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

Fifth Circuit Finds Affidavit Alone Insufficient to Establish Lack of Notice

The Fifth Circuit has determined that a non-citizen’s declaration alone is not sufficient to compel the agency to reopen a removal order based on lack of receipt of the notice of hearing.

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

https://www.ca5.uscourts.gov/opinions/pub/21/21-60195-CV0.pdf

Fifth Circuit Applies no Deference to BIA's Hardship Determination

The Fifth Circuit has affirmed the agency’s hardship finding in a cancellation of removal case, finding that even if it accorded that determination no deference, the applicant had not established that his U.S.-citizen son would suffer exceptional and extremely unusual hardship without him.

The full text of Cuenca-Arroyo v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/23/23-60100.CV0.pdf

Fifth Circuit Rejects Challenge to Revocation of I-140 Petition Approval

The Fifth Circuit has rejected a challenge to the revocation of the approval of an I-140 petition. The Court found that because the agency found the petition was granted in error, it was never valid, the portability rules in section 245(j) of the INA did not prevent the revocation of the approval.

The full text of Nguyen v. Jaddou can be found here:

https://www.ca5.uscourts.gov/opinions/pub/23/23-20597-CV0.pdf

Fifth Circuit Determines that Louisiana Conviction for Accessory after the Fact is not an Obstruction of Justice Aggravated Felony

The Fifth Circuit has determined that a Louisiana conviction for accessory after the fact is not an obstruction of justice aggravated felony because the state offense is a general intent crime, while the generic definition of obstruction of justice requires a specific intent to interfere with the process of justice.

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

https://www.ca5.uscourts.gov/opinions/pub/23/23-60248-CV0.pdf

Fifth Circuit Finds no Jurisdiction to Review USCIS Denial of AOS for Arriving Alien

The Fifth Circuit has affirmed that federal courts have no jurisdiction to review the denial of adjustment of status applications outside of the removal context, precluding judicial review of denials of adjustment of status to arriving aliens. “That Momin has no recourse for what may be a series of mistakes by the government is cruel but legally compelled. As the law stands, 8 U.S.C. § 1252(a)(2)(B)(i) precludes judicial review of denials of applications for adjustment of status and waivers of inadmissibility. This case illustrates some of the pitfalls that follow. In the absence of judicial review to ensure that the government turns square corners, we are left only with the hope that USCIS will give any future application by Momin to reopen his case careful attention.“

The full text of Momin v. Jaddou can be found here: https://www.ca5.uscourts.gov/opinions/pub/23/23-20327-CV0.pdf

Fifth Circuit Remands Asylum Denial to Cameroonian Nurse

The Fifth Circuit has remanded an asylum claim for a Cameroonian nurse, finding that the agency’s analysis of past persecution was insufficient, its analysis of nexus was incorrect, and its lack of corroboration finding was contradicted by the record. “Aben was arrested and detained three times; held in unlawful captivity for a total of six days; slapped, kicked, and knocked in the head; beaten with a belt and a stick; suffered several lacerations, blisters, sores, and bruises; threatened with death while held at gunpoint; and told he would be killed if he did not run fast enough to escape. The BIA’s determination must be vacated because it fails to account for the credible death threats that Aben received.”

“The BIA stated that the actions taken against Aben were not politically motivated but instead were taken due to his occupation as a nurse. However, the BIA failed to address the fact that Aben testified that the military imputed a political opinion to him because military members chastised him for treating ‘separatist fighters,’ and told Aben ‘you [Anglos] think you can fight the government. We will kill you one by one.’ He also testified that as he was being taken from his uncle’s home, he was told, ‘[Y]ou think you can fight us.’ Aben did not claim that the military was targeting him because he was a nurse. Rather he argues that he was perceived to be assisting separatists and later accused of fighting against the government. The BIA does not address this evidence.“

“The BIA and IJ faulted Aben for not documenting his injuries with pictures or medical records. But Aben stated that the Cameroonian authorities seized his cellphone and that he was afraid to use one because of what the authorities would do if they found documentation. He also stated that he avoided hospitals because of fear. Accordingly, the two means of documenting his injuries that the IJ faulted Aben for not using appear unavailable to him based on the record.”

The full text of Aben v. Holder can be found here:

https://www.ca5.uscourts.gov/opinions/pub/20/20-60937-CV0.pdf

Fifth Circuit finds no Jurisdiction over APA Delay Challenge Involving Pending Adjustment

The Fifth Circuit has determined that it lacks subject matter jurisdiction over a claim under the Administrative Procedure Act that an adjustment of status application has been unreasonably delayed.

The full text of Cheejati v. Blinken can be found here: https://www.ca5.uscourts.gov/opinions/pub/23/23-40398-CV1.pdf

Fifth Circuit Finds Applicant Ineligible for Adjustment Due to Revoked Parole

The Fifth Circuit has determined that a non-citizen is ineligible for adjustment of status through his U.S.-citizen wife because his parole was revoked by the service of a Notice to Appear. Moreover, he had previously conceded his inadmissibility under § 1182(a)(7)(A)(i)(I), leading the court to conclude he remained .an applicant for admission, ineligible for adjustment of status.

