These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
The Ninth Circuit has rejected the proposed particular social group of “young Christian males who oppose gang membership.” In so doing, the court noted that “the evidence does not compel the conclusion that Honduran society would distinguish between a young Christian male who resists gang recruitment and any other young man who seeks to avoid gang membership.”
The full text of Santos-Ponce v. Wilkinson can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/02/10/18-72433.pdf
The Ninth Circuit has rejected the proposed particular social group comprised of “Mexican wealthy business owners.” “Substantial evidence supports the holding that Macedo failed to establish a particular social group. First, the Agency was correct that Macedo’s proposed group was not socially distinct. The record does not include evidence that Mexican society perceives wealthy business owners as a distinct group, and the 2013 United States Department of State’s Country Report on Mexico states that kidnapping for ransom occurs at all socioeconomic levels. Second, the proposed group lacks particularity because it could include large swaths of people and various cross-sections of a community. Finally, being a wealthy business owner is not an immutable characteristic because it is not fundamental to an individual’s identity.”
With respect to his protection under the Convention Against Torture, the court found sufficient testimonial evidence that he was harmed by police officers. The court reiterated that there is no “rogue official” exception to torture perpetrated by government officials.
The full text of Macedo Templos v. Wilkinson can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/02/09/15-73122.pdf
The Ninth Circuit has determined that a Canadian who was permitted to enter the United States as a passenger in a vehicle through a port of entry has not illegally re-entered the United States for the purpose of reinstatement. The court distinguished this scenario from any situation in which a petitioner uses fraud or other types of deceit to re-enter, noting that Canadians are permitted to enter the United States without visas.
The full text of Tomczkyk v. Wilkinson can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/02/03/16-72926.pdf
The Ninth Circuit has reaffirmed that a Notice to Appear (NTA) missing the time and location information of the first removal hearing can still vest jurisdiction with the Immigration Court once it is filed with the court. However, in the context of an illegal reentry case, the defective NTA may raise due process violations, especially when there is some doubt as to whether the subsequent hearing notice was actually served on the petitioner.
The full text of United States v. Bastide Hernandez can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/02/02/19-30006.pdf
The court issued an amended opinion on July 12, 2021, remanding for the District Court to determine if the petitioner had met the requirements articulated in US v. Palomar-Santiago: https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/12/19-30006.pdf
The Ninth Circuit has reaffirmed that attempted rape is harm rising to the level of persecution. “The BIA erred in imposing evidentiary requirements of ongoing injury or treatment beyond the sexual assault itself in order to show persecution. Kaur’s credible testimony about the attempted gang rape is sufficient to show persecution. Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
The court also reversed the agency’s finding that the petitioner was not harmed by government actors. “The administrative record reflects that when Kaur’s persecution began, the Congress Party was already part of the government in Punjab: it held 46 out of 117 seats in the state legislature and was a key opposition party with the ability to shape laws and exert influence over the civil service. The Congress Party became the ruling party in the state of Punjab in March 2017, mere months after Congress Party agents attempted to gang rape Kaur, telling her that they were doing this to her because she was ‘working for the Mann Party’ and ‘not supporting [the Congress Party] in any way.’ Thus, some of the more severe forms of Kaur’s persecution occurred during the Congress Party’s electoral rise. Furthermore, the last known persecutory event against Kaur and her family occurred in 2018, a full year after the Congress Party’s electoral victory made it the official head of the state government. Finally, from the time Kaur appeared before the IJ through the present, the Congress Party has remained the leader of the Punjab government.” “[W]hen a petitioner suffers persecution at the hands of a major political party both during and after its rise to power from a minority voting bloc in the legislature to the head of government, the source of the persecution is the government itself.”
The full text of Kaur v. Wilkinson can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/01/29/18-73001.pdf
The Fourth Circuit reversed the dismissal of unlawful delay claims brought by U visa applicants who filed their applications for status in 2015 and 2016, and remanded the claims for further proceedings before the District Court. The court, however, found no authority to compel the agency to issue pre-wait list employment authorization to the applicants.
The full text of Gonzalez, et. al v. Cuccinelli can be found here:
The Eighth Circuit has joined the Ninth Circuit in finding that a petitioner’s mental health struggles must be considered by the agency when determining if a petitioner has been convicted of a particularly serious crime. “However, we fail to understand how a petitioner’s mental health can never be relevant to the circumstances and underlying facts”of the conviction, especially, as the BIA noted, in light of the impact mental illness can have on an individual’s behavior. As such, we find that the BIA’s categorical bar of consideration of mental health evidence, as contemplated in Matter of G-G-S-, is an arbitrary and capricious construction of 8 U.S.C. § 1231, and we reject such a categorical evidentiary bar in the particularly serious crime analysis.”
