BIA Finds that Appeal Deadline is Claims Processing Rule

The Board of Immigration Appeals has determined that its appeal deadline is a claims processing rule, and that a late-filed appeal is subject to equitable tolling of the deadline if the appealing party demonstrates that he pursued his rights diligently and that some extraordinary circumstance prevented timely filing. “An extraordinary circumstance may include those situations where reasonable expectations about an event’s occurrence are interrupted. One example is where a party uses a guaranteed delivery service, and the service fails to fulfill its guarantee. Here, counsel for the respondents has not explained how a document was inadvertently mailed, rather than sent by guaranteed overnight delivery.”

The full text of Matter of Morales-Morales can be found here:

https://www.justice.gov/eoir/page/file/1582681/download

BIA Permits Reference to Plea Transcript under Modified Categorical Approach

The Board of Immigration Appeals has determined that a plea transcript may be consulted under the modified categorical approach when a defense counsel provides a factual basis for a plea, the defendant assents, and the basis corresponds to the one of the alternate ways of violating the statute.

The full text of Matter of Cancinos-Mancio can be found here:

https://www.justice.gov/eoir/page/file/1581896/download

Eighth Circuit Rejects PSG of Witnesses who Cooperate with Law Enforcement

The Eighth Circuit has rejected the proposed particular social group comprised of “witnesses who cooperate with law enforcement,” finding no evidence that Guatemalan society recognizes these witnesses as a socially distinct group.

The full decision in Oxlaj v. Garland can be found here:

http://media.ca8.uscourts.gov/opndir/23/05/221734P.pdf

Eighth Circuit finds that Assaulting, Opposing, Impeding, or Resisting a Federal Officer with Use of a Deadly Weapon or Infliction of Bodily Injury is a Crime of Violence

The Eighth Circuit has determined that a federal conviction for assaulting, opposing, resisting, or impeding a federal officer with use of a deadly weapon or with infliction of bodily injury is a crime of violence.

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

http://media.ca8.uscourts.gov/opndir/23/04/221841P.pdf

Seventh Circuit Construes Crime of Domestic Violence Deportability Ground

The Seventh Circuit has determined that the domestic relationship between perpetrator and victim need not be an element of the statute of conviction to establish deportability under section 237(a)(2)(E)(i) of the INA. Instead, the relationship may be established using the circumstance specific approach outlined in Nijhawan v. Holder.

The full text of de Jesus Caldera-Torres v. Garland can be found here:

http://media.ca7.uscourts.gov/cgi-bin/OpinionsWeb/processWebInputExternal.pl?Submit=Display&Path=Y2023/D04-27/C:22-2282:J:Easterbrook:aut:T:fnOp:N:3036912:S:0

Sixth Circuit finds that "Honduran Rural Landownership" is Immutable Characteristic, Single Mothers Living Without Male Protection are Socially Distinct,

The Sixth Circuit has issued a decision with a number of favorable findings related to particular social groups in the context of gang persecution in Honduras. First, they found that “Honduran land ownership” is a characteristic so fundamental to the identities of the group members that it is immutable. Second, they found that “single mothers living without male protection” are socially distinct, citing a statement by a deputy commander in the Honduran police that such women are particularly vulnerable within society.

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

https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0094p-06.pdf

Fifth Circuit Finds No Jurisdiction to Review Denial of Motion to Remand in Non-LPR Cancellation Appeal

The Fifth Circuit has determined that it lacks jurisdiction to review the denial of a motion to remand to consider additional hardship evidence in a non-LPR cancellation of removal application.

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

https://www.ca5.uscourts.gov/opinions/pub/22/22-60074-CV0.pdf

Fifth Circuit Finds that 237(a)(1)(H) Waiver does not Reach CIMT Removability

The Fifth Circuit has determined that a 237(a)(1)(H) waiver cannot waive inadmissibility stemming from a crime involving moral turpitude committed prior to adjustment of status nor for deportability related a conviction for visa fraud.

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

https://www.ca5.uscourts.gov/opinions/pub/22/22-60111-CV0.pdf

Third Circuit Construes SIJS Parole Language

The Third Circuit has determined that a Special Immigrant Juvenile is paroled for adjustment purposes only, and is still properly found removable for being present without admission or parole.

The full text of Cortez-Amador v. Attorney General can be found here: https://www2.ca3.uscourts.gov/opinarch/221249p.pdf

First Circuit Construes Former Citizenship Statute

The First Circuit, in construing former section 321(a) of the INA, has assumed that manifesting an intent to reside permanently in the US would be sufficient for derivation of citizenship, but found that a minor who abandoned his adjustment application by failing to appear at an interview without a reasonable explanation did not manifest such intent.

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

http://media.ca1.uscourts.gov/pdf.opinions/22-1496P-01A.pdf

Ninth Circuit Finds no Jurisdiction to Review Denial of U Visa Waiver

The Ninth Circuit has determined that federal courts have no jurisdiction to review the denial of a U visa waiver of inadmissibility. The full text of Mejia Vega v. USCIS can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/04/14/16-56795.pdf

Eighth Circuit Finds that Object of the Conspiracy is an Element of Iowa Conspiracy Statute

The Eighth Circuit has determined that the object crime of a conspiracy is an element of the offense of the Iowa conspiracy statute. Therefore, conspiracy to commit willful injury causing bodily injury is a crime of violence.

The full text of United States v. McConnell can be found here: http://media.ca8.uscourts.gov/opndir/23/04/213759P.pdf

Fifth Circuit Leaves Open Possibility of Jurisdiction to Review Denied Adjustment of Status

The Fifth Circuit has again determined that TPS holders who are subject to a final order of removal, and who travel on advance parole, must reopen their removal proceedings to seek adjustment of status. In so doing, the Court left open the possibility that the Supreme Court’s recent decision in Patel v. Garland might not have stripped federal courts of jurisdiction to review denials of adjustment of status applications outside of removal proceedings.

The full text of Alvarado Hernandez v. Jaddou can be found here:

https://www.ca5.uscourts.gov/opinions/pub/22/22-20325-CV0.pdf

Fifth Circuit Determines no EAJA Fees Available for Habeas

The Fifth Circuit has determined that Equal Access to Justice Act fees are not available in habeas actions. The full text of Gomez Barco v. Witte can be found here:

https://www.ca5.uscourts.gov/opinions/pub/21/21-30748-CV0.pdf

First Circuit Finds that Good Faith Marriage Determination is Mixed Question of Fact and Law

The First Circuit has determined that the good faith marriage determination required by an I-751 waiver is a mixed question of fact and law, which the court maintains jurisdiction to review. The court noted the underlying factual findings would not be reviewable.

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

http://media.ca1.uscourts.gov/pdf.opinions/22-1561P-01A.pdf

CA Ct. of Apps. Finds that Court is not Required to Dismiss Charges after Vacatur

The California Court of Appeals, First Appellate Division, has determined that a court is not required to dismiss charges after granting a motion to vacate under section 1473.7 of the California Penal Code.

The full text of People v. Vaca can be found here: http://sos.metnews.com/sos.cgi?0423//A164953

Ninth Circuit Finds that Washington Accomplice Liability Matches Federal Definition

The Ninth Circuit has determined that both Washington and federal generic accomplice liability law require prosecutors to meet the same standard of proof: they must show the accomplice had advance knowledge of the crime he facilitated. In so holding, the court overruled US v. Valdivia-Flores and US v. Franklin and held that second-degree robbery in Washington matches the definition of a theft aggravated felony.

The full text of Alfred v. Garland (including two concurrences and two dissents):

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/03/30/19-72903.pdf

Ninth Circuit Holds that Loss to Victim is Loss Associated with Conspiracy

The Ninth Circuit has determined that the loss to the victim as the result of a fraud-related conspiracy is the loss attributable to the entire conspiracy. That is because “all coconspirators are criminally liable for reasonably foreseeable overt acts committed by others in furtherance of the conspiracy they have joined, whether they were aware of them or not.” The court also determined that a sentencing enhancement based on loss to the victim was sufficient to prove the amount of loss, even in the absence of a restitution order.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/03/30/21-70909.pdf

Fifth Circuit Finds no Jurisdiction to Review USCIS Denial of Adjustment of Status

The Fifth Circuit has determined that it lacks subject matter jurisdiction to review the denial of an adjustment of status application for someone who has not been placed in removal proceedings, on the theory that the person may be able to renew the application at a future date if such proceedings commence.

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

https://www.ca5.uscourts.gov/opinions/pub/22/22-20344-CV0.pdf

Sixth Circuit Finds Restitution Order Insufficient to Demonstrate Loss to Victim

In a very unusual circumstance, the Sixth Circuit has found a restitution order - based on an itemized “loss” list that contained internal inconsistencies, as well charges not covered by the criminal statute - was insufficient to demonstrate a greater than $10,000 loss to the victim.

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

https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0058p-06.pdf