Immigration Review

Ep. 323 - Precedential Decisions: 6/29/2026 - 07/5/2026 (birthright citizenship; bond for EWIs - due process & statutory; credibility; bond venue; withholding-only review & FARO PFR; child endangerment; strict Lozada compliance; reopening)

• Kevin A. Gregg, Esq.

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Trump v. Barbara, et al., No. 25-365 (U.S. June 30, 2026)

  • birthright citizenship; history; Second Founding

 


Sosnava Rodriguez, et al. v. Mullin, et al., No. 26-50183 (5th Cir. July 2, 2026)

  • procedural and substantive due; right to a bond hearing after 90 days; Mathews; fundamental liberty interest for noncitizens; EWI detention; mandatory detention

 


Matter of T-D-E-, 29 I&N Dec. 732 (BIA 2026)

  • credibility; clear error; failure to disclose military service in DS-160; fraud to enter U.S.; corroboration; prior false testimony; Burkina Faso



Matter of Vizcaino Aybar, 29 I&N Dec. 736 (BIA 2026)

  • bond; venue; jurisdiction

 


Riley v. Blanche, No. 22-1609 (4th Cir. July 2, 2026)

  • withholding-only review; jurisdiction; claims processing rule; 30-day petition for review deadline; FARO; final order of removal; clear error; BIA fact finding; BIA stating standard but not applying it

 


Rivera-Mendoza, et. al v. Blanche, No. 21-70107 (9th Cir. June 25, 2026)

  • child endangerment; statutory interpretation; Congressional intent; Cal. Pen. Code § 273a(a); Or. Rev. Stat. § 163.545(1); crime of child abuse, child neglect, or child abandonment; INA § 237(a)(2)(E)(i); Loper Bright; criminal negligence mens rea; actus reas; dictionaries; general intent crimes 

 


Morris v. Blanche, No. 25-3084 (6th Cir. June 25, 2026)

  • firearms offense; motion to reopen; motion to reconsider; ineffective assistance of counsel; jurisdiction as a sword; concessions of counsel; strict Lozada compliance; proof of mailing

 


Santillan Quiroz v. Mullin, No. 26-6019 (10th Cir. June 30, 2026)

  • no mandatory detention of EWIs; Hurtado; seeking admission; INA § 235(a)(2)(B); § 236(a); § 236(c); Laken Riley Act; applicant for admission entry; canon of constitutional avoidance; plain text; statutory interpretation; longstanding agency interpretation; legislative history; use of the word “otherwise”; cannot against surplusage; due process rights of noncitizens




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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. Mid year is a good time to take an honest look at how your practice is running. Are there bottlenecks slowing your team down? Tech that's not pulling its weight, workflows that need a refresh? EMigration put together a set of practice management resources to help you audit what's working, strengthen your operations, and set your firm up for a stronger second half of 2026. Find the link at get.eimmigration.com forward slash IRP or click on that 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 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. We did it, folks! We made it through Supreme Court season. Now I'm not entirely like these other Supreme Court watchers and Supreme Court podcasts and blogs and all that who have a May and June that is wrecked every year, but I certainly feel it. Hats off to those guys. It is rough living and dying with the Supreme Court. We are all still alive though. We still have a country. The Supreme Court's decisions are largely horrifying on these major issues, but not entirely so. And we still have each other, especially in the immigration community. Now, because I pushed two cases from last week to this week, you still have a pretty long week, so I'll stop yabbering and I'll get to it. I will give you all some homework though. After you listen to this episode, go read Justice Jackson's decision in the birthright citizenship decision. A decision which I'm gonna do right now.

Trump v. Barbara, et al., No. 25-365 (U.S. June 30, 2026)

SPEAKER_00

Published by the U.S. Supreme Court on June 30th, 2026. This case is about U.S. citizenship. It is astonishingly not unanimous, not even close, to be honest with you. And when I did that rash of Supreme Court decisions last week, I wasn't sure if I was gonna do this decision when it came out this week, given that every legal podcast on the planet's gonna be doing it, and a lot of those people are like constitutional law professors and more qualified than me to do the case. But I could not help myself. And I hope I have something to offer. The Chief Justice authored the majority opinion supported by Justices Kagan, Sotomayor, Barrett, and Jackson, with Justice Kavanaugh providing a concerning concurrence, and Justices Thomas Alito and Gorsuch in a dissent not worth mentioning on this podcast. The Chief begins by quoting the Fourteenth Amendment, quote, all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. End quote. So it's the subject to the jurisdiction thereof stuff that's in dispute. That's the only foot in the door that the executive order from President Trump has. Historically, that language meant pretty much only that the children of diplomats born in the U.S. aren't U.S. citizens because the parents and their kids are not subject to the jurisdiction thereof. They have diplomatic immunity. President Trump tried to change all of that with a weird executive order made weirder by the fact that it was prospective focused. So, like a prospective reinterpretation of the US Constitution. Pretty weird. Tried to decree, like a king, that children born of persons unlawfully or temporarily present in the United States aren't U.S. citizens. Several brave, affected, or would be affected parents sued. In those many lawsuits, no court agreed with the president. No judge, even, to my knowledge, agreed, until the three dissenters picked up that mantle. Some history first by the majority. In England, the king owed you protection because you were born in his lands. Quote, a foreign mother could enter the British Isles, give birth, and leave with her child the very next day, and that child would remain a British subject. Why? Because the child owed an implied allegiance to the sovereign who protected him, no matter how momentary and uncertain his presence in the king's realms. End quote. So too the mother, but only so long as she was in the realm, explains the court. That also held true for people who were disliked, or whose parents could actually be expelled, like, say the Roma, also known as gypsies. All of this was incorporated into American law into the common law before the Civil War, explains the Supreme Court majority. People could come here from all over the world, and the children born in America were citizens, no matter how disliked those parents were or their countries. In America, Native Americans were initially exempted for reasons specific to Native Americans. And then, of course, there were the former slaves and their children, and in particular, their treatment by the slave states, leading to the infamous and quote odious, end quote, Dred Scott decision, where, quote, Chief Justice Tanne, writing for the court, concluded that the words people of the United States and citizens had an unexpressed and atextual racial component, one that excluded all those descended from slaves. The nation was shocked, explains Justice Roberts. Then they went to war. Then they passed the Fourteenth Amendment to definitively put Dred Scott to rest. The citizenship clause of the Fourteenth Amendment mirrored that pre-Civil War, pre-Dred Scott common law, explains the majority. Everyone understood this at the time, writes Justice Roberts. It's only very recently that people have started to get legally creative and think otherwise. Textually, the conclusion is supported too. The Fourteenth Amendment drafters knew what jurisdiction meant and what the phrase subject to the jurisdiction thereof meant, quote, in 1868 as today, jurisdiction in the context of a sovereign refers to the power of governing or legislating, end quote. That in turn means to live under the dominion of the United States, to paraphrase. And that's what parents of U.S. citizens born in America do, even if they're here unlawfully. They can, for example, still be criminally prosecuted in America. They're subject to the U.S. dominion, subject to the U.S. jurisdiction, something Mr. Trump and his cohorts certainly would agree with. The limits to this were carefully defined to the court. Diplomats, Native Americans, and such. The majority then goes on to explain that its decision in Won Kim Arc from 1898 essentially already held this, which of course has been far from the end all be all with other precedent and star decises of late, but it is important to remember. The court discusses this a bit. Quote: What the court held in Wong Kim Ark was simple. The citizenship clause incorporated the common law and granted citizenship to nearly all children born in the United States. Not surprisingly, then, in the 128 years since, we have repeatedly understood the rule of Wong Kim Arc to guarantee citizenship to all children born in the United States and subject to its power. End quote. The majority spends the rest of the decision rejecting the government and the dissent's contrary arguments. The idea, for example, that the children of non-citizens aren't citizens because their parents lack allegiance to the US, and that you can't have allegiance without legal domicile is misguided for multiple reasons, explains the majority. The dissent is engaged here in, quote, fundamentally revisionist scholarship, end quote, explains the majority. And in other cases of late too, explains the Kevin. And in any event, quote, it is simply not true that domicile in a new nation severs one's ties to the old one, end quote. As all immigration attorneys with clients with dual citizenships, no. Throwing shade on Justice Thomas and Justice Alito's reasoning, the majority affirmed what the constitutional amendment makes clear, meaning we can at least take a sigh of relief for now. It is qualified, though. Well, there are five justices explaining that this can't change without a constitutional amendment. Justice Kavanaugh concurs to explain his belief that actually the problem with the executive order was that Congress needs to write the statute to this effect. It can't be done through an executive order because of another congressional statute already on the books. That is terrifying, but there you have his concurrence in judgment and partial dissent, and I am obligated to tell you all that. Justice Jackson concurred and wrote mostly for herself, but also had Justice Sotomayor with her for some of it, providing a blistering opinion that focuses largely on Justice Thomas and his dissent. My partner Ed Ramos said he was almost brought to tears by it, and I'm sure the strict scrutiny professors will be doing it in depth. Lots of history regarding the second founding, which has been a bit of Justice Jackson's jam. Gonna read all this though, quote In the time since Frederick Douglass's prescient observation, Americans have come to learn that fading memories are not the only danger. The distortion of historical facts, retellings that reimagine and repurpose past events to lend credence to misbegotten aims, may be an even greater threat. Yet here we are. The government, the principal dissent, and a handful of revisionist commentators now vigorously promote an interpretation of the citizenship clause that diverges sharply not only from what the text says, but also from the historical record as interpreted by the keepers of the Call of Remembrance, also known as trained historians. What is more, this alternative account pitches black Americans against immigrants when the advocates who promoted the Fourteenth Amendment did no such thing. Freed blacks fought for the shared humanity of all people. And the great emancipator eventually foresaw that the only path forward that could prevent a return in any form to slavery and race-based subordination was to link the fates of all. End quote. Not going to even read the dissents, to be honest with you, I didn't even read them. And so to conclude, back to the majority with its conclusion, quote, citizenship then and now was the right to have rights to freely participate in our political community. The framers of the Fourteenth Amendment extended that promise to every free-born person in this land. We keep that promise today. End quote. And that is Trump B. Barbara et al.

Sosnava Rodriguez, et al. v. Mullin, et al., No. 26-50183 (5th Cir. July 2, 2026)

SPEAKER_00

Alright. Next is Sosnava Rodriguez et al. the Marquin Mullen et al. published by the Fifth Circuit on July 2nd, 2026. This case is a ray of sunshine. It is about Bond in the Fifth Circuit, and it's about the U.S. Constitution. Recall that the Fifth Circuit was the first circuit to address the mandatory detention for Iwis issue, holding that they can be detained mandatorily without even a bond hearing by statute. That was when Rostro Mendez v Bondi Episode 303. But there was a powerful dissent in that decision, as there was in the Eighth Circuit's later similar decision explaining how wrong that statutory holding was, and that in any event, such mandatory detention likely violates the U.S. Constitution, namely, the non-citizens due process rights. The Fifth Circuit has now so stated in a split precedential decision. None of the non-citizens here are criminals. None are legitimately flight risks. None have removal orders. All have lived in America for a long time, explains the court. The Fifth Amendment protects them. Quote, it is part of the historic majesty of this long-ago founding charter, that it makes no exceptions in providing basic rights to those within our boundaries, including a right to be heard when the personal liberty is taken. And so really it's like 30 pages explaining why non-citizens have constitutional rights too, going all the way back to Yamataya, the Fisher, the Japanese immigrant case, published by the U.S. Supreme Court in 1903. Justice Alito having intentionally muddied the waters in Therasigum doesn't change this century and a quarter of precedent, explains the Fifth Circuit. Thirasigum is a very, very narrow decision, explains the court. That and other precedent is really just the crux of it, and let's be honest, I suspect one or both of the judges in the majority disagrees with Buenroth Roméndez. But here are some other highlights of this decision holding that Iwi non-citizens have due process rights to a bond hearing. For example, the fact that the Fifth Circuit has interpreted the statute to allow mandatory detention says little about the substantive and procedural due process dispute at issue, although it seems that it's the procedural due process claim that's going to win the day. Quote, the government's focus on what a statute does not provide ignores that any right to due process is conferred not by legislative grace, but by constitutional guarantee. Greg. Coming to an expanded Supreme Court near you in 2029. So procedural due process. Here, of course, the Fifth Circuit has now previously held that at present, these three non-citizens and those like them are getting none at all. They have no statutory right to a bond hearing. The BIA and the Eighth Circuit, of course, have said so too. So their due process rights have been violated. Doesn't matter that these are non-citizens in removal proceedings. Quote, freedom from physical restraint is a fundamental right, end quote. Don't tread on me. Can't we all get behind that? The majority laughs the U.S. government's history and tradition argument out of court. But who knows, I'm sure two or four Supreme Court justices would bite. Also, outrageously irrelevant given the issues at stake here, but it did make me chuckle. In discussing the Supreme Court's uber important decision in this arena, DeMore be Kim, the court states in a footnote, quote, Kim was the immigrant petitioner for a rare habeas corpus, while Demore was the governmental respondent. The short form for the case should be Kim, but this precedent is almost universally referred to as De More. We concede the point. End quote. Now, if we could only stop saying and arguing about the correct pronunciation of Zadvidis. Zadvidius? Zadvidius? Back to this case, the justifications for Iwe detention is flight risk and danger. Important and can be considered at bond hearings, but not enough to permit a categorical deprivation of the constitutional right to liberty for all Iwis just because they're Iwi. So what do they get? What is their process? Well, the Fifth Circuit applies the well-worn Matthews test and relying on Zadis and Demore as guides. The Fifth Circuit holds that Iwis must receive a bond hearing after 90 days of detention. So, like, surely before that amount of time, it can't be scheduled at the 90-day mark. Gotta happen before it. The Fifth Circuit does not, however, order any particular process. So it seems like it's not saying DHS has the burden in these bond proceedings before 90 days. But maybe they are. The Fifth Circuit says that at the bond hearing, quote, the government must articulate an individualized justification for further detention without bond, end quote. I don't know, kind of sounds like a DHS burden to me. And if the non-citizens don't get the bond hearing being ordered within 90 days, this decision, quote, would require their release. End quote. That's me reading the Fifth Circuit's language just a little fast and loose, but I would make that argument all day, and that is a direct quote. Also seems like this doesn't apply post-final order of removal. This is while the Ewis are in active ongoing removal proceedings. So pretty big wow. With the Fifth Circuit, of course, noting that somewhere all of this might change after next term because the Supreme Court just took up the Second Circuit, Section 236 C mandatory detention decision, that is whether or not those people have a constitutional right to a bond hearing. So we'll see what happens. By the way, the three non-citizens have not actually been detained since getting habeas petitions granted in district court in February and March, respectively. If that makes you feel a bit better, as it does me. Judge Graves concurred in full and explained that the non-citizens, quote, were entitled to due process from the moment the government sought to deprive them of their liberty, end quote. Amen, Judge. Judge Graves would not have any 90-day time limit and would require that all detained non-citizen Ewis receive quick hearings, and that no non-citizen, it seems to me, be detained in the future without pre-deprivation due process. Amen, Judge. Judge Graves explains that he signed on to the 90 days because it's better than nothing. Quote, the real violation here is that petitioners' continued detention was unjustified, not that it was indefinite, end quote. Judge Graves concludes by recognizing that, quote, there is much that could be said about the troubling conditions non-citizens are currently experiencing, and what amounts to an appalling lack of humanity shown to our fellow human beings. End quote. Judge Wilson dissented. Now the Fifth Circuit doesn't note in these days of decisions who argued the case. I suspect it was ACLU, but I'm not sure. But I know it was ACLU that litigated the birthright citizenship case, and I forgot to give them their flowers in the last decision I just did, the birthright citizenship one. So congratulations, ACLU, and thank you for everything you are doing to protect immigrants and America. If you weren't the ones on this decision, you've been on ones that are similar, and the ones who are on this decision should send me an email, and I will give you your flowers when you email me. And that is Sasnava Rodriguez et al. Mark Wayne Mullen et al.

Matter of T-D-E-, 29 I&N Dec. 732 (BIA 2026)

SPEAKER_00

That should hold you guys over while we swim through our BIA stew this week. First of the two from them is Matter of TDE published by the BIA. This case is about credibility and regards a family of asylum seekers from Burkina Faso. The case rises and falls, however, with the father, the lead respondent. An immigration judge granted the family asylum. The BIA reversed, because it holds the IJ relied on a positive credibility finding that was to the BIA clearly erroneous. Clearly, let's learn why. Mr. TDE's application for asylum is dependent on his claim that he served in the Regiment of Security Presidential, the RSP, a military division responsible for protecting the President of Burkina Faso from 2009 until the RSP's dissolution in 2015. Mr. TDE twice applied for visas entered the United States, first in December 2015 and again in August 2016. In each of those applications, he denied ever having served in the military or having received specialized weapons training. So that's pretty bad. So I'm going to stop right here to note that I've heard of this and have been informed that in many countries, non immigrant visa seekers use the services of people in their home country to guide them in filling out their DS 160s, and that some of those non attorney Any foreigners making a business of this abroad have been known to counsel, would-be non-immigrants, to put no to this military question, or these consultants even do it for them without the applicant knowing, and then the applicants don't closely review their answers. I'm not condoning any of that, but I've heard of it happening. I'm just providing context. Unsure if that's what happened here. Here it appears that Mr. TDE came clean, eventually testifying in court that he was, quote, in despair and danger and just wanted to leave Burkina Faso, end quote. What would you do to save your family? The IJ forgave Mr. TDE, reasoning that he, quote, was forthcoming and readily admitted that he purposely failed to disclose details in his visa applications that might prevent him from obtaining a visa, end quote. As such, the immigration judge, quote, credited the respondents' explanation for these discrepancies. End quote. The IJ is the trier of fact who witnessed this testimony, demeanor, and other indicia of truthfulness. The IJ, however, granted asylum, and that is a bit of a sin these days to the BIA. Dare I say, nearly clear error in and of itself? To the BIA, quote, it is clear error for an IJ to find the respondent credible based solely on a finding that the respondent was candid about making prior false statements. Accordingly, we will remand for the IJ to more fully assess the respondent's credibility. End quote. And come on, guys, come on. Are you telling me you really think the IJ found Mr. TDE credible solely for that reason that he came clean? Like the IJ didn't also consider the hours of testimony that was surely provided to establish asylum eligibility? Come on, guys. Sounds like a bit of a purposeful misread of the IJ's decision to prove a point to other IJs, but that's just to me. I don't have the full record. The BIA then, though, gets to what it appears to really have issues with, which is the other findings, having already found clear error and grounds to remand. The BIA believes that Mr. TDE's claim that he misrepresented the military stuff in fear for his life is undermined by his testimony that he did not leave Burkina Faso for five years thereafter. Might be hard to remand solely for that, given that that is pretty much fact-finding, so the BIA has fortunately wrapped itself in its initial clear air finding. And to the BIA, the IG did not make an explicit determination of one of the witnesses' credibility. A bit of an issue because that witness, quote, falsely testified during the hearing that he was never wanted for arrest or charged with a crime when, in fact, an international arrest warrant was entered against him and he was convicted in absentia for alleged involvement in a military coup in 2015. End quote. False testimony under oath that the witness later conceded on cross-examination. So, yes, there is a bit more going on in this decision, as written at least. Nor does the BIA believe the affidavits submitted in support of Mr. TDE's claims sufficiently detailed or corroborative of his testimony. Again, also fact-finding, which is again why the BIA is making these decisions after it already found clear error for that one thing. Expressly expressing no opinion as to the ultimate outcome of proceedings, the BIA took away the asylum grant and remanded. And that is a matter of TDE.

Matter of Vizcaino Aybar, 29 I&N Dec. 736 (BIA 2026)

SPEAKER_00

This decision is about bond jurisdiction. It creates very, very real harm in this case as well, as an IJ granted Mr. Viscaino a bond, which DHS appealed and the BIA is now taking away based on a legal technicality. Literal human incarceration, because the BIA has decided to issue a new procedural rule. No error on flight risk held, no error on danger held. Again, actual human incarceration because of a new jurisdictional rule. The dude's charged as a visa overstay, too. DHS detained him and initiated removal proceedings, and that same day, Mr. Vescaino requested a bond hearing. At the time, the Chelmsford Immigration Court had jurisdiction over his removal proceedings. About a week later, DHS forum shopped and moved him to a South Texas detention center, where he now has a constitutional right for a bond hearing, although he's a visa overstay, so he already had that anyway by statute. DHS filed a motion to change venue. If granted, Mr. Viscano, now in detention thousands of miles from his likely home, would also be subject to Fifth Circuit precedent rather than First Circuit precedent. For reasons unexplained, Mr. Viscano withdrew his request for a bond hearing and filed an opposition to the motion to change venue. Then he filed a second motion for a bond hearing. But by this point he's already in South Texas, so that is what is dooming him to the BIA. The Chelmsford court still had jurisdiction over the removal proceedings. Everybody agrees on this. Eleven days later, the IJ denied the change of venue motion, scheduled a bond hearing, and said that DHS could renew their motion to change venue after the bond hearing. Seems pretty judicially expedient to me, for if the IJ grants bond, the venue change motion is moot, right? Which is exactly what happened a week thereafter. And bond and removal proceedings are, of course, separate and apart. The BIA vacated the bond grant, and I guess is ordering that this individual be redetained if he wasn't already still detained. Now there is apparently a regulation, ACFR section 1003.19 C1, and it reads that the exercise of authority to review bond determinations shall be made to the immigration court having jurisdiction over the place of detention. Applying a 2015 VIA decision, the BIA makes clear that this means that venue for a bond hearing is the court with the jurisdiction over where the non-citizen is physically detained. Even though in the age of WebEx, like none of this matters anymore. Like even the detained judge in the actual South Texas court would likely be appearing over WebEx. Or that court might farm it out to a judge literally sitting in maybe the First Circuit. Still, gotta request the bond with the venue court of detention holds the BIA here. Place of detention, not the court with jurisdiction over removal proceedings, is the relevant question to the BIA, which makes no sense from an efficiency standpoint in the age of remote hearings. Huge thing to remember though to me, everybody. It seems that this entire decision depends on the fact that Mr. Viscano withdrew his bond request, filed when he was held within the Chelmsford court's jurisdiction and refiled it once already in South Texas. No part of this decision, at least as I can tell, would have required the Chelmsford IJ to transfer bond to South Texas had Mr. Viscano not withdrew the initial request filed when he was detained in the Chelmsford jurisdiction. We'll see how that is applied. And so to be clear. The real harm for non-citizens, though, in my opinion, it seems, will come if immigration judges expand this decision beyond anything written in it and decide to vacate or transfer bond requests already filed with and not withdrawn from a first court to a second court simply because DHS moves a respondent from one detention facility to another. Not only would such a system prejudice non-citizens with the venue and choice of law concerns that I mentioned earlier, but it could potentially delay bond hearings for weeks, as DHS could theoretically just keep moving a non-citizen in an effort to avoid a bond hearing. Not to mention, of course, the different IWI bond rules in the Fifth Circuit specifically, as compared to nearly everywhere else, at least as a matter of statute. If the BIA intends this with its far narrower and procedurally unique decision that I just summarized, shame on them. Because nothing in the text indicates it. So I'll give them the benefit of the doubt. And that is matter of this kind of I bar.

Riley v. Blanche, No. 22-1609 (4th Cir. July 2, 2026)

