as well, which he had appealed to the Board of Immigration Appeals.  The Board of Immigration Appeals had failed to address the voluntary departure denial, and the Eighth Circuit remanded specifically for the Board of Immigration Appeals to issue a decision on the voluntary departure application.

The full text of Ademo v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/07/132621P.pdf

Eighth Circuit Permits Immigration Judge to Consult Non-Traditional Documents to Determine if a Non-Citizen was Convicted of a Crime

Curtis Fraser was initially granted lawful permanent residence through his U.S.-citizen wife.  Subsequently, the Department of Homeland Security (DHS) sought to strip him of his residency, arguing that he had previously been convicted in Canada of possession of cocaine for trafficking.  To support this allegation, the DHS submitted a Trial Disposition and an Information to the Court.  The Information identified the offense charged as possession of cocaine for the purpose of trafficking. The Trial Disposition referred to an attached indictment on which Fraser had been arraigned, but the Trial Disposition did not identify the offense to which Fraser pleaded guilty and for which he was sentenced. The government did not produce a document with the title “Indictment.” After a continuance, the government addressed this deficiency by providing the Immigration Judge (IJ) with a copy of the section of the Canadian Criminal Code that defines “indictment” to include an “information.”

Fraser argued that these records were insufficient to prove he had been convicted of an offense that rendered him inadmissible.  First, the Information was filed in Saskatchewan.  The Trial Disposition, in contrast, was filed in Manitoba.  Thus, Fraser argued there was not sufficient evidence to support the conclusion that the two documents referred to the same case.  Second, the Trial Disposition referred to an “indictment,” and the DHS only provided the Information. Fraser argued that without the referenced indictment, the Court could not know what offense he actually pleaded guilty to, since the Trial Disposition was silent on this issue.  Finally, the Information was the only document presented to the IJ that specified cocaine as the drug involved in the conviction. Had he been convicted of simple possession of marijuana, Fraser argued, he would be eligible for a waiver. 

Fraser also argued the IJ improperly relied on a police record and pardon documents to determine whether he had been convicted of an offense that made him inadmissible.  Fraser asserted that these additional documents were not “documents or records” the Immigration and Nationality Act identifies as ones that “shall constitute proof of a criminal conviction.”  The IJ did consider an uncertified police record, which contained Fraser’s name and identified a conviction for possession of a narcotic for the purpose of trafficking under the Narcotic Control Act. The IJ also considered documentation that showed Fraser received a pardon in Canada for a conviction for breach of the Narcotic Control Act with the same date and case number as the Information and the Trial Disposition.

The First Circuit approved of the IJ's review of these extra documents, finding that in combination, they established by clear and convincing evidence that Fraser had been convicted of an offense involving cocaine.  This use of uncertified police reports and other documents is troubling, and seems contrary to the Supreme Court's Taylor approach, which limits the documents a Court may consider to determine the immigration consequences of a conviction.  

The full text of Fraser v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/07/143187P.pdf

First Circuit Denies Petition for Review of Untimely Motion to Reopen

Rei Feng Wang initially applied for asylum based on China's One Child Policy and based on his testimony against the criminal organization that had smuggled him into the United States.  His application was denied.  Fifteen years later, he filed a motion to reopen based on changed country conditions, alleging that he had become a practicing Christian in the intervening years and that conditions for Christians in China had worsened during that time.  The agency denied his motion to reopen.  On appeal, the First Circuit agreed that Wang's baptism was a change in personal circumstances, not a change in country conditions, and that his country conditions evidence did not show a material change in country conditions.  As such, the First Circuit declined to address the circuit split as to whether a mixed petition - one presenting changes in both personal and country conditions - is sufficient to justify reopening.

The full text of Wang v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-1845P-01A.pdf

BIA Interprets the Stop-Time Rule for Cancellation of Removal

In a precedent decision, the Board of Immigration Appeals determined that the service of a Notice to Appear on a non-citizen does not stop his accumulation of continuous physical presence for the purpose of applying for cancellation of removal for non-lawful permanent residents if the Notice to Appear is never filed with an immigration court.  Marcos Victor Ordaz-Gonzalez was originally served with a Notice to Appear in 1998, but the Notice to Appear was never filed with an immigration court, and thus, removal proceedings never commenced against Mr. Ordaz.  In 2004, the Department of Homeland Security (DHS) served Mr. Ordaz with a second Notice to Appear, and when Mr. Ordaz sought cancellation of removal in court, the Immigration Judge denied his application, finding that service of the 1998 Notice to Appear ended his accumulation of the requisite ten years of continuous physical presence.  

The Board of Immigration Appeals disagreed, noting that "[a]ffording 'stop-time' effect to 'any' notice to appear, regardless of whether proceedings were ever commenced on that basis, would potentially render an alien ineligible for relief on the basis of a charging document that was invalid or otherwise insufficient to support a removal charge as issued.  And if proceedings were never commenced, the alien would not have the opportunity to contest, or require the DHS to prove, the allegations and charges contained in the notice to appear. In fact, if we were to adopt the DHS’s approach, even in situations where an alien was provided such an opportunity, a notice to appear that he or she has successfully defended against would nevertheless have “stop-time” effect in later proceedings.  We are not persuaded that Congress intended such far-reaching consequences."

The full text of Matter of Ordaz can be found here: http://www.justice.gov/eoir/file/639876/download 

Fifth Circuit Affirms that Asylum is not Available to a Person Whose Removal Order has been Reinstated

In a published decision, the Fifth Circuit affirmed the Board of Immigration Appeals' determination that a person whose removal order has been reinstated is eligible to apply only for withholding of removal and protection under the Convention Against Torture.  Even though the petitioner had been paroled back into the United States after her reinstated order was executed, she was still subject to the limitations on relief described in section 241(a)(5) of the INA, and could not apply for asylum.

The full text of Ramirez-Mejia v. Lynch can be found here: http://www.ca5.uscourts.gov/opinions/pub/14/14-60546-CV0.pdf

Ninth Circuit Issues Interesting Case on the Retroactivity of IIRIRA

In 1996, Congress passed a set of sweeping changes to the immigrations laws, collectively known as IIRIRA.  These changes imposed immigration consequences for many actions (including certain criminal convictions) that did not previously exist.  The Supreme Court has ruled that individuals who lawful permanent residence and subsequently committed a crime before the passage of IIRIRA would not be subject to the retroactive applications of these provisions.  The Ninth Circuit, in an unpublished decision, held that the laws would not apply retroactively even if the criminal conviction pre-dated the acquisition of residency (and thus, may have called into question whether the person was ever entitled to residency in the first place).

The decision has very broad language: "Of course, in the cases just cited, the alien had become an LPR before he committed a crime, whereas Serrano committed the crime in question before he became an LPR. But that is a distinction without a difference. We have held that where an alien had committed a crime but applied for immigration relief before IIRIRA became effective, application of IIRIRA’s provisions to the alien would be impermissibly retroactive.  If the mere filing for a form of immigration relief precludes retroactive application of IIRIRA’s changes, it follows as the night the day that actually obtaining LPR status before IIRIRA’s effective date precludes retroactive application."

The language could be potentially useful for lawyers arguing against the retroactive application of almost any of IIRIRA's provisions, even those that do not involve criminal convictions.

The full text of Serrano v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/memoranda/2015/07/22/12-70568.pdf

First Circuit Reverses Agency's Adverse Credibility Determination

Henry Mboowa applied for asylum from Uganda based on harm that he and his family experienced due to his involvement in a political youth movement that supported an opposition candidate for president.  The Immigration Judge and the Board of Immigration Appeals rejected Mboowa's application, finding his testimony was not credible.  In particular, the agency focused on several incidents of persecution that Mboowa testified about in court, but did not include in the supplemental statement attached to his asylum application.  However, as the First Circuit noted, these incidents were referenced in the asylum application itself, and thus, were not omitted from the written materials.  

"In concluding that these allegations were absent from Mboowa's initial application, the agency appears to have placed talismanic weight on Mboowa's supplemental statement to the exclusion of the I-589 Form that statement accompanied. But the agency supplied no rationale justifying its focus on the supplemental statement, leaving us with a firm sense that the I-589 Form itself was overlooked."

The First Circuit remanded the case to the Board of Immigration Appeals for further consideration of Mboowa's application for asylum.

