Viewing entries tagged
Board of Immigration Appeals

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BIA Finds Administrative Closure was Inappropriate for SIJS Petitioner

The Board of Immigration Appeals has determined that an Immigration Judge erred by granting administrative closure to an applicant for Special Immigrant Juvenile Status (SIJS) who did not provide prima facie evidence of eligibility. “Submitting the juvenile court order is particularly important to establishing prima facie eligibility because we otherwise have no way of knowing whether the respondent is subject to a juvenile court order that satisfies the regulatory requirements at 8 C.F.R. § 204.11(c)(1) and (d)(3) and whether a competent court or agency made the best-interest determination required by 8 C.F.R. § 204.11(c)(2)(i).”

“Moreover, even if the respondent had established eligibility for special immigrant juvenile classification, the indeterminate and likely lengthy period of time until he would be eligible to adjust status if his petition were ultimately approved by USCIS also strongly militates against administrative closure.3 The priority date for the respondent’s visa petition is April 23, 2025. As explained above, visas for special immigrant juveniles are only currently available to aliens who filed their petitions prior to July 1, 2020. Considering the extensive, nearly 5-year gap between the currently eligible priority date and the respondent’s priority date, it is not realistic to expect the respondent to become eligible for relief from removal based on his special immigrant juvenile petition within a ‘reasonably short period of time.’ Thus, we conclude that administrative closure based on the respondent’s potential eligibility for adjustment of status at some remote time in the future is inappropriate.”

The full text of Matter of Cahuec Tzalam can be found here:

https://www.justice.gov/eoir/media/1417396/dl?inline

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BIA Limits IJ Review of Asylum Cooperative Agreement

The Board of Immigration Appeals has limited an Immigration Judge’s review of the applicability of an asylum cooperative agreement (ACA). Under the regulation, an Immigration Judge is required to “determine whether under the relevant [ACA] agreement the alien should be removed to the third country, or whether the alien should be permitted to pursue asylum or other protection claims in the United States.” 8 C.F.R. § 1240.11(h)(1). If an alien is “subject to the terms of” one or more ACAs and has not demonstrated that the safe third country bar does not apply, the Immigration Judge shall order the alien “removed to the relevant third country in which the alien will be able to pursue his or her claims for asylum or protection against persecution or torture under the laws of that country.” 8 C.F.R. § 1240.11(h)(4).

“In applying the safe third country bar, the authority delegated to Immigration Judges by the regulation is limited to determining whether any of the conditions discussed in 8 C.F.R. § 1240.11(h)(2) apply so as to render the relevant ACA inapplicable to the particular respondent. Immigration Judges do not have authority to make the determination required under section 208(a)(2)(A) of the INA as to whether ‘the alien would have access to a full and fair procedure’ in the third country because the Attorney General has expressly reserved that statutory authority. Similarly, Immigration Judges lack authority to determine whether it is in the public interest for an alien subject to an ACA to pursue asylum in the United States because section 208(a)(2)(A) of the INA, 8 U.S.C. § 1158(a)(2)(A), ‘reserves to the Secretary [of Homeland Security] or [her] delegates the determination whether it is in the public interest for the alien to receive asylum in the United States.’” “Immigration Judges may not require DHS to demonstrate that an ACA country of removal is willing to accept a respondent who is subject to the terms of an ACA.”

“[I]f a respondent subject to an ACA claims a fear of persecution or torture in a relevant third country, but has no substantial connection to that country, an Immigration Judge should typically be able to resolve the applicability of the safe third country bar without conducting a full evidentiary hearing.”

What the Board didn’t discuss is the fact that Honduras has only agreed to accept 10 people per month under the ACA. https://www.state.gov/wp-content/uploads/2025/09/25-625-Honduras-Migration-and-Refugees-JIP.pdf. Thus, requiring IJs to order asylum applicants removed to Honduras without any proof that they will be accepted by Honduras, effectively reads the right to apply for asylum out of the statute.

The full text of Matter of C-I-M-G- & L-V-S-G- can be found here:

https://www.justice.gov/eoir/media/1416811/dl?inline

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BIA Says IJs are not Required to Accept Stipulations

The Board of Immigration Appeals has determined that immigration judges are not required to accept stipulations by the parties. “Immigration Judges have broad discretion in conducting immigration proceedings and admitting and considering evidence. While an Immigration Judge may accept the parties’ stipulations in lieu of evidence, he or she is not required to do so. Nor is an Immigration Judge bound by parties’ stipulations as to the legal issue of whether a respondent has satisfied his or her burden of proof for relief or protection because legal stipulations cannot be binding.”

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

https://www.justice.gov/eoir/media/1415986/dl?inline

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BIA Rejects Perceived Group Membership as a Basis for Asylum

The Board of Immigration Appeals has rejected the concept of perceived membership as a particular social group, finding that there were be no circumstances in which the perceived members of a group would be socially distinct from the actual members of the group. “[P]erceived membership in a group cannot itself be a cognizable particular social group. Rather, the underlying group is the true particular social group, and where that underlying group as defined is not cognizable, the perceived group is also not cognizable.”

The full text of Matter of L-A-L-T- can be found here:

https://www.justice.gov/eoir/media/1415356/dl?inline

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BIA Reverses Bond Grant to Non-Citizen Recently Convicted of Statutory Rape

The Board of Immigration Appeals reversed the grant of bond to a non-citizen recently convicted of statutory rape and oral copulation with a 14-year-old girl. “The respondent’s behavior reflects a willingness and ability to manipulate vulnerable persons into engaging in unlawful conduct to meet his own desires and to do so at great harm to them.”

The full text of Matter of Cotrufo can be found here:

https://www.justice.gov/eoir/media/1415166/dl?inline

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BIA Overturns CAT Grant to Uzbek National

The Board of Immigration Appeals has overturned a grant of protection under the Convention Against Torture to an Uzbek national despite evidence that he is likely to be detained upon arrival in Uzbekistan, finding that evidence of “ill treatment” and anecdotes of torture in Uzbek prisons were insufficient to show a clear probability of torture.

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

https://www.justice.gov/eoir/media/1415011/dl?inline

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BIA Finds that IJ Exceeded his Authority in Discretionary Grant of LPR Cancellation of Removal

The Board of Immigration Appeals has determined that an Immigration Judge exceeded his authority when he determined that the two children who accused the respondent of the indecent acts were actually not credible. The Board then overturned the discretionary grant, starting that the respondent had not admitted his wrongdoing and thus, had not established rehabilitation.

The full text of Matter of Garcia-Flores can be found here:

https://www.justice.gov/eoir/media/1413661/dl?inline

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BIA Finds IJs Lack Jurisdiction to Grant Bond to Non-Citizens who are not Admitted

The Board of Immigration Appeals has determined that Immigration Judges lack jurisdiction to consider the bond request of a non-citizen who entered the United States without admission and who has been present in the United States for at least two years. “Under section 235, Congress created three different categories of applicants for admission. The first two categories are covered by section 235(b)(1)(A) of the INA, 8 U.S.C. § 1225(b)(1)(A). They include: (1) arriving aliens inadmissible under section 212(a)(6)(C) or 212(a)(7), 8 U.S.C. § 1182(a)(6)(C), (a)(7), and (2) aliens not admitted or paroled into the United States who are inadmissible under section 212(a)(6)(C) or 212(a)(7), 8 U.S.C. § 1182(a)(6)(C), (a)(7), and “who ha[ve] not affirmatively shown, to the satisfaction of an immigration officer, that [they] ha[ve] been physically present in the United States continuously for the 2-year period immediately prior to the date of determination of inadmissibility.” “The third category of applicants for admission subject to the inspection, detention, and removal procedures set forth in section 235 of the INA, 8 U.S.C. § 1225, are those aliens who are seeking admission and who an immigration officer has determined are ‘not clearly and beyond a doubt entitled to be admitted.’ INA § 235(b)(2)(A), 8 U.S.C. § 1225(b)(2)(A). This category is a ‘catchall provision that applies to all applicants for admission not covered by [section 235(b)(1)].’”

“The respondent provides no legal authority for the proposition that after some undefined period of time residing in the interior of the United States without lawful status, the INA provides that an applicant for admission is no longer ‘seeking admission,’ and has somehow converted to a status that renders him or her eligible for a bond hearing under section 236(a) of the INA, 8 U.S.C.A. § 1226(a).”

“Aliens, like the respondent, who surreptitiously cross into the United States remain applicants for admission until and unless they are lawfully inspected and admitted by an immigration officer. Remaining in the United States for a lengthy period of time following entry without inspection, by itself, does not constitute an ‘admission.’ Likewise, being arrested pursuant to a warrant and placed into removal proceedings does not constitute an admission. Therefore, just as Immigration Judges have no authority to redetermine the custody of arriving aliens who present themselves at a port of entry, they likewise have no authority to redetermine the custody conditions of an alien who crossed the border unlawfully without inspection, even if that alien has avoided apprehension for more than 2 years.”

The full text of Matter of Yajure Hurtado can be found here:

https://www.justice.gov/eoir/media/1413311/dl?inline

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BIA Denies Bond due to Absence of Letter from Sponsor

The Board of Immigration Appeals determined that the Department of Homeland Security met its burden of proving a non-citizen was a flight risk because the non-citizen submitted contradictory proof of the residence of his sponsor and did not submit a statement from the sponsor. “The Immigration Judge also clearly erred in finding that the proposed sponsor has a fixed address in Hallandale, Florida. The documents provide three different addresses for the sponsor, two in Hallandale, Florida, and another in Hopatcong, New Jersey. The documentation for a residential lease in Hallandale, Florida, provides a different address than the bill for electric services in the same location. There is no explanation from either the respondent or the sponsor as to which of the multiple addresses, if any, is Mr. G-’s fixed address, and whether the respondent will be residing with him at the address upon release from custody. Further complicating this factual analysis is the submission of a different address in New Jersey, without clarification by the respondent or Mr. G-. Thus, the Immigration Judge clearly erred in finding that the sponsorship documents reflected that the sponsor has a fixed address in Hallandale, Florida, and that the respondent would reside with him there.”

The full text of Matter of Dobrotvorskii can be found here:

https://www.justice.gov/eoir/media/1413266/dl?inline

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BIA Discourages Continuances

The Board of Immigration Appeals has determined that an immigration judge generally should not continue an individual hearing based on a respondent’s speculative assertion that he or she may be eligible for a new form of relief from removal not previously raised. In this case, the request for a continuance was not accompanied by an application or proof of prima facie evidence for the relief sought (VAWA cancellation of removal).

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

https://www.justice.gov/eoir/media/1412281/dl?inline

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BIA Construes Realistic Probability Test

The Board of Immigration Appeals has determined that “[a] statute’s textual overbreadth does not always unambiguously establish that there is a realistic probability that the State would apply the statute to conduct falling outside the Federal definition of an offense.” “Thus, we conclude that once DHS establishes the existence of a State drug conviction by clear and convincing evidence, a respondent who argues that a State conviction is categorically overbroad based on differing substance or isomer definitions has the burden of demonstrating a realistic probability that the State prosecutes substances falling outside the Federal definition of a controlled substance.”

This decision turns burdens of proof on their head, forcing a lawful permanent to prove he’s not deportable, rather than forcing the Department of Homeland Security to prove he is.

The full text of Matter of Felix-Figueroa can be found here:

https://www.justice.gov/eoir/media/1409436/dl?inline

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BIA Presumes Non-Detained Respondent with Private Attorney can Pay Appeal Filing Fees

The Board of Immigration Appeals has created a presumption that a non-detained individual who has retained private counsel can afford to pay the filing fees for an appeal. In addition, the Board determined that a fee waiver with zeros in the income and expenses columns is presumptively invalid without further evidence or explanation.

The full text of Matter of Garcia Martinez can be found here:

https://www.justice.gov/eoir/media/1410586/dl?inline

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BIA Overturns Hardship Finding for Cancellation Applicant whose Children Suffer Developmental Delays and Autism

The Board of Immigration Appeals has overturned an exceptional and extremely unusual hardship finding involving a child with autism and anxiety, two other children with developmental delays, and their mother. “While the respondent’s daughter has been diagnosed with autism and an anxiety disorder and his sons have been diagnosed with developmental delays, the conditions of all three United States citizen children are presently being managed by individualized education programs or early intervention services. As all three children would continue to remain in the United States with the respondent’s United States citizen wife upon the respondent’s removal, they would continue to receive medical care through state Medicaid, as well as specialized educational support in the State of New Jersey.”

This decision is disgraceful, and can only be interpreted as an attempt to interpret the hardship requirement for cancellation in a manner that is impossible to ever meet. Even under deferential standards, I cannot imagine this withstanding federal court review (which thankfully, we can now get on hardship determinations).

The full text of Matter of Buri Mora can be found here:

https://www.justice.gov/eoir/media/1411661/dl?inline

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