Third Circuit Interprets Stop-Time Rule for Cancellation of Removal

Narinder Singh was admitted as a lawful permanent resident, and less than 7 years later, convicted of a crime of involving moral turpitude.  He subsequently traveled outside the United States, was readmitted as a lawful permanent resident, and more than 7 years later, was served with a Notice to Appear, charging him with removability based on his conviction.  He applied for cancellation of removal for lawful permanent residents, arguing that he had accrued the requisite 7 years in any status when he returned from his post-conviction trip abroad.  The Immigration Judge and the Board of Immigration Appeals disagreed, finding that his conviction "stopped the clock" on his accrual of 7 years of continuous residency after admission in any status, and that he could not start that clock again by traveling and being readmitted.

The Third Circuit agreed, finding that because Singh was charged with removability based on his criminal conviction, the clock was permanently stopped by the conviction.  The Court did acknowledge that its precedent would have allowed Singh to re-start his clock by traveling abroad if he were charged with a ground of removability unrelated to his criminal conviction.

The full decision of Singh v. Lynch can be found here: http://www2.ca3.uscourts.gov/opinarch/151152p.pdf

Happy Anniversary!

The Law Office of Sabrina Damast is celebrating an anniversary this week!  One year ago, the office opened its doors.  In the last year, I have had the privilege to represent dozens of clients in all manner of immigration cases, including asylum, waivers, appeals, and employment-based immigration cases.  It has been an amazing year, and I cannot wait to see what Year 2 has in store.  Thank you to all of the clients and families who have put their trust in me to help them navigate the complex world of immigration law.

Ninth Circuit Addresses a Nevada Conviction for Conspiracy to Possess a Credit Card Without Consent and Eligibility for Cancellation of Removal for Non-lawful Permanent Residents

In a published decision, the Ninth Circuit determined that a conviction under Nevada Rev. Stat. §§ 199.480 and 205.690(2) (conspiracy to possess a credit card without consent) is categorically a crime involving moral turpitude because it necessarily requires an intent to defraud.  In addition, the court deferred to the Board of Immigration Appeals' interpretation of the statute governing cancellation of removal for non-lawful permanent residents, and found that a conviction for a crime involving moral turpitude which is punishable by at least one year imprisonment renders any non-citizen (including one who has never been admitted to the United States) ineligible for cancellation.

The full text of Mancilla-Delafuente v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/11/02/12-73469.pdf

BIA Addresses Burdens of Proof for Analyzing Competency

The Board of Immigration Appeals (Board), in a precedent decision, has continued to expand its case law on the treatment of mentally incompetent non-citizens in removal proceedings. Today, the Board determined  that neither the non-citizen nor the Department of Homeland Security bears a formal burden of proof in immigration proceedings to establish whether or not the non-citizen is mentally competent, but where indicia of incompetency are identified, the Immigration Judge should determine if a preponderance of the evidence establishes that the non-citizen is competent.  Finally, a finding of competency is a finding of fact that the Board will review to determine if it is clearly erroneous. 

The full text of Matter of J-S-S- can be found here: http://www.justice.gov/sites/default/files/pages/attachments/2015/11/02/3851.pdf

Attorney General Refers BIA Cases for Review

The Attorney General has referred the Board of Immigration Appeals' published decision in Matter of Chairez and its unpublished decision in Matter of Sama to herself for review.  She is requesting briefing on the issue of whether the Supreme Court's decision in Descamps v. United States requires that a criminal statute be treated as “divisible” for purposes of the modified categorical approach only if, under applicable law, jurors must be unanimous as to the version of the offense committed.

The notice of referral and invitation for amicus briefs can be found here: http://www.justice.gov/sites/default/files/pages/attachments/2015/11/02/3852_correction.pdf

Ninth Circuit Revisits Prolonged Detention

In the latest decision in what can only be described as a saga, the Ninth Circuit affirmed that bond hearings are mandatory when a non-citizen has been detained for at least six months.  Recognizing the harm of prolonged detention, the Court also mandated that the Immigration Courts provide bond hearings every six months to evaluate continued detention and empowered Immigration Judges to order the release of a non-citizen without requiring the posting of a bond.  This is wonderful decision - hats off to the fantastic litigators who have been working on prolonged detention issues for years!

