In the last few weeks, the Eighth Circuit has issued three new opinions that are helpful to immigrants in removal proceedings.

The Eighth Circuit is known as perhaps the most difficult court in which to litigate immigration cases.  In 2014 the court granted just one immigration-related appeal.  So it is a welcome surprise that the Eighth Circuit has granted several immigration appeals in the last month.

I. Ortiz v. Lynch – Obstruction of Legal Process is Not an Aggravated Felony

On August 6, 2015 the Eighth Circuit issued a published decision in Ortiz v. Lynch, __ F.3d __, No. 14-2428, 2015 WL 4645869 (8th Cir. Aug. 6, 2015).  The only question was whether the immigrant’s conviction for “obstruction of legal process” was a “crime of violence” and therefore an aggravated felony.

The Eighth Circuit started by adopting the categorical approach announced by the Supreme Court in Moncrieffe v. Holder, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013). That requires review of the statute’s text, not “the facts of the particular prior case.” If the action described in the statute “categorically fits within the ‘generic’ federal definition of” a “crime of violence,” then the crime is categorically a crime of violence.

The court then looked to the statute’s text and court opinions interpreting the statute’s text.  Concluding that the statute penalized conduct that was broader than the federal definition of “crime of violence” and thus that one could be convicted under the statute for conduct that was not a “crime of violence,” the court held that the crime was not “categorically” a crime of violence.  Thus, the immigrant was not removable as charged, and the case was sent back to the lower court.

II. Ademo v. Lynch – Requiring the BIA to Rule on Issues Raised (Including Voluntary Departure Requests) 

In Ademo v. Lynch, __ F.3d __, No. 13-2621, 2015 WL 4568941, at *8 (8th Cir. July 30, 2015), the immigrant lost on his main argument, challenging the denial of his asylum application for lack of credibility.

However, Mr. Ademo also had also argued that in lieu of being deported he wished to leave voluntarily under an order of “voluntary departure.” Voluntary Departure allows an immigrant to leave the United States without being deported and sometimes avoids the harsh consequences of having a removal order on your record.

The issue before the Eighth Circuit was not whether Mr. Ademo deserved voluntary departure (circuit courts don’t have jurisdiction to consider that issue) but whether the BIA had made a mistake by failing to even address the issue. Apparently in his appeal to the BIA, Mr. Ademo’s request for voluntary departure had gone unanswered.

The Eighth Circuit concluded that were the “Board simply did not rule” on a question raised, the Board has “fail[ed] to exercise its discretion at all” and that remand to the BIA would be appropriate.

III. Mellouli v. Lynch – A State Paraphernalia Conviction Did Not Trigger Removal

This is a follow-up to the Supreme Court’s decision in Mellouli v. Lynch.  There the Supreme Court had held that the Eighth Circuit’s decision finding a conviction for possession of paraphernalia (a sock) was a drug crime and thus triggered removability was erroneous.

When the case got back to the Eighth Circuit, the court adopted the Supreme Court’s decision and remanded to the BIA. Mellouli v. Lynch, No. 12-3093, 2015 WL 4079087, at *1 (8th Cir. July 6, 2015) (the opinion isn’t on the Eighth Circuit’s website yet, but it is on Westlaw).

Oddly, the new opinion contains very little analysis of specifically what the BIA is supposed to do with the case on remand.  However, the Supreme Court’s decision left very little wiggle room. Because the Kansas paraphernalia statute is overbroad and includes substances not listed in the Federal controlled substances act, a state conviction for possession of paraphernalia generally is not a crime related to federal drug possession.