Immigration Review

Ep. 322 - Precedential Decisions: 6/22/2026 - 06/28/2026 (returning LPR; TPS; no more equal protection; metering; motion to reopen untimely appeal; PFR & FARO; discretionary asylum; ACA termination; hardship & discretion; M-A-M- safeguards; PSC)

• Kevin A. Gregg, Esq.

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Blanche v. Lau, No. 25-429 (U.S. June 23, 2026)

  • applicant for admission; returning LPR; parole

 


Mullin v. Doe (Miot), No. 25-1083 (U.S. June 25, 2026)

  • TPS; jurisdiction; determination; termination; preliminary relief; equal protection  

 


Mullin v. Al Otro Lado, No. 25-5 (U.S. June 25, 2026)

  • canon against surplusage; presumption against extraterritoriality

 


Garcia Corrales v. Blanche, No. 24-6467 (9th Cir. June 24, 2026)

  • motion to reopen dismissal for untimely appeal; mailing delay; new evidence; motion to reconsider not only way to challenge dismissal

 


Hayles v. U.S. Att'y Gen., No. 24-10516 (11th Cir. June 22, 2026)

  • petition for review CAT; FARO; Riley; frivolous PFR; jurisdiction; brief cannot cure jurisdictional deficient PFR

 


Matter of P-A-C-, 29 I&N Dec. 708 (BIA 2026)

  • discretionary denial of asylum where withholding of removal granted; multiple DUIs; fraud as negative discretionary factor for asylum
  • Immigrants' List

 


Matter of T-A-G-, 29 I&N Dec. 715 (BIA 2026)

  • ACA pretermitting asylum application; collateral relief; pending I-130

 


Matter of Best, 29 I&N Dec. 723 (BIA 2026)

  • extreme hardship; § 212(h) waiver; discretion; arrests and convictions

 


Matter of C-L-R-, 29 I&N Dec. 726 (BIA 2026)

  • M-A-M- safeguards; qualified representative; refusal to sell drugs; mental health claims in Honduras

 


Matter of G-L-C-, 29 I&N Dec. 717 (BIA 2026)

  • drug delivery and particularly serious crime; N-A-M- element one; nature of the offense; Penn. Cons. Stat. § 780-113(a)(30); transgender women in Jamaica; United Kingdom’s Home Office reports




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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 e-immigration. Here's something the immigration law world doesn't say enough. Some of the most important people in your practice don't have their names on the door. We're talking about the unsung heroes, the paralegals managing cases, calming clients, and catching errors before they escalate and holding the entire workflow together. That's why e-immigration created the Heroes Spotlight, recognizing the top immigration paralegals making an impact across the industry. I bet you're already thinking about someone. Head to heroes.eimmigration.com for more details and to nominate them for their moment in the Heroes Spotlight. Nominations close September 25th. 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 and 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, 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. Oh my goodness, folks. Just a gut-wrenching week for non-citizens. But hey, also this week the Ninth Circuit denied a petition for a bank rehearing on the uber important FTCA decision regarding jurisdiction and wrongful removal from episode 279, Ibera Perez, the United States. All told, there were 12 decisions this week, the ones that I'm actually gonna do, not the ones discussed at the top of this episode. I don't want to do that to you, that is 12 decisions, so I pushed two crimination decisions to next week. Please forgive me my insolence. As you know, the U.S. Supreme Court went nuts, and so that's taken a lot of time this week. But also this week, in Make the Road New York be Mark Wayne Mullen, the DC Circuit vacated a lower court stay, permitting the Trump administration to apply the NA's expedited removal proceedings to the quote, maximum extent allowed by Congress, end quote. Specifically, a majority of the panel determined that the 2025 Huffman memo, expanding expedited removal nationwide to non-citizens who cannot demonstrate continuous physical presence for two years, is not a violation of due process. This is what happens when a maximalistically cruel executive is provided the draconian tools legislated by Congress in 1996 and earlier, and that remain on the books somewhat untested. Comprehensive immigration reform is and has always been the answer. I bet you kind of all forgot about the DC circuit, though, after what the Supreme Court did on Thursday, which of course we're gonna get to. Also this week in state of Texas v. Department of Justice, the same day that the lawsuit was filed, a district court entered a final order in the lawsuit. The result? The federal government is now permanently enjoined from quote, promulgating regulations that permit immigration judges the authority to administratively close removal proceedings without reaching the merits of a case absent an express statutory basis to do so, end quote. So that's how they're gonna get at the Biden arrow regs. An agreement tethering admin closure to an express statutory basis. I don't know. Doesn't seem like how losses are supposed to work, and seems absolutely wild. I feel like this story is only beginning. Back to the cases that I'm doing this week, I have 10 for you because again the Supreme Court and the BIA went nuts. And that's with me pushing those other two to next week. In totality, this might be the most depressing week I've ever done on the podcast, though there is still one win for non-citizens. This is not an episode that will cheer you up. It might make you feel hopeless, which I admit a lot of us on the MIOT team are feeling at present. But that's what they want. I know this intellectually, and I know you do too. I'm sure that I'll wake up on Monday next week ready to begin again. Trust that you'll do the same, bearing witness all the while to the fact that real, real harm is about to hit the immigrant communities in America that we serve and that we call our neighbors. And so with that, let's do these cases.

Blanche v. Lau, No. 25-429 (U.S. June 23, 2026)

SPEAKER_00

This is the first of the three immigration Supreme Court decisions this week. They're all really bad, so might as well easy in with the shorter, astonishingly less horrifying one. This case is about applicants for admission. It vacates Lau V. Bondi out of the Second Circuit, episode 254. Justice Thomas authored the majority opinion with Justice Jackson in dissent, joined by Justices Kagan and Sotomayor. Mr. Lao was from China and became a lawful permanent resident in 2007. In 2012, he was charged in New Jersey with trademark counterfeiting. While awaiting trial, Mr. Lao temporarily left the United States to visit China. On June 5th, 2012, he attempted to re-enter the United States by presenting himself to a border officer at JFK International. Usually returning LPRs are just let in. Unless, of course, they satisfy a provision at INA section 11813C that permits DHS to treat them as an applicant for admission instead. And one of those provisions applies where the LPR has committed a crime involving moral turpitude. Because of his pending criminal charge, the JFK officer did not regard Mr. Lau as already being admitted, but instead as an applicant seeking admission. Kind of. Unsure what to do because there was no conviction yet, the officer paroled in this returning LPR, which normally you can't do. You gotta just let in a returning LPR. Quote, parole thus allows the government to pause the inspection at the border and defer it to a later time without having to detain the non-citizen pending a final admissibility decision as would otherwise be required. End quote. This DHS did under INA section 212 D5. Even though, again, under normal circumstances, you shouldn't be paroling in an LPR, you just let him in. That's one of the benefits of LPR status. And once Mr. Lau was convicted, DHS charged him in removal proceedings as an applicant for admission, inadmissible to the United States, rather than as a removable non-citizen, which he wasn't anyway, because a single CIMT conviction committed over five years after obtaining LPR status doesn't make an LPR removable, but it can make them inadmissible if you make them an applicant for admission because they left and tried to come back. Quite the framework. To say that less confusingly, if an LPR leaves the US to go on vacation, as Mr. Lau did, well, they could be in trouble. For reasons that have historic backing but logically make little sense to me, at least in cases like this, the LPR can be in real trouble when they try to return.

unknown

Mr.