The full text of this incredibly incorrect decision (Membreno-Rodriguez v. Garland) can be found here:
https://www.ca5.uscourts.gov/opinions/pub/23/23-60022-CV0.pdf

The Fifth Circuit Finds that Texas Conviction for Possessing a Synthetic Cannabinoid is Controlled Substance Offense

The Fifth Circuit has determined a respondent did not establish a realistic probability that a Texas conviction for possessing a synthetic cannabinoid criminalizes substances not found in the federal controlled substances schedules. Moreover, the court determined that a non-citizen cannot raise new state law authorities on appeal to meet the realistic probability test because the failure to raise those decisions before the agency renders the arguments unexhausted.

The full text of Alejos-Perez v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/22/22-60555-CV0.pdf

Fifth Circuit Finds that TX Aggravated Sexual Assault with a Deadly Weapon is Crime of Violence

The Fifth Circuit has determined that a Texas conviction for aggravated sexual assault with a deadly weapon is a crime of violence because it requires the use or attempted use of physical force.

The full text of Delgado-Victorio v. Garland can be found here: https://www.ca5.uscourts.gov/opinions/pub/23/23-60102-CV0.pdf

Fifth Circuit Reverses Course, Finds Jurisdiction over Denied Withholding/CAT

The Fifth Circuit has reversed its prior decision and determined that it has jurisdiction to review the agency’s denial of withholding of removal and protection under the Convention against Torture to a non-citizen subject to a reinstatement order, so long as the petition for review is filed within 30 days of the Board of Immigration Appeals’ decision. The opinion also contains an excellent analysis of when threats rise to the level of persecution, and how to articulate sufficient nexus in a “mixed motives” analysis.

The full text of Argueta-Hernandez v. Garland can be found here: https://www.ca5.uscourts.gov/opinions/pub/22/22-60307-CV1.pdf

Fifth Circuit Finds "Business Owners" are not Valid PSG

The Fifth Circuit has determined that “business owners” are not a valid particular social group because they lack an immutable characteristic.

The full text of Munoz-De Zelaya v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/22/22-60505-CV0.pdf

Fifth Circuit Finds Asylum Applicant Must Demonstrate Social Distinctiveness of her Nuclear Family

The Fifth Circuit has determined that an asylum applicant has the obligation to provide some evidence of the social distinction of her nuclear family in her society when relying on that family as a particular social group for asylum purposes. The Court was also critical of the Biden Administration’s failure to promulgate proposed regulations on family-based particular social groups.

The full text of Garcia-Gonzalez v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/22/22-60501-CV0.pdf

Fifth Circuit Finds No Jurisdiction over Withholding/CAT Proceedings

The Fifth Circuit has determined that a reinstatement order is a final order of removal, and therefore, a petition for review must be filed within 30 days of the issuance of that order. The existence of an ongoing withholding/CAT only proceedings does not toll the deadline for filing that petition for review.

The full text of Argueta-Hernandez v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/22/22-60307-CV0.pdf

Fifth Circuit Finds that National Interest Waiver Denials are Non-Reviewable

The Fifth Circuit has determined that the federal courts have no jurisdiction to review the denial of a national interest waiver.

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

https://www.ca5.uscourts.gov/opinions/pub/22/22-20419-CV0.pdf

Fifth Circuit Finds that Texas Conviction for Injury to Child in Third Degree is Deportable Offense

The Fifth Circuit has affirmed that a Texas conviction for injury to a child in the third degree is a crime of child abuse, rejecting the petitioner’s contention that the definition of harm in the statute is broader than the generic definition of a crime of child abuse.

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

https://www.ca5.uscourts.gov/opinions/pub/21/21-60530-CV0.pdf

Fifth Circuit Finds that PA Conviction for Receipt of Stolen Property Property is Aggravated Felony

The Fifth Circuit has determined that a Pennsylvania conviction for receipt of stolen property is an aggravated felony, rejecting the petitioner’s argument that the statute’s mens rea is lower than that required by the generic definition of a theft offense.

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

https://www.ca5.uscourts.gov/opinions/pub/21/21-60146-CV0.pdf

Fifth Circuit Affirms In Absentia for Failure to Correct Typo on NTA

The Fifth Circuit has determined that a non-citizen who received an NTA with an address bearing a single typo, and who failed to correct the address with the court, is not entitled to written notice of his hearing, even if the typo was made by an immigration officer. The court was not persuaded that the non-citizen must have provided an accurate address or otherwise corrected the address by the fact that the bag and baggage letter was sent to the correct address.

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

https://www.ca5.uscourts.gov/opinions/pub/20/20-60778-CV0.pdf

Fifth Circuit Finds No Jurisdiction to Review Denial of Motion to Remand in Non-LPR Cancellation Appeal

The Fifth Circuit has determined that it lacks jurisdiction to review the denial of a motion to remand to consider additional hardship evidence in a non-LPR cancellation of removal application.

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

https://www.ca5.uscourts.gov/opinions/pub/22/22-60074-CV0.pdf