Credible Fear:

Three significant precedents in immigration law regarding credible fear are:

1. Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019)

● Summary: This decision by the Attorney General held that asylum seekers who
have established a credible fear of persecution or torture are not entitled to a
bond hearing before an immigration judge.
● Importance: It significantly impacted the detention of asylum seekers, making it
more difficult for them to be released on bond while their cases are pending.

2. Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018)

● Summary: The Attorney General's decision narrowed the grounds for asylum
claims based on membership in a particular social group, specifically targeting
claims related to domestic violence and gang violence.
● Importance: This precedent raised the bar for establishing credible fear in cases
involving private violence, making it harder for individuals to qualify for asylum
based on these grounds.

3. Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520 (BIA 2011)

● Summary: This decision clarified that an alien who is subject to expedited

removal and has been found to have a credible fear of persecution is eligible for
an individualized bond hearing before an immigration judge.
● Importance: It provided a pathway for certain asylum seekers to seek release
from detention, emphasizing the procedural rights of those with credible fear
claims.

The cases Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019) and Matter of E-R-M- &
L-R-M-, 25 I&N Dec. 520 (BIA 2011) address similar issues regarding the detention of
asylum seekers but ultimately lead to different outcomes, which can indeed be seen as
contradictory.

Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019)

● Summary: This decision by the Attorney General concluded that aliens who are
transferred from expedited removal proceedings to full removal proceedings after
establishing a credible fear of persecution are ineligible for bond hearings before
an immigration judge.
● Impact: As a result, individuals in this category must remain in detention until
their asylum claims are adjudicated, unless they are granted parole by the
Department of Homeland Security (DHS).

Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520 (BIA 2011)

● Summary: This decision by the Board of Immigration Appeals (BIA) held that
aliens who have passed credible fear interviews and are placed in full removal
proceedings are eligible for bond hearings before an immigration judge.
● Impact: This allowed certain asylum seekers the possibility of being released
from detention while their cases are pending.

Contradiction Analysis

● Legal Standard: The primary contradiction lies in the eligibility for bond hearings.
Matter of E-R-M- & L-R-M- allowed for bond hearings, giving immigration judges
the discretion to release certain asylum seekers from detention. In contrast,
 Matter of M-S- eliminated this possibility, mandating that these individuals
remain in detention unless granted parole by DHS.
● Detention Policy: The Matter of M-S- decision reflects a stricter detention
policy, reinforcing mandatory detention for asylum seekers who have passed
their credible fear interviews, whereas Matter of E-R-M- & L-R-M- provided a
mechanism for these individuals to be considered for release on bond.

In summary, Matter of M-S- effectively overruled the more lenient approach taken in
Matter of E-R-M- & L-R-M-, leading to a stricter application of mandatory detention for
asylum seekers who have established credible fear.

These precedents have shaped the legal landscape for credible fear determinations and
the treatment of asylum seekers in the United States.

Abandonment of Asylum Application

● Gonzalez-Veliz v. Garland (9th Circuit, 5/4/2021). The court upheld the BIA and
IJ’s conclusion that petitioner’s application for asylum and related relief had been
abandoned under 8 CFR §1003.47(c) – a failure to submit biometrics or establish
good cause for her failure to do so. (AILA Doc. No. 21051437).
● Matter of R-C-R-, 28 I&N Dec. 74 (BIA 2020). After an IJ has set a firm deadline
for the filing of an application for asylum and related relief, the respondent’s
opportunity to file the application may be deemed waived, prior to a scheduled
hearing, if the deadline passes without submission of the application and no good
cause for failure to file has been shown. (AILA Doc. No. 20083142)
● Gomez-Medina v. Holder (1st Circuit, 7/27/2012). The court found that the IJ did
not err in denying the petitioner’s last-minute request to continue her hearing and
dismissing her asylum application as abandoned, noting that she failed to submit
court-ordered documents. (AILA Doc. No. 12073046).

Adjustment and Maintenance of Asylum Status

● Cela v. Garland (4th Circuit, 7/28/2023). Denying the petition for review, the court
concluded INA §209(b) unambiguously precludes a noncitizen whose asylum
status has been terminated from adjusting to lawful permanent resident (LPR)
status. (AILA Doc. No. 23081411).
● Ali v. Barr (5th Circuit, 2/24/2020) The court denied the petition for review,
holding the petitioner’s voluntary and successful adjustment to LPR status ended
his asylee status, and the first IJ’s asylum decision in 1992 lacked preclusive
effect on the second IJ’s asylum decision in 2014. (AILA Doc. No. 20030600).
● Matter of N-A-I-, 27 I&N Dec. 72 (BIA 2017). The BIA held asylees who adjust
their status under INA §209(b) have effectively terminated their asylee status and
become individuals lawfully admitted for permanent residence. (AILA Doc. No.
17080335).
● Mahmood v. Sessions (4th Circuit, 2/22/2017). The court denied the petition for
review, holding the BIA’s reliance on its precedential decision in Matter of C-J-H-
was reasonable. That is, noncitizens adjusting to LPR status under INA §209(b)
do not retain their asylum status. (AILA Doc. No. 17022305).
● Ali v. Lynch (5th Circuit, 2/22/2016). Finding that the BIA failed to address
relevant subsections of INA §201, DHS regulations, and previous BIA decisions,
the court remanded for the BIA to consider, in the first instance, whether a
petitioner's asylum status is terminated upon adjustment to LPR status. (AILA
Doc. No. 16022401).
● Siwe v. Holder (5th Circuit, 2/6/2014). The court held that INA §209(b) is not
ambiguous and that its plain wording does not require a noncitizen to maintain
 his asylum status to apply for adjustment of status under the statute, and vacated
the BIA’s decision ordering removal. (AILA Doc. No. 14021949).

Arguments Raised for First Time on Appeal

● Lopez Hernandez v. Garland (9th Circuit, 2/16/2023). The court held the BIA
permissibly declined to consider petitioner’s challenges to IJ’s alternative denial
of withholding of removal and protection under the Convention Against Torture
(CAT) because he failed to cross-appeal that determination. (AILA Doc. No.
23022200).
● Honcharov v. Barr (9th Circuit, 5/29/2019). The court held that the rationales
behind waiver and forfeiture apply as well in the context of EOIR removal
proceedings, and the Board may apply a procedural default rule to arguments
raised for the first time on appeal. Approving the BIA's practice of refusing to
address arguments raised for the first time on appeal, the court found the BIA did
not err when it declined to consider petitioner's proposed particular social groups
that were raised for the first time on appeal. (AILA Doc. No. 19061337).

Asylum Applications Without Merit

● Esteban-Garcia v. Garland (1st Circuit, 2/29/2024). The court found the BIA did
not err when it determined the petitioner, fearing she might be forced to become
a prostitute or sell drugs if she returned to Guatemala, had failed to meet her
burden of showing a nexus to a protected ground. (AILA Doc. No. 24040972).
● Odei v. Garland (1st Circuit, 6/15/2023). The court rejected petitioner’s argument
that being removed to his native Ghana would contravene INA §241(b)(3)(A)’s
prohibition against the removal of a noncitizen to a country where their “life or
freedom would be threatened” given that he lacked the freedom to return to his
family’s cocoa farm; property appropriated in a dispute with a local chieftain.
According to the court, this is nothing more than an interpersonal conflict
between the chieftain and the petitioner’s family and unconnected to a statutorily
protected ground for relief. Withholding of removal denied. (AILA Doc. No.
23062810).
● Matter of Andrade Jaso and Matter of Carbajal Ayala, 27 I&N Dec. 557 (BIA
2019). The BIA held that IJs have authority to dismiss removal proceedings if
they determine that a meritless asylum application was filed with USCIS for the
sole purpose of seeking cancellation for removal in immigration court. (AILA Doc.
No. 19060333).

Asylum Grant and International Child Abduction Determination

● Sanchez v. RGL (5th Circuit, 2/21/2014). The court vacated the district court
order and remanded, finding that the asylum grants to the three minor children
were critical to a determination of whether one or more of the Hague
Convention’s exception to return applies. (AILA Doc. No. 14022857).

Bond
● Miranda v. Garland (4th Circuit, 5/12/2022, amended 5/19/22). The court vacated
the district court’s preliminary injunction ordering the government to prove by
clear and convincing evidence that a noncitizen is either a flight risk or a danger
to the community to continue detention under INA §236(a). The court determined
that under INA §242(f)(1), the district court lacked jurisdiction to issue class-wide
injunctive relief enjoining or restraining the process used to conduct §236(a)
bond hearings. According to U.S. Supreme Court precedent, the current
detention procedures used for §236(a) bond hearings provide sufficient process
to satisfy constitutional requirements. (AILA Doc. No. 22051703).
● Johnson, et al. v. Guzman Chavez, et al. (6/29/2021). The U.S. Supreme Court
held that INA §241, not INA §236, governs the detention of noncitizens subject to
 reinstated orders of removal. Such individuals are thus not entitled to a bond
hearing while pursuing withholding of removal. (AILA Doc. No. 21062935).
● Padilla v. ICE (9th Circuit, 3/27/2020). The court upheld a ruling blocking a policy
that categorically denied bond hearings to asylum seekers, specifically
individuals whom immigration officers previously determined to have a “credible
fear” of persecution or torture if returned to the countries they fled. (AILA Doc.
No. 20033037).
● Matter of R-A-V-P-, 27 I&N Dec. 803 (BIA 2020). The BIA found the IJ properly
determined the respondent was a flight risk and denied his request for a custody
redetermination where, notwithstanding a pending asylum application, he had no
ties nor a probable path to lawful status. (AILA Doc. No. 20031808).
● Guzman Chavez, et al. v. Hott, et al. (4th Circuit, 10/10/2019). The court held that
noncitizens, subject to reinstated removal orders, have the right to individualized
bond hearings before IJs, resulting in possible release during the pendency of
their withholding-only proceedings. (AILA Doc. No. 19101102).
● Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019). The Attorney General found that an
individual, transferred from expedited removal to full removal proceedings after
establishing a credible fear, is ineligible for bond and must be detained, unless he
is granted parole. (AILA Doc. No. 19041699).
● Guerrero-Sanchez v. Osterlind (3rd Circuit, 9/26/2018). The court, following the
9th Circuit, found petitioner was detained pursuant to §241(a) because his
reinstated order of removal was administratively final despite his open
withholding-only request. The court invoked the canon of constitutional
avoidance by reading in an implicit bond hearing that applies to all persons
detained under §241(a). As done by the 9th Circuit in Diouf, the court adopted a
six-month (or minimally beyond) rule. (AILA Doc. No. 18101503).
● Flores v. Sessions (9th Circuit, 7/5/2017). The court held that two statutes
enacted since the government agreed to the Flores Settlement-the Homeland
Security Act and the TVPRA-did not terminate the bond hearing requirement of
Paragraph 24A of the agreement for unaccompanied minors. (AILA Doc. No.
17072467).
● Matter of Fatahi, 26 I&N Dec. 791 (BIA 2016). The BIA held that, in determining
whether an alien presents a danger to the community at large and thus should
not be released on bond pending a removal proceeding, an Immigration Judge
should consider both direct and circumstantial evidence of dangerousness,
including whether the facts and circumstances present national security
considerations. (AILA Doc. No. 16080367).
● Guerra v. Shanahan et al. (2nd Circuit, 7/29/2016). The court affirmed the district
court, holding individuals with reinstated orders of removal in withholding-only
proceedings are indeed eligible for bond. (AILA Doc. No. 16080166).

Citizen or National of More Than One Country

● Zepeda-Lopez, et al. v. Garland (2nd Circuit, 6/28/2022). The court held that
under the concept of “refugee” (INA §101(a)(42)(A)), a dual national asylum
applicant need only show persecution in either country of nationality. The court
vacated the BIA’s decision, finding the petitioners had demonstrated persecution
in Honduras but not in Nicaragua and thus did not fail to qualify as refugees.
Case remanded to the BIA for further proceedings. (AILA Doc. No. 22070706).
● Matter of B-R-, 26 I&N Dec. 119 (BIA 2013). The Board held that an individual
who is a citizen or national of more than one country without fear of persecution
in one of those countries does not qualify as a “refugee” under INA §101(a)(42)
and is thus ineligible for asylum. (AILA Doc. No. 13050742).

Competency
 ● Benedicto v. Garland (9th Circuit, 9/9/2021). The court held petitioner, a lawful
permanent resident who had been found mentally incompetent, had received
adequate safeguards in his removal proceedings; failed to exhaust his claim
regarding the IJ’s “particularly serious crime” determination; and provided
insufficient evidence to warrant a grant of deferral of removal under CAT. (AILA
Doc. No. 21092005).
● Pierre-Paul v. Barr (5th Circuit, 7/18/2019). The court held the IJ did not violate
petitioner’s due process rights by failing to adhere to the procedural safeguards
put in place after his competency hearing – as a result, no variance rising to the
level of a due process violation. (AILA Doc. No. 19072304).
● Singh v. Sessions (5th Circuit, 1/23/2018). Deferring to the determinations made
by the IJ and BIA that the petitioner's testimony was not credible, the court
denied the petition for review, holding Matter of J-R-R-A- did not apply,
notwithstanding his PTSD diagnosis. "(T)he IJ determined that, despite his PTSD
diagnosis, Singh was competent to participate in the removal proceedings
because he was able to communicate with his attorney and rationally relate his
testimony to the court…[presenting] "testimony in a coherent, linear manner.""
(AILA Doc. No. 18013134).
● Campos Mejia v. Sessions (9th Circuit, 8/29/2017). The court granted the petition
for review of the BIA’s denial of the petitioner’s asylum claims, holding the IJ
erred by failing to determine whether procedural safeguards were required after
the petitioner displayed signs of mental incompetency. (AILA Doc. No.
17083033).
● Matter of M-J-K-, 26 I&N Dec. 773 (BIA 2016). In cases involving issues of
mental competency, an Immigration Judge has the discretion to select and
implement appropriate safeguards, which the Board of Immigration Appeals
reviews de novo. (“Accordingly, since the respondent is now represented by an
attorney, we will remand the record for the Immigration Judge to reassess the
safeguard afforded by counsel and to consider additional safeguards as well.”).
(AILA Doc. No. 16062961).
● Diop v. Lynch (4th Circuit, 12/2/2015). The court affirmed the BIA, rejecting the
petitioner's due process argument that the IJ should have continued or
administratively closed his removal proceedings to allow him to receive a mental
health evaluation. (AILA Doc. No. 15120331).
● Matter of J-S-S-, 26 I&N Dec. 679 (BIA 2015). The BIA held that neither party
carries a formal burden of proof to establish a respondent's mental competency,
but where there are indicia of incompetency, the IJ should determine if the
respondent is competent using a preponderance of the evidence standard. (AILA
Doc. No. 15110233).
● Matter of J-R-R-A-, 26 I&N Dec. 609 (BIA 2015). The BIA held that if an asylum
applicant has competency issues affecting the reliability of his testimony, the IJ
should, as a safeguard, generally accept his fear of harm as subjectively
genuine, based on his perception of events. (AILA Doc. No. 15061106).
● Matter of M-A-M-, 25 I&N Dec 474 (BIA 2011). The BIA established a framework
for assessing the competency of respondents in proceedings and remanded after
finding good cause to believe respondent was not competent to proceed. (AILA
Doc. No. 11050960).

Confidentiality of DHS Overseas Investigation

● Jabr v. Holder (7th Circuit, 4/2/2013). The court remanded the case, holding that
the IJ and BIA overlooked material evidence demonstrating that the petitioner
suffered past persecution in Palestine on account of his political opinion. (AILA
Doc. No. 13040953).
● La v. Holder (8th Circuit, 12/13/2012). The court rejected the petitioner’s
arguments that an overseas DHS investigation violated her confidentiality rights
 and that the IJ considered untrustworthy evidence, and upheld the BIA’s
conclusion she had not suffered past persecution. (AILA Doc. No. 12121450).
● Dayo v. Holder (5th Circuit, 7/12/2012). The court found that the applicant had a
separate claim of relief based on a breach of confidentiality by the government in
revealing to the Nigerian consulate that he had applied for asylum, but upheld the
BIA’s denial of his claim. (AILA Doc. No. 12071645).
● Lyashchynska v. U.S. Att’y Gen. (11th Circuit, 4/4/2012). The court affirmed the
adverse credibility finding, and found the investigator’s disclosure of the
petitioner’s name to a Ukrainian hospital administrator did not breach her right to
confidentiality in the asylum process. (AILA Doc. No. 12040546).
● Anim v. Mukasey (4th Circuit, 8/11/2008). The court found that the petitioner's
right to confidentiality under 8 CFR §208.6 was violated and that she should as a
result be given a chance to present new claims based on this breach. The court
held that the IJ's consideration of a DOS letter violated her due process rights.
(AILA Doc. No. 08091666).
● Corovic v. Mukasey (2nd Cir. 3/7/2008). The court held that the BIA erred in
concluding that the government had not violated the confidentiality regulation
when it disclosed Petitioner’s name to the Macedonian authorities. (AILA Doc.
No. 08041062).

Continuance
● Hernandez Lara v. Barr (1st Circuit, 6/15/2020). The court concluded the IJ’s
denial of the Salvadoran petitioner’s final request for a continuance—allowing her
a new attorney to be present at her rescheduled merits hearing on her
application for withholding of removal and Convention Against Torture (CAT)
relief—failed to “meaningfully effectuate” her statutory right to counsel, with only
14 business days to find one after she understood that she needed a new one,
had been detained throughout her removal proceedings, and did not speak, read,
or write English. The court further found that the assistance of an attorney would
likely have affected the outcome of the removal proceedings. The court granted
the petition for review, vacated the BIA’s decision, and remanded. (AILA Doc. No.
20061905).
● Guerra Rocha, et al. v. Barr (7th Circuit, 3/4/2020). The court held the BIA failed
to adequately consider and apply its own precedents (i.e., Matter of Sanchez
Sosa and Matter of L-A-B-R-) when it determined the petitioner was not entitled
to a remand for the purpose of deciding whether her pending U visa application
entitled her to a continuance. (AILA Doc. No. 20031801).

