Ninth Circuit Recognizes Impact of Trauma on Testimony

The Ninth Circuit has recognized the impact that the trauma of physical and sexual assault can have on the ability of an asylum applicant to accurately estimate the length of time of certain events in her narrative of persecution. “Ms. Munyuh set forth a reasonable and plausible explanation for the discrepancy between the four-to-five-kilometer estimate in her written declaration and the timeline of her account—namely, that she had been ‘brutally attacked, beaten multiple times, [and] raped within a span of less than about 24 hours.’ It is reasonable and plausible that the trauma caused by multiple physical and sexual assaults would impair Ms. Munyuh’s focus at the time on peripheral matters and therefore on her memory of those matters.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/25/19-72890.pdf

Ninth Circuit Finds that Non-Citizen has Right to Counsel During Reasonable Fear Review

The Ninth Circuit has determined that a non-citizen subject to a reinstatement order has a right to counsel in a reasonable fear review with an Immigration Judge. However, that right must be taken in the context of the regulation that requires that reasonable fear reviews be conducted within ten days of the issuance of the Asylum Officer’s negative reasonable determination. Thus, the agency did not deny the petitioner his right to to counsel when he requested time to find an attorney at his hearing, which was scheduled on Day 8 of 10.

The full text of Orozco-Lopez v. Garland and Gonzalez Martinez v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/25/20-70127.pdf

Ninth Circuit Recognizes that Female Nurses May be a PSG

The Ninth Circuit has determined that “female nurses” may be a particular social group for asylum purposes. “In contrast to Acosta, Plancarte cannot avoid compulsion by the cartel simply by changing jobs, because even if she ceased employment as a nurse, she would still be a nurse. Plancarte has received specialized medical training and has a professional license as a nurse. The cartel targeted Plancarte precisely because of her specialized nursing skills. It threatened her and her family with torture and death to force her to use those skills to provide medical treatment to the cartel.”

The full text of Plancarte Sauceda v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/20/19-73312.pdf

An amended opinion can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/01/14/19-73312.pdf

Ninth Circuit Finds that CA Joyriding Conviction is not Aggravated Felony

The Ninth Circuit has determined that a conviction under section 10851 of the CA Vehicle Code (taking a vehicle without consent, commonly referred to as “joyriding”) is overbroad and indivisible when compared to the generic definition of a theft offense. The court overruled its prior finding that the statute is divisible in Duenas-Alvarez.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/18/18-72922.pdf

Ninth Circuit Relies on Interpol Red Notice and Arrest Warrant to Apply Serious Nonpolitical Crime Bar

The Ninth Circuit has determined that an Interpol Red Notice, a Salvadoran arrest warrant, and the petitioner’s incredible testimony were sufficient to demonstrate serious reasons to believe that he had committed a serious nonpolitical crime.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/20-71839.pdf

Ninth Circuit Finds no Jurisdiction to Review Constitutional Claims in Expedited Removal Proceedings

The Ninth Circuit has determined that it has no jurisdiction to determine if a non-citizen was deprived of his right to counsel in a credible fear review because it lacks the authority to review constitutional claims related to expedited removal proceedings.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/20-70115.pdf

An amended opinion was issued on November 9, 2021, and can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/09/20-70115.pdf

Ninth Circuit Finds that Adjustment Applicant was not Given Adequate Notice of Possible False Claim to US Citizenship Inadmissibility Problem

The Ninth Circuit has determined that an adjustment of status applicant was not given adequate notice that his past claims to citizenship could render him inadmissible and ineligible for permanent residence.

“We hold that Flores-Rodriguez was not put on notice that his alleged false claim of citizenship would be at issue in his 2014 hearing.” “At Flores-Rodriguez’s 2012 preliminary hearing, the IJ discussed false claims of citizenship only in the context of a possible DHS charge, telling him that if such a charge were sustained, he would not be eligible for adjustment of status. At Flores-Rodriguez’s 2013 preliminary hearing—during which the final IJ hearing was scheduled—the issue was not raised at all. In sum, by the time Flores-Rodriguez had his final hearing in 2014, his alleged false claim of citizenship had not been raised by the IJ for two years, and the last time it had been discussed the IJ implied it would only be dispositive if DHS sustained a false claim of citizenship charge against him. DHS never even brought such a charge.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/19-70177.pdf

Ninth Circuit Indicates Possibility that "Imputed Gang Members" may be PSG

The Ninth Circuit has remanded a case involving the proposed social group of imputed gang members. The court noted that its prior concerns that Congress would not have wanted to reward gang members for their behavior by recognizing them as a social group for asylum purposes do not apply when the membership is imputed only (i.e., based on an erroneous belief the persecutors that the applicant is a gang member).

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/05/19-71445.pdf

Ninth Circuit Finds HI 4th Degree Theft not CIMT

The Ninth Circuit has determined that a Hawaii conviction for fourth degree theft is not a crime involving moral turpitude because it does not require the defendant to intend to permanently deprive or substantially erode the owner’s property interests. The court further determined that the statute is indivisible.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/02/19-73099.pdf

Ninth Circuit Rejects Derivative Citizenship Claim

The Ninth Circuit has rejected the derivative citizenship claim of a lawful permanent resident whose father naturalized before his 18th birthday. In doing so, the court noted that even assuming the petitioner’s parents entered into a de facto union in Peru (roughly the equivalent of a common law marriage), there was no proof of a legal separation between his parents. “Nothing about the Peruvian court’s determination that Hernandez had abandoned the family and lost her parental rights says anything about the type of relationship that existed between her and Walter, much less that it had been formally terminated.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/02/15-73085.pdf

Eighth Circuit Finds that Mental Health is not Relevant in Drug Trafficking PSC Analysis unless Presumption of PSC is Overcome

The Eighth Circuit has determined that the agency need not consider an applicant’s mental health in its particularly serious crime analysis when invoking the presumption in Matter of Y-L- that drug trafficking crimes are particularly serious crimes, unless the applicant first overcomes that presumption.

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

https://ecf.ca8.uscourts.gov/opndir/21/08/202355P.pdf

Eighth Circuit finds that "Mexican Mothers who Refuse to Work for the Cartel" is not Cognizable PSG

The Eighth Circuit has determined that proposed group of “Mexican mothers who refuse to work for the cartel” is not sufficiently particularized or socially distinct.

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

https://ecf.ca8.uscourts.gov/opndir/21/08/202417P.pdf

Eighth Circuit Remands Case for Application of Sanchez Sosa Factors

The Eighth Circuit vacated the agency’s denial of a motion to reopen and remand to seek a continuance in light of a U visa application filed during the pendency of the appeal. The court noted that the Board can either apply the Sanchez Sosa factors or remand the case to an Immigration Judge to do so.

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

https://ecf.ca8.uscourts.gov/opndir/21/08/202200P.pdf

Eighth Circuit Finds that TX Aggravated Assault is not Violent Felony

The Eighth Circuit has determined that a Texas conviction for aggravated assault is not a violent felony because it encompasses reckless conduct. “Everyone agrees that the Texas law in question defines a single, indivisible offense that can be committed under any of three mental states—intentionally, knowingly, or recklessly.”

The full text of United States v. Hoxworth can be found here: https://ecf.ca8.uscourts.gov/opndir/21/08/191562P.pdf

Eighth Circuit Construes Non-Per Se PSC Definition

The Eighth Circuit has determined that a crime which is not a per se particularly serious crime must be of the type that shows that the applicant is a danger to the community and must be “excessive in quality or extent to some unusual degree.”

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

https://ecf.ca8.uscourts.gov/opndir/21/08/202140P.pdf

Sixth Circuit Finds TN Burglary to be Overboad

The Sixth Circuit has determined that Tennessee’s first-degree burglary statute is overbroad as compared to the generic definition of burglary because it includes breaking into a container (i.e., a drawer) after a lawful entry.

The full text of Cartwright v. United States can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0203p-06.pdf

Fifth Circuit Finds it Lacks Jurisdiction to Review Finding that Applicant did not Make Out Prima Facie Hardship Case for Cancellation

The Fifth Circuit has determined that it does not have jurisdiction to review the agency’s denial of a motion to reopen based on the movant’s failure to make a prima facie showing of the required hardship for cancellation of removal. “The BIA’s denial of her motion based on its conclusion that she failed to establish a prima facie case for the underlying relief of cancellation of removal is tantamount to a discretionary decision on the merits barred by § 1252(a)(2)(B)(i).”

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

https://www.ca5.uscourts.gov/opinions/pub/19/19-60645-CV0.pdf

UPDATE: The court, on rehearing, has issued an amended opinion, withdrawing its jurisdictional analysis, but finding that Parada-Orellana did not make a prima facie showing of hardship:

https://www.ca5.uscourts.gov/opinions/pub/19/19-60645-CV1.pdf

Fifth Circuit Finds that Motion Based on Change in Law was Properly Construed only as Motion for Reconsideration

The Fifth Circuit has determined that a motion filed based on a change in law (namely, the Supreme Court’s decision in Dimaya v. Sessions) was properly construed as only a motion to reconsider, and not a motion to reopen. As such, the 30-day filing deadline was properly applied by the agency (starting from the date the petitioner learned of the Dimaya decision), instead of the longer 90-day deadline applicable to motions to reopen.

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

https://www.ca5.uscourts.gov/opinions/pub/19/19-60274-CV0.pdf

The Fourth Circuit Rejects Former Gang Members as PSG

The Fourth Circuit has rejected a claim for asylum by a former gang member, affirming the agency’s determination that former gang members are not a cognizable particular social group. The court distinguished the agency’s treatment of the record in this case from the agency’s treatment of the record in Oliva.

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

https://www.ca4.uscourts.gov/Opinions/201034.P.pdf

Third Circuit Requires that Asylum Applicant be Given Opportunity to Express Language of Preference

The Third Circuit has determined that an Immigration Judge must give an asylum applicant the opportunity to identify the language they prefer to proceed in, and if that language is anything other than English, to secure an interpreter for the applicant. Accordingly, the court remanded a motion to reopen filed by a Cameroonian asylum seeker whose native language was Pidgin English, and who was not provided with an interpreter during his removal proceedings.

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

https://www2.ca3.uscourts.gov/opinarch/191408p.pdf