CA Appellate Court Finds that Green Card Holder did not Meaningfully Understand Consequences of Plea when Defense Counsel did not Provide Advice

The California Court of Appeal, Fourth District, has found that a green card holder did not meaningfully understand the consequences of his plea when his defense attorney told him that he was not an immigration lawyer and that he might need to hire one.

“Benitez testified that he did not understand that the narcotics charges he was pleading guilty to (possession for sales and transportation of a controlled substance) were aggravated felonies under federal law, which require mandatory deportation. Benitez’s testimony in this regard is bolstered by Reed’s testimony that he routinely advised noncitizen defendants to consult with immigration attorneys. Based on his testimony, Reed appeared to be wholly unaware of what constituted an aggravated felony under federal law. Reed also seemed to mistakenly focus on the fact that Benitez was pleading guilty to felony crimes rather than misdemeanor crimes; however, a state’s classification of crimes is not of paramount concern under federal immigration laws, the critical issue is whether the crime is an aggravated felony or not.”

The full text of People v. Benitez-Torres can be found here:

http://sos.metnews.com/sos.cgi?0725//G063400

BIA Reverses Grant of CAT to Bisexual Individual with Gang Tattoos and Criminal History from El Salvador

The Board of Immigration Appeals has reversed a grant of protection under the Convention Against Torture to a bisexual Salvadoran with a criminal history and gang tattoos.

“The Immigration Judge did not clearly err in finding that the applicant is a bisexual criminal deportee with visible gang tattoos. Further, the Immigration Judge did not clearly err in finding that if the applicant is removed, he will likely be detained upon his arrival in El Salvador pursuant to the state of exception policy because he will be identified as a suspected gang member deported from the United States with numerous gang-related tattoos and a criminal history. The record establishes that the applicant has a serious criminal history in the United States, and the information about his criminal history would likely be shared with the Salvadoran Government through the Criminal History Information Sharing Program between the United States and El Salvador. Further, the evidence establishes a history of widespread detention of prior and suspected gang members in El Salvador.”

“In finding that the applicant would suffer harm satisfying the definition of torture in detention, the Immigration Judge relied heavily on statistical information and country conditions evidence showing that some detainees and suspected gang members have been subjected to mistreatment, torture, or death while in detention. However, the Immigration Judge relied on a relatively small number of anecdotal incidents of mistreatment or death that fall well short of supporting a clear probability of torture. Overall, out of a total prison population of approximately 95,000 detainees as of November 2022, the Salvadoran Government documented 90 deaths in custody, some of which were attributable to lack of access to medication. Even if the actual number of abuses and deaths is higher than that documented by the Salvadoran Government, the evidence still demonstrates that only a small percentage of detainees died out of the tens of thousands detained.”

“Moreover, the Immigration Judge’s finding that numerous detainees have died in detention does not establish that public officials caused those deaths or that the unspecified human rights abuses rise to the level of torture. The substandard prison conditions referenced by the Immigration Judge, which may include severe overcrowding and lack of food, do not amount to torture as a matter of law unless ‘specifically intended to inflict severe physical or mental pain or suffering.’”

The full text of Matter of A-A-F-V- can be found here:

https://www.justice.gov/eoir/media/1406751/dl?inline

BIA Reverses CAT Grant to Russian Citizen

The Board of Immigration Appeals has reversed a grant of protection under the Convention Against Torture to a Russian citizen who was supportive of Ukraine and who had twice been detained by the FSB, finding that the record supported the Immigration Judge’s finding that the applicant might be detained and interrogated upon arrival in Russia, there was insufficient evidence that this treatment would rise to the level of torture.

The full text of Matter of E-Z- can be found here:

https://www.justice.gov/eoir/media/1407026/dl?inline

BIA Affirms Discretionary Denial to Applicant with Criminal History and False Social Security Numbers

The Board of Immigration Appeals has affirmed the discretionary denial of relief to an individual arrested for driving under the influence after consuming 20 beers, when his 10-year-old son was in the car with him, and who has used two social security numbers not validly issued to him for employment and tax purposes. The BIA also noted that the applicant claimed relatives in Mexico as dependents on his tax return without acknowledging that the United States has a tax treaty with Mexico that actually permits this if the applicant is providing at least 50% of those relatives’ support.

The full text of Matter of Gonzalez Jimenez can be found here:

https://www.justice.gov/eoir/media/1407386/dl?inline

BIA Reverses CAT Grant to Mentally Ill Haitian Man with Criminal Record

The Board of Immigration Appeals has reversed a grant of protection under the Convention Against Torture to a severely mentally ill Haitian man, deemed incompetent in removal proceedings. The BIA noted that the expert witness “could not estimate how many criminal deportees were incarcerated or killed in 2022 or 2023. Anecdotal reports of some criminal deportees being indefinitely detained in torturous conditions are insufficient to establish that the respondent is more likely than not to have that experience.“ The BIA also noted that the prison officials in Haiti lack an understanding of mental illness. Therefore, “[t]he respondent’s failure to show that Haitian officials are intentionally and deliberately creating and maintaining the harsh detention conditions that he fears for the specific purpose of inflicting severe pain or suffering warrants reversal of the grant of his application for CAT protection.”

The full text of Matter of S-S- can be found here:

https://www.justice.gov/eoir/media/1407581/dl?inline

BIA Reverses Bond Grant to Applicant Convicted of Aggravated Assault

The Board of Immigration Appeals has reversed the grant of bond to a non-citizen recently convicted of aggravated assault, noting that the conviction involved “the applicant’s decision to engage in violent behavior against her partner by pouring alcohol on his back and setting him on fire using a cigarette. The victim sustained burns on his head, face, and torso and had to be placed in a medically-induced coma.”

The full text of Matter of C-M-M- can be found here:

https://www.justice.gov/eoir/media/1407986/dl?inline

BIA Rejects Gender-Based PSG

The Board of Immigration Appeals has determined that a particular social group defined by the alien’s sex or sex and nationality, standing alone, is overbroad and insufficiently particular to be cognizable. The reasoning provided is pretty hollow. The BIA attempts to distinguish the Ninth Circuit’s decision in Perdomo v. Holder by stating it predates the three part immutability-social distinction-particularity test laid out in Matter of M-E-V-G-, but the BIA established these three criteria in much earlier decisions that pre-date Perdomo. The BIA then fell back on its analysis that women of a particular nationality encompass too broad of a group with differing ages, socioeconomic statuses, etc. to be particularized. The BIA further concluded that recognizing a sex-based particular social group would impermissibly create a sixth protected group for asylum.

In a post-Chevron world, this decision just screams for a circuit court to roundly obliterate the absurdity of the BIA’s particular social group caselaw.

The full text of Matter of M-E-S-G- can be found here:

https://www.justice.gov/eoir/media/1408366/dl?inline

Ninth Circuit Suggests that Non-Citizen Challenge Denial of U Adjustment of Status in Future Removal Proceedings

The Ninth Circuit has determined that a District Court lacks jurisdiction over a challenge to USCIS’s authority to require U visa holders to submit medical exams with their adjustment of status applications under INA 245(m). The Court recognized that generally, USCIS has exclusive jurisdiction over 245(m) adjustment applications. Nonetheless, the Court suggested that “Cabello will be able to argue in any future removal proceedings before an IJ or later petition for review in a court of appeals that some adjudicator—the IJ, BIA, the court of appeals, or any or all of them—must be able to review her denial of § 1255(m) relief as a matter of due process.”

The full text of Cabello Garcia v. USCIS can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/07/22/23-35267.pdf

Third Circuit Rejects Subordination- and Animus-based Nexus Tests

The Third Circuit has again rejected the use of a subordination test (i.e., asking if a protected ground motive for persecution is subordinate to other motives) and an animus test (i.e., asking if the persecutor was motivated by an animus against the protected characteristic). In addition, the Court reiterated that just because a government is attempting to prevent torture does not mean it is succeeding, and that the efforts are not determinative of whether there is government acquiescence to torture.

The full text of Tipan Lopez v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/241444p.pdf

Third Circuit finds that Federal Conviction for False Statements Involves Deceit

The Third Circuit has determined that a federal conviction under 18 U.S.C. § 287 (false, fictitious or fraudulent claims) categorically involves deceit, and thus is an aggravated felony if it causes a loss to the U.S. government in excess of $10,000. “The action is submitting a false claim for the government to pay. The mental state requires lying because the claimant must know the claim is false. That is exactly what ‘deceit means: ‘the act of intentionally giving a false impression by ‘falsification, concealment, or cheating.’”

The full text of Lanoue v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/242583p.pdf

Third Circuit Chides BIA for Circumventing Statutory Provisions on Rescission of LPR Status

The Third Circuit has found that the Board of Immigration Appeals acted outside its authority when it certified a late appeal of a case granting adjustment of status to a non-citizen. The Court noted that once the 30-day appeal period had run, the applicant’s permanent residency status was final as a matter of law, and the executive branch had to utilize the provisions of the rescission statute if it wished to claw back that status. It was improper for the Board to circumvent the statutory rescission process by certifying an appeal of the immigration judge’s decision more than 30 days after if was issued.

The full text of Qatanani v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/241849p.pdf

BIA Reverses Termination to Seek Parole for CAA

The Board of Immigration Appeals has reversed a judge’s termination of proceedings, finding that termination is not appropriate for a respondent who was not admitted or paroled to seek humanitarian parole from USCIS, and eventually, apply for status under the Cuban Adjustment Act.

The full text of Matter of Roque-Izada can be found here:

https://www.justice.gov/eoir/media/1404086/dl?inline

BIA Finds that VA Indecent Exposure Conviction is CIMT

The Board of Immigration Appeals has determined that a Virginia conviction for indecent exposure is a crime involving moral turpitude. “For indecent exposure to constitute a crime involving moral turpitude, the statute prohibiting the conduct must require not only the willful exposure of private parts but also a lewd intent. Although section 18.2-387 of the Virginia Code does not include the word ‘lewd,’ it requires an ‘obscene display or exposure.’” “The Board has previously defined ‘lewd’ in the context of a lewd intent as ‘obscene or indecent.’ Thus, ‘lewd’ and ‘obscene’ have the same meaning.”

The full text of Matter of Mayorga Ipina can be found here:

https://www.justice.gov/eoir/media/1404721/dl?inline

BIA Addresses Nexus Standard

The Board of Immigration Appeals has stated that while “explicit statements from the persecutors regarding the protected ground are not required, there must be some showing of a connection beyond speculation such that the alleged harm is not solely stemming from statistical likelihoods or unfortunate coincidence.” “Thus, the Immigration Judge erred in concluding that a showing of nexus does not require indicia of persecutory motive.”

The full text of Matter of C-I-R-H- & H-S-V-R can be found here:

https://www.justice.gov/eoir/media/1404921/dl?inline

Supreme Court Discusses Timing for PFR in Withholding Only Cases

The Supreme Court has determined that the 30-day petition for review deadline is not jurisdictional, but rather, a claims processing rule. In cases involving administrative removal orders (and likely also reinstatement orders), the 30 day timeliness is measured from the issuance of the ICE order, rather than from any dismissal of withholding and CAT applications by the Board of Immigration Appeals. “An order denying relief under the CAT is not a final order of removal and does not affect the validity of a previously issued order of removal or render that order non-final.”

In terms of how a non-citizen will be able to get review of the denial of withholding and CAT, the Supreme Court suggested the following: “the Government can inform aliens of the need to file a petition within 30 days after the issuance of a FARO, and it can alert the court of appeals to the pendency of a withholding-only proceeding so that review there can wait until that issue is decided. And if requests for withholding of removal in cases like Riley’s are decided expeditiously—and that was the whole point of the supposedly streamlined procedure adopted by Congress to effect the quick removal of dangerous aliens—petitions for review of removal orders should not linger long on a court of appeals docket before the withholding issue is ready for review. Finally, if Government makes a general practice of what it has done in Riley’s case, i.e., declining to press for enforcement of the 30-day filing rule, aliens who are mistaken about when a petition for review must be filed will not be hurt.”

The full text of Riley v. Bondi can be found here:

https://www.supremecourt.gov/opinions/24pdf/23-1270_new_3dq3.pdf

Supreme Court Limits the Use of Universal Injunctions

The Supreme Court has severely curtailed the use of universal injunctions, finding them to exceed the equitable goal of providing complete relief to the party to a lawsuit.

The full text of Trump v. CASA can be found here:

https://www.supremecourt.gov/opinions/24pdf/24a884_new_5426.pdf

Eleventh Circuit Addresses Definition of Particular Social Group

The Eleventh Circuit has taken up the definition of a particular social group (PSG) now that deference is no longer due to the agency. In so doing, the Court declined to create a comprehensive definition, but affirmed that a PSG would be defined by immutability, identity, visibility, homogeneity, and cohesiveness.

The full text of Mejia Ponce v. Attorney General can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/202314124.pdf

Ninth Circuit Finds that Conviction for Shooting at Inhabited Dwelling is CIMT

The Ninth Circuit has determined that a California conviction for shooting an inhabited dwelling is a crime involving moral turpitude. “California Penal Code section 246 requires an intentional shooting of a firearm, that is, the use of a deadly weapon, in circumstances that necessarily pose a significant risk of bodily harm to another. We hold that the BIA correctly concluded that section 246 categorically qualifies as a crime involving moral turpitude.”

In addition, the Court determined that whether evidence is “new” for the purposes of a motion to reopen is a legal question over which the federals court have jurisdiction to review. The Court similarly concluded that it had jurisdiction to review whether an applicant has established a prima facie case for relief.

The decision also contained a detailed analysis regarding the petitioner’s competency and eligibility for protection under the Convention Against Torture.

The full text of Lemus-Escobar v. Bondi can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/06/16/18-73423.pdf

Sixth Circuit Limits Crime of Child Abuse Deportability Ground to Convictions Rendered while Defendant was a Non-Citizen

The Sixth Circuit has determined that the crime of child abuse ground of deportability found at 8 USC 1227a2Ei does not apply to a denaturalized individual whose conviction was entered while he was still a U.S. citizen.

The full text of Gonzalez Castillo v. Bondi can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0160p-06.pdf

Fourth Circuit Finds that OPPM Memo does not Create Enforceable Rights

The Fourth Circuit has determined that an OPPM memo instructing judges to issue a cancellation of removal grant within 5 days of the visa number becoming available does not create any enforceable rights.

The full text of Zalaya Orellana v. Bondi can be found here:

https://www.ca4.uscourts.gov/opinions/241111.P.pdf