I-131 Reentry Permit Filings: How to Avoid Rejection with the New Form
A reentry permit lets a lawful permanent resident (LPR) reenter the U.S. after extended travel (generally up to 2 years) without being treated as having abandoned residence. With the updated Form I-131, avoid rejections by following this tight checklist:
1) Use the correct, current edition
Download Form I-131 directly from USCIS right before you file.
Verify the Edition Date at the bottom of every page matches the date listed on the USCIS form page. Don’t mix editions.
2) Select the right benefit
Check “Reentry Permit” (not Advance Parole or Refugee Travel Document).
Provide your A-Number, USCIS online account (if any), and prior reentry permit number (if applicable).
3) File from inside the U.S.
You must be physically present in the United States when USCIS receives the I-131.
Plan for biometrics in the U.S. at an ASC; overseas biometrics generally aren’t available. If you must travel soon, consider requesting an expedite with evidence.
4) Fees done right
Use the USCIS Fee Calculator for the new form/fees.
Pay the exact amount and method the form page specifies. (Fee waivers typically not available for reentry permits.)
5) Decision-ready packet
Include a copy of your green card (front/back) or other proof of LPR status.
Add a valid passport ID page copy and any prior permit.
Answer travel history and intended-travel questions completely and consistently.
If using paper, sign in ink; reproduced wet signatures are acceptable unless the instructions say otherwise.
Add Form G-1145 for e-notification of receipt.
6) Filing location & delivery
Use the current direct filing address for reentry permits. Courier with tracking; keep proof of delivery.
7) After filing
Don’t miss ASC biometrics; bring ID.
If traveling after filing, keep your I-797C receipt, and arrange for reentry permit delivery (lockbox won’t ship overseas—use a trusted U.S. address or request consular pickup per instructions).
Practical tips Stay under extended absences when possible, keep U.S. ties (home, taxes, job), and consider a reentry permit renewal if travel will continue. A clean, current-edition I-131 with exact fees, U.S. presence at filing, and timely biometrics prevents most rejections.
Impact of Pardons on Visa Ineligibility Clarified in New DOS Rule
What changed about pardons and visa ineligibility?
The U.S. State Department updated its regulations to clarify how pardons affect criminal-related visa ineligibilities. In short, a state pardon or expungement does not remove a visa ineligibility based on certain convictions. A full and unconditional presidential pardon may affect limited grounds, but this is rare. Therefore, most applicants must rely on statutory waivers (such as INA §212(h)) rather than pardons when seeking a visa.
What this means in practice
Inadmissibility (visas): Consular officers generally cannot treat a state pardon, expungement, or “legislative pardon” as erasing ineligibility under INA §212(a)(2)(A) (CIMT) or §212(a)(2)(B) (multiple convictions). Presidential pardons are the exception noted in the rule.
Deportability (inside the U.S.): For people already admitted, a full and unconditional state or presidential pardon can eliminate some criminal deportability grounds under INA §237(a)(2)(A)(vi); however, it does not fix inadmissibility for future visas.
Your options if you have a past conviction
212(h) waiver (for certain crimes): Many applicants pursue a §212(h) waiver rather than relying on a pardon. Eligibility turns on the type of offense, hardship to qualifying relatives, and other factors. We evaluate whether §212(h) or another path fits your case.
Other strategies: Sentencing/“petty offense” exceptions, youth-offense exceptions, and careful CIMT analysis may avoid a finding of inadmissibility altogether. We analyze your statute and records line by line.
Evidence checklist for a visa case with criminal history
Certified docket, complaint, judgment, and sentence
Proof of rehabilitation (programs, treatment, employment, community service)
Family hardship documentation for any waiver request
If applicable, any pardon documentation (we will explain its limited effect at the visa stage)
As a result, your file presents a complete, accurate picture.
FAQs
Does a state pardon fix my visa inadmissibility? No. State pardons and expungements generally do not remove visa ineligibility under §212(a)(2)(A) or (B).