SPEAKER_00

Lau is at risk of losing his green card based on conduct that he committed in the US, but if he had not left the US to go on a vacation, could not have resulted in him losing his green card. Now the flip side is that LPR's deemed applicants for admission because of a single CIMT can apply for a standalone 212H waiver if they've got the qualifying relative and can establish the extreme hardship. Not a great flip side, but hey, they can apply for a standalone waiver, which you usually can't do in removal proceedings. Anyway, it doesn't matter unless DHS was right to do what it did. Recall, DHS didn't just let in this returning LPR as normally is required, but it also didn't charge him as an applicant for admission in removal proceedings immediately. DHS just paroled him in and delayed that decision, and then eventually charged him as an applicant for admission. Once an applicant for admission, all the Section 212 inadmissibility provisions apply. Here, Mr. Lau was charged as inadmissible for having been convicted of a single CIMT. The Second Circuit said DHS can't do that. A returning LPR must be let back in as an LPR unless they, at the time of attempted re-entry, fall under an INA section 101813C applicant for admission category. Not so, explains the Supreme Court majority, agreeing with decisions out of the Fifth and Ninth Circuits and not the Second Circuit. To be deemed an applicant for admission under this relevant provision, DHS must establish that the LPR has committed a CIMT. Not convicted, but committed, albeit by clear and convincing evidence. I believe the INA standard is actually clear, unequivocal, and convincing evidence. In any event, quote, nothing in the INA required the border officer to have clear and convincing evidence that Mr. Lau has committed a crime involving moral turpitude before deeming him an applicant for admission, end quote, explains the court. The majority believes that the INA is silent as to DHS's burden at the border in this situation. Rather, the government's clear and convincing evidence burden only applies at the time of the eventual removal hearing. No discussion by the Supreme Court that once DHS charges a returning LPR as an applicant for admission, the returning LPR is subject to mandatory detention, should DHS so choose. And now it need not meet a clear and convincing evidence, or dare I say clear, unequivocal and convincing evidence standard before it mandatorily detains a returning green card holder? The airport cop just needs to suspect, think, postulate? The court is unclear. It's weird to me and to the dissent. How would a border officer know whether a non-citizen, quote, has committed, end quote, a CIMT, as Section 11813 C V requires, without a conviction or admission of guilt? Because a charging document is simply just that an allegation. What is the standard for these border cops? Seems like a dangerous holding to me. Pretty hard to conclude anything here other than even long-term green card holders are rolling the dice by traveling internationally now. The conviction might not be a CIMT, though. The Supreme Court assumed without deciding and sent the matter back to the Second Circuit. To the dissent. Justice Jackson dissented in an opinion far longer than the majority's, believing the rule insane, and also that the majority ignored the language of INA section 118.13C. Quote, Today the court allows the government to deem an LPR to be seeking an admission first, and justify the applicability of that exception later, undermining the statutory scheme as well as the benefits and security that come with having a green card, end quote. Indeed. What is the standard CBP must satisfy at the border? What part of the majority decision prevents CBP from just saying that a returning LPR falls under a Section 101 A13C provision and then detaining them mandatorily for like three to four weeks before OPLA gives removability a shot before an IJ? Even if OPLA loses, or even if they give up before the final hearing because the allegation at the border is so absurd, DHS milks a few weeks of detention out of a non-citizen. And surely some LPRs will simply give up in the airport, no matter how unmeritorious the allegation is to avoid detention. Or as Justice Jackson says it, quote, in the worst case scenario under today's holding, the government could merely assume at the border that any one of the six exceptions apply to an LPR without any evidence, and prove the applicability of the statutory downgrade at a later removal hearing, using evidence accrued in the meantime. The majority's view also cannot be how Congress, the same one that took care to protect an LPR's already admitted status at the border, meant for this to work. A demotion to the status of seeking an admission is not costless. Quite to the contrary, it comes with significant deprivations. End quote. The burden completely shifts based on no evidentiary standard. Simply because an LPR left the US and a border officer made a standardless decision? This is a big deal decision. LPRs put everything at the risk now to travel abroad. Hope I'm wrong. Don't think I am. Justice Jackson is quite smart. Quote, I worry that the court has now handed the government a massive blank check. End quote. Rights to the dissent. And that is Blanche D. Lau.

Mullin v. Doe (Miot), No. 25-1083 (U.S. June 25, 2026)

