U.S. Department of Justice Washington, D.C. 20530

Vol. 17, No. 3 MARCH 2013

LITIGATION HIGHLIGHTS Ninth Circuit Remands I-212 Class Action to District Court To Determine Whether Intervening Brand-X De- ADOPTION cision Applies Retroactively To Class Members ►BIA must recognize nunc pro tunc adoption decrees (9th Cir.) 10 In 2007, the Ninth Circuit held that I-212 waiver applicants already  that plaintiff and a class of other Mex- unlawfully present in the United States ASYLUM ican citizens who had been previously are also subject to the ten-year bar

►Terrorism inadmissibility bar deported or removed from the United under INA § 212(a)(9)(C)(ii). does not apply to asylum grantee (5th States and then subsequently reen- Cir.) 7 tered without inspection, were ineligi- Following the remand to the dis- ►Immediate family members of a ble “as a matter of law” to adjust their trict court, plaintiffs sought, inter alia, local business owner Is not a particu- status because they were “ineligible to prevent the retroactive application lar social group (8th Cir.) 8 to receive I-212 waivers.” Duran- of Duran Gonzales I to those class ►Inconsistencies between an asy- Gonzales v. DHS, 508 F.3d 1227 (9th members who had filed their I-212 lum claim and State Department re- Cir. 2007) (Duran Gonzales I). Plain- applications prior to that decision. The ports cannot serve as the sole basis tiffs contended that, notwithstanding district court rejected the plaintiffs’ for an adverse credibility finding the statutory requirement that ten contentions and they timely appealed (11th Cir.) 11 year elapse between their last depar- contending that Duran Gonzales I ►Unsuccessful police efforts did ture from the United States and their should be given only prospective ef- not establish government was unable waiver application, Ninth Circuit case fect. In Duran Gonzales II, 659 F.3d or unwilling to control a private actor law permitted the waiver. 930 (9th Cir. 2011), the Ninth Circuit (8th Cir.) 8 also rejected plaintiffs’ contention, but In Duran Gonzales I, the court stayed the issuance of the mandate CRIME deferred under Brand X, to the BIA’s pending the resolution of an en banc

►Conviction for pointing or pre- interpretation in Matter of Torres- senting a firearm Is a particularly seri- Garcia, 23 I&N Dec. 866 (BIA 2006), (Continued on page 14) ous crime of violence (1st Cir.) 4 ►Fraudulent use of a social securi- ty card is a crime involving moral tur- pitude (7th Cir.) 7 The Fugitive Disentitlement Doctrine ►Conviction for misdemeanor sex- ual battery is a crime involving moral The fugitive disentitlement doc- or removal while an appeal of an im- turpitude (9th Cir.) 9 migration judge’s decision is pending trine (“FDD”) initially arose in the JURISDICTION criminal context, contemplating the before the BIA, it generally comes into dismissal of an absconding criminal play in two post-final-order scenarios: ►District court lacks jurisdicition to appellant’s appeal. It reflects the (1) while a petition for review is pend- review denial of NACARA special rule inherent authority of the federal ing before a court of appeals; and (2) cancellation of removal (S.D. Fla.) 14 courts of appeals to place conditions while a motion for reopening or recon- on the exercise of their appellate ju- sideration is pending before the BIA. risdiction. In one sense, the doctrine is a tool of case management, justify- The Supreme Court and the Inside ing the dismissal of certain cases Extension of the FDD from Criminal 6. Further Review Pending from a court docket. Over time it has to Civil Cases been extended to civil cases, includ- 5. DED Extension for Liberians ing immigration cases, where the ap- To date, the Supreme Court has 7. Summaries of Court Decisions pellant qualifies as a fugitive. In the addressed the doctrine in eight cases immigration context, because an al- spanning over a century. In the first, 13. Topical Parentheticals ien is not threatened with deportation (Continued on page 2)

1 March 2013 Immigration Litigation Bulletin The Fugitive Disentitlement Doctrine (Continued from page 1) missed at Term’s end, to be reinstat- deterrence was served and the Court Smith v. United States, 94 U.S. 97 ed only on the Court’s directive. opined that district courts had less (1876), the appellant absconded harsh alternatives at their disposal. while his appeal of his conviction was In later cases, the Court dis- pending before the Court. The Court missed outright rather than condition- In the most recent case, Degen was concerned that Smith might not ally. In Molinaro v. New Jersey, 396 v. United States, 517 U.S. 820 be made to respond to any judgment, U.S. 365 (1970), the convicted appel- (1996), the Court addressed the FDD stating it was “not inclined to hear lant failed to surrender himself to in a civil context. The appellant was and decide what may prove to be only state authorities as requested while involved in two proceedings; he fled a moot case”; without hearing the his case was pending before the abroad after both a criminal indict- case, it ordered dis- Court. The Court dis- ment and a civil forfeiture action had missal unless the missed, asserting that, been lodged against him. Although appellant surren- The Court observed while flight does not he showed no interest in returning to dered himself by the strip a case “of its char- face the criminal charges, he filed an end of the Court’s that absconding acter as an adjudicable answer in the civil case, but the dis- current term. Id. at betrays contempt case or controversy,” it trict court (affirmed by the circuit 97-98. The Court “disentitles” the fugi- court) granted the government sum- also entered a condi- for the very pro- tive from calling upon mary judgment because of his fugitive tional dismissal in a cess the appellant the resources of the status on the criminal side. The Court similar case, Bo- court to settle his stated that three reasons had been nahan v. Nebraska, invokes and injures claims. Id. at 366. given in its precedents for the FDD: 125 U.S. 692 (1887). (1) assuring the enforceability of a the dignity of the In 1975, the Court decision against the fugitive; (2) not In the third case, judiciary. again endorsed, as in allowing a fugitive to utilize the re- an appellant convict- Allen, dismissal by a sources of the court when he has ed and sentenced to state court. Estelle v. flouted the judicial system; and (3) death absconded while his case was Dorrough, 420 U.S. 534 (1975). After discouraging escape and encouraging pending before a state supreme filing an appeal of his conviction in voluntary surrender. Id. at 824. It court. After being captured and re- Texas, Dorrough absconded, only to also observed that disentitlement sentenced, he claimed the court vio- be captured two days later. The Court might be “necessary to prevent actual lated his due process by its dismissal, upheld the applicable state law, which prejudice to the Government from a although this was after a period dur- provided for dismissal unless an ab- fugitive’s extended absence. . . .” Id. ing which, if he had surrendered, his sconder voluntarily surrendered within at 825. The Court found that many appeal would have continued. Allen 10 days of escape. The Court stated of these rationales did not apply in v. State of Georgia, 166 U.S. 138 that such a dismissal “discourages the context of this case, where the (1987). The Court held that a state the felony of escape and encourages physical presence of the property court could follow its example and voluntary surrenders. It promotes the owner was unnecessary. It concluded efficient, dignified operation of” the dismiss, so long as the dismissal was that disentitlement was not appropri- consistent with state law and prac- appellate court. Id. at 539. ate here, although it recognized that tice. In addition to finding no due the court would suffer some indignity process violation, the Court observed In contrast to the earlier cases, and the result would not discourage that absconding betrays contempt for in Ortega-Rodriguez v. United States, the voluntary surrender of similar ab- the very process the appellant in- 507 U.S. 234 (1993), the Court, with- sconders. Nevertheless, it deemed vokes and injures the dignity of the out making a categorical pronounce- dismissal here “too blunt an instru- judiciary. ment, limited application of the FDD ment,” eroding rather than enhancing on the facts before it. The criminal respect for the judicial system. Id. at Eisler v. United States, 338 U.S. defendant fled after conviction, but 828. 189 (1949), involved an appellant was returned to custody eleven convicted of contempt of Congress in months later. He was no longer in The Extension of the FDD to Immi- connection with hearings before the flight when he was sentenced and gration Cases Before the BIA House Un-American Activities Commit- when he appealed. The Court noted tee. Eisler fled abroad after a grant of that all its rationales for the doctrine In the BIA’s precedential Matter certiorari. The government informed “assume some connection between of Barocio, 19 I. & N. Dec. 255 (BIA the Court post-argument that it had the defendant’s fugitive status and 1985), a couple from Mexico were exhausted its efforts to secure his the appellate process, sufficient to granted voluntary departure at a re- return. Over several dissents, a ma- make an appellate sanction a reason- moval hearing, failed to depart, and jority directed that the case be dis- able response.” Id. at 244. Here, only (Continued on page 3) 2 March 2013 Immigration Litigation Bulletin

with that letter.” Ibid. This analysis The Fugitive Disentitlement Doctrine reflected its precedent from criminal law cases; the Second Circuit earlier and statutory procedural protections (Continued from page 2) had held that “[t]he intent to flee from are afforded to criminal defendants then failed to report when asked to prosecution or arrest may be inferred than to aliens, the requirements for surrender. They filed a motion to reo- from a person’s failure to surrender to dismissing an immigration case pen claiming they would now return authorities once he learns that charg- should be less than those for a crimi- home to await a relative’s naturaliza- es against him are pending.” United nal matter. See, e.g. 673 F.2d at 77 tion. The BIA denied the motion, not- States v. Catino, 735 F.2d 718, 722 n.2. The circuits agree on the rele- ing that it lay within its discretion to (2d Cir. 1984). vance of the factors set forth in Degen deny motions even if they demon- v. United States, supra. However, the strated prima facie eligibility for relief. A different panel, however, courts of appeals differ in their ap- The BIA noted the aliens: (1) over- reached a contrary conclusion in an proaches on how to determine wheth- stayed their voluntary departure with- immigration case er an alien is a fugi- out providing a compelling explana- decided four years tive subject to dismis- tion of why they did so; (2) failed to after Gao. In Nen Di sal and to what ex- The BIA was report for removal when ordered with- Wu v. Holder, 646 tent, if at all, the mer- out providing any explanation; and (3) influenced by the F.3d 133 (2d Cir. its of an absconder’s remained outside the reach of the INS 2011) (Calabresi, claims should be con- “deliberate flouting of even after filing the motion to reopen. Pooler, and Chin), sidered when making the immigration laws,” The BIA presumably described these the alien twice failed this call. A circuit-by- factors in chronological order, not stating that the to surrender to DHS circuit review of the necessarily in order of importance. despite being pro- applicable prece- motion before it Without explicitly using the term tected from removal dents follows: “does not merit the “disentitlement,” the BIA referred to by a pre-existing the related Supreme Court rationales favorable exercise of stay. The panel de- Second Circuit and cited Molinaro. Considering the clined to dismiss, discretion required for totality of the circumstances, the BIA although it ultimate- In Ofosu v. reopening.” was influenced by the “deliberate ly denied the peti- McElroy, 98 F.3d 694 flouting of the immigration laws,” stat- tion for review on (2d Cir. 1996), the ing that the motion before it “does not the merits. It observed that “the au- alien failed to surrender to the INS merit the favorable exercise of discre- thorities are well aware of how to lo- while pursuing a stay of removal from tion required for reopening.” Id. at cate Wu. . . .” Id. at 136. Stating, the court of appeals. The alien argued 257-58. The decision highlights that without support, that the most im- that he was not a fugitive because he application of the FDD by the BIA is portant of the factors discussed in was staying at his home address, dependent on the facts of individual Degen in this case was the failure of which the immigration authorities and cases. the government to show “Wu’s fugi- the court possessed. The court reject- tive status has prejudiced its case,” ed this argument, noting that failing to The Extension of the FDD to the panel characterized Gao as report requires the agency to utilize Immigration Cases Before the “represent[ing] an extreme situation,” extra resources to locate the alien and Courts of Appeals and Wu “as the more normal case,” “deliberately increases the risks of because Gao’s claims “rest[ed] large- flight and delay.” Id. at 700-01. The The courts of appeals which ly on events of his own making that court subsequently noted the need to have addressed the issue have unani- transpired while he was a fugitive,” protect the dignity, integrity, and effi- mously concluded that the FDD is prejudicing the government by requir- cient operation of the judicial process applicable to petitions for review of ing it to address additional facts. Id. as well as the need to dissuade aliens final immigration orders. See Bar- at 137-38. from fleeing and attempting to acquire Levy v. U.S. INS, 990 F.2d 33 (2d Cir. additional equities or claims giving 1993); Arana v. U.S. INS, 673 F.2d 75 Third Circuit rise to successive motions. Gao v. (3d Cir. 1982); Giri v. Keisler, 507 Gonzales, 481 F.3d 173, 176 (2d Cir. F.3d 833 (5th Cir. 2007); Garcia- In Arana v. U.S. INS, supra, an 2007) (alien failed to surrender, gave Flores v. Gonzales, 477 F.3d 439 (6th alien failed to report and subsequent- no explanation for that failure, waited Cir. 2007); Sapoundjiev v. Ashcroft, ly sought a stay in district court. After seven years to file his motion, and 376 F.3d 727 (7th Cir. 2004); Hassan issuing a temporary stay while review- presented no circumstances weighing v. Gonzales, 484 F.3d 513 (8th Cir. ing the case, the district court judge against dismissal). It explicitly stated, 2007); Antonio-Martinez v. INS, 317 denied the habeas petition and or- “for an alien to become a fugitive, it is F.3d 1089 (9th Cir. 2003); Martin v. dered the alien to report for deporta- not necessary that anything happen Mukasey, 517 F.3d 1201 (10th tion. When the alien did not respond Cir.2008). One strand of reasoning is other than a bag-and-baggage letter (Continued on page 4) that, because stronger constitutional be issued and the alien not comply

3 March 2013 Immigration Litigation Bulletin

portunity to be heard,” id. at 730; The Fugitive Disentitlement Doctrine and (2) aliens cannot know that a stay of removal does not relieve them of court joined the Second (2007) and (Continued from page 3) the obligation to report. 384 F.3d Seventh Circuits (2004) in answering to a bench warrant and his attorney 916, 917 (7th Cir. 2004) (denying the question in the affirmative. did not dispute that he could not be rehearing). located, the circuit court dismissed Sixth Circuit his appeal challenging the warrant. It However, in a subsequent case, is not clear how the court would re- the court denied the government’s In Garcia-Flores v. Gonzales, su- spond if an alien argued that DHS motion to dismiss where: (1) the al- pra, the alien failed to report after his knew his or her whereabouts. ien’s counsel stated that the alien removal order became final. He was failed to report due to his poor advice; taken into custody by DHS the next Fifth Circuit and (2) once the government’s mo- year. The court granted the govern- tion was filed, counsel informed DHS ment’s motion to dismiss his petition The Fifth Circuit is amenable to the alien was willing to surrender and for review. It stated motions to dismiss the alien did so several days later. that “[s]omeone who even where DHS Gutierrez-Almazan v. Gonzales, 453 cannot be bound by a knows the alien’s “Someone who F.3d 956 (7th Cir. 2006). loss has warped the whereabouts. In Giri v. outcome in a way prej- Keisler, supra, the al- cannot be Eighth Circuit udicial to the other iens failed to report for bound by a loss side. . . .” Id. at 441. removal while their This court declined to apply the The court described petition for review was has warped the FDD in a case featuring an alien both the alien’s conduct as pending, and the gov- already outside the U.S. and with “evinc[ing] an intent to ernment moved to dis- outcome in a claims the court deemed meritorious. avail himself of the miss on that basis. In Hassan v. Gonzales, supra, a wom- way prejudicial ‘heads I win, tails you’ll The court stated that an subjected to female genital mutila- never find me’ ap- an alien “who de- to the other tion (“FGM”) in Somalia sought asy- proach, even if his sub- mands that the govern- lum, contending that her two daugh- sequent arrest foiled ment respect a favora- side.” ters would be subjected to FGM if she the effort.” Id. at 442. ble outcome must en- was removed. When her claim was It is unclear how the court would re- sure that an adverse decision also denied, she and her children went to spond to an alien’s argument that his can be carried out.” Id. at 835-36. Canada within the time period of her whereabouts were known to DHS. Referring to factors corresponding to voluntary departure grant. From Can- those set forth in Degen, and noting ada, she requested a stay of deporta- Seventh Circuit that “it is uncontested that the Giris tion but because she“failed to meet have become fugitives,” 507 F.3d at with government officials to discuss The court seems generally sym- 836, the court dismissed the aliens’ her request, the government assert- pathetic to government motions to petition. [ed] that she thus waived her claim.” dismiss, but has carved out an excep- Id. at 516. The court held that the tion where the alien, though initially Later the court directly ad- rationales for dismissal of her review failing to report, subsequently does dressed the issue of whether an alien petition were not present, as the alien so. In Sapoundjiev v. Ashcroft, supra, could be deemed a fugitive even if his had departed in compliance with a after their order became final, the address was known to the govern- lawful order rather than to evade the aliens failed to report. When their ment. In Bright v. Holder, 649 F.3d law, and enforceability was not an petition for review was before the 397 (5th Cir. 2011), the court ob- issue, because she would be outside court, their counsel argued that they served that there was a circuit split the U.S. if her petition was denied. were not fugitives because immigra- “on whether an alien is a fugitive Further, the court remanded to the tion officials knew their address. The where, as here, he has maintained agency for further proceedings. Re- court rejected this reasoning, stating the same address throughout his re- garding how the court might view pos- that it could not be known if the aliens moval proceedings, the address was sible dismissal of the more typical would be at home if agents came to known to DHS, and DHS made no case where an alien does not exercise arrest them, and concluding that attempt to locate or arrest the alien his privilege of voluntary departure “anyone who is told to surrender [to a following his failure to report for re- and fails to report, note that in an lawful order], and does not, is a fugi- moval.” Id. at 400. Noting that the earlier extradition case, the court stat- tive.” Id. at 729. The court also re- Ninth Circuit held to the contrary in its ed, “[a]lthough the concealment of jected the arguments that: (1) aliens precedent, and the Third (2010), one’s identity or location is certainly are entitled to ignore bag-and- Eighth (2006), and Eleventh (2008) probative evidence of the intent to circuits in unpublished decisions, the baggage letters because custody pre- vents their “having a meaningful op- (Continued on page 5)

4 March 2013 Immigration Litigation Bulletin

fugitive, the court had “no reservation The Fugitive Disentitlement Doctrine about concluding that the two failures together” justified this result. Id. at The court cited the requirement in (Continued from page 4) 1203-04. In reaching this conclusion, Ortega-Rodriguez v. United States, avoid arrest or prosecution, we are the court cited the Second Circuit’s supra, that there be “some connec- not persuaded that concealment per decision in Gao, suggesting that the tion between a defendant’s fugitive se is necessary to infer the intent to court’s intent was to allow for dismis- status and the appellate process,” avoid arrest or prosecution.” Matter sal even where DHS knows the where- and observed that, although the alien of Assarsson, 687 F.2d 1157, 1162 abouts of the non-reporting alien. had not reported for removal in 2004, (8th Cir. 1982). her whereabouts had been known to Conclusion her counsel, DHS, and the court since Ninth Circuit she filed her review petition. Id. at We can deduce several princi- 805. The court found Over time, the law in this court – ples from this line of it would be as in the Second Circuit -- has tilted development. First, “inappropriate” to dis- more in favor of aliens. In Antonio- invoking the fugitive miss the case. Ibid. The ultimate Martinez v. INS, supra, the attorney of disentitlement doc- an alien whose review petition had determination trine requires a strong Tenth Circuit been pending before the court for connection between about whether to about 10 years (because he was af- the act of absconding The only prece- fected by the ABC litigation) advised apply the fugitive and “the appellate dent in this circuit dis- the court he had been out of touch process.” Second, missed a non-reporting disentitlement with his client for at least two years; application of the doc- alien’s petition for re- the government then sought dismis- doctrine is left to trine must be support- view. The alien failed sal. The court held that disregard for ed by at least one of to report to DHS as the “legal and common-sense obliga- the sound discre- the rationales the requested after his tion to stay in touch while . . . lawyers Court has cited in its order became final; tion of the court. appeal an outstanding deportation various cases. Third, when DHS sought him order should be sanctioned.” Id. at even if these condi- shortly thereafter, he 1093. Equating the situation here tions are satisfied, the ultimate deter- had quit his job and moved from his with the “heads I win, tails you’ll never mination about whether to apply the last known address without advising find me” described in non- doctrine is left to the sound discretion DHS of a change of address as re- immigration contexts, the court grant- of the court. quired by law. Martin v. Mukasey, ed dismissal. The same outcome supra. Discussing the rationales be- obtained in Armentero v. INS, 412 hind the FDD and noting that other F.3d 1088 (9th Cir. 2005), in a pithy By Patrick Glen, & Alison Drucker, OIL courts separately had found failing to three-sentence order accompanied by 202-305-7232 report and failing to provide a current a lengthy dissent from J. Berzon. address sufficient to label an alien a

Several months later, another panel (B. Fletcher, Lay, and Hawkins) granted remand on the motion to reo- pen of a 63-year-old female asylum DED Extended for Liberians seeker; the court found the BIA USCIS automatically extended the United States while they file their abused its discretion both in improp- employment authorization docu- applications for new EADs that will erly discounting the alien’s affidavit ments (EADs) for Liberian nationals cover the full 18 months of the DED and in invoking the FDD where there covered under Deferred Enforced extension through Sept. 30, 2014. were “numerous flawed mailings of Departure (DED) through Sept. 30, The extension will also allow USCIS notice.” Bhasin v. Gonzales, 423 2013. This automatic extension of to complete processing and issuance F.3d 977, 989 (9th Cir. 2005). The EADs follows President Obama’s of those new EADs. decision in Wenquin Sun v. Mukasey, announcement on March 15, 2013, 555 F.3d 802 (9th Cir. 2009) of his decision to extend DED Although DED for Liberian na- (Schroeder, Nelson, and Reinhardt), through Sept. 30, 2014 for qualified tionals was scheduled to end on arrived four years later. Its first sen- Liberians and those persons without March 31, 2013, President Obama tence recognizes the alien as a bat- nationality who last habitually resid- determined that there are compelling tered spouse. The decision states ed in Liberia. foreign policy reasons to continue that “No court has ever applied the deferring enforced departure for eli- doctrine [FDD] to an alien whose The six-month automatic exten- gible Liberian nationals presently whereabouts are known and who has sion of existing EADs will permit eligi- living in the United States under the not fled from custody.” Id. at 804. ble Liberians to continue working in existing grant of DED. 5 March 2013 Immigration Litigation Bulletin FURTHER REVIEW PENDING: Update on Cases & Issues

Convictions – Modified Categorical Contact: John W. Blakeley, OIL Convictions – Relating to a Approach 202-514-1679 Controlled Substance

On January 7, 2013, the Su- Convictions – Modified Categorical After oral argument before a preme Court heard oral argument in Approach panel of the Second Circuit in Rojas Descamps v. United States, a crimi- v. Holder, No. 12-1227, the court sua nal sentencing case in which the On January 4, 2013, the govern- sponte ordered en banc rehearing on question presented is whether the ment filed a petition for panel rehear- January 23, 2013. The case pre- Ninth Circuit was correct in United ing in Aguilar-Turcios v. Holder, 691 sents the issue of whether a convic- States v. Aguila-Montes De Oca, 655 F.3d 1025 (9th Cir. 2012), in which tion for possession of drug parapher- F.3d 915 (9th Cir. 2011) (en banc), the Ninth Circuit applied United States nalia under 35 Pa. Stat. Ann.780-113 that a state conviction for burglary, v. Aguila-Montes De Oca, 655 F.3d (a)(32) categorically is a conviction of where the statute is missing an ele- 915 (9th Cir. 2011) (en banc), and a violation of a law of a State relating ment of the generic crime, may be held that the alien’s convictions did to a controlled substance under INA subject to the modified categorical not render him deportable. The re- § 237(a)(2)(B)(i). Oral argument be- approach. Resolution of the case is hearing petition argues that the court fore the panel suggests that the expected to implicate the reasoning should grant rehearing and hold the court’s concern is whether posses- of Aguila-Montes and the “missing case, and decide it when the Supreme sion of drug paraphernalia “relates element” rule that it overruled. The Court rules in Descamps v. United to” a controlled substance. En banc government’s brief was filed on De- States. The petition also argues that oral argument has been calendared cember 3, 2012. the court should permit the agency to for May 29, 2013. address other grounds for removal on Contact: Bryan Beier, OIL remand. Contact: Carol Federighi, OIL 202-514-4115 202-514-1903 Contact: Bryan Beier, OIL Asylum – Particular Social Group 202-514-4115 Child Status Protection Act Aging Out On September 27, 2012, the en Jurisdiction – Fact Issues banc Seventh Circuit heard argu- regarding CAT On January 25, 2013, the gov- ment on rehearing in Cece v. Holder, ernment filed in the Supreme Court a 668 F.3d 510 (2012), which held an On March 4, 2013, the govern- petition for a writ of certiorari chal- alien's proposed particular social ment filed a petition for en banc re- lenging the 2012 en banc 9th Circuit group of young Albanian women in hearing in Alphonsus v. Holder, 705 decision in Cuellar de Osorio, et al., v. danger of being targeted for kidnap- F.3d 1031 (9th Cir. 2013), challeng- Mayorkas, et al., 695 F.3d 1003, ping to be trafficked for prostitution ing the court’s rule that the jurisdic- which held that the Child Status Pro- was insufficiently defined by the tional bar in INA § 242(a)(2)(C) does tection Act extends priority date re- shared common characteristic of not apply to claims under the Conven- tention and automatic conversion facing danger. tion Against Torture where the applica- benefits to aged-out derivative bene- tion was not denied based on a crimi- ficiaries of all family visa petitions. Contact: Andy MacLachlan, OIL nal offense specified in the jurisdic- The government argues that INA 202-514-9718 tional bar. Judge Graber had dissent- § 203(h)(3) does not unambiguously ed from the panel opinion, arguing grant relief to all aliens who qualify as Asylum — Corroboration that the court’s rule is wrong as de- “child” derivative beneficiaries at the scribed in her concurring opinion in time a visa petition is filed but “age On December 11, 2012, an en Pechenkov v. Holder, 705 F.3d 444, out” of qualification by the time the banc panel of the Ninth Circuit heard 449-52 (9th Cir. 2013), that the Al- visa becomes available, and that the argument on rehearing in Oshodi v. phonsus case squarely presents the Board of Immigration Appeals reason- Holder. The court granted a sua jurisdictional question, and that the ably interpreted INA § 203(h)(3). The sponte call for en banc rehearing, court should take the case en banc. aliens’ response is due May 3, 2013. and withdrew its prior published The court has since ordered and re- opinion, 671 F.3d 1002, which de- ceived a response from Alphonsus. Contact: Gisela Westwater, OIL-DCS clined to follow, as dicta, the asylum 202-532-4174 corroboration rules in Ren v. Holder, Contact: Andy MacLachlan, OIL 648 F.3d 1079 (9th Cir. 2011). The 202-514-9718 Updated by Andy MacLachlan, OIL parties have filed en banc supple- 202-514-9718 mental briefs.

6 March 2013 Immigration Litigation Bulletin Summaries Of Recent Federal Court Decisions

cellation of removal because she had not provide material support to a ter- FIRST CIRCUIT given false testimony in the proceed- rorist organization or member of such ings and therefore could not establish organization. First Circuit Concludes Substan- the requisite good moral character. tial Evidence Supports BIA’s Refusal Consequently, the IJ ordered petition- Contact: Erik Quick, OIL-DCS to Remove Conditions on Permanent er’s removal, and the BIA dismissed her 202-353-9162 Residency and Denial of Cancellation appeal. of Removal for Lack of Good Moral SEVENTH CIRCUIT Character The court concluded that the “limited record” submitted by petitioner Seventh Circuit Holds Fraudulent In Reynoso v. Holder, __ F.3d __, “certainly cannot be Use of a Social Securi- 2013 WL 1197744 (1st Cir. March 26, said to require the con- ty Card Is a Crime In- 2013) (Torruella, Ripple, Howard), the clusion that [peti- Using a fraudulent volving Moral Turpi- First Circuit upheld the BIA’s decision tioner’s] marriage to [a tude to deny removal of the conditions on U.S. citizen] was bona Social Security card the petitioner’s permanent residency fide.” to gain employment In Marin-Rodriguez v. based on her failure to establish that Holder, 710 F.3d 734 she had entered her marriage in good The court also de- involved “inherently (7th Cir. 2013) (Manion, faith. termined that it had deceptive” conduct, Tinder, Lee), the Sev- jurisdiction to review enth Circuit held that The petitioner, a native and citi- the BIA’s denial of can- and is thus a crime using a fraudulent So- zen of the Dominican Republic, was cellation of removal, involving moral cial Security card to granted conditional permanent resi- and found no error in gain employment in- dency in the United States in 2002 on that denial, where the turpitude. volved “inherently de- the basis of her marriage to a United BIA correctly found peti- ceptive” conduct, and is States citizen. Sometime following tioner had given false thus a crime involving that grant, petitioner and her husband testimony about her marriage and this moral turpitude. The court agreed that began divorce proceedings. When she constituted a statutory bar to meeting the petitioner’s conviction records es- later sought to remove the conditions the requirement of good moral charac- tablished that he committed a CIMT on her residency, she filed her applica- ter necessary for cancellation. and affirmed the Matter of Silva- tion without her husband co-signing Trevino CIMT framework. The court the relevant form. Although his signa- Contact: Jesse Busen, OIL also declined to adopt Beltran-Tirado ture would have been necessary in the 202-305-7205 v. INS, 213 F.3d 1179 (9th Cir. 2000), ordinary course, petitioner sought to which recognized a CIMT exemption employ an alternate method in which FIFTH CIRCUIT for aliens who use fraudulent cards to she was required to prove that the engage in otherwise lawful behavior. marriage, although now ended, had been bona fide. DHS denied her peti- Fifth Circuit Holds Terrorism Inad- Contact: Michael Heyse, OIL tion upon concluding that she had not missibility Bar Does Not Apply to Asy- 202-305-7002 carried her burden of establishing that lum Grantee she had entered her marriage for rea- Seventh Circuit Holds that Alien sons other than obtaining immigration In Amrollah v. Holder, __ F.3d __, Failed to Prove Changed Conditions status in the United States. It there- 2013 WL 789734 (5th Cir. Mar. 4, in China Excusing His Late Filing of fore terminated her conditional resi- 2013) (Stewart, Davis, Clement), the Motion to Reopen to Apply for Asy- dent status and initiated removal pro- Fifth Circuit reversed the district court, lum Based on His Recent Conversion ceedings against her. Petitioner then holding that the government was collat- to Christianity renewed her request to remove the erally estopped from finding that the conditions on her residency and also alien was inadmissible, and ineligible In Zheng v. Holder, 710 F.3d 769 sought cancellation of removal. for adjustment, on the ground that the (7th Cir. 2013) (Posner, Williams, Nor- alien had engaged in terrorist activi- gle), the Seventh Circuit affirmed the The IJ also concluded that peti- ty. The court held that the government BIA’s denial of petitioner’s fourth un- tioner had not established that she was precluded from finding that the timely motion to reopen to reapply for had entered her marriage in good faith alien gave material support to a terror- asylum, this time based on his conver- and denied the request for removal of ist organization because the immigra- sion to Christianity while in detention conditions. The IJ further determined tion judge’s grant of asylum necessarily pending his removal to China. that petitioner was ineligible for can- included a determination that he did (Continued on page 8)

7 March 2013 Immigration Litigation Bulletin Summaries Of Recent Federal Court Decisions

(Continued from page 7) that conditions for those who practice government arrested suspects, but Christianity in China had worsened those charged were acquitted. Calles The petitioner arrived in the Unit- since 1999 “simply do not satisfy Quinteros also testified that the MS– ed States in 1991 and filed an appli- [petitioner’s] burden.” 13 gang threatened to rape his sister. cation for asylum the following year, He further testified that the gang had which was not granted. The INS then Contact: Terri Scadron, OIL extorted money from his father, at charged him with removability in 202-514-3760 some point torching two of his father's 1998 where he renewed his request buses. for asylum, asserting that his wife EIGHTH CIRCUIT (who arrived from China in 1994 and The IJ denied the asylum claim whom he married in 1995) would be because it was untimely filed, and also forcibly sterilized under China's one- Eighth Circuit Holds Immediate on the merits for failure to prove past child policy because they already had Family Members of a persecution and future two children. The IJ denied the re- Local Business Owner persecution. The IJ quest in 1999, relying in part on peti- Is Not a Particular So- The court noted acknowledged that tioner's lack of credibility, and the BIA cial Group while “[t]he country in- affirmed in 2002. Petitioner did not that “under BIA formation does indicate depart. Instead he filed three motions In Quinteros v. precedent, the that there are problems to reopen which were all denied by Holder, 707 F.3d 1006 with gangs in El Salva- the BIA because they were untimely (8th Cir. 2013) (Loken, term ‘family busi- dor,” “fear of gangs [is (and successive with respect to the Beam, Smith), the ness owner’ is too not] a basis for asylum second and third motions), and be- Eighth Circuit conclud- in the United States.” cause petitioner failed to demonstrate ed that immediate fam- amorphous to ade- Given the higher proof changed country conditions as to ily members of a local quately describe a standards for withhold- forced sterilization that would justify business owner is too ing of removal, the IJ an exception to the statutory bar indiscriminate to ade- social group.” also denied that relief, against untimely and successive mo- quately describe a par- as well as relief under tions to reopen. ticular social group for CAT. purposes of asylum. In September 2011, petitioner The court agreed with the IJ’s filed a fourth motion to reopen argu- The petitioner entered the United reasoning that the harm suffered by ing that he would be persecuted in States in 2003 at the age of 14 with- family members, including the MS-13 China because he is a Christian. He out being admitted or paroled. In April gang’s attempts to extort money from claimed he converted to Christianity in 2008, the former INS charged petition- the alien’s family because his father 2010 while in immigration detention, er with removability. He conceded owned a dairy farm and a bus trans- submitting evidence that he and his removability initially but later filed an portation company, did not demon- family were baptized at the First Chi- application for asylum, withholding of strate a well-founded fear of future nese Free Methodist Church. Without removal, and protection under CAT in persecution on account of a protected questioning the sincerity of his alleged September 2008. He asserted that he ground. The court noted that “under conversion, the BIA denied petition- was targeted for persecution because BIA precedent, the term ‘family busi- er’s motion to reopen based on his of his membership in a particular so- ness owner’ is too amorphous to ade- failure to demonstrate materially cial group consisting of family mem- quately describe a social group.” changed conditions in China pertinent bers of local business owners. Peti- to this claim since the 1999 hearing. tioner’s father owned a dairy farm and Contact: Hillel Smith, OIL bus transportation company and was 202-353-4419 The court held that the BIA erred well known within the town of 6,000 in by not explaining why the petitioner El Salvador. Petitioner claimed that the Eighth Circuit Holds Unsuccessful failed to prove changed conditions in Mara Salvatrucha (“MS–13”) gang Police Efforts Did Not Establish Gov- China sufficient to exempt him from pressured him to join but he refused. ernment Was Unable or Unwilling to the time and number restrictions on Control a Private Actor motions to reopen. Nonetheless, the Several years after petitioner fled court concluded that the error was the country and before he submitted In Gutierrez-Vidal v. Holder, __ harmless because the petitioner, in his asylum application, his 14–year– F.3d __, 2013 WL 869652 (8th Cir. fact, produced nothing indicating old brother was shot and killed in El Mar. 11, 2013) (Riley, Beam, Bye), the changed conditions since his original Salvador. Petitioner alleged that the Eighth Circuit concluded that the peti- removal hearing. The court explained MS–13 gang was responsible for his tioner failed to establish that the Peru- that “highly generalized statements” brother's murder. The El Salvadoran (Continued on page 9) 8 March 2013 Immigration Litigation Bulletin Summaries Of Recent Federal Court Decisions

(Continued from page 8) had not served on active duty in the tery under California Penal Code § vian government was unable or un- U.S. military. 243.4(e) categorically constitute willing to control the Shining Path crimes involving moral turpitude. terrorist organization, where police The petitioner, a citizen of efforts, including two investigations, South Korea, who had first entered The petitioner, a native and arrests and a protective order, did the United States in 1989, raised citizen of Mexico, entered the United not result in convictions or prevent the novel argument States without in- an attack. that he could meet spection in 1994 and the 10-year continu- The Supreme Court later adjusted his Petitioner entered the United ous residence re- has stated that status based on his States without inspection on January quirement by count- marriage to a U.S. 12, 2003. After DHS placed him in ing his military service “over no conceivable citizen. Petitioner removal proceedings, petitioner filed in the South Korean subject is the pleaded no contest to an affirmative application for asylum Armed Forces from legislative power of four separate counts and claimed that he would be killed if May 1995 to May of misdemeanor sex- he returned to Peru. The IJ found 1998. He asserted Congress more ual battery and was petitioner credible but denied his that he qualified for complete than it is subsequently placed application because he did not show the special continu- over” the admission in removal proceed- that the government was unwilling or ous presence excep- ings. The IJ found unable to control the Shining Path. tion available to hon- of aliens. him removable for The BIA denied petitioner’s appeal. orably discharged committing two or aliens who have more CIMTs. After The Eighth Circuit agreed that peti- served for twenty-four months “in petitioner appealed, the BIA deter- tioner failed to show that the Peruvi- active duty status in the Armed Forc- mined that there was no “realistic an government was unwilling to pro- es of the United States.” See 8 probability” that California would tect him because the police investi- U.S.C. § 1229b(d)(3). apply § 243.4(e) to non-morally tur- gated various incidents, made ar- pitudinous conduct, dismissed the rests, and entered an order of protec- The Ninth Circuit held that Con- appeal, and denied petitioner’s later tion on his behalf. The court further gress had a rational basis for limiting motion to reconsider. observed that petitioner’s failure to the exception to aliens who served in establish that the Peruvian govern- the U.S. military, since “the limited The Ninth Circuit first concluded ment was unable or unwilling to con- exception fashioned by Congress that conduct punishable under § trol the Shining Path fatally undercut functions as a valuable quid pro quo 243.4(e) falls within the generic fed- his future persecution claim. for assistance in our national de- eral definition for morally turpitudi- fense.” Moreover, said the court, nous conduct in the context of sex- Contact: Kelly Walls, OIL the Supreme Court has stated that related offenses. The court further 202-305-9678 “over no conceivable subject is the held that petitioner failed to meet his legislative power of Congress more burden of showing a “realistic proba- NINTH CIRCUIT complete than it is over” the admis- bility” that California would apply § sion of aliens, and that “the power to 243.4(e) to conduct falling outside of expel or exclude aliens [is] a funda- that generic definition because each Ninth Circuit Holds that Con- mental sovereign attribute . . . large- of his proffered cases involved sex- gress Could Rationally Limit an Ex- ly immune from judicial control.” ually abusive battery that necessarily ception to the Continuous Presence inflicts actual harm on a victim. Requirement to Aliens who Served Contact: Susan Bennett Green, OIL Judge Tashima dissented and ar- in the U.S. Military 202-532-4333 gued that California courts have ap- plied § 243.4(e) to conduct involving In Lim v. Holder, __ F.3d __, Ninth Circuit Holds Conviction intent to insult or humiliate that is 2013 WL 1197875 (9th Cir. March for Misdemeanor Sexual Battery Is not morally turpitudinous under 26, 2013) (O’Scannlain, Trott, Clif- a Crime Involving Moral Turpitude Ninth Circuit law. ton), the Ninth Circuit rejected a due process challenge to the agency’s In Gonzalez-Cervantes v. Hold- Contact: Andrew Insenga, OIL holding that petitioner was not enti- er, __ F.3d __, 2013 WL 934432 202-305-7816 tled to the cancellation of removal (9th Cir. Mar. 8, 2013) (Nelson, Mur- statute’s exception to the continuous guia, Tashima (dissenting)), the presence requirement, because he Ninth Circuit concluded that convic- tions for misdemeanor sexual bat- (Continued on page 10) 9 March 2013 Immigration Litigation Bulletin Summaries Of Recent Federal Court Decisions

(Continued from page 9) filed a corresponding I–485 applica- refusal to recognize nunc pro tunc Ninth Circuit Holds Agency Must tion to adjust status. The I–485 decrees issued after the age of 16.” Recognize Nunc Pro Tunc Adoption was denied in May 2001 and that Decrees and Alien’s Due Process there was no separate formal denial The Ninth Circuit noted that in Rights Were Violated of the I–130. Petitioner's adoptive Mathews v. USCIS, 458 Fed. Appx. mother filed a second I–130 peti- 831, 833 (11th Cir. 2012) In Amponsah v. Holder, 709 tion in 2007, and petitioner ulti- (unpublished), the Eleventh Circuit F.3d 1318 (9th Cir. 2013) (Fletcher, mately renewed her application for recently had accorded deference to Fisher, Quist (by designation)), the adjustment of status. Matter of Cariaga at Chevron step Ninth Circuit concluded, under step two, but said that Mathews, however, two of Chevron, U.S.A., Inc. v. Natural In October 2001, the Washing- provided “only a cursory analysis” of Resources Defense Council, Inc., ton superior court issued an order the issue. 467 U.S. 837 843 (1984)), that the modifying the July 2000 decree of BIA's blanket rule against recognizing adoption nunc pro tunc. The court The court also held that peti- state courts' adoption decrees en- provided that “the Decree of Adop- tioner was denied due process be- tered nunc pro tunc tion herein is hereby modified, nunc cause the BIA took administrative after a child's 16th pro tunc, in so far as notice of the finding of fraud in her birthday constitut- the effective date of husband’s visa petition case without ed an impermissi- “That some nunc filing of the Decree of affording her notice or an opportunity ble construction of pro tunc adoptions Adoption is hereby to be heard. “When taking adminis- the statutory defini- February 28, 2000, trative notice of controversial or indi- tion of a “child” decrees may involve four days prior to the vidualized facts, the BIA must pro- under INA § 101(b) fraud does not justi- sixteenth birthday of vide an alien with notice and an op- (1), and that case- fy the BIA's cate- the adoptee.” portunity to rebut them,” explained by-case considera- the court. tion of such adop- gorical refusal to Following com- tion decrees is re- recognize nunc pro mencement of removal Consequently, the court con- quired. “The BIA's proceedings, the IJ cluded that neither of the bases the interpretation is tunc decrees issued concluded that peti- agency gave for pretermitting the unreasonable be- after the age of 16.” tioner could not satisfy petitioner’s adjustment of status cause it gives little the statutory definition application could be sustained. or no weight to the of child because she federal policy of keeping families did not show that she had “been in Contact: Katherine Smith, OIL together, fails to afford deference to the legal custody of, and has resid- 202-532-4524 valid state court judgments in an ar- ed with, the adopting parent . . . for ea of the law — domestic relations — at least two years.” INA § 101(b)(1) Ninth Circuit Affirms Dismissal that is primarily a matter of state con- (E). On appeal, the BIA, reviewing of Class Action Challenge to Visa cern and addresses the possibility of de novo, affirmed without deciding Allocation Program immigration fraud through a sweep- the legal custody question, but ing, blanket rule rather than consid- agreeing with DHS that petitioner In Li v. Kerry, 710 F.3d 995 (9th ering the validity of nunc pro tunc could not satisfy the definition of Cir. 2013) (Reinhardt, Kleinfeld, adoption decrees on a case-by-case child because she was not adopted Smith), the Ninth Circuit affirmed the basis,” explained the court. before the age of 16. The BIA relied district court’s dismissal of a purport- on Matter of Cariaga, 15 I&N Dec. ed class action lawsuit under the The petitioner, a citizen of Gha- 716 (BIA 1976), where it had held APA. The plaintiffs, certain individu- na, was born in March 1984. She that an adoption decree entered als from China seeking permanent entered the United States as a visitor nunc pro tunc after the age of 16 is residency in the United States, al- in July 1999, when she was 15 years not given retroactive effect under leged that the Department of State old. On July 28, 2000, the Pierce the immigration laws. and DHS had misallocated immigrant County, Washington, Superior Court visas to eligible applicants in the em- issued a decree providing for peti- In rejecting the BIA’s interpre- ployment-based third preference tioner's adoption by her United States tation, the court explained that the category (EB–3) during the 2008 and citizen aunt, Beatrice Apori. In Sep- fact “that some nunc pro tunc adop- 2009 fiscal years. They requested tember 2000, petitioner's adoptive tions decrees may involve fraud that visa numbers be made available mother filed an I–130 family visa does not justify the BIA's categorical to them and other members of their petition on her behalf and petitioner class so that they could obtain visas (Continued on page 11)

10 March 2013 Immigration Litigation Bulletin

Summaries Of Recent Federal Court Decisions ELEVENTH CIRCUIT

(Continued from page 10) U.S. citizen and was approved for a Eleventh Circuit Holds Inconsist- or adjustment of status before the visa. USCIS denied her adjustment encies Between an Asylum Claim end of the fiscal year. application based on her alleged false and State Department Reports Can- claim of citizenship. not Serve as the Sole Basis for an The court held that USCIS did Adverse Credibility Finding not have a duty to approve applica- The IJ dismissed the charges tions for adjustment of status in pri- related to the alleged false claim of In Wu v. Holder, __ F.3d __, ority date order, and the claims citizenship but ordered petitioner re- 2013 WL 898148 (11th Cir. Mar. against the Department of State with moved for being present in the United 12, 2013) (Tjoflat, Wilson, Kravitch), respect to the alleged misallocation States without a valid the Eleventh Circuit of visa numbers in fiscal years 2008 visa. Petitioner filed rejected the IJ’s find- and 2009 were moot because the two additional adjust- The Eleventh Circuit ing that the petition- Department of State lacks the au- ment applications rejected the IJ’s im- er’s claim was im- thority to recapture visa numbers that were denied but plausible and con- from prior years. The court further plausibility grounds later reopened by because his repeated cluded that the pur- held that the plaintiffs could not state USCIS. Petitioner ported inconsisten- a claim for prospective relief under then filed a petition in references that the cies between peti- the APA because courts lack the au- district court to enjoin story “just seems sus- tioner’s claim and thority to “compel agency action her removal, reverse picious to me” was the State Department merely because the agency is not the denial of her first grounded in personal reports were insuffi- doing something we may think it adjustment applica- cient to support the should do.” tion, and compel perception rather than adverse credibility USCIS to approve her the record facts. finding. Judge Reinhardt wrote a sepa- two subsequent ad- rate concurring opinion “to note the justment applications. Petitioner en- importance of the problem that Plain- Subsequently, USCIS denied petition- tered the country on August 2, 2008, tiffs identify, and to suggest that, ers’ applications and the district court without being admitted or paroled. despite our affirmance of the district dismissed the case for lack of jurisdic- After being placed in removal pro- court's dismissal of Plaintiffs' com- tion. ceedings, petitioner filed for asylum plaint, our opinion should not be and claimed that Chinese authorities viewed as approving of the misalloca- The Ninth circuit affirmed the forced her to have an abortion after tion of immigrant visas.” district court’s dismissal for lack of she became pregnant out of wed- jurisdiction because the statute pre- lock. The IJ found petitioner’s story Contact: Aaron Goldsmith, OIL-DCS cludes review of final orders of remov- inherently implausible, questioned 202-532-4107 al in district court. The court also the credibility of her documentation found that there was no final agency from China, and relied on evidence Ninth Circuit Affirms Dismissal action at the time petitioner filed be- in the Country Profile that petition- of Habeas and Mandamus Claims cause her adjustment applications er’s region had no recent cases of Challenging Removal Order and were still open before USCIS and that forced abortions. The BIA upheld the Non-Final Agency Action USCIS’s subsequent denial of her ap- IJ’s credibility finding and dismissed plications mooted the mandamus petitioner’s appeal. In Mamigonian v. Biggs, __ F.3d action. The court further held that __, 2013 WL 1092713 (9th Cir. Mar. district courts have jurisdiction to hear The Eleventh Circuit rejected 14, 2013) (Gould, Smith, Duffy), the cases under the Administrative Proce- the IJ’s implausibility grounds be- Ninth Circuit affirmed the district dures Act challenging final agency cause his repeated references that court’s dismissal of the petitioner’s non-discretionary determinations for the story “just seems suspicious to habeas and mandamus claims for immigration benefits enumerated in 8 me” was grounded in personal per- lack of jurisdiction. U.S.C. § 1252(a)(2)(B)(i), provided ception rather than the record facts. there is no pending removal proceed- The court faulted the IJ for finding Petitioner, a native and citizen ing in which petitioner could seek petitioner’s story inconsistent solely of Armenia, arrived in the United those benefits. because it did not conform to the States on February 2, 2003, and pre- Country Profile and reasoned that, in sented a U.S. passport that did not Contact: Samuel Go, OIL-DCS the absence of any finding regarding belong to her. DHS paroled petition- 202-353-9923 petitioner’s demeanor, the con- er into the country and later placed sistency of her statements, or some her in removal proceedings. While in proceedings, petitioner married a (Continued on page 13) 11 March 2013 Immigration Litigation Bulletin This Month’s Topical Parentheticals

ASYLUM CHILD security card to obtain and maintain employment constituted a CIMT Wu v. United States Att’y Gen., __ Amponsah v. Holder, __ F. 3d __, where he admitted as part of his F. 3d __, 2013 WL 898148 (11th Cir. 2013 WL 1180298 (11th Cir. March guilty plea that he engaged in decep- March 12, 2013) (reversing adverse 22, 2013) (holding that the BIA’s rule tive behavior by knowingly using a credibility determination against fe- of not recognizing state courts’ nunc social security card to deceive his male Chinese applicant claiming past pro tunc adoption decrees for purpos- employer into thinking that he was forced abortion, on grounds that IJ’s es of determining whether the statuto- legally employable) conclusion that applicant’s story was ry definition of “child” is met consti- implausible was based on impermissi- tutes an impermissible construction Gonzalez-Cervantes v. Holder, __ ble speculation and conjecture about of the INA because: (a) it gives little F. 3d __, 2013 WL __ (9th Cir. March how Chinese officials would act, and weight to the federal policy of keeping 8, 2013) (holding that petitioner’s that IJ could not rely on inconsisten- families together; (b) fails to afford conviction for misdemeanor sexual cies between applicant’s story and deference to valid state court judg- battery under Cal. Pen. Code § 243.4 general country conditions evidence ments; and (c) addresses the possibil- (e) categorically constitutes a CIMT, unless there was an actual incon- ity of immigration fraud through a and agreeing with the BIA that there sistency or discrepancy in applicant’s “blanket” rule rather than on a case- is not a realistic probability that Cali- testimony) by-case basis; further holding that the fornia would apply § 243.4(e) to con- BIA violated petitioner’s due process duct that is not morally turpitudinous) Quinteros v. Holder, __ F. 3d __, rights by relying on USCIS’s finding of 2013 WL 764719 (8th Cir. March 1, marriage fraud even though that United States v. Rangel- 2013) (rejecting claim that “family ground was not raised by ICE before Castaneda, __ F. 3d __, 2013 WL members of a local business owner” the IJ) 829149 (4th Cir. March 7, 2013) are a particular social group because (reversing the district court and hold- the terms “family” and “business own- CRIMES ing that because Tennessee’s statu- er” are too amorphous to adequately tory rape provision sets the age of describe a PSG; holding that past Cole v. United States Att’y Gen., __ consent at eighteen and is therefore murder of brother, past gang threat to F. 3d __, 2013 WL 978199 (11th Cir. significantly broader than the generic rape sister, past gang recruitment of March 14, 2013) (holding that peti- offense (which sets the age of con- applicant, and past gang extortion of tioner’s guilty plea and indeterminate sent at 16), the defendant alien’s father do not establish “well-founded sentence of up to five years under SC conviction under that statute does fear” of future persecution of appli- law for pointing a firearm at another not categorically qualify as a crime of cant where his father, mother and person was a conviction for immigra- violence for purposes of a sentencing sisters continue to live unharmed in El tion purposes despite a “possible ex- enhancement in an illegally reentry Salvador) pungment” in the future, and consti- proceeding) tuted a crime of violence; further Gutierrez-Vidal v. Holder, __ F. 3d treating indeterminate sentence as a United States v. Rodriguez, __ __, 2013 WL 869652 (8th Cir. March 5-year sentence disqualifying petition- F.3d __, 2013 WL 1092568 (5th Cir. 11, 2013) (affirming IJ and BIA deter- er from withholding of removal; find- March 15, 2013) (en banc) (adopting minations that past threats and beat- ing that the criminal alien review bar a “plain-meaning approach” to the ings, and feared future killing by Shin- precluded review over most of peti- crime of violence enhancements of ing Path terrorists in Peru, do not con- tioner’s CAT arguments, which were sexual abuse of a minor and statuto- stitute “persecution,” because: (i) pri- factual in nature) ry rape under the sentencing guide- vate conduct is not “persecution” un- lines, and holding in an illegal reentry less it is by persons the government is Matter of Ortega-Lopez, 26 I&N case that the meaning of “minor” in unable or unwilling to control; and (ii) 99 (BIA March 8, 2013) (holding that “sexual abuse of a minor” is a person applicant failed to show the Peruvian the offense of sponsoring or exhibiting under the age of majority (18) and government was unable or unwilling an animal in an animal fighting ven- that the age of consent for purposes to control the Shining Path, where ture in violation of 7 U.S.C. § 2156(a) of statutory rape is the age of con- police investigated past beatings, (1) is categorically a CIMT) sent as defined by statute in the ju- made arrests, attempted unsuccess- risdiction where the prior conviction fully to convict the perpetrators, and Marin-Rodriguez v. Holder, __ F. was obtained) (Judges Owens and entered a protective order for appli- 3d __, 2013 WL 819383 (7th Cir. Jones concurred) cant) March 6, 2013) (holding that petition- er’s conviction under 18 U.S.C. § 1546(a) for using a fraudulent social (Continued on page 13)

12 March 2013 Immigration Litigation Bulletin

sonable suspicion developed in the This Month’s Topical Parentheticals course of the stop)

(Continued from page 12) cations, the district court would now VISAS JURISDICTION have jurisdiction under the APA)  Li v. Kerry, __ F. 3d __, 2013 WL Mamigonian v. Biggs, __ F. 3d __, Belleri v. United States, __ F. 3d 1150482 (9th Cir. March 20, 2013) 2013 WL 1092713 (9th Cir. March __, 2013 WL 979121 (11th Cir. (affirming district court’s dismissal of 14, 2013) (declining to dismiss ap- March 14, 2013) (remanding to dis- plaintiffs’ claim on mootness grounds peal under fugitive disentitlement trict court to address whether petition- where plaintiffs alleged that visa doctrine because, although petition- er is a US citizen for purposes of de- numbers should be made available er failed to report for deportation, termining whether 8 U.S.C. § 1252(g) to them because defendants misallo- her whereabouts were known to her precludes a claim for money damages cated immigrant visas to eligible Chi- counsel, DHS, and the court during against a federal official and the US nese applicants in the employment pendency of her case; affirming dis- arising out of petitioner’s 8-month based third preference category (EB- trict court’s dismissal for lack of ju- immigration detention) 3) during fiscal years 2008 and risdiction because: (a) the REAL ID 2009; reasoning that no authority Act eliminated habeas jurisdiction FOURTH AMENDMENT allows visa numbers from previous over removal orders; (b) there had years to be recaptured and allocated been no final agency action by USCIS United States v. Castro, __ F. during the current year) (Judge Rein- on the two adjustment applications Supp.2d __, 2013 WL 1010655 hart concurred) pending at the time she filed the (D.N.M. March 14, 2013) (granting petition; and (c) her mandamus defendant’s motion to suppress all claim was mooted when USCIS sub- evidence resulting from a vehicle stop sequently decided those two applica- after finding that the border patrol tions; further holding that because agent did not have reasonable suspi- USCIS had denied all pending appli- cion to stop the vehicle, and no rea-

Summaries Of Recent Federal Court Decisions

(Continued from page 11) Petitioner was admitted as a showing of specific intent to threaten other individualized reason for ques- lawful permanent resident in 2006 for conviction, and because threaten- tioning her credibility, it could not and was subsequently convicted of ing someone with a gun always in- say that the IJ’s adverse credibility § 16-23-410 and placed in removal volves a substantial risk of force; and determination was supported by proceedings. The IJ determined that (3) a particularly serious crime bar- “specific, cogent reasons.” petitioner was ineligible for asylum ring eligibility for withholding of re- or withholding of removal because moval, because the suspended inde- Contact: Tiffany Walters, OIL he was convicted of an aggravated terminate 5-year sentence qualified 202-532-4321 felony particularly serious crime. as a five-year sentence for immigra- The IJ denied petitioner’s CAT claim tion purposes. The court also held Eleventh Circuit Holds Convic- because he failed to show he would that it lacked jurisdiction over the tion for Pointing or Presenting a be tortured with the acquiescence of majority of the challenges to the Firearm Is a Particularly Serious the Jamaican government due to his agency’s denial of CAT protection, as Crime of Violence, Disqualifying disabilities, his status as a deportee, they were factual predictions about Petitioner from Relief or his imputed political opinion as a the likelihood of future events, and result of his father’s political activi- upheld the BIA’s finding that petition- In Cole v. United States Att’y ties. The BIA dismissed petitioner’s er’s detention upon return to Jamai- Gen., __ F.3d __, 2013 WL 978199 appeal. ca would not rise to the level of tor- (11th Cir. Mar. 14, 2013) (Marcus, ture. O’Connor, Pryor), the Eleventh Circuit The Eleventh Circuit held that held that the petitioner’s youthful petitioner’s conviction was: (1) an Contact: Dara Smith, OIL offender conviction for pointing and adult conviction for immigration pur- 202-514-8877 presenting a firearm in violation of poses, despite the designation of South Carolina Code § 16-23-410 “youthful offender” status; (2) an constituted an adult conviction for a aggravated felony crime of violence particularly serious crime. under 18 U.S.C. § 16(b), because the South Carolina court required a

13 March 2013 Immigration Litigation Bulletin Retroactivity of Brand-X Decisions INDEX TO CASES SUMMARIZED IN THIS ISSUE (Continued from page 1) lished practice or merely attempts decision Garfias-Rodriguez v. Hold- to fill a void in an unsettled area of Amponsah v. Holder 07 er, 702 F.3d 504 (9th Cir. 2012). law, (3) the extent to which the party Amrollah v. Holder 07 against whom the new rule is ap- Duran-Gonzales v. DHS 01 In Duran-Gonzales v. DHS, __ plied relied on the former rule, (4) Gonzalez-Cervantes v. Holder 10 F.3d __, 2013 WL 1276522 (9th the degree of the burden which a Gutierrez-Vidal v. Holder 09 Cir. March 29, 2013) (Canby, Silver- retroactive order imposes on a par- Li v. Kerry 08 man, Callahan (dissenting)) (Duran ty, and (5) the statutory interest in Lim v. Holder 09 Gonzales III), the Ninth Circuit re- applying a new rule despite the reli- Mamigonian v. Biggs 11 versed its panel decision in Duran ance of a party on the old standard. Marin-Rodriguez v. Holder 07 Gonzales II. A majority of the panel Quinteros v. Holder 08 determined that the en banc deci- Consequently, the panel re- Reynoso v. Holder 07 sion in Garfias should apply to the manded the case to the district Wu v. Holder 10 class in this case. In Garfias, the court to conduct a retroactivity anal- Zheng v. Holder 11 Ninth Circuit held that when the ysis. “Given the stage of this litiga- 07 court of appeals defers to an inter- tion and the fact that the record has vening agency decision conflicting not been fully developed, as in Garfi- with its prior decision, a reliance as–Rodriguez, it would not be prop- Guilty plea in sex trafficking analysis is required to determine er for us to apply that test in the first case in Mississippi whether the intervening decision instance,” said the court. retroactively applies to the party According to court documents, before the court. In particular, the Judge Callahan dissented from Moonseop Kim, 54, posted an inter- Ninth Circuit set forth a different the majority. He would have held net ad offering Korean female escort test for retroactivity in Brand X cas- that there had been no intervening services in September 2012. Under- es, namely the multi-factor inquiry controlling authority to reconsider cover officers with the Biloxi police articulated in Montgomery Ward & the panel’s decision, and that the responded to the ad and conducted a Co. v. FTC, 691 F.2d 1322 (9th Cir. law-of-the-case doctrine precluded sting operation which resulted in the 1982). rehearing on retroactivity grounds. arrest of Kim and a Korean female. ICE investigators subsequently dis- The Montgomery Ward factors By Francesco Isgro, OIL covered Kim was connected to a mul- include: (1) whether the particular ti-state prostitution ring operated out case is one of first impression, (2) Contact: Elizabeth Stevens, OIL-DCS of Atlantic City, N.J., and that Kim and whether the new rule represents an 202-616-9752 the female had both overstayed their abrupt departure from well estab- visas and were illegally in the country.

The Immigration Litigation Bulletin is a monthly publication of the Office of Im- Stuart F. Delery migration Litigation, Civil Division, U.S. Acting Assistant Attorney General Department of Justice. This publication August Flentje is intended to keep litigating attorneys within the Departments of Justice and Senior Counsel for Immigration Homeland Security informed about Civil Division immigration litigation matters and to increase the sharing of information “To defend and preserve David M. McConnell, Director between the field offices and Main the Executive’s Michelle Latour, Deputy Director Justice. authority to administer the Donald E. Keener, Deputy Director Office of Immigration Litigation Please note that the views expressed in Immigration and Nationality this publication do not necessarily laws of the United States” Francesco Isgro, Editor represent the views of this Office or Tim Ramnitz, Assistant Editor those of the United States Department Carla Weaver, Writer of Justice. If you would like to receive the Immigration Linda Purvin If you have any suggestions, or would Litigation Bulletin electronically send your Circulation like to submit a short article, please email address to: contact Francesco Isgrò at 202-616- 4877 or at [email protected]. [email protected]

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