Ninth Circuit Finds CA Arson Conviction is not an Aggravated Felony

The Ninth Circuit has determined that a California arson conviction is overbroad and indivisible compared to the arson aggravated felony ground because the mens rea is broader in the California law than the federal law. “[T]o be convicted under § 844(i), a defendant need not have intended to damage or destroy property covered by the statute. But he must at least have engaged in an intentional act that resulted in damage to or destruction of such property, and in doing so, he must have been subjectively aware of the risk that his actions would result in that harm. By contrast, a defendant may be convicted under California Penal Code § 451(b) for engaging in an intentional act that results in the burning of an inhabited structure or property even if he was not subjectively aware of the risk that his actions would result in that harm.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/01/10/19-71693.pdf

Ninth Circuit Finds that Assaulting a Mail Carrier with Intent to Steal Mail, while Placing the Mail Carrier’s Life in Jeopardy by the Use of a Dangerous Weapon is Crime of Violence

The Ninth Circuit has determined that a federal conviction for assaulting a mail carrier with intent to steal mail, while placing the mail carrier’s life in jeopardy by the use of a dangerous weapon, is a crime of violence. “The ‘use of a dangerous weapon,’ especially when deployed to put the victim’s life in jeopardy, reflects force that is capable of causing death or serious injury.“

The court noted that the crime of assaulting a mail carrier is divisible. “§ 2114(a) is divisible into basic and aggravated offenses—a point on which the parties agree. The basic offense, punishable by ‘not more than ten years,’ is contained in the clause preceding the semicolon. That crime consists of assaulting any person with custody or control of mail matter or other government property with intent to steal the property, or otherwise attempting or successfully robbing the person of the property. The aggravated offense, which follows the semicolon, carries a term of imprisonment of ‘not more than twenty-five years.’ That crime consists of the basic offense committed in one of three aggravated ways: (1) wounding the person with custody or control of mail matter or other government property; (2) placing the person’s ‘life in jeopardy by the use of a dangerous weapon’; or (3) committing a subsequent offense under § 2114(a).”

The court also concluded that the aggravated offense is itself divisible. “Here, the second clause of § 2114(a) presents disjunctive elements, not alternative factual means of committing a single offense. A person commits the aggravated offense under § 2114(a) and exposes himself to an extra fifteen years’ imprisonment if he ‘wounds the person having custody of such mail, money, or other property of the United States, or puts his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense.’ In context, the three items in the aggravated clause are substantively different elements concerning different conduct and involving different proof.”

The full text of US v. Buck can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/01/11/18-17271.pdf

Ninth Circuit Rejects Minor's Improper Service Argument

The Ninth Circuit has rejected the argument by a petitioner that her deportation proceedings should be reopened because she was a minor at the time of apprehension by the immigration officials and no responsible adult was served with a copy of her Order to Show Cause (OSC). The court noted that the petitioner was released on her own recognizance (because immigration officials believed her to be 20 years old) and not to an adult, and therefore, there was no responsible adult to service the OSC upon.

The full text of Jimenez-Sandoval v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/01/13/19-73193.pdf

Fifth Circuit Finds that TX Aggravated Assault Conviction is not a Crime of Violence

The Fifth Circuit has determined that a Texas conviction for aggravated assault cannot qualify as a crime of violence in light of the Supreme Court’s decision in Borden v. United States because it includes a minimum mens rea of recklessness, and the statute is indivisible between the various applicable mens reas.

The full text of US v. Gomez Gomez can be found here:

https://www.ca5.uscourts.gov/opinions/pub/17/17-20526-CR1.pdf

Fifth Circuit Concludes that TX Conviction for Deadly Conduct is a CIMT

The Fifth Circuit has determined that a Texas conviction for deadly conduct qualifies as a crime involving moral turpitude, even though it includes reckless conduct. “Deadly conduct . . . demands an imminent threat of serious physical injury. Because its potential harm is grave, no countervailing, heightened mens rea is necessary for deadly conduct to constitute a CIMT; recklessness suffices.” The court also reaffirmed that the petitioner, who had initially entered the United States without inspection, was admitted to the United States at the time he adjusted status to lawful permanent residence.

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

https://www.ca5.uscourts.gov/opinions/pub/19/19-60699-CV0.pdf

Fifth Circuit Finds TX Conviction for Family Violence is not a Crime of Violence

The Fifth Circuit has determined that a Texas felony conviction for family violence is not a crime of violence in light of the Supreme Court’s decision in Borden v. United States because it includes reckless conduct.

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

https://www.ca5.uscourts.gov/opinions/pub/15/15-40740-CR1.pdf

Fourth Circuit Finds Agency Abused its Discretion by Denying Continuance to U Visa Applicant

The Fourth Circuit has determined that the agency abused its discretion by denying a continuance to a U visa applicant, when the Immigration Judge determined that she was likely to have her application approved. The court noted that the agency relied on “secondary factors” to determine that no good cause existed for a continuance: (1) the petitioner had been “found removable and did not submit any applications for relief” to the IJ; (2) she could still pursue her U visa application and seek a stay of removal from DHS; (3) DHS opposed the motion; and (4) it would not be administratively efficient to grant a continuance.” The agency failed to evaluate any of the primary factors: whether the collateral relief (i.e, the U visa) is likely to be granted and whether the decision on the collateral relief will affect the outcome of the removal proceedings.

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

https://www.ca4.uscourts.gov/Opinions/201943.P.pdf

Fourth Circuit Finds that PSG of Prosecution Witnesses Lacks Particularity

The Fourth Circuit has determined that the proposed particular social group comprises of “prosecution witnesses” lacks sufficient particularity. It should be noted that the petitioner in this matter reported criminal activity to the police, but did not actually testify in court.

The full text of Herrera-Martinez v. Garland can be found here:

https://www.ca4.uscourts.gov/Opinions/201423.P.pdf

First Circuit Finds RI Conviction for Driving Car Without Consent is not Theft Offense

The First Circuit has determined that a Rhode Island conviction for driving a car without the consent of the owner is not a theft offense aggravated felony because it encompasses de minimis conduct, such as joyriding. The court also confirmed that when the statute is facially overbroad, the petitioner does not need to point to an actual prosecution to establish a realistic probability that the statute criminalizes conduct outside the definition of the generic offense.

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

http://media.ca1.uscourts.gov/pdf.opinions/20-1607P-01A.pdf

First Circuit Finds CBP Record of Sworn Statement Insufficient to Sustain Adverse Credibility Determination

The First Circuit has found a record of sworn statement to be insufficiently reliable to sustain an adverse credibility determination where the statement listed a different name in the question and answer section than in the biographic information, listed an incorrect date of birth for the petitioner, and was signed by a border patrol officer months after the alleged encounter with the petitioner.

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

http://media.ca1.uscourts.gov/pdf.opinions/19-1165P-01A.pdf

First Circuit Affirms Matter of Jean Heightened Standard

The First Circuit has determined that the heightened discretionary standard for 209(c) waivers articulated in Matter of Jean is a reasonable interpretation of the statute by the Attorney General. The court also found that the phrase “violent or dangerous crime” is not unconstitutionally vague.

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

http://media.ca1.uscourts.gov/pdf.opinions/20-1587P-01A.pdf

First Circuit Criticizes Reliance on Boston Gang Database

Sitting en banc, the First Circuit has criticized the agency’s reliance on reports from a gang database used by the Boston Police Department, finding insufficient evidence that the documents used to label the petitioner as a gang member were actually probative of gang membership. The court noted that the reports from the database “show no more than a teenager engaged in quintessential teenage behavior -- hanging out with friends and classmates. These social encounters occurred in unremarkable neighborhood locations for this peer group: at a park, at school, in front of one teenager's home, on the benches in an empty stadium. The record lacks any evidence as to why assigning points for those interactions was a reliable means of determining gang membership. Certainly, the fact that the young men were all Hispanic does not permit an inference that any, or all, of them were gang members.”

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

http://media.ca1.uscourts.gov/pdf.opinions/19-1620P2-01A.pdf

My post about the original 3-judge panel decision in this case (which permitted reliance on the gang database documents) can be found here:

https://www.sabrinadamast.com/journal/2020/5/25/first-circuit-permits-reliance-on-gang-database

Eleventh Circuit Adjudicates Habeas

The Eleventh Circuit has determined that a petitioner who is on an order of supervision, subject to an unexecuted deportation order, and facing threatened deportation is “in custody” for the purpose of a habeas statute. The court also concluded that a petitioner who departed the United State prior to the issuance of a deportation order did not execute the order, and upon return to the United States, is subject to the execution of the order.

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

https://media.ca11.uscourts.gov/opinions/pub/files/202012487.pdf

Ninth Circuit Reverses Interpretation of Reinstatement Statute

The Ninth Circuit, sitting en banc, has determined that an inadmissible non-citizen who reenters the United States without obtaining consent from the US government is subject to reinstatement of a prior removal order, regardless of his manner of entry. In this case, the non-citizen was deported due to a drug conviction, which rendered him inadmissible at the time of his reentry through a port of entry.

“The record contains no indication that Tomczyk applied for, let alone received, a waiver of inadmissibility between his deportation in July 1990 and his reentry in July 1991, and Tomczyk does not argue otherwise. Nor does Tomczyk cite any authority suggesting that the INA permitted a border official to effectively grant such a waiver merely by allowing the vehicle in which he traveled to cross the border. Tomczyk’s qualifying conviction thus rendered him ineligible to be admitted to the United States at the time of his reentry. Because the law forbade Tomczyk from gaining admission into the United States in July 1991, we hold that his reentry was illegal under the plain meaning of § 1231(a)(5).”

The en banc decision in Tomczyk v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/12/14/16-72926.pdf

My blog post on the original 3-judge panel decision can be found here:

https://sabrina-damast.squarespace.com/config/pages/543afe51e4b005acd181a792

An amended en banc decision can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/11/16-72926.pdf

Ninth Circuit Finds Arizona Marijuana Statute Divisible

The Ninth Circuit has determined that Arizona Revised Statutes 13-3405(A)(4), which criminalizes certain acts involving marijuana, is overbroad and divisible with respect to the definition of a crime involving moral turpitude. Although the court concluded that the various acts criminalized - transportation, importation, etc. - are alternative elements of the statute, it also concluded that offenses involving a very small quantity of marijuana for sale are not crimes involving moral turpitude.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/12/22/18-70393.pdf

Ninth Circuit Finds that Multiple Convictions with Aggregate Sentences of 5 Years Bars Cancellation

The Ninth Circuit has determined that a petitioner convicted of multiple criminal offenses, for which the aggregate sentences were 5 years or more, is ineligible for cancellation of removal for nonlawful permanent residents.

The full text of Ramirez-Medina v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/12/22/16-73325.pdf

Eighth Circuit Finds Iowa Domestic Abuse to be Crime of Violence

The Eighth Circuit has determined that an Iowa conviction for domestic abuse - which requires either an intent to inflict serious injury or the use or display of a dangerous weapon - qualifies as a crime of violence under the federal sentencing guidelines. Given the similar definition of a crime of violence in the immigration and sentencing contexts, this case will likely have precedential impact in the immigration context.

The full text of US v. Tinlin can be found here:

https://ecf.ca8.uscourts.gov/opndir/21/12/202862P.pdf

Third Circuit Finds it Lacks Jurisdiction to Review Untimely VAWA MTR

The Third Circuit has determined that it lacks jurisdiction to review the agency’s determination not to waive the filing deadline for a VAWA-based motion to reopen.

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

https://www2.ca3.uscourts.gov/opinarch/202509p.pdf

Third Circuit Finds that Arrest and/or Physical Harm not Required to Establish Well-Founded Fear of Persecution

The Third Circuit has determined that an asylum seeker is not required to “shelter in place” until he is arrested by a repressive regime, nor is he required to present evidence of physical harm, to establish a well-founded fear of future persecution. “As we have stressed, but apparently must emphasize yet again, we have never required someone to actually subject themself to physical harm or arrest before finding that his or her fear of returning to a country is reasonable. Merely stating such an absurdity demonstrates how illogical and impractical such a requirement would be. The contrary proposition (which the BIA relied upon here) is so unreasonable that it should have been self-evident to any neutral tribunal.” The court also reminded the BIA that remaining in hiding is not the same as safely relocating within a country. Finally, the court concluded that there is a pattern or practice of persecution of political opponents in the Democratic Republic of the Congo.

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

https://www2.ca3.uscourts.gov/opinarch/203565p.pdf

Second Circuit Addresses Effect of Withdrawal of Application for Admission

The Second Circuit has determined that it has no jurisdiction to review the discretionary determination to permit a non-citizen to withdraw their application for admission in removal proceedings, unless the petitioner raises a legal or constitutional question in the appeal. The court also remanded the case for the Board of Immigration Appeals to decide if the Immigration Judge’s finding that the petitioner was inadmissible has any legal effect given the subsequent withdrawal of his application for admission.

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

https://www.ca2.uscourts.gov/decisions/isysquery/b245cc56-8960-49b4-b3a0-6f511c438894/9/doc/19-3001_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/b245cc56-8960-49b4-b3a0-6f511c438894/9/hilite/