The Board of Immigration Appeals (BIA) — the administrative appellate tribunal within DOJ that reviews trial-level immigration judge (IJ) decisions — recently published two decisions that respectively provide insight into how IJs should use their discretion in granting aliens “relief” from removal and release from immigration detention. More importantly, they are a plain attempt by Attorney General (AG) Pam Bondi to eliminate any lingering effect of the Biden administration’s permissive attitude toward alien criminals.
The Roles of the Immigration Courts and the Board of Immigration Appeals
Prior to the Homeland Security Act of 2002 (HSA), the AG, as head of DOJ, had almost complete control over most immigration-related matters.
The AG controlled immigration at the border (Border Patrol), the ports (INS Field Operations), and in the interior (INS Investigations and Detention and Deportation branches). INS adjudicators, using the AG’s authority, made decisions on immigration benefits. The AG’s INS attorneys staffed the immigration courts, arguing cases prepared by those AG-controlled operational units before the AG’s IJs.
The AG’s BIA then reviewed the decisions of cases argued by the AG’s INS attorneys and decided by the AG’s IJs. Ultimately, but rarely, the AG personally would render a final decision.
The HSA moved DOJ/INS’s immigration-enforcement functions, and most of its immigration-benefits authority, to the newly formed DHS. ICE enforces immigration law in the interior, CBP does enforcement at the borders and ports, and USCIS adjudicates most immigration benefits (State Department consular officers abroad continue to play a role, too).
The AG maintained authority over the immigration courts and the BIA, however, and so section 103(a)(1) of the Immigration and Nationality Act (INA) as amended by the HSA left the AG with a key power: to make determinations and issue rulings, which “shall be controlling” with respect to the rest of the executive branch, on “all questions of law”.
More simply, when IJs and the BIA make decisions in removal cases, they utilize that statutory power in the name of the AG — which is good, because AG Pam Bondi herself would never be able to rule on each of the more than half-million cases that roll through that system annually.
Section 240 of the INA specifically empowers IJs to make decisions in removal proceedings, and while the BIA isn’t mentioned in the INA, principles of due process require there to be some opportunity to seek review of those decisions, and the AG by regulation has assigned that responsibility to the BIA.
Most IJ decisions never make it to the BIA on appeal. In FY 2025, IJs completed more than 588,000 cases, but fewer than 100,000 appeals were filed with the BIA last fiscal year.
Matter of Palma-Olvera
Which brings me to the BIA’s October 2 opinion in Matter of Palma-Olvera.
The respondent is a Mexican national who is removable from the United States on an unstated ground (likely illegal entry). What is clear is that he isn’t a “lawful permanent resident” (LPR) — that is, he doesn’t have, and never has had, a “green card”.
As relief from removal, Palma-Olvera applied for “cancellation of removal and adjustment of status for certain nonpermanent residents” under section 240A(b) of the INA, better known as “42B cancellation”.
Beneficiaries of 42B cancellation receive green cards, but the INA caps total grants at 4,000 per annum, two reasons why cancellation is referred to as “a coveted and scarce form of relief”.
To be granted 42B cancellation, an applicant must: (1) have “been physically present in the United States for ... not less than 10 years”; (2) have been a person of “good moral character” during that period; (3) not have been convicted of certain criminal offenses; and (4) establish that deportation would result in “exceptional and extremely unusual hardship to” a U.S. citizen or LPR “spouse, parent, or child”.
“Exceptional and extremely unusual hardship” is a high bar, and Palma-Olvera’s claim is premised on the purported harm his USC son, who is “dealing with autism, Attention-Deficit/Hyperactivity Disorder, and other diagnosed mood disorders”, would face if his father were removed.
Again, however, “hardship” is just one of four essential elements in a 42B cancellation claim.
It appears from the BIA’s opinion that Palma-Olvera has been here for at least 10 years and doesn’t have any disqualifying criminal offenses. The impediment, according to the Board, is that he failed to show he’s been a person of “good moral character” or “GMC” for the past 10 years.
“Good moral character” is defined in section 101(f) of the INA, but in an unusual way: Instead of stating what GMC is, the statute explains what GMC isn’t. Those making their living by illegal gambling don’t make the cut, nor do prostitutes and pimps, smugglers, polygamists, Nazis, most drug users, “habitual drunkards”, and a host of other ne’er-do-wells.
That list, however, is not exhaustive, and Congress added a catch-all to section 101(f) that states: “The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character.”
Then-Acting AG Matt Whittaker relied on that section 101(f) GMC catch-all in his 2019 opinion in Matter of Castillo-Perez when holding that two or more convictions for drunk driving during the 10-year period for 42B cancellation creates a “presumption” an applicant lacks GMC.
Logically, the IJ was aware of Matter of Castillo-Perez, but in December 2024 granted Palma-Olvera 42B cancellation even though he, too, had two recent drunk-driving convictions: one in 2022, and a second in 2024. And therein hangs a tale.
Prior to the 2022 offense, Palma-Olvera admittedly would down eight to 10 beers each night at home, which calls into question how much emotional support he was actually providing his kid.
In any event, he had seven or eight beers the night of that first incident, which explains why he drove his car into a lamp post.
That would have been a wake-up call for many, but not Palma-Olvera: He never sought counseling, kept drinking after that conviction, and had a blood alcohol content “over 0.15, well above the legal limit” during his second offense, consistent with the “six or seven alcoholic drinks” he consumed in the three hours prior.
