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2011

  • OCAHO Reduces Penalties Assessed Against Small Day Care Center(482 KB - 9/22/2011)
    OCAHO reduced penalties from $55,352 to $18,500 where the employer failed to complete I-9s for 74 employees, but all were authorized, there were no prior violations, and the penalties were disproportionate to the employer’s resources. (U.S. v. Ice Castles, 9/22/11). AILA Doc. No. 11092235.
    AILA Doc. No. 11092235.
  • BIA Grants Cancellation of Removal to Mother of Four(605 KB - 12/28/2011)
    In an unpublished decision, the BIA found that exceptional and extremely unusual hardship would result to the respondent’s four young children if she was removed, noting the respondent would lose her job and support network and had no savings. Courtesy of Campbell Cooke.
    AILA Doc. No. 11122836.
  • BIA Finds NTA Without Hearing Date Triggers “Stop-Time” Rule(42 KB - 12/16/2011)
    The Board found that any period of continuous residence or continuous physical presence ends upon service of an NTA on the alien, even if the NTA does not include the date and time of the initial hearing. Matter of Camarillo, 25 I&N 644 (BIA 2011) AILA Doc. No. 11121661.
    AILA Doc. No. 11121661.
  • BIA Says Adjustment under Cuban Refugee Adjustment Act Is an Admission(19 KB - 12/16/2011)
    The Board found the respondent was admitted to the U.S. when he adjusted status under the Cuban Adjustment Act, and was thus subject to removal under INA § 237(a) following a drug trafficking conviction. Matter of Espinosa Guillot, 25 I&N Dec. 653 (BIA 2011) AILA Doc. No. 11121660.
    AILA Doc. No. 11121660.
  • OCAHO Reduces Penalties Assessed against California Tech Company(45 KB - 12/6/2011)
    OCAHO found that the respondent engaged in 62 separate violations of INA §274A, but based on the record as a whole, and upon consideration of the statutory factors, reduced the civil money penalties from $63,737 to $43,000 (U.S. v. Alyn Industries, 8/17/11) AILA Doc. No. 11120670.
    AILA Doc. No. 11120670.
  • OCAHO Finds Employment Application Facially Discriminatory(51 KB - 12/6/2011)
    OCAHO held that the respondent’s employment application was facially discriminatory because it divided applications based on U.S. citizenship, but that there was no reasonable possibility the complainant would have been interviewed or hired. (Eze v. WTCA, 10/27/11) AILA Doc. No. 11120669.
    AILA Doc. No. 11120669.
  • BIA on Analyzing “Single Scheme” CIMTs(33 KB - 12/6/2011)
    The BIA held that in determining whether an alien’s convictions for two or more CIMTs arose out of a single scheme, the Board’s analysis in Adetiba is controlling and should be uniformly applied in all circuits. Matter of Islam, 25 I&N Dec. 637 (BIA 2011) AILA Doc. No. 11122067.
    AILA Doc. No. 11122067.
  • BIA Applies Stop-Time Rule Where NTA Did Not Include Hearing Date/Time(42 KB - 12/6/2011)
    The BIA held that the continuous residence/presence of an alien applying for cancellation ends under the stop-time rule upon service of an NTA, even if the NTA does not include the date and time of the initial hearing. Matter of Camarillo, 25 I&N Dec. 644 (BIA 2011) AILA Doc. No. 11120666.
    AILA Doc. No. 11120666.
  • BIA Says Rhode Island Solicitation of Assault Is an Aggravated Felony(31 KB - 12/6/2011)
    The BIA held that solicitation of assault with a dangerous weapon, RI Gen. Laws §11-1-9, is an aggravated felony crime of violence, but is not an aggravated felony attempt or conspiracy offense under INA §101(a)(43)(U). Matter of Guerrero, 25 I&N Dec. 631 (BIA 2011) AILA Doc. No. 11120665.
    AILA Doc. No. 11120665.
  • BIA on Burden of Proof and Returning LPRs(40 KB - 12/6/2011)
    The BIA held that to establish that a returning LPR is to be treated as an applicant for admission, the government has the burden of proving by clear and convincing evidence that a §101(a)(13)(C) exceptions applies. Matter of Rivens, 25 I&N Dec. 623 (BIA 2011) AILA Doc. No. 11120664.
    AILA Doc. No. 11120664.
  • BIA Remands Mali FGM Asylum Claim(602 KB - 11/15/2011)
    The BIA found exceptional circumstances to permit respondent’s late-filed asylum application, reversed the IJ’s finding that DHS rebutted the well-founded fear presumption, and found that the IJ failed to follow Matter of A-T-. Courtesy of Geoffrey A. Hoffman. AILA Doc. No. 11111548.
    AILA Doc. No. 11111548.
  • BIA Reverses Adverse Credibility in Sexual Orientation Withholding/CAT Claim from Mexico(231 KB - 10/31/2011)
    The BIA reversed the IJ’s adverse credibility finding, holding that the respondent’s mistreatment constitutes past persecution on account of a protected ground, and sustained the appeal for withholding of removal under the Act and the CAT. Courtesy of Edgardo Quintanilla. AILA Doc. No. 11103149.
    AILA Doc. No. 11103149.
  • BIA Deems NY Third-Degree Attempted Arson an Aggravated Felony(57 KB - 10/17/2011)
    The BIA found that third degree attempted arson in violation of NY Pen. Law §§110 and 150.10 is an aggravated felony under INA §101(a)(43)(E)(i), even though it lacks the jurisdictional element in the federal offense. Matter of Bautista, 25 I&N Dec. 616 (BIA 2011) AILA Doc. No. 11101732.
    AILA Doc. No. 11101732.
  • OCAHO Assesses Penalties against Washington Drywall Company for I-9 Violations(153 KB - 10/6/2011)
    OCAHO found that Respondent engaged in 225 separate violations of INA §274A(b) and assessed penalties in the amount of $770 per violation for total penalties of $173,250. (U.S. v. Ketchikan Drywall Services, Inc., 8/11/11) AILA Doc. No. 11100625.
    AILA Doc. No. 11100625.
  • IJ Grants Asylum in Gang-Related Case(4095 KB - 8/22/2011)
    In an unpublished 8/22/11 decision, the IJ found the respondent qualified for asylum as a victim of past persecution on account of her identity as an “immediate relative of Salvadorian police officers involved in anti-gang efforts.” Courtesy of Alexander Miller. AILA Doc. No. 11082280.
    AILA Doc. No. 11082280.
  • BIA on 5-Year Statute of Limitations for Rescission of LPR Status(65 KB - 10/6/2011)
    The BIA held that the 5-year statute of limitations in §246(a) does not bar removal of an alien admitted on an immigrant visa because that section relates only to rescission of LPR status acquired through adjustment. Matter of Cruz de Ortiz, 25 I&N Dec. 601 (BIA 2011) AILA Doc. No. 11100624.
    AILA Doc. No. 11100624.
  • BIA Says IJ Scope of TPS Review Is Not Limited to Evidence Submitted to USCIS(48 KB - 9/26/2011)
    The BIA held that the IJ may consider any material and relevant evidence in support of a TPS application that is renewed in removal proceedings, regardless of whether the evidence was previously considered by USCIS. Matter of Figueroa, 25 I&N Dec. 596 (BIA 2011) AILA Doc. No. 11092630.
    AILA Doc. No. 11092630.
  • BIA Says IJ Scope of I-751 Review Is Not Limited to Evidence Submitted to DHS(28 KB - 9/22/2011)
    The BIA held that the IJ should consider new evidence submitted in support of a renewed I-751 with a waiver of the joint filing requirement regardless of whether the evidence was previously considered by DHS. Matter of Herrera Del Orden, 25 I&N Dec. 589 (BIA 2011) AILA Doc. No. 11092260.
    AILA Doc. No. 11092260.
  • BIA Refuses to Apply Frivolous Asylum Bar to Derivative Child(207 KB - 9/14/2011)
    In an unpublished decision, the BIA found that as the minor derivative of her mother's application, the respondent did not receive the necessary advisals, and held that the frivolousness finding applicable to her mother should not be applicable to her. Courtesy of Alan Lee. AILA Doc. No. 11091430.
    AILA Doc. No. 11091430.
  • OCAHO Assesses Penalties against Subway Franchise for I-9 Violations(705 KB - 8/30/2011)
    OCAHO ordered the respondent to pay $28,150 in civil penalties for failure to prepare and/or properly complete I-9 forms, finding that the penalties sought by ICE were disproportionate to the company’s size and resources. (U.S. v. Teelah Inc., 12/22/2010) AILA Doc. No. 11083065.
    AILA Doc. No. 11083065.
  • The BIA on Production of TPS Application in Proceedings(48 KB - 8/12/2011)
    When an application for TPS that has been denied by USCIS is renewed in removal proceedings, the IJ may, in the appropriate circumstances, require DHS to provide the application that the applicant filed with USCIS. Matter of Rivera, 25 I&N Dec. 575 (BIA 2011) AILA Doc. No. 11081231.
    AILA Doc. No. 11081231.
  • The BIA on Obligation of Immigration Officers to Advise on Right to Counsel(59 KB - 8/11/2011)
    Where an alien is arrested without a warrant, the obligation to advise of the right to counsel does not attach until proceedings are commenced and any statements made during interrogation may be used against him. Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011) AILA Doc. No. 11081136.
    AILA Doc. No. 11081136.
  • BIA on Changed Circumstances and the One-Year Asylum Deadline(147 KB - 7/26/2011)
    In an unpublished decision, the BIA found that Respondent’s discovery of his HIV status was a changed circumstance excusing the late filing. The BIA also noted that an approved labor certification would qualify as an extraordinary circumstance. Courtesy of Paul O’Dwyer. AILA Doc. No. 11072631.
    AILA Doc. No. 11072631.
  • BIA Finds California Assault Statute Is an Aggravated Felony Crime of Violence(214 KB - 7/25/2011)
    The BIA held that assault with the intent to commit a felony in violation of Cal. Penal Code section 220 is categorically a crime of violence under 18 USC §16, and is therefore an aggravated felony. Matter of Martinez, 25 I&N Dec. 571 (BIA 2011) AILA Doc. No. 11072563.
    AILA Doc. No. 11072563.
  • BIA Remands, Orders Consideration of Worsening Conditions for Christians in Iraq(312 KB - 7/20/2011)
    In an unpublished and redacted decision, the BIA found that conditions in Iraq have changed to such an extent since the respondent’s prior removal hearing that the proceeding should be reopened to consider her application for asylum. Courtesy of Steven N. Garmo. AILA Doc. No. 11072071.
    AILA Doc. No. 11072071.
  • BIA Says §212(h) Cannot Waive Conviction for Purposes of Cancellation Eligibility(24 KB - 7/15/2011)
    The BIA concluded that INA §212(h) cannot waive the effect of a conviction for a controlled substance violation to overcome the bar to cancellation of removal under §240A(b)(1)(C), and dismissed the appeal. Matter of Bustamante, 25 I&N Dec. 564 (BIA 2011)
    AILA Doc. No. 11071575.
  • BIA Says Maximum Possible Sentence Determines Eligibility for Petty Offense Exception(30 KB - 7/15/2011)
    The BIA found that the maximum possible sentence for an offense, rather than the standard range under the State's sentencing guidelines, determines an alien's eligibility for the petty offense exception. Matter of Ruiz-Lopez, 25 I&N Dec. 551 (BIA 2011)
    AILA Doc. No. 11071574.
  • BIA Finds Attorney’s 6-Month Suspension Justified(20 KB - 7/15/2011)
    The BIA granted EOIR’s motion for summary adjudication, and found that nonidentical reciprocal discipline of an attorney does not amount to “grave injustice” where the attorney has engaged in wide-ranging misconduct. Matter of Salomon, 25 I&N Dec. 559 (BIA 2011) AILA Doc. No. 11071572.
    AILA Doc. No. 11071572.
  • Baltimore IJ Reopens Sua Sponte; Asks Parties to Address DOMA Issues(220 KB - 7/7/2011)
    The IJ reopened proceedings to hear additional evidence in support of withholding of removal and directed the parties to address recent developments relating to the ability of same-sex spouses to benefit from visa petitions at the master hearing. Courtesy of Lavi S. Soloway. AILA Doc. No. 11070760.
    AILA Doc. No. 11070760.
  • BIA Remands for Further Fact Finding in Domestic Violence Asylum Case(576 KB - 6/28/2011)
    In an unpublished decision, the BIA remanded for entry of a new decision, calling for further factual development and arguments specific to the gender-based asylum claim, consistent with the Attorney General’s directive in Matter of R-A-. Courtesy of Aleksander Milch. AILA Doc. No. 11062864.
    AILA Doc. No. 11062864.
  • BIA Addresses Whistleblowing as a Basis for Asylum(34 KB - 6/28/2011)
    The BIA found that retaliation for opposition to state corruption may form the basis for a claim based on political opinion if, post-REAL ID, the actual or imputed anti-corruption belief was one central reason for the harm. Matter of N-M-, 25 I&N Dec. 526 (BIA 2011) AILA Doc. No. 11062862.
    AILA Doc. No. 11062862.
  • BIA Addresses K-2 Age Out Eligibility for Adjustment of Status(37 KB - 6/24/2011)
    The BIA concluded that the derivative child of a fiancée visa holder is not ineligible for adjustment of status simply by virtue of having turned 21 after admission to the U.S. on a K-2 visa. Matter of Le, 25 I&N Dec. 541 (BIA 2011) AILA Doc. No. 11062465.
    AILA Doc. No. 11062465.
  • BIA on Derivative Eligibility for Late Initial TPS Registration(24 KB - 6/24/2011)
    The BIA held that an applicant for late initial TPS registration filing as the child of a TPS eligible alien need only establish that he or she qualified as a child at the time of the initial registration period. Matter of N-C-M-, 25 I&N Dec. 535 (BIA 2011) AILA Doc. No. 11062464.
    AILA Doc. No. 11062464.
  • BIA Says Arriving Aliens Subject to Expedited Removal May Be Placed in §240 Proceedings(50 KB - 6/9/2011)
    The BIA found that DHS has the discretion to place arriving aliens in removal proceedings under INA §240, even if they may also be subject to expedited removal under INA §235(b)(1)(A)(i). Matter of E-R-M- & L-R-M, 25 I&N Dec. 520 (BIA 2011) AILA Doc. No. 11060932.
    AILA Doc. No. 11060932.
  • BIA Dismisses Appeal of Derivative Spouse Who Cannot Independently Qualify for TPS(59 KB - 6/9/2011)
    The BIA held that an alien seeking TPS as a derivative spouse must be from a state designated for TPS eligibility and found that the IJ properly denied the respondent’s application for TPS as a late initial registrant. Matter of Echeverria, 25 I&N Dec. 512 (BIA 2011) AILA Doc. No. 11060931.
    AILA Doc. No. 11060931.
  • BIA Finds Conviction for Violating Kansas No-Contact Provision Is a Removable Offense(20 KB - 6/9/2011)
    The BIA found that a conviction for violation of the no-contact provision of a protection order issued under the Kansas Protection from Abuse Act constitutes a removable offense under INA §237(a)(2)(E)(ii). Matter of Strydom, 25 I&N Dec. 507 (BIA 2011) AILA Doc. No. 11060967.
    AILA Doc. No. 11060967.
  • BIA Sets Forth Framework for Firm Resettlement Findings(117 KB - 5/16/2011)
    The BIA set forth a framework for firm resettlement determinations, focusing exclusively on the existence of an offer of permanent resettlement, and allowing for the consideration of direct and indirect evidence. Matter of A-G-G, 25 I&N Dec. 486 (BIA 2011) AILA Doc. No. 11051662.
    AILA Doc. No. 11051662.
  • OCAHO Says Reporting Unauthorized Workers Is Not Protected Under INA §274B(18 KB - 5/13/2011)
    OCAHO found that there is no cause of action under INA §274B(a)(5), where the employee alleges retaliation for reporting the presence of undocumented workers or other violations that fall under INA §274A. (Cavazos v. Wanxiang, 4/27/11) AILA Doc. No. 11031370.
    AILA Doc. No. 11051370.
  • BIA Provides Framework for Assessing Mental Competency (Updated 5/13/11)(37 KB - 5/13/2011)
    The BIA set forth a framework to assess the competency of respondents in proceedings and remanded, finding good cause to believe Respondent was not competent to proceed. Courtesy of the Univ. of Houston Immigration Clinic. Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011) AILA Doc. No. 11050960.
    AILA Doc. No. 11050960.
  • AG Exercises Review Authority in DOMA Case(11 KB - 5/5/2011)
    The AG vacated the BIA’s order and remanded the matter to the BIA to determine whether and how the constitutionality of the Defense of Marriage Act impacts respondent’s eligibility for cancellation of removal. Matter of Dorman, 25 I&N Dec. 485 (AG 2011)
    AILA Doc. No. 11050565.
  • BIA Says Personal Service of NTA on Minor Was Effective(19 KB - 5/3/2011)
    The BIA held that service of an NTA on a minor 14 years of age or older at the time of service is effective, even though notice was not also served on an adult with responsibility for the minor. Matter of Cubor-Cruz, 25 I&N Dec. 470 (BIA 2011)
    AILA Doc. No. 11050365.
  • BIA Vacates IJ Decision, Finds IJ Made "Inappropriate Remarks"(371 KB - 5/3/2011)
    The BIA found that inappropriate remarks by the IJ called the fairness of the proceedings into question, and that the IJ's finding that the respondent's claims were frivolous did not comport with prior BIA precedent. Courtesy of Christopher Helt. AILA Doc. No. 11050362.
    AILA Doc. No. 11050362.
  • BIA Finds 212(h) Bars Do Not Apply to Applicants Admitted as Conditional LPRs (4/20/2011)
    Unpublished BIA decision finds LPR eligible for 212(h) waiver despite aggravated felony conviction because he was initially admitted as a conditional LPR. (Matter of Mata, 4/20/11) Special thanks to IRAC.
    AILA Doc. No. 11042059.
  • BIA Remands, Says IJs May Not “Leap Frog” Over Step 2 of Silva-Trevino(48 KB - 4/20/2011)
    The BIA held that evidence outside the record of conviction may only be considered in determining whether a conviction is a CIMT when the record itself does not conclusively answer that question. Matter of Ahortalejo-Guzman, 25 I&N Dec. 465 (BIA 2011)
    AILA Doc. No. 11042033.
  • BIA Says IJ's Conclusions on Extrajudicial Killing Were Not Speculative(99 KB - 4/14/2011)
    The BIA found that an IJ may make reasonable inferences from direct and circumstantial evidence, and is not required to accept respondent's account where other plausible views of the evidence are supported by the record. Matter of D-R-, 25 I&N Dec. 445 (BIA 2011) AILA Doc. No. 11041466.
    AILA Doc. No. 11041466.
  • IJ Says Aged-Out K-2 May Proceed with Adjustment of Status(5092 KB - 4/4/2011)
    The IJ found that the respondent, who entered the U.S. on a K-2 visa and turned 21 before filing for adjustment of status based on her mother’s marriage to the petitioning U.S. citizen, is nonetheless eligible for adjustment. Courtesy of Jeremy McKinney. AILA Doc. No. 11040461.
    AILA Doc. No. 11040461.
  • BIA on Adjustment of Status for K-1 Nonimmigrants(42 KB - 3/22/2011)
    The BIA held that an alien who enters on a K-1 visa and timely enters into a bona fide marriage with the petitioning spouse, remains eligible to adjust status under INA §245(a) despite termination of the marriage. Matter of Sesay, 25 I&N Dec. 431 (BIA 2011) AILA Doc. No. 11032262.
    AILA Doc. No. 11032262.
  • BIA on "Attempt" as a Crime Involving Moral Turpitude(76 KB - 3/7/2011)
    Where the offense underlying a conviction for attempt is a CIMT, the alien is considered to have been convicted of a CIMT for purposes of INA §237(a)(2)(A), even though that section makes no reference to attempt offenses. Matter of Vo, 25 I&N Dec. 426 (BIA 2011) AILA Doc. No. 11030734.
    AILA Doc. No. 11030734.
  • BIA Remands for Analysis of Third Silva-Trevino Step(32 KB - 2/25/2011)
    The BIA held that absent otherwise controlling authority, IJs and the BIA are bound to apply all three steps of the Silva-Trevino methodology for determining whether an offense constitutes a CIMT. Matter of Guevara Alfaro, 25 I&N Dec. 417 (BIA 2011) AILA Doc. No. 11022564.
    AILA Doc. No. 11022564.
  • BIA On Cancellation of Removal Stop-Time Rule(25 KB - 2/18/2011)
    The BIA held that when continuous residence stops upon commission of an offense pursuant to INA §240A(d)(1), the accrual of continuous residence does not restart upon the alien’s departure and re-entry into the U.S. Matter of Nelson, 25 I&N Dec. 410 (BIA 2011)
    AILA Doc. No. 11021866.
  • BIA Overrules Matter of Shanu Regarding “Date of Admission” for CIMT Removability(70 KB - 2/7/2011)
    The BIA held that a conviction for a CIMT triggers removability under INA §237(a)(2)(A)(i) only if the crime was committed within five years of the date of the admission by virtue of which the alien was then in the U.S. Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011) AILA Doc. No. 11020732.
    AILA Doc. No. 11020732.
  • OCAHO Assesses Penalties Against Subway Restaurant for I-9 Violations(51 KB - 1/31/2011)
    OCAHO found that the penalties sought by ICE were disproportionate to the company’s size and resources, and ordered the respondent to pay $27,150 in civil penalties for failure to prepare and/or properly complete I-9 forms. (U.S. v. Snack Attack Deli, Inc., 12/22/10) AILA Doc. No. 11013168.
    AILA Doc. No. 11013168.