These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
The Third Circuit has determined that a Pennsylvania conviction for retail theft matches the generic definition of a theft aggravated felony. There is an interesting discussion of Pennsylvania’s use of “permissive inferences” in its penal code.
The full text of Baghdad v. Attorney General can be found here:
The Second Circuit has determined that a detainee in Louisiana, whose Notice to Appear was filed with the Jena, Louisiana Immigration Court, should have petitioned for review in the Fifth Circuit, even though the administrative control court (where documents were filed) and the Immigration Judge were in New York.
The full text of Sarr v. Garland can be found here:
U.S.. Citizenship and Immigration Services (USCIS) has announced an extension of Temporary Protected Status (TPS) for Burma for an additional 18 months, from Nov. 26, 2022, through May 25, 2024, due to extraordinary and temporary conditions in Burma that prevent individuals from safely returning. In addition, USCIS announced a redesignation of Burma for TPS for the same reason, allowing Burmese nationals (and individuals having no nationality who last habitually resided in Burma) residing in the United States as of Sept. 25, 2022, to be eligible for TPS.
The announcement can be found here: https://www.uscis.gov/newsroom/news-releases/secretary-mayorkas-extends-and-redesignates-temporary-protected-status-for-burma
The California Court of Appeals has determined that a defense attorney’s failure to advise about mandatory deportation consequences justifies vacatur of the conviction.
The full text of People v. Lopez can be found here:
The Board of Immigration Appeals has limited the circumstances in which a non-citizen may seek a 237(a)(1)(H) waiver to address marriage fraud. Specifically, the waiver cannot be used when the non-citizen is charged with removability for termination of conditional residence when a joint Form I-751 wasn’t filed. In this case, the joint petition was filed, but the U.S.-citizen spouse withdrew her support, and the non-citizen subsequently filed an I-751 waiver based on a good faith marriage, which was denied by USCIS.
The full text of Matter of Bador can be found here:
The Ninth Circuit has rejected the government’s argument that it does not need to provide any factual basis for denying a visa to the spouse of a U.S. citizen on the ground that there is a reason to believe the person is coming to the United States to engage in criminal activity.
“We understand notice to be a key concern of Mandel’s facially legitimate and bona fide reason standard. We thus reject the government’s suggestion that it can comply with Cardenas’s ‘fact in the record’ formulation without providing the operative fact to a petitioner.”
In this case, the court was greatly concerned by the length of time it took the government to provide the “fact in the record.” “In reaching our conclusion in Cardenas, we noted that the consular officer himself ‘provided’ the reason within three weeks of the denial. Similarly, the visa applicant in Din was apprised of the reason for the denial—by reference to a statutory provision containing discrete factual predicates—within about a month of the denial. In this case, the government waited almost three years to provide comparable information to appellants and did so only when prompted by judicial proceedings.” “We thus conclude that, where the adjudication of a noncitizen’s visa application implicates the constitutional rights of a citizen, due process requires that the government provide the citizen with timely and adequate notice of a decision that will deprive the citizen of that interest.” “Our understanding of reasonable timeliness is informed by the 30-day period in which visa denials must be submitted for internal review and the 1-year period in which reconsideration is available upon the submission of additional evidence.”
“Because no ‘fact in the record’ justifying the denial of Asencio-Cordero’s visa was made available to appellants until nearly three years had elapsed after the denial, and until after litigation had begun, we conclude that the government did not meet the notice requirements of due process when it denied Asencio-Cordero’s visa. This failure means that the government is not entitled to invoke consular nonreviewability to shield its visa decision from judicial review. The district court may ‘look behind’ the government’s decision.”
The full text of Munoz v. U.S. Dept of State can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/10/05/21-55365.pdf
The Ninth Circuit has denied the government’s petition for rehearing en banc:
https://cdn.ca9.uscourts.gov/datastore/opinions/2023/07/14/21-55365.pdf
The Ninth Circuit has confirmed that a first-time drug possession offense qualifies for Federal First Offender Act treatment even if the probationary term exceeded one year.
The full text of Lara-Garcia v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/09/26/20-71703.pdf
The Ninth Circuit has assumed that it has jurisdiction to review “a question of law or a mixed question of law and fact presented in a petition for review of an agency decision denying cancellation based on the absence of exceptional and extremely unusual hardship to family members.”
The full text of De La Rosa-Rodriguez v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/09/27/20-71923.pdf
The Ninth Circuit has granted en banc review in this case: https://cdn.ca9.uscourts.gov/datastore/opinions/2023/03/22/20-71923.pdf
The Fifth Circuit has determined that a petitioner who is subject to a reinstated removal order is not eligible for VAWA cancellation of removal. The panel also suggested that there may not be jurisdiction to review the reinstatement order.
“Nasrallah and Johnson may mean that a petitioner who wishes to challenge a reinstatement order in federal court must file within 30 days of the reinstatement order—without waiting for withholding-only proceedings to conclude. That’s what the Second Circuit recently held in Bhaktibhai-Patel v. Garland, 32 F.4th 180, 190–95 (2d Cir. 2022). But even that conclusion relies on the premise that a reinstatement order is a final order of removal under Section 1252. Again, we have held that it is. That conclusion, too, may require reassessment in the wake of Nasrallah and Johnson. One might think that a reinstatement order is not a final order concluding that the alien is deportable or ordering deportation because a reinstatement order presupposes a prior order of removal and because the statute does not authorize a new removal order—it reinstates one from its original date.”
Though the court did not ultimately resolve this issue, but raised it for future litigants to consider.
The full text of Ruiz Perez v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/20/20-61133-CV0.pdf
The First Circuit has found that a former lawful permanent resident, who lost his status when he was deported, was not eligible for 212(c) relief in a subsequent removal proceeding because he was inadmissible under 8 USC 1182(a)(9)(C).
The full text of Reyes-Bautista v. Garland can be found here:
The Ninth Circuit has determined that a non-citizen is entitled to an evidentiary hearing on his ineffective assistance of counsel claim when the only evidence that his attorney provided inaccurate advice was his own affidavit.
With respect to whether the defendant would have rejected the plea had he been properly informed of the consequences, the court noted that that the judge’s advisal about possible removal and the plea agreement’s statement that removal was presumptively mandatory were not determinative on the issue of prejudice. “The record evidence contradicting Rodriguez’s argument is certainly strong. Rodriguez was told by the district court that removal was ‘a possible consequence’ of his plea and the plea agreement informed Rodriguez that his plea would make removal ;presumptively mandatory.’ But possibilities and presumptions are not conclusive, and even the plea agreement stated that ‘no one . . . can predict to a certainty the effect of [Rodriguez’s] conviction on his immigration status.’”
“When the court is faced with a fact-intensive analysis such as assessing whether a defendant would have gone to trial had he known the immigration consequences of his plea, and where the defendant presents some evidence not palpably false which suggests that he would have gone to trial, then it cannot be said that the record is conclusive against the defendant, nor can it be said that the defendant’s claim is ‘so palpably incredible or patently frivolous as to warrant summary dismissal.’ On these facts, it is ‘illogical’—and therefore an abuse of discretion—to deny an evidentiary hearing.”
The full text of US v. Rodriguez can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/09/23/21-15117.pdf
The Ninth Circuit has determined that a Sikh asylum seeker has established past persecution, despite the agency’s finding that he only suffered minor injuries. “Five factors compel the conclusion that Singh indeed experienced serious harm: (1) he was forced to flee his home after being repeatedly assaulted; (2) one of those incidents involved a death threat; (3) he was between the ages of 16 and 18 when the attacks occurred; (4) his brother also experienced this violence; and (5) we have already recognized that Mann Party members have faced persistent threats in the region of India where Singh was twice attacked.”
“Singh had to flee his home after he was the victim of a verbal confrontation and two physical attacks, one of which involved a death threat. Based on our precedents, he suffered serious harm. The BIA disagreed, noting that Singh suffered from only bruises, scratches, and swollen body parts after these altercations. But we do not require severe injuries to meet the serious-harm prong of the past-persecution analysis.”
The full text of Singh v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/09/14/20-72806.pdf
The Third Circuit has determined that the denial of a continuance to a detainee who had recently obtained counsel violated his due process rights. “We are hard pressed to find a more compelling set of facts constituting a violation of Freza’s due process and statutory right to counsel. After Freza diligently sought counsel while incarcerated, he was finally able to obtain counsel the day before his rescheduled merits hearing. However, when that counsel moved for a 30-day continuance so that she could prepare to adequately represent him, the IJ denied the motion, and the BIA affirmed, relying primarily on the fact that Freza’s initial hearing had taken place almost a year before. The IJ and BIA plainly ignored that the delay was due to circumstances completely outside Freza’s control. Indeed, this was Freza’s first request for a continuance of his merits hearing and there was no evidence to indicate that the request was a dilatory tactic by Freza or his counsel. In fact, it was reasonable that counsel would request such a continuance, as she had only met with Freza for the first time less than 24 hours before the merits hearing and she had not had time to review the record. Denying the continuance under these circumstances was clearly an abuse of discretion and a violation of Freza’s due process and statutory right to counsel.”
The full text of Freza v. Attorney General can be found here:
The Third Circuit has determined that the agency erred in denying a continuance to an applicant for cancellation of removal who wished to present additional lay and expert testimony regarding hardship to his children. “Here, the IJ rested his denial of the continuance on an assumption that witness testimony would be unnecessary and then faulted Martinez for perceived gaps in the record that those witnesses likely would have been able to fill. In the circumstances presented, we conclude that Martinez has demonstrated that the IJ’s decision fell outside the range of permissible decisions, as did the BIA’s decision endorsing that decision.”
The full text of Martinez Roman v. Attorney General can be found here:
https://www.ca2.uscourts.gov/decisions/isysquery/12ae7ed4-81e2-4349-a906-0050d41df79e/7/doc/20-3476_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/12ae7ed4-81e2-4349-a906-0050d41df79e/7/hilite/
The Ninth Circuit has determined that the Arizona statutes criminalizing drug possession and possession of drug paraphernalia are divisible with respect to the identity of the controlled substance. The analysis related to the drug possession statute followed the Arizona Supreme Court’s determination that jury unanimity is required with respect to the identity of the substance. But the Arizona Supreme Court declined to address whether such unanimity is required under the paraphernalia statute. Thus, though the Ninth Circuit determined that it is, it also noted that if the Arizona Supreme Court subsequently rules otherwise, the Arizona Supreme Court’s interpretation would govern.
The full text of Romero-Millan v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/08/29/16-73915.pdf
The Ninth Circuit has reversed the denial of a changed country conditions motion to reopen, finding that the new evidence presented was independent of a prior adverse credibility determination. Among other documents, the motion to reopen included Singh’s birth certificate, a letter from the Mann leader attesting to his membership in the party, and a letter from his mother stating that the police were looking for Singh. This evidence was independent of the facts that formed the prior credibility finding. Indeed, the IJ had expressly relied on the lack of such corroborating evidence to find Singh not credible. The prior adverse credibility finding thus logically could not have implicated the newly submitted evidence.
The full text of Singh v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/08/30/19-73107.pdf
The Ninth Circuit has rejected an Interpol Red Notice as sufficient evidence to demonstrate a reason to believe the petitioner had committed a serious nonpolitical crime. The court noted that the notice alleged the petitioner participated in a crime at a time when the Immigration Judge found he was already in the United States, the underlying arrest warrant was not filed by the Department of Homeland Security, and the notice lacked sufficient details about the alleged crime.
The full text of Gonzalez Castillo v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/08/31/21-70112.pdf
The Eighth Circuit has determined that an Iowa conviction for intimidation with a dangerous weapon is not necessarily a crime of violence because the offense of making a threat by itself does not require the use of force or attempted use of force.
The full text of US v. Frazier can be found here:
The Eighth Circuit has determined that although the language of the Iowa statute criminalizing assault on a peace officer contains alternatives which lack a force element, the petitioner had not identified any case where the statute was applied in a way that did not involve at least the threatened use of physical force.
The full text of US v. Hamilton can be found here:
The Seventh Circuit has recognized the defects in a reinstatement order (namely, that it was signed more than 6 months before the petitioner was given an opportunity to respond to it), but denied the petition for review due to a lack of prejudice caused by the deficiencies.
The full text of Casas v. Garland can be found here:
