These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
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The Fourth Circuit has determined that the proposed particular social group comprises of “prosecution witnesses” lacks sufficient particularity. It should be noted that the petitioner in this matter reported criminal activity to the police, but did not actually testify in court.
The full text of Herrera-Martinez v. Garland can be found here:
The First Circuit has determined that a Rhode Island conviction for driving a car without the consent of the owner is not a theft offense aggravated felony because it encompasses de minimis conduct, such as joyriding. The court also confirmed that when the statute is facially overbroad, the petitioner does not need to point to an actual prosecution to establish a realistic probability that the statute criminalizes conduct outside the definition of the generic offense.
The full text of Da Graca v. Garland can be found here:
The First Circuit has found a record of sworn statement to be insufficiently reliable to sustain an adverse credibility determination where the statement listed a different name in the question and answer section than in the biographic information, listed an incorrect date of birth for the petitioner, and was signed by a border patrol officer months after the alleged encounter with the petitioner.
The full text of Menjivar Bonilla v. Garland can be found here:
The First Circuit has determined that the heightened discretionary standard for 209(c) waivers articulated in Matter of Jean is a reasonable interpretation of the statute by the Attorney General. The court also found that the phrase “violent or dangerous crime” is not unconstitutionally vague.
The full text of Peulic v. Garland can be found here:
Sitting en banc, the First Circuit has criticized the agency’s reliance on reports from a gang database used by the Boston Police Department, finding insufficient evidence that the documents used to label the petitioner as a gang member were actually probative of gang membership. The court noted that the reports from the database “show no more than a teenager engaged in quintessential teenage behavior -- hanging out with friends and classmates. These social encounters occurred in unremarkable neighborhood locations for this peer group: at a park, at school, in front of one teenager's home, on the benches in an empty stadium. The record lacks any evidence as to why assigning points for those interactions was a reliable means of determining gang membership. Certainly, the fact that the young men were all Hispanic does not permit an inference that any, or all, of them were gang members.”
The full text of Diaz Ortiz v. Garland can be found here:
http://media.ca1.uscourts.gov/pdf.opinions/19-1620P2-01A.pdf
My post about the original 3-judge panel decision in this case (which permitted reliance on the gang database documents) can be found here:
https://www.sabrinadamast.com/journal/2020/5/25/first-circuit-permits-reliance-on-gang-database
The Eleventh Circuit has determined that a petitioner who is on an order of supervision, subject to an unexecuted deportation order, and facing threatened deportation is “in custody” for the purpose of a habeas statute. The court also concluded that a petitioner who departed the United State prior to the issuance of a deportation order did not execute the order, and upon return to the United States, is subject to the execution of the order.
The full text of Argueta Romero v. Attorney General can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/202012487.pdf
The Ninth Circuit, sitting en banc, has determined that an inadmissible non-citizen who reenters the United States without obtaining consent from the US government is subject to reinstatement of a prior removal order, regardless of his manner of entry. In this case, the non-citizen was deported due to a drug conviction, which rendered him inadmissible at the time of his reentry through a port of entry.
“The record contains no indication that Tomczyk applied for, let alone received, a waiver of inadmissibility between his deportation in July 1990 and his reentry in July 1991, and Tomczyk does not argue otherwise. Nor does Tomczyk cite any authority suggesting that the INA permitted a border official to effectively grant such a waiver merely by allowing the vehicle in which he traveled to cross the border. Tomczyk’s qualifying conviction thus rendered him ineligible to be admitted to the United States at the time of his reentry. Because the law forbade Tomczyk from gaining admission into the United States in July 1991, we hold that his reentry was illegal under the plain meaning of § 1231(a)(5).”
The en banc decision in Tomczyk v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/12/14/16-72926.pdf
My blog post on the original 3-judge panel decision can be found here:
https://sabrina-damast.squarespace.com/config/pages/543afe51e4b005acd181a792
An amended en banc decision can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/11/16-72926.pdf
The Ninth Circuit has determined that Arizona Revised Statutes 13-3405(A)(4), which criminalizes certain acts involving marijuana, is overbroad and divisible with respect to the definition of a crime involving moral turpitude. Although the court concluded that the various acts criminalized - transportation, importation, etc. - are alternative elements of the statute, it also concluded that offenses involving a very small quantity of marijuana for sale are not crimes involving moral turpitude.
The full text of Walcott v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/12/22/18-70393.pdf
The Ninth Circuit has determined that a petitioner convicted of multiple criminal offenses, for which the aggregate sentences were 5 years or more, is ineligible for cancellation of removal for nonlawful permanent residents.
The full text of Ramirez-Medina v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/12/22/16-73325.pdf
The Eighth Circuit has determined that an Iowa conviction for domestic abuse - which requires either an intent to inflict serious injury or the use or display of a dangerous weapon - qualifies as a crime of violence under the federal sentencing guidelines. Given the similar definition of a crime of violence in the immigration and sentencing contexts, this case will likely have precedential impact in the immigration context.
The full text of US v. Tinlin can be found here:
The Third Circuit has determined that it lacks jurisdiction to review the agency’s determination not to waive the filing deadline for a VAWA-based motion to reopen.
The full text of Yasin v. Attorney General can be found here:
The Third Circuit has determined that an asylum seeker is not required to “shelter in place” until he is arrested by a repressive regime, nor is he required to present evidence of physical harm, to establish a well-founded fear of future persecution. “As we have stressed, but apparently must emphasize yet again, we have never required someone to actually subject themself to physical harm or arrest before finding that his or her fear of returning to a country is reasonable. Merely stating such an absurdity demonstrates how illogical and impractical such a requirement would be. The contrary proposition (which the BIA relied upon here) is so unreasonable that it should have been self-evident to any neutral tribunal.” The court also reminded the BIA that remaining in hiding is not the same as safely relocating within a country. Finally, the court concluded that there is a pattern or practice of persecution of political opponents in the Democratic Republic of the Congo.
The full text of Nsimba v. Attorney General can be found here:
The Second Circuit has determined that it has no jurisdiction to review the discretionary determination to permit a non-citizen to withdraw their application for admission in removal proceedings, unless the petitioner raises a legal or constitutional question in the appeal. The court also remanded the case for the Board of Immigration Appeals to decide if the Immigration Judge’s finding that the petitioner was inadmissible has any legal effect given the subsequent withdrawal of his application for admission.
The full text of Juras v. Garland can be found here:
The California Court of Appeals has determined that if a petitioner meets her burden of proving the requirements for a Special Immigrant Juvenile Status predicate order, there is a mandatory on the court to issue the findings.
The full text of Matter of Scarlett V. can be found here:
The Board of Immigration Appeals has determined - applying the Supreme Court’s decision in Stokeling - that a California carjacking conviction qualifies as a crime of violence.
The full text of Matter of A. Valenzuela can be found here:
The Eleventh Circuit has remanded an asylum, withholding of removal, and protection under the Convention Against Torture claim for a Sri Lankan citizen, finding that the agency did not give consideration to his claim of future harm based on his status as a failed asylum seeker.
The full text of Jathursan v. Attorney General can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/202010003.pdf
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
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
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
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
