Ninth Circuit Addresses the Intent of Participants in a Coup

Addressing the terrorist inadmissibility provision related to the use of firearms with intent to endanger another person, the court examined the actions of a person who planned a coup in the Philippines.  The Immigration Judge determined that the respondent did not have the requisite intent to endanger.  The Board of Immigration Appeals reversed  The Ninth Circuit assumed that the determination of intent would be a factual question, and thus, that the Board of Immigration Appeals was required to apply the clearly erroneous standard when reviewing the Immigration Judge's determination.  The court remanded to allow the Board of Immigrations to apply the proper standard.

The full text of Zumel v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/29/12-70724.pdf

Tenth Circuit Addresses the "Permanent Bar" for Minors

In an unpublished decision, the Tenth Circuit addressed the application of section 212(a)(9)(C) of the Immigration and Nationality (INA) - which defines the immigration consequences of re-entering the United States without admission having previously accrued at least one year of unlawful presence - to minors.  The court determined that even though the definition of unlawful presence in section 212(a)(9)(B) of the INA exempts minors from accruing unlawful presence, this exception does not apply to the inadmissibility provision in section 212(a)(9)(C) of the iNA.

The full text of Casillas-Casillas v. Lynch can be found here: 

https://www.ca10.uscourts.gov/opinions/14/14-9611.pdf

Fifth Circuit Finds a Petitioner Ineligible for Cancellation of Removal Based on Multiple Convictions for Which the Aggregate Sentences to Confinement were at Least Five Years

Deferring to the Board of Immigration Appeals' decision in Matter of Pina-Galindo, the Fifth Circuit held that a non-citizen who is inadmissible under section 212(a)(2)(B) of the Immigration and Nationality Act, for having been convicted of two or more offenses for which the aggregate sentences of confinement were 5 years or more, was not eligible for cancellation of removal for non-lawful permanent residents.  In so doing, the Fifth Circuit confirmed that the convictions need be for crimes involving moral turpitude or controlled substance offenses to render the non-citizen ineligible.

The full text of Pina-Galindo v. Lynch can be found here: http://www.ca5.uscourts.gov/opinions/pub/14/14-60752-CV0.pdf

Ninth Circuit Addresses Credibility under the REAL ID Act

In a precedential decision, the Ninth Circuit determined that an adverse credibility determination can be based solely on background documents.  Though the Immigration Judge determined that the petitioner testified consistently, she also determined that the events about which he testified (namely, attacks and harassment by Sikh militants in 1998, 2005, and 2006) were implausible because the background documents indicated that Sikh militants stopped operating in the 1990s.  The court acknowledged that its decision creates a circuit split with the Eleventh Circuit, which has held that an adverse credibility determination cannot solely be based on background documents.

The full text of Singh v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/21/08-74212.pdf

Sixth Circuit Addresses Proper Service of a Notice of Hearing

It is almost universally accepted that providing notice of a hearing date to a non-citizen's attorney is sufficient to notify the non-citizen of the hearing date.  The Sixth Circuit, however, is expressing some reluctance to find that notice to an attorney ALWAYS suffices to notify the client of a hearing date.  Though the court was willing to accept that providing written notice to the attorney in open court, while the client is present, is legally sufficient, it called into question whether mailing a notice to an attorney, without first trying to serve the non-citizen directly with the notice, would suffice.  "To summarize, we interpret [the statute] to require that personal service be made upon the alien whenever practicable and hold that, in certain cases, personal service to a represented alien’s counsel may constitute personal service to the alien."  This case may provide valuable analysis for attorneys filing motions to reopen based on insufficient notice when a client's prior attorney was served with the notice.

