First Circuit Finds Jurisdiction to Review Legal Errors in Denials of Sua Sponte Motions to Reopen

The First Circuit has determined that it has jurisdiction to review constitutional claims or errors of law that arise in the agency’s adjudication of sua sponte motions to reopen. The Court also found that the “BIA departed from its settled course of accepting full and unconditional pardons granted by a state's supreme pardoning authority when the pardon is executive, rather than legislative, in nature. The BIA's policy has been shaped by its prior decisions accepting pardons from authorities whose powers were conferred by statute and rejecting pardons that were not deliberative, even when constitutionally guaranteed. From these BIA decisions, it is evident that "executive in nature" does not require the power to pardon be presently inscribed in a state's constitution. As the BIA premised its denial of Thompson's motion to reopen on the insufficiency of a Connecticut pardon for purposes of the Pardon Waiver Clause, we remand to the BIA to determine whether to reopen Thompson's immigration proceedings sua sponte against the correct legal background.”

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

http://media.ca1.uscourts.gov/pdf.opinions/18-1823P-01A.pdf

First Circuit Permits Reliance on Gang Database

The First Circuit has found no due process violation in an Immigration Judge’s reliance on reports from the Boston Regional Intelligence Center’s gang databased in order to find an asylum applicant not credible and unworthy of an exercise of discretion.

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

http://media.ca1.uscourts.gov/pdf.opinions/19-1620P-01A.pdf

BIA Finds Haitian Asylum Applicant to have been Firmly Resettled in Brazil

The Board of Immigration Appeals (Board) determined that a Haitian asylum applicant had been firmly resettled in Brazil when he was offered permanent residence, even though he did not complete the ministerial steps required to claim that residence. “For purposes of determining whether an alien is subject to the firm resettlement bar to asylum, a viable and available offer to apply for permanent residence in a country of refuge is not negated by the alien’s unwillingness or reluctance to satisfy the terms for acceptance.” “An alien also cannot nullify an offer of firm resettlement by allowing his qualifications for permanent residence to lapse or by purposefully becoming ineligible.”

“[T]he evidence he presented of discrimination and criminal activity against Haitians in Brazil is limited in scope and does not establish that the Brazilian Government actively supports any mistreatment of Haitians that would constitute a conscious and substantial restriction of the respondent’s residence. Moreover, there is no evidence that the Brazilian Government restricted his right to travel or any other common, basic human right, with the exception of the right to vote, which is generally reserved to citizens.“

The full text of Matter of K-S-E- can be found here:
https://www.justice.gov/eoir/page/file/1267846/download

BIA Denies Cancellation Case on Hardship

The Board of Immigration Appeals (Board) has denied a cancellation of removal for non-lawful permanent residents case for an applicant who had six qualifying relatives (five U.S.-citizen children and one lawful permanent resident mother). The Board noted that three of the children and the mother had health issues. However, because the applicant and his partner gave conflicting testimony about where the children would live if he was deported, and his partner and mother gave conflicting testimony about the cost of his daughter’s medication in Guatemala, the Board agreed that he had not demonstrated the requisite hardship.

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

https://www.justice.gov/eoir/page/file/1264601/download

SCOTUS Addresses Stop Time Rule for LPR Cancellation

The Supreme Court has determined that a criminal offense can trigger the stop-time rule for cancellation of removal for lawful permanent residents even if the offense is not the basis for the charge of removability. Accordingly, a lawful permanent resident can trigger the stop-time rule with an offense that triggers inadmissibility, even if the lawful permanent resident is not seeking admission.

The full text of Barton v. Barr can be found here:
https://www.supremecourt.gov/opinions/19pdf/18-725_f2bh.pdf

Eleventh Circuit Finds that FL Aggravated Battery Conviction is Crime of Violence

The Eleventh Circuit has determined that a Florida conviction for aggravated battery is divisible, and the subsection criminalizing battery using a deadly weapon is a crime of violence.

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

http://media.ca11.uscourts.gov/opinions/pub/files/201913073.pdf

Ninth Circuit Construes "No Fault of their Own" Exception to Maintaining Lawful Status

The Ninth Circuit has determined that an adjustment applicant who relied on her attorney to file an extension of her H-1B status has fallen out of status through no fault of her own. “An applicant cannot be regarded as personally responsible for failing to maintain lawful status when that failure occurs due to a mistake on her lawyer’s part. An applicant who relies on the assistance of counsel to maintain lawful status will usually have no basis to question the soundness of the advice she receives from her lawyer. If the advice turns out to be erroneous and results in the applicant’s failure to maintain lawful status, no one using the term ‘fault’ in its ordinary sense would say that the applicant herself was to blame. If blame were assigned it would be placed on the attorney, whose job it is to know the intricacies of immigration law.“ The court also deemed 8 C.F.R. § 1245.1(d)(2) to be invalid to the extent that it does not recognize reasonable reliance on counsel’s advice as a failure to maintain status through no fault of the applicant.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/04/02/16-73509.pdf

Ninth Circuit Issues Two Decisions on Prolonged Detention Bond Hearings

The Ninth Circuit has determined that its prior decision in Diouf II survives the Supreme Court’s decision in Jennings v. Rodriguez. The class of petitioners at issue are individuals with reinstated removal orders. final orders of removal that have not been executed, and who have review of denied motions to reopen pending before the federal appellate court, and who have been detained for at least six months without a bond hearing. The court found that Government must provide class members with an individualized bond hearing after six months of detention when a class member’s release or removal is not imminent, and that the Department of Homeland Security must bear the burden of proving that continued detention is warranted by clear and convincing evidence. The court held that the class members are not entitled to subsequent custody reviews every six months thereafter.

The decision in Flores Tejada v. Godfrey can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/04/07/18-35460.pdf

The decision in Aleman Gonzalez v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/04/07/18-16465.pdf

Ninth Circuit Finds that USCIS Violated I-130 Petitioner's Due Process Rights

The Ninth Circuit has determined that USCIS violated an I-130 petitioner’s due process rights by relying on an undisclosed document to find that the I-130 beneficiary had previously been in a sham marriage. The petitioner only learned of the nature of the document (a rental application submitted by the I-130 beneficiary’s ex-spouse) when the Board of Immigration Appeals affirmed USCIS’ decision. They did not gain access to the document until even later. Since Meskel and Zerezghi did not have access to the rental application until after the administrative record had been filed in the district court, they ‘did not have a meaningful opportunity to rebut’ the BIA’s allegations, and thus the agency ‘did not afford [them] adequate procedural protections.’”

The court also found that the agency applied too low of a standard of proof as to whether Meskel’s prior marriage was a sham. The government argued that “substantial and probative evidence” was a highly deferential standard, permitting the agency to deny a petition as long as there was evidence of marriage fraud, even if it was more likely than not that the marriage was bona fide. The court disagreed. Instead, the court held that the substantial and probative evidence standard of proof is at least as high as a preponderance of the evidence.

The full text of Zerezghi v. USCIS can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/04/14/18-35344.pdf

Ninth Circuit Overrules Prior Precedent Regarding Carjacking

The Ninth Circuit has overruled its decision in Solorio-Ruiz v. Sessions, which held that a California conviction for carjacking is not a crime of violence, in light of the Supreme Court’s decision in Stokeling v. United States. The Supreme Court’s “clarification of ‘violent force’ (any force sufficient to overcome a victim’s physical resistance) is ‘clearly irreconcilable with our reasoning in Solorio-Ruiz. Our opinion rested on the analytical distinction between substantial and minimal force. This distinction no longer exists.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/04/21/18-10411.pdf

Fifth Circuit Reverses Denial of Motion to Reopen Based on Changed Country Conditions for Honduran Women

The Fifth Circuit has remanded a motion to reopen filed by a Honduran woman based on changed country conditions related to gender violence. The court noted that she had “introduced voluminous and uncontroverted evidence that the regime established after the 2009 coup made changes that substantially reduced legal protections for women and dramatically impaired institutions within the government and civil society that protect women from gender-based violence. And the coup was accompanied by the rate of homicides of women doubling within a single year, which can hardly be described as incremental.”

