Read case summaries of select BIA, Fifth, and Second Circuit Court of Appeals cases issued this last month.
Fifth Circuit Court of Appeals
Francois v. Garland [asylum; competency; due process]
Francois v. Garland - No. 20-61134 (5th Cir. Oct. 24, 2024)
Facts & Background
- Petitioner herein is Alex Francois, a citizen of Haiti, who has lived and worked in the United States for most of his life--as he left Haiti for the United States in 1979 and is now in his mid-sixties. Francois suffers from multiple mental illnesses, including bipolar disorder and schizophrenia, and the symptoms of his mental illness impact his day-to-day life. Since 2011, Francois had been hospitalized for mental health treatment at least five times and had multiple encounters with law enforcement due to incidents involving his mental illness.
- In July 2017, Francois was arrested for trespassing in Texas, later found incompetent to stand trial, then admitted to the Austin State hospital for three months of psychiatric treatment, and afterwards transferred to U.S. Immigration and Customs Enforcement's (ICE) custody. Then, the Department of Homeland Security (DHS) served Francois with a Notice to Appear (NTA), charging Francois as removable. Francois appeared pro se before the immigration judge (IJ), admitted to the allegations in the NTA, and conceded to the charge of removability. Later, Francois obtained counsel and requested a competency hearing, during which the IJ determined that Francois was mentally incompetent. Francois then filed an I-589 for asylum, withholding of removal (WOR), and protection under the Convention Against Torture (CAT). Francois sought protection based on membership in the particular social group (PSG) "Haitian nationals with chronic, serious mental illness who exhibit perceptible symptoms of mental illness that will require ongoing psychiatric treatment."
- In April 2019, IJ denied Francois's application for asylum on a discretionary basis and also denied the CAT claim, but the IJ granted the claim for WOR. The government, in turn, appealed the grant of WOR to the Board of Immigration Appeals (BIA), and the BIA issued a decision sua sponte and remanded to the IJ for additional factfinding to "specify whether the respondent will be singled out individually for persecution and whether there is a pattern or practice of persecution of similarly situated individuals on account of a protected ground" and gave further instructions that, "if the respondent will be singled out for persecution, the Immigration Judge should make specific factual findings regarding any harm the respondent is likely to suffer in Haiti and whether such harm would be on account of his membership in his proposed particular social group.”
- On remand, the only issue was whether Francois was entitled to WOR or relief under the CAT. The IJ issued a new decision denying the claims--reversing the decision regarding WOR and finding that Francois had not proven that he would be targeted or persecuted in Haiti based on his mental illness. Regarding CAT, the IJ determined that Francois had not proven that Haiti's prison and mental health systems tortured deportees or individuals suffering from mental illness. The IJ found that Francois failed to show it was more likely than not that he would be tortured in Haiti because the expert evidence spoke to possibilities of the future.
- Francois appealed to the BIA, and the BIA dismissed the appeal since they did not find a clear error in the IJ's decision. Then, Francois petitioned the Fifth Circuit and moved the Fifth Circuit for stay of removal, and the Fifth Circuit denied the motion. Francois then requested an emergency stay from the Supreme Court, which was denied. Francois then filed an unsuccessful motion to reconsider before the BIA and then filed another petition for review with the Fifth Circuit, which is before the Fifth Circuit in this proceeding.
- The issue on review before the Fifth Circuit is whether the BIA deprived Francois of due process in remanding for further factfinding during its initial review of the IJ’s April 2019 order, which had granted WOR to Francois. Francois argued before the Fifth Circuit that the BIA evaded its clear error standard of review by remanding to the IJ for factual findings that the IJ had already made—which is in clear violation of BIA regulations.
Notable Holdings & Rationale
- The Fifth Circuit granted both of Francois's petitions for review, vacated the BIA's orders, and remanded to the BIA to review the IJ's order under the proper standards of review. The BIA’s decision resulted in the IJ reversing course and denying relief, which shows that the violation affected the outcome of the proceedings. Francois demonstrated a denial of due process on account of the BIA avoiding its clear error review.
Sustaita-Cordova v. Garland [NTA; cancellation of removal; administrative closure]
Sustaita-Cordova v. Garland - No. 23-60095 (5th Cir. Oct. 31, 2024)
Facts & Background
- Petitioner herein is Luis Alberto Sustaita-Cordova, a native and citizen of Mexico, who was charged with removability in 2017 and later applied for cancellation of removal, based on hardship for his youngest child, his daughter Judith.
- During a hearing in October 2017, Sustaita-Cordova stated that he may be eligible for U nonimmigrant status (“U visa”) and later filed to administratively close his proceedings with the immigration court or to alternatively continue his proceedings based on his pending U visa application. Sustaita-Cordova and Judith testified in support of the application for cancellation of removal.
- In 2018, Sustaita-Cordova had his removal hearing before the IJ, during which the IJ ordered him removed--denying cancellation of removal and voluntary departure. The IJ did not address the motion for administrative closure. The IJ found that Sustaita-Cordova met the physical-presence requirement for cancellation but that he failed to establish the requisite good moral character and the requisite hardship to a qualifying relative. In denying voluntary departure, the IJ applied the prior moral character findings.
- Sustaita-Cordova appealed to the BIA--challenging the IJ’s no-good-moral-character and no-hardship findings. He also emphasized that the IJ did not rule on his motion for administrative closure, and argued that administrative closure—or, alternatively, remand for a continuance—is still warranted, while he awaits his U visa adjudication. He also argued to the BIA that his motion to the IJ demonstrated his eligibility for a waiver of inadmissibility; that the IJ erred by not considering his eligibility; and that remand was thus appropriate for the IJ to consider his waiver eligibility in the first instance. Ultimately, the BIA dismissed Sustaita-Cordova’s appeal and denied his request for administrative closure.
- In February 2023, Sustaita-Cordova petitioned the Fifth Circuit for review. The four issues before the Fifth Circuit were: (1) the agency erred in determining him ineligible for cancellation of removal because he had not made the required exceptional-hardship and moral-character showings; (2) the BIA abused its discretion by denying his motion for administrative closure or a continuance; (3) the BIA abused its discretion by ignoring his request for a remand to pursue a waiver of inadmissibility before the IJ; and (4) the BIA erred in rejecting his contention that his removal proceedings should be terminated due to a deficient NTA.
Notable Holdings & Rationale
- The Fifth Circuit denied the petition for review. The Fifth Circuit concluded that two of Sustaita-Cordova’s arguments or issues on appeal—his claims that the BIA abused its discretion by (1) denying his motion for administrative closure or a continuance and (2) ignoring his request for a remand to pursue a waiver of inadmissibility before the IJ—have been mooted because USCIS denied his application for a U visa and for a waiver of inadmissibility. Thus, the Fifth Circuit cannot grant him any effectual relief on those issues. Regarding the cancellation of removal, the Fifth Circuit does not take issue or find any flaws in the agency’s moral-character analysis that is necessary for cancellation of removal. Lastly, regarding the NTA, the Fifth Circuit found that Sustaita-Cordova failed to raise any objection to the NTA before proceedings before the IJ ended, so therefore he forfeited any later claim-processing challenge to the NTA.
Ninth Circuit Court of Appeals
Montejo-Gonzalez v. Garland [motions to reopen, in absentia removal orders, exceptional circumstances standard]
Montejo-Gonzalez v. Garland, No. 21-304 (9th Cir. Oct. 17, 2024)
Facts & Background
- Montejo-Gonzalez and her two young children applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). They were placed in removal proceedings and ended up being late to their initial hearing after encountering two major car accidents on the drive to the courthouse. The IJ ordered them removed in absentia. Appearing pro se, they promptly moved to reopen their case based on exceptional circumstances. In addition to the car accidents, they presented evidence that the children were eligible to seek U.S. citizenship through their father and that they had left home early to drive the courthouse and immediately tried to get the clerk to get have their case heard upon arriving at the courthouse. The IJ denied the motion to reopen and the BIA affirmed.
Notable Holdings & Rationale
- A divided panel of the Ninth Circuit granted the petition and remanded to the BIA, concluding that the facts of this case amounted to exceptional circumstances that warranted reopening of the in absentia removal order. The Ninth Circuit explained that “exceptional circumstances” requires looking at the totality of the circumstances, which “is necessarily fact intensive and case specific.” Citing prior Ninth Circuit decisions, the majority opinion explained that the IJ and BIA “must consider whether ‘petitioners did all they reasonably could to have their cases heard promptly,’ Lo v. Ashcroft, 341 F.3d 934, 938 (9th Cir. 2003), and whether ‘through no fault of their own, [petitioners] have never had their day in court to present their claims,’ Romani v. I.N.S., 146 F.3d 737, 739 (9th Cir. 1998).” The factors to consider in this analysis include the petitioner’s motive for failing to appear (such as avoiding a removal order on the merits) and whether the in absentia removal order would cause unconscionable results. The majority disagreed with the dissent that this was a new test, explaining that Ninth Circuit precedent supported a totality-of-the-circumstances analysis.
- The Ninth Circuit also cited to decisions from the First and Sixth Circuits—Murillo-Robles v. Lynch, 839 F.3d 88, 91 (1st Cir. 2016) and A. C. A. v. Rosen, 985 F.3d 499, 504 (6th Cir. 2021)—to support that the court should take a totality-of-the-circumstances approach to determining whether exceptional circumstances warrant reopening.
- Applying this legal standard to the facts of this case, the panel concluded that Montejo-Gonzalez had done everything she could to get to the courthouse on time by leaving early and that the two major car accidents she encountered were beyond her control. The dissent and BIA relied on Arredondo v. Lynch, 824 F.3d 801 (9th Cir. 2016) to argue that experiencing a car accident did not support reopening. However, the majority conducted a more fact intensive analysis and distinguished Arredondo, explaining how in that case the respondent did not call their attorney or immediately go to the courthouse after the accident. Here, Montejo-Gonzalez arrived as soon as she could and immediately tried to get the clerk to help with having her case heard. In addition, the facts supported that she did not have any ulterior motive for missing the hearing and the in absentia removal order in Montejo-Gonzalez’s case would lead to unconscionable results because the children were eligible for derivative citizenship through their father.
Corpeno-Romero v. Garland [asylum, past persecution, nexus, family-based claims, harm suffered as a child, threats rising to the level of persecution, emotional/psychological harm]
Corpeno-Romero v. Garland, No. 23-576 (9th Cir. Oct. 23, 2024)
Facts & Background
- Corpeno-Romero and her son, Javi, fled El Salvador and applied for asylum, withholding of removal and protection under the Convention Against Torture based on their status as immediate family members of Carlos Rodolfo Cornejo-Montano, the father who was murdered by the gangs.
- In 2010, the gangs murdered Corpeno-Romero’s husband after he refused to make extortion payments, and she and her sister went to the police station to identify the men who shot him. They were threatened by the gangs for cooperating with the police and fled their hometown and moved to a different part of El Salvador. In 2018, the murders were released from prison. Around the same time, members of the same gang (MS-18) began to threaten Javi, who was 14 years old at the time. Corpeno-Romero ultimately fled to the United states because after multiple incidents involving gang members trying to recruit Javi, making death threats, and warning that they knew everything about their family and what happened to his father.
- As evidence at the merits hearing, Corpeno-Romero testified and the IJ found her to be credible. They also submitted a declaration from Javi and an expert affidavit from two licensed clinical social workers who conducted a mental health evaluation of Javi and found that he had PTSD based on his experiences in El Salvador and the emotional harm and trauma he suffered.
- The IJ in an oral decision denied the applications for relief, finding that they did not establish past persecution or a well-founded fear of future persecution in El Salvador on account of a protected ground. The BIA affirmed, agreeing with the IJ that their experiences in El Salvador did not rise to the level of past persecution .The BIA also assumed that the particular social group comprised of the “family of Carlos Rodolfo Cornejo Montano” was cognizable but found that this familial status was not “one central reason” or even “a reason” for the alleged persecution.
Notable Holdings & Rationale
- The Ninth Circuit disagreed with IJ and BIA, finding that Corpeno-Romero and her child Javi had shown that they suffered harm rising to the level of persecution and that such harm was on account of a protected ground. A divided panel granted in part and denied in part the petition for review and remanded to the BIA for consideration of the final elements that were not reached in the underlying opinion (whether the persecution was committed by the government or by forces that the government was unable or unwilling to control or whether petitioners have otherwise established a well-founded fear of future persecution). The reasoning of the Ninth Circuit includes analysis of when threats can rise to the level of past persecution, the impact of emotional harm, and how a child’s age should be taken into account when assessing the case.
- Past Persecution & Death Threats: The Ninth Circuit found that the IJ and BIA erred by concluding that the evidence did not amount to past persecution. The lower courts characterized the issue as being mere threats without any incidents of violence. However, the Ninth Circuit stated that “not all threats are hollow” and “[o]ur caselaw does not require that a petitioner wait for the threat of violence to materialize before seeking the protections of asylum law.” Rather, the Ninth Circuit has “long recognized that ‘credible death threats alone can constitute persecution,’ and when assessing threats will consider ‘whether the group making the threat has the will or the ability to carry it out’” (citations omitted). Here, Corpeno-Romero presented evidence of violent gang members locating and identifying her son, following him home from school, saying they knew everything about this family and calling him the “faggot son” of his murdered father, and surrounding the family members and threatening to kill them. Moreover, one of the men who threatened Javi’s life was the same person who had been convicted of murdering his father. The Ninth Circuit concluded that this evidence showed the “threat was not idle.”
- Past Persecution & Emotional/Psychological Harm: In addition, in the Ninth Circuit, “death threats alone may rise to the level of past persecution ‘when the threats are so menacing as to cause significant actual suffering or harm.’” Here, there was evidence from expert clinicians who conducted a mental health evaluation of Javi and found that they suffered PTSD because of the threats and experiences in El Salvador, and that this rose to the level of significant actual suffering or harm. The majority opinion explained that, “[w]hile the dissent suggests that this court breaks new ground by focusing on evidence of Javi’s PTSD, our cases have long recognized that emotional and psychological harm may constitute evidence of past persecution.” “Because emotional trauma is a form of persecution, evidence in support of such claim may be adduced, as was here, through witness testimony of the traumatic events in question as well as expert testimony of its psychological after-effects.’
- Past Persecution & Age: The Ninth Circuit also reversed on the past persecution in part because “the agency failed to consider Javi’s experience from the perspective of his relatively young age.” It explained that age has been called “a ‘critical’ factor in assessing persecution for teenagers older than Javi” and that “the agency commits legal error when it fails to ‘measure the degree of their injuries by their impact on children of their ages’" (citations omitted).
- Based on this analysis, the Ninth Circuit concluded that “[i]n light of the specific and menacing nature of M-18’s death threat against Javi by men involved in the murder of his father, the violent near-confrontation at Javi and Candelaria’s home by armed men soon thereafter, and the significant emotional trauma that Javi experienced as a fourteen-year-old and continues to endure, we conclude that the record compels a finding of past persecution.”
- Nexus: The Ninth Circuit also reversed the IJ and BIA on the issue of nexus, finding that the BIA “erred by treating M-18’s two alleged motives—targeting Javi to increase the size of M-18 and targeting him because of his status as Carlos’s son—as mutually exclusive.” The Ninth Circuit explained that there was sufficient evidence establishing that the gang members were motivated at least in part by Corpeno-Romero and her son’s relationship to the murdered father. The evidence included testimony that the gang members held a grudge against the family members because of their perceived cooperation with police after his murder, that they investigated the family member’s whereabouts, made comments about their family relationship in the threats, and the persecution began after the murderers were released from prison. While there was also evidence in the record that the gangs wanted to recruit Javi to grow their numbers, that did not negate that their family relationship was part of the motivation. The Ninth Circuit explained that there can be “more than one central reason, and he need not prove which reason was dominant.”
Supreme Court
Bouarfa v. Mayorkas [visa revocation; nondiscretionary criteria]
Bouarfa v. Mayorkas, Case No. 23-583
Facts & Background
- Petitioner Amina Bouarfa’s application to have her husband, Ala’a Hamayel, classified as her immediate relative was approved. But two years later, the Secretary revoked that approval on the ground that it should have denied the application in the first place under 8 U.S.C. § 1154(c)’s “sham-marriage bar.”
- Issue: Whether a citizen or lawful permanent resident can obtain judicial review when DHS revokes approval of an immigrant visa petition on the basis of nondiscretionary criteria.
- This case was appealed from the Eleventh Circuit Court of Appeals.
- Oral arguments were held on October 15, 2024.