BIA Overrules Decades-Old Precedent, Holds an Admission to Drug Use Need Not Track the Statute's Precise Elements

In a significant precedent decision, the Board of Immigration Appeals has overruled Matter of K- (1957) and Matter of J- (1945), holding that a non-citizen's admission to having possessed and used cocaine renders him inadmissible under INA § 212(a)(2)(A)(i)(II) even though he was never advised of the precise statutory definition or essential elements of the offense before admitting to the conduct.

The Board reasoned that the controlled substance inadmissibility ground requires only that the respondent voluntarily admit to conduct that constitutes the essential elements of the offense and receive a fair hearing — nothing in the statute's plain language requires that he first be instructed on the formal legal definition of the crime. Requiring that additional procedural step, the Board held, "exceeds what is required under the plain language of the statute," and the appeal was dismissed.

The full text of Matter of Tirso Mendez Maldonado can be found here: https://www.justice.gov/eoir/media/1462126/dl?inline

BIA Rejects Due Process Challenge Premised on Claims of Institutional Bias and Board Reorganization

The Board of Immigration Appeals has denied a motion to reopen built on allegations that the respondent's hearing was tainted by improper influence over the Immigration Judge, expedited handling, and systemic bias stemming from the Board's recent reorganization. The Board called the claims "conspiracy theories and innuendo" unsupported by credible evidence, rejecting a newspaper article and supporting affidavits as insufficient because the article consisted largely of anonymously-sourced opinion and none of the affiants had firsthand knowledge of the Board's internal deliberations.

The Board held that expedited case processing does not itself suggest prejudgment, that recusals from decisions about whether to publish a ruling as precedent have no bearing on the outcome of the underlying case, and that the reduction of the Board from 28 to 15 members — which nearly tripled the annual output of published decisions — reflects efficiency rather than compromised independence. Citing Liteky v. United States, the Board reiterated that adverse rulings alone, including an unfavorable venue determination or a discretionary denial of a statutory waiver, do not establish bias.

The full text of Matter of M-K- can be found here: https://www.justice.gov/eoir/media/1462911/dl?inline

BIA Holds Immigration Judges May Pretermit Asylum Applications Without a DHS Motion

The Board of Immigration Appeals, in a precedent decision, has held that an Immigration Judge may pretermit — that is, deny without a hearing — an asylum or withholding of removal application that fails to establish a prima facie case for relief, even absent a motion from DHS. The Board reasoned that because applicants bear the burden of establishing eligibility under INA § 240(c)(4), a hearing is unnecessary where it is apparent at the outset that the evidence submitted does not meet the statutory standard, and that Immigration Judges retain broad discretion over how to manage their proceedings.

Applying that standard here, the Board found the respondent had neither alleged past persecution nor presented evidence of a future risk of persecution on account of a protected ground and affirmed the pretermission of the application without a hearing.

The full text of Matter of G-R-B- can be found here: https://www.justice.gov/eoir/media/1463256/dl?inline

BIA Orders Detention Without Bond Based on Pattern of DUI Arrests and a Domestic Assault Charge

The Board of Immigration Appeals has sustained DHS's appeal from an Immigration Judge's grant of bond, holding that the respondent failed to carry his burden under INA § 236(a) of showing he is not a danger to persons or property. The Board gave "substantial weight" to the respondent's pattern of alcohol-related driving arrests in 2021 and 2022, along with a more recent May 2026 arrest for domestic assault, and reiterated under Matter of Siniauskas that driving under the influence is a significant adverse consideration in custody determinations.

The Board acknowledged the respondent's family and community ties but held that, consistent with Matter of Adeniji, such equities generally do not mitigate a finding of dangerousness once a pattern of serious criminal conduct has been established. It vacated the Immigration Judge's bond decision and ordered the respondent detained without bond.

The full text of Matter of Roberto Morales Cuxun can be found here: https://www.justice.gov/eoir/media/1463806/dl?inline

Ninth Circuit Holds Thuraissigiam Does Not Strip Due Process Protections From Asylum Seekers Detained Far From the Border

The Ninth Circuit has affirmed a district court's denial of the government's motion to dismiss a long-running class action brought by asylum seekers subject to mandatory detention under the expedited removal statute, holding on interlocutory appeal that the court has jurisdiction over the class's constitutional challenge and that Department of Homeland Security v. Thuraissigiam does not eliminate their due process rights. The certified class consists of noncitizens who entered without inspection, were placed in expedited removal, and established credible fear of persecution or torture, but who remain subject to mandatory detention under 8 U.S.C. § 1225(b)(1)(B)(ii) without any opportunity for a bond hearing — a population DHS substantially expanded in January 2025 by designating virtually any inadmissible noncitizen apprehended anywhere in the country within two years of entry as subject to expedited removal.

