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In-Depth Review of Recent BIA and Circuit Decisions. Greg Romanovsky, Esq., DL , Boston, MA Jeff Joseph, Esq., Denver, CO Trina Realmuto , Esq., Boston, MA . Why Do I Have to Know the Law in Other Circuits?.

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in depth review of recent bia and circuit decisions

In-Depth Review of Recent BIA and Circuit Decisions

Greg Romanovsky, Esq., DL , Boston, MA

Jeff Joseph, Esq., Denver, CO

Trina Realmuto, Esq., Boston, MA

why do i have to know the law in other circuits
Why Do I Have to Know the Law in Other Circuits?
  • Preserve issues that may go to the Supreme Court and reverse adverse precedent in your Circuit
  • Effective advocacy for defending your client and for filing for benefits, advising regarding travel and other matters
  • It is simply the nature of immigration law
resources and sources of finding case law
Resources and Sources of Finding Case Law
  • EOIR Virtual Law Library: You can subscribe to announcements of new decisions
  • Immigration Law Advisor: monthly bulletin of the Attorney Advisors to Immigration Court and BIA
  • (Benders Immigration Daily)
  • Federal Court Litigation Section and Other Listserves
  • AILA InfoNet
  • First Circuit Opinion Feeder,
  • Tagging Cases in PACER
the changing concept of admission
The Changing Concept of Admission
    • Matter of Arrabally and Yerrabelly, 25 I & N Dec. 771 (BIA 2012).
    • Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013)
      • Distinguished Serrano v. U.S. Atty. Gen., 655 F.3d 1260 (11th Cir. 2011)
      • References U.S. V. Orellana, 405 F.3d 360 (5th Cir. 2005)
    • Matter of V-X-, 26 I&N Dec. 147 (BIA 2013)
    • Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013)
      • Distinguishes Matter of Quinlantan, 25 I&N Dec. 285 (BIA 2010)
      • Cites Reid v. INS, 420 U.S. 619 (1975)
departure bar regulations
Departure Bar Regulations
  • The Second, Third, Fourth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits have all found the departure bar unlawful with respect to statutory motions. Luna v. Holder, 637 F.3d 85 (2d Cir. 2011); PrestolEspinal v. AG of the United States, 653 F.3d 213 (3d Cir. 2011); William v. Gonzales, 499 F.3d 329 (4th Cir. 2007); Carias v. Holder, 697 F.3d 257 (5th Cir. 2012); Pruidze v. Holder, 632 F.3d 234 (6th Cir. 2011); Marin-Rodriguez v. Holder, 612 F.3d 591 (7th Cir. 2010); Reyes-Torres v. Holder, 645 F.3d 1073 (9th Cir. 2011); Contreras-Bocanegra v. Holder, 678 F.3d 811 (10th Cir. 2012) (en banc); Jian Le Lin v. United States AG, 681 F.3d 1236 (11th Cir. 2012).
  • 1st Circuit just joined! Perez Santana v. Holder, 731 F.3d 50 (1st Cir. 2013)
equitable tolling
Equitable Tolling
  • No published BIA decision – BIA follows circuit law.
  • Most circuits recognize equitable tolling. Iavorskiv. INS, 232 F.3d 124 (2d Cir. 2000); Borges v. Gonzales, 402 F.3d 398 (3d Cir. 2005); Kuusk v. Holder, 732 F.3d 302 (4th Cir. 2013); Mezo v. Holder, 615 F.3d 616 (6th Cir. 2010); Pervaiz v. Gonzales, 405 F.3d 488 (7th Cir. 2005); Ortega-Marroquin, 640 F.3d 814; Socop-Gonzalez v. INS, 272 F.3d 1176 (9th Cir. 2001) (en banc); Riley v. INS, 310 F.3d 1253 (10th Cir. 2002); Avila-Santoyo v. Att’y Gen., 713 F.3d 1357 (11th Cir. 2013) (en banc).
  • The First Circuit has yet to rule on the issue, though it recently found it “notabl[e]” that “every circuit that has addressed the issue thus far has held that equitable tolling applies to . . . limits to filing motions to reopen.” Bolieiro v. Holder, 731 F.3d 32, 2013 U.S. 39 n.7 (1st Cir. 2013).
  • Please contact Trina Realmuto or Beth Werlin if you have an ET case!
challenging prior removability concessions
Challenging Prior Removability Concessions
  • Hanna v. Holder, No. 12-4272, -- F.3d --, 2014 WL 184500 (6th Cir. Jan. 17, 2014)
    • 2 types of egregious circumstances justify relief from a prejudicial admission/concession

(1) admissions that “were the result of unreasonable professional judgment”; and

(2) where upholding the admission would “produce[ ] an unjust result”

stop time rule in cancellation of removal cases
“Stop-Time” Rule in Cancellation of Removal Cases
  • Soto v. Holder, Case No. 13-1520 (1st Cir. Dec. 3, 2013) – bad law!
    • Missed the argument raised in Matter of Ordaz-Gonzalez (currently pending before BIA, AILA amicus brief submitted). Not a proper NTA unless it has the date and time of appearance (see INA 239(a)(1)(G)(i)). Therefore, no proper service until hearing notice is received.
  • Matter of Camarillo, 25 I&N Dec. 644 (BIA 2011) is in conflict with Garcia-Ramirez v. Gonzales, 423 F.3d 935, 937 n.3 (9th Cir. 2005); Guamanrrigra v. Holder, 670 F.3d 404, 409 (2d Cir. 2012); and Dababneh v. Gonzales, 471 F.3d 806, 810 (7th Cir. 2010).
particular social group social visibility and gang cases
Particular Social Group, Social Visibility and Gang Cases
  • Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014)
    • The respondent did not establish that “former members of the Mara 18 gang in El Salvador who have renounced their gang membership” constitute a “particular social group” or that there is a nexus between the harm he fears and his status as a former gang member.
  • Martinez v. Holder, 2014 WL 243273 (4th Cir. Feb. 2014)
    • Cited favorably: Ramos v. Holder, 589 F.3d 426 (7th Cir. 2005) and Urbina-Mejia v. Holder, 597 F.3d 360 (6th Cir. 2010)
    • Creates a split with 1st Circuit in Cantarero v. Holder, 734 F.3d 82 (1st Cir. 2013) and Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007)
particular social group social visibility and gang cases1
Particular Social Group, Social Visibility and Gang Cases
  • Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014)
    • (a) In order to clarify that the “social visibility” element required to establish a cognizable “particular social group” does not mean literal or “ocular” visibility, that element is renamed as “social distinction.”
    • (b) An applicant for asylum or withholding of removal seeking relief based on “membership in a particular social group” must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.
    • (c) Whether a social group is recognized for asylum purposes is determined by the perception of the society in question, rather than by the perception of the persecutor.
standing in employment based immigration cases
Standing in Employment-Based Immigration Cases
  • Patel v. USCIS, 732 F.3d 633 (6th Cir. 2013)
prolonged detention
Prolonged Detention
  • Reid v. Donelan, No. 13-cv-30125-MAP, –-F. Supp. 2d--, (D. Mass. Jan. 17, 2004).

Class Definition: “All individuals who are or will be detained within the Commonwealth of Massachusetts pursuant to 8 U.S.C. § 1226(c) for over six months and have not been afforded an individualized bond hearing.”

matter of rojas when released cases
Matter of Rojas“When Released” Cases
  • Government aggressively litigating this issue in several circuits, trying to build on Hosh v. Lucero, 680 F.3d 375 (4th Cir. 2012) and Sylvain v. Attorney Gen., 714 F.3d 150 (3d Cir. 2013).
  • Two D. Mass. victories on appeal in 1st Circuit:
    • Castaneda v. Souza (No. 13-1994)
    • Gordon v. Holder (No. 13-2509)
detainer litigation
Detainer Litigation
  • Morales v. Chadbourne, et al., No. 12-301-M (D. R.I. Feb. 12. 2014), held that:
    • Detainers are requests (not orders), and that state and local ICE officials may be held liable for enforcing them in violation of the Constitution. 
    • Jailing someone based on nothing more than an immigration detainer, without probable cause to believe the person is a non-citizen subject to removal, can violate the 4th Amendment and the EqualProtection Clause.