BIA Narrows Relief for Family-Based Particular Social Groups

The Board of Immigration Appeals has again narrowed the circumstances in which an asylum applicant can establish the requisite nexus between persecution and the particular social group comprised of the applicant’s family. “In our view, the Tenth Circuit’s approach is the proper way to analyze whether membership in a family-based particular social group is one central reason for harm. The question asked under the Fourth Circuit’s approach—why an applicant, and not others, is targeted—is relevant in evaluating the reasons for harm, but it is not the end of the analysis. When a persecutor targets multiple members of a single family, their family membership may be a reason for harming them, especially when non-family members are not similarly targeted. However, the fact that family membership is a reason for harm does not mean that it is necessarily one central reason. If a persecutor is targeting members of a certain family as a means of achieving some other ultimate goal unrelated to the protected ground, family membership is incidental or subordinate to that other ultimate goal and therefore not one central reason for the harm. Likewise, when a persecutor’s threats to harm family members are contingent on one or more of the family members acting or failing to act in a certain way—such as failing to comply with demands for money or other property—family membership is unlikely to be one central reason for that harm and instead will be merely a means to another end.”

The full text of Matter of M-R-M-S- can be found here:

https://www.justice.gov/d9/2023-12/4068.pdf

Ninth Circuit Finds that Idaho Conviction for Possession with Intent to Deliver is an Aggravated Felony

The Ninth Circuit has determined that Idaho conviction for possession with intent to deliver a controlled substance is an aggravated felony. First, the court determined the statute is divisible with respect to the identity of the drug. Second, the court found that Idaho’s mens rea requirement matches the federal requirements. Third, the court found that Idaho’s aiding and abetting liability is no broader than the federal counterpart.

The full text of Tellez-Ramirez v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/11/29/22-1168.pdf

Ninth Circuit Affirms Visa Availability Rules

The Ninth Circuit has affirmed that visa must be available both at the an adjustment of status application is filed and when it is adjudicated.

The full next of Babaria v. Blinken can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/12/01/22-16700.pdf

Eighth Circuit Finds that Arizona Kidnapping is Crime of Violence

The Eighth Circuit has concluded that an Arizona kidnapping conviction qualifies as a crime of violence because it requires the use of force against the victim (unless the victim is a minor or incompetent).

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

http://media.ca8.uscourts.gov/opndir/23/11/231077P.pdf

Ninth Circuit Declines to Extend Miranda Warning Requirements into Civil Immigration Proceedings

The Ninth Circuit declined to find that a non-citizen’s inculpatory statements should be suppressed in removal proceedings because he was arrested pursuant to an administrative warrant and did not receive Miranda warnings.

The full text of Zuniga de la Cruz v. Garland can be found here:

https://www.ca4.uscourts.gov/opinions/221221.P.pdf

Fourth Circuit Addresses Finality of a Reinstatement Order

The Fourth Circuit has determined that it has no jurisdiction over a petition for review challenging the denial of withholding of removal and protection under the Convention against Torture filed by a non-citizen subject to a reinstated removal order. The court assumed, without deciding, that a reinstatement order is a final order for jurisdictional purposes, but found that the petition for review as filed more than 30 days after the issuance of the reinstatement order.

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

https://www.ca4.uscourts.gov/opinions/221221.P.pdf

First Circuit Finds Notice to Attorney of Visa Revocation was Sufficient

The First Circuit has determined that serving the attorney who filed a VAWA self-petition with notice of intent to revoke the approval of that petition is sufficient to provide notice the applicant of the intended revocation. The full text of Manguriu v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/22-1220P-01A.pdf

Second Circuit Finds that Arkansas Conviction for Abuse of a Corpse is not Categorically a CIMT

The Second Circuit has determined that an Arkansas conviction for abuse of a corpse is not categorically a crime involving moral turpitude because it includes mere disinterment of a corpse. The court also concluded that the statute is divisible between disinterment and mistreatment of a corpse.

The full text of Giron-Molina v. Garland can be found here:

https://ww3.ca2.uscourts.gov/decisions/isysquery/db521802-9889-4682-9b27-66095f2ebbfd/7/doc/22-6243_amd_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/db521802-9889-4682-9b27-66095f2ebbfd/7/hilite/

BIA Addresses Effect of Late-Filed Appeals in NY

The Board of Immigration Appeals has determined that because an appeal accepted under section 460.30 of the New York Criminal Procedure Law is classified as a direct appeal, a respondent with a pending appeal under this section does not have a final conviction for immigration purposes.

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

https://www.justice.gov/d9/2023-10/4067.pdf

USCIS Redesignates TPS for Cameroon

U.S. Citizenship and Immigration Services has redesignated Temporary Protected Status for Cameroon. Cameroonian citizens who continuously resided in the US since October 5, 2023 (and who are otherwise eligible) may now apply.

The full announcement can be found here:

https://www.dhs.gov/news/2023/10/06/secretary-mayorkas-announces-extension-and-redesignation-cameroon-temporary

CA Fourth Appellate District Finds that Receipt of Stolen Property Misdemeanor is not CIMT or Aggravated Felony, Reverses Vacatur

The California Court of Appeals, Fourth Appellate District, has reversed the vacatur of a misdemeanor conviction for receipt of stolen property, finding that the conviction was neither an aggravated felony nor a crime involving moral turpitude. As such, the defendant - a lawful permanent resident - had not established by a preponderance of the evidence that the conviction was causing an adverse immigration consequence.

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

http://sos.metnews.com/sos.cgi?1023//E079703

Eleventh Circuit Finds that MA Armed Robbery Conviction is Theft Offense

The Eleventh Circuit has determined that a Massachusetts robbery conviction is a theft related aggravated felony. The offense of armed robbery under entails a number of elements. The prosecution must prove that (1) the defendant was armed with a dangerous weapon (though it need not be used); (2) the defendant either applied actual force or violence to the body of the person identified in the indictment, or by words or gestures put him in fear (i.e., the defendant committed an assault on that person); and (3) the defendant took the money or the property of another with intent to steal it.

“These elements, under the categorical approach, match the generic definition of theft. Generic theft requires taking the property of another without consent and with intent to steal. The third element of armed robbery under § 17— the taking of property with the intent to steal—matches two of the requirements of a generic theft offense—i.e., the taking of property with the criminal intent to deprive the victim of the rights and benefits of ownership. And the second element of armed robbery under § 17—the taking of property by the use of force or by putting the victim in fear—matches the generic theft requirement that the taking be without the consent of the victim. Massachusetts law teaches that ‘[t]he essence of robbery is the exertion of force, actual or constructive, against another in order to take personal property . . . which is so within his reach . . . that he could, if not overcome by violence or prevented by fear, retain his possession of it. This understanding satisfies the ‘without consent’ requirement of generic theft.”

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

https://media.ca11.uscourts.gov/opinions/pub/files/202112743.pdf

Ninth Circuit Finds Voluntary Manslaughter is Crime of Violence

The Ninth Circuit has determined that a federal conviction for voluntary manslaughter is a crime of violence. In a footnote, the court noted that its caselaw determining that California’s voluntary manslaughter statute is not a crime of violence is no longer tenable in light of intervening caselaw.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/10/17/17-15104.pdf

Ninth Circuit Finds that GA Aggravated Assault is Crime of Violence

The Ninth Circuit has determined that Georgia’s aggravated assault statute is divisible as compared to the definition of a crime of violence. Aggravated assault under Georgia law has two elements: (1) commission of a simple assault and (2) the presence of one statutory aggravator. Simple assault can be committed in one of two ways: (1) attempting to commit a violent injury to the person of another; or (2) committing an act which places another in reasonable apprehension of immediately receiving a violent injury.

Applying the modified categorical approach, the Court determined that Barlow had been convicted of simple assault committed with a deadly weapon. Barlow asserted that his conviction rested upon the least of the acts criminalized by the statute, placing another in apprehension of receiving a violent injury. “[W]e need not decide whether a reasonable apprehension form of simple assault constitutes a ‘crime of violence’ because Barlow’s indictment confirms that he committed the assault ‘by striking [the victim] with said handgun’ and ‘by shooting [the victim] with said handgun,’ not by placing the victim in reasonable apprehension of receiving a violent injury.” “[T]hat is, [] Barlow ‘attempt[ed] to commit a violent injury to the person of another.’” “We therefore hold that Barlow’s conviction for aggravated assault necessarily has as an element the use, attempted use, or threatened use of physical force against the person of another, and therefore qualifies as a ‘crime of violence’ under the elements clause.”

The full text of US v. Barlow can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2023/10/04/22-30030.pdf

Eighth Circuit Rejects "Guatemalan Children who are Witnesses to Gang Crime” as a PSG

The Eighth Circuit has rejected "Guatemalan children who are witnesses to gang crime” as a particular social group for asylum purposes. “The BIA rejected this proposed social group for lack of particularity because the term ‘children’ is ‘vague and amorphous.’ Indeed, ‘children’ could mean minor children of Guatemalan nationals, or it could mean individuals of any age who were born of Guatemalan parents. If Pacheco-Mota intended the former definition, he does not fall within its scope—he was eighteen at the time of his first hearing before the IJ. If Pacheco-Mota intended the latter definition—any person of any age who is the child of Guatemalan parents—it is far too amorphous and overbroad to satisfy the particularity requirement. Pacheco-Mota’s proposed social group also fails for lack of social distinction. If we grant Pacheco-Mota the benefit of the broader definition of ‘children,’ the proposed social group is, in effect, all Guatemalan ‘witnesses to gang crime.’ Pacheco-Mota did not introduce evidence establishing that Guatemalan society ‘in general perceives, considers, or recognizes persons sharing the particular characteristic’ of gang crime witnesses as a distinct group.”

The full text of Pachecho-Mota v. Garland can be found here: http://media.ca8.uscourts.gov/opndir/23/10/223651P.pdf

Second Circuit Applies Sanchez Sosa to Motion to Remand

The Second Circuit has applied the factors outlined in Matter of Sanchez Sosa - which typically apply to a motion to continue due to a pending U visa application - to a motion to remand a case pending before the Board of Immigration Appeals.

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

https://ww3.ca2.uscourts.gov/decisions/isysquery/24e4fa91-b28a-4a67-a25f-47efb157f491/10/doc/21-6043_amd_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/24e4fa91-b28a-4a67-a25f-47efb157f491/10/hilite/

Third Circuit Finds PA DUI Statute Indivisible

The Third Circuit has determined that Pennsylvania’s DUI statute - which criminalizes driving under the influence of controlled substances - is overbroad and indivisible with respect to the identify of the substances the person was using. The court noted that under state law, jurors do not to unanimously agree what substance a defendant is under the influence of to convict.

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

https://www2.ca3.uscourts.gov/opinarch/203307p.pdf

BIA Finds that Conditional Parole does not Meet Requirements for Cuban Adjustment Act

The Board of Immigration Appeals has determined that a non-citizen who enters without inspection, is detained, placed in removal proceedings, and then released on conditional parole, is not eligible for permanent residency under the Cuban Adjustment Act.

The full text of Matter of Cabrera-Fernandez can be found here:

https://www.justice.gov/eoir/page/file/1595041/download

Ninth Circuit Confirms that Date of Commission of Inadmissible Offense Triggers Stop-Time Rule

The Ninth Circuit has confirmed that the date of commission of an inadmissible offense - not the date of conviction - is what triggers the stop-time rule for cancellation of removal.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/09/14/21-1098.pdf

Ninth Circuit Clarifies Standard for Family-Based PSG Nexus

The Ninth Circuit has clarified that a petitioner does not need to show that his relatives experienced persecution on the basis of their family membership in order to show that he himself might experience persecution as their relative. In this case, the petitioner expressed fear of persecution because of his family ties to members of an Autodefensora group, and the Immigration Judge found that the uncles who were members of the group had experienced persecution because of the membership in the group, not because of their family ties. The Ninth Circuit found that reasoning unpersuasive. “Thus, even assuming all of Blancas Hermosillo’s uncles were harmed only because of their Autodefensa memberships and not their familial relationships, that does not foreclose the possibility that Blancas Hermosillo will experience persecution as a relative of the Autodefensa leader and other members.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/09/14/18-71220.pdf