Second Circuit Finds that NY 3d Degree Possession of Stolen Property is an Aggravated Felony

The Second Circuit has determined that a New York conviction for third-degree possession of stolen property is a receipt of stolen property aggravated felony even though the statute does not require the lack of consent of the owner to obtain the property, which brings it outside the generic definition of a theft offense. The court deferred to the Board of Immigration Appeals’ definition of a possession of stolen property aggravated felony in Matter of Alday Dominguez, which provided a separate definition for a receipt of stolen property aggravated felony than a theft aggravated felony.

The petitioner also argued that the statute does not require an intent to deprive the owner of the benefits of ownership. The court disagreed, finding that an intent to deprive the owner of property is inherent in the knowing possession of stolen property under New York law.

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

https://www.ca2.uscourts.gov/decisions/isysquery/e2e79608-b2b8-4507-8002-5c8bae39320c/13/doc/18-2755_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/e2e79608-b2b8-4507-8002-5c8bae39320c/13/hilite/

First Circuit Affirms Denial of Continuance

The First Circuit has determined that IJ properly denied a motion for a continuance for I-130 adjudication because the allegations in a police report related to pending assault charges were so egregious that the judge would deny the adjustment as a matter of discretion. The court further affirmed the Board of Immigration Appeals’ decision denying a motion to remand when the I-130 was approved and the criminal charges dismissed, relying on the reasonableness of the IJ’s discretionary determination.

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

http://media.ca1.uscourts.gov/pdf.opinions/19-1516P-01A.pdf

Ninth Circuit Finds that CA ADW Conviction is CIMT

The Ninth Circuit has determined that a conviction for assault with a deadly weapon or assault with force likely to produce great bodily injury is a crime involving moral turpitude. In so doing, the court has deferred to the Board of Immigration Appeals’ decision in Matter of Wu.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/09/17/16-74039.pdf

Attorney General Turns the Categorical Approach on its Head

The Attorney General - in a decision that I sincerely hope will not withstand the scrutiny of any federal judge reviewing it - has determined that a statute of conviction does not need to categorically match the definition of any single type of aggravated felony, so long as all of the conduct criminalized matches the generic definition of one of the subsets of aggravated felonies.

“Because New York law defines larceny to include both a taking of property without consent and one where consent was fraudulently obtained, the respondent argued that the statute of conviction is not a categorical match to either aggravated-felony theft or aggravated-felony fraud. Even if the New York offense must constitute either theft or fraud, she contended, the immigration judge could not determine using the categorical approach the one particular aggravated felony that she had committed. Therefore, she argued, her larceny conviction could not support her removal.”

The Attorney General disagreed. “None of the cases holds that a court is required to compare the alien’s underlying crime to one, and only one, generic offense at a time.”

Finally, the Attorney General found that he permissibly apply this new analysis retroactively,

The full text of Matter of Reyes can be found here:

https://www.justice.gov/eoir/page/file/1299811/download

BIA Finds that Lack of Diligence Undermines No-Notice Claim

The Board of Immigration Appeals has determined that rescission of an in absentia order is not warranted when a non-citizen was personally served with the Notice to Appear, failed to correct a typo in the address provided to the Immigration Court, and who waited 18 years to file his motion to reopen. “Even assuming that the respondent inadvertently provided the incorrect spelling of the city name, he was on notice that he had a duty to correct his address information and to properly notify the Immigration Court where he could receive notice. Inherent in the concept of notice is the implicit obligation that the intended recipient must provide the information necessary for the notice to be received.” “Since the respondent was clearly advised that he was required to provide a correct address to the Immigration Court and failed to do so, we conclude that he received constructive notice of his scheduled hearing, even if he did not receive actual notice of it.”

The full text of Matter of Nivelo Cardenas can be found here:

https://www.justice.gov/eoir/page/file/1301361/download

Eleventh Circuit Limits Jurisdiction to Review Denial of Adjustment Application

The Eleventh Circuit has determined that it lacks jurisdiction to review the denial of an adjustment of status application unless the appeal involves legal or constitutional questions. As such, the court determined it was precluded from reviewing the factual determination that the petitioner lacked the requisite subjective intent to make a false claim to U.S. citizenship.

