Ninth Circuit Reverses Agency Rejection of Expert Witness

The Ninth Circuit has reversed the agency’s rejection of expert witness testimony in a Convention Against Torture case. “If the Board rejects expert testimony, it must state ‘in the record why the testimony was insufficient to establish the probability of torture.’ Improperly rejected expert testimony is a legal error and, thus, per se reversible.” The court also rejected the agency’s assertion that the expert witness’ testimony should be accorded less weight because it was not corroborated by other documents in the record. “If an expert’s opinion could only be relied upon if it were redundant with other evidence in the record, there would be no need for experts.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/11/18/19-72745.pdf

Ninth Circuit Affirms No Prejudice Requirement for IAC MTR Where In Absentia Issued

The Ninth Circuit has affirmed that a petitioner seeking reopening based on ineffective assistance of counsel need not establish prejudice when the ineffective assistance resulted in the entry of an in absentia removal order.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/11/18/18-70666.pdf

Ninth Circuit Issues Amended Decision on Collateral Attacks on Reinstated Removal Orders

The Ninth Circuit has issued an amended opinion in Vega-Anguiano v. Barr. The decision prohibits the reinstatement of a removal order that was no longer lawful at the time of its execution. In the instant case, the petitioner was convicted in 1991 of possession of a controlled substance. He was ordered removed in 1998, but he received an expungement in 1999, which eliminated the conviction under the Federal First Offenders Act. He was physically deported in 2008. He returned, and ICE sought to reinstate the 1998 order. The Ninth Circuit found that because the removal order was no longer lawful in 2008 when it was executed, the petitioner suffered a gross miscarriage of justice, prohibiting the reinstatement of the order.

“Collateral attack is largely reserved for cases in which the removal order could not have withstood judicial scrutiny under the law in effect at the time of either its issuance or its execution.” “Vega-Anguiano [] had his conviction expunged prior to—indeed, many years prior to—the execution of his removal order in 2008. As we noted above, and as the government has conceded, the expungement eliminated the legal basis for his removal order because Vega-Anguiano met the requirements of the Federal First Offender Act. Thus, by the time of Vega-Anguiano’s removal in 2008, his removal order lacked a valid legal basis.” In addition, the Court determined that “there is no diligence requirement that limits the time during which a collateral attack on that deportation or removal order may be made based on a showing of gross miscarriage of justice.”

The amended opinion can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/11/24/15-72999.pdf

Eighth Circuits Finds that TPS Holders are Admitted and Inspected for Adjustment Purposes

The Eighth Circuit has determined that Temporary Protected Status holders are admitted and inspected for the purpose of adjustment of status. “Section 1254a(f)(4) mandates that TPS beneficiaries ‘shall be considered as being in, and maintaining, lawful status as a nonimmigrant’ for purposes of § 1255. 8 U.S.C. § 1254a(f)(4). And an individual cannot gain nonimmigrant status without being considered inspected and admitted. That is, by the express provisions of the INA, (1) every person with lawful status as a nonimmigrant has been ‘admitted’ into the United States, and (2) all nonimmigrants are ‘inspected’ before admission.”

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

https://ecf.ca8.uscourts.gov/opndir/20/10/191148P.pdf

Eighth Circuit Finds that CA Criminal Threats Conviction is Crime of Violence

The Eighth Circuit has determined that a California conviction for criminal threats is a crime of violence for federal sentencing purposes because it “necessarily include[s] a threatened use of physical force ‘capable of causing physical pain or injury to another person.’”

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

https://ecf.ca8.uscourts.gov/opndir/20/11/193222P.pdf

Sixth Circuit Upholds Matter of Castro Tum

The Sixth Circuit has upheld the decision in Matter of Castro Tum, and determined that Immigration Judges and the Board of Immigration Appeals do not have a general authority to administratively close proceedings. The opinion, which creates a circuit split with the Fourth and Seventh Circuits, drew a strong dissent. It also included a wild footnote in the majority opinion about proper jurisdiction over an adjustment of status application filed by an applicant with a final removal order. It seems to suggest that jurisdiction over that application would reside with U.S. Citizenship and Immigration Services. Needless to say, this is inconsistent with how the immigration system actually works.

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

https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0367p-06.pdf

Fourth Circuit Addresses Corroborating Evidence Requirements

The Fourth Circuit has deferred to the Board of Immigration Appeals’ determination that the INA does not require an IJ to give a non-citizen seeking relief from removal advance notice of specific corroborating evidence necessary to establish his claim or grant an automatic continuance to allow him to obtain such evidence. However, the Court affirmed that statute requires the agency to determine whether the corroborating evidence was reasonably available.

The full text of Wambura v. Barr can be found here:
https://www.ca4.uscourts.gov/Opinions/191360.P.pdf

Fourth Circuit Finds that DV-Based PSG Violates Anti-Circularity Principle

The Fourth Circuit has determined that the proposed social group of ““married El Salvadoran women in a controlling and abusive domestic relationship” violates the anti-circularity principle in that the group is defined by reference the harm suffered.”

The full text of Amaya De-Sicaran v. Barr can be found here:

https://www.ca4.uscourts.gov/Opinions/181915.P.pdf

Fourth Circuit Reaffirms that Death Threats Constitute Persecution

The Fourth Circuit has reaffirmed that written death threats qualify as persecution. “Indeed, written home-delivered death threats and text messages can easily be more menacing than verbal threats, in that they show that the writer and sender knows where his target lives and the relevant personal cellphone number.”

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

https://www.ca4.uscourts.gov/opinions/191930.P.pdf

Third Circuit Finds that Decriminalization Vacatur is not Cognizable for Immigration Purposes

The Third Circuit has determined that a conviction vacated because the state was decriminalized the underlying conduct does not meet the Pickering standard and is not recognized for immigration purposes.

The full text of Khan v. Attorney General can be found here: https://www2.ca3.uscourts.gov/opinarch/191427p.pdf

BIA Finds that Pre-Cancellation Conviction Cannot be Used as Sole Basis for Post-Cancellation Removability Charge

The Board of Immigration Appeals has determined that if a criminal conviction was charged as a ground of removability or was known to the Immigration Judge at the time cancellation of removal was granted to a lawful permanent resident, that conviction cannot serve as the sole factual predicate for a charge of removability in subsequent removal proceedings.

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

https://www.justice.gov/eoir/page/file/1326066/download

Eleventh Circuit Rejects De Minimis Exception to Material Support Bar

The Eleventh Circuit has rejected the argument that the provision of “de minimis” funds to a terrorist organization does not constitute material support. In so doing, they upheld that agency’s denial of adjustment of status to an individual who gave $100 to Fuerzas Armadas Revolucionarias de Colombia.

The full text of Hincapie-Zapata v. Attorney General can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/201810229.pdf

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