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2004 - 2003

  • Attorney General Denies Request for Review of In re C-Y-Z-(32 KB - 12/20/2004)
    On 12/1/04, the Attorney General denied the INS Commissioner’s request for review of In re C-Y-Z-, Int. Dec. 3319 (BIA 1997), which held that an asylum applicant whose spouse was forced to undergo an abortion or sterilization can establish past persecution and, thus, qualify as a refugee. In re C-Y-Z-, 23 I&N Dec. 693 (BIA 2004) Int. Dec. 3503. AILA Doc. No. 04122067.
    AILA Doc. No. 04122067.
  • BIA Rules that a "Violation" Does Not Equate to a Criminal Conviction(31 KB - 10/21/2004)
    An alien found guilty of a "violation" under Oregon law does not have a "conviction" for immigration purposes under section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2000). In re Hadi Eslamizar, Respondent, 23 I&N Dec. 684 (BIA 2004) Int. Dec. 3502. AILA Doc. No. 04102115.
    AILA Doc. No. 04102115.
  • BIA Finds Adjustment Ineligibility for Failure to Maintain Status During Pending Asylum Application(28 KB - 10/5/2004)
    BIA found failure to maintain status was not "for technical reasons" where asylum application was filed while respondent was in nonimmigrant status, nonimmigrant status expired, and the asylum application was referred to an IJ prior to the respondent filing for adjustment of status. In re L-K-, Respondent, 23 I&N Dec. 677 (BIA 2004) Int.Dec. 3501.
    AILA Doc. No. 04100573.
  • BIA Finds That Post-Operative Transsexual Entered Into Marriage under DOMA(1641 KB - 9/28/2004)
    The BIA found that a beneficiary who completed male-to-female sexual conversion surgery, and married a male, is in an opposite-sex marriage for purposes of section 7 of the Defense of Marriage Act. The case is remanded for consideration of South Carolina state law issues. Courtesy of petitioner's attorney, Jose Monge. AILA Doc. No. 04092760
    AILA Doc. No. 04092760.
  • BIA Finds Charging Document In Prior Proceeding Does Not End Continuous Physical Presence(30 KB - 9/13/2004)
    The BIA, en banc, found that an alien who departed the U.S. after being served with a charging document can seek cancellation of removal in a subsequent removal proceeding, based on a new period of continuous physical presence measured from the date of his return to the U.S. In re Cisneros-Gonzalez, 23 I&N Dec. 668 (BIA 2004) Int.Dec. 3500. AILA Doc. No. 04091374.
    AILA Doc. No. 04091374.
  • BIA Affirms Grant of Asylee Adjustment and Waiver of Inadmissibility (6/24/2004)
    The BIA rejected DHS's appeal, finding that EOIR has original and exclusive jurisdiction over an asylee's INA § 209 adjustment and the accompanying § 209(c) waiver application, and that termination of a grant of asylum is not mandatory where §§ 209(b) and 209(c) relief is available. In re K-A-, 23 I&N Dec. 661 (BIA 2004) Int. Dec. 3499.
    AILA Doc. No. 04062462.
  • BIA Holds Stalking is a Crime of Violence and an Aggravated Felony(19 KB - 3/18/2004)
    A stalking offense in violation of §646.9(b) of the California Penal Code, which proscribes stalking when there is a TRO, injunction, or other court order in effect, is a crime of violence and is an aggravated felony under INA §101(a)(43)(F), 8 USC §1101(a)(43)(F) (2000). In re Malta, 23 I&N Dec. 656 (BIA 2004) Int. Dec. 3498. AILA Doc. No. 04031164.
    AILA Doc. No. 04031164.
  • Attorney General Reverses BIA Affirmance Without Opinion Decision(316 KB - 3/11/2004)
    The Attorney General reversed an IJ decision affirmed without decision by the BIA, and grants asylum to a Lebanese Christian who had previously assisted the U.S. Marines in Lebanon. Courtesy of Respondent's attorney, AILA member Tim Wichmer. AILA Doc. No. 04031162.
    AILA Doc. No. 04031162.
  • AG Rules that Lebanese Christian Who Aided Marines Has Well-Founded Fear of Future Persecution(324 KB - 2/13/2004)
    Attorney General, overturning BIA AWO decision, grants asylum, based on well-founded fear of future persecution from Hezbollah, to Lebanese Christian who provided assistance to U.S. Marines during the bombing of the Marine barracks in Beirut in 1983. Matter of Marshi, A26 980 386 (Feb. 13, 2004) (Doc. No. 04021390).
    AILA Doc. No. 04021390.
  • Mexican Citizen Convicted of Petty Offense is Not Ineligible for Cancellation of Removal(26 KB - 5/12/2003)
    The respondent, who was convicted of a CIMT that qualifies as a petty offense, was not rendered ineligible for cancellation of removal under INA §240A(b)(1) by either his conviction or his commission of another offense that is not a CIMT. In re Fidel Garcia-Hernandez, 23 I&N Dec. 590 (BIA 5/8/03) Int. Dec. 3490. (AILA Doc. No. 03051243)
    AILA Doc. No. 03051243.
  • Act of Applying for Naturalization with Oath of Allegiance Does Not Confer Citizenship, Rules BIA(17 KB - 4/30/2003)
    United States nationality cannot be acquired by taking an oath of allegiance pursuant to an application for naturalization, because birth and naturalization are the only means of acquiring United States nationality under the Immigration and Nationality Act. In re Navas-Acosta, 23 I&N Dec. 586 (BIA 4/29/03) Int. Dec. 3489. (AILA Doc. No. 03043042)
    AILA Doc. No. 03043042.
  • AG Bond Denial Sets Alarming New Precedent(46 KB - 4/24/2003)
    An AG precedent decision in a bond proceeding holds that IJs and the BIA must consider “evidence” from Executive sources that release would serve to stimulate mass migration and threaten national security. In re D-J-, 23 I&N Dec. 572 (AG 4/17/03), Int. Dec. 3488. (AILA Doc. No. 03042440)
    AILA Doc. No. 03042440.
  • ABA Solicits Input for Study of BIA Changes(48 KB - 3/21/2003)
    The ABA Commission on Immigration Policy seeks input on the impact on cases of the 9/25/02 "procedural reforms" at the Board of Immigration Appeals. (AILA Doc. No. 03032120)
    AILA Doc. No. 03032120.
  • BIA Upholds Right To Effective Assistance Counsel in Removal Proceedings(67 KB - 2/12/2003)
    The BIA rejected INS's position that there is no right to effective assistance of counsel in removal proceedings. INS had urged the BIA to reverse Matter of Lozada. In upholding Matter of Lozada, the BIA adopted AILF's argument that the BIA must follow the Courts of Appeal, which have uniformly recognized a due process right to effective assistance of counsel. (AILA Doc. No. 03021241)
    AILA Doc. No. 03021241.
  • Man Loses Bid to Remain in the U.S. After Committing Bigamy to Acquire LPR Status (1/9/2003)
    An alien who acquired permanent resident status through fraud or misrepresentation has never been “lawfully admitted for permanent residence” and is therefore ineligible for cancellation of removal under INA §240A(a), 8 USC §1229b(a)(2000). In re Siaosi Fisiimaile Koloamatangi, 23 I&N Dec. 548 (BIA 1/8/03) Int. Dec. 3486.
    AILA Doc. No. 03010943.
  • DHS's Appeal Brief in Matter of R-A- Urges Granting Gender-Based Asylum Claim (2/23/2004)
    The DHS brief strongly urges the Attorney General to remand the case involving fear of domestic violence, with directions to the BIA to grant asylum without opinion. Alternatively, the DHS argues for postponement of a decision in the case until the regulations on gender-based claims are finalized.
    AILA Doc. No. 04022310.
  • BIA Revisits In Re Vargas and Reaffirms That 1st Degree Manslaughter is an Aggravated Felony(20 KB - 2/6/2004)
    The offense of manslaughter in the first degree in violation of section 125.20 of the New York Penal Law is a crime of violence under 18 USC §18(b) (2000) and is therefore an aggravated felony under INA §101(a)(43)(F), 8 USC §1101(a)(43)(F) (2000). In re Luis Vargas-Sarmiento, 23 I&N Dec.651 (BIA 2/5/04) Int. Dec. 3497. (AILA Doc. No. 04020640)
    AILA Doc. No. 04020640.
  • BIA Expels Immigration Attorney from Practice After Repeated Acts of Misconduct(21 KB - 9/29/2003)
    Where the respondent was disbarred by the Supreme Court of California based on his egregious and repeated acts of professional misconduct over a number of years, expulsion from practice before the BIA, the immigration courts, and DHS is an appropriate sanction. In re Miguel Gadda, 23 I&N Dec. 645 (BIA 9/25/03) Int. Dec. 3496 (AILA Doc. #03092910).
    AILA Doc. No. 03092910.
  • BIA Denies Discretionary Relief for Breaching Protective Order, Finds Lebanon Native Threat to U.S.(53 KB - 8/4/2003)
    Under 8 CFR §1003.46(i), Respondent is ineligible for any form of discretionary relief, except for bond, because a protective order was violated by disclosure of protected information to unauthorized persons, and that there are reasonable grounds for regarding Respondent as a danger to U.S. security. In re R-S-H- et al., 23 I&N Dec. 629 (8/4/03) Int. Dec. 3495. (AILA Doc. No. 03080445)
    AILA Doc. No. 03080445.
  • BIA Finds that Presidential or Gubernatorial Pardon Waives Only The Grounds of Removal Specified in INA Section 237(a)(2)(A)(v)(12 KB - 7/3/2003)
    Presidential or Gubernatorial pardon waives only grounds specified in INA § 237(a)(2)(A)(v), and no implicit waivers can be read into the statute. Respondent's pardon did not waive removability for crime under INA § 237(a)(2)(E)(i) which was not specified in INA § 237(a)(2)(A)(v). In re Suh, 23 I&N Dec. 26 (BIA 7/01/03) Int. Dec. 3494. (AILA Doc. No. 03070315)
    AILA Doc. No. 03070315.
  • Canadian Citizen Found Removable After BIA Holds Quashed Drug Conviction Still Valid(21 KB - 6/11/2003)
    A drug conviction quashed by a Canadian court was not based on defect in the conviction or in the underlying proceedings, but entered solely for immigration purposes. The respondent’s “conviction” for possession of a controlled substance under INA §101(a)(48)(A) still stands. In re Pickering, 23 I&N Dec. 621 (BIA 6/11/03) Int. Dec. 3493. (AILA Doc. No. 03061145)
    AILA Doc. No. 03061145.
  • BIA Finds ‘Past Persecution’ Based on Forced Sterilization, Grants Asylum and Withholding of Removal(68 KB - 5/23/2003)
    Passage of time since forced sterilization of respondent’s wife, along with the lack of enforcement of coercive family planning, does not constitute a “fundamental change” in respondent’s personal circumstances and does not meet the government’s burden under 8 CFR §1208.13(b)(1)(ii). In re Y-T-L-, 23 I&N Dec. 601 (BIA 5/22/03) Int. Dec. 3492. (AILA Doc. No. 03052342)
    AILA Doc. No. 03052342.