The full text of Cruz-Gomez v. Lynch can be found here: http://www.ca6.uscourts.gov/opinions.pdf/15a0229p-06.pdf

BIA Addresses the One-Year Filing Deadline and Credibility Standards for Asylum

The Board of Immigration Appeals (BIA) determined that where an applicant files two applications for asylum - one before the effective date of the REAL ID Act and one after the effective date - the later filing controls for determining whether the provisions of the REAL ID Act apply to the applicant.  A second filing will be considered a new application, as opposed to a supplement, if it is premised on a previously unraised basis for relief (i.e. fear of persecution based on a different protected ground) or if it is predicated on a new factual basis.  Similarly, the date of the later-filed application controls for determining whether an applicant has met the one-year filing deadline for asylum if the first application is found to be fraudulent.  The BIA also used broad language suggesting that even if the first application was not fraudulent, the date of filing of the second application would control for the filing deadline.  Specifically, the BIA stated that    "[t]he date the second asylum application was filed is controlling in determining the timeliness of the respondent's application for relief."

The full text of Matter of M-A-F- can be found here: http://www.justice.gov/eoir/file/762676/download

BIA Addresses the Use of Statements Made by Different Applicants in Multiple Proceedings

At issue in Matter of R-K-K- was the credibility of an asylum applicant whose application bore strikingly similar statements to the statements contained in his brother's asylum application.  The Board of Immigration Appeals (BIA) stated that "an Immigration Judge may rely on inter-proceeding similarities as part of an adverse credibility determination," but the BIA must "review such determinations with an especially cautious eye." 

The BIA adopted a three-part framework.  First, the Immigration Judge (IJ) must give the applicant notice of the similarities that the IN considers significant.  Second, the IJ must give the applicant a reasonable opportunity to explain the similarities.  Third, the IJ must consider the totality of the circumstances in making a credibility determination.  

In the instant case, the IJ was not convinced by the applicant's explanation that he and his brother had used the same transcriber, which the applicant alleged accounted for the similar syntax and spelling errors.  

The full text of Matter of R-K-K- can be found here: http://www.justice.gov/eoir/file/768196/download

Ninth Circuit finds that Voluntary Manslaughter is not a Crime of Violence

The Ninth Circuit held that California's voluntary manslaughter statute, which can be violated through reckless conduct, does not qualify as a crime of violence, which requires the intentional use of force.  In addition, the court held that a claim for protection under the Convention Against Torture must be evaluated "in terms of the aggregate risk of torture from all sources, and not as separate, divisible CAT claims."  Thus, the agency erred by failing to consider the aggregate risk of torture posed to the petitioner by both his status as a criminal deportee and his family affiliation.  

The full text of Quijada-Aguilar v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/01/12-70070.pdf

Ninth Circuit Addresses DUI Crimes and the Treatment of Transgender Individuals in Mexico

Edin Avendano-Hernandez was repeatedly beaten, sexually assaulted, and verbally abused by relatives and police officers because she is a transgender woman.  While in the United States, she was twice convicted of DUI-related offenses, including one DUI involving bodily injury.  The Ninth Circuit affirmed the agency's determination that this conviction was a particularly serious crime, noting that DUI crimes are inherently dangerous, and that Avendano-Hernandez inflicted injuries (albeit relatively minor ones) on the driver of another car.  The Ninth Circuit did note that it was improper to characterize an additional sentence imposed for a probation violation as a sentencing enhancement, but found that the agency's error on this point was harmless.  

Turning to Avendano-Hernandez's application for protection under the Convention Against Torture, the Ninth Circuit disagreed with the agency's finding that she failed to show that the Mexican government would more likely than not consent to or acquiescence in her torture. The court noted that Avendano-Hernandez had already been raped by government officials, and that rape was itself a form of torture.  Thus, because she had already been tortured by government officials, she need not make any of government acquiescence to torture by private individuals.  Turning to the issue of future torture, the Ninth Circuit chastised the agency for conflating laws that protect the gay and lesbian community with government protection of the transgender community.  "While the relationship between gender identity and sexual orientation is complex, and sometimes overlapping, the two identities are distinct."  Given that Mexico has one of the highest transgender murder rates in the world, the Ninth Circuit determined that Avendano-Hernandez was entitled to protection under the Convention Against Torture.

