BIA Issues Ridiculous Decision on CA Vacatur Order

The Board of Immigration Appeals (BIA) has issued what I can only characterize as an absurd decision regarding a California vacatur order. The order cited California Penal Code sections 1016.5 and 1473.7 as the basis for the plea withdraw. Penal Code section 1016.5 is the code section that requires criminal courts to provide immigration warnings to defendants taking plea deals. I have never heard a single immigration official question that vacaturs under this code section are viable for immigration purposes. Penal Code section 1473.7, as the BIA noted, has three bases for vacatur: 1) an error resulting in a failure to meaningfully understand the immigration consequences of a plea; 2) evidence of actual innocence; and 3) a plea or sentence entered as a result of racial, ethnic, or national origin discrimination. The BIA complained that the respondent in this matter obtained an order that specified vacatur under sections 1016.5 and 1473.7, but did not specify which subsection of 1473.7. Though it acknowledged that subsection (a)(1) (failure to understand the immigration consequences) is cognizable for immigration purposes, it implied that vacaturs for actual innocence or racial discrimination might not be vacaturs due to “legal or procedural errors.” The BIA wholesale ignored the reference to section 1016.5 in the vacatur order.

It’s overall a bad decision, with very poor legal analysis. I am hopeful it will be overturned on appeal. In the meantime, lawyer friends, make sure you add that “(a)(1)” to the end of your vacatur orders.

The full text of Matter of de Jesus-Platon can be found here: https://www.justice.gov/d9/2025-02/4086_0.pdf

BIA Narrows Definition of "Single Scheme" for CIMT Deportability

The Board of Immigration Appeals (BIA) has narrowed the instances in which two crimes involving moral turpitude will be considered part of the same scheme. The BIA has said that crimes that immediately follow one another are not necessarily part of the same scheme - in this case, the non-citizen was convicted of assault with a deadly weapon and failure to render aid when he hit pedestrians with his car and kept driving. Rather, crimes will only be arising out of a single scheme if: 1) one crime is a lesser offense of the other; 2) he defendant performs a single act that concurrently harms multiple victims in essentially the same way (i.e., robbing multiple people at once); or 3) are acts that occur within a comparatively short time of each other, involve the same parties, and the first act or acts are committed for the purpose of making possible the specific criminal objective accomplished by the last of the criminal acts (i.e., assaulting a guard to commit a larceny).

The full text of Matter of Baeza-Galindo can be found here: https://www.justice.gov/d9/2025-02/4085.pdf

Eleventh Circuit Construes Former Derivative Citizenship Statute

The Eleventh Circuit has concluded that the requirements of former section 321(a) of the Immigration and Nationality Act are not met when the citizen mother re-married the non-citizen father prior to her naturalization, even though the mother naturalized before the child’s 18th birthday, and had earlier separated from the non-citizen father. Because the mother re-married the non-citizen father prior to her naturalization, not all of the elements of derivative citizenship (namely, a legal separation from the non-citizen parent) when the last element (the mother’s naturalization) took place.

The full text of Turner v. Attorney General can be found here: https://media.ca11.uscourts.gov/opinions/pub/files/202211207.pdf

Fourth Circuit Reverses BIA Denial of CAT to Honduran Man Attacked by Gang Members

The Fourth Circuit has reversed the Board of Immigration Appeals’ reversal of an Immigration Judge’s grant of protection under the Convention Against Torture. The applicant was shot by gang members and his family members threatened and attacked by gang members. During one of these incidents, the gang members were accompanied by a man in a military uniform.

The full text of Funez-Ortiz v. McHenry can be found here: https://www.ca4.uscourts.gov/opinions/232290.P.pdf

BIA Holds Attorney Responsible for Missing Electronic Notice that went to Spam

The Board of Immigration Appeals has determined that an attorney is at fault for missing a briefing schedule that was in her spam folder.

“The respondents argue that the Board’s prior decision rests on the factually incorrect premise that they were granted the opportunity to submit a brief or statement in support of the appeal. Specifically, the respondents argue that they expected the briefing schedule to be sent in paper form as the Notice of Appeal was filed in paper form and the appeal receipt notice from the Board was sent in paper form. While the respondents acknowledge that their counsel was served electronically with the briefing schedule, they assert that notice of the briefing schedule was delivered to their counsel’s spam folder and was not seen until after the Board dismissed the appeal. They argue reconsideration is warranted because they did not receive constructive or actual notice that their appeal had become an electronic record of proceedings, and they were operating under the expectation that all future correspondence from the Board would be in paper form.”

