Second Circuit Defers to BIA's Definition of Conviction

The Second Circuit has deferred to the BIA’s decision in Matter of Wong addressing what minimal constitutional protections must be accorded to a defendant for the proceeding to result in a conviction for immigration purposes. The court further determined that the “minimum constitutional protections” test espoused in Wong could be applied retroactively. Finally, the court concluded that a second-degree forgery conviction in New York categorically matches the definition of a crime involving moral turpitude. The court rejected the petitioner’s void-for-vagueness challenge to the term “crime involving moral turpitude.”

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

https://ww3.ca2.uscourts.gov/decisions/isysquery/dcca81a9-a8f1-4254-bef7-5aee7c442985/23/doc/22-6185_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/dcca81a9-a8f1-4254-bef7-5aee7c442985/23/hilite/

Tenth Circuit Sua Sponte Considers Exhaustion Requirement

The Tenth Circuit has determined that where a petitioner violated the exhaustion claims processing rule by failing to raise an argument before the agency, it has the authority to consider the failure to exhaust violation, even if the Government does object to the failure to exhaust.

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

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111008946.pdf

Ninth Circuit Rejects Mental Health-Based Asylum Claim

The Ninth Circuit has determined that “Mexicans with mental health disorders characterized by psychotic features who exhibit erratic behavior” is not a cognizable particular social group for asylum purposes.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/03/01/21-1244.pdf

Eighth Circuit Affirms Serious Non-Political Crime Finding

The Eighth Circuit has affirmed a finding that an asylum applicant who transported guns and drugs for MS-13 committed a serious non-political crime.

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

http://media.ca8.uscourts.gov/opndir/24/03/223565P.pdf

Seventh Circuit Defines Timeline for Judicial Review of Reinstatement Orders

The Seventh Circuit has determined that a reinstatement order is final for judicial review at the completion of withholding only proceedings.

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

https://media.ca7.uscourts.gov/cgi-bin/OpinionsWeb/processWebInputExternal.pl?Submit=Display&Path=Y2024/D02-27/C:21-2284:J:St__Eve:aut:T:fnOp:N:3174081:S:0

Fifth Circuit Finds Applicant Ineligible for Adjustment Due to Revoked Parole

The Fifth Circuit has determined that a non-citizen is ineligible for adjustment of status through his U.S.-citizen wife because his parole was revoked by the service of a Notice to Appear. Moreover, he had previously conceded his inadmissibility under § 1182(a)(7)(A)(i)(I), leading the court to conclude he remained .an applicant for admission, ineligible for adjustment of status.

The full text of this incredibly incorrect decision (Membreno-Rodriguez v. Garland) can be found here:
https://www.ca5.uscourts.gov/opinions/pub/23/23-60022-CV0.pdf

The Fifth Circuit Finds that Texas Conviction for Possessing a Synthetic Cannabinoid is Controlled Substance Offense

The Fifth Circuit has determined a respondent did not establish a realistic probability that a Texas conviction for possessing a synthetic cannabinoid criminalizes substances not found in the federal controlled substances schedules. Moreover, the court determined that a non-citizen cannot raise new state law authorities on appeal to meet the realistic probability test because the failure to raise those decisions before the agency renders the arguments unexhausted.

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

https://www.ca5.uscourts.gov/opinions/pub/22/22-60555-CV0.pdf

Ninth Circuit Finds that Arizona Armed Robbery Conviction is Theft-Related Aggravated Felony

The Ninth Circuit has determined that an Arizona conviction for armed robbery is a theft-related aggravated felony. The court concluded that “to establish armed robbery, the state must prove that the defendant, while armed with a real or simulated deadly weapon, (1) took property from a person or his immediate presence (2) against that person’s will (3) using or threatening force with the coexistent intent to take the property.”

The full text of Guzman-Maldonado v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/02/14/23-9.pdf

BIA Finds no Jurisdiction to Review Withdrawn I-751

The Board of Immigration Appeals has determined that an Immigration Judge has no authority to review a withdrawn I-751. In this case, the respondent and his ex-wife filed a joint I-751, but his wife subsequently withdrew it. Although the respondent claimed she was coerced to do so, the Board determined there was no proof of coercion, such as an affidavit from the ex-wife. “Because the respondent has presented insufficient evidence to substantiate this claim, we do not need to decide whether the Immigration Judge had the authority to review his claim that the Form I-751 petition was withdrawn due to coercion.”

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

https://www.justice.gov/d9/2024-02/4072.pdf

BIA Addresses Insufficiency of a PCR Order

The Board of Immigration Appeals has addressed the insufficiency of a state court vacatur order, noting that the order did not specify the statute for vacatur, did not reference the allegations in the motion to vacate, and did not include any factual findings to support the vacatur order. The motion to vacate itself was not accompanied by any evidentiary support, such as sworn affidavits.

“Where a State court order granting a respondent’s motion to vacate a conviction does not indicate the reason for the vacatur, and there is no other basis in the record to independently establish the reason, the respondent has not satisfied his burden to show that the court vacated his conviction because of a substantive or procedural defect in his criminal proceedings. The bare fact that the State court granted the respondent’s motion does not establish the State court’s reason for doing so. Because the respondent has not demonstrated that the convictions underlying his removability were vacated because of a procedural or substantive defect in his criminal proceedings, we will deny his motion to reopen and terminate.”

The Board noted in a footnote that there is a split in authority over whether DHS or the respondent bears the burden of proving the basis of a vacatur in the motion to reopen context for a deported lawful permanent resident.

The full text of Matter of Azrag can be found here: https://www.justice.gov/d9/2024-02/4073.pdf

BIA Finds I-261 to be Inappropriate Remedy for Incomplete NTA

The Board of Immigration Appeals has determined that the Department of Homeland Security cannot remedy a putative Notice to Appear (one missing the date and time of the initial hearing) by filing a Form I-261.

The full text of Matter of Aguilar Hernandez can be found here:

https://www.justice.gov/d9/2024-01/4071.pdf

BIA Finds IJ Should not Have Dismissed Case with Pending I-751 Review

The Board of Immigration Appeals has determined that an Immigration Judge should not grant a motion to dismiss by the Department of Homeland Security when the respondent has the right to review of a denied I-751 application.

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

https://www.justice.gov/d9/2024-02/4072.pdf

Eleventh Circuit Rejects Equal Protection Challenge to Citizenship Claim

The Eleventh Circuit has rejected a litigant’s challenge to a derivative citizenship claim, finding that even under a gender-neutral revision to the statute, he would not be entitled to citizenship.

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

https://media.ca11.uscourts.gov/opinions/pub/files/202210416.op2.pdf

Eighth Circuit Finds Iowa Domestic Abuse Conviction is not Crime of Violence

The Eighth Circuit has determined that an Iowa domestic abuse conviction is not a crime of violence because it criminalizes simple assault.

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

http://media.ca8.uscourts.gov/opndir/24/01/231048P.pdf

Fourth Circuit Finds Mixed Credibility Finding to be Permissible

The Fourth Circuit has determined that an immigration judge may render a mixed credibility determination —deeming an applicant’s testimony credible as to one subject but not another. “In the case of a mixed credibility finding, a presumption of credibility should be applied by the Board on appeal concerning the portion of testimony not explicitly determined incredible.”

The full text of Ayala-Osegueda v. Garland can be found here: https://www.ca4.uscourts.gov/opinions/221707.P.pdf

Fourth Circuit Finds that Adjustment Applicant Must Prove Admissibility by Clear and Convincing Evidence

The Fourth Circuit has affirmed that an applicant for adjustment of status must prove her admissibility by clear and convincing evidence. Nonetheless, in a footnote, the court recognized that the applicant in this case was the mother of a military servicemember and worked in an important profession, and suggested that the Department of Justice may wish to revisit its position in the case. The applicant had presented significant evidence that someone else had likely checked the “US citizen” box on her I-9.

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

https://www.ca4.uscourts.gov/opinions/222114.P.pdf

First Circuit Addresses Family-Based Social Group Claim

The First Circuit has remanded an asylum application, noting that there is was no other basis in the record for the persecution alleged than family ties. “The fact that the cattle thieves were motivated in targeting Pineda-Maldonado in part to protect themselves, because they feared Pineda-Maldonado would retaliate against them, is not disputed by the parties. Butt hat fact does not in and of itself suffice to end the inquiry into whether family status was ‘a central reason’ for their having targeted him, any more than the fact that the cattle thieves sought money in targeting Pineda-Maldonado due to his father's debt could end such an inquiry.”

The full text of Pineda-Maldonado v. Garland can be found here: http://media.ca1.uscourts.gov/pdf.opinions/20-1912P-01A.pdf

BIA Finds that Pre-trial Release does not Preclude Civil Immigration Detention

The Board of Immigration Appeals (Board) has determined that the agency is not estopped from detaining a non-citizen in immigration custody without bond simply because a magistrate released him on pre-trial bail in a federal criminal proceeding. The Board noted that the criminal proceedings, the government bears the burden of proving a defendant is a flight risk or danger to the community to justify detention without bail, while in the immigration context, the non-citizen bears the burden of proving he is not a flight risk or danger to the community to justify the granting of bond.

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

https://www.justice.gov/d9/2024-01/4070.pdf

The Eighth Circuit Finds that Voluntary Manslaughter is a Crime of Violence

The Eighth Circuit has affirmed that a federal conviction for voluntary manslaughter qualifies as a crime of violence because the mens rea of “depraved heart” or “extreme recklessness” is sufficient to establish a use of force against the person of another.

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

http://media.ca8.uscourts.gov/opndir/24/01/223452P.pdf

BIA Affirms Right to Review of Denied I-751

The Board of Immigration Appeals has affirmed the right of a non-citizen to seek review of a denied I-751 petition in removal proceedings, despite any request to dismiss proceedings by the Department of Homeland Security.

The full text of Matter of H.N. Ferreira can be found here:

https://www.justice.gov/d9/2023-12/4069_0.pdf