Ninth Circuit Remands Asylum Claimed Based on Family and Land Ownership Particular Social Groups

In a case in which the agency assumed that family and landownership could serve as particular social groups for asylum purposes, the Ninth Circuit reversed the agency’s finding that these social groups were not one central reason for the harm the applicant suffered. The court noted that the agency found that both land ownership and family ties motivated the persecutors, and thus, the nexus analysis was legally erroneous.

“Garcia or members of her family similarly have experienced murder, specific death threats, forcible taking of property, attempted conscription, and retaliation for failed conscription. Furthermore, the timing of the persecution and statements by the persecutor may constitute circumstantial evidence of motive. The cartel in part targeted Garcia’s husband to obtain his property, but Garcia’s husband was still killed even after he had turned over the property deed, which suggests the cartel may have targeted him for reasons beyond the possibility of stealing his property. Beyond that, the cartel then sought out Garcia at her husband’s funeral, a uniquely family affair, threatening her so that she would remain silent about his death. The cartel sought out Garcia once again after she helped her son escape to the United States to avoid the Templars’ recruitment efforts. In this coercive effort, the Templars forced her from her home and took her property. Parada indicates that such sweeping retaliation towards a family unit over time can demonstrate a kind of animus distinct from purely personal retribution. This kind of targeting is sufficient to demonstrate nexus if the petitioner shows via uncontradicted testimony that persecutors specifically sought out the particular social group’ of his family.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/02/18/19-72803.pdf

Ninth Circuit Finds CA Drug Statute Divisible

The Ninth Circuit has determined that California Health and Safety Code section 11350 is overbroad and divisible with respect to the identity of the controlled substance.

The full text of Lazo v. Wilkinson can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/02/26/14-73182.pdf

Ninth Circuit Addresses Exception to Firm Resettlement Bar

The Ninth Circuit has determined that if the government of the third country in which an asylum seeker has resettled is unable or unwilling to protect the asylum seeker from persecution by private parties, the asylum seeker qualifies for an exception to the firm resettlement bar. In this case, which involved a Somali citizen who had obtained refugee status in South Africa, the immigration judge had paradoxically found the petitioner firmly resettled in South Africa, but granted withholding of removal based on past persecution in South Africa.

The full text of Aden v. Wilkinson can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/04/17-71313.pdf

Ninth Circuit Rejects Gang-Based Violence Against Women Claim

The Ninth Circuit has rejected the proposed particular social groups of “Salvadoran women who refuse to be girlfriends of MS gang members” and “Salvadoran women who refuse to be victims of violent sexual predation of gang members,” finding that the groups lacked social distinction. The court acknowledged that the record evidence establishes “generally that women in El Salvador can be ill-treated.”

The full text of Villegas Sanchez v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/11/16-73745.pdf

Eighth Circuit finds that MN Aiding and Abetting Liability is a Match to Federal Definition

The Eighth Circuit has determined that Minnesota’s definition of aiding abetting is no broader than the federal definition.

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

https://ecf.ca8.uscourts.gov/opndir/21/03/201157P.pdf

Eighth Circuit Declines to Extend Realistic Probability Test to Overbroad FL Cannabis Statute

The Eighth Circuit has determined that Florida statutes related to cannabis are overbroad because they include parts of the cannabis plant explicitly excluded from the federal definition. Because the statute was overbroad on its face, the Eighth Circuit determined that the realistic probability test did not apply, even in the context of a petitioner applying for relief from removal.

The full text of Lopez Gonzalez v. Wilkinson can be found here:

https://ecf.ca8.uscourts.gov/opndir/21/03/193412P.pdf

Eighth Circuit Finds that IL Conviction for Aggravated Criminal Sexual Abuse is Aggravated Felony

The Eighth Circuit has determined that an Illinois conviction for aggravated criminal sexual abuse of a child under age 13 qualifies as a sexual abuse of a minor aggravated felony.

The full text of United States v. Leal-Monroy can be found here:

https://ecf.ca8.uscourts.gov/opndir/21/02/192745P.pdf

First Circuit Overturns Adverse Credibility Determination

The First Circuit has overturned an adverse credibility determination based on perceived inconsistencies between in-court testimony and a credible fear interview. The court noted that the credible fear notes are merely the officer’s notes, and not intended to be a full transcript. As such, the agency could not assume that the notes were an entirely accurate and complete record of the petitioner’s fear claim, especially since the credible fear interview only lasted an hour.

The full text of Cuesta-Rojas v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/20-1302P-01A.pdf

Second Circuit Rejects Gang Recruitment Protection Claim

The Second Circuit rejected a gang recruitment-based political opinion asylum claim, finding that opposition to the gangs is not a form of political opinion in the absence of any evidence that the gangs are political entities. The court also rejected the petitioner’s CAT claim - which was premised on the police taking him to the gang and watching gang members beat him and break his arm - because the passage of three months of time before the petitioner left the country and the continued presence of his family in the home country undermined the likelihood of future torture.

The full text of Zelaya-Moreno v. Wilkinson can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/3b5d5ef5-41d1-46ae-adab-dc59deb7d0e1/19/doc/17-2284_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/3b5d5ef5-41d1-46ae-adab-dc59deb7d0e1/19/hilite/

Second Circuit Applies CSPA Age Reduction Formula to F2A Category

The Second Circuit has applied the CSPA’s age reduction formula to minor child of lawful permanent resident whose petitioning parent naturalized. The court determined that in this situation, the number of days the petition was pending should be subtracted from the beneficiary’s biological age to determine if the beneficiary is still under 21, and therefore, became an immediate relative when the parent naturalized.

The full text of Cuthill v. Blinken can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/3b5d5ef5-41d1-46ae-adab-dc59deb7d0e1/7/doc/19-3138_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/3b5d5ef5-41d1-46ae-adab-dc59deb7d0e1/7/hilite/

First Circuit Reverses Denial of Withholding/CAT Claim

The First Circuit has determined that and “IJ's expression of ‘serious doubts"‘— coupled with her later declaration that all such doubts ‘could have been overcome with appropriate corroborating evidence’ — falls just short of an explicit adverse credibility determination.'“

The full text of Molina Diaz v. Wilkinson can be be found here:

http://media.ca1.uscourts.gov/pdf.opinions/15-2321P-01A.pdf

First Circuit Evaluates 245(i) Labor Certification

The First Circuit has determined that the analysis of whether a labor certification is approvable when filed is a “holistic inquiry,” which requires connecting the facts and circumstances of a particular case to the standards for adjudicating labor certifications at the time of filing.

The full text of Oliveira v. Wilkinson can be found here: http://media.ca1.uscourts.gov/pdf.opinions/19-1258P-01A.pdf

CA Ct. of Appeals Grants 1473.7 Appeal When 1016.5 Warnings Said "Will" and not "May'

The California Court of Appeals, Fourth Appellate District, has reversed the denial of a motion to vacate under section 1473.7 of the CA Penal Code, where the defendant initialed a plea form that stated she would be deported, excluded from admission, and denied naturalization, where the defense attorney testified that his custom was to ask about a defendant’s immigration status, where the defendant testified that she understood the immigration warnings to only indicated a possibility (not a certainty) of immigration consequences, and where the defense attorney’s notes erroneously stated that the defendant was a lawful permanent resident (she had DACA).

The trial court denied the motion, finding that the defendant had not proven that a third party was responsible for her misunderstanding of the immigration consequences of the plea. The appellate court reversed, noting that under its decision in Mejia, a defendant’s subjective misunderstanding of the immigration consequences is sufficient. The appellate court also noted that the denial of the defendant’s habeas petition did not prevent her from bringing a 1473.7 motion, as the habeas denial only concluded that her defense counsel did provide substandard representation, a different standard than that required under 1473.7.

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

http://sos.metnews.com/sos.cgi?0121//G057958

DHS Re-designates Syria for TPS

The Department of Homeland Security has re-designated Syria for Temporary Protected Status and extended the protections to current TPS holders for an additional 18 months.

The announcement can be found here:

https://content.govdelivery.com/accounts/USDHS/bulletins/2bdb931

BIA Finds that Prosecutorial Witnesses are PSG Only if Cooperation is Public

The Board of Immigration Appeals has determined that “[i]ndividuals who cooperate with law enforcement may constitute a valid particular social group under the Immigration and Nationality Act if their cooperation is public in nature, particularly where testimony was given in public court proceedings, and the evidence in the record reflects that the society in question recognizes and provides protection for such cooperation.” The Board then denied relief to the respondent in this case because his cooperation with the FBI’s investigation into gang activities consisted of conversations in the jail, and did not include public testimony.

“The public nature of a police report or testimony, while not dispositive, is significant.” “In regards to social distinction, [] there must be evidence that the society in question generally views witnesses as a distinct group before the group will satisfy the social distinction requirement. Thus, it is important to focus on how the relevant society views prosecutorial witnesses.”

The Board noted that the Third Circuit had taken a different (and more generous) approach to the cognizability of social groups comprised of individuals who cooperate with the police, and does not require any type of public testimony.

The full text of Matter of H-L-S-A can be found here:

https://www.justice.gov/eoir/page/file/1361386/download

BIA Authorizes IJ to Determine Fraud without Expert Evidence

The Board of Immigration Appeals has determined that an Immigration Judge “may find a document to be fraudulent without forensic analysis or other expert testimony where the document contains obvious defects or readily identifiable hallmarks of fraud and the party submitting the document is given an opportunity to explain the defects.” In the instant case, “the respondent was questioned about his familiarity with the Commissioner for Education, whose purported signature appears on a December 2009 letter that the respondent submitted in support of his application and referenced in his declaration. The DHS submitted impeachment evidence indicating that a different person was serving as Commissioner for Education at that time. The respondent was also asked about how he obtained a ‘wanted’ flier he had submitted into evidence, and he was given the opportunity to explain why ‘Nigeria’ was misspelled and the signature and text were printed over a seal on the document.”

The full text of Matter of O-M-O- can be found here:
https://www.justice.gov/eoir/page/file/1351501/download

BIA Applies Two-Step Stop Time Rule to Voluntary Departure

The Board of Immigration Appeals has concluded that “[w]here a notice to appear fails to specify the time or place of a respondent’s initial removal hearing, the subsequent service of a notice of hearing specifying this information perfects the notice to appear and ends the accrual of physical presence for purposes of voluntary departure.”

The full text of Matter of Viera-Garcia can be found here:

https://www.justice.gov/eoir/page/file/1360626/download

BIA Finds UT Drug Statute Divisible

The Board of Immigration Appeals has determined that section 58-37-8(2)(a)(i) of the Utah Code, which criminalizes possession or use of a controlled substance, is divisible with respect to the identity of the specific “controlled substance” involved in a violation of that statute.

“It is undisputed that the respondent’s conviction for a class A misdemeanor under sections 58-37-8(2)(a)(i) and (b)(ii) of the Utah Code does not categorically fit within the definition of a controlled substance violation under section 237(a)(2)(B)(i) of the Act because, at all relevant times, schedules I and II of the Utah controlled substances schedules criminalized the possession of substances that are not included in the CSA. It is additionally undisputed that the statute of conviction is divisible, in part, because sections 58-37-8(2)(b) and (d) of the Utah Code, the relevant penalty provisions of the statute, mete out different punishments for violating section 58-37-8(2)(a)(i), depending on the circumstances underlying a particular violation. However, the parties disagree as to whether the Utah statute is divisible with respect to the identity of the particular controlled substance possessed in a violation of section 58-37-8(2)(a)(i)..”

:”However, after reviewing the language of section 58-37-8(2)(a)(i) of the Utah Code, relevant Utah jury instructions and case law, as well as the respondent’s record of conviction, we conclude that the identity of the specific controlled substance underlying a violation of section 58-37-8(2)(a)(i) is an ‘element’ of that statute, rather than a mere ‘means’ of violating it. “ First, the Board noted that “the plain language of section 58-37-8 reflects that penalties for drug offenses under this statute are not based simply on the schedule of the controlled substance involved in an offense. Rather, Utah must prove, and a jury must make findings regarding, a defendant’s criminal history and the identity and the amount of the controlled substance possessed to determine whether he was convicted of a second degree felony, third degree felony, a class A misdemeanor, or a class B misdemeanor. We therefore conclude that an element of section 58-37-8 is the identity of the specific controlled substance involved in a violation of that statute..” The Board also noted that the jury instructions for the statute call for the insertion of the name of the controlled substance at issue. Noting that the state courts permit separate prosecutions for concurrent possession of different substances, the Board noted that “[t]he respondent has not explained how, given the prohibition against double jeopardy, a defendant could be convicted of multiple counts of possession of a controlled substance where the defendant committed a single act of possession involving separate substances, if the identity of the specific controlled substance possessed was simply an alternative means of committing the offense, rather than an element of section 58-37-8(2)(a)(i).” Finally, the Board noted that the indictment in the instant case listed only one substance, another indicator that the substances are elements, not means.

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

https://www.justice.gov/eoir/page/file/1358911/download

Attorney General Doubles Down on Matter of A-B-

In yet another blow to the asylum system just days before the Trump Administration was set to leave office, the Acting Attorney General issued another decision in Matter of A-B-, the horrendous asylum decision issued by Jeff Sessions that seeks to wipe out all forms of asylum related to non-state actor persecution.

Despite a rather scathing opinion from the DC Circuit to the contrary, the Attorney General doubled down on his claim that “complete helplessness” is the same standard that has always been applied to determine if a government is unable or unwilling to control a persecutor. I cannot even begin to describe the sheer absurdity of this statement.

The Attorney General clarified that“[t]he word ‘persecution’ therefore should be read to require that the government in the home country has fallen so far short of adequate protection as to have breached its basic duty to protect its citizens, or else to have actively harmed them or condoned such harm. Where the government is actively engaged in protecting its citizens, failures in particular cases or high levels of crime do not establish a breach of the government’s duty to protect its citizenry.” Furthermore, if a noncitizen “may reasonably relocate within his home country to avoid persecution, then that may show that the failure to prevent private violence is localized and the foreign country is not itself ‘unwilling or unable’ to prevent persecution. Although evidence of localized police apathy or incompetence may indicate a government’s unwillingness or inability to prevent persecution, in many cases the localized apathy is just that—localized. The applicant may receive effective government protection by relocating within their home country, where the attitudes of local authorities may be different.”

The Attorney General reiterated the two-pronged nexus test laid out by the Board of Immigration Appeals: the applicant’s protected status must be both a but-for cause of her persecution and it must play more than a minor role that is neither incidental nor tangential to another reason for the harm or a means to a non-protected end. Nevertheless, the Attorney General was forced to recognize that Fourth Circuit case law only required that the but-for causation be established.

The full text of the new decision in Matter of A-B- can be found here:

https://www.justice.gov/eoir/page/file/1354636/download

Ninth Circuit Grants Request for En Banc Rehearing in Derivative Citizenship Case

The Ninth Circuit has granted a petition for rehearing in Cheneau v. Barr, in which it 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.

My blog post about the original three-judge decision can be found here:

http://www.sabrinadamast.com/journal/2020/8/30/ninth-circuit-construes-prior-derivative-citizenship

The order granting rehearing can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/01/06/15-70636.pdf