These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
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New Case Law
The Second Circuit has determined that making false statements in violation of 18 U.S.C. § 1001(a) is a crime involving moral turpitude because the conviction “necessarily requires ‘deceit and an intent to impair the efficiency and lawful functioning of the government.’”
The full text of Cupete v. Garland can be found here:
The Fifth Circuit has determined that TPS holders who travel on advance parole after the commencement of removal proceedings are admitted back into the United States, and therefore, are not arriving aliens. Jurisdiction for their adjustment of status rests solely with the immigration courts (assuming they were not classified as arriving aliens prior to their departure), and if they have a final order of removal, they will first need to reopen their removal proceedings before filing their adjustment of status applications.
The full text of Duarte v. Mayorkas can be found here:
https://www.ca5.uscourts.gov/opinions/pub/18/18-20784-CV0.pdf
The Fifth Circuit has determined that a Tennessee money laundering statute is divisible, and the subsection criminalizing using the proceeds of illegal activity to promote illegal activity is an aggravated felony.
The full text of Fakhuri v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/19/19-60275-CV0.pdf
The California Court of Appeals, Second District, has affirmed the denial of a motion to vacate a robbery plea brought by a former temporary resident. “Diaz knew he had temporary resident status that would soon expire and an upcoming appointment to obtain permanent resident status that he would necessarily miss if incarcerated. Although he was legally in the country at the time he pleaded no contest, he knew that he would lose his legal status if he made the plea.
Even if Diaz had believed that someone legally in the country would not face deportation or other immigration consequences as he claims, he also knew that his legal status would expire and that he would not have the ability to secure it. If he believed his fate relied on his legal status, he would have understood that if he made the plea he would not be in the country legally after his temporary resident status expired and that he would potentially be subject to adverse immigration consequences.
If Diaz’s attorney had not spoken to him about immigration consequences prior to Diaz making the plea, it seems highly unlikely that Diaz would not have consulted him when Diaz was advised of the potential dangers by the District Attorney just prior to pleading no contest. Diaz was aggressive in his self advocacy at the plea hearing. He asked multiple questions, spoke directly to the court several times, and attempted to bargain directly with the court as well. Diaz persevered in his efforts to obtain what he wanted, whether it was the significant benefit of a lesser sentence or the return of $17. It is simply not believable that he would leave his immigration status to chance without discussing it with his attorney. The more logical conclusion is that Diaz did, in fact, discuss deportation with Tanaka, knew it would be nearly impossible to avoid, and decided that the slim possibility of success at trial was not worth the risk that he would serve six years in prison.
'Moreover, Diaz declared that he was processed by immigration officials prior to being imprisoned for his 1989 conviction, and that they informed him he had been convicted of a deportable offense and would lose his legal resident status (although he would not be deported despite his illegal status). Diaz did not state that he was surprised, dismayed, or that he attempted to take any action to secure his legal status at that time. His inaction is inconsistent with his claim that he did not believe he would face any adverse immigration consequences and would not accept any resolution of the charges against him if he knew that he would not have a legal right to remain in the United States.
We further conclude that Diaz has failed to show he was prejudiced—i.e. that there was a reasonable probability Diaz would have rejected the plea agreement if he had correctly understood its actual or potential immigration consequences.
In addition to Diaz’s declarations, there was contemporaneous objective evidence in his favor. Diaz had entered the country as a six-year-old child; deportation would have separated him from his mother and from the country where he had spent two-thirds of his young life. These are compelling reasons for Diaz to wish to remain in the United States legally.
We cannot conclude that they are sufficient to meet his burden when weighed against other considerations, however. There is very strong evidence that Diaz made an informed decision to accept the plea bargain that he was offered. There was no other plea offer available to Diaz, as is evident from the plea colloquy and the sentencing hearing. The court stated that the sentence it was willing to give Diaz was better than the one the District Attorney was willing to offer, and it was also the court’s ‘bottom offer. . . . It isn’t going to get any better.’ Given the facts of this case—including that Diaz was the only one of the perpetrators who wielded a deadly weapon, held a knife to the victim’s neck, and drew blood—Diaz ‘had [no] reason to believe that the charges would allow an immigration-neutral bargain that a court would accept.’”