The en banc decision in Patel v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201710636.enb.pdf

Tenth Circuit Rejects Challenge to Hardship Determination

The Tenth Circuit has rejected an attempt to establish jurisdiction over the denial of a cancellation of removal application based on insufficient hardship. The court acknowledged the Supreme Court’s recent decision in Guerrero-Lasprilla but found that it still did not permit the court to reweigh the hardship evidence.

The full text of Galeano-Romero v. Barr can be found here:

https://www.ca10.uscourts.gov/opinions/19/19-9585.pdf

Tenth Circuit finds that CO Drug Statute is Indivisible

The Tenth Circuit has determined that a Colorado statute criminalizing possession of a controlled substance is more overbroad and indivisible with respect to the identity of the controlled substance. Instead, the court found that the different schedules of drugs are elements, but the individual substances listed on any given schedule are merely alternative means.

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

https://www.ca10.uscourts.gov/opinions/19/19-9550.pdf

Ninth Circuit Construes Exception for Falling out of Status through no Fault of the Applicant

The Ninth Circuit has determined that an adjustment applicant who falls out of status prior to filing for adjustment of status, and whose timely filed application for extension of his nonimmigrant status is ultimately denied, has not fallen out of status due to “no fault of his own.” Rather, that exception can only be invoked if the timely-filed application for extension of status is ultimately granted.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/07/30/18-56629.pdf

Ninth Circuit Concludes that CA Stalking Conviction is a CIMT

The Ninth Circuit has concluded that a California conviction for stalking is categorically a crime involving moral turpitude. The court noted that the statute requires a willful course of conduct that puts a person in reasonable fear for their safety. It also requires the defendant to have made a credible threat of harm. The court also concluded that the petitioner’s two stalking convictions, which related to conduct on different dates, did not arise of a single criminal scheme.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/07/28/19-70164.pdf

Ninth Circuit Finds that CA Accessory after the Fact to a Felony is not Agg Fel

The Ninth Circuit has determined that a California conviction for accessory after the fact to a felony is not categorically an aggravated felony related to obstruction of justice because it encompasses conducted related to crimes which are not the subject of an ongoing investigation or proceeding.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/06/18-72593.pdf

Ninth Circuit Construes Matter of A-B-

The Ninth Circuit has determined that Matter of A-B-, which purported to exclude domestic violence and gang-based claims from asylum, did not actually create a categorical bar to such claims. Instead, these claims, like all asylum claims, but be evaluated on a case-by-case basis.

The court further observed that A-B- “merely reiterated the well-established principle that a particular social group must exist independently of the harm asserted, and that the BIA must consider whether a petitioner’s social group is cognizable if it is defined without reference to the fact of persecution.” “If a group is otherwise cognizable, Matter of A-B- does not demand that it be devoid of any reference to an applicant’s claimed persecution. To the contrary, Matter of A-B- reiterated the longstanding rule that persecution may be relevant to a group’s social distinction.” “The idea that the inclusion of persecution is a sort of poison pill that dooms any group does not withstand scrutiny. “ “BIA precedent confirms that a group that exists independent of persecution is simply a group that shares an immutable characteristic other than the persecution it suffers—i.e., a group that shares a ‘narrowing characteristic.’”

“The BIA ruled that Diaz-Reynoso’s proposed social group was not cognizable because it assumed her inability to leave her relationship was attributable to domestic violence, and because it understood Matter of A-B- to say that the mention of domestic violence disqualifies a particular social group.” “There are at least two problems with the BIA’s reasoning in Diaz-Reynoso’s appeal. First, as explained, the BIA misunderstood Matter of A-B-’s holding. Second, it is not clear that the reason Diaz-Reynoso was ‘unable to leave’ her relationship was limited to domestic violence. Rather, the BIA assumed that domestic violence was the only reason Diaz-Reynoso was unable to leave her relationship.” “The persecution Diaz-Reynoso fears is undoubtedly the abuse perpetrated by her husband, but before the immigration judge, she advanced evidence of economic, societal, and cultural factors that also may have prevented her from leaving her relationship. These included her financial dependence on her husband, limited education, rural location, and an ingrained Mayan cultural view that a relationship does not end until the man so agrees.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/07/18-72833.pdf

Ninth Circuit finds that DV Victim Demonstrated Government Unwillingness to Protect and Government Acquiescence

