BIA Subjects Applicants for Admission to Mandatory Detention

The Board of Immigration Appeals has determined that an applicant for admission who is arrested and detained without a warrant while arriving in the United States, whether or not at a port of entry, and subsequently placed in removal proceedings is detained under section 235(b) of the Immigration and Nationality Act and is ineligible for any subsequent release on bond under section 236(a) of the INA.

“An ‘applicant for admission; is defined, in relevant part, as an alien ‘who arrives in the United States whether or not at a designated port of arrival.’ An alien, like the respondent, ‘who tries to enter the country illegally is treated as an ‘applicant for admission.’” The Board further noted that the only exception to mandatory detention of applicants for admission is parole, which suggests that anyone who meets the definition of an applicant for admission who is not detained is actually paroled in the United States. However, the parole is terminated by the service of a Notice to Appear, which in turn, permits later detention under section 235(b) of the non-citizen.

The full text of Matter of Q. Li is found here:

https://www.justice.gov/eoir/media/1400431/dl?inline

BIA Addresses Role of State Court Bail Decision in Immigration Bond Determination

The Board of Immigration Appeals has determined that an Immigration Judge may consider a State court’s decision as to dangerousness and the amount of bail that was set in criminal proceedings, but that the Immigration Judge does not owe a State court custody order deference in immigration bond proceedings. “The legal standards for bail in State court may be different than in Immigration Court and there may be a variety of reasons why an Immigration Judge may or should reach a different determination than a State court judge. It is for the Immigration Judge to make his or her own determination as to dangerousness under the custody redetermination provisions of the INA and applicable precedent.”

The full text of Matter of Choc-Tut can be found here:

https://www.justice.gov/d9/2025-05/4092.pdf

BIA Rules on Sufficiency of E-Service of Briefing Deadline

The Board of Immigration Appeals has concluded that electronic notification of a briefing schedule sent to the email address of record is sufficient notice in a case eligible for electronic filing, regardless of whether an alien’s attorney or accredited representative opens the email or accesses the document via the ECAS Case Portal. “As with documents served through the mail, a rebuttable presumption of delivery applies when a party has been sent electronic notification of a briefing schedule through the procedures provided for in the ECAS regulations, but this presumption is weaker than the presumption that applies to documents sent by certified mail because electronic service through ECAS does not involve the use of a signed receipt or other affirmative evidence of delivery.“

The full text of Matter of F-B-G-M & J-E-M-G- can be found here:

https://www.justice.gov/eoir/media/1400301/dl?inline

BIA Addresses Government Acquiescence to Torture

The Board of Immigration Appeals has determined the acquiescence standard for CAT protection differs from the unable-or-unwilling standard for asylum and withholding of removal; the potential for private actor violence coupled with a speculation that police cannot or will not help is insufficient to prove acquiescence.

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

https://www.justice.gov/eoir/media/1400351/dl?inline

BIA Reverses CAT Grant to Former Gang Member

The Board of Immigration Appeals has reversed a grant of deferral of removal under the Convention Against Torture to a Salvadoran former gang member. While acknowledging that perceived gang members are subject to widespread arrest in El Salvador, the Board stated that, “[t]he evidence the Immigration Judge relied upon does not evaluate whether there are characteristics or circumstances that make certain classes of detainees, such as deportees from the United States, any more or less likely to be victims of torture. Further, the applicant has not shown that the majority of current or former gang members detained in El Salvador are likely to suffer harm satisfying the legal definition of torture, such that he would need to show nothing more than gang affiliation and a likelihood of detention to meet his burden of proof.”

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

https://www.justice.gov/eoir/media/1397466/dl?inline

BIA Addresses Asylum Claim Based on Past Status

The Board of Immigration Appeals has affirmed the denial of asylum to a former police officer, finding that the majority of the harm he experienced took place while he was a police officer, and thus, was not related to his status as a “former” officer.

“The respondent has not established that the FARC has any desire to punish or overcome his status as a former police officer, or any animus toward former police officers as a group. The respondent’s feared future harm is based on the physical assault and subsequent threat he received by the FARC when he was a then-serving police officer. The Immigration Judge found, and the respondent admitted, that the FARC targeted him because of his involvement in a law enforcement operation that confiscated military materials and cattle held by the rebel group and compromised their criminal enterprise—official actions that a former police officer would no longer be authorized to conduct.”

“Reprisals against former police officers as a class (for example, after a coup or revolution) may give rise to asylum eligibility. However, the respondent here established only that the FARC harmed him in the past and may harm him in the future to punish him because of official acts he took as a then-current police officer. Harm inflicted on account of specific conduct as a then-current police officer is distinct from harm inflicted on account of membership in a group of former police officers.”

“Where a particular social group is defined by ‘former’ status, Immigration Judges must ensure the persecutor’s conduct was based on a desire to overcome or animus toward the respondent’s membership in a group defined specifically by that former status, not retribution for conduct the respondent engaged in while a current member of the group.“

The full text of Matter of O-A-R-G- can be found here:

https://www.justice.gov/eoir/media/1396826/dl?inline

BIA Appeal Deadline Runs from Date of Oral Decision, not Date of Written Summary

The Board of Immigration Appeals has determined that when an Immigration Judge renders an oral decision, and later sends out a written summary of the decision, the 30-day appeal deadline runs from the date of the oral decision.

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

https://www.justice.gov/d9/2025-04/4089.pdf

BIA Determines that State Law and Ground of Removability Should be Compared at Time of Conviction

The Board of Immigration Appeals has determined that the language of a state conviction and an asserted ground of deportability (in this case, a controlled substance violation) should be compared as they were written at the time of the non-citizen’s conviction. Thus, any post-conviction revisions to the Controlled Substance Act were not relevant to whether the non-citizen was deportable.

The full text of Matter of Dor can be found here:
https://www.justice.gov/d9/2025-03/4088.pdf

BIA Finds that Declaration is not Required Component of Asylum Application

The Board of Immigration Appeals has determined that a declaration is not a required component of an asylum application, and as such, an Immigration Judge may not deem an asylum application abandoned for failure to file a declaration.

“This does not mean that Immigration Judges cannot require an applicant to submit a declaration, or that an applicant can disregard a directive from an Immigration Judge to file one. Immigration Judges may require applicants to submit declarations in support of asylum applications, and to do so within a specified time, just as they have the authority to direct submission of briefs, evidence, and other papers, and to set and enforce deadlines for doing so. However, a declaration supplements an asylum application without forming a constituent part of it. Therefore, the remedy for failing to file one when so directed is limited to the declaration (or other supplemental document) itself. If a supplemental document is not timely filed, the opportunity to file it is waived. In some instances, the failure to file a document may be dispositive. But the effect of an absent declaration or other supplemental document goes to the merits of the application, not its completeness.”

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

https://www.justice.gov/d9/2025-03/4087_0.pdf

BIA Issues Ridiculous Decision on CA Vacatur Order

The Board of Immigration Appeals (BIA) has issued what I can only characterize as an absurd decision regarding a California vacatur order. The order cited California Penal Code sections 1016.5 and 1473.7 as the basis for the plea withdraw. Penal Code section 1016.5 is the code section that requires criminal courts to provide immigration warnings to defendants taking plea deals. I have never heard a single immigration official question that vacaturs under this code section are viable for immigration purposes. Penal Code section 1473.7, as the BIA noted, has three bases for vacatur: 1) an error resulting in a failure to meaningfully understand the immigration consequences of a plea; 2) evidence of actual innocence; and 3) a plea or sentence entered as a result of racial, ethnic, or national origin discrimination. The BIA complained that the respondent in this matter obtained an order that specified vacatur under sections 1016.5 and 1473.7, but did not specify which subsection of 1473.7. Though it acknowledged that subsection (a)(1) (failure to understand the immigration consequences) is cognizable for immigration purposes, it implied that vacaturs for actual innocence or racial discrimination might not be vacaturs due to “legal or procedural errors.” The BIA wholesale ignored the reference to section 1016.5 in the vacatur order.

It’s overall a bad decision, with very poor legal analysis. I am hopeful it will be overturned on appeal. In the meantime, lawyer friends, make sure you add that “(a)(1)” to the end of your vacatur orders.

The full text of Matter of de Jesus-Platon can be found here: https://www.justice.gov/d9/2025-02/4086_0.pdf

BIA Narrows Definition of "Single Scheme" for CIMT Deportability

The Board of Immigration Appeals (BIA) has narrowed the instances in which two crimes involving moral turpitude will be considered part of the same scheme. The BIA has said that crimes that immediately follow one another are not necessarily part of the same scheme - in this case, the non-citizen was convicted of assault with a deadly weapon and failure to render aid when he hit pedestrians with his car and kept driving. Rather, crimes will only be arising out of a single scheme if: 1) one crime is a lesser offense of the other; 2) he defendant performs a single act that concurrently harms multiple victims in essentially the same way (i.e., robbing multiple people at once); or 3) are acts that occur within a comparatively short time of each other, involve the same parties, and the first act or acts are committed for the purpose of making possible the specific criminal objective accomplished by the last of the criminal acts (i.e., assaulting a guard to commit a larceny).

The full text of Matter of Baeza-Galindo can be found here: https://www.justice.gov/d9/2025-02/4085.pdf

BIA Holds Attorney Responsible for Missing Electronic Notice that went to Spam

The Board of Immigration Appeals has determined that an attorney is at fault for missing a briefing schedule that was in her spam folder.

“The respondents argue that the Board’s prior decision rests on the factually incorrect premise that they were granted the opportunity to submit a brief or statement in support of the appeal. Specifically, the respondents argue that they expected the briefing schedule to be sent in paper form as the Notice of Appeal was filed in paper form and the appeal receipt notice from the Board was sent in paper form. While the respondents acknowledge that their counsel was served electronically with the briefing schedule, they assert that notice of the briefing schedule was delivered to their counsel’s spam folder and was not seen until after the Board dismissed the appeal. They argue reconsideration is warranted because they did not receive constructive or actual notice that their appeal had become an electronic record of proceedings, and they were operating under the expectation that all future correspondence from the Board would be in paper form.”

“We are not persuaded by the respondents’ claim that they were not provided actual or constructive notice that their case was electronic before the Board. On December 13, 2021, while the respondents were in removal proceedings before the Immigration Judge, EOIR announced through the issuance of a final rule that effective February 11, 2022, electronic filing would be mandatory before the Immigration Judge and the Board for cases eligible for electronic filing. See 86 Fed. Reg. at 70708, 70720–22. The instant case is a case eligible for electronic filing because it has an electronic record of proceedings. See 8 C.F.R. § 1001.1(cc) (2025). More importantly, the administrative record reflects that the case was eligible for electronic filing before the Immigration Judge and the respondents, represented by the same law firm below, both filed documents electronically and received electronic service of other EOIR-generated documents. Under these circumstances, the respondents had sufficient notice that their appeal was subject to the regulations regarding electronic service. “

The full text of Matter Arciniegas-Patino can be found here: https://www.justice.gov/d9/2025-01/4084.pdf

BIA Applies Circumstance-Specific Approach to Money Laundering Offense

The Board of Immigration Appeals has determined that for the purpose of assessing whether an offense constitutes a money laundering aggravated felony, the circumstance-specific appproach applies to the requirement that the “amount of the funds exceeded $10,000.”

The full text of Matter of Dominguez Reyes can be found here:

https://www.justice.gov/d9/2024-12/4083.pdf

BIA Applies Matter of Fernandes Retroactively

The Board of Immigration Appeals has determined that its requirement that a respondent object to an incomplete Notice to Appear before the close of pleadings is not a new rule, and as such, the decision in Matter of Fernandes applies retroactively.

The full text of Matter of Larios-Gutierrez de Pablo and Matter Pablo-Larios can be found here:

https://www.justice.gov/d9/2024-11/4082.pdf

BIA Finds Sentencing Enhancement is an Element of the Offense

The Board of Immigration Appeals has determined that a California sentencing enhancement adds an element to the underlying offense. The Board noted California State law requires sentence-enhancing elements be charged in the information and found beyond a reasonable doubt by a jury.

“Accordingly, the respondent’s enhanced conviction under sections 191.5(b) and 20001(c) requires proof of the following elements: (1) the defendant drove a vehicle under the influence of drugs or alcohol in violation of the California Vehicle Code; (2) while driving under the influence, the driver also committed another infraction or an otherwise lawful act that might cause death; (3) the infraction or other act was committed in a negligent manner; (4) the negligent conduct caused the death of another person; (5) the driver knew that he or she had been involved in an accident that injured another person or knew from the nature of the accident that it was probable that another person was injured; and (6) the driver willfully fled the scene of the accident.'“

“The respondent’s compound conviction contains three mentes reae: (1) a negligence mens rea originating from section 191.5(b) for the actus reus of the driving violation; (2) a knowing mens rea originating from section 20001(c) for knowing that a person was injured; and (3) a willful mens rea for the actus rea of leaving the scene of the accident.” “The respondent does not contest the presence of a knowing mens rea in his enhanced conviction, but he argues that the mens rea of fleeing the scene cannot be applied to the conduct of the base offense of vehicular manslaughter while intoxicated because they are two discrete acts, each with a separate and distinct mens rea. He further argues that, like in Quintero-Cisneros, section 20001(c) supplies a culpable mental state to the respondent’s crime, but unlike in Quintero-Cisneros, section 20001(c) does not explicitly inject the knowing or willful mens rea into to the base offense of vehicular manslaughter; rather, the knowing or willful mens rea is tied to the separate and subsequent actus reus of fleeing the scene.”

“We are not convinced that Quintero-Cisneros provides for this distinction. The Ninth Circuit emphasized that because the sentencing enhancement in that case was an element, it was considered part of the offense of conviction and the combined offense must be compared to the generic definition under the categorical approach. Although the sentencing enhancement in that case differs from section 20001(c) because it modified the motivation with which the defendant committed the base offense, nothing in the Ninth Circuit’s analysis suggests that a sentencing enhancement that joins a further act and a mental state to the base offense would have been analyzed differently. Moreover, at the time of the negligent act resulting in an accident, the knowledge that the respondent had been involved in an injury accident inures, informing the decision to flee. The respondent has not identified any Ninth Circuit case law indicating that the elements of section 20001(c) must be analyzed separately from the elements of the respondent’s underlying conviction.”

“Therefore, the enhanced conviction contains a culpable mental state, and the remaining question is whether, in the context of the respondent’s conviction, the actus reus of fleeing the scene after having caused the death of another as a result of a negligent act while driving under the influence constitutes reprehensible conduct.” “We agree with DHS that knowingly and willfully fleeing the scene after being involved in an accident causing injury to another person is inherently reprehensible conduct.”

The decision drew a detailed dissent.

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

https://www.justice.gov/d9/2024-11/4081.pdf

BIA Overrules its Precedent Assuming that Theft Statute Includes Intent to Permanently Deprive

The Board of Immigration Appeals has overruled its decision in Matter of Jurado, which assumed that retail theft in Pennsylvania inherently includes an intent to permanently deprive, finding it inconsistent with the categorical approach outlined by the Supreme Court in Mathis v. United States. The Board then concluded that Pennsylvania retail theft convictions criminalize less than permanent takings, and thus, under pre-Diaz LIzarraga precedent, they do not constitute crimes involving moral turpitude.

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

https://www.justice.gov/d9/2024-09/4080.pdf

BIA Prescribes Remedy for Putative NTA

The Board of Immigration Appeals has determined that Homeland Security can “cure” a defective Notice to Appear (NTA) by moving the Immigration Judge to make written amendments to the NTA by adding the date and time of a future hearing.

The full text of Matter of R-T-P- can be found here:

https://www.justice.gov/d9/2024-09/4079.pdf

BIA Determines that Attempt Crimes fall within Definition of Crimes of Child Abuse

The Board of Immigration Appeals has determined that attempt crimes can render a non-citizen deportable under section 237(a)(2)(E) of the INA, even though the statute makes no mention of attempted crimes of child abuse.

The full text of Matter of D. Rodriguez can be found here:

https://www.justice.gov/d9/2024-08/4078.pdf

BIA Confirms that Rape is Torture

The Board of Immigration Appeals has confirmed that rape is a torture and is not a lawful sanction. “Rape clearly rises to the level of torture. It is an extreme form of cruel and inhuman treatment’ that causes severe pain or suffering and is therefore mistreatment sufficiently severe to qualify for protection under the CAT where the other elements are established. As the Immigration Judge noted, torture does not include pain or suffering arising from lawful sanctions. However, a lawful sanction must be judicially imposed or otherwise authorized by law. While incarceration is a lawful sanction, rape by fellow inmates is not. Additionally, a lawful sanction cannot ‘defeat the object and purpose of the Convention Against Torture to prohibit torture. Thus, rape is sufficiently severe to constitute torture and can never be a lawful sanction under the CAT.”

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

https://www.justice.gov/d9/2024-06/4077.pdf

BIA Discusses Intersection of Venue, Choice of Law, and Administrative Control Court

The Board of Immigration Appeals has stated that choice of law is dependent upon venue in Immigration Court proceedings, and therefore, the controlling circuit law is not affected by a change in the administrative control court and will only change upon the granting of a motion to change venue.

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

https://www.justice.gov/d9/2024-05/4076.pdf