USCIS announced that EADs with a Category Code of A12 or C19 for 2021 TPS

October 29, 2025February 11, 2025 by Brian Lerner

EAD Extensions for 2021 TPS Holders: USCIS Provides Key Guidance

USCIS: 2021 TPS EADs with Category A12 or C19 — What It Means and How to Use Them

USCIS clarified that Employment Authorization Documents (EADs) issued under Temporary Protected Status (TPS) with category codes A12 (TPS granted) or C19 (TPS applicant with pending/initial approval) from 2021 TPS actions may remain valid through automatic extensions announced in Federal Register notices. In plain terms: even if the printed expiration date on your EAD has passed, your work authorization may still be automatically extended if you meet the notice’s conditions.

Who this applies to

Nationals (or stateless persons last habitually residing) of countries designated or redesignated for TPS in 2021 (for example, designations first opened in 2021) who:
- Properly re-registered for TPS during the window, or
- Timely filed an initial application and remain eligible.
Your current EAD shows Category A12 or C19 and matches the country covered by the auto-extension notice.

How to prove work authorization (I-9/E-Verify)

Present your TPS EAD (A12/C19) together with the relevant Federal Register notice that lists your country and new validity date.
Employers must not demand additional documents beyond I-9 rules. Record the category, document number, and the extended validity date from the notice.
When the auto-extension period ends, your employer must reverify. If you’ve filed for a new EAD, your I-797C may serve as a receipt under the rules.

You may file Form I-765 for a replacement/renewal EAD. Many TPS EADs qualify for interim automatic extensions after timely filing.

Keep TPS current

Re-register during each country’s window to preserve status and work authorization.
Track USCIS updates and Federal Register notices for your country’s next extension or redesignation.

Practical tips

Print and carry the latest USCIS TPS web page and the Federal Register notice corresponding to your country.
Update HR proactively; provide the notice pages showing A12/C19 coverage and the new validity date.
Move early on renewals to avoid lapses.

Bottom line: If your TPS EAD is coded A12 or C19, don’t assume the printed date controls—automatic extensions may keep you work-authorized when you remain TPS-eligible and follow re-registration rules.

The Fourth Circuit Court of Appeals ruled that the Board of Immigration Appeals (BIA) erred

December 2, 2025February 6, 2025 by Brian Lerner

The U.S. Court of Appeals for the Fourth Circuit recently issued a ruling, finding that the Board of Immigration Appeals (BIA) erred in its review of a petitioner’s case. The court determined the BIA had unlawfully ignored crucial evidence presented by the petitioner regarding their claim for relief. This decision vacates the BIA’s prior order and remands the case back for a new determination, stressing the importance of considering all relevant evidence in immigration proceedings

U.S. Courts of Appeals — what they are, how they work, and why they matter

The U.S. Courts of Appeals are the intermediate federal appellate courts that review decisions from U.S. district courts and certain federal agencies to determine whether the law was applied correctly; they do not retry facts.

Quick facts

There are 13 federal courts of appeals: 12 regional circuits plus the U.S. Court of Appeals for the Federal Circuit (nationwide, subject-matter jurisdiction such as patents and veterans’ claims).
Courts of appeals decide tens of thousands of cases annually and are often the final expositor of federal law in their circuits because the Supreme Court reviews only a small percentage of petitions.

What the Court of Appeals does

Reviews district-court records and legal arguments for error; issues written opinions that can bind future cases within the circuit.
Resolves legal questions and creates precedent; different circuits sometimes conflict, producing “circuit splits” that may draw Supreme Court review.

Practical points

Appeals focus on legal and procedural errors; new factual evidence is rarely allowed.
Appellate procedure has strict deadlines and formal requirements — timely, experienced counsel matters.
The Federal Circuit has nationwide jurisdiction for certain subject areas (patents, federal claims, etc.).

We prepare appellate notices, briefs, and certiorari petitions; help preserve issues at trial; and coach clients for oral argument.

USCIS announced that the initial registration period for the FY2026 H-1B

August 26, 2025February 6, 2025 by Brian Lerner

FY2026 H-1B Lottery: USCIS Opens Initial Registration Period

The USCIS announced that the initial registration period for the FY2026 H-1B cap will open at 12:00 PM (ET) on March 7, 2025, and close at 12:00 PM (ET) on March 24, 2025. During this period, petitioners must register each beneficiary electronically through a USCIS online account and pay a $215 registration fee per beneficiary.

Understanding the H-1B Cap and Electronic Registration

The H-1B visa program is an essential pathway for U.S. employers to hire foreign professionals in “specialty occupations” that require a bachelor’s degree or higher.

To streamline this process, USCIS now uses an electronic registration system. This system replaced the old process where employers had to prepare and submit full H-1B petitions before the lottery. Under the current system, employers and their legal representatives must first create an online account with USCIS and submit a simple electronic registration for each prospective employee during a specific window. This registration is a prerequisite for filing an H-1B cap-subject petition.

Key Dates and Procedures for FY2026

The FY2026 H-1B cap season follows the new, beneficiary-centric electronic registration process. Here’s a breakdown of the key dates and requirements:

The filing period for selected petitions for FY2026 will begin on April 1, 2025, and will last for at least 90 days. The earliest start date for employment under a new H-1B cap-subject visa is October 1, 2025, the start of the fiscal year.

Registration Period: The window for electronic registration is from March 7, 2025, to March 24, 2025. It is not necessary to register on the first day, as the lottery is random and does not depend on the time of submission.

Beneficiary Information: For each registration, petitioners must provide basic information about the company and the beneficiary, including a valid passport or travel document number. . USCIS will invalidate all registrations for a beneficiary if a single employer submits more than one entry on their behalf. However, it is permissible for multiple employers to register the same beneficiary.

Selection and Notification: After the registration period closes, USCIS will conduct a lottery to select the registrations. The agency intends to notify prospective petitioners and their representatives of the selection results by March 31, 2025.

Eighth Circuit Finds that MN Third Degree Criminal Sexual Conduct does not Match Federal Definition of Rape

November 27, 2025January 27, 2025 by Brian Lerner

The Eighth Circuit has determined that Minnesota’s crime of third-degree criminal sexual conduct does not match the generic definition of rape. This is because the Minnesota crime includes digital or mechanical penetration. These are outside the generic definition of rape, highlighting some aspects of Third Degree Criminal Sexual Conduct.

Eighth Circuit Narrows ‘Rape’ Definition in Immigration Law

In a significant victory for non-citizens with prior criminal convictions, the Eighth Circuit Court of Appeals recently ruled. They determined that the offense of Minnesota Third-Degree Criminal Sexual Conduct (CSC) does not categorically meet the federal immigration definition of “rape” under the Immigration and Nationality Act (INA). The nature of Third Degree Criminal Sexual Conduct becomes crucial in such analyses.

The federal definition of an aggravated felony—which triggers mandatory deportation or removal—includes the crime of “rape.” However, federal law does not explicitly define rape within the INA. Consequently, courts must apply a categorical approach. They compare the state statute of conviction (the Minnesota CSC law) against the generic, ordinary definition of rape.

The court found the Minnesota statute, specifically $\S$ 609.344, Subd. 1, to be overbroad. Crucially, the Minnesota law criminalizes a wider range of acts, including digital or mechanical penetration. The Eighth Circuit determined this falls outside the narrow, historical, and generic definition of federal “rape.” The generic definition, rooted in common law, is limited primarily to sexual intercourse (vaginal, anal, or oral penetration). This differs significantly from Third Degree Criminal Sexual Conduct nuances.

Impact of the Ruling

This ruling prevents the government from automatically using a Minnesota Third-Degree CSC conviction as an aggravated felony ground for removal based on the “rape” offense category. For individuals whose removal proceedings relied solely on this classification, the decision is a critical step toward relief. It potentially allows them to pursue defenses such as cancellation of removal or asylum/withholding of removal. These were previously barred in cases involving Third Degree Criminal Sexual Conduct.

The case underscores the ongoing complexity of crimmigration law. Minor variations between state criminal statutes and generic federal definitions can have life-altering consequences for immigrants and lawful permanent residents. This decision sets binding precedent only within the Eighth Circuit, including states like Minnesota, Iowa, Nebraska, and the Dakotas. However, the ruling provides a powerful legal framework for other jurisdictions facing similar categorical challenges. It particularly touches on key aspects related to Third Degree Criminal Sexual Conduct.

BIA Clarifies Standard for Determining Money Laundering as an Aggravated Felony

August 26, 2025January 26, 2025 by Brian Lerner

Money Laundering Offense Reviewed Using Circumstance-Specific Approach by BIA

The Board of Immigration Appeals has determined that for the purpose of assessing whether an offense constitutes a money laundering aggravated felony, the circumstance-specific approach applies to the requirement that the “amount of the funds exceeded $10,000.” The full text of Matter of Domingu

SCOTUS Determines that Revocation of Visa Petition Approvals are not Challengeable in Federal Court

September 7, 2025January 23, 2025 by Brian Lerner

Supreme Court Bars Federal Court Review of Visa Petition Revocations

In a significant ruling, the Supreme Court has unanimously held that federal courts lack jurisdiction to review the Department of Homeland Security’s (DHS) decision to revoke a previously approved visa petition. This landmark decision, detailed in the case of Bouarfa v. Mayorkas, confirms a broad expansion of the executive branch’s discretionary authority over immigration enforcement. Furthermore, it severely limits judicial oversight in these cases.

The Legal Basis of the Decision

The Court’s decision centered on the interpretation of two key statutes within the Immigration and Nationality Act (INA):

INA § 205 (8 U.S.C. § 1155): This statute states that the Secretary of Homeland Security “may, at any time, for what he deems to be good and sufficient cause,” revoke the approval of a family-based or employment-based immigrant visa petition.

The Supreme Court, in an opinion authored by Justice Ketanji Brown Jackson, concluded that the language of INA § 205—particularly the word “may” and the phrase “for what he deems to be good and sufficient cause”—clearly indicates that Congress intended for visa revocations to be a purely discretionary action. Because the decision is discretionary, it falls under the jurisdiction-stripping provision of INA § 242. This effectively precludes federal court review.

Implications and Concerns

This ruling resolves a split among federal appeals courts and has far-reaching implications for the U.S. immigration system. For individuals and families who have already had a visa petition approved, this decision removes a key legal recourse. If DHS decides to revoke an approved petition, the beneficiary and the petitioner have no ability to challenge that decision in federal court. This applies even if they believe the agency’s reasoning is flawed or based on a misinterpretation of the facts.

Immigration advocates have raised serious concerns that this decision could pave the way for a more aggressive and potentially arbitrary use of visa revocations under the current administration. While the Court noted that a petitioner could still file a new visa petition to challenge the underlying reason for the revocation (such as a finding of a “sham marriage”), critics argue that this provides limited practical relief. They emphasize that the process can take years and there is no guarantee of success.

The decision also highlights a key distinction in immigration law between mandatory and discretionary agency decisions. This gives the executive branch significant latitude to implement broader immigration policies through visa revocations, with minimal judicial oversight.

First Circuit Addresses Agency’s Settled Course of Granting Unopposed Motions to Remand for Adjustment

August 27, 2025January 22, 2025 by Brian Lerner

Court Reviews Agency’s Settled Course on Remanding for Adjustment of Status

The BIA improperly denied Badose’s unopposed motion to remand for two main reasons. First, the court found the BIA arbitrarily deviated from a “settled course of adjudication”. The First Circuit noted that for approximately fifteen years, the BIA had routinely granted similar unopposed motions to remand so that non-citizens in removal proceedings could pursue an adjustment of status.

The second error was that the BIA improperly engaged in factfinding in violation of 8 C.F.R. § 1003.1(d)(3). The BIA stated that Badose’s marriage occurred after the denial of his claims by the Immigration Judge, and that he “was aware that his status was in jeopardy”. The court interpreted this statement as an “insinuation… of an improper motive for the marriage,” which constituted a factual determination on the legitimacy of Badose’s marriage.

The court emphasized that the BIA’s denial of the remand motion was a “material error of law”. Because of these errors, the First Circuit granted Badose’s petition for review, vacated the BIA’s decision, and remanded the case back to the BIA. Badose, a national of the Democratic Republic of the Congo, had initially entered the U.S. in 2014 on a student visa and later sought asylum, withholding of removal, and protection under the Convention Against Torture. The Immigration Judge had previously denied his claims based on an adverse credibility determination, finding inconsistencies in his testimony. This approval made him prima facie eligible for an adjustment of status, prompting his motion to remand.

First Circuit Finds no Jurisdiction to Review NIW Revocation

March 15, 2026January 21, 2025 by Brian Lerner

The U.S. Court of Appeals for the First Circuit has ruled that federal courts lack jurisdiction to review the revocation of an approved National Interest Waiver (NIW) and the underlying Form I-140 immigrant petition. However, the decision, issued in Guedes v. Mayorkas, also highlights the broad discretionary authority granted to U.S. Citizenship and Immigration Services (USCIS) under the Immigration and Nationality Act (INA).

Background of the Case

The case involved Viana Guedes, a Brazilian physician who entered the United States with her family and later sought lawful permanent residence through the employment-based immigration system. Guedes filed a Form I-140 immigrant petition under the EB-2 category and requested a National Interest Waiver, which allows certain professionals to obtain a green card without a job offer if their work benefits the United States.

USCIS initially approved the I-140 petition and the NIW. Guedes and her family then applied for adjustment of status to become lawful permanent residents. However, USCIS later revoked the approval and denied the family’s adjustment of status applications. The family filed a lawsuit in federal district court challenging the agency’s actions and arguing that the revocation was unlawful.

The District Court Decision

The U.S. District Court dismissed the lawsuit for lack of subject-matter jurisdiction. The court concluded that federal law limits judicial review of certain immigration decisions, particularly those that are committed to the discretion of immigration authorities.

The plaintiffs appealed the dismissal to the First Circuit Court of Appeals, arguing that the revocation of the NIW and I-140 petition should be subject to judicial review.

The First Circuit’s Ruling

The First Circuit affirmed the district court’s decision. The court held that the Immigration and Nationality Act bars federal courts from reviewing certain discretionary immigration decisions made by the executive branch.

Specifically, the court relied on 8 U.S.C. §1252(a)(2)(B), which states that courts do not have jurisdiction to review decisions that Congress has committed to agency discretion. The statute applies to immigration decisions made by the Secretary of Homeland Security or the Attorney General when the law grants them discretionary authority.

The court determined that the revocation of an approved visa petition under INA §1155 and the revocation of a National Interest Waiver are discretionary decisions. Because these actions fall within the discretion of immigration authorities, federal courts generally cannot review the merits of those decisions.

Relationship to Supreme Court Precedent

The First Circuit’s analysis also reflects recent Supreme Court precedent emphasizing the limited scope of judicial review in immigration matters. Courts have increasingly interpreted the INA as giving immigration authorities significant discretion in adjudicating visa petitions and related benefits.

Under these interpretations, courts generally cannot review discretionary immigration decisions unless Congress has clearly authorized such review.

Implications for EB-2 National Interest Waiver Applicants

The ruling underscores that approval of an immigrant visa petition—including an EB-2 National Interest Waiver—does not permanently guarantee immigration benefits. USCIS retains authority to revisit previously approved petitions and revoke them if it determines that the approval was granted in error or if “good and sufficient cause” exists.

If USCIS revokes an approved petition, the ability to challenge the decision in federal court may be limited. In many situations, the primary options available to petitioners involve administrative remedies within the agency, such as filing a motion to reopen or reconsider.

Conclusion

The First Circuit’s decision in Guedes v. Mayorkas reinforces the broad discretionary authority granted to immigration agencies under federal law. Because revocation of an NIW and I-140 petition is considered a discretionary decision, federal courts generally lack jurisdiction to review such actions. For applicants pursuing employment-based immigration benefits, the case highlights the importance of presenting strong and well-documented evidence throughout the immigration process.

Ninth Circuit Finds that Washington Conviction for Possession of a Stolen Vehicle is an Aggravated Felony

December 28, 2025January 20, 2025 by Brian Lerner

In the case of Vitaliy Chmukh v. Garland, the Ninth Circuit Court of Appeals has determined that a Washington conviction for possession of a stolen vehicle qualifies as an aggravated felony. This holds true if it is accompanied by a sentence of at least one year of imprisonment. The court also held that this conviction was a “particularly serious crime.” Therefore, it made the petitioner, Vitaliy Chmukh, ineligible for asylum and withholding of removal. The court’s decision affirms the prior rulings of the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA).

Aggravated Felony — advanced issues, defenses, and practical litigation steps (Part 3)

This page continues our practical series on aggravated felonies by focusing on advanced analytical issues practitioners face: post-conviction relief and its immigration effect, how later sentence modifications interact with the categorical approach, strategies for preserving appellate issues, and narrow relief options that sometimes remain available even after an aggravated-felony characterization.

Advanced screening points

Record-of-conviction specifics: obtain minute orders, plea colloquies, indictments, and sentencing records—small differences can decide the categorical analysis.
Sentence imposed vs. suspended time: confirm the actual sentence executed at entry and any later changes that might affect the one-year threshold.
Post-conviction relief: assess whether vacaturs, resentencing, or expungements change the immigration record under controlling circuit precedent.

Defense & litigation strategies

Obtain certified conviction records immediately and preserve the record.
Apply the modified categorical inquiry only to Shepard-authorized documents when a statute is divisible.
Coordinate plea strategy with criminal counsel to seek non-immigration-triggering dispositions.
Preserve appellate issues through motions to vacate or appeals; raise categorical challenges before the BIA and on federal review.

Narrow remedies to consider

Plea withdrawal or vacatur for ineffective assistance or coercion.
Resentencing or other post-conviction orders that alter the sentence length.
Equitable arguments in discretionary relief and clemency avenues where appropriate.

We provide conviction audits, plea-strategy memos, post-conviction motions, BIA briefs, and federal petitions for review.

Ninth Circuit Addresses BIA’s Reliance on Prior Adverse Credibility Determination to Deny motion to reopen

August 4, 2025January 16, 2025 by Brian Lerner

Court Analyzes BIA’s Basis for Denying Motion to Reopen on Credibility Grounds

The Ninth Circuit has clarified when the Board of Immigration Appeals
may consider a prior adverse credibility determination in its assessment of a motion to reopen.
“In the Ninth Circuit, we recognize that immigration judges (‘IJs’)
—but not the Board of Immigration Appeals (‘BIA’)
—have the prerogative to answer that question by using the maxim falsus in uno,
falsus in omnibus (‘false in one thing, false in everything’).
Here, however, the BIA used that prerogative to discredit petitioner Ranjit Singh’s affidavit in support of his motion to reopen
because Singh had been found not credible by an IJ in his prior removal proceedings,
but as to facts quite unlike those he asserted in his motion to reopen.
We hold that such blanket reliance on a prior adverse credibility determination
that was based on dissimilar facts contravenes the law of the Ninth Circuit.”

“To synthesize our precedents, an item of evidence already found
not credible at an alien’s removal proceedings remains presumptively not credible
at the motion-to-reopen stage,
Likewise, an item of fact unproven at the alien’s removal proceedings remains unproven—and the BIA is free to disregard it
—unless the alien effectively corroborates it with new evidence submitted in support of his motion to reopen.
the BIA should first ascertain the scope of that adverse credibility finding.
at the motion-to-reopen stage, then the BIA is free to discredit them,
not through the application of the falsus maxim, but because it would defy common sense to require the BIA to accept previously rejected facts when proffered anew based solely on the discredited words of the same witness.”
the BIA must accept it as true unless it is inherently unbelievable.
The full text of Singh v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/24/23-2065.pdf

Ninth Circuit Finds Jurisdiction to Review Extraordinary Circumstances for VAWA Motion to Reopen

October 21, 2025January 15, 2025 by Brian Lerner

VAWA Motions to Reopen: Ninth Circuit Affirms Jurisdiction to Review Extraordinary Circumstances

Ninth Circuit Finds Jurisdiction to Review “Extraordinary Circumstances” for VAWA Motions to Reopen — Why It Matters

The U.S. Court of Appeals for the Ninth Circuit held that it has jurisdiction to review the Board of Immigration Appeals’ decision on whether a VAWA applicant showed “extraordinary circumstances” to excuse the one-year filing deadline for a special VAWA motion to reopen. Although the court ultimately denied the petitioner’s case on the facts, the ruling is a significant win on reviewability.

What the court said

Determining whether facts meet the extraordinary-circumstances standard is a mixed question of law and fact, and therefore a “question of law” that courts may review under 8 U.S.C. § 1252(a)(2)(D), consistent with the Supreme Court’s analysis in Wilkinson and Guerrero-Lasprilla. The government’s argument that this determination was unreviewable “discretion” was rejected.
The court emphasized the VAWA statute: 8 U.S.C. § 1229a(c)(7)(C)(iv)(III) allows the Attorney General to waive the one-year limit for a VAWA motion to reopen upon a showing of extraordinary circumstances (or extreme hardship to a child).

Context and developing law

Other circuits disagree about reviewability. The Ninth Circuit aligned with the Fifth Circuit (jurisdiction exists) and diverged from others finding no jurisdiction—so forum matters.
The BIA recently reiterated the statutory framework, noting it may waive the one-year limit in VAWA cases upon a showing of extraordinary circumstances or extreme hardship to a child—and that the decision remains discretionary.

What this means for you (Ninth Circuit states)

If your VAWA-based motion to reopen was denied as untimely because the BIA said you lacked “extraordinary circumstances,” you may now seek federal court review of that legal determination (Arizona, California, Nevada, Oregon, Washington, Idaho, Montana, Alaska, Hawaii, Guam, NMI). The court can send the case back if the BIA misapplied the standard—even though the ultimate grant of reopening remains discretionary.

Practical steps

Preserve the issue: clearly argue “extraordinary circumstances” in your motion/appeal.
Document causation: show how abuse, trauma, hospitalization, threats, or other factors caused the filing delay; include expert declarations and timelines.
Don’t forget alternatives: plead extreme hardship to a child where supported.
Mind deadlines: file a timely petition for review from the BIA’s decision.

We can audit your record, frame the extraordinary-circumstances theory, and brief the case for remand-worthy federal review.

Federal Criminal Defense & Sentencing — Next Steps

February 15, 2026January 14, 2025 by Brian Lerner

Federal criminal defense matters move through defined stages, and therefore early strategic choices frequently shape both case resolution and sentencing exposure; read on for a practical roadmap, intake checklist, and immediate steps counsel should take in the first 72 hours.

Federal criminal matters proceed through distinct stages, and consequently early choices usually determine both whether a case resolves by plea or goes to trial and what sentencing exposure a defendant faces. First, an investigation often begins with subpoenas, search warrants, and witness interviews; next, prosecutors may file a complaint, an information, or pursue a grand-jury indictment.

By Brian D. Lerner — A practical roadmap of federal case stages, sentencing mechanics, and immediate intake priorities. This content is informational and not individualized legal advice.

How to act in the first 72 hours — immediate priorities

Immediately upon contact, counsel should do the following: first, secure all charging documents and ask for the full arrest or investigative file; second, preserve digital evidence and request preservation letters where appropriate; third, identify potential witnesses and secure written statements or contact info; fourth, calendar deadlines and any court dates; and fifth, assess bail/detention issues and move promptly to contest detention if indicated. Meanwhile, document any interactions with law enforcement, and moreover, avoid making statements until counsel is present.

Federal case stages — quick reference

Stage	What happens	Defense focus
Investigation	Agency inquiries: searches, subpoenas, interviews.	Preserve evidence; issue preservation letters; advise client to invoke counsel.
Charging	Complaint, information, or grand-jury indictment filed.	Obtain charging papers; evaluate probable cause and early defenses.
Initial appearance / Arraignment	Plea entered; bail/detention addressed.	Request counsel, contest detention, and enter a prudent plea (often “not guilty”).
Discovery & Pretrial Motions	Evidence exchange; suppression/Brady disputes.	File discovery motions, Brady/Giglio demands, and suppression motions promptly.
Plea Negotiation or Trial	Case resolves by plea or proceeds to trial.	Negotiate stipulated guideline calculations or prepare trial strategy and witnesses.
Sentencing	PSR prepared; Guidelines calc + §3553(a) factors considered.	Submit PSR objections, mitigation, victim-impact strategy, and request downward variance when appropriate.
Appeal / Post-conviction	Legal review of errors; collateral relief where applicable.	Preserve issues on the record; evaluate direct appeal and habeas options early.

Defense intake & evidence checklist

Client identifiers: legal name, DOB, aliases, booking number, and contact for family/POA.
All charging documents and arrest affidavits; request the full investigative file immediately.
Preserve digital evidence: device IDs, cloud account names, metadata preservation instructions, and preservation letters.
Request all discovery: reports, interviews, recordings, surveillance video, forensic reports, and grand-jury materials where available.
Collect mitigation materials quickly: employment records, school transcripts, medical/mental-health records, and family affidavits.
List witnesses and obtain sworn statements; note interpreter needs and accessibility requirements.
Record timeline of events and calendar deadlines for motions, plea cutoffs, sentencing submissions, and appeal windows.

Example (anonymized) — how early motions can reshape a case

For example, in one typical matter, counsel filed a prompt suppression motion after identifying an improper search; subsequently, the court suppressed key evidence and, therefore, the government substantially reduced charges in a negotiated plea. As a result, the client’s guideline exposure dropped by multiple offense levels. Thus, early evidence review and swift paperwork materially changed the outcome in that case.

Frequently asked questions

How often do federal cases go to trial?

Most federal cases resolve through plea agreements; however, trials still occur when factual disputes or legal issues are strong and plea offers are inadequate.

What determines a federal sentence?

Sentencing begins with the U.S. Sentencing Guidelines but judges must also consider §3553(a) factors; therefore, guideline calculations plus mitigation evidence influence the final sentence.

Can accepting responsibility reduce my sentence?

Yes. Acceptance of responsibility typically lowers offense levels under the Guidelines; consequently, plea agreements often seek this credit to reduce exposure.

What should I bring to my first meeting with counsel?

Bring charging documents, police reports, witness contact information, device/account details, and any mitigation records (employment, school, medical). Full candor helps counsel evaluate defenses.

Seventh Circuit Construes Exceptional and Extremely Unusual Hardship

August 27, 2025January 13, 2025 by Brian Lerner

Seventh Circuit Analyzes Exceptional Hardship Criteria in Immigration Cases

The Sixth Circuit, not the Seventh, made a key determination in the case

Moctezuma-Reyes v. Garland. The court found that the agency’s definition of “exceptional and extremely unusual hardship” is not binding. The statute doesn’t explicitly grant the Attorney General or the agency the discretion to define the term, unlike a previous version of the law.

The Court’s Reasoning on Deference

The court held that a statute must expressly give an agency discretion for its interpretations to be granted deference. The court noted that a prior version of the law had language such as “in the opinion of the Attorney General,” which clearly delegated such discretion. However, the current statute on cancellation of removal lacks this language. It simply requires a showing of “exceptional and extremely unusual hardship” to a qualifying relative. The court concluded that Congress did not give the agency the authority to define the term, so its definition isn’t entitled to deference.

The Court’s Construction of the Term

The Sixth Circuit now interprets “exceptional and extremely unusual hardship” as hardship that is “significantly different from or greater than the hardship that a deported alien’s family normally experiences”. This standard applies to hardship for a qualifying relative, like a U.S. citizen spouse, parent, or child. This decision creates a clear legal standard against which the agency’s hardship determinations can be reviewed by a court.

Case Background

The case involved Pedro Moctezuma-Reyes, a Mexican citizen who lived in the U.S. since 1993. He had four U.S. citizen children. He applied for cancellation of removal, arguing that his deportation would cause exceptional hardship to his children, particularly due to one son’s mental health issues and another’s speech impediment. The BIA denied his application, saying the hardship did not meet the “exceptional and extremely unusual” level. The court’s decision vacates and remands the BIA’s ruling. It directs the agency to re-evaluate the claim under this new legal standard.

Fifth Circuit Finds Affidavit Alone Insufficient to Establish Lack of Notice

August 27, 2025January 12, 2025 by Brian Lerner

Affidavit Alone Does Not Prove Lack of Notice, Says Fifth Circuit

The Fifth Circuit has determined that a non-citizen’s declaration alone is not sufficient to compel the agency to reopen a removal order. This is based on the lack of receipt of the notice of hearing. The court’s decision in Luna v. Garland upheld the Board of Immigration Appeals’ (BIA) denial of a motion to reopen. It found that the BIA did not abuse its discretion in its ruling.

Factual Background

The case involved Dagoberto Luna, a native and citizen of Mexico who entered the United States in 1997 without valid documents. In 2003, the government mailed him a Notice to Appear (NTA) to an address he had provided. The government later mailed a Notice of Hearing (NOH) to the same address.

Luna later filed a motion to reopen his proceedings, arguing that his NTA was defective because it lacked the hearing time and place. He also claimed that he had not received the NTA or the NOH. He submitted an affidavit to support his claim that he did not receive the notices. The Immigration Judge (IJ) and the BIA denied his motion.

Legal Reasoning

The Fifth Circuit reviewed the BIA’s decision for an abuse of discretion. The court found that Luna’s NTA was indeed defective for not including the time and place of the hearing. This was done by citing the Supreme Court’s decisions in Niz-Chavez v. Garland and Campos-Chaves v. Garland. However, the court explained that this defect alone does not automatically entitle a non-citizen to rescind an in absentia removal order. This is true if they received a subsequent notice with the hearing details. The government had provided a subsequent notice (the NOH) to Luna, which cured the defect in the original NTA.

The central issue then became whether Luna had rebutted the presumption of receipt for the NOH. The BIA determined that Luna’s affidavit alone was not sufficient to overcome this presumption. The court found that the BIA’s conclusion was not an abuse of discretion.

Fifth Circuit Applies no Deference to BIA’s Hardship Determination

January 6, 2026January 9, 2025 by Brian Lerner

The Fifth Circuit has affirmed the agency’s hardship finding in a cancellation of removal case. Discussing the complexities of Cancellation Of Removal / by Attorney Brian D. Lerner, the court found that the applicant, Carlos Pineda, had not established that his U.S. citizen son would suffer “exceptional and extremely unusual hardship”. The Fifth Circuit hardship determination review highlights the intricate nature of these legal decisions. In the case of

Pineda v. Garland, the court denied the petition for review and upheld the Board of Immigration Appeals’ (BIA) decision.

The petitioner, Carlos Pineda, is a citizen of Honduras who entered the U.S. in 2003.

Factual Background

Pineda argued that his deportation would negatively impact his son’s medical treatment and education. He contended that he was the son’s primary caregiver. Pineda also argued that his son would be forced to live in poverty and face threats of gang violence in Honduras. An Immigration Judge (IJ) denied his application. The IJ found that while the son would experience hardship, it was not at the required statutory level. The BIA affirmed the IJ’s decision, which led to Pineda’s appeal to the Fifth Circuit.

The Court’s Reasoning on Hardship

The Fifth Circuit reviewed the case. It assumed for the sake of argument that the hardship finding was a question of law. This would make it subject to de novo review, a less deferential standard. Even under this standard, the court concluded that the BIA did not err. The court found that the hardship to Pineda’s son, while significant, was not “exceptional and extremely unusual”. The court noted that the hardship would be similar to what many children of deported parents face. This includes a likely decline in the family’s financial situation. It also includes having to adapt to a new country and language. The court also found no evidence that his son’s medical or educational needs could not be met in Honduras. Thus, the court affirmed the BIA’s conclusion that Pineda had not met the statutory requirements for Cancellation of Removal.

Fifth Circuit hardship determination review

No deference to BIA on “exceptional and extremely unusual hardship” — what changed and why it matters

The Fifth Circuit recently clarified that when an appeal raises the question whether an established set of facts meets the legal standard of “exceptional and extremely unusual hardship” for cancellation of removal, courts may review that legal question rather than simply deferring to the BIA/IJ. This follows and applies the Supreme Court’s teaching in Wilkinson v. Garland.

Key holding

The court distinguished between (1) subsidiary factual findings about what happened (largely unreviewable), and (2) the legal question whether those facts satisfy the statutory hardship standard. On that mixed question of law and fact, the Fifth Circuit will not automatically defer to the Board’s legal judgment.

Practical effect for cancellation cases

Keep a meticulous record at the IJ level — medical, educational, and financial evidence must be explicit and linked to legal elements.
Frame appellate briefing to isolate legal questions (does the record, as established, meet the statutory standard?), since that is the reviewable issue post-Wilkinson.
Consider appellate review where the BIA’s opinion demonstrates a legal misapplication of the hardship standard, not merely a credibility call.

Evidence checklist

Medical declarations & records; physician treatment plans.
Financial exhibits and household budgeting showing substantial loss of support.
School records, IEPs, and expert education affidavits.
Country-condition or country-specific expert testimony where relevant.