September 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 Cabrera-Fernandez, 28 I&N Dec. 747 (BIA 2023) - Sept. 11, 2023

  • "(1) Release on conditional parole under section 236(a)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a)(2)(B) (2018), is legally distinct from release on humanitarian parole under section 212(d)(5)(A) of the INA, 8 U.S.C. § 1182(d)(5)(A) (2018). Matter of Castillo-Padilla, 25 I&N Dec. 257, 258–63 (BIA 2010), followed.  
  • (2) Applicants for admission who are released on conditional parole rather than humanitarian parole have not been “inspected and admitted or paroled,” and accordingly are not eligible for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended."

Matter of C-G-T-, 28 I&N Dec. 740 (BIA 2023) - Sept. 8, 2023

  • "(1) Determining whether the government is or was unable or unwilling to protect the respondent from harm is a fact-specific inquiry based on consideration of all evidence.  
  • (2) A respondent’s failure to report harm is not necessarily fatal to a claim of persecution if the respondent can demonstrate that reporting private abuse to government authorities would have been futile or dangerous.  
  • (3) When considering future harm, adjudicators should not expect a respondent to hide his or her sexual orientation if removed to his or her native country."

Fifth Circuit Court of Appeals

Martinez-De Umana v. Garland, No. 22-60340, 2023 WL 5811896 (5th Cir. Sept. 8, 2023)

Facts & Background
  • Petitioner and her two daughters, natives of El Salvador, petitioned the Fifth Circuit for review of the Board of Immigration Appeals (BIA) order, which held that Petitioner and her daughters are ineligible for immigration relief.  
  • Petitioner and her daughter, Katherine, entered the United States in 2014. Petitioner and Katherine were later served with a Notice to Appear (NTA), charging them with removability as individuals who sought admission to the United States without a valid document of entry. Later in 2014, Petitioner and her legal counsel appeared before the immigration judge (IJ), at which time Petitioner admitted to the facts in the NTA and conceded hers and Katherine's removability. Petitioner then sought asylum, withholding of removal (WOR), and relief under the Convention Against Torture (CAT).  
  • In 2017, one of Petitioner's daughters, Imelda, then entered the United States. Imelda was served with an NTA, charging her with removability as an individual present in the United States without having been admitted or paroled. Imelda's removal proceedings were then consolidated with Petitioner and Katherine's removal proceedings.  
  • Petitioner appeared before the IJ in 2018 and presented her asylum and WOR claims based on membership in the following PSGs: (1) employees of the Ministry of Justice, (2) former employees of the Ministry of Justice, (3) immediate family members, and (4) whistleblowers. Petitioner said that she worked at the Ministry of Justice in El Salvador from 2012-2014, first working as a security officer (who received military training) inside a prison and later transitioning to work in the prison's administrative office. Petitioner described her job and duties to the IJ, and she also told the IJ that the prisoners viewed the prison staff as "enemies."  
  • Petitioner told the IJ also that her neighbor, who had ties to the MS-13 gang, saw Petitioner in her Ministry of Justice uniform and told Petitioner that he then knew she worked there. Later, another neighbor (a gang member), talked to Petitioner and asked about her job, which implied to Petitioner that this neighbor knew Petitioner worked at the Ministry of Justice. Petitioner then described further instances of gang member interactions, which included the gang members following Petitioner and monitoring her home. Petitioner told the IJ that she believes that the gang members were harassing her to collect a tax. After the interactions with the gang, Petitioner then took a period of leave from the Ministry of Justice, hoping that the gang would leave her alone. However, Petitioner claims she still experienced interactions with the gang members and that someone told her that the gangs were planning to visit her. In May 2014, gang members killed two of Petitioner's Ministry of Justice coworkers, and Petitioner and her daughter, Katherine, left El Salvador following this attack. Petitioner then told the IJ that after she and Katherine left El Salvador, gang members attacked Petitioner's husband multiple times. Eventually, Petitioner's husband went into hiding and later moved and started a family with a new partner, at which time the gang left him alone. Petitioner had an expert witness provide testimony at the hearing before the IJ, and the expert witness also provided a written declaration.  
  • The IJ denied Petitioner's claims for asylum, WOR, and CAT and ordered the removal of Petitioner and her daughters to El Salvador. The IJ denied Petitioner's claims on multiple bases, including that Petitioner's PSG "employees of the Ministry of Justice" did not have the required nexus to a protected statutory ground because of the "inherent assumption of risk that is tied to a law enforcement job." The IJ also found that the PSG "former employees of the Ministry of Justice" lacked nexus. The IJ also found that there was not a nexus between the harm and fear Petitioner suffered in El Salvador and Petitioner's PSGs of her immediate family members and whistleblowers. The IJ was also not persuaded that Petitioner could not relocate elsewhere in El Salvador.  
  • Petitioner appealed the IJ's denial to the BIA and argued that the IJ erroneously applied Matter of Fuentes, 19 I. & N. Dec. 658 (BIA 1988) as a per se bar to relief without "evaluating Petitioner's specific risk profile," where Petitioner further argued that her situation was distinct from that of Matter of Fuentes because she was an "ordinary government employee" who worked in an administrative office. However, the BIA (which was not persuaded by Petitioner's Matter of Fuentes argument) dismissed Petitioner's appeal on multiple grounds, including that the BIA found that the IJ did not erroneously apply Matter of Fuentes 
  • Petitioner then timely petitioned the Fifth Circuit to review the BIA's decision, bringing forth two arguments: first, that the BIA erred in concluding Petitioner's ineligibility for relief based on Matter of Fuentes and second, that the BIA erred in affirming the IJ's decision that Petitioner failed to demonstrate a well-founded fear of future persecution if Petitioner went back to El Salvador.
Notable Holdings & Rationale 
  • The Fifth Circuit upheld the BIA order and denied relief to Petitioner, overall denying Petitioner's petition for review. 
  • Regarding Petitioner's argument with the IJ's application of Matter of Fuentes, the Fifth Circuit stated in their opinion that they disagreed with Petitioner's characterization of her job with the Ministry of Justice as that of an "ordinary government employee who worked in an office and therefore should be exempted from the application of Matter of Fuentes." Instead, the Fifth Circuit further described that they agreed with the BIA that Petitioner was more than an ordinary government employee and that the threats she received were in the "normal course of her employment in law enforcement" rather than on account of a protected statutory ground.  
  • Regarding Petitioner's argument of future persecution, the Fifth Circuit disagreed with Petitioner's argument that the IJ disregarded evidence that supported Petitioner's fear of persecution. In their opinion, the Fifth Circuit elaborated that the IJ "carefully considered all evidence presented," which included the testimony by the expert witness. Further, the Fifth Circuit discussed that the BIA did not err in rejecting Petitioner's argument regarding fear of persecution and the IJ's consideration of the evidence, as the Fifth Circuit stated that the BIA found that the IJ "considered the 'entirety of the record,' which included the" expert's testimony.

