The Department of Homeland Security has extended Temporary Protected Status for Syrians. The new expiration date is March 31, 2021.
The full text of the announcement can be found here:
The Third Circuit has determined that the exclusionary rule was appropriate to apply to constitutional violations committed by a police officer. The officer unlawfully prolonged a traffic stop to interrogate the occupants of a van about their immigration statuses. The court initially held that the exclusionary rule is not generally available in removal proceedings where state or local law officers have violated the Fourth Amendment.. However, an egregious or a widespread Fourth Amendment violation would be sufficient to trigger the application of the exclusionary rule in removal proceedings when the misconduct was committed by state or local law enforcement.
“First, as we determined above, Macke’s extension of the stop was unreasonable and in violation of the Fourth Amendment. Second, Petitioners’ allegations, if true, may show an egregious Fourth Amendment violation that would warrant application of the exclusionary rule because, as noted above, we specifically stated in Oliva-Ramos that ‘whether any seizures or arrests were based on race or perceived ethnicity’ was a consideration in determining whether an egregious Fourth Amendment violation had occurred. Through their own declarations and the declarations of other passengers, Petitioners claim that Macke detained them and ordered them to travel to the rest area because they “all look Hispanic.” Although the Government’s Forms I-213 assert that Petitioners ‘claimed to be’ citizens of other countries in their interactions with Macke, the declarations submitted by Petitioners simply state that they “did not have anything to give him” in response to his request for ‘immigration papers, work permit, visa, passport, and ID.’ In fact, Macke’s request, as alleged by Petitioners, supports their claim that Macke continued the stop because of the passengers’ Hispanic appearance. His demand for this type of documentation, prior to any interaction with the passengers in the rear of the van, shows an assumption on his part that the Petitioners and other passengers were not United States citizens, a conclusion he could have only come to based on their appearance.”
“Petitioners aver that they were refused water and food and were not allowed to use the bathroom or turn on the van’s air conditioning while they were detained by Macke. Depending on the actual evidence adduced, these facts could be considered evidence of coercion or use of force as part of the totality of the circumstances test.”
The full text of Yoc-Us v. Attorney General can be found here:
In a departure from prior precedent, the Third Circuit has determined that the particularly serious crime bar, as applied in both the asylum and withholding of removal contexts, includes non-aggravated felonies. The court concluded that in the asylum context, (1) aggravated felonies are a subset of offenses that constitute particularly serious crimes; (2) the Attorney General has the authority to designate other offenses as per se particularly serious; and (3) the Attorney General retains the authority, through a case-by-case evaluation of the facts surrounding an individual alien’s specific offense, to deem that alien to have committed a particularly serious crime. Similarly, the withholding context, aggravated felonies are a subset of particularly serious crimes and Congress has deemed one subset of aggravated felonies, namely those for which the alien was sentenced to at least five years, particularly serious per se.
The full text of Bastardo-Vale v. Attorney General can be found here:
The Third Circuit has determined that a Pennsylvania conviction for using a communication facility to commit a felony is overbroad and indivisible as compared to the definitions of a controlled substance offense and an aggravated felony. Specifically, the court determined that the facilitated felony is a mean, and not an element, of the offense. One juror can believe that Felony A was committed by use of the communication device, while another juror believes Felony B was committed.
The full text of Hillocks v. Attorney General can be found here:
https://www2.ca3.uscourts.gov/opinarch/172384p.pdf
The First Circuit has rejected the particular social group of “men who have been romantically involved with the partners of drug dealers,” finding that it lacks sufficient particularity.
The full text of Ramirez-Perez v. Barr:
The Court of Appeal of California, Second Appellate District, has determined that parolees are not eligible to file motions to vacate under Penal Code 1473.7 because they are still in constructive criminal custody.
The full text of People v. DeJesus can be found here:
The Ninth Circuit has upheld the Board of Immigration Appeals’ denial of a motion to reopen for a petitioner whose drug conviction was vacated by the criminal court.
“Menendez-Gonzalez cites to ten unpublished BIA decisions over a period of about eight years, a period of time when the BIA completed more than 30,000 cases each year. He argues that those citations demonstrate a ‘pattern’ of BIA orders granting sua sponte reopening following vacatur of a conviction, and that this pattern established a sufficiently ‘settled course’ that constrained the BIA’s discretion and obligated it to exercise its sua sponte authority to reopen his case. We do not agree. Among the thousands of decisions made by the BIA over many years, it is not at all remarkable or persuasive to be able to find a few that seem to have elements in common with a current litigant’s case. That is especially true with unpublished dispositions, as they generally include only brief descriptions, if any, of facts that may influence the exercise of discretion. Citation of a few unpublished decisions falls far short of establishing that the BIA has effectively adopted a rule that vacatur of an underlying conviction necessarily requires it to grant reopening sua sponte, effectively eliminating the discretion that the BIA would otherwise have to examine the specifics of an individual petitioner’s case.”
“There have been other decisions over the years in which the BIA declined to exercise its sua sponte authority to reopen after determining that vacatur of the underlying conviction did not constitute an “exceptional circumstance” sufficient to warrant such an extraordinary remedy. Even if we concluded that there was a sufficiently established pattern of granting sua sponte reopening where the underlying conviction had been vacated—and we have not—Menendez-Gonzalez has not established any ‘incorrect legal premise’ in the BIA’s decision not to reopen sua sponte where the petitioner waited years before moving to reopen.”
The full text of Menendez-Gonzalez v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/11/15-73869.pdf
The Ninth Circuit has determined that the Board of Immigration Appeals (Board) applied the wrong legal standard to a motion to reopen when it determined that the movant established only a possibility, rather than a probability, of future torture. The Ninth Circuit held that a movant need only show prima facie eligibility for relief in a motion to reopen. Thus, in the context of a motion to reopen based on ineffective assistance of counsel, the movant need only show that his counsel’s deficient performance may have affected the outcome of the proceedings. Similarly, in the context of a request for reopening to pursue a 212(c) waiver, the Board’s conclusion at the motion to reopen stage that the new hardship evidence would not impact the outcome in the case was too stringent of a standard for reopening.
The full text of Flores v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/18/15-73461.pdf
The Ninth Circuit, sitting en banc,, has determined that an inconclusive record of conviction meets a petitioner’s burden for demonstrating eligibility for relief. The court determined that this outcome is mandated by the Supreme Court’s decision in Moncrieffe v. Holder.
The court left open the question as to who bears the burden of production of all documents in the record of conviction. “To the extent that there may be a predicate factual question, it would be whether all relevant and available documents have been produced. But this question implicates a possible burden of production, which we need not and do not address here, not the burden of proof. Once all relevant and available Shepard documents have been produced, nothing remains inconclusive—the documents either show that the petitioner was convicted of a disqualifying offense under the categorical approach, or they do not. What the documents show is thus a purely legal question, to which the burden of proof is irrelevant.” The court remanded the case to the Board of Immigration Appeals to decide the burden of production issue in the first instance.
The full text of Marinelarena v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/18/14-72003.pdf
The Ninth Circuit has deferred to the Board of Immigration Appeals’ (BIA) decisions in Matter of Medina-Jimenez and Matter of Obshatko and concluded that the categorical approach does not apply to the analysis of whether a conviction related to violating a protective order disqualifies an applicant from cancellation of removal for non-lawful permanent residents. “The presence of the word ‘convicted’ in § 1229b(b)(1)(C) and its absence from § 1227(a)(2)(E)(ii), renders the statutory language ambiguous regarding whether the categorical approach applies to determining whether an alien is removable under § 1229b(b)(1)(C) for violating a protection order under § 1227(a)(2)(E)(ii).” “The BIA’s two-step inquiry for determining whether an alien is ineligible for cancellation of removal based on a violation of a protection order is consistent with the statutory language and is a reasonable interpretation: whether the alien has been ‘convicted’ as defined by § 1101(a)(48)(A); and whether a state court found that the alien’s ‘offense’ involves conduct described under § 1227(a)(2)(E)(ii).”
The Ninth Circuit also agreed with the BIA that a state’s labeling of an offense as a conviction is not determinative as to whether the offense qualifies as a conviction under the immigration laws, so long as the underlying proceeding is criminal in nature. “The proceeding should at the very least comply with basic notions of procedural due process—e.g., notice and opportunity to be heard in front of an impartial tribunal.” Thus, a violation of an Oregon restraining order under the Family Abuse Prevention Act, though not considered a crime under Oregon law, meets the definition of a conviction for immigration purposes.
The full text of Diaz-Quirazco v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/23/16-72387.pdf
The Ninth Circuit has determined that a California conviction for battery resulting in serious bodily injury is a crime of violence under the federal sentencing guidelines. The court determined that the statute criminalizes an intentional use of physical force that results in serious bodily injury. “Because ‘serious bodily injury’ is defined as ‘a serious impairment of physical condition,’ we must [] conclude that a person cannot be convicted under § 243(d) ‘unless he willfully and unlawfully applies force sufficient to not just inflict a physical injury on the victim, but to inflict’ a severe physical injury.”
Given the similar definitions of a crime of violence in the federal sentencing and immigration contexts, this decision could have significant impact in immigration cases.
The full text of United States v. Perez can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/25/17-10216.pdf
The Eighth Circuit has upheld a finding that the Movement of Democratic Forces of Casamance is a Tier III terrorist organization. As such, the petitioner - who donated money and recruited members for the organization - was ineligible for adjustment of status.
The full text of N’Diaye v. Barr can be found here:
The Eighth Circuit has determined that Nebraska’s false reporting statute is overbroad and divisible with respect to the issue of moral turpitude. The court then determined that subsection (1)(a) requires a specific intent to deceive a police officer, and as such, qualifies as a crime involving moral turpitude.
The full text of Adame-Hernandez v. Barr can be found here:
The Eighth Circuit has determined that an Iowa statute making it illegal to “manufacture, deliver, or possess with the intent to manufacture or deliver, a controlled substance, a counterfeit substance, or a simulated controlled substance, or to act with, enter into a common scheme or design with, or conspire with one or more other persons to manufacture, deliver, or possess with the intent to manufacture or deliver a controlled substance, a counterfeit substance, or a simulated controlled substance” is a controlled substance offense. The court rejected the defendants’ argument that aiding and abetting liability is inherent in the definition of all drug offenses, and Iowa’s doctrine of aiding and abetting is broader than the generic definition of aiding and abetting because it requires mere knowledge of the underlying crime, as opposed to an intent to promote or facilitate the underlying crime.
The court disagreed, finding that the intent requirement for aiding and abetting in Iowa was substantially similar to the federal definition of aiding and abetting.
The full text of US v. Boleyn can be found here:
The Sixth Circuit has determined that a Michigan conviction for unarmed robbery is a crime of violence under the sentencing guidelines. The court noted that the minimum conduct punishable under the statute requires putting the victim in fear of physical injury, and thus, involves the threatened use of force. Given the similar definitions of a crime of violence in the sentencing guidelines and a crime of violence aggravated felony in the immigration context, this decision could have persuasive impact in immigration cases.
The full text of United States v. Fuller-Ragland can be found here:
http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0146p-06.pdf
The Sixth Circuit has granted a petition for review for an indigenous Guatemalan who became involved in labor rights activities on behalf of indigenous workers after being deported. The court held that his voluntary participation in these activities, combined with evidence that persecution of indigenous communities in Guatemala had intensified, was sufficient to warrant reopening.
The full text of Pablo Lorenzo v. Barr can be found here:
http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0145p-06.pdf
The Fifth Circuit has determined that a Notice to Appear lacking the time and date of the first removal hearing is not jurisdictionally deficient. However, the court agreed with the Seventh Circuit that such a situation does present a claim-processing rule. Thus, the issue needed to be raised before the Board of Immigration Appeals.
The full text of Pierre-Paul v. Barr can be found here:
http://www.ca5.uscourts.gov/opinions/pub/18/18-60275-CV0.pdf
The Fourth Circuit has determined that a Virginia conviction for participation in a criminal street gang is not categorically a crime involving moral turpitude. “Contrary to the BIA’s conclusion, the mere fact that an act was committed ‘in association with’ a gang by someone who “actively participate[d] in” the gang does not necessarily involve moral turpitude. To hold otherwise would allow a statute to be classified as involving depraved conduct based on a characteristic unrelated to that conduct, whether it be the defendant’s identity or that of the individuals with whom he acted.”
In addition, the court found that it had jurisdiction to take an appeal directly from the Immigration Court in this matter. At an earlier stage of proceedings, the Immigration Judge had found that the petitioner was not removable for his conviction, the Department of Homeland Security had appealed, and the Board of Immigration Appeals had reversed. On remand, the Immigration Judge issued a removal order, and the petitioner waived appeal, before filing a petition for review with the Fourth Circuit. The Fourth Circuit found that the petitioner had met his administrative exhaustion requirement.
The full text of Cabrera v. Barr can be found here:
The Third Circuit has granted a petition for review filed by a Nepali asylum seeker, finding the Board of Immigration Appeals failed to accept as true declarations submitted with a motion to remand, without providing a reason to believe that the declarations are inherently unbelievable.
The full text of Tilija v. Attorney General can be found here:
The Third Circuit has determined that a Notice to Appear that lacks the time and date of the first removal hearing does not deprive the Immigration Court of jurisdiction over the removal proceedings.
The full text of Nkomo v. Attorney General can be found here: