On December 15, 2022, the Fifth Circuit Court of Appeal published a precedent decision in which it determined that:

1. the government is not required to provide notice in any language other than English; and
2. failure of a respondent in removal proceedings to provide an address at which the respondent may be reached exempts the government from providing a written hearing notice, even if a defective notice to appear that does not contain the time and place of the initial hearing was initially served on the respondent and an in absentia order issued in the absence of hearing notice remains valid.

On December 1, 2022, the Fifth Circuit Court of Appeal published a precedent decision in which it confirmed that:

1. reliance on ineffective assistance of counsel as an “extraordinary circumstance” which prevented timely filing of a motion to reopen requires proof that the untimeliness of the motion was the result of ineffectiveness of counsel.
2. refusal to review decisions denying sua sponte reopening of proceedings for lack of appellate jurisdiction is not erroneous according to the reasoning of the United States Supreme Court in Dada v. Mukasey, 554 U.S. 1 (2008), Heckler v. Chaney, 470 U.S. 821 (1985), Kucana v. Holder, 558 U.S. 233 (2010), and Mata v. Lynch,” 576 U.S. 143 (2015). 

On November 28, 2022, the Fifth Circuit Court of Appeal published a precedent decision in which it concluded that:

1. for the purpose of classifying a fraud offense involving multiple defendants and counts that result in loss of more than $10,000 to a victim or victims as an aggravated felony under section 101(a)(43)(M) of the Act, the Immigration Judge or the BIA can rely on court ordered restitution of a total loss that exceeds a loss of less than $10,000 in the sole count to which a defendant pled guilty; and
2. for the purpose of classifying an offense as a particularly serious crime using a case-by-case analysis, Immigration Judges are not limited to determining whether or not the offense is an aggravated felony.

On October 25, 2022, the Fifth Circuit Court of Appeal published a precedent decision in which it applied the substantial evidence standard of review under section 242(b)(4)(B) of the Immigration and Nationality Act, as amended (“the Act”) which requires that factual findings are conclusive “unless any reasonable adjudicator would be compelled to conclude to the contrary,” and determined that: 

Substantial evidence supports an Immigration Judge's finding that an asylum applicant was targeted by extortionists because she owned a profitable business; not because she shared family membership with an individual who was attacked and beaten after he refused to carry contraband into the prison where he worked. 

Therefore, she did not establish a nexus between the motive of the persecutors and one or more of the five statutory grounds for asylum (i.e. race, religion, nationality, membership in a particular social group or political opinion).

Guevara-Fabian v. Garland (October 25, 2022) No. 20-60627.
 

On October 4, 2022, the Fifth Circuit Court of Appeal published a precedent decision in which it followed Arulnanthy v. Garland, 17 F.4^th 586 (5th Cir. 2021) and held that:

Without exception even in cases involving adverse credibility determinations, 8 C.F.R. § 1208.16(c)(3), requires the Board of Immigration Appeals to consider evidence of gross, flagrant or mass violations of human rights within the country of removal and any other relevant information regarding conditions in the country of removal in its likelihood-of-torture assessment. 

Elmond Echaukian Ndifon v. Garland (October 4, 2022) No. 20-60997.

On September 30, 2022, the Fifth Circuit Court of Appeal published a precedent decision in which it determined that:

1. In spite of the 2006 amendment to the Violence Against Women Act of 1994 ("VAWA”) and the waiver of unlawful presence under section 212(a)(9)(iii) of the Act for self-petitioners under the VAWA, the mandatory bar to relief for aliens subject to reinstatement of a removal order under section 241(a)(5) of the Act based on subsequent illegal reentry governs eligibility for special rule cancellation of removal for battered spouses under section 240A(b)(2)(A) of the Act; and
2. Cancellation of removal under section 240A(b)(2)(A) of the Act relating to battered spouses is properly classified as “relief” within the meaning of section 241(a)(5) of the Act which disqualifies an alien subject to a reinstated removal order from discretionary consideration.

On September 21, 2022, the Fifth Circuit Court of Appeal published a precedent decision in which it determined that two beatings accompanied by threats; the first beating involving swelling treated with at-home pain medication, and the second beating with sticks involving injuries treated during a three-day hospital stay; that were concluded by the BIA cumulatively not to be severe enough to classify as persecution or torture, do not compel an opposite conclusion. 

Pardeep Kumar v. Garland (September 21, 2022) No. 20-60712.

On September 9, 2022, the Fifth Circuit Court of Appeal published a precedent decision in which it determined that the requirement under section 240A(b)(1)(D) of the Act that an alien applying for cancellation of removal must demonstrate “exceptional and extremely unusual hardship” to a qualifying relative, irrespective of hardship suffered by the alien, passes constitutional muster.

On September 1, 2022, the Fifth Circuit Court of Appeal published a precedent decision in which it determined that:

1. Under section 240A(d)(1) of the Immigration and Nationality Act, as amended ("the Act"), accrual of physical presence necessary to qualify for cancellation of removal under section 240A(b) of the Act can be stopped in only two ways:

1. when the alien is served a notice to appear described in under [section 239(a)(1) of the Act; or
2. when the alien has committed an offense referred to in section 212(a)(2) of the Act that renders the alien inadmissible under section 212(a)(2) of the Act or removable under section 237(a)(2) or section 237(a)(4) of the Act.  See section 240A(d)(1) of the Act; and

2. a final order of removal does not stop the accrual of physical presence necessary to qualify for cancellation of removal under section 240A(b) of the Act. 

On July 15, 2022, the Fifth Circuit Court of Appeal issued an unpublished decision (i.e. a decision that is binding only on the parties in controversy) in which it determined that a respondent in immigration court proceedings who knowingly concedes removability as charged in the notice to appear (Form I-862) is bound by the concession. 

