BIA Construes Changed Circumstances Exception to Asylum Filing Deadline

The Board of Immigration Appeals has determined that an applicant who merely continues an activity in the United States that is substantially similar to the activity from which an initial claim of past persecution is alleged and that does not significantly increase the risk of future harm has not established changed circumstances that would excuse an untimely asylum application.

“The activity the respondent engaged in while in the United States— emailing Christian proselytizing messages to people in China—is substantially similar to the actions he undertook in China and represents a continuation of those religious activities without a significant change. The fact that the respondent continued his proselytizing activities after he entered the United States (albeit through a different medium) does not support a finding of changed circumstances since it was this very activity (proselytizing) in China that led him to leave his country originally. The respondent does not allege that he became involved in new activities related to Christianity in the United States; nor does his activity in this country raise a claim for asylum under a separate protected ground or on the basis of a newly articulated claim of future persecution. On the contrary, the respondent’s present claim remains premised on the same fear of the Chinese authorities he possessed prior to coming to the United States, as well as the same protected ground, and therefore does not adequately set forth a change in the respondent’s particular circumstances. Further, while the emails the respondent distributed may have generated renewed interest from the authorities, the record does not reflect that the respondent’s risk of persecution in China increased as a result of his email correspondence such that his claim to asylum, based on his activity in the United States, is significantly changed from his claim of past harm. In essence, it is the same claim he could have made during the 1-year period after he entered the United States.”

The full text of Matter of D-G-C- can be found here:

https://www.justice.gov/eoir/page/file/1401876/download

BIA Applies Circumstance Specific Analysis to SIJS Waiver

The Board of Immigration Appeals has confirmed that INA section 245(h)(2)(B) can be used to waive inadmissibility related to a single offense of possession of less than 30 grams of marijuana. The Board indicated that the circumstance specific approach should be used to determine the amount of marijuana at issue.

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

https://www.justice.gov/eoir/page/file/1405696/download

BIA Permits Rescission of In Absentia when Respondent was Late to Court Due to Severe Inclement Weather

The Board of Immigration Appeals has determined that an Immigration Judge has discretion to rescind an in absentia removal order when the respondent was late for her court hearing to severe inclement weather.

“In determining whether an alien has established exceptional circumstances, the “totality of the circumstances pertaining to the alien’s case should be considered. How late the alien arrives for her scheduled court appearance is a significant factor to consider, along with the reason(s) for her tardiness, in the totality of the circumstances. The totality of the circumstances approach may also take into account any other factors relevant to the alien’s individual case. For example, an alien’s young age may be relevant where there are multiple impediments to attending the removal hearing. Other factors, such as prior attendance at hearings, eligibility for relief from removal, and promptness in filing the motion to reopen may shed light on whether the alien intended to appear on time or otherwise had an incentive to do so.”

“In Matter of S-A-, we did not create a per se rule that traffic conditions cannot be an acceptable reason for a tardy appearance at a hearing. Instead, this Board held that an alien’s uncorroborated general statements will generally be insufficient to meet the burden of proof to establish reasonable cause for a late appearance. We reaffirm this holding. We also take this opportunity to clarify and extend the evidentiary framework in Matter of S-A- to proceedings falling under the exceptional circumstances standard, because this Board has not yet addressed this standard.“

“Pursuant to our de novo review, we conclude that the female respondent has established exceptional circumstances for her tardy appearance under the totality of the circumstances. Where an alien appears late to a removal hearing as a result of weather and traffic conditions, he or she may establish exceptional circumstances that would warrant reopening the removal proceedings where the extent of the tardiness was reasonable given the cause of the delay, the circumstances causing the tardiness were appropriately exceptional on a case-by-case basis, the weather and traffic conditions were not foreseeable, and the alien provided sufficient documentation corroborating the cause of the tardiness. Other factors, such as any prior affirmative application for relief, previous attendance at Immigration Court hearings, and other evidence indicating that the alien intended to appear at the hearing, may support an exceptional circumstances claim.”

“On this record, we conclude that she presented appropriately exceptional circumstances for her tardiness. As the female respondent does not drive, she hired a professional driver, upon whom she relied to arrive at the courtroom on time. Despite this planning, she was tardy because of a snow storm, which caused multiple accidents and severe traffic on several major thoroughfares in Ohio on the morning of her hearing. Moreover, weather reports indicated that the temperature was lower than usual for the time of year. These severe weather and traffic conditions are distinguishable from the ordinary or foreseeable traffic delays at issue in Matter of S-A-. Further, the female respondent’s corroborating information—including the affidavits and the weather and traffic reports—provided sufficient details documenting the reasons for her tardiness.”

The full text of Matter of S-L-H- & L-B-L can be found here:

https://www.justice.gov/eoir/page/file/1408006/download

Eleventh Circuit Remands Discretionary Denial of Asylum

The Eleventh Circuit has remanded a discretionary denial of asylum, where the petitioner as granted withholding of removal, and where the Immigration Judge failed to reconsider the denial of asylum, including the possibility of family reunification.

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

https://media.ca11.uscourts.gov/opinions/pub/files/201912019.pdf

Ninth Circuit Permits DHS to Parole Returning LPR into US Pending Resolution of Criminal Charges

The Ninth Circuit has determined that DHS may parole in a lawful permanent resident (LPR) who has pending criminal charges, if a conviction under those charges would render the LPR inadmissible. In so doing, the Court deferred to the Board of Immigration Appeals’ decision in Matter of Felix Valenzuela.

The full text of Vazquez Romero v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/28/15-72947.pdf

Ninth Circuit Finds that Departure Bar does not Apply to Sua Sponte Motions to Reopen

The Ninth Circuit has determined that the regulatory departure bar does not bar the agency from sua sponte reopening a removal order.

The full text of Balerio Rubalcaba v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/02/17-70845.pdf

Ninth Circuit Reverses CAT Denial

The Ninth Circuit has reversed the Board’s denial of CAT protection to an indigenous Mexican woman, finding that the Board reviewed the judge’s factual findings de novo, despite its invocation of the clear error standard. “The BIA disagreed with the IJ’s view of the evidence. But its only explanation of why the IJ’s decision was illogical, implausible, or without support was that ‘the IJ’ did not acknowledge that the Mexican judicial system took appropriate steps to correct any past due process errors committed by the officers of the Office of Anti-kidnapping and Extortions, that the respondent reported the torture and was not subsequently harmed or threatened while in custody for nearly 8 months, and that other members of her family have remained unharmed in Mexico.’ The BIA did not explain how these alleged errors showed lack of logic, plausibility, or support in the record on the part of the IJ. The BIA’s reasoning is therefore insufficient to demonstrate that the BIA engaged in clear error review.”

The full text of Soto-Soto v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/11/20-70587.pdf

Ninth Circuit Permits Changed Country Conditions Argument Based on Change in Personal Circumstances Outside Applicant's Control

The Ninth Circuit has sustained the appeal of an asylum applicant who moved to reopen her proceedings after her abusive husband was deported to India, and her in-laws threatened to kill her if she returned. The court emphasized that a change in personal circumstances completely outside the applicant’s control can support reopening. The court also noted that increasing violence against women (especially widows) in India supported reopening of the case.

The full text of Kaur v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/21/18-72786.pdf

Ninth Circuit Defers to Matter of Davey

The Ninth Circuit has deferred to the Board of Immigration Appeals’ decision in Matter of Davey and determined that the circumstance specific approach applies to the personal use exception for marijuana-related deportability.

The full text of Bogle v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/23/19-72290.pdf

An amended opinion can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/12/29/19-72290.pdf

Seventh Circuit Finds No Prejudice Needed for Dismissal of Defective NTA

The Seventh Circuit has determined that a respondent who makes a timely objection to a defective Notice to Appear need not show prejudice from the defect in order to obtain dismissal of the proceedings.

The full text of Avila de la Rosa v. Garland can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D06-24/C:20-1956:J:Wood:aut:T:fnOp:N:2724341:S:0

Seventh Circuit Finds IL Burglary Statute Indivisible

The Seventh Circuit has determined that Illinois’ burglary statute is indivisible between an intent to commit a felony and a intent to commit theft.

The full text of Parzych v. Garland can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D06-28/C:20-2317:J:Brennan:aut:T:fnOp:N:2726021:S:0

Sixth Circuit Rejects Challenge to Visa Denial

The Sixth Circuit has determined that a lawful permanent resident has no recognized liberty interest in the issuance of an immigrant visa to his spouse.

The full text of Ahmed Baaghil v. Miller can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0134p-06.pdf

Sixth Circuit Restores Administrative Closure for Provisional Waiver Applicants

The Sixth Circuit has determined that administrative closure is available in removal proceedings to non-citizens eligible for provisional waivers of unlawful presence. Although the court had previously deferred to the Attorney General’s decision in Matter of Castro Tum, it limited its prior holding as inapplicable to provisional waiver applicants. “Administrative closure is ‘appropriate and necessary’ in this circumstance for the disposition of Garcia’s immigration case. Absent administrative closure, Garcia and other noncitizens in removal proceedings who are seeking permanent residency would be unable to apply for a provisional unlawful presence waiver despite the authorizing regulation.”

The full text of Garcia-Deleon v. Garland can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0127p-06.pdf

Fifth Circuit Finds that TX Conviction for Online Solicitation of a Minor is Crime of Child Abuse

The Fifth Circuit has determined that a Texas conviction for online solicitation of a minor is a crime of child abuse because it requires the knowing solicitation of a minor with the intention that the minor engage in a sex act. The court did not directly address the petitioner’s argument that the statute is overbroad because it defines a minor to include a person the defendant believes is under age 17.

The full text of Adeeko v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/19/19-60703-CV0.pdf

Fifth Circuit Finds Jurisdiction to Review Hardship in Cancellation Case

The Fifth Circuit has determined that whether an applicant for cancellation of removal can demonstrate exceptional and extremely unusual hardship to qualifying relatives is a mixed question of fact and law that the court has jurisdiction to review.

The full text of Guerrero Trejo v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/20/20-60353-CV0.pdf

Fourth Circuit Directs BIA to Consider Child's Age in Persecution Analysis

The Fourth Circuit, in an en banc decision, has determined that the agency must consider a child’s age when determining whether harm he suffered rose to the level of persecution. The court also acknowledged that an issue may be exhausted by virtue of the agency addressing it in its decision, even if not raised in detail in the briefing before the agency. Notably, the court also determined that the issue of government protection was raised in the Notice of Appeal to the Board, and did not have to find exhaustion based solely on the Board’s analysis of the issue.

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

https://www.ca4.uscourts.gov/opinions/191591A.P.pdf

Fourth Circuit Finds that VA Conviction for Unlawful Wounding is a Crime of Violence

The Fourth Circuit has determined that a Virginia conviction for unlawful wound is a crime of violence because it requires the infliction of bodily injury with intent to maim, disfigure, disable, or kill.

The full text of Moreno-Osorio v. Garland can be found here:

https://www.ca4.uscourts.gov/opinions/201035.P.pdf

Fourth Circuit Finds EAJA Fees not Available in Habeas Actions

The Fourth Circuit has determined that EAJA fees are not available in habeas actions challenging civil detention because such proceedings are not truly civil actions.

The full text of Obando-Segura can be found here:

https://www.ca4.uscourts.gov/Opinions/197736.P.pdf

Fourth Circuit Finds that IJs have a Duty to Develop the Record

The Fourth Circuit has determined that Immigration Judges have a duty to develop the record in all cases, and that duty is especially important when the applicant is unrepresented. “[I]n pro se cases, immigration judges’ duty to develop the record includes adequately explaining the hearing procedures and the relevant legal requirements in plain language. In particular, immigration judges must provide respondents with sufficient guidance as to how they may prove the elements of their claims—i.e., what evidence will demonstrate their eligibility for relief from deportation and in what form that evidence could be presented.” “[W]hat the aforesaid duty requires of an immigration judge inevitably depends on the particulars of each case—the respondent’s characteristics, such as age, education level, detention status, and immigration history; the applicable ground(s) of removability; and the form(s) of relief sought.”

The court further determined that the Board’s decision in Matter of W-Y-C- & H-O-B-, which requires asylum seekers to provide an exact delineation of proposed particular social group to the Immigration Judge at the penalty of forfeiting appellate review of any of social groups, should be applied to pro se applicants. “Requiring pro se asylum seekers to clearly indicate the exact delineation of their potential particular social groups would be completely inconsistent with immigration judges’ robust duty to help such applicants articulate a legally cognizable group.”

Finally, the court held that “that an immigration judge’s failure to satisfy his or her duty to fully develop the record is presumptively prejudicial, unless the error is plainly irrelevant to, or otherwise does not hinder in any way, the reviewing court’s ability to assess whether prejudice occurred.”

The full text of Arevalo Quintero v. Garland can be found here: https://www.ca4.uscourts.gov/Opinions/191904.P.pdf

Third Circuit Clarifies Standards for Changed Country Conditions MTRs

The Third Circuit has clarified the standards for reopening a removal proceeding based on changed country conditions, noting that there is both a materiality standard and a prima facie standard that must be met. “Materiality requires that applicant’s evidence address the deficiencies of her application, while the prima facie standard requires that the evidence be sufficient to show a reasonable likelihood that the statutory requirements have been met. When an IJ denies relief upon finding that an applicant has failed to meet a particular element of the claim, the applicant moving to reopen must present evidence directly addressing the element the IJ found deficient. The applicant’s evidence, taken as a whole, is not material if it merely strengthens the other elements of her claim without addressing the element the IJ found deficient. But if the applicant presents new evidence that addresses the IJ’s findings and was previously unavailable, she clears the procedural hurdle. Then, if the new, material evidence of changed country conditions can show a reasonable likelihood that the statutory requirements [for relief] have been satisfied, she clears the substantive hurdle.”

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

https://www2.ca3.uscourts.gov/opinarch/202107p.pdf