Corroboration
● Mohndamenang v. Garland (5th Circuit, 2/6/2023). The court rejected
Cameroonian petitioner’s argument that the BIA ignored substantial evidence in
the record, including country-conditions evidence, allegedly corroborating his
claims for asylum and related relief. (AILA Doc. No. 23021706).
● Adongafac v. Garland (8th Circuit, 11/21/2022). Applying a highly deferential
standard of review, the court found the BIA did not err when it determined
petitioner’s credible, but weak, testimony supporting her asylum claim was
insufficiently corroborated. The petition for review was consequently denied.
(AILA Doc. No. 22121204).
● Pinel-Gomez v. Garland (2nd Circuit, 11/2/2022). The court held the BIA properly
applied de novo review to the IJ’s request for corroborative evidence. It also
properly reviewed for clear error the IJ’s finding that petitioner failed to produce
the requested evidence he reasonably could have obtained. (AILA Doc. No.
22112104).
● Thile v. Garland (1st Circuit, 3/19/2021). The court held the BIA and IJ properly
found the petitioner failed to prove his Chinese citizenship given an absence of
 corroborating evidence, thus finding he could not base his asylum application on
a fear of a return to China. (AILA Doc. No. 21032435).
● Arita-Deras v. Wilkinson (4th Circuit, 3/4/2021). In this case, where the petitioner
asserted she and her husband had been subjected to death threats by a gang in
Honduras, the court held the BIA improperly discounted her corroborating
evidence consisting of affidavits, burial permits, and other documentation. (AILA
Doc. No. 21030837).
● Matter of J-G-T-, 28 I&N Dec. 97 (BIA 2020). The BIA ruled that in assessing
whether to admit expert witness testimony, an IJ should consider whether it is
sufficiently relevant and reliable, and, if admitted, how much weight it should be
accorded it as well as how probative and persuasive it is with respect to key
issues in dispute. (AILA Doc. No. 20092532).
● Guzman-Vazquez v. Barr (6th Circuit, 5/18/2020). The court granted petition for
review of the BIA’s denial of withholding of removal, finding the IJ and BIA both
failed to give the petitioner an opportunity to explain why he could not reasonably
obtain certain corroborative evidence. (AILA Doc. No. 20052639).
● Arrazabal v. Barr (7th Circuit, 7/3/2019). The court held the IJ and BIA must take
fair notice of the corroboration found in the evidence presented by the petitioner
(former MS-13 gang member) and take that corroboration into account when
evaluating his withholding of removal and Convention Against Torture (CAT)
claims. (AILA Doc. No. 19070908).
● Avelar-Gonzalez v. Whitaker (1st Circuit, 11/15/2018). The court held that
substantial evidence supported the IJ/BIA denial given petitioner's failure to
adequately corroborate vague and inconsistent testimony of past persecution
with reasonably-available evidence. (AILA Doc. No. 18120435).
● Rivas-Pena v. Sessions (7th Circuit, 8/21/2018). The court found the BIA failed to
offer any reasonable basis for disagreeing with expert opinion corroborating the
petitioner's fear of torture at the hands of Los Zetas for losing hundreds of
thousands of dollars of the group's contraband, if he was removed to Mexico.
(AILA Doc. No. 18091274).
● Cruz-Martinez v. Sessions (7th Circuit, 3/14/2018). The court denied the petition
for review, finding the petitioner failed to meet his burden in establishing that he
would be subject to future persecution or torture, and thus was not entitled to
withholding of removal or relief under the CAT. (AILA Doc. No. 18031931).
● Sun v. Sessions (2nd Circuit, 2/23/2018). The court held the BIA’s interpretation
of the REAL ID Act, not requiring an IJ to give a petitioner an opportunity to
submit additional evidence when the IJ concludes corroborating evidence is
required, was entitled to Chevron deference. (AILA Doc. No. 18030635).
● Silais v. Sessions (7th Circuit, 4/28/2017). The court upheld the IJ’s findings that
the petitioner’s testimony was vague, inconsistent, and without sufficient
corroboration, and consequently could not show the Haitian government was
unwilling or unable to protect him if he were to return. (AILA Doc. No. 17050300).
● Ayvazov v. Att’y Gen. (3rd Circuit, 10/27/2016). In a non-precedent decision, the
court found the entire administrative proceeding had gone “awry” when the BIA
demanded the asylum applicant produce an expert witness to establish his Roma
ethnicity or face a denial of the claim. Courtesy of Raymond Lahoud. (AILA Doc.
No. 16110409).
● Bhattarai v. Lynch (9th Circuit, 8/30/2016). The court granted the petition for
review of the BIA’s asylum denial, holding the IJ erred by failing to give the
petitioner notice and an opportunity to explain any perceived inconsistencies or
provide additional corroborative evidence. (AILA Doc. No. 16083161).
● Chen v. Lynch (7th Circuit, 1/8/2016). The court upheld the IJ and the BIA,
holding that the petitioner failed to provide, or adequately explain, the absence of
reasonably available evidence to corroborate his testimony concerning the
 appropriation of his farmland by the Chinese government. (AILA Doc. No.
16011201).
● Darinchuluun v. Lynch (7th Circuit, 10/8/2015). The court upheld the IJ's finding
that the petitioner both failed to offer evidence corroborating the key elements of
his claim of persecution and meet his burden of establishing that supplemental
evidence could not be obtained before his merits hearing. (AILA Doc. No.
15100900).
● Gaye v. Lynch (6th Circuit, 6/9/2015). The court held that INA §208(b)(1)(B)(ii)
does not require immigration courts to give asylum applicants advance notice
regarding the sort of evidence they must produce to prevail in their efforts to
remain in the United States. (AILA Doc. No. 15061100).
● Sibanda v. Holder (7th Circuit, 2/13/2015). The court found the BIA failed to
adequately consider whether additional corroborating evidence confirming
attacks against Zimbabwean petitioner was not reasonably available. (AILA Doc.
No. 15041711).
● Matter of L-A-C-, 26 I&N Dec. 516 (BIA 2015). The BIA found that an IJ is not
required to identify the specific evidence necessary to meet the burden of proof
or to provide an automatic continuance for applicant to obtain that evidence prior
to making a decision on that application. (AILA Doc. No. 15031908).
● Vasquez v. Holder (5th Circuit, 1/30/2015). The court denied the petition for
review due to insufficient evidence to compel a different conclusion from that
reached by BIA that petitioner and his family would be tortured if they returned to
Mexico due to a property dispute. (AILA Doc. No. 15031161).
● Owino v. Holder (9th Circuit, 11/4/2014). The court held the IJ abused her
discretion in denying a continuance to submit into evidence additional arrest
documents to prove past persecution since the reasoning was based on legal
error and was inconsistent with factors set forth in Peng v. Holder. (AILA Doc. No.
14111343).
● Vanegas-Ramirez v. Holder (2nd Circuit, 9/25/2014). The court held that because
the petitioner voluntarily conceded his removability in a motion to change venue,
the BIA did not err in denying the suppression motion nor in denying the asylum
application. (AILA Doc. No. 14100654).
● Soeung v. Holder (1st Circuit, 4/25/2012). Applying the law as it existed prior to
the REAL ID Act, the court found that the BIA should have made an explicit
finding on the adequacy of the asylum applicant’s explanation for failing to
corroborate certain aspects of his claim. (AILA Doc. No. 12042754).
● Guta-Tolossa v. Holder (1st Circuit, 3/16/2012). The court found that the BIA
failed to address two central issues in the Ethiopian asylum case and remanded
to the BIA to clarify questions relating to credibility and corroborating evidence.
(AILA Doc. No. 12031934).
● Salman v. Holder (8th Circuit, 8/6/2012). The court found that Petitioner failed to
establish that the government condoned the harassment directed toward
Petitioner by private parties, or that it was helpless to protect against it. (AILA
Doc. No. 12080757).
● Omondi v. Holder (8th Circuit, 3/15/2012). The court found that the IJ did not err
in requiring further corroborative evidence to support the asylum application, but
remanded to determine whether transcript deficiencies masked testimony that
corroborative testimony was unavailable. (AILA Doc. No. 12031668).
● Yang v. Holder (5th Circuit, 12/12/2011). The court held that the BIA reasonably
interpreted its own regulations in Matter of S-M-J- when ruling asylum applicants
can be required to provide reasonably obtainable corroborating evidence even
when their testimony is credible. (AILA Doc. No. 11121238).
● Chen v. Holder (2nd Circuit, 9/23/2011). The court held that petitioner’s
undocumented husband was “available” to testify despite his fear of
apprehension, noting that he would have been eligible for derivative asylum
 status and had every incentive to testify on his wife’s behalf. (AILA Doc. No.
11092663).
● Matter of D-R-, 25 I&N Dec. 445 (BIA 2011). The BIA held that an IJ may make
reasonable inferences from direct and circumstantial evidence, and is not
required to accept respondent's account where other plausible views of the
evidence are supported by the record. (AILA Doc. No. 11041466).
● Marynenka v. Holder (4th Circuit, 1/25/2010). The court granted petition for
review, vacated the BIA’s decision, and remanded asylum case, finding the IJ
committed substantial legal error in rejecting certain portions of petitioner’s
corroborating evidence. (AILA Doc. No. 10021769).
● Liu v. Holder (2nd Circuit, 8/5/2009). Finding Petitioner failed to provide evidence
corroborating his testimony, the court held he failed to meet his burden for a
grant of withholding of removal. (AILA Doc. No. 09092970).
● Owino v. Holder (9th Circuit, 8/4/2009). The court held the REAL ID Act's
corroboration standard applies to CAT applications filed after the effective date.
The court remanded to the BIA for consideration of the REAL ID ACT
corroboration standard. (AILA Doc. No. 09092864).
● Dedji v. Mukasey (2nd Circuit, 5/8/2008). The court held that where an asylum
applicant has provided good cause for failure to timely file documents and a
likelihood of substantial prejudice, the IJ may depart from the deadline imposed
by relevant local rules. (AILA Doc. No. 08062862).

Credible Fear
● Hermosillo v. Garland (9th Circuit, 9/14/2023). Granting the petition for review,
the court held that petitioner’s own credible testimony at the screening stage
sufficiently established a reasonable fear of persecution or torture to call for a
hearing before an IJ on the merits of his claims for relief. (AILA Doc. No.
23092608).
● Alonso-Juarez v. Garland (9th Circuit, 9/8/2023). The court first held that the
30-day deadline for filing a petition for review set forth in INA §242(b)(1) is a
non-jurisdictional rule under Santos-Zacaria v. Garland, and that Ortiz-Alfaro v.
Holder remains valid precedent such that the 30-day deadline begins upon the
conclusion of reasonable fear proceedings. The court thus found that the petition
for review, which was filed within 30 days of the conclusion of the petitioner’s
reasonable fear proceedings—but not within 30 days of the reinstatement of his
removal order—was timely. However, the court, following Alvarado-Herrera v.
Garland , denied the petition on the merits, holding the reasonable fear screening
procedures established by 8 CFR §§208.31 and 1208.31 are consistent with the
statutory provisions governing withholding of removal. (AILA Doc. No.
23092603).
● M.M.V., et al. v. Garland, et al. (D.C. Circuit, 6/18/2021). The court affirmed the
district court’s conclusion that the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRAIRA) barred its review of 10 of 11 alleged policies,
because the policy was unwritten or challenges to it were untimely. (AILA Doc.
No. 21062833).
● Grace, et al. v. Barr, et al. (D.C. Circuit, 7/17/2020). The court affirmed in part the
district court’s injunction against enforcement of the government’s new credible
fear policies, finding the “condoned-or-completely-helpless” standard and
USCIS’s choice-of-law policy were arbitrary and capricious. (AILA Doc. No.
20072134).

Danger to National Security Bar

● Mirza v. Garland (5th Circuit, 5/12/2021). The court held the Attorney General
had correctly interpreted INA §208(b)(2)(A)(iv) (danger to the security of the
United States) as a matter of law when it lawfully terminated petitioner’s asylum
 by detaining him and ordering his removal after he threatened to commit a
religiously motivated act of terrorism. (AILA Doc. No. 21060432).
● Yusupov v. Att’y Gen. of U.S. (3rd Cir. 3/27/2008). The court found that the AG
ignored clear Congressional intent by inquiring whether an applicant “may pose”
a danger to the security of the U.S. instead of asking whether he “is” a danger in
considering the national security bar. (AILA Doc. No. 08050761).

Deferred Action for Childhood Arrivals (DACA)

● Gasparian v. Holder (1st Circuit, 12/3/2012). The court upheld the denial of the
petitioners’ motion to reopen their asylum case based on changed
circumstances, but issued a 90-day stay of mandate to allow the son to apply for
deferred action for childhood arrivals. (AILA Doc. No. 12121025).

Discretion
● Usubakunov v. Garland (9th Circuit, 11/1/2021). Applying a fact-based inquiry,
the court concluded that, under the unique circumstances presented, the IJ’s
denial of a continuance of the petitioner’s merits hearing was an abuse of
discretion because it was tantamount to a denial of counsel. The court noted the
petitioner, an asylum applicant, had been detained and separated from his family,
spoke no English, diligently pursued representation, and found an attorney who
had agreed to represent him. When that attorney was unavailable on the date of
his merits hearing, the petitioner requested his first continuance. The court found
that the petitioner did not get a fair chance to proceed with counsel, and thus
granted the petition for review. (AILA Doc. No. 21110900).

Due Process
● Arizmendi-Medina v. Garland (9th Circuit, 6/7/2023). The court held the IJ’s
rejection of the attorney’s request for an opportunity to file petitioner’s application
for relief on the date of the petitioner’s individual merits hearing did indeed
deprive the petitioner of a full and fair opportunity to be heard. (AILA Doc. No.
23062901).
● Holmes v. Garland (8th Circuit, 6/17/2022). The court dismissed petitioner’s claim
that the IJ violated her due process rights. The court observed that the IJ advised
her of her right to counsel and there was no absence of fundamental fairness.
The court opined that the petitioner’s admission of the charges against her and
concession of removability were admissible at a later hearing before a second
immigration judge assigned to her case. Nor did the agency commit procedural
error when it denied the petitioner’s motion to remand. It was in fact a motion to
reopen, failing to comply with the substantive requirements associated with such.
(AILA Doc. No. 22062802).
● Cardona-Franco v. Garland (5th Circuit, 5/24/2022). The court held the record
failed to show “obvious bias” nor had the petitioner offered record evidence
showing the IJ’s “hostility due to extrajudicial sources” or “a deep-seated
favoritism or antagonism that would make fair judgment impossible.” (AILA Doc.
No. 22060631).
● Priva v. Att’y Gen. (11th Circuit, 5/12/2022). Denying the petition for review, the
court held that, even if the petitioner had a right to counsel during his reasonable
fear proceedings before the IJ under INA §238, he failed to show any purported
due process violations causing him substantial prejudice. (AILA Doc. No.
22051804).
● Nolasco-Amaya v. Garland (9th Circuit, 9/28/2021). The court held that, given
petitioner’s status as a pro se litigant, her Notice of Appeal was sufficiently
specific to inform the BIA of the issues challenged on appeal. With that being
said, the BIA violated her right to due process by summarily dismissing her
appeal. (AILA Doc. No. 21100500).
● Lopez v. Garland (6th Circuit, 3/12/2021). The court rejected the Guatemalan
petitioner’s argument that the Notice to Appear (NTA), delivered in English,
violated her due process rights by its failure to warn her, in her native language,
of the consequences of not appearing for her proceeding. (AILA Doc. No.
21031733).
● Hussain v. Rosen (9th Circuit, 1/112021). The court held the IJ provided the pro
se petitioner a full opportunity to present testimony. It further found the BIA did
not err when concluding the petitioner’s description of generalized violence failed
to meet his burden of showing targeted persecution. (AILA Doc. No. 21012046).
● Grigoryan v. Barr (9th Circuit, 6/2/2020). Granting the petition for review, the court
held the government violated the petitioners’ due process rights by failing to
provide them a full and fair opportunity to rebut the government’s fraud
allegations before terminating their asylum status. (AILA Doc. No. 20060839).
● Arteaga-Ramirez, et al. v. Barr (5th Circuit, 4/8/2020). The court held that had a
due process violation even occurred, the petitioners still failed to show the
outcome would have been any different with further development of the record
relating to their Convention Against Torture (CAT) claim. (AILA Doc. No.
20042237).
● Atemnkeng v. Barr (4th Circuit, 1/24/2020). The court vacated the BIA’s summary
affirmance of the IJ’s rulings and remanded for reconsideration of the petitioner’s
asylum claim, finding her due process rights were violated when the IJ deprived
her of an opportunity to testify. (AILA Doc. No. 20020433).
● Diaz-Rivas v. Att’y Gen. (11th Circuit, 4/18/2019). In an unpublished decision, the
court rejected the petitioner’s claim that the Atlanta Immigration Court denied her
due process and equal protection of the laws. The dissent noted that the
petitioner’s statistics regarding the Atlanta Immigration Court (i.e., from 2014
through 2016, asylum applicants were approximately 23 times less likely to
succeed there than asylum applicants elsewhere) merited further inquiry by the
BIA. (AILA Doc. No. 19042436).
● J.E.F.M. v. Whitaker (9th Circuit, 11/13/2018). The court denied, pursuant to
§1252(b)(9), the habeas petitions of a class of children numbering in the
thousands that was seeking asylum, SIJS, or other relief from removal, claiming
due process and statutory rights to appointed counsel during removal hearings.
(AILA Doc. No. 18120411).
● Saravia v. Sessions (9th Circuit, 10/1/2018). The court held district court did not
abuse its discretion in holding unaccompanied minors originally released to
custodian who've been re-detained for alleged gang membership are entitled to
prompt hearing before neutral decisionmaker to contest allegations. (AILA Doc.
No. 18102230).
● Ramirez v. Sessions (8th Circuit, 8/29/2018). The court found no due process
violation in the hearing or in IJ's erroneous use of boilerplate language from a
different case because the BIA had considered the errors, found them harmless,
and made its own determinations with independent judgement and substantial
evidence. (AILA Doc. No. 18101600).
● Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018). Attorney General Jefferson
Sessions referred the BIA decision in Matter of E-F-H-L- (holding an applicant for
asylum or withholding of removal is entitled to a hearing on the merits without
first having to establish prima facie eligibility for the requested relief) to himself
for review and vacated that decision, directing the matter to be recalendared and
restored to the active docket. (AILA Doc. No. 18030536).
● C.J.L.G. v. Sessions (9th Circuit, 1/29/2018. The court denied the petition for
review, holding there is no categorical right to court-appointed counsel, at
government expense, for minors in immigration proceedings under either the Due
Process Clause or the INA. (AILA Doc. No. 18013036).
● Bringas-Rodriguez v. Sessions (9th Circuit, 1/12/2018). The Ninth Circuit issued
an order granting a petition for a writ of mandamus filed by an individual removed
to Mexico after he failed to receive proper notice of his hearing - ordering the
government to return him to the United States no later than 1/16/18. (AILA Doc.
No. 18011844).
● Barragan-Ojeda v. Sessions (7th Circuit, 4/5/2017). The court held the petitioner
did not demonstrate he was denied due process of law by the IJ’s consideration
of his asylum claim, and the BIA properly found his additional submissions on
appeal failed to meet the requirements for a motion to remand. The court further
found the petitioner created no evidentiary record of his reasons for failing to
disclose his sexual orientation claim before the IJ, and thus the BIA had no basis
to conclude the evidence he sought to introduce on appeal was previously
unavailable. (AILA Doc. No. 17041241).
● Beltrán v. Cardall (4th Circuit, 11/22/2016). The U.S. District Court for the Eastern
District of Virginia granted the petition for a writ of habeas corpus, holding that
the Office of Refugee Resettlement's family reunification procedures failed to
provide due process to the petitioner and her unaccompanied child. (AILA Doc.
No. 16112807).
● Baptiste v. Att'y Gen. (3rd Circuit, 11/8/2016). Applying the U.S. Supreme Court's
decision in Johnson v. United States, the court held the definition of a "crime of
violence" provided in 18 USC §16(b) is void for vagueness under the Due
Process Clause of the Fifth Amendment. (AILA Doc. No. 16111500).
● Alva-Arellano v. Lynch (8th Circuit, 2/2/2016). The court found that, under the
circumstances presented, the IJ did not commit a fundamental procedural error
when failing to inform the petitioner about asylum or other possible avenues of
relief, and, thus, no due process violation. (AILA Doc. No. 16020809).
● Matter of D-M-C-P-, 26 I&N Dec. 644 (BIA 2015). The BIA held that IJs must
notify asylum applicants of biometrics requirements, deadline, and
noncompliance consequences. It further held that IJs and the BIA lack jurisdiction
to consider if asylum-only proceedings were improvidently begun under a VWP
referral. (AILA Doc. No. 15080600).
● Nanic v. Lynch (8th Circuit, 7/20/2015). The court upheld the BIA's denial of
asylum, finding the BIA’s rejection of the Bosnian petitioners' due process claims
was supported by substantial evidence, and the petitioners had therefore been
accorded due process. (AILA Doc. No. 15072100).
● Matter of E-F-H-L, 26 I&N Dec. 319 (BIA 2014). The Board held that an applicant
for asylum or withholding of removal is entitled to a hearing on the merits without
first having to establish prima facie eligibility for the requested relief. (AILA Doc.
No. 14061249).
● Yang v. Holder (8th Circuit, 4/4/2014). The court denied the petition to review the
asylum denial, finding that the IJ did not violate the petitioner's right to due
process because the Mandarin Chinese interpreter provided at the hearing was
competent. (AILA Doc. No. 14040744).
● Angov v. Holder (9th Circuit, 12/4/2013). The court held that due process is not
violated when the IJ/BIA denies asylum based solely on hearsay DOS
investigation (i.e., unsworn, unauthenticated letters prepared for litigation) without
affording the petitioner the right to confront the charges. (AILA Doc. No.
13120942).
● Shunaula v. Holder (2nd Circuit,10/16/2013). The court dismissed the petitions
for review, finding that INA §242(a)(2)(A) deprived the court of jurisdiction to hear
the petitioner’s due process challenge to the 1997 order of expedited removal
underlying the BIA’s finding of ineligibility for adjustment. (AILA Doc. No.
13102256).
● Bondarenko v. Holder (9th Circuit, 10/25/2013). The court granted the petition
and remanded, holding that the IJ violated due process by allowing the
 government to introduce a forensic report concerning a medical document
without prior notice and by refusing a continuance to investigate the report. (AILA
Doc. No. 13102948).
● Urooj v. Holder (9th Circuit, 11/6/2013). The court overturned the termination of
Petitioner’s asylum status, finding that DHS failed to give proper notice of its
witnesses or exhibits, and since Petitioner refused to testify, the exhibits could
not be used as impeachment evidence. (AILA Doc. No. 13110746).
● Gutierrez v. Holder (9th Circuit, 9/13/2013). The court held that DHS may
terminate a prior grant of withholding in conjunction with removal proceedings, so
long as it meets its burden of demonstrating the grounds for doing so, and that
two separate proceedings are not required under 8 CFR §1208.24(f). (AILA Doc.
No. 13092549).
● Oshodi v. Holder (9th Circuit, 8/27/2013). The court granted the petition for
review, finding that the IJ prejudiced the petitioner by denying his constitutional
right to testify in support of his asylum application and making an adverse
credibility finding based principally on the cross-examination. (AILA Doc. No.
13082746).
● Perez-Guerrero v. U.S. Att’y Gen. (11th Circuit, 6/12/2013). The court denied the
petitioner’s CAT claim, holding that his removal to Mexico would not violate his
due process rights, and directed the court to seal only certain parts of the record.
(AILA Doc. No. 13062007).
● Unpublished BIA Case (BIA, 2/11/13). In an unpublished decision, the BIA held
that the IJ erred by requiring the asylum applicant to establish a prima facie
asylum case in their written asylum application as a prerequisite to holding a
hearing and remanded the case to the IJ. Courtesy of Patricia G. Mattos. (AILA
Doc. No. 13050152).
● Matter of C-B-, 25 I&N Dec. 888 (BIA 2012). The BIA held that the IJ should have
given the detained respondent time to obtain an attorney, advised him of possible
eligibility for asylum or withholding, and considered his eligibility for voluntary
departure. (AILA Doc. No. 12081741).
● Rafiyev v. Mukasey (8th Circuit, 8/5/2008). The court held that there was no
constitutional right under the Fifth Amendment to effective assistance of counsel
in removal proceedings and that the BIA did not abuse its discretion when it
refused to reopen the petitioner's asylum case. (AILA Doc. No. 08100668).
● Raphael v. Mukasey (7th Circuit, 7/2/2008). The court found that the use of video
conferencing for immigration hearings facially comported with due process. The
court held, however, that the petitioner was entitled to a new hearing because
she was unable to review key evidence. (AILA Doc. No. 08082264).
● Ali v. Mukasey (2nd Circuit, 6/18/2008). The court found that the IJ's comments
were disrespectful to Petitioner and reflected an impermissible reliance on
preconceived notions about homosexuality. (AILA Doc. No. 08080162).
● Yosd v. Mukasey (1st Cir. 1/29/2008). The court held that the BIA did not err in
remanding the Petitioner’s case to the same IJ where there was no allegation of
misconduct, and found nothing improper about the IJ’s conduct at the second
hearing. Petitioner was afforded full due process on remand. We find that the IJ's
adverse credibility finding following the second hearing was supported by a
"specific, cogent, and supportable explanation." (AILA Doc. No. 08022766).