SPEAKER_00

Okay. Next is Mark Wayne Mullen v. Doe, also the Miode case. Published by the US Supreme Court on June 25th, 2026. Well, folks, it happened. The temporary protected status case is lost. Justice Alito authored the majority opinion, but doesn't have a majority for part Triple IA. Justice Thomas concurred to explain that he would have ruled even worse for the TPS holders. Justice Kagan, joined by Justices Sotomayor and Jackson, dissented. The respondents in this case are Syrian and TPS holders. They're the respondents because they keep winning below. Our firm, along with many others, represented the Haitians. Beginning in the first Trump administration, and certainly during Trump too, multiple courts enjoined, set aside, what have you, the DHS Secretary's termination of TPS for Haiti as well as for other countries. All courts have held that they have jurisdiction to entertain these lawsuits. On Thursday, the Supreme Court said, We're right and you're wrong. No court has statutory jurisdiction to entertain these lawsuits. One million people or so are now subject to possible removal, with hundreds of thousands likely subject to mandatory detention, particularly in the circuits that have affirmed the Iwe mandatory detention reinterpretation, but also everywhere, given that many of these TPS holders were at one point paroled into the United States. The majority holds that the statute precludes review of the DHS Secretary's determination to terminate TPS, even if she violated the statute or regulations to do it. The Supreme Court literally does not care. Justice Alito also states that, quote, the sole constitutional claim before us will likely fail. End quote. And he has a majority for that sentence. Let us begin. Congress created TPS and a Republican president signed it into law. Congress sought to make formal what the executive had been doing for decades. Let non-citizens stay in the US temporarily when warranted as a matter of humanity. Before 1990, it was all completely at the executive's discretion, explains the court. TPS changed that, created rules that the executive needed to follow. By the way, a lot of the court's background here came from a 1986 Michigan Law Review Note. So for all of you law students and academics out there thinking that no one, literally no one, will ever read your note, Hope Springs eternal. Hats off to you, El Oswald, your note's day has finally come 40 years later. Gotta be a good feeling. Justice Salito explains that the decision to designate a country with TPS is quite discretionary and dependent on circumstances in those countries limited by statute. The TPS plaintiffs have never disputed this. And quote, once a country receives a TPS designation, certain nationals of that country living in the United States without another lawful immigration status qualify for work authorization and immunity from removal, end quote. Before Trump II, that number was about a million human beings, some having been here for decades. And pursuant to the Sanchez v. Majorcus decision from a few terms ago, those TPS holders lack a path to adjust to LPR status, even if they have a U.S. citizen petitioner, unless perhaps they have left and returned on advanced parole or the special TPS parole, an issue we do not have time to get to now. Or of course, unless they entered on a non-immigrant visa initially. Anyway, the secretary must review whether a country should still have TPS at least every 18 months. If the secretary does nothing, the designation is automatically extended another six months. But here's the crux of it all. The statute reads that, quote, judicial review of any determination of the DHS Secretary with respect to the designation or termination or extension of a designation of a foreign state, end quote, is prohibited. Justice Alito laments that some countries have had TPS for a long time. Somalia, I believe, is the longest, having been designated in 1991. That does not, however, mean that Somalias who came, say, a couple years ago can benefit, but it does mean that those who had TPS since 1991 or since any later redesignations can stay. Justice Alito also seems annoyed that lower courts didn't get the point from the court's shadow docket type rulings from last year. Syria was designated TPS in 2012 at the beginning of the Civil War. Haiti designated in 2010 after the horrific earthquake, and was later redesignated because of the cholera epidemic that the UN accidentally brought to that country, I think a hurricane, as well as some other reasons. During Secretary Gnome's most recent termination of TPS for Haiti, the DHS Secretary didn't even really try to assert that things had gotten better in Haiti as the statute would seem to require. In fact, much of her memo made quite clear and relied on the fact that things had gotten worse. She ostensibly based her termination on the fact that longtime TPS designations are not in the U.S. interests, and that Haitian immigrants aren't great in her opinion for a variety of reasons. To paraphrase, read her termination yourself and decide. We sued under the APA and U.S. Constitution. Our plaintiffs are wonderful people. Check out District Court Judge Reyes' decision for a description of them, as well as episode 302, summarizing her decision. The Syrians sued under the APA and the Equal Protection Clause too, but unlike the Haiti case, the District Court didn't rule for them preliminarily on the Equal Protection Claim. We did get that ruling, though. Judge Reyes stayed the February termination for Haiti a day before it was going to go into effect, if I remember correctly. Haitians in Springfield, Ohio, remember the cats and dogs thing, and likely other cities had stocked up on weeks' worth of food and made arrangements to have their children cared for by others in the community. Hotels in the small town of Springfield were nearly all booked up, with what everyone believed were ICE officers ready to start detaining the town. A divided DC panel affirmed Judge Reyes' set-aside. The Supreme Court does not mention that the TPS statute requires that the DHS Secretary do certain things and make certain findings before coming to a determination, including when not limited to consulting with the Department of State before terminating TPS. This is an uber-important part of the case, but the majority ignores it, as it holds that there is no jurisdiction to consider any violations anyway. So, everyone agrees that the statute precludes a federal judge from, say, disagreeing with the DHS Secretary's view that conditions in Haiti are perfect, and so it's safe to return TPS holding Haitians to Haiti. Personally, I'd have written a statute that did permit such a review, but I was not in Congress in 1990, and no one's disputing that that can't be challenged. But what about the process or lack thereof used by the Secretary to get to the determination? Like here, where the evidence undeniably shows that the Secretary didn't consult with the Department of State at all, as the statute requires. Truly, read the New York Times article based on discoveries submitted to ACLU as part of their TPS lawsuit and find out what happened factually. And that's just the tip of the iceberg. We're not even really deep into discovery yet. Such process-based claims have long been reviewable. No longer. At least with TPS determinations. Four. Without quotation but citing two dictionaries from the 1980s, the majority states that the term determination, quote, may also be used to describe the chain of events leading up to a decision, end quote. The court then quotes Patel from 2012 to note that the word generally has a broadening effect, which really is just a knife in the KKTP heart, that. Because remember, we're trying to figure out what determination means in the jurisdiction stripping provision of this statute. Even if Secretary Gnome literally violated every statutorily prescribed step in the process and admitted it on live TV, the jurisdiction stripping provision's use of the word determination strips courts from inquiring and doing anything about it, explains the court. This despite the presumption of judicial review. The text is clear to the majority. To me, the best arguments for review, and an argument that literally all courts have agreed with, relies on IRA's 1991 win before the Supreme Court in McNary v. Haitian Refugee Center, along with the 1986 decision Bowen v. Michigan Academy of Family Physicians. Did you catch the Haitian thing? IRA and a lot of people have been arguing these cases on behalf of Haitians for a long time because certain administrations seem intent on always screwing the Haitians. The Supreme Court has narrowed those decisions. Review of the process was permitted in McNary despite an amnesty statute that barred, quote, review of a determination respecting an application for adjustment of status under, end quote, that program, except for in removal proceedings. So despite that, review of process-based claims was permitted. But the phrase an application is critical to the majority. It refers to a single act, a single non-citizen's application, in that case for amnesty. Because of that, though, the non-citizens were able to bring broad challenges to the procedures used to implement the amnesty program. Still, to the majority, the use of the phrase an application is key. To be honest, I don't quite understand why. It's not explained very much by the court, but that's the holding. And that's kind of massive, as I doubt any INA provisions have the word an application in them anymore. So, like, our McNary challenges dead? Hope not. Other arguments rejected by the majority too. If you're horrified by what this means, go to Congress, not to the courts, states the majority. We now come to part III A of the decision, the Haiti Equal Protection Discussion, for which Justice Alito has only three justices. But I mean four justices ain't nothing. In that part, four justices explain that even Congress can preclude judicial review of constitutional claims, but that its intent must be clear. Seems like no one except Justice Thomas is willing to go that far with the text of this statute, at least yet, but the four justices explain that regardless, it thinks the equal protection claim will ultimately fail on the merits, contrary to what Judge Rayce has held preliminarily. And that part actually goes back to a majority, that's part triple IB. Even assuming the more favorable Arlington Heights standards for such equal protection claims, the claim fails. And by the way, the fact that I'm even talking about Arlington Heights as the more favorable equal protection standard is just wild and a reflection of how far we've come from the Warren Courts and Justice Brennan and the like. But it is more favorable than the insane Trump the Hawaii, extremely deferential to the executive standard. Despite the horrific statements about Haitians that Mr. Trump and Miss Gnome have said over the years, the majority doesn't see a race claim here. More like a quote, strong objections to immigration, end quote, explains Justice Alito. Though, yes, quote, some statements malign Haitians who have come to the United States, end quote. None of it overtly racial to the majority. Need to use that magic word, it would seem. I don't know how else to interpret this, guys. Before returning to that, the majority displays some empathy. Quote, poverty and deprivation are no reflection on character, and there is no justification for denigrating the character of Haitians who suffer from and bear no responsibility for their country's ills. Due in large part to the difficult conditions at home, many Haitians have come to the country throughout our history. And beginning with the more than 500 Haitians who fought to support American independence at the Battle of Savannah in 1779, Haitians have made many positive contributions to the U.S. from the very beginning, and they continue to do so today. End quote. But Mr. Trump's vomit mouth? Well, quote, political discourse by prominent public figures is increasingly couched in terms that would have scandalized the public just a short time ago, and the statements cited by Miyote respondents, especially those concerning Haitian Haitian immigrants to this country, exemplify this development. End quote. I mean, are we going to really label everyone as saying it, or is it really a Trump problem? It's kind of more like a Trump problem. No mention of eating the cats and dogs either. Hard to really explain why that's not racist, I think, but I don't know. I'm not a justice. In any event, notes the court, the fact that the Trump administration has terminated like all the TPS countries, and most of those countries aren't inhabited by predominantly black people, cuts against a race-based motivation to the court. Expanding it to non-white instead of black as we did, Justice Alito is skeptical, as he was at oral argument. Ukraine is white and it hasn't been terminated yet, but also it hasn't come up for review yet, explains Justice Alito. Terrible human, Mr. Trump? Maybe. Justice Alito doesn't say. But racially terrible? Not overtly so, so no claim to the court. Technically, we can pursue discovery, I guess, in our equal protection claims in the Haiti case, but this is a rough decision, and I don't know what's going to happen next. And that was a lot. I've spoken forever. Give the strict scrutiny professors a listen if you want more, for they are far smarter than I. I do like how they summed up the majority's equal protection logic, though. Quote, the xenophobia cleanses the racism, end quote. I don't want to even give the majority that because I think the racism is clearly present alongside the xenophobia, but it is an amusing line. Justice Thomas, in concurrence, would hold that the statute bars equal protection claims, the statute itself. And get this, regardless, would hold that non-citizens have no equal protection rights to bring against the federal government ever, even when inside the United States. Indeed, it appears that Justice Thomas doesn't believe that anyone can sue the federal government for an equal protection violation. That 70 years of precedent applying the 14th Amendment Equal Protection Clause to the federal government through the Fifth Amendment is wrong. Love that guy. Justice Kagan's dissent? Well, I've been talking too long. She agrees with the Mihote plaintiffs, as do her two colleagues. She also string cites the president's horrible comments about Haiti and Haitians over the years. And I mean if, quote, poisoning the blood of our country, end quote, is not racist, I'm not sure what is. I mean, I know one word is, and I know at least Justice Alito thinks that one word is, I guess, but I don't know, guys. The dissent also discusses the plaintiffs as human beings. A dark week for jurisprudence and the one million human beings whose lives were just up-ended in a terrifying way. And we're not done with the Supreme Court yet. And that is Mark Wayne Mullen, the Doe, and meode.

