Ninth Circuit Finds Incomplete NTA Presents Claim Processing Rule

The Ninth Circuit, sitting en banc, has again determined that a Notice to Appear lacking information about the first removal hearing does not deprive the immigration court of jurisdiction. However, the court also recognized that the failure to meet the regulatory requirement to include this information in the regulations is a claim processing rule violation. “The only sensible way to read 8 C.F.R. § 1003.14(a), then, is as a docketing rule whose function extends no further than providing for the orderly administration of proceedings, including deportation proceedings, before the immigration judges.”

Notably, the court did not discuss when an objection to a violation of a claim processing rule would be timely, or what the proper remedy for such a violation would be.

The full text of US v. Bastide-Hernandez can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/07/11/19-30006.pdf

Fifth Circuit Refuses to Reopen Proceedings for Petitioner who Failed to Provide an Address

The Fifth Circuit has again refused to reopen proceedings for a petitioner who failed to give a proper address, even though the Notice to Appear was missing information about the first hearing. “And this court has held that an alien has not provided a “viable mailing address” when he fails to provide any address, neglects to update an old address, or fails to correct an erroneous address.”

The full text of Gudiel-Villatoro v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/20/20-61050-CV0.pdf

SCOTUS Permits Termination of MPP

The Supreme Court has determined that the federal government has the authority to terminate the Migrant Protection Protocols, finding that “the contiguous-territory return authority in section 1225(b)(2)(C) is discretionary.”

The full text of Biden v. Texas can be found here:

https://www.supremecourt.gov/opinions/21pdf/21-954_7l48.pdf

BIA Addresses Use of Impeachment Evidence

The Board of Immigration Appeals has approved of the use of impeachment evidence in a removal proceeding, finding “an Immigration Judge may rely on impeachment evidence as part of a credibility determination where the evidence is probative and its admission is not fundamentally unfair, and the witness is given an opportunity to respond to that evidence during the proceedings.”

The full text of Matter of E-F-N- can be found here:

https://www.justice.gov/eoir/page/file/1516746/download

BIA Finds Claims Processing Rule Objection Forfeited When Raised for the First Time in Motion to Reopen

The Board of Immigration Appeals has determined that a respondent who first raises an objection related to an incomplete Notice to Appear in a motion to reopen has forfeited the objection because it was untimely.

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

https://www.justice.gov/eoir/page/file/1515001/download

Ninth Circuit Casts Doubt on Judicial Administrative Closure as a Form of Prosecutorial Discretion

A panel of the Ninth Circuit has refused to approve a joint motion to administratively close an appeal on its docket for petitioners that the Department of Homeland Security has deemed to not be an enforcement priority. In so doing, the Court placed the burden on the government to exercise its prosecutorial discretion to remand a case to the agency, and seek dismissal or administrative closure at that level.

“The burden is on the Government to use one of the many tools it has for not enforcing immigration law in a particular case if that is its policy preference. Shelving a case indefinitely on our docket to avoid having a final decision rendered in a case properly presented to us is not one of those tools. Indeed, this case demonstrates the absurdity of what the parties are asking. Sarkar filed his petition in August 2017. A stay of removal was entered a few months later, and the case has been fully briefed since August 2018. Given our significant backlog of immigration cases, this case was not moved toward resolution until over three years later in October 2021 when we asked the parties whether they still wanted to proceed to decision or whether they anticipated an alternative resolution. Both parties responded that they wanted to proceed. The court then scheduled the case for oral argument and we began our preparations only to have the parties request a few weeks later that the case be administratively stayed because it is not an enforcement priority. This is not a good use of judicial resources. The executive branch should sort out its enforcement priorities, about which we express no opinion, without burdening the already-strapped judiciary.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/07/01/17-72212.pdf

Ninth Circuit Emphasizes CAT Standard is an Aggregate Calculation

The Ninth Circuit has again emphasized that the agency must calculate the likelihood of future torture for Convention Against Torture purposes in the aggregate. As such, when a petitioner posits multiple potential sources of torture, “the relevant inquiry is whether the total probability that the applicant will be tortured—considering all potential sources of and reasons for torture—exceeds 50 percent.”

“The BIA considered his two separate theories of torture as a single hypothetical chain of events and denied his CAT claim because the probability of that hypothetical chain occurring was not high enough. But the BIA should not have considered his claim as a single hypothetical chain of events, when—as the BIA itself acknowledged—he posited two ‘alternative’ and distinct theories for why he would be tortured if he were removed to El Salvador. By requiring Velasquez-Samayoa to show that every step in two hypothetical chains was more likely than not to occur, the BIA increased his CAT burden. Velasquez-Samayoa was not required to show that he was more likely than not to be tortured under both theories, nor was he required to show that he was more likely than not to be tortured under any single theory considered individually. The law requires him to show only that taking into account all possible sources of torture, he is more likely than not to be tortured. Thus, the BIA should have assessed whether aggregating the risks posed by Velasquez-Samayoa’s two theories results in a probability greater than 50 percent that he will be tortured.”

The Court also found error in the agency’s treatment of expert testimony. “The BIA affirmed the IJ’s decision that Dr. Boerman was a credible witness. Yet the BIA proceeded to reject key pieces of Dr. Boerman’s testimony regarding why Velasquez Samayoa faced a high risk of torture, agreeing with the IJ that the country conditions evidence did not corroborate the expert’s testimony that Velasquez-Samayoa will be perceived as a gang leader based on his age and other characteristics. The mere fact that Dr. Boerman’s testimony is not corroborated by country conditions evidence is not a valid reason for rejecting that testimony— expert testimony can itself provide evidence of country conditions.”

The full text of Velasquez-Samayoa v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/24/21-70093.pdf

An amended opinion can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/09/23/21-70093.pdf

Ninth Circuit Finds that Prior NACARA Cancellation Grant Precludes LPR Cancellation Eligibility

The Ninth Circuit has concluded that a prior grant of NACARA cancellation of removal by the Asylum Office precludes a petitioner from seeking cancellation of removal for lawful permanent residents in removal proceedings.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/27/20-70158.pdf

Ninth Circuit Finds TPS is Not Admission for LPR Cancellation of Removal

The Ninth Circuit has found that an individual who acquires Temporary Protected Status is not “admitted in any status” for the purposes of cancellation of removal for lawful permanent residents.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/28/21-70493.pdf

Seventh Circuit Remands to Determine Citizenship of Ethnic Eritrean Born in Addis Ababa

The Seventh Circuit has remanded a motion to reopen for the agency to address whether an ethnic Eritrean born in Addis Ababa before the founding of Eritrea is properly considered to be an Eritrean citizen. The Court noted that the petitioner’s citizenship was relevant to the likelihood that he would be tortured if deported to Ethiopia.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2022/D06-21/C:21-2099:J:Wood:aut:T:fnOp:N:2892707:S:0

Fifth Circuit Finds that Motion to Reopen Based on Changed Country Conditions is Number Barred

The Fifth Circuit has determined that a motion to reopen based on changed country conditions - although an exception to the 90-day filing deadline for motions to reopen - is subject the numerical limitations on motions to reopen. Although the Court recognized that a regulation exempts changed country conditions motions to reopen from the numerical bar, they found the regulation to exceed the terms of the statute, and thus, be invalid. The Court further suggested that only VAWA-based motions to reopen can be exempted from the numerical limitation.

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

https://www.ca5.uscourts.gov/opinions/pub/20/20-60448-CV0.pdf

Fourth Circuit has Determined that PFR Can be Filed in Circuit Where IJ Sits Regardless of Where Noncitizen is Detained

The Fourth Circuit has determined that venue is proper in that circuit for a petition for review of a removal order when the presiding Immigration Judge was sitting at an adjudications center in Virginia, even though the non-citizen was detained in Louisiana, and the immigration court with administrative control was in Minnesota.

