March Litigation Updates

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

Board of Immigration Appeals (BIA)

Matter of Garcia, 28 I&N Dec. 693 (BIA 2023) - Mar. 24, 2023 

Holdings
  • "For choice of law purposes, the controlling circuit law in Immigration Court proceedings is the law governing the geographic location of the Immigration Court where venue lies, namely where jurisdiction vests and proceedings commence upon the filing of a charging document, and will only change if an Immigration Judge subsequently grants a change of venue to another Immigration Court. Matter of R-C-R-, 28 I&N Dec. 74 (BIA 2020), clarified."

Fifth Circuit Court of Appeals

Rodriguez Gonzalez v. Garland, 61 F. 4th 467 (5th Cir. 2023) - Mar. 3, 2023

Facts & Background
  • Petitioner, Roberto Rodriguez Gonzalez, a citizen of Mexico, sought review of a final order of removal by the Board of Immigration Appeals (BIA), alleging that the BIA and the immigration judge (IJ) committed legal error in concluding that Rodriguez Gonzalez was ineligible for asylum due to a conviction of aggravated robbery in Texas.  
  • Rodriguez Gonzalez received lawful permanent resident status in the United States in 2003, but in 2014, he pleaded guilty to aggravated robbery and was sentenced to eight years in prison. Later, he received a Notice to Appear from the Department of Homeland Security (DHS) and was charged as removable due to the conviction.  
  • The IJ found Rodriguez Gonzalez removable and ineligible for asylum due to the conviction, and the BIA affirmed the IJ's decision.  
  • Rodriguez Gonzales moved to reopen his removal proceedings based on the Supreme Court's decision in Sessions v. Dimaya, 138 S. Ct 1204 (2018), where the Supreme Court held that the "crime of violence" designation in the removal statute was unconstitutionally vague.  
  • After the proceedings were reopened, an IJ again found Rodriguez Gonzalez ineligible for asylum due to the conviction and, separately, ineligible for deferral of removal under the Convention Against Torture (CAT). The BIA affirmed this holding, and Rodriguez Gonzalez filed a petition for review with the Fifth Circuit.
Notable Holdings & Rationale 
  • The Fifth Circuit disagreed with Rodriguez Gonzalez's assertion that the BIA and IJ committed legal error in finding that he was ineligible for asylum due to the aggravated robbery conviction and denied Rodriguez Gonzalez's petition for review.
  • Under 8 U.S.C. § 1227(a)(2)(A)(iii), an individual convicted of an aggravated felony at any time after admission to the United States is removable. Under 8 U.S.C. §1101(a)(43), felony theft offenses qualify as aggravated felonies. While the Fifth Circuit lacks jurisdiction to review the final order of removability against an individual with an aggravated felony conviction, the issue of whether the conviction qualifies as an aggravated felony is a question of law.
  • The BIA concluded that Petitioner's conviction was an aggravated felony theft offense under section 101(a)(43(G), though Petitioner contended that this was incorrect as a matter of law. To this point, the Fifth Circuit stated that "neither the BIA nor this court needs to determine whether a petitioner convicted under Texas Penal Code § 29.03 was convicted for attempted theft or actual theft because, as a categorical matter, it makes no difference."
  • Regarding asylum and CAT, the Fifth Circuit—citing Title 8—stated that an individual is ineligible for asylum or withholding of removal and subject to mandatory denial of withholding of removal under the CAT if they have a prior conviction for a "particularly serious crime," where a particularly serious crime is defined in part as an aggravated felony. The Fifth Circuit further described that in the withholding of removal context, the length of the sentence is considered, where a particularly serious crime is "an aggravated felony for which" the individual has received a sentence to "an aggregate term of imprisonment of at least five years."  
  • The Fifth Circuit found Petitioner to be ineligible for asylum because the conviction qualifies as a non-political felony crime of violence, and Petitioner's offense "satisfies the elements or force clause," which "all but mirrors the force clause for a crime of violence."  
  • Regarding relief under the CAT, Petitioner did not meet his burden to demonstrate a likelihood that he would be tortured or that the Mexican government would acquiesce in or willfully ignore torture of Petitioner.