Attorney General Certifies Case to Himself Regarding Administrative Closure

The Attorney General has certified Matter of Castro-Tum, an unpublished case dealing with the docket control mechanism known as administrative closure, to himself for review.  He also invited amicus briefs addressing the following questions:

1. Do Immigration Judges and the Board have the authority, under any statute, regulation, or delegation of authority from the Attorney General, to order administrative closure in a case? If so, do the Board’s decisions in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), articulate the appropriate standard for administrative closure?

2. If I determine that Immigration Judges and the Board currently lack the authority to order administrative closure, should I delegate such authority? Alternatively, if I determine that Immigration Judges and the Board currently possess the authority to order administrative closure, should I withdraw that authority?

3. The regulations governing removal proceedings were promulgated for “the expeditious, fair, and proper resolution of matters coming before Immigration Judges.” 8 C.F.R. § 1003.12 (2017). Are there any circumstances where a docket management device other than administrative closure—including a continuance for good cause shown (8 C.F.R. § 1003.29 (2017)), dismissal without prejudice (8 C.F.R. § 1239.2(c) (2017)), or termination without prejudice (8 C.F.R. § 1239.2(f))—would be inadequate to promote that objective? Should there be different legal consequences, such as eligibility to apply for a provisional waiver of certain grounds of inadmissibility under the immigration laws or for benefits under federal or state programs, where a case has been administratively closed rather than continued?

4. If I determine that Immigration Judges and the Board do not have the authority to order administrative closure, and that such a power is unwarranted or unavailable, what actions should be taken regarding cases that are already administratively closed?

The full text of Matter of Castro Tum can be found here:

https://www.justice.gov/eoir/page/file/1022366/download

Ninth Circuit Addresses Violation of Right to Counsel

The Ninth Circuit has determined that a petitioner who alleges a violation of his right to counsel must demonstrate that he was prejudiced by the violation.  The court declined to accord a presumption of prejudice in such a situation.  With respect to the petitioner, the court noted that "he might have been able to show prejudice had he attempted to contest the facts rendering him removable yet been foreclosed from doing so by virtue of his earlier un-counseled admissions. But he has never attempted to contest the charges against him, even after having an opportunity to consult with counsel, so he cannot contend that his un-counseled admissions cost him the chance to raise plausible grounds for contesting removal. Nor can he claim prejudice by virtue of his un-counseled waiver of the right to request withholding of removal, since he was ultimately given a reasonable fear interview and allowed to make the case that he should be granted withholding of removal."  

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/10/14-71747.pdf

Ninth Circuit Finds that Nevada Conspiracy and Drug Statutes are Overbroad

The Ninth Circuit has determined that Nevada's conspiracy drug statutes are both overbroad and indivisible as compared to the federal generic definition of conspiracy and the Controlled Substances Act. 

With respect to the conspiracy statute, the court noted that Nevada law does not require any overt act in furtherance of the conspiracy to support a conviction. 

With respect to the drug statute, the Nevada statute covers “any drug which may not be lawfully introduced into interstate commerce under the Federal Food, Drug and Cosmetic Act."  The FDCA prohibits countless activities that are completely unconnected to controlled substance, and thus, not prohibited by the Controlled Substances Act.  In addition, although the Nevada statute lists multiple means of violation, i.e., possessing, procuring, or manufacturing, because the jurors need not agree on the means of violation, the statute must still be regarded as indivisible,  

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/05/13-74324.pdf

The Ninth Circuit issued an amended decision in this matter on September 1,1, 2018, in which it reiterated its removability finding, but held that this finding mooted out any issue as to the petitioner’s eligibility for cancellation of removal:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/11/13-74324.pdf

Ninth Circuit Reverses Agency's Competency Finding

The Ninth Circuit has reversed the agency's finding that a detained immigrant was competent to participate in his immigration proceedings.  In particular, the Court expressed concern that the Department of Homeland Security did not provide updated or complete medical records to the Court.  

"Importantly, neither the IJ nor the BIA recognized that, as DHS was providing ongoing medical care to Calderon as a detainee, it necessarily possessed additional relevant, but not introduced, medical records. There were, indeed, specific indications that there were later medical records not provided to the IJ or the BIA that could have reflected a deterioration in Calderon’s condition."

"We note that, as Calderon argues, DHS may have violated an order implementing the permanent injunction in Franco-Gonzalez by failing to provide Calderon’s updated mental health information to the IJ and BIA.  However, because Calderon’s complete mental health information was not introduced into the record, we are unable to determine if Calderon was a member of the Franco-Gonzalez class, and thus cannot determine if the order was violated."

