23 I&N Dec. 201 (BIA 2001) Interim Decision
#3460, October 25, 2001. CANCELLATION OF REMOVAL
An applicant for cancellation
of removal under section 240A(a) of
the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (Supp. V
1999), need not meet a threshold test requiring a showing of
unusual or outstanding equities before a balancing of the
favorable and adverse factors of record will be made to determine
whether relief should be granted in the exercise of discretion.
Matter of C-V-T-, Interim Decision 3342 (BIA 1998), clarified.
The respondent is a native
and citizen of Mexico who adjusted his
status to that of a lawful permanent resident on December 1, 1990.
On July 24, 2000, he was convicted of: possession and passing
fraudulent resident alien cards, in violation of 18 U.S.C. § 1546
(1994 & Supp. V 1999); failure to provide migrant workers with terms
and conditions of employment, in violation of 29 U.S.C. § 1821 (1994
& Supp. V 1999) and 29 U.S.C. § 1851 (1994); and illegal entry or
aiding and abetting illegal entry, in violation of 8 U.S.C. § 1325
(1994 & Supp. V 1999) and 18 U.S.C. § 2 (1994). The respondent was
sentenced to 8 months of imprisonment for each of the first two
offenses, and to 6 months of imprisonment for third offense, with
all sentences to run concurrently.
Evidence contained in the
record indicates that between January and
August 1999, the respondent smuggled aliens into the United States
for a fee of approximately $1,500 per person. In addition, he
charged each individual approximately $80 per month for rent and $35
per week for transportation to and from work. He sold fraudulent
alien registration and Social Security cards to the aliens for
approximately $100 apiece. Moreover, the respondent was paid $400
per person for transporting aliens from Arizona to Idaho.
Section 240A(a) of the Act
provides as follows:
The Attorney General may
cancel removal in the case of an alien who
is inadmissible or deportable from the United States if the alien
(1) has been an alien lawfully admitted for permanent residence for
not less than 5 years, (2) has resided in the United States
continuously for 7 years after having been admitted in any status,
and (3) has not been convicted of any aggravated felony.
The statutory language clearly
indicates that it is within the
discretion of the Attorney General to grant cancellation of removal
to an alien who meets these three requirements.
In Matter of Edwards,
20 I&N Dec.191, 195-96 (BIA 1990), the BIA
clarified that the decision in Matter of Buscemi, 19 I&N Dec. 628
(BIA 1988), did not require an alien to satisfy a threshold test of
showing unusual or outstanding equities before the court would
apply a balancing test to consider whether a favorable exercise of
discretion is warranted. Indeed, the reference to a threshold test
in Matter of Buscemi was misleading, as it might be read to imply
that a full examination of an aliens equities can somehow be
pretermitted. Acomplete review of the favorable factors in the
case is required.
Consistent with clarifying
statements in Matter of Edwards, supra,
the BIA will not apply a threshold test in cancellation of removal cases.
Instead, it will weigh the favorable and adverse factors to
determine whether, on balance, the totality of the evidence
indicates that the respondent has adequately demonstrated that he
warrants a favorable exercise of discretion and a grant of
cancellation of removal under section 240A(a) of the Act. Matter of
C-V-T-, supra, at 10.
Here, the favorable factors
presented did not outweigh the
adverse factors of record. In particular, the respondents 1999
convictions and resulting prison sentence, as well as his repeated
disregard for lawful immigration procedures, as evidenced by his
participation in a criminal immigration scheme that involved a
number of individuals and included the acquisition of fraudulent
documents. Therefore, the Board agreed with the Immigration Judge
that the respondent does not merit a favorable exercise of
discretion. Cancellation of removal under section 240A(a) of the Act
was properly denied in this case.
In re Juana M. Moraga,
Beneficiary of visa petition filed by Adalberto
MORAGA, Petitioner, 23 I&N Dec. 195 (BIA 2001) Interim Decision #3459
A child born out of wedlock
in El Salvador on or after December
16, 1965, is placed in the same legal position as one born in
wedlock once the childs paternity is established and therefore
qualifies as a legitimated child under section 101(b)(1)(C) of
the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(C)
(1994). Matter of Ramirez, 16 I&N Dec. 222 (BIA 1977), modified.
In re G-Y-R-, 23 I&N
Dec. 181 (BIA 2001) Interim Decision #3458
(1) When an alien fails to appear at removal proceedings for which
notice of the hearing was served by mail, an in absentia order may
only be entered where the alien has received, or can be charged with
receiving, a Notice to Appear (Form I-862) informing the alien of
the statutory address obligations associated with removal
proceedings and of the consequences of failing to provide a current
address, pursuant to section 239(a)(1)(F) of the Immigration and
Nationality Act, 8 U.S.C. § 1229(a)(1)(F) (Supp. V 1999).
(2) Entry of an in absentia
order of removal is inappropriate where
the record reflects that the alien did not receive, or could not be
charged with receiving, the Notice to Appear that was served by
certified mail at an address obtained from documents filed with the
Immigration and Naturalization Service several years earlier.
In re Robin Juraine Crammond, 23 I&N Dec. 179 (BIA 2001)
(1) The Board of Immigration
Appeals lacks jurisdiction over a
motion to reopen where the motion is withdrawn, within the
meaning of 8 C.F.R. § 3.2(d) (2001), by the departure of the
alien from the United States prior to a ruling on the motion.
(2) When the Board is presented
with evidence that it has
granted a motion to reopen after the aliens departure from the
United States, it is appropriate to reconsider and vacate the
prior order on jurisdictional grounds. Matter of Crammond, 23
I&N Dec. 9 (BIA 2001), vacated.
8 C.F.R. § 3.2(d) (2001)
provides that [a]ny departure from the
United States, including the deportation or removal of a person who
is the subject of exclusion, deportation, or removal proceedings,
occurring after the filing of a motion to reopen or a motion to
reconsider, shall constitute a withdrawal of such motion.
The respondent in this case
departed from the United States and
returned to Belize on March 13, 2000.The BIA March 22, 2001,
decision in Matter of Crammond granted a motion to reopen that
had been filed by the respondent on February 1, 2000. The
Service argued that the respondents motion to reopen should be
deemed to have been abandoned as a result of his March 13, 2000,
departure from the United States, and that the BIA should vacate
the decision for lack of jurisdiction. Because the BIA rendered
its decision in Matter of Crammond after the respondents
departure, it lacked jurisdiction to adjudicate his motion to
reopen. Consequently, the BIA granted the Services motion to
reconsider based on lack of jurisdiction and vacated the March
22, 2001 decision in Matter of Crammond.
In re Cresencio Heriberto
Martínez-Recinos, 23 I&N Dec.175
(BIA 2001) Interim Decision #3456, October 15, 2001
A conviction for perjury
in violation of section 118(a) of the
California Penal Code constitutes a conviction for an aggravated
felony under section 101(a)(43)(S) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(43)(S) (Supp. V 1999).
Comparing section 118(a) of the California Penal Code to 18 U.S.C. §
1621, the BIA found that the provisions of each statute are
essentially the same. Consequently, the respondents violation of
the California statute was a crime of perjury.
The respondent applied for
adjustment of status under section 245 of
the Act. In order to be eligible for that relief he must establish
that he is admissible to the United States. The respondents
aggravated felony offense is also a crime involving moral turpitude,
which renders him inadmissible unless he receives a waiver under
Because the respondent was
previously admitted to the United States
as a lawful permanent resident and has been convicted of an
aggravated felony, he is ineligible for a waiver of inadmissibility
under section 212(h) of the Act. See Matter of Yeung, 21 I&N Dec.
610 (BIA 1996), Matter of Michel, 21 I&N Dec. 1101 (BIA 1998)
(finding that an alien who has not previously been admitted to the
United States as an alien lawfully admitted for permanent residence
is statutorily eligible for a waiver of inadmissibility under
section 212(h) of the Act).
In re Min Song, 23
I&N Dec. 173 (BIA 2001) ID #3455: Where a
criminal court vacated the 1-year prison sentence of an alien
convicted of a theft offense and revised the sentence to 360 days of
imprisonment, the alien does not have a conviction for an aggravated
felony within the meaning of section 101(a)(43)(G) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G).
Where an alien was resentenced
for a crime, the new sentence
determined whether the alien received a sentence to confinement for
a year or more and was therefore deportable under former section
241(a)(4) of the Act, 8 U.S.C. § 1251(a)(4) (1982). Matter of
Martin, 18 I&N Dec. 226 (BIA 1982) (terminating deportation
proceedings because the aliens sentence was modified to less than 1
year, rendering her not deportable). Decision in Matter of Roldan,
Interim Decision 3377 (BIA 1999), is not applicable here, because in
that case the BIA addressed only the definition of a conviction
contained in section 101(a)(48)(A) of the Act, 8 U.S.C. §
1101(a)(48)(A), not the definition of a term of imprisonment set
forth in section 101(a)(48)(B).
Here, the respondent is a
native and citizen of Korea who was
admitted to the United States as an immigrant in 1981, when he was
almost 8 years old. He admitted he was convicted in 1992, in
Maryland, of a theft offense, for which he was sentenced to 1 year
in prison. In April 1999, the Circuit Court for Montgomery County,
Maryland, vacated nunc pro tunc the district courts February 2,
1992, sentence in the criminal case and ordered the sentence revised
nunc pro tunc to 360 days, which was suspended. (he actually served
the year sentence!)
Matter of Rodriguez-Tejedor,
23 I&N Dec. 153 (BIA 2001) ID 3454: (1)
The automatic citizenship provisions of section 320 of the
Immigration and Nationality Act, 8 U.S.C. § 1431 (1994), as amended
by the Child Citizenship Act of 2000, Pub. L. No. 106-395, 114 Stat.
1631 ("CCA"), are not retroactive and, consequently, do not apply to
an individual who resided in the United States with his United
States citizen parents as a lawful permanent resident while under
the age of 18 years, but who was over the age of 18 years on the CCA
effective date. (2) The respondent, who resided in the United States
with his United States citizen adoptive parents as a lawful
permanent resident while under the age of 18 years, but who was over
the age of 18 years on the CCA effective date, is ineligible for
automatic citizenship under section 320 of the Act.
23 I&N Dec. 148 (BIA 2001) (July 3, 2001,
#3453) : Under United States v. Chapa-Garza, 243 F.3d 921 (5th Cir.
2001), and United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir.
2001), a Texas conviction for felony DWI not classifiable as a crime
of violence conviction under 18 U.S.C. § 16(b) (1994) for purposes
of removability in cases arising in the United States Court of
Appeals for the Fifth Circuit; accordingly, in cases arising in the
Fifth Circuit, Matter of Puente, Interim Decision 3412 (BIA 1999),
will not be applied.
Matter of Rojas, 23
I&N Dec. 117 (BIA 2001)(May 18, 2001) A criminal
alien who is released from criminal custody after the expiration of
the Transition Period Custody Rules is subject to mandatory
detention pursuant to section 236(c) of the Immigration and
Nationality Act, 8 U.S.C. § 1226(c) (Supp. V 1999), even if the
alien is not immediately taken into custody by the Immigration and
Naturalization Service when released from incarceration.
Matter of Artigas,
23 I&N Dec. 99 (BIA 2001) (Decided May 11, 2001)
An Immigration Judge has jurisdiction to adjudicate an application
for adjustment of status under the Cuban Refugee Adjustment Act of
November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended,
when the respondent is charged as an arriving alien without a valid
visa or entry document in removal proceedings.
Matter of Patino,
23 I&N Dec. 74 (BIA 2001) (Decided May 9, 2001) A
party wishing to challenge the validity of an appeal waiver may file
either a motion to reconsider with the Immigration Judge or an
appeal directly with the Board of Immigration Appeals.
Matter of Torres-Varela,
23 I&N Dec. 78 (BIA 2001) (Decided May 9,
2001) Under Arizona law, the offense of aggravated driving under the
influence ("DUI") with two or more prior DUI convictions is not a
crime involving moral turpitude.