On jurisdiction, the panel held that none of the four subsections of 8 U.S.C. § 1252(a)(2)(A) barred the district court from hearing the case, since the class challenged the constitutionality of the detention statute itself rather than any individual removal order, determination, or application of the statute to a particular case. On the merits of appealability, the court rejected the government's argument that Thuraissigiam forecloses the claim entirely. Writing for the majority, Judge Berzon distinguished Thuraissigiam, which involved a noncitizen apprehended 25 yards from the border moments after crossing, as limited to individuals at the "threshold of initial entry." The class here includes people apprehended tens or hundreds of miles from the border, months or up to two years after entry — well outside that narrow category. The court reaffirmed the longstanding rule that the Due Process Clause protects all persons in the United States regardless of immigration status and traced the distinction between the government's broad power over admission decisions and the much more constrained, centuries-old limits on its power to detain. Judge Friedland concurred in the judgment on the narrower ground that the class definition alone placed its members outside Thuraissigiam's scope, without reaching the admission-versus-detention analysis.

The full text of Padilla v. U.S. Immigration and Customs Enforcement can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2026/09/21/24-2801.pdf

Ninth Circuit Holds BIA's Failure to Consider Dispositive Evidence Is Reviewable Legal Error

The Ninth Circuit has granted in part a petition for review filed by a Mexican man denied reinstatement of voluntary departure, holding that the BIA committed reviewable legal error by dismissing his appeal on the ground that the record "does not reflect" proof he posted the required voluntary departure bond, even though a DHS receipt confirming payment was already in the administrative record.

The Court held that although the jurisdiction-stripping provisions governing discretionary relief generally bar review of purely factual determinations under Patel v. Garland, those provisions contain an exception for legal questions, and an agency's complete failure to consider dispositive evidence that was squarely in the record is a legal error rather than a mere factual misjudgment. The Court distinguished Patel as involving a genuine credibility or intent determination, whereas here neither party disputed that the bond was paid or that the receipt was in the file, so no factual reweighing was required to identify the BIA's oversight. The Court remanded for the BIA to consider the receipt and reassess reinstatement of voluntary departure, denying the remainder of the petition as to cancellation of removal. A partial dissent argued the BIA's error was factual, not legal, and that treating an obvious factual mistake as a legal error effectively guts Patel's jurisdictional bar.

The full text of Perez-Garcia v. Blanche can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2026/09/25/24-1092.pdf

Second Circuit Denies Rehearing En Banc, Reaffirms Section 1226 Governs Bond Eligibility for Long-Present Noncitizens

The Second Circuit has denied rehearing en banc in a habeas case challenging the bondless detention of a noncitizen who entered the United States unlawfully more than two decades ago, leaving in place the panel's holding that 8 U.S.C. § 1226, not § 1225, governs his detention and entitles him to a bond hearing. The order drew a concurrence and a dissent from denial, underscoring the live circuit split over this question.  The panel majority had held that § 1225(b)(2)(A)'s mandatory, bondless detention provision applies only to noncitizens actively "seeking admission" at the border, and that someone who has already entered the country unlawfully and remained for years is not seeking admission in that sense, so he falls instead under § 1226(a)'s discretionary detention scheme.

The full text of Barbosa da Cunha v. Freden can be found here: https://ww3.ca2.uscourts.gov/decisions/OPN/25-3141_complete%20en%20banc_opn.pdf

First Circuit Largely Upholds Nationwide Class Relief Requiring Notice Before Third-Country Removals

The First Circuit has largely affirmed a final judgment obtained by a certified class of noncitizens with final removal orders, holding that DHS's policy of removing class members to "third countries" not named in their removal orders or prior proceedings violates the Administrative Procedure Act because it fails to provide effective notice and a meaningful opportunity to raise fear-of-persecution and fear-of-torture claims regarding the new destination. The class had challenged DHS guidance that permitted removal to a third country with no notice at all where the State Department deemed the receiving country's diplomatic assurances credible, and with as little as twenty-four hours' notice otherwise.

The Court held that the statutory and regulatory scheme governing withholding of removal and CAT protection implicitly requires effective notice and a meaningful opportunity to be heard before any third-country removal, reasoning that the right to avoid removal to a country where one fears persecution or torture means little without advance notice of the actual destination, and invoking the canon of constitutional avoidance to reach that reading. The Court rejected each of DHS's jurisdictional arguments, holding that neither § 1252(g)'s bar on review of decisions to "execute removal orders" nor § 1252(b)(9)'s claim-channeling provision applied, since the class was not challenging its removability or the execution of its removal orders but rather DHS's failure to follow required procedures when redirecting removal to an unnamed third country. The Court also held that its own precedent in Brito v. Garland forecloses any argument that § 1252(f)(1)'s bar on class-wide injunctions extends to declaratory relief or APA vacatur, and it upheld the district court's Rule 23(b)(2) class certification. The Court did, however, vacate the portion of the judgment requiring DHS to first attempt removal to a class member's designated country or country of citizenship before resorting to a third country, holding that none of the four named plaintiffs had standing to raise that particular "sequencing" claim.

The full text of D.V.D. v. U.S. Department of Homeland Security can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/26-1212P-01A.pdf

Ninth Circuit Holds Jurisdiction-Stripping Bar for CNMI Long-Term Resident Status Extends to USCIS Denials

The Ninth Circuit has affirmed the dismissal, for lack of subject-matter jurisdiction, of a challenge brought by a long-term Northern Mariana Islands resident to USCIS's denial of his application for NM-1 status, a special immigration status created for CNMI residents left without lawful status after federal immigration law was extended to the territory. The petitioner argued that the statute's jurisdiction-stripping provision, which bars review of "any decision of the Secretary of Homeland Security" on an NM-1 application, applies only to decisions made by the Secretary personally, not to USCIS acting under delegated authority.

The Court rejected that argument, holding that because the petitioner conceded the Secretary validly delegated his NM-1 adjudicatory authority to USCIS, a decision by USCIS is functionally a decision of the Secretary for purposes of both the statute's grant of adjudicatory authority and its bar on judicial review. The Court found this reading reinforced by the Supreme Court's and every other circuit's consistent, if largely unstated, assumption that similarly worded jurisdiction-stripping provisions naming only an agency head extend to decisions made by that official's delegates, and held that because the statutory text was unambiguous, the general presumption favoring judicial review of agency action did not apply.

The full text of Barman v. United States can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2026/09/14/24-464.pdf

BIA Reverses CAT Grant Where Respondent Failed to Corroborate Claimed Sexual Orientation

The Board of Immigration Appeals has sustained DHS's appeal from a grant of CAT deferral to a Guinean respondent whose asylum status had been terminated based on a Minnesota conviction for criminal sexual conduct that the immigration judge found to be a particularly serious crime, holding that the respondent's claimed sexual orientation, the basis for his CAT claim, was not credible and was inadequately corroborated.

The Board held that the respondent's description of only one same-sex relationship, with a former cellmate and no further detail, his otherwise exclusively opposite-sex relationships including the one underlying his criminal conviction, and his shifting self-descriptions as homosexual, bisexual, and gay undermined his claim, and that he provided no independent letters, affidavits, or other corroboration despite years of residence in the United States. The Board also rejected the respondent's separate procedural challenges, including his argument that the immigration judge should have qualified his expert witness on additional subjects, finding no prejudice from any of the claimed errors, and ordered him removed to Guinea.

The full text of Matter of S-K-E- can be found here: https://www.justice.gov/eoir/media/1460421/dl?inline

BIA Holds Street Racing and Resisting Arrest Established Danger to the Community in Bond Proceedings

The Board of Immigration Appeals has sustained DHS's appeal from a $15,000 bond grant to a Kyrgyz respondent, holding that his recent arrests for driving on a license suspended for street racing, resisting arrest, and possessing contraband in jail demonstrated he had not met his burden of proving he is not a danger to the community.

The Board held that the immigration judge's finding that the respondent would not reoffend because he had "a lot to lose" was speculative and contradicted by his own recent conduct, and that a state court's decision to release him on his own recognizance did not bind the immigration judge's separate dangerousness assessment. Because a finding of dangerousness alone is dispositive of bond eligibility, the Board ordered the respondent detained without bond without reaching the question of flight risk.

The full text of Matter of Kamalov can be found here: https://www.justice.gov/eoir/media/1460501/dl?inline

BIA Holds Redacted Inter-Proceeding Declarations May Be Used Without Cross-Examination to Challenge Credibility

The Board of Immigration Appeals has sustained DHS's appeal from a grant of asylum to an Indian political-opinion applicant, holding that the immigration judge clearly erred by discounting twelve redacted declarations from unrelated asylum cases that DHS submitted to show suspicious, boilerplate-style similarities to the respondent's own declaration.

The Board held that redacting personally identifying information from inter-proceeding declarations sufficiently protects the other applicants' privacy under the asylum confidentiality regulation and clarified that the procedural safeguards for inter-proceeding comparisons do not require the other declarants to be made available for cross-examination, since the declarations are offered only to show textual similarities, not for the truth of their contents. The Board also held that the harm the respondent described, two assaults requiring only minor treatment, did not rise to the level of persecution as a matter of law, and remanded for the judge to reassess credibility using the correct word-and-phrase comparison framework and to address withholding and CAT relief in the first instance.

The full text of Matter of V-S-A- can be found here: https://www.justice.gov/eoir/media/1460841/dl?inline

BIA Overrules Precedent, Holds Aggravated Felons Are Inadmissible as

The Board of Immigration Appeals has dismissed the appeal of a Nicaraguan woman convicted of federal identity theft and access-device fraud offenses, holding for the first time that any noncitizen with an aggravated felony conviction is inadmissible as a person "permanently ineligible to citizenship," since an aggravated felony conviction forever bars the good moral character required for naturalization.

The Board expressly overruled its decades-old precedent in Matter of Kanga, which had limited that inadmissibility ground to military draft evaders, holding that decision failed to apply the plain, forward-looking text of the INA's definition of "ineligible to citizenship." Because this represents a significant and reasonably unanticipated change in the law, the Board applied its new holding only prospectively, to aggravated felony convictions entered after the date of the decision, and on the merits affirmed the denial of a § 212(h) waiver, adjustment of status, and CAT protection to the respondent based on her extensive fraud-related criminal history.

The full text of Matter of A-V-O- can be found here: https://www.justice.gov/eoir/media/1461651/dl?inline

Ninth Circuit Holds the Persecutor Bar Contains No Implied Duress Defense

The Ninth Circuit has denied a petition for review filed by a Salvadoran man denied special rule cancellation of removal after evidence showed he had served in a Salvadoran army battalion linked to civil war-era atrocities, holding that the statutory persecutor bar contains no implied defense for those who assisted in persecution under duress.

Giving only limited weight to the Attorney General's own interpretation given its inconsistent history on the question, the Court nonetheless independently concluded that the ordinary meanings of "assisted" and "otherwise participated" encompass involuntary conduct, and that Congress's explicit use of "voluntarily" in numerous neighboring INA provisions, but not in the persecutor bar, confirms the omission was intentional. The Court held that international refugee law materials cited by the petitioner and amici showed a duress defense is a possible and sensible reading, but not one Congress actually wrote into the statute, and it denied the petition based on the immigration judge's unchallenged finding that the petitioner was not credible.

The full text of Perez-Castillo v. Blanche can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2026/09/08/21-70087.pdf

Ninth Circuit Holds Parole for Waitlisted U-Visa Petitioners Is Discretionary, Not Mandatory

The Ninth Circuit has affirmed in large part the dismissal of claims brought by more than 150 U-visa petitioners against USCIS, holding that the regulation governing the U-visa waiting list gives the agency discretion, not a mandatory duty, to grant advance parole to domestic petitioners who have already received deferred action.  However, the Court held the district court erred in rejecting, without full consideration, the alternative injury theories of petitioners whose petitions had merely been deemed "bona fide" rather than placed on the formal waiting list, and remanded for further proceedings on whether those petitioners have standing to challenge delays in obtaining a full waitlist determination.

The full text of U Visa Appellants v. Director, USCIS can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2026/09/14/24-6824.pdf

Ninth Circuit Holds In Absentia Order Violated Due Process Where

The Ninth Circuit has granted a petition for review filed by a Mexican man ordered removed in absentia after the government's only hearing notice was mailed to a residential address his relatives provided on a bond form asking where he would "reside," not his mailing address, and the notice was returned undeliverable.

The Court held that the government violated due process by relying on an address obtained by asking the wrong person the wrong question, and by taking no further steps after the notice came back undeliverable, particularly where the petitioner's sworn, uncontradicted statement said he had told the court his address to receive notices. The Court found additional practicable alternatives were obviously available, such as calling the phone number on the bond form, and remanded without need for further factfinding. A dissenting judge argued the record did not actually show the petitioner gave the government a correct mailing address and would have remanded to the agency to determine in the first instance what alternative notice steps were practicable.

The full text of Meza Medina v. Blanche can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2026/09/18/20-70017.pdf

Seventh Circuit Denies Petition for Failure to Exhaust Arguments Before the Board

The Seventh Circuit has denied a petition for review filed by a Mexican mother and her children who fled after the Knights Templar cartel threatened to kidnap the children unless a ransom was paid, holding that the petitioner forfeited her arguments on appeal by failing to adequately develop them before the Board.

Although the immigration judge found the petitioner credible, the Court held that her four-paragraph brief to the Board never articulated her proposed social group, never engaged with the judge's finding that the cartel's threats were motivated by ordinary extortion rather than a protected ground, and never challenged the judge's findings on internal relocation or an objectively reasonable fear of future harm. Because exhaustion requires presenting an argument with enough detail to give the Board a fair opportunity to address it, not merely referencing the adverse ruling, the Court held her asylum, withholding, and CAT claims were all foreclosed.

The full text of Gonzalez Perez v. Blanche can be found here: https://media.ca7.uscourts.gov/cgi-bin/OpinionsWeb/processWebInputExternal.pl?Submit=Display&Path=Y2026/D09-08/C:23-2811:J:Rovner:aut:T:fnOp:N:3604650:S:0

Second Circuit Holds Reinstatement Orders Are Reviewable and CBP May Reopen Them

The Second Circuit has denied in part and granted in part a petition for review filed by a Brazilian man detained under a 2017 reinstated removal order, reaffirming that reinstatement orders are final orders of removal subject to judicial review.

The Court held that the petitioner's direct challenge to his six-year-old reinstatement order was untimely and that he failed to show the diligence needed for equitable tolling but separately held that 8 C.F.R. § 103.5 gives CBP authority to reopen or reconsider its own reinstatement decisions, rejecting the government's argument that the regulation is limited to USCIS benefits proceedings. Because CBP denied the petitioner's motion solely on the mistaken belief that it lacked any mechanism to reopen a reinstatement order, the Court remanded for the agency to consider the motion on its merits.

The full text of Santos v. Blanche can be found here: https://ww3.ca2.uscourts.gov/decisions/OPN/23-7191_complete_opn.pdf

Second Circuit Holds Conspiracy to Present a Baseless Immigration Document Is a Crime Involving Moral Turpitude

The Second Circuit has denied a petition for review filed by a Filipino lawful permanent resident convicted of knowing making or presenting materially false statements to immigration authorities, which categorically constitutes a crime involving moral turpitude.

The Court held that knowingly presenting to immigration authorities a required document that the presenter knows lacks any reasonable basis in law or fact is inherently deceitful conduct that impairs an important government function, satisfying the BIA's two-part definition of moral turpitude, which the Court adopted as its own post-Loper Bright. The Court rejected the petitioner's argument that the subclause could sweep in innocent conduct, explaining that his own hypotheticals, such as filing a meritless asylum application solely to access cancellation-of-removal proceedings, themselves qualified as CIMTs, and distinguished the statute from misprision of a felony, which the Court has previously held is not categorically a CIMT because it lacks any intent element.

The full text of Nemis v. Blanche can be found here: https://ww3.ca2.uscourts.gov/decisions/OPN/25-304_opn.pdf

BIA Holds Maduro's Removal From Power Is a Changed Country Condition Requiring Reassessment of Venezuelan Asylum Claims

The Board of Immigration Appeals has sustained DHS's appeal from a grant of asylum to a Venezuelan woman whose claim rested on her political opposition to former President Nicolás Maduro's government, holding that Maduro's January 2026 removal from power and the transfer of executive authority to an Interim Government constitute a change in country conditions that the immigration judge failed to adequately assess against the respondent's individual circumstances.

The Board held that a change in national leadership does not automatically eliminate a well-founded fear of persecution, since officials or security forces tied to a former regime may still pose a danger to a particular applicant, but that the immigration judge's conclusory statements that "the essence of the Maduro government remains" lacked the factual findings needed to support that conclusion here. The Board took administrative notice of the reopening of the U.S. embassy in Caracas and ongoing U.S.-brokered discussions toward a democratic transition and remanded for the judge to determine whether the individuals and institutions the respondent fears remain willing and able to target her under the new political circumstances. The Board also flagged that the judge never resolved whether the respondent's asylum application, filed under her own name only in March 2026 despite having been a derivative beneficiary on her husband's 2015 filing, satisfied the one-year filing deadline or an exception to it, and remanded for that threshold question to be addressed first.

The full text of Matter of A-E-V-M- can be found here: https://www.justice.gov/eoir/media/1460306/dl?inline