Ninth Circuit finds that CA Meth is, in fact, Meth

Quirky titles aside, anyone practicing in the Ninth Circuit has been following the saga of Lorenzo v. Barr and its progeny and trying to determine if California’s definition of methamphetamine is broader than the federal definition. The Ninth Circuit seems to have finally laid the issue to rest, concluding that geometric isomers of methamphetamine do not exist as a matter of chemistry, and as such, there is no realistic probability that California prosecutes crimes involving a broader chemical definition of methamphetamine. RIP, Lorenzo - I’ll miss being able to quip that “meth isn’t really meth.”

The full text of United States v. Rodriguez-Gamboa can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/27/19-50014.pdf

Eighth Circuit Finds that Iowa Conviction for Going Armed with Intent is not a Violent Felony

The Eighth Circuit has determined that an Iowa conviction going armed with intent is not a violent felony under the Armed Career Criminal Act (ACCA). The court noted that under the statute, “the movement and the intent are discrete elements, with no requirement that the movement be in furtherance of, or even in the direction of, commission of the crime.” Given the similarity between the definition of a violent felony under the ACCA and the definition of a crime of violence in immigration proceedings, this case is persuasive authority for immigration purposes.

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

https://ecf.ca8.uscourts.gov/opndir/20/08/193130P.pdf

Eighth Circuit Finds that Federal Convictions for Kidnapping Resulting in Death and Carjacking Resulting in Death are Crimes of Violence

The Eighth Circuit finds that federal convictions for kidnapping resulting in death and carjacking resulting in death are crimes of violence under the federal sentencing guidelines.

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

https://ecf.ca8.uscourts.gov/opndir/20/08/182800P.pdf

Seventh Circuit Sustains Appeal of Untimely, Number-Barred Sua Sponte Motion to Reopen

The Seventh Circuit has sustained the appeal of the denial of an untimely, number-barred sua sponte motion to reopen. In so doing, the court noted that the Board of Immigration Appeals misinterpreted the petitioner’s motion to reopen to be solely for the purpose of adjustment of status, when in fact, he had also challenged whether he was removable as charged.

The full text of Salazar-Marroquin v. Barr can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D08-13/C:19-1669:J:Hamilton:aut:T:fnOp:N:2563438:S:0

Fifth Circuit finds that TX Conviction for Sexual Assault of a Child is a Crime of Child Abuse

The Fifth Circuit has determined that a Texas conviction for sexual assault of a child is a crime of child abuse. In so doing, the court deferred to the Board of Immigrations’ (Board) interpretation of this ground of deportability, articulated in its decisions in Matter of Velazquez-Herrera and Matter of Soram. The court noted that the statute at issue requires intentionally or knowingly engaging in acts involving direct sexual contact with a child, which falls squarely within the Board’s definition.

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

http://www.ca5.uscourts.gov/opinions/pub/19/19-60097-CV0.pdf

Fifth Circuit Defines Persecution as Requiring Sustained and Repeated Harm

The Fifth Circuit has determined that persecution requires sustained, repeated harm. As such, it deferred to the agency’s determination that a petitioner who was threatened on three occasions, and physically harmed on one occasion, did not suffer harm rising to the level of persecution.

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

http://www.ca5.uscourts.gov/opinions/pub/18/18-60827-CV0.pdf

Fourth Circuit Applies Barton Decision on Stop-Time Rule

The Fourth Circuit has applied the Supreme Court’s decision in Barton v. Barr on the stop-time rule, and found that a lawful permanent resident who committed an offense that rendered him inadmissible within seven years of his admission was ineligible for cancellation of removal.

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

https://www.ca4.uscourts.gov/opinions/182514.P.pdf

Third Circuit Sustains Appeal of Discretionary Denial of Asylum

The Third Circuit has sustained an appeal of a discretionary denial of asylum where the IJ granted withholding of removal. The court noted that 8 C.F.R. § 1208.16(e) provides that a denial of asylum shall be reconsidered when an applicant is denied asylum solely in the exercise of discretion and is subsequently granted withholding, and requires that the IJ take into account the reasons for the denial and reasonable alternatives available to the applicant such as reunification with the spouse or minor children in a third country. The IJ in the instant matter refused to consider the issue of family reunification or the significance of the petitioner having established a well-founded fear of persecution.

The court went on to adopt a non-exhaustive list of factors for a court to consider when evaluating whether asylum should be granted in the exercise of discretion.

Positive factors include:1) Family, business, community, and employment ties to the United States, and length of residence and property ownership in this country; 2) Evidence of hardship to the alien and his family if deported to any country, or if denied asylum such that the alien cannot be reunited with family members (as derivative asylees) in this country; 3) Evidence of good character, value, or service to the community, including proof of genuine rehabilitation if a criminal record is present; 4) General humanitarian reasons, such as age or health; [and] 5) Evidence of severe past persecution and/or well-founded fear of future persecution, including consideration of other relief granted or denied the applicant (e.g., withholding of removal or CAT protection).

Negative factors include: 1) Nature and underlying circumstances of the exclusion ground; 2) Presence of significant violations of immigration laws; 3) Presence of a criminal record and the nature, recency, and seriousness of that record, including evidence of recidivism; 4) Lack of candor with immigration officials, including an actual adverse credibility finding by the IJ; [and] 5) Other evidence that indicates bad character or undesirability for permanent residence in the United States.

Based largely on the IJ’s refusal to consider family reunification, the court remanded the case to the agency.

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

https://www2.ca3.uscourts.gov/opinarch/182925p.pdf

Third Circuit Prohibits Retroactive Application of Matter of Diaz Lizarraga

The Third Circuit has determined that the new definition of a theft-related crime involving moral turpitude articulated in Matter of Diaz Lizarraga cannot be applied retroactively.

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

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

Third Circuit Finds that PA Conviction for Involuntary Deviate Sexual Intercourse with a Minor is not Aggravated Felony

The Third Circuit has determined that Pennsylvania conviction for involuntary deviate sexual intercourse with a minor is not a sexual abuse of a minor-related aggravated felony. The court noted that the Supreme Court’s decision in Esquivel-Quintana did not purport to give a full definition of sexual abuse of a minor, ruling only on the narrow issue of how the age of victim and the age difference between the victim and perpetrator in a statutory rape offense could inform the analysis of whether conduct qualified as sexual abuse.

The court went on to conclude that given the severe consequences of an aggravated felony finding, a mens rea of recklessness could not suffice to qualify a conviction as an aggravated felony, but rather, a mens rea of knowingly is required with respect to the sex act in question.

Turning to the Pennsylvania statute at issue, the court noted that because the statute itself lacked a mens rea, the Pennsylvania gap-filling measure dictated that the minimum mens rea is recklessness. As such, the conviction is not a categorical match to the generic definition of a sexual abuse of a minor aggravated felony.

The full text of Cabeda v. AG can be found here:

https://www2.ca3.uscourts.gov/opinarch/191835p.pdf

Third Circuit Finds No Jurisdiction to Review BIA's Refusal to Certify Late-Filed Appeal

The Third Circuit has determined that it has no jurisdiction to review the Board of Immigration Appeals’ decision not to certify a late-filed appeal to itself because such a determination (absent certain exceptions not applicable in this case) is a purely discretion decision lacking sufficient benchmarks for review.

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

https://www2.ca3.uscourts.gov/opinarch/191167p.pdf

Third Circuit Applies Substantial Evidence Review to Reasonable Fear Determination

The Third Circuit has applied substantial evidence review to a negative reasonable fear determination. The court rejected the government’s assertion that review of a reasonable fear determination should be subject to the highly deferential “facially legitimate and bona fide” standard. The court also approvingly cited to the Attorney General’s decision in Matter of L-E-A- for the proposition that nuclear families are generally not cognizable as particular social groups.

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

https://www2.ca3.uscourts.gov/opinarch/193550p.pdf

Second Circuit Finds that CT Conviction for Possession of Controlled Substance with Intent to Sell is CIMT

The Second Circuit has determined that a Connecticut conviction for possession of a controlled substance with intent to sell is a crime involving moral turpitude. The court reached this conclusion while recognizing that the Connecticut statute criminalized the giving away of a small of a substance.

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

https://www.ca2.uscourts.gov/decisions/isysquery/439ddf3d-3b3c-4999-bfcc-e7cacdc4ec27/13/doc/19-1385_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/439ddf3d-3b3c-4999-bfcc-e7cacdc4ec27/13/hilite/

Second Circuit Vacates Fraud Aggravated Felony Finding Predicated on Restitution Order

The Second Circuit has vacated a fraud-related aggravated felony finding based on a restitution order. The petitioner was convicted of one count of insurance fraud and one count of grand larceny, and the restitution order did not establish if it was calculated based on losses due to the fraud, the theft, or both. Thus, the government had not proven the $77,000 restitution order was tied to the fraud count.

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

https://www.ca2.uscourts.gov/decisions/isysquery/439ddf3d-3b3c-4999-bfcc-e7cacdc4ec27/7/doc/19-825_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/439ddf3d-3b3c-4999-bfcc-e7cacdc4ec27/7/hilite/

First Circuit Finds that MA Drug Possession with Intent to Distribute Conviction is Aggravated Felony

The First Circuit has rejected a claim that a Massachusetts conviction fo possession with intent to distribute is not an aggravated felony because the mens rea for accomplice liability differs under state law from federal law. The court found no realistic probability that a defendant could satisfy the state mens rea standard but not the federal mens rea standard.

The full text of Soto-Vittini v. Barr can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/19-1372P-01A.pdf

First Circuit Finds Departure under Subsequently-Reopened Removal Order Breaks Physical Presence for TPS

The First Circuit has determined that an individual who departed the United States for 98 days under an in absentia removal order broke his continuous physical presence for the purpose of Temporary Protected Status. Although an Immigration Judge rescinded the removal order, the Board of Immigration Appeals later determined that the rescission was inappropriate. The First Circuit left open the possibility that a properly reopened removal order might negate the interruption to physical presence.

The full text of Machado Siagaran v. Barr:

http://media.ca1.uscourts.gov/pdf.opinions/19-1282P-01A.pdf

DACA Developments

On July 17, 2020, a federal district court ordered the Trump Administration to begin accepting DACA applications from individuals who have never before had DACA and to begin accepting Advance Parole applications from current DACA recipients.

The full text of the order in Casa de Maryland v. DHS can be found here

https://www.courtlistener.com/recap/gov.uscourts.mdd.403497/gov.uscourts.mdd.403497.97.0.pdf

Unfortunately, today the Administration issued a new DACA memo, stating that it will reject any DACA applications from individuals who have never had DACA, and that it will only grant Advance Parole in “exceptional circumstances,” a much higher standard than was applied to Advance Parole applications filed prior to the 2017 DACA Rescission memo. In addition, DACA renewals will be limited to one year timeframes going forward.

The full text of the memo can be found here:

https://www.dhs.gov/sites/default/files/publications/20_0728_s1_daca-reconsideration-memo.pdf

SCOTUS Scales Back Habeas

The Supreme Court has reversed Ninth Circuit precedent allowing the recipient of a negative credible fear determination to challenge that decision through a habeas petition in District Court. The Court noted that the relief sought was not release from unlawful restraint, which is the traditional relief granted by a habeas petition.

“This principle dooms respondent’s Suspension Clause argument, because neither respondent nor his amici have shown that the writ of habeas corpus was understood at the time of the adoption of the Constitution to permit a petitioner to claim the right to enter or remain in a country or to obtain administrative review potentially leading to that result. The writ simply provided a means of contesting the lawfulness of restraint and securing release.”

Perhaps even more alarming is the Court’s analysis of the petitioner’s due process rights. The petitioner physically entered the United States, and was apprehended about 25 yards from the border. Despite his entry, the Court determined that he no constitutional right to due process.

The full text of DHS v. Thuraissigiam can be found here:

https://www.supremecourt.gov/opinions/19pdf/19-161_g314.pdf

BIA Finds that EWI Entrant can be Placed in MPP

The Board of Immigration Appeals has determined that a person who entered without inspection can be subject to the Migrant Protection Protocols.

The full text of Matter of M-D-C-V- can be found here:

https://www.justice.gov/eoir/page/file/1293971/download

AG Backtracks on "Rogue Official" Exception to CAT

The Attorney General has backtracked on the Board of Immigration Appeals’ attempt to carve out a “rogue official” exception to protection under the Convention Against Torture (CAT). “To the extent the Board used ‘rogue official’ as shorthand for someone not acting in an official capacity, it accurately stated the law. By definition, the actions of such officials would not form the basis for a cognizable claim under the CAT. But continued use of the ‘rogue official’ language by the immigration courts going forward risks confusion, not only because it suggests a different standard from the ‘under color of law’ standard, but also because ‘rogue official’ has been interpreted to have multiple meanings.”

“This standard does not categorically exclude corrupt, low-level officials from the CAT’s scope. Rather, regardless of rank, a public official acts under color of law when he ‘exercise[s] power possessed by virtue of law and made possible only because he is clothed with the authority of law.’ Whether any particular official’s actions ultimately satisfy this standard is a fact-intensive inquiry that depends on whether the official’s conduct is ‘fairly attributable to the State.’” The Attorney General further noted that there should be no distinction between acts of torture by high ranking or low level officials.

The Attorney General vacated the Board of Immigration Appeals’ prior published decision on the case.

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

https://www.justice.gov/eoir/page/file/1294101/download