Summary
The Fourth Circuit Court of Appeals denied a petition for review challenging a Board of Immigration Appeals decision on an application for cancellation of removal. The petitioner contended that an internal Executive Office of Immigration Review memorandum mandated issuing a reserved grant of relief within five days of visa availability, but the court found the memorandum non-binding and inapplicable when the original immigration judge retired. Because the petitioner incurred a new felony charge before a final decision was issued, he failed to demonstrate substantial prejudice or entitlement to relief.
Topics
Practice areas
Questions Presented
- Whether OPPM 17‑04 is a binding rule that creates an enforceable right to issue a reserved cancellation decision within five days after a visa becomes available
- Whether petitioner suffered prejudice from the alleged delay
- Whether the BIA’s discretionary findings are subject to appellate review
Holdings
- OPPM 17‑04 is not binding and does not create an individual right to a decision within five days.
- Petitioner was not substantially prejudiced because the discretionary grant was never vested and the new Immigration Judge was free to consider the later criminal conduct.
- The BIA’s discretionary findings on cancellation are not subject to substantive review; only legal questions are reviewed de novo.
Key quotations
“OPPM 17‑04 does not create any individual right. This determination is in accord with the decisions of our sister circuits that have considered this and other similar internal procedures.” (at 12)
“Even if the reserved grant of Cancellation had been issued by January 20, 2023, Petitioner would have still been in BIA proceedings when he incurred the new criminal charge.” (at 13)
Factual background
Petitioner, a Honduran native, entered the United States without authorization in 2003 and was placed in removal proceedings in 2014. He filed for cancellation of removal in 2016, satisfied the physical‑presence requirement, and was initially slated for a grant pending a visa number. A visa became available in January 2023, but the original Immigration Judge retired. A new Immigration Judge later denied the application based on lack of good moral character after the petitioner was arrested for a felony hit‑and‑run.
Procedural history
Petitioner filed an application for cancellation of removal in 2016. The initial Immigration Judge reserved the grant when the statutory cap was met. After a visa became available, the case was reassigned to a new IJ who denied the application on moral‑character grounds. The BIA affirmed. Petitioner appealed to the Fourth Circuit challenging the delay under OPPM 17‑04.