These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
circumstance specific approach
The Board of Immigration Appeals has determined that for the purpose of assessing whether an offense constitutes a money laundering aggravated felony, the circumstance-specific appproach applies to the requirement that the “amount of the funds exceeded $10,000.”
The full text of Matter of Dominguez Reyes can be found here:
The Second Circuit has determined that deportabilty under section 237(a)(2)(E)(i) of the INA (violation of a protective order) is governed by a circumstance specific approach, not a categorical analysis.
The full text of Alvarez v. Garland can be found here:
https://www.ca2.uscourts.gov/decisions/isysquery/7ab57bdb-b5b8-4eea-80f6-61f7193bf77f/2/doc/22-6021_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/7ab57bdb-b5b8-4eea-80f6-61f7193bf77f/2/hilite/
The Ninth Circuit has determined that a judge may consider outside the state criminal court record to determine if a non-citizen’s fraud conviction involved a loss to the victims of $10,000 or more.
“Although Nijhawan did not expressly address the question whether a court could consider evidence beyond sentencing-related materials introduced in immigration or judicial proceedings to determine the loss to the victim, the logic of Nijhawan makes clear that the Supreme Court’s rules limiting the evidence that can be considered in categorical cases do not apply in this circumstance-specific context. Because the loss to the victim inquiry in § 1101(a)(43)(M)(i) requires an examination of the offender’s actual conduct, a court is not limited to reviewing the language of the statute of conviction, as would be the case under the categorical approach. For the same reason, the court is not limited to reviewing a specified set of documents to determine which part of a divisible statute was at issue, as would be the case under the modified categorical approach. Instead, the court must determine whether the offender’s actual conduct underlying the state crime of conviction matches the conduct described in the generic federal offense. Courts making this sort of inherently factual finding are generally free to consider any admissible evidence relevant to making such a determination.”
The full text of Orellana v. Mayorkas can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/28/20-16092.pdf
The Board of Immigration Appeals has confirmed that INA section 245(h)(2)(B) can be used to waive inadmissibility related to a single offense of possession of less than 30 grams of marijuana. The Board indicated that the circumstance specific approach should be used to determine the amount of marijuana at issue.
The full text of Matter of Moradel can be found here:
The Fifth Circuit has deferred to the Board of Immigration Appeals’ determination that the personal use of marijuana exception to controlled substance deportability is subject to the circumstance specific analysis. Specifically, if the statute of conviction does not specify that the conviction involved less than 30 grams of marijuana, the adjudicator may consult other documents, such as the arrest report, to determine how much marijuana was involved in the offense.
The full text of Cardoso de Flores v. Whitaker can be found here:
http://www.ca5.uscourts.gov/opinions/pub/17/17-60744-CV0.pdf
The petitioner pled guilty to a single count of wire fraud in the amount of $2290.53. However, the total loss in the dismissed counts, as reflected in the restitution order, was $950,000. The court found that this was sufficient to show a loss to the victim in excess of $10,000 that was sufficiently tethered to the conviction.
The full text of Ku v. Attorney General can be found here:
