USCIS Extends TPS for Sierra Leone, Guinea, and Liberia for Final Six Months

Secretary of Homeland Security Jeh Johnson is extending TPS benefits for beneficiaries of TPS under the designations of Guinea, Liberia, and Sierra Leone for 6 months for the purpose of orderly transition before the designations terminate, effective May 21, 2017. After reviewing country conditions and consulting with the appropriate U.S. government agencies, Secretary of Homeland Security Jeh Johnson has determined that conditions in Guinea, Liberia, and Sierra Leone no longer support their designations for Temporary Protected Status (TPS). 

To provide for an orderly transition, current TPS beneficiaries will automatically retain their TPS and have the validity of their current Employment Authorization Documents extended through May 20, 2017. Beneficiaries do not need to pay a fee or file any application, including for work authorization, in order to retain their TPS benefits through May 20, 2017.

The full text of the announcement can be found here:

https://www.uscis.gov/news/news-releases/temporary-protected-status-benefits-under-designations-guinea-liberia-and-sierra-leone-extended-six-months-orderly-transition-termination-may-2017

BIA Finds that Federal Conviction for Copyright Infringement is a Crime Involving Moral Turpitude

The Board of Immigration Appeals (BIA) has determined that a federal conviction for criminal copyright infringement is a crime involving moral turpitude.  The BIA found the conviction - which requires that the infringement be committed for commercial advantage or private financial gain - is akin to theft or fraud offenses.

The full text of Matter of Zaragoza-Vaquero can be found here:

https://www.justice.gov/eoir/file/896301/download

Eleventh Circuit Addresses Florida Conviction for Abuse of an Elderly or Disabled Person

The Eleventh Circuit has determined that a Florida conviction for abuse of an elderly or disabled person is categorically a crime involving moral turpitude.  The court acknowledged that no actual injury need be inflicted on the victim, and that the statute can be violated by encouraging another person to abuse the victim.  Nonetheless, the court focused on the vulnerable population protected by the statute to find that all conduct criminalized under the statute involves moral turpitude.

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

http://media.ca11.uscourts.gov/opinions/pub/files/201512497.pdf

Tenth Circuit Affirms Legality of Final Administrative Order of Removal Process

The Tenth Circuit has determined that the administrative removal process for non-lawful permanent residents convicted of aggravated felonies is legal.  The court also determined that a federal felony conviction for possession with intent to distribute marijuana is an aggravated felony.

The full text of Osuna-Gutierrez v. Johnson can be found here:

https://www.ca10.uscourts.gov/opinions/14/14-9593.pdf

Ninth Circuit Dismisses Class Action Claim for Appointed Counsel for Unrepresented Minors

The Ninth Circuit has dismissed a class action lawsuit brought by unaccompanied minors seeking appointed counsel to represent them in their immigration proceedings.  The court determined that right-to-counsel claims can only be brought through the petition for review process - which follows the administrative immigration proceeding - and not through a district court action.  The court acknowledged the difficulty of expecting an unrepresented child to assert a right to counsel, but determined that the relevant jurisdictional statutes constrained their authority.  The court clearly expressed an expectation that a right to counsel claim will be brought through a petition for review, and called on Congress and the Executive to resolve this problem through the legislative process instead of waiting for judicial decision.

The full text of J.E. F.M. v. Lynch can be found here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf

Ninth Circuit Construes Terrorist Bar

The Ninth Circuit has adopted a framework for analyzing when the material support to terrorism bar applies.  Thus, the Government must show that the record evidence raises the inference that each element of the terrorist bar could be met before the applicant’s burden of proof arises.  To invoke the terrorist bar, it is not enough for the government simply to assert that an individual was involved with a radical political or religious group.  Instead, there must be some evidence indicating that all of the following is true: that the alleged terrorist group consisted of two or more people, who engaged in one of six enumerated “terrorist activities,” and that the applicant for relief actually knew of this activity when he provided material support to the group. 

In the instant case, the IJ was required to find that the JMA (the purported terrorist group at issue) used “any . . . explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain)” in pursuit of its goals.  Because the record was devoid of any evidence that the JMA ever used weapons to pursue its goals, the agency erred by deeming it a terrorist organization.  

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/21/12-71804.pdf

First Circuit Permits Adverse Credibility Finding Based on Border Interview

The First Circuit has upheld an adverse credibility determination based on discrepancies between the applicant's in-court testimony and his interview with a government official at the border at the time of his entry into the United States.  Despite the applicant's assertions that he did not remember being asked certain questions during the border interview and that his testimony during that interview was affected by stress and the necessity of using a telephonic interpreter, the court found that "ample evidence" supported the adverse credibility determination.

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

http://media.ca1.uscourts.gov/pdf.opinions/15-2529P-01A.pdf

Tenth Circuit Finds 18 USC 16(b) to be Unconstitutionally Vague

Joining the Sixth and Ninth Circuits, the Tenth Circuit has determined that the definition of a crime of violence contained in 18 USC 16(b) is unconstitutionally vague under the Supreme Court's 2015 decision in Johnson v. United States.

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

https://www.ca10.uscourts.gov/opinions/16/16-9530.pdf

Eleventh Circuit Evaluates a Florida Conviction for Sale of a Controlled Substance

The Eleventh Circuit has determined that sale of a controlled substance under Florida Statute § 893.13(1)(a)(1) is an illicit trafficking aggravated felony.  The court determined that the statute is divisible, containing 6 discrete offenses: sale, delivery, manufacture, possession with intent to sell, possession with intent to deliver, and possession with intent to manufacture.  Thus, the modified categorical approach was appropriately applied to determine that the petitioner was convicted of sale of a controlled substance.

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

http://media.ca11.uscourts.gov/opinions/pub/files/201511299.pdf

BIA Addresses the Intersection of Extortion and Theft Offenses

The Board of Immigration Appeals (BIA) has determined that extortionate takings qualify as theft offenses because takings accomplished through threats, fear, or force are essentially non-consensual.  Accordingly, the BIA held that a California robbery conviction is a theft offense aggravated felony.

The full text of Matter of Ibarra can be found here:

https://www.justice.gov/sites/default/files/pages/attachments/2016/09/15/3872.pdf

Ninth Circuit Construes "Admission in any Status"

The Ninth Circuit has determined that an applicant who was listed as a derivative beneficiary on his mother's NACARA application was not admitted in any status (as contemplated by the cancellation of removal for lawful permanent residents statute) at the time of that application.  In addition, the conferring of work authorization as a result of that pending application did not result in an admission. 

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/14/13-74056.pdf

BIA Clarifies Definition of Crime of Violence

The Board of Immigration Appeals (BIA) has issued a new decision in Matter of Guzman-Polanco, a decision issued earlier this year on the definition of a crime of violence.  The BIA continued to indicate that a crime of violence requires violent force, not slight force.  With respect to the issue of indirect force (i.e. the use of poison), the BIA indicated that it would defer to the circuit court interpretations on this issue.

The full text of the new decision in Matter of Guzman-Polanco can be found here:

https://www.justice.gov/eoir/file/890751/download

Eighth Circuit Finds that Minnesota Attempted Drive By Shooting Conviction is a Violent Felony

In the context of a criminal sentencing case, the Eighth Circuit has determined that a Minnesota conviction for attempted drive by shooting is a violent felony under the force clause of the Armed Career Criminal Act (ACCA), even though the statute encompasses reckless conduct.  The ACCA's force clause is worded in a similar fashion to the definition of a crime of violence in the immigration context.  Thus, this case may indicate some of the immigration consequences of a conviction under this statute, depending on whether your circuit has defined crimes of violence to exclude reckless conduct.

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

http://media.ca8.uscourts.gov/opndir/16/09/153078P.pdf

Eighth Circuit Finds that a Minnesota Third Degree Burglary is not a Violent Felony

In the context of a federal sentencing case, the Eighth Circuit has determined that Minnesota's third degree burglary statute does not qualify as a violent felony under the Armed Career Criminal Act (ACCA) because it does not require the defendant to form an intent to commit a crime at the time of his unprivileged entrance.  Given that the ACCA includes burglary offenses (defined similarly to a burglary aggravated felony in the immigration context) as subsets of violent felonies, this case could have persuasive value in the immigration context.

You can read the he full text of US v. McArthur here:

http://media.ca8.uscourts.gov/opndir/16/09/143335P.pdf

Attorney General Lifts Stay on "Crimmigration" Cases

The Attorney General (AG) has lifted the stay on Matter of Chairez and Matter of Sama, finding that the Supreme Court's recent decision in Mathis v. United States addresses the definition of a divisible statute.  The AG remanded all of they stayed cases to the Board of Immigration Appeals.

The full text of the AG's order can be found here:

https://www.justice.gov/sites/default/files/pages/attachments/2016/09/07/3869_0.pdf

BIA Finds that IJs do not Have Jurisdiction to Grant Waivers to U Visa Petitioners

The Board of Immigration Appeals (BIA) has determined that an Immigration Judge does not have jurisdiction to grant a waiver of inadmissibility to a U visa petitioner.  In so doing, the BIA breaks with the Seventh Circuit on this issue.

The full text of Matter of Khan can be found here:

https://www.justice.gov/sites/default/files/pages/attachments/2016/09/08/3870_0.pdf

DHS to Implement a Parole Policy for U Visa Petitioners

USCIS will implement a parole policy in 2017 for U visa petitioners and derivatives.  Though the final policy was not announced, USCIS indicates that the following policy recommendations were made by the Ombudsman's Office:

1. Consistent with its regulations, USCIS should afford parole to eligible U petitioners and family members on the waiting list who reside abroad by creating a policy to facilitate entry into the United States while waiting for a visa to become available.

2. The parole policy created by USCIS should allow for concurrent filings of the U visa petitions and requests for parole.

3. Cases should be adjudicated at the Vermont Service Center, where U petitions currently are processed, to ensure consistent and effective adjudication, and where Congress expressly authorized the placement of the adjudication of vulnerable populations.

We'll anxiously await the final policy next year!

The announcement of the policy can be read here: 

https://www.dhs.gov/sites/default/files/publications/cisomb-u-parole-recommendation-061616.pdf

Ninth Circuit Addresses the Need for Corroborating Evidence

The Ninth Circuit has affirmed its prior case law that an applicant for asylum must be given notice of corroborating evidence required by the Immigration Judge and provided the opportunity to provide that evidence or explain its absence.  In the instant case, the Government questioned the applicant why his brother did not testify to corroborate his story.  The court closed the evidentiary record at the end of the hearing, without providing the applicant with the opportunity to present his brother's testimony once he was notified that it was required.  Similarly, the judge determined that the corroborating documents submitted were insufficiently specific, but did not provide the applicant with the opportunity to present letters with more specific details.  The court remanded the case.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/30/12-74062.pdf

Ninth Circuit Addresses Jurisdiction

The Ninth Circuit has reaffirmed that when the Board of Immigration Appeals (BIA) remands a case to an Immigration Judge solely to address voluntary departure, a final order of removal exists for the purposes of federal court review.  As such, if the non-citizen fails to appeal to the circuit court within 30 days of the BIA's decision, the circuit court lacks jurisdiction to consider any errors in its decision denying other relief.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/01/12-74163.pdf

Ninth Circuit Finds that Individuals in Reinstatement Proceedings are Barred from Seeking Asylum

The Ninth Circuit has determined that a person subject to a reinstated order of removal is not eligible to apply for asylum.  The court acknowledged that the asylum statute allows any non-citizen to apply for asylum, while the reinstatement provision prohibits any person subject to a reinstated order of removal from applying for any immigration relief (including asylum).  The court then acknowledged that despite the absolute language, there are exceptions as to who can apply for asylum, and case law has established that those subject to reinstatement can still apply for withholding of removal and protection under the Convention Against Torture.  Thus, the language of the statutes could not settle the dispute as to which statute trumps.  The court found no information in the legislative history that would settle the question either.  With this ambiguity in mind, the court found that the agency's regulation barring a person subject to reinstatement from applying for asylum was a reasonable interpretation of the statute.

On a brighter note, the court acknowledged that individuals subject to a reinstated order of removal can apply for a U visa.  The court also reminded the Government of its authority to forego reinstating an order of removal, particularly when strong humanitarian concerns arise, thus allowing a person to pursue an asylum claim despite a prior order of removal.  

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/31/13-70579.pdf