Eighth Circuit Finds an Aggravated Felony Despite Loss of Only $1000 for Convicted Count

The Eighth Circuit has affirmed a finding that a lawful permanent resident was convicted of a fraud aggravated felony, even though the loss related to the sole count of conviction was approximately $1000. In so doing, the court looked to the overall restitution order (which included loss related to dismissed counts) in excess of $475,000 and her admission that she aided and abetted her mother’s scheme to defraud the State of California of that amount of money.

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

http://media.ca8.uscourts.gov/opndir/23/08/221739P.pdf

Sixth Circuit Reaffirms that Denial of Withholding and CAT is Appealable within 30 Days

The Sixth Circuit has reaffirmed that an individual subject to a reinstated removal order files a timely petition for review if it is filed within 30 days of the agency’s dismissal of his withholding of removal and protection under the Convention Against Torture claims.

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

https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0186p-06.pdf

BIA Discusses "Under Color of Law" for CAT

The Board of Immigration Appeals has abandoned its prior “rogue official” formulation for Convention Against Torture claims, and refocused on whether an official was acting under color of law when inflicting torture. “An act that is motivated by personal objectives may be under color of law when the actor uses his or her official authority to further those objectives.” “[I]t is key to consider whether he or she was only able to accomplish the acts of torture by virtue of holding official status. In evaluating if a public official acted under color of law, circuit courts have often relied on whether the actor’s government connections provided physical access to the victim, or to the victim’s whereabouts or other identifying information.” “Also relevant to, but not dispositive of, the ‘under color of law’ analysis is whether a law enforcement officer was on duty and in official uniform at the time of the torturous conduct.” “Another relevant consideration in determining whether an official’s conduct is under color of law is whether the official threatened and had the ability to retaliate through governmental channels if the victim reported the conduct to authorities.”

The full text of Matter of J-G-R- can be found here:

https://www.justice.gov/eoir/page/file/1592801/download

Eleventh Circuit Finds that Money Laundering Convictions are not CIMTs

The Eleventh Circuit has determined that several federal money laundering statutes do not meet the definition of crimes involving moral turpitude. The court also applied the categorical approach in denaturalization proceedings.

The full text of United States v. Lopez can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/202112709.pdf

Tenth Circuit Affirms that PFR of Reinstatement Order is Timely if Filed After Completion of Withholding Only Proceedings

The Tenth Circuit has reaffirmed that a petition for review (PFR) challenging a reinstatement order is timely if it is filed within 30 days of the Board of Immigration Appeals’ decision at the end of the ensuing withholding/CAT only proceeding. The PFR need be filed within 30 days of ICE’s issuance of the reinstatement order.

The full text of Arostegui-Maldonado v. Garland can be found here:

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110897188.pdf

Ninth Circuit Clarifies Standards for Motions to Reopen

The Ninth Circuit has determined that a noncitizen seeking to reopen to pursue relief from removal must show a reasonable likelihood of success on the relief to obtain reopening. The “reasonable likelihood” standard requires a petitioner to show more than a mere possibility she will establish a claim for relief, but it does not require the petitioner to demonstrate she is more likely than not to prevail. “In contrast, the ‘would likely change’ standard requires a petitioner to establish that it is at least more probable than not that the new evidence would change the outcome of the claim. The ‘would likely change’ standard plainly places a heavier burden on a petitioner than the ‘reasonable likelihood’ standard. Today, we clarify any possible confusion in our case law and reaffirm that the ‘reasonable likelihood’ standard applies to decisions made on the prima facie ground, and the ‘would likely change’ standard applies to decisions made on the discretionary ground.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/08/08/20-71977.pdf

Ninth Circuit holds that Motion to Reopen Related to Previously-Filed Relief Need not be Accompanied by Application

The Ninth Circuit has determined that a motion to reopen that adds new circumstances to a previously considered application for relief need not be accompanied by an application for relief.

The full text of Reyes Corado can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/08/11/18-70225.pdf

Eighth Circuit Finds that Illinois Aggravated Vehicular Hijacking is Crime of Violence

The Eighth Circuit has determined that an Illinois conviction for aggravated vehicular hijacking is a crime of violence because the statute does not encompass reckless acts.

The full text of United States v. Pulley can be found here:

http://media.ca8.uscourts.gov/opndir/23/08/222858P.pdf

Seventh Circuit Confirms that Pardon has no Effect on Inadmissibility

The Seventh Circuit has affirmed that a pardon from a state governor does not impact any inadmissibility consequences of the pardoned crime.

