These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
The Fifth Circuit has determined that the issuance of a final order of removal does not stop the accrual of physical presence for the purposes of cancellation of removal for nonlawful permanent residents.
The full text of Parada v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/19/19-60425-CV0.pdf
The Third Circuit has determined that an applicant for NACARA cancellation of removal cannot combine the application with a waiver under section 212(h) of the INA. Thus, an applicant convicted of marijuana possession will need to show 10 years of physical presence to qualify for NACARA cancellation.
The full text of Lopez v. Attorney General can be found here:
The California Supreme Court has published a decision addressing the standards for obtaining a Special Immigrant Juvenile Status (SIJS) predicate order.
First, the Court noted that the applicant must prove the applicability of SIJS findings by a preponderance of the evidence.
Second, the Court reiterated that a child’s declaration can be enough to meet that burden. “Superior courts may not ignore or discredit facts shown by a child’s declaration based on surmise or on evidence outside the record or draw speculative inferences against the child.”
Third, the Court laid out factors for consideration in determining whether reunification with a parent is viable. “In making this inquiry, courts should consider all relevant circumstances, including the ongoing psychological and emotional impact on the child of the past relations between the child and the parent, how forced reunification would affect the child’s welfare, the parent’s ability and willingness to protect and care for the child, and the parent’s living conditions.” “The fact that harm to the child is attributable to a parent’s poverty does not preclude a court from determining that reunification with the parent is not viable.”
Fourth, the Court disagreed with the lower courts’ determination that abandonment and neglect for SIJS purposes requires the parent to intend to abandon or neglect the child. “Family Code section 3402, part of California’s version of the Uniform Child Custody Jurisdiction and Enforcement Act, defines ‘abandoned’ as ‘left without provision for reasonable and necessary care or supervision.’ And Welfare and Institutions Code section 300, subdivision (g) provides a laundry list of ways in which a child may be deemed abandoned for the purposes of establishing dependency jurisdiction, among them when a child is ‘left without any provision for support.’ Neither of these definitions requires a showing that the parent intended to abandon the child.”
Fifth, the Court addressed what other factors might amount to a “similar basis” to abuse, neglect, or abandonment for a nonviability determination. Among those factors are a parent’s inability to supervise or protect a child, and whether this inability poses a substantial risk that the child will suffer serious physical harm or illness. “To the extent it is more common for parents in El Salvador to be unable to protect their children from gang violence than it is for parents in California, that is an improper basis for concluding that Saul has failed to show that reunification with his parents is nonviable due to their inability to adequately protect him from ‘a substantial risk’ of ‘serious physical harm.’”
Sixth, the Court addressed the “best interest” determination. “The best interest determination is distinct from the nonviability of reunification determination in that the court’s focus is not on the relationship between the child and the child’s parent. Instead, the best interest determination focuses on the effects of sending children back to live in their home countries. The court’s inquiry involves a case-specific, holistic comparison of the child’s circumstances in California to the circumstances in which the child would live if repatriated, including the capacities of current or potential caregivers — who may or may not be the child’s parents — in each location.” “[A] court should make a holistic comparison between circumstances affecting the child’s health, safety, and welfare in California and in the child’s home country, giving special consideration, where appropriate, to the child’s wishes.”
The full text of Guardianship of Saul H. can be found here:
The Board of Immigration Appeals has determined that a New York conviction for second degree burglary matches the generic definition of a burglary aggravated felony “because the statute requires burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation.”
The full text of Matter of V-A-K- can be found here:
The Eleventh Circuit has determined that a petitioner who was served a defective Notice to Appear (missing the time and place of his first hearing) can still be ordered removed in absentia if he moved after receipt of the NTA and before issuance of a notice of hearing, but did not update the immigration court about his new address.
The full text of Dragomirescu v. Attorney General can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/202013705.pdf
The Eleventh Circuit has determined that Georgia’s malice murder statute qualifies as a crime of violence. “The Georgia malice murder statute states that ‘[a] person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.’ Because we have held that killing in such a manner necessarily entails the use of physical force against the person of another, we conclude that Georgia malice murder . . . is a crime of violence under Section 924(c)’s elements clause.”
The full text of Alvarado-Linares v. US can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/201914994.pdf
The Tenth Circuit has determined that the issuance of a final removal order does not trigger the stop-time rule for cancellation of removal.
The full text of Estrada-Cardona can be found here: https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110725741.pdf
The Ninth Circuit has determined that an applicant for relief bears the burden of proof for proving that a conviction was vacated due to legal defect. The court found the applicant had met his burden of proof when his conviction was withdrawn under Penal Code section 1018. “The grounds for allowing withdrawal of a guilty plea under § 1018 are substantive and procedural defects in the underlying proceeding.”
"The BIA noted that Ballinas-Lucero’s Memorandum ‘asserts that the respondent felt pressured, did not understand his options, did not discuss his case with an attorney, and was not adequately advised of the immigration consequences of his plea.’” “Any reasonable adjudicator reading Ballinas-Lucero’s Memorandum in support of his motion would be required to find that the factual grounds asserted pertained overwhelmingly to substantive and procedural defects in his pleas, as specified in § 1018.”
