These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
Attorney General
The Attorney General has restored the authority of Immigration Judges and the Board of Immigration Appeals to terminate proceedings, particularly where the respondent will seek relief before USCIS, where the removal proceedings would cause adverse effects during consular processing, or where the respondent has obtained lawful permanent residency after being placed in removal proceedings.
The full text of Matter Coronado Acevedo can be found here:
The Attorney General has determined that the agency may consider an applicant’s mental health conditions when determining if the applicant has been convicted of a particularly serious crime. “In some circumstances, a respondent’s mental health condition may indicate that the respondent does not pose a danger to the community— for instance, where the respondent ‘suffered from intimate partner violence, was convicted of assaulting his or her abuser, and reliable evidence showed that the individual’s diagnosed post-traumatic stress disorder had played a substantial motivating role in the assault.’ Of course, an individual may pose a danger to the community notwithstanding a mental health condition, and in those cases, the ‘particularly serious crime’ bar to asylum and withholding of removal may apply. But the potential relevance of mental health evidence to the dangerousness inquiry suffices to establish that such evidence should not categorically be disregarded, as G-G-S- held.”
The full text of Matter of B-Z-R- can be found here:
The Attorney General has rescinded the decision in Matter of Castro Tum and restored the agency’s authority to administratively close removal proceedings, pending further rulemaking on the topic.
The full text of Matter of Cruz Valdez can be found here:
The Attorney General has restored the permissibility of relying on stipulations by the parties that certain elements of an asylum claim have been met by rescinding the decision in Matter of A-C-A-A-.
The rescission decision can be found here: https://www.justice.gov/eoir/page/file/1415401/download
The Attorney General has vacated the decisions in Matter of A-B- and Matter of L-E-A- II, which purported to limit family-based particular social group asylum claims, domestic violence-based asylum claims, and gang-based asylum claims.
The vacature orders can be found here:
In yet another blow to the asylum system just days before the Trump Administration was set to leave office, the Acting Attorney General issued another decision in Matter of A-B-, the horrendous asylum decision issued by Jeff Sessions that seeks to wipe out all forms of asylum related to non-state actor persecution.
Despite a rather scathing opinion from the DC Circuit to the contrary, the Attorney General doubled down on his claim that “complete helplessness” is the same standard that has always been applied to determine if a government is unable or unwilling to control a persecutor. I cannot even begin to describe the sheer absurdity of this statement.
The Attorney General clarified that“[t]he word ‘persecution’ therefore should be read to require that the government in the home country has fallen so far short of adequate protection as to have breached its basic duty to protect its citizens, or else to have actively harmed them or condoned such harm. Where the government is actively engaged in protecting its citizens, failures in particular cases or high levels of crime do not establish a breach of the government’s duty to protect its citizenry.” Furthermore, if a noncitizen “may reasonably relocate within his home country to avoid persecution, then that may show that the failure to prevent private violence is localized and the foreign country is not itself ‘unwilling or unable’ to prevent persecution. Although evidence of localized police apathy or incompetence may indicate a government’s unwillingness or inability to prevent persecution, in many cases the localized apathy is just that—localized. The applicant may receive effective government protection by relocating within their home country, where the attitudes of local authorities may be different.”
The Attorney General reiterated the two-pronged nexus test laid out by the Board of Immigration Appeals: the applicant’s protected status must be both a but-for cause of her persecution and it must play more than a minor role that is neither incidental nor tangential to another reason for the harm or a means to a non-protected end. Nevertheless, the Attorney General was forced to recognize that Fourth Circuit case law only required that the but-for causation be established.
The full text of the new decision in Matter of A-B- can be found here:
The Attorney General (AG) has determined that the bar to eligibility for asylum and withholding of removal based on the persecution of others does not include an exception for coercion or duress. The AG additionally determined that the Department of Homeland Security does not have an evidentiary burden to show that an applicant is ineligible for asylum and withholding of removal based on the persecution of others.
The full text of Matter of Negusie can be found here:
The Attorney General has directed the Board of Immigration Appeals to review de novo if the Immigration Judge’s factual findings establish all of the elements of an asylum claim, and to not accept the parties’ stipulation that certain elements of the claim have been established.
The full text of Matter of A-C-A-A- can be found here:
The Attorney General has backtracked on the Board of Immigration Appeals’ attempt to carve out a “rogue official” exception to protection under the Convention Against Torture (CAT). “To the extent the Board used ‘rogue official’ as shorthand for someone not acting in an official capacity, it accurately stated the law. By definition, the actions of such officials would not form the basis for a cognizable claim under the CAT. But continued use of the ‘rogue official’ language by the immigration courts going forward risks confusion, not only because it suggests a different standard from the ‘under color of law’ standard, but also because ‘rogue official’ has been interpreted to have multiple meanings.”
“This standard does not categorically exclude corrupt, low-level officials from the CAT’s scope. Rather, regardless of rank, a public official acts under color of law when he ‘exercise[s] power possessed by virtue of law and made possible only because he is clothed with the authority of law.’ Whether any particular official’s actions ultimately satisfy this standard is a fact-intensive inquiry that depends on whether the official’s conduct is ‘fairly attributable to the State.’” The Attorney General further noted that there should be no distinction between acts of torture by high ranking or low level officials.
The Attorney General vacated the Board of Immigration Appeals’ prior published decision on the case.
The full text of Matter of O-F-A-S- can be found here:
The Attorney General has determined that a person with two DUI convictions during the good moral character period presumptively lacks good moral character and is ineligible for cancellation of removal for non-lawful permanent residents.
“There could be an unusual case in which an alien can establish that the multiple convictions were an aberration and can show good moral character. To do so, the respondent must overcome the strong evidence attributable to those multiple convictions by establishing good moral character. See 8 C.F.R. § 1240.8(d). But a respondent may not make this showing merely by demonstrating that he reformed himself after those convictions by, for instance, addressing a problem with substance abuse. The statute requires that good moral character be shown over the continuous period of not less than 10 years immediately preceding’ the application. INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1). The alien thus must show that he had good moral character even during the period within which he committed the DUI offenses. An alien’s efforts to reform or rehabilitate himself after multiple DUI convictions are commendable, but they do not themselves demonstrate good moral character during the period that includes the convictions. Absent substantial relevant and credible contrary evidence, multiple DUI convictions require that the immigration judge deny cancellation of removal.”
The full text of Matter of Castillo-Perez can be found here:
The Attorney General has reversed 18 years of agency precedent and determined that sentencing modifications will no longer be effective for immigration purposes unless they are premised on legal error in the underlying criminal proceedings. The Attorney General also overruled two cases that held that the Full Faith and Credit Clause applies to agencies, such as the Immigration Courts and the Board of Immigration Appeals. Notably, the Attorney General left in place current federal case law dictating which party bears the burden of proof of establishing the reason for a sentence modification.
The full text of Matter of Thompson and Matter of Thomas can be found here:
The Attorney General has revised the Board of Immigration Appeals’ prior decision finding that family qualifies as a particular social group for asylum and withholding of removal purposes. Instead, the Attorney General stated that “most nuclear families are not inherently socially distinct.” “When an applicant proposes a group composed of a specific family unit, he must show that his proposed group has some greater meaning in society. It is not enough that the family be set apart in the eye of the persecutor, because it is the perception of the relevant society—rather than the perception of the alien’s actual or potential persecutors—that matters.”
“If an applicant claims persecution based on membership in his father’s immediate family, then the adjudicator must ask whether that specific family is ‘set apart, or distinct, from other persons within the society in some significant way.’ It is not sufficient to observe that the applicant’s society (or societies in general) place great significance on the concept of the family. If this were the case, virtually everyone in that society would be a member of a cognizable particular social group. The fact that ‘nuclear families’ or some other widely recognized family unit generally carry societal importance says nothing about whether a specific nuclear family would be ‘recognizable by society at large.’”
The full text of Matter of L-E-A- can be found here:
The Attorney General has imposed narrow standards on when an Immigration Judge may continue proceedings. An immigration judge may grant a motion for a continuance of removal proceedings only "for good cause shown." When a respondent requests a continuance to pursue collateral relief, the immigration judge must consider primarily the likelihood that the collateral relief will be granted and will materially affect the outcome of the removal proceedings. The immigration judge should also consider relevant secondary factors, which may include the respondent’s diligence in seeking collateral relief, DHS’s position on the motion for continuance, concerns of administrative efficiency, the length of the continuance requested, the number of hearings held and continuances granted previously, and the timing of the continuance motion.
The Attorney General did emphasize that immigration judges need not treat as controlling DHS’s consent to, opposition to, or failure to take a position on a motion for continuance.
To assess the speculativeness of a respondent’s collateral matter, an immigration judge will generally need an evidentiary submission by the respondent, which should include copies of relevant submissions in the collateral proceeding, supporting affidavits, and the like. Absent such evidence, the respondent generally will not carry his burden of showing that a collateral matter is actually likely to bear on the outcome of the removal proceedings.
The immigration judge should also state his reasons for granting a continuance on the record or in a written decision. A record of the immigration judge’s evaluation and balancing of the relevant good-cause factors does not bind the Board, of course, but it does aid the Board’s review of a continuance order. The absence of any reasoned explanation for the grant of a continuance may, were the Board to entertain an interlocutory appeal, leave Cite the Board no choice but to vacate the order granting the continuance if evidence supporting good cause is not clear from the record.
The Attorney General also directed the Board of Immigration Appeals to entertain interlocutory appeals of decisions regarding continuances.
The full text of Matter of L-A-B-R-can be found here:
The Attorney General has determined that an Immigration Judge has no authority to terminate proceedings except as expressly authorized by the regulations or when the Department of Homeland Security has failed to meet its burden to prove removability.
“As relevant here, on motion by DHS, an immigration judge may dismiss the proceedings where ‘the Notice to Appear was improvidently issued’ or the ‘circumstances of the case have changed after the Notice to Appear was issued to such an extent that continuation is no longer in the best interest of the government.’” 8 C.F.R. §§ 239.2(a)(6)−(7), 1239.2(c). The regulations also allow immigration judges to terminate removal proceedings ‘to permit the alien to proceed to a final hearing on a pending application or petition for naturalization when the alien has established prima facie eligibility for naturalization and the matter involves exceptionally appealing or humanitarian factors,’ but provide that, ‘in every other case, the removal hearing shall be completed as promptly as possible.’” 8 C.F.R. § 1239.2(f). “Apart from these circumstances, the relevant statutes and regulations do not give immigration judges the discretionary authority to dismiss or terminate removal proceedings after those proceedings have begun.”
In a footnote, the Attorney General noted that “[t]his decision does not foreclose respondents, in appropriate circumstances, from requesting that DHS file an unopposed motion to dismiss proceedings under 8 C.F.R. § 1239.2(c).”
The full text of Matter of S-O-G- and Matter of F-D-B- can be found here:
The Attorney General referred the decisions of the Board of Immigration Appeals to himself for review of issues relating to when there is “good cause” to grant a continuance for a collateral matter to be adjudicated, ordering that the cases be stayed during the pendency of his review.
The text of the referral order in Matter of L-A-B-R- can be found here:
The Attorney General referred the decision of the Board of Immigration Appeals (Board) to himself for review of issues relating to whether being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum and withholding of removal, ordering that the case be stayed during the pendency of his review.
The decision to refer this case is widely viewed as an attempt to undermine the Board's precedent in Matter of A-R-C-G-, which recognizes that survivors of domestic violence may qualify for asylum.
The full text of the order in Matter of A-B- can be found here:
https://www.justice.gov/eoir/page/file/1041481/download
The Attorney General has certified Matter of Castro-Tum, an unpublished case dealing with the docket control mechanism known as administrative closure, to himself for review. He also invited amicus briefs addressing the following questions:
1. Do Immigration Judges and the Board have the authority, under any statute, regulation, or delegation of authority from the Attorney General, to order administrative closure in a case? If so, do the Board’s decisions in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), articulate the appropriate standard for administrative closure?
2. If I determine that Immigration Judges and the Board currently lack the authority to order administrative closure, should I delegate such authority? Alternatively, if I determine that Immigration Judges and the Board currently possess the authority to order administrative closure, should I withdraw that authority?
3. The regulations governing removal proceedings were promulgated for “the expeditious, fair, and proper resolution of matters coming before Immigration Judges.” 8 C.F.R. § 1003.12 (2017). Are there any circumstances where a docket management device other than administrative closure—including a continuance for good cause shown (8 C.F.R. § 1003.29 (2017)), dismissal without prejudice (8 C.F.R. § 1239.2(c) (2017)), or termination without prejudice (8 C.F.R. § 1239.2(f))—would be inadequate to promote that objective? Should there be different legal consequences, such as eligibility to apply for a provisional waiver of certain grounds of inadmissibility under the immigration laws or for benefits under federal or state programs, where a case has been administratively closed rather than continued?
4. If I determine that Immigration Judges and the Board do not have the authority to order administrative closure, and that such a power is unwarranted or unavailable, what actions should be taken regarding cases that are already administratively closed?
The full text of Matter of Castro Tum can be found here:
The Attorney General (AG) has lifted the stay on Matter of Chairez and Matter of Sama, finding that the Supreme Court's recent decision in Mathis v. United States addresses the definition of a divisible statute. The AG remanded all of they stayed cases to the Board of Immigration Appeals.
The full text of the AG's order can be found here:
https://www.justice.gov/sites/default/files/pages/attachments/2016/09/07/3869_0.pdf
The Attorney General has referred the Board of Immigration Appeals' published decision in Matter of Chairez and its unpublished decision in Matter of Sama to herself for review. She is requesting briefing on the issue of whether the Supreme Court's decision in Descamps v. United States requires that a criminal statute be treated as “divisible” for purposes of the modified categorical approach only if, under applicable law, jurors must be unanimous as to the version of the offense committed.
The notice of referral and invitation for amicus briefs can be found here: http://www.justice.gov/sites/default/files/pages/attachments/2015/11/02/3852_correction.pdf
