Founding Partner Wynne Kelly shares takeaways from the AILA D.C. Chapter fall conference on how the BIA is reweighing discretion in cases involving criminal history.
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The Board of Immigration Appeals is aggressively applying its de novo review of the discretionary determinations of immigration judges, often in seemingly fact-specific, short opinions identified as binding precedent, and almost always in holdings that disfavor respondents. That was the message of my segment at this fall's AILA D.C. Chapter conference.
On October 2, 2026, I joined Ashley Warmeling of the Virginia Indigent Defense Commission and Himedes Chicas of Jezic & Moyse, LLC on a panel titled "Passing the Baton from Crim to Imm Counsel: Navigating the Critical Handoff in Crimmigration Cases," coordinated by Becca Swaintek-Green of Swaintek-Green Law, LLC. My co-panelists provided outstanding and detailed explanations of many of the critically important considerations of “crimmigration” in today’s immigration practice like: what counts as a "conviction" under INA § 101(a)(48)(A), Crespo-compliant pleas in Virginia, deferred dispositions in Virginia, D.C., and Maryland, the mandatory detention provisions of the Laken Riley Act, and the complexities of post-naturalization criminal convictions intersecting with pre-naturalization conduct.
Shifting to the immigration courts and the BIA, I provided a summary of how the Board’s recent decisions on the effects of criminal convictions on discretionary determinations.
Before turning to individual cases, I pointed the audience to a recent piece by Professor Jason A. Cade of the University of Georgia School of Law, Welcome to the Trump Administration's Board of Immigration Appeals. The Immigrant Always Loses., 136 YALE L.J. FORUM 24 (2026). The article reflects a ton of scholarship and analysis of recent Board decisions.
Professor Cade reviews the first 100 precedent decisions in Volume 29 of the Administrative Decisions Under Immigration and Nationality Laws, issued by the Board and the Attorney General between January 31, 2025 and April 29, 2026. A few of his data points are striking and I highly recommend reading the full piece:
Professor Cade also sets out several lessons for federal courts. For example, after Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), the Board's statutory readings get no deference, and he argues its uniform outcomes undercut any claim to persuasive weight. And he criticizes the Board's selective use of the civil/criminal distinction.
The piece is thought provoking for many reasons. The general patterns of the Board’s decisions matches what I discussed in the BIA cases related to discretionary determinations and criminal convictions.
In each of these decisions the Board found against the respondent on a discretionary element of the respondent’s requested relief, and several reversed an immigration judge's favorable exercise of discretion.
Matter of Lema Mizhirumbay, 29 I&N Dec. 351 (BIA 2025). The immigration judge granted cancellation of removal. The respondent had five U.S. citizen children, served as music director for his church, and had lived in the United States for many years. On the other hand, though, were an OSHA fine arising from an incident in which an employee died, and a conviction for a willful OSHA violation causing death, with a four-month sentence. The Board reversed, calling the recent conviction a "major factor" that outweighed the positive equities it found neither unusual nor outstanding. The Board then declined to reach exceptional and extremely unusual hardship. One question I flagged as unanswered: if hardship is itself supposed to be part of the discretionary analysis, how can the Board weigh discretion without it?
Matter of Bain, 29 I&N Dec. 72 (BIA 2025). A pro se respondent, present since 1998 and an LPR since 2011, had a recidivist record from 2013 through 2021, including drug distribution counts. The Board found too little evidence of rehabilitation, noting he took no classes while incarcerated, and reversed the favorable exercise of discretion. It also noted a period of homelessness and unemployment. The Attorney General designated this four-page decision as precedential.
Matter of Palma-Olvera, 29 I&N Dec. 355 (BIA 2025). Two DWI convictions within the statutory period triggered the Castillo-Perez rebuttable presumption against good moral character. The Board held that the same record presumptively defeats cancellation as a matter of discretion. It focused on how much the respondent drank and his blood alcohol level at each arrest. This three-page decision was also designated as precedential by the Attorney General after the Board seemingly declined to publish it/identify it as precedential.
Matter of E-A-S-O-, 29 I&N Dec. 422 (BIA 2026). The respondent had a recent misdemeanor conviction for three counts of sexual abuse of a minor. The Board held that the recent conviction, combined with his minimization of culpability before the immigration judge, weighed heavily against discretion. It upheld a partial adverse credibility finding about his account of his own criminal history. As Professor Cade notes, the decision also overruled Matter of Juarez, 19 I&N Dec. 664 (BIA 1988), and its general presumption that a single misdemeanor is not a particularly serious crime for purposes of fear-based relief applications.
Matter of C-P-Y-, 29 I&N Dec. 610 (BIA 2026). The Board held that admission as an LPR does not prevent application of the serious nonpolitical crime bar based on arrest warrants issued after that admission. A recidivist record, with convictions dating to 2005 and an arrest as recent as 2024, outweighed strong equities: family ties, long residence, and hardship. The decision leaves open whether a foreign arrest warrant alone can establish probable cause for the bar.
Read together, these decisions are less about new rules than about how the Board now reviews discretion.
The lesson for both sides of the handoff is the same: build the evidentiary record early, and identify every positive and negative equity before the merits hearing.
The panel's theme was the handoff from criminal to immigration counsel, and these decisions show why this handoff should actually be more of a hand-in-hand cooperative arrangement. The facts that decide discretion are created in criminal court and in the years before a merits hearing. Counsel who coordinate early give their clients the best chance before a Board that is reweighing every equity.
My thanks to Ashley Warmeling, Himedes Chicas, and Becca Swaintek-Green, and to the AILA D.C. Chapter for a well-attended and informative program.
If you have a case where criminal history and discretion intersect, Emeriti Law is glad to set up a consult to see if we can help.
This post is for general information and is not legal advice.
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