The full text of Mboowa v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/13-1367P-01A.pdf

Eighth Circuit Denies Bosnian Asylum Claim

The Eighth Circuit rejected an appeal from a Bosnian national seeking asylum, who had been beaten several times by Croatian police, and whose daughter had been harassed at school.  The court also rejected the petitioner's argument that the Court improperly relied on the testimony of an expert witness whose name was not submitted on a witness list 15 days in advance of a hearing and his assertion that the use of an asylum officer's "assessment to refer" violated his due process rights.

The full text of Nanic v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/07/133246P.pdf

Third Circuit Addresses 212(h) Waivers for Conditional Permanent Residents Convicted of Aggravated Felonies

On appeal from a published Board of Immigration Appeals (BIA) case (Matter of Paek), the Third Circuit addressed the applicability of the aggravated felony bar in section 212(h) of the INA to non-citizens admitted to the United States as conditional permanent residents.  The Third Circuit deferred to the BIA and found that the aggravated felony bar applies with equal force to those admitted as conditional residents as it to those admitted as non-conditional permanent residents.

The full text of Paek v. Attorney General can be found here: http://www2.ca3.uscourts.gov/opinarch/143982p.pdf

The BIA's decision in Matter of Paek can be found here: http://www.justice.gov/sites/default/files/eoir/legacy/2014/09/17/3813.pdf

Seventh Circuit Affirms Denial of Continuance and I-751

Parashu Giri married a U.S. citizen and obtained conditional permanent residence through his marriage.  Though he and his wife filed a joint petition to remove the conditions on his residence, they failed to appear for their interview.  His U.S.-citizen wife, Tammy, eventually sent a letter to U.S. Citizenship and Immigration Services (USCIS) withdrawing her support for the joint petition.  Nevertheless, four years later, the couple filed another joint petition to remove the conditions.  USCIS denied the petition, finding that Parashu maintained a relationship with his first wife after their divorce and had a child with her during his marriage to Tammy.  Thus, USCIS concluded that Parashu had entered into the marriage with Tammy solely for the purpose of evading the immigration laws.  Parashu was referred to Immigration Court for removal proceedings.

On the date of his merits hearing, his attorney requested a continuance because Parashu had not been fingerprinted and because she 800 pages of documents demonstrating the bona fides of Parashu's marriage to Tammy that she had been unable to timely file because she had only received them the day before.  The Immigration Judge (IJ) denied the motion for a continuance, finding that Parashu had had 2 years to prepare his application, and ordered him removed.  The Board of Immigration Appeals (BIA) affirmed the IJ's determination on appeal.

On appeal to the Seventh Circuit, the court found that the denial of Parashu's request for a continuance was permissible.  "The IJ denied the continuance because Parashu had over a year and a half to prepare for the merits hearing, which Parashu requested accelerated; he had been warned of the deadlines for filing his application and completing fingerprinting and failed to comply; he did not give a reason for his lack of compliance; and he did not request a continuance in advance of the merits hearing. This explanation is rational and neither inexplicably departs from established policies nor rests on an impermissible basis."  Though Parashu tried to argue to the Seventh Circuit that his continuance request was justified because his abusive wife was denying him access to needed documents, he did not make this argument before the IJ.

The Seventh Circuit also found that the IJ's determination of removability was proper because Parashu admitted the factual allegations necessary to sustain the charge of removabiilty.  

The full text of Giri v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D07-17/C:13-3767:J:Williams:aut:T:fnOp:N:1589570:S:0 

First Circuit Retains Jurisdiction and Orders BIA to Supplement its Findings

Joel Magnuriu applied for adjustment of status during immigration proceedings based on an approved I-360 petition classifying him as the abused spouse of a US citizen.  The Immigration Judge denied his application on discretionary grounds.  While on appeal, USCIS issued a notice of intent to revoke Manguriu's I-360, and because he did not respond to the notice, USCIS revoked the I-360.  When the case reached the First Circuit, the Government argued that the case was moot, since even with a remand, Manguriu had not relief available to him after the I-360 petition was revoked.  Manguriu argued the revocation was invalid because USCIS sent the notice of intent to revoke to the wrong address.  The notice was not in the administrative record, and the First Circuit determined that the Board of Immigration Appeals needed to supplement its findings on the issue of the revocation of the I-360 before it could decide whether a remand was warranted or would be fruitless.  

The full text of Manguriu v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-1279P-01A.pdf