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2010

  • Matter of Legaspi: BIA on 245(i) Grandfathering (12/3/2010)
    The BIA held that an alien is not independently grandfathered for 245(i) adjustment simply by virtue of marriage to another alien who is grandfathered as a derivative beneficiary of a visa petition. Matter of Legaspi 25 I&N Dec. 328 (BIA 2010). AILA Doc. No. 10120364.
    AILA Doc. No. 10120364.
  • BIA Finds TPS Grant Does Not Terminate Removal Proceedings(222 KB - 11/24/2010)
    The BIA reinstated proceedings, finding that respondent was protected from execution of a removal order during the time her TPS was valid, but she remained removable based on the charge of inadmissibility in the NTA. Matter of Sosa Ventura 25 I&N Dec. 391 (BIA 2010). AILA Doc. No. 10112431.
    AILA Doc. No. 10112431.
  • BIA Finds Colorado Child Endangerment is a Child Abuse Crime(44 KB - 11/19/2010)
    The BIA held that a conviction under the child endangerment clause of Colo. Rev. Stat. 18-6-401(1)(a) is categorically a crime of child abuse under INA §237(a)(2)(E)(i), even though no proof of harm or injury is required. Matter of Soram, 25 I&N Dec. 378 (BIA 2010). AILA Doc. No. 10111969.
    AILA Doc. No. 10111969.
  • BIA Remands for Consideration of Special Rule Cancellation Claim(768 KB - 11/8/2010)
    In an unpublished decision, the BIA remanded for the IJ to consider respondent’s eligibility for special rule cancellation of removal under INA §240A(b)(2), where respondent testified that his U.S. citizen spouse was on probation for child abuse. Courtesy of Geoff Hoffman. AILA Doc. No. 10110868.
    AILA Doc. No. 10110868.
  • BIA Finds DHS Counsel Conduct “Unbecoming”(301 KB - 10/21/2010)
    Unpublished BIA decision, sustaining a grant of asylum, dismissing the DHS appeal, and criticizing the conduct of the DHS attorney towards the Immigration