January Litigation Updates

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

Board of Immigration Appeals (BIA)

Matter of Aguilar Hernandez28 I&N Dec. 774 (BIA 2024) - Jan. 31, 2024

  • "The Department of Homeland Security cannot remedy a notice to appear that lacks the date and time of the initial hearing before the Immigration Judge by filing a Form I-261 because this remedy is contrary to the plain text of 8 C.F.R. § 1003.30 and inconsistent with the Supreme Court’s decision in Niz-Chavez v. Garland, 593 U.S. 155 (2021)."

Matter of Panin, 28 I&N Dec. 771 (BIA 2024) - Jan. 11, 2024

  • "A respondent’s release from Federal pretrial criminal custody does not preclude an Immigration Judge from denying a respondent’s request for release from immigration detention under section 236(a) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a) (2018)."

Fifth Circuit Court of Appeals

Velasquez-Castillo v. Garland, 91 F.4th 358 (5th Cir. 2024) - Jan. 17, 2024 

Facts & Background
  • Petitioner is a citizen of Honduras. He filed a petition for review to the Fifth Circuit to consider a denial of a motion to reopen proceedings from the Board of Immigration Appeals (BIA). Both the petitioner and respondent agreed that the court should vacate and remand the case.  
  • Velasquez-Castillo first arrived with his mother to the United States in July 2019. They were placed in proceedings under Migrant Protection Protocols (MPP). In January 2020, an immigration judge (IJ) ordered them removed and denied their applications for asylum, withholding of removal (WOR), and protection under the Convention Against Torture (CAT).  
  • Later, he returned to the United States and entered at age 17 as an unaccompanied child. 
  • He filed for asylum with the United States Citizenship and Immigration Services (USCIS) and filed a motion to reopen arguing that his removal would violate the Trafficking Victims Protection Reauthorization Act (TVPRA) and that there was new evidence about his sexual orientation that was relevant to his previously denied relief. Shortly thereafter, the Department of Homeland Security (DHS) executed the IJ's order and removed him to Honduras. 
  • Subsequently, the IJ denied his motion to reopen finding that he failed to show that the new evidence regarding his sexual orientation was not previously available and could not be presented or discovered at the prior January hearing. Velasquez-Castillo filed a timely appeal to the BIA "arguing that (1) DHS's failure to place him in TVPRA removal proceedings was a due process violation that foreclosed his right to seek asylum, and (2) his disclosure of his sexual orientation upon the second entry was new material evidence that warranted reopening." The BIA upheld the IJ's decision. He filed this petition for review and a motion to reconsider to the BIA. The BIA denied the motion. Velasquez-Castillo filed another petition for review, and the Fifth Circuit consolidated the petitions.
Notable Holdings & Rationale 
  • The court first determined that the case is not moot, and then moved forward with its analysis.  
  • The Fifth Circuit decision states that TVPRA proceedings are mandatory, and here, the BIA's opinion did not address the application of the TVPRA. The BIA should consider if the TVPRA can be a remedy on remand.  
  • Upon remand, the BIA should also consider whether the additional evidence he filed in his motions meet the requirements for his motion to reopen. The Fifth Circuit stated, "It is unclear whether the BIA sufficiently considered the evidence regarding Velasquez-Castillo's sexual orientation and his experiences with threats of violence in Honduras." 
  • The Fifth Circuit determined that the "BIA erred in denying the motion to remand without resolving the issue of the statutory provisions related to an unaccompanied minor, and that the BIA failed to consider whether there was new and previously unavailable evidence in support of asylum eligibility." As a result, the Fifth Circuit vacated the BIA's decision and remanded the case to the BIA.

Mejia-Alvarenga v. Garland, 90 F.4th 348 (5th Cir. 2024) - Jan. 3, 2024

Facts & Background
  • Petitioner is a citizen of El Salvador. She applied for WOR, CAT, and asylum. The IJ denied her application for CAT but she did not appeal that decision before the BIA, therefore that challenge has been forfeited. 
  • The IJ found that although petitioner was credible and established past harm rising to the level of persecution, the harm was not on account of a political opinion or her membership in a PSG. The IJ also found that Petitioner did not establish a well-founded fear of future persecution because she did not show that the government would be unable or unwilling to control a future persecutor. 
  • Petitioner appealed the IJ's decision to the BIA, requesting a three-member panel. In a single-member panel, the BIA affirmed the IJ's decision and denied petitioner's motion to remand. The BIA agreed with the IJ's determination that petitioner failed to show that Salvadoran authorities were unable or unwilling to protect her. The BIA's order also rejected other procedural and substantive arguments made by petitioner in her appeal.
Notable Holdings & Rationale 
  • The Fifth Circuit denied in part, dismissed in part for lack of jurisdiction. 
  • The Court held that the BIA did not err in its determination that petitioner failed to establish that the Salvadoran government was unable or unwilling to protect her. While petitioner argued for a standard of proof of "at least a ten percent chance", the Court disagreed. 
  • The Court rejected petitioner's argument that the BIA violated its regulatory obligation to be impartial under 8 C.F.R. § 1003.1(d)(1) by not requiring DHS to file briefing. 
  • The Court also rejected petitioner's argument that the BIA violated her due process rights when it allowed a single BIA member to issue the decision rather than referring to a three-member panel. 
  • Petitioner also argued that New Orleans's 10% asylum grant rate establishes bias when compared with New York and Honolulu's grant rates of 43% and 60% respectively. The Court previously rejected this argument in Singh v. Garland, 20 F.4th 1049, 1054-55 (5th Cir. 2021). 
  • Finally, the Court held that it lacks jurisdiction over petitioner's argument that the BIA committed an abuse of discretion by not referring her case to a three-member BIA panel.

Supreme Court

Campos-Chavez Docket 

Facts & Background 
  • The Supreme Court heard oral arguments on January 8, 2024. A decision is pending. 
  • Please look to the "September 2023 Litigation Updates" blog post for further discussion of the facts, background, and procedural issues. 
  • 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).