Ninth Circuit Orders Bond Hearings for Unaccompanied Alien Minors held in the Custody of the Office of Refugee Resettlement

The Ninth Circuit has held that unaccompanied alien minors held in the custody of the Office of Refugee Resettlement are entitled to bond hearings under the Flores settlement.  The passage of subsequent legislation did not invalidate the Flores agreement's requirement for bond hearings.  

As was the case under the Flores Settlement, the determinations made at these bond hearings held will not compel a child’s release. Regardless of the outcome of a bond hearing, a minor may not be released unless the agency charged with his or her care identifies a safe and appropriate placement.  Immigration judges may assess whether a minor should remain detained or otherwise in the government’s custody, but there must 31 still be a separate decision with respect to the implementation of the child’s appropriate care and custody.  At the time the Flores Settlement was signed, it was the INS that was charged with ensuring that a child, regardless of a bond determination, was not released to an improper custodian.17 The only meaningful difference is that today it is ORR, not INS, which is responsible for performing that function. 

The full text of Flores v. Sessions can be read here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/05/17-55208.pdf

Ninth Circuit Denies Bond Hearings for Individuals in Reinstatement Proceedings

The Ninth Circuit has held that individuals in reinstatement proceedings (including withholding only proceedings before an Immigration Judge) are not entitled to bond hearings under section 236(a) of the INA.  The Court reaffirmed that these individuals are entitled to prolonged detention hearings under Diouf v. Napolitano.  The Court recognized that its decision creates a circuit split with the Second Circuit.  

The full text of Padilla-Ramirez v. Bible can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/06/16-35385.pdf

An amended opinion was subsequently published here:

http://www.ca6.uscourts.gov/internet/opinions/opinions.php

Ninth Circuit Addresses Corroborating Evidence Requirements

The Ninth Circuit has determined that a Court need not provide an asylum applicant with notice of the corroborating evidence necessary to support his case and the opportunity to obtain that evidence if the applicant's testimony was not credible.  The Court distinguished its decision in Ren v. Holder, which crafted this "notice and opportunity" requirement for applicants who had provided credible testimony.  

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/03/14-72469.pdf

Ninth Circuit Finds that Conviction for Conspiracy to Export Defense Articles without a License is not a Firearms Trafficking Aggravated Felony

The Ninth Circuit has held that a conviction for conspiracy to export defense articles without a license in violation of 18 U.S.C. § 371 and 22 U.S.C. § 2778, is not a categorical match the definition of a firearms trafficking aggravated felony.  The Court found that 22 U.S.C. § 2778 criminalizes unlicensed export of a broad range of “munitions,” such as “underwater hardware,” and thus, does not meet the definition of the aggravated felony, which is limited to “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.”  The Court also determined that the statute was indivisible, and thus, could never qualify as an aggravated felony.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/03/15-10354.pdf

Ninth Circuit finds that Tennessee Aggravated Assault Qualifies as a Crime of Violence

The Ninth Circuit has determined that a Tennessee conviction for aggravated assault qualifies as a crime of violence.  The court noted that different punishments are prescribed for reckless and intentional conduct.  Thus, the alternative mens reas are alternative elements.  A conviction for intentional conduct under the statute qualifies as a crime of violence, as it requires the infliction of serious bodily injury or the use or display of a deadly weapon.  Therefore, force more violent than mere offense touching is required to sustain a conviction.  Given the similarity between the definition of a crime of violence under the sentencing guidelines and a crime of violence in the immigration context, this decision will likely have persuasive value in the immigration context.

The full text of US v. Perez-Silvan can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/28/16-10177.pdf

Ninth Circuit finds that Texas Aggravated Assault Statute is a Crime of Violence

The Ninth Circuit has determined that a conviction for aggravated assault in Texas is categorically a crime of violence under the federal sentencing guidelines.  The statute requires the infliction of serious bodily injury or the use or exhibition of a deadly weapon.  The court rejected the argument that seriously bodily injury could be inflicted without the use of violence force, such as through the administration of poison.  The court also rejected the assertion that a defendant could exhibit a deadly weapon without using it.  Given the similarity between the definition of a crime of violence under the sentencing guidelines and a crime of violence in the immigration context, this decision will likely have persuasive value in the immigration context.

The full text of US v. Calvillo-Palacios can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/28/16-10039.pdf

Second Circuit Finds that New York Drug Statutes are Indivisible

The Second Circuit has determined that New York's drug statutes are indivisible with respect to the controlled substance involved in an offense.  As such, a conviction under N.Y. Penal Law § 220.31 (criminal sale of a controlled substance in the fifth degree) is not an aggravated felony because a conviction may involve substances not listed in the federal controlled substance schedules.

The full text of Harbin v. Sessions can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/c310fed2-a2b8-4d7f-82f9-48d3d829572c/12/doc/14-1433_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c310fed2-a2b8-4d7f-82f9-48d3d829572c/12/hilite/

Ninth Circuit Acknowledges Changed Country Conditions for the LGBT Community in Ethiopia

The Ninth Circuit has remanded a case in which the Board of Immigration Appeals denied a motion to reopen to seek protection under the Convention Against Torture (CAT) based on changed country conditions in Ethiopia for the LGBT community.  In so doing, the court noted that "at least two of the reports submitted with Agonafer’s motion to reopen provide reports of violence directed against homosexuals in Ethiopia."  "It is undisputed that Agonafer is a homosexual male. Given Agonafer’s sexual orientation and the evidence of the treatment of homosexuals in Ethiopia, there is sufficient evidence that, if proved, would establish his prima facie eligibility for deferral of removal under the CAT."

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/23/13-73122.pdf

Second Circuit Extends Vartelas

The Second Circuit extended the Supreme Court's decision in Vartelas v. Holder, and found that a lawful permanent resident who commits a crime before April 1, 1997, but who is not formally convicted of that crime until after April 1, 1997, is still not subject to grounds of inadmissibility for that conviction if he is returning from a brief, innocent, and casual trip abroad.

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

http://www.ca2.uscourts.gov/decisions/isysquery/b89fe7ff-0f51-4dd0-a70b-a7a14fd38a4f/11/doc/15-516_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/b89fe7ff-0f51-4dd0-a70b-a7a14fd38a4f/11/hilite/

Eighth Circuit Finds that MN Diversion Qualifies as a Conviction

The Eighth Circuit has found that Minnesota's diversion program - which requires a defendant to admit facts sufficient to warrant a guilty finding - qualifies as a conviction for immigration purposes.  In the instant case, the petitioner was ordered to pay restitution and complete community service hours, and the circuit court determined that these requirements qualified as a restraint on the petitioner's liberty.

The full text of Mendoza-Saenz v. Sessions can be found here:

http://media.ca8.uscourts.gov/opndir/17/06/161256P.pdf

Supreme Court Addresses Prejudice Requirement for Ineffective Assistance of Counsel

The Supreme Court has issued further guidance on how immigrants who were misadvised about the immigration consequences of their guilty pleas can establish the required prejudice to vacate those pleas.  Specifically, the Court determined that even an immigrant with no defense to a pending charge might decide to take their chances with a jury, on the slim chance they would be acquitted, rather than take a plea bargain that would result in certain deportation.

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

https://www.supremecourt.gov/opinions/16pdf/16-327_3eb4.pdf

Supreme Court Rules that Non-Material False Statements can not be used to Denaturalize Someone

The Supreme Court has issued a decision construing when a person procures naturalization in a manner contrary to law.  Specifically, the Court held that the false statement must have some causal connection to the approval of the naturalization application.  "The statute it passed, most naturally read, strips a person of citizenship not when she committed any illegal act during the naturalization process, but only when that act played some role in her naturalization."  

"If the facts the defendant misrepresented are themselves disqualifying, the jury can make quick work of that inquiry. In such a case, there is an obvious causal link between the defendant’s lie and her procurement of citizenship. To take an example: An applicant for citizenship must be physically present in the United States for more than half of the five-year period preceding her application."  

"But that is not the only time a jury can find that a defendant’s lie had the requisite bearing on a naturalization decision. For even if the true facts lying behind a false statement would not in and of themselves justify denial of citizenship, they could have led to the discovery of other facts which would do so . . .  a person whose lies throw investigators off a trail leading to disqualifying facts gets her citizenship by means of those lies—no less than if she had denied the damning facts at the very end of the trail."

"When relying on such an investigation-based theory, the Government must make a two-part showing to meet its burden. As an initial matter, the Government has to prove that the misrepresented fact was sufficiently relevant to one or another naturalization criterion that it would have prompted reasonable officials, seeking only evidence concerning citizenship qualifications, to undertake further investigation.  If that much is true, the inquiry turns to the prospect that such an investigation would have borne disqualifying fruit. As to that second link in the causal chain, the Government need not show definitively that its investigation would have unearthed a disqualifying fact (though, of course, it may). Rather, the Government need only establish that the investigation would predictably have disclosed some legal disqualification. If that is so, the defendant’s misrepresentation contributed to the citizenship award in the way we think § 1425(a) requires."

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

https://www.supremecourt.gov/opinions/16pdf/16-309_h31i.pdf

Homeland Security Rescinds DAPA/Expanded DACA memo

The Department of Homeland Security has rescinded the November 2014 memo that would have expanded Deferred Action for Childhood Arrivals (DACA) and would have offered deferred action to certain parents of U.S. citizens and lawful permanent residents.  These programs never went into effect, as an injunction was issued by a federal district court in Texas before they could be implemented.  The original DACA program remains intact.  Though not entirely unexpected, this announcement still comes as a disappointment to all of the families that hoped to benefit from the expansion of deferred action.

The announcement can be found here: 

https://www.dhs.gov/news/2017/06/15/rescission-memorandum-providing-deferred-action-parents-americans-and-lawful

BIA Finds a Receipt of Stolen Property Aggravated Felony Requires “Knowledge or Belief” that Property has been Stolen

The Board of Immigration Appeals (BIA) had determined that the generic definition for a receipt of stolen property aggravated felony includes a requirement that the defendant have knowledge or belief that the property has been stolen.  The South Dakota receipt of a stolen vehicle statute only requires a reason to believe that the vehicle has been stolen.  Thus, this statute does not match the generic definition of a receipt of stolen property aggravated felony.  "We cannot infer that a violator who received property with a “reason to believe” that the property was stolen (or a similar mens rea) intended to deprive the true owner of the rights and benefits of ownership. This is so because such a violator need not be actually aware of the stolen character of the item received in order to be convicted of the offense."  The BIA acknowledged that the statute at issue is indivisible, and thus, will never qualify as a receipt of stolen property aggravated felony.

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

https://www.justice.gov/eoir/page/file/974211/download

Supreme Court Strikes Down Acquired Citizenship Statute on Equal Protection Grounds

The Supreme Court has ruled that 8 USC 1409, which makes it more difficult for unwed US fathers to transmit citizenship to children born abroad than for unwed mothers, violates the guarantee of equal protection before the laws.  "While the equal protection infirmity in retaining a longer physical-presence requirement for unwed fathers than for unwed mothers is clear, this Court is not equipped to grant the relief Morales-Santana seeks, i.e., extending to his father (and, derivatively, to him) the benefit of the one-year physical-presence term §1409(c) reserves for unwed mothers."  Instead, the Court must "extend[] the general rule of longer physical-presence requirements to cover the previously favored group."  "Going forward, Congress may address the issue and settle on a uniform prescription that neither favors nor disadvantages any person on the basis of gender. In the interim, as the Government suggests, §1401(a)(7)’s now-five year requirement should apply, prospectively, to children born to unwed U. S.-citizen mothers."

The full text of Sessions v. Morales-Santana: 

https://www.supremecourt.gov/opinions/16pdf/15-1191_2a34.pdf

BIA Finds that a Receipt of Stolen Property Aggravated Felony does not Require that the Property be Obtained by Theft

The Board of Immigration Appeals has determined that the generic definition of a receipt of stolen property does not require that the property be obtained by common law theft.  Even if the property is obtained by fraudulent means, the conviction can qualify as a receipt of stolen property aggravated felony.  Thus, a conviction under section 496(a) of the California Penal Code qualifies as a receipt of stolen property aggravated felony if a sentence of at least one year of imprisonment is imposed. 

The full text of Matter of Alday-Dominguez can be found here:
https://www.justice.gov/eoir/page/file/970806/download

BIA Determines that a Fraudulently Procured Certificate of Citizenship does not Confer Citizenship

The Board of Immigration Appeals has held that a certificate of citizenship procured by fraud does not confer citizenship on the applicant.  Thus, the applicant is still subject to charges of removability in an immigration court.  "A certificate of citizenship only provides documentation of United States citizenship for persons who claim to have obtained that status derivatively.  It does not confer United States citizenship but only furnishes recognition and evidence that the applicant has previously obtained such status derivatively, that is, upon the naturalization of a parent or parents.  Thus, the issuance of a certificate of citizenship, like a United States passport, only serves as indicia of citizenship. It is not a grant of United States citizenship.  Because the respondent’s United States citizenship claim was based on fraud, his Certificate of Citizenship is void. Once it was discovered that the respondent’s Certificate of Citizenship had been issued in error, the District Director had an affirmative duty to institute administrative proceedings to cancel it."

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

https://www.justice.gov/eoir/page/file/971036/download

Ninth Circuit Finds that CA Conviction for Fleeing from a Police Officer isn't a CIMT

The Ninth Circuit has determined that a California conviction for fleeing from a police officer is not a crime involving moral turpitude.  This statute, which requires a defendant to act with “willful or wanton disregard,” can be violated by fleeing a police officer while committing “three or more violations that are assigned a traffic violation point count under Section 12810.”  In other words, a person can violate this statute by fleeing a police officer and committing three traffic violations, such as knowingly driving on a suspended license that was revoked because of prior negligent driving.  This conduct, the court concluded, does not entail "a substantial, actual risk of imminent death to another person."  The court further concluded that the statute was not divisible, and as such, never qualifies as a crime involving moral turpitude.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/08/14-70452.pdf

Seventh Circuit Finds that Individual Subject to Reinstated Expedited Order of Removal has no Standing to Challenge Asylum Regulations

The Seventh Circuit has found that an individual subject to a reinstated order of removal, and thus, who is ineligible under the regulations to apply for asylum, has no standing to challenge that regulation because asylum is a discretionary form of relief.  

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D06-08/C:16-3234:J:Manion:aut:T:fnOp:N:1977342:S:0

Ninth Circuit Recognizes the Difficulty of Testifying about Trauma

In an unpublished decision, the Ninth Circuit recognized the difficulty of testifying about trauma and reversed an adverse credibility determination for a victim of domestic violence seeking asylum.  

"[T]he circumstances of Ortiz’s testimony make the asserted inconsistencies only minimally probative of her credibility. At both her reasonable fear interview and at her hearing before the IJ, Ortiz testified without counsel, through an interpreter, and about very traumatic subjects. It is likely that the inconsistencies identified by the BIA were the products not of untruthfulness, but of misunderstanding, mistake, or bad memory.  Considering the record as a whole, the 'totality of the circumstances, and all relevant factors,' we hold that the BIA’s adverse credibility determination was not supported by substantial evidence."

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

https://cdn.ca9.uscourts.gov/datastore/memoranda/2017/06/09/14-73863.pdf