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New Case Law
The Fourth Circuit has applied the Supreme Court’s decision in Barton v. Barr on the stop-time rule, and found that a lawful permanent resident who committed an offense that rendered him inadmissible within seven years of his admission was ineligible for cancellation of removal.
The full text of Argueta v. Barr can be found here:
The Third Circuit has sustained an appeal of a discretionary denial of asylum where the IJ granted withholding of removal. The court noted that 8 C.F.R. § 1208.16(e) provides that a denial of asylum shall be reconsidered when an applicant is denied asylum solely in the exercise of discretion and is subsequently granted withholding, and requires that the IJ take into account the reasons for the denial and reasonable alternatives available to the applicant such as reunification with the spouse or minor children in a third country. The IJ in the instant matter refused to consider the issue of family reunification or the significance of the petitioner having established a well-founded fear of persecution.
The court went on to adopt a non-exhaustive list of factors for a court to consider when evaluating whether asylum should be granted in the exercise of discretion.
Positive factors include:1) Family, business, community, and employment ties to the United States, and length of residence and property ownership in this country; 2) Evidence of hardship to the alien and his family if deported to any country, or if denied asylum such that the alien cannot be reunited with family members (as derivative asylees) in this country; 3) Evidence of good character, value, or service to the community, including proof of genuine rehabilitation if a criminal record is present; 4) General humanitarian reasons, such as age or health; [and] 5) Evidence of severe past persecution and/or well-founded fear of future persecution, including consideration of other relief granted or denied the applicant (e.g., withholding of removal or CAT protection).
Negative factors include: 1) Nature and underlying circumstances of the exclusion ground; 2) Presence of significant violations of immigration laws; 3) Presence of a criminal record and the nature, recency, and seriousness of that record, including evidence of recidivism; 4) Lack of candor with immigration officials, including an actual adverse credibility finding by the IJ; [and] 5) Other evidence that indicates bad character or undesirability for permanent residence in the United States.
Based largely on the IJ’s refusal to consider family reunification, the court remanded the case to the agency.
The full text of Sathanthrasa v. Attorney General can be found here:
The Third Circuit has determined that the new definition of a theft-related crime involving moral turpitude articulated in Matter of Diaz Lizarraga cannot be applied retroactively.
The full text of Francisco-Lopez v. Attorney General can be found here:
The Third Circuit has determined that Pennsylvania conviction for involuntary deviate sexual intercourse with a minor is not a sexual abuse of a minor-related aggravated felony. The court noted that the Supreme Court’s decision in Esquivel-Quintana did not purport to give a full definition of sexual abuse of a minor, ruling only on the narrow issue of how the age of victim and the age difference between the victim and perpetrator in a statutory rape offense could inform the analysis of whether conduct qualified as sexual abuse.
The court went on to conclude that given the severe consequences of an aggravated felony finding, a mens rea of recklessness could not suffice to qualify a conviction as an aggravated felony, but rather, a mens rea of knowingly is required with respect to the sex act in question.
Turning to the Pennsylvania statute at issue, the court noted that because the statute itself lacked a mens rea, the Pennsylvania gap-filling measure dictated that the minimum mens rea is recklessness. As such, the conviction is not a categorical match to the generic definition of a sexual abuse of a minor aggravated felony.
The full text of Cabeda v. AG can be found here:
The Third Circuit has determined that it has no jurisdiction to review the Board of Immigration Appeals’ decision not to certify a late-filed appeal to itself because such a determination (absent certain exceptions not applicable in this case) is a purely discretion decision lacking sufficient benchmarks for review.
The full text of Abdulla v. Attorney General can be found here:
The Third Circuit has applied substantial evidence review to a negative reasonable fear determination. The court rejected the government’s assertion that review of a reasonable fear determination should be subject to the highly deferential “facially legitimate and bona fide” standard. The court also approvingly cited to the Attorney General’s decision in Matter of L-E-A- for the proposition that nuclear families are generally not cognizable as particular social groups.
The full text of Castillo Romero v. Attorney General can be found here:
The Second Circuit has determined that a Connecticut conviction for possession of a controlled substance with intent to sell is a crime involving moral turpitude. The court reached this conclusion while recognizing that the Connecticut statute criminalized the giving away of a small of a substance.
The full text of Mota v. Barr can be found here:
The Second Circuit has vacated a fraud-related aggravated felony finding based on a restitution order. The petitioner was convicted of one count of insurance fraud and one count of grand larceny, and the restitution order did not establish if it was calculated based on losses due to the fraud, the theft, or both. Thus, the government had not proven the $77,000 restitution order was tied to the fraud count.
The full text of Rampersaud v. Barr can be found here:
The First Circuit has rejected a claim that a Massachusetts conviction fo possession with intent to distribute is not an aggravated felony because the mens rea for accomplice liability differs under state law from federal law. The court found no realistic probability that a defendant could satisfy the state mens rea standard but not the federal mens rea standard.
The full text of Soto-Vittini v. Barr can be found here:
The First Circuit has determined that an individual who departed the United States for 98 days under an in absentia removal order broke his continuous physical presence for the purpose of Temporary Protected Status. Although an Immigration Judge rescinded the removal order, the Board of Immigration Appeals later determined that the rescission was inappropriate. The First Circuit left open the possibility that a properly reopened removal order might negate the interruption to physical presence.
The full text of Machado Siagaran v. Barr:
On July 17, 2020, a federal district court ordered the Trump Administration to begin accepting DACA applications from individuals who have never before had DACA and to begin accepting Advance Parole applications from current DACA recipients.
The full text of the order in Casa de Maryland v. DHS can be found here
https://www.courtlistener.com/recap/gov.uscourts.mdd.403497/gov.uscourts.mdd.403497.97.0.pdf
Unfortunately, today the Administration issued a new DACA memo, stating that it will reject any DACA applications from individuals who have never had DACA, and that it will only grant Advance Parole in “exceptional circumstances,” a much higher standard than was applied to Advance Parole applications filed prior to the 2017 DACA Rescission memo. In addition, DACA renewals will be limited to one year timeframes going forward.
The full text of the memo can be found here:
https://www.dhs.gov/sites/default/files/publications/20_0728_s1_daca-reconsideration-memo.pdf
The Supreme Court has reversed Ninth Circuit precedent allowing the recipient of a negative credible fear determination to challenge that decision through a habeas petition in District Court. The Court noted that the relief sought was not release from unlawful restraint, which is the traditional relief granted by a habeas petition.
“This principle dooms respondent’s Suspension Clause argument, because neither respondent nor his amici have shown that the writ of habeas corpus was understood at the time of the adoption of the Constitution to permit a petitioner to claim the right to enter or remain in a country or to obtain administrative review potentially leading to that result. The writ simply provided a means of contesting the lawfulness of restraint and securing release.”
Perhaps even more alarming is the Court’s analysis of the petitioner’s due process rights. The petitioner physically entered the United States, and was apprehended about 25 yards from the border. Despite his entry, the Court determined that he no constitutional right to due process.
The full text of DHS v. Thuraissigiam can be found here:
https://www.supremecourt.gov/opinions/19pdf/19-161_g314.pdf
The Board of Immigration Appeals has determined that a person who entered without inspection can be subject to the Migrant Protection Protocols.
The full text of Matter of M-D-C-V- can be found here:
The Attorney General has backtracked on the Board of Immigration Appeals’ attempt to carve out a “rogue official” exception to protection under the Convention Against Torture (CAT). “To the extent the Board used ‘rogue official’ as shorthand for someone not acting in an official capacity, it accurately stated the law. By definition, the actions of such officials would not form the basis for a cognizable claim under the CAT. But continued use of the ‘rogue official’ language by the immigration courts going forward risks confusion, not only because it suggests a different standard from the ‘under color of law’ standard, but also because ‘rogue official’ has been interpreted to have multiple meanings.”
“This standard does not categorically exclude corrupt, low-level officials from the CAT’s scope. Rather, regardless of rank, a public official acts under color of law when he ‘exercise[s] power possessed by virtue of law and made possible only because he is clothed with the authority of law.’ Whether any particular official’s actions ultimately satisfy this standard is a fact-intensive inquiry that depends on whether the official’s conduct is ‘fairly attributable to the State.’” The Attorney General further noted that there should be no distinction between acts of torture by high ranking or low level officials.
The Attorney General vacated the Board of Immigration Appeals’ prior published decision on the case.
The full text of Matter of O-F-A-S- can be found here:
The Board of Immigration Appeals (BIA) has determined that an Arizona conviction criminalizing conduct involving “dangerous drugs” is divisible with respect to the identity of the drug. The BIA noted that certain substances carry more severe punishment, an indication that the substances are elements of the offense. Proceeding to the modified categorical approach, the BIA determined the substance at issue was methamphetamine, and as such, the respondent was convicted of a deportable offense.
The full text of Matter of P-B-B- can be found here:
The Eleventh Circuit has determined that the “zipper clause” does not prevent a District Court from reviewing the denial of a L-1A visa petition even after removal proceedings are commenced against the applicant. The court noted that an L-1A visa petition cannot be reviewed in removal proceedings, nor is it a decision to commence removal proceedings or execute a removal order.
The full text of Canal A Media Holding, LLC v. USCIS can be found here:
http://media.ca11.uscourts.gov/opinions/pub/files/201911193.pdf
The Eleventh Circuit has determined that the application of the stop-time rule to a pre-IIRIRA conviction would be impermissibly retroactive when the conviction did not render the individual deportable at the time of the plea, and when the individual would have been eligible for 212(c) relief.
“When he pled guilty to resisting an officer with violence on July 17, 1995, he would likely have known that his guilty plea would not render him immediately deportable. And but for the later enactment of the stop-time rule, that guilty plea also would not have cut off his accumulation of continuous presence towards eligibility for waiver of deportation under INA § 212(c). Thus, by pleading guilty, Mr. Rendon gave up constitutionally protected rights with the reasonable expectation that his resulting sentence would not affect his ability to remain present in this country. Applying the stop-time rule retroactively would add a new and unforeseen consequence to his guilty plea by rendering him ineligible for cancellation of removal.”
The full text of Rendon v. Attorney General can be found here:
http://media.ca11.uscourts.gov/opinions/pub/files/201910197.pdf
An amended opinion can be found here:
http://media.ca11.uscourts.gov/opinions/pub/files/201910197.op2.pdf
The Eleventh Circuit has determined that Georgia’s drug statutes are divisible with respect to the identity of the substance. As such, the court employed the modified categorical approach to determine that the petitioner’s conviction involved ecstasy, a drug listed in the Controlled Substance Act as MDMA.
The full text of Gordon v. Attorney General can be found here:
http://media.ca11.uscourts.gov/opinions/pub/files/201814513.pdf
The Ninth Circuit has remanded a request for protection under the Convention Against Torture filed by a lesbian woman who had been targeted by Los Zetas. “Both the IJ and the BIA relied on national efforts to combat drug cartels and the corruption of public officials in order to find that ‘the government’ would not acquiesce in any torture Petitioner might suffer. Yet the record compels the conclusion that the corruption of public officials remains a problem, including specifically with regard to Los Zetas. The BIA even admitted that ‘there are corrupt officials.’”
“In addition to the extensive country conditions evidence indicating the prevalence of acquiescence by public officials in the torture committed by Los Zetas generally, Petitioner testified that she was personally beaten severely and threatened with death at gunpoint by a member of Los Zetas, while Mexican police officers looked on and did not nothing but laugh. This testimony, which the IJ found credible, establishes the acquiescence of public officials in a past instance of torture.” “As explained above, the country conditions evidence shows that corruption of government officials, especially of the police with regard to drug cartels, and specifically with regard to Los Zetas, remains a major problem in Mexico. The country conditions evidence certainly does not indicate that low level government corruption has been so rectified as to render insufficient Petitioner’s testimony regarding acquiescence by specific police officers in Petitioner’s specific circumstances.”
“In summary, the record compels the conclusion that Petitioner has established the requisite level of acquiescence by public officials to satisfy that aspect of her CAT claim. She testified to multiple instances of such acquiescence in the past involving her personal circumstances, and presented extensive country conditions evidence documenting the widespread problem of public official acquiescence in Zetas crimes generally.”
With respect to internal relocation, “neither the IJ nor the BIA expressly stated that the burden was on Petitioner to prove impossibility of relocation, [but] their analyses strongly indicate that they applied this reasoning anyway. The BIA concluded that the IJ “‘found an absence of evidence indicating that the applicant could not relocate.’ The IJ stated that ‘Mexico is a large country’ and ‘[i]t seems unlikely that there is nowhere in Mexico that the applicant could live without being harmed.’ Neither the IJ nor the BIA cited any affirmative ‘[e]vidence that [Petitioner] could relocate to a part of [Mexico] where . . . she is not likely to be tortured.’”
“Moreover, contrary to the IJ’s and BIA’s findings, extensive record evidence shows that Los Zetas operate in many parts of Mexico.” “Neither the IJ nor the BIA cited any evidence that there are states in Mexico where Los Zetas are unable to operate.” “Even if Los Zetas did not find her, Petitioner is at heightened risk throughout Mexico on account of her sexual orientation. Extensive record evidence demonstrates that LGBTQ individuals are at risk throughout Mexico. We have rejected reasoning such as the IJ employed here, that an applicant can be deemed able to safely relocate based on hiding her fundamental identity.”
The full text of Xochihua-Jaimes v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/26/18-71460.pdf
The Ninth Circuit has determined that proposed social groups of “Mexican professionals who refuse to cooperate with drug cartels” and “Mexican agronomists who refuse to help cultivate drugs” lack social distinction. “Nothing in the record addresses whether Mexican society views either of Mr. Diaz-Torres’s proposed social groups as distinct. No laws or proposed legislation so indicate. Nor do any country conditions reports or news articles mention such a group.”
“Moreover, to the extent some of Mr. Diaz-Torres’s testimony does relate to the social distinction requirement, it did not satisfy his burden of proof as to that element. After all, the social distinction requirement is concerned with how others view Mr. Diaz-Torres—not how he believes others view him. Objective evidence ‘such as country conditions reports, expert witness testimony, and press accounts of discriminatory laws and policies, historical animosities, and the like may establish that a group exists and is perceived as ‘distinct’ or ‘other’ in a particular society.’ By contrast, the testimony of the applicant alone is insufficient to establish the social distinction of a proposed group unless the petitioner ‘satisfies the trier of fact that the [petitioner’s] testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate’ that the petitioner’s proposed group is socially distinct.”
The full text of Diaz-Torres v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/29/18-70141.pdf
