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

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

First Circuit Finds that Agency Ignored Key Hardship Evidence

The First Circuit has remanded a cancellation of removal case, finding that the agency failed to consider a crucial psychological report about the qualifying relative’s psychological hardship and history of trauma.

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

https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/22-1538P-01A.pdf

First Circuit Confirms that Social Distinction does not Require Ocular Visibility

The First Circuit has confirmed that the social distinction requirement for a particular social group does not equate with “ocular visibility.”

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

ttps://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1112P-01A.pdf

First Circuit Rejects Agency's Hardship Determination

The First Circuit has remanded a cancellation of removal case, finding that the agency failed to evaluate how the qualifying relative’s specific learning disabilities would influence the hardship he would suffer if his parents were deported.

The full text of Duarte de Martinez v. Bondi can be found here:

https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1057P-01A.pdf

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

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

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

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

First Circuit Finds no Jurisdiction to Review NIW Revocation

The First Circuit has determined that a federal court lacks jurisdiction to review the revocation of an approval of a National Interest Waiver and an I-140 petition.

The full text of Guedes v. Mayorkas can be found here:

https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1228P-01A.pdf

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

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

First Circuit Finds Notice to Attorney of Visa Revocation was Sufficient

The First Circuit has determined that serving the attorney who filed a VAWA self-petition with notice of intent to revoke the approval of that petition is sufficient to provide notice the applicant of the intended revocation. The full text of Manguriu v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/22-1220P-01A.pdf

First Circuit Rules Conviction is Final During Collateral Attack

The First Circuit has determined that a conviction remains final for immigration purposes during the pendency of a post-conviction motion.

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

http://media.ca1.uscourts.gov/pdf.opinions/22-1695P-01A.pdf

First Circuit Finds that Location of Administrative Control Court Defines Judicial Venue

The First Circuit has determined that the location of the administrative control court (i.e., where the charging document is filed) - absent an order for change of venue - dictates in which federal circuit appellate review lies.

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

http://media.ca1.uscourts.gov/pdf.opinions/22-1767P-01A.pdf

First Circuit Finds BIA has Authority to Sua Sponte Reopen for NACARA Relief

The First Circuit has determined that the Board of Immigration Appeals can use its sua sponte authority to reopen for a non-citizen to pursue NACARA relief, rejecting the argument that a motion to reopen under 8 C.F.R. § 1003.43(e)(1) is the only available means for reopening for NACARA relief.

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

http://media.ca1.uscourts.gov/pdf.opinions/22-1599P-01A.pdf

First Circuit Reverses Agency for Discrediting Expert

The First Circuit has remanded a CAT claim in which the agency discredited an expert’s opinion without sufficient reason.

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

http://media.ca1.uscourts.gov/pdf.opinions/21-2002U-01A.pdf

First Circuit Finds that Massachusetts Conviction for Defacing Firearms is not a Deportable Offense

The First Circuit has determined that a Massachusetts conviction for defacing firearms is not a deportable firearms offense because it criminalizes conduct involving antique firearms.

The full text of Portillo v. U.S. Department of Homeland Security can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/22-1383P-01A.pdf

First Circuit Finds DOS Report Insufficient to Rebut Presumption of Future Harm

The First Circuit has determined that the Department of State Human Rights Report, coupled with the petitioner’s testimony that his political party had disbanded and the absence of harm to his non-politically active relatives in the his home country, was insufficient to rebut the presumption of future persecution.

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

http://media.ca1.uscourts.gov/pdf.opinions/22-1215P-01A.pdf

First Circuit Construes Former Citizenship Statute

The First Circuit, in construing former section 321(a) of the INA, has assumed that manifesting an intent to reside permanently in the US would be sufficient for derivation of citizenship, but found that a minor who abandoned his adjustment application by failing to appear at an interview without a reasonable explanation did not manifest such intent.

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

http://media.ca1.uscourts.gov/pdf.opinions/22-1496P-01A.pdf