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 Ninth Circuit has remanded an asylum claim for the agency to address if women perceived to be lesbians qualify as a particular social group, noting that neither the Board of Immigration Appeals nor the Ninth Circuit have addressed imputed sexual orientation as a particular social group in a precedential decision.
The full text of Antonio v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2023/01/26/21-70624.pdf
The Eighth Circuit has rejected the proposed particular social group of “witnesses who cooperate with law enforcement,” finding that it lacks the required social distinction.
The full text of Lemus-Coronado v. Garland can be found here:
The Seventh Circuit has determined that the Supreme Court’s decision in Patel v. Garland does not strip it of jurisdiction to review the agency’s negative good moral character determination in connection with an application for cancellation of removal when the determination is based on undisputed facts.
The full text of Cruz-Velasco v. Garland can be found here:
The Second Circuit has determined that a New York conviction for second degree sexual abuse qualifies as a sexual abuse of a minor aggravated felony. The opinion included a concurrence calling on the Second Circuit to reexamine its case law on the definition of sexual abuse of a minor in light of more recent Supreme Court case law.
The full text of Debique v. Garland can be found here:
The Second Circuit has determined that New York’s first-degree assault statute is divisible, but the prongs that require intent to cause physical injury and use of a deadly weapon or dangerous instrument match the definition of a crime of violence.
The full text of Singh v. Garland can be found here: https://www.ca2.uscourts.gov/decisions/isysquery/fe9d6267-187a-43e6-822f-738f2704f49b/10/doc/19-2910_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/fe9d6267-187a-43e6-822f-738f2704f49b/10/hilite/
The Board of Immigration Appeals has determined that a respondent who moves to reopen proceedings to seek cancellation of removal for non-lawful permanent residents must make a prima facie showing of exceptional and extremely unusual hardship to his qualifying relatives. In addition, the issuance of administratively final removal order does not stop the accrual of physical presence for cancellation purposes. Finally, the BIA declined to determined if the decision in Niz Chavez represents a fundamental change in law warranting sua sponte reopening.
The full text of Matter of Chen can be found here:
The Fourth Circuit has determined that the Virginia identity theft statute is divisible, and the subsection requiring an intent to defraud is a crime involving moral turpitude.
The full text of Salazar v. Garland can be found here:
The Eleventh Circuit has determined that Matter of Thomas and Thompson is a reasonable interpretation of the INA and that it can be retroactively applied to sentencing modifications that pre-date the decision.
The full text of Edwards v. Attorney General can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/201915077.pdf
Am amended decision can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/201915077.op2.pdf
The Ninth Circuit has determined that solicitation of transportation of an explosive in interstate commerce with intent that the explosive kill, injure, or intimidate another person or damage property constitutes the attempted use of violent force.
“In this case, we conclude that someone who solicits a violation of § 844(d) categorically solicits the attempted use of physical force: transporting or receiving an explosive with the knowledge or intent that it will be used to kill, injure, or intimidate any person, or damage property, is categorically a substantial step toward the use of violent force.”
The full text of US v. Linehan can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/12/22/21-50206.pdf
The Ninth Circuit has remanded a motion to reopen filed by a pro se applicant who missed her first hearing, and contacted the immigration court within a week to inquire about her in absentia hearing. The court found that the applicant’s statements of non-receipt of the hearing notice were entitled to credibility in the absence of contrary evidence.
The full text of Perez-Portillo v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/12/30/20-73486.pdf
The Eighth Circuit has determined that in 2003, Missouri’s definition of cocaine included isomers not encompassed by the current federal definition. “Because Missouri’s definition of cocaine included positional isomers while the federal definition does not, the Missouri definition is unambiguously broader than its federal counterpart. Moreover, Missouri courts have interpreted the Missouri drug schedule as making all isomers of cocaine illegal.”
The full text of US v. Myers can be found here:
The Eighth Circuit has determined that the Board provided insufficient reasoning for reversing the grant of CAT protection to an applicant with an IQ of 55 who had been threatened with death by gang members in El Salvador.
The full text of Alvarez-Gomez v. Garland can be found here:
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