Munoz-De Zelaya v. Garland, No. 22-60505, 2023 WL 5921618 (5th Cir. Sept. 12, 2023) 

Facts & Background
  • Petitioners herein are a husband and wife, who (along with their two children) are citizens of El Salvador. The family entered the United States in units between 2015 and 2016. In 2015, the husband received an NTA, charging him with removability as being present in the United States without authorization. Nearly a year later, the wife and her two children each received NTAs, charging them with removability as being present in the United States without authorization. Both Petitioners applied for asylum and WOR, and the two children were included as derivatives to the wife's applications for relief.  
  • The husband's application listed multiple interactions with gang members, during which the gang members threatened, intimidated, harassed, and extorted the husband—who owned a business selling bicycle parts. The gang extorted the husband, and the gang attacked and threatened to kill the husband. The family did not report the incident, as they believed that the gang would kill them for reporting. The husband then fled El Salvador to seek protection in the United States, and the wife and children remained in El Salvador until they could obtain the money to travel to the United States. After the husband came to the United States, the wife and children relocated to another town in El Salvador to escape the gang, but the wife claimed that she still experienced gang extortion in the new town. When she was unable to pay the gang one time, the gang threatened the wife with a gun and told her that they would make Petitioners' son join the gang and also that they would take the children to a location known for gang torture. The gang members also searched the wife's home and beat her, and they threatened to kill her neighbor who witnessed the attack. The wife and children left El Salvador the following day and were scared to report the incident to the police, fearing that the police would tell the gang.
  • The IJ denied the family's claims for asylum and WOR on multiple grounds, including that "extorted business owners" was not a PSG and that nexus cannot be shown if there is no PSG. The IJ also concluded that extortion is not persecution.
  • The family appealed the denial to the BIA, but the BIA dismissed the appeal, agreeing with the IJ that the family did not bring forth a cognizable PSG. Petitioners then sought review from the Fifth Circuit—challenging the denial of their applications for asylum and WOR.
Notable Holdings & Rationale 
  • The Fifth Circuit denied the petition for review. In the opinion, the Fifth Circuit discussed that "business owners" are not a protected social group—further discussing that being a business owner is not an immutable trait, which has been previously recognized by the Fifth Circuit in other cases. Because the PSG is not cognizable—and a cognizable PSG is essential for asylum and WOR—the family cannot succeed on their claim.  
  • Though Petitioners asked the Fifth Circuit to consider another PSG based on family status and to consider Department of Homeland Security (DHS) policy changes, Petitioners did not previously make these arguments to the BIA. Therefore, the Fifth Circuit declined to reach the arguments that Petitioners failed to previously exhaust.  
  • Petitioners also argued that their original NTAs did not include the date and time of the initial hearing, but the Fifth Circuit did not find the NTAs to be defective. The Fifth Circuit said that even if the NTAs were defective that the defects did not affect the jurisdiction of the BIA or IJ. Therefore, the statutory exhaustion requirement applies, and the Fifth Circuit did not consider this argument further.

Supreme Court

Campos-Chavez Docket 

Facts & Background 
  • Campos-Chaves entered the United States in January 2005, and the U.S. government filed a NTA in immigration court. Campos-Chaves did not appear, and consequently, he was ordered removed in absentia. 
  • After he was ordered removed in absentia, Campos-Chaves filed a motion to reopen–arguing that the IJ lacked authority to conduct the removal proceedings on the basis that the NTA itself was defective. Campos-Chaves submitted an affidavit, in which he stated that he did receive the NTA but that the NTA did not contain the date and time of his removal proceedings.   
  • In petitioning the Fifth Circuit for rehearing en banc, Campos-Chaves argued that the Fifth Circuit should remand the matter to the BIA for reconsideration of his NTA challenge, in light of Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021).  
  • Please look to the "December 2022 Litigation Updates" blog post for further analysis of the Fifth Circuit's decision in Campos-Chavez v. Garland, No. 20-60262 (5th Cir. Dec. 1, 2022).
Notable Holdings & Rationale 
  • In June 2023, the Supreme Court granted the Petition for a Writ of Certiorari in this case. The Court consolidated this case with Garland v. Singh (Case No. 22-884) which the government is appealing from the Ninth Circuit. 
  • The case is set for one hour of oral argument during the Supreme Court's October 2023 Term, although a date has not yet been scheduled.