Eighth Circuit Holds Equitable Tolling Unavailable for the Petition for Review Deadline

The Eighth Circuit has dismissed a petition for review filed by a Guatemalan man challenging only the denial of deferral of removal under the Convention Against Torture, holding that it lacks jurisdiction to review a standalone CAT order and that, in any event, his petition was untimely by roughly five years measured from his final administrative removal order.

The Court held that a CAT order never merges into a final order of removal and so cannot independently support jurisdiction under 8 U.S.C. § 1252(a)(1), joining the Eleventh and Ninth Circuits. Splitting from the Fourth, Sixth, and Seventh Circuits, the Court also held that the thirty-day filing deadline in 8 U.S.C. § 1252(b)(1) is a mandatory claims-processing rule not subject to equitable tolling, reasoning that Congress's use of "must" and "not later than" and its goal of expediting removal for noncitizens convicted of aggravated felonies rebut the ordinary presumption favoring tolling.

The full text of B.P. v. Blanche can be found here: https://ecf.ca8.uscourts.gov/opndir/26/09/252778P.pdf

Eighth Circuit Holds It Lacks Jurisdiction Over a Standalone Negative Reasonable Fear Finding

The Eighth Circuit has dismissed for lack of jurisdiction a petition for review filed by a Mexican woman challenging an immigration judge's affirmance of an asylum officer's negative reasonable fear determination, which barred her from pursuing withholding-only proceedings after her prior removal order was reinstated.

The Court held that a decision finding no reasonable fear neither concludes that the noncitizen is deportable nor disturbs the validity of the underlying reinstated removal order, so it does not merge into or constitute a final order of removal reviewable under 8 U.S.C. § 1252(a)(1). The Court expressly disagreed with a contrary Third Circuit majority decision and noted that the petitioner had chosen not to separately petition for review of the reinstatement order itself.

The full text of Sebastian-Perez v. Blanche can be found here: https://ecf.ca8.uscourts.gov/opndir/26/09/251691P.pdf

Eighth Circuit Holds Texas Robbery Conviction Is Not a Sentencing Guidelines Crime of Violence

The Eighth Circuit has vacated a felon-in-possession sentence enhanced based on a prior Texas robbery conviction, holding that the offense does not qualify as a crime of violence because it can be committed with a reckless mental state.

The full text of United States v. Benavidez can be found here: https://ecf.ca8.uscourts.gov/opndir/26/09/252497P.pdf

Eighth Circuit Holds Felony Assault of a Federal Officer Involving Only Offensive Contact Is Not a Crime of Violence

The Eighth Circuit has vacated a felon-in-possession sentence enhanced based on prior felony convictions for forcibly assaulting federal officers, holding that a felony conviction under 18 U.S.C. § 111(a)(1) does not categorically require the violent physical force needed to qualify as a Sentencing Guidelines crime of violence.

The Court held that the statute's felony tier can be satisfied by mere intentional and offensive physical contact that a reasonable person would find objectionable, without any showing that the contact was capable of causing pain or injury, distinguishing the offense from other assault statutes requiring proof that the victim was placed in fear of imminent bodily harm. The Court remanded for resentencing under a corrected Guidelines range.

The full text of United States v. McIntosh can be found here: https://ecf.ca8.uscourts.gov/opndir/26/08/252394P.pdf

Eighth Circuit Denies Asylum Where Domestic Abuser's Violence Was Not Shown to Target Gender

The Eighth Circuit has denied a petition for review filed by a Guatemalan mother and son fleeing a violently abusive partner, holding that substantial evidence supported the agency's finding that the partner's abuse was not shown to be centrally motivated by the petitioner's membership in proposed social groups of Guatemalan women.

The Court held the record instead supported that the partner's violence correlated with his substance abuse and jealousy-driven accusations of infidelity, patterns the court had previously found insufficient to establish nexus in a similar case, and that Guatemala's establishment of victim service centers, femicide criminalization, and specialized courts undercut the petitioner's claim that the government would acquiesce in any future torture.

The full text of Matias-Pablo v. Blanche can be found here: https://ecf.ca8.uscourts.gov/opndir/26/08/252021P.pdf

Eighth Circuit Reaffirms Missouri Weapon-Exhibition Offense Is a Guidelines Crime of Violence

The Eighth Circuit has affirmed a felon-in-possession sentence enhanced based on a prior Missouri conviction for unlawfully exhibiting a weapon in an angry or threatening manner, rejecting the defendant's argument that the Supreme Court's decision in Delligatti v. United States undermined circuit precedent holding the offense a crime of violence.

The Court held that its prior decision in United States v. Pulliam already recognized, consistent with Delligatti, that the object of the required force must be a person, and that Missouri's own courts have equated exhibiting a weapon in the presence of others with an assault against those bystanders. The Court also found no clear error in the district court's identification of the specific subdivision of the divisible Missouri statute underlying the defendant's plea.

The full text of United States v. Verges can be found here: https://ecf.ca8.uscourts.gov/opndir/26/08/252033P.pdf

Eighth Circuit Invalidates Departure Bar on Statutory Motions to Reopen

The Eighth Circuit has granted in part a petition for review filed by a Filipino lawful permanent resident removed based on two since-vacated California convictions, holding that the regulatory "departure bar" cannot be used to deny a statutory motion to reopen filed after the noncitizen has already been removed.

Joining every other circuit to address the question, the Court held that 8 U.S.C. § 1229a(c)(7) contains no geographic limitation on who may file a motion to reopen, and that the BIA's regulation barring post-departure motions conflicts with that statutory grant, especially now that Loper Bright forecloses deference to the agency's contrary interpretation. The Court remanded for the BIA to consider the merits of the motion, which is based on the vacatur of the petitioner's underlying criminal convictions, while confirming that courts still lack jurisdiction to review the separate denial of sua sponte reopening.

The full text of Lacsina v. Blanche can be found here: https://ecf.ca8.uscourts.gov/opndir/26/08/243373P.pdf

Eighth Circuit Invalidates Departure Bar on Statutory Motions to Reopen

The Eighth Circuit has granted in part a petition for review filed by a Filipino lawful permanent resident removed based on two since-vacated California convictions, holding that the regulatory "departure bar" cannot be used to deny a statutory motion to reopen filed after the noncitizen has already been removed.

Joining every other circuit to address the question, the Court held that 8 U.S.C. § 1229a(c)(7) contains no geographic limitation on who may file a motion to reopen, and that the BIA's regulation barring post-departure motions conflicts with that statutory grant, especially now that Loper Bright forecloses deference to the agency's contrary interpretation. The Court remanded for the BIA to consider the merits of the motion, which is based on the vacatur of the petitioner's underlying criminal convictions, while confirming that courts still lack jurisdiction to review the separate denial of sua sponte reopening.

The full text of Lacsina v. Blanche can be found here: https://ecf.ca8.uscourts.gov/opndir/26/08/243373P.pdf

Eighth Circuit Denies Review Where Cancellation of Removal Arguments Were Not Exhausted

The Eighth Circuit has denied a petition for review filed by a Guatemalan woman found ineligible for cancellation of removal based on a Nebraska conviction for negligent child abuse of her stepdaughter. Before the agency, she argued only that her conviction did not match the generic federal definition of a crime of child abuse; before the court, she raised entirely new arguments, including that the agency relied on the wrong statutory provision and overlooked a petty-offense exception.

The Court held that these new arguments were unexhausted because the petitioner never raised them in her adversarial, counseled proceedings before the immigration judge and the Board. Since a reviewing court is one of review and not first view, the Court declined to consider arguments the agency never had the opportunity to address and denied the petition.

The full text of Lopez-Lopez v. Blanche can be found here: https://ecf.ca8.uscourts.gov/opndir/26/07/251924P.pdf

Eighth Circuit Holds Minnesota Third-Degree Murder Is a Crime of Violence Under the Guidelines

The Eighth Circuit has affirmed a fifteen-year mandatory minimum sentence for a felon-in-possession defendant whose prior Minnesota conviction for third-degree murder was used to enhance his Sentencing Guidelines range. The defendant argued the district court erred in treating his 2012 conviction as a "crime of violence" under U.S.S.G. § 4B1.2(a).

Adopting the Third Circuit's definition of generic murder as encompassing intentional killing, killing during a dangerous felony, or killing through reckless and depraved indifference to human life, the Court held that Minnesota's third-degree murder statute, which criminalizes causing death through an act "eminently dangerous to others" showing a "depraved mind," substantially corresponds to that generic definition. Because the conviction qualified as murder under the enumerated offenses clause, the Court did not need to consider whether it also satisfied the Guidelines' separate force clause.

Although this is a criminal sentencing matter, it is likely to be persuasive when analyzing whether convictions qualify as aggravated felonies related to murder in the immigration context.

The full text of United States v. Hayden can be found here: https://ecf.ca8.uscourts.gov/opndir/26/07/251880P.pdf

Eighth Circuit Applies Substantial Evidence Review to Cancellation Hardship Determination

The Eighth Circuit has denied a petition for review filed by a Guatemalan mother of six U.S. citizen children who sought cancellation of removal after living in the United States for approximately twenty years. The petitioner argued that her removal would cause qualifying hardship to her children.

The Court adopted substantial evidence review for cancellation hardship determinations after Wilkinson and concluded that the record did not compel a finding of exceptional and extremely unusual hardship. The Court also rejected the petitioner’s due process arguments, finding no liberty interest in discretionary cancellation of removal, and found that her voluntary departure argument was moot because she had already been removed.

The full text of Lopez-Vasquez v. Blanche can be found here: https://ecf.ca8.uscourts.gov/opndir/26/05/251338P.pdf

Eighth Circuit Finds that Non-Citizens who Enter Without Inspection are Subject to Mandatory Detention

The Eight Circuit, joining the Fifth Circuit and splitting from the Seventh Circuit, has determined that all non-citizens who enter the United States without inspection are subject to mandatory detention under 8 USC 1225.

The full text of Avila v. Bondi can be found here: https://ecf.ca8.uscourts.gov/opndir/26/03/253248P.pdf

Eighth Circuit Applies Substantial Evidence Review to Hardship Determination

The Eighth Circuit has determined that the proper standard for reviewing the agency’s hardship determination in a cancellation of removal case is substantial evidence.

The full text of Alonso-Juarez v. Bondi can be found here:

https://ecf.ca8.uscourts.gov/opndir/26/03/242476P.pdf

Eighth Circuit Finds that North Dakota Robbery Conviction is Attempted Theft Aggravated Felony

The Eighth Circuit has determined that North Dakota’s robbery statute matches the definition of an attempted theft aggravated felony, rejecting the claim that the statute covers crimes of deceit.

The full text of Banyee v. Bondi can be found here: https://ecf.ca8.uscourts.gov/opndir/26/01/243590P.pdf

Eighth Circuit Affirms Denial of IAC Claim

The Eighth Circuit has affirmed the agency’s denial of a motion to reopen based on ineffective assistance of counsel because the attorney failed to provide proof that his self-reported bar complaint was actually sent to the relevant disciplinary authorities.

The full text of Rodriguez Irias v. Bondi can be found here: https://ecf.ca8.uscourts.gov/opndir/26/02/251419P.pdf

Eighth Circuit Determines that Arkansas Definition of Cocaine is Broader than Definition in CSA

The Eighth Circuit has determined that Arkansas’ definition of cocaine is broader than the federal definition in the CSA because it criminalizes more isomers than the federal definition.

The full text of United States v. Ferguson can be found here: https://ecf.ca8.uscourts.gov/opndir/26/01/242178P.pdf

Eighth Circuit Rejects Petitioner's Challenge to North Dakota Marijuana Statute

The Eighth Circuit has rejected a non-citizen’s argument that she is not deportable for a controlled substance violation because the North Dakota statute in effect at the time of her conviction included hemp in the definition of marijuana while the federal definition in effect at the time of her removal proceedings excluded hemp. The Court also rejected the argument that the North Dakota definition of marijuana is overbroad as compared to the federal definition because the federal definition includes only “all parts of the plant Cannabis sativa L.,” while the North Dakota definition is not limited to a specific species, finding that the federal definition of cannabis extended to all “marihuana-producing Cannabis.”

The full text of Salinas v. Bondi can be found here: https://ecf.ca8.uscourts.gov/opndir/25/03/232779P.pdf

Eighth Circuit Finds that MN Third Degree Criminal Sexual Conduct does not Match Federal Definition of Rape

The Eighth Circuit has determined that Minnesota’s crime of third-degree criminal sexual conduct does not match the generic definition of rape because the Minnesota crime includes digital or mechanical penetration, which are outside the generic definition of rape.

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

https://ecf.ca8.uscourts.gov/opndir/24/12/231069P.pdf

Eighth Circuit Determines that Prolonged Detention is Lawful while Proceedings are Pending

The Eighth Circuit has determined that year-long detention of a non-citizen without a bond hearing is permissible so long as the non-citizen’s removal proceedings remain pending on appeal.

The full text of Banyee v. Garland can be found here: https://ecf.ca8.uscourts.gov/opndir/24/09/222252P.pdf

Eighth Circuit Address Lawfulness of Temporary BIA Member and Religious-Based Asylum Claim

The Eighth Circuit has determined that the terms of temporary members of the Board of Immigration Appeals (Board) can be renewed. The court also remanded a religion-based asylum claim, remanding for the Board to consider whether statements and actions by gang members demonstrated that the applicant’s evangelizing was one central reason for the harm he suffered.

The full text of Rivera v. Garland can be found here: https://media.ca8.uscourts.gov/opndir/24/07/232351P.pdf