Tenth Circuit Declines to Reopen Reinstated Order

The Tenth Circuit has affirmed that the agency lacks authority to reopen a reinstated removal order. In this case, the petitioner was a lawful permanent resident who was ordered removed (and physically removed) due to a felony animal cruelty conviction. After his removal, a state court vacated the conviction due to ineffective assistance of counsel, and reinstated the original charges. The petitioner sought reopening of his removal order, which the Immigration Judge denied because the criminal charges were still reinstated and remained pending. The petitioner then unlawfully reentered the United States, and the Department of Homeland Security reinstated his removal order. Subsequently, he pled to misdemeanor animal cruelty, which was not a deportable offense, and filed a second motion to reopen, which the agency declined to grant because his removal order had already been reinstated. The Tenth Circuit agreed that the reinstatement barred reopening, and that the petitioner had forfeited his right to reopening by reentering illegally. Moreover, the court declined to find a “gross miscarriage of justice” exception to the bar to reopening reinstated orders, and further opined that even if such an exception existed, it would not apply to this case, because the petitioner’s conviction was vacated after he was removed. Finally, the court declined to extend nunc pro tunc relief with respect to the first motion to reopen, which was filed before the petitioner reentered the United States, finding that nunc pro tunc relief is an equitable remedy, which was barred by the petitioner’s “unclean hands.”

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

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110613259.pdf

Ninth Circuit Remands Motion to Reopen to Consider Heightened Risk to Evangelical Christians in Indonesia

The Ninth Circuit has remanded a motion to reopen based on changed country conditions because the agency failed to differentiate the heightened risk of harm to evangelical Christians in Indonesia - who proselytize as part of their faith - from the risk of harm to other non-evangelical Christians.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/23/18-72548.pdf

Ninth Circuit Rejects Equitable Tolling Argument

In a very brief analysis by Judge Paez, the Ninth Circuit rejected the equitable tolling argument of a former lawful permanent resident ordered removed in 2013 based on a finding that he had been convicted of a crime of violence under 18 USC 16(b). In 2015, the Ninth Circuit found that 16(b) was unconstitutionally vague, and the Supreme Court reached the same conclusion in April 2018. The petitioner filed a motion to reconsider his removal order in July 2018, and requested equitable tolling in light of the recent Supreme Court decision, which he became aware of in June 2018. The Ninth Circuit concluded that the agency did not abuse its discretion in denying the motion because the petitioner did not present any evidence that he acted diligently between 2013, when he was ordered removed, and July 2018, when he filed his motion.

Judge Van Dyke wrote a much longer concurrence agreeing with the outcome of Judge Paez’s two-page analysis.

Judge Korman wrote a strong dissent, finding that the petitioner acted with diligence by filing his motion less than two months after he learned about the Supreme Court’s Dimaya decision from his former criminal defense attorney.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/18/19-72007.pdf

Ninth Circuit Dismisses Attack on Reinstatement Order Based on Post-Removal Vacatur of Conviction

The Ninth Circuit has held that a vacatur of a criminal conviction after a petitioner has been physically removed from the United States does not demonstrate a gross miscarriage of justice in the underlying removal proceedings, such that he can challenge the reinstatement of a removal order premised on the vacated conviction. The gross miscarriage of justice standard looks at whether the removal order was valid at the time it was issued and at the time it was executed. Thus, any post-execution developments, such as vacatur of the conviction that formed the basis of the removal order, do not establish a gross miscarriage of justice. The court further noted that the petition was found deportable for having entered the United States without inspection, which provided a separate basis from the conviction for deporting him.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/12/18-70329.pdf

Sixth Circuit Finds Changed Country Conditions in DRC Due to New Political Party in Power

The Sixth Circuit has affirmed the agency’s finding that a member of UDPS (formerly, the primary opposition party in the Democratic Republic of the Congo) no longer qualified for asylum because the current president of DRC is a member of UDPS. This change of the party in power was sufficient to rebut the presumption of future persecution raised by the existence of past persecution.

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

opn.ca6.uscourts.gov/opinions.pdf/21a0269p-06.pdf

Sixth Circuit Remands Gender Violence Asylum Claim

The Sixth Circuit has remanded a claim for asylum based on membership in the particular social group of “El Salvadorian women of childbearing age in domestic partnerships.” The court noted that the abrogation of Matter of A-B- by the Attorney General was a significant change in agency case law, warranting reconsideration of the viability of the proposed group.

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

https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0271p-06.pdf

Fifth Circuit Remands CAT Claim for Failure to Consider Country Conditions Evidence

The Fifth Circuit has remanded a claim for protection under the Convention Against Torture, emphasizing the agency’s obligation to consider country conditions evidence even if the applicant has not provided credible testimony.

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

https://www.ca5.uscourts.gov/opinions/pub/19/19-60760-CV0.pdf

Fifth Circuit Finds that OSC not Required to Included Time and Location of Deportation Hearing

The Fifth Circuit has determined that the statute did not require Orders to Show Cause to include the time and location of a first deportation hearing, and thus, the lack of this info does not require reopening an in absentia deportation order.

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

https://www.ca5.uscourts.gov/opinions/pub/20/20-60714-CV0.pdf

Fifth Circuit Upholds In Absentia Order Despite Deficient NTA

The Fifth Circuit has affirmed the denial of a motion to reopen an in absentia removal order where the Notice to Appear was missing the time and date of the first removal hearing because the petitioner provided a deficient mailing address to immigration authorities. The court distinguished its recent decision in Rodriguez, finding that the petitioner in the instant matter forfeited his right to notice of his removal proceeding by providing a deficient mailing address.

The decision in Spagnol-Bastos v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/20/20-60139-CV0.pdf

Fourth Circuit Finds EAJA Fees Unavailable to Plaintiff in Delayed Naturalization Case

The Fourth Circuit has determined that the plaintiff in a delayed naturalization action is not entitled to Equal Access to Justice (EAJA) fees when the District Court remanded the application to USCIS with instructions to adjudicate it within a specified period, and the agency completed adjudication within that period of time. In such circumstances, the plaintiff was not a prevailing party for EAJA purposes.

The full text of Ge v. USCIS can be found here:

https://www.ca4.uscourts.gov/opinions/201582.P.pdf

Fourth Circuit Finds that VA Conviction for Accessory after the Fact is an Aggravated Felony

The Fourth Circuit has determined that a Virginia conviction for accessory after the fact is an obstruction of justice aggravated felony. In so doing, the court deferred to the agency’s definition of obstruction of justice, which does not require an ongoing investigation into the crime.

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

https://www.ca4.uscourts.gov/opinions/201363.P.pdf

Third Circuit Rejects Guatemalan Women as a PSG

The Third Circuit has determined that “Guatemala women” do not qualify as a cognizable particular social group for asylum and withholding of removal purposes because the proposed group lacks the requisite particularity. The court also recognized that the Notice to Appear in the case was lacking the time and date of the first removal hearing, which constituted a claims processing rule violation. However, the court determined that equitable considerations supported the agency’s refusal to terminate proceedings despite the rule violation.

The full text of Chavez-Chilel v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/211180p.pdf

Second Circuit Finds that Revocation of I-140 is Discretionary Determination

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:

https://www.ca2.uscourts.gov/decisions/isysquery/0fd4a320-a95a-440d-b66d-c8e154bc7a03/14/doc/21-632_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/0fd4a320-a95a-440d-b66d-c8e154bc7a03/14/hilite/

Second Circuit Finds that Stop-Time Rule Applies to OSCs Missing Date and Time of First Hearing

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:

https://www.ca2.uscourts.gov/decisions/isysquery/0fd4a320-a95a-440d-b66d-c8e154bc7a03/5/doc/19-1911_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/0fd4a320-a95a-440d-b66d-c8e154bc7a03/5/hilite/

First Circuit Remands Particularly Serious Crime Finding

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:

http://media.ca1.uscourts.gov/pdf.opinions/20-1711P-01A.pdf

Fourth Circuit Finds that VA Eluding Statute is CIMT

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

First Circuit Rejects Bright-Line Constitutional Requirement of Prolonged Detention Bond Hearings

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:

http://media.ca1.uscourts.gov/pdf.opinions/19-1787P-01A.pdf

Fourth Appellate District Construes Timeliness Requirements for 1473.7

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:

http://sos.metnews.com/sos.cgi?1121//D077894N

Fourth Appellate District Reaffirms Denial of 1473.7 Appeal in Light of Vivar

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:

http://sos.metnews.com/sos.cgi?1021//E072782A

BIA Finds that Defective NTA Does not Stop Time for Voluntary Departure

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:

https://www.justice.gov/eoir/page/file/1446396/download