First Circuit Largely Upholds Nationwide Class Relief Requiring Notice Before Third-Country Removals

The First Circuit has largely affirmed a final judgment obtained by a certified class of noncitizens with final removal orders, holding that DHS's policy of removing class members to "third countries" not named in their removal orders or prior proceedings violates the Administrative Procedure Act because it fails to provide effective notice and a meaningful opportunity to raise fear-of-persecution and fear-of-torture claims regarding the new destination. The class had challenged DHS guidance that permitted removal to a third country with no notice at all where the State Department deemed the receiving country's diplomatic assurances credible, and with as little as twenty-four hours' notice otherwise.

The Court held that the statutory and regulatory scheme governing withholding of removal and CAT protection implicitly requires effective notice and a meaningful opportunity to be heard before any third-country removal, reasoning that the right to avoid removal to a country where one fears persecution or torture means little without advance notice of the actual destination, and invoking the canon of constitutional avoidance to reach that reading. The Court rejected each of DHS's jurisdictional arguments, holding that neither § 1252(g)'s bar on review of decisions to "execute removal orders" nor § 1252(b)(9)'s claim-channeling provision applied, since the class was not challenging its removability or the execution of its removal orders but rather DHS's failure to follow required procedures when redirecting removal to an unnamed third country. The Court also held that its own precedent in Brito v. Garland forecloses any argument that § 1252(f)(1)'s bar on class-wide injunctions extends to declaratory relief or APA vacatur, and it upheld the district court's Rule 23(b)(2) class certification. The Court did, however, vacate the portion of the judgment requiring DHS to first attempt removal to a class member's designated country or country of citizenship before resorting to a third country, holding that none of the four named plaintiffs had standing to raise that particular "sequencing" claim.

The full text of D.V.D. v. U.S. Department of Homeland Security can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/26-1212P-01A.pdf

First Circuit Denies Cancellation of Removal Where Child's Asthma Was Treatable

The First Circuit has denied a petition for review filed by a Salvadoran father seeking cancellation of removal based on hardship to his two U.S. citizen children, one of whom suffers from asthma, holding that the immigration judge properly applied the BIA's hardship factors and that her underlying factual findings about the severity and treatability of the child's condition were unreviewable.

The Court held that it lacked jurisdiction to revisit the judge's factual findings that the son's asthma was under control and that the father failed to show he could not obtain or afford treatment in El Salvador, but retained jurisdiction to confirm the judge had not simply ignored the medical evidence. Because the judge expressly discussed the son's medications, hospitalizations, and the family's finances before concluding that the cumulative hardship fell short of the exceptional and extremely unusual standard, the Court found no legal error and denied the petition.

The full text of Espinoza Benitez v. Blanche can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/25-2029P-01A.pdf

First Circuit Holds Family's Immediate Members Resisting Gangs Is Not a Cognizable Social Group

The First Circuit has dismissed in part and denied in part a petition for review filed by a Jamaican man whose brother's work as a police officer investigating gangs allegedly made the family a target, holding that it lacks jurisdiction over the agency's discretionary denials of adjustment of status and untimely asylum, and separately upholding the denial of withholding of removal.

The Court held that the petitioner's proposed social group of the immediate family of police officers who have resisted corruption and gang activity lacked the required particularity, since the concept of "resisting" corruption is too amorphous to delineate group membership, drawing on the Court's rejection of similarly vague resistance-based groups in prior cases. The Court also upheld the agency's adverse credibility finding based on multiple inconsistencies in the petitioner's and his brother's testimony, and rejected his argument that the agency applied the wrong circuit's law, since the immigration judge had analyzed the claims under First Circuit precedent in the alternative.

The full text of Bromfield v. Blanche can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/25-1556P-01A.pdf

First Circuit Denies Asylum Where Family Was Only Indirectly Harmed at a Relative's House

The First Circuit has denied petitions for review filed by a Brazilian family who were denied asylum after military police repeatedly harassed and threatened relatives at the maternal grandmother's house, which the family visited but did not live in, because the mother's brother was a wanted gang leader who had once lived there.

The Court held that substantial evidence supported the agency's conclusion that the petitioners themselves were never physically harmed and that the harm inflicted on their relatives was only limited and indirect, since the police appeared to be targeting the grandmother's house as the suspected locus of the brother's criminal activity rather than the family as such. The Court also upheld the agency's rejection of the petitioners' argument that they were similarly situated to an aunt who was separately granted asylum, since that aunt had been physically arrested and lived at the targeted house, unlike the petitioners.

The full text of Pereira Alves v. Blanche can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1686P-01A.pdf

First Circuit Holds Witness-Tampering Conviction Is Not an Aggravated Felony Obstruction Offense

The First Circuit has granted a petition for review filed by a Liberian citizen and former Sierra Leonean child soldier found removable for a New Hampshire witness-retaliation conviction, holding that the offense does not qualify as an aggravated felony "relating to obstruction of justice" because it can be committed through pure revenge without any intent to interfere with a legal proceeding.

The Court held that the generic federal offense requires a specific intent to interfere with the legal process, consistent with the Supreme Court's reasoning in Pugin v. Garland, and that New Hampshire's highest court has upheld convictions under the statute based solely on a desire for personal payback. Because the least culpable conduct covered by the New Hampshire statute sweeps more broadly than the generic offense, the Court vacated the BIA's removability finding and did not reach the petitioner's separate challenge to the agency's reversal of his grant of CAT deferral.

The full text of Bangs v. Blanche can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/25-1820P-01A.pdf

First Circuit Holds Unadmitted Noncitizens Present in the Interior Are Not "Seeking Admission"

The First Circuit has affirmed a district court order requiring bond hearings for a certified class of noncitizens detained in Massachusetts after entering the United States without inspection, holding that such individuals are governed by the discretionary detention authority in 8 U.S.C. § 1226(a) rather than the mandatory, bondless detention provision in § 1225(b)(2)(A).

The Court held that "seeking admission" in § 1225(b)(2)(A) means seeking lawful entry, and that a noncitizen who has already entered the country unlawfully years earlier is not seeking such entry, regardless of being deemed an "applicant for admission" under the statute's separate deeming provision. Joining six other circuits and deepening a split with the Fifth and Eighth Circuits, the Court rejected the government's argument that the deeming provision extends to "seeking admission" as well, and found further support in the statutory redundancies the government's reading would create with § 1226(c)'s recently expanded mandatory-detention provisions.

The full text of Guerrero Orellana v. Moniz can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/25-2152P-01A.pdf

First Circuit Grants Partial Stay of Order Blocking USCIS Benefits Re-Review Policy

The First Circuit has granted in part the government's request to stay a district court order that had blocked three USCIS policies challenged by refugee resettlement and labor organizations under the Administrative Procedure Act, limiting the stay to the agency's "Comprehensive Re-Review Policy" directing a re-review of approved benefit requests for nationals of certain countries who entered on or after January 20, 2021.

Applying the traditional four-factor stay standard, the Court found the government had not met its burden as to the other two challenged policies, allowing the district court's stay of those policies to remain in effect while the appeal proceeds.

The full text of Dorcas International Institute of Rhode Island v. USCIS can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/26-1703P-01A.pdf

First Circuit Denies Asylum Where Robberies and Family Threats Lacked Nexus to a Protected Ground

The First Circuit has denied a petition for review filed by a Salvadoran woman who was robbed by gang members on three occasions and later threatened by an MS-13-affiliated relative after she urged her sister to report him to police for sexually assaulting her niece.

The Court held that substantial evidence supported the agency's finding that the robberies were motivated by ordinary financial gain rather than any protected characteristic, and that the relative's threats stemmed from personal revenge for the police report rather than the petitioner's family membership itself, particularly since other family members in El Salvador were left unharmed. Because the petitioner could not establish the required nexus for either asylum or withholding of removal, the Court did not need to reach her timeliness argument or her claim for humanitarian asylum.

The full text of Monzon Guzman v. Blanche can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/25-1351P-01A.pdf

First Circuit Grants Reopening Where BIA Misconstrued Sua Sponte Motion as Statutory

The First Circuit has granted a petition for review filed by a Cambodian former lawful permanent resident whose second motion to reopen was denied after a Rhode Island court vacated his 1996 drug conviction for a Rule 11 plea-colloquy defect, holding that the BIA mistakenly analyzed the motion under the statutory time-and-number bar rather than its own sua sponte reopening authority.

The Court held that the BIA's invocation of equitable tolling and the ninety-day statutory deadline revealed that it had misunderstood the petitioner's request, since sua sponte motions are not subject to any time bar and may be granted "at any time." The Court also held that the BIA erred on the merits by concluding the vacatur was not based on a procedural defect, since the state court's order expressly cited a Rule 11 violation implicating due process. The Court remanded for the BIA to exercise its sua sponte discretion under the correct legal framework.

The full text of Kim v. Blanche can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-2042P-01A.pdf

First Circuit Denies Asylum Where Robberies and Family Threats Lacked Nexus to a Protected Ground

The First Circuit has denied a petition for review filed by a Salvadoran woman who was robbed by gang members on three occasions and later threatened by an MS-13-affiliated relative after she urged her sister to report him to police for sexually assaulting her niece.

The Court held that substantial evidence supported the agency's finding that the robberies were motivated by ordinary financial gain rather than any protected characteristic, and that the relative's threats stemmed from personal revenge for the police report rather than the petitioner's family membership itself, particularly since other family members in El Salvador were left unharmed. Because the petitioner could not establish the required nexus for either asylum or withholding of removal, the Court did not need to reach her timeliness argument or her claim for humanitarian asylum.

The full text of Monzon Guzman v. Blanche can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/25-1351P-01A.pdf

First Circuit Denies Stay of Order Vacating $100,000 H-1B Payment Requirement

The First Circuit has denied the government's motion to stay a district court order vacating DHS and State Department actions implementing a presidential proclamation that required a $100,000 payment to accompany H-1B visa petitions. A coalition of twenty states had challenged the payment requirement as exceeding the executive's statutory authority under the Administrative Procedure Act.

The Court held that the government failed to make the strong showing of likely success on the merits needed for a stay, agreeing with the states that the $100,000 payment functions like a fee or tax requiring a clear congressional delegation under Skinner v. Mid-America Pipeline Co., and that neither the statutory provisions invoked by the President nor Congress's pattern of explicitly authorizing fees elsewhere in the immigration code supplied that clear statement. The Court also rejected the government's argument that the implementing actions were not final agency action subject to review, and found the remaining stay factors did not favor the government either.

The full text of California v. Mullin can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/26-1699O-01A.pdf

First Circuit Grants Petition Where Record Compelled Finding of Indicia of Incompetency

The First Circuit has granted a petition for review filed by a Nepalese asylum applicant whose immigration judge denied relief after finding him not credible, without ever addressing whether he showed signs of incompetency requiring further inquiry. The applicant had suffered a head injury from a political assault years earlier and, during his hearing, gave confused answers that led the judge to order a mental health evaluation.

The evaluation found that the applicant's ability to assist his own attorney was compromised by attention and concentration deficits, but the judge treated the report only as an unsuccessful attempt to rehabilitate credibility and never made any competency finding. The Court held that the combination of the applicant's head trauma and the psychologist's report compelled a finding of indicia of incompetency under Matter of M-A-M-, triggering the immigration judge's affirmative duty to inquire further, regardless of the applicant's positive demeanor or representation by counsel. The Court remanded for the agency to conduct the required competency inquiry in the first instance.

The full text of Rana v. Blanche can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/25-1862P-01A.pdf

First Circuit Denies Reconsideration in Brazilian Domestic Violence Asylum Case

The First Circuit has denied a petition for review filed by a Brazilian family after the BIA denied reconsideration of its dismissal of their asylum appeal. The lead petitioner’s claim was based on past abuse by her former partner, the father of her oldest child.

The Court held that the BIA did not abuse its discretion in rejecting reconsideration. The proposed group of Brazilian women unable to leave relationships with the fathers of their children failed on the record because the petitioner had left the relationship, obtained a restraining order, entered a new relationship, and had no contact with the abuser for many years. The Court also upheld the BIA’s rejection of the family-based proposed group as insufficiently particular.

The full text of Alves-Pains v. Blanche can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1895P-01A.pdf

First Circuit Remands Where BIA Failed to Address Police-Persecution Theories

The First Circuit has granted petitions for review filed by a Kenyan respondent whose asylum, humanitarian asylum, and withholding claims were denied by the BIA. The Immigration Judge had found the respondent credible and found past persecution on account of family, based on abuse by his father, who was associated with the Mungiki.

The Court found that the BIA failed to address two arguments raised by the respondent: that Kenyan police would target him based on his father’s Mungiki membership, and that police would target him as an ethnic Kikuyu man during crackdowns on Mungiki. Because the BIA did not explain whether it overlooked those arguments or deemed them forfeited, the Court vacated the BIA’s orders and remanded.

The full text of Muchiri v. Blanche can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/25-1340P-01A.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

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

First Circuit Finds that VA Conviction for Use of Firearm During Robbery is COV

The First Circuit has determined that a Virginia conviction for use of a firearm is a crime of violence because it requires “using a firearm while overcoming the victim by violence or intimidation.”

The full text of United States v. Mao can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-2107P-01A.pdf