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Ninth Circuit Finds that Hawaii's Second-Degree Robbery Statute is Divisible

The Ninth Circuit has determined that Hawaii’s second-degree robbery statute is divisible. Subsection (b), which requires the defendant to “threaten[] the imminent use of force against the person of anyone who is present with intent to compel acquiescence to the taking of or escaping with the property” matches the definition of a crime of violence.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/10/21-10133.pdf

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Ninth Circuit Finds Oregon First Degree Residential Burglary is a Burglary Aggravated Feony

The Ninth Circuit has determined that Oregon’s first-degree residential burglary statute is a categorical match to the definition of a burglary aggravated felony. In so doing, the court rejected the argument that the statute includes entering the curtilage of the building, or that statute’s occupancy requirement is too intermitent.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/10/20-73583.pdf

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Ninth Circuit Determines that Federal Conviction for Maliciously Damaging Property by Means of an Explosive is not COV

The Ninth Circuit has determined that a federal conviction for maliciously damaging or destroying property by means of an explosive is not a categorically crime of violence because it criminalizes destruction of the defendant’s property.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/13/19-56110.pdf

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Ninth Circuit Finds Past Persecution based on Threats and Harm to Others

The Ninth Circuit has determined that a Nicaraguan protestor experienced past persecution in the form of direct threats and witnessing the shooting of a fellow protestor and friend. “Flores Molina was publicly marked as a terrorist and threatened with torture over social media by government operatives, repeatedly verbally threatened with death by supporters of the Ortega regime, received a death threat painted on his home by masked men likely affiliated with the government, and received a second death threat—this time during a direct confrontation—after he was seriously beaten by six members of the Sandinista Youth. In addition, Flores Molina had a near confrontation with an armed paramilitary group that located him at a hideaway. The threats were credible given the history and context of the Ortega regime’s killing and torture of its political opponents. Indeed, Flores Molina witnessed the killing of his friend and fellow protester when his friend was shot in the head at a demonstration.” “The progression of threats and violence that Flores Molina experienced was set against the well-documented backdrop of the Ortega regime’s violent crackdown on members of the political opposition.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/13/19-73028.pdf

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Ninth Circuit Rejects First Amendment Challenge to Alien Smuggling Statute

The Ninth Circuit has rejected a facial overbreadth challenge to the alien smuggling statute, finding that “‘encouraged’ refers to soliciting or aiding and abetting criminal conduct, and section 1182(a)(6)(E)(i) therefore applies to the solicitation or facilitation of specific unlawful activity—illegal entry or attempted entry into the United States.” The court further noted that “[t]o the extent that cases under section 1182(a)(6)(E)(i) have involved speech, that speech was accompanied by some ‘affirmative act of help, assistance, or encouragement’ that was either integral to an alien’s illegal entry or ancillary to actions ordinarily understood as smuggling.”

The full text of Marquez-Reyes v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/14/17-71367.pdf

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Ninth Circuit Limits Federal Court Review of Bond Denials

The Ninth Circuit has determined that the determination of whether a particular noncitizen poses a danger to the community is a discretionary determination, which a federal court may not review. “What one immigration judge may find indicative of a propensity for danger, another may see as progress toward redemption. This is exactly the type of discretionary judgment that § 1226(e) insulates from judicial review.”

The court further rejected the petitioner’s assertion that due process required the Immigration Judge to consider alternatives to detention before deeming him to be a danger to the community. “Due process does not require immigration courts to consider conditional release when determining whether to continue to detain an alien under § 1226(c) as a danger to the community.”

The full text of Martinez v. Clark can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/15/21-35023.pdf

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Ninth Circuit Upholds Denial of MTR on Credibility Grounds

The Ninth Circuit has permitted the agency to rely on a prior adverse credibility determination premised on the applicant’s failure to establish his true identity when adjudicating a motion to reopen to pursue asylum. The court found that the issue of the applicant’s identity remained relevant to the new asylum evidence.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/16/17-72389.pdf

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Fifth Circuit Finds that TX Conviction for Felony Injury to a Child is Deportable Offense

The Fifth Circuit has determined that a Texas conviction for felony injury to a child is a crime of child abuse. The court recognized that the statute is overbroad because it criminalizes injury to the elderly and injury to the disabled, but also determined that the statute is divisible between between victim classes.

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

https://www.ca5.uscourts.gov/opinions/pub/20/20-60952-CV0.pdf

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Third Circuit Finds that NJ Conviction for Engaging in Sexual Conduct which would Impair or Debauch the Morals of a Child is Crime of Child Abuse

The Third Circuit has concluded that a New Jersey conviction for “engaging in sexual conduct which would impair or debauch the morals of a child” is a crime of child abuse, noting that the use of the word “would” indicates a probability (rather than a mere capacity) to cause harm to the child. The court also analyzed state case law which indicated that the conduct must have a tendency to cause harm to the child.

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

https://www2.ca3.uscourts.gov/opinarch/202651p.pdf

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SCOTUS Eliminates Review of Factual Determinations Connected to Discretionary Relief

The Supreme Court has determined that federal courts lack jurisdiction to consider challenges to the agency’s factual findings in connection with certain types of discretionary relief (such as adjustment of status). Perhaps worse, both the majority and the dissent recognize that this decision will likely foreclose any review of denials of adjustment of status (including those denied based on legal determinations, rather than factual findings) outside of the removal context.

As the dissent recognizes, this is a terrible decision that effectively leaves applicants with no way to correct agency errors.

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

https://www.supremecourt.gov/opinions/21pdf/20-979_h3ci.pdf

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AG Says that Agency Can Consider Mental Health Conditions in Particularly Serious Crime Determination

The Attorney General has determined that the agency may consider an applicant’s mental health conditions when determining if the applicant has been convicted of a particularly serious crime. “In some circumstances, a respondent’s mental health condition may indicate that the respondent does not pose a danger to the community— for instance, where the respondent ‘suffered from intimate partner violence, was convicted of assaulting his or her abuser, and reliable evidence showed that the individual’s diagnosed post-traumatic stress disorder had played a substantial motivating role in the assault.’ Of course, an individual may pose a danger to the community notwithstanding a mental health condition, and in those cases, the ‘particularly serious crime’ bar to asylum and withholding of removal may apply. But the potential relevance of mental health evidence to the dangerousness inquiry suffices to establish that such evidence should not categorically be disregarded, as G-G-S- held.”

The full text of Matter of B-Z-R- can be found here:

https://www.justice.gov/eoir/page/file/1504486/download

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Eleventh Circuit Requires Petitioner to Show Substantial Prejudice Resulting from Violation of Right to Counsel

The Eleventh Circuit has declined to address whether a petitioner has a right to counsel during an immigration judge’s review of a negative reasonable fear determination. In this case, the petitioner had been issued a final order of administrative order of removal due to an aggravated felony conviction. The court instead determined that even if such a right exists, the petitioner must show substantial prejudice stemming from the violation of that right, and the petitioner failed to do so in this case.

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

https://media.ca11.uscourts.gov/opinions/pub/files/202012521.pdf

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Ninth Circuit Finds that CA Conviction for Corporal Injury of a Child is a Crime of Violence

The Ninth Circuit has determined that a California conviction for inflicting corporal injury on a child is a crime of violence because the statute requires proof that the punishment or injury inflicted on the child resulted in a traumatic condition.

The full text of Olea-Serefina v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/05/19/20-72231.pdf

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Seventh Circuit Lays Out Timeliness Factors for Objections to Incomplete NTAs

The Seventh Circuit has laid out a number of factors to assess when determining if a petitioner made a timely objection to a Notice to Appear that was lacking the time and date of the first hearing. These factors include: how much time passed, in absolute terms, between the receipt of the Notice and the raising of the objection; did the immigration court set a schedule for filing objections, and did the objection comply with that schedule; and how much of the merits had been discussed or determined prior to the objection? In addition, the court may consider: if the recipient does not speak English, did she object promptly after receiving adequate translation services and notice; did the person have legal counsel at the outset, and if she obtained counsel only later, did counsel object promptly after entering the case; and did the noncitizen file any prior objections but omit this objection?

The full text of Arreola-Ochoa v. Garland can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2022/D05-17/C:21-1179:J:Wood:aut:T:fnOp:N:2877448:S:0

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Fifth Circuit Finds that 8 USC 1229a(c)(7)(C)(iv)(III) Presents Question of Law

The Fifth Circuit has determined that the standards for reopening to pursue VAWA cancellation of removal —found at 8 USC 1229a(c)(7)(C)(iv)(III) — present a mixed question of fact and law that the court has jurisdiction to review. Thus, the court examined whether the petitioner had established extreme hardship or extraordinary circumstances that warranted reopening.

“We need not—and do not—determine the precise contours of ‘extraordinary circumstances or extreme hardship to the alien’s child’ with our opinion today. Nor, indeed, did the BIA in its decision. But whatever the precise contours of that standard, we can say confidently that the ordinary (terrible) circumstances of a VAWA-based motion to reopen and the usual hardships of a relocation do not suffice. Congress has given petitioners an opportunity to seek relief beyond the usual filing deadline, but it limits that opportunity to extraordinary or extreme cases.”

The full text of Pena-Lopez v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/20/20-60911-CV0.pdf

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Fourth Circuit Reverses Injunction on Burdens of Proof in Bond Proceedings

The Fourth Circuit has reversed a class-wide injunction requiring DHS to bear the burden of proof on flight risk and danger to the community in bond proceedings. The court concluded that “1252(f)(1) expressly precludes ‘jurisdiction or authority to enjoin or restrain’ provisions of the immigration laws, including § 1226(a), on a class-wide basis.”

With respect to the claim of an individual class member that DHS should bear the burden of proof in bond proceedings, the Court concluded that noncitizens “are due less process when facing removal hearings than an ordinary citizen would have.” The court concluded that the procedures employed in bond hearings that place the burden of proof on the non-citizen comply with the requirements of due process. The court acknowledged that this creates a circuit split with the First Circuit.

Finally, the court also rejected the argument that due process requires an immigration judge to consider a non-citizen’s ability to pay when setting a bond amount. The court acknowledged that this creates a circuit split with the Ninth Circuit.

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

https://www.ca4.uscourts.gov/opinions/201828.P.pdf

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Third Circuit Finds Ineffective Assistance of Counsel for Failure to Submit Corroborating Documents

The Third Circuit has determined that an attorney provided ineffective assistance of counsel by failing to present corroborating documentation of the existence of the applicant’s political party. Notably, the attorney had submitted a written denial of the allegations of wrongdoing. The court noted that “we have recognized that a lawyer cannot be expected to argue his own ineffective assistance.”

The court also criticized the Board’s determination that the assassination of the Haitian president was merely an incremental increase in political violence. “It is unclear to us what, exactly, the Board would consider an adequate change in country conditions if the assassination of the country’s leader is simply an ‘incremental increase’ in unrest.”

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

https://www2.ca3.uscourts.gov/opinarch/211729p.pdf

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