Two Courts Vacate Third Country Asylum Ban

The Ninth Circuit and the District of DC have both determined that the third country asylum ban - which renders most individuals ineligible for asylum if they transited through a third country en route to the US southern border - is unlawful.

The Ninth Circuit’s decision in East Bay Sanctuary Covenant v. Barr (which is currently stayed) can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/07/06/19-16487.pdf

The District of DC’s decision in Capitol Area Immigrants Rights’ Coalition v. Trump can be found here:

https://drive.google.com/file/d/1rth46otzfmBz07LxDIKlZzNlpFjk-CAD/view

This is excellent news for asylum seekers, as well as individuals whose asylum claims were denied solely on the basis of the third country ban. These latter individuals may now be able to reopen their proceedings to again pursue their asylum claims.

Ninth Circuit Affirms that CA Petty Theft is a CIMT (but with a Twist!)

The Ninth Circuit has reaffirmed its prior precedent that a conviction in California for petty theft is a crime involving moral turpitude (CIMT). Although the court recognized that the California Supreme Court had clarified that non-permanent takings are criminalized under the petty theft statute (a conclusion that would render any pre-Diaz Lizarraga convictions to be overbroad as CIMTs), it also held that it was bound by the court’s prior precedent that petty theft is a CIMT. Only an en banc court could reverse that precedent.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/07/10/16-70130.pdf

An amended opinion can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/30/16-70130.pdf

Ninth Circuit Finds that OR Conviction for Manufacture or Delivery of Marijuana is Divisible

The Ninth Circuit has determined that an Oregon conviction for manufacturing or delivering marijuana is divisible between delivery and manufacture. Applying the modified categorical approach, the court determined that the petitioner was convicted of manufacturing marijuana, a felony offense under the Controlled Substance Act (CSA). The court recognized that delivery of marijuana would not be an aggravated felony because Oregon delivery offenses include solicitation offenses, which are not criminalized in the CSA.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/07/21/18-72731.pdf

Eighth Circuit Finds that MN Conviction for Obstruction of Legal Process is not Categorically a CIMT

The Eighth Circuit has determined that a Minnesota conviction for obstruction of legal process is not categorically a crime involving moral turpitude. The court emphasized that the statute defines a general intent crime, and “ there is a realistic probability that Minnesota would apply its obstruction of legal process statute to cases that lacked the requisite degree of scienter necessary to constitute a crime involving moral turpitude.” Moreover, the conduct criminalized “need not result in any harm or injury whatsoever.”

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

https://ecf.ca8.uscourts.gov/opndir/20/06/191285P.pdf

Seventh Circuit Rejects Matter of Castro Tum

The Seventh Circuit has rejected Matter of Castro Tum and reaffirmed the agency’s general authority to administratively close cases.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D06-26/C:19-1999:J:Barrett:aut:T:fnOp:N:2536740:S:0

Seventh Circuit finds that IL Definition of Cocaine is Overbroad

The Seventh Circuit has determined that the Illinois definition of cocaine, which includes optical, positional, and geometric isomers, is overbroad as compared to the definition of cocaine in the Controlled Substance Act, which includes only optical and geometric isomers.

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

https://cases.justia.com/federal/appellate-courts/ca7/20-1034/20-1034-2020-07-20.pdf?ts=1595264438

Sixth Circuit Remands Whistleblower's Asylum Claim

The Sixth Circuit has remanded a whistleblower’s asylum claim where the agency indicated that the corrupt government officials targeted the asylum seeker because he interfered with their business arrangements, and not because of his political opinions. “In cases such as those cited above, where a petitioner seeks asylum after refusing to take part in a corrupt government scheme, the corrupt officials will almost always be motivated, at least in part, by their own pecuniary interest. But where, as in Skripkov’s case, a petitioner’s anticorruption activities manifest themselves through acts of public protest, the government officials’ pecuniary interest and their desire to quell the petitioner’s political activities typically become inseparable.”

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

https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0223p-06.pdf

Fourth Circuit Holds that VA Conviction for Discharge of a Firearm is not a Firearms Offense

The Fourth Circuit has determined that a Virginia statute criminalizing willful discharge of a firearm in a public place without resulting bodily injury is not a firearms offenses because it does not contain an antique firearms exception. “We hold that the plain language of Virginia Code § 18.2-280(A), as supported by later acts of Virginia’s legislature and by decisions of its appellate courts, prohibits conduct involving the use of ‘any firearm,’ including antique firearms. Thus, Gordon was not required to identify a prosecution under the Virginia statute involving an antique firearm to defend against removal.”

“Our conclusion is not affected by the government’s claim that the Virginia conviction nevertheless qualifies as a removable offense because Gordon failed to present evidence of a conviction in Virginia under Section 18.2-280(A) for the discharge of an antique firearm.” “The flaw in the government’s argument, however, is its failure to recognize that when the state, through plain statutory language, has defined the reach of a state statute to include conduct that the federal offense does not, the categorical analysis is complete; there is no categorical match.”

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

https://www.ca4.uscourts.gov/Opinions/191539.P.pdf

Fourth Circuit Holds that VA Convictions for Leaving an Accident and Identity Theft are not Categorically CIMTs

The Fourth Circuit has determined that the Virginia statutes governing leaving an accident and identity theft do not match the generic definition of a crime involving moral turpitude.

“[T]he failure-to-stop conviction requires no culpable mental state or reprehensible conduct. As to the culpable mental state, Va. Code Ann. § 46.2–894 does not require any showing of intent, nor has the Virginia Supreme Court read an element of intent into the statute; thus, Va. Code Ann. § 46.2–894 cannot have the required culpable mental state to qualify as a CIMT. As the Government acknowledges, the statute does not require actual knowledge that an accident or injury took place, but rather that the perpetrator knew or should have known that the accident resulted in injury or property damage.”

“The Supreme Court of Virginia has made it clear that it is possible for a defendant to be guilty of violating Va. Code Ann. § 46.2–894 for merely failing to satisfy the reporting requirements in the statute, even if the defendant remained at the scene of the accident. The Government does not argue that failing to comply with the reporting requirements categorically violates a social norm. And for good reason. We cannot see how failing to comply with the reporting requirements (e.g., failing to report one’s name, address, driver’s license number, and vehicle registration number) categorically violates a social norm. Failure to comply with the reporting requirements is not behavior ‘that shocks the public conscience as being inherently base, vile, or depraved.’”

The court noted that the identify theft statute does not require an intent to deceive the government or obstruct a governmental function. “In Virginia, it is a violation of Va. Code Ann. § 18.2–186.3(B1) to provide false identification to someone who is not law enforcement, such as a ‘loss prevention manager at a store investigating a shoplifting accident.’” “Further, Va. Code Ann. § 18.2–186.3(B1) does not require a perpetrator to use the name of an actual person, as the statute proscribes the use of the identity of a ‘false or a fictitious person’.”

The full text of Nunez-Vasquez v. Barr can be found here:

https://www.ca4.uscourts.gov/opinions/191841.P.pdf

Third Circuit Reaffirms Constitutional Right to a Prolonged Detention Bond Hearing

The Third Circuit has reaffirmed that a mandatory detainee under 236(c) can bring an as-applied constitutional challenge to prolonged detention. A district court hearing a habeas claim in these circumstances should consider four factors: 1) the length of detention; 2) whether detention is likely to continue; 3) the reasons for delay; and 4) whether the conditions of confinement are meaningfully different from criminal detention. Once a bond hearing is ordered in a prolonged detention setting, the government bears the burden of proving by clear and convincing evidence that the detainee is a flight risk or a danger to the community.

The full text of German Santos v. Warden Pike County Correctional Facility can be found here:

https://www2.ca3.uscourts.gov/opinarch/192663p.pdf

Third Circuit Holds that TPS is not an Admission

The Third Circuit has held that a grant of Temporary Protected Status is not an admission for the purposes of adjustment of status.

The full text of Sanchez v. Secretary of DHS can be found here:

https://www2.ca3.uscourts.gov/opinarch/191311p.pdf

Third Circuit Clarifies that Serious Physical Injury is not Required to Show Past Persecution

The Third Circuit has determined that its precedent does not require a showing of serious physical injury (or any physical harm at all) in order to demonstrate past persecution. Similarly, the court clarified that threats of harm need not be imminent in order to rise to the level of persecution.

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

https://www2.ca3.uscourts.gov/opinarch/193658p.pdf

Second Circuit finds that Petitioner does not Need to File a New I-589 with a Changed Country Conditions MTR

The Second Circuit has determined that a petitioner who sought reopening based on changed country conditions, and who had previously filed an asylum application in Immigration Court, was not required to file a new application with the motion to reopen.

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

https://law.justia.com/cases/federal/appellate-courts/ca2/18-1440/18-1440-2020-06-23.html

Second Circuit Holds that Declaration Need not Make out Prima Facie Case for Suppression

The Second Circuit has held that a petitioner’s declaration, on its own, need not make out a prima facie case for suppression in order for the petitioner to be entitled to an evidentiary hearing. Rather, if the declaration could support a basis for exclusion, then it must be supported by testimony. After testimony, if the petitioner has made out a prima facie case, then the burden of proof shifts to the government to show that the evidence should be admitted. “It is only once the affidavit has been considered and a hearing held that the applicant must have made a prima facie showing for the burden to shift to the government and suppression to be determined.”

“Millan-Hernandez was no more than a passenger in the vehicle that was stopped for a possible traffic violation. As the Police Report reflects, even the driver was not Millan-Hernandez was no more than a passenger in the vehicle that was stopped for a possible traffic violation. As the Police Report reflects, even the driver was not accused or suspected of a crime, he was subject to no alcohol-related examination, and he received no citation for the swerve. These facts raise significant questions about the legality of the prolonged detention of the driver and the passengers. Although the timeline is inexact, the documents submitted by Millan-Hernandez leave little doubt that the July 2017 stop was extended beyond what was reasonably necessary to address and resolve the immediate traffic concern: The traffic inquiry lasted a matter of minutes; the occupants of the vehicle were then detained for approximately two hours as the local officer directed the group to await the arrival of CBP agents.”

“Our review of the record leads us to conclude that Millan-Hernandez presented sufficient evidence that her seizure was based on her race to entitle her to an evidentiary hearing on the issue. She declared in her affidavit that, once the officer determined that the car’s driver had a foreign passport, he did not question the driver further as to the alleged traffic violation before demanding that all of the passengers produce their ‘papers.’ The Police Report is consistent with Millan-Hernandez’s account. Neither it nor anything else in the record reveals an alternative plausible basis for questioning and detaining the passengers, and the officer did not report inquiring of the passengers about any traffic or civil infractions, nor issuing any citations.” “We have recognized that, when a law enforcement officer detains and questions an individual about her immigration status although she is not suspected of a crime, those circumstances offer a strong suggestion that the search or seizure was improperly based on race.”

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

https://www.ca2.uscourts.gov/decisions/isysquery/5255578c-4d1d-4db5-ac16-bbbd78d43c08/23/doc/18-2107_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/5255578c-4d1d-4db5-ac16-bbbd78d43c08/23/hilite/

Second Circuit Finds that Changed Circumstances Arising After Filing of I-589 can Toll One Year Filing Deadline

The Second Circuit has determined that changed circumstances arising after the filing of a Form I-589 can still be used to invoke an exception to the one-year filing deadline for asylum. “Our reading of § 1158(a)(2)(D) and these other provisions of the INA persuades us that Congress did not intend to bar the agency from considering 7 the asylum application of an applicant who shows changed circumstances that 8 first arise after the application is filed, and did not require that the changed 9 circumstances even relate to the delay in filing. To the contrary, Congress clearly 10 contemplated that the agency could consider a change in circumstances such as 11 the one alleged here at several stages in an applicant’s proceedings—even when 12 the change bears no relation to the reason for the delay, and even as late as a 13 motion to reopen a final order of removal.”

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

https://www.ca2.uscourts.gov/decisions/isysquery/5255578c-4d1d-4db5-ac16-bbbd78d43c08/22/doc/17-982_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/5255578c-4d1d-4db5-ac16-bbbd78d43c08/22/hilite/8/22/hilite/

Second Circuit Finds that NY Firearms Convictions are not Firearms Offenses

The Second Circuit has determined that New York firearms statutes are not a categorical match to the federal definition of a firearms offense because they do not contain an antique firearms exception. The court reinforced that the realistic probability test has no role to play in the interpretation of a statute where its overbreadth is obvious on the face of the statute.

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

https://www.ca2.uscourts.gov/decisions/isysquery/5255578c-4d1d-4db5-ac16-bbbd78d43c08/16/doc/18-842_opn%2018-1479_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/5255578c-4d1d-4db5-ac16-bbbd78d43c08/16/hilite/

Second Circuit Applies Equitable Estoppel Doctrine in CSPA Case

The Second Circuit has applied the equitable estoppel doctrine to a case involving the Child Status Protection Act (CSPA). The petitioner had filed and adjustment of status application when she was 17 years old, as a derivative of her mother’s adjustment. The application arrived at USCIS a few days before the new visa bulletin went into effect, and thus, was premature. Instead of following agency policy, which was to reject such a filing, USCIS did not issue a rejection or a receipt notice, and failed to respond to service requests for three years. By the time the petitioner became aware that USCIS had no record of her adjustment application, she had aged out of her derivative status.

“USCIS's silence and inaction for the three years following the submission of Schwebel's 2007 application would reasonably suggest that the application was indeed being processed. For these reasons, we conclude that Schwebel reasonably relied on USCIS's inaction in believing that her 2007 application was being processed. In light of the ‘extraordinary circumstances’ here, where Schwebel's application was received by the agency just four days too early, and a visa remained available for another month and a half, the agency should have provided -- and indeed was required by its own procedures to provide -- reasonably prompt notice of the purported defect. If it had done so, Schwebel would likely have been able to resubmit her application within the application period. Because of USCIS's failure to provide reasonably prompt notice, Schwebel suffered great prejudice as she ‘aged out’ of the CSPA by the time another visa period opened. Her parents are now lawful permanent residents, and if the government's failures here are not rectified, there is a possibility that Schwebel will be separated from her family and removed from the country in which she has lived since she was eight years old.”

The full text of Schwebel v. Crandall can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/5255578c-4d1d-4db5-ac16-bbbd78d43c08/6/doc/18-3391_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/5255578c-4d1d-4db5-ac16-bbbd78d43c08/6/hilite/

CA Appellate Court Finds 1016.5 Advisements not Substitute for Attorney Advice

The California Court of Appeal, Second Appellate Division, has held that a trial court’s advisement of possible immigration consequences under Penal Code 1016.5 does not substitute for an attorney’s specific advisement of whether those consequences will, in fact, attach to their client’s plea. In this case, the defendant challenged a 1991 conviction for possession for sale of cocaine base, asserting that her defense counsel did not tell her that she would be permanently ineligible for permanent residency if she accepted the plea. The appellate court reversed the denial of her motion to vacate under Penal Code 1473.7.

The full text of People v. Ruiz can be found here:

http://sos.metnews.com/sos.cgi?0620//B296742

BIA Expands Definition of Marriage Fraud

The Board of Immigration Appeals has determined that an individual who sought a K-1 fiancee visa based on a sham engagement has conspired to enter into a marriage for the purpose of evading the immigration laws, and as such, is subject to the future consequences of a section 204(c) finding. “For purposes of section 204(c)(2) of the Act, a conspiracy requires an agreement to enter into a marriage for the purpose of evading the immigration laws and an overt act in furtherance of that agreement.“ “For the Attorney General to make such a ‘determination,’ there must be an overt act. The filing of a visa petition is an overt act in furtherance of the conspiracy. It is not enough, however, if two parties merely ‘agree’ to enter into a marriage for the purpose of evading the immigration laws but never engage in any other action or conduct that furthers that agreement.”

The full text of Matter of R.I. Ortega can be found here:

https://www.justice.gov/eoir/page/file/1287341/download

BIA Clarifies Standards for Changed Country Conditions MTR

The Board of Immigration Appeals has held that a respondent who was previously denied asylum on credibility grounds, and who seeks to reopen proceedings due to changed country conditions related to the same claim of persecution, must also present evidence to overcome the adverse credibility determination. “However, if newly submitted evidence is based on information independent of the prior adverse credibility finding, it must be addressed.”

The full text of Matter of F-S-N- can be found here:

https://www.justice.gov/eoir/page/file/1284876/download