Ninth Circuit finds that Federal Conviction for Second-Degree Murder is not Crime of Violence

The Ninth Circuit has determined that a conviction for second-degree murder under 18 U.S.C. §§ 1111 and 1153 is not a crime of violence under federal sentencing law because it can be committed recklessly (with a depraved heart mental state). Given the similar definitions of a crime of violence in the federal sentencing context and the immigration context, this case may have persuasive value in immigration litigation.

The full text of United State v. Begay can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/19/14-10080.pdf

Ninth Circuit Affirms Right to Counsel in Administrative Removal Proceedings for non-LPR Convicted of Aggravated Felony

The Ninth Circuit has determined that 8 U.S.C. § 1228, which governs expedited removal proceedings for noncitizens convicted of committing aggravated felonies, and through which non-citizens can request reasonable fear interviews, explicitly provides that non-citizens have the privilege of being represented, at no expense to the government, by counsel. As such, the Immigration Judge erred by not getting a waiver of the petitioner’s right to counsel during the review of a negative reasonable fear determination. The petitioner was not required to show prejudice from the violation of his statutory right to counsel to prevail on his due process claim.

The full text of Zuniga v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/20/16-72982.pdf

An amended opinion, published on December 26, 2019, can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/12/26/16-72982.pdf

Ninth Circuit Reverses Denial of Continuance

The Ninth Circuit has reversed the agency’s denial of a continuance to allow the petitioner to update his fingerprints, in light of his attorney’s erroneous advice that his fingerprints were still up-to-date, even though the judge had advised the petitioner at the prior hearing that he needed to update his fingerprints.

“[I]f an alien fails to provide updated fingerprints to DHS ‘because of an attorney,’ the alien’s reliance on the lawyer’s advice may constitute the requisite ‘good cause’ for a continuance under 8 C.F.R. § 1003.29. Here, because the lawyer’s bad advice post-dated the IJ’s instructions, Petitioner’s reliance on the later advice was especially reasonable. For example, the fingerprint requirements might have changed since his last hearing, including by lengthening the period during which fingerprints were valid or by allowing the California Department of Justice to send fingerprints to DHS. If the lawyer’s bad advice had preceded the IJ’s instructions, we might reach a different result.”

The full text of Pleitez-Lopez v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/23/16-73656.pdf

Ninth CIrcuit Finds that NV Conviction for Attempted Battery with Substantial Bodily Harm is Crime of Violence

The Ninth Circuit has determined that a Nevada conviction for attempted battery with substantial bodily harm is a crime of violence under the sentencing guidelines because it requires the defendant to have a specific intent both to commit battery and to bring about substantial bodily harm. Nevada defines “substantial bodily harm” as either “(1) [b]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ; or (2) [p]rolonged physical pain.”

“When someone intends to inflict prolonged pain, even relatively minor pain, it is highly improbable that they would choose to do so through the use of nonviolent force, which could easily fail to accomplish their goal. And for the same reason, it is equally improbable that Nevada prosecutors would be able to secure convictions for attempted battery with substantial bodily harm in cases in which the defendant tried to use only a touch or other nonviolent force.”

Given the similar definitions of a crime of violence under the sentencing guidelines and in immigration law, this decision could have persuasive impact in immigration litigation.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/26/18-10116.pdf

Ninth Circuit Defers to BIA's Whistleblowing Framework

The Ninth Circuit has deferred to the Board of Immigration Appeals’ (Board) decision in Matter of N-M-, in which the Board developed a three-factor test for application for asylum based on whistleblowing activities. The three factors are: (1) whether and to what extent the alien engaged in activities that could be perceived as expressions of anticorruption beliefs; (2) any direct or circumstantial evidence that the alleged persecutor was motivated by the alien’s perceived or actual anticorruption beliefs, and (3) evidence regarding the pervasiveness of government corruption, as well as whether there are direct ties between the corrupt elements and higher level officials.

The full text of Singh v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/27/15-73940.pdf

Ninth Circuit Withdraws Opinion in Lopez-Aguilar

The Ninth Circuit has granted a motion for panel rehearing and withdrawn its opinion in Lopez-Aguilar v. Barr, in which it determined that an Oregon third-degree robbery conviction is a theft offense.

