December Litigation Updates

Read case summaries of select BIA and 5th Circuit Court of Appeals cases issued this last month.

Board of Immigration Appeals (BIA)

Matter of H.N. Ferreira, 28 I&N Dec. 765 (BIA 2023) - Dec. 19, 2023

  • "Given the significance of a respondent’s interest in securing review of a denial of a petition to remove the conditions on permanent residence, an Immigration Judge should ordinarily review the denial of a Form I-751 upon the request of the respondent."

Matter of M-R-M-S-, 28 I&N Dec. 757 (BIA 2023) - Dec. 1, 2023

  • "If a persecutor is targeting members of a certain family as a means of achieving some other ultimate goal unrelated to the protected ground, family membership is incidental or subordinate to that other ultimate goal and therefore not one central reason for the harm. Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), reaffirmed."

Fifth Circuit Court of Appeals

Delgado-Victorio v. Garland, 88 F.4th 630 (5th Cir. 2023) - Dec. 18, 2023

Facts & Background
  • Petitioner is a citizen of Mexico. He was removed based on a Texas conviction for aggravated sexual assault with a weapon.  
  • He sought review of the BIA determining his removability and denying his request for continuance.
Notable Holding & Rationale 
  • The Fifth Circuit held that aggravated sexual assault with a deadly weapon under Texas law is clearly a crime of violence and thus an aggravated felony. The Fifth Circuit denied his petition for review.

Argueta-Hernandez v. Garland, 87 F.4th 698 (5th Cir. 2023) - Dec. 5, 2023 

Facts & Background
  • This case was previously covered in CILA's "July Litigation Updates" blog post. More information can be found in our prior blog post here. Now, the Fifth Circuit granted the petition for a panel rehearing, withdrew the prior opinion, and substituted this decision.  
  • 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 reentered the United States in 2019.  
  • In 2021, he had a reasonable fear interview where he reported threats to him and his family from the MS-13 gang. He was found credible and that he had a reasonable fear of torture in El Salvador, so withholding-of-removal proceedings were initiated. 
  • Petitioner claimed he was targeted with death threats because he is a Christian. Allegations that MS-13 attempted to kill his son were supported by credible testimony, police reports, and other evidence. He argued that he couldn't relocate in El Salvador due to MS-13 communication networks across the country.  
  • He supplemented his evidentiary file with reports from the U.S. Department of State country conditions reports which provided information on gang threats against religious individuals and expert analysis. 
  • While in El Salvador, he also sought help from four government offices: The National Civil Police, the Anti-Gang Unit, the Human Right's Office, and the Prosecutor's Office, and they all said his life was in danger and they could not protect him. 
  • Petitioner seeks review of the BIA's denial of his application for withholding of removal and protection under the Convention Against Torture (CAT).  
  • The IJ denied his applications for withholding of removal and deferral of removal under CAT. He appealed, and the BIA affirmed and dismissed his appeal. He filed a petition for review with the Fifth Circuit. On July 10, 2023, the panel denied his case for lack of jurisdiction. However, now the Fifth Circuit grants the petition for rehearing to address jurisdiction and the merits of his claims.
Notable Holdings & Rationale 
  • Jurisdiction Question: The Fifth Circuit first addressed the question of jurisdiction, whether the Fifth Circuit has jurisdiction over the petition for review which was filed within 30 days of the BIA's order but several years after the reinstated removal order. According to Santos-Zacaria v. Garland, 598 U.S. 411 (2023), the 30-day filing deadline is not jurisdictional. Therefore, review is not time-barred. Then, the court addressed whether the BIA's order is deemed final for purposes of judicial review. The court found that neither Nasrallah v. Barr, 140 S. Ct. 1683 (2020) nor Johnson v. Guzman Chavez, 141 S. Ct. 2271 (2021) overrules this court's precedent. The Fifth Circuit also notes other circuit courts that similarly addressed the issue in footnote 3. The Fifth Circuit finds that the court has jurisdiction to consider his petition for review regarding withholding of removal and protection under the CAT. 
  • Regarding his claim for Withholding of Removal: The Petitioner argued in the appeal that the IJ and BIA erred by effectively requiring physical injury to establish past persecution, and the Fifth Circuit agreed, noting that "®hreats of death and other serious harm constitute persecution when they are objectively credible" citing to Zhu v. Gonzales, 493 F. 3d 588, 598-99 (5th Cir. 2007). The court contrasted the facts in this matter with those from Morales v. Sessions, 860 F.3d 812 (5th Cir. 2017) and other cases. The Fifth Circuit also compared the facts favorably to Tamara-Gomez v. Gonzales, 447 F.3d 343 (5th Cir. 2006) and found that case instructive. Overall, the court stated, "Based on the cumulative evidence before the BIA, and IJ, Argueta-Hernandez has sufficiently shown a severity of harm for past persecution." The Fifth Circuit disagreed with the BIA and IJ's nexus analysis noting that reasons should not be viewed with an "either-or" analysis and instead should be viewed whether it was one central reason for the harm. Moreover, the Petitioner contends that the IJ failed to consider one of his proposed particular social groups (PSGs): "Salvadoran informants against gang members." The Court found that the BIA erred by failing to adequately consider whether he belonged to the alleged PSG and had a well-founded fear. 
  • Regarding seeking protection under the Convention Against Torture: The Fifth Circuit found that the BIA and IJ failed to take the facts of the case into consideration when determining he had not established government acquiescence and that they failed to consider all evidence before them. The Fifth Circuit found that the IJ and BIA underexplained their assessment of his CAT claim and disregarded evidence. 
  • The opinion from the Fifth Circuit states, "Although we owe deference to the BIA, that deference is not blind. Here, where the BIA misapplied prevailing case law, disregarded crucial evidence, and failed to adequately support its decisions, we are compelled to grant the petition for review, vacate the immigration court decisions, and remand to BIA for further proceedings." 
  • Read more about this case from NIJC here.