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/03/16-70225.pdf

Ninth Circuit Construes Adam Walsh Act

The Ninth Circuit has determined that the Adam Walsh Act, which prohibits certain US citizens who have been convicted of crimes against children from sponsoring their non-citizen relatives for immigration status, can be applied retroactively to petitions filed before the effective date of the Act, if the petitions were still pending when the Act came into effect.

The full text of Gebhardt v. Nielsen can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/09/15-56072.pdf

Eighth Circuit finds that Iowa Attempted Murder Conviction is a Crime of Violence

The Eighth Circuit has determined that an Iowa conviction for attempted murder is a crime of violence.  In so doing, the court rejected the defendant's argument that the statute, which criminalizes any act that the defendant believes will set into motion a chain of events causing the death of another, was overbroad because it encompassed acts of omission.  The court determined that even an act of omission under the statute involved the use of force.  Given the similarity between the definition of a crime of violence in the sentencing context and the immigration context, this decision could have persuasive value in the immigration context.

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

http://media.ca8.uscourts.gov/opndir/18/01/164039P.pdf

Eighth Circuit Finds that Minnesota Second and Third Degree Burglary are not Violent Felonies

The Eighth Circuit has determined that Minnesota's second- and third-degree burglary statutes are overbroad as compared to the generic definition of burglary because they do not require the defendant to have the intent to commit a crime at the moment of the unprivileged entry.  The court also determined that the statutes are indivisible.  Given the similarity between the generic definition of burglary in the criminal and immigration contexts, this decision could have persuasive value in the immigration context.

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

http://media.ca8.uscourts.gov/opndir/18/01/164308P.pdf

Eighth Circuit Reaffirms that Missouri Second-Degree Assault Statute is Divisible

The Eighth Circuit has reaffirmed that Missouri's second-degree assault statute is divisible, even in light of the Supreme Court's decision in Mathis v. United States.

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

http://media.ca8.uscourts.gov/opndir/18/01/164163P.pdf

USCIS Resumes Processing DACA Renewals

USCIS has resumed processing of DACA renewals pursuant to a federal court order.  DACA recipients are strongly encouraged to consult with a licensed immigration attorney to determine how this court order affects them.

The official USICS announcement can be found here:

https://www.uscis.gov/humanitarian/deferred-action-childhood-arrivals-response-january-2018-preliminary-injunction

DHS Cancels TPS for El Salvador

The Department of Homeland Security has cancelled Temporary Protected Status for El Salvador, effective on September 9, 2019.  Salvadoran citizens with TPS are strongly encouraged to consult with a licensed immigration attorney to determine if they qualify for other immigration status in the United States.  

The full text of the cancellation announcement can be found here:

https://www.dhs.gov/news/2018/01/08/secretary-homeland-security-kirstjen-m-nielsen-announcement-temporary-protected

BIA Declines to Apply Res Judicata; Deems MI Conviction for First Degree Home Invasion to be Burglary Aggravated Felony

The Board of Immigration Appeals (Board) has determined that the doctrine of res judicata does not prevent the Department of Homeland Security (DHS) from bringing a new removable proceeding (with a new charge of removability) based on a criminal conviction that did not sustain the charge of removability in a prior proceedings.  In the instant case, the DHS had initially charged the respondent with a conviction for a crime of violence aggravated felony based on a Michigan conviction for first-degree home invasion.  Due to intervening case law regarding the definition of a crime of violence, those proceedings were terminated.  The DHS then re-charged the respondent with a burglary aggravated felony based on the same conviction.  The Board determined that res judicata did not bar the second proceedings, though it also recognized that its decision was in conflict with Ninth Circuit jurisprudence.  The Board also determined that a Michigan conviction for first-degree home invasion is categorically a burglary aggravated felony.

The full text of Matter of Jasso Arangure can be found here:

https://www.justice.gov/eoir/page/file/1021376/download

Ninth Circuit Finds that Protest of Eminent Domain is a form of Political Opinion

The Ninth Circuit has determined that a man who protested the Chinese government's eminent domain policy, and who was, as a result, beaten and accused of being anti-government, was persecuted on account of his political opinion.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/18/14-71113.pdf

An amended opinion was subsequently filed and can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/02/15/14-71113.pdf

Ninth Circuit Finds that Carjacking Conviction is a Crime of Violence

The Ninth Circuit has determined that a federal conviction for carjacking is a crime of violence under the federal sentencing guidelines.  "To be guilty of carjacking 'by intimidation,' the defendant must take a motor vehicle through conduct that would put an ordinary, reasonable person in fear of bodily harm, which necessarily entails the threatened use of violent physical force.  It is particularly clear that 'intimidation' in the federal carjacking statute requires a contemporaneous threat to use force that satisfies Johnson because the statute requires that the defendant act with “the intent to cause death or serious bodily harm.'”

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/12/16-35583.pdf

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