Set Text Size:

S

S

S

2006

  • BIA Denies Motion to Reconsider Based on Prior Arguments and Authority and New Asylum Claim (12/7/2006)
    The BIA held that a motion to reconsider must have a supported allegation of material error; where there is new law, an explanation of its material effect; and, for an AWO, a showing that the alleged errors and arguments were raised on appeal and an explanation of error under the AWO regulations. In re O-S-G-, 24 I&N Dec. 56 (BIA 2006) I.D. #3548. AILA Doc. No. 06120765.
    AILA Doc. No. 06120765.
  • BIA Upholds 7 Year Suspension of Disbarred Attorney (11/16/2006)
    The BIA held a final disbarment order creates a presumption of misconduct rebuttable only by a showing of lack of due process, infirmity of proof or grave injustice. The Board upheld a 7-year suspension against an attorney disbarred by the highest court of New York for misconduct in state court. In re Truong, 24 I&N Dec. 52 (BIA 2006) I.D. #3547. AILA Doc. No. 06111663.
    AILA Doc. No. 06111663.
  • BIA Holds Alien Who Fails to Post Voluntary Departure Bond Not Subject to 240B(d)(1) Penalties (11/15/2006)
    The BIA held that an alien who fails to post the voluntary departure bond required by INA §240B(b)(3) is not subject to penalties for failure to depart under §240B(d)(1) and granted the motion to reopen proceedings for further consideration of the application for cancellation of removal. In re Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006) I.D. #3546. AILA Doc. No. 06111510.
    AILA Doc. No. 06111510.
  • BIA Rules REAL ID Credibility Provisions Inapplicable to Applications for Relief Filed Prior to Act’s Effective Date (11/2/2006)
    The BIA held that REAL ID credibility determination provisions apply only to applications for relief from removal initially filed with an asylum officer or IJ on or after May 11, 2005 – not to an asylum application filed with an asylum officer prior to this date but subsequently renewed. In re S-B-, 24 I&N Dec. 42 (BIA 2006) I.D. #3545. AILA Doc. No. 06110268.
    AILA Doc. No. 06110268.
  • BIA Finds Alternative Holdings Retain Precedential Value Where AG Expressly Declines to Vacate (9/28/2006)
    When the AG overrules one holding but expressly declines to vacate others, they retain their precedential value. Misprision of a felony is a crime involving moral turpitude. Under the “stop-time” rule, an offense ends continuous residence as of commission, even if committed prior to IIRIRA. In re Robles-Urrea, 24 I&N Dec. 22 (BIA 2006) I.D. #3542. AILA Doc. No. 06092867.
    AILA Doc. No. 06092867.
  • BIA Non-Precedent Decision Finds Traffic Jam Was “Exceptional Circumstance” Requiring Reopening of In Absentia Removal Order(130 KB - 9/22/2006)
    A non-precedent decision by the BIA overturned the IJ’s denial of a motion to reopen after entry of an in absentia removal order, finding that the well-documented, hours long traffic jam that caused the alien to miss the hearing was an “exceptional circumstance”. Courtesy of AILA member David B. Pakula.
    AILA Doc. No. 06092260.
  • BIA Clarifies Asylum Eligibility for Spouses/Partners in Forced Sterilization/Abortion Cases (9/20/2006)
    BIA en banc decision declines to extend Matter of C-Y-Z- to unmarried asylum applicants claiming persecution related to a partner's forced abortion or sterilization. Applicants must demonstrate that they have been persecuted on account of "other resistance" to a coercive population control program. In re S-L-L, 24 I&N Dec. 1 (BIA 2006) I.D. #3541. AILA Doc. No. 06092070.
    AILA Doc. No. 06092070.
  • BIA Finds Short Delay By Overnight Courier Is Not An "Exceptional Circumstance" Excusing Untimely Appeal (9/13/2006)
    The BIA held that it lacked authority to extend the 30-day time limit for filing an appeal and, while it could certify a case to itself in exceptional circumstances, a one day delay by an overnight delivery service did not warrant consideration of an untimely appeal on certification. In re Liadov, 23 I&N Dec. 990 (BIA 2006) I.D. #3540. AILA Doc. NO. 06091363.
    AILA Doc. No. 06091363.
  • BIA Finds 237(a)(1)(H) Waiver Applies to Innocent Misrepresentations (9/6/2006)
    The BIA held that INA §237(a)(1)(H) authorizes a waiver of removability regardless of whether the misrepresentation at the time of admission was willful or innocent. In re Guang Li Fu, 23 I&N Dec. 985 (BIA 2006) I.D. #3539. AILA Doc. No. 06090663.
    AILA Doc. No. 06090663.
  • BIA Holds Offense Must be Completely “Political” To Qualify for “Purely Political Offense” Exemption to Inadmissibility Under §212(a) (8/31/2006)
    To qualify for the “purely political offense” exception to inadmissibility under INA §212(a), a conviction for a crime involving moral turpitude must involve an offense that is completely “political”. Respondent’s conviction for aiding and abetting the murder of two British corporals did not qualify. In re O'Cealleagh, 23 I&N Dec. 976 (BIA 2006)
    AILA Doc. No. 06083161.
  • BIA Non-Precedent Decision on CSPA(15 KB - 8/15/2006)
    A non-precedent decision by the Board of Immigration Appeals addresses effective date issues under the Child Status Protection Act. Courtesy of AILA member Juan Lorenzo Rodriguez Quesada. AILA Doc. NO. 06081510.
    AILA Doc. No. 06081510.
  • BIA Holds Domestic Battery Not a “Crime Involving Moral Turpitude” or “Crime of Domestic Violence” (8/3/2006)
    An alien’s conviction for domestic battery under the California Penal Code does not qualify categorically as a conviction for a “crime involving moral turpitude” under INA§237(a)(2)(A)(ii) or, in Ninth Circuit removal proceedings, as a “crime of violence” such that it may be considered a “crime of domestic violence” under INA§237(a)(2)(E)(i). In re Sanudo, 23 I&N Dec. 968 (BIA 2006)
    AILA Doc. No. 06080360.
  • BIA Affirms Asylum for Former Child Soldier(482 KB - 7/12/2006)
    In an unpublished decision, the Board affirmed the IJ’s decision to grant asylum, noting the respondent established a well-founded fear of persecution based on his Acholi tribal membership, as well as the possibility he could be identified as a former child soldier. AILA Doc. No. 06071259.
    AILA Doc. No. 06071259.
  • BIA Finds Derivative Citizenship Where Paternity Not Legitimated By Marriage (6/29/2006)
    The BIA held that where the respondent was born out of wedlock in Guyana and his natural parents were never married, his paternity has not been established by legitimation under the laws of Guyana, so he is not ineligible to obtain derivative citizenship under former INA 321(a)(3). In re Lawrence Rowe, 23 I&N Dec. 962 (BIA 2006) I.D. #3536. AILA Doc. No. 06062968.
    AILA Doc. No. 06062968.
  • BIA Finds Social Visibility Important in Determining Whether a Particular Social Group Exist (6/15/2006)
    The BIA held that the social visibility of the members of a claimed social group is an important consideration in identifying whether a “particular social group” exists and that a group of former drug informants working against the Cali cartel did not have the requisite social visibility. In re C-A-, 23 I&N Dec. 951 (BIA 2006) I.D. #3535. AILA Doc. No. 06061511.
    AILA Doc. No. 06061511.
  • BIA Denies Relief to Burmese Chin Based on Finding of "Material Support To A Terrorist Organization"(78 KB - 6/9/2006)
    The BIA rejected a “totality of the circumstances” test for whether an organization is engaged in terrorist activity under INA 212(a)(3)(B) and refused to consider an alien’s intent in making a donation or the recipient’s intended use when deciding whether the alien provided “material support”. In re S-K-, 23 I&N Dec. 936 (BIA 2006) I.D. #3534. AILA Doc. No. 06060971
    AILA Doc. No. 06060971.
  • BIA Rules Alien Who Entered Without Inspection Ineligible for Adjustment Under CSPA (5/31/2006)
    The BIA held that an alien who entered without inspection is not eligible for adjustment of status under the Chinese Student Protection Act of 1992 (“CSPA”). In addition, the alien may not amend/renew an adjustment application during proceedings in conjunction with section 245(i). In re Jian An Wang, 23 I&N Dec. 924 (BIA 2006) I.D. #3533. AILA Doc. No. 06053163.
    AILA Doc. No. 06053163.
  • Attorney General Disapproves CAT Relief for Mentally Ill Pro Se Respondent (5/11/2006)
    The AG disapproved the BIA’s grant of deferral of removal under CAT to a mentally ill pro se respondent, finding no showing of eligibility where the evidence does not establish that each step in the hypothetical chain of events leading to torture is more likely than not to happen. In re J-F-F-, 23 I&N 912 (AG 2006) Int. Dec. 3532. AILA Doc. No. 06051110.
    AILA Doc. No. 06051110.
  • BIA Rules on Retroactivity of IIRIRA Unlawful Presence Ten-Year Bar(40 KB - 4/7/2006)
    BIA finds that no period of an alien’s presence in the United States prior to April 1, 1997 may be considered “unlawful presence” for purposes of determining whether the alien is inadmissible under 8 U.S.C. Section 1182(a)(9)(B)(i)(II). Matter of Raul-Rodarte, 23 I&N Dec. 902 (BIA 2006) I.D. #3531.
    AILA Doc. No. 06040610.
  • BIA Refuses Reopening on Forced Sterilization Claim (3/24/2006)
    BIA rules that an alien seeking to reopen removal proceedings based on a claim that the birth of a second child in the U.S. will result in the alien’s forced sterilization in China cannot establish prima facie eligibility for relief. Matter of C-C-, 23 I&N Dec. 899 (BIA 2006) I.D. #3530. AILA Doc. No. 06032415.
    AILA Doc. No. 06032415.
  • BIA Rules on Cancellation of Removal and Continuous Physical Presence Requirement (3/24/2006)
    BIA Rules that the provision in 8 C.F.R. Section 1003.23(b)(3)(2005) that an applicant for cancellation of removal must demonstrate statutory eligibility for that relief prior to the service of a notice to appear applies only to the continuous physical presence requirement. Matter of Bautista Gomez, 23 I&N Dec. 893 (BIA 2006) I.D. #3528.
    AILA Doc. No. 06032411.
  • BIA Rules on Basing an Application for Adjustment of Status on a Previously Approved and Used Visa Petition (3/10/2006)
    BIA Rules that an application for adjustment of status cannot be based on an approved visa petition that has already been used by the beneficiary to obtain adjustment of status or admission as an immigrant. Matter of Villarreal-Zungia, 23 I&N Dec. 886 (BIA 2006) I.D. #3527. AILA Doc. No. 06031061
    AILA Doc. No. 06031061.
  • BIA Rules on Failure of Trial Court to Advise of Immigration Consequences of Guilty Plea (2/9/2006)
    BIA Rules that a conviction vacated pursuant to Section 2943.031 of the Ohio Revised Code for failure of the trial court to advise the alien defendant of the possible immigration consequences of a guilty plea is no longer a valid conviction for immigration purposes. Matter of Adamiak, 23 I&N Dec. 878 (BIA 2006) I.D. #3525.
    AILA Doc. No. 06020972.
  • BIA Rules Those Who Enter Without Admission After Removal Are Inadmissible Despite AG Grant of Permission to Reapply(60 KB - 1/30/2006)
    BIA says person who enters without admission after removal is inadmissible even if AG granted permission to reapply for admission prior to reentering unlawfully. Such a person is ineligible for inadmissibility waiver unless more than 10 years have elapsed since last departure. Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2005) I.D. #3524. AILA Doc. No. 06013013.
    AILA Doc. No. 06013013.
  • BIA Says Victim of Sexual Abuse Under 18 Years Old is a Minor(26 KB - 1/26/2006)
    The BIA ruled that a victim of sexual abuse under the age of 18 is a minor for purposes of determining whether an alien has been convicted of sexual abuse of a minor within the meaning of the INA. Matter of V-F-D, 23 I&N Dec. 859 (BIA 2005) I.D. #3523.
    AILA Doc. No. 06012660.