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

https://www.ca4.uscourts.gov/opinions/201770.P.pdf

Third Circuit Addresses Jurisdiction over Challenge to Administrative Removal Order

The Third Circuit has determined that DHS does not provide an individual subject to a Final Administrative Removal Order with the opportunity to contest the legal determination that a cited conviction is an aggravated felony. As such, the federal appeals court has jurisdiction to consider that challenge even if it wasn’t raised to the agency below. In addition, the Court determined that a Pennsylvania conviction for receipt of stolen property is a categorical match to the definition of a theft-related aggravated felony.

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

https://www2.ca3.uscourts.gov/opinarch/202439p.pdf

Second Circuit Finds Dual National Need Only Establish Persecution from One Country to Qualify as Refugee

The Second Circuit has determined that a dual national need only establish a well-founded fear of persecution in one of her countries of nationality in order to qualify as a refugee. The court did not that a second nationality would be relevant to the firm resettlement bar and discretion, and therefore, a dual national refugee might still not be granted asylum.

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

https://www.ca2.uscourts.gov/decisions/isysquery/985524eb-c9c6-4dc3-a65e-c4624d3f8ecb/2/doc/19-145_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/985524eb-c9c6-4dc3-a65e-c4624d3f8ecb/2/hilite/

CA Appellate Court Grants Vacatur for Defendant Advised Only of Possibility of Immigration Consequences

The California Court of Appeals, Third Appellate District, has sustained the appeal of a defendant who was only warned of the mere possibility of immigration consequences, and who had lived in the United States with his family for decades prior to his plea.

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

http://sos.metnews.com/sos.cgi?0622//C092015

CA Appellate Court Rejects Motion to Vacate for Defendant who Admitted He Knew he Would be Deported

The California Court of Appeal, Second Appellate Division, has denied a motion to vacate for a defendant who admitted he knew he would be deported when he took his plea and who initially stated his attorney didn’t ask him about his immigration status but later admitted that he did.

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

http://sos.metnews.com/sos.cgi?0622//B310824

SCOTUS Finds No Statutory Requirement for Prolonged Detention Bond Hearings for Non-Citizens Subject to Reinstatement

The Supreme Court has determined that there is no statutory requirement to provide a bond hearing to an individual subject to a reinstated order of removal. The Court left open the possibility that such hearings might be required by the Constitution.

The full text of Johnson v. Arteaga-Martinez can be found here:

https://www.supremecourt.gov/opinions/21pdf/19-896_2135.pdf

SCOTUS Prohibits Classwide Injunctions of Mandatory Detention Provisions

The Supreme Court has determined that 8 USC 1252(f)(1) prohibits the issuance of classwide injunctions by federal courts (other than the Supreme Court) that enjoin certain provisions of the INA, including the mandatory detention provisions.

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

https://www.supremecourt.gov/opinions/21pdf/20-322_m6hn.pdf

BIA Finds that FL Deferred Adjudication Constitutes "Conviction by Final Judgment"

The Board of Immigration Appeals has determined that a Florida deferred adjudication - which involved a defendant who pled nolo contendere and received a probationary sentence - not only qualifies as a conviction for immigration purposes, but also qualifies as a “conviction by final judgment” for particularly serious crime purposes.

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

https://www.justice.gov/eoir/page/file/1512791/download

Seventh Circuit Finds Indiana Definition of Methamphetamine Broader than Federal Definition

The Seventh Circuit has determined that Indiana’s definition of methamphetamine is broader than the federal definition. “Under federal law, methamphetamine is a Schedule II or III controlled substance that includes ‘its salts, isomers, and salt of isomers.’ Under federal law, ‘isomer’ of methamphetamine only refers to ‘the optical isomer.’” “Because the Indiana legislature chose to limit the types of isomers defining other drugs but did not do so with methamphetamine, we must read the schedules to define methamphetamine as including at least optical and positional isomers.” The court noted that as of 2020, Indiana had narrowed the definition of an isomer of methamphetamine to optical isomers only. However, that definition was not present at the time of the petitioner’s conviction.

The full text of Aguirre-Zuniga v. Garland can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2022/D06-16/C:21-1201:J:Jackson-Akiwumi:aut:T:fnOp:N:2891535:S:0