The Record: Every Board of Immigration Appeals Precedent Since January 2025

Posted on October 9, 2026 by Mike Baker

This page is the working record behind my essay on the Board of Immigration Appeals. It lists every precedent the Board and the Attorney General have published since January 31, 2025, links each one to the official decision, and marks the ones I analyzed when they came down. It is current through October 9, 2026. I will update it each month.

Jason A. Cade, the J. Alton Hosch Professor of Law at the University of Georgia School of Law, catalogued the first 100 of these decisions in Welcome to the Trump Administration’s Board of Immigration Appeals. The Immigrant Always Loses., published September 25, 2026 in the Yale Law Journal Forum, the online section of the Yale Law Journal. His count stopped at Matter of Orozco Becerra, decided in late April 2026. The Board did not stop. Everything after his cutoff is listed here too.

The count

165precedents published in Volumes 29 and 30, through October 9, 2026

2decided for the noncitizen, both on narrow procedural grounds

65precedents after Cade’s cutoff; none decided for the noncitizen

How to read the count. A precedent is a decision the Board or the Attorney General publishes as binding on every immigration judge and on DHS. The Board publishes only a small share of the appeals it decides; these are the decisions that set the rules. “Against” means the government prevailed on the question the decision answers. “Narrow win” means the noncitizen prevailed on a procedural point without winning relief. “Against, with a limit” means the government prevailed, but the decision also states a rule that helps respondents. A loss for the noncitizen does not mean the Board decided the case wrongly; some of these respondents had serious criminal records or weak claims. The count measures something else: where the Board chose to make law, and in which direction. The total is a defined cohort of substantive precedents. It leaves out attorney-discipline cases, visa-petition decisions, Attorney General referral orders, and an Administrative Appeals Office ruling, all listed at the bottom of this page.

Outcomes for the noncitizen, January 2025 to October 2026

Cade coded his 100. I coded the 65 that followed from the official headnotes; four of those contain a limited statement favorable to respondents, shown in the tables below. Attorney-discipline and visa-petition decisions are not counted.

Where the precedents fall

How fast the Board is publishing (precedents per month, approximate)

Volume 27 ran from April 2017 to May 2020 and holds 98 decisions over about 37 months, per EOIR’s own foreword. Volume 29 ran from January 2025 to August 2026 and used 155 decision numbers over about 19 months. Volume 30 opened in September 2026 and has published 19 decisions through October 9.

Who sits on the Board now, by the Attorney General who first appointed each member

Source: EOIR’s Board roster (updated July 27, 2026), 15 permanent and 4 temporary members. Seventeen of the nineteen biographies list prior service as government immigration counsel, a federal immigration litigator, or a prosecutor. One lists immigrant-side practice.

Then and now: the Seventh Circuit cases

Twenty years ago Judge Richard Posner and his colleagues in Chicago reviewed the Board and found the same failures this record shows. The left column links to the opinions. The right column links to the current precedents that raise the same problem.

Then	What the court found	Now
Gonzales-Gomez v. Achim, 441 F.3d 532 (7th Cir. 2006)	The government read “aggravated felony” by state law when that hurt the noncitizen and by federal law when that hurt him. Posner: the only consistency was that the alien always loses.	Boye (late state sentence clarification rejected), Choc-Tut (no deference to state bail), De Jesus-Platon (state vacatur discounted)
Lopez v. Gonzales, 549 U.S. 47 (2006)	The Supreme Court resolved the split Posner’s way and recorded that the Board had switched its position in 2002 to the one that removed people.	After Loper Bright (2024), courts again decide statutory meaning themselves.
Niam v. Ashcroft, 354 F.3d 652 (7th Cir. 2004)	An expert from Loyola University Chicago was excluded while anonymous State Department reports got great weight. The spirit of Daubert applies, but a stricter filter than the courts use would be odd.	A-A-R-, D-J-L-, G-M-I-, H-L-S-M-
Yi-Tu Lian v. Ashcroft, 379 F.3d 457 (7th Cir. 2004)	A CAT claim about Chinese detention camps was denied while a mass of torture evidence went unmentioned. The judge owed the claim a responsible analysis.	S-S- and W-F- (Haitian prisons), and the third-country removals at issue in D.V.D., below
Benslimane v. Gonzales, 430 F.3d 828 (7th Cir. 2005)	The court had reversed the Board in 40 percent of 136 merits cases that year. A marriage-based route to status was defeated by procedure. Posner placed the power of correction in DHS and the Justice Department.	Arevalo-Vargas (children aged out during a six-year appeal), Medina Madrid, Pinzon Rozo

How the Board got here

Year	Event
1940	The Attorney General creates the Board by regulation. Congress never has. It sits inside the Justice Department.
1996	Congress passes, and President Clinton signs, the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act. They expand the list of aggravated felonies and apply it to old convictions, require detention for broad classes of people, and abolish the old section 212(c) waiver. My post IIRIRA at 28 traces that history.
1999	Attorney General Janet Reno’s streamlining rule lets a single Board member affirm an immigration judge without an opinion. 64 Fed. Reg. 56135 (Oct. 18, 1999).
2002	Attorney General Ashcroft cuts the Board from 23 authorized seats (19 sitting) to 11, expands single-member affirmances, and limits review of judges’ fact findings to clear error. 67 Fed. Reg. 54878 (Aug. 26, 2002).
2004 to 2006	The Seventh Circuit’s run of remands: Niam, Lian, Benslimane, Gonzales-Gomez. Other circuits say the same.
2006	Attorney General Gonzales announces reform measures for the immigration courts and the Board. The Supreme Court decides Lopez.
2008	The Justice Department’s Inspector General reports that political and ideological affiliations were weighed in hiring immigration judges and Board members.
2018 to 2020	Attorney General certifications reshape protection law: A-B-, L-E-A-, Negusie.
2021	Attorney General Garland vacates A-B- and L-E-A- and stays Negusie. By January 2025 the Board has 28 seats.
2025	The Board is cut to 15 seats (90 Fed. Reg. 15525) and its Biden appointees are removed. Volume 29 begins January 31. The Attorney General restores A-B-, L-E-A-, and Negusie.
2026	Cade’s essay, September 25. The Supreme Court’s D.V.D. order, September 29. Volume 30 begins in September.

In the federal courts

Third-country removals: D.V.D.

A class of people with final removal orders challenged DHS guidance that lets the government deport them to countries never named in their cases without notice or a chance to raise a fear of torture there. The district court ruled for the class. The First Circuit affirmed in substantial part on September 18, 2026 (No. 26-1212). On September 29, the Supreme Court stayed that judgment, granted certiorari, and set argument for December (No. 26-426). The order gives no reasons. Its fourth question presented reads: “Such other questions that the Government determines are appropriate.” For a sharp account of why the order troubles even those who find the merits difficult, see Steve Vladeck’s analysis. My earlier post on these removals is here.

Detention without bond

The Board’s ruling in Yajure Hurtado reaches people arrested in the interior who entered without inspection years or decades ago, whatever their family ties, work history, or record. The circuits have split over the statute it rests on, 8 U.S.C. § 1225(b)(2)(A). In Barbosa da Cunha v. Freden, No. 25-3141 (2d Cir. Apr. 28, 2026), the Second Circuit held that the statute requires both “applicant for admission” status and present “seeking admission,” so longtime interior residents get bond hearings under § 1226(a). The Fifth and Eighth Circuits side with the Board. The Supreme Court granted certiorari on October 1, 2026 in Rhoney v. Barbosa da Cunha, No. 26-104. My analysis: Yajure Hurtado and Cunha.

Right to counsel and appellate review

In A-K-R- the Board adopted the dissent in the Fourth Circuit’s Rodriguez-Solis v. Blanche, 177 F.4th 266 (4th Cir. 2026), and applied it everywhere outside that circuit (my analysis). In Amica Center for Immigrant Rights v. EOIR (D.D.C. Mar. 8, 2026), the district court vacated the core of the February 2026 appellate rule; EOIR is reissuing it through notice and comment.

The full record

Each decision name links to the official EOIR text. “My post” links to my analysis when I wrote one. Summaries are mine, drawn from the Board’s headnotes; read the decision before relying on it.

After Cade’s cutoff: 65 precedents, newest first

Protection claims (30)

Decision	What it holds	Result for the noncitizen	Analysis
Matter of B-S-A-N- 30 I&N Dec. 145 (BIA 2026) · ID 4259	Judges should generally deny asylum, withholding, and CAT to nationals of 40 listed safe countries; EU citizens presumptively ineligible for asylum in discretion.	Against
Matter of M-R-I- 30 I&N Dec. 137 (BIA 2026) · ID 4258	Returning home on advance parole abandons asylum, withholding, and CAT protection absent compelling reasons.	Against
Matter of G-R-B- 30 I&N Dec. 102 (BIA 2026) · ID 4252	A judge may pretermit asylum without any DHS motion.	Against
Matter of V-S-A- 30 I&N Dec. 37 (BIA 2026) · ID 4244	Redacted declarations from other cases usable for credibility without cross-examination.	Against
Matter of S-K-E- 30 I&N Dec. 27 (BIA 2026) · ID 4242	No prejudice shown on service, late filings, or expert scope; CAT denied.	Against
Matter of A-E-V-M- 30 I&N Dec. 20 (BIA 2026) · ID 4241	Maduro's removal is a change in Venezuelan country conditions; remand.	Against
Matter of A-Q-R-K- 29 I&N Dec. 865 (BIA 2026) · ID 4239	Grant of asylum to an Afghan who feared the Taliban reversed on credibility.	Against
Matter of H-I-A-H- 29 I&N Dec. 823 (BIA 2026) · ID 4231	Favorable credibility finding remanded; relocation to be reconsidered.	Against
Matter of I-U-V- 29 I&N Dec. 816 (BIA 2026) · ID 4229	Harm to minors judged by age and cumulative effect; claim still fails.	Against, with a limit
Matter of I-S-M- 29 I&N Dec. 811 (BIA 2026) · ID 4228	Adverse credibility on identity affirmed.	Against
Matter of L-F-R- 29 I&N Dec. 787 (BIA 2026) · ID 4224	Unpaid annual asylum fee: asylum pretermitted, but not withholding or CAT.	Against, with a limit
Matter of A-G-O-F- 29 I&N Dec. 772 (BIA 2026) · ID 4221	"Brazilian children" not cognizable; protection finding reversed.	Against
Matter of H-L-S-M- 29 I&N Dec. 767 (BIA 2026) · ID 4220	CAT grant reversed despite expert testimony on corruption.	Against
Matter of N-E-R-S- 29 I&N Dec. 753 (BIA 2026) · ID 4217	DHS need not produce the ACA's implementing instrument.	Against
Matter of E-A-R-M- 29 I&N Dec. 746 (BIA 2026) · ID 4216	An oral DHS pretermission motion gives enough notice of third-country removal.	Against
Matter of R-A-N- 29 I&N Dec. 739 (BIA 2026) · ID 4215	Russian conscription is not persecution without a protected-ground nexus.	Against
Matter of T-D-E- 29 I&N Dec. 732 (BIA 2026) · ID 4213	Candor about past lies cannot alone support a credibility finding.	Against
Matter of C-L-R- 29 I&N Dec. 726 (BIA 2026) · ID 4212	Safeguards for an incompetent applicant held adequate; claim denied.	Against
Matter of G-L-C- 29 I&N Dec. 717 (BIA 2026) · ID 4210	Pennsylvania drug-delivery conviction particularly serious; CAT denied.	Against
Matter of T-A-G- 29 I&N Dec. 715 (BIA 2026) · ID 4209	Judge erred in refusing DHS's motion to pretermit over collateral relief.	Against
Matter of P-A-C- 29 I&N Dec. 708 (BIA 2026) · ID 4208	A withholding grant can support denying asylum in discretion.	Against
Matter of A-C-M- 29 I&N Dec. 703 (BIA 2026) · ID 4207	No evidentiary hearing on the safe-third-country bar absent individualized-risk evidence.	Against	My post
Matter of Y-H-L- 29 I&N Dec. 698 (BIA 2026) · ID 4206	Corroboration of a forced abortion required; reconsideration denied.	Against
Matter of S-E-M-Z- 29 I&N Dec. 680 (BIA 2026) · ID 4203	Social distinction measured countrywide, not by neighborhood.	Against
Matter of J-O-A- 29 I&N Dec. 672 (BIA 2026) · ID 4202	Health care fraud is particularly serious; CAT denied.	Against
Matter of A-H-D- 29 I&N Dec. 642 (BIA 2026) · ID 4195	Three days' detention with one beating is not persecution.	Against
Matter of L-A-D- 29 I&N Dec. 634 (BIA 2026) · ID 4194	A group defined by a schizoaffective diagnosis is not cognizable.	Against
Matter of V-A-B- 29 I&N Dec. 621 (BIA 2026) · ID 4192	"Married Mexican women unable to leave their relationship" not cognizable.	Against	My post
Matter of C-P-Y- 29 I&N Dec. 610 (BIA 2026) · ID 4191	Serious nonpolitical crime bar measured from the most recent arrival.	Against	My post
Matter of J-E-L- 29 I&N Dec. 605 (BIA 2026) · ID 4190	CAT denied; no clear probability of gang or cartel torture.	Against

Detention and bond (10)

Decision	What it holds	Result for the noncitizen	Analysis
Matter of M-S-V- 30 I&N Dec. 130 (BIA 2026) · ID 4257	Bond denied: driving a truck without a valid commercial license shows danger; an uncertain sponsor does not offset flight risk.	Against
Matter of Morales Cuxun 30 I&N Dec. 121 (BIA 2026) · ID 4255	Bond denied on DUI history and a recent domestic arrest.	Against
Matter of Y-M-B- 30 I&N Dec. 99 (BIA 2026) · ID 4251	Asylum fraud and an asylum denial establish flight risk.	Against
Matter of Kamalov 30 I&N Dec. 34 (BIA 2026) · ID 4243	Judge erred in finding no danger.	Against
Matter of W-F-D- 29 I&N Dec. 854 (BIA 2026) · ID 4237	No custody jurisdiction after a final removal order.	Against
Matter of A-W-M-K- 29 I&N Dec. 805 (BIA 2026) · ID 4227	Bond denied; a USCIS denial is evidence of flight risk.	Against
Matter of A-L-S- 29 I&N Dec. 794 (BIA 2026) · ID 4225	Flight risk includes likely noncompliance with future orders.	Against
Matter of Vizcaino Aybar 29 I&N Dec. 736 (BIA 2026) · ID 4214	Bond venue lies with the court covering the place of detention.	Against, with a limit
Matter of N-A-G-C- 29 I&N Dec. 662 (BIA 2026) · ID 4200	A former unaccompanied child with approved SIJ still gets no bond hearing.	Against	My post
Matter of Martinez-Rodriguez 29 I&N Dec. 656 (BIA 2026) · ID 4198	Bond denied on a false-imprisonment conviction and arrests.	Against

Criminal history, discretion, and fraud (11)

Decision	What it holds	Result for the noncitizen	Analysis
Matter of Cornejo-Aguilar 30 I&N Dec. 105 (BIA 2026) · ID 4253	Permanent-resident cancellation denied in discretion.	Against
Matter of Mendez Maldonado 30 I&N Dec. 62 (BIA 2026) · ID 4247	Admitted cocaine use bars adjustment; 1945 and 1957 precedents overruled.	Against
Matter of A-V-O- 30 I&N Dec. 44 (BIA 2026) · ID 4245	An aggravated felon is ineligible to citizenship and inadmissible; Kanga overruled.	Against	My post
Matter of Boye 29 I&N Dec. 826 (BIA 2026) · ID 4232	A Georgia sentence clarification entered six years later is not valid for immigration purposes.	Against
Matter of L-L-R- 29 I&N Dec. 799 (BIA 2026) · ID 4226	Paying a smuggler to bring one's own child bars good moral character.	Against
Matter of Lopez Rico 29 I&N Dec. 780 (BIA 2026) · ID 4223	Taking the Fifth allows adverse inferences; unlawful voting weighs heavily.	Against	My post
Matter of Y-S-P-T- 29 I&N Dec. 776 (BIA 2026) · ID 4222	Section 212(h) waiver and adjustment denied.	Against
Matter of Best 29 I&N Dec. 723 (BIA 2026) · ID 4211	Section 212(h) grant reversed; family hardship not extreme.	Against
Matter of Mills 29 I&N Dec. 668 (BIA 2026) · ID 4201	Grant of permanent-resident cancellation reversed for criminal history.	Against
Matter of Richards 29 I&N Dec. 658 (BIA 2026) · ID 4199	Lack of candor about criminal history weighs heavily against cancellation.	Against
Matter of Germain 29 I&N Dec. 648 (BIA 2026) · ID 4196	Cancellation denied; uncharged arrests and minimizing weigh against.	Against

Hardship (1)

Decision	What it holds	Result for the noncitizen	Analysis
Matter of Lopez-Davila 29 I&N Dec. 763 (BIA 2026) · ID 4219	Leaving a citizen child in others' care is not itself exceptional hardship.	Against

Procedure (13)

Decision	What it holds	Result for the noncitizen	Analysis
Matter of C-M-H-H- 30 I&N Dec. 124 (BIA 2026) · ID 4256	No retained Board jurisdiction after remand; new decision without a hearing allowed.	Against
Matter of M-K- 30 I&N Dec. 84 (BIA 2026) · ID 4250	Reopening denied; due process claim called speculative.	Against
Matter of K-K-U-J- 30 I&N Dec. 81 (BIA 2026) · ID 4249	Sua sponte reopening of an in absentia order reversed.	Against
Matter of Diji 30 I&N Dec. 1 (BIA 2026) · ID 4240	Notice to the most recent address suffices; G-Y-R- overruled.	Against	My post
Matter of R-P-L- 29 I&N Dec. 859 (BIA 2026) · ID 4238	Civil penalty for failing to depart under voluntary departure upheld.	Against
Matter of M-M-L-J- 29 I&N Dec. 843 (BIA 2026) · ID 4235	One motion to reopen in total; no tolling of the number bar.	Against
Matter of A-K-R- 29 I&N Dec. 839 (BIA 2026) · ID 4234	Only the ten-day floor protects the privilege of counsel; C-B- modified.	Against	My post
Matter of Delcarmen-Lara 29 I&N Dec. 830 (BIA 2026) · ID 4233	Travel on advance parole is a departure; Arrabally overruled.	Against	My post
Matter of Momplaisir 29 I&N Dec. 820 (BIA 2026) · ID 4230	A G-24 certification authenticates the I-213 and I-94.	Against
Matter of L-R-M-C- & V-A-M-M- 29 I&N Dec. 757 (BIA 2026) · ID 4218	Ineffective-assistance reopening requires a bar complaint or explanation.	Against
Matter of Herrera-Nunez 29 I&N Dec. 695 (BIA 2026) · ID 4205	Equities gained after a removal order do not warrant sua sponte reopening.	Against
Matter of Herrera-Nunez 29 I&N Dec. 691 (BIA 2026) · ID 4204	Ask DHS for a stay before asking the Board.	Against
Matter of I-B-M-S- 29 I&N Dec. 628 (BIA 2026) · ID 4193	Late venue changes disfavored; judicial neutrality runs to both parties.	Against, with a limit

Cade’s first 100, January 2025 to April 2026

Grouped by Cade’s five categories. His appendix gives his own account of each case.

Protection claims (36)

Decision	What it holds	Result for the noncitizen	Analysis
Matter of C-A-R-R- 29 I&N Dec. 13 (BIA 2025) · ID 4087	An I-589 may not be deemed abandoned solely for lack of a declaration; incomplete applications may be.	Narrow win
Matter of O-A-R-G- 29 I&N Dec. 30 (BIA 2025) · ID 4090	Former-member social groups narrowed; CAT acquiescence demands more than unable or unwilling.	Against
Matter of A-A-R- 29 I&N Dec. 38 (BIA 2025) · ID 4091	El Salvador state-of-exception detention not shown to be torture.	Against
Matter of M-S-I- 29 I&N Dec. 61 (BIA 2025) · ID 4094	Private violence plus doubt that police will help does not prove CAT acquiescence.	Against
Matter of N-N-B- 29 I&N Dec. 79 (BIA 2025) · ID 4098	CAT grant reversed: the judge asked whether torture could occur, not whether it was more likely than not.	Against
Matter of C-I-R-H- & H-S-V-R- 29 I&N Dec. 114 (BIA 2025) · ID 4105	Nexus requires more than statistical likelihood or coincidence.	Against
Matter of A-A-F-V- 29 I&N Dec. 118 (BIA 2025) · ID 4106	No individualized torture risk in Salvadoran detention for a bisexual deportee with gang tattoos.	Against
Matter of E-Z- 29 I&N Dec. 123 (BIA 2025) · ID 4107	CAT grant reversed; predicted harm in Russia called speculative.	Against
Matter of S-S- 29 I&N Dec. 136 (BIA 2025) · ID 4109	CAT deferral reversed; Haitian prison conditions not shown to be intended as torture.	Against
Matter of K-E-S-G- 29 I&N Dec. 145 (BIA 2025) · ID 4111	A social group defined by sex, or sex and nationality, alone is not cognizable.	Against
Matter of G-C-I- 29 I&N Dec. 176 (BIA 2025) · ID 4116	Evasive testimony supports adverse credibility; missing corroboration can defeat a claim alone.	Against	My post
Matter of O-Y-A-E- 29 I&N Dec. 190 (BIA 2025) · ID 4118	Old threats do not establish an individualized risk of torture.	Against
Matter of R-E-R-M- & J-D-R-M- 29 I&N Dec. 202 (A.G. 2025) · ID 4121	L-E-A- (2021) overruled; the 2019 restriction on family social groups restored.	Against
Matter of S-S-F-M- 29 I&N Dec. 207 (A.G. 2025) · ID 4123	A-B- (2021) overruled, A-B- (2018) restored, A-R-C-G- overruled.	Against
Matter of H-A-A-V- 29 I&N Dec. 233 (BIA 2025) · ID 4127	Judges may pretermit protection claims without a full evidentiary hearing.	Against	My post
Matter of J-A- 29 I&N Dec. 253 (BIA 2025) · ID 4130	Uzbek prosecution and detention not shown to mean torture.	Against
Matter of L-A-L-T- 29 I&N Dec. 269 (BIA 2025) · ID 4133	Perceived membership fails when the underlying group is not cognizable.	Against
Matter of Negusie 29 I&N Dec. 285 (A.G. 2025) · ID 4135	No duress exception to the persecutor bar.	Against
Matter of C-I-G-M- & L-V-S-G- 29 I&N Dec. 291 (BIA 2025) · ID 4137	Safe-third-country bar decided first; respondent carries the burden.	Against	My post
Matter of K-S-H- 29 I&N Dec. 307 (BIA 2025) · ID 4139	One police report does not show the government unable or unwilling to protect.	Against
Matter of W-F- 29 I&N Dec. 319 (BIA 2025) · ID 4141	CAT grant reversed; Haitian prison reports called anecdotal.	Against
Matter of J-C-A-G- 29 I&N Dec. 331 (BIA 2025) · ID 4143	A cartel cooperator did not show a clear probability of torture.	Against
Matter of L-A-G-B- 29 I&N Dec. 343 (BIA 2025) · ID 4146	CAT predictions built on a series of suppositions are clearly erroneous.	Against
Matter of N-P-A- 29 I&N Dec. 347 (BIA 2025) · ID 4147	Moldovan activist's fear held not well founded.	Against
Matter of L-T-A- 29 I&N Dec. 362 (BIA 2025) · ID 4151	A right to live and work indefinitely abroad is firm resettlement.	Against
Matter of E-M-F-S- 29 I&N Dec. 379 (BIA 2026) · ID 4154	Death threats rarely amount to persecution without immediate ability to act.	Against
Matter of D-G-B-L- 29 I&N Dec. 392 (BIA 2026) · ID 4156	No duress exception to the serious nonpolitical crime bar.	Against
Matter of S-M-H- 29 I&N Dec. 412 (BIA 2026) · ID 4158	Written warnings on the I-589 suffice for a frivolousness finding.	Against
Matter of G-M-I- 29 I&N Dec. 431 (BIA 2026) · ID 4161	Expert opinions resting on anecdotal facts lose weight.	Against
Matter of F-B-A- 29 I&N Dec. 456 (BIA 2026) · ID 4165	Relocation finding reversed; children's reporting barriers do not extend to adults.	Against
Matter of D-J-L- 29 I&N Dec. 485 (BIA 2026) · ID 4168	An expert seen as resistant to contrary evidence deserves little weight.	Against
Matter of R-B-E- 29 I&N Dec. 499 (BIA 2026) · ID 4170	Changed circumstances rebut the presumption; access-device fraud is particularly serious.	Against
Matter of Z-R-C-N- 29 I&N Dec. 523 (BIA 2026) · ID 4175	No ineffective-assistance claim against a non-lawyer; daughters' approved SIJ too speculative.	Against
Matter of D-G-E-A- & N-G-G-E- 29 I&N Dec. 570 (BIA 2026) · ID 4183	Opposition to gangs is not a political opinion.	Against
Matter of R-A-U- 29 I&N Dec. 582 (BIA 2026) · ID 4184	Judge clearly erred in finding the applicant credible.	Against
Matter of E-N-N- 29 I&N Dec. 586 (BIA 2026) · ID 4185	Credibility and pattern-or-practice findings reversed.	Against	My post

Detention and bond (15)

Decision	What it holds	Result for the noncitizen	Analysis
Matter of Choc-Tut 29 I&N Dec. 48 (BIA 2025) · ID 4092	No deference owed to a state court's custody or bail order.	Against
Matter of Q. Li 29 I&N Dec. 66 (BIA 2025) · ID 4095	Warrantless arrest on arrival means § 235(b) detention and no bond.	Against
Matter of Beltrand-Rodriguez 29 I&N Dec. 76 (BIA 2025) · ID 4097	Bond denied as a danger to the community.	Against
Matter of E-Y-F-G- 29 I&N Dec. 103 (BIA 2025) · ID 4102	A withholding grant pending on appeal does not require release on bond.	Against
Matter of C-M-M- 29 I&N Dec. 141 (BIA 2025) · ID 4110	Immigration violation history shows a flight risk no bond can cure.	Against
Matter of Akhmedov 29 I&N Dec. 166 (BIA 2025) · ID 4113	Address discrepancies and late address filings show flight risk.	Against
Matter of Salas Pena 29 I&N Dec. 173 (BIA 2025) · ID 4115	A recent trafficking arrest, without conviction, shows danger.	Against
Matter of Dobrotvorskii 29 I&N Dec. 211 (BIA 2025) · ID 4124	A sponsor is relevant to flight risk; judges weigh all evidence on custody.	Against
Matter of Yajure Hurtado 29 I&N Dec. 216 (BIA 2025) · ID 4125	No bond jurisdiction for anyone present without admission.	Against	My post
Matter of Cotrufo 29 I&N Dec. 264 (BIA 2025) · ID 4132	Recent sexual-offense convictions show danger.	Against
Matter of Dubon Miranda 29 I&N Dec. 335 (BIA 2025) · ID 4144	Bond denied; danger not disproved.	Against
Matter of Rodriguez Pena 29 I&N Dec. 358 (BIA 2025) · ID 4150	Judge erred in finding no danger.	Against
Matter of Ghanbari 29 I&N Dec. 376 (BIA 2025) · ID 4153	Teenage leafleting counted as material support; mandatory detention.	Against
Matter of Z-N-L- 29 I&N Dec. 511 (BIA 2026) · ID 4172	Residence discrepancy shows flight risk.	Against
Matter of Shentu 29 I&N Dec. 595 (BIA 2026) · ID 4188	An FBI letterhead memorandum gets significant weight in bond.	Against

Criminal history, discretion, and fraud (19)

Decision	What it holds	Result for the noncitizen
Matter of Baeza-Galindo 29 I&N Dec. 1 (BIA 2025) · ID 4085	Closeness in time alone does not make two moral-turpitude crimes a single scheme.	Against
Matter of De Jesus-Platon 29 I&N Dec. 7 (BIA 2025) · ID 4086	California § 1473.7 vacatur not shown to rest on a legal defect; remand denied.	Against
Matter of Dor 29 I&N Dec. 20 (BIA 2025) · ID 4088	Drug-schedule comparison runs at the time of conviction, not the time of removal.	Against
Matter of Bain 29 I&N Dec. 72 (BIA 2025) · ID 4096	Cancellation denied in discretion for recent, repeated crimes.	Against
Matter of Mayorga Ipina 29 I&N Dec. 110 (BIA 2025) · ID 4104	Virginia indecent exposure is a crime involving moral turpitude.	Against
Matter of Gonzalez Jimenez 29 I&N Dec. 129 (BIA 2025) · ID 4108	False Social Security numbers and tax filings weigh against discretion.	Against
Matter of Felix-Figueroa 29 I&N Dec. 157 (BIA 2025) · ID 4112	Respondent bears the realistic-probability burden on a drug-isomer mismatch.	Against
Matter of Garcia-Flores 29 I&N Dec. 230 (BIA 2025) · ID 4126	Judge exceeded authority by effectively finding the respondent innocent.	Against
Matter of McDonald 29 I&N Dec. 249 (BIA 2025) · ID 4129	Discretion denied for child-endangerment convictions.	Against
Matter of Frias Ulloa 29 I&N Dec. 259 (BIA 2025) · ID 4131	New Jersey drug statute divisible; fentanyl conviction counts.	Against
Matter of Jimenez-Ayala 29 I&N Dec. 325 (BIA 2025) · ID 4142	Cancellation denied for drug use and children's exposure.	Against
Matter of Kim 29 I&N Dec. 339 (BIA 2025) · ID 4145	Cancellation grant reversed; remorse and prison rehabilitation insufficient.	Against
Matter of Lema Mizhirumbay 29 I&N Dec. 351 (BIA 2025) · ID 4148	Safety violations causing two deaths weigh against cancellation.	Against
Matter of Palma-Olvera 29 I&N Dec. 355 (BIA 2025) · ID 4149	Two DWIs; good moral character presumption not overcome.	Against
Matter of M-C-C- 29 I&N Dec. 401 (BIA 2026) · ID 4157	Omitting Bosnian War service was material; fraud waiver denied.	Against
Matter of E-A-S-O- 29 I&N Dec. 422 (BIA 2026) · ID 4160	Juarez overruled: no presumption that a single misdemeanor is not particularly serious.	Against
Matter of Forjoe 29 I&N Dec. 463 (BIA 2026) · ID 4166	Agour overruled: fraud at adjustment cannot be waived under § 237(a)(1)(H).	Against
Matter of Valenzuela Gallardo 29 I&N Dec. 536 (BIA 2026) · ID 4178	California accessory conviction is an obstruction-of-justice aggravated felony.	Against
Matter of M-K- 29 I&N Dec. 556 (BIA 2026) · ID 4182	Secretary of State letter suffices for removability; misrepresentation found; waiver denied.	Against

Hardship (3)

Decision	What it holds	Result for the noncitizen
Matter of Buri Mora 29 I&N Dec. 186 (BIA 2025) · ID 4117	No exceptional hardship though the children have disabilities and will remain in the U.S.	Against
Matter of Arevalo-Vargas 29 I&N Dec. 519 (BIA 2026) · ID 4174	Children aged out while the government's appeal sat for over six years; hardship also rejected.	Against
Matter of Pelagio Mendoza 29 I&N Dec. 542 (BIA 2026) · ID 4179	Testimony on mental health generally insufficient when expert proof could be produced.	Against

Procedure (27)

Decision	What it holds	Result for the noncitizen	Analysis
Matter of Iskandarani 29 I&N Dec. 26 (BIA 2025) · ID 4089	The 30-day appeal clock runs from the oral decision, not a later memorandum.	Against
Matter of F-B-G-M- & J-E-M-G- 29 I&N Dec. 52 (BIA 2025) · ID 4093	Email notice of a briefing schedule through ECAS is sufficient notice.	Against
Matter of D-E-B- 29 I&N Dec. 83 (BIA 2025) · ID 4099	A supplement raising new claims counts as a separate motion to reopen.	Against
Matter of Lopez-Ticas 29 I&N Dec. 90 (BIA 2025) · ID 4100	A defective notice to appear does not justify withdrawing pleadings.	Against
Matter of B-N-K- 29 I&N Dec. 96 (BIA 2025) · ID 4101	Administrative closure: resolving the merits comes first; pending TPS generally not enough.	Against
Matter of Roque-Izada 29 I&N Dec. 106 (BIA 2025) · ID 4103	No termination to pursue Cuban Adjustment Act relief on speculative parole.	Against
Matter of Garcia Martinez 29 I&N Dec. 169 (BIA 2025) · ID 4114	A non-detained respondent with private counsel is presumed able to pay filing fees.	Against
Matter of J-A-F-S- 29 I&N Dec. 195 (BIA 2025) · ID 4119	No continuance for speculative eligibility for new relief.	Against
Matter of J-H-M-H- 29 I&N Dec. 278 (BIA 2025) · ID 4134	Judges are not bound by party stipulations, including a DHS concession on CAT.	Against
Matter of J-A-N-M- 29 I&N Dec. 287 (BIA 2025) · ID 4136	No discretionary termination of withholding-only proceedings.	Against
Matter of Cahuec Tzalam 29 I&N Dec. 300 (BIA 2025) · ID 4138	No administrative closure for a SIJ case facing visa delay.	Against
Matter of B-S-H- 29 I&N Dec. 313 (BIA 2025) · ID 4140	The VAWA reopening waiver reaches time limits, not number limits.	Against
Matter of Tepec-Garcia 29 I&N Dec. 371 (BIA 2025) · ID 4152	Termination without prejudice allowed when neither side appears and DHS offers no proof.	Narrow win
Matter of Laparra-DeLeon 29 I&N Dec. 389 (BIA 2026) · ID 4155	Laparra reinstated in the First Circuit; in absentia orders on a compliant hearing notice.	Against
Matter of Laurent Castro 29 I&N Dec. 419 (BIA 2026) · ID 4159	Judge must order removal in absentia rather than continue.	Against
Matter of Yadav 29 I&N Dec. 438 (BIA 2026) · ID 4162	Marriage to a citizen after a removal order does not warrant sua sponte reopening.	Against
Matter of L-S-C-R- 29 I&N Dec. 451 (BIA 2026) · ID 4164	Background-check remands are limited; new relief needs a new motion and fee.	Against
Matter of Ibarra-Vega 29 I&N Dec. 476 (BIA 2026) · ID 4167	No administrative closure for a U visa not available in the near future.	Against
Matter of Pinzon Rozo 29 I&N Dec. 507 (BIA 2026) · ID 4171	No continuance for an approved SIJ petitioner waiting on a visa.	Against
Matter of Medina Madrid 29 I&N Dec. 514 (BIA 2026) · ID 4173	Thirteen years of closure ended; a provisional waiver plan is not enough.	Against
Matter of Mercado-Martinez 29 I&N Dec. 529 (BIA 2026) · ID 4176	To reject an I-213 the judge must cite specific contrary evidence.	Against
Matter of Lopez-Orellana 29 I&N Dec. 533 (BIA 2026) · ID 4177	Notice-to-appear objection forfeited if not raised; proceed in absentia.	Against
Matter of Bolivar-Bolivar 29 I&N Dec. 548 (BIA 2026) · ID 4180	Neither side appears but alienage evidence is filed: proceed in absentia.	Against
Matter of A-M-Z-F- 29 I&N Dec. 551 (BIA 2026) · ID 4181	No right to a closing argument absent a due process violation.	Against
Matter of Santiago-Santiago 29 I&N Dec. 589 (BIA 2026) · ID 4186	DACA alone does not support termination over DHS opposition.	Against	My post
Matter of Arana Castillo 29 I&N Dec. 593 (BIA 2026) · ID 4187	Take pleadings when DHS counsel is absent; no termination.	Against
Matter of Orozco Becerra 29 I&N Dec. 600 (BIA 2026) · ID 4189	Children who miss a hearing: no closure; proceed in absentia.	Against

Published but not counted (4)

Decision	What it holds	Result for the noncitizen
Matter of Nwagwu 29 I&N Dec. 651 (BIA 2026) · ID 4197	Visa petition approval revoked for prior marriage fraud.	Not counted
Matter of Jones 29 I&N Dec. 850 (BIA 2026) · ID 4236	Attorney discipline.	Not counted
Matter of Cuber 30 I&N Dec. 59 (BIA 2026) · ID 4246	Attorney discipline.	Not counted
Matter of Sethi 30 I&N Dec. 112 (BIA 2026) · ID 4254	Attorney discipline (AI-fabricated citations).	Not counted

Also published in Volume 29 and excluded from Cade’s count: two Attorney General referral orders (29 I&N Dec. 201 and 206), an attorney-discipline case (Landers), a visa-petition remand (Jin), and an Administrative Appeals Office decision (Texperts). Interim Decision 4248 does not appear on EOIR’s Volume 30 index.

Method

Cade defines his cohort as the substantive precedents published from January 31, 2025 to April 29, 2026, and codes 98 against the noncitizen and two narrow procedural wins. I follow his five categories for every later decision. “Against” means the holding resolves the question presented against the noncitizen; a remand that sends a favorable ruling back for more scrutiny counts as against. Where a holding also states a rule that helps respondents, it is marked “Against, with a limit.” Counts of Board members come from EOIR’s published biographies.

Sources. EOIR, Volume 29; EOIR, Volume 30; EOIR, Volume 27 foreword; EOIR, Board roster; 67 Fed. Reg. 54878 (2002); Cade, Yale L.J. Forum (2026); Supreme Court order list, Sept. 29, 2026; D.V.D., 1st Cir. No. 26-1212.

Updates

October 9, 2026. Added Matter of B-S-A-N-, 30 I&N Dec. 145 (protection). It went against the noncitizen. Count now 165 precedents, 2 narrow wins.

October 7, 2026. Added Matter of M-S-V-, 30 I&N Dec. 130 (detention), and Matter of M-R-I-, 30 I&N Dec. 137 (protection). Both went against the noncitizen. Count now 164 precedents, 2 narrow wins.

October 4, 2026. Page published. Volumes 29 and 30 current through 30 I&N Dec. 124 (Interim Decision 4256).

This page is legal commentary and a research reference, not legal advice, and reading it does not create an attorney-client relationship. Immigration law changes quickly. If you are in removal proceedings, consult a licensed immigration attorney about your own case. Law Offices of Michael D. Baker.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Asylum, BIA, Board of Immigration Appeals | Tagged BIA precedent, Board of Immigration Appeals, D.V.D. v. DHS, EOIR, Jason Cade, Loper Bright, Richard Posner, Seventh Circuit, third-country removal, Volume 29, Volume 30, Yajure Hurtado | Leave a comment

“The Alien Always Loses”: Posner’s Warning and the Board of Immigration Appeals Today

Posted on October 4, 2026 by Mike Baker

The mirror image

An Illinois court convicted Rafael Gonzales-Gomez, a lawful permanent resident of the United States, of possessing a small amount of cocaine. Illinois called the crime a felony. Federal law called the same conduct a misdemeanor. The label mattered more than the drug. An “aggravated felony,” a category Congress had expanded sharply in 1996, would strip him of cancellation of removal, the last form of discretionary relief available to a green card holder. The immigration judge and the Board of Immigration Appeals chose the state label. A federal judge in Chicago chose the federal one. The government appealed.

Judge Richard Posner wrote the Seventh Circuit’s opinion in Gonzales-Gomez v. Achim, 441 F.3d 532 (7th Cir. 2006). He saw what the government had hoped nobody would see. When a state treats sexual abuse of a minor as a misdemeanor, the government insists that federal law controls, and the offense becomes an aggravated felony. When a state treats simple possession as a felony, the government insists that state law controls, and the offense becomes an aggravated felony again. The method reversed. The result held. Posner reduced the whole dispute to a sentence:

“The only consistency that we can see in the government’s treatment of the meaning of ‘aggravated felony’ is that the alien always loses.”

Nine months later the Supreme Court agreed with him. In Lopez v. Gonzales, 549 U.S. 47 (2006), Justice Souter held that a state drug offense counts as a federal drug felony only if federal law punishes the conduct as a felony. The opinion also recorded how the Board got its answer. The immigration judge first ruled for Lopez. Then the Board changed its rule in Matter of Yanez-Garcia, 23 I&N Dec. 390 (BIA 2002), and the same judge reversed himself and ordered Lopez removed.

A word on the cast and the vocabulary. The Board of Immigration Appeals is the appeals body inside the Justice Department that reviews the decisions of immigration judges. Its published decisions bind every immigration court in the country. Posner used the statute’s word, alien. Professor Jason Cade, whose recent essay I discuss below, chose immigrant. I use noncitizen except when quoting. The word has changed over twenty years. The result has not.

Posner caught the tilt in a single term, “aggravated felony.” The government chose state law in one case and federal law in the next, whichever produced removal. This essay asks whether the habit survived twenty years. Since January 31, 2025, the Board and the Attorney General have published 162 precedent decisions. The noncitizen won two of them, both on narrow procedural grounds. The full list, with every decision linked, sits on the companion page to this essay. This essay counts through October 2, 2026. The companion page, updated through October 7, now lists 164; both additions also went against the noncitizen.

My argument runs in one line. The alien still loses, and the system increasingly dispenses with the hearings and explanations that could expose why. Posner’s court enforced a simple rule: an agency that takes a person’s home must explain itself. Every layer of review in this system was built to force that explanation. Each layer now explains less, or explains the same thing every time. A lopsided count of selected, published decisions does not prove that any single decision is wrong. It shows where to look, and the decisions themselves must carry the argument. That conclusion is my judgment, and the record below lets the reader test it.

The full record. Every one of the 162 precedents discussed here, with charts and a link to each decision, is on the companion page, updated monthly.

A Board built to be changed

Congress never created the Board of Immigration Appeals. The Attorney General did, by regulation, in 1940. The Board sits inside the Justice Department, its members serve at the Attorney General’s pleasure, and the Attorney General can take any case away from it and decide the case personally. Everything that follows grows from that design.

The harshness began with Congress. In 1996 President Clinton signed two laws, the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act, that rebuilt removal law. They swelled the list of aggravated felonies, cut the sentence that turns a theft or a crime of violence into one from five years to one, and applied the new definitions to convictions decades old. They required detention for broad classes of people with criminal records and abolished the old waiver that had let judges weigh a long life here against a past mistake. I traced that history in IIRIRA at 28. Three years later Attorney General Janet Reno began streamlining the Board itself. A 1999 rule, 64 Fed. Reg. 56135, let a single member affirm an immigration judge without a word of explanation.

In 2002 Attorney General John Ashcroft went much further. His final rule, 67 Fed. Reg. 54878 (Aug. 26, 2002), cut the Board from 23 authorized seats, 19 of them filled, to 11. It let a single member affirm an immigration judge without writing an opinion. It barred the Board from finding facts anew and limited its review of a judge’s findings to clear error. Paul Schmidt, a former chairman of the Board, later named the five members removed: himself, John Guendelsberger, Cecelia Espenoza, Lory Rosenberg, and Gustavo Villageliu. The appeals then went where the Board no longer would. EOIR’s own 2006 fact sheet reported that the share of Board decisions taken to federal court rose from a historical 5 percent to about 30 percent.

The federal courts felt the change first. In Benslimane v. Gonzales, 430 F.3d 828 (7th Cir. 2005), Posner counted. In the preceding year his court had reversed the Board, in whole or in part, in 40 percent of the 136 petitions it decided on the merits. He rejected the idea that judges disliked the nation’s immigration policy. The trouble, he wrote, lay elsewhere: “the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice.” He added that the problem predated the current administration, and he named the cure. “[T]he power of correction lies in the Department of Homeland Security, which prosecutes removal cases, and the Department of Justice, which adjudicates them.”

The Justice Department responded. In 2006 Attorney General Alberto Gonzales announced a package of reforms for the immigration courts and the Board. Two years later the Department’s Inspector General found that officials in the Attorney General’s office had weighed political and ideological affiliations in hiring immigration judges and Board members, career positions that civil service law protects from that kind of screening.

The next three administrations pulled the same levers in turn. The first Trump administration used the Attorney General’s referral power to rewrite asylum law: Matter of A-B- (2018) on domestic violence, Matter of L-E-A- (2019) on family-based claims, and Matter of Negusie (2020) on the persecutor bar. Attorney General Merrick Garland vacated A-B- and L-E-A- in 2021 and stayed Negusie. By January 2025 the Board had grown to 28 seats.

Then the second Trump administration reversed course again. A 2025 rule, 90 Fed. Reg. 15525, cut the Board to 15 seats, and all nine members appointed during the Biden administration were removed. The rule gave its reasons in the language of management: a larger Board had cost “cohesiveness” and “uniformity.” Attorney General Pamela Bondi restored A-B-, L-E-A-, and Negusie within months.

Read the whole sequence and one fact emerges. Since 1996 every administration, Democratic and Republican, has used the Attorney General’s control of the Board to move the law in its preferred direction. The Board’s law belongs to whoever holds that office.

Who decides now

The Board’s own roster, updated July 27, 2026, lists 19 members: 15 permanent and 4 temporary. Trump-era Attorneys General first placed 16 of them on the Board. Two date from the Bush administration. One remains from the Obama administration. In February I counted two Obama appointees out of eighteen members. Eight months later one remains.

The biographies tell a second story. Seventeen of the nineteen list prior service as government immigration counsel, as a federal immigration litigator, or as a prosecutor. One lists a career representing immigrants.

I name no members here, and I attribute no motive to any of them. The point concerns structure. A body that the Attorney General can fill, empty, and overrule at will decides cases the way the Attorney General wants them decided. Ashcroft understood that in 2002. Every Attorney General after him has understood it too.

The pressure falls on the trial judges too. Professor Cade’s essay, discussed below, reports three facts. The Justice Department has warned immigration judges that “statistically improbable outcome metrics” may draw scrutiny. It has fired or transferred about 141 of them. And it has advertised the job as “deportation judge.” Appellate review has always checked a judge’s reasoning. This checks the outcome. A judge who grants relief too often now risks the job, not just a reversal.

The control now reaches the trial bench and the referee. In February 2025 the Justice Department fired two assistant chief immigration judges by letter, with no charge and no hearing, and cited Article II of the Constitution as its authority. An administrative judge at the Merit Systems Protection Board (MSPB) ordered them reinstated. Congress created the MSPB in the Civil Service Reform Act of 1978 as an independent executive agency to hear federal employees’ appeals from removal. 5 U.S.C. §§ 1204, 7701. Its administrative judges are agency employees, not administrative law judges and not Article III judges. Their decisions go to a three-member Board, appointed by the President with Senate consent, and the Board’s decisions go to the Federal Circuit. 5 U.S.C. §§ 1201, 7703. In March 2026 the full Board reversed. It held that immigration judges are inferior officers whom the Attorney General may remove at will, and that the Board lacks jurisdiction when an agency invokes the Constitution to justify a firing. Jackler and Jaroch Consolidation v. Department of Justice, 2026 MSPB 3 (Mar. 20, 2026). The Federal Circuit has taken the appeal en banc.

Three months later the Supreme Court decided Trump v. Slaughter, No. 25-332 (June 29, 2026), which lets the President remove the heads of independent agencies at will. Its reasoning reaches the members of the MSPB, who by statute may be removed only for inefficiency, neglect of duty, or malfeasance, 5 U.S.C. § 1202(d), and who decide whether other federal firings were lawful. I traced that sequence in The Referee Problem. Attorneys General have always controlled the Board of Immigration Appeals. The new claim is control over the judges below it, and over the referee who would review their dismissal. An immigration judge who grants relief now works for an executive branch that also prosecutes the case, and the tribunal that would protect her job answers to the same President.

Then and now

On September 25, 2026, Jason A. Cade, the J. Alton Hosch Professor of Law at the University of Georgia School of Law, published Welcome to the Trump Administration’s Board of Immigration Appeals. The Immigrant Always Loses. in the Yale Law Journal Forum. His title echoes Posner without citing him. Cade catalogued the first 100 precedents of the current Board, from January 31, 2025 through April 29, 2026. He coded 98 against the noncitizen. The two exceptions turned on narrow procedural points, and the Board later hollowed out one of them. In about one case in five the noncitizen had no lawyer. The Attorney General designated 41 of the Board’s 97 decisions as precedent after the Board had issued them as unpublished rulings.

Cade’s essay confirms what this blog recorded one decision at a time. I wrote up G-C-I-, Yajure Hurtado, H-A-A-V-, E-N-N-, Santiago-Santiago, and others the week each decision issued. What Cade adds is the full count and the method. What the Seventh Circuit cases add is the proof that none of the underlying failures is new. Three pairs show it.

The expert and the State Department report. In Niam v. Ashcroft, 354 F.3d 652 (7th Cir. 2004), an immigration judge refused to consider the affidavit of a political scientist from Loyola University Chicago while the agency gave great weight to anonymous State Department country reports whose authors no one could cross-examine. Posner held that the spirit of Daubert reaches immigration court. He also warned that “it would be odd for an agency to adopt an even more stringent filter for expert testimony than that used by the courts.” Today that filter is precedent. Matter of A-A-R-, 29 I&N Dec. 38 (BIA 2025), treats State Department reports as the best evidence of conditions abroad and faults a judge for relying on human rights organizations and an expert witness. Matter of D-J-L-, 29 I&N Dec. 485 (BIA 2026), and Matter of G-M-I-, 29 I&N Dec. 431 (BIA 2026), tell judges how to discount experts. Matter of H-L-S-M-, 29 I&N Dec. 767 (BIA 2026), reverses a grant of protection resting on expert testimony about corruption.

The torture claim nobody analyzed. In Yi-Tu Lian v. Ashcroft, 379 F.3d 457 (7th Cir. 2004), a Chinese national faced return to a country whose detention camps operate outside its ordinary legal system. His lawyer filed a stack of evidence on torture in those camps. The immigration judge mentioned none of it. Posner wrote that the judge “failed to give the issue a responsible analysis,” and then added, “That is to put it mildly.” Twenty years later an immigration judge in Matter of S-S-, 29 I&N Dec. 136 (BIA 2025), did the analysis. The judge heard an expert, read the reports, and found that a Haitian man with schizophrenia would likely face torture in Haiti’s prisons. The Board reversed. Even indefinite confinement in conditions the Board itself called inhumane would not qualify, it held, unless Haitian officials maintained those conditions for the specific purpose of inflicting pain. The old failure ignored the evidence. The new rule makes the evidence beside the point.

Delay as a ground for removal. In Benslimane, the Board ordered a man removed while his wife’s petition for his green card sat pending, faulting him for not filing a copy of an application the agency already had. Posner vacated the order: “We are not required to permit Benslimane to be ground to bits in the bureaucratic mill against the will of Congress.” In Matter of Arevalo-Vargas, 29 I&N Dec. 519 (BIA 2026), an immigration judge granted cancellation of removal in 2019 on the strength of the hardship to the respondent’s children. The government appealed. The Board held the appeal for more than six years. By the time it ruled, the children had turned 21, and the Board held that they no longer counted. It also rejected the hardship finding on its own review. In 2005 a court refused to let procedure defeat a statutory right. In 2026 the Board’s own delay supplied the ground for removal.

The count kept going

Cade stopped counting at the end of April. The Board kept publishing. Through October 2, 2026, it issued 62 more precedents. None decided a case for the noncitizen. Four also state a narrow rule that helps respondents on a side point. Volume 29 of the Board’s reports filled at roughly three times the pace of Volume 27, which ran from 2017 to 2020. Volume 30 opened in September and published 16 decisions in its first month. The companion page lists every one.

Lawyers have a name for a tribunal like this. They call it a rubber stamp. The term flatters this Board. A rubber stamp approves whatever crosses the desk. This Board reverses, and it reverses in one direction. Five features of the recent decisions explain how.

Precedent now disciplines the trial judges. At least a dozen of the 62 headnotes reverse or send back a ruling that favored the respondent: a grant of asylum, a grant of protection under the Convention Against Torture, a grant of cancellation, a bond. Matter of Mills, 29 I&N Dec. 668 (BIA 2026); Matter of Best, 29 I&N Dec. 723 (BIA 2026); Matter of A-G-O-F-, 29 I&N Dec. 772 (BIA 2026); and Matter of A-Q-R-K-, 29 I&N Dec. 865 (BIA 2026), are examples. Each published reversal tells every immigration judge in the country what not to grant. In Posner’s day the correction ran from the federal courts toward judges who denied relief without reasons. Today it runs from the Board toward judges who grant relief.

Ashcroft’s own rule now stands in the way. The 2002 rule confined the Board to clear-error review of a judge’s findings. Ashcroft adopted it to clear a backlog quickly. Posner made the same point from the bench in Lian: predicting torture is a question for the immigration judge to work out first. Today the Board reverses a judge’s predictions of future harm as “speculation” and treats questions of fact as questions of law. Cade documents the move in detail. A rule that once sped affirmances now gets bypassed to undo grants.

The Gonzales-Gomez problem has returned. In Matter of Boye, 29 I&N Dec. 826 (BIA 2026), a Georgia court clarified a sentence six years after imposing it, and the Board declared the clarification invalid for immigration purposes. Read it beside Matter of Choc-Tut, 29 I&N Dec. 48 (BIA 2025), which denies deference to a state court’s bail decision, and Matter of De Jesus-Platon, 29 I&N Dec. 7 (BIA 2025), which discounts a California vacatur. A state judgment counts when it condemns. It loses force when it helps. Posner called that the mirror image twenty years ago.

The overruled rules are old. The Board has overruled or cut back rules from 1945 and 1957 in Matter of Mendez Maldonado, 30 I&N Dec. 62 (BIA 2026), from 1988 in E-A-S-O-, from 2000 in A-V-O-, from 2001 in Diji, from 2012 in Delcarmen-Lara and A-K-R-, and from 2015 in Forjoe. Two of them date to the Truman and Eisenhower years, and all of them survived Ashcroft. Age alone proves nothing about whether a precedent was right. A cluster of reversals this old, published this fast, says something about the purpose of the exercise.

The hearing keeps shrinking. Matter of G-R-B-, 30 I&N Dec. 102 (BIA 2026), lets an immigration judge throw out an asylum application without a hearing even when DHS never asks. Matter of L-F-R-, 29 I&N Dec. 787 (BIA 2026), ends an asylum claim for an unpaid annual fee. These decisions join H-A-A-V-, which I covered in my post on the asylum interview rule. The asylum office no longer has to interview. The judge no longer has to hear. In the cases these rules reach, the applicant may never testify at all.

Held without a hearing

The same logic reaches the jail cell. Immigration detention is civil, and the Supreme Court has named its two purposes: to make sure a person appears for proceedings, and to protect the community. Zadvydas v. Davis, 533 U.S. 678 (2001). A bond hearing is where a judge asks whether either purpose fits the person standing in the courtroom.

For nearly three decades, people who entered without inspection got that hearing. The Justice Department said so in a 1997 regulation: such individuals “will be eligible for bond and bond redetermination.” Five administrations, the first Trump administration among them, followed that rule. In Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025), the Board ended the practice. It held that immigration judges have no authority to consider bond for anyone present in the United States without admission, however long ago the person arrived and whatever the person’s record. The respondent was a Venezuelan who had held Temporary Protected Status. I wrote the week it came down that the decision would face serious challenge. More than 370 federal district judges have since rejected the government’s reading. In June the Board extended the rule in Matter of N-A-G-C-, 29 I&N Dec. 662 (BIA 2026), to a young man who had arrived as an unaccompanied child and held an approved petition for Special Immigrant Juvenile status.

The courts of appeals have split, and the split turns on statutory text. In Barbosa da Cunha v. Freden, No. 25-3141 (2d Cir. Apr. 28, 2026), the Second Circuit held that mandatory detention requires two things: that the person be an “applicant for admission,” a status the statute assigns by legal fiction, and that the person be “seeking admission,” a present activity. A Brazilian man who crossed the border twenty years ago, raised two citizen children in Massachusetts, and never faced a criminal charge holds the status but does not engage in the activity. He gets a bond hearing. The government had conceded that he posed no danger and no flight risk. The Fifth and Eighth Circuits read the same words the other way. On October 1, 2026, the Supreme Court agreed to decide the question in Rhoney v. Barbosa da Cunha, No. 26-104. I covered the Second Circuit’s ruling when it came down.

The outcome is uncertain. The government’s textual argument has force, and the Court may accept it. If it does, two questions remain. One is constitutional: whether the Fifth Amendment permits holding a longtime resident for the length of a removal case without a single hearing on flight or danger. The Second Circuit flagged that concern. The other is reliance: for nearly thirty years the government told these families, in its own regulation, that a bond hearing awaited them. A statutory win for the government would answer neither question.

The Board’s rule never asks whether the person will flee or poses a danger. It detains on the manner of entry alone. The government has a ready answer: detention deters others from coming. That answer has a history, and Ashcroft wrote it. In Matter of D-J-, 23 I&N Dec. 572 (A.G. 2003), Attorney General Ashcroft held that deterring mass migration could count in custody decisions. In 2015 a federal court in Washington weighed that reasoning against the detention of Central American families and found it likely unlawful. Holding one family to discourage strangers did not fit the traditional purposes of civil detention, the court explained, and “[i]ncantation of the magic words ‘national security’ without further substantiation is simply not enough to justify significant deprivations of liberty.” R.I.L-R v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015).

Posner asked the government for reasons. A bond hearing is the place where the government must give them. Yajure Hurtado removes the place.

The order without reasons

The Board decides who gets removed. A separate question asks where the government may send the person. The statute sets an order: the country the person names, the country of citizenship, and only when those prove impracticable, some other country that will take the person. That last step reaches any country “whose government will accept the alien,” once removal elsewhere proves “impracticable, inadvisable, or impossible.” 8 U.S.C. § 1231(b)(2)(E)(vii). The same statute bars removal to any country where the person’s life or freedom would be threatened, § 1231(b)(3)(A), and the Convention Against Torture imposes the same bar.

Both forms of protection use the same standard of proof. Withholding of removal requires the applicant to prove that persecution, or under the Convention torture, is more likely than not in the country of removal. 8 C.F.R. § 1208.16(b), (c). The statute bars anyone who persecuted others, committed a particularly serious crime or a serious nonpolitical crime abroad, or poses a danger to national security, and an aggravated felony with an aggregate sentence of five years counts as particularly serious by law. § 1231(b)(3)(B). Deferral of removal catches the people those bars exclude: an applicant who proves torture more likely than not still receives deferral. § 1208.17(a).

The two end differently. To terminate withholding, DHS must reopen the case before an immigration judge or the Board and prove a ground for termination by a preponderance of the evidence. § 1208.24(f). Deferral flips the burden. At a deferral termination hearing, the person must prove all over again that torture is more likely than not, § 1208.17(d), and the Attorney General may skip the hearing entirely and end deferral on diplomatic assurances from that country, § 1208.17(f). Neither requires termination for a different country. Withholding forbids removal only to the country named, and the deferral regulation says the person “may be removed at any time to another country where he or she is not likely to be tortured.” § 1208.17(b)(2).

Every one of these protections attaches to a specific country. Neither the statute nor the regulation tells the person which country, and neither tells the government how to choose one or how to confirm that it is safe. Courts have long allowed these third-country removals as a last resort. The current administration has turned them into a program. The class plaintiffs in D.V.D. v. Department of Homeland Security report, and the government does not dispute, that it has sent more than 25,000 people to third countries this way. Third Country Deportation Watch, a tracker run by Human Rights First and Refugees International, counts at least 29 destination countries, agreements with at least 35, and at least $49 million in direct United States payments to those governments, not counting the cost of the flights. I wrote about the people caught in that program in August.

The fight in D.V.D. concerns process. A removal hearing almost never names the third country, so nobody has asked whether the person faces torture there. DHS filled the gap with a memo. Secretary Kristi Noem’s Guidance Regarding Third Country Removals, dated March 30, 2025, says that if the receiving country gives diplomatic assurances the State Department finds credible, the person “may be removed without the need for further procedures.” Without assurances, officers announce the destination but “will not affirmatively ask whether the alien is afraid.” And if a screening officer finds real danger, ICE “may choose to designate another country for removal” and start again. The district court in Massachusetts set the guidance aside. On September 18, 2026, the First Circuit affirmed in substantial part in a 55-page opinion.

Eleven days later the Supreme Court stayed that judgment, granted certiorari, and set the case for argument in December. The order gives no reasons. It lists four questions for review. The fourth reads in full: “Such other questions that the Government determines are appropriate for the proper disposition of the case.” Steve Vladeck, a law professor who writes widely on the Court’s emergency docket, wrote that he had never seen a grant like it. He also asked how the balance of harms could favor a stay when the harm on one side is removal to torture, with no realistic remedy afterward. He called the destinations “black holes.”

Set that order beside Lian. In 2004 the Seventh Circuit held that a torture claim deserves a responsible analysis before the government acts. In 2026 the government may act first, and the analysis may never happen. The highest court in the country allowed it without a word of explanation, while it invited the government to frame the questions it wants answered.

A caution belongs here. A stay is not a ruling on the merits. The Court will hear the case in December and may write an opinion that answers every objection. The questions are hard ones. My point concerns the form of the order. A court that asks an agency for reasons owes the public its own.

The case for the Board

The best defense of the current Board deserves a full hearing. It runs like this. Congress put immigration adjudication inside the executive branch. The regulations give the Attorney General power to review Board decisions and to choose which ones become precedent. 8 C.F.R. § 1003.1(g), (h). Elections change policy, and an administration elected on enforcement may lawfully pursue it through adjudication. The Biden Justice Department did the same thing in the other direction when it vacated A-B- and L-E-A-. Published precedent also skews the numbers. The Board publishes decisions to change or settle the law, so a new administration’s precedents will lean its way. Many of the individual rulings stand on solid ground: a respondent with a recent violent arrest may well belong in custody. And the federal courts still check the Board. The Second Circuit and more than 370 district judges have rejected the detention theory behind Yajure Hurtado, and the Supreme Court will decide that question too.

Much of that holds. Policy may change with an election. My objection lies elsewhere, in method. Posner never complained that the government enforced the immigration laws. He complained that it ignored evidence, gave no reasons, and switched interpretive rules to reach the outcome it wanted. Those failures carry legal consequences today. Since Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), courts no longer defer to an agency’s reading of a statute. They may still give it weight under Skidmore v. Swift & Co., 323 U.S. 134 (1944), and that weight depends on the thoroughness, consistency, and validity of the agency’s reasoning. A body that publishes 160 losses in 162 tries, overrules decades of settled precedent, and reverses its trial judges in one direction has a hard time claiming the consistency Skidmore rewards.

The exhaustion doctrine faces the same test. Courts make a noncitizen take every claim to the Board first, on the theory that the agency deserves a chance to correct its own errors. Cade argues that the theory fails when the agency has been rebuilt to reach a set result. Posner trusted the executive branch to correct itself. The record since January 2025 shows what happens when it does.

Where this goes

In 2005 Posner placed the power of correction in the Department of Homeland Security and the Department of Justice. He expected those agencies to fix a broken system, and for a time the Justice Department tried. Twenty years later both departments use that power constantly. The Board corrects its judges. The Attorney General corrects the Board. Every correction moves the same way.

The remaining check sits in the federal courts. Loper Bright returned the final word on statutory meaning to judges. The Supreme Court will hear the detention question and the third-country question this term. Those cases will show whether the courts still demand from the government what Posner demanded: a record, a reason, and a rule that cuts the same way for both sides.

In 2006 Posner examined a single term, “aggravated felony,” and caught the government choosing state law or federal law, whichever produced removal. In 2026 the same tilt fills two volumes of precedent. The alien still loses. What has changed is the effort spent on explaining it.

I will keep counting on the companion page and update it each month.

This post is legal commentary, not legal advice, and reading it does not create an attorney-client relationship. If you or someone you know faces removal proceedings, consult a licensed immigration attorney about your own case. Law Offices of Michael D. Baker.

Posted in BIA, Board of Immigration Appeals | Tagged Ashcroft, Benslimane v. Gonzales, D.V.D. v. DHS, Gonzales-Gomez v. Achim, Jason Cade, Loper Bright, Richard Posner, Seventh Circuit, Skidmore, third-country removal, Volume 29 | Leave a comment

Second Circuit: Long-Term EWI Residents Are Not “Seeking Admission” — Bond Hearings Required | Cunha v. Freden

Posted on October 1, 2026 by Mike Baker

Update — October 1, 2026

The Supreme Court granted certiorari today in Rhoney v. Barbosa da Cunha, No. 26-104, to resolve whether 8 U.S.C. § 1225(b)(2)(A) mandates detention of noncitizens present in the United States without having been admitted. Arguments are expected in early 2027. The Court will resolve a direct circuit split between the Second Circuit — which held § 1226(a) governs interior arrests of long-term EWI residents and bond hearings are required — and the Fifth and Eighth Circuits, which held the opposite.

The answer, as I argued in my February 7 analysis of Matter of Yajure Hurtado and as the Second Circuit confirmed in the ruling below, is no. The statute requires two distinct conditions — “applicant for admission” and “seeking admission” — and a person who crossed the border two decades ago and now seeks relief from removal satisfies only the first. The Supreme Court will have the final word.

The original analysis below remains current.

Second Circuit: Long-Term Interior Residents Are Not “Seeking Admission” — Bond Hearings Required, Circuit Split Now Open

Cunha v. Freden, No. 25-3141 (2d Cir. April 28, 2026) | Judge Bianco, writing for the panel (Cabranes, Bianco, Nathan, Circuit Judges.)

The Second Circuit ruled on April 28, 2026 that 8 U.S.C. § 1225(b)(2)(A) — the statute the Trump administration weaponized in July 2025 to eliminate bond hearings for everyone who entered without inspection — does not apply to noncitizens who entered without authorization years or decades ago and now live in the interior. Those people fall under 8 U.S.C. § 1226(a). They get a bond hearing. The ruling joins more than 370 district court judges who have rejected the government’s position, and it opens a direct circuit split with the Fifth and Eighth Circuits.

The circuit map now looks like this: the Fifth Circuit (Buenrostro-Mendez v. Bondi, Feb. 2026) and the Eighth Circuit (Avila v. Bondi, 2026) say mandatory detention with no bond. The Second Circuit, plus the Seventh’s preliminary ruling in Castañon-Nava, say § 1226(a) governs and bond hearings are available. Two circuits against millions of long-term residents. The Second Circuit, 370+ district judges, and the Seventh Circuit’s preliminary ruling for them.

Cunha v. Freden circuit split map — state by state breakdown of mandatory detention vs bond hearing circuits

Full analysis below.

🧑 The Man Behind the Case

Ricardo Aparecido Barbosa da Cunha came from Brazil around 2004 or 2005. He crossed without inspection. He stayed. He built a life in Norwood, Massachusetts — owns a home, married, raised two U.S. citizen children, filed for asylum in 2016, got a valid work permit, and ran a small construction business. He has never been arrested for or charged with a crime. Not once.

On September 26, 2025, ICE pulled his car over on the way to work and arrested him on an administrative warrant issued under § 1226 of the INA. DHS charged him as inadmissible: present without admission, no documentation. He asked for a bond hearing. The immigration judge said no. The government’s position: his entry without inspection twenty years earlier permanently assigned him to mandatory detention under § 1225(b)(2)(A), with no judicial review of flight risk or dangerousness, for however long his removal case runs. The government itself conceded he posed no danger and no flight risk. That concession did not matter to the government’s theory. It did matter to the Second Circuit.

ℹ️ The Policy Shift That Started This — In July 2025, ICE issued Interim Guidance Regarding Detention Authority for Applicants for Admission, abandoning 28 years of practice under which EWI noncitizens received bond hearings. Two months later, the BIA’s Matter of Yajure Hurtado (September 2025) provided the formal legal framework to justify what ICE had already done. The Cunha habeas petition — filed in the Western District of New York after ICE transferred him to Buffalo — is one of thousands triggered by that policy shift. The Second Circuit’s ruling resolves them for the circuit.

⚖️ The Ruling

Plain Language First

Section 1225(b)(2)(A) requires both “applicant for admission” AND “seeking admission.” Cunha satisfies only the first. He is not seeking admission. Therefore § 1226(a) governs. He gets a bond hearing. That is the whole case.

The Statutory Framework

Section 1225(b)(2)(A) reads: “in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained.” The government read this as a single, unified mandate: anyone who carries the status of “applicant for admission” — which by § 1225(a)(1) includes every EWI noncitizen — faces mandatory detention with no bond option.

Judge Bianco starts exactly where a rigorous textualist must: with the words Congress actually chose. The sentence contains two distinct phrases doing two distinct pieces of work. “Applicant for admission” is a statutory fiction. Section 1225(a)(1) says such persons “shall be deemed” applicants for admission. “Deem” is a term of legal art that creates a fiction — it treats something as if it were what it is not. Congress manufactured an artificial legal category for people like Cunha: they are called applicants even though they never applied for anything and cannot lawfully apply now. The fiction routes them into removal proceedings. It does not mandate detention.

“Seeking admission” carries no such fiction. Congress did not “deem” anyone to be “seeking admission.” That phrase retains its ordinary meaning — and its ordinary meaning is temporal. “Seeking” is a present participle. The principal verb is “is.” The statute addresses “an alien who is seeking admission.” Right now. Presently. Not in 2004. Cunha crossed without permission two decades ago, has lived here ever since, and seeks asylum and cancellation of removal. He is not requesting lawful entry into the United States.

🔑 The Core Analytical Move: Fiction vs. Activity

“Applicant for admission” = a status Congress created artificially via “deemed.” It has no temporal scope — you can hold it for twenty years. “Seeking admission” = an activity that requires present engagement. The statute demands both. Congress put both phrases in the same sentence for a reason. The government’s reading collapses them into one. The Second Circuit enforces the difference.

The Counter-Arguments, Rejected

§ 1226(a) applies only to visa overstayers. The government argued § 1226(a) covers only previously admitted aliens. The court calls this a rewrite. Section 1226(a) covers “an alien” pending a removal decision. Congress knows how to limit provisions to deportable aliens — it does so repeatedly elsewhere in IIRIRA. It did not do so here.

The Laken Riley Act is irrelevant. The government’s reading renders the Laken Riley Act — signed in January 2025 to mandate detention of EWI noncitizens who commit specified crimes — nearly superfluous for the population it targeted. If all EWI noncitizens were already mandatorily detained under § 1225(b)(2)(A), Congress enacted an entire statute to solve a problem that did not exist.

Jennings v. Rodriguez controls. In Jennings (2018), the Supreme Court described § 1225 as operating “at the Nation’s borders and ports of entry” and § 1226 as applying to “aliens already in the country.” The Second Circuit treats this as authoritative. The government identifies no change in the legal landscape that would justify departing from it.

Thirty years of executive practice and congressional silence. Five administrations — including Trump’s first term — released EWI noncitizens on bond under § 1226(a). The 1997 DOJ regulation stated it explicitly: “despite being applicants for admission, aliens who are present without having been admitted or paroled . . . will be eligible for bond and bond redetermination.” Congress then amended IIRIRA repeatedly without correcting that interpretation.

Constitutional avoidance as the final backstop. Even if the text were ambiguous — and the court insists it is not — the government’s interpretation proposes the broadest mass-detention-without-bond mandate in American history. Mandatory indefinite detention for millions of noncitizens, many with no dangerousness finding and no flight risk, raises severe Fifth Amendment due process concerns under Zadvydas v. Davis and Velasco Lopez v. Decker.

📊 What This Actually Does: The Detention Map

The real-world rule: An EWI noncitizen arrested in the interior on a warrant, not covered by § 1226(c)’s criminal grounds, is entitled to a bond hearing under § 1226(a). “Applicant for admission” status alone does not eliminate judicial review.

Cunha v. Freden circuit split map — state by state breakdown of mandatory detention vs bond hearing circuits

Scenario	5th & 8th Circuits	2nd Circuit
EWI 20+ years ago, no criminal history, U.S. citizen family, interior arrest	Mandatory detention — no bond	§ 1226(a) — bond hearing available
EWI 5 years ago, no criminal history, interior arrest	Mandatory detention — no bond	§ 1226(a) — bond hearing available
EWI apprehended at or near the border at time of crossing	§ 1225(b)(2)(A) mandatory detention	§ 1225(b)(2)(A) mandatory detention
EWI + Laken Riley Act qualifying offense	§ 1226(c) mandatory detention	§ 1226(c) mandatory detention
Visa overstay, no criminal history	§ 1226(a) — bond available (all agree)	§ 1226(a) — bond available

🗺️ Border, Interior, and the 100-Mile Zone: Three Separate Legal Frameworks

This case exposes a confusion that runs through public debate and some legal arguments alike. Three distinct legal frameworks govern immigration enforcement in the interior. They operate independently. Conflating them is a mistake the government’s own theory invites — and one the Second Circuit firmly rejects.

Framework 1: § 1225(b)(2)(A) — The Border Detention Statute

This is the statute at issue in Cunha. It mandates detention for noncitizens who present at a port of entry or are apprehended “at the threshold of initial entry.” The Second Circuit is explicit: the test is temporal, not geographic. It asks not where someone was arrested on a map, but whether they were apprehended at the moment of crossing. Cunha crossed in 2004 or 2005. ICE arrested him in Norwood, Massachusetts, twenty years later. He was not at the threshold of entry. § 1225(b)(2)(A) does not reach him.

Framework 2: § 1226(a) — The Interior Detention Statute

Section 1226(a) governs the arrest and detention of noncitizens already present in the United States pending a removal decision. Detention is discretionary. The Attorney General may release on bond. An immigration judge reviews the custody determination. This is the statute that governed EWI interior arrests for nearly 30 years across five administrations — until the government reversed that understanding in July 2025. Under the Second Circuit’s holding, it still does.

Framework 3: The 100-Mile Zone (8 C.F.R. § 287.1) — Warrantless Arrest Authority Only

This framework governs a separate question entirely: where ICE may conduct warrantless arrests without a judicial warrant. Within 100 miles of any external U.S. boundary — land borders and ocean coastlines — ICE holds expanded warrantless arrest authority under 8 C.F.R. § 287.1. This has nothing to do with § 1225(b)(2)(A) or bond eligibility. It answers only who ICE can arrest without first obtaining a warrant.

🏙️ Which Major Cities Fall Inside the 100-Mile Zone — and Which Do Not

The 100-mile zone covers international land borders and ocean coastlines. New York City, Los Angeles, Miami, Detroit, and Seattle fall within it. Chicago and Minneapolis do not. Lake Michigan has no international boundary — the U.S.-Canada border runs through Lake Superior, Lake Huron, Lake Erie, and Lake Ontario. Chicago sits well beyond 100 miles from any of those. Minneapolis is landlocked, far from any external boundary.

The government’s 2025 interior enforcement raids swept through all of these cities. Under the 100-mile zone framework, ICE’s arrest authority in New York and Los Angeles differs from its authority in Chicago and Minneapolis. But under the government’s § 1225(b)(2)(A) theory, the detention consequence is identical everywhere: mandatory, no bond, no hearing. That is precisely what the Second Circuit rejected. Geography of the arrest is irrelevant to the detention question. What matters is when — whether the person was apprehended at the threshold of entry or years later in the interior.

⚠️ Why This Matters for Rhoney v. Barbosa da Cunha

If the Supreme Court adopts the government’s position, the detention consequence collapses all three frameworks into one. A person arrested in Chicago 20 years after crossing — far outside the 100-mile zone, clearly in the interior, clearly under § 1226(a) by any prior understanding — faces the same mandatory detention without bond as someone caught stepping across the Rio Grande. The Second Circuit held that reading defies the statutory text, the structure of IIRIRA, and nearly 30 years of uniform executive practice. Jennings v. Rodriguez (2018) said § 1225 operates “at the Nation’s borders and ports of entry” and § 1226 governs those “already in the country.” That distinction has always been the law. The government now asks the Supreme Court to erase it.

🚨 What the Fifth Circuit Said — And Why It’s Wrong

The Fifth Circuit in Buenrostro-Mendez and the Eighth Circuit in Avila v. Bondi both held that mandatory detention applies. Here is their reasoning, and why the Second Circuit correctly dismantles it.

The Fifth Circuit’s Core Theory

“Applicant for admission” and “seeking admission” carry the same ordinary English meaning. When a person applies for something, they are seeking it. The majority’s signature move: the college applicant analogy. Just as a college applicant “seeks admission” while her application is pending, an EWI noncitizen “seeks admission” while removal proceedings are pending. Judge Douglas dissented, calling the majority’s reading one that “no one has ever thought” § 1225(b)(2)(A) means — because it does not mean it.

The Fifth Circuit ignored “deemed” — which is the entire ballgame. Congress used “deemed” in § 1225(a)(1) because EWI noncitizens are not, in ordinary English, applicants for admission. The fiction makes them applicants constructively. The Fifth Circuit then applied ordinary English to “seeking admission” while discarding the signal Congress embedded by calling the first phrase a fiction. You cannot take a phrase Congress labeled artificial and use ordinary language to collapse it into the adjacent phrase that carries no such label.

The college applicant analogy collapses on contact with actual facts. A college applicant submits an application and waits for a decision on that application. Cunha submitted nothing. He crossed a border without permission twenty years ago. He never sought lawful entry. The Second Circuit’s better analogy: someone sneaks into Yankee Stadium in the first inning with no ticket and no intention of ever paying, and security finds him in his seat in the seventh inning. Nobody calls that fan “seeking admission” to the game.

The Fifth Circuit made the Laken Riley Act almost meaningless for its target population. If all EWI noncitizens are already mandatorily detained under § 1225(b)(2)(A), the Act achieves nothing for the population it addressed. Congress does not enact superfluous legislation.

The Fifth Circuit produced the absurd result it claimed to prevent. The 20-year EWI resident gets mandatory detention with no bond; the visa overstayer with identical community ties, identical family, identical length of residence gets a bond hearing. Same equities, opposite outcomes — based entirely on how someone crossed a border two decades ago.

🏛️ Practice Advisory: What This Means in the Second Circuit

✅ EWI Interior Arrests — Connecticut, New York, Vermont

✓Clients arrested in the interior on an administrative warrant who entered without inspection are entitled to a bond hearing under § 1226(a) — unless § 1226(c) criminal grounds apply or they were apprehended at or near the border at the time of entry.

✓File for bond hearings immediately for any client currently held under a § 1225(b)(2)(A) determination in Second Circuit custody. This is now binding circuit precedent.

✓Immigration judges in the circuit must follow Cunha. The BIA’s Yajure Hurtado receives no deference post-Loper Bright. Raise the argument at every level and preserve it for any cert-stage development.

✓At the bond hearing, the government bears the burden of establishing flight risk or dangerousness by clear and convincing evidence. The hearing itself is the victory — argue the merits aggressively and build the record.

✓Watch for ICE transfer attempts to Fifth or Eighth Circuit facilities. File a 28 U.S.C. § 2241 habeas petition before any transfer and include a TRO to block it. Jurisdiction is determined by where the client sits physically at the time of filing.

🏙️ Illinois Practitioners: Seventh Circuit Has Already Sided With You — Preliminarily

In Castañon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1062 (7th Cir. 2025), the Seventh Circuit — on a stay-motion review — preliminarily reached the same conclusion as the Second Circuit. The court said that while a noncitizen “arrested in the Midwest” might qualify as an “alien present in the United States who had not been admitted” under § 1225(a)(1), the mandatory detention provision limits its scope to an “applicant for admission” who is “seeking admission” — and a Midwest interior arrest does not satisfy that second requirement.

The limit: This is a preliminary ruling on a stay motion, not a full merits decision. Use Castañon-Nava as strong persuasive authority in habeas petitions — pair it with Cunha as the circuit court holding — but preserve the argument fully in anticipation of the Seventh Circuit’s eventual merits decision.

⚠️ Transfer Jurisdiction Warning
Once a client moves to a detention facility in Texas, Louisiana, or Mississippi (5th Cir.) or the Eighth Circuit states, that circuit’s mandatory-detention precedent governs. ICE has used transfers aggressively to forum-shop adverse habeas cases. If you receive any indication of a transfer — file that day. The window can close in hours.

🚨 Outside the Second Circuit: Habeas Remains Your Weapon

In the Fifth and Eighth Circuits, mandatory detention is currently the law. Everywhere else, district court habeas petitions under 28 U.S.C. § 2241 remain viable and are winning at a rate that dwarfs the government’s wins. File on: (1) § 1226(a) governs — Cunha is now primary authority; (2) prolonged detention without individualized review violates due process under Zadvydas; (3) no individualized dangerousness finding renders continued detention constitutionally deficient under Velasco Lopez. The Second Circuit’s 61-page opinion is your brief appendix.

🔢 What To Do Now

Audit detained EWI clients immediately. If they sit in Second Circuit facilities and the IJ classified them under § 1225(b)(2)(A), file for bond. This is now settled circuit law.

Monitor transfer notices in real time. Set EOIR case alerts. Any indication of a transfer to a 5th or 8th Circuit facility triggers an emergency habeas filing in the current district court with a TRO request to block the move.

Build the constitutional record even where you win on statute. Detention duration, family separation, community ties, lack of any individualized dangerousness finding — document all of it. The Supreme Court will need those facts. Build the record now.

Challenge § 1225(b)(2)(A) determinations in every circuit. Preserve the statutory argument everywhere. Raise Cunha, raise Jennings, raise the surplusage canon, raise the Laken Riley Act superfluity argument. Make the circuit conflict record as clean as possible.

Certiorari is now granted. Rhoney v. Barbosa da Cunha, No. 26-104, was granted October 1, 2026. Arguments expected early 2027. Identify amicus organizations now. Build the record for the Supreme Court argument.

🏁 Conclusion

The Second Circuit got this right. It read two phrases appearing in the same sentence of the same statute, gave both phrases independent meaning, followed the Supreme Court’s own description of the statutory architecture in Jennings, honored 30 years of executive practice across five administrations, and refused to impose the largest mass-detention mandate in American history through an interpretation that 370+ district judges have rejected. The ruling is careful, rigorous, and correct.

The Fifth and Eighth Circuits arrived at a result that treats the Laken Riley Act as essentially superfluous, punishes EWI residents more harshly than visa overstayers with identical equities, and gives ICE the power to lock up millions based on a decades-old fact about how someone crossed a border — with no individualized assessment, no judicial review, and no end date. That is not what Congress wrote. That is not what five administrations understood. And it is not what the Fifth Amendment permits.

The Supreme Court granted cert on October 1, 2026. The weight of textual argument runs decisively for the Second Circuit: the surplusage canon, the temporal distinction between noun and present participle, Jennings‘s own description of the statutory scheme, the Laken Riley Act’s implicit concession that non-criminal EWI noncitizens were eligible for bond, and the constitutional avoidance canon all point the same direction. The question is whether there are five votes. There should be.

⚖️ THE BOTTOM LINE

An EWI noncitizen living in the interior is not “seeking admission.” She is seeking to stay.

Section 1226(a) governs her detention. She gets a bond hearing. That is what the statute says, what thirty years of executive practice reflected, and what the Second Circuit now holds as circuit law.

Disclaimer: This analysis is for educational and informational purposes only and does not constitute legal advice. Immigration law changes rapidly and outcomes depend entirely on individual facts. Consult qualified immigration counsel before taking any legal action.

📄 Download Cunha v. Freden (2d Cir. 2026) PDF

Posted in bond hearings, bond hearings required. Direct split with the 5th & 8th. SCOTUS cert is coming. Full analysis: mikebakerlaw.com/blog/cunha-v-freden-second-circuit-ewi-bond-hearings-1226 ⚖️Sonnet 4.6Adaptive, Buenrostro-Mendez, circuit split, Cunha v. Freden, immigration detention, Jennings v. Rodriguez, Laken Riley Act, Loper Bright, Second Circuit, Yajure Hurtado, Zadvydas, § 1225(b)(2)(A), § 1226(a) | Leave a comment

Your Old Arrest Can Finally Disappear: Illinois Expungement and Sealing in 2026

Posted on September 22, 2026 by Mike Baker

Illinois Expungement and Sealing: What You Can Clear in 2026

Illinois criminal records · Updated September 22, 2026

An old arrest can keep showing up long after the case is over. A conviction can follow you for years. Illinois offers ways to clear or restrict access to some of those records. The right approach depends on what actually happened in court.

Told “you don’t qualify” years ago?

It may be time for another look. Illinois changed its expungement and felony sealing laws in 2017, and legislation effective in 2026 changed the rules again. Eligibility still requires a charge-by-charge review.

First, understand the two main options

Expungement

Expungement generally means destroying or returning records and removing identifying information from official indexes. Courts impound their files under the statute. People most often seek expungement for eligible cases that did not end in a conviction. The law also provides special paths for certain other dispositions.

Sealing

Sealing restricts access to records rather than destroying them. Courts can seal many eligible convictions. The law still allows certain agencies and others to access sealed records in specified circumstances.

The practical question is not simply “Was I arrested?” It is: What was the final disposition of each charge, what sentence did the court impose, and when did that sentence end?

Check the law: 20 ILCS 2630/5.2(a)(1)(E), (K), (b), and (c); 20 ILCS 2630/13. Illinois Clean Slate Act: Public Act 104-0459

What changed, and why an old answer may be wrong

2017: A conviction no longer blocks every expungement

Before the reform, a conviction elsewhere in a person’s history could prevent expungement of an otherwise eligible arrest or dismissed case. Public Act 99-0881, effective January 1, 2017, removed that blanket barrier. A prior conviction does not automatically disqualify a separate eligible nonconviction record.

This did not turn ordinary convictions into expungeable records. It changed the treatment of eligible records for people who also have convictions.

Check the law: 20 ILCS 2630/5.2(b)(1) and (1.5). Public Act 99-0881: 2017 expungement reform (PDF)

2017: Felony sealing expanded substantially

Public Act 100-0284, effective August 24, 2017, expanded sealing beyond the former narrow list of eligible felony convictions. An older article limited to selected Class 4 felonies is no longer a reliable eligibility guide. The current exclusions and waiting periods still matter.

Check the law: 20 ILCS 2630/5.2(c)(2), subject to subsection (a)(3). Public Act 100-0284: 2017 felony sealing expansion

2026: Changes you can use now

The petition provisions of the Clean Slate Act, Public Act 104-0459, took effect June 1, 2026. The law revised petition-based sealing periods, removed the former drug-test requirement, and deleted the former subsequent-felony restriction in subsection (c)(4). A new conviction still requires its own eligibility review; nothing here promises relief for every record.

Check the law: 20 ILCS 2630/5.2(c)(3), (c)(4), and (d)(3); Public Act 104-0459, §99. Illinois Clean Slate Act: Public Act 104-0459

Automatic sealing is coming in stages.

Do not confuse the law’s effective date with the launch of every automatic process. Subsection (l) schedules an automatic process for qualifying municipal ordinance and Class C misdemeanor records beginning January 1, 2028. The broader system under subsection (k) begins January 1, 2029, is subject to funding, and phases in older records through 2034. Automatic eligibility is not identical to petition-based eligibility.

If relief is available by petition now, the future automatic program is a separate option to evaluate.

Check the law: 20 ILCS 2630/5.2(k) and (l). Illinois Clean Slate Act: Public Act 104-0459

How long do you have to wait?

The age of the arrest is only part of the story. For sealing, the statute generally measures the waiting period from completion of the person’s last sentence, which can include a sentence in another jurisdiction.

Common routes under current Illinois law
Record or disposition	General rule	Section
Eligible acquittal, dismissal, or release without charges	Generally no waiting period for expungement; eligible nonconvictions can also be sealed without a waiting period.	§5.2(b)(2)(A); (c)(3)(A)
Successfully completed supervision	Expungement generally requires two years after satisfactory termination. Specified offenses require five years, and exclusions apply. Sealing generally follows the two-year last-sentence rule.	§5.2(b)(2)(B); (c)(3)(B)
Successfully completed qualified probation	Expungement generally requires five years after satisfactory termination. Eligible sealing generally follows the two-year last-sentence rule.	§5.2(b)(2)(C); (c)(3)(B)
Eligible conviction with probation or conditional discharge completed without revocation	Generally two years after the last sentence ends for sealing.	§5.2(c)(2)(D); (c)(3)(B)
Other eligible misdemeanor or ordinance conviction	Generally two years after the last sentence ends for sealing.	§5.2(c)(2)(E); (c)(3)(B)
Other eligible felony conviction	Generally three years after the last sentence ends for sealing.	§5.2(c)(2)(F); (c)(3)(C)

These are starting points, not a substitute for checking the exceptions. For felony convictions subject to the three-year waiting period, subsection (c)(3)(E) may allow earlier sealing if you earn a qualifying educational credential during your sentence or mandatory supervised release. You must not have completed the same educational goal before that period. This exception does not shorten the two-year waiting period.

Check the law: 20 ILCS 2630/5.2(a)(1)(F), (b)(2), and (c)(3). Illinois Clean Slate Act: Public Act 104-0459

Some offenses have special restrictions

Subsection (a)(3) excludes specified records, including DUI convictions and supervision, most reckless-driving dispositions, and listed domestic-violence, sexual, and animal-cruelty offenses. The precise offense and disposition control.

Ordinary battery is not the same offense as domestic battery. A label such as “battery” does not establish which statute applies. Reckless driving also has a narrow exception involving an offense committed before age 25, additional conditions, and relief after age 25. Obtain the judgment before applying that exception.

Check the law: 20 ILCS 2630/5.2(a)(3), (b)(2)(B)(i-5), and (c)(3)(D). Illinois Clean Slate Act: Public Act 104-0459

Drug cases: the disposition matters, and cannabis has its own rules

Qualified probation can lead to a different result

A drug case resolved through a qualifying first-offender or treatment disposition is different from an ordinary conviction. The definition of “qualified probation” includes programs under section 10 of the Cannabis Control Act, section 410 of the Illinois Controlled Substances Act, and section 70 of the Methamphetamine Control and Community Protection Act, among others.

Successful completion can support the qualified-probation routes described above. The sentencing order must identify the program and the record must establish successful termination. The 2026 Clean Slate Act also deleted the former drug-test requirement in section 5.2(d)(3).

Check the law: 20 ILCS 2630/5.2(a)(1)(J), (b)(2)(C), (c)(3)(B), and (d)(3). Illinois Clean Slate Act: Public Act 104-0459

The 2026 cannabis change: 60 grams in the statutory definition

Public Act 104-0463 amended the definition of a “Minor Cannabis Offense” in section 5.2(a)(1)(G-5) to cover specified violations involving not more than 60 grams, replacing the former 30-gram threshold. The definition excludes a section 7 penalty enhancement and an association with an arrest, conviction, or other disposition for a violent crime as defined by the cross-referenced statute.

This amendment is in section 105 of the public act and took effect June 12, 2026. Some other provisions of that act take effect November 12, 2026; that later date does not postpone this definition change.

Check the law: 20 ILCS 2630/5.2(a)(1)(G-5); Public Act 104-0463, §§105 and 999. Public Act 104-0463: 2026 cannabis amendments

Automatic marijuana expungement: you may not need to file a petition

Illinois already has an automatic expungement process for certain marijuana records.

This process is separate from the broader automatic sealing program scheduled to begin in 2029. For qualifying law enforcement records under section 5.2(i)(1), the law requires the Illinois State Police and local law enforcement agencies to expunge the records without requiring you to file a petition.

1. Qualifying records that did not result in a conviction

Under section 5.2(i)(1)(A), automatic agency expungement covers records of a qualifying Minor Cannabis Offense committed before June 25, 2019 when:

At least one year has passed since the arrest or law enforcement interaction; and
No related criminal charges were filed, or the charges ended in dismissal, vacatur, or acquittal.

Subsection (i)(1)(B) also directs the agency to expunge the records when the one-year condition is met but the agency cannot verify the charging or disposition condition. The statute identifies records of arrests, charges not initiated by arrest, supervision, and qualified probation, subject to these requirements.

This provision addresses law enforcement records. Do not assume that agency expungement also clears a separate court file or updates a private background report. Check each record separately.

2. Qualifying convictions follow a state review and pardon process

Section 5.2(i)(2) creates a separate process for qualifying Minor Cannabis Offense convictions. The Illinois State Police identifies eligible records and sends them to the Prisoner Review Board. The Board reviews them and makes recommendations to the Governor.

If the Governor grants a pardon authorizing expungement, the Board, through the Attorney General, files the expungement petition. The court then orders expungement as the statute directs. The state initiates this process, but a qualifying conviction does not disappear merely because it appears to meet the cannabis definition. The pardon and court-order steps still matter.

3. A court motion provides another route for certain convictions

Sections 5.2(i)(3) and (i)(4) provide motion procedures to vacate and expunge qualifying misdemeanor or Class 4 felony convictions under sections 4 or 5 of the Cannabis Control Act. These procedures differ from automatic agency expungement.

What the 60-gram change means: the current definition of a Minor Cannabis Offense uses the 60-gram limit described above. Each relief process still has its own conditions. Before treating an old Class 3 conviction as a Class 4 conviction, review the historical judgment and identify the legal authority for doing so.

Check the law: 20 ILCS 2630/5.2(i)(1) through (4). Public Act 104-0463: 2026 cannabis amendments

A hypothetical: one history, several different answers

Where this example came from

This example draws on a report obtained through TruthFinder, a commercial background-report service. The accompanying document summarizes the relevant entries and removes identifying details. It is a new educational summary, not a certified court record or a reproduction of the original report.

A commercial report can help you identify cases to investigate. It does not replace pulling the courthouse records. Entries may be incomplete, duplicated, outdated, or incorrectly matched. Before deciding what qualifies for relief, obtain the certified disposition for every count and review the judgment, sentence, and any later orders.

Download the anonymous background-report case study (PDF)

Getting certified dispositions in Chicago

For Chicago felony trial records, contact the Clerk’s Criminal Division at 2650 S. California Avenue, fifth floor, Room 526, telephone 773-674-3140. For Chicago misdemeanor records, the Criminal Department lists 50 W. Washington Street, Room 1006, telephone 312-603-4641. Its certified-disposition instructions request the defendant’s name, birth date, and arrest date. Supply the case number if you have it. Suburban cases require the appropriate district.

The Clerk’s Record Search Request Form, CCG 0026 (PDF) provides a way to request regular or certified copies. Older files may require archive retrieval. Confirm the file’s location, current fees, and request procedure before traveling or mailing a request.

Official instructions: Criminal Division at 26th and California; Criminal Department and certified-disposition FAQ. Contact details checked September 22, 2026.

Consider an anonymous person whose background report lists Illinois and Wisconsin offenses, dismissals, guilty findings, and incomplete entries. The offense descriptions below illustrate how the rules apply. This example omits names, personal dates, case numbers, and other identifying details.

Start with the report. Confirm the court record.

These entries are unverified allegations or reported outcomes. Some may be duplicates, mismatches, or incomplete. The analysis is conditional and does not establish that a particular person committed an offense.

Illinois: start with the disposition of every count

Illinois offenses: a conditional review

Aggravated possession of stolen motor vehicles
625 ILCS 5/4-103.2(a)(1)

What the entry suggests: A reported nolle prosequi makes this a potential nonconviction expungement candidate.

What to verify: The certified disposition of every count; any later prosecution or disposition.

Ordinary battery
720 ILCS 5/12-3(a)(1) or (a)(2)

What the entry suggests: A verified dismissal may support expungement. An ordinary battery conviction requires separate sealing analysis.

What to verify: Entries include nolle prosequi or stricken-off-leave terminology; confirm final outcome and identity match. Do not assume domestic battery.

Disorderly conduct
720 ILCS 5/26-1

What the entry suggests: Final dismissal could support expungement; a conviction needs a different analysis.

What to verify: Stricken-off-leave, bond-forfeiture, and missing-outcome entries do not establish final dismissal. Resolve inconsistent offense classifications.

Theft of labor, services, or property
720 ILCS 5/16-3(a)

What the entry suggests: A reported guilty finding points toward reviewing sealing if it became an ordinary conviction.

What to verify: The actual sentence; whether the court instead entered supervision or another qualifying disposition; completion date.

“Assault” entry citing former chapter 38, paragraph 12-2(a)

What the entry suggests: The label conflicts with an aggravated-assault citation. A reported guilty finding cannot be classified confidently.

What to verify: Charging document, correct statute, final judgment, offense class, and sentence.

Criminal trespass to land
720 ILCS 5/21-3(a)

What the entry suggests: A possible nonconviction route if a final eligible disposition is confirmed.

What to verify: Identity match and final disposition; stricken off with leave is insufficient by itself.

Criminal trespass to a vehicle
Former chapter 38, paragraph 21-2

What the entry suggests: A misdemeanor amendment and custody notation do not prove the final judgment.

What to verify: Amended charge, judgment, sentence, and discharge date.

Reckless driving

What the entry suggests: No reliable eligibility conclusion from an incomplete disposition.

What to verify: Judgment, age at offense, subsequent driving record, and whether the narrow statutory exception applies.

Entry citing former 720 ILCS 5/12-4

What the entry suggests: The former aggravated-battery citation conflicts with a misdemeanor label. Bond-forfeiture or stricken-off-leave wording is not a final result.

What to verify: The original charge and all later orders. Do not infer either a conviction or a dismissal.

Municipal or quasi-criminal entries with unclear codes

What the entry suggests: No reliable classification until the ordinance and outcome are identified.

What to verify: Exact ordinance, whether criminal in nature, default or judgment terms, and closure status.

What the new rules change: a verified conviction in another case no longer automatically defeats expungement of a separate eligible dismissal. The expanded law may allow a court to seal eligible Illinois convictions. An entry marked “SOL” means “stricken off with leave to reinstate.” The prosecutor may seek to bring the charge back before the court. That entry alone does not establish a final dismissal. Check the court docket and any later orders to determine how the charge ended before deciding whether it qualifies for expungement.

Check the law: 20 ILCS 2630/5.2(b)(1), (b)(1.5), (b)(2), and (c), subject to (a)(3). Illinois Clean Slate Act: Public Act 104-0459

Wisconsin entries require Wisconsin law

Illinois relief does not clear a Wisconsin court record. This hypothetical also includes the following reported Wisconsin offenses:

Resisting or obstructing an officer: Wis. Stat. §946.41(1).
Taking and driving a vehicle without consent: §943.23(2).
Theft: §943.20(1)(a).
Endangering safety by use of a dangerous weapon: §941.20(1)(a).
Operating while intoxicated, second offense: §346.63(1)(a).
Operating with a prohibited alcohol concentration: §346.63(1)(b).
Operating while revoked: §343.44(1)(b).

Some entries report guilty or no-contest outcomes; others say dismissed, dismissed and read in, or merely closed. Check duplicate entries and resolve inconsistent felony and misdemeanor labels. A no-contest plea entry needs the resulting judgment, and “closed” does not identify the disposition.

For older Wisconsin convictions, the sentencing date and the version of Wis. Stat. §973.015 then in effect are critical. The 2009 expansion was not retroactive, as explained in State v. Meinhardt, 2012 WI App 82. If the court imposed the hypothetical sentences before July 1, 2009 and the person was already at least 25 when the offenses occurred, the ordinary age-limited expunction route would not fit those facts.

Check the law: Wis. Stat. §973.015; State v. Meinhardt, 2012 WI App 82. Wisconsin Court of Appeals: State v. Meinhardt

Wisconsin DOJ’s process for removing eligible arrest information is separate from court expunction. A dismissed charge associated with an arrest that also produced a conviction may not qualify for removal from the state criminal-history database. A “dismissed and read in” entry requires particular care.

Check the law: Wis. Stat. §165.84 and Wisconsin DOJ criminal-history guidance. Wisconsin DOJ: correcting criminal history information

This hypothetical does not establish a cannabis offense. The cannabis reforms belong in the general guide. Applying them to this example would require an actual cannabis charge and a qualifying disposition.

How to get started without guessing

Get the court records. Obtain the charging documents, certified dispositions, sentencing orders, and proof of termination or discharge.
Build a charge-by-charge list. Identify the jurisdiction, statute, final outcome, sentence, and completion date. Reconcile duplicates and incorrect identity matches.
Choose the correct route. Expungement, sealing, cannabis relief, and correction of an inaccurate record are different processes.
Use the current court forms. Follow the instructions for the court that handled the case and include the required agencies.
Keep the resulting orders. Check that the agencies covered by the order update their records. A private background report may require a separate correction request.

Get the Illinois Supreme Court’s approved forms and instructions.

The current statute generally allows 60 days for objections after service. Lack of an objection does not mean the record has already been cleared; the court still enters its ruling.

Check the law: 20 ILCS 2630/5.2(d)(5) and (d)(6). Illinois Clean Slate Act: Public Act 104-0459

If immigration is involved, preserve the records first.

State expungement does not necessarily eliminate a conviction for federal immigration purposes. Obtain certified records and review immigration consequences before seeking relief. The federal definition and decisions such as Matter of Roldan treat many rehabilitative expungements differently from state law.

Read Matter of Roldan, 22 I&N Dec. 512 (BIA 1999).

Get your records first: Chicago Police, Illinois State Police, and the FBI

A background report can point you toward a case. To decide what you can clear, you need to know what the police reported and what the court actually decided. A Chicago RAP sheet, an Illinois criminal-history transcript, an FBI summary, and a certified court disposition serve different purposes.

An FBI RAP sheet is not limited to federal offenses.

It can contain state and local arrests reported to the FBI, as well as federal records. A state charge does not become a federal offense simply because it appears in the FBI’s database.

1. Chicago Police: start with your Chicago arrest history

If Chicago Police arrested you, request your Chicago RAP sheet through the department’s Criminal History Access and Review process. Use it to identify arrests and possible case numbers, then compare the entries with the courthouse records.

Download the Chicago Police RAP-sheet handout (PDF). This handout explains the fingerprint-based request process and identifies Police Headquarters at 3510 S. Michigan Avenue. The copy linked here dates to February 2012. Confirm today’s location, hours, identification requirements, fees, and delivery procedure with CPD before visiting. Do not rely on its older juvenile age categories or its statement that the state transcript is available only for viewing.

For help reaching the current CPD service, use Chicago 311. Getting a RAP sheet does not itself file an expungement petition or clear a record.

2. Illinois State Police: request your statewide transcript

Ask an Illinois law enforcement agency, correctional facility, or licensed fingerprint vendor about an Access and Review submission. The provider collects your fingerprints and identifying information and sends them to the Illinois State Police. ISP then sends your transcript and a Record Challenge form, or a statement that it found no criminal history.

ISP does not charge for processing Access and Review or Record Challenge submissions. The fingerprint provider may charge for its service. If the transcript contains an error or omits a disposition, use the challenge process and supply supporting records. Correcting inaccurate information is different from asking a court to expunge an otherwise accurate record.

Official instructions: Illinois State Police: Viewing My Record and Access and Review.

3. Cook County: get the court’s disposition for every count

The Clerk’s disposition identifies the court’s recorded outcome. Ask for a certified disposition for each count, and obtain the judgment, sentence, and later orders when you need them to resolve an unclear entry or establish when a sentence ended. The hypothetical section lists the Chicago felony and misdemeanor records contacts, including the Criminal Division at 26th Street and California Avenue.

The court instructions are lengthy, but the preparation process is manageable:

Collect the records. Gather police histories and court dispositions for each case. An arrest that never led to a court case will not have a court disposition.
Make a case worksheet. Record the agency, case number, charge, result, sentence, and completion date. Resolve missing or conflicting information before deciding eligibility.
Choose the correct relief. Apply the current expungement, sealing, or special cannabis rules to each record.
Complete and file the current forms. Follow the applicable court instructions for filing, fees or a fee waiver, notice, and any hearing.
Keep the order and check the records. Confirm that the agencies covered by the order update their records. Investigate any remaining inaccurate entries separately.

Download the expungement and sealing instruction booklet (July 2021 edition, PDF). It is a statewide Illinois court guide, not a Cook County-only rulebook. Its worksheet and explanations help organize the records, but its eligibility rules and waiting periods predate the 2026 changes. For filing, use the current Illinois Supreme Court forms and instructions and check the Cook County Clerk’s expungement page for local information.

4. FBI: obtain your Identity History Summary and submit fingerprints

The FBI calls its RAP sheet an Identity History Summary. It draws on fingerprint submissions, disposition reports, and other information from authorized criminal justice agencies. A disposition may be missing if the FBI has not received it. Do not assume that the summary contains every case or that every entry reflects the latest court order.

Start at the official FBI site. Read the Identity History Summary instructions, then use the FBI’s electronic request portal.
Complete the application and payment. The FBI currently lists an $18 request fee. Fingerprint collection may cost extra.
Provide fingerprints. After completing the online request, you can use a participating U.S. Post Office for electronic fingerprint submission. The FBI’s instructions link to participating locations. Alternatively, follow its directions for mailing a current fingerprint card with your electronic-request confirmation.
Review the result. Compare it with your certified dispositions. The FBI also offers a mail application and an approved-channeler option, subject to the requirements on its website.

Official instructions: FBI FAQs: fingerprints, fees, and record challenges. This is the personal record-review process; employment and licensing checks may require a different authorized procedure.

If the FBI record is wrong, request a correction

You can challenge inaccurate or incomplete information in your FBI summary. Identify the disputed entry and include supporting documents, such as the certified disposition or an expungement order. The FBI lists no fee for a record challenge.

For expungement or sealing of state arrest information, the FBI directs people to the identification bureau in the state where the offense occurred. For Illinois records, start with ISP. The FBI receives information from authorized agencies; do not assume that every entry comes directly from ISP or that a state court order has already reached every database.

Federal arrest data follows a different rule. The FBI says it removes that data at the submitting agency’s request or upon receipt of a federal court order expressly directing expungement, subject to federal law. This describes how the FBI processes an authorized removal. It does not give everyone a right to expunge a federal case.

Source: FBI FAQs, “Challenge Questions,” especially questions 3, 4, and 6.

Can you expunge a federal offense?

Federal law does not provide a general expungement remedy comparable to Illinois law. A request for an FBI summary does not erase a federal conviction, and an Illinois expungement petition cannot clear a federal court case.

In United States v. Wahi, 850 F.3d 296 (7th Cir. 2017), the court held that a federal district court lacks ancillary jurisdiction to expunge a criminal case’s judicial records solely on equitable grounds. In plain language, the court cannot reopen a closed criminal case and erase its records simply because keeping them causes hardship. Wahi’s indictment had been dismissed, but his employment-related concerns did not supply the missing jurisdiction. The Seventh Circuit overruled its contrary precedents to that extent.

Read the decision: United States v. Wahi, official Seventh Circuit opinion (PDF).

It would still be too broad to say that federal expungement is never available. One narrow exception appears in 18 U.S.C. §3607(c): a person who was under 21 at the time of a qualifying simple-possession offense and received a disposition under §3607(a) may apply for the statutory expungement order. Section 3607(a) has additional requirements, including restrictions concerning prior controlled-substance convictions and prior use of that disposition. This is not a general remedy for federal drug convictions, and §3607(b) preserves a limited nonpublic record.

Read the statute: 18 U.S.C. §3607(a), (b), and (c), official U.S. Code.

Download the documents used in this guide

Anonymous background-report case study (PDF): the reported offenses, possible relief, and records still needed.
Chicago Police RAP-sheet handout (February 2012, PDF): background on the request process; confirm current procedures.
Illinois expungement and sealing instructions (July 2021, PDF): an older organizational guide; use the current court forms and law when filing.

Read the official sources

The links below lead to enacted laws, court materials, and government guidance. In a public act, underlining identifies additions and strikethrough identifies deletions. Use the section numbers provided above to find the relevant provision; plain-text copies can lose that formatting.

Legal review date: September 22, 2026. This guide addresses adult records and minors prosecuted as adults; juvenile records have separate rules. It provides general information and a conditional hypothetical, not a promise of eligibility or a substitute for review of the actual court record.

Posted in Criminal Law, Expungement and Sealing, Expunging and Sealing, Expunging, sealing criminal records | Tagged 20 ILCS 2630/5.2, cannabis expungement, Clean Slate Act, Cook County, criminal records, felony sealing, Illinois sealing, immigration consequences, llinois expungement, Matter of Roldan, minor cannabis offense, Public Act 104-0459, Public Act 104-0463, State v. Meinhardt, Wis. Stat. 973.015, Wisconsin expunction | Leave a comment

The Board Just Turned a 1952 Draft-Dodger Law Into a Permanent, Unwaivable Bar for Aggravated Felons

Posted on September 17, 2026 by Mike Baker

For anyone whose guilty plea or jury verdict comes after September 17, 2026, an aggravated felony conviction can close off the path to a green card by itself. It does this not through the criminal grounds of inadmissibility Congress actually wrote for felons, but through a definition Congress drafted in 1952 for men who dodged the draft. The rule is not retroactive, and it does not reach every aggravated felon, two limits worth stating before anyone panics over an old case. For a noncitizen weighing a plea today, it forecloses a path that a 212(h) waiver used to keep open.

The Board of Immigration Appeals decided Matter of A-V-O-, 30 I&N Dec. 44 (BIA 2026), on September 17, 2026. It overrules Matter of Kanga, 22 I&N Dec. 1206 (BIA 2000), a decision that held the opposite for twenty-six years. Kanga said an aggravated felony conviction did not make a person permanently ineligible to citizenship under section 212(a)(8)(A) of the INA. A-V-O- says it does. The Board applied the new rule prospectively, and its cutoff is precise. It reaches a guilty plea or a nolo plea made after September 17, 2026, or a jury verdict entered after that date. A conviction that rests on a plea or verdict from before the cutoff stays outside the rule.

📄 Read both decisions directlyMatter of A-V-O-, 30 I&N Dec. 44 (BIA 2026), full decision
Matter of Kanga, 22 I&N Dec. 1206 (BIA 2000), full decision

The Case the Board Chose

The respondent in A-V-O- entered on a visitor visa in 1996, overstayed, and drew an in absentia removal order in 2004. Years later she reopened her case. Her 2020 federal convictions were for trafficking in unauthorized access devices and aggravated identity theft. The government put the loss at $345,100 in restitution, owed jointly with her codefendants; she argued the figure tied to her own conduct was $3,450. The Board sided with the government on the loss and treated the conviction as an aggravated felony. Then it announced its new rule. And here is the detail that tells you what kind of decision this is. The Board never applied that rule to her. She lost on separate grounds, a discretionary denial of her 212(h) waiver and a failure to show the hardship it required, and her convictions predated the new cutoff besides. So the Board reached out to overturn twenty-six years of precedent in a case whose outcome never required it. The Board went looking for a rule it could announce where nothing it decided turned on it.

What Kanga Actually Held

Minette Kanga was a native and citizen of Sierra Leone. She overstayed a student visa and was later convicted in North Carolina of a run of theft, forgery, and check offenses. Her sentence for forgery alone ran ten years. Those convictions were aggravated felonies under sections 101(a)(43)(G) and (R) of the INA. She married a United States citizen. He filed a visa petition for her. The government approved it. She sought adjustment of status and a waiver of inadmissibility under section 212(h).

The Immigration Judge would not even let her ask for the waiver. He agreed with the government that her aggravated felony conviction made her permanently ineligible to citizenship under section 212(a)(8)(A), a ground no waiver reaches, and that no 212(h) waiver could fix that. The Board reversed him. It held that “ineligible to citizenship” in section 212(a)(8)(A) has always meant one thing since 1952: a person barred from naturalizing because he evaded military service. Draft dodgers. Deserters. Not felons. The Board sent her case back so she could actually apply for her waiver.

The Chain A-V-O- Built

A-V-O- runs the same provisions through a different sequence and lands somewhere else entirely. Chain four provisions together and an aggravated felony conviction becomes an independent ground of inadmissibility that section 212(h) cannot touch, since 212(h) reaches only the criminal grounds listed in section 212(a)(2). No waiver in the ordinary adjustment route reaches section 212(a)(8)(A). A client could win a 212(h) waiver on the exact conviction that made him deportable and still be barred from adjusting status on the same conviction under a different provision entirely. Here is the chain itself, stated plainly.

⚖️ The rule in four steps

An aggravated felony conviction destroys good moral character. Section 101(f)(8) of the INA says so directly, and it says it permanently. There is no waiting it out.
Good moral character is required to naturalize. Section 316(a) will not let a person become a citizen without it.
Permanent inability to naturalize equals permanent debarment from citizenship. Section 101(a)(19) defines “ineligible to citizenship” as anyone permanently debarred from becoming a citizen under any section of the INA, not only the military service sections that gave the phrase its original meaning in 1952.
Permanent ineligibility to citizenship makes a person inadmissible. Section 212(a)(8)(A) says exactly that, and section 212(h) has no power to waive it.

Four statutory provisions, chained into a result none of them states on its own. Only the first mentions an aggravated felony at all. The defensible criticism is not that the term is missing everywhere. It is that the Board stitched four provisions written for separate purposes into a single unwaivable bar Congress never assembled itself.

What an Aggravated Felony Actually Is

The name misleads almost everyone who hears it for the first time. Section 101(a)(43) of the INA lists roughly twenty-one categories, and most of them have nothing to do with violence. A theft offense with a sentence of one year imposed qualifies under subparagraph (G), and it qualifies even if the client served nine months and walked out early. Early release does not shrink the sentence a court imposed. A fraud or deceit offense qualifies under subparagraph (M)(i) if the loss to the victim exceeds ten thousand dollars, and that one carries no minimum sentence at all. Probation and a fine can still be an aggravated felony if the loss runs high enough. A state court can call the same conduct a misdemeanor. Immigration law does not care what the state called it. The theft categories turn largely on elements and the sentence imposed. The fraud loss figure is different, and worth flagging. The Supreme Court in Nijhawan v. Holder held that the loss amount is a circumstance-specific question tied to the conduct of conviction, not a pure elements match. Either way, a fraud loss exceeding ten thousand dollars, or a one-year sentence on a theft charge, gets there fast.

Where the Board Got This Wrong

Start with the logical defect. Everything else grows out of that one crack. The Board’s chain runs like this: an aggravated felon cannot establish good moral character, so he cannot naturalize; therefore he is “permanently ineligible to citizenship” under section 212(a)(8)(A). Look hard at the joint. “Cannot satisfy a present requirement for naturalization” states one proposition. “Permanently debarred from citizenship as a legal status” states a different one, no more equivalent than saying a person who flunks today’s eligibility test for a hunting license can never hunt again. The first describes a condition that governs an application. The second describes a status the statute reserved, in 1952, for a defined class, the men who evaded military service. The Board treats the two as identical. They are not, and the slide from one to the other is a non sequitur wearing the costume of plain meaning.

That slide is the tell. A-V-O- reads like statutory interpretation and works like policy. The Board wants aggravated felons barred from adjustment, a defensible thing to want and a thing Congress declined to do, so it recites the vocabulary of plain meaning while doing what plain meaning cannot support. The text of section 212(a)(8)(A) never mentioned aggravated felons. Congress knew how to write a criminal ground of inadmissibility. It wrote several directly into section 212(a)(2), and it never placed an aggravated felony conviction there, not in 1988 when Congress created the category, not in 1990, not in the sweeping 1996 overhaul. Kanga read that silence as a choice. A-V-O- reads it as a gap to fill, routing around section 212(a)(2) and landing the same result through a definition Congress wrote before it ever used the phrase aggravated felony.

The strongest version of the objection is structural, and it is the argument worth spending your space on. Kanga had already warned that treating an aggravated felony as citizenship ineligibility would undercut section 212(a)(9)(A), the provision Congress actually wrote for aggravated felons who have been removed and later seek to return, complete with its own consent-to-reapply mechanism. A-V-O- answers with Barton v. Barr, 590 U.S. 222, 239 (2020), for the familiar point that statutes routinely overlap and that redundancy alone does not license rewriting one provision to match another. As a general proposition that is correct. Combining definitions and cross-references is ordinary statutory work, and the Board is right that overlap by itself proves nothing. The real question is narrower. Does this particular construction leave the more specific scheme with meaningful work to do, or does it swallow it. Section 212(a)(9)(A) sets specific conditions, a removal or departure in defined circumstances paired with the conviction, and offers a discretionary path back through consent to reapply. A broad section 212(a)(8)(A) bar reaches the aggravated felon seeking admission whether or not any of that applies, and offers no such path. The Board’s answer, that this is ordinary statutory redundancy, is specious. It sounds reasonable and collapses on inspection. It treats a construction that swallows a more specific provision as though it were the incidental overlap statutes carry all the time. That is the tension a reviewing court has to weigh, and the redundancy answer does not resolve it.

The waiver structure sharpens the same point. Congress restricted section 212(h) so that certain lawful permanent residents with aggravated felony convictions cannot use it. That restriction carries meaning only if aggravated felons could otherwise reach section 212(h). A-V-O- drains most of that meaning. If an aggravated felony conviction is independently and permanently unwaivable under section 212(a)(8)(A), it matters little whether a given applicant falls inside or outside the 212(h) restriction, since either way the separate bar stands. The Board treats that as tolerable redundancy. The better reading is that Congress built section 212(h) as the place where an aggravated felon’s request gets weighed, and a construction that makes that weighing beside the point is one a court exercising independent judgment can reject.

How Many Cases This Reaches

This is not a narrow ruling aimed at a handful of unusual defendants. The aggravated felony category is broad, and it is broad by design. A fraud or deceit offense with a loss exceeding ten thousand dollars qualifies with no minimum sentence at all. A theft offense with one year imposed qualifies even on a suspended sentence. Drug offenses, many firearms offenses, burglary, and a long list of other state and federal crimes qualify without anyone in the room thinking of the underlying conduct as especially grave. Every one of those convictions, resting on a plea or verdict after September 17, 2026, now carries a permanent, unwaivable bar to citizenship and to adjustment of status under section 212(a)(8)(A), on top of whatever criminal ground it already triggered under section 212(a)(2). A client who once needed only a 212(h) waiver to move forward now needs the government never to have reached this new ground in the first place. Once it applies there is nothing left to waive. Every criminal defense lawyer taking a plea for a noncitizen client, in every court in this circuit, is now negotiating with this rule in the room whether anyone names it or not.

A Client This Rule Cannot Touch

Take a client I will call Thomas Whitfield, changed enough here that no one will recognize him. In 1997 he was convicted in Ireland of fraudulent conversion of client funds, roughly forty thousand pounds taken over about a year and a half while he worked at a small brokerage. The court imposed a sentence of one year and a day. He served nine months in custody and was released early, serving the rest of the term under supervision. That distinction matters under section 101(a)(43)(G), the theft category, which looks at the sentence a court imposed, not the time a person actually spent behind bars. Early release never shrinks the sentence a court imposed. He finished the whole term by early 1998 and never touched anything like it again. He married a United States citizen two decades later. USCIS approved his waiver of the underlying inadmissibility in 2025. He was granted permanent residence in March 2026.

A-V-O- does not reach him, and the first reason is the one the Board wrote into its own opinion. The new rule applies only to a plea or a verdict entered after September 17, 2026. Thomas pled guilty in Dublin in 1997. That alone ends the analysis.

Suppose his adjustment were still sitting on an officer’s desk today instead of already granted. The prospective cutoff would still end it since the rule the Board announced simply does not reach a conviction from 1997 no matter when USCIS gets around to deciding the case. But there is a second, independent argument, and a careful lawyer should know it exists even when the first one already wins.

One thing needs separating out before the second argument makes sense. Section 101(a)(43) is not itself a removal statute or an admission statute. It is the shared definition that both of those separate systems borrow. Deportability under section 237(a)(2)(A)(iii) governs a noncitizen who is convicted of the offense at any time after admission, and it asks whether that person can be sent home. The trigger is the conviction after admission, not the date of the underlying conduct. Inadmissibility under section 212(a)(8)(A), the ground A-V-O- just built, governs someone seeking admission or seeking adjustment of status, and it asks whether that person can come in or move forward at all. Naturalization is not decided at this gate either. It runs through its own separate bar, section 101(f)(8) feeding into section 316(a), which has permanently barred an aggravated felon from establishing good moral character since 1990, entirely apart from anything A-V-O- or Kanga ever touched. Three different questions, three different statutory paths, all of them starting from the same conviction. What the first two gates ask before anything else is identical. Does this conviction still qualify as an aggravated felony under section 101(a)(43)? The foreign conviction rule below answers that shared question, and it answers it the same way no matter which of those two gates a person happens to be standing at.

⚖️ The rule almost everyone misses

INA § 101(a)(43), 8 U.S.C. § 1101(a)(43), concluding paragraph (the flush sentence after subparagraph U, unlettered on its own, which is exactly why it gets skipped once a reader finds the category that matches). The statute reads:

“The term applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years.”

Domestic convictions carry no such limit. A conviction under the law of a foreign country does, and only a foreign one. Most aggravated felony litigation never touches this sentence at all. Most convictions in these cases were entered here, where the only fight is whether the elements match one of the lettered categories above it. The moment the conviction is foreign and old enough, this clause stops being a footnote and becomes the entire case.

The conduct can match the definition the day it happens. Conviction, sentence, elements, all of it. But for a foreign conviction the clock runs from completion of the sentence, and it runs against the government. There is a wrinkle worth naming rather than papering over. The statute says the sentence must have been completed “within the previous 15 years,” and courts have had to decide what date the fifteen years run back from. At least one district court, in Taylor, measured the window against the naturalization application date rather than a later date. That order was reversed on a different classification issue, so treat it as illustration, not authority. The measuring-date question is real, and a careful lawyer identifies which date governs the particular proceeding rather than assuming. Once enough time passes under the right measuring date, the foreign conviction stops counting as an aggravated felony under this definition. It does not become less serious. It stops satisfying this particular statute.

Thomas finished his sentence in 1998. Even granting the government every inch on whether his Irish conviction otherwise matches the fraud or theft categories, that conviction aged out of the aggravated felony definition around 2013, more than a decade before A-V-O- existed to reach for it. The classification itself expired before anyone was asking the question.

Two doors close the same case for two different reasons. A lawyer who only knows the first one is still right. A lawyer who knows both is prepared for the case where the first door does not open so easily.

There is a third door worth walking through. Thomas has a green card now and citizenship is the next question his lawyer will eventually face. Naturalization does not run through section 212(a)(8)(A) at all. It runs through its own separate bar in section 101(f)(8), which says a person cannot establish good moral character if convicted of an aggravated felony, and it points directly at section 101(a)(43) in parentheses for what that phrase means. That reference is not decorative. Section 101(f)(8) has no aggravated felony definition of its own. It reaches only what section 101(a)(43) reaches, nothing more, and that includes the flush paragraph exactly the same way it includes every lettered category above it.

A statute cannot borrow half a definition. If the flush paragraph takes Thomas’s conviction outside section 101(a)(43) once fifteen years pass since completion, it takes that same conviction outside section 101(f)(8) as well. Section 101(f)(8) has nothing else to point to. His conviction ages out of the aggravated felony definition for every purpose that definition serves, not only for the one A-V-O- happened to be arguing about. The prospective cutoff that protects him from A-V-O- has nothing to do with this third door. Section 101(f)(8) predates A-V-O- by thirty-six years and would apply with full force to a plea entered tomorrow. What saves him here is the same aging out argument doing a second job, not a second, unrelated shield.

Start with the statutory period itself. It is the piece most people assume they already understand. Section 316(a) of the INA requires an applicant to show good moral character for a fixed window immediately before filing, and it has to continue through the oath. Five years, ordinarily. Three years for someone applying based on marriage to a United States citizen under section 319(a). That window is the default frame an officer is supposed to work inside, and for most applicants it is also the entire frame.

It is not an absolute wall. Federal regulation, 8 C.F.R. § 316.10(a)(2), lets an officer reach past the statutory period and weigh earlier conduct in two situations. Either the conduct inside the period does not itself establish reform, or the earlier conduct bears on the applicant’s present character. The second of those is not obviously narrow, and I will not tell a client it is. The same regulation also identifies November 29, 1990, as the conviction-date line for the permanent aggravated felony bar to good moral character. That power to look at older conduct does not disappear just because a conviction is too old to count as an aggravated felony anymore. Clearing the statutory bar means the officer cannot deny naturalization automatically. It does not stop the officer from weighing the old conviction as one factor in deciding whether the applicant has good moral character today.

Thomas has an approved waiver of the underlying inadmissibility, a green card issued after that waiver, and three decades with nothing resembling the conviction anywhere in his record since. Those are strong favorable facts. They do not, standing alone, dictate the result of a future good-moral-character assessment, and I would not draft an N-400 that assumes they do. The honest posture is optimism with the discretionary question flagged, the completion-date evidence documented, and the hardship record preserved in case an officer reaches for that discretion.

Where the Seventh Circuit Might Take This

The Board’s method has a specific shape. It reads four provisions together to reach a result none of them states alone, and it does so against decades of the government’s own prior position. That shape has drawn scrutiny in this circuit, though the picture is more complicated than a single quotation makes it look, and it is worth stating carefully rather than overselling it.

📄 Read the Seventh Circuit’s opinionCastañon-Nava v. U.S. Dep’t of Homeland Security, No. 25-3050 (7th Cir. May 5, 2026)

In Castañon-Nava, the government pressed a broad reading of a mandatory detention statute. Judge Lee, writing the lead opinion, rejected that reading. He wrote that the government’s construction “not only fails to take full account of the statutory language but ignores the relevant statutory context and background as well as the government’s own contemporaneous and decades-long understanding of the statute’s meaning.” Here is the honest qualification a careful reader needs. That portion of the opinion, the part reaching the merits of the statute, did not command a majority of the panel. Judge Pryor concurred in the judgment and expressly declined to join it, resolving the case on waiver instead. Judge Kirsch dissented and would have accepted the government’s reading. So the statutory analysis is the reasoning of one judge, not a holding of the court. It has persuasive weight and it shows how at least one member of this circuit reads a government stretch. It is not binding precedent, and I will not pretend it is.

Even discounted that way, the reasoning is useful, since A-V-O- presents the same shape of problem. For twenty-six years the Board’s own position was Kanga’s position. The government now asks courts to accept that its binding precedent, repeated across a generation of cases, read the statute wrong the whole time, and that the correct reading sat inside a definition written for those who evaded military service. The Seventh Circuit reviews the Board’s legal conclusions de novo, exercising its own independent judgment after Loper Bright rather than deferring to the agency. See F.J.A.P. v. Garland, 94 F.4th 620, 638 (7th Cir. 2024). Independent judgment is not a forecast of reversal. The Board’s reading can still carry persuasive force, and a panel could adopt it. But a challenger in this circuit starts from a real position. No Seventh Circuit decision forecloses the argument, one judge has already shown skepticism toward this kind of government stretch, and the court owes the Board no deference on the question.

The Duty This Puts on Criminal Defense Lawyers

The Supreme Court decided Padilla v. Kentucky, 559 U.S. 356 (2010), and it did not pretend immigration law was simple. The Court recognized that the immigration consequences of a plea are often unclear, and it drew a line. Where the consequence is truly clear, counsel must give the client correct advice. Where the law is uncertain, counsel must at least warn that a plea may carry immigration consequences. A-V-O- lands squarely on the wrong side of that line for most criminal practitioners, and the practical lesson is not that Padilla failed to foresee it. The lesson is that this development makes early consultation with immigration counsel more essential, not less.

A criminal defense lawyer sitting across from a noncitizen client usually asks one question first. Will this conviction get my client deported? For an aggravated felony that answer has been settled for decades. Section 237(a)(2)(A)(iii) of the INA makes an aggravated felony conviction a ground of removal for a noncitizen convicted after admission, and any competent defense lawyer knows to check it. The harder question, and the one a four-provision chain that took the Board itself twenty-six years to reverse makes easy to miss, runs the other direction. Does this same conviction quietly close off something the client has not yet applied for? A future naturalization application. A green card a spouse is trying to petition for. Defense lawyers do not always know the precise immigration status of the person in front of them, and a lawyer who checked only for deportability, the question he already knew to ask, could miss this consequence entirely unless he knows the decision exists or asks someone who does.

A fraud plea with a loss exceeding ten thousand dollars now carries exposure the ordinary adjustment waiver cannot reach, and it carries that exposure regardless of the sentence imposed. A theft plea with a year imposed carries the same exposure even if the client never serves a full year. None of this makes correct advice impossible. It makes the immigration question one a criminal defense lawyer should route to someone who lives in this statute before the plea, not after.

What the Rule Does Not Ask

Every decision like this draws the same reaction from people who stop at the headline. Certain people are guests here. Hold guests to the highest standard, a “Singapore level” standard. People who reach for that phrase are not usually citing a statute. They mean maximalist enforcement, harsh penalties applied without exception, zero patience for a second chance. Enforce it and stop making excuses.

The instinct is not crazy. Nobody thinks people should escape consequences for breaking the law. But that reaction skips the real question sitting underneath it, and the real question has nothing to do with whether we enforce the law. It has everything to do with whether we apply that law to an actual person or apply it to a category.

A-V-O- chose the category. Section 212(a)(8)(A) does not ask who stands in front of the officer. It does not ask about a citizen parent facing the removal of a son or a daughter. It does not ask about a citizen child staying behind while a parent leaves. It does not ask about a spouse who built two decades of marriage here, a person fighting a disease with no available treatment in the country awaiting his return, or someone who made one mistake thirty years ago and has spent every year since proving exactly who he is now. Section 212(h) used to ask those questions, for the aggravated felons who could still reach it. A-V-O- removes the question entirely.

That is the real stake. The question a reviewing court will ask is not whether categorical rules are ever permissible. They plainly are, where Congress writes them. The question is whether Congress authorized this one, or whether the Board manufactured a categorical, waiver-proof bar out of provisions Congress built to be weighed case by case. Congress wrote section 212(h) so an aggravated felon’s request could be heard on its facts. A construction that turns that hearing into an empty formality is the construction a court gets to test.

There is an old distinction in Jewish legal thought worth borrowing here, and it says something similar in older language. Some laws carry a reason built into them, laws a person can question and argue with, called mishpatim. Other laws arrive as bare command. Nobody explains them. You obey because someone in authority said so. Those are chukim. Alan Dershowitz spends an entire book, The Genesis of Justice, tracing a related arc through the earliest stories in Genesis. God tells Adam and Eve not to eat from one particular tree and never explains why. Dershowitz reads that as the model for arbitrary, unexplained command, and argues the rest of Genesis builds a slow, often brutal case for replacing command with reasoned law. A “Singapore level” standard is a chok. Punishment follows once someone checks the box, and nobody asks why this person, this fact, this year. Congress built section 212(h) as a mishpat. It asked why, and the answer could change the outcome. A-V-O- swaps one for the other.

None of this means a command-based system never works. It can. Rigid rules are easier to administer than case-by-case judgment, and a purely categorical rule is more efficient every time. But efficiency has never been the thing that keeps a society free, and every step away from reasoned, individualized law toward bare command works against the values that actually keep a democracy running. A country can make that trade. It should at least admit the trade it is making.

Systems that leave no room for correction or mercy tend to become harder places to live than the ones they replace. That is a moral judgment, not a legal holding, and I offer it as one. A legal order that can still weigh the individual in front of it, and still extend mercy when the facts earn it, is usually a freer one than the order that cannot.

A-V-O- overrules twenty-six years of settled law, reaches only pleas and verdicts entered after September 17, 2026, and builds a ground of inadmissibility the ordinary adjustment waiver cannot reach. The reasoning reads four provisions together to arrive at a result none of them states directly, against the Board’s own long-settled prior position. Whether that reading holds is a question the courts of appeals will decide de novo, owing the Board no deference under Loper Bright, and the structural objection built around Congress’s specific waiver scheme is where a skeptical judge is most likely to test it. If a petition for review reaches this, the challenger starts from a real position, not a hopeless one.

Download Matter of A-V-O- (PDF)

This post is legal analysis and commentary, not legal advice, and it does not create an attorney-client relationship. The client example above has been altered to protect the identity of an actual client and does not describe his real facts. Immigration consequences depend on the specific facts of a case. If a plea in your own matter may involve a fraud or theft conviction, talk to an immigration attorney before you enter it.

[Reserved for dated updates, any petition for review filed in the Seventh Circuit or elsewhere]

Check back here for developments.

Posted in Adjustment of Status, Aggravated felony, AGGRAVATED FELONY CASE SUMMARY, BIA, Board of Immigration Appeals | Tagged 212(h) waiver, aggravated felony, BIA, Castañon-Nava, crimmigration, INA 101(a)(19), INA 212(a)(8)(A), INA 316(a), ineligible to citizenship, Matter of A-V-O-, Matter of Kanga, naturalization, Padilla v. Kentucky, Seventh Circuit | Leave a comment

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