My original blog post on Lopez-Aguilar can be found here:

http://www.sabrinadamast.com/journal/2019/4/27/ninth-circuit-finds-that-or-3d-deg-robbery-conviction-is-theft-offense

The order granting the motion for rehearing can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/29/17-73153.pdf

Ninth Circuit Finds that MN Aiding & Abetting Simple Robbery Conviction is Violent Felony

The Ninth Circuit has determined that a Minnesota conviction for aiding and abetting simple robbery is a violent felony under the Armed Career Criminal Act (ACCA) because the statute requires the defendant to use the amount of force necessary to overcome a victim’s resistance. Given the similarity between the definition of a violent felony under the ACCA and a crime of violence in the immigration context, this decision could have persuasive value in immigration litigation.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/03/17-35563.pdf

Ninth Circuit Rules on Rights of Derivative Beneficiaries to Receive Review of Denied I-829

The Ninth Circuit has determined that derivative beneficiaries of an alien entrepreneur in the immigrant investor program, who receive conditional legal permanent resident status, are entitled to the same review rights in removal proceedings as the alien entrepreneur of a denied petition to remove the conditions on their residence. As such, the agency erred by refusing the request of the daughter of the entrepreneur to review the denial of the petition to remove the conditions, when the entrepreneur had been removed in absentia, ant thus, could not make a request for review himself.

The full text of Mu v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/04/16-71292.pdf

Ninth Circuit Limits Circumstances in which Minor's OSC must be Served on Adult

The Ninth Circuit has limited the circumstances in which an Order to Show Cause served on a minor must also be served on a responsible adult. Previously, the court had held in Flores-Chavez v. Ashcroft that when immigration authorities detain a juvenile, and subsequently release the juvenile to a responsible adult, the Order to Show Cause must also be served on that adult. However, the court determined that the same rule does not apply when the minor was never detained, files for asylum, and is subsequently served with an Order to Show Cause.

“Nonetheless, the calculation differs here, and not just because Petitioner is slightly older than Flores-Chavez was. Petitioner himself set in motion the procedures leading to his hearing by filing an affirmative asylum application and by appearing before an asylum officer. These facts suggest that the risk of error in Petitioner’s situation is less than the risk of error in Flores-Chavez’ situation. More importantly, no adult ever entered an agreement with the government to assume responsibility for Petitioner. It is unclear with whom Petitioner lived at the time of his deportation hearing, including whether anyone at his residence was over the age of 18. It is equally unclear that notice to an adult living at his residence (if there was one) would have added any safeguards to the process, because we cannot know whether that adult would have been willing to take the kind of responsibility that was statutorily assigned in Flores-Chavez. Without researching the details of every minor’s situation, it is impossible to know whether a particular minor over the age of 14 resides with an adult and if so, whether serving the OSC on that adult will be any more effective in ensuring the minor’s attendance at the hearing than serving notice on the minor.” “Requiring the government to provide notice to a responsible adult living with a never-detained juvenile over the age of 14 assumes that there is such a person and that the person can be identified.” “Balancing all the factors, the burden on the government outweighs the interest of never-detained minors over the age of 14, at least those who have filed an affirmative request for relief.”

The full text of Cruz Pleitez v. Barr can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/18/15-72876.pdf

Ninth Circuit Finds that OR First-Degree Armed Robbery is not Violent Felony

The Ninth Circuit has determined that an Oregon conviction for first-degree armed robbery is not a violent felony under the Armed Career Criminal Act (ACCA) because the statute does not require the defendant to overcome resistance by the victim through the use of force, but rather, the victim need not feel much of anything during the offense. In addition, although the statute requires the defendant to possess a deadly weapon during the commission of the robbery, the statute does not require the use of the weapon or that the defendant make any representations about the weapon. As such, the court found that the mere possession of the deadly weapon did not amount to the threatened or attempted use of violent force.

The court also assumed that the statute is divisible between offenses where the defendant “Is armed with a deadly weapon” and offenses where the defendant “uses or attempts to use a dangerous weapon.” The records did not specify under which sub-statute the petitioner was convicted in this matter.

Given the similarity between the definition of a violent felony under the ACCA and the definition of a crime of violence in the immigration context, this case may have persuasive value in immigration litigation.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/19/18-35515.pdf

Eighth Circuit finds that Nebraska Theft by Receiving Stolen Property Conviction is CIMT

The Eighth Circuit has determined that a Nebraska conviction for theft by receiving stolen property is a crime involving moral turpitude because the statute requires an intent to permanently deprive the owner of the benefits of ownership of the property.

The full text of Reyna v. Barr can be found here:

https://ecf.ca8.uscourts.gov/opndir/19/08/181614P.pdf

Fifth Circuit Finds that TX Possession of Controlled Substance with Intent to Deliver is a Controlled Substance Violation

The Fifth Circuit has determined that a Texas conviction for possession of a controlled substance with intent to deliver is a controlled substance violation. In so doing, the court rejected the petitioner’s claim that the statute is overbroad because it includes offers to sell counterfeit drugs. Instead, the court found that a defendant must offer to sell a real drug, even if the actual drug delivered is counterfeit.

The full text of Olguin Padilla v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/18/18-60509.0.pdf

Fifth Circuit Defers to Matter of A-B-

The Fifth Circuit has deferred to the Attorney General’s decision in Matter of A-B-, and rejected a domestic violence-based protection claim. The court also determined that the injunction in Grace v. Whitaker only enjoins the application of Matter of A-B- in credible fear interviews, not in removal proceedings. Thus, the injunction poses no impediment to the Fifth Circuit evaluating the validity of the decision in the context of a removal proceeding.

The full text of Gonzalez-Veliz v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/18/18-60174-CV0.pdf

Fourth Circuit Affirms IJs' Authority to Administratively Close Proceedings

The Fourth Circuit has declined to follow Matter of Castro-Tum and has instead determined that Immigration Judges clearly have the authority to administratively close cases.

The full text of Zuniga Romero v. Barr can be found here:

http://www.ca4.uscourts.gov/Opinions/181850.P.pdf

Third Circuit Addresses Transmission of Citizenship by Father to Child Born out of Wedlock

The Third Circuit has determined that the laws governing transmission of citizenship to a child born out of wedlock to a U.S.-citizen father, whose mother is deceased, and who was born in a jurisdiction where the death of the mother legally precludes the father from legitimizing the child, violate equal protection.

Petitioner Jose Francisco Tineo was born in the Dominican Republic to unwed noncitizen parents who never married. His father moved to the United States and naturalized. His noncitizen mother soon after passed away. At the time, under the law of either his or his father’s residence or domicile—the Dominican Republic and New York—legitimation could only occur if his birth parents married. Under the immigration laws, a naturalized mother can transmit her citizenship to her out-of-wedlock child, regardless of whether the father is alive; whereas a naturalized father in the same position has the additional requirement of having to legitimate the child in order to transmit his citizenship. Thus, the petitioner in this matter was left unable to receive citizenship from his father because his mother was deceased, eliminating the only avenue of legitimation in the Dominican Republic.

The court declared that the petitioner is, in fact, a U.S. citizen, by applying the standards applicable to children born out of wedlock to U.S.-citizen mothers to his situation.

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

https://www2.ca3.uscourts.gov/opinarch/161461p.pdf

Third Circuit Remands for Application of Particularly Serious Crime Standard; Opportunity to Submit Corroborating Evidence

The Third Circuit has remanded a case in which the agency determined a fraud conviction resulting in losses to the victims in excess of $1,000,000 was a particularly serious crime without considering whether the elements of the offense bring the conviction within the ambit of a particularly serious crime. The court also determined that the Immigration Judge had not specified what corroborating evidence she believed was missing, nor given the applicant a chance to obtain that evidence. This error also required remand.

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

https://www2.ca3.uscourts.gov/opinarch/172444p.pdf

Second Circuit Construes Changed Circumstances Exception to One Year Filing Deadline for Asylum

The Second Circuit has determined that once an applicant for asylum demonstrates changed circumstances related to some aspect of her asylum claim - thus, excusing her from compliance with the one-year filing deadline - the immigration court must consider all aspects of her asylum claim, not just those related to the changed circumstances.

The full text of Yang v. Barr can be found here:

http://www.ca2.uscourts.gov/decisions/isysquery/8dbbcd48-6c17-44c0-906e-41e67cca61ea/13/doc/16-3478_complete_Amd_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8dbbcd48-6c17-44c0-906e-41e67cca61ea/13/hilite/

First Circuit Applies Lozada Requirements to Direct Appeal

The First Circuit has determined that the procedural requirements for an ineffective assistance of counsel claim outlined in Matter of Lozada apply to a claim of ineffective assistance of counsel made on direct appeal, as well as to ineffective assistance of counsel claims made in motions to reopen.

The full text of Ferreira v. Barr can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/18-2211P-01A.pdf

First Circuit Remands Motion to Reopen Filed by Indigenous Guatemalan

The First Circuit has remanded a motion to reopen filed by an indigenous Guatemalan seeking asylum. The court concluded that conditions had worsened for indigenous activists, and that the deportation of a military leader responsible for atrocities against the indigenous community (including several of the petitioner’s relatives) also constituted a changed condition.

The full text of Perez-Tino v. Barr can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/18-1860P-01A.pdf

CA Appellate Court Addresses Timeliness of 1473.7 Motion

The California Court of Appeal, Fourth Appellate Decision, has issued a decision addressing the due diligence requirements of a motion to vacate under Penal Code 1473.7. The trial court denied the motion without the defendant or counsel present, finding no diligence given a 12-year gap between the conviction and the filing of the motion to vacate. The appellate court disagreed, finding that the motion was filed 7 months after Penal Code 1473.7 was enacted, and one month after the appellate court advised the defendant (in a decision denying an appeal of the denial of an expungement in the case) that he could seek relief under 1473.7.

The appellate court also determined that the trial court should have appointed counsel for the defendant, who was unrepresented and detained at the time of the court’s hearing on the motion. “We construe amended section 1473.3 to provide the right to appointed counsel where an indigent moving party has set forth factual allegations stating a prima facie case for entitlement to relief under the statute.”

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

https://www.courts.ca.gov/opinions/documents/E069339.PDF