النص الكامل لحلقة Ep. 332 - Precedential Decisions: 8/31/2026 - 09/6/2026 (holistic CAT; State of Exception; credibility; no-notice & change of law; Venezuela asylum; robbery; withholding review; CIMT; child abuse; Circumvention of Lawful Pathways; amending pleadings)

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. 00:02:48.479 --> 00:02:52.319 So, without further ado, let's start the review. 00:02:58.639 --> 00:03:02.319 Welcome to another week of the Immigration Review Podcast. 00:03:02.560 --> 00:03:08.400 I am not going to talk about the USCIS Visa Overstay Adjustment of Status Nonsense memo. 00:03:08.800 --> 00:03:10.159 Bring on the lawsuit. 00:03:10.400 --> 00:03:12.319 What a cruel administration. 00:03:12.560 --> 00:03:16.639 But also Justice Barrett and the majority gave them the path and patel. 00:03:16.800 --> 00:03:29.039 But also Mitch McConnell stole Merrick Garland's seat after Justice Scalia passed, and then didn't apply the same logic to the exceptionally more egregious passing of Justice Ginsburg and the confirmation of Justice Barrett. 00:03:29.759 --> 00:03:30.639 I'm sorry guys. 00:03:30.800 --> 00:03:35.039 Once you start going down that rabbit hole of frustration, it is very hard to stop. 00:03:35.360 --> 00:03:39.680 Anyway, yes, the attack on adjustment of status has very much begun. 00:03:40.080 --> 00:03:44.560 Also, this week, the Third Circuit declined to go in Bank on Mahmoud Khalil's case. 00:03:44.800 --> 00:03:50.560 Maybe I missed what had happened, or maybe it was just never precedential before, but I also don't see a majority decision. 00:03:50.719 --> 00:03:53.199 It is the denial of rehearing in Bank, though. 00:03:53.439 --> 00:03:56.879 We do have dissents though, and it's all about jurisdiction. 00:03:57.120 --> 00:04:08.639 Reports are already discussing a petition for a writ of sortiari to the Supreme Court being filed or forthcoming, which should be granted if the court cares as much as it says it does about the First Amendment rights of human beings. 00:04:09.280 --> 00:04:10.960 The stakes couldn't be higher. 00:04:11.120 --> 00:04:24.000 As the dissenting judges conclude at the Third Circuit, quote, the judiciary serves as an inseparable element of the constitutional system of checks and balances, protecting civil liberties and checking legislative and executive discretion. 00:04:24.240 --> 00:04:30.560 We cannot fulfill that role if we write ourselves out of relevance and leave the executive branch to check itself. 00:04:30.800 --> 00:04:31.759 End quote. 00:04:39.279 --> 00:04:43.120 I am the vice president of the San Diego Lawyers Chapter this year. 00:04:43.439 --> 00:04:50.959 ACS is a nonprofit that works to advocate for laws and legal systems that support a multiracial, representative democracy. 00:04:51.199 --> 00:05:09.120 This includes a judiciary that reflects the diversity of the public it serves, democratic institutions that advance equity and justice, uphold the rule of law, and guard against abuse of power, a robust and diverse legal civil society that promotes progressive transformation of laws and legal systems, and much more. 00:05:09.360 --> 00:05:23.199 Built in response to the Federalist Society in 2001, ACS celebrates its 25th anniversary this year and is helping to organize lawyers in several communities, including new chapters in South Carolina, Indiana, and more. 00:05:23.839 --> 00:05:33.839 Hit me up if you want to get involved in the San Diego chapter and get connected to your local chapter via email at campus atacslaw.org. 00:05:33.920 --> 00:05:36.959 That's campus at acslaw.org. 00:05:37.199 --> 00:05:38.879 Links in the show notes. 00:05:39.680 --> 00:05:45.839 Having said that, in an effort to protect the judiciary, here is what the judiciary said this week. 00:05:50.959 --> 00:05:53.360 Our first case is Rodriguez Solas v. 00:05:53.439 --> 00:05:57.680 Blanche, published by the Fourth Circuit on May 21, 2026. 00:05:58.079 --> 00:06:00.319 This case is about the right to counsel. 00:06:00.639 --> 00:06:03.040 Miss Rodriguez Solas is from Honduras. 00:06:03.199 --> 00:06:07.839 She was represented for many years by an attorney appearing before the Charlotte Immigration Court. 00:06:08.000 --> 00:06:14.160 For much of that time, the case was administratively closed, although an asylum application was filed before admin closure. 00:06:14.319 --> 00:06:19.839 The case woke up again during Trump won, but four more years of delay occurred. 00:06:20.319 --> 00:06:22.079 Some of it was because of COVID, though. 00:06:22.240 --> 00:06:23.199 You guys remember COVID? 00:06:23.439 --> 00:06:24.639 I remember COVID. 00:06:24.879 --> 00:06:27.519 Things were crazy in immigration court. 00:06:27.920 --> 00:06:34.240 Before that, though, an individual hearing actually occurred in 2018, but neither counsel nor Miss Rodriguez Solas showed up. 00:06:34.480 --> 00:06:39.120 When the immigration judge called the attorney, the attorney said she failed to put the hearing in her calendar. 00:06:39.360 --> 00:06:45.920 Fortunately for the attorney and Miss Rodriguez Solas, the immigration judge reset the individual hearing and did not go in absentia. 00:06:46.399 --> 00:06:49.360 Mortality occurred, and not really a cause, but how about this? 00:06:49.519 --> 00:07:01.360 The attorney, quote, asked the court to provide a Honduran sign language interpreter for Miss Rodriguez Solas' sister, who was blind and deaf and would be testifying at Miss Rodriguez Solas' hearing. 00:07:01.600 --> 00:07:02.399 End quote. 00:07:03.519 --> 00:07:04.800 Two questions from me there. 00:07:04.959 --> 00:07:08.560 One, does Lion Bridge provide such a unique person? 00:07:08.720 --> 00:07:12.879 And two, what good is a sign language interpreter to a blind witness? 00:07:13.439 --> 00:07:22.399 Maybe I suppose it's to translate the signs that the sister is doing for the court, but how do you then converse with such witness in the other direction? 00:07:23.120 --> 00:07:25.680 Obviously there's a way, Helen Keller, all that stuff. 00:07:25.839 --> 00:07:27.920 I'm just genuinely curious. 00:07:28.240 --> 00:07:31.680 After

