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BIA Addresses Insufficiency of a PCR Order

The Board of Immigration Appeals has addressed the insufficiency of a state court vacatur order, noting that the order did not specify the statute for vacatur, did not reference the allegations in the motion to vacate, and did not include any factual findings to support the vacatur order. The motion to vacate itself was not accompanied by any evidentiary support, such as sworn affidavits.

“Where a State court order granting a respondent’s motion to vacate a conviction does not indicate the reason for the vacatur, and there is no other basis in the record to independently establish the reason, the respondent has not satisfied his burden to show that the court vacated his conviction because of a substantive or procedural defect in his criminal proceedings. The bare fact that the State court granted the respondent’s motion does not establish the State court’s reason for doing so. Because the respondent has not demonstrated that the convictions underlying his removability were vacated because of a procedural or substantive defect in his criminal proceedings, we will deny his motion to reopen and terminate.”

The Board noted in a footnote that there is a split in authority over whether DHS or the respondent bears the burden of proving the basis of a vacatur in the motion to reopen context for a deported lawful permanent resident.

The full text of Matter of Azrag can be found here: https://www.justice.gov/d9/2024-02/4073.pdf

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Fourth Circuit Finds Mixed Credibility Finding to be Permissible

The Fourth Circuit has determined that an immigration judge may render a mixed credibility determination —deeming an applicant’s testimony credible as to one subject but not another. “In the case of a mixed credibility finding, a presumption of credibility should be applied by the Board on appeal concerning the portion of testimony not explicitly determined incredible.”

The full text of Ayala-Osegueda v. Garland can be found here: https://www.ca4.uscourts.gov/opinions/221707.P.pdf

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Fourth Circuit Finds that Adjustment Applicant Must Prove Admissibility by Clear and Convincing Evidence

The Fourth Circuit has affirmed that an applicant for adjustment of status must prove her admissibility by clear and convincing evidence. Nonetheless, in a footnote, the court recognized that the applicant in this case was the mother of a military servicemember and worked in an important profession, and suggested that the Department of Justice may wish to revisit its position in the case. The applicant had presented significant evidence that someone else had likely checked the “US citizen” box on her I-9.

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

https://www.ca4.uscourts.gov/opinions/222114.P.pdf

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First Circuit Addresses Family-Based Social Group Claim

The First Circuit has remanded an asylum application, noting that there is was no other basis in the record for the persecution alleged than family ties. “The fact that the cattle thieves were motivated in targeting Pineda-Maldonado in part to protect themselves, because they feared Pineda-Maldonado would retaliate against them, is not disputed by the parties. Butt hat fact does not in and of itself suffice to end the inquiry into whether family status was ‘a central reason’ for their having targeted him, any more than the fact that the cattle thieves sought money in targeting Pineda-Maldonado due to his father's debt could end such an inquiry.”

The full text of Pineda-Maldonado v. Garland can be found here: http://media.ca1.uscourts.gov/pdf.opinions/20-1912P-01A.pdf

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BIA Finds that Pre-trial Release does not Preclude Civil Immigration Detention

The Board of Immigration Appeals (Board) has determined that the agency is not estopped from detaining a non-citizen in immigration custody without bond simply because a magistrate released him on pre-trial bail in a federal criminal proceeding. The Board noted that the criminal proceedings, the government bears the burden of proving a defendant is a flight risk or danger to the community to justify detention without bail, while in the immigration context, the non-citizen bears the burden of proving he is not a flight risk or danger to the community to justify the granting of bond.

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

https://www.justice.gov/d9/2024-01/4070.pdf

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Ninth Circuit Addresses Justifiable Delay by Domestic Violence Survivor

The Ninth Circuit has remanded a case to the agency to reevaluate a petitioner’s evidence of her delay in meeting a filing deadline. “Rodriguez was in the process of gathering evidence when she fled her abusive partner and was no longer able to access the documents that she had already collected. That evidence became unavailable once she became homeless, destitute, and unable to contact her attorney. Moreover, we see no reason to penalize Rodriguez for failing to meet a December 2017 deadline that the IJ vacated and extended to September 2018, particularly because neither party has asked us to do so. The BIA should therefore decide on remand whether any evidence that Rodriguez might have been able to access years earlier but that became unavailable more than ten months before the September 2018 filing deadline was still ‘reasonably available’ to her as the deadline approached.”