SPEAKER_00

Chalk full of non-citizen good decisions this week, so here's another one. Riley v. Blanche, published by the Fourth Circuit on July 2nd, 2026. Yes, that Riley decision. The remand from the Supreme Court decision last term that has taken up many of my podcast brain cells and will take up many more to come. Recall, Mr. Riley was ordered removed by ICE through a final administrative removal order or a pharaoh. He sought convention against torture protection in withholding only proceedings, and he won. But then he had it vacated by the BIA, and then he petitioned for review that cat loss to the Fourth Circuit. The Fourth Circuit previously held that it lacked jurisdiction to review that. But that wasn't necessarily true, explained the Supreme Court, remanding the matter back to the Fourth Circuit, and so that's where we are now. The Fourth Circuit now weighs in to explain what it believes the Supreme Court's Riley decision means, and when you know it, it overturned the BIA on the cat denial too. Judge Quaddlebaum dissented. Recall, Mr. Riley is from Jamaica and got convicted of stuff that made him removable and ineligible for everything except cat deferral, drug stuff, I believe. DHS issued the pharaoh based on his conviction, and an IJ granted cat in withholding only proceedings. And recall from the Supreme Court case: quote, a powerful Jamaican drug dealer with connections to the Jamaican government had been targeting his family in Kingston and had murdered two of his cousins, and Mr. Riley feared that he too would be killed if he were to return to Jamaica. End quote. First, the Fourth Circuit concludes that it has jurisdiction to review this petition for review, as all courts must. After Riley, and I guess a bit of satchakaria, the 30-day petition for review deadline is not jurisdictional. It's a claims processing rule. That means it can be equitably told or even waived if oil doesn't bring it up. So that's about timeliness, right? But there's still a potential jurisdictional hurdle. One that the Third Circuit dove into a few weeks ago and that the 11th Circuit jumped into last week. What happens if you don't petition for review the pharaoh at all? That's not just a timeliness question. That itself could implicate jurisdictional concerns because, so the argument goes, the non-citizen hasn't petitioned for review the final order of removal at all as required to vest jurisdiction by statute. A split third circuit said no worries about that, but the 11th Circuit said you totally got a petition for review the Pharaoh, as has the Ninth Circuit, if memory is serving. I'm not going back to review those complicated decisions, even though some are recent, but yes, the Fourth Circuit ends up going through all of that in this decision. On remand, Oyle argued this very point, that the court lacks jurisdiction because Mr. Riley never petitioned for review the pharaoh itself. And this all actually comes from Justice Thomas's concurrence in Riley, because of course it does. That's what he does. In an effort to avoid any jurisdictional misunderstanding, counsel in this case, like counsel tried in the 11th Circuit, filed a motion to amend the petition for review to challenge the Pharaoh as well. And unlike the Eleventh Circuit, the Fourth Circuit granted Mr. Riley's motion here. Why did the Fourth Circuit permit amendment to the petition when the Eleventh Circuit would not? Seems like pro bono counsel in both cases, after all. Well, who would ever challenge a pharaoh before the Supreme Court's Riley decision said you have to? Now you have to do it within 30 days of the pharaoh. And you've got to then convince the circuit to kind of hold that in abeyance until you lose withholding of removal or cat in withholding only proceedings. And then you got a petition for review that. This is, of course, if you don't win withholding of removal or cat protection from the IJ or the BIA. So again, you got a petition for review of the Pharaoh within 30 days, but if you don't do any of it at all, you might run into Justice Thomas's created jurisdictional issue. And quote, no other justice joined Justice Thomas's concurrence, and the majority opinion did not address or refer to it, end quote. It's all absurd as the Fourth Circuit majority all but says, given that the pharaoh petition for review will occur before withholding only proceedings conclude, requiring that a circuit hold the petition for review kind of in abeyance. But only if the circuit wants to. The circuit can totally screw non-citizens as the 11th Circuit seems to have been hinting at last week. More on that to come in future episodes, surely, but such is the Riley Majority's rule. Anyway, Oil is predictably arguing for Justice Thomas's jurisdictional rule. A rule that by definition the Riley Majority did not hold, because it ruled on the Riley case in a claims processing timeliness basis, right? The Supreme Court must have implicitly held that it had jurisdiction because courts must always ensure that they have jurisdiction. So if the Supreme Court majority believed that it didn't have jurisdiction, it couldn't have done anything in Riley, right? So the argument goes. Because remember, Mr. Riley did not petition for review the Pharaoh at all, until he was permitted to amend it here before the Fourth Circuit. The Fourth Circuit actually punted on the jurisdictional question, that is, whether or not you have to petition for review the Pharaoh, or you lose the ability to petition for review withholding of removal. You should totally do it though, guys. The court didn't say where they're landing on the circuit split, but as I mentioned, but as I mentioned, they are instead permitting Mr. Riley to amend his petition for review to challenge the pharaoh after the fact. The Eleventh Circuit did not allow that, remember? And the majority is sure coming pretty close to disagreeing with Justice Thomas's concurrence, as well as disagreeing with the 11th and Ninth Circuits and maybe the Second Circuit on the full-on jurisdictional question. Now, such an untimely amendment to a petition for review might not work in the future, explains the court. But with Mr. Riley, whose case literally changed the rules, they'll allow it. And on timeliness, which is not the same as jurisdiction, but they're cousins, Oil waived the issue anyway, right? That's kind of the core holding of Riley before the Supreme Court. Lots of language used here that to me at least makes quite clear that the Fourth Circuit isn't going to have a problem with meritless pharaoh petitions for review either, given that it sees them as placeholders to preserve withholding of removal or cat petitions for review challenges should they become necessary based on the Supreme Court's Riley rule. Okay. Satisfied of its review authority, the Fourth Circuit turned to the Cat Denial in chief and remanded. The VIA did not properly apply clear air review to overturn the IJ, explains the court. Very detailed claim, reasoned the IJ. The gang lord named Hamilton already murdered one of Mr. Riley's cousins when the cousin was deported to Jamaica, and a second cousin was murdered too, and the ganglord began threatening Mr. Riley when he learned of his release from prison, quote, in part to prevent Mr. Riley from retaliating against him for the murder of his cousins, end quote. Corroborated by affidavits which relayed phone calls and text messages and more. Those were from the sister and the mother, at least, and they tried to get police in Jamaica to help, but they were rebuffed. Told, for example, that, quote, deportees are not their concerns, because they are criminals, and the police do not have time to protect criminals. End quote. So there you go. It was a thoughtful IJ grant as relayed by the Fourth Circuit majority. The BIA overturned the IJ's grant, though, because it didn't think that the feared harm rose to the level of torture, or that the Jamaican police's refusal would amount to acquiescence. As to the torture, too speculative, too many speculative events, as is literally always the rationale that the BIA uses to deny. So it's a pretty dang standard BIA reversal, very similar to multiple BIA cat denials and reversals discussed on the pod over the last year and a half. And it was all error, explains the Fourth Circuit. Clear error review of an IJ is very deferential. And you know what it includes to the Fourth Circuit, which I believe might be at odds with some of what the BIA thinks? Quote, what will happen to the petitioner if he is removed, and whether he will be subject to future mistreatment with the support or acquiescence of the government, end quote. Those are fact questions that the BIA reviews for clear error, not de novo review. The Fourth Circuit literally doesn't care that the BIA cited the correct standard in its decision here. It's about whether the BIA applied it. Yes, there were some gaps in Mr. Riley's initial testimony, but the IJA recognized that and then pressed Mr. Riley, wherein the gaps were largely filled. The BIA didn't overturn the credibility finding, so while it might disagree with the IJ's view of the facts, that's not clear error review. So too, the BIA's apparent reweighing of CAT evidence. Can't do that either. Can't do it either. Say it again. Then there's the BIA's complete disregard of the country condition evidence because it didn't mention this drug lord by name. Bar for the course for the BIA these days. Well the IJ of course knew that, but did hold that the country condition evidence corroborates the claim as background evidence. It explains, for example, the quote, unchecked power wielded by Dons in Jamaica, end quote. Nothing wrong with doing that, IJs. Nothing wrong with doing it. Say it again. Quote, the reports, in other words, may not mention Hamilton by name, but they depict a reality perfectly consistent with the one Mr. Riley described, lending plausibility to his account, end quote. Which is, of course, the purpose of country condition evidence. On acquiescence, the BIA also seems to just disagree with the IG's view of the record, incredible testimony, which again is not clear error review. Sound like any recent cat decisions from the BIA discussed on this podcast, quote, the BIA concluded its opinion by holding that Mr. Riley's testimony and supporting evidence were insufficient to establish the requisite risk of harm with the acquiescence of Jamaican law enforcement. But that was not the question before the BIA. The only question before the BIA was whether the IJ's contrary determination, assessed with the appropriate deference, was clearly erroneous because the record compelled a different result. End quote. Compelled. Remanded. Judge Quaddlebaum dissented on all of it. As such, congratulations, Elizabeth Francis, Profassi, and a team at Squire Pat and Bob's on the hard-fought win. And look, guys. I get that a primary point about the BIA's recent war on CAT, denying CAT claims and overturning IJ grants, is to scare the IJs who they haven't fired yet, and to create a bunch of precedent that new IJs can rely on to deny more CAT claims going forward. I get that. But here's your case guide should the BIA overturn your IJ, assuming CAT grants remain at the IJ level at all in the future. And it's good to see a circuit call the BIA out on what it's doing a bit. And that is Riley V. Blanche. I know I didn't. Yet here you are. H 1B season in full swing, and your team is buried in beneficiary forms, document chasing, and data entry. That's $400 an hour in legal talent doing $20 an hour work. Staffi plugs directly into your workflow. Staffi handles the data entry, document collection, and H 1B form prep. Your team reviews it, you approve it, you bill. With the new wage-weighted selection process adding even more admin pressure this season, the firms that scale are the ones that stop doing it all themselves. Say yes to more H1B clients without burning out your team. Visit staffy.cc or call 786-891-5619 or click on the special link in the show notes. Because you deserve a practice that grows without burning you out.

