Eighth Circuit Addresses the Reliability of Government-Created Documents

Francisco Rodriguez-Quiroz applied for adjustment of status.  He asserted that he had entered the United States using a border crossing card in 2004 and had never left.  A government-produced document, called a TECS-II printout, confirmed this entry, but showed a subsequent departure in 2005, with no admission thereafter.  Another government-document, a Form I-213, alleged that Rodriguez-Quiroz had admitted to an immigration official that he entered the United States in 2005 without inspection.  Rodriguez-Quiroz disputed the accuracy of both of these documents, asking that the Government provide information on how the TECS-II database compiled information on departures, and that the Government produce the officers who created the Form I-213 for cross-examination.  He also presented copious documentary evidence placing him in the United States on the days just before and just after the alleged date of departure in 2005.  The Government did not present the requested evidence on the TECS-II database or the officers who drafted the Form I-213, and the Immigration Judge determined that Rodriguez-Quiroz had not met his burden to prove the time and manner of his last entry into the United States.  The Board of Immigration Appeals affirmed.

The Eighth Circuit reversed.  "While the record supports the assertion that a public official printed the TECSII document from a government computer system,5 it does not necessarily support an assertion that the departure information derived from a public official or from government records. As set forth above, DHS provided no foundation for the TECSII document, despite the IJ’s request for an explanation of how the departure information came to be recorded in the TECS system and the IJ’s comment that she would not be able to assess the reliability of the departure information without such an explanation. Moreover, Rodriguez had asserted that the information may have originated from the air carrier and not from any public official. Rodriguez’s concern seems to be well founded in light of entries in the Federal Register indicating that air carriers report itinerary information of certain passengers to Customs and Border Protection (CBP), which then maintains that information in the TECS system."  "Because the departure information set forth in the TECS-II document may not have been “produced by public officials during the ordinary course of their duties,” and because DHS refused to explain how that information came to be recorded in the TECS system, we question whether the January 21, 2005, departure information set forth in the TECS-II document is entitled to a presumption of reliability. "  The court then noted that even if the document was presumptively reliable, it could not imagine, in light of the documentary and testimonial evidence submitted by Rodriguez-Quiroz, what else he could have done to rebut that presumption.  The court remanded to allow Rodriguez-Quiroz to present evidence challenging the reliability of the Form I-213.

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

http://media.ca8.uscourts.gov/opndir/16/08/152621P.pdf

Sixth Circuit Remands Family-Based Particular Social Group Asylum

In an unpublished decision, the Sixth Circuit reversed the denial of a motion to remand filed by an applicant whose younger brother was killed after his asylum application was denied.  The applicant asserted that the murder supported his assertion that he has a well-founded fear of persecution on account of his membership in the particular social group comprised of his family.

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

http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0514n-06.pdf

Fifth Circuit Determines that a Person Subject to the "Permanent Bar" is not Eligible for a Nunc Pro Tunc Permission to Reapply for Admission after Removal

The Fifth Circuit has deferred to the Board of Immigration Appeals determination in Matter of Torres-Garcia and held that an applicant for adjustment of status who is subject to the so-called "permanent bar" in section 212(a)(9)(C) of the INA may not seek adjustment of status in conjunction with a nunc pro tunc Form I-212, Application to Reapply for Admission after Removal.  The court agreed that a person subject to the permanent bar must remain outside the United States for at least 10 years before filing an I-212.

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

http://www.ca5.uscourts.gov/opinions/pub/15/15-60206-CV0.pdf

Ninth Circuit Opines on the Definition of a Conviction

The Ninth Circuit has held that an expunged California conviction remains a conviction for immigration purposes.  It further held that a grant of probation is a sufficient restraint on liberty to qualify as a conviction as defined in the Immigration and Nationality Act.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/25/14-73510.pdf

Eighth Circuit Addresses Fraud-Related Aggravated Felonies

The Eighth Circuit has determined that it is proper to consider the loss to the victim in the aggregate when determining if a petitioner who has been convicted of multiple counts related to the same fraudulent scheme has been convicted of an aggravated felony.  The court distinguished the case from those involving dismissed counts (the loss tied to these counts cannot be considered when determining if the loss to the victim was in excess of $10,000 for aggravated felony purposes).  It also left open the question as to whether the agency could aggregate the loss to the victim stemming from multiple counts that were not related to the same fraudulent scheme.

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

http://media.ca8.uscourts.gov/opndir/16/08/153230P.pdf

Seventh Circuit Addresses Violent or Dangerous Determination

The Seventh Circuit has upheld the regulation applying a heightened discretionary standard to waivers under section 212(h) of the INA for applicants who have been convicted of a dangerous or violent crime.  The court also noted that the agency may employ a categorical approach or a fact-based approach to determining whether a particular crime is violent or dangerous.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D08-25/C:15-3238:J:Wood:aut:T:fnOp:N:1816819:S:0

Sixth Circuit Finds that Soliciting Prostitution is a Crime Involving Moral Turpitude

Agreeing with decisions by the Ninth, Tenth, and Eighth Circuits, the Sixth Circuit has determined that an Ohio conviction for soliciting prostitution is a crime involving moral turpitude.

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

http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0210p-06.pdf

Fifth Circuit Construes Jurisdiction

The Fifth Circuit has determined that when the Board of Immigration Appeals remands a case solely for consideration of voluntary departure, there is a final order of removal for the purpose of judicial review.  Thus, the court had jurisdiction to review the Board of Immigration Appeals decision.

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

http://www.ca5.uscourts.gov/opinions/pub/16/16-60294-CV0.pdf

Tenth Circuit Again Addresses the Interaction of INA 212(a)(9)(C) and INA 245(i)

In 2005, the Tenth Circuit issued its decision in Padilla-Caldera v. Gonzales, finding that an applicant was eligible for adjustment of status under section 245(i) of the Immigration and Nationality Act (INA) even if he was inadmissible under section 212(a)(9)(C) of the INA.  In 2007, the Board of Immigration Appeals (BIA) disagreed in Matter of Briones, finding such an applicant ineligible for adjustment of status.  In 2011, the Tenth Circuit again considered the Padilla-Caldera matter, and in its second decision, it deferred to the BIA's determination in Briones.  In 2015, the Tenth Circuit limited its deference in De Niz Robles v. Lynch, finding that applications who applied after the first decision in Padilla-Caldera, but before Briones, could still seek adjustment of status under section 245(i), even if they were inadmissible under section 212(a)(9)(C), because they had a good faith reliance on the first decision in Padilla-Caldera.

Gutierrez-Brizuela, who was inadmissible under section 212(a)(9)(C) of the INA, applied for adjustment of status under section 245(i) of the INA after the decision in Briones, but before the second decision in Padilla-Caldera.  The Tenth Circuit found him to be similarly situated to De Niz Robles, indicating that applicants for adjustment of status had a good faith reliance on the first decision in Padilla-Caldera until it issued the second Padilla-Caldera decision in 2011.

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

https://www.ca10.uscourts.gov/opinions/14/14-9585.pdf

Ninth Circuit Addresses Conviction for Cockfighting

The Ninth Circuit has determined that a federal conviction for cockfighting is not necessarily a crime involving moral turpitude.  In light of its case law indicating that a non-fraud conviction should only qualify as a crime involving moral turpitude if the statute requires an intent to injure another person, actual infliction of injury on another person, or a protected class of victims, the court remanded to the Board of Immigration Appeals to further explain its finding that this conviction qualifies as a crime involving moral turpitude.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/23/13-71127.pdf

In an Unpublished Decision, the Third Circuit Addresses Burdens of Proof and Scolds the Government for Wasting the Court's Time

Cruz-Chang was convicted of a drug offense.  The government argued that the conviction was an aggravated felony, but the Immigration Judge disagreed, and granted Cruz-Chang cancellation of removal.  The government appealed, and while on appeal. requested remand based on a transcript from the criminal proceedings that it alleged showed Cruz-Chang was convicted of an aggravated felony.  The Board of Immigration Appeals (BIA) granted remand, and on remand, the court reversed, and denied cancellation on the basis of an aggravated felony conviction.  Cruz-Chang appealed, and the BIA affirmed.  Cruz-Chang appealed to the Third Circuit, who remanded at the Government's request, to determine what impact that the Supreme Court's decision in Descamps. On remand, the Government argued that Descamps had no impact on the case, and the BIA affirmed.  Cruz-Chang again appealed to the Third Circuit.

The court first determined that the statute of conviction - which criminalized distribution and dispensing a controlled substance - necessarily involved a trafficking element, because it was not clear if distribution and dispensing were alternative means or alternative elements of the offense.  Given this ambiguity, the Court concluded that the certainty required by the Supreme Court's recent conviction in Mathis was not present with respect to the issue of the aggravated felony.  As such, Cruz-Chang is eligible for cancellation of removal.  

The court also scolded the Government for what it perceived as its waste of judicial resources.  "In closing, we note our expectation that on remand and in future cases the Government will refrain from engaging in the problematic conduct that has marked its performance here. The last time this case was before us, the Justice Department requested and we granted a remand to the BIA for the limited purpose of the BIA considering what effect, if any, Descamps has on this immigration case.  Once back before the BIA, however, the Government asserted that Descamps was inapplicable and instead proceeded to argue that the plea transcript was relevant to whether Chang-Cruz should receive discretionary relief, along with an inadequate explanation for why it failed to obtain that plea transcript before the IJ rendered her initial decision cancelling Chang-Cruz’s removal.  These were issues well outside the scope of our remand.  Most troubling, however, is the Government’s resort before the BIA to a frivolous argument that Chang-Cruz engaged in 'obstructionism' by opposing the Government’s remand to the IJ to consider the plea transcript.  It comports with neither the professionalism nor the ethical mandates of Government counsel to chill vigorous advocacy by asserting that an alien who avails himself of the congressionally prescribed opportunity to seek cancellation of removal thereby loses the privilege of cancellation.  We trust that this was an unfortunate mistake that will not be repeated."

The full text of Cruz-Chang v. Attorney General can be found here: 

http://www2.ca3.uscourts.gov/opinarch/144570np.pdf

First Circuit Misconstrues Family-Based Particular Social Group

The First Circuit affirmed the agency's decision.  "[T]he record adequately supports the IJ's finding –– which the BIA accepted –– that the threats against Marín stemmed not from Marín's kinship ties per se, but rather from what Marín did and Cuellar's desire in response either to seek retaliation against Marín or to seek to stop Marín because Cuellar believes that Marín's family may come after him.  The mere fact that Cuellar exclusively targeted members of Marín's family does not, as Marín argues, mean that the only logical inference is that kinship ties, rather than the desire for retaliation or deterrence, prompted Cuellar's threats."

The decision betrays a fundamental misunderstanding of family-based particular social groups.  Cuellar's anger against Marin and his family was directly tied into their kinship ties to Marin's father, who Cuellar murdered.  Thus, but-for Marin's kinship ties to his father, he would not have been targeted.  It's important to remember that Marin was not required to show that his kinship ties were the sole motivation for Cuellar's persecution, only that it was one central reason for the persecution.

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

http://media.ca1.uscourts.gov/pdf.opinions/14-2138P-01A.pdf  

Ninth Circuit Addresses Proper Venue and Jurisdiction in a Reinstatement Case

In an interesting procedural case, the petitioner was ordered removed in the Ninth Circuit, but later had her order reinstated in the Eleventh Circuit after illegally re-entering the United States.  An Immigration Judge in the Eleventh Circuit denied her application for withholding of removal and protection under the Convention Against Torture based on the persecution she suffered as a transgender woman in Mexico.  The Board of Immigration Appeals (Board) affirmed, and the petitioner appealed the Board's decision to the Ninth Circuit.  Though the Ninth Circuit acknowledged that venue was proper in the Eleventh Circuit, it also held that improper venue did not strip its jurisdiction to hear the case.  It further determined that the interests of justice were not served by transferring the appeal to the Eleventh Circuit, as it had already been fully briefed at the Ninth Circuit and the petitioner may have suffered legitimate confusion when she filed her petition for review in the Ninth Circuit, given that her initial asylum claim was denied in the Ninth Circuit and her in absentia order was issued in the Ninth Circuit.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/19/12-71735.pdf

Fifth Circuit Addresses Whether Adjustment of Status Applicants are Applicants for Admission

In a somewhat convoluted case, the Fifth Circuit addressed whether an individual who had adjusted status in the United States after being admitted to the United States as a nonimmigrant could be charged with deportability as a non-citizen inadmissible at the time of adjustment of status because he was not in possession of a valid entry document as defined in section 212(a)(7)(A) of the INA.  The court noted that section 212(a)(7)(A) of the INA only applies to applicants for admission, and concluded that a person already admitted to the United States on a nonimmigrant visa, who subsequently applies for adjustment of status, cannot be deemed an applicant for admission, as contemplated in section 212(a)(7)(A) of the INA.  Thus, the petitioner, who adjusted status based on a fraudulent marriage, was not removable as charged, though the court clearly noted that there were likely other charges of removability that could be lodged against him.

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

http://www.ca5.uscourts.gov/opinions/pub/14/14-60065-CV0.pdf

Ninth Circuit Remands for Board of Immigration Appeals to Consider Eligibility for Provisional Waiver

In two unpublished cases, the Ninth Circuit faulted the Board of Immigration Appeals (BIA) for denying two motions to reopen to seek provisional waivers where the BIA denied solely on timeliness, without addressing whether exceptional circumstances existed that warranted sua sponte reopening.  

In one case, the Ninth Circuit noted that "[t]he BIA abused its discretion in denying Benitez’s motion to reopen, however, because it appears not to have considered whether Benitez was entitled to the requested relief as a matter of discretion."  In the second case, the NInth Circuit noted that "[t]he BIA indicated that the law precluded reopening, which appears to be contrary to a regulation providing that the BIA always has discretion to reopen proceedings.  Indeed, the Government’s position at oral argument was that the BIA had discretion and that the BIA had exercised that discretion by denying reopening.  In light of the Government’s concession that reopening is a matter of discretion, the BIA’s apparent failure to recognize its discretionary authority and then to consider whether to grant or deny reopening as a matter of discretion warrants remand."

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

https://cdn.ca9.uscourts.gov/datastore/memoranda/2016/08/16/14-73614.pdf

The full decision in Osegueda de Alfaro v. Lynch can be found here:

https://cdn.ca9.uscourts.gov/datastore/memoranda/2016/08/16/14-72679.pdf

Ninth Circuit Determines that Florida Conviction for Manslaughter does not Qualify as a Crime of Violence under the Sentencing Guidelines

The Ninth Circuit has determined that a Florida conviction for manslaughter does not qualify as a crime of violence under the federal sentencing guidelines because the statute does not require a minimal mens rea of at least recklessness.  Given that the Ninth Circuit has defined a crime of violence in the immigration context to require a higher mens rea than recklessness, this decision will provide immigration attorneys with a great argument that a conviction under this statute is not a crime of violence aggravated felony.

The full text of United States v. Mendoza Padilla can be found here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/16/15-10051.pdf

Fifth Circuit Determines the Appropriate Standard of Review for the Firm Resettlement Bar

The Fifth Circuit has determined that the proper standard of review to apply to the Board of Immigration Appeals' (Board) factual determination that an asylum applicant was firmly resettled in a third country is substantial evidence.  In the instant case, the petitioner did not meaningful contest the Immigration Judge's finding that she was firmly resettled in Mexico, but asserted that an exception to the firm resettlement bar applied in her case - namely, that she remained in Mexico only as a necessary consequence of her flight from Bolivia.  The agency disagreed, noting the length of her residency in Mexico, her travels in and out of Mexico, and her ability to work in Mexico.  As such, the court found that substantial evidence supported the conclusion that she was not in Mexico only as long as necessary to arrange onward travel.

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

http://www.ca5.uscourts.gov/opinions/pub/15/15-60126-CV0.pdf

First Circuit Rejects Domestic Violence-Based Asylum Claim

The First Circuit rejected an appeal from a petitioner who claimed to have been persecuted on account of her membership in the particular social group comprised of "Salvadoran women in intimate relationships with partners who view them as property."  The petitioner testified that she had a relationship with her abuser for approximately 18 months, but that the two of them never lived together.  He became progressively more abusive throughout the relationship, inflicting verbal, physical, and sexual abuse on her.  She conceived a child as a result of the sexual abuse.  Her abuser was incarcerated on unrelated charges during the last year of their relationship.  He called her and threatened her from jail on a regular basis.  He purchased a home for her to live in with their child.  He remained incarcerated when she left El Salvador.  

The First Circuit concluded that "[b]eing in an intimate relationship with a partner who views you as property is not an immutable characteristic."  The court distinguished the decision from the married woman in Matter of A-R-C-G-, noting that this applicant had never lived with her abuser and her abuser was incarcerated for the majority of their relatively short relationship.  As such, the court concluded that she could have left the relationship.  

The decision is alarming and seems to misunderstand the dynamics of domestic violence.  The abuser's financial control, for example, was not addressed as a possible reason that the petitioner could not leave the relationship.  In addition, the court failed to recognize that the birth of the petitioner's child - a product of rape - could emotionally, legally, and financially bind her to her abuser, who likely had parental rights to see his child.

The full decision in Vega-Ayala v. Lynch can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/15-2114P-01A.pdf

Seventh Circuit Finds Credible Fear Interview Notes Insufficiently Reliable to Support Adverse Credibility Determination

The Seventh Circuit has determined that an asylum officer's notes from a credible fear interview are insufficiently reliable to sustain an adverse credibility determination.  The court noted that the officer's notes specifically state they are not a verbatim transcript and do not represent an in-depth assessment of the applicant's asylum claim.  

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D08-05/C:15-2603:J:PerCuriam:aut:T:op:N:1806548:S:0

En Banc Fifth Circuit Reverses Precedent Regarding 18 USC 16(b)

Sitting en banc, the Fifth Circuit has reversed its decision earlier this finding that 18 USC 16(b) is unconstitutionally vague.  Instead, the court differentiated 16(b) from the residual clause of the Armed Career Criminal Act (declared unconstitutionally vague by the Supreme Court in 2015 in Johnson v. United States), and declined to extend the decision in Johnson.  The circuits have split on the constitutionality of 16(b) following Johnson, and it seems likely that the Supreme Court will need to take up the issue in the near future.

The full text of United States v. Gonzalez Longoria can be found here:

http://www.ca5.uscourts.gov/opinions/pub/15/15-40041-CR2.pdf

My blog post about the earlier 3 panel decision in the case (reversed by the en banc decision) can be found here: 

http://www.sabrinadamast.com/journal/2016/2/12/fifth-circuit-finds-18-usc-16b-to-be-unconstitutionally-vague