Ninth Circuit Finds that Removal of Petitioner did not Withdraw his Appeal

The Ninth Circuit has determined that when the Department of Homeland Security removes an appellant while his appeal of a denied motion to reconsider is pending before the Board of Immigration Appeals, his appeal is not considered withdrawn under the regulatory departure bar. “We therefore hold that an alien does not withdraw his appeal of a final removal order, including the appeal of the denial of a motion to reopen or reconsider, simply because he was involuntarily removed before the appeal was decided. Rather, we hold that § 1003.4 provides for withdrawal only when the petitioner engaged in conduct that establishes a waiver of the right to appeal.”

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/12/27/16-72246.pdf

Eighth Circuit Rejects Challenge to Underlying Removal Order in Reinstatement Appeal

The Eighth Circuit has rejected the petitioner’s argument that he suffered a gross miscarriage of justice in his underlying administrative removal order, finding that he cannot challenge the validity of the underlying removal order through an appeal of the reinstatement of that order.

The full text of Lara Nieto v. Wolf can be found here:

https://ecf.ca8.uscourts.gov/opndir/19/12/182232P.pdf

Third Circuit Transfers Citizenship Claim to District Court to Evaluate Claim of De Facto Marriage in Peru

The Third Circuit has transferred a case to District Court to resolve a dispute about whether the petitioner’s parents were married (and subsequently legally separated) under Peruvian law, which recognizes de facto marriages.

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

https://www2.ca3.uscourts.gov/opinarch/191049p.pdf

Third Circuit Finds that Federal Conviction for Conspiracy to Commit Assault with a Dangerous Weapon is not Aggravated Felony; Remands CAT Claim for Former Gang Member

The Third Circuit has determined a conviction under 18 U.S.C. § 1959(a)(6) (conspiracy to commit assault with a dangerous weapon) is not a crime of violence aggravated felony, not a conspiracy-related aggravated felony (which requires an overt act, an element not required by the federal conspiracy statute), and not a racketeering offense. The court also remanded the petitioner’s claim for protection under the Convention Against Torture, which was premised on the harm he would suffer as a former gang member if he were to be deported to El Salvador. The court emphasized that the Salvadoran government may acquiesce to torture by gang members, even if it is actively opposing gang members, if it is unable to prevent the harm.

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

https://www2.ca3.uscourts.gov/opinarch/183750p.pdf

Second Circuit Finds that BIA Appeal Deadline is Subject to Equitable Tolling

The Second Circuit has determined that the 30-day appeal deadline for filing a Notice of Appeal with the Board of Immigration Appeals (BIA) is a claim processing rule, not a jurisdictional bar, and as such, it is subject to equitable tolling. The court emphasized that equitable tolling is available, even without the BIA exercising its discretionary certification authority.

“ The BIA is free to develop the factors it will apply in considering equitable tolling, although we note that it need not start from scratch. In Holland, the Supreme Court set out standards for courts to apply in determining whether equitable tolling is appropriate: (1) a showing that a petitioner “has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.”  560 7 U.S. at 649 (internal quotation marks omitted). And in the context of a late motion to reopen, we have held that petitioners seeking equitable tolling must demonstrate (1) that their constitutional rights to due process were violated by the conduct of counsel; and (2) that they exercised due diligence during the putative tolling period.”

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

http://www.ca2.uscourts.gov/decisions/isysquery/07812bd0-88af-49f5-9682-1c2732ecc8c3/7/doc/18-204_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/07812bd0-88af-49f5-9682-1c2732ecc8c3/7/hilite/

