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 Eighth Circuit has determined that an Arizona conviction for aggravated assault, which required the defendant to intentionally or knowingly impede the normal breathing or circulation of blood of another person by applying pressure to the throat or neck or by obstructing the nose and mouth either manually or through the use of an instrument, is a crime of violence.
The full text of US v. Lopez-Castillo can be found here:
The Eighth Circuit has determined that a Nebraska conviction for terroristic threats is not a violent felony because it encompasses reckless conduct.
The full text of US v. Williams can be found here:
https://ecf.ca8.uscourts.gov/opndir/22/02/203311P.pdf
The Eighth Circuit has rejected a defendant’s argument that a Minnesota conviction for attempted second-degree murder is not a violent felony because it encompasses reckless conduct, finding that one cannot attempt to commit reckless conduct.
The full text of US v. Matthews can be found here:
The Fourth Circuit has rejected the government’s argument that a negative reasonable fear determination should be upheld based on a “facially legitimate and bona fide reason,” finding this standard applicable only to visa denials. Instead, the determination should be reviewed for substantial evidence. The court then found that the applicant established a nexus between his family relationship to his son and the harm he suffered.
The full text of Tomas-Ramos v. Garland can be found here:
The Third Circuit has affirmed that a person admitted as a nonimmigrant, who subsequently leaves the United States and is paroled back in on an advance parole document, is properly classified as an arriving alien.
The full text of Iredia v. Attorney General can be found here:
The Second Circuit has granted a petition for review of a denied asylum case, finding the decision was riddled with errors. First, the agency erroneously required that a changed circumstance (for one-year filing deadline tolling) not be one caused by the applicant. Second, the agency’s discretionary denial of asylum was based solely on the applicant’s criminal history, without any consideration of his equities. Third, the agency erroneously qualified the applicant’s wire fraud as a crime against the person, which brought it within the ambit of a particularly serious crime. The court noted that wire fraud is a crime against property, not against a person. Fourth, the judge made no reference to an expert declaration, nor gave any reason for discounting it.
The full text of Ojo v. Garland can be found here:
The First Circuit has affirmed the permissibility of relying on a police report for an open criminal matter when determining whether an adjustment of status applicant merits an exercise of discretion.
The full text of Thomas v. Garland can be found here:
The First Circuit has held that when an asylum applicant is found not credible due to a lack of corroborating evidence, she must given the opportunity to explain the absence of the corroboration. “Absent some statement by the IJ or the BIA indicating that Ixcuna-Garcia would not be credible even if she had proffered the necessary corroborating evidence, we can have no confidence that the IJ or the BIA would have come to the same credibility determination had Ixcuna-Garcia been provided an opportunity to either produce the required corroboration or explain why she reasonably could not.”
The full text of Ixcuna-Garcia v. Garland can be found here:
The California Court of Appeals, Second Appellate District, has affirmed the denial of a motion to vacate where the defendant was orally warned (through an interpreter) that he would be deported, he signed a written waiver with the same warning (translated by an interpreter), he went over that waiver with his attorney, his attorney verbally stated that she had explained the immigration consequences of the plea to him, and he orally acknowledged that he would “wait for immigration.” In addition, the victim of the offense testified at the preliminary hearing that she had reported the defendant to ICE and that ICE had said they would apprehend him if she could tell them his whereabouts, and an ICE agent was present at the defendant’s preliminary hearing.
“During the taking of the plea, appellant was told orally and in writing that he will be deported. Not that he ‘might’ be deported, or that he ‘could’ be deported. Appellant’s argument that he was not aware of the mandatory nature of the deportation flies in the face of the mandatory language used to describe the likelihood of deportation. Appellant is not entitled to simply ignore the admonitions he was given about the consequences of the plea, and argue that he unilaterally assumed he would be treated in direct contravention of what he was advised orally and in writing.”
“A defendant seeking to set aside a plea must do more than simply claim he did not understand the immigration consequences of the plea. The claim must be corroborated by evidence beyond the defendant’s self-serving statements.” The court noted the presence in other cases of testimony by the defense attorney or the defense attorney’s notes. “Here, appellant offered no contemporaneous evidence such as an affidavit and/or testimony by trial counsel, or counsel’s files, notes, or email correspondence. This is a case unlike Vivar, where the written advisal informed defendant he ‘may’ be subject to deportation, and counsel stated ‘possible’ deportation was discussed with defendant. Appellant has presented no independent evidence that he was told anything other than that he would be deported.”
“Appellant has also failed to present evidence that at the time of the plea, he ‘had reason to believe an immigration neutral negotiated disposition was possible.’ He did not offer an expert declaration opining hat alternative, nondeportable dispositions would have been available and acceptable to the prosecutor. His counsel now engages in speculation that he could have pled to burglary, without any citation from the record indicating that disposition would have been entertained by the prosecutor. And the issue is whether appellant had reason to believe a nondeportable disposition was available. He did not present a declaration from trial counsel that he was given such advice (which would have been contrary to the direct plea advisals that deportation would occur).”
“Appellant has not explained why anyone would reasonably have expected that ICE would forgo deportation proceedings against someone who admitted in writing they were temporarily getting married solely to obtain citizenship. Appellant has not shown that even if he had made an error in entering into the plea, it was ‘prejudicial’ within the meaning of the statute. At its core, this case comes down to answering the question: Can a defendant be told repeatedly that his plea will result in deportation, confirm he understood, present no contrary evidence from the attorney who advised him, and then withdraw the plea with the claim that he did not understand he would be deported? Our answer under the facts of this case is ‘no.’”
The full text of People v. Abdelsalam can be found here:
The Board of Immigration Appeals has determined that an in absentia removal order need not be reopened when the respondent was served with a Notice to Appear missing the time and date of the first hearing, but also served with a Notice of Hearing containing that information. The Board acknowledged that its decision is inconsistent with the Fifth Circuit’s recent decision in Rodriguez v. Garland.
The full text of Matter of Laparra can be found here:
The Board of Immigration Appeals (BIA) has determined that a New Jersey statute criminalizing possession of a dangerous substance is divisible with respect to the identity of the controlled substance. The agency found several authoritative state law decisions that didn’t seemingly support its conclusion, but instead of concluding that state law does not consider the identity of the substance as an element, the BIA (in a well-choreographed tap dance) decided the decisions were so old as to not properly use the terms “means” and “element” as they are understood today. All in all, the decision reads as a fairly desperate attempt by the BIA to avoid the possibility that people convicted of drug possession in New Jersey won’t be deportable.
In the BIA’s defense, their analysis of the structure of the statute seems more consistent with case law, and less like an analysis focused on outcome only.
The full text of Matter of Laguerre can be found here:
The Board of Immigration Appeals (BIA) has determined that an Iowa theft statute is overbroad as compared to the generic definition of a theft offense because it includes theft by taking without consent and theft by deception or fraud. However, the BIA has also determined that the statute is divisible between the theft by taking subsection and the theft by fraud or deceit subsection. It left open the possibility that the theft by taking and theft by exercising control over stolen property subsections are alternate means, not elements, of the statute.
The full text of Matter of Koat can be found here:
The Eleventh Circuit has rejected a petitioner’s argument that Florida’s definition of cocaine is broader than the federal definition, finding the petitioner failed to prove the existence of nongeometric diastereomers of cocaine.
The full text of Chamu v. Attorney General can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/201913908.pdf
The Ninth Circuit has determined that a California arson conviction is overbroad and indivisible compared to the arson aggravated felony ground because the mens rea is broader in the California law than the federal law. “[T]o be convicted under § 844(i), a defendant need not have intended to damage or destroy property covered by the statute. But he must at least have engaged in an intentional act that resulted in damage to or destruction of such property, and in doing so, he must have been subjectively aware of the risk that his actions would result in that harm. By contrast, a defendant may be convicted under California Penal Code § 451(b) for engaging in an intentional act that results in the burning of an inhabited structure or property even if he was not subjectively aware of the risk that his actions would result in that harm.”
The full text of Togonon v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/01/10/19-71693.pdf
The Ninth Circuit has determined that a federal conviction for assaulting a mail carrier with intent to steal mail, while placing the mail carrier’s life in jeopardy by the use of a dangerous weapon, is a crime of violence. “The ‘use of a dangerous weapon,’ especially when deployed to put the victim’s life in jeopardy, reflects force that is capable of causing death or serious injury.“
The court noted that the crime of assaulting a mail carrier is divisible. “§ 2114(a) is divisible into basic and aggravated offenses—a point on which the parties agree. The basic offense, punishable by ‘not more than ten years,’ is contained in the clause preceding the semicolon. That crime consists of assaulting any person with custody or control of mail matter or other government property with intent to steal the property, or otherwise attempting or successfully robbing the person of the property. The aggravated offense, which follows the semicolon, carries a term of imprisonment of ‘not more than twenty-five years.’ That crime consists of the basic offense committed in one of three aggravated ways: (1) wounding the person with custody or control of mail matter or other government property; (2) placing the person’s ‘life in jeopardy by the use of a dangerous weapon’; or (3) committing a subsequent offense under § 2114(a).”
The court also concluded that the aggravated offense is itself divisible. “Here, the second clause of § 2114(a) presents disjunctive elements, not alternative factual means of committing a single offense. A person commits the aggravated offense under § 2114(a) and exposes himself to an extra fifteen years’ imprisonment if he ‘wounds the person having custody of such mail, money, or other property of the United States, or puts his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense.’ In context, the three items in the aggravated clause are substantively different elements concerning different conduct and involving different proof.”
The full text of US v. Buck can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/01/11/18-17271.pdf
The Ninth Circuit has rejected the argument by a petitioner that her deportation proceedings should be reopened because she was a minor at the time of apprehension by the immigration officials and no responsible adult was served with a copy of her Order to Show Cause (OSC). The court noted that the petitioner was released on her own recognizance (because immigration officials believed her to be 20 years old) and not to an adult, and therefore, there was no responsible adult to service the OSC upon.
The full text of Jimenez-Sandoval v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/01/13/19-73193.pdf
The Fifth Circuit has determined that a Texas conviction for aggravated assault cannot qualify as a crime of violence in light of the Supreme Court’s decision in Borden v. United States because it includes a minimum mens rea of recklessness, and the statute is indivisible between the various applicable mens reas.
The full text of US v. Gomez Gomez can be found here:
https://www.ca5.uscourts.gov/opinions/pub/17/17-20526-CR1.pdf
The Fifth Circuit has determined that a Texas conviction for deadly conduct qualifies as a crime involving moral turpitude, even though it includes reckless conduct. “Deadly conduct . . . demands an imminent threat of serious physical injury. Because its potential harm is grave, no countervailing, heightened mens rea is necessary for deadly conduct to constitute a CIMT; recklessness suffices.” The court also reaffirmed that the petitioner, who had initially entered the United States without inspection, was admitted to the United States at the time he adjusted status to lawful permanent residence.
The full text of Diaz Esparza v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/19/19-60699-CV0.pdf
The Fifth Circuit has determined that a Texas felony conviction for family violence is not a crime of violence in light of the Supreme Court’s decision in Borden v. United States because it includes reckless conduct.
The full text of United States v. Fuentes-Rodriguez can be found here:
https://www.ca5.uscourts.gov/opinions/pub/15/15-40740-CR1.pdf
The Fourth Circuit has determined that the agency abused its discretion by denying a continuance to a U visa applicant, when the Immigration Judge determined that she was likely to have her application approved. The court noted that the agency relied on “secondary factors” to determine that no good cause existed for a continuance: (1) the petitioner had been “found removable and did not submit any applications for relief” to the IJ; (2) she could still pursue her U visa application and seek a stay of removal from DHS; (3) DHS opposed the motion; and (4) it would not be administratively efficient to grant a continuance.” The agency failed to evaluate any of the primary factors: whether the collateral relief (i.e, the U visa) is likely to be granted and whether the decision on the collateral relief will affect the outcome of the removal proceedings.
The full text of Garcia Cabrera v. Garland can be found here:
