The immigration judge and the BIA decided the case based on an analysis that a young woman was targeted by a gang individually, raped and beaten because she could not pay extortion, even though her brother had also been injured and the stated purpose of the extortion was to get the parents to pay money to the gang. This decision provides a good analysis for the pleading and testimonial requirements that support such an asylum claim, a situation which often results in denials when the victim of such extortion does not understand the legal requirements for such a claim.
Category: Removal Proceedings
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4th Circuit Further Defines Family Asylum Group
A comprehensive decision, Sandra Hernandez-Cartagena v. William Barr (https://www.ca4.uscourts.gov/opinions/191823.P.pdf) by the 4th Circuit overturning and remanding a denial of asylum by an immigration judge, affirmed by the Board of Immigration Appeals (BIA), affirms the legitimacy of a family unit as an appropriate social group for asylum protection. The Fourth Circuit found that the BIA’s decision denying the asylum claim was ” manifestly contrary to the law and an abuse of discretion.” -
Virginia Law Criminalizing Gang Activity Not Categorically a CIMT
On July 19, 2019 the US Fourth Circuit Court of Appeals issued its decision finding that the Virginia offense of participating in criminal street gang activity is not categorically a crime involving moral turpitude.
The Virginia statute, Va. Code § 18.2-46.2(A), which prohibits participation in a criminal street gang, is as follows:
Any person who actively participates in or is a member of a criminal street gang and who knowingly and willfully participates in any predicate criminal act committed for the benefit of, at the direction of, or in association with any criminal street gang shall be guilty of a Class 5 felony.
The court reasoned that the statute criminalizes acivity which is not the requisite base, vile, and morally depraved conduct which must be found for it to be a crime of moral turpitude, using, as an example, a situation where a person wearing a gang scarf who trespassed onto property could be found guilty under the statute without any further criminal acts being involved.
This means that a simple conviction under this statute cannot be used as a basis for deportation of a person so convicted.
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Immig Judges’ Authority to Administratively Close Restored
The US Fourth Circuit Court of Appeals has restored Administrative Closure as an inherent power of Immigration Court judges, effectively overruling the current administration’s attempt to preclude this standard procedure. This tool permits adjudication of pending applications by temporarilly suspending immigration court proceedings.
This is a very good decision for persons in immigration court proceedings because when there is potential relief from removal, say when the foreign national has a US wife, or and approved PERM application, the attorney may ask for administrative closure to permit a decision on the green card application and possibly a hardship waiver, so that the foreign national can be granted residency status, or be able to expeditiously return to the United States upon the approval.
This decision overturns the US Attorney General’s recent order trying to stop Immigration Court judges from this procedure, presumably under this Administration’s current policy, which appears to many to be to create dysfunction in the immigration system, delaying applications or procedures that might help legal immigration, assist the undocumented to become documented, or ultimately create new voters out of those who gain legal permanent residence and then citizenship after prolonged court proceedings.
Although the Attorney General normally can set policy guidance for judges, the 4th Circuit determined that the reasoning of the AG was “. . . a stark departure, without notice, from long-used practice and thereby cannot be deemed consistent with earlier and later pronouncements” and inconsistent with its stated goals of expedition and efficiency. The court also found that the tool of administrative closure was inherent in the power establishing the immigration courts, granted to them by the US code — the power to efficiently administer and adjudicate their proceedings.
The case Romero v. Barr, and is located at: http://www.ca4.uscourts.gov/opinions/181850.P.pdf
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Family Can Be Social Group
Family Based Asylum Claim Explained – 4th Circuit
The 4th Circuit held: “The BIA and the IJ improperly focused on whether Gomez’s father and brother were threatened due to a protected reason in order to impute such protection to the whole family. This was in error. The correct analysis focuses on Gomez herself as the applicant, and asks whether Gomez was targeted because of her membership in the social group consisting of her immediate family. “
http://www.ca4.uscourts.gov/Opinions/Unpublished/152576.U.pdf
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
GOMEZ v. SESSIONS Case 15-2576 — Although unpublished, this provides guidance for those seeking asylum based on family persecution.
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US 4th Circuit Reverses Deportation based on Virginia Grand Larceny conviction
Omargharib v. Holder – Dec 23, 2014
On December 23, 2014, the US Fourth Circuit Ct of Appeals issued its published opinion in Sayed Omargharib v. Eric Holder, Jr. remanding to vacate the IJ’s Removal Order based on conviction under Virginia’s larceny statute.
IBLF attorney Steffanie Jones Lewis presented oral arguments before the panel on September 16, 2014, and an amicus brief was submitted by the Capital Area Immigrant’s Rights Coalition and the Immigrant and Refugee Appellate Center. The opinion, authored by Judge Floyd, and joined by Judges Niemeyer and Wynn, granted the petitioner’s motion for review; reversed and remanded with instructions, with Judge Niemeyer writing a separate concurring opinion.
The central issue before the Fourth Circuit was whether Omargharib’s 2011 grand larceny conviction in Virginia constitutes a “theft offense” as defined by 8 U.S.C. § 1101(a)(43)(G), and thus an aggravated felony under the INA that is grounds for removal. As a Published Opinion, this decision is now a precedent for the Circuit, and can be cited as such in any similar case.
Construing Descamps, the court found the Virginia crime of larceny is indivisible as a matter of law and that the “modified categorical” approach has no role to play in this case. Instead, the categorical approach applies, and Omargharib’s grand larceny conviction “does not constitute an aggravated felony under the INA.”
Mr. Omargharib, a legal permanent resident for 28 years, was originally convicted in Fairfax County Court of grand larceny of two pool sticks, having extremely poor representation that failed to either call witnesses or present evidence (including the two pool sticks he owned and showed to investigating police officers). After his trial attorney failed to make any appeal of the conviction, and the conviction became known to immigration authorities, Mr. Omargharib was ultimately detained and remanded to immigration court in Arlington Virginia at which point IBLF became involved and fought the conviction all the way to the Virginia Supreme Court which concluded, rather sadly, that the trial and representation were fully consistent with the requirements of Virginia criminal law. On the immigration court side, IBLF vainly argued appropriate law to the Arlington immigration judge, appealing several times to the BIA prior to obtaining this decision in the US Court of Appeals in Richmond Virginia. Although he had never been detained for the criminal conviction, Mr. Omargharib was detained by the immigration court for almost 3 years, at great personal and public expense, before finally being released under supervision pending the appellate court decision. His case demonstrates one of the horrible economic consequences of our broken immigration system and overly aggressive policy in the prosecution of such cases.
This decision benefits LPR’s and intending immigrants who have been convicted in Virginia of grand larceny or petit larceny, and subjected by USCIS or Immigration Courts to deportation or other federal consequences.