Matter of Monreal,
23 I&N Dec. 56 (BIA 2001) (Decided May 4, 2001)
(1) To establish exceptional and extremely unusual hardship, an
applicant for cancellation of removal under section 240A(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (Supp. V 1999),
must demonstrate that his or her spouse, parent, or child would
suffer hardship that is substantially beyond that which would
ordinarily be expected to result from the aliens deportation, but
need not show that such hardship would be unconscionable. (2)
Although many of the factors that were considered in assessing
extreme hardship for suspension of deportation should also be
considered in evaluating exceptional and extremely unusual
hardship, an applicant for cancellation of removal must demonstrate
hardship beyond that which has historically been required in
suspension of deportation cases involving the extreme hardship
standard. (3) In establishing eligibility for cancellation of
removal, only hardship to qualifying relatives, not to the applicant
himself or herself, may be considered, and hardship factors relating
to the applicant may be considered only insofar as they might affect
the hardship to a qualifying relative.
Matter of Kao & Lin,
23 I&N Dec. 45 (BIA 2001) (Decided May 4, 2001)
(1) In evaluating an application for suspension of deportation, the
hardship to the applicants United States citizen child must be
given careful consideration, as the applicants eligibility for
relief may be established by demonstrating that his or her
deportation would result in extreme hardship to the child. (2) The
standard for determining extreme hardship in applications for
suspension of deportation is also applied in adjudicating petitions
for immigrant status under section 204(a)(1) of the Immigration and
Nationality Act, 8 U.S.C. § 1154(a)(1) (1994 & Supp. V 1999), as
amended, and waivers of inadmissibility under section 212(i) of the
Act, 8 U.S.C. § 1182(i) (Supp. V 1999). (3) The respondents met the
extreme hardship requirement for suspension of deportation where
their oldest daughter, who is a 15-year-old United States citizen,
has spent her entire life in the United States, has been completely
integrated into the American lifestyle, and is not sufficiently
fluent in the Chinese language to make an adequate transition to
daily life in her parents native country of Taiwan. Matter of
Pilch, 21 I&N Dec. 627 (BIA 1996), distinguished.
In re Robin Juraine CRAMMOND,
23 I&N Dec. 9 (BIA 2001) Decided March
22, 2001 (1) A conviction for murder, rape, or sexual abuse of a
minor must be for a felony offense in order for the crime to be
considered an aggravated felony under section 101(a)(43)(A) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (Supp. V
1999). (2) In determining whether a state conviction is for a felony
offense for immigration purposes, the Board of Immigration Appeals
applies the federal definition of a felony set forth at 18 U.S.C. §
In re Goolcharan,
23 I&N Dec. 5 (BIA 2001), 2/1/01 06-Feb-01 The
regulatory deadline for filing a motion to reopen or motion to
reconsider before the IJ is determined by the date on which the IJ
entered a final administrative order, and the regulatory deadline is
not affected by subsequent actions taken by the INS in the course of
executing the IJs order.
In re Oparah, Int.
Dec. 3441 (BIA, Dec. 15, 2000) 12/18/00. A motion
to remand submitted during the pendency of an appeal from an IJ's
denial of an untimely motion to reopen and filed after the entry of
a final administrative decision does not cure the untimeliness of
the initial motion to reopen.
In re Vasquez-Muniz,
Int. Dec. 3440 (BIA, 12/1/00) 12/5/00.
Possession of a firearm by a felon in violation of €12021(a)(1) of
the California Penal Code is not an aggravated felony under
Sec.101(a)(43)(E) of the INA, 8 USCSec. 1101(a)(43)(E) (1994),
because it is not an offense "described in" 18 USC Sec. 922(g)(1)
In re Davis, Int.
Dec. 3439 (BIA, November 2, 2000). A respondent in
the 2nd Circuit whose deportation proceedings were pending on
4/24/96 is not subject to the changes made to Sec.212(c) by Sec.
440(d); a respondent convicted of an aggravated felony serving more
than 5 years is barred from Sec.212(c) waiver eligibility if
Sec.440(d) is inapplicable to him.
In re West, Int. Dec.
3438 (BIA, October 26, 2000) The mandatory
detention provisions of INA Sec.236(c) do not apply to an alien who
was convicted after expiration of the Transition Period Custody
Rules, but who was released from custody prior to the expiration of
the Rules, and who was not physically confined or restrained as a
result of that conviction.
In re BAHTA, Int.
Dec. 3437 (October 4, 2000). Respondent's
conviction for attempted possession of stolen property is a
conviction for an attempted theft offense, and therefore an
aggravated felony, pursuant to INA Sec.101(a)(43)(G) and (U). The
INS retains prosecutorial discretion to decide whether to remove a
respondent subsequent to IIRAIRA.
In re RODRIGUEZ-RUIZ,
Int. Dec. 3436 (BIA, Sept. 22, 2000). A
conviction that has been vacated pursuant to Article 440 of the New
York Criminal Procedure Law does not constitute a conviction for
immigration purposes within the meaning of Sec.101(a)(48)(A) of the
INA, 8 USC Sec.1101(a)(48)(A) (Supp. IV 1998). Matter of Roldan,
Int. Dec. 3377 (BIA 1999), distinguished. In re Devison-Charles,
Int. Dec. 3435 (September 12, 2000). Under New York Law, the
resentencing of a youthful offender following a violation of
probation does not convert the youthful offender adjudication into a
judgment of conviction.
In re V-Z-S-, Int.
Dec. 3434 (BIA, August 1, 2000) The
respondent's conviction for unlawful driving and taking of a
vehicle in violation of Sec.10851 of the California Vehicle Code
is a 'theft offense' under INA Sec.101(a)(43)(G) even though the
taking was not intended to be permanent.
In re S-A-, Int. Dec.
3433 (BIA, June 27, 2000) A woman with liberal
Muslim beliefs had established by credible evidence that she had
suffered past persecution and has a well-founded fear of future
persecution at the hands of her father because of her father's
orthodox Muslim views concerning the proper role of women in
In re Perez, Int.
Dec. No. 3432 (BIA, June 6, 2000) The offense
of burglary of a vehicle in violation of Sec. 30.04(a) of the Texas
Penal Code is not a "burglary offense" within the definition of
an aggravated felony in Sec.101(a)(43)(G) of the Immigration and
Nationality Act, 8 USC Sec.1101(a)(43)(G) (Supp. IV 1998).
In re Rodriguez-Diaz,
Int. Dec. 3431 (BIA, May 18, 2000). A pro se
alien who accepts an immigration judge's decision as "final" does
not effectively waive the right to appeal where the judge failed to
make clear that such acceptance constitutes an irrevocable waiver of
appeal rights; therefore, the BIA has jurisdiction to consider the
In re S-V--, Int.
Dec. 3430 (BIA May, 9, 2000). Under Article 3 of
the U. N. Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, an applicant for protection must
establish that the torture feared would be inflicted by or with the
acquiescence of a public official or other person acting in an
In re Ocampo-Ugalde,
Int. Dec. 3429 (BIA, March 24, 2000). Voluntary
departure may not be granted prior to the completion of removal
proceedings without an express waiver of the right to appeal by the
alien or the alien's representative.
In re Ignacio Campos-Torres,
Int. Dec. 3428 (BIA, 3/21/00.)A
firearms offense that renders an alien removable under
Sec.237(a)(2)(C) of the INA, is not one "referred to in
Sec.212(a)(2)" and thus does not stop the further accrual of
continuous residence or continuous physical presence for purposes of
establishing eligibility for cancellation of removal.
In Re Saelee, Int.
Dec. 3427 (BIA, February 25, 2000). The BIA has
upheld a district director's determination to continue
post-deportation order detention, after first holding that it had
jurisdiction over the respondentÕs appeal, and that the respondent
was eligible for release under INA Sec.241 (a)(6).
In re Mendoza-Sandino
et al., Int. Dec. 3426 (BIA, 2/23/00). The BIA
has ruled that an alien may not accrue the requisite seven years of
continuous physical presence for suspension of deportation after
service of the Order to Show Cause and Notice of Hearing, since
service of the Order to Show Cause ends continuous physical
In re Gary Fitzroy Beckford,
Int. Dec. 3425 (BIA 1/19/00). Where an
alien has filed an untimely motion to reopen alleging that the INS
failed to prove the alien's removability, the burden of proof no
longer lies with the INS but shifts to the alien to demonstrate that
an exceptional situation exists to warrant the BIA to reopen on its
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