These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
The Fifth Circuit has determined that a non-citizen’s declaration alone is not sufficient to compel the agency to reopen a removal order based on lack of receipt of the notice of hearing.
The full text of Luna v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/21/21-60195-CV0.pdf
The Fifth Circuit has affirmed the agency’s hardship finding in a cancellation of removal case, finding that even if it accorded that determination no deference, the applicant had not established that his U.S.-citizen son would suffer exceptional and extremely unusual hardship without him.
The full text of Cuenca-Arroyo v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/23/23-60100.CV0.pdf
The Fourth Circuit has confirmed that the Attorney General has an independent statutory authority to appoint (and renew the appointment of) temporary members of the Board of Immigration Appeals. This authority is not affected by the regulation prescribing the authority of the Director of the Executive Office for Immigration Review to appoint temporary Board members. Finally, the Fourth Circuit construed that regulation as permitting renewable appointments by the Director.
The full text of Salomon-Guillen v. Garland can be found here: https://www.ca4.uscourts.gov/opinions/231723.P.pdf
The Supreme Court has determined that federal courts lack jurisdiction to review the agency’s revocation of an approved visa petition. In so doing, the Court indicated that the revocation statute defines a purely discretion decision by the agency - that the agency is not obligated to revoke the approval of a petition that was approved in error.
The full text of Bouarfa v. Mayorkas can be found here:
The Board of Immigration Appeals has determined that for the purpose of assessing whether an offense constitutes a money laundering aggravated felony, the circumstance-specific appproach applies to the requirement that the “amount of the funds exceeded $10,000.”
The full text of Matter of Dominguez Reyes can be found here:
The Eighth Circuit has determined that Minnesota’s crime of third-degree criminal sexual conduct does not match the generic definition of rape because the Minnesota crime includes digital or mechanical penetration, which are outside the generic definition of rape.
The full text of Quito-Guachichulca v. Garland can be found here:
The Appellate Division of the Superior Court has determined that defendants who take advantage of the Sentence Deferral Program cannot later seek relief under Penal Code section 1473.7.
“The threshold question in deciding the propriety of the trial court’s ruling is whether defendant had a conviction or sentence when he made his motion. Defendant was never sentenced so we turn to whether he sustained a conviction within the meaning of section 1473.7, subdivision (a). Under well-settled law, defendant sustained a conviction when the trial court accepted and entered his plea of no contest.3 Nonetheless, section 1473.7 relief was inapplicable because, at the time the motion was litigated, defendant’s plea (or “conviction”) no longer existed. In other words, there was no conviction to ‘vacate.’”
“While the surviving ramifications for the defendant who secures a section 1203.4 dismissal are indicative of a conviction, the same cannot be said for a dismissal under the Sentence Deferral Program. The only exception to complete nullification of the defendant’s criminal proceeding upon dismissal pursuant to the Sentence Deferral Program is (a) the Department of Justice may disclose the arrest ‘in response to a peace officer application request’ and (b) successful completion of the Sentence Deferral Program ‘does not relieve [the defendant] of the obligation to disclose the arrest in response to a direct question contained in a questionnaire of application for a position as a peace officer . . . .’ In other words, the target of potential adverse consequences is strictly limited to a narrow class of defendants who seek employment as a peace officer. For all intents and purposes, the dismissal of a case pursuant to section 1001.96 renders the conviction a complete nullity. A prerequisite for section 1473.7 relief is the existence of a conviction or sentence. Defendant had neither at the time he litigated his motion; because he successfully completed section 1001.94 diversion, his plea was withdrawn, his case was dismissed, and there was no conviction to vacate. Defendant was not eligible for section 1473.7 relief.”
The full text of People v. Kuzmichey can be found here:
The Board of Immigration Appeals has determined that its requirement that a respondent object to an incomplete Notice to Appear before the close of pleadings is not a new rule, and as such, the decision in Matter of Fernandes applies retroactively.
The full text of Matter of Larios-Gutierrez de Pablo and Matter Pablo-Larios can be found here:
The Ninth Circuit has addressed the asylum claim of a Salvadoran pastor who refused to try to influence his congregation to vote for the FMLN party. “The record also compels us to conclude that Aleman satisfies the second element: the FMLN attacked Aleman because of his political-opinion-based refusal to use his role in the church to influence El Salvadoran politics.”
“The IJ’s determination that the attack on Aleman was not inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity because the FMLN had lost in local elections five days before the attack is not supported by substantial evidence. The IJ recognized that the torture Aleman suffered was at the hands of FMLN agents. Aleman was attacked five days after the FMLN lost the local election and was asked at gunpoint why he had not accepted the FMLN’s proposal. He asserts that the FMLN still controlled local government in Lourdes Colon immediately after the elections that displaced them, and supports this assertion with unrebutted testimony. In short, the IJ’s finding that no public official was involved in the torture because the FMLN had lost in the local election five days prior lacks support and is contradicted by the record.
The full text of Aleman-Belloso v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/11/13/23-114.pdf
The Second Circuit has addressed the required findings that an Immigration Judge must make when adjudicating an application filed by a mentally incompetent individual.
“[W]e hold that to protect the rights and privileges of noncitizens who may be incompetent, an IJ must: (1) make a finding as to whether the noncitizen is incompetent; and, if so, (2) generate a record of sufficient findings regarding the character, scope, and severity of the noncitizen’s incompetency; (3) implement safeguards that address the character, scope, and severity of the noncitizen’s incompetency; and (4) articulate how and why the safeguards adequately and appropriately protect the noncitizen’s rights and privileges under the INA and the Due Process Clause. These findings are interdependent and obligatory, and a reviewing court cannot affirm the ultimate adequacy and appropriateness of safeguards to protect the noncitizen’s rights and privileges in the absence of sufficient findings at each step of the Matter of M-A-M- framework. We note that in cases of plausibly remediable incompetency, the range of safeguards IJs may consider includes halting the proceedings via administrative closure or termination without prejudice as to the government’s right to reopen.”
“It is troubling and hard to understand why other measures that could have helped ameliorate the ways Reid’s limitations disadvantaged him during the hearing were not discussed or implemented. For example, it appears that if Reid is indeed incompetent, his psychologist Dr. Cort and his social worker Alexis Donovan both alluded to the possibility of his continued treatment allowing him to recover some measure of competency and participate more fully in his deportation hearing. If that is true, a continuance or administrative closure to await his possible restoration to or improvement of competence might be a desirable safeguard. It is also possible that other safeguards would enable Reid’s counsel to more definitively establish the number of days he was imprisoned. We do not know, however, what would be appropriate without a record of sufficient findings on whether Reid is incompetent and if so, what safeguards would address his limitations.”
The full text of Reid v. Garland can be found here:
The California Court of Appeals, Sixth District, has determined that Penal Code section 1473.7 does not mandate dismissal of the reinstated charges after vacatur of a plea. “Martinez’s construction of the statute, which relies almost entirely on his parsing of its legislative history, would require us to add language that does not exist, namely that a court, after granting a motion to vacate a conviction under section 1473.7, is further required to dismiss the charges underlying that (now-vacated) conviction.” In addition, a prior dismissal of the charges under Penal Code section 1203.4 does not prohibit the prosecutor from refiling the original charges after vacatur. Similarly, a pre-vacatur reduction of the charges from felonies to misdemeanors under Penal Code section 17(b) does not prevent the prosecutor from re-instating felony charges after vacatur. Finally, the court determined that double jeopardy does not prevent the re-filing of charges after vacatur because the vacatur has the effect of permitting the defendant to withdraw from the plea bargain.
The full text of Martinez v. Superior Court of Santa Clara can be found here:
The Ninth Circuit has declared unlawful the government’s metering policy, which turned asylum seekers back from ports of entry and told them to return at a later time.
“[A] noncitizen stopped by U.S. officials at the border is eligible to apply for asylum under § 1158(a)(1).” “[A] noncitizen stopped by officials at the border is an “applicant for admission” under § 1225(a)(1) because she “arrives in the United States.”
“We hold that when an agency refuses to accept, in any form, a request that it take a required action, it has ‘withheld’ that duty within the meaning of § 706(1).” “We accordingly conclude that the metering policy constituted withholding of agency action, not delay. Under the metering policy, border officials turned away noncitizens without taking any steps to keep track of who was being turned away or otherwise allowing them to open asylum applications. Such a wholesale refusal to carry out a mandatory duty—leaving the responsibility to try again in each noncitizen’s hands—cannot be called delay within the meaning of § 706(1). Nor did the Government’s informal and sporadic coordination with Mexican government officials or nonprofits keeping waitlists transform the metering policy into delay rather than withholding. Organizing by interested third parties did not satisfy the Government’s obligation to inspect asylum seekers. If anything, it indicates that the Government was not fulfilling its obligations.”
“Even minimal steps by the Government, such as implementing and following a waitlist system or initiating the asylum process, would shift the § 706(1) analysis of any challenge from the withholding category into the delay category. But because the Government in this case did not take any such steps, we need not (and cannot) reach the question whether any delay would have been reasonable. Sections 1158 and 1225 require border officials to inspect noncitizens seeking asylum at the border, and the metering policy withheld that duty.“
The Ninth Circuit modified the District Court’s injunction, as it applies to reopening the already denied asylum applications of class members. “The injunction may not require the Government, on its own initiative, to reopen or reconsider (or to move to reopen or reconsider) an asylum officer, IJ, or BIA decision in a removal proceeding. That said, the negative injunctive relief properly prohibits the Government from applying the Asylum Transit Rule to a P.I. class member, even if it permissibly applied the Rule to that person in the past. For instance, if an IJ has denied a P.I. class member’s asylum application on the basis of the Asylum Transit Rule, and the P.I. class member moves for reconsideration by the IJ, the negative injunctive relief prohibits the IJ from relying on the Asylum Transit Rule to deny the motion (although the IJ may deny the motion if there is a different valid ground). Likewise, if that P.I. class member appeals to the BIA, the BIA may not use the Asylum Transit Rule to affirm the IJ’s decision (although the BIA may affirm if there is a different valid ground). And if the BIA reverses the IJ’s decision and remands, the IJ may not apply the Asylum Transit Rule on remand. The same principle applies if a P.I. class member moves to reopen her removal proceeding: The IJ or the BIA may not use the Asylum Transit Rule to deny the motion (although they may deny the motion on a different valid ground).”
The full text of Al Otro Lado v. Mayorkas can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/10/23/22-55988.pdf
The Board of Immigration Appeals has determined that a California sentencing enhancement adds an element to the underlying offense. The Board noted California State law requires sentence-enhancing elements be charged in the information and found beyond a reasonable doubt by a jury.
“Accordingly, the respondent’s enhanced conviction under sections 191.5(b) and 20001(c) requires proof of the following elements: (1) the defendant drove a vehicle under the influence of drugs or alcohol in violation of the California Vehicle Code; (2) while driving under the influence, the driver also committed another infraction or an otherwise lawful act that might cause death; (3) the infraction or other act was committed in a negligent manner; (4) the negligent conduct caused the death of another person; (5) the driver knew that he or she had been involved in an accident that injured another person or knew from the nature of the accident that it was probable that another person was injured; and (6) the driver willfully fled the scene of the accident.'“
“The respondent’s compound conviction contains three mentes reae: (1) a negligence mens rea originating from section 191.5(b) for the actus reus of the driving violation; (2) a knowing mens rea originating from section 20001(c) for knowing that a person was injured; and (3) a willful mens rea for the actus rea of leaving the scene of the accident.” “The respondent does not contest the presence of a knowing mens rea in his enhanced conviction, but he argues that the mens rea of fleeing the scene cannot be applied to the conduct of the base offense of vehicular manslaughter while intoxicated because they are two discrete acts, each with a separate and distinct mens rea. He further argues that, like in Quintero-Cisneros, section 20001(c) supplies a culpable mental state to the respondent’s crime, but unlike in Quintero-Cisneros, section 20001(c) does not explicitly inject the knowing or willful mens rea into to the base offense of vehicular manslaughter; rather, the knowing or willful mens rea is tied to the separate and subsequent actus reus of fleeing the scene.”
“We are not convinced that Quintero-Cisneros provides for this distinction. The Ninth Circuit emphasized that because the sentencing enhancement in that case was an element, it was considered part of the offense of conviction and the combined offense must be compared to the generic definition under the categorical approach. Although the sentencing enhancement in that case differs from section 20001(c) because it modified the motivation with which the defendant committed the base offense, nothing in the Ninth Circuit’s analysis suggests that a sentencing enhancement that joins a further act and a mental state to the base offense would have been analyzed differently. Moreover, at the time of the negligent act resulting in an accident, the knowledge that the respondent had been involved in an injury accident inures, informing the decision to flee. The respondent has not identified any Ninth Circuit case law indicating that the elements of section 20001(c) must be analyzed separately from the elements of the respondent’s underlying conviction.”
“Therefore, the enhanced conviction contains a culpable mental state, and the remaining question is whether, in the context of the respondent’s conviction, the actus reus of fleeing the scene after having caused the death of another as a result of a negligent act while driving under the influence constitutes reprehensible conduct.” “We agree with DHS that knowingly and willfully fleeing the scene after being involved in an accident causing injury to another person is inherently reprehensible conduct.”
The decision drew a detailed dissent.
The full text of Matter of Khan can be found here:
The Eleventh Circuit has determined an applicant is not eligible for non-LPR cancellation of removal when his child turned 21 after filing the application but before the merits hearing. The court declined to determine if an exception to this rule would apply when there was undue delay by the court in hearing the application, finding no such delay in this case.
The full text of Diaz-Arellano v. US Attorney General can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/202212446.pdf
The Ninth Circuit has determined that a minor and his mother experienced past harm rising to the level of persecution. “Javi’s persecution began soon after the men who had murdered his father were released from prison. Members of M-18, a violent street gang, located and identified Javi and began to follow him from school to his home. These men ‘knew everything about’ Javi and called him the ‘faggot son’ of Carlos. They surrounded Javi and threatened to kill him and Candelaria. The threat was not idle; one of the men who threatened Javi’s life was the same person who had been convicted of murdering his father. Candelaria testified credibly that M18 held a ‘grudge’ against Carlos’s family, including Javi, because of the family’s perceived cooperation with the police after Carlos’s murder. And days after M-18’s death threat, armed men broke into Javi and Candelaria’s home ‘looking for someone.’ Our caselaw does not require that a petitioner wait for the threat of violence to materialize before seeking the protections of asylum law.”
“Here, the death threat against Javi was specific, menacing, and credible. The fact that M-18 repeatedly stalked Javi and, days after threatening his life, broke into his home looking for someone while armed, shows that the threat of harm— and possibly death—was imminent.”
“Here, two expert witnesses evaluated Javi and concluded that ‘Javi’s experience of having his life threatened after losing his father has left a profound psychological impact,’ which ‘meets criteria for diagnosis of Post-Traumatic Stress Disorder (PTSD).’ They wrote that, since leaving El Salvador, ‘Javi has experienced regular nightmares and flashbacks involving the men who threatened him’ and otherwise ‘experiences post-trauma symptoms on a regular basis.’ The expert witnesses also documented other “‘intrusive symptoms’ that, taken together, ‘make it hard for [Javi] to focus in school, interrupt his sleep, and make it hard to heal as he is regularly re-experiencing the trauma.; In failing to address uncontradicted evidence that Javi currently experiences PTSD as a result of having his life threatened by the men who murdered his father, the agency ignored the actual harm Javi continues to suffer from his experience in El Salvador.”
The full text of Corpeno-Romero v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/10/22/23-576.pdf
The Sixth Circuit has determined that an applicant who refused to answer questions related to marriage fraud at his I-751 interview, and whose conditional residency was terminated for constructive non-appearance at the interview, is not eligible to seek a waiver under section 237(a)(1)(H) of the INA.
The full text of Seldon v. Garland can be found here:
The Ninth Circuit has reversed an agency’s denial of asylum, finding that the non-citizen had experienced harm rising to the level of persecution, by actors the government of Mexico was unable to control, on account of her family ties.
“The harms that Meza Diaz and her family suffered— murder, physical assault, kidnapping, a home invasion, and specific, years-long death threats—clearly rise to the level of persecution under our precedents.”
“The report contained the attackers’ statement to Meza Diaz that ‘your time has come’ and that she was going to die. The attackers’ statement that Meza Diaz’s ‘time ha[d] come’ links the home invasion and attack to the numerous death threats Meza Diaz received after her brother’s murder and husband’s kidnapping. Several of those death threats were made by callers who told Meza Diaz that they knew she was Ismar’s sister and that she did not want to meet his fate—namely, being murdered. The police report also notes that Ismar’s murderers were recently released from prison. And the report summarizes Meza Diaz’s family history, including her brother’s murder, her husband’s kidnapping, and the death threats and extortion attempts that Meza Diaz suffered after both events.” “In concluding that Meza Diaz had not presented any evidence of a link between the home invasion and her family history, the agency failed to consider the attackers’ statement or the additional evidence presented in the police report in making its nexus determination.”
“But although Meza Diaz provided the police with significant information regarding who might have a motive to harm her, the police explicitly told her that they could not guarantee her safety and recommended that she flee the country. Meza Diaz presented compelling evidence indicating that the police were either unable or unwilling to control her persecutors.” “The explicit admission by the police that they could not ensure Meza Diaz’s safety must be given substantial weight because the question on this step is whether the government both ‘could and would provide protection.”
The full text of Meza Diaz v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/10/08/23-973.pdf
The Ninth Circuit has addressed the facts the agency must consider when determining if a non-citizen missed a hearing in Immigration Court due to exceptional circumstances. Namely, the agency must consider the totality of the circumstances, including whether the non-citizen had a motive to miss the hearing and whether the refusal to reopen would result in unconscionable circumstances. In this case, the minor children would be able to derive citizenship through their naturalized father if they were able to obtain permanent residency, and as such, the Court found that a refusal to reopen would cause unconscionable hardship. In addition, the non-citizens showed diligence following the issuance of their in absentia removal order by driving to court and speaking to the clerk, despite encountering two major car accidents, and promptly filing their motion to reopen. The court also emphasized that non-citizens are not required to make a prima facie showing of eligibility for relief to reopen an in absentia removal order.
The full text of Montejo-Gonzalez v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/10/17/21-304.pdf
The Department of Homeland Security has designated Lebanon for Temporary Protected Status. The designation of Lebanon for TPS will allow Lebanese nationals (and individuals having no nationality who last habitually resided in Lebanon) who have been continuously residing in the United States since October 16, 2024 to file initial applications for TPS, if they are otherwise eligible.
The full announcement can be found here:
The Ninth Circuit has clarified when an immigration judge may use similarities between declarations in unrelated asylum applications to support an adverse credibility determination. The Court found that similar narratives about non-unique events are not sufficient to warrant an adverse credibility finding. “Here, the IJ did not rely on any similarities in language, grammar, or narrative structure between Singh’s affidavit and any of the twenty redacted declarations submitted by the government below. As the government concedes, Singh’s affidavit substantially differs in its use of language, wording, and structure to describe the events in question. Instead, the IJ’s ‘principal concern’ was the alleged factual similarities between Singh’s testimony and that of the RKK Declarations.” “ Relying exclusively on broad factual similarities to trigger credibility suspicion runs counter to the special caution required under Matter of R-K-K- and its express focus on finding striking similarities in the language, grammar and structure of related affidavits.” To rely on factual similarities to render an adverse credibility determination would ignore that “persecution sometimes occurs through widespread or systematic actions by the government or by its acquiescence to third-party harm.”
The full text of Singh v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/10/04/23-95.pdf