“We are not persuaded by the respondents’ claim that they were not provided actual or constructive notice that their case was electronic before the Board. On December 13, 2021, while the respondents were in removal proceedings before the Immigration Judge, EOIR announced through the issuance of a final rule that effective February 11, 2022, electronic filing would be mandatory before the Immigration Judge and the Board for cases eligible for electronic filing. See 86 Fed. Reg. at 70708, 70720–22. The instant case is a case eligible for electronic filing because it has an electronic record of proceedings. See 8 C.F.R. § 1001.1(cc) (2025). More importantly, the administrative record reflects that the case was eligible for electronic filing before the Immigration Judge and the respondents, represented by the same law firm below, both filed documents electronically and received electronic service of other EOIR-generated documents. Under these circumstances, the respondents had sufficient notice that their appeal was subject to the regulations regarding electronic service. “

The full text of Matter Arciniegas-Patino can be found here: https://www.justice.gov/d9/2025-01/4084.pdf

Ninth Circuit Finds that NV Conviction for Felony Battery Resulting in Substantial Bodily Harm is Crime of Violence

The Ninth Circuit has determined that. Nevada conviction for felony battery resulting in substantial bodily harm is a crime of violence.

The full text of Villagomez v. McHenry can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/01/24/23-3558.pdf

Ninth Circuit Finds that CA Witness Intimidation is an Aggravated Felony

The Ninth Circuit has determined that a California conviction for dissuading a witness by force or fear qualifies an obstruction of justice aggravated felony if accompanied by a sentence of at least one year of incarceration. In so doing, the Court analyzed the conduct criminalized by all three subsections of California Penal Code section 136.1, and found they all match the generic definition of obstruction of justice.

The full text of Godoy-Aguilar v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/01/13/19-70960.pdf

Fifth Circuit Finds DACA Unlawful

The Fifth Circuit has issued a decision finding the employment authorization and lawful presence benefits of the Deferred Action for Childhood Arrivals (DACA) program to be unlawful. However, the Court also determined that only the state of Texas had shown any injury from the program, and thus, it limited its injunction to that state, leaving the legality of the program in other parts of the country untouched. Finally, the Court stayed its own decision to permit the parties the opportunity to appeal. Thus, the state of DACA for now remains the same - those with DACA can renew it nationwide, but USCIS cannot approve new applications.

The full text of Texas v. United States can be found here:

https://www.ca5.uscourts.gov/opinions/pub/23/23-40653-CV0.pdf

Third Circuit Finds that PA Felony Eluding Statute is Divisible

The Third Circuit has determined that a Pennsylvania statute criminalizing eluding the police as a felony is divisible between three grading factors. The Court further found that the third grading factor could be violated by a driver who recklessly flees or attempts to elude law enforcement in an attempt to transport himself or another person to a hospital would still violate the statute. This conduct is not reprehensible, and thus, the statute is not a categorical match to the definition of a crime involving moral turpitude.

The full text of Ndungu v. Attorney General can be found here: https://www2.ca3.uscourts.gov/opinarch/202562p.pdf

Third Circuit Finds that Jurisdiction Stripping Provision in 8 USC 1252 Applies Outside Removal Proceedings

The Third Circuit has determined that the jurisdiction stripping provisions in 8 U.S.C. 1252(a)(2)(B) apply to appeals that arise outside of the petition for review process. Accordingly, the court found that federal courts lacked jurisdiction to review a challenge under the Administrative Procedure Act to USCIS’s policy of holding an adjustment of status application in abeyance when the priority date retrogresses during the pendency of hte permanent residency application.

The full text of Geda v. United States Citizenship and Immigration Services can be found here:

https://www2.ca3.uscourts.gov/opinarch/232195p.pdf

DHS Extends TPS for Ukraine, Sudan, El Salvador, and Venezuela

The Department of Homeland Security has extended Temporary Protected Status for citizens of Ukraine, Sudan, El Salvador, and Venezuela.

The extension of TPS for Ukraine allows approximately 103,700 current eligible beneficiaries to re-register for TPS, if they continue to meet eligibility requirements. Re-registration is limited to individuals who previously registered for TPS under Ukraine’s designation. This population includes nationals of Ukraine (and individuals without nationality who last resided in Ukraine) who have been continuously residing in the United States since at least August 16, 2023, with or without lawful immigration status. The official announcement can be found here: https://www.dhs.gov/news/2025/01/10/dhs-extend-temporary-protected-status-ukraine

The extension of TPS for Sudan allows approximately 1,900 current eligible beneficiaries to re-register for TPS, if they continue to meet eligibility requirements. Re-registration is limited to individuals who previously registered for TPS under Sudan’s designation. This population includes nationals of Sudan (and individuals without nationality who last resided in Sudan) who have been continuously residing in the United States since at least August 16, 2023, with or without lawful immigration status. The official announcement can be found here: https://www.dhs.gov/news/2025/01/10/dhs-extend-temporary-protected-status-sudan#:~:text=After%20reviewing%20the%20country%20conditions,including%20direct%20attacks%20on%20civilians.

Venezuelan individuals may be eligible if they have continuously resided in the United States on or before July 31, 2023: https://www.dhs.gov/news/2025/01/10/dhs-extend-temporary-protected-status-venezuela

The extension of TPS for El Salvador allows approximately 232,000 current beneficiaries to re-register for TPS, if they have continuously resided in the United States since March 9, 2001: https://www.dhs.gov/news/2025/01/10/dhs-publishes-federal-register-notice-extending-temporary-protected-status-el

First Circuit Remands CAT Claim

The First Circuit has remanded a Convention Against Torture case, finding that the agency applied an erroneous standard by relying solely on “the fact that the government has taken some responsive action to combat private violence.”

“More to the point, looking only to whether a government takes some responsive action to prevent private violence fails to account for instances where a foreign government takes some measures but still does not satisfy its legal duty to intervene. Sometimes, despite having taken some action, a government may still have a legal responsibility to do more.. That is why we require the agency to address whether the government's actions demonstrate that it will adequately meet its legal responsibility to intervene. Addressing this part of the inquiry is especially important where a government's preventative actions have been ineffective.”

The full text of Akinsanya v. Garland can be found here:

https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1412P-01A.pdf

Ninth Circuit Issues Amended Decision on Reviewability of Bond Denial

The Ninth Circuit has issued an amended decision in Martinez v. Clark, finding that it has jurisdiction to review the agency’s determination that a non-citizen is a danger to the community under an abuse of discretion standard. The court concluded that the dangerousness determination is a mixed question of fact and law.

The full text of Martinez v. Clark can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/27/21-35023.pdf

First Circuit Addresses Agency's Settled Course of Granting Unopposed Motions to Remand for Adjustment

The First Circuit has recognized that the Board of Immigration Appeals (BIA) has a settled course of adjudication of granting unopposed motions to remand for non-citizens to seek adjustment of status.

“The question is whether there is a ‘settled course"‘ by the BIA of routinely granting such unopposed remand requests so that petitioners in removal proceedings may proceed for an adjustment of status. As a matter of law, it is arbitrary and capricious for the BIA to suddenly and inexplicably depart from established policies, including its own precedents. Badose asserts that this is exactly what happened here. As noted, the government has not refuted that proposition.”

The court also noted that the BIA is prohibited from engaging in factfinding in connection with a motion to reopen, and not only in its adjudication of an appeal.

“On the record before us, we can only conclude that the BIA improperly denied Badose's unopposed remand motion both by arbitrarily deviating from a standard course of practice and by improperly engaging in factfinding in violation of 8 C.F.R. § 1003.1(d)(3). Badose is therefore entitled to a remand to the IJ so that he can present his case for adjustment of status based on his marriage.”

The full text of Badose v. Garland can be found here:

https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/23-1156P2-01A.pdf

First Circuit Finds no Jurisdiction to Review NIW Revocation

The First Circuit has determined that a federal court lacks jurisdiction to review the revocation of an approval of a National Interest Waiver and an I-140 petition.

The full text of Guedes v. Mayorkas can be found here:

https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1228P-01A.pdf

Ninth Circuit Finds that Washington Conviction for Possession of a Stolen Vehicle is an Aggravated Felony

The Ninth Circuit has determined that a Washington conviction for possession of a stolen vehicle qualifies as an aggravated felony if accompanied by a sentence of at least one year of imprisonment.

“Washington’s stolen vehicle statute also requires actual knowledge that the vehicle was stolen. The statute requires not only that the defendant ‘knowingly’ possess the stolen property but also have a state of mind of ‘knowing that it has been stolen.’” “And since actual knowledge requires an intent to deprive the owner of his property, the state statute also matches the generic offense’s intent requirement.”

