BIA Construes Realistic Probability Test

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:

https://www.justice.gov/eoir/media/1409436/dl?inline

BIA Finds Inconsistent Address Information to Support Flight Risk Finding

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:

https://www.justice.gov/eoir/media/1410181/dl?inline

BIA Presumes Non-Detained Respondent with Private Attorney can Pay Appeal Filing Fees

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:

https://www.justice.gov/eoir/media/1410586/dl?inline

BIA Overturns Bond Grant to Respondent with Pending Drug Trafficking Charges

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:

https://www.justice.gov/eoir/media/1411216/dl?inline

BIA Affirms Asylum Denial based on Lack of Corroboration

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:

https://www.justice.gov/eoir/media/1411476/dl?inline

BIA Overturns Hardship Finding for Cancellation Applicant whose Children Suffer Developmental Delays and Autism

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:

https://www.justice.gov/eoir/media/1411661/dl?inline

Eleventh Circuit Applies Substantial Evidence Review to Hardship Determination

The Eleventh Circuit has determined that the agency’s determination that an applicant for cancellation of removal for nonlawful permanent residents has not established the required hardship to a qualifying relative is subject to substantial evidence review.

The full text of Lopez-Martinez v. Attorney General can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/202310105.pdf

Tenth Circuit Permits 15 Day Filing Deadline

The Tenth Circuit has upheld an Immigration Judge’s decision to only permit a non-citizen 15 days to complete and file an asylum application.

The full text of Chavez-Govez v. Bondi can be found here: https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111277207.pdf

Tenth Circuit Finds BIA Improperly Rejected Notice of Appeal

The Tenth Circuit has determined that the Board of Immigration Appeals improperly rejected a notice of appeal where the attorney did not sign the certificate of service line because the notice of appeal was submitted through ECAS, and thus, automatically served on Homeland Security.

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

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111277109.pdf

Tenth Circuit Rejects BIA's Family-Based PSG Analysis

The Tenth Circuit has rejected the agency’s analysis of family-based particular social groups. “Accordingly, we hold the BIA’s stated rule for family-based nexus claims is contrary to the INA because its categorical formulation runs counter to the INA’s ‘at least one central reason’ standard. But we find no error in the BIA’s ‘means-ends’ framing in its discussion of the INA’s motive requirement.”

“The BIA’s stated nexus standard improperly disallows mixed-motive claims. This unlawful standard governs a dispositive issue and appears in a published three-judge BIA opinion, so it serves as precedent in all agency-level proceedings involving the same issue.”

“When applied, this unlawful standard improperly requires the agency to ignore evidence in the asylum applicant’s favor. According to its plain terms, once the agency determines a persecutor is targeting members of a certain family as a means of achieving some other ultimate goal unrelated to the protected ground, the analysis stops, and family membership must then be incidental or subordinate to that other ultimate goal and therefore not one central reason for the harm—full stop. The BIA’s erroneous legal standard thereby deems some facts legally irrelevant: it requires the agency to disregard other possible motives as soon as the antecedent (“if”) condition is satisfied. As the C.R. family put it, under this new rule, ‘any record evidence establishing that family was at least one central reason for harm [i]s categorically insufficient for asylum seekers to meet their burden of proof in establishing nexus’ once an unprotected-ground related motive is found. We have rejected that analytical shortcut, as motives that are unrelated to protected grounds do not negate possible motives related to protected grounds.”

The full text of O.C.V. v. Bondi can be found here:

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111288784.pdf

Fifth Circuit finds that Filing Deadline in 8 U.S.C. § 1503(a) is Non-Jurisdictional

The Fifth Circuit has determined that the 30 day filing deadline in 8 U.S.C. § 1503(a) is a claims processing rule. The court further determined that “a denial of a timely motion to reconsider or motion to reopen may serve as the final administrative denial on a particular claim. If the motion is untimely, then the AAO decision is final.”

The full text of Villegas Sarabia v. Noem can be found here:

https://www.ca5.uscourts.gov/opinions/pub/24/24-50750-CV0.pdf

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