December Litigation Updates

Read case summaries of select BIA, 5th Circuit, and Supreme Court cases issued this last month.

Board of Immigration Appeals (BIA)

Matter of Triana, 28 I&N Dec. 659 (BIA 2022) - Dec. 1, 2022  

  • "When determining whether a respondent is grandfathered for purposes of adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2018), a decision of the United States Citizenship and Immigration Services (“USCIS”) to approve a visa petition filed on or before April 30, 2001, does not foreclose an Immigration Judge from determining in removal proceedings whether that petition was “approvable when filed” within the meaning of 8 C.F.R. § 1245.10(a)(1)(i) (2021)."

Matter of Mariscal-Hernandez, 28 I&N Dec. 666 (BIA 2022) - Dec. 9, 2022   

  • "(1) Where an Immigration Judge finds that a traffic stop was nothing more than a routine law enforcement action, a respondent has not established a prima face case of a Fourth Amendment violation—much less an egregious violation—and is not entitled to a hearing on a suppression motion. Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988), followed. (2) Unsupported assertions and speculation have no evidentiary value and are insufficient to establish a prima facie case that an investigatory stop was an egregious violation of the Fourth Amendment, and thus they do not warrant a suppression hearing."  

Fifth Circuit Court of Appeals

Campos-Chaves v. GarlandNo.  20-60262 (5th Cir. Dec. 1, 2022) - Dec. 1, 2022   

Facts & Background
  • The petitioner in this case is Moris Esmelis Campos-Chaves, a citizen of El Salvador, who petitioned the Fifth Circuit for rehearing en banc. Campos-Chaves petitioned for review of the final order of removal issued by the Board of Immigration Appeals (BIA), where the BIA dismissed Campos-Chaves decision of the immigration judge (IJ) to deny his motion to reopen.  
  • Campos-Chaves entered the United States in January 2005, and the U.S. government filed a Notice to Appear (NTA) in immigration court. Campos-Chaves did not appear, and consequently, he was ordered removed in absentia 
  • After he was ordered removed in absentia, Campos-Chaves filed a motion to reopen – arguing that the IJ lacked authority to conduct the removal proceedings on the basis that the NTA itself was defective. Campos-Chaves submitted an affidavit, in which he stated that he did receive the NTA but that the NTA did not contain the date and time of his removal proceedings.  
  • In petitioning the Fifth Circuit for rehearing en banc, Campos-Chaves argued that the Fifth Circuit should remand the matter to the BIA for reconsideration of his NTA challenge, in light of Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021). 
Notable Holdings & Rationale 
  • The Fifth Circuit denied the petition for rehearing en banc and withdrew their prior opinion, 43 F.4th 447, and issued this opinion in its place.  
  • The Fifth Circuit disagreed with Campos-Chaves arguing for remand in light of Rodriguez, as the Fifth Circuit stated that, in Rodriguez, Rodriguez received an undated NTA but did not receive notice of his hearing because he moved. The Fifth Circuit differentiated the facts of Campos-Chavez's situation with that of Rodriguez, stating that Campos-Chaves received the NTA and that Campos-Chaves did not dispute that he received notice of his hearing. 

Eneugwu v. GarlandNo. 20-61162 (5th Cir. Dec. 1, 2022) - Dec. 1, 2022 

Facts & Background 
  • Two brothers from Nigeria, Bobby Onyeka Eneugwu and Odera Obinna Eneugwu, petitioned the Fifth Circuit to overturn the BIA's refusal to allow their removal proceedings to be reopened. In petitioning the Fifth Circuit, the petitioners argued that their legal counsel's ineffectiveness caused their applications for asylum and other relief to be incomplete and therefore denied. The petitioners also argued that their counsel's failure constituted extraordinary circumstances that justified the reopening of their removal proceedings.  
  • The petitioners were admitted entry to the United States on tourist visas, with the visas allowing the petitioners to stay in the United States until May 19, 1998. The petitioners remained past that aforementioned date, with DHS issuing NTAs to them in March 2009. The petitioners were scheduled for a hearing at the immigration court in December 2009, when they failed to appear and were consequently ordered removed in absentia.
  • At the immigration court:  
    • The petitioners' attorney, Michael Mattson, entered appearance on their behalf on or around September 2012; filed an admission of the allegations in each NTA; and conceded to the charges of removability against the petitioners. Three months later, in December 2012, Mattson motioned to withdraw from the petitioners' case upon finding out that the petitioners were seeking other counsel. However, an IJ only granted Mattson's motion to withdraw in April 2015, more than two years after the motion to withdraw was originally filed.  
    • The petitioners proceeded pro se at their hearings on December 12, 2017 and on March 21, 2018. At the hearing in March 2018, the petitioners filed applications for asylum, withholding of removal (WOR), and relief under the Convention Against Torture (CAT). At that hearing, the IJ provided the petitioners with biometrics instructions, particularly regarding fingerprinting and the importance of fingerprint to the pending applications of relief with the immigration court.  
    • The petitioners' merits hearing was on March 25, 2019, and an attorney, Patrick Chukwu, entered appearance on behalf of the petitioners. At the hearing, the IJ asked the petitioners if they had submitted their biometrics request to the specific address on the biometrics instructions, and the petitioners said that they had not because their attorney did not tell them that they had to take their fingerprints. The IJ then played an actual recording from the March 2018 hearing, when the IJ gave the fingerprints instructions to the petitioners. The IJ then determined that good cause did not exist for the petitioners' failure to provide biometrics; deemed the petitioners' applications to be abandoned; and ordered the petitioners' removal to Nigeria. The petitioners did not appeal this ruling.  
    • In August 2019, through new counsel, the petitioners filed a motion to reopen, based on ineffective assistance of counsel alleging that Chukwu (the attorney from the merits hearing on March 25, 2019) was ineffective in his failure to remind the petitioners of biometrics and failure to file the petitioners' I-589 applications for asylum. The petitioners also claimed that, if not for Chukwu's ineffective assistance, they would have been afforded a merits hearing.  
      • Regarding these motions to reopen, the IJ found them to not have been filed timely and not subject to equitable tolling.  
      • Regarding the I-589s, the IJ found that the petitioners already filed I-589s in March 2018 and that they failed to demonstrate how subsequent applications differed from those that were previously filed.  
      • Regarding Chukwu's failure to remind the petitioners of biometrics and fingerprinting, the IJ found that the petitioners knew, prior to the merits hearing, that they needed to have fingerprints taken and that not having fingerprints taken would lead to the IJ denying the applications for relief.  
      • Regarding Chukwu's effectiveness, the IJ determined that the petitioners failed to demonstrate Chukwu's ineffectiveness or that his actions were prejudicial to their cases. The IJ also found that the petitioners did not establish that extraordinary circumstances took place to prevent timely filing of their motions. The petitioners' due process claims failed, and the IJ found that equitable tolling was not applicable to their untimely motions to reopen.  
    • The IJ did not find a basis to reopen the petitioners' case.  
  • At the BIA:  
    • The petitioners filed an appeal to the BIA, and the BIA dismissed the appeal – with one member of the BIA dissenting and disagreeing with the IJ's findings regarding Chukwu's ineffective assistance of counsel.  
      • In the dissent, the member of the BIA stated that Chukwu's failure to remind the petitioners of needing to have fingerprints taken constituted ineffective assistance of counsel, because the attorney had given the petitioners a list of materials and things needed to do for the merits hearing, with this list not including the fingerprint requirement.  
      • The dissenter also stated that Chukwu's ineffective assistance of counsel did result in prejudice to the petitioners, because the petitioners did not receive a full hearing on the merits of their applications for relief based on the ineffective assistance of counsel.  
    • In the dismissal, the BIA determined that the petitioners did not contest the issue of timeliness for the motion to reopen. The BIA also agreed with the IJ regarding the issue of equitable tolling based on ineffective assistance of counsel, agreeing that the petitioners failed to establish that Chukwu provided ineffective assistance of counsel to the petitioners. The BIA agreed with the IJ also that the petitioners failed to show extraordinary circumstances that would justify reopening the petitioners' removal proceedings sua sponte.  
  • The petitioners timely filed a petition for review to the Fifth Circuit, where they argued that the BIA abused its discretion in affirming the IJ's denial of their motions to reopen and in refusing to reopen the petitioners' removal proceedings sua sponte 
  • The Fifth Circuit denied the petitioners' petition for review in part, and regarding the issue of the error in the BIA refusing to reopen the petitioners' removal proceedings sua sponte, the Fifth Circuit dismissed the petition.
Notable Holdings & Rationale 
  • Regarding equitable tolling and the timeliness of the motion to reopen:  
    • The Fifth Circuit stated that they did not need to decide whether ineffective assistance of counsel would be an extraordinary circumstance justifying equitable tolling, as the petitioners did not argue that the untimeliness of the motion to reopen was based on the ineffective assistance of counsel.  
    • The Fifth Circuit also stated that, while the dissenting member of the BIA found that Chukwu's failure to remind the petitioners about fingerprinting was ineffective assistance, the failure for the petitioners to timely file the motion to reopen was not caused by that failure.  
  • Regarding the BIA's denial of the motion to reopen sua sponte:  
    • The Fifth Circuit stated, citing Mejia v. Whitaker, 913 F.3d 482, 490 (5th Cir. 2019), that they do not have jurisdiction to review the BIA's decision in choosing not to invoke its sua sponte authority to reopen a case, as the Fifth Circuit does not have a legal standard for judging that BIA decision. To this end, the Petitioners argued that the Fifth Circuit's refusal to review denials of the BIA's sua sponte decisions is erroneous, based on reasoning by certain Supreme Court decisions. The Fifth Circuit then concluded that these Supreme Court decisions do not affect the Fifth Circuit's holdings that the Fifth Circuit does not have the jurisdiction to review the BIA's sua sponte decisions to refuse to reopen removal proceedings.