The court further noted that it appears Diaz had a prior criminal record (including possible prison time), that he had forcefully advocated for a lesser prison term and for the return of $17 that had been in his possession at the time of his arrest, and that despite that forceful advocacy, he had made no inquiry after being advised of potential immigration consequences by the court.
The full text of People v. Diaz can be found here:
The Board of Immigration Appeals has determined that when “the DHS argues that the mandatory bar for filing a frivolous asylum application applies, the Immigration Judge errs in not addressing the issue and making sufficient factual findings on whether the requirements for a frivolousness determination have been met.” The Board left open the possibility that an Immigration Judge might have the discretion not to enter a frivolous finding even if the requirements for such a determination have been met.
The Ninth Circuit has determined that a California conviction for rape of an unconscious person is not an aggravated felony because it includes intercourse with someone whose consent was procured by fraud. The court found the statute to be overbroad and indivisible.
The court, however, gave the Board of Immigration Appeals another opportunity to decide if the generic definition of rape includes consensual intercourse obtained through fraud. It seems likely that this conviction will again be found to be an aggravated felony after the Board’s decision on remand.
The full text of Valdez Amador v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/03/09/13-71406.pdf
The Seventh Circuit has found that the Board of Immigration Appeals abused its discretion when it denied a motion to accept a late-filed brief filed by a respondent who had only received his record of proceedings days before the briefing deadline. “The Board provided only two reasons for denying Olu‐ wajana’s motion to submit a brief out of time: (1) the second request for an extension of the briefing deadline was denied, and (2) the brief was received 33 days late. Neither basis supports the Board’s decision. First, the mere fact that the Board denied a second extension request cannot justify the rejection of a late brief. The agency’s own regulation prohibits the Board from extending the briefing deadline more than ‘one time per case.’ But the same regulation goes on to say that the Board ‘may consider a brief that has been filed out of time.’ Thus, the Board’s rules envision that a late brief may be accepted even though a second extension of the briefing deadline is barred. It was nonsensical for the Board to deny Oluwajana permissible relief because he was not first granted relief that the Board’s rules prohibit. We will not sustain a decision based on the Board’s interpretation of its rules that causes ‘unreasonable, unfair, and absurd re‐sults.’ Next, and more obviously, the Board clearly erred in finding that Oluwajana submitted his brief 33 days late. After the Board granted the initial request to extend the briefing dead‐ line, the due date was February 24, 2021, not February 3. So, when Oluwajana submitted his brief on March 8, it was only 12 days past due, not the month and more stated in the Board’s order. The Board abuses its discretion when it exercises that discretion based on factual determinations ‘contrary to the detailed evidence in the record.’”
The full text of Oluwajana v. Garland can be found here:
An amended opinion can be found here:
The Fourth Circuit has reversed the denial of a motion to reopen filed by a grantee of withholding of removal, when the motion is premised on new instances of persecution that could suffice to toll the one-year filing deadline for asylum. Citing its prior decision in Zambrano, the court noted that “we held that ‘[n]ew facts that provide additional support for a pre-existing asylum claim can constitute a changed circumstance. These facts may include circumstances that show an intensification of a preexisting threat of persecution or new instances of persecution of the same kind suffered in the past.’ Garcia Hernandez contends the September 2018 murder of his brother falls within the type of changed circumstances discussed in Zambrano.”
The full text of Garcia Hernandez v. Garland can be found here:
The Fourth Circuit has affirmed the denial of a family-based particular social group claim for a woman who was persecuted by her brother-in-law because she tried to protect her sister from domestic violence. The court found that “[t]he record would not compel a reasonable adjudicator to conclude that Veronica’s membership in Guisela’s family was anything more than incidental, tangential, superficial and subordinate to another reason for Rogelio to harm her. In contrast, the record contains substantial evidence that central reasons for Veronica’s persecution included her intervening in Guisela’s and Rogelio’s marriage, aiding her sister in escaping Rogelio and assisting in Rogelio’s capture and imprisonment.” This narrow nexus analysis seems out of step with other Fourth Circuit cases on family-based social groups, which have recognized that a mother protects her son from gang recruitment because of their family ties. It is unclear why a sister would not be similarly motivated by family ties to protect her sibling from domestic abuse.
