Ninth Circuit Construes Jurisdictional Provisions Regarding Adjustment of Status Applications

The Ninth Circuit 8 USC § 1252(a)(2)(B) does not strip courts of jurisdiction over review of USCIS policies and procedures (as opposed to adjudication of individual applications for adjustment of status). The Court further determined that claims challenging such policies brought by plaintiffs who had not yet filed for adjustment of status were not yet ripe. Finally, the Court rejected the plaintiffs’ contention that 8 USC § 1252(a)(2)(B) did not bar review of adjustment of status applications filed outside of the immigration court system.

“We recognize that individuals like P. Peddada—who have not violated any immigration laws—must violate the law to render themselves removable and obtain judicial review.”

The full text of Nakka v. USCIS can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/06/22-35203.pdf

Ninth Circuit Finds that Death Threats and Physical Harm in Tandem Rise to Past Persecution

The Ninth Circuit has determined that an asylum applicant who suffered contemporaneous physical harm and death threats experienced past persecution.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/02/23-308.pdf

An order depublishing this case can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/02/23-308.pdf

Ninth Circuit Holds that Abuse in US not Relevant to CAT Analysis

The Ninth Circuit has determined that the agency is not required to consider child abuse that took place in the United States when considering whether a deported parent is likely to torture their child in their country of origin.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/30/21-1228.pdf

Ninth Circuit Reverses Habeas Grant to Immigration Detainee

The Ninth Circuit has reversed a habeas grant to a detainee in immigration custody because the detainee failed to name his immediate custodian, the warden of the facility where he was detained, as the respondent to his petition. The detainee had named the ICE Field Office Director, rather than the warden at Golden State Annex, as the respondent. In addition, because the Golden State Annex is physically located in the Eastern District of California, that was the proper district for filing habeas, not the Northern District, where the ICE Field Office is located.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/29/23-15361.pdf

Sixth Circuit Remands an Asylum Claim based on Domestic Violence

The Sixth Circuit has remanded a domestic violence and family-based asylum claim, noting the change in law governing these claims. “[T]o summarize, our decision to remand Marta’s application directly responds to: (1) the IJ’s near-exclusive reliance on A-B-I to broadly proclaim that victims of domestic violence do not qualify for asylum protection, and to ignore her factfinding obligations thereto; (2) the subsequent change in immigration authority that directs the agency to afford careful, case-by-case adjudication to asylum claims relating to domestic violence; (3) the Board’s disregard of immigration authority and Sixth Circuit precedent requiring the remand of pending applications in light of the glaring change in immigration authority here; and (4) the Board’s misapplication of the circularity rule in Marta’s case.”

The full text of Tista-Ruiz de Ajualip, et al. v. Garland can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0170p-06.pdf

Fourth Circuit Finds no Jurisdiction to Review District Court Remand Order

The Fourth Circuit has determined that it has no jurisdiction to review an order from the District Court remanding a delayed naturalization application to the agency. “Simply stating the standard may be enough to explain why it is not met here. The district court’s remand order did not ‘end the litigation on the merits’ of Dubon’s naturalization petition. It did the opposite: It declined to address the merits at all, and instead provided for further adjudication of the merits before the agency. When the district court issued its order, in other words, a determination on the crucial issue in this litigation – Dubon’s eligibility to naturalize – was yet to come. And because that question remained ‘open’ and ‘unfinished,’ the district court’s § 1447(b) remand was not a ‘final decision’ as that term generally is defined under § 1291.”

The full text of Dubon v. Jaddou can be found here: https://www.ca4.uscourts.gov/opinions/222280.P.pdf

Fourth Circuit Remands Cancellation of Removal Application

The Fourth Circuit has reviewed the agency’s hardship determination in a cancellation of removal application and remanded the proceedings because it was not clear that the Immigration Judge had considered a treating therapist’s predication that removal of the applicant would increase the likelihood that her daughter would engage in self harm.

The full text of Garcia Cortes v. Garland can be found here: https://www.ca4.uscourts.gov/opinions/221930.p.pdf

Fourth Circuit Rejects Asylum Claim of Mentally Ill Asylum Applicant

The Fourth Circuit has determined that the forcible institutionalization of a mentally ill man does not compel the granting of asylum when the man’s mental illness caused him to behave in a disruptive and violent manner.

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

https://www.ca4.uscourts.gov/opinions/231236.P.pdf

Memorandum on the Deferred Enforced Departure for Certain Lebanese Nationals

The President has issued a memo authorizing deferred enforced departure for certain Lebanese nationals.

The memo can be found here: https://www.whitehouse.gov/briefing-room/presidential-actions/2024/07/26/memorandum-on-the-deferred-enforced-departure-for-certain-lebanese-nationals/

USCIS Extends and Redesignates Somalia for TPS

United States Citizenship and Immigration Services announced the extension and redesignation of Somalia for Temporary Protected Status for 18 months, from September 18, 2024, to March 17, 2026, due to conditions in Somalia that prevent individuals from safely returning.

The extension of the TPS designation for Somalia allows approximately 600 current beneficiaries to retain TPS through March 17, 2026, if they continue to meet TPS eligibility requirements. Current TPS beneficiaries who wish to extend their status through March 17, 2026, must re-register during the 60-day re-registration period from July 22, 2024, through September 20, 2024, to ensure they keep their TPS and employment authorization.

The redesignation of Somalia for TPS allows an estimated 4,300 additional Somali nationals (or individuals having no nationality who last habitually resided in Somalia) to file initial applications to obtain TPS, if they are otherwise eligible. They must have established residence in the United States on or before July 12, 2024, and have continued to reside in the United States since then.

The full announcement can be found here: https://www.dhs.gov/news/2024/07/19/secretary-mayorkas-announces-extension-and-redesignation-somalia-temporary

Ninth Circuit Determines it has Authority to Ascertain Date of Change in Foreign Law

The Ninth Circuit has determined that it has the authority to determine the date of change in foreign law, even when the administrative record is unclear about this information. In this case, because the Department of Homeland Security misstated the date of the change in foreign law during its cross-examination, the Court determined that the improper cross-examination may have had a substantial prejudicial effect on the agency’s assessment of the applicant’s credibility. “While the INA thus places strict limits on our ability to consider additional ‘evidence’ that is not contained in the agency record, it does not similarly restrict our ability to conduct independent legal research concerning any question of law that properly arises in our consideration of a petition for review of a removal order.” “And, here, the issue of the effective date of the relevant Chinese law’s repeal is a readily resolvable question of law, not a question of fact.” The Court further concluded that in interpreting foreign law, it may consult “any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/24/16-71315.pdf

Fourth Circuit finds that VA Solicitation of Prostitution Conviction is CIMT

The Fourth Circuit has affirmed that a Virginia conviction for solicitation of prostitution is a crime involving moral turpitude. The Court rejected the argument that societal attitudes toward prostitution had sufficiently changed such that solicitation of prostitution was no longer base conduct.

The full text of Ortega-Cordova v. Garland can be found here: https://www.ca4.uscourts.gov/opinions/221700.P.pdf

Third Circuit Transfers PFR to Sixth Circuit

The Third Circuit has determined that the Sixth Circuit is the proper appellate venue for a detained matter filed with the Cleveland Immigration Court, even though the immigration judge was sitting in Virginia, and the applicant was detained in Pennsylvania. “Therefore, in the context of remote proceedings or hearings, the physical locations of the IJ and other participants are not what dictates the answer to the question of where the proceedings occur. Instead, we agree with the First, Second, Seventh, and Ninth Circuits that ‘proceedings’ take place in the Immigration Court in which the proceedings began, unless there is a formal change of venue. Judicial venue under § 1252(b)(2) thus aligns with administrative venue.” The court, accordingly, transferred the petition for review to the Sixth Circuit,

the full text of Castillo v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/232123p.pdf

Second Circuit Finds that Death Threats are not Per Se Past Persecution

The Second Circuit has determined that death threats are no per se past persecution, noting that they will rise to the level of persecution only if the applicant can point to aggravating circumstances indicating that the death threat was “so imminent or concrete” or “so menacing as itself to cause actual suffering or harm.”

The full text of KC v. Garland can be found here: https://ww3.ca2.uscourts.gov/decisions/isysquery/ffede890-ad84-46c5-93e1-549ef45053a5/9/doc/20-3043_opn.pdf

Secretary Mayorkas Announces Extension and Redesignation of Yemen for Temporary Protected Status

Secretary of Homeland Security Alejandro N. Mayorkas announced the extension and redesignation of Yemen for Temporary Protected Status for 18 months, from September 4, 2024, to March 3, 2026, due to country conditions in Yemen that prevent individuals from safely returning. The redesignation of Yemen for TPS allows an estimated 1,700 Yemeni nationals (and individuals having no nationality who last habitually resided in Yemen) who have been continuously residing in the United States since July 2, 2024 to file initial applications for TPS, if they are otherwise eligible.

The full text of the announcement can be found here: https://www.dhs.gov/news/2024/07/08/secretary-mayorkas-announces-extension-and-redesignation-yemen-temporary-protected

Ninth Circuit finds that CA Carjacking Conviction is not Crime of Violence

The Ninth Circuit has determined that has a California conviction for carjacking is not a crime of violence aggravated felony. “On a plain reading, section 215 defines carjacking more broadly than section 16(a) by not requiring the use of force.” The court further concluded that the use of fear required by the statute does not necessarily include the use of force. The court additionally concluded that the statute requires only a reckless mens rea, which is less than is necessary to match the definition of a crime of violence. “In sum, section 215 criminalizes carjacking committed through fear and without the use of force, as well as carjacking committed through the unintentional use of force.” The court further determined the statute is not divisible.

The full of Gutierrez v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/02/21-130.pdf

Fourth Circuit Finds that Inadmissible and Deportable LPR was Eligible for Naturalization

The Fourth Circuit has determined that a lawful permanent resident who became inadmissible and deportable by virtue of a conviction entered after he obtained his residency is stil eligible to naturalize. The court examined the regulation at 8 CFR § 316.2(b), focusing ont he requirement that a permanent resident be lawfully admitted to the United States during any subsequent reentry.  The Court concluded that simply because the applicant was inadmissible due to his conviction at the time of his last entry to the United States, that did not change that he was lawfully admitted as a permanent resident when he reentered the United States, as it was undisputed that he continued to enjoy his permanent resident status at the time of his reentry.  

The full text of Azumah v. USCIS can be found here: https://www.ca4.uscourts.gov/opinions/222175.P.pdf

Eighth Circuit Address Lawfulness of Temporary BIA Member and Religious-Based Asylum Claim

The Eighth Circuit has determined that the terms of temporary members of the Board of Immigration Appeals (Board) can be renewed. The court also remanded a religion-based asylum claim, remanding for the Board to consider whether statements and actions by gang members demonstrated that the applicant’s evangelizing was one central reason for the harm he suffered.

The full text of Rivera v. Garland can be found here: https://media.ca8.uscourts.gov/opndir/24/07/232351P.pdf

Fifth Circuit finds no Jurisdiction over APA Delay Challenge Involving Pending Adjustment

The Fifth Circuit has determined that it lacks subject matter jurisdiction over a claim under the Administrative Procedure Act that an adjustment of status application has been unreasonably delayed.

The full text of Cheejati v. Blinken can be found here: https://www.ca5.uscourts.gov/opinions/pub/23/23-40398-CV1.pdf

Third Circuit Finds that Confinement as a Result of Conviction Includes Pre-Conviction Confinement

The Third Circuit has determined that the phrase “confined as a result of conviction,” as it is found in the list of good moral character bars, includes time spent in pre-conviction confinement.

The full text of Aguilar v. Attorney General can be found here:  https://www2.ca3.uscourts.gov/opinarch/183320p.pdf