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New Case Law
The Board of Immigration Appeals has determined that an Immigration Judge may consider whether a respondent misrepresented the bona fides of her prior marriage at an I-751 interview, even if USCIS has approved an I-130 filed by a subsequent spouse.
It is strange that this respondent did not seek a 212(i) waiver before the Immigration Judge, since she was married to a U.S.-citizen spouse, and had a qualifying relative for the waiver.
The full text of Matter of Mensah can be found here:
The Board of Immigration Appeals has concluded that when the Department of Homeland Security states that an applicant may be removed to a specific country, the applicant may seek withholding of removal from that country in withholding-only proceedings, even if that country is different from the country that was originally designated in the reinstated removal order on which the withholding-only proceedings are based.
In this case, the applicant indicated that he was actually a citizen of Honduras, despite having been previously removed to Mexico, and the Department of Homeland Security indicated it would remove the applicant to Honduras.
The full text of Matter of A-S-M- can be found here:
justice.gov/eoir/page/file/1385691/download
The Board of Immigration Appeals has determined that New York conviction for first-degree aggravated unlicensed operation of a motor vehicle is a crime involving moral turpitude because it requires the defendant to drive under the influence of alcohol or drugs while knowing or having reason to know that his or her license is suspended.
The full text of Matter of Vucetic can be found here:
The Board of Immigration Appeals (BIA) has determined that the “offense clause” of the federal conspiracy statute (which criminalizes conspiracy to commit an offense against the United States) is divisible with respect to the object of the conspiracy. The BIA then concluded that conspiracy to sell counterfeited currency is a crime involving moral turpitude.
The full text of Matter of Al Sabsabi can be found here:
The Eleventh Circuit has determined that an individual who was a U.S. citizen when he was convicted of an aggravated felony, and who was subsequently denaturalized, is not deportable as an aggravated felon for that conviction.
The full text of Hylton v. Attorney General can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/201914825.pdf
The Eleventh Circuit has rejected an argument that Florida’s felon in possession of a firearm statute is broader than the definition of a firearms-related aggravated felony because it includes possession of antique firearms excluded from the federal definition. In so doing, the court noted that the petitioner had not identified any case in which Florida prosecuted an offense involving an antique firearm, and as such, had not demonstrated a reasonable probability that the statute of conviction was broader than the deportability ground.
The full text of Aspilaire v. Attorney General can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/201912605.pdf
The Eleventh Circuit has remanded an asylum case brought by a Cuban journalist for the agency to determine if the Cuban government has a pattern and practice of persecuting dissident journalists.
The full text of Cabrera Martinez v. Attorney General can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/201914110.pdf
The Tenth Circuit, while assuming that family could be a valid particular social group, rejected an asylum claim where the “gang was threatening family members as a means to achieve an end that was unrelated to a protected ground.” The court recognized its decision was contrary to Fourth Circuit precedent involving a similar fact pattern.
The full text of Orellana Recinas v. Garland can be found here:
https://www.ca10.uscourts.gov/opinions/19/19-9596.pdf
The Ninth Circuit has determined that a petitioner cannot bring a collateral attack on an expedited removal order, citing a gross miscarriage of justice, in a reinstatement proceeding. “We have held that this language precludes most collateral attacks on the validity of the removal order being reinstated, unless the petitioner can show that a ‘gross miscarriage of justice’ occurred during the earlier removal proceedings. But even that narrow sliver of jurisdiction is foreclosed when the underlying order is, as in this case, an expedited removal order.”
The court also affirmed the legality of the reasonable fear regulations. “The regulation the agency adopted in response achieves both of Congress’s objectives. It allows immigration officials ‘to quickly identify and resolve frivolous claims to protection,’ thereby recognizing Congress’s desire to ensure the swift removal of non-citizens subject to reinstatement. At the same time, a screening process addresses the United States’ treaty obligations by making it possible for those who do have a reasonable fear of persecution or torture to receive a hearing before an immigration judge at which they can establish their entitlement to appropriate relief.”
Finally, the court recognized that given the abbreviated nature of a reasonable fear interview, it is unreasonable to expect a petitioner to be able to submit significant corroborating documentary evidence. “Non-citizens in reinstatement proceedings who express a fear of returning to their home country typically appear for a reasonable fear interview within a short time of their apprehension by immigration authorities. Many, like Alvarado Herrera, are being held in detention facilities and do not have legal representation. As a result, they cannot realistically be expected to produce for the asylum officer’s review the kind of detailed country conditions evidence that would be introduced during a merits hearing before an immigration judge. Nor would such a demand be consistent with the purpose of a reasonable fear interview, which is simply to screen out frivolous claims for relief in as expeditious a manner as possible. Thus, if a non-citizen provides an otherwise credible account concerning his fear of torture, his own statements can supply adequate support for claims about country conditions, at least for purposes of satisfying the ten percent threshold necessary to pass a reasonable fear screening interview.”
The full text of Alvarado-Herrera v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/13/18-70191.pdf
The Ninth Circuit has concluded that the Oregon statute governing first-degree burglary is overbroad as compared to the generic definition of a crime involving moral turpitude because it proscribes any unlawful entry into any “building,” including a commercial space, with any criminal intent. However, the court determined that the statute is divisible between two distinct crimes: (1) first-degree burglary of a dwelling; and (2) first-degree burglary of a non-dwelling involving an aggravating factor. The court also deferred to Matter of J-G-D-F and found that burglary of a regularly or intermittently occupied dwelling is a crime involving moral turpitude.
The full text of Diaz-Flores v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/06/17-72563.pdf
The Ninth Circuit has recognized that a woman who was repeatedly abused because she believed women are equal to men was persecuted on account of her political opinion. “That an unprotected ground, such as a personal dispute, also constitutes a central reason for persecution does not bar asylum.” “That some incidents of abuse may also have reflected a dysfunctional relationship is beside the point. Petitioner need not show that her political opinion—rather than interpersonal dynamics—played the sole or predominant role in her abuse.”
“Petitioner was persecuted because of that political opinion. The record contains episode after episode of men stating, quite plainly, that they were beating, burning, raping, and strangling her because she sought an equal perch in the social hierarchy. Hernandez left bite and strangulation marks on Petitioner after she took a job against his wishes, to show other men that she ‘had an owner.’ Petitioner’s husband, Baron, burned a cigarette into her face because she refused to leave her job and, according to her husband, acknowledge ‘that he’ and [Petitioner] were not equals.’ Petitioner was doing something wrong, Baron said, by ‘providing money’ when, ‘as a man, it was his duty to do [that].’ When he said that Petitioner ‘didn’t have th[e] right to have that job,’ Petitioner countered that she did. Baron responded by hitting her.”
The full text of Rodriguez Tornes v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/05/19-71104.pdf
The Ninth Circuit has determined that the clinical term “intellectual disability” may satisfy the “particularity” and “social distinction” requirements necessary to qualify for asylum and withholding of removal. “Acevedo was diagnosed with ‘intellectual disability’ as that term is used within the psychological profession. The particular social group that he proposed did not encompass all mental illnesses and was not based on a lay description but was limited to individuals with a specific diagnosis of ‘intellectual disability,’ as defined by the DSM-5. Intellectual disability, formerly known as ‘mental retardation,’ is a commonly recognized mental illness for which the DSM-5 details a well-established medical definition providing several universal, specific, immutable characteristics. These characteristics provide a clear benchmark from which professional psychologists can determine who falls within the group..” “The fact that the average layperson may not be able to accurately identify an individual with an Intellectual Disability does not make the clinical definition subjective or amorphous. Similarly, the possibility that individuals within the group may have sub-diagnoses or concurrent diagnoses does not make the group overbroad.”
