Second Circuit Finds that Misprision of a Felony is not CIMT

The Second Circuit has determined that a federal conviction for misprision of a felony is not a crime involving moral turpitude because it has no evil intent requirement. “The BIA’s decision that misprision categorically constitutes a CIMT is also unmoored from its own precedent. The BIA and courts have consistently 12 declared offenses that involve appreciably higher levels of moral culpability to be 13 insufficiently grave to qualify as CIMTs.” The Second Circuit decision aligns it with similar case law in the Ninth Circuit.

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

https://www.ca2.uscourts.gov/decisions/isysquery/0c7b55a5-be7b-43f5-ac93-5989936afec3/27/doc/18-801_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/0c7b55a5-be7b-43f5-ac93-5989936afec3/27/hilite/

Second Circuit Finds that CT Third Degree Sexual Assault Conviction is Crime of Violence

The Second Circuit has determined that a Connecticut conviction for sexual assault in the third degree is a crime of violence because it requires use of a dangerous instrument, actual physical force or violence, or superior physical strength, and thus, necessarily includes the use or threatened use of violent force as an element.

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

https://www.ca2.uscourts.gov/decisions/isysquery/0c7b55a5-be7b-43f5-ac93-5989936afec3/24/doc/16-296_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/0c7b55a5-be7b-43f5-ac93-5989936afec3/24/hilite/

Second Circuit Remands CAT Claim

The Second Circuit has determined that “[t]o hold categorically that an applicant for CAT relief must be threatened more than once and that such a person must suffer physical harm before fleeing is an error of law.” “Martinez’s testimony, which the IJ credited, established that she and her children were facing a sustained 17 campaign of violent confrontations. These included when gang 18 members flashed a knife at Martinez and when they attempted to force Martinez’s pregnant daughter into a secluded area and threatened to cut her child out of her body.”

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

ca2.uscourts.gov/decisions/isysquery/0c7b55a5-be7b-43f5-ac93-5989936afec3/7/doc/17-2898_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/0c7b55a5-be7b-43f5-ac93-5989936afec3/7/hilite/

First Circuit Finds IJ Violated Asylum Seeker's Right to Counsel

The First Circuit has determined that an Immigration Judge violated an asylum seeker’s right to counsel by only giving her 14 business days to secure counsel after she learned that her bond attorney could not continue representation. In addition, the court noted the many arguments made by counsel in the BIA appeal, which demonstrate that the presence of counsel at the IJ level likely would’ve had a material outcome on the proceedings.

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

http://media.ca1.uscourts.gov/pdf.opinions/19-1524P-01A.pdf

SCOTUS Overturns DACA Rescission

The Supreme Court has determined that the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program was arbitrary and capricious. In so doing, the Court relied only on the reasons given by Acting Secretary of Homeland Security (DHS) Elaine Duke in her original rescission memo, and not on the subsequent post hoc justifications presented by Secretary Kirstjen Nielsen. The Court further rejected Duke’s reliance on the Fifth Circuit’s decision finding that expanded DACA and Deferred Action for Parents of Americans (DAPA) were unlawful, insomuch as the Fifth Circuit had relied on the eligibility for benefits accorded to those who would qualify for expanded DACA and DAPA, and not on the forbearance of removal that would be accorded to these individuals. Thus, the Court concluded, Secretary Duke, if she was truly motivated by concerns that DACA was illegal given the Fifth Circuit’s decision, could have left the removal forbearance piece of DACA in place, while only removing the eligibility for certain benefits, such as work authorization, Social Security benefits, and Medicare. The Court also faulted Duke for not considering what reliance DACA recipients and their families, employers, and schools may have had on the original memo creating the DACA program. “Acting Secretary Duke should have considered those matters but did not. That failure was arbitrary and capricious in violation of the APA.”

The Court remanded the case to allow the agency to consider the issue anew. As such, the DHS could again try to rescind DACA using a more thoughtful and comprehensive decision-making process.

The full text of DHS v. Regents of University of CA can be found here:

https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf

BIA Finds that Failure to Check Classification Box does not Render NTA Defective

The Board of Immigration Appeals has determined that the failure to check one of three classification boxes (arriving alien, alien present with admission or parole, or admitted alien) on a Notice to Appear does not deprive of an Immigration Judge of jurisdiction over a removal proceeding and does not warrant termination of the removal proceedings of an individual returned to Mexico under the Migrant Protection Protocols.