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

http://media.ca7.uscourts.gov/cgi-bin/OpinionsWeb/processWebInputExternal.pl?Submit=Display&Path=Y2023/D08-08/C:22-1086:J:Scudder:aut:T:fnOp:N:3086220:S:0

Fifth Circuit Finds Asylum Applicant Must Demonstrate Social Distinctiveness of her Nuclear Family

The Fifth Circuit has determined that an asylum applicant has the obligation to provide some evidence of the social distinction of her nuclear family in her society when relying on that family as a particular social group for asylum purposes. The Court was also critical of the Biden Administration’s failure to promulgate proposed regulations on family-based particular social groups.

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

https://www.ca5.uscourts.gov/opinions/pub/22/22-60501-CV0.pdf

First Circuit Finds that Location of Administrative Control Court Defines Judicial Venue

The First Circuit has determined that the location of the administrative control court (i.e., where the charging document is filed) - absent an order for change of venue - dictates in which federal circuit appellate review lies.

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

http://media.ca1.uscourts.gov/pdf.opinions/22-1767P-01A.pdf

First Circuit Finds BIA has Authority to Sua Sponte Reopen for NACARA Relief

The First Circuit has determined that the Board of Immigration Appeals can use its sua sponte authority to reopen for a non-citizen to pursue NACARA relief, rejecting the argument that a motion to reopen under 8 C.F.R. § 1003.43(e)(1) is the only available means for reopening for NACARA relief.

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

http://media.ca1.uscourts.gov/pdf.opinions/22-1599P-01A.pdf

Eleventh Circuit Finds no Jurisdiction to Review Revocation of I-130

The Eleventh Circuit has determined that a federal court lacks jurisdiction to review the agency’s revocation of an approved Form I-130.

The full text of Bouarfa v. Secretary of DHS can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/202212429.pdf

Eleventh Circuit Finds that Litigant Forfeited Citizenship Claim

The Eleventh Circuit has determined that a litigant who withdrew his appeal and ask to be deported forfeited his right to judicial review of his citizenship claim.

The full text of Clement v. U.S. Attorney General can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/202113382.pdf

Ninth Circuit Finds that Appointment and Removal of Immigration Judges Complies with Constitution

The Ninth Circuit has determined that the appointment and removal process for Immigration Judges - who the court determined are inferior officers - complies with the constitution.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/07/27/18-71987.pdf

An amended decision can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/08/24/18-71987.pdf

Eighth Circuit Finds that Iowa Conviction for Domestic Abuse Assault with the Use or Display of a Weapon is a Crime of Violence

The Eighth Circuit has determined that an Iowa conviction for domestic abuse assault with the use or display of a weapon is a crime of violence because the display of a dangerous weapon requires at least the threatened use of physical force, and there is no distinction between the “use” and the “display” of a dangerous weapon under Iowa law.

The full text of U.S. v. Conrad can be found here:

http://media.ca8.uscourts.gov/opndir/23/07/223275P.pdf

Eighth Circuit Evaluates Sentencing Consequences of Missouri Resisting Arrest Conviction

The Eighth Circuit has reaffirmed that a Missouri statute criminalizing resisting arrest is divisible as compared to the definition of a crime of violence. “Our decisions concluded that resisting arrest by using or threatening the use of force is a ‘violent felony’ under the Armed Career Criminal Act, but that resisting arrest by fleeing is not a ‘crime of violence’ under the sentencing guidelines.”

The full text of U.S. v. Brown can be found here:

http://media.ca8.uscourts.gov/opndir/23/07/222308P.pdf

Fourth Circuit Finds that Former Asylee Cannot Apply for Asylee Adjustment

Deferring to the agency’s decision in Matter of T-C-A-, the Fourth Circuit has determined that a non-citizen whose asylum status has been terminated cannot apply for adjustment of status as an asylee. “Since Cela’s asylum status had been terminated at the time he sought to adjust to lawful permanent resident status, he was not eligible for that adjustment.”

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

https://www.ca4.uscourts.gov/opinions/221322.P.pdf

Eighth Circuit Finds Nebraska Shoplifting Conviction is not Theft Offense

The Eighth Circuit has determined that the Nebraska shoplifting statute has a broader mens rea than the generic definition of a theft-related aggravated felony. “Because an offender can be convicted under Nebraska’s shoplifting statute when he acts with an intent not encompassed by a generic theft offense, we hold that the statute sweeps more broadly than the generic federal offense.”

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

http://media.ca8.uscourts.gov/opndir/23/07/222508P.pdf

Eighth Circuit Finds that Iowa Conviction for Committing Willful Injury is COV

The Eighth Circuit has determined that an Iowa conviction for committing willful injury - even the less serious offense that requires mere injury, as opposed to serious injury - is a crime of violence. “Committing willful injury in Iowa requires an unjustified ‘act’ that is ‘intended to cause serious injury.’ The fact that the statute requires an intent to cause harm to another person necessarily means that anyone who violates it has used ‘physical force against the person of another.’”

The full text U.S. v. Cungtion, Jr. can be found here:

http://media.ca8.uscourts.gov/opndir/23/07/221675P.pdf