years and years a different immigration judge got to sign the case. 00:07:31.920 --> 00:07:38.800 The matter was set for a merits hearing, and the IJ and counsel set an outline for briefing and identified issues, and things seemed to be ready to go. 00:07:39.040 --> 00:07:43.360 But about seven weeks before the final hearing, the longtime attorney moved to withdraw. 00:07:43.519 --> 00:07:50.000 And that's after over a decade of representation, technically, because what is administratively closed never dies. 00:07:50.879 --> 00:07:56.879 The IJ granted the motion to withdraw seven days later, so about six weeks before the individual hearing. 00:07:57.439 --> 00:08:08.560 By the way, in a footnote, we learn that there is one and only one Honduran Sign Language interpreter, and that interpreter did the sisters' separate asylum hearing. 00:08:08.959 --> 00:08:10.160 The more you know. 00:08:10.800 --> 00:08:12.240 Back to the case at hand. 00:08:12.399 --> 00:08:17.040 Now attorneyless, Miss Rodriguez Solas requested more time to secure an attorney. 00:08:17.199 --> 00:08:21.680 She said the attorneys that she had contacted couldn't take her case on such short notice. 00:08:21.920 --> 00:08:29.920 The IJ denied based on how long everything had been pending, and the fact that the IG believed that Miss Rodriguez Solas had had enough time to get a new attorney. 00:08:30.240 --> 00:08:36.159 The IJ went through the asylum application with Miss Rodriguez Solas, and it seems like she didn't really know what was in it. 00:08:36.399 --> 00:08:37.919 She didn't speak fluent English. 00:08:38.159 --> 00:08:43.440 She blamed the prior attorney for deficiencies, and the IJ seemed to defend the prior attorney a bit. 00:08:43.759 --> 00:08:51.279 The sister did end up testifying, by the way, and the IJ ultimately denied asylum based on an adverse credibility finding. 00:08:51.600 --> 00:08:56.080 The BIA affirmed it all and held that there had been no due process violation. 00:08:56.559 --> 00:08:58.960 The Fourth Circuit majority remanded. 00:08:59.200 --> 00:09:01.519 Judge Quedelbaum is in dissent. 00:09:02.000 --> 00:09:15.279 But for the majority you see, the INA itself provides non-citizens the right of, quote, the privilege of being represented at no expense to the government by counsel of the non-citizens choosing who is authorized to practice in such proceedings. 00:09:16.879 --> 00:09:33.279 And matter of CB, BIA 2012, apparently holds that unless a non-citizen waives that right, IJs, quote, must, end quote, afford non-citizens, quote, a reasonable and realistic period of time to provide a fair opportunity to seek, speak with, and retain counsel. 00:09:35.039 --> 00:09:38.480 Violated here under these circumstances, explains the court. 00:09:38.799 --> 00:09:40.000 Much comes down to whether Mr. 00:09:40.480 --> 00:09:45.519 Gasilas had enough time to get a new attorney, but even that time period is all over the place to the court. 00:09:45.759 --> 00:09:52.399 The IJ, BIA, OIL, and petition for review counsel all argue that it was a slightly different amount of time. 00:09:52.639 --> 00:10:02.960 The Fourth Circuit seems to think it was about a month, but also faults the BIA for not accounting for the fact that there was also briefing due before the hearing, making the time to get counsel that much shorter. 00:10:03.279 --> 00:10:15.200 And in any event, quote, a new lawyer would need time to build rapport with both Miss Rodriguez Solas and her sister to elicit the sort of extremely traumatic testimony necessary for her asylum hearing, end quote. 00:10:15.360 --> 00:10:20.480 And they'd have to navigate how on earth to get witness testimony from a blind and deaf witness. 00:10:20.720 --> 00:10:23.440 Quite the fact that one, I do keep coming back to it. 00:10:23.600 --> 00:10:24.480 Quite unique. 00:10:24.799 --> 00:10:33.360 It is therefore, quote, unsurprising that Miss Rodriguez Solas could not find a new lawyer to take her case in the face of two quickly approaching deadlines, end quote. 00:10:33.679 --> 00:10:42.960 Reframed, the Fourth Circuit explains that actually this was actually only Miss Rodriguez Solas' first request for more time to get a new lawyer after more than a decade of representation. 00:10:43.519 --> 00:10:52.080 Given this and the absence of evidence that this was merely a dilatory tactic, the court held that the IJ violated Miss Rodriguez Solas' statutory right to counsel. 00:10:52.399 --> 00:10:59.039 The Fourth Circuit rejected Oyle's argument that given that only she and her sister needed to testify, she didn't really need a lawyer anyway. 00:10:59.200 --> 00:11:06.559 Quote, besides trivializing the important work of immigration lawyers, that argument gets the statutory framework backwards. 00:11:06.799 --> 00:11:21.840 Like the similarly worded Sixth Amendment provision, with which it shares obvious similarities, the statutory provision we are dealing with here does not say non-citizens in removal proceedings have a right to be represented by a lawyer if but only if they can establish they need one to effectively make their case. 00:11:22.080 --> 00:11:24.080 End quote, they just get one. 00:11:24.159 --> 00:11:25.679 That's what the statute says. 00:11:25.919 --> 00:11:27.360 If they can pay for it. 00:11:27.679 --> 00:11:30.960 And score one for the immigration lawyers in the Fourth Circuit. 00:11:31.759 --> 00:11:36.960 The Court rejected some other silly arguments from Oyle 2, if I'm being honest, which I always am. 00:11:37.279 --> 00:11:41.840 The court also distinguished decisions out of the Sixth, First, and Ninth Circuits. 00:11:42.399 --> 00:11:48.080 Having found that the right was violated, the Fourth Circuit remanaged so the BIA could determine in the first instance whether Mr. 00:11:48.240 --> 00:11:50.639 Rodriga Solos was prejudiced by all this. 00:11:51.039 --> 00:11:54.320 But isn't prejudice resumed when the right to counsel is denied?

00:11:54.559 --> 00:11:56.320 I am slightly confused, Court. 00:11:56.480 --> 00:11:57.519 A little confused. 00:11:58.080 --> 00:12:02.000 And here we go, Miss Rodriguez Solos made that very argument, among a few others. 00:12:02.480 --> 00:12:09.360 Well, it looks like in the past the Fourth Circuit held that prejudice was required under facts like this, so that's a star decisis problem. 00:12:09.919 --> 00:12:19.120 Then again, acknowledges the Fourth Circuit, there's its recent Guntero decision, and other important cases, indeed recognizing that in similar contexts, prejudice can be presumed. 00:12:19.759 --> 00:12:29.759 Given all that, though, it seems that the court is kicking it to the BIA for the BIA to determine whether prejudice is presumed for such a statutory violation, among other related things. 00:12:30.159 --> 00:12:30.639 Meh. 00:12:31.120 --> 00:12:33.200 Big meh energy from this guy. 00:12:34.000 --> 00:12:43.360 Judge Quaddlebaum in dissent sees this as an abusive discretion issue that doesn't meet the standard and worries that the majority gives non-citizens too many Sixth Amendment rights. 00:12:44.320 --> 00:12:50.480 With a remand, congratulations, Parisa Sadeghi, Andres Lopez, and Benjamin Winograd. 00:12:50.799 --> 00:12:52.000 For petitioner. 00:12:52.960 --> 00:12:54.720 And that is Rodrigo Solas V. 00:12:54.799 --> 00:12:55.519 Blanche. 00:13:03.679 --> 00:13:05.120 Two from the BIA this week. 00:13:05.200 --> 00:13:07.519 First, matter of IBMS. 00:13:08.320 --> 00:13:11.679 The flounder that is the BIA is back this week. 00:13:12.159 --> 00:13:14.480 Sincere thanks for taking last week off, guys. 00:13:14.639 --> 00:13:15.519 Really mean it. 00:13:15.919 --> 00:13:26.639 And honestly, I don't actually know what it means to refer to the BIA as a flounder, but a longtime listener and recently minted bright new paralegal wrote me this week and referred to the BIA as a flounder. 00:13:26.879 --> 00:13:28.799 And well, it made me chuckle. 00:13:29.039 --> 00:13:30.639 So I share it with you all. 00:13:30.960 --> 00:13:34.480 This is a matter of IBMS published by the Flounder. 00:13:35.120 --> 00:13:42.799 And with a name like that, I'm not gonna do the chip processor pun, and I'm certainly not gonna do a gastrointestinal pun on the case name. 00:13:42.960 --> 00:13:44.960 Tempt me as you might, BIA. 00:13:45.519 --> 00:13:47.039 I am better than that. 00:13:47.519 --> 00:13:48.480 Pro se Mr. 00:13:48.639 --> 00:14:08.799 IBMS didn't respond to the appeal because, well, he's pro se the BIA issued this holding and states as one of its top line holdings that, quote, an immigration judge must act as a neutral and impartial arbiter, and the obligation of neutrality extends equally to an immigration judge's treatment of both parties. 00:14:09.039 --> 00:14:09.759 End quote. 00:14:10.159 --> 00:14:12.879 Who, Pray Tell, are you reminding BIA? 00:14:13.360 --> 00:14:14.480 Let's find out. 00:14:15.200 --> 00:14:22.639 This is an

interlocutory appeal, which the BIA states it rarely entertains, though it has done so like ten times in the last year and a half. 00:14:22.799 --> 00:14:25.519 All DHS appeals, if I'm not mistaken. 00:14:26.399 --> 00:14:28.480 This is about a change of venue motion. 00:14:28.799 --> 00:14:36.720 The respondents are from Brazil and entered without authorization near El Paso, but the notice to appear was filed by DHS in the Boston Immigration Court. 00:14:36.879 --> 00:14:44.240 Two master calendar hearings occurred, and then there was a merits hearing set, and then that hearing actually went forward, the merits hearing. 00:14:44.559 --> 00:14:53.279 Before that, two EOAR 33 change of address forms were filed, but both were in the same city and had the same zip code as the address in the notice to appear. 00:14:53.440 --> 00:14:55.039 So that's a little weird. 00:14:55.519 --> 00:14:58.720 Direct examination occurred at the merits hearing. 00:14:58.960 --> 00:15:00.960 And it's all happening over WebEx. 00:15:01.360 --> 00:15:04.000 Then counsel for the respondent requested a recess. 00:15:04.080 --> 00:15:07.679 Quote, the IJ engaged in an off-the-record conversation with the parties. 00:15:07.840 --> 00:15:12.639 According to the IJ's summary of the off-the-record discussion, it related to asylum derivation. 00:15:12.879 --> 00:15:19.120 It related to asylum derivation issues and the responsibility to request a change of venue, end quote. 00:15:19.360 --> 00:15:24.720 This after apparently counsel said at the beginning of the hearing that a venue change wasn't desired. 00:15:25.039 --> 00:15:30.320 Then, though, a venue change motion was made for transfer to the Chelmsford Immigration Court. 00:15:30.559 --> 00:15:34.799 The motion was granted, even though the respondents were appearing over WebEx. 00:15:35.600 --> 00:15:42.240 So I'm not gonna lie, the BIA has picked an extraordinary fact pattern to rule against a motion to change venue grant. 00:15:42.480 --> 00:15:44.080 That's kind of wild. 00:15:44.559 --> 00:15:54.960 That said, the zip code and the EYR 33, and I suppose the notice to appear, did align with the Channelsford Immigration Court, according to that EOIR zip code finder thingy that they now use. 00:15:55.679 --> 00:15:59.600 All of this is happening over DHS's objection, so DHS appealed. 00:15:59.759 --> 00:16:03.519 Interlocutor, because the case isn't over, it's just about a change of venue. 00:16:03.759 --> 00:16:05.919 The BIA sustained the appeal. 00:16:06.240 --> 00:16:10.559 Motions to change venue are granted for good cause, that amorphous term. 00:16:11.039 --> 00:16:29.440 In the venue change context, quote, relevant factors including administrative convenience, expeditious treatment of the case, the location of the witnesses, cost of transporting witnesses or evidence to a new location, factors commonly associated with a non-citizen's place of residence and the position of the opposing party, end quote, should be considered. 00:16:29.759 --> 00:16:37.360 No factor is necessarily weighed heavier than others, explains the BIA, but then it goes right to the importance of expeditious treatment of the case. 00:16:37.600 --> 00:16:47.919 The BIA explains that this factor weighs heavier against a venue change as proceedings progress, and particularly when an individual hearing has been scheduled or already commenced, as occurred here. 00:16:48.159 --> 00:16:55.279 And quote, absent extraordinary circumstances, venues should not be changed the day of an individual hearing, end quote. 00:16:55.759 --> 00:17:00.080 The BIA doesn't believe that the IJ balanced any of that in this case. 00:17:00.480 --> 00:17:21.039 As to the zip code thing that I do believe IJs rely on kind of heavy these days, quote, the mere fact that the respondents reside in a zip code corresponding with another court is insufficient cause to outweigh the other significant factors that militate against changing venue at this late stage of proceedings, including DHS's opposition and the need for expeditious treatment of the case. 00:17:21.200 --> 00:17:22.000 End quote. 00:17:22.319 --> 00:17:24.000 So definitely some qualifiers there. 00:17:24.160 --> 00:17:26.400 Zip code thing's still powerful, I guess. 00:17:26.640 --> 00:17:31.119 Not to mention no prejudice, it seems anyway, given that it was a WebEx individual hearing. 00:17:31.359 --> 00:17:36.319 Or at least none shown here in the undefended pro se appeals defense. 00:17:37.279 --> 00:17:40.640 The BIA also isn't happy with the off-the-record discussion. 00:17:40.880 --> 00:17:44.799 I personally believe them helpful under appropriate circumstances. 00:17:45.119 --> 00:17:49.200 Judge Bartolome, who I interviewed last year, would never do them, in my experience. 00:17:49.359 --> 00:17:50.880 He has an opposite view. 00:17:51.200 --> 00:18:04.240 The BIA states here that IJs should limit them, and that parties shall be given the opportunity to add or amend to summaries done by the IJ, which quite frankly has always been offered to me in my experience, and to DHS counsel. 00:18:04.480 --> 00:18:09.440 In this case, though, the BIA doesn't believe the IJ properly memorialized the off-the-record conversation. 00:18:09.680 --> 00:18:13.759 Nor does the BIA like that the IJ unmarked previously marked exhibits. 00:18:13.920 --> 00:18:21.599 Even if the venue change had been proper, explains the BIA, proceedings still continue, just at a new court, so the exhibits can remain. 00:18:21.920 --> 00:18:36.160 Explains the BIA, while IJs have broad authority to conduct and control immigration proceedings, provided they avoid the BIA's landmines being issued every week, IJs must still act as, quote, neutral and impartial arbiters to both parties, end quote. 00:18:36.400 --> 00:18:39.759 Fundamental fairness demands it, explains the BIA. 00:18:40.160 --> 00:18:45.920 DHS II must, quote, be afforded a meaningful opportunity to be heard, end quote.

