Eleventh Circuit Requires Petitioner to Show Substantial Prejudice Resulting from Violation of Right to Counsel

The Eleventh Circuit has declined to address whether a petitioner has a right to counsel during an immigration judge’s review of a negative reasonable fear determination. In this case, the petitioner had been issued a final order of administrative order of removal due to an aggravated felony conviction. The court instead determined that even if such a right exists, the petitioner must show substantial prejudice stemming from the violation of that right, and the petitioner failed to do so in this case.

The full text of Priva v. Attorney General can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/202012521.pdf

Ninth Circuit Finds that Stabbing Victim Suffered Past Persecution

The Ninth Circuit has determined that an asylum seeker who was stabbed and suffered a lasting scar, and who received death threats, has suffered harm rising to the level of persecution.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/05/18/20-73166.pdf

Ninth Circuit Finds that CA Conviction for Corporal Injury of a Child is a Crime of Violence

The Ninth Circuit has determined that a California conviction for inflicting corporal injury on a child is a crime of violence because the statute requires proof that the punishment or injury inflicted on the child resulted in a traumatic condition.

The full text of Olea-Serefina v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/05/19/20-72231.pdf

Seventh Circuit Lays Out Timeliness Factors for Objections to Incomplete NTAs

The Seventh Circuit has laid out a number of factors to assess when determining if a petitioner made a timely objection to a Notice to Appear that was lacking the time and date of the first hearing. These factors include: how much time passed, in absolute terms, between the receipt of the Notice and the raising of the objection; did the immigration court set a schedule for filing objections, and did the objection comply with that schedule; and how much of the merits had been discussed or determined prior to the objection? In addition, the court may consider: if the recipient does not speak English, did she object promptly after receiving adequate translation services and notice; did the person have legal counsel at the outset, and if she obtained counsel only later, did counsel object promptly after entering the case; and did the noncitizen file any prior objections but omit this objection?

The full text of Arreola-Ochoa v. Garland can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2022/D05-17/C:21-1179:J:Wood:aut:T:fnOp:N:2877448:S:0

Fifth Circuit Overturns Adverse Credibility Determination Based on Documents not in the Record

The Fifth Circuit has determined that a judge’s reliance on a credible fear interview transcript and a Q&A document from CBP - when neither document was in the record of proceedings - formed an improper basis for an adverse credibility determination.

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

https://www.ca5.uscourts.gov/opinions/pub/19/19-60647-CV0.pdf

Fifth Circuit Finds that 8 USC 1229a(c)(7)(C)(iv)(III) Presents Question of Law

The Fifth Circuit has determined that the standards for reopening to pursue VAWA cancellation of removal —found at 8 USC 1229a(c)(7)(C)(iv)(III) — present a mixed question of fact and law that the court has jurisdiction to review. Thus, the court examined whether the petitioner had established extreme hardship or extraordinary circumstances that warranted reopening.

“We need not—and do not—determine the precise contours of ‘extraordinary circumstances or extreme hardship to the alien’s child’ with our opinion today. Nor, indeed, did the BIA in its decision. But whatever the precise contours of that standard, we can say confidently that the ordinary (terrible) circumstances of a VAWA-based motion to reopen and the usual hardships of a relocation do not suffice. Congress has given petitioners an opportunity to seek relief beyond the usual filing deadline, but it limits that opportunity to extraordinary or extreme cases.”

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

https://www.ca5.uscourts.gov/opinions/pub/20/20-60911-CV0.pdf

Fourth Circuit Reverses Injunction on Burdens of Proof in Bond Proceedings

The Fourth Circuit has reversed a class-wide injunction requiring DHS to bear the burden of proof on flight risk and danger to the community in bond proceedings. The court concluded that “1252(f)(1) expressly precludes ‘jurisdiction or authority to enjoin or restrain’ provisions of the immigration laws, including § 1226(a), on a class-wide basis.”

With respect to the claim of an individual class member that DHS should bear the burden of proof in bond proceedings, the Court concluded that noncitizens “are due less process when facing removal hearings than an ordinary citizen would have.” The court concluded that the procedures employed in bond hearings that place the burden of proof on the non-citizen comply with the requirements of due process. The court acknowledged that this creates a circuit split with the First Circuit.

Finally, the court also rejected the argument that due process requires an immigration judge to consider a non-citizen’s ability to pay when setting a bond amount. The court acknowledged that this creates a circuit split with the Ninth Circuit.

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

https://www.ca4.uscourts.gov/opinions/201828.P.pdf

Third Circuit Finds Ineffective Assistance of Counsel for Failure to Submit Corroborating Documents

The Third Circuit has determined that an attorney provided ineffective assistance of counsel by failing to present corroborating documentation of the existence of the applicant’s political party. Notably, the attorney had submitted a written denial of the allegations of wrongdoing. The court noted that “we have recognized that a lawyer cannot be expected to argue his own ineffective assistance.”

The court also criticized the Board’s determination that the assassination of the Haitian president was merely an incremental increase in political violence. “It is unclear to us what, exactly, the Board would consider an adequate change in country conditions if the assassination of the country’s leader is simply an ‘incremental increase’ in unrest.”

The full text of Saint Ford v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/211729p.pdf

Third Circuit Upholds Summary Dismissal of Appeal for Failure to File Brief

The Third Circuit has upheld the Board of Immigration Appeals’ summary dismissal of an appeal where the appellant indicated he would file a brief on the notice of appeal, but failed to do so.

The full text of Argueta-Orellana v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/201581p.pdf

Second Circuit Finds that Conviction for NY Attempted Money Laundering in Second Degree is not CIMT

The Second Circuit has determined that a New York conviction attempted money laundering in the second degree is not a crime involving moral turpitude because the statute does not impose the scienter requirement needed to constitute a CIMT. “Although the statute requires the defendant’s knowledge that the financial transaction is ‘designed to . . . conceal or disguise the nature, the location, the source, the ownership or the control of the proceeds of specified criminal conduct,’ it does not require that the offender act with the ‘evil intent’ that the BIA has considered to be inherent in a CIMT: that is, an intention to conceal the underlying criminal activity that created the proceeds, to impair government function, or to deceive the government.“

The full text of Jang v. Garland can be found here:
https://www.ca2.uscourts.gov/decisions/isysquery/6e78bae4-78ad-4640-8871-e1e0059d8c70/5/doc/19-4289_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/6e78bae4-78ad-4640-8871-e1e0059d8c70/5/hilite/

An amended opinion ca be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/5c5858dc-da0d-4ad0-ae1b-9c1fe5429531/1/doc/19-4289_amd_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/5c5858dc-da0d-4ad0-ae1b-9c1fe5429531/1/hilite/

BIA Clarifies Meaning of "Elements"

The Board of Immigration Appeals has determined that “any fact that establishes or increases the permissible range of punishment is an element of the offense for federal purposes.” In so doing, it rejected the respondent’s argument that the identity of a controlled substance is only a “grading factor,” and not an “element,” under Pennsylvania state law.

The full text of Matter of German Santos can be found here:

https://www.justice.gov/eoir/page/file/1499291/download

BIA Finds that LA Domestic Battery is not Crime of Violence

The Board of Immigration Appeals has determined that a Louisiana conviction for domestic battery is not a crime of violence (or, accordingly, a crime of domestic violence) because it criminalizes offensive touching. The Board also noted that it is the Supreme Court’s definition of violent force in Johnson and Stokeling, and not its definition of a misdemeanor domestic violence offense in Castleman, that governs the analysis under section 237(a)(2)(E)(i) of the INA.

The full text of Matter of Dang can be found here:

https://www.justice.gov/eoir/page/file/1497716/download

Ninth Circuit Rejects Ineffective Assistance of Counsel Claim

The Ninth Circuit has rejected a claim that a petitioner’s two prior attorneys committed ineffective assistance of counsel by failing to file untimely motions to reopen for him at an earlier date. “Under the circumstances of this case, we thus cannot conclude that to avoid engaging in ‘egregious conduct that threatens the fairness of the proceedings,’ petitioner’s prior lawyers were required to file untimely motions to reopen with no apparent prospect for avoiding the time bar.”

The full text of Hernandez-Ortiz v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/04/26/16-72752.pdf

Ninth Circuit Finds BIA Lacks Jurisdiction to Reopen Reinstated Order, even if BIA Thinks it has Jurisdiction

The Ninth Circuit has concluded that the agency lacks jurisdiction to reopen a reinstated removal order. As such, it denied the petitioner’s appeal citing the reinstatement provision, even though the agency denied the underlying motion to reopen on due diligence grounds.

The full text of Gutierrez-Zavala v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/04/26/20-73398.pdf

Ninth Circuit Remands Asylum Claim for Gay Nigerian Man

The Ninth Circuit has remanded an asylum claim for a gay Nigerian man, finding that a lie about the name of the hotel where was seen having sex with his boyfriend was not related to a material element of his claim. As such, the agency’s frivolous finding did not withstand scrutiny. In addition, the applicant had presented numerous corroborating documents establishing that he was gay, and the agency ignored these documents, in violation of the applicant’s due process rights.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/05/04/20-70078.pdf

Ninth Circuit Finds that Federal Conviction for Second Degree Murder is Crime of Violence

The Ninth Circuit has determined that a federal conviction for second-degree murder qualifies as a crime of violence. In so doing, it determined that “reckless indifference” is a higher mens rea than “ordinary recklessness.”

The full text of United States v. Begay can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/05/05/14-10080.pdf

Eighth Circuit Remands Somali CAT Claim

The Eighth Circuit has remanded a mentally ill Somali man’s application for protection under the Convention Against Torture, ordering the agency to consider if he would experience torture in an Internally Displaced Persons camp.

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

https://ecf.ca8.uscourts.gov/opndir/22/04/202662P.pdf

Second Circuit Finds that Violation of Protection Order Deportability Analysis is Governed by Circumstance Specific Approach

The Second Circuit has determined that deportabilty under section 237(a)(2)(E)(i) of the INA (violation of a protective order) is governed by a circumstance specific approach, not a categorical analysis.

The full text of Alvarez v. Garland can be found here:
https://www.ca2.uscourts.gov/decisions/isysquery/7ab57bdb-b5b8-4eea-80f6-61f7193bf77f/2/doc/22-6021_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/7ab57bdb-b5b8-4eea-80f6-61f7193bf77f/2/hilite/

Second Circuit Eliminates Judicial Review of Withholding-Only Proceedings

The Second Circuit has determined that a non-citizen subject to a reinstated removal order can only seek judicial review within 30 days of the reinstatement determination. The non-citizen cannot seek judicial review of any subsequent decision in a withholding-only proceeding.

The full text of Bhaktibhai-Patel v. Garland can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/7ab57bdb-b5b8-4eea-80f6-61f7193bf77f/8/doc/19-2565_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/7ab57bdb-b5b8-4eea-80f6-61f7193bf77f/8/hilite/

BIA Reviews Nunc Pro Tunc Relief in Virginia

The Board of Immigration Appeals has determined that a Virginia nunc pro tunc order to correct the identity of a controlled substance is cognizable for immigration purposes. The Board noted that a nunc pro tunc order is only available to correct a court error.

The full text of Matter of Dingus can be found here:

https://www.justice.gov/eoir/page/file/1496311/download