These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
The Fifth Circuit has rejected a challenge to the revocation of the approval of an I-140 petition. The Court found that because the agency found the petition was granted in error, it was never valid, the portability rules in section 245(j) of the INA did not prevent the revocation of the approval.
The full text of Nguyen v. Jaddou can be found here:
https://www.ca5.uscourts.gov/opinions/pub/23/23-20597-CV0.pdf
The Board of Immigration Appeals has overruled its decision in Matter of Jurado, which assumed that retail theft in Pennsylvania inherently includes an intent to permanently deprive, finding it inconsistent with the categorical approach outlined by the Supreme Court in Mathis v. United States. The Board then concluded that Pennsylvania retail theft convictions criminalize less than permanent takings, and thus, under pre-Diaz LIzarraga precedent, they do not constitute crimes involving moral turpitude.
The full text of Matter of Thakker can be found here:
The Ninth Circuit has determined that Skidmore deference is the appropriate level of deference to apply to the agency’s determination that a conviction constitutes a crime involving moral turpitude. Under Skidmore, the agency’s decision is entitled to “due respect,” but not binding deference. Applying this standard, the Court determined that the agency’s abolition of the distinction between permanent takings and certain less-than-permanent takings in Matter of Diaz-Lizarraga is entitled to deference. With that definition, the Court agreed that a conviction for theft under the Reno Municipal Code is a crime involving moral turpitude. The Court also deferred to the decision in Matter of Nolan, finding that the non existence of a pardon for a municipal offense does not preclude its classification as a conviction. Finally, with respect to prior interpretations of what crimes involving moral turpitude “arise from a single scheme,” the Court noted that it had deferred under Chevron to Matter of Adetiba in Szonyi v. Whitaker. Although Chevron deference has been abolished, the Court found it was still bound by precedent in Szonyi.
The full text of Lopez v Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/11/23-870.pdf
Two years ago, the Ninth Circuit determined that a court may not issue an in absentia removal order when the Notice to Appear is missing the time and date of the first removal hearing. “We grant Singh’s petition and hold that noncitizens must receive a Notice to Appear in a single document specifying the time and date of the noncitizen’s removal proceedings, otherwise any in absentia removal order directed at the noncitizen is subject to rescission pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii).” The court rejected the Board’s contrary determination in Matter of Laparra.
The full text of Singh v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/04/20-70050.pdf
On remand from the Supreme Court (which rejected the Ninth Circuit’s analysis about the implications of a Notice to Appear missing the first hearing information as it relates to issuance of an in absentia removal order), the Ninth Circuit again remanded this petition for review to the agency, noting the agency failed to consider the totality of the circumstances, including his eligibility for relief, the advancement of his hearing date by the court system, and the role his attorney played.
An updated decision can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/17/20-70050.pdf
The Eighth Circuit has determined that year-long detention of a non-citizen without a bond hearing is permissible so long as the non-citizen’s removal proceedings remain pending on appeal.
The full text of Banyee v. Garland can be found here: https://ecf.ca8.uscourts.gov/opndir/24/09/222252P.pdf
The Sixth Circuit has determined that it lacks jurisdiction to review the agency’s determination that an applicant for adjustment of status had not proven her manner of entry. That said, the Court took the opportunity to criticize the agency for making blatant and obvious errors in its determination.
“Although 8 U.S.C. § 1252(a)(2)(B) forecloses review of the IJ’s decision, we do note that a significant error haunts this case. A visa, issued by a United States embassy or consulate, provides the holder a window of time in which she may travel to the United States and present herself to customs officials for entry into the country. It is not a guarantee of admission but does carry some weight because it bears the imprimatur of a United States government entity in the traveler’s home country. If the visa holder is allowed entry into the United States by customs officials, she is issued an I-94 form, her entry is logged, and her passport stamped. The I-94 sets forth the dates the traveler is allowed to stay in the United States. Thus, the dates on a visa and an I-94 will almost certainly never match. The date range on the visa sets forth the timeframe in which the holder may present herself at the border for admission. The I-94 indicates how long the holder may stay in the country, once admitted.
In his oral decision denying her adjustment of status, the IJ castigated Petitioner for presenting a visa that did not align with the government’s ‘visa.’ He even recommended that the government’s attorneys refer the matter to the Fraud Detection and National Security Directorate (‘FDNS’) for investigation. But this concern rests on a fundamental error: the government never entered a copy of Petitioner’s visa into the record. Instead, we have two government exhibits— the letter USCIS sent to Petitioner requesting that she clarify her manner of entry, and an I-797A form supplying Petitioner a replacement copy of her original I-94. Nothing else. The USCIS letter informs her that their ‘records demonstrate that on January 6, 2000, [she was] issued a visa as a non-immigrant visitor’ indicating she was ‘the domestic employee of Shanti Ray.’ The letter provides no information on the valid dates of the visa. The I-797A form and the attached replacement I-94 show that she entered on a B2 visa and was allowed to stay in the country from March 3, 2000, until September 2, 2000. Notably, however, the form contains no information about her visa beyond the fact that she presented a B2 visa, and even contains the warning that ‘this form is not a visa nor may it be used in place of a visa.’ The visa Petitioner offered shows that it was issued on January 6, 2000, and that she entered the country as the ‘domestic employee of Mrs Shanti Ray.’ Not only does Petitioner’s visa not contradict any government visa, it actually matches the USCIS letter in every respect.
The government, in its answering brief, and the IJ, in his oral decision, both conflate the I-797A and I-94 with a visa. The government cites to the above-mentioned USCIS exhibits for the proposition that ‘Petitioner was issued a tourist visa to the United States on January 6, 2000, that was valid from March 3, 2000 until September 2, 2000.’ This is not an accurate characterization of the evidence. That I-797A form shows the details of Petitioner’s I-94, not her visa. Therefore, the two notations ‘Valid from 03/03/2000 to 09/02/2000’ and ‘VALID FROM 03/03/2000 UNTIL 09/02/2000’ refer to the I-94’s dates she is allowed to stay in the country, not the visa, and the ‘B2’ notation simply marks the type of visa upon which she was admitted.
In summary, the IJ repeatedly expressed concern that Petitioner’s visa exhibit did not match up with the government’s visa exhibit when there was no government visa in evidence. It is more than a little disturbing that such sophisticated parties do not appear to know the difference between an I-94 and a visa, particularly when the forms are so visually different. Ultimately, however, this error was only part of the IJ’s reason for denying relief, and the decision was within his discretion on the grounds of Petitioner’s other falsehoods. We merely flag this error as guidance for future proceedings.”
The full text of Patel v. Garland can be found here: https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0216p-06.pdf
The Fifth Circuit has determined that a Louisiana conviction for accessory after the fact is not an obstruction of justice aggravated felony because the state offense is a general intent crime, while the generic definition of obstruction of justice requires a specific intent to interfere with the process of justice.
The full text of Lopez Orellano v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/23/23-60248-CV0.pdf
The Second Circuit has remanded an asylum claim for a Honduran woman who had been the victim of family violence. “The agency reasonably relied in part on Castellanos-Ventura’s failure to report. But it failed to consider whether it would have been ‘futile or dangerous for an abused child,’ as Castellanos-Ventura was during much of her abuse, ‘to seek protection from the authorities.’”
The full text of Castellanos-Ventura v. Garland can be found here:
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