The full text of Alcarez-Rodriguez v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2023/12/28/21-411.pdf

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First Circuit Rejects Agency Circularity Analysis

The First Circuit has rejected the agency’s determination that an asylum applicant’s proposed social group was impermissibly circular simply because it referenced harm in its definition. “If an applicant's proffered social group, examined without consideration of the potentially circular language, shares independent socially distinctive characteristics, then neither the IJ nor the BIA may reject the group as legally invalid without further substantive analysis.”


The full text of Espinoza-Ochoa v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/21-1431P-01A.pdf

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Eighth Circuit Finds Hiring a Person under 16 for Sex to be Aggravated Felony

The Eighth Circuit has determined that a Minnesota conviction for intentionally hiring or offering or agreeing to hire an individual who the defendant reasonably believed to be under the age of 16 years but at least 13 years to engage in sexual penetration or sexual contact is a sexual abuse of a minor aggravated felony.

The full text of Aguilar-Sanchez v. Garland can be found here:

http://media.ca8.uscourts.gov/opndir/23/12/223598P.pdf

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The Seventh Circuit Finds that KY Conviction for Complicity to Robbery in the First Degree is COV

The Seventh Circuit has determined that a Kentucky conviction for complicity to robbery in the first degree is a crime of violence. In so doing, the court concluded that Kentucky’s complicity statute is a categorical match for generic aiding-and-abetting liability; that Kentucky’s first-degree robbery statute requires sufficient force to overcome the victim’s will; and that the robbery statute requires that an individual use force with the specific intent to accomplish theft.

The full text of Mwendapeke v. Garland can be found here: https://media.ca7.uscourts.gov/cgi-bin/OpinionsWeb/processWebInputExternal.pl?Submit=Display&Path=Y2023/D12-07/C:22-2383:J:Brennan:aut:T:fnOp:N:3140778:S:0

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Sixth Circuit Remands Gender Violence Claim of Indigenous Woman for Further Analysis

The Sixth Circuit has remanded the asylum claim of an indigenous Guatemalan woman to further analyze if she was persecuted on account of her membership in two social groups: 1) Guatemalan Chuj Women in domestic relationships who are unable to leave; and (2) Guatemalan Chuj Women who are viewed as property by virtue of their positions within a domestic relationship.

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

http://media.ca7.uscourts.gov/opinion.html

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Fifth Circuit Reverses Course, Finds Jurisdiction over Denied Withholding/CAT

The Fifth Circuit has reversed its prior decision and determined that it has jurisdiction to review the agency’s denial of withholding of removal and protection under the Convention against Torture to a non-citizen subject to a reinstatement order, so long as the petition for review is filed within 30 days of the Board of Immigration Appeals’ decision. The opinion also contains an excellent analysis of when threats rise to the level of persecution, and how to articulate sufficient nexus in a “mixed motives” analysis.

The full text of Argueta-Hernandez v. Garland can be found here: https://www.ca5.uscourts.gov/opinions/pub/22/22-60307-CV1.pdf

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Second Circuit Finds that NY Possession for Sale is not a Controlled Substance Offense

The Second Circuit has determined that a New York conviction for possession for sale of a controlled substance is not a controlled substance offense because it criminalizes possession of several cocaine isomers not found in the federal drug statutes and the statute is indivisible.

The full text of US v. Chaires can be found here: https://ww3.ca2.uscourts.gov/decisions/isysquery/a3eff4c5-8ea3-4d44-b8f2-ca139dc304b1/11/doc/20-4162_complete_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/a3eff4c5-8ea3-4d44-b8f2-ca139dc304b1/11/hilite/

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