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

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

First Circuit Addresses Family-Based Social Group Claim

The First Circuit has remanded an asylum application, noting that there is was no other basis in the record for the persecution alleged than family ties. “The fact that the cattle thieves were motivated in targeting Pineda-Maldonado in part to protect themselves, because they feared Pineda-Maldonado would retaliate against them, is not disputed by the parties. Butt hat fact does not in and of itself suffice to end the inquiry into whether family status was ‘a central reason’ for their having targeted him, any more than the fact that the cattle thieves sought money in targeting Pineda-Maldonado due to his father's debt could end such an inquiry.”

The full text of Pineda-Maldonado v. Garland can be found here: http://media.ca1.uscourts.gov/pdf.opinions/20-1912P-01A.pdf

First Circuit Rejects Agency Circularity Analysis

The First Circuit has rejected the agency’s determination that an asylum applicant’s proposed social group was impermissibly circular simply because it referenced harm in its definition. “If an applicant's proffered social group, examined without consideration of the potentially circular language, shares independent socially distinctive characteristics, then neither the IJ nor the BIA may reject the group as legally invalid without further substantive analysis.”

The full text of Espinoza-Ochoa v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/21-1431P-01A.pdf

First Circuit Finds Notice to Attorney of Visa Revocation was Sufficient

The First Circuit has determined that serving the attorney who filed a VAWA self-petition with notice of intent to revoke the approval of that petition is sufficient to provide notice the applicant of the intended revocation. The full text of Manguriu v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/22-1220P-01A.pdf

First Circuit Rules Conviction is Final During Collateral Attack

The First Circuit has determined that a conviction remains final for immigration purposes during the pendency of a post-conviction motion.

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

http://media.ca1.uscourts.gov/pdf.opinions/22-1695P-01A.pdf

First Circuit Finds that Location of Administrative Control Court Defines Judicial Venue

The First Circuit has determined that the location of the administrative control court (i.e., where the charging document is filed) - absent an order for change of venue - dictates in which federal circuit appellate review lies.

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

http://media.ca1.uscourts.gov/pdf.opinions/22-1767P-01A.pdf

First Circuit Finds BIA has Authority to Sua Sponte Reopen for NACARA Relief

The First Circuit has determined that the Board of Immigration Appeals can use its sua sponte authority to reopen for a non-citizen to pursue NACARA relief, rejecting the argument that a motion to reopen under 8 C.F.R. § 1003.43(e)(1) is the only available means for reopening for NACARA relief.

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

http://media.ca1.uscourts.gov/pdf.opinions/22-1599P-01A.pdf

First Circuit Reverses Agency for Discrediting Expert

The First Circuit has remanded a CAT claim in which the agency discredited an expert’s opinion without sufficient reason.

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

http://media.ca1.uscourts.gov/pdf.opinions/21-2002U-01A.pdf

First Circuit Finds that Massachusetts Conviction for Defacing Firearms is not a Deportable Offense

The First Circuit has determined that a Massachusetts conviction for defacing firearms is not a deportable firearms offense because it criminalizes conduct involving antique firearms.

The full text of Portillo v. U.S. Department of Homeland Security can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/22-1383P-01A.pdf

First Circuit Finds DOS Report Insufficient to Rebut Presumption of Future Harm

The First Circuit has determined that the Department of State Human Rights Report, coupled with the petitioner’s testimony that his political party had disbanded and the absence of harm to his non-politically active relatives in the his home country, was insufficient to rebut the presumption of future persecution.

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

http://media.ca1.uscourts.gov/pdf.opinions/22-1215P-01A.pdf

First Circuit Construes Former Citizenship Statute

The First Circuit, in construing former section 321(a) of the INA, has assumed that manifesting an intent to reside permanently in the US would be sufficient for derivation of citizenship, but found that a minor who abandoned his adjustment application by failing to appear at an interview without a reasonable explanation did not manifest such intent.

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

http://media.ca1.uscourts.gov/pdf.opinions/22-1496P-01A.pdf

First Circuit Finds that Good Faith Marriage Determination is Mixed Question of Fact and Law

The First Circuit has determined that the good faith marriage determination required by an I-751 waiver is a mixed question of fact and law, which the court maintains jurisdiction to review. The court noted the underlying factual findings would not be reviewable.

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

http://media.ca1.uscourts.gov/pdf.opinions/22-1561P-01A.pdf

First Circuit Remands Torture Case

The First Circuit has remanded a claim for protection under the Convention Against Torture, finding that harm inflicted was severe enough to constitute torture. “The assailants not only beat Hernandez-Martinez senseless; they also sliced his waist with a knife and intentionally burned the flesh on his foot as they repeated their threats, sending him unconscious to a hospital where he remained for three to four days.”

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

http://media.ca1.uscourts.gov/pdf.opinions/21-1448P-01A.pdf

First Circuit Finds In Absentia Must be Rescinded when NTA Lacks Information about First Hearing

The First Circuit has determined that an in absentia order must be rescinded when the Notice to Appear is missing the date of the first removal hearing. In so doing, the First Circuit disagreed with the Board of Immigration Appeals’ precedential decision in Matter of Laparra-Deleon.

The full text of Laparra-Deleon v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/22-1081P-01A.pdf

First Circuit Remands for Further Consideration of Imputed Gang Members as a PSG

The First Circuit has remanded a withholding case for further consideration of whether imputed membership in a gang can establish membership in a particular social group (PSG). The court noted that the policy reasons for rejecting former gang members as a PSG (namely, not rewarding former gang members for bad behavior) are not present when the gang membership is only imputed.

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

http://media.ca1.uscourts.gov/pdf.opinions/21-1267P-01A.pdf

First Circuit Rejects Willful Acceptance Standard for CAT

The First Circuit has determined that the Board of Immigration Appeals’ use of a “willful acceptance” instead of a “willful blindness” standard in Convention Against Torture cases is unlawful. The court also noted that the question of whether a government official’s conduct constitutes acquiescence to torture is a question of law, subject to de novo review in the court of appeals. Finally, the court remanded for further consideration of whether MS-13 is a de facto government actor.

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

http://media.ca1.uscourts.gov/pdf.opinions/21-1150P-01A.pdf

First Circuit Denies Nunc Pro Tunc 212(c) Relief to Former LPR

The First Circuit has found that a former lawful permanent resident, who lost his status when he was deported, was not eligible for 212(c) relief in a subsequent removal proceeding because he was inadmissible under 8 USC 1182(a)(9)(C).

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

http://media.ca1.uscourts.gov/pdf.opinions/21-1111P-01A.pdf

First Circuit Remands for Agency to Reconsider Psychological Report

The First Circuit has remanded a case for the agency to reconsider the impact of a psychological report that diagnosed the petitioner with PTSD and indicated she was suffering from memory impairment. The court indicated the report was critical for the agency to consider in light of the IJ’s adverse credibility determination.

The full text of Rivera-Medrano v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/20-1667P-01A.pdf