Ninth Circuit Issues Terrible Decision on DV Asylum

The Ninth Circuit has issued a terrible asylum decision for a Guatemalan asylum seeker who was the victim of domestic violence. The court found sufficient evidence in the record to support the agency’s finding that the Guatemalan government is able to protect the petitioner from harm.

“The State Department reports show that Guatemala is working to curb violence against women. For example, Guatemalan law criminalizes rape and domestic abuse, and officials investigate and prosecute cases under those laws. Granted, the conviction rates are exceptionally low, and officers often face a lack of resources and training, but we do not limit our analysis to whether the government can ‘control the attackers’; we also look to whether it can ‘protect the attacked.’ On this point the reports convey that justices of the peace issued restraining orders and ordered police protection for abuse victims in an unspecified number of cases. In addition, Guatemala has established programs, offices, and shelters for female victims of physical and sexual assault. One such shelter operates in Quetzaltenango, where Velasquez-Gaspar lived. Thus, although the State Department reports make clear that Guatemala still has a long way to go in addressing domestic violence, the country’s efforts, coupled with the pleas of Velasquez-Gaspar’s acquaintances, suggest that she could have obtained help.2 As a result, we cannot say that the record compels a finding contrary to the agency’s.”

Notably, the decision drew a very strong dissent from Judge Paez.

The full text of Velasquez-Gaspar v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/09/30/17-71964.pdf

Ninth Circuit Permits Consideration of CBP Interview and CFI Notes in Credibility Determination

The Ninth Circuit has has determined that it was permissible for an Immigration Judge to rely on inconsistencies between an asylum applicant’s in-court testimony and the information contained in a record of his border interview with Customs and Border Protection and of his credible fear interview with an asylum officer. The court determined that “there were sufficient indicia of reliability” because “the interviews were conducted under oath, with contemporaneous notes containing the questions asked, and transcribed either by a French-speaking officer or with the aid of an interpreter. “

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/10/13/19-72499.pdf

Ninth Circuit Determines that Oregon Conviction for Delivery of Marijuana is not Aggravated Felony

The Ninth Circuit has determined that an Oregon conviction for delivery of marijuana is not an “illicit trafficking” aggravated felony because “solicitation to commit a trafficking offense does not fall under the definition of ‘illicit trafficking.’”

The full text of Cortes-Maldonado v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/10/15/18-70927.pdf

Ninth Circuit Defers to BIA that Animal Conviction is a CIMT

The Ninth Circuit has deferred to the Board of Immigration Appeals’ (BIA) decision in Matter of Ortega-Lopez that a federal conviction for aiding and abetting another person who sponsored or exhibited an animal in an animal fighting venture is a crime involving moral turpitude. The court also deferred to the BIA’s conclusion that, pursuant to the cross-reference in § 1229b(b)(1)(C), an alien is ineligible for cancellation of removal if the alien has been convicted of a crime involving moral turpitude for which a sentence of one year or more may be imposed, regardless whether the alien meets the immigration prerequisites for inadmissibility or deportability.

The full text of Ortega-Lopez v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/10/20/18-72441.pdf

Seventh Circuit Finds IJ Should have Advised Counseled Respondent about Asylum

The Seventh Circuit has determined that an Immigration Judge has the obligation to advise a counseled respondent of the ability to apply for asylum and withholding of removal pursuant to 8 C.F.R. § 1240.11(c)(1) if the respondent testifies about a fear of harm f the type that could render him eligible for asylum or withholding of removal.

The full text of Jimenez-Aguilar v. Barr can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D10-06/C:19-1917:J:PerCuriam:aut:T:fnOp:N:2591635:S:0

Fourth Circuit Reaffirms Viability of Family-Based PSG Claims

The Fourth Circuit has affirmed the validity of an asylum claim brought by a woman who was threatened by the gangs in order to get her parents to pay extortion money. The woman was raped and her younger brother was assaulted with a knife. “Petitioner clearly demonstrated that her family was being targeted for extortive threats and she was targeted because her parents were failing to comply with those threats.”

“Contrary to the BIA’s conclusion in this case, the record does not support the conclusion that Petitioner’s own conflict with the gang precipitated any of the events in question. Indeed, substantial evidence in the record compels the conclusion that at least one central reason Petitioner was targeted was her membership in the Hernandez-Cartagena family. The unrebutted evidence in the record demonstrates that the threats and violence against Petitioner, her child, and her siblings were designed to get her parents to pay up. Pursuant to Hernandez-Avalos, it is therefore unreasonable to conclude that the fact that Petitioner is her parents’ child -- a member of their family, concern for whom might motivate additional payments to the gang -- is not at least one central reason for her persecution.”

The full text of Hernandez-Cartagena v. Barr can be found here:

https://www.ca4.uscourts.gov/opinions/191823.P.pdf

Fourth Circuit Finds that Attempted Hobbs Act Robbery is not COV

The Fourth Circuit has determined that a conviction for attempted robbery under the Hobbs Act is not categorically a crime of violence under the federal sentencing law. “The Government may obtain a conviction for attempted Hobbs Act robbery by proving that: (1) the defendant specifically intended to commit robbery by means of a threat to use physical force; and (2) the defendant took a substantial step corroborating that intent. The substantial step need not be violent.”

The full text of US v. Taylor can be found here:

https://www.ca4.uscourts.gov/opinions/197616.P.pdf

Third Circuit Determines that New Jersey Terroristic Threats Conviction is not CIMT

The Third Circuit has determined that a New Jersey terroristic threats conviction is not a crime involving moral turpitude. The court first determined that the statute is overbroad and divisible. The court then determined that the the basis for the petitioner’s conviction is “threaten[ing] to commit any crime of violence 13 with the purpose to terrorize another . . . or in reckless disregard of the risk of causing such terror.”

“New Jersey’s terroristic-threats statute criminalizes threats that merely carry the risk of ‘convey[ing] menace or fear of a crime of violence’ to another person, and whereas those statutes required a mental state exhibiting ‘extreme’ and ‘depraved’ indifference to a person’s life, New Jersey defines recklessness to include ‘heedless[ness],’ ‘foolhardi[ness],’ or ‘scorn for the consequences’ of causing fear in another. New Jersey’s terroristic-threats statute, therefore, lacks the type of aggravating factors that we have previously recognized would make an offense inherently vile and depraved.”

“In sum, Larios’s crime of conviction has a minimum mens rea of recklessness but lacks any statutory aggravating factors, so the least culpable conduct is a reckless threat to commit a violent property crime, which . . . is not turpitudinous.”

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

https://www2.ca3.uscourts.gov/opinarch/192594p.pdf

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