Ninth Circuit Abrogates "on the Merits" Exception to Criminal Alien Bar

The Ninth Circuit has determined that it is precluded by the “criminal alien bar” from reviewing the denial of procedural motions (in this case, a motion to remand and a motion to administratively close proceedings).

“With the benefit of Nasrallah’s guidance, we hold that in challenging the denials of her motions for remand and administrative closure, Tapia Coria asks us to review agency decisions that merge with the final order of removal. Each motion, if granted, would ‘affect the validity of the final order of removal’ or disturb the final order of removal.’” The court recognized that it was creating a circuit split with the Fourth Circuit’s decision in Williams.

“Courts must first determine whether the denial of relief raised in a petition for review is part of the final order of removal or merges with it. If so, and if the petitioner is removable based on a conviction covered by § 1252(a)(2)(C), then we lack jurisdiction to review factual challenges to the final order of removal and may only review constitutional claims or questions of law under § 1252(a)(2)(D). But if the denial of relief is not considered part of the ‘final order of removal, as is true with a CAT order, we can review factual challenges notwithstanding a criminal conviction that would otherwise implicate § 1252(a)(2)(C).’”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/03/19/22-970.pdf

The amended decision can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/16/22-970.pdf

Fourth Circuit Denies As Applied Challenge to Detention Scheme

The Fourth Circuit has affirmed the denial of habeas relief to a non-citizen subject to on-going withholding-only proceedings, finding that his removal was still reasonably foreseeable, despite the length of his detention. The court also found that due process did not require the immigration court to provide him with another bond hearing.

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

https://www.ca4.uscourts.gov/opinions/227365.P.pdf

Fourth Circuit Finds VA Sexual Battery Statute Divisible

The Fourth Circuit has determined that Virginia’s sexual battery statute is divisible between non-consensual acts and acts committed against a person restrained by the criminal justice system. The portion of the statute criminalizing non-consensual acts constitutes a crime involving moral turpitude. The court additionally found that a Virginia conviction for solicitation of a minor under age 15 is a crime involving moral turpitude because the statute includes a requirement that the defendant has reason to believe he is soliciting someone under age 15.

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

https://www.ca4.uscourts.gov/opinions/231238.P.pdf

Second Circuit Defers to BIA's Definition of Conviction

The Second Circuit has deferred to the BIA’s decision in Matter of Wong addressing what minimal constitutional protections must be accorded to a defendant for the proceeding to result in a conviction for immigration purposes. The court further determined that the “minimum constitutional protections” test espoused in Wong could be applied retroactively. Finally, the court concluded that a second-degree forgery conviction in New York categorically matches the definition of a crime involving moral turpitude. The court rejected the petitioner’s void-for-vagueness challenge to the term “crime involving moral turpitude.”

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

https://ww3.ca2.uscourts.gov/decisions/isysquery/dcca81a9-a8f1-4254-bef7-5aee7c442985/23/doc/22-6185_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/dcca81a9-a8f1-4254-bef7-5aee7c442985/23/hilite/

Ninth Circuit Rejects Mental Health-Based Asylum Claim

The Ninth Circuit has determined that “Mexicans with mental health disorders characterized by psychotic features who exhibit erratic behavior” is not a cognizable particular social group for asylum purposes.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/03/01/21-1244.pdf

Eighth Circuit Affirms Serious Non-Political Crime Finding

The Eighth Circuit has affirmed a finding that an asylum applicant who transported guns and drugs for MS-13 committed a serious non-political crime.

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

http://media.ca8.uscourts.gov/opndir/24/03/223565P.pdf

Seventh Circuit Defines Timeline for Judicial Review of Reinstatement Orders

The Seventh Circuit has determined that a reinstatement order is final for judicial review at the completion of withholding only proceedings.

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

https://media.ca7.uscourts.gov/cgi-bin/OpinionsWeb/processWebInputExternal.pl?Submit=Display&Path=Y2024/D02-27/C:21-2284:J:St__Eve:aut:T:fnOp:N:3174081:S:0

Fifth Circuit Finds Applicant Ineligible for Adjustment Due to Revoked Parole

The Fifth Circuit has determined that a non-citizen is ineligible for adjustment of status through his U.S.-citizen wife because his parole was revoked by the service of a Notice to Appear. Moreover, he had previously conceded his inadmissibility under § 1182(a)(7)(A)(i)(I), leading the court to conclude he remained .an applicant for admission, ineligible for adjustment of status.

The full text of this incredibly incorrect decision (Membreno-Rodriguez v. Garland) can be found here:
https://www.ca5.uscourts.gov/opinions/pub/23/23-60022-CV0.pdf

The Fifth Circuit Finds that Texas Conviction for Possessing a Synthetic Cannabinoid is Controlled Substance Offense

The Fifth Circuit has determined a respondent did not establish a realistic probability that a Texas conviction for possessing a synthetic cannabinoid criminalizes substances not found in the federal controlled substances schedules. Moreover, the court determined that a non-citizen cannot raise new state law authorities on appeal to meet the realistic probability test because the failure to raise those decisions before the agency renders the arguments unexhausted.

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

https://www.ca5.uscourts.gov/opinions/pub/22/22-60555-CV0.pdf

Ninth Circuit Finds that Arizona Armed Robbery Conviction is Theft-Related Aggravated Felony

The Ninth Circuit has determined that an Arizona conviction for armed robbery is a theft-related aggravated felony. The court concluded that “to establish armed robbery, the state must prove that the defendant, while armed with a real or simulated deadly weapon, (1) took property from a person or his immediate presence (2) against that person’s will (3) using or threatening force with the coexistent intent to take the property.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/02/14/23-9.pdf

BIA Finds no Jurisdiction to Review Withdrawn I-751

The Board of Immigration Appeals has determined that an Immigration Judge has no authority to review a withdrawn I-751. In this case, the respondent and his ex-wife filed a joint I-751, but his wife subsequently withdrew it. Although the respondent claimed she was coerced to do so, the Board determined there was no proof of coercion, such as an affidavit from the ex-wife. “Because the respondent has presented insufficient evidence to substantiate this claim, we do not need to decide whether the Immigration Judge had the authority to review his claim that the Form I-751 petition was withdrawn due to coercion.”

The full text of Matter of Bernardo can be found here:

https://www.justice.gov/d9/2024-02/4072.pdf

BIA Addresses Insufficiency of a PCR Order

The Board of Immigration Appeals has addressed the insufficiency of a state court vacatur order, noting that the order did not specify the statute for vacatur, did not reference the allegations in the motion to vacate, and did not include any factual findings to support the vacatur order. The motion to vacate itself was not accompanied by any evidentiary support, such as sworn affidavits.

“Where a State court order granting a respondent’s motion to vacate a conviction does not indicate the reason for the vacatur, and there is no other basis in the record to independently establish the reason, the respondent has not satisfied his burden to show that the court vacated his conviction because of a substantive or procedural defect in his criminal proceedings. The bare fact that the State court granted the respondent’s motion does not establish the State court’s reason for doing so. Because the respondent has not demonstrated that the convictions underlying his removability were vacated because of a procedural or substantive defect in his criminal proceedings, we will deny his motion to reopen and terminate.”

The Board noted in a footnote that there is a split in authority over whether DHS or the respondent bears the burden of proving the basis of a vacatur in the motion to reopen context for a deported lawful permanent resident.

The full text of Matter of Azrag can be found here: https://www.justice.gov/d9/2024-02/4073.pdf

BIA Finds I-261 to be Inappropriate Remedy for Incomplete NTA

The Board of Immigration Appeals has determined that the Department of Homeland Security cannot remedy a putative Notice to Appear (one missing the date and time of the initial hearing) by filing a Form I-261.

The full text of Matter of Aguilar Hernandez can be found here:

https://www.justice.gov/d9/2024-01/4071.pdf

BIA Finds IJ Should not Have Dismissed Case with Pending I-751 Review

The Board of Immigration Appeals has determined that an Immigration Judge should not grant a motion to dismiss by the Department of Homeland Security when the respondent has the right to review of a denied I-751 application.

The full text of Matter of Bernardo can be found here:

https://www.justice.gov/d9/2024-02/4072.pdf

Eleventh Circuit Rejects Equal Protection Challenge to Citizenship Claim

The Eleventh Circuit has rejected a litigant’s challenge to a derivative citizenship claim, finding that even under a gender-neutral revision to the statute, he would not be entitled to citizenship.

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

https://media.ca11.uscourts.gov/opinions/pub/files/202210416.op2.pdf

Eighth Circuit Finds Iowa Domestic Abuse Conviction is not Crime of Violence

The Eighth Circuit has determined that an Iowa domestic abuse conviction is not a crime of violence because it criminalizes simple assault.

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

http://media.ca8.uscourts.gov/opndir/24/01/231048P.pdf

Fourth Circuit Finds Mixed Credibility Finding to be Permissible

The Fourth Circuit has determined that an immigration judge may render a mixed credibility determination —deeming an applicant’s testimony credible as to one subject but not another. “In the case of a mixed credibility finding, a presumption of credibility should be applied by the Board on appeal concerning the portion of testimony not explicitly determined incredible.”

The full text of Ayala-Osegueda v. Garland can be found here: https://www.ca4.uscourts.gov/opinions/221707.P.pdf

Fourth Circuit Finds that Adjustment Applicant Must Prove Admissibility by Clear and Convincing Evidence

The Fourth Circuit has affirmed that an applicant for adjustment of status must prove her admissibility by clear and convincing evidence. Nonetheless, in a footnote, the court recognized that the applicant in this case was the mother of a military servicemember and worked in an important profession, and suggested that the Department of Justice may wish to revisit its position in the case. The applicant had presented significant evidence that someone else had likely checked the “US citizen” box on her I-9.

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

https://www.ca4.uscourts.gov/opinions/222114.P.pdf

First Circuit Addresses Family-Based Social Group Claim

The First Circuit has remanded an asylum application, noting that there is was no other basis in the record for the persecution alleged than family ties. “The fact that the cattle thieves were motivated in targeting Pineda-Maldonado in part to protect themselves, because they feared Pineda-Maldonado would retaliate against them, is not disputed by the parties. Butt hat fact does not in and of itself suffice to end the inquiry into whether family status was ‘a central reason’ for their having targeted him, any more than the fact that the cattle thieves sought money in targeting Pineda-Maldonado due to his father's debt could end such an inquiry.”

The full text of Pineda-Maldonado v. Garland can be found here: http://media.ca1.uscourts.gov/pdf.opinions/20-1912P-01A.pdf

BIA Finds that Pre-trial Release does not Preclude Civil Immigration Detention

The Board of Immigration Appeals (Board) has determined that the agency is not estopped from detaining a non-citizen in immigration custody without bond simply because a magistrate released him on pre-trial bail in a federal criminal proceeding. The Board noted that the criminal proceedings, the government bears the burden of proving a defendant is a flight risk or danger to the community to justify detention without bail, while in the immigration context, the non-citizen bears the burden of proving he is not a flight risk or danger to the community to justify the granting of bond.

The full text of Matter of Panin can be found here:

https://www.justice.gov/d9/2024-01/4070.pdf