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New Case Law
The Board of Immigration Appeals has determined that the written frivolous warnings on the I-589 application are sufficient to give notice of the consequences of filing a frivolous asylum application. There is no requirement that a judge provide oral warnings and withdrawing the application does not preclude a frivolous finding.
The full text of Matter of S-M-H- can be found here: https://www.justice.gov/eoir/media/1425081/dl?inline
The Board of Immigration Appeals has determined that there is no presumption that a single misdemeanor does not qualify as a particularly serious crime, but rather, the analysis in Matter of N-A-M- governs the determination.
The full text of Matter of E-A-S-O- can be found here:
The Board of Immigration Appeals has again undermined the testimony of an expert witness, finding it insufficiently supported.
“First, the expert did not profess any direct knowledge of the extent to which China tortures those convicted of drug trafficking crimes abroad, nor did he articulate any past professional experience with death penalty cases in China or the way in which China implements the death penalty. Second, the expert noted in his report that ‘there is a paucity of statistics on torture and executions in China’ and ‘little official information on the handling of expatriated drug-traffickers.’ He also did not provide any meaningful estimations on the number of individuals sentenced to death or the percentage of those convicted of crimes who were sentenced to death. Although he cited a law journal article stating that 95 percent of death sentences in China involve drug crimes, intentional homicide, and robbery, this statistic was not broken down further as to how likely a person convicted of drug crimes was to receive the death penalty or the likelihood of that the death penalty would be inflicted on individuals, like the respondent, who were convicted of drug trafficking in another country.”
“The relevance and the reliability of an expert witness’ opinions are significantly undercut when those opinions are informed by anecdotal or inaccurate facts or data. Because the expert relied on two anecdotes that are not analogous to the respondent’s circumstances to support his prediction that the respondent would be detained and tortured due to his drug trafficking conviction in the United States, the Immigration Judge clearly erred in assigning significant weight to the expert’s opinion without reasonably considering the apparent deficient underlying factual basis.”
The BIA concluded that “[t]he general evidence of China’s harsh penalties for individuals convicted of drug trafficking crimes committed in China and the use of torture in Chinese prisons is insufficient to establish that the respondent will more likely than not be detained and tortured, extralegally or otherwise, based on his drug trafficking conviction in the United States.“
The full text of Matter of G-M-I- can be found here:
The Board of Immigration Appeals has held that “[a] respondent’s valid marriage to a United States citizen entered into after a removal order does not constitute an exceptional situation warranting sua sponte reopening of removal proceeding.”
The full text of Matter of Yadav can be found here: https://www.justice.gov/eoir/media/1426906/dl?inline
The Board of Immigration appeals has limited an Immigration Judge’s authority to consider new eligibility for relief when the case is remanded for background checks.
“We now modify our decision in Matter of M-D- and clarify that the scope of a background check remand is for the limited and narrow purpose of the Immigration Judge considering the reported results of DHS’ background and security checks and entering a final order regarding the relief or protection that formed the basis for the remand. The regulation at 8 C.F.R. § 1003.47(h) expressly authorizes the Immigration Judge to conduct a hearing, if necessary, to consider any “new information” that could potentially affect a respondent’s eligibility for the relief that formed the basis for the remand and instructs the Immigration Judge to then enter an order granting or denying the immigration relief sought. However, it does not authorize the Immigration Judge to consider a respondent’s application for a new or different form of relief or a respondent’s request for consideration of other issues in the context of the background check remand.“ “Thus, if a respondent seeks to apply for a new or different form of relief, the respondent must file a separate motion to reopen, accompanied by the appropriate fee, with the Immigration Court after the Immigration Judge enters an order granting or denying the relief that was the subject of the background check remand.”
The full text of Matter of L-S-C-R- can be found here: https://www.justice.gov/eoir/media/1428161/dl?inline
The Board of Immigration Appeals has rejected the Immigration Judge’s determination that the Russian government would not protect a woman who converted from Islam to Orthodox Christianity.
“While the respondent began experiencing harm at the hands of her family as a child, this harm continued well into adulthood and the respondent still failed to report it to the authorities. As an adult the respondent traveled to different cities far away from her family, and at times lived outside of her family’s control, yet she never sought assistance or protection from the police or other authorities. Although the respondent argues that her family maintains connections with the police in her town such that reporting her harm would have been futile or dangerous, the respondent’s status as an adult, her ability to travel apart from her family, and her ability to communicate, all demonstrate that the respondent could have requested assistance from the authorities in her country.
Without any citation to the record, the respondent also argues that “record evidence” contradicts our conclusion that her conversion to Russian Orthodox Christianity makes police protection more likely. However, the respondent’s conversion makes her a member of the country’s majority religion, and the record reflects that the Russian Orthodox Church maintains a privileged status in Russia and works closely with the Russian Government. Given these facts, the respondent has not established that her family members, who practice Islam, would be able to meaningfully influence the Russian authorities.”
The full text of Matter of F-B-A- can be found here: https://www.justice.gov/eoir/media/1428266/dl?inline
The Eleventh Circuit has determined that a District of Columbia conviction for attempted first-degree sexual abuse is not an attempted rape aggravated felony because it includes acts of digital penetration.
The full text of Barrie v. U.S. Attorney General can be found here: https://media.ca11.uscourts.gov/opinions/pub/files/202412504.pdf
The Tenth Circuit has determined that federal courts have jurisdiction under the Administrative Procedure Act to review USCIS’s decision to terminate refugee status.
“We first consider 8 U.S.C. § 1157(c)(4), the provision under which USCIS terminated Mukantagara’s refugee status. As we interpret it, that provision provides a two-step process. At step one, USCIS evaluates whether the noncitizen meets the statute’s eligibility requirement of not being a ‘refugee’ when admitted into the United States. At step two, USCIS has discretion to terminate the refugee status of any noncitizen who is eligible at step one. After that, we consider whether the INA’s jurisdiction-stripping provision at 8 U.S.C. § 1252(a)(2)(B)(ii) covers a district court’s review of USCIS’s eligibility determination at the above step one. We conclude that § 1252(a)(2)(B)(ii) applies only to discretionary actions and that the eligibility determination under § 1157(c)(4)’s step one is not discretionary.”
“When the INA directs immigration agencies to assess statutory eligibility criteri in a first step before exercising discretion in a second, the first step is not discretionary. Section 1157(c)(4)’s first step requires the agency to assess eligibility before deciding to terminate refugee status. Section 1157(c)(4)’s first step is nondiscretionary.“
The full text of Mukantagara v. Noem can be found here: https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111366275.pdf
The Tenth Circuit has determined that a California conviction for possession of child pornography does not match the federal definition of a crime involving child pornography because “the statute covers nonexplicit images of children with no focus on the child’s intimate areas—for example, an image that depicts an adult simply hugging a fully clothed child where the adult had the intent to be aroused.”
The full text of United States v. Griffin can be found here: https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111367340.pdf
The Tenth Circuit has determined that an Oklahoma conviction for assault and battery with a dangerous weapon is not categorically a crime of violence because it criminalizes assault on an unborn child.
The full text of United States v. Singer can be found here:
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111374543.pdf
The Ninth Circuit has determined that an evidentiary record compels the conclusion that the Honduran government is unable or unwilling to protect a woman from violence perpetrated by her partner, who was also a gang member.
“The IJ observed that did not necessarily suggest the police would do the same if they arrested Oscar after beating Petitioner. Yet the record in this case strongly suggests that if the government took no meaningful action in that instance, when Oscar’s victim was a man, it was even less likely to take meaningful action when the victim was a woman. The conclusion compelled by Petitioner’s testimony concerning the danger she faced from Oscar, his violent outbursts when she sought refuge at church, and his death threats deterring her from reporting him, as well as by the country conditions report documenting uncontrollable violence against women in Honduras, is that an attempt to report would not only have been futile, it would also have been likely to result in further harm to Petitioner. Because the record compels the conclusion that the government of Honduras would be either unable or unwilling to protect Petitioner, this element of the asylum and withholding inquiries is satisfied.”
The full text of Guevara-Serrano v. Bondi can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2026/01/20/23-4420.pdf
The Ninth Circuit has rejected a per se rule that traffic can never be an exceptional circumstance that excuses missing a hearing in immigration court.
“We have never adopted a rule that traffic (or any other circumstance) is per se unexceptional. And we reject any bright-line rules about what can or cannot qualify as an exceptional circumstance because the statutory test depends on the totality of the circumstances in each petitioner’s case.”
“And more to the point, the fifteen-minute cushion petitioners gave themselves did not cause their failure to appear. Petitioners were two hours late for their hearing, and it was the two major accidents causing a ten-mile backup that caused them to be late. Even if they gave themselves an extra ninety minutes to get to court, they still would have been late because of the severe traffic that morning. Exercising diligence does not mean a petitioner must predict the very ‘extraordinary circumstance’ they contend caused their failure to appear. The BIA must consider petitioners’ diligence based on what a reasonable person would do under the circumstances, without the benefit of 20/20 hindsight.'“
The Eighth Circuit has determined that North Dakota’s robbery statute matches the definition of an attempted theft aggravated felony, rejecting the claim that the statute covers crimes of deceit.
The full text of Banyee v. Bondi can be found here: https://ecf.ca8.uscourts.gov/opndir/26/01/243590P.pdf
The Eighth Circuit has affirmed the agency’s denial of a motion to reopen based on ineffective assistance of counsel because the attorney failed to provide proof that his self-reported bar complaint was actually sent to the relevant disciplinary authoritites.
The full text of Rodriguez Irias v. Bondi can be found here: https://ecf.ca8.uscourts.gov/opndir/26/02/251419P.pdf
The Fifth Circuit has determined that all non-citizens who enter the United States without inspection are subject to mandatory detention under 8 USC 1225.
The full text of Buenrostro- Mendez v. Bondi can be found here:
https://www.ca5.uscourts.gov/opinions/pub/25/25-20496-CV0.pdf
The Fifth Circuit has affirmed the agency’s determination that harsh prison conditions in El Salvador do not constitute torture. Some of the agency’s conclusions include:
-evidence is not sufficient to show that the dismal and harmful conditions of detention are specifically intended to torture
- pursuant to El Salvador’s State of Exception, Fuentes-Pineda would likely be detained and imprisoned upon his arrival
-the IJ was “unable to speculate” that deaths in Salvadoran prisons were “the result of extreme cruel and inhuman treatment rather than other causes such as substandard conditions of prison”
-evidence that the government is attempting to obfuscate the number of deaths does not necessarily indicate these deaths were specifically intended, rather than the result of of negligence caused by the overcrowded conditions
-advertising the poor conditions as a deterrent to criminal conduct is not inconsistent with attempts to improve those conditions as they currently exist
The full text of Fuentes-Pineda v. Bondi can be found here: https://www.ca5.uscourts.gov/opinions/pub/24/24-60592-CV0.pdf
The Fifth Circuit has determined that asylum applicants protected by Temporary Protected Status cannot sue over the denial of their affirmative asylum applications because the denials are not final agency actions.
The full text of Sayegh de Kewayfati v. Bondi can be found here:
https://www.ca5.uscourts.gov/opinions/pub/25/25-20073-CV0.pdf
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:
The Second Circuit has remanded an untimely motion to reopen based on both post-conviction relief and a change in case law related to deportability. The “BIA abused its discretion in finding that Pinilla failed to demonstrate due diligence in pursuing his motion to reopen. In its decision, the BIA explained only that Pinilla was not entitled to tolling because he waited ‘approximately 2 years’ after New York revised its marijuana laws to file his motion. The agency’s stated justification is not the ‘minimum level of analysis’ that we require ‘if judicial review is to be meaningful.’ ‘[T]he test for equitable tolling, both generally and in the immigration context, is not the length of the delay in filing the [motion]; it is whether the claimant could reasonably have been expected to have filed earlier.’”
The full text of Pinilla Perez v. Bondi can be found here: https://ww3.ca2.uscourts.gov/decisions/isysquery/5b8de542-619b-4223-b191-466cb013720f/9/doc/23-6363_opn.pdf
The Board of Immigration Appeals has determined that death threats constitute persecution if they are objectively credible and issued by a person or persons with the immediate ability to carry them out. The standard is seemingly in line with circuit court precedent, but the application of the standard is extreme. The Board found that receipt of an anonymous death threat accompanied by the delivery of bullets was not sufficiently credible or imminent.
The full text of Matter of E-M-F-S- can be found here: https://www.justice.gov/eoir/media/1422766/dl?inline