The full text of Chmukh v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/23/21-1096.pdf

Ninth Circuit Addresses BIA's Reliance on Prior Adverse Credibility Determination to Deny Motion to Reopen

The Ninth Circuit has clarified when the Board of Immigration Appeals may consider a prior adverse credibility determination in its assessment of a motion to reopen.

“In the Ninth Circuit, we recognize that immigration judges (‘IJs’) —but not the Board of Immigration Appeals (‘BIA’)—have the prerogative to answer that question by using the maxim falsus in uno, falsus in omnibus (‘false in one thing, false in everything’). Here, however, the BIA used that prerogative to discredit petitioner Ranjit Singh’s affidavit in support of his motion to reopen because Singh had been found not credible by an IJ in his prior removal proceedings, but as to facts quite unlike those he asserted in his motion to reopen. We hold that such blanket reliance on a prior adverse credibility determination that was based on dissimilar facts contravenes the law of the Ninth Circuit.”

“To synthesize our precedents, an item of evidence already found not credible at an alien’s removal proceedings remains presumptively not credible at the motion-to-reopen stage, unless that item of evidence is effectively rehabilitated by adequate proffer of proof. Likewise, an item of fact unproven at the alien’s removal proceedings remains unproven—and the BIA is free to disregard it—unless the alien effectively corroborates it with new evidence submitted in support of his motion to reopen. When faced with a motion to reopen filed by an alien who was tarnished by an adverse credibility finding from previous removal proceedings, the BIA should first ascertain the scope of that adverse credibility finding. Then, the BIA should discern what facts were tainted by the alien’s discredited testimony and were not established by other evidence. If those facts are again solely evidenced by the alien’s affidavit at the motion-to-reopen stage, then the BIA is free to discredit them, not through the application of the falsus maxim, but because it would defy common sense to require the BIA to accept previously rejected facts when proffered anew based solely on the discredited words of the same witness.”

“If a factual allegation was not presented at all in the alien’s removal proceedings, the BIA must accept it as true unless it is inherently unbelievable. The BIA cannot disregard the alien’s new factual allegations simply because the alien was previously found not credible as to other different factual allegations.“

The full text of Singh v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/24/23-2065.pdf

Ninth Circuit Finds Jurisdiction to Review Extraordinary Circumstances for VAWA Motion to Reopen

The Ninth Circuit has determined that it has jurisdiction to review the agency’s determination that a non-citizen had not established extraordinary circumstances that would justify tolling the one-year filing deadline for a motion to reopen based on eligibility for VAWA-related relief.

The full text of Magana Magana v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/26/23-1887.pdf

Ninth Circuit Finds that Montana Conviction for Partner or Family Member Assault is not Misdemeanor Crime of Domestic Violence under Federal Criminal Law

The Ninth Circuit has determined that a Montana conviction for partner or family member assault is not a misdemeanor crime of domestic violence under federal criminal law. In so doing, the court recognized that the statute criminalizes infliction of emotional abuse, and thus, does not require the use or attempted use of physical force. “Taken together, these authorities show that a person can violate section 45-5-206(1)(a) through any form of communication that inflicts bodily injury in the form of emotional anguish. The infliction of emotional anguish does not require the use of physical force as that term is defined by federal law.”

Although this analysis arose in the criminal context, the immigration law definition of a crime of violence and a crime of domestic violence both require the use or attempted use of physical force. Indeed, the federal courts have acknowledged that the level of force required to meet the definition of a misdemeanor crime of domestic violence is lower than the degree of force required for a crime of violence or a crime of domestic violence. Thus, this analysis should be sufficient to demonstrate that a Montana conviction for partner or family member assault does not trigger the applicable immigration consequences for those offenses.

The full text of USA v. DeFrance can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/30/23-2409.pdf

Seventh Circuit Construes Exceptional and Extremely Unusual Hardship

The Seventh Circuit has determined that the agency’s definition of exceptional and extremely unusual hardship to qualifying relatives is not entitled to any deference. Further, the Court construed “exceptional and extremely unusual hardship” as requiring hardship sustained by a deported alien’s qualifying relatives that’s significantly different from or greater than the hardship that a deported alien’s family normally experiences.

The full text of Moctezuma-Reyes v. Garland can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0274p-06.pdf