The Ninth Circuit has determined that a woman seeking asylum based on domestic violence demonstrated a government unwillingness to protect her and government acquiescence to torture of her when the police accepted a bribe from her abuser and left without speaking to or assisting her. The court did not reach the issue of whether the petitioner had established a cognizable particular social group.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/07/17-72173.pdf

Ninth Circuit Finds that CA Conviction for Attempting to Communicate with a Child with Intent to Commit Lewd or Lascivious Acts Upon the Child is Overbroad and Divisible as a CIMT

The Ninth Circuit has determined that a California conviction for attempting to communicate with a child with intent to commit a lewd and lascivious upon the child is not categorically a crime involving moral turpitude because it includes the intent to commit certain enumerated offenses that are not morally turpitudinous (such as kidnapping). However, the court determined that the statute is divisible among the 15 enumerated offenses. The court then consulted the charging document, with charged the petitioner with intent to commit a violation of section 288 of the Penal Code. The document did not specify a subsection of section 288, and the Ninth Circuit has previously held that a violation of section 288(c)(1) is not a crime involving moral turpitude because it lacked a good-faith reasonable mistake of age defense. However, that concern is negated because section 288.3 of the Penal Code (the attempting to communicate statute) requires the person to know or reasonably know that the victim is a minor. Hence, that statute provides the good-faith reasonable mistake of age defense missing in section 288(c)(1) itself.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/12/17-71727.pdf

Ninth Circuit Finds that CA Murder is Overbroad and Divisible as an Aggravated Felony

The Ninth Circuit has determined that the California murder statute is overbroad when compared to the generic definition of murder because it includes murder of a fetus. However, the court determined that the statute is divisible between murder of a fetus and murder of a person, and therefore concluded under the modified categorical approach that the petitioner was convicted of an aggravated felony.

The full text of Gomez-Fernandez v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/13/19-70079.pdf

Ninth Circuit Finds Approval of VAWA I-360 is not an Admission

The Ninth Circuit has determined that the beneficiary of an approved VAWA self-petition is not admitted for the purposes of cancellation of removal for lawful permanent residents.

The full text of Enriquez v. Barr can be found:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/13/13-72934.pdf

Ninth Circuits Finds Asylum Seeker in Hiding Could not Reasonably Relocate

The Ninth Circuit has determined that an asylum seeker who must remain in hiding to avoid harm cannot reasonably relocate in her country of origin. Though recognizing the regulations governing protection under the Convention Against Torture (unlike those related to asylum and withholding of removal) do not explicitly require internal relocation to be “reasonable,” the court assumed that the analysis would remain the same. The court also rejected the agency’s analysis of the social distinction of the petitioner’s proposed social group consisting of “women resistant to forced marriage proposals,” finding that the requisite distinction was established by the petitioner’s testimony that she was ostracized for refusing a local ruler’s marriage proposal, and that the local ruler has to authority to enforce traditional law in other parts of the country, allowing him in the past to hunt down women who refused his marriage proposals. Finally, the court recognized that inherent in the concept of forced marriage is forced rape, which would qualify as a form of torture.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/14/17-72829.pdf

Ninth Circuit Construes Prior Derivative Citizenship

The Ninth Circuit has determined that former 8 USC 1432(a)(5) requires a child to have obtained lawful permanent residence in the United States prior to age 18 in order to derive citizenship. The concurrence, though recognizing that prior Ninth Circuit precedent mandates this outcome, noted a differing interpretation from the Second Circuit, and concluded that the Ninth Circuit’s interpretation is on “the wrong side of the circuit split.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/19/15-70636.pdf

Ninth Circuit Holds that Asylum Applicant Need not Attach New I-589 with MTR

The Ninth Circuit has determined that a litigant seeking reopen a previously-filed asylum claim can append a copy the previously-filed application with the motion to reopen, and need not attach a new application. In so holding, the court noted that the petitioner was not asserting a new asylum claim, but rather, seeking to pursue the same claim contained in the previously-filed application.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/24/19-72701.pdf

Ninth Circuit Holds that CA Perjury Conviction is an Aggravated Felony

The Ninth Circuit has concluded that a California conviction for perjury is categorically an aggravated felony. In so doing, the court deferred to the Board of Immigration Appeals’ definition of a perjury-related aggravated felony in Matter of Alvarado.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/25/17-70624.pdf