These weren’t “youthful indiscretions” or an unusual pattern of conduct by an ordinarily upstanding “noncitizen” based on the facts in the BIA opinion. Simply put, you cannot seek discretion based on hardship to a special-needs child and then live your life oblivious to the well-being of others.
Consequently, the Board found Palma-Olvera had failed to overcome the presumption set in Matter of Castillo-Perez and reversed the IJ’s 42B cancellation grant on “good moral character” grounds.
Matter of Rodriguez Pena
The second BIA decision is Matter of Rodriguez Pena, issued following ICE’s appeal of an IJ bond order releasing the respondent, who entered in April 1996 as a B-2 nonimmigrant and apparently has been an overstay for the better part of 30 years, on a $7,500 bond.
Rodriguez Pena has gotten around a lot during his three decades in the United States, because according to the BIA:
DHS submitted a background check showing that the respondent has had many encounters with law enforcement, including an arrest on drug trafficking related charges in North Carolina in 1997, an unknown encounter with law enforcement in Alaska in 2010, and a domestic violence related arrest in New Jersey in 2019 from an alleged incident in 2007.
None resulted in a conviction, but apparently at some point he also adopted the alias “Efrain Vazquez” and claimed to be a U.S. citizen born in Puerto Rico.
Rodriguez Pena has been on ICE’s radar for a while, as he was released on a $20,000 immigration bond in 2019 and taken back into custody following his most recent state criminal arrest, again in New Jersey, in April 2025.
That arrest occurred after local cops heard Rodriguez Pena threatening to kill a “friend”, stating: “I am going to get a gun [and] shoot him.” He was charged with “Terroristic Threats — Threats to Kill”, a felony offense carrying a sentence of up to five years under New Jersey law.
While in ICE custody, he asked the IJ to reconsider his detention, and on May 1, 2025, the IJ ordered Rodriguez Pena released on the $7,500 bond.
The respondent isn’t subject to mandatory detention under section 236(c) of the INA, but that’s not dispositive on the issue of his release, because as AG John Ashcroft held in Matter of D-J-, even aliens who aren’t covered by that provision don’t have a “right to release on bond”.
Instead, under the applicable regulations and case law, respondents seeking release from ICE custody bear the burden of establishing that they don’t “present a danger to persons or property” and don’t “pose a risk of flight”.
The IJ concluded that Rodriguez Pena wasn’t a danger to the community based on an affidavit from the victim in the April incident, who claimed to have pushed the respondent and stated that he didn’t believe Rodriguez Pena “would harm him”, as well as “an email from a prosecutor stating that the victim did not want to prosecute the case”.
The problem, according to the BIA, was that the IJ failed to consider the rest of the victim’s statement, in which he explained Rodriguez Pena “was truly just upset the police officers showed up and became irate at that if anything”, adding “things escalated” and “became extra heated when the police came”.
Finding that “the circumstances of the respondent’s arrest raise rather than mitigate concerns over his erratic and volatile behavior” coupled with (1) the fact that “threatening to kill someone over being pushed is a disproportionate response indicative of dangerousness”; (2) “respondent’s negative reaction to law enforcement’s attempt to intervene”; (3) his false claim to citizenship and use of an alias; and (4) the fact that he committed this offense while already out on an immigration bond, the BIA concluded Rodriguez Pena failed to show that he isn’t a danger to the community and reversed the IJ’s bond order.
It didn’t help the respondent’s case that he failed to include a letter from his spouse even though he is married to a U.S. citizen and has U.S. citizen kids. That’s a questionable omission given his earlier “domestic violence related arrest”.
The AG’s Designations
Several key facts are missing from these two BIA opinions, including the immigration charges against each of these aliens and Rodriguez Pena’s nationality. But that’s because the BIA never meant to publish these opinions, and the parties didn’t need a recap of the basic points.
The BIA only published Matter of Palma Olvera and Matter of Rodriguez Pena because AG Pam Bondi told it on December 8 to do so, and the reason that she did so was clear: Now that they are precedent, every IJ must read and follow them.
It’s beyond cavil that the Biden administration expected IJs to follow very different standards when then-AG Merrick Garland was in charge, as evidenced by the 700,000-plus pending cases IJs dismissed, terminated, or closed under “guidelines” established by then-DHS Secretary Alejandro Mayorkas in September 2021 and other administration directives.
Those Mayorkas guidelines limited DHS’s ability to detain and prosecute criminal aliens, including aliens subject to mandatory detention, and Biden’s DOJ vigorously fought state challenges to those guidelines to maintain the administration’s right to ignore both the INA’s arrest and detention mandates and the dangers posed by criminal aliens.
The Supreme Court, in its June 2023 opinion in U.S. v. Texas, concluded that even states lack standing to sue an administration that refuses to protect the public from dangerous aliens, prompting Congress to pass the Laken Riley Act in January.
That act, which passed on a bipartisan basis, gave state AGs the authority to file suit to force compliance with the INA’s arrest, detention, and removal mandates. As such, it’s fair to view the Laken Riley Act as a repudiation of Biden’s criminal alien policies, and in particular the restrictions in the Mayorkas guidelines.
Plainly, these BIA cases were designated as precedent to stamp out vestiges of the “soft on alien crime” agenda of the last administration. Immigration judges exercise the discretion of the attorney general, and Pam Bondi wants them to use it more restrictively around criminals than Merrick Garland did.