Seventh Circuit Grants Petition for Review for Convention Against Torture Protection

In a scathing opinion, the Seventh Circuit shot down the Board of Immigrations Appeals' decision denying Protection under the Convention Against Torture to an applicant who owed money to the Zetas cartel for drug transactions, who had previously been tortured by the Mexican police, and whose family had been tortured by the Zetas.  The Court emphasized that the Convention only requires substantial grounds to believe an applicant would be tortured, which cannot be literally construed as a great than 50% probability of torture.  Finally, the Court reminded the Board of Immigration Appeals that the entire government need not acquiesce in the torture (only a government official), nor do they have to do so in any "official capacity."

The full text of Rodriguez-Molinero v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-17/C:15-1860:J:Posner:aut:T:fnOp:N:1673810:S:0

Ninth Circuit Discusses Jurisdiction over a Citizenship Claim

An Immigration Judge found that Sunny Viloria derived citizenship through his parents and accordingly, terminated removal proceedings against him.  The Department of Homeland Security appealed, and the Board of Immigration Appeals (BIA) sustained the appeal and remanded the case to the Immigration Judge.  Viloria appealed to the Ninth Circuit, who determined that it had no jurisdiction to review the BIA's decision because Viloria was not the subject of a final order of removal.

The full text of Viloria v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/21/11-73725.pdf

Ninth Circuit Finds that North Koreans who Relocate to South Korea are not Eligible for Asylum in the United States

The Ninth Circuit determined that a North Korean who moved to South Korea, attended school, and accepted South Korean citizenship, was firmly resettled, and thus, ineligible for asylum.  Section 302 of the North Korean Human Rights Act of 2004, which prohibits a finding that a North Korean is automatically a dual citizen of South Korea, does not prevent an Immigration Judge from making a firm resettlement finding.

The full text of Jang v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/22/11-73587.pdf

Tenth Circuit Addresses Immigration Consequences of an Oklahoma Conviction for Receipt of Stolen Property

The Tenth Circuit determined that a conviction for receipt of stolen property in Oklahoma qualifies as a crime involving moral turpitude even though it does no require a permanent taking.  The fact that the defendant must know the property is stolen is sufficient to implicate morally turpitudinous conduct.  The court acknowledged that its decision was at odds with Ninth Circuit precedent.

The full text of Obregon v. Lynch can be found here: https://www.ca10.uscourts.gov/opinions/13/13-9601.pdf

Fourth Circuit Addresses North Carolina Convictions for Speeding to Elude Authorities

The Fourth Circuit concluded that North Carolina conviction for speeding to elude authorities does not qualify as violent felony under the Armed Career Criminal Act (ACCA) because it neither requires the use of force nor is it one of the enumerated crimes defined as violent felonies. 

The full text of United States v. Barlow can be found here: http://www.ca4.uscourts.gov/Opinions/Published/154114.P.pdf

Tenth Circuit Finds that a California Conviction for Robbery Qualifies as a Crime of Violence

The Tenth Circuit determined that some conduct under section 211 of the California Penal Code (robbery) matched the generic definition of extortion, while other conduct matched the generic definition of robbery.  Though the conduct criminalized under the robbery statute matched one generic definition of a crime of violence, as defined in the sentencing guidelines, the court still concluded that a conviction for robbery in California would qualify as a crime of violence under the sentencing guidelines.

The Tenth Circuit's decision potentially creates a split with the Ninth Circuit, which determined in United States v. Dixon that a robbery conviction would not qualify as a violent felony under the Armed Career Criminal Act (ACCA). The Ninth Circuit also acknowledged that some conduct under section 211 of the California Penal Code, and some would fall under the "use of force" definition included the in ACCA.  Notably, the ACCA definition of a violent felony does not include a generic robbery definition, nor did the Ninth Circuit discuss whether all conduct criminalized under section 211 of the California Penal Code would fall under either the generic extortion or the use of force definition of a violent felony.  Thus, the Tenth Circuit and Ninth Circuit case law may, in the end, be reconcilable.  However, this is an area to keep an eye on further developments.

The full text of the Tenth Circuit's decision in United States v. Castillo can be found here: https://www.ca10.uscourts.gov/opinions/14/14-4129.pdf

My blog post on the Ninth Circuit's decision in United States v. Dixon can be found here: http://www.sabrinadamast.com/journal/2015/11/22/ninth-circuit-holds-that-california-robbery-is-not-a-violent-felony-under-the-acca

Ninth Circuit Defines Standards for Citizenship Trial in District Court

In an en banc decision, the Ninth Circuit confirmed that once a District Court finds that a litigant has adduced substantial credible evidence that he is a U.S. citizen, the burden shifts to the Government do demonstrate by clear and convincing evidence that the litigant is not a citizen.  On appeal, an appellate court will review the District Court's factual findings regard a litigant's citizenship for clear error.  In light of the contradictory evidence and credibility issues identified by the District Court, the Ninth Circuit deferred to its finding that Salvador Mondaca-Vega is not a citizen of the United States.

The full text of Mondaca-Vega v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/15/03-71369.pdf

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