These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
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New Case Law
The First Circuit has determined that and “IJ's expression of ‘serious doubts"‘— coupled with her later declaration that all such doubts ‘could have been overcome with appropriate corroborating evidence’ — falls just short of an explicit adverse credibility determination.'“
The full text of Molina Diaz v. Wilkinson can be be found here:
The First Circuit has determined that the analysis of whether a labor certification is approvable when filed is a “holistic inquiry,” which requires connecting the facts and circumstances of a particular case to the standards for adjudicating labor certifications at the time of filing.
The full text of Oliveira v. Wilkinson can be found here: http://media.ca1.uscourts.gov/pdf.opinions/19-1258P-01A.pdf
The California Court of Appeals, Fourth Appellate District, has reversed the denial of a motion to vacate under section 1473.7 of the CA Penal Code, where the defendant initialed a plea form that stated she would be deported, excluded from admission, and denied naturalization, where the defense attorney testified that his custom was to ask about a defendant’s immigration status, where the defendant testified that she understood the immigration warnings to only indicated a possibility (not a certainty) of immigration consequences, and where the defense attorney’s notes erroneously stated that the defendant was a lawful permanent resident (she had DACA).
The trial court denied the motion, finding that the defendant had not proven that a third party was responsible for her misunderstanding of the immigration consequences of the plea. The appellate court reversed, noting that under its decision in Mejia, a defendant’s subjective misunderstanding of the immigration consequences is sufficient. The appellate court also noted that the denial of the defendant’s habeas petition did not prevent her from bringing a 1473.7 motion, as the habeas denial only concluded that her defense counsel did provide substandard representation, a different standard than that required under 1473.7.
The full text of People v. Jung can be found here:
The Board of Immigration Appeals has determined that “[i]ndividuals who cooperate with law enforcement may constitute a valid particular social group under the Immigration and Nationality Act if their cooperation is public in nature, particularly where testimony was given in public court proceedings, and the evidence in the record reflects that the society in question recognizes and provides protection for such cooperation.” The Board then denied relief to the respondent in this case because his cooperation with the FBI’s investigation into gang activities consisted of conversations in the jail, and did not include public testimony.
“The public nature of a police report or testimony, while not dispositive, is significant.” “In regards to social distinction, [] there must be evidence that the society in question generally views witnesses as a distinct group before the group will satisfy the social distinction requirement. Thus, it is important to focus on how the relevant society views prosecutorial witnesses.”
The Board noted that the Third Circuit had taken a different (and more generous) approach to the cognizability of social groups comprised of individuals who cooperate with the police, and does not require any type of public testimony.
The full text of Matter of H-L-S-A can be found here:
The Board of Immigration Appeals has determined that an Immigration Judge “may find a document to be fraudulent without forensic analysis or other expert testimony where the document contains obvious defects or readily identifiable hallmarks of fraud and the party submitting the document is given an opportunity to explain the defects.” In the instant case, “the respondent was questioned about his familiarity with the Commissioner for Education, whose purported signature appears on a December 2009 letter that the respondent submitted in support of his application and referenced in his declaration. The DHS submitted impeachment evidence indicating that a different person was serving as Commissioner for Education at that time. The respondent was also asked about how he obtained a ‘wanted’ flier he had submitted into evidence, and he was given the opportunity to explain why ‘Nigeria’ was misspelled and the signature and text were printed over a seal on the document.”
The full text of Matter of O-M-O- can be found here:
https://www.justice.gov/eoir/page/file/1351501/download
The Board of Immigration Appeals has concluded that “[w]here a notice to appear fails to specify the time or place of a respondent’s initial removal hearing, the subsequent service of a notice of hearing specifying this information perfects the notice to appear and ends the accrual of physical presence for purposes of voluntary departure.”
The full text of Matter of Viera-Garcia can be found here:
The Board of Immigration Appeals has determined that section 58-37-8(2)(a)(i) of the Utah Code, which criminalizes possession or use of a controlled substance, is divisible with respect to the identity of the specific “controlled substance” involved in a violation of that statute.
“It is undisputed that the respondent’s conviction for a class A misdemeanor under sections 58-37-8(2)(a)(i) and (b)(ii) of the Utah Code does not categorically fit within the definition of a controlled substance violation under section 237(a)(2)(B)(i) of the Act because, at all relevant times, schedules I and II of the Utah controlled substances schedules criminalized the possession of substances that are not included in the CSA. It is additionally undisputed that the statute of conviction is divisible, in part, because sections 58-37-8(2)(b) and (d) of the Utah Code, the relevant penalty provisions of the statute, mete out different punishments for violating section 58-37-8(2)(a)(i), depending on the circumstances underlying a particular violation. However, the parties disagree as to whether the Utah statute is divisible with respect to the identity of the particular controlled substance possessed in a violation of section 58-37-8(2)(a)(i)..”
:”However, after reviewing the language of section 58-37-8(2)(a)(i) of the Utah Code, relevant Utah jury instructions and case law, as well as the respondent’s record of conviction, we conclude that the identity of the specific controlled substance underlying a violation of section 58-37-8(2)(a)(i) is an ‘element’ of that statute, rather than a mere ‘means’ of violating it. “ First, the Board noted that “the plain language of section 58-37-8 reflects that penalties for drug offenses under this statute are not based simply on the schedule of the controlled substance involved in an offense. Rather, Utah must prove, and a jury must make findings regarding, a defendant’s criminal history and the identity and the amount of the controlled substance possessed to determine whether he was convicted of a second degree felony, third degree felony, a class A misdemeanor, or a class B misdemeanor. We therefore conclude that an element of section 58-37-8 is the identity of the specific controlled substance involved in a violation of that statute..” The Board also noted that the jury instructions for the statute call for the insertion of the name of the controlled substance at issue. Noting that the state courts permit separate prosecutions for concurrent possession of different substances, the Board noted that “[t]he respondent has not explained how, given the prohibition against double jeopardy, a defendant could be convicted of multiple counts of possession of a controlled substance where the defendant committed a single act of possession involving separate substances, if the identity of the specific controlled substance possessed was simply an alternative means of committing the offense, rather than an element of section 58-37-8(2)(a)(i).” Finally, the Board noted that the indictment in the instant case listed only one substance, another indicator that the substances are elements, not means.
The full text of Matter of Dikhtyar can be found here:
In yet another blow to the asylum system just days before the Trump Administration was set to leave office, the Acting Attorney General issued another decision in Matter of A-B-, the horrendous asylum decision issued by Jeff Sessions that seeks to wipe out all forms of asylum related to non-state actor persecution.
Despite a rather scathing opinion from the DC Circuit to the contrary, the Attorney General doubled down on his claim that “complete helplessness” is the same standard that has always been applied to determine if a government is unable or unwilling to control a persecutor. I cannot even begin to describe the sheer absurdity of this statement.
The Attorney General clarified that“[t]he word ‘persecution’ therefore should be read to require that the government in the home country has fallen so far short of adequate protection as to have breached its basic duty to protect its citizens, or else to have actively harmed them or condoned such harm. Where the government is actively engaged in protecting its citizens, failures in particular cases or high levels of crime do not establish a breach of the government’s duty to protect its citizenry.” Furthermore, if a noncitizen “may reasonably relocate within his home country to avoid persecution, then that may show that the failure to prevent private violence is localized and the foreign country is not itself ‘unwilling or unable’ to prevent persecution. Although evidence of localized police apathy or incompetence may indicate a government’s unwillingness or inability to prevent persecution, in many cases the localized apathy is just that—localized. The applicant may receive effective government protection by relocating within their home country, where the attitudes of local authorities may be different.”
The Attorney General reiterated the two-pronged nexus test laid out by the Board of Immigration Appeals: the applicant’s protected status must be both a but-for cause of her persecution and it must play more than a minor role that is neither incidental nor tangential to another reason for the harm or a means to a non-protected end. Nevertheless, the Attorney General was forced to recognize that Fourth Circuit case law only required that the but-for causation be established.
The full text of the new decision in Matter of A-B- can be found here:
The Ninth Circuit has granted a petition for rehearing in Cheneau v. Barr, in which it determined that former 8 USC 1432(a)(5) requires a child to have obtained lawful permanent residence in the United States prior to age 18 in order to derive citizenship.
My blog post about the original three-judge decision can be found here:
http://www.sabrinadamast.com/journal/2020/8/30/ninth-circuit-construes-prior-derivative-citizenship
The order granting rehearing can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/01/06/15-70636.pdf
The Ninth Circuit has rejected the proposed particular social group of “young Christian males who oppose gang membership.” In so doing, the court noted that “the evidence does not compel the conclusion that Honduran society would distinguish between a young Christian male who resists gang recruitment and any other young man who seeks to avoid gang membership.”
The full text of Santos-Ponce v. Wilkinson can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/02/10/18-72433.pdf
The Ninth Circuit has rejected the proposed particular social group comprised of “Mexican wealthy business owners.” “Substantial evidence supports the holding that Macedo failed to establish a particular social group. First, the Agency was correct that Macedo’s proposed group was not socially distinct. The record does not include evidence that Mexican society perceives wealthy business owners as a distinct group, and the 2013 United States Department of State’s Country Report on Mexico states that kidnapping for ransom occurs at all socioeconomic levels. Second, the proposed group lacks particularity because it could include large swaths of people and various cross-sections of a community. Finally, being a wealthy business owner is not an immutable characteristic because it is not fundamental to an individual’s identity.”
With respect to his protection under the Convention Against Torture, the court found sufficient testimonial evidence that he was harmed by police officers. The court reiterated that there is no “rogue official” exception to torture perpetrated by government officials.
The full text of Macedo Templos v. Wilkinson can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/02/09/15-73122.pdf
The Ninth Circuit has determined that a Canadian who was permitted to enter the United States as a passenger in a vehicle through a port of entry has not illegally re-entered the United States for the purpose of reinstatement. The court distinguished this scenario from any situation in which a petitioner uses fraud or other types of deceit to re-enter, noting that Canadians are permitted to enter the United States without visas.
The full text of Tomczkyk v. Wilkinson can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/02/03/16-72926.pdf
The Ninth Circuit has reaffirmed that a Notice to Appear (NTA) missing the time and location information of the first removal hearing can still vest jurisdiction with the Immigration Court once it is filed with the court. However, in the context of an illegal reentry case, the defective NTA may raise due process violations, especially when there is some doubt as to whether the subsequent hearing notice was actually served on the petitioner.
The full text of United States v. Bastide Hernandez can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/02/02/19-30006.pdf
The court issued an amended opinion on July 12, 2021, remanding for the District Court to determine if the petitioner had met the requirements articulated in US v. Palomar-Santiago: https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/12/19-30006.pdf
The Ninth Circuit has reaffirmed that attempted rape is harm rising to the level of persecution. “The BIA erred in imposing evidentiary requirements of ongoing injury or treatment beyond the sexual assault itself in order to show persecution. Kaur’s credible testimony about the attempted gang rape is sufficient to show persecution. Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
The court also reversed the agency’s finding that the petitioner was not harmed by government actors. “The administrative record reflects that when Kaur’s persecution began, the Congress Party was already part of the government in Punjab: it held 46 out of 117 seats in the state legislature and was a key opposition party with the ability to shape laws and exert influence over the civil service. The Congress Party became the ruling party in the state of Punjab in March 2017, mere months after Congress Party agents attempted to gang rape Kaur, telling her that they were doing this to her because she was ‘working for the Mann Party’ and ‘not supporting [the Congress Party] in any way.’ Thus, some of the more severe forms of Kaur’s persecution occurred during the Congress Party’s electoral rise. Furthermore, the last known persecutory event against Kaur and her family occurred in 2018, a full year after the Congress Party’s electoral victory made it the official head of the state government. Finally, from the time Kaur appeared before the IJ through the present, the Congress Party has remained the leader of the Punjab government.” “[W]hen a petitioner suffers persecution at the hands of a major political party both during and after its rise to power from a minority voting bloc in the legislature to the head of government, the source of the persecution is the government itself.”
The full text of Kaur v. Wilkinson can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/01/29/18-73001.pdf
The Fourth Circuit reversed the dismissal of unlawful delay claims brought by U visa applicants who filed their applications for status in 2015 and 2016, and remanded the claims for further proceedings before the District Court. The court, however, found no authority to compel the agency to issue pre-wait list employment authorization to the applicants.