The full text of Matter of Herrera-Vasquez can be found here:

https://www.justice.gov/eoir/page/file/1274901/download

Tenth Circuit Rules that Departure Bar Regulation does not Prevent Agency from Exercising Sua Sponte Authority to Reopen

The Tenth Circuit has ruled that the regulatory departure bar does not prevent the Immigration Judge from exercising his sua sponte authority to reopen proceedings. The departure bar applies only to a motion to reopen filed by one of the parties, which differs from an Immigration Judge’s authority to sua sponte reopen proceedings. ‘Thus, the IJ may move sua sponte to reopen removal proceedings even when either or both the ninety-day time bar or the post-departure bar would defeat an alien’s ‘motion to reopen’.”

The full text of Reyes-Vargas v. Barr can be found here:

https://www.ca10.uscourts.gov/opinions/17/17-9549.pdf

Ninth Circuit Finds NV Conviction for Possession of Visual Presentation Depicting Sexual Conduct of Person under 16 Years of Age is not Sexual Abuse of a Minor Aggravated Felony

The Ninth Circuit has determined that a Nevada conviction for possession of visual presentation depicting sexual conduct of a person under 16 years of age is not a sexual abuse of a minor aggravated felony. The court noted that “the Nevada statute does not require proof that the offender participated in sexual conduct with a minor, as required under the first two elements of the federal generic definition. That requirement is grounded in the ordinary meaning of ‘sexual abuse.’” “The Nevada statute punishes possession of a visual depiction of a minor engaged in sexual conduct, but knowing and willful possession of the image alone renders an offender guilty. The offender himself need not have participated in any form of sexual conduct with the minor who is depicted in the image.” “With a possession-only offense such as N.R.S. § 200.730, the minor depicted in the image is not the direct object of the offender’s conduct, which is a necessary predicate for the offense to qualify as ‘sexual abuse of a minor.’”

The court remanded for the agency to address in the first instance if the conviction qualified as an aggravated felony related to child pornography, but the government admitted that statute is likely overbroad compared to the generic definition of that aggravated felony.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/01/17-70929.pdf

Ninth Circuit Certifies Question of Divisibility of AZ Drug Statutes to AZ Supreme Court

The Ninth Circuit has certified the question of whether Arizona’s drug statutes are divisible with respect to the identity of the substances regulated.

The order in Romero=Millan v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/04/16-73915.pdf

Ninth Circuit Finds that Failure to Comply with Regulation does not Deprive Immigration Court of Jurisdiction

The Ninth Circuit has determined that the failure to include the address of the Immigration Court where a Notice to Appear will be filed does not deprive the Immigration Court of jurisdiction over the removal proceedings. The regulatory violation is cured by the subsequent issuance of a notice of hearing with the location information. The court deferred to the Board of Immigration Appeals’ decision in Matter of Rosales Vargas.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/05/18-70855.pdf

Ninth Circuit Grants Rehearing En Banc Regarding Derivative U Visa Spouses

The Ninth Circuit has granted a petition for en banc rehearing of Tovar v. Zuchowski, a case construing the definition of a derivative spouses for U visa purposes.

The order granting the petition can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/07/18-35072_en%20banc_order.pdf

My blog post on the original 3-judge panel decision can be found here:

http://www.sabrinadamast.com/journal/2020/2/1/ninth-circuit-affirms-u-visa-regulations-governing-derivative-spouses

Ninth Circuit Rejects Settled Course of Adjudication Doctrine

The Ninth Circuit affirmed the Board of Immigration Appeals’ (BIA) refusal to exercise its sua sponte authority to reopen or reconsider the removal order of a deported lawful permanent resident after the Ninth Circuit determined that her conviction was not a deportable offense. The court declined to adopt the “settled course of adjudication” doctrine (which would have required the court to recognize the BIA has a settled policy of reopening cases under similar circumstances), finding that the doctrine is barred by the general rule that a federal court has no jurisdiction to review the BIA’s refusal to exercise its sua sponte authority. “Because the jurisdictional bar still applies, we have no authority to consider the consistency of the BIA’s decisions, or to even begin comparing the circumstances of the present case against the circumstances in past cases where sua sponte relief was granted.”

The court also found that the Board’s refusal to exercise equitable tolling was reasonable when the petitioner could have raised the same arguments on appeal that eventually were recognized by the Ninth Circuit in later case law. “We infer this to mean that, regardless of whether the change in law effected by Lopez-Valencia was ‘fundamental,’ Lona was not entitled to equitable tolling because (1) she failed to act with due diligence in discovering and raising the error asserted by Lopez-Valencia before the BIA and later, successfully, before us; and (2) she failed to do so despite the lack of impediments ‘to obtain[ing] vital information bearing on the existence of the claim.’ We agree.”

The full text of Lona v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/15/17-70329.pdf

Eighth Circuit Finds MN Sex Crimes to be CIMTs

The Eighth Circuit has determined that Minnesota convictions for Criminal Sexual Conduct in the Fifth Degree and Failure to Register as a Sex Offender are both crimes involving moral turpitude. In so doing, the court deferred to the Board of Immigration Appeals’ decision in Matter of Tobar-Lobo. “We see no bright line rule that excludes a regulatory offense from the scope of the statute when it involves reprehensible conduct and a culpable mental state.”

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

https://ecf.ca8.uscourts.gov/opndir/20/05/183011P.pdf

Eighth Circuit Finds VA Drug Statute Divisible

The Eighth Circuit has determined that a Virginia drug statute is divisible with respect to the substances regulated by the statute.

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

https://ecf.ca8.uscourts.gov/opndir/20/04/183165P.pdf

Fourth Circuit Finds VA Drug Statute Divisible

The Fourth Circuit has determined that a Virginia drug statute is divisible with respect to the identity of the controlled substance. As such, a conviction for distribution of cocaine as an accommodation is an aggravated felony and a controlled substance violation.

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

ca4.uscourts.gov/opinions/181292.P.pdf

Sixth Circuit Rejects Matter of A-B-

The Sixth Circuit has remanded a domestic violence based asylum claim, in which an IJ found that the applicant had suffered past persecution on account of a protected ground, but that the presumption of future harm had been rebutted because the applicant had been able to leave her abuser. The court noted that that “physical separation does not necessarily indicate that a relationship has ended—if it did, then any woman who escaped her persecutor and then filed an application for asylum on these grounds would be denied.” Moreover, during the year that she lived apart from her abuser, he continued to threaten her and their children with serious harm. While the applicant has since filed for divorce, her abuser refuses to consent to the divorce unless she relinquishes custody of their children to him.

In a footnote, the Sixth Circuit noted that it found the rationale of Grace v. Whitaker, which abrogated Matter of A-B-, to be persuasive, and as such, would likely find that the Matter of A-R-C-G- (which defined particular social groups as they relate to domestic violence) remains good law.

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

https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0156p-06.pdf

Sixth Circuit Addresses Corroborating Evidence and Nexus for Withholding of Removal

The Sixth Circuit has overturned a negative corroborating evidence determination in a withholding of removal case because the applicant was not given the opportunity to explain the absence of the corroborating evidence. The court further determined that an affidavit from the applicant’s sister was not reasonably available because she lived a 30-60 minute walk from a telephone that she had to pay to use, and the applicant accordingly only spoke with her about once per year. An affidavit was from the applicant’s mother was also unavailable because she still lived with the persecutor and because she could not write. Finally, the court determined that a withholding of removal applicant need only show that a protected ground is “a reason,” not “one central reason,” for the harm he suffered or fears suffering.

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

https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0155p-06.pdf

Third Circuit Confirms that Petitioner has Constitutional Right to Effective Counsel when Seeking Discretionary Relief

The Third Circuit has confirmed that a petitioner seeking cancellation of removal (a discretionary form of relief) still has a Fifth Amendment right to due process, including effective assistance of counsel. Thus, even an applicant for discretionary relief may assert an ineffective assistance of counsel claim, which is reviewable by the federal appellate court.

The full text of Calderon-Rojas v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/192332p.pdf

Third Circuit Prohibits Retroactive Application of Matter of Diaz-Lizarraga

The Third Circuit has determined that the Board of Immigration Appeals’ decision in Matter of Diaz-Lizarraga, which broadened the definition of a theft-related crime involving moral turpitude, cannot be applied retroactively to a conviction sustained before the decision in Diaz-Lizarraga.

The full text of Francisco-Lopez v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/192700p.pdf

Second Circuit Remands for Further Consideration of Police Ability to Protect

The Second Circuit has remanded the withholding of removal application of a former Jamaican police officer for further analysis of the Jamaican police force’s ability to protect him from harm. The court noted that while the police warned the petitioner that gang members were planning to kidnap his child, they did nothing to assist him in preventing the kidnapping, and in fact, told him he was “on his own.” The court, however, rejected the petitioner’s challenges to the new “unable to protect” standard articulated in Matter of A-B-, and remanded for the court to fully consider the evidence of the police force’s inability to protect using that new standard. The court also remanded for the agency to determine what significance a finding of government inability to protect would have for petitioner’s request for protection under the Convention Against Torture.

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

https://www.ca2.uscourts.gov/decisions/isysquery/ec637e79-751a-4c7c-be42-250e07dfdb75/22/doc/16-940_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/ec637e79-751a-4c7c-be42-250e07dfdb75/22/hilite/