00:18:46.480 --> 00:18:58.079 Does an IJ who takes over direct or cross-examination, pretermit applications without motion, or deny motions where no response is filed, act as a neutral and impartial arbiter, BIA? 00:18:58.400 --> 00:19:00.559 Truly asking for a friend. 00:19:00.960 --> 00:19:08.640 Particularly that cross-examination question, BIA, if you could get back to me on whether that is a neutral and impartial arbiter. 00:19:09.519 --> 00:19:20.799 But quote, here, the immigration judge's comments and conduct during the individual hearing raise concerns regarding neutrality and create an appearance of bias, which is inconsistent with the IJ's role in these proceedings. 00:19:22.160 --> 00:19:29.039 The BIA is particularly troubled by the IJ's statement that she often gives deference to a non-citizen's venue choice. 00:19:29.680 --> 00:19:34.240 So, IJs, you cannot often give preference to DHS's venue choice. 00:19:34.960 --> 00:19:40.480 Quote, IJs must assiduously refrain from becoming advocates for either party, end quote. 00:19:41.119 --> 00:19:44.480 So I guess that does answer my cross-examination question, guys. 00:19:44.720 --> 00:19:46.400 IJs shouldn't do it. 00:19:46.799 --> 00:19:48.400 You heard it here from the BIA. 00:19:49.200 --> 00:19:55.920 Bias was so strong based on that statement made by the IJ that the BIA reassigned the case to a different judge on remand. 00:19:56.240 --> 00:19:57.920 My goodness, the bias. 00:19:58.720 --> 00:20:07.440 Also pretty interesting that the BIA would go out of its way to reassign the case when it surely knows, as I do through my sources, that the IJ was already fired. 00:20:07.839 --> 00:20:10.000 Are you just trying to make a point, BIA? 00:20:10.319 --> 00:20:12.079 That's not very appellate of you. 00:20:12.640 --> 00:20:18.640 I will fall on my sword if my sources were wrong and that transfer to a different IJ was actually necessary. 00:20:19.119 --> 00:20:21.519 Summon at the BIA, feel free to get back to me. 00:20:22.000 --> 00:20:24.079 But DHS won its appeal. 00:20:25.039 --> 00:20:27.440 And that is a matter of IBMS. 00:20:40.079 --> 00:20:41.039 I know I didn't. 00:20:41.200 --> 00:20:42.240 Yet here you are. 00:20:42.559 --> 00:20:49.279 H1B season in full swing, and your team is buried in beneficiary forms, document chasing, and data entry. 00:20:49.440 --> 00:20:54.160 That's$400 an hour in legal talent doing$20 an hour work. 00:20:54.480 --> 00:20:56.960 Staffi plugs directly into your workflow. 00:20:57.200 --> 00:21:01.599 Staffi handles the data entry, document collection, and H1B form prep. 00:21:01.759 --> 00:21:04.799 Your team reviews it, you approve it, you bill. 00:21:05.039 --> 00:21:13.839 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. 00:21:14.079 --> 00:21:18.319 Say yes to more H1B clients without burning out your team. 00:21:18.559 --> 00:21:27.200

Visit staffy.cc or call 786-891-5619 or click on the special link in the show notes. 00:21:27.440 --> 00:21:31.519 Because you deserve a practice that grows without burning you out. 00:21:33.680 --> 00:21:37.599 Moving on to Matter of LAD published by the BIA, Matter of Lad. 00:21:38.559 --> 00:21:40.880 Asylum Denial Fridays. 00:21:41.279 --> 00:21:46.400 This one regarding a Mexican man with schizophrenia deemed incompetent to represent himself. 00:21:46.640 --> 00:21:50.319 The BIA has overturned an immigration judge's grant of asylum. 00:21:50.640 --> 00:21:56.160 The asserted particular social group is, quote, Mexican men with schizoaffective disorder, end quote. 00:21:56.400 --> 00:21:58.160 The BIA doesn't like the group. 00:21:58.640 --> 00:21:59.759 A particular social group, of course. 00:22:00.319 --> 00:22:09.279 Must one be composed of members who share a common immutable characteristic, two, defined with particularity, and three, be socially distinct within the society in question. 00:22:09.680 --> 00:22:18.960 The BIA states without citation that, quote, particular social groups related to mental illnesses present distinct cognizability challenges, end quote. 00:22:19.359 --> 00:22:27.920 Mental health conditions change, and even if they don't, the symptoms often do over time or diverge even between individuals with the same mental health issue, explains the BIA. 00:22:28.079 --> 00:22:30.240 Plus, medication can sometimes help. 00:22:30.480 --> 00:22:49.519 As such, in its campaign to rewrite immigration law, the BIA makes this expansive holding, quote, in most cases, a particular social group based on a diagnosis alone will not be cognizable, considering the broad spectrum of severity and symptoms covered and the extent to which symptoms are reasonably controlled by medication, end quote. 00:22:50.000 --> 00:22:58.799 Now, non-citizens can narrow their particular social group, but then that narrowing might result in the particular social group not having clear boundaries, explains the BIA. 00:22:59.119 --> 00:23:02.000 So kind of damned if you do, damned if you don't, right? 00:23:02.960 --> 00:23:12.480 You cannot narrow a diagnosis-based particular social group by adding, quote, undefined potential symptoms that could be present with a diagnosis, end quote. 00:23:12.880 --> 00:23:14.079 What will cut it? 00:23:14.319 --> 00:23:16.240 The BIA isn't very clear. 