Eighth Circuit finds that MO Second Degree Assault is a Crime of Violence

The Eighth Circuit has concluded that a conviction for second-degree assault in Missouri, which forbids recklessly causing physical injury to another person by means of discharge of a firearm, is a crime of violence under the federal sentencing guidelines.  The Court concluded that reckless conduct causing injury to another by use of a firearm constitutes a use of force under the guidelines.  Given the similarity between the definition of a crime of violence under the guidelines and in the immigration context, this decision could have persuasive impact in immigration proceedings.

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

http://media.ca8.uscourts.gov/opndir/18/01/164328P.pdf

Eighth Circuit finds that MN Robbery Conviction is a Violent Felony

The Eight Circuit has determined that a Minnesota robbery conviction is a violent felony under the force clause of the Armed Career Criminal Act.

"Minn. Stat. § 609.24 minimally requires that a defendant 'threaten[] the imminent use of force' in order to either 'compel acquiescence' or 'to overcome the person’s resistance or powers of resistance . . . . While a threat on its own may not present the requisite degree of force, a statute that contains as an element a threat of violent force will. Minnesota’s express requirement that a defendant communicate a threat to 'overcome . . . resistance' or to 'compel acquiescence' necessarily implicates such violent force."

Given the similarity between the force clause and a crime of violence in the immigration context, this case could have persuasive force in immigration proceedings.

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

http://media.ca8.uscourts.gov/opndir/18/01/171023P.pdf

Eighth Circuit finds that OK Voluntary Manslaughter Conviction is a Violent Felony

The Eighth Circuit has determined that an Oklahoma conviction for voluntary manslaughter qualifies as a violent felony under the residual clause of the federal sentencing guidelines.  Given the similarity between the residual clause and the definition of a crime of violence in 8 USC 16(b), this case could have persuasive impact on immigration proceedings in circuits that have not struck down 8 USC 16(b) as unconstitutionally vague.

The full text of US v. Steward can be found here:
http://media.ca8.uscourts.gov/opndir/18/01/163886P.pdf  

Sixth Circuit Permits Reopening of Family-Based Asylum Claim

The Sixth Circuit has overturned the denial of a motion to reopen premised on a family-based asylum claim.  

"But the only way that the BIA could have deemed that connection 'unclear' is if it had discredited Trujillo Diaz’s father’s declaration. His declaration explicitly links his kidnapping (and the threats of harm to Trujillo Diaz) to his and his daughter’s familial ties to his son, who refused to join the cartel. In his declaration, he described the Knights Templar members’ statements that revealed the correlation between his kidnapping and his son’s refusal to join the La Familia cartel: (1) they wanted to find Omar Daniel because they were angry that he had refused to join the cartel and fled to the United States; (2) they knew Trujillo Diaz’s father was the father of Omar Daniel and Trujillo Diaz; and (3) they would hurt the rest of his family if they 'could not get their hands on Omar Daniel and Maribel.' Trujillo Diaz’s father did not speculate or draw conclusions as to the Knights Templar’s motivation; he relayed precisely what they told him. Thus, the BIA discredited Trujillo Diaz’s evidence of familial motivation. And because it dismissed this motivation, it determined that Trujillo Diaz’s fear was not of being targeted because she was part of a particular social group, but rather just a general fear of crime. The BIA provided no other rationale for rejecting Trujillo Diaz’s prima facie case of eligibility for asylum and withholding of removal under the INA."

The full text of Trujillo Diaz v. Sessions:

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0012p-06.pdf

Fifth Circuit Rejects Lack of Notice MTR

The Fifth Circuit has rejected a petitioner's claim that she received legally insufficient notice of her court hearing.  The envelope bearing the notice of hearing was returned to the Court with a notation that the petitioner did not live at that address.  The Court rejected the argument that delivery of a notice of hearing is improper unless signed by the alien or a responsible person at the alien’s address.  "There is no requirement in our caselaw that an alien (or a responsible member of the alien’s household) actually view or sign a notice of hearing delivered to the address provided by the alien." 

The full text of Garcia Nunez v. Sessions:

http://www.ca5.uscourts.gov/opinions/pub/16/16-60140-CV0.pdf

The Fifth Circuit Rejects a Derivative Citizenship Claim Based on Legitimation under Mexican Law

The Fifth Circuit has rejected a derivative citizenship claim.

The statute governing the petitioner's claim to derivative citizenship is the version of the INA in place at the time of his birth.  The INA dictates that a child born out of wedlock to a non-citizen mother and a citizen father can establish derivative citizenship “if the paternity of such child is established while such child is under the age of twenty-one years by legitimation.” The INA also dictates that his claim to legitimation is governed by the laws of Tamaulipas, Mexico—where he resided as a child. Even if he can prove his legitimation under Tamaulipan law, the INA imposes an additional hurdle for claiming derivative citizenship: legitimation must have occurred before Gonzalez–Segura turned twenty-one years old. 

The Board of Immigration Appeals defines “legitimation” as “the act of putting a child born out of wedlock in the same legal position as a child born in wedlock.” Legitimation requires a formal act. A child may be legitimated under the laws of either the child’s or the father’s domicile—whether in the United States or elsewhere.

The 1961 Civil Code of Tamaulipas (“CCT”) establishes how a father can legitimate a child who was born out of wedlock.  CCT Article 370 provides that a child may be legitimated by either (1) the father’s voluntary acknowledgment or (2) a court judgment declaring paternity. CCT Article 379 provides five ways that voluntary acknowledgement of a child born out of wedlock can occur: 1) In the birth certificate before the Civil Registry official; 2) By special acknowledgement proceeding before the same official; 3) By a notarial instrument; 4) By a will; and 5) By direct and express judicial confession.

The petitioner argued that he satisfied the CCT legitimation requirements in three ways. First, his amended birth certificate qualifies as a voluntary acknowledgment of his paternal lineage. Second, the 2007 ruling by the Tamaulipas court that ordered the rectification of his original birth certificate qualifies as a court judgment declaring paternity. Third, his father’s 1970 holographic will qualifies as a voluntary acknowledgement of paternity.

Only the amended birth certificate and the 2007 judicial decree are valid forms of legitimation under Tamaulipan law. The Court held that the petitioner cannot rely on these otherwise valid forms of legitimation for his claim to derivative citizenship because the legitimation occurred after he had turned twenty-one years old.

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

http://www.ca5.uscourts.gov/opinions/pub/16/16-41413-CV0.pdf

Fifth Circuit Construes Reinstatement Provision

The Fifth Circuit has rejected an argument that the reinstatement provision does not bar reopening of a removal order if the motion to reopen is filed before notice of the reinstatement is served on the petitioner.

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

http://www.ca5.uscourts.gov/opinions/pub/16/16-60179-CV0.pdf

Fifth Circuit Addresses Breadth of Oklahoma Drug Statutes

The Fifth Circuit has addressed whether Oklahoma drug convictions are categorically controlled substance offenses.  The breadth of the Oklahoma schedules facially extends beyond those substances that are controlled under federal law. Specifically, the Oklahoma schedules contain at least two substances (Salvia Divinorum and Salvinorin A) that are not included in any federal schedule.  The court declined to assess whether the Oklahoma statute is divisible, or whether the modified categorical approach applies.  However, the court rejected the petitioner's argument because he provided no case law to show that Oklahoma actually prosecutes offenses involving Salvia Divinorum and Salvinorin A, and thus, had not established a realistic probability that the petitioner's conviction involved substances not included in the Controlled Substances Act.

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

http://www.ca5.uscourts.gov/opinions/pub/16/16-60211-CV0.pdf

Fifth Circuit Addresses the Role of PTSD in Credibility Determinations

The Fifth Circuit has determined that an Immigration Judge need not consider a petitioner's post-traumatic stress disorder when evaluating credibility, unless the petitioner has been deemed incompetent or have a mental illness or serious cognitive disability that affects their ability to provide testimony in a coherent, linear manner. 

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

http://www.ca5.uscourts.gov/opinions/pub/16/16-60059-CV0.pdf

Fourth Circuit Finds Applicant Established Persecution on of Family Ties

The Fourth Circuit has reaffirmed its family-based asylum case law.

"For three reasons, we are compelled to conclude that the IJ and the Board erred in finding that Salgado-Sosa has not shown that his kinship ties are at least one central reason for the harm he fears. First, the record manifestly establishes that MS-13 threatened Salgado-Sosa on account of his connection to his stepfather and to his family. Salgado-Sosa testified, for instance, that MS-13 attacked him because of his stepfather Merez-Merlo’s conflict with the gang, not his own. Merez-Merlo similarly testified that his refusal to give MS-13 what they wanted, which was the war tax, led the gang to repeatedly threaten to kill his wife and son. Other evidence also corroborates the centrality of family ties. For example, the family’s long-time neighbor submitted an affidavit averring that the reason why the gang members want to hurt Salgado-Sosa is that he defended his stepfather from the gang members when they assaulted the family."

"Second, that Salgado-Sosa’s anticipated harm is on account of membership in his family follows from the IJ’s own factual findings, adopted by the BIA. The IJ herself determined that the central reasons for Salgado-Sosa’s feared persecution are his stepfather’s refusal to pay the gang and revenge on the family for resisting MS-13’s extortion."  "There is no meaningful distinction between whether Salgado-Sosa was threatened because of his connection to his stepfather, and whether Salgado-Sosa was threatened because MS-13 sought revenge on him for an act committed by his stepfather."

"Third and finally, the BIA’s decision improperly focused on whether Salgado-Sosa’s family was persecuted on account of a protected ground, rather than on whether Salgado-Sosa was persecuted because of a protected ground – here, his relationship to his family. The critical fact, for the BIA, was that the motive for the attacks on Salgado- Sosa’s family was financial gain or personal vendettas, neither of which is itself a protected ground under the INA.  But as we have explained before, it does not follow that if Salgado-Sosa’s family members were not targeted based on some protected ground, then Salgado-Sosa could not have been targeted based on his ties to his family."

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

http://www.ca4.uscourts.gov/Opinions/161594.P.pdf

First Circuit Remands for BIA to Reexamine if MA Arson Conviction is a CIMT

The First Circuit has remanded a case to the Board of Immigration Appeals (BIA) to reconsider its finding that a Massachusetts arson conviction is categorically a crime involving moral turpitude.  The court noted that the statute includes burning one's own property.  The court also noted that Massachusetts law does not require evil intent nor a corrupt mindset for an arson conviction.

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

http://media.ca1.uscourts.gov/pdf.opinions/17-1310P-01A.pdf

Third Circuit Finds that Georgia Forgery Conviction is an Aggravated Felony

The Third Circuit has determined that Georgia's forgery statute, though not a perfect match to the generic definition of forgery, covers conduct with a sufficient logical connection to forgery to be deemed a crime related to forgery for aggravated felony purposes.  The court acknowledged that its decision creates a circuit split with the Ninth Circuit.

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

http://www2.ca3.uscourts.gov/opinarch/163816p.pdf

First Circuit Rejects Particular Social Group Comprised of "Guatemalan women who try to escape Systemic and Severe Violence but who are Unable to Receive Official Protection"

The First Circuit has rejected the proposed particular social group of "Guatemalan women who try to escape systemic and severe violence but who are unable to receive official protection."  The court found that the group was neither particularized nor socially distinct.

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

http://media.ca1.uscourts.gov/pdf.opinions/17-1803P-01A.pdf

First Circuit Denies Family-Based Asylum Case

The First Circuit has affirmed the denial of a family-based asylum case, in which the petitioner alleged she was extorted because her family ties to the father of her child.  The court, however, affirmed the agency's finding that all employees at the the partner's store (including the petitioner) were extorted, undermining the petitioner's assertion that she was actually targeted because of her family ties.

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

http://media.ca1.uscourts.gov/pdf.opinions/17-1201P-01A.pdf

BIA Addresses "Wave Through" Admissions and LPR Cancellation Eligibility

The Board of Immigration Appeals (BIA) has determined that in the Fifth and Ninth Circuits, a wave through admission qualifies as "an admission in any status" for the purposes of cancellation of removal for lawful permanent residents.  However, outside the Fifth and Ninth Circuits, applicants will need prove that they were admitted in a lawful status to meet the eligibility criteria for cancellation.  

The full text of Matter of Castillo Angulo can be found here:

https://www.justice.gov/file/1029381/download

BIA Addresses Formulation of Particular Social Groups

The Board of Immigration Appeals (BIA) has determined that when an asylum or withholding of removal applicant "raises membership in a particular social group as the enumerated ground that is the basis of her claim, she has the burden to clearly indicate the exact delineation of any particular social group(s) to which she claims to belong. While it is an applicant’s burden to specifically delineate her proposed social group, the Immigration Judge should ensure that the specific group being analyzed is included in his or her decision. If an applicant is not clear as to the exact delineation of the proposed social group, the Immigration Judge should seek clarification.”  The BIA suggested that a motion to remand based on the articulation of a new social group for the first time on appeal might be appropriate if it is based on new, previously unavailable material evidence.

The full text of Matter of W-Y-C- & H-O-B- can be found here:

https://www.justice.gov/eoir/page/file/1027451/download

BIA Addresses DUIs in the Context of Bond Proceedings

The Board of Immigration Appeals (BIA) has determined that driving under the influence is a significant adverse factor in bond proceedings.  Furthermore, family and community ties generally do not mitigate a bond applicant’s dangerousness.  The BIA did acknowledge that "there may be a situation where a family member’s or other’s influence over a young respondent’s conduct could affect the likelihood that he would engage in future dangerous activity."

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

https://www.justice.gov/eoir/page/file/1030706/download

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