Sixth Circuit Finds Tennessee Convictions for Aggravated Burglary, Burglary, and Robbery to be Violent Felonies

In a published decision, the Sixth Circuit confirmed that a conviction for aggravated burglary in Tennessee matches the generic definition of a burglary offense, and thus, qualifies as a violent felony under the Armed Career Criminal Act (ACCA).  For immigration purposes, a conviction for this crime will very likely qualify as a burglary aggravated felony in the immigration context if accompanied by a sentence of at least one year.  

With respect to Tennessee's burglary statute, the court determined that the statute is divisible with respect to whether it matches the generic definition of a burglary because one of the subsections of the statute criminalizes burglary of non-buildings, such as vehicles and motor boats.  This subsection does not match the generic definition of a burglary offense.  Because the petitioner was convicted under one of the subsections involving a building, his conviction matched the generic definition of a burglary offense, and qualified as a violent felony under the ACCA.  Again, a conviction under this statute will likely be considered overbroad but divisible when analyzing whether it qualifies a burglary aggravated felony in the immigration context.

Finally, with respect to a conviction for robbery in Tennessee, the court confirmed that the statute qualified as a violent felony under the "use of force" prong in the ACCA.  This prong is nearly identical to the definition of a crime of violent found in 18 USC 16(a), and thus, a conviction for robbery in Tennessee, if accompanied by a sentence of at least one year, will likely be considered a crime of violence aggravated felony for immigration purposes.

The full text of United States v. Priddy can be found here: http://www.ca6.uscourts.gov/opinions.pdf/15a0292p-06.pdf

First Circuit Remands a Case to Apply Old Deportation Laws

The First Circuit remanded a case for the application of pre-1997 standards.  The Board of Immigration Appeals determined that an applicant in deportation proceedings had been convicted of a particularly serious crime.  Noting that the court had not yet determined whether pre-1997 law on particularly serious crimes would include non-aggravated felonies, the Court remanded the case for the agency to address this issue in the first instance.

The full text of Velerio-Ramirez v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-2318P-01A.pdf

Eighth Circuit Finds that South Carolina Conviction for Pointing Firearm at Another is an Aggravated Felony

The Eighth Circuit has determined that a conviction under South Carolina Code § 16-23-410 (pointing a firearm at another) requires the “threatened use of physical force against the person or property of another," and thus, qualifies as a crime of violence under 18 USC § 16(a).  The court recognized that the Ninth Circuit has recently determined that 18 USC § 16(b) is unconstitutionally vague, but declined to address the issue in the instant case.

The full text of Reyes-Soto v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/12/143797P.pdf

Board of Immigration Appeals Construes "Term of Imprisonment" to Include Time Spent in a Rehab Facility

The Board of Immigration Appeals (Board) has determined that the one year term of imprisonment required to classify a conviction as a crime of violence includes a period of confinement in a drug rehabilitation facility.  the Board noted that section 101(a)(43)(B) of the Immigration and Nationality Act defines a term of imprisonment as a “period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.”  Thus, if an applicant is ordered to serve a period of confinement in a drug rehabilitation facility, this qualifies as a term of confinement imposed by a court of law, and thus, qualifies as a term of imprisonment as well.

The full text of Matter of Calvillo Garcia can be found here: http://www.justice.gov/sites/default/files/pages/attachments/2015/12/09/3855.pdf

First Circuit Determines that Third Degree Assault in Connecticut is not a Crime of Violence

In a precedent decision, the First Circuit has determined that a conviction for third degree assault in Connecticut is not a crime of violence.  The elements of the state statute are: (i) the intent to cause physical injury to another person and (ii) causing such injury to such person or to a third person.  A crime of violence requires the infliction of actual, violent force upon a person.  The court reasoned that the statute, by its very terms, does not require violent force, and concluded that the requirement that the victim be injured does not necessarily lead to the conclusion that the defendant must have employed violent force.  The court was also unperturbed by the petitioner's inability to locate a state court case in which the defendant was prosecuted under the statute for non-violent conduct, recognizing that not all assault cases have resulted in the generation of publicly available records for the court to review.

The full text of Whyte v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-2357P-01A.pdf

Ninth Circuit Finds that a Family is the "Quintessential Particular Social Group"

The Ninth Circuit has determined that even in light of the Board of Immigration Appeals' decisions in Matter of M-E-V-G-  and Matter of W-G-R-, a family still remains a quintessential particular social group in asylum law.  The court acknowledged that persecutors are more likely to identify individual family members as part of a particular social group when familial ties are “linked to race, religion, or political affiliation," but to declined to hold that the family unit must be intertwined with another protected ground to be cognizable as a particular social group for asylum purposes. 

The full text of Flores-Rios v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/01/12-72551.pdf

Board of Immigration Appeals Construes Physical Presence Requirements for NACARA

The Board of Immigration Appeals had determined that when an applicant for NACARA commits more than one act that renders them removable, the continuous physical presence requirement must be applied to the last removable act.  Thus, when an applicant enters the United States without inspection and subsequently commits a crime that renders him removable, he must establish the requisite physical presence beginning on the date that the criminal act rendered him removable.  In the instant case, the applicant committed a removable crime in 2012 which subjected him to the heightened standard for NACARA.  Because ten years had not elapsed since the offense, he could not establish the requisite physical presence. 

The full text of Matter of Castro-Lopez can be found here: http://www.justice.gov/sites/default/files/pages/attachments/2015/12/02/3854.pdf

Fourth Circuit Construes "Crime of Domestic Violence" Deportability Ground

The Fourth Circuit has adopted a "circumstance specific" approach to analyzing the crime of domestic violence deportability ground as opposed to the traditional "categorical approach" that is typically employed to evaluate the immigration consequences of a criminal conviction.  This means that the statute of conviction need contain a domestic relationship for a conviction to sustain a charge of deportability.  If evidence (i.e. documents from the criminal court) establish that the defendant and the victim had such a relationship, that will be sufficient to render the defendant deportable.  Thus, non-citizens in the Fourth Circuit must now be considered that convictions for generic assault crimes, which contain no requirement of a domestic relationship to the victim, may still make them deportable or ineligible for certain forms of immigration relief, if the victim, was in fact, someone with whom they shared a domestic relationship.

The full text of Hernandez-Zavala v. Lynch can be found here: http://www.ca4.uscourts.gov/Opinions/Published/141878.P.pdf

First Circuit Addresses an Arrest During a Workplace Raid

Maria Garcia-Aguilar was arrested during a raid by Immigration and Customs Enforcement (ICE) on her workplace.  She was handcuffed before she was asked any questions, and it was only after being transported to a military base that she was questioned by ICE officers about her identity and nationality.  In the meantime, the Mexican consulate was alerted that Garcia-Aguilar had not returned home from work to pick up her young child, and consular officials faxed a request to ICE to release her.  Along with the request, the consulate faxed Garcia-Aguilar's birth certificate.   

In court, Garcia-Aguilar argued that her arrest, detention, and interrogation violated her constitutional rights (insomuch as she was arrested before ICE had any reason to believe she was in the country unlawfully), and asked that all evidence of her foreign birth, such as statements she made during the interrogation, be suppressed.  She also asked that the birth certificate be suppressed, on the ground that but-for her unlawful arrest, the consulate would never have provided the birth certificate to ICE.  The Immigration Judge denied her motion to suppress and the Board of Immigration Appeals affirmed.

The First Circuit agreed, finding that the connection between the raid and the voluntary submission of the birth certificate by the consulate was too attenuated.  Even assuming the workplace raid was an egregious violation of the Constitution, the birth certificate was not tainted by the unlawfulness of the raid and could serve as evidence of Garcia-Aguilar's foreign birth.

The full text of Garcia-Aguilar v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-1185P-01A.pdf

Third Circuit Remands Convention Against Torture Application Based on fear of Gangs

In an unpublished decision, the Third Circuit remanded an application for protection under the Convention Against Torture, based on fear that Mexican gangs would target a returning deportee with family members in the United States.  The applicant presented evidence from an expert witness that the Mexican government is unable to control gangs.  The Board of Immigration Appeals concluded that the Mexican government was making attempts to weed out corrupt officials and train its military and law enforcement not to engage in acts of torture, and thus, that it would not acquiesce in the torture of the applicant.  

On appeal, the Third Circuit concluded that the Board had not considered "the possibility that, even though the Mexican government attempted to protect its citizens, it could still acquiesce to torture due to its inability to actually protect its citizens from torture. There is no indication that the agency considered evidence, such as Dr. Boerman’s report, indicating that the Mexican government could not control Los Zetas or the corrupt officials who are involved in kidnappings and torture. Rather, the agency seemed to assume that as long as the Mexican government tried to help its citizens, then it could not be found to have acquiesced."  An excellent reminder that the desire to protect is not the same thing as the ability to do so.

The full text of Torres-Escalantes v. Attorney General can be found here: http://www2.ca3.uscourts.gov/opinarch/144663np.pdf 

Fourth Circuit Issues a Decision on Asylum Eligibility for a Former Gang Member

Vladimir Ernesto Ortega Oliva joined the MS-13 gang, but after witnessing the extreme violence of gang life, decided to become more involved with his church and become an "inactive" gang member.  MS-13 would allow members who became active in the church to become inactive, but still required them to pay "la renta" to support the gang's activities.  Oliva paid this extortion fee for 7 or 8 years, but eventually stopped paying.  MS-13 members beat him severely and threatened to kill him if he didn't begin paying again.

Oliva applied for asylum, arguing that his life would be threatened because of his membership in one of two particular social groups: (1) “Salvadorans who are former members of MS-13 and who left the gang, without its permission, for moral and religious reasons,” and (2) “Salvadorans who were recruited to be members of MS-13 as children and who left the gang as minors, without its permission, for moral and religious reasons.”  The Board of Immigration Appeals determined that "Oliva’s fear of persecution was not on account of his becoming an inactive gang member, but because of 'his specific conduct of violating the [gang’s] rules'—namely refusing to pay rent." 

On appeal, the Fourth Circuit held that "[t]his was an overly restrictive view of Oliva’s case. A close examination of the record illuminates the inextricable relationship between Oliva’s membership in his proposed social groups and his refusal to pay rent."  The court also determined that extortion can qualify as persecution, even if the victim will only be physically harmed if he stops paying the extortion fee.

The full text of Oliva v. Lynch can be found here: http://www.ca4.uscourts.gov/Opinions/Published/141780.P.pdf

LGBT African Client Approved for Asylum

Violence and persecution in one's home country can be one of the most terrifying experiences that a person can endure.  Asylum cases are almost always compelling, which is why it is such a joy for me when my clients are approved for asylum.  In a recent case, an African client was harmed on account of her sexual orientation.  She had to flee to the United States, leaving behind many family members.  I'm happy to say that today, she is an asylee, and we have begun the process of immigrating her family members to join her! 

Attorney advertising and stories of past success do not guarantee future results.

Board of Immigration Appeals Addresses Lay Testimony and Abusive Immigration Judges

The Board of Immigration Appeals (Board) has determined that a non-citizen may give lay testimony about the psychological impact of his past experiences.  The non-citizen does not need to be qualified as an expert witness to give this testimony.  The Board also determined that when conduct by an Immigration Judge can be perceived as bullying or hostile, remand to a different Immigration Judge may be proper.

The full text of Matter of Y-S-L-C- can be found here: http://www.justice.gov/sites/default/files/pages/attachments/2015/11/23/3853.pdf

Military Spouse Receives Permanent Residency through US Consulate in Montreal

It is always a pleasure for me to work with members of our military.  In a recent case, I was able to expedite the immigration process for the Canadian spouse of an active duty Marine.  Today, his wife is residing with him as a lawful permanent resident, giving them valuable months together before he is deployed abroad later this year.

A success story that I'm happy to share!

Attorney advertising and stories of past success do not guarantee future results.

Eleventh Circuit Holds that Georgia Obstruction Conviction is a Violent Felony under ACCA

In a published decision the Eleventh Circuit determined that a felony conviction in Georgia for obstruction qualified as a violent felony under the Armed Career Criminal Act (ACCA).  Georgia’s felony obstruction statute applies only to those who obstruct a law enforcement officer “by offering or doing violence” to the officer’s person.  This includes the attempted use of physical force by “pushing, struggling, kicking and flailing arms and legs."  Thus, it has as an element the use, attempted use, or threatened use of physical force against the person of another.  Given the similar language in the ACCA's violent felony definition and a crime of violence under 18 USC 16(a), this conviction likely qualifies as a crime of violence for immigration purposes, too.

The full text of US v. Brown can be found here: http://media.ca11.uscourts.gov/opinions/pub/files/201411502.pdf

Ninth Circuit Holds that California Robbery is not a Violent Felony under the ACCA

The Ninth Circuit held that a conviction for California robbery is not a violent felony under the ACCA.  A violent felony includes a crime matching the generic federal definition of extortion as well as any crime which has as an element the use, attempted use, or threatened use of physical force against a person. 

First, the Court noted that some violations of the robbery statute would involve such significant levels of force as to negate any argument that the property was obtained from the owner with the owner's consent, as would be required under the generic definition of extortion.

Second, the Court noted that the accidental application of force was sufficient to sustain a robbery conviction in California, while the violent felony definition requires the intentional use of force.  

Finally, the Court deemed the robbery statute to be indivisible, and therefore, not subject to a modified categorical analysis.

Given the nearly identical language of the "use of force" definition of a violent felony under the ACCA and the definition of a crime of violence under 18 USC 16(a) (used to define crime of violence aggravated felonies for immigration purposes), there is not an excellent argument to be made that robbery is not a crime of violence for immigration purposes.

