Viewing entries tagged
First Circuit

Comment

First Circuit Addresses Termination of Parole Programs

The First Circuit has denied a request to enjoin the termination of parole programs for citizens of Cuba, Haiti, Venezuela, and Nicaragua.

The Court first determined that the parole scheme contemplates the granting of parole only on a case-by-case basis, but does not prevent a categorical termination of parole to groups of beneficiaries. The Court, also determined that the government’s justification for the termination of the parole programs was not clearly erroneous. “DHS explained that it sought to terminate parole early for existing parolees -- rather than permit their parole to naturally expire -- to minimize the number of people who would have otherwise been ineligible by statute for expedited removal proceedings by virtue of their two-year continuous presence in the United States.” The Court recognizes that expedited removal is only applicable to non-citizens who have not been admitted or paroled, but acknowledged that it may be applicable to those individuals whose parole has been terminated.

The full text of Doe v. Noem can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/25-1384P-01A.pdf

Comment

Comment

First Circuit finds Doctrine of Consular Nonreviewability does not Bar Review of Visa Category Reclassification

The First Circuit has determined that a consular post’s determination that a visa applicant was in the F-1 category, rather than an immediate relative, because he was over age 21 when his petitioning father naturalized, is reviewable by a federal court. The Court determined that the petition reclassification does not constitute a visa denial, and thus, does not implicate the doctrine of consular nonreviewability. The First Circuit also agreed with the Ninth Circuit that a beneficiary’s age at the time of a parent’s naturalization refers not to their biological age, but their CSPA-adjusted age. Thus, because the applicant’s CSPA-adjusted age was 20 at the time of his father’s naturalization, he was properly categorized as an immediate relative.

The full text of Teles de Menezes v. Rubio can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1253P-01A.pdf

Comment

Comment

First Circuit Remands for BIA to Provide Further Analysis of Request to Accept Late Filed Brief

The First Circuit has remanded a case in which the Board of Immigration Appeals declined to accept a late filed brief. The applicant had timely filed the brief via ECAS, but counsel had erroneously filed it with the Immigration Court rather than the Board. Three weeks later, the Immigration Court rejected the brief, and the applicant’s counsel immediately re-filed it with the Board. Three days later, the Board rejected the brief as untimely, and directed the applicant to file it with a motion to accept a late filed brief. The applicant’s counsel complied, and four days later, the Board denied the motion, simply stating that the reasons provided were insufficient for the Board to exercise its discretion. The First Circuit remanded for the Board to either provide a more robust analysis or to reconsider its decision.

The full text of Lopez-Gomez v. Bondi can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1921P-01A.pdf

Comment

Comment

First Circuit Remands MTR for Cancellation of Removal

The First Circuit has remanded a motion to reopen filed by applicants for cancellation of removal. “It is unclear whether the BIA concluded that (1) as a matter of fact, Petitioners failed to corroborate their assertions about the serious educational hardship L.C. would face in Guatemala, or (2) as a matter of law, L.C.'s claimed hardship would not be exceptional and extremely unusual even if it were corroborated.” “If the BIA meant to hold that Petitioners provided insufficient factual corroboration for their claim that L.C. would be deprived of an education in Guatemala, it did not explain its reason for so holding. In particular, the BIA does not appear to have addressed the salient aspects of the country conditions evidence that would seem to support the claimed hardship if considered in light of L.C.'s individual circumstances.”

The full text of Garcia v. Bondi can be found here:

https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1296P-01A.pdf

Comment

Comment

First Circuit Remands Gender Violence Asylum Claim

The First Circuit has remanded an Ecuadorian woman's asylum claim, finding that the agency failed to engage in the appropriate “mixed motives” analysis. “Testimony identifying a non-protected motivation animating an asylum applicant's persecutor is therefore insufficient in and of itself to defeat an asylum claim. That principle applies with particular force when, as here, an asylum applicant was persecuted during childhood, as rarely will an applicant know the exact motivation of her persecutors -- especially when she was victimized as a young child -- and, of course, persecutors may often have more than one motivation."

The full text of Mayancela Guaman v. Bondi can be found here:

https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1295P-01A.pdf

Comment

Comment

First Circuit Applies "Clear, Unequivocal, and Convincing" Standard to Alienage

The First Circuit has determined that Homeland Security must prove alienage by "clear, unequivocal, and convincing” evidence, and that this standard is higher than “clear and convincing” evidence.

The full text of Rosa v. Bondi can be found here:

https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1240P-01A.pdf

An amended decision can be found here:

https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1240P2-01A.pdf

Comment

Comment

First Circuit Finds BIA does not have Settled Course of Reopening after Successful Post-Conviction Relief

The First Circuit has determined that the Board of Immigration Appeals does not have a settled course of granting motions to reopen filed by former lawful permanent residents who have successful vacated the convictions that underpined their removal orders.

The full text of Phimmady v. Bondi can be found here:

https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1330P-01A.pdf

Comment

Comment

First Circuit Remands CAT Claim

The First Circuit has remanded a Convention Against Torture case, finding that the agency applied an erroneous standard by relying solely on “the fact that the government has taken some responsive action to combat private violence.”

“More to the point, looking only to whether a government takes some responsive action to prevent private violence fails to account for instances where a foreign government takes some measures but still does not satisfy its legal duty to intervene. Sometimes, despite having taken some action, a government may still have a legal responsibility to do more.. That is why we require the agency to address whether the government's actions demonstrate that it will adequately meet its legal responsibility to intervene. Addressing this part of the inquiry is especially important where a government's preventative actions have been ineffective.”

The full text of Akinsanya v. Garland can be found here:

https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1412P-01A.pdf

Comment

Comment

First Circuit Addresses Agency's Settled Course of Granting Unopposed Motions to Remand for Adjustment

The First Circuit has recognized that the Board of Immigration Appeals (BIA) has a settled course of adjudication of granting unopposed motions to remand for non-citizens to seek adjustment of status.

“The question is whether there is a ‘settled course"‘ by the BIA of routinely granting such unopposed remand requests so that petitioners in removal proceedings may proceed for an adjustment of status. As a matter of law, it is arbitrary and capricious for the BIA to suddenly and inexplicably depart from established policies, including its own precedents. Badose asserts that this is exactly what happened here. As noted, the government has not refuted that proposition.”

The court also noted that the BIA is prohibited from engaging in factfinding in connection with a motion to reopen, and not only in its adjudication of an appeal.

“On the record before us, we can only conclude that the BIA improperly denied Badose's unopposed remand motion both by arbitrarily deviating from a standard course of practice and by improperly engaging in factfinding in violation of 8 C.F.R. § 1003.1(d)(3). Badose is therefore entitled to a remand to the IJ so that he can present his case for adjustment of status based on his marriage.”

The full text of Badose v. Garland can be found here:

https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/23-1156P2-01A.pdf

Comment

Comment

First Circuit Addresses Family-Based Social Group Claim

The First Circuit has remanded an asylum application, noting that there is was no other basis in the record for the persecution alleged than family ties. “The fact that the cattle thieves were motivated in targeting Pineda-Maldonado in part to protect themselves, because they feared Pineda-Maldonado would retaliate against them, is not disputed by the parties. Butt hat fact does not in and of itself suffice to end the inquiry into whether family status was ‘a central reason’ for their having targeted him, any more than the fact that the cattle thieves sought money in targeting Pineda-Maldonado due to his father's debt could end such an inquiry.”

The full text of Pineda-Maldonado v. Garland can be found here: http://media.ca1.uscourts.gov/pdf.opinions/20-1912P-01A.pdf

Comment

Comment

First Circuit Rejects Agency Circularity Analysis

The First Circuit has rejected the agency’s determination that an asylum applicant’s proposed social group was impermissibly circular simply because it referenced harm in its definition. “If an applicant's proffered social group, examined without consideration of the potentially circular language, shares independent socially distinctive characteristics, then neither the IJ nor the BIA may reject the group as legally invalid without further substantive analysis.”


The full text of Espinoza-Ochoa v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/21-1431P-01A.pdf

Comment