Sixth Circuit Finds that Exceptional Circumstances Prevented Minor from Attending Court

The Sixth Circuit has determined that exceptional circumstances prevented a 12-year-old minor whose mother had given birth 10 days before her hearing from attending her removal hearing. “E.A.’s case involves numerous impediments that prevented her from attending her immigration hearing, including her inability to change the location of the hearing, her inability to secure transportation from New York to Memphis, and her mother’s recent childbirth.” “In sum, we conclude that the BIA abused its discretion by denying E.A.’s motion to reopen. E.A.’s mother’s recent childbirth is a serious medical event, which coupled with E.A.’s minor age, her difficulty obtaining transportation, and her difficulty navigating the immigration system without assistance, constitute “exceptional circumstances” necessitating rescission of the in absentia removal order.” The court also noted that the E.A. was not required to show prima facie eligibility for relief in order to have her in absentia removal order rescinded.

The full text of EACA v. Rosen can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0011p-06.pdf

Sixth Circuit Finds Jurisdiction to Review Hardship Determination

The Sixth Circuit has determined that whether an immigrant has established exceptional and extremely unusual hardship for cancellation of removal is a mixed question of law and fact, and the court maintains jurisdiction to review a hardship determination based on undisputed facts.

The full text of Singh v. Rosen can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0005p-06.pdf

Fifth Circuit Finds that TPS is not an Admission

The Fifth Circuit has concluded that Temporary Protected Status (TPS) is not an admission for adjustment of status purposes. However, the Court noted that a TPS holder could obtain advance parole, travel abroad, and return to the United States. Their return would meet the requirement of being inspected and paroled for adjustment of status.

The full text of Solorzano v. Mayorkas can be found here:

https://www.ca5.uscourts.gov/opinions/pub/19/19-50220-CV0.pdf

Fifth Circuit Concludes that Use of an Unauthorized Social Security Number is a CIMT

The Fifth Circuit has concluded that a conviction for unauthorized use of a social security number is a crime involving moral turpitude. The Court noted that “[a] § 408(a)(7)(B) offense necessarily involves intentional deception: a person commits the offense if, ‘with intent to deceive’, she ‘falsely represents a number to be the social security account number . . assigned . . . to [her] or to another person’ when that number has not been assigned to her or such other person.” The Court then concluded that “deceptive intent is sufficient for an offense to constitute a CIMT.”

The full text of Munoz-Rivera v. Wilkinson can be found here:

https://www.ca5.uscourts.gov/opinions/pub/19/19-60376-CV0.pdf

Fourth Circuit Reaffirms Family as a Particular Social Group

The Fourth Circuit has published another case affirming that family ties can form a particular social group for asylum and withholding of removal purposes.

“The record before us conclusively establishes a nexus between the death threats made against Diaz de Gomez and her ties to her nuclear family. Three facts are particularly probative of this nexus. Most notably, the threats to Diaz de Gomez’s family members first began when multiple members of that family, including Diaz de Gomez, witnessed a gang killing in 2008. Shortly thereafter, Diaz de Gomez’s husband started receiving threats, including threats to kill Diaz de Gomez and other family members if he did not agree to work for the gang. Second, after Diaz de Gomez’s husband fled to the United States, her brother started receiving death threats to coerce him to join the gang. And third, Diaz de Gomez began to receive threats personally in 2015, after two key events: (1) the April 2015 moped collision initiated by the Zetas when gang members saw Diaz de Gomez with her brother, who had refused to join the gang and was murdered a few months later; and (2) Diaz de Gomez’s parents’ refusal to acquiesce to the gang’s attempts at extortion. In both instances, the gang threatened to kill the brother and parents’ family members if they did not agree to the gang’s demands. The timing and context of these threats lead to the unmistakable conclusion that Diaz de Gomez was targeted, at least for one central reason, based on her relationship to her family. In light of this evidence, the record conclusively shows that more than one central reason motivated the gang’s death threats against Diaz de Gomez, namely, her and her family’s refusal to acquiesce to the gang’s several demands, and Diaz de Gomez’s familial ties to her brother, husband, and parents. As we previously have emphasized, the fact that the gang sought to recruit Diaz de Gomez and her family members does not preclude a finding that her familial ties were another central reason that she was persecuted by the gang, establishing the required nexus.“

The Court further concluded that the petitioner had demonstrated that the Guatemalan government was unable or unwilling to control her persecutors. “Diaz de Gomez provided credible testimony that she reported the escalating threats against her to the police in 2015, following the moped accident. She stated that she had been afraid to report the threats earlier, because people tend to “just show up dead” after filing police reports. To support her allegations, she showed law enforcement officers the written messages she had received, and also provided audio recordings of the telephone threats. She reported the threats to both the public affairs ministry and to the local police. Neither law enforcement agency took any action in response to the reports; no one was arrested, and officials never provided Diaz de Gomez any updates on the investigation. She returned to the police station twice to check on the status of the investigation, and was told both times that the person in charge of her case was unavailable. A friend who followed up after Diaz de Gomez left for the United States received the same response. This lack of action by law enforcement authorities is consistent with evidence of country conditions that Diaz de Gomez submitted to corroborate her claims. The 2015 Department of State Country Report on Human Rights Practices noted Guatemala’s widespread institutional corruption, particularly in the police and judicial sectors, including the involvement of police and military officers in drug trafficking and extortion. Referencing the Zetas specifically, one 2010 academic study explained that the gang has a “propensity to attack state institutions,” including by bribing police and judicial officials and infiltrating the gang’s supporters into the civil service. Approximately $1 billion of drug proceeds is used to bribe Guatemalan government officials annually, and corruption is rampant at the local level. Notably, organized crime has infested so many Guatemalan] state institutions as to render them virtually worthless, and the government has fail[ed] to provide even a minimal level of domestic security. This evidence of widespread gang influence and corruption, together with Diaz de Gomez’s credible testimony regarding her fear of reporting the Zetas and the failure of law enforcement to investigate her claim, leads to the inescapable conclusion that the government was unwilling or unable to protect her from her persecutors.”

The full text of Diaz de Gomez v. Wilkinson can be found here:

https://www.ca4.uscourts.gov/opinions/192115.P.pdf

Fourth Circuit Finds that BIA's Particularity Definition is Unreasonable

The Fourth Circuit has determined that the Board of Immigration Appeals’ (BIA) definition of particularity, as defined in Matter of W-G-R-, is not reasonable.

“First, the BIA’s description of the particularity requirement in W-G-R impermissibly conflates it with the social distinction requirement. The particularity requirement flows quite naturally from the language of the statute and is necessary to ensure there is a clear benchmark for determining who falls within the group. As such, particularity is a definitional question—an inquiry meant to ensure there is an adequate benchmark for setting the boundaries of the group.” “Similarly, the social distinction requirement flows from the statute and is necessary to ensure that the PSG is perceived as a group by society. Social distinction thus asks whether the home society actually does recognize that group as being a distinct and identifiable group.”

“Critically, the requirements serve distinct purposes, and it is important to consider them separately and with integrity to their purposes. The BIA’s articulation of particularity in W-G-R-, however, fails to do this. More specifically, the BIA claims there is some overlap between the particularity and social distinction requirements because both take account of the societal context specific to the claim for relief. In general, there is nothing unreasonable about overlap among legal elements or requirements. That happens all the time in the law. But what the BIA calls overlap is actually the incorporation of the social distinction requirement into the particularity requirement. According to the BIA, the particularity question is whether the group can be described in sufficiently distinct terms that it would be recognized, in the society in question, as a discrete class of persons.d. If that is true, the particularity inquiry requires an analysis into whether the PSG is an identifiable, recognized group from the perspective of the pertinent society. That inquiry, however, is essentially the same analysis the BIA requires for social distinction. This conflation of the particularity requirement with the social distinction requirement not only creates an analytical muddle but also renders the BIA’s third part of the PSG test—social distinction—surplusage.”

“The BIA unreasonably grounded its rejection of the PSG in W-G-R- in part on the fact that it could further subdivide the group in any number of ways—by age, sex, or background or by level of involvement with the gang. We fail to see how this reasoning provides clarity to the group’s boundaries, as it only points out that there are smaller parts to any whole. What matters is not whether the group can be subdivided based on some arbitrary characteristic but whether the group itself has clear boundaries.”

“Here, the boundaries of Amaya’s proposed PSG—“former Salvadoran MS-13 members”—are clear. On its face, ‘former Salvadoran MS-13 members’ contains several self-limiting features that provide clear benchmarks for the boundaries of the group. First, the reference to a single notorious gang leaves no ambiguity as to how a ‘gang’ might be defined. Second, the group only includes people of Salvadoran nationality, eliminating many people with MS-13 affiliation from other countries. Third, and most significantly, the group does not include those who never joined the MS-13 gang. All those self-limiting features baked into the definition of the group aid in its determinacy.”

“Indeed, there are many ways one can become a former member of a group, and those differences may be fatal to an argument that the alleged persecution was on account of membership in the PSG. But they are irrelevant to the particularity inquiry. Further specification of how one becomes a former member does not more clearly define the boundaries of the group; instead, it arbitrarily makes the group smaller. It is already sufficiently clear who is a former member of a group—it is someone who (1) joined the group and (2) is no longer in the group.”

The full text of Amaya v. Rosen can be found here:

https://www.ca4.uscourts.gov/Opinions/191619.P.pdf

An amended version of the opinion can be found here:

https://www.ca4.uscourts.gov/opinions/191619.P.pdf

First Circuit Overturns Denial of Motion to Reopen for Individual on U Visa Waitlist

The First Circuit has determined that the Board of Immigration Appeals “abused its discretion in this case because it failed to follow its own precedents, persuasive circuit law, and DHS policies” when it denied a timely motion to reopen filed by an individual placed on the U visa waitlist and granted deferred action. Because the petitioner had asked for reopening and remand to seek a continuance before the Immigration Judge, the Court determined that the standard in Matter of Sanchez Sosa was the appropriate standard to apply. “The Board itself has also found that a U visa waitlist determination warranted reopening and remand, using the Sanchez Sosa standard, in at least two unpublished decisions.”

The full text of Granados Benetiz v. Wilkinson can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/20-1541P-01A.pdf

First Circuit Remands Asylum Application of Iraqi Military Contractor

The First Circuit has remanded an asylum claim filed by an Iraqi who worked as a contractor for the US military, assuming that “Iraqis who provided assistance to the U.S. military” could be a cognizable social group for asylum purposes.

The full text of Al Amiri v. Rosen can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/19-1447P-01A.pdf

CA Ct. of Appeal Denies 1473.7 Motion for Lack of Corroborating Evidence of Prejudice

The California Court of Appeal, Fourth Appellate District, has denied a motion to vacate under section 1473.7 of the Penal Code for failure to provide sufficient evidence of prejudice. The court noted that there was no contemporaneous evidence to support the defendant’s assertion that he would not have taken the plea if he had been properly advised of the immigration consequences of the plea. “Defendant could have provided contemporaneous evidence to support his claim that he had not been understandably admonished as to his immigration consequences. Such evidence could have included a declaration or testimony by his then defense counsel, David Ross, or the interpreter who signed the plea bargain form, Elias Uribe, or the hearing transcript from the June 24, 1997 hearing on his plea. He produced none of these, nor offered any explanation for not doing so.”

“Defendant’s declaration does contain statements to be considered in the context of contemporaneous evidence. Chief among these are his assertions of his family in the United States and his need to support them.” “[T]hese statements do not avail defendant. They simply emphasize that he elected to take the plea bargain to obtain release and return to his girlfriend and son and resume his job.”

The full text of People v. Bravo can be found here:

http://sos.metnews.com/sos.cgi?1220//E072782

Ninth Circuit Upholds Injunction of Public Charge Rule

The Ninth Circuit has agreed with two District Court injunctions of USCIS’s public charge rule, though it has narrowed the scope of the injunction to the plaintiff-states.

The full text of City and County of San Francisco v. USCIS can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/02/19-17213.pdf

BIA Vitiates "Self-Lozada" Procedure

The Board of Immigration Appeals has determined that when an attorney admits that they rendered ineffective assistance of counsel, their client is not excused from filing a bar complaint, when the same attorney is trying to reopen the proceedings based on their admitted ineffective assistance. In addition, the Board has determined that the respondent must show that that, but for counsel’s error, he would have prevailed on his claim, in order to establish the required prejudice for an ineffective assistance of counsel finding.

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

justice.gov/eoir/page/file/1342986/download

BIA Defines Role of Expert Testimony

The Board of Immigration Appeals has determined that when an Immigration Judge finds an expert to be a credible witness, it does not follow that the Immigration Judge must accept all the testimony and opinions provided as facts. “That said, when the Immigration Judge makes a factual finding that is not consistent with an expert’s opinion, it is important, as the Immigration Judge did here, to explain the reasons behind the factual findings.”

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

https://www.justice.gov/eoir/page/file/1346661/download

BIA Finds OR Second Degree Child Neglect Conviction is Crime of Child Abuse

The Board of Immigration Appeals has determined that an Oregon conviction for second degree child neglect is a crime of child abuse even though the statute only requires “the likelihood of exposure to harm, rather than the probability of a particular harm actually occurring.” “The language ‘may be likely to endanger’ has been interpreted to require circumstances that are ‘likely to make probable a state of being exposed to harm,’ and the risk of that harm occurring must be ‘substantial and unjustifiable.’ Because the statute requires criminal negligence and a showing of more than a mere possibility of, or potential for, harm, we conclude that respondent was convicted of a ‘crime of child abuse, child neglect, or child abandonment’ under section 237(a)(2)(E)(i) of the Act.”

