Third Circuit Addresses Jurisdiction over Challenge to Administrative Removal Order

The Third Circuit has determined that DHS does not provide an individual subject to a Final Administrative Removal Order with the opportunity to contest the legal determination that a cited conviction is an aggravated felony. As such, the federal appeals court has jurisdiction to consider that challenge even if it wasn’t raised to the agency below. In addition, the Court determined that a Pennsylvania conviction for receipt of stolen property is a categorical match to the definition of a theft-related aggravated felony.

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

https://www2.ca3.uscourts.gov/opinarch/202439p.pdf

Second Circuit Finds Dual National Need Only Establish Persecution from One Country to Qualify as Refugee

The Second Circuit has determined that a dual national need only establish a well-founded fear of persecution in one of her countries of nationality in order to qualify as a refugee. The court did not that a second nationality would be relevant to the firm resettlement bar and discretion, and therefore, a dual national refugee might still not be granted asylum.

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

https://www.ca2.uscourts.gov/decisions/isysquery/985524eb-c9c6-4dc3-a65e-c4624d3f8ecb/2/doc/19-145_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/985524eb-c9c6-4dc3-a65e-c4624d3f8ecb/2/hilite/

CA Appellate Court Grants Vacatur for Defendant Advised Only of Possibility of Immigration Consequences

The California Court of Appeals, Third Appellate District, has sustained the appeal of a defendant who was only warned of the mere possibility of immigration consequences, and who had lived in the United States with his family for decades prior to his plea.

The full text of People v. Valdivias Soto can be found here:

http://sos.metnews.com/sos.cgi?0622//C092015

CA Appellate Court Rejects Motion to Vacate for Defendant who Admitted He Knew he Would be Deported

The California Court of Appeal, Second Appellate Division, has denied a motion to vacate for a defendant who admitted he knew he would be deported when he took his plea and who initially stated his attorney didn’t ask him about his immigration status but later admitted that he did.

The full text of People v. Garcia can be found here:

http://sos.metnews.com/sos.cgi?0622//B310824

SCOTUS Finds No Statutory Requirement for Prolonged Detention Bond Hearings for Non-Citizens Subject to Reinstatement

The Supreme Court has determined that there is no statutory requirement to provide a bond hearing to an individual subject to a reinstated order of removal. The Court left open the possibility that such hearings might be required by the Constitution.

The full text of Johnson v. Arteaga-Martinez can be found here:

https://www.supremecourt.gov/opinions/21pdf/19-896_2135.pdf

SCOTUS Prohibits Classwide Injunctions of Mandatory Detention Provisions

The Supreme Court has determined that 8 USC 1252(f)(1) prohibits the issuance of classwide injunctions by federal courts (other than the Supreme Court) that enjoin certain provisions of the INA, including the mandatory detention provisions.

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

https://www.supremecourt.gov/opinions/21pdf/20-322_m6hn.pdf

BIA Finds that FL Deferred Adjudication Constitutes "Conviction by Final Judgment"

The Board of Immigration Appeals has determined that a Florida deferred adjudication - which involved a defendant who pled nolo contendere and received a probationary sentence - not only qualifies as a conviction for immigration purposes, but also qualifies as a “conviction by final judgment” for particularly serious crime purposes.

The full text of Matter of D-L-S- can be found here:

https://www.justice.gov/eoir/page/file/1512791/download

Seventh Circuit Finds Indiana Definition of Methamphetamine Broader than Federal Definition

The Seventh Circuit has determined that Indiana’s definition of methamphetamine is broader than the federal definition. “Under federal law, methamphetamine is a Schedule II or III controlled substance that includes ‘its salts, isomers, and salt of isomers.’ Under federal law, ‘isomer’ of methamphetamine only refers to ‘the optical isomer.’” “Because the Indiana legislature chose to limit the types of isomers defining other drugs but did not do so with methamphetamine, we must read the schedules to define methamphetamine as including at least optical and positional isomers.” The court noted that as of 2020, Indiana had narrowed the definition of an isomer of methamphetamine to optical isomers only. However, that definition was not present at the time of the petitioner’s conviction.

The full text of Aguirre-Zuniga v. Garland can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2022/D06-16/C:21-1201:J:Jackson-Akiwumi:aut:T:fnOp:N:2891535:S:0

Ninth Circuit Finds that CA Forgery Conviction is Categorically CIMT

The Ninth Circuit has determined that a California conviction for forgery is categorically a crime involving moral turpitude because it requires an intent to defraud.

The full text of Vasquez-Borjas v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/06/17-70867.pdf

Ninth Circuit Finds that Hawaii's Second-Degree Robbery Statute is Divisible

The Ninth Circuit has determined that Hawaii’s second-degree robbery statute is divisible. Subsection (b), which requires the defendant to “threaten[] the imminent use of force against the person of anyone who is present with intent to compel acquiescence to the taking of or escaping with the property” matches the definition of a crime of violence.

The full text of US v. Tagatac can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/10/21-10133.pdf

Ninth Circuit Finds Oregon First Degree Residential Burglary is a Burglary Aggravated Feony

The Ninth Circuit has determined that Oregon’s first-degree residential burglary statute is a categorical match to the definition of a burglary aggravated felony. In so doing, the court rejected the argument that the statute includes entering the curtilage of the building, or that statute’s occupancy requirement is too intermitent.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/10/20-73583.pdf

Ninth Circuit Determines that Federal Conviction for Maliciously Damaging Property by Means of an Explosive is not COV

The Ninth Circuit has determined that a federal conviction for maliciously damaging or destroying property by means of an explosive is not a categorically crime of violence because it criminalizes destruction of the defendant’s property.

The full text of US v. Mathews can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/13/19-56110.pdf

Ninth Circuit Finds Past Persecution based on Threats and Harm to Others

The Ninth Circuit has determined that a Nicaraguan protestor experienced past persecution in the form of direct threats and witnessing the shooting of a fellow protestor and friend. “Flores Molina was publicly marked as a terrorist and threatened with torture over social media by government operatives, repeatedly verbally threatened with death by supporters of the Ortega regime, received a death threat painted on his home by masked men likely affiliated with the government, and received a second death threat—this time during a direct confrontation—after he was seriously beaten by six members of the Sandinista Youth. In addition, Flores Molina had a near confrontation with an armed paramilitary group that located him at a hideaway. The threats were credible given the history and context of the Ortega regime’s killing and torture of its political opponents. Indeed, Flores Molina witnessed the killing of his friend and fellow protester when his friend was shot in the head at a demonstration.” “The progression of threats and violence that Flores Molina experienced was set against the well-documented backdrop of the Ortega regime’s violent crackdown on members of the political opposition.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/13/19-73028.pdf

Ninth Circuit Rejects First Amendment Challenge to Alien Smuggling Statute

The Ninth Circuit has rejected a facial overbreadth challenge to the alien smuggling statute, finding that “‘encouraged’ refers to soliciting or aiding and abetting criminal conduct, and section 1182(a)(6)(E)(i) therefore applies to the solicitation or facilitation of specific unlawful activity—illegal entry or attempted entry into the United States.” The court further noted that “[t]o the extent that cases under section 1182(a)(6)(E)(i) have involved speech, that speech was accompanied by some ‘affirmative act of help, assistance, or encouragement’ that was either integral to an alien’s illegal entry or ancillary to actions ordinarily understood as smuggling.”

The full text of Marquez-Reyes v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/14/17-71367.pdf

Ninth Circuit Limits Federal Court Review of Bond Denials

The Ninth Circuit has determined that the determination of whether a particular noncitizen poses a danger to the community is a discretionary determination, which a federal court may not review. “What one immigration judge may find indicative of a propensity for danger, another may see as progress toward redemption. This is exactly the type of discretionary judgment that § 1226(e) insulates from judicial review.”

The court further rejected the petitioner’s assertion that due process required the Immigration Judge to consider alternatives to detention before deeming him to be a danger to the community. “Due process does not require immigration courts to consider conditional release when determining whether to continue to detain an alien under § 1226(c) as a danger to the community.”

The full text of Martinez v. Clark can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/15/21-35023.pdf

Ninth Circuit Upholds Denial of MTR on Credibility Grounds

The Ninth Circuit has permitted the agency to rely on a prior adverse credibility determination premised on the applicant’s failure to establish his true identity when adjudicating a motion to reopen to pursue asylum. The court found that the issue of the applicant’s identity remained relevant to the new asylum evidence.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/16/17-72389.pdf

Fifth Circuit Finds that TX Conviction for Felony Injury to a Child is Deportable Offense

The Fifth Circuit has determined that a Texas conviction for felony injury to a child is a crime of child abuse. The court recognized that the statute is overbroad because it criminalizes injury to the elderly and injury to the disabled, but also determined that the statute is divisible between between victim classes.

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

https://www.ca5.uscourts.gov/opinions/pub/20/20-60952-CV0.pdf

Third Circuit Finds that NJ Conviction for Engaging in Sexual Conduct which would Impair or Debauch the Morals of a Child is Crime of Child Abuse

The Third Circuit has concluded that a New Jersey conviction for “engaging in sexual conduct which would impair or debauch the morals of a child” is a crime of child abuse, noting that the use of the word “would” indicates a probability (rather than a mere capacity) to cause harm to the child. The court also analyzed state case law which indicated that the conduct must have a tendency to cause harm to the child.

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

https://www2.ca3.uscourts.gov/opinarch/202651p.pdf

SCOTUS Eliminates Review of Factual Determinations Connected to Discretionary Relief

The Supreme Court has determined that federal courts lack jurisdiction to consider challenges to the agency’s factual findings in connection with certain types of discretionary relief (such as adjustment of status). Perhaps worse, both the majority and the dissent recognize that this decision will likely foreclose any review of denials of adjustment of status (including those denied based on legal determinations, rather than factual findings) outside of the removal context.

As the dissent recognizes, this is a terrible decision that effectively leaves applicants with no way to correct agency errors.

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

https://www.supremecourt.gov/opinions/21pdf/20-979_h3ci.pdf

AG Says that Agency Can Consider Mental Health Conditions in Particularly Serious Crime Determination

The Attorney General has determined that the agency may consider an applicant’s mental health conditions when determining if the applicant has been convicted of a particularly serious crime. “In some circumstances, a respondent’s mental health condition may indicate that the respondent does not pose a danger to the community— for instance, where the respondent ‘suffered from intimate partner violence, was convicted of assaulting his or her abuser, and reliable evidence showed that the individual’s diagnosed post-traumatic stress disorder had played a substantial motivating role in the assault.’ Of course, an individual may pose a danger to the community notwithstanding a mental health condition, and in those cases, the ‘particularly serious crime’ bar to asylum and withholding of removal may apply. But the potential relevance of mental health evidence to the dangerousness inquiry suffices to establish that such evidence should not categorically be disregarded, as G-G-S- held.”

The full text of Matter of B-Z-R- can be found here:

https://www.justice.gov/eoir/page/file/1504486/download