BIA Finds that NTA Lacking Address of Court is not Jurisdictionally Defective

The Board of Immigration Appeals (BIA) has determined that a “notice to appear that does not include the address of the Immigration Court where the Department of Homeland Security will file the charging document, or include a certificate of service indicating the Immigration Court in which the charging document is filed, does not deprive the Immigration Court of subject matter jurisdiction.” Instead, the BIA concluded that the regulations at issue are “claim-processing” or “internal docketing” rules, which do not implicate subject matter jurisdiction, and that a deficiency in the notice to appear can be remedied by providing the information required by the regulations in a later notice of hearing.

In so doing, the BIA equated the address of the court where the charging document will be filed with the “place” of the first hearing, and found that its prior decision in Bermudez Cota already noted that a subsequent hearing notice could cure the missing location of a first hearing. While the BIA noted that a timely objection can be raised to a claim-processing violation (and that the respondents in this matter did so), it found no prejudice to the respondents, and declined to terminate proceedings.

The full text of Matter of Rosales Vargas can be found here:

https://www.justice.gov/eoir/page/file/1233181/download

BIA Issues Decision Addressing Continuances for Collateral Relief

The Board of Immigration Appeals (BIA) affirmed the denial of a continuance to a detained U visa applicant, even though the applicant had been conditionally approved for U status and placed on the waitlist.

“There is no dispute that the respondent is prima facie eligible for a U visa and that a grant of his visa petition by the USCIS would materially affect the outcome of his removal proceedings. However, in assessing whether to grant an alien’s request for a continuance regarding an application for collateral relief, these primary factors are not dispositive. This is especially so where, as here, there are relevant secondary factors that weigh against continuing the proceedings—in particular, the respondent’s lack of diligence in pursuing a U visa, the DHS’s opposition to a continuance, and concerns regarding administrative efficiency, which include the uncertainty as to when a visa will be approved or become available and the respondent’s detained status.” The BIA then noted that the respondent was detained, had waiting until one month prior to his merits hearing to file the U visa, that DHS opposed the continuance, that it was unclear when a U visa would be available to the respondent, and that the respondent had waited 10 years from the date of the criminal incident to file for U nonimmigrant status.

The full text of Matter of Mayen-Vinalay can be found here:

https://www.justice.gov/eoir/page/file/1236941/download

Tenth Circuit Deems Incomplete NTA to be Claim-Processing Rule; Remands for BIA to Address Aged-Out Qualifying Relative

The Tenth Circuit has reaffirmed that a Notice to Appear missing the time and date of the first hearing is not jurisdictionally deficient, but rather, presents a claim-processing rule violation. A party may bring a timely request for dismissal based on a deficient Notice to Appear. The court remanded the case for the Board of Immigration Appeals to determine if it has the authority to freeze the age of a qualifying relative on the date an application for cancellation of removal is filed when there is undue delay on the part of the agency in adjudicating the application. In the instant case, the applicant’s daughter turned 21 after the court continued his case 5 times on its own motion, delaying adjudication of his adjudication for six years.

The full text of Martinez-Perez v. Barr can be found here:

https://www.ca10.uscourts.gov/opinions/18/18-9573.pdf

Tenth Circuit Remands Congolese Withholding Claim

The Tenth Circuit has remanded a withholding of removal claim for further analysis of whether the government of the Democratic Republic of the Congo engages in a pattern and practice of persecution of political dissidents.

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

https://www.ca10.uscourts.gov/opinions/18/18-9579.pdf

Ninth Circuit Affirms U Visa Regulations Governing Derivative Spouses

The Ninth Circuit has deferred to the regulation that requires a derivative spouse to be married to the principal U visa applicant on the date the U visa application is filed in order to qualify for derivative U nonimmigrant status. Judge Watford dissented, nothing the multitude of other places where “accompanying or following to join” spouses have been defined as those who are married to the primary applicant on the date the application for immigration benefits is granted, not on the date it is filed.

The full text of Tovar v. Zuchowski can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/17/18-35072.pdf

An amended opinion, reaching the same outcome, can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/02/12/18-35072.pdf

Ninth Circuit Addresses Lawfulness of Divorce of Person who Overstayed B-2 Visa

The Ninth Circuit has determined that an individual who enters the US on a B-2 visa and overstays the visa may apply for a foreign divorce even if she and her spouse are both residing in California. The court found that federal law prevents a person who overstays a B-2 visa from establishing a lawful domicile in California. As such, the California law that prevents recognition of a foreign divorce when the two parties are domiciled in California was not applicable. The overstayed immigrant could obtain a foreign divorce and be legally free to marry a new spouse in California.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/07/18-55914.pdf

Ninth Circuit Rejects Equal Protection Challenge to Statute Governing Derivative of Citizenship

The Ninth Circuit has rejected a challenge to the derivation of citizenship statute, finding that the differing treatment for the children of married parents from those of legally separated parents bears a rational basis to the congressional goal of protecting the parental rights of the non-citizen parent. The court rejected the argument that the Supreme Court’s decision in Morales Santana requires the application of a heightened standard of scrutiny to any law that differentiates based on parental marital status, finding that the discussion of parental marital status in Morales Santana was limited to laws that discriminate based on the child’s legitimacy. Since the law at issue looks at the parents’ marital status at a time after the child’s birth, the heightened standard of review related to legitimacy distinctions does not apply.

The full text of US v. Mayea-Pulido can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/03/18-50223.pdf

Ninth Circuit Finds that CA Conviction for Using False Documents to Conceal Citizenship is Neither CIMT nor Aggravated Felony

The Ninth Circuit has determined that a conviction under section 114 of the California Penal Code is neither a crime involving moral turpitude nor an aggravated felony. With respect to the aggravated felony issue, the court noted that the statute the California statute cannot be a match to the federal offense it includes documents, such as fake drivers’ licenses, that are not enumerated in the aggravated felony definition. With respect to the crime involving moral turpitude issue, the court noted that the statute of conviction “ does not require that there be any specific benefit to any specific person—it permits conviction simply for the use of a document to show another that the holder is a legal resident, even where that representation does not incur any benefit to the defendant.”

The full text of Jauregui-Cardenas v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/13/16-71309.pdf

Ninth Circuit Grants Petition for Rehearing in Torres v. Barr

The Ninth Circuit has granted a petition for rehearing en banc in Torres v. Barr, a case addressing the imposition of U.S. immigration law on the CNMI.

The order granting rehearing can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/13/13-70653.pdf

Ninth Circuit Finds that AZ Aggravated Assault Conviction is CIMT

The Ninth Circuit has determined that one combination of subsections of Arizona’s basic and aggravated assault statutes qualify as a crime involving moral turpitude. Specifically, an assault committed with by Intentionally placing another person in reasonable apprehension of imminent physical injury through the use of a deadly weapon or dangerous instrument contains a sufficiently high mens rea and sufficiently serious conduct to rise to the level of moral turpitude.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/14/17-73308.pdf

Ninth Circuit Grants Petition for Rehearing

The Ninth Circuit has granted a petition for en banc rehearing in Lopez v. Sessions, a case dealing with the stop-time rule for cancellation of removal.

The order granting en banc review can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/23/15-72406_en_banc_order.pdf

Ninth Circuit Rejects PSG of Individuals who Report Criminal Activity of Gangs to Police

The Ninth Circuit has rejected a petitioner’s claim that the particular social group comprised of people who report the criminal activity of gangs to the police is cognizable for withholding of removal purposes. In so doing, the court noted that “the record is devoid of any society specific evidence, such as country reports, background documents, or news articles, which would establish that persons who ‘report the criminal activity of gangs to the police’ are perceived or recognized as a group by society in Guatemala.”

The court was careful to note that its decision did “not foreclose the possibility that reporting gang violence to police could suffice to establish eligibility. For example, if there were evidence that, in a specific country, people in the community knew who reported crimes to the police, or if there were laws protecting those who did, the proposed group potentially could be cognizable. Here, however, Petitioner met with only one police officer; he was not in the main public precinct room but in a separate room when making the report; no evidence was taken from him; he was not photographed; and he did not cooperate with the police beyond making his complaint at the police office. As noted, Petitioner presented no evidence of a Guatemalan law or program protecting those who, without more, make police reports, and Petitioner presented no other evidence that Guatemalan society recognizes those who just report criminal activity of gangs to police as a particular social group.:”

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/24/18-70078.pdf

Seventh Circuit Scolds BIA for Failing to Honor Judicial Decision

The Seventh Circuit, in a scathing opinion, reaffirmed an Immigration Judge’s authority to grant a waiver to a U visa applicant, and reprimanded the Board of Immigration Appeals for ignoring the court’s prior decision in this matter. “We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails.”

The decision in Baez Sanchez v. Barr can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D01-23/C:19-1642:J:Easterbrook:aut:T:fnOp:N:2462983:S:0

Sixth Circuit Addresses Prejudice Standard for IAC

The Sixth Circuit has emphasized that a petitioner need only show a reasonable probability that but-for his counsel’s substandard conduct, he would have received a different outcome in his removal proceedings. The Board of Immigration Appeals (Board) “required that Kada prove prejudice by showing that his claims necessarily would have succeeded or that he has actually been tortured rather than asking whether he demonstrated a reasonable probability that, but for his counsel’s ineffective assistance, he would have been entitled to remain in the United States. And it failed to treat Kada as it has similarly-situated individuals. As a result, the Board abused its discretion by denying Kada’s motion to reopen.”

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

https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0014p-06.pdf

Fifth Circuit Finds Res Judicata Inapplicable to Removability Charges Based on Different Convictions

The Fifth Circuit determined that the Department of Homeland Security was not precluded from bringing an aggravated felony charge based on the petitioner’s burglary conviction after the Board of Immigration Appeals terminated proceedings based on an aggravated felony charge related to the petitioner’s evading police conviction. “Because the two proceedings against Chavez did not deal with the same claim or cause of action, res judicata did not preclude the DHS from seeking to remove Chavez on the basis of his burglary conviction.”

The full text of Chavez-Mercado v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/17/17-60212-CV0.pdf

Fourth Circuit Finds that BIA Violated Asylum Seeker's Due Process Rights

The Fourth Circuit determined that the Board of Immigration Appeals (BIA) violated the due process rights of an asylum seeker when it remanded her case to the judge to further consider certain inconsistencies in her testimony, but then affirmed the judge’s denial of her application without holding a hearing to take her testimony on remand.

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

http://www.ca4.uscourts.gov/opinions/181886.P.pdf

Third Circuit Disagrees with BIA's Assessment of VAWA Cancellation Eligibility

The Third Circuit has disagreed with the Board of Immigration Appeals' (BIA) assessment of when a crime is “connected to” the abuse an applicant for VAWA cancellation has endured.

“As a threshold matter, we are not convinced that the Chevron framework applies here because interpreting ‘connected to’ does not implicate the BIA’s ‘expertise in a meaningful way.’ Rather it appears to be ‘a pure question of statutory construction for the courts to decide.’ Even if the Chevron framework did apply, ‘connected to’ is unambiguous as discussed below and therefore, the meaning of ‘connected to’ is resolved under the first step of Chevron.”

“Dictionaries define the word ‘connected’ similarly. Miriam-Webster defines it as ‘having the parts or elements logically linked together;’ the Oxford English Dictionary defines it as ‘related, associated (in idea or nature);’ and Black’s Law Dictionary defines it as ‘to associate as in occurrence or in idea.’ Together, these definitions indicate that the term ‘connected to’ means ‘having a causal or logical relationship.’

“A narrow construction, like the one the BIA adopted here, would frustrate this statute’s larger goal by limiting the exception to those who committed crimes at the direction of their abuser. There are other reasons for which an abused spouse might commit acts that, absent the abuse, would indicate bad character. We do not need to develop that list in connection with this case, but at the same time we should not limit the applicability of the exception in a way that is contrary to the intent of the statute.”

The court also rejected a USCIS memo with a more narrow definition of “connected to,” finding it unpersuasive.

The full text of Ramos de Silva v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/181699p.pdf

Second Circuit Concludes that NY Conviction for Attempted Possession of a Sexual Performance by a Child is an Aggravated Felony

The Second Circuit has concluded that a New York conviction for attempted possession of a sexual performance by a child is an aggravated felony related to possession of child pornography. The court rejected the petitioner’s argument that the New York statute had a lower mens rea than the federal statute, finding they both require the defendant to know that a minor was involved in the depiction. The petitioner also argued that the New York statute lacks the affirmative defense permitted by the federal statute, which covers an individual who possesses less than three prohibited visual depictions and, without allowing anyone else to access to them, either promptly destroys them or turns them over to law enforcement. The court deemed the affirmative defense to be irrelevant to the categorical approach.

The full text of Quito v. Barr can be found here:
http://www.ca2.uscourts.gov/decisions/isysquery/327299e4-e63d-454c-8297-339ce94391dc/4/doc/18-996_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/327299e4-e63d-454c-8297-339ce94391dc/4/hilite/

Second Circuit Concludes that Woman Resisting Sexual Violence may be Exhibiting a Political Opinion

The Second Circuit has concluded that a Salvadoran woman who resisted rape attempts by gang members may have exhibited an actual or imputed feminist, anti-patriarchy, or anti-gang authority political opinion. The decision recognizes that gangs essentially operate as political entities in El Salvador, and should provide excellent language for asserting political opinion in other cases involving resistance to gang authority.

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

http://www.ca2.uscourts.gov/decisions/isysquery/327299e4-e63d-454c-8297-339ce94391dc/1/doc/17-3903_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/327299e4-e63d-454c-8297-339ce94391dc/1/hilite/

CA Appellate Court Addresses IAC and 1473.7

The California Court of Appeal, Fourth Appellate District, has issued a decision addressing the grounds for pre-Padilla ineffective assistance of counsel claims, but also recognizing that a Sixth Amendment violation is not required to meet the standard for a vacatur under section 1473.7 of the California Penal Code (CPC). “Nevertheless, prior to Padilla, it remained an open question in California whether defense counsel had an affirmative duty to advise about immigration consequences of a plea. Earlier cases provide limited guidance on what types of advice or lack thereof rose to the level of ineffective assistance under California law prior to Padilla. While it is clear that affirmative misadvice satisfies the performance prong of an ineffective assistance claim, it is less clear whether a failure to provide comprehensive advice might qualify.”

In the instant case, it was undisputed that some conversations about immigration consequences took place between the defendant and his counsel, and that the defense counsel merely reiterated the warnings of possible immigration consequences from the Tahl form, the counsel’s performance was deficient.

However, the court determined that the counsel’s error was not prejudicial. “Defendant did not satisfy this burden here. The record contains sufficient evidence to conclude that defendant prioritized drug treatment over potential immigration-neutral pleas, and therefore it is not reasonably probable that he would have rejected the plea but for his counsel’s failure to properly advise him.” The court noted that the defendant had rejected an offer to an immigration-neutral disposition under section 459 of the CPC.

“We agree with Camacho and Mejia’s conclusion that prevailing under section 1473.7 does not require a defendant to prove a violation of his constitutional rights, and only requires contemporaneous evidence demonstrating a reasonable probability that but for the alleged error defendant would not have entered a guilty plea. However, we disagree that these cases counsel a different result here.” “[E]ven under an expansive reading of Camacho and Mejia we still conclude that defendant failed to meet his burden to show that there is a reasonable probability that but for the error defendant would not have entered his plea.”

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

http://sos.metnews.com/sos.cgi?1219//E070926