These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries in
New Case Law
The Tenth Circuit has rejected an attempt to establish jurisdiction over the denial of a cancellation of removal application based on insufficient hardship. The court acknowledged the Supreme Court’s recent decision in Guerrero-Lasprilla but found that it still did not permit the court to reweigh the hardship evidence.
The full text of Galeano-Romero v. Barr can be found here:
The Tenth Circuit has determined that a Colorado statute criminalizing possession of a controlled substance is more overbroad and indivisible with respect to the identity of the controlled substance. Instead, the court found that the different schedules of drugs are elements, but the individual substances listed on any given schedule are merely alternative means.
The full text of Johnson v. Barr can be found here:
The Ninth Circuit has determined that an adjustment applicant who falls out of status prior to filing for adjustment of status, and whose timely filed application for extension of his nonimmigrant status is ultimately denied, has not fallen out of status due to “no fault of his own.” Rather, that exception can only be invoked if the timely-filed application for extension of status is ultimately granted.
The full text of Attias v. Crandall can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/07/30/18-56629.pdf
The Ninth Circuit has concluded that a California conviction for stalking is categorically a crime involving moral turpitude. The court noted that the statute requires a willful course of conduct that puts a person in reasonable fear for their safety. It also requires the defendant to have made a credible threat of harm. The court also concluded that the petitioner’s two stalking convictions, which related to conduct on different dates, did not arise of a single criminal scheme.
The full text of Orellana v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/07/28/19-70164.pdf
The Ninth Circuit has determined that a California conviction for accessory after the fact to a felony is not categorically an aggravated felony related to obstruction of justice because it encompasses conducted related to crimes which are not the subject of an ongoing investigation or proceeding.
The full text of Valenzuela Gallardo v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/06/18-72593.pdf
The Ninth Circuit has determined that Matter of A-B-, which purported to exclude domestic violence and gang-based claims from asylum, did not actually create a categorical bar to such claims. Instead, these claims, like all asylum claims, but be evaluated on a case-by-case basis.
The court further observed that A-B- “merely reiterated the well-established principle that a particular social group must exist independently of the harm asserted, and that the BIA must consider whether a petitioner’s social group is cognizable if it is defined without reference to the fact of persecution.” “If a group is otherwise cognizable, Matter of A-B- does not demand that it be devoid of any reference to an applicant’s claimed persecution. To the contrary, Matter of A-B- reiterated the longstanding rule that persecution may be relevant to a group’s social distinction.” “The idea that the inclusion of persecution is a sort of poison pill that dooms any group does not withstand scrutiny. “ “BIA precedent confirms that a group that exists independent of persecution is simply a group that shares an immutable characteristic other than the persecution it suffers—i.e., a group that shares a ‘narrowing characteristic.’”
“The BIA ruled that Diaz-Reynoso’s proposed social group was not cognizable because it assumed her inability to leave her relationship was attributable to domestic violence, and because it understood Matter of A-B- to say that the mention of domestic violence disqualifies a particular social group.” “There are at least two problems with the BIA’s reasoning in Diaz-Reynoso’s appeal. First, as explained, the BIA misunderstood Matter of A-B-’s holding. Second, it is not clear that the reason Diaz-Reynoso was ‘unable to leave’ her relationship was limited to domestic violence. Rather, the BIA assumed that domestic violence was the only reason Diaz-Reynoso was unable to leave her relationship.” “The persecution Diaz-Reynoso fears is undoubtedly the abuse perpetrated by her husband, but before the immigration judge, she advanced evidence of economic, societal, and cultural factors that also may have prevented her from leaving her relationship. These included her financial dependence on her husband, limited education, rural location, and an ingrained Mayan cultural view that a relationship does not end until the man so agrees.”
The full text of Diaz-Reynoso v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/07/18-72833.pdf
The Ninth Circuit has determined that a woman seeking asylum based on domestic violence demonstrated a government unwillingness to protect her and government acquiescence to torture of her when the police accepted a bribe from her abuser and left without speaking to or assisting her. The court did not reach the issue of whether the petitioner had established a cognizable particular social group.
The full text of Davila v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/07/17-72173.pdf
The Ninth Circuit has determined that a California conviction for attempting to communicate with a child with intent to commit a lewd and lascivious upon the child is not categorically a crime involving moral turpitude because it includes the intent to commit certain enumerated offenses that are not morally turpitudinous (such as kidnapping). However, the court determined that the statute is divisible among the 15 enumerated offenses. The court then consulted the charging document, with charged the petitioner with intent to commit a violation of section 288 of the Penal Code. The document did not specify a subsection of section 288, and the Ninth Circuit has previously held that a violation of section 288(c)(1) is not a crime involving moral turpitude because it lacked a good-faith reasonable mistake of age defense. However, that concern is negated because section 288.3 of the Penal Code (the attempting to communicate statute) requires the person to know or reasonably know that the victim is a minor. Hence, that statute provides the good-faith reasonable mistake of age defense missing in section 288(c)(1) itself.
The full text of Syed v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/12/17-71727.pdf
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
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
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
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
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
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
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
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:
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:
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:
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
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
