Ninth Circuit Lays Out Standards for Implausibility Finding

The Ninth Circuit has articulated certain standards for reviewing the agency’s determination that testimony is implausible. To begin, while an IJ must cite contrary evidence in the record, an implausibility finding still hinges on the application of common sense. As such, no express contradiction between testimony and other record evidence is required. In addition, an IJ must provide a witness an opportunity to explain a perceived implausibility during the merits hearing.

The full text of Lalayan v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/13/18-73062.pdf

Ninth Circuit Addresses Service on a Minor, Use of Juvenile Court Records

The Ninth Circuit has determined that improper service of an NTA on a minor alien released from DHS custody can be cured if DHS later perfects service before substantive removal proceedings begin. The court also discussed when evidence of alienage may be tainted because it was found using information obtained in violation of a petitioner’s constitutional rights.

“Flores-Chavez requires DHS to serve the NTA on the custodian of a minor alien after he is released. It does not create a bizarre rule where, if service on the custodian is not made the instant the minor is released, DHS is barred from pursuing removal.” “To cure defective service, DHS re-served the NTA on then-adult B.R., but B.R. here complains that DHS again did not serve notice on B.R.’s mother. We hold that DHS need not have served B.R.’s mother after he turned eighteen and that DHS properly perfected service by mailing the NTA to B.R.’s attorney.”

“Applied to the limited instances in which we recognize the availability of the exclusionary rule in immigration proceedings, if an alien establishes a prima facie case of an egregious regulatory or Fourth Amendment violation warranting suppression, the alien is then charged with providing specific evidence that each piece of allegedly suppressible government evidence is tainted by that unlawful act. Upon that showing, the burden then shifts to the government to contest the alien’s specific evidence of taint or otherwise show the government’s allegedly tainted evidence is immune from suppression, including a demonstration that the evidence was obtained independently of or is sufficiently attenuated from the underlying unlawful act or evidence obtained therefrom.”

The full text of BR v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/12/19-70386.pdf

Eighth Circuit Reverses Finding that Iowa Conviction for Enticing a Minor is a Crime of Child Abuse

The Eighth Circuit has reversed the agency’s finding that an Iowa conviction for enticing a minor is a crime of child abuse. In so doing, the court noted that to obtain a conviction under this statute, the State must prove that the defendant (1) enticed a person reasonably believed to be under the age of sixteen, and (2) did so with the intent to commit an illegal act upon a minor. “The intended ‘illegal act’ need not be the act that entices the minor. The element of enticement speaks only to how the offender draws a minor into a position where the minor could be subjected to an illegal act. It does not address what sort of intended illegal act would satisfy the second element of the offense. Enticement may be accomplished, for example, simply by asking a minor to help find a lost puppy, regardless of what the offender intends to do next. Looking only at the plain text of the Iowa statute, we cannot exclude the possibility that an offender could be prosecuted for enticing a minor with intent to commit disorderly conduct or harassment upon a minor. ”

The full text of Peh v. Garland can be found here:

https://ecf.ca8.uscourts.gov/opndir/21/07/201508P.pdf

Eighth Circuit Affirms Denial of Asylee Adjustment Application

The Eighth Circuit affirmed the agency’s denial of an asylee adjustment of status application, finding that the issue of whether the petitioner provided material support to terrorism was not actually litigated during his asylum proceeding in the Immigration Court. Thus, the government was not issue precluded from denying the adjustment on terrorism grounds.

The full text of Fofana v. Mayorkas can be found here:

https://ecf.ca8.uscourts.gov/opndir/21/07/201623P.pdf

Sixth Circuit Declines to Reopen Reinstated Removal Order

The Sixth Circuit has declined to reopen a removal order issued against a lawful permanent resident who subsequently vacated the conviction that served as the basis of removal. The court declined to find that a reinstated can be reopened, even if there is a showing of a gross miscarriage of justice in the underlying removal order. Moreover, because the petitioner did not vacate the conviction until after he was removed, there was no gross miscarriage of justice.

The full text of Sanchez-Gonzalez v. Garland can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0161p-06.pdf

Fifth Circuit Finds TX Drug Conviction to be Aggravated Felony

The Fifth Circuit has determined that a Texas statute criminalizing manufacture or delivery of cocaine (which includes an offer to sell cocaine) is an aggravated felony. The court noted that the statute requires an intent to sell, which is analogous to the intent to the distribute found in the federal Controlled Substances Act. The court recognized that its decision creates a circuit split with the Ninth Circuit on solicitation offenses.

The full text of Ochoa-Salgado v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/19/19-60519-CV0.pdf

Fifth Circuit Rejects Adverse Credibility Determination

The Fifth Circuit has rejected an adverse credibility determination rendered by an Immigration Judge with a 99.5% denial rate, based on perceived similarities between the petitioner’s claim and other asylum claims. “Here, the IJ did not compare the petition to specific applications, instead orally describing an amalgam of applications that she had previously seen. Nor did the IJ identify’ a substantial number of instances where the same or remarkably similar language is used to describe the same kind of incident or encounter. As a result, Singh could not meaningfully compare the language and narratives, produce evidence to explain the similarities, or draw attention to important distinctions. A composite description provides only a distillation of several petitions and a glimpse into the mind of the IJ, an insufficient foundation for the fine-grained comparisons that are needed for inter-proceeding similarities to have probative value. For the same reasons, it precludes the BIA and appellate courts from engaging in the searching review that interproceeding similarities require.”

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

https://www.ca5.uscourts.gov/opinions/pub/19/19-60937-CV0.pdf

Fourth Circuit Finds Jurisdiction to Review Hardship Determination

The Fourth Circuit has determined that whether an applicant for cancellation of removal has proven exceptional and extremely unusual hardship to a qualifying relative is a mixed question of fact and law that can be reviewed by a federal appellate court. Unfortunately, the court affirmed the denial, finding that the petitioner’s four children (including one with a diagnosed anxiety disorder) would not suffer the requisite hardship if he was removed.

The full text of Gonzalez Galvan v. Garland can be found here:

https://www.ca4.uscourts.gov/opinions/201485.P.pdf

Third Circuit Overturns Negative Reasonable Fear Determination

The Third Circuit has overturn a two phrase negative fear determination, finding that it is insufficient for appellate review. The Immigration Judge decision stated, ““R not targeted on account of protected ground. Government is willing to assist.”

“A two-sentence recitation on a bulletpoint form will rarely, if ever, provide sufficient reasoning for a decision. A decision, such as the one here, that does not refer to record evidence will never suffice.”

The full text of Valarezo-Tirado v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/201705pa.pdf

An amended decision can be found here:

https://www2.ca3.uscourts.gov/opinarch/201705pa2.pdf

Ninth Circuit Deems California Forgery Offense to Categorically be Aggravated Felony

The Ninth Circuit has determined that a California forgery statute is a categorical match to the definition of a forgery aggravated felony. “Thus, by definition, § 470a requires proof of a false writing capable of procuring fraud. A person who takes the affirmative step to photocopy a genuine document with the intent to deceive has made a false instrument—an action that falls squarely within the generic definition of forgery.”

The full text of Escobar Santos v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/09/17-72334.pdf

Ninth Circuit Finds that Release by CBP at Checkpoint is not Admission

The Ninth Circuit has determined that a petitioner who held temporary resident status, and who stopped at a Customs and Border Patrol checkpoint and subsequently released after showing his temporary resident card, was not admitted to the United States by virtue of this encounter. Admission, instead, requires presentation at a port of entry followed by entry with government consent. The court did clarify that “noncitizens factually admitted to the United States at a U.S. port of entry while they hold temporary resident status under § 1255a(a) do not magically become unadmitted once their temporary resident status ends.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/07/17-72002.pdf

Ninth Circuit Votes to Rehear Reinstatement Case En Banc

The Ninth Circuit has voted for en banc rehearing of a case involving the definition of “illegal reentry” for reinstatement purposes.

The order granting rehearing en banc in Tomczyk v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/06/16-72926.pdf

My blog post on the original decision can be found here:
http://www.sabrinadamast.com/journal/2021/2/12/ninth-circuit-clarifies-the-meaning-of-illegal-reentry-for-reinstatement-purposes

Fourth Circuit Remands Family-Based Asylum Claim

Continuing its streak of truly excellent asylum decisions, the Fourth Circuit has remanded an asylum application premised on a family particular social group, finding that “the gang targeted Petitioner, and not some other person, because of her familial relationship to her husband, who sent her money from the United States every month.”

The full text of Perez Vasquez v. Garland can be found here:

https://www.ca4.uscourts.gov/opinions/191954.P.pdf

USCIS Redesignates Yemen for TPS

US Citizenship and Immigration Services has extended Temporary Protected Status (TPS) for citizens of Yemen, as well as re-designated the country for TPS, allowing Yemenis residing in the United States since July 5, 2021 to apply for TPS.

The full announcement can be found here: https://www.dhs.gov/news/2021/07/06/secretary-mayorkas-announces-extension-and-re-designation-yemen-temporary-protected

SCOTUS Rejects Ninth Circuit's Presumption-of-Credibility Rule

The Supreme Court has rejected the Ninth Circuit’s rule that if the Board of Immigration Appeals does not make an explicit adverse credibility determination, the petitioner’s testimony is presumed credible on appeal to the federal court.

The full text of Garland v. Ming Dai can be found here:

https://www.supremecourt.gov/opinions/20pdf/19-1155_new_197d.pdf

SCOTUS Finds that Reckless Crimes do not Qualify as Violent Felonies

The Supreme Court has determined that a reckless offense does not qualify as a violent felony under the Armed Career Criminal Act (ACCA). Because the definition of a violent felony under the ACCA and a crime of violence under the INA are often treated interchangeably, this decision should be applicable in immigration proceedings.

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

https://www.supremecourt.gov/opinions/20pdf/19-5410_8nj9.pdf

SCOTUS Finds that TPS is not an Admission

The Supreme Court has determined that a grant of Temporary Protected Status (TPS) does not, in and of itself, render a non-citizen “admitted” to the United States. The Court did not reach the question of whether a TPS holder who travels on parole would be considered “admitted or paroled” for the purpose of adjustment of status. In addition, the decision contains some very worrisome language implying that a grant of a U visa would not qualify as admission.

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

https://www.supremecourt.gov/opinions/20pdf/20-315_q713.pdf

SCOTUS Determines that Non-Citizens in Reinstatement Proceedings are not Entitled to Bond Hearings

The Supreme Court has determined that individuals detained following the reinstatement of a prior removal order are not detained under 8 USC 1226, and therefore, are not entitled to bond hearings under that section.

The full text of Johnson v. Guzman Chavez can be found here:

https://www.supremecourt.gov/opinions/20pdf/19-897_c07d.pdf

Attorney General Vacates Asylum Decisions

The Attorney General has vacated the decisions in Matter of A-B- and Matter of L-E-A- II, which purported to limit family-based particular social group asylum claims, domestic violence-based asylum claims, and gang-based asylum claims.

The vacature orders can be found here:

https://www.justice.gov/eoir/page/file/1404791/download

https://www.justice.gov/eoir/page/file/1404796/download

BIA Construes Changed Circumstances Exception to Asylum Filing Deadline

The Board of Immigration Appeals has determined that an applicant who merely continues an activity in the United States that is substantially similar to the activity from which an initial claim of past persecution is alleged and that does not significantly increase the risk of future harm has not established changed circumstances that would excuse an untimely asylum application.

“The activity the respondent engaged in while in the United States— emailing Christian proselytizing messages to people in China—is substantially similar to the actions he undertook in China and represents a continuation of those religious activities without a significant change. The fact that the respondent continued his proselytizing activities after he entered the United States (albeit through a different medium) does not support a finding of changed circumstances since it was this very activity (proselytizing) in China that led him to leave his country originally. The respondent does not allege that he became involved in new activities related to Christianity in the United States; nor does his activity in this country raise a claim for asylum under a separate protected ground or on the basis of a newly articulated claim of future persecution. On the contrary, the respondent’s present claim remains premised on the same fear of the Chinese authorities he possessed prior to coming to the United States, as well as the same protected ground, and therefore does not adequately set forth a change in the respondent’s particular circumstances. Further, while the emails the respondent distributed may have generated renewed interest from the authorities, the record does not reflect that the respondent’s risk of persecution in China increased as a result of his email correspondence such that his claim to asylum, based on his activity in the United States, is significantly changed from his claim of past harm. In essence, it is the same claim he could have made during the 1-year period after he entered the United States.”

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

https://www.justice.gov/eoir/page/file/1401876/download