Read case summaries of select BIA, Fifth, First, and Sixth Circuit Court of Appeals cases issued this last month.
Board of Immigration Appeals (BIA)
Matter of D. Rodriguez [crimmigration; Texas Penal Code]
Matter of D. Rodriguez, 28 I&N Dec. 815 (BIA 2024)
Holding:
(1) A conviction for an attempt to commit a crime may constitute a crime of child abuse, child neglect, or child abandonment under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2018).
(2) The respondent’s conviction for attempted injury to a child under sections 15.01(a) and 22.04(a)(1) of the Texas Penal Code renders him removable under section 237(a)(2)(E)(i) of the INA, 8 U.S.C. § 1227(a)(2)(E)(i), for having committed a crime of child abuse.
Fifth Circuit Court of Appeals
Momin v. Jaddou [I-601 waiver; adjustment of status]
Momin v. Jaddou, No. 23-20327 (5th Cir. Aug. 28, 2024)
Facts & Background
- Naeem Nizar Ali Momin, a citizen of Pakistan, has lived in the U.S. for the last 30 years. He is married to a U.S. citizen and the father of U.S. citizen children.
- Appellant has applied for adjustment of status three times, the last of which was denied in 2021, on the ground that the use of an incorrect birthdate had "permeated all facets" of his life and constituted fraud, rendering him ineligible for adjustment.
- Upon entry in 1994, Appellant indicated his birthdate was November 20, 1975. On his I-485 and other immigration forms, Appellant stated his DOB was December 21, 1976.
- USCIS conducted "forensic analysis" and determined that Appellant's birth certificate and passport were fraudulent documents. USCIS found Appellant inadmissible for having made multiple misrepresentations and denied his I-601 request for a waiver of inadmissibility.
- Appellant sought review in district court, which dismissed for lack of subject matter jurisdiction, finding that decisions on inadmissibility waivers are "squarely within the discretion [of] USCIS." Patel v. Garland, 142 S. Ct. 1614, 1622 (2022).
Notable Holdings & Rationale
- The Fifth Circuit affirmed the district court decision because the plain language of 8 U.S.C. 1252(a)(2)(B)(i) precludes judicial review of denials of applications for adjustment of status and waivers of inadmissibility.
- The Court reviewed dismissal for lack of subject matter jurisdiction de novo.
First Circuit Court of Appeals
Lemus-Aguilar v. Garland [gang-related asylum claims; particular social group (PSG); country conditions evidence]
Lemus-Aguilar v. Garland, No. 23-1799, __ F. 4th ___ (1st Cir. Aug. 12, 2024)
Facts & Background
- Citizen of El Salvador sought asylum based on her membership in the particular social group (PSG) of “single, Salvadoran mother[s] with no familial protection.” In support of her application, she submitted her declaration, a declaration from a female neighbor in El Salvador who was also targeted for extortion by gang members, a 2017 U.S. Department of State Human Rights Report on El Salvador, and declarations from various experts on conditions in El Salvador. She also testified at the hearing.
- The IJ denied relief, finding a credible fear of returning to El Salvador and that the applicant had received threats rising to the level of past persecution, but that she was not entitled to relief because she failed to show a cognizable PSG and the nexus element. According to the IJ, she was targeted because of her “home's proximity to an area where the gang conducted drug deals, and because of her knowledge of those activities,” not a statutorily protected ground.
- The BIA affirmed first on the ground that the PSG was insufficiently particular, explaining that that the term “no familial protection” is a “subjective term without a clear meaning.” It also agreed that she failed to show her membership in the proposed PSG was a central reason for the persecution.
Notable Holdings & Rationale
- The First Circuit affirmed the BIA’s decision. On the nexus issue, it reasoned that “[the] record amply supports the conclusion that Lemus-Aguilar's status as a ‘single, Salvadoran mother with no familial protection’ was ‘incidental, tangential, superficial, or subordinate’ to the persecutors’ principal motivation of recruiting Lemus-Aguilar to assist with their drug-related criminal activities.” The Court also reviewed the supporting evidence and concluded it did not support reversing the BIA.
Sixth Circuit Court of Appeals
Tista-Ruiz de Ajualip v. Garland [asylum; withholding of removal; domestic violence; particular social group (PSG); government unable or unwilling to protect]
Tista-Ruiz de Ajualip v. Garland, No. 23-3274, __ F. 4th ___ (6th Cir. Aug. 9, 2024)
Facts & Background
- Citizen of Guatemala applied for asylum and withholding of removal for herself, three children, and grandson. They fled Guatemala because they feared her son-in-law, who had threatened to kill them.
- The IJ held a hearing in 2019 and denied relief based on the Attorney General’s 2018 decision in Matter of A-B-, 27 I&N Dec. 316, 320 (2018) (“Matter A-B-I”). After the IJ denied relief, but before the BIA considered the appeal, Attorney General Garland overruled and vacated Matter of A-B- I in the 2021 decision in Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) (Matter of A-B-II).
- On appeal, the BIA acknowledged that the legal precedent had changed but nevertheless affirmed the denial, reasoning that “‘victims of domestic violence’ does not qualify as a PSG under Sixth Circuit precedent because the group is ‘circular[ly] defined by the harm,’ and (2) the IJ’s conclusion that Marta did not meet her burden of showing that ‘the Guatemalan government would be unwilling or unable to protect her ... is not clearly erroneous, as [her] personal experience with the police does not suggest’ otherwise.”
Notable Holdings & Rationale
- The Sixth Circuit granted the petition for review and remanded for further proceedings.
- First, the Sixth Circuit considered the proposed PSG of “victims of domestic violence” and held that the BIA incorrectly found that it was circular. Instead, the BIA should have remanded for further review because the IJ relied on outdated precedent, ignored pertinent evidence in the record, and impeded Marta’s counsel from further developing relevant testimony. It also failed to consider the record as a whole when making its PSG determination.
- The Court also reasoned that the BIA failed to conduct a proper analysis of circularity. “Reviewing the record as a whole, the particular facts of Marta's case show that her proposed PSG was not circular because her application reflects additional immutable and narrowing characteristics separate and apart from her suffering of domestic violence.” That evidence included “that Marta's family (a) lived in a remote village in the mountains, where (b) there were no local authorities or means to protect women from domestic violence, and (c) they had no apparent ability to escape their abuser, who was allegedly associated with gangs, while remaining in Guatemala.” The majority opinion concluded by noting that “although we do not make the cognizability determination here, it is worth noting that our court has previously found proposed PSGs with records very similar to Marta's cognizable.”
- In addition, the Court held that the BIA erred by concluding that Marta had waived the issue of the cognizability of her second proposed PSG of “family members of victims of domestic violence.” It remanded so that the BIA could consider the issue.
- The majority also held that substantial evidence did not support the BIA’s conclusion that Marta failed to show that the government was unable or unwilling to protect her family. It noted that “we have previously remanded and ordered the Board to reassess the sufficiency of the state-action element where an applicant took much less initiative than Marta by ‘not [even] report[ing] the incidents regarding her abuse to the police department.’” Here, the testimonial evidence and country conditions evidence showed that Marta could not reasonably expect the assistance of the government in controlling her persecutor’s actions.
- Finally, the majority held that the BIA and IJ erred in denying the claim for withholding of removal, reasoning that the IJ “failed to conduct the persecution analysis with respect to the withholding claim,” relief on the wrong immigration statute, and applied an incorrect nexus standard to deny the claim.
- The opinion includes a dissent that disagrees with the reasoning and would have denied the petition for relief.