These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
The Third Circuit has joined the Ninth Circuit, Sixth Circuit, Tenth, and Seventh Circuits and found that 18 U.S.C. 16(b) is unconstitutionally vague. The decision is based on the rationale in Johnson v. United States. Notably, the Supreme Court will address this issue in Lynch v. Dimaya in the upcoming term.
The full text of Baptiste v. Attorney General can be found here:
The Board of Immigration Appeals has determined that a 237(a)(1)(H) waiver cannot waive a conviction for marriage fraud, when such conviction qualifies as a crime involving moral turpitude. Although the waiver can waive the inadmissibility related to fraud, the conviction qualifies as a separate ground of inadmissibility, not covered by the waiver.
The full text of Matter of Tima can be found here:
The Second Circuit has held that an individual who submits an ESTA form to enter the United States on the visa waiver program electronically certifies that he is waiving his right to apply for any relief from removal other than asylum if he overstays his authorized stay. The court refused to require the Department of Homeland Security to present a physically signed I-94W, noting that the ESTA program is now completed electronically.
The full text of Enes de Vasconcelos v. Lynch can be found here:
The Seventh Circuit has affirmed a finding of marriage fraud by an Immigration Judge in which the Department of Homeland Security presented hearsay evidence that the petitioner's ex-spouses confessed to the fraudulent nature of their marriage. Although the ex-spouse did not testify in court, the Immigration Judge did issue a subpoena to compel her testimony. The Seventh Circuit faulted the petitioner for not requesting that the Immigration Judge request enforcement of the subpoena through the local AUSA's office. Thus, the hearsay evidence was fair and probative.
The full text of Vidinski v. Lynch can be found here:
In a criminal sentencing case, the Eighth Circuit has determined that a conviction for second-degree robbery in Missouri is not a crime of violence because it does not require violent touching. Given the similarity between the definition of a crime of violence in the sentencing context and a crime of violent in the immigration context, this decision provides excellent arguments for practitioners to use in support of the contention that a conviction under this statute is not a crime of violence aggravated felony.
The full text of United States v. Bell can be found here:
Effective December 23, 2016, U.S. Citizenship and Immigration Services is raising the fees on applications for immigration benefits. These increases include (but are not limited to) raising the fee for a Form I-130 from $420 to $535, a Form I-485 from $985 to $1140 (plus biometrics fees), and a Form I-601 from $585 to $930.
The full fee schedule can be found here:
https://www.uscis.gov/forms/our-fees
Get those applications in soon, folks!
U.S. Citizenship and Immigration Services has published new guidance on what factors will meet the extreme hardship requirement for certain waivers of inadmissibility. This guidance, which goes into effect on December 5, 2016, includes a list of "particularly significant factors" that "often weigh heavily in support of finding extreme hardship." These factors include:
-Qualifying relative granted Iraqi or Afghan Special Immigrant Status, T visa status, asylum, or refugee status
-Qualifying relative or related family member dependent on qualifying relative is disabled
-Qualifying relative is a member of the U.S. military
-The Department of State has issued travel warnings recommending against travel to the applicant's country of origin
-Substantial displacement of care of applicant's children
The full text of the policy manual updates can be read here:
https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume9-PartB-Chapter5.html#S-E
U.S. Citizenship and Immigration Services has extended Temporary Protected Status for citizens of Nepal for an additional 18 months, effective December 25, 2016.
The full text of the announcement can be read here:
https://www.uscis.gov/news/news-releases/temporary-protected-status-extended-nepal
In a federal sentencing case, the Tenth Circuit has determined that a New Mexico conviction for aggravated assault with a deadly weapon is categorically a crime of violence because it requires the use of a deadly weapon during the assault. Given the similarities between the definition of a crime of violence in the criminal sentencing context and the immigration context, this decision will likely have persuasive value when evaluating whether this conviction qualifies as a crime of violence aggravated felony.
The full text of United States v. Maldanado-Palma can be found here:
The Ninth Circuit has rejected a claim from two applicants for cancellation of removal for non-lawful permanent residents because the agency failed to adjudicate their applications before their qualifying relatives (their children) reached the age of 21 (and thus, no longer qualified as children). First, the Ninth Circuit deferred to the Board of Immigration Appeals' decision in Matter of Isidro-Zamorano, which held that the qualifying relative must remain a child (i.e. unmarried and under age 21) at the time the application for cancellation is adjudicated (as opposed to when the application is filed). Second, the Ninth Circuit held that the applicants lacked any legitimate claim of entitlement to having their applications adjudicated before their sons turned 21 because no statute or regulation requires the government to take action on their applications within a set period, nor does cancellation of removal give rise to a "substantive interest protected by the Due Process Clause.” Moreover, the processing delays in the cases were routine, and neither applicant made any attempt to expedite their cases to ensure adjudication before their children turned 21. Thus, the delay in processing did not violate the applicants' due process rights. Finally, the Court deemed the statutory cap on cancellation cases to be well within the discretion of Congress to create though duly enacted legislation, and as such, the cap did not violate anyone's due process rights.
The full text of Mendez Garcia v. Lynch can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/10/20/15-71931.pdf
The Ninth Circuit has determined that a person who is issued an expedited order of removal at the border has entered the United States for the purpose of the reinstatement provision. Thus, any subsequent re-entry without valid documentation would qualify as an illegal reentry, triggering the reinstatement provision. In this case, the petitioner re-entered the United States as a passenger in a car, but did not have any valid entry documents. Thus, the Department of Homeland Security was permitted to reinstate the previously issued expedited order of removal.
The full text of Tellez v. Lynch can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/10/24/12-73424.pdf
In a disappointing opinion, the Sixth Circuit affirmed the denial of a domestic violence based asylum claim. The IJ found that Roselyne Marikasi was unable to demonstrate that her status in the domestic relationship with her husband was immutable because she could not show that she was unable to leave the abusive relationship.
The BIA distinguished Marikasi’s case in the following important respects from its seminal case on domestic violence asylum claims: Matter of A-R-C-G-: (1) when Marikasi went into hiding with the Musasa Project, she did not have any contact with her husband; (2) after she left the Musasa Project, she stayed with friends and never returned to her husband; (3) a substantial period of time had passed since Marikasi went into hiding and she remained out of contact with her husband; and (4) she remained out of contact with her husband after leaving Zimbabwe. The Sixth Circuit further noted that she was able to freely move through the country and avoid her husband. Thus, Marikasi failed to substantiate any religious, cultural, or legal constraints that prevented her from separating from the relationship in Zimbabwe or moving to a different part of that country.
This case is troubling - it assumes that the impact of domestic violence somehow ceases once the victim physically removes herself from the batterer's physical presence. It overlooks the long-lasting psychological trauma suffered by a victim, even once she seemingly breaks free of her abuser's control.
The full text of Marikasi v. Lynch can be found here:
http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0260p-06.pdf
The Fifth Circuit addressed the question of whether a conviction for reckless possession with intent to deliver marijuana qualified as an illicit trafficking in a controlled substance aggravated felony. Noting that delivery in Arkansas requires remuneration, the Court deemed the conviction to be an aggravated felony, distinguishable from the Georgia statute at issue in Moncrieffe v. Holder.
The full text of Flores-Larrazola v. Lynch can be found here:
http://www.ca5.uscourts.gov/opinions/pub/14/14-60888-CV0.pdf
The Board of Immigration Appeals (Board) has issued a new decision in Matter of Silva Trevino, dictating how Immigration Judges should analyze whether convictions qualify as crimes involving moral turpitude. The Board acknowledged that this analysis is governed by the categorical and modified categorical approaches, including the Supreme Court's decisions in Descamps v. US and Mathis v. US for determining what constitutes a divisible statute. The Board also noted that a crime involving moral turpitude is generally conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.
With this framework in mind, the Board determined that Texas Penal Code section 21.11(a)(1) (indecency with a child) is not a crime involving moral turpitude because it does not require a defendant to know that the victim is under age 17. Moreover, the parties agreed that the statute is not divisible, and therefore, no modified categorical analysis was necessary.
Finally, the Board declined to extend the heightened discretionary standard for individuals convicted of violent or dangerous crimes - currently applied via regulation to waivers of inadmissibility under section 212(h) of the INA - to other forms of discretionary relief. The Board noted that its current case law already allows a judge to balance the severity of a crime against equities when determining whether to grant discretionary relief (i.e. adjustment of status) to an applicant. Ninth Circuit practitioners can use this decision to roll back the decision in Torres-Valdivias v. Lynch (9th Cir. 2015), which applied the heightened discretionary standard to all forms of discretionary relief (including adjustment of status without a waiver).
The full text of Matter of Silva Trevino can be found here:
The Ninth Circuit has voted to rehear en banc the decision in Ledezma-Cosino v. Lynch, in which the three judge panel determined that the habitual drunkard bar to good moral character violated equal protection.
The decision announcing the en banc can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/10/12/12-73289.pdf
The original three judge decision can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/24/12-73289.pdf
The First Circuit admonished the Board of Immigration Appeals (Board) for failing to exercise its discretion. The petitioner sought reopening after two attorneys (both later disciplined for their unethical representation of clients) provided him ineffective assistance of counsel, resulting in the entry of an in absentia order of removal when he was approximately 30 minutes late to a hearing. Though the Immigration Judge and the Board both agreed that the petitioner had received in effective assistance of counsel sufficient to toll the filing deadline for the motion to reopen, they declined to reopen because the petitioner had received notice of the proper time of his hearing. The court doubted whether being 30 minutes late was really grounds for an in absentia, but noted that attorney's failure to inform the judge of the client's appearance (after the judge indicated a willingness to reopen the case if the petitioner appeared later that morning) was an exceptional circumstance.
The full text of Murillo-Robles v. Lynch can be found here:
On Friday, I drove to Tijuana with several colleagues to volunteer at a migrant shelter. We did consultations with families and individuals. Some have been deported in the past, some are fleeing persecution and seeking entry to the United States for the first time. For many who were planning to turn themselves in at the border to request asylum, I had to explain the likelihood that they could be detained for months or years in an immigration detention center. Their courage was inspiring - so committed were they to making their plea to the U.S. government for safety and asylum, that they were prepared to endure the hardship of detention. It was my honor to have been a part of this wonderful group of volunteers.
The Board of Immigration Appeals (BIA) has set forth its third decision in Matter of Chairez, confirming that the definition of a divisible statute, as set forth in the Supreme Court's decision in Mathis v. United States, applies to immigration proceedings. Accordingly, the BIA determined that section 76-10-508.1 of the Utah Code is overbroad with respect to the definition of a crime of violence because it criminalizes reckless conduct under subsection (1)(a). Moreover, the statute is not divisible because Utah state case law suggests that the mental state is not something upon which a jury must unanimously agree to convict.
The full text of Matter of Chairez can be found here:
The Tenth Circuit has remanded an immigration case in light of the Supreme Court's decision in Mathis v. United States to re-examine whether Utah's drug statutes are divisible, and accordingly, whether a conviction for possession of a controlled substance in Utah qualifies as a controlled substance violation.
The full text of Horng v. Lynch can be found here:
In the context of a criminal sentencing case, the Eighth Circuit has determined that a conviction for first-degree batter in Arkansas (Ark. Code. Ann. section 5-13-201) is a crime of violence. The court noted that the statute is divisible, but that subsection (a)(1), which requires the infliction of serious physical injury through the use of a deadly weapon, requires the requisite violent force to be a crime of violence.
The full text of United States v. Thomas can be found here:
