Ninth Circuit Addresses Standard for Asylum Based on Private Harm

In the context of an asylum claim raised by a gay Mexican man, the Ninth Circuit has determined that credible written and oral testimony that reporting private harm is futile and potentially dangerous, that other young gay men had reported their abuse to the Mexican police to no avail, and country reports and news articles documenting official and private persecution of individuals on account of their sexual orientation—satisfies the Court's longstanding evidentiary standards for establishing past persecution.  In so doing, the court overruled its prior decision in Castro-Martinez v. Holder to the extent that it held that the failure to report harm by private parties to the police created an evidentiary gap, particularly when the harm is inflicted on a child.  The en banc decision is a terrific victory for the LGBT immigrant community, breathing new life into Mexican LGBT asylum claims.

The full text of the en banc decision in Bringas-Rodriguez v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/03/08/13-72682.pdf

Eighth Circuit Addresses Kansas Municipal Judgments

The Eighth Circuit has determined that municipal judgments under Kansas law qualify as convictions for immigration purposes.  The court further determined that theft, as defined in the Uniform Public Offense Code, requires permanent takings, thus, qualifies as a crime involving moral turpitude.

The full text of Dominguez-Herrera v. Sessions can be found here:

http://media.ca8.uscourts.gov/opndir/17/03/153457P.pdf

Fourth Circuit Broadens its Family-Based Particular Social Group Caselaw

The Fourth Circuit has held that a woman who was threatened by the murderers of her common law husband.  Specifically, the court recognized that the applicant was more likely than others to investigate her common law husband's death and report his death to the police because of her family relationship to him.  As such, her family relationship was one central reason for her persecution.  This caselaw is excellent precedent for expanding family-based social groups to include co-habitating domestic partners.

The full text of Cantinallo Cruz v. Sessions can be found here:

http://www.ca4.uscourts.gov/Opinions/Published/152511.P.pdf

Third Circuit Evaluates Court Martial Conviction for Sodomy

The Third Circuit has determined that in 2000, the Uniform Code of Military Justice (UCMJ) did not distinguish between forcible sodomy and voluntary sodomy.  The court held that the accompanying sentencing guidelines, promulgated by the president, which allow for a sentencing enhancement in cases involving forcible sodomy, cannot override the plain text of the statute for the purposes of the categorical analysis.  To hold otherwise would violate the separation of powers doctrine, which permits only Congress to define the elements of federal criminal statutes.  Because consensual sodomy has been held to be a protected activity by the Supreme Court in Lawrence v. Texas, a conviction under the sodomy statute, as codified in the UCMJ in 2000, is not a removable offense.  The court noted that the UCMJ has since been amended to criminalize only forcible sodomy, so this decision will not apply to convictions for sodomy under the current version of the UCMJ.

The full text of Chavez-Alvarez v. Attorney General can be found here:

http://www2.ca3.uscourts.gov/opinarch/161663p.pdf

Second Circuit Construes Old Derivative Citizenship Statute

The Second Circuit has construed the legitimation requirements of the Immigration and Nationality Act (INA), as they pertain to former section 321 of the INA, which governed derivative citizenship claims for children who were over 18 on February 27, 2001.  Under this section, an individual derived citizenship if one parent was deceased and the surviving parent naturalized before the child's 18th birthday.  However, if the individual was born out of wedlock, he would only be considered the child of the naturalized parent if he was legitimized before his 16th birthday.  

July Gil argued that the Dominican Code for the Protection of Children (DCPC) retroactively abolished all distinctions between children born in and out of wedlock.  Thus, he is considered under Dominican law to be legitimated since his birth.  However, the DCPC was enacted after his 16th birthday.  The court disagreed, and held that "the legitimizing act at issue here was the enactment of the Code, a law that became effective well after Gilʹs sixteenth birthday.   Because Gil did not gain legitimated status under the new law before he turned sixteen years old, he is not a legitimated child." 

The full text of Gil v. Sessions can be found here: 

http://www.ca2.uscourts.gov/decisions/isysquery/a41ed0f7-8933-48f7-8278-abeb3772baac/1/doc/15-3134_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a41ed0f7-8933-48f7-8278-abeb3772baac/1/hilite/

Second Circuit Defers to BIA on One-Year Filing Deadline for Asylum

The Second Circuit has deferred to the Board of Immigration Appeals' decision in Matter of F-P-R-, which held that the one year filing deadline for asylum must be calculated from the applicant's last entry into the United States.  In so doing, the court overruled its prior precedent, which held that the filing deadline would not be tolled by a brief departure from the United States.

The full text of Linares-Urrutia v. Sessions can be found here:

http://www.ca2.uscourts.gov/decisions/isysquery/a41ed0f7-8933-48f7-8278-abeb3772baac/8/doc/14-4419_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a41ed0f7-8933-48f7-8278-abeb3772baac/8/hilite/

BIA Construes Firearm Deportability Ground

The Board of Immigration Appeals (Board) has determined that a conviction in Oklahoma for transporting a firearm qualifies as a firearms offense under section 212(a)(2)(C) of the INA.  Even though this section of the INA does not explicitly encompass transportation of a firearm (but rather includes possession, sale, use, ownership, purchase, and exchanging of a firearm), the Board determined that the broad wording indicated an intent to encompass all convictions related to firearms.

The full text of Matter of Flores-Abarca can be found here:

https://www.justice.gov/eoir/page/file/944441/download

Fourth Circuit Defers to BIA's Decision in Matter of C-J-H-

The Fourth Circuit has deferred to the Board of Immigration Appeals' decision in Matter of C-J-H- and determined that the Department of Homeland Security can deport an asylee who adjusted status to lawful permanent residence without first terminating the asylum status.  The court emphasized that the resident can still assert an asylum claim as a defense to removal if appropriate.

The full text of Mahmood v. Sessions can be found here:
http://www.ca4.uscourts.gov/Opinions/Published/161438.P.pdf

Fourth Circuit Address Proper Standard of Review for Good Faith Marriage Waiver

Upatcha received conditional residency through her marriage to a US citizen.  Their marriage subsequently ended in a divorce.  She applied for a waiver of the requirement of the joint petition to remove conditions on her residency, on the basis that her marriage was entered into good faith.  The Immigration Judge denied the waiver, finding that she did not enter into her marriage in good faith.  The Board of Immigration Appeals affirmed, finding no clear error in the Immigration Judge's decision.  The Fourth Circuit reversed, finding that the Board of Immigration Appeals should have applied a de novo standard of review to this question of law (i.e., whether the evidence in the record established a good faith marriage).  

The full text of Upatcha v. Sessions can be found here:

http://www.ca4.uscourts.gov/Opinions/Published/151270.P.pdf

Eighth Circuit Construes Missouri Conviction for Violence Against an Inmate

The Eighth Circuit has determined that a Missouri conviction is a violent felony for federal sentencing purposes.  The court consulted state court interpretations to determine that the conviction required the use of violent force.  Because the definition of a violent felony is very similar to the definition of a crime of violence for immigration purposes, this decision may have persuasive value in immigration proceedings.

The decision in US v. Irons can be found here:

http://media.ca8.uscourts.gov/opndir/17/02/161998P.pdf

Eleventh Circuit Addresses Jurisdiction to Reopen Proceedings for Deported Individual

In an unpublished decision, the Eleventh Circuit has held that the Board of Immigration Appeals cannot deny a motion to reopen for the purpose of applying for asylum and withholding of removal solely because the petitioner has been physically deported from the United States.

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

http://media.ca11.uscourts.gov/opinions/unpub/files/201513378.pdf

Fifth Circuit Construes Louisiana First Time Offender Pardon

The Fifth Circuit has held that Louisiana's automatic pardon for first time offenders does not qualify as a full and unconditional pardon, such as would eliminate an aggravated felony and its implications on good moral character for naturalization purposes.  The court noted that Louisiana distinguishes between an automatic pardon - which does not restore a person to a "status of innocence" - and a gubernatorial pardon - which does restore a person to a status of innocence.  

The full text of Nguyen v. USCIS can be found here:

http://www.ca5.uscourts.gov/opinions/pub/16/16-30904-CV0.pdf

Seventh Circuit Construes Deportability for Violating a Protective Order

Section 237(a)(2)(E)(ii) of the INA renders deportable any alien who at any time after admission is en‐joined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued.  The Seventh Circuit has determined that because the statute references a criminal court's determination, an immigration court is not confined to categorical approach when determining if a non-citizen violated the portion of an order designed to protect against threats, harassment, and injury.

The full text of Garcia-Hernandez v. Boente can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D02-07/C:15-2835:J:Hamilton:aut:T:fnOp:N:1908757:S:0

Ninth Circuit Finds no Right to Counsel in Expedited Removal

The Ninth Circuit has held that an individual expeditiously removed by Customs and Border Protection has no right to counsel during the expedited removal process.  This analysis focuses heavily on the idea that expedited orders of removal only apply to individuals who cannot prove they have been present in the United States for 14 days, and thus, not to individuals with strong ties to the United States.  In light of the Trump administration's proposal to expand expedited orders of removal to individuals who cannot prove 2 years of presence in the United States, this finding may be up for review again quite soon.

The court declined to determine if a failure to advise an individual of their right to withdraw their application for admission in expedited removal proceedings violates due process, finding that the petitioner could not prove that it was plausible that such relief would have been granted.  

The full text of US v. Peralta-Sanchez can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/07/14-50393.pdf

Seventh Circuit Finds Lawful Permanent Resident Removable for Voting

Margarita Del Pilar Fitzpatrick, a lawful permanent resident, contends that when filling out the forms at the Department of Motor Vehicles she displayed her green card and her Peruvian passport—but she admits that she also checked a box claiming to be a citizen of the United States.  Fitzpatrick maintains that the desk clerk asked whether she wanted to register, and when she inquired “Am I supposed to?” he replied: “It’s up to you.” She checked that box, was duly registered, and in 2006 twice voted in elections for federal officials.

In light of these facts, the Seventh Circuit would not allow her to take advantage of the “official authorization" defense.  The defense is available to someone who makes complete and accurate representations to a public official and then receives permission from that official, when acting within the scope of his or her authority.  Because Fitzpatrick did not give accurate info to the DMV by virtue of claiming in writing to be a citizen, and because the clerk did not explicitly tell her it was permissible for her to vote, she could not take advantage of the defense.

The full text of Fitzpatrick v. Sessions can be found here: 

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D02-13/C:15-2204:J:Easterbrook:aut:T:fnOp:N:1911733:S:0

Eighth Circuit Rejects Domestic Violence-Based Asylum Claim

The Eighth Circuit has affirmed the denial of asylum to an applicant (Fuentes) who testified she was unable to leave an abusive domestic relationship in Honduras.  The court noted that Fuentes was able to live safely in Honduras away from her abuser for 5 years before leaving the country, engage in a relationship with another man, and have a child with that other man.  Thus, she had demonstrated that she was unable to leave a relationship with her abuser.

The full text of Fuentes-Erazo v. Sessions can be found here: 

http://media.ca8.uscourts.gov/opndir/17/02/153149P.pdf

First Circuit Applies IMMACT Amendments to 212(c)

The First Circuit has determined that the IMMACT amendments to section 212(c), which barred a person convicted of an aggravated felony who served five years or more in prison from seeking a 212(c) waiver, applied to a person whose criminal conduct pre-dated IMMACT but whose conviction post-dated IMMACT.

The full text of Holder v. Sessions can be found here: 

http://media.ca1.uscourts.gov/pdf.opinions/15-1864P-01A.pdf

Eighth Circuit Determines that Wisconsin Burglary Statute is Divisible

The Eighth Circuit has determined that Wisconsin's burglary statute is divisible in light of the Supreme Court's decision in Mathis v. United States.  The court further determined that subsection a of the statute, which criminalized burglary of any building or dwelling, is a match to the generic definition of burglary.  Although this determination arose in the context of a federal sentencing case, given the similarity between the definition of a burglary offense under sentencing law and the definition of a burglary aggravated felony in the immigration context, this decision could be persuasive in the immigration context.

The full text of U.S. v. Lamb can be found here: 

http://media.ca8.uscourts.gov/opndir/17/02/152399P.pdf

Fourth Circuit Defers to BIA Interpretation Regarding Date of Admission for CIMT Charge

Sijapati first entered and was admitted to the United States on a nonimmigrant L-2 visa on January 25, 2001. On December 31, 2002, Sijapati departed the United States for a two-and-a-half week vacation to Nepal, reentering the United States on January 18, 2003, pursuant to his existing L-2 visa. On March 16, 2005, federal immigration officials approved Sijapati’s application for adjustment of status as a lawful permanent resident. On December 12, 2007—more than five years after Sijapati was first admitted into the United States on January 25, 2001, under the L-2 visa, but less than five years after his most recent admission on January 18, 2003, under that visa—a circuit court in Virginia convicted Sijapati of felony embezzlement and imposed an eighteen-month suspended sentence. Following his conviction, the Department of Homeland Security issued to Sijapati a Notice to Appear before the immigration court to face the charge of removability from the United States under Section 237(a)(2)(A)(i) of the INA for having been convicted of a crime of moral turpitude within five years of the date of admission. 

Sijapati argued that the plain language of the statute unambiguously establishes that Congress intended "the date of admission" to correspond to the entry marking the commencement of an alien’s current or most recent period of admission.  The Fourth Circuit disagreed, deferring to the Board of Immigration Appeals' (Board) decision in Matter of Alyazji, in which the Board held that  "the most natural reading of section 237(a)(2)(A)(i) is that the phrase ‘the date of admission’ refers to the date of 10 admission by virtue of which the alien was present in the United States when he committed his crime."  As such, the relevant date of admission for Sijapati was January 18, 2003 entry on the L-2 visa; by virtue of this admission, he was present in the United States when he committed the embezzlement offense.

The full text o Sijapati v. Boente can be found here: 

http://www.ca4.uscourts.gov/Opinions/Published/151204.P.pdf

Ninth Circuit Finds that Oregon Conviction for Delivery of a Controlled Substance is not an Aggravated Felony

The Ninth Circuit has determined that an Oregon conviction for delivery of a controlled substance is not an aggravated felony.  A drug-related offense will constitute an aggravated felony if it matches the definition of a drug trafficking crime (which are any crimes that would be punishable as felonies under the Controlled Substances Act) or an illicit trafficking offense (which requires a commercial dealing to underpin the conviction).  The Oregon statute criminalizes mere solicitation, or an offer to deliver a controlled substance.  The Controlled Substance Act does not include solicitation offenses, and thus, the Oregon statute does not match the definition of a drug trafficking crime.  In addition, there is no commercial dealing required by the statute, and thus, it does not match the definition of an illicit trafficking offense.  Finally, because the definition of attempt within the statute is indivisible with respect to solicitation offenses, the modified categorical approach should not be employed.

The full text of Sandoval v. Yates can be found here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/01/27/13-71784.pdf