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New Case Law
The Fifth Circuit has rejected the proposition that number bars are subject to equitable tolling. The Court did concede that the numerical bar is a claims processing rule and not a jurisdictional bar.
The full text of Garcia Morin v. Bondi can be found here: https://www.ca5.uscourts.gov/opinions/pub/24/24-60590-CV0.pdf
The Fifth Circuit has determined that “extreme cruelty,” as required for VAWA cancellation of removal, is a mixed question of fact and law that a federal court has jurisdiction to review. The Court indicated review would be deferential as the determination is fact intensive.
The full text of Simantov v. Bondi can be found here:
https://www.ca5.uscourts.gov/opinions/pub/24/24-60487-CV0.pdf
The Fifth Circuit has rejected an argument that a Louisiana conviction for aggravated battery is not a crime of violence, finding that the appellant had not demonstrated a realistic probability that Louisiana actually prosecutes reckless conduct under the statute.
The full text of US v. Sereal can be found here: https://www.ca5.uscourts.gov/opinions/pub/23/23-30198-CR0.pdf
The Fourth Circuit has rejected the Board of Immigration Appeals’ determination that even de minimis support of a terrorist organization disqualifies a non-citizen from asylum, finding that the agency’s interpretation reads the requirement that support be “material” out of the statute. Rather, the Court determined that “material support” is support that is sufficiently substantial standing alone to help the terrorist organization accomplish its terrorist activities. Thus, a captive laborer who cooked meals using food and supplies purchased by the organization did not provide the organization with material support.
The full text of Ozurumba v. Bondi can be found here: https://www.ca4.uscourts.gov/opinions/242070.P.pdf
The Fourth Circuit has remanded an application for protection under the Convention Against Torture filed by a disabled and mentally ill black Guyanese man, finding the agency “ignored relevant evidence relating to McDougall’s claims based on race, physical disability, and criminal-deportee status.”
The full text of McDougall v. Bondi can be found here:
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
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
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
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
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
The Board of Immigration Appeals has determined that an immigration judge generally should not continue an individual hearing based on a respondent’s speculative assertion that he or she may be eligible for a new form of relief from removal not previously raised. In this case, the request for a continuance was not accompanied by an application or proof of prima facie evidence for the relief sought (VAWA cancellation of removal).
The full text of Matter of J-A-F-S- can be found here:
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:
The Second Circuit has determined that a Florida conviction for attempted second degree murder is a crime of violence. Because Florida attempted second-degree murder requires an intentionally committed act which would have resulted in death, the offense plainly satisfies the physical force requirement. The court also noted the mens rea for attempted second degree murder was simple higher than simple recklessness.
The full text of U.S. v. Delgado can be found here:
The California Court of Appeal, Second Division, has determined that an indigent moving party is entitled to appointment of counsel under Penal Code section 1473.7, even if the movant is not in federal immigration custody.
The full text of People v. Gutierrez can be found here:
The Board of Immigration Appeals has determined that “[a] statute’s textual overbreadth does not always unambiguously establish that there is a realistic probability that the State would apply the statute to conduct falling outside the Federal definition of an offense.” “Thus, we conclude that once DHS establishes the existence of a State drug conviction by clear and convincing evidence, a respondent who argues that a State conviction is categorically overbroad based on differing substance or isomer definitions has the burden of demonstrating a realistic probability that the State prosecutes substances falling outside the Federal definition of a controlled substance.”
This decision turns burdens of proof on their head, forcing a lawful permanent to prove he’s not deportable, rather than forcing the Department of Homeland Security to prove he is.
The full text of Matter of Felix-Figueroa can be found here:
The Board of Immigration Appeals has determined that a non-citizen who provides inconsistent address information to immigration officers is a flight risk.
The full text of Matter of Akhmedov can be found here:
The Board of Immigration Appeals has created a presumption that a non-detained individual who has retained private counsel can afford to pay the filing fees for an appeal. In addition, the Board determined that a fee waiver with zeros in the income and expenses columns is presumptively invalid without further evidence or explanation.
The full text of Matter of Garcia Martinez can be found here:
The Board of Immigration Appeals has overturned a bond grant to an individual facing pending drug trafficking charges, finding the person to be a danger to the community.
The full text of Matter of Salas Pena can be found here:
The Board of Immigration Appeals has affirmed that a lack of corroborating evidence is an independent ground for finding an asylum applicant has failed to meet his burden of proof.
The full text of Matter of G-C-I- can be found here:
The Board of Immigration Appeals has overturned an exceptional and extremely unusual hardship finding involving a child with autism and anxiety, two other children with developmental delays, and their mother. “While the respondent’s daughter has been diagnosed with autism and an anxiety disorder and his sons have been diagnosed with developmental delays, the conditions of all three United States citizen children are presently being managed by individualized education programs or early intervention services. As all three children would continue to remain in the United States with the respondent’s United States citizen wife upon the respondent’s removal, they would continue to receive medical care through state Medicaid, as well as specialized educational support in the State of New Jersey.”
This decision is disgraceful, and can only be interpreted as an attempt to interpret the hardship requirement for cancellation in a manner that is impossible to ever meet. Even under deferential standards, I cannot imagine this withstanding federal court review (which thankfully, we can now get on hardship determinations).
The full text of Matter of Buri Mora can be found here:
