After years of formulating and trying to nail down creative but jello-like particular social groups for clients with asylum claims, a client walks into your law office with what seems to be a straight forward winning asylum claim!

The claim is based on political opinion.  No particular social group is necessary.  You have documented facts establishing past persecution.  You have egregious harm.  You have a nexus between the motive of the persecutor and your client's political opinion.  You have corroborating evidence.  Your client’s testimony is consistent with his Department of Homeland Security (“DHS”) credible fear interview, the client's application, other testimony and the United States State Department country report.

You are smiling to yourself upon finishing your direct exam.

Then, the Immigration Judge turns to you with a grimace:  “Counsel, I’ve seen this claim before.”

To be eligible for cancellation of removal under section 240A(b)(1) of the Immigration and Nationality Act, as amended ("the Act") an applicant must prove in addition to other criteria that the applicant "has not been convicted of an offense classified under sections 212(a)(2), 237(a)(2), or 237(a)(3)" of the Act (criminal grounds or document fraud grounds) (emphasis added).  See section 240A(b)(1)(C) of the Act.

On March 4, 2021, The United States Supreme Court declared that the above cited statute means exactly what is says.

How does one prove a negative statement?

Have we reached the outer limits of use for the "categorical" classification approach in immigration proceedings?
 

Administrative closure in immigration court was significantly curtailed by an Attorney General decision on May 18, 2018.  Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).  In this case, Attorney General Jefferson B. Sessions III determined that Immigration Judges and the BIA do not have general authority to indefinitely suspend immigration proceedings by administrative closure.

On July 15, 2021, however, Attorney General Merrick Garland vacated Matter of Castro-Tum.   Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021).  In particular, Attorney General Garland mandated Immigration Judges and the Board of Immigration Appeals (“BIA”) to apply the standard for administrative closure set forth in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017).  Matter of Avetisyan and Matter of W-Y-U- outlined the standards that must be met for granting administrative closure before Attorney General Sessions published Matter of Castro-Tum on May 17, 2018.

In the collective experience of immigration law enforcement professionals, it is not uncommon for individuals to return to the United States without authorization after the execution of their final order of deportation, exclusion or removal.  In fact, Congress enacted legislation to address this "boomerang" phenomenon, in part, by providing for the reinstatement of removal orders against aliens who illegally reenter the United States.  See section 241(a)(5) of the Immigration and Nationality Act, as amended ("the Act"). 

On June 29, 2021, the United States Supreme Court, based on a plain text analysis of the law, determined that eligibility for bond relating to aliens whose removal orders have been reinstated under section 241(a)(5) of the Act are governed by section 241 of the Act, and not section 236 of the Act.

As a consequence, aliens with reinstated removal orders are not eligible for a bond redetermination hearing before an Immigration Judge, even though an application for withholding of removal only ("withholding only") under section 241(b)(3) of the Act is pending.