Sixth Ciruit Finds that Hardship Determination for Waiver is not Reviewable

The Sixth Circuit has determined that the agency’s hardship determinations related to an unlawful presence waiver (212(a)(9)(B)(v)) and a fraud waiver (212(i)) are not reviewable by a federal court. Unlike the hardship determination for a cancellation of removal case, which is a mixed question of fact and law, hardship determinations related to these waivers are committed exclusively to the Attorney General.

The full text of Rahman v. Bondi can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0058p-06.pdf

Third Circuit Applies Substantial Evidence Standard to Hardship Review

The Third Circuit has determined that the substantial evidence standard applies to a federal court’s review of the agency’s hardship finding in a cancellation of removal case.

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

https://www2.ca3.uscourts.gov/opinarch/213166p.pdf

Second Circuit Disapproves of Paroling LPR Facing CIMT Charges

The Second Circuit has determined that Homeland Security may not parole a returning lawful permanent resident based solely on pending charges for a crime involving moral turpitude. “Here, we are presented with the question of whether DHS may parole an LPR at the border who has been charged with – but not yet convicted of – a CIMT. In analyzing this question, we heed Centurion’s holding that an LPR becomes an alien applying for admission for purposes of section 1101(a)(13)(C) upon the commission, rather than the conviction, of a crime. But we are also cognizant of the reality that, without a conviction, DHS will be hard pressed to prove by clear and convincing evidence that the LPR actually committed the crime in question at the time of reentry. If DHS fails to sustain its burden of proving otherwise, the default presumption governs that an LPR is not an applicant for admission”

“Critically, the INA does not provide that an LPR may be treated as seeking admission when he has been ‘charged with a crime’ or is ‘believed to have committed a crime;’ it permits such treatment only when an LPR ‘has committed’ a crime. And because DHS bears the burden of proving by clear and convincing evidence that a returning [LPR] is to be regarded as seeking an admission, we do not see how charging documents alone – without more – could carry DHS’s burden of demonstrating that a crime had been committed at the time of an LPR’s reentry.”

The full text of Lau v. Bondi can be found here:

https://ww3.ca2.uscourts.gov/decisions/isysquery/9fb1ca2c-a88a-4517-8f92-8c712c43b46f/13/doc/21-6623_opn.pdf

Second Circuit Remands Political Opinion Asylum Claim

The Second Circuit has remanded the asylum claim of a Chinese national who was detained and beaten for protesting government housing demolition policies. The Court was unpersuaded by the agency’s conclusion that the petitioner was the target of a legitimate prosecution, rather prosecution, when he had not been charged with any crime.

The full text of Tian v. Bondi can be found here:

https://ww3.ca2.uscourts.gov/decisions/isysquery/9fb1ca2c-a88a-4517-8f92-8c712c43b46f/11/doc/22-6053_opn.pdf

Second Circuit Finds that NY Second Degree Attempted Assault is Crime of Violence

The Second Circuit has determined that a New York conviction for second degree attempted assault under NYPL 120.05(7) is a crime of violence because it requires physical force causing injury to another person. Given the similarity between the definition of a crime of violence for immigration and criminal sentencing purposes, this case will likely be treated as precedential for immigration purposes as well.

The full text of U.S. v. Cooper can be found here:

https://ww3.ca2.uscourts.gov/decisions/isysquery/9fb1ca2c-a88a-4517-8f92-8c712c43b46f/3/doc/23-6911_opn.pdf

Second Circuit Weighs in on Procedural Safeguards for Incompetent Respondent

The Second Circuit has determined that an Immigration Judge must “explain the adequacy of the safeguards implemented with reference to the character, scope, and severity of the noncitizen’s disabilities.” “Without reference to the character, scope, and severity of the incompetency to proceed absent safeguards, a [reviewing] court is stymied in its ability to evaluate the adequacy of the chosen safeguards.”

“Faced with substantial evidence of disabilities supporting the possibility that Reid was incompetent to continue without safeguards, the IJ did implement a number of safeguards. But the BIA erred in accepting her conclusory assertion, without supporting discussion, that the adopted safeguards were adequate. The record provides no support for that conclusion; it may well have been that additional safeguards to protect Reid’s rights and privileges should have been considered. For our purposes, because the IJ gave no consideration to the character, scope, and severity of Reid’s disabilities, she deprived a reviewing court of the ability to assess the adequacy of the chosen safeguards.”

The full text of Reid v. Bondi can be found here:

https://ww3.ca2.uscourts.gov/decisions/isysquery/9fb1ca2c-a88a-4517-8f92-8c712c43b46f/1/doc/20-3324_amd_opn.pdf

First Circuit Applies "Clear, Unequivocal, and Convincing" Standard to Alienage

The First Circuit has determined that Homeland Security must prove alienage by "clear, unequivocal, and convincing” evidence, and that this standard is higher than “clear and convincing” evidence.

The full text of Rosa v. Bondi can be found here:

https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1240P-01A.pdf

First Circuit Finds BIA does not have Settled Course of Reopening after Successful Post-Conviction Relief

The First Circuit has determined that the Board of Immigration Appeals does not have a settled course of granting motions to reopen filed by former lawful permanent residents who have successful vacated the convictions that underpined their removal orders.

The full text of Phimmady v. Bondi can be found here:

https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1330P-01A.pdf

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

Eleventh Circuit Construes Former Derivative Citizenship Statute

The Eleventh Circuit has concluded that the requirements of former section 321(a) of the Immigration and Nationality Act are not met when the citizen mother re-married the non-citizen father prior to her naturalization, even though the mother naturalized before the child’s 18th birthday, and had earlier separated from the non-citizen father. Because the mother re-married the non-citizen father prior to her naturalization, not all of the elements of derivative citizenship (namely, a legal separation from the non-citizen parent) when the last element (the mother’s naturalization) took place.

The full text of Turner v. Attorney General can be found here: https://media.ca11.uscourts.gov/opinions/pub/files/202211207.pdf

Fourth Circuit Reverses BIA Denial of CAT to Honduran Man Attacked by Gang Members

The Fourth Circuit has reversed the Board of Immigration Appeals’ reversal of an Immigration Judge’s grant of protection under the Convention Against Torture. The applicant was shot by gang members and his family members threatened and attacked by gang members. During one of these incidents, the gang members were accompanied by a man in a military uniform.

The full text of Funez-Ortiz v. McHenry can be found here: https://www.ca4.uscourts.gov/opinions/232290.P.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

Ninth Circuit Finds that NV Conviction for Felony Battery Resulting in Substantial Bodily Harm is Crime of Violence

The Ninth Circuit has determined that. Nevada conviction for felony battery resulting in substantial bodily harm is a crime of violence.

The full text of Villagomez v. McHenry can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/01/24/23-3558.pdf

Ninth Circuit Finds that CA Witness Intimidation is an Aggravated Felony

The Ninth Circuit has determined that a California conviction for dissuading a witness by force or fear qualifies an obstruction of justice aggravated felony if accompanied by a sentence of at least one year of incarceration. In so doing, the Court analyzed the conduct criminalized by all three subsections of California Penal Code section 136.1, and found they all match the generic definition of obstruction of justice.

The full text of Godoy-Aguilar v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/01/13/19-70960.pdf

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

Third Circuit Finds that PA Felony Eluding Statute is Divisible

The Third Circuit has determined that a Pennsylvania statute criminalizing eluding the police as a felony is divisible between three grading factors. The Court further found that the third grading factor could be violated by a driver who recklessly flees or attempts to elude law enforcement in an attempt to transport himself or another person to a hospital would still violate the statute. This conduct is not reprehensible, and thus, the statute is not a categorical match to the definition of a crime involving moral turpitude.

The full text of Ndungu v. Attorney General can be found here: https://www2.ca3.uscourts.gov/opinarch/202562p.pdf

Third Circuit Finds that Jurisdiction Stripping Provision in 8 USC 1252 Applies Outside Removal Proceedings

The Third Circuit has determined that the jurisdiction stripping provisions in 8 U.S.C. 1252(a)(2)(B) apply to appeals that arise outside of the petition for review process. Accordingly, the court found that federal courts lacked jurisdiction to review a challenge under the Administrative Procedure Act to USCIS’s policy of holding an adjustment of status application in abeyance when the priority date retrogresses during the pendency of hte permanent residency application.

The full text of Geda v. United States Citizenship and Immigration Services can be found here:

https://www2.ca3.uscourts.gov/opinarch/232195p.pdf

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

Ninth Circuit Issues Amended Decision on Reviewability of Bond Denial

The Ninth Circuit has issued an amended decision in Martinez v. Clark, finding that it has jurisdiction to review the agency’s determination that a non-citizen is a danger to the community under an abuse of discretion standard. The court concluded that the dangerousness determination is a mixed question of fact and law.

The full text of Martinez v. Clark can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/27/21-35023.pdf