Eighth Circuit Denies Petition for Review of a Reinstatement Order

In this matter, the petitioner presented a photocopy of a Forma Migratoria Estadistica - a document issued by the Mexican government to Mexican citizens when they arrive or depart from Mexico at a port of entry - to the Department of Homeland Security (DHS), in order to demonstrate that he timely complied with an Immigration Judge's voluntary departure order, and thus, was not subject to an order of removal.  The DHS declined to reopen the reinstatement order.  The Eighth Circuit affirmed, finding that the petitioner had several earlier opportunities to contest the finding that he was subject to an order of removal, but did not do so, making his claims about timely departure suspect.

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

http://media.ca8.uscourts.gov/opndir/16/07/142842P.pdf

Fifth Circuit Denies Applicant's Claim to Citizenship

The Fifth Circuit has determined that the Child Citizenship Act does not convey derivative citizenship on the child of a citizen who was interview for his permanent residence before his 18th birthday, but whose application for residence was not approved until after his birthday.  The Court declined to estop the Government from denying the applicant's citizenship claim even though there was a four-year delay in approving his application.

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

http://www.ca5.uscourts.gov/opinions/pub/14/14-60693-CV0.pdf

Dilley Blog - Day 5

In this video, I share  few final reflections on my time in Dilley as a volunteer attorney working with refugee mothers and children:

https://www.facebook.com/LawOfficeOfSabrinaDamast/videos/vb.760316417358152/1096819100374547/?type=2&theater&notif_t=like&notif_id=1468591323385176

Dilley Blog - Day 4

I am learning new and unexpected skills during my time in Dilley.  For example, today I drafted my first civil rights complaint, to be filed with the Department of Homeland Security.  Tomorrow I will begin outlining requests for re-interviews for women who were found to not have a credible fear of persecution during their initial interviews with the Asylum Office, but who were later identified by lawyers as having viable asylum claims.  The goal is for experienced asylum attorneys to outline the legal and factual arguments ("mentor outlines") supporting the asylum claim, and for newer attorneys and law students to turn those outlines into formal requests for re-interviews.  I'll be drafting the first mentor outlines tomorrow, which will hopefully serve as a template for the remote teams working on these requests.  As my time in Dilley draws to a close, I am sad to realize that family detention exists, and is likely to continue existing into the foreseeable future. But I'm also hopeful that the members of the CARA Pro Bono Project and the volunteers who come to Dilley each week will fight back against this injustice, and will assist these women and children - who have already suffered horrendous and unspeakable violence - to apply for the protection that they so desperately need.

Ninth Circuit Addresses Whistleblowing as a Political Opinion

The Ninth Circuit adopted the Board of Immigration Appeals' framework for evaluating asylum claims based on whistleblowing.  The court must evaluate  (1) whether and to what extent the alien engaged in activities that could be perceived as expressions of anticorruption beliefs; (2) any direct or circumstantial evidence that the alleged persecutor was motivated by the alien’s perceived or actual anticorruption beliefs; and (3) evidence regarding the pervasiveness of government corruption, as well as whether there are direct ties between the corrupt elements and higher level officials.  However, the court determined that the applicant failed to present evidence that his purported persecutors were motivated by his anticorruption beliefs, or that the corruption was even connected to government actors.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/13/13-71778.pdf

Eleventh Circuit Declines to Exercise Jurisdiction over Denied Sua Sponte Motion to Reopen

Splitting from several other circuits who have addressed the issue, the Eleventh Circuit has determined that it lacks jurisdiction to review any sua sponte motion denied by the Board of Immigration Appeals (Board).  Even if the Board's decision is based on an error of law, the federal court does not have jurisdiction to review.

The full text of Butka v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201511954.pdf

Tenth Circuit Addresses "Admission in any Status" for Cancellation of Removal

In an unpublished decision, the Tenth Circuit assumed that a procedurally regular admission, as described in Matter of Quilantan, would qualify as an admission in any status for the purposes of cancellation of removal for lawful permanent residents.  The court, however, found insufficient evidence that the applicant had been admitted at the port of entry in such a manner.

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

https://www.ca10.uscourts.gov/opinions/15/15-9577.pdf

Second Circuit Construes Pennsylvania Conviction for Possession of Counterfeited Substance

The Second Circuit has determined that a 1997 Pennsylvania conviction for possession of a counterfeit controlled substance is categorically a controlled substance offense.  The court noted that both the definition of a counterfeit controlled substance in the Pennsylvania statute substantially matched the definition in the Controlled Substances Act (CSA).  The court also noted that in 1997, the Pennsylvania controlled substances schedule was identical to the schedules in the CSA.

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

http://www.ca2.uscourts.gov/decisions/isysquery/aad98635-d3b8-459c-9e35-98d432ad4c06/5/doc/15-582_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/aad98635-d3b8-459c-9e35-98d432ad4c06/5/hilite/

Third Circuit Affirms Denial of Naturalization

The Third Circuit has affirmed the denial of naturalization for an applicant who committed fraud to obtain his permanent residence.  The court found that he was never lawfully admitted to permanent residence.  In addition, although the 5 year statute of limitations on rescission proceedings protected him from deported for the fraud or from losing his residence, it did not retroactively cure that the residence was not lawfully granted.

