Eighth Circuit finds that Missouri Attempted First Degree Assault Statute is a Crime of Violence under the Sentencing Guidelines

The Eighth Circuit has determined that a conviction under Missouri's attempted first degree assault statute is a crime of violence under the sentencing guidelines.  The court determined that Missouri's definition of attempt is not overbroad, and that the infliction of serious physical injury upon a victim is sufficient to demonstrate that physical force was employed.  Given the similarity between the definition of a crime of violence in the sentencing guidelines and in the immigration context, this decision has persuasive impact on immigration cases.

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

http://media.ca8.uscourts.gov/opndir/17/10/171017P.pdf

Seventh Circuit Finds that Illinois Felon in Possession of a Firearm is Broader than Firearm Aggravated Felony Ground

The Seventh Circuit has determined that Illinois' felon in possession of a firearm is broader than the definition of a firearms-related aggravated felony because Illinois' statute criminalizes possession of pneumatic weapons.  The court further determined that the conviction is indivisible.  As such, a conviction under Illinois' felon in possession of a firearm statute will never qualify as a firearms-related aggravated felony.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D10-12/C:17-1335:J:Easterbrook:aut:T:fnOp:N:2044840:S:0

Seventh Circuit finds that Petitioner in Reinstatement Proceedings is not Eligible for Asylum

The Seventh Circuit overruled its prior decision holding that a petitioner in reinstatement proceedings does not have standing to challenge the statute and regulation that ban him from applying for asylum.  However, in reaching the merits of the claim, the court determined that the statute clearly renders such a petitioner ineligible for asylum.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D10-11/C:16-3234:J:Manion:aut:T:fnOp:N:2043619:S:0

Seventh Circuit Reaffirms that Immigration Judges can Review the Denial of U Visa Waivers

The Seventh Circuit has rejected the Board of Immigration Appeals' decision in Matter of Khan and reaffirmed that Immigration Judges have the authority to review the denial of a waiver of inadmissibility submitted in conjunction with a U visa application.

The decision in Baez-Sanchez v. Sessions can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D10-06/C:16-3784:J:Easterbrook:aut:T:fnOp:N:2041304:S:0

BIA Clarifies the Reliability of Late-Issued Birth Certificates

The Board of Immigration Appeals (BIA) rejected U.S. Citizenship and Immigration Services' (USCIS) unofficial rule that any birth certificate registered more than one year after the subject's birth is insufficient to establish the family ties of the person.  "Even if a birth certificate does not reflect that its registration was contemporaneous with the birth, an adjudicator may conclude that it is sufficiently reliable to establish parentage, depending on the circumstances. In making this determination, the adjudicator should consider all relevant factors, including, but not limited to, (1) information in the FAM regarding the availability and reliability of birth registrations in the country of birth during the time period at issue; (2) the length of time between the birth and the registration; (3) any credible explanation proffered by the petitioner as to the personal, societal, or historical circumstances that prevented a particular birth certificate from being registered contemporaneously, and any evidence in support of that explanation; (4) any credible explanation for why a particular birth certificate was lost or destroyed; (5) any evidence that the parental relationship was independently corroborated prior to the registration of the birth; (6) the length of time between the birth registration and the filing of the visa petition; and (7) information regarding whether the document was based on facts that were contemporaneous with the birth or on facts that were more recently established."

The BIA also enumerated the following of secondary evidence that a petitioner may submit to establish his or her relationship with a sibling beneficiary: (1) governmental, medical, religious, school, financial, employment, insurance, or residential records that reflect the names of the parent(s) and child; (2) family photographs with notations indicating the persons photographed, as well as the date and place they were taken; (3) correspondence, preferably with the original envelope, showing the date written and referring to the parent(s) and child; (4) affidavits by persons who have personal knowledge of the birth; and (5) the results of DNA testing conducted in a prescribed manner, as explained to the petitioner by USCIS. Given the advances in DNA testing in recent years, the USCIS should encourage petitioners to pursue this option, particularly if little other secondary evidence is available.  Secondary evidence that was created contemporaneous with the birth will be the most persuasive.

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

https://www.justice.gov/eoir/page/file/997411/download

Eleventh Circuit Finds that Florida Conviction for Criminal Use of Personal Identification Information is Categorically a CIMT

In an unpublished decision, the Eleventh Circuit has determined that a Florida conviction for criminal use of personal identification information is categorically a crime involving moral turpitude.  "Because the least culpable conduct under § 817.568(2)(a) involves the specific intent to possess personal information with intent to defraud, the BIA reasonably concluded that Petitioner’s offense involves moral turpitude."

The full text of Vlichez-Bello v. Attorney General can be found here: 

http://media.ca11.uscourts.gov/opinions/unpub/files/201616764.pdf

Ninth Circuit Finds that Petitioner's Departure from the US did not Constitute a Valid Waiver of his Right to Appeal

The Ninth Circuit has determined that a petitioner's departure from the United States prior to filing an appeal with the Board of Immigration Appeals (BIA), on its own, does not constitute a valid waiver of his right to appeal.  "[E]ven though the departure-waiver regulation expressly states that an alien’s departure constitutes a waiver of his right to appeal to the BIA, an IJ must inform an alien who requests immediate removal that his departure would constitute a waiver of his right to appeal."  

