Ninth Circuit: Wilber Acevedo Granado v. Merrick Garland

 

In ruling the proposed social group insufficiently particular, the IJ erred in not considering the clinical definition of people with intellectual disabilities; the common law definition does not necessarily control.

Although the proposed group of people with intellectual disabilities might commonly be mixed with people with mental illness generally, the relevant question for social distinctiveness is whether the difference can be discerned sufficiently for that subset to face increased persecution.  Discrimination based on the manifest symptoms is equivalent to discrimination against the group.

Proposed second social group was insufficiently responded to by the agency, and its rejection was insufficiently reasoned by the IJ.

Petitioner's claim of risk of torture insufficient under the Convention, since the attacks by police are cases of mistaken identity, and maltreatment by the medical workers because of overcrowding and lack of knowledge.

Wilber Acevedo Granado v. Merrick Garland

Fifth Circuit: Nguhlefeh Njilefac v. Garland

 

Board did not abuse its discretion in discounting the value of affidavits with an attestation that didn't swear to the veracity of the affidavit, although the form used would be acceptable in an Article III court in the circuit.

Board's presumption of delivery is not so irrational as to become arbitrary, especially given the factual context, including lack of return to sender and previous successful deliveries to the address.

Nguhlefeh Njilefac v. Garland

Fifth Circuit: Alejos-Perez v. Garland

 

The state drugs statute isn't divisible; where the state's double jeopadry caselaw ultimately looks to the factual differences between violations within the same statute, a holding that each item in a list is a separate violation doesn't answer the question of divisibility for immigration purposes.

State statute is broader than the generic definition; remand to agency to determine if there is a reasonable probability that the conduct outside the reach of the generic offense would be prosecuted, and to assess alternate grounds of removability.

Alejos-Perez v. Garland

Eighth Circuit: Brigido Lopez-Chavez v. Merrick B. Garland

 

Because the law asks whether the previous deportation was on the basis of a certain predicate crime, the court engages in the inquiry from the present time, and even where the non-retroactive determination that the crime was not a valid predicate came after the deportation, the inquiry, from the standpoint of the present time, properly determines that the earlier deportation was not on the basis of a valid predicate crime.

Brigido Lopez-Chavez  v.  Merrick B. Garland

Eighth Circuit: Jose Gutierrez-Gutierrez v. Merrick B. Garland

 

Although the immigration removal order signed at the end of the earlier proceedings was signed by the prosecuting authority at the direction of the IJ, there is sufficient evidence of a proper removal order, since both that version and a version later signed by the judge are in the administrative record.

Proper inspection and a procedurally regular admission at the border did not establish a lawful entry, since the statute prohibited entry for ten years after the earlier removal.

Board's correctly determined that, given the phrasing of the current statute, there is no miscarriage of justice exception to the prohibition on reopening a reinstated removal order.

Jose Gutierrez-Gutierrez  v.  Merrick B. Garland

First Circuit: Thile v. Garland

 

Agency's decision that petitioner had not established state of citizenship was supported by substantial evidence, given the small amount produced after continuance, and lack of explanation for the limited amount of proof.

IJ did not have to make a formal adverse credibility finding to justify rejection of the petitioner's claim as to country of citizenship and requirement of additional evidence.

Under firm resettlement principle, claim against deportation is heard based on the country from which the petitioner came to the US, and from which he held a valid passport, which, since logically possible, creates an inference of sufficient opportunity for permanent residence.

Thile v. Garland

First Circuit: In Re: Da Graca

 

In a Habeas class action seeking relief for immigration detainees in the current pandemic, supervisory Mandamus doesn't run because the lower court has not palpably erred; it has reduced the detainee population significantly.  Advisory Mandamus doesn't run, since the determination of pandemic severity is a factual question, not a legal question, and since the population has been lowered, the balance between extraordinary circumstances and likely success doesn't need to be corrected.

 In Re: Da Graca

Ninth Circuit: Aguilar-Osorio v. Garland

 

The proposed social group of people who might testify against certain criminal organizations is, unlike in some other countries, not independently socially recognizable and distinct.

As the IJ referred to the irregular evidence offered in support of the argument suggesting future torture, the exhibit was admitted by judicial notice, and the Board needed to account for its claims in their decision.

DISSENT:

The irregular evidence isn't in the appellate record, so the Board can't account for it on remand, and the evidence itself is mixed as to the claim.

Aguilar-Osorio v. Garland

Ninth Circuit: Rodriguez v. Garland

 

Agency did not abuse its discretion in refusing to reopen an immigration proceeding on the basis of changed country conditions, as the petitioner did not produce evidence of a material change in the conditions within the country; while a change in personal circumstances can make the changed conditions more relevant to the petition, even such a hybrid claim would require a showing of changed conditions to reopen the proceeding.

Rodriguez v. Garland

First Circuit: Cuesta-Rojas v. Garland

 

Since the only record of the telephone interview was the investigator's notes, although the report of the investigator is entitled to a presumption of regularity, the discrepancies between the conversation as recorded in the notes and the other interviews of the petitioner do not offer sufficient evidence for the agency's determination.

Cuesta-Rojas v. Garland

Seventh Circuit: Jennifer Arguijo v. USCIS

 

Although the private support obligation for stepchildren usually ends with divorce, in public entitlement contexts such as state inheritance tax laws and SSA, the status usually doesn't imply a benefit termination context at divorce.  Since the agency hasn't offered a contrary interpretation, the step-child of the divorced abusive parent has a right to file for naturalization under the Act.

Jennifer Arguijo v. USCIS

Sixth Circuit: Vitalina Lucas Lopez v. Merrick B. Garland

 

Agency did not have to provide alien faced with removal proceedings notice in their native language; a notice in English sufficiently puts the recipient on notice that language assistance will need to be secured.

No authority to review IJ's refusal to sua sponte reopen prior proceeding that resulted in removal order in absentia.

Vitalina Lucas Lopez v. Merrick B. Garland 

Fifth Circuit: USA v. Nelson

 

Sufficient grounds for the stop, since, at the border, a consented-to scan of the trailer had revealed it to be largely empty, but a safety seal was evident on the doors; additionally, the stop was within fifty miles of the border.

Being told that he would be free to leave after the canine unit had checked the trailer was insufficiently custodial to exclude the non-mirandized statements in the interval.

Roving stops by Immigration are justified whenever there is reasonable suspicion of any criminal activity.

USA v. Nelson

Ninth Circuit: Villegas Sanchez v. Garland

 

Substantial evidence for the agency's determination that women who refuse to be victimized by local gangs are not a cognizable social group, since they are not perceived by the society as a distinct group separate from the fact of their persecution.

Agency was not required to recite each of the IJ's factual findings in its opinion, where circumstances indicated that the record was comprehensively reviewed.

Villegas Sanchez v. Garland

Fifth Circuit: USA v. Baltazar-Sebastian

Court's order prohibiting a released detainee's subsequent detention, since it was enforcing an earlier magistrate's holding that the detainee be released, is not within the general immigration removal of jurisdiction.

The bail reform statute does not preclude the pre-removal detention of an alien subsequent to the alien's release under the statute.

Administrative regulations prohibiting a criminal defendant from leaving the country refer to voluntary departures.

The detention does not violate the separation of powers.

Court below did not make formal findings about how the distance that lawyers had to travel related to the Sixth Amendment rights of the deft.

USA v. Baltazar-Sebastian 

Tenth Circuit: Birhanu v. Wilkinson

 

By considering the information provided and holding a hearing on the matter, the immigration judge took care in determining the competency of the pro se alien defendant sufficient to assure fundamental rights of Due Process; although the alien reported that the voices that he was hearing in his head disturbed his thought processes, his demeanor appeared sufficiently lucid and responsive.

Right to counsel claim under the Rehabilitation Act required administrative exhaustion.

For immigration law purposes, recklessly threatening substantial property damage with actual intent to interrupt public access to a portion of the building is a crime of moral turpitude.  The specific intent of the state statute is a sufficiently aggravating factor under circuit precedent.

Although subjective ability to dissociate and reflect is relevant to determining whether two acts are divisible, a three day gap sufficed to establish the division as a matter of law.

Chevron deference to agency on the question of whether the agency should consider the insanity element of the criminal plea, as a prior apparently contradictory agency interpretation spoke to the evidentiary bounds of the agency's consideration, and the cited opinion addressed the appropriate substantive grounds for the agency's consideration.

Concur/dissent:

Agency shoudl have considered mental health element of plea in relevant conviction; arbitrary application of precedent dejustifies deference.

Birhanu v. Wilkinson

Eighth Circuit: Javier Gonzalez v. Monty Wilkinson

 

Where the meaning of the state statute is plain, categorical review of state criminal statute for purpose of immigration law does not require that the petitioner establish that there is a reasonable probability of prosecution for conduct falling within the state statute but not within the scope of its federal analogue.

Javier Gonzalez  v.  Monty Wilkinson

Second Circuit: Cuthill v. Blinken

 

When a minor child of a newly naturalized alien takes their place in the visa queue, the legislative purpose of the statutory tolling of the child's age for the purpose of the pre-naturalization visa dictates that its tolled "statutory age" be applied within the statutory scheme for the post-naturalization visa.

The legislative intent is sufficiently clear to make Chevron deference inapplicable.

Cuthill v. Blinken

Fourth Circuit: Desmond Ndambi v. CoreCivic, Inc.

 

As civil immigration detainees fall outside the traditional employment paradigm, in in that the work is not a bargained-for exchange of labor, the federal minimum wage law does not apply.  The situation of the detainees is similar enough to those in criminal incarceration that the rules for work in prison apply.

Desmond Ndambi v. CoreCivic, Inc.

Seventh Circuit: Maria Mercedes Lopez Garcia v. William P. Barr

 

As the proffered evidence would merely have established that the foreign country had high levels of crime and violence, the agency did not abuse its discretion in declining to reopen a previously adjudicated immigration claim.

Maria Mercedes Lopez Garcia v. William P. Barr