Ninth Circuit Finds that WA Harassment Conviction is Crime of Violence under Sentencing Guidelines

The Ninth Circuit evaluated the sentencing implications of a Washington conviction for harassment.  The court determined that the "harassment statute as a whole is not categorically a crime of violence under § 4B1.2(a)(1), but felony harassment under § 9A.46.020(2)(b)(ii) is divisible from the harassment statute generally. Washington courts have made clear that felony harassment under § 9A.46.020(2)(b)(ii) is a separate crime that requires a unanimous jury to find a threat to kill beyond a reasonable doubt."  The court concluded that "[a] knowing threat of intent to cause bodily injury plainly requires a sufficient mens rea to constitute a threatened use of physical force." 

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/13/16-30181.pdf

Eighth Circuit Finds that MN Misdemeanor Domestic Assault is a Crime of Domestic Violence

The Eighth Circuit has determined that a Minnesota misdemeanor conviction for domestic assault is a crime of domestic violence under section 237(a)(2)(E)(i) of the INA.  The court noted that it had previously held that a conviction under this statute qualified as a violent felony under the Armed Career Criminal Act, which has an almost identical definition as a crime of violence.  Thus, the conviction disqualified the petition from seeking cancellation of removal for non-lawful permanent residents.

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

http://media.ca8.uscourts.gov/opndir/17/12/164014P.pdf

In a second case, the court determined that subsection 2 of the statute is also a crime of domestic violence.

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

http://media.ca8.uscourts.gov/opndir/17/12/162164P.pdf

Eighth Circuit Finds that TX Conviction for Second-Degree Robbery is Crime of Violence and Violent Felony

The Eighth Circuit has determined that a Texas conviction for second-degree robbery is a crime of violence under the federal sentencing guidelines and a violent felony under the Armed Career Criminal Act.  The court determined that a conviction under the statute requires either actual bodily injury or a threat thereof.  Thus, it “has as an element the use, attempted use, or threatened use of violent physical force,” which “is force capable of causing physical pain or injury to another person.”  Given the similar definitions of a crime of violence aggravated felony in the immigration context and a crime of violence under the federal sentencing guidelines, this decision could have persuasive effect in immigration proceedings.

The full text of US v. Hall can be found here:
http://media.ca8.uscourts.gov/opndir/17/12/164479P.pdf

Ninth Circuit Finds that Washington Definition of Aiding and Abetting is Broader than Federal Definition

The Ninth Circuit has determined that a Washington drug trafficking conviction is not an aggravated felony.

The court observed that "the implicit nature of aiding and abetting liability in every criminal charge is well-settled."  Further, federal law requires a mens rea of specific intent for conviction for aiding and abetting, whereas Washington requires merely knowledge.  "Therefore, the Washington drug trafficking law on its face appears to have a more inclusive mens rea requirement for accomplice liability than its federal analogue."  Because a jury need not distinguish between principals and accomplices, the drug trafficking statute is not divisible so far as the distinction between those roles is concerned, so the modified categorical approach may not be applied.

The court noted that "the government makes a pragmatic argument that, under Valdivia-Flores’s proposed application of the categorical approach, 'no Washington state conviction can serve as an aggravated felony at all because of [the] accomplice liability statute' and that such a result 'cannot have been Congress’s intent.' The government here merely joins a chorus of those who have raised concerns about [the] line of decisions' applying the categorical approach, '[b]ut whether for good or for ill, the elements-based approach remains the law.'”  Thus, it would seem that the Ninth Circuit may have implicitly conceded that no Washington state convictions can qualify as an aggravated felonies.  

The full text of US v. Valdivia-Flores can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/07/15-50384.pdf

Ninth Circuit Affirms that CA Drug Statutes are Divisible

The Ninth Circuit has affirmed that California's controlled statutes are divisible, applying the Supreme Court's decision in Mathis v. United States.  Specifically, the court determined that health and safety code section 11351 (possession or purchase for sale of a controlled substance) is divisible with respect to the enumerated controlled substances).  As such, the modified categorical approach can be employed to determine which substance the conviction was premised upon.  

The full text of US v. Murillo-Alvarado can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/04/14-50354.pdf

Ninth Circuit finds that AZ Armed Robbery is not Crime of Violence under Force Clause of Sentencing Guidelines

The Ninth Circuit has determined that the an Arizona conviction for armed robbery does not qualify as a crime of violence under the force clause of the sentencing guidelines because the statute does not necessarily involve violent force.  Given the similarity between the definition of a crime of violence in the immigration context and in the force clause, this decision could have persuasive value in the immigration context.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/29/15-10430.pdf

An amended opinion was subsequently published here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/02/05/15-10430.pdf

In a follow up decision, the court also determined that an Arizona conviction for armed robbery is also not a violent felony under the Armed Career Criminal Act.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/15/17-15869.pdf

Fourth Circuit Assumes that Visa Waiver Entrant Properly Waived Right to Removal Hearing

The Fourth Circuit has determined that when the Department of Homeland Security presents evidence that a petitioner was properly admitted to the United States on the visa waiver program, the court will presume (absent clear evidence showing otherwise) that the government necessarily obtained the entrant’s waiver to challenge any subsequent removal order.

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

http://www.ca4.uscourts.gov/opinions/161274.P.pdf

Fourth Circuit Construes Changed Circumstances for One-Year Filing Deadline

The Fourth Circuit has determined that new facts that provide additional support for a pre-existing asylum claim can constitute a changed circumstance.  An applicant need not demonstrate that he did not have a valid asylum claim prior to the changed circumstance.

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

http://www.ca4.uscourts.gov/opinions/162131.P.pdf

Ninth Circuit Rejects Challenge to Adverse Demeanor Finding

The Ninth Circuit rejected an assertion that an Immigration Judge must make contemporaneous observations on the record of an asylum applicant's demeanor, rather than simply summarizing those findings in a final decision. 

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/27/14-73313.pdf

Seventh Circuit Finds that Categorical Approach does not Apply to Violation of Protective Order

The Seventh Circuit has determined that the categorical approach does not apply to the determination as to whether a petitioner has violated section 237(a)(2)(E)(ii) of the INA (violation of a domestic violence-related protective order) because this section does not require a conviction.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D11-22/C:17-1568:J:Darrow:aut:T:fnOp:N:2066813:S:0

USCIS Terminates TPS for Haiti

U.S. Citizenship and Immigration Services has terminated Temporary Protected Status for Haitians, but allowed an 18-month delay to allow an orderly end to the program: 

The full text of the announcement can be found here: 

https://www.dhs.gov/news/2017/11/20/acting-secretary-elaine-duke-announcement-temporary-protected-status-haiti

BIA Determines that Categorical Approach is Inapplicable to Determination as to Whether Respondent Violated a Protective Order

The Board of Immigration Appeals has determined that the categorical approach is inapplicable to the determination under section 237(a)(2)(E)(ii) of the INA as to whether a respondent has violated a domestic violence-related protective order because no conviction is required under this statute.  Instead, a judge should consider any reliable evidence to determine whether a state court has determined that the respondent violated a protective order.  In so doing, an Immigration Judge should decide (1) whether a State court determined that the alien has engaged in conduct that violates the portion of a protection order that involve[d] protection against credible threats of violence, repeated harassment, or bodily injury and (2) whether the order was issued for the purpose of preventing violent or threatening acts of domestic violence.

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

https://www.justice.gov/eoir/page/file/1012211/download

Tenth Circuit Addresses Municipal Code Theft; inconclusive records of conviction

The Tenth Circuit has determined that theft under the Westminster, Colorado municipal code is overbroad and divisible as compared to the generic definition of a crime involving moral turpitude (CIMT) because it contains four separate crimes, and one subsection does not require the defendant to intend to permanently deprive the owner of the benefits of ownership.  Notably, the Court recognized that the Board of Immigration Appeals has recently updated its definition of theft-related CIMTs, but noted that this updated definition would only apply prospectively to cases initiated after the issuance of the new definition.  

The court then determined that the record of conviction was inconclusive as to which subsection of the theft statute the petitioner was convicted of violating.  However, since he was seeking cancellation of removal, the burden was on him to prove that he had not been convicted of a CIMT, and he could not meet this burden with an inconclusive record.  In so finding, the court joined the Ninth Circuit's recent split from the First Circuit on this issue.

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

https://www.ca10.uscourts.gov/opinions/15/15-9584.pdf

Sixth Circuit Addresses Honor Killings in Jordan

The Sixth Circuit has determined that the Jordanian government is unable to protect women from honor killings, and the government's policy of placing women in protective custody amounts to involuntary incarceration.  This policy demonstrates government acquiescence to torture.  The court remanded to determine if the petitioner had put forward a cognizable particular social group and whether she could safely internally relocate.

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

http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0260p-06.pdf

Ninth Circuit Finds California Hit & Run Statute Divisible

The Ninth Circuit has determined that California's felony hit and run statute is divisible, with some portions covering morally turpitudinous conduct.  Specifically, a conviction resting upon the infliction of injury on another person qualifies as a crime involving moral turpitude under Ninth Circuit case law deeming a non-fraudulent crime involving infliction of injury, intent to injure, or a protected class of victims to be a crime involving moral turpitude.  

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/17/13-72280.pdf

Fifth Circuit Denies Motion to Reopen Because Petitioner Never Provided a Valid Address

The Fifth Circuit has upheld the denial of a motion to reopen based on lack of notice because the petitioner did not provide a valid address to the Department of Homeland Security at the time of issuance of the Notice to Appear, and did not subsequently file a change of address form with the Immigration Court.

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

http://www.ca5.uscourts.gov/opinions/pub/15/15-60847-CV0.pdf

USCIS Terminates TPS for Nicaraguans; Extends TPS for Honduras

U.S. Citizenship and Immigration Services (USCIS) has terminated the Temporary Protected Status (TPS) for Nicaraguans, but has allowed a one year extension to facilitate the orderly end of the program.  USCIS was unable to reach a decision on whether TPS should be extended or terminated for Honduras.  This failure to issue a decision resulted in an automatic six month extension of TPS for Hondurans.

Both of these announcements can be read here:

https://www.dhs.gov/news/2017/11/06/acting-secretary-elaine-duke-announcement-temporary-protected-status-nicaragua-and

Seventh Circuit Construes 237(a)(1)(H) Waiver

The Seventh Circuit has broadly construed the conduct covered by 237(a)(1)(H) waivers, finding that a petitioner found deportable because his conditional residence was terminated is still eligible for the waiver if the termination was related to fraudulent conduct.  In so doing, the Seventh Circuit joins the Ninth Circuit's interpretation of the statute.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D11-06/C:16-3277:J:PerCuriam:aut:T:fnOp:N:2057750:S:0

Ninth Circuit Determines that Wave Through Entry Qualifies as Admission in any Status

The Ninth Circuit has determined that a wave-through entry at the border qualifies as an "admission in any status" for the purpose of cancellation of removal for lawful permanent residents.  The Ninth Circuit holding is in accordance with a prior decision issued by the Fifth Circuit.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/07/13-72643.pdf

BIA Determines that NY Criminally Negligent Homicide is not a CIMT

The Board of Immigration Appeals has determined that a New York conviction for criminally negligent homicide is not a crime involving moral turpitude because crimes committed with criminal negligence generally require neither intent nor a conscious disregard of a substantial and unjustifiable risk; thus, no sufficiently culpable mental state is necessary to commit such an offense.  

The full text of Matter of Tavdidishvili can be found at:

https://www.justice.gov/eoir/page/file/1003846/download