March Litigation Updates

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

Board of Immigration Appeals (BIA)

Matter of F-C-S-, 28 I&N Dec. 788 (BIA 2024) - Mar. 14, 2024

Holding:
  • "The regulation at 8 C.F.R. § 1240.17 (2024) applies only to those respondents placed in expedited removal proceedings whose applications for relief and protection were first adjudicated by United States Citizenship and Immigration Services and who were then placed in removal proceedings under section 240 of the Immigration and Nationality Act, 8 U.S.C. § ‍1229a (2018)."

Fifth Circuit Court of Appeals

United States v. State, No. 24-50149 (5th Cir. Mar. 26, 2024) - Mar. 26, 2024

Facts & Background
  • In November 2023, Texas passed Senate Bill 4. Among other things, notably, Senate Bill 4 would allow Texas state officials to arrest individuals who are suspected of illegal entry at the southern border into the United States.
  • In December 2023, Texas Governor Abbott signed Senate Bill 4 into law, with the law set to go into effect on March 5, 2024.
  • The Biden administration, two nonprofits, and the County of El Paso sued to enjoin enforcement of Senate Bill 4. On February 29, 2024, days before the law was to go into effect, U.S. District Judge Ezra issued a preliminary injunction that blocked the enforcement of Senate Bill 4.
  • The State of Texas appealed the district court's block of Senate Bill 4, and the Fifth Circuit then reversed the district court's decision. The plaintiffs then appealed this reversal before the Supreme Court, and the Supreme Court allowed Senate Bill 4 to go into effect on March 19, 2024. Justices Sotomayor, Kagan, and Jackson dissented against the ruling.
  • However, within hours of the Supreme Court's ruling, the Fifth Circuit issued another injunction of Senate Bill 4, once again blocking enforcement of Senate Bill 4.
  • The State of Texas then went before the Fifth Circuit to ask for a stay of the injunction pending appeal, asking the Fifth Circuit to allow enforcement of Senate Bill 4 while the Fifth Circuit considers the appeal of the preliminary injunction. Oral arguments regarding the stay pending appeal of the injunction were presented on March 20, 2024 before a three-judge panel.
  • On March 26, 2024, in a 2-1 decision, the Fifth Circuit ruled to deny the State of Texas's motion for stay pending appeal, meaning that the district court's preliminary injunction will remain in effect while the State of Texas appeals this preliminary injunction. In other words, Senate Bill 4 will not go into effect while the State of Texas appeals the district court's preliminary injunction of Senate Bill 4.
  • On April 3, 2024, the en banc court of the Fifth Circuit will hear the State of Texas's appeal of the preliminary injunction.
Notable Holdings & Rationale 
  • On March 26, 2024, two of the three judges on the Fifth Circuit panel voted for the preliminary injunction to remain in effect and block the enforcement of Senate Bill 4 as the legal battle continues in the courts. Chief Judge Priscilla Richman wrote the majority's decision, with much of the decision discussing the question of whether federal law preempts Senate Bill 4. Some notable takeaways from the majority's decision include:
    • rejection of the argument presented by the State of Texas regarding an invasion and the triggering of Article I, § 10 of the Constitution, the "State War Clause";
    • an acknowledgment that enforcement of Senate Bill 4 could jeopardize the United States's adherence to treaty obligations; and
    • discussion that Senate Bill 4's removal provision seems to conflict with federal law.
  • Judge Oldham dissented, stating that he would grant the stay and that the plaintiffs must demonstrate that Senate Bill 4 is unconstitutional in each of its possible applications and that the plaintiffs would likely be unable to do so.

Mejia-Alvarenga v. Garland, 22-60554 (5th Cir. Mar. 8, 2024) - Mar. 8, 2024

Facts & Background
  • Petitioner, citizen of El Salvador, was detained at the southwest border and later charged with removability because she did not have valid documentation when she entered. Petitioner conceded to the charge of removability and then filed an application for withholding of removal and protection under the Convention Against Torture (CAT). Petitioner later amended this application to include asylum.
  • Petitioner's claim was based on threats she received from a man named Rigoberto Nelson ("Nelson"), a MS-13 gang member, along with threats from people associated with Nelson. Nelson sexually assaulted Petitioner in El Salvador and then threatened to kill Petitioner if she went to the police. Petitioner reported the sexual assault to the police, which led to Nelson's arrest and prosecution. Petitioner attended two of the court hearings, after which time individuals connected with Nelson tried to convince Petitioner to drop the case. Men would come to Petitioner's fruit stand and threaten her. Additionally, Petitioner's first attorney tried to bribe her to drop the case, which resulted in the judge removing the attorney from the case. Petitioner's second attorney also tried to offer Petitioner money to drop the case and, like Petitioner's first attorney, was removed from the case. Nelson's relatives also visited Petitioner and tried to bribe her to drop the case against Nelson, and they made comments to Petitioner that made her feel threatened. Petitioner also claimed that Nelson had other individuals visit Petitioner and threaten her. Petitioner's relative received a note about Petitioner, which Petitioner reported to the police—though the police informed Petitioner that they could not do anything with the note. Seven years after the sexual assault, Nelson got out of prison and threatened Petitioner for bringing the case against him, and Petitioner was too scared to report the threat to the police. Thereafter, she traveled to the United States to seek safety.
  • The immigration judge (IJ) denied Petitioner's application. The IJ found Petitioner to be credible and did say that he had suffered past harm rising to the level of persecution, but the IJ concluded that Petitioner was not harmed due to a political opinion or membership in a particular social group (PSG). Additionally, the IJ found that Petitioner did not establish a well-founded fear of future persecution since she did not show that the government of El Salvador would be unable or unwilling to protect Petitioner.
  • Petitioner appealed the IJ's decision to the BIA, and she also filed a motion requesting that the BIA to refer her appeal to a three-member panel and asking for summary reversal and remand. A single-member panel of the BIA affirmed the IJ's decision and denied Petitioner's motion. The BIA's denial included the finding that Petitioner failed to show that Salvadoran police were unable or unwilling to protect her.
  • Petitioner timely sought review of the BIA's denial of Petitioner's asylum application and brought four issues before the Fifth Circuit. Before the Fifth Circuit, Petitioner argued that the BIA erred in denying her relief because:
    • (1) Petitioner's asylum application established that the Salvadoran government was unable or unwilling to protect Petitioner from her persecutors;
    • (2) the BIA failed to act as an impartial adjudicator;
    • (3) the BIA violated Petitioner's constitutional rights by allowing a single-member BIA panel to issue a decision in her case, instead of a three-member panel; and
    • (4) the BIA committed an abuse of discretion by not referring Petitioner's case to a three-member BIA panel.
Notable Holdings & Rationale 
  • The Fifth Circuit denied Petitioner's petition with regard to the first three issues. For the fourth issue (abuse of discretion), the Fifth Circuit dismissed the petition for lack of jurisdiction.
  • Notably, regarding the first issue, the Fifth Circuit held that the BIA did not err in determining that Petitioner failed to show that the Salvadoran government would be unable or unwilling to control Petitioner's persecutors, and the Fifth Circuit stated that a reasonable factfinder could find that substantial evidence demonstrated that the Salvadoran government would not be unwilling or unable to control Petitioner's persecutors. The Fifth Circuit discussed Rigoberto's prosecution and the facts surrounding the court case and the judge removing Petitioner's attorneys who attempted to bribe her as instances of the government not being unwilling or unable to control Petitioner's persecutors. Moreover, the Fifth Circuit discussed that Petitioner deprived the Salvadoran authorities of an opportunity to protect Petitioner since she did not report the first two threats to the police.

Membreno-Rodriguez v. Garland, No. 23-60022 (5th Cir. Mar. 4, 2024) - Mar. 4, 2024

