DHS announced the rollout of Temporary Protected Status for Afghanistan effective May 20, 2022, to November 20, 2023​.  The designation allows eligible Afghan nationals (and individuals having no nationality who last habitually resided in Afghanistan) who have continuously resided in the United States since March 15, 2022, and who have been continuously physically present in the United States since May 20, 2022 to apply for TPS.

In Matter of German Santos, 28 I&N Dec. 552, (BIA 2022), the Board held that: (1) Any fact that establishes or increases the permissible range of punishment for a criminal offense is an “element” for purposes of the categorical approach, even if the term “element” is defined differently under State law. Matter of Laguerre, 28 I&N Dec. 437 (BIA 2022), followed, and (2) Title 35, section 780-113(a)(30) of the Pennsylvania Consolidated Statutes, which punishes possession with intent to deliver (PWID) a controlled substance, is divisible with respect to the identity of the controlled substance possessed, and the respondent's conviction under this statute is one for a controlled substance violation under section 237(a)(2)(B)(i) of the Immigration and Nationality Act.  

Not a great outcome for many noncitizens with a criminal record reflecting this conviction, but this is the nature of the categorical approach versus modified categorical approach word salad.  It does not seem to have been taken to the Third Circuit yet on a petition for review, but I would expect it to be filed within the thirty day period following May 5, 2022, so by June 4, 2022.  Because June 4, 2022, is a Saturday, the alien has until June 6, 2022, to file the petition.  

On May 5, 2022, the Third Circuit issued a decision in an immigration case, Ibrahim v. Att'y Gen., 2022 WL 1449178 (3d Cir. May 5, 2022) (not precedential).  The decision shows the importance of clearly laying out one's grounds for an appeal to the Board of Immigration Appeals.  Here, this particular panel of the Third Circuit cited the following: 

“We do not, however, apply this [exhaustion] principle in a draconian fashion.” Lin v. Att’y Gen., 543 F.3d 114, 121 (3d Cir. 2008). “As this Court has recognized, ‘so long as an immigration petitioner makes some effort, however insufficient, to place the Board on notice of a straightforward issue being raised on appeal, a petitioner is deemed to have exhausted [his] administrative remedies.’” Joseph v. Att’y Gen., 465 F.3d 123, 126 (3d Cir. 2006) (quoting Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005)).

However, the Court seemingly failed to apply that liberal take on the exhaustion principle since the Respondent did indeed notify the Board that Third Circuit law should apply to his case and not the Fifth Circuit case that the immigration judge in his case had applied.  The Third Circuit states that because "nowhere did he [Ibrahim] criticize, or even comment upon, the IJ’s inclusion of an addendum of law based on Fifth Circuit precedent," his case has a fatal deficiency.  Thus no jurisdiction and Ibrahim's petition for review was dismissed.