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

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

BIA Applies Circumstance-Specific Approach to Money Laundering Offense

The Board of Immigration Appeals has determined that for the purpose of assessing whether an offense constitutes a money laundering aggravated felony, the circumstance-specific appproach applies to the requirement that the “amount of the funds exceeded $10,000.”

The full text of Matter of Dominguez Reyes can be found here:

https://www.justice.gov/d9/2024-12/4083.pdf

BIA Applies Matter of Fernandes Retroactively

The Board of Immigration Appeals has determined that its requirement that a respondent object to an incomplete Notice to Appear before the close of pleadings is not a new rule, and as such, the decision in Matter of Fernandes applies retroactively.

The full text of Matter of Larios-Gutierrez de Pablo and Matter Pablo-Larios can be found here:

https://www.justice.gov/d9/2024-11/4082.pdf

BIA Finds Sentencing Enhancement is an Element of the Offense

The Board of Immigration Appeals has determined that a California sentencing enhancement adds an element to the underlying offense. The Board noted California State law requires sentence-enhancing elements be charged in the information and found beyond a reasonable doubt by a jury.

“Accordingly, the respondent’s enhanced conviction under sections 191.5(b) and 20001(c) requires proof of the following elements: (1) the defendant drove a vehicle under the influence of drugs or alcohol in violation of the California Vehicle Code; (2) while driving under the influence, the driver also committed another infraction or an otherwise lawful act that might cause death; (3) the infraction or other act was committed in a negligent manner; (4) the negligent conduct caused the death of another person; (5) the driver knew that he or she had been involved in an accident that injured another person or knew from the nature of the accident that it was probable that another person was injured; and (6) the driver willfully fled the scene of the accident.'“

“The respondent’s compound conviction contains three mentes reae: (1) a negligence mens rea originating from section 191.5(b) for the actus reus of the driving violation; (2) a knowing mens rea originating from section 20001(c) for knowing that a person was injured; and (3) a willful mens rea for the actus rea of leaving the scene of the accident.” “The respondent does not contest the presence of a knowing mens rea in his enhanced conviction, but he argues that the mens rea of fleeing the scene cannot be applied to the conduct of the base offense of vehicular manslaughter while intoxicated because they are two discrete acts, each with a separate and distinct mens rea. He further argues that, like in Quintero-Cisneros, section 20001(c) supplies a culpable mental state to the respondent’s crime, but unlike in Quintero-Cisneros, section 20001(c) does not explicitly inject the knowing or willful mens rea into to the base offense of vehicular manslaughter; rather, the knowing or willful mens rea is tied to the separate and subsequent actus reus of fleeing the scene.”

“We are not convinced that Quintero-Cisneros provides for this distinction. The Ninth Circuit emphasized that because the sentencing enhancement in that case was an element, it was considered part of the offense of conviction and the combined offense must be compared to the generic definition under the categorical approach. Although the sentencing enhancement in that case differs from section 20001(c) because it modified the motivation with which the defendant committed the base offense, nothing in the Ninth Circuit’s analysis suggests that a sentencing enhancement that joins a further act and a mental state to the base offense would have been analyzed differently. Moreover, at the time of the negligent act resulting in an accident, the knowledge that the respondent had been involved in an injury accident inures, informing the decision to flee. The respondent has not identified any Ninth Circuit case law indicating that the elements of section 20001(c) must be analyzed separately from the elements of the respondent’s underlying conviction.”

“Therefore, the enhanced conviction contains a culpable mental state, and the remaining question is whether, in the context of the respondent’s conviction, the actus reus of fleeing the scene after having caused the death of another as a result of a negligent act while driving under the influence constitutes reprehensible conduct.” “We agree with DHS that knowingly and willfully fleeing the scene after being involved in an accident causing injury to another person is inherently reprehensible conduct.”

The decision drew a detailed dissent.

The full text of Matter of Khan can be found here:

https://www.justice.gov/d9/2024-11/4081.pdf

BIA Overrules its Precedent Assuming that Theft Statute Includes Intent to Permanently Deprive

The Board of Immigration Appeals has overruled its decision in Matter of Jurado, which assumed that retail theft in Pennsylvania inherently includes an intent to permanently deprive, finding it inconsistent with the categorical approach outlined by the Supreme Court in Mathis v. United States. The Board then concluded that Pennsylvania retail theft convictions criminalize less than permanent takings, and thus, under pre-Diaz LIzarraga precedent, they do not constitute crimes involving moral turpitude.

The full text of Matter of Thakker can be found here:

https://www.justice.gov/d9/2024-09/4080.pdf

BIA Prescribes Remedy for Putative NTA

The Board of Immigration Appeals has determined that Homeland Security can “cure” a defective Notice to Appear (NTA) by moving the Immigration Judge to make written amendments to the NTA by adding the date and time of a future hearing.

The full text of Matter of R-T-P- can be found here:

https://www.justice.gov/d9/2024-09/4079.pdf

BIA Determines that Attempt Crimes fall within Definition of Crimes of Child Abuse

The Board of Immigration Appeals has determined that attempt crimes can render a non-citizen deportable under section 237(a)(2)(E) of the INA, even though the statute makes no mention of attempted crimes of child abuse.

The full text of Matter of D. Rodriguez can be found here:

https://www.justice.gov/d9/2024-08/4078.pdf

BIA Confirms that Rape is Torture

The Board of Immigration Appeals has confirmed that rape is a torture and is not a lawful sanction. “Rape clearly rises to the level of torture. It is an extreme form of cruel and inhuman treatment’ that causes severe pain or suffering and is therefore mistreatment sufficiently severe to qualify for protection under the CAT where the other elements are established. As the Immigration Judge noted, torture does not include pain or suffering arising from lawful sanctions. However, a lawful sanction must be judicially imposed or otherwise authorized by law. While incarceration is a lawful sanction, rape by fellow inmates is not. Additionally, a lawful sanction cannot ‘defeat the object and purpose of the Convention Against Torture to prohibit torture. Thus, rape is sufficiently severe to constitute torture and can never be a lawful sanction under the CAT.”

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

https://www.justice.gov/d9/2024-06/4077.pdf

BIA Discusses Intersection of Venue, Choice of Law, and Administrative Control Court

The Board of Immigration Appeals has stated that choice of law is dependent upon venue in Immigration Court proceedings, and therefore, the controlling circuit law is not affected by a change in the administrative control court and will only change upon the granting of a motion to change venue.

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

https://www.justice.gov/d9/2024-05/4076.pdf

BIA Construes I-130 Requirements for Adoptees from Hague Countries

The Board of Immigration Appeals has determined that a petitioner seeking approval of a Form I-130 for an adopted child from a country that is a party to the Hague Convention must submit (1) a written statement from the Central Authority of the child’s country of origin stating that it is aware of the child’s presence in the United States and of the adoption, and that it has determined that the child is not habitually resident in the country of origin; (2) an adoption order or amended adoption order incorporating the language of the statement from the Central Authority; or (3) proof that the Central Authority of the child’s country of origin did not respond to the request for a habitual residence statement, that the Central Authority responded that it would not write a habitual residence statement, or that the United States Department of State has confirmed that the Central Authority does not issue habitual residence statements.

The full text of Matter of Furtado can be found here:

https://www.justice.gov/eoir/media/1352416/dl?inline

BIA Finds no Jurisdiction to Review Withdrawn I-751

The Board of Immigration Appeals has determined that an Immigration Judge has no authority to review a withdrawn I-751. In this case, the respondent and his ex-wife filed a joint I-751, but his wife subsequently withdrew it. Although the respondent claimed she was coerced to do so, the Board determined there was no proof of coercion, such as an affidavit from the ex-wife. “Because the respondent has presented insufficient evidence to substantiate this claim, we do not need to decide whether the Immigration Judge had the authority to review his claim that the Form I-751 petition was withdrawn due to coercion.”

The full text of Matter of Bernardo can be found here:

https://www.justice.gov/d9/2024-02/4072.pdf

BIA Addresses Insufficiency of a PCR Order

The Board of Immigration Appeals has addressed the insufficiency of a state court vacatur order, noting that the order did not specify the statute for vacatur, did not reference the allegations in the motion to vacate, and did not include any factual findings to support the vacatur order. The motion to vacate itself was not accompanied by any evidentiary support, such as sworn affidavits.

“Where a State court order granting a respondent’s motion to vacate a conviction does not indicate the reason for the vacatur, and there is no other basis in the record to independently establish the reason, the respondent has not satisfied his burden to show that the court vacated his conviction because of a substantive or procedural defect in his criminal proceedings. The bare fact that the State court granted the respondent’s motion does not establish the State court’s reason for doing so. Because the respondent has not demonstrated that the convictions underlying his removability were vacated because of a procedural or substantive defect in his criminal proceedings, we will deny his motion to reopen and terminate.”

The Board noted in a footnote that there is a split in authority over whether DHS or the respondent bears the burden of proving the basis of a vacatur in the motion to reopen context for a deported lawful permanent resident.

The full text of Matter of Azrag can be found here: https://www.justice.gov/d9/2024-02/4073.pdf

BIA Finds I-261 to be Inappropriate Remedy for Incomplete NTA

The Board of Immigration Appeals has determined that the Department of Homeland Security cannot remedy a putative Notice to Appear (one missing the date and time of the initial hearing) by filing a Form I-261.

The full text of Matter of Aguilar Hernandez can be found here:

https://www.justice.gov/d9/2024-01/4071.pdf

BIA Finds IJ Should not Have Dismissed Case with Pending I-751 Review

The Board of Immigration Appeals has determined that an Immigration Judge should not grant a motion to dismiss by the Department of Homeland Security when the respondent has the right to review of a denied I-751 application.

The full text of Matter of Bernardo can be found here:

https://www.justice.gov/d9/2024-02/4072.pdf

BIA Finds that Pre-trial Release does not Preclude Civil Immigration Detention

The Board of Immigration Appeals (Board) has determined that the agency is not estopped from detaining a non-citizen in immigration custody without bond simply because a magistrate released him on pre-trial bail in a federal criminal proceeding. The Board noted that the criminal proceedings, the government bears the burden of proving a defendant is a flight risk or danger to the community to justify detention without bail, while in the immigration context, the non-citizen bears the burden of proving he is not a flight risk or danger to the community to justify the granting of bond.

The full text of Matter of Panin can be found here:

https://www.justice.gov/d9/2024-01/4070.pdf

BIA Affirms Right to Review of Denied I-751

The Board of Immigration Appeals has affirmed the right of a non-citizen to seek review of a denied I-751 petition in removal proceedings, despite any request to dismiss proceedings by the Department of Homeland Security.

The full text of Matter of H.N. Ferreira can be found here:

https://www.justice.gov/d9/2023-12/4069_0.pdf

BIA Narrows Relief for Family-Based Particular Social Groups

The Board of Immigration Appeals has again narrowed the circumstances in which an asylum applicant can establish the requisite nexus between persecution and the particular social group comprised of the applicant’s family. “In our view, the Tenth Circuit’s approach is the proper way to analyze whether membership in a family-based particular social group is one central reason for harm. The question asked under the Fourth Circuit’s approach—why an applicant, and not others, is targeted—is relevant in evaluating the reasons for harm, but it is not the end of the analysis. When a persecutor targets multiple members of a single family, their family membership may be a reason for harming them, especially when non-family members are not similarly targeted. However, the fact that family membership is a reason for harm does not mean that it is necessarily one central reason. If a persecutor is targeting members of a certain family as a means of achieving some other ultimate goal unrelated to the protected ground, family membership is incidental or subordinate to that other ultimate goal and therefore not one central reason for the harm. Likewise, when a persecutor’s threats to harm family members are contingent on one or more of the family members acting or failing to act in a certain way—such as failing to comply with demands for money or other property—family membership is unlikely to be one central reason for that harm and instead will be merely a means to another end.”

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

https://www.justice.gov/d9/2023-12/4068.pdf

BIA Addresses Effect of Late-Filed Appeals in NY

The Board of Immigration Appeals has determined that because an appeal accepted under section 460.30 of the New York Criminal Procedure Law is classified as a direct appeal, a respondent with a pending appeal under this section does not have a final conviction for immigration purposes.

The full text of Matter of Brathwaite can be found here:

https://www.justice.gov/d9/2023-10/4067.pdf