BIA Vacates Bond Grant Based on Speculative Eligibility for Future Relief

The Board of Immigration Appeals has sustained DHS's appeal from a $7,500 bond grant to a Mexican respondent who overstayed a visitor visa, holding that the immigration judge improperly relied on speculative eligibility for asylum, cancellation of removal, and adjustment of status to offset flight risk.

The Board held that flight risk encompasses not just whether a respondent will appear at hearings but whether he will comply with an eventual removal order, and that an alien's incentive to prolong proceedings by filing for relief does not itself show he will comply with an adverse final order. Because the immigration judge's findings that the respondent was merely "potentially" eligible for relief were unsupported by the record, the Board vacated the bond grant and remanded for further fact-finding.

The full text of Matter of A-L-S- can be found here: https://www.justice.gov/eoir/media/1454391/dl?inline

BIA Holds Paying a Smuggler to Bring a Child to the Border Bars Good Moral Character

The Board of Immigration Appeals has dismissed the appeal of a Guatemalan respondent found ineligible for cancellation of removal after he paid a smuggler to transport his 14-year-old son from Guatemala to the U.S.-Mexico border to reunite the family, even though the son ultimately sought asylum after arrival.

The Board held that the alien-smuggling ground of inadmissibility applies to assisting an alien "to enter or to try to enter" the United States regardless of whether the smuggled person is later admitted or applies for asylum, and that the respondent's unsupported claim he intended only lawful entry did not overcome evidence that his son had no lawful basis to enter and was taken through the desert. The Board held this triggered the statutory bar to good moral character, making the respondent ineligible for cancellation of removal.

The full text of Matter of L-L-R- can be found here: https://www.justice.gov/eoir/media/1455106/dl?inline

BIA Holds Flight Risk Includes Likelihood of Success in Defending Against Removal

The Board of Immigration Appeals has dismissed a respondent's appeal from denial of bond, upholding the immigration judge's determination that he posed a flight risk that no bond amount could mitigate given evidence of inconsistent statements to USCIS and possible involvement in human rights violations in Afghanistan.

The Board held that a USCIS denial of an adjustment application was properly admitted as probative of flight risk despite hearsay objections, since immigration proceedings apply only a fundamental-fairness standard to evidence, and that potentially serious adverse evidence bearing on the respondent's prospects for relief may outweigh favorable equities like lengthy residence and family ties in assessing bond.

The full text of Matter of A-W-M-K- can be found here: https://www.justice.gov/eoir/media/1455176/dl?inline

BIA Affirms Denial of Relief Where Respondent Failed to Establish His Identity

The Board of Immigration Appeals has dismissed the appeal of a Somali asylum applicant found not credible based on inconsistencies regarding his name, nationality, clan membership, and use of a fraudulently obtained Kenyan passport.

The Board held that identity is a threshold and critical element of any asylum claim, and that the immigration judge did not clearly err in finding the respondent failed to establish his identity given multiple unresolved discrepancies in his testimony and documentary evidence. Because the same discredited testimony was the only evidence supporting the CAT claim, the Board upheld the denial of that relief as well.

The full text of Matter of I-S-M- can be found here: https://www.justice.gov/eoir/media/1455271/dl?inline

BIA Holds a Minor's Age Does Not Automatically Transform Harm Into Persecution

The Board of Immigration Appeals has sustained DHS's appeal from a grant of withholding of removal to a Russian respondent who was struck by police as a 17-year-old, holding that the immigration judge erred by treating the respondent's status as a minor as itself sufficient to elevate the harm to persecution.

The Board held that age is one relevant factor in the cumulative persecution analysis but does not create a categorical rule, and that the calibration warranted here was slight given the respondent was only months from turning 18. The Board also held that a pattern-or-practice theory of persecution requires an objective, not subjective, showing of a clear probability of harm, and remanded for the immigration judge to address nexus and reconsider the claim, including CAT protection, under the correct standards.

The full text of Matter of I-U-V- can be found here: https://www.justice.gov/eoir/media/1455276/dl?inline

BIA Holds Immigration Officer's Delegated Authority Properly Authenticated DHS Records

The Board of Immigration Appeals has sustained DHS's appeal from an order terminating proceedings after an immigration judge excluded a Form I-213 and Form I-94 offered to prove a lawful permanent resident's alienage, finding the certifying USCIS official lacked authority to authenticate the records.

The Board held that a Form G-24 certification signed by a District Records Manager properly authenticates such documents where an accompanying delegation memorandum shows the Secretary of Homeland Security's statutory custodial authority was validly conferred on that official, and remanded for the immigration judge to consider the documents in assessing removability.

The full text of Matter of Momplaisir can be found here: https://www.justice.gov/eoir/media/1455811/dl?inline

BIA Remands Where Credibility and Internal Relocation Findings Were Insufficiently Explained

The Board of Immigration Appeals has sustained DHS's appeal from a grant of asylum to a Nicaraguan respondent, holding that the immigration judge's favorable credibility finding did not adequately address several apparent inconsistencies in the respondent's testimony and corroborating evidence, including conflicting accounts of a 2018 protest and unresolved questions about the availability of arrest warrants.

The Board also held that the immigration judge failed to sufficiently analyze whether the respondent's several years living elsewhere in Nicaragua without incident rebutted the presumption of future persecution through internal relocation, and remanded for the agency to reassess credibility, corroboration, and relocation under the correct framework.

The full text of Matter of H-I-A-H- can be found here: https://www.justice.gov/eoir/media/1456346/dl?inline

BIA Requires Content of Bar Complaint, Not Just Proof of Filing, for Ineffective Assistance Claims

On remand from the Tenth Circuit, the Board of Immigration Appeals has clarified what a motion to reopen based on ineffective assistance of counsel must include to satisfy Matter of Lozada's requirement that the motion reflect whether a bar complaint has been filed. The respondents, a Honduran mother and daughter, had submitted proof that a complaint was mailed to disciplinary authorities but not the contents of the complaint itself.

The Board held that both the substance of the bar complaint and proof of its filing are required, agreeing with the Eighth Circuit's reasoning in Irias v. Bondi that merely describing the complaint's content in the motion, or proving only that something was mailed, is insufficient, particularly where new counsel works at the same firm as the attorney accused of ineffectiveness. The Board gave the respondents thirty days to submit the actual bar complaint or have their motion automatically denied.

The full text of Matter of L-R-M-C- & V-A-M-M- can be found here: https://www.justice.gov/eoir/media/1452566/dl?inline

BIA Clarifies That a Parent's Choice to Leave a Child in the U.S. Does Not Alone Create Hardship

The Board of Immigration Appeals has sustained DHS's appeal from a grant of cancellation of removal to a Guatemalan father whose six-year-old U.S. citizen daughter would likely enter foster care if he were removed, since the child's mother is incapacitated and her adult half-sister cannot serve as a long-term caregiver.

The Board held that the immigration judge legally erred by finding hardship based on the respondent's choice to leave his daughter in the United States without parental care, reaffirming Matter of Ige and extending its reasoning to cancellation of removal: absent a showing that the child would suffer extreme hardship accompanying the parent abroad, the hardship of remaining behind is generally attributable to parental choice rather than removal. The Board also clarified that care by a responsible non-parent can be sufficient for a qualifying relative child, and remanded for further fact-finding on hardship, including the respondent's failure to submit an affidavit or documentation of care arrangements as required.

The full text of Matter of Lopez-Davila can be found here: https://www.justice.gov/eoir/media/1452826/dl?inline

BIA Reverses CAT Deferral Grant to Gang Informant, Finding Reliance on Generalized Country Conditions

The Board of Immigration Appeals has sustained DHS's appeal from a grant of deferral of removal under the Convention Against Torture to a Guatemalan man who feared retaliation from the Latin Kings and MS-13 after cooperating with federal law enforcement and testifying against gang members while incarcerated.

The Board held that the immigration judge clearly erred by relying almost entirely on generalized country-conditions evidence and expert testimony about corruption while overlooking the applicant's individualized circumstances, including that he had never been tortured, that the gangs' threats since his release had been vague and indirect, and that years had passed without any physical approach from gang members. The Board also found that the expert's acknowledgment that both the Guatemalan and Mexican governments have taken some action against organized crime undercut a finding of official acquiescence, and vacated the grant of CAT relief to both countries.

The full text of Matter of H-L-S-M- can be found here: https://www.justice.gov/eoir/media/1453181/dl?inline

BIA Holds "Brazilian Children" and "Abandoned Brazilian Children" Are Not Particular Social Groups

The Board of Immigration Appeals has sustained DHS's appeal from a grant of humanitarian asylum to a Brazilian man who was physically abused as a child and drugged and raped by two men, vacating the grant and remanding for consideration of his separate CAT claim.

The Board held that "Brazilian children" and "abandoned Brazilian children" are not cognizable particular social groups because they lack the required particularity, encompassing an enormous and diffuse swath of society with no defined boundaries around the term "abandoned." The Board also found clear error in the immigration judge's conclusion that the Brazilian government was unable or unwilling to control the respondent's abusers, noting that one perpetrator had been arrested in connection with other crimes and that Brazil provides services and a hotline to protect abused children, and held that without a showing of past persecution the respondent could not qualify for humanitarian asylum.

The full text of Matter of A-G-O-F- can be found here: https://www.justice.gov/eoir/media/1453426/dl?inline

BIA Denies Reopening Where Respondent Convicted of Sexual Offenses Failed to Show Requisite Hardship

The Board of Immigration Appeals has denied a motion to reopen filed by a Jamaican respondent seeking to pursue adjustment of status based on his marriage to a U.S. citizen, following approval of a family visa petition after his removal order became final.

The Board held that the respondent's convictions for sexual abuse and forcible touching might require him to show exceptional and extremely unusual hardship, rather than the ordinary extreme hardship standard, to obtain a waiver of inadmissibility, and that he failed to meet even the lower standard given that he was already detained before the marriage and identified no specific increase in hardship his wife would face from his removal. The Board also held that his substantial family equities were outweighed by the seriousness of his sexual offense convictions in the discretionary analysis, and denied reopening for lack of a realistic chance of success on the merits.

The full text of Matter of Y-S-P-T- can be found here: https://www.justice.gov/eoir/media/1453536/dl?inline

BIA Holds Immigration Judges May Draw Adverse Inferences From Invocation of the Fifth Amendment

The Board of Immigration Appeals has dismissed the appeal of a Mexican lawful permanent resident found removable for unlawfully voting in a 2012 federal election, who was also denied cancellation of removal as a matter of discretion after he invoked his Fifth Amendment privilege rather than answer questions about a prior DUI conviction and a pending DUI arrest.

The Board held that removability for unlawful voting under 18 U.S.C. § 611(a) does not require proof the respondent knew voting was unlawful, since the statute is a general intent crime, and upheld the removability finding based on the respondent's own sworn admissions. On discretion, the Board held that while a respondent has every right to invoke the privilege against self-incrimination, an immigration judge may draw reasonable adverse inferences from a refusal to provide testimony material to discretionary relief, and held that unlawful voting is a significant adverse discretionary factor given Congress's evident concern for the integrity of the electoral process.

The full text of Matter of Lopez Rico can be found here: https://www.justice.gov/eoir/media/1453751/dl?inline

BIA Holds Failure to Pay Annual Asylum Fee Dooms Asylum Claim but Not Withholding or CAT Protection

The Board of Immigration Appeals has sustained an appeal filed by a Cuban respondent whose entire application for asylum, withholding of removal, and CAT protection was deemed abandoned after she failed to pay the new annual asylum fee created by the One Big Beautiful Bill Act by the immigration judge's deadline.

The Board held that the annual asylum fee is a mandatory, non-waivable eligibility requirement, and that an immigration judge may properly pretermit or deem abandoned an asylum application for nonpayment. But the Board held that the statute's plain language, referring only to "an application for asylum," does not extend the fee requirement or its consequences to applications for statutory withholding of removal or CAT protection, notwithstanding DHS's argument that the regulatory definition of "asylum application" already encompasses those forms of relief. The Board remanded for the immigration judge to consider the respondent's withholding and CAT claims on the merits.

The full text of Matter of L-F-R- can be found here: https://www.justice.gov/eoir/media/1454066/dl?inline

BIA Holds Candor About Past Lies Does Not Alone Establish Credibility

The Board of Immigration Appeals has sustained DHS's appeal from a grant of asylum to a family from Burkina Faso, whose claim rested on the lead respondent's account of his service in the presidential security regiment. The respondent had twice denied any military service on visa applications years earlier, and the immigration judge found this indicative of a propensity for dishonesty but nonetheless deemed him credible because he was forthright in admitting he had lied.

The Board held that this reasoning was clearly erroneous, since candor about a documented history of lying to obtain immigration benefits does not, by itself, establish present credibility. The Board also found that the immigration judge did not adequately address inconsistencies undermining the respondent's explanation for the earlier falsehoods, failed to make an explicit credibility finding as to a corroborating witness who gave false testimony about a pending arrest warrant, and did not sufficiently analyze whether the documentary evidence corroborated the specific details of the claimed persecution. The case was remanded for a fuller credibility and corroboration analysis.

The full text of Matter of T-D-E- can be found here: https://www.justice.gov/eoir/media/1450076/dl?inline

BIA Holds Bond Venue Follows Detainee's Location, Not Where Removal Case Is Pending

The Board of Immigration Appeals has sustained DHS's appeal from an immigration judge's decision releasing a respondent on an $8,000 bond, after the respondent had already been transferred from Massachusetts to a detention facility in Texas before the bond hearing took place. The immigration judge in Massachusetts reasoned that venue for the bond request remained proper there because the respondent's removal case was still administratively pending in that court.

The Board held that bond proceedings are separate from removal proceedings, and that the controlling regulation ties bond venue to the respondent's place of detention, not to which immigration court is handling the underlying removal case. Because the respondent had already been transferred to Texas by the time he filed his second custody redetermination request, the Massachusetts immigration court was not the proper venue, and the Board vacated the bond decision without reaching the merits of dangerousness or flight risk.

The full text of Matter of Vizcaino Aybar can be found here: https://www.justice.gov/eoir/media/1450581/dl?inline

BIA Clarifies That Forced Conscription Claims Require Nexus to a Protected Ground

The Board of Immigration Appeals has sustained DHS's appeal from a grant of asylum to a Russian respondent who feared forced conscription into the military amid the war against Ukraine. The immigration judge found no nexus between the respondent's fear and a protected ground, but nonetheless granted asylum on the theory that conscription into an internationally condemned military is itself persecutory.

The Board held that conscription is not a standalone, sixth protected ground under the INA and clarified that the narrow exceptions recognized in Matter of A-G-, for disproportionate punishment or conscription requiring inhuman conduct, must still be tied to one of the five statutorily protected grounds. The Board found that international condemnation of the Russian military's conduct generally is insufficient; the respondent must show that he himself would necessarily be required to engage in inhuman conduct on account of a protected ground. The case was remanded for the immigration judge to consider the respondent's separate CAT claim.

The full text of Matter of R-A-N- can be found here: https://www.justice.gov/eoir/media/1451396/dl?inline

BIA Holds Oral Motion to Pretermit Provides Sufficient Notice of Intent to Remove Under Asylum Cooperative Agreement

The Board of Immigration Appeals has sustained an interlocutory appeal by DHS after an immigration judge denied its motion to pretermit asylum applications filed by a Venezuelan and Colombian family, again based on the safe third country bar under the asylum cooperative agreement with Ecuador. The immigration judge had found that DHS's oral motion to pretermit did not provide adequate notice of its intent to remove the family to Ecuador and, alternatively, that the agreement did not apply absent an implementation plan.

The Board held that an oral motion to pretermit filed at a hearing is sufficient notice of DHS's intent to remove the family under the agreement, and reaffirmed that an immigration judge lacks authority to require proof of an implementation plan, proof that the third country is willing to accept the family, or an assessment of whether the third country offers full and fair procedures. The Board also held that the immigration judge erred in declining to designate Ecuador as the country of removal once DHS indicated its intent to do so. The case was remanded for an expeditious determination of the safe third country bar.

The full text of Matter of E-A-R-M- can be found here: https://www.justice.gov/eoir/media/1451996/dl?inline

BIA Holds DHS Need Not Produce Implementation Instrument to Establish Asylum Cooperative Agreement Applies

The Board of Immigration Appeals has sustained an interlocutory appeal by DHS after an immigration judge denied its motion to pretermit asylum applications filed by a Venezuelan family, based on the safe third country bar under the asylum cooperative agreement with Ecuador. The immigration judge had concluded that DHS failed to produce a separate implementing instrument describing the operating procedures for transfers under the agreement.

The Board held that any subsequent implementation plan contemplated by the agreement is not part of the agreement itself, is not published in the Federal Register notice establishing the ACA and is therefore not a permissible basis for an immigration judge to find the agreement inapplicable. The Board vacated the immigration judge's decision and remanded for an expeditious determination of whether the safe third country bar applies.

The full text of Matter of N-E-R-S- can be found here: https://www.justice.gov/eoir/media/1452016/dl?inline

BIA Denies Reopening Where Forced-Abortion Claim Lacked Reasonably Available Corroboration

The Board of Immigration Appeals has denied a Chinese respondent’s motion to reconsider and motion to reopen after the denial of asylum and withholding of removal. The respondent claimed that she had been forced to undergo an abortion in China and argued that the agency improperly required corroboration.

The Board held that the Immigration Judge properly required corroboration of credible but unpersuasive testimony and properly found that corroborating evidence of the alleged forced abortion was reasonably available. The Board also rejected the respondent’s ineffective assistance claim, finding that counsel did not act unreasonably by relying on a certified translation of evidence submitted by prior counsel.

The full text of Matter of Y-H-L- can be found here: https://www.justice.gov/eoir/media/1446391/dl?inline