The full text of Rodriguez v. Robbins can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/10/28/13-56706.pdf

Second Circuit Addresses Prolonged Detention

The Second Circuit construed the "mandatory detention" provision of the Immigration and Nationality Act.  They found that a non-citizen who is convicted of a crime that falls under the provision need not be sentenced to a prison term for the criminal offense to come within the ambit of the detention provision.  In addition, even though the statute empowers ICE to take a non-citizen convicted of such an offense into custody "when the alien is released" from criminal custody, the Second Circuit determined that a break between criminal and immigration custody does not undermine ICE's authority to detain a non-citizen under the mandatory detention provision.  However, the Court also determined that continued detention for 6 months without a bond hearing violated the right to due process.  Thus, detainees in the Second Circuit who have been convicted of a mandatorily detention offense will be entitled to a bond hearing to evaluate whether they are a danger to the community or a flight risk after they have been incarcerated for 6 months.  

The full text of Lora v. Shanahan can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/0d6713f3-cfd7-437f-9bd9-77e159e4b6b4/1/doc/14-2343_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/0d6713f3-cfd7-437f-9bd9-77e159e4b6b4/1/hilite/

BIA Issues Two Decisions on Continuous Physical Presence

In a pair of companion cases, the Board of Immigration Appeals (BIA) clarified when a voluntary departure or voluntary return breaks a non-citizen's continuous physical presence for the purpose of ascertaining eligibility for cancellation of removal for non-lawful permanent residents. The BIA stated that a voluntary departure or return will not break an applicant's continuous physical presence, if, at the time of the departure, the applicant had the right to seek relief from removal before an Immigration Judge and was not informed of this right.  In other words, there must be some indication that the applicant, as part of a formal process, accepted voluntary return in lieu of being placed in removal proceedings. 

Evidence that the applicant was photographed or fingerprinted at the time of the departure is not sufficient to demonstrate the requisite formality of the process.  The BIA concluded "that where an alien has a right to a hearing before an Immigration Judge, there must be reliable testimonial and/or documentary evidence in the record to establish that the alien was informed of that right and waived it before a voluntary departure will be considered a sufficiently formal process to break his or her physical presence."  Thus, when evaluating whether a departure breaks an applicant's continuous physical presence, the Immigration Judge should consider (1) the date and place of the encounter underlying the purported presence-breaking departure; (2) the possibility that the alien was alternatively subject to exclusion, deportation, or removal proceedings in which there was a right to a hearing before an Immigration Judge; and (3) the formality of the process used, including how the threat of proceedings was communicated to the alien, what advisals were given, and whether the alien had knowledge that the agreement to depart was in lieu of being placed in proceedings.  Interestingly, the BIA noted that the Government attorney will typically be in a better position to offer documentary evidence regarding the formality of any departure.

The full text of Matter of Castrejon-Colino can be found here: http://www.justice.gov/eoir/file/788746/download

The full text of Matter of Garcia-Ramirez can be found here: http://www.justice.gov/eoir/file/788751/download

Seventh Circuit Overturns an Adverse Credibility Determination and Clarifies the Meaning of "Resistance to a Coercive Population Control Program"

Lishou Wang requested asylum on account of the beating he suffered at the hands of Chinese officials who implanted a contraceptive device in his wife's arm.  At first, Want referred to this procedure as a tubal ligation, but subsequently, he repeatedly described it as the implantation of a device (called a "Norplant") into her upper arm.  The Immigration Judge denied his application on two ground: 1) a tubal ligation and the implantation of a Norplant are such vastly different procedures that a person could not possibly confuse them; and 2) even if Wang's testimony was credible, he only resisted the implantation of a birth control device, and not a forced abortion or sterilization, and thus, he had not established that he has resisted a coercive population control program.  The Board of Immigration Appeals affirmed.

The Seventh Circuit reversed, finding that "[a]lthough tubal ligation is in fact different from a contraceptive implant, Wang said nothing at the hearing to suggest that he grasped the difference between the two procedures. Consequently the IJ lacked substantial evidence to use Wang’s misunderstanding of the term 'tubal ligation' to discredit his uncontradicted testimony that family-planning officials implanted a contraceptive device into his wife’s arm."  In addition, the court noted that "China’s 'coercive population control program' is not limited to only forced abortions and sterilizations; it also forces couples to use birth-control measures such as condoms, pills, and IUDs."  Thus, resisting the implantation of a birth control device could qualify as resistance to the coercive population control program.  

The full text of Wang v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D10-26/C:15-1261:J:Kanne:aut:T:fnOp:N:1645796:S:0

Second Circuit Limits the Applicability of the REAL ID Act

The Second Circuit determined that the REAL ID Act, by its terms, applies only to applications for relief.  Thus, the Board of Immigration Appeals erred by applying the standards of the Act to a contested removability determination.  This is a great decision for attorneys to reference when litigation so-called Quilantan cases, where there is an assertion that the non-citizen was admitted to the United States, but there may not be any documentary evidence to support the assertion.  

The full text of Ahmed v. Lynch can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/89caf325-4154-40e2-96f2-eebb31168c44/4/doc/14-1396_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/89caf325-4154-40e2-96f2-eebb31168c44/4/hilite/

Third Circuit Addresses Whether Misinformation Provided by a Government Employee May Toll the Filing Deadline for a Motion to Reopen

In an unpublished decision, the Third Circuit suggested that misinformation from a government employee (namely, an ICE officer who failed to inform him that he was eligible for bond or that he could seek relief from removal, and who instead convinced him to sign an expedited order of removal) may support an equitable tolling argument for a motion to reopen.  This equitable tolling could turn an untimely motion to reopen into a statutory motion to reopen (not subject to the post-departure regulatory bar) instead of leaving it as a sua sponte request for reopening.

The full text of Valdivinos-Lopez v. Lynch can be found here: http://www2.ca3.uscourts.gov/opinarch/144802np.pdf

Tenth Circuit Addresses Retroactivity of Matter of Briones

In 2005, the Tenth Circuit issued Padilla-Caldera v. Gonzales (Padilla-Caldera I), in which it determined that a non-citizen who was inadmissible 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 at least one year of unlawful presence) could seek adjustment of status under section 245(i) of the INA.  In 2007, the Board of Immigration Appeals disagreed with this conclusion in Matter of Briones, and in 2011, the Tenth Circuit deferred to the Briones decision in Padilla-Caldera II.  In the instant decision, the Tenth Circuit addressed the situation of an applicant who filed for adjustment of status after the decision in Padilla-Caldera I and before the decision in Briones.  The court found that the applicant has reasonably relied on the decision in Padilla-Caldera I, as such Briones did not apply retroactively to him. 

The full text of De Niz Robles v. Lynch can be found here: https://www.ca10.uscourts.gov/opinions/14/14-9568.pdf

First Circuit Construes Burden of Proof for Relief

In a published decision, the First Circuit addressed whether a non-citizen could meet his burden of proof to establish eligibility for relief with an inconclusive record of conviction.  Peralta Sauceda was convicted under an assault statute in Maine with two prongs.  One of these prongs would qualify as a crime of domestic violence - rendering Peralta Sauceda ineligible for cancellation of removal for non-lawful permanent residents - while the other would not.  However, the records available did not specify under which prong he had been convicted, and he was unable to obtain any additional records from the criminal court.  As such, the First Circuit found that he had not met his burden to prove his eligibility for cancellation of removal for non-lawful permanent residents.

The full text of Peralta Sauceda v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-2042P-01A.pdf

Ninth Circuit Finds 18 U.S.C. 16(b) Unconstitutionally Vague

In by far the biggest "crimmigration" case of the year, the Ninth Circuit has invalidated the definition of a crime of violence under 18 U.S.C. 16(b), finding the phrase "substantial risk" to be unconstitutionally vague.  The court relied on the Supreme Court's decision this summer in Johnson v. United States which invalidated the similarly worded residual clause of the Armed Career Criminal Act (the residual clause refers to crimes that involve a "significant risk" that force will be employed) on vagueness grounds.

You can read my blog post on Johnson here: http://www.sabrinadamast.com/journal/2015/6/26/supreme-court-invalidates-the-acca-residual-clause-disavows-the-ordinary-case-test

The full text of Dimaya v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/10/19/11-71307.pdf

Ninth Circuit Defers to BIA's Interpretation of the Stop Time Rule

In a published decision, the Ninth Circuit deferred to the Board of Immigration Appeals' decision in Matter of Camarillo.  In so doing, it determined that service of a Notice to Appear, even if the Notice to Appear is missing the time and date of the first hearing, is sufficient to invoke the "stop-time" rule, and the non-citizen will cease to accrue continuous physical presence for the purpose of cancellation of removal.

The full text of Moscoso-Castellanos v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/10/13/12-72693.pdf

Seventh Circuit Denies Asylum Application Because Petitioner did not Submit Sufficient Corroborating Documentation

In a published decision, the Seventh Circuit affirmed the denial of asylum to an applicant who provided credible testimony, but who failed to provide sufficient corroborating documentation of the harm he suffered in Mongolia and the reasons he did not apply for asylum in several other countries that he traveled to.  This decision reinforces that the REAL ID Act permits, but does not require, an Immigration Judge to grant an asylum application when the applicant provides credible testimony, but does not provide reasonably available corroborating documentation.

The full text of Darinchuluun v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D10-08/C:14-2212:J:Ripple:aut:T:fnOp:N:1636163:S:0

Sixth Circuit Addresses 2014 BIA Precedent Decisions on Asylum

In an unpublished disposition, the Sixth Circuit addressed the impact on asylum law of the Board of Immigration Appeals' (Board) 2014 decisions in Matter of M-E-V-G- and Matter of W-G-R-.  The court held that these decisions did not substantially alter the legal definition of a particular social group, and thus, they did not warrant reopening of proceedings.  The court relied on the Board's statements that its case law never truly required a particular social group to be "ocularly visible," and downplayed the importance of the Board's recognition that its past cases were inconsistent on this issue.  

This is a surprising and disappointing decision.  The Board's 2014 decisions were intended to bring uniformity to the definition of a particular social group - by definition, they recognized a lack of uniformity in prior decisions.  They also recognized that the same group may be socially distinct and particularized in one society, but not in another, and that the evidence in the record may support a finding of a cognizable particular social group in one case, but not support a finding of cognizability for the same group in a different case with a different evidentiary record.  The Sixth Circuit's conclusion that the petitioner could not have reasonably believed before these decisions that he was not eligible for asylum (because his proposed group had been consistently rejected in prior cases), but after these decisions, believed he could present evidence of the social distinction and particularity of his proposed group in his society is flawed.  It misses the point that under W-G-R- and M-E-V-G-, each proposed group must be evaluated based on the evidentiary record presented in that case.

The full text of Alvarez-Mejia v. Lynch can be found here: http://www.ca6.uscourts.gov/opinions.pdf/15a0686n-06.pdf

Ninth Circuit Finds that CA Conviction for Possession of Child Pornography is not an Aggravated Felony

The Ninth Circuit compared the federal child pornography possession statute (18 U.S.C. § 2252(a)(4)(B)) and the California child pornography possession statute (California Penal Code § 311.11(a)) and determined that the California statute encompassed broader conduct than the federal statute.  Specifically, the federal definition of “sexually explicit conduct” includes only five types of conduct: (i) sexual intercourse, (ii) bestiality, (iii) masturbation, (iv) sadistic or masochistic abuse, and (v) lascivious exhibition of the genitals or pubic area.  The California statute includes all of these acts, but also includes include “any lewd or lascivious sexual act," which includes any touching on any part of a child's body.  This catch-all provision renders the California statute broader than the federal analogue, and thus, it is not a categorical match to the federal definition of possession of child pornography.  Moreover, because California juries are not required to unanimously agree on what sexual conduct appears in a particular image in order to convict a defendant of possession of child pornography, the statute is not divisible, and the modified categorical approach may not be used.

The full text of Chavez-Solis v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/10/06/11-73958.pdf

Fifth Circuit Interprets the Personal Use of Marijuana Deportability Exemption

Non-citizens are removable from the United States for most drug convictions, except those that constitute “a single offense involving possession for one’s own use of 30 grams or less of marijuana.”  The Board of Immigration Appeals (Board) has interpreted this “personal-use exception” to cover only offenses that, in addition to constituting “a single offense involving possession for one’s own use of 30 grams or less of marijuana,” are also the “least serious” drug offenses under the law of the state in which they were committed.  The Fifth Circuit found no textual basis for the additional "least serious offense" criteria, and thus, declined to defer to the Board's interpretation.

The full text of Flores Esquivel v. Lynch can be found here: http://www.ca5.uscourts.gov/opinions/pub/13/13-60326-CV0.pdf

Eighth Circuit Determines that Federal Food Stamp Fraud Conviction is an Aggravated Felony

In a published decision, the Eighth Circuit determined that a conviction under 18 USC 2024(b) (food stamp fraud) is inherently fraudulently because it requires making misrepresentations to the government about the purpose for which the food stamps are being used.  As such, if the conviction involves a loss to the victim of at least $10,000, it is categorically an aggravated felony.

The full text of Molwana v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/09/141320P.pdf