Mullin v. Al Otro Lado, No. 25-5 (U.S. June 25, 2026)

SPEAKER_00

Rounding out the Supreme Court, we have Mark Wayne Mullen the Altrelado, published by the U.S. Supreme Court on June 25, 2026, same day as the TPS decision. This is the asylum metering case. It became totally moot years ago, but the court took it up anyway. Justice Alito again authored the decision. Justice Thomas again concurred to argue for an even harsher rule. Justices Cag and Sotomayor and Jackson again dissented, this time with Justice Sotomayor authoring the dissent. So if you're counting, all three of the justices in dissent have now authored an immigration dissent this week. It's largely about INA section 208A1. Under that statute, quote, any non-citizen who is physically present in the United States or who arrives in the United States, whether or not at a designated port of arrival and including a non-citizen who is brought to the United States after being interdicted in international or U.S. waters, irrespective of such non-citizen's status, may apply for asylum in accordance with this section or where applicable, Section 235B of this title. End quote. The key part of that statute is who arrives in the United States. The first Trump administration wanted to just turn away asylum seekers at the U.S.-Mexico border. They argued they could do that because as they hadn't yet arrived in the U.S., they weren't eligible to apply for asylum, and the U.S. government didn't have to consider their application. What then does it mean to quote, arrive in the United States, end quote? Justice Alito and the majority say it means actually being physically inside the United States, overturning the Ninth Circuit. Piecing together the applicant for admission definition with INA Section 235 provisions, the majority explains that the phrase, quote, arrives in the United States, end quote, is inextricably linked to the point at which a non-citizen is or has a right to be inspected. Quote, in sum, a non-citizen that arrives in the United States is entitled to inspection, is deemed an applicant for admission, and may apply for asylum. By contrast, until a non-citizen arrives in the United States, he's not entitled to inspection, is not an applicant for admission, and cannot apply for asylum except on other grounds not at issue here. End quote. That's the legal landscape adopted by the majority. Factually, the metering or turning away of people at the border actually began at the end of the Obama administration, but it was jacked up almost beyond recognition during Trump won. Quote, the number of non-citizens seeking to enter sometimes far exceeded the number CBP could properly process. Long delays slowed the inspection process, and in the meantime, CBP sometimes ran short of chairs, meals, and beds. The resulting conditions were often unsafe for non-citizens, and they rendered border facilities unsecure. In November 2016, DHS responded by adopting a policy of metering the number of arriving aliens who CBP would inspect each day and allow to apply for asylum. To enforce the policy, officials stood on the U.S. side of the border and prevented entry into the United States by more non-citizens than the port could adequately process. End quote. Again, that was the Obama version. The Trump one appeared to be intended to be much more of a deterrent. A death by a thousand cuts way to stop asylum. I believe there are internal memos making that pretty clear that the Trump administration was just abusing this thing. And does anyone really doubt it? A district court certified a class action and issued class-wide relief. A split ninth circuit affirmed and the Biden administration revoked the metering policy. Yet here we are. Got across the border to be a non-citizen who, quote, arrives in the U.S., end quote, holds the Supreme Court. Quote, to arrive is to reach a destination, end quote, reasons the majority. Quote, a running back does not arrive in the end zone when he reaches the one-yard line, end quote. Doesn't matter to the majority whether the reason the non-citizen isn't physically in the end zone is because a CBP officer is blocking her way. To mix up metaphors. The absence of INA provisions outlining a framework for attempted entries into the U.S. in this situation supports this reading to the court, particularly as other sections of the INA do cover attempts in other circumstances. A lot of this also comes down to how the majority reads the word in. Man. These consequential immigration decisions turning on one little word over the years. What a profession. Looks like Al Adelado's principal argument depended on the canon against surplusage. A great canon, some say the best. Recall, the statute permits a non-citizen to apply for asylum not only when he arrives in the United States, but also if he is, quote, physically present in the United States, end quote. Seems like the court is now saying those two phrases mean the exact same thing. And that, the canon against surplusage, indicates that the court should not do. It would make the two phrases surplussage. But quote, the anti-surplessage canon is not an iron rule, end quote, citing Justice Scalia. Quote, even excellent writers do not always trim every unnecessary word, and the same is true of Congress, end quote. So it's not the best canon. Actually a subordinate canon to the quote cardinal canon, end quote, that, quote, a legislator says in a statute what it means and means in a statute what it says there, end quote. But isn't the point of all these canons to figure out just that? What Congress said and what it means? Is that really a canon? Or is that just circular reasoning? Then, of course, there's the presumption against extraterritoriality, explains the court. Who could forget that presumption? That is, that statutes generally aren't to be given effect outside the U.S. absent clear congressional intent. Rejecting some policy and other arguments, the majority hands the Trump administration a massive weapon to prevent asylum seekers from seeking refuge in this country. Then again, quote, if the government ever adopts the sort of policy that respondents fear, we're confident it would be quickly challenged. End quote. Can't wait. And the word challenge is doing a lot of work in that sentence, right? Justice Thomas concurred to say that the district court probably couldn't do what it did procedurally and as a matter of the Constitution, while Justice Sarmayor and the dissent are horrified. It is a massive dissent, and I cannot do it, unfortunately, given the week we have this week. Give it a read. But suffice it to say, quote, the consequences of today's decision are predictable. More people will die. End quote. Ira had time to read the dissent, though. He writes how the dissent explains that, quote, when reading it in the context of the statute, the phrase arrives in is meant to reach a destination, and therefore includes the applicant reaching a port of entry where they were turned back. Relying on the inspector general's report and whistleblower testimony, Justice Sotomayor found that officers were not turning people around to the border for lack of capacity, but that they were told to lie to them, simply to turn them away. The dissent recognized that the majority's interpretation of the statute's best limitless discretion in the executive branch to abandon its inspection and processing duties. End quote. And although I hesitate to think about the future, I cannot help it. When the court inevitably takes up the Iwee bond issue next term, this decision will surely play heavily. I'm not entirely sure what to make of it, but here are some things that give me worry. Quote, the meaning of the phrase arrives in the United States accordingly determines whether and when the government must inspect a non-citizen seeking to enter the country. End quote. Might a Justice Alito next term rely on that sentence to say that uninspected non-citizens have not arrived in the U.S. as a matter of law and so are continuing to seek admission, meaning that they fall under the Section 235 mandatory detention provision? Hope not. And there's a whole bunch of ordinary meaning analysis in this case, which shouldn't be the case with the Iwe detention issue, given that applicant for admission and the word admission are statutorily defined. But seeking is not. Now I think that the ordinary meaning of seeking supports bond for EWEs. Think of the Yankee Stadium hypothetical from the Second Circuit. Someone who sneaks in and sits in a seat for like eight innings is not seeking admission to the game. Also concerning is all the canon against surplusage stuff, which I believe has played heavily in the IWI bond analysis. That is, that seeking admission must mean something different from applicant for admission. Very concerning, quote, a careful writer or drafter of statutes may sometimes include language that is not strictly necessary in order to make an important point as clear as possible. End quote. Don't love it. Though I'm positive that one of the circuits that has not yet spoken on the Hurtado question will do so soon and incorporate this decision. So people smarter than me will have preliminary answers soon. Whatever. Enough of this. See you next term, Supreme Court. May this be the end, and may the birthright citizenship decision be uneventful. And that is Mark Wayne Mullen, the El Ultralato. 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. 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Garcia Corrales v. Blanche, No. 24-6467 (9th Cir. June 24, 2026)

