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New Case Law
The Second Circuit has determined that the agency’s revocation of an I-140 based on doubts about the petitioning employer’s ability to pay and the qualifications of the beneficiary is a discretionary determination, which a federal court lacks jurisdiction to review.
The full text of Nouritajer v. Jaddou can be found here:
The Second Circuit has concluded that Orders to Show Cause that were missing the time and location information of the first deportation hearing still triggered the stop-time provision.
The full text of Jiang v. Garland can be found here:
The First Circuit has remanded a case in which the Immigration Judge concluded that the petitioner was ineligible for withholding of removal due to a drug trafficking conviction without analyzing whether the presumption arising in Matter of Y-L- had been rebutted. In addition, the petitioner argued that the Y-L- is effectively treated as a conclusion that all drug trafficking convictions are particularly serious crimes, as opposed to a rebuttable presumption. The court noted that the government had not presented a single case in which the agency found someone had rebutted the presumption, and thus, indicated the government could supplement the record on remand with any cases in which the agency found the presumption had been rebutted.
The full text of Decarvalho v. Garland can be found here:
The Fourth Circuit has determined that a Virginia felony conviction for eluding is a crime involving moral turpitude because it involves a mens rea (willful and wanton) that is higher than criminal negligence and reprehensible conduct (vehicular flight from law enforcement). In so doing, the court rejected an argument that the definition of a crime involving moral turpitude is unconstitutionally vague or violates the nondelegation doctrine.
The full text of Canales Granados v. Garland can be found here:
https://www.ca4.uscourts.gov/opinions/202028.P.pdf
The First Circuit has determined that not all persons detained under section 1226(c) have a constitutional right to a hearing concerning the reasonableness of their continued detention after they have been detained longer than six months, find that such analyses must be conducted on a case-by-case basis.
The full text of Reid v. Donelan can be found here:
The Fourth Appellate District has determined that the timeliness of a motion to vacate filed by individual whose conviction pre-dates Penal Code section 1473.7 should be measured, in part, by when the individual became aware of the existence of 1473.7 relief.
“By explaining the scope of the trial court’s discretion under the amended statute, Perez clarified that “reasonable diligence” is not a timeliness requirement for section 1473.7 motions made under subdivision (a)(1), but rather a condition that, if present, requires the court to grant meritorious motions. Conversely, if the condition is lacking, the court is then empowered to exercise its discretion to either consider the merits or deny the motion on timeliness grounds. Here, it is not clear whether the trial court understood that it was making a discretionary decision when it denied Alatorre’s motion as untimely. But of course, it did not have the benefit of Perez’s statutory construction at the time. Nor did it give a clear indication—as the trial court in Perez did—that it would have granted the motion if it understood that it had the discretion to do so. Regardless, the heart of the trial court’s evaluation of timeliness in this case lies elsewhere and requires that we address an issue Perez did not reach: how to analyze whether a petitioner exercised reasonable diligence in cases where the petitioner’s triggering events predate section 1473.7.”
“What event in Alatorre’s life that occurred after section 1473.7 became effective would have given him “a reason to look for the existence of [new] legal grounds for relief” or, at a minimum, “put him on notice of the need to investigate[?]” “[W]e conclude it is most consistent with the meaning and purpose of section 1473.7 to evaluate reasonable diligence in cases where the petitioner’s triggering events predated the law by determining whether or when the petitioner had a reason to inquire about new legal grounds for relief, and assessing the reasonableness of the petitioner’s diligence from that point forward. Just as the triggering events in the statute provide petitioners still in the U.S. with notice of a fact (such as pending deportation), courts must look for an analogous event in the life of petitioners like Alatorre that would provide notice of a change in the law that the petitioner would otherwise have no occasion to learn about (such as the availability of relief under section 1473.7).”
The full text of People v. Alatorre can be found here:
http://sos.metnews.com/sos.cgi?1021//D077894
The court subsequently issued two amended opinions, which indicated that the prosecution could not call a prior defense attorney to testify in contradiction to a defendant’s statements about whether counsel advised the defendant about the immigration consequences of a plea because a motion under 1473.7 does not require a showing of ineffective assistance of counsel.
The first set of modifications can be found here:
http://sos.metnews.com/sos.cgi?1121//D077894M
The second set of modifications can be found here:
The Fourth Appellate District has reaffirmed its denial of an appeal of a 1473.7 motion, even after considering the new standards laid out by the California Supreme Court in People v. Vivar.
“Here, with regard to the section 273.5 felony domestic violence charge, no immigration-neutral charge existed. Nor did defendant request or even explore the possibility of an immigration-neutral charge as to this offense. He did plead to, and was convicted on, an apparently immigration-neutral felony, namely, the section 273a child cruelty charge. The record shows no attempt to negotiate a plea leveraging the immigration-neutral count by admitting, for example, solely the section 273a count in place of the section 273.5 count requiring mandatory deportation. Neither does the petition suggest the possibility of having done so. Nor is there any indication whatsoever that such a suggestion would have been acceptable in negotiations with the People or when presented to the trial court. Furthermore, defendant presents no evidence that he ever participated in contemporaneous discussions or negotiations for immigration-neutral charges with the People, or even that he discussed the possibility of immigration consequences⸺other than described below⸺with his counsel. Absent any such record evidence, defendant simply claimed in his declaration, without elaboration or explanation of his basis for knowledge, that counsel did not “explore any immigration neutral charges.” However, “a defendant’s self-serving statement—after trial, conviction,and sentence—that with competent advice he or she would have accepted [or rejected] a proffered plea bargain, is insufficient in and of itself to sustain the defendant’s burden of proof as to prejudice, and must be corroborated independently by objective evidence.”
The full text of People v. Bravo can be found here:
The Board of Immigration Appeals has determined that service of a Notice to Appear that is missing the time and date of the first removal hearing does not stop the accrual of physical presence for voluntary departure, even if the respondent is subsequently served with a notice of hearing containing the missing information.
The full text of Matter of M-F-O- can be found here:
The Board of Immigration Appeals has determined that an Immigration Judge can examine the bona fides of a marriage during an adjustment of status hearing even if the couple already has an approved I-130.
The full text of Matter of Kagumbas can be found here:
The Eleventh Circuit has determined that the doctrine of consular nonreviewability does not deprive a federal court of subject matter jurisdiction over a challenge to a visa denial. However, the court also determined that the government is not required to proffer a factual predicate for a visa denial if the consular officer cites a ground of inadmissibility that specifies discrete factual predicates.
The full text of Del Valle v. Secretary of State can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/201914889.pdf
The Ninth Circuit has determined that a Washington conviction for first-degree assault is a crime of violence. It distinguished its prior case law on the overbreadth of Washington’s accomplice liability, finding it inapplicable to the elements-based definition of a crime of violence.
The full text of Amaya v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/10/07/18-70060.pdf
The Ninth Circuit has determined that an asylum seeker’s right to counsel was violated when the judge refused to continue a merits hearing that pro bono counsel could not be at due to a conflicting hearing. The decision has a good analysis of the difficulties of obtaining counsel for non-English speaking detainees.
The full decision in Usubakunov v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/01/18-72974.pdf
The Ninth Circuit has determined that the issuance of a final removal order (after service of a defective Notice to Appear) does not trigger the stop-time rule for purposes of cancellation of removal.
The full text of Cantor v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/03/19-73085.pdf
The Second Circuit has determined that a Connecticut conviction for possession intent to sell/transportation/manufacture/offer a controlled substance is an aggravated felony and a controlled substance violation.
The full text of Chery v. Garland can be found here:
The Seventh Circuit has determined that when evaluating whether an applicant for protection under the Convention Against Torture has demonstrated a clear probability of torture, the agency must evaluate the aggregate risk of torture. “[W]e adopt the aggregate risk approach for the determination of substantial risk and hold that the agency may address risk factors individually so long as it considers all sources of and reasons for risk cumulatively to determine whether there is a substantial risk of torture,”
The full text of Nyandwi v. Garland can be found here:
The Fifth Circuit has reaffirmed that “women who are unable to leave their domestic relationships” are not a cognizable particular social group, even under the standard articulated in Matter of A-R-C-G-.
The full text of Jaco v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/20/20-60081-CV0.pdf
The Fourth Circuit has concluded that Immigration Judges have the inherent authority to terminate removal proceedings, and that the Attorney General’s contrary decision in Matter of S-O-G- & F-D-B- is not entitled to deference.
The full text of Chavez Gonzalez v. Garland can be found here: https://www.ca4.uscourts.gov/Opinions/201924.P.pdf
The Third Circuit has reinstated an Immigration Judge’s grant of protection under the Convention Against Torture to a Guatemalan woman fleeing gender violence. In so doing, the court noted that the Board of Immigration Appeals erroneously conducted a de novo review of the Judge’s factual findings, instead of reviewing them for clear error.
The full text of Arreaga Bravo v. Attorney General can be found here
https://www2.ca3.uscourts.gov/opinarch/203300p.pdf
A clarified opinion can be found here:
The First Circuit has remanded a petition for the Board of Immigration Appeals (BIA) to determine if the 30-day filing deadline for a BIA appeal should be equitably tolled for a medically vulnerable detainee whose appeal was filed during the COVID pandemic.
The full text of James v. Garland can be found here:
The Board of Immigration Appeals has determined that a respondent who enters the United States as a refugee, adjusts status one year later retroactive to the date of admission, and is then convicted of an aggravated felony, is not statutorily barred from seeking a 212(h) waiver.
The full text of Matter of N-V-G- can be found here:
