2005-2009 BIA Precedent Cases
(ID 3661) Matter of MARTINEZ ESPINOZA, 25 I&N Dec. 118 (BIA 2009) (1) An alien may be rendered inadmissible under section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2006), on the basis of a conviction for possession or use of drug paraphernalia. (2) An alien who is inadmissible under section 212(a)(2)(A)(i)(II) of the Act based on a drug paraphernalia offense may qualify for a waiver of inadmissibility under section 212(h) of the Act if that offense “relates to a single offense of simple possession of 30 grams or less of marijuana.”
(ID 3660) Matter of MORENO-ESCOBOSA, 25 I&N Dec. 114 (BIA 2009) (1) The date of an alien’s plea agreement, rather than the date of sentencing, is controlling in determining whether the alien is eligible for a waiver under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994). (2) The decision of the United States Court of Appeals for the Ninth Circuit in Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009), does not invalidate 8 C.F.R. § 1212.3 (2009), so as to preclude an alien who seeks to waive a deportation ground from establishing eligibility for section 212(c) relief.
(ID 3659) Matter of YAURI, 25 I&N Dec. 103 (BIA 2009) (1) With a narrow exception not applicable to this case, the United States Citizenship and Immigration Services (“USCIS”) has exclusive jurisdiction to adjudicate an arriving alien’s application for adjustment of status under 8 C.F.R. § 245.2(a)(1) (2009) and agrees that it retains jurisdiction to adjudicate the application even where an unexecuted administratively final order of removal remains outstanding. (2) The Board of Immigration Appeals generally lacks authority to reopen the proceedings of aliens under final orders of exclusion, deportation, or removal who seek to pursue relief over which the Board and the Immigration Judges have no jurisdiction, especially where reopening is sought simply as a mechanism to stay the final order while the collateral matter is resolved by the agency or court having jurisdiction to do so. (3) With regard to untimely or number-barred motions to reopen, the Board will not generally exercise its discretion to reopen proceedings sua sponte for an arriving alien to pursue adjustment of status before the USCIS.
(ID 3658) Matter of CARRILLO, 25 I&N Dec. 99 (BIA 2009) In determining whether an alien whose status was adjusted pursuant to section 1 of the Cuban Refugee Adjustment Act of November 1, 1966, Pub. L. No. 89-732, 80 Stat. 1161, is removable as an alien who has been convicted of a crime involving moral turpitude committed within 5 years after the alien’s “date of admission,” the admission date is calculated according to the rollback provision of section 1, rather than the date adjustment of status was granted.
(ID 3657) Matter of GARCIA-GARCIA, 25 I&N Dec. 93 (BIA 2009) (1) An Immigration Judge has authority under section 236(a)(2)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a)(2)(A) (2006), and 8 C.F.R. § 1236.1(d)(1) (2009) to review and consider whether to modify the conditions of release imposed on an alien by the Department of Homeland Security (“DHS”). (2) Where the respondent filed an application with the Immigration Judge to ameliorate the terms of release within 7 days of his release from custody by the DHS, the Immigration Judge had jurisdiction to review and modify the condition placed on the respondent’s release that he participate in the Intensive Supervision Appearance Program.
(ID 3656) Matter of SILITONGA, 25 I&N Dec. 89 (BIA 2009) Under 8 C.F.R. §§ 245.2(a)(1) and 1245.2(a)(1)(ii) (2009), Immigration Judges have no jurisdiction to adjudicate an application filed by an arriving alien seeking adjustment of status, with the limited exception of an alien who has been placed in removal proceedings after returning to the United States pursuant to a grant of advance parole to pursue a previously filed application.
(ID 3655) Matter of G-D-M-, 25 I&N Dec. 82 (BIA 2009) An alien who entered the United States pursuant to a crewman’s visa for the purpose of obtaining employment as a crewman is statutorily ineligible for cancellation of removal under section 240A(c)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(c)(1) (2006). Matter of Goncalves, 10 I&N Dec. 277 (BIA 1963), followed.
(ID 3654) Matter of EVRA, 25 I&N Dec. 79 (BIA 2009) The conduct underlying an alien’s arrest and incarceration does not constitute “fault” within the meaning of section 240(b)(5)(C)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C)(ii) (2006), which provides that an order of removal issued at a hearing conducted in absentia may be rescinded if the alien was in Federal or State custody at the time of the scheduled hearing and the failure to appear was “through no fault of the alien.”
(ID 3653) Matter of A-M-, 25 I&N Dec. 66 (BIA 2009) (1) Notwithstanding the heading of section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (2006), which only refers to nonpermanent residents, a lawful permanent resident who qualifies as a battered spouse may be eligible to apply for cancellation of removal under section 240A(b)(2) of the Act. (2) Given the nature and purpose of the relief of cancellation of removal for battered spouses under section 240A(b)(2) of the Act, such factors as an alien’s divorce from an abusive spouse, remarriage, and previous self-petition for relief based on the abusive marriage are relevant in determining whether an application for that relief should be granted in the exercise of discretion.
(ID 3652) Matter of LAMUS, 25 I&N Dec. 61 (BIA 2009) A motion to reopen to apply for adjustment of status based on a marriage entered into after the commencement of removal proceedings may not be denied under the fifth factor enumerated in Matter of Velarde, 23 I&N Dec. 253 (BIA 2002), based on the mere fact that the Government has filed an opposition to the motion, without regard to the merit of that opposition.
(ID 3651) Matter of BULNES, 25 I&N Dec. 57 (BIA 2009) An alien’s departure from the United States while under an outstanding order of deportation or removal issued in absentia does not deprive the Immigration Judge of jurisdiction to entertain a motion to reopen to rescind the order if the motion is premised upon lack of notice.
(ID 3650) Matter of LUJAN, 25 I&N Dec. 53 (BIA 2009) The Board of Immigration Appeals lacks jurisdiction to review an appeal by the Department of Homeland Security of an Immigration Judge’s decision to vacate an expedited removal order after a claimed status review hearing pursuant to 8 C.F.R. § 1235.3(b)(5)(iv) (2009), at which the Immigration Judge determined the respondent to be a United States citizen.
(ID 3649) Matter of LOPEZ, 25 I&N Dec. 49 (BIA 2009) An applicant for Temporary Protected Status may seek de novo review by an Immigration Judge in removal proceedings, regardless of whether all appeal rights before the Department of Homeland Security have been exhausted. Matter of Barrientos, 24 I&N Dec. 100 (BIA 2007), clarified.
(ID 3648) Matter of WERNER, 25 I&N Dec. 45 (BIA 2009) (1) The Attorney General has not delegated authority to Immigration Judges, under 8 C.F.R. § 1236.1(d) (2009), to redetermine the conditions of custody imposed by the Department of Homeland Security with respect to aliens who have not been issued and served with a Notice to Appear (Form I-862) in relation to removal proceedings pursuant to 8 C.F.R. Part 1240 (2009). (2) An alien admitted to the United States pursuant to the Visa Waiver Program who has not been served with a Notice to Appear pursuant to 8 C.F.R. Part 1240 is not entitled to a custody hearing before an Immigration Judge under 8 C.F.R. § 1236.1(d). Matter of Gallardo, 21 I&N Dec. 210 (BIA 1996), superseded.
(ID 3647) Matter of BARCENAS, 25 I&N Dec. 40 (BIA 2009) (1) An alien who willfully and knowingly makes a false representation of birth in the United States on a passport application is inadmissible under section 212(a)(6)(C)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(ii) (2006), for making a false representation of United States citizenship. (2) The respondent, who was convicted of violating 18 U.S.C. § 1542 (2006) for falsely representing that she was born in the United States on an application for a passport, is removable under section 237(a)(1)(A) of the Act, 8 U.S.C. § 1227(a)(1)(A) (2006), as an alien who was inadmissible at the time of her adjustment of status under section 212(a)(6)(C)(ii) of the Act.
(ID 3646) Matter of WANG, 25 I&N Dec. 28 (BIA 2009) The automatic conversion and priority date retention provisions of the Child Status Protection Act, Pub L. No. 107-208, 116 Stat. 927 (2002), do not apply to an alien who ages out of eligibility for an immigrant visa as the derivative beneficiary of a fourth-preference visa petition, and on whose behalf a second-preference petition is later filed by a different petitioner. (ID 3645) Matter of CARDIEL, 25 I&N Dec. 12 (BIA 2009) A conviction for receipt of stolen property under section 496(a) of the California Penal Code, with a sentence of imprisonment of at least 1 year, categorically qualifies as a receipt of stolen property aggravated felony conviction under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2006).
(ID 3644) Matter of A-T-, 25 I&N Dec. 4 (BIA 2009) (1) Requests for asylum or withholding of removal premised on past persecution related to female genital mutilation must be adjudicated within the framework set out by the Attorney General in Matter of A-T-, 24 I&N Dec. 617 (A.G. 2008). (2) Once past persecution on account of an enumerated ground is shown, a presumption is triggered that there would be future harm on the basis of the original claim or, in other words, on account of the same statutory ground. (3) An applicant for asylum or withholding should clearly indicate what enumerated ground(s) he or she is relying upon in making a claim, including the exact delineation of any particular social group to which the applicant claims to belong.
(ID 3643) COMPEAN, BANGALY & J-E-C-, 25 I&N Dec. 1 (A.G. 2009) The Attorney General vacated the decision in Matter of Compean, Bangaly & J-E-C-, 24 I&N Dec. 710 (A.G. 2009), and pending the outcome of a rulemaking process, directed the Board of Immigration Appeals and the Immigration Judges to continue to apply the previously established standards for reviewing motions to reopen based on claims of ineffective assistance of counsel.
(ID 3642) Matter of GUZMAN-GOMEZ, 24 I&N Dec. 824 (BIA 2009) (1) The terms “child” and “parent” defined at section 101(c) of the Immigration and Nationality Act, 8 U.S.C. § 1101(c) (2006), do not ncompass stepchildren and stepparents. (2) A person born outside the United States cannot derive United States citizenship under section 320(a) of the Act, 8 U.S.C. § 1431(a) (2006), by virtue of his or her relationship to a nonadoptive stepparent.
(ID 3641) Matter of CARDENAS ABREU, 24 I&N Dec. 795 (BIA 2009) A pending late-reinstated appeal of a criminal conviction, filed pursuant to section 460.30 of the New York Criminal Procedure Law, does not undermine the finality of the conviction for purposes of the immigration laws.
(ID3640) Matter of HASHMI, 24 I&N Dec. 785 (BIA 2009) (1) An alien’s unopposed motion to continue ongoing removal proceedings to await the adjudication of a pending family-based visa petition should generally be granted if approval of the visa petition would render him prima facie eligible for adjustment of status.
Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), followed. (2) In determining whether good cause exists to continue such proceedings, a variety of factors may be considered, including, but not limited to: (1) the Department of Homeland Security’s response to the motion to continue; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of status; (4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and any other relevant procedural factors.
(ID 3639) Matter of MARTINEZ-MONTALVO, 24 I&N Dec. 778 (BIA 2009) Under 8 C.F.R. §§ 245.2(a)(1) and 1245.2(a)(1)(ii) (2008), Immigration Judges have no jurisdiction to adjudicate an application filed by an arriving alien seeking adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended, with the limited exception of an alien who has been placed in removal proceedings after returning to the United States pursuant to a grant of advance parole to pursue a previously filed application. Matter of Artigas, 23 I&N Dec. 99 (BIA 2001), superseded.
(ID 3638) Matter of Gabriel ALMANZA-Arenas, 24 I&N Dec. 771 (BIA 2009) (1) An alien whose application for relief from removal was filed after the May 11, 2005, effective date of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 231 (“REAL ID Act”), has the burden to prove that he satisfies the applicable eligibility requirements and merits a favorable exercise of discretion under section 240(c)(4)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(4)(A) (2006), and must provide corroborating evidence requested by the Immigration Judge pursuant to section 240(c)(4)(B), unless it cannot be reasonably obtained (2) An alien whose application for cancellation of removal under section 240A(b)(1) of the Act, 8 U.S.C. § 1229b(b)(1) (2006), is governed by the provisions of the REAL ID Act, and who has been convicted of an offense under a divisible criminal statute, has the burden to establish that the conviction was not pursuant to any part of the statute that reaches conduct involving moral turpitude, including the burden to produce corroborating conviction documents, such as a transcript of the criminal proceedings, as reasonably requested by the Immigration Judge. Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir. 2007), distinguished. (3) An alien who has been convicted of a crime involving moral turpitude has been “convicted of an offense under” section 237(a)(2) of the Act, 8 U.S.C. § 1227(a)(2)(2006), and is therefore ineligible for cancellation of removal under section 240A(b)(1)(C), regardless of his status as an arriving alien or his eligibility for a petty offense exception under section 212(a)(2)(A)(ii)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (2006).
(ID 3637) Matter of ZORILLA-VIDAL, 24 I&N Dec. 768 (BIA 2009) Outside the jurisdiction of the United States Court of Appeals for the Ninth Circuit, a conviction for criminal solicitation under a State’s general purpose solicitation statute is a conviction for a violation of a law “relating to a controlled substance” under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2006), where the record of conviction reflects that the crime solicited is an offense relating to a controlled substance. Matter of Beltran, 20 I&N Dec. 521 (BIA 1992), reaffirmed. Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997), followed in jurisdiction only.
(ID 3636) Matter of M-A-S-, 24 I&N Dec. 762 (BIA 2009) An Immigration Judge may order an alien detained until departure as a condition of a grant of voluntary departure.
(ID 3635) Matterer of Leroinex LOUISSAINT, 24 I&N Dec. 754 (BIA 2009) (1) The categorical approach for determining if a particular crime involves moral turpitude set forth in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), requires the traditional categorical analysis, which was used by the United States Supreme Court in Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), and includes an inquiry into whether there is a “realistic probability” that the statute under which the alien was convicted would be applied to reach conduct that does not involve moral turpitude. (2) A conviction for burglary of an occupied dwelling in violation of section 810.02(3)(a) of the Florida Statutes is categorically a conviction for a crime involving moral turpitude. Matter of M-, 2 I&N Dec. 721 (BIA; A.G. 1946), distinguished.
(ID 3634) Matter of Jose AGUILAR-AQUINO, 24 I&N Dec. 747 (BIA 2009) (1) “Custody,” as the term is used in the regulation at 8 C.F.R. § 1236.1(d)(1) (2008) relating to requests for amelioration of the terms of release from custody, requires actual physical restraint or confinement within a given space. (2) The respondent, who requested “amelioration of the terms of release” from an Immigration Judge following his release from detention by the Department of Homeland Security with conditions requiring an electronic monitoring device and home confinement, was “released from custody” within the meaning of 8 C.F.R. § 1236.1(d)(1). (3) The Immigration Judge lacked jurisdiction to consider the respondent’s request for amelioration of the terms of his release under 8 C.F.R. § 1236.1(d)(1) where the respondent had been “released from custody” more than 7 days prior to his request.
(ID 3633) Matter of Rosenberg, 24 I&N Dec. 744 (BIA 2009) (1) A claim by an attorney who is currently suspended from practice before the United States Court of Appeals for the Ninth Circuit that he is in good standing before the California State Bar is not a basis to set aside an order of the Board of Immigration Appeals suspending him from practice before the Board, the Immigration Courts, and the Department of Homeland Security. (2) It is not in the interest of justice to set aside the Board’s immediate suspension order where the attorney failed to object to the Ninth Circuit Appellate Commissioner’s Report and Recommendation and is therefore not likely to prevail on the merits of the attorney discipline case, given the heavy burden of proof under 8 C.F.R. § 1003.103(b)(2) (2008).
(ID 3632)
Matter of COMPEAN, BANGALY & J-E-C-, 24 I&N Dec. 710 (A.G. 2009)
(1) Aliens in removal proceedings have a statutory privilege to retain private counsel at no expense to the Government.
(2) Aliens in removal proceedings have no right to counsel, including Government-appointed counsel, under the Sixth Amendment of the Constitution because the Sixth Amendment applies only to criminal proceedings and removal proceedings are civil in nature.
(3) Aliens in removal proceedings also have no right to counsel, including Government-appointed counsel, under the Fifth Amendment. Although the Fifth Amendment applies to removal proceedings, its guarantee of due process does not include a general right to counsel, or a specific right to effective assistance of counsel, and is violated only by state action, namely, action that can be legally attributed to the Government. Lawyers privately retained by aliens in removal proceedings are not state actors for due process purposes. Accordingly, there is no Fifth Amendment right to effective assistance of counsel in removal proceedings. To the extent the Board’s decisions in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), and Matter of Assaad, 23 I&N Dec. 553 (BIA 2003), are inconsistent with this conclusion, those decisions are overruled.
(4) Although the Constitution and the immigration laws do not entitle an alien in removal proceedings to relief for his lawyer’s mistakes, the Department of Justice may, as a matter of administrative grace, reopen removal proceedings where an alien shows that he was prejudiced by the actions of private counsel.
(5) There is a strong public interest in ensuring that a lawyer’s deficiencies do not affirmatively undermine the fairness and accuracy of removal proceedings. At the same time, there is a strong public interest in the expeditiousness and finality of removal proceedings. On balance, these interests justify allowing the Board to reopen removal proceedings in the extraordinary case where a lawyer’s deficient performance likely changed the outcome of an alien’s initial removal proceedings. In addition, they call for a set of standards and requirements that will allow the Board to resolve most claims expeditiously and on the basis of an alien’s motion to reopen and accompanying on counsel’s allegedly deficient performance is, in each case, committed to the discretion of the Board or the immigration judge.
(6) The deficient performance of counsel claim extends only to the conduct of a lawyer, an accredited representative, or a non-lawyer that the alien reasonably but erroneously believed to be a lawyer who was retained to represent the alien in the proceedings.
(7) An alien who seeks to reopen his removal proceedings based on deficient performance of counsel bears the burden of establishing (i) that his lawyer’s failings were egregious; (ii) that in cases where the alien moves to reopen beyond the applicable time limit, he exercised due diligence in discovering and seeking to cure his lawyer’s alleged deficient performance; and (iii) that he suffered prejudice from the lawyer’s errors, namely, that but for the deficient performance, it is more likely than not that the alien would have been entitled to the ultimate relief he was seeking.
(8) An alien who seeks to reopen his removal proceedings based on deficient performance of counsel must submit a detailed affidavit setting forth the facts that form the basis of the deficient performance of counsel claim. He also must attach to his motion five documents or sets of documents: (i) a copy of his agreement, if any, with the lawyer whose performance he alleges was deficient; (ii) a copy of a letter to his former lawyer specifying
the lawyer’s deficient performance and a copy of the lawyer’s response, if any; (iii) a completed and signed complaint addressed to, but not necessarily filed with, the appropriate State bar or disciplinary authority; (iv) a copy of any document or evidence, or an affidavit summarizing any testimony, that the alien alleges the lawyer failed to submit previously; and (v) a statement by new counsel expressing a belief that the performance of former counsel fell below minimal standards of professional competence. If any of these documents is unavailable, the alien must explain why. If any of these documents is missing rather than nonexistent, the alien must summarize the document’s contents in his affidavit. Matter of Lozada, superseded.
(9) The Board’s discretion to reopen removal proceedings on the basis of a lawyer’s deficient performance is not limited to conduct that occurred during the agency proceedings. The Board may reopen on the basis of deficient performance that occurred subsequent to the entry of a final order of removal if the standards established for a deficient performance of counsel claim are satisfied.
(ID 3631)
Matter of SILVA-TREVINO, 24 I&N Dec. 687 (A.G. 2008)
(1) To determine whether a conviction is for a crime involving moral turpitude, immigration judges and the Board of Immigration Appeals should: (1) look to the statute of conviction under the categorical inquiry and determine whether there is a “realistic probability” that the State or Federal criminal statute pursuant to which the alien was convicted would be applied to reach conduct that does not involve moral turpitude; (2) if the categorical inquiry does not resolve the question, engage in a modified categorical inquiry and examine the record of conviction, including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, and the plea transcript; and (3) if the record of conviction is inconclusive, consider any additional evidence deemed necessary or appropriate to resolve accurately the moral turpitude question.
(2) It is proper to make a categorical finding that a defendant’s conduct involves moral turpitude when that conduct results in conviction on the charge of intentional sexual contact with a person the defendant knew or should have known was a child.
(3) To qualify as a crime involving moral turpitude for purposes of the Immigration and Nationality Act, a crime must involve both reprehensible conduct and some degree of scienter, whether specific intent, deliberateness, willfulness, or recklessness.
(ID 3630)
Matter of F-P-R-, 24 I&N Dec. 681 (BIA 2008)
For purposes of determining if an alien’s application for asylum was timely filed within
1 year of arrival in the United States pursuant to section 208(a)(2)(B) of the Immigration and
Nationality Act, 8 U.S.C. § 1158(a)(2)(B) (2006), the term “last arrival” in 8 C.F.R. § 1208.4(a)(2)(ii) (2008) refers to the alien’s most recent arrival in the United States from
a trip abroad.
(ID 3629)
Matter of C-R-C-, 24 I&N Dec. 677 (BIA 2008)
In absentia removal proceedings were reopened where the respondent overcame the presumption of delivery of a Notice to Appear that was sent by regular mail by submitting an affidavit stating that he did not receive the notice and that he has continued to reside at the address to which it was sent, as well as other circumstantial evidence indicating that he had an incentive to appear, and by exercising due diligence in promptly seeking to redress the situation by obtaining counsel and requesting reopening of the proceedings. Dominguez v. United States Attorney General, 284 F.3d 1258 (11th Cir. 2002), distinguished.
(ID 3628)
Matter of M-R-A-, 24 I&N Dec. 665 (BIA 2008)
(1) Where a Notice to Appear or Notice of Hearing is properly addressed and sent by regular mail according to normal office procedures, there is a presumption of delivery, but it is weaker than the presumption that applies to documents sent by certified mail. Matter of Grijalva, 21 I&N Dec. 27 (BIA 1995), distinguished.
(2) When an Immigration Judge adjudicates a respondent’s motion to reopen to rescind an in absentia order of removal based on a claim that a notice sent by regular mail to the most recent address provided was not received, all relevant evidence submitted to overcome the weaker presumption of delivery must be considered, including but not limited to factors such as affidavits from the respondent and others who are knowledgeable about whether notice was received, whether due diligence was exercised in seeking to redress the situation, any prior applications for relief that would indicate an incentive to appear, and the respondent’s prior appearance at immigration proceedings, if applicable.
(3) The respondent overcame the presumption of delivery of a Notice of Hearing that was
sent by regular mail where he submitted affidavits indicating that he did not receive the
notice, had previously filed an asylum application and appeared for his first removal
hearing, and exercised due diligence in promptly obtaining counsel and requesting
reopening of the proceedings.
(ID 3627)
Matter of Federiso, 24 I&N Dec. 661 (BIA 2008)
To be eligible for a waiver of removal under section 237(a)(1)(H)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(H)(i) (2006), an alien must establish a qualifying relationship to a living relative.
(ID 3626)
Matter of Andres ARMENDAREZ-Mendez, 24 I&N Dec. 646 (BIA 2008)
Pursuant to 8 C.F.R. § 1003.2(d) (2008), the Board of Immigration Appeals lacks authority to reopen removal, deportation, or exclusion proceedings–whether on motion of an alien or sua sponte–if the alien has departed the United States after those administrative proceedings have been completed.
(ID 3625)
Matter of M-F-W- & L-G-, 24 I&N Dec. 633 (BIA 2008)
(1) An act that thwarts the goals of China’s family planning policy, such as removing an intrauterine device (“IUD”) or failing to attend a mandatory gynecological appointment, may constitute “resistance” to the policy.
(2) The insertion of an IUD does not rise to the level of harm necessary to constitute “persecution,” absent some aggravating circumstances.
(3) Generally, where the insertion or reinsertion of an IUD is carried out as part of a routine medical procedure, an alien will not be able to establish the required nexus, i.e., that the procedure was or would be because of her resistance to China’s family planning policy.
(ID 3624)
Matter of R-A-, 24 I&N Dec. 629 (A.G. 2008)
The Attorney General lifted the stay previously imposed on the Board of Immigration Appeals and remanded the case for reconsideration of the issues presented with respect to asylum claims based on domestic violence.
(ID 3623)
Matter of GUADARRAMA, 24 I&N Dec. 625 (BIA 2008)
An alien who has made a false claim of citizenship may be considered a person who is not of good moral character, but the catch-all provision of section 101(f) of the Immigration and Nationality Act, 8 U.S.C. § 1101(f) (2006), does not automatically mandate such a finding.
(ID 3622)
Matter of A-T-, 24 I&N Dec. 617 (A.G. 2008)
The Attorney General vacated the decision of the Board of Immigration Appeals and remanded the record for reconsideration of questions relating to the respondent’s eligibility for withholding of removal pursuant to 8 C.F.R. § 1208.16(b)(1) (2008) based on her claim that she has been subjected to female genital mutilation.
(ID 3621)
Matter of NWOZUZU, 24 I&N Dec. 609 (BIA 2008)
To obtain derivative citizenship under former section 321(a) of the Immigration and Nationality Act, 8 U.S.C. § 1432(a) (1994), an alien must acquire the status of an alien lawfully admitted for permanent residence while he or she is under the age of 18 years.
(ID 3620)
Matter of SAYSANA, 24 I&N Dec. 602 (BIA 2008)
(1) The language of section 236(c)(1) of the Immigration and Nationality Act, 8 U.S.C.§ 1226(c)(1) (2006), does not support limiting the non-DHS custodial setting solely to criminal custody tied to the basis for detention under that section.
(2) The respondent is subject to mandatory detention following his release from non-DHS custody resulting from his 2005 arrest for failure to register as a sex offender, even though that arrest did not lead to a conviction.
(ID 3619)
Matter of RAMIREZ-VARGAS, 24 I&N Dec. 599 (BIA 2008)
A parent’s period of residence in the United States cannot be imputed to a child for purposes of calculating the 7 years of continuous residence required to establish eligibility for cancellation of removal under section 240A(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a)(2) (2006).
(ID 3618)
Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008)
(1) The respondent, a young Honduran male, failed to establish that he was a member of a particular social group of “persons resistant to gang membership,” as the evidence failed to establish that members of Honduran society, or even gang members themselves, would perceive those opposed to gang membership as members of a social group.
(2) Because membership in a criminal gang cannot constitute membership in a particular social group, the respondent could not establish that he was a member of a particular social group of “young persons who are perceived to be affiliated with gangs” based on the incorrect perception by others that he is such a gang member.
(ID 3617)
Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008)
Neither Salvadoran youth who have been subjected to recruitment efforts by the MS-13 gang and who have rejected or resisted membership in the gang based on their own personal, moral, and religious opposition to the gang’s values and activities nor the family members of such Salvadoran youth constitute a “particular social group.”
(ID 3616)
Matter of ROTIMI, 24 I&N Dec. 567 (BIA 2008)
An alien has not “lawfully resided” in the United States for purposes of qualifying for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2006), during any periods in which the alien was an applicant for asylum or for adjustment of status and lacked any other basis on which to claim lawful residence.
(ID 3615)
EAC, INC., 24 I&N Dec. 563 (BIA 2008) (Accreditation)
(1) All accredited representatives on the staff of a recognized organization must have a broad knowledge of immigration law and procedure, even if the organization only intends to provide limited services through one or more partially accredited representatives.
(2) In order to show that a proposed accredited representative has the broad knowledge and experience in immigration law and procedure required by 8 C.F.R. § 1292.2(d) (2008), a recognized organization should submit the individual’s resume, letters of recommendation, and evidence of immigration training completed, including detailed descriptions of the topics addressed.
(ID 3614)
EAC, INC., 24 I&N Dec. 556 (BIA 2008) (Recognition)
(1) The process of recognition is designed to evaluate the qualifications of only those nonprofit organizations that provide knowledgeable legal assistance to low-income aliens in matters involving immigration law and procedure.
(2) In order to establish that it has adequate knowledge of immigration law and procedure, an organization seeking recognition must have sufficient access to legal resources, which may include electronic or internet access, as well as resources provided by a law library.
(3) An organization seeking recognition must show that it has either a local attorney who is on the staff, offering pro bono services, or providing consultation under a formal arrangement; a fully accredited representative; or a partially accredited representative with access to additional expertise.
(4) A recognized organization that does not offer a full range of immigration legal services or whose staff is not sufficiently experienced to handle more complex immigration issues must have the ability to discern when it should direct aliens to seek other legal assistance.
(ID 3613)
Matter of GONZALEZ-ZOQUIAPAN, 24 I&N Dec. 549 (BIA 2008)
(1) A single act of soliciting prostitution on one’s own behalf does not fall within section 212(a)(2)(D)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(D)(ii) (2006), which provides for the inadmissibility of an alien who “procured . . . prostitutes or persons for the purpose of prostitution.”
(2) The respondent’s conviction for disorderly conduct relating to prostitution in violation of section 647(b) of the California Penal Code does not render him inadmissible under section 212(a)(2)(D)(ii) of the Act.
(ID 3612)
Matter of HINES, 24 I&N Dec. 554 (BIA 2008)(1) Under Jamaican law, the sole means of “legitimation” of a child born out of wedlock is the marriage of the child’s natural parents. Matter of Clahar, 18 I&N Dec. 1 (BIA 1981), overruled.
(2) The respondent was born in Jamaica of natural parents who never married, and therefore his paternity was not established “by legitimation” so as to disqualify him from deriving United States citizenship pursuant to former section 321(a)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1432(a)(3) (1988), through his mother’s naturalization in 1991.
(ID 3611)
Matter of J-S-, 24 I&N Dec. 520 (A.G. 2008)
(1) The spouse of a person who has been physically subjected to a forced abortion orsterilization procedure is not per se entitled to refugee status under section 601(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-689, codified at section 101(a)(42) ofthe Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2000). The holdings to the contrary in Matter of S-L-L-, 24 I&N Dec. 1 (BIA 2006); Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997), overruled.
(2) Persons who have not physically undergone a forced abortion or sterilization proceduremay still qualify as a refugee on account of a well-founded fear of persecution of beingforced to undergo such a procedure, or on account of persecution or a well-founded fearof persecution for failure or refusal to undergo such a procedure or for other resistance toa coercive population control program, or on other grounds enumerated in the Immigrationand Nationality Act.
(ID 3610)
Matter of VELAZQUEZ-HERRERA, 24 I&N Dec. 503 (BIA 2008)
(1) For purposes of the ground of removal set forth at section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2000), the term “crime of child abuse” means any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a person under 18 years old or that impairs such a person’s physical or mental well-being, including sexual abuse or exploitation.
(2) Whether an alien is removable on the basis of a conviction for a “crime of child abuse” is determined by the elements of the alien’s offense, as reflected in the statutory definition of the crime or admissible portions of the conviction record.
(ID 3609)
Matter of V-K-, 24 I&N Dec. 500 (BIA 2008)
The Board of Immigration Appeals reviews de novo an Immigration Judge’s prediction or finding regarding the likelihood that an alien will be tortured, because it relates to whether the ultimate statutory requirement for establishing eligibility for relief from removal has been met and is therefore a mixed question of law and fact, or a question of judgment.
(ID 3608)
Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008)
(1) Under 8 C.F.R. § 1003.1(d)(3) (2008), the Board of Immigration Appeals should defer to the factual findings of an Immigration Judge, unless they are clearly erroneous, but it retains independent judgment and discretion, subject to applicable governing standards, regarding pure questions of law and the application of a particular standard of law to those facts.
(2) In determining whether established facts are sufficient to meet a legal standard, such as “well-founded fear,” the Board has the authority to weigh the evidence in a manner different from that accorded by the Immigration Judge, or to conclude that the foundation for the Immigration Judge’s legal conclusions was insufficient or otherwise not supported by the evidence of record
(ID 3607)
Matter of RIVERA-VALENCIA, 24 I&N Dec. 484 (BIA 2008)
A judgment of guilt that has been entered by a general court-martial of the United States Armed Forces qualifies as a “conviction” within the meaning of section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2000).
Matter of KODWO,19 I&N Dec. 290 (BIA 1985), modified. (ID 3606)
While a court order remains the preferred method of establishing the
dissolution of a customary tribal marriage under Ghanaian law,
affidavits executed by the heads of household, i.e., the fathers of the
couple, that meet specified evidentiary requirements may be sufficient
to establish a divorce for immigration purposes. Matter of Kumah,19 I&N
Dec. 290 (BIA 1985), modified.
Matter of S-K-, 24 I&N Dec. 475 (BIA 2008) (ID 3605)
(1) Section 691(b) of the Consolidated Appropriations Act, 2008,
Division J of Pub. L. No. 110-161, 121 Stat. 1844, 2365 (enacted Dec.
26, 2007), provides that for purposes of section 212(a)(3)(B) of the
Immigration and Nationality Act, 8 U.S.C.A. § 1182(a)(3)(B) (West 2005),
certain groups, including the Chin National Front, “shall not be
considered to be a terrorist organization on the basis of any act or
event occurring before the date of enactment of this section.”
(2) The Attorney General’s remand in Matter of S-K-, 24 I&N Dec. 289
(A.G. 2007), does not affect the precedential nature of the conclusions
of the Board of Immigration Appeals in Matter of S-K-, 23 I&N Dec. 936
(BIA 2006), regarding the applicability and interpretation of the
material support provisions in section 212(a)(3)(B)(iv)(VI) of the Act.
Matter of GONZALEZ-MURO, 24 I&N Dec. 472 (BIA 2008) (ID 3604)
A denaturalized alien who committed crimes while a lawful permanent
resident and concealed them during the naturalization application
process is removable on the basis of the crimes, even though the alien
was a naturalized citizen at the time of conviction. Costello v. INS,
376 U.S. 120 (1964), distinguished.
Matter of BAIRES-Larios, 24 I&N Dec. 467 (BIA 2008) (ID 3603)
A child who has satisfied the statutory conditions of former section
321(a) of the Immigration and Nationality Act, 8 U.S.C. § 1432(a)
(1988), before the age of 18 years has acquired United States
citizenship, regardless of whether the naturalized parent acquired legal
custody of the child before or after the naturalization.
Matter of S-A-K- and H-A-H-, 24 I&N Dec. 464 (BIA 2008) (ID 3602)
A mother and daughter from Somalia who provided sufficient evidence of
past persecution in the form of female genital mutilation with
aggravated circumstances are eligible for a grant of asylum based on
humanitarian grounds pursuant to 8 C.F.R § 1208.13(b)(1)(iii)(A) (2007),
regardless of whether they can establish a well-founded fear of future
persecution. Matter of Chen, 20 I&N Dec. 16 (BIA 1989), followed
Matter of CABRERA, 24 I&N Dec. 459 (BIA 2008) (ID 3601)
The imposition of costs and surcharges in the criminal sentencing
context constitutes a form of “punishment” or “penalty” for purposes of
establishing that an alien has suffered a “conviction” within the
meaning of section 101(a)(48)(A) of the Immigration and Nationality Act,
8 U.S.C. § 1101(a)(48)(A) (2000).
Matter of ARUNA, 24 I&N Dec. 452 (BIA 2008) (ID 3600)
Absent controlling precedent to the contrary, a State law misdemeanor
offense of conspiracy to distribute marijuana qualifies as an
“aggravated felony” under section 101(a)(43)(B) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000), where its elements
correspond to the elements of the Federal felony offense of conspiracy
to distribute an indeterminate quantity of marijuana, as defined by 21
U.S.C. §§ 841(a)(1), (b)(1)(D), and 846 (2000 & Supp. IV 2004).
In Matter of Aruna, 24 I&N Dec. 452 (BIA 2008), the BIA held that
distribtion of marijuana is an aggravated felon even where there is
neither evidence of the quantity nor that the defendant received
remueration for the distribution. The BIA rejected the arugment that
since distribution of a small amount of marijuana without remuneration
is a misdemenaor under federal law, that the government must either
prove remuneration or that the quantity was not small.
Matter of D-I-M-, 24 I&N Dec. 448 (BIA 2008) (ID 3599)
(1) When evaluating an application for asylum, the Immigration Judge
must make a specific finding that the applicant has or has not suffered
past persecution based on a statutorily enumerated ground and then apply
the regulatory framework at 8 C.F.R. § 1208.13(b)(1) (2007).
(2) If the applicant has established past persecution, there is a
presumption of a well-founded fear of persecution in the future and the
burden shifts to the Department of Homeland Security to prove by a
preponderance of the evidence that there are changed country conditions,
or that the applicant could avoid future persecution by relocating, and
that it would be reasonable to do so under all of the circumstances.
Matter of Kelly, 24 I&N Dec. 446 (BIA 2008) (ID 3598)
(1) If an Immigration Judge includes an attachment to a decision,
particular care must be taken to insure that a complete record is
preserved.
(2) An attachment to an Immigration Judge’s oral decision should be
individualized with the respondent’s name, the alien registration
number, and the date of the decision, and it should be appended to the
written memorandum summarizing the oral decision, which should reflect
that there is an attachment.
Matter of ANIFOWOSHE, 24 I&N Dec. 442 (BIA 2008)(ID 3597)
An alien child who was adopted under the age of 18, and whose natural
sibling was subsequently adopted by the same adoptive parent or parents
while under the age of 16, may qualify as a “child” within the meaning
of section 101(b)(1)(E) of the Immigration and Nationality Act, 8
U.S.C.A. § 1101(b)(1)(E) (West 2008), even if the child’s adoption
preceded that of the younger sibling.
Matter of GARCIA-MADRUGA, 24 I&N Dec. 436 (BIA 2008) (ID 3596)
(1) A “theft offense” within the definition of an aggravated felony in
section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. §
1101(a)(43)(G) (2000), ordinarily requires the taking of, or exercise of
control over, property without consent and with the criminal intent to
deprive the owner of the rights and benefits of ownership, even if such
deprivation is less than total or permanent. Matter of V-Z-S-, 22 I&N
Dec. 1338 (BIA 2000), clarified.
(2) The respondent’s welfare fraud offense in violation of section
40-6-15 of the General Laws of Rhode Island is not a “theft offense”
under section 101(a)(43)(G) of the Act.
Matter of I-S- & C-S-, 24 I&N Dec. 432 (BIA 2008) (ID 3595)
When an Immigration Judge issues a decision granting an alien’s
application for withholding of removal under section 241(b)(3) of the
Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3) (2000), without a
grant of asylum, the decision must include an explicit order of removal.
Matter of MARTINEZ-ZAPATA, 24 I&N Dec. 424 (BIA 2007) (ID 3594)
(1) Any fact (including a fact contained in a sentence enhancement) that
serves to increase the maximum penalty for a crime and that is required
to be found by a jury beyond a reasonable doubt, if not admitted by the
defendant, is to be treated as an element of the underlying offense, so
that a conviction involving the application of such an enhancement is a
conviction for the enhanced offense. Matter of Rodriguez-Cortes, 20 I&N
Dec. 587 (BIA 1992), superseded.
(2) The exception under section 212(h) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(h) (2000), for an alien convicted of a
single offense of simple possession of 30 grams or less of marijuana
does not apply to an alien whose conviction was enhanced by virtue of
his possession of marijuana in a “drug-free zone,” where the enhancement
factor increased the maximum penalty for the underlying offense and had
to be proved beyond a reasonable doubt to a jury under the law of the
convicting jurisdiction. Matter of Moncada, 24 I&N Dec. 62 (BIA 2007),
clarified.
Matter of THOMAS, 24 I&N Dec. 416 (BIA 2007) (ID 3593)
The respondent’s 2003 Florida offense involving the simple possession of
marijuana does not qualify as an “aggravated felony” by virtue of its
correspondence to the Federal felony of “recidivist possession,” even
though it was committed after a prior “conviction” for a “drug,
narcotic, or chemical offense” became “final” within the meaning of 21
U.S.C. § 844(a) (2000), because the respondent’s conviction for that
2003 offense did not arise from a State proceeding in which his status
as a recidivist drug offender was either admitted or determined by a
judge or jury. Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007),
followed.
Matter of CARACHURI-ROSENDO, 24 I&N Dec. 382 (BIA 2007) (ID 3592)
(1) Decisional authority from the Supreme Court and the controlling
Federal circuit court of appeals is determinative of whether a State
drug offense constitutes an “aggravated felony” under section
101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. §
1101(a)(43)(B) (2000), by virtue of its correspondence to the Federal
felony offense of “recidivist possession,” as defined by 21 U.S.C. §
844(a) (2000). Matter of Yanez, 23 I&N Dec. 390 (BIA 2002), followed.
(2) Controlling precedent of the United States Court of Appeals for the
Fifth Circuit dictates that the respondent’s Texas conviction for
alprazolam possession qualifies as an “aggravated felony” conviction by
virtue of the fact that the underlying alprazolam possession offense was
committed after the respondent’s prior State “conviction” for a “drug,
narcotic, or chemical offense” became “final” within the meaning of 21
U.S.C. § 844(a).
(3) Absent controlling authority regarding the “recidivist possession”
issue, an alien’s State conviction for simple possession of a controlled
substance will not be considered an aggravated felony conviction on the
basis of recidivism unless the alien’s status as a recidivist drug
offender was either admitted by the alien or determined by a judge or
jury in connection with a prosecution for that simple possession
offense.
Matter of LEMUS, 24 I&N Dec. 373 (BIA 2007) (ID 3591)
1) An alien who is unlawfully present in the United States for a period
of 1 year, departs the country, and then seeks admission within 10 years
of the date of his departure from the United States, is inadmissible
under section 212(a)(9)(B)(i)(II) of the Immigration and Nationality
Act, 8 U.S.C. § 1182(a)(2)(B)(i)(II) (2000), even if the alien’s
departure was not made pursuant to an order of removal and was not a
voluntary departure in lieu of being subject to removal proceedings or
at the conclusion of removal proceedings.
(2) Adjustment of status under section 245(i) of the Act, 8 U.S.C. §
1255(i) (2000), is unavailable to an alien who is inadmissible under
section 212(a)(9)(B)(i)(II) of the Act.
Matter of BRIONES, 24 I&N Dec. 355 (BIA 2007) (ID 3590)
(1) Section 212(a)(9)(C)(i)(I) of the Immigration and Nationality Act, 8
U.S.C.§ 1182(a)(9)(C)(i)(I) (2000), covers recidivist immigration
violators, so to be inadmissible under that section, an alien must
depart the United States after accruing an aggregate period of “unlawful
presence” of more than 1 year and thereafter reenter, or attempt to
reenter, the United States without being admitted.
(2) Adjustment of status under section 245(i) of the Act, 8 U.S.C. §
1255(i) (2000), is not available to an alien who is inadmissible under
section 212(a)(9)(C)(i)(I) of the Act.
Matter of C-W-L-, 24 I&N Dec. 346 (BIA 2007) (ID 3589)
An alien who is subject to a final order of removal is barred by both
statute and regulation from filing an untimely motion to reopen removal
proceedings to submit a successive asylum application under section
208(a)(2)(D) of the Immigration and Nationality Act, 8 U.S.C. §
1158(a)(2)(D) (2000), based on changed personal circumstances.
Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007) (ID 3588)
(1) In order to be considered a particularly serious crime under section
241(b)(3)(B)(ii) of the Immigration and Nationality Act, 8 U.S.C. §
1231(b)(3)(B)(ii) (2000), an offense need not be an aggravated felony
under section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (2000 &
Supp. IV 2004).
(2) Once the elements of an offense are found to potentially bring it
within the ambit of a particularly serious crime, all reliable
information may be considered in determining whether the offense
constitutes a particularly serious crime, including but not limited to
the record of conviction and sentencing information.
Matter of SINGH, 24 I&N Dec. 331 (BIA 2007) (ID 3587)
There is no conflict between section 216(c)(4) of the Immigration and
Nationality Act, 8 U.S.C. § 1186a(c)(4) (2000), and its implementing
regulation at 8 C.F.R. § 1216.5(e)(1) (2007) where both provide the same
start date for the circumstances to be considered in determining a
conditional permanent resident’s application for an extreme hardship
waiver and only the statute provides an end date for the relevant
period.
Matter of S-I-K-, 24 I&N Dec. 324 (BIA 2007) (ID 3586)
An alien convicted of conspiracy is removable as an alien convicted of
an aggravated felony within the meaning of sections 101(a)(43)(M)(i) and
(U) of the Immigration and Nationality Act, 8 U.S.C. §§
1101(a)(43)(M)(i) and (U) (2000), where the substantive crime that was
the object of the conspiracy was an offense that involved “fraud or
deceit” and where the potential loss to the victim or victims exceeded
$10,000.
Matter of BABAISAKOV, 24 I&N Dec. 306 (BIA 2007) (ID 3585)
(1) A single ground for removal may require proof of a conviction tied
to the statutory elements of a criminal offense, as well as proof of an
additional fact or facts that are not tied to the statutory elements of
any such offense.
(2) When a removal charge depends on proof of both the elements leading
to a conviction and some nonelement facts, the nonelement facts may be
determined by means of evidence beyond the limited “record of
conviction” that may be considered by courts employing the “categorical
approach,” the “modified categorical approach,” or a comparable
“divisibility analysis,” although the record of conviction may also be a
suitable source of proof, depending on the circumstances.
(3) Section 101(a)(43)(M)(i) of the Immigration and Nationality Act, 8
U.S.C. § 1101(a)(43)(M)(i) (2000), which defines the term “aggravated
felony” to mean “an offense that involves fraud or deceit in which the
loss to the victim or victims exceeds $10,000,” depends on proof of both
a conviction having an element of fraud or deceit and the nonelement
fact of a loss exceeding $10,000 that is tied to the conviction.
(4) Because the phrase “in which the loss to the victim or victims
exceeds $10,000” is not tied to an element of the fraud or deceit
offense, the loss determination is not subject to the limitations of the
categorical approach, the modified categorical approach, or a
divisibility analysis and may be proved by evidence outside the record
of conviction, provided that the loss is still shown to relate to the
conduct of which the person was convicted and, for removal purposes, is
proven by clear and convincing evidence.
(5) The Immigration Judge erred in declining to consider a presentence
investigation report as proof of victim loss because of his mistaken
belief that he was restricted to consideration of the respondent’s
record of conviction.
Matter of A-T-, 24 I&N Dec. 296 (BIA 2007) (ID 3584)
(1) Because female genital mutilation (“FGM”) is a type of harm that
generally is inflicted only once, the procedure itself will normally
constitute a “fundamental change in circumstances” such that an asylum
applicant no longer has a well-founded fear of persecution based on the
fear that she will again be subjected to FGM.
(2) Unlike forcible sterilization, a procedure that also is performed
only once but has lasting physical and emotional effects, FGM has not
been specifically identified as a basis for asylum within the definition
of a “refugee” under section 101(a)(42) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(42) (2000), so FGM does not qualify
as “continuing persecution.” Matter of Y-T-L-, 23 I&N Dec. 601 (BIA
2003), distinguished.
Matter of JEAN-JOSEPH, 24 I&N Dec. 294 (BIA 2007) (ID 3583)
Where an attorney who was suspended from practice before the Board of
Immigration Appeals, the Immigration Courts, and the Department of
Homeland Security pending the final disposition of his attorney
discipline proceeding sought reinstatement because he had been
reinstated to the Florida Bar, but he had practiced before the Miami
Immigration Court while under the Board’s immediate suspension order,
his motion was denied, and he was instead suspended for 120 days, twice
the recommended discipline in the Notice of Intent To Discipline.
Matter of Krovonos, 24 I&N Dec. 292 (BIA 2007) (ID 3582)
A motion for reinstatement to practice filed by an attorney who was
expelled from practice before the Board of Immigration Appeals, the
Immigration Courts, and the Department of Homeland Security as a result
of his conviction for immigration-related fraud, but who was reinstated
to practice law in New York, was denied because he failed to show that
he possessed the moral and professional qualifications to be reinstated
to practice and that his reinstatement would not be detrimental to the
administration of justice.
Matter of S-K-, 24 I&N Dec. 289 (AG 2007) (ID 3581)
The Attorney General remanded the case for the Board of Immigration
Appeals to consider if further proceedings are appropriate in light of
the February 20, 2007, determination of the Secretary of Homeland
Security that section 212(a)(3)(B)(iv)(VI) of the Immigration and
Nationality Act, 8 U.S.C.A. § 1182(a)(3)(B)(iv)(VI) (West 2005), shall
not apply with respect to material support provided to the Chin National
Front/Chin National Army by an alien who satisfies certain specified
criteria.
Matter of SHAH, 24 I&N Dec. 282 (BIA 2007) (ID 3580)
(1) An attorney who knowingly makes a false statement of material fact
or law or willfully misleads any person concerning a material and
relevant matter relating to a case is subject to discipline.
(2) It is in the public interest to discipline an attorney who knowingly
and willfully misled the United States Citizenship and Immigration
Services by presenting an improperly obtained certified Labor Condition
Application under his signature in support of a nonimmigrant worker
petition.
Matter of A-K, 24 I&N Dec. 275 (BIA 2007) (ID 3579)
An alien may not establish eligibility for asylum or withholding of
removal based solely on fear that his or her daughter will be harmed by
being forced to undergo female genital mutilation upon returning to the
alien’s home country.
Matter of CHAVEZ-Martinez, 24 I&N Dec. 272 (BIA 2007) (ID 3578)
(1) An alien seeking to reopen proceedings to establish that a
conviction has been vacated bears the burden of proving that the
conviction was not vacated solely for immigration purposes.
(2) Where the respondent presented no evidence to prove that his
conviction was not vacated solely for immigration purposes, he failed to
meet his burden of showing that his motion to reopen should be granted.
Matter of Jara RIERO and Jara ESPINOL, 24 I&N Dec. 267 (BIA 2007) (ID
3577)
An alien seeking to establish eligibility for adjustment of status under
section 245(i) of the Immigration and Nationality Act, 8 U.S.C. §
1255(i) (2000), on the basis of a marriage-based visa petition must
prove that the marriage was bona fide at its inception in order to show
that the visa petition was “meritorious in fact” pursuant to 8 C.F.R. §
1245.10(a)(3) (2007).
Matter of J-Y-C, 24 I&N Dec. 260 (BIA 2007) (ID 3576)
(1) Under section 101(a)(3) of the REAL ID Act of 2005, Div. B of Pub.
L. No. 109-13, 119 Stat. 302, 303 (to be codified at section
208(b)(1)(B)(iii) of the Immigration and Nationality Act, 8 U.S.C. §
1158(b)(1)(B)(iii)), a trier of fact may, considering the totality of
the circumstances, base a credibility finding on an asylum applicant’s
demeanor, the plausibility of his account, and inconsistencies in
statements, without regard to whether they go to the heart of the asylum
claim.
(2) The Immigration Judge properly considered the totality of the
circumstances in finding that the respondent lacked credibility based on
his demeanor, his implausible testimony, the lack of corroborating
evidence, and his inconsistent statements, some of which did not relate
to the heart of his claim.
Matter of S-Y-G-, 24 I&N Dec. 247 (BIA 2007) (ID 3575)
In her motion to reopen proceedings to pursue her asylum claim, the
applicant did not meet the heavy burden to show that her proffered
evidence is material and reflects “changed circumstances arising in the
country of nationality” to support the motion where the documents
submitted reflect general birth planning policies in her home province
that do not specifically show any likelihood that she or similarly
situated Chinese nationals will be persecuted as a result of the birth
of a second child in the United States.
Matter of SOLON, 24 I&N Dec. 239 (BIA 2007) (ID 3574)
The offense of assault in the third degree in violation of section
120.00(1) of the New York Penal Law, which requires both specific intent
and physical injury, is a crime involving moral turpitude.
Matter of SEJAS, 24 I&N Dec. 236 (BIA 2007) (ID 3573)
The offense of assault and battery against a family or household member
in violation of section 18.2-57.2 of the Virginia Code is not
categorically a crime involving moral turpitude.
Matter of ESCOBAR, 24 I&N Dec. 231 (BIA 2007) (ID 3572)
A parent’s lawful permanent resident status cannot be imputed to a child
for purposes of calculating the 5 years of lawful permanent residence
required to establish eligibility for cancellation of removal under
section 240A(a)(1) of the Immigration and Nationality Act, 8 U.S.C. §
1229b(a)(1) (2000).
Matter of R-D-, 24 I&N Dec. 221 (BIA 2007) (ID 3571)
(1) An alien who leaves the United States and is admitted to Canada to
seek refugee status has made a departure from the United States.
(2) An alien returning to the United States after the denial of an
application for refugee status in Canada is seeking admission into the
United States and is therefore an arriving alien under 8 C.F.R. §
1001.1(q) (2007).
Matter of GONZALEZ-SILVA, 24 I&N Dec. 218 (BIA 2007) (ID 3570)
An alien whose conviction precedes the effective date of section
237(a)(2)(E) of the Immigration and Nationality Act, 8 U.S.C. §
1227(a)(2)(E) (2000), is not “convicted of an offense under” that
section and therefore is not barred from establishing eligibility for
cancellation of removal by section 240A(b)(1)(C) of the Act, 8 U.S.C. §
1229b(b)(1)(C) (2000).
Matter of J-B-N- & S-M-, 24 I&N Dec. 208 (BIA 2007) (ID 3569)
Under section 101(a)(3) of the REAL ID Act of 2005, Div. B of Pub. L.
No. 109-13, 119 Stat. 302, 303, in mixed motive asylum cases, an
applicant must prove that race, religion, nationality, membership in a
particular social group, or political opinion was or will be at least
one central reason for the claimed persecution.
Matter of ABOSI, 24 I&N Dec. 204 (BIA 2007) (ID 3568)
A returning lawful permanent resident seeking to overcome a ground of
inadmissibility is not required to apply for adjustment of status in
conjunction with a waiver of inadmissibility under section 212(h) of the
Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2000).
Matter of J-H-S-, 24 I&N Dec. 196 (BIA 2007) (ID 3567)
A person who fathers or gives birth to two or more children in China may
qualify as a refugee if he or she establishes that the births are a
violation of family planning policies that would be punished by local
officials in a way that would give rise to a well-founded fear of
persecution.
Matter of J-W-S-, 24 I&N Dec. 185 (BIA 2007) (ID 3566)
(1) The evidence of record did not demonstrate that the Chinese
Government has a national policy of requiring forced sterilization of a
parent who returns with a second child born outside of China.
(2) Although some sanctions may be imposed pursuant to local family
planning policies in China for the birth of a second child abroad, the
applicant failed to provide evidence that such sanctions in Fujian
Province or Changle City would rise to the level of persecution.
Matter of GARCIA, 24 I&N Dec. 179 (BIA 2007) (ID 3565)
An application for special rule cancellation of removal is a continuing
one, so an applicant can continue to accrue physical presence until the
issuance of a final administrative decision. Matter of Ortega-Cabrera,
23 I&N Dec. 793 (BIA 2005), reaffirmed; Cuadra v. Gonzales, 417 F.3d 947
(8th Cir. 2005), followed in jurisdiction only.
Matter of T-Z-, 24 I&N Dec. 163 (BIA 2007) (ID 3564)
(1) An abortion is forced by threats of harm when a reasonable person
would objectively view the threats for refusing the abortion to be
genuine, and the threatened harm, if carried out, would rise to the
level of persecution.
(2) Nonphysical forms of harm, such as the deliberate imposition of
severe economic disadvantage or the deprivation of liberty, food,
housing, employment, or other essentials of life, may amount to
persecution.
(3) When an Immigration Judge denies asylum solely in the exercise of
discretion and then grants withholding of removal, 8 C.F.R. § 1208.16(e)
(2006) requires the Immigration Judge to reconsider the denial of asylum
to take into account factors relevant to family unification.
Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007) (ID 3563)
(1) In determining that an application for asylum is frivolous, the
Immigration Judge must address the question of frivolousness separately
and make specific findings that the applicant deliberately fabricated
material elements of the asylum claim.
(2) Before the Immigration Judge makes a finding that an asylum
application is frivolous, the applicant must be given sufficient
opportunity to account for any discrepancies or implausible aspects of
the claim.
(3) The Immigration Judge must provide cogent and convincing reasons for
determining that a preponderance of the evidence supports a
frivolousness finding, taking into account any explanations by the
applicant for discrepancies or implausible aspects of the claim.
Matter of TOBAR-LOBO, 24 I&N Dec. 143 (BIA 2007) (ID 3562)
Willful failure to register by a sex offender who has been previously
apprised of the obligation to register, in violation of section
290(g)(1) of the California Penal Code, is a crime involving moral
turpitude.
Matter of M-D-, 24 I&N Dec. 138 (BIA 2007) (ID 3561)
(1) When a case is remanded to an Immigration Judge for completion of
the appropriate background checks, the Immigration Judge is required to
enter a final order granting or denying the requested relief.
(2) Although an Immigration Judge may not reconsider the prior decision
of the Board of Immigration Appeals when a case is remanded for
background checks, the Immigration Judge reacquires jurisdiction over
the proceedings and may consider additional evidence regarding new or
previously considered relief if it meets the requirements for reopening
of the proceedings.
Matter of K-R-Y- and K-C-S-, 24 I&N Dec. 133 (BIA 2007) (ID 3560)
(1) The North Korean Human Rights Act of 2004, Pub. L. No. 108-333, 118
Stat. 1287, which provides that North Koreans cannot be barred from
eligibility for asylum on account of any legal right to citizenship they
may enjoy under the Constitution of South Korea, does not apply to North
Koreans who have availed themselves of the right to citizenship in South
Korea.
(2) The respondents, natives of North Korea who became citizens of South
Korea, are precluded from establishing eligibility for asylum as to
North Korea on the basis of their firm resettlement in South Korea.
Matter of KOCHLANI, 24 I&N Dec. 128 (BIA 2007) (ID 3559)
The offense of trafficking in counterfeit goods or services in violation
of 18 U.S.C. § 2320 (2000) is a crime involving moral turpitude.
Matter of KOTLIAR-, 24 I&N Dec. 124 (BIA 2007) (ID 3558)
(1) An alien who has been apprehended at home while on probation for
criminal convictions is subject to mandatory detention under section
236(c)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1226(c)(1)
(2000), regardless of the reason for the most recent criminal custody,
provided it can be ascertained from the facts that he was released from
criminal custody after October 8, 1998, the expiration date of the
Transition Period Custody Rules.
(2) An alien need not be charged with the ground that provides the basis
for mandatory detention under section 236(c)(1) of the Act in order to
be considered an alien who “is deportable” on that ground.
Matter of W-C-B-, 24 I&N Dec. 118 (BIA 2007) (ID 3557)
(1) An Immigration Judge has no authority to reinstate a prior order of
deportation or removal pursuant to section 241(a)(5) of the Immigration
and Nationality Act, 8 U.S.C. § 1231(a)(5) (2000).
(2) An alien subject to reinstatement of a prior order of deportation or
removal pursuant to section 241(a)(5) of the Act has no right to a
hearing before an Immigration Judge.
(3) The Immigration Judge did not err in terminating removal proceedings
as improvidently begun where the respondent was subject to reinstatement
of his prior order of deportation.
Matter of GERTSENSHTEYN, 24 I&N Dec. 111 (BIA 2007) (ID 3556)
(1) The categorical approach to determining whether a criminal offense
satisfies a particular ground of removal does not apply to the inquiry
whether a violation of 18 U.S.C. § 2422(a) was committed for “commercial
advantage” and thus qualifies as an aggravated felony under section
101(a)(43)(K)(ii) of the Immigration and Nationality Act, 8 U.S.C. §
1101(a)(43)(K)(ii) (2000), where “commercial advantage” is not an
element of the offense and the evidence relating to that issue is not
ordinarily likely to be found in the record of conviction.
(2) The respondent’s offense was committed for “commercial advantage”
where it was evident from the record of proceeding, including the
respondent’s testimony, that he knew that his employment activity was
designed to create a profit for the prostitution business for which he
worked.
Matter of ACOSTA HIDALGO, 24 I&N Dec. 103 (BIA 2007) (ID 3555)
(1) Because the Board of Immigration Appeals and the Immigration Judges
lack jurisdiction to adjudicate applications for naturalization, removal
proceedings may only be terminated pursuant to 8 C.F.R. § 1239.2(f)
(2006) where the Department of Homeland Security has presented an
affirmative communication attesting to an alien’s prima facie
eligibility for naturalization. Matter of Cruz, 15 I&N Dec. 236 (BIA
1975), reaffirmed.
(2) An adjudication by the Department of Homeland Security on the merits
of an alien’s naturalization application while removal proceedings are
pending is not an affirmative communication of the alien’s prima facie
eligibility for naturalization that would permit termination of
proceedings under 8 C.F.R. § 1239.2(f). (ID 3554)
Matter of William Osmin BARRIENTOS, 24 I&N Dec. 100 (BIA 2007)
Section 244(b)(5)(B) of the Immigration and Nationality Act, 8 U.S.C. §
1254(b)(5)(B) (2000), permits an alien to assert his right to Temporary
Protected Status in removal proceedings, even if his application has
previously been denied by the Administrative Appeals Unit.
Matter of Mahesh Nenumal TEJWANI, 24 I&N Dec. 97 (BIA 2007) (ID 3553)
The offense of money laundering in violation of section 470.10(1) of the
New York Penal Law is a crime involving moral turpitude.
Matter of Bozena ZMIJEWSKA, 24 I&N Dec. 87 (BIA 2007) (ID 3552)
(1) The Board of Immigration Appeals lacks authority to apply an
“exceptional circumstances” or other general equitable exception to the
penalty provisions for failure to depart within the time period afforded
for voluntary departure under section 240B(d)(1) of the Immigration and
Nationality Act, 8 U.S.C.A. § 1229c(d)(1) (West Supp. 2006).
(2) An alien has not voluntarily failed to depart the United States
under section 240B(d)(1) of the Act when the alien, through no fault of
his or her own, was unaware of the voluntary departure order or was
physically unable to depart within the time granted.
Matter of Rodolfo AVILA-PEREZ, 24 I&N Dec. 78 (BIA 2007) (ID 3551)
(1) Section 201(f)(1) of the Immigration and Nationality Act, 8 U.S.C. §
1151(f)(1) (Supp. II 2002), which allows the beneficiary of an immediate
relative visa petition to retain his status as a “child” after he turns
21, applies to an individual whose visa petition was approved before the
August 6, 2002, effective date of the Child Status Protection Act, Pub.
L. No. 107-208, 116 Stat. 927 (2002), but who filed an application for
adjustment of status after that date.
(2) The respondent, whose visa petition was approved before August 6,
2002, and who filed his adjustment of status application after that
date, retained his status as a child, and therefore an immediate
relative, because he was under the age of 21 when the visa petition was
filed on his behalf.
Matter of A-M-E & J-G-U-, 24 I&N Dec. 69 (BIA 2007) (ID 3550)
(1) Factors to be considered in determining whether a particular social
group exists include whether the group’s shared characteristic gives the
members the requisite social visibility to make them readily
identifiable in society and whether the group can be defined with
sufficient particularity to delimit its membership.
(2) The respondents failed to establish that their status as affluent
Guatemalans gave them sufficient social visibility to be perceived as a
group by society or that the group was defined with adequate
particularity to constitute a particular social group.
Matter of MONCADA-Servellon, 24 I&N Dec. 62 (BIA 2007) (ID 3549)
The exception to deportability under section 237(a)(2)(B)(i) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2000), for
an alien convicted of possessing 30 grams or less of marijuana for his
own use does not apply to an alien convicted under a statute that has an
element requiring that possession of the marijuana be in a prison or
other correctional setting.
Matter of O-S-G-, 24 I&N Dec. 56 (BIA 2006) (ID 3548)
A motion to reconsider a decision of the Board of Immigration Appeals
must include the following: (1) an allegation of material factual or
legal errors in the prior decision that is supported by pertinent
authority;(2) in the case of an affirmance without opinion (“AWO”), a
showing that the alleged errors and legal arguments were previously
raised on appeal and a statement explaining how the Board erred in
affirming the Immigration Judge’s decision under the AWO regulations;
(3) if there has been a change in law, a reference to the relevant
statute, regulation, or precedent and an explanation of how the outcome
of the Board’s decision is materially affected by the change.
Matter of TRUONG, 24 I&N Dec. 52 (BIA 2006) (ID 3547)
(1) Under the attorney discipline regulations, a disbarment order issued
against a practitioner creates a rebuttable presumption of professional
misconduct, which can only be rebutted by a showing that the underlying
disciplinary proceeding resulted in a deprivation of due process, that
there was an infirmity of proof establishing the misconduct, or that
discipline would result in grave injustice.
(2) Where the respondent was disbarred by the highest court of the State
of New York, based in large part on his misconduct in a State court
action, and where none of the exceptions to discipline are applicable,
suspension from practice before the Board of Immigration Appeals, the
Immigration Courts, and the Department of Homeland Security for 7 years
is an appropriate sanction.
Matter of S-B-, 24 I&N Dec. 42 (BIA 2006) (ID 3545)
(1) The provisions regarding credibility determinations enacted in
section 101(a)(3) of the REAL ID Act of 2005, Div. B of Pub. L. No.
109-13, 119 Stat. 231, 303 (effective May 11, 2005) (to be codified at
section 208(b)(1)(B)(iii) of the Immigration and Nationality Act, 8
U.S.C. § 1158(b)(1)(B)(iii)), only apply to applications for asylum,
withholding, and other relief from removal that were initially filed on
or after May 11, 2005, whether with an asylum officer or an Immigration
Judge.
(2) Where the respondent filed his applications for relief with an
asylum officer prior to the May 11, 2005, effective date of section
208(b)(1)(B)(iii) of the Act, but renewed his applications in removal
proceedings before an Immigration Judge subsequent to that date, the
provisions of section 208(b)(1)(B)(iii) were not applicable to
credibility determinations made in adjudicating his applications.
Matter of GUERRA, 24 I&N Dec. 37 (BIA 2006) (ID 3544)
(1) In a custody redetermination under section 236(a) of the Immigration
and Nationality Act, 8 U.S.C. § 1226(a) (2000), where an alien must
establish to the satisfaction of the Immigration Judge that he or she
does not present a danger to others, a threat to the national security,
or a flight risk, the Immigration Judge has wide discretion in deciding
the factors that may be considered.
(2) In finding that the respondent is a danger to others, the
Immigration Judge properly considered evidence that the respondent had
been criminally charged in an alleged controlled substance trafficking
scheme, even if he had not actually been convicted of a criminal
offense.
Matter of JURADO, 24 I&N Dec. 29 (BIA 2006) (ID 3543)
(1) An alien need not be charged and found inadmissible or removable on
a ground specified in section 240A(d)(1)(B) of the Immigration and
Nationality Act, 8 U.S.C. § 1229b(d)(1)(B) (2000), in order for the
alleged criminal conduct to terminate the alien’s continuous residence
in this country.
(2) Retail theft in violation of title18, section 3929(a)(1) of the
Pennsylvania Consolidated Statutes is a crime involving moral turpitude.
(3) Unsworn falsification to authorities in violation of title18,
section 4904(a) of the Pennsylvania Consolidated Statutes is a crime
involving moral turpitude.
Matter of ROBLES, 24 I&N Dec. 22 (BIA 2006) (ID 3542)
(1) When the Attorney General overrules or reverses only one holding in
a precedent decision of the Board of Immigration Appeals and expressly
declines to consider any alternative holding in the case, the remaining
holdings retain their precedential value.
(2) Misprision of a felony in violation of 18 U.S.C. § 4 (2000) is a
crime involving moral turpitude. Matter of Sloan, 12 I&N Dec. 840 (A.G.
1968; BIA 1966), overruled in part.
(3) Under the “stop-time” rule in section 240A(d)(1)(B) of the
Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1)(B) (2000), an
offense is deemed to end an alien’s continuous residence as of the date
of its commission, even if the offense was committed prior to the
enactment of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546.
Matter of Perez, 22 I&N Dec. 689 (BIA 1999), reaffirmed. (ID 3541)
Matter of S-L-L-, 24 I&N Dec. 1 (BIA 2006)
(1) An alien whose spouse was forced to undergo an abortion or
sterilization can establish past persecution on account of political
opinion and qualify as a refugee within the definition of section
101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. §
1101(a)(42) (2000), but only if the alien was, in fact, opposed to the
spouse’s abortion or sterilization and was legally married at the time
of the abortion or sterilization. Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA
1997), reaffirmed and clarified.
(2) Unmarried applicants claiming persecution related to a partner’s
coerced abortion or sterilization may qualify for asylum if they
demonstrate that they have been persecuted for “other resistance to a
coercive population control program” within the meaning of section
101(a)(42) of the Act.
Matter of DIAZ-RUACHO, 24 I&N Dec. 47 (BIA 2006) ID 3546
An alien who fails to post the voluntary departure bond required by
section 240B(b)(3)of the Immigration and Nationality Act, 8 U.S.C. §
1229c(b)(3) (2000), is not subject to penalties for failure to depart
within the time period specified for voluntary departure.
LIADOV, 23 I&N Dec. 990 (BIA 2006) (ID 3540)
(1) Neither the Immigration and Nationality Act nor the regulations
grant the Board of Immigration Appeals authority to extend the 30-day
time limit for filing an appeal to the Board.
(2) Although the Board may certify a case to itself under 8 C.F.R. §
1003.1(c) (2006) where exceptional circumstances are present, a short
delay by an overnight delivery service is not a rare or extraordinary
event that would warrant consideration of an untimely appeal on
certification.
Guang Li FU, 23 I&N Dec. 985 (BIA 2006) (ID 3539)
Section 237(a)(1)(H) of the Immigration and Nationality Act, 8 U.S.C. §
1227(a)(1)(H)(2000), authorizes a waiver of removability under section
237(a)(1)(A) based on charges of inadmissibility at the time of
admission under section 212(a)(7)(A)(i)(I) of the Act, 8 U.S.C. §
1182(a)(7)(A)(i)(I) (2000), for lack of a valid immigrant visa or entry
document, as well as under section 212(a)(6)(C)(i) for fraud or willful
misrepresentation of a material fact, where there was a
misrepresentation made at the time of admission, whether innocent or not
O’CEALLEAGH, 23 I&N Dec. 976 (BIA 2006) (ID 3538)
(1) In order for an offense to qualify for the “purely political
offense” exception to the ground of inadmissibility under section
212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. §
1182(a)(2)(A)(i)(I) (2000), based on an alien’s conviction for a crime
involving moral turpitude, the offense must be completely or totally
“political.”
(2) The respondent is inadmissible where he properly conceded that his
offense, substantively regarded, was not “purely political,” and
where
there was substantial evidence that the offense was not fabricated or
trumped-up and therefore did not qualify from a procedural perspective
as a “purely political offense,” because the circumstances surrounding
his conviction in Northern Ireland for aiding and abetting the murder of
two British corporals reflected a sincere effort to prosecute real
lawbreakers.
SANUDO, 23 I&N Dec. 968 (BIA 2006) (ID 3537)
(1) An alien’s conviction for domestic battery in violation of sections
242 and 243(e)(1) of the California Penal Code does not qualify
categorically as a conviction for a “crime involving moral turpitude”
within the meaning of section 237(a)(2)(A)(ii) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(ii) (2000).
(2) In removal proceedings arising within the jurisdiction of the United
States Court of Appeals for the Ninth Circuit, the offense of domestic
battery in violation of sections 242 and 243(e)(1) of the California
Penal Code does not presently qualify categorically as a “crime of
violence” under 18 U.S.C. § 16 (2000), such that it may be considered
a
“crime of domestic violence” under section 237(a)(2)(E)(i) of the
Act.
Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006), followed.
ROWE, 23 I&N Dec. 962 (BIA 2006) (ID 3536)
(1) Under the laws of Guyana, the sole means of legitimation of a child
born out of wedlock is the marriage of the child’s natural parents.
Matter of Goorahoo, 20 I&N Dec. 782 (BIA 1994), overruled.
(2) Where the respondent was born out of wedlock in Guyana and his
natural parents were never married, his paternity has not been
established by legitimation, so he is not ineligible to obtain
derivative citizenship under former section 321(a)(3) of the Immigration
and Nationality Act, 8 U.S.C. § 1432(a)(3) (1994).
C-A-, as 23 I&N Dec. 951 (BIA 2006) (ID 3535)
(1) The members of a particular social group must share a common,
immutable characteristic, which may be an innate one, such as sex,
color, or kinship ties, or a shared past experience, such as former
military leadership or land ownership, but it must be one that members
of the group either cannot change, or should not be required to change,
because it is fundamental to their individual identities or consciences.
Matter of Acosta, 19 I&N Dec. 211(BIA 1985), followed.
(2) The social visibility of the members of a claimed social group is an
important consideration in identifying the existence of a “particular
social group” for the purpose of determining whether a person qualifies
as a refugee.
(3) The group of “former noncriminal drug informants working against
the
Cali drug cartel” does not have the requisite social visibility to
constitute a “particular social group.”
S-K-, as 23 I&N Dec. 936 (BIA 2006) (ID 3534)
(1) The statutory language of section 212(a)(3)(B) of the Immigration
and Nationality Act, 8 U.S.C.A. § 1182(a)(3)(B) (West 2005), does not
allow a “totality of the circumstances” test to be employed in
determining whether an organization is engaged in terrorist activity, so
factors such as an organization’s purposes or goals and the nature
of
the regime that the organization opposes may not be considered.
(2) Neither an alien’s intent in making a donation to a terrorist
organization nor the intended use of the donation by the recipient is
considered in assessing whether the alien provided “material support” to
a terrorist organization under section 212(a)(3)(B)(iv)(VI) of the Act.
(3) The respondent’s contribution of S$1100 (Singapore dollars) over
an
11-month period to the Chin National Front was sufficiently substantial
to constitute material support to an organization, which despite its
democratic goals and use of force only in self-defense, is defined by
statute as a terrorist organization acting against the Government of
Burma, so the respondent is barred from asylum and withholding of
removal.
Jian An WANG, as 23 I&N Dec. 924 (BIA 2006) (ID 3533)
(1) An alien who entered the United States without inspection is not
eligible for adjustment of status under the Chinese Student Protection
Act of 1992, Pub. L. No. 102-404, 106 Stat. 1969 (“CSPA”).
(2) An alien whose CSPA application for adjustment of status was denied
as a result of the alien’s entry without inspection may not amend or
renew the application in immigration proceedings in conjunction with
section 245(i) of the Immigration and Nationality Act, 8 U.S.C. §
1255(i) (2000).
J-F-F-, 23 I&N Dec. 912 (BIA 2006) (ID 3532)
An alien’s eligibility for deferral of removal under the Convention
Against Torture cannot be established by stringing together a series of
suppositions to show that it is more likely than not that torture will
result where the evidence does not establish that each step in the
hypothetical chain of events is more likely than not to happen.
Raul RODARTE-Roman, 23 I&N Dec. 905 (BIA 2006) (ID 3531)
(1) To be rendered inadmissible for 10 years pursuant to section
212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. §
1182(a)(9)(B)(i)(II) (2000), an alien must depart the United States
after having been unlawfully present in the United States for 1 year or
longer.
(2) Pursuant to sections 301(b)(3) and 309(a) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L.
No. 104-208, 110 Stat. 3009-546, 3009-578, 309-625, no period of an
alien’s presence in the United States prior to April 1, 1997, may be
considered “unlawful presence” for purposes of determining an
alien’s
inadmissibility under section 212(a)(9)(B) of the Act.
C-C-, 23 I&N Dec. 899 (BIA 2006) (ID 3530)
An alien seeking to reopen removal proceedings based on a claim that the
birth of a second child in the United States will result in the alien’s
forced sterilization in China cannot establish prima facie eligibility
for relief where the evidence submitted with the motion and the relevant
country conditions reports do not indicate that Chinese nationals
returning to that country with foreign-born children have been subjected
to forced sterilization in the alien’s home province. Guo v. Ashcroft,
386 F.3d 556 (3d Cir. 2004), distinguished.
Jose Luis OLQUIN-Rufino, 23 I&N Dec. 896 (BIA 2006) (ID 3529)
The offense of possession of child pornography in violation of section
827.071(5) of the Florida Statutes is a crime involving moral turpitude.
Alma Esmeralda BAUTISTA GOMEZ, 23 I&N Dec. 893 (BIA 2006) (ID 3528)
The provision in 8 C.F.R. § 1003.23(b)(3) (2005) that an applicant
for
cancellation of removal under section 240A(b) of the Immigration and
Nationality Act, 8 U.S.C. § 1229b(b) (2000), must demonstrate statutory
eligibility for that relief prior to the service of a notice to appear
applies only to the continuous physical presence requirement and has no
bearing on the issues of qualifying relatives, hardship, or good moral
character.
Francisco Javier VILLARREAL-ZUNIGA, 23 I&N Dec. 886 (BIA 2006) (ID 3527)
An application for adjustment of status cannot be based on an approved
visa petition that has already been used by the beneficiary to obtain
adjustment of status or admission as an immigrant.
Fabricio ALCANTARA-PEREZ, 23 I&N Dec. 882 (BIA 2006) (ID 3526)
(1) When the Board of Immigration Appeals has remanded the record for
completion of background and security checks and new information that
may affect the alien’s eligibility for relief is revealed, the
Immigration Judge has discretion to determine whether to conduct an
additional hearing to consider the new evidence before entering an order
granting or denying relief.
(2) When a proceeding is remanded for background and security checks,
but no new information is presented as a result of those checks, the
Immigration Judge should enter an order granting relief.
Patryk Michal ADAMIAK, 23 I&N Dec. 878 (BIA 2006) (ID 3525)
A conviction vacated pursuant to section 2943.031 of the Ohio Revised
Code for failure of the trial court to advise the alien defendant of the
possible immigration consequences of a guilty plea is no longer a valid
conviction for immigration purposes.
TORRES-GARCIA, 23 I&N Dec. 866 (BIA 2006) (ID 3524)
(1) An alien who reenters the United States without admission after
having previously been removed is inadmissible under section
212(a)(9)(C)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. §
1182(a)(9)(C)(i)(II) (2000), even if the alien obtained the Attorney
General’s permission to reapply for admission prior to reentering
unlawfully.
(2) An alien is statutorily ineligible for a waiver of inadmissibility
under the first sentence of section 212(a)(9)(C)(ii) of the Act unless
more than 10 years have elapsed since the date of the alien’s last
departure from the United States.
V-F-D-, 23 I&N Dec. 859 (BIA 2006) (ID 3523)
A victim of sexual abuse who is under the age of 18 is a “minor” for
purposes of determining whether an alien has been convicted of sexual
abuse of a minor within the meaning of section 101(a)(43)(A) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2000).
COTA-Vargas, 23 I&N Dec. 849 (BIA 2005) (ID 3522)
A trial court’s decision to modify or reduce an alien’s criminal
sentence nunc pro tunc is entitled to full faith and credit by the
Immigration Judges and the Board of Immigration Appeals, and such a
modified or reduced sentence is recognized as valid for purposes of the
immigration law without regard to the trial court’s reasons for
effecting the modification or reduction. Matter of Song, 23 I&N Dec.
173
(BIA 2001), clarified; Matter of Pickering, 23 I&N Dec. 621 (BIA 2003),
distinguished. (ID 3521)
Ramos, 23 I&N Dec. 843 (BIA 2005)
(1) Under the attorney discipline regulations, a disbarment order issued
against a practitioner by the highest court of a State creates a
rebuttable presumption that disciplinary sanctions should follow, which
can only be rebutted upon a showing that the underlying disciplinary
proceeding resulted in a deprivation of due process, that there was an
infirmity of proof establishing the misconduct, or that discipline would
result in injustice.
(2) A practitioner who has been expelled may petition the Board of
Immigration Appeals for reinstatement after 1 year, but such
reinstatement is not automatic and the practitioner must qualify as an
attorney or representative under the regulations.
(3) The Government is not required to show that an attorney has
“appeared” before it, because any attorney is a “practitioner” and
is
therefore subject to sanctions under the attorney discipline regulations
following disbarment.
(4) Where the respondent was disbarred by the Supreme Court of Florida
as a result of his extensive unethical conduct, expulsion from practice
before the Board, the Immigration Courts, and the Department of Homeland
Security is an appropriate sanction.
SMRIKO, 23 I&N Dec. 836 (BIA 2005) (ID 3520)
(1) Removal proceedings may be commenced against an alien who was
admitted to the United States as a refugee under section 207 of the
Immigration and Nationality Act, 8 U.S.C. § 1157 (2000), without prior
termination of the alien’s refugee status.
(2) The respondent, who was admitted to the Unites States as a refugee
and adjusted his status to that of a lawful permanent resident, is
subject to removal on the basis of his convictions for crimes involving
moral turpitude, even though his refugee status was never terminated.
PEREZ VARGAS, 23 I&N Dec. 829 (BIA 2005) (ID 3519)
Immigration Judges have no authority to determine whether the validity
of an alien’s approved employment-based visa petition is preserved
under
section 204(j) of the Immigration and Nationality Act, 8 U.S.C. §
1154(j) (2000), after the alien’s change in jobs or employers.
Matter of E-L-H-, 23 I&N Dec. 814 (BIA 2005) (ID3518)
A precedent decision of the Board of Immigration Appeals applies to all
proceedings involving the same issue unless and until it is modified or
overruled by the Attorney General, the Board, Congress, or a Federal
court. Matter of E-L-H-, 22 I&N Dec. 21 (BIA 1998), reaffirmed.
AVILEZ-Nava, 23 I&N Dec. 799 (BIA 2005) (ID 3517)
(1) Where an alien departed the United States for a period less than
that specified in section 240A(d)(2) of the Immigration and Nationality
Act, 8 U.S.C. § 1229b(d)(2)(2000), and unsuccessfully attempted reentry
at a land border port of entry before actually reentering, physical
presence continued to accrue for purposes of cancellation of removal
under section 240A(b)(1)(A) unless, during that attempted reentry, the
alien was formally excluded or made subject to an order of expedited
removal, was offered and accepted the opportunity to withdraw an
application for admission, or was subjected to some other formal,
documented process pursuant to which the alien was determined to be
inadmissible to the United States.
(2) The respondent’s 2-week absence from the United States did not
break
her continuous physical presence where she was refused admission by an
immigration official at a port of entry, returned to Mexico without any
threat of the institution of exclusion proceedings, and subsequently
reentered without inspection.
ORTEGA-Cabrera, 23 I&N Dec. 793 (BIA 2005) (ID 3516)
(1) Because an application for cancellation of removal under section
240A(b)(1) of the Immigration and Nationality Act, 8 U.S.C. §
1229b(b)(1) (2000), is a continuing one for purposes of evaluating an
alien’s moral character, the period during which good moral character
must be established ends with the entry of a final administrative
decision by the Immigration Judge or the Board of Immigration Appeals.
(2) To establish eligibility for cancellation of removal under section
240A(b)(1) of the Act, an alien must show good moral character for a
period of 10 years, which is calculated backward from the date on which
the application is finally resolved by the Immigration Judge or the
Board.
Matter of A-H-,23 I&N Dec. 774 (A.G. 2005) (ID3515)
(1) The Attorney General denied asylum in the exercise of discretion to
a leader-in-exile of the Islamic Salvation Front of Algeria who was
associated with armed groups that committed widespread acts of
persecution and terrorism in Algeria, because the United States has
significant interests in combating violent acts of persecution and
terrorism, and it is inconsistent with these interests to provide safe
haven to individuals who have connections to such acts of violence.
(2) Terrorist acts committed by the armed Islamist groups in Algeria,
including the bombing of civilian targets and the widespread murders of
journalists and intellectuals on account of their political opinions or
religious beliefs, constitute the persecution of others.
(3) A person who is a leader-in-exile of a political movement may be
found to have “incited, assisted, or otherwise participated in” acts
of
persecution in the home country by an armed group connected to that
political movement where there is evidence indicating that the leader
(1) was instrumental in creating and sustaining the ties between the
political movement and the armed group and was aware of the atrocities
committed by the armed group; (2) used his profile and position of
influence to make public statements that encouraged those atrocities; or
(3) made statements that appear to have condoned the persecution without
publicly and specifically disassociating himself and his movement from
the acts of persecution, particularly if his statements appear to have
resulted in an increase in the persecution.
(4) The phrase “danger to the security of the United States” means
any
nontrivial risk to the Nation’s defense, foreign relations, or economic
interests, and there are “reasonable grounds for regarding” an
alien as
a danger to the national security where there is information that would
permit a reasonable person to believe that the alien may pose such a
danger.
(5) The Attorney General remanded the record for further consideration
by the Board of Immigration Appeals of the questions whether (1) there
is sufficient evidence to indicate that the respondent “incited,
assisted, or otherwise participated in the persecution” of others;
(2)
deference should be given to the credibility findings of the Immigration
Judge; (3) there are “reasonable grounds for regarding [the respondent]
as a danger to the security of the United States”; (4) the respondent
presently faces a threat to his life or freedom if removed to Algeria;
and (5) the respondent presently faces a likelihood of being tortured in
Algeria.
Matter of BRIEVA, 23 I&N Dec. 766 (BIA 2005) (ID 3514)
(1) The offense of unauthorized use of a motor vehicle in violation of
section 31.07(a) of the Texas Penal Code is a crime of violence under 18
U.S.C. § 16(b) (2000) and is therefore an aggravated felony under
section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. §
1101(a)(43)(F) (2000).
(2) An alien who is removable on the basis of his conviction for a crime
of violence is ineligible for a waiver under former section 212(c) of
the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), because
the aggravated felony ground of removal with which he was charged has no
statutory counterpart in the grounds of inadmissibility under section
212(a) of the Act, 8 U.S.C. § 1182(a) (2000).
Matter of SHANU, 23 I&N Dec. 754 (BIA 2005) (ID 3513)
(1) The phrase “date of admission” in section 237(a)(2)(A)(i)
of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2000),
refers to, among other things, the date on which a previously admitted
alien is lawfully admitted for permanent residence by means of
adjustment of status.
(2) An alien convicted of a single crime involving moral turpitude that
is punishable by a term of imprisonment of at least 1 year is removable
from the United States under section 237(a)(2)(A)(i) of the Act if the
crime was committed within 5 years after the date of any admission made
by the alien, whether it be the first or any subsequent admission.
Matter of Lovo, 23 I&N Dec. 746 (BIA 2005) (ID 3512)
(1) The Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419
(1996), does not preclude, for purposes of Federal law, recognition of a
marriage involving a postoperative transsexual, where the marriage is
considered by the State in which it was performed as one between two
individuals of the opposite sex.
(2) A marriage between a postoperative transsexual and a person of the
opposite sex may be the basis for benefits under section 201(b)(2)(A)(i)
of the Immigration and Nationality Act, 8 U.S.C. § 1151(b)(2)(A)(i)
(2000), where the State in which the marriage occurred recognizes the
change in sex of the postoperative transsexual and considers the
marriage a valid heterosexual marriage.
Matter of A-M-, 23 I&N Dec. 737 (BIA 2005) (ID 3511)
(1) Absent specific reasons for reducing the period of voluntary
departure initially granted by the Immigration Judge at the conclusion
of removal proceedings, the Board of Immigration Appeals will reinstate
the same period of time for voluntary departure afforded to the alien by
the Immigration Judge. Matter of Chouliaris, 16 I&N Dec. 168 (BIA 1977),
modified.
(2) The respondent, whose asylum application was not filed within a year
of his arrival in the United States, failed to demonstrate his
eligibility for an exception to the filing deadline or for any other
relief based on his claim of persecution in Indonesia, but the 60-day
period of voluntary departure granted to him by the Immigration Judge
was reinstated.
Mattr of X-K-, 23 I&N Dec. 731 (BIA 2005) (ID 3510)
An alien who is initially screened for expedited removal under section
235(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. §
1225(b)(1)(A) (2000), as a member of the class of aliens designated
pursuant to the authority in section 235(b)(1)(A)(iii), but who is
subsequently placed in removal proceedings under section 240 of the Act,
8 U.S.C. § 1229a 2000), following a positive credible fear
determination, is eligible for a custody redetermination hearing before
an Immigration Judge unless the alien is a member of any of the listed
classes of aliens who are specifically excluded from the custody
jurisdiction of Immigration Judges pursuant to 8 C.F.R. §
1003.19(h)(2)(i) (2004).
Matter of BLAKE; 23 I&N Dec.722 (BIA 2005) (ID 3509)
An alien who is removable on the basis of his conviction for sexual
abuse of a minor is ineligible for a waiver under former section 212(c)
of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994),
because the aggravated felony ground of removal with which he was
charged has no statutory counterpart in the grounds of inadmissibility
under section 212(a) of the Act, 8 U.S.C. § 1182(a) (2000). Matter of
Meza, 20 I&N Dec. 257 (BIA 1991), distinguished.
Matter of LUVIANO-Rodriguez, 23 I&N Dec. 718 (A.G. 2005) (ID 3508)
An alien whose firearms conviction was expunged pursuant to section
1203.4 of the California Penal Code has been “convicted” for
immigration
purposes. Matter of Marroquin, 23 I&N Dec. 705 (A.G. 2005), followed.
Matter of MARROQUIN-Garcia, 23 I&N Dec. 705 (A.G. 2005) (ID 3507)
(1) The federal definition of “conviction” at section 101(a)(48)(A)
of
the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2000),
encompasses convictions, other than those involving first-time simple
possession of narcotics, that have been vacated or set aside pursuant to
an expungement statute for reasons that do not go to the legal propriety
of the original judgment, and that continue to impose some restraints or
penalties upon the defendant’s liberty.
(2) An alien whose firearms conviction was expunged pursuant to section
1203.4 of the California Penal Code has been “convicted” for
immigration
purposes.
Matter of AZURIN; 23 I&N Dec. 695 (BIA 2005) (ID 3505)
An alien who, prior to the 1996 amendments made to former section 212(c)
of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), pled
guilty to an offense that rendered him inadmissible as an alien
convicted of a crime involving moral turpitude, as well as removable
based on his conviction for an aggravated felony and a firearms offense,
may seek a waiver of his inadmissibility under section 212(c) in
conjunction with an application for adjustment of status, despite
regulatory changes relating to the availability of section 212(c)
relief. Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993), reaffirmed.
(ID 3503) Matter of C-Y-Z-, 23 I&N Dec. 693 (A.G. 2004)
The Attorney General denied the request of the Commissioner of the
Immigration and Naturalization Service to certify for review the
decision of the Board of Immigration Appeals.
(ID 3502) Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004)
An alien found guilty of a “violation” under Oregon law in a
proceeding
conducted pursuant to section 153.076 of the Oregon Revised Statutes
does not have a “conviction” for immigration purposes under section
101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. §
1101(a)(48)(A) (2000).
(ID 3501) Matter of L-K-, 23 I&N Dec. 677 (BIA 2004)
(1) Under section 245(c)(2) of the Immigration and Nationality Act, 8
U.S.C. § 1255(c)(2) (2000), an alien who has failed to continuously
maintain a lawful status since entry into the United States, other than
through no fault of his own or for technical reasons, is ineligible for
adjustment of status under section 245(a) of the Act.
(2) A failure to maintain lawful status is not “for technical reasons”
within the meaning of section 245(c)(2) of the Act and the applicable
regulations at 8 C.F.R. § 1245.1(d)(2)(ii) (2004), where the alien filed
an asylum application while in lawful nonimmigrant status, the
nonimmigrant status subsequently expired, and the asylum application was
referred to the Immigration Court prior to the time the alien applied
for adjustment of status.
(ID 3500) Matter of Cisneros-Gonzalez, 23 I&N Dec. 668
(1) Pursuant to section 240A(d)(1) of the Immigration and Nationality
Act, 8 U.S.C. § 1229b(d)(1) (2000), an alien’s period of continuous
physical presence in the United States is deemed to end when the alien
is served with the charging document that is the basis for the current
proceeding.
(2) Service of a charging document in a prior proceeding does not serve
to end the alien’s period of continuous physical presence with respect
to an application for cancellation ofremoval filed in the current
proceeding. Matter of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000),
distinguished.
(ID 3499) Matter of K-A-, 23 I&N Dec. 661 (BIA 2004)
(1) Pursuant to 8 C.F.R. § 1209.2(c) (2004), once an asylee has been
placed in removal proceedings, the Immigration Judge and the Board of
Immigration Appeals have exclusive jurisdiction to adjudicate the
asylee’s applications for adjustment of status and a waiver of
inadmissibility under sections 209(b) and (c) of the Immigration and
Nationality Act, 8 U.S.C. §§ 1159(b) and (c) (2000). Matter of
H-N-, 22
I&N Dec. 1039 (BIA 1999), distinguished.
(2) Termination of a grant of asylum pursuant to section 208(c)(2) of
the Act, 8 U.S.C. § 1158(c)(2) (2000), is not mandatory with respect
to
an asylee who qualifies for and merits adjustment of status and a waiver
of inadmissibility under sections 209(b) and (c) of the Act.
(ID 3498) Matter of Malta, 23 I & N Dec. 23 I&N Dec. 656 (BIA 2004)
A stalking offense for harassing conduct in violation of section
646.9(b) of the California Penal Code, which proscribes stalking when
there is a temporary restraining order, injunction, or any other court
order in effect prohibiting the stalking behavior, is a crime of
violence under 18 U.S.C. § 16(b) (2000), and is therefore an aggravated
felony under section 101(a)(43)(F) of the Immigration and Nationality
Act, 8 U.S.C. § 1101(a)(43)(F) (2000).
(ID 3497) Matter of Vargas, 23 I&N Dec. 651 (BIA 2004)
The offense of manslaughter in the first degree in violation of section
125.20 of the New York Penal Law is a crime of violence under 18 U.S.C.
§ 18(b) (2000) and is therefore an aggravated felony under section
101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. §
1101(a)(43)(F) (2000).
(ID 3496) Matter of Gadda, 23 I&N Dec. 645 (BIA 2003)
(1) An attorney who practices immigration law in proceedings before the
Board of Immigration Appeals, the Immigration Courts, and the Department
of Homeland Security must be a member in good standing of a State bar
and is therefore subject to discipline by State bar authorities.
(2) The Board of Immigration Appeals has authority to increase the level
of disciplinary sanction initially imposed by an adjudicating official
against an attorney.
(3) Where the respondent was disbarred by the Supreme Court of
California based on his egregious and repeated acts of professional
misconduct over a number of years, expulsion from practice before the
Board of Immigration Appeals, the Immigration Courts, and the Department
of Homeland Security is an appropriate sanction.
(ID 3495) Matter of R-S-H-, 23 I & N 629 (BIA 2003)
(1) Under 8 C.F.R. § 1003.46(i) (formerly 8 C.F.R. § 3.46(i)),
the
mandatory consequence for violating a protective order is that the
respondent becomes ineligible for any form of discretionary relief,
except for bond.
(2) The mandatory consequence for breaching a protective order will be
applied unless a respondent fully cooperates with the Government in any
investigation relating to the noncompliance and, additionally,
establishes by clear and convincing evidence either that extraordinary
and extremely unusual circumstances exist or that failure to comply with
the protective order was beyond the control of the respondent and his or
her attorney or accredited representative.
(3) The presence of federal employees, including court personnel or
Department of Justice attorneys, at a closed hearing where a protective
order is discussed does not violate the protective order regulations.
(4) The respondent is ineligible for any form of discretionary relief,
except for bond, because a protective order issued by the Immigration
Judge was violated by disclosure of protected information to
unauthorized persons.
Matter of Jung Tae SUH, 23 I&N Dec. 626 (BIA 2003) Decided July 1, 2003
(1) A presidential or gubernatorial pardon waives only the grounds of
removal specifically set forth in section 237(a)(2)(A)(v) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(v) (2000),
and
no implicit waivers may be read into the statute.
(2) The respondent’s pardon did not waive his removability as an alien
convicted of a crime of domestic violence or child abuse under section
237(a)(2)(E)(i) of the Act, because that section is not specifically
included in section 237(a)(2)(A)(v).
Section 237(a)(2)(A)(v) of the Act specifies the effect of a
presidential or gubernatorial pardon on certain grounds of removability.
It states that “[c]lauses (i), (ii), (iii), and (iv)” of section
237(a)(2)(A) “shall not apply” where such a pardon has been granted.
It
thereby provides for an automatic waiver of removability where a pardon
has been granted for (i) crimes of moral turpitude, (ii) multiple
criminal convictions, (iii) aggravated felonies, and (iv) certain high
speed flight convictions. There is no comparable provision regarding
pardons that would cover convictions for other offenses that render an
alien removable, such as acts of domestic violence or child abuse
pursuant to section 237(a)(2)(E)(i), under which the respondent was
charged. Other removable offenses, such as controlled substance
violations under section 237(a)(2)(B), certain firearm offenses under
section 237(a)(2)(C), and violations of protection orders under section
237(a)(2)(E)(ii), are similarly not covered by the pardon waiver of
section 237(a)(2)(A)(v) of the Act.
Matter of PICKERING, 23 I&N Dec. 621 (BIA 2003) Decided June 11, 2003
(1) If a court vacates an alien’s conviction for reasons solely related
to rehabilitation or immigration hardships, rather than on the basis of
a procedural or substantive defect in the underlying criminal
proceedings, the conviction is not eliminated for immigration
purposes.
(2) Where the record indicated that the respondent’s conviction for
possession of a controlled substance was quashed by a Canadian court for
the sole purpose of avoiding the bar to his acquisition of
permanent residence, the court’s action was not effective to
eliminate the conviction for immigration purposes.
In re Y-T-L-, 23 I&N Dec. 601 (BIA 2003) Decided May 22, 2003
Where an alien has established past persecution based on the forced
sterilization of his spouse pursuant to a policy of coercive family
planning, the fact that, owing to such sterilization, the alien and his
spouse face no further threat of forced sterilization or abortion does
not constitute a “fundamental change” in circumstances sufficient
to
meet the standards for a discretionary denial under 8 C.F.R. §
1208.13(b)(1)(i)(A).
In re Jose Abraham DEANDA-ROMO, 23 I&N Dec. 597 (BIA 2003) Decided May
8, 2003
The respondent, who was convicted of two misdemeanor crimes involving
moral turpitude, is not precluded by the provisions of section
240A(d)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. §
1229b(d)(1)(B) (2000), from establishing the requisite 7 years of
continuous residence for cancellation of removal under section
240A(a)(2), because his first crime, which qualifies as a petty offense,
did not render him inadmissible, and he had accrued the requisite 7
years of continuous residence before the second offense was committed.
In re Fidel GARCIA-HERNANDEZ, 23 I&N Dec. 590 (BIA
2003) Decided May 8,
2003
(1) An alien who has been convicted of a crime involving moral turpitude
that falls within the “petty offense” exception in section
212(a)(2)(A)(ii)(II) of the Immigration and Nationality Act, 8 U.S.C. §
1182(a)(2)(A)(ii)(II) (1994), is not ineligible for cancellation of
removal under section 240A(b)(1)(C) of the Act, 8 U.S.C. §
1229b(b)(1)(C) (Supp. IV 1998), because he “has not been convicted
of an
offense under section 212(a)(2)” of the Act.
(2) An alien who has committed a crime involving moral turpitude that
falls within the “petty offense” exception is not ineligible
for
cancellation of removal under section 240A(b)(1)(B) of the Act, because
commission of a petty offense does not bar the offender from
establishing good moral character under section 101(f)(3) of the Act, 8
U.S.C. § 1101(f)(3) (Supp. IV 1998).
(3) An alien who has committed more than one petty offense is not
ineligible for the “petty offense” exception if “only one
crime” is a
crime involving moral turpitude.
4) The respondent, who was convicted of a crime involving moral
turpitude that qualifies as a petty offense, was not rendered ineligible
for cancellation of removal under section 240A(b)(1) of Act by either
his conviction or his commission of another offense that is not a crime
involving moral turpitude.
In re Moises NAVAS-ACOSTA, 23 I&N Dec. 586 (BIA
2003) Decided April
29, 2003
(1) United States nationality cannot be acquired by taking an oath of
allegiance pursuant to an application for naturalization, because birth
and naturalization are the only means of acquiring United States
nationality under the Immigration and Nationality Act.
(2) The respondent, who was born abroad and did not acquire United
States nationality at birth, by naturalization, or by congressional
action, failed to establish such nationality by declaring his allegiance
to the United States in connection with an application for
naturalization.
Respondent contended that he submitted an application for naturalization
in 1994 and was examined by the Service on January 12, 1996. He signed
a statement declaring his allegiance to the United States. The
naturalization application was denied by the Service on August 22, 1996.
The respondent, citing Hughes v. Ashcroft, 255 F.3d 752 (9th Cir. 2001),
contended that by applying for naturalization and taking an oath of
allegiance, he has attained the status of a “national” of the
United
States, as that term is defined in section 101(a)(22)(B) of the Act,
thereby excluding him from the definition of an “alien.”
After considering the historical meaning of the term “national” and
the
statutory framework of the Act, we find that nationality under the Act
may be acquired only through birth or naturalization. The respondent was
born in El Salvador, so there is a rebuttable presumption of his
alienage. Matter of Rodriguez-Tejedor, 23 I&N Dec. 153, 164 (BIA 2001).
He does not fall into any of the categories of persons who acquire
nationality through birth under Chapter 1 of Title III of the Act, and
he is not a naturalized citizen. He also does not claim nationality by
virtue of any separate legislation, outside the provisions of the Act,
allowing for the acquisition of nationality on either an individual or
collective basis. His alienage has therefore been established.
Accordingly, the Service’s appeal was sustained.
Matter of D-J-, 23 I&N Dec. 572 (AG 2003) Decided April 17, 2003
(1) The Attorney General has broad discretion in bond proceedings under
section 236(a) of the Immigration and Nationality Act, 8 U.S.C. §
1226(a) (2000), to determine whether to release an alien on bond.
(2) Neither section 236(a) of the Act nor the applicable regulations
confer on an alien the right to release on bond.
(3) In determining whether to release on bond undocumented migrants who
arrive in the United States by sea seeking to evade inspection, it is
appropriate to consider national security interests implicated by the
encouragement of further unlawful mass migrations and the release of
undocumented alien migrants into the United States without adequate
screening.
(4) In bond proceedings involving aliens seeking to enter the United
States illegally, where the Government offers evidence from sources in
the Executive Branch with relevant expertise establishing that
significant national security interests are implicated, Immigration
Judges and the Board of Immigration Appeals shall consider such
interests.
(5) Considering national security grounds applicable to a category of
aliens in denying an unadmitted alien’s request for release on bond
does
not violate any due process right to an individualized determination in
bond proceedings under section 236(a) of the Act.
(6) The denial of the respondent’s release on bond does not violate
international law.
(7) Release of the respondent on bond is unwarranted due to
considerations of sound immigration policy and national security that
would be undercut by the release of the respondent and other similarly
situated undocumented alien migrants who unlawfully crossed the borders
of the United States on October 29, 2002; further, the respondent failed
to demonstrate adequately that he does not present a risk of flight if
released and should be denied bond on that basis as well.
In re AASAD, 23 &N Dec. 553 (BIA 2003), Decided February 12, 2003
(1) Case law of the United States Supreme Court holding, in the
context of criminal proceedings, that there can be no
deprivation of effective assistance of counsel where there is
no constitutional right to counsel does not require withdrawal
from Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff’d, 857
F.2d 10 (1st Cir. 1988), finding a right to assert a claim of
ineffective assistance of counsel in immigration proceedings,where
the United States Courts of Appeals have recognized that a
respondent has a Fifth Amendment due process right to a fair
immigration hearing, which may be denied if counsel prevents
the respondent from meaningfully presenting his or her case.
(2) The respondent did not establish that his former counsel’s
failure to file a timely appeal constituted sufficient
prejudice to warrant consideration of his late appeal on the
basis of ineffective assistance of counsel.
Matter of Koloamatangi 23 &N Dec. 548 (BIA 2003), Decided January 8, 2003
An alien who acquired permanent resident status through fraud or
misrepresentation has never been “lawfully admitted for permanent
residence” and is therefore ineligible for cancellation of removal
under
section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. §
1229b(a) (2000).
In re M-D-, 23 I&N Dec. 540 (BIA 2002) December 18, 2002
(1) An alien may be charged with receipt of a notice to appear and
notice of the hearing date, where the notice is sent by certified mail
to the alien’s correct address, but it is returned by the United States
Postal Service marked “unclaimed.”
(2) The regulations at 8 C.F.R. § 3.13 (2002) do not require that the
notice to appear or notice of hearing in removal proceedings be sent to
the alien or the alien’s attorney of record by regular mail, as opposed
to certified mail.
In re Rosa MEJIA-ANDINO, 23 I&N Dec. 533 (BIA 2002) December 4, 2002
Removal proceedings against a minor under 14 years of age were properly
terminated because service of the notice to appear failed to meet the
requirements of 8 C.F.R. § 103.5a(c)(2)(ii) (2002), as it was served
only on a person identified as the respondent’s uncle, and no effort
was
made to serve the notice on the respondent’s parents, who apparently
live in the United States.
In re Glendi GOMEZ-GOMEZ, 23 I&N Dec. 522 (BIA 2002) December 4, 2002
(1) The Immigration and Naturalization Service met its burden, in an in
absentia removal proceeding, of establishing a minor respondent’s
removability by clear, unequivocal, and convincing evidence, where (1) a
Record of Deportable/Inadmissible Alien (Form I-213) was submitted,
documenting the respondent’s identity and alienage; (2) the respondent,
who failed without good cause to appear at her removal hearing, made no
challenge to the admissibility of the Form I-213; (3) there were no
grounds for a finding that the admission of the Form I-213 would be
fundamentally unfair; and (4) no independent evidence in the record
supported the Immigration Judge’s conclusion that the respondent may
not
have been the child of the adult who claimed to be the respondent’s
parent and who furnished the information regarding her foreign
citizenship. Matter of Ponce-Hernandez, 22 I&N Dec. 784 (BIA 1999),
followed.
(2) The respondent, a minor who could not be expected to attend
immigration proceedings on her own, was properly notified of her
hearing, through proper mailing of a Notice to Appear (Form I-862) to
the last address provided by her parent, with whom she was residing.
In re Nabil Ahmed ELGENDI, 23 I&N Dec. 515 (BIA 2002)
Decided October
31, 2002
In accordance with authoritative precedent of the United States Court of
Appeals for the Second Circuit in United States v. Pornes-Garcia, 171
F.3d 142 (2d Cir. 1999), and United States v. Polanco, 29 F.3d 35 (2d
Cir. 1994), an individual who has been convicted twice of misdemeanor
possession of marijuana in violation of New York State law has not been
convicted of an aggravated felony under section 101(a)(43)(B) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000).
Matter of Martin, 23 I&N Dec. 491 (BIA 2002) Decided September 26, 2002
The offense of third-degree assault (a class A misdemeanor) in violation
of section 53a-61(a)(1) of the Connecticut General Statutes, which
involves the intentional infliction of physical injury upon another, is
a crime of violence under 18 U.S.C. § 16(a) (2000) and is therefore an
aggravated felony under section 101(a)(43)(F) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2000).
Defendant was convicted pursuant to a guilty plea of the offense of
third-degree assault,which is a class A misdemeanor under Connecticut
law. He was sentenced to a 1-year term of imprisonment.
The term “crime of violence” referenced is defined as (a) an offense
that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or (b) any
other offense that is a felony and that, by its nature, involves a
substantial risk that physical force against the person or property of
another may be used in the course of committing the offense.
Respondent’s offense did not constitute a crime of violence under 18
U.S.C. § 16(b), which is confined to felony offenses by its terms, but
rather by reference to 18 U.S.C. § 16(a).
By expressly including misdemeanor simple assault offenses within the
crime of violence definition at 18 U.S.C. § 16(a), Congress
unequivocally manifested its understanding that assault offenses
involving the intentional infliction or threatened infliction of
“injury” or “bodily harm,” such as those described
by 18 U.S.C. §
113(a)(5) and section 53a-61(a)(1) of the Connecticut General Statutes,
have as an inherent element the actual or threatened use of physical
force.
Matter of Recinas, 23 I&N Dec. 467 (BIA 2002)
(1) The respondent, a single mother who has no immediate
family
remaining in Mexico, provides the sole support for her six children, and
has limited financial resources, established eligibility for
cancellation of removal under section 240A(b) of the Immigration and
Nationality Act, 8 U.S.C. § 1229b(b) (2002), because she demonstrated
that her United States citizen children, who are 12, 11, 8, and 5 years
old, will suffer exceptional and extremely unusual hardship upon her
removal to her native country.
(2) The factors considered in assessing the hardship to the respondent’s
children include the heavy burden imposed on the respondent to provide
the sole financial and familial support for her six children if she is
deported to Mexico, the lack of any family in her native country, the
children’s unfamiliarity with the Spanish language, and the
unavailability of an alternative means of immigrating to this country.
Matter of S-H-, et al., 23 I&N Dec. 462 (BIA 2002)
Under new regulations that become effective on September 25, 2002, the
Board of Immigration Appeals has limited fact-finding ability on appeal,
which heightens the need for Immigration Judges to include in their
decisions clear and complete findings of fact that are supported by the
record and are in compliance with controlling law. Matter of
Vilanova-Gonzalez, 13 I&N Dec. 399 (BIA 1969), and Matter of
Becerra-Miranda, 12 I&N Dec. 358 (BIA 1967), superseded.
In re Anderson David Justin SMALL
23 I&N Dec. 448 (BIA 2002) Interim
Decision #3476, Decided June 4, 2002
A misdemeanor offense of sexual abuse
of a minor constitutes an
aggravated felony under section 101(a)(43)(A) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2000).
In re Hilario ROMALEZ-Alcaide,
23 I&N Dec. 423 (BIA 2002) Interim
Decision #3475, Decided May 29, 2002
For purposes of determining eligibility
for cancellation of removal
pursuant to section 240A(b) of the Immigration and Nationality Act, 8
U.S.C. § 1229b(b) (Supp. IV 1998), continuous physical presence is
deemed to end at the time an alien is compelled to depart the United
States under threat of the institution of deportation or removal
proceedings.
In re Walter Antonio SANTOS-LOPEZ,
23 I&N Dec. 419 (BIA 2002) Interim
Decision #3474, Decided May 14, 2002
(1) Under the decisions of the United
States Court of Appeals for the
Fifth Circuit in United States v. Hernandez-Avalos, 251 F.3d 505 (5th
Cir.), cert. denied, 122 S. Ct. 305 (2001), and United States v.
Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997), a determination whether an
offense is a “felony” for purposes of 18 U.S.C. § 924(c)(2)
(2000)
depends on the classification of the offense under the law of the
convicting jurisdiction. Matter of Yanez, 23 I&N Dec. 390 (BIA 2002),
followed.
(2) Each of the respondent’s
two convictions for possession of marihuana
is classified as a misdemeanor offense under Texas law; therefore,
neither conviction is for a “felony” within the meaning of 18 U.S.C.
§
924(c)(2) or an “aggravated felony” within the meaning of section
101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. §
1101(a)(43)(B) (2000).
In re Ismael YANEZ-Garcia,
23 I&N Dec. 390 (BIA 2002 ) Interim Decision
#3473, Decided May 13, 2002
The determination whether a state
drug offense constitutes a “drug
trafficking crime” under 18 U.S.C. § 924(c)(2) (2000), such that
it may
be considered an “aggravated felony” under section 101(a)(43)(B)
of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000), shall
be made by reference to decisional authority from the federal circuit
courts of appeals, and not by reference to any separate legal standard
adopted by the Board of Immigration Appeals. Matter of K-V-D-, Interim
Decision 3422 (BIA 1999), overruled. Matter of L-G-, 21 I&N Dec. 89 (BIA
1995), and Matter of Davis, 20 I&N Dec. 536 (BIA 1992), modified.
In re Melanie Beaucejour JEAN,
23 I&N Dec. 373 (A.G. 2002) Interim
Decision #3472, Decided May 2, 2002
(1) The 30-day period set forth in
8 C.F.R. § 3.38(b) (2002) for filing
an appeal to the Board of Immigration Appeals is mandatory and
jurisdictional, and it begins to run upon the issuance of a final
disposition in the case.
(2) The Board of Immigration Appeals’
authority under 8 C.F.R. § 3.1(c)
(2002) to certify cases to itself in its discretion is limited to
exceptional circumstances, and is not meant to be used as a general cure
for filing defects or to otherwise circumvent the regulations, where
enforcing them might result in hardship.
(3) In evaluating the propriety of
granting an otherwise inadmissible
alien a discretionary waiver to permit adjustment of status from refugee
to lawful permanent resident pursuant to section 209(c) of the
Immigration and Nationality Act, 8 U.S.C. § 1159(c) (2000), any
humanitarian, family unity preservation, or public interest
considerations must be balanced against the seriousness of the criminal
offense that rendered the alien inadmissible.
(4) Aliens who have committed violent
or dangerous crimes will not be
granted a discretionary waiver to permit adjustment of status from
refugee to lawful permanent resident pursuant to section 209(c) of the
Act except in extraordinary circumstances, such as those involving
national security or foreign policy considerations, or cases in which an
alien clearly demonstrates that the denial of status adjustment would
result in exceptional and extremely unusual hardship. Depending on the
gravity of the alien’s underlying criminal offense, such a showing of
exceptional and extremely unusual hardship might still be insufficient.
(5) Aliens who have committed violent
or dangerous crimes will not be
granted asylum, even if they are technically eligible for such relief,
except in extraordinary circumstances, such as those involving national
security or foreign policy considerations, or cases in which an alien
clearly demonstrates that the denial of status adjustment would result
in exceptional and extremely unusual hardship. Depending on the gravity
of the alien’s underlying criminal offense, such a showing of
exceptional and extremely unusual hardship might still be insufficient.
Manuel RAMOS, 23 I&N Dec. 336 (BIA 2002) Decided April 4, 2002
(1) In cases arising in circuits
where the federal court of appeals has
not decided whether the offense of driving under the influence is a
crime of violence under 18 U.S.C. § 16(b) (2000), an offense will be
considered a crime of violence if it is committed at least recklessly
and involves a substantial risk that the perpetrator may resort to the
use of force to carry out the crime; otherwise, where the circuit court
has ruled on the issue, the law of the circuit will be applied to cases
arising in that jurisdiction.
(2) The offense of operating a motor
vehicle while under the influence
of intoxicating liquor in violation of chapter 90, section 24(1)(a)(1)
of the Massachusetts General Laws is not a felony that, by its nature,
involves a substantial risk that physical force against the person or
property of another may be used in the course of committing the offense
and is therefore not a crime of violence. Matter of Puente, Interim
Decision 3412 (BIA 1999), and Matter of Magallanes, Interim Decision
3341 (BIA 1998), overruled.
In re Martha ANDAZOLA-Rivas,
23 I&N Dec. 319 (BIA 2002) Interim Decision
#3467, Decided April 3, 2002
(1) The respondent, an unmarried
mother, did not establish eligibility
for cancellation of removal under section 240A(b) of the Immigration and
Nationality Act, 8 U.S.C. § 1229b(b) (2000), because she failed to
demonstrate that her 6- and 11-year-old United States citizen children
will suffer exceptional and extremely unusual hardship upon her removal
to Mexico.
(2) The factors considered in assessing
the hardship to the respondent’s
children include the poor economic conditions and diminished educational
opportunities in Mexico and the fact that the respondent is unmarried
and has no family in that country to assist in their adjustment upon her
return.
In re Mario Eduardo VELARDE-Pacheco,
23 I&N Dec. 253 (BIA 2002) Interim
Decision #3463, Decided March 6, 2002
A properly filed motion to reopen
for adjustment of status based on a
marriage entered into after the commencement of proceedings may be
granted in the exercise of discretion, notwithstanding the pendency of
a
visa petition filed on the alien’s behalf, where: (1) the motion to
reopen is timely filed; (2) the motion is not numerically barred by the
regulations; (3) the motion is not barred by *Matter of Shaar,
21 I&N
Dec. 541 (BIA 1996), or on any other procedural grounds;(4) clear and
convincing evidence is presented indicating a strong likelihood that the
marriage is bona fide; and (5) the Immigration and Naturalization
Service does not oppose the motion or bases its opposition solely on
*Matter of Arthur, 20 I&N Dec. 475 (BIA 1992). *Matter
of H-A-, Interim
Decision 3394 (BIA 1999), and Matter of Arthur, supra, modified.
*Matter of Arthur, 1992 BIA LEXIS 8; 20 I. & N. Dec. 475, ID # 3173
(1) Under the rule of Matter of
Garcia, 16 I&N Dec. 653 (BIA 1978), a
motion to reopen should generally be granted in cases involving an
application for adjustment of status filed simultaneously with a visa
petition, notwithstanding the fact that the visa petition has not yet
been adjudicated, unless the applicant for adjustment appears clearly
ineligible for the preference classification claimed in the underlying
petition.
(2) Subsequent to our decision in
Matter of Garcia, supra, Congress
amended sections 204(g) and 245(e) of the Immigration and Nationality
Act, 8 U.S.C. @@ 1154(g) and 1255(e) (Supp. II 1990), to preclude an
alien from adjusting his status based on a marriage that was entered
into after the commencement of proceedings to determine his right to
enter or remain in the United States and to bar the approval of a visa
petition to accord immediate relative or preference status based upon
such marriage until after the beneficiary of the petition has resided
outside the United States for a 2-year period following the marriage,
unless the alien establishes "by clear and convincing evidence to the
satisfaction of the Attorney General that the marriage was entered into
in good faith and . . . was not entered into for the purpose of
procuring the alien's entry as an immigrant."
*Matter of Garcia, 1978 BIA LEXIS 53; 16 I. & N. Dec. 653, ID # 2684
(1) Rule that reopening of proceedings
will be denied absent a prima
facie showing that the statutory requirements for relief have been met
must be reexamined as to adjustment of status in view of the amendment
of 8 C.F.R. 245.2(a)(2) permitting an adjustment application, filed
with a visa petition, to be retained if later approval of the petition
would make a visa available at time of filing.
(2) 8 C.F.R. 245.2(a)(2), permitting
simultaneous filing of an
application for adjustment of status and a visa petition, applies both
before and after the issuance of an Order to Show Cause.
(3) Service policy permits a prima
facie qualified beneficiary of a
visa petition to remain in the United States pending final adjudication
of the petition and an adjustment application.
(4) Unless clear ineligibility is
apparent in the record, the Board
shall generally grant motions to reopen in cases involving an
application for adjustment of status filed simultaneously with a visa
petition pursuant to 8 C.F.R. 245.2(a)(2), notwithstanding the fact
that the petition has not yet been adjudicated.
(5) An immigration judge may, in
his discretion, grant a motion to
reopen or a request for a continuance [*2] of a deportation hearing
pending final adjudication of a visa petition filed simultaneously with
an adjustment application under 8 C.F.R. 245.2(a)(2) where a prima
facie approvable visa petition and adjustment application have been
submitted to him. Matter of Kotte, Interim Decision 2634 (BIA 1978)
clarified.
*H-A-, 22 I&N
Dec. 728 (BIA 1999), Modified, 23 I&N 253 (BIA 2002)
Matter of Arthur, 20 I&N Dec. 475 (BIA 1992), is not inconsistent with
the motions to reopen regulations at 8 C.F.R. §§ 3.2(c)(2) and
3.23(b)(4)(i) (effective July 1, 1996). Matter of Arthur, supra,
reaffirmed.
*Shaar, 21 I&N Dec. 541(BIA 1996)
(1) An alien who has filed a motion
to reopen during the pendency of a
voluntary departure period in order to apply for suspension of
deportation and who subsequently remains in the United States after the
scheduled date of departure is statutorily ineligible for suspension of
deportation pursuant to section 242B(e)(2)(A) of the Immigration and
Nationality Act, 8 U.S.C. § 1252b(e)(2)(A) (Supp. V 1993), if the
notice requirements of that section have been satisfied, absent a
showing that the alien’s failure to timely depart the United States was
due to “exceptional circumstances” under section 242B(f)(2) of the
Act.
(2) Neither the filing of a motion
to reopen to apply for suspension of
deportation during the pendency of a period of voluntary departure, nor
the Immigration Judge’s failure to adjudicate the motion to reopen
prior to the expiration of the alien’s voluntary departure period
constitutes an "exceptional circumstance."
In re Laura Estella SALAZAR-Regino,
23 I&N Dec. 223 (BIA 2002) Interim
Decision #3462 Decided February 14, 2002
(1) An alien whose adjudication of
guilt was deferred pursuant to
article 42.12, section 5(a) of the Texas Code of Criminal Procedure
following her plea of guilty to possession of a controlled substance is
considered to have been convicted of the offense. Matter of Roldan,
Interim Decision 3377 (BIA 1999), reaffirmed.
(2) In Lujan-Armendariz v. INS, 222
F.3d 728 (9th Cir. 2000), the United
States Court of Appeals for the Ninth Circuit overruled in part Matter
of Roldan, supra, which will not be applied in cases arising within the
jurisdiction of the Ninth Circuit.
(3) In light of the decisions in
United States v. Hernandez-Avalos, 251
F.3d 505 (5th Cir. 2000), cert. denied, 122 S. Ct. 305 (2001), and
United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997), the
decision of the Board of Immigration Appeals in Matter of K-V-D-,
Interim Decision 3422 (BIA 1999), will not be applied in cases arising
within the jurisdiction of the Fifth Circuit.
In re Carlos VASQUEZ-MUNIZ,
23 I&N Dec. 207 (BIA 2001) Interim Decision
#3461 Decided January 15, 2002.
(1) An offense defined by state or
foreign law may be classified as
an aggravated felony as an offense "described in" a federal statute
enumerated in section 101(a)(43) of the Immigration and Nationality
Act, 8 U.S.C. Sec. 1101(a)(43) (1994 & Supp. V 1999), even if it
lacks the jurisdictional element of the federal statute.
(2) Possession of a firearm by a felon
in violation of section
12021(a)(1) of the California Penal Code is an aggravated felony
under section 101(a)(43)(E)(ii)
of the Act because it is “described
in” 18 U.S.C. Sec. 922(g)(1) (1994). Matter of Vasquez-Muniz,
Interim Decision 3440 (BIA 2000), overruled.
Revised:
11/06/2009
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