Matter of O-Y-A-E- (BIA 2025): BIA Clarifies Convention Against Torture Standard—Old Threats Alone Are Not Enough

Posted on August 23, 2025 by Mike Baker

BIA Tightens CAT Protection: Matter of O-Y-A-E-

Read the official opinion:

Matter of O-Y-A-E-, 29 I&N Dec. 190 (BIA 2025)

Quick Overview

  • New Precedent: General threats and countrywide danger no longer qualify for protection under the Convention Against Torture (CAT) unless the risk is recent, individualized and ongoing.
  • Background: The respondent, a former Venezuelan military counterintelligence officer, refused to falsify documents for her commander and faced threats in July 2021. She retired in December 2021. After no contact for years, she left Venezuela in February 2024.
  • BIA Ruling: The Board reversed a grant of CAT deferral, holding that the risk was too attenuated and not supported by current, particularized evidence.

How Did the Standard Change?

Previous Law: Until now, courts often considered a combination of credible past threats, general evidence of country conditions, and the government’s capacity to identify an applicant as sufficient for CAT protection.

Matter of O-Y-A-E-: The Board firmly requires “recent, particularized threat of torture.” Evidence of prior threats or countrywide human rights abuses, alone, is inadequate if the applicant was not harmed, contacted, or pursued in the years before departure.

Legal authorities cited:

  • Dhital v. Mukasey: Applicants must face a “particularized threat of torture.”
  • Tzompantzi-Salazar v. Garland: General crime, violence and police corruption are insufficient—evidence must show ongoing individual risk.
  • Matter of R-A-F-: Board reviews “predictive factual findings” for clear error, but new emphasis is on contemporaneous evidence.

Timeline of Case Events

July 2021 Threats from military commander. Visits to respondent’s home.
December 2021 Respondent retires from Venezuelan military. No further contact.
Feb 2024 Leaves Venezuela. No threats or pursuit for 2.5 years prior.
July 2025 BIA reverses CAT protection, citing absence of ongoing individualized risk.

Summary Table: What Counts Now?

Evidence Before Now (O-Y-A-E-)
Old threats Often enough Insufficient
General country conditions Often enough Insufficient
Recent, ongoing risk Not always required Absolutely required
Government pursuit Helpful, not essential Essential

Practical Impact and Next Steps

  • This ruling will lead to far more denials for Venezuelan and other applicants whose last threat is “stale.”
  • Attorneys must develop recent, documentary proof of pursuit or threats right up to the time of departure.
  • CAT protection is now nearly impossible if you only have old threats or rely on general reports of abuse.

In sum: The BIA in Matter of O-Y-A-E- demands real-time, individualized risk for CAT protection. Old stories and broad country evidence no longer suffice.
Always read and cite the full case:
Matter of O-Y-A-E-, 29 I&N Dec. 190 (BIA 2025)

BIA vs. ALL CIRCUITS: This Decision Is Dead on Arrival

THE FUNDAMENTAL SPLIT: Aggregate vs. Individual Analysis

EVERY FEDERAL CIRCUIT SAYS:

“Consider ALL risk factors CUMULATIVELY”

Past threats + Country conditions + Personal factors = ANALYZED TOGETHER

BIA O-Y-A-E- SAYS:

“Each factor must stand ALONE”

Old threats = worthless
Country conditions = insufficient

THE CIRCUITS REQUIRING AGGREGATE APPROACH

️ Third Circuit – Pennsylvania, New Jersey, Delaware

Case: Kamara v. Attorney General, 420 F.3d 202, 213-14 (3d Cir. 2005)

Standard: “Cumulative probability of torture by [multiple sources] exceeds 50%”

️ Fourth Circuit – Maryland, Virginia, North Carolina, South Carolina, West Virginia

Case: Rodriguez-Arias v. Whitaker, 915 F.3d 968, 972-73 (4th Cir. 2019)

Standard: “Consider the aggregated risk caused by all three entities in unison”

️ Sixth Circuit – Michigan, Ohio, Kentucky, Tennessee

Case: Marqus v. Barr, 968 F.3d 583, 589 (6th Cir. 2020)

Standard: “Cumulative probability of torture by [all] entities, or for all reasons”

️ Seventh Circuit – Illinois, Indiana, Wisconsin (CHICAGO AREA)

Case: Nyandwi v. Garland, 15 F.4th 836, 839 (7th Cir. 2021)

“The agency may address risk factors individually SO LONG AS it considers all sources of and reasons for risk cumulatively”

⚠️ O-Y-A-E- DIRECTLY VIOLATES this binding precedent

️ Eighth Circuit – Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota

Case: Abdi Omar v. Barr, 962 F.3d 1061, 1065 (8th Cir. 2020)

Standard: Must follow aggregate risk approach for CAT determinations

️ Ninth Circuit – California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, Washington

Case: Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1308 (9th Cir. 2015)

Standard: Risk factors must be considered “in the aggregate”

CIRCUITS SUPPORTING BIA INDIVIDUAL APPROACH

ZERO

No federal circuit has endorsed O-Y-A-E-‘s restrictive standard

THE INEVITABLE RESULT

Circuit Geographic Area Key Case Result
3rd Circuit PA, NJ, DE Kamara v. Attorney General Will Reject O-Y-A-E-
4th Circuit MD, VA, NC, SC, WV Rodriguez-Arias v. Whitaker Will Reject O-Y-A-E-
6th Circuit MI, OH, KY, TN Marqus v. Barr Will Reject O-Y-A-E-
7th Circuit IL, IN, WI (Chicago) Nyandwi v. Garland WILL REJECT O-Y-A-E-
8th Circuit AR, IA, MN, MO, NE, ND, SD Abdi Omar v. Barr Will Reject O-Y-A-E-
9th Circuit CA, AK, AZ, HI, ID, MT, NV, OR, WA Quijada-Aguilar v. Lynch Will Reject O-Y-A-E-

️ ARIZONA SPECIFIC: O-Y-A-E- Violates Binding Ninth Circuit Law

THE ARIZONA IRONY

O-Y-A-E- originated in Tucson, Arizona (attorney: Brent Johnson, Esquire)

But it violates the binding law of Arizona’s own federal circuit!

ARIZONA’S BINDING NINTH CIRCUIT PRECEDENT

Case: Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1308 (9th Cir. 2015)

“CAT claims must be considered in terms of the aggregate risk of torture from all sources, and not as separate, divisible CAT claims.”

Requirement: BIA must consider “all evidence relevant to the possibility of future torture” in aggregate

HOW O-Y-A-E- VIOLATES NINTH CIRCUIT LAW

NINTH CIRCUIT REQUIRES:

Aggregate analysis of all risk factors together

O-Y-A-E- DID:

Analyzed each factor individually, stopped

IMMEDIATE IMPLICATIONS FOR ARIZONA PRACTITIONERS
  • O-Y-A-E- violates binding Ninth Circuit law
  • Quijada-Aguilar precedent trumps BIA in Arizona federal courts
  • Any O-Y-A-E–based denial should be immediately appealed
  • Ninth Circuit will reverse BIA decisions following O-Y-A-E-
ARIZONA CASE LAW SUPPORTING AGGREGATE ANALYSIS
  • Xochihua-Jaimes v. Barr (9th Cir. 2020) – Applied aggregate analysis
  • Guerra v. Barr (9th Cir. 2020) – Required proper CAT review
  • Multiple Arizona immigration cases citing Quijada-Aguilar

Bottom Line: Arizona practitioners have the strongest possible precedent to challenge O-Y-A-E-

IMMEDIATE STRATEGY FOR PRACTITIONERS

The BIA just declared war on six federal circuits. Here’s how to respond:

  • Argue Circuit Precedent Controls: Federal circuit law trumps BIA precedent in that circuit
  • Preserve the Issue: Make aggregate approach arguments in every case
  • File Cert Petitions: This 6-0 circuit split is Supreme Court material
  • Chicago Area: Nyandwi is binding law that directly contradicts O-Y-A-E-

Binding Chicago-Area Precedent:

Nyandwi v. Garland, 15 F.4th 836 (7th Cir. 2021)

️ Supreme Court Certainty: When the BIA creates an unprecedented circuit split by rejecting unanimous federal court precedent, Supreme Court review becomes highly likely, though not inevitable. Historical evidence shows the Court frequently sides with circuit courts over restrictive BIA interpretations in cases involving judicial review and due process.

“`

CIRCUIT SPLIT ANALYSIS: O-Y-A-E- vs. Federal Courts

THE FUNDAMENTAL CONFLICT

WHAT ALL 6 CIRCUITS REQUIRE:

“Individual Analysis + Cumulative Analysis = Complete”

Must consider all factors both separately AND together

WHAT O-Y-A-E- ACTUALLY DID:

“Individual Analysis + Stop = Complete”

Skipped mandatory cumulative analysis

EVIDENCE O-Y-A-E- DISMISSED INDIVIDUALLY

  1. Past threats to torture/kill respondent + family (July 2021)
  2. Commander under EU sanctions for human rights violations
  3. Country conditions showing systematic torture by Venezuelan military
  4. Military background – easily identifiable as former counterintelligence officer
  5. Whistleblower status – refused to falsify terrorist attack document
THE MISSING ANALYSIS (Required by ALL Circuits):

QUESTION NEVER ASKED: Do these 5 factors TOGETHER create a more-likely-than-not (>50%) risk of torture upon return?

CIRCUIT PRECEDENT VIOLATED

️ Seventh Circuit – Illinois, Indiana, Wisconsin (CHICAGO AREA)

Case: Nyandwi v. Garland, 15 F.4th 836 (7th Cir. 2021)

“The agency may address risk factors individually SO LONG AS it considers all sources of and reasons for risk CUMULATIVELY”

️ Third Circuit – Pennsylvania, New Jersey, Delaware

Kamara v. Attorney General: “Cumulative probability of torture by [multiple sources] exceeds 50%”

️ Fourth Circuit – Maryland, Virginia, North Carolina, South Carolina, West Virginia

Rodriguez-Arias v. Whitaker: “Consider the aggregated risk caused by all three entities in unison”

️ Sixth Circuit – Michigan, Ohio, Kentucky, Tennessee

Marqus v. Barr: “Cumulative probability of torture by [all] entities, or for all reasons”

️ Eighth Circuit – Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota

Abdi Omar v. Barr: Must follow aggregate risk approach for CAT determinations

️ Ninth Circuit – California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, Washington

Quijada-Aguilar v. Lynch: Risk factors must be considered “in the aggregate”

PROOF OF DIRECT VIOLATION

  • O-Y-A-E- treats aggregate as: “Sum of insufficient parts = Insufficient whole”
  • Circuits require: “Ask whether insufficient parts create sufficient whole”
  • BIA conclusion came ONLY from individual analysis
  • Never performed mandatory cumulative analysis
MATHEMATICAL INCOMPATIBILITY

Circuit Standard: Individual Analysis + Cumulative Analysis = Complete

O-Y-A-E- Standard: Individual Analysis + Stop = Complete

RESULT: Direct violation of binding federal court precedent

INEVITABLE OUTCOME

Every circuit court reviewing O-Y-A-E- cases will find they violate binding precedent requiring aggregate analysis of CAT claims.

The BIA just declared that 20 years of unanimous circuit precedent is WRONG.

Supreme Court review is now possible with this 6-0 circuit split.

BIA Reversal Patterns in Federal Courts:

  • Supreme Court consistently sides with circuits over restrictive BIA interpretations in due process cases
  • Recent decisions like Santos-Zacaria and Guerrero-Lasprilla show Court’s willingness to constrain BIA overreach
  • Circuit court reversal rates of BIA decisions average 8-12% annually

Binding Chicago-Area Precedent:

Nyandwi v. Garland, 15 F.4th 836 (7th Cir. 2021)

Posted in Asylum, Board of Immigration Appeals, Convention Against Torture, matter-of-o-y-a-e-bia-2025-cat-standard-old-threats-not-enough | Leave a comment

Soft Secession vs. Soft Fascism: How States Quietly Resist Federal Overreach

Posted on August 22, 2025 by Mike Baker

A historical look at how states—from abolitionist days to modern sanctuary cities—use non-cooperation to shape the balance of power in America.

Conservative Supreme Court decisions on federalism have unintentionally provided Democratic-led states with the legal framework now being used to resist federal authority.

In his recent analysis, Chris Armitage introduces Americans to a concept that could fundamentally reshape our federal system: “soft secession.” Unlike the violent rupture of 1861, this represents states quietly walking away from each other through strategic non-cooperation rather than direct confrontation.

The foundation for this resistance was built by the very conservative justices who never imagined blue states would use it.

The Legal Foundation: A Conservative Gift to Blue States

The anti-commandeering doctrine, crystallized in two landmark Supreme Court cases, provides the constitutional roadmap for state resistance:

  • Printz v. United States (1997): Justice Antonin Scalia ruled that the federal government cannot “issue directives requiring the States to address particular problems, nor command the States’ officers… to administer or enforce a federal regulatory program.” This struck down provisions requiring local sheriffs to perform federal background checks.
  • Murphy v. NCAA (2018): Justice Samuel Alito expanded this principle, ruling that federal law cannot put state legislatures under the “direct control of Congress,” whether through commands or prohibitions.

These decisions established that states cannot be forced to actively participate in federal enforcement, even when federal law remains supreme. The federal government can pass laws, but without willing state cooperation, much of its agenda becomes practically unenforceable.

Yale’s Framework: “Uncooperative Federalism”

Yale Law Professor Heather Gerken coined the term “uncooperative federalism” to describe this strategy. Rather than viewing states as either sovereign or servant, Gerken argues that states derive significant power from their role as servants in the federal system.

Her framework identifies three key mechanisms:

  • Regulatory resistance: Using federally-conferred power to resist federal policy
  • Information control: Withholding cooperation in data sharing and enforcement
  • Resource denial: Refusing to provide state resources for federal programs

As Gerken notes, in an integrated federal system, “sovereignty is rarely, if ever, to be had,” making the “power of the servant” more realistic and effective.

Historical Proof: From Personal Liberty Laws to Sanctuary Cities

Northern Personal Liberty Laws (1780-1859): The Original Sanctuary Movement

The most powerful precedent involved Northern states systematically undermining the Fugitive Slave Acts through “personal liberty laws” legislation that sounds remarkably similar to today’s sanctuary city ordinances.

Massachusetts’ 1855 Personal Liberty Act declared that “The writ of habeas corpus may be issued by the supreme judicial court… and it may be issued by any justice of the peace.” Vermont’s 1850 Habeas Corpus Law required state judicial and law enforcement officials to assist captured fugitive slaves rather than federal agents. Michigan’s 1855 law prohibited “county jails from being used to detain recaptured slaves” and directed “county prosecutors to defend recaptured slaves.”

The language was deliberate and defiant. These laws guaranteed jury trials for alleged fugitive slaves, forbade state officials from cooperating in captures, and penalized state officers for “voluntarily engaging in slavecatching.” Wisconsin’s 1857 law went further, forbidding state judges from issuing certificates of removal under federal law.

The result? Despite federal law requiring the return of fugitive slaves, only 330 slaves were returned over nearly 80 years due to state non-cooperation. The federal Fugitive Slave Act became what Ralph Waldo Emerson called “a dead letter” in Massachusetts and other resistant states.

Chicago: From Harold Washington to J.B. Pritzker

The direct line from 19th-century personal liberty laws to modern sanctuary cities runs through Chicago. Mayor Harold Washington’s 1985 Executive Order establishing Chicago as a sanctuary city used language that deliberately echoed earlier resistance: the order “prohibited police and city employees from questioning residents about their immigration status and terminated cooperation with federal immigration authorities.”

Washington’s executive order was written to “assure that all residents of the City of Chicago, regardless of nationality or citizenship, shall have fair and equal access to municipal benefits, opportunities and service” language that directly parallels the personal liberty laws’ guarantee that state courts would protect all persons within state boundaries.

By 2006, Chicago’s sanctuary protections became the Welcoming City ordinance, which “prohibited the use of city funds and resources to assist federal immigration enforcement,” the defining characteristic of a sanctuary city. The ordinance banned officers from ” arresting anyone just because they were suspected of being undocumented” and directed police to ignore federal requests to detain people beyond their release date.

Governor Pritzker’s Modern Resistance

Illinois Governor J.B. Pritzker has scaled this resistance to the state level through the Illinois TRUST Act, which “generally prohibits local law enforcement in Illinois from participating in immigration enforcement.” The Act’s language mirrors 19th-century personal liberty laws: it limits officials from “complying with immigration detainer requests” and forbids “stopping, arresting, searching or detaining an individual solely based on immigration status.”

When testifying before Congress in 2025, Pritzker’s language was defiant: “We will not participate in abuses of power. We will not violate court orders. We will not ignore the Constitution.” This echoes Wisconsin’s 1857 declaration that the state would not assist in enforcing federal fugitive slave laws that violated state constitutional protections.

Pritzker’s recent signing of legislation extending student financial aid to undocumented immigrants represents the modern equivalent of personal liberty laws that provided legal protections and state resources to those threatened by federal enforcement.

Modern Examples Beyond Immigration

  • Cannabis: 40 states have legalized medical cannabis and 24 have legalized recreational use, despite federal prohibition. The federal government has essentially abandoned enforcement.
  • REAL ID: When 25 states refused to implement requirements starting in 2007, they delayed enforcement by nearly two decades from 2008 to 2025.

The Infrastructure of Resistance

Legal Warfare

During Trump’s first term, Democratic attorneys general filed over 130 multistate lawsuits against the administration with an 83% success rate. They maintain “brief banks” with pre-drafted lawsuits ready for immediate filing, the modern equivalent of the coordinated legal resistance Northern states mounted against fugitive slave laws.

Economic Leverage

  • Massachusetts sends $4,846 more per capita to the federal government than it receives
  • New York contributed $142.6 billion more than it received over five years
  • California has accumulated $76 billion in reserves
  • Illinois sends more to Washington than it receives back, giving Pritzker economic leverage in federal disputes

Red States Wrote the Playbook

Texas demonstrates that soft secession works regardless of party. Operation Lone Star achieved an 87% reduction in border crossings through state action alone, independent of federal immigration policy. This $11 billion operation employs the Texas National Guard and state troopers, effectively governing in areas traditionally considered federal domain.

Meanwhile, 46% of U.S. counties have declared themselves Second Amendment sanctuaries, with eleven states officially designating themselves as such. These declarations use language similar to personal liberty laws, stating that no governmental resources will be used to enforce federal laws that “unconstitutionally” infringe upon rights.

The Infrastructure Already Exists

Blue states aren’t building resistance from scratch, they’re scaling existing systems:

  • Voting Rights: Eight states have enacted State Voting Rights Acts exceeding federal protections
  • Election Security: Colorado has created the “gold standard” through risk-limiting audits with paper ballot requirements
  • Automatic Registration: Twenty-two states have implemented automatic voter registration

The Washington State Test Case

The Adams County Sheriff case in Washington State illustrates how far this resistance extends. The state Attorney General is seeking an injunction against the sheriff for cooperating with federal immigration enforcement, arguing he’s violating the Keep Washington Working Act. This creates a direct conflict where local officials must choose between federal directives and state law, the same dilemma faced by Northern officials during the fugitive slave era.

What This Means for America

Soft secession represents a fundamental realignment toward a confederation of semi-autonomous regions rather than a unified nation-state. States are building parallel systems for abortion rights, labor protection, civil rights, immigration policy, and election security.

The federal government increasingly resembles what Armitage calls a “hollow” structure that states have a “moral imperative to ignore” when democracy fails or federal funds are withheld as political punishment.

The Ultimate Irony

Conservative legal theory has provided the tools for progressive state resistance. The anti-commandeering doctrine, designed to protect conservative state sovereignty, now empowers the very blue state opposition its creators likely never intended to enable.

This represents one of the most significant constitutional ironies in recent American history: Justice Scalia’s jurisprudence becoming the foundation for Democratic resistance.

The Historical Echo

The progression from personal liberty laws to sanctuary cities to comprehensive state resistance reveals a consistent pattern: when federal law conflicts with state values, states find ways to nullify federal authority through non-cooperation quietly. The language may evolve, but the strategy remains the same.

Just as Northern states used personal liberty laws to make the Fugitive Slave Act “a dead letter,” modern blue states are using sanctuary laws, economic leverage, and coordinated legal resistance to make much of the federal immigration enforcement apparatus similarly ineffective.

The Path Forward

Rather than violent rupture, soft secession offers states a path to quietly walk away from each other. Blue states build progressive policy infrastructure while red states pursue different directions, all within the constitutional framework that conservative justices provided.

The question isn’t whether soft secession will continue; the legal precedents are established, the economic leverage exists, and the political will is evident. The question is whether this represents a temporary political strategy or a permanent restructuring of American federalism.

As states increasingly choose their own paths on fundamental issues, we may be witnessing the emergence of something unprecedented: a United States that’s united in name only, held together by a federal structure that states systematically choose to ignore.

The infrastructure for resistance is already built. The legal precedents are established. The only question remaining is how far states are willing to go in walking away from a federal system that no longer serves their values or their people.

The conservative justices who created this framework probably never imagined it would be used this way. That’s the beauty and the danger of constitutional law: once you establish a principle, you can’t control who uses it.

Posted in soft-secession-vs-soft-fascism | Leave a comment

Cancellation of Removal: Understanding Deportation Relief for Non-Permanent Residents

Posted on August 21, 2025 by Mike Baker

Matter of Buri Mora: Cancellation of Removal for Non-Permanent Residents

Understanding the legal barriers for relief from removal—and the challenges of proving hardship.

Case Snapshot

  • Respondent: Diego Geovanny Buri Mora, Ecuadorian national
  • Decision: July 21, 2025
  • Result: Board of Immigration Appeals reversed the Immigration Judge; cancellation of removal denied and removal ordered
  • Official Opinion PDF

Cancellation of Removal: Key Requirements

  1. Continuous Physical Presence: At least 10 years in the U.S. (with strict rules on how this time is measured—see below on the stop-time rule)
  2. Good Moral Character: Maintained throughout the relevant period
  3. No Disqualifying Convictions: Certain crimes make cancellation unavailable
  4. Hardship: Must prove “exceptional and extremely unusual hardship” to a U.S. citizen or LPR spouse, parent, or child if they are removed

The “Stop-Time” Rule

Practitioners must scrutinize whether their client satisfies the 10-year continuous physical presence requirement—the “stop-time” rule makes this much harder:

  • Under INA § 240A(d)(1), the clock stops when the noncitizen is served a Notice to Appear (NTA) or commits certain crimes.
  • Pereira v. Sessions (2018): The Supreme Court held a NTA must state the time and place of hearing to trigger the stop-time rule; a vague NTA is not enough.
    Pereira v. Sessions, 585 U.S. ___ (2018)
  • Niz-Chavez v. Garland (2021): The NTA’s info must be in a single document—no “fixing” an invalid NTA by mailing hearing details later.
    Niz-Chavez v. Garland, 593 U.S. 155 (2021)
  • BIA in Matter of Ordaz clarified: not every NTA stops time—proceedings must result from it.
Practice tip: Many old NTAs are defective—always review NTAs! The 10-year count only includes time before the first proper NTA that actually starts proceedings.

Why Relief Was Denied in Buri Mora

  • The BIA disagreed with the Immigration Judge and found the record did not show “exceptional and extremely unusual hardship” to the respondent’s U.S. citizen family.
  • Economic hardship: Loss of income and financial strain, while difficult, are common and not enough for relief.
    “Economic detriment of the nature presented in this case is a common feature of a parent departing the United States.”
  • Family separation/emotional strain: Significant but typical in removal cases.
    “Emotional hardship from family separation is a common result of deportation.”
  • Children’s developmental needs: Since the children and their mother were not being removed—and would retain access to services in New Jersey—these challenges were not enough.
    “As all three children would continue to remain… they would continue to receive medical care through state Medicaid, as well as specialized educational support in the State of New Jersey.”

For Practitioners

  • Double-check NTAs: If any technical defect exists (missing time/place or multi-part notice), pursue stop-time challenges based on Pereira and Niz-Chavez.
  • Prepare thorough evidence for every type of hardship but recognize the Board is strict—medical, emotional, and economic impacts must be far beyond the norm.
  • The stop-time rule is often the first, and most decisive, ground for ineligibility in close cases.
Summary: The BIA overturned the Immigration Judge’s decision and ordered removal, finding the high standards for cancellation were not met—and reminding practitioners that both the continuous presence clock and the hardship bar are formidable.

Full Opinion: Matter of BURI MORA, 29 I&N Dec. 186 (BIA 2025)

Posted in Cancellation of Removal for Non LPRS under INA Section 240A(b)(1), Cancellation of Removal for Non-Lawful Permanent Residents, cancellation-of-removal-deportation-relief-non-permanent-residents | Leave a comment

With Chevron Gone: Timeline of Mandatory Detention and Rising Judicial Review in U.S. Immigration

Posted on August 19, 2025 by Mike Baker
U.S. Immigration Detention: Evolution, Law, and the Shifting Role of the Courts
How status-based mandatory detention grew from border control to a nationwide legal battleground—highlighting statutes, court decisions, agency actions, and new judicial scrutiny after Chevron.
Historical Foundations of Detention

The concept of mandatory immigration detention in the U.S. began as a border-control tool. The Immigration Act of 1893 authorized detention for those physically stopped at the border, building on the “entry fiction” from the 1891 statute, which allowed noncitizens to be detained without being considered legally present. Early laws permitted bond hearings for those arrested inside the country and did not make detention mandatory for deportation. In 1896, the Supreme Court (Wong Wing v. U.S.) upheld detention as a means for deportation, but required due process when detention became punishment. Over time, the system shifted from purely border-based detention to more expansive, post-entry approaches—especially during the War on Crime and War on Drugs eras.

Expansion of Mandatory Detention

Mandatory detention now covers both status-based and crime-based categories. Status-based detention was extended to people stopped within 100 miles of the border or under two years in the U.S., while crime-based detention originated in the Anti-Drug Abuse Act (1988) with the “aggravated felony” category, and was expanded by IIRIRA (1996) and most recently the Lakin Riley Act (2025), which allows mandatory detention even without a conviction for certain crimes.

Current Trends & Agency Actions

As of July 2025, more than 56,900 people are detained in ICE or related custody. Policies under recent administrations have maximized the use of detention, limited due process, and instructed judges to rapidly process and terminate removal proceedings, to minimize bond hearings. ICE’s leadership has interpreted detention statutes ever more broadly, making most noncitizens arrested without inspection ineligible for bond and expanding expedited removal to anyone unable to prove two years’ continuous residence.

Legal Foundations and Shifting Statutory Interpretation

Status-based mandatory detention mainly rests on 8 U.S.C. §1225(b), set up in 1996. IIRIRA created expedited removal procedures, which bypass immigration judges for certain noncitizens. The intertwined nature of expedited removal and mandatory detention has enabled agencies to interpret detention authority expansively in practice, covering nearly all undocumented entrants.

Legislative Changes & Court Involvement

Congress expanded mandatory detention with new laws, but recent court decisions (such as Vazquez v. Bostock) have begun reversing overly broad interpretations, reaffirming bond eligibility and the importance of statutory language. The Lakin Riley Act (2025) states explicitly that entrants without inspection are subject to detention under §1226 (bond possible), not automatic detention under §1225. The Supreme Court’s Jennings v. Rodriguez (2018) confirmed that most mandatory detention was meant for border-based contexts, not for those living in the U.S. interior.

Constitutional & Judicial Trends: The End of Chevron

Expanding status-based detention without individualized review raises serious constitutional concerns, especially under the Due Process Clause. The Supreme Court’s Demore v. Kim supports mandatory detention only when backed by criminal convictions. Detaining interior residents without a warrant raises Fourth Amendment challenges. With the end of Chevron deference (Loper Bright, 2024), courts now independently interpret statutes—giving new life to the immigration rule of lenity, which requires ambiguous laws to be read in favor of noncitizens. Agency actions now face more scrutiny, and abrupt departures from past law (such as the Matter of M-S- and Matter of Q. Li) are less likely to receive deference.

Implications & What Comes Next

The scale and harshness of detention continue to rise. As courts regain authority to review statutory meaning and due process after the end of Chevron deference, agencies must justify broader uses of detention. Ongoing litigation now targets both statutory and constitutional weaknesses in status-based mandatory detention, shaping a new era of immigration law and rights.

Building the Fortress: How Mandatory Immigration Detention Grew Far Beyond the Border
Foundations: Border-Based Detention
Originally, U.S. law authorized mandatory detention only for those stopped at the border, rooted in a narrow doctrine focused on entry control.
Growth: The Two Detention Turrets
Over time, this “fortress” expanded:
Status-Based Mandatory Detention: Once only for those physically at the border, it was first stretched to include:

  • Individuals stopped within 100 miles of the border and less than 14 days after entry—subject to expedited removal.
  • Later, it was expanded to include those anywhere in the U.S., under two years in the country, and also placed in expedited removal.
  • Most recently, it has been broadened further to reach anyone who entered at any time, even if expedited removal never applied.

Crime-Based Mandatory Detention: A separate but parallel expansion covers individuals arrested for a growing category of offenses, even without convictions, per recent legislative changes.

Structural Weakness: Congressional Intent & Statutory Limits
The article details each legal “block” that built the status-based detention turret and analyzes the doctrinal strength of each. It argues this broad expansion runs contrary to Congress’s original intent for mandatory detention, which historically was tightly bound to the border. By principles of statutory interpretation, the excessively large status-based detention turret cannot withstand careful judicial review.
The rapid growth of status-based mandatory detention transforms U.S. immigration law into an expansive fortress, often erasing individualized review and due process. As courts and Congress re-examine the legal foundation, this oversized system faces increasing challenges to its legitimacy and sustainability.

U.S. Immigration Detention: Legal & Legislative Timeline (1891–2025)
Status-based mandatory detention GROWS from border-focused statutes to a national system, shaped by Congress, Courts, and Federal Agencies.
Legend:
Congress / Statute
Court Decision
Agency Action
Conflict / Turning Point
→ Progression
Year Congress / Statute Court Decision Agency / BIA Action
1891 Immigration Act: “Entry Fiction”
1893 Immigration Act: Mandatory Border Detention
1896 Wong Wing v. U.S.: Detention OK for deportation, due process required for punishment
1980 Refugee Act: Asylum Framework
1988 Anti-Drug Abuse Act: “Aggravated Felonies” (Crime-based Detention)
1996 IIRIRA: §1225(b) Border Detention (Mandatory), §1226(a) Interior Arrests + Bond
2001 INS v. St. Cyr: Habeas Review Survives
2003 Demore v. Kim: Mandatory Detention for Crime-based Categories (with conviction)
2004 DHS expands Expedited Removal up to 100 miles from border
2018 Jennings v. Rodriguez: §1225(b) Mandatory (No Bond); §1226(a) (Bond Possible)
2019 Matter of M-S- (BIA): Asylum Seekers after Credible Fear Interview Still Mandatory Detention (§1225)
2020 Trump Policy: Expedited Removal Nationwide (Applies to those unable to prove 2 years residence)
2023 Vazquez v. Bostock: Rejects broad application of §1225(b) for all EWI
2024 Loper Bright: Chevron Deference Overruled, Courts Interpret Statutes Independently
2025 → Lakin Riley Act: Affirms EWI fall under §1226 (bond possible), not §1225 Matter of Q. Li (BIA): All EWI as “Applicants for Admission” (§1225, No Bond)
ICE Memo (2025): Nationwide Bond Denial for EWI
⚡ Current Tension: ICE/BIA Expansion vs. Congressional Correction & Court Reinterpretation

[1891 Immigration Act] → Entry fiction
│
[1893 Immigration Act] → Border detention authorized
│
[Wong Wing v. U.S. (1896)] → Detention valid for deportation; due process for punishment
│
▼
—————————————————-
SHIFT: Late 20th-century detention expansion
—————————————————-
│
[1980 Refugee Act] – asylum system established
│
[1988 Anti-Drug Abuse Act] – “aggravated felonies” create crime-based detention
│
[IIRIRA 1996]
├─ §1225(b): Mandatory detention for arrivals/expedited removal
└─ §1226(a): Interior arrests w/ bond availability
│
▼
[2001 St. Cyr] – habeas remains available
│
[2003 Demore v. Kim] – OK for mandatory crime-based detention (with conviction)
│
[2004 Expedited removal expansion] – interior reach (within 100 miles /14 days)
│
▼
[2018 Jennings v. Rodriguez]
├─ §1225(b): Border arrivals mandatory, no bond
└─ §1226(a): Interior arrests → bond possible
│
[2019 Matter of M-S-] – asylum seekers still mandatory detention
│
[2020 Trump policy] – expedited removal nationwide (2-year residence rule)
│
▼
[2023 Vazquez v. Bostock] – rejects sweeping §1225(b) use in Tacoma
│
[2024 Loper Bright] – Chevron deference ended, more judicial independence
│
—————————————————-
NEW CONFLICT: 2025 Flashpoint
—————————————————-
│
[2025 Matter of Q. Li (BIA)] – all EWI treated under §1225(b)
│
[ICE Policy Memo 2025] – instructs detention of all EWI, no bond hearings
│
[2025 Lakin Riley Act] – Congress reasserts: EWI falls under §1226 (bond possible)
│
▼
CURRENT STAGE:
• Bureaucratic expansion (ICE/BIA) vs. Congressional intent
• Courts, freed from Chevron, are scrutinizing due process
• Future litigation is likely to resolve constitutional limits

From Border-Based to Status-Based Mandatory Detention: Building—and Challenging—the Fortress
Foundation: Border-Based Detention
The United States’ earliest immigration statutes authorized mandatory detention only for persons stopped at the border and subject to exclusion, not for those apprehended inside the country. The “entry fiction,” created in the late 1800s, allowed the government to detain noncitizens physically present but not legally “admitted,” putting them in legal limbo. Early cases such as Wong Wing v. United States (1896) established that detention for immigration purposes was valid so long as it was tied to removal, not punishment.
Statutory authority for bond during deportation (interior arrests) arose in 1907 and evolved over the 20th century, making mandatory detention historically a border phenomenon, not an interior one.
Expansion: The Two “Turrets”
Over time, a “fortress” of detention was built, sprouting two powerful towers:

  • Crime-based mandatory detention: Created in 1988’s Anti-Drug Abuse Act for “aggravated felons,” greatly expanded by IIRIRA (1996) and the Lakin Riley Act (2025), allowing some to be detained upon mere arrest, not conviction.
  • Status-based mandatory detention: Once limited to those standing at the border, it now reaches deep into U.S. territory and far beyond the time of entry, largely through manipulation of expedited removal and 8 U.S.C. §1225(b).
Blocks in the Status-Based “Turret”: Doctrinal Growth
Holper maps out the building blocks of this expansion:

  1. Rejecting the old rule (only “arriving aliens” detained) and applying mandatory detention via expedited removal expansion (Matter of M-S-, 2019).
  2. Broadening expedited removal (e.g. 2025 Trump policy): mandatory detention now applies to anyone unable to prove two years’ residence, anywhere in the country, and not just new arrivals.
  3. Redefining “arriving” so that even those encountered inside the border but soon after entry are treated as if stopped at a port of entry (Matter of Q. Li, 2025).
  4. Administrative choice of removal process (expedited vs. regular removal) declared irrelevant for detention authority, maximizing ICE/DOJ flexibility.
  5. DHS attempts to invalidate the effect of a formally issued arrest warrant, treating all as default mandatory detainees.
  6. Novel doctrine: anyone who entered without inspection is perpetually “seeking admission,” so status-based mandatory detention persists indefinitely—even after years in the U.S. or unrelated to any entry attempt.

Each “block” was often built by unpublished, non-transparent decisions, then rapidly operationalized by executive policy change.

Statutory & Legislative Reality: Congress’s Actual Intent
Holper meticulously explains that **Congress intended status-based mandatory detention to apply only at or near the border**. Statutory history, including IIRIRA (1996) and the Lakin Riley Act (2025), makes clear that persons inside the U.S.—even those present without inspection—should be eligible for bond under 8 U.S.C. §1226, except for specific crime-related provisions. The recent broad reading by ICE and the BIA renders entire new statutes (like the Lakin Riley Act) superfluous and goes against Congress’s specific structure.
Judicial & Constitutional Challenge: Deconstruction Begins
Federal courts are now being called on to dismantle the “status-based turret.” District courts (e.g., Vazquez v. Bostock, 2025) have enjoined the broadest interpretations, finding them inconsistent with statutory text, legislative history, and the Supreme Court’s clear division between border and interior detention (Jennings v. Rodriguez, 2018). Holper shows that after **Chevron deference ended (Loper Bright, 2024)**, agency interpretations receive far more scrutiny—especially where liberty is at stake and where interpretations conflict or shift abruptly.
Real-World Impacts
As of July 2025, more than 56,900 are detained, with rising use of mass detention, rapidly terminated proceedings, and restricted bond hearings—all serving the executive’s goal of maximizing detention and deportation with minimal due process. Holper documents the hardship, abuses, and deliberate process restrictions that follow.
She also highlights how ICE cancels prior bond determinations en masse and pressures the system toward perpetual, unreviewable detention.
The fortress of mandatory detention—now dominated by a massive, legally precarious status-based turret—was not built as Congress intended. Modern judicial challenges are exposing its doctrinal weaknesses. Holper argues, using statutory interpretation, case law, and the constitutional avoidance doctrine, that the current vast use of status-based mandatory detention is unsustainable and must be dismantled.
Credit & Further Reading:
Summary adapted from: From Border-Based to Status-Based Mandatory Detention, Mary Holper (Boston College Law School).

Boston College Law School Legal Studies Research Paper No. 656; Forthcoming, 53 Fordham Urban Law Journal (2026); Posted: 16 Aug 2025.


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Matter of G-C-I-: The BIA Just Rewrote the Rules for Credibility and Corroboration

Posted on August 19, 2025 by Mike Baker

The Board of Immigration Appeals (BIA) issued a landmark decision today that fundamentally reshapes how Immigration Judges can evaluate asylum seekers and other applicants for protection from removal. In Matter of G-C-I-, 29 I&N Dec. 176 (BIA 2025), decided on August 19, 2025, the BIA established two precedents that will have profound implications for immigration practice nationwide.

Download the Full Decision

The Two Holdings

1. Nonresponsive and Evasive Testimony Now Supports Adverse Credibility Findings

The New Rule: A respondent’s nonresponsive and evasive testimony, including when related to corroboration issues, supports an adverse credibility determination.

What This Means: Immigration Judges can now find applicants not credible based on how they answer questions, not just what they say. This represents a significant expansion of credibility analysis beyond traditional factors.

2. Lack of Corroboration Can Independently Defeat Claims

The New Rule: A lack of corroboration may be an independent basis to find that a respondent has not met their burden of proof to establish asylum or withholding of removal claims.

What This Means: Even if an applicant is deemed credible, failure to provide supporting evidence can still result in denial. Credibility and corroboration are now clearly separate hurdles, both of which must be overcome.

Why This Decision Matters: Understanding the Legal Evolution

The Credibility Revolution: From Inconsistencies to Demeanor

Prior to the REAL ID Act of 2005, credibility determinations were largely based on consistency and plausibility. The Act introduced a broader framework, allowing Immigration Judges to consider “demeanor, candor, or responsiveness” alongside traditional factors.

However, until G-C-I-, most adverse credibility findings focused on:

  • Inconsistencies between different statements
  • Implausible testimony
  • Lack of detail in accounts

G-C-I- represents a seismic shift by explicitly endorsing credibility denials based on evasiveness and non-responsiveness during testimony. This mirrors developments in other areas of law where witness behavior during questioning can indicate deception.

The Historical Context: From S-M-J- to L-A-C- to G-C-I-

The corroboration requirements have evolved through a series of key decisions:

Matter of S-M-J- (1997): The Foundation

Before the REAL ID Act, Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997), established that where it’s reasonable to expect corroborating evidence, it should be provided. However, this was applied inconsistently across circuits.

The REAL ID Act (2005): Congressional Codification

Congress codified S-M-J-‘s standards in the REAL ID Act, establishing that testimony alone “may be sufficient” only if it’s “credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.”

Matter of L-A-C- (2015): Clarifying Procedures

Matter of L-A-C-, 26 I&N Dec. 516 (BIA 2015), clarified that Immigration Judges don’t need to provide advance notice of required corroboration or automatic continuances. This decision was controversial, with some circuits disagreeing.

Matter of G-C-I- (2025): The Independent Standard

G-C-I- takes L-A-C-‘s framework further by explicitly stating that corroboration analysis is independent of credibility. Even credible applicants can be denied for lack of supporting evidence.

Matter of G-C-IT. The Georgian Opposition Member’s Failed Quest

The respondent, a Georgian citizen, claimed persecution for supporting the United National Movement (UNM) opposition party. He alleged:

  • 2020: Beaten by police while transporting voters, hospitalized
  • 2024: Beaten again at a political rally after returning from unsuccessful asylum attempt in France

Where It Went Wrong: The Evasive Testimony

The critical moment came when the Immigration Judge asked about efforts to obtain medical records. Instead of providing specific answers about what steps he had taken, the respondent:

“…focused on the generalized political climate in Georgia, claiming that people were afraid of participating in his case. He did not answer the specific question of why protests would prevent his friends or family from obtaining his medical records.”

This pattern of non-responsive answers became central to the credibility denial.

The Missing Evidence That Sealed His Fate

The respondent also failed to obtain:

  • Medical records from his alleged beatings (despite vague explanations about political climate)
  • A letter from his brother who lived in the United States and was central to his political activities

When asked why he hadn’t requested a letter from his brother, the respondent testified that “while his brother would have been willing to write a letter, he had not asked him.”

The Credibility Expansion: A New Weapon for Immigration Judges

G-C-I- explicitly endorses what many Immigration Judges were already doing informally: penalizing applicants for how they testify, not just what they say. This creates several new challenges:

1. Cultural and Linguistic Barriers

Applicants from cultures where direct confrontation with authority figures is discouraged may appear “evasive” when simply following cultural norms.

2. Trauma-Informed Considerations

Trauma survivors often provide circuitous answers, especially when discussing difficult experiences. This decision could penalize trauma responses.

3. Language Interpretation Issues

Through interpreters, natural speech patterns may appear more evasive than they actually are.

The Corroboration Trap: Two Separate Hurdles

The decision’s second holding creates a “double burden” system:

Traditional Analysis (Pre-G-C-I-)

  1. Is the testimony credible?
  2. If credible, is it sufficient alone or does it need corroboration?

New Analysis (Post-G-C-I-)

  1. Credibility Analysis: Is the testimony credible?
  2. Independent Corroboration Analysis: Regardless of credibility, is the burden of proof met without additional evidence?

This means practitioners must now prepare for two separate battles rather than one comprehensive analysis.

Practical Implications for Immigration Lawyers

Immediate Action Items

1. Enhanced Client Preparation

  • Mock questioning sessions focusing on direct, responsive answers
  • Cultural competency training for clients about U.S. courtroom expectations
  • Trauma-informed preparation that acknowledges but works around trauma responses

2. Evidence Gathering Revolution

  • Proactive corroboration collection before any hearing
  • Documentation of efforts when evidence isn’t available
  • Alternative evidence strategies when traditional corroboration isn’t possible

3. Strategic Hearing Approach

  • Direct examination techniques that elicit clear, responsive answers
  • Preparation for cross-examination that might focus on responsiveness
  • Record development that demonstrates good faith efforts to obtain evidence

Long-Term Practice Changes

Documentation Requirements

Every case file should now include:

  • Evidence collection log showing what was requested and when
  • Explanation letters for unavailable evidence
  • Cultural competency notes explaining client’s communication style

Client Education

Practitioners must educate clients about:

  • American courtroom expectations for direct answers
  • The importance of saying “I don’t know” rather than being evasive
  • How their demeanor will be evaluated alongside their words

Circuit Court Implications

The Coming Appeals

G-C-I- will likely face challenges in various circuits, particularly:

Ninth Circuit

Has historically been more protective of asylum seekers and may scrutinize the evasiveness standard for cultural bias.

Third Circuit

Has required more specific procedures for corroboration requirements and may push back on the “independent basis” holding.

Second Circuit

Has been more deferential to BIA decisions but has also emphasized trauma-informed approaches.

Constitutional Questions

The decision may raise Due Process concerns:

  • Notice requirements: Should applicants be warned that evasiveness affects credibility?
  • Cultural competency: Does the standard discriminate against certain cultural communication styles?
  • Trauma considerations: Should trauma responses be protected from credibility penalties?

The Broader Policy Context

Post-2024 Immigration Environment

This decision comes amid broader efforts to strengthen immigration enforcement and raise barriers for asylum seekers. It reflects a judicial philosophy that emphasizes:

  • Burden-shifting to applicants
  • Skepticism of asylum claims
  • Procedural barriers rather than substantive changes

International Law Considerations

The decision may conflict with international refugee law principles:

  • Benefit of the doubt standards in UNHCR guidelines
  • Non-refoulement obligations under international treaties
  • Trauma-informed approaches recommended by international bodies

What Immigration Lawyers Need to Know Right Now

Immediate Checklist

  1. Review pending cases for potential corroboration issues
  2. Enhance client preparation protocols to address responsiveness
  3. Update evidence gathering procedures to be more comprehensive
  4. Prepare alternative arguments when traditional evidence isn’t available

Red Flags to Watch For

  • Clients who give circuitous answers to direct questions
  • Cultural communication patterns that might appear evasive
  • Trauma responses that could be misinterpreted as lack of candor
  • Missing evidence that could have been reasonably obtained

Strategic Considerations

When to Settle vs. Fight

G-C-I- makes fighting credibility determinations even harder. Practitioners should consider:

  • Alternative forms of relief that don’t require credibility findings
  • Voluntary departure in cases with weak corroboration
  • Administrative closure where possible to buy time for evidence gathering

Appeal Strategies

When appealing adverse decisions post-G-C-I-:

  • Cultural expert testimony to explain communication patterns
  • Medical evidence documenting trauma-related behaviors
  • Procedural challenges to evasiveness findings lacking specific examples

The Bottom Line: A New Era in Immigration Law

Matter of G-C-I- represents more than just another BIA decision- it’s a fundamental shift in how Immigration Courts evaluate protection claims. By expanding credibility analysis to include witness behavior and creating independent corroboration requirements, the BIA has raised the bar significantly for asylum seekers and their attorneys.

For practitioners, this decision demands immediate changes in case preparation, evidence gathering, and courtroom strategy. The days of relying primarily on client testimony are over; comprehensive corroboration and meticulous witness preparation are now essential for success.

Most importantly, G-C-I- reflects broader policy trends that emphasize skepticism over protection, procedure over substance, and burden-shifting over benefit of the doubt. Understanding these trends —and adapting to them —will be crucial for effective representation in the new immigration law landscape.

This analysis was prepared on August 19, 2025, the same day Matter of G-C-I- was decided. As circuit courts begin to interpret and apply this decision, additional developments are expected. Immigration practitioners should monitor circuit court decisions closely and consider the unique dynamics in their jurisdictions when implementing the strategies discussed above.

Posted in Asylum, BIA, bia-credibility-corroboration-gci-2025, Credibility and Corroboration, withholding of removal | Leave a comment