The full text of Koszelnik v. Attorney General can be found here:

http://www2.ca3.uscourts.gov/opinarch/144816p.pdf

Dilley Blog - Day 3

The prevalence of gender-based violence in Central America is beyond shocking.  What is even more shocking is the acceptability of this violence.  The number of women we interview who believe that domestic violence and sexual assault is normal is staggering.  Many do not even think to tell the asylum officers conducting their credible fear interviews about this widespread violence, committed with impunity.  I only hope that the work we do will help some of these women to find a better, safer life.

Ninth Circuit Finds Reason to Believe Ex-Soccer Player Committed Serious Nonpolitical Crime

The Ninth Circuit has determined that there is sufficient reason to believe that a former professional soccer player committed a serious nonpolitical crime.  Specifically, the court found that an indictment alleging that the individual participated in the planning of three murders was sufficient evidence to find him ineligible for asylum and withholding of removal under the serious nonpolitical crime bar.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/07/14-70276.pdf

Dilley Blog Day 2

Today was my second day volunteering in the detention center.  I accompanied a client to her re-interview with the asylum office.  The asylum office had originally found that she did not have a credible fear of persecution or torture, and an Immigration Judge affirmed that finding.  After her interview, she learned of new threats to her safety in her home country from her family.  As a result, the asylum office agreed to interview her again, and to consider this new information.  It was an emotional experience.  My client was traumatized by her experiences, and her young child cried when she left him to attend the interview.  It's heartbreaking to watch the children in the detention center suffer, but it was reassuring to observe the professional and compassionate manner in which our asylum officer conducted the interview.  Though I firmly believe that a detention center is not an appropriate place for children and that the concept of family detention is inherently unjust, I have hope that the hard work of volunteers and the compassion of some government officials can still bring about a just result for these women and their children.

Seventh Circuit Addresses Termination of Conditional Residence for a Widow of a US Citizen

The Seventh Circuit has determined that the death of a U.S. citizen during the two years of their non-citizen spouse's conditional residence automatically waives the requirement that the couple jointly file a petition to remove the conditions on the residence.  Because the waiver is automatic, there is no need to file an I-751 waiver request.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D07-07/C:14-2430:J:Williams:aut:T:fnOp:N:1788032:S:0

Sixth Circuit Finds 16(b) Definition of a Crime of Violence Unconstitutionally Vague

The Sixth Circuit, applying the Supreme Court's 2015 decision in Johnson v. United States, has determined that 18 USC 16(b) - which contains half of the definition of a crime of violence for immigration purposes - is unconstitutionally vague. 

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

http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0155p-06.pdf

Fifth Circuit Determines that Texas Assault Statute is Indivisible

The Fifth Circuit has determined that the mens rea alternatives listed in the Texas assault statute are alternative means, not alternative elements.  Thus, with respect to whether a misdemeanor assault conviction is a crime involving moral turpitude, the statute is overbroad and indivisible.  The court recognized that this finding was mandated by the Supreme Court's recent decision in Mathis v. United States. 

The full text of Gomez-Perez v. Lynch:

http://www.ca5.uscourts.gov/opinions/pub/14/14-60808-CV0.pdf

Fourth Circuit Finds that a Virginia Conviction for Forgery of a Public Record is an Aggravated Felony

The Fourth Circuit has determined that a Virginia conviction for forgery of a public record is categorically an offense related to forgery, and thus, an aggravated felony if accompanied by a sentence of one year or more of imprisonment.

The full text of Santos Alvarez v. Lynch can be found here:

http://www.ca4.uscourts.gov/Opinions/Published/151599.P.pdf

Third Circuit Denies Naturalization for Individual who Committed Fraud

The Third Circuit determined that a Syrian national who claimed to be Lebanese to obtain Temporary Protected Status, and who subsequently obtained his lawful permanent residence without disclosing the fraud or seeking a waiver, was never lawfully admitted to permanent residence.  As such, his application for naturalization was properly denied.

The full text of Saliba v. Attorney General can be found here:

http://www2.ca3.uscourts.gov/opinarch/153769p.pdf

Ninth Circuit Addresses Jurisdiction to Review Denials of Sua Sponte Motions to Reopen

The Ninth Circuit has determined that it has jurisdiction to review the denial of a sua sponte motion to reopen by the agency to determine if the denial rested on legal or constitutional error.  In the instant case, the Board of Immigration Appeals denied the motion to reopen based on the erroneous conclusion that the non-citizen would not be eligible for 212(c) waiver even if his proceedings were reopened.  Because he would be eligible for such a waiver, the Ninth Circuit sustained the appeal, and remanded for the Board of Immigration Appeals to determine if sua sponte discretion should be exercised based on the proper legal framework.

The full decision in Bonilla v. Lynch can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/12/12-73853.pdf

Dilley Blog Day 1 - Advocating for Vulnerable Mothers and Children

I am spending one week volunteering with mothers and children who are being held in an immigration detention center while they seek asylum.  Today was my first day on the ground in Dilley, Texas.  I met with several mothers who are at different stages of their proceedings.  I found myself remarkably frustrated at how poorly gender-based asylum claims have progressed.  While the law recognizes domestic violence claims, threats of sexual assault from non-relatives, absent other factors, are often insufficient to make out an asylum claim.  Women seeking such horrifying harm should qualify for protection under our asylum laws.  

First Circuit Construes Derivative Citizenship Statute

The First Circuit has determined that a child whose surviving parent naturalized before his 18th birthday does not derive citizenship if he does not live in the United States as a lawful permanent resident prior to his 18th birthday.  The court construed former section 321(a) of the INA.

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

http://media.ca1.uscourts.gov/pdf.opinions/15-1805P-01A.pdf