May Litigation Updates

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

Board of Immigration Appeals (BIA)

Matter of M-N-I-, 28 I&N Dec. 803 (BIA May 24, 2024)


  • "Since choice of law is dependent on venue in Immigration Court proceedings, the controlling circuit law is not affected by a change in the administrative control court and will only change upon the granting of a motion to change venue. Matter of Garcia, 28 I&N Dec. 693 (BIA 2023), followed."

Matter of Delis Ismael FURTADO, Beneficiary of a visa petition filed by Helena Eloisa Johnson, Petitioner, 28 I&N Dec. 794 (BIA May 17, 2024)


  • "A petitioner seeking approval of a Form I-130 for an adopted child from a country that is a party to the Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption, opened for signature May 29, 1993, S. Treaty Doc. No. 105-51, 1870 U.N.T.S. 167 (entered into force May 1, 1995; for the United States Apr. 1, 2008), should provide, regardless of the beneficiary’s length of United States residence: (1) a written statement from the Central Authority of the child’s country of origin stating that it is aware of the child’s presence in the United States and of the adoption, and that it has determined that the child is not habitually resident in the country of origin; and (2) an adoption order or amended adoption order incorporating the language of the statement from the Central Authority."
  • "An adopted child will not be considered habitually resident in the United States unless the petitioner shows that the Central Authority of the child’s country of origin did not respond to the request for a habitual residence statement, that the Central Authority responded that it would not write a habitual residence statement, or that the United States Department of State has confirmed that the Central Authority does not issue habitual residence statements."

Fifth Circuit Court of Appeals

Loredo Rangel v. Garland, 100 F.4th 599 (5th Cir. 2024) - May 1, 2024

Facts & Background
  • Petitioners (Rangel, a mother, and her two minor daughters, Luisa and Mary), citizens of Mexico, petitioned the Fifth Circuit for review of the BIA’s denial of their applications for asylum, withholding of removal (WOR), and relief under the Convention Against Torture (CAT). The Fifth Circuit did not find an error in the BIA’s denial and further denied the petition for review.
  • Petitioners entered the United States and applied for relief before the immigration court, seeking relief based on the claim that the Mexican Navy would persecute and torture Petitioners. Rangel held the Mexican Navy responsible for the disappearance of one of her sons and spoke to multiple journalists and news outlets about the Mexican Navy and their suspected involvement in her son’s disappearance. After Rangel spoke publicly about the Mexican Navy, she and her daughters feared that the Mexican Navy was targeting the family after the family's home was ransacked. Later, the same day as the ransacking, members of the Mexican Navy drove by the family's home--telling neighbors that they were looking for Rangel and her daughters. Petitioners fled Mexico, seeking protection in the United States.
  • Represented by counsel, Petitioners had their merits hearing before the immigration judge (IJ) in October 2015. Petitioners testified before the IJ, filed letters and declarations, and had an expert testify. The IJ found that Petitioners did not satisfy their burden to establish that they had suffered past persecution or that they possessed a well-founded fear of persecution. The IJ also found that Petitioners were not eligible for CAT relief, since they failed to satisfy their burden of establishing the requisite likelihood of future torture. The IJ denied all applications for relief, and Petitioners appealed to the BIA, which affirmed the IJ's decision.
Notable Holdings & Rationale 
  • The Fifth Circuit denied the petition, finding that:
    • (1) Evidence was sufficient to support finding that alleged ransacking of Petitioners' home was not extreme enough to constitute past prosecution, and thus Petitioners did not qualify for asylum on such basis;
    • (2) Evidence was sufficient to support finding that the alleged incidents involving the Mexican Navy did not create an imminent and menacing threat, so as to amount to past persecution which would support an asylum application;
    • (3) Evidence was sufficient to support the finding that Petitioners failed to establish well-founded fear of future persecution, which further precluded relief for asylum;
    • (4) Relief through WOR was not warranted with this case; and
    • (5) Relief under the CAT was also not warranted in this case, with the Fifth Circuit finding that CAT protection was not available on the basis that Petitioners believed that the Mexican Navy would torture them upon return to Mexico.
  • In their holding, the Fifth Circuit discusses in detail why Petitioners did not demonstrate past persecution. The discussion includes the Fifth Circuit's findings that extreme treatment is the standard for establishing past persecution for asylum eligibility; the threat was not sufficiently menacing or imminent; and that there is substantial evidence supporting the BIA's conclusion that the harms experienced by Petitioners do not amount to past persecution. Throughout the discussion, the Fifth Circuit evaluates the incidents experienced by Petitioners--even stating that the Fifth Circuit does not seek to minimize the harms experienced by Rangel--but still, the incidents did not amount to past persecution. Non-physical harm or harm to property can amount to past persecution, but it must still be sufficiently severe to constitute “extreme conduct," nor did the Fifth Circuit view it to be a sustained, systematic effort to target an individual on the basis of a protected ground.
  • In discussing whether Petitioners sufficiently demonstrated fear of future persecution, the Fifth Circuit said that the record did not compare them to reverse the IJ and BIA's conclusions that the Navy is not inclined to punish Rangel or her daughters upon their return to Mexico, additionally stating that Rangel's claim of torture upon return is meritless.
  • Regarding the Fifth Circuit's finding about WOR, the Fifth Circuit explained that WOR is a higher bar for which to qualify compared to asylum and that persecution is a necessary element to qualify for WOR. Therefore, if one does not qualify for asylum, then they would also not qualify for WOR. Because the Fifth Circuit found that Petitioners did not demonstrate that they suffered past persecution or that they possess a well-founded fear of persecution--key elements to asylum eligibility--they are not eligible for relief through WOR either.
  • To the Fifth Circuit's finding about relief under the CAT, the Fifth Circuit discussed that torture is a higher bar than persecution. Because Petitioners' basis for relief did not amount to the level of persecution, then it could not amount to torture either.

