Eleventh Circuit Denies IAC Claim

The Eleventh Circuit has held that the filing of a bar complaint is not sufficient to demonstrate that prior counsel was notified of the allegations against him and given an opportunity to respond because not all bar complaints lead to a notice being sent to the attorney. In addition, the filing of a bar complaint is a separate requirement under Matter of Lozada from notice to the attorney, and permitting the bar complaint to serve as notice would eviscerate the separate requirement of a bar complaint.

The full text of Point Du Jour v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201815235.pdf

SCOTUS Finds Jurisdiction to Review Factual Findings in CAT Cases

The Supreme Court has determined that federal appellate courts have jurisdiction to review the agency’s factual findings related to a claims protection under the Convention Against Torture (CAT) even if the person has been found removable for a conviction that would normally strip the court’s jurisdiction to review factual findings.

“A CAT order is not itself a final order of removal because it is not an order ‘concluding that the alien is deportable or ordering deportation.’ As the Government acknowledges, a CAT order does not disturb the final order of removal. An order granting CAT relief means only that, notwithstanding the order of removal, the noncitizen may not be removed to the designated country of removal, at least until conditions change in that country. But the noncitizen still ‘may be removed at any time to another country where he or she is not likely to be tortured.’” The factual findings would be reviewed under the deferential substantial evidence standard.

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

https://www.supremecourt.gov/opinions/19pdf/18-1432_e2pg.pdf

Ninth Circuit Revisits Land Ownership-Based Particular Social Groups

Seven years after holding that “wealthy landowners” may be a particular social group, the Ninth Circuit has now rejected an asylum claim by the same petitioner. Noting that intervening case law required an asylum applicant to demonstrate that the society in question perceived the proposed group as a group, the court held that the record did not establish that Colombian society perceives wealth landowners as a group. This case is a good reminder of the importance of building a record of societal perception into the record.

The full text of Cordoba v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/16/17-71655.pdf

Ninth Circuit finds that CA Under the Influence of a Controlled Substance Statute is Divisible

The Ninth Circuit has determined that the California statute criminalizing being under the influence of a controlled substance is divisible with respect to the identity of the substance.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/08/13-74391.pdf

Ninth Circuit Rejects Equal Protection Challenge to Derivative Citizenship Statute

The Ninth Circuit has rejected an equal protection challenge to derivative citizenship statute found at 8 USC 1432(a)(3).

“Section 1432(a)(3)’s second clause discriminates on the basis of gender. It grants citizenship upon ‘the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation,’ but it does not grant citizenship in the converse scenario: upon the naturalization of the father if the child was born out of wedlock and the child’s maternity has not been established by legitimation.” “Petitioner, however, does not challenge the clearly disparate treatment identified above. Nor could she, because both her paternity and her maternity were established during her youth. Instead, she argues that the statute unconstitutionally discriminates ‘because it does not contain any equivalent provision stating that a child automatically becomes a citizen upon the naturalization of the father if the child was born out of wedlock and the mother has relinquished parental rights’ or has abandoned the child.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/04/15-72942.pdf

Ninth Circuit Finds Violation of Asylees' Due Process Rights

The Ninth Circuit has found that the admission of a Report on Investigation violated the petitioner’s due process rights. The Immigration Judge (IJ) acknowledged the report lacked detail. The IJ also acknowledged that the report concluded that four documents presented by the petitioner were likely fraudulent, based on exemplars that Petitioner had no access to. The IJ noted that the petitioner was able to prove that at least two of those documents were not, in fact, fraudulent. The petitioner had no ability to cross-examine the investigators or the drafter of the report. Nonetheless, the IJ relied on the report to find that the petitioner had committed fraud to obtain his asylum status, to terminate that status, and to deny petitioner’s renewed application for asylum on credibility grounds.

“The single-page ROI refers to unnamed investigators and ‘exemplars’ of documents that purportedly confirm that some of Petitioner’s asylum application materials are fraudulent. However, DHS did not identify any of the named individuals, present supporting evidence to explain the nature of the investigation, produce the referenced exemplars, or proffer any government witnesses about the alleged fraud. Thus, the Grigoryans were not allowed a meaningful opportunity to rebut the government’s fraud allegations.” “The ROI’s indicia of reliability are further undermined because, despite their limited ability to rebut the ROI’s findings, the Grigoryans were nonetheless able to show that half of the identified documents were not fraudulent. In addition, the mere fact that the ROI is a DHS document does not absolve the government from affording the Grigoryans a fair opportunity to rebut its assertions.”

“DHS must not only show that certain documents submitted with Petitioner’s original application for asylum were fraudulent. The government’s burden here is much higher: It must show that Petitioner would not have been granted asylum in 2001 but for the fraudulent documents. If, and only if, the government meets this heavy burden, does the burden shift to the Grigoryans to prove they are entitled to relief from deportation.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/02/16-73652.pdf

Ninth Circuit finds that CA Conviction for Vehicular Flight from Police Against Traffic is Categorically a CIMT

The Ninth Circuit has determined that a California conviction for vehicular flight from the police while driving against traffic is categorically a crime involving moral turpitude. While the court acknowledged that the statute does not require an intent to injure anyone or actual injury to any victims, it determined that non-fraudulent crimes that seriously endanger others can also fall within the ambit of a crime involving moral turpitude. The court noted that the statute requires willfulness—an elevated mens rea—with respect to both fleeing a pursuing peace officer and driving in the wrong direction during flight.

The full text of Lepe Moran v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/02/18-73167.pdf

Eighth Circuit Finds that MN 5th Degree Possession of Controlled Substance is Divisible

The Eighth Circuit has determined that the Minnesota statute criminalizing fifth-degree possession of a controlled substance is divisible, and that the identity of the controlled substance is an element of the offense.

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

https://ecf.ca8.uscourts.gov/opndir/20/05/182638P.pdf

Seventh Circuit Declines to Address Challenge to Two-Step Stop Time Rule

The Seventh Circuit has declined to address a challenge to the two-step stop time rule put forth by the Board of Immigration Appeals (Board) in Matter of Mendoza-Hernandez. Instead, the court simply held that the petitioner waited too long to bring the challenge, as she had not even applied for cancellation of removal when she was in proceedings. This decision is oddly reasoned in my view, as the Board did not deny the motion to reopen on timeliness grounds, but instead, assumed the petitioner was entitled to equitable tolling.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D05-29/C:19-2375:J:Easterbrook:aut:T:fnOp:N:2523785:S:0

Seventh Circuit Upholds Waiver of Rights by Minor who Entered on Visa Waiver

The Seventh Circuit has upheld the validity of a waiver to challenge a removal order for a petitioner who entered the United States as a minor on the visa waiver program, and whose parent signed the waiver on his behalf.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D06-16/C:19-2055:J:Ripple:aut:T:fnOp:N:2531868:S:0

Sixth Circuit Defers to BIA on Jurisdiction over UAC Asylum

The Sixth Circuit has deferred to the Board of Immigration Appeals’ decision in Matter of M-A-C-O- and determined that an Immigration Judge properly assumed jurisdiction over the asylum application of an unaccompanied minor who did not file his asylum application until after his 18th birthday.

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

https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0178p-06.pdf

Fifth Circuit Construes TX Drug Conviction

The Fifth Circuit has acknowledged that a Texas cocaine statute, on its face, is broader than federal drug statutes, because it also criminalizes offenses involving the position isomers of cocaine. However, the court found that the petitioner did not prove a realistic probability that Texas courts prosecute offenses involving position isomers of cocaine.

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

http://www.ca5.uscourts.gov/opinions/pub/18/18-60748-CV0.pdf

Second Circuit Finds that CT Conviction for Unpermitted Carrying of a Pistol or Revolver is not Firearms Offense

The Second Circuit has determined that a Connecticut conviction for the unpermitted carrying of a pistol or revolver is not a firearms offense because the state statute criminalizes conduct involving certain antique firearms that is not covered by the federal definition of a firearms offense. “Connecticut criminalizes unlicensed carrying and transportation of loaded antique firearms; the federal definition excludes such conduct.” In addition, “the text of the Connecticut statute excludes only the ‘transporting’ of ‘unloaded’ antique pistols or revolvers from its general prohibition on ‘carrying’ unpermitted pistols and revolvers ‘upon [one’s] person.’ The INA definition of ‘firearm offense,’ in contrast, expressly excludes all conduct involving antique firearms.” The court also rejected the application of the realistic probability test, finding that the plain language of the statute demonstrated its overbreadth.

The full text of Williams v. Barr can be found here:
https://www.ca2.uscourts.gov/decisions/isysquery/0c7b55a5-be7b-43f5-ac93-5989936afec3/28/doc/18-2535_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/0c7b55a5-be7b-43f5-ac93-5989936afec3/28/hilite/

Second Circuit Finds that Misprision of a Felony is not CIMT

The Second Circuit has determined that a federal conviction for misprision of a felony is not a crime involving moral turpitude because it has no evil intent requirement. “The BIA’s decision that misprision categorically constitutes a CIMT is also unmoored from its own precedent. The BIA and courts have consistently 12 declared offenses that involve appreciably higher levels of moral culpability to be 13 insufficiently grave to qualify as CIMTs.” The Second Circuit decision aligns it with similar case law in the Ninth Circuit.

