Third Circuit Denies Fourth Attempt to Reopen a 2011 Removal Order Based on a 2023 Circuit Decision

The Third Circuit has denied a petition for review filed by a Dominican lawful permanent resident seeking, for the fourth time, to reopen a removal order that became final in 2011, holding that a change in law is never a basis for statutory reopening and that his separate motion for reconsideration was untimely by roughly thirteen years.

The Court held that the text of the statutory reopening provision requires "new facts" proven through evidentiary material, not a subsequent judicial decision interpreting an existing statute, and that permitting equitable tolling of that avenue based on later case law would collapse the deliberate distinction Congress drew between reopening and reconsideration. The Court also held that a recent Second Circuit decision interpreting the New York drug statute underlying the petitioner's removal order was not the kind of extraordinary circumstance that could excuse his years-late reconsideration motion, and that it lacked jurisdiction to review the BIA's discretionary denial of sua sponte reopening.

The full text of Aristy-Rosa v. Attorney General can be found here: https://www2.ca3.uscourts.gov/opinarch/251490p1.pdf

Third Circuit Grants En Banc Rehearing on Jurisdiction to Review Standalone CAT Claims

The Third Circuit has granted the government's petition for rehearing en banc and vacated its earlier panel decision holding that the court has jurisdiction to review a CAT-only claim under 8 U.S.C. § 1252(a)(1), setting the case for argument in October before the full court.

The order denies the petitioner's own rehearing petition but grants the government's, reopening the question that has split circuits and produced pointed disagreement within the Third Circuit itself, including a recent concurrence in a separate case arguing that no statutory basis exists for reviewing a CAT-only petition absent a challenge to the underlying final order of removal. Petitioner must file a supplemental brief responding to the government's arguments by September 21.

The full text of Laureano v. Attorney General can be found here: https://www2.ca3.uscourts.gov/opinarch/242433po.pdf

Third Circuit Dismisses CAT-Only Petition as Moot After Petitioner's Removal and Foreign Detention

The Third Circuit has dismissed as moot a petition for review filed by a Salvadoran man seeking deferral of removal under the Convention Against Torture, after the government removed him following the court's earlier denial of a stay and Salvadoran authorities then detained him on suspicion of gang activity.

The Court held that because the petitioner never challenged his underlying removal order, any success on his CAT-only claim could not relieve him of the reentry bar that independently follows from that order, distinguishing cases where a live challenge to removability itself keeps a controversy alive. The Court also held that a policy allowing ICE to facilitate the return of some removed noncitizens did not save the case from mootness given the government's representation that extraordinary circumstances, including his suspected membership in a designated foreign terrorist organization, would preclude its application, and that in any event a U.S. court cannot secure a petitioner's release from foreign criminal custody.

The full text of Mejia-Henriquez v. Attorney General can be found here: https://www2.ca3.uscourts.gov/opinarch/252184p.pdf

Third Circuit Vacates Stay of Removal in Long-Running Challenge to 2011 Removal Order

The Third Circuit has vacated a longstanding stay of removal for a Dominican petitioner making his fourth attempt to reopen a removal order that became final in 2011, holding that after supplemental briefing and oral argument he could no longer meet his burden on any of the four factors governing a stay pending appeal.

The Court held the petitioner failed to show a likelihood of success given multiple unaddressed obstacles to his statutory and sua sponte reopening theories, failed to show irreparable harm based only on speculative fear of a routine ICE check-in, and could not overcome the strong public interest in finality given his decade-plus history of unsuccessful challenges. The Court separately explained its denial of a late request to hold the case in abeyance for a state-court collateral attack on the underlying conviction, noting the timing suggested an effort to manufacture further delay.

The full text of Aristy-Rosa v. Attorney General can be found here: https://www2.ca3.uscourts.gov/opinarch/251490p.pdf

Third Circuit Denies Withholding Claim by Equally Divided Vote

The Third Circuit has denied a petition for review filed by a lawful permanent resident from the Dominican Republic who sought withholding of removal after a serious drug trafficking conviction. A majority of the panel agreed that it had jurisdiction after Riley (even though the petition did not mount a challenge to the underlying reinstatement order, only the denial of relief) and agreed that CAT protection was properly denied, but it fractured on the withholding issue.

Because the panel divided evenly on whether Matter of Y-L- lawfully provides a valid mandatory presumption that certain drug trafficking offenses are particularly serious crimes, the BIA’s ruling stood. The Court’s denial does not create precedential law on the validity of Matter of Y-L-, leaving the question for another day.

The full text of Laureano v. Attorney General can be found here: https://www2.ca3.uscourts.gov/opinarch/242433p.pdf

The Court granted the government’s motion to rehear this case en banc:

https://www2.ca3.uscourts.gov/opinarch/242433po.pdf

Third Circuit Determines that Federal Conviction for Attempted Murder of a Witness is a Crime of Violence

The Third Circuit has determined that a conviction for attempted murder of a federal witness is a crime of violence because the government must necessarily prove that the defendant at least attempted to use physical force.

The full text of U.S. v. Smith can be found here:

www2.ca3.uscourts.gov/opinarch/242020p.pdf

Third Circuit Finds Failure to Disclose Children on DV Lottery Application is Material Misrepresentation

The Third Circuit has determined that an applicant’s failure to disclose his children on his diversity visa lottery application is material because their existence was relevant to whether he was inadmissible under the public charge ground.

