Second Circuit Upholds One Central Reason Standard in Withholding of Removal Cases

The Second Circuit has deferred to the agency’s requirement that a protected ground be “one central reason” for persecution in order to qualify for withholding of removal. The Court concluded that the INA does not unambiguously provide the proper standard for assessing motive in withholding of removal claims, and thus, deferred to the agency’s interpretation as a reasonable one.

The full text of Quituizaca v. Garland can be found here: https://www.ca2.uscourts.gov/decisions/isysquery/528f9e9b-e56e-4402-b02c-11f5e4641530/2/doc/19-3470_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/528f9e9b-e56e-4402-b02c-11f5e4641530/2/hilite/

Second Circuit Rules on Standard of Review for Corroboration Determinations

The Second Circuit has determined that the Board of Immigration Appeals reviews de novo an Immigration Judge’s determination that an applicant should provide corroborating evidence because it is not a factual finding. However, the subsequent determination as to whether an applicant does not have the evidence and cannot reasonably obtain the evidence is a factual finding that the BIA reviews only for clear error.

The full text of Pinel-Gomez v. Garland can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/528f9e9b-e56e-4402-b02c-11f5e4641530/1/doc/19-3124_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/528f9e9b-e56e-4402-b02c-11f5e4641530/1/hilite/

First Circuit Finds In Absentia Must be Rescinded when NTA Lacks Information about First Hearing

The First Circuit has determined that an in absentia order must be rescinded when the Notice to Appear is missing the date of the first removal hearing. In so doing, the First Circuit disagreed with the Board of Immigration Appeals’ precedential decision in Matter of Laparra-Deleon.

The full text of Laparra-Deleon v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/22-1081P-01A.pdf

First Circuit Remands for Further Consideration of Imputed Gang Members as a PSG

The First Circuit has remanded a withholding case for further consideration of whether imputed membership in a gang can establish membership in a particular social group (PSG). The court noted that the policy reasons for rejecting former gang members as a PSG (namely, not rewarding former gang members for bad behavior) are not present when the gang membership is only imputed.

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

http://media.ca1.uscourts.gov/pdf.opinions/21-1267P-01A.pdf

First Circuit Rejects Willful Acceptance Standard for CAT

The First Circuit has determined that the Board of Immigration Appeals’ use of a “willful acceptance” instead of a “willful blindness” standard in Convention Against Torture cases is unlawful. The court also noted that the question of whether a government official’s conduct constitutes acquiescence to torture is a question of law, subject to de novo review in the court of appeals. Finally, the court remanded for further consideration of whether MS-13 is a de facto government actor.

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

http://media.ca1.uscourts.gov/pdf.opinions/21-1150P-01A.pdf

DHS Designates Ethiopia for TPS

The Department of Homeland Security has designated Ethiopia for Temporary Protected Status.

The announcement can be found here: https://www.dhs.gov/news/2022/10/21/dhs-designates-ethiopia-temporary-protected-status-18-months

Ninth Circuit Remands CAT Claim for Petitioner Viciously Beaten by Police

The Ninth Circuit has determined that a man who was viciously beaten by a group of men that included two police officers established that he was tortured by government officials.

The full text of De Leon Lopez v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/10/21/20-71529.pdf

Eighth Circuit Finds MN Definition of Cocaine Overbroad

The Eighth Circuit has determined that Minnesota’s definition of cocaine is broader than the federal definition because it includes isomers of cocaine not found in the federal statute. The court declined to apply the realistic probability test, finding the statutory language was unambiguous about the type of isomers criminalized in Minnesota.

The full text of US v. Owen can be found here:

https://ecf.ca8.uscourts.gov/opndir/22/10/213870P.pdf

Eighth Circuit Reaffirms that MO Unlawful Exhibition of Weapon Conviction is Crime of Violence

The Eighth Circuit has reaffirmed its precedent that a Missouri conviction for unlawful exhibition of a weapon is a crime of violence, even in light of the Supreme Court’s decision in Borden. The court noted that only a plurality of judges required that the violent force required be directed at another person, which Justice Thomas’ concurrence required only that intentional acts be an element of the offense.

The full text of US v. Larry can be found here:

https://ecf.ca8.uscourts.gov/opndir/22/10/213237P.pdf

Third Circuit Finds that PA Retail Theft Conviction is Aggravated Felony

The Third Circuit has determined that a Pennsylvania conviction for retail theft matches the generic definition of a theft aggravated felony. There is an interesting discussion of Pennsylvania’s use of “permissive inferences” in its penal code.

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

https://www2.ca3.uscourts.gov/opinarch/212094p.pdf

Second Circuit Addresses Proper Venue of PFR for Detained Petitioner

The Second Circuit has determined that a detainee in Louisiana, whose Notice to Appear was filed with the Jena, Louisiana Immigration Court, should have petitioned for review in the Fifth Circuit, even though the administrative control court (where documents were filed) and the Immigration Judge were in New York.

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

https://www.ca2.uscourts.gov/decisions/isysquery/badef993-7b32-42ae-827e-182eada348ec/7/doc/20-3836_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/badef993-7b32-42ae-827e-182eada348ec/7/hilite/

USCIS Announces TPS Extension and Redesignation for Burma

U.S.. Citizenship and Immigration Services (USCIS) has announced an extension of Temporary Protected Status (TPS) for Burma for an additional 18 months, from Nov. 26, 2022, through May 25, 2024, due to extraordinary and temporary conditions in Burma that prevent individuals from safely returning. In addition, USCIS announced a redesignation of Burma for TPS for the same reason, allowing Burmese nationals (and individuals having no nationality who last habitually resided in Burma) residing in the United States as of Sept. 25, 2022, to be eligible for TPS.

The announcement can be found here: https://www.uscis.gov/newsroom/news-releases/secretary-mayorkas-extends-and-redesignates-temporary-protected-status-for-burma

CA Court of Appeals Finds Counsel's Failure to Advise of Mandatory Immigration Consequences Justifies Vacatur

The California Court of Appeals has determined that a defense attorney’s failure to advise about mandatory deportation consequences justifies vacatur of the conviction.

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

http://sos.metnews.com/sos.cgi?0922//B315320

BIA Limits Use of 237(a)(1)(H) Waiver for Marriage Fraud

The Board of Immigration Appeals has limited the circumstances in which a non-citizen may seek a 237(a)(1)(H) waiver to address marriage fraud. Specifically, the waiver cannot be used when the non-citizen is charged with removability for termination of conditional residence when a joint Form I-751 wasn’t filed. In this case, the joint petition was filed, but the U.S.-citizen spouse withdrew her support, and the non-citizen subsequently filed an I-751 waiver based on a good faith marriage, which was denied by USCIS.

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

https://www.justice.gov/eoir/page/file/1541106/download

Ninth Circuit Reviews Visa Denial for Spouse of a US Citizen

The Ninth Circuit has rejected the government’s argument that it does not need to provide any factual basis for denying a visa to the spouse of a U.S. citizen on the ground that there is a reason to believe the person is coming to the United States to engage in criminal activity.

“We understand notice to be a key concern of Mandel’s facially legitimate and bona fide reason standard. We thus reject the government’s suggestion that it can comply with Cardenas’s ‘fact in the record’ formulation without providing the operative fact to a petitioner.”

In this case, the court was greatly concerned by the length of time it took the government to provide the “fact in the record.” “In reaching our conclusion in Cardenas, we noted that the consular officer himself ‘provided’ the reason within three weeks of the denial. Similarly, the visa applicant in Din was apprised of the reason for the denial—by reference to a statutory provision containing discrete factual predicates—within about a month of the denial. In this case, the government waited almost three years to provide comparable information to appellants and did so only when prompted by judicial proceedings.” “We thus conclude that, where the adjudication of a noncitizen’s visa application implicates the constitutional rights of a citizen, due process requires that the government provide the citizen with timely and adequate notice of a decision that will deprive the citizen of that interest.” “Our understanding of reasonable timeliness is informed by the 30-day period in which visa denials must be submitted for internal review and the 1-year period in which reconsideration is available upon the submission of additional evidence.”

“Because no ‘fact in the record’ justifying the denial of Asencio-Cordero’s visa was made available to appellants until nearly three years had elapsed after the denial, and until after litigation had begun, we conclude that the government did not meet the notice requirements of due process when it denied Asencio-Cordero’s visa. This failure means that the government is not entitled to invoke consular nonreviewability to shield its visa decision from judicial review. The district court may ‘look behind’ the government’s decision.”

The full text of Munoz v. U.S. Dept of State can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/10/05/21-55365.pdf

The Ninth Circuit has denied the government’s petition for rehearing en banc:

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/07/14/21-55365.pdf

Ninth Circuit Confirms FFOA Treatment Available for Probationary Terms Over One Year

The Ninth Circuit has confirmed that a first-time drug possession offense qualifies for Federal First Offender Act treatment even if the probationary term exceeded one year.

The full text of Lara-Garcia v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/09/26/20-71703.pdf

Ninth Circuit Assumes Jurisdiction to Review Hardship Determination in Cancellation of Removal

The Ninth Circuit has assumed that it has jurisdiction to review “a question of law or a mixed question of law and fact presented in a petition for review of an agency decision denying cancellation based on the absence of exceptional and extremely unusual hardship to family members.”
The full text of De La Rosa-Rodriguez v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/09/27/20-71923.pdf

The Ninth Circuit has granted en banc review in this case: https://cdn.ca9.uscourts.gov/datastore/opinions/2023/03/22/20-71923.pdf

Fifth Circuit Finds Petitioner Ineligible for VAWA Cancellation Due to Reinstated Removal Order

The Fifth Circuit has determined that a petitioner who is subject to a reinstated removal order is not eligible for VAWA cancellation of removal. The panel also suggested that there may not be jurisdiction to review the reinstatement order.

“Nasrallah and Johnson may mean that a petitioner who wishes to challenge a reinstatement order in federal court must file within 30 days of the reinstatement order—without waiting for withholding-only proceedings to conclude. That’s what the Second Circuit recently held in Bhaktibhai-Patel v. Garland, 32 F.4th 180, 190–95 (2d Cir. 2022). But even that conclusion relies on the premise that a reinstatement order is a final order of removal under Section 1252. Again, we have held that it is. That conclusion, too, may require reassessment in the wake of Nasrallah and Johnson. One might think that a reinstatement order is not a final order concluding that the alien is deportable or ordering deportation because a reinstatement order presupposes a prior order of removal and because the statute does not authorize a new removal order—it reinstates one from its original date.”

Though the court did not ultimately resolve this issue, but raised it for future litigants to consider.

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

https://www.ca5.uscourts.gov/opinions/pub/20/20-61133-CV0.pdf

First Circuit Denies Nunc Pro Tunc 212(c) Relief to Former LPR

The First Circuit has found that a former lawful permanent resident, who lost his status when he was deported, was not eligible for 212(c) relief in a subsequent removal proceeding because he was inadmissible under 8 USC 1182(a)(9)(C).

The full text of Reyes-Bautista v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/21-1111P-01A.pdf

Ninth Circuit Finds Evidentiary Hearing Necessary in Post-Conviction Matter

The Ninth Circuit has determined that a non-citizen is entitled to an evidentiary hearing on his ineffective assistance of counsel claim when the only evidence that his attorney provided inaccurate advice was his own affidavit.

With respect to whether the defendant would have rejected the plea had he been properly informed of the consequences, the court noted that that the judge’s advisal about possible removal and the plea agreement’s statement that removal was presumptively mandatory were not determinative on the issue of prejudice. “The record evidence contradicting Rodriguez’s argument is certainly strong. Rodriguez was told by the district court that removal was ‘a possible consequence’ of his plea and the plea agreement informed Rodriguez that his plea would make removal ;presumptively mandatory.’ But possibilities and presumptions are not conclusive, and even the plea agreement stated that ‘no one . . . can predict to a certainty the effect of [Rodriguez’s] conviction on his immigration status.’”

“When the court is faced with a fact-intensive analysis such as assessing whether a defendant would have gone to trial had he known the immigration consequences of his plea, and where the defendant presents some evidence not palpably false which suggests that he would have gone to trial, then it cannot be said that the record is conclusive against the defendant, nor can it be said that the defendant’s claim is ‘so palpably incredible or patently frivolous as to warrant summary dismissal.’ On these facts, it is ‘illogical’—and therefore an abuse of discretion—to deny an evidentiary hearing.”

The full text of US v. Rodriguez can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/09/23/21-15117.pdf