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District Court Immigration-Related Decisions from the 11th Circuit and Published BIA Case Summaries

This is part of the latest issue of the AILA Georgia-Alabama and Central and South Florida Chapter Newsletter summarizing important immigration-related cases decided in District Courts in Georgia, Florida, and Alabama, and published BIA decisions nationwide. The summarized cases are for April and May 2016.

This is a group effort of a number of attorneys – John Gihon, Marshall Cohen, Roberta Cooper, Kathleen Schulman, Mariana Munoz-Parsons and myself. I would like to commend everyone for their hard work. Any feedback from members may be sent to me, Bruce Buchanan of Sebelist Buchanan Law PLLC at bbuchanan@sblimmigration.com or John Gihon of Shorstein, Lasnetski & Gihon at John@slgattorneys.com.

District Court Decisions

Brinklys & Caruso v. Johnson, 3:14-cv-1211-J-34MCR (M.D. Fla. Mar. 30, 2016) – Plaintiffs sought mandamus relief in the district court to compel USCIS to “properly adjudicate,” Plaintiff’s already denied I-130 Petition and I-485 Application. In the alternative, Plaintiffs sought redress under the APA. USCIS had denied the I-130 based upon the 204(c) bar, finding that the I-130 beneficiary had previously sought to procure immigration benefits through a fraudulent marriage. USCIS also denied the I-485 and Plaintiffs unsuccessfully appealed to the BIA. The Court noted that a mandamus action was improper in this circumstance to compel a different decision by USCIS as the APA provided the proper mechanism for review of the decision. The Court went on to find that USCIS and the BIA did not act arbitrarily and capriciously in determining that substantial and probative evidence supported the 204(c) marriage fraud finding. This is a thorough and well-written decision that provides a nice outline of the federal law regarding attacking a 204(c) finding by USCIS in the district courts.

United States v. Kealy, 1:14-CR-383-TWT (N.D. Ga. Apr. 4, 2016) – In a post-conviction criminal action, the district court denied a non-citizen defendant’s 28 USC § 2255 motion to vacate her plea on the basis of ineffective assistance of counsel. Ms. Kealy alleged that she received ineffective assistance of counsel regarding the immigration consequences of her plea in a federal criminal case. The district court judge who took the plea also denied the motion, finding that he was able to remove all possible prejudice that may have resulted due to the ineffective assistance of counsel by providing the post-Padilla approved Rule 11(b) plea-colloquy. The district court found that his advice to Ms. Kealy that “her guilty plea could have consequences upon her immigration status,” were sufficient to overcome any prejudice in this case.

Cho v. United States, 5:13-CV-153 (MT) (M.D. Ga., Apr. 21, 2016) – Ms. Cho, a lawful permanent resident, brought an action against the U.S. Government under the Federal Tort Claims Act (FTCA). The claims included false arrest and imprisonment, assault and intentional and negligent infliction of emotional distress, all stemming from her detention during removal proceedings at the Irwin County Jail in Georgia. Ms. Cho claimed that she should not have been arrested and detained by ICE during removal proceedings, that an ICE officer assaulted her with a firearm and, due to the poor conditions and treatment in ICE detention, she suffered a recurrence of cancer. The Court granted the Government’s motion for summary judgment as to every basis for the FTCA claim. The Court decided that the government was entitled to sovereign immunity for the false imprisonment claim under 8 U.S.C. § 1252(g). The Court found that the ICE officer’s actions did not constitute assault and found that Ms. Cho could not establish any actual injury caused by ICE to support the distress claim.

Published BIA Decisions:

Matter of Ruzku, 26 I&N Dec. 731 (BIA 2016) – The Board held that USCIS could not completely ignore scientifically-accredited DNA test results between siblings to establish a biological relationship in the context of an I-130 Petition. In 2014, USCIS issued a policy memo stating that they would not afford any evidentiary weight to sibling-to-sibling DNA test results. The Board found the rationale behind their memo lacking and determined that USCIS must consider as probative evidence DNA test results showing a 99.5 percent or greater chance of the sibling relationship. The Board cautioned that this evidence alone would generally not be enough to support the I-130 Petition and USCIS could require more evidence, however they could not simply ignore the DNA evidence altogether.

Matter of Garza-Olivares, 26 I&N Dec. 736 (BIA 2016) – The Board provided a rubric for how to analyze state and federal crimes in the context of whether they constitute an offense described in INA § 101(a)(43)(T)(aggravated felony crime of failing to appear). Expanding upon its jurisprudence for when the courts may utilize the circumstance-specific approach, the Board held that courts may employ both the categorical and circumstance-specific approach when analyzing offenses that may fall under INA § 101(a)(43)(T). The Board decided that two of the elements of the failure to appear aggravated felony are subject to the categorical approach and the remaining three elements are circumstance specific. This case may display the Board’s openness to expanding upon the offenses (and elements contained therein) for which the courts may use the more liberal circumstance specific approach.

Matter of Gonzalez Romo, 26 I&N Dec. 743 (BIA 2016) – The Board held that solicitation to commit a crime involving moral turpitude is a CIMT and renders even a returning LPR inadmissible under INA § 212(a)(2)(A)(i)(I). The respondent in this case was deemed an arriving alien after CBP determined that she was an inadmissible returning LPR because of her Arizona conviction for felony solicitation to possess marijuana for sale. The respondent argued that the INA §212 CIMT ground specifically includes conspiracies and attempts but excludes solicitation. The Board disagreed, citing Matter of Vo, 25 I&N Dec. 426 (BIA 2011), and reasoning that illicit trafficking in a controlled substance is a CIMT and therefore solicitation to commit an illicit trafficking offense is also a CIMT. The Board rejected the argument that Congress intended to exclude all solicitation offenses from INA § 212(a)(2)(A)(i)(I) by only listing conspiracy and attempt in the statute.

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