Gebrgzabher v. Garland, No. 21-60223 (5th Cir. Dec. 19, 2022) - Dec. 19, 2022 

Facts & Background 
  • The petitioner in this case is Zena Gebrgzabher, who is a native of Eritrea. The petitioner was forcibly conscripted in the Eritrean National Service at age 18 and worked as a security guard at a security checkpoint in Eritrea for nearly one year. Forces of the Eritrean National Service brought their detainees and political prisoners (those who were considered traitors for trying to leave Eritrea without government permission) through this checkpoint. The petitioner stated that his duties as an armed security guard at this checkpoint included watching the prisoners, watching the other security guards, and inspecting the vehicles. The petitioner also stated that failure to watch the prisoners would result in his own detainment. Years later, the petitioner escaped Eritrea, and in February 2017, he came to the United States, where he applied for asylum and WOR. DHS served the petitioner with a NTA, and at his master calendar hearing in April 2017, the petitioner conceded to his removability and applied for asylum, WOR, and protection under CAT.  
  • The issue of this case centers on the "persecutor bar," where under federal immigration law, an individual cannot obtain refugee status if they participated in persecution of any person based on race, religion, nationality, member in a particular social group (PSG), or political opinion. This case deals with the question of what kinds of actions qualify as acts of persecutory assistance of participation.  
  • After his merits hearing, the IJ ultimately denied the petitioner asylum and WOR, concluding that the petitioner's job of guarding the prisoners at the security checkpoint – inhibiting the detainees' release and escape – qualified in persecution under the persecutor bar. IJ further rejected the petitioner's argument that the petitioner did not have the requisite intent in persecuting the prisoners, and the IJ declined to find a duress exception to the persecutor bar. The IJ did grant CAT relief to the petitioner.  
  • The petitioner appealed to the BIA, arguing that the proceedings should be remanded for the IJ to determine whether the petitioner was entitled to the duress exception to the persecutor bar. The BIA dismissed this appeal, finding that the persecutor bar applied to the petitioners' duties as a security checkpoint guard and that the petitioner failed to prove that the bar did not apply to him. The BIA also denied the petitioner's motion to remand, based on a recent Attorney General (AG) opinion that concluded with a statement that a duress exception is not applicable to the persecutor bar. 
  • The petitioner timely petitioned the Fifth Circuit for review, and the Fifth Circuit denied the petition for review.
Notable Holdings & Rationale 
  • In the denial of the petitioner's petition for review, the Fifth Circuit looked at the denials from the IJ and the BIA and reviewed the conclusions de novo. The Fifth Circuit made note that their decision here does not affect the IJ's grant of protection under the CAT.  
  • Regarding the issue of the IJ's conclusion of the applicability of the persecutor bar to the petitioner's actions, the Fifth Circuit stated that this conclusion was supported by substantial evidence and that none of the petitioner's arguments undermined the conclusions of the IJ and BIA.  
  • The Fifth Circuit further stated that the persecutor bar applies to the primary persecutor, in addition to additional and participating persecutors. Although the petitioner did not engage in physical acts and although other guards were present, the petitioner still guarded the prisoners. The Fifth Circuit elaborated that the petitioner himself admitted that the prisoners would have attempted to escape, except for the petitioner's presence. The Fifth Circuit discussed the petitioner being unarmed in his role at the checkpoint and stated that he still hindered the prisoners from escaping and fleeing by standing guard, regardless of whether he was armed. The Fifth Circuit also discussed that, even though the petitioner was a member of state-sanctioned law enforcement activity, this does not make him immune from the invocation of the persecutor bar.

Platero-Rosales v. GarlandNo. 20-60707 (5th Cir. Dec. 15, 2022) - Dec. 15, 2022 

Facts & Background 
  • The petitioner is Maria Del Carmen Platero-Rosales, a native of El Salvador. She entered the United States in April 2005, and she was detained immediately after entry and given a NTA, showing that she would be subject to removal proceedings. The NTA required the petitioner to appear at a hearing before an IJ in Harlingen, Texas at a date and time (to be set). The petitioner signed the certificate of service for the NTA, but she did not provide a mailing address. The petitioner did not attend the hearing, and the IJ ordered her removed in absentia. Fourteen years later, she moved to reopen her removal proceedings, and the IJ denied this motion to reopen. The BIA affirmed the IJ's decision without issuing a separate opinion.  
  • The petitioner petitioned the Fifth Circuit for review, challenging her in absentia removal. The Fifth Circuit denied her petition for review.
Notable Holdings & Rationale 
  • The petitioner petitioned the Fifth Circuit for review, challenging her in absentia removal on the basis of the NTA not providing notice of the time and date of the hearing. The Fifth Circuit rejected that challenge and went through the statutorily-required items for NTAs, including the legal authority of the proceedings, the acts alleged in violation of the law; the charges and allegedly-violated statutory provisions; and that the individual may retain legal counsel. The Fifth Circuit concluded that these items were included in the petitioner's NTA. The Fifth Circuit further discussed that the petitioner was required to provide the government with her address, noting that the petitioner did not dispute that she did not provide the government with her address. While the petitioner challenged her in absentia removal based on the lack of the date and time of the hearing, the Fifth Circuit stated that the U.S. government may remove an individual in absentia if they do not provide the U.S. government with their address, as required.  
  • The petitioner countered, arguing that the NTA was still insufficient because it was in English and not in Spanish. The Fifth Circuit denied her petition for review, stating that she did not have a legal basis under which to complain that her NTA was in English. In the denial, the Fifth Circuit stated that a legal basis does not exist to ultimately find that the United States was required to provide the petitioner a NTA in Spanish, and the Fifth Circuit further stated that the statute regarding notices does not say anything about requiring notices in other languages aside from English.

Supreme Court

Facts & Background 
  • In November, a federal court struck down Title 42. 
  • In mid-December, federal court rejected several states’ attempt to intervene in the case. 
  • Those states then appealed to the Supreme Court and requested a stay of the November order. 
Notable Holdings & Rationale
  • On 12/27, SCOTUS granted a stay of the November court order and granted cert on this case, setting oral argument for the February 2023 session. 
  • The issue before SCOTUS is only the intervention by the states, not the merits of the November court order.