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/21/14-72172.pdf

TPS Cancelled for Sudan; Extended for South Sudan

U.S. Citizenship and Immigration Services has announced the termination of Temporary Protected Status (TPS) for Sudan and an extension of TPS for South Sudan.

The announcement of termination of TPS for Sudan can be found here: 

https://www.uscis.gov/news/news-releases/temporary-protected-status-sudan-terminate-november-2018

The announcement of the extension of TPS for South Sudan can be found here: 

https://www.federalregister.gov/documents/2017/09/21/2017-20174/extension-of-south-sudan-for-temporary-protected-status

Eighth Circuit Finds that Illinois Burglary Statute is Broader than Generic Definition of Burglary

The Eighth Circuit has determined that Illinois' burglary statute is overbroad as compared to the generic definition of burglary because the Illinois statute includes burglary of detached semitrailers.  Given the similarity between the generic definition of burglary in the criminal and immigration contexts, this decision may have persuasive value in the immigration context.

The full text of United State v. Byas can be found here:

http://media.ca8.uscourts.gov/opndir/17/09/163616P.pdf

BIA Construes Inadmissibility for Material Misrepresentation and Participation in Extrajudicial Killings

The Board of Immigration Appeals (BIA) has clarified the standard for when a misrepresentation is material, and thus, makes a non-citizen inadmissible.  The standard articulated is whether the misrepresentation tends to shut off a line of inquiry that is relevant to the non-citizen’s admissibility and that would predictably have disclosed other facts relevant to his or her eligibility for a visa, other documentation, or admission to the United States.  After the Department of Homeland Security (DHS) meets its burden of proof, the burden shifts to the non-citizen to establish that no proper determination of inadmissibility could have been made.

The BIA also crafted a standard for determining whether a non-citizen had assisted in the extrajudicial killings of others.  The court must consider (1) the nexus between the alien’s role, acts, or inaction, and the extrajudicial killing; and (2) his scienter, meaning his prior or contemporaneous knowledge of the killing.  "[W]e look at whether the alien’s role was material or integral to the killing—or, as the DHS argues, whether the alien’s role 'contributed; to the ultimate harm. We also agree with the Ninth Circuit’s ruling that mere acquiescence or membership in an organization is insufficient to establish culpability."  Direct proof of actual knowledge is not required.  Instead, the non-citizen must have sufficient knowledge that the consequences of his actions may assist in acts of extrajudicial killing. The fact finder may look to direct or circumstantial evidence in the record to determine whether the alien had sufficient knowledge that his conduct may have assisted acts of extrajudicial killing.

The full text of Matter of D-R- can be found here: 

https://www.justice.gov/sites/default/files/pages/attachments/2017/09/14/3902_0.pdf

BIA Affirms that California Robbery is a Theft-Related Aggravated Felony

The Board of Immigration Appeals (BIA) has again determined that a California robbery conviction is categorically a theft-related aggravated felony.  The respondent argued that section 211 is overbroad with respect to the Federal definition of theft because a “taking” under California law requires a perpetrator to carry property away (also known as “asportation”).  The BIA concluded that the definitions of both robbery in section 211 of the California Penal Code and aggravated felony theft in section 101(a)(43)(G) of the Act reach “takings” committed by gaining control over the property of another.  The only difference between the statutes is that section 211 criminalizes a narrower subset of “takings” within the broader universe of those encompassed by the generic offense.  The fact the statute could encompass aiding and abetting a robbery by carrying off property already stolen by the principal does not change the outcome, as aiders and abettors are held liable to the same extent as principals.  

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

https://www.justice.gov/eoir/page/file/995071/download

BIA Finds that Texas Pre-trial Intervention Program Constitutes a Conviction

The Board of Immigration Appeals (BIA) has determined that participation in a Texas pre-trial intervention program constitutes a conviction where the participant stipulated that he committed each charged offense.  The BIA determined that the participant had admitted sufficient facts to sustain a finding of guilt, and that the probation terms imposed as part of the intervention program were a restraint on the participant's liberty.  As such, participation in the program constituted a conviction.  

The full text of Matter of Mohamed can be found here:
https://www.justice.gov/eoir/page/file/994641/download

Ninth Circuit Interprets "Approvable When Filed" Standard for 245(i) Petitions

The Ninth Circuit has determined that USCIS may rely on the denial of a petition to find that the petition was not approvable when filed so long as the denial was on the merits, and not based on a procedural finding or based on circumstances that changed after the petition was filed.  Though USCIS is permitted to reevaluate the merits of a denied petition at the time an applicant is applying for adjustment of status, it is not required to do so.  

The full text of Hsiao v. Hazuda can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/01/15-55676.pdf

Tenth Circuit Finds that Applicant in Reinstatement Proceedings is not Eligible for Asylum

The Tenth Circuit has determined that an applicant in reinstatement proceedings is not eligible for asylum.  The applicant is only eligible to apply for withholding of removal and protection under the Convention Against Torture.

The full text of R-S-C- v. Sessions can be found here:

https://www.ca10.uscourts.gov/opinions/15/15-9572.pdf

Ninth Circuit Finds AZ Class 1 Misdemeanor Domestic Violence Conviction to be a Crime of Domestic Violence

The Ninth Circuit has determined that an Arizona conviction for a class one misdemeanor domestic violence offense is a crime of domestic violence.  The court found that the statute is overbroad because it includes “recklessly causing any physical injury to another person.”  However the court also determined that the statute is divisible.  Because the petitioner was convicted of a class 1 misdemeanor, the Court deduced that he was convicted of intentionally or knowingly causing physical injury, which meets the definition of a crime of violence.  Because the relationships in the statute are coextensive with those found in section 237(a)(2)(E)(i) of the INA, the petitioner's conviction qualifies as a crime of domestic violence.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/14/13-72185.pdf

Fifth Circuit Finds that Texas Evading Arrest Conviction is not Categorically a CIMT

The Fifth Circuit has determined that a Texas conviction for evading arrest is not categorically a crime involving moral turpitude.  The court found the statute to be divisible, but determined that only the prong criminalizing flight in a vehicle involves moral turpitude.  

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

http://www.ca5.uscourts.gov/opinions/pub/15/15-60722-CV0.pdf

Fourth Circuit Finds Applicant Persecuted on Account of Family Ties

The Fourth Circuit has found a woman was persecuted on account of her membership in a well-known, business-owning family.  While the threatening notes from the gang members did not explicitly reference her family ties, the court noted that they the notes must be considered in context: (1) Zavaleta Policiano and her father’s stores, as well as their familial relationship, were well-known in the community; (2) MS-13 threatened Zavaleta Policiano several times by phone; (3) Zavaleta Policiano’s statement that MS-13 “threatened me because my father had left;” and (4) the threats against Zavaleta Policiano began immediately after her father fled to Mexico.  

"When considering the unchallenged record evidence, we are compelled to conclude that Zavaleta Policiano’s familial relationship to her father was “at least one central reason” MS-13 targeted and threatened her.  The evidence shows that MS-13 explicitly threatened to kill Zavaleta Policiano’s father and his family if he did not pay the extortion demands, and that immediately after he fled El Salvador, the gang began threatening Zavaleta Policiano.  The timing of the threats against Zavaleta Policiano is key, as it indicates that MS-13 was following up on its prior threat to target Barrientos’s family if he did not accede to the gang’s demands.  This explanation appears especially probable given the absence of record evidence that Zavaleta Policiano was ever threatened before her father’s departure."

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

http://www.ca4.uscourts.gov/Opinions/Published/161231.P.pdf

Third Circuit Construes Definition of Tier III Terrorist Organization

The Third Circuit has concluded that a group cannot be designated as a Tier III terrorism group unless party leaders authorized the terrorist activity committed by its members.  "Still, the rule we announce today does not always require that the Government produce conclusive proof that the leader(s) of a group explicitly sign off on each individual terrorist act at issue. Instead, as the Board itself has opined in several cases, evidence of authorization may be direct or circumstantial, and authorization may be reasonably inferred from, among other things, the fact that most of an organization’s members commit terrorist activity or from a failure of a group’s leadership to condemn or curtail its members’ terrorist acts."

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

http://www2.ca3.uscourts.gov/opinarch/171056p.pdf

First Circuit Finds that it Might have Jurisdiction to Review Denial of Sua Sponte Motion to Reopen

The First Circuit has determined that it might have jurisdiction review the denial of a sua sponte motion to reopen, if the motion raised constitutional claims.  However, because the Court concluded that the petition for review should be denied on other grounds, it did not conclusively answer this jurisdictional question.

The full text of Ramirez Matias v. Sessions can be found here: http://media.ca1.uscourts.gov/pdf.opinions/16-2474P-01A.pdf

Ninth Circuit Terminates Proceedings Because of Egregious Fourth Amendment Violation

The Ninth Circuit terminated removal proceedings against a petitioner who was seized by Coast Guard officials based solely on his Latino appearance.  Because this was an egregious Fourth Amendment violation and a violation of immigration regulations designed to protected the petitioner from this type of racial profiling, the court determined that termination of proceedings was required.  In light of the regulatory violation, the court declined to determine if the petitioner's previously submitted application for Family Unit benefits was independent evidence of alienage, finding that the violation of the regulation was grounds for termination, regardless of whether there was independent evidence of alienage.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/30/14-71768.pdf

The Ninth Circuit issued an amended decision in this case on September 19, 2018. In it, the Court determined that even though the Coast Guard engaged in egregious violations of the Fourth Amendment, the immigration authorities would have discovered his alienage through his Family Unity benefits application. Nevertheless, the Court held that Mr. Sanchez may be entitled to termination of his removal proceedings without prejudice for egregious regulatory violations. The Court remanded his proceedings to the agency to determine if termination is appropriate. “Applying our test for termination without prejudice, we conclude that Sanchez has made a prima facie showing that the Coast Guard officers’ violation of § 287.8(b)(2) was conscience-shocking and therefore egregious.”

The full text of the amended opinion can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/19/14-71768.pdf