Ninth Circuit Finds Evidentiary Hearing Necessary in Post-Conviction Matter

The Ninth Circuit has determined that a non-citizen is entitled to an evidentiary hearing on his ineffective assistance of counsel claim when the only evidence that his attorney provided inaccurate advice was his own affidavit.

With respect to whether the defendant would have rejected the plea had he been properly informed of the consequences, the court noted that that the judge’s advisal about possible removal and the plea agreement’s statement that removal was presumptively mandatory were not determinative on the issue of prejudice. “The record evidence contradicting Rodriguez’s argument is certainly strong. Rodriguez was told by the district court that removal was ‘a possible consequence’ of his plea and the plea agreement informed Rodriguez that his plea would make removal ;presumptively mandatory.’ But possibilities and presumptions are not conclusive, and even the plea agreement stated that ‘no one . . . can predict to a certainty the effect of [Rodriguez’s] conviction on his immigration status.’”

“When the court is faced with a fact-intensive analysis such as assessing whether a defendant would have gone to trial had he known the immigration consequences of his plea, and where the defendant presents some evidence not palpably false which suggests that he would have gone to trial, then it cannot be said that the record is conclusive against the defendant, nor can it be said that the defendant’s claim is ‘so palpably incredible or patently frivolous as to warrant summary dismissal.’ On these facts, it is ‘illogical’—and therefore an abuse of discretion—to deny an evidentiary hearing.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/09/23/21-15117.pdf

Ninth Circuit Finds Sikh Asylum Seeker Suffered Past Persecution

The Ninth Circuit has determined that a Sikh asylum seeker has established past persecution, despite the agency’s finding that he only suffered minor injuries. “Five factors compel the conclusion that Singh indeed experienced serious harm: (1) he was forced to flee his home after being repeatedly assaulted; (2) one of those incidents involved a death threat; (3) he was between the ages of 16 and 18 when the attacks occurred; (4) his brother also experienced this violence; and (5) we have already recognized that Mann Party members have faced persistent threats in the region of India where Singh was twice attacked.”

“Singh had to flee his home after he was the victim of a verbal confrontation and two physical attacks, one of which involved a death threat. Based on our precedents, he suffered serious harm. The BIA disagreed, noting that Singh suffered from only bruises, scratches, and swollen body parts after these altercations. But we do not require severe injuries to meet the serious-harm prong of the past-persecution analysis.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/09/14/20-72806.pdf

Third Circuit Finds Denial of Continuance to Detainee Violated his Due Process Rights

The Third Circuit has determined that the denial of a continuance to a detainee who had recently obtained counsel violated his due process rights. “We are hard pressed to find a more compelling set of facts constituting a violation of Freza’s due process and statutory right to counsel. After Freza diligently sought counsel while incarcerated, he was finally able to obtain counsel the day before his rescheduled merits hearing. However, when that counsel moved for a 30-day continuance so that she could prepare to adequately represent him, the IJ denied the motion, and the BIA affirmed, relying primarily on the fact that Freza’s initial hearing had taken place almost a year before. The IJ and BIA plainly ignored that the delay was due to circumstances completely outside Freza’s control. Indeed, this was Freza’s first request for a continuance of his merits hearing and there was no evidence to indicate that the request was a dilatory tactic by Freza or his counsel. In fact, it was reasonable that counsel would request such a continuance, as she had only met with Freza for the first time less than 24 hours before the merits hearing and she had not had time to review the record. Denying the continuance under these circumstances was clearly an abuse of discretion and a violation of Freza’s due process and statutory right to counsel.”

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

https://www2.ca3.uscourts.gov/opinarch/212259p.pdf

Third Circuit Finds Error in Denial of Continuance

The Third Circuit has determined that the agency erred in denying a continuance to an applicant for cancellation of removal who wished to present additional lay and expert testimony regarding hardship to his children. “Here, the IJ rested his denial of the continuance on an assumption that witness testimony would be unnecessary and then faulted Martinez for perceived gaps in the record that those witnesses likely would have been able to fill. In the circumstances presented, we conclude that Martinez has demonstrated that the IJ’s decision fell outside the range of permissible decisions, as did the BIA’s decision endorsing that decision.”

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

https://www.ca2.uscourts.gov/decisions/isysquery/12ae7ed4-81e2-4349-a906-0050d41df79e/7/doc/20-3476_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/12ae7ed4-81e2-4349-a906-0050d41df79e/7/hilite/

Ninth Circuit Finds AZ Drug Statutes Divisible

The Ninth Circuit has determined that the Arizona statutes criminalizing drug possession and possession of drug paraphernalia are divisible with respect to the identity of the controlled substance. The analysis related to the drug possession statute followed the Arizona Supreme Court’s determination that jury unanimity is required with respect to the identity of the substance. But the Arizona Supreme Court declined to address whether such unanimity is required under the paraphernalia statute. Thus, though the Ninth Circuit determined that it is, it also noted that if the Arizona Supreme Court subsequently rules otherwise, the Arizona Supreme Court’s interpretation would govern.