The full text of Savane v. Secretary of DHS can be found here: https://www2.ca3.uscourts.gov/opinarch/243286p.pdf

Third Circuit Remands Fear-Related Claims

The Third Circuit has remanded a Nigerian man’s fear-related claims, finding the agency failed to properly analyze the elements of conviction before concluding it was a particularly serious crime and finding that the agency failed to employ the proper CAT analysis.

The full text of Amos v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/222095p.pdf

Third Circuit Finds no Jurisdiction to Review BIA Certification Determination

The Third Circuit has determined that it lacks jurisdiction to review the decision of the Board of Immigration Appeals not to certify a late-filed appeal.

The full text of Abdulla v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/191167p1.pdf

Third Circuit Finds no Jurisdiction to Review One Year Filing Deadline Exception

The Third Circuit has determined that whether an asylum applicant has demonstrated extraordinary circumstances related to the delay in filing is a determination that cannot be reviewed by a federal court.

The full text of Real v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/241545p.pdf

Third Circuit Construes Evidentiary Requirement for Motion to Reopen

The Third Circuit has determined that the regulatory requirement that a motion to reopen present new evidence, not previously available, refers to “evidence that becomes available only after the final hearing before the IJ,” “irrespective of whether the petitioner’s appeal to the BIA is then pending.”

The full text of Suchite-Salguero v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/241970p.pdf

Third Circuit Finds that Good Moral Character is Mixed Question of Fact and Law

The Third Circuit has determined that good moral character - as required for cancellation of removal - is a mixed question of fact and law that a federal court can reviewed under the substantial evidence standard.

The full text of Sanchez v. Attorney General can be found here:

Https://www2.ca3.uscourts.gov/opinarch/242279p.pdf

Third Circuit Rejects Subordination- and Animus-based Nexus Tests

The Third Circuit has again rejected the use of a subordination test (i.e., asking if a protected ground motive for persecution is subordinate to other motives) and an animus test (i.e., asking if the persecutor was motivated by an animus against the protected characteristic). In addition, the Court reiterated that just because a government is attempting to prevent torture does not mean it is succeeding, and that the efforts are not determinative of whether there is government acquiescence to torture.

The full text of Tipan Lopez v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/241444p.pdf

Third Circuit finds that Federal Conviction for False Statements Involves Deceit

The Third Circuit has determined that a federal conviction under 18 U.S.C. § 287 (false, fictitious or fraudulent claims) categorically involves deceit, and thus is an aggravated felony if it causes a loss to the U.S. government in excess of $10,000. “The action is submitting a false claim for the government to pay. The mental state requires lying because the claimant must know the claim is false. That is exactly what ‘deceit means: ‘the act of intentionally giving a false impression by ‘falsification, concealment, or cheating.’”

The full text of Lanoue v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/242583p.pdf

Third Circuit Chides BIA for Circumventing Statutory Provisions on Rescission of LPR Status

The Third Circuit has found that the Board of Immigration Appeals acted outside its authority when it certified a late appeal of a case granting adjustment of status to a non-citizen. The Court noted that once the 30-day appeal period had run, the applicant’s permanent residency status was final as a matter of law, and the executive branch had to utilize the provisions of the rescission statute if it wished to claw back that status. It was improper for the Board to circumvent the statutory rescission process by certifying an appeal of the immigration judge’s decision more than 30 days after if was issued.

The full text of Qatanani v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/241849p.pdf

Fourth Circuit Finds that OPPM Memo does not Create Enforceable Rights

The Fourth Circuit has determined that an OPPM memo instructing judges to issue a cancellation of removal grant within 5 days of the visa number becoming available does not create any enforceable rights.

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

https://www.ca4.uscourts.gov/opinions/241111.P.pdf

Third Circuit Upholds Discretionary Denial of Asylum

The Third Circuit has upheld the discretionary denial of asylum to an applicant who entered the US using a passport and ESTA in someone else’s name, who had no family members that he could immigrate as asylee derivatives.

The full text of Thankarasa v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/233204p.pdf

Third Circuit Applies Substantial Evidence Standard to Hardship Review

The Third Circuit has determined that the substantial evidence standard applies to a federal court’s review of the agency’s hardship finding in a cancellation of removal case.

The full text of Wilkinson v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/213166p.pdf

Third Circuit Finds that PA Felony Eluding Statute is Divisible

The Third Circuit has determined that a Pennsylvania statute criminalizing eluding the police as a felony is divisible between three grading factors. The Court further found that the third grading factor could be violated by a driver who recklessly flees or attempts to elude law enforcement in an attempt to transport himself or another person to a hospital would still violate the statute. This conduct is not reprehensible, and thus, the statute is not a categorical match to the definition of a crime involving moral turpitude.

The full text of Ndungu v. Attorney General can be found here: https://www2.ca3.uscourts.gov/opinarch/202562p.pdf

Third Circuit Finds that Equitable Estoppel Cannot Confer Citizenship

The Third Circuit has determined that a non-citizen who was erroneously granted a certificate of citizenship, which was not revoked for 21 years, cannot use the doctrine of equitable estoppel to obtain a declaration of citizenship from a federal court. “It is unfortunate that the government erroneously issued Lall a Certificate of Citizenship in the first place. And it is inexcusable that it quickly discovered its error but failed to correct it for over twenty-one years. Of course, it is Lall’s own subsequent criminal conduct that has brought the consequences of the government’s dereliction down on his head. Still, that dereliction has fundamentally changed Lall’s identity and place in the world. He turns to us for assistance, but we cannot provide the relief he seeks. Not every wrong is ours to right. “

The full text of Lall v. Department of Homeland Security can be found here:

https://www2.ca3.uscourts.gov/opinarch/202051p.pdf