Second Circuit Clarifies BIA’s Duties on Motions to Remand for “Military Parole-in-Place”

1. Introduction

Case: Calle v. Bondi, No. 24-1565-ag (2d Cir. 2025)

Parties: Petitioner Humberto Isidoro Calle, a citizen of Ecuador and father of an active-duty U.S. servicemember, versus Respondent Pamela Bondi, U.S. Attorney General.

Procedural Posture: Calle sought review of a Board of Immigration Appeals (“BIA”) decision that had denied his motion to remand his removal proceedings so he could pursue “military parole-in-place” (PIP) and adjustment of status before U.S. Citizenship and Immigration Services (“USCIS”). The Immigration Judge (“IJ”) had earlier denied cancellation of removal, and the BIA affirmed that denial; however, Calle’s petition to the Second Circuit targeted only the BIA’s refusal to remand.

Core Issues:

Whether the BIA abused its discretion by (i) overlooking material evidence establishing Calle’s prima-facie eligibility for military PIP and (ii) misapprehending USCIS’s jurisdiction during ongoing removal proceedings.
What standard the BIA must apply when evaluating motions to remand that rest upon newly available relief rather than reconsideration of an existing application.

2. Summary of the Judgment

The Second Circuit granted Calle’s petition, vacated the BIA’s decision, and remanded for further proceedings. The Court held that the BIA:

Acted arbitrarily by ignoring documentary proof (birth certificate, sworn statement, military ID) establishing Calle’s parent-child relationship with an active-duty servicemember, and thus failed to assess realistically whether PIP was “reasonably likely.”
Misstated the law by asserting that USCIS could adjudicate a PIP request while removal proceedings remain pending—a legal error that tainted its discretionary balancing.

Consequently, the BIA must re-evaluate both the prima-facie and discretionary aspects of Calle’s motion under the correct legal framework, recognizing that without remand or termination USCIS lacks jurisdiction to grant PIP.

3. Analysis

3.1 Precedents Cited and Their Influence

Li Yong Cao v. DOJ, 421 F.3d 149 (2d Cir. 2005) – Established that motions to remand based on new evidence are judged under the substantive standards governing motions to reopen, and that denials are reviewed for abuse of discretion. The Second Circuit relied on this to frame its review and to define “abuse of discretion.”
INS v. Abudu, 485 U.S. 94 (1988) – Outlined three grounds permitting the BIA to deny a motion to reopen/remand: lack of prima-facie eligibility, absence of new material evidence, or negative discretionary factors. The Court measured the BIA’s reasoning against these benchmarks.
Abu Hasirah v. DHS, 478 F.3d 474 (2d Cir. 2007) – Confirmed that a legal misapprehension also constitutes abuse of discretion. The panel invoked this when faulting the BIA’s misunderstanding of USCIS jurisdiction.
In re L-O-G-, 21 I.&N.Dec. 413 (B.I.A. 1996) – Provides the “reasonable likelihood” test for remands seeking new relief. The Second Circuit applied this standard and found the BIA ignored probative evidence relevant to it.
Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008) – Requires showing a “realistic chance” of obtaining the relief; cited to explain Calle’s burden and the BIA’s evaluative duty.

3.2 Legal Reasoning of the Court

Prima-Facie Eligibility: The Court noted that USCIS policy and Congressional endorsement in §1758 of the 2020 NDAA favor granting PIP to parents of active-duty members absent serious adverse factors. Calle’s uncontested familial proof directly met the policy’s threshold. By declaring that Calle “submitted no evidence,” the BIA disregarded record materials and thus acted arbitrarily.
Jurisdictional Misstatement: The BIA’s belief that Calle could pursue PIP before USCIS without remand contradicted DHS practice—while removal proceedings are pending, only ICE (not USCIS) can receive such requests unless proceedings are reopened or terminated. This legal error infected the BIA’s discretionary weighing.
Discretionary Balancing: The BIA leaned on an IJ assessment made four years earlier in a different context (cancellation), emphasizing stale criminal history (15 years old) and arguably improper reliance on non-criminal sexual conduct. The Second Circuit suggested that PIP, which aims at military readiness through family unity, entails a distinct set of equities, warranting fresh balancing.

3.3 Likely Impact of the Decision

Although summary orders are non-precedential under Second Circuit Rule 32.1.1, the opinion is still citable and persuasive. It is likely to influence:

BIA Practice Nationwide: Immigration judges and the BIA must now carefully document consideration of family-unity evidence in the PIP context and avoid boilerplate conclusions.
Clarification of USCIS Jurisdiction: The Court’s explicit correction will deter future misstatements that USCIS can adjudicate PIP while a removal case is pending, ensuring proper channeling through ICE or via remand/termination.
Expedited Relief for Military Families: Practitioners may invoke this decision to argue that remand is the efficient—and sometimes only—route for noncitizen parents of servicemembers to obtain PIP and subsequent adjustment.
Raising the Evidentiary Bar for DHS: DHS will face more rigorous scrutiny if it denies remand without confronting direct evidence supporting PIP eligibility.

4. Complex Concepts Simplified

Parole in Place (PIP): A discretionary grant that treats a noncitizen already inside the U.S. as though they were “paroled” at the border, enabling eligibility for adjustment of status despite illegal entry. “Military PIP” is a USCIS policy favoring close relatives of active-duty personnel.
Motion to Remand vs. Motion to Reopen: In the appellate immigration context, a motion to remand is filed while a direct appeal is pending at the BIA, whereas a motion to reopen is filed after appellate proceedings conclude. Substantively, both ask the tribunal to look at new evidence or new eligibility for relief.
Prima-Facie Case: The minimum set of facts and evidence showing a realistic likelihood of meeting statutory and regulatory requirements for the relief sought.
Abuse of Discretion Standard: A deferential review where the appellate court asks whether the agency’s action was arbitrary, capricious, irrational, or legally erroneous.
Jurisdictional Limitation During Removal: Once DHS places a noncitizen in removal proceedings, USCIS generally loses jurisdiction over most benefits applications unless proceedings are administratively closed, terminated, or remanded.

5. Conclusion

The Second Circuit’s opinion in Calle v. Bondi underscores two critical principles. First, the BIA must grapple with—rather than gloss over—evidence indicating that a petitioner meets the substantive criteria for newly sought relief. Second, the BIA must apply the correct jurisdictional framework when assessing whether remand is necessary; misstatements of agency authority constitute legal error warranting vacatur. Although styled as a non-precedential summary order, the decision meaningfully refines the procedural roadmap for military-family PIP requests and offers persuasive authority that practitioners will wield to secure family unity and, by extension, military readiness. Going forward, any dismissal of a motion to remand for PIP without a detailed evidentiary and discretionary analysis risks being vacated on review.