“First, the BIA committed a legal error in holding that the proposed group did not meet the social distinction requirement because the record does ‘not support the determination that El Salvadoran society in general perceives [the proposed group] to be a meaningful social unit, distinct from the larger population of mentally ill individuals.’ The social distinction inquiry asks whether the ‘society in general perceives, considers, or recognizes persons sharing the particular characteristic to be a group,’ not whether the group is sufficiently distinguishable from other, similarly persecuted groups, or whether the individual is a part of one group to the exclusion of other groups. The possibility that individuals with intellectual disabilities are subsumed in a larger group of persecuted individuals with mental illnesses does not control the social distinction analysis, because the question is whether individuals with intellectual disabilities are singled out for greater persecution than the general population. Second, the BIA erred in holding that ‘the fact that individuals with certain illnesses or disabilities may face discrimination or harassment if exhibiting outward symptoms or behavioral manifestations of those conditions does not establish that the respondent’s particular social group is socially distinct.’ That conclusion seems inconsistent on its face. If individuals are treated badly because they manifest a certain condition, that treatment by itself suggests that the group of people with that condition is viewed as socially distinct, because they have been singled out for mistreatment. We have repeatedly recognized that ‘evidence such as country conditions reports, expert witness testimony, and press accounts of discriminatory laws and policies, historical animosities, and the like may establish that a group exists and is perceived as ‘distinct’ or ‘other’ in a particular society.’”
The full text of Acevedo Granados v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/24/19-72381.pdf
The Eighth Circuit has determined that an individual who was admitted to the United States on a visa after being removed, but who did not request permission to return to the United States prior to returning to the country, is subject to reinstatement of that removal order. The court also found that there is no miscarriage-of-justice exception to the statutory prohibition on reopening a reinstated removal order.
The full text of Gutierrez-Gutierrez v. Garland can be found here:
The Eighth Circuit has determined that a conviction for illegal reentry, on its own, is not an aggravated felony. Rather, a court must perform an independent inquiry into whether the prior removal order was based on an aggravated felony conviction.
The full text of Lopez Chavez v. Garland can be found here:
The Eighth Circuit has determined that because khat includes a substance listed in the federal drug schedules, a conviction for possession of khat is a controlled substance violation.
The full text of Ahmed v. Garland can be found here:
The Eighth Circuit has determined that an Iowa drug statute is divisible between marijuana offenses and other drug offenses because it prescribes a different punishment for marijuana offenses than offenses related to other substances. Though the court did not have to reach the issue, the rationale suggests that the statute may not be divisible between other substances.
The full text of Aquino Arroyo v. Garland can be found here:
The petitioner was convicted of robbery in Texas and charged with deportability for a crime involving moral turpitude. He readjusted status with a waiver, and subsequently, violated probation, resulting in a prison sentence. The Department of Homeland Security then charged him with deportability for an aggravated felony. The Fifth Circuit found that res judicata did not apply because the Department of Homeland Security could not have brought the aggravated felony charge in the first proceeding.
The full text of Cruz Rodriguez v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/19/19-60456-CV0.pdf
The Fifth Circuit has determined that Texas Health & Safety Code Penalty Group 2A contains at least one substance not listed in the federal drug statutes. Moreover, the court found no case law or statutory indicators that the substances are elements of the offense, and thus, concluded that the statute is indivisible. The court remanded for the agency to determine if there is a realistic probability that Texas prosecutes offenses involving the drug not listed in the federal schedules.
The full text of Alejos-Perez v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/19/19-60256-CV0.pdf
The Third Circuit has determined that a full and unconditional pardon from a governor does not eliminate deportability for a controlled substance violation.
The full text of Aristy-Rosa v. Attorney General can be found here:
The California Court of Appeals, Fourth Appellate District has reversed the denial of a motion to vacate under Penal Code section 1473.7, even though the defendant signed a plea form advising him that he would be deported, excluded from admission, and denied naturalization. In this case, the original defense counsel had negotiated an immigration safe plea, but he transferred offices before the case was finished. The defendant took the plea with the second attorney, and before he could be sentenced pursuant to the deal negotiated by his first attorney, he was arrested, convicted, and imprisoned in another county. The second attorney, in his absence, accepted a concurrent sentence on the original conviction, which converted the conviction from an immigration-safe plea into an aggravated felony. As a result of the advice provided by the original defense counsel that the plea was immigration safe, and the failure of the second attorney to clearly explain that the concurrent sentence would have adverse immigration consequences, the appellate court concluded that the defendant did not meaningfully understand the consequences of the conviction.
The full text of People v. Rodriguez can be found here:
