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BIA Decisions - Volume
24 |
(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Matter of Artigas, 23 I&N Dec. 99 (BIA 2001), superseded.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. 544 (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).
(ID
3606)
Matter of
KODWO, 24 I&N Dec. 479
(BIA 2008)
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.
(ID
3605)
Matter of
S-K-, 24 I&N Dec. 475
(BIA 2008)
(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.
(ID
3604)
Matter of
GONZALEZ-MURO, 24 I&N Dec. 472 (BIA 2008)
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.
(ID
3603)
Matter of
BAIRES-Larios, 24 I&N Dec. 467 (BIA 2008)
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.
(ID
3602)
Matter of
S-A-K- & H-A-H-, 24 I&N Dec. 464 (BIA 2008)
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.
(ID
3601)
Matter of
CABRERA, 24 I&N Dec. 459 (BIA 2008)
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).
(ID
3600)
Matter of
ARUNA, 24 I&N Dec. 452
(BIA 2008)
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).
(ID
3599)
Matter of
D-I-M-, 24 I&N Dec. 448
(BIA 2008)
(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.
(ID
3598)
Matter of
Kelly, 24 I&N Dec. 446
(BIA 2008)
(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.
(ID
3597)
Matter of
ANIFOWOSHE, 24 I&N Dec. 442 (BIA 2008)
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.
(ID
3596)
Matter of
GARCIA-MADRUGA, 24 I&N Dec. 436 (BIA
2008)
(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.
(ID 3595)
Matter of
I-S- & C-S-, 24 I&N Dec. 432 (BIA 2008)
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.
(ID 3594)
Matter of
MARTINEZ-ZAPATA, 24 I&N Dec. 424 (BIA 2007)
(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.
(ID 3593)
THOMAS, 24 I&N Dec. 416 (BIA 2007)
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.
(ID 3592)
CARACHURI-ROSENDO, 24 I&N Dec. 382 (BIA 2007)
(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.
(ID 3591)
Matter of LEMUS, 24 I&N Dec. 373 (BIA 2007)
(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.
(ID 3590)
Matter of BRIONES, 24 I&N Dec. 355 (BIA 2007)
(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.
(ID 3589)
Matter of C-W-L-, 24 I&N Dec. 346 (BIA 2007)
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.
(ID 3588)
Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007)
(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.
(ID 3587)
Matter of
SINGH, 24 I&N Dec. 331
(BIA 2007)
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.
(ID 3586)
Matter of
S-I-K-, 24 I&N Dec. 324
(BIA 2007)
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.
(ID 3585)
Matter of
BABAISAKOV, 24 I&N Dec. 306 (BIA 2007)
(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.
(ID
3584)
Matter of
A-T-, 24 I&N Dec. 296
(BIA 2007) vacated by Matter of
A-T-, 24 I&N Dec. 617 (A.G. 2008)
(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.
(ID
3583)
Matter of
JEAN-JOSEPH, 24 I&N Dec. 294 (BIA 2007)
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.
(ID
3582)
Matter of
Krovonos, 24 I&N Dec. 292 (BIA 2007)
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.
(ID
3581)
Matter of
S-K-, 24 I&N Dec. 289
(AG 2007)
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.
(ID
3580)
Matter of
SHAH, 24 I&N Dec. 282
(BIA 2007)
(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.
(ID 3579)
Matter of
A-K, 24 I&N Dec. 275
(BIA 2007)
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.
(ID 3578)
Matter of
CHAVEZ-Martinez, 24 I&N Dec. 272 (BIA
2007)
(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.
(ID
3577)
Matter of
Jara RIERO and Jara ESPINOL, 24 I&N Dec. 267 (BIA 2007)
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).
(ID 3576)
Matter of
J-Y-C, 24
I&N Dec. 260 (BIA 2007)
(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.
(ID
3575)
Matter of
S-Y-G-, 24 I&N Dec. 247
(BIA 2007)
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.
(ID
3574)
Matter of
SOLON, 24 I&N Dec. 239
(BIA 2007)
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.
(ID
3573)
Matter of
SEJAS, 24 I&N Dec. 236
(BIA 2007)
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.
(ID
3572)
Matter of
ESCOBAR, 24 I&N Dec. 231 (BIA 2007)
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).
(ID
3571)
Matter of
R-D-, 24 I&N Dec. 221
(BIA 2007)
(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).
(ID
3570)
Matter of
GONZALEZ-SILVA, 24 I&N Dec. 218 (BIA 2007)
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).
(ID
3569)
Matter of
J-B-N- & S-M-, 24 I&N Dec. 208 (BIA 2007)
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.
(ID
3568)
Matter of
ABOSI, 24 I&N Dec. 204 (BIA
2007)
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).
(ID
3567)
Matter of
J-H-S-, 24 I&N Dec. 196
(BIA 2007)
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.
(ID
3566)
Matter of
J-W-S-, 24 I&N Dec. 185
(BIA 2007)
(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.
(ID
3565)
Matter of
GARCIA, 24 I&N Dec. 179 (BIA
2007)
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.
(ID
3564)
Matter of
T-Z-, 24 I&N Dec. 163
(BIA 2007)
(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.
(ID
3563)
Matter of
Y-L-, 24 I&N Dec. 151 (BIA
2007)
(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.
(ID
3562)
Matter of
TOBAR-LOBO, 24 I&N Dec. 143 (BIA 2007)
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.
(ID
3561)
Matter of
M-D-, 24 I&N Dec. 138
(BIA 2007)
(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.
(ID
3560)
Matter of
K-R-Y- & K-C-S-, 24 I&N Dec. 133
(BIA 2007)
(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.
(ID 3559)
Matter of
KOCHLANI, 24 I&N Dec. 128 (BIA 2007)
The
offense
of trafficking in counterfeit goods or services in violation of 18 U.S.C. § 2320
(2000) is a crime involving moral turpitude.
(ID
3558)
Matter of
KOTLIAR-, 24 I&N Dec. 124
(BIA 2007)
(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.
(ID
3557)
Matter of
W-C-B-, 24 I&N Dec. 118 (BIA 2007)
(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.
(ID
3556)
Matter of
GERTSENSHTEYN, 24 I&N Dec. 111 (BIA 2007)
(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.
(ID
3555)
Matter of ACOSTA
HIDALGO, 24 I&N Dec. 103 (BIA
2007)
(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.
(ID
3553)
Matter of
Mahesh Nenumal TEJWANI, 24 I&N Dec. 97 (BIA 2007)
The offense of
money laundering in violation of section 470.10(1) of the New York Penal Law is
a crime involving moral turpitude.
(ID
3552)
Matter of
Bozena ZMIJEWSKA, 24 I&N Dec. 87 (BIA 2007)
(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.
(ID
3551)
Matter of
Rodolfo AVILA-PEREZ, 24 I&N Dec. 78 (BIA 2007)
(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.
(ID
3550)
Matter of
A-M-E & J-G-U-,24 I&N Dec. 69 (BIA 2007)
(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.
(ID
3549)
Matter of
MONCADA-Servellon, 24 I&N Dec. 62 (BIA 2007)
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.
(ID
3548)
Matter of
O-S-G-, 24 I&N Dec. 56 (BIA 2006)
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.
(ID
3547)
Matter of
TRUONG, 24 I&N Dec. 52 (BIA 2006)
(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.
(ID 3546)
Matter of
DIAZ-RUACHO, 24 I&N Dec. 47 (BIA 2006)
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.
(ID
3545)
Matter of S-B-,
24 I&N
Dec. 42 (BIA 2006)
(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.
(ID
3544)
Matter of
GUERRA, 24
I&N Dec. 37 (BIA
2006)
(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.
(ID
3543)
Matter of
JURADO, 24
I&N Dec. 29 (BIA
2006)
(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.
(ID
3542)
Matter of
ROBLES, 24 I&N Dec. 22 (BIA
2006)
(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.
Jacobson & Han LLP
Los
Angeles Immigration Lawyer
U.S.
Immigration Lawyer