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Second Circuit Finds that Changed Circumstances Arising After Filing of I-589 can Toll One Year Filing Deadline

The Second Circuit has determined that changed circumstances arising after the filing of a Form I-589 can still be used to invoke an exception to the one-year filing deadline for asylum. “Our reading of § 1158(a)(2)(D) and these other provisions of the INA persuades us that Congress did not intend to bar the agency from considering 7 the asylum application of an applicant who shows changed circumstances that 8 first arise after the application is filed, and did not require that the changed 9 circumstances even relate to the delay in filing. To the contrary, Congress clearly 10 contemplated that the agency could consider a change in circumstances such as 11 the one alleged here at several stages in an applicant’s proceedings—even when 12 the change bears no relation to the reason for the delay, and even as late as a 13 motion to reopen a final order of removal.”

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

https://www.ca2.uscourts.gov/decisions/isysquery/5255578c-4d1d-4db5-ac16-bbbd78d43c08/22/doc/17-982_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/5255578c-4d1d-4db5-ac16-bbbd78d43c08/22/hilite/8/22/hilite/

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Second Circuit Finds that NY Firearms Convictions are not Firearms Offenses

The Second Circuit has determined that New York firearms statutes are not a categorical match to the federal definition of a firearms offense because they do not contain an antique firearms exception. The court reinforced that the realistic probability test has no role to play in the interpretation of a statute where its overbreadth is obvious on the face of the statute.

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

https://www.ca2.uscourts.gov/decisions/isysquery/5255578c-4d1d-4db5-ac16-bbbd78d43c08/16/doc/18-842_opn%2018-1479_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/5255578c-4d1d-4db5-ac16-bbbd78d43c08/16/hilite/

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Second Circuit Applies Equitable Estoppel Doctrine in CSPA Case

The Second Circuit has applied the equitable estoppel doctrine to a case involving the Child Status Protection Act (CSPA). The petitioner had filed and adjustment of status application when she was 17 years old, as a derivative of her mother’s adjustment. The application arrived at USCIS a few days before the new visa bulletin went into effect, and thus, was premature. Instead of following agency policy, which was to reject such a filing, USCIS did not issue a rejection or a receipt notice, and failed to respond to service requests for three years. By the time the petitioner became aware that USCIS had no record of her adjustment application, she had aged out of her derivative status.

“USCIS's silence and inaction for the three years following the submission of Schwebel's 2007 application would reasonably suggest that the application was indeed being processed. For these reasons, we conclude that Schwebel reasonably relied on USCIS's inaction in believing that her 2007 application was being processed. In light of the ‘extraordinary circumstances’ here, where Schwebel's application was received by the agency just four days too early, and a visa remained available for another month and a half, the agency should have provided -- and indeed was required by its own procedures to provide -- reasonably prompt notice of the purported defect. If it had done so, Schwebel would likely have been able to resubmit her application within the application period. Because of USCIS's failure to provide reasonably prompt notice, Schwebel suffered great prejudice as she ‘aged out’ of the CSPA by the time another visa period opened. Her parents are now lawful permanent residents, and if the government's failures here are not rectified, there is a possibility that Schwebel will be separated from her family and removed from the country in which she has lived since she was eight years old.”

The full text of Schwebel v. Crandall can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/5255578c-4d1d-4db5-ac16-bbbd78d43c08/6/doc/18-3391_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/5255578c-4d1d-4db5-ac16-bbbd78d43c08/6/hilite/

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CA Appellate Court Finds 1016.5 Advisements not Substitute for Attorney Advice

The California Court of Appeal, Second Appellate Division, has held that a trial court’s advisement of possible immigration consequences under Penal Code 1016.5 does not substitute for an attorney’s specific advisement of whether those consequences will, in fact, attach to their client’s plea. In this case, the defendant challenged a 1991 conviction for possession for sale of cocaine base, asserting that her defense counsel did not tell her that she would be permanently ineligible for permanent residency if she accepted the plea. The appellate court reversed the denial of her motion to vacate under Penal Code 1473.7.

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

http://sos.metnews.com/sos.cgi?0620//B296742

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BIA Expands Definition of Marriage Fraud

The Board of Immigration Appeals has determined that an individual who sought a K-1 fiancee visa based on a sham engagement has conspired to enter into a marriage for the purpose of evading the immigration laws, and as such, is subject to the future consequences of a section 204(c) finding. “For purposes of section 204(c)(2) of the Act, a conspiracy requires an agreement to enter into a marriage for the purpose of evading the immigration laws and an overt act in furtherance of that agreement.“ “For the Attorney General to make such a ‘determination,’ there must be an overt act. The filing of a visa petition is an overt act in furtherance of the conspiracy. It is not enough, however, if two parties merely ‘agree’ to enter into a marriage for the purpose of evading the immigration laws but never engage in any other action or conduct that furthers that agreement.”

The full text of Matter of R.I. Ortega can be found here:

https://www.justice.gov/eoir/page/file/1287341/download

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BIA Clarifies Standards for Changed Country Conditions MTR

The Board of Immigration Appeals has held that a respondent who was previously denied asylum on credibility grounds, and who seeks to reopen proceedings due to changed country conditions related to the same claim of persecution, must also present evidence to overcome the adverse credibility determination. “However, if newly submitted evidence is based on information independent of the prior adverse credibility finding, it must be addressed.”

The full text of Matter of F-S-N- can be found here:

https://www.justice.gov/eoir/page/file/1284876/download

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Eleventh Circuit Denies IAC Claim

The Eleventh Circuit has held that the filing of a bar complaint is not sufficient to demonstrate that prior counsel was notified of the allegations against him and given an opportunity to respond because not all bar complaints lead to a notice being sent to the attorney. In addition, the filing of a bar complaint is a separate requirement under Matter of Lozada from notice to the attorney, and permitting the bar complaint to serve as notice would eviscerate the separate requirement of a bar complaint.

The full text of Point Du Jour v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201815235.pdf

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SCOTUS Finds Jurisdiction to Review Factual Findings in CAT Cases

The Supreme Court has determined that federal appellate courts have jurisdiction to review the agency’s factual findings related to a claims protection under the Convention Against Torture (CAT) even if the person has been found removable for a conviction that would normally strip the court’s jurisdiction to review factual findings.

“A CAT order is not itself a final order of removal because it is not an order ‘concluding that the alien is deportable or ordering deportation.’ As the Government acknowledges, a CAT order does not disturb the final order of removal. An order granting CAT relief means only that, notwithstanding the order of removal, the noncitizen may not be removed to the designated country of removal, at least until conditions change in that country. But the noncitizen still ‘may be removed at any time to another country where he or she is not likely to be tortured.’” The factual findings would be reviewed under the deferential substantial evidence standard.

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

https://www.supremecourt.gov/opinions/19pdf/18-1432_e2pg.pdf

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Ninth Circuit Revisits Land Ownership-Based Particular Social Groups

Seven years after holding that “wealthy landowners” may be a particular social group, the Ninth Circuit has now rejected an asylum claim by the same petitioner. Noting that intervening case law required an asylum applicant to demonstrate that the society in question perceived the proposed group as a group, the court held that the record did not establish that Colombian society perceives wealth landowners as a group. This case is a good reminder of the importance of building a record of societal perception into the record.

The full text of Cordoba v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/16/17-71655.pdf

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Ninth Circuit Rejects Equal Protection Challenge to Derivative Citizenship Statute

The Ninth Circuit has rejected an equal protection challenge to derivative citizenship statute found at 8 USC 1432(a)(3).

“Section 1432(a)(3)’s second clause discriminates on the basis of gender. It grants citizenship upon ‘the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation,’ but it does not grant citizenship in the converse scenario: upon the naturalization of the father if the child was born out of wedlock and the child’s maternity has not been established by legitimation.” “Petitioner, however, does not challenge the clearly disparate treatment identified above. Nor could she, because both her paternity and her maternity were established during her youth. Instead, she argues that the statute unconstitutionally discriminates ‘because it does not contain any equivalent provision stating that a child automatically becomes a citizen upon the naturalization of the father if the child was born out of wedlock and the mother has relinquished parental rights’ or has abandoned the child.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/04/15-72942.pdf

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Ninth Circuit Finds Violation of Asylees' Due Process Rights

The Ninth Circuit has found that the admission of a Report on Investigation violated the petitioner’s due process rights. The Immigration Judge (IJ) acknowledged the report lacked detail. The IJ also acknowledged that the report concluded that four documents presented by the petitioner were likely fraudulent, based on exemplars that Petitioner had no access to. The IJ noted that the petitioner was able to prove that at least two of those documents were not, in fact, fraudulent. The petitioner had no ability to cross-examine the investigators or the drafter of the report. Nonetheless, the IJ relied on the report to find that the petitioner had committed fraud to obtain his asylum status, to terminate that status, and to deny petitioner’s renewed application for asylum on credibility grounds.

“The single-page ROI refers to unnamed investigators and ‘exemplars’ of documents that purportedly confirm that some of Petitioner’s asylum application materials are fraudulent. However, DHS did not identify any of the named individuals, present supporting evidence to explain the nature of the investigation, produce the referenced exemplars, or proffer any government witnesses about the alleged fraud. Thus, the Grigoryans were not allowed a meaningful opportunity to rebut the government’s fraud allegations.” “The ROI’s indicia of reliability are further undermined because, despite their limited ability to rebut the ROI’s findings, the Grigoryans were nonetheless able to show that half of the identified documents were not fraudulent. In addition, the mere fact that the ROI is a DHS document does not absolve the government from affording the Grigoryans a fair opportunity to rebut its assertions.”

“DHS must not only show that certain documents submitted with Petitioner’s original application for asylum were fraudulent. The government’s burden here is much higher: It must show that Petitioner would not have been granted asylum in 2001 but for the fraudulent documents. If, and only if, the government meets this heavy burden, does the burden shift to the Grigoryans to prove they are entitled to relief from deportation.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/02/16-73652.pdf

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Ninth Circuit finds that CA Conviction for Vehicular Flight from Police Against Traffic is Categorically a CIMT

The Ninth Circuit has determined that a California conviction for vehicular flight from the police while driving against traffic is categorically a crime involving moral turpitude. While the court acknowledged that the statute does not require an intent to injure anyone or actual injury to any victims, it determined that non-fraudulent crimes that seriously endanger others can also fall within the ambit of a crime involving moral turpitude. The court noted that the statute requires willfulness—an elevated mens rea—with respect to both fleeing a pursuing peace officer and driving in the wrong direction during flight.

The full text of Lepe Moran v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/02/18-73167.pdf

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Seventh Circuit Declines to Address Challenge to Two-Step Stop Time Rule

The Seventh Circuit has declined to address a challenge to the two-step stop time rule put forth by the Board of Immigration Appeals (Board) in Matter of Mendoza-Hernandez. Instead, the court simply held that the petitioner waited too long to bring the challenge, as she had not even applied for cancellation of removal when she was in proceedings. This decision is oddly reasoned in my view, as the Board did not deny the motion to reopen on timeliness grounds, but instead, assumed the petitioner was entitled to equitable tolling.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D05-29/C:19-2375:J:Easterbrook:aut:T:fnOp:N:2523785:S:0

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Seventh Circuit Upholds Waiver of Rights by Minor who Entered on Visa Waiver

The Seventh Circuit has upheld the validity of a waiver to challenge a removal order for a petitioner who entered the United States as a minor on the visa waiver program, and whose parent signed the waiver on his behalf.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D06-16/C:19-2055:J:Ripple:aut:T:fnOp:N:2531868:S:0

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Sixth Circuit Defers to BIA on Jurisdiction over UAC Asylum

The Sixth Circuit has deferred to the Board of Immigration Appeals’ decision in Matter of M-A-C-O- and determined that an Immigration Judge properly assumed jurisdiction over the asylum application of an unaccompanied minor who did not file his asylum application until after his 18th birthday.

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

https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0178p-06.pdf

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Fifth Circuit Construes TX Drug Conviction

The Fifth Circuit has acknowledged that a Texas cocaine statute, on its face, is broader than federal drug statutes, because it also criminalizes offenses involving the position isomers of cocaine. However, the court found that the petitioner did not prove a realistic probability that Texas courts prosecute offenses involving position isomers of cocaine.

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

http://www.ca5.uscourts.gov/opinions/pub/18/18-60748-CV0.pdf

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Second Circuit Finds that CT Conviction for Unpermitted Carrying of a Pistol or Revolver is not Firearms Offense

The Second Circuit has determined that a Connecticut conviction for the unpermitted carrying of a pistol or revolver is not a firearms offense because the state statute criminalizes conduct involving certain antique firearms that is not covered by the federal definition of a firearms offense. “Connecticut criminalizes unlicensed carrying and transportation of loaded antique firearms; the federal definition excludes such conduct.” In addition, “the text of the Connecticut statute excludes only the ‘transporting’ of ‘unloaded’ antique pistols or revolvers from its general prohibition on ‘carrying’ unpermitted pistols and revolvers ‘upon [one’s] person.’ The INA definition of ‘firearm offense,’ in contrast, expressly excludes all conduct involving antique firearms.” The court also rejected the application of the realistic probability test, finding that the plain language of the statute demonstrated its overbreadth.

The full text of Williams v. Barr can be found here:
https://www.ca2.uscourts.gov/decisions/isysquery/0c7b55a5-be7b-43f5-ac93-5989936afec3/28/doc/18-2535_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/0c7b55a5-be7b-43f5-ac93-5989936afec3/28/hilite/

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