SPEAKER_00

Alright, here's our non-citizen good for the week, Garcia Conradas B. Blanche, published by the Ninth Circuit on June 24th, 2026. This case is about motions to reopen.

unknown

Mr.

SPEAKER_00

Garcia is from Mexico and entered the United States without authorization as a child. He lost an asylum case in immigration court. His counsel mailed a notice of appeal to the BIA ten days before the appeal deadline. For reasons unexplained, that mailing was not delivered to the BIA for a month and a half. The BIA therefore dismissed the appeal as untimely. Nightmare. Mr. Garcia timely moved to reopen that denial. He did, after all, quite timely mail the notice of appeal, and he is not at fault for the forty-two-day delay it appears. And the tracking history supports his story. Motions to reopen must be filed within ninety days and be based on new evidence or law generally. Mr. Garcia styled his motion as a motion to reopen, but the BIA deemed it a motion to reconsider. And those must be based on an error of fact or law in the initial decision and be filed within 30 days. So by that reasoning the motion was untimely. Denied. Gotcha. One less case to deal with. The Ninth Circuit disagrees. This is plainly a motion to reopen, not a motion to reconsider. It was called a motion to reopen. More importantly, it was based on new evidence, the tracking information, and other evidence that the mailing was timely mailed. Obviously, that couldn't have been submitted before the notice of appeal, so that's a pretty strong indication that it's not a basis for a motion to reconsider to the Ninth Circuit. A motion to reconsider is not, explains the court, the sole and always proper way to challenge a summary denial of an untimely appeal. Instead, even for dismissals by the BIA based on timeliness, quote, a motion to reopen is the proper vehicle to challenge the dismissal when the challenge is premised on evidence not previously before the BIA. End quote. Also, if the BIA truly intends to deny this properly construed motion, it better explain itself well, explains the Ninth Circuit. As such, congratulations, Jessica A. and Lou for petitioner. And that is Garcia Carras v. Blanche.

Hayles v. U.S. Att'y Gen., No. 24-10516 (11th Cir. June 22, 2026)

SPEAKER_00

Next is Hale's v. U.S. Attorney General, published by the Eleventh Circuit. Seems like a lifetime ago that I read this decision on the Monday of the week. The Eleventh Circuit has entered the Riley issue. That is, jurisdiction to review withholding of removal and convention against torture denials post-reinstatement of a final order of removal. Judge Abudu concurred and dissented in part. And what a week to issue something like this. Hey guys, we are all just living in the court's world. By its own statement, the 11th Circuit largely has agreed with the Ninth Circuit's decision in Neverete Vibandi, episode 309, which I understand may be going to inbakri hearing, though. I spoke about this issue at length with Trina Romoto from Nyla at the Ayla conference, who reminded me that I should be careful to distinguish jurisdiction from timeliness and claims processing rules. She also told me that many of you reached out to her about her failure to email me, even though I said in that same decision that she emailed me timely thereafter, and well, that brings me a lot of joy. Thank you all. I know you've got my back. And thank you to Trina for guiding me. I think it helped me do this decision better. The Eleventh Circuit held that it lacked jurisdiction. So, Mr. Hale's got order removed after being convicted of and spending time in prison for voluntary manslaughter. Ice did it itself, the removal order, deemed his conviction an aggravated felony. So it's an Ice Pharaoh, which is the context that Riley itself arose. Was in, not the similar reinstatement of a prior removal order issue. Those are the two contexts that this issue is coming up in, this being a pharaoh.

unknown

Mr.

SPEAKER_00

Hales expressed a fear of returning to Jamaica and was placed in withholding only proceedings where he applied for withholding of removal and convention of sorts of protection, but his claims were denied. By the time the IGA denied, it was November 2023. Naturally, however, DHS had issued its pharaoh in July 2023. Because this was all pre-Riley, and who in their right mind would have thought that you need to petition for review the pharaoh before the withholding only proceedings conclude?

unknown

Mr.

SPEAKER_00

Hales filed a pro se petition for review. Seems like that petition for review was filed within 30 days of the cat denial, but of course, not within 30 days of the Pharaoh. To be clear, not the Egyptian kind, this is an acronym. I'm leaving that joke in. And I'm leaving in me saying that I'm leaving the joke in.

unknown

Mr.

