Third Circuit Finds that PA Felony Eluding Statute is Divisible

The Third Circuit has determined that a Pennsylvania statute criminalizing eluding the police as a felony is divisible between three grading factors. The Court further found that the third grading factor could be violated by a driver who recklessly flees or attempts to elude law enforcement in an attempt to transport himself or another person to a hospital would still violate the statute. This conduct is not reprehensible, and thus, the statute is not a categorical match to the definition of a crime involving moral turpitude.

The full text of Ndungu v. Attorney General can be found here: https://www2.ca3.uscourts.gov/opinarch/202562p.pdf

Third Circuit Finds that Jurisdiction Stripping Provision in 8 USC 1252 Applies Outside Removal Proceedings

The Third Circuit has determined that the jurisdiction stripping provisions in 8 U.S.C. 1252(a)(2)(B) apply to appeals that arise outside of the petition for review process. Accordingly, the court found that federal courts lacked jurisdiction to review a challenge under the Administrative Procedure Act to USCIS’s policy of holding an adjustment of status application in abeyance when the priority date retrogresses during the pendency of hte permanent residency application.

The full text of Geda v. United States Citizenship and Immigration Services can be found here:

https://www2.ca3.uscourts.gov/opinarch/232195p.pdf

First Circuit Remands CAT Claim

The First Circuit has remanded a Convention Against Torture case, finding that the agency applied an erroneous standard by relying solely on “the fact that the government has taken some responsive action to combat private violence.”

“More to the point, looking only to whether a government takes some responsive action to prevent private violence fails to account for instances where a foreign government takes some measures but still does not satisfy its legal duty to intervene. Sometimes, despite having taken some action, a government may still have a legal responsibility to do more.. That is why we require the agency to address whether the government's actions demonstrate that it will adequately meet its legal responsibility to intervene. Addressing this part of the inquiry is especially important where a government's preventative actions have been ineffective.”

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

https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1412P-01A.pdf

Ninth Circuit Issues Amended Decision on Reviewability of Bond Denial

The Ninth Circuit has issued an amended decision in Martinez v. Clark, finding that it has jurisdiction to review the agency’s determination that a non-citizen is a danger to the community under an abuse of discretion standard. The court concluded that the dangerousness determination is a mixed question of fact and law.

The full text of Martinez v. Clark can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/27/21-35023.pdf

First Circuit Addresses Agency's Settled Course of Granting Unopposed Motions to Remand for Adjustment

The First Circuit has recognized that the Board of Immigration Appeals (BIA) has a settled course of adjudication of granting unopposed motions to remand for non-citizens to seek adjustment of status.

“The question is whether there is a ‘settled course"‘ by the BIA of routinely granting such unopposed remand requests so that petitioners in removal proceedings may proceed for an adjustment of status. As a matter of law, it is arbitrary and capricious for the BIA to suddenly and inexplicably depart from established policies, including its own precedents. Badose asserts that this is exactly what happened here. As noted, the government has not refuted that proposition.”

The court also noted that the BIA is prohibited from engaging in factfinding in connection with a motion to reopen, and not only in its adjudication of an appeal.

“On the record before us, we can only conclude that the BIA improperly denied Badose's unopposed remand motion both by arbitrarily deviating from a standard course of practice and by improperly engaging in factfinding in violation of 8 C.F.R. § 1003.1(d)(3). Badose is therefore entitled to a remand to the IJ so that he can present his case for adjustment of status based on his marriage.”

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

https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/23-1156P2-01A.pdf

First Circuit Finds no Jurisdiction to Review NIW Revocation

The First Circuit has determined that a federal court lacks jurisdiction to review the revocation of an approval of a National Interest Waiver and an I-140 petition.

The full text of Guedes v. Mayorkas can be found here:

https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1228P-01A.pdf

Ninth Circuit Finds that Washington Conviction for Possession of a Stolen Vehicle is an Aggravated Felony

The Ninth Circuit has determined that a Washington conviction for possession of a stolen vehicle qualifies as an aggravated felony if accompanied by a sentence of at least one year of imprisonment.

“Washington’s stolen vehicle statute also requires actual knowledge that the vehicle was stolen. The statute requires not only that the defendant ‘knowingly’ possess the stolen property but also have a state of mind of ‘knowing that it has been stolen.’” “And since actual knowledge requires an intent to deprive the owner of his property, the state statute also matches the generic offense’s intent requirement.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/23/21-1096.pdf

Ninth Circuit Addresses BIA's Reliance on Prior Adverse Credibility Determination to Deny Motion to Reopen

The Ninth Circuit has clarified when the Board of Immigration Appeals may consider a prior adverse credibility determination in its assessment of a motion to reopen.

“In the Ninth Circuit, we recognize that immigration judges (‘IJs’) —but not the Board of Immigration Appeals (‘BIA’)—have the prerogative to answer that question by using the maxim falsus in uno, falsus in omnibus (‘false in one thing, false in everything’). Here, however, the BIA used that prerogative to discredit petitioner Ranjit Singh’s affidavit in support of his motion to reopen because Singh had been found not credible by an IJ in his prior removal proceedings, but as to facts quite unlike those he asserted in his motion to reopen. We hold that such blanket reliance on a prior adverse credibility determination that was based on dissimilar facts contravenes the law of the Ninth Circuit.”

“To synthesize our precedents, an item of evidence already found not credible at an alien’s removal proceedings remains presumptively not credible at the motion-to-reopen stage, unless that item of evidence is effectively rehabilitated by adequate proffer of proof. Likewise, an item of fact unproven at the alien’s removal proceedings remains unproven—and the BIA is free to disregard it—unless the alien effectively corroborates it with new evidence submitted in support of his motion to reopen. When faced with a motion to reopen filed by an alien who was tarnished by an adverse credibility finding from previous removal proceedings, the BIA should first ascertain the scope of that adverse credibility finding. Then, the BIA should discern what facts were tainted by the alien’s discredited testimony and were not established by other evidence. If those facts are again solely evidenced by the alien’s affidavit at the motion-to-reopen stage, then the BIA is free to discredit them, not through the application of the falsus maxim, but because it would defy common sense to require the BIA to accept previously rejected facts when proffered anew based solely on the discredited words of the same witness.”

“If a factual allegation was not presented at all in the alien’s removal proceedings, the BIA must accept it as true unless it is inherently unbelievable. The BIA cannot disregard the alien’s new factual allegations simply because the alien was previously found not credible as to other different factual allegations.“

The full text of Singh v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/24/23-2065.pdf

Ninth Circuit Finds Jurisdiction to Review Extraordinary Circumstances for VAWA Motion to Reopen

The Ninth Circuit has determined that it has jurisdiction to review the agency’s determination that a non-citizen had not established extraordinary circumstances that would justify tolling the one-year filing deadline for a motion to reopen based on eligibility for VAWA-related relief.

The full text of Magana Magana v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/26/23-1887.pdf

An amended decision can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2025/02/19/23-1887.pdf

Ninth Circuit Finds that Montana Conviction for Partner or Family Member Assault is not Misdemeanor Crime of Domestic Violence under Federal Criminal Law

The Ninth Circuit has determined that a Montana conviction for partner or family member assault is not a misdemeanor crime of domestic violence under federal criminal law. In so doing, the court recognized that the statute criminalizes infliction of emotional abuse, and thus, does not require the use or attempted use of physical force. “Taken together, these authorities show that a person can violate section 45-5-206(1)(a) through any form of communication that inflicts bodily injury in the form of emotional anguish. The infliction of emotional anguish does not require the use of physical force as that term is defined by federal law.”

Although this analysis arose in the criminal context, the immigration law definition of a crime of violence and a crime of domestic violence both require the use or attempted use of physical force. Indeed, the federal courts have acknowledged that the level of force required to meet the definition of a misdemeanor crime of domestic violence is lower than the degree of force required for a crime of violence or a crime of domestic violence. Thus, this analysis should be sufficient to demonstrate that a Montana conviction for partner or family member assault does not trigger the applicable immigration consequences for those offenses.

The full text of USA v. DeFrance can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/30/23-2409.pdf

Seventh Circuit Construes Exceptional and Extremely Unusual Hardship

The Seventh Circuit has determined that the agency’s definition of exceptional and extremely unusual hardship to qualifying relatives is not entitled to any deference. Further, the Court construed “exceptional and extremely unusual hardship” as requiring hardship sustained by a deported alien’s qualifying relatives that’s significantly different from or greater than the hardship that a deported alien’s family normally experiences.

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

https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0274p-06.pdf

Fifth Circuit Finds Affidavit Alone Insufficient to Establish Lack of Notice

The Fifth Circuit has determined that a non-citizen’s declaration alone is not sufficient to compel the agency to reopen a removal order based on lack of receipt of the notice of hearing.

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

https://www.ca5.uscourts.gov/opinions/pub/21/21-60195-CV0.pdf

Fifth Circuit Applies no Deference to BIA's Hardship Determination

The Fifth Circuit has affirmed the agency’s hardship finding in a cancellation of removal case, finding that even if it accorded that determination no deference, the applicant had not established that his U.S.-citizen son would suffer exceptional and extremely unusual hardship without him.

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

https://www.ca5.uscourts.gov/opinions/pub/23/23-60100.CV0.pdf

Fourth Circuit Confirms AG's Authority to Appoint Temporary Board Members

The Fourth Circuit has confirmed that the Attorney General has an independent statutory authority to appoint (and renew the appointment of) temporary members of the Board of Immigration Appeals. This authority is not affected by the regulation prescribing the authority of the Director of the Executive Office for Immigration Review to appoint temporary Board members. Finally, the Fourth Circuit construed that regulation as permitting renewable appointments by the Director.

