These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
Asylum
The Attorney General has directed the Board of Immigration Appeals to review de novo if the Immigration Judge’s factual findings establish all of the elements of an asylum claim, and to not accept the parties’ stipulation that certain elements of the claim have been established.
The full text of Matter of A-C-A-A- can be found here:
The Fourth Circuit has determined that new facts that provide additional support for a pre-existing asylum claim can constitute a changed circumstance. An applicant need not demonstrate that he did not have a valid asylum claim prior to the changed circumstance.
The full text of Romero Zambrano v. Sessions can be found here:
The Board of Immigration Appeals has determined that an Immigration Judge does not have authority to terminate removal proceedings to give an arriving alien an opportunity to present an asylum claim to the Department of Homeland Security in the first instance. The Department of Homeland Security has the exclusive discretion whether to subject such individuals to the credible fear process or whether to initiate removal proceedings, and once a charging document has been filed, the Immigration Judge has exclusive jurisdiction over the asylum application.
The full text of Matter of J-A-B- & I-J-V-A can be found here:
The Seventh Circuit overruled its prior decision holding that a petitioner in reinstatement proceedings does not have standing to challenge the statute and regulation that ban him from applying for asylum. However, in reaching the merits of the claim, the court determined that the statute clearly renders such a petitioner ineligible for asylum.
The full text of Garcia v. Sessions can be found here:
The Fourth Circuit has upheld the denial of an asylum claim based on family membership, finding that the petitioner was threatened because of a personal dispute with her mother-in-law (who wanted custody of her minor child) and not on account of her family ties. In so doing, the court distinguished its prior precedent regarding family-based asylum claims.
"Although the familial relationships at issue in Hernandez-Avalos and the present case involve a mother’s relationship with her son, this case is unlike Hernandez-Avalos in critical respects. In Hernandez-Avalos, a non-familial third party persecuted the petitioner because of her family association for the purpose of gang recruitment. In contrast, Velasquez had a long-standing personal disagreement with Estrada over a solely personal conflict regarding D.A.E.V. Estrada’s persecution of Velasquez was only between the two of them—that is, merely incidental to Estrada’s desire to obtain custody of D.A.E.V."
The full text of Valesquez v. Sessions can be found here:
The Seventh Circuit has found that an individual subject to a reinstated order of removal, and thus, who is ineligible under the regulations to apply for asylum, has no standing to challenge that regulation because asylum is a discretionary form of relief.
The full text of Garcia v. Sessions can be found here:
The Third Circuit has determined that an individual subject to a reinstated order of removal may not apply for asylum, but is instead limited to applying for withholding of removal and protection under the Convention Against Torture.
The full text of Cazun v. Attorney General can be found here:
http://www2.ca3.uscourts.gov/opinarch/153374p.pdf
In an unpublished decision, the Ninth Circuit determined that the return of an applicant's abusive spouse to her home country could qualify as changed country conditions that warranted reopening of her proceedings.
The full text of Lopez v. Sessions can be found here:
https://cdn.ca9.uscourts.gov/datastore/memoranda/2017/04/27/11-70271.pdf
In an unpublished decision, the Ninth Circuit has applied the rationale of Bringas-Rodriguez to an asylum applicant whose claim was based on a future fear of harm, and not on past persecution. Thus, even in cases involving future persecution, courts must consider that legislative developments in Mexico cannot be conflated with "on-the-ground progress" regarding the treatment of the LGBT community.
The decision in Hernandez v. Sessions can be found here:
https://cdn.ca9.uscourts.gov/datastore/memoranda/2017/04/20/13-71356.pdf
The Second Circuit has deferred to the Board of Immigration Appeals' decision in Matter of F-P-R-, which held that the one year filing deadline for asylum must be calculated from the applicant's last entry into the United States. In so doing, the court overruled its prior precedent, which held that the filing deadline would not be tolled by a brief departure from the United States.
The full text of Linares-Urrutia v. Sessions can be found here:
The First Circuit affirmed the agency's decision. "[T]he record adequately supports the IJ's finding –– which the BIA accepted –– that the threats against Marín stemmed not from Marín's kinship ties per se, but rather from what Marín did and Cuellar's desire in response either to seek retaliation against Marín or to seek to stop Marín because Cuellar believes that Marín's family may come after him. The mere fact that Cuellar exclusively targeted members of Marín's family does not, as Marín argues, mean that the only logical inference is that kinship ties, rather than the desire for retaliation or deterrence, prompted Cuellar's threats."
The decision betrays a fundamental misunderstanding of family-based particular social groups. Cuellar's anger against Marin and his family was directly tied into their kinship ties to Marin's father, who Cuellar murdered. Thus, but-for Marin's kinship ties to his father, he would not have been targeted. It's important to remember that Marin was not required to show that his kinship ties were the sole motivation for Cuellar's persecution, only that it was one central reason for the persecution.
The full text of Marin v. Lynch can be found here:
The Eighth Circuit determined that an Immigration Judge did not violate the rights of a represented individual by failing to advise him of his right to apply for asylum. The individual had repeatedly stated that his country suffered from a lot of violence, but had not explicitly stated a fear of returning to his country.
The full text of Rivas-Quilizapa v. Lynch can be found here:
The petitioner was threatened with harm on account of her relationship to her uncle, who had been extorted by gang members. However, because the petitioner testified that the sole reason the gang had targeted her uncle was to extort money from him, not because he belonged to her family, the Eighth Circuit found that any harm she might suffer would not be account of her family ties. The court also deemed the group insufficiently particularized because it was "unclear whether the gang members were attempting to threaten Milian's nuclear family, her uncle's family, or their entire extended family."
The full text of Milian v. Lynch can be found here:
http://media.ca8.uscourts.gov/opndir/16/06/152825P.pdf
The Ninth Circuit has withdrawn its opinion in Bringas-Rodriguez v. Lynch and agreed to rehear the case en banc. The decision was widely viewed as severely limited asylum-related relief for gay men from Mexico.
The order granting rehearing en banc can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/06/14/13-72682ebo.pdf
My original blog post on the decision can be found here: http://www.sabrinadamast.com/journal/2015/11/22/ninth-circuit-denies-asylum-related-relief-for-gay-male-from-mexico
The Eleventh Circuit has determined that a reinstated order of removal is not administratively final until the conclusion of any reasonable fear proceedings (and by extension, any withholding of removal and protection under the Convention Against Torture proceedings). In addition, the Court joined the Fifth and Second Circuits in finding that a non-citizen in reinstatement proceedings is not eligible for asylum.
The full text of Jimenez-Morales v. Attorney General can be found here: http://media.ca11.uscourts.gov/opinions/pub/files/201415359.pdf
In a published decision, the Eighth Circuit rejected the proposed social group of “Guatemalan repatriates who have lived and worked in the United States for many years and are perceived to be wealthy,” deeming it to be insufficiently particularized because because it turns on whether an individual is perceived as being wealthy. The Court noted that the petitioner presented no evidence “that wealthy Guatemalans were recognized as a group that is at a greater risk of crime in general or of extortion or robbery in particular.”
Though disappointing, the decision still leaves open the possibility that proof that wealthy Guatemalans are a higher risk of crime may persuade the Court to reconsider the cognizability of this social group.
The full text of Cinto-Velasquez v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/16/03/151198P.pdf
Vladimir Ernesto Ortega Oliva joined the MS-13 gang, but after witnessing the extreme violence of gang life, decided to become more involved with his church and become an "inactive" gang member. MS-13 would allow members who became active in the church to become inactive, but still required them to pay "la renta" to support the gang's activities. Oliva paid this extortion fee for 7 or 8 years, but eventually stopped paying. MS-13 members beat him severely and threatened to kill him if he didn't begin paying again.
Oliva applied for asylum, arguing that his life would be threatened because of his membership in one of two particular social groups: (1) “Salvadorans who are former members of MS-13 and who left the gang, without its permission, for moral and religious reasons,” and (2) “Salvadorans who were recruited to be members of MS-13 as children and who left the gang as minors, without its permission, for moral and religious reasons.” The Board of Immigration Appeals determined that "Oliva’s fear of persecution was not on account of his becoming an inactive gang member, but because of 'his specific conduct of violating the [gang’s] rules'—namely refusing to pay rent."
On appeal, the Fourth Circuit held that "[t]his was an overly restrictive view of Oliva’s case. A close examination of the record illuminates the inextricable relationship between Oliva’s membership in his proposed social groups and his refusal to pay rent." The court also determined that extortion can qualify as persecution, even if the victim will only be physically harmed if he stops paying the extortion fee.
The full text of Oliva v. Lynch can be found here: http://www.ca4.uscourts.gov/Opinions/Published/141780.P.pdf
In a published decision, the Seventh Circuit affirmed the denial of asylum to an applicant who provided credible testimony, but who failed to provide sufficient corroborating documentation of the harm he suffered in Mongolia and the reasons he did not apply for asylum in several other countries that he traveled to. This decision reinforces that the REAL ID Act permits, but does not require, an Immigration Judge to grant an asylum application when the applicant provides credible testimony, but does not provide reasonably available corroborating documentation.
The full text of Darinchuluun v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D10-08/C:14-2212:J:Ripple:aut:T:fnOp:N:1636163:S:0
In a very succinct and logical opinion, the Seventh Circuit undermined an Immigration Judge's adverse credibility determination, one alleged inconsistency at a time. For each perceived inconsistency, the court explained why the cited statements did not cast doubt on the applicant's credibility. In addition, the court tore apart the Immigration Judge's list of corroborating documentation, finding each of the proposed items to be unreasonable.
The decision is a fantastic template for how to draft a straightforward and persuasive appeal of an adverse credibility determination.
The full text of Liu v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D06-11/C:14-2354:J:Flaum:aut:T:fnOp:N:1568189:S:0
In Sesay v. Attorney General, the Third Circuit, faced with the tragic plight of a citizen of Sierra Leone forced to perform menial tasks for a rebel group who repeatedly beat him, affirmed the Board of Immigration Appeals' determination that Sesay's actions qualified as material support to a terrorist group. Moreover, the Court declined to read a duress exception into the statute, and noted that only the Department of Homeland Security has the authority to waive the material support bar based on duress.
The full text of Sesay v. Attorney General can be found here: http://www2.ca3.uscourts.gov/opinarch/142996p.pdf
