February Litigation Updates

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

Board of Immigration Appeals (BIA)

Matter of Duarte-Gonzalez, 28 I&N Dec. 688 (BIA 2023) - Feb. 14, 2023 

  • "Noncitizens who are inadmissible for a specified period of time pursuant to section 212(a)(9)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9)(B)(i), due to their previous unlawful presence and departure are not required to reside outside the United States during this period in order to subsequently overcome this ground of inadmissibility."

Matter of J-L-L-, 28 I&N Dec. 684 (BIA 2023) - Feb. 10, 2023

  • "Pereira v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), are inapplicable to proceedings initiated by a Notice to Applicant for Admission Detained for Hearing Before Immigration Judge (“Form I-122”) and other charging documents issued prior to the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546. Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021), followed."

Fifth Circuit Court of Appeals

Zamaro-Silvero v. Garland, 60 F.4th 914 (5th Cir. 2023) - Feb. 23, 2023

Facts & Background
  •  Zamaro-Silvero, a citizen of Mexico, petitioned the Fifth Circuit for review of the denial by the Board of Immigration Appeals (BIA) of cancellation of removal and voluntary departure. In its denial, the BIA held that the petitioner had been convicted of a crime involving moral turpitude (CIMT) and thus found her ineligible for relief.  
  • In 2017, Petitioner accidentally hit a pedestrian with her car while she was driving, and Petitioner fled the scene of the accident. In 2018, Petitioner pleaded guilty to a third-degree felony and was sentenced to five years’ deferred adjudication. While Petitioner was on deferred adjudication, DHS arrested Petitioner and charged her with being present in the United States without admission or parole. In 2020, Petitioner filed for cancellation of removal with the immigration court and additionally requested voluntary departure. The immigration judge (IJ) denied Petitioner’s application for cancellation of removal, finding that Petitioner’s conviction was a CIMT that thus rendered Petitioner ineligible for cancellation of removal. Petitioner appealed to the BIA, which affirmed the IJ’s decision.
Notable Holdings & Rationale 
  • The BIA did not perform the proper analysis in determining that Petitioner’s conviction was a CIMT. Therefore, the Fifth Circuit granted review, vacated the denial of the BIA, and remanded to the BIA to determine whether Petitioner’s conviction was a CIMT. The question available to the BIA on remand—upon instruction from the Fifth Circuit—will be whether Petitioner’s failure to share information under Section 550.021(a)(4) of the Texas Transportation Code is a CIMT.

Ayala Chapa v. Garland, 60 F.4th 901 (5th Cir. 2023) - Feb. 20, 2023

Facts & Background
  • Ayala Chapa, a citizen of Mexico, petitioned the Fifth Circuit for review of the BIA's dismissal of his appeal of the IJ's denial of his applications for cancellation of removal, withholding of removal, and relief under the Convention Against Torture (CAT). 
  • From 2005 to 2020, Petitioner was arrested and convicted for multiple crimes: 
        • in 2005, for possession of marijuana (when he was charged as a juvenile and granted deferred probation);
        • in 2006, for possession of marijuana and for unlawfully carrying a weapon (with these charges eventually dismissed); 
        • in 2011, guilty plea for delivering cocaine in two separate instances; 
        • in 2017, conviction of marijuana possession; and 
        • in 2020, conviction of possession of a controlled substance. 
  • In February 2020, the Department of Homeland Security (DHS) charged Petitioner with removability, and Petitioner admitted the factual allegations and conceded to removability. 
  • Petitioner applied for cancellation of removal, withholding of removal, and protection under the CAT. The IJ denied Petitioner’s applications for relief, and Petitioner appealed to the BIA. The BIA dismissed the appeal, and Petitioner petitioned the Fifth Circuit for review—only preserving the cancellation of removal claim before the Fifth Circuit. Petitioner also filed a motion for reconsideration with the BIA, but the BIA denied the motion.
Notable Holdings & Rationale
  • Petition is dismissed. The Fifth Circuit lacks jurisdiction to review the petitions brought forth by Petitioner to review the decisions by the IJ and the BIA.  
  • In its opinion, the Fifth Circuit stated that Congress did not give the Fifth Circuit jurisdiction to review the BIA’s “purely discretionary decision to deny cancellation” of removal. The Fifth Circuit further discussed that “discretionary decisions to deny cancellation of removal,” authorized by 8 U.S.C. 1229(b), “are standardless and hence unreviewable.” 
  • In its opinion, the Fifth Circuit also described that Petitioner additionally argued that, even if the BIA's decision was discretionary and thus unreviewable, the Fifth Circuit should still grant the petition for a procedural reason, specifically that "the BIA acted ultra vires by allowing a temporary board member to sign the order dismissing Ayala Chapa's appeal after the board member's six month term had expired." Regarding this, the Fifth Circuit stated that their precedent requires dismissal for lack of jurisdiction. Petitioner never presented the ultra vires claim to the BIA, nor did he raise it in his motion to reconsider—even though he could have sought a new decision by a board member serving an unexpired term on reconsideration. 
  • The Fifth Circuit described that Petitioner raised one final challenge to the BIA's denial of his motion to reconsider, and while the motion to reconsider was pending, he filed a supplemental brief before the BIA arguing that his removal proceedings should be terminated per Niz-Chavez. The BIA denied this claim, making three holdings. In the brief before the Fifth Circuit, Petitioner contested only the first of the three holdings, where the BIA held that Petitioner forfeited the argument by failing to raise a timely objection. Petitioner did not contest or raise the other two holdings in his brief. To this point, the Fifth Circuit held that Petitioner forfeited two of the three arguments needed to prevail on a Niz-Chavez claim.

