Comment

Fourth Appellate District Construes Timeliness Requirements for 1473.7

The Fourth Appellate District has determined that the timeliness of a motion to vacate filed by individual whose conviction pre-dates Penal Code section 1473.7 should be measured, in part, by when the individual became aware of the existence of 1473.7 relief.

“By explaining the scope of the trial court’s discretion under the amended statute, Perez clarified that “reasonable diligence” is not a timeliness requirement for section 1473.7 motions made under subdivision (a)(1), but rather a condition that, if present, requires the court to grant meritorious motions. Conversely, if the condition is lacking, the court is then empowered to exercise its discretion to either consider the merits or deny the motion on timeliness grounds. Here, it is not clear whether the trial court understood that it was making a discretionary decision when it denied Alatorre’s motion as untimely. But of course, it did not have the benefit of Perez’s statutory construction at the time. Nor did it give a clear indication—as the trial court in Perez did—that it would have granted the motion if it understood that it had the discretion to do so. Regardless, the heart of the trial court’s evaluation of timeliness in this case lies elsewhere and requires that we address an issue Perez did not reach: how to analyze whether a petitioner exercised reasonable diligence in cases where the petitioner’s triggering events predate section 1473.7.”

“What event in Alatorre’s life that occurred after section 1473.7 became effective would have given him “a reason to look for the existence of [new] legal grounds for relief” or, at a minimum, “put him on notice of the need to investigate[?]” “[W]e conclude it is most consistent with the meaning and purpose of section 1473.7 to evaluate reasonable diligence in cases where the petitioner’s triggering events predated the law by determining whether or when the petitioner had a reason to inquire about new legal grounds for relief, and assessing the reasonableness of the petitioner’s diligence from that point forward. Just as the triggering events in the statute provide petitioners still in the U.S. with notice of a fact (such as pending deportation), courts must look for an analogous event in the life of petitioners like Alatorre that would provide notice of a change in the law that the petitioner would otherwise have no occasion to learn about (such as the availability of relief under section 1473.7).”

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

http://sos.metnews.com/sos.cgi?1021//D077894

The court subsequently issued two amended opinions, which indicated that the prosecution could not call a prior defense attorney to testify in contradiction to a defendant’s statements about whether counsel advised the defendant about the immigration consequences of a plea because a motion under 1473.7 does not require a showing of ineffective assistance of counsel.

The first set of modifications can be found here:

http://sos.metnews.com/sos.cgi?1121//D077894M

The second set of modifications can be found here:

http://sos.metnews.com/sos.cgi?1121//D077894N

Comment

Comment

Fourth Appellate District Reaffirms Denial of 1473.7 Appeal in Light of Vivar

The Fourth Appellate District has reaffirmed its denial of an appeal of a 1473.7 motion, even after considering the new standards laid out by the California Supreme Court in People v. Vivar.

“Here, with regard to the section 273.5 felony domestic violence charge, no immigration-neutral charge existed. Nor did defendant request or even explore the possibility of an immigration-neutral charge as to this offense. He did plead to, and was convicted on, an apparently immigration-neutral felony, namely, the section 273a child cruelty charge. The record shows no attempt to negotiate a plea leveraging the immigration-neutral count by admitting, for example, solely the section 273a count in place of the section 273.5 count requiring mandatory deportation. Neither does the petition suggest the possibility of having done so. Nor is there any indication whatsoever that such a suggestion would have been acceptable in negotiations with the People or when presented to the trial court. Furthermore, defendant presents no evidence that he ever participated in contemporaneous discussions or negotiations for immigration-neutral charges with the People, or even that he discussed the possibility of immigration consequences⸺other than described below⸺with his counsel. Absent any such record evidence, defendant simply claimed in his declaration, without elaboration or explanation of his basis for knowledge, that counsel did not “explore any immigration neutral charges.” However, “a defendant’s self-serving statement—after trial, conviction,and sentence—that with competent advice he or she would have accepted [or rejected] a proffered plea bargain, is insufficient in and of itself to sustain the defendant’s burden of proof as to prejudice, and must be corroborated independently by objective evidence.”

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

http://sos.metnews.com/sos.cgi?1021//E072782A

Comment

Comment

BIA Finds that Defective NTA Does not Stop Time for Voluntary Departure

The Board of Immigration Appeals has determined that service of a Notice to Appear that is missing the time and date of the first removal hearing does not stop the accrual of physical presence for voluntary departure, even if the respondent is subsequently served with a notice of hearing containing the missing information.

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

https://www.justice.gov/eoir/page/file/1446396/download

Comment

Comment

Eleventh Circuit Construes Consular Nonreviewability Doctrine

The Eleventh Circuit has determined that the doctrine of consular nonreviewability does not deprive a federal court of subject matter jurisdiction over a challenge to a visa denial. However, the court also determined that the government is not required to proffer a factual predicate for a visa denial if the consular officer cites a ground of inadmissibility that specifies discrete factual predicates.

The full text of Del Valle v. Secretary of State can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/201914889.pdf

Comment

Comment

Ninth Circuit Says WA First Deg Assault is a Crime of Violence

The Ninth Circuit has determined that a Washington conviction for first-degree assault is a crime of violence. It distinguished its prior case law on the overbreadth of Washington’s accomplice liability, finding it inapplicable to the elements-based definition of a crime of violence.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/10/07/18-70060.pdf

Comment

Comment

Ninth Circuit Finds Violation of Right to Counsel

The Ninth Circuit has determined that an asylum seeker’s right to counsel was violated when the judge refused to continue a merits hearing that pro bono counsel could not be at due to a conflicting hearing. The decision has a good analysis of the difficulties of obtaining counsel for non-English speaking detainees.

The full decision in Usubakunov v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/01/18-72974.pdf

Comment

Comment

Second Circuit Finds CT Drug Conviction to be Aggravated Felony

The Second Circuit has determined that a Connecticut conviction for possession intent to sell/transportation/manufacture/offer a controlled substance is an aggravated felony and a controlled substance violation.

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

https://www.ca2.uscourts.gov/decisions/isysquery/d36ae3c2-8d70-469e-a1f4-fd7b57c893b4/8/doc/18-1036_18-1835_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/d36ae3c2-8d70-469e-a1f4-fd7b57c893b4/8/hilite/

Comment

Comment

Seventh Circuit Adopts Aggregate Harm Approach to CAT Claims

The Seventh Circuit has determined that when evaluating whether an applicant for protection under the Convention Against Torture has demonstrated a clear probability of torture, the agency must evaluate the aggregate risk of torture. “[W]e adopt the aggregate risk approach for the determination of substantial risk and hold that the agency may address risk factors individually so long as it considers all sources of and reasons for risk cumulatively to determine whether there is a substantial risk of torture,”

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D10-08/C:20-3215:J:Kirsch:aut:T:fnOp:N:2774468:S:0

Comment

Comment

Third Circuit Reinstates CAT Grant to Guatemalan Petitioner Fleeing Gender Violence

The Third Circuit has reinstated an Immigration Judge’s grant of protection under the Convention Against Torture to a Guatemalan woman fleeing gender violence. In so doing, the court noted that the Board of Immigration Appeals erroneously conducted a de novo review of the Judge’s factual findings, instead of reviewing them for clear error.

The full text of Arreaga Bravo v. Attorney General can be found here

https://www2.ca3.uscourts.gov/opinarch/203300p.pdf

A clarified opinion can be found here:

https://www2.ca3.uscourts.gov/opinarch/203300pa1.pdf

Comment

Comment

BIA Determines that Refugee Admission does not Trigger Aggravated Felony Bar to 212(h) Waiver

The Board of Immigration Appeals has determined that a respondent who enters the United States as a refugee, adjusts status one year later retroactive to the date of admission, and is then convicted of an aggravated felony, is not statutorily barred from seeking a 212(h) waiver.

The full text of Matter of N-V-G- can be found here:

https://www.justice.gov/eoir/page/file/1433676/download

Comment

Comment

BIA Affirms that Defective NTA does not Affect Immigration Court Jurisdiction; Opines on Impact of Termination of Parole

The Board of Immigration Appeals has again determined that a Notice to Appear that is lacking the time and date of the first removal hearing does not deprive the Immigration Court of jurisdiction. The Board also noted that parole terminates when a respondent is served with a Notice to Appear, even if it is missing the time and date information. The Board then engaged in a very troublesome analysis of how the termination of parole caused the respondent to resort to her previous status as a person present without admission or parole, making her ineligible for adjustment of status under 245(a) of the INA. This is troubling, as it has long been understood by the courts that expired parole would still meet the “admitted or paroled” requirement for adjustment. This case appears to involve someone who was seeing to adjust in a preference category, and therefore, would have also needed to show that she was also maintaining lawful status at the time of her adjustment application. It also involved a person who originally entered without inspection and then was granted parole to testify in a criminal proceeding. Both of these facts could distinguish this case from that of a person who presented herself at a port of entry and was paroled in, and who is seeking adjustment as an immediate relative. Nevertheless, practitioners should be aware of the potential ramifications of the parole analysis in this case.

The full text of Matter of Arambula-Bravo can be found here:

https://www.justice.gov/eoir/page/file/1435951/download

Comment

Comment

Eleventh Circuit Finds GA Simple Battery Convictions to be Aggravated Felonies

The Eleventh Circuit has determined that Georgia’s simple battery statute is divisible between offensive touching (not a crime of violence) and touching causing injury (a crime of violence). The court also declined to give credit to a state court order “clarifying” the petitioner’s sentence to be a probation-only sentence, finding that the sentence was clearly one that involved a suspended term of incarceration.

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

https://media.ca11.uscourts.gov/opinions/pub/files/201915080.pdf

Comment

Comment

Eleventh Circuit Finds that MN Convictions are Removable Convictions

The Eleventh Circuit has determined that a Minnesota possession of a controlled substance conviction is divisible with respect to the identity of the substance, and that a Minnesota second-degree assault conviction is a crime of violence because it requires either the intentional use of violent force or the inducement of fear of immediate bodily harm. The court also determined that the detention of a detainee who obtains a stay of removal from the federal court is governed by 8 USC 1226, not 8 USC 1231.

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

https://media.ca11.uscourts.gov/opinions/pub/files/201912462.pdf

Comment

Comment

Ninth Circuit Finds Pro Se Pleadings Sufficient to Alert BIA to Issues on Appeal

The Ninth Circuit has determined that an unrepresented litigant sufficiently alerted the Board of Immigration Appeals to the issues on appeal. Petitioner wrote that “the police from my government of Honduras didn’t do nothing to help me.” That statement put the BIA on notice that Petitioner believed the IJ was incorrect in concluding that she had failed to meet her burden of demonstrating that the police would be unable or unwilling to protect her. Additionally, Petitioner wrote that ‘the gangs MS-13 there in all the places in Honduras.’ In context, that statement notified the BIA that Petitioner disputed the IJ’s conclusion that she could relocate safely within Honduras.”

The full text of Nolasco-Amaya v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/28/20-70187.pdf

Comment

Comment

Ninth Circuit Affirms that Improperly Filed Appeal does not Toll Motion to Reopen Deadline

The Ninth Circuit has affirmed that an improperly filed appeal of an in absentia order did not toll the 180-day filing deadline for an exceptional circumstances motion to reopen. “While one could argue that Cui is a victim of ineffective assistance of counsel, she failed to raise any such claim andc ontinues to retain her arguably ineffective counsel before our court on appeal. Because we are limited to reviewing the arguments made in the briefs, we conclude both that the BIA did not abuse its discretion in determining Cui did not timely file a motion to reopen, and that the BIA did not commit legal error in declining to sua sponte reopen her removal proceedings.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/23/18-72030.pdf

Comment