Fifth Circuit Finds that 8 USC 1229a(c)(7)(C)(iv)(III) Presents Question of Law

The Fifth Circuit has determined that the standards for reopening to pursue VAWA cancellation of removal —found at 8 USC 1229a(c)(7)(C)(iv)(III) — present a mixed question of fact and law that the court has jurisdiction to review. Thus, the court examined whether the petitioner had established extreme hardship or extraordinary circumstances that warranted reopening.

“We need not—and do not—determine the precise contours of ‘extraordinary circumstances or extreme hardship to the alien’s child’ with our opinion today. Nor, indeed, did the BIA in its decision. But whatever the precise contours of that standard, we can say confidently that the ordinary (terrible) circumstances of a VAWA-based motion to reopen and the usual hardships of a relocation do not suffice. Congress has given petitioners an opportunity to seek relief beyond the usual filing deadline, but it limits that opportunity to extraordinary or extreme cases.”

The full text of Pena-Lopez v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/20/20-60911-CV0.pdf

Fourth Circuit Reverses Injunction on Burdens of Proof in Bond Proceedings

The Fourth Circuit has reversed a class-wide injunction requiring DHS to bear the burden of proof on flight risk and danger to the community in bond proceedings. The court concluded that “1252(f)(1) expressly precludes ‘jurisdiction or authority to enjoin or restrain’ provisions of the immigration laws, including § 1226(a), on a class-wide basis.”

With respect to the claim of an individual class member that DHS should bear the burden of proof in bond proceedings, the Court concluded that noncitizens “are due less process when facing removal hearings than an ordinary citizen would have.” The court concluded that the procedures employed in bond hearings that place the burden of proof on the non-citizen comply with the requirements of due process. The court acknowledged that this creates a circuit split with the First Circuit.

Finally, the court also rejected the argument that due process requires an immigration judge to consider a non-citizen’s ability to pay when setting a bond amount. The court acknowledged that this creates a circuit split with the Ninth Circuit.

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

https://www.ca4.uscourts.gov/opinions/201828.P.pdf

Third Circuit Finds Ineffective Assistance of Counsel for Failure to Submit Corroborating Documents

The Third Circuit has determined that an attorney provided ineffective assistance of counsel by failing to present corroborating documentation of the existence of the applicant’s political party. Notably, the attorney had submitted a written denial of the allegations of wrongdoing. The court noted that “we have recognized that a lawyer cannot be expected to argue his own ineffective assistance.”

The court also criticized the Board’s determination that the assassination of the Haitian president was merely an incremental increase in political violence. “It is unclear to us what, exactly, the Board would consider an adequate change in country conditions if the assassination of the country’s leader is simply an ‘incremental increase’ in unrest.”

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

https://www2.ca3.uscourts.gov/opinarch/211729p.pdf

Third Circuit Upholds Summary Dismissal of Appeal for Failure to File Brief

The Third Circuit has upheld the Board of Immigration Appeals’ summary dismissal of an appeal where the appellant indicated he would file a brief on the notice of appeal, but failed to do so.

The full text of Argueta-Orellana v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/201581p.pdf

Second Circuit Finds that Conviction for NY Attempted Money Laundering in Second Degree is not CIMT

The Second Circuit has determined that a New York conviction attempted money laundering in the second degree is not a crime involving moral turpitude because the statute does not impose the scienter requirement needed to constitute a CIMT. “Although the statute requires the defendant’s knowledge that the financial transaction is ‘designed to . . . conceal or disguise the nature, the location, the source, the ownership or the control of the proceeds of specified criminal conduct,’ it does not require that the offender act with the ‘evil intent’ that the BIA has considered to be inherent in a CIMT: that is, an intention to conceal the underlying criminal activity that created the proceeds, to impair government function, or to deceive the government.“

The full text of Jang v. Garland can be found here:
https://www.ca2.uscourts.gov/decisions/isysquery/6e78bae4-78ad-4640-8871-e1e0059d8c70/5/doc/19-4289_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/6e78bae4-78ad-4640-8871-e1e0059d8c70/5/hilite/

An amended opinion ca be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/5c5858dc-da0d-4ad0-ae1b-9c1fe5429531/1/doc/19-4289_amd_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/5c5858dc-da0d-4ad0-ae1b-9c1fe5429531/1/hilite/

BIA Clarifies Meaning of "Elements"

The Board of Immigration Appeals has determined that “any fact that establishes or increases the permissible range of punishment is an element of the offense for federal purposes.” In so doing, it rejected the respondent’s argument that the identity of a controlled substance is only a “grading factor,” and not an “element,” under Pennsylvania state law.

The full text of Matter of German Santos can be found here:

https://www.justice.gov/eoir/page/file/1499291/download

BIA Finds that LA Domestic Battery is not Crime of Violence

The Board of Immigration Appeals has determined that a Louisiana conviction for domestic battery is not a crime of violence (or, accordingly, a crime of domestic violence) because it criminalizes offensive touching. The Board also noted that it is the Supreme Court’s definition of violent force in Johnson and Stokeling, and not its definition of a misdemeanor domestic violence offense in Castleman, that governs the analysis under section 237(a)(2)(E)(i) of the INA.

The full text of Matter of Dang can be found here:

https://www.justice.gov/eoir/page/file/1497716/download

Ninth Circuit Rejects Ineffective Assistance of Counsel Claim

The Ninth Circuit has rejected a claim that a petitioner’s two prior attorneys committed ineffective assistance of counsel by failing to file untimely motions to reopen for him at an earlier date. “Under the circumstances of this case, we thus cannot conclude that to avoid engaging in ‘egregious conduct that threatens the fairness of the proceedings,’ petitioner’s prior lawyers were required to file untimely motions to reopen with no apparent prospect for avoiding the time bar.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/04/26/16-72752.pdf

Ninth Circuit Finds BIA Lacks Jurisdiction to Reopen Reinstated Order, even if BIA Thinks it has Jurisdiction

The Ninth Circuit has concluded that the agency lacks jurisdiction to reopen a reinstated removal order. As such, it denied the petitioner’s appeal citing the reinstatement provision, even though the agency denied the underlying motion to reopen on due diligence grounds.

The full text of Gutierrez-Zavala v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/04/26/20-73398.pdf

Ninth Circuit Remands Asylum Claim for Gay Nigerian Man

The Ninth Circuit has remanded an asylum claim for a gay Nigerian man, finding that a lie about the name of the hotel where was seen having sex with his boyfriend was not related to a material element of his claim. As such, the agency’s frivolous finding did not withstand scrutiny. In addition, the applicant had presented numerous corroborating documents establishing that he was gay, and the agency ignored these documents, in violation of the applicant’s due process rights.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/05/04/20-70078.pdf

Ninth Circuit Finds that Federal Conviction for Second Degree Murder is Crime of Violence

The Ninth Circuit has determined that a federal conviction for second-degree murder qualifies as a crime of violence. In so doing, it determined that “reckless indifference” is a higher mens rea than “ordinary recklessness.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/05/05/14-10080.pdf

Eighth Circuit Remands Somali CAT Claim

The Eighth Circuit has remanded a mentally ill Somali man’s application for protection under the Convention Against Torture, ordering the agency to consider if he would experience torture in an Internally Displaced Persons camp.

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

https://ecf.ca8.uscourts.gov/opndir/22/04/202662P.pdf

Second Circuit Finds that Violation of Protection Order Deportability Analysis is Governed by Circumstance Specific Approach

The Second Circuit has determined that deportabilty under section 237(a)(2)(E)(i) of the INA (violation of a protective order) is governed by a circumstance specific approach, not a categorical analysis.

The full text of Alvarez v. Garland can be found here:
https://www.ca2.uscourts.gov/decisions/isysquery/7ab57bdb-b5b8-4eea-80f6-61f7193bf77f/2/doc/22-6021_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/7ab57bdb-b5b8-4eea-80f6-61f7193bf77f/2/hilite/

Second Circuit Eliminates Judicial Review of Withholding-Only Proceedings

The Second Circuit has determined that a non-citizen subject to a reinstated removal order can only seek judicial review within 30 days of the reinstatement determination. The non-citizen cannot seek judicial review of any subsequent decision in a withholding-only proceeding.

The full text of Bhaktibhai-Patel v. Garland can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/7ab57bdb-b5b8-4eea-80f6-61f7193bf77f/8/doc/19-2565_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/7ab57bdb-b5b8-4eea-80f6-61f7193bf77f/8/hilite/

BIA Reviews Nunc Pro Tunc Relief in Virginia

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:

https://www.justice.gov/eoir/page/file/1496311/download

DHS Designates Cameroon for TPS and Updates Residency Date for Ukrainian TPS

The Department of Homeland Security has designated Cameroon for Temporary Protected Status, protecting Cameroonians residing in the United States since April 14, 2022:

https://www.uscis.gov/newsroom/news-releases/secretary-mayorkas-designates-cameroon-for-temporary-protected-status-for-18-months

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

Ninth Circuit Addresses Labor Trafficking

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

Ninth Circuit Finds Montana Defines Cocaine more Broadly than Federal Law

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

First Circuit Finds BIA Applied Incorrect Standard in Discretionary Review

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:

http://media.ca1.uscourts.gov/pdf.opinions/21-1335P-01A.pdf

BIA Finds that Disorderly Persons Offense in NJ Constitutes Conviction

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