BIA Addresses Torture by "Rogue Officials"

The Board of Immigration Appeals (BIA) has determined that torture by “rogue officials” is not protected against by the Convention Against Torture (CAT). “The history and purpose of the treaty reflect that its protection was intended to apply only to torture that occurs in the context of governmental authority.” “Thus, under the treaty and its implementing regulation, torturous conduct committed by a public official who is acting ‘in an official capacity,’ that is, ‘under color of law’ is covered by the Convention Against Torture, but such conduct by an official who is not acting in an official capacity, also known as a ‘rogue official,’ is not covered by the Convention. ‘Rogue officers’ or ‘rogue officials’ are public officials who act outside of their official capacity, or, in other words, not under color of law.”

“An act that is motivated by personal objectives is under color of law when an official uses his official authority to fulfill his personal objectives.” “In evaluating if a public official is acting under color of law in inflicting torture, circuit courts have significantly relied on whether government connections provided the officer access to the victim, or to his whereabouts or other identifying information.” “Also relevant to the analysis is whether a law enforcement officer was on duty and in his official uniform at the time of his conduct. If so, it is more likely that he acted under color of law. However, the use of an official uniform or service weapon is not dispositive of the issue, because those items can be obtained outside the normal channels of government operations, and they may not be necessary to the official’s ability to engage in the torturous conduct.” “Moreover, in general, the higher a position in law enforcement that a person holds, the more likely his conduct will be under color of law, even if his actions are taken for personal gain.“ “It has been held that the use of government-issued equipment, such as a service weapon or handcuffs, to beat or restrain a victim does not automatically render the conduct under color of law. Rather, an Immigration Judge should consider whether a private citizen could obtain the same weapons or restrain the victim in the same manner.”

“In sum, the key consideration in determining if a public official was acting under color of law is whether he was able to engage in torturous conduct because of his government position or if he could have done so without any connection to the government. Issues to consider in making this determination include whether government connections provided the officer access to the victim, or to his whereabouts or other identifying information; whether the officer was on duty and in uniform at the time of his conduct; and whether the officer threatened to retaliate through official channels if the victim reported his conduct to authorities.”

The BIA clarified that even if an official acted in a rogue capacity, an applicant may qualify for CAT protection if the torture was inflicted with the acquiescence of a government official. “An applicant may establish acquiescence by citing to evidence, particularly country conditions evidence, showing that the torturous conduct is “routine” and sufficiently connected to the criminal justice system for an adjudicator to reasonably infer that higher-level officials either know of the torture or remain willfully blind to it and therefore breach their legal responsibility to prevent it. “

The full text of Matter of O-F-A-S- can be found here:

https://www.justice.gov/eoir/page/file/1224026/download

BIA Addresses Inconsistencies in Asylum Applicant's Testimony

The Board of Immigration Appeals (BIA) has issued a decision addressing what opportunity an asylum applicant must be given to address perceived inconsistencies in her testimony. “An applicant may be put on notice of inconsistencies in different ways, depending on the circumstances. When an inconsistency is obvious or apparent, it is not necessary to bring it to an applicant’s attention.” “For example, where an alien’s application stated that his home was ransacked by the opposition party while he was away, but he testified he was beaten by party members when he was at home, the Immigration Judge was not required to bring this obvious inconsistency to his attention.”

“Where an inconsistency is not obvious, the key consideration is whether it is reasonable to assume that the applicant was aware of it and had an opportunity to offer an explanation before the Immigration Judge relied on it.” “An Immigration Judge may ask the applicant to respond to a perceived inconsistency, but that is not the only way to bring it to his attention. The Government may give the applicant an opportunity to respond through cross-examination. The applicant’s representative may also decide to elicit testimony on direct examination, or on redirect to clarify inconsistencies that are brought out during the hearing, particularly if they are not obvious or apparent. Although an Immigration Judge is not required to ask about obvious inconsistencies, there is nothing that precludes him or her from doing so for the sake of clarity and completeness of the record.”

The full text of Matter of Y-I-M- can be found here:

https://www.justice.gov/eoir/page/file/1225926/download

Eleventh Circuit Defers to Matter of A-B-

The Eleventh Circuit has deferred to the Board of Immigration Appeals’ decision in Matter of A-B-, as a reasonable interpretation of the BIA and Eleventh Circuit’s particular social group precedent. As such, it rejected the petitioner’s proposed social group of “women in Mexico who are unable to leave their domestic relationship.”

“The belief of Amezcua-Preciado’s aunt that Amezcua-Preciado should return to her husband despite being abused is insufficient to determine that Mexican society as a whole perceives women who are unable to leave their relationships as a distinct group.”

“In addition, Amezcua-Preciado’s group is not defined with sufficient particularity because its boundaries are amorphous, overbroad, and subjective. As she defines it, Amezcua-Preciado’s group includes all Mexican women who cannot leave any domestic relationship, whether that is a wife unable to leave her husband or a daughter unable to leave her parents. It covers women who are ‘unable to leave’ a relationship for any reason, including for physical, legal, economic, cultural, or psychological reasons. The fact that a woman could be prevented from leaving a relationship by her psychological or economic dependence reinforces the subjective nature of this group.”

“Finally, to the extent Amezcua-Preciado’s proposed group of Mexican women who are unable to leave their domestic relationships because they fear physical or psychological abuse by their spouse or domestic partner, this group is defined by the underlying harm asserted as persecution in Amezcua-Preciado’s application for asylum and withholding of removal. The women share no ‘narrowing characteristic’ other than their risk of being persecuted. This is the kind of circular definition of a social group, created by reference to the alleged persecution, that cannot create a cognizable particular social group.”

The full text of Amezcua-Preciado v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201814788.pdf

Eleventh Circuit Remands Habeas Petition

The Eleventh Circuit has remanded a habeas petition to determine if the petitioner acted in bad faith by refusing to complete an application for a travel document, or whether he returned the incomplete application simply because he did not know the remaining information. The court emphasized that the District Court cannot resolve this conflict on affidavits alone.

The full text of Singh v. Attorney General can be found here:
http://media.ca11.uscourts.gov/opinions/pub/files/201812915.pdf

Tenth Circuit finds that Aurora, Colorado Theft Conviction is Divisible as a CIMT

The Tenth Circuit has determined that a conviction under the Aurora, Colorado Municipal Code is overbroad and divisible with respect to the definition of a crime involving moral turpitude. Because the petitioner could not prove that her conviction was under a subsection that did not match the definition of a crime involving moral turpitude, the court concluded that she had not met her burden of proving eligibility of cancellation for removal for nonlawful permanent residents.

The full text of Robles-Garcia v. Barr can be found here:

https://www.ca10.uscourts.gov/opinions/18/18-9511.pdf

Ninth Circuit Finds that Federal Conviction for Armed Robbery Involving Controlled Substances is Crime of Violence

The Ninth Circuit has determined that a federal conviction for armed robbery involving controlled substances is a crime of violence under federal sentencing law. The court rejected the petitioner’s argument that armed robbery by intimidation does not require the actual or threatened use of violent force. Given the similar definition of a crime of violence in the immigration and federal sentencing contexts, this decision could have persuasive effect in immigration litigation.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/12/02/17-35446.pdf

Ninth Circuit Addresses Proper Role of Asylum Officer's Assessment to Refer in Credibility Determination

The Ninth Circuit has determined that an Immigration Judge may not rely on an Asylum Officer’s credibility determination. “ The IJ may not rely on an asylum officer’s subjective conclusions about a petitioner’s demeanor or veracity at an earlier interview.”

The full text of Qiu v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/12/11/17-71338.pdf

Ninth Circuit Finds that Removal of Petitioner did not Withdraw his Appeal

The Ninth Circuit has determined that when the Department of Homeland Security removes an appellant while his appeal of a denied motion to reconsider is pending before the Board of Immigration Appeals, his appeal is not considered withdrawn under the regulatory departure bar. “We therefore hold that an alien does not withdraw his appeal of a final removal order, including the appeal of the denial of a motion to reopen or reconsider, simply because he was involuntarily removed before the appeal was decided. Rather, we hold that § 1003.4 provides for withdrawal only when the petitioner engaged in conduct that establishes a waiver of the right to appeal.”

The full text of Lopez-Angel v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/12/27/16-72246.pdf

Eighth Circuit Rejects Challenge to Underlying Removal Order in Reinstatement Appeal

The Eighth Circuit has rejected the petitioner’s argument that he suffered a gross miscarriage of justice in his underlying administrative removal order, finding that he cannot challenge the validity of the underlying removal order through an appeal of the reinstatement of that order.

The full text of Lara Nieto v. Wolf can be found here:

https://ecf.ca8.uscourts.gov/opndir/19/12/182232P.pdf

Third Circuit Transfers Citizenship Claim to District Court to Evaluate Claim of De Facto Marriage in Peru

The Third Circuit has transferred a case to District Court to resolve a dispute about whether the petitioner’s parents were married (and subsequently legally separated) under Peruvian law, which recognizes de facto marriages.

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

https://www2.ca3.uscourts.gov/opinarch/191049p.pdf

Third Circuit Finds that Federal Conviction for Conspiracy to Commit Assault with a Dangerous Weapon is not Aggravated Felony; Remands CAT Claim for Former Gang Member

The Third Circuit has determined a conviction under 18 U.S.C. § 1959(a)(6) (conspiracy to commit assault with a dangerous weapon) is not a crime of violence aggravated felony, not a conspiracy-related aggravated felony (which requires an overt act, an element not required by the federal conspiracy statute), and not a racketeering offense. The court also remanded the petitioner’s claim for protection under the Convention Against Torture, which was premised on the harm he would suffer as a former gang member if he were to be deported to El Salvador. The court emphasized that the Salvadoran government may acquiesce to torture by gang members, even if it is actively opposing gang members, if it is unable to prevent the harm.

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

https://www2.ca3.uscourts.gov/opinarch/183750p.pdf

Second Circuit Finds that BIA Appeal Deadline is Subject to Equitable Tolling

The Second Circuit has determined that the 30-day appeal deadline for filing a Notice of Appeal with the Board of Immigration Appeals (BIA) is a claim processing rule, not a jurisdictional bar, and as such, it is subject to equitable tolling. The court emphasized that equitable tolling is available, even without the BIA exercising its discretionary certification authority.

“ The BIA is free to develop the factors it will apply in considering equitable tolling, although we note that it need not start from scratch. In Holland, the Supreme Court set out standards for courts to apply in determining whether equitable tolling is appropriate: (1) a showing that a petitioner “has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.”  560 7 U.S. at 649 (internal quotation marks omitted). And in the context of a late motion to reopen, we have held that petitioners seeking equitable tolling must demonstrate (1) that their constitutional rights to due process were violated by the conduct of counsel; and (2) that they exercised due diligence during the putative tolling period.”

The full text of Attipoe v. Barr can be found here:

http://www.ca2.uscourts.gov/decisions/isysquery/07812bd0-88af-49f5-9682-1c2732ecc8c3/7/doc/18-204_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/07812bd0-88af-49f5-9682-1c2732ecc8c3/7/hilite/

Second Circuit Addresses Definition of Sexual Abuse of a Minor

The Second Circuit has addressed the definition of a sexual abuse of a minor aggravated felony, taking into account recent Supreme Court precedent on the topic. The court determined that a conviction must require knowing or purposeful conduct to qualify as a sexual abuse of a minor aggravated felony. Turning to the conviction at issue (New York’s criminal sexual act in the second degree, which criminalizes oral or anal sexual conduct with a victim under fifteen years old), the court noted that the statute did not have an explicit mens rea requirement. However, the court concluded that such conduct cannot occur without the perpetrator’s knowledge or intent to commit the criminalized sexual conduct. The court also rejected the petitioner’s argument that New York’s lack of a mistake of age defense transforms the statute into a strict liability offense, outside the scope of the definition of a sexual abuse of a minor aggravated felony. In so doing, the court noted that at the time Congress added the sexual abuse of a minor aggravated felony ground, most jurisdictions did not have a mistake of age defense to similar offenses. Thus, the court concluded that a New York conviction for criminal sexual act in the second degree is a categorial match to the definition of a sexual abuse of a minor aggravated felony.

The full text of Acevedo v. Barr can be found here:

http://www.ca2.uscourts.gov/decisions/isysquery/07812bd0-88af-49f5-9682-1c2732ecc8c3/28/doc/17-3519_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/07812bd0-88af-49f5-9682-1c2732ecc8c3/28/hilite/

USCIS Announces Extension of TPS for El Salvador, Nicaragua, Haiti, Honduras, Nepal, and Sudan

USCIS announces the extension of Temporary Protected Status for El Salvador, Nicaragua, Haiti, Honduras, Nepal, and Sudan until January 4, 2021.

The USCIS announcement can be found here:

https://www.uscis.gov/news/alerts/dhs-extends-tps-documentation-six-countries

BIA Defines Standards for Reopening and Termination of Asylum Based on Fraud

The Board of Immigration Appeals (Board) has determined that “reopening of proceedings to terminate a grant of asylum is warranted if the Department of Homeland Security [DHS] has demonstrated that evidence of fraud in the original proceeding was not previously available and is material because, if known, it would likely have opened up lines of inquiry that could call the alien’s eligibility for asylum into doubt.” In the instant case, the DHS moved to reopen to introduce evidence that the asylee’s attorney had been convicted of conspiracy to commit immigration fraud. The Board considered this sufficient to warrant reopening, but noted that “[i]n reopened proceedings, the DHS carries the burden of proof to establish by a preponderance of the evidence that the respondent’s asylum application was fraudulent, that she was not eligible for asylum when it was granted, and that she would not have been eligible on the true facts.”

The full text of Matter of X-Q-L- can be found here:

https://www.justice.gov/eoir/page/file/1216091/download

BIA Issues Decision on Heightened Standard 209(c) Waiver

The Board of Immigration Appeals has determined that hardship to the applicant is counted in the “exceptional and extremely unusual hardship” standard for a heightened standard 209(c) waiver. However, even if an applicant establishes the exceptional and extremely unusual hardship required to demonstrate extraordinary circumstances, a section 209(c) waiver and adjustment of status may still be denied in the exercise of discretion if the adverse factors, particularly those involving the alien’s criminal conduct, outweigh the favorable ones. . If the applicant has demonstrated exceptional and extremely unusual hardship, that finding would be a significant favorable factor in a discretionary analysis.

The full text of Matter of C-A-S-D- can be found here:

https://www.justice.gov/eoir/page/file/1214306/download

Tenth Circuit Finds that NTA Lacking Date and Time of First Hearing does not Deprive IJ of Jurisdiction

The Tenth Circuit has determined that a Notice to Appear that fails to specify the time and date of the first removal hearing does not deprive an Immigration Judge of jurisdiction over the removal proceedings.

The full text of Lopez-Munoz v. Barr can be found here:

https://www.ca10.uscourts.gov/opinions/19/19-9510.pdf

Ninth Circuit Finds that Denial of U Visa is Challengeable in Federal Court

The Ninth Circuit has determined that the denial of a U visa is challengeable in federal district court under the Administrative Procedures Act. With respect to the petitioner’s claim that USCIS failed to consider all credible evidence, the Ninth Circuit held the appropriate standard of review on remand to the District Court would be whether USCIS acted in a manner that was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. With respect to his claim that Washington’s felony harassment crime is a qualifying crime for U visa purposes, the Court left it to the District Court in the first instance to determine the appropriate standard of review. The petitioner’s challenge to USCIS’s factual finding that felony harassment was not detected by law enforcement would also be reviewed for an abuse of discretion or substantial evidence.

The full text of Perez Perez v. Wolf can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/22/18-35123.pdf

Ninth Circuit Finds that Federal Conviction for Assault Resulting in Serious Bodily Injury is Crime of Violence

The Ninth Circuit has determined that federal convictions for assault resulting in serious bodily injury qualify as crimes of violence for federal sentencing purposes. “The least violent form of each offense is the threat to use violent physical force through the use of a dangerous weapon that reasonably caused a victim to fear immediate bodily injury, which u necessarily entails at least the ‘threatened use of violent physical force’ to qualify the offenses as crimes of violence.” Given the similar definition of a crime of violence for federal sentencing purposes and immigration purposes, this case could have persuasive impact in the immigration context.

The full text of U.S. v. Gobert can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/26/17-35970.pdf

Ninth Circuit Finds Petitioner Eligible for 237(a)(1)(H) Waiver Even Though He Failed to Complete Two-Year Home Residency Requirement

The Ninth Circuit has determined that a lawful permanent resident who failed to complete the two-year home residency requirement as a J visa holder prior to obtaining his residency remains eligible for a 237(a)(1)(H) waiver. “Section 212(e) does not state that noncitizens subject to its residency requirement are not “admissible” to the United States. Rather, it provides that they are not “eligible” for particular forms of admission. Other forms of admission, not specifically barred by the statute, remain available. For example, § 212(e) does not prohibit admission as a tourist or business visitor under 8 U.S.C. § 1101(a)(15)(B).” “Notwithstanding his failure to satisfy or receive a waiver of the two-year residency requirement, Petitioner was admissible under several provisions of 8 U.S.C. § 1101(a)(15).”

The full text of Fares v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/25/13-71916.pdf