Do presidential pardons help? Possibly, for certain §212(a)(2)(A) or (B) ineligibilities—but presidential pardons are rare and the rule’s text is narrow. Most applicants still need a statutory waiver.
If I’m already a permanent resident, can a pardon stop deportation? Sometimes. A full and unconditional pardon can eliminate certain deportability grounds under §237(a)(2)(A)(vi), which is different from consular inadmissibility.
How we help
First, we identify whether your issue is inadmissibility (visa) or deportability (inside the U.S.). Next, we analyze the conviction and exceptions, and assess §212(h) or other waivers. Then, we prepare a thorough brief and evidence packet. Finally, we track deadlines and respond to any requests for evidence.
Disclaimer: General information only. Policies and FAM guidance change; we confirm the current rule for your case at the time of filing.
The Department of State (DOS) published a final rule amending 22 CFR Part 40 regarding the effect of certain pardons on criminal-related grounds of visa ineligibility. This final rule, effective August 22, reflects the DOS’s agreement with the Seventh Circuit Court of Appeals in its recent opinion in Wojciechowicz v. Garland. The DOS finds that the court’s analysis regarding the lack of underlying authority in the Immigration and Nationality Act (INA) giving effect to such pardons extends to the Department’s own regulation at 22 CFR 40.22(c) regarding ineligibility for multiple criminal convictions.
The Rule’s Background and Rationale
For decades, the DOS’s regulations at 22 CFR 40.21(a)(5) and 40.22(c) have provided that a full and unconditional pardon from a U.S. state governor could remove a ground of visa ineligibility related to convictions for a single crime involving moral turpitude or for multiple criminal convictions. However, the Seventh Circuit’s decision in Wojciechowicz directly challenged this long-standing policy. In that case, the court determined that the INA, as amended by Congress, does not contain a statutory provision that gives effect to a gubernatorial pardon for inadmissibility under INA § 212(a)(2)(A)(i) or INA § 212(a)(2)(B). The court ruled that an agency regulation cannot override a clear statutory text.
The new final rule from the DOS agrees with this legal reasoning. The DOS is amending its regulations to align with the court’s finding that Congress did not provide a statutory exception for state pardons for certain criminal-related inadmissibility grounds. As a result, the Department is now explicitly stating that a state-level pardon does not remove visa ineligibility for these specific criminal convictions.
Implications for Visa Applicants
The most significant change is the explicit distinction the rule makes between state pardons and presidential pardons. The INA provides a statutory exception for presidential pardons, but not for pardons granted by a state governor. The final rule removes the language that previously gave effect to gubernatorial pardons for inadmissibility under INA sections 212(a)(2)(A)(i) and 212(a)(2)(B), while retaining the provision for presidential pardons.
This means that a visa applicant who has been convicted of a crime involving moral turpitude or multiple criminal convictions that would otherwise make them inadmissible will not have that inadmissibility waived simply by obtaining a pardon from a state governor. The rule implements the Seventh Circuit’s interpretation, making it the official policy of the Department of State and resolving the conflict between the agency’s regulations and the INA’s statutory text.
OIG Report Reveals ICE’s Monitoring Gaps for Released Unaccompanied Migrant Children
DHS’s Office of the Inspector General (OIG) found that U.S. Immigration and Customs Enforcement (The Office of the Inspector General (OIG) for the Department of Homeland Security (DHS) found that U.S. Immigration and Customs Enforcement (ICE) can’t fully monitor unaccompanied migrant children (UACs) after DHS and HHS release them. The audit, titled “ICE Cannot Effectively Monitor the Location and Status of All Unaccompanied Alien Children After Federal Custody,” found problems with tracking UACs and coordinating with the Department of Health and Human Services (HHS). The report gives specific recommendations to improve systems and processes, and it includes ICE’s responses.
Key Audit Findings
The OIG’s final report, dated March 25, 2025, determined that ICE can’t effectively monitor the location and status of all UACs once agencies release them from federal custody. From fiscal years 2019 to 2023, ICE transferred over 448,000 UACs to HHS within the Department of Homeland Security. Most of these children were later released to sponsors. However, the audit found major gaps in the tracking process:
More than 31,000 children had blank, undeliverable, or missing apartment numbers in their release addresses.
As of January 2025, ICE had not served Notices to Appear (NTAs) on more than 233,000 UACs, which means they had not been placed in removal proceedings.
As of October 2024, over 43,000 UACs who received NTAs didn’t show up for their scheduled court dates.
The OIG found that ICE often did not know the location of UACs who fled HHS custody. It also did not consistently receive notification of a child’s status unless someone reported abuse or a tip. The OIG’s report says that without the ability to monitor these children, ICE cannot ensure they are safe from exploitation or trafficking. This is a significant concern for the Department of Homeland Security.
Reasons for the Deficiencies and Agency Response
The audit identified multiple reasons for ICE’s tracking problems. A main reason was the lack of an accurate or automated system for sharing information between agencies. The report revealed that ICE field offices used “manual workarounds” such as spreadsheets and emails to track UACs. The OIG also noted a 2021 agreement between DHS and HHS had removed rules for sponsor vetting and information sharing, impacting the Department of Homeland Security’s effectiveness.
The OIG’s report included four recommendations to improve ICE’s monitoring. In a formal response, ICE agreed with all four. The agency said it has been taking steps to automate information sharing for children’s court attendance. It plans to continue improving these processes and to implement the OIG’s recommendations. The OIG’s findings expose significant vulnerabilities in the current system, underscoring the urgency of the matter and the risks a vulnerable population faces after release from federal custody, highlighting challenges for the Department of Homeland Security.
USCIS has introduced a new process for certain noncitizen spouses and stepchildren of U.S. citizens to request parole in place (PIP) under the “Keeping Families Together” initiative. This new process requires applicants to file Form I-131F, Application for Parole in Place for Certain Noncitizen Spouses USCIS created Form I-131F for noncitizen spouses and stepchildren of U.S. citizens to apply for parole in place (PIP). This form is part of the “Keeping Families Together” initiative. Applicants must file the form online through a MyUSCIS account. Paper applications will be rejected.
Eligibility
To qualify for this new process, applicants must meet several key criteria. They must be the noncitizen spouse or stepchild of a U.S. citizen. The marriage must have been legal on or before June 17, 2024. For stepchildren, the noncitizen parent must have married the U.S. citizen before the stepchild’s 18th birthday and on or before June 17, 2024.
Applicants must be physically in the United States without having been formally admitted or paroled. Spouses must have been continuously present since at least June 17, 2014. Stepchildren must have been continuously present since at least June 17, 2024. Finally, applicants must not have a disqualifying criminal history. They must not pose a threat to public safety or national security.
Filing and Documentation
The Form I-131F application process is entirely online. Each person applying, including children, needs their own MyUSCIS account and must file a separate form. A parent or legal guardian can create an account and file for a minor child. The filing fee is $580. Fee waivers or exemptions are not available for this process.
Applicants must submit various documents to prove their eligibility. These include evidence of their identity and relationship to the U.S. citizen, such as a marriage certificate or birth certificate. They must also provide proof of their continuous physical presence in the U.S. for the required period. This can include documents like tax returns, utility bills, or school records. If applicable, applicants must provide criminal history records.
Processing and Outcomes
After filing, applicants will receive a receipt notice and a biometrics appointment. USCIS has not set a specific processing time for Form I-131F. However, they advise applicants to follow up on their case after 90 days if they have not heard anything.
If approved, parole is typically valid for up to three years. A grant of parole does not grant a Green Card. However, it may allow the individual to apply for adjustment of status to become a lawful permanent resident without having to leave the U.S.
Breaking Down the Federal Register Notice: DHS’s Family-Focused Plan
In June 2024, the Department of Homeland Security (DHS) announced a parole-in-place program called “Keeping Families Together.” This was for certain noncitizen spouses and stepchildren of U.S. citizens. The program aimed to promote family unity and economic stability. It also sought to streamline the immigration process with background checks.
This program allowed eligible people in the U.S. without a lawful entry to apply for relief. They could do so without leaving the country. Leaving the U.S. for consular processing often leads to long family separations. This new program would have granted parole in place on a case-by-case basis. Parole in place is a discretionary authority. It allows DHS to grant temporary presence for urgent humanitarian reasons or for a significant public benefit. Individuals granted parole could then apply for adjustment of status to become lawful permanent residents. This would let them get a Green Card without leaving the U.S.
Eligibility
The eligibility criteria were specific. Applicants had to be the noncitizen spouse or stepchild of a U.S. citizen. The qualifying marriage had to be valid on or before June 17, 2024. For stepchildren, the noncitizen parent had to marry the U.S. citizen before the stepchild’s 18th birthday and on or before June 17, 2024.
Applicants also had to have been in the U.S. continuously for a set period. Spouses needed to be present since at least June 17, 2014. Stepchildren needed to be present since at least June 17, 2024. All applicants had to lack a disqualifying criminal history. They could not pose a threat to public safety or national security.
The Application
The application process was online only. Applicants had to file Form I-131F, “Application for Parole in Place for Certain Noncitizen Spouses and Stepchildren of U.S. Citizens,” through a MyUSCIS online account. Each person, including children, needed a separate account and form. The filing fee was $580. Fee waivers were not available.
Applicants had to submit various documents. These included proof of identity, the U.S. citizen’s citizenship, their relationship, and continuous physical presence. Anyone with a criminal history had to provide records showing the final outcome of any charges. After filing, applicants would have a biometrics appointment for fingerprints and photos. If approved, parole would generally be for up to three years. This would allow them to apply for work authorization and, if eligible, for a Green Card.
Program Status
The “Keeping Families Together” program has been halted. On November 7, 2024, a federal court in Texas ruled against it. The court vacated the parole process. USCIS is no longer accepting or processing new Form I-131F applications. All pending applications will not be adjudicated. Biometrics appointments for this process have also been canceled. USCIS has stated that it will provide more information on how it will handle pending cases and paid fees.
Director of U.S. Citizenship and Immigration Services. “This process to keep U.S. families together will remove these undue barriers for those who would otherwise qualify to live and work lawfully in the U.S., while also creating greater efficiencies in the immigration system, conducting effective screening and vetting, and focusing on noncitizens who contribute to and have longstanding connections within American communities across the country.”
A request for remand was not frivolous because the Board of Immigration Appeals (BIA) made a clear error. The BIA misconstrued a California law and a state court order. The state order had vacated a petitioner’s plea. It found the plea was constitutionally deficient. This error by the BIA justified sending the case back for a new review.
Legal Background
This case highlights the link between state and federal law in immigration cases. California Penal Code §1473.7(a)(1) lets people who are no longer in custody challenge a conviction. The challenge must be based on a “legally invalid” plea. A plea is legally invalid if an attorney made a prejudicial error. For example, they may have failed to advise a defendant of immigration consequences. This is a crucial issue for noncitizens, as convictions can lead to deportation.
The BIA is the highest administrative body for immigration law. It must consider state court records and state law when reviewing a case. In this instance, a state court had set aside the petitioner’s conviction under the California law. This action nullified the conviction.
The BIA’s Mistake
The BIA failed to properly recognize the effect of the state court’s order. BIA policy is to give effect to state orders that vacate convictions due to a defect in the original proceedings. The state court’s finding of a “constitutionally deficient” plea meant the conviction was legally invalid from the start.
The BIA, however, did not give the state order its proper weight. It likely saw the vacatur as an attempt to avoid deportation. It did not see it as a correction of a legal error. This misinterpretation was a legal mistake. Therefore, a remand was a necessary and proper step for the petitioner to correct the BIA’s error. The petitioner was not relitigating facts. Instead, they were asking the BIA to re-examine the legal effect of the state court’s decision. This confirms that a remand is a valid action when a legal body makes a clear error.
Starting August 14, 2024, the Department of Homeland Security (DHS) changed its policy for processing asylum seekers at the U.S.-Canada border. These changes aim to limit attorney access. They also increase the use of expedited removal. The new rules came after a rise in migrant crossings on the northern border.
Asylum Process Changes
The new policy makes two major changes to speed up the asylum process. These rules apply to people covered by the Safe Third Country Agreement with Canada.
First, during the Threshold Screening Interview (TSI), asylum officers will only consider evidence that is available at the time of the interview. In the past, migrants could delay their screening to get more documents. The new rule now requires applicants to present all testimony and documents during this first interview.
. The consultation period is a minimum of four hours. It only runs from 7 a.m. to 7 p.m. This strict time limit on legal help could hurt an asylum seeker’s ability to prepare for their interview.
Expedited Removal
The main goal of the new policy is to use expedited removal more often. This process allows immigration officers to quickly deport certain noncitizens without a hearing before an immigration judge. Asylum seekers can still express a fear of persecution to avoid immediate removal. However, the process is very fast. They must have a Credible Fear Interview (CFI) with an asylum officer. If the officer finds no credible fear, the person can be quickly deported. The new policies are designed to make it harder to pass this first screening. This, in turn, increases the number of people who can be placed in expedited removal.
Critics argue that these changes pose risks to due process. Limiting attorney access and speeding up the process could lead to the deportation of people with valid asylum claims. These changes create a faster path to deportation. This is especially true for those who lack the time or resources to get evidence and legal help under the new, stricter rules.
The humanitarian parole program, often called the CHNV program, was a key part of the Biden administration’s strategy for managing migration. Department of Homeland Security initiatives provided a legal and orderly way for individuals to come to the U.S. temporarily. The program required U.S.-based sponsors to financially support the applicants. The goal was to reduce illegal crossings at the U.S.-Mexico border. Over 500,000 individuals benefited from the program.
On March 25, 2025, the new DHS Secretary announced the termination of the CHNV program. DHS stated that parole for these individuals would expire no later than April 24, 2025. This move effectively left over half a million people without a clear path to legal status. The Department of Homeland Security has also stated that it would prioritize the removal of CHNV beneficiaries who remain in the U.S. without a pending immigration application after their parole expires.
Legal Challenges and Future
The program’s termination has faced legal challenges. The lawsuit alleged violations of the Administrative Procedure Act and the Due Process Clause of the Fifth Amendment. In April 2025, a judge temporarily paused the termination. However, the U.S. Supreme Court later allowed the DHS to end the program on May 30, 2025.
The termination of this program is a major policy change. It removes a key pathway for individuals from these four countries to enter the U.S. legally. The Department of Homeland Security’s decision has created uncertainty for many families. It has also raised concerns among immigration advocates. They worry that it could lead to an increase in unauthorized border crossings.
This morning, USCIS announced it has randomly selected a sufficient number of registrations for unique beneficiaries needed to reach the FY2025 regular H-1B cap from the remaining properly submitted FY2025 registrations and notified all selected registrations. The agency reminds filers that all applications must include current filing fees, including Form I-907 if included, and the new version of Form I-129, Petition for a Nonimmigrant Worker.
DOS Addresses Class Certification: Key Information for Affected Parties
The U.S. Department of State (DOS) has provided information following a major federal court order. The U.S. District Court for the Northern District of California certified a class in the consolidated cases of Farangis Emami, et al. v. Alejandro Mayorkas, et al. and Pars Equality Center, et al. v. Antony Blinken, et al. This legal action was on behalf of visa applicants who were refused visas under Presidential Proclamation 9645. This proclamation, often called the “Muslim Ban” or “Travel Ban,” was in effect from December 8, 2017, to January 20, 2021.
Who is Eligible?
The court order provides specific relief for a group of individuals known as “class members.” You may be a class member if you are a national of Iran, Libya, North Korea, Somalia, Syria, Venezuela, or Yemen. You must have also been denied a visa under Proclamation 9645 between December 8, 2017, and January 20, 2021. This includes both immigrant and non-immigrant visa applicants. However, there are some exceptions. For example, individuals who were denied a diversity visa or who received a waiver under the proclamation are not eligible for this relief.
The Benefits of the Order
Starting on August 12, 2024, eligible class members were able to receive a one-time, non-transferable fee credit. This credit can be used to submit a new visa application. Additionally, eligible class members have the option to receive a prioritized visa appointment. This is a significant benefit, as visa applicants often face long waiting periods for appointments, particularly at certain U.S. embassies and consulates. The court order also requires consular posts to process these new visa applications without prejudice from the prior denial under Proclamation 9645.
How to Get the Fee Credit and Prioritized Appointment
To claim the benefits, eligible class members must first complete a new visa application form (either the DS-160 for non-immigrants or the DS-260 for immigrants). After completing the form, they must follow specific instructions provided by the Department of State to indicate that they are an “Emami Class Member.” This is crucial for their application to be correctly processed and for the fee credit to be applied. The Department of State has set up a verification process, and individuals must provide information from their previously refused application to confirm their identity and eligibility.
The Department of State has identified over 24,000 potential class members based on its records. The attorneys for the plaintiffs are also attempting to reach out to class members using contact information from their old applications. This litigation is a major step toward addressing the lasting effects of the travel ban on affected individuals and families. It provides a concrete and streamlined pathway for them to re-apply for the visas they were previously denied.
The issue was with the Certification Approval Appendix for the PERM (Program Electronic Review Management) program. A technical glitch had caused the job title field to be left blank on some PDF certifications. This was a significant problem for employers and immigration lawyers. The PERM certification is a crucial document for the next step in the green card process, which is filing Form I-140 with U.S. Citizenship and Immigration Services (USCIS).
The DOL has now confirmed that all affected documents have been regenerated. The corrected files now show the correct job titles. They are available on the PERM Filers FLAG Dashboard. Users can print the corrected certifications from the “Historical” tab in the ETA Form 9089 section of their FLAG account.
USCIS Confirmation
USCIS has also provided important information. It confirmed that filing an I-140, Immigrant Petition for Alien Worker, with the original, uncorrected PERM certification should not cause a problem. This means that using the flawed document will not negatively affect the I-140 petition’s outcome.
This confirmation is a key safety measure for petitioners. It prevents unnecessary delays or rejections for those who already filed their I-140. USCIS can still process the petition based on the other information provided.
The PERM program is an essential step for many employment-based green card applicants. It requires employers to prove they could not find a qualified U.S. worker for the job. Once approved, the PERM certification supports the I-140 petition. This is the official request to classify the foreign worker as eligible for a green card.
The quick action by both the DOL and USCIS is a positive sign. It shows they are working together to reduce problems in the immigration process. The resolution of this technical error minimizes disruption for employers and foreign workers. This is a helpful development for those on the long journey to permanent residency.
What changed Under the rule, DHS automatically adjusts the dollar amounts in 8 C.F.R. §212.19 every three years to preserve the standard’s real value. As of Oct. 1, 2024, the minimum qualifying investment from U.S. investors and the revenue/receipt benchmarks rose to reflect inflation. (These are eligibility thresholds; the IER filing fee did not change with this update. These adjustments are overseen by the U.S. Citizenship and Immigration Services to ensure compliance and integrity.)
Who can qualify under IER Founders must show:
A central and active role in a U.S. startup formed within the past five years;
Substantial ownership (generally at least 10% initially); and
Rapid growth potential, demonstrated through qualified U.S. investment, significant government grants/awards, or partially meeting those metrics with compelling alternative evidence of public benefit (jobs, innovation). Parole is discretionary, typically up to 30 months, with a possible 30-month re-parole if milestones are met. U.S. Citizenship and Immigration Services evaluates applications based on these criteria.
Why this matters
Keeps standards current without new rulemaking, giving startups clearer planning horizons monitored by U.S. Citizenship and Immigration Services.
Signals continued agency support for founder-led job creation while safeguarding program integrity through objective, inflation-indexed metrics.
Action steps for founders and investors
Re-underwrite eligibility against the Oct. 1, 2024 thresholds before filing or re-parole.
Package term sheets, wire proofs, cap tables, and investor bona fides (track records, registrations) tied to the updated amounts as advised by the U.S. Citizenship and Immigration Services.
If short on the new dollar figures, bolster with government awards, traction metrics (ARR, users, pilots), and expert letters to meet the “significant public benefit” prong.
Map the post-parole plan (hiring, customer contracts, IP) and long-term immigrant pathway (e.g., EB-1A, EB-2 NIW).
For a concise explainer tailored to applicants, see our firm’s summary of the October 2024 IER update. Law Offices of Brian D. Lerner
Legal Background: Understanding Wilkinson v. Garland
In a decision dated June 24, 2024, the court in Santiago Lopez v. Garland determined it could not hear the petitioner’s challenge to an immigration judge’s (IJ) ruling. The Mexican petitioner had been deniedcancellation of removal, a form of immigration relief. The court held that under the U.S. Supreme Court’s recent ruling in Wilkinson v. Garland, it lacked jurisdiction to review the IJ’s discretionary decision.
Understanding the Legal Context
This case hinges on a critical distinction in immigration law: the difference between reviewable “questions of law” and unreviewable “discretionary decisions.”
Cancellation of Removal: This is a form of relief for non-permanent residents facing deportation. To be eligible, an individual must meet several criteria. They must have been physically present in the U.S. for at least 10 years, have good moral character, and have no disqualifying criminal convictions. Most importantly, they must demonstrate that their removal would cause “exceptional and extremely unusual hardship” to a U.S. citizen or lawful permanent resident spouse, parent, or child. Even if an applicant meets all of these criteria, the immigration judge has the final say. The decision to grant or deny relief is discretionary, meaning it is a judgment call by the judge.
Wilkinson v. Garland: The Supreme Court’s ruling in this case clarified the scope of judicial review for certain immigration decisions. The Court held that federal courts can review “mixed questions of law and fact.” This applies when an immigration judge applies a legal standard (like the “exceptional and extremely unusual hardship” standard) to a set of facts. The Court determined this was not a purely factual or discretionary decision and was therefore reviewable.
The Court’s Application of Wilkinson
In the case of Santiago Lopez, the court found that his challenge was not to a legal question but to the discretionary part of the IJ’s decision. The IJ in Lopez’s case had assumed for the sake of argument that Lopez had met the statutory requirements for eligibility, including the hardship standard. The IJ then went on to deny relief as a matter of discretion, based on a balance of positive and negative factors in the petitioner’s record. In Lopez’s case, the court noted that the IJ’s decision was based on “his history of drunk driving and disregard for U.S. laws.” The court concluded that this type of balancing of equities, where the judge weighs a petitioner’s positive factors against their negative ones, is a purely discretionary act.
Because the IJ’s decision to deny relief was an exercise of discretion, not the application of a legal standard to established facts, the court determined that it did not have the authority to review the decision. The ruling in Wilkinson allows for a review of whether the hardship standard was properly applied, but it does not open the door for a review of the ultimate discretionary decision to grant or deny relief. The court’s decision in Santiago Lopez affirms that while the scope of judicial review has expanded, it does not extend to second-guessing an immigration judge’s final discretionary judgment.
In Alfaro Manzano v. Garland, a court held that the Board of Immigration Appeals (BIA) made a legal error in an asylum case. The petitioner was denied asylum, but granted withholding of removal. The immigration judge (IJ) found that while his religion was a reason for his persecution, it was not “one central reason,” which is the stricter standard required for asylum. The BIA affirmed this decision, but the Court of Appeals for the Ninth Circuit disagreed.
The “One Central Reason” Standard
The key issue in this case was the interpretation of the asylum standard. Under U.S. immigration law, to be granted asylum, an applicant must prove they are a refugee. This means they must show they have a well-founded fear of persecution “on account of” a protected ground, such as race, religion, nationality, political opinion, or membership in a particular social group. The law requires that the protected ground be “at least one central reason” for the feared persecution. This standard can be complex, especially when persecutors have multiple motives.
The Facts of the Case
The petitioner in this case, a Jehovah’s Witness from El Salvador, was targeted by a gang. The gang members tried to extort him, but they also threatened him because he was a preacher. He spoke to young people in his community about choosing a religious life over joining a gang. The BIA and the IJ concluded that the gang’s primary motive was to extort him for money and power. They saw the religious motivation as “incidental” or “subordinate” to this main goal. They therefore denied asylum.
The Court’s Reversal
The Ninth Circuit Court of Appeals reversed the BIA’s decision. The court explained that a motive can be “one central reason” for persecution even if it’s not the only reason. When there are mixed motives, the protected ground must be “primary, essential, or principal” and cannot play a “minor role.” The court found that the record in this case compelled the conclusion that the petitioner’s religion was a central reason for the persecution. Even if the gang had not sought to extort him, his religious practice of preaching, which directly challenged the gang’s influence, would have been enough to cause the harm. The court held that it was an error for the BIA to treat the motives as mutually exclusive. It remanded the case back to the BIA for further proceedings. This decision is important because it clarifies the “one central reason” standard and provides a more comprehensive framework for analyzing cases with mixed motives for persecution.
In U.S. immigration law, an Aggravated Felony is a critical designation that carries severe consequences. Unlike criminal law, this category includes many offenses that may be classified as misdemeanors at the state level.
Key Consequences
Mandatory Detention: Ineligible for bond during proceedings.
Permanent Bar: Categorical ability from asylum and most exile relief.
Lifetime Ban: Formal removal often results in a permanent bar from enter the U.S.
Consulting a specific attorney is vital to challenge these ranking and protect your legal status.
Aggravated Felony — definition, common examples, and immigration consequences
“Aggravated felony” is a term of art in immigration law that triggers some of the harshest consequences a noncitizen can face: mandatory deportability in many cases, ineligibility for cancellation of removal and many other forms of relief, mandatory detention in removal proceedings, and permanent bars to naturalization and reentry. The Immigration and Nationality Act (INA §101(a)(43)) lists dozens of categories that can qualify as aggravated felonies.
Short definition & legal framework
Statutory list: INA §101(a)(43) enumerates many categories (drug trafficking, theft/burglary with 1+ year sentence, fraud with loss > $10,000, sexual abuse of a minor, etc.).
Categorical approach: courts compare the statute’s elements to the federal “generic” offense; this is a technical inquiry that decides if the conviction “categorically” fits the aggravated-felony definition.
Practical screening steps
Obtain certified conviction records, plea colloquies, and sentencing documents.
Run a categorical/divisible analysis and review applicable circuit precedent.
Coordinate criminal-plea strategy to minimize immigration exposure where possible.
We provide conviction audits, plea-negotiation recommendations, and immigration litigation strategies to protect clients exposed to aggravated-felony consequences.