Facts & Background
  • Petitioner, citizen of Honduras, sought review from the Fifth Circuit of the denial of his motion to reopen his removal proceedings.
  • Petitioner applied for admission to the United States in April 2017. He was then referred to an asylum officer, and the asylum officer found that Petitioner shad a credible fear of persecution or torture if he were to return to Honduras. Later in April 2017, the Department of Homeland Security (DHS) issued a Notice to Appear (NTA), charging Petitioner as inadmissible to the United States because Petitioner sought admission to the United States without a valid entry document. Petitioner was later granted parole, but the parole expired on April 27, 2018.
  • While the Petitioner was in removal proceedings, he conceded to the charge of inadmissibility in the NTA and later filed an application for asylum, withholding of removal, and protection under the CAT. The IJ denied this application at Petitioner's individual hearing.
  • Petitioner appealed the IJ's denial to the BIA, and the BIA then affirmed the IJ's denial and dismissed Petitioner's appeal.
  • In 2020, Petitioner later filed a motion to reopen his removal proceedings based on his marriage to a U.S. citizen, arguing that proceedings should be reopened so that Petitioner could adjust status to lawful permanent residency based on his pending I-130 petition. Later, Petitioner filed an I-979 Notice of Action, which showed that the I-130 Petition had been approved, and applied for adjustment of status to lawful permanent residency. However, the BIA denied the motion to reopen, finding that Petitioner did not show that he was eligible for adjustment of status since he had conceded inadmissibility before the IJ. Specifically, the BIA denied the motion to reopen because the BIA found that Petitioner did not meet his burden of showing that he was prima facie eligible for adjustment of status.
    Petitioner then timely filed a petition for review of this BIA decision, arguing that the BIA erred in denying the motion to reopen.
Notable Holdings & Rationale 
  • The Fifth Circuit denied the Petitioner's petition for review of the denial of the motion to reopen.
  • In their decision, the Fifth Circuit stated the BIA's holding was based on the fact that the IJ had found that Petitioner's parole had already been terminated when Petitioner was served with the NTA, along with the fact that Petitioner had conceded to his inadmissibility before the IJ. The Fifth Circuit discussed that Petitioner did not contest that he admitted to the allegations presented in the NTA, including the charge of inadmissibility. Though Petitioner argued that he is eligible for adjustment of status based on the Fifth Circuit's holdings in Marques v. Lynch, 834 F.3d 549 (5th Cir. 2016) and Pei-Chen Tien v. INS, 638 F.2d 1324 (5th Cir. 1981), the Fifth Circuit distinguished Petitioner's case from those prior cases.
  • Further, the Fifth Circuit said that even if they were to apply those two holdings to his case, Petitioner's parole expired in April 2018, before he applied for adjustment of status in 2020. Despite the status of his parole, Petitioner was an applicant for admission when he filed his motion to reopen his removal proceedings. Substantial evidence supports the BIA's conclusion that Petitioner is ineligible for adjustment of status because Petitioner conceded to inadmissibility and because his parole did not have any effect on his status as an applicant for admission into the United States.

Sixth Circuit Court of Appeals

Vasquez-Rivera v. Garland, No. 21-3344 (6th Cir. Mar. 15, 2024)

Facts & Background
  • Petitioner, a citizen of El Salvador, entered the United States in 2014 when she was 9 years old and was placed in removal proceedings upon entry.
  • She had counsel in immigration court and filed applications for asylum withholding of removal, and protection under the CAT.
  • Gang members targeted her family in El Salvador, including threatening her uncle, killing another uncle in 2006, demanding money from an aunt and her mother, firing shots at her house in 2006, and raping an aunt and cousin in 2008. She stopped attending school and fled El Salvador because she feared that she would be raped if she remained.
  • When she was 13 years old, the IJ held a hearing on the merits of the case. Petitioner and her mother testified.
  • The IJ denied relief, finding that the proposed PSGs were not cognizable, that the witnesses were not credible, and that she had failed to meet her burden to show that she would face harm rising to the level of torture in El Salvador or that the Salvadoran government would be willfully blind to any problems that she might have.
  • Petitioner appealed to the BIA, and the BIA affirmed.
Notable Holdings & Rationale 
  • Cognizable PSGs in gang violence cases: The alleged PSGs in the case were: “(1) Salvadoran women and girls whose parents live outside the country; (2) her family; (3) family members of persons targeted for gang recruitment whose family is threatened when they refuse to join the gangs; and (4) young Salvadoran women considered to be property of the gangs.” The IJ found all four PSGs were not cognizable. The BIA found three of the four PSGs were not cognizable but that her membership in the Vasquez-Rivera could be a cognizable PSG. The Sixth Circuit agreed that three of the four PSGs were not cognizable. Country conditions evidence was not enough, and the PSGs “lack[ed] the specificity necessary to qualify as a particular social group.”
  • Family-based PSG & BIA fact finding: For the family-based PSG, the BIA denied relief based on a failure to show nexus between the PSG and the alleged persecution. The Sixth Circuit concluded that a nexus determination is a finding of fact and that “where the IJ has not made a finding of fact on a disputed matter, and such a finding is necessary to resolution, the BIA must remand to the IJ to make the required finding; it may not conduct its own fact-finding.” Here, the BIA in deciding the nexus issue “attributed analysis to the IJ that the IJ never undertook.” The case was remanded to the BIA to either affirm on the basis of a lack of a cognizable PSG or to reconsider the nexus issue based on the facts that the IJ found.
  • Nexus: The Sixth Circuit considered in dicta the appropriate standard to apply for determining nexus in a withholding of removal claim and whether it needed to revisit prior caselaw on this issue. It noted that a divided panel held in Guzman v. Barr, 959 F.3d 253 (6th Cir. 2020) that an applicant must show that a protected ground is “at least one reason for their persecution.” However, judges in other federal courts of appeals have called into question whether that is the appropriate standard because asylum is meant to require a lower standard of proof than withholding of removal. The panel in this case remanded for consideration under the existing standard in Guzman, but noted that “[p]erhaps a future case will present our en banc Court or the Supreme Court with the opportunity to clarify the matter.”
  • CAT: The Sixth Circuit held that substantial evidence supported the BIA’s conclusion to deny relief under the CAT. It determined that the “general evidence” provided of country conditions in El Salvador “fail[ed] to demonstrate that Ms. Vasquez-Ramirez herself ‘faces a particularized and likely threat of torture at the hands of a public official, or with the consent or acquiesance of a public official,’ in El Salvador.” (quoting Marqus v. Barr, 968 F.3d 583, 587 (6th Cir. 2020).

Tenth Circuit Court of Appeals

Miguel Pena v. Garland, No. 22-9580 (10th Cir. Mar. 4, 2024)

Facts & Background
  • Petitioner and her daughter, citizens of El Salvador, entered the United States and were placed in removal proceedings in 2016.
  • They moved to terminate removal proceedings in February 2019 based on having received a defective NTA that lacked the time and date of the hearing and the holding in Pereira v. Sessions, 585 U.S. 198 (2018). The IJ denied the motion.
  • They sought asylum, withholding of removal, and protection under the CAT based on testimony that Petitioner held "anti-gang political opinions" and that she was a business owner threatened by gangs. The IJ denied relief based on a lack of persecution, nexus, and a cognizable PSG.
  • Petitioner appealed to the BIA, arguing a lack of due process for the failure to terminate because of the defective NTA and that the asylum claim was wrongfully decided. The BIA affirmed.
Notable Holdings & Rationale 
  • Defective NTA & exhaustion: The Tenth Circuit reiterated its prior holding that "a statutorily defective NTA does not deprive the IJ of jurisdiction because § 1229(a) is a claim-processing rule, not a jurisdiction-conferring requirement." It also relied on the U.S. Supreme Court's holding in Santos-Zacaria v. Garland, 598 U.S. 411 (2023) that a federal court can only review an issue if it is exhausted in the courts below and that "the § 1252(d)(1) exhaustion requirement is a claim-processing rule." Here, the motion to terminate based on the NTA raised jurisdictional arguments before the IJ, not a violation of claim-processing rule. Accordingly, the Tenth Circuit dismissed the claim-processing arguments for failure to exhaust below. The Tenth Circuit also held that it could find a failure to exhaust even if the Government failed to timely raise this argument.
  • Nexus: The Tenth Circuit agreed with the BIA that there was a failure to show nexus between the alleged anti-gang political opinion and persecution. It noted that the "only evidence" of political opinion was in the asylum declaration stating that Petitioner thought gang control was wrong, but there was no evidence of gang members being aware of this opinion and that she also admitted that she refused to pay because she lacked money.
  • Employment-based PSG: The Tenth Circuit agreed with the BIA that the proposed PSG of "women business owners in El Salvador" is not cognizable. Citing Matter of Acosta, it noted that employment is not immutable because it can change and that an asylum applicant can be required to change employment to avoid persecution.

Supreme Court

U.S. v. Texas, Case No. 23A814 - Mar. 19, 2024

Facts & Background 
  • Please see the discussion above for USA v. State of Texas in the Fifth Circuit updates.