Eighth Circuit Rejects "Guatemalan Children who are Witnesses to Gang Crime” as a PSG

The Eighth Circuit has rejected "Guatemalan children who are witnesses to gang crime” as a particular social group for asylum purposes. “The BIA rejected this proposed social group for lack of particularity because the term ‘children’ is ‘vague and amorphous.’ Indeed, ‘children’ could mean minor children of Guatemalan nationals, or it could mean individuals of any age who were born of Guatemalan parents. If Pacheco-Mota intended the former definition, he does not fall within its scope—he was eighteen at the time of his first hearing before the IJ. If Pacheco-Mota intended the latter definition—any person of any age who is the child of Guatemalan parents—it is far too amorphous and overbroad to satisfy the particularity requirement. Pacheco-Mota’s proposed social group also fails for lack of social distinction. If we grant Pacheco-Mota the benefit of the broader definition of ‘children,’ the proposed social group is, in effect, all Guatemalan ‘witnesses to gang crime.’ Pacheco-Mota did not introduce evidence establishing that Guatemalan society ‘in general perceives, considers, or recognizes persons sharing the particular characteristic’ of gang crime witnesses as a distinct group.”

The full text of Pachecho-Mota v. Garland can be found here: http://media.ca8.uscourts.gov/opndir/23/10/223651P.pdf

Second Circuit Applies Sanchez Sosa to Motion to Remand

The Second Circuit has applied the factors outlined in Matter of Sanchez Sosa - which typically apply to a motion to continue due to a pending U visa application - to a motion to remand a case pending before the Board of Immigration Appeals.

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

https://ww3.ca2.uscourts.gov/decisions/isysquery/24e4fa91-b28a-4a67-a25f-47efb157f491/10/doc/21-6043_amd_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/24e4fa91-b28a-4a67-a25f-47efb157f491/10/hilite/

Third Circuit Finds PA DUI Statute Indivisible

The Third Circuit has determined that Pennsylvania’s DUI statute - which criminalizes driving under the influence of controlled substances - is overbroad and indivisible with respect to the identify of the substances the person was using. The court noted that under state law, jurors do not to unanimously agree what substance a defendant is under the influence of to convict.

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

https://www2.ca3.uscourts.gov/opinarch/203307p.pdf

BIA Finds that Conditional Parole does not Meet Requirements for Cuban Adjustment Act

The Board of Immigration Appeals has determined that a non-citizen who enters without inspection, is detained, placed in removal proceedings, and then released on conditional parole, is not eligible for permanent residency under the Cuban Adjustment Act.

The full text of Matter of Cabrera-Fernandez can be found here:

https://www.justice.gov/eoir/page/file/1595041/download

Ninth Circuit Confirms that Date of Commission of Inadmissible Offense Triggers Stop-Time Rule

The Ninth Circuit has confirmed that the date of commission of an inadmissible offense - not the date of conviction - is what triggers the stop-time rule for cancellation of removal.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/09/14/21-1098.pdf

Ninth Circuit Clarifies Standard for Family-Based PSG Nexus

The Ninth Circuit has clarified that a petitioner does not need to show that his relatives experienced persecution on the basis of their family membership in order to show that he himself might experience persecution as their relative. In this case, the petitioner expressed fear of persecution because of his family ties to members of an Autodefensora group, and the Immigration Judge found that the uncles who were members of the group had experienced persecution because of the membership in the group, not because of their family ties. The Ninth Circuit found that reasoning unpersuasive. “Thus, even assuming all of Blancas Hermosillo’s uncles were harmed only because of their Autodefensa memberships and not their familial relationships, that does not foreclose the possibility that Blancas Hermosillo will experience persecution as a relative of the Autodefensa leader and other members.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/09/14/18-71220.pdf

Fifth Circuit Finds "Business Owners" are not Valid PSG

The Fifth Circuit has determined that “business owners” are not a valid particular social group because they lack an immutable characteristic.

The full text of Munoz-De Zelaya v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/22/22-60505-CV0.pdf

Fourth Circuit Defers to BIA's Definition of Receipt of Stolen Property-Related CIMTs

The Fourth Circuit has deferred to the Board of Immigration Appeals’ determination that receipt of stolen property offenses constitute crimes involving moral turpitude (CIMT) if the defendant knows the property was stolen, even if the statutes do not require the defendant to intend to permanently deprive the owner of the property. The court further agreed that Virginia’s receipt of stolen property statute matches the definition of a CIMT. The court remanded because the Immigration Judge failed to advise the petitioner of the requirement of posting a voluntary departure bond before granting him voluntary departure.

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

https://www.ca4.uscourts.gov/opinions/221147.P.pdf

Third Circuit Defers to Finding that NJ Disorderly Persons Offenses are Convictions; Remands Gender-Based Asylum Claim

The Third Circuit has deferred to the agency’s determination in Matter of Wong that New Jersey disorderly persons offenses are convictions for immigration purposes. However, the court remanded for further analysis of whether the proposed social group of “Honduran women in a domestic relationship where the male believes that women are to live under male domination” is cognizable for asylum purposes.

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

https://www2.ca3.uscourts.gov/opinarch/221374p.pdf

Second Circuit Declines to Give Retroactive Effect to New York Sentencing Reform

The Second Circuit has declined to give retroactive effect to New York’s sentencing reform for misdemeanors (reducing the maximum sentence from 365 to 364 days of incarceration) in immigration proceedings.

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

https://ww3.ca2.uscourts.gov/decisions/isysquery/fe90911e-cb1d-4077-83eb-4b6a4ff087c6/9/doc/21-6380_complete_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/fe90911e-cb1d-4077-83eb-4b6a4ff087c6/9/hilite/

First Circuit Rules Conviction is Final During Collateral Attack

The First Circuit has determined that a conviction remains final for immigration purposes during the pendency of a post-conviction motion.

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

http://media.ca1.uscourts.gov/pdf.opinions/22-1695P-01A.pdf

BIA Clarifies the Standards for Asylum

The Board of Immigration Appeals has confirmed that a failure to report harm is not necessarily fatal to a claim of persecution if the respondent can demonstrate that reporting private abuse to government authorities would have been futile or dangerous. In addition, adjudicators should not expect a respondent to hide his or her sexual orientation if removed to his or her native country.

The full text of Matter of C-G-T- can be found here: https://www.justice.gov/eoir/page/file/1594626/download

Tenth Circuit Enforces MTR Deadline on a Weekend

The Tenth Circuit has determined that if a non-citizen is granted voluntary departure, and wishes to file a motion to reopen, he must do so by the 60th day of his voluntary departure period, even if that day falls on a weekend.

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

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110915861.pdf

An amended opinion can be found here: https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110969149.pdf

Ninth Circuit Reverses Finding that Oregon Conviction for Menacing Constituting Domestic Violence is a CIMT

The Ninth Circuit has determined that an Oregon conviction for menacing constituting domestic violence is not a crime involving moral turpitude because it does not require the actual infliction of fear. “A CIMT determination requires both an evil or malicious intent and the infliction of actual substantial harm on another. In Latter-Singh, we explained that the injury required under § 422—that the victim experience sustained fear from the threat—ensured that the statute criminalized only ‘conduct which results in substantial harm’ and excluded non-turpitudinous conduct such as ‘emotional outbursts’ or ‘mere angry utterances or ranting soliloquies, however violent.’” “The Oregon menacing statute prohibits words or conduct that is intended to place others in fear of imminent serious physical injury, but it does not require any intent to cause injury or that the victim experience any actual fear or injury as a result of the criminal act.”