The full text of Inestroza-Antonelli v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/18/18-60236-CV0.pdf

Fourth Circuit Finds that Refusal to Engage in War Crimes can be Political Opinion

The Fourth Circuit has determined that a former Guatemalan military member who refused to kill a baby, and who was tortured by his fellow military members as a result, has demonstrated persecution on account of political opinion.

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

http://www.ca4.uscourts.gov/opinions/182469.P.pdf

First Circuit Rejects any Categorical Bar to Asylum for Domestic Violence Claims

The First Circuit has analyzed the seeming prohibition on domestic violence-based asylum claims outlined in Matter of A-B- and rejected any such categorical bar. A-B- “presumes that the inability to leave is always caused by the persecution from which the noncitizen seeks haven, and it presumes that no type of persecution can do double duty, both helping to define the particular social group and providing the harm blocking the pathway to that haven. These presumptions strike us as arbitrary on at least two grounds.”

“First, a woman's inability to leave a relationship may be the product of forces other than physical abuse,” such as cultural, societal, religious, economic, or other factors. “Second, threatened physical abuse that precludes departure from a domestic relationship may not always be the same in type or quality as the physical abuse visited upon a woman within the relationship. More importantly, we see no logic or reason behind the assertion that abuse cannot do double duty, both helping to define the group, and providing the basis for a finding of persecution.”

The court also left open the possibility that the petitioner, on remand, could claim to be a member of the social group comprised of “Dominican women.” “But grasping for the larger group hardly strikes us as a fool's errand. In 1985, the BIA recognized that a particular social group is indeed a group of ‘persons all of whom share a common, immutable characteristic,’ including ‘sex.’” “But it is not clear why a larger group defined as ‘women,’ or ‘women in country X’ -- without reference to additional limiting terms -- fails either the ‘particularity’ or ‘social distinction’ requirement. Certainly, it is difficult to think of a country in which women are not viewed as ‘distinct’ from other members of society. In some countries, gender serves as a principal, basic differentiation for assigning social and political status and rights, with women sometimes being compelled to attire and conduct themselves in a manner that signifies and highlights their membership in their group. It is equally difficult to think of a country in which women do not form a "particular" and ‘well-defined’ group of persons. While certain more narrowly-parsed groups might fail to exhibit societal salience, or internally coherent membership, the same does not follow for a group based on a gender.”

The full text of Miguelina de Pena-Panigua v. Barr can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/18-2100P-01A.pdf

Third Circuit Applies Futility Doctrine to Immigration Proceedings

The Third Circuit has applied the futility doctrine to immigration proceedings. The petitioner had filed a motion to reopen claiming to be a U.S. citizen, a claim that was subsequently litigated and rejected by the Eastern District of New York and the Second Circuit. Since the Board of Immigration Appeals would have no authority to make a contrary finding, remand of the motion to reopen would be futile.

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

https://www2.ca3.uscourts.gov/opinarch/101875p.pdf

Third Circuit Reverses Denial of Asylum to Ghanian LGBT Asylum Seeker

The Third Circuit has reversed the agency’s denial of asylum to a gay Ghanian man. The Third Circuit noted that the fact that the man was only attacked once and did not seek medical treatment was not dispositive. Moreover, the Court found no need for the petitioner to have sought police protection, given that Ghana criminalizes same-sex relations.

The full text of Doe v. Attorney General can be found here:
https://www2.ca3.uscourts.gov/opinarch/181342pa.pdf

Third Circuit Finds that "Persons Who Publicly Provide Assistance to Law Enforcement Against Major Salvadoran Gangs" are a Cognizable PSG

The Third Circuit has determined that individuals who publicly assist law enforcement against major Salvadoran gangs comprise a cognizable social group for the purpose of asylum and withholding of removal. The group is bound by an immutable characteristic because the members have the shared experience of assisting law enforcement, which is based on past conduct that cannot be undone. “In our analysis, it is indistinguishable whether someone testifies in court or publicly provides out of court assistance to law enforcement. In both circumstances, that person will have been visible to the public and is likely be targeted because of his cooperation.” “Like a group of witnesses who have testified in court against violent gangs, a group of witnesses who have publicly provided assistance to law enforcement against major Salvadoran gangs ‘has definable boundaries and is equipped with a benchmark for determining who falls within it’ sufficient to satisfy the particularity requirement.” “Providing assistance to law enforcement in public, like testifying in court, ‘lends itself to societal recognition,’ since ‘all are readily aware of the group and its members, not just those that are being provided information,” and thus, the group also has social distinction.

The court also noted that “asylum and withholding of removal under the INA may be granted on the basis of imputed, not just actual, membership in a particular social group.” In the instant case, the petitioner was seen talking to the police, and even though he did not actually provide information against gang members, the gang member assumed he had.

The court also found that the harm the petitioner suffered (which included threats made at gunpoint) constituted torture, and that the undisputed evidence showed that the gang members were still looking for the petitioner. Even though the Salvadoran government had enacted a witness protection program, it was limited to those who testified in court, and was underfunded and ineffective. “It is clear that this program is not sufficient to provide the protection to Guzman required to satisfy the CAT.”

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

https://www2.ca3.uscourts.gov/opinarch/191793p.pdf

Second Circuit Construes Jurisdictional Bar

The Second Circuit has determined that the criminal alien jurisdiction stripping provision only applies when the petitioner’s removal order is premised on the criminal offense. The court also remanded the petitioner’s CAT claim, finding that the agency improperly placed the burden on the petitioner to show that he could not safely internally relocate in Jamaica. “We have never before held that internal relocation is satisfied by assuming that a petitioner must essentially live incommunicado and isolated 5 from loved ones. And we decline to do so here.”

The full text of Manning v. Barr can be found here:
https://www.ca2.uscourts.gov/decisions/isysquery/20232925-1efe-476c-a08f-4d4efef6b2ae/27/doc/17-2182_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/20232925-1efe-476c-a08f-4d4efef6b2ae/27/hilite/

SCOTUS Construes Jurisdiction to Review Removal Orders

The Supreme Court has determined that questions of law include the application of a legal standard to undisputed or established facts. This arises in the context of the “criminal alien bar,” which limits jurisdiction of review in federal appellate courts to constitutional claims and questions of law when the petitioner has been convicted of certain removable criminal offenses. The Fifth Circuit had determined that whether a petitioner had acted with sufficient due diligent to warrant equitable tolling of the 90-day deadline for a motion to reopen was a question of fact that could not reviewed if the criminal alien bar had been triggered. Both requests for equitable tolling were premised on new Fifth Circuit case law, and there was no dispute as to how long after that case law came out the petitioners waited to file their motions to reopen.

The court remanded the cases for the Fifth Circuit to exercise jurisdiction over the appeals and determine if equitable tolling was appropriate.

The full text of Guerrero-Lasprilla v. Barr can be found here:

https://www.supremecourt.gov/opinions/19pdf/18-776_8759.pdf

BIA Permits Reliance on Interpol Red Notice

The BIA has indicated that an Interpol Red Notice is sufficient evidence to indicate that a respondent may have committed a serious nonpolitical crime. In the instant case, DHS submitted an Interpol Red Notice reflecting that a warrant had been issued by the Magistrates Court of San Salvador, for the respondent’s arrest regarding a violation of article 345 of the Salvadoran Penal Code, which proscribes participation in an “illicit organization.” The notice further alleged that the respondent was a hitman for a gang. The BIA concluded that the notice was sufficient to shift the burden to the respondent to prove by a preponderance of the evidence that the serious nonpolitical crime bar does not apply—in other words, to show that there are not serious reasons for believing that he committed a serious nonpolitical crime.

The full text of Matter of W-E-R-B- can be found here:

https://www.justice.gov/eoir/page/file/1256481/download

BIA Addresses Flight Risk for Asylum Seeker

In an appeal of a bond decision, the BIA has determined that an asylum seeker who has no family, employment, or community ties and no probable path to obtain lawful status is properly considered a flight risk.

The full text of Matter of R-A-V-P- can be found here:

https://www.justice.gov/eoir/page/file/1258971/download