The full text of Salomon-Guillen v. Garland can be found here: https://www.ca4.uscourts.gov/opinions/231723.P.pdf

SCOTUS Determines that Revocation of Visa Petition Approvals are not Challengeable in Federal Court

The Supreme Court has determined that federal courts lack jurisdiction to review the agency’s revocation of an approved visa petition. In so doing, the Court indicated that the revocation statute defines a purely discretion decision by the agency - that the agency is not obligated to revoke the approval of a petition that was approved in error.

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

https://www.supremecourt.gov/opinions/24pdf/23-583_onjq.pdf

BIA Applies Circumstance-Specific Approach to Money Laundering Offense

The Board of Immigration Appeals has determined that for the purpose of assessing whether an offense constitutes a money laundering aggravated felony, the circumstance-specific appproach applies to the requirement that the “amount of the funds exceeded $10,000.”

The full text of Matter of Dominguez Reyes can be found here:

https://www.justice.gov/d9/2024-12/4083.pdf

Eighth Circuit Finds that MN Third Degree Criminal Sexual Conduct does not Match Federal Definition of Rape

The Eighth Circuit has determined that Minnesota’s crime of third-degree criminal sexual conduct does not match the generic definition of rape because the Minnesota crime includes digital or mechanical penetration, which are outside the generic definition of rape.

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

https://ecf.ca8.uscourts.gov/opndir/24/12/231069P.pdf

CA Appellate Court Finds 1473.7 does not Apply to Sentence Deferral Program

The Appellate Division of the Superior Court has determined that defendants who take advantage of the Sentence Deferral Program cannot later seek relief under Penal Code section 1473.7.

“The threshold question in deciding the propriety of the trial court’s ruling is whether defendant had a conviction or sentence when he made his motion. Defendant was never sentenced so we turn to whether he sustained a conviction within the meaning of section 1473.7, subdivision (a). Under well-settled law, defendant sustained a conviction when the trial court accepted and entered his plea of no contest.3 Nonetheless, section 1473.7 relief was inapplicable because, at the time the motion was litigated, defendant’s plea (or “conviction”) no longer existed. In other words, there was no conviction to ‘vacate.’”

“While the surviving ramifications for the defendant who secures a section 1203.4 dismissal are indicative of a conviction, the same cannot be said for a dismissal under the Sentence Deferral Program. The only exception to complete nullification of the defendant’s criminal proceeding upon dismissal pursuant to the Sentence Deferral Program is (a) the Department of Justice may disclose the arrest ‘in response to a peace officer application request’ and (b) successful completion of the Sentence Deferral Program ‘does not relieve [the defendant] of the obligation to disclose the arrest in response to a direct question contained in a questionnaire of application for a position as a peace officer . . . .’ In other words, the target of potential adverse consequences is strictly limited to a narrow class of defendants who seek employment as a peace officer. For all intents and purposes, the dismissal of a case pursuant to section 1001.96 renders the conviction a complete nullity. A prerequisite for section 1473.7 relief is the existence of a conviction or sentence. Defendant had neither at the time he litigated his motion; because he successfully completed section 1001.94 diversion, his plea was withdrawn, his case was dismissed, and there was no conviction to vacate. Defendant was not eligible for section 1473.7 relief.”

The full text of People v. Kuzmichey can be found here:

http://sos.metnews.com/sos.cgi?1124//JAD24-08

BIA Applies Matter of Fernandes Retroactively

The Board of Immigration Appeals has determined that its requirement that a respondent object to an incomplete Notice to Appear before the close of pleadings is not a new rule, and as such, the decision in Matter of Fernandes applies retroactively.

The full text of Matter of Larios-Gutierrez de Pablo and Matter Pablo-Larios can be found here:

https://www.justice.gov/d9/2024-11/4082.pdf

Ninth Circuit Addresses Political Opinion Claim of Salvadoran Pastor

The Ninth Circuit has addressed the asylum claim of a Salvadoran pastor who refused to try to influence his congregation to vote for the FMLN party. “The record also compels us to conclude that Aleman satisfies the second element: the FMLN attacked Aleman because of his political-opinion-based refusal to use his role in the church to influence El Salvadoran politics.”

“The IJ’s determination that the attack on Aleman was not inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity because the FMLN had lost in local elections five days before the attack is not supported by substantial evidence. The IJ recognized that the torture Aleman suffered was at the hands of FMLN agents. Aleman was attacked five days after the FMLN lost the local election and was asked at gunpoint why he had not accepted the FMLN’s proposal. He asserts that the FMLN still controlled local government in Lourdes Colon immediately after the elections that displaced them, and supports this assertion with unrebutted testimony. In short, the IJ’s finding that no public official was involved in the torture because the FMLN had lost in the local election five days prior lacks support and is contradicted by the record.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/11/13/23-114.pdf

The amended opinion can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/02/18/23-114.pdf