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1998

  • BIA on 241(a)(1)(H) Waivers (12/29/1998)
    In making the discretionary determination on a waiver of deportability under INA 241(a)(1)(H), the Immigration Judge should consider the alien's initial fraud or misrepresentation in the overall assessment of positive and negative factors. (Matter of Tijam, 12/10/98)
    AILA Doc. No. 98122958.
  • BIA Says No 212(h) Waiver Where LPR Status Obtained by Fraud (12/4/1998)
    The BIA held that a 212(h) waiver is not available to an alien who was previously admitted for permanent residence but claims that such admission was not lawful because he concealed criminal activities that, if known, would have precluded his admission. (Matter of Ayala-Arevalo, 11/30/98)
    AILA Doc. No. 98120458.
  • BIA on Aggravated Felonies (11/18/1998)
    The BIA held that an alien convicted of an aggravated felony is subject to deportation regardless of the date of the conviction when he is placed in deportation proceedings on or after March 1, 1991, and the crime falls within the aggravated felony definition. (Matter of Lettman, 11/5/98)
    AILA Doc. No. 98111855.
  • BIA on In Absentia Motions to Reopen (11/5/1998)
    The BIA held that where an alien did not receive oral warnings of the consequences of failing to appear and moves to reopen to apply for relief that was unavailable at the time of the hearing, the regulatory requirements under 8 CFR §§3.2(c) and 3.23(b)(3) apply. (Matter of M-S-, 10/30/98)
    AILA Doc. No. 98110558.
  • BIA Finds No Compelling Reasons to Grant Asylum Where Conditions Changed in Afghanistan (10/28/1998)
    The BIA found that the applicant failed to establish compelling reasons for being unwilling to return to Afghanistan where he suffered beatings during a month-long detention and the disappearance and likely death of his father. (Matter of N-M-A-, 10/21/98)
    AILA Doc. No. 98102870.
  • BIA Finds No Ineffective Assistance of Counsel (10/8/1998)
    The BIA held that where counsel's insistence on corroborating evidence discouraged the respondents from seeking asylum, but was reasonable in light of case precedent, there is no showing of ineffective assistance of counsel. (Matter of B-B-, 9/24/98)
    AILA Doc. No. 98100858.
  • BIA on Exercise of Prosecutorial Discretion (9/24/1998)
    The BIA found no jurisdiction to review a decision by INS to exercise prosecutorial discretion before the charging document is filed with the court, and that once it is filed, the Service may move to terminate but may not simply cancel the charging document. (Matter of G-N-C-, 9/17/98)
    AILA Doc. No. 98092452.
  • BIA Finds No Jurisdiction to Review Claim for Relief Under CAT Article 3 (9/17/1998)
    The BIA lacks jurisdiction to adjudicate a claim for relief from deportation under Article 3 of the U.N. CAT as there has been no legislation implementing Article 3, no regulations have been promulgated, and Article 3 is a non-self-executing treaty provision. (Matter of H-M-V-, 8/25/98)
    AILA Doc. No. 98091759.
  • BIA Finds Texas Deferred Adjudication Is a Conviction for Immigration Purposes (9/4/1998)
    Noting that the third prong of the standard for determining whether a conviction exists with regard to deferred adjudication was eliminated under INA 101(a)(48)(A), the BIA held that a deferred adjudication under Texas law is a conviction for immigration purposes. (Matter of Punu, 8/18/98)
    AILA Doc. No. 98090458.
  • AAU on EB-5 Investment Capital "At Risk" (8/20/1998)
    The AAU held that merely establishing and capitalizing a new commercial enterprise and signing a commercial lease are not sufficient to show that an EB-5 petitioner has placed his capital at risk. (Matter of Ho, 7/31/98)
    AILA Doc. No. 98082058.
  • AAU Defines Parameters for Promissory Note as EB-5 Investment Capital (8/20/1998)
    The AAU found that a note secured by the petitioner's assets can constitute capital if the assets are identified as securing the note; the security interests are perfected in the appropriate jurisdiction; and the assets are amenable to seizure by a note holder. (Matter of Hsiung, 7/31/98)
    AILA Doc. No. 98082059.
  • AAU Precedent Decision on EB-5 Investment of Capital (8/13/1998)
    The AAU held that an EB-5 petitioner cannot establish the requisite investment of capital if he lends the money to his new commercial enterprise and that the petitioner's personal guarantee does not transform the business debt into a personal debt. (Matter of Soffici, 6/30/98)
    AILA Doc. No. 98081358.
  • BIA Says Post-6/20/91 OSC Must be Filed with Court to Initiate Proceedings (8/19/1998)
    The BIA held that in order to commence proceedings against an alien for purposes of INA 204(g) and 245(e)(2), an OSC and notice of hearing that was issued on or after June 20, 1991, must be filed with the immigration court. (Matter of Casillas, 8/4/98)
    AILA Doc. No. 98081957.
  • BIA Rejects Ineffective Assistance of Counsel Claim as Basis for Excusing Untimely MTR (8/4/1998)
    The BIA held that a claim of ineffective assistance of counsel does not constitute an exception to the 180-day statutory limit for the filing of a motion to reopen to rescind an in absentia order on the basis of exceptional circumstances. (Matter of A-A-, 7/16/98)
    AILA Doc. No. 98080457.
  • BIA Rejects Ineffective Assistance of Counsel Claim to Excuse Late MTR (8/4/1998)
    The BIA held that a claim of ineffective assistance of counsel does not constitute an exception to the 180-day statutory limit for the filing of a motion to reopen to rescind an in absentia order of deportation on the basis of exceptional circumstances. (Matter of Lei, 7/16/98)
    AILA Doc. No. 98080458.
  • BIA Defines Limits of Exclusion Proceedings for Advance Parolees in CA9 (7/20/1998)
    In cases falling within the Ninth Circuit, exclusion proceedings are appropriate for aliens returning on advance parole, unless the alien has a pending registry application or is not informed by the INS that they risk being placed in such proceedings upon reentry. (Matter of S-O-S-, 7/9/98)
    AILA Doc. No. 98072057.
  • BIA Says Asylum Applicant Was Properly Placed in Exclusion (7/20/1998)
    The BIA held that an applicant for asylum who departed and returned to the U.S. on advance parole was properly placed in exclusion proceedings following the denial of his application for asylum and revocation of his parole. (Matter of G-A-C-, 7/9/98)
    AILA Doc. No. 98072058.
  • BIA Reopens In Absentia Removal Order (7/14/1998)
    The BIA held that the respondent's 1997 motion to reopen his 1987 in absentia deportation order was not time barred since he received no notice of the deportation hearing. (Matter of Mancera-Monroy, 7/1/98)
    AILA Doc. No. 98071458.
  • BIA to Allow MTRs Based on Coerced Population Control in China (7/7/1998)
    The BIA held that due to a change in the definition of "refugee" under IIRIRA, it will allow reopening of proceedings to pursue asylum claims based on coerced population control policies, notwithstanding the time and number limitations specified in 8 CFR §3.2. (Matter of X-G-W-, 6/25/98)
    AILA Doc. No. 98070757.
  • BIA Affirms Prohibition on Sibling Petitions by Adoptees (6/12/1998)
    The BIA affirmed its holding in Matter of Li, 20 I&N Dec. 700 (BIA 1993), that a petitioner who qualifies as an adopted child under INA 101(b)(1)(e) cannot confer immigration benefits on a natural sibling. (Matter of Ma, 5/28/98)
    AILA Doc. No. 98061259.
  • BIA Rejects Foot Injury as Excuse for Failure to Appear (6/12/1998)
    The BIA held that the alien failed to show that a foot injury he suffered the day before his hearing amounted to exceptional circumstances to excuse his failure to appear where he failed to explain why he did not contact the court or provide supporting evidence. (Matter of B-A-S-, 5/20/98)
    AILA Doc. No. 98061257.
  • BIA Finds "Illegible Hearing Date" Insufficient to Excuse Failure to Appear (6/12/1998)
    The BIA held that an alien who claimed that his failure to appear resulted from an "illegible hearing date" on the OSC and hearing notice failed to establish that he received inadequate notice or that his absence was due to exceptional circumstances. (Matter of S-M-, 5/20/98)
    AILA Doc. No. 98061258.
  • BIA Rejects Headache as Excuse for Failure to Appear (6/12/1998)
    The BIA held that the alien failed to establish that a serious headache he suffered on his hearing date amounted to exceptional circumstances to excuse his failure to appear where he failed to explain why he did not contact the court or offer supporting evidence. (Matter of J-P-, 6/12/98)
    AILA Doc. No. 98061269.
  • BIA Discusses Peruvian Legitimation Laws (5/4/1998)
    The BIA found that a legitimated child must have been under 18 at the time the changes in Peruvian law took effect, and "extramarital filiation" must have been established prior to the child's 18th birthday, unless legitimated under the former laws of that country. (Matter of Torres, 5/4/98)
    AILA Doc. No. 98050455.
  • BIA Finds Harm Suffered Rose to Persecution in the Aggregate (4/2/1998)
    An alien who suffered repeated beatings and received multiple threats, whose apartment was vandalized, and whose son was degraded and intimidated on account of his Jewish nationality established that he suffered harm which rises to the level of persecution. (Matter of O-Z- & I-Z-, 4/2/98)
    AILA Doc. No. 98040256.
  • BIA on Certification of Precedent Decisions to the AG (1/30/1998)
    The BIA held that BIA precedent decisions which have been certified to the AG for review are binding on the INS and IJs and continue to serve as precedent in all proceedings involving the same issue unless or until they are modified or overruled by the BIA or AG. (Matter of E-L-H-, 1/30/98)
    AILA Doc. No. 98013058.
  • BIA Says an Alien Returning to the U.S. on Advance Parole Is an "Arriving Alien" (3/25/1998)
    The BIA held that an alien who arrives in the U.S. on advance parole is an "arriving alien," as defined in the regulations and that the IJ has no authority to consider the bond request of an alien returning pursuant to a grant of advance parole. (Matter of Oseiwusu, 3/25/98)
    AILA Doc. No. 98032558.
  • BIA on Jurisdiction Over Motion to Reconsider Dismissal of Appeal (3/24/1998)
    Where the BIA dismisses an appeal as untimely, it retains jurisdiction over a motion to reconsider the dismissal of the appeal to the extent that the motion challenges the finding of untimeliness. (Matter of Lopez, 3/24/98)
    AILA Doc. No. 98032459.
  • BIA on Exercise of Discretion for Cancellation of Removal (2/12/1998)
    The BIA held that the general standards developed in Matter of Marin for the exercise of discretion under 212(c) are applicable to the exercise of discretion under section 240A(a). (Matter of C-V-T-, 2/12/98).
    AILA Doc. No. 98021257.
  • BIA on Post-AEDPA 212(c) Eligibility (3/18/1998)
    An alien who is deportable for two or more CIMTS, and whose proceedings were initiated prior to 4/24/96 is not ineligible for a 212(c) waiver unless more than one conviction resulted in a sentence of 1 year or longer pursuant to the pre-AEDPA statute. (Matter of Fortiz-Zelaya, 3/18/98)
    AILA Doc. No. 98031859.
  • BIA Upholds Denial of Asylum Where Corroborating Evidence Was Reasonably Available (3/13/1998)
    The BIA held that an alien who did not provide evidence to corroborate his identity, nationality, claim of persecution, and other relevant claims, where it was reasonable to expect such evidence, failed to meet the burden of proof for asylum. (Matter of M-D-, 3/13/98)
    AILA Doc. No. 98031358.
  • BIA Upholds Denial of Asylum Claim Based on Fear of Shining Path (2/20/1998)
    The BIA held that the reasonableness of an alien's fear is reduced when his family remains in his native country unharmed for a long period after his departure and upheld the denial where DOS evidence indicated the Shining Path operates in only a few areas of Peru. (Matter of A-E-M-, 2/20/98)
    AILA Doc. No. 98022058.
  • BIA Says Asylum Burden Requires More Than General Testimony (2/19/1998)
    The BIA held that an asylum applicant does not meet the burden of proof by general and meager testimony and that the weaker an applicant's testimony, the greater the need for corroborative evidence. (Matter of Y-B-, 2/19/98).
    AILA Doc. No. 98021958.
  • BIA on Credibility and Demeanor (2/19/1998)
    The BIA held that because an IJ is in the unique position to observe the testimony of the alien, a credibility finding which is supported by a reasonable adverse inference drawn from the alien's demeanor generally should be accorded a high degree of deference. (Matter of A-S-, 2/19/98)
    AILA Doc. No. 98021959.
  • BIA on Eligibility for 212(h) Waiver (1/30/1998)
    The BIA held that an alien who has not previously been admitted for permanent residence is statutorily eligible for a waiver of inadmissibility under INA 212(h) despite his conviction for an aggravated felony. (Matter of Michel, 1/30/98)
    AILA Doc. No. 98013059.
  • BIA on Impact of Counterfeit Identity Document on Claim (1/8/1998)
    The BIA held that an ID document that is found to be counterfeit by forensic experts not only discredits the applicant's claim as to identity and nationality but also indicates an overall lack of credibility. (Matter of O-D-, 1/8/98)
    AILA Doc. No. 98010859.