The full text of Shazi v. Wilkinson can be found here:
The Eighth Circuit has reversed a finding that there is a serious reason to believe that a petitioner committed a serious nonpolitical crime outside the United States. In so doing, the court concluded that the “serious reasons for believing” standard requires a finding of probable cause before an alien can be subject to the mandatory bar.
“The statutory framework and relevant case law direct us to require something more than “some evidence” in order to meet the probable cause standard in cases involving “serious reasons for believing” that a serious nonpolitical crime was committed. The parties did not cite, and we could not find, a case in which a court has found a Red Notice, alone, is sufficient to meet this standard. Also complicating the analysis in this case is whether or not the charges giving rise to the Red Notice had been dismissed. Barahona submitted evidence that the charges had been dismissed. DHS did not refute and did not ask for additional time to resolve whether this was accurate. The BIA erred in this case when it failed to make a probable cause finding, particularly in light of the dispute regarding the underlying criminal charges that gave rise to the Red Notice.”
The full text of Barahona v. Wilkinson can be found here:
https://ecf.ca8.uscourts.gov/opndir/21/02/201546P.pdf
An amended version of the opinion can be found here:
The Second Circuit has determined that the conditions in 41-bis detention (a detention setting for mafia associates) in Italy do not amount to torture, despite including prolonged solitary confinement, limited access to counsel and family, and (at times) lack of access to medical care. The decision drew a lengthy dissent, which characterized solitary confinement as “one of the true horrors of the modern-day penal system.”
The full text of Gallina v. Wilkinson can be found here:
The Seventh Circuit has concluded that it may have jurisdiction to review a hardship determination in the context of a cancellation of removal application as long as the appeal “raises either pure legal questions or the application of a legal standard to undisputed or established facts.” The court did not ultimately have to reach a definitive conclusion on this issue, finding that the petition for review raised pure legal issues. “The first is whether an IJ commits error when he fails to make an express credibility finding, and then holds that gap in the record against the applicant. Such an error would go to the procedural sufficiency of the hearing, which is a legal point. The second question relates to the hardship issue and the IJ’s and Board’s application of the standard for such evidence to the facts before them.”
The court concluded that “when an IJ says nothing about credibility, yet later based his decision on the applicant’s failure to produce evidence supporting otherwise undisputed testimony, he commits procedural error.” “The statute requires the IJ to make an express credibility finding, both to ensure that the evidence is properly assessed, and to facilitate meaningful review by both the Board and the court. Because the IJ did not do so here, we cannot rely on this ground for his decision. Perhaps the Board had a similar concern, as it chose to rest its decision exclusively on the hardship ground.”
With respect to the hardship determination, the court recognized that “the Board does not commit an ‘error of law’ every time an item of evidence is not explicitly considered or is described with imperfect accuracy, but where, as here, some facts important to the subtle determination of exceptional and extremely unusual hardship have been … seriously mischaracterized, we conclude that an error of law has occurred.” “At some point, the individual hardship described by an IJ will diverge too much from the actual hardship shown in the record. The error in such a case is procedural: the failure to take into account the entire record, no matter what the final conclusion might be.” The IJ and the Board cannot simply announce that there is no evidence on a point that is in fact well covered in the record. Between the IEP and Mitten’s testimony, there was ample disinterested evidence on which to base an assessment of the severity of Melanie’s condition. We have no way of knowing whether, had the IJ and Board looked at this evidence, they still would have found that Martinez-Baez failed to establish the requisite hardship to a qualifying relative.”
The full text of Martinez-Baez v. Wilkinson can be found here:
The Seventh Circuit has concluded that stop-time rule articulated in Pereira v. Sessions does not apply to Orders to Show Cause that are missing the time and location information for the first deportation hearing. In addition, the court reaffirmed that an individual in deportation proceedings cannot apply for cancellation of removal.
The full text of Perez-Perez v. Wilkinson can be found here:
The Sixth Circuit has determined that exceptional circumstances prevented a 12-year-old minor whose mother had given birth 10 days before her hearing from attending her removal hearing. “E.A.’s case involves numerous impediments that prevented her from attending her immigration hearing, including her inability to change the location of the hearing, her inability to secure transportation from New York to Memphis, and her mother’s recent childbirth.” “In sum, we conclude that the BIA abused its discretion by denying E.A.’s motion to reopen. E.A.’s mother’s recent childbirth is a serious medical event, which coupled with E.A.’s minor age, her difficulty obtaining transportation, and her difficulty navigating the immigration system without assistance, constitute “exceptional circumstances” necessitating rescission of the in absentia removal order.” The court also noted that the E.A. was not required to show prima facie eligibility for relief in order to have her in absentia removal order rescinded.
The full text of EACA v. Rosen can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0011p-06.pdf
The Sixth Circuit has determined that whether an immigrant has established exceptional and extremely unusual hardship for cancellation of removal is a mixed question of law and fact, and the court maintains jurisdiction to review a hardship determination based on undisputed facts.
The full text of Singh v. Rosen can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0005p-06.pdf
The Fifth Circuit has concluded that Temporary Protected Status (TPS) is not an admission for adjustment of status purposes. However, the Court noted that a TPS holder could obtain advance parole, travel abroad, and return to the United States. Their return would meet the requirement of being inspected and paroled for adjustment of status.
The full text of Solorzano v. Mayorkas can be found here:
https://www.ca5.uscourts.gov/opinions/pub/19/19-50220-CV0.pdf
The Fifth Circuit has concluded that a conviction for unauthorized use of a social security number is a crime involving moral turpitude. The Court noted that “[a] § 408(a)(7)(B) offense necessarily involves intentional deception: a person commits the offense if, ‘with intent to deceive’, she ‘falsely represents a number to be the social security account number . . assigned . . . to [her] or to another person’ when that number has not been assigned to her or such other person.” The Court then concluded that “deceptive intent is sufficient for an offense to constitute a CIMT.”
The full text of Munoz-Rivera v. Wilkinson can be found here:
https://www.ca5.uscourts.gov/opinions/pub/19/19-60376-CV0.pdf
The Fourth Circuit has published another case affirming that family ties can form a particular social group for asylum and withholding of removal purposes.
“The record before us conclusively establishes a nexus between the death threats made against Diaz de Gomez and her ties to her nuclear family. Three facts are particularly probative of this nexus. Most notably, the threats to Diaz de Gomez’s family members first began when multiple members of that family, including Diaz de Gomez, witnessed a gang killing in 2008. Shortly thereafter, Diaz de Gomez’s husband started receiving threats, including threats to kill Diaz de Gomez and other family members if he did not agree to work for the gang. Second, after Diaz de Gomez’s husband fled to the United States, her brother started receiving death threats to coerce him to join the gang. And third, Diaz de Gomez began to receive threats personally in 2015, after two key events: (1) the April 2015 moped collision initiated by the Zetas when gang members saw Diaz de Gomez with her brother, who had refused to join the gang and was murdered a few months later; and (2) Diaz de Gomez’s parents’ refusal to acquiesce to the gang’s attempts at extortion. In both instances, the gang threatened to kill the brother and parents’ family members if they did not agree to the gang’s demands. The timing and context of these threats lead to the unmistakable conclusion that Diaz de Gomez was targeted, at least for one central reason, based on her relationship to her family. In light of this evidence, the record conclusively shows that more than one central reason motivated the gang’s death threats against Diaz de Gomez, namely, her and her family’s refusal to acquiesce to the gang’s several demands, and Diaz de Gomez’s familial ties to her brother, husband, and parents. As we previously have emphasized, the fact that the gang sought to recruit Diaz de Gomez and her family members does not preclude a finding that her familial ties were another central reason that she was persecuted by the gang, establishing the required nexus.“
The Court further concluded that the petitioner had demonstrated that the Guatemalan government was unable or unwilling to control her persecutors. “Diaz de Gomez provided credible testimony that she reported the escalating threats against her to the police in 2015, following the moped accident. She stated that she had been afraid to report the threats earlier, because people tend to “just show up dead” after filing police reports. To support her allegations, she showed law enforcement officers the written messages she had received, and also provided audio recordings of the telephone threats. She reported the threats to both the public affairs ministry and to the local police. Neither law enforcement agency took any action in response to the reports; no one was arrested, and officials never provided Diaz de Gomez any updates on the investigation. She returned to the police station twice to check on the status of the investigation, and was told both times that the person in charge of her case was unavailable. A friend who followed up after Diaz de Gomez left for the United States received the same response. This lack of action by law enforcement authorities is consistent with evidence of country conditions that Diaz de Gomez submitted to corroborate her claims. The 2015 Department of State Country Report on Human Rights Practices noted Guatemala’s widespread institutional corruption, particularly in the police and judicial sectors, including the involvement of police and military officers in drug trafficking and extortion. Referencing the Zetas specifically, one 2010 academic study explained that the gang has a “propensity to attack state institutions,” including by bribing police and judicial officials and infiltrating the gang’s supporters into the civil service. Approximately $1 billion of drug proceeds is used to bribe Guatemalan government officials annually, and corruption is rampant at the local level. Notably, organized crime has infested so many Guatemalan] state institutions as to render them virtually worthless, and the government has fail[ed] to provide even a minimal level of domestic security. This evidence of widespread gang influence and corruption, together with Diaz de Gomez’s credible testimony regarding her fear of reporting the Zetas and the failure of law enforcement to investigate her claim, leads to the inescapable conclusion that the government was unwilling or unable to protect her from her persecutors.”
The full text of Diaz de Gomez v. Wilkinson can be found here:
The Fourth Circuit has determined that the Board of Immigration Appeals’ (BIA) definition of particularity, as defined in Matter of W-G-R-, is not reasonable.
“First, the BIA’s description of the particularity requirement in W-G-R impermissibly conflates it with the social distinction requirement. The particularity requirement flows quite naturally from the language of the statute and is necessary to ensure there is a clear benchmark for determining who falls within the group. As such, particularity is a definitional question—an inquiry meant to ensure there is an adequate benchmark for setting the boundaries of the group.” “Similarly, the social distinction requirement flows from the statute and is necessary to ensure that the PSG is perceived as a group by society. Social distinction thus asks whether the home society actually does recognize that group as being a distinct and identifiable group.”
“Critically, the requirements serve distinct purposes, and it is important to consider them separately and with integrity to their purposes. The BIA’s articulation of particularity in W-G-R-, however, fails to do this. More specifically, the BIA claims there is some overlap between the particularity and social distinction requirements because both take account of the societal context specific to the claim for relief. In general, there is nothing unreasonable about overlap among legal elements or requirements. That happens all the time in the law. But what the BIA calls overlap is actually the incorporation of the social distinction requirement into the particularity requirement. According to the BIA, the particularity question is whether the group can be described in sufficiently distinct terms that it would be recognized, in the society in question, as a discrete class of persons.d. If that is true, the particularity inquiry requires an analysis into whether the PSG is an identifiable, recognized group from the perspective of the pertinent society. That inquiry, however, is essentially the same analysis the BIA requires for social distinction. This conflation of the particularity requirement with the social distinction requirement not only creates an analytical muddle but also renders the BIA’s third part of the PSG test—social distinction—surplusage.”
“The BIA unreasonably grounded its rejection of the PSG in W-G-R- in part on the fact that it could further subdivide the group in any number of ways—by age, sex, or background or by level of involvement with the gang. We fail to see how this reasoning provides clarity to the group’s boundaries, as it only points out that there are smaller parts to any whole. What matters is not whether the group can be subdivided based on some arbitrary characteristic but whether the group itself has clear boundaries.”
“Here, the boundaries of Amaya’s proposed PSG—“former Salvadoran MS-13 members”—are clear. On its face, ‘former Salvadoran MS-13 members’ contains several self-limiting features that provide clear benchmarks for the boundaries of the group. First, the reference to a single notorious gang leaves no ambiguity as to how a ‘gang’ might be defined. Second, the group only includes people of Salvadoran nationality, eliminating many people with MS-13 affiliation from other countries. Third, and most significantly, the group does not include those who never joined the MS-13 gang. All those self-limiting features baked into the definition of the group aid in its determinacy.”
“Indeed, there are many ways one can become a former member of a group, and those differences may be fatal to an argument that the alleged persecution was on account of membership in the PSG. But they are irrelevant to the particularity inquiry. Further specification of how one becomes a former member does not more clearly define the boundaries of the group; instead, it arbitrarily makes the group smaller. It is already sufficiently clear who is a former member of a group—it is someone who (1) joined the group and (2) is no longer in the group.”
The full text of Amaya v. Rosen can be found here:
https://www.ca4.uscourts.gov/Opinions/191619.P.pdf
An amended version of the opinion can be found here:
The First Circuit has determined that the Board of Immigration Appeals “abused its discretion in this case because it failed to follow its own precedents, persuasive circuit law, and DHS policies” when it denied a timely motion to reopen filed by an individual placed on the U visa waitlist and granted deferred action. Because the petitioner had asked for reopening and remand to seek a continuance before the Immigration Judge, the Court determined that the standard in Matter of Sanchez Sosa was the appropriate standard to apply. “The Board itself has also found that a U visa waitlist determination warranted reopening and remand, using the Sanchez Sosa standard, in at least two unpublished decisions.”
The full text of Granados Benetiz v. Wilkinson can be found here:
The First Circuit has remanded an asylum claim filed by an Iraqi who worked as a contractor for the US military, assuming that “Iraqis who provided assistance to the U.S. military” could be a cognizable social group for asylum purposes.
The full text of Al Amiri v. Rosen can be found here:
The Biden Administration has issued a 100-day pause on deportations (with certain exceptions), effective immediately, and a new list of enforcement priorities, effective 2/1/21. They have also rescinded a number of Trump administration immigration memos.
https://www.dhs.gov/sites/default/files/publications/21_0120_enforcement-memo_signed.pd
UPDATE: The deportation moratorium has been temporarily blocked by a federal court, pending further litigation. However, the new list of enforcement priorities is in effect.
