May Litigation Updates

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

Board of Immigration Appeals (BIA)

Morales-Morales, 28 I&N Dec. 714 (BIA 2023) - May 5, 2023 

  • “(1) The Board of Immigration Appeals has authority to accept what are otherwise untimely appeals, and consider them timely, in certain situations because 8 C.F.R. § 1003.38(b) (2022) is a claim-processing rule and not a jurisdictional provision. Matter of Liadov, 23 I&N Dec. 990 (BIA 2006), overruled.”
  • “(2) The Board will accept a late-filed appeal where a party can establish that equitable tolling applies, which requires the party to show both diligence in the filing of the notice of appeal and that an extraordinary circumstance prevented timely filing.”

Poutgatchev, 28 I&N dec. 719 (BIA 2023) - May 22, 2023 

  • “(1) A conviction for burglary of a building under section 140.25(1)(d) of the New York Penal Law is not categorically an aggravated felony burglary offense under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2018), because the statute is overbroad and indivisible with respect to the definition of ‘building’ under New York law.”
  • “(2) A conviction for displaying what appears to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm while committing burglary under section 140.25(1)(d) of the New York Penal Law necessarily involves the use, attempted use, or threatened use of physical force against the person or property of another and therefore constitutes an aggravated felony crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F).”

Fifth Circuit Court of Appeals

Zamaro-Silverio v. Garland, 67 F.4th 264 (5th Cir. 2023) - May 4, 2023

Facts & Background
  • Please refer to facts and background from the "February Litigation Updates" blog post for this case.”
  • In February, the Fifth Circuit ruled on this case. In that ruling, the Fifth Circuit granted Petitioner's petition for review, vacated the denial of the BIA, and remanded the case back to the BIA to determine whether Petitioner's conviction was a crime involving moral turpitude (CIMT).
  • Please note that, in the February decision, Petitioner's name is spelled incorrectly in the party names of the case citation and in some court records. Petitioner did notify the Fifth Circuit that her name was spelled incorrectly and with an 'i': Zamaro-Silverio. Petitioner's correct name is reflected in the citation for the Fifth Circuit's May decision.
Upon Motion to Amend or Clarify 
  • After the Fifth Circuit made its decision in February, the respondent filed a motion to amend or clarify. The Fifth Circuit granted the respondent's motion and withdrew the prior opinion, 60 F.4th 914 (5th Cir. Feb. 23, 2023). The Fifth Circuit issued a new opinion to substitute the withdrawn opinion.
  • In the substituted opinion, the holding remains the same as the withdrawn February opinion: the Fifth Circuit granted the petition for review, vacating and remanding the case to the BIA. Upon remand, the BIA is instructed to determine whether Petitioner's failure to share information under § 550.021(a)(4) of the Texas Transportation Code is a CIMT.
  • The difference between the withdrawn opinion and the substituted opinion lies in Section III of the Fifth Circuit's opinion, specifically pertaining to the analysis of whether a defendant who had violated a prior version of the Texas Statute had committed a CIMT. The language in the Fifth Circuit's discussion is clarified in the substituted opinion. The difference in the two opinions is demonstrated here:
      • Withdrawn opinion: "The court first determined that the statute was divisible: It could be violated by a showing of either “failure to share information” or “failure to ... render aid.” Id. at 288–89 (citing Sheldon v. State, 100 S.W.3d 497, 504 (Tex. App.—Austin 2003, pet. ref'd))." Zamaro-Silvero v. Garland, 60 F.4th 914, 917 (5th Cir. 2023)
      • Superseding opinion: "The court first determined that the statute could be violated by a showing of either “failure to share information” or “failure to ... render aid.” Id. at 288–89 (citing Sheldon v. State, 100 S.W.3d 497, 504 (Tex. App.—Austin 2003, pet. ref'd))." Zamaro-Silverio v. Garland, 67 F.4th 264, 268 (5th Cir. 2023).

Perez v. Garland, 67 F.4th 254 (5th Cir. 2023) - May 2, 2023

Facts & Background
  • Perez, citizen of Mexico, entered the United States and was charged with removability in 2011 for being in the United States without having been admitted or paroled by an immigration officer. Perez conceded to removability.
  • Perez filed for cancellation of removal based on the hardship that his removal would cause his family: his wife and three minor daughters, who are all United States citizens. To support the hardship argument, Perez submitted supporting documentation: documents of his own health and of one of his daughter's, who suffers from asthma.
  • At the hearing before the immigration judge (IJ), Perez and his wife testified. The IJ found both Perez and his wife to be credible and accepted the description of the facts surrounding the hardship. However, the IJ then denied Perez's application for cancellation of removal based on hardship caused to the family, finding that the required standard of hardship is high and that the hardship experienced by Perez's family does not meet the standard.
  • Perez appealed to the BIA, arguing that the IJ applied the incorrect legal standard in evaluating whether the facts presented amounted to undue hardship. Perez also presented new evidence, including that his wife was pregnant with a fourth child and that his second child was undergoing treatment for a mental disorder and was placed in special education classes at school.
  • The BIA adopted and affirmed the IJ's decision and dismissed Perez's appeal. Regarding the new evidence, the BIA found that remand to the IJ was not warranted, as the new evidence would not change the result in the case.
  • Perez petitioned the Fifth Circuit for review, arguing that both the IJ and the BIA applied the incorrect legal standard to determine Perez's eligibility for cancellation of removal under the hardship statute, and Perez also characterized this failure as a violation of his due process rights. Perez also argued that the BIA erred by failing to remand to the IJ for consideration of new evidence and a potential grant of voluntary departure.
Notable Holdings & Rationale 
  • Finding that the Fifth Circuit lacks jurisdiction to review the BIA's hardship determination, the Fifth Circuit dismissed Perez's petition for review.
  • The Supreme Court case, Patel v. Garland, 142 S. Ct. 1614, 1622 (2022), dealt with a scheme of limited judicial review (instituted by Congress), particularly regarding whether courts have jurisdiction to review any judgment pertaining to grants of relief under 8 U.S.C. § 1229b(b). In Patel, the Court found: “Here, ‘any’ means that the provision applies to judgments ‘of whatever kind’ under [§ 1229b(b)(1)], not just discretionary judgments or the last-in-time judgment.” Patel v. Garland, 142 S. Ct. 1614, 1622 (2022) (quoting United States v. Gonzales, 520 U.S. 1, 5 (1997).
  • While different circuits have certain interpretations of Patel, the Fifth Circuit understood the case to categorically foreclose the review of hardship determinations. The Fifth Circuit explained further that they lack jurisdiction to review the BIA's decision not to remand to the IJ to consider Perez's new evidence.
  • The Fifth Circuit explained though that even if they did read Patel as other circuits have and if there was not a jurisdictional issue with Perez's petition that Perez's arguments would nonetheless fail on the merits.
  • Regarding Perez's argument that the BIA should have remanded the case to the IJ for a possible grant of voluntary departure, Perez did not previously present this argument to the BIA and satisfy the exhaustion requirement of 8 U.S.C. § 1252(d).

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. 
Notable Holdings & Rationale 
  • Title 8 U.S.C. 1252(d)(1) — which requires noncitizens to “exhaus® all administrative remedies ... as of right” before challenging a Board of Immigration Appeals final order of removal in federal court — is not a jurisdictional provision and does not require noncitizens to request discretionary forms of review.
  • Refer to the National Immigration Litigation Alliance (NILA) practice advisory titled “Exhaustion of Administrative Remedies in Petitions for Review” for more information on this case.