Supreme Court Applies Deferential Standard of Review to Past Persecution Determinations

The Supreme Court has determined that a federal court reviewing the agency’s determination that an asylum applicant did suffer serious enough harm to qualify as past persecution must apply the deferential substantial evidence standard. The Court clarified that the standard applies to both the review of the correctness of the underlying factual findings as well as the question as to whether these findings meet the legal definition of persecution.

“Our decisions in Wilkinson v. Garland, 601 U. S. 209 (2024), and Guerrero-Lasprilla v. Barr, 589 U. S. 221 (2020), are not to the contrary. In those cases, we held that a mixed question of law and fact could qualify as a ‘question of law’ exempt from §1252(a)’s bar on judicial review. But unlike §1252(b), §1252(a) does not speak to the standards of review for removal orders; rather, it addresses a court’s ability to review removal orders at all. As a result, whether a given issue is treated as a question of law exempt from the INA’s jurisdiction-stripping provisions tells us nothing about the type of review the court must afford to that issue under other provisions of the statute.”

The full text of Urias-Orellana v. Bondi can be found here: https://www.supremecourt.gov/opinions/25pdf/24-777_9ol1.pdf

BIA Finds no Duress Exception to Serious Nonpolitical Crime Bar

The Board of Immigration Appeals has determined there is no duress exception tot he serious nonpolitical crime bar to asylum and withholding of removal.

The full text of Matter of D-G-B-L- can be found here: https://www.justice.gov/eoir/media/1423546/dl?inline

BIA Limits Eligibility for 237(a)(1)(H) Waiver to Fraud at Entry, Rather than Fraud at Adjustment

The Board of Immigration Appeals has determined that a 237(a)(1)(H) waiver is available only to applicants who commit fraud at their time of entry, not at the stage of a subsequent adjustment of status.

The full text of Matter of Forjoe can be found here: https://www.justice.gov/eoir/media/1429116/dl?inline

BIA Effectively Eliminates Administrative Closure for U Visa Applicants

The Board of Immigration Appeals has determined that when a “U nonimmigrant visa is not immediately available to a respondent and the record does not establish that one is likely to be available in the reasonably near future, administrative closure over DHS’ objection is inappropriate.” The Board further noted that a six month period of administrative closure is presumptively reasonable.

The full text of Matter of Ibarra Vega can be found here: https://www.justice.gov/eoir/media/1429421/dl?inline

BIA Discredits Expert Witness

The Board of Immigration Appeals has determined that “where an expert witness’ background and testimony reflect a reluctance to consider contrary evidence and an inability to impartially assess matters involving the removal of persons to a given country, an Immigration Judge errs in giving the testimony of that witness significant weight.” In this case, the Board cited an expert witness’s co-authoring of an article that called for the cessation of all deportations of criminal non-citizens to Haiti.

The full text of Matter of D-J-L- can be found here: https://www.justice.gov/eoir/media/1430046/dl?inline

Ninth Circuit, Sitting en Banc, Affirms that CA Conviction for Assault with a Deadly Weapon is not Crime of Violence

The Ninth Circuit, sitting en banc, has affirmed that a California conviction for assault with a deadly weapon is not a crime of violence because it includes reckless crimes. “The California Supreme Court has held that the requisite mens rea for a conviction under Section 245(a)(1) is ‘an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.’ Section 245(a)(1), therefore, does not require an intent to apply force, knowledge that an action will cause force to be applied to another, or even subjective awareness of a risk that such force will result.”

The full text of United States v. Gomez can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2026/01/13/23-435.pdf

AAO Clarifies Factfinding Authority of USCIS in Connection with Withdrawn Petition

The Administrative Appeals Office has concluded that the regulations “ allow USCIS to recognize a withdrawal while making further findings of fact relevant to future benefit requests, including fraud or willful misrepresentation of material fact.“

The full text of Matter of Texperts, Inc. can be found here: https://www.justice.gov/eoir/media/1430151/dl?inline

BIA Finds Presumption of Future Harm Rebutted Despite Widespread Violence in Haiti

The Board of Immigration Appeals has determined that “[w]here a presumption of a future threat to life or freedom applies, an Immigration Judge cannot rely on generalized crime and widespread violence unrelated to the original claim to find the presumption has not been rebutted, particularly where other evidence suggests a fundamental change in circumstances such that a respondent will no longer be harmed on account of a protected ground.”

The full text of Matter of R-B-E- can be found here: https://www.justice.gov/eoir/media/1430191/dl?inline

Eleventh Circuit Finds that FL Conviction for Attempted Armed Robbery is not Violent Felony

The Eleventh Circuit has determined that a Florida conviction attempted armed robbery is not a violent felony because it requires only an attempt to threaten, which falls short of an attempt to use violent force. “To secure a conviction for attempted armed robbery in Florida, the government can prove that a defendant, carrying a weapon, formed an intention to take money or property by force or threat and took one overt act toward that end. This burden falls short of requiring the government to prove that the defendant used, attempted to use, or threatened to use force.”

The full text of United States v. Lightsey can be found here: https://media.ca11.uscourts.gov/opinions/pub/files/202013682.reh.pdf

Ninth Circuit Again Blocks Review of U-Visa Waiver in District Court

The Ninth Circuit has again foreclosed an APA challenge to the denial of waiver under 8 USC 212(d)(14) requested in connection with a U visa, finding that the waiver application is necessarily one committed to the discretion of the Secretary of Homeland Security.

“In rejecting his constitutional challenge to the INA, we emphasize that we do not decide today whether, or to what extent, Plaintiff can raise his claims in removal proceedings. Nor do we decide whether, if the immigration courts cannot review his claims, such a result would violate the Constitution. What we do decide is that, to the extent Plaintiff has a viable challenge to the discretionary decisions of the immigration authorities, the only place he can advance that claim is in removal proceedings and a subsequent petition for review in the court of appeals.”

The full text of Chairez v. Mayorkas can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2026/03/05/24-4137.pdf

Fourth Circuit Rules that Federal Court has Jurisdiction over Question of Law Related to Discretionary Application

The Fourth Circuit has determined that a federal district court has jurisdiction over a purely legal question related to statutory eligibility for asylum for the beneficiary of an I-730, even though ultimately, USCIS has discretion whether to grant the I-730. In this case, the legal question was whether the asylee spouse could qualify for asylum through the I-730 process when she was subject to a reinstated removal order.

The full text of Ortez Reyes v. USCIS can be found here: https://www.ca4.uscourts.gov/opinions/251391.P.pdf

BIA Finds that Written Frivolous Warnings are Sufficient

The Board of Immigration Appeals has determined that the written frivolous warnings on the I-589 application are sufficient to give notice of the consequences of filing a frivolous asylum application. There is no requirement that a judge provide oral warnings and withdrawing the application does not preclude a frivolous finding.

The full text of Matter of S-M-H- can be found here: https://www.justice.gov/eoir/media/1425081/dl?inline

BIA Finds that there is no Presumption that a Misdemeanor is not a Particularly Serious Crime

The Board of Immigration Appeals has determined that there is no presumption that a single misdemeanor does not qualify as a particularly serious crime, but rather, the analysis in Matter of N-A-M- governs the determination.

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

https://www.justice.gov/eoir/media/1426071/dl?inline

BIA Undermines Expert Testimony

The Board of Immigration Appeals has again undermined the testimony of an expert witness, finding it insufficiently supported.

“First, the expert did not profess any direct knowledge of the extent to which China tortures those convicted of drug trafficking crimes abroad, nor did he articulate any past professional experience with death penalty cases in China or the way in which China implements the death penalty. Second, the expert noted in his report that ‘there is a paucity of statistics on torture and executions in China’ and ‘little official information on the handling of expatriated drug-traffickers.’ He also did not provide any meaningful estimations on the number of individuals sentenced to death or the percentage of those convicted of crimes who were sentenced to death. Although he cited a law journal article stating that 95 percent of death sentences in China involve drug crimes, intentional homicide, and robbery, this statistic was not broken down further as to how likely a person convicted of drug crimes was to receive the death penalty or the likelihood of that the death penalty would be inflicted on individuals, like the respondent, who were convicted of drug trafficking in another country.”

“The relevance and the reliability of an expert witness’ opinions are significantly undercut when those opinions are informed by anecdotal or inaccurate facts or data. Because the expert relied on two anecdotes that are not analogous to the respondent’s circumstances to support his prediction that the respondent would be detained and tortured due to his drug trafficking conviction in the United States, the Immigration Judge clearly erred in assigning significant weight to the expert’s opinion without reasonably considering the apparent deficient underlying factual basis.”

The BIA concluded that “[t]he general evidence of China’s harsh penalties for individuals convicted of drug trafficking crimes committed in China and the use of torture in Chinese prisons is insufficient to establish that the respondent will more likely than not be detained and tortured, extralegally or otherwise, based on his drug trafficking conviction in the United States.“

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

https://www.justice.gov/eoir/media/1426556/dl?inline

BIA Finds that Marriage to US Citizen is Insufficient for Sua Sponte Reopening

The Board of Immigration Appeals has held that “[a] respondent’s valid marriage to a United States citizen entered into after a removal order does not constitute an exceptional situation warranting sua sponte reopening of removal proceeding.”

The full text of Matter of Yadav can be found here: https://www.justice.gov/eoir/media/1426906/dl?inline

BIA Limits IJ's Authority on Remand for Background Checks

The Board of Immigration appeals has limited an Immigration Judge’s authority to consider new eligibility for relief when the case is remanded for background checks.

“We now modify our decision in Matter of M-D- and clarify that the scope of a background check remand is for the limited and narrow purpose of the Immigration Judge considering the reported results of DHS’ background and security checks and entering a final order regarding the relief or protection that formed the basis for the remand. The regulation at 8 C.F.R. § 1003.47(h) expressly authorizes the Immigration Judge to conduct a hearing, if necessary, to consider any “new information” that could potentially affect a respondent’s eligibility for the relief that formed the basis for the remand and instructs the Immigration Judge to then enter an order granting or denying the immigration relief sought. However, it does not authorize the Immigration Judge to consider a respondent’s application for a new or different form of relief or a respondent’s request for consideration of other issues in the context of the background check remand.“ “Thus, if a respondent seeks to apply for a new or different form of relief, the respondent must file a separate motion to reopen, accompanied by the appropriate fee, with the Immigration Court after the Immigration Judge enters an order granting or denying the relief that was the subject of the background check remand.”

The full text of Matter of L-S-C-R- can be found here: https://www.justice.gov/eoir/media/1428161/dl?inline

BIA Rejects Finding that Russian Government Would not Protect Convert from Familial Harm

The Board of Immigration Appeals has rejected the Immigration Judge’s determination that the Russian government would not protect a woman who converted from Islam to Orthodox Christianity.

“While the respondent began experiencing harm at the hands of her family as a child, this harm continued well into adulthood and the respondent still failed to report it to the authorities. As an adult the respondent traveled to different cities far away from her family, and at times lived outside of her family’s control, yet she never sought assistance or protection from the police or other authorities. Although the respondent argues that her family maintains connections with the police in her town such that reporting her harm would have been futile or dangerous, the respondent’s status as an adult, her ability to travel apart from her family, and her ability to communicate, all demonstrate that the respondent could have requested assistance from the authorities in her country.

Without any citation to the record, the respondent also argues that “record evidence” contradicts our conclusion that her conversion to Russian Orthodox Christianity makes police protection more likely. However, the respondent’s conversion makes her a member of the country’s majority religion, and the record reflects that the Russian Orthodox Church maintains a privileged status in Russia and works closely with the Russian Government. Given these facts, the respondent has not established that her family members, who practice Islam, would be able to meaningfully influence the Russian authorities.”

The full text of Matter of F-B-A- can be found here: https://www.justice.gov/eoir/media/1428266/dl?inline

Eleventh Circuit Finds that DC Conviction for Attempted First-Degree Sexual Abuse is not Rape Aggravated Felony

The Eleventh Circuit has determined that a District of Columbia conviction for attempted first-degree sexual abuse is not an attempted rape aggravated felony because it includes acts of digital penetration.

The full text of Barrie v. U.S. Attorney General can be found here: https://media.ca11.uscourts.gov/opinions/pub/files/202412504.pdf

Tenth Circuit Finds APA Jurisdiction to Review USCIS Decision to Terminate Refugee Status

The Tenth Circuit has determined that federal courts have jurisdiction under the Administrative Procedure Act to review USCIS’s decision to terminate refugee status.

“We first consider 8 U.S.C. § 1157(c)(4), the provision under which USCIS terminated Mukantagara’s refugee status. As we interpret it, that provision provides a two-step process. At step one, USCIS evaluates whether the noncitizen meets the statute’s eligibility requirement of not being a ‘refugee’ when admitted into the United States. At step two, USCIS has discretion to terminate the refugee status of any noncitizen who is eligible at step one. After that, we consider whether the INA’s jurisdiction-stripping provision at 8 U.S.C. § 1252(a)(2)(B)(ii) covers a district court’s review of USCIS’s eligibility determination at the above step one. We conclude that § 1252(a)(2)(B)(ii) applies only to discretionary actions and that the eligibility determination under § 1157(c)(4)’s step one is not discretionary.”

“When the INA directs immigration agencies to assess statutory eligibility criteri in a first step before exercising discretion in a second, the first step is not discretionary. Section 1157(c)(4)’s first step requires the agency to assess eligibility before deciding to terminate refugee status. Section 1157(c)(4)’s first step is nondiscretionary.“

The full text of Mukantagara v. Noem can be found here: https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111366275.pdf

Tenth Circuit Finds that CA Child Pornography Conviction does not Match Federal Definition of Child Pornography Crime

The Tenth Circuit has determined that a California conviction for possession of child pornography does not match the federal definition of a crime involving child pornography because “the statute covers nonexplicit images of children with no focus on the child’s intimate areas—for example, an image that depicts an adult simply hugging a fully clothed child where the adult had the intent to be aroused.”

The full text of United States v. Griffin can be found here: https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111367340.pdf