Fifth Circuit Distinguishes Decision in Rodriguez

The Fifth Circuit has distinguished its decision in Rodriguez v. Garland - which precluded entry of an in absentia order when the Notice to Appear was missing the time and date of the first hearing and the applicant did not receive a notice of hearing. In the instant case, the petitioner admitted that he did receive the notice of hearing, and therefore, the Court declined to mandate reopening based on the defective Notice to Appear.

The decision in Campos-Chaves v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/20/20-60262-CV1.pdf

Fourth Circuit Defers to Matter of Song

The Fourth Circuit has deferred to the Board’s decision in Matter of Song, which requires a K-1 entrant to submit an affidavit of support from the K-1 petitioner to adjust status even if the entrant and petitioner are now divorced.

“Song reads Sesay as granting her some leeway around strict application of the regulatory requirement that Sang, as her petitioner, must be her sponsor. In other words, as Song’s argument goes, Sesay recognized that sometimes we must bend the rules so that the K-1 process can function. So too here, she argues: if we don’t allow Song to meet public-charge requirements by enlisting a co-sponsor aside from Sang, then status adjustment will be nearly unavailable for people in Song’s situation. But Sesay doesn’t support, much less compel, Song’s position. To the contrary, Sesay confirms that K-1 beneficiaries still must satisfy public-charge requirements and other criteria for admissibility. And 8 C.F.R. § 213a.2 makes clear that K-1 beneficiaries can’t satisfy those requirements absent an affidavit of support from the petitioner. Sesay involved an ambiguous statute and the lack of applicable clarifying regulations, while here, the regulations apply on their face to Song’s situation. Nor is Song’s proposal necessary for the K-1 process to function.”

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

https://www.ca4.uscourts.gov/opinions/182496.P.pdf

Third Circuit Defines Fundamental Rights

The Third Circuit has reiterated that only a violation of a fundamental right results in automatic remand without a showing of prejudice. “For a regulation to protect a fundamental right, a violation must be a structural error that necessarily makes proceedings fundamentally unfair. Very few rights will fit this extraordinary category. [T]hese include the rights to counsel and to an unbiased judge. But rights outside this category are not fundamental enough to trigger [a] presumption of prejudice.”

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

https://www2.ca3.uscourts.gov/opinarch/213317p.pdf

Third Circuit Finds that Non-Citizen Knowingly and Intelligently Waived Appeal

The Third Circuit has rejected a claim that a non-citizen was coerced into waiving his appellate rights because the judge advised him that he would likely remained detained for another year while awaiting the outcome of the appeal. “[T]t would require much more than an Immigration Judge’s predictive assessment of the timeline for an administrative appeal to compel the conclusion that Mendoza’s waiver was coerced – particularly since such an informative assessment could have augmented his knowledge and intelligence in deciding whether to waive the right.”

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

https://www2.ca3.uscourts.gov/opinarch/212322p.pdf

Second Circuit Clarifies CAT Standard

The Second Circuit has determined that acquiescence to torture by any official is sufficient to warrant protection under the Convention Against Torture. “Where, as here, the primary perpetrator of likely harm is a gang, the relevant state action question (should the BIA reach it) is whether any public official, or any other person, including low-level local police officers, when acting under color of law, will participate or acquiesce in harm that the gang is likely to inflict and that is recognized as torture under section 1208.18(a).”

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

https://www.ca2.uscourts.gov/decisions/isysquery/b71fbe28-045a-4166-b765-a790b8752b29/6/doc/18-2281_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/b71fbe28-045a-4166-b765-a790b8752b29/6/hilite/

AG Restores IJs' and BIA's Inherent Authority to Terminate Proceedings

The Attorney General has restored the authority of Immigration Judges and the Board of Immigration Appeals to terminate proceedings, particularly where the respondent will seek relief before USCIS, where the removal proceedings would cause adverse effects during consular processing, or where the respondent has obtained lawful permanent residency after being placed in removal proceedings.

The full text of Matter Coronado Acevedo can be found here:

https://www.justice.gov/eoir/page/file/1552761/download

Seventh Circuit Limits Retroactive Application of Thomas & Thompson

The Seventh Circuit has determined that retroactive application of Matter of Thomas & Thompson to sentencing modifications entered before the issuance of the decision would be impermissible. The decision, however, was entitled to deference as applied to more recent sentence modifications.

The court also determined that an Indiana conviction for neglect of a dependent is a crime involving moral turpitude. The statute requires intentional or knowing conduct, namely confinement which is likely to result in a harm such as disfigurement, mental distress, extreme pain or hurt, or gross degradation, and yet does not necessarily endanger the dependent’s life or health.

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

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2022/D11-08/C:19-3437:J:Sykes:aut:T:fnOp:N:2959226:S:0

Fourth Circuit Finds PFR Deadline Runs from Date of Order Regardless of Date of Service

The Fourth Circuit has determined that the 30-day filing deadline for a petition for review runs from the date of the order, not the date the order is served on the parties.

The full text of Santos-de Jimenez v. Garland can be found here:

https://www.ca4.uscourts.gov/opinions/211496.P.pdf

Fourth Circuit Applies De Novo Review to Equitable Tolling

The Fourth Circuit has determined that “the BIA’s decision to deny equitable tolling presents a mixed question we must review de novo.” The court noted that a “noncitizen needs to act only with ‘reasonable,’ ‘not maximum feasible diligence.’” The court also noted that when a motion to reopen is based on a change in law (in this case, the Supreme Court’s decision in Dimaya), the diligence requirement begins no earlier than the change in law. But even then, the court must ask when the petitioner reasonably could have discovered the change in law, taking into account the petitioner’s financial circumstances and ability to access counsel.

“Still, he discovered his rights just one year after the Court enunciated them. Giving 'due consideration to the reality that many departed aliens are poor, uneducated, unskilled in the English language, and effectively unable to follow developments in the American legal system, we hold Williams could not reasonably have been expected to have filed earlier.”

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

https://www.ca4.uscourts.gov/opinions/201854.P.pdf

An amended opinion can be found here:

https://www.ca4.uscourts.gov/opinions/201854.p.pdf

Ninth Circuit Finds no Jurisdiction to Review Constitutional Challenges to Expedited Removal Order

The Ninth Circuit has found that it lacks jurisdiction to review any constitutional challenges to an expedited removal order, including any credible fear proceedings.

The full text of Mendoza-Linares v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/10/24/20-71582.pdf

The court has declined to rehear the case en banc:

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/07/05/20-71582.pdf

Tenth Circuit Applies Reinstatement Bar to Motion to Reconsider

The Tenth Circuit has determined that the reinstatement provision at 8 USC 1231(a)(5) prevents reconsideration of a removal order. The court also found that a prior reinstatement of the order is sufficient to trigger this bar, even if the order has not been again reinstated since the petitioner’s most recent illegal entry.

The full text of Zapata-Chacon v. Garland can be found here:

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110758299.pdf

Ninth Circuit Addresses Authority to Issue Injunction

The Ninth Circuit has determined that the jurisdiction stripping provision at 8 USC 1252(f)(1) does not affect a court’s authority to issue an injunction requiring USCIS to timely adjudicate SIJS petitions because section 235(d)(2) of the TVPRA (which contains the relevant SIJS provisions) was passed after the effective date of IIRIRA.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/11/03/20-36052.pdf

Ninth Circuit Permits Reliance on I-213 in PSC Determination

The Ninth Circuit has reaffirmed the presumed validity of a Form I-213, even when it is used to determine that an individual was convicted of a particularly serious crime. In so doing, the court distinguished its decision in Alcaraz-Enriquez by noting that the petitioner did not challenge the accuracy of the Form I-213.

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/10/31/20-72138.pdf

Fourth Circuit Rejects Gender- and Crime Witness-Based PSG

The Fourth Circuit has rejected the particular social group comprised of “Salvadorean women who are witnesses to gang criminal activity and targeted because they filed a police report.”

The full text of Morales v. Garland can be found here: https://www.ca4.uscourts.gov/opinions/201305.P.pdf

Fourth Circuit Finds Asylum Seeker was Persecuted because of Land Ownership and not Family Ties

The Fourth Circuit has determined that an asylum seekers was persecuted because gang members believed she was the heir to her late common law spouse’s land, and not because of her family ties to him.

The full text of Madrid-Montoya v. Garland can be found here:

https://www.ca4.uscourts.gov/opinions/202072.P.pdf

Second Circuit Upholds One Central Reason Standard in Withholding of Removal Cases

The Second Circuit has deferred to the agency’s requirement that a protected ground be “one central reason” for persecution in order to qualify for withholding of removal. The Court concluded that the INA does not unambiguously provide the proper standard for assessing motive in withholding of removal claims, and thus, deferred to the agency’s interpretation as a reasonable one.

The full text of Quituizaca v. Garland can be found here: https://www.ca2.uscourts.gov/decisions/isysquery/528f9e9b-e56e-4402-b02c-11f5e4641530/2/doc/19-3470_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/528f9e9b-e56e-4402-b02c-11f5e4641530/2/hilite/

Second Circuit Rules on Standard of Review for Corroboration Determinations

The Second Circuit has determined that the Board of Immigration Appeals reviews de novo an Immigration Judge’s determination that an applicant should provide corroborating evidence because it is not a factual finding. However, the subsequent determination as to whether an applicant does not have the evidence and cannot reasonably obtain the evidence is a factual finding that the BIA reviews only for clear error.

The full text of Pinel-Gomez v. Garland can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/528f9e9b-e56e-4402-b02c-11f5e4641530/1/doc/19-3124_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/528f9e9b-e56e-4402-b02c-11f5e4641530/1/hilite/

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