Rivera-Mendoza, et. al v. Blanche, No. 21-70107 (9th Cir. June 25, 2026)

SPEAKER_00

Gonna do two crimigration decisions before we return to Bond. First is Rivera Mendoza et Alvi Blanche, published by the Ninth Circuit on June 25th, 2026. This case is about crimes of child abuse, abandonment, or neglect, and it's a long one. Always extremely complicated. And one of the reasons that I pushed it a week, it was published actually last week. And a whole lot of people are involved in this one, including but not limited to Ayla's unsung but hardworking volunteer Amicus Committee, it would appear. Hello, Amicus Committee. Two unrelated non citizens are at issue here, but both were found removable under INA section two thirty seven A2EI for having been. Convicted of a crime of child abuse, neglect, or child abandonment. The other non-citizen, Mr. Leon Brevieska, was convicted of cruelty to a child in violation of Cal Penal Code Section 273AA, while Mr. Rivera Mendoza was convicted of child neglect under Oregon Revised Statute Section 163.545. We don't learn much about Mr. Leon Brevieska's conviction, but it seems icky if accurate. As to Mr. Rivera Mendoza, the Ninth Circuit relays that it appears that the basis was that he, quote, and his wife left their sleeping two and three-year-old children at home while they together went to Walmart for 40 to 45 minutes. The two-year-old awoke and was able to get out of the apartment and onto the street where he was found by neighbors. End quote. Now I don't condone that. I have a two-year-old myself. I don't know, guys. For various reasons, the legal issue is whether these offenses match section 237A2EI. They do, holds the Ninth Circuit. Affirming Matter of Rivera Mendoza, published by the BIA in 2020, episode 35. The categorical approach, of course, applies and presumes, quote, that the state conviction rested upon the least of the acts criminalized by the statute, and then we determine whether the conduct would fall within the federal definition of the crime. End quote. Ninth Circuit spends quite some time going through its years of fighting and somewhat affirming with the BIA and Velazquez Zerreta, made all the more complicated by the fact that most of it was in the Chevron deference days. It was conclusively resolved in the BIA's favor in the Ninth Circuit's N-Bunk decision, Diaz Rodriguez Vigarlin, but that decision was then itself vacated and remanded by the Supreme Court following Loper Bright. It is a mess, and selfishly, I'm just kind of glad we're nearing the end here. I've actually been dealing with this issue since I was an attorney advisor in the San Diego Immigration Court in 2013. And I'm sure people have been doing it longer than me. This decision, it seems, styles itself as the Ninth Circuit's final answer. Before making it, the panel discusses what it believes Loper Bright requires of it in this context. Obviously, the court needs to figure out the best reading of the INA statute, but no star decisis issues because in light of the Supreme Court's remand, the N Banc court's decision was vacated. It is a confusing removability statute, and it makes removable a crime of child abuse, neglect, or abandonment. Child endangerment is nowhere to be found, right? But the Ninth Circuit held that it's covered. The statutory text is ambiguous, explains the court, mentioning all the different opinions from the NBANC panel. Nor does a survey of state laws from 1996, Alaska Valcantana, really help, explains the court. So the Ninth Circuit went to some legislative history, relying on the BIA's analogous Velasquez de Herrera decision, in which the BIA explains that the provision was passed, quote, as part of an aggressive legislative movement to expand the criminal grounds of deportability in general and to create a comprehensive statutory scheme to cover crimes against children in particular. End quote. The Ninth Circuit believes other contemporary federal statutes criminalized child endangerment, so that supports making it a removable offense, too. Agreeing with some other circuits of late, which admittingly have themselves had intrajudge arguments on this, the Ninth Circuit holds again that the phrase crime of child abuse, child neglect, or child abandonment describes a single category of crimes, meaning I guess it's not fatal that endangerment is not listed. Nor does that statute necessarily require harm to a child to make someone removable. Yes, it can be harsh for, say, people like Mr. Averimendoza, but Congress knew how to create waivers for section 237 removability and didn't do so here. So blame Congress. Child endangerment is covered. But that's just the first part. What kind of child endangerment? And generally, what are the elements to make it removable? The Ninth Circuit first turns to mens rea, something else section 237 A2EI doesn't mention, that is the removability statute. I'm gonna skip a lot of statutory interpretation there and just tell you that the court holds that criminal negligence is sufficient. A state crime that criminalizes a criminally negligent act or omission against a child cuts it. Yikes. Something that again the court believes aligns with the three other circuits to have addressed this, the 11th, 4th, and 5th circuits. But to what end? What must the criminally negligent act or omission do? What is the actus reus? Well, agreeing with the BIA at a minimum, it's the quote, placing a child in a situation presenting a substantial risk of harm to a child's physical or mental health, end quote. Pretty dang low when combined with criminal negligence. The panel explains that its actus reus holding also aligns with decisions from other circuits. Nor is section 237A2EI limited to actions or omissions done by parents or guardians, explains the panel. Not gonna lie, seems obvious to me. Applying all this to Cal Penal Code Section 273AA, that child abuse conviction, the Ninth Circuit rejected the argument that the statute is merely a general intent crime rather than requiring at a minimum criminal negligence. Now to me, the best argument there seems to be a literal California Supreme Court decision stating that, quote, criminal negligence is not an element of the offense, end quote. Great fine counsel. Insufficient. It's quite complicated, but suffice it to say, quote, under California law, a person may be guilty of criminal negligence even though he or she did not have the general intent to commit the crime, end quote. Truly complicated.

unknown

Mr.

SPEAKER_00

Leon Bravieska, for his part, also argued that Section 237A2EI is unconstitutionally void for vagueness, but the Ninth Circuit disagrees. This is not the same as recent Supreme Court decisions holding that the crime of violence residual clause is void for vagueness. Quote, the state prosecution must show that the child was actually placed in a situation likely to produce bodily or mental harm in a manner that constitutes a gross deviation from accepted standards. Thus, the section provides clear standards as to the mens rea and actus reus required for coverage. End quote. Not vague enough. But I don't know. Maybe another circuit will bite. As to the Oregon crime, well, the argument was that it quote covers not just a risk of harm, but the risk of a risk of harm, and thus does not require a mens rea of criminal negligence. End quote. Don't you just love these decisions that are like three decisions in one? Restated, it was argued that, quote, what is needed to be likely was not the harm itself, but the probability of exposure to harm, end quote. Looks like that would avoid removability in the Ninth Circuit if it was true. But that's just not how the court reads Oregon law. Recall, we're onto the Oregon law now. We already did the California statute. Rather, reading case law, the Ninth Circuit states that, quote, the totality of the circumstances must show that leaving the child unattended was likely to endanger her health or welfare, and that the defendant's lack of awareness was a gross deviation from the normal standard of care. End quote. This conforms with Section 237's requirement of criminal negligence, mens rea, to the Ninth Circuit. Very complicated case. Judge Boom would take encouraged to say he'd reach the same conclusion slightly differently. And that is Rivera Mendoza et al. Blanche.

Morris v. Blanche, No. 25-3084 (6th Cir. June 25, 2026)

SPEAKER_00

Hope you like crimigration. You know I do. Next is Morris V. Blanche, published by the Sixth Circuit on June 25th, 2026. This case is about so many complicated things as decisions litigated by this excellent attorney often are. This is the second of the two crimigration decisions that I punted from last week. Can you imagine if I had done both of these last week?

unknown

Mr.

SPEAKER_00

Morris fled war-torn Liberia for the United States in 2001, coming in as a refugee. He later adjusted to LPR status, but then was twice convicted of possessing a loaded firearm in a vehicle under Michigan law. Also convicted in 2024 of embezzlement after stealing about $1,500 from his employer along with some other convictions. Seems like he's not the best dude, but hey, everyone's story is complicated. DHS charged him as removable under INA section 237-A2C for having been convicted of unlawfully possessing a firearm, as defined at 18 USC section 1921A. Immigration court, counsel conceded removability and applied for LPR cancellation of removal, but the IGA denied that as a matter of discretion. The BIA affirmed on appeal.

unknown

Mr.

SPEAKER_00

Morris then obtained new counsel, who recognized that actually Michigan criminalizes conduct not criminalized under the federal statutes for firearm offenses, because Michigan doesn't have an antique firearms exception, or I guess if it does, it's different than the feds.

unknown

Mr.

SPEAKER_00

Morris therefore filed a motion to reconsider and motion to reopen with the BIA based on ineffective assistance of counsel, which is unfortunate, but the real criminal is BIA precedent requiring this to protect non-citizens. These were the Biden years, it seems, or maybe DHS just saw the light because, quote, DHS likewise moved to reopen, seeking to dismiss the removal proceedings without prejudice, end quote. The BIA, though, was not swayed, even by DHS's motion. And I'm not sure when the BIA adjudicated it. On the ineffective assistance of counsel stuff, the BIA didn't believe Mr. Morris correctly complied with Matter of Lazada, given that he apparently didn't submit evidence that the letters alleging ineffective assistance were mailed to the prior attorney, or that the bar complaint was mailed. And who knows, maybe it's because counsel was working frantically to meet a motion to reconsider deadline and also knew that DHS didn't oppose anyway? I don't know. What a profession. How many times have I said that of late? Everything's being petitioned for reviewed now, and the Sixth Circuit granted a stay of removal, but now it's ruling against Mr. Morris. At first held that it can't review Mr. Morris' removability in the appeal in chief because it's not exhausted. That is all the firearm stuff. Remember former counsel conceded it? Hence the need for a motion to reconsider, and hence the need for ineffective assistance of counsel claims? We'll get to all that in a sec. I do love Mr. Morris's second argument though, as does the Sixth Circuit. He argues, quote, that because federal courts always retain jurisdiction to determine their own jurisdiction, and because Section 242 A2C limits federal court jurisdiction over this final order only if he is removable by reason of having committed one of the covered firearm offenses? We are duty bound to answer that question ourselves. It is a clever argument, end quote. And it really is a clever argument. That is about as high praise as one can get from a circuit denying your petition for review, counsel. And I'm gonna steal that argument if I ever have to. But to the court, it already had jurisdiction under the savings clause at INA section 242 A2D. The issue is exhaustion, which is a separate bar to review. Nor does the motion to reopen count as exhaustion for an appeal in chief, something that in any event was petitioned for review before the BIA even decided the motions, which were then petitioned for review themselves. That then brings the court to cancellation of removal, which was exhausted in the first appeal, of course. But despite counsel asserting what is quite frankly reviewable arguments in other circuits and probably even in the Sixth Circuit, the court sees Mr. Morris's challenges, legal as they appear, too much akin to a dispute about how the BIA exercised its discretion. If that's the case, the statute and the Patel decision, not to mention Sixth Circuit precedent, say that the court can't review it. So as so framed, the Sixth Circuit refused to do so and affirmed the BIA's dismissal of the appeal. That then brings us to the motion to reopen a motion to reconsider denial. They're getting reviewed, just affirmed. Quote, generally, petitioners are bound by the concessions of their attorneys to the immigration judge unless they can show ineffective assistance of counsel, end quote. But to bring such a claim in the Sixth Circuit, you gotta comply with matter of Lizada, explains the court. That requires, quote, an affidavit detailing counsel's failings, proof that counsel was informed with the allegations, and evidence that the petitioner filed disciplinary charges with the appropriate authorities, end quote. Plus a reasonable likelihood of prejudice showing. The issue here is mainly, did Mr. Morris establish that he actually sent the letter and bar complaint? He certainly submitted copies of the signed stuff, but he didn't swear to having done so in his affidavit, nor does it appear that he submitted the FedEx or other proof of mailing. He was, after all, incarcerated the whole time. Kinda hard to do all this. Now counsel in his motion said that these things did happen, that is, that it was all mailed. Counsel's a well-respected officer of the court. This wouldn't be an issue in any other tribunal. It is to the BIA, dead set on denying things, and the Sixth Circuit affirmed that. After all, quote, photocopies of postal labels or tracking documents suffice when they provide enough information to confirm that the notice or grievance went to the right person, end quote. So too in other Sixth Circuit decisions, quote, a photocopy of a postal label made out to a disciplinary body and a screenshot of the United States Postal Service's tracking tool showing a parcel with a matching tracket number had been delivered, end quote, has sufficed in the Sixth Circuit for Lazata compliance. Nothing like that was submitted here, so the BIA wasn't wrong to deem Lazata insufficiently complied with. Attorney statements aren't evidence, and that's the end of it to the Sixth Circuit. As to the challenge of the BIA's denial of DHS's motion to reopen and dismiss, well, Mr. Morris has jurisdictional standing. And the court has jurisdiction despite how discretionary all it is. That's because a DHS motion to reopen isn't governed by statute, and so the discretionary nature doesn't divest circuits of jurisdiction pursuant to the jurisdiction stripping provisions. Very interestingly, explains the Sixth Circuit in a footnote. And didn't I tell you how complicated this decision was? Problem is DHS didn't explain itself in its motion to the BIA. So how can the BIA have been wrong to deny it reasons the court? Ultimately, quote, DHS's unreviewable discretion to institute proceedings does not guarantee it a unilateral authority to dismiss proceedings once begun or dissolve final orders once won. End quote. Important stuff to remember, not least of which because this might literally be the only case where a DHS motion to dismiss is getting reviewed by a circuit, given how unlikely that is to happen, because they're unlikely to be denied, and given that DHS cannot petition for review on its own. Now the IJ and the BIA have authority. Don't forget it in this age of DHS power IJs. Quote, once jurisdiction vs, DHS merely has the privilege to move for dismissal, and then only for certain specified reasons. End quote, you have the power, IJs. You can use it. So the Sixth Circuit affirmed the agency in this exceptionally complicated decision. And that is Morris V. Blanche.

Santillan Quiroz v. Mullin, No. 26-6019 (10th Cir. June 30, 2026)

SPEAKER_00

Here we go, ending with some good. Sentian Keros, the Mark Wayne Mullen, published by the Tenth Circuit on June 30th, 2026. We're ending nearly where we began. The Tenth Circuit has entered the Iwi Bond Party. Iwis are getting bonded per the statute in the Tenth Circuit. Adding to the statutory circuit split with the Fifth and Eighth Circuits. Although again, how about that constitutional Fifth Circuit decision at the near top of the episode, no? First, a bit about Mr. Santian Keros. Seems like a good enough guy. He has a US citizen family. He was detained during the ICE terrors of mid-to-late 2025 during a traffic stop. Where he has remained ever since he's in immigration prison because he entered without authorization twenty years ago. The district court denied a habeas overturning a magistrate judge's report and recommendation, which is no small thing, by the way. The Tenth Circuit reversed. The court's logic largely tracks that of the Second, Sixth, and Eleventh Circuits. All other circuits have already heard oral argument, explains the Tenth Circuit, so more decisions like this, or maybe like the Fifth and the Eighth Circuits on the statute, are coming soon. It's all about, of course, whether non-citizens who entered without inspection and admission are still seeking admission all these years later, such that they're subject to Section 235 B1B double I mandatory detention rather than Section 236A, which permits a bond hearing. Still horrible stuff, all of it, to be honest with you, but Congress read a horrible law in 1996. Although actually the Tenth Circuit kicks it off with the fact that five presidents did not find this broad authority for nearly 30 years after IRIR. Quote, a statute's broader context includes the long-standing practice of the government, end quote. From Loper Bright itself, that, by the way. The executive's consistent practice isn't determinative of whether it has the power to mandatorily detain Ewis, but it gets weight, explains the court. Jennings v. Rodriguez Dicta, and logic supports this too. The Tenth Circuit is starting out skeptic of the Trump administration's legal positions for these reasons, which honestly everyone should be, literally always, in every context in which the White House has expressed interest in a legal question. The real meat, as I mentioned though, comes down to statutory interpretation regarding seeking admission, and here the court aligns with the majority of circuits. Applicant for admission and seeking admission are separate, distinct terms, explains the court, with applicant for admission being statutorily defined, and Mr. Santianqueros remains that, as has been conceded in every circuit, I believe, that these people are still applicants for admission. In contrast, though, in relying on dictionaries, quote, a non-citizen is seeking admission when he takes some kind of ongoing action to request lawful entry into the United States, end quote. And that, Mr. Santian Quieros is not doing. Quote, a person cannot make a present request for permission to enter the United States lawfully or otherwise once he or she has already entered, end quote. Heck, they can't request admission anymore once they're here, explains the court, relying on immigration law and Supreme Court precedent. Quote, the only time a non citizen can be said to be seeking admission is when he is seeking to enter the United States at the border, end quote. The INA's structure supports this, reasons the court. And it then goes on for quite some time to explain why the government is wrong. But I mean, as the issue has gone to oral argument in every circuit now, do we really need to know why it is? Do you? I don't think so. Let's move on. Okay, fine. Quote, like Schrdiner's cat is simultaneously dead and alive, applicant for admission simultaneously takes on both its ordinary and statutory meetings in the government's hands. End quote. Can't do that. No, no, no, no, no. And of course, it's all pretty flimsy statutory reasoning for the quote, millions of non-citizens that would potentially subject to detention without bond. End quote. Thanks for keeping your eye on the issue, Tenth Circuit. The court also spends a lot of time addressing the Fifth and Eighth Circuits, and the dissenting judges from the circuits that have ruled in favor of Bond. Because again, everyone expects that this is going to the Supreme Court, probably, I guess. Lots of reasoning based on the canon against surplusage, though, not gonna lie, something the Supreme Court kind of held wasn't that important just a week ago in a lo Trelado. Don't love that. And how about this? Haven't seen this reasoning before. The Tenth Circuit explains that Section 236A, that is the bond hearing statute, must cover some inadmissible non citizens. Now it won't cover Section 212A7, folks, because they are parolees. But 212A6 Ewis, it must. Because Section 236 C mandatory detention then expressly takes away the right of certain inadmissible non-citizens to obtain a bond. That means to the court the Section 236 provisions must envision that some inadmissible peoples are bond eligible. And those people are the Iwis. And then, of course, the Lakin Riley Act stuff, where Congress recently expressly subjected some Iwis to mandatory detention, but not others, implicitly recognizing that not all Iwis are subject to mandatory. Obviously. I don't know, I'm still bitter that an IJ rejected that argument when I made it like a year and a half ago. Quote When Congress adopts a new law against the backdrop of a long standing administrative or judicial construction, courts generally presume the new provision should. Be understood to work in harmony with what has come before. Supporting all this explains the court is the doctrine of constitutional avoidance. Letting the Trump administration do what it wants here and immigrationally imprison millions of our neighbors with no real justification would raise some serious constitutional concerns. You don't say. We conclude by recognizing again the stakes of this dispute over statutory interpretation. In our circuit, thousands of non-citizens are likely subject to mandatory detention under the government's newfound statutory reading and policy. Many more legal battles over this policy are currently playing out in courts across the country. Five circuits have already weighed in. Ultimately, only one, the Supreme Court, can settle this issue once and for all. But in this case, and for this circuit, we are tasked with deciding whether this petitioner, Mrs. Centilian, must continue to be detained without even a bond hearing. He need not. End quote. Micrap. As such, congrats yet again to all these important ACLU lawyers fighting this fight. Also, I see you former ALA President Kelly Stump on briefs as well. And a boatload of amicus too lengthy to name. And that is Santian, Keros, the Mark Wayne Mullen. 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 Tatselli, 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.