Ninth Circuit Affirms Right to Counsel in Administrative Removal Proceedings for non-LPR Convicted of Aggravated Felony

The Ninth Circuit has determined that 8 U.S.C. § 1228, which governs expedited removal proceedings for noncitizens convicted of committing aggravated felonies, and through which non-citizens can request reasonable fear interviews, explicitly provides that non-citizens have the privilege of being represented, at no expense to the government, by counsel. As such, the Immigration Judge erred by not getting a waiver of the petitioner’s right to counsel during the review of a negative reasonable fear determination. The petitioner was not required to show prejudice from the violation of his statutory right to counsel to prevail on his due process claim.

The full text of Zuniga v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/20/16-72982.pdf

An amended opinion, published on December 26, 2019, can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/12/26/16-72982.pdf

Eighth Circuit Finds that Iowa Forgery Conviction is Aggravated Felony

The Eighth Circuit has determined that an Iowa statute which criminalizes possessing a forged instrument with the intent to perpetuate a fraud or with the knowledge his possession was facilitating a fraud, qualifies as a forgery-related aggravated felony. The court also determined that a reinstatement order is not final if a petitioner requests a reasonable fear interview. The order became final once the Immigration Judge affirmed the Asylum Officer’s negative reasonable fear determination. Finally, the court acknowledged that the Department of Homeland Security violated the petitioner’s due process rights by issuing a Final Administrative Removal Order (FARO) before the deadline for him to respond to the Notice to Intent to Issue the FARO had passed, but found that he could not establish any prejudice from this violation.

The full text of Cardoza Salazar v Barr can be found here:

https://ecf.ca8.uscourts.gov/opndir/19/08/182146P.pdf

Seventh Circuit Finds Petitioner has no Standing to Challenge Regulation Barring Asylum Application

The Seventh Circuit has held that a petitioner subjected to a final administrative order of removal for non-lawful permanent resident convicted of an aggravated felony (FARO) has no standing to challenge the regulation that bars individuals subjects to FAROs from applying for asylum.  Asylum is a form of discretionary relief in which there is no liberty interest at stake, and thus, the petitioner cannot establish the regulation preventing him from applying for asylum has caused any actual injury to him.

The full text of Degaldo-Arteaga v. Sessions can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D05-12/C:16-1816:J:Bauer:aut:T:aOp:N:1962958:S:0

Fourth Circuit Addresses Jurisdiction to Review "Cancelled" Order of Removal and Finds Virginia Statutory Burglary is not a Burglary Aggravated Felony

The Fourth Circuit has determined that it maintains jurisdiction to review a final administrative order of removal issued against a non-lawful permanent resident convicted of an aggravated felony even if the Department of Homeland Security cancels that order after the person's removal from the United States.  The court also determined that Virginia statutory burglary is not a burglary aggravated felony because it is overbroad and indivisible with respect to the manner and location of the entries criminalized.

The full text of Castendet v. Sessions can be found here:

http://www.ca4.uscourts.gov/Opinions/Published/152484.P.pdf

Tenth Circuit Affirms Legality of Final Administrative Order of Removal Process

The Tenth Circuit has determined that the administrative removal process for non-lawful permanent residents convicted of aggravated felonies is legal.  The court also determined that a federal felony conviction for possession with intent to distribute marijuana is an aggravated felony.

The full text of Osuna-Gutierrez v. Johnson can be found here:

https://www.ca10.uscourts.gov/opinions/14/14-9593.pdf