Immigration Review

Ep. 320 - Precedential Decisions: 6/8/2026 - 06/14/2026 (petition for review withholding of removal; Matter of Y-L-; BIA stays; sua sponge reopening; reweighing evidence; crime of violence; recklessness; violation of a protective order)

• Kevin A. Gregg, Esq.

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Laureano v. Att'y Gen. U.S., No. 24-2433 (3d Cir. May 29, 2026)

  • petition for review withholding of removal; reinstatement; Riley; Matter of Y-L- presumption

 


Matter of Herrera-Nunez, 29 I&N Dec. 691 (BIA 2026)

  • stay pending motion to reopen; requirement to file stay with DHS first; procedural rules; administrative efficiency; power to create discretionary policies

 


Matter of Herrera-Nunez, 29 I&N Dec. 695 (BIA 2026)

  • sua sponte motion to reopen; equities acquired post-removal order

 


Dodaj v. Blanche, No. 25-3409 (6th Cir. June 8, 2026)

  • LPR cancellation of removal; BIA reweighing evidence; waiver of removability argument; HYTA youth conviction in Michigan as a minor

 


Senatus v. U.S. Att'y Gen., No. 24-10514 (11th Cir. June 8, 2026)

  • Borden; crime of violence; recklessness; Fla. Stat. § 784.021(a); Somers; Florida Supreme Court change in law tells what statute always meant; favorable exhaustion standard

 


Tiah v. Blanche, No. 24-2010 (8th Cir. June 8, 2026)

  • INA § 237(a)(2)(E)(ii); violation of a protective order; circumstance specific approach; no requirement to submit violation; N.D.C.C. § 12.1-31.2-02




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SPEAKER_00

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 Kurzban, 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 Ke Immigration. If your caseload is growing, you've probably felt this. At some point, more cases start to mean more chaos or more hiring. But it doesn't have to work that way. There's a really good guide on immigration case management that shows how better systems and workflows can actually increase your capacity without just adding more people. It covers everything from data consistency to client communication. And it's totally free for immigration review podcast listeners. Get this and tons of other free resources at get.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? 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 is intended to keep you up to date and enable you, my dear colleagues, to excel in court. So, without further ado, let's start the review. Welcome to another week of the Immigration Review Podcast. I am not going to talk about the USCIS Visa Overstay Adjustment of Status Nonsense memo. Bring on the lawsuit. What a cruel administration. But also Justice Barrett and the majority gave them the path and patel. But also Mitch McConnell stole Merrick Garland's seat after Justice Scalia passed and then didn't apply the same logic to the exceptionally more egregious passing of Justice Ginsburg and the confirmation of Justice Barrett. I'm sorry guys. Once you start going down that rabbit hole of frustration, it is very hard to stop. Anyway, yes, the attack on adjustment of status has very much begun. Also, this week, the Third Circuit declined to go in Bank on Mahmoud Khalil's case. Maybe I missed what had happened, or maybe it was just never precedential before, but I also don't see a majority decision. It is the denial of rehearing in Bank, though. We do have dissents though, and it's all about jurisdiction. Reports are already discussing a petition for a writ of sortier to the Supreme Court being filed or forthcoming, which should be granted if the court cares as much as it says it does about the First Amendment rights of human beings. The stakes couldn't be higher. As the dissenting judges conclude at the Third Circuit, quote, the judiciary serves as an inseparable element of the constitutional system of checks and balances, protecting civil liberties and checking legislative and executive discretion. We cannot fulfill that role if we write ourselves out of relevance and leave the executive branch to check itself. End quote. There's some news. Here's a shout out to the American Constitution Society, which I very much support. I am the vice president of the San Diego Lawyers Chapter this year. ACS is a nonprofit that works to advocate for laws and legal systems that support

Laureano v. Att'y Gen. U.S., No. 24-2433 (3d Cir. May 29, 2026)

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a multiracial, representative democracy. This includes a judiciary that reflects the diversity of the public it serves, democratic institutions that advance equity and justice, uphold the rule of law, and guard against abuse of power, a robust and diverse legal civil society that promotes progressive transformation of laws and legal systems, and much more. Built in response to the Federalist Society in 2001, ACS celebrates its 25th anniversary this year and is helping to organize lawyers in several communities, including new chapters in South Carolina, Indiana, and more. Hit me up if you want to get involved in the San Diego chapter and get connected to your local chapter via email at campus atacslaw.org. That's campus at acslaw.org. Links in the show notes. Having said that, in an effort to protect the judiciary, here is what the judiciary said this week. Our first case is Rodriguez Solas v. Blanche, published by the Fourth Circuit on May 21, 2026. This case is about the right to counsel. Miss Rodriguez Solas is from Honduras. She was represented for many years by an attorney appearing before the Charlotte Immigration Court. For much of that time, the case was administratively closed, although an asylum application was filed before admin closure. The case woke up again during Trump won, but four more years of delay occurred. Some of it was because of COVID, though. You guys remember COVID? I remember COVID. Things were crazy in immigration court. Before that, though, an individual hearing actually occurred in 2018, but neither counsel nor Miss Rodriguez Solas showed up. When the immigration judge called the attorney, the attorney said she failed to put the hearing in her calendar. Fortunately for the attorney and Miss Rodriguez Solas, the immigration judge reset the individual hearing and did not go in absentia. Mortality occurred. And not really a cause, but how about this? The attorney, quote, asked the court to provide a Honduran sign language interpreter for Miss Rodriguez Solas' sister, who was blind and deaf and would be testifying at Miss Rodriguez Solas' hearing. End quote. Two questions from me there. One, does Lion Bridge provide such a unique person? And two, what good is a sign language interpreter to a blind witness? Maybe I suppose it's to translate the signs that the sister is doing for the court, but how do you then converse with such witness in the other direction? Obviously there's a way, Helen Keller, all that stuff. I'm just genuinely curious. After years and years a different immigration judge got to sign the case. The matter was set for a merits hearing, and the IJ and counsel set an outline for briefing and identified issues, and things seemed to be ready to go. But about seven weeks before the final hearing, the longtime attorney moved to withdraw. And that's after over a decade of representation, technically, because what is administratively closed never dies. The IJ granted the motion to withdraw seven days later, so about six weeks before the individual hearing. By the way, in a footnote, we learned that there is one and only one Honduran Sign Language interpreter, and that interpreter did the sisters' separate asylum hearing. The more you know. Back to the case at hand. Now attorneyless, Miss Rodriguez Solas requested more time to secure an attorney. She said the attorneys that she had contacted couldn't take her case on such short notice. The IJ denied based on how long everything had been pending, and the fact that the IJ believed that Miss Rodriguez Solas had had enough time to get a new attorney. The IJ went through the asylum application with Miss Rodriguez Solas, and it seems like she didn't really know what was in it. She didn't speak fluent English. She blamed the prior attorney for deficiencies, and the IJ seemed to defend the prior attorney a bit. The sister did end up testifying, by the way, and the IJ ultimately denied asylum based on an adverse credibility finding. The BIA affirmed it all and held that there had been no due process violation. The Fourth Circuit majority remanded. Judge Quedelbaum is in dissent. But for the majority you see, the INA itself provides non-citizens the right of, quote, the privilege of being represented at no expense to the government by counsel of the non-citizens choosing who is authorized to practice in such proceedings. And matter of CB, BIA 2012, apparently holds that unless a non-citizen waives that right, IJs, quote, must, end quote, afford non-citizens, quote, a reasonable and realistic period of time to provide a fair opportunity to seek, speak with, and retain counsel, end quote. Violated here under these circumstances, explains the court. Much comes down to whether Mr. Gasilas had enough time to get a new attorney, but even that time period is all over the place to the court. The IJ, BIA, OIL, and petition for review counsel all argue that it was a slightly different amount of time. The Fourth Circuit seems to think it was about a month, but also faults the BIA for not accounting for the fact that there was also briefing due before the hearing, making the time to get counsel that much shorter. And in any event, quote, a new lawyer would need time to build rapport with both Miss Rodriguez Solas and her sister to elicit the sort of extremely traumatic testimony necessary for her asylum hearing, end quote. And they'd have to navigate how on earth to get witness testimony from a blind and deaf witness. Quite the fact that one, I do keep coming back to it. Quite unique. It is therefore, quote, unsurprising that Miss Rodriguez Solas could not find a new lawyer to take her case in the face of two quickly approaching deadlines, end quote. Reframed, the Fourth Circuit explains that actually this was actually only Miss Rodriguez Solas' first request for more time to get a new lawyer after more than a decade of representation. Given this and the absence of evidence that this was merely a dilatory tactic, the court held that the IJ violated Miss Rodriguez Solas' statutory right to counsel. The Fourth Circuit rejected Oyle's argument that given that only she and her sister needed to testify, she didn't really need a lawyer anyway. Quote, besides trivializing the important work of immigration lawyers, that argument gets the statutory framework backwards. Like the similarly worded Sixth Amendment provision, with which it shares obvious similarities, the statutory provision we are dealing with here does not say non-citizens in removal proceedings have a right to be represented by a lawyer if but only if they can establish they need one to effectively make their case. End quote. They just get one. That's what the statute says. If they can pay for it. And score one for the immigration lawyers in the Fourth Circuit. The Court rejected some other silly arguments from Oyle 2, if I'm being honest, which I always am. The court also distinguished decisions out of the Sixth, First, and Ninth Circuits. Having found that the right was violated, that the Fourth Circuit remanaged so the BIA could determine in the first instance whether Mr. Rodriga Solos was prejudiced by all this. But isn't prejudice resumed when the right to counsel is denied? I am slightly confused, Court. A little confused. And here we go, Miss Rodriguez Solos made that very argument, among a few others. Well, it looks like in the past the Fourth Circuit held that prejudice was required under facts like this, so that's a star decisis problem. Then again, acknowledges the Fourth Circuit, there's its recent Guntero decision and other important cases, indeed recognizing that in similar contexts, prejudice can be presumed. Given all that, though, it seems that the court is kicking it to the BIA for the BIA to determine whether prejudice is presumed for such a statutory violation, among other related things. Meh. Big meh energy from this guy. Judge Quaddlebaum in dissent sees this as an abusive discretion issue that doesn't meet the standard and worries that the majority gives non-citizens too many Sixth Amendment rights. But with a remand, congratulations, Parisa Sadeghi, Andres Lopez, and Benjamin Winograd for petitioner. And that is Rodrigo Solas V. Blanche. Two from the BIA this week. First, matter of IBMS. The flounder that is the BIA is back this week. Sincere thanks for taking last week off, guys. Really mean it. And honestly, I don't actually know what it means to refer to the BIA as a flounder, but a longtime listener and recently minted bright new paralegal wrote me this week and referred to the BIA as a flounder. And well, it made me chuckle. So I share it with you all. This is a matter of IBMS published by the Flounder. And with a name like that, I'm not gonna do the chip processor pun, and I'm certainly not gonna do a gastrointestinal pun on the case name. Tempt me as you might, BIA. I am better than that. Pro se Mr. IBMS didn't respond to the appeal because, well, he's pro se the BIA issued this holding and states as one of its top line holdings that, quote, an immigration judge must act as a neutral and impartial arbiter, and the obligation of neutrality extends equally to an immigration judge's treatment of both parties. End quote. Who, Pray Tell, are you reminding BIA? Let's find out. This is an interlocutory appeal, which the BIA states it rarely entertains, though it has done so like ten times in the last year and a half. All DHS appeals, if I'm not mistaken. This is about a change of venue motion. The respondents are from Brazil and entered without authorization near El Paso, but the notice to appear was filed by DHS in the Boston Immigration Court. Two master calendar hearings occurred, and then there was a merits hearing set, and then that hearing actually went forward, the merits hearing. Before that, two EOAR 33 change of address forms were filed, but both were in the same city and had the same zip code as the address in the notice to appear. So that's a little weird. Direct examination occurred at the merits hearing. And it's all happening over WebEx. Then counsel for the respondent requested a recess. Quote, the IJ engaged in an off-the-record conversation with the parties. According to the IJ's summary of the off-the-record discussion, it related to asylum derivation. It related to asylum derivation issues and the responsibility to request a change of venue, end quote. This after apparently counsel said at the beginning of the hearing that a venue change wasn't desired. Then, though, a venue change motion was made for transfer to the Chelmsford Immigration Court. The motion was granted, even though the respondents were appearing over WebEx. So I'm not gonna lie, the VIA has picked an extraordinary fact pattern to rule against a motion to change venue grant. That's kinda wild. That said, the zip code and the EYR 33, and I suppose the notice to appear, did align with the Channelsford Immigration Court, according to that EOIR zip code finder thingy that they now use. All of this is happening over DHS's objection, so DHS appealed. Interlocutor, because the case isn't over, it's just about a change of venue. The BIA sustained the appeal. Motions to change venue are granted for good cause, that amorphous term. In the venue change context, quote, relevant factors including administrative convenience, expeditious treatment of the case, the location of the witnesses, cost of transporting witnesses or evidence to a new location, factors commonly associated with a non-citizen's place of residence and the position of the opposing party, end quote, should be considered. No factor is necessarily weighed heavier than others, explains the BIA, but then it goes right to the importance of expeditious treatment of the case. The BIA explains that this factor weighs heavier against a venue change as proceedings progress, and particularly when an individual hearing has been scheduled or already commenced, as occurred here. And quote, absent extraordinary circumstances, venues should not be changed the day of an individual hearing, end quote. The BIA doesn't believe