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

https://www.ca2.uscourts.gov/decisions/isysquery/0c7b55a5-be7b-43f5-ac93-5989936afec3/27/doc/18-801_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/0c7b55a5-be7b-43f5-ac93-5989936afec3/27/hilite/

Second Circuit Finds that CT Third Degree Sexual Assault Conviction is Crime of Violence

The Second Circuit has determined that a Connecticut conviction for sexual assault in the third degree is a crime of violence because it requires use of a dangerous instrument, actual physical force or violence, or superior physical strength, and thus, necessarily includes the use or threatened use of violent force as an element.

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

https://www.ca2.uscourts.gov/decisions/isysquery/0c7b55a5-be7b-43f5-ac93-5989936afec3/24/doc/16-296_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/0c7b55a5-be7b-43f5-ac93-5989936afec3/24/hilite/

Second Circuit Remands CAT Claim

The Second Circuit has determined that “[t]o hold categorically that an applicant for CAT relief must be threatened more than once and that such a person must suffer physical harm before fleeing is an error of law.” “Martinez’s testimony, which the IJ credited, established that she and her children were facing a sustained 17 campaign of violent confrontations. These included when gang 18 members flashed a knife at Martinez and when they attempted to force Martinez’s pregnant daughter into a secluded area and threatened to cut her child out of her body.”

The full text of Martinez De Artiga v. Barr can be found here:

ca2.uscourts.gov/decisions/isysquery/0c7b55a5-be7b-43f5-ac93-5989936afec3/7/doc/17-2898_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/0c7b55a5-be7b-43f5-ac93-5989936afec3/7/hilite/

First Circuit Finds IJ Violated Asylum Seeker's Right to Counsel

The First Circuit has determined that an Immigration Judge violated an asylum seeker’s right to counsel by only giving her 14 business days to secure counsel after she learned that her bond attorney could not continue representation. In addition, the court noted the many arguments made by counsel in the BIA appeal, which demonstrate that the presence of counsel at the IJ level likely would’ve had a material outcome on the proceedings.

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

http://media.ca1.uscourts.gov/pdf.opinions/19-1524P-01A.pdf

SCOTUS Overturns DACA Rescission

The Supreme Court has determined that the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program was arbitrary and capricious. In so doing, the Court relied only on the reasons given by Acting Secretary of Homeland Security (DHS) Elaine Duke in her original rescission memo, and not on the subsequent post hoc justifications presented by Secretary Kirstjen Nielsen. The Court further rejected Duke’s reliance on the Fifth Circuit’s decision finding that expanded DACA and Deferred Action for Parents of Americans (DAPA) were unlawful, insomuch as the Fifth Circuit had relied on the eligibility for benefits accorded to those who would qualify for expanded DACA and DAPA, and not on the forbearance of removal that would be accorded to these individuals. Thus, the Court concluded, Secretary Duke, if she was truly motivated by concerns that DACA was illegal given the Fifth Circuit’s decision, could have left the removal forbearance piece of DACA in place, while only removing the eligibility for certain benefits, such as work authorization, Social Security benefits, and Medicare. The Court also faulted Duke for not considering what reliance DACA recipients and their families, employers, and schools may have had on the original memo creating the DACA program. “Acting Secretary Duke should have considered those matters but did not. That failure was arbitrary and capricious in violation of the APA.”

The Court remanded the case to allow the agency to consider the issue anew. As such, the DHS could again try to rescind DACA using a more thoughtful and comprehensive decision-making process.

The full text of DHS v. Regents of University of CA can be found here:

https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf

BIA Finds that Failure to Check Classification Box does not Render NTA Defective

The Board of Immigration Appeals has determined that the failure to check one of three classification boxes (arriving alien, alien present with admission or parole, or admitted alien) on a Notice to Appear does not deprive of an Immigration Judge of jurisdiction over a removal proceeding and does not warrant termination of the removal proceedings of an individual returned to Mexico under the Migrant Protection Protocols.

The full text of Matter of Herrera-Vasquez can be found here:

https://www.justice.gov/eoir/page/file/1274901/download

Tenth Circuit Rules that Departure Bar Regulation does not Prevent Agency from Exercising Sua Sponte Authority to Reopen

The Tenth Circuit has ruled that the regulatory departure bar does not prevent the Immigration Judge from exercising his sua sponte authority to reopen proceedings. The departure bar applies only to a motion to reopen filed by one of the parties, which differs from an Immigration Judge’s authority to sua sponte reopen proceedings. ‘Thus, the IJ may move sua sponte to reopen removal proceedings even when either or both the ninety-day time bar or the post-departure bar would defeat an alien’s ‘motion to reopen’.”

The full text of Reyes-Vargas v. Barr can be found here:

https://www.ca10.uscourts.gov/opinions/17/17-9549.pdf