Ninth Circuit Requires Neutral Determinations of Probable Cause for Non-citizens Subject to ICE Detainers

The Ninth Circuit has determined that the Fourth Amendment requires a prompt probable cause determination by a neutral and detached magistrate (such as an immigration judge) to justify detention beyond that which may be initially justified by any probable cause determination of removability of a non-citizen being held by a local law enforcement agency pursuant to an ICE detainer.

The full text of Gonzalez v. USICE can be be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/09/11/20-55175.pdf

Ninth Circuit Delves into Asylum-Only Proceedings

The Ninth Circuit has determined that a stowaway who is granted asylum in asylum-only proceedings does not lose his status as a stowaway, but merely gains the additional status of an asylee. As such, if the asylee is convicted of an aggravated felony, it is proper to reopen the asylum-only proceedings. In such circumstances, the asylee cannot apply for adjustment of status with the Immigration Judge, but can apply with U.S. Citizenship and Immigration Services.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/09/16/17-73269.pdf

Ninth Circuit Reverses Precedent on Removability in CNMI

The Ninth Circuit, sitting en banc, has reversed its decision in Minto v. Barr, finding that a non-citizen who was present in the CNMI on the date that US immigration laws became effective is not inadmissible for lack of a valid entry document because inadmissibility must be measured at the point in time that an immigrant actually submits an application for entry into the United States.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/09/24/13-70653.pdf

Third Circuit Finds that Syrian Asylum Seeker Provided Material Support to Tier III Terrorist Organization

The Third Circuit has determined that a Syrian asylum seeker who was conscripted into the Jaysh al-Sha’bi militia provided material support to a Tier III terrorist organization. The court determined that a Tier III terrorist organization can include state actors, such a state-sponsored militia.

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

https://www2.ca3.uscourts.gov/opinarch/171176p.pdf

Third Circuit Dismisses Habeas Appeal for I-212/I-601A Applicant

The Third Circuit has determined that a District Court has no authority to stay a removal order while the applicant pursues a combination of I-212 and I-601A waivers and a motion to reopen. All of these claims must be brought through a petition for review of the removal order.

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

https://www2.ca3.uscourts.gov/opinarch/191715p.pdf

Second Circuit Finds that NY Conviction for Sexual Abuse in the First-Degree is Aggravated Felony

The Second Circuit finds that a New York conviction for sexual abuse in the first-degree is a sexual abuse of a minor aggravated felony. The court noted that a conviction under this subsection requires the victim to be under the age of eleven and that the perpetrator’s “sexual contact” with the victim be “for the purpose of gratifying sexual desire.”

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

https://www.ca2.uscourts.gov/decisions/isysquery/e2e79608-b2b8-4507-8002-5c8bae39320c/14/doc/18-1070_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/e2e79608-b2b8-4507-8002-5c8bae39320c/14/hilite/

Second Circuit Finds that NY 3d Degree Possession of Stolen Property is an Aggravated Felony

The Second Circuit has determined that a New York conviction for third-degree possession of stolen property is a receipt of stolen property aggravated felony even though the statute does not require the lack of consent of the owner to obtain the property, which brings it outside the generic definition of a theft offense. The court deferred to the Board of Immigration Appeals’ definition of a possession of stolen property aggravated felony in Matter of Alday Dominguez, which provided a separate definition for a receipt of stolen property aggravated felony than a theft aggravated felony.

The petitioner also argued that the statute does not require an intent to deprive the owner of the benefits of ownership. The court disagreed, finding that an intent to deprive the owner of property is inherent in the knowing possession of stolen property under New York law.

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

https://www.ca2.uscourts.gov/decisions/isysquery/e2e79608-b2b8-4507-8002-5c8bae39320c/13/doc/18-2755_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/e2e79608-b2b8-4507-8002-5c8bae39320c/13/hilite/

First Circuit Affirms Denial of Continuance

The First Circuit has determined that IJ properly denied a motion for a continuance for I-130 adjudication because the allegations in a police report related to pending assault charges were so egregious that the judge would deny the adjustment as a matter of discretion. The court further affirmed the Board of Immigration Appeals’ decision denying a motion to remand when the I-130 was approved and the criminal charges dismissed, relying on the reasonableness of the IJ’s discretionary determination.

