July Litigation Updates

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

Board of Immigration Appeals (BIA)

Amicus Invitation

The BIA issued an amicus invitation, No. 23-01-08, which is due August 31, 2023. 


"Pursuant to Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022): 

  1. Should an Immigration Judge allow DHS to remedy a non-compliant Notice to Appear? 
  2. To remedy a non-compliant Notice to Appear, is either (1) issuing an I-261, or (2) amending the Notice to Appear, permitted by the regulations, and would either comport with the single document requirement emphasized by the United States Supreme Court in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021)? If not, how can a non-compliant Notice to Appear be remedied?" 

Fifth Circuit Court of Appeals

Argueta-Hernandez v. Garland, No. 22-60307, 2023 WL 4417251 (5th Cir. July 10, 2023)

Facts & Background
  • Samuel De Jesus Argueta-Hernandez ("Petitioner") is a citizen of El Salvador, who entered the United States in 2003 and was ordered removed in 2007. Petitioner returned to the United States in 2010, 2018, and 2019. Petitioner's appeal to the Fifth Circuit pertains to his most return in 2019.  
  • In September 2019, the federal government reinstated Petitioner's removal order from 2007. Petitioner expressed fear of returning back to El Salvador based on fear of gang violence. Petitioner said that he was fleeing the notorious gang, MS-13, who had asked Petitioner to store and transport contraband and pay a quota to the gang. Petitioner claimed that MS-13 targeted him because he was a Christian. When Petitioner told MS-13 he would not perform these acts, MS-13 members threatened to kill Petitioner and his families. Petitioner went to the authorities, and Petitioner claimed they did little to help him.  
  • Petitioner sought protection, seeking withholding of removal and protection under the Convention Against Torture (CAT). The immigration judge (IJ) denied Petitioner's application for relief, and the BIA dismissed Petitioner's appeal of the IJ's decision on April 27, 2022.  
  • On May 26, 2022, Petitioner petitioned the Fifth Circuit to review the BIA's order denying his application for withholding of removal and protection under the CAT. He petitioned the Fifth Circuit 30 days after the BIA denied his application for withholding of removal and CAT relief.  
  • Petitioner's petition presented two issues: 
    • Whether the denials of withholding of removal and CAT are final orders of removal, and if not,  
    • Whether there is an eligible order from which the Fifth Circuit would have jurisdiction.
Notable Holdings & Rationale 
  • The petition for review was dismissed for a lack of jurisdiction.  
  • In their opinion, the Fifth Circuit stated that Congress limited the Fifth Circuit's jurisdiction to final orders, which conclude that the noncitizen is either deportable or ordering deportation. Congress also imposed that the petition for review must be filed within 30 days of that order becoming final. Petitioner's petition for review did not meet these requirements because the BIA's denial was not a final order, and the petition was filed untimely. 
    • Regarding the first issue, the BIA's denials of withholding of removal and CAT relief are not final orders of removal. Those orders do not address the issue of whether a noncitizen is removable, though they address the separate issue of where a noncitizen may be removed.  
    • Regarding the second issue, since the BIA's order denying withholding of removal and relief under CAT is not considered to be an order of removal, Petitioner is required to point to another eligible order for which the Fifth Circuit can have jurisdiction. While Petitioner claimed that the 2019 reinstatement order would be the eligible petition for the Fifth Circuit to have jurisdiction, the Fifth Circuit did not find that they have jurisdiction. Petitioner's petition for review was untimely since it was filed 30 days after the reinstatement order became final.