January Litigation Updates

Read case summaries of select BIA and Supreme Court cases issued this last month.

Board of Immigration Appeals (BIA)

Matter of Chen, 28 I&N Dec. 676 (BIA 2023) - Jan. 11, 2023  

  • "(1) The “stop-time” rule under section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. 1229b(d)(1), is not triggered by the entry of a final removal order, but rather only by service of a statutorily compliant notice to appear or the commission of specified criminal offenses, in accordance with the plain language statutory analysis provided in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). 

  • (2) Breaks in physical presence under section 240A(d)(2) of the Immigration and Nationality Act, 8 U.S.C. 1229b(d)(2), continue to be interpreted as distinct from termination of physical presence under the stop-time rule.  Matter of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000), followed. 

  • (3) A respondent claiming a fundamental change in law as the basis for seeking sua sponte reopening must also establish prima facie eligibility for the relief sought.  Matter of GD-, 22 I&N Dec. 1132 (BIA 1999), followed."

Supreme Court

Santos-Zacaria v. Garland, Case No. 21-1436 

Facts & Background 
  • Please refer to facts and background from the "October Litigation Updates" blog post for this case. 
  • Oral arguments were held on January 17, 2023. Attorney Paul W. Hughes argued for the petitioner, Leon Santos-Zacaria, while Assistant to the Solicitor General Yaira Dubin argued for the Biden administration. At issue before the Supreme Court is whether the petitioner is entitled to appeal her case in federal court and if she exhausted all of the appeal options available to her below the federal court level. Dubin argued that federal courts should not hear this case because the petitioner failed to exhaust all appeal options available to her.  
  • The Supreme Court expects to make a ruling on this case sometime in spring 2023.