Read case summaries of select BIA, First, Third, Fifth Circuit Court of Appeals, and Supreme Court cases issued this last month.
Board of Immigration Appeals (BIA)
Matter of DOR [crimmigration]
Matter of DOR, 29 I&N Dec. 20 (BIA Mar. 18, 2025).
Holding:
The time of conviction is the relevant point for determining whether a respondent’s State conviction is for a controlled substance offense under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2018), not the time the respondent’s removability is adjudicated in immigration proceedings.
Matter of C-A-R-R- [asylum]
Matter of C-A-R-R-, 29 I&N Dec. 13 (BIA Mar. 17, 2025).
Holding:
Withholding of Removal (Form I-589) on the merits if it is incomplete, and incomplete applications may be considered waived or abandoned, particularly where an opportunity to cure has been offered.
(2) Because declarations are not a constituent part of an asylum application, a Form I-589 is not incomplete, and an Immigration Judge may not deem it abandoned, solely because the respondent did not submit a declaration. Matter of Interiano-Rosa, 25 I&N Dec. 264 (BIA 2010), reaffirmed.
First Circuit Court of Appeals
Alvarez Mendoza v. Bondi [social distinction, withholding of removal, continuances]
Alvarez Mendoza v. Bondi, Nos. 24-1112, 24-1260 (1st Cir. Mar. 31, 2025).
Facts & Background
- A citizen of El Salvador challenged the BIA's denials of his applications of withholding of removal and protections under the Conventions Against Torture (CAT). Mr. Alvarez Mendoza sought relief from removal based on his fear of returning to El Salvador and alleged that he would be persecuted in El Salvador on account of, among other things, his membership in a legally cognizable particular social group (PSG) defined as “victims of gangs who give statements to police in pending criminal proceedings.”
- His evidence of past persecution included being stabbed and severely wounded by a member of the MS-13 gang in Massachusetts, who was arrested then released on bond and proceeded to confront and threaten to kill him. The assailant was subsequently deported and is believed to be in El Salvador.
- The IJ initially found that the PSG was not cognizable because it lacked particularity and social distinction. The BIA vacated this decision on appeal and remanded for further factual findings. On remand, the IJ found again that the PSG was not cognizable and emphasized a lack of evidence explaining how members of Salvadoran society would identify him as a member of the group especially given that the police cooperation against the gang member occurred in the United States. The BIA affirmed this decision on the grounds of a lack of social distinction.
Notable Holdings & Rationale
- Mr. Alvarez Mendoza raised two primary arguments on appeal. First, that the BIA and IJ erred by improperly applying an “ocular visibility” standard in concluding that the proposed PSG was not socially distinct. Second, that the BIA "prejudicially misdescribed the scope of his proposed PSG while conducting its social distinction analysis."
- The First Circuit granted the petition for review and remanded for further proceedings. In doing so, it reiterated the proper standard for social visibility and that there is no requirement of ocular visibility. It ultimately declined to rule on whether the second argument raised by Mr. Alvarez Mendoza was also grounds for removal.
- In remanding the case, the First Circuit further held that Mr. Alvarez Mendoza could raise before the IJ or BIA a motion for a continuance or an administrative closure of proceedings while USCIS adjudicates his pending petition for a U visa.
Third Circuit Court of Appeals
Wilkinson v. Att'y Gen. U.S. [cancellation of removal; standard of review; discretionary determinations]
Wilkinson v. Att'y Gen. U.S., 131 F.4th 134 (3d Cir. Mar. 11, 2025).
Facts & Background
- Mr. Wilkinson fled the Republic of Trinidad after an encounter with the police and entered the United States on a tourist visa in March 2003. He was placed in removal proceedings in 2019 after an encounter with law enforcement and sought cancellation of removal based on the hardship to his son who was born in the United States and lived with his mother but had regular contact with Mr. Wilkinson and began acting out after he was detained by immigration authorities.
- The IJ concluded that the son would not suffer exceptional and extremely unusual hardship, and thus denied relief. The BIA affirmed without opinion. The Third Circuit initially declined to review the IJ's denial on appeal because they concluded it was a non-reviewable discretionary decision. The Supreme Court reversed and vacated that decision.
Notable Holdings & Rationale
- The Third Circuit first needed to determine what standard of review to apply. In remanding for further proceedings, the Supreme Court clarified that the IJ's decision was a mixed question of fact and law and that the federal appellate court must apply a deferential standard, without specifying exactly which one. The Third Circuit noted that other circuit courts have disagreed on the appropriate standard and concluded as an issue of first impression that "the substantial-evidence standard governs review of a hardship determination in a cancellation-of-removal proceeding." The court rejected Mr. Wilkinson's argument that the abuse of discretion standard should apply and conducted an extensive analysis of the INA and caselaw in other contexts in reaching the decision about what standard to apply.
- Under the substantial evidence standard, the court "will uphold the IJ’s determination unless any reasonable adjudicator would be compelled to conclude to the contrary.” "While this does not mean that the consequences of deportation must be 'unconscionable,' it does limit relief to 'truly exceptional' situations." (footnotes omitted) Applying that standard here, the Third Circuit found that substantial evidence supports the IJ's determination and denied the petition for review.
Fifth Circuit Court of Appeals
Ayala Chapa v. Bondi [Santos-Zacaria; ultra vires; cancellation of removal; temporary Appellate Immigration Judges]
Ayala Chapa v. Bondi, No. 21-60039 (5th Cir. Mar. 24, 2025).
Facts & Background
- This case came back to the Fifth Circuit on remand from the Supreme Court. The Fifth Circuit had previously dismissed Mr. Ayala Chapa's petition for review for lack of jurisdiction [see Ayala Chapa v. Garland, 60 F.4th 901, 903 (5th Cir. 2023) (“Ayala Chapa I”)], but the Supreme Court's ruling in Santos-Zacaria v. Garland, 143 S. Ct. 1103 (2023) abrogated the Fifth Circuit's longstanding precedent that fundamentally shapes the jurisdictional ruling of Mr. Ayala Chapa's petition for review. Thus, the issue before the Fifth Circuit on review this time is whether the Board of Immigration Appeals (BIA) acted ultra vires in ordering Mr. Ayala Chapa's removal because a temporary Board member with an appointment exceeding the regulations issued the decision.
- Mr. Ayala Chapa is a native and citizen of Mexico who arrived to the United States as a minor. He engaged in some criminal activity as a juvenile and into adulthood, eventually becoming removable for a drug-related offense. The immigration judge (IJ) and BIA denied relief to Mr. Ayala Chapa, and the BIA also denied Mr. Ayala Chapa's motion to reconsider. Of note, a single temporary appellate IJ/temporary Board member who had served as a temporary IJ for longer than the applicable regulations permitted issued the BIA decisions in this case. Mr. Ayala Chapa noted that the temporary IJ issued the decisions after her term had expired.
Notable Holdings & Rationale
- The Fifth Circuit held that Mr. Ayala Chapa's claim that the BIA acted ultra vires is meritless.
- The Fifth Circuit refused to initially hear this case on review based on its circuit's rules on motions to reconsider filed with the BIA after the issuance of a removal order and exhausting administrative arguments. However, the Supreme Court's decision in Santos-Zacaria v. Garland (2023) directly impacted the Fifth Circuit's rules relating to exhaustion of administrative arguments and related jurisdictional issues, thereby bringing the case back to the Fifth Circuit.
- In finding the claim meritless, the Fifth Circuit elaborated that "ultra vires" may not be the appropriate argument in relation to the temporary appellate IJ/temporary Board member's appointment exceeding the limit set forth by the regulations. More specifically, the Fifth Circuit said it was not aware of other case holdings of an agency acting ultra vires by acting outside the scope of its own regulations. The Fifth Circuit continued that an agency may be ultra vires if they act beyond what Congress or the statute commands, but acting outside of the agency's regulations is not ultra vires. Instead, the Fifth Circuit suggested that maybe another argument—like due process—would be more appropriate.
Supreme Court
Riley v. Bondi [withholding of removal; jurisdiction]
Riley v. Bondi, Case No. 23-1270
Facts & Background
- Issues:
- (1) Whether 8 U.S.C. § 1252(b)(1)'s 30-day deadline is jurisdictional, or merely a mandatory claims-processing rule that can be waived or forfeited; and
- (2) whether a person can obtain review of the Board of Immigration Appeals' decision in a withholding-only proceeding by filing a petition within 30 days of that decision.
- Oral arguments were held on March 24, 2025.