BIA Rejects Diagnosis-Only Mental Health Particular Social Group

The Board of Immigration Appeals has determined that the proposed particular social group of “Mexican men with Schizoaffective Disorder” is not cognizable when defined only by diagnosis. The Board found that the group lacked particularity and social distinction, because the record did not define limiting characteristics or show that Mexican society perceived people with that diagnosis as a distinct group.

The Board also found that the respondent’s fear of future persecution rested on a speculative chain of events, including loss of medication, erratic behavior, police attention, institutionalization, and harm inside an institution. The Board vacated the asylum grant, denied asylum and withholding, and remanded for CAT consideration.

The full text of Matter of L-A-D- can be found here: https://www.justice.gov/eoir/media/1442186/dl?inline

BIA Finds Three-Day Detention and Single Beating Did Not Rise to Persecution

The Board of Immigration Appeals has determined that a Mauritanian respondent’s three-day detention, during which he was beaten once but did not suffer significant injury, did not rise to the level of persecution. DHS appealed the Immigration Judge’s grant of withholding of removal, which had been based on political opinion and tribal membership claims.

The Board also held that a government’s general deference to tribal mechanisms for resolving tribal conflict does not, without more, show that the government is unable or unwilling to protect against tribal harm. The Board sustained DHS’s appeal, vacated the withholding grant, and remanded for further consideration of future harm and CAT protection.

The full text of Matter of A-H-D- can be found here: https://www.justice.gov/eoir/media/1442386/dl?inline

BIA Reverses Cancellation Grant Based on Criminal History and Lack of Remorse

The Board of Immigration Appeals has reversed a grant of cancellation of removal to a Haitian lawful permanent resident. The respondent had lived in the United States for many years and had significant favorable equities, but also had multiple criminal convictions and additional non-conviction conduct.

The Board found that the Immigration Judge did not give sufficient weight to the respondent’s criminal history, non-conviction conduct, and reluctance to accept responsibility. The Board concluded that those adverse factors outweighed the favorable equities, sustained DHS’s appeal, vacated the cancellation grant, and ordered the respondent removed to Haiti.

The full text of Matter of Germain can be found here: https://www.justice.gov/eoir/media/1442486/dl?inline

BIA Affirms Revocation of I-130 Based on Marriage Fraud Evidence

The Board of Immigration Appeals has determined that good and sufficient cause existed to revoke approval of a spousal visa petition where the record contained substantial and probative evidence of marriage fraud in the beneficiary’s prior marriage. The evidence included a sworn affidavit from the prior spouse admitting that the marriage was fraudulent and a contemporaneous government memorandum corroborating that admission.

The Board dismissed the appeal and affirmed the revocation. The Board found that later exculpatory letters did not overcome the earlier contemporaneous evidence, and that a marriage certificate alone did not establish that the prior marriage was bona fide. The Board concluded that the INA 204(c) marriage fraud bar applied, despite evidence that the petitioner may have been suffering cognitive decline at the time of his accusatory statement.

The full text of Matter of Nwagwu can be found here: https://www.justice.gov/eoir/media/1442531/dl?inline

BIA Vacates Bond Where Respondent Did Not Show He Was Not a Danger

The Board of Immigration Appeals has determined that a respondent’s false imprisonment conviction and related arrest history showed that he was a danger to the community and did not warrant release on bond. DHS appealed an Immigration Judge’s order releasing the respondent on a $15,000 bond.

The Board sustained DHS’s appeal and vacated the bond order. The Board emphasized that the respondent bore the burden of showing that he was not a danger to the community, that non-conviction conduct may be considered in the bond analysis, and that a dangerousness finding is dispositive without reaching flight risk.

The full text of Matter of Martinez-Rodriguez can be found here: https://www.justice.gov/eoir/media/1442701/dl?inline

BIA Finds Lack of Candor About Criminal History Weighs Heavily Against Cancellation

The Board of Immigration Appeals has determined that a respondent’s lack of candor about his criminal history is a significant adverse factor in the discretionary cancellation analysis. The respondent, a lawful permanent resident from Saint Vincent and the Grenadines, appealed the denial of cancellation of removal after returning to the United States and being charged as inadmissible based on a controlled substance conviction.

The Board affirmed the adverse credibility finding and dismissed the appeal. Although the respondent had strong positive equities, including decades of residence, U.S. citizen children, and employment history, the Board found that his undisclosed arrests, criminal history, and lack of candor outweighed the favorable factors.

The full text of Matter of Richards can be found here: https://www.justice.gov/eoir/media/1442711/dl?inline

Eleventh Circuit Upholds Florida Attempted Carjacking as Crime of Violence

The Eleventh Circuit has affirmed in part and vacated in part a sentence for a felon-in-possession conviction. The Court found no plain error in treating Florida attempted carjacking as a crime of violence for guideline purposes, relying on Florida robbery and carjacking precedent and the Sentencing Commission’s treatment of attempts.

The full text of United States v. Irons can be found here: https://media.ca11.uscourts.gov/opinions/pub/files/202412112.pdf

Eighth Circuit Applies Substantial Evidence Review to Cancellation Hardship Determination

The Eighth Circuit has denied a petition for review filed by a Guatemalan mother of six U.S. citizen children who sought cancellation of removal after living in the United States for approximately twenty years. The petitioner argued that her removal would cause qualifying hardship to her children.

The Court adopted substantial evidence review for cancellation hardship determinations after Wilkinson and concluded that the record did not compel a finding of exceptional and extremely unusual hardship. The Court also rejected the petitioner’s due process arguments, finding no liberty interest in discretionary cancellation of removal, and found that her voluntary departure argument was moot because she had already been removed.

The full text of Lopez-Vasquez v. Blanche can be found here: https://ecf.ca8.uscourts.gov/opndir/26/05/251338P.pd

Sixth Circuit Denies Withholding and Cancellation Claims

The Sixth Circuit has denied a petition for review filed by a Nigerian respondent who sought withholding of removal and cancellation of removal. The respondent based his withholding claim on his father’s alleged kidnapping in Nigeria and based his cancellation claim on hardship to his U.S. citizen children.

The Court held that a favorable credibility finding did not eliminate the respondent’s obligation to provide reasonably available corroboration. The Court also joined other circuits in applying substantial evidence review to the cancellation hardship determination after Wilkinson, and found that the record did not compel a finding of exceptional and extremely unusual hardship.

The full text of Nwosu v. Blanche can be found here: https://www.opn.ca6.uscourts.gov/opinions.pdf/26a0158p-06.pdf

Fifth Circuit Finds Citizenship Claim Time-Barred After Earlier Passport Denial

The Fifth Circuit has affirmed the dismissal of a citizenship action brought by a man who claimed that he was born in Laredo, Texas. The Department of State had repeatedly denied his passport applications based on concerns about his birth records, including a suspicious birth attendant and a conflicting Mexican birth certificate.

The Court held that the plaintiff’s claim under 8 USC 1503(a) was time-barred because the five-year limitations period began with the first final passport denial, not with later reapplications. The Court also held that the APA and mandamus claims were barred because section 1503(a) provided the exclusive adequate remedy, and affirmed dismissal of the constitutional claims.

The full text of Cortez v. Rubio can be found here: https://www.ca5.uscourts.gov/opinions/pub/25/25-20339-CV0.pdf

Fourth Circuit Finds Denial of Continuance Violated Statutory Right to Counsel

The Fourth Circuit has granted a petition for review filed by a Honduran asylum applicant whose attorney withdrew shortly before key deadlines in her removal proceedings. After the withdrawal, the Immigration Judge denied her request for more time and required her to proceed without counsel.

The Court held that the denial of a continuance violated the respondent’s statutory right to counsel under 8 USC 1229a(b)(4)(A). The Court found that the BIA failed to account for the practical effect of the intervening document deadline when evaluating how much time the respondent had to secure new counsel. The Court vacated the removal order and remanded for the BIA to address prejudice in the first instance.

The full text of Rodriguez-Solis v. Blanche can be found here: https://www.ca4.uscourts.gov/opinions/241937.P.pdf

Fourth Circuit Finds Virginia Firearm During Robbery Conviction Is Not a Crime of Violence

The Fourth Circuit has determined that a Virginia conviction for use of a firearm during robbery does not categorically qualify as a crime of violence under the federal sentencing guidelines. The Court was bound by its precedent holding that Virginia robbery can be committed by threats that do not necessarily require violent physical force.

The Court rejected the government’s argument that the firearm-use element cured the defect in the robbery predicate. Because the predicate offense still did not categorically require violent force, the Court vacated the sentence and remanded for resentencing. Although the case arose in the sentencing context, the categorical approach analysis may be useful in immigration cases involving Virginia robbery-related convictions.

The full text of United States v. Scott can be found here: https://www.ca4.uscourts.gov/opinions/254048.p.pdf

Third Circuit Denies Withholding Claim by Equally Divided Vote

The Third Circuit has denied a petition for review filed by a lawful permanent resident from the Dominican Republic who sought withholding of removal after a serious drug trafficking conviction. A majority of the panel agreed that it had jurisdiction after Riley (even though the petition did not mount a challenge to the underlying reinstatement order, only the denial of relief) and agreed that CAT protection was properly denied, but it fractured on the withholding issue.

Because the panel divided evenly on whether Matter of Y-L- lawfully provides a valid mandatory presumption that certain drug trafficking offenses are particularly serious crimes, the BIA’s ruling stood. The Court’s denial does not create precedential law on the validity of Matter of Y-L-, leaving the question for another day.

The full text of Laureano v. Attorney General can be found here: https://www2.ca3.uscourts.gov/opinarch/242433p.pdf

Second Circuit Requires But-For Eligibility Determination for Material Support Waiver Process

The Second Circuit has granted in part and denied in part a petition for review filed by a Sri Lankan respondent who was found to have provided material support to the LTTE by translating during an interrogation. The BIA treated the material support bar as dispositive of the respondent’s asylum, statutory withholding, and CAT withholding claims, and therefore declined to reach the merits of those claims.

The Court held that the BIA erred by failing to determine whether the respondent would be eligible for asylum or statutory withholding of removal but for the material support bar. Without that determination, the respondent could not pursue a discretionary waiver of the material support bar from DHS, which frustrated the statutory and regulatory waiver scheme. However, the Court denied the petition as to CAT protection, finding that substantial evidence supported the agency’s conclusion that the respondent had not shown that he would more likely than not be tortured if returned to Sri Lanka.

The full text of Sufiyan v. Blanche can be found here: https://ww3.ca2.uscourts.gov/decisions/OPN/22-6392_complete_amd_opn.pdf

First Circuit Finds Massachusetts Carjacking Is Not Categorically a Crime of Violence

The First Circuit has determined that Massachusetts carjacking does not categorically qualify as a crime of violence under the career-offender guideline. The defendant challenged his enhanced sentence, arguing that the Massachusetts offense can be committed without the level of violent force required by the federal force clause.

The Court agreed, finding that Massachusetts assault can be committed by an offensive touching and that the carjacking statute’s additional elements did not necessarily require violent physical force. Although the case arose in the criminal sentencing context, the categorical analysis may be useful to immigration practitioners assessing Massachusetts carjacking convictions in removal proceedings.

The full text of United States v. Pimental can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1910P-01A.pdf

First Circuit Rejects Family-Based Nexus Claim Arising from Paternal Abuse

The First Circuit has denied a petition for review filed by a Salvadoran respondent who sought protection based on years of physical and verbal abuse by his father. The respondent argued that the abuse was connected to his family membership or to a proposed particular social group.

The Court found that substantial evidence supported the agency’s conclusion that the father’s abuse was motivated by domestic and financial disputes, not by a protected ground. The Court also rejected the respondent’s argument that his credible testimony excused the need for corroboration, and found that he had waived the government-protection issue before the BIA.

The full text of Vasquez-Chavez v. Blanche can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/25-1306P-01A.pdf

First Circuit Upholds Hardship Denial in Cancellation Case

The First Circuit has denied a petition for review filed by a Guatemalan father who sought cancellation of removal based on hardship to his two U.S. citizen daughters. The petitioner argued that his daughters’ anxiety, sleepwalking, and eye conditions satisfied the exceptional and extremely unusual hardship standard.

The Court found that the agency’s hardship determination was supported by the record. The medical evidence did not compel a finding of qualifying hardship, the children’s conditions appeared stable, and the petitioner’s savings undercut his financial hardship claim. The Court also noted that care was reasonably available in Guatemala.

The full text of Argueta Castillo v. Blanche can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/25-1297P-01A.pdf

First Circuit Remands Ineffective Assistance Claim After Missed BIA Briefing Deadline

The First Circuit has determined that the Board of Immigration Appeals abused its discretion in denying a motion to reopen based on ineffective assistance of counsel. The petitioner’s attorney missed the BIA briefing deadline in her appeal from the denial of adjustment of status. The BIA found that the petitioner had not complied with Lozada (though it did not specify how she failed to comply) and faulted the petitioner for not filing her brief with her motion to reopen (even the BIA had previously denied a motion for a late filed brief and returned the brief to counsel).

The Court denied the petition for review of the underlying adjustment denial, finding that it lacked jurisdiction to review the discretionary denial of relief. However, the Court granted the petition as to reopening, finding that the BIA failed to explain its Lozada ruling, failed to address a substantial prejudice argument, and failed to account for the fact that the late brief had been before the Board at several points. The case was remanded for further proceedings.

The full text of Buckley v. Blanche can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1957P-01A.pdf

BIA Vacates CAT Deferral Where Gang and Cartel Harm Was Speculative

The Board of Immigration Appeals has determined that a Mexican respondent did not establish eligibility for deferral of removal under the Convention Against Torture based on feared harm from the Sureños and the CJNG. The respondent claimed that he would be tortured because he had cooperated with U.S. authorities in 2009, but the Board found that the record did not establish a clear probability of torture.

The Board emphasized that the respondent had lived in Mexico for approximately 13 years after his cooperation without physical harm or direct contact from the feared actors, had relocated within Mexico without problems, and had not shown that any later threats or violence were connected to his cooperation beyond speculation. The Board also found that generalized evidence of cartel violence, impunity, and corruption did not establish that Mexican officials would consent to or acquiesce in the respondent's torture.

The full text of Matter of J-E-L- can be found here: https://www.justice.gov/eoir/media/1439331/dl?inline

BIA Finds Serious Nonpolitical Crime Bar Turns on Most Recent Arrival

The Board of Immigration Appeals has determined that the words "arrival" and "arrived" in the serious nonpolitical crime bars refer to a respondent's most recent arrival in the United States. The respondent, a lawful permanent resident, argued that the bar did not apply because the alleged human trafficking offense in Mexico occurred after his original admission as an LPR, even though it occurred before his most recent arrival in the United States.

The Board rejected that argument and concluded that the serious nonpolitical crime bar applied. The Board found serious reasons to believe that the respondent had committed the offense based on the Mexican arrest warrant, Interpol Red Notice, Form I-213, and the respondent's admissions. The Board also affirmed the denial of cancellation of removal as a matter of discretion and upheld the denial of CAT protection.

The full text of Matter of C-P-Y- can be found here: https://www.justice.gov/eoir/media/1439601/dl?inline