00:23:16.720 --> 00:23:22.000 Very good at saying no these days, though, but not very clear at what wins the day. 00:23:22.240 --> 00:23:24.640 Here the particular social group did not succeed. 00:23:24.799 --> 00:23:30.880 Quote, the term schizoaffective disorder covers a broad spectrum of behavior exhibited with varying degrees of severity. 00:23:31.039 --> 00:23:35.839 The proffered group does not include any limiting language to narrow its breath, end quote. 00:23:36.160 --> 00:23:47.920 And even though the IJ narrowed it, literally in conformance with some Fourth Circuit precedent, I think, the BIA doesn't believe the narrowing characteristics defined in the record or the record evidence sufficient on this point. 00:23:49.039 --> 00:23:54.400 All that holding is about particularity, but the BIA also doesn't see the group as socially distinct either. 00:23:54.640 --> 00:24:08.079 Quote, for particular social groups related to mental illness, the proper consideration is whether society perceives individuals in the proposed group distinctly, not whether a doctor or psychologist would view one mental health illness as distinct from another. 00:24:09.920 --> 00:24:17.359 And would Mexican society really, for example, differentiate between someone with bipolar disorder as opposed to someone with schizophrenia? 00:24:17.519 --> 00:24:19.359 The BIA doesn't think so. 00:24:20.079 --> 00:24:30.480 Ruining my Friday evening, the BIA then proceeded to assume the group cognizable and write four more pages about why, regardless, asylum is too speculative to be granted on that basis. 00:24:30.720 --> 00:24:35.200 The circuits have done this dance for years and come out in different ways, so check your circuit. 00:24:35.359 --> 00:24:38.000 Here's the BIA's version summarized. 00:24:38.319 --> 00:24:39.039 Maybe Mr. 00:24:39.119 --> 00:24:40.799 Ladd can get treatment in Mexico. 00:24:40.880 --> 00:24:42.160 The BIA doesn't know. 00:24:42.319 --> 00:24:43.680 That cuts against him. 00:24:43.839 --> 00:24:45.599 And maybe his family can support him. 00:24:45.759 --> 00:24:47.200 BIA is unsure. 00:24:47.680 --> 00:24:50.400 Regardless, the BIA believes it's speculative that Mr. 00:24:50.480 --> 00:24:54.720 Ladd would behave in a way that got him involuntarily institutionalized. 00:24:54.960 --> 00:25:02.640 And even if that happened, the BIA doesn't think he'd be harmed on account of his membership in this group, even if his conditions were bad in that facility. 00:25:02.880 --> 00:25:11.839 Countries have a right to involuntarily detain and treat, quote, potentially dangerous mental illnesses, end quote, explains the BIA, relying on that rough Jossie V. 00:25:11.920 --> 00:25:14.880 Garland decision from the Fourth Circuit a few years ago. 00:25:15.119 --> 00:25:28.319 Quote, determining the appropriate allocation of resources to address involuntary mental health treatment is part of a nation's sovereignty authority and thus well beyond the authority of the immigration courts or the BIA to assess, end quote. 00:25:28.559 --> 00:25:30.880 The BIA sees no motivation to harm Mr. 00:25:31.039 --> 00:25:31.759 Ladd either. 00:25:31.920 --> 00:25:35.200 Lack of resources and training at worst to the board. 00:25:35.920 --> 00:25:39.599 To the extent there is record evidence, well, it's not specific enough to Mr. 00:25:39.759 --> 00:25:40.079 Ladd. 00:25:40.319 --> 00:25:41.920 That common refrain. 00:25:42.480 --> 00:25:45.519 Oh, the evidentiary burden asylum seekers have. 00:25:46.079 --> 00:26:00.880 Attempting to expand

matter of JFF into asylum, the BIA states without any citation that, quote, a series of speculative occurrences that also lack evidence of persecutory intent is insufficient to demonstrate a well-founded fear of persecution. 00:26:01.119 --> 00:26:01.839 End quote. 00:26:02.400 --> 00:26:04.559 Though 10% chance is the standard. 00:26:04.960 --> 00:26:06.400 Remember it, folks. 00:26:07.200 --> 00:26:10.240 BIA doesn't see a pattern or practice claim either. 00:26:11.039 --> 00:26:19.839 Anyone else getting the feeling that the BIA is loading up on precedent to then eventually summarily and brutally tear through its backlog whenever the hammer falls? 00:26:20.559 --> 00:26:21.440 Hope not. 00:26:21.839 --> 00:26:22.880 Seems likely. 00:26:23.279 --> 00:26:23.920 As for Mr. 00:26:24.079 --> 00:26:30.480 Ladd, he has lost his asylum grant, but will now have the opportunity to pursue a convention against torture protection on Reman. 00:26:31.039 --> 00:26:33.680 But with friends like these, I'm not hopeful. 00:26:34.640 --> 00:26:36.799 And that is a matter of L A D. 00:26:45.039 --> 00:26:47.279 Concluding with two from the First Circuit. 00:26:47.440 --> 00:26:49.279 The first, Vasquez Chavez v. 00:26:49.359 --> 00:26:53.519 Blanche, published by the First Circuit on May 22nd, 2026. 00:26:54.160 --> 00:26:55.920 This case is about asylum. 00:26:56.240 --> 00:26:56.400 Mr. 00:26:56.559 --> 00:27:01.599 Vasquez Chavez is from El Salvador and testified to years of abuse from his family as a child. 00:27:01.759 --> 00:27:05.359 He fled to America in 2016 after his father tried to kill him. 00:27:05.599 --> 00:27:11.279 Barely an adult at that time, he was granted voluntary departure but returned shortly thereafter. 00:27:11.759 --> 00:27:15.519 Rather than reinstate a removal order, as I believe DHS could have done, Mr. 00:27:15.680 --> 00:27:20.000 Vasquez Chavez was placed in removal proceedings where he brought an asylum claim. 00:27:20.240 --> 00:27:26.319 Most relevantly, an IJ denied, deeming it all merely a family dispute, albeit a very dangerous one. 00:27:26.720 --> 00:27:32.400 Corroboration issues too, and I'm skipping over quite a bit as it's not very relevant to the disposition. 00:27:32.640 --> 00:27:36.240 The BIA affirmed as did the First Circuit. 00:27:36.720 --> 00:27:44.000 Explains the court, quote, personal disputes are generally not enough to show the required nexus between past harm and a protected ground. 00:27:45.680 --> 00:27:50.559 Now true recognizes the First Circuit, and all but forgotten by the BIA these days. 00:27:50.799 --> 00:28:01.440 The INA and the regulations literally state that the testimony of a non-citizen, including an asylum seeker, may be sufficient for that non-citizen to obtain immigration relief. 00:28:02.079 --> 00:28:07.359 IJs just don't have to make that finding if they think corroborating evidence is necessary. 00:28:07.519 --> 00:28:11.680 And well, the BIA seems to believe that that is the case always these days. 00:28:11.920 --> 00:28:13.839 So who is an IJ to disagree? 00:28:14.720 --> 00:28:15.920 That's me on a tangent. 00:28:16.000 --> 00:28:18.960 There were actual issues identified by the IJ here. 00:28:19.680 --> 00:28:25.119 Now it's true, the IJ did hold that the harm suffered rose to the level of past persecution. 00:28:25.279 --> 00:28:29.440 But that doesn't mean past persecution, explains the First Circuit. 00:28:29.680 --> 00:28:32.640 You still need a nexus to a protected ground. 00:28:32.880 --> 00:28:38.400 Again, the court agrees that this looks more like a very dysfunctional family, rather than harm on account of Mr. 00:28:38.480 --> 00:28:41.920 Basquez Chavez being part of any particular social group. 00:28:42.160 --> 00:28:50.799 Not only that, but the First Circuit agrees with the IJ's denial based on a lack of corroborating evidence regarding whether the Salvadoran government was willing or able to protect Mr. 00:28:50.880 --> 00:28:53.119 Basquez Chavez from his father. 00:28:53.359 --> 00:28:56.640 That's where the corroboration was apparently needed. 00:28:57.039 --> 00:29:01.759 And it was needed in part because of apparent inconsistencies in the testimony to the IJ. 00:29:02.000 --> 00:29:10.240 So the IJ wanted corroborating evidence about how police were notified in the past and affidavits from other family members about what happened. 00:29:10.400 --> 00:29:12.559 None were apparently provided. 00:29:13.039 --> 00:29:17.839 Particularly given the standard of review, it was all affirmed by the First Circuit. 00:29:18.000 --> 00:29:18.720 Which is why Mr. 00:29:18.799 --> 00:29:21.119 Vasquez Chavez lost his case. 00:29:21.920 --> 00:29:23.839 And that is Vasquez Chavez v. 00:29:23.920 --> 00:29:24.640 Blanche. 00:29:32.559 --> 00:29:34.799 We conclude then with United States v. 00:29:34.880 --> 00:29:39.200 Pimental, published by the First Circuit on May 20th, 2026. 00:29:39.759 --> 00:29:46.000 This is a sentence enhancement case about quite a few things, but we'll skip to the part that matters for immigration purposes. 00:29:46.319 --> 00:29:55.119 Massachusetts carjacking in violation of Mass General Laws Chapter 265, Section 21A is not a sentence enhancement crime of violence. 00:29:55.599 --> 00:30:04.559 And because that crime of violence definition is materially identical to the immigration definition, I guess it's not an immigration crime of violence aggravated felony either. 00:30:04.799 --> 00:30:23.839 The Massachusetts statute reads as follows Quote Whoever with the intent to steal a motor vehicle assaults, confines, maims, or puts any person in fear for the purpose of stealing a motor vehicle shall, whether he succeeds or fails in the perpetration of stealing the motor vehicle, be punished by imprisonment in the state prison, blah blah blah blah blah blah blah. 00:30:24.000 --> 00:30:24.960 End quote. 00:30:25.519 --> 00:30:30.720 Now right off the bat, that intent to steal thing very well

might make it an aggravated felony theft offense. 00:30:30.880 --> 00:30:37.359 But I don't think such things exist in the sentence enhancement world, and who am I to make such anti-immigrant arguments? 00:30:37.599 --> 00:30:40.000 Let's focus on the analysis at hand. 00:30:40.400 --> 00:30:47.440 It's not a crime of violence because the categorical approach to criminal statute interpretation requires a focus on the least culpable conduct. 00:30:47.599 --> 00:30:52.799 In the first circuit, or at least to this panel, non-citizens must satisfy the realistic probability test every time. 00:30:52.880 --> 00:31:00.079 There must be a realistic probability that a statute would apply to conduct that falls outside the generic federal definition that we're trying to match to. 00:31:00.240 --> 00:31:02.720 Here, sentence enhancement crime of violence. 00:31:02.960 --> 00:31:10.000 It's just that in the first circuit, explains the court, the plain text of the state crime can satisfy the realistic probability test. 00:31:10.960 --> 00:31:18.000 The government conceded here that the statute is not divisible into separate crimes, so the whole thing is a crime of violence, or none of it is. 00:31:18.720 --> 00:31:30.400 As to the elements of the offense, quote, a defendant one, with intent to steal a motor vehicle, two, assaults, confines, maims, or puts any person in fear, three, for the purpose of stealing the motor vehicle. 00:31:30.559 --> 00:31:31.200 End quote. 00:31:31.440 --> 00:31:34.079 Those are the elements required to convict. 00:31:34.720 --> 00:31:42.960 And we're trying to match that up to the crime of violence definition, which requires, quote, the use, attempted use, or threatened use of physical force against another person. 00:31:43.200 --> 00:31:44.000 End quote. 00:31:44.319 --> 00:31:50.240 The immigration definition at the crime of violence provision adds property to the end of that definition too. 00:31:50.960 --> 00:31:55.680 First Circuit case law explains the court equates assault with mere touching. 00:31:55.839 --> 00:31:59.359 And remember, assault is used in that Massachusetts definition. 00:31:59.680 --> 00:32:08.880 Now it's mere offensive touching to be specific, but that's not necessarily the degree of violent or physical force required of Supreme Court precedent to be a crime of violence. 00:32:09.039 --> 00:32:13.920 The force need not be the type that creates, quote, physical pain or injury, end quote. 00:32:14.240 --> 00:32:20.240 This despite Massachusetts case law recognizing that carjacking is an inherently violent offense. 00:32:20.400 --> 00:32:25.920 Quote, we must train our analysis on the statutory elements before us, end quote. 00:32:26.240 --> 00:32:33.279 Seems kind of like dicta anyway, from the Massachusetts courts to the First Circuit, or at least to me reading the First Circuit. 00:32:33.599 --> 00:32:39.920 Now, yes, when reading criminal statutes, explains the court, you need to read terms and context next to the other elements. 00:32:40.400 --> 00:32:48.319 So like the case the First Circuit discusses where someone must assault with the intent to kill, well, that materially alters the word assault. 00:32:48.400 --> 00:32:51.119 That's a pretty high level of assault, right? 00:32:51.519 --> 00:32:56.079 But here you have to assault with the intent to permanently deprive someone of a car. 00:32:56.400 --> 00:33:00.960 Nothing necessarily violent about stealing, explains the First Circuit. 00:33:01.440 --> 00:33:08.160 So it seems to me that literally any Massachusetts crime that incorporates the word assault is not a crime of violence. 00:33:08.640 --> 00:33:10.319 But that's just little old me. 00:33:11.039 --> 00:33:19.359 Don't need to find an exemplar case prosecuting this, as the US government was arguing, because again, the plain text of the statute wins the day. 00:33:19.839 --> 00:33:25.920 Be gone with that attempt to expand bad Fifth Circuit case law into New England, Department of Justice. 00:33:27.119 --> 00:33:28.799 So, surely a U.S. 00:33:28.960 --> 00:33:29.680 citizen, Mr. 00:33:29.759 --> 00:33:33.839 Pemintar is getting less time for his bank robbery conviction. 00:33:34.480 --> 00:33:38.079 He would have got more time if this carjacking conviction was a crime of violence. 00:33:38.480 --> 00:33:41.359 And that's all because the categorical approach is powerful. 00:33:41.599 --> 00:33:43.519 And because, never forget, U.S. 00:33:43.680 --> 00:33:47.599 citizens commit far more crimes in America than do non-citizens. 00:33:48.000 --> 00:33:53.119 For all of it, congratulations to Christine Damaso of the Federal Public Defenders. 00:33:54.480 --> 00:33:57.279 And that is United States the Pimental. 00:34:02.240 --> 00:34:03.440 So there you have it. 00:34:03.599 --> 00:34:07.440 You're all caught up with the past week's published immigration cases. 00:34:07.680 --> 00:34:08.480 I'm Kevin A. 00:34:08.639 --> 00:34:16.239 Gregg, a partner with the law firm Kurzban, Kurzban, Titsel, and Pratt, and this has been another episode of Immigration Review. 00:34:16.480 --> 00:34:18.960 Thank you for listening and I hope you enjoyed it. 00:34:19.199 --> 00:34:22.719 If you did, please share it with a friend and rate and review us. 00:34:22.880 --> 00:34:25.920 Each review helps new listeners find the show. 00:34:26.239 --> 00:34:31.039 And of course, subscribe to Immigration Review wherever you get your podcasts. 00:34:31.599 --> 00:34:43.840 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. 00:34:44.320 --> 00:34:56.559 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. 00:34:57.039 --> 00:35:00.960 Also, feel free to email me with questions, comments, or anything at all. 00:35:01.119 --> 00:35:05.280 And follow the show on Instagram and Facebook at Immigration Review. 00:35:05.440 --> 00:35:07.760 Or send us a tweet at Imreview. 00:35:08.000 --> 00:35:10.400 That's IMM Review. 00:35:10.800 --> 00:35:13.840 And you know we're always interested in hearing listener feedback. 00:35:14.079 --> 00:35:18.639 Like this review about the episode you just listened to from my very young son. 00:35:18.880 --> 00:35:21.440 Son, how did you like that episode? 00:35:26.960 --> 00:35:27.840 Indeed. 00:35:28.079 --> 00:35:41.119 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. 00:35:41.840 --> 00:35:45.199 I'll be back next week for a brand new discussion. 00:35:45.440 --> 00:35:47.119 Until then, I'm Kevin A. 00:35:47.280 --> 00:35:50.559 Gregg, bringing you the Immigration Review!