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

http://media.ca1.uscourts.gov/pdf.opinions/19-1516P-01A.pdf

Ninth Circuit Finds that CA ADW Conviction is CIMT

The Ninth Circuit has determined that a conviction for assault with a deadly weapon or assault with force likely to produce great bodily injury is a crime involving moral turpitude. In so doing, the court has deferred to the Board of Immigration Appeals’ decision in Matter of Wu.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/09/17/16-74039.pdf

Attorney General Turns the Categorical Approach on its Head

The Attorney General - in a decision that I sincerely hope will not withstand the scrutiny of any federal judge reviewing it - has determined that a statute of conviction does not need to categorically match the definition of any single type of aggravated felony, so long as all of the conduct criminalized matches the generic definition of one of the subsets of aggravated felonies.

“Because New York law defines larceny to include both a taking of property without consent and one where consent was fraudulently obtained, the respondent argued that the statute of conviction is not a categorical match to either aggravated-felony theft or aggravated-felony fraud. Even if the New York offense must constitute either theft or fraud, she contended, the immigration judge could not determine using the categorical approach the one particular aggravated felony that she had committed. Therefore, she argued, her larceny conviction could not support her removal.”

The Attorney General disagreed. “None of the cases holds that a court is required to compare the alien’s underlying crime to one, and only one, generic offense at a time.”

Finally, the Attorney General found that he permissibly apply this new analysis retroactively,

The full text of Matter of Reyes can be found here:

https://www.justice.gov/eoir/page/file/1299811/download

BIA Finds that Lack of Diligence Undermines No-Notice Claim

The Board of Immigration Appeals has determined that rescission of an in absentia order is not warranted when a non-citizen was personally served with the Notice to Appear, failed to correct a typo in the address provided to the Immigration Court, and who waited 18 years to file his motion to reopen. “Even assuming that the respondent inadvertently provided the incorrect spelling of the city name, he was on notice that he had a duty to correct his address information and to properly notify the Immigration Court where he could receive notice. Inherent in the concept of notice is the implicit obligation that the intended recipient must provide the information necessary for the notice to be received.” “Since the respondent was clearly advised that he was required to provide a correct address to the Immigration Court and failed to do so, we conclude that he received constructive notice of his scheduled hearing, even if he did not receive actual notice of it.”

The full text of Matter of Nivelo Cardenas can be found here:

https://www.justice.gov/eoir/page/file/1301361/download

Eleventh Circuit Limits Jurisdiction to Review Denial of Adjustment Application

The Eleventh Circuit has determined that it lacks jurisdiction to review the denial of an adjustment of status application unless the appeal involves legal or constitutional questions. As such, the court determined it was precluded from reviewing the factual determination that the petitioner lacked the requisite subjective intent to make a false claim to U.S. citizenship.

The en banc decision in Patel v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201710636.enb.pdf

Tenth Circuit Rejects Challenge to Hardship Determination

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:

https://www.ca10.uscourts.gov/opinions/19/19-9585.pdf

Tenth Circuit finds that CO Drug Statute is Indivisible

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:

https://www.ca10.uscourts.gov/opinions/19/19-9550.pdf

Ninth Circuit Construes Exception for Falling out of Status through no Fault of the Applicant

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

Ninth Circuit Concludes that CA Stalking Conviction is a CIMT

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

Ninth Circuit Finds that CA Accessory after the Fact to a Felony is not Agg Fel

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

Ninth Circuit Construes Matter of A-B-

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

Ninth Circuit finds that DV Victim Demonstrated Government Unwillingness to Protect and Government Acquiescence

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

Ninth Circuit Finds that CA Conviction for Attempting to Communicate with a Child with Intent to Commit Lewd or Lascivious Acts Upon the Child is Overbroad and Divisible as a CIMT

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