First Circuit Court of Appeals

Tulung v. Garland, No. 23-1241, 2024 WL 2287503 (1st Cir. May 21, 2024)

Facts & Background
  • Indonesian-Christians appealed denial of the BIA's motions to reopen to reconsider the denials of their applications for asylum, withholding of removal, and protection under Convention Against Torture (CAT).
  • Asylum claims were based on religious persecution and denied in 2009 because the immigration judge (IJ) found that the past harm did not rise to the level of persecution and that future persecution was not sufficiently likely.
  • They filed a motion to reopen based on changed country conditions in 2014 that was denied by the BIA and not appealed to the federal courts. They filed another motion to reopen based on changed county conditions in 2020 that was denied by the BIA for failing to submit updated applications for protection or relief and failing to demonstrate that country conditions had materially changed since the 2014 denial of their motion to reopen. They did not seek judicial review of these denials.
  • This appeal is based on motions submitted in July 2022: a third motion to reopen, a motion to reconsider the denial of the second motion to reopen, and a motion to amend the second motion to reopen. The third motion to reopen included new evidence of changed country conditions in Indonesia. The BIA denied this motion because the "new" evidence existed prior to filing the second motion to reopen and was cumulative of previously submitted evidence, and because they failed to show the evidence was unavailable at the time of filing the last motion to reopen.
Notable Holdings & Rationale 
  • BIA erred in denying motion to reopen based on the failure to provide new evidence.
    • "We have stated, time and again, that the BIA must compare 'the evidence of country conditions submitted with [a] motion [to reopen] to those that existed at the time of the merits hearing.'. . . The BIA cannot ignore evidence merely because the evidence describes conditions as they existed prior to a previous motion to reopen. . . . Nothing in our caselaw suggests that the BIA can or should compare changed-conditions evidence from a new motion to reopen to evidence from an old motion to reopen, as the BIA here did."
    • "Nor, finally, can the BIA disregard evidence because the evidence was available at the time of a prior motion to reopen."
    • "In sum, the relevant evidentiary comparator for changed country conditions is the original merits hearing, not a previous motion to reopen."
    • "While the BIA has broad discretion to weigh evidence, it may not ignore swaths of the record on legally unjustifiable bases. When it does so, we must remand the issue to the BIA for reconsideration under the proper legal framework."
  • BIA did not error in denying the motion to reconsider and amend because the Tulungs failed to identify a specific factual or legal error in the prior decision.
    • "The Tulungs argue that the BIA erred in denying their second motion to reopen because several recent BIA decisions have granted Indonesian-Christian petitioners' motions to reopen based on changed conditions. But these unpublished BIA decisions carry no precedential value[.]"
    • "A motion to amend, even more simply, is not the proper procedural tool through which the Tulungs may seek reexamination of the denial of a motion to reopen."

Ninth Circuit Court of Appeals

Suate-Orellana v. Garland, 101 F.4th 624 (9th Cir. 2024)

Facts & Background
  • Honduran citizen unsuccessfully applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), and was ordered removed in 2011. She reentered the United States in 2014, was placed in removal proceedings, and had her prior order of removal reinstated.
  • In 2018, within 30 days of the Supreme Court's decision in Pereira, she filed a motion to reconsider and terminate the underlying removal order in her pending removal proceedings based on a defective Notice to Appear (NTA) that failed to comply with the date and time of the hearing requirements of INA § 1229(a)(1). She argued equitable tolling applied and the immigration court lacked jurisdiction. The IJ denied the motion and the BIA dismissed the appeal, reasoning that "the NTA and the hearing notice together provided the respondent with the required notice."
Notable Holdings & Rationale 
  • Exhaustion: The Ninth Circuit held that Suate-Orellana sufficiently exhausted her claim that the NTA was statutorily deficient.
    • "The exhaustion requirement contained in 8 U.S.C. § 1252(d)(1) is a non-jurisdictional 'claim-processing rule.'"
    • "To exhaust a claim, the noncitizen must put the BIA on notice of the challenge, and the BIA must have 'an opportunity to pass on the issue.'"
    • "In her motion to reconsider before the IJ, Suate-Orellana argued that she 'was ordered removed on the basis of a putative Notice to Appear that did not contain the requisite time or place information under the INA.' She then argued in her brief to the BIA that she 'was never issued a valid Notice to Appear indicating the date and time of her proceedings, as the statute requires.' This language was sufficient to put the BIA on notice of her challenge."
    • Rejected the argument that she only challenged jurisdiction and not the statutory deficiency of the NTA
  • Statutorily deficient NTA: BIA was required on remand to consider claim that NTA was statutorily deficient in light of significant legal developments since BIA issued initial decision in 2019, including Matter of Fernandes.
    • Section 1231(a)(5) did not bar reopening or review. "We hold that § 1231(a)(5) is non-jurisdictional, and that the BIA therefore may—as it did here—exercise jurisdiction over an appeal concerning a motion to reopen a reinstated removal order."