Read case summaries of select BIA and Circuit Court of Appeals cases issued this last month.
Board of Immigration Appeals (BIA)
Matter of H-C-R-C- [credibility; CAT]
Matter of H-C-R-C-, 28 I&N Dec. 809 (BIA June 20, 2024)
Holding:
- "(1) Applicants bear the burden of establishing their own credibility, and no statute or legal precedent compels an Immigration Judge to conclude that an applicant’s testimony is credible.
(2) Rape is sufficiently severe to constitute torture and can never be a lawful sanction under the Convention Against Torture."
Ninth Circuit Court of Appeals
Gonzalez-Lara v. Garland [exhaustion; continuous presence for voluntary departure and defective Notice to Appear (NTA); past persecution; gang-related asylum claims]
Gonzalez-Lara v. Garland, No. 23-459, __ F. 4th __ (9th Cir. June 17, 2024)
Facts & Background
- Gonzalez-Lara, a citizen of El Salvador, petitioned for asylum, withholding of removal, and protections under the Convention Against Torture (CAT) based on her fear of persecution by gangs. Gangs threatened everyone, including her, at her aunt's store; her cousin, who was arrested on suspicion of being a gang leader, was killed in jail; another cousin was also believed to have been killed by a rival gang; and she dated a police officer and fled in September after becoming pregnant with his child and receiving a note warning her to be careful.
- She entered the United States in December 2017. In July 2017, a month after her son was born in the United States, she received an NTA that did not contain time and place information.
- She alleged persecution on account of her membership in the particular social groups (PSGs): (1) family members of Salvadoran police officers, (2) family members of Luis Alberto Trujillo Gonzalez (her cousin), (3) Salvadoran women, and (4) Salvadoran single women.
- The immigration judge (IJ) denied relief based on (1) a failure to show past or future persecution; (2) a lack of nexus between the PSG based on her connection to police officers and Salvadoran women; and (3) that Salvadoran single women was not a cognizable PSG.
- Gonzalez-Lara appealed to the BIA and, while the appeal was pending, filed motions to (1) terminate removal proceedings and stay removal and (2) remand to apply for voluntary departure based on the change of how to calculate continuous presence in Posos-Sanchez v. Garland, 32 F. 4th 1176 (9th Cir. 2021).
The BIA affirmed the IJ's ruling and denied the motions.
Notable Holdings & Rationale
- The BIA erred in denying the motion to remand to apply for voluntary departure. According to the BIA, Gonzalez-Lara was ineligible for relief under the changed law because she never sought voluntary departure before the IJ. The Ninth Circuit disagreed, reasoning that the change in law provided a previously unrecognized ground for relief.
- Under Posos-Sanchez, a defective NTA does not stop the clock running for purposes of accruing continuous presence to qualify for voluntary departure.
- The Ninth Circuit also noted that motions to remand are like motions to reopen, which allow for applications of new forms of relief and that there is no requirement to exhaust a form of relief if doing so would have been futile at the time.
- Because the change in law meant that Gonzalez-Lara, who received a defective NTA, could now potentially qualify for relief, the BIA erred by in holding that she barred from seeking relief.
- However, the Ninth Circuit ultimately affirmed the BIA's decision to deny relief in this case because Gonzalez-Lara had failed to allege facts related to her means and intent to depart the United States and to her good moral character, and thus had established prima facie eligibility for voluntary departure.
- The Ninth Circuit also agreed with the BIA that she waived certain arguments related to her asylum claim by failing to brief them properly on appeal and that substantial evidence supported finding that the alleged harm "was too speculative to support her claim for relief." Specifically, Gonzalez-Lara was "aware of rumors" but never harmed and "did not present evidence that the gangs have shown interest in her, her former partner, or her family since she left El Salvador in 2017."
Eleventh Circuit Court of Appeals
Rosales-Mendez v. U.S. Att’y Gen. [change of address requirements; in absentia removal orders; defective NTAs; notice]
Rosales-Mendez v. U.S. Att’y Gen., No. 22-13164, __ F. 4th __ (11th Cir. June 20, 2024)
Facts & Background
- Rosales-Mendez, a citizen of Honduras, was apprehended by border patrol while trying to fly domestically from Houston to Miami to live with her boyfriend. She received a statutorily deficient NTA that was missing the time and place information.
- Because she did not know her new address, border patrol called her boyfriend to get the information for where she planned to live. The address he provided contained a clerical, which meant Rosales-Mendez did not receive the subsequent Notice of Hearing (NOH) with time and place information when it was mailed seven months later. She never sought to correct the clerical error in the address provided by her boyfriend that was included in the NTA.
- She did not appear at the hearing and was ordered removed in absentia. Sixteen years later, she sought to reopen removal proceedings under INA § 240(b)(5)(C)(ii) for lack of notice. The IJ denied the motion and the BIA affirmed.
Notable Holdings & Rationale
- The Eleventh Circuit denied the petition and held that the burden was on Rosales-Mendez to correct the errors in her address of record.
- The government acknowledged that Rosales-Mendez did not receive a notice of the hearing time or place, but argued that it was not required to provide one because she failed to give them proper contact information.
- The Eleventh Circuit agreed, pointing to language in the statute and regulations that the noncitizen was the one obligated to provide correct contact information to the immigration court, and noting that the NTA informed Rosales-Mendez of this obligation and included the address that should have been corrected.
- The fact that the mistake was seemingly made by her boyfriend providing incorrect information or the agent recording it wrong, and not an act taken by Rosales-Mendez herself, did not change their analysis.
Seventh Circuit Court of Appeals
Santiago Lopez v. Garland: [cancellation of removal; defective NTA, waiver of claim-processing objections]
Santiago Lopez v. Garland, No. 23-2081, __ F. 4th __ (7th Cir. June 24, 2024)
Facts & Background
- Santiago Lopez, a citizen of Mexico and father to four children in the United States, was placed in removal proceedings in 2013 after his third DUI conviction. His counsel objected to substantive deficiencies in the NTA at a hearing in January 2014, but did not raise specific concerns about the lack of date and time information. He conceded removability and applied for cancellation of removal.
- The IJ in 2018 granted his request for voluntary departure but denied cancellation of removal, reasoning that even if the elements had been established, he would exercise discretion to deny relief because the negative facts related to his history of drinking and criminal convictions outweighed the factors in favor of allowing him to stay.
- The BIA affirmed and also held that the lack of time and date information in the NTA did not deprive it of jurisdiction.
Notable Holdings & Rationale
- The Seventh Circuit held that Santiago Lopez was only challenging the IJ's exercise of discretion, and that it lacked authority to review the IJ's discretionary assessment. It reasoned that there were no procedural errors, constitutional claims, or questions of law that could form the basis for seeking review in the federal court of appeal.
- The Seventh Circuit also reiterated that the statutory NTA requirements are a claim-processing rule, not jurisdictional. Claim-processing objections are forfeited if not timely waived. In the Seventh Circuit, an untimely objection may be excused if the petitioner provides an excuse or shows prejudice. Santiago Lopez did not object to the lack of time and place information in the NTA until his appeal to the BIA, and he "did not attempt to excuse the untimeliness of the objection." Nor did he "attempt to explain how he suffered prejudice as a result of the defective NTA." Thus, his objection was rejected by the Seventh Circuit.
Supreme Court
Campos-Chaves v. Garland, No. 22-674 [NTA; motion to reopen; in absentia order]
Facts & Background
- The Supreme Court heard oral arguments on January 8, 2024 and issued its decision on June 14, 2024.
- For an analysis of this case, please refer to the CILA-NILA Practice Advisory on "In Absentia Orders." The practice advisory was last updated in June 2024 in light of this decision and in advance of the CILA-NILA webinar, “Defective Notices to Appear” to be held in July 2024.
- 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).
Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce [Chevron doctrine; regulatory interpretation]
Loper Bright Enterprises v. Raimondo, Secretary of Commerce, 603 U. S. ____ (2024)
Facts & Background
- This case was decided together with Case No. 22-1219, Relentless, Inc., et al., Petitioners v. Department of Commerce.
- The Court granted certiorari in these cases, limited to the question whether Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, should be overruled or clarified.
Notable Holdings & Rationale
- Judgment VACATED and case REMANDED. Roberts, C. J., delivered the opinion of the Court, in which Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Thomas, J., and Gorsuch, J., filed concurring opinions. Kagan, J., filed a dissenting opinion, in which Sotomayor, J., joined, and in which Jackson, J., joined as it applies to No. 22–1219. Jackson, J., took no part in the consideration or decision of the case in No. 22–451.
- Holding: The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous; Chevron is overruled.
- For additional analysis of this case with respect to immigration, please look to the July 1, 2024 episode of the Immigration Review Podcast by Kurzban Kurzban Tetzeli & Pratt.
Department of State v. Munoz, [Due Process Clause; consular nonreviewability]
Department of State v. Munoz, Case No. 23-334 (June 21, 2024)
Facts & Background
- Respondent Sandra Muñoz is an American citizen. In 2010, she married Luis Asencio-Cordero, a citizen of El Salvador. The couple eventually sought to obtain an immigrant visa for Asencio-Cordero so that they could live together in the United States. Muñoz filed a petition with USCIS to have Asencio-Cordero classified as an immediate relative.
- USCIS granted Muñoz’s petition, and Asencio-Cordero traveled to the consulate in San Salvador to apply for a visa. After conducting several interviews with Asencio-Cordero, a consular officer denied his application, citing §1182(a)(3)(A)(ii), a provision that renders inadmissible a noncitizen whom the officer “knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in” certain specified offenses or “any other unlawful activity.”
- Asencio-Cordero guessed that he was denied a visa based on a finding that he was a member of MS–13, a transnational criminal gang. So he disavowed any gang membership, and he and Muñoz pressed the consulate to reconsider the officer’s finding. When the consulate refused, they appealed to the Department of State, which agreed with the consulate’s determination. Asencio-Cordero and Muñoz then sued the Department of State and others (collectively, State Department), claiming that it had abridged Muñoz’s constitutional liberty interest in her husband’s visa application by failing to give a sufficient reason why Asencio-Cordero is inadmissible under the “unlawful activity” bar.
- The District Court granted summary judgment to the State Department, but the Ninth Circuit vacated the judgment, holding that Muñoz had a constitutionally protected liberty interest in her husband’s visa application.
Notable Holdings & Rationale
- Judgment REVERSED and case REMANDED. Barrett, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, and Kavanaugh, JJ., joined. Gorsuch, J., filed an opinion concurring in the judgment. Sotomayor, J., filed a dissenting opinion, in which Kagan and Jackson, JJ., joined.
- Holding: A citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country.