Fifth Circuit Reverses Internal Relocation Finding

The Fifth Circuit has reversed a finding by the agency that an asylum applicant who had experienced past persecution could safely relocate within India.  "Before discussing the record evidence, we first note that the DHS produced no evidence on this issue despite the fact that it bore the burden of proof."  Reliance solely on the general reports submitted by the petitioner was insufficient to demonstrate that there is “a specific area of the country” where the petitioner does not have a well-founded fear of persecution.

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

http://www.ca5.uscourts.gov/opinions/pub/17/17-60320-CV0.pdf

Fifth Circuit Upholds Denial of SIJS Petitions

The Fifth Circuit has upheld the denial of SIJS petitions by USCIS, finding that the Texas state court orders for child support for individuals over the age of 18 were not the equivalent of the necessary “care and custody” rulings required for SIJ status. 

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

http://www.ca5.uscourts.gov/opinions/pub/16/16-51449-CV0.pdf

Fourth Circuit Finds New Jersey Conspiracy Conviction to be Controlled Substance Offense

The Fourth Circuit, applying Matter of Beltran, has found that a New Jersey conviction for conspiracy is a controlled substance violation.  The Court rejected that argument that a conspiracy charge must be analyzed under the categorical approach in the same way as any other conviction, because inchoate crimes suggest the commission of another offense.  Instead, the Immigration Court may consult the record of conviction to determine what was the object of the conspiracy.  In the instant case, the indictment indicated that the petitioner was conviction of conspiracy to distribute marijuana.  As such, his conviction qualifies as a controlled substance offense.

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

http://www.ca4.uscourts.gov/opinions/171213.P.pdf

Third Circuit Addresses Jurisdiction over Denied Nationality Claim

The Third Circuit has determined that when a Circuit Court transfers a nationality claim to a District Court, and the District Court denies that claim, the Circuit Court that typically hears appeals from that District Court has jurisdiction over the appeal of the denied nationality claim, not the Circuit Court which initiated the transfer.

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

http://www2.ca3.uscourts.gov/opinarch/163182p.pdf

Third Circuit Finds that Making a False Report in Connection with a Commodities Transaction is not Fraud-Related Aggravated Felony

Wang pleaded guilty to violating the Commodity Exchange Act by Making a False Report in Connection with a Commodities Transaction in violation of 7 U.S.C. § 6b(a)(1)(B).  The statute rendered it unlawful to "willfully [] make or cause to be made to the other person any false report or statement or willfully to enter or cause to be entered for the other person any false record.”  Wang was ordered deported as a non-citizen convicted of a crime of fraud or deceit results in the loss of more than $10,000 to the victim.   He challenged this finding on the ground that the statute does not require the false report or statement to be material, a necessity for the conviction to qualify as a crime of deceit or fraud.  

The Third Circuit agreed that the term “false statement” does not have a settled common law meaning and “does not imply a materiality requirement."  "The words of the statute do not give us any basis to conclude that materiality is a required element of the offense. Accordingly, for all of these reasons, we will hold that the Board erred by concluding Section 6b(a)(1)(B) requires evidence of materiality."  

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

http://www2.ca3.uscourts.gov/opinarch/164316p.pdf

Second Circuit Addresses Motion to Suppress

The Second Circuit granted a petition for review of a denied motion to suppress, finding that the facts in the record were sufficient to warrant a full hearing on the motion.

"First, the facts set forth in the Form I‐213s and affidavits, if true, show that the troopers and Border Patrol agents went to the house because they were looking for 'known Hispanic migrants.'  The forms say as much.  Even assuming the suspected presence of a fugitive was a reason for the search, the forms suggest that the presence of 'known Hispanic migrants' was also a purpose.  The forms do not, however, identify any specific or articulable facts to believe that anyone in the house ‐‐ other than the suspected fugitive ‐‐ had committed a crime.  Moreover, petitionersʹ affidavits establish that they were questioned only after the troopers had determined that the suspected fugitive was not present; the Government has offered no explanation as to why the agents decided at that point to ask petitioners about their country of citizenship and immigration status ‐‐ other than that the agents were looking for 'Hispanic migrants.'  Hence, petitioners presented substantial evidence that the search was improperly based on race."

"DHS did not provide a copy of the warrant.  The Form I‐213s refer only to a 'felony search warrant,' without specifying where and when it was issued, and without revealing its terms and scope.  The Form I‐213s seem to suggest that the warrant was issued in part because of the suspected presence of 'known Hispanic migrants' in the residence.  If that is the case, we have serious doubts as to the sufficiency of the application for the warrant.  And it is unclear why, if the purpose was to apprehend a fugitive, a 'felony search warrant' was issued rather than an arrest warrant.  Petitioners have also raised a fair question as to whether the real purpose of the search was not to locate a fugitive but to apprehend 'known Hispanic migrants.'  The state troopers were accompanied by not one, but two Border Patrol agents.  While the Form I‐213s state that the agents were present to provide 'translation assistance,' it seems odd that the state troopers did not have their own interpreters and instead imposed on two agents from another, federal, law enforcement agency to provide translation services for one suspected fugitive.  These facts support the notion that law enforcement was targeting Hispanic migrant workers from the start."

The full text of Zuniga-Perez and Hernandez-Campo v. Sessions can be found here:

http://www.ca2.uscourts.gov/decisions/isysquery/5dafcff5-8d16-4520-b439-ae3a0a9c81fe/20/doc/17-996_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5dafcff5-8d16-4520-b439-ae3a0a9c81fe/20/hilite/   

CA Appeals Court Rejects IAC Claim

A California appellate court has found that trial counsel fulfilled his duty to advise the defendant of the immigration consequences of his conviction by providing a boilerplate advisal that mirrors the advisals in section 1016.5 of the California Penal Code.  In addition, the court found that the defendant could not prevail on his argument that counsel failed to negotiate an immigration-neutral disposition because he did not, in his moving papers, identify any immigration-neutral disposition.

The full text of People v. Olvera can be found here:

http://www.courts.ca.gov/opinions/documents/B281767.PDF

TPS Extended for Yemen

The Department of Homeland Security has extended TPS for Yemen for an additional 18 months, expiring on March 3, 2020.

The full text of the announcement can be found here:

https://www.dhs.gov/news/2018/07/05/secretary-nielsen-announcement-temporary-protected-status-yemen

TPS Extended for Somalia

The Department of Homeland Security has extended TPS for Somalia for an additional 18 months, expiring on March 17, 2020.

The full text of the announcement can be found here: 

https://www.dhs.gov/news/2018/07/19/secretary-homeland-security-kirstjen-m-nielsen-announcement-temporary-protected

BIA Addresses Duress Defense to Persecution of Others

The BIA has determined that an applicant who is subject to being barred from establishing eligibility for asylum or withholding of removal based on the persecution of others may claim a duress defense.  The requirements for the defense are: (1) the applicant acted under an imminent threat of death or serious bodily injury to himself or others; (2) he reasonably believed that the threatened harm would be carried out unless he acted or refrained from acting; (3) he had no reasonable opportunity to escape or otherwise frustrate the threat; (4) he did not place himself in a situation in which he knew or reasonably should have known that he would likely be forced to act or refrain from acting; and (5) he knew or reasonably should have known that the harm he inflicted was not greater than the threatened harm to himself or others.  The initial burden is on the DHS to show evidence that indicates that the alien assisted or otherwise participated in persecution.  Once the DHS meets its burden, the burden shifts to the alien to show by a preponderance of the evidence that the persecutor bar does not apply either because he did not engage in persecution or because he acted under duress.

Regarding the DHS’s initial burden of proof to show that the alien assisted or otherwise participated in persecution, an adjudicator must assess:  (1) the nexus between the alien’s role, acts, or inaction and the persecution; and (2) the alien’s scienter, meaning his prior or contemporaneous knowledge of the persecution.  

In the instant case, the BIA determined that neither the applicant's forced conscription nor his assignment to guard duty meet the high standard for a duress defense.  "The applicant testified that when he disobeyed orders to render assistance to prisoners, he received verbal reprimands from his superiors. Thus, the threats of death he received should he disobey orders, when viewed in context, did not constitute the imminent threat of death or serious bodily injury required to meet the standard of duress."  The BIA also determined that the applicant had the opportunity to escape before committing the acts of persecution.  "The applicant testified that he could not leave the military base, but he eventually escaped through a weak spot' and walked through the jungle to his friend’s home."  

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

https://www.justice.gov/eoir/page/file/1075801/download

Ninth Circuit Rejects Void for Vagueness Challenge to CIMTs

The Ninth Circuit has rejected a void-for-vagueness challenge to the phrase "crime involving moral turpitude."  The Court deemed itself bound by the Supreme Court's decision in Jordan v. DeGeorge, though it recognized that "later Supreme Court cases cast some doubt on its general reasoning."  The Court rejected the Government's argument that the void-for-vagueness doctrine cannot apply to any ground of inadmissibility.  

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/17/15-70759.pdf

Ninth Circuit Addresses Scope of Remand from BIA

The Ninth Circuit has affirmed that on remand from the BIA to the IJ, the BIA only retains jurisdiction if it does two things: (1) expressly retains jurisdiction, and (2) qualifies or limits the scope of remand.  If the BIA fails to do either of these things, the scope of the remand is general and the IJ may reconsider any of his or her prior decisions.  In the instant case, the BIA remanded for the IJ to consider protection under the Convention Against Torture, but did not state anything about retaining jurisdiction.  On remand, the IJ reversed his previous denial of asylum.  The BIA reversed, stating the IJ had exceeded the scope of remand.  Ultimately, the case reached the Ninth Circuit, who disagreed that the IJ had exceeded the scope of the BIA's remand order.  The court emphasized that the "BIA only retains jurisdiction when remanding to an IJ if its remand order expressly retains jurisdiction and qualifies or limits the scope of remand to a specific purpose."  Though the BIA limited the scope of remand to a specific purpose in this case by stating that it was remanding “for further consideration of the respondent’s claim under the Convention Against Torture,” its remand order nowhere mentioned jurisdiction, much less expressly retained it.  Thus, the IJ had the authority to reconsider his decision.

The full text of Bermudez-Ariza v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/25/15-72572.pdf

Eighth Circuit Finds Missouri Drug Statutes Divisble

The Eighth Circuit, in a pair of decisions addressing Missouri convictions for possession of a controlled substance and possession of a controlled substance with intent to deliver, has determined that Missouri's drug statutes are divisible and that the identity of the drug is an element of these statutes.  As such, the modified categorical approach can be employed to determine the identity of the substance.  

The decision in Bueno-Muela v. Sessions can be found here: 

http://media.ca8.uscourts.gov/opndir/18/06/171267P.pdf

The decision in Lemus Martinez v. Sessions can be found here:

http://media.ca8.uscourts.gov/opndir/18/06/164242P.pdf

Eighth Circuit Finds that MN Second Degree Assault is Violent Felony

The Eighth Circuit has determined that a Minnesota conviction for second-degree assault is a violent felony even though the statute does not require the defendant to cause actual bodily harm but only fear of bodily harm.  The Court also rejected a void-for-vagueness challenge to the force clause of the Armed Career Criminal Act.

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

http://media.ca8.uscourts.gov/opndir/18/07/171527P.pdf

Eighth Circuit Finds that Iowa Domestic Abuse Assault is a Crime of Violence

The Eighth Circuit determined that Iowa's domestic abuse assault statute is divisible between assault with a dangerous weapon and assault with intent to inflict serious injury.  It further determined that assault is divided into three subsections: 1) assault intended to cause pain or injury; 2) assault intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive; and 3) assault involving a firearm.  Assault with intent to inflict serious injury under the first definition of assault qualifies as a crime of violence.

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

http://media.ca8.uscourts.gov/opndir/18/07/171274P.pdf

Eighth Circuit Deems MN 3rd Degree Assault a Violent Felony

The Eighth Circuit has determined that a Minnesota conviction for third-degree assault qualifies as a violent felony because it requires the use, attempted use, or threatened use of force capable of causing physical pain or injury.  

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

http://media.ca8.uscourts.gov/opndir/18/07/172131P.pdf

Seventh Circuit Addresses Prejudice Standard for Ineffective Assistance of Counsel

The Seventh Circuit reversed the denial of a motion to reopen based on ineffective assistance of counsel.  The BIA indicated that the evidence presented in support of the IAC claim was not likely to have changed the outcome of the case.  The Seventh Circuit that the BIA erroneously applied a standard of probability, rather than possibility.  "The Board’s 'would likely have altered the outcome' language suggests that it was requiring Sanchez to show it was more likely than not (i.e., a probability of more than 50 percent) that the outcome of the removal proceeding would have been favorable to Sanchez but for his counsel’s alleged missteps. But in actuality, Sanchez needed only to establish that he would have had a reasonable chance of prevailing had his counsel provided him with competent representation."  

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-05/C:17-1673:J:Rovner:aut:T:fnOp:N:2181672:S:0

Seventh Circuit Addresses District Court Jurisdiction to Review Denied Affirmative Asylum

The Seventh Circuit has reviewed an Administrative Procedures Act challenge to a denial of asylum by the Asylum Office.  In this case, the petitioner was in valid TPS status at the time of the adjudication of his asylum application, and as such, he was not placed in removal proceedings by the Department of Homeland Security, and could not renew his asylum application before an Immigration Judge.  The Seventh Circuit held that the District Court was not barred by any jurisdiction-stripping statute from taking jurisdiction over the challenge.  Nevertheless, because the petitioner could ultimately seek review of his asylum application through an Immigration Court proceeding (should the Department of Homeland Security place him in removal proceedings), the decision of the asylum office is not a final agency action.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-13/C:17-3377:J:Ripple:aut:T:fnOp:N:2185998:S:0

Fifth Circuit Discusses Standard of Review for IAC and Equitable Tolling

The Fifth Circuit has determined that a request for equitable tolling, insofar as it is related to a claim of ineffective assistance of counsel, is a question of law over which it has jurisdiction even if a petitioner has been convicted of a controlled substance violation.  The Court noted that "[w]e assume that a valid claim of IAC would constitute an 'extraordinary circumstance [that] stood in his way and prevented timely filing.'”  

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

http://www.ca5.uscourts.gov/opinions/pub/17/17-60230-CV0.pdf

Fourth Circuit Finds that Court Costs are not Punishment

The Fourth Circuit has determined that a "prayer for judgment" in North Carolina, when accompanied only by an order to pay court costs, does not constitute a conviction for immigration purposes because these court costs do not constitute a punishment or penalty.  "Because a punishment or penalty must be proportionate to a defendant’s wrongdoing, courts generally refuse to treat a monetary assessment as a punishment or penalty when the assessment solely reflects the costs of compensating a private party or the government for losses resulting from the wrongdoing."  Congress intended the words "penalty" and "punishment" in the definition of a conviction to refer to "discretionary acts of judgment as opposed to the broader set of ministerial or administrative decrees or assessments a court may impose."  "This requires a judge to order a punitive sanction—i.e., one that is intended to discipline or deter and is proportionate to the underlying offense conduct."

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

http://www.ca4.uscourts.gov/Opinions/171519.P.pdf