SPEAKER_00

Hales filed a motion to stay as removal, but quote, the stay was denied and he was deported, end quote. The Eleventh Circuit then appointed the University of Miami Law School to represent Mr. Hales. The case wasn't initially about jurisdiction, but it sure became that. Looks like it's not what you Miami signed up for, but it's sure what they got, and I'm positive they did a great job. Still didn't work. Turned into a bit of a trap for the University of Miami and Mr. Hales. No jurisdiction because of Riley, explains the Eleventh Circuit. Considering three jurisdiction stripping provisions on the Supreme Court's Nasrala decision, the 11th Circuit explains that, quote, we lack jurisdiction over any petition for review that does not challenge a final order of removal, even if the petition challenges the separate denial of cat relief, end quote. INA section 242A1 tethers circuit jurisdiction to final orders of removal, and under Riley, in order denying cat protection isn't a final order of removal. It just decides whether to withhold or defer one. Now the zipper clause at INA section 242B9 saves jurisdiction to review questions of law and fact relating to the denial of cat protection, but only when tethered to a final order of removal challenge, explains the 11th Circuit. In so holding, the 11th Circuit enters a circuit split on the side of the Ninth Circuit, but against the wild Third Circuit decision that we discussed two weeks ago. And again, the Ninth Circuit might be going in bonk. This means you've got a petition for review the Pharaoh, and Mr. Hales did not do so. To the extent, quote, we in the Supreme Court have exercised jurisdiction over such petitions, end quote, including in Riley itself. Well, those decisions didn't tango with the precise issue, so it's not binding precedent on the jurisdiction question. Got a petition for review the pharaoh, and I don't know, asked to hold it in abeyance, pending a decision in the withholding only proceedings? Crazy framework that the Riley Court has created. Probabl counsel argue that Mr. Hales, though really them, should therefore be permitted, though, to amend his petition for review to challenge the July Pharaoh. Can't do it, held the 11th Circuit. It's the initial petition for review wherein jurisdiction vests, and that initial petition for review failed to vest jurisdiction. Even though courts review pro se filings liberally, there's no way Mr. Hales challenged the pharaoh in his November 2023 petition for review of the CAT denial, which would have been untimely anyway, it seems. He clearly meant to challenge only the cat denial to the court. Also, you surely can't use briefing to amend a petition for review either, explains the 11th Circuit, because again, it's the petition for review itself that defines jurisdiction. Important thing is those one-page petitions for review. And oh boy, here comes the 11th Circuit with some very bad heat in the alternative. Quote, because his challenge to the final order of removal is frivolous, it could not invoke our jurisdiction, end quote. Obviously, this is all happening well after the petition for review time period, but that quote remains. Is the 11th Circuit saying that even if you do everything right and petition for review the Pharaoh to try to preserve jurisdiction for withholding of removal or cat protection denial, you're still gonna lose unless you have a non-frivolous challenge to the pharaoh itself, that is the removability? Restated, are people who are ordered removed in the pharaoh context for, say, a per se aggravated felony at a loss for jurisdiction to later challenge a cat denial, even if they timely petitioned for review of the pharaoh? If that's the case, that's wild and very scary. Seems like Judge of Budu would agree in large part with the Third Circus Laureano decision. Riley too, coming to a Supreme Court near you? And that is Hales, the US Attorney General.

Matter of P-A-C-, 29 I&N Dec. 708 (BIA 2026)

SPEAKER_00

What's that you say? You want five BIA decisions ruling against non-citizens? Well, I've got just what the doctor ordered. First, matter of PAC published by the BIA. This case is about asylum denials. Much more interesting issue than other similar cases of late, though.

unknown

Mr.

SPEAKER_00

Pack is from Cameroon and overstayed a non-immigrant visa in 2001. After many years and a fairly substantial hearing, an immigration judge granted him withholding of removal. The IG did not, however, grant asylum. Nor did the IJ grant adjustment of status or cancellation of removal, the other forms of relief that he applied for. All of that was denied as a matter of discretion. Asylum is, after all, discretionary. That means Mr. Pack can never be an LPR. Can't really travel either. Worse still, give the new Trump administration cruelty, he can be physically removed to anywhere else other than Cameroon. That was always the law, but never actually employed. Employed it is now. So Mr. Pack appealed the denial of the discretionary relief. The BIA affirmed the denial of asylum. Now I've always understood that given the nature of what asylum is designed to protect, matter of pula and other case law held that you've got to have a pretty bad adverse factors to deny it. Like, this is not the same as denying non-LPR cancellation of removal as a matter of discretion. The new BIA states, however, not quite as firmly that, quote, where past persecution is found, humanitarian considerations if the applicant were to return to the country of persecution may play an important role in the discretionary analysis, end quote. What bad factors are the BIA concerned with generally? Quote, adverse factors can include criminal and fraudulent conduct that falls short of a ground of mandatory asylum denial, end quote. You may be asking yourself, wait, Kevin, isn't there a lot of case law excusing fraud committed by people fleeing for their lives? Indeed there is, discussed on this very podcast. The BIA notes some of it in a footnote stating, quote, while the use of fraudulent documents to escape persecution is generally not a basis for a discretionary denial of asylum, fraudulent conduct that is not directly related to escaping persecution is a proper consideration. End quote. Some wiggle room there to use for an adverse IJ, but a recognition nonetheless. So too, quote, the circumstances surrounding the applicant's entry or attempted entry into the U.S. before asylum may be warranted, including whether the non-citizen followed orderly refugee procedures that were available in countries a non-citizen passed through, end quote. Those can be considered, as can whether there's a safe third country for the non-citizen. Also, gang membership and involvement are adverse factors. Gotta be reliable evidence, though, explains the BIA in a footnote, citing to that very important Diaz or TSV Garland decision from the First Circuit in episode 90. Is someone at the BIA listening to the podcast? Don't make me blush. And here's the real holding for this decision, quote, the fact that a respondent is granted withholding of removal is an important consideration in whether the respondent may be denied asylum as a matter of discretion based on a weighing of the favorable and adverse factors, considering the mitigating impact a grant of withholding of removal has on the risk of future persecution. End quote. If that seems pretty cruel to you, you're not alone. The logic goes here that Mr. Pack is not going back to Cameroon anyway, so the general feelings from matter of pula about protecting people aren't all that applicable, even though past persecution was shown here. Substantial equities present here, explains the BIA, as it often does of late before deeming them insufficient. Up against those substantial equities are four DUI convictions from 2004 to 2011, including with some aggravating factors. Pretty aggravating too, one involved an accident, another involved damage to a police car. And it seems that Mr. Pack was likely driving for work while his license was suspended for other offenses. So it's all pretty extreme, if you ask me. Remember that. All despite the BIA seeming to recognize that Mr. Pack seems to have rehabilitated and put a lot of effort into it over the last 15 years. But the BIA expressly extends the matter of Castillo-Perez's presumption about two DOI convictions and discretionary relief to the asylum context. This all even outweighs what appears to be significant, quote, persecution and trauma, end quote, suffered by Mr. Pack and Cameroon. Given that he's got withholding removal now from Cameroon, explains the BIA, not going to weigh it very heavily. Implicit in a holding like this would be the BIA's belief that a third country of removal will not simply turn around and send the deportee to their country of origin. We've been hearing of this happening in the immigration community, and given the Trump administration's statements in federal court that it could not so much as facilitate a wrongfully deported man returned from El Salvador, I do wonder what power the BIA believes the executive has to ensure that withholding of removal recipients are not sent by third countries to the withheld from countries. I'll give them the benefit of the doubt and assume that they consider this and know things that I do not know. Onto adjustment of status and cancellation of removal, recall the other forms of discretionary relief applied for? Well, if a non-citizen can't meet the heightened discretionary burden to reverse the denial of asylum, they're not going to meet the discretionary burden on these forms of relief either. All but explains the BIA. Asylum and other relief denied, and Mr. Pack might get detained and removed away from his family based on acts for which he long ago rehabilitated. Who knows? And there's this. In the final footnote, the BIA states, quote, in granting withholding of removal under the INA but denying asylum solely as a matter of discretion, the IJ did not consider the discretionary denial as provided in HCFR section 1208.16E. However, the respondent did not present any family reunification concerns at the hearing and has not raised the issue on appeal. We therefore deem this issue waived. End quote. That is, there is a mandatory regulation that requires reconsideration of asylum when withholding of removal is granted. Seems like Mr. Peck might have some family reunification issues too, maybe? I don't know if technically that's present under the regulation if the family's already in America. But I want to flag this issue for you all. And check out Sath and Trasa, the Attorney General of the U.S. out of the Third Circuit, episode 14, and Tham O'Tor, the U.S. Attorney General, out of the 11th Circuit from Episode 60, for a deeper dive into all that if you're interested. And speaking of PACs and matters thereof, if you'd like to see less of decisions like this and desire comprehensive immigration reform, consider checking out Immigrants List. Link in the show notes. And that is Matter of PAC. Next

