BIA Says Withholding Grant Matters in Discretionary Asylum Analysis

The Board of Immigration Appeals has held that a grant of withholding of removal is an important factor in deciding whether asylum may be denied as a matter of discretion. The respondent, a Cameroonian national, received withholding of removal but was denied asylum, adjustment of status, and cancellation of removal in discretion based in part on multiple DUI convictions and related driving offenses.

The Board explained that a grant of withholding mitigates the risk of future persecution because the respondent cannot be removed to the country where persecution is likely. As a result, the discretionary asylum analysis may give less weight to future persecution risk than in cases where withholding has not been granted. The Board dismissed the appeal and affirmed the discretionary denials.

The full text of Matter of P-A-C- can be found here: https://www.justice.gov/eoir/media/1447056/dl?inline

BIA Finds Family Hardship Insufficient for 212(h) Waiver

The Board of Immigration Appeals has reversed a grant of a 212(h) waiver and adjustment of status to a Barbadian respondent. The respondent relied on hardship to his U.S. citizen wife and children and lawful permanent resident mother, but DHS appealed the Immigration Judge’s grant of relief.

The Board held that the emotional and financial difficulties the respondent’s family would experience did not rise to extreme hardship. The Board also found that the respondent’s serious and lengthy criminal history, including convictions and non-conviction conduct, outweighed his equities in the discretionary analysis. The Board sustained DHS’s appeal and ordered him removed to Barbados.

The full text of Matter of Best can be found here: https://www.justice.gov/eoir/media/1449611/dl?inline

BIA Reverses LPR Cancellation Grant Based on Criminal History

The Board of Immigration Appeals has reversed a grant of cancellation of removal to a Canadian lawful permanent resident. The respondent had lived in the United States for decades and had significant family, employment, tax, and health-related equities, but also had multiple criminal convictions and recent conduct showing continued recidivism.

The Board found that the Immigration Judge gave insufficient weight to the respondent’s criminal history, including convictions for stolen property, burglary, endangering the welfare of a child, driving while ability impaired, and harassment. The Board concluded that the adverse factors outweighed the respondent’s equities, sustained DHS’s appeal, and ordered him removed to Canada.

The full text of Matter of Mills can be found here: https://www.justice.gov/eoir/media/1443916/dl?inline

BIA Reverses Cancellation Grant Based on Criminal History and Lack of Remorse

The Board of Immigration Appeals has reversed a grant of cancellation of removal to a Haitian lawful permanent resident. The respondent had lived in the United States for many years and had significant favorable equities, but also had multiple criminal convictions and additional non-conviction conduct.

The Board found that the Immigration Judge did not give sufficient weight to the respondent’s criminal history, non-conviction conduct, and reluctance to accept responsibility. The Board concluded that those adverse factors outweighed the favorable equities, sustained DHS’s appeal, vacated the cancellation grant, and ordered the respondent removed to Haiti.

The full text of Matter of Germain can be found here: https://www.justice.gov/eoir/media/1442486/dl?inline

BIA Finds Lack of Candor About Criminal History Weighs Heavily Against Cancellation

The Board of Immigration Appeals has determined that a respondent’s lack of candor about his criminal history is a significant adverse factor in the discretionary cancellation analysis. The respondent, a lawful permanent resident from Saint Vincent and the Grenadines, appealed the denial of cancellation of removal after returning to the United States and being charged as inadmissible based on a controlled substance conviction.

The Board affirmed the adverse credibility finding and dismissed the appeal. Although the respondent had strong positive equities, including decades of residence, U.S. citizen children, and employment history, the Board found that his undisclosed arrests, criminal history, and lack of candor outweighed the favorable factors.

The full text of Matter of Richards can be found here: https://www.justice.gov/eoir/media/1442711/dl?inline

BIA Overturns Discretionary Grant of Cancellation of Removal to Long-Time LPR

The Board of Immigration Appeals has overturned the discretionary grant of cancellation of removal to a lawful permanent resident who accompanied a 14-year-old girl to buy cocaine and to sell Xanax.

The full text of Matter of MacDonald can be found here:

https://www.justice.gov/eoir/media/1414981/dl?inline

BIA Finds that IJ Exceeded his Authority in Discretionary Grant of LPR Cancellation of Removal

The Board of Immigration Appeals has determined that an Immigration Judge exceeded his authority when he determined that the two children who accused the respondent of the indecent acts were actually not credible. The Board then overturned the discretionary grant, starting that the respondent had not admitted his wrongdoing and thus, had not established rehabilitation.

The full text of Matter of Garcia-Flores can be found here:

https://www.justice.gov/eoir/media/1413661/dl?inline

BIA Affirms Discretionary Denial to Applicant with Criminal History and False Social Security Numbers

The Board of Immigration Appeals has affirmed the discretionary denial of relief to an individual arrested for driving under the influence after consuming 20 beers, when his 10-year-old son was in the car with him, and who has used two social security numbers not validly issued to him for employment and tax purposes. The BIA also noted that the applicant claimed relatives in Mexico as dependents on his tax return without acknowledging that the United States has a tax treaty with Mexico that actually permits this if the applicant is providing at least 50% of those relatives’ support.

The full text of Matter of Gonzalez Jimenez can be found here:

https://www.justice.gov/eoir/media/1407386/dl?inline

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

Seventh Circuit Affirms no Jurisdiction to Review Discretionary Denial of Cancellation Application

The Seventh Circuit has reaffirmed that it lacks jurisdiction to review a discretionary denial of a cancellation of removal application.

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

https://media.ca7.uscourts.gov/cgi-bin/OpinionsWeb/processWebInputExternal.pl?Submit=Display&Path=Y2024/D06-24/C:23-2081:J:Scudder:aut:T:fnOp:N:3226504:S:0

Eleventh Circuit Finds that Discretionary Standards for Adjustment with Crimes and a Waiver are Interchangeable

The Eleventh Circuit has determined that the standard for discretion on an adjustment of status with adverse factors (i.e., crimes) is interchangeable with the standard for discretion on a waiver of inadmissibility.

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

https://media.ca11.uscourts.gov/opinions/pub/files/202211065.pdf

Fifth Circuit Finds No Jurisdiction over Discretionary Denial of LPR Cancellation

The Fifth Circuit has determined that it lacks jurisdiction to review a discretionary denial of cancellation of removal for lawful permanent residents, and that the factors in Matter of C-V-T- do not provide a legal standard sufficient for federal court review.

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

https://www.ca5.uscourts.gov/opinions/pub/21/21-60039-CV0.pdf

First Circuit Affirms Admissibility of Police Report in Discretionary Determination

The First Circuit has affirmed the permissibility of relying on a police report for an open criminal matter when determining whether an adjustment of status applicant merits an exercise of discretion.

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

http://media.ca1.uscourts.gov/pdf.opinions/20-2144P-01A.pdf

Second Circuit Applies Matter of Soram Retroactively

The Second Circuit has determined that Matter of Soram can be applied retroactively to pre-2010 child endangerment convictions. The court further held that it held no jurisdiction to review the agency’s reliance on uncorroborated arrest reports in its discretionary denial of cancellation of removal.

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

https://www.ca2.uscourts.gov/decisions/isysquery/f7d6bf3f-b872-41b8-88da-4b6922237e5f/22/doc/18-3363_opn.pdf#xml=1://www.ca2.uscourts.gov/decisions/isysquery/f7d6bf3f-b872-41b8-88da-4b6922237e5f/22/hilite/

Eleventh Circuit Remands Discretionary Denial of Asylum

The Eleventh Circuit has remanded a discretionary denial of asylum, where the petitioner as granted withholding of removal, and where the Immigration Judge failed to reconsider the denial of asylum, including the possibility of family reunification.

