These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
The Board of Immigration Appeals has determined that Homeland Security can “cure” a defective Notice to Appear (NTA) by moving the Immigration Judge to make written amendments to the NTA by adding the date and time of a future hearing.
The full text of Matter of R-T-P- can be found here:
The Board of Immigration Appeals has determined that attempt crimes can render a non-citizen deportable under section 237(a)(2)(E) of the INA, even though the statute makes no mention of attempted crimes of child abuse.
The full text of Matter of D. Rodriguez can be found here:
The Ninth Circuit has determined that it does not have jurisdiction to review a negative credibility determination made by the agency with respect to the denial of an I-751 waiver. However, the Court found that the good faith marriage determination is a mixed question of fact and law over which it maintained jurisdiction to review. However, because it is a “primarily factual question,” the court’s review is deferential.
The full text of Zia v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/26/21-1325.pdf
The Ninth Circuit has determined the acquired citizenship statute requires a child born out of wedlock to show that his parent was continuously present (without any departure) in the United States for the required period of time before the child’s birth.
The full text of Meza-Carmona v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/26/20-73293.pdf
The Ninth Circuit has affirmed than an Immigration Judge has the authority to consider new evidence when he reviews an asylum officer’s negative reasonable fear determination. However, this authority is discretionary, not mandatory.
The full text of Dominguez Ojeda v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/29/23-835.pdf
The Ninth Circuit has determined that a California conviction for assault with a deadly weapon is not a crime of violence because it includes reckless use of force. In so doing, the Court recognized that the Supreme Court’s decision in Borden states that a crime is not a crime of violence if it encompasses a mens rea in which the defendant acts deliberately, but consciously disregards an unjustifiable—though not practically certain— risk.”
The rationale of the decision should be equally applicable to assault with force likely to produce great bodily injury, assault with a firearm, and assault on a police officer or firefighter.
The full text of US v. Gomez can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/04/23-435.pdf
The Fifth Circuit has affirmed that federal courts have no jurisdiction to review the denial of adjustment of status applications outside of the removal context, precluding judicial review of denials of adjustment of status to arriving aliens. “That Momin has no recourse for what may be a series of mistakes by the government is cruel but legally compelled. As the law stands, 8 U.S.C. § 1252(a)(2)(B)(i) precludes judicial review of denials of applications for adjustment of status and waivers of inadmissibility. This case illustrates some of the pitfalls that follow. In the absence of judicial review to ensure that the government turns square corners, we are left only with the hope that USCIS will give any future application by Momin to reopen his case careful attention.“
The full text of Momin v. Jaddou can be found here: https://www.ca5.uscourts.gov/opinions/pub/23/23-20327-CV0.pdf
The Fourth Circuit has issued a decision analyzing the competing standards for reopening presented by Matter of L-O-G- (reasonable likelihood of success upon reopening) and Matter of Coelho (new evidence would likely change the outcome). The Court concluded that the Coelho standard only applies in cases in which there are special, adverse considerations, while L-O-G- presents a more generally applicable standard for reopening. The L-O-G- standard, for example, is available when the movant is seeking previously unavailable relief.
The full text of Mouns v. Garland can be found here:
The Third Circuit has determined that a non-citizen who was erroneously granted a certificate of citizenship, which was not revoked for 21 years, cannot use the doctrine of equitable estoppel to obtain a declaration of citizenship from a federal court. “It is unfortunate that the government erroneously issued Lall a Certificate of Citizenship in the first place. And it is inexcusable that it quickly discovered its error but failed to correct it for over twenty-one years. Of course, it is Lall’s own subsequent criminal conduct that has brought the consequences of the government’s dereliction down on his head. Still, that dereliction has fundamentally changed Lall’s identity and place in the world. He turns to us for assistance, but we cannot provide the relief he seeks. Not every wrong is ours to right. “
The full text of Lall v. Department of Homeland Security can be found here:
The Ninth Circuit has determined that convictions vacated under California Penal Code section 1473.7 are cognizable for immigration purposes. “We need not dust off our dictionary or delve into the legislative history of § 1473.7(a)(1) to see that the statute provides a vehicle to vacate a conviction to address a substantive or procedural error that renders a conviction ‘legally invalid.’ The plain text does not permit a state court to vacate a conviction to alleviate any immigration consequences arising from the conviction or sentence.”
The court also clarified the due diligence aspect of a motion to reopen based a vacatur. “[T}he proper starting point for measuring diligence in this case is when a reasonable person in Bent’s position would be put on notice of the error underlying his motion to reopen.” The Court then concluded that diligence should be measured from the date of issuance of a Notice to Appear citing the conviction as a basis for removal. “On the one hand, Bent did not pursue vacatur of his conviction for five years after he received the NTA. That may well undermine his ability to demonstrate that he diligently pursued his rights. But on the other hand, there is also good reason to believe that Bent did diligently pursue his rights during this period. After all, due diligence requires a showing of reasonable diligence, not ‘maximum feasible diligence.’ That is, we do not require petitioners to demonstrate ‘an overzealous or extreme pursuit of any and every avenue of relief.’ In assessing a petitioner’s diligence, we ‘consider the petitioner’s overall level of care and caution in light of his or her particular circumstances,’ and we are ‘guided by decisions made in other similar cases . . . with awareness of the fact that specific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case.’
“Here, after Bent’s NTA put him on notice that he was removable, he fervently defended against removal, first before the IJ and then several times before the BIA and this court. He undertook these efforts after spending nearly a decade in prison and while in immigration detention.6 Indeed, the basis for Bent’s vacatur—§ 1473.7(a)(1)—did not come into effect until 2017, long after his unconstitutional conviction.7 But that was not all. In 2022, while his petition for review of his final order of removal was still pending, Bent pursued and obtained his state court vacatur. Approximately one month later, before his merits petition was even fully briefed before us, he also filed his motion to reopen. He was so diligent that his petitions for review on the merits and on the motion to reopen are both presently before us.” The Court also noted that it would “leave it to the BIA10 to determine on remand whether the vacatur of Bent’s conviction on constitutional grounds under § 1473.7(a)(1) demonstrates that he faced extraordinary circumstances for purposes of equitable tolling.”
The full text of Bent v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/15/22-1910.pdf
An amended decision can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/06/22-1910.pdf
The Fifth Circuit has remanded an asylum claim for a Cameroonian nurse, finding that the agency’s analysis of past persecution was insufficient, its analysis of nexus was incorrect, and its lack of corroboration finding was contradicted by the record. “Aben was arrested and detained three times; held in unlawful captivity for a total of six days; slapped, kicked, and knocked in the head; beaten with a belt and a stick; suffered several lacerations, blisters, sores, and bruises; threatened with death while held at gunpoint; and told he would be killed if he did not run fast enough to escape. The BIA’s determination must be vacated because it fails to account for the credible death threats that Aben received.”
“The BIA stated that the actions taken against Aben were not politically motivated but instead were taken due to his occupation as a nurse. However, the BIA failed to address the fact that Aben testified that the military imputed a political opinion to him because military members chastised him for treating ‘separatist fighters,’ and told Aben ‘you [Anglos] think you can fight the government. We will kill you one by one.’ He also testified that as he was being taken from his uncle’s home, he was told, ‘[Y]ou think you can fight us.’ Aben did not claim that the military was targeting him because he was a nurse. Rather he argues that he was perceived to be assisting separatists and later accused of fighting against the government. The BIA does not address this evidence.“
“The BIA and IJ faulted Aben for not documenting his injuries with pictures or medical records. But Aben stated that the Cameroonian authorities seized his cellphone and that he was afraid to use one because of what the authorities would do if they found documentation. He also stated that he avoided hospitals because of fear. Accordingly, the two means of documenting his injuries that the IJ faulted Aben for not using appear unavailable to him based on the record.”
The full text of Aben v. Holder can be found here:
https://www.ca5.uscourts.gov/opinions/pub/20/20-60937-CV0.pdf
The Ninth Circuit has determined that a non-citizen’s right to counsel was violated when an interpreter translated his right to counsel as the right to “hire” an attorney. “Considering these circumstances, Valdivias’s right to counsel was effectively lost in translation by the interpreter’s repeated use of the Spanish word for ‘hire’ in describing that right. This suggested that Valdivias could enjoy the privilege of being represented only if he could pay for an attorney. But as the statutory and regulatory scheme make clear, Valdivias had the right to be represented by a pro bono attorney if he could locate one; and, indeed, he was entitled to a list of lawyers, organizations, and referral services willing to help him obtain pro bono representation.” “Because Valdivias was allowed to proceed pro se without having validly waived his right to counsel, his removal proceedings violated due process.”
The full text of U.S. v. Valdivias-Soto can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/09/20-10415.pdf
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 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
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
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
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
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
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
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:
