Read case summaries of select BIA, Fifth, and Second Circuit Court of Appeals cases issued this last month.
Board of Immigration Appeals (BIA)
Matter of R-T-P [NTA]
Matter of R-T-P, 28 I&N Dec. 828 (BIA 2024)
Holding:
A proper remedy for a violation of the claim-processing rule at section 239(a)(1)(G)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a)(1)(G)(i) (2018), should (1) result in a notice to appear as a single document; (2) be consistent with the rules governing the procedures used for remedy; (3) help to promote the underlying purpose of claim‑processing rules generally and the rule that the notice to appear include the time and place of the hearing in particular; and (4) not prejudice the respondent.
Written amendments made by an Immigration Judge, upon the motion of the Department of Homeland Security, to the time and place of the hearing on the notice to appear may satisfy the requirements for a proper remedy to a noncompliant notice to appear.
Matter of THAKKER [crimmigration; CIMT]
Matter of THAKKER, 28 I&N Dec. 843 (BIA 2024)
Holding:
(1) The assumption in Matter of Jurado that a retail theft offense involves an intent to permanently deprive a victim of their property is inconsistent with the categorical approach as currently articulated by the Supreme Court. Matter of Jurado, 24 I&N Dec. 29 (BIA 2006), aff'd sub. nom. Jurado-Delgado v. Att'y Gen. of U.S., 498 F. App'x 107 (3d Cir. 2009), overruled in part.
(2) The respondent's convictions for retail theft under section 3929(a)(1) of title 18 of the Pennsylvania Consolidated Statutes, all of which predate the Board's decision in Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016), are categorically not for crimes involving moral turpitude because the statute does not require an intent to permanently deprive the victim of property.
Fifth Circuit Court of Appeals
Lopez Orellana v. Garland [expedited removal; FARO; NOI]
Lopez Orellana v. Garland, No. 23-60248 (5th Cir. Sept. 18, 2024)
Facts & Background
- In this case, the petitioner argued that she was improperly placed in expedited removal proceedings and then removed without an opportunity to challenge the legal basis of that removal order.
- The petitioner herein, Astrid Dariana Lopez Orellana ("Lopez"), is a citizen of Honduras. She and her mother entered the United States in 2019 when Lopez was age 15, fleeing Honduras due to gang threats.
- In 2021, Lopez was arrested and put in pretrial custody until April 2022, when she pleaded guilty. The same day, she was sentenced with credit for time served, and she was on probation when she was then detained by Immigration and Customs Enforcement (“ICE”). ICE took her into their custody in December 2022.
- The issue presented before the Fifth Circuit is whether the Louisiana accessory-after-the-fact statute, LA. REV. STAT. § 14:25, is a categorical match for the generic federal offense of obstruction of justice and is therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(S), permitting expedited removal of a noncitizen.
Notable Holdings & Rationale
- Because the generic federal offense requires specific intent, and the Louisiana Supreme Court has explicitly maintained that the state statute requires only general intent, the Fifth Circuit found that the Louisiana statute is not a categorical match which would permit expedited removal. Accordingly, The Fifth Circuit GRANTED Lopez’s petition for review, VACATED the final order of removal, and REMANDED to DHS for further proceedings in accordance with this opinion.
Second Circuit Court of Appeals
Castellanos-Ventura v. Garland [asylum; harm suffered as a child; reporting to authorities; government action; publishing federal appellate decisions]
Castellanos-Ventura v. Garland, No. 21-6293-ag (2d Cir. Sept. 13, 2024) (per curiam)
Facts & Background
- Citizen of Honduras applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) based on her membership in a particular social group (PSG) of “Honduran women” and abuse she suffered as a child, including physical and sexual abuse by her mother, stepfather, grandfather, and uncle from the age of 7 to 17.
- The IJ and BIA assumed the PSG was cognizable and that her abusers targeted her on account of of her membership in that group. They denied relief because they held that Castellanos-Ventura had failed to show that the Honduran government was “unable or unwilling to control” her persecutors. The IJ reasoned that she had not reported the abuse to the police and that there was evidence of the Honduran government working to protect victims of rape and domestic violence.
Notable Holdings & Rationale
- The Second Circuit disagreed with the BIA and reversed because they had failed to consider “whether it would have been futile for an abused child to seek protection from the Honduran government” and the “significant record evidence that the Honduran government was unable to protect children or women from intrafamilial and criminal violence.”
- Citing to Matter of C-G-T-, 28 I&N. Dec. 740 (BIA 2023), the Second Circuit reasoned that the BIA “reasonably relied in part on Castellanos-Ventura’s failure to report,” but it erred because “it failed to consider whether it would have been ‘futile or dangerous for an abused child,’ as Castellanos-Ventura was during much of her abuse, ‘to seek protection from the authorities.’” It further noted that the BIA has already recognized that children may be unable to contact authorities to report abuse.
- The Second Circuit also found that the BIA erred by relying on only one page of the State Department’s Human Rights Report addressing rape and domestic violence against women, “without acknowledging or evaluating conflicting evidence.” Moreover, “the agency failed to mention or evaluate any evidence related to the state’s ability to protect children who are subject to intrafamilial violence and abuse.” The Second Circuit pointed to other evidence in the record showing that there was a lack of protection by the Honduran government.
- This case was also discussed in episode 229 of the “Immigration Review” podcast hosted by Kevin A. Gregg, a partner at the law firm Kurzban Kurzban Tetzeli & Pratt P.A., and that discussion notes that the Second Circuit granted a request to publish this decision in the federal register so that it would have precedential effect.