Ninth Circuit Finds NV Conviction for Possession of Visual Presentation Depicting Sexual Conduct of Person under 16 Years of Age is not Sexual Abuse of a Minor Aggravated Felony

The Ninth Circuit has determined that a Nevada conviction for possession of visual presentation depicting sexual conduct of a person under 16 years of age is not a sexual abuse of a minor aggravated felony. The court noted that “the Nevada statute does not require proof that the offender participated in sexual conduct with a minor, as required under the first two elements of the federal generic definition. That requirement is grounded in the ordinary meaning of ‘sexual abuse.’” “The Nevada statute punishes possession of a visual depiction of a minor engaged in sexual conduct, but knowing and willful possession of the image alone renders an offender guilty. The offender himself need not have participated in any form of sexual conduct with the minor who is depicted in the image.” “With a possession-only offense such as N.R.S. § 200.730, the minor depicted in the image is not the direct object of the offender’s conduct, which is a necessary predicate for the offense to qualify as ‘sexual abuse of a minor.’”

The court remanded for the agency to address in the first instance if the conviction qualified as an aggravated felony related to child pornography, but the government admitted that statute is likely overbroad compared to the generic definition of that aggravated felony.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/01/17-70929.pdf

Ninth Circuit Certifies Question of Divisibility of AZ Drug Statutes to AZ Supreme Court

The Ninth Circuit has certified the question of whether Arizona’s drug statutes are divisible with respect to the identity of the substances regulated.

The order in Romero=Millan v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/04/16-73915.pdf

Ninth Circuit Finds that Failure to Comply with Regulation does not Deprive Immigration Court of Jurisdiction

The Ninth Circuit has determined that the failure to include the address of the Immigration Court where a Notice to Appear will be filed does not deprive the Immigration Court of jurisdiction over the removal proceedings. The regulatory violation is cured by the subsequent issuance of a notice of hearing with the location information. The court deferred to the Board of Immigration Appeals’ decision in Matter of Rosales Vargas.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/05/18-70855.pdf

Ninth Circuit Grants Rehearing En Banc Regarding Derivative U Visa Spouses

The Ninth Circuit has granted a petition for en banc rehearing of Tovar v. Zuchowski, a case construing the definition of a derivative spouses for U visa purposes.

The order granting the petition can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/07/18-35072_en%20banc_order.pdf

My blog post on the original 3-judge panel decision can be found here:

http://www.sabrinadamast.com/journal/2020/2/1/ninth-circuit-affirms-u-visa-regulations-governing-derivative-spouses

Ninth Circuit Rejects Settled Course of Adjudication Doctrine

The Ninth Circuit affirmed the Board of Immigration Appeals’ (BIA) refusal to exercise its sua sponte authority to reopen or reconsider the removal order of a deported lawful permanent resident after the Ninth Circuit determined that her conviction was not a deportable offense. The court declined to adopt the “settled course of adjudication” doctrine (which would have required the court to recognize the BIA has a settled policy of reopening cases under similar circumstances), finding that the doctrine is barred by the general rule that a federal court has no jurisdiction to review the BIA’s refusal to exercise its sua sponte authority. “Because the jurisdictional bar still applies, we have no authority to consider the consistency of the BIA’s decisions, or to even begin comparing the circumstances of the present case against the circumstances in past cases where sua sponte relief was granted.”

The court also found that the Board’s refusal to exercise equitable tolling was reasonable when the petitioner could have raised the same arguments on appeal that eventually were recognized by the Ninth Circuit in later case law. “We infer this to mean that, regardless of whether the change in law effected by Lopez-Valencia was ‘fundamental,’ Lona was not entitled to equitable tolling because (1) she failed to act with due diligence in discovering and raising the error asserted by Lopez-Valencia before the BIA and later, successfully, before us; and (2) she failed to do so despite the lack of impediments ‘to obtain[ing] vital information bearing on the existence of the claim.’ We agree.”

The full text of Lona v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/15/17-70329.pdf

Eighth Circuit Finds MN Sex Crimes to be CIMTs

The Eighth Circuit has determined that Minnesota convictions for Criminal Sexual Conduct in the Fifth Degree and Failure to Register as a Sex Offender are both crimes involving moral turpitude. In so doing, the court deferred to the Board of Immigration Appeals’ decision in Matter of Tobar-Lobo. “We see no bright line rule that excludes a regulatory offense from the scope of the statute when it involves reprehensible conduct and a culpable mental state.”

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

https://ecf.ca8.uscourts.gov/opndir/20/05/183011P.pdf

Eighth Circuit Finds VA Drug Statute Divisible

The Eighth Circuit has determined that a Virginia drug statute is divisible with respect to the substances regulated by the statute.

The full text of United States v. Vanoy can be found here:

https://ecf.ca8.uscourts.gov/opndir/20/04/183165P.pdf

Fourth Circuit Finds VA Drug Statute Divisible

The Fourth Circuit has determined that a Virginia drug statute is divisible with respect to the identity of the controlled substance. As such, a conviction for distribution of cocaine as an accommodation is an aggravated felony and a controlled substance violation.

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

ca4.uscourts.gov/opinions/181292.P.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

Sixth Circuit Addresses Corroborating Evidence and Nexus for Withholding of Removal

The Sixth Circuit has overturned a negative corroborating evidence determination in a withholding of removal case because the applicant was not given the opportunity to explain the absence of the corroborating evidence. The court further determined that an affidavit from the applicant’s sister was not reasonably available because she lived a 30-60 minute walk from a telephone that she had to pay to use, and the applicant accordingly only spoke with her about once per year. An affidavit was from the applicant’s mother was also unavailable because she still lived with the persecutor and because she could not write. Finally, the court determined that a withholding of removal applicant need only show that a protected ground is “a reason,” not “one central reason,” for the harm he suffered or fears suffering.

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

https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0155p-06.pdf

Third Circuit Confirms that Petitioner has Constitutional Right to Effective Counsel when Seeking Discretionary Relief

The Third Circuit has confirmed that a petitioner seeking cancellation of removal (a discretionary form of relief) still has a Fifth Amendment right to due process, including effective assistance of counsel. Thus, even an applicant for discretionary relief may assert an ineffective assistance of counsel claim, which is reviewable by the federal appellate court.

The full text of Calderon-Rojas v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/192332p.pdf

Third Circuit Prohibits Retroactive Application of Matter of Diaz-Lizarraga

The Third Circuit has determined that the Board of Immigration Appeals’ decision in Matter of Diaz-Lizarraga, which broadened the definition of a theft-related crime involving moral turpitude, cannot be applied retroactively to a conviction sustained before the decision in Diaz-Lizarraga.

The full text of Francisco-Lopez v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/192700p.pdf

Second Circuit Remands for Further Consideration of Police Ability to Protect

The Second Circuit has remanded the withholding of removal application of a former Jamaican police officer for further analysis of the Jamaican police force’s ability to protect him from harm. The court noted that while the police warned the petitioner that gang members were planning to kidnap his child, they did nothing to assist him in preventing the kidnapping, and in fact, told him he was “on his own.” The court, however, rejected the petitioner’s challenges to the new “unable to protect” standard articulated in Matter of A-B-, and remanded for the court to fully consider the evidence of the police force’s inability to protect using that new standard. The court also remanded for the agency to determine what significance a finding of government inability to protect would have for petitioner’s request for protection under the Convention Against Torture.

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

https://www.ca2.uscourts.gov/decisions/isysquery/ec637e79-751a-4c7c-be42-250e07dfdb75/22/doc/16-940_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/ec637e79-751a-4c7c-be42-250e07dfdb75/22/hilite/

First Circuit Finds Jurisdiction to Review Legal Errors in Denials of Sua Sponte Motions to Reopen

The First Circuit has determined that it has jurisdiction to review constitutional claims or errors of law that arise in the agency’s adjudication of sua sponte motions to reopen. The Court also found that the “BIA departed from its settled course of accepting full and unconditional pardons granted by a state's supreme pardoning authority when the pardon is executive, rather than legislative, in nature. The BIA's policy has been shaped by its prior decisions accepting pardons from authorities whose powers were conferred by statute and rejecting pardons that were not deliberative, even when constitutionally guaranteed. From these BIA decisions, it is evident that "executive in nature" does not require the power to pardon be presently inscribed in a state's constitution. As the BIA premised its denial of Thompson's motion to reopen on the insufficiency of a Connecticut pardon for purposes of the Pardon Waiver Clause, we remand to the BIA to determine whether to reopen Thompson's immigration proceedings sua sponte against the correct legal background.”

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

http://media.ca1.uscourts.gov/pdf.opinions/18-1823P-01A.pdf

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

BIA Finds Haitian Asylum Applicant to have been Firmly Resettled in Brazil

The Board of Immigration Appeals (Board) determined that a Haitian asylum applicant had been firmly resettled in Brazil when he was offered permanent residence, even though he did not complete the ministerial steps required to claim that residence. “For purposes of determining whether an alien is subject to the firm resettlement bar to asylum, a viable and available offer to apply for permanent residence in a country of refuge is not negated by the alien’s unwillingness or reluctance to satisfy the terms for acceptance.” “An alien also cannot nullify an offer of firm resettlement by allowing his qualifications for permanent residence to lapse or by purposefully becoming ineligible.”

“[T]he evidence he presented of discrimination and criminal activity against Haitians in Brazil is limited in scope and does not establish that the Brazilian Government actively supports any mistreatment of Haitians that would constitute a conscious and substantial restriction of the respondent’s residence. Moreover, there is no evidence that the Brazilian Government restricted his right to travel or any other common, basic human right, with the exception of the right to vote, which is generally reserved to citizens.“

The full text of Matter of K-S-E- can be found here:
https://www.justice.gov/eoir/page/file/1267846/download

BIA Denies Cancellation Case on Hardship

The Board of Immigration Appeals (Board) has denied a cancellation of removal for non-lawful permanent residents case for an applicant who had six qualifying relatives (five U.S.-citizen children and one lawful permanent resident mother). The Board noted that three of the children and the mother had health issues. However, because the applicant and his partner gave conflicting testimony about where the children would live if he was deported, and his partner and mother gave conflicting testimony about the cost of his daughter’s medication in Guatemala, the Board agreed that he had not demonstrated the requisite hardship.

The full text of Matter of J-J-G- can be found here:

https://www.justice.gov/eoir/page/file/1264601/download

SCOTUS Addresses Stop Time Rule for LPR Cancellation

The Supreme Court has determined that a criminal offense can trigger the stop-time rule for cancellation of removal for lawful permanent residents even if the offense is not the basis for the charge of removability. Accordingly, a lawful permanent resident can trigger the stop-time rule with an offense that triggers inadmissibility, even if the lawful permanent resident is not seeking admission.

The full text of Barton v. Barr can be found here:
https://www.supremecourt.gov/opinions/19pdf/18-725_f2bh.pdf

Eleventh Circuit Finds that FL Aggravated Battery Conviction is Crime of Violence

The Eleventh Circuit has determined that a Florida conviction for aggravated battery is divisible, and the subsection criminalizing battery using a deadly weapon is a crime of violence.

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

http://media.ca11.uscourts.gov/opinions/pub/files/201913073.pdf

Ninth Circuit Construes "No Fault of their Own" Exception to Maintaining Lawful Status

The Ninth Circuit has determined that an adjustment applicant who relied on her attorney to file an extension of her H-1B status has fallen out of status through no fault of her own. “An applicant cannot be regarded as personally responsible for failing to maintain lawful status when that failure occurs due to a mistake on her lawyer’s part. An applicant who relies on the assistance of counsel to maintain lawful status will usually have no basis to question the soundness of the advice she receives from her lawyer. If the advice turns out to be erroneous and results in the applicant’s failure to maintain lawful status, no one using the term ‘fault’ in its ordinary sense would say that the applicant herself was to blame. If blame were assigned it would be placed on the attorney, whose job it is to know the intricacies of immigration law.“ The court also deemed 8 C.F.R. § 1245.1(d)(2) to be invalid to the extent that it does not recognize reasonable reliance on counsel’s advice as a failure to maintain status through no fault of the applicant.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/04/02/16-73509.pdf