Seventh Circuit Rejects Equal Protection Claim to Citizenship Statute

The petitioner was born abroad to a U.S. citizen mother and a foreign national father. He challenged the constitutionality of the citizenship statute that required his mother to have resided in the United States for ten years prior to his birth in order to transmit citizenship to him. The petitioner “maintains that there is no rational basis on which to distinguish between him—a minor child, born abroad to a United States citizen, who lawfully entered the Country and lived in the custody of that United States citizen parent in the United States—and a lawful permanent resident minor child living in the custody of a lawful permanent resident parent when that parent naturalizes.” The Seventh Circuit disagreed, finding that the statute “bears a rational relation to the Government’s legitimate interest in ensuring that children born abroad who become citizens have ties to the United States.”

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D11-07/C:19-1728:J:Ripple:aut:T:fnOp:N:2426953:S:0

Fifth Circuit Dismisses Appeal of Motion to Reopen Visa Waiver Overstay Removal Order

The petitioner lasted entered the United States using the Visa Waiver Program (VWP). Use of the VWP requires a traveler to waive any right to contest a removal order except through a claim for asylum. The petitioner remained in the United States beyond the 90 day authorized period, and ICE issued a removal order against him. He later filed a motion to reopen that order, which ICE denied. He then filed a Petition for Review of the denial.

The Fifth Circuit dismissed, find that the petition was premised on the denial of a motion that the petitioner was not entitled to file in the first instance.

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

http://www.ca5.uscourts.gov/opinions/pub/18/18-60244-CV0.pdf

Fourth Circuit Finds No Jurisdiction for PFR

The Fourth Circuit has determined there is no jurisdiction for federal review when the Board of Immigration Appeals (Board) remands a case for background checks pursuant to a grant of withholding of removal. The petitioner’s asylum application was denied on firm resettlement grounds, but he was granted withholding of removal. He appealed to the Board, which affirmed the denial of asylum, and remanded for background checks. The petitioner appealed to the Fourth Circuit. Subsequently, the Immigration Judge again entered a removal order and granted withholding of removal, and the petitioner again appealed to the Board. That appeal remains pending.

The Fourth Circuit determined there was no final removal order at the time the petition for review was filed because the question of whether the petitioner was eligible for withholding of removal had yet to be answered and remained entirely contingent on the results of his background checks, dnd because the IJ retained authority on remand to reconsider any other issues presented by the case and grant appropriate relief.

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

http://www.ca4.uscourts.gov/opinions/181904.P.pdf

Second Circuit finds that CT First-Degree Robbery Conviction is Crime of Violence

The Second Circuit has determined that a Connecticut first-degree robbery conviction qualifies as a crime of violence. It requires the threatened use of physical force because even the mere display of a firearm during a larceny or immediately thereafter necessarily implies a threat to commit violence.

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

http://www.ca2.uscourts.gov/decisions/isysquery/791e9ac0-59fe-4e6d-bb0e-99c1d4aafca5/22/doc/17-514_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/791e9ac0-59fe-4e6d-bb0e-99c1d4aafca5/22/hilite/

Second Circuit Finds Egregious Fourth Amendment Violations by ICE

The petitioner was arrested during an ICE raid that was perceived to be conducted as retaliation for the city of New Haven, CT issuing IDs to undocumented immigrants. The Immigration Judge relied on the following three conclusions to find that there was no egregious Fourth Amendment violation during the arrest: 1) he arrived at the site of an ongoing law enforcement operation driving a vehicle owned by another individual, (2) he did not have identification on him, and (3) he was unable to speak English. The Second Circuit disagreed, noting that “Rodriguez arrived at 546 Woodward Avenue to provide documentation from the vehicle so that his boss could respond to law enforcement inquiries. He also gave a reasonable explanation as to his lack of identification: He had rushed out of bed and into the car in order to help his boss as quickly as possible. Lastly, while Rodriguez is not proficient in English, this ‘same characteristic applies to a sizable portion of individuals lawfully present in this country.’”

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

http://www.ca2.uscourts.gov/decisions/isysquery/791e9ac0-59fe-4e6d-bb0e-99c1d4aafca5/5/doc/15-3728_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/791e9ac0-59fe-4e6d-bb0e-99c1d4aafca5/5/hilite/

First Circuit Remands Family-Based PSG Asylum Claim

The First Circuit has remanded an asylum claim in which the petitioner alleged that his paternal grandparents persecuted him because of their hatred for his mother.

The full text of Enamorado-Rodriguez v. Barr can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/19-1084P-01A.pdf

BIA Finds that OR Menacing Conviction is a CIMT

The Board of Immigration Appeals (Board) has determined that an Oregon conviction for menacing is a crime involving moral turpitude. In so doing, the Board has stated that the element of actual inflicted fear is not necessary to determine that a crime categorically involves moral turpitude where the statute requires evil or malicious intent, and the level of threatened harm, or magnitude of menace implicit in the threat, is serious and immediate.

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

https://www.justice.gov/eoir/file/1208861/download

BIA Finds that CA Witness Tampering Conviction is an Aggravated Felony

The Board of Immigration Appeals (Board) has determined that a California conviction for witness tampering categorically matches the definition of an obstruction of justice aggravated felony because it requires interference with an ongoing or reasonably foreseeable future investigation. The Board also determined that it could permissibly apply its definition of an obstruction of justice offense from Matter of Valenzuela Gallardo II retroactively because the definition of an obstruction of justice offense has remained uncertain throughout the years of litigation between the Board and the Ninth Circuit, and as such, do not represent an abrupt departure from well-settled policy.

The full text of Matter of Cordero-Garcia can be found here:

https://www.justice.gov/eoir/page/file/1210991/download

AG Creates Presumption of a Lack Good Moral Character for 2 DUIs

The Attorney General has determined that a person with two DUI convictions during the good moral character period presumptively lacks good moral character and is ineligible for cancellation of removal for non-lawful permanent residents.

“There could be an unusual case in which an alien can establish that the multiple convictions were an aberration and can show good moral character. To do so, the respondent must overcome the strong evidence attributable to those multiple convictions by establishing good moral character. See 8 C.F.R. § 1240.8(d). But a respondent may not make this showing merely by demonstrating that he reformed himself after those convictions by, for instance, addressing a problem with substance abuse. The statute requires that good moral character be shown over the continuous period of not less than 10 years immediately preceding’ the application. INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1). The alien thus must show that he had good moral character even during the period within which he committed the DUI offenses. An alien’s efforts to reform or rehabilitate himself after multiple DUI convictions are commendable, but they do not themselves demonstrate good moral character during the period that includes the convictions. Absent substantial relevant and credible contrary evidence, multiple DUI convictions require that the immigration judge deny cancellation of removal.”

The full text of Matter of Castillo-Perez can be found here:

https://www.justice.gov/eoir/page/file/1213196/download

AG Reverses Agency Precedent on Sentencing Modifications

The Attorney General has reversed 18 years of agency precedent and determined that sentencing modifications will no longer be effective for immigration purposes unless they are premised on legal error in the underlying criminal proceedings. The Attorney General also overruled two cases that held that the Full Faith and Credit Clause applies to agencies, such as the Immigration Courts and the Board of Immigration Appeals. Notably, the Attorney General left in place current federal case law dictating which party bears the burden of proof of establishing the reason for a sentence modification.

The full text of Matter of Thompson and Matter of Thomas can be found here:

https://www.justice.gov/eoir/page/file/1213201/download

USCIS Adopts 3 AAO Decision on SIJS Eligibility

U.S. Citizenship and Immigration Services (USCIS) has adopted three Administrative Appeals Office decisions governing eligibility for Special Immigration Juvenile Status (SIJS). The decision make clear that USCIS will expect SIJS orders to cite specific state law provisions governing abuse, neglect, and abandonment, and will undertake an inquiry into whether state court proceedings were brought to address abuse, neglect, or abandonment or solely for the purpose of obtaining immigration status. USCIS has clarified that it will no longer require that the juvenile court have jurisdiction to place the juvenile in the custody of the unfit parent(s) in order to make a qualifying determination regarding the viability of parental reunification.

The text of Matter of D-Y-S-C- can be found here:

https://www.uscis.gov/sites/default/files/USCIS/files/Matter_of_D-Y-S-C-_Adopted_Decision_2019-02_AAO_Oct._11_2019.pdf

The text of Matter of A-O-C- can be found here:

https://www.uscis.gov/sites/default/files/USCIS/files/Matter_of_A-O-C-_Adopted_Decision_2019-03_AAO_Oct._11_2019.pdf

The text of Matter of E-A-L-O- can be found here:

https://www.uscis.gov/sites/default/files/USCIS/files/Matter_of_E-A-L-O-_Adopted_Decision_2019-04_AAO_Oct._11_2019.pdf

Fourth Circuit Finds that Individuals in Withholding Only Proceedings are Entitled to a Bond Hearing

The Fourth Circuit has determined that individuals who are subject to a reinstated removal order, and who are pursuing withholding of removal, are eligible for bond hearings because the removal order is pending until the withholding only proceedings are complete.

The full text of Guzman Chavez, et. al v. Hott can be found here:

http://www.ca4.uscourts.gov/Opinions/186086.P.pdf

Second Circuit finds that NY Conviction for Second‐Degree Assault with a Deadly Weapon or Dangerous Instrument is Crime of Violence

The Second Circuit has determined that a New York conviction for second-degree assault with a deadly weapon or dangerous instrument is a crime of violence aggravated felony because “he deadly weapon or dangerous instrument element makes obvious that the statute requires the use of violent force.”

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

https://cases.justia.com/federal/appellate-courts/ca2/14-1018/14-1018-2019-09-24.pdf?ts=1569335405

Eleventh Circuit Finds that WA Conviction for Delivery of Cocaine is Aggravated Felony

The Eleventh Circuit has determined that a Washington conviction for delivery of cocaine is an aggravated felony. The petitioner offered two arguments as to why the statute of conviction is broader than the definition of a drug trafficking aggravated felony. First, he argues that accomplice liability under the Washington statute is broader than accomplice liability under the federal Act. Second, he argues that the Washington statute proscribes “administering” a controlled substance and the federal Act does not.

The court disagreed, finding that the petitioner could not establish a realistic probability that accomplice liability under the Washington statute extends significantly beyond liability under the federal Act. The court recognized that its decision was at odds with the caselaw with four other circuits. With respect to the issue of administering a controlled substance, the court determined that the federal Act prohibits dispensing a controlled substance, which includes administering a controlled substance.

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

http://media.ca11.uscourts.gov/opinions/pub/files/201812137.pdf

Ninth Circuit finds that Immigration Judges do not Have Authority to Grant U Visa Waivers

The Ninth Circuit has deferred to the Board of Immigration Appeals’ decision in Matter of Khan, finding that Immigration Judges do not have the authority to grant waivers of inadmissibility in connection with U visas. The court determined that the statute at issue is ambiguous. “Congress has not explained how to reconcile its grant of a specific inadmissibility waiver and sole grant of U visa adjudicatory power to the Secretary of Homeland Security, 8 U.S.C. § 1182(d)(14), with the pre-existing inadmissibility waiver power vested in the Attorney General for aliens who are seeking admission, 8 U.S.C. § 1182(d)(3)(A)(ii).” The court then deferred to Khan as a reasonable interpretation of the ambiguous statute.

This decision accords with Third Circuit precedent, but contradicts Seventh and Eleventh Circuit precedent.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/10/24/13-70840.pdf

Sixth Circuit Approves of Two-Step Notice to Trigger Stop Time Rule

The Sixth Circuit has determined that the Immigration Court may “complete” a Notice to Appear by issuing a notice of hearing specifying the time and place of the first removal hearing. Issuance of the notice of hearing is sufficient to trigger the stop time rule for cancellation of removal purposes. The court determined that the statute was unambiguous, making it unnecessary to defer to the Board of Immigration Appeals’ decision in Matter of Mendoza-Hernandez, which reached the same outcome. The court also noted that its decision was at odds with the Ninth Circuit’s decision in Lopez v. Barr.

The full text of Garcia -Romo v. Barr can be found here:

http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0255p-06.pdf

Fifth Circuit Remands for Further Consideration of new Decision in L-E-A-

The Fifth Circuit has remanded an asylum case for further consideration in light of the Attorney General’s recent decision in Matter of L-E-A-. The court acknowledged that the AG’s decision is conflict with case law in the First, Fourth, Sixth, Seventh, Eighth, and Ninth Circuits, but not with any Fifth Circuit precedent.

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

http://www.ca5.uscourts.gov/opinions/pub/17/17-60339-CV0.pdf

BIA Clarifies Standard for Marriage Fraud

The Board of Immigration Appeals has issued a new decision clarifying the standard for denying an I-130 petition based on marriage fraud. The standard of proof necessary to bar the approval of a visa petition based on marriage fraud is substantial and probative evidence. This standard is more than a preponderance of evidence, and closer to (but less than) clear and convincing evidence. Both direct and circumstantial evidence may be considered in determining whether there is substantial and probative evidence of marriage fraud, and circumstantial evidence alone may be sufficient to constitute substantial and probative evidence.

The central question in determining whether a sham marriage exists is whether the parties intended to establish a life together at the time they were married. Such a determination requires an examination of the conduct of the parties before and after the marriage to ascertain their intent, but only to the extent that it bears upon their subjective state of mind at the time they were married.

A sworn statement by the parties admitting that the marriage is fraudulent, that money changed hands, and that the couple did not intend to live together or consummate the marriage is direct evidence of fraud that is substantial and probative. However, an admission or other such direct evidence is not necessary to establish marriage fraud.

Where there are some minor inconsistencies and the documentary evidence is limited, they should be considered in assessing whether there is fraud, but these factors, without more, would not likely be sufficient to satisfy the substantial and probative evidence standard for marriage fraud. Evidence that the parties knowingly and deliberately attempted to mislead or deceive immigration officials regarding their cohabitation, joint finances, or other aspects of the marriage strongly indicate fraud. Detailed reports from on-site visits and field investigations are especially important pieces of evidence that may reveal the presence of fraud. Evidence that the parties have other romantic partners, with whom they may have children, is also a significant consideration, especially when these facts are either not disclosed or are deliberately concealed. Statements from family members, employers, or acquaintances indicating they do not know about the marriage or that the parties told them the marriage is a sham are additional indicia of fraud. Other circumstantial evidence that may support a finding of marriage fraud includes evidence that one or both parties have been filing taxes as single persons during the marriage or otherwise holding themselves out to be single while representing to immigration officials that they are still married. Official Government documents indicating fraud carry more evidentiary weight than informal evidence of a bona fide marriage, such as insurance policies or bank account statements.

Where there is evidence that the petitioner has been married to several beneficiaries, especially if a connection between the petitioner and a former spouse has continued through joint property ownership, finances, or benefits, the likelihood of the beneficiary’s involvement in a fraudulent scheme should be considered. Affidavits alone will generally not be sufficient to overcome evidence of marriage fraud in the record without objective documentary evidence to corroborate the assertions made by the affiants.

The full text of Matter of P. Singh can be found here:

https://www.justice.gov/eoir/page/file/1197521/download

Eleventh Circuit Addresses Jurisdictional Challenge to NTA Missing Time and Date of Hearing

The Eleventh Circuit has determined that a challenge to a Notice to Appear missing the time and date of the first removal hearing is a claim-processing challenge, not a jurisdictional challenge. As such, the claim needed to be raised before the agency.

The court rejected the agency’s asylum analysis. The Immigration Judge had determined that one central reason for the Gulf Cartel’s persecution of the petitioner was to collect on a debt owed by his father-in-law, but then stated that the family relationship was merely “incidental” to the persecution. The court disagreed, stating that “it is impossible to disentangle his relationship to his father-in-law from the Gulf Cartel’s pecuniary motives: they are two sides of the same coin. The record is replete with evidence that the Gulf Cartel sought out and continuously extorted Mr. Perez-Sanchez because of his father-in-law’s past history with the cartel.” “Absent the familial relationship between Mr. Perez-Sanchez and Mr. Martinez-Carasco, the cartel would never have hunted him and his partner down to begin with or continued persecuting them for months.”

The full text of Perez-Sanchez v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201812578.pdf

Ninth Circuit Determines that Federal Courts Lack Jurisdiction to Review Denial of National Interest Waivers

The Ninth Circuit has determined that the federal district courts lack jurisdiction to review U.S. Citizenship and Immigration Services’ denial of a national interest waiver because such decisions are within the discretion of the Secretary of Homeland Security. Applicants can still raise constitutional claims.

The full text of Poursina v. USCIS can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/28/17-16579.pdf