April Litigation Updates

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

Board of Immigration Appeals (BIA)

Cancinos-Mancio, 28 I&N Dec. 708 (BIA 2023) - Apr. 28, 2023 

  • “Under the modified categorical approach, an Immigration Judge may consider the transcript of a plea colloquy in determining the factual basis of a plea.”

Fifth Circuit Court of Appeals

Reese v. Garland, No. 22-60111, 2023 WL 3050063 (5th Cir. Apr. 24, 2023)

Facts & Background
  • Leaphiny Reese and Thou Samphear, citizens of Cambodia, were convicted of visa fraud (and received convictions of several crimes arising from fraudulent marriages), and the U.S. government charged them with removability based on the visa fraud conviction.
  • Reese and Samphear came to the United States on visitor visas, entered into fraudulent marriages with U.S. citizens, and resided together as common law spouses in the United States.
  • After receiving the convictions, Reese and Samphear received notices to appear and conceded to their removability. Reese and Samphear then filed applications for hardship waivers to overcome removability for termination of their conditional permanent residence. They also filed applications to waive removability for their visa fraud convictions.
  • The immigration judge (IJ) granted the government's motion to pretermit Reese and Samphear's applications for hardship waivers and to waive removability for their visa fraud convictions. The IJ addressed the fraud waiver and reasoned that the ineligibility for that waiver removed the need to consider the hardship waiver, as the petitioners would remain deportable for fraud regardless. The fraud waiver requires that the applicant be admissible to the United States, and because the petitioners were convicted of marriage fraud (a crime involving moral turpitude), the petitioners would not be otherwise admissible to the United States. Additionally, according to the IJ, even if Reese and Samphear qualified for the fraud waiver, it could not waive the petitioners' charge resting on a criminal conviction.
  • The Board of Immigration Appeals (BIA) found that an application under § 1227(a)(1)(H) (such as the petitioners' applications to waive removability for the visa fraud convictions) cannot waive the petitioners' removability under § 1227(a)(3)(B)(iii), as the subparagraph only waives grounds for deportability that are specifically listed in § 1227(a)(1). The BIA did not find a good purpose to adjudicate Reese and Samphear's hardship waivers in light of their deportability based on fraud convictions, and the BIA ultimately dismissed their appeal.
  • Reese and Samphear petitioned the Fifth Circuit for review, raising five arguments on appeal.
      • First, they argued that an application under § 1227(a)(1)(H) can indeed waive removability under § 1227(a)(3)(B)(iii).
      • Second, they argued that they are eligible for the hardship waivers.
      • Third, they argued that the IJ erred in determining that the petitioners would not be eligible for a fraud waiver under § 1227(a)(1)(H).
      • Fourth, they argued that the IJ erred in finding that the petitioners could not "stack" the waivers.
      • Lastly, the petitioners argued that they experienced due process violations.
Notable Holdings & Rationale 
  • The Fifth Circuit denied Reese and Samphear's petition for review in part and dismissed it in part for lack of jurisdiction.
  • The Fifth Circuit held that the visa fraud waiver did not reach the petitioners' grounds for removal, and the Fifth Circuit further held that they lacked jurisdiction over claims that the BIA did not reach. The Fifth Circuit also determined that Reese and Samphear failed to show a violation of their due process rights.

Elldakli v. Garland, 64 F.4th 666 (5th Cir. 2023) - Apr. 4, 2023

Facts & Background
  • Elldakli, his wife, and his three children are citizens of Libya who have resided lawfully in the United States for over ten years. All family members have been permanent residents for three and a half years.
  • In 2017, Elldakli filed an I-140 petition, seeking waiver of the labor-certification requirement for his visa based on the fact that he is professional with an advanced degree whose work is in the interest of the United States. While the I-140 petition was pending, Elldakli and his family filed I-485 applications for adjustment of status to lawful permanent residents.
  • Under Section 1255, the Attorney General has discretion to adjust the status of individuals to lawful permanent resident status if they have met statutorily-specified conditions, and one of those conditions is that the individual is a beneficiary of an approved immigrant visa petition, such as a pending I-140 petition.
  • However, USCIS granted the family's I-485 petitions prematurely, before USCIS had determined to grant or deny Elldakli his I-140 petition. Six months after granting the I-485 petitions, USCIS denied the I-140 petition, and Elldakli appealed the denial with USCIS's Administrative Appeals Office (AAO). While the appeal was pending, USCIS issued a Notice of Intent to Rescind the family's green cards, stating that the grant of the I-485s was in error since the family were not yet beneficiaries of an approved immigrant-visa petition. The AAO affirmed USCIS's denial of the I-140 and dismissed Elldakli's appeal.
  • Elldakli's family filed the instant complaint and asked the district court to issue a temporary restraining order to keep USCIS from taking the family's green cards away. The Elldakli family, as plaintiffs, argued that it was arbitrary and capricious for USCIS to deny Elldakli's I-140 petition and that it was also arbitrary and capricious for USCIS to initially grant the I-485 adjustment applications when the plaintiffs had not yet met the eligibility requirements. The family made these arguments and asserted subject matter jurisdiction under the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq., the Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202, and 28 U.S.C. § 1331.
  • The district court dismissed the plaintiffs' claims for lack of subject matter jurisdiction, finding that it did not have subject matter jurisdiction to review USCIS's denial of Elldakli's I-140 because the plaintiffs had not yet exhausted their administrative remedies. The district court then concluded that 8 U.S.C. § 1252(a)(2)(B)(i) precludes federal jurisdiction over discretionary decisions granting relief under 8 U.S.C. § 1255.
  • The issue in this case, before the Fifth Circuit, is whether the district court erred in dismissing the claim to review USCIS's decision to deny Elldakli's I-140 petition for want of subject matter jurisdiction.
Notable Holdings & Rationale 
  • The Fifth Circuit affirmed the district court's order of dismissal for want of prosecution, holding: "status-adjustment decisions made by USCIS outside the context of removal proceedings are not final agency actions reviewable under the Administrative Procedure Act (APA), nor are they final removal actions reviewable per the Immigration and Nationality Act (INA)."

Tobar v. Garland, 65 F.4th 195 (5th Cir. 2023) - Apr. 7, 2023

Facts & Background
  • Tobar is a citizen of El Salvador, who entered the United States, was apprehended by immigration officials, and ordered removed in absentia in 1997.  She entered the United States under her birth name, Guadalupe Tobar.
  • Tobar remained in the United States and applied for Temporary Protected Status (TPS), but she applied for TPS under a different name.
  • Tobar was granted TPS in 2003 under the different name and continued to renew her TPS using the different name.
  • After applying for TPS, Tobar departed the United States once and was out of the country for 111 days, returning to El Salvador to be with her sick father before he passed away. Tobar considered asking immigration officials to leave the United States, but she did not because her TPS was not under her birth name.
  • When Tobar returned, she was apprehended by Border Patrol Agents, and the Department of Homeland Security (DHS) brought removal proceedings against Tobar. At the hearing before the IJ, Tobar conceded to removability as charged but sought relief from removal by applying for TPS, this time using her birth name.
  • At the removal hearing, the IJ determined that the trip to El Salvador made Tobar ineligible for TPS because the 111-day absence disrupted the requirement of continuous physical presence in the United States for TPS. Tobar, in return, argued that her absence did not disrupt her presence. The IJ disagreed and concluded that the absence was not brief, casual, and innocent, because it was not of "short duration," as required by 8 C.F.R. § 1244.1. 
  • Tobar appealed to the BIA, who affirmed the IJ's decision. In affirming the IJ's decision, the BIA concluded that Tobar was not statutorily eligible for TPS because her absence did not meet the definition of "brief, casual, and innocent," specifically holding that Tobar "did not meet her burden of establishing that a departure of 111 days is a 'short duration' that was reasonably calculated to accomplish the purpose of her absence from the United States."
  • The IJ made findings of fact that supported the BIA's holding. The BIA, resting on such findings, found that the evidence did "not establish that it was necessary for her [Tobar] to remain for that length of time."
  • Tobar appealed the BIA's decision to the Fifth Circuit, primarily contending that the BIA erred in concluding that her absence did not meet the definition of a “brief, casual, and innocent absence” under 8 C.F.R. § 1244.1. Tobar argued that the BIA misinterpreted the regulation by applying a rule that absences of more than three months are not absences "of short duration and reasonably calculated to accomplish" their purposes.
Notable Holdings & Rationale 
  • The Fifth Circuit denied Tobar's petition for review of the BIA's decision, and the Fifth Circuit did not find anything to suggest that the BIA's application of the regulation's terms to the circumstances surrounding Tobar's absence was plainly erroneous or inconsistent with the regulation itself. The Fifth Circuit elaborated that the BIA came to its decision regarding Tobar's absence in light of the factual record and the totality of the record. The Fifth Circuit did not find that the BIA erred in its conclusion that Tobar failed to satisfy the continuous physical presence requirement for TPS eligibility.
  • In its decision, the Fifth Circuit reiterated the facts that supported the BIA's determination that Tobar's absence was not of "short duration and reasonably calculated to accomplish" Tobar's purpose of visiting her sick father. The Fifth Circuit mentioned that, the record shows, Tobar quit her job before going to El Salvador, was gone for 111 days, waited 13 years after her father's cancer diagnosis to visit him, and that his death was not imminent—as Tobar’s father did not die until two years after Tobar returned to the United States from El Salvador.