Ep. 316 - Precedential Decisions: 5/11/2026 - 05/17/2026 (no mandatory detention of EWIs; seeking admission; cannot against surplusage; due process rights of noncitizens; past persecution; reasonable relocation in India; Sikh; Urias Orellana)

Lopez-Campos, et al. v. Raycraft, et al., No. 25-1965 (6th Cir. May 11, 2026)

• no mandatory detention of EWIs; Hurtado; seeking admission; INA § 235(a)(2)(B); Laken Riley Act; applicant for admission entry; canon of constitutional avoidance; plain text; statutory interpretation; longstanding agency interpretation; legislative history; use of the word “otherwise”; cannot against surplusage; due process rights of noncitizens

B. Singh v. Blanche, No. 24-815 (9th Cir. May 15, 2026)

• past persecution; beatings; threats; reasonable relocation in India; Law Library of Congress report; Mann Party; Sikh; Urias Orellana; substantial evidence

Kurzban Kurzban Tetzeli and Pratt P.A.
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Transcript

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SPEAKER_00 0:05

He succeeded with young head cases from the VIA this week. Five! My God. My God. Never never let him tell you again that an administrative agency can't do anything. The first one is a matter of D G E A N G G E. This case is about anti-game political opinions. And I read and outlined it before the first circuit decision that I just did came out, so take that qualifier. But isn't it just so fun to do them back to back? I like it. Huge shocker, BIA isn't a fan. And as I've already discussed significantly, the decision took quite a few hits in the first circuit after only a few days of existence. Tough life. So again, BIA doesn't like so again, BIA doesn't think gang stuff is political, right? But am I misremembering? Don't I recall the first President Trump using the presidential bully pulpit to Don't I ru don't I recall the first President Trump using the presidential bully pulpit to accuse the Speaker of the House, Nancy Pelosi, of being a political supporter of MS 13? I must be misremembering, because otherwise, that would seem a strong indication that pro or anti-Salvadoran gang opinions can be political. Unmentioned by the BIA that. Miss DGEA is the lead respondent, and she applied for asylum based on the persecution she suffered at the hands of her husband and her fear of him and his sister, the latter of whom is a gang member, Mara 18. Same gang that we just talked about, different country. The asserted particular the asserted political opinion was, quote, opposition to the Maras and their activities as the de facto government of El Salvador, end quote. Specifically, Miss D G Specifically, Miss DGEA asserts that she, quote, holds the opinion that gangs, gang activities and corrupt government act and corrupt government actors who work with them are morally wrong, an opinion rooted in her Christian faith. She contends that she manifested such a political opinion by avoiding gang activities and specifically resisting and avoiding gang ties. She also contends that because she considers gangs and Al Salvador to be political actors, resistance to gang activity is an overtly political act. End quote. The BIA doesn't see it. The First Circuit might. But to reject it, the BIA takes us on an at to reject it, the BIA takes us on their tour of asylum law. Political opinion is, of course, one of the five protected grounds, but it's not further defined by the INA. The definition of a refugee at U.S. law begins in 1980 with the Refugee Act. Thank you in large part to Ted Kennedy, if I'm not mistaken. As statutory interpretation through dictionaries is all the rage, the BIA tries its hand at that with political opinion. Quote, when the Refugee Act was enacted, Webster's Dictionary, 1979, defined political as of or relating to government, a government or the conduct of government, of relating to or concerned with the making as distinguished from the administration of governmental policy and of relating to or involving politics and especially party politics. End quote. The BIA says the Black's law dictionary, too, but I am not going to do that to you again. In the 1992 decision, INS VLIS Zacharias, the Supreme Court explains that a political opinion nexus must be on account of the victim's political opinion, not the persecutors. And in that case in particular, quote, the motivation of the Guerillas to expand their membership for political reasons was independent of the respondents' views. End quote. Going over some more stuff, the BIE concludes that, quote, a political opinion under the INA requires an expression, either through active or indirect, either through active or indirect conduct of a belief or conviction regarding a discrete cause which is related to a government, end quote. Isn't it just incredible how much immigration law has been left open by past administrations, such that a dedicated BIA, an administration that cares about immigration, can swoop in and literally redefine and rewrite everything? I don't know, I find it incredible. The BIA explains that this aligns with circuit precedent, that is requiring a quote, discrete cause which is related to a government, end quote. I don't recall the first circuit saying that just now. Now true explains the BIA, quoting the Ninth Circuit, quote, when the alleged corruption is inextricably intertwined with governmental operation, the exposure and prosecution of such an abuse of public trust is necessarily political. End quote. That seems like something to me. But quote, retaliation completely untethered to a governmental system does not afford a basis for asylum, end quote. Emphasis by the BIA. Here, no government connection, right? Just Mare 18 and the accusation that they behave like a government in many places in El Salvador. The BIA states, quote, circuit courts have generally concluded that opposition to non-governmental groups does not in itself reflect a political opinion, end quote. The BIA discusses some cases, but not the first circuit one that I

