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Viewing entries tagged
Sixth Circuit
The Sixth Circuit has determined that an applicant who refused to answer questions related to marriage fraud at his I-751 interview, and whose conditional residency was terminated for constructive non-appearance at the interview, is not eligible to seek a waiver under section 237(a)(1)(H) of the INA.
The full text of Seldon v. Garland can be found here:
The Sixth Circuit has determined that it lacks jurisdiction to review the agency’s determination that an applicant for adjustment of status had not proven her manner of entry. That said, the Court took the opportunity to criticize the agency for making blatant and obvious errors in its determination.
“Although 8 U.S.C. § 1252(a)(2)(B) forecloses review of the IJ’s decision, we do note that a significant error haunts this case. A visa, issued by a United States embassy or consulate, provides the holder a window of time in which she may travel to the United States and present herself to customs officials for entry into the country. It is not a guarantee of admission but does carry some weight because it bears the imprimatur of a United States government entity in the traveler’s home country. If the visa holder is allowed entry into the United States by customs officials, she is issued an I-94 form, her entry is logged, and her passport stamped. The I-94 sets forth the dates the traveler is allowed to stay in the United States. Thus, the dates on a visa and an I-94 will almost certainly never match. The date range on the visa sets forth the timeframe in which the holder may present herself at the border for admission. The I-94 indicates how long the holder may stay in the country, once admitted.
In his oral decision denying her adjustment of status, the IJ castigated Petitioner for presenting a visa that did not align with the government’s ‘visa.’ He even recommended that the government’s attorneys refer the matter to the Fraud Detection and National Security Directorate (‘FDNS’) for investigation. But this concern rests on a fundamental error: the government never entered a copy of Petitioner’s visa into the record. Instead, we have two government exhibits— the letter USCIS sent to Petitioner requesting that she clarify her manner of entry, and an I-797A form supplying Petitioner a replacement copy of her original I-94. Nothing else. The USCIS letter informs her that their ‘records demonstrate that on January 6, 2000, [she was] issued a visa as a non-immigrant visitor’ indicating she was ‘the domestic employee of Shanti Ray.’ The letter provides no information on the valid dates of the visa. The I-797A form and the attached replacement I-94 show that she entered on a B2 visa and was allowed to stay in the country from March 3, 2000, until September 2, 2000. Notably, however, the form contains no information about her visa beyond the fact that she presented a B2 visa, and even contains the warning that ‘this form is not a visa nor may it be used in place of a visa.’ The visa Petitioner offered shows that it was issued on January 6, 2000, and that she entered the country as the ‘domestic employee of Mrs Shanti Ray.’ Not only does Petitioner’s visa not contradict any government visa, it actually matches the USCIS letter in every respect.
The government, in its answering brief, and the IJ, in his oral decision, both conflate the I-797A and I-94 with a visa. The government cites to the above-mentioned USCIS exhibits for the proposition that ‘Petitioner was issued a tourist visa to the United States on January 6, 2000, that was valid from March 3, 2000 until September 2, 2000.’ This is not an accurate characterization of the evidence. That I-797A form shows the details of Petitioner’s I-94, not her visa. Therefore, the two notations ‘Valid from 03/03/2000 to 09/02/2000’ and ‘VALID FROM 03/03/2000 UNTIL 09/02/2000’ refer to the I-94’s dates she is allowed to stay in the country, not the visa, and the ‘B2’ notation simply marks the type of visa upon which she was admitted.
In summary, the IJ repeatedly expressed concern that Petitioner’s visa exhibit did not match up with the government’s visa exhibit when there was no government visa in evidence. It is more than a little disturbing that such sophisticated parties do not appear to know the difference between an I-94 and a visa, particularly when the forms are so visually different. Ultimately, however, this error was only part of the IJ’s reason for denying relief, and the decision was within his discretion on the grounds of Petitioner’s other falsehoods. We merely flag this error as guidance for future proceedings.”
The full text of Patel v. Garland can be found here: https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0216p-06.pdf
The Sixth Circuit has remanded a domestic violence and family-based asylum claim, noting the change in law governing these claims. “[T]o summarize, our decision to remand Marta’s application directly responds to: (1) the IJ’s near-exclusive reliance on A-B-I to broadly proclaim that victims of domestic violence do not qualify for asylum protection, and to ignore her factfinding obligations thereto; (2) the subsequent change in immigration authority that directs the agency to afford careful, case-by-case adjudication to asylum claims relating to domestic violence; (3) the Board’s disregard of immigration authority and Sixth Circuit precedent requiring the remand of pending applications in light of the glaring change in immigration authority here; and (4) the Board’s misapplication of the circularity rule in Marta’s case.”
The full text of Tista-Ruiz de Ajualip, et al. v. Garland can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0170p-06.pdf
The Sixth Circuit has determined that a Tennessee misdemeanor domestic assault is not a crime of violence because it includes inflict of mental harm.
The full text of Sanchez-Perez v. Garland can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0098p-06.pdf
Following the Seventh Circuit’s lead, the Sixth Circuit has adopted a holistic analysis - rather than a statistics-based one - for determining whether a non-citizen faces a clear probability of torture.
The full text of Saleh v. Garland can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0102p-06.pdf
The Sixth Circuit has adopted the aggregate risk analysis in Convention Against Torture cases, requiring that adjudicators consider if the risk of torture from all possible sources exceeds fifty percent.
The full text of Abdulahad v. Garland can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0082p-06.pdf
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:
The Sixth Circuit has reaffirmed that an individual subject to a reinstated removal order files a timely petition for review if it is filed within 30 days of the agency’s dismissal of his withholding of removal and protection under the Convention Against Torture claims.
The full text of Kolov v. Garland can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0186p-06.pdf
The Sixth Circuit has determined that an Arkansas conviction for third-degree assault on a family or household member is a crime of violence because it requires creating a purposefully creating an apprehension of imminent physical injury, which necessarily requires the threatened use of physical force.
The full text of Banuelos-Jimenez v. Garland can be found here: https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0097p-06.pdf
The Sixth Circuit has issued a decision with a number of favorable findings related to particular social groups in the context of gang persecution in Honduras. First, they found that “Honduran land ownership” is a characteristic so fundamental to the identities of the group members that it is immutable. Second, they found that “single mothers living without male protection” are socially distinct, citing a statement by a deputy commander in the Honduran police that such women are particularly vulnerable within society.
The full text of Turcios-Flores v. Garland can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0094p-06.pdf
In a very unusual circumstance, the Sixth Circuit has found a restitution order - based on an itemized “loss” list that contained internal inconsistencies, as well charges not covered by the criminal statute - was insufficient to demonstrate a greater than $10,000 loss to the victim.
The full text of Al-Adily v. Garland can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0058p-06.pdf
The Sixth Circuit has determined that whether a non-citizen lacks good moral character is a mixed question of fact and law that the a federal appellate court has jurisdiction to review, though it reserved the question of what standard of review applies.
The full text of Hernandez v. Garland can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0019p-06.pdf
The Sixth Circuit has determined that a federal conviction for exporting stolen vehicles qualifies as a receipt of stolen property aggravated felony. The court rejected the petitioner’s argument that the federal mens rea of “willful blindness” was broader than required mens rea prescribed by the agency for receipt of stolen property.
The full text of Tantchev v. Garland can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0195p-06.pdf
The Sixth Circuit has determined that an Ohio robbery statute does not necessarily require the intentional infliction of violence force, and therefore, does not match the definition of a crime of violence. Specifically, the court noted that the reckless use of force can still result in injury to a victim.
The full text of US v. Butts can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0163p-06.pdf
The Eighth Circuit has determined that the Minnesota first-degree burglary statute is overbroad compared to the definition of a violent felony, but that the subsection criminalizing burglary with assault is a violent felony.
The full text of US v. Fisher can be found here:
https://ecf.ca8.uscourts.gov/opndir/22/02/212151P.pdf
The Sixth Circuit has determined that the written warnings in an asylum application regarding the consequences of filing a frivolous asylum claim are sufficient; there is no requirement that an immigration judge orally repeat those warnings. The court recognized the possibility that this written warning might not suffice if an applicant did not adequately learn of it—say, because the applicant does not speak English and the person who completed the application did not pass along this information.
The full text of Khaytekov v. Garland can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0036p-06.pdf
The Sixth Circuit has affirmed the agency’s finding that a member of UDPS (formerly, the primary opposition party in the Democratic Republic of the Congo) no longer qualified for asylum because the current president of DRC is a member of UDPS. This change of the party in power was sufficient to rebut the presumption of future persecution raised by the existence of past persecution.
The full text of Mbonga v. Garland can be found here:
The Sixth Circuit has remanded a claim for asylum based on membership in the particular social group of “El Salvadorian women of childbearing age in domestic partnerships.” The court noted that the abrogation of Matter of A-B- by the Attorney General was a significant change in agency case law, warranting reconsideration of the viability of the proposed group.
The full text of Zometa-Orellana v. Garland can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0271p-06.pdf
The Sixth Circuit has determined that U visa applicants may bring unreasonable delay claims related to USCIS’ failure to adjudicate their applications for waitlist purposes and failure to make a bona fide determination on their applications. However, the court cannot compel USCIS to adjudicate pre-waitlist employment authorization applications.
“Nor are we persuaded that USCIS’s release of its average U-visa-application processing time should prompt us to decide that Plaintiffs’ years-long wait is reasonable. The average adjudication time says little about the unreasonableness of USCIS’s delay in Plaintiffs’ case; this number also does not alter how most (if not all) U-visa adjudications might be unreasonably delayed. We find it unhelpful to fixate on the average snail’s pace when comparing snails against snails in a snails’ race.”
The full text of Barrios Garcia v. DHS can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0217p-06.pdf
An amended opinion can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0027p-06.pdf
The Sixth Circuit has determined that Tennessee’s first-degree burglary statute is overbroad as compared to the generic definition of burglary because it includes breaking into a container (i.e., a drawer) after a lawful entry.
The full text of Cartwright v. United States can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0203p-06.pdf
