July Litigation Updates

Board of Immigration Appeals (BIA)

Matter of ORTEGA-QUEZADA, 28 I&N Dec. 598 (BIA 2022) - July 28, 2022

Holding 
  • "The respondent’s conviction for unlawfully selling or otherwise disposing of a firearm or ammunition in violation of 18 U.S.C. § 922(d) (2018) does not render him removable as charged under section 237(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(C) (2018), because § 922(d) is categorically overbroad and indivisible relative to the definition of a firearms offense."

Fifth Circuit Court of Appeals

Ndudzi v. Garland, 41 F.4th 686 (5th Cir. 2022) - July 22, 2022 

Facts & Background
  • Ndudzi is from Cabinda, Angola. She filed a petition for review regarding her denied claim for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). She argued that the agency erred by not finding her credible and for failing to review corroborating evidence. 
  • The immigration judge (IJ) found her not credible based on inconsistencies between alleged statements made at her credible fear interview (CFI) compared to her immigration hearing. He identified her as a member of FLEC, a group that seeks independence through often violent means, and the immigration judge also labeled FLEC as a terrorist organization; even though, it has not been officially labeled as such by the U.S. government.
Notable Holdings & Rationale 
  • The Fifth Circuit found flaws in the immigration judge's and the Board of Immigration Appeals' (BIA) decisions saying, "when faced with seeming inconsistencies between the CFI notes and Ndudzi's sworn testimony, the Agency not only declined to credit Ndudzi's sworn testimony, it accepted as true the CFI notes' unsworn, non-verbatim statements, while ignoring evidence to the contrary." The Fifth Circuit goes on to explain how there was not an inconsistency between her statements made at the CFI and the immigration court proceeding, and that she had provided an explanation as well at the hearing. Alleged inconsistencies related to her best language, uniforms of her attackers, whom she entered the United States with, and her membership in FLEC. In their analysis, the Fifth Circuit cited to several cases including "Bassene v. Holder, 737 F.3d 530, 537 (9th Cir. 2013) (noting that even 'a contradiction between a petitioner’s asylum interview, where the interview was not recorded and notes were taken by hand, and removal hearing testimony [alone may not be] substantial evidence to justify an adverse credibility finding')." 
  • The Fifth Circuit stated that they generally defer to an immigration judge regarding an asylee's demeanor, and then elaborated, "But we have never held that demeanor alone supports an adverse credibility finding where the Agency failed to consider an asylee's corroborating evidence." Additionally, notably in footnote 2, the Court says that perhaps deference to an immigration judge to consider demeanor is unfounded "given the wealth of contemporary psychological research suggesting that subjective perception of a witness' demeanor is an unreliable indicator of the witness' veracity." Here the Fifth Circuit found that the alleged inconsistencies are not true inconsistencies, and the BIA ignored her supporting evidence, which included a statement from her partner, a child support advocate's statement, two experts on Cabinda and Angola, and country conditions evidence.  
  • Ndudzi's petition for review also covers the agency's denial of her CAT claim. The Fifth Circuit states, "The same defects noted above also apply to the Agency's denial of Ndudzi's CAT claim, with more force: whereas an adverse credibility finding is often fatal to an asylum petition, the CAT regulations specifically require the Agency to consider a petitioner's corroborating evidence even if the petitioner has been deemed not credible."  
  • In conclusion, the Fifth Circuit found that the "BIA and IJ relied heavily on an unsupported conclusion that Ndudzi is not a credible witness" and also stated that "there appears to be little dispute that, if Ndudzi's claims are true, she would be entitled to asylum. . ."  The Fifth Circuit vacated the decision and remanded the matter.

Masin-Ventura v. Garland, 41 F.4th 482 (5th Cir. 2022) - July 21, 2022

Facts & Background
  • Masin-Ventura is a citizen of El Salvador. She filed a petition of review to consider the BIA's affirmance of the IJ's denial of a motion to reopen removal proceedings and rescind an in absentia removal order. She argued through counsel that the BIA erred in finding that she was not entitled to equitable tolling of the deadline for the motion to reopen.  
  • Masin-Ventura claims that she acted with reasonable diligence considering extraordinary circumstances that existed--that her abusive partner prevented her from obtaining information about her immigration case. 
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Notable Holdings & Rationale
  • The Fifth Circuit determined that they could not find an abuse of discretion. The BIA agreed with the IJ that she had not pursued her claim with reasonable diligence. The court states, "As the IJ noted, Masin-Ventura did not state when the abusive relationship ended, nor did she identify when she learned of the in-absentia removal order or what steps she took following that discovery." The Fifth Circuit goes on to note that she had legal counsel from the same attorney that brought forward the petition for more than two years before filing the motion to reopen and included the date upon which they received a FOIA response. The court notes that the record does not contain adequate explanation regarding who caused the delay, whether that was the petitioner or her attorney, but included ethics rules requiring diligence. 
  • The Fifth Circuit denied the petition for review.

Gudiel-Villatoro v. Garland, 40 F.4th 247 (5th Cir. 2022) - July 8, 2022

Facts & Background 
  • Gudiel-Villatoro is a citizen of Guatemala. He moved during removal proceedings and did not update the immigration court with his new address. He failed to appear at a hearing, and the court issued an in absentia order. He filed a motion to reopen proceedings based on a deficient notice to appear (NTA) since it did not include the date and time of his removal hearing.
Notable Holdings & Rationale 
  • Relying upon Spagnol-Bastos v. Garland, 19 F. 4th 802 (5th Cir. 2021), the court found that he could not seek to reopen because of lack of notice based on the deficient NTA when he did not keep the court apprised of his updated address. The Court found that the BIA considered the totality of the evidence when deciding that he had proper notice. 
  • The Fifth Circuit found no error, and denied his petition for review.

State of Texas v. USA, 40 F.4th 205 (5th Cir. 2022) - July 6, 2022 

Facts & Background 
  • The states of Texas and Louisiana brought suit against the Department of Homeland Security (DHS), et. al.,  in the United States District Court for the Southern District of Texas related to the DHS memorandum dated September 30, 2021 ("Mayorkas Memo" or "Final Memo") directing immigration enforcement to assess "the individual and the totality of facts and circumstances." 
  • The district court determined that the rule conflicts with federal statutes, is arbitrary and capricious, and that its promulgation was procedurally invalid. DHS then requested that the Fifth Circuit stay the district court's vacatur of the rule. The Fifth Circuit stated in its opinion that it is "inclined to agree" with the district court.
Notable Holdings & Rationale 
  • Finding the states have standing, the Fifth Circuit turned to the merits of the case. Regarding 8 USC § 1252(f)(1), the Fifth Circuit found that the Supreme Court's decision in Garland v. Aleman Gonzalez, which limits injunctive relief, does not apply to vacatur. 
  • The Fifth Circuit found the Mayorkas Memo to be a final agency action and therefore reviewable by the courts. The Mayorkas Memo is "much more substantive than a general statement of policy" and, as such, had to undergo notice and comment procedures. 
  • Turning to the substance of the memo, the Fifth Circuit found that it conflicts with 8 USC §§ 1226(c) and 1231(a), both of which mandate the detention and removal of certain individuals. 
  • The Fifth Circuit distinguished its decision from the Sixth Circuit's recent opinion in Arizona v. Biden because, first, the Fifth Circuit has relevant binding precedent and, second, the factual record in the Fifth Circuit is sufficient to support the states' standing whereas that in the Sixth is not. 
  • The Fifth Circuit determined that DHS failed to make a strong showing of likelihood of success on appeal and denied DHS's motion for a stay pending appeal.

Supreme Court

USA v. Texas, --- S.Ct. ----, 2022 WL 2841804 - July 21, 2022 

Facts & Background 
  • DHS, et.al., appealed the Fifth Circuit's July 6, 2022 decision in State of Texas v. USA (summarized above) denying its request for a stay of the vacatur of the Mayorkas Memo.
Notable Holdings & Rationale 
  • The Supreme Court denied DHS's request for a stay, however, also construed the application as a petition for certiorari. The Court granted the petition for certiorari. 
  • Before the Court are the following questions, to be briefed and argued by the parties:
    • Whether the state plaintiffs have Article III standing to challenge the Department of Homeland Security’s Guidelines for the Enforcement of Civil Immigration Law 
    • Whether the Guidelines are contrary to 8 U.S.C. §1226(c) or 8 U.S.C. §1231(a), or otherwise violate the Administrative Procedure Act 
    • Whether 8 U.S.C. §1252(f)(1) prevents the entry of an order to “hold unlawful and set aside” the Guidelines under 5 U.S.C. §706(2) 
  • The case will be set for argument in the first week of the December 2022 argument session. For continued updates on this case and other ongoing federal litigation, please refer to Justice Action Center's Federal Litigation Tracker.