The full text of Romero-Millan v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/08/29/16-73915.pdf

Ninth Circuit Reverses Denial of Changed Country Conditions MTR

The Ninth Circuit has reversed the denial of a changed country conditions motion to reopen, finding that the new evidence presented was independent of a prior adverse credibility determination. Among other documents, the motion to reopen included Singh’s birth certificate, a letter from the Mann leader attesting to his membership in the party, and a letter from his mother stating that the police were looking for Singh. This evidence was independent of the facts that formed the prior credibility finding. Indeed, the IJ had expressly relied on the lack of such corroborating evidence to find Singh not credible. The prior adverse credibility finding thus logically could not have implicated the newly submitted evidence. 

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/08/30/19-73107.pdf

Ninth Circuit Finds Red Notice Insufficient to Establish Reason to Believe Petitioner Committed Serious Nonpolitical Crime

The Ninth Circuit has rejected an Interpol Red Notice as sufficient evidence to demonstrate a reason to believe the petitioner had committed a serious nonpolitical crime. The court noted that the notice alleged the petitioner participated in a crime at a time when the Immigration Judge found he was already in the United States, the underlying arrest warrant was not filed by the Department of Homeland Security, and the notice lacked sufficient details about the alleged crime.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/08/31/21-70112.pdf

Eighth Circuit Finds that Iowa Conviction for Intimidation with a Dangerous Weapon is not Necessarily COV

The Eighth Circuit has determined that an Iowa conviction for intimidation with a dangerous weapon is not necessarily a crime of violence because the offense of making a threat by itself does not require the use of force or attempted use of force.

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

https://ecf.ca8.uscourts.gov/opndir/22/09/212187P.pdf

Eighth Circuit Finds that Iowa Conviction for Assault on a Peace Officer is COV

The Eighth Circuit has determined that although the language of the Iowa statute criminalizing assault on a peace officer contains alternatives which lack a force element, the petitioner had not identified any case where the statute was applied in a way that did not involve at least the threatened use of physical force.

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

https://ecf.ca8.uscourts.gov/opndir/22/08/212369P.pdf

Seventh Circuit Finds No Prejudice from Defective Reinstatement Order

The Seventh Circuit has recognized the defects in a reinstatement order (namely, that it was signed more than 6 months before the petitioner was given an opportunity to respond to it), but denied the petition for review due to a lack of prejudice caused by the deficiencies.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2022/D08-29/C:20-1739:J:Jackson-Akiwumi:aut:T:fnOp:N:2924397:S:0

Fifth Circuit Construes Stop-Time Rule

The Fifth Circuit has determined that the issuance of a final order of removal does not stop the accrual of physical presence for the purposes of cancellation of removal for nonlawful permanent residents.

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

https://www.ca5.uscourts.gov/opinions/pub/19/19-60425-CV0.pdf

Third Circuit Finds NACARA Applicant Cannot Mitigate Heightened Standard with 212(h) Waiver

The Third Circuit has determined that an applicant for NACARA cancellation of removal cannot combine the application with a waiver under section 212(h) of the INA. Thus, an applicant convicted of marijuana possession will need to show 10 years of physical presence to qualify for NACARA cancellation.

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

https://www2.ca3.uscourts.gov/opinarch/211490p.pdf

CA Supreme Court Addresses SIJS Standards

The California Supreme Court has published a decision addressing the standards for obtaining a Special Immigrant Juvenile Status (SIJS) predicate order.

First, the Court noted that the applicant must prove the applicability of SIJS findings by a preponderance of the evidence.

Second, the Court reiterated that a child’s declaration can be enough to meet that burden. “Superior courts may not ignore or discredit facts shown by a child’s declaration based on surmise or on evidence outside the record or draw speculative inferences against the child.”

Third, the Court laid out factors for consideration in determining whether reunification with a parent is viable. “In making this inquiry, courts should consider all relevant circumstances, including the ongoing psychological and emotional impact on the child of the past relations between the child and the parent, how forced reunification would affect the child’s welfare, the parent’s ability and willingness to protect and care for the child, and the parent’s living conditions.” “The fact that harm to the child is attributable to a parent’s poverty does not preclude a court from determining that reunification with the parent is not viable.”

Fourth, the Court disagreed with the lower courts’ determination that abandonment and neglect for SIJS purposes requires the parent to intend to abandon or neglect the child. “Family Code section 3402, part of California’s version of the Uniform Child Custody Jurisdiction and Enforcement Act, defines ‘abandoned’ as ‘left without provision for reasonable and necessary care or supervision.’ And Welfare and Institutions Code section 300, subdivision (g) provides a laundry list of ways in which a child may be deemed abandoned for the purposes of establishing dependency jurisdiction, among them when a child is ‘left without any provision for support.’ Neither of these definitions requires a showing that the parent intended to abandon the child.”

Fifth, the Court addressed what other factors might amount to a “similar basis” to abuse, neglect, or abandonment for a nonviability determination. Among those factors are a parent’s inability to supervise or protect a child, and whether this inability poses a substantial risk that the child will suffer serious physical harm or illness. “To the extent it is more common for parents in El Salvador to be unable to protect their children from gang violence than it is for parents in California, that is an improper basis for concluding that Saul has failed to show that reunification with his parents is nonviable due to their inability to adequately protect him from ‘a substantial risk’ of ‘serious physical harm.’”

Sixth, the Court addressed the “best interest” determination. “The best interest determination is distinct from the nonviability of reunification determination in that the court’s focus is not on the relationship between the child and the child’s parent. Instead, the best interest determination focuses on the effects of sending children back to live in their home countries. The court’s inquiry involves a case-specific, holistic comparison of the child’s circumstances in California to the circumstances in which the child would live if repatriated, including the capacities of current or potential caregivers — who may or may not be the child’s parents — in each location.” “[A] court should make a holistic comparison between circumstances affecting the child’s health, safety, and welfare in California and in the child’s home country, giving special consideration, where appropriate, to the child’s wishes.”

The full text of Guardianship of Saul H. can be found here:

http://sos.metnews.com/sos.cgi?0822//S271265

BIA Finds that NY Second Degree Burglary is Aggravated Felony

The Board of Immigration Appeals has determined that a New York conviction for second degree burglary matches the generic definition of a burglary aggravated felony “because the statute requires burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation.”

The full text of Matter of V-A-K- can be found here:

https://www.justice.gov/eoir/page/file/1526896/download

Eleventh Circuit Affirms In Absentia Order

The Eleventh Circuit has determined that a petitioner who was served a defective Notice to Appear (missing the time and place of his first hearing) can still be ordered removed in absentia if he moved after receipt of the NTA and before issuance of a notice of hearing, but did not update the immigration court about his new address.

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

https://media.ca11.uscourts.gov/opinions/pub/files/202013705.pdf

Eleventh Circuit Finds Georgia Malice Murder is Crime of Violence

The Eleventh Circuit has determined that Georgia’s malice murder statute qualifies as a crime of violence. “The Georgia malice murder statute states that ‘[a] person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.’ Because we have held that killing in such a manner necessarily entails the use of physical force against the person of another, we conclude that Georgia malice murder . . . is a crime of violence under Section 924(c)’s elements clause.”

The full text of Alvarado-Linares v. US can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/201914994.pdf

Tenth Circuit Finds Issuance of Final Removal Order does not Trigger Stop-Time Rule

The Tenth Circuit has determined that the issuance of a final removal order does not trigger the stop-time rule for cancellation of removal.

The full text of Estrada-Cardona can be found here: https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110725741.pdf

Ninth Circuit Concludes that Applicant for Relief Bears the Burden to Prove Basis of Vacatur

The Ninth Circuit has determined that an applicant for relief bears the burden of proof for proving that a conviction was vacated due to legal defect. The court found the applicant had met his burden of proof when his conviction was withdrawn under Penal Code section 1018. “The grounds for allowing withdrawal of a guilty plea under § 1018 are substantive and procedural defects in the underlying proceeding.”

"The BIA noted that Ballinas-Lucero’s Memorandum ‘asserts that the respondent felt pressured, did not understand his options, did not discuss his case with an attorney, and was not adequately advised of the immigration consequences of his plea.’” “Any reasonable adjudicator reading Ballinas-Lucero’s Memorandum in support of his motion would be required to find that the factual grounds asserted pertained overwhelmingly to substantive and procedural defects in his pleas, as specified in § 1018.”

“Despite the clarity of Ballinas-Lucero’s Memorandum, and of the criteria in § 1018, the BIA found the ‘absence of any statement by the court regarding the reasons for permitting the withdrawal of the respondent’s guilty plea’ to be dispositive. This was error. As the Attorney General stated in In re Thomas, adjudicators applying the ‘Pickering test . . . frequently determine whether a vacatur is valid for immigration purposes by assessing the text of the order of vacatur itself or the alien’s motion requesting the vacatur.’”

The full text of Ballinas-Lucero v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/08/15/17-73260.pdf

Ninth Circuit Finds CA Witness Intimidation is not Obstruction of Justice Aggravated Felony

The Ninth Circuit has determined that a California conviction for witness intimidation is not an obstruction of justice aggravated felony because it is missing the element of a nexus to an ongoing or pending proceeding or investigation. The court also noted that the statute was broader than the federal witness tampering statute because it lacks the requirement that an individual “uses intimidation, threatens, or corruptly persuades another person,” or “engages in misleading conduct toward another person.”

The court did note that subsections (a) and (c) of Penal Code 136.1 required malice, but subsection (b) (at issue in this case) did not. Nonetheless, the court also analyzed a case interpreting 136.1(a), and determined that the definition of malice “was not the kind of intimidation, threat, corrupt persuasion, or misleading conduct that would give rise to liability under 18 U.S.C. § 1512(b).”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/08/15/19-72779.pdf

Eighth Circuit Finds that Nebraska Conviction for Negligent Child Abuse is Deportable Offense

The Eighth Circuit has determined that a Nebraska conviction for negligent child abuse is a deportable crime of child abuse because the statute requires a mens rea of at least criminal negligence.

The full text of Al-Masaudi v. Garland can be found here:

https://ecf.ca8.uscourts.gov/opndir/22/08/212166P.pdf