Ninth Circuit Finds that Montana Conviction for Partner or Family Member Assault is not Misdemeanor Crime of Domestic Violence under Federal Criminal Law

The Ninth Circuit has determined that a Montana conviction for partner or family member assault is not a misdemeanor crime of domestic violence under federal criminal law. In so doing, the court recognized that the statute criminalizes infliction of emotional abuse, and thus, does not require the use or attempted use of physical force. “Taken together, these authorities show that a person can violate section 45-5-206(1)(a) through any form of communication that inflicts bodily injury in the form of emotional anguish. The infliction of emotional anguish does not require the use of physical force as that term is defined by federal law.”

Although this analysis arose in the criminal context, the immigration law definition of a crime of violence and a crime of domestic violence both require the use or attempted use of physical force. Indeed, the federal courts have acknowledged that the level of force required to meet the definition of a misdemeanor crime of domestic violence is lower than the degree of force required for a crime of violence or a crime of domestic violence. Thus, this analysis should be sufficient to demonstrate that a Montana conviction for partner or family member assault does not trigger the applicable immigration consequences for those offenses.

The full text of USA v. DeFrance can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/30/23-2409.pdf

Sixth Circuit Remands an Asylum Claim based on Domestic Violence

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

Sixth Circuit Finds that Tennessee Misdemeanor Domestic Violence Statute is not Crime of Violence

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

Eighth Circuit Finds Iowa Domestic Abuse Conviction is not Crime of Violence

The Eighth Circuit has determined that an Iowa domestic abuse conviction is not a crime of violence because it criminalizes simple assault.

The full text of US v. Daye can be found here:

http://media.ca8.uscourts.gov/opndir/24/01/231048P.pdf

Eighth Circuit Finds that Iowa Conviction for Domestic Abuse Assault with the Use or Display of a Weapon is a Crime of Violence

The Eighth Circuit has determined that an Iowa conviction for domestic abuse assault with the use or display of a weapon is a crime of violence because the display of a dangerous weapon requires at least the threatened use of physical force, and there is no distinction between the “use” and the “display” of a dangerous weapon under Iowa law.

The full text of U.S. v. Conrad can be found here:

http://media.ca8.uscourts.gov/opndir/23/07/223275P.pdf

Ninth Circuit Finds that Montana Conviction for Partner or Family Member Assault is not Crime of Violence

The Ninth Circuit has determined that a Montana conviction for partner of family member assault is not a crime of violence because it includes the infliction of mental anguish.

The full text of US v. Castro can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/06/26/22-30050.pdf

Sixth Circuit Finds that Arkansas Conviction for Third-degree Assault on a Family or Household Member is Crime of Violence

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

Eighth Circuit Finds Iowa Domestic Abuse to be Crime of Violence

The Eighth Circuit has determined that an Iowa conviction for domestic abuse - which requires either an intent to inflict serious injury or the use or display of a dangerous weapon - qualifies as a crime of violence under the federal sentencing guidelines. Given the similar definition of a crime of violence in the immigration and sentencing contexts, this case will likely have precedential impact in the immigration context.

The full text of US v. Tinlin can be found here:

https://ecf.ca8.uscourts.gov/opndir/21/12/202862P.pdf

Ninth Circuit Recognizes Feminist Political Opinion in Domestic Violence Asylum Claim

The Ninth Circuit has recognized that a woman who was repeatedly abused because she believed women are equal to men was persecuted on account of her political opinion. “That an unprotected ground, such as a personal dispute, also constitutes a central reason for persecution does not bar asylum.” “That some incidents of abuse may also have reflected a dysfunctional relationship is beside the point. Petitioner need not show that her political opinion—rather than interpersonal dynamics—played the sole or predominant role in her abuse.”

“Petitioner was persecuted because of that political opinion. The record contains episode after episode of men stating, quite plainly, that they were beating, burning, raping, and strangling her because she sought an equal perch in the social hierarchy. Hernandez left bite and strangulation marks on Petitioner after she took a job against his wishes, to show other men that she ‘had an owner.’ Petitioner’s husband, Baron, burned a cigarette into her face because she refused to leave her job and, according to her husband, acknowledge ‘that he’ and [Petitioner] were not equals.’ Petitioner was doing something wrong, Baron said, by ‘providing money’ when, ‘as a man, it was his duty to do [that].’ When he said that Petitioner ‘didn’t have th[e] right to have that job,’ Petitioner countered that she did. Baron responded by hitting her.”

The full text of Rodriguez Tornes v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/05/19-71104.pdf

Ninth Circuit Issues Terrible Decision on DV Asylum

The Ninth Circuit has issued a terrible asylum decision for a Guatemalan asylum seeker who was the victim of domestic violence. The court found sufficient evidence in the record to support the agency’s finding that the Guatemalan government is able to protect the petitioner from harm.

“The State Department reports show that Guatemala is working to curb violence against women. For example, Guatemalan law criminalizes rape and domestic abuse, and officials investigate and prosecute cases under those laws. Granted, the conviction rates are exceptionally low, and officers often face a lack of resources and training, but we do not limit our analysis to whether the government can ‘control the attackers’; we also look to whether it can ‘protect the attacked.’ On this point the reports convey that justices of the peace issued restraining orders and ordered police protection for abuse victims in an unspecified number of cases. In addition, Guatemala has established programs, offices, and shelters for female victims of physical and sexual assault. One such shelter operates in Quetzaltenango, where Velasquez-Gaspar lived. Thus, although the State Department reports make clear that Guatemala still has a long way to go in addressing domestic violence, the country’s efforts, coupled with the pleas of Velasquez-Gaspar’s acquaintances, suggest that she could have obtained help.2 As a result, we cannot say that the record compels a finding contrary to the agency’s.”

Notably, the decision drew a very strong dissent from Judge Paez.

The full text of Velasquez-Gaspar v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/09/30/17-71964.pdf

Ninth Circuit Construes Matter of A-B-

The Ninth Circuit has determined that Matter of A-B-, which purported to exclude domestic violence and gang-based claims from asylum, did not actually create a categorical bar to such claims. Instead, these claims, like all asylum claims, but be evaluated on a case-by-case basis.

The court further observed that A-B- “merely reiterated the well-established principle that a particular social group must exist independently of the harm asserted, and that the BIA must consider whether a petitioner’s social group is cognizable if it is defined without reference to the fact of persecution.” “If a group is otherwise cognizable, Matter of A-B- does not demand that it be devoid of any reference to an applicant’s claimed persecution. To the contrary, Matter of A-B- reiterated the longstanding rule that persecution may be relevant to a group’s social distinction.” “The idea that the inclusion of persecution is a sort of poison pill that dooms any group does not withstand scrutiny. “ “BIA precedent confirms that a group that exists independent of persecution is simply a group that shares an immutable characteristic other than the persecution it suffers—i.e., a group that shares a ‘narrowing characteristic.’”

“The BIA ruled that Diaz-Reynoso’s proposed social group was not cognizable because it assumed her inability to leave her relationship was attributable to domestic violence, and because it understood Matter of A-B- to say that the mention of domestic violence disqualifies a particular social group.” “There are at least two problems with the BIA’s reasoning in Diaz-Reynoso’s appeal. First, as explained, the BIA misunderstood Matter of A-B-’s holding. Second, it is not clear that the reason Diaz-Reynoso was ‘unable to leave’ her relationship was limited to domestic violence. Rather, the BIA assumed that domestic violence was the only reason Diaz-Reynoso was unable to leave her relationship.” “The persecution Diaz-Reynoso fears is undoubtedly the abuse perpetrated by her husband, but before the immigration judge, she advanced evidence of economic, societal, and cultural factors that also may have prevented her from leaving her relationship. These included her financial dependence on her husband, limited education, rural location, and an ingrained Mayan cultural view that a relationship does not end until the man so agrees.”

The full text of Diaz-Reynoso v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/07/18-72833.pdf

Sixth Circuit Rejects Matter of A-B-

The Sixth Circuit has remanded a domestic violence based asylum claim, in which an IJ found that the applicant had suffered past persecution on account of a protected ground, but that the presumption of future harm had been rebutted because the applicant had been able to leave her abuser. The court noted that that “physical separation does not necessarily indicate that a relationship has ended—if it did, then any woman who escaped her persecutor and then filed an application for asylum on these grounds would be denied.” Moreover, during the year that she lived apart from her abuser, he continued to threaten her and their children with serious harm. While the applicant has since filed for divorce, her abuser refuses to consent to the divorce unless she relinquishes custody of their children to him.

In a footnote, the Sixth Circuit noted that it found the rationale of Grace v. Whitaker, which abrogated Matter of A-B-, to be persuasive, and as such, would likely find that the Matter of A-R-C-G- (which defined particular social groups as they relate to domestic violence) remains good law.

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

https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0156p-06.pdf

Eleventh Circuit Defers to Matter of A-B-

The Eleventh Circuit has deferred to the Board of Immigration Appeals’ decision in Matter of A-B-, as a reasonable interpretation of the BIA and Eleventh Circuit’s particular social group precedent. As such, it rejected the petitioner’s proposed social group of “women in Mexico who are unable to leave their domestic relationship.”

“The belief of Amezcua-Preciado’s aunt that Amezcua-Preciado should return to her husband despite being abused is insufficient to determine that Mexican society as a whole perceives women who are unable to leave their relationships as a distinct group.”

“In addition, Amezcua-Preciado’s group is not defined with sufficient particularity because its boundaries are amorphous, overbroad, and subjective. As she defines it, Amezcua-Preciado’s group includes all Mexican women who cannot leave any domestic relationship, whether that is a wife unable to leave her husband or a daughter unable to leave her parents. It covers women who are ‘unable to leave’ a relationship for any reason, including for physical, legal, economic, cultural, or psychological reasons. The fact that a woman could be prevented from leaving a relationship by her psychological or economic dependence reinforces the subjective nature of this group.”

“Finally, to the extent Amezcua-Preciado’s proposed group of Mexican women who are unable to leave their domestic relationships because they fear physical or psychological abuse by their spouse or domestic partner, this group is defined by the underlying harm asserted as persecution in Amezcua-Preciado’s application for asylum and withholding of removal. The women share no ‘narrowing characteristic’ other than their risk of being persecuted. This is the kind of circular definition of a social group, created by reference to the alleged persecution, that cannot create a cognizable particular social group.”

The full text of Amezcua-Preciado v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201814788.pdf

Fifth Circuit Defers to Matter of A-B-

The Fifth Circuit has deferred to the Attorney General’s decision in Matter of A-B-, and rejected a domestic violence-based protection claim. The court also determined that the injunction in Grace v. Whitaker only enjoins the application of Matter of A-B- in credible fear interviews, not in removal proceedings. Thus, the injunction poses no impediment to the Fifth Circuit evaluating the validity of the decision in the context of a removal proceeding.

The full text of Gonzalez-Veliz v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/18/18-60174-CV0.pdf

First Circuit Finds no Jurisdiction over Denial of MTR for VAWA Cancellation; Remands for Further Analysis of Eligibility for Asylum based on Domestic Abuse

The First Circuit has determined that it has no jurisdiction to review the denial of a motion to reopen to seek VAWA cancellation of removal. The Board of Immigration Appeals (Board) also denied the petitioner’s motion to reopen to seek asylum based on domestic abuse perpetrated by her ex-spouse. The Board determined the harm was too remote in time to support eligibility for asylum. The First Circuit remanded, finding that the Board implicitly accepted that the abuse qualified as persecution on account of a protected ground, and as such, should have applied a presumption of future persecution.

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

http://media.ca1.uscourts.gov/pdf.opinions/18-1992P-01A.pdf

Fourth Circuit Scolds BIA for Ignoring Evidence about Violence against Women in El Salvador

The Fourth Circuit has scolded the Board of Immigration Appeals for failing to take note of a woman’s testimony that she made three unsuccessful attempts to get a protective order against her abusive partner, and that the chief of police refused to speak with her. “Orellana testified that during her third attempt to obtain a protective order in 2009, the Salvadoran family court refused to offer aid and instead directed her to the police station, which also turned her away. Yet the IJ gave this evidence no weight.” “Nor did the IJ or the BIA address Orellana’s testimony, which the IJ expressly found credible, that she called the police ‘many times’ during a twelve-year period, calls to which the police often did not respond at all. This testimony, too, was uncontroverted.”

The full text of Orellana v. Barr can be found here:
http://www.ca4.uscourts.gov/opinions/181513.P.pdf

Eighth Circuit Finds that Arkansas Conviction for Aggravated Assault on a Family Member is a Violent Felony

The Eighth Circuit has determined that an Arkansas conviction for aggravated assault on a family member is a violent felony under the Armed Career Criminal Act (ACCA) because it requires the use of violent force.  Given the similarity between the definition of a violent felony under the ACCA and the definition of a crime of violence in the immigration context, this case could have persuasive value in the immigration context.

The full text of US v. Pyles can be found here:

http://media.ca8.uscourts.gov/opndir/18/05/172116P.pdf

Attorney General Refers Asylum Case to Himself

The Attorney General referred the decision of the Board of Immigration Appeals (Board) to himself for review of issues relating to whether being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum and withholding of removal, ordering that the case be stayed during the pendency of his review.

The decision to refer this case is widely viewed as an attempt to undermine the Board's precedent in Matter of A-R-C-G-, which recognizes that survivors of domestic violence may qualify for asylum.

The full text of the order in Matter of A-B- can be found here:

https://www.justice.gov/eoir/page/file/1041481/download

Ninth Circuit Finds AZ Class 1 Misdemeanor Domestic Violence Conviction to be a Crime of Domestic Violence

The Ninth Circuit has determined that an Arizona conviction for a class one misdemeanor domestic violence offense is a crime of domestic violence.  The court found that the statute is overbroad because it includes “recklessly causing any physical injury to another person.”  However the court also determined that the statute is divisible.  Because the petitioner was convicted of a class 1 misdemeanor, the Court deduced that he was convicted of intentionally or knowingly causing physical injury, which meets the definition of a crime of violence.  Because the relationships in the statute are coextensive with those found in section 237(a)(2)(E)(i) of the INA, the petitioner's conviction qualifies as a crime of domestic violence.

The full text of Cornejo-Villagrana v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/14/13-72185.pdf

Ninth Circuit Recognizes the Difficulty of Testifying about Trauma

In an unpublished decision, the Ninth Circuit recognized the difficulty of testifying about trauma and reversed an adverse credibility determination for a victim of domestic violence seeking asylum.  

"[T]he circumstances of Ortiz’s testimony make the asserted inconsistencies only minimally probative of her credibility. At both her reasonable fear interview and at her hearing before the IJ, Ortiz testified without counsel, through an interpreter, and about very traumatic subjects. It is likely that the inconsistencies identified by the BIA were the products not of untruthfulness, but of misunderstanding, mistake, or bad memory.  Considering the record as a whole, the 'totality of the circumstances, and all relevant factors,' we hold that the BIA’s adverse credibility determination was not supported by substantial evidence."

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

https://cdn.ca9.uscourts.gov/datastore/memoranda/2017/06/09/14-73863.pdf