These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
The Board of Immigration Appeals has determined that a Virginia nunc pro tunc order to correct the identity of a controlled substance is cognizable for immigration purposes. The Board noted that a nunc pro tunc order is only available to correct a court error.
The full text of Matter of Dingus can be found here:
The Department of Homeland Security has designated Cameroon for Temporary Protected Status, protecting Cameroonians residing in the United States since April 14, 2022:
In addition, the federal register notification of Ukrainian TPS has been published, and now permits Ukrainians in the United States as of April 11, 2022 to apply:
https://www.govinfo.gov/content/pkg/FR-2022-04-19/pdf/2022-08390.pdf
The Ninth Circuit has reversed a summary judgment decision in favor of a dairy farm that recruited workers through the TN program, forced them to perform menial labor, and threatened to have them deported if they left their employment. This case has useful analysis for T visa applications, though it was not brought in the context of an application for immigration benefits.
The full text of Martinez-Rodriguez v. Giles can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/04/18/19-35526.pdf
The Ninth Circuit has determined that Montana criminalizes certain derivatives of cocaine not found in the federal definition of the drug.
The full text of U.S. v. House can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/04/15/20-30169.pdf
The First Circuit has determined that the Board of Immigration Appeals incorrectly altered an Immigration Judge’s factual findings related to discretion without applying clear error review. Specially, the judge determined that the applicant’s removal would cause extreme hardship to his father, while the Board noted only that hardship “may” occur. The Board reversed the positive discretionary finding made by the judge, and the First Circuit remanded because the Board did not explain why the judge’s predictive finding regarding hardship was clearly erroneous.
The full text of Barros v. Garland can be found here:
The Board of Immigration Appeals has determined that a disorderly persons offense in New Jersey constitutes a conviction for immigration purposes. In so doing, the BIA analyzed which rights a defendant had in a disorderly persons proceeding. The BIA noted the following protections must be in place for a proceeding to result in a conviction: oof beyond a reasonable doubt; and the rights to confront one’s accuser, a speedy and public trial, notice of the accusations, proof beyond a reasonable doubt; and the rights to confront one’s accuser, a speedy and public trial, notice of the accusations, compulsory process for obtaining witnesses in one’s favor, and against being put in jeopardy twice for the same offense. “In short, we determine whether a proceeding is “criminal” by reference to those rights of criminal procedure guaranteed by the Constitution—as incorporated against the States by virtue of the Fourteenth Amendment—and which are applicable without limitation in all criminal prosecutions.”
“However, not all constitutional rights of criminal procedure are required in every criminal proceeding. Some rights are contingent. For example, the right to a jury trial applies only if the charged offense is deemed “serious,” and the right to counsel applies only if a conviction can result in loss of liberty. Because contingent rights are not required in every criminal proceeding, their absence cannot be dispositive with respect to whether a particular proceeding is criminal in nature. Similarly, the absence of a right to indictment by grand jury is immaterial, because that right has not been made applicable to the States through the Fourteenth Amendment.”
The full text of Matter of S. Wong can be found here:
https://www.justice.gov/eoir/page/file/1488596/download
The Tenth Circuit has determined that “the acts of violence are so widespread that any reasonable adjudicator would find a pattern or practice of persecution against transgender women in Honduras.”
The full text of Gonzalez Aguilar v. Garland can be found here:
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110663824.pdf
The Fifth Circuit has determined that the 30-day filing deadline for a BIA appeal is subject to equitable tolling.
The full text of Boch-Saban v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/20/20-60540-CV0.pdf
The Second Circuit remanded an APA case for the agency to consider whether bearing arms on behalf of the Taliban under duress constitutes an “unlawful act” under U.S. law, such that the person is inadmissible on terrorism grounds.
The full text of Kakar v. USCIS can be found here:
The Department of Homeland Security has designated Afghanistan for Temporary Protected Status, available to Afghans in the US on or before March 15, 2022.
The announcement can be found here:
The Board of Immigration Appeals has determined that a Connecticut conviction for larceny is not a theft-related aggravated felonies because it includes theft-by-fraud offenses. The Board concluded that the statute is both overbroad and indivisible.
The full text of Matter of Morgan can be found here:
The Eleventh Circuit has reversed a finding that a Florida conviction for burglary of an unoccupied dwelling is a crime involving moral turpitude because there is no requirement that the dwelling be intermittently occupied. The court remanded for further analysis by the Board of Immigration Appeals.
The full text of Lauture v. Attorney General can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/201913165.pdf
The Eleventh Circuit has determined that it lacks jurisdiction to review the discretionary determination that an applicant does not meet the criteria for a national interest waiver, as outlined in Matter of Dhanasar.
The full text of Brasil v. Secretary of Homeland Security can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/202111984.pdf
The Eleventh Circuit has determined that Florida defines marijuana more broadly in its criminal laws than in the federal law because it criminalizes acts involving the stalks of the plant. As such, Florida marijuana convictions should no longer trigger controlled substance-related removability.
The full text of Said v. Attorney General can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/202112917.pdf
The Fourth Circuit has determined that a 237(a)(1)(H) waiver is available to an applicant even if her U.S.-citizen father is deceased.
The full text of Julmice v. Garland can be found here:
The Second Circuit has determined that making false statements in violation of 18 U.S.C. § 1001(a) is a crime involving moral turpitude because the conviction “necessarily requires ‘deceit and an intent to impair the efficiency and lawful functioning of the government.’”
The full text of Cupete v. Garland can be found here:
The Fifth Circuit has determined that TPS holders who travel on advance parole after the commencement of removal proceedings are admitted back into the United States, and therefore, are not arriving aliens. Jurisdiction for their adjustment of status rests solely with the immigration courts (assuming they were not classified as arriving aliens prior to their departure), and if they have a final order of removal, they will first need to reopen their removal proceedings before filing their adjustment of status applications.
The full text of Duarte v. Mayorkas can be found here:
https://www.ca5.uscourts.gov/opinions/pub/18/18-20784-CV0.pdf
The Fifth Circuit has determined that a Tennessee money laundering statute is divisible, and the subsection criminalizing using the proceeds of illegal activity to promote illegal activity is an aggravated felony.
The full text of Fakhuri v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/19/19-60275-CV0.pdf
The California Court of Appeals, Second District, has affirmed the denial of a motion to vacate a robbery plea brought by a former temporary resident. “Diaz knew he had temporary resident status that would soon expire and an upcoming appointment to obtain permanent resident status that he would necessarily miss if incarcerated. Although he was legally in the country at the time he pleaded no contest, he knew that he would lose his legal status if he made the plea.
Even if Diaz had believed that someone legally in the country would not face deportation or other immigration consequences as he claims, he also knew that his legal status would expire and that he would not have the ability to secure it. If he believed his fate relied on his legal status, he would have understood that if he made the plea he would not be in the country legally after his temporary resident status expired and that he would potentially be subject to adverse immigration consequences.
If Diaz’s attorney had not spoken to him about immigration consequences prior to Diaz making the plea, it seems highly unlikely that Diaz would not have consulted him when Diaz was advised of the potential dangers by the District Attorney just prior to pleading no contest. Diaz was aggressive in his self advocacy at the plea hearing. He asked multiple questions, spoke directly to the court several times, and attempted to bargain directly with the court as well. Diaz persevered in his efforts to obtain what he wanted, whether it was the significant benefit of a lesser sentence or the return of $17. It is simply not believable that he would leave his immigration status to chance without discussing it with his attorney. The more logical conclusion is that Diaz did, in fact, discuss deportation with Tanaka, knew it would be nearly impossible to avoid, and decided that the slim possibility of success at trial was not worth the risk that he would serve six years in prison.
'Moreover, Diaz declared that he was processed by immigration officials prior to being imprisoned for his 1989 conviction, and that they informed him he had been convicted of a deportable offense and would lose his legal resident status (although he would not be deported despite his illegal status). Diaz did not state that he was surprised, dismayed, or that he attempted to take any action to secure his legal status at that time. His inaction is inconsistent with his claim that he did not believe he would face any adverse immigration consequences and would not accept any resolution of the charges against him if he knew that he would not have a legal right to remain in the United States.
We further conclude that Diaz has failed to show he was prejudiced—i.e. that there was a reasonable probability Diaz would have rejected the plea agreement if he had correctly understood its actual or potential immigration consequences.
In addition to Diaz’s declarations, there was contemporaneous objective evidence in his favor. Diaz had entered the country as a six-year-old child; deportation would have separated him from his mother and from the country where he had spent two-thirds of his young life. These are compelling reasons for Diaz to wish to remain in the United States legally.
We cannot conclude that they are sufficient to meet his burden when weighed against other considerations, however. There is very strong evidence that Diaz made an informed decision to accept the plea bargain that he was offered. There was no other plea offer available to Diaz, as is evident from the plea colloquy and the sentencing hearing. The court stated that the sentence it was willing to give Diaz was better than the one the District Attorney was willing to offer, and it was also the court’s ‘bottom offer. . . . It isn’t going to get any better.’ Given the facts of this case—including that Diaz was the only one of the perpetrators who wielded a deadly weapon, held a knife to the victim’s neck, and drew blood—Diaz ‘had [no] reason to believe that the charges would allow an immigration-neutral bargain that a court would accept.’”
The court further noted that it appears Diaz had a prior criminal record (including possible prison time), that he had forcefully advocated for a lesser prison term and for the return of $17 that had been in his possession at the time of his arrest, and that despite that forceful advocacy, he had made no inquiry after being advised of potential immigration consequences by the court.
The full text of People v. Diaz can be found here:
On March 2, 2022, the Department of Homeland Security (DHS) announced a new designation of Sudan and an extension and redesignation of South Sudan for Temporary Protected Status (TPS) for 18 months.
Individuals newly eligible for TPS under the Sudan designation must have continuously resided in the United States since March 1, 2022. This includes those who benefited from the previous TPS designation for Sudan, which required continuous residence in the United States on or before January 9, 2013.
The 18-month extension and redesignation of South Sudan for TPS will be in effect from May 3, 2022, through November 3, 2023. To be eligible, individuals must have continuously resided in the United States since March 1, 2022, and meet all other TPS eligibility criteria. The extension of South Sudan allows currently eligible TPS South Sudan beneficiaries to re-register and retain TPS through November 3, 2023, so long as they otherwise continue to meet the TPS eligibility requirements. The redesignation of South Sudan allows additional individuals who have been continuously residing in the United States since March 1, 2022, to obtain TPS, if otherwise eligible.
On March 3, 2022, DHS announced a TPS designation for Ukraine. Individuals eligible for TPS under this designation must have continuously resided in the United States since March 1, 2022.
The announcement regarding Sudan and South Sudan can be found here:
The announcement regarding Ukraine can be found here:
https://www.dhs.gov/news/2022/03/03/secretary-mayorkas-designates-ukraine-temporary-protected-status-18-months