Derivative Asylum
● Matter of A-Y-M-, 25 I&N Dec. 791 (BIA 2012). The BIA held that respondent,
who is unmarried and turned 21 while her mother's asylum application was
pending, continues to be classified as a "child" for purposes of qualifying for
derivative asylum. (AILA Doc. No. 12050865).

EAJA Fees
 ● Castaneda v. Holder (1st Circuit, 7/17/2013). In this 72-page decision, the court
determined which of the five federal court proceedings and numerous
administrative proceedings the petitioner was entitled to EAJA fees for and
considered arguments for fee award reductions and enhancements. (AILA Doc.
No. 13082345).
● Gomez-Beleno v. Holder (2nd Circuit, 7/7/2011). The court found that the BIA
committed significant errors of law that prejudiced Petitioners’ case such that the
position of the government was not substantially justified. The court awarded
$9,690 in fees and $751.04 in costs. (AILA Doc. No. 11071163).
● Gatimi v. Holder (7th Circuit, 5/17/2010). The court denied motion for attorney’s
fees, finding the “position of the United States” as used in the Equal Access to
Justice Act does include the BIA’s decision and the government’s position was
substantially justified as a whole. (AILA Doc. No. 10060169).

Experts
● Matter of M-A-M-Z-, 28 I&N Dec. 173 (BIA 2020). The BIA ruled that expert
testimony is evidence, but only an immigration judge makes factual findings.
Furthermore, when an immigration judge’s factual finding is inconsistent with an
expert’s opinion, (s)he should explain the reasons behind those factual findings.
(AILA Doc. No. 20121736).

Failure to Consider All Evidence or All Claims

● Pineda-Maldonado v. Garland (1st Circuit, 1/24/2024). The court vacated the
BIA’s denial of asylum, withholding of removal, and Convention Against Torture
(CAT) relief and remanded the case for further proceedings in a case involving
the murder of Salvadoran petitioner’s father by cattle thieves as well as threats to
petitioner and a beating by the police there. According to the court, neither the IJ
nor BIA addressed the most relevant evidence in the record. (AILA Doc. No.
24012901).
● Aguilar-Escoto v. Garland (1st Circuit, 2/7/2023). The court concluded that, in
rejecting petitioner’s withholding of removal claim, the BIA, on remand, failed
again to properly consider significant documentary evidence. The Board’s
removal order was vacated and remanded for further proceedings. (AILA Doc.
No. 23021502).
● Scarlett v. Barr (2nd Circuit, 4/28/2020). The court held it could not conclude, on
the existing record, whether the BIA had considered all relevant evidence and
applied the correct legal standard when it rejected the Jamaican petitioner’s
withholding of removal and Convention Against Torture (CAT) claims. (AILA Doc.
No. 20050438).
● Hernandez-Chacon v. Barr (2nd Circuit, 1/23/2020). The court held the BIA erred
in failing to adequately consider petitioner's claim that she would be persecuted
on account of her political opinion, i.e., “resistance to the norm of female
subordination to male dominance that pervades El Salvador”. (AILA Doc. No.
20020305).
● Dahal v. Barr (1st Circuit, 7/18/2019). The court granted in part the petition for
review, finding substantial evidence did not support the BIA’s decision to deny the
Nepali petitioner’s asylum application. In short, the government failed to rebut the
presumption of a well-founded fear of persecution. (AILA Doc. No. 19072302).
● Orellana v. Barr (3rd Circuit, 5/23/2019). The court held the BIA had disregarded
and distorted significant portions of the record when it found that the petitioner
failed to establish the Salvadoran government was unwilling or unable to protect
her from persecution. (AILA Doc. No. 19052832).
● Cabrera Vasquez v. Barr (4th Circuit, 3/20/2019). The court granted the petition
for review, holding the BIA failed to address petitioner's testimony that
 Salvadoran officials had turned a "blind eye" to death threats made by members
of the 18th Street gang to her and her son. (AILA Doc. No. 19032903).
● F. v. Sessions (6th Circuit, 7/27/2018). The court held the BIA's asylum denial
went against its own precedent, constituting an abuse of discretion by
unreasonably weighing one negative factor - visa misrepresentation - against the
IJ's finding of many positive factors. (AILA Doc. No. 18091730).
● A.B. v. Sessions (10th Circuit, 7/6/2018). In a non-precedent decision, the court
held the BIA abused its discretion in its review of the petitioner's motion to reopen
by disregarding evidence of increased persecution against religious minorities in
Bangladesh while dismissing the increased violence against religious minorities
as a symptom of general violence and civil unrest. (AILA Doc. No. 18091161).
● Perez v. Sessions (7th Circuit, 5/2/2018). The court held that in dismissing the
petitioner's appeal from the IJ's decision denying his application for deferral of
removal under the Convention Against Torture, the BIA erred by failing to make
an adequate inquiry into his near-escapes from the MS-13 gang. (AILA Doc. No.
18051742).
● Aguilar-Escoto v. Sessions (1st Circuit, 10/27/2017). The court vacated the BIA's
order rejecting petitioner's withholding of removal claim, finding that, irrespective
of the supportability of the adverse credibility finding, a remand was required in
order that the BIA consider potentially significant documentary evidence
regarding alleged domestic violence. (AILA Doc. No. 17103032).
● Ayala v. Sessions (9th Circuit, 5/1/2017). The court granted the petition for
review, holding the IJ erred in concluding that extortion could not constitute
persecution. Extortion, accompanied by the threat of violence on the basis of a
protected characteristic, can indeed constitute persecution. (AILA Doc. No.
17050465).
● Sealed Petitioner v. Sealed Respondent (5th Circuit, 7/15/2016). The court found
the BIA had failed to consider several factors essential to determining whether a
central reason for the Ethiopian asylum applicant’s maltreatment by the
government amounted to persecution on account of a protected ground. (AILA
Doc. No. 16072002).
● Oliva v. Lynch (4th Circuit, 11/25/2015). The court held the BIA failed to
adequately address the evidence in the record when making its determination
that the petitioner's proposed social groups were not cognizable under the INA. It
remanded for proper consideration of this issue. (AILA Doc. No. 15120100).
● Thapaliya v. Holder (1st Circuit, 4/24/2014). The court denied the petition to
review the asylum denial, finding that the record evidence did not amount to past
persecution, even though the Maoists also may have threatened the Nepali
petitioner with a gun during the isolated event. (AILA Doc. No. 14043042).
● Moreno v. Holder (1st Circuit, 4/18/2014). The court held that the Colombian
petitioner did not establish past persecution or a well-founded fear of future
persecution and thus found the petitioner's asserted social group of widows of
slain narco-traffickers moot. (AILA Doc. No. 14042257).
● Olivares, et al. v. Attorney General [Unpublished]. (11th Circuit, 11/22/2013). In
an unpublished decision, the court granted the petition, finding the adverse
credibility finding was not supported by specific, cogent reasons and remanded
for the BIA to consider the corroborating evidence. Courtesy of Roberto Matus.
(AILA Doc. No. 13120944).
● Urooj v. Holder (9th Circuit, 11/6/2013). The court overturned the termination of
Petitioner’s asylum status, finding that DHS failed to give proper notice of its
witnesses or exhibits, and since Petitioner refused to testify, the exhibits could
not be used as impeachment evidence. (AILA Doc. No. 13110746).
● Sharma v. Holder (5th Circuit, 9/9/2013). The court vacated and remanded,
finding the BIA incorrectly required the petitioner to provide direct proof of the
nexus between his persecution and his membership in Nepal’s Student Union,
 and did not consider all the evidence bearing upon the Maoists’ motives. (AILA
Doc. No. 13092346).
● Zhao v. Holder (9th Circuit, 9/6/2013). The court granted petition for review and
remanded after finding that the BIA improperly held that the motion to reopen
was numerically barred, erred in restricting the evidence the petitioner could
provide, and erred in failing to consider the evidence tendered. (AILA Doc. No.
13091242).
● Boika v. Holder (7th Circuit, 8/16/2013). The court remanded, finding the BIA
abused its discretion when it did not consider the factually distinct claims of future
persecution in Belaus and rejected these claims based solely on the past
adverse credibility finding. (Courtesy of Alexander Segal). (AILA Doc. No.
13082750).
● Huang v. Holder (2nd Circuit, 8/1/2013). In an unpublished Summary Order, the
court remanded, concluding inter alia that the IJ’s finding that petitioner did not
meet his burden of proof was not supported by substantial evidence. (Courtesy of
Donglai Yang). (AILA Doc. No. 13082747).
● Sumolang v. Holder (9th Circuit, 7/25/2013). The court remanded for the BIA to
reconsider the denial of withholding, giving full weight to past persecution
evidence of the death of the daughter of the petitioner, who was a Chinese
Christian living in Indonesia. (AILA Doc. No. 13080730).
● Vitug v. Holder (9th Circuit, 7/24/2013). The court granted in part a petition for
review, reversing the BIA’s denial of withholding, and holding that the BIA erred
by engaging in its own fact-finding, rather than clear error review, in evaluating
the harm suffered by a gay Filipino petitioner. (AILA Doc. No. 13080759).
● Javed v. Holder (1st Circuit, 5/24/2013). The court held that the BIA’s decision on
withholding of removal was contrary to the evidence, finding that the
mistreatment suffered by the Pakistani petitioner rose to the level of persecution
and was not merely part of a private dispute. (AILA Doc. No. 13060443).
● Tapia Madrigal v. Holder (9th Circuit, 5/15/2013). The court remanded the asylum
case for the BIA to reconsider whether members of a Mexican drug cartel were
responsible for the harm suffered by the petitioner, and to determine whether the
government is able to control the cartel. (AILA Doc. No. 13052048).
● Karki v. Holder (10th Circuit, 4/30/2013). The court remanded the CAT and
asylum claims back to the BIA, holding that the BIA failed to consider supporting
evidence, and that the record compelled the conclusion that the petitioner
suffered past persecution by Maoists in Nepal. (AILA Doc. No. 13050744).
● Unpublished BIA Case (BIA, 4/11/13). In an unpublished decision, the BIA held
that the asylum applicant had compelling reasons for being unwilling to return to
Liberia because of the severity of the persecution he suffered, despite a
fundamental change in country circumstances. Courtesy of Stephen Meili. (AILA
Doc. No. 13050153).
● Alphonsus v. Holder (9th Circuit, 1/18/2013). The court held it lacked jurisdiction
to review the petitioner's challenge to the regulations--which bar him from
seeking asylum because he is subject to reinstatement--because DHS has not
completed the reasonable fear proceedings. (AILA Doc. No. 12083054).
● Khattak v. Holder (1st. Circuit, 1/17/2013). The court found that the BIA and IJ did
not properly consider the evidence supporting the petitioner’s claim that he could
face future persecution in Pakistan by the Taliban because he is an ANP activist
and a special police officer. (AILA Doc. No. 13012354).
● Tegegn v. Holder (8th Circuit, 1/11/2013). The court found that while the
petitioner did not establish that he experienced past persecution, the BIA failed to
consider one aspect of his distinct claim of a well-founded fear of future
persecution and remanded the case. (AILA Doc. No. 13011748).
● Escobar v. Holder (7th Circuit, 9/7/2011). The court found that the BIA
inexplicably focused only on the FARC’s burning of Petitioner’s trucks in
 concluding he was not persecuted and rejected the Board’s finding that even if
he was persecuted, it was not due to a protected ground. (AILA Doc. No.
11090862).
● Precetaj v. Holder (1st Circuit, 8/11/2011). The court remanded the case for the
BIA to reconsider evidence of the systematic and serious abuse of Petitioner’s
children, which included two kidnappings, three beatings, and an aggravated
rape as part of his claim of past persecution. (AILA Doc. No. 11081261).
● Hu v. Holder (9th Circuit, 7/14/2011). The court found that the BIA ignored the
anti-government opinion Chinese officials imputed to Petitioner as motivation for
abuse, and erroneously concluded that his pro-labor activities did not constitute
an expression of political opinion. (AILA Doc. No. 11071567).
● Yusupov v. Att’y Gen. of the U.S. (3rd Circuit, 6/16/2011). The court directed the
BIA to grant withholding of removal without remand finding that despite two
opportunities, the BIA failed to support its conclusion that Petitioners are a
danger to the U.S. with substantial evidence. (AILA Doc. No. 11062246).
● Stserba v. Holder (6th Circuit, 5/20/2011). The court remanded the case, finding
that the BIA failed to consider whether the revocation of Petitioner’s Estonian
citizenship on account of her Russian ethnicity amounted to persecution. (AILA
Doc. No. 11052073).
● Javhlan v. Holder (9th Circuit, 12/3/2010). Over dissent, the court found that the
cumulative effect of multiple confrontations and threats by the Communist Secret
Police in Mongolia, which caused Petitioner mental anguish and physical
paralysis, constituted past persecution. (AILA Doc. No. 10122745).
● Afriyie v. Holder (9th Circuit, 7/26/2010). In a Ghanaian religious persecution
case, the BIA erred in its “unable or unwilling” analysis by ignoring evidence
favorable to Petitioner, misstating Petitioner’s testimony, and treating police
reports made by others as irrelevant. (AILA Doc. No. 10101360).
● Haxhiu v. Mukasey (7th Cir. 3/19/2008). The court found it premature for the IJ to
only analyze the Petitioner’s activities during his military service. The court also
found it was not decisive that the corruption of which Petitioner complained did
not pervade every level of the Albanian government. (AILA Doc. No. 08070366).
● Bosede v. Mukasey (7th Cir. 1/14/2008). The court found that the flaws in the IJ’s
reasoning made it question the fairness of the hearing, and that the IJ failed to
consider rebuttal evidence regarding whether Petitioner’s crimes were
aggravated felonies. (AILA Doc. No. 08022263).

Finality Under INA § 242(a)(1)

● Martinez v. Garland (4th Circuit, 11/16/2023). The court concluded that it lacked
jurisdiction under INA §242(b)(1) to consider the petition for review of the BIA’s
withholding-only order, denying statutory withholding and Convention Against
Torture (CAT) relief to the petitioner. The court found that while petitioner had
filed his petition for review within 30 days of that order, it was not a final order of
removal, and the petition was thus untimely because the petitioner failed to file
his petition within 30 days of any final order of removal. The court agreed with the
Second and Fifth Circuits that withholding-only orders do not affect the finality of
a decision reinstating a prior order of removal, in line with the U.S. Supreme
Court’s holdings in Nasrallah v. Barr and Johnson v. Guzman Chavez. The court
accordingly dismissed the petition for review and the petitioner’s related motion
for judicial notice. (AILA Doc. No. 23113003).
● Argueta-Hernandez v. Garland (5th Circuit, 7/10/2023). The court held the BIA’s
denial of withholding of removal and Convention Against Torture (CAT) relief was
not a final order of removal, and found, furthermore, that the petition for review
was untimely because it had been filed more than 30 days after the petitioner’s
reinstatement order became final. (AILA Doc. No. 23072008).
 ● Kouambo v. Barr (4th Circuit, 11/25/2019). The court concluded that the BIA’s
7/9/2018 order remanding the petitioner’s case to the IJ for background checks,
pursuant to the IJ’s grant of withholding of removal, did not constitute a “final
order of removal” within the meaning of INA §242. (AILA Doc. No. 19120505).
● Luna-Garcia v. Holder (10th Circuit, 2/10/2015). The court held where an alien
pursues reasonable fear proceedings following reinstatement of a prior removal
order, the reinstated order is not final until the reasonable fear proceedings are
complete. (AILA Doc. No. 15022000).
● Almutairi v. Holder (7th Circuit, 7/12/2013). The court held that an order from the
BIA resolving everything except an issue relating to voluntary departure satisfies
the finality rules under INA §242(a)(1), but the court should stay proceedings on
the petition until voluntary departure has been resolved. (AILA Doc. No.
13080551).
● Giraldo v. Holder (6th Circuit, 8/12/2011). The court held that the BIA’s remand to
the IJ for the sole purpose of allowing Petitioners to apply for voluntary departure
was an administratively final order of removal for purposes of INA §242, subject
to the court’s review. (AILA Doc. No. 11081232).

Firm Resettlement
● Aden v. Wilkinson (9th Circuit, 3/4/2021). The court held the BIA erred in finding
the petitioner did not qualify for an exception to the firm resettlement bar, and that
the evidence clearly compelled a conclusion that he had suffered past
persecution in Somalia on account of a protected ground. (AILA Doc. No.
21030844).
● Matter of K-S-E-, 27 I&N Dec. 818 (BIA 2020). The BIA ruled that when
determining the firm resettlement bar to asylum, a viable and available offer to
apply for permanent residence in a country of refuge (Brazil) is not negated by an
individual’s (Haiti) unwillingness to satisfy the terms of acceptance. (AILA Doc.
No. 20041031).
● Arrey v. Barr (9th Circuit, 2/26/2019). The court granted in part the petition for
review of the BIA's denial of the Cameroonian petitioner's asylum claims and
remanded, holding the BIA committed three errors while applying the firm
resettlement rule. (AILA Doc. No. 19032571).
● Ramos Lara v. Lynch (5th Circuit, 8/17/2016). The court upheld denial of asylum,
finding substantial evidence supported the BIA’s finding that the Bolivian
petitioner, who moved to Mexico in 2005, had failed to establish an exception to
the firm-resettlement bar. (AILA Doc. No. 16081962).
● Jang v. Lynch (9th Circuit, 12/22/2015). The court held that 22 USC §7842, which
states that a North Korean national "shall not be considered" a South Korean
national for refugee and asylum purposes, does not preclude a finding that a
North Korean has "firmly resettled" in South Korea. (AILA Doc. No. 15122303).
● Matter of D-X & Y-Z-, 25 I&N Dec. 664 (BIA 2012). The BIA held that
respondents were firmly resettled prior to coming to the United States and thus
ineligible for asylum, noting at the same time that a fraudulently-obtained permit
was still evidence of an offer of firm resettlement. (AILA Doc. No. 12010965).
● Thiam v. Holder (6th Circuit, 4/30/2012). The court rejected the government’s
motion to transfer the asylum case to the Fourth Circuit, and remanded to the
BIA to reevaluate the IJ’s firm resettlement finding. (AILA Doc. No. 12050241).
● Tchitchui v. Holder (2nd Circuit, 9/19/2011). The court held that the firm
resettlement inquiry requires consideration of all ties established by an alien in a
third country before entering the U.S., including ties formed prior to the
persecution giving rise to the asylum claim. (AILA Doc. No. 11092060).
● Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011). The BIA set forth a framework for
firm resettlement determinations, focusing exclusively on the existence of an offer
 of 'permanent resettlement', while allowing for the consideration of direct and
indirect evidence. (AILA Doc. No. 11051662).
● Bonilla v. Mukasey (1st Circuit, 8/25/2008). The court remanded the case to the
BIA to determine the significance of an expired residence stamp in the
petitioner's passport, and whether it constituted an offer of permanent residence
in a third country. (AILA Doc. No. 08101469).

Grant of Asylum is not an "Admission"

● Matter of V-X-, 26 I&N Dec. 147 (BIA 2013). The Board remanded the case to the
IJ, holding that a grant of asylum is not an “admission” to the U.S., and IJ should
make a threshold determination regarding termination of asylum status when the
asylee is in removal proceedings. (AILA Doc. No. 13071146).

In Absentia Order
● E. A. C. A. v. Rosen (6th Circuit, 1/12/2021). The court held that, based on the
totality of the circumstances (including the petitioner’s tender age and inability to
travel from New York to Memphis for the hearing), the petitioner established
exceptional circumstances justifying her failure to appear. (AILA Doc. No.
21012040).
● Matter of J.J. Rodriguez, 27 I&N Dec. 762 (BIA 2020). The BIA ruled that if DHS
returns an individual to Mexico to await an immigration hearing under MPP and
provides sufficient notice of that hearing, an IJ should enter an in absentia order
of removal if that individual fails to appear for the hearing. (AILA Doc. No.
20013132).