Second Circuit Addresses Definition of Sexual Abuse of a Minor

The Second Circuit has addressed the definition of a sexual abuse of a minor aggravated felony, taking into account recent Supreme Court precedent on the topic. The court determined that a conviction must require knowing or purposeful conduct to qualify as a sexual abuse of a minor aggravated felony. Turning to the conviction at issue (New York’s criminal sexual act in the second degree, which criminalizes oral or anal sexual conduct with a victim under fifteen years old), the court noted that the statute did not have an explicit mens rea requirement. However, the court concluded that such conduct cannot occur without the perpetrator’s knowledge or intent to commit the criminalized sexual conduct. The court also rejected the petitioner’s argument that New York’s lack of a mistake of age defense transforms the statute into a strict liability offense, outside the scope of the definition of a sexual abuse of a minor aggravated felony. In so doing, the court noted that at the time Congress added the sexual abuse of a minor aggravated felony ground, most jurisdictions did not have a mistake of age defense to similar offenses. Thus, the court concluded that a New York conviction for criminal sexual act in the second degree is a categorial match to the definition of a sexual abuse of a minor aggravated felony.

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

http://www.ca2.uscourts.gov/decisions/isysquery/07812bd0-88af-49f5-9682-1c2732ecc8c3/28/doc/17-3519_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/07812bd0-88af-49f5-9682-1c2732ecc8c3/28/hilite/

USCIS Announces Extension of TPS for El Salvador, Nicaragua, Haiti, Honduras, Nepal, and Sudan

USCIS announces the extension of Temporary Protected Status for El Salvador, Nicaragua, Haiti, Honduras, Nepal, and Sudan until January 4, 2021.

The USCIS announcement can be found here:

https://www.uscis.gov/news/alerts/dhs-extends-tps-documentation-six-countries

BIA Defines Standards for Reopening and Termination of Asylum Based on Fraud

The Board of Immigration Appeals (Board) has determined that “reopening of proceedings to terminate a grant of asylum is warranted if the Department of Homeland Security [DHS] has demonstrated that evidence of fraud in the original proceeding was not previously available and is material because, if known, it would likely have opened up lines of inquiry that could call the alien’s eligibility for asylum into doubt.” In the instant case, the DHS moved to reopen to introduce evidence that the asylee’s attorney had been convicted of conspiracy to commit immigration fraud. The Board considered this sufficient to warrant reopening, but noted that “[i]n reopened proceedings, the DHS carries the burden of proof to establish by a preponderance of the evidence that the respondent’s asylum application was fraudulent, that she was not eligible for asylum when it was granted, and that she would not have been eligible on the true facts.”

The full text of Matter of X-Q-L- can be found here:

https://www.justice.gov/eoir/page/file/1216091/download

BIA Issues Decision on Heightened Standard 209(c) Waiver

The Board of Immigration Appeals has determined that hardship to the applicant is counted in the “exceptional and extremely unusual hardship” standard for a heightened standard 209(c) waiver. However, even if an applicant establishes the exceptional and extremely unusual hardship required to demonstrate extraordinary circumstances, a section 209(c) waiver and adjustment of status may still be denied in the exercise of discretion if the adverse factors, particularly those involving the alien’s criminal conduct, outweigh the favorable ones. . If the applicant has demonstrated exceptional and extremely unusual hardship, that finding would be a significant favorable factor in a discretionary analysis.

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

https://www.justice.gov/eoir/page/file/1214306/download

Tenth Circuit Finds that NTA Lacking Date and Time of First Hearing does not Deprive IJ of Jurisdiction

The Tenth Circuit has determined that a Notice to Appear that fails to specify the time and date of the first removal hearing does not deprive an Immigration Judge of jurisdiction over the removal proceedings.

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

https://www.ca10.uscourts.gov/opinions/19/19-9510.pdf

Ninth Circuit Finds that Denial of U Visa is Challengeable in Federal Court

The Ninth Circuit has determined that the denial of a U visa is challengeable in federal district court under the Administrative Procedures Act. With respect to the petitioner’s claim that USCIS failed to consider all credible evidence, the Ninth Circuit held the appropriate standard of review on remand to the District Court would be whether USCIS acted in a manner that was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. With respect to his claim that Washington’s felony harassment crime is a qualifying crime for U visa purposes, the Court left it to the District Court in the first instance to determine the appropriate standard of review. The petitioner’s challenge to USCIS’s factual finding that felony harassment was not detected by law enforcement would also be reviewed for an abuse of discretion or substantial evidence.

The full text of Perez Perez v. Wolf can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/22/18-35123.pdf

Ninth Circuit Finds that Federal Conviction for Assault Resulting in Serious Bodily Injury is Crime of Violence

The Ninth Circuit has determined that federal convictions for assault resulting in serious bodily injury qualify as crimes of violence for federal sentencing purposes. “The least violent form of each offense is the threat to use violent physical force through the use of a dangerous weapon that reasonably caused a victim to fear immediate bodily injury, which u necessarily entails at least the ‘threatened use of violent physical force’ to qualify the offenses as crimes of violence.” Given the similar definition of a crime of violence for federal sentencing purposes and immigration purposes, this case could have persuasive impact in the immigration context.

The full text of U.S. v. Gobert can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/26/17-35970.pdf

Ninth Circuit Finds Petitioner Eligible for 237(a)(1)(H) Waiver Even Though He Failed to Complete Two-Year Home Residency Requirement

The Ninth Circuit has determined that a lawful permanent resident who failed to complete the two-year home residency requirement as a J visa holder prior to obtaining his residency remains eligible for a 237(a)(1)(H) waiver. “Section 212(e) does not state that noncitizens subject to its residency requirement are not “admissible” to the United States. Rather, it provides that they are not “eligible” for particular forms of admission. Other forms of admission, not specifically barred by the statute, remain available. For example, § 212(e) does not prohibit admission as a tourist or business visitor under 8 U.S.C. § 1101(a)(15)(B).” “Notwithstanding his failure to satisfy or receive a waiver of the two-year residency requirement, Petitioner was admissible under several provisions of 8 U.S.C. § 1101(a)(15).”

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/25/13-71916.pdf

Ninth Circuit Finds that Frivolous Asylum Application Bars 237(a)(1)(H) Waiver

The Ninth Circuit finds that the filing of a frivolous asylum application prohibits an applicant from later seeking a waiver of inadmissibility under section 237(a)(1)(H) of the INA. The petitioner filed a frivolous asylum application in 1999 under a false name, and was subsequently granted asylum and permanent residency under his real name. He was later placed in removal proceedings, and sought a waiver under section 237(a)(1)(H), but the agency determined that the filing of a frivolous asylum application in 1999 barred from seeking the waiver. The Ninth Circuit agreed.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/25/17-72231.pdf

Ninth Circuit Prohibits Reinstatement of Order that Was Unlawful at Time of Execution

The Ninth Circuit has prohibited the reinstatement of a removal order that was no longer lawful at the time of its execution. In the instant case, the petitioner was convicted in 1991 of possession of a controlled substance. He was ordered removed in 1998, but he received an expungement in 1999, which eliminated the conviction under the Federal First Offenders Act. He was physically deported in 2008. He returned, and ICE sought to reinstate the 1998 order. The Ninth Circuit found that because the removal order was no longer lawful in 2008 when it was executed, the petitioner suffered a gross miscarriage of justice, prohibiting the reinstatement of the order.

“Collateral attack is largely reserved for cases in which the removal order could not have withstood judicial scrutiny under the law in effect at the time of either its issuance or its execution.” “Vega-Anguiano [] had his conviction expunged prior to—indeed, many years prior to—the execution of his removal order in 2008. As we noted above, and as the government has conceded, the expungement eliminated the legal basis for his removal order because Vega-Anguiano met the requirements of the Federal First Offender Act. Thus, by the time of Vega-Anguiano’s removal in 2008, his removal order lacked a valid legal basis.” In addition, the Court determined that “there is no diligence requirement that limits the time during which a collateral attack on that deportation or removal order may be made based on a showing of gross miscarriage of justice.”

The full text of Vega-Anguiano v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/19/15-72999.pdf

Ninth Circuit Finds that Hawaii First-Degree Unlawful Imprisonment Conviction is CIMT

The Ninth Circuit has determined that a Hawaii conviction for first-degree unlawful imprisonment is a crime involving moral turpitude. The statute requires, at a minimum, that the defendant knowingly restrain another person under circumstances that the defendant knows will expose the person to a risk of serious bodily injury. The court concluded that the combination of the harm and state of mind required by the Hawaii statute results in conduct that is morally turpitudinous. “Even though the offense required a state of mind of only recklessness, we found that the creation of a substantial, actual risk of imminent death is sufficiently reprehensible” to establish a CIMT.’” The court also noted that both the Board of Immigration Appeals and the iInth Circuit “have been unable to establish any coherent criteria for determining which crimes fall within that classification and which crimes do not.”

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/18/16-70918.pdf

Ninth Circuit Finds that Reinstated Order Cannot be Reopened

The Ninth Circuit has determined that the reinstatement of a removal order acts as a permanent bar to reopening that order. The court, however, recognized that the reinstatement bar does not affect a petitioner’s ability to rescind an in absentia order based on lack of notice. “Forfeiture of the right to reopen under § 1229a(c)(7) is part of the less favorable legal regime to which Padilla is now subject by unlawfully reentering and remaining in the United States despite his prior removal order.”

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/13/16-72378.pdf

Ninth Circuit Finds Jurisdiction over Prematurely-Filed PFR; Addresses Proper Notice of Amended NTA

The Ninth Circuit has determined that absent any prejudice to the Government, a premature petition for review of an immigration order may ripen upon final disposition of the case by the Board of Immigration Appeals (Board). In the instant case, the petitioner filed a motion to reopen with the Immigration Judge (IJ), which the IJ denied, and the petitioner appealed to the Board. Before the Board issued its decision, the petitioner filed a petition for review with the Ninth Circuit. The Board issued a decision dismissing the appeal before it approximately two months later. The court concluded that “the jurisdictional defect in filing the petition was cured by a final judgment from the [Board] before this court had considered any aspect of the petition, and the Government has shown no prejudice resulting from the premature filing.”

In addition, the court determined that the Board abused its discretion in denying an appeal of an IJ denial of a motion to reopen, where the IJ in the underlying removal proceeding ordered the petitioner removed in absentia on the basis of an amended notice to appear of which she did not receive proper notice. “The written notice requirement of an in absentia removal order applies both to the charges and conduct alleged and the date and time of the removal hearing.” “Because the record provides no evidence of proper service of the amended NTA, as required by due process, and the IJ ordered Diaz Martinez removed based on admissions to the charges for which she did not receive notice, the in absentia removal order was not supported by substantial evidence.” “The amended NTA, however, replaced the underlying factual allegations that the Government lodged against her.”

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/10/30/17-72186.pdf

Eighth Circuit finds that Iowa Conviction for Willful Injury Causing Bodily Harm is Crime of Violence

The Eighth Circuit has determined that an Iowa conviction for willful injury causing bodily harm is a crime of violence because “[o]ne cannot cause bodily injury to another without using the force capable of producing that injury.”

The full text of Jima v. Barr can be found here:
https://ecf.ca8.uscourts.gov/opndir/19/11/191104P.pdf

Eighth Circuit finds that Iowa Conviction for Assault with Intent to Inflict Serious Injury is Crime of Violence

The Eighth Circuit has determined that an Iowa conviction for assault with intent to inflict serious injury is a crime of violence under the sentencing guidelines because it necessarily involved the use, attempted use, or threatened use of physical force. Given the similarity between the definition of a crime of violence in the federal sentencing law and the immigration law, this case could have persuasive impact in the immigration context.

The full text of U.S. v. Quigley can be found here:

https://ecf.ca8.uscourts.gov/opndir/19/11/183317P.pdf