Fifth Circuit Finds that Motion Based on Change in Law was Properly Construed only as Motion for Reconsideration

The Fifth Circuit has determined that a motion filed based on a change in law (namely, the Supreme Court’s decision in Dimaya v. Sessions) was properly construed as only a motion to reconsider, and not a motion to reopen. As such, the 30-day filing deadline was properly applied by the agency (starting from the date the petitioner learned of the Dimaya decision), instead of the longer 90-day deadline applicable to motions to reopen.

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

https://www.ca5.uscourts.gov/opinions/pub/19/19-60274-CV0.pdf

The Fourth Circuit Rejects Former Gang Members as PSG

The Fourth Circuit has rejected a claim for asylum by a former gang member, affirming the agency’s determination that former gang members are not a cognizable particular social group. The court distinguished the agency’s treatment of the record in this case from the agency’s treatment of the record in Oliva.

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

https://www.ca4.uscourts.gov/Opinions/201034.P.pdf

Third Circuit Requires that Asylum Applicant be Given Opportunity to Express Language of Preference

The Third Circuit has determined that an Immigration Judge must give an asylum applicant the opportunity to identify the language they prefer to proceed in, and if that language is anything other than English, to secure an interpreter for the applicant. Accordingly, the court remanded a motion to reopen filed by a Cameroonian asylum seeker whose native language was Pidgin English, and who was not provided with an interpreter during his removal proceedings.

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

https://www2.ca3.uscourts.gov/opinarch/191408p.pdf

Third Circuit Finds that Denaturalized LPR Cannot be Deported Based on Conviction Sustained While a Citizen

The Third Circuit has determined that a naturalized citizen convicted of a crime and then subsequently denaturalized cannot be deported based on the conviction sustained while he was a citizen. The court found that the agency’s contrary interpretation was not entitled to deference.

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

https://www2.ca3.uscourts.gov/opinarch/201778p.pdf

Second Circuit Opines on When Omissions Support Adverse Credibility Determination

The Second Circuit has determined that an omission can support an adverse credibility determination when the applicant could have been expected to disclose the information sooner. In this case, the applicant testified during direct examination that he was on a government black list, but did not disclose until cross-examination that his father and church mate (both of whom had submitted letters in support of his claim that were devoid of any mention of the blacklist) could corroborate that his name was on the list.

The full text of Liang v. Garland can be found here: https://www.ca2.uscourts.gov/decisions/isysquery/d68e31ed-8fb2-4fd4-a7a1-1544a38ff6fa/21/doc/18-2257_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/d68e31ed-8fb2-4fd4-a7a1-1544a38ff6fa/21/hilite/

First Circuit Places Burden on Government in Bond Proceedings

The First Circuit has determined that in a 236(a) bond hearing, the Department of Homeland Security bears the burden of proving the detainee is a danger to the community and a flight risk. With respect to danger, the burden is clear and convincing evidence. For flight risk, the burden is preponderance of the evidence. The court determined that this burden allocation is required by the Due Process Clause of the Fifth Amendment.

The full text of Hernandez-Lara v. Lyons can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/19-2019P-01A.pdf

CA App Ct Addresses Standard of Review of 1018 Motion

The CA Court of Appeals, Fourth District, has determined that abuse of discretion, not independent review, is the proper standard for reviewing the denial of a Penal Code section 1018 motion to vacate a guilty plea. Moving to the merits of the motion, the court held that a trial court’s warning that the immigration consequences in Penal Code section 1016.5 “will” attach, when coupled with a signed Tahl waiver form, does not necessarily defeat the motion.

“The only evidence Lopez had been told a guilty plea would result in deportation was the Tahl form itself. According to Lopez, the process of reviewing the Tahl form ‘took maybe five minutes.’ Trial counsel did not seem to know how long the process took, testifying both that it took ‘a minute or two’ and that it took ‘a while.’ There was no specific testimony that it took longer than the five minutes Lopez described to review the eight-page Tahl form. It also appears from the Tahl form that Lopez robotically initialed almost every line on it, including the prosecutor’s, the defense attorney’s, and the interpreter’s statements. (There was no interpreter used in this case.) It is at best unclear that Lopez read or understood what he was initialing. But even presuming he did, the Tahl form, as a ‘generic advisement’ of consequences, does not constitute a bar to relief.”

“The most important fact about the immigration paragraph of the Tahl form is that both trial counsel and Lopez agree there was no discussion of it.” “Trial counsel testified that he read the immigration portion verbatim from the form. He did not testify that he explained it or expanded on it, nor did he testify that he and the Lopez had any earlier meetings or phone calls to discuss the plea or its immigration consequences. This type of pro forma review does not satisfy section 1016.3, which requires not only accurate but also ‘affirmative advice’ about the immigration consequences of a proposed plea agreement.”