“Despite the clarity of Ballinas-Lucero’s Memorandum, and of the criteria in § 1018, the BIA found the ‘absence of any statement by the court regarding the reasons for permitting the withdrawal of the respondent’s guilty plea’ to be dispositive. This was error. As the Attorney General stated in In re Thomas, adjudicators applying the ‘Pickering test . . . frequently determine whether a vacatur is valid for immigration purposes by assessing the text of the order of vacatur itself or the alien’s motion requesting the vacatur.’”
The full text of Ballinas-Lucero v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/08/15/17-73260.pdf
The Ninth Circuit has determined that a California conviction for witness intimidation is not an obstruction of justice aggravated felony because it is missing the element of a nexus to an ongoing or pending proceeding or investigation. The court also noted that the statute was broader than the federal witness tampering statute because it lacks the requirement that an individual “uses intimidation, threatens, or corruptly persuades another person,” or “engages in misleading conduct toward another person.”
The court did note that subsections (a) and (c) of Penal Code 136.1 required malice, but subsection (b) (at issue in this case) did not. Nonetheless, the court also analyzed a case interpreting 136.1(a), and determined that the definition of malice “was not the kind of intimidation, threat, corrupt persuasion, or misleading conduct that would give rise to liability under 18 U.S.C. § 1512(b).”
The full text of Cordero-Garcia v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/08/15/19-72779.pdf
The Eighth Circuit has determined that a Nebraska conviction for negligent child abuse is a deportable crime of child abuse because the statute requires a mens rea of at least criminal negligence.
The full text of Al-Masaudi v. Garland can be found here:
The Eighth Circuit has determined that an Iowa conviction for willful injury is a violent felony because it requires the serious injury, which includes disabling mental illness. The court also determined that Illinois armed robbery statute requires a mens rea greater than recklessness.
The full text of US v. Bragg can be found here:
The Eighth Circuit has determined that Iowa’s definition of cocaine in 2013 is overbroad as compared to the federal definition because it included the cocaine analogue Ioflupane, which was excluded from the CSA in 2019. Practitioners will need to verify if the statutes at issue included or excluded the analogue in the time period relevant to their case.
The full text of United States v. Perez can be found here:
The Sixth Circuit has determined that a federal conviction for exporting stolen vehicles qualifies as a receipt of stolen property aggravated felony. The court rejected the petitioner’s argument that the federal mens rea of “willful blindness” was broader than required mens rea prescribed by the agency for receipt of stolen property.
The full text of Tantchev v. Garland can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0195p-06.pdf
The Third Circuit has determined that a Pennsylvania conviction for stalking is overbroad and indivisible when compared to the generic definition of a crime of stalking because it includes conduct intending to cause substantial emotional distress, as well as conduct intended to put the victim in fear of serious bodily harm or death.
The full text of Vurimindi v. Attorny General can be found here:
The First Circuit has remanded a case for the agency to reconsider the impact of a psychological report that diagnosed the petitioner with PTSD and indicated she was suffering from memory impairment. The court indicated the report was critical for the agency to consider in light of the IJ’s adverse credibility determination.
The full text of Rivera-Medrano v. Garland can be found here:
The First Circuit has determined that the reinstatement bar prevents the agency from reopening a reinstated removal order.
The full text of Garcia Sarmiento v. Garland can be found here:
The Board of Immigration Appeals has determined that a Notice to Appear missing the time and place of the first removal hearing presents a mandatory claim-processing rule violation. If a timely objection is brought (namely, before pleadings are taken), an immigration judge may give the Department of Homeland Security the opportunity to cure the defect before dismissing proceedings. If the objection is not timely raised, it is forfeited. The respondent need not show any prejudice resulting from the claim-processing rule violation.
The BIA declined to define how the DHS would remedy the defect. “The precise contours of permissible remedies are not before us at this time. DHS may decide it is best to request dismissal without prejudice and file a new notice to appear.”
The full text of Matter of Fernandes can be found here:
The Eleventh Circuit has deferred to the agency’s definition of a crime of child abuse as including criminally negligent, noninjurious conduct. Thus, a Florida conviction for culpably negligent child neglect is a deportable offense.
The full text of Bastias v. Attorney General can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/202111416.pdf
The Eleventh Circuit has determined that the immigration consequences of a drug offense are established by comparing the state statute of conviction to the federal drug schedules in effect at the time of the conviction, not those in effect at the time of a subsequent adverse immigration decision (such as a denial of naturalization).
The full text of Morfa Diaz v. Mayorkas can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/202110763.pdf
The Ninth Circuit has determined that a lawful permanent resident who seeks reopening of his proceedings more than 90 days after the issuance of a final order of removal based on post-conviction relief must show that he was diligent in seeking that relief, such that the 90-day motion to reopen deadline should be tolled.
The full text of Perez-Camacho v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/08/01/19-72063.pdf
An amended opinion can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/12/02/19-72063.pdf
