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

First Circuit Rejects Categorical Rule that Resistance to Gangs Cannot be Political Opinion

The First Circuit has rejected a categorical rule that resistance to gangs cannot be a political opinion.

“[I]n certain locations, gangs may take on a quasi-governmental role such that opposition to them is similar to opposing a government. Whether a particular gang constitutes a political entity or only a criminal one is, of course, a question that is highly context-dependent and fact-intensive.”

“When evaluating political opinion claims based on resisting gang recruitment or gang opposition, the factfinder must determine whether the applicant has an actual or imputed political opinion; if so, it must then conduct a fact-intensive assessment of the claim to determine if there is a nexus between the opinion and the gang's conduct. Successful applicants will submit persuasive evidence showing, inter alia, (1) that they possess a political opinion, or that the gang attributed a political opinion to them, and (2) a connection between the gang conduct at issue and the actual or imputed political opinion.”

The full text of Lopez Martinez v. Blanche can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/25-1225P-01A.pdf

First Circuit Adopts "Time of Conviction" Rule

The First Circuit has determined that when looking at whether a non-citizen has been convicted of a controlled substance violation, an immigration court should look at the Controlled Substances Act as it was written at the time of the conviction.

The full text of Dor v. Bondi can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/25-1278P-01A.pdf

First Circuit Remands for Agency to Determine if Police Report is Corroborated

The First Circuit has remanded an adjustment of status case for the agency to determine if the record included any corroboration for the allegations contained in a police report related to conduct that did not result in a conviction.

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

https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/21-1395P-01A.pdf

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

First Circuit Remands CAT Claim

The First Circuit has remanded a claim for protection under the Convention Against Torture filed by a Haitian citizen, on the ground that the Board of Immigration Appeals failed to address the risk that low-level prison officials would torture the applicant.

The full text of Fleurimond v. Bondi can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1913P-01A.pdf

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

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

First Circuit Finds no Jurisdiction to Review One-Year Filing Deadline Exception

Th First Circuit has determined that it lacks jurisdiction to review the agency’s determination that an asylum applicant had not demonstrated extraordinary circumstances should excuse her untimely filing.

The full text of Zapet-Alvarado v. Bondi can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1782P-01A.pdf

First Circuit Declines to Apply Mailbox Rule to Untimely Filed PFR

The First Circuit has declined to apply the mailbox rule to a detainee whose petition for review was mailed prior to the filing deadline by his spouse, when the petition did not arrive at the clerk’s office until after the deadline had passed.

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

www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1511P-01A.pdf

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

An amended decision can be found here:

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