The full text of Gonzalez, et. al v. Cuccinelli can be found here:
The Eighth Circuit has joined the Ninth Circuit in finding that a petitioner’s mental health struggles must be considered by the agency when determining if a petitioner has been convicted of a particularly serious crime. “However, we fail to understand how a petitioner’s mental health can never be relevant to the circumstances and underlying facts”of the conviction, especially, as the BIA noted, in light of the impact mental illness can have on an individual’s behavior. As such, we find that the BIA’s categorical bar of consideration of mental health evidence, as contemplated in Matter of G-G-S-, is an arbitrary and capricious construction of 8 U.S.C. § 1231, and we reject such a categorical evidentiary bar in the particularly serious crime analysis.”
The full text of Shazi v. Wilkinson can be found here:
The Eighth Circuit has reversed a finding that there is a serious reason to believe that a petitioner committed a serious nonpolitical crime outside the United States. In so doing, the court concluded that the “serious reasons for believing” standard requires a finding of probable cause before an alien can be subject to the mandatory bar.
“The statutory framework and relevant case law direct us to require something more than “some evidence” in order to meet the probable cause standard in cases involving “serious reasons for believing” that a serious nonpolitical crime was committed. The parties did not cite, and we could not find, a case in which a court has found a Red Notice, alone, is sufficient to meet this standard. Also complicating the analysis in this case is whether or not the charges giving rise to the Red Notice had been dismissed. Barahona submitted evidence that the charges had been dismissed. DHS did not refute and did not ask for additional time to resolve whether this was accurate. The BIA erred in this case when it failed to make a probable cause finding, particularly in light of the dispute regarding the underlying criminal charges that gave rise to the Red Notice.”
The full text of Barahona v. Wilkinson can be found here:
https://ecf.ca8.uscourts.gov/opndir/21/02/201546P.pdf
An amended version of the opinion can be found here:
The Second Circuit has determined that the conditions in 41-bis detention (a detention setting for mafia associates) in Italy do not amount to torture, despite including prolonged solitary confinement, limited access to counsel and family, and (at times) lack of access to medical care. The decision drew a lengthy dissent, which characterized solitary confinement as “one of the true horrors of the modern-day penal system.”
The full text of Gallina v. Wilkinson can be found here:
The Seventh Circuit has concluded that it may have jurisdiction to review a hardship determination in the context of a cancellation of removal application as long as the appeal “raises either pure legal questions or the application of a legal standard to undisputed or established facts.” The court did not ultimately have to reach a definitive conclusion on this issue, finding that the petition for review raised pure legal issues. “The first is whether an IJ commits error when he fails to make an express credibility finding, and then holds that gap in the record against the applicant. Such an error would go to the procedural sufficiency of the hearing, which is a legal point. The second question relates to the hardship issue and the IJ’s and Board’s application of the standard for such evidence to the facts before them.”
The court concluded that “when an IJ says nothing about credibility, yet later based his decision on the applicant’s failure to produce evidence supporting otherwise undisputed testimony, he commits procedural error.” “The statute requires the IJ to make an express credibility finding, both to ensure that the evidence is properly assessed, and to facilitate meaningful review by both the Board and the court. Because the IJ did not do so here, we cannot rely on this ground for his decision. Perhaps the Board had a similar concern, as it chose to rest its decision exclusively on the hardship ground.”
With respect to the hardship determination, the court recognized that “the Board does not commit an ‘error of law’ every time an item of evidence is not explicitly considered or is described with imperfect accuracy, but where, as here, some facts important to the subtle determination of exceptional and extremely unusual hardship have been … seriously mischaracterized, we conclude that an error of law has occurred.” “At some point, the individual hardship described by an IJ will diverge too much from the actual hardship shown in the record. The error in such a case is procedural: the failure to take into account the entire record, no matter what the final conclusion might be.” The IJ and the Board cannot simply announce that there is no evidence on a point that is in fact well covered in the record. Between the IEP and Mitten’s testimony, there was ample disinterested evidence on which to base an assessment of the severity of Melanie’s condition. We have no way of knowing whether, had the IJ and Board looked at this evidence, they still would have found that Martinez-Baez failed to establish the requisite hardship to a qualifying relative.”
The full text of Martinez-Baez v. Wilkinson can be found here:
The Seventh Circuit has concluded that stop-time rule articulated in Pereira v. Sessions does not apply to Orders to Show Cause that are missing the time and location information for the first deportation hearing. In addition, the court reaffirmed that an individual in deportation proceedings cannot apply for cancellation of removal.
The full text of Perez-Perez v. Wilkinson can be found here:
