Fourth Circuit Addresses Standards for Ineffective Assistance of Counsel

The Fourth Circuit has determined that whether an attorney has rendered ineffective assistance of counsel requires an evaluation of whether counsel was “reasonably competent.” Noting that the petitioner’s counsel at trial proffered a particular social group that was “dead on arrival” under Fourth Circuit precedent, and failed to proffer two applicable and cognizable social groups identified by later counsel, the court determined that trial counsel did not act in a reasonably competent manner.

The full text of Guandique-de Romero v. Bondi can be found here:

https://www.ca4.uscourts.gov/opinions/241154.P.pdf

Fourth Circuit Remands for Further Analysis of PSG

The Fourth Circuit has remanded an asylum appeal, finding inadequate the agency’s determination that the particular social group was circular because it referenced the persecution suffered.

“Here, the BIA found that Guardado’s first PSG was impermissibly defined in a circular fashion by the harm to its constituent members. While we agree that a PSG cannot be defined exclusively by the harm its members face (i.e., the anti-circularity requirement), we join a growing consensus of our sister circuits in recognizing that the BIA cannot simply claim circularity in a perfunctory manner.” In other words, the BIA cannot make a conclusory judgment that a PSG is circular per se. In place of such a superficial quick look at the words used,’ the BIA must perform a substantive analysis: it must determine what underlying characteristics account for the fear and vulnerability’ of the group, and whether the society views those characteristics as distinct.

This substantive analysis is necessary for a host of reasons. First, although the cognizability of a proposed PSG presents a question of law, this question is analyzed through a fact-based inquiry made on a case-by-case basis. Second (and relatedly), whether a group exists independently of the harm alleged is not always so apparent and depends on the facts of the particular case. Third, we see no logic or reason behind the assertion that abuse cannot do double duty, both helping to define the group, and providing the basis for a finding of persecution. And finally, even if a PSG is largely defined by persecution, a group that exists independent of persecution is simply a group that shares an immutable characteristic other than the persecution it suffers.”

The full text of Hernandez Guarado v. Bondi can be found here:

https://www.ca4.uscourts.gov/opinions/232286.P.pdf

Fourth Circuit Construes Firearms Trafficking Aggravated Felony Ground

The Fourth Circuit has determined that the illicit trafficking in firearms aggravated felony ground requires “unlawful trading or dealing in firearms.”

The full text of Alvarez Ronquillo v. Bondi can be found here:

https://www.ca4.uscourts.gov/opinions/241324.p.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

Second Circuit Affirms that NY Second-Degree Sexual Abuse is Aggravated Felony

The Second Circuit has reaffirmed that a New York conviction for second-degree sexual abuse is a child sexual abuse aggravated felony.

The full text of Garcia Pinach v. Bondi can be found here: https://ww3.ca2.uscourts.gov/decisions/isysquery/117ad671-34e9-4aaf-96ca-50888f6f73f9/42/doc/22-6421_opn

Second Circuit Finds that Former Asylee not Eligible for 209 Adjustment

The Second Circuit has determined that a non-citizen can only apply for adjustment of status under section 209 of the INA if he still maintains his asylum status. The court reaffirmed that the Immigration Judge has the authority to defer termination of asylum in order to permit the non-citizen to file for adjustment.

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

https://ww3.ca2.uscourts.gov/decisions/isysquery/117ad671-34e9-4aaf-96ca-50888f6f73f9/38/doc/22-6247_23-6289_complete_opn.pdf

CA Appellate Court Finds that Green Card Holder did not Meaningfully Understand Consequences of Plea when Defense Counsel did not Provide Advice

The California Court of Appeal, Fourth District, has found that a green card holder did not meaningfully understand the consequences of his plea when his defense attorney told him that he was not an immigration lawyer and that he might need to hire one.

“Benitez testified that he did not understand that the narcotics charges he was pleading guilty to (possession for sales and transportation of a controlled substance) were aggravated felonies under federal law, which require mandatory deportation. Benitez’s testimony in this regard is bolstered by Reed’s testimony that he routinely advised noncitizen defendants to consult with immigration attorneys. Based on his testimony, Reed appeared to be wholly unaware of what constituted an aggravated felony under federal law. Reed also seemed to mistakenly focus on the fact that Benitez was pleading guilty to felony crimes rather than misdemeanor crimes; however, a state’s classification of crimes is not of paramount concern under federal immigration laws, the critical issue is whether the crime is an aggravated felony or not.”

The full text of People v. Benitez-Torres can be found here:

http://sos.metnews.com/sos.cgi?0725//G063400

BIA Reverses Grant of CAT to Bisexual Individual with Gang Tattoos and Criminal History from El Salvador

The Board of Immigration Appeals has reversed a grant of protection under the Convention Against Torture to a bisexual Salvadoran with a criminal history and gang tattoos.

“The Immigration Judge did not clearly err in finding that the applicant is a bisexual criminal deportee with visible gang tattoos. Further, the Immigration Judge did not clearly err in finding that if the applicant is removed, he will likely be detained upon his arrival in El Salvador pursuant to the state of exception policy because he will be identified as a suspected gang member deported from the United States with numerous gang-related tattoos and a criminal history. The record establishes that the applicant has a serious criminal history in the United States, and the information about his criminal history would likely be shared with the Salvadoran Government through the Criminal History Information Sharing Program between the United States and El Salvador. Further, the evidence establishes a history of widespread detention of prior and suspected gang members in El Salvador.”

“In finding that the applicant would suffer harm satisfying the definition of torture in detention, the Immigration Judge relied heavily on statistical information and country conditions evidence showing that some detainees and suspected gang members have been subjected to mistreatment, torture, or death while in detention. However, the Immigration Judge relied on a relatively small number of anecdotal incidents of mistreatment or death that fall well short of supporting a clear probability of torture. Overall, out of a total prison population of approximately 95,000 detainees as of November 2022, the Salvadoran Government documented 90 deaths in custody, some of which were attributable to lack of access to medication. Even if the actual number of abuses and deaths is higher than that documented by the Salvadoran Government, the evidence still demonstrates that only a small percentage of detainees died out of the tens of thousands detained.”

“Moreover, the Immigration Judge’s finding that numerous detainees have died in detention does not establish that public officials caused those deaths or that the unspecified human rights abuses rise to the level of torture. The substandard prison conditions referenced by the Immigration Judge, which may include severe overcrowding and lack of food, do not amount to torture as a matter of law unless ‘specifically intended to inflict severe physical or mental pain or suffering.’”

The full text of Matter of A-A-F-V- can be found here:

https://www.justice.gov/eoir/media/1406751/dl?inline

BIA Reverses CAT Grant to Russian Citizen

The Board of Immigration Appeals has reversed a grant of protection under the Convention Against Torture to a Russian citizen who was supportive of Ukraine and who had twice been detained by the FSB, finding that the record supported the Immigration Judge’s finding that the applicant might be detained and interrogated upon arrival in Russia, there was insufficient evidence that this treatment would rise to the level of torture.

The full text of Matter of E-Z- can be found here:

https://www.justice.gov/eoir/media/1407026/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

BIA Reverses CAT Grant to Mentally Ill Haitian Man with Criminal Record

The Board of Immigration Appeals has reversed a grant of protection under the Convention Against Torture to a severely mentally ill Haitian man, deemed incompetent in removal proceedings. The BIA noted that the expert witness “could not estimate how many criminal deportees were incarcerated or killed in 2022 or 2023. Anecdotal reports of some criminal deportees being indefinitely detained in torturous conditions are insufficient to establish that the respondent is more likely than not to have that experience.“ The BIA also noted that the prison officials in Haiti lack an understanding of mental illness. Therefore, “[t]he respondent’s failure to show that Haitian officials are intentionally and deliberately creating and maintaining the harsh detention conditions that he fears for the specific purpose of inflicting severe pain or suffering warrants reversal of the grant of his application for CAT protection.”

The full text of Matter of S-S- can be found here:

https://www.justice.gov/eoir/media/1407581/dl?inline

BIA Reverses Bond Grant to Applicant Convicted of Aggravated Assault

The Board of Immigration Appeals has reversed the grant of bond to a non-citizen recently convicted of aggravated assault, noting that the conviction involved “the applicant’s decision to engage in violent behavior against her partner by pouring alcohol on his back and setting him on fire using a cigarette. The victim sustained burns on his head, face, and torso and had to be placed in a medically-induced coma.”

The full text of Matter of C-M-M- can be found here:

https://www.justice.gov/eoir/media/1407986/dl?inline

BIA Rejects Gender-Based PSG

The Board of Immigration Appeals has determined that a particular social group defined by the alien’s sex or sex and nationality, standing alone, is overbroad and insufficiently particular to be cognizable. The reasoning provided is pretty hollow. The BIA attempts to distinguish the Ninth Circuit’s decision in Perdomo v. Holder by stating it predates the three part immutability-social distinction-particularity test laid out in Matter of M-E-V-G-, but the BIA established these three criteria in much earlier decisions that pre-date Perdomo. The BIA then fell back on its analysis that women of a particular nationality encompass too broad of a group with differing ages, socioeconomic statuses, etc. to be particularized. The BIA further concluded that recognizing a sex-based particular social group would impermissibly create a sixth protected group for asylum.

In a post-Chevron world, this decision just screams for a circuit court to roundly obliterate the absurdity of the BIA’s particular social group caselaw.

The full text of Matter of M-E-S-G- can be found here:

https://www.justice.gov/eoir/media/1408366/dl?inline

Ninth Circuit Suggests that Non-Citizen Challenge Denial of U Adjustment of Status in Future Removal Proceedings

The Ninth Circuit has determined that a District Court lacks jurisdiction over a challenge to USCIS’s authority to require U visa holders to submit medical exams with their adjustment of status applications under INA 245(m). The Court recognized that generally, USCIS has exclusive jurisdiction over 245(m) adjustment applications. Nonetheless, the Court suggested that “Cabello will be able to argue in any future removal proceedings before an IJ or later petition for review in a court of appeals that some adjudicator—the IJ, BIA, the court of appeals, or any or all of them—must be able to review her denial of § 1255(m) relief as a matter of due process.”

The full text of Cabello Garcia v. USCIS can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/07/22/23-35267.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

BIA Reverses Termination to Seek Parole for CAA

The Board of Immigration Appeals has reversed a judge’s termination of proceedings, finding that termination is not appropriate for a respondent who was not admitted or paroled to seek humanitarian parole from USCIS, and eventually, apply for status under the Cuban Adjustment Act.

The full text of Matter of Roque-Izada can be found here:

https://www.justice.gov/eoir/media/1404086/dl?inline