The full text of Matter of Rivera-Mendoza can be found here:

https://www.justice.gov/eoir/page/file/1347841/download

Eleventh Circuit finds IJ Lacks Jurisdiction to Reopen Reinstated Removal Order

The Eleventh Circuit has determined that the reinstatement statute unambiguously prohibits the reopening of a reinstated removal order.

The full text of Alfaro-Garcia v. Attorney General can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/201912068.pdf

Eleventh Circuit Binds Petitioner to Attorney's Erroneous Concession of Removability

A petitioner whose attorney concedes removability for being present without admission or parole is stuck with that admission, despite providing testimonial and documentary evidence that she was admitted on a tourist visa, because it is possible that she entered on the visa, departed, and then subsequently entered without inspection.

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

https://media.ca11.uscourts.gov/opinions/pub/files/201912383.pdf

Eleventh Circuit Deems FL Vehicular Homicide Conviction to be CIMT

The Eleventh Circuit has determined that a Florida conviction for vehicular homicide is a crime involving moral turpitude because it requires “willful or wanton conduct.”

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

https://media.ca11.uscourts.gov/opinions/pub/files/201912622.pdf

Tenth Circuit Overturns Internal Relocation Finding

The Tenth Circuit has reversed the agency’s determination that a Ghanian asylum seeker could safely relocate within Ghana to escape harm from a rival tribe. “The government has offered no evidence that Atwode are not present in other Ghanaian cities to which it would have Petitioner relocate. And more importantly, the government has no evidence linking the Atwode’s ability to track and threaten Petitioner in Accra with the ‘presence’ of Atwode migrants in that city. The government has thus failed to satisfy its burden to show that Petitioner’s experience in Accra––where he apparently was tracked, threatened, and shot at by Atwode as he moved from address to address––could not be duplicated in other parts of Ghana.”

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

https://www.ca10.uscourts.gov/opinions/18/18-9560.pdf

Ninth Circuit Reverses Injunction of Healthcare Proclamation

The Ninth Circuit has reversed the injunction of the Healthcare Proclamation, which requires immigrant visa applicants to demonstrate they can acquire health insurance within 30 days of entry or have the ability to pay for their foreseeable healthcare costs. The court found the proclamation was within the president’s executive authority.

The full text of Doe #1 v. Trump can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/31/19-36020.pdf

Ninth Circuit Addresses Removability of SAW-Based LPR

The Ninth Circuit has determined that under SAW, an alien who was inadmissible at the time of his adjustment to temporary resident status because of disqualifying convictions may be removed after his automatic adjustment to permanent resident status, despite the Attorney General never having initiated termination proceedings while the alien was a temporary resident. “It is true that SAW provides specific authority for the Attorney General to terminate an alien’s temporary resident status and thereby prevent automatic adjustment to permanent resident status under SAW. But neither the SAW statutory provisions nor implementing regulations suggest, much less mandate, that these provisions are the exclusive means by which the government may remove an alien on the ground that he was inadmissible at the time he adjusted to temporary resident status under SAW.”

The Court distinguished the case from its decision in Perez-Enriquez v. Gonzales. “While Perez Enriquez sustained his convictions after adjusting to temporary resident status under SAW, Hernandez Flores was convicted of his drug offenses before acquiring such status.”

The full text of Hernandez Flores v. Rosen can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/30/17-72888.pdf

Ninth Circuit Upholds Injunction of Some New Regulations Related to UACs

The Ninth Circuit has upheld the injunction of certain regulations related to unaccompanied alien children as inconsistent with the Flores agreement. First, the panel concluded that the provision allowing the Office of Refugee Resettlement (ORR) to place an unaccompanied minor in a secure facility (e.g., a state or county juvenile detention facility) if the minor is “otherwise a danger to self or others” is inconsistent with the Agreement. The court explained that the relevant statutory provision states that a minor shall not be placed in a secure facility “absent a determination that the child poses a danger to self or others,” not that ORR may place a minor in a secure facility whenever it makes that determination. Second, the panel concluded that the portion of the bond hearing regulations providing a hearing to unaccompanied minors held in secure or staff-secure placements only if they request one is inconsistent with the Agreement, which provides unambiguously for a bond hearing “unless the minor indicates . . . that he or she refuses such a hearing.” As to the DHS regulations regarding initial apprehension, processing, and custody of both unaccompanied and accompanied minors, the court held that some of the regulations relating to accompanied minors depart from the Agreement in two principal, related ways: (1) they limit the circumstances in which accompanied minors may be released, and (2) they provide for the detention of families together in facilities licensed not by states but by Immigration and Customs Enforcement itself.

The full text of Flores v. Rosen can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/29/19-56326.pdf