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 Eleventh Circuit has found there is no habeas jurisdiction to prevent the removal of applicants for provisional waivers of unlawful presence who are subject to final orders removal.
The full text of Camarena v. ICE can be found here: https://media.ca11.uscourts.gov/opinions/pub/files/201913446.pdf
The Tenth Circuit has affirmed a removal order against a student visa holder who failed to maintain a full course of study while he was incarcerated pending trial, despite the fact that he was subsequently acquitted at trial.
The full text of Awuku-Asare v. Garland can be found here:
The Tenth Circuit has determined that a Utah terroristic threats conviction is a crime involving moral turpitude. “We hold that recklessly threatening substantial property damage with the intent of interrupting public access to a portion of a building is a CIMT.” The court also affirmed Matter of G-G-S- and determined that the agency need not consider a petitioner’s mental health when determining whether the petitioner has been convicted of a particularly serious crime.
The full text of the extremely sad case of Birhanu v. Wilkinson can be found here:
The Ninth Circuit has rejected the proposed particular social group comprised of “witnesses who could testify against gang members based upon what they witnessed,” find that the group lacked particularity. The court remanded the Convention Against Torture claim based on evidence in the Department of State Human Rights Report. “Although the IJ declined to receive the Report as an official part of the record because the form in which it was offered did not comply with the rules, the IJ’s decision treated it as part of the record by taking judicial notice of it. Aguilar-Osorio has relied upon the Report in his appeal to the BIA and in his brief to this court. Yet the BIA decision neither took the Report into account nor explained why it was not taking it into account.”
The full text of Aguilar-Osorio v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/15/19-73000.pdf
The Ninth Circuit noted that a changed country conditions motion to reopen can be partially premised on a change in personal circumstances, but that it also must show a change in related country conditions. “Instead, Petitioner provided evidence of changes in his personal circumstances, along with evidence supporting his argument that, given his changed personal circumstances, he could now be persecuted or tortured based on current country conditions in Mexico. What is noticeably absent from Petitioner’s ‘hybrid’ changed conditions claim is evidence of actual changed country conditions between 2003 and his 2016 motion to reopen.”
The full text of Rodriguez v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/15/20-70240.pdf
The Ninth Circuit has determined that a federal conviction for importing, manufacturing, or dealing in firearms without a license is an aggravated felony. The court deferred to the agency’s determination that “illicit trafficking in firearms” means “any unlawful trading or dealing” in firearms.
The full text of Chacon v. Wilkinson can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/02/18/18-71515.pdf
In a case in which the agency assumed that family and landownership could serve as particular social groups for asylum purposes, the Ninth Circuit reversed the agency’s finding that these social groups were not one central reason for the harm the applicant suffered. The court noted that the agency found that both land ownership and family ties motivated the persecutors, and thus, the nexus analysis was legally erroneous.
“Garcia or members of her family similarly have experienced murder, specific death threats, forcible taking of property, attempted conscription, and retaliation for failed conscription. Furthermore, the timing of the persecution and statements by the persecutor may constitute circumstantial evidence of motive. The cartel in part targeted Garcia’s husband to obtain his property, but Garcia’s husband was still killed even after he had turned over the property deed, which suggests the cartel may have targeted him for reasons beyond the possibility of stealing his property. Beyond that, the cartel then sought out Garcia at her husband’s funeral, a uniquely family affair, threatening her so that she would remain silent about his death. The cartel sought out Garcia once again after she helped her son escape to the United States to avoid the Templars’ recruitment efforts. In this coercive effort, the Templars forced her from her home and took her property. Parada indicates that such sweeping retaliation towards a family unit over time can demonstrate a kind of animus distinct from purely personal retribution. This kind of targeting is sufficient to demonstrate nexus if the petitioner shows via uncontradicted testimony that persecutors specifically sought out the particular social group’ of his family.”
The full text of Naranjo Garcia v. Wilkinson can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/02/18/19-72803.pdf
The Ninth Circuit has determined that California Health and Safety Code section 11350 is overbroad and divisible with respect to the identity of the controlled substance.
The full text of Lazo v. Wilkinson can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/02/26/14-73182.pdf
The Ninth Circuit has determined that if the government of the third country in which an asylum seeker has resettled is unable or unwilling to protect the asylum seeker from persecution by private parties, the asylum seeker qualifies for an exception to the firm resettlement bar. In this case, which involved a Somali citizen who had obtained refugee status in South Africa, the immigration judge had paradoxically found the petitioner firmly resettled in South Africa, but granted withholding of removal based on past persecution in South Africa.
The full text of Aden v. Wilkinson can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/04/17-71313.pdf
The Ninth Circuit has rejected the proposed particular social groups of “Salvadoran women who refuse to be girlfriends of MS gang members” and “Salvadoran women who refuse to be victims of violent sexual predation of gang members,” finding that the groups lacked social distinction. The court acknowledged that the record evidence establishes “generally that women in El Salvador can be ill-treated.”
The full text of Villegas Sanchez v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/11/16-73745.pdf
The Eighth Circuit has determined that Minnesota’s definition of aiding abetting is no broader than the federal definition.
The full text of United States v. Yackel can be found here:
The Eighth Circuit has determined that Florida statutes related to cannabis are overbroad because they include parts of the cannabis plant explicitly excluded from the federal definition. Because the statute was overbroad on its face, the Eighth Circuit determined that the realistic probability test did not apply, even in the context of a petitioner applying for relief from removal.
The full text of Lopez Gonzalez v. Wilkinson can be found here:
The Eighth Circuit has determined that an Illinois conviction for aggravated criminal sexual abuse of a child under age 13 qualifies as a sexual abuse of a minor aggravated felony.
The full text of United States v. Leal-Monroy can be found here:
The First Circuit has overturned an adverse credibility determination based on perceived inconsistencies between in-court testimony and a credible fear interview. The court noted that the credible fear notes are merely the officer’s notes, and not intended to be a full transcript. As such, the agency could not assume that the notes were an entirely accurate and complete record of the petitioner’s fear claim, especially since the credible fear interview only lasted an hour.
The full text of Cuesta-Rojas v. Garland can be found here:
The Second Circuit rejected a gang recruitment-based political opinion asylum claim, finding that opposition to the gangs is not a form of political opinion in the absence of any evidence that the gangs are political entities. The court also rejected the petitioner’s CAT claim - which was premised on the police taking him to the gang and watching gang members beat him and break his arm - because the passage of three months of time before the petitioner left the country and the continued presence of his family in the home country undermined the likelihood of future torture.
The full text of Zelaya-Moreno v. Wilkinson can be found here:
The Second Circuit has applied the CSPA’s age reduction formula to minor child of lawful permanent resident whose petitioning parent naturalized. The court determined that in this situation, the number of days the petition was pending should be subtracted from the beneficiary’s biological age to determine if the beneficiary is still under 21, and therefore, became an immediate relative when the parent naturalized.
The full text of Cuthill v. Blinken can be found here:
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:
