Fourth Circuit Reaffirms Family-Based Particular Social Group

In an unpublished decision, the Fourth Circuit again re-affirmed its family-based particular social group analysis, finding that a woman was eligible for asylum based on her family relationships, when she was persecuted because of her familial relationship to her father and brother.  "The correct analysis focuses on Gomez herself as the applicant, and asks whether Gomez was targeted because of her membership in the social group consisting of her immediate family. In other words, whether she would have been selected as the recipient of those threats absent that familial connection.  It is of no moment that the IJ made a finding of fact that the gang’s motivation with respect to her father and brother was actually because of extortion and not religious activity, as we explained in both Cordova and Hernandez-Avalos."  

The full decision in Gomez v. Sessions can be found here: 

http://www.ca4.uscourts.gov/Opinions/Unpublished/152576A.U.pdf

BIA Determines that CA Conviction for Assault with a Deadly Weapon or Force Likely to Produce Great Bodily Injury is Categorically a CIMT

The Board of Immigration Appeals (Board) has determined that a California conviction for assault with a deadly weapon or force likely to produce great bodily injury is categorically a crime involving moral turpitude (CIMT).  The Board note that most general assault crimes are not CIMTs, but clarified that because the California statute required either the use of a deadly weapon or force likely to produce great bodily injury - both of which it considered to be aggravating factors - it was more reprehensible than a general assault.  This more serious conduct counterbalanced the lack of any specific intent to cause harm in the statute. 

The full text of Matter of Wu is available here:

https://www.justice.gov/file/957431/download

BIA Rules that Statutory Rape can be a CIMT Even if Statute Requires no Culpable Mental State about the Victim's Age

Pedro Jimenez-Cedillo was convicted of sexual solicitation of a minor in violation of section 3-324 of the Maryland Criminal Law.  Jimenez-Ceillo argued that his state statutes of conviction reach consensual sexual conduct and do not require that a violator possess any culpable mental state regarding the age of the victim. The Department of Homeland Security argued that although the Maryland law lacks these elements, the offense is a categorical crime involving moral turpitude because all violations of the statutes necessarily involve either a very young victim—that is, a child under 14 years of age—or a substantial age difference between an adult perpetrator and a minor victim under the age of 16.  "While we held in Matter of Silva-Trevino that moral turpitude was inherent in a sexual offense against a minor if an alien knew or should have known that the victim was a minor, our decision did not foreclose the possibility that moral turpitude will inhere in some crimes, even if the relevant statute lacks an element that requires the perpetrator to have some culpable mental state regarding the victim’s age."  "We therefore clarify our decision in Matter of Silva-Trevino and now hold that a sexual offense in violation of a statute enacted to protect children is a crime involving moral turpitude where the victim is particularly young—that is, under 14 years of age—or is under 16 and the age differential between the perpetrator and victim is significant, or both, even though the statute requires no culpable mental state as to the age of the child." "[S]ection 3-307(a)(3) of the Maryland Criminal Law, the victim is much younger (no older than 13) and the perpetrator must be at least 4 years older. While sections 3-307(a)(4) and (5) reach relatively older victims (under 16 years of age), these provisions also require that the perpetrator be an adult who is significantly older than the victim—specifically, at least 6 years older. We therefore conclude that all of the conduct proscribed by section 3-307 categorically fits within the generic definition of a crime involving moral turpitude.  Finally, we note that a defendant may be convicted under section 3-324(b) for knowingly soliciting a law enforcement officer who is posing as a minor to engage in sexual activity. We understand such an act to be equivalent to an attempt to engage an actual minor in unlawful sexual activity."

The full text of Matter of Jimenez-Cedillo can be found here:

https://www.justice.gov/eoir/page/file/955631/download

Ninth Circuit Punts on Question of Divisibility of CA Joyriding Statute

Guillermo Arriaga-Pinon argued that in light of Mathis v. United States, the Ninth Circuit needed to reconsider its holding in Duenas-Alvarez v. Holder that section 10851 of the California Penal Code (CPC) is divisible with respect to principal actors and accessories after the fact.  The Court declined to address the divisibility question, but instead found that the record of conviction  did not conclusively establish that Arriaga-Pinon had been convicted of driving or taking the vehicle, where merely driving the vehicle would not be an aggravated felony.

The full text of United States v. Arriaga-Pinon can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/04/07/16-50188.pdf

First Circuit Denies Citizenship Claim Based on Legitimation Laws

The First Circuit found that Frank Monteiro Miranda, a lawful permanent resident who was born in Angola to unmarried parents of Cape Verde citizenship, did not derive citizenship under former section 321 of the INA when his mother naturalized.  The Court noted that Angola, Cape Verde, and Massachusetts (the state in which his parents later wed) had all abolished the legal distinctions between legitimate and illegitimate children before Miranda's mother naturalized.  Moreover, Miranda's father signed his birth certificate in front of witnesses, evidencing his acknowledgement of paternity.  Thus, Miranda did not derive citizenship by virtue of his mother's naturalization.  In addition, in light of this legal framework, a second Immigration Judge was not required to give res judicata effect to an earlier Judge's finding that Miranda had derived citizenship.

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

http://media.ca1.uscourts.gov/pdf.opinions/16-2174P-01A.pdf

Fifth Circuit Construes Requirements for Convention Against Torture

The Fifth Circuit has determined that an applicant need only show acquiescence by low level government officials, and not high ranking officials, to demonstrate eligibility for protection under the Convention Against Torture.

The full text of Iruegas-Valdez v. Yates can be found here:

http://www.ca5.uscourts.gov/opinions/pub/15/15-60532-CV0.pdf

Seventh Circuit Chastises BIA for Failing to Take Note of Widely Reported Country Conditions

Deng Arej was born in the southern part of Sudan, but later relocated to the northern part of Sudan.  He was admitted to the United States as a refugee before Sudan split into two countries.  As a result of a criminal conviction, he was ordered removed.  After 8 months of detention, he sought to reopen his case based on changed country conditions, including the rapidly worsening conditions in South Sudan.  The Immigration Judge denied his motion, finding that he had not demonstrated any material changed conditions.  The Board of Immigration Appeals (BIA) affirmed.

The Seventh Circuit reversed.  The Court noted that the BIA "ignored the growing violence in the south during this period."  Furthermore, a competent immigration service would not ignore world events. The dramatically worsening conditions in South Sudan have been widely reported, with the young nation described as “cracking apart” and United Nations officials raising concerns about genocide. Tens of thousands of civilians have been killed, every major cease‐fire that has been painstakingly negotiated by African and Western officials has been violated, and dangerous fissures are opening up within the South Sudanese military.  And time doesn’t stand still. The Board’s order dismissing Arej’s appeal from the immigration judge’s denial of his motion to reopen was issued on May 8, 2015—almost two years ago. Considering that Arej has not yet been removed and that the order was perfunctory, the Board should consider whether he should be allowed to present evidence concerning current conditions in the two Sudans."

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D03-28/C:15-2061:J:Posner:aut:T:fnOp:N:1937333:S:0

Ninth Circuit Deems TPS to be an Admission for Adjustment of Status Purposes

The Ninth Circuit has determined that a non-citizen who has been granted Temporary Protected Status (TPS) has been inspected and admitted, as required for adjustment of status under section 245(a) of the INA.  The court noted that the INA specifically states that for adjustment of status purposes, TPS holders are considered to be maintaining lawful nonimmigrant status, and also deems that a person must be admitted to the United States to obtain nonimmigrant status.

The full text of Ramirez v. Brown can be found here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/03/31/14-35633.pdf

Eighth Circuit Finds that KS Conviction for Attempted Aggravated Assault is Crime of Violence

The Eighth Circuit has determined that a Kansas conviction for attempted aggravated assault qualifies as a crime of violence under the federal sentencing guidelines.  The court noted that the statute requires that a defendant make the victim reasonably fear immediate physical harm, and that such conduct constitutes the use of violent force.  Given the similarity in the definition of a crime of violence under the sentencing guidelines and the definition of a crime of violence aggravated felony in the Immigration and Nationality Act, this case likely impacts whether a conviction under this statute would be considered an aggravated felony for immigration purposes.

The full text of US v. Price can be found here: 

http://media.ca8.uscourts.gov/opndir/17/03/161334P.pdf

Ninth Circuit Applies 212(h) Aggravated Felony Bar to those Admitted to the US as Conditional Residents

The Ninth Circuit has held that individuals who enter the United States as conditional residents (i.e., those who obtain their conditional residency through consular processing and not adjustment of status) are subject to the aggravated felony bar in section 212(h) of the INA.  In other words, such individuals are not eligible for a 212(h) waiver of inadmissibility if they have been convicted of an aggravated felony since their admission to the United States as conditional residents.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/03/24/13-73455.pdf

Ninth Circuit Holds that Unauthenticated Immigration Applicants do not Establish Alienage

The Department of Homeland Security (DHS) sought to introduce evidence of Felipe De Jesus Flores' alienage through a Form I-485 and Form G-325A that he had allegedly submitting to the former Immigration and Naturalization Service.  In an attempt to authenticate these documents, the DHS presented a letter from Supervisory Deportation Officer Barr that stated that the documents were copies of documents found in De Jesus Flores' A file.   The letter also stated that Barr’s “official duties and responsibilities include creation and maintenance of official DHS records, pursuant to the delegated authority from the Secretary of Homeland Security, legal custodian under Section 103 of the Immigration and Nationality Act, as amended.” It further states that Barr is an “authorized certifying designee 4 of the Secretary of Homeland Security.” 

The court noted that the governing regulation, 8 C.F.R. § 287.6(a), states that any official record should be certified by “the official having legal custody of the record or by an authorized deputy.” Under 8 U.S.C. § 1103(a)(2), the Secretary of DHS (“Secretary”) is clearly designated as the legal custodian of all immigration records, and further, under 8 U.S.C. § 1103(a)(6), the Secretary has the authority to confer his “powers, privileges, or duties” onto his employees. Finally, 8 C.F.R. § 2.1 states that the Secretary may accomplish such conferral through “regulation, directive, memorandum, or other means as deemed appropriate.”

The court held that no evidence, aside from Barr’s own statements, however, that the Secretary conferred Barr with the duty to certify documents on his behalf. Under 8 C.F.R. § 2.1, the Secretary has four methods of delegating his authority, and the government had failed to provide evidence of any of them. 

The full text of de Jesus Flores v. Sessions can be found here:

https://cdn.ca9.uscourts.gov/datastore/memoranda/2017/03/20/14-71561.pdf

Ninth Circuit Addresses Gang Persecution

In an unpublished decision, the Ninth Circuit determined that a woman who was persecuted by gang members in Guatemala because she reported their criminal acts to the police may qualify for asylum or withholding of removal under the Court's decisions in Henriquez-Rivas v. Holder and Piric-Boc v. Holder.

The full text of Ramirez-Ruano v. Sessions can be found here:

https://cdn.ca9.uscourts.gov/datastore/memoranda/2017/03/21/13-71765.pdf

Sixth Circuit Construes Entry without Apprehension for NACARA

One of the statutory requirements for NACARA cancellation of removal is that a person not have been apprehended at the time of entry on after December 19, 1990.  An entry requires (1) a crossing into the territorial limits of the United States; (2) inspection and admission by an immigration officer or actual and intentional evasion of inspection; and (3) freedom from official restraint.  There are at least two ways in which the government might restrain an individual: (1) it could stop the individual physically at the border or (2) it could monitor the individual as he crosses the border by conducting surveillance of him.  However, when the government is alleging the latter situation, the burden is on the government to produce evidence of such surveillance.

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

http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0063p-06.pdf

Tenth Circuit Finds that CO Conviction for Giving False Information to a Police Officer or City Employee is not a CIMT

The Tenth Circuit has determined that a Colorado conviction for giving false information to a police officer or city employee is not a crime involving moral turpitude.  The court noted that fraud is not an explicit element of the offense, nor is there an implicit element of fraudulent intent in the statute because the commission of the crime does not necessarily entail fraud.  There is no requirement that the false statement be material or be given with the intent to mislead the city official, to disrupt the official’s investigation, or to otherwise cause any harm or obtain any benefit.  In sum, "[f]or a false statement to violate DMC § 38-40, it need not involve fraud, cause harm to the government or anyone else, obtain a benefit for the speaker, or be given with the intent to achieve any of these ends."  

The full text of Flores-Molina v. Sessions can be found here:

https://www.ca10.uscourts.gov/opinions/16/16-9516.pdf

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/