August Litigation Updates

Read case summaries of select BIA, Fifth Circuit Court of Appeals, and Supreme Court cases issued this last month.

Board of Immigration Appeals (BIA)

Matter of V-A-K-, 28 I&N Dec. 630 (BIA 2022) - Aug. 17, 2022

  • "A conviction for second degree burglary of a dwelling under section 140.25(2) of the New York Penal Law is categorically a conviction for generic burglary under section 101(a)(43)(G) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43)(G) (2018), because the statute requires burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation. United States v. Stitt, 139 S. Ct. 399 (2018), followed." 

Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022) - Aug. 4, 2022


"(1) The time and place requirement in section 239(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a)(1) (2018), is a claim-processing rule, not a jurisdictional requirement. 

(2) An objection to a noncompliant notice to appear will generally be considered timely if it is raised prior to the closing of pleadings before the Immigration Judge. 

(3) A respondent who has made a timely objection to a noncompliant notice to appear is not generally required to show he or she was prejudiced by missing time or place information. 

(4) An Immigration Judge may allow the Department of Homeland Security to remedy a noncompliant notice to appear without ordering the termination of removal proceedings."

Fifth Circuit Court of Appeals

Castillo-Gutierrez v. Garland, 43 F.4th 477 (5th Cir. 2022) - Aug. 5, 2022

Facts & Background
  • Castillo-Gutierrez is a citizen of Mexico. There are two issues on appeal: (1) whether he was properly served a notice to appear (NTA); and (2) whether there was clear error in finding that his removal would not cause exceptional and extremely unusual hardship to his children relating to his cancellation of removal (COR) case.
  • His NTA did not state a specific date or time for his hearing, but it said he was given oral notice of the information, and Castillo-Gutierrez appeared for his hearing.
Notable Holdings & Rationale 
  • The Fifth Circuit rejected Castillo-Gutierrez's claim regarding the NTA based on Fifth Circuit precedent: Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019) and Maniar v. Garland, 998 F.3d 235 (5th Cir. 2021).
  • Regarding the second issue, the Fifth Circuit determined that the recent Supreme Court case Patel v. Garland, 142 S. Ct. 1614 (2022) from May abrogated the Fifth Circuit's prior decision on this issue, Trejo v. Garland, 3 F.4th 760 (5th Cir. 2021). The Fifth Circuit said, "Importantly here, the Patel majority pointed out that a determination that a citizen would face exceptional and extremely unusual hardship due to an alien's removal is a discretionary and authoritative decision which even the Government agreed would be barred by § 1252(a)(2)(B)(i), notwithstanding § 1252(a)(2)(D). Id. Accordingly, Patel makes clear that the BIA's determination that a citizen would face exceptional and extremely unusual hardship is an authoritative decision which falls within the scope of § 1252(a)(2)(B)(i) and is beyond our review."
  • The Fifth Circuit dismissed portions of the petition for review that were not exhausted and otherwise denied the petition for review.

Campos-Chaves v. Garland, 43 F.4th 447 (5th Cir. 2022) - Aug. 3, 2022

Facts & Background
  • Campos-Chaves is a citizen of El Salvador. He filed a petition for review after the Board of Immigration Appeals (BIA) dismissed his appeal regarding a denied motion to reopen. An immigration court issued an in absentia order in 2005.
  • Campos-Chaves argued that his NTA was defective because it did not include the date and time of his removal proceedings, and he sought a remand in light of Rodriguez v. Garland, 15 F. 4th 351 (5th Cir. 2021).
Notable Holdings & Rationale
  • The Fifth Circuit distinguished this case from Rodriguez, because in that case the individual received an undated NTA and then did not receive a notice of hearing (NOH) because he moved. The facts are different in this case because Campos-Chaves received the NTA and does not dispute that he received the NOH.
  • In its holding, the Fifth Circuit states, "If [a noncitizen] forfeits his right to a Rodriguez remand by not giving the Government a good address, then a fortiori the [noncitizen] forfeits his right to a Rodriguez remand when he in fact receives the NOH (or does not dispute receiving it)." Thus, the Fifth Circuit denied his petition for review and all pending motions.

State of Texas v. Biden, 43 F.4th 446 (5th Cir. 2022) - Aug. 3, 2022

Facts & Background 
  • This case was remanded from the Supreme Court (Biden v. Texas, 142 S. Ct. 2528 (2022)). The Fifth Circuit's previous decision can be found at 20 F. 4th 928 (5th Cir. 2021) The case originated in the United States District Court for the Northern District of Texas after the states of Texas and Missouri challenged the Biden Administration's termination of the Migrant Protection Protocols (MPP) in 2021.
Notable Holdings & Rationale 
  • In this August 3, 2022 opinion, the Court remanded this case for further proceedings consistent with the Supreme Court's decision.

Supreme Court

Biden v. Texas - Aug. 1, 2022 

The Supreme Court certified the decision issued in this case. The original decision was issued on June 30, 2022.