Lopez-Campos, et al. v. Raycraft, et al., No. 25-1965 (6th Cir. May 11, 2026)

SPEAKER_00 5:24

just did. Cause it came out afterwards. But then it mentions how the Eighth Circuit in Aguilar Garland held that where quote reiterated but then it mentions the Eighth Circuit's decision in Aguilar Garland, where the court quote reiterated a prior ruling that evidence of a gang's political mindedness may be sufficient to demonstrate resistance to the gang as a political opinion, end quote, while narrowing that rule in certain ways. The BIA doesn't agree with that quote, but also no longer enjoys chevron deference in what it believes constitutes a political opinion, those of you in the Eighth Circuit. Nor does the BIA like the Second Circuit's remand in Hernandez Chacon V bar, or the First or the Fourth Circuit's in Alvarez Lagos V Bar. Quote, we do not agree that opposition to a gang's activities that influence a neighborhood would be sufficient to establish a political opinion claim that relates to a gang purportedly acting of government, end quote. Rather, quote, a political opinion under the INA must be tethered to an expression of a belief or conviction regarding a discrete cause related to the government of a country, or, as further discussed below, a de facto government, end quote. And while political opinion is more than traditional politics, quote, disapproval of or opposition to criminal gangs is not sufficient to establish a political opinion under the INA, end quote. But again, peak those decisions in the first, second, fourth, and eighth circuits. Now we've covered a lot of ground in this BIA decision, but we have significantly more to do. I'm not writing them. The BIA has been verbose of late. Getting pretty interesting, too. Opposition to a de facto government will cut it, explains the BIA. But quote, a de facto government is a government that has taken over the regular government and exercises sovereignty over a country, end quote. Where'd they get that rule from? They also think a de facto government, quote, is in the full and actual exercise of sovereignty over a territory and people large enough for a nation, end quote. I don't know, seems kind of mushy. How large does a nation need to be? How many people either? How many people, too? But when a non-citizen, quote, establishes that a de facto government controls a country, a non-citizen can establish a basis for a political opinion claim if the non-citizen expresses a belief or conviction in furtherance of a cause related to the de facto government. End quote. Right, so trying to not make it an anti-gang claim, which the First Circuit just said you could do. And what about when a gang just and what about when a group just controls like a subportion of a country? Is that enough? Unanswered here because the BIA thinks that the Mariette's control isn't enough. Quote, the country conditions evidence in the record does not show that the gangs are acting in the position of the ruling authority or government in El Salvador, nor demonstrate a level of influence that shows control or governance. They're bad and powerful people, explains the BIA, but not powerful enough to protect people from them in America. Also, again, need to have a quote actual imputed belief or conviction regarding a discrete cause that is tied to a government of a country, including a de facto government, end quote. BIA is just kind of making stuff up, guys, but that is what it can do, as the final administrative say. Now, Miss DGEA also asserted eight other particular social groups because that's what asylum law has developed to essentially require. The BIA goes through them pretty quickly. Denied the gender-based stuff because its own decision in matter of KESG last year, doesn't like the family and other gender stuff either, citing the matter of LEA II and matter of AB1 and II, brought back to life by Miss Bondi before her own demise. Also, some of the groups are impermissibly circular to the BIA to find too much by the risk of harm and not particular in society. Really just taking a hack side of lots of particular social groups inserted in these types of cases, quote, Salvadoran women in a domestic relationship with a machista male is not a cognizable social group because it is not defined with the requisite particularity, end quote. For example. The BI affirmed denial of cat protection, too. Not a particularised risk of torture in the government's general ineffectiveness does not establish acquiescence to the board. Plus, of course, chain of suppositions, the usual stuff. Meaning Miss DGEA and her minor daughter will soon, it seems, be sent back to what everyone, having touched this case, appears to agree are very dangerous conditions for them in El Salvador. I was gonna shut up, but then I received an email. Editor Midcase Music, please. From Tony Lee with the nonprofit Safe Route Immigration of Lutheran Community Services Northwest in Oregon. I am not a religious man, but man, these religious organizations are really stepping up during this administration. Tony wrote me before the First Circuit rejected much of the BIA's thoughts on this MS-13 political opinion asylum. Tony wrote me before the First Circuit rejected much of the BIA's thoughts on this gang political opinion asylum claim with his own surreal ob with his own surreal observation. Tony writes that on the very same day that the BIA issued this decision, the BBC published an article relaying that El Salvador has initiated a mass trial against 486 members of MS-13, charging them with, among other things, quote, rebellion for attempting to maintain territorial control to establish a parallel state. End quote. Agree, though, not funny in the traditional sense. Link in the show notes. And thanks a bunch, Tony. And that is a matter of D G E A and N G G E.