Sixth Circuit finds that "Honduran Rural Landownership" is Immutable Characteristic, Single Mothers Living Without Male Protection are Socially Distinct,

The Sixth Circuit has issued a decision with a number of favorable findings related to particular social groups in the context of gang persecution in Honduras. First, they found that “Honduran land ownership” is a characteristic so fundamental to the identities of the group members that it is immutable. Second, they found that “single mothers living without male protection” are socially distinct, citing a statement by a deputy commander in the Honduran police that such women are particularly vulnerable within society.

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

https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0094p-06.pdf

Fifth Circuit Finds No Jurisdiction to Review Denial of Motion to Remand in Non-LPR Cancellation Appeal

The Fifth Circuit has determined that it lacks jurisdiction to review the denial of a motion to remand to consider additional hardship evidence in a non-LPR cancellation of removal application.

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

https://www.ca5.uscourts.gov/opinions/pub/22/22-60074-CV0.pdf

Fifth Circuit Finds that 237(a)(1)(H) Waiver does not Reach CIMT Removability

The Fifth Circuit has determined that a 237(a)(1)(H) waiver cannot waive inadmissibility stemming from a crime involving moral turpitude committed prior to adjustment of status nor for deportability related a conviction for visa fraud.

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

https://www.ca5.uscourts.gov/opinions/pub/22/22-60111-CV0.pdf

Third Circuit Construes SIJS Parole Language

The Third Circuit has determined that a Special Immigrant Juvenile is paroled for adjustment purposes only, and is still properly found removable for being present without admission or parole.

The full text of Cortez-Amador v. Attorney General can be found here: https://www2.ca3.uscourts.gov/opinarch/221249p.pdf

First Circuit Construes Former Citizenship Statute

The First Circuit, in construing former section 321(a) of the INA, has assumed that manifesting an intent to reside permanently in the US would be sufficient for derivation of citizenship, but found that a minor who abandoned his adjustment application by failing to appear at an interview without a reasonable explanation did not manifest such intent.

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

http://media.ca1.uscourts.gov/pdf.opinions/22-1496P-01A.pdf

Ninth Circuit Finds no Jurisdiction to Review Denial of U Visa Waiver

The Ninth Circuit has determined that federal courts have no jurisdiction to review the denial of a U visa waiver of inadmissibility. The full text of Mejia Vega v. USCIS can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/04/14/16-56795.pdf

Eighth Circuit Finds that Object of the Conspiracy is an Element of Iowa Conspiracy Statute

The Eighth Circuit has determined that the object crime of a conspiracy is an element of the offense of the Iowa conspiracy statute. Therefore, conspiracy to commit willful injury causing bodily injury is a crime of violence.

The full text of United States v. McConnell can be found here: http://media.ca8.uscourts.gov/opndir/23/04/213759P.pdf

Fifth Circuit Leaves Open Possibility of Jurisdiction to Review Denied Adjustment of Status

The Fifth Circuit has again determined that TPS holders who are subject to a final order of removal, and who travel on advance parole, must reopen their removal proceedings to seek adjustment of status. In so doing, the Court left open the possibility that the Supreme Court’s recent decision in Patel v. Garland might not have stripped federal courts of jurisdiction to review denials of adjustment of status applications outside of removal proceedings.

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

https://www.ca5.uscourts.gov/opinions/pub/22/22-20325-CV0.pdf

Fifth Circuit Determines no EAJA Fees Available for Habeas

The Fifth Circuit has determined that Equal Access to Justice Act fees are not available in habeas actions. The full text of Gomez Barco v. Witte can be found here:

https://www.ca5.uscourts.gov/opinions/pub/21/21-30748-CV0.pdf

First Circuit Finds that Good Faith Marriage Determination is Mixed Question of Fact and Law

The First Circuit has determined that the good faith marriage determination required by an I-751 waiver is a mixed question of fact and law, which the court maintains jurisdiction to review. The court noted the underlying factual findings would not be reviewable.

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

http://media.ca1.uscourts.gov/pdf.opinions/22-1561P-01A.pdf

CA Ct. of Apps. Finds that Court is not Required to Dismiss Charges after Vacatur

The California Court of Appeals, First Appellate Division, has determined that a court is not required to dismiss charges after granting a motion to vacate under section 1473.7 of the California Penal Code.

The full text of People v. Vaca can be found here: http://sos.metnews.com/sos.cgi?0423//A164953

Ninth Circuit Finds that Washington Accomplice Liability Matches Federal Definition

The Ninth Circuit has determined that both Washington and federal generic accomplice liability law require prosecutors to meet the same standard of proof: they must show the accomplice had advance knowledge of the crime he facilitated. In so holding, the court overruled US v. Valdivia-Flores and US v. Franklin and held that second-degree robbery in Washington matches the definition of a theft aggravated felony.

The full text of Alfred v. Garland (including two concurrences and two dissents):

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/03/30/19-72903.pdf

Ninth Circuit Holds that Loss to Victim is Loss Associated with Conspiracy

The Ninth Circuit has determined that the loss to the victim as the result of a fraud-related conspiracy is the loss attributable to the entire conspiracy. That is because “all coconspirators are criminally liable for reasonably foreseeable overt acts committed by others in furtherance of the conspiracy they have joined, whether they were aware of them or not.” The court also determined that a sentencing enhancement based on loss to the victim was sufficient to prove the amount of loss, even in the absence of a restitution order.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/03/30/21-70909.pdf

Fifth Circuit Finds no Jurisdiction to Review USCIS Denial of Adjustment of Status

The Fifth Circuit has determined that it lacks subject matter jurisdiction to review the denial of an adjustment of status application for someone who has not been placed in removal proceedings, on the theory that the person may be able to renew the application at a future date if such proceedings commence.

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

https://www.ca5.uscourts.gov/opinions/pub/22/22-20344-CV0.pdf

Sixth Circuit Finds Restitution Order Insufficient to Demonstrate Loss to Victim

In a very unusual circumstance, the Sixth Circuit has found a restitution order - based on an itemized “loss” list that contained internal inconsistencies, as well charges not covered by the criminal statute - was insufficient to demonstrate a greater than $10,000 loss to the victim.

The full text of Al-Adily v. Garland can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0058p-06.pdf

Fourth Circuit Finds VA Common Law Robbery is not Violent Felony

The Fourth Circuit has determined that a Virginia conviction for common law robbery does not qualify as a violent felony because it does not include an element of the use of violent force. Instead, it can be committed by threatening to accuse the robbery victim of committing sodomy.

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

https://www.ca4.uscourts.gov/opinions/207131.P.pdf

Second Circuit Affirms Agency Interpretation in Castro Tum

The Second Circuit has determined that the agency’s now-defunct holding in Matter of Castro Tum, which held that Immigration Judges and the Board of Immigration Appeals lacked the general authority to administratively close proceedings, was a reasonable interpretation of the regulations, and the subsequent reversal of that interpretation in Matter of Cruz Valdez does not render it unreasonable.

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

https://www.ca2.uscourts.gov/decisions/isysquery/c2c5d174-0010-4129-8eda-dd15dd919752/3/doc/20-1641_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/c2c5d174-0010-4129-8eda-dd15dd919752/3/hilite/

CA Appellate Court Finds Sufficient Error to Vacate Domestic Violence Conviction

The California Court of Appeal, Second District, has determined that a defense attorney who “probably likely” advised a client that if he reduced his felony to a misdemeanor, he could avoid mandatory deportation, provided sufficiently inaccurate advice to damage the client’s ability to meaningfully understand the immigration consequences of his plea.

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

http://sos.metnews.com/sos.cgi?0323//B318353

Shoutout to Doug Jalaie for a great decision!

DC Circuit Precludes Review of Adjustment Appliciations under APA

The Court of Appeals for the District of Columbia Circuit has determined that there is no jurisdiction to review the denial of an adjustment of status application under the Administrative Procedure Act.

The full text of Abuzeid v. Mayorkas can be found here:

https://www.cadc.uscourts.gov/internet/opinions.nsf/5C3B84D12B0D0E5085258975004F819B/$file/21-5003-1990563.pdf

BIA Weighs in on Choice of Law

The Board of Immigration Appeals has determined that the controlling circuit law in Immigration Court proceedings for choice of law purposes is the law governing the geographic location of the Immigration Court where venue lies, namely where jurisdiction vests and proceedings commence upon the filing of a charging document, and will only change if an Immigration Judge subsequently grants a change of venue to another Immigration Court.

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

justice.gov/eoir/page/file/1576116/download