First Circuit Addresses Termination of Parole Programs

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

First Circuit Remands CAT Claim

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

First Circuit finds Doctrine of Consular Nonreviewability does not Bar Review of Visa Category Reclassification

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

First Circuit Remands for BIA to Provide Further Analysis of Request to Accept Late Filed Brief

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

First Circuit Finds no Jurisdiction to Review One-Year Filing Deadline Exception

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

BIA Discourages Continuances

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:

https://www.justice.gov/eoir/media/1412281/dl?inline

Third Circuit Finds no Jurisdiction to Review BIA Certification Determination

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:

https://www2.ca3.uscourts.gov/opinarch/191167p1.pdf

Second Circuit Finds that FL AttemptedSecond Degree Murder Conviction is Crime of Violence

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:

https://ww3.ca2.uscourts.gov/decisions/isysquery/be3b17b7-ac65-4eff-abe1-2ec823cacddb/6/doc/23-8120_opn.pdf

CA Appellate Court Extends Right to Counsel to Non-Detained Movants

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:

http://sos.metnews.com/sos.cgi?0825//B337683

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