BIA Finds that Grant of Withholding that is Pending Review does not Justify Release on Bond

The Board of Immigration Appeals has found that a grant of withholding of removal that is pending appellate review by the Board does not justify release on bond when there are significant adverse factors present. In this case, those factors included “the respondent entered the United States unlawfully on September 6, 2023, does not have work history in this country, was arrested for petty theft on October 22, 2023, removed her court ordered GPS ankle monitor, and assisted her son in fleeing from law enforcement after shooting at a police officer.”

The full text of Matter of E-Y-F-G- can be found here:

https://www.justice.gov/eoir/media/1403191/dl?inline

BIA Addresses Standards for Administrative Closure

The Board of Immigration Appeals has determined that the basis for granting administrative closure must be related to achieving some foreseeable resolution to the ongoing proceedings within a reasonably short period of time.

“Considering the totality of the circumstances, including whether there is a persuasive reason for removal proceedings to be resolved on the merits, we conclude that administrative closure is not warranted. The respondent has an application for asylum and related relief ripe for adjudication before the Immigration Judge. The resolution of the respondent’s application for asylum and related relief, and any direct appeal taken thereof, would conclude removal proceedings before us. Moreover, TPS is a collateral benefit that does not impact the outcome of removal proceedings. Although USCIS maintains initial jurisdiction over the respondent’s application for TPS, the respondent would remain eligible for TPS even with a final order of removal.” The Board also took special note that the respondent in this matter was detained.

The full text of Matter of B-N--K- can be found here: https://www.justice.gov/eoir/media/1402756/dl?inline

Ninth Circuit Addresses Scope of IAC Claims

The Ninth Circuit has determined that the Board of Immigration Appeals’ power to consider claims of ineffective assistance of counsel based on conduct of counsel that occurred after a final order of removal had been entered includes the power to review deficient performance that occurs before a different tribunal, including the Ninth Circuit. “Given this longstanding precedent, the Board acted arbitrarily when it denied Li’s motion to reopen on the sole basis that Li’s claimed ineffective assistance occurred before a ‘different tribunal.’”

“If the Board believed it had no discretion to review ineffective assistance claims based on conduct before a different tribunal, then the agency abused its discretion. If the Board instead believed that Li should have sought relief in the Ninth Circuit after the petition had been dismissed, it does not explain how that would comport with its own procedural requirements under Matter of Lozada, which insists upon such issues being raised before the Board in the first instance. Finally, if the Board harbored concerns grounded in the separation-of-powers doctrine—a topic it did not raise in its decision—it does not explain how those concerns manifest in Li’s case and not any of the cases that came before it. The dissent accuses us of requiring the Board to invoke the magic words ‘separation-of-powers’ in its decision. But it is not merely the Board’s failure to mention the doctrine; it is its failure to provide a reasoned explanation why an attorney’s failure to file an opening brief before the Ninth Circuit should implicate separation-of-powers concerns when the exact same thing happened in Lata and we explained that the petitioner should have first pursued relief with the Board.”

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

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/06/10/18-70278.pdf

Ninth Circuit Acknowledges that Inability to Practice Religion is a Harm Relevant to Persecution Analysis

The Ninth Circuit has determined that when threats and harm to an asylum applicant and her family restrict the applicant’s ability to practice her religion, that restriction is a form of harm that must be considered when determining if she has experienced past persecution.

“De Souza Silva experienced a death threat explicitly linked to animus against Candomblé practitioners. The masked man specifically invoked the murder of Simone’s father, who had been murdered because of his religious practice. De Souza Silva additionally experienced other harm, including escalating vandalism paired with menacing and pejorative messages.”

“Ultimately, in evaluating whether the cumulative effect of the harms and abuses De Souza Silva experienced rose to the level of persecution, the agency was required to consider the effect of her experiences on her ability to practice her religion freely. The agency failed to do so, never mentioning her religious practice as a consideration nor citing any of the related evidence in the record about the issue.”

The full text of De Souza Silva v. Bondi can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2025/06/11/24-834.pdf

Fourth Circuit finds no Jurisdiction to Review USCIS Adjudication Withholding Policy

The Fourth Circuit has determined that federal courts lack jurisdiction to review USCIS’s policy of withholding adjudication of adjustment of status applications when there is a visa retrogression. “Here, USCIS is not only granted discretion with respect to the ultimate decision on whether to grant adjustment of status. USCIS also has the discretion to “prescribe” the regulations that guide its exercise of the discretionary authority.”

The full text of Kale v. Alfonso-Royals can be found here:

https://www.ca4.uscourts.gov/opinions/231799.P.pdf

Fourth Circuit Finds that Federal Conviction for Inducing a Minor to Engage in Illegal Sexual Activity is Aggravated Felony and Crime of Child Abuse

The Fourth Circuit has determined that a federal conviction for inducing a minor to engage in illegal sexual activity is a sexual abuse of a minor aggravated felony and a crime of child abuse. In so holding, the court determined that “Esquivel-Quintana’s holding is narrow, applying only to a strict liability statute, and that it does not inform the broader question of whether an offense with a criminal mens rea constitutes sexual abuse of a minor.”

The full text of Hsieh v. Bondi can be found here: https://www.ca4.uscourts.gov/opinions/241013.P.pdf

Second Circuit finds DOS Violated US Citizen's Due Process Rights when Revoking CRBA

The Second Circuit has determined that the Department of State violated a U.S. citizen’s due process rights when it confiscated and revoked his Consular Report of Birth Abroad and would not issue him a temporary passport to return to the United States to attend an administrative hearing contesting the revocation. The court also expressed skepticism that the only proof of fraud DOS produced was a written “confession” entirely in English signed by a person who is illiterate in English.

The full text of Hadwan v. Department of State can be found here:

https://ww3.ca2.uscourts.gov/decisions/isysquery/65d213a2-d436-4be7-a7f0-e13649f58212/9/doc/22-1624_complete_opn.pdf

Second Circuit Finds Consideration of Border Interview Appropriate under REAL ID

The Second Circuit has determined that it is appropriate to consider statements made during a border interview under the REAL ID Act’s “totality of the circumstances” standard for credibility.

The full text of Singh v. Bondi can be found here:
https://ww3.ca2.uscourts.gov/decisions/isysquery/ee5a9581-65e6-4df0-8d62-453b78c084f2/10/doc/22-6077_complete_opn.pdf

Second Circuit Finds that Hardship Determination is Subject to Clear Error Review

The Second Circuit has determined that it will review the agency’s hardship determination as it relates to cancellation of removal for nonlawful permanent residents under a clear error standard. Under the deferential clear-error standard of review, “a finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ‘Clear error’ review generally has been recognized as being less deferential to the factfinder than ‘substantial evidence’ review, and though the difference between the two standards is, on the surface, subtle, traditionally, clear error review has been considered somewhat stricter (i.e., allowing somewhat closer judicial review) than the substantial evidence standard.“

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

https://ww3.ca2.uscourts.gov/decisions/isysquery/ee5a9581-65e6-4df0-8d62-453b78c084f2/2/doc/22-6267_opn.pdf

BIA Finds that Noncompliant NTA is not Good Cause to Withdraw Pleadings

The Board of Immigration Appeals has determined that “[t]he lack of time and place information on the notice to appear does not render untrue or incorrect a respondent’s admission to the factual allegations or invalidate the charges of removability in the notice to appear and therefore is not a proper basis for granting a respondent’s motion to withdraw pleadings.”

The full text of Matter of Lopez-Ticas can be found here:

https://www.justice.gov/eoir/media/1402101/dl?inline

BIA Finds that Supplement to MTR is a Second MTR

The Board of Immigration Appeals has held that “[a] supplemental filing to a motion to reopen that raises claims that are fundamentally different from those raised in the original motion is treated as a separate motion.”

“The Board entered the final administrative order in these proceedings on July 30, 2021, and the respondent timely moved to reopen this decision on October 27, 2021. The respondent filed a ‘supplement’ requesting VAWA relief on February 6, 2023, over 18 months after our final order. The contents of these two filings are wholly unrelated. A motion claiming a respondent suffered battery or extreme cruelty by a spouse is fundamentally different from a motion claiming that spouse has petitioned for the respondent to become a lawful permanent resident or would suffer exceptional and extremely unusual hardship if the respondent were removed. Accordingly, we find the respondent’s ‘supplemental’ motion to reopen to apply for adjustment of status and cancellation of removal under VAWA is in fact a second motion to reopen that was not timely filed within 1 year of the final administrative order of removal. “

The full text of Matter of D-E-B- can be found here:

https://www.justice.gov/eoir/media/1401736/dl?inline

DC Circuit Permits APA Challenge to FAM Guidance to Move Forward

The Court of Appeal for the District of Columbia has issued a decision permitting a challenge to the Foreign Affairs Manual’s guidance that a visa can be denied if there is a “reason to believe” the applicant has previously made a material misrepresentation. The court found that this forward facing challenge to the FAM was not a challenge to a visa denial, and thus, was not covered by the doctrine of consular nonreviewability. “[W]e are not confident that Congress authorized a consular officer unilaterally to deem a person to have made willful misrepresentations and thereby trigger permanent ineligibility for a visa based only on an implicit ‘reason to believe’ standard – especially considering its decision to make that standard explicit for other categories of noncitizens posing elevated risks to national interests.”

The full text of Pietersen v. Department of State can be found here:

https://media.cadc.uscourts.gov/opinions/docs/2025/05/24-5092-2118190.pdf

DC Circuit Addresses Appropriate Evidentiary Standard in Adam Walsh Act Cases

The Court of Appeals for the District of Columbia has addressed the seemingly conflicting evidentiary standards laid out by USCIS in a 2007 memo - which requires an I-130 petitioner who has been convicted of certain crimes against children to prove beyond a reasonable doubt that he is not a danger to the non-citizen beneficiary - and the decision in Matter of Chawathe, which holds that petitioner must only prove by a preponderance of the evidence that the petition should be granted. “In other words, the issue before us is whether 8 U.S.C. § 1154(a)(1)(A)(viii)(I), in granting USCIS ‘sole and unreviewable discretion’ to ‘determine[] that the citizen poses no risk,’ also affords the agency discretion to depart from its own binding regulations or precedents in making this determination. We hold that it does not.”

“While Congress has granted USCIS unreviewable discretion to determine whether a citizen petitioner poses no risk to the Form I-130 beneficiary, USCIS has not provided ‘clear and convincing evidence of congressional intent to preclude judicial review’ over its decision to exert this discretion in a manner that violates its own binding regulations and published precedents. As the Supreme Court has explained, Congress may shield from judicial review an agency’s ultimate determination without precluding courts from reviewing the ‘practice[s] or procedure[s] employed in making’ such individual determinations.”

“It is possible that Chawathe does not apply in the AWA context and that, in making its preponderance-of-the-evidence standard precedential, the Department did not mean to disturb the beyond-any-reasonable doubt standard that may have already been in place for no-risk determinations under the AWA. But because the District Court did not address this possibility, and because the Government does not make this argument before us, we cannot conclude that the agency has not violated its own binding precedent. Nothing in the Act required the agency to adopt any particular standard. But if there was a standard in place, then the agency was required to follow it.”

The full text of Castaneira v. Noem can be found here: https://media.cadc.uscourts.gov/opinions/docs/2025/05/23-5204-2118185.pdf

Eleventh Circuit finds that Noncompliant NTA still Triggers Stop-Time Provision in 212(h)

The Eleventh Circuit has determined that a non-citizen ceases to accrue residence in the United States after the filing of a Notice to Appear, even if the Notice to Appear is missing the time and date of the initial removal hearing.

The full text of Hamilton v. U.S. Attorney General can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/202314095.pdf

Ninth Circuit Applies Substantial Evidence Standard to Non-LPR Cancellation Hardship Analysis

The Ninth Circuit has determined that it will apply substantial evidence review to the agency’s determination that an applicant has not demonstrated exceptional and extremely unusual hardship to a qualifying relative for the purpose of an application for cancellation of removal for non-lawful permanent residents.

The full text of Gonzalez-Juarez v. Bondi can be found here:
Https://cdn.ca9.uscourts.gov/datastore/opinions/2025/05/20/21-927.pdf

Second Circuit Applies to Jurisdictional Bar to Challenge to USCIS Denial of Adjustment Application

The Second Circuit has determined that 8 USC 1252(a)(2)(B)(i) bars judicial review not only of judgments by an immigration court, but also of decisions by USCIS to deny adjustment of status applications.

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

https://ww3.ca2.uscourts.gov/decisions/isysquery/37f348a7-8b75-483f-8821-f76f66c7f1b8/6/doc/24-2304_opn.pdf

First Circuit Declines to Apply Mailbox Rule to Untimely Filed PFR

The First Circuit has declined to apply the mailbox rule to a detainee whose petition for review was mailed prior to the filing deadline by his spouse, when the petition did not arrive at the clerk’s office until after the deadline had passed.

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

www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1511P-01A.pdf

BIA Subjects Applicants for Admission to Mandatory Detention

The Board of Immigration Appeals has determined that an applicant for admission who is arrested and detained without a warrant while arriving in the United States, whether or not at a port of entry, and subsequently placed in removal proceedings is detained under section 235(b) of the Immigration and Nationality Act and is ineligible for any subsequent release on bond under section 236(a) of the INA.

“An ‘applicant for admission; is defined, in relevant part, as an alien ‘who arrives in the United States whether or not at a designated port of arrival.’ An alien, like the respondent, ‘who tries to enter the country illegally is treated as an ‘applicant for admission.’” The Board further noted that the only exception to mandatory detention of applicants for admission is parole, which suggests that anyone who meets the definition of an applicant for admission who is not detained is actually paroled in the United States. However, the parole is terminated by the service of a Notice to Appear, which in turn, permits later detention under section 235(b) of the non-citizen.

The full text of Matter of Q. Li is found here:

https://www.justice.gov/eoir/media/1400431/dl?inline

BIA Addresses Role of State Court Bail Decision in Immigration Bond Determination

The Board of Immigration Appeals has determined that an Immigration Judge may consider a State court’s decision as to dangerousness and the amount of bail that was set in criminal proceedings, but that the Immigration Judge does not owe a State court custody order deference in immigration bond proceedings. “The legal standards for bail in State court may be different than in Immigration Court and there may be a variety of reasons why an Immigration Judge may or should reach a different determination than a State court judge. It is for the Immigration Judge to make his or her own determination as to dangerousness under the custody redetermination provisions of the INA and applicable precedent.”

The full text of Matter of Choc-Tut can be found here:

https://www.justice.gov/d9/2025-05/4092.pdf

BIA Rules on Sufficiency of E-Service of Briefing Deadline

The Board of Immigration Appeals has concluded that electronic notification of a briefing schedule sent to the email address of record is sufficient notice in a case eligible for electronic filing, regardless of whether an alien’s attorney or accredited representative opens the email or accesses the document via the ECAS Case Portal. “As with documents served through the mail, a rebuttable presumption of delivery applies when a party has been sent electronic notification of a briefing schedule through the procedures provided for in the ECAS regulations, but this presumption is weaker than the presumption that applies to documents sent by certified mail because electronic service through ECAS does not involve the use of a signed receipt or other affirmative evidence of delivery.“

The full text of Matter of F-B-G-M & J-E-M-G- can be found here:

https://www.justice.gov/eoir/media/1400301/dl?inline