The full text of Avendano-Hernandez v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/03/13-73744.pdf

Eighth Circuit Dismisses Appeal of Untimely Motion to Reopen

The Supreme Court's recent decision in Mata v. Lynch makes clear that a federal court has jurisdiction to review whether a petitioner's request for equitable tolling of the 90-day deadline for filing a motion to reopen.  Typically, a petitioner seeking reopening of proceedings on the basis of ineffective assistance of counsel would make an equitable tolling request based on his inability to discover his prior attorney's substandard conduct.  Unfortunately for Babatunde Shoyombo, his motion to reopen requested sua sponte reopening of his proceedings based on his prior attorney's ineffective assistance, and did not make any arguments for equitable tolling.  As such, the Eighth Circuit invoked its long-standing precedent that it does not not have jurisdiction to review the denial of a sua sponte motion to reopen.

The full text of Shoyombo v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/08/142649P.pdf

Ninth Circuit Finds that Adjustment Applicant Reasonably Relied on Prior Circuit Case Law

In the long-awaited follow up decision to its 2012 en banc decision in Garfias-Rodriguz v. Holder, the Ninth Circuit found that an individual who had triggered the so-called "permanent bar" of inadmissibility under section 212(a)(9)(C)(i)(I) of the INA (re-entering or attempting to re-enter the United States without admission after accruing one year of unlawful presence) could still seek adjustment of status under section 245(i) of the INA if they had applied for for adjustment after the Ninth Circuit ruled on February 23, 2006 in Acosta v. Gonzales that adjustment was available to such individuals, and before the Board of Immigration Appeals ruled on November 29, 2007 in Matter of Briones that such individuals were ineligible for adjustment.  Applying the retroactivity analysis outlined in Montgomery-Ward & Co v. Federal Trade Commission , the Ninth Circuit determined that the petitioner, who had applied for adjustment of status under section 245(i) in July 2006 by an Immigration Judge, reasonably relied on the 2006 decision in Acosta when applying adjustment and paying the penalty fee under section 245(i) of the INA and by giving up his ability to take voluntary departure and spend the mandatory 10 year period outside the United States to try to seek waiver of the inadmissibility bar contained in section 212(a)(9)(C)(i)(I) of the INA. 

The Ninth Circuit rejected the Government's argument that the petitioner could not have reasonably relied on Acosta because the Board of Immigration Appeals had already issued Matter of Torres-Garcia, finding that individuals who were inadmissible under section 212(a)(9)(C)(i)(II) of the INA (re-entering or attempting to re-enter the United States without admission after being ordered removed) were not eligible for adjustment of status under section 245(i) of the INA.

The full text of Acosta-Olivarria v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/26/10-70902.pdf

Ninth Circuit Denies CAT Claim for Salvadoran With Tattoos

Salvador Amaya Andrade sought protection under the Convention Against Torture based on a fear of torture in El Salvador because he had two tattoos bearing his initials and his girlfriend's initials.  Though the Board of Immigration Appeals took note that deportees arriving in El Salvador were subject to arbitrary investigations and detentions, and that former gang members were subject to reprisals, and took note of the evidence of widespread violent crime, gang-related violence, impunity from prosecution and judicial corruption, and vigilante squads, it ultimately concluded that Andrade had not proved that “deportees (with or without tattoos) are likely to experience mistreatment rising to the level of torture.”  On appeal, the Ninth Circuit affirmed, finding that "[s]ubstantial evidence supported the BIA’s denial of relief on the ground that Andrade’s individual characteristics, being deported from a richer country and bearing non-gang tattoos, failed to establish a probability of torture upon his return to El Salvador."

Though the outcome for Mr. Andrade was not optimal, the Ninth Circuit's conclusion implies a tacit understanding that individuals with gang-related tattoos (or with tattoos that might be perceived as gang-related) might be able to demonstrate a sufficient probability of torture in El Salvador to warrant a grant of protection under the CAT.

The full text of Andrade v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/27/12-70803.pdf

Ninth Circuit Addresses Derivative Citizenship for Stepchildren of U.S. Citizens

The Ninth Circuit determined that step-children of U.S. citizens do not derive citizenship under the immigration laws, which provides citizenship only to the naturally born and legally adopted children of U.S. citizens.  In so doing, the Ninth Circuit agreed with the Board of Immigration Appeals' decision in Matter of Guzman-Gomez.

The full text of Acevedo v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/24/12-71237.pdf

Ninth Circuit Finds that Jurisdiction-Stripping Provision does not Apply to Judicial Review of a Denial of a Continuance

Typically, the federal courts have limited jurisdiction to review a final order of removal when the petitioner has been ordered removed based on criminal grounds.  The Ninth Circuit has held, in the context of a denied motion to continue, that the jurisdiction-stripping provisions do not apply to review of procedural motions that are independent of the merits of the removal order.

The full text of Garcia v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/18/12-70778.pdf

Ninth Circuit Finds that Attorney Provided Ineffective Assistance of Counsel

The petitioner's prior attorney had advised him to waive appeal of the Immigration Court's denial of his cancellation of removal application, and instead, pursue consular processing based on his marriage to a U.S. citizen.  The problem with this proposed course of action is that the petitioner was subject to the so-called "permanent bar" to admissibility under section 212(a)(9)(C) of the Immigration and Nationality Act.  Thus, he was not eligible to obtain his residency through consular processing.  The Ninth Circuit determined that this advice constituted substandard conduct by the prior attorney, and that the forfeiture of appeals rights prejudiced the petitioner's case.  Thus, the court determined that the petitioner's motion to reopen based on ineffective assistance of counsel was improperly denied.

The full text of Salazar-Gonzalez v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/20/11-73600.pdf

Eighth Circuit Finds that Petitioner Made a False Claim to US Citizenship on an Electronic I-9 Form

The Eighth Circuit addressed the use of an electronic I-9 form, which pre-populated the applicant's biographical data and selected the US citizen box by default.  Though the petitioner argued that the selection of the U.S. citizen box was accidental, the court found that by submitting the form under penalty of perjury, the petitioner had adopted all the assertions in it.  Because the petitioner had made a false claim to U.S. citizenship, he was not eligible for lawful permanent residence based on his marriage to a U.S. citizen.

The full text of Etenyi v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/08/143397P.pdf

Ninth Circuit Finds that California Theft Convictions are never Aggravated Felonies

In a follow up to several published and unpublished decisions that have suggested this holding, the Ninth Circuit issued a published decision finding that California theft crimes (which include theft of labor and theft by false pretenses) are overbroad and indivisible compared to the generic definition of a theft offense.  As such, they will never qualify as theft aggravated felonies, regardless of the sentence imposed.

The full text of Lopez-Valencia v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/17/12-73210.pdf

First Circuit Dismisses Appeal of a Denied Motion to Reopen

In a published decision, the First Circuit dismissed the appeal of a petitioner who claimed to have not received legally sufficient notice of his immigration court hearing.  Jonathan Ledesma-Sanchez.  Ledesma-Sanchez was served with a Notice to Appear in March 2010, but the Department of Homeland Security did not file the Notice to Appear with the Immigration Court until February 2011.  In the interim, Ledesma-Sanchez moved, but did not provide his updated address to the Immigration Court.  When the Immigration Court mailed a notice of his hearing, they mailed it to his old address, and he did not receive it.

The agency and the First Circuit both faulted Ledesma-Sanchez for failing to update his address with the Immigration Court, even though the Department of Homeland Security had not filed the Notice to Appear at the time of his move.  Nevertheless, this case illustrates a common consequence of the Department of Homeland Security's failure to file a Notice to Appear in a timely fashion.

The full text of Ledesma-Sanchez can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-1710P-01A.pdf

Eighth Circuit Finds that a California Forgery Conviction is Categorically a Crime Involving Moral Turpitude

In a relatively unsurprising decision, the Eighth Circuit determined that a conviction under section 472 of the California Penal Code (forgery) is categorically a crime involving moral turpitude because each act criminalized under the statute must be committed with an intent to defraud.

The full text of Miranda-Romero v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/08/143387P.pdf

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