Inadequately Reasoned Decision

● Alcarez-Rodriguez v. Garland (9th Circuit, 12/28/2023). The court held the BIA
abused its discretion by failing to address petitioner’s arguments that she could
establish prima facie eligibility for withholding of removal and Convention Against
Torture (CAT) protection with evidence that was unavailable at the time of her
filing deadline - namely evidence related to her criminal history and medical
conditions. The court also found the BIA abused its discretion in failing to
properly evaluate whether petitioner had established good cause for missing the
filing deadline imposed by the IJ. On remand, the court instructed the BIA to
determine the applicable good-cause standard. (AILA Doc. No. 24010901).
● A.G. v. Garland (4th Circuit, 6/23/2023). The court held the IJ and BIA applied the
incorrect legal standard for their nexus analysis when they focused on the reason
for the MS-13 gang targeting the petitioner’s family members rather than him
upon his return to El Salvador. The court found, accordingly, that the Board
abused its discretion when it denied petitioner’s motion to reconsider his asylum
and withholding of removal claims, remanding for the agency to consider the
petitioner’s evidence under the correct legal standard. (AILA Doc. No.
23062909).
● Arreaga-Bravo v. Att'y Gen. (3rd Circuit, 3/2/2022). The court found the BIA,
when it reversed the IJ’s factual determination that it was more likely than not the
petitioner would be tortured if she returned to Guatemala, committed error by
inserting itself into the factfinder role (i.e., disagreeing with the IJ’s weighing of
evidence) rather than reviewing for clear error pursuant to 8 CFR
§1003.1(d)(3)(i). The court, accordingly, vacated the BIA’s removal order and
remanded the petitioner’s Convention Against Torture (CAT) protection claim.
(AILA Doc. No. 22031702).
● Ojo v. Garland (2nd Circuit, 2/9/2022). The court vacated the BIA’s denial of
asylum, holding it had applied the wrong legal standard to petitioner’s claim of
changed circumstances in Nigeria while, at the same time, its alternative
 discretionary determination failed to examine the totality of the circumstances.
(AILA Doc. No. 22031402).
● B.R. v. Garland (9th Circuit, 2/23/2022). The court granted respondent’s petition
for panel rehearing, withdrawing its earlier 7/12/2021 opinion, and replacing it
with one denying in part and granting in part the petition for review. It found the
BIA erred when it failed to credit or discredit the petitioner’s specific evidence that
the government’s evidence of “alienage” was tainted by violations of his rights.
The court also found the evidence did not compel reversal of the BIA’s denial of
Convention Against Torture (CAT) relief. The court remanded to afford DHS the
opportunity to rebut the petitioner’s evidence of taint, while instructing the BIA to
determine, on remand, whether DHS committed an egregious regulatory
violation. (AILA Doc. No. 22031102).
● Soto-Soto v. Garland (9th Circuit, 11/18/2021). Where a judge had sua sponte
requested a vote on whether to rehear Soto-Soto v. Garland en banc, the court
issued an order denying the rehearing en banc, because the matter failed to
receive a majority of votes of the non-recused active judges in favor of en banc
consideration. (In Soto-Soto, the court held the BIA erred by reviewing the IJ’s
decision de novo rather than for clear error and concluded, furthermore, that the
record established the petitioner had met her burden showing it was more likely
than not she would be tortured if removed to Mexico). (AILA Doc. No. 21112310).
● Munyuh v. Garland (9th Circuit, 9/25/2021). Granting petition for review of the
BIA’s denial of asylum, and remanding, the court held the IJ erred by failing to
give specific, cogent reasons for rejecting petitioner’s reasonable, plausible
explanations for the discrepancies tied to her declaration. (AILA Doc. No.
21090202).
● Thamotar v. Att’y Gen. (11th Circuit, 6/17/2021). The court held that when an
applicant is discretionarily denied asylum but granted withholding of removal, and
the IJ failed to reconsider its discretionary denial of asylum, the BIA must remand
for the IJ to conduct this required reconsideration. (AILA Doc. No. 21062832).
● Arevalo Quintero v. Garland (4th Circuit, 5/26/2021). The court held IJs have a
legal duty to fully develop the record, particularly with respect to pro se cases.
When a pro se respondent seeks asylum or withholding of removal based on his
or her membership in a PSG, the IJ has a duty to fully develop the record as to
the factual bases for that claim and to help the respondent articulate a cognizable
social group supported by those facts, to the extent that one can be found. (AILA
Doc. No. 21052732).
● Jimenez-Aguilar v. Barr (7th Circuit, 10/6/2020). Where the petitioner had told the
IJ that he feared persecution at the hands of gangs in Honduras on account of
his relationship to his mother, the court held the IJ should have advised him that
he might be eligible for asylum or withholding of removal. (AILA Doc. No.
20102736).
● Rodríguez-Villar v. Barr (1st Circuit, 7/11/2019). The court held the BIA’s
reasoning was inadequate to support a finding of no past persecution when it
failed to confront the serious nature of the threats received by the Dominican
petitioner on account of his political opinion. (AILA Doc. No. 19071507).
● Caballero-Martinez v. Barr (8th Circuit, 4/3/2019). The court remanded for the
BIA to explain why it found no matter that the petitioner had included a U visa
filing receipt in his remand request, when Matter of Sanchez-Sosa suggests a
completed application should pause the removal process. (AILA Doc. No.
19040531).
● Rosales Justo v. Sessions (1st Circuit, 7/16/2018). The court remanded the case,
finding the BIA erred by treating the Mexican government's unwillingness or
inability to protect asylum applicant from persecution as one element rather than
examining that evidence separately. The BIA erred as well, according to the
court, by discounting country condition reports. (AILA Doc. No. 18083001).
● Santos-Guaman v. Sessions (1st Circuit, 5/23/2018). The court vacated the BIA’s
order dismissing the petitioner’s appeal and remanded, finding that because the
Ecuadorian asylum applicant was a minor at the time of his mistreatment, the IJ
and BIA should have undertaken a child-specific analysis. (AILA Doc. No.
18062546).
● Cabrera v. Sessions (5th Circuit, 5/7/2018).The court held that the BIA erred both
in requiring the asylum petitioner to prove past persecution in order to establish a
claim based on a well-founded fear of future persecution and in recharacterizing
the petitioner's claimed social group. (AILA Doc. No. 18051733).
● Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168 (BIA 2017). The BIA held that an
immigration judge does not have authority to terminate removal proceedings in
order to give an arriving alien the opportunity to present an affirmative asylum
claim in the first instance to DHS. (AILA Doc. No. 17110230).
● Barahas-Romero v. Lynch (9th Circuit, 1/18/2017). The court granted the petition
for review, holding the BIA erred in applying the REAL ID Act’s “one central
reason” nexus standard, rather than the less demanding “a reason” standard, to
the petitioner’s application for withholding of removal. (AILA Doc. No. 17012434).
● Wang v. Lynch (7th Circuit, 10/26/2015). The court held the IJ misunderstood
petitioner's testimony, and as a result, wrongly concluded that the petitioner could
not show past persecution because he resisted only his wife's forced
contraceptive implant rather than a forced abortion or sterilization. (AILA Doc.
No. 15102764).
● Pan v. Holder (2nd Circuit, 1/26/2015). The court found the IJ and BIA failed both
to explain why the violence petitioner suffered was insufficiently egregious to
constitute persecution and consider record evidence that tended to prove the
Kyrgyz police were unwilling or unable to protect him. (AILA Doc. No. 15012943).
● Acharya v. Holder (2nd Circuit, 8/5/2014). The court remanded, finding the IJ
erred when holding the petitioner to a requirement of demonstrating political
opinion was the “central” as opposed to “at least one central” ground for
persecution by the Nepali Maoists. (AILA Doc. No. 14080649).
● Perez v. Holder (1st Circuit, 7/30/2014). The court remanded and asked the BIA
to review whether the factual error by the IJ relating to extortion by a gang in El
Salvador, was material or harmless, as well as whether the error affected the
petitioner’s asylum claim. (AILA Doc. No. 14081300).
● Aponte v. Holder (1st Circuit, 6/21/2012). The court held that the petitioner was
not eligible for cancellation because she could not impute her father’s time in the
U.S. to her continuous residence, but remanded her asylum claim, finding the
BIA’s decision inadequately reasoned. (AILA Doc. No. 12062751).
● Jabri v. Holder (1st Circuit, 3/16/2012). The court remanded the asylum case,
noting that the IJ did not present a reasoned analysis of the evidence as a whole,
and finding that the IJ relied on at least two perceived “inconsistencies” that were
not direct inconsistencies. (AILA Doc. No. 12031933).
● Haile v. Holder (4th Circuit, 12/2/2011) (Posted 4/18/2012). In an unpublished
decision, the court vacated the BIA order, noting the IJ committed multiple legal
and factual errors constituting an abuse of discretion, including engaging in
speculation and failing to consider corroborating evidence. Courtesy of David
Goren. (AILA Doc. No. 12041841).
● Eneh v. Holder (9th Circuit, 4/16/2010). The court granted petition, finding the
BIA’s reasoning at odds with the IJ’s decision, petitioner’s credible testimony, and
judicially-noticeable facts. The court remanded to BIA for a clearer explanation of
its decision. (AILA Doc. No. 10052163).
● Camara v. Att'y Gen. of the U.S. (3rd Circuit, 9/4/2009). The court remanded,
holding that the BIA's denial of Petitioner's past persecution claim was not
supported by substantial evidence, where Petitioner presented evidence that she
witnessed a brutal assault on a family member. (AILA Doc. No. 09093063).
 ● Zheng v. Mukasey (2nd Circuit, 1/13/2009). The court held that the IJ erred as to
the timeliness of the petitioner’s application for asylum and in finding that the
petitioner had not testified credibly in support of his claims, and remanded the
case for further review. (AILA Doc. No. 09031664).
● Karapetyan v. Mukasey (9th Circuit, 9/16/2008). The court held that an Armenian
who was threatened, beaten, and detained because of mixed ethnicity and
political opinion, was statutorily eligible for asylum, and found the IJ had abused
her discretion when she denied a continuance to comply with fingerprint
requirements. (AILA Doc. No. 08102769).
● Sowe v. Mukasey (9th Circuit, 8/19/2008). The court upheld the finding that
country conditions affecting the Sierra Leonean petitioner had improved.
However, the court rejected the BIA's discretionary denial of humanitarian asylum
and remanded the case to consider the issue of harm to the petitioner's family.
(AILA Doc. No. 08101466).
● Passi v. Mukasey (2nd Circuit, 7/23/2008). The court found the inference that the
petitioner no longer had a well-founded fear of persecution was based entirely on
a report detailing general improvements in the Congo, notwithstanding the
persistence of conflict in the petitioner's hometown. (AILA Doc. No. 08091662).

Jurisdiction
● Bazile v. Garland (1st Circuit, 8/4/2023). The court concluded that, for purposes
of judicial venue under INA §242(b)(2), an IJ completes the proceedings at the
court where the proceedings are commenced - absent a formal change in
administrative venue - and consequently denied the petition for review. (AILA
Doc. No. 23083010).
● Mendoza-Linares v. Garland (9th Circuit, 7/5/2023). The court denied the petition
for rehearing en banc in the instant case, holding Congress precluded it from
asserting jurisdiction over the merits of individual expedited removal orders, even
with respect to constitutional challenges. (AILA Doc. No. 23071306).
● Santos-Zacaria v. Garland (5/11/2023). The Supreme Court held that INA
§242(d)(1) is not jurisdictional, and thus a noncitizen is not required to request
discretionary forms of administrative review, such as reconsideration of an
unfavorable BIA determination, to satisfy the §242(d)(1) exhaustion requirement.
(AILA Doc. No. 23051103).
● Mendoza-Linares v. Garland (9th Circuit, 10/24/2022). The court held it lacked
jurisdiction over the petition for review, finding Congress had clearly precluded it
from asserting jurisdiction over the merits of individual expedited removal orders,
even with respect to constitutional challenges. (AILA Doc. No. 22110410).
● Cante-Lopez v. Garland (1st Circuit, 10/5/2022). The court dismissed petitioner’s
challenge to the BIA’s denial of his withholding of removal application, finding the
petitioner had not challenged the basis of the IJ’s denial when he appealed that
ruling to the BIA. The issue had not, consequently, been exhausted. (AILA Doc.
No. 22102501).
● Garland, et al. v. Gonzalez, et al., 596 U.S. ___ (2022). On 6/13/2022, the
Supreme Court ruled 6-3 that INA §242 (f)(1) deprives district courts of
jurisdiction to entertain respondents’ requests for class-wide injunctive relief. The
terms “enjoin” and “restrain” retain their ordinary meaning. The lower courts do
retain the authority to “enjoin” or “restrain” the operation of the relevant statutory
provisions “with respect to the application of such provisions to an individual
[noncitizen] against whom proceedings under such part have been initiated.”
(AILA Doc. No. 22061405).
● Patel, et al. v. Garland, 596 U.S. ___ (2022). On 5/16/2022, the Supreme Court
ruled 5-4 that federal courts lack jurisdiction to review facts found in discretionary
relief proceedings under INA § 245 and other provisions listed in INA §
242(a)(2)(B)(i). (AILA Doc. No. 22051606).
● Lopez Morales v. Att’y Gen. (11th Circuit, 5/11/2022). The court held the BIA
provided a reasoned consideration of the petitioner’s racial persecution asylum
claim. It noted, furthermore, that he did not exhaust his claim he was entitled to
advance notice of the IJ’s need for specific corroborating evidence to meet his
burden of proof (and an automatic continuance to provide that evidence) after a
determination his testimony was credible [according to 8 U.S.C § 1158(b)(1)(B)(ii)
(2012)]. (AILA Doc. No. 22051803).
● Kithongo v. Garland (7th Circuit, 5/9/2022). The court dismissed petitioner’s
applications for adjustment of status and withholding of removal, finding it had no
jurisdiction to reweigh the factors the IJ considered when determining whether
the petitioner’s conviction was a particularly serious crime. (AILA Doc. No.
22051801).
● Bhaktibhai-Patel v. Garland (2nd Circuit, 4/27/2022). The court dismissed the
petition for review for lack of jurisdiction, holding both the petitioner’s 2016 order
of removal and DHS’ decision to reinstate that removal order became final more
than 30 days before the petitioner filed the petition for review. Consequently, the
IJ’s adverse withholding determination did not qualify as an order of removal and
thus failed to fall within INA §242’s jurisdictional grant. The court reasoned that,
in light of recent Supreme Court decisions, the INA did not permit review of an
agency withholding-only decision unless it did so while reviewing a final order of
removal. AILA Doc. No. 22050454).
● Gutierrez-Zavala v. Garland (9th Circuit, 4/26/2022). Upholding the BIA’s denial
of petitioner’s motion to reopen, the court concluded it could properly deny a
petition for review based on the BIA’s lack of jurisdiction under INA §241(a)(5),
even when the BIA did not rely on that specific jurisdictional bar. (AILA Doc. No.
22050458).
● Xu v. Garland (1st Circuit, 2/18/2022). The court dismissed the petition for review
of a Final Administrative Removal Order (FARO) for lack of jurisdiction, finding
DHS’ cancellation of the FARO was valid, and thus no final removal order against
the petitioner (at the present time). (AILA Doc. No. 22030804).
● Gomes v. Garland (1st Circuit, 11/3/2021). The court held it lacked jurisdiction to
consider the petitioner’s claim that the BIA erred when it rejected his proposed
particular social group (PSG) - Brazilian landowners - finding he had failed to
exhaust his administrative remedies. (AILA Doc. No. 21110907).
● Singh v. Barr (9th Circuit, 12/9/2020). The court dismissed the petitions for review
of the IJ’s decisions denying the petitioners’ motions to reopen their credible fear
determinations on the basis that IJs lack jurisdiction to reopen credible fear
proceedings under 8 CFR §1208.30(g)(2)(iv)(A). (AILA Doc. No. 20121632).
● Department of Homeland Security v. Thuraissigiam (6/25/2020). The U.S.
Supreme Court held that restrictions placed on asylum seekers’ ability to obtain
judicial review of expedited removal orders under a federal habeas statute do not
violate either the Constitution’s Suspension Clause or Due Process Clause.
(AILA Doc. No. 20062534).
● E.O.H.C. v. DHS, et al. (3rd Circuit, 2/13/2020). The court held that while a
detained noncitizen seeking relief a court of appeals cannot provide (on a petition
for review of a final removal order), a district court is not barred from considering
those claims under INA §§242(a)(4) and (b)(9). (AILA Doc. No. 20021937).
● Daoud v. Barr (1st Circuit, 1/28/2020). The court held the jurisdictional bar in INA
§242(a)(2)(C)-(D) divested it of jurisdiction to review petitioner’s challenge to the
BIA’s alternative discretionary holding given his failure to present any questions
of law or constitutional claims. (AILA Doc. No. 20020532).
● Lavery v. Barr (5th Circuit, 11/22/2019). The court held that petitioner, as a Visa
Waiver Program (VWP) participant, was limited to contesting his removal on the
basis of an asylum application, and thus INA §217(b)(2) barred him from
 challenging his deprivation of a hearing by way of a motion to reopen. (AILA Doc.
No. 19120201).
● Mendez-Gomez v. Barr (8th Circuit, 6/27/2019). The court held that it lacked
jurisdiction to review the reinstatement of petitioner’s prior removal order
because the issue had not been exhausted and, furthermore, the petitioner could
not succeed on his due process claim because he failed to show prejudice. (AILA
Doc. No. 19070191).
● Fabian-Soriano v. Barr (1st Circuit, 5/31/2019). The court held it lacked
jurisdiction under INA § 242(a)(2)(C) to consider the petitioner's challenge to the
denial of withholding of removal - because the petitioner, with a conviction for a
crime involving moral turpitude, raised no colorable legal or constitutional claims.
(AILA Doc. No. 19061339).
● Thuraissigiam v. DHS (9th Circuit, 3/7/2019). The court reversed the district
court's dismissal of the petition for lack of subject matter jurisdiction, holding 8
U.S.C. § 1252(e)(2) violates the Suspension Clause as applied to Thuraissigiam,
and accordingly remanded. (AILA Doc. No. 19030800).
● Nicusor-Remus v. Sessions (9th Circuit, 8/8/2018). The court held the petitioner's
first departure in 2004 executed the 2002 removal order against him. That
removal order could not then be used to warrant placing him into Visa Waiver
Program (VWP) asylum-entry proceedings since he entered the United States
through parole in 2004, not the Visa Waiver Program. ICE placed him into VWP
asylum-only proceedings under the mistaken belief that he should be viewed as
having made entry through the Visa Waiver Program. The court held that since
the final order of removal had been executed there was no existing final order of
removal and thus dismissed the petition for lack of jurisdiction. (AILA Doc. No.
18092070).
● Dhakal v. Sessions (7th Circuit, 7/13/2018). The court held that while its review
was not jurisdictionally barred, it could not review an affirmative asylum denial on
the merits because the denial was not administratively final given the fact that the
petitioner held TPS and had not yet been placed in removal proceedings. (AILA
Doc. No. 18091731).
● Osorio-Martinez v. Attorney General (3rd Circuit, 6/18/2018). The court found the
jurisdiction-stripping provision of the INA operates as an unconstitutional
suspension of the writ of habeas corpus as applied to SIJ designees seeking
judicial review of orders of expedited removal. (AILA Doc. No. 18062135).
● Martinez v. Sessions (9th Circuit, 7/20/2017, amended 10/12/2017). The court
held that the BIA's dismissal for lack of jurisdiction of an appeal of an IJ's
negative reasonable fear determination in reinstatement proceedings was the
final administrative order, and thus the petitioner timely filed his petition. (AILA
Doc. No. 17072666).
● J.E. F.M. v. Lynch (9th Circuit, 9/20/2016). The court found it had no jurisdiction
to review a class action brought by unaccompanied minors asserting they had
due process and statutory rights to appointed counsel in immigration
proceedings. (AILA Doc. No. 16092106).
● Castro, et al. v. DHS, et al. (3rd Circuit, 8/29/2016). The court affirmed the district
court’s order dismissing the petitioners’ habeas petitions for lack of
subject-matter jurisdiction, and found noncitizens seeking initial admission cannot
invoke the U.S. Constitution’s Suspension Clause. (AILA Doc. No. 16083032).
● Ordonez-Tevalan v. Att’y Gen. (3rd Circuit, 6/23/2016). The court held that
because the BIA's reissued decisions and orders did not alter the challenged
decisions and orders, it retained jurisdiction over the petition to review. The court
upheld, on the merits, the denial of the petitioners’ asylum applications based on
adverse credibility and failure to establish that any alleged abuse suffered or
feared was a result of or would result from membership in a “particularized
protected social group.” (AILA Doc. No. 16062735).
● Hih v. Lynch (6th Circuit, 2/9/2016). When the BIA remanded the record for the
sole purpose of allowing the petitioner to apply for voluntary departure, the court
held that it lacked jurisdiction to review the BIA's earlier 2013 removal order since
that decision was "final" for the purposes of appellate review. (AILA Doc. No.
16021013).
● Rizo v. Lynch (9th Circuit, 1/14/2016). The court upheld the BIA's denial, holding
that the petitioner's asylum claim was unexhausted because his statements to
the BIA failed to meaningfully apprise it of the basis for his appeal, and that the
court thus lacked jurisdiction to review his claim. (AILA Doc. No. 16011507).
● Pena v. Lynch (9th Circuit, 9/28/2015). The court held that, pursuant to the
jurisdiction-stripping provisions of INA §2429(a)(2)(A), it lacked jurisdiction to
review the IJ's affirmance of an asylum officer's negative, credible fear
determination in the petitioner's expedited removal proceedings. (AILA Doc. No.
15092903).
● Abdisalan v. Holder (9th Circuit, 1/6/2015). The en banc court held that when the
BIA issues a decision denying some claims while remanding others to the IJ, its
decision is not a final order of removal with regard to any of the claims, and
therefore does not trigger the 30-day window in which to file a petition for review.
(AILA Doc. No. 15080410).
● Ramirez-Matias v. Holder (1st Circuit, 2/13/2015). The court dismissed the
petition for judicial review, finding "no hint of any cognizable constitutional claim
or question of law" with regards to the IJ's handing of his NACARA claim or the
denial of his asylum and/or withholding of removal case. (AILA Doc. No.
15031063).
● Shah v. Holder (1st Circuit, 7/2/2014). The court denied the petition for review,
finding the BIA did not abuse its discretion in denying the motion to reopen and it
did not have jurisdiction to consider new evidence relating to persecution by the
Taliban in Pakistan that was not presented to the BIA. (AILA Doc. No. 14071100).
● Tian v. Holder (7th Circuit, 3/13/2014). The court found it lacked jurisdiction to
review the BIA’s conclusion that the Chinese petitioner’s asylum application was
time-barred, and denied his CAT and withholding claims. (AILA Doc. No.
14032453).
● Chen v. Holder (7th Circuit, 3/10/2014). The court found that the petitioner was
unable to articulate any political opinion regarding the Chinese government’s
taking of his property and dismissed the asylum petition for lack of jurisdiction.
(AILA Doc. No. 14031841).
● Agha v. Holder (8th Circuit, 2/19/2014). The court denied the petition, finding that
the Palestinian petitioner failed to articulate to the BIA his current argument that
he is entitled to a determination of his nationality, or lack thereof, as a predicate
to a determination of his asylum eligibility. (AILA Doc. No. 14032459).
● Charuc v. Holder (1st Circuit, 12/6/2013). The court dismissed, for lack of
jurisdiction, the petition to review a final order of the BIA refusing to reconsider a
previous denial of a motion to reopen. (AILA Doc. No. 13121644).
● Purba v. Holder (10th Circuit, 10/28/2013). The court dismissed the untimely
petition for review for lack of jurisdiction, finding that the initial removal order was
final, notwithstanding a subsequent remand to the IJ regarding voluntary
departure. (AILA Doc. No. 13102950).
● Mazariegos-Paiz v. Holder (1st Circuit 10/25/2013). The court held that the
administrative exhaustion requirement is satisfied as to particular issues when
the BIA has addressed those claims on the merits, regardless of whether the
petitioner himself raised them, and denied the petition for review. (AILA Doc. No.
13102847).
● Shunaula v. Holder (2nd Circuit,10/16/2013). The court dismissed the petitions
for review, finding that INA §242(a)(2)(A) deprived the court of jurisdiction to hear
the petitioner’s due process challenge to the 1997 order of expedited removal
 underlying the BIA’s finding of ineligibility for adjustment. (AILA Doc. No.
13102256).
● Castellanos-Pineda (10th Circuit, 9/20/2013). The court concluded that the
petitioner failed to exhaust her administrative remedies and that it lacked
jurisdiction to consider them, and therefore dismissed the petition to review the
BIA’s denial of the applications for restriction on removal and CAT relief. (AILA
Doc. No. 13092444).
● Abdisalan v. Holder (9th Circuit, 9/6/2013). Despite a mixed BIA decision, the
court held it lacked jurisdiction to review the BIA’s underlying denial of asylum,
the only issue raised in both petitions for review, because the petitioner failed to
file a timely petition for review of that decision. (AILA Doc. No. 13092451).
● Cano-Saldarriaga (1st Circuit, 9/4/2013). Because it was unclear whether the
BIA’s remand to the IJ constituted a final order of removal and the petitioner
subsequently filed a timely application for asylum, withholding and CAT relief, the
court declined to exercise jurisdiction. (AILA Doc. No. 13092707).
● Desai v. Att’y Gen. (3rd Circuit, 8/21/2012). The court upheld the BIA’s
determination that it lacked jurisdiction to review a motion to reopen sua sponte -
filed by the petitioner out of time and after he was already removed from the
country - because of the post-departure bar. (AILA Doc. No. 12082746).
● Khan v. Att’y Gen. (3rd Circuit, 8/14/2012). The court held that it had jurisdiction
to review the petition, which was filed before the BIA issued its final decision on
the motion to reopen, noting the Attorney General did not show he was
prejudiced by letting the petition ripen. (AILA Doc. No. 12081575).
● Letran v. Holder (1st Circuit, 6/7/2013). The court held that it did not have
jurisdiction to review whether the petitioner registered for ABC benefits by the
12/31/1991 deadline, and denied his asylum claim, which was based his
involvement in a student activist group from 1987 to 1988. (AILA Doc. No.
13061306).
● Nijjar v. Holder (9th Circuit, 8/1/2012). Quoting The Beatles, “All You Need Is
Love,” the court found that under INA §208(c)(2), Congress conferred the
authority to terminate asylum exclusively on DOJ (not DHS) and invalidated 8
CFR §§208.24(a) and 1208.24(a) as ultra vires. (AILA Doc. No. 12080845).
● Nian v. Holder (9th Circuit, 6/28/2012) The court found that it had jurisdiction to
review the denial of an alien crew member’s “asylum-only” proceeding because it
is the functional equivalent of a final order of removal, but denied the petition for
review. (AILA Doc. No. 12070251).
● Castaneda-Castillo v. Holder (1st Circuit, 4/12/2012). The court found authority to
issue a final judgment in the asylum case of a former Peruvian military officer,
noting that it explicitly retained jurisdiction over the case after remanding to the
BIA in 2011. (AILA Doc. No. 12041350).
● Qureshi v. Holder (5th Circuit, 11/28/2011). The court found that termination of
asylum under 8 CFR §208.24 does not “mark the consummation of a
decision-making process” and is therefore, not a final agency action for purposes
of APA jurisdiction. (AILA Doc. No. 11120160).
● Pinto v. Holder (9th Circuit, 8/12/2011). The court held that the BIA’s reversal of
asylum and remand for voluntary departure proceedings was a final order and
that neither Dada v. Mukasey, nor the 2009 voluntary departure regulations
undermines the court’s jurisdiction. (AILA Doc. No. 11082660).
● Pllumi v. Att’y Gen. of the U.S. (3rd Circuit, 4/6/2011). The court found jurisdiction
over the denial of a sua sponte motion and held that the BIA erred in finding that
Petitioner’s health issues were irrelevant to his persecution claim. (AILA Doc. No.
11040732).
● Saval v. Holder (9th Circuit, 9/23/2010). Over dissent, the court dismissed the
principal asylum applicant’s claim as moot due to his death, but declined to
 dismiss the derivative’s claim in light of the possible collateral consequences of
such action. (Withdrawn 5/5/2011). (AILA Doc. No. 10122073).
● Neves v. Holder (1st Circuit, 7/21/2010). The court found jurisdiction to review the
BIA’s decision denying equitable tolling of the time and number limitations on the
motion to reopen, but not the BIA’s refusal to sua sponte reopen. (AILA Doc. No.
10100863).
● Bhargava v. Holder (3rd Circuit, 7/1/2010). The court held that the IJ and BIA did
not err in determining that the immigration judge lacked jurisdiction to review
DHS’s termination of Petitioner’s asylum status. (AILA Doc. No. 10110360).
● Kporlor v. Holder (4th Circuit, 3/5/2010). The court dismissed the petition, finding
lack of jurisdiction to review withholding of removal denials in cases involving
certain criminal aliens and CAT claims involving petitioners’ failure to exhaust
administrative remedies. (AILA Doc. No. 10032966).
● Liadov v. Mukasey (8th Cir. 3/14/2008). The court held that the BIA’s refusal to
take jurisdiction over an untimely appeal through the self-certification process
was an unreviewable action committed to the agency's discretion. (AILA Doc. No.
08041832).
● Lemus-Galvan v. Mukasey (9th Cir. 3/11/2008). The court held that the
jurisdiction stripping provision of INA §242(a)(2)(C), barring review of final orders
of removal for criminal offenses, did not deprive the court of jurisdiction over
denials of deferral of removal under CAT. (AILA Doc. No. 08041765).