“The evidence before the trial court, based on trial counsel’s testimony, was that trial counsel did not know which of the charges against Lopez carried immigration consequences and what those consequences were.” “Trial counsel may have told Lopez ‘these charges are deportable’ without further specifics, testifying that was ‘generally what I would say.’ Trial counsel testified that he ‘wasn’t worried about the individual charges.’ But under the standard of ‘accurate and affirmative advice’ under section 1016.3, the consequences of each individual charge were highly relevant.” “Not only was trial counsel’s advice not accurate, it was either nonexistent or based on a misapprehension of the surrounding facts and law.”

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

http://sos.metnews.com/sos.cgi?0721//G059146

USCIS Updates Haiti TPS Residency Date

In light of current events in Haiti, USCIS has determined that Haitians residing in the United States as July 29, 2021, will be able to apply for Temporary Protected Status.

The new date of residence can be found here:

uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-haiti

USCIS Redesignates Somalia for TPS

USCIS has redesignated Somalia for Temporary Protected Status (TPS), permitting Somalis who have resided in the United States since July 19, 2021 to apply for TPS.

The USCIS announcement can be found here:

https://www.uscis.gov/news/news-releases/dhs-announces-extension-and-redesignation-of-somalia-for-temporary-protected-status

BIA Rejects Defenses to Removal Based on Government Delay

The Board of Immigration Appeals has determined that the defense of laches cannot be recognized in removal proceedings, even when DHS did not commence removal proceedings for more than 20 years after the initiation of an investigation into the respondent.

The full text of Matter of O-R-E- can be found here:

https://www.justice.gov/eoir/page/file/1413496/download

Attorney General Restores Administrative Closure

The Attorney General has rescinded the decision in Matter of Castro Tum and restored the agency’s authority to administratively close removal proceedings, pending further rulemaking on the topic.

The full text of Matter of Cruz Valdez can be found here:

https://www.justice.gov/eoir/page/file/1412451/download

Attorney General Restores Use of Stipulations

The Attorney General has restored the permissibility of relying on stipulations by the parties that certain elements of an asylum claim have been met by rescinding the decision in Matter of A-C-A-A-.

The rescission decision can be found here: https://www.justice.gov/eoir/page/file/1415401/download

BIA Finds Statutory Rape Offense to be Crime of Child Abuse

The Board of Immigration Appeals has determined that a Tennessee statutory rape conviction is a crime of child abuse, even though it includes victims over age 16. The Board concluded t that section 237(a)(2)(E)(i) covers a broader range of criminal conduct than the “sexual abuse of a minor” aggravated felony provision. “Thus, we conclude that the minimum criminal conduct proscribed by the respondent’s statute of conviction—sexual penetration between a victim who is 17 years old and a perpetrator who is at least 27 years old, committed with a mens rea of recklessness—necessarily involves maltreatment or impairment of a child’s physical or mental well-being and falls within the generic definition of a crime of child abuse.”

The full text of Matter of Aguilar-Barajas can be found here:

https://www.justice.gov/eoir/page/file/1419101/download

Ninth Circuit Rules that Court May Consider Evidence Outside State Criminal Court File to Determine Loss to Victim

The Ninth Circuit has determined that a judge may consider outside the state criminal court record to determine if a non-citizen’s fraud conviction involved a loss to the victims of $10,000 or more.

“Although Nijhawan did not expressly address the question whether a court could consider evidence beyond sentencing-related materials introduced in immigration or judicial proceedings to determine the loss to the victim, the logic of Nijhawan makes clear that the Supreme Court’s rules limiting the evidence that can be considered in categorical cases do not apply in this circumstance-specific context. Because the loss to the victim inquiry in § 1101(a)(43)(M)(i) requires an examination of the offender’s actual conduct, a court is not limited to reviewing the language of the statute of conviction, as would be the case under the categorical approach. For the same reason, the court is not limited to reviewing a specified set of documents to determine which part of a divisible statute was at issue, as would be the case under the modified categorical approach. Instead, the court must determine whether the offender’s actual conduct underlying the state crime of conviction matches the conduct described in the generic federal offense. Courts making this sort of inherently factual finding are generally free to consider any admissible evidence relevant to making such a determination.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/28/20-16092.pdf

Ninth Circuit Weighs in on Challenges to Visa Denials

The Ninth Circuit has issued a decision touching on two important legal questions surrounding the doctrine of consular nonreviewability, which typically prohibits the review of consular denials of visa applications. In this case, the court found that an adult US citizen I-130 petitioner had no protected constitutional interest in the immigrant visa application of his parent, in part, because they had no parent-child relationship established in the United States. In addition, the court provided some guidance on when the Department of State may be acting in bad faith when it denies a visa. Specifically, the visa denial appeared to be in direct contradiction to multiple determinations by USCIS that the applicant had not engaged in marriage fraud. This was sufficient to plead bad faith at the motion to dismiss stage.

The full text of Khachatryan v. Blinken can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/14/18-56359.pdf

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