Immigration Review

Ep. 313 - Precedential Decisions: 4/20/2026 - 04/26/2026 (anti-gang political opinion; opposition to gang recruitment; de fact government; credibility; DHS failure to appear; DACA & termination; good moral character; Matter of K)

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0:00 | 46:54

Lopez Martinez v. Blanche, No. 25-1225 (1st Cir. Apr. 23, 2026)

  • anti-gang political opinion; opposition to gang recruitment; imputed political opinion; quasi government; fact-intensive analysis; religion; ignoring protected ground; nexus

 


Matter of D-G-E-A- & N-G-G-E-, 29 I&N Dec. 570 (BIA 2026)

 


Matter of R-A-U-, 29 I&N Dec. 582 (BIA 2026)

  • credibility; stowaway; inconsistent affidavits; firm resettlement; asylum application in Germany; bisexual; Morocco

 


Matter of E-N-N-, 29 I&N Dec. 586 (BIA 2026)

  • credibility; inconsistencies in medical documents; Anglophone in Cameroon; pattern or practice of persecution with family members still living in country

 


Matter of Arana Castillo, et al., 29 I&N Dec. 593 (BIA 2026)

  • DHS not appearing for court; termination; obligation to take pleadings

 


Matter of Santiago-Santiago, 29 I&N Dec. 589 (BIA 2026)

  • discretionary termination; receipt of DACA; intent to file I-130; recusal; IJ bias

 


Sandoval Diaz v. Blanche, No. 24-1062 (4th Cir. Apr. 20, 2026)

  • good moral character; Matter of K inapplicable to relief and with counsel; IJ conducting direct; admission to dealing cocaine despite charges dismissed; IJ issuing subpoenas 



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SPEAKER_01

Welcome to Immigration Review, your weekly source for immigration case law updates and insights. I'm your host, Kevin A. Gregg, a partner at the Immigration, Medical Malpractice, and Business Litigation Law Firm Curzban, Kurzban, Tetzelli, and Pratt, back again to review the week's precedential immigration cases, rummaging through the decisions so you don't have to. This podcast is sponsored by Serenade Immigration. If you've been thinking about upgrading your immigration software, here's a way to explore your options and give back at the same time. Go to get.eimmigration.com forward slash IRP and request a demo, and they'll make a $50 donation to Casa Cornelia Law Center, supporting critical legal services for immigrants. That's the nonprofit I picked in San Diego. Shout out to legal director Jesse Imbriano. And if you decide to move forward, you'll get a free upgrade from the Essentials plan to complete. Again, that's get.eimmigration.com forward slash IRP or click on the special link in the show notes. This podcast is also sponsored by Gonzalez and Gonzalez Immigration Bonds. Immigration Attorneys. Once you've secured a bond, let Gonzalez and Gonzalez take it from there. In business and family-owned for 75 years, Gonzalez ⁇ Gonzalez helps other families post immigration bonds quickly, easily, and with full support every step of the way. Sure, you can post directly with DHS, but that means no guidance, no help when something goes wrong, and a four to six month wait for a refund. With Gonzalez and Gonzalez, families get hands-on help throughout the entire process and typically get refunds within one to two weeks of receiving the I-391 notice. Tired of being the point of contact for every bond question? Let Gonzalez and Gonzalez take those calls. They'll handle the paperwork, the system issues, and the family's concerns so you can focus on what really matters: winning the case and helping your clients stay in the country. You can reach Gonzalez and Gonzalez at 833-409-9200. Their fee? Just 2% plus $40, and for bonds of $10,000 or more, they can defer the fee and deduct it from the refund. Financing options? They've got those too. Give Gonzalez and Gonzalez a call, check them out at immigrationbond.com, or click on their special link in the show notes. And as always, this show does not constitute legal advice and has no bias other than to keep you up to date and to enable you, my dear colleagues, to excel in court. So, without further ado, let's start the review. Among so so many things happening to me this week, F. Evan Benz, managing attorney at the Immigration Impact Lab of Amica Center for Immigrant Rights, wrote me again. He's written me before. He's a helpful dude. Now I had seen this decision, but I wasn't sure what I was gonna do about it. Evan gave me the thing to do about it. I'm gonna read his email. Evan writes, I know you're super busy and I imagine already have a slew of crappy VIA decisions and the in the weeds circuit court decisions to get through for the pod. Little do you know, Evan, little do you know. But Evan noticed this criminal case from the Fourth Circuit. Here's what it's about, it's interesting. It involves an asylum seeker who got an inabsential removal order and then was picked up by ICE a few years later in Virginia. He then escaped ICE custody but was redetained not long after that. And the government charged him with a bunch of criminal stuff, including corruptly obstructing a pending proceeding when he escaped ICE custody to prevent evade or hamper DHS's and ICE's compliance with an order of removal issued by EIR in violation of 18 USC section 1505. And they got their conviction. But the Fourth Circuit reversed here, holding that there was no pending proceeding before EIR that he could have obstructed since the removal order was already finalized. So Evan's key takeaway is if you're gonna run from ICE, make sure you only do it if you have an administratively final removal order. Evan wants me to relay that he is totally kidding and not advocating for escaping ICE custody. And I paraphrased some of his email. Thanks for writing me, Evan. Always happy to receive your email and everybody else's. Having done that, here are six cases that I'll actually do in depth. Our first case is Tavares Martinez de Blanche, published by the First Circuit on April 17th, 2026. This case is about adjustment of status and BIA fact-finding. And let's all give a thank you to the First Circuit for giving us our only non-citizen good coming in late Friday evening.

Lopez Martinez v. Blanche, No. 25-1225 (1st Cir. Apr. 23, 2026)

SPEAKER_01

Hold your applause. Hold your applause. Alright, applause.

unknown

Mr.

SPEAKER_01

Tavares Martinez is from Venezuela and first sent to the United States in 2001. He's married to a U.S. citizen, but it happened in the Dominican Republic after he entered the US, so not sure how that went down. Also, she then returned to America afterwards, but it seems like he went to Venezuela. So something weird is going on. Oh, that happened in 2008. Then Mr. Tavares Martinez re-entered on a B-1 visa in 2015, unsure how, overstayed, and paid someone $400 for a false Social Security card and birth certificate with the name of a US citizen. So he's in a bit of trouble there. And he used those documents to get a driver's license and that identity. All the while he's actually, I guess, kind of close to his wife, despite a temporary separation in 2016. And during that separation, Massachusetts issued a complaint against him in criminal court under that false name for assault and battery against another lady, his girlfriend at the time, who he lived with at the time, during, I guess, his separation from his wife. He was found not guilty after a jury trial, but all of it's not looking great. Police figured out everything in 2017 when they pulled him over while driving. And that means he went through an entire jury trial using the false alias and didn't get caught, right? I bet he was freaking out. Police charged him with a bunch of crimes related to that alias, but they dropped them all. Then DHS came in. At which point, Mr. Tavares Martinez reunited with his still wife, who filed an I-130 petition for him, which despite it all, was approved. And you know what? An immigration judge is granted adjustment of status in court, weighed all the good against the bad, and came out positive for Mr. Tavares Martinez. I would be curious, though, how he and counsel got around a false claim to citizenship and admissibility issue. But who am I to mention such things? The BIA, for its part, was not pleased, sustaining DHS's appeal in July 2024. It weighed the adverse and positive factors different from the immigration judge. The First Circuit held that the BIA committed error. And remember, this is the circuit that describes clear error review as a standard met only when an IJ makes findings that stink like a five-week-old dead fish. More on that dead fish in a sec. The First Circuit first held it has jurisdiction to decide the case, as it must. The court may not be able to review many things about discretionary adjustment of status denials, but it can review whether the BIA applied an incorrect standard of review to overturn an IJ. So back to dead fish review. BIA can't fact-find, can't just overturn an IJ either, because it would have weighed evidence differently. Can you think of any recent BIA decisions that have done that? I know it's really hard to keep up. Believe me, I know. Now, quote, Mr. Tavares Martinez claims that during its reweighing of the equities in his case, the BIA made impermissible finding as to its intent behind using the false ID. End quote. Mensrea is, after all, a fact. And indeed, the BIA erred, quote, here, the BIA exceeded its authority by finding that petitioner used a false ID to avoid criminal prosecution, a specific intent that was not an undisputed fact in the record before the IJ, end quote. This despite the fact that it would appear to me that the entire analysis is happening within the discretionary analysis of an adjustment of status application, which the BIA does review de novo. But the facts underlying the discretionary analysis? Still clear error. None of the documents of record explicitly or implicitly supported such an important intent finding, explains the court. Quote, the record only shows that petitioner procured a false ID to obtain work, end quote. And that includes his cross-examined in-court testimony. BIA can't find a fact that DHS didn't establish but wished it had. Remember that, BIA. Indeed, quote, that Mr. Tavares Martinez had already been criminally prosecuted for assault and battery, as Jose Gonzalez, before the false ID incident, contradicts the BIA's characterization that he used his false ID to escape criminal prosecution. End quote. And wow, look at that. Our man stumbled his way into some favorable logic. As such, the BIA didn't simply pull from facts already in the record, it made them up. Quote, if the BIA felt that the IJ needed to revisit the intent behind petitioner's use of a false ID, it could have remanded the case for further fact-finding on the issue to the IJ, end quote. But you can't just overturn the IJ, order the person removed, and then threaten to fine them $998 a day. As seems the BIAs want these days. So the BIA got reversed. And so congratulations, Ivan E. Mercado for petitioner. And that is DeVaris Martinez B. Blanche. Two from the BIA this week, and I know you've heard about at least one of them. Here's the other one. Matter of AMZF. This case is about closing arguments. Incredible. Don't have a right to give one an immigration court, explains the BIA. Mr. AMZF is from Egypt and was denied asylum in immigration court. Council wanted to give a closing argument before the immigration judge denied the case. The IJ refused. The BIA says that's okay. Non citizens have many rights in rule proceedings, it explains the BIA, calling them aliens as it explains all the rights they have. One of those rights is the right to be represented by counsel and to be called an alien. But that counsel doesn't have the right on the non citizens' BF to summarize the case with the closing argument, as all attorneys do for their clients everywhere, either as a matter of law or procedural fairness in those other tribunals. Indeed, all but explains the BIA, UIR wants IJs deciding cases read ordering removal quickly. Closing arguments can get in the way. Quote, argument is an inherent part of the court hearing, as any party charging or contesting a basis for removability or applying for a leaf of protection from removal is inherently arguing the validity of their position. Depending on the unique issues of the particular case, a closing argument may be of benefit to the immigration judge, but in many cases, closing arguments are unnecessary, end quote, says the appellate body. That said, non-citizens have a right to due process in removal proceedings, and the BIA can decide whether an IJ violated a non-citizen's due process rights. But as the Seventh Circuit has apparently held, quote, declining to allow a closing argument after extensive testimony and argument is within the IJ's broad authority, end quote. As such, refusal to permit closing argument doesn't necessarily violate due process. Seems the Sixth Circuit has said that denial of an opening or closing statement may violate due process, but that apparently was set in passing, and the court did use the word may. Accordingly, here's your rule: quote, parties in immigration court have no right to give a closing argument unless they demonstrate that the denial of such argument would constitute a due process violation. To establish a due process rights violation, a respondent must prove that there was a deficiency or violation and that he was prejudiced by it. End quote. The BIA literally can't think of a time where that would be true, explains the BIA, but hey, it's possible. Not here. Unaware of the new requirement, Mr. AMZF didn't make a sufficient prejudice showing. To the BIA, he argued that his counsel would have highlighted evidence showing that indeed Christians in Egypt often can't file police reports and have their claims disregarded by the courts, and that this would have impacted the IJ's adverse credibility finding. But to the BIA, the IG's adverse credibility finding was based on inconsistency between Mr. AMZF's testimony and a police report. So this closing wouldn't have helped, says the BIA. Nor did the BIA believe other asserted closing on country conditions would have impacted the IJ. But come on, BIA, don't you want the immigration courts to at least look like courts? Why do away with closing arguments? Seems so petty. Anyway, what to do? Well, off the top of my head, if a decision like this came my way, I'd probably include with my appeal a copy of the closing argument I was going to give and show why, given the IJ's specific denial, its absence prejudiced my client. Although it does seem that Mr. AMZF's counsel tried to do something like that here. Quote, the

Matter of D-G-E-A- & N-G-G-E-, 29 I&N Dec. 570 (BIA 2026)

SPEAKER_01

respondent's appellate arguments served to demonstrate the unlikeliness that a due process violation could arise by denying closing argument in immigration court, end quote. All of this, by the way, despite the fact that the Immigration Court practice manual literally states that, quote, parties should be prepared to make a closing statement, end quote. Well, to the BIA, quote, the fact that parties should be prepared to make legal arguments does not suggest that any particular argument is legally required, end quote. So the BIA declines to make it a rule. Concluding with the merits of the asylum claim, the BIA actually did remand. Mr. AMZF, quote, fears harm from the Muslim Brotherhood extremists who targeted him in the past because he's a Coptic Christian. And the IJ made a mixed credibility decision. Seems the BIA doesn't love that, so it's remanding for further assessment of credibility. And you know what? Not without some helpful stuff for the non-citizen. There you go, BIA. I'll read the whole thing, quote. One of the aspects of the respondent's testimony that the IJ found not credible is his account of being detained for three days after Muslim Brotherhood members attacked him and his workers at a construction site for eating lunch during Ramadan. The AJ found the respondent's testimony inconsistent with the police report of the incident, which indicates that the report was filed and closed on the same day. However, the police report concludes by stating that the accused would be summoned and questioned, and that appears to be what the respondents stated happened during the three days he was detained. The respondent's detention was also corroborated by some of his workers, including one who was also detained. End quote. So the IJ should consider all that on remand. Not only that, the BIA sees a basis for the claim that Mr. AMZF was forced to give his land to the Muslim Brotherhood under duress. Might have happened based on the evidence reasons to BIA. Let's see what happens on remand. So I don't know. Seems to me that if Mr. AMZF's counsel could have made some of those arguments in closing, the IJ might have been swayed like the BIA was. Isn't that prejudice? What do I know? And what do you think, guys? You think the IJ will permit closing argument on remand? Let me know, counsel. And that is matter of AMZF. Alright, folks, the moment you've all been waiting for, but that I really didn't need. Matter of MK published by the BIA. And look, I say that this podcast has no bias at the top, and I mean that as a matter of law. I do not intentionally misconstrue or misstate these cases. And I'm not gonna do that here either. But I admit, I have strong feelings about what the US government is doing to Mahmoud Khalil. What a decision. Hats off, BIA, you've outdone yourselves. No attorney general either, as you issue such a consequential decision. The BIA has ordered Mahmoud Khalil removed in a published decision. Fourteen pages, single spaced on issues that no court has ever really tangled with, because no one thought America would get to this point. Marco Rubio and Pam Bondi said, Hold my beer. No need to use acronyms with this one, guys, right? There's only one green card holder who Marco Rubio is personally trying to remove, to my knowledge. And certainly only one with the initials MK, represented by Mark Vanderhoot and a whole awesome team. He's from Syria, but a citizen of Algeria. He's married to a U.S. citizen, and his wife had his first child while he was in immigration detention, if you recall. ICE wouldn't even let him out to be present at the birth. Such a dangerous guy.

unknown

Mr.

SPEAKER_01

Khalil's saga began because he was present in America during the second Trump administration when the administration was looking for examples to terrorize. They found it in the case of Mr. Khalil, who had been outspoken against Israeli foreign policy in and around prestigious U.S. universities. And he's a Muslim. So three big dings there in Trump world. Agree or disagree with him, it's First Amendment protected speech. No one's even arguing it's not. Secretary of State Rubio, undoubtedly having consulted with Stephen Miller, who has had a team scouring the INA for cruel things to do during Trump's four years out of office, found INA section 237-A4CI, an essentially never used removal provision that we're all about to learn about. In an effort to trigger it, former Freedom of Speech Warrior Secretary Rubio wrote a letter that sought to take away Mr. Khalil's green card because, quote, his presence in the United States would have potentially serious adverse foreign policy consequences and would compromise a compelling United States foreign policy interest based on his participation and role in anti-Semitic protests and disruptive activities, which fosters a hostile environment for Jewish students in the United States. End quote. As a former Jewish student in the United States, allow me to respectfully disagree. Desperate for a more traditional ground of removability, DHS scoured the A-file and mustered up enough stuff to also allege that actually Mr. Khalil obtained his green card through fraud or willful misrepresentation. So a second ground of removability. Now last June, a district court preliminarily enjoined DHS from even seeking Mr. Khalil's removal, but IJ nevertheless sustained both removal charges and ordered him removed to Algeria or Syria. By the way, they brought in the ACIJ and a detained Louisiana facility to do it, if I'm not mistaken. And ultimately, due solely to the hard work of Mr. Khalil's attorneys and the federal courts, he was released and got to meet his child. Anyway, having violated the district court judge's order, the judge ordered the IJ to vacate the removability findings, which the IJ did. Looks like the injunction eventually ended somehow, so the IJ reissued the decision last September and surprisingly ordered Mr. Khalil removed again. Also denied a Section 237 A1H fraud waiver, the easiest waiver to get. The BIA affirmed. No discussion at all about what Mr. Khalil actually did that was so scary to Jews like myself that he is a foreign policy threat. I'd love to know. If Marco Rubio wants to be the ultimate decider of such things that offend Jews, the least he can do is take a poll of our feelings. Bet you, Mark Vanderhoo, and Ira Kurzman would have something to say on the question too, for the tribe. First, let's learn all about INA section 237-A4CI. Unstated by the BIA, the statute reads, quote, a non-citizen red alien, whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable. End quote. I'm not sure, but I think it's a remnant of the Cold War. Again, not sure, though, and undiscussed in this decision. And pursuant to the BIA's horrifying interpretation of that provision, quote, the IJ was correct in ruling that Secretary Rubio's letter is presumptive and sufficient evidence that the respondent is removable under Section 237 A4CI, end quote. That's right, folks. The Secretary of State can simply write a letter, and America will remove a lawful permanent resident. Indeed, for these purposes, quote, the Secretary of State's determination is equivalent to a duly certified record of criminal conviction by a state or federal court, end quote. And really, that's it. Now I know Mr. Khalil's attorneys brought other legal challenges and are certainly doing so in federal court too, including an as applied and who knows, maybe facial First Amendment challenge. None of that is discussed by the BIA here. Just we can't go behind the letter, no matter what it says or what the reason. Are. Nor does the BIA talk about DHS having to prove anything about whether the Secretary even wrote the letter. Just, there's a letter. So all the constitutional protections an LPR has in America are gone. And oh my, seems the DOJ's attorneys in federal court might have said some things that might undermine the BIA's decision here. A bit ambiguous. But quote, contrary to the respondents' claims, in reviewing the IJA's removability determination, the BIA is not bound by statements of government counsel during the litigation of Mr. Khalil before the Third Circuit and prior to the Third Circuit's order vacating the preliminary injunction. Sure about that, guys? Sure about that? You think the Third Circuit will agree? Although actually, here we're in the Fifth Circuit, I think, due to DHS's forum shopping while the other case makes its way up in the third, where I believe Mr. Khalil lives. Not 100% on all of that, though. Let's move on. Because the BIA spends the next nine pages affirming the INA Section 237-A1A fraud charge, the denial of the Section 237-A1H waiver, and some other things. One fact supporting all this misery on fraud, quote, DHS alleged that on a Form I-45 signed by the respondent in response to the question at Part 8, page 9, the respondent failed to disclose that he was a member of the United Nations Relief and Works Agency for Palestine Refugees, UNRWA, from June to November 2023 as a political officer. End quote. What's the crime? That it has the word Palestine and refugees in it? Also, can someone be a member of a UN sub-organization? Does the BIA actually mean that he was a member of a UNRWA affiliated student group or something? I don't know. Maybe he really was involved in the UN itself, but again, that's a problem now? Anyway, the I-45 doesn't just include membership, but it's incredibly broad in what it's requesting at this question. Listen to this question that so many of you listening already know. Quote, have you ever been a member of, involved in, or in any way

Matter of R-A-U-, 29 I&N Dec. 582 (BIA 2026)

SPEAKER_01

associated with any organization, association, fund, foundation, party, club society, or similar group in the United States or in any other location in the world, including military service? End quote. Might mean pretty much anything, right? God forbid. And I ask you, dear listeners, could you list every group you've ever been a member of, if asked, or ever been associated with or affiliated with, or anything at all, or linked to or anything? That soccer club where you attended three meetings in 2009. But you couldn't list them all. Which is why USCS and DHS never assert this technicality unless they just don't like the applicant and want to get them. Often happens to Muslims too. The BIA says yes, Mr. Kleel needed to list this UN agency. To be fraud, the omission must be willful and material. And man! Turns out the dude was an intern. Bet it was unpaid, too.

unknown

Mr.

SPEAKER_01

Kleel, quote, testified that he was actually employed by Columbia University, who then lent him out to UNRWA, and he disclosed his employment with Columbia in the form I-45. End quote. What are we doing here, guys? Well, not really addressing that at all. The BIA states, quote, the IJ permissibly found that by omitting his internship with UNRWA, the respondent shut off a line of inquiry that would predictably have disclosed other relevant facts and triggered the need for additional discretionary decision-making by the USCIS officer adjudicating the respondents' form I-485, end quote. That is the Supreme Court's fraud standard, yes, but do tell BIA what adverse facts could have been gleaned from our guy's internship with a UN agency that would have led the United States of America to deny a green card. Completely avoiding that by saying the IJ is due deference, the BIA affirmed the removal finding. Truly, neither materiality nor intent seem overly analyzed here, but that's just me. I'm clearly not a neutral audience for the BIA's decision on this one. Just getting started, so I apologize, everybody. Mr. Clear also filed a motion to remand. Quote, because DHS brought it in retaliation for his protected First Amendment speech criticizing Israel and the United States' support for Israel's actions in Gaza, end quote. I guess that's on discretion and not so much an as-applied challenge as I guess an illegal retaliation claim, at least in immigration court. And Mr. Cleo wanted discovery on this. That and related arguments. The IJ said no way. Well, non-citizens, quote, in removal proceedings are not entitled to conduct discovery directed towards the records, officers, agents, or employees of DHS, Department of Justice, or the Department of State, end quote. Although the regulations do authorize requests for subpoenas of witnesses and documents, that's HCFR section 1003. But the BIA believes Mr. Kleel's subpoena request wasn't perfect, and

Matter of E-N-N-, 29 I&N Dec. 586 (BIA 2026)

SPEAKER_01

so cast it aside. No discussion of the retaliation thing, though. Kind of just moved into a discovery argument. Seems to me the BIA is being intentionally vague on this. Seems like evidence and findings directly pertaining to Mr. Khalil were issued and present in the federal court litigation, American Association of University Professors v. Rubio. BIA doesn't say what it is, but it clearly doesn't like the decision. Just says, meh, wouldn't change the IGA's decision, even if it knew about that decision, so no remand. Quote, as the respondent is requesting review of the authority of the Secretary of State to render his opinion and how that opinion was reached, the respondent essentially requests that we look behind the facially valid actions of the Secretary of State. The respondent's attempt to veil his objection to the Secretary of State's opinion as a due process claim, where he is ultimately questioning the statutory authorization itself, is unsound. Moreover, the respondent may raise this or any constitutional claim in appealing from an administratively final order of removal. End quote. Please do, Mr. Khalil. Please do. Having stretched the INA to a near breaking point to find Mr. Khalil removable, the BIA was in no mood to grant him a Section 237-A1H waiver of his unforgivable sin of failure to list six-month internship through his Ivy League school with the United Nations agency. Unwarranted, too, right? Because of the Rubio letter removal? But the BIA went there anyway, did the waiver. To be honest with you, I don't even know what the IJ did here, but the BIA did make clear that, because Matter Forger's terrible rule is perspective only, yes, Mr. Cleal technically remains eligible for a Section 237A1H waiver, despite his adjustment of status. Wife and son in America and several support declarations, all submitted under tight deadlines, it appears. Weight against that, explains the BIA, is the misrepresentation, which is literally always the case. The BIA says it didn't consider the Rubio letter and general context of all this, but like, who are you trying to convince, BIA? Literally no hardship required for this waiver, but the BIA takes the opportunity to hold it deems the hardship insufficient for a waiver that requires no hardship. I don't even know what to say about the weighing of evidence in this one, folks. Read it for yourself and explain it to

Matter of Arana Castillo, et al., 29 I&N Dec. 593 (BIA 2026)

SPEAKER_01

me. I did misstate things a bit above. There's actually many pages about asylum and related relief and protection, but I've been speaking forever. Well, the Rubio letter essentially bars asylum under INA signature 208-B2AIV, explains the BIA.

unknown

Mr.

SPEAKER_01

Khalil is a danger to the security of the United States. But the BIA went through the Algeria and Syria claims anyway, no past persecution showing. No real analysis of well-founded fear, withholding removal or cat protection, just kind of stating the elements of those things and finding the IJ's findings in a conclusory manner. Okay. No remand for voluntary departure either, because the BIA believes that Mr. Khalil didn't adequately assert it below and for some other reasons. Concluding by stating that the United States government might decide to charge Mr. Khalil $998 a day for each day he remains in the U.S. because Congress permitted that too, the BIA issued a ruling that I hope does not come to define the BIA and which will one day be forgotten as a mistake. And that is a matter of MK. Not sure what to do when a client asks you about the EB5 investor visa or how they can choose the right EB5 project? That's where EB5 Support comes in. Founded and led by veteran immigration attorney Irina Pristova, EB5 Support helps investors navigate the entire process of EB5 project selection and provides complementary training for immigration attorneys who want to strengthen their EB5 petition filing skills. Visit eb5support.com. That's eB-5 support.com. Or click on the link in the show notes. Access their online attorney portal for training tools and practical resources, or schedule a time to speak with the team. All project guidance is provided by FINRA registered financial professionals so you and your clients can proceed with confidence. EB5 Support, where immigration law meets investment expertise. Security is offered through Sequence Financial Specialists. Doing business as Invest America. I got a lot out on that last one, didn't I? I hope you did too. This case is about convictions and crimes involving moral turpitude.

unknown

Mr.

SPEAKER_01

Gardner is living in the United States since someone brought him here as a tourist in 1992 at three years old. He's essentially my brother with those facts, but he was born somewhere else, something that neither Mr. Gardner nor my brother recall for that matter. Where were you born, Corey?

Matter of Santiago-Santiago, 29 I&N Dec. 589 (BIA 2026)

SPEAKER_01

Do you remember? Feel free to hit me up, Mom. Lord knows what his parents did with him in the interim or whether there was a path to get him a green card at some point or even DACA, but removal proceedings began in 2010 when he was twenty one. Proceedings were administratively closed but reopened six years after closure in twenty eighteen.

unknown

Mr.

SPEAKER_01

Gardner applied for non-LPR cancellation of removal and removal proceedings. He's got the years, but I don't know who the qualifying relative is. But in any event, DHS said he was ineligible because he had two prior CIMT convictions, two misdemeanor larceny convictions, one from 2009 and another from 2014, both in North Carolina.

unknown

Mr.

SPEAKER_01

Gardner conceded that the 2013 conviction was a CIMT, which I suppose means the 2009 one is too. Except Mr. Gardner argued it wasn't a CIMT because it wasn't actually a conviction. Quote, instead, the 2009 larceny charge resulted in what North Carolina calls a prayer for judgment continued or a PJC, which is a type of deferred resolution not resulting in a formal conviction, end quote. But the IJ disagreed, believing that while this isn't a conviction under North Carolina law, immigration is special. Because he pled guilty, it seems, and because the state court ordered community service work with the PJC, the IJ believed there's a finding of guilt and sufficient punishment for it to be conviction under immigration law. While unstated, I guess the IJ and BIA held that two CIMTs made all the difference because otherwise one North Carolina misdemeanor CIMT would meet the petty offense exception and so wouldn't trigger the non-LPR cancellation bar. Again, undiscussed here, but that's gotta be the rationale. Two CIMTs, though, had a luck. The BIA thought it was a CIMT conviction, too. So two of them. And the Fourth Circuit agreed. In North Carolina, quote, after a conviction or plea, guilty or nolla contendere, the court has power one to pronounce judgment and place it into immediate execution, two, to pronounce judgment and suspend or stay its execution, or three, to continue prayer for judgment, end quote. Here the court did number three, to continue prayer for judgment. As the Fourth Circuit has held previously, quote, when the prayer for judgment is continued, there is no judgment. Only a motion or prayer by the prosecuting officer for judgment. Absent a final judgment, there can be no sentence, end quote. That would seem to help, Mr. Gardiner, right? But there's a fourth thing that North Carolina courts can do, and it happened here. Kind of an amended number three, quote, when the court enters an order continuing the prayer for judgment and at the same time imposes conditions amounting to punishment, fine or imprisonment, the order is in the nature of a final judgment, with an attendant sentence from which the defendant may appeal. End quote. That's from that same Fourth Circuit decision, Gonzales v. Sessions. Now Congress got cute in 96, didn't we all? Instead of tethering the definition of conviction to state law as one would expect, they made up their own definition in INA section 11A48A. Under that statute, any state thing is a conviction if there's been a finding of guilt, including a nolo candidate plea, and even if adjudication of guilt is technically withheld. And, quote, the judge has ordered some form of punishment, penalty, or restraint on the non-citizen's liberty to be imposed. End quote. Here we've got prong one because of the NOLO plea, even though adjudication of guilt has been withheld, as Congress expressly accounted for in the statute. And we've got Prong 2 from the Community Service, explains the Fourth Circuit. Even though Mr. Gardner has no 2009 conviction under North Carolina law, in order to get his PJC, the North Carolina judge ordered completion of community service. That made it a final judgment under Gonzalez, remember? Now in Gonzalez, the Fourth Circuit held that merely an order to $100 in court costs didn't satisfy Prompt 2 because it wasn't punitive in nature. It was just administrative and ministerial. Discretionary costs would, however, have been punitive in nature, designed to punish if the judge didn't have to order them, but the judge did, right? So too community service here to the court. The Fourth Circuit explains that this finding, that community service satisfies INA Section 11848's punishment prong, aligns with decisions from the 8th and 5th, and of course from the BIA. Now, Mr. Gardner argued that the community service wasn't a punishment, but was instead designed to simply earn him the PJC. Not to punish, but to benefit. The court, however, doesn't believe Mr. Gardner has a citation for that, and at oral argument believed that counsel kind of conceded an important point. Quote, what matters is that it is discretionary, is required by the court, and is neither an administrative nor compensatory order intended to reimburse a state, regulatory body, or expenses incurred. End quote. As such, it's a punitive restraint. Tough stuff and tough IRIRA. And although this is a final judgment under North Carolina law, as discussed above, that actually doesn't matter for Section 101A48 purposes. I think it would matter for INA purposes, though, regarding finality, but that's just me spitballing. Either way, not present here because a continuing prayer for judgment with conditions of this nature constitutes a final judgment under North Carolina law, as I keep saying. So, Mr. Gardner, with two old misdemeanors as a very young man and who surely knows no other country, will be removed. And that is Gardner v. Blanche. Moving on to Petrov v. Blanche, published by the Seventh Circuit on April 14th, 2026. This case is about hardship. Mr. Petrov is a quote, stateless gypsy, end quote, born in Germany. I love this podcast. And although the Seventh Circuit didn't, I'm gonna use the word Rama. He was brought here at the age of one. One and he's lived here ever since. What is going on this week? He was brought totally without authorization, unlike our Fourth Circuit friend. He's married to a U.S. citizen and has three children. His father is a U.S. citizen. Seems Mr. Petrov's a good dude with no criminal history. But he doesn't have as a viable path to adjust to lawful permanent residence test under draconian U.S. immigration law, so he applied for asylum in 2014 from Germany because he's Roma. USCS referred that to immigration court. Then Mr.

Sandoval Diaz v. Blanche, No. 24-1062 (4th Cir. Apr. 20, 2026)

SPEAKER_01

Petrov sought non-LPR cancellation of removal in immigration court, which I hope was not the plan all along. An immigration judge and then the BIA denied, deeming the hardship not bad enough. Not removed by 2021, Mr. Petrov asked the BIA to reopen his case for submission of additional hardship evidence, namely that his wife suffers from anxiety, depression, and PTSD. Also, the wife had a miscarriage, and two of his children and his father have medical conditions. Also, articles about how the Roma are treated in Germany. The BIA declined the invitation to reopen. And the Seventh Circuit affirmed that. One year old, guys, one year old. And no criminal history. And I'm not sure if he's really stateless. Seems that might have been his assertion. Unsure if Germany recognizes Mr. Petrov as one of their own. But first, the Seventh Circuit notes, of course, and explains that post Wilkinson, the BIA's determination that the hardship presented doesn't satisfy the exceptional and extremely unusual standard is reviewed under the deferential substantial evidence standard. But the Seventh Circuit didn't actually adopt that or anything else for now. It deemed the hardship in the motion to reopen insufficient, no matter the deferential standard. That the family is financially dependent on Mr. Petrov doesn't cut it under long-standing precedent.

unknown

Mr.

SPEAKER_01

Petrov, of course, added more hardship with his motion to reopen, but that's a really, really deferential review, explains the Seventh Circuit. Abuse of discretion, and the court wasn't willing to overturn the BIA. The evidence must be new and undiscoverable to satisfy the motion to reopen standard, right? And here, all courts seem to agree that Mr. Petrov could have actually submitted a lot of it the first time around. The wife's condition, for example, started in 2011, similarly with his daughter's heart condition. The truly new evidence to the Seventh Circuit didn't move the needle for the court. This included the articles about racism and mistreatment of Roma's quote, while adverse treatment of Mr. Petrov in Europe may cause his family dismay or hamper his ability to contribute financially, these general articles do not establish that the situation facing his family would rise to the high standard of exceptional and extremely unusual hardship. End quote. Mr. Petrov, therefore, may be going to Germany after a lifetime in America. If they'll even take him. And that is Petrov v. Blanche. I know I didn't. Yet here you are. H1B season in full swing, and your team is buried in beneficiary forms, document chasing, and data entry. That's $400 an hour in legal talent doing $20 an hour work. Staffi plugs directly into your workflow. Staffi handles the data entry, document collection, and H 1B form prep. Your team reviews it, you approve it, you bill. With the new wage-weighted selection process adding even more admin pressure this season, the firms that scale are the ones that stop doing it all themselves. Say yes to more H1B clients without burning out your team. Visit staffy.cc or call 786-891-5619 or click on the special link in the show notes. Because you deserve a practice that grows without burning you out. Elevate your advocacy and storytelling skills at the Annual Immigration Court Trial Advocacy College. Registration is now open. The Annual Immigration Court Trial Advocacy College convenes every year in April, only in Kansas City, Missouri, hosted by the Pen and Sword, that awesome community resource founded by Rake and Michael Sharma Crawford. This year, the program has been reimagined and reworked to address the current climate of aggressive deportation enforcement. These times are not ordinary, so the program had to be extraordinary. Expanding from three to four days, the trial college provides comprehensive training from beginning to end. Real cases taught by real litigators in real courtrooms. The skills you need, the confidence you deserve, and the mentors you look up to all in one place. Register early to avoid disappointment at www.thepen-and-swordkc.org or at the special links in the show notes. Use special code ImmigrationReview26 to get $50 off the Trial Advocacy College this year. That's Capital I, Capital R. If you didn't want it to end, you shouldn't have listened to the end. This is United States v. Gonzalez Reyes, published by the Ninth Circuit on April 15, 2026. And this case is about aggravated felony rape. So just a heads up. Judge DeAlba dissented.

unknown

Mr.

SPEAKER_01

Gonzalez Reyes has been ordered removed before. He entered again unlawfully and was charged with criminal illegal reentry under AUSC Section 1326. He tried to attack his conviction by arguing that actually he shouldn't have been expeditiously removed in the first place because the basis for that a California rape conviction. Wasn't actually an aggravated felony. Guess he was a lawful permanent resident before? Bad facts of the conviction, too. The statute is forcible rape under Cal Penal Code Section 261A2. For a variety of reasons, attacking the conviction is only potentially possible if he can show that actually this isn't an aggravated felony rape offense, as defined in INA section 11A43A. And the panel agrees that section 261A2 can be committed through non-physical coercion, like duress, or out of fear that the raper will hurt the victim or someone else if they don't comply. What's more, the California Court of Appeals has held that the statute is indivisible vis-a-vis how the rape is committed, that is, through force or a nonviolent way, like under duress. And to the extent that Mr. Gonzalez Reyes had to meet the realistic probability test to show that California actually criminalizes nonviolent rape, he did so with an unpublished Court of Appeals decision from 2005. Quote, it cannot be that the presence of a realistic probability under Duannis Alvarez depends on whether a conviction is described in an unpublished rather than published opinion. Listen up, Fifth Circuit, folks. So that's something. It's just that to the majority, quote, the generic federal definition of rape encompasses rape by non-physical duress. Black's Law Dictionary from 96, when rape became an aggregated felony, defined it as, quote, unlawful sexual intercourse with the female without her consent, when the woman's resistance is overcome by force or fear, or under other prohibitive conditions. End quote. All of that aligns with some other Ninth Circuit case law too explains the majority. That's all non-physical duress to the court. Distinguishing the recent Barry decision out of the 11th Circuit, given that that decision explains the ninth, was about a different issue with the rape definition. Indeed it was. Seems the model penal code has a narrower definition of rape and would require a showing of force or a threat of force. Well, explains the court. Quote, when faced with the conflict between potentially outdated provisions of the Model Penal Code and contemporaneous dictionary definitions, we think the latter more accurately represents the meaning of a statutory text enacted by Congress. In any event, the Model Penal Code definition is from 1962. State statutes support this to the majority, quote, by 1996, the definition of rape had become broader across multiple jurisdictions to encompass acts committed through non-physical force or threats of non-physical coercion. And for all those reasons, the Ninth Circuit didn't let Mr. Gonzalez Reyes get out of his illegal re-entry conviction. Judge De Alba dissented over many pages about the definition of rape. And keep your ears open. Whether the aggravated felony definition of rape includes digital and mechanical penetration and other forms of non-common law rape is currently pending before the Ninth Circuit post-oral argument. That's the exact same issue in Barry and three other precedential decisions. I can't help but think that this decision has some relevance, although the panel takes pains to distinguish Barry because it is a different issue. That said, the government's main argument in that pending case, like Barry and others before it, is that the circuits should disregard the common law definition of rape because the states had moved on from it by 1996. That is the common law definition. Not so fast, the Ninth Circuit appears to be saying, quote, we do not think it would be fruitful to look at a state-by-state analysis of the definition of rape to determine the generic federal definition, because, as the dissent acknowledges, states in the late 1990s had widely varying definitions. End quote. I would 28J that for days, Ninth Circuit Council waiting for a decision, post-oral argument. And that is United States v. Gonzalez Reyes. So there you have it. You're all caught up with the past week's published immigration cases. I'm Kevin A. Gregg, a partner with the law firm Kurzban, Kurzban Titselli, and Pratt, and this has been another episode of Immigration Review. Thank you for listening, and I hope you enjoyed it. If you did, please share it with a friend and rate and review us. Each review helps new listeners find the show. And of course, subscribe to Immigration Review wherever you get your podcasts. If you like what we do and want to become a patron of the show, please check out our Patreon page at www.patreon.com forward slash immigration review or click on the link in the show notes. And if you're interested in an official Immigration Review CLE certificate, email me at kgreg at kktplaw.com with your full name and the episode numbers for the 10 shows you've listened to. Also, feel free to email me with questions, comments, or anything at all. And follow the show on Instagram and Facebook at Immigration Review or send us a tweet at Imreview. That's IMM Review. And you know we're always interested in hearing listener feedback. Like this review about the episode you just listened to from my very young son. Son, how did you like that episode? Indeed. If you like my son, enjoyed what you just heard again, please give the Patreon page some love, feel free to review the pod, reach out to me with your own kind sounds, or do anything else nice that your heart desires. I'll be back next week for a brand new discussion. Until then, I'm Kevin A. Gregg, bringing you the Immigration Review.