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Cases & Decisions
Executive Office for Immigration Review (EOIR)
BIA Rules State Conviction Based on Recidivism Not Automatically an Aggravated Felony
(112 KB - 12/28/2007)
Absent controlling authority on “recidivist possession”, alien’s state conviction for simple possession of controlled substance won’t be considered aggravated felony based on recidivism unless alien’s recidivist drug offender status was admitted by alien or determined by a court.
Matter of Jose Anget Carachuri-Rosendo
, 24 I&N Dec. 382 (BIA 2007). AILA Doc. No. 07122864.
AILA Doc. No. 07122864.
BIA Rules Individuals Unlawfully Present Who Later Depart the Country Are Inadmissible
(33 KB - 11/30/2007)
An individual 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.
Matter of Lemus-Losa
, 24 I&N Dec. 373 (BIA 2007). AILA Doc. No. 07113071.
AILA Doc. No. 07113071.
BIA Rules Recidivist Immigration Violators are Inadmissible and Cannot Adjust Status
(58 KB - 11/30/2007)
The BIA ruled that recidivist immigration violators are inadmissible and that adjustment of status under section 245(i) of the Act is not available to an individual who is inadmissible under section 212(a)(9)(C)(i)(I) of the Act.
Matter of Briones
, 24 I&N Dec. 355 (BIA 2007). AILA Doc. No. 07113070.
AILA Doc. No. 07113070.
Unpublished Board Opinion Addresses Timeliness of a Motion to Reopen and Discrepancies in Stokes Interview
(68 KB - 11/2/2007)
In an unpublished opinion, the Board of Immigration Appeals held that the thirty day deadline for motions to reopen USCIS decisions begins to run on the postmark date of the decision. Additionally, the Board held that discrepancies in a Stokes interview are not fatal where there are good solid reasons rebutting the discrepancies. Courtesy of Alan Lee. AILA Doc. No.l 07110261.
AILA Doc. No. 07110261.
BIA finds Alien is Barred From Filing an Untimely Motion to Reopen Removal Proceedings to Submit a Successive Asylum Application
(35 KB - 11/1/2007)
The BIA held an alien who is subject to a final order of removal is barred 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).
Matter of C-W-L-
, 24 BIA 346 (BIA 2007). AILA Doc. No. 07110161.
AILA Doc. No. 07110161.
BIA Dismisses Charges Against "LA 8"
The Board of Immigration Appeals ends a 20-year saga by dismissing removal proceedings against a group of Palestinian student activists initially arrested in January 1987.
Matter of Hamide
, A19-262-560 (10/29/07). AILA Doc. No. 07103166.
AILA Doc. No. 07103166.
BIA Discusses “Particularly Serious Crimes”
(38 KB - 10/25/2007)
To be considered a particularly serious crime under the INA, an offense need not be an aggravated felony. 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.
Matter of N-A-M-
, 24 I&N Dec. 336 (BIA 2007) AILA Doc. No. 07102561.
AILA Doc. No. 07102561.
BIA Finds No Conflict Between Law and Regulation Relating to CPR’s Application for Extreme Hardship Waiver
(22 KB - 10/15/2007)
There is no conflict between section INA Sec. 216(c)(4) and its implementing regulation 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.
Matter of Singh
, 24 I&N Dec. 331 (BIA 2007). AILA Doc. No. 07101560.
AILA Doc. No. 07101560.
BIA Rules That IJ May Look Outside Record of Conviction For Loss Determination
(61 KB - 10/5/2007)
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. Matter of Babaisakov, 24 I&N Dec. 306 (BIA 2007). AILA Doc. No. 07100532.
AILA Doc. No. 07100532.
BIA Finds FGM is “Fundamental Change in Circumstances”
The BIA held that because FGM is a type of harm that 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.
Matter of A-T-
, 24 I&N Dec. 296 (BIA 2007). AILA Doc. No. 07100162.
AILA Doc. No. 07100162.
BIA Denies Attorney’s Motion for Reinstatement; Suspends for 120 Days
(14 KB - 9/27/2007)
BIA denied Motion for Reinstatement and doubled recommended suspension period to 120 days after attorney violated Board’s immediate Suspension Order by Practicing before Immigration Court. (
Matter of Jean-Joseph
, 24 I&N Dec. 294 (BIA 2007)). AILA Doc. No. 07092765.
AILA Doc. No. 07092765.
BIA Denies Motion for Reinstatement to Practice by Attorney Convicted of Fraud
(14 KB - 9/27/2007)
An expelled attorney’s motion for reinstatement to practice 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. (
Matter of Krovonos
, 24 I&N Dec. 292 (BIA 2007)). AILA Doc. No. 07092764.
AILA Doc. No. 07092764.
AG Remands Material Support Bar Case to BIA
(16 KB - 9/27/2007)
The AG remands case to BIA to consider appropriateness of further proceedings in light of the 2/20/07 determination of the DHS Secretary that INA Sec. 212(a)(3)(B)(iv)(VI) shall not apply with respect to material support provided to the Chin National Front/Chin National Army. (
Matter of S-K-
, 24 I&N Dec. 289 (AG 2007). AILA Doc. No. 07092763.
AILA Doc. No. 07092763.
BIA Finds Attorney Subject to Discipline on the Grounds Set Forth in 8 C.F.R. § 1003.102(c)
(27 KB - 9/21/2007)
An attorney who knowingly and willfully misled the USCIS by presenting an improperly obtained certified LCA is subject to discipline.
Matter of Shah
, 24 I&N Dec. 282 (BIA 2007). AILA Doc. No. 07092164.
AILA Doc. No. 07092164.
BIA Holds Fear of FGM of Daughter Not Sufficient Basis for Asylum or Withholding
(29 KB - 9/6/2007)
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.
Matter of A-K
, 24 I&N Dec. 275 (BIA 2007). AILA Doc. No. 07090663.
AILA Doc. No. 07090663.
BIA Holds Assault and Battery Against Family Member Not Categorically a CIMT
(18 KB - 8/16/2007)
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.
Matter of Sejas
, 24 I&N Dec. 236 (BIA 2007). AILA Doc. No. 07081664.
AILA Doc. No. 07081664.
BIA Holds Assault in 3rd Degree is CIMT
(31 KB - 8/16/2007)
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.
Matter of Solon
, 24 I&N Dec. 239 (BIA 2007). AILA Doc. No. 07081663.
AILA Doc. No. 07081663.
BIA Discusses Element of “Approvable When Filed” Standard
(21 KB - 8/16/2007)
To establish eligibility for 245(i) adjustment of status on the basis of a marriage-based visa petition one 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).
Matter of Jara Riero and Jara Espinol
, 24 I&N Dec. 267 (BIA 2007). AILA Doc. No. 07081662.
AILA Doc. No. 07081662.
In MTR Proceedings Applicant Did Not Meet the Heavy Burden to Show Changed Circumstances
(49 KB - 8/6/2007)
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”
Matter of S-Y-G-
, 24 I&N Dec. 247 (BIA 2007) Interim Decision # 3575. AILA Doc. No. 07080662.
AILA Doc. No. 07080662.
BIA Finds Parent’s LPR Status Cannot be Imputed to Child in 240A Cancellation Cases
(26 KB - 7/12/2007)
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 INA section 240A(a)(1).
Matter of Escobar
, 24 I&N Dec. 231 (BIA 2007). AILA Doc. No. 07071263.
AILA Doc. No. 07071263.
BIA Holds Alien Returning to U.S. After Failed Canadian Refugee Application is "Arriving Alien"
(50 KB - 7/5/2007)
An alien who leaves the U.S. and is admitted to Canada to seek refugee status has made a departure and an alien returning to the U.S. after the denial of an application for refugee status in Canada is seeking admission and is therefore an arriving alien under 8 C.F.R. § 1001.1(q) (2007).
Matter of R-D-
, 24 I&N Dec. 221 (BIA 2007) I.D. #3571. AILA Doc. No. 07070566.
AILA Doc. No. 07070566.
BIA Finds INA §237(a)(2)(E) Does Not Apply to Pre-enactment Convictions
(22 KB - 6/28/2007)
An alien whose conviction precedes the effective date of INA section 237(a)(2)(E) is not “convicted of an offense under” that section and therefore is not barred from establishing eligibility for cancellation of removal by INA section 240A(b)(1)(C). Matter of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007). AILA Doc. No. 07062863.
AILA Doc. No. 07062863.
BIA Discusses “Mixed Motive” Asylum Cases
(52 KB - 6/28/2007)
Under section 101(a)(3) of the REAL ID Act of 2005, 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.
Matter of J-B-N- & S-M-
, 24 I&N Dec. 208 (BIA 2007). AILA Doc. No. 07062861.
AILA Doc. No. 07062861.
BIA Discusses Waivers of Inadmissibility for Lawful Permanent Residents
(24 KB - 6/22/2007)
The BIA holds 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).
Matter of ABOSI
, 24 I&N Dec. 204 (BIA 2007). AILA Doc. No. 07062265.
AILA Doc. No. 07062265.
BIA Holds Presence Accrues During Application for Cancellation of Removal
(50 KB - 6/8/2007)
The BIA determined that 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 Garcia
, 24 I&N Dec. 179 (BIA 2007) I.D. # 3565. AILA Doc. No. 07060864.
AILA Doc. No. 07060864.
BIA Finds Parent with Two Chinese-Born Children May Qualify as a Refugee
(65 KB - 6/8/2007)
BIA finds that 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.
Matter of J-H-S-
, 24 I&N Dec. 196 (BIA 2007). AILA Doc. No. 07060863.
AILA Doc. No. 07060863.
BIA Finds No Well-founded Fear for Chinese Parent with Second Child
(80 KB - 6/8/2007)
The BIA found that the evidence did not demonstrate that the Chinese Govt. has a national policy of requiring forced sterilization of a parent who returns with a second child born abroad, or that sanctions imposed pursuant to local family planning policies would rise to the level of persecution.
Matter of J-W-S-
, 24 I&N Dec. 185 (BIA 2007). AILA Doc. No. 07060861.
AILA Doc. No. 07060861.
BIA Discusses "Frivolous" Asylum Determinations
The BIA outlines what the responsibilities of the IJ are when determining that an asylum application is frivolous, and holds that the applicant must be given sufficient opportunity to account for any discrepancies or implausible aspects of the claim (
Matter of Y-L-
, 24 I&N Dec. 151 (BIA 2007) I. D. #3563). AILA Doc. No. 07042767.
AILA Doc. No. 07042767.
BIA Holds Willful Failure to Register by a Sex Offender Is a CIMT
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. Matter of TOBAR-LOBO, 24 I&N Dec. 143 (BIA 2007). AILA Doc. No. 07042467.
AILA Doc. No. 07042467.
BIA Holds IJ Reacquires Jurisdiction in Remanded Proceedings
When a case is remanded to an IJ for completion of the appropriate background checks, the IJ is required to enter a final order granting or denying the requested relief.
Matter of M-D-
, 24 I&N Dec. 138 (BIA 2007). AILA Doc. No. 07041362.
AILA Doc. No. 07041362.
BIA Discusses North Korean Human Rights Act of 2004
The BIA held that the North Korean Human Rights Act of 2004 does not apply to North Koreans who have availed themselves of the right to citizenship in South Korea.
Matter of K-R-Y- and K-C-S-
, 24 I&N Dec. 133 (BIA 2007). AILA Doc. No. 017041061.
AILA Doc. No. 07041061.
BIA Holds Trafficking in Counterfeit Goods is CIMT
The BIA held that the offense of trafficking in counterfeit goods or services in violation of 18 U.S.C. § 2320 (2000) is a crime involving moral turpitude.
Matter of KOCHLANI
, 24 I&N Dec. 128 (BIA 2007). AILA Doc. No. 07040370.
AILA Doc. No. 07040370.
BIA Discusses Mandatory Detention in Light of Transition Period Custody Rules
The BIA held that an alien who has been apprehended at home while on probation is subject to mandatory detention, 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. (
Matter of KOTLIAR-
, 24 I&N Dec. 124 (BIA 2007)). AILA Doc. No. 07032260.
AILA Doc. No. 07032260.
BIA Discusses Reinstatement of Prior Orders of Deportation/Removal
(35 KB - 3/20/2007)
The BIA held that an IJ has no authority to reinstate a prior order of deportation or removal pursuant to INA section 241(a)(5) and an alien subject to reinstatement of a prior order of deportation or removal has no right to a hearing before an Immigration Judge. (Matter of W-C-B-, 24 I&N Dec. 118 (BIA 2007). AILA Doc. No. 07032011.
AILA Doc. No. 07032011.
BIA Finds “Categorical Approach” Not Applicable Where “Commercial Advantage” Is Not Element of Offense
The BIA discusses the application of the “categorical approach” to determining whether a criminal offense satisfies a particular ground of removal and whether an offense is committed for “commercial advantage. " (
Matter of GERTSENSHTEYN
, 24 I&N Dec. 111 (BIA 2007)). AILA Doc. No. 07031560.
AILA Doc. No. 07031560.
BIA Addresses Termination of Proceedings for Adjudication of Naturalization Application
The BIA reaffirmed Matter of Cruz holding because the BIA and the IJs lack jurisdiction to adjudicate applications for naturalization, removal proceedings may only be terminated where the DHS presents an affirmative communication attesting to alien’s prima facie eligibility for naturalization.
Matter of ACOSTA HIDALGO
, 24 I&N Dec. 103 (BIA 2007). AILA Doc. No. 07030963.
AILA Doc. No. 07030963.
BIA Holds That TPS Can Be Asserted in Removal Proceedings
The BIA held that Temporary Protected Status can be asserted in Removal Proceedings, even if AAU previously denied application.
In re William Osmin BARRIENTOS
, 24 I&N Dec. 100 (BIA 2007). AILA Doc. No. 07030560.
AILA Doc. No. 07030560.
Money Laundering in Violation of NY Penal Law is CIMT
BIA dismissed appeal and reaffirmed decision holding that the offense of money laundering in violation of section 470.10(1) of the New York Penal Law is a crime involving moral turpitude.
In re Mahesh Nenumal TEJWANI
, 24 I&N Dec. 97 (BIA 2007). AILA Doc. No. 07022365.
AILA Doc. No. 07022365.
BIA Addresses Failure to Depart Penalty and its Exceptions
The BIA held that they lack the authority to apply an “exceptional circumstances” exception to the penalty provisions for failure to depart within the time period afforded for voluntary departure and defined a circumstance where one did not
fail to depart.
In re Bozena ZMIJEWSKA
, 24 I&N Dec. 87 (BIA 2007). AILA Doc. No. 07022362.
AILA Doc. No. 07022362.
BIA Addresses §237(a)(2)(B)(i) Applicability
The BIA held that the exception to deportability under INA §237(a)(2)(B)(i) 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. (
Matter of MONCADA-Servellon
, 24 I&N Dec. 62 (BIA 2007)). AILA Doc. No. 07022063.
AILA Doc. No. 07022063.
BIA Holds That Affluent Guatemalans Do Not Constitute a Particular Social Group
BIA discusses factors to be considered in determining whether a particular social group exists, and held that affluent Guatemalans do not constitute a particular social group. (
Matter of A-M-E & J-G-U-
, 24 I&N Dec. 69 (BIA 2007)). AILA Doc. No. 07022062.
AILA Doc. No. 07022062.
BIA Addresses Effective Date of Child Status Protection Act
The BIA held that INA §201(f)(1) applies to an individual whose visa petition was approved before the August 6, 2002 effective date of CSPA, but the I-485 was filed after that date - such individual retains his status as a child.
In re Matter of Rodolfo AVILA-PEREZ
, 24 I&N Dec. 78 (BIA 2007). AILA Doc. No. 07021561.
AILA Doc. No. 07021561.
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