Ninth Circuit Finds Faulty Translation Violated Non-Citizen's Right to Counsel

The Ninth Circuit has determined that a non-citizen’s right to counsel was violated when an interpreter translated his right to counsel as the right to “hire” an attorney. “Considering these circumstances, Valdivias’s right to counsel was effectively lost in translation by the interpreter’s repeated use of the Spanish word for ‘hire’ in describing that right. This suggested that Valdivias could enjoy the privilege of being represented only if he could pay for an attorney. But as the statutory and regulatory scheme make clear, Valdivias had the right to be represented by a pro bono attorney if he could locate one; and, indeed, he was entitled to a list of lawyers, organizations, and referral services willing to help him obtain pro bono representation.” “Because Valdivias was allowed to proceed pro se without having validly waived his right to counsel, his removal proceedings violated due process.”

The full text of U.S. v. Valdivias-Soto can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/09/20-10415.pdf

Ninth Circuit Reiterates Authentication Requirement

The Ninth Circuit has reiterated the requirement that official documents be authenticated in removal proceedings. It suggested that the procedures for authentication of domestic records in 8 C.F.R. 287.6 may be mandatory, but did not ultimately conclude what procedures are required because the petitioner failed to object to the documents on authenticity grounds before the immigration judge.

The full text of Smith v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/06/03/22-954.pdf

Ninth Circuit Finds Due Process Violation by Deeming Application Abandoned

The Ninth Circuit has determined than an Immigration Judge violated an applicant’s due process rights by deeming his asylum application abandoned without unambiguously setting a filing deadline, especially after his attorney offered to file the application later the same day.

The full text of Arizmendi-Medina v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/06/07/21-298.pdf

Third Circuit Defines Fundamental Rights

The Third Circuit has reiterated that only a violation of a fundamental right results in automatic remand without a showing of prejudice. “For a regulation to protect a fundamental right, a violation must be a structural error that necessarily makes proceedings fundamentally unfair. Very few rights will fit this extraordinary category. [T]hese include the rights to counsel and to an unbiased judge. But rights outside this category are not fundamental enough to trigger [a] presumption of prejudice.”

The full text of Gonzalez Aquino v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/213317p.pdf

Seventh Circuit Finds No Prejudice from Defective Reinstatement Order

The Seventh Circuit has recognized the defects in a reinstatement order (namely, that it was signed more than 6 months before the petitioner was given an opportunity to respond to it), but denied the petition for review due to a lack of prejudice caused by the deficiencies.

The full text of Casas v. Garland can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2022/D08-29/C:20-1739:J:Jackson-Akiwumi:aut:T:fnOp:N:2924397:S:0

Fourth Circuit Remands due to IJ Conduct

The Fourth Circuit has remanded a case for the agency to determine whether a petitioner is entitled to a hearing before a new immigration judge due to the conduct of the presiding immigration judge, and whether the petitioner is required to show prejudice due the judge’s conduct.

The full text of Tinoco Acevedo v. Garland can be found here:

https://www.ca4.uscourts.gov/opinions/202048.P.pdf

Fourth Circuit Reverses Injunction on Burdens of Proof in Bond Proceedings

The Fourth Circuit has reversed a class-wide injunction requiring DHS to bear the burden of proof on flight risk and danger to the community in bond proceedings. The court concluded that “1252(f)(1) expressly precludes ‘jurisdiction or authority to enjoin or restrain’ provisions of the immigration laws, including § 1226(a), on a class-wide basis.”

With respect to the claim of an individual class member that DHS should bear the burden of proof in bond proceedings, the Court concluded that noncitizens “are due less process when facing removal hearings than an ordinary citizen would have.” The court concluded that the procedures employed in bond hearings that place the burden of proof on the non-citizen comply with the requirements of due process. The court acknowledged that this creates a circuit split with the First Circuit.

Finally, the court also rejected the argument that due process requires an immigration judge to consider a non-citizen’s ability to pay when setting a bond amount. The court acknowledged that this creates a circuit split with the Ninth Circuit.

The full text of Miranda v. Garland can be found here:

https://www.ca4.uscourts.gov/opinions/201828.P.pdf

Ninth Circuit Remands Asylum Claim for Gay Nigerian Man

The Ninth Circuit has remanded an asylum claim for a gay Nigerian man, finding that a lie about the name of the hotel where was seen having sex with his boyfriend was not related to a material element of his claim. As such, the agency’s frivolous finding did not withstand scrutiny. In addition, the applicant had presented numerous corroborating documents establishing that he was gay, and the agency ignored these documents, in violation of the applicant’s due process rights.

The full text of Udo v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/05/04/20-70078.pdf

Ninth Circuit Requires DHS to Make Good Faith Effort to Produce Drafter of Probation Report and Crime Victim for Testimony

The Ninth Circuit has determined that when the Department of Homeland Security produces a probation report that contains a victim’s narrative, it must make a good faith effort to produce both the drafter of the report and the victim for cross-examination.

The full text of Alcaraz-Enriquez v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/16/15-71553.pdf

An amended opinion can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/12/14/15-71553.pdf

Ninth Circuit Finds that Adjustment Applicant was not Given Adequate Notice of Possible False Claim to US Citizenship Inadmissibility Problem

The Ninth Circuit has determined that an adjustment of status applicant was not given adequate notice that his past claims to citizenship could render him inadmissible and ineligible for permanent residence.

“We hold that Flores-Rodriguez was not put on notice that his alleged false claim of citizenship would be at issue in his 2014 hearing.” “At Flores-Rodriguez’s 2012 preliminary hearing, the IJ discussed false claims of citizenship only in the context of a possible DHS charge, telling him that if such a charge were sustained, he would not be eligible for adjustment of status. At Flores-Rodriguez’s 2013 preliminary hearing—during which the final IJ hearing was scheduled—the issue was not raised at all. In sum, by the time Flores-Rodriguez had his final hearing in 2014, his alleged false claim of citizenship had not been raised by the IJ for two years, and the last time it had been discussed the IJ implied it would only be dispositive if DHS sustained a false claim of citizenship charge against him. DHS never even brought such a charge.”

The full text of Flores-Rodriguez v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/19-70177.pdf

Third Circuit Requires that Asylum Applicant be Given Opportunity to Express Language of Preference

The Third Circuit has determined that an Immigration Judge must give an asylum applicant the opportunity to identify the language they prefer to proceed in, and if that language is anything other than English, to secure an interpreter for the applicant. Accordingly, the court remanded a motion to reopen filed by a Cameroonian asylum seeker whose native language was Pidgin English, and who was not provided with an interpreter during his removal proceedings.

The full text of BC v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/191408p.pdf

Fourth Circuit Finds that IJs have a Duty to Develop the Record

The Fourth Circuit has determined that Immigration Judges have a duty to develop the record in all cases, and that duty is especially important when the applicant is unrepresented. “[I]n pro se cases, immigration judges’ duty to develop the record includes adequately explaining the hearing procedures and the relevant legal requirements in plain language. In particular, immigration judges must provide respondents with sufficient guidance as to how they may prove the elements of their claims—i.e., what evidence will demonstrate their eligibility for relief from deportation and in what form that evidence could be presented.” “[W]hat the aforesaid duty requires of an immigration judge inevitably depends on the particulars of each case—the respondent’s characteristics, such as age, education level, detention status, and immigration history; the applicable ground(s) of removability; and the form(s) of relief sought.”

The court further determined that the Board’s decision in Matter of W-Y-C- & H-O-B-, which requires asylum seekers to provide an exact delineation of proposed particular social group to the Immigration Judge at the penalty of forfeiting appellate review of any of social groups, should be applied to pro se applicants. “Requiring pro se asylum seekers to clearly indicate the exact delineation of their potential particular social groups would be completely inconsistent with immigration judges’ robust duty to help such applicants articulate a legally cognizable group.”

Finally, the court held that “that an immigration judge’s failure to satisfy his or her duty to fully develop the record is presumptively prejudicial, unless the error is plainly irrelevant to, or otherwise does not hinder in any way, the reviewing court’s ability to assess whether prejudice occurred.”

The full text of Arevalo Quintero v. Garland can be found here: https://www.ca4.uscourts.gov/Opinions/191904.P.pdf

BIA Weighs in on Filing Deadlines and Video Teleconferencing

The Board of immigration Appeals has deemed it permissible for an Immigration Judge to set a filing deadline for an asylum application prior to the next hearing, and then deem the application abandoned if it is not filed on time. The Board also determined that video teleconferencing hearings do not violate a non-citizen’s due process rights.

The full text of Matter of R-C-R- can be found here:

https://www.justice.gov/eoir/page/file/1311336/download

First Circuit Permits Reliance on Gang Database

The First Circuit has found no due process violation in an Immigration Judge’s reliance on reports from the Boston Regional Intelligence Center’s gang databased in order to find an asylum applicant not credible and unworthy of an exercise of discretion.

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

http://media.ca1.uscourts.gov/pdf.opinions/19-1620P-01A.pdf

Fourth Circuit Finds that BIA Violated Asylum Seeker's Due Process Rights

The Fourth Circuit determined that the Board of Immigration Appeals (BIA) violated the due process rights of an asylum seeker when it remanded her case to the judge to further consider certain inconsistencies in her testimony, but then affirmed the judge’s denial of her application without holding a hearing to take her testimony on remand.

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

http://www.ca4.uscourts.gov/opinions/181886.P.pdf

Ninth Circuit Limits Circumstances in which Minor's OSC must be Served on Adult

The Ninth Circuit has limited the circumstances in which an Order to Show Cause served on a minor must also be served on a responsible adult. Previously, the court had held in Flores-Chavez v. Ashcroft that when immigration authorities detain a juvenile, and subsequently release the juvenile to a responsible adult, the Order to Show Cause must also be served on that adult. However, the court determined that the same rule does not apply when the minor was never detained, files for asylum, and is subsequently served with an Order to Show Cause.

“Nonetheless, the calculation differs here, and not just because Petitioner is slightly older than Flores-Chavez was. Petitioner himself set in motion the procedures leading to his hearing by filing an affirmative asylum application and by appearing before an asylum officer. These facts suggest that the risk of error in Petitioner’s situation is less than the risk of error in Flores-Chavez’ situation. More importantly, no adult ever entered an agreement with the government to assume responsibility for Petitioner. It is unclear with whom Petitioner lived at the time of his deportation hearing, including whether anyone at his residence was over the age of 18. It is equally unclear that notice to an adult living at his residence (if there was one) would have added any safeguards to the process, because we cannot know whether that adult would have been willing to take the kind of responsibility that was statutorily assigned in Flores-Chavez. Without researching the details of every minor’s situation, it is impossible to know whether a particular minor over the age of 14 resides with an adult and if so, whether serving the OSC on that adult will be any more effective in ensuring the minor’s attendance at the hearing than serving notice on the minor.” “Requiring the government to provide notice to a responsible adult living with a never-detained juvenile over the age of 14 assumes that there is such a person and that the person can be identified.” “Balancing all the factors, the burden on the government outweighs the interest of never-detained minors over the age of 14, at least those who have filed an affirmative request for relief.”

The full text of Cruz Pleitez v. Barr can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/18/15-72876.pdf

First Circuit Rejects Challenge to Visa Waiver Overstay Administrative Order

The First Circuit has rejected a challenge to administrative removal order issued against a petitioner who entered the United States on the visa waiver program and overstayed, despite his entry to the United States as a minor. The Court determined that even if he had not knowingly waived his right to a removal hearing because he was a minor, he could not establish any eligibility for relief at the time of the issuance of the administrative removal order, and thus, could not establish prejudice.

The full text of O’Riordan v. Barr can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/17-1990P-01A.pdf

Third Circuit Finds that IJ's Rude Behavior Violates Due Process and Urges the BIA to Stop Avoiding the Question of the Cognizability of Particular Social Groups

The Third Circuit determined that an Immigration Judge violated an unrepresented applicant's due process rights by continuously interrupting him, speaking to him in a rude tone, and preventing him from providing testimony about his fear of return to El Salvador.  The judge was also clearly unfamiliar with the basic facts in the record.

In addition, the Court called on the Board of Immigration Appeals (BIA) to stop its practice of bypassing the question of whether a particular social group is valid, and proceeding straight to the nexus determination.  "In a number of recent cases, the BIA likewise has assumed a cognizable PSG or imputed political opinion and disposed of the appeal by finding no nexus.  This practice, however, can have troubling consequences.  First, it places the analytical cart before the horse in cases like this one, where the very definition of the PSG is then at issue, for denying relief based on the absence of a nexus begs the question: nexus to what?  Even the Attorney General has observed “it would be better practice for Immigration Judges and the Board to address at the outset whether the applicant has established persecution on account of membership in a [PSG], rather than assuming it as the Board did here. Deciding that issue—and defining the [PSG] of which the applicant is a part—is fundamental to the analysis of which party bears the burden of proof and what the nature of that burden is.”  Second, even where the PSG definition is undisputed—so that the BIA would certainly have discretion to conclude that the efficiency of assuming a given PSG weighs in favor of resolution at the nexus stage—a reflexive practice of simply assuming a PSG has been established and is cognizable does not account for the very real benefits on the other side of the scale."  

"[T]he BIA’s practice of assuming PSG and resolving cases on nexus grounds often inhibits the proper and orderly development of the law in this area by leaving the contours of protected status undefined, precluding further appellate review under the Chenery doctrine, and ultimately generating additional needless litigation because of the uncertainty in this area."  

The full text of Serano-Alberto v. Attorney General can be found here:

http://www2.ca3.uscourts.gov/opinarch/153146p.pdf

Ninth Circuit Rejects Due Process Claim from Cancellation Applicants

The Ninth Circuit has rejected a claim from two applicants for cancellation of removal for non-lawful permanent residents because the agency failed to adjudicate their applications before their qualifying relatives (their children) reached the age of 21 (and thus, no longer qualified as children).  First, the Ninth Circuit deferred to the Board of Immigration Appeals' decision in Matter of Isidro-Zamorano, which held that the qualifying relative must remain a child (i.e. unmarried and under age 21) at the time the application for cancellation is adjudicated (as opposed to when the application is filed).  Second, the Ninth Circuit held that the applicants lacked any legitimate claim of entitlement to having their applications adjudicated before their sons turned 21 because no statute or regulation requires the government to take action on their applications within a set period, nor does cancellation of removal give rise to a "substantive interest protected by the Due Process Clause.”  Moreover, the processing delays in the cases were routine, and neither applicant made any attempt to expedite their cases to ensure adjudication before their children turned 21.  Thus, the delay in processing did not violate the applicants' due process rights.  Finally, the Court deemed the statutory cap on cancellation cases to be well within the discretion of Congress to create though duly enacted legislation, and as such, the cap did not violate anyone's due process rights.

The full text of Mendez Garcia v. Lynch can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/10/20/15-71931.pdf

The Ninth Circuit Finds Government Officials did not Act with Deliberate Indifference in Adjudication of Naturalization Applications

Due to a serious of government missteps, the petitioner never became a U.S. citizen.  The former INS lost his mother's original naturalization application, delaying her naturalization until two months after the petitioner's 18th birthday, and thus, preventing him from deriving citizenship.  When the petitioner applied for naturalization shortly thereafter, the examiner incorrectly told him that he did not need to naturalize because he had derived citizenship through his parents.  The Ninth Circuit previously transferred the petitioner's case to determine if the government officials had acted with deliberate indifference to the petitioner's right to apply for citizenship.  The District Court determined that there was no evidence of deliberate indifference.  The Ninth Circuit affirmed, finding no evidence that any government official was aware that their actions were jeopardizing the petitioner's right to apply for citizenship or that any government policymaker formulated policy that was indifferent to the rights of the petitioner and similarly situated individuals.

The full text of Brown v. Holder can be found here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/02/11-71458.pdf