Matter of Herrera-Nunez, 29 I&N Dec. 691 (BIA 2026)

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that the IJ balanced any of that in this case. As to the zip code thing that I do believe IJs rely on kind of heavy these days, quote, the mere fact that the respondents reside in a zip code corresponding with another court is insufficient cause to outweigh the other significant factors that militate against changing venue at this late stage of proceedings, including DHS's opposition and the need for expeditious treatment of the case. End quote. So definitely some qualifiers there. Zip code thing's still powerful, I guess. Not to mention no prejudice, it seems anyway, given that it was a WebEx individual hearing. Or at least none shown here in the undefended pro se appeals defense. The BIA also isn't happy with the off-the-record discussion. I personally believe them helpful under appropriate circumstances. Judge Bartolome, who I interviewed last year, would never do them, in my experience. He has an opposite view. The BIA states here that IJs should limit them, and that parties shall be given the opportunity to add or amend to summaries done by the IJ, which quite frankly has always been offered to me in my experience, and to DHS counsel. In this case, though, the BIA doesn't believe the IJ properly memorialized the off-the-record conversation. Nor does the BIA like that the IJ unmarked previously marked exhibits. Even if the venue change had been proper, explains the BIA, proceedings still continue, just at a new court, so the exhibits can remain. Explains the BIA, while IJs have broad authority to conduct and control immigration proceedings, provided they avoid the BIA's landmines being issued every week, IJs must still act as, quote, neutral and impartial arbiters to both parties, end quote. Fundamental fairness demands it, explains the BIA. DHS II must, quote, be afforded a meaningful opportunity to be heard, end quote. Does an IJ who takes over direct or cross-examination, pretermit applications without motion, or deny motions where no response is filed, act as a neutral and impartial arbiter, BIA? Truly asking for a friend. Particularly that cross-examination question, BIA, if you could get back to me on whether that is a neutral and impartial arbiter. But quote, here, the immigration judge's comments and conduct during the individual hearing raise concerns regarding neutrality and create an appearance of bias, which is inconsistent with the IJ's role in these proceedings. The BIA is particularly troubled by the IJ's statement that she often gives deference to a non-citizen's venue choice. So, IJs, you cannot often give preference to DHS's venue choice. Quote, IJs must assiduously refrain from becoming advocates for either party, end quote. So I guess that does answer my cross-examination question, guys. IJs shouldn't do it. You heard it here from the BIA. Bias was so strong based on that statement made by the IJ that the BIA reassigned the case to a different judge on remand. My goodness, the bias. Also pretty interesting that the BIA would go out of its way to reassign the case when it surely knows, as I do through my sources, that the IJ was already fired. Are you just trying to make a point, BIA? That's not very appellate of you. I will fall on my sword if my sources were wrong and that transfer to a different IJ was actually necessary. Someone at the BIA, feel free to get back to me. But DHS won its appeal. And that is a matter of IBMS. You didn't go to law school to enter data. 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 H1B 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. Moving on to Matter of LAD published by the BIA, Matter of Lad. Asylum Denial Fridays. This one regarding a Mexican man with schizophrenia deemed incompetent to represent himself. The BIA has overturned an immigration judge's grant of asylum. The asserted particular social group is, quote, Mexican men with schizoaffective disorder, end quote. The BIA doesn't like the group. A particular social group, of course. Must one be composed of members who share a common immutable characteristic, two, defined with particularity, and three, be socially distinct within the society in question. The BIA states without citation that, quote, particular social groups related to mental illnesses present distinct cognizability challenges, end quote. Mental health conditions change, and even if they don't, the symptoms often do over time or diverge even between individuals with the same mental health issue, explains the BIA. Plus, medication can sometimes help. As such, in its campaign to rewrite immigration law, the BIA makes this expansive holding, quote, in most cases, a particular social group based on a diagnosis alone will not be cognizable, considering the broad spectrum of severity and symptoms covered and the extent to which symptoms are reasonably controlled by medication, end quote. Now, non-citizens can narrow their particular social group, but then that narrowing might result in the particular social group not having clear boundaries, explains the BIA. So kind of damned if you do, damned if you

Matter of Herrera-Nunez, 29 I&N Dec. 695 (BIA 2026)

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don't, right? You cannot narrow a diagnosis-based particular social group by adding, quote, undefined potential symptoms that could be present with a diagnosis, end quote. What will cut it? The BIA isn't very clear. Very good at saying no these days, though, but not very clear at what wins the day. Here the particular social group did not succeed. Quote, the term schizoaffective disorder covers a broad spectrum of behavior exhibited with varying degrees of severity. The prefford group does not include any limiting language to narrow its breath, end quote. And even though the IJ narrowed it, literally in conformance with some fourth circuit precedent, I think, the BIA doesn't believe the narrowing characteristics defined in the record or the record evidence sufficient on this point. All that holding is about particularity, but the BIA also doesn't see the group as socially distinct either. Quote, for particular social groups related to mental illness, the proper consideration is whether society perceives individuals in the proposed group distinctly, not whether a doctor or psychologist would view one mental health illness as distinct from another. And would Mexican society really, for example, differentiate between someone with bipolar disorder as opposed to someone with schizophrenia? The BIA doesn't think so. Ruining my Friday evening, the BIA then proceeded to assume the group cognizable and write four more pages about why, regardless, asylum is too speculative to be granted on that basis. The circuits have done this dance for years and come out in different ways, so check your circuit. Here's the BIA's version summarized. Maybe Mr. Ladd can get treatment in Mexico. The BIA doesn't know. That cuts against him. And maybe his family can support him. BIA is unsure. Regardless, the BIA believes it's speculative that Mr. Ladd would behave in a way that got him involuntarily institutionalized. And even if that happened, the BIA doesn't think he'd be harmed on account of his membership in this group, even if his conditions were bad in that facility. Countries have a right to involuntarily detain and treat, quote, potentially dangerous mental illnesses, end quote, explains the BIA, relying on that rough Jossie V. Garland decision from the Fourth Circuit a few years ago. Quote, determining the appropriate allocation of resources to address involuntary mental health treatment is part of a nation's sovereignty authority and thus well beyond the authority of the immigration courts or the BIA to assess, end quote. The BIA sees no motivation to harm Mr. Ladd either. Lack of resources and training at worst to the board. To the extent there is record evidence, well, it's not specific enough to Mr. Ladd. That common refrain. Oh, the evidentiary burden asylum seekers have. Attempting to expand matter of JFF into asylum, the BIA states without any citation that, quote, a series of speculative occurrences that also lack evidence of persecutory intent is insufficient to demonstrate a well-founded fear of persecution. End quote. Though 10% chance is the standard. Remember it, folks. BIA doesn't see a pattern or practice claim either. Anyone else getting the feeling that the BIA is loading up on precedent to then eventually summarily and brutally tear through its backlog whenever the hammer falls? Hope not. Seems likely. As for Mr. Ladd, he has lost his asylum grant, but will now have the opportunity to pursue a convention against torture protection on Reman. But with friends like these, I'm not hopeful. And that is a matter of L A D. Concluding with two from the First Circuit. The first, Vasquez Chavez v. Blanche, published by the First Circuit on May 22nd, 2026. This case is about asylum.

unknown

Mr.

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Vasquez Chavez is from El Salvador and testified to years of abuse from his family as a child. He fled to America in 2016 after his father tried to kill him. Barely an adult at that time, he was granted voluntary departure but returned shortly thereafter. Rather than reinstate a removal order, as I believe DHS could have done, Mr. Vasquez Chavez was placed in removal proceedings where he brought an asylum claim. Most relevantly, an IJ denied, deeming it all merely a family dispute, albeit a very dangerous one. Corroboration issues too, and I'm skipping over quite a bit as it's not very relevant to the disposition. The BIA affirmed as did the First Circuit. Explains the court, quote, personal disputes are generally not enough to show the

Dodaj v. Blanche, No. 25-3409 (6th Cir. June 8, 2026)

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required nexus between past harm and a protected ground. Now true recognizes the First Circuit, and all but forgotten by the BIA these days. The INA and the regulations literally state that the testimony of a non-citizen, including an asylum seeker, may be sufficient for that non-citizen to obtain immigration relief. IJs just don't have to make that finding if they think corroborating evidence is necessary. And well, the BIA seems to believe that that is the case always these days. So who is an IJ to disagree? That's me on a tangent. There were actual issues identified by the IJ here. Now it's true, the IJ did hold that the harm suffered rose to the level of past persecution. But that doesn't mean past persecution, explains the First Circuit. You still need a nexus to a protected ground. Again, the court agrees that this looks more like a very dysfunctional family, rather than harm on account of Mr. Basquez Chavez being part of any particular social group. Not only that, but the First Circuit agrees with the IJ's denial based on a lack of corroborating evidence regarding whether the Salvadoran government was willing or able to protect Mr. Basquez Chavez from his father. That's where the corroboration was apparently needed. And it was needed in part because of apparent inconsistencies in the testimony to the IJ. So the IJ wanted corroborating evidence about how police were notified in the past and affidavits from other family members about what happened. None were apparently provided. Particularly given the standard of review, it was all affirmed by the First Circuit, which is why Mr. Vasquez Chavez lost his case. And that is Vasquez Chavez v. Blanche. We conclude then with United States v. Pimental, published by the First Circuit on May 20th, 2026. This is a sentence enhancement case about quite a few things, but we'll skip to the part that matters for immigration purposes. Massachusetts carjacking in violation of Mass General Laws Chapter 265, Section 21A is not a sentence enhancement crime of violence. And because that crime of violence definition is materially identical to the immigration definition, I guess it's not an immigration crime of violence aggravated felony either. The Massachusetts statute reads as follows Quote Whoever with the intent to steal a motor vehicle assaults, confines, maims, or puts any person in fear for the purpose of stealing a motor vehicle shall, whether he succeeds or fails in the perpetration of stealing the motor vehicle, be punished by imprisonment in the state prison, blah blah blah blah blah blah blah. End quote. Now right off the bat, that intent to steal thing very well might make it an aggravated felony theft offense. But I don't think such things exist in the sentence enhancement world, and who am I to make such anti-immigrant arguments? Let's focus on the analysis at hand. It's not a crime of violence because the categorical approach to criminal statute interpretation requires a focus on the least culpable conduct. In the first circuit, or at least to this panel, non-citizens must satisfy the realistic probability test every time. There must be a realistic probability that a statute would apply to conduct that falls outside the generic federal definition that we're trying to match to. Here, sentence enhancement crime of violence. It's just that in the first circuit, explains the court, the plain text of the state crime can satisfy the realistic probability test. The government conceded here that the statute is not divisible into separate crimes, so the whole thing is a crime of violence, or none of it is. As to the elements of the offense, quote, a defendant one, with intent to steal a motor vehicle, two, assaults, confines, maims, or puts any person in fear, three, for the purpose of stealing the motor vehicle. End quote. Those are the elements required to convict. And we're trying to match that up to the crime of violence definition, which requires, quote, the use, attempted use, or threatened use of physical force against another person, end quote. The immigration definition at the crime of violence provision adds property to the end of that definition too. First Circuit case law explains the court equates assault with mere touching. And remember, assault is used in that Massachusetts definition. Now it's mere offensive touching to be specific, but that's not necessarily the degree of violent or physical force required of Supreme Court precedent to be a crime of violence. The force need not be the type that creates, quote, physical pain or injury, end quote. This despite Massachusetts case law recognizing that carjacking is an inherently violent offense. Quote, we must train our analysis on the statutory elements before us, end quote. Seems kind of like dicta anyway, from the Massachusetts courts to the First Circuit, or at least to me reading the First Circuit. Now, yes, when reading criminal statutes, explains the court, you need to read terms and context next to the other elements. So like the case the First Circuit discusses where someone must assault

Senatus v. U.S. Att'y Gen., No. 24-10514 (11th Cir. June 8, 2026)

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with the intent to kill, well, that materially alters the word assault. That's a pretty high level of assault, right? But here you have to assault with the intent to permanently deprive someone of a car. Nothing necessarily violent about stealing, explains the First Circuit. So it seems to me that literally any Massachusetts crime that incorporates the word assault is not a crime of violence. But that's just little old me. Don't need to find an exemplar case prosecuting this, as the US government was arguing, because again, the plain text of the statute wins the day. Be gone with that attempt to expand bad Fifth Circuit case law into New England, Department of Justice. So, surely a U.S. citizen, Mr. Pementar is getting less time for his bank robbery conviction. He would have got more time if this carjacking conviction was a crime of violence. And that's all because the categorical approach is powerful. And because, never forget, U.S. citizens commit far more crimes in America than do non-citizens. For all of it, congratulations to Christine Damaso of the Federal Public Defenders. And that is United States the Pimental. 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 ImmigrationReview. 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!