In addition, the decision quotes the decision in US v. Becerril-Lopez, which (as noted in the instant decision) determined that certain conduct under California's robbery statute would match the generic definition of extortion.  The generic definition of extortion requires obtaining the property with the owner's consent.  A theft aggravated felony requires obtaining property without the owner's consent.  Potentially (with some additional research and flushing out of the case law cited), California robbery no longer qualifies as a theft aggravated felony either.

The full text of US v. Dixon can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/11/20/14-10318.pdf

Ninth Circuit Finds that New Jersey Aggravated Assault is not a Crime of Violence

The Ninth Circuit determined that a mens rea of extreme indifference recklessness is insufficient to sustain a finding of an aggravated assault crime of violence.  As such, a conviction for aggravated assault in New Jersey encompasses conduct not covered by the generic definition of a crime of violence, and the conviction does not qualify as a crime of violence for federal sentencing purposes (and very possibly, for immigration purposes as well, since the Ninth Circuit's definition of a crime of violence under 18 U.S.C. 16(a) excludes reckless or negligent acts).  The court also noted that the New Jersey definition of "attempt" is broader than the federal definition.

The full text of United States v. Garcia Jimenez can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/11/19/14-10484.pdf

Ninth Circuit Denies Asylum Related Relief for Gay Male from Mexico

Carlos Bringas Rodriguez was repeatedly sexually abused by his relatives and neighbor as a child.  His uncle clearly told Bringas Rodriguez that he was abusing him because he was gay.  Bringas Rodriguez never reported the abuse to the police.  He testified before the Immigration Judge that several of his gay friends had reported abuse to the Mexican police and that the police had failed to do anything.  Nevertheless, the Immigration Judge found that Bringas Rodriguez had not established that the Mexican police were unable or unwilling to protect him from harm.   The Board of Immigration Appeals and the Ninth Circuit agreed.  The Ninth Circuit also noted that its decision in Castro-Martinez v. Holder foreclosed the argument that there is a pattern or practice of persecution against homosexuals in Mexico.  

The Ninth Circuit also affirmed the denial of Bringas Rodriguez's request for protection under the Convention Against Torture, finding that the past harm he experienced did not compel a finding of a likelihood of future torture and suggesting that he could internally relocate to Mexico City, an area more tolerant of homosexuals.

Finally, the Court affirmed the denial of Bringas Rodriguez's motion for remand based on his HIV diagnosis, finding that he did not provide evidence s regarding how his status as an HIV positive homosexual changes the outcome of his case, and noting that the lack of access to HIV drugs is a problem suffered not only by homosexuals but by the Mexican population as a whole. 

Judge Fletcher wrote a compelling dissent, casting doubt on the rationale of Castro- Martinez and finding that even under the standards of that case, Bringas Rodriguez had demonstrated asylum eligibility.

The full text of Bringas Rodriguez v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/11/19/13-72682.pdf

Tenth Circuit Addresses Violation of a Utah Domestic Violence Protective Order

In a published decision, the Tenth Circuit determined that a violation of a no contact order issued under the Utah's Cohabitant Abuse Procedures Act rendered a petitioner removable under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act (violation of a domestic violence protective order).  In so doing, the court deferred to the Board of Immigration Appeals' decision in Matter of Strydom, and reiterated that even an attempt to contact the protected party, if such contact is forbidden by the protective order, is sufficient to render a petitioner removable.

The full text of Cespedes v. Lynch can be found here: https://www.ca10.uscourts.gov/opinions/14/14-9604.pdf

Third Circuit Remands Withholding of Removal and Protection under the Convention Against Torture Applications Premised on Fear of Gangs

In an unpublished decision, the Third Circuit remanded a case to the Board of Immigration Appeals (Board) for further evaluation of whether "Guatemalans who are perceived to be wealthy as a result of previously living in the United States" qualified as a cognizable social group for withholding of removal.  The court criticized the Board for relying  on past decisions for the blanket proposition that cases involving perceived wealth, gangs, and crime do not implicate a cognizable social group, without evaluating whether the evidentiary record demonstrated that the proposed group in the instant case was immutable, socially distinct, and particularized.  "The cognizability of a proposed social group must be addressed on a case-by-case basis."

With respect to the request for protection under the Convention Against Torture, the Board issued its decision in a single sentence, stating that the petitioner did not "show that he is more likely than not to be tortured in Guatemala with the consent or acquiescence (including willful blindness) of a government official.”  The Third Circuit remanded, stating that the Board's "conclusory, one-sentence denial of Sazo-Godinez’s claim for CAT relief is insufficient for us to conduct a meaningful review."

The full text of Sazo-Godinez v. Lynch can be found here: http://www2.ca3.uscourts.gov/opinarch/144832np.pdf