Migrant Protection Protocols

● Biden, et al. v. Texas, et al., 597 U.S. ___ (2022). On 6/30/2022, the Supreme
Court ruled that the Biden administration’s recission of Remain in Mexico was a
valid action. Key aspects of the Court’s decision are: 1) District court did not have
jurisdiction to stop the Biden administration’s recission of Remain in Mexico
under the Immigration and Nationality Act, INA § 242(f)(1); 2) INA § 235(b)(2)(C)
allows DHS, in its discretion, to return noncitizens to Mexico to await their
immigration proceedings, i.e., “may”, not “shall”; 3) DHS’ second October 2021
Memorandum replacing its first June 2021 Memorandum (rescinding MPP) has
legal effect once the Court’s decision has been certified and sent back down,
usually within 28 days - at least under its analysis employing the INA. What’s
next? This may not be the end of litigation since the Court directed the district
court to consider the question of the validity of the October 2021 Memorandum
under section 706 of the Administrative Procedure Act (APA), in the first instance.
(AILA Doc. No. 22063000).
● Matter of M-D-C-V-, 28 I&N Dec. 18 (BIA 2020). The BIA ruled that, under INA
§235(b)2(c), an individual who is arriving on land from a contiguous foreign
territory may be returned by DHS to that country pursuant to MPP, regardless of
whether the individual arrives at or between a designated POE. (AILA Doc. No.
20071400).

Mootness
● Mendoza-Flores v. Rosen (5th Circuit, 12/29/2020). The court held that even if
the BIA had erred in denying withholding of removal to the petitioner,
inadmissibility was not a collateral consequence of the BIA’s decision because
the petitioner was still subject to his February 2012 removal order due to his
aggravated felony conviction. (AILA Doc. No. 21011942).

Persecution of Others Bar

● Gebrgzabher v. Garland (5th Circuit, 12/19/2022). The court upheld the BIA’s
application of the persecutor bar to the petitioner, finding the record supported
the BIA’s conclusion that petitioner assisted in persecution in Eritrea - impeding
the escape of persecuted prisoners. (AILA Doc. No. 22122998).
 ● Matter of O-R-E-, 28 I&N Dec. 330 (BIA 2021). The evidence indicated the
respondent ordered, incited, assisted, or otherwise participated in the Rwandan
genocide, and he failed to produce sufficient countervailing evidence to
demonstrate that he was not subject to the genocide bar at section
212(a)(3)(E)(ii) of the Act. The BIA further found the respondent did not submit
sufficient objective evidence to support his fear of torture by the Rwandan
government. Finally, the BIA opined that IJs and the Board lack authority to
recognize the equitable defense of laches in removal proceedings. (AILA Doc.
No. 21072233).
● Alvarado v. Whitaker (1st Circuit, 1/24/2019). The court upheld reversal of
petitioner's NACARA cancellation, finding persecutor bar does not require an
assistant to share persecutors' motive. The bar applies to one who knowingly
aided persecution based on a protected ground, regardless of whether (s)he held
an "illicit motive." (AILA Doc. No. 19020836).
● Munyakazi v. Lynch (4th Circuit, 7/11/2016). The court denied the petition for
review, finding the petitioner, an ethnic Hutu and citizen of Rwanda alleged to
have participated in the Rwandan genocide, had failed to prove by a
preponderance of the evidence that he was not subject to the “persecutor bar.”
(AILA Doc. No. 16071260).
● Matter of Vides Casanova, 26 I&N Dec. 494 (BIA 2015). The BIA found
respondent removable, where killing of civilians and acts of torture occurred
during his command of the Salvadoran National Guard, and he interfered with
investigations, and failed to hold the perpetrators accountable. (AILA Doc. No.
15031262).
● Meng v. Holder (2nd Circuit, 11/3/2014). The court found the record evidence
sufficient to support a finding that petitioner assisted in the persecution of others,
reporting women with unauthorized pregnancies to the authorities for two
decades, knowing they would be subjected to forced abortions. (AILA Doc. No.
14111048).
● Kumar v. Holder (9th Circuit, 8/29/2013). The court granted the petition for review
and remanded, concluding that the BIA misapplied the relevant precedent in
determining whether the petitioner’s actions rose to the level of “personal
involvement” when triggering the persecutor bar. (AILA Doc. No. 13092740).
● Abdallahi v. Holder (6th Circuit, 7/31/2012). The court rejected Petitioner’s due
process challenges and upheld the IJ and BIA’s finding that he assisted in the
torture of others, noting that he had the requisite knowledge that the torture was
to occur or was occurring. (AILA Doc. No. 12080750).
● Negusie v. Holder (3/3/2009). The Supreme Court reversed and remanded to the
BIA, finding error in the misapplication of Fedorenko regarding coerced conduct
and the persecutor bar to asylum. (AILA Doc. No. 09030363).
● Chen v. U.S. Att’y Gen. (11th Cir. 1/17/2008). The court held that the standard for
determining whether an applicant is ineligible for asylum and withholding due to
assistance or participation in persecution is whether his or her conduct was
active, direct and integral to the underlying persecution. (AILA Doc. No.
08022165).

Reentry After Removal

● Ortega v. Garland (7th Circuit, 3/29/2024). The court held substantial evidence
supported the IJ’s and BIA’s determinations that the petitioner, who with his
family had experienced multiple attacks and threats of violence in Mexico, failed
to establish he would be persecuted by individuals whom the Mexican
government would be unable or unwilling to control. The court found the BIA
properly reviewed the IJ’s determination on country conditions evidence for clear
error pursuant to 8 CFR §1003.1(d)(3)(i), and the petitioner’s argument that the
Mexican government was less likely to protect him given that he was no longer
 employed by a Mexican government entity was mere speculation. The court thus
upheld the agency’s denial of withholding of the removal. (AILA Doc. No.
24040573).
● Garcia Sarmiento v. Garland (1st Circuit, 8/17/2022). After finding persons
subject to reinstated removal orders, following unlawful reentry, are barred from
reopening their removal orders, the court held the BIA correctly found petitioner
was barred from reopening his removal order under INA §241(a)(5). (AILA Doc.
No. 22091302).
● Iraheta-Martinez v. Garland (9th Circuit, 9/7/2021). Given that the petitioner’s
prior removal order was reinstated, the court held he had no right under the INA
to seek asylum nor a constitutional right to have DHS consider whether, in its
discretion, to decline to reinstate that order. (AILA Doc. No. 21092015).
● Orozco-Lopez v. Garland (9th Circuit, 8/25/2021). The court held noncitizens with
reinstated removal orders are statutorily entitled to counsel at their reasonable
fear hearings before an IJ. However, this entitlement is cabined by 8 CFR
§208.31(g)’s temporal limitations on IJ review hearings. That is, “[i]n the absence
of exceptional circumstances,” the reasonable fear review hearing “shall be
conducted by the immigration judge within 10 days of the filing of the Notice of
Referral to Immigration Judge with the immigration court.” Because this right was
denied to the Guatemalan petitioner, the court remanded his case to the BIA for
further proceedings. (AILA Doc. No. 21090204).
● Matter of A-S-M-, 28 I&N Dec. 282 (BIA 2021). The BIA ruled that an applicant
may seek withholding of removal from a country in withholding-only proceedings,
even if that country is different from the country of removal that was initially
designated in the reinstated removal order on which the withholding-only
proceedings are based. (AILA Doc. No. 21040936).
● Padilla Cuenca v. Barr (9th Circuit, 11/13/2019, amended 4/14/2020). The court
held the language of INA §241(a)(5), allowing an immigration officer to reinstate
a prior removal order, unambiguously and permanently bars reopening of the
prior removal order under INA §239a(c)(7). (AILA Doc. No. 19111830).
● Padilla Cuenca v. Barr (9th Circuit, 11/13/2019). The court denied the petition for
review, holding the language of INA §241(a)(5) – allowing an immigration officer
to reinstate a prior removal order - unambiguously and permanently bars
reopening a reinstated prior removal order under INA §239a(c)(7). (AILA Doc.
No. 19111830).
● Lara-Aguilar v. Sessions (4th Circuit, 5/2/2018). The court denied the petition for
review, holding an individual subject to a reinstated order of removal may not
apply for asylum, even when the factual basis for the asylum claim did not exist
prior to the original removal. (AILA Doc. No. 18051730).
● Matter of L-M-P-, 27 I&N Dec. 265 (BIA 2018). The BIA found DHS had the
authority to file a motion to reconsider in Immigration Court and that the applicant
was ineligible for asylum in withholding of removal only proceedings subject to a
reinstated order of removal pursuant to §241(a)(5). (AILA Doc. No. 18042731).
● Garcia v. Sessions (7th Circuit, 10/11/2017). While the court found the Honduran
petitioner had standing to assert a statutory right to apply for asylum, the court
concluded that INA §241(a)(5) plainly prohibited a noncitizen subject to a
reinstated order of removal from applying for asylum. (AILA Doc. No. 17101300).
● R-S-C v. Sessions (10th Cir., 9/6/2017). The court held that the Attorney
General’s interpretation of the “withholding-only rule” to mean illegal reentrants
with reinstated removal orders are ineligible for asylum was reasonable and
entitled to deference under Chevron. (AILA Doc. No. 17090802).
● Calla Mejia v. Sessions (4th Circuit, 8/9/2017). The court held an individual
subject to a reinstated removal order is ineligible to seek asylum, finding
Congress had intended, by enacting the reinstatement bar, to preclude
 individuals subject to such removal orders from applying for asylum. (AILA Doc.
No. 17081142).
● Martinez v. Sessions (9th Circuit, 7/20/2017). The court held the BIA's dismissal
of an appeal of an IJ's negative reasonable fear determination in reinstatement
removal proceedings for lack of jurisdiction was the final administrative order, and
thus the petitioner timely filed his petition. (AILA Doc. No. 17072666).
● Garcia v. Sessions (7th Circuit, 6/8/2017). The court dismissed the petition for
review for lack of jurisdiction while holding that, because asylum is a form of
discretionary relief, the petitioner who was subject to a reinstated order of
removal lacked standing to challenge the federal regulations prohibiting him from
applying for it. (AILA Doc. No. 17071007).
● Garcia-Garcia v. Sessions (1st Circuit, 5/3/2017). The court denied the petition
for review, holding noncitizens subject to reinstated orders of removal may not
apply for asylum, even though they may be entitled to withholding of removal.
(AILA Doc. No. 17050802).
● Cazun v. Attorney General (3rd Circuit, 5/2/2017). Finding Congress had not
spoken clearly on the issue in the relevant statute, the court nonetheless gave
Chevron deference to the BIA’s statutory interpretation that noncitizens subject to
reinstated removal orders are ineligible to apply for asylum. (AILA Doc. No.
17050804).
● Perez-Guzman v. Lynch (9th Circuit, 8/31/2016). The court upheld the finding that
by regulation, 8 CFR §1208.31(e), a noncitizen subject to a reinstated removal
order is prevented from applying for asylum. Remand was ordered, however, for
the BIA to reconsider the petitioner’s applications for withholding of removal and
protection under the Convention Against Torture (CAT) in light of intervening
circuit precedent in Henriquez-Rivas v. Holder and Madrigal v. Holder. (AILA Doc.
No. 16090160).
● Jimenez-Morales v. Att'y Gen. (11th Circuit, 5/2/2016). The court denied the
petition for review, finding INA §241(a)(5) renders noncitizens with reinstated
removal orders ineligible to apply for asylum. (AILA Doc. No. 16050461).
● Ramirez-Mejia v. Lynch (5th Circuit, 2/11/2016). The court denied the petition for
rehearing en banc, reaffirming the principal that INA §241(a)(5)'s "plain language,
relevant regulations, and analogous case law" compel the conclusion that asylum
is not available as relief to those individuals found guilty of illegal reentry. (AILA
Doc. No. 16021608).
● Ramirez-Mejia v. Lynch (5th Circuit, 7/21/2015). The court held that INA
§241(a)(5)'s plain language, relevant regulations, and analogous case law
compel the conclusion that immigrants whose removal orders are reinstated
following illegal re-entry into the United States may not apply for asylum. (AILA
Doc. No. 15072200).
● Luna-Garcia v. Holder (10th Circuit, 2/10/2015). The court held where an alien
pursues reasonable fear proceedings following reinstatement of a prior removal
order, the reinstated order is not final until the reasonable fear proceedings are
complete. (AILA Doc. No. 15022000).
● Ortiz-Alfaro v. Holder (9th Circuit, 8/27/2012) The court held it lacked jurisdiction
to review the petitioner's challenge to the regulations--which bar him from
seeking asylum because he is subject to reinstatement--because DHS has not
completed the reasonable fear proceedings. (AILA Doc. No.12083054).

Special Immigrant Juveniles

● Moreno Galvez v. Jaddou (9th Circuit, 11/3/2022). The court affirmed the district
court’s issuance of a permanent injunction requiring USCIS to adjudicate Special
Immigrant Juvenile (SIJ) petitions within 180 days of filing while vacating a
provision permitting SIJ petitioners to toll the statutory deadline. (AILA Doc. No.
19031437).
 ● C.J.L.G. v. Barr (9th Circuit, 5/3/2019). The court granted the petition for review
and remanded, concluding the IJ erred by failing to advise the 14-year-old
Honduran petitioner he was an at-risk child potentially eligible for relief as a
Special Immigrant Juvenile (SIJ). (AILA Doc. No. 19050912).
● Budhathoki v. Nielsen (5th Circuit, 8/1/2018). The court upheld USCIS'
conclusion that, although valid, state court child support orders for individuals
over age 18 are not equivalent to the "care and custody" rulings required for
individuals to qualify as "dependents" for federal SIJ purposes. (AILA Doc. No.
18091135).

Third Country Travel Ban

● East Bay Sanctuary Covenant, et al. v. Barr, et al. (9th Circuit, 7/6/2020). The
court upheld a lower court’s injunction preventing the implementation of
DHS/DOJ joint interim final rule that categorically denies asylum to individuals
arriving at the U.S./Mexico border. (AILA Doc. No. 20070636).

Unaccompanied Children
● Garcia v. Barr (6th Circuit, 6/8/2020). The court held the IJ properly exercised
jurisdiction over the case of the petitioner, a Salvadoran who had entered the
United States 8 days before reaching the age of 18 years and found to be an
unaccompanied child (UAC) by an immigration official at the time of entry. (AILA
Doc. No. 20061811).
● Matter of M-A-C-O-, 27 I&N Dec. 477 (BIA 2018). The BIA held that an
immigration judge, rather than USCIS, has initial jurisdiction over an asylum
application filed by a respondent who, previously determined to be an
unaccompanied child, turns 18 before filing the application. (AILA Doc. No.
18101605).

Voluntary Return to Home Country

● Santamaria v. U.S. Att'y Gen. (11th Circuit, 4/22/2008). The court vacated its
January 11, 2008 decision (AILA library Doc. No. 08022164) and reissued
substantially the same decision. That is, the court removed the language,
"Courage does not negate fear", but continued to hold the Petitioner had a
subjective fear based on her credible testimony. Furthermore, the court refused
to endorse the principle that a voluntary return to one's home country always and
inherently negates completely a fear of persecution. (AILA Doc. No. 08070263).

Withholding and Orders of Removal

● Matter of I-S- & C-S-, 24 I&N Dec. 432 (BIA 2008). The BIA held that when an IJ
issues a decision granting an alien's application for withholding of removal,
without a grant of asylum, the decision must include an explicit order of removal.
(AILA Doc. No. 08011132).

Asylum Cases on Credibility

3/29/24 AILA Doc. No. 13010140. Asylum

This issue-specific page lists published asylum cases that relate to credibility
determinations. The page includes published federal court and BIA cases from 2008
through the present. Special thanks to AILA member R. Mark Frey.
● Ayala-Osegueda, et al. v. Garland (4th Circuit, 2/1/2024). The court first held an
IJ may make a partial or mixed adverse credibility determination provided
substantial evidence supports it, and that, in the instant case of a mixed
credibility finding, a presumption of credibility should be applied by the BIA on
appeal concerning the portion of testimony not explicitly determined incredible.
 As for the Salvadoran petitioners, the court determined the IJ properly made a
mixed finding about credibility, and there was no indication that the Board did not
apply a presumption of credibility to the testimony not deemed incredible. The
court next found the BIA did not err when it affirmed the IJ’s determination that
petitioners failed to establish a nexus between any past or feared future harm
and any familial relationship (i.e., their relative Guadalupe Osegueda, who broke
up with the [MS-13] gang’s leader, Francisco Javier Sarabia). Finally, the court
concluded the IJ’s factual determination that the petitioners had been threatened
for pecuniary gain alone was supported by substantial evidence. The court thus
upheld the denial of asylum and withholding of removal. (AILA Doc. No.
24020601).
● Singh v. Garland (7th Circuit, 1/2/2024). The court held the agency’s adverse
credibility finding was supported by substantial evidence. It further concluded the
BIA permissibly inferred that information missing from petitioner’s written
statement and physician’s report regarding the attack by members of one of
India’s political parties on petitioner showed he exaggerated the severity of his
injuries at the hearing. (AILA Doc. No. 24011706).
● Uulu v. Garland (7th Circuit, 9/1/2023). Although the court shared some of
petitioner’s concerns about the IJ’s review of his corroborating evidence, it held,
nonetheless, that his account of events leading to his flight from Kyrgyzstan
contained too many inconsistencies to warrant overturning the IJ’s adverse
credibility finding. (AILA Doc. No. 23092515).
● Pomavilla-Zaruma v. Garland (2nd Circuit, 8/30/2023). The court held an IJ may
not rely on a border interview to find an asylum applicant not credible without first
considering the factors set forth in Ramsameachire v. Ashcroft, provided the
record indicates those factors to be relevant. (AILA Doc. No. 23090704).
● Kolov v. Garland (6th Circuit, 8/18/2023). The court upheld the BIA’s and IJ’s
denial of withholding of removal and Convention Against Torture (CAT) protection
based on the finding that petitioner’s omissions in his testimony were
substantially related to his claims, thus rendering him not credible. (AILA Doc.
No. 23090504).
● Chen v. Garland (2nd Circuit, 7/25/2023). The court concluded that the IJ
misidentified part of the petitioner’s testimony as inconsistent, improperly relied
on trivial inconsistencies, and misconstrued a portion of the petitioner’s testimony
as an omission that, in fact, comported with his Form I-589 asylum statement.
(AILA Doc. No. 23081410).
● Cui v. Garland (7th Circuit, 6/16/2023). The court held the IJ, when denying
petitioner’s claim for asylum, did consider her testimony and evidence, but noted
several material inconsistencies and instances of evasive or untruthful testimony,
thus reasonably leading to a determination that her overall testimony lacked
credibility. (AILA Doc. No. 23062910).
● Zongo v. Garland (8th Circuit, 6/16/2023). The court held sufficient evidence
warranted the IJ’s adverse credibility determination. Petitioner, a citizen of
Burkina Faso, whose asylum claim was based on fears due to his political
opinions and affiliation with the Congress for Democracy and Progress, was not
credible according to the IJ who identified specific and cogent reasons to
disbelieve his testimony. As such, the BIA did not commit error when it affirmed
the IJ’s denial of both asylum and withholding of removal. As to the question of
relief under the Convention Against Torture (CAT), the court ruled it had no
jurisdiction since no arguments relating to CAT had been raised earlier before the
BIA. (AILA Doc. No. 23062900).
● Malets v. Garland (2nd Circuit, 4/14/2023). The court held the IJ’s adverse
credibility finding, based on purported inconsistencies in the petitioner’s
testimony and failure to submit corroborating evidence of his religious beliefs,
was unsupported by substantial evidence and the IJ’s refusal to allow the
 petitioner an opportunity to present readily available witness testimony, thereby
depriving him of a full and fair hearing. (AILA Doc. No. 23042404).
● Serra v. Att’y Gen. (11th Circuit, 2/15/2023). Granting the petition for review, the
court held two purported inconsistencies in the record were not supported by
reasonable, substantial, and probative evidence, and thus could not form the
basis for an adverse credibility determination with respect to the petitioner. (AILA
Doc. No. 23022201).
● Porosh v. Garland (7th Circuit, 1/5/2023). The court upheld the IJ’s adverse
credibility finding while noting that, although some of the IJ’s conclusions lacked
evidentiary support, the decision was on the whole supported by findings with a
reasonable basis in the record. (AILA Doc. No. 23011710).
● Hasan-Nayem v. Att’y Gen. (11th Circuit, 12/7/2022). The court found both the IJ
and BIA offered specific, cogent reasons for determining the Bangladeshi
petitioner’s testimony was not credible, concluding there was substantial
evidence to support the IJ’s demeanor determination. (AILA Doc. No. 22122792).
● H.H. v. Garland (1st Circuit, 10/21/2022). The court concluded that, by requiring a
showing of willful acceptance rather than willful blindness, the BIA applied the
incorrect standard of review when it upheld the IJ’s denial of Convention Against
Torture (CAT) relief to the Honduran petitioner. (AILA Doc. No. 22110400).
● Dong v. Garland (9th Circuit, 10/19/2022). The court found BIA’s affirmance of
the IJ’s adverse credibility determination was supported by substantial evidence,
when considering the totality of the administrative record, particularly with respect
to the IJ’s findings related to the petitioner’s demeanor and lack of candor. (AILA
Doc. No. 22110407).
● Cordero-Chavez v. Garland (5th Circuit, 10/4/2022). The court upheld the BIA’s
affirmance of the IJ’s adverse credibility finding, that is, the petitioner’s account of
the severity and frequency of her abuse had changed between her credible fear
interview and her hearing testimony. (AILA Doc. No. 22102514).
● Rivera-Medrano v. Garland (1st Circuit, 8/26/2022). The court held the BIA
committed error when it denied the petitioner's motion to remand by excluding
the petitioner’s new evidence—that is, a psychologist’s report explaining how her
post-traumatic stress disorder (PTSD) affected her ability to recount her abuse.
The court further found the psychologist’s report challenged the foundational
premise of the IJ’s adverse credibility finding – namely, the petitioner was not
credible because certain details of her hearing testimony were inconsistent with
other details in the credible fear (CFI) and reasonable fear interview (RFI) notes.
(AILA Doc. No. 22091905).
● Ndudzi v. Garland (5th Circuit, 7/22/2022). The court held the IJ’s adverse
credibility finding relied heavily on an unsupported conclusion - lacking specific
and cogent reasons derived from the record—that petitioner was not a credible
witness. (AILA Doc. No. 22080103).
● Barseghyan v. Garland (9th Circuit, 7/8/2022). The court granted the petition for
review of the Armenian petitioner’s denied asylum application, holding three of
the four inconsistencies cited by the BIA, while upholding the IJ’s adverse
credibility determination, were, in fact, not supported by the record. (AILA Doc.
No. 22080306).
● Matter of E-F-N-, 28 I&N Dec. 591 (BIA 2022). The BIA found an IJ may rely on
impeachment evidence as part of a credibility determination where the evidence
is probative and its admission is not fundamentally unfair, and the witness is able
to respond to that evidence. (AILA Doc. No. 22070504).
● Cabrera-Ruiz v. Garland (7th Circuit, 6/14/2022). The court held substantial
evidence supported the BIA’s affirmance of the IJ’s adverse credibility
determination. The petitioner, a Mexican national, claiming he would be killed by
a cartel in Mexico and police would not protect him, contradicted himself on
numerous occasions and made key omissions, thus undermining his credibility.
 The court found the evidence was insufficient to establish the petitioner feared
torture for double-crossing the cartel, the risk of future harm for being a “snitch”
was too speculative, and there was no evidence the petitioner’s gang tattoos
would cause him future trouble in Mexico when they presented no problem in the
past. (AILA Doc. No. 22062737).
● Reyes Pujols v. Garland (1st Circuit, 6/14/2022). The court found the BIA erred
when it upheld the IJ’s adverse credibility determination because the Dominican
petitioner’s testimony about his abuse was not inconsistent. (AILA Doc. No.
22062403).
● Nkenglefac v. Garland (5th Circuit, 5/18/2022). The court held the BIA erred by
affirming the IJ’s credibility determination that relied on petitioner’s CBP and
asylum credible fear interviews, none of which had been entered into the hearing
record [of the removal proceeding] or raised during the hearing. (AILA Doc. No.
22060634).
● Hernandez Garmendia v. Garland (3rd Circuit, 3/16/2022). The court held
substantial evidence supported the BIA’s affirmance of the IJ’s denial of asylum
based on a finding that petitioner’s testimony was not credible nor were his due
process rights violated during the removal proceedings. (AILA Doc. No.
22041102).
● Jama v. Garland Denying the petition for review, the court held the BIA correctly
determined the IJ’s decision included an alternative determination finding that the
petitioner’s claims for Convention Against Torture (CAT) relief would fail even if
his testimony were believed. The court, accordingly, rejected the petitioner’s
argument that the IJ’s credibility finding was central to the decision. (AILA Doc.
No. 22041407).
● Ruiz-Colmenares v. Garland (9th Circuit, 2/9/2022). Where the petitioner had
expressed, for the first time during his fourth removal proceeding, a fear of
returning to Mexico, the court held that substantial evidence supported the
adverse credibility determination made by both the IJ and BIA. Furthermore,
petitioner failed to carry his burden to succeed on his claim for deferral of
removal under the Convention Against Torture (CAT). (AILA Doc. No. 22030105).
● Bonilla v. Garland (1st Circuit, 1/12/2022). In view of unexplained irregularities in
the record, the court vacated the BIA’s denials of withholding of removal and
relief under the Convention Against Torture (CAT), and remanded to the agency
for further factfinding. (AILA Doc. No. 22013110).
● Singh v. Garland (5th Circuit, 12/17/2021). Despite misgivings about the IJ’s
reliance on inter-proceeding evidence under Matter of R-K-K-, the court held the
IJ’s adverse credibility finding was supported by substantial evidence, and the
petitioner’s due process claims lacked merit. (AILA Doc. No. 22011403).
● Villegas-Castro v. Garland (10th Circuit, 12/2/2021). The court remanded the
case to the BIA after holding it erred in (1) overturning the IJ’s grant of asylum,
(2) rejecting the IJ’s credibility findings without applying the clear-error standard,
and (3) sua sponte finding petitioner ineligible for withholding or deferral of
removal. (AILA Doc. No. 21120303).
● Mashilingi v. Garland (1st Circuit, 11/2/2021). The court upheld denial of the
petitioner’s asylum, finding substantial evidence supported both the IJ’s and BIA’s
adverse credibility determination; inconsistencies in petitioner's testimony were
cumulatively persuasive of a lack of credibility. (AILA Doc. No. 21110906).
● Lopez Troche v. Garland (1st Circuit, 10/18/2021). The court held the BIA’s
affirmance of the IJ’s adverse credibility finding could not be sustained and, thus,
vacated and remanded the BIA’s order affirming the denial of the Honduran
petitioner’s request for withholding of removal. (AILA Doc. No. 21102708).
● Li v. Garland (9th Circuit, 9/21/2021). Where the petitioner claimed she was
persecuted because of her membership in a house church unregistered with the
Chinese government, the court held the BIA appropriately relied on two
 inconsistencies when making its adverse credibility determination. (AILA Doc.
No. 21092932).
● Alam v. Garland (9th Circuit, 9/8/2021). The en banc court overruled prior circuit
precedents establishing and applying the single factor rule, which required the
court to sustain an adverse credibility determination by the BIA if one of the
agency’s identified grounds was supported by substantial evidence. (AILA Doc.
No. 21092008).
● Rodriguez-Ramirez v. Garland (9th Circuit, 9/1/2021). The court held that, when
making an adverse credibility determination, the IJ was allowed to accord
substantial weight to discrepancies associated with a threat by gang members
and a report the petitioner procured and submitted to the IJ. (AILA Doc. No.
21090805).
● Dai v. Garland (9th Circuit, 8/20/2021). On remand from the U.S. Supreme Court,
the court concluded that any fair reading of the BIA’s decisions in the case
indicated it did not find the petitioner’s case to be persuasive - thus ensuring its
findings of fact and conclusions were demonstrably reasonable. (AILA Doc. No.
21090101).
● Liang v. Garland (2nd Circuit, 8/19/2021). The court held substantial evidence
supported the BIA’s adverse credibility determination when finding the petitioner’s
failure to disclose until cross-examination, his alleged inclusion on a government
blacklist in China, undermined his credibility. (AILA Doc. No. 21083102).
● Omowole v. Garland (7th Circuit, 7/29/2021). The court found the two IJs’
adverse credibility findings, pertaining to petitioner and her ex-husband, were
supported by substantial evidence and upheld the their conclusions that
petitioner was removable based on her sham marriage and not entitled to asylum
or withholding of removal. (AILA Doc. No. 21080534).
● Singh v. Garland (2nd Circuit, 7/28/2021). The court found the IJ’s adverse
credibility finding, as to the petitioner’s claim involving political persecution, was
not supported by substantial evidence - concluding a trivial inconsistency by itself
did not justify the finding. (AILA Doc. No. 21080432).
● Lalayan v. Garland (9th Circuit, 7/13/2021). Upholding the denial of asylum to the
Armenian family petitioners, the court held substantial evidence supported the
adverse credibility findings as to the husband, based on implausibilities in the
record, and as to the wife, based on her evasive and non-responsive testimony.
(AILA Doc. No. 21072333).
● Coto-Albarenga v. Garland (8th Circuit, 7/12/2021). The court upheld the BIA’s
affirmance of the IJ’s denial of asylum, finding the IJ articulated specific, cogent
reasons for concluding the petitioner’s testimony was not credible, and those
reasons were supported by substantial evidence. (AILA Doc. No. 21071437).
● Garland v. Dai (6/1/2021). The U.S. Supreme Court held the Ninth Circuit’s rule
on when to treat noncitizens’ testimony as credible—namely, that in the absence
of an explicit adverse credibility determination by an IJ or the BIA, a reviewing
court must treat a noncitizen’s testimony as credible and true—could not be
reconciled with the terms of the INA. Instead, according to the Court, reviewing
courts must accept the agency’s findings of fact as “conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary” pursuant
to INA §242(b)(4)(B). (AILA Doc. No. 21060231).
● Cuesta-Rojas v. Garland (1st Circuit, 3/15/2021). The court vacated and
remanded the BIA’s decision affirming the IJ’s adverse credibility determination,
finding the discrepancies alleged to have occurred between the petitioner’s
interview and his hearing utterly failed to support the adverse credibility finding.
(AILA Doc. No. 21031737).
● Zaruma-Guaman v. Wilkinson (1st Circuit, 2/9/2021). The court held substantial
evidence supported the BIA’s decision affirming the IJ’s adverse credibility
determination - reasoning the discrepancies in the record warranted a finding that
 petitioner had testified untruthfully about his asylum claim. (AILA Doc. No.
21021837).
● Kaur v. Wilkinson (9th Circuit, 1/29/2021). The court held the petitioner’s credible
testimony about her attempted gang rape in India was sufficient to establish past
persecution, and, additionally, the BIA erred when it imposed evidentiary
requirements of ongoing injury or treatment beyond the attempted sexual assault.
(AILA Doc. No. 21021134).
● Matter of O-M-O-, 28 I&N Dec. 191 (BIA 2021). The BIA found that IJs may
determine a document to be fraudulent, without relying on forensic analysis or
other expert testimony, if it contains obvious defects or readily identifiable
hallmarks of fraud, and the party submitting the document is provided an
opportunity to explain the defects. (AILA Doc. No. 21010801).
● Celicourt v. Barr (1st Circuit, 11/17/2020). Upholding the BIA’s denial of asylum,
the court held the Haitian petitioner failed to establish a nexus between his 2017
attack and a protected ground - lacking any credible evidence the attack was
motivated by his political activity. (AILA Doc. No. 20113034).
● Mukulumbutu v. Barr (9th Circuit, 10/13/2020). The court held that substantial
evidence supported the denial of asylum to the petitioner (a native of the
Democratic Republic of Congo (DRC)), on adverse credibility grounds. (AILA
Doc. No. 20102741).
● Iman v. Barr (9th Circuit, 8/25/2020). The court held that substantial evidence
failed to support the adverse credibility determination made by both the IJ and
BIA. It found, instead, that in light of the totality of the circumstances, the
evidence compelled a conclusion the Somali petitioner’s testimony was indeed
credible. (AILA Doc. No. 20090339).
● Gao v. Barr (2nd Circuit, 7/28/2020). The court upheld the BIA’s asylum denial,
finding that petitioner, fearing religious persecution in China, failed to sufficiently
explain inconsistencies in his testimony, and the IJ’s adverse credibility
determination was supported by substantial evidence. (AILA Doc. No.
20080633).
● Santos-Alvarado v. Barr (5th Circuit, 7/21/2020). The court upheld the BIA’s
finding that the IJ’s adverse credibility determination was not clearly erroneous
under the totality of the circumstances, and thus found the Salvadoran petitioner
could not prevail on his due process claim. (AILA Doc. No. 20080733).
● Avelar-Oliva v. Barr (5th Circuit, 4/3/2020). The court upheld the adverse
credibility determination by rejecting the Salvadoran petitioner’s claim that IJs are
required to provide advance notice of specific corroborating evidence needed to
meet an asylum applicant’s burden of proof as well as an automatic continuance
to obtain it. (AILA Doc. No. 20041733).
● Garcia v. Barr (8th Circuit, 4/1/2020). The court held the BIA’s adverse credibility
findings were supported by specific, cogent reasons for disbelieving the
Salvadoran petitioner, given her failure to explain inconsistent and contradictory
facts in her testimony about her domestic relationship. (AILA Doc. No.
20041735).
● Luna-Romero v. Barr (6th Circuit, 2/11/2020). The court denied the petition for
review, concluding there were at least three valid evidentiary grounds for the
BIA’s decision to uphold the IJ’s adverse credibility finding involving a petitioner
from Argentina. (AILA Doc. No. 20021835).
● Matter of Y-I-M-, 27 I&N Dec. 724 (BIA 2019). The BIA ruled that if
inconsistencies in the record are obvious and previously identified by applicant or
DHS, an IJ is not personally required to specify them and solicit an explanation
before relying on them to make an adverse credibility finding. (AILA Doc. No.
19121232).
● Qiu v. Barr (9th Circuit, 12/11/2019). Granting the petition for review, the court
held that petitioner, who alleged that Chinese government officials had subjected
 her to a forced abortion, was entitled to notice and an opportunity to produce
corroborating evidence or explain why it was unavailable. (AILA Doc. No.
19121805).
● Dai v. Barr (9th Circuit, 10/22/2019). The court issued an order denying the
rehearing en banc of Dai v. Sessions, holding the court must accept as true the
testimony of an asylum applicant in the absence of an explicit adverse credibility
determination by the IJ or the BIA. (AILA Doc. No. 19102435).
● Loja-Paguay v. Barr (1st Circuit, 9/16/2019). The court held substantial evidence
supported the Board's affirmance of the asylum denial, finding the record
provided ample support for the IJ's conclusion that the petitioner's statements
were inconsistent and his explanation implausible. (AILA Doc. No. 19092001).
● Tian v. Barr (8th Circuit, 7/30/2019). The court granted the petition for review and
remanded for a new credibility determination while holding the IJ’s adverse
credibility finding failed to provide cogent reasons warranting disbelief of the
Chinese Christian petitioner. The court noted in particular, “First, the IJ relied on
personal beliefs and perceived common knowledge to reach unfounded adverse
conclusions regarding Tian’s faith. Second, the IJ gave no weight to translation
issues in the proceeding.” (AILA Doc. No. 19080607).
● Gurung v. Barr (2nd Circuit, 7/8/2019). The court vacated the removal order and
remanded, holding the BIA committed error by mistakenly construing two
discrepancies in the wording of the Nepali petitioner’s testimony as
inconsistencies, forming a basis in part for its adverse credibility finding. (AILA
Doc. No. 19071508).
● Ghotra v. Whitaker (5th Circuit, 1/4/2019). The court held the BIA did not commit
error when relying on inconsistencies between testimony, application, and
affidavits; nor did it err in concluding that corroborating documentary evidence
was reiterative, failing to resolve the inconsistencies within the main narrative.
(AILA Doc. No. 19020804).
● Saravia v. Att'y Gen. (3rd Circuit, 10/1/2018). The court held that by applying
Matter of L-A-C- to find petitioner failed to corroborate credible testimony for CAT
and withholding, IJ erred in not following Third Circuit requirements of notice and
opportunity for expected corroborating evidence. (AILA Doc. No. 18101534).
● Alvarenga-Flores v. Sessions (7th Circuit, 8/28/2018). The court held that
substantial evidence supported the IJ and BIA determinations that the petitioner's
inconsistent testimony warranted an adverse credibility finding on his asylum,
withholding, and CAT claims. (AILA Doc. No. 18101542).
● Gao v. Sessions (2nd Circuit, 5/25/2018). The court granted petitions for review,
after finding the IJs and BIA erred by substantially relying on the fact that
applicants for asylum and related relief testified during removal proceedings to
certain details not included in their initial applications. (AILA Doc. No. 18060833).
● Dai v. Sessions (9th Circuit, 3/8/2018). The court granted the petition for review
of a denial of asylum and withholding of removal, finding that since neither the IJ
nor the BIA made an explicit, adverse credibility determination, the court was
obliged to accept the petitioner's testimony as true. (AILA Doc. No. 18031938).
● Matter of J-C-H-F-, 27 I&N Dec. 211 (BIA 2018). The BIA dismissed the appeal,
stating that when considering a border or airport interview in making a credibility
determination, an IJ should assess the accuracy and reliability of the interview
based on the totality of the circumstances. (AILA Doc. No. 18022037).
● Manes v. Sessions (9th Circuit, 11/27/2017). The court denied the petition for
review, finding substantial evidence supported the IJ's adverse credibility
determination and subsequent rejection of the petitioner's claims for asylum,
withholding of removal, and protection under the Convention Against Torture.
(AILA Doc. No. 17122001).
● Kegeh v. Sessions (8th Circuit, 7/31/2017). The court denied the petition for
review, holding the IJ's adverse credibility finding was based on numerous
 inconsistencies between the petitioner's testimony and the record, the
implausibility of certain events, and a lack of corroborating evidence. (AILA Doc.
No. 17080209).
● Cojocari v. Sessions (7th Circuit, 7/11/2017). The court granted the petition for
review and remanded, holding that discrepancies in the petitioner's testimony
relied upon by the IJ were so trivial or illusory as to give the court no confidence
in her analysis nor in the BIA's decision based on that analysis. (AILA Doc. No.
17072161).
● Wang v. Sessions (9th Circuit, 7/3/2017). The court held substantial evidence
supported the IJ's adverse credibility determination based on anomalies in the
petitioner's supporting documentation, her vague testimony, and her failure to
submit sufficient reliable corroborating evidence. (AILA Doc. No. 17072460).
● Xian Jing v. Lynch (1st Circuit, 1/4/2017). The court held that substantial
evidence supported the adverse credibility determination, finding both the BIA
and IJ did not err when relying on the petitioner’s DHS Interview, during which he
failed to mention past persecution or fear of future persecution. (AILA Doc. No.
17011308).
● Marikasi v. Lynch (6th Circuit, 10/20/16). The court upheld the BIA’s denial of
asylum to the petitioner, a citizen of Zimbabwe, finding that important factual
inconsistencies between her asylum application and testimony supported an
adverse credibility determination. (AILA Doc. No. 16102660).
● Li v. Lynch (2nd Circuit, 10/5/2016). The court held that although the BIA erred in
finding the petitioner provided inconsistent testimony, its ultimate ruling was
supported by substantial evidence, and the same decision would be made on
remand. (AILA Doc. No. 16101209).
● Legal v. Lynch (1st Circuit, 9/23/2016). The court upheld the denial of the Haitian
petitioner’s asylum claim, finding substantial evidence supported the BIA’s
affirmance of the IJ’s finding that his testimony was not credible. (AILA Doc. No.
16092608).
● Chakhov v. Lynch (8th Circuit, 9/14/2016). The court held that the IJ identified,
and the BIA adopted, specific, cogent reasons for making an adverse credibility
determination that was supported by substantial evidence. The court also held
that the IJ had not erred when finding the petitioner failed to provide sufficient
corroborative evidence for his claims. (AILA Doc. No. 16091962).
● Jimenez v. Lynch (7th Circuit, 8/5/2016). The court held the BIA committed error
both when it failed to address the petitioner’s argument that the credible‐fear
interview notes were unreliable and thus an improper basis for making an
adverse credibility finding, and when it ignored material documentary evidence
corroborating her testimony. (AILA Doc. No. 16080960).
● Yuan v. Lynch (7th Circuit, 6/28/2016). The court granted the petition for review
while holding that the BIA’s adverse credibility finding was flawed, given that
several of the perceived inconsistencies were illusory with the actual
inconsistencies being either immaterial or trivial. (AILA Doc. No. 16070560).
● Wang v. Lynch (6th Circuit, 5/27/2016). The court upheld the IJ and BIA’s denials
of the petitioner’s asylum application, finding the petitioner failed to adequately
explain why his application was strikingly similar to several others or corroborate
his religious persecution claim. (AILA Doc. No. 16060106).
● Htun v. Lynch (10th Circuit, 4/8/2016). The court held the BIA did not abuse its
discretion when it found the petitioner, a Burmese citizen seeking relief based on
persecution for his political opinions, was not credible, and, furthermore, its
discretionary denial of his asylum was not arbitrary and capricious. (AILA Doc.
No. 16041230).
● Gutierrez-Rostran v. Lynch (7th Circuit, 1/13/2016). The court reversed the denial
of withholding of removal and remanded to the BIA, holding the petitioner
 presented pertinent, credible evidence that he faces a significant probability of
persecution should he be removed to Nicaragua. (AILA Doc. No. 16011430).
● Marouf v. Lynch (6th Circuit, 1/6/2016). The court held that the IJ and BIA's
adverse credibility determinations were not supported by substantial evidence,
and the petitioners credibly testified to being attacked and persecuted in the
West Bank by Muslims on the basis of their Christian religion. (AILA Doc. No.
16011167).
● Singh v. Lynch (8th Circuit, 10/14/2015). The court upheld the immigration
judge's adverse credibility determination, finding it was based on substantial
evidence in the record and supported by specific, cogent reasons outlined by the
IJ, while also upholding the BIA's rejection of the petitioner's ineffective
assistance of counsel claim. (AILA Doc. No. 15101469).
● Matter of R-K-K-, 26 I&N Dec. 658 (BIA 2015). Key similarities between
statements by asylum applicants in different proceedings may be considered by
an IJ in making an adverse credibility determination, provided certain procedural
steps are followed in order to ensure fairness. (AILA Doc. No. 15090804)
● Singh v. Lynch (9th Circuit, 9/21/2015). The court held that the REAL ID Act
permits the BIA and IJ to base their adverse credibility determinations exclusively
on background evidence in the record upon consideration of the "totality of the
circumstances" and all relevant factors. (AILA Doc. No. 15092208).
● Tawou v. Lynch (7th Circuit, 8/20/2015). The court upheld the BIA's denial of the
petitioner's asylum application, finding that he neither demonstrated that the IJ's
adverse credibility determination was erroneous nor produced any evidence
sufficient to corroborate his account of mistreatment in Cameroon. (AILA Doc.
No. 15082535).
● Cuatzo v. Lynch (1st Circuit, 8/5/2015). The court upheld the IJ and BIA's
adverse credibility finding that was based on substantial evidence, including
petitioner's prior inconsistent statements, and consequently denied his
applications for withholding of removal and CAT relief. (AILA Doc. No.
15081204).
● Mboowa v. Lynch (1st Circuit, 7/21/2015). The court vacated the BIA's denial of
the petitioner’s asylum claim and remanded for reconsideration of the IJs
credibility determination, finding purported omissions forming the basis of the
adverse credibility determination to be consistently present in the record. (AILA
Doc. No. 15072900).
● Matter of J-R-R-A-, 26 I&N Dec. 609 (BIA 2015). The BIA held that when an
asylum applicant has competency issues affecting his testimony’s reliability, the
Immigration Judge should, as a safeguard, generally accept his fear of harm as
subjectively genuine, based on that applicant’s perception of events. (AILA Doc.
No. 15061106).
● Liu v. Lynch (7th Circuit, 6/11/2015). The court remanded, holding that because
an applicant’s testimony alone may be sufficient to sustain an applicant’s burden
without corroboration under INA §208(b)(1)(B)(ii), the Immigration Judge’s flawed
credibility determination called for a reassessment of the petitioner’s credibility.
(AILA Doc. No. 15062430).
● Angov v. Holder (9th Circuit, 6/8/2015). The court amended its opinion, now
affirming the Immigration Judge and BIA’s discretionary decision to admit into
evidence a hearsay letter prepared by the State Department to find police
subpoenas submitted by the asylum petitioner were in fact fraudulent. (AILA Doc.
No. 15061103).
● Nadmid v. Holder (7th Circuit, 4/21/2015). The court remanded, holding that if an
IJ explicitly premises a demand for corroborating evidence on an adverse
credibility determination that is flawed, then a reassessment of credibility may
turn out to remove the need for corroboration. (AILA Doc. No. 15043007).
● Keirkhavash v. Holder (7th Circuit, 2/23/2015). The court found the IJ's denial of
petitioner's asylum claim supported by the evidence, as she admitted to making
false statements on her first asylum application and offered no documentary
evidence or other corroboration for her revised asylum request. (AILA Doc. No.
15041704).
● Guerrero v. Holder (8th Circuit, 1/29/2015). The court found the IJ and BIA
properly denied the applications for cancellation of removal and asylum,
distinguishing this case from Matter of Recinas, and finding that the petitioner
failed to establish eligibility for asylum. (AILA Doc. No. 15020564).
● Ilunga v. Holder (4th Circuit, 1/27/2015). The court held that the IJ’s rejection of
the petitioner’s asylum application, based largely on an adverse credibility
finding, was not supported by substantial evidence. (AILA Doc. No. 15013040).
● Ali v. Holder (8th Circuit, 1/8/2015). The court denied the petition to review the
asylum, withholding, and CAT denials, finding the Somali petitioner’s inconsistent
testimony and lack of corroborating evidence provided substantial evidence to
support the IJ’s adverse credibility determination. (AILA Doc. No. 15012244).
● Yang v. Holder (4th Circuit, 10/29/2014). The court vacated the BIA’s decision
and remanded, finding the IJ committed legal error by conflating adverse
credibility with fraud and willful misrepresentation and that the willful
representation ruling was not supported by substantial evidence. (AILA Doc. No.
14103141).
● Urgen v. Holder (2nd Circuit, 10/2/2014). The court vacated and remanded with
instructions to review the IJ’s adverse credibility finding, holding the BIA
erroneously required the petitioner, claiming he was a stateless Tibetan born in
Nepal, to prove his nationality through documentary evidence alone. (AILA Doc.
No. 14100843).
● Ahmed v. Holder (1st Circuit, 9/2/2014). The court denied the petition for review,
upholding the IJ and BIA’s adverse credibility determination against the Somali
petitioner who sought asylum while using various, inconsistent bases. (AILA Doc.
No. 14090550).
● Lee v. Holder (8th Circuit, 8/28/2014). The court held the BIA did not abuse its
discretion in denying the Burmese petitioner’s motion to remand and motion to
reopen, citing numerous inconsistencies in her asylum claim relating to harm
allegedly suffered in the Burmese army and in Thailand. (AILA Doc. No.
14090547).
● Lai v. Holder (9th Circuit, 8/25/2014). The court remanded, finding the BIA’s
adverse credibility determination was flawed when it relied on petitioner’s
omission until cross-examination of details concerning third parties, which were
not contradictory to his earlier testimony or application materials. (AILA Doc. No.
14082848).
● Jiang v. Holder (9th Circuit, 6/12/2014). The panel held the inconsistency
between the asylum declaration, in which petitioner recounted physical abuse
during detention, and her failure to testify about that abuse until she was
prompted, was sufficient to support the IJ’s adverse credibility determination.
(AILA Doc. No. 14061302).
● Zhi v. Holder (9th Circuit, 5/16/2014). The court held substantial evidence did not
support the IJ’s adverse credibility finding based on a discrepancy in dates in the
evidence, as other evidence corroborated the explanation that one of the
documents included an incorrect date due to a typographical error. (AILA Doc.
No. 14052740).
● Georgieva v. Holder (7th Circuit, 5/6/2014). The court denied the petition for
review, affirming the IJ’s adverse credibility determination and finding that the
petitioner could not provide evidence outside her testimony that she was
persecuted because she is Roma. (AILA Doc. No. 14051440).
● Garcia v. Holder (9th Circuit, 4/16/2014). The court held substantial evidence
supported the BIA’s adverse credibility determination based on petitioner’s
various lies to U.S. officials and to the district court judge, especially about her
identity and country of origin. (AILA Doc. No. 14041840).
● Jin v. Holder (9th Circuit, 4/14/2014). The petitioner was not credible under the
totality of the circumstances, including his non-responsive demeanor during
cross-examination and affirmative misrepresentations of his residency. (AILA
Doc. No. 14041550).
● Huang v. Holder (9th Circuit, 3/12/2014). The court held the evidence did not
compel the conclusion that the petitioner was credible, the IJ’s well-supported
demeanor finding was entitled to special deference, and the IJ appropriately
considered the record as a whole and the totality of the circumstances. (AILA
Doc. No. 14032149).
● Slyusar v. Holder (6th Circuit, 1/30/2014). The court denied the petition to review
the asylum denial, finding that under the REAL ID Act, inconsistencies the IJ
found in petitioner’s testimony were sufficient for an adverse credibility finding,
although they did not go to the heart of the asylum claim. (AILA Doc. No.
14020304).
● Li v. Holder (9th Circuit, 12/31/2013). The court denied the petition for review,
applying the maxim falsus in uno, falsus in omnibus to find that material
inconsistencies in testimony regarding one claim support an adverse credibility
determination on another claim in a pre-REAL ID Act case. (AILA Doc. No.
14010243).
● Zhang v. Holder (8th Circuit, 12/11/2013). The court granted the petition, finding
that the BIA erred by adopting the IJ’s adverse credibility finding that it was not
supported by substantial evidence and discrediting the petitioner’s claim of past
persecution in the form of a forced abortion in China. (AILA Doc. No. 13121745).
● Lin v. Holder (4th Circuit, 11/22/2013). The court declined to review the asylum
denial, upholding the BIA’s finding of inconsistencies in petitioner’s statements
regarding her marital status and forced abortion and noting the DOS report that
population controls are no longer strictly enforced in China. (AILA Doc. No.
13112643).
● Martinez v. Holder (1st Circuit, 11/4/2013). The court denied the application for
CAT relief and upheld the adverse credibility finding due to the Petitioner’s
inconsistencies in his submissions and testimony. (AILA Doc. No. 13110543).
● Bassene v. Holder (9th Circuit, 9/23/2013). The panel vacated the BIA’s adverse
credibility finding and remanded, finding the BIA erred by drawing an adverse
inference from the low level of persecution detail provided in the mistakenly filed
N-400, as well as with alleged inconsistencies with the I-589. (AILA Doc. No.
13092557).
● Boika v. Holder (7th Circuit, 8/16/2013). The court remanded, finding the BIA
abused its discretion when it did not consider the factually distinct claims of future
persecution in Belarus and rejected these claims based solely on the past
adverse credibility finding. (Courtesy of Alexander Segal). (AILA Doc. No.
13082750).
● Liu v. Holder (1st Circuit, 4/22/2013). The court upheld the IJ’s finding that Liu
lacked credibility, noting that the petitioner made several amendments to his
asylum application only after a change in law that would have affected his claim.
(AILA Doc. No. 13042665).
● Cui v. Holder (9th Cir., 4/10/2013). The court upheld the BIA’s denial of asylum to
the Chinese petitioner who asserted a fear of persecution on account of his
practice of Da Zang Gong, finding there was substantial evidence supporting the
IJ’s adverse credibility determination. (AILA Doc. No. 13041609).
● Wu v. U.S. Att’y Gen. (11th Circuit, 3/12/13). The court remanded the asylum
case, finding that the IJ’s “bald assertion” that the petitioner’s story is implausible
 could not support the adverse credibility determination and that the IJ relied too
heavily on the Country Profile. (AILA Doc. No. 13031449).
● Fofana v. Holder (8th Circuit, 1/29/2013). The court upheld the IJ’s adverse
credibility determination and denied asylum, withholding, and CAT relief, finding
that the IJ highlighted the inconsistencies and implausibilities in the applications,
testimony, and hearing exhibits. (AILA Doc. No. 13020152.)
● Chen v. Holder (1st Circuit, 12/21/2012). The court upheld the IJ’s conclusion that
the asylum applicants’ testimony was not credible, and rejected the argument
that the BIA improvidently fashioned its own factual findings in order to uphold
the adverse credibility determination. (AILA Doc. No. 12122849).
● R.K.N. v. Holder (8th Circuit,12/3/2012). The court found the BIA adequately
addressed the petitioner’s asylum claim, which was based on his HIV-positive
status, and upheld the IJ’s adverse credibility finding and decision to exclude
medical records. (AILA Doc. No. 12120762).
● Unpublished BIA Decision (9/27/2012). In an unpublished decision, the Board
reversed the IJ’s decision and granted asylum, noting that the IJ’s speculations
relating to the respondent’s motive for traveling to the U.S. were not supported by
the record. Courtesy of Robert W. DeKelaita. (AILA Doc. No. 12101544).
● Singh v. Holder (4th Circuit, 11/5/2012). The court denied withholding of removal
and CAT relief, upholding the IJ’s adverse credibility determination and rejecting
the petitioner’s argument that the IJ and BIA misapplied REAL ID’s credibility
provisions. (AILA Doc. No. 12110948).
● Oshodi v. Holder (9th Circuit, 5/3/2012). The court ordered that Oshodi v. Holder,
which discussed credibility determinations under the REAL ID Act, be reheard en
banc. (AILA Doc. No. 12050852).
● Jabri v. Holder, (1st Circuit, 3/16/2012). The court remanded the asylum case,
noting that the IJ did not present a reasoned analysis of the evidence as a whole,
and finding that the IJ relied on at least two perceived “inconsistencies” that were
not direct inconsistencies. (AILA Doc. No. 12031933).
● Guta-Tolossa v. Holder (1st Circuit, 3/16/2012). The court found that the BIA
failed to address two central issues in the Ethiopian asylum case and remanded
to the BIA to clarify questions relating to credibility and corroborating evidence.
(AILA Doc. No. 12031934).
● Oshodi v. Holder (9th Circuit, 1/26/2012). The court found that the BIA complied
with its remand mandate by considering the REAL ID Act’s impact on the
immigration judge’s finding that the petitioner’s claims were not sufficiently
corroborated for his request for CAT relief. (AILA Doc. No. 12012768).
● Abdurakhmanov v. Holder (6th Circuit, 1/23/2012, amended 3/1/2012). The court
found there was substantial evidence the petitioner lacked credibility in one key
part of his asylum testimony, though it noted the BIA’s decision erred in other
findings regarding credibility. (AILA Doc. No. 12012340)
● Djadjou v. Holder (4th Circuit, 12/5/2011). Over dissent, the court upheld the
adverse credibility finding based on the inconsistency arising from Petitioner’s
eviction notice suggesting she was not in hiding as she claimed and the omission
in her application of her role in the SCNC. (AILA Doc. No. 11120773).
● Sea v. Holder (6th Circuit, 11/8/2011). The court found that a translation error in a
medical document corroborating Petitioner’s injuries contributed significantly to
the IJ’s adverse credibility finding, and stayed the appeal so that Petitioner could
present the error to the BIA. (AILA Doc. No. 11110943).
● Stanciu v. Holder (1st Circuit, 10/25/2011). The court found although the
mistreatment described by petitioner was plausible, and the tensions in his
testimony could be resolved either way, the IJ’s unwillingness to accept the key
testimony had some basis in the record. (AILA Doc. No. 11102860).
● Carrizo v. U.S. Att’y Gen. (11th Circuit, 8/31/2011). The court upheld the adverse
credibility finding where petitioner claimed to be present at a rally where his
 mother was killed but presented no evidence that he was politically active, at the
rally, or detained and beaten after. (AILA Doc. No. 11090632).
● Dehonzai v. Holder (1st Circuit, 5/23/2011). Over dissent, the court denied the
petition, noting that Petitioner used nearly identical language to describe his
mistreatment as that used in an Amnesty International report, and where his
testimony was inconsistent and uncorroborated. (AILA Doc. No. 11052465).
● Singh v. Holder (9th Circuit, 5/3/2011). The court found that where the IJ has
reason in the record to doubt credibility, an absence of evidence may suffice to
reject credibility where the need for the evidence is plain and the evidence is
reasonably accessible. (AILA Doc. No. 11050430).
● Zamanov v. Holder (9th Circuit, 4/29/2011). The court held that the inclusion of
three additional incidents of arrest and mistreatment that were added to
Petitioner’s claim in a supplemental declaration materially altered his claim in a
way that casted doubt on his credibility. (AILA Doc. No. 11050260).
● Singh v. Holder (9th Circuit, 3/25/2011). The court held that a deception unrelated
to escaping immediate danger or gaining entry into the United States can form
the basis for an adverse credibility determination, even if it turns out to be
irrelevant to the claim. (AILA Doc. No. 11032962).
● Liu v. Holder (9th Circuit, 2/23/2011). The court upheld the IJ’s adverse credibility
determination as supported by substantial evidence, but found that the
heightened requirements for determining that Petitioner’s application for asylum
was frivolous were not met. (AILA Doc. No. 11022471).
● Li v. Holder (9th Circuit, 1/19/2011). The court reversed the adverse credibility
finding as improperly based on the IJ’s perception of Petitioner’s ignorance of
Christian doctrine, misstatements that did not go to the heart of the claim, and
insufficient evidence of evasiveness. (AILA Doc. No. 11012163).
● Rizk v. Holder (9th Circuit, 1/3/2011). In a case involving separate claims of a
couple from Egypt, the court upheld the IJ’s adverse credibility determination as
to the husband, but remanded the wife’s claim where the BIA failed to address
the IJ’s findings as to her testimony. (AILA Doc. No. 11010465).
● Sihombing v. Holder (1st Circuit, 9/22/2009). The court affirmed the adverse
credibility determination and held that regardless of indiscernible sections of the
proceedings transcript, the record was sufficient for review and the Petitioner was
not prejudiced. (AILA Doc. No. 09092885).
● Zheng v. Holder (1st Circuit, 8/27/2009). The court denied the petition for review,
finding the immigration judge's adverse credibility finding was supported by
substantial evidence and the Petitioner failed to provide corroborating evidence
to clear up inconsistencies. (AILA Doc. No. 09092877).
● Matovu v. Holder (1st Circuit, 8/20/2009). The court affirmed the BIA's denial of
asylum, withholding, and CAT, finding Petitioner's evidence was inconsistent,
vague, and lacked corroboration. (AILA Doc. No. 09092965).
● Shan Sheng Zhao v. Mukasey (6th Circuit, 1/16/2009). The court held the IJ’s
adverse credibility determination was supported by substantial evidence, and
denial of withholding of removal was warranted where credibility of applicant had
not been established. (Shan Sheng Zhao v. Mukasey, 1/16/09). (AILA Doc. No.
09031373
● Muñoz-Monsalve v. Mukasey (1st Circuit, 12/12/2008). The court rejected the
petitioner's claims that the IJ erred in failing to initiate a competency hearing and
that the BIA incorrectly affirmed the adverse credibility finding. (AILA Doc. No.
09022769).
● Zuh v. Mukasey (4th Circuit, 11/25/2008). In this case involving the issue of
credibility, the court set forth a list of non-exhaustive factors that IJs should
consider when determining if an individual merits asylum as a matter of
discretion. (AILA Doc. No. 08120963).
● Sow v. Mukasey (8th Circuit, 11/19/2008). The court held that significant
discrepancies in the record and lack of evidence supported IJ's adverse
credibility determination. It upheld, as well, the IJ's determination that improved
conditions in Mauritania rebutted any presumption of a well-founded fear based
on past harm. (AILA Doc. No. 08120965).
● Kaba v. Mukasey (6th Circuit, 11/13/2008). The court noted that while a
petitioner's failure to include every detail in an asylum application should not be
fatal to an asylum claim, blatant overstatement of the dangers in the Ivory Coast
was sufficient to support a negative credibility determination. (AILA Doc. No.
08120964).
● Balachova v. Mukasey (2nd Circuit, 11/12/2008). The court remanded the case
since it could not determine the basis for the adverse credibility determination.
The court also held that substantial evidence did not support the persecutor bar.
(AILA Doc. No. 08120863).
● Mohammed v. U.S. Att'y Gen. (11th Circuit, 11/5/2008). The court held that the
record did not compel a finding of past persecution because there was
substantial evidence supporting the IJ and BIA's adverse credibility finding. (AILA
Doc. No. 08120868).
● Xiao v. Mukasey (7th Circuit, 10/27/2008). The court found the credible fear
interviews reliable because a translator was present. Although the petitioner
claimed she failed to mention the forced abortion out of a sense of shame, the
court found her explanation did not overcome the level of deference due. (AILA
Doc. No. 08112466).
● Bebri v. Mukasey (1st Circuit, 10/17/2008). The court found the cumulative effect
of inconsistencies regarding the petitioner's beating and his lack of knowledge
about Albanian politics were sufficient to support the IJ's negative credibility
finding. (AILA Doc. No. 08110471).
● Musollari v. Mukasey (7th Circuit, 9/19/2008). The court held that notwithstanding
the IJ's mistakes, the balance of the evidence supported his adverse credibility
finding. (AILA Doc. No. 08102765).
● Koulibaly v. Mukasey (6th Circuit, 9/4/2008). The court held that substantial
evidence did not support the BIA's adverse credibility finding because it was
based on an Asylum Officer's (AO's) Assessment to Refer which lacked standard
indicia of reliability. (AILA Doc. No. 08102762).
● Sankoh v. Mukasey (7th Circuit, 8/13/2008). The court rejected the petitioner's
arguments that 1) the IJ erred in refusing to admit country reports, 2) the BIA
erred by taking administrative notice of a 1993 country report, and 3) the IJ
exhibited bias. (AILA Doc. No. 08100665).
● Lin v. Mukasey (2nd Circuit, 7/21/2008). The court found that its prior holding in
Secaida-Rosales, an IJ may not base credibility on collateral inconsistencies and
omissions, was abrogated by the REAL ID Act and that henceforth an IJ may rely
on any inconsistency or omission. (AILA Doc. No. 08091661).
● Loho v. Mukasey (9th Circuit, 7/8/2008). Noting that an asylum applicant's history
of returns to the home country militates against a finding of past persecution or a
well-founded fear, the court found that the petitioner's two voluntary returns to
Indonesia supported the IJ's adverse credibility finding. (AILA Doc. No.
08082270).
● Mousa v. Mukasey (9th Circuit, 6/27/2008). The court rejected the IJ's bases for
his negative credibility determination: unlikelihood of withstanding the pressure of
the Ba'ath party, failure to mention her rape in her asylum application, and failure
to explain the consequences of her leg infection. The Petitioner's testimony was
therefore held to be credible. The court further found the government failed to
meet its burden of proving changed country conditions. (AILA Doc. No.
08073064).
● Morgan v. Mukasey (9th Circuit, 6/25/2008). The court held that substantial
evidence did not support the IJ's adverse credibility finding because the
components of that determination were neither substantial nor went to the heart
of the Petitioner's asylum claim. (AILA Doc. No. 08080161).
● Li v. Mukasey (2nd Circuit, 6/13/2008). The court remanded the case in light of its
recent decisions holding that certain inquiries or findings are necessary before
the agency can find that vague or unauthenticated evidence is not credible. (AILA
Doc. No. 08072868).
● Mitondo v. Mukasey (7th Circuit, 4/24/2008). The court noted, under the REAL ID
Act, that liars tend to give fewer details in most claims which are neither
confirmed nor refuted by documentary evidence; concluding that the IJ's
determination was supported by substantial evidence. (AILA Doc. No.
08052173).
● Ly v. Mukasey (1st Circuit, 4/24/2008). The court found the IJ's adverse credibility
determination was not supported by the record and the Petitioner had in fact
suffered past persecution, but nonetheless agreed with the IJ that country reports
suggested conditions had changed in Cambodia. (AILA Doc. No. 08052163).
● Chatta v. Mukasey (7th Circuit, 4/21/2008). The court found material
inconsistencies between the Petitioner's airport statement and testimony at his
asylum hearing. The record contained the transcript of that airport interview. The
airport immigration official asked the Petitioner at least five times about his fear of
returning to Pakistan. He acknowledged that he understood the translator during
that interview, and admitted the accuracy of the transcripts during his asylum
hearing testimony. Given other evidence that weighed on Petitioner's credibility,
reliance on the airport interview was reasonable. (AILA Doc. No. 08052172).
● Osonowo v. Mukasey (8th Circuit, 4/7/2008). The court found the IJ offered an
adequate explanation for the adverse credibility assessment, and thus upheld the
IJ's finding that the Petitioner failed to make an effort to obtain even the most
basic corroborating information, such as proof of his Ogoni ethnicity. (AILA Doc.
No. 08070365).
● Kaita v. Att'y Gen. of the U.S. (3rd Circuit, 4/3/2008). The court reversed the IJ's
adverse credibility determination finding the Petitioner's omissions regarding
dates did not go to the heart of her claim and the few noted inconsistencies were
the result of translation problems or the IJ's interruptions. (AILA Doc. No.
08050764).
● Cuko v. Mukasey (1st Cir. 3/31/2008). The court upheld the adverse credibility
finding where discrepancies were clearly present and went to the heart of the
Petitioner's claim. The dissent faulted the court for condoning a policy of
blindsiding applicants with adverse credibility findings. (AILA Doc. No.
08050763).
● Lin v. Mukasey (1st Cir. 3/26/2008). The court found internal inconsistencies in
Petitioner's testimony and rejected his contention that the contradictions were
minor. The REAL ID Act overhauled the methodology to be used by the trier of
fact in making credibility determinations in asylum and withholding cases. The
new language allows consideration of inconsistencies without regard to whether
they go to the heart of the applicant's claim. (AILA Doc. No. 08050762).
● Huang v. Mukasey (9th Cir. 3/24/2008). The court held that the IJ erred by failing
to make a credibility finding, noting that instances where the IJ has conflated an
adverse credibility finding with an adverse decision on the merits have been
appearing before the court with increasing frequency. (AILA Doc. No. 08070364).
● Ismaiel v. Mukasey (10th Cir. 2/22/2008). The court found that, if the torture the
Petitioner described actually occurred, it would defy common sense to omit
mention of it in his application and supplemental letters, especially given the fact
he had assistance of counsel. (AILA Doc. No. 08040263).
 ● Zine v. Mukasey (8th Cir. 2/19/2008). The court found it lacked jurisdiction to
review the timeliness of the Petitioner's asylum claim, affirmed the IJ's denial of
withholding based on lack of credibility, and held he was ineligible to adjust
based on his VWP entry. (AILA Doc. No. 08040268).
● Teng v. Mukasey (1st Cir. 2/14/2008). While the IJ arguably overstated the
number and importance of the inconsistencies, the court held that the IJ had a
rational basis for her adverse credibility finding. (AILA Doc. No. 08040265).
● Zaman v. Mukasey (2nd Cir. 1/23/2008). The court found that the IJ's
determination that the Petitioner's Pakistani Peoples Party card was invalid was a
proper basis for discrediting his testimony. (AILA Doc. No. 08022767).
● Kalouma v. Gonzales (9th Cir. 1/15/2008). In response to a petition for rehearing
by the government, the court amended its 8/28/2007 decision (AILA Doc. No.
07101260) with a few additional paragraphs of analysis. The court rejected the
government's reliance on Farah v. Ashcroft. (AILA Doc. No. 08030762).

Great Decision on Jurisdiction, Withholding, and CAT Out of…the Fifth Circuit?!
Last UpdatedJanuary 29, 2024
TopicsRemoval Proceedings
The Fifth Circuit reversed its previous decision denying a petition for review and instead
found that the 30-day filing deadline following withholding proceedings runs from the
BIA’s final order at the conclusion of those proceedings. Argueta-Hernandez v. Garland,
87 F.4th 698 (2023). The Fifth Circuit also found that where a respondent does not file a
timely petition, the court’s jurisdiction to consider the petition is not stripped. In regards
to the merits of the respondent’s claims, the court found the following: physical harm is
not required for a persecution finding; the existence of multiple motivations for
persecution does not defeat a claim; and the BIA had ignored crucial evidence in
denying the respondent’s CAT claim.

Summary of Facts and Procedural History

Mr. Argueta-Herandez, a citizen of El Salvador, entered the United States without
inspection, was ordered removed, and later re-entered. Following his re-entry, the
Department of Homeland Security (DHS) reinstated his removal order. Later, during a
reasonable fear interview, Mr. Argueta Hernandez stated that in El Salvador, members
of the MS-13 gang had done the following: repeatedly threatened his life and the lives of
his family; stalked and surveilled them; and attempted to kill his son. Mr.
Argueta-Hernandez also testified that four Salvadoran government agencies said his life
was in danger and that they could not protect him. He stated that the gang’s threats
occurred after he refused to pay them money or be complicit in their activities. He also
testified that he was the President of Evangelism in his church and that Salvadoran
officials told him that he was targeted due to his being a Christian. After the asylum
officer found that Mr. Argueta-Hernandez had a credible and reasonable fear of torture
in El Salvador, DHS initiated withholding-only proceedings.

During his proceedings, Mr. Argueta-Hernandez supplemented his evidence with

Department of State reports detailing gang threats to religious individuals and expert
analysis finding an extremely high likelihood of his torture or death. He also provided
testimony that El Salvador’s prosecutor’s office said there was nothing it could do for
him except provide a document certifying that he could not stay in El Salvador. The
Salvadoran police asked Mr. Argueta-Hernandez to sign a document waiving its liability
were MS-13 to find and torture him. After a three-week detainment by the anti-gang unit
in El Salvador, the police put him in a taxi that drove him to the Guatemalan border.

Despite all this evidence, however, the IJ ruled that the Salvadoran government was
willing and able to protect Mr. Argueta-Hernandez. It also found that he had been
threatened not solely because of his religion, but also because of his reputation as a
good person. As a result, on September 23, 2021, the IJ ordered Mr.
Argueta-Hernandez removed and denied his applications for withholding of removal and
deferral of removal under CAT. The BIA affirmed the IJ’s decision on April 27, 2022.

Mr. Argueta-Hernandez filed a petition for review to the Fifth Circuit on May 27, 2022,
within 30 days of the BIA’s order denying him withholding of removal and CAT relief.
The appellate court initially denied his petition for lack of jurisdiction, but later reversed
its finding. The court granted his petition for rehearing in order to address the court’s
jurisdiction and Mr. Argueta-Hernandez’s substantive claims.

Analysis and Holding

Jurisdiction

Before discussing the merits of the case, the Fifth Circuit analyzed whether it had
jurisdiction to consider the case under INA §§ 242(a)(1) and (b)(1). Those sections
govern judicial review of final orders of removal and provide that the deadline for filing a
petition for review is 30 days following the final order of removal. Circuit courts have
long interpreted Stone v. INS, 514 U.S. 386 (1995), to mean that failing to file a petition
for review within those 30 days would strip the circuit court of its jurisdiction to consider
the petition. In this case, however, the Fifth Circuit joined the Ninth Circuit, which
recently found that the Supreme Court’s decision in Santos-Zacaria, 598 U.S. 411
(2023), which held that the exhaustion requirement in INA § 242(d)(1) was not
jurisdictional, meant that the filing requirement at INA § 242(b)(1) is also not
jurisdictional. This meant that the Fifth Circuit could consider a late-filed petition for
review. 1

The Fifth Circuit then decided whether the BIA’s order affirming the IJ’s order reinstating
the respondent’s previous removal order at the conclusion of his withholding-only
proceedings was “final” for the purposes of calculating the 30-day deadline. The court
noted that the Supreme Court in two cases — Nasrallah v. Barr, 140 S. Ct. 1683 (2020),
and Johnson v. Guzman Chavez, 141 S. Ct. 2271 (2021) — where it found that orders
on CAT and withholding do not affect the final underlying removal orders, was not
considering the finality of such orders for the purposes of judicial review under INA §
242 and therefore did not overrule previous Fifth Circuit precedent. The Fifth Circuit
followed that precedent and found that, for the purposes of judicial review, reinstatement
orders are only considered final for the purposes of INA § 242(b)(1) upon the
completion of withholding-only proceedings. In doing so, the court reasoned that “[i]t
cannot be the case that a petitioner may only seek review before reinstatement of a
removal order, and without a full administrative record.” Argueta-Hernandez, at 8.

Withholding

The Fifth Circuit turned next to Mr. Argueta-Hernandez’s withholding claim and found
that he had suffered past persecution. The BIA had determined that the harm Mr.
Argueta-Hernandez had suffered – a number of phone threats, surveillance, and a gang
hitman following and shooting at his son – was not enough to rise to the level of
persecution. It noted that Mr. Argueta-Hernandez had suffered no physical harm, and
the attempt on his son’s life had been “non-threatening.” In contrast, the Fifth Circuit
focused on the fact that Mr. Argueta-Hernandez had received repeated death threats –
“threats so credible that numerous Salvadoran officials told Argueta-Hernandez to flee
the country.” Argueta-Hernandez at 12.

The court noted that the phone threats Mr. Argueta-Hernandez received were
persistent, followed by in-person threats and a direct attempt on his son’s life by a
known assassin. The gang subsequently confirmed that they had tried and would
continue to try killing his son. The Fifth Circuit found that the BIA had disregarded all of
this evidence of persecution, even though it did not dispute the IJ’s accepting Mr.
Argueta-Hernandez’s account as credible.2 Because Mr. Argueta-Hernandez had
proved past persecution and the government had not shown any fundamental change in
conditions or that he could relocate, the court found a likelihood of future persecution.

The court then disagreed with the BIA’s analysis of nexus. The BIA had stated that the
threats, including both extortion and threats of death, were motivated by “criminal intent,
personal vendettas, or monetary gain,” and that because Mr. Argueta-Hernandez had
failed to show that “he was not allowed to preach or otherwise exercise his religious
rights,” he did not show nexus to a protected ground. The Fifth Circuit disagreed and
found that the BIA incorrectly applied an “either-or” analysis. The court stated that
although some threats followed Mr. Argueta-Hernandez’s refusal to pay money to and
collaborate with the gang, subsequent threats were motivated by his religion and status
in the church. The court cited direct statements from Mr. Argueta-Hernandez’s
persecutors where they said they were targeting him because he was a Christian and
“good with God.” The court also cited reports that indicated prevalent threats against
religious individuals and an extremely high likelihood of torture or death to Mr.
Argueta-Hernandez, as well as his own statement that he was only targeted after he
became the President of Evangelism. The fact that Mr. Argueta-Hernandez had a
reputation in the community for being a good person and businessman did not
contradict the words and actions of his persecutors, which showed that his religion was
one central reason for his persecution.3

Convention Against Torture

The Fifth Circuit then turned to Mr. Argueta-Hernandez’s CAT claims. The court agreed
with Mr. Argueta-Hernandez and found that the BIA and IJ had ignored critical evidence
that supported granting CAT protection. The BIA had found that the Salvadoran
authorities’ accommodation of Mr. Argueta-Hernandez at an anti-gang safe house and
facilitation of his departure from El Salvador did not show that Salvadoran officials
would turn a blind eye to Mr. Argueta-Hernandez’s future torture by gang members. The
Fifth Circuit, however, pointed to additional evidence the BIA had ignored. This included
the following: governmental agencies telling Mr. Argueta-Hernandez that they cannot
protect him or his family; that nowhere in El Salvador would be safe for him; that all the
police could do for him was have him sign a document certifying that “he could not stay
in El Salvador”; that MS-13 “will kill” him; and that he should sign a document waiving
liability of the government should he stay in El Salvador. The court said this evidence
was distinguishable from the circuit’s precedent, in which previous petitioners had not
alleged that the government intended to acquiesce to their torture or that they even
reported attacks to the government. In contrast, government officials to whom Mr.
Argueta-Hernandez reported the incidents had told him that he would be killed if he
stayed and tried to obtain a waiver of liability in the event it happened.

Conclusion
This is a welcome decision from the Fifth Circuit, which is one of the most conservative
courts of appeals. Although the decision does not set forth specific tolling arguments or
equitable standards for late-filed petitions for review, the court’s joining the Ninth Circuit
in reversing years of precedent is nevertheless a monumental change. Practitioners in
all circuits, but especially the Fifth and Ninth, are encouraged to screen potential clients’
cases where they filed an untimely petition for review and consider advancing creative
arguments for the tolling of the 30-day deadline.4 Practitioners in the Fifth Circuit may
now cite case law holding that the deadline for filing a petition for review does not run
until after the conclusion of any withholding or CAT proceedings, which includes the
appeal to the BIA.

This decision is also replete with helpful quotations that acknowledge years of
precedent in the areas of withholding and CAT: physical harm is not required to
establish persecution; a protected ground need not be the sole motivation for that
persecution; and adjudicators cannot cherry-pick certain pieces of evidence and ignore
other critical evidence that supports the grant of an application. Both the IJ and BIA
were egregiously wrong in their analyses and conclusions. Were it not for the Fifth
Circuit’s reversal on the jurisdictional question, Mr. Argueta-Hernandez would not have
received the decision his case merited. Practitioners should thus be encouraged to keep
fighting zealously for their clients and take all necessary appeals.

1 The Fifth Circuit did not discuss whether any tolling requirements must be met or
outline any equitable standards for determining whether consideration of a late-filed
petition is appropriate.

2 The court also found that the BIA had committed legal error by requiring proof of
motive to establish persecution.

3 The Fifth Circuit also found that the BIA had failed to consider one of Mr.
Argueta-Hernandez’s proposed particular social groups, “Salvadoran informants against
gang members.”

4 A sample fair tolling argument in the context of motions to reopen removal

proceedings can be found at CLINIC’s website. See CLINIC, Sample Equitable Tolling
Argument for Motion to Reopen Removal Proceedings for DACA Recipients, Oct. 7,
2020