Santiaga Zamora Gonzalez v. Garland (July 15, 2022) No. 21-60371.

On August 5, 2022, the Fifth Circuit Court of Appeal published a precedent decision in which it determined that:

1. Based on Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019), a defective NTA that does not contain the time and date of the initial removal hearing constitutes a valid charging document for the purpose of bestowing jurisdiction on the Immigration Judge to hold removal proceedings; and
2. based on Patel v. Garland, 142 S. Ct. 1614 (2022), the bar to appellate court review articulated in section 242(a)(2)(B)(i) of the Immigration and Nationality Act, as amended ("the Act") applies to the BIA’s exceptional and extremely unusual hardship determination in the context of a cancellation of removal application governed by section 240A(b) of the Act.

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

Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021) (holding that under section 240(b)(5)(C)(ii) of the Act, an in absentia removal order may be rescinded upon a motion to reopen filed at any time if the alien demonstrates receipt of a defective notice to appear (“NTA” designated as Form I-862) that does not contain the time and place of the initial removal hearing in accordance with section 239(a)(1)(G)(i) of the Act) does not apply when the alien actually receives a notice of hearing (“NOH”) from the immigration court or does not deny receiving the NOH.

In other words, receipt of the NOH from the immigration court invalidates a motion to reopen based on insufficient notice attributed to a defective NTA that does not contain the time and place of the initial removal hearing. 

Moris Esmelis Campos-Chaves v. Garland (August 3, 2022) No. 20-60262.

On July 21, 2022, the Fifth Circuit Court of Appeal published a precedent decision in which it determined that:

1. Equitable tolling of the filing deadline relating to a motion to reopen requires proof, not only of extraordinary circumstances, but also the exercise of reasonable diligence in pursuit of the moving party’s rights; and
2. under the highly deferential abuse-of-discretion standard and substantial evidence standard relating to fact finding, in the absence of an explanation for a two-year delay in filing a motion to reopen subsequent to discovery of an outstanding removal order, the BIA did not abuse its discretion by finding that the Petitioner failed to act with reasonable diligence in pursuing her rights.

On July 22, 2022, the Fifth Circuit Court of Appeal published a precedent decision in which it declared boundaries to the deference it is willing to grant to administrative adverse credibility findings:

1. An adverse credibility determination must be based in “specific and cogent reasons derived from the record.”  Singh v. Sessions, 880 F.3d 220, at 225 (5th Cir. 2018) (quoting Wang v. Holder, 569 F.3d 531, at 537 (5th Cir. 2009)); and,
2. an adverse credibility determination made without considering a claimant’s corroborating evidence is not based on “specific and cogent reasons derived from the record."  

Mariana Ndudzi v. Garland (5^th Cir. July 22, 2022) No. 20-60782.

On June 28, 2022 the Fifth Circuit Court of Appeal published a precedent decision in which it determined that:

1. an agency action denying a visa petition will stand unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with [the] law,” and “[a] decision is arbitrary or capricious only when it is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”  See 5 U.S.C. § 706(2)(A) and Wilson v. U.S. Dep’t of Agric., 991 F.2d 1211, at 1215 (5th Cir. 1993), respectively; and    
2. the previous grant of a temporary visa does not bind the USCIS to later grant a permanent visa.  See Nat’l Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, at 1476 (5th Cir. 1989). 

On July 8, 2022, the Fifth Circuit Court of Appeal published a precedent decision in which it determined that:

In spite of the United States Supreme Court’s decision in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) and the Fifth Circuit Court of Appeal decision in  Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021) (holding that an alien may move “at any time” to reopen and rescind his in absentia removal order if the notice to appear does not include all of the information required in section 239(a)(1) of the Immigration and Nationality Act, as amended, including the time and date of his removal hearing), an alien “forfeits his right to notice by failing to provide a viable mailing address” and “cannot seek to reopen the removal proceedings and rescind the in absentia removal order for lack of notice.”  Spagnol-Bastos v. Garland, 19 F.4th 802, at 806 (5th Cir. 2021). 

Wilmer Gudiel-Villatoro v. Garland (July 8, 2022) No. 20-61050.

On June 29, 2022, the Fifth Circuit Court of Appeal published a precedent decision in which it concluded that:

1. the exception to the 90-day time bar relating to motions to reopen under section 240(c)(7)(C)(ii) of the Act does not apply to the number limitation relating to motions to reopen under section 240(c)(7)(A) of the Act which permits the filing of only one motion to reopen;
2. the proponent of a motion to reopen cannot rely on 8 C.F.R. § 1003.2(c)(3) to extend the changed-country-conditions statutory exception to the 90-day time bar for motions to reopen pursuant to section 240(c)(7)(C)(ii) of the Act to the statutory number limitation permitting the filing of only one motion to reopen; and
3. a case under appellate review based on statutorily precluded relief (such as a number-barred motion to reopen) must be denied, not remanded regardless of the potential for other relief (such as cancellation of removal).

On June 7, 2022, the Fifth Circuit Court of Appeal published a precedent decision concluding that:

An offense involving injury to a child under § 22.04(a) of the Texas Penal Code is divisible with regard to its three protected classes of persons and is a “crime of child abuse” as described in section 237(a)(2)(E)(i) of the Act, based on application of the modified categorical classification approach, in spite of being overbroad on its face in comparison to the generic federal statute by criminalizing injury to an elderly person or a disabled individual as well as injury to a child. 

Emmanuel Chukwuka Monsonyem v. Garland (June 7, 2022) No. 20-60952.

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).