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The Fifth Circuit has upheld the application of the persecutor bar to an Eritrean applicant who guarded prisoners who were detained for being perceived political traitors, knew these prisoners faced long imprisonment or death, and still impeded their escape.
The full text of Gebrgzabher v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/21/21-60223-CV0.pdf
The California Court of Appeals, Fourth District has applied the doctrine of collateral estoppel to a second motion to vacate under Penal Code section 1473.7. The court noted that the appeal of the first motion applied the newer 2019 standard for relief, and the petitioner did not appeal that determination further.
The full text of People v. DeMontoy can be found here:
The Board of Immigration Appeals has determined that “[t]he respondent’s resemblance to the person the officers were seeking to arrest, and his presence in the same location where this person resided, are reasonable, articulable, objective facts justifying a brief, investigatory stop of the respondent to determine if he was the subject for whom they were searching.” “After the officers asked for identification and the respondent’s son produced a foreign identification document and the respondent stated he had no identification, the facts supported the ICE officers’ continued suspicion and justified reasonably extending the length of the stop.”
The full text of Matter of Mariscal-Hernandez can be found here:
https://www.justice.gov/eoir/page/file/1556836/download
The Ninth Circuit has determined that a District Court has no jurisdiction to stay removal of a non-citizen who has a motion to reopen pending with the Board of Immigration Appeals.
“Matias asserts that applying the plain text of § 1252(g) and refusing to enter a stay of removal pending the resolution of his motion to reopen would deprive a noncitizen [of] his statutory right to file a motion to reopen. But that’s not true. Matias’s motion to reopen has already been filed, and is currently pending before the BIA. Once the BIA decides that motion, Matias will be able to file a petition for our court to review that final agency action—including review of the BIA’s denial of his request for a stay of removal pending its decision. Matias has taken full advantage of his statutory rights and will continue to have access to the process guaranteed to him under the statute even if he is removed.”
The court further determined that “the Suspension Clause does not preserve judicial review in this case because only an extreme and unwarranted expansion of the habeas writ would encompass Matias’s requested relief.”
The full text of Matias Rauda v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/12/12/21-16062.pdf
The Ninth Circuit, sitting en banc has determined that that the terms “child abuse” and “child neglect” are ambiguous. The Court deferred to the e Board of Immigration Appeals’ (BIA) interpretation that the phrase “crime of child abuse, child neglect, or child abandonment” can include offenses that involve a mens rea of criminal negligence and acts or circumstances that create a substantial risk of harm to a child’s health or welfare, rather than causing an actual injury to the child. The Court also deferred to the BIA’s treatment of this phrase as a unitary category of crimes against children.
The court then proceeded to analyze the elements of Penal Code 273a(a). The least of the acts criminalized by the fourth branch of the statute requires proof that a defendant (1) had care of custody of a child, whether or not a parent or legal guardian; and (2) with criminal negligence, meaning in a manner that a reasonable person would have known creates a high risk of death or great bodily injury; (3) purposely put the child into an abusive situation in which the probability of serious injury was great.
The BIA defines the generic federal offense of “child abuse, child neglect, or child abandonment” to include the element of a mens rea of criminal negligence (a match to the second element of a section 273a(a) conviction), and the element of allowing a child to be placed in a situation that create a substantial risk of harm to a child’s health or welfare (a match to the third element of a section 273a(a) conviction).
The full text of Diaz Rodriguez v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2022/12/08/13-73719.pdf
The Ninth Circuit has reiterated that the agency must asses the cumulative impact of incidents of past harm when determining if an asylum/withholding of removal applicant suffered past persecution.
The full text of Salguero Sosa v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/12/16/19-70961.pdf
The Board of Immigration Appeals has determined that an Immigration Judge may revisit whether a 245(i) grandfathering petition was actually approvable when filed, even if USCIS approved the petition. in this case, the respondent’s wife had been the beneficiary of an F2B petition filed by her father. Her father failed to disclose she was married, and the petition was approved. The respondent then tried to claim grandfathering eligibility through the petition, even though F2B petitions are only valid if the beneficiary is unmarried. “We conclude that a visa petition that is not “meritorious in fact” at the time of filing will not be considered “approvable when filed,” even if the visa petition was, in fact, approved and never revoked.”
The full text of Matter of Triana can be found here:
The Ninth Circuit has determined that a 236(a) bond hearing, which places the burden of proof on the detainee, is constitutionally sufficient, and there is no requirement to provide a subsequent hearing that places the burden of proof on the government.
“Most obviously, after the Supreme Court’s decisions in Jennings and Arteaga-Martinez, it remains undetermined whether the Due Process Clause requires additional bond procedures under any immigration detention statute.” “As our own precedents demonstrate, § 1226(a) stands out from the other immigration detention provisions in key respects. Section 1226(a) and its implementing regulations provide extensive procedural protections that are unavailable under other detention provisions, including several layers of review of the agency’s initial custody determination, an initial bond hearing before a neutral decisionmaker, the opportunity to be represented by counsel and to present evidence, the right to appeal, and the right to seek a new hearing when circumstances materially change.” “Moreover, as we noted above, throughout the course of his detention, Rodriguez Diaz has had the right to seek an additional bond hearing if his circumstances materially change.” “And to the extent that the agency made errors of law in denying Rodriguez Diaz’s requests, these decisions would also be subject to judicial review in habeas.” “In sum, while Rodriguez Diaz’s private interest and the government’s interests are both substantial here, the private interest of a detained alien under § 1226(a) is lower than that of a detained U.S. citizen, and the governmental interests are significantly higher in the immigration detention context.” “For the reasons given, § 1226(a)’s procedures satisfy due process, both facially and as applied to Rodriguez Diaz.”
The court left open the possibility that another detainee might bring a successful as-applied challenge to the procedures in the future.
The full text of Rodriguez Diaz v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/11/21/20-16245.pdf
The Fifth Circuit has distinguished its decision in Rodriguez v. Garland - which precluded entry of an in absentia order when the Notice to Appear was missing the time and date of the first hearing and the applicant did not receive a notice of hearing. In the instant case, the petitioner admitted that he did receive the notice of hearing, and therefore, the Court declined to mandate reopening based on the defective Notice to Appear.
The decision in Campos-Chaves v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/20/20-60262-CV1.pdf
The Fourth Circuit has deferred to the Board’s decision in Matter of Song, which requires a K-1 entrant to submit an affidavit of support from the K-1 petitioner to adjust status even if the entrant and petitioner are now divorced.
“Song reads Sesay as granting her some leeway around strict application of the regulatory requirement that Sang, as her petitioner, must be her sponsor. In other words, as Song’s argument goes, Sesay recognized that sometimes we must bend the rules so that the K-1 process can function. So too here, she argues: if we don’t allow Song to meet public-charge requirements by enlisting a co-sponsor aside from Sang, then status adjustment will be nearly unavailable for people in Song’s situation. But Sesay doesn’t support, much less compel, Song’s position. To the contrary, Sesay confirms that K-1 beneficiaries still must satisfy public-charge requirements and other criteria for admissibility. And 8 C.F.R. § 213a.2 makes clear that K-1 beneficiaries can’t satisfy those requirements absent an affidavit of support from the petitioner. Sesay involved an ambiguous statute and the lack of applicable clarifying regulations, while here, the regulations apply on their face to Song’s situation. Nor is Song’s proposal necessary for the K-1 process to function.”
The full text of Song v. Garland can be found here:
The Third Circuit has reiterated that only a violation of a fundamental right results in automatic remand without a showing of prejudice. “For a regulation to protect a fundamental right, a violation must be a structural error that necessarily makes proceedings fundamentally unfair. Very few rights will fit this extraordinary category. [T]hese include the rights to counsel and to an unbiased judge. But rights outside this category are not fundamental enough to trigger [a] presumption of prejudice.”
The full text of Gonzalez Aquino v. Attorney General can be found here:
The Third Circuit has rejected a claim that a non-citizen was coerced into waiving his appellate rights because the judge advised him that he would likely remained detained for another year while awaiting the outcome of the appeal. “[T]t would require much more than an Immigration Judge’s predictive assessment of the timeline for an administrative appeal to compel the conclusion that Mendoza’s waiver was coerced – particularly since such an informative assessment could have augmented his knowledge and intelligence in deciding whether to waive the right.”
The full text of Mendoza v. Attorney General can be found here:
The Second Circuit has determined that acquiescence to torture by any official is sufficient to warrant protection under the Convention Against Torture. “Where, as here, the primary perpetrator of likely harm is a gang, the relevant state action question (should the BIA reach it) is whether any public official, or any other person, including low-level local police officers, when acting under color of law, will participate or acquiesce in harm that the gang is likely to inflict and that is recognized as torture under section 1208.18(a).”
The full text of Garcia-Aranda v. Garland can be found here:
The Attorney General has restored the authority of Immigration Judges and the Board of Immigration Appeals to terminate proceedings, particularly where the respondent will seek relief before USCIS, where the removal proceedings would cause adverse effects during consular processing, or where the respondent has obtained lawful permanent residency after being placed in removal proceedings.
The full text of Matter Coronado Acevedo can be found here:
The Seventh Circuit has determined that retroactive application of Matter of Thomas & Thompson to sentencing modifications entered before the issuance of the decision would be impermissible. The decision, however, was entitled to deference as applied to more recent sentence modifications.
The court also determined that an Indiana conviction for neglect of a dependent is a crime involving moral turpitude. The statute requires intentional or knowing conduct, namely confinement which is likely to result in a harm such as disfigurement, mental distress, extreme pain or hurt, or gross degradation, and yet does not necessarily endanger the dependent’s life or health.
The full text of Zaragoza v. Garland can be found here:
The Fourth Circuit has determined that the 30-day filing deadline for a petition for review runs from the date of the order, not the date the order is served on the parties.
The full text of Santos-de Jimenez v. Garland can be found here:
The Fourth Circuit has determined that “the BIA’s decision to deny equitable tolling presents a mixed question we must review de novo.” The court noted that a “noncitizen needs to act only with ‘reasonable,’ ‘not maximum feasible diligence.’” The court also noted that when a motion to reopen is based on a change in law (in this case, the Supreme Court’s decision in Dimaya), the diligence requirement begins no earlier than the change in law. But even then, the court must ask when the petitioner reasonably could have discovered the change in law, taking into account the petitioner’s financial circumstances and ability to access counsel.
“Still, he discovered his rights just one year after the Court enunciated them. Giving 'due consideration to the reality that many departed aliens are poor, uneducated, unskilled in the English language, and effectively unable to follow developments in the American legal system, we hold Williams could not reasonably have been expected to have filed earlier.”
The full text of Williams v. Garland can be found here:
https://www.ca4.uscourts.gov/opinions/201854.P.pdf
An amended opinion can be found here:
The Ninth Circuit has found that it lacks jurisdiction to review any constitutional challenges to an expedited removal order, including any credible fear proceedings.
The full text of Mendoza-Linares v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/10/24/20-71582.pdf
The court has declined to rehear the case en banc:
https://cdn.ca9.uscourts.gov/datastore/opinions/2023/07/05/20-71582.pdf
The Tenth Circuit has determined that the reinstatement provision at 8 USC 1231(a)(5) prevents reconsideration of a removal order. The court also found that a prior reinstatement of the order is sufficient to trigger this bar, even if the order has not been again reinstated since the petitioner’s most recent illegal entry.
The full text of Zapata-Chacon v. Garland can be found here:
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110758299.pdf
The Ninth Circuit has determined that the jurisdiction stripping provision at 8 USC 1252(f)(1) does not affect a court’s authority to issue an injunction requiring USCIS to timely adjudicate SIJS petitions because section 235(d)(2) of the TVPRA (which contains the relevant SIJS provisions) was passed after the effective date of IIRIRA.
The full text of Moreno Galvez v. Jaddou can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/11/03/20-36052.pdf