The full text of Flores-Vasquez v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2023/08/31/20-73447.pdf

Ninth Circuit Finds PFR Filing Deadline is Non-Jurisidictional; Clarifies Deadline for Filing PFR of Reinstatement Order

The Ninth Circuit has determined that the 30-day deadline to file a petition for review of a removal order is not jurisdictional. The court has further determined that a petition for review filed within 30 days of the completion of reasonable fear proceedings (rather than the issuance of a reinstatement order) is timely.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/09/08/15-72821.pdf

Third Circuit Construes Polygamy Bar to Good Moral Character

The Third Circuit has construed the polygamy bar to good moral character to require the applicant to have knowingly entered into two marriages simultaneously. It does not require any evaluation of the applicant’s subjective beliefs regarding the practice of polygamy.

The full text of Al-Hasani v. Secretary of Department of Homeland Security can be found at: https://www2.ca3.uscourts.gov/opinarch/221603p.pdf

Second Circuit Casts Doubt on Reliability of Border Interviews

The Second Circuit has again cast doubt on the reliability of border interviews in a credibility determination. The court reiterated that “a border interview record is “‘inherently less reliable’ if (1) the record ‘merely summarizes or paraphrases the [noncitizen’s] statements’ rather than include ‘a verbatim account or transcript,” (2) “the questions asked are not designed to elicit the details of an asylum claim, or the . . . officer fails to ask follow-up questions that would aid the [noncitizen] in developing his or her account,’ (3) ‘the [noncitizen] appears to have been reluctant to reveal information to INS officials because of prior interrogation sessions or other coercive experiences in his or her home country,’ or (4) ‘the [noncitizen’s] answers to the questions posed suggest that the [noncitizen] did not understand English or the translations provided by the interpreter.’” An IJ is required to consider these factors before relying on a border interview for an adverse credibility determination if the record indicates the factors may be relevant.

The full text of Pomavilla-Zaruma v. Garland can be found here: https://www.ca2.uscourts.gov/decisions/isysquery/e263f00e-d425-4546-a54b-58a3fa367add/10/doc/20-3230_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/e263f00e-d425-4546-a54b-58a3fa367add/10/hilite/

DC Circuit Dismisses Unreasonable Delay Action for EB-5 Petitioners

The DC Circuit has dismissed an unreasonable delay action brought by EB-5 petitioners, finding that absent any credible allegations that USCIS is not following their own processing rules, allowing individual litigants to “skip the line” would not do anything to systemically improve processing times.

The full text of Da Costa v. Immigration Investor Program Office can be found here: https://www.cadc.uscourts.gov/internet/opinions.nsf/1620A36CDDF5CDD985258A0F00514CE6/$file/22-5313-2013134.pdf

Tenth Circuit Finds no Prejudice to Noncitizen Forced to Apply for Adjustment before IJ Rather than USCIS

The Tenth Circuit, in assuming that DHS violated certain regulations during their apprehension of a non-citizen, determined that the non-citizen did not suffer any prejudice by being required to litigate his adjustment of status application before an immigration judge rather than before U.S. Citizenship and Immigration Services.

“Mr. Aguayo emphasizes adjustment hearings in immigration court are procedurally different from non-adversarial USCIS interviews because a petitioner appears in front of the IJ ‘in a pastel jumpsuit’ and is ‘cross-examined in an adversarial courtroom by trained government lawyers, while in confinement apart from family.’ As a general matter, we are sympathetic to Mr. Aguayo’s contention. But whether the adversarial nature of immigration court potentially affected or actually affected the outcome of removal proceedings is not self-evident. As the government points out, Mr. Aguayo had ‘a full opportunity to present his case for adjustment of status before the IJ,’ and he does not argue ‘he would have submitted more or different evidence to USCIS than he presented to the IJ.’ The BIA correctly determined Mr. Aguayo ‘speculates’ but ‘provides no evidence that USCIS would have approved his adjustment application.’”

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

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110905064.pdf

Ninth Circuit Finds that Aiding and Abetting Hobbs Act Robbery is Crime of Violence

The Ninth Circuit has determined that aiding and abetting Hobbs Act robbery is a crime of violence because aiding and abetting is simply a form of accomplice liability and does not change that the statute involves the actual or threatened use of violent force.

The full text of United States v. Eckford can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2023/08/15/17-50167.pdf