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On June 7, 2022, the Fifth Circuit Court of Appeals published a precedent decision in which it determined that:

1. The prison mailbox rule (i.e. that an inmate’s filing is timely if it is deposited in the institution’s internal mail system on or before the last day for filing and it contains a compliant certificate of service or evidence showing the date it was deposited and that the postage was prepaid) applies to pro se detainees in immigration proceedings; and
2. a restitution order can be used to show the amount of loss to the victim in the absence of any contrary record evidence for the purpose of classifying an offense as an aggravated felony under section 101(a)(43)(M)(i) of the Immigration and Nationality Act, as amended. 

On June 3, 2022, the Fifth Circuit Court of Appeal published a precedent decision concluding that:

1. To justify an asylum claim where private actors are the alleged persecutors, the asylum applicant must show that the government condoned the private violence or at least demonstrated a complete helplessness to protect the asylum applicant.
2. Despite the fact that Attorney General Merrick B. Garland, on June 16, 2021, vacated previous attorney general decisions in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) (now known as “A-B- I”) and Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021) (now known as “A-B- II”), interpreting the “unable to control” standard to mean “complete helplessness” (as stated in A-B- I) accurately reflects the law of the fifth circuit.  See Shehu v. Gonzales, 443 F.3d 435, at 437 (5th Cir. 2006) (government must condone persecution or “demonstrate complete helplessness”); Gonzales-Veliz v. Barr, 938 F.3d 219, at 233 (5th Cir. 2019) (quoting Matter of A-B-, 27 I. & N. Dec. 316, 337 (A.G. 2018) (A-B- I), vacated by Matter of A-B-, 28 I. & N. Dec. 307 (A.G. 2021) (AB- III). 

On May 24, 2022, the Fifth Circuit Court of Appeal published a precedent decision concluding that:

1. An issue raised for the first time in a motion for reconsideration that could have been raised earlier has not been properly presented to the Board of Immigration Appeals ("BIA") and therefore does not satisfy the exhaustion requirement under section 242(d) of the Immigration and Nationality Act, as amended ("the Act").
2. An Immigration Judge is authorized to interrogate, examine, and cross-examine an applicant pursuant to section 240(b)(1) of the Act, in spite of expressions of impatience, dissatisfaction, annoyance and even anger, so long as any such expressions are not due to extrajudicial sources or the Immigration Judge shows a deep-seated favoritism or antagonism that would make fair judgment impossible.
3. In light of the totality of the circumstances, an Immigration Judge may rely on any inconsistency or omission to make an adverse credibility determination, even if they do not go to the heart of an applicant’s claim, and neither an Immigration Judge nor the BIA is required to accept an applicant’s explanation for the inconsistencies.
4. For the purpose of distinguishing a motion to reconsider from a motion to reopen, the appellate court will look to the motion’s substance, not its label.

On May 12, 2022, the Fifth Circuit Court of Appeal published a precedent decision in which it determined that:

1. an appellate court retains jurisdiction under section 242(a)(2)(D) of the Immigration and Nationality Act, as amended ("the Act") to review, as a question of law, the BIA’s decision not to waive the one-year limitation for filing a motion to reopen pursuant to section 240(c)(7)(C)(iv)(III) of the Act ("Special Rule for Battered Spouses, Children and Parents");
2. under the highly deferential abuse of discretion standard of review applied to motions to reopen, as articulated in Mejia v. Whitaker, 913 F.3d 482, at 488 (5th Cir. 2019), the BIA’s determination that the Petitioner failed to demonstrate extraordinary circumstances or extreme hardship to one or more of his children in order to waive the section 240(c)(7)(C)(iv)(III) of the Act one-year filing deadline was not “capricious, without foundation in the evidence,” or “irrational.”  Mejia v. Whitaker, at 487 (quoting Gomez-Palacios v. Holder, 560 F.3d 354, at 358 (5th Cir. 2009)); and
3. an appellate court lacks jurisdiction to review the BIA’s decision to deny a motion to reopen that is based on a request for a favorable sua sponte exercise of discretion.

According to the National Federation of State High School Associations ("NFHS") baseball Rule 8-4-2m, any runner is out when the runner “passes an unobstructed preceding runner before such runner is out.”

NFHS Baseball Rule 8-2-4 provides that “If a fair or foul batted ball is caught . . . each base runner shall touch his base after the batted ball has touched a fielder . . ..”

Authority to continue or adjourn immigration court proceedings appears twice in immigration regulations:

• 8 C.F.R. § 1003.29 – “The Immigration Judge may grant a motion for continuance for good cause shown.”
• 8 C.F.R. § 1240.6 - “After commencement of the hearing, the immigration judge may grant a reasonable adjournment either at his or her instance or, for good cause shown, upon application by the respondent or the Service.”

In general, the art of cross examination is the art of evoking testimony that commits a witness to a specific set of facts or to a specific opinion, and then confronting the witness with established facts or previous statements or opinions that are inconsistent with the contemporaneous testimony of the witness.

Claims raised and lost before the Board of Immigration Appeals (“BIA”), without creating any new issue, have been exhausted within the meaning of section 242(d)(1) of the Act, thereby conferring jurisdiction for appellate court review.

Human beings seem to be wired or conditioned to readily believe bad news.  It is common to hear people say: “That’s too good to be true.”  However, I have never heard anybody say: “That’s too bad to be true.” 

Based on a stipulation of settlement filed February 9, 2022, the Board of Immigration Appeals (“BIA”) has agreed to provide access to its unpublished decisions in an electronic reading room (i.e. a website formatted for public inspection pursuant to 5 U.S.C. § 552(a)(2)(A)).  See document 72 filed in New York Legal Assistance Group v. The Board of Immigration Review and the Department of Justice (U.S. District Court, Southern District of New York) Case No. 18 Civ. 9495 (PAC).

This news might strike some as too good to be true, but nevertheless it apparently is true.

To view the complete settlement agreement copy and paste the following link in your internet browser: https://www.citizen.org/wp-content/uploads/72-Signed-stipulation.pdf?eType=EmailBlastContent&eId=f4497cb8-4bb6-47e0-8d45-62887ae34812