September Litigation Updates

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

Fifth Circuit Court of Appeals

Kumar v. Garland, No. 20-60712, 2022 WL 4364125 (5th Cir. Sept. 21, 2022) - Sept. 21, 2022 

Facts & Background
  • Kumar is a citizen of India. He was determined to have a credible fear of persecution if he returned to India, and his case was referred to an immigration judge (IJ). He applied for asylum, withholding of removal (WOR), and protection under the Convention Against Torture (CAT). 
  • Kumar claimed to fear persecution from the ruling political party in India, BJP, due to his work for another party, INDP, and had been threatened and physically beaten by BJP members multiple times. However, at the time of the merits hearing, he was still waiting to receive evidence in the mail from India, and the IJ denied his motion to continue on that ground. Kumar's only evidence was his own testimony. 
  • The IJ made an adverse credibility determination against Kumar and denied his claims for asylum, WOR, and CAT on the merits. Kumar appealed to the Board of Immigration Appeals (BIA), which denied. Kumar appealed to the Fifth Circuit on both substantive and procedural grounds. Substantively, he argues that the BIA erroneously concluded he did not suffer past persecution, could relocate to another part of India, and was not entitled to CAT relief, and that the BIA erred in concluding the new evidence he presented would not have changed the outcome of his case. 
  • Of Kumar's procedural arguments, some were unexhausted and therefore the Fifth Circuit had no jurisdiction over them, and the remaining arguments are that the BIA denied him due process and failed to give meaningful consideration to his arguments that the IJ mischaracterized his testimony and affidavits. 
Notable Holdings & Rationale 
  • The Fifth Circuit determined that Kumar's evidence does not compel a contrary conclusion to that of the IJ and BIA, that the harm endured did not amount to persecution. It also reasoned that Kumar's claim for WOR was appropriately dismissed, as he did not meet the higher burden of proof. Similarly, the Fifth Circuit agreed with the BIA's decision affirming that Kumar did not endure harm rising to the level of torture for the purpose of CAT. Lastly, the Fifth Circuit determined that the BIA's conclusions were substantively reasonable. 
  • Regarding Kumar's procedural arguments, the Fifth Circuit determined that he was not prejudiced by the discrepancy in the record arising from the similarity of his father's and uncle's names because the BIA assumed on appeal that Kumar was credible. He was also not prejudiced by the IJ's alleged failure to inform him that he could obtain a medical evaluation. 
  • The Fifth Circuit dismissed his petition for review in part for lack of jurisdiction and denied it in part.

Agustin-Matias v. Garland, 48 F.4th 600 (5th Cir. 2022) - Sept. 9, 2022

Facts & Background
  • Agustin-Matias is a citizen of Guatemala. He filed a petition for review of a BIA decision dismissing his appeal of the IJ's denial of his application for cancellation of removal (COR). 
  • Agustin-Matias argued that the BIA erred in concluding he failed to demonstrate that his stepchildren are United States citizens and thus "qualifying relatives" for purposes of his application. He also argued that the BIA's interpretation of 8 USC § 1229b(b)(1)(D) violates the Fifth Amendment.
Notable Holdings & Rationale
  • Agustin-Matias did not assert before the IJ that his stepchildren were U.S. citizens but argued that his wife's testimony established it. The Fifth Circuit disagreed that the evidence compels a conclusion contrary to that of the BIA. 
  • Agustin-Matias's argued that the requirement to establish hardship to a qualifying relative without also considering the hardship that he would suffer, violates equal protection under the Fifth Amendment. Applying rational basis review, the Fifth Circuit determined that § 1229b(b)(1)(D) passes constitutional muster. 
  • The Fifth Circuit denied the petition for review. 

Parada v. Garland, 48 F.4th 374 (5th Cir. 2022) - Sept. 1, 2022 

Facts & Background 
  • Parada and her minor daughter are citizens of El Salvador. They filed a petition for review after the BIA denied their motion to reopen removal proceedings to allow them to apply for cancellation of removal. 
  • The Notices to Appear (NTAs) lacked the time and date of the hearing, but they did subsequently receive multiple notices of hearing. In removal proceedings, Parada applied for asylum for herself and her daughter. The IJ denied their application for asylum and other relief and ordered them removed, and the decision was affirmed by the BIA.
Notable Holdings & Rationale 
  • Parada asserted that under Pereira v. Sessions, their NTAs did not activate the stop-time rule and they had since accrued the necessary 10 years of physical presence to apply for cancellation of removal. 
  • The Fifth Circuit reviewed the BIA's denial under the "highly deferential abuse-of-discretion standard" and determined that the standard was met here because the BIA's decision was based on a legally erroneous interpretation of the statutes governing NTAs and the stop-time rule. The Supreme Court has since reinforced the holding of Pereira in Niz-Chavez. 
  • The Fifth Circuit granted the petition for review and remanded the case to the BIA for further proceedings consistent with this opinion.

Supreme Court

U.S., et al. v. Texas, et al., Case No. 22-40367 

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 
  • On September 12, 2022, the petitioners filed their brief. 
  • Briefs were submitted by nine amici curiae. 
  • Oral argument will be heard during the upcoming Supreme Court term, though a date has not yet been set.