The Board of Immigration Appeals has issued a binding precedent decision requiring immigration judges and the Board to examine an alien’s actual criminal conduct—not solely their convictions—when evaluating applications for discretionary relief from removal. On June 2, the BIA published an opinion reversing an immigration judge grant of cancellation of removal to a Canadian national with an extensive criminal history. On May 29, acting Attorney General Todd Blanche directed the Board to publish it as precedent to guide future decision-makers.
What changed
The case is Matter of Mills, and the BIA originally issued it on April 28 as an unpublished opinion. The key takeaway is simple: when exercising the attorney general’s discretion, adjudicators should consider the alien’s crimes, not just their convictions.
The BIA in Matter of Mills appears to address a case where the government alleged—and the immigration judge found—that Mills’s “two separate convictions for criminal possession of stolen property and burglary in 2000” were crimes involving moral turpitude and therefore Mills was removable. However, the immigration judge had initially granted cancellation of removal despite those convictions. The BIA reversed, holding that discretionary relief decisions must rest on an examination of what the alien actually did, not merely what convictions stick.
This precedent affects the attorney general’s broad discretion in evaluating cancellation of removal under section 240A of the INA and similar discretionary forms of relief. The Board sets limits on how the attorney general’s discretion should be applied and clarifies that in granting discretionary relief to criminal aliens, immigration judges should not only consider what criminal aliens were convicted of, but what they actually did.
Why it matters
If you represent an alien seeking discretionary relief—whether cancellation of removal, a section 212(c) waiver, or any other form of relief requiring exercise of the attorney general’s discretion—Matter of Mills narrows your lane. You can no longer rely solely on the technical sufficiency of a conviction or argue that certain conduct falls outside the formal conviction record.
Immigration judges now have a binding instruction: examine the conduct underlying the conviction and any other criminal or deportable conduct, even if it isn’t formally charged or convicted. This is particularly important in criminal cases with plea deals, diversion programs, or state-court vacatures that may limit the formal record.
The decision also signals the current AG’s enforcement priorities. The precedent is part of an attempt by Attorney General Pam Bondi to eliminate any lingering effect of the Biden administration’s permissive attitude toward alien criminals. Practitioners representing noncitizens with criminal histories should expect immigration judges to apply a tighter discretionary lens.
Way forward
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Review your pending discretionary relief cases. If you have clients awaiting immigration judge or BIA decisions on cancellation, 212(c) waivers, or other discretionary forms of relief, prepare supplemental submissions focusing on the complete factual picture of their conduct—not just the convictions on paper.
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During credible fear / reasonable fear screenings and removal hearings, thoroughly develop the factual record on all uncharged or undercharged conduct. The BIA will now examine it.
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For state post-conviction relief strategies, be aware that vacating or modifying a conviction may no longer shield your client if the underlying conduct is well-documented. Matter of Mills signals that the Board will look beyond the conviction itself.
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Communicate realistic expectations to clients. Discretionary relief is now harder to obtain. Aliens with serious criminal histories—especially repeat offenders—face a significantly higher burden to overcome the presumption against relief.
Disclaimer
This article is for informational purposes and does not constitute legal advice. Fola Form is a software company, not a law firm. Please consult a licensed immigration attorney in your jurisdiction to discuss your specific case. Immigration policy and BIA precedent can change without notice; verify all information against the primary source linked above and current binding authority before relying on it in client advice or filings.