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

https://media.ca11.uscourts.gov/opinions/pub/files/201912019.pdf

First Circuit Remands Denied SIJS Adjustment

The First Circuit has remanded a denied adjustment of status application for a Special Immigrant Juvenile ex-gang member, citing the agency’s failure to consider the specific and serious harm he would face if deported due to his status as an ex-gang member.

The full text of Perez-Trujillo v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/11-1481P-01A.pdf

Third Circuit Sustains Appeal of Discretionary Denial of Asylum

The Third Circuit has sustained an appeal of a discretionary denial of asylum where the IJ granted withholding of removal. The court noted that 8 C.F.R. § 1208.16(e) provides that a denial of asylum shall be reconsidered when an applicant is denied asylum solely in the exercise of discretion and is subsequently granted withholding, and requires that the IJ take into account the reasons for the denial and reasonable alternatives available to the applicant such as reunification with the spouse or minor children in a third country. The IJ in the instant matter refused to consider the issue of family reunification or the significance of the petitioner having established a well-founded fear of persecution.

The court went on to adopt a non-exhaustive list of factors for a court to consider when evaluating whether asylum should be granted in the exercise of discretion.

Positive factors include:1) Family, business, community, and employment ties to the United States, and length of residence and property ownership in this country; 2) Evidence of hardship to the alien and his family if deported to any country, or if denied asylum such that the alien cannot be reunited with family members (as derivative asylees) in this country; 3) Evidence of good character, value, or service to the community, including proof of genuine rehabilitation if a criminal record is present; 4) General humanitarian reasons, such as age or health; [and] 5) Evidence of severe past persecution and/or well-founded fear of future persecution, including consideration of other relief granted or denied the applicant (e.g., withholding of removal or CAT protection).

Negative factors include: 1) Nature and underlying circumstances of the exclusion ground; 2) Presence of significant violations of immigration laws; 3) Presence of a criminal record and the nature, recency, and seriousness of that record, including evidence of recidivism; 4) Lack of candor with immigration officials, including an actual adverse credibility finding by the IJ; [and] 5) Other evidence that indicates bad character or undesirability for permanent residence in the United States.

Based largely on the IJ’s refusal to consider family reunification, the court remanded the case to the agency.

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

https://www2.ca3.uscourts.gov/opinarch/182925p.pdf

Sixth Circuit Reverses Discretionary Denials of Asylum and 237(a)(1)(H) Waiver

The Sixth Circuit reversed the BIA's discretionary denial of asylum because it was inconsistent with the Board's precedent in Matter of Pula.  The BIA denied asylum as a matter of discretion solely because the applicant had used a stolen passport to enter the country, but Pula states that asylum may not be denied as a matter of discretion based solely on the applicant's circumvention of proper immigration procedures.  In addition, the BIA acknowledged that it is more likely than not that the petitioner would face harm due to his religion if returned to Syria.  According to its own precedent, this should “outweigh all but the most egregious adverse factors.”  The irregular entry cannot be deemed such an egregious adverse factor.  Thus, the denial of asylum on discretionary grounds was also inconsistent with this BIA precedent.  

With respect to the waiver, the Court found that the BIA applied the wrong standard of review to the IJ's factual findings, engaging in a de novo review instead of a clearly erroneous standard.

The Court found the petitioner statutorily eligible for the waiver, too.  The Government argued that because the petitioner was inadmissible at the time of his admission as a nonimmigrant as well as at the time of his adjustment of status.  The waiver could cure his inadmissibility at the time of his adjustment only.  However, the language of the waiver indicates that "a petitioner who is eligible for a waiver of removal is 'also' eligible for a 'waive[r] [of] removal based on the grounds of inadmissibility directly resulting from [the relevant] fraud or misrepresentation.'  "The provision thus contemplates circumstances where an already admitted alien seeks to cure a prior misrepresentation."

The full text of Hussam F. v. Sessions can be found here:

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0154p-06.pdf