Ninth Circuit Addresses Justifiable Delay by Domestic Violence Survivor

The Ninth Circuit has remanded a case to the agency to reevaluate a petitioner’s evidence of her delay in meeting a filing deadline. “Rodriguez was in the process of gathering evidence when she fled her abusive partner and was no longer able to access the documents that she had already collected. That evidence became unavailable once she became homeless, destitute, and unable to contact her attorney. Moreover, we see no reason to penalize Rodriguez for failing to meet a December 2017 deadline that the IJ vacated and extended to September 2018, particularly because neither party has asked us to do so. The BIA should therefore decide on remand whether any evidence that Rodriguez might have been able to access years earlier but that became unavailable more than ten months before the September 2018 filing deadline was still ‘reasonably available’ to her as the deadline approached.”

The full text of Alcarez-Rodriguez v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2023/12/28/21-411.pdf

Second Circuit Applies Sanchez Sosa to Motion to Remand

The Second Circuit has applied the factors outlined in Matter of Sanchez Sosa - which typically apply to a motion to continue due to a pending U visa application - to a motion to remand a case pending before the Board of Immigration Appeals.

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

https://ww3.ca2.uscourts.gov/decisions/isysquery/24e4fa91-b28a-4a67-a25f-47efb157f491/10/doc/21-6043_amd_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/24e4fa91-b28a-4a67-a25f-47efb157f491/10/hilite/

Second Circuit Applies Sanchez Sosa to Motions to Remand

The Second Circuit has determined that the factors outlined in Matter of Sanchez Sosa apply to a motion to remand filed when a case is on appeal to the Board of Immigration Appeals.

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

https://www.ca2.uscourts.gov/decisions/isysquery/0c9c1407-6be4-4d19-b675-9781ca9b987f/7/doc/21-6043_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/0c9c1407-6be4-4d19-b675-9781ca9b987f/7/hilite/

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

Eighth Circuit Remands Case for Application of Sanchez Sosa Factors

The Eighth Circuit vacated the agency’s denial of a motion to reopen and remand to seek a continuance in light of a U visa application filed during the pendency of the appeal. The court noted that the Board can either apply the Sanchez Sosa factors or remand the case to an Immigration Judge to do so.

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

https://ecf.ca8.uscourts.gov/opndir/21/08/202200P.pdf

Third Circuit Grants Petition for Review of Nepali Asylum Seeker

The Third Circuit has granted a petition for review filed by a Nepali asylum seeker, finding the Board of Immigration Appeals failed to accept as true declarations submitted with a motion to remand, without providing a reason to believe that the declarations are inherently unbelievable.

The full text of Tilija v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/183109p.pdf

Sixth Circuit Addresses Retroactivity of AEDPA and IIRIRA

The petitioner was convicted in 1995 of a shoplifting offense.  At the time, his conviction would not have posed a statutory bar to suspension of deportation.  However, when the Government ultimately initiated removal proceedings against him 2010, suspension of deportation had been replaced with cancellation of removal, and the conviction was a bar to cancellation of removal.  The Immigration Judge determined that the changes in the law brought about by AEDPA and IIRIRA that prevented him applying for suspension of removal (which had been abolished) and rendered him ineligible for cancellation of removal applied retroactively.

On appeal to the Board of Immigration Appeals, the petitioner requested a remand because his U.S. citizen daughter had turned 21 and filed a petition to immigrate him.  The Board denied his motion, finding that he did not merit remand as a matter of discretion, given his 4 DUI convictions and other criminal history.  The Board affirmed the Immigration Judge's retroactivity analysis.

The Sixth Circuit affirmed the agency's decisions, finding the language of AEDPA to be clearly retroactive.  The Sixth Circuit also affirmed the Board's discretionary denial of the motion to remand, finding the petitioner had not presented sufficient evidence of equities or rehabilitation to the Board to compel an exercise of discretion.

The full text of Velasco-Tijero v. Lynch can be found here: http://www.ca6.uscourts.gov/opinions.pdf/15a0180p-06.pdf