District Court Finds Matter of H-G-G- violates APA

A district court in Minnesota has rejected the AAO’s decision in Matter of H-G-G-, which held that a grant of Temporary Protected Status (TPS) is not an admission for adjustment of status purposes. The court further held that for the purpose of the continuous maintenance of status requirements in section 245(c) of the INA, the grant of TPS constitutes a new entry, and maintenance of status should be measured starting on the date of the grant of TPS.

The case is called Hernandez de Gutierrez & Gutierrez v. Barr and can be found on PACER by looking up Case # 0:19-cv-02495-JRT-KMM in the District of Minnesota.

USCIS Cuts Off AOS Eligibility for TPS Holders

The Administrative Appeals Office has adopted a decision that finds that a Temporary Protected Status (TPS) recipient who is granted authorization to temporarily travel abroad pursuant to section 244(f)(3) of the Act (TPS travel authorization) and who subsequently reenters the United States using a Department of Homeland Security (DHS) travel document, resumes the same immigration status the alien had at the time of departure. “Consequently, if a TPS recipient was present in the United States without inspection, admission or parole at the time of departure pursuant to TPS travel authorization, that alien upon return to the United States is returned to ‘same immigration status the alien had at the time of departure’ such that the TPS authorized travel will not satisfy the ‘inspected and admitted or paroled’ provision at section 245(a) of the Immigration and Nationality Act.” The decision will only apply prospectively to TPS holders who depart the US using a parole document on or after August 20, 2020.

The full text of Matter of Z-R-Z-C- can be found here:

https://www.uscis.gov/sites/default/files/document/aao-decisions/Matter-of-Z-R-Z-C-Adopted-AAO-Decision.pdf

BIA Weighs in on Filing Deadlines and Video Teleconferencing

The Board of immigration Appeals has deemed it permissible for an Immigration Judge to set a filing deadline for an asylum application prior to the next hearing, and then deem the application abandoned if it is not filed on time. The Board also determined that video teleconferencing hearings do not violate a non-citizen’s due process rights.

The full text of Matter of R-C-R- can be found here:

https://www.justice.gov/eoir/page/file/1311336/download

Attorney General Precludes Stipulations to Elements of Asylum

The Attorney General has directed the Board of Immigration Appeals to review de novo if the Immigration Judge’s factual findings establish all of the elements of an asylum claim, and to not accept the parties’ stipulation that certain elements of the claim have been established.

The full text of Matter of A-C-A-A- can be found here:

https://www.justice.gov/eoir/page/file/1319866/download

BIA Clarifies Standards for Expert Witnesses

The Board of Immigration Appeals has determined that “a key purpose of qualifying a witness as an expert is to provide a framework for the Immigration Judge to evaluate the evidence. In assessing whether to admit the testimony of a witness as an expert, an Immigration Judge should consider whether it is sufficiently relevant and reliable for the expert to offer an informed opinion.” “To be reliable, an expert’s testimony must be ‘based on sufficient facts or data’ that the expert ‘has been made aware of or personally observed’ or from sources that ‘experts in the particular field would reasonably rely on.’” “In considering how much weight to give an expert’s testimony, the Immigration Judge should assess how probative and persuasive the testimony is regarding key issues in dispute for which the testimony is being offered. However, to the extent that the record contains contradictory evidence, the Immigration Judge should explain why inferences made by the expert are reasonable and more persuasive than the other evidence presented.”

The full text of Matter of J-G-T- can be found here:

https://www.justice.gov/eoir/page/file/1319951/download

Ninth Circuit Construes Domestic Violence Waiver

The Ninth Circuit has determined that the domestic violence waiver - which applies to applicants for VAWA cancellation of removal - only waives domestic violence and stalking convictions related to the abuse. As such, the petitioner, who had been convicted of a drug possession offense, remained ineligible for VAWA cancellation of removal.

The full text of Jaime-Cardenas v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/09/01/19-71849.pdf

Ninth Circuit Finds Salvadoran Government Unable or Unwilling to Protect Witness against Gang Members

The Ninth Circuit has determined that the Salvadoran government is unable or willing to protect a man who testified against gang members who shot him and killed his son. “Some official responsiveness to complaints of violence, although relevant, does not automatically equate to governmental ability and willingness.” “The record before the IJ and BIA compels the conclusion that, despite initial responsiveness to JR’s complaints, the police were unable, and then unwilling, to protect JR and his family from the Mara-18 gang. After a gang member cut off two of his fingers, JR reported the crime, and the member was briefly imprisoned. However, after that incident, gang members shot JR seven times. JR survived, but lost one of his lungs. A few months later, the gang murdered JR’s son at home. After reporting the murder and agreeing to cooperate with prosecutors, JR received a death threat from the local ‘boss’ of the gang. Although the government provided protection before JR gave his testimony, it withdrew that protection after he testified.” “Even if the government could protect JR and his family, it is undisputed that, after JR finished testifying, it no longer would do so.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/09/11/18-72812.pdf

Ninth Circuit Vacates TPS Injunctions

The Ninth Circuit has vacated the injunctions preventing the government from implementing the planned termination of Temporary Protected Status (TPS) for citizens of multiple countries. The court found that the decision to terminate TPS is non-reviewable by judicial authorities, absent constitutional concerns. The court further found that the district court abused its discretion in concluding that Plaintiffs presented at least serious questions on the merits of their Equal Protection claim, which was premised on the assertion that the decision to terminate TPS was motivated by racial animus.

The full decision of Ramos v. Wolf can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/09/14/18-16981.pdf

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