Madison Boyer

A proposed reform is coming to the U.S. immigration system concerning asylum seekers.

The reform would allow asylum claims to be heard by lower raking administrators to ease the backlog of cases in the immigration courts.[1]  A Notice of Proposed Rulemaking was issued jointly by the Executive Office for Immigration Review (part of the Department of Justice), and U.S. Citizenship and Immigration Services (“USCIS”)(out of the Department of Homeland Security).[2]  The proposed rule, entitled “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers,” seeks to remedy the current backlog of asylum claims.[3]  

Only roughly sixty percent of asylum applications filed since 2001 have been completed, meaning that over 660,000 cases are still pending.[4]  The wait for those pending cases has ballooned to nearly five years.[5]  The proposed rule would ease the administrative burden by allowing asylum officers within USCIS to initially adjudicate whether an applicant would be entitled to asylum, withholding of removal, or protection under the Convention Against Torture (“CAT”).[6]  Individuals whose applications are denied by the asylum officer would be able to seek review of the decision by an immigration judge.[7]  

The backlog of asylum cases largely stems from a massive increase in asylum applications beginning in 2016.[8]  Between 2016-2020, over 450,000 cases were added to the backlog–an increase of 276%.[9] The COVID-19 pandemic also caused all of USCIS’s asylum offices to close and prevented any asylum interviews from March 2020 through June 2020.[10]  USCIS states that the backlog is “the result of a prolonged, significant increase in affirmative asylum application filings and credible fear screenings . . . . ”[11]  It further states that “despite significant staffing increases . . . workloads outpaced the expansion of asylum office staffing and the establishment of new or expanded facilities . . . . ”[12]  USCIS also points out that it is a “largely a fee-funded agency” and that the “drop in new receipt filings [due to the COVID-19 pandemic] reduced revenue and resulted in a national hiring freeze.”[13]  Together, these conditions created a “perfect storm” that resulted in the immense increase in the backlog of immigration cases.

The proposed rule points out that the demographics of immigration has changed radically since the immigration and asylum system was put into place.[14]   “Since the mid-2010s, the demographic characteristics of noncitizens encountered at the border with Mexico . . . consist[s] mainly of nationals from the Northern Triangle countries of Central America (El Salvador, Guatemala, and Honduras) . . . including large numbers of families and unaccompanied children . . . . ”[15]  Fewer than a quarter of southwest border apprehensions in 2019 involved Mexican nationals.[16]  A decade earlier, Mexican nationals accounted for 92% of apprehensions.[17]  Most significantly, in 2019 a record high number of families were apprehended at the border – 56% of the total apprehensions were “family unit aliens.”[18]

In July 2021, over 200,000 interactions occurred at the border.[19]  Of those, close to half involved families with children or unaccompanied children.[20]  A third of all pending immigration cases involve children, and 40% of those are toddlers under the age of 4.[21]  However, the DOJ/DHS proposed rule “would not apply to unaccompanied children.”[22]  The rule is intended to decrease the backlog of asylum cases by applying the rule “only to recently-arrived individuals who are subject to expedited removal–i.e., adults and families.”[23]  Unaccompanied minors are “statutorily exempt from being placed into expedited removal” proceedings,[24] a process by which recently arrived immigrants who are not lawfully in the United States are deported by a low-level immigration officer with “virtually . . . unchecked authority.”[25]  So, although the rule does not allow children to be deported under expedited removal, neither does it do anything to help the newly arrived unaccompanied minors.

During the fiscal year 2021, 147,000 unaccompanied children presented themselves at the U.S.-Mexico border.[26]  The immigration system was woefully unprepared for the unprecedented amount of arrivals, and was forced to place children in “makeshift housing facilities that were not designed to house minors and lacked the standards of care enforced at traditional [Health and Human Services] shelters.”[27]  

USCIS’s new rule, once enacted, will be a useful tool in decreasing the immigration backlog that is causing undue delay for legal immigrants and asylum seekers across the country.  However, there is still much work needed in order to update the immigration system to account for modern immigration patterns, including the increase in families and unaccompanied migrant children who are arriving at the border.

[1] Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers, 86 Fed. Reg. 46,906, 46,907 (Aug. 20, 2021).

[2] Id. at 46,906.

[3] Id.

[4] TRAC Immigration, A Mounting Asylum Backlog and Growing Wait Times, Syracuse Univ. (Dec. 22, 2021),

[5] Id.

[6] Procedures for Credible Fear Screening and Consideration of Asylum, 86 Fed. Reg. at 46,907.

[7] Id. at 46,911.

[8] TRAC Immigration, supra note 4.

[9] TRAC Immigration, supra note 4.

[10] U.S. Citizenship and Immigration Services, Backlog Reduction of Pending Affirmative Asylum Cases, Dep’t Homeland Sec., at ii (Oct. 20, 2021),

[11] Id.

[12] Id.

[13] Id.

[14] Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers, 86 Fed. Reg. 46,906, 46,908 (Aug. 20, 2021).

[15] Id.

[16] Id.

[17] Id.

[18] Mike Guo, Immigration Enforcement Actions: 2019, Off. Immigr. Stats., Dep’t Homeland Sec. (Sept. 2020),

[19] Alyssa Aquino, DHS Floats Role For Asylum Officers to Ease Court Backlog, Law360 (Aug. 18, 2021, 12:23 PM),

[20] Id.

[21] Mike LaSusa, Toddlers Make Up 40% of Kids’ Immigration Court Cases, Law360 (Mar. 17, 2022, 9:49 PM),

[22] Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers, 86 Fed. Reg. 46,906, 46,910 (Aug. 20, 2021).

[23] Id. at 46,926.

[24] Id.

[25] A Primer on Expedited Removal, Am. Immigr. Council (July 22, 2019),

[26] Camilo Montoya-Galvez, U.S. Shelters Received a Record 122,000 Unaccompanied Migrant Children in 2021, CBS News (Dec. 23, 2021, 9:15 AM),

[27] Id.

Photo by Greg Bulla from Unsplash

By Matthew Hooker

Spencer v. Virginia State Univ.

            In this civil case, the Fourth Circuit affirmed a grant of summary judgment in favor of Virginia State University concerning the plaintiff’s claim that she was sexually discriminated against with respect to her salary. The plaintiff, a sociology professor, earned a median salary when compared to men who were also full professors in the same department. But the plaintiff argued that the court should compare her pay to that of two former university administrators who earned at least $30,000 more than her. But the Fourth Circuit held that because the plaintiff and these two men did not perform “equal” work requiring “equal skill, effort, and responsibility,” she could not prevail under the Equal Pay Act. “Professors are not interchangeable like widgets.” The two men taught in different departments than the plaintiff, taught at a higher class level, and worked more hours. The Fourth Circuit also held the plaintiff could not prevail under Title VII because the university had explained the pay disparity by showing its practice of paying administrators 9/12ths of their previous salary, which was a nondiscriminatory reason.

United States v. Davis

            In this criminal case, the Fourth Circuit held that the district court did not abuse its discretion in admitting certain pieces of evidence when the defendant was ultimately convicted for distribution of over 50 grams of methamphetamine. The defendant had also objected to the use of coconspirator testimony for sentencing purposes after the jury had acquitted him on a charged conspiracy count.

            The Fourth Circuit first held that the admission of an out-of-court statement of an informant was not an abuse of discretion because the testimony was offered as an explanation or motive for the officers’ use of the informant, so the testimony was not hearsay under Federal Rule of Evidence 801(c). The Fourth Circuit next held that the government properly authenticated certain photos introduced at trial because, even though there was no direct evidence to authenticate, the context was sufficient to authenticate since “the burden to authenticate under Rule 901 is not high.” The Fourth Circuit also held that an officer’s familiarity with the defendant’s voice was enough to authenticate a recording of a telephone conversation since the officer had in-person conversations with the defendant such that the officer would be able to recognize his voice.

            Finally, the Fourth Circuit held that the district court properly explained the sentence imposed, even though the court considered acquitted conduct in establishing the drug amounts. Since it has long been acceptable to consider such conduct, and because the district court did explain its consideration and the defendant’s contrary arguments, the explanation was adequate.

Duncan v. Barr

            In this immigration case, the Fourth Circuit held that the Board of Immigration Appeals (“BIA”) applied the incorrect standard of review in reviewing an immigration judge’s (“IJ”) determinations. The IJ had concluded that the petitioner was not in his father’s physical custody under the Child Citizenship Act of 2000 (“CCA”), subjecting the petitioner to removal proceedings. In a case of first impression, the Fourth Circuit concluded that whether an individual was in the “physical custody” of a parent under the CCA is a mixed question of fact and law, requiring a bifurcated approach. The Fourth Circuit held that the application of the facts to the relevant state law in determining whether an individual satisfies the physical custody requirement is a legal judgment subject to de novo review by the BIA. Since the BIA reviewed for clear error, remand of the case was necessary for application of the correct standard.

Vasquez v. Barr

            In this immigration case, the Fourth Circuit held that the Board of Immigration Appeals (“BIA”) failed to fully consider all relevant evidence in support of the petitioner’s claim for asylum and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). The petitioner had expressed great fear that she and her son would be tortured or even murdered by the 18th Street gang if they were removed and sent back to El Salvador. In reviewing the immigration judge’s (“IJ”) denial of relief, the BIA did not adopt the IJ’s opinion but instead offered its own reasons for denying relief, so the Fourth Circuit reviewed the BIA’s reasons. Although the BIA had considered country condition reports, it had ignored the petitioner’s testimony that she twice sought the aid of local police and twice was turned away. Since the BIA wholly failed to consider this evidence, the Fourth Circuit remanded the case for review of all relevant evidence.

Attkisson v. Holder

            In this civil case, the Fourth Circuit affirmed a dismissal for failure to state a claim where the plaintiffs sued a number of government officials and corporate entities for alleged illegal intrusions into the plaintiffs’ electronic devices to conduct unlawful surveillance. The Fourth Circuit first held that the plaintiffs failed to state a Bivens claim. Although Bivens itself recognized a remedy for Fourth Amendment violations, the Fourth Circuit viewed the plaintiffs’ claim as presenting a “new Bivens context” because of the rank of the government officials here and the use of electronic surveillance. Since this was a new Bivens context, the Fourth Circuit had to consider whether there were special factors suggesting denying a cause of action. Here, the Fourth Circuit held such factors were present since Congress had already explicitly legislated in this area without authorizing damages for a Fourth Amendment violation.

            The Fourth Circuit next held that the plaintiffs failed to state a claim under the Electronic Communications Privacy Act (“ECPA”) because the defendants in question were entitled to qualified immunity. In doing so, the Fourth Circuit declined to review the district court’s interpretation of the ECPA and instead held that qualified immunity was appropriate since there was a “lack of settled precedent supporting the plaintiffs’ ECPA claim.”

            Finally, the Fourth Circuit upheld dismissal of the complaint against certain Verizon entities and John Doe agents. Because the plaintiffs had failed to identify or serve any of the John Doe agents, had failed to prosecute their claims, and had failed to respect court orders, the Fourth Circuit held there was no abuse of discretion for the district court to dismiss the complaint as to these final parties.

Brundle v. Wilmington Trust, N.A.

            In this civil case, the Fourth Circuit affirmed a judgment finding that an Employee Stock Ownership Plan (“ESOP”) trustee breached its fiduciary duties under the Employee Retirement Income Security Act of 1974 (“ERISA”). The Fourth Circuit noted that, under ERISA, there need not be proof that the fiduciary acted in bad faith, but only that the fiduciary failed to act solely in the interest of the ESOP participants. The defendant primarily challenged the district court’s findings of fact during the bench trial, but the Fourth Circuit held that there was no clear error in those findings. The Fourth Circuit also held that there was no clear error in the district court’s damages award.

By: Evan Reid and Ashley Collette

On February 13, 2018, the United States Court of Appeals for the Fourth Circuit published an opinion in Salgado-Sosa v. Sessions, a highly anticipated immigration case.  With the increase in Honduran nationals claiming persecution and seeking asylum in the United States, this case will likely have a far-reaching impact on the broader immigration conversation.   

Facts and Procedural History

Reynaldo Salgado-Sosa is a native and citizen of Honduras who entered the United States without inspection in August 2005.  In September 2010, Salgado-Sosa was charged with violating section 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”) and became subject to removal.  Salgado-Sosa conceded removability but applied for asylum, withholding of removal, and protection under the Convention Against Torture.

Salgado-Sosa feared that if he returned to Honduras he would be persecuted at the hands of a violent gang, Mara Salvatrucha (“MS-13”).  MS-13 gang members have repeatedly attacked Salgado-Sosa’s family for failing to pay them to protect the family’s convenience store and automobile repair shop in Tegucigalpa, Honduras.  Salgado-Sosa’s family attempted to fight back and contacted the police in order to have the gang members arrested.  However, all of the suspected gang members were eventually released without charges.

At Salgado-Sosa’s removal hearing, both Salgado-Sosa and his stepfather presented testimony and evidence regarding the events that led to his fleeing Honduras for the United States.  Salgado-Sosa noted that his family warned him that MS-13 continues to question his whereabouts, which causes him to remain in fear of returning to Honduras.  

Even though the immigration judge (“IJ”) found Salgado-Sosa’s claims of fear credible, the IJ denied his asylum application as untimely filed because under the INA, individuals applying for asylum must file their application within one year of arriving in the United States.  Salgado-Sosa argued that he qualified for a statutory “changed circumstances” exception.  The IJ rejected that argument, finding that because the attacks by MS-13 remained the basis for Salgado-Sosa’s fear of return, he had not shown a material change in circumstances.

The IJ also found that Salgado-Sosa was not entitled to withholding of removal because he did not establish a clear probability that his life would be threatened because of one of several protected grounds.  While family can be considered a cognizable particular social group, the IJ noted that Salgado-Sosa did not satisfy the “nexus” requirement that he feared persecution on account of those family ties.

The IJ also denied relief to Salgado-Sosa under the Convention Against Torture as it requires the finding that if Salgado-Sosa was removed then he would more likely than not be tortured.

Salgado-Sosa appealed the decision to a one-member panel of the Board of Immigration Appeals (“Board”), which affirmed the IJ’s findings and dismissed Salgado-Sosa’s appeal.  The focus of the proceedings before the Board was on whether Salgado-Sosa was able to show that MS-13’s threats were related to his membership in a cognizable “particular social group.”  The Board found that Salgado-Sosa had not established the required nexus between his membership in a particular social group and MS-13’s threats and thus denied his request for withholding of removal.  Separately, the Board denied Salgado-Sosa’s asylum application as it was untimely and there was insufficient evidence to justify protection under the Convention Against Torture.

Salgado-Sosa petitioned the United States Court of Appeals for the Fourth Circuit to review the Board’s decision.  The primary issues on appeal were Salgado-Sosa’s application for asylum and withholding of removal.

Timeliness of Application for Asylum and Withholding of Removal

The appeal reviewed both the Board’s decision as well as the IJ’s opinion because the Board affirmed the IJ’s decision with an opinion of its own.  In reviewing the decisions, the court noted that while there are some differences between asylum and withholding of removal, the core condition of eligibility is the same:  “that there be a nexus between threatened persecution and a protected status.”

The court concluded that the IJ and the Board erred in finding that Salgado-Sosa had not met the nexus requirement because one of the main reasons for Salgado-Sosa’s persecution by MS-13 was based on his membership in his family, which is a protected social group under the INA.  The court looked to ample evidence that corroborated the centrality of family ties to the fear of persecution.  Specifically, “Salgado-Sosa’s relationship to his stepfather (and to his family) is indisputably ‘why [he], and not another person, was threatened’ by MS-13.”  Accordingly, the court vacated the denial of withholding of removal and remanded for further proceedings on this particular claim.

Turning to the asylum claim, the United States Court of Appeals for the Fourth Circuit stated that while the court “generally lack[s] jurisdiction to review discretionary determinations that an asylum application failed to establish changed circumstances,” it does have jurisdiction when the appeal presents a constitutional question of law.  However, the question of law at issue here was not raised before the IJ and thus the Board did not reach the claim and Salgado-Sosa did not exhaust his administrative remedies.  While this would normally end the inquiry, in light of the court’s recent decision in Zambrano v. Sessions the court remanded the asylum claim separately for consideration.


This opinion highlights the complexities in immigration issues and the role that semantics play in determining those issues.  With immigration matters a top priority for the Executive Branch, more opinions wading through the INA are sure to follow.


Weekly Roundup: 2/12-2/16

By: Mary Kate Gladstone & Robert Tucci

U.S. v. Cowden

In this case, the defendant, a former lieutenant with a West Virginia Sheriff’s Office, appealed his conviction for deprivation of rights under the color of law in violation 18 U.S.C. § 242 after he assaulted an arrestee.  On appeal, the defendant argued that the district court erred in admitting evidence of his prior uses of force; that the evidence was insufficient to support his conviction; that the jury was improperly instructed on the elements of the offense; and that he should not have been held liable for injuries to the arrestee when a different officer was the one arresting him, but the Fourth Circuit affirmed on all accounts.

Intl. Refugee Assistance v. Donald J. Trump

This is a consolidated appeal of three separate cases seeking injunctive and declaratory relief, asserting that Proclamation No. 9645, Enhancing Vetting Capabilities and Process for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats, and Executive Order 13,780, Protecting the Nation From Foreign Terrorist Entry into the United States, violate the Immigration and Nationality Act, the Establishment Clause of the First Amendment, the Free Speech and Free Association Clauses of the First Amendment, the equal protection and procedural due process guarantees of the Due Process Clause of the Fifth Amendment, the Religious Freedom Restoration Act, the Refugee Act, and the Administrative Procedure Act. The Fourth Circuit affirmed the preliminary injunction granted by the district court, noting that the Executive Order and Proclamation were “unconstitutionally tainted with animus toward Islam” based on their contents and the context of official statements made by President Trump.

U.S. v. Smith

In this case, defendant Antoine Smith appealed his enhanced prison sentence under 18 U.S.C. § 924(e)(2)(B)(i), the Armed Career Criminal Act (ACCA), arguing that one of his prior convictions, voluntary manslaughter (a North Carolina crime), is not a violent felony within the meaning of the force clause of the ACCA. The Fourth Circuit disagreed, holding that voluntary manslaughter in North Carolina requires an intentional killing, thus involving “the use, attempted use, or threatened use of physical force against the person of another” as required by the force clause of the ACCA.

Salgado-Sosa v. Sessions

In this case, plaintiff and Honduras citizen Reynaldo Salgado-Sosa petitioned for review of the denial of his asylum application, and requested the court to grant a withholding of removal and protection under the Convention Against Torture. In requesting relief, Salgado-Sosa stated that he feared he would face persecution if he was returned to Honduras, as the gang MS-13 has repeatedly attacked his family for resisting extortion demands. The Fourth Circuit vacated and remanded in part, finding that the Board of Immigration Appeals erroneously rejected Salgado-Sosa’s withholding of removal on the grounds that Salgado-Sosa could not establish a “nexus” between MS-13’s threats and membership in a cognizable “particular social group” – his family – and remanded the asylum claim for consideration of whether the untimely application exception in Zambrano v. Sessions is applicable in Salgado-Sosa’s case. 

E.W. v. Dolgos

Plaintiff E.W., a minor and elementary school student, appealed the district court’s grant of summary judgment for defendant Dolgos, a school resource officer, in E.W.’s 42 U.S.C. § 1983 action, which alleged that Dolgos used excessive force in handcuffing a calm and compliant E.W. for an altercation with another student that occurred several days prior, thus violating the Fourth Amendment and several state law claims. The Fourth Circuit affirmed the district court’s decision, finding that Dolgos was entitled to both federal qualified immunity an state statutory immunity under the Maryland Tort Claims Act.

By Kelsey Hyde

On March 14, 2017, the Fourth Circuit amended their March 13, 2017 published opinion in the case of Cantillano Cruz v. Sessions III where the Court granted a petition for review of a final order from the Board of Immigration Appeals (BIA). In its decision, the Court reversed the administrative court’s denial of asylum to Luz Marina Cantillano Cruz (Cantillano Cruz), and remanded the case to BIA for further proceedings. In reversing the agency’s determination, the Court found that the BIA erroneously concluded that Cantillano Cruz failed to meet the statutory nexus requirement for asylum relief.

Factual Background Leading to Asylum Claims

Cantillano Cruz, a citizen of Honduras, began living with the late Johnny Martinez (Martinez) in 2003. Although the couple never married, they were considered married by the surrounding community and also had two children together. In 2007, Martinez obtained employment working for Danny Avila (Avila) as a personal bodyguard. Avila claimed to be a “fisherman” and Martinez regularly accompanied him on “fishing trips” for approximately five years. However, Martinez eventually discovered that Avila worked closely with organized crime groups of Honduras and Colombia, trafficking drugs and firearms. In 2012, Martinez disclosed to Cantillano Cruz his plan to quit based on Avila’s criminal conduct. A week later, Martinez left for a “fishing trip” with Avila and never returned.

Cantillano Cruz and family members searched for Martinez, unsuccessfully, and were threatened by Avila to cease looking and asking questions, or they would “suffer the same fate” as Martinez. Avila then continued these threats by calling Cantillano Cruz, loitering outside her home, firing weapons near her home, threatening the lives of her children, and even killing her dogs.

In 2014, as a result of these threats by Avila, Cantillano Cruz fled Honduras with her young children, entered the United States without authorization, and requested asylum relief. The Department of Homeland Security (DHS) charged her as an alien present in the United States without permission, under 8 U.S.C. § 1182(a)(6)(A)(i). Cantillano Cruz conceded this, but filed for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).

Determinations of Immigration Judge & Board of Immigration Appeals

The Immigration Judge (IJ) found that although Cantillano Cruz was a member of a particular social group, the nuclear family of Johnny Martinez, she failed to show past or future persecution on account of membership in this group.  Instead, the IJ concluded the major reason Avila targeted Cantillano Cruz was to deter her from contacting the police, a reasoning which could have occurred regardless of their familial relationship, and consequently denied her application for asylum and withholding of removal. The IJ also rejected her request for protection under CAT, finding that the threats against her had never escalated to violence and that Avila only threatened to commit violence if Cantillano Cruz contacted the police, which she had expressed no intention of doing. In Cantillano Cruz’s appeal to the BIA, the BIA adopted the conclusions made by the IJ, supplemented with its own reasoning, and dismissed her appeal. On appeal to the Fourth Circuit, Cantillano Cruz claimed that the BIA and IJ both erred in their conclusion that she was not persecuted based on her membership in Martinez’s nuclear family.

Issues & Standards of Review On Appeal

An applicant seeking asylum must establish her inability, or unwillingness, to return to her home country based on persecution or well-founded fear of persecution on account of some protected ground, such as nationality or membership in a particular social group. 8 U.S.C. § 1101(a)(42)(A). Persecution occurs “on account of” one’s membership in an immediate family when that relationship is at least one central reason for the feared prosecution. Crespin-Valladares v. Holder, 632 F.3d 117, 127 (4th Cir. 2011). The Fourth Circuit does not limit this “statutory nexus requirement” to situations where one’s membership is the sole reason for their persecution, but instead recognizes that many central reasons can motivate such actions. Oliva v. Lynch, 807 F.3d 53, 59 (4th Cir. 2015).

On appeal, the Fourth Circuit considered both of the lower rulings, on account of the fact that the BIA adopted yet supplemented the IJ’s conclusions. The court reviewed de novo the question of whether the BIA and IJ applied the correct legal standard in determining whether Cantillano Cruz met the statutory nexus requirement. Then, the court reviewed the BIA and IJ’s determinations of factual questions, those regarding Avila’s motivations for the persecution, by considering whether these conclusions were supported by substantial evidence. Finally, the Fourth Circuit reviewed the IJ’s factual findings as conclusive unless another reasonable adjudicator would be compelled to reach a different conclusion.

Fourth Circuit Grants Petition & Reverses Administrative Court’s Findings

The Court held that the IJ and BIA applied an improper, excessively narrow standard when interpreting the statutory nexus requirement. Ultimately, the IJ and BIA improperly focused on one central reason for Avila’s threats, to deter Cantillano Cruz from contacting the police, but failed to recognize the other central and intertwined reason for the threats, her existence in the nuclear family of Martinez. The court noted that the IJ and BIA essentially seemed to require that Cantillano Cruz prove the threats were solely based on her status as Martinez’s wife, which was an improper condition to mandate.

Additionally, the court emphasized that the evidence clearly showed Cantillano Cruz knew about Avila’s criminal conduct as a result of her status as a member of Martinez’s nuclear family. Thus, the court reviewed the record and found that it was sufficient to compel the conclusion that Cantillano Cruz satisfied the statutory nexus requirement, as the evidence clearly demonstrated that she was persecuted as a result of her familial relationship with Martinez and the knowledge she obtained about Avila as a result of this relationship. Accordingly, the BIA and IJ’s conclusions were found to be contrary to law and an abuse of discretion, necessitating their reversal.

Because of this conclusion, the Court did not address whether Cantillano Cruz satisfied the requirements of CAT relief by showing the likelihood of torture if returned to Honduras. However, the Court held that, if asylum relief was still declined, the BIA ought to reconsider the CAT claim consistent with the conclusions of this opinion.


By Mike Stephens

In a civil case, Zhikeng Tang v. Loretta E. Lynch, decided today, October 28, 2016, the Fourth Circuit denied petition for review of an order from the Board of Immigration Appeals (“Board”) denying requests for asylum, withholding of removal, and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). The Court ultimately denied the Petitioner’s petition for review because substantial evidence supported the Board’s decision.

Facts and Procedural History

The Petitioner, Zhikeng Tang (“Tang”), is a native and citizen of China. In July 2009, Tang entered the United States illegally. Tang was introduced to Catholicism in 2011 and began attending a church. In 2011, Tang filed for asylum and the United States government began removal proceedings.

At a hearing before an immigration judge (“IJ”), Tang requested asylum, withholding of removal, and CAT protection based on his religious practice. Tang produced evidence of his membership in the Catholic Church and testified that his faith was genuine. Tang argued that his practice of the Catholic faith required attendance in an underground church in China and not a church sanctioned by the Chinese government. Tang claimed that removal to China would result in persecution from the Chinese government due to his participation in an underground church. In support of this argument, Tang provided the IJ with letters from his family that showed underground churches in China were persecuted. In addition, Tang also produced two State Department reports that criticized the Chinese government’s treatment of religious groups in China.

While the IJ found Tang’s testimony to be credible, the IJ rejected Tang’s asylum request. The IJ found that Tang did not provide sufficient evidence to show that Tang “faces an objectively reasonable risk of persecution on account of his Roman Catholicism.’ Additionally, because Tang’s claim for asylum failed, the IJ determined Tang had failed to meet the higher standard required for withholding of removal. Lastly, the IJ also concluded that Tang did not show sufficient evidence that his chances of torture were “more likely than not” upon removal to China.

The Board, on administrative appeal, upheld the IJ’s conclusion that Tang had failed to meet his burden for asylum or withholding of removal. The Board noted that Tang had not shown that the Chinese government knew or would gain knowledge of Tang’s faith and that Tang had not “established that there is a pattern or practice of persecution in China of persons similarly situated to him.” In addition, the Board concluded that Tang had waived his CAT claim because he did not challenge the IJ’s ruling on this claim. Tang appealed, challenging the Board’s denial of asylum, withholding of removal, and CAT protection.


Tang argued the Board erred in denying his request for asylum, claiming that he met his burden of proof required for showing a fear of persecution in China. Tang claims that the instances of persecution evidenced in the letters from China and the State Department reports show a “pattern or practice of persecution in China.”

The Fourth Circuit rejected Tang’s argument and upheld the Board’s denial of asylum. The Court held that Tang’s evidence was not sufficient to allow a reasonable fact-finder “to conclude that the requisite fear of persecution existed.” While the Fourth Circuit found that Tang satisfied the subjective component required for asylum, the Court determined that Tang had failed to demonstrate an objective fear of persecution.

The Court found that Tang did not meet either of the requirements to satisfy the objective component provided for within 8 C.F.R. § 1208.13(b)(2). First, the Court concluded that Tang had waived a challenge to the Board’s conclusion that he would face individual persecution from the Chinese government because he failed to raise this argument. Second, the Fourth Circuit determined that Tang did not satisfy his burden of proving “an objectively reasonable chance” of facing a pattern or practice of persecution in China. The Court noted that the two State Department reports that Tang provided showed that the Chinese government recognized the Catholic faith and also permitted practice of the faith in churches and at home. Additionally, the reports and the letters from Tang’s family only showed “random” or “isolated and sporadic” instances of harassment. Thus, because the persecution was not “thorough or systematic,” the Fourth Circuit declined to “disturb the Board’s conclusion that Tang failed to establish a well-founded fear of persecution.”

Withholding of Removal

Tang also claimed the Board’s refusal to grant his application for withholding of removal was erroneous. Tang argued that the evidence he provided in support of his claim for asylum was sufficient to grant his withholding of removal.

The Fourth Circuit held that Tang did not meet the necessary burden to entitle him to a withholding of removal. The requisite burden of proof in a withholding of removal claim is that of a “clear probability,” which means “it is more likely than not that [Tang’s] life or freedom would be threatened in the country of removal.” The Fourth Circuit noted that this burden of proof “is more demanding than that of asylum” and that an applicant’s claim for withholding of removal would fail when their claim for asylum failed. Therefore, the Fourth Circuit held that Tang had failed to satisfy his burden or proof and was not entitled to a withholding of removal.

Protection Under CAT

Lastly, Tang appealed the Board’s denial of protection under CAT. Tang asserted that his evidence showed that the Chinese government’s torture of unregistered church members was “prolific in China.”

The Fourth Circuit refused to review this claim due to lack of jurisdiction. Under 8 U.S.C. § 1252(d)(1), courts can only review an order of removal once the “alien has exhausted all administrative remedies available to the alien as of right.” The Court held that Tang did not exhaust his administrative remedies because he failed to bring this issue on appeal before the Board.


The Fourth Circuit ultimately denied Tang’s petition for review of the Board’s decision.


By Eric Benedict

On November 25, 2015, the Fourth Circuit issued its published opinion in the immigration case Oliva v. Lynch. The appeal was taken from the Board of Immigration Appeals (“BIA”) after a one-person panel affirmed the Immigration Judge’s (“IJ”) decision to deny Oliva’s application for asylum and withholding of removal under the Immigration and Nationality Act (“INA”). On appeal, Oliva argued that the lower judicial bodies erred by (1) failing to recognize the nexus between his persecution and the proposed social group and (2) for failing to consider evidence that he was a member of a cognizable social group. A unanimous panel of the Fourth Circuit agreed and vacated in part and remanded in part.

Oliva Faces Years of Extortion and Threats for Leaving MS-13 Gang

When he was sixteen years old, Vladimir Oliva joined a gang called Mara Salvatrucha, otherwise known as MS-13 and was trained as a spy. A short time later, after witnessing the brutality of gang life, he decided to leave MS-13. However, MS-13 does not permit its members to leave the gang. A member is permitted to become “inactive” for religious or family reasons, but is required to pay “rent” to the gang. Members who attempt to leave are threatened with death. Oliva moved to a number of different cities in an attempt to evade the gang and the “rent” payments. Ultimately, Oliva spent almost a decade paying almost a third of his income to the gang. When Oliva failed to make payment in 2006, he was severely beaten and again threatened with death.

Oliva Seeks Protection on American Soil

To avoid continued persecution in his native El Salvador, Oliva entered the United States without authorization in 2007. Years later, Oliva continued to receive threatening calls from MS-13, notifying Oliva that he would be killed if he returned to his home country. In 2010, the department of Homeland Security (“DHS”) charged Oliva with removability under the INA.  The following year, Oliva filed an application for asylum and withholding of removal.

The Proceedings Below

After its initial hearing, the Immigration Court denied Oliva’s petition because it believed that MS-13 was not targeting Oliva because of his membership in the group, but rather, was targeting Oliva for money. Oliva appealed the decision and a one-member panel of the BIA dismissed the appeal. Notably, the Immigration Court also based its decision on Oliva’s failure to meet the filing deadline for asylum. However, the BIA did not address the issue, so the issue was not before the Fourth Circuit. Oliva appealed to the Fourth Circuit Court of Appeals.

The Fourth Circuit’s Deference to the BIA and the Fact Finding Standard of Review

Judge Wynn set forth a thorough discussion of the standard by which the Fourth Circuit reviews decisions of the BIA. Notably, the INA sets forth a fairly deferential standard, “[A] decision that an alien is not eligible for admission to the United States is conclusive unless manifestly contrary to law.” 8 U.S.C. § 1252(b)(4)(c). In this case, the Court was careful to point out that, “[w]hile a three-member panel of the BIA is entitled to Chevron deference … a one-member panel of the BIA-like the one in this case is entitled to the lesser Skidmore deference.” Finally, the Court noted that while the BIA’s findings of law are reviewed de novo, the BIA’s findings of fact are “conclusive unless no rational factfinder could agree with the BIA’s position.”

Oliva sought asylum under section 241 (b)(3)(A) of the INA, which provides in part that the Attorney General may not remove an alien who is otherwise removable “if the Attorney General decides that the alien’s life or freedom would be threatened in [the country of removal] because of the alien’s … membership in a particular social group…” Under this provision, the BIA dismissed Oliva’s appeal from the IJ first because it found that the alleged groups were not cognizable under the INA and second because Oliva failed to show a nexus between his membership in the group and the persecution he feared. Oliva appealed both of these findings.

Oliva Meets the INA’s Nexus Requirement

Oliva claimed that his persecution was due to his membership in a group. To satisfy the INA’s nexus requirement, an applicant must show that, “his past or threatened persecution was ‘on account of’ his membership in that group.” Importantly, membership in a particular group only has to be a central reason for the persecution, not the only reason for the persecution. The Court qualified this test by noting that membership must not be “merely ‘incidental, tangential, superficial, or subordinate to another reason for harm.’” Explaining that extortion can constitute persecution, the court reversed the BIA’s holding. Judge Wynn noted that “[b]ecause it is undisputed that MS-13 extorted Oliva on account of his leaving the gang, the record compels the conclusion that his persecution was on account of his status as a former member of MS-13.” The Fourth Circuit rejected the BIA’s contention that the gang extorted Oliva due to greed, observing that Oliva’s decision to leave the gang for religious reasons was what placed him in the category of person from which MS-13 demands “rent” payments. Despite a relatively deferential standard of review, the Court reversed the BIA, finding that Oliva satisfied the nexus requirement.

The BIA Erred in Failing to Address Oliva’s Evidence on the “Cognizable Group” Element

Oliva claimed that he was threatened because of his membership in two different groups. First, “Salvadorians who are former members of MS-13 and who left the gang, without its permission, for moral and religious reasons,” and second, “Salvadorians who were recruited to be members of MS-13 as children and who left the gang as minors, without its permission for moral and religious reasons.” A group is cognizable under the relevant portion of the INA if the group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” The BIA ended its inquiry after finding that Oliva failed the “social distinction” requirement because the group is not “perceived as a group by society”. However, the parties agreed that the BIA erred by failing to address all of the evidence put forth by Oliva as to the groups social distinction. Therefore, the government agreed that the proper course of action was for the Fourth Circuit to remand the matter to the BIA for consideration of the evidence.


Despite an elevated standard of review, the Fourth Circuit found that the BIA defined the nexus requirement too narrowly. Instead, the Court set forth the proper inquiry and found that Oliva had demonstrated that his membership in the proposed group was a central reason for his persecution. Therefore the Fourth Circuit reversed the BIA on this issue. Second, the Court, on agreement of both parties remanded the matter for consideration of the evidence as to whether or not Oliva’s proposed groups are cognizable under the INA.




By Sarah Saint

On April 30, 2015, the Fourth Circuit issued a published opinion in the civil case Hernandez-Avalos v. Lynch. Maydai Hernandez-Avalos and her son fled El Salvador after being thrice threatened by Mara 18, an aggressive gang, and entered the United States without valid entry documents. Hernandez petitioned for asylum, which the Immigration Judge denied. The Board of Immigration Appeals affirmed this decision. Hernandez-Avalos petitioned for review of a final order of removal by the Board of Immigration Appeals (BIA). The Fourth Circuit granted the petition for review, vacated the BIA’s order, and remanded the case for further proceedings.

Hernandez’s Story and Summary of Removal Proceedings

In 2007, members of the El Salvador gang Mara 18 killed the cousin of Hernandez’s husband. After the burial, armed members of Mara 18 threatened to kill Hernandez if she identified Mara 18 to the authorities as the men responsible for her cousin-in-law’s murder. A few months later members of Mara 18 put a gun to Hernandez’s head and threatened to kill her because she would not allow her son to join Mara 18. In May 2008, Mara 18 threatened to kill Hernandez a third time when she again would not allow her son to join Mara 18. Hernandez was afraid to report these incidents to the police because gang members are frequently released within days of their arrest and retaliate against complaining witness. Instead, she and her son fled El Salvador before dawn the next day.

In 2008, Hernandez and her son entered the United States without valid entry documents. She sought relief from deportation in the form of asylum and requested withholding of removal under the Immigration and Naturalization Act (INA). Hernandez thinks that if she goes back to El Salvador, members of Mara 18 would kill her. However, the Immigration Judge denied Hernandez’s petition for asylum because she had neither established that she would likely suffer future persecution on account of a protected ground nor established that she was threatened by persons the Salvadoran government was unwilling or unable to control. Hernandez appealed to the BIA, which affirmed the Immigration Judge’s decision. Hernandez then appealed to the Fourth Circuit, which vacated the BIA’s order and remanded the case for further proceedings.

Standard of Review

The BIA issued its own opinion without adopting the Immigration Judge’s reasoning. The Fourth Circuit reviewed only the BIA’s final order. Factual findings are reviewed under the substantial evidence standard: they are conclusive “unless any reasonable adjudicator would be compelled to conclude to the contrary.” Legal conclusions are reviewed de novo. The Fourth Circuit must uphold the BIA’s decision “unless it is manifestly contrary to law and an abuse of discretion.

Hernandez Established her Eligibility for Asylum

To establish eligibility for asylum under 8 U.S.C. § 1101(a)(42)(A), Hernandez must prove she (1) has a well-founded fear of persecution; (2) on account of a protected ground; (3) by an organization that the Salvadoran government is unable or unwilling to control. The Fourth Circuit found that Hernandez satisfies the first element because the threat of death meets the requirement for persecution.

The BIA incorrectly found that Hernandez did not satisfy the second element because Hernandez was persecuted because she would not allow her son to join the gang, not because she was her son’s mother. The Fourth Circuit determined this was manifestly contrary to law and an abuse of discretion because Hernandez’s relationship with her son was why she was threatened. Accordingly, the Fourth Circuit found that Hernandez satisfies the second element.

The BIA also incorrectly relied on the Immigration Judge’s conclusion that Hernandez did not satisfy the third element, that the El Salvador government could not control Mara 18. The Immigration Judge relied on its own knowledge of country conditions. The Fourth Circuit found that Hernandez’s credible testimony about the Salvadoran police being unable to protect her from Mara 18 was sufficient.

Petition for Review Granted and Case Remanded

Because Hernandez established her eligibility for asylum, the Fourth Circuit determined that Hernandez met all three elements for eligibility for asylum. Accordingly, the Fourth Circuit granted Hernandez’s petition for review and remanded the case to the BIA for further proceedings.