Matter of T-A-G-, 29 I&N Dec. 715 (BIA 2026)

SPEAKER_00

is Matter of Tag, D A G published by the BIA. Wildly short case about asylum, so thanks for that, BIA. Sustaining DHS is not at all an ordinary interlocutory appeal of an IJ's refusal to pretermit an asylum application. So no thank you on that one. The respondents are from Belize. Apparently they filed three asylum applications in immigration court proceedings, or maybe somewhere with USAIS. Who knows? Unstated. DHS tried to get rid of all of it on December 31st, 2025, by filing a motion to pretermit, saying, fine, we'll send the family to Honduras or Guatemala or Ecuador. ACA agreements strike again. Now it appears that an I-130 petition is pending that, if granted, might be able to be used to resolve the respondents' immigration statuses in some other way. Unstated in this decision, and it's hard to see how I-130 petitions could be used to adjust in America for multiple respondents who are not currently in lawful immigration status, unless, of course, we're talking about the two parents of a U.S. citizen child over the age of 21, which we very well might be. The decision is scant on details. And if that's true, then well, we're talking about removing somewhat elderly individuals to a developing and possibly dangerous country with which they have no connection, that is Honduras, Guatemala, or Ecuador, despite their child or children living in America as citizens. Unclear. In any event, they need time for the I-130 to be decided. For absurd reasons, immigration law doesn't allow IJs to decide I-130s, be it based on spousal or child relationships, etc. A very simple thing to ascertain in many cases compared to other things IJs must decide every day. USIS is backlogged and perhaps weaponizing I-130 delay to enable ICE to remove more people. Process or lack thereof used as substance. Seems like the respondents actually got that time. As at the January 2nd, 2026 hearing a few days later, the parties agreed to reset the matter to October 1st. The IJ, however, then denied the motion to pretermit, and that is what gave DHS the fast track to the BIA, which is all about granting DHS interlocutory appeals these days, something it would almost never have done for any party in the past. The IJ aired explained the BIA. The IJ denied the motion to pretermit, apparently, by relying on the pending I-130s that might otherwise resolve the case favorably for the respondents. The IJ forgot, however, explains the BIA, that this system is all about removing non-citizens, including asylum seekers, as quickly as possible, without process. Quote, the respondent's potential eligibility for another type of relief is not a factor for the IJ to consider when ruling on a motion to pretermit an asylum application. End quote. Forget family unity concerns or treating people like humans. We need numbers. Families split up and human beings removed quickly, even if it implicates a 10-year bar on returning. Maybe especially if it does. This is especially so here where the respondents are apparently deemed deriving aliens, meaning that only USCIS can adjust them. But of course the IJ could terminate proceedings without prejudice to permit that, per the termination regulations, I believe, if it came to that. No mention of those regulations ever, really, huh? Why bother with the regulations when you can just rewrite immigration law every week without notice and comment rulemaking? Like literally, I just went to HCFR section 1003.18 Double I, and this situation is right there. Unless I'm misreading it. I might be. Of note, nearly every case law citation in this decision is a Trump 2 BIA citation to itself. Nearly. Case remanded, possibly for removal orders. And that is matter of T A G.

Matter of Best, 29 I&N Dec. 723 (BIA 2026)

SPEAKER_00

Moving on to Matter of Best, published by the BIA. We now enter the Wednesday BIA publications. Three of those. Will there be more? Who knows? It's the YOLO BIA. And truly BIA, do you expect IJs to be reading every one of these decisions? I know you don't. There might be some attorney advisors sending out EOIR summaries every week, but you know some IJs and attorney advisors are listening to the pod. I know you know. So are we in a symbiotic relationship, BIA? You issuing horrible precedent, which then does give me content, and me spreading it nationwide like some sort of precedential pollinator? If so, circumstances do indeed make strange bedfellows, and I'm not sure that I like it. This case is about hating on IJs exercising their discretion favorably for non-citizens. Used to not be precedential, now it is, thanks to the acting attorney general or the person acting on his behalf in Falls Church.

unknown

Mr.

SPEAKER_00

Best is from Barbados. Looks like he applied to adjust status, but he has a criminal history, so he applied for an IA Section 212H waiver with that application. Need to establish extreme hardship to a U.S. citizen or LPR spouse parent or child, and actually the BIA first reversed that finding. Very context-specific, so here's the argument as relayed by the BIA. The IJ based the extreme hardship showing on a finding that the quote, wife who pays for the household's expenses will experience financial difficulties that may cause her to be unable to afford to pay her bills, visit the respondent of Barbados, or obtain a master's degree. The IJ also observed that she would experience difficulties planning to have another child with the respondent in the event of his removal. The IJ further found that the respondent provides assistance to his mother's nonprofit organization and wishes to assist her as she ages. The respondent also argued that his children would be emotionally impacted by his removal. End quote. And then there's discretion, which is what the BIA's header actually says the case is about. Recall, now everyone applying for a 212H waiver is always going to have a criminal history. Here, though, we've got two 2017 CIMTs pertaining to theft and deception and access device fraud, a 2017 conviction for resisting arrest, a 2016 conviction for unlicensed operation of a motor vehicle, and a 2014 conviction for disorderly conduct. Also two arrests as a minor and 10 as an adult, some for relatively serious things, including a most recent arrest in 2013 for domestic violence against his wife. The BIA quote emphasizes that criminal conduct which has not culminated in a final conviction for the purposes of the INA remains an appropriate factor to consider in a discretionary determination, end quote. Relying on matter of Thomas, but better peak that recent First Circuit precedent, attorney advisors. Quote, therefore, in the absence of persuasive evidence of rehabilitation, we conclude that the respondent's equities, such as his family and community ties, length of residence in the U.S., plans to establish a career in fashion, and the potential hardship to his wife, children, and mother, do not outweigh his serious and lengthy criminal history, which is a significant adverse factor. End quote. Meaning adjustment to LPR status and a waiver were denied in what is, in my opinion, a bit of an outlier case factually. And that is matter of best.

Matter of C-L-R-, 29 I&N Dec. 726 (BIA 2026)

SPEAKER_00

Continuing on, we have matter of CLR published by the BIA. This case is about safeguards for incompetent non-citizens. Used to not be presidential, now it is.

unknown

Mr.

SPEAKER_00

CLR appears to be in withholding only proceedings. He has, quote, been diagnosed with schizophrenia, post-traumatic stress disorder, major depressive disorder, and mild cognitive impairment, and has experienced visual hallucinations since he was five years old. End quote. He was deemed incompetent to represent himself in immigration court and so was appointed a qualified representative to represent him. Note, not an attorney, it would appear. Withholding removal and cat protection were denied, as was a motion to terminate based, it would seem, on the mental health issues. Termination was properly denied, holds the BIA.

unknown

Mr.

SPEAKER_00

CLR is indeed in withholding only proceedings, we learn, meaning the motion to terminate is now foreclosed by matter of J A N M, episode 287. You can't terminate withholding only proceedings. You can simply withhold or defer execution of the removal order. Or not. And so it now becomes clear what the BIA has been doing with its tsunami of precedent for the last year and a half, laying the groundwork to summarily deny so, so many arguments going forward. That said, even without matter of J A N M explains the BIA, termination would be inappropriate because the safeguards implemented here were sufficient under matter of MAM, matter of ma'am.

unknown

Mr.

SPEAKER_00

CLR got a qualified representative appointed for him, and he even got water during the hearing. That's part of the decision, I swear. Also, he received a recess during questioning and adjustments to that questioning. Quote, we recognize the qualified representative's arguments that she was not able to request certain additional safeguards, such as access to family or caregivers, and that the applicant exhibited difficulty providing specific information even with the existing safeguards in immigration court, end quote. Not bad enough. Begs the question, though, then, do the appointments of qualified representatives and attorneys for mentally incompetent individuals who can't really help their case, particularly when they're detained, help the client in the long run, or does it all hurt them? Withholding of removal denial affirmed.

unknown

Mr.

SPEAKER_00

CLR fears harm from his brother and brother-in-law, who were involved in drug trafficking in the United States, as well as cartel members associated with his brother. His brother and brother in law currently live in Honduras. Now, members of a drug cartel associated with Mr. CLR's brother beat and robbed him when he was removed to Honduras in approximately 2002 because he did not help his brother in prison and refused to help him sell drugs. No past persecution and no nexus to a protected ground, explains the BIA. IA does not believe the IJ was clearly erroneous to have found facts that support the IJ's conclusion that the harm Mr. CLR suffered was motivated by financial gain and retribution from Mr. CLR's refusal to help sell drugs, and that's not protected to the BIA as so stated. As to the mental health base claims, well, Mr. CLR has had mental health issues for a long time, and he was able to live a relatively decent life, at least at points, explains the BIA. That he was homeless at points doesn't mean he'll be persecuted in Honduras to the BIA. And he did not identify, quote, evidence that shows that the attacks against him were perpetrated on account of his mental illness, end quote. Not much more about the facts presented regarding mental health claims in Honduras, so hard to really get into the weeds of the BIA's reasons for ejecting it. On the Convention Against Torture, the IJ properly denied that too. The BIA just kind of restates what the IJ did and says it wasn't reversibly wrong. Here's some meat before we go, quote. The applicant contends that mental health facilities and prisons in Honduras are run by government employees, and there's evidence that people with mental illness experience physical and sexual abuse by criminals and public officials in Honduras, including in mental health facilities. He also contends that country conditions and expert opinion evidence concerning the state of emergency in Honduras, gang violence, and stigmatization of individuals with mental illness show that he is more likely than not to be tortured. However, the applicant's citation to anecdotal reports of torture as well as general country condition evidence of the prevalence of violence is insufficient to establish that he, in particular, is more likely than not to be tortured. End quote. All that stuff. And hats off to you, qualified representatives and attorneys who are being appointed to represent matter of ma'am type respondents. I did it myself for a very short period of time, and it is not easy work. It is also emotionally taxing. So Mr. CLR's removal to Honduras was all but guaranteed by the BIA. And that is Matter of CLR.

Matter of G-L-C-, 29 I&N Dec. 717 (BIA 2026)

SPEAKER_00

If you're still with me, congratulations. You're the real MVP. We conclude with Matter of GLC, published by the BIA. Guess what didn't used to be presidential, but now is this guy. It's about particularly serious crimes and cat protection. Miss GLC is a transgender woman from Jamaica. The BIA footnotes that it is intentionally using the feminine pronoun for her, so at least there's that. An immigration judge granted her cat protection. The BIA is taking it away. She has a conviction for possession with intent to deliver a controlled substance in violation of Title 35, Section 780-113A30 of the Pennsylvania Consolidated Statutes. The BIA previously determined in this case that that's not an aggravated felony, probably because of the delivery thing, if I had to guess. That means it's not a per se particularly serious crime, and that matter of YL doesn't apply. It is, however, under the matter of NAM analysis, holds the BIA now. The first inquiry under the analysis is determining whether, quote, the elements of the offense potentially bring the crime into a category of particularly serious crimes, end quote. And actually, what the BIA held previously is that it's not a per se aggravated felony because, quote, the minimum punishable conduct is distribution of a small amount of marijuana for no remuneration, end quote. So how could that satisfy the first necessary NAM prong? We're about to find out. Well, the BIA believes it proper to, quote, consider the full range of conduct criminalized, end quote, by the statute at this first elements-based analysis, which makes little sense to me. Unlike the categorical approach, I suppose the BIA is saying that the NAM elements-based analysis does not focus on the least culpable criminal conduct. Would love to take this to petition for review if anyone's offering. Having overcome the first NAM prong with no discernible analysis, the BIA proceeds to step two, wherein the adjudicator considers the type of sentence imposed. The sentence here was three to five years imprisonment, and that is significant, explains the BIA. The final NAM element is evaluating the quote circumstances and underlying facts of the conviction, end quote. That often is going to be bad for non-citizens in these cases, and it is here, because IJs can consider all reliable information. Quote, the record shows that the respondent was involved in a car accident in 2010 that caused serious injuries to the other driver. The respondent testified that she has no memory of the circumstances leading to her conviction, and she learned about it through police reports. Police reports provided that a witness observed the respondent after the accident attempting to dispose of a suitcase that was in her vehicle. Police later found the suitcase which contained a large amount of suspected compressed marijuana wrapped in clear plastic wrap, measuring 13 by 22 by 10 inches, that is, which later tested positive as marijuana. Unsure if the BIA or IJA are actually allowed to consider the car stuff because the BIA doesn't rely on it in its actual analysis after stating it. Because Mr. GLC, of course, wasn't convicted for any of that. Unclear, truly. I'm not just being passive aggressive. To the BIA, the problem is the large quantity of marijuana. Marijuana that probably, I don't know, 75% of officials in the Trump White House have done in the past, and that HHS Secretary Kennedy has probably sold in the past. Well, that's the stuff that makes this a particularly serious crime, including Miss GLC's attempt to hide the drugs from law enforcement. And let's be honest, HHS Secretary Kennedy has totally done that in the past, too. Being a particularly serious crime, Miss GLC is barred from everything except cat deferral. The IG didn't reach that because the IJ granted withholding of removal under the INA. But also the IJ denied cat protection previously, and the BIA didn't disturb that the first time around. But also the BIA didn't reach that issue the first time around either. It will do so now. Miss GLC was, quote, mistreated, end quote, in Jamaica six times, but that's not torture, explains the BIA. Also, Miss GLC was, quote, physically unharmed when she most recently lived in Jamaica for six to seven months in 2016, during which time she moved several times. The BIA explains that the United Kingdom's Home Office indicates that LGBT people can move in Jamaica and find safety. Putting aside the distinction between LGBT people and transgender women and the BIA's repeated reminder that cat country condition evidence must be crazy specific to the applicant before them. Well, at least we've got the BIA deeming persuasive the United Kingdom's Home Office reports. Important as the Department of State guts its reports. As reported in 2017, though, in this decision, the State Department apparently noted that the Jamaican government has attempted to address human rights abuses by government authorities, along with some other high-level stuff that the BIA says undermines a CAT claim here. For that and a few other reasons, Miss GLC had her withholding removal taken away and will be sent to Jamaica. And that is a matter of GLC. 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 Curzban, 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. 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