Ninth Circuit Finds that CA Murder is Overbroad and Divisible as an Aggravated Felony

The Ninth Circuit has determined that the California murder statute is overbroad when compared to the generic definition of murder because it includes murder of a fetus. However, the court determined that the statute is divisible between murder of a fetus and murder of a person, and therefore concluded under the modified categorical approach that the petitioner was convicted of an aggravated felony.

The full text of Gomez-Fernandez v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/13/19-70079.pdf

Ninth Circuit Finds Approval of VAWA I-360 is not an Admission

The Ninth Circuit has determined that the beneficiary of an approved VAWA self-petition is not admitted for the purposes of cancellation of removal for lawful permanent residents.

The full text of Enriquez v. Barr can be found:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/13/13-72934.pdf

Ninth Circuits Finds Asylum Seeker in Hiding Could not Reasonably Relocate

The Ninth Circuit has determined that an asylum seeker who must remain in hiding to avoid harm cannot reasonably relocate in her country of origin. Though recognizing the regulations governing protection under the Convention Against Torture (unlike those related to asylum and withholding of removal) do not explicitly require internal relocation to be “reasonable,” the court assumed that the analysis would remain the same. The court also rejected the agency’s analysis of the social distinction of the petitioner’s proposed social group consisting of “women resistant to forced marriage proposals,” finding that the requisite distinction was established by the petitioner’s testimony that she was ostracized for refusing a local ruler’s marriage proposal, and that the local ruler has to authority to enforce traditional law in other parts of the country, allowing him in the past to hunt down women who refused his marriage proposals. Finally, the court recognized that inherent in the concept of forced marriage is forced rape, which would qualify as a form of torture.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/14/17-72829.pdf

Ninth Circuit Construes Prior Derivative Citizenship

The Ninth Circuit has determined that former 8 USC 1432(a)(5) requires a child to have obtained lawful permanent residence in the United States prior to age 18 in order to derive citizenship. The concurrence, though recognizing that prior Ninth Circuit precedent mandates this outcome, noted a differing interpretation from the Second Circuit, and concluded that the Ninth Circuit’s interpretation is on “the wrong side of the circuit split.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/19/15-70636.pdf

Ninth Circuit Holds that Asylum Applicant Need not Attach New I-589 with MTR

The Ninth Circuit has determined that a litigant seeking reopen a previously-filed asylum claim can append a copy the previously-filed application with the motion to reopen, and need not attach a new application. In so holding, the court noted that the petitioner was not asserting a new asylum claim, but rather, seeking to pursue the same claim contained in the previously-filed application.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/24/19-72701.pdf

Ninth Circuit Holds that CA Perjury Conviction is an Aggravated Felony

The Ninth Circuit has concluded that a California conviction for perjury is categorically an aggravated felony. In so doing, the court deferred to the Board of Immigration Appeals’ definition of a perjury-related aggravated felony in Matter of Alvarado.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/25/17-70624.pdf

Ninth Circuit finds that CA Meth is, in fact, Meth

Quirky titles aside, anyone practicing in the Ninth Circuit has been following the saga of Lorenzo v. Barr and its progeny and trying to determine if California’s definition of methamphetamine is broader than the federal definition. The Ninth Circuit seems to have finally laid the issue to rest, concluding that geometric isomers of methamphetamine do not exist as a matter of chemistry, and as such, there is no realistic probability that California prosecutes crimes involving a broader chemical definition of methamphetamine. RIP, Lorenzo - I’ll miss being able to quip that “meth isn’t really meth.”

The full text of United States v. Rodriguez-Gamboa can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/27/19-50014.pdf

Eighth Circuit Finds that Iowa Conviction for Going Armed with Intent is not a Violent Felony

The Eighth Circuit has determined that an Iowa conviction going armed with intent is not a violent felony under the Armed Career Criminal Act (ACCA). The court noted that under the statute, “the movement and the intent are discrete elements, with no requirement that the movement be in furtherance of, or even in the direction of, commission of the crime.” Given the similarity between the definition of a violent felony under the ACCA and the definition of a crime of violence in immigration proceedings, this case is persuasive authority for immigration purposes.

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

https://ecf.ca8.uscourts.gov/opndir/20/08/193130P.pdf

Eighth Circuit Finds that Federal Convictions for Kidnapping Resulting in Death and Carjacking Resulting in Death are Crimes of Violence

The Eighth Circuit finds that federal convictions for kidnapping resulting in death and carjacking resulting in death are crimes of violence under the federal sentencing guidelines.

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

https://ecf.ca8.uscourts.gov/opndir/20/08/182800P.pdf

Seventh Circuit Sustains Appeal of Untimely, Number-Barred Sua Sponte Motion to Reopen

The Seventh Circuit has sustained the appeal of the denial of an untimely, number-barred sua sponte motion to reopen. In so doing, the court noted that the Board of Immigration Appeals misinterpreted the petitioner’s motion to reopen to be solely for the purpose of adjustment of status, when in fact, he had also challenged whether he was removable as charged.

The full text of Salazar-Marroquin v. Barr can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D08-13/C:19-1669:J:Hamilton:aut:T:fnOp:N:2563438:S:0

Fifth Circuit finds that TX Conviction for Sexual Assault of a Child is a Crime of Child Abuse

The Fifth Circuit has determined that a Texas conviction for sexual assault of a child is a crime of child abuse. In so doing, the court deferred to the Board of Immigrations’ (Board) interpretation of this ground of deportability, articulated in its decisions in Matter of Velazquez-Herrera and Matter of Soram. The court noted that the statute at issue requires intentionally or knowingly engaging in acts involving direct sexual contact with a child, which falls squarely within the Board’s definition.

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

http://www.ca5.uscourts.gov/opinions/pub/19/19-60097-CV0.pdf

Fifth Circuit Defines Persecution as Requiring Sustained and Repeated Harm

The Fifth Circuit has determined that persecution requires sustained, repeated harm. As such, it deferred to the agency’s determination that a petitioner who was threatened on three occasions, and physically harmed on one occasion, did not suffer harm rising to the level of persecution.

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

http://www.ca5.uscourts.gov/opinions/pub/18/18-60827-CV0.pdf

Fourth Circuit Applies Barton Decision on Stop-Time Rule

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:

https://www.ca4.uscourts.gov/opinions/182514.P.pdf

Third Circuit Sustains Appeal of Discretionary Denial of Asylum

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:

https://www2.ca3.uscourts.gov/opinarch/182925p.pdf

Third Circuit Prohibits Retroactive Application of Matter of Diaz Lizarraga

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:

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

Third Circuit Finds that PA Conviction for Involuntary Deviate Sexual Intercourse with a Minor is not Aggravated Felony

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:

https://www2.ca3.uscourts.gov/opinarch/191835p.pdf

Third Circuit Finds No Jurisdiction to Review BIA's Refusal to Certify Late-Filed Appeal

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:

https://www2.ca3.uscourts.gov/opinarch/191167p.pdf

Third Circuit Applies Substantial Evidence Review to Reasonable Fear Determination

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:

https://www2.ca3.uscourts.gov/opinarch/193550p.pdf

Second Circuit Finds that CT Conviction for Possession of Controlled Substance with Intent to Sell is CIMT

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:

https://www.ca2.uscourts.gov/decisions/isysquery/439ddf3d-3b3c-4999-bfcc-e7cacdc4ec27/13/doc/19-1385_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/439ddf3d-3b3c-4999-bfcc-e7cacdc4ec27/13/hilite/

Second Circuit Vacates Fraud Aggravated Felony Finding Predicated on Restitution Order

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:

https://www.ca2.uscourts.gov/decisions/isysquery/439ddf3d-3b3c-4999-bfcc-e7cacdc4ec27/7/doc/19-825_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/439ddf3d-3b3c-4999-bfcc-e7cacdc4ec27/7/hilite/