BIA Finds Cuban Parolee Ineligible for Adjustment of Status under Section 209 of the INA

The Board of Immigration Appeals has determined that a Cuban paroled into the United States under section 212(d)(5) of the INA was not admitted to the United States as a refugee, and as such, cannot apply for adjustment of status under section 209 of the INA, which applies only to asylees and refugees.  Moreover, though his parole was for the purpose of applying for asylum, his application for asylum was never granted, and therefore, he cannot take advantage of adjustment of status under section 209 of the INA as an asylee.

The full text of Matter of L-T-P- can be found here:

https://www.justice.gov/eoir/page/file/914421/download

Ninth Circuit Addresses Particular Social Group Framework

The Ninth Circuit has determined that the social distinction and particularity requirements imposed by the Board of Immigration Appeals on the definition of a particular social group are reasonable interpretations of the asylum statute.  The court further determined that the evidentiary record did not compel the conclusion that former gang members qualify as a particular social group.  The court  did, however, grant the petition for review with respect to the applicant's request for protection under the Convention Against Torture, noting evidence that former gang members are killed by gang members, and that such acts would constitute torture.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/11/30/14-70686.pdf

Ninth Circuit Addresses Fraudulent Entry Under Visa Waiver Program

The Ninth Circuit has determined that a person who enters the United States on the visa waiver program on a fraudulent passport is still subject to the waiver of rights associated with a visa waiver entry.  As such, the person is not entitled to have an immigration judge adjudicate an application for adjustment of status.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/11/28/13-73062.pdf

Fifth Circuit Determines that "Persons Believed to be Wealthy" do not Constitute a Particular Social Group

The Fifth Circuit has determined that "persons believed to be wealthy because they are returning to their home country from the United States" do not constitute a cognizable particular social group for asylum or withholding of removal purposes.  The court further noted that it does not recognize economic extortion as a form of persecution under immigration law.

The full text of Gonzalez-Soto v. Lynch can be found here:

http://www.ca5.uscourts.gov/opinions/pub/14/14-60722-CV0.pdf

Eighth Circuit Determines that Minnesota Conviction for Terroristic Threats is not a Violent Felony

In the context of a criminal sentencing case, the Eighth Circuit has determined that a Minnesota conviction for terroristic threats does not qualify as a violent felony under the Armed Career Criminal Act (ACCA).  Given the similarity between the definition of a violent felony under the ACCA and the definition of a crime of violence in the immigration context, this decision could have persuasive value in the immigration context.

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

http://media.ca8.uscourts.gov/opndir/16/11/161304P.pdf

Ninth Circuit Retroactively Applies Supreme Court's Decision in Holder v. Martinez-Gutierrez

The Ninth Circuit has retroactively applied the Supreme Court's decision in Holder v. Martinez-Gutierrez, where the Court held that an applicant for cancellation of removal for lawful permanent residents cannot use a parent's years of residency in the United States to fulfill the 7-year residency requirement in the cancellation statute.  The Ninth Circuit applied the Montgomery Ward retroactivity analysis, and concluded that the petitioner did not reasonably rely on its contrary decision in Cuevas-Gaspar v. Holder because multiple courts disagreed with that decision, thus putting the petitioner on notice that the decision was vulnerable.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/11/16/12-73654.pdf

BIA Issues Two Precedential Decisions Addressing Theft Crimes as CIMTS

The Board of Immigration Appeals (Board) has issued a pair of companion cases addressing when theft crimes are properly considered to be crimes involving moral turpitude (CIMT).  In Matter of Diaz-Lizarraga, the Board determined that a conviction for theft would qualify as a CIMT if it required an intent to permanently deprive the owner of the property or circumstances where the owner's property rights are substantially eroded.  The Board then determined that a conviction for shoplifting in Arizona categorically qualified as a CIMT.  In Matter of Obeya, the Board applied this new definition to determine that conviction for petit larceny in New York is also a CIMT.

The full text of Matter of Diaz-Lizarraga can be found here:

https://www.justice.gov/eoir/page/file/910821/download

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

https://www.justice.gov/eoir/page/file/910826/download

Third Circuit Invalidates 18 USC 16(b)

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: 

http://www2.ca3.uscourts.gov/opinarch/144476p.pdf

BIA Finds that 237(a)(1)(H) Waiver does not Waive a Crime Involving Moral Turpitude

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:

https://www.justice.gov/eoir/page/file/907141/download

Second Circuit Upholds Waiver of Removal Proceedings for ESTA Entrant

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:

http://www.ca2.uscourts.gov/decisions/isysquery/f1438584-6837-45b7-8a88-c47905e04809/1/doc/15-1308_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/f1438584-6837-45b7-8a88-c47905e04809/1/hilite/

Seventh Circuit Affirms Marriage Fraud Finding

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:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D11-01/C:13-2478:J:Hamilton:aut:T:fnOp:N:1855990:S:0

Eighth Circuit Finds that Missouri Second-Degree Robbery Conviction is not a Crime of Violence

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:

http://media.ca8.uscourts.gov/opndir/16/10/153506P.pdf

USCIS Announces Fee Increases

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!

USCIS Announces New Guidance for Extreme Hardship Standard

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

TPS for Nepal Extended

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

Tenth Circuit Finds that New Mexico Conviction for Aggravated Assault with a Deadly Weapon is a Crime of Violence

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:

https://www.ca10.uscourts.gov/opinions/15/15-2146.pdf

Ninth Circuit Rejects Due Process Claim from Cancellation Applicants

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

Ninth Circuit Construes Reinstatement Provision

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

Sixth Circuit Distinguishes Matter of A-R-C-G-

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

Fifth Circuit Find Arkansas Drug Conviction to be an Aggravated Felony

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