Mohndamenang v. Garland, 59 F. 4th 211 (5th Cir. 2023) - Feb. 6, 2023

Facts & Background 
  • Mohndamenang, a citizen of Cameroon, petitioned the Fifth Circuit for review of the BIA's decision affirming the denial by the IJ of petitioner's applications for asylum, withholding of removal, and protection under the CAT. Petitioner requested a stay of removal pending the petition for review. The Fifth Circuit denied the petition and the stay of removal.  
  • Petitioner applied for admission to the United States in 2019 and was charged with removability. He appeared to his removal proceedings and admitted that he was removable as charged but declared his intention to file for relief based on his political opinion. At his hearing before the IJ, Petitioner said that he did not have any corroborative materials but did testify that he feared return to Cameroon because the Cameroonian government was killing Cameroonian Anglophones such as himself. Petitioner testified before the IJ that he had been detained by the Cameroonian government and tortured and that he later was involved in a peaceful protest when the Cameroonian military appeared and killed some of the protesters. 
  • The IJ denied Petitioner's application, finding that the testimony was too vague to be credible and that Petitioner had not corroborated his claims. The IJ stated that the claims could have been corroborated through reasonably available documents, such as a letter from a relative or friend.  
  • Petitioner appealed to the BIA, arguing that the IJ had erred in finding Petitioner not credible. Petitioner also argued that the IJ should have developed the record before making a credibility determination. With this appeal, Petitioner did submit a country report, affidavits from his wife and other individuals, and newspaper articles speaking to the crisis in Cameroon. Petitioner asked the BIA to remand to the IJ for factual development, and the BIA agreed and remanded.  
  • Upon remand, Petitioner appeared pro se before a new IJ with his new evidence and testified again, but the new IJ denied his applications for relief—finding that Petitioner was credible but that he did not offer sufficient corroborating evidence to support his testimony to establish his claim for asylum. The IJ did not find the corroboration to be sufficient as to corroborating the incidents, and the IJ found that Petitioner did not provide evidence of his injuries, aside from his own testimony. The IJ further held that even if Petitioner would have provided sufficient corroboration that the court would still deny asylum because Petitioner still failed to show past persecution or a well-founded fear of persecution on account of a protected ground. The IJ denied the withholding of removal and CAT claims as well.  
  • Petitioner appealed to the BIA, which affirmed the IJ's denial of all claims, affirming the denial of asylum and withholding of removal claims particularly based on Petitioner's lack of corroboration. The BIA also affirmed the IJ's denial of the CAT claim for the same reasons as the IJ.  
  • Petitioner raised three issues before the Fifth Circuit on appeal: whether the BIA erred in requiring Petitioner to provide additional evidence without following Matter of L-A-C-; whether the BIA ignored substantial record evidence; and whether the BIA erred in affirming the denial of Petitioner's CAT claims.
Notable Holdings & Rationale 
  • The petition for review is denied, and the request for a stay of removal is denied as moot.  
  • Regarding the first issue raised before the Fifth Circuit, the Fifth Circuit found that the procedures in Matter of L-A-C- do not apply, as the IJ here did not require "specific corroborating evidence;" rather, the IJ "engaged in a comprehensive analysis of why [Petitioner's] evidence was not corroborated by the evidence provided" and determined that evidence would have been reasonably available to Petitioner.  
  • Regarding the issue of substantial record evidence, the Fifth Circuit denied the petition, finding that, under their deferential standard of review, they cannot grant review without a finding that "any reasonable adjudicator would be compelled to conclude the contrary" (citing 8 USC § 1252(b)(4)(B)) or that the evidence presented is "so compelling that no reasonable factfinder" could find Petitioner ineligible for relief or protection from removal. The Fifth Circuit stated that without more evidence—aside from Petitioner's testimony—"the fact of injury cannot show that it was sustained in the alleged manner."  
  • Regarding the dismissal of the CAT claim, the Fifth Circuit upheld the IJ's dismissal of the CAT claim for the same reason as affirming the dismissal of withholding of removal and asylum: that no grounds exist to reverse the IJ's holding that Petitioner had not provided sufficient corroborating evidence to support his testimony.

Supreme Court

Arizona v. Mayorkas, Case No.22-5325

Facts & Background 
  • Please refer to facts and background and other information from the "December Litigation Updates" blog post for this case 
  • On February 16, 2023, the Supreme Court removed the case from the February 2023 argument calendar.