The court also noted that Rogelio similarly persecuted non-family members who assisted Guisela, and cited this as evidence that it was the assistance to Guisela, not the family ties, that motivated the persecution. The court also relied on this fact to distinguish this case from its other precedents on persecution motivated by family ties.
The full text of Toledo-Vasquez v. Garland:
The First Circuit has determined that a Massachusetts conviction for accessory after the fact is an obstruction of justice-related aggravated felony. In so doing, the court determined that the definition of obstruction of justice unambiguously “does not require a nexus to a pending or ongoing investigation or judicial proceeding.” This widens a circuit split, with the Ninth and Third Circuits requiring a nexus to an ongoing investigation, and the Fourth Circuit and First Circuit agreeing with the Board of Immigration Appeals that an ongoing investigation is not required.
The First Circuit further determined that even assuming a nexus to an investigation is required, the Massachusetts statute meets that requirement. “To be convicted under that statute, the accessory must act with specific intent to enable a felon to ‘avoid or escape detention, arrest, trial, or punishment.’ Absent an investigation, there can be no prosecution and no detention, arrest, trial, or punishment to avoid or escape.”
The full text of Silva v. Garland can be found here:
The Board of Immigration Appeals has determined that a non-citizen is not eligible for an asylee adjustment of status if his asylum status has been terminated prior to filing the adjustment application. The Board also affirmed that the applicant’s convictions for bank fraud and identity theft were particularly serious crimes that rendered him ineligible for withholding of removal.
The full text of Matter of T-C-A- can be found here:
The Eleventh Circuit has remanded a case to the Board for further analysis about whether a federal conviction for misuse of a social security number is a crime involving moral turpitude. In so doing, the court noted that fraud requires that a misrepresentation be made to obtain a benefit from someone or cause a detriment to someone. “A violation of § 408(a)(7)(B) can sometimes be for the ‘purpose of obtaining anything of value from any person’—which would involve fraud—but under the categorical approach the ‘least culpable conduct necessary to sustain a conviction’ is the false representation of the Social Security number for ‘any other purpose,’ i.e., for a nonfraudulent purpose.”
“Our holding today does not foreclose the possibility that a conviction for a violation of § 408(a)(7)(B) may be a CIMT. But if the BIA is going to hold that it is, it will need to do what it has so far failed to do in Mr. Zarate’s case—it will have to apply its two pronged moral turpitude standard in toto and decide whether the statute, under the categorical approach, involves conduct that is ‘reprehensible,’ i.e., conduct that is ‘inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.’”
The full text of Zarate v. U.S. Attorney General can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/202011654.pdf
The Ninth Circuit has determined that a California conviction for voluntary manslaughter is a crime involving moral turpitude because it requires at least reckless conduct and serious harm (death of the victim).
The full text of Ortiz Narez v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/16/19-72039.pdf
The Ninth Circuit has granted a petition for panel rehearing in B.R. v. Garland, which dealt with proper service of a Notice to Appear on a minor, as well as the proper remedy when DHS obtains juvenile records in violation of state law.
B.R. was deemed an unaccompanied minor and remained in custody until he was eventually released to his mother in March 2011. Upon his release, DHS failed to serve a copy of the NTA on B.R.’s mother. In fact, DHS has never served B.R.’s mother with his NTA. No substantive proceedings took place between 2011 and 2018 (in part, because B.R. was incarcerated for some of that time). In January 2018, B.R. (now represented by an attorney) moved to terminate proceedings on the ground that DHS failed to effectuate proper service in 2011 by failing to serve a copy of his NTA on B.R.’s custodian (his mother) when he was released to her custody, which he argued was required for minor aliens pursuant to Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004). The IJ acknowledged that DHS’s 2011 NTA service was improper under our Flores-Chavez rule, but denied the motion after concluding that DHS was permitted to perfect service by re-serving the NTA on then-adult B.R. The IJ noted DHS had done so by reserving the NTA by mail on B.R.’s counsel as an attachment to the agency’s response to B.R.’s motion.
In March 2018, B.R. filed a motion to suppress evidence and to terminate proceedings, in which he argued that the three I-213s that DHS had assembled and submitted as evidence of B.R.’s alienage improperly relied on B.R.’s confidential juvenile records—an act B.R. argued was a violation of his Fourth and Fifth Amendment rights and an egregious regulatory violation—and that these forms should be suppressed. B.R. argued that without the I-213s, DHS, which at that point had submitted no other evidence of his alienage, failed to meet its burden of establishing that B.R. was born in Mexico. In response to the motion, DHS submitted two additional pieces of evidence of alienage: (1) B.R.’s Mexican birth certificate, and (2) a district court presentence investigation report which stated that B.R. was born in Mexico.
The IJ denied the motion to suppress evidence and to terminate proceedings. The IJ refrained from deciding whether DHS had acted unlawfully with respect to B.R.’s juvenile records in the preparation of the I213s but assumed for purposes of analysis that DHS had indeed obtained information for the I-213s unlawfully. Sidestepping the merits, the IJ held that DHS’s supplemental evidence (the Mexican birth certificate and the district court presentence report) was obtained based on B.R.’s identity alone, which, regardless of any alleged constitutional or regulatory violation, cannot be suppressed. Thus, the IJ found the supplementary evidence not suppressible and determined that DHS had proved B.R.’s Mexican alienage by clear, unequivocal, and convincing evidence, even without the I-213s.
“Reviewing the matter de novo, we hold that improper service of an NTA on a minor alien released from DHS custody can be cured if DHS later perfects service before substantive removal proceedings begin. Therefore, regardless whether DHS’s improper service in 2010 failed to vest the immigration court with jurisdiction initially, the immigration court had jurisdiction throughout all of B.R.’s substantive removal proceedings subsequent to DHS’s perfection of service on B.R. in 2018.” “Nothing in the statute or regulations requires termination of removal proceedings solely because the initial service was found to be defective.” “Flores-Chavez requires DHS to serve the NTA on the custodian of a minor alien after he is released. It does not create a bizarre rule where, if service on the custodian is not made the instant the minor is released, DHS is barred from pursuing removal.” “To cure defective service, DHS re-served the NTA on then-adult B.R., but B.R. here complains that DHS again did not serve notice on B.R.’s mother. We hold that DHS need not have served B.R.’s mother after he turned eighteen and that DHS properly perfected service by mailing the NTA to B.R.’s attorney.”
“In holding that DHS may cure defective service to avoid violating § 1229 and related regulations, we do not suggest that there is no remedy when improper service amounts to an egregious regulatory violation which works to prejudice an alien’s interests. Our test from Sanchez v. Sessions provides adequate remedy of such instances: “[A] petitioner is entitled to termination of their [sic] proceedings without prejudice as long as the following requirements are satisfied: (1) the agency violated a regulation; (2) the regulation was promulgated for the benefit of petitioners; and (3) the violation was egregious, meaning that it involved conscience-shocking conduct, deprived the petitioner of fundamental rights, or prejudiced the petitioner.” 904 F.3d 643, 655 (9th Cir. 2018). B.R. argues that, even if DHS is permitted to cure defective service, its initial failure to serve B.R.’s mother in accordance with Flores-Chavez’s interpretation of 8 C.F.R. § 236.3 and the seven-year gap between its initial failure and its perfection in 2018 were egregious regulatory violations because they prejudiced his interests, requiring termination of his removal proceedings. The agency, however, did not address B.R.’s egregious regulatory violation argument below.” “Because the agency did not address B.R.’s egregious regulatory violation argument, we grant B.R.’s petition and remand to the agency for it to consider that particular argument. We leave the determination of whether DHS did in fact commit an egregious regulatory violation, including whether DHS prejudiced B.R., for the agency to determine in the first instance on remand.”
“According to B.R.’s evidence, DHS could not have obtained the birth certificate without using at least some of the information available to DHS only in B.R.’s confidential juvenile court record, to wit his date of birth, the Mexican state in which he was born, his parents’ names, etc. That is specific evidence of taint, yet nothing in the record indicates that the agency seriously considered this evidence. Instead, it appears the agency arbitrarily ignored it and found the government’s evidence free from taint. That is error and an abuse of discretion.” “If ICE located the birth certificate by using information gleaned from B.R.’s juvenile records or his I-213s, it would not be free from the taint of that alleged suppressible violation. If ICE used only his name, or used information obtained in its interview with B.R., then DHS has the burden on remand to so demonstrate, and to so demonstrate with sufficient detail to allow the IJ to verify that the evidence does not constitute fruit of unlawful government conduct.”
“We note, however, that B.R. never satisfied his burden to submit specific evidence that DHS’s presentence investigation report was tainted.” “B.R.’s conviction is a matter of public record and information contained within that official file is per se independent of any suppressible violation committed pursuant to unrelated immigration proceedings. B.R. has not provided any evidence that DHS uncovered his federal conviction by using information obtained from B.R.’s unrelated California state juvenile criminal record. Even so, we have serious misgivings as to the propriety of the admission of the presentence investigation report that should be addressed on remand, including how DHS obtained the presentence investigation report when it was placed under seal by the federal district court. Given these misgivings and the fact that the agency relied on both the birth certificate and the presentence investigation report in determining that DHS’s evidence was sufficient to establish alienage, we refrain from concluding in the first instance that the presentence investigation report alone is sufficient to establish B.R.’s alienage.”
The full text of the amended decision in BR v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/23/19-70386.pdf
My blog post on the original panel decision can be found here:
The Eighth Circuit has determined that the Minnesota first-degree burglary statute is overbroad compared to the definition of a violent felony, but that the subsection criminalizing burglary with assault is a violent felony.
The full text of US v. Fisher can be found here:
https://ecf.ca8.uscourts.gov/opndir/22/02/212151P.pdf
The Sixth Circuit has determined that the written warnings in an asylum application regarding the consequences of filing a frivolous asylum claim are sufficient; there is no requirement that an immigration judge orally repeat those warnings. The court recognized the possibility that this written warning might not suffice if an applicant did not adequately learn of it—say, because the applicant does not speak English and the person who completed the application did not pass along this information.
The full text of Khaytekov v. Garland can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0036p-06.pdf
The Second Circuit has determined that a New York conviction for petit larceny is a crime involving moral turpitude because an intent to appropriate property requires an intent to substantially erode the victim’s ownership rights.
The full text of Ferreiras v. Garland can be found here:
The Board of Immigration Appeals has determined that an immigration judge may look at the order of forfeiture to determine the loss to victims in a fraud-related aggravated felony analysis “if the proceeds received are sufficiently tethered and traceable to the conduct of conviction.” “Additionally, in conspiracy convictions, only the proceeds personally acquired by an individual conspirator may be subject to forfeiture—there is no joint and several liability. Therefore, in application, only specific proceeds received by the defendant can be subject to forfeiture, rather than the amount that was received by the entire criminal enterprise.”
The BIA further determined that the conviction was a particularly serious crime, barring withholding of removal. “The nature of the respondent’s conviction, which involves attempting or conspiring to obtain money or property through fraud, brings it within the ambit of a particularly serious crime.”
The full text of Matter of F-R-A can be found here:
The Ninth Circuit has determined that a Notice of Referral to Immigration Judge missing the time and date of a first withholding only hearing does not affect the immigration court’s jurisdiction over the withholding only case.
The full text of Tzompantzi-Salazar v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/09/20-71514.pdf
A slightly amended version of the opinion can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/04/21/20-71514.pdf
The Ninth Circuit has determined that a court may not issue an in absentia removal order when the Notice to Appear is missing the time and date of the first removal hearing. “We grant Singh’s petition and hold that noncitizens must receive a Notice to Appear in a single document specifying the time and date of the noncitizen’s removal proceedings, otherwise any in absentia removal order directed at the noncitizen is subject to rescission pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii).” The court rejected the Board’s contrary determination in Matter of Laparra.
The full text of Singh v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/04/20-70050.pdf
On remand from the Supreme Court (which rejected the Ninth Circuit’s analysis about the implications of a Notice to Appear missing the first hearing information as it relates to issuance of an in absentia removal order), the Ninth Circuit again remanded this petition for review to the agency, noting the agency failed to consider the totality of the circumstances, including his eligibility for relief, the advancement of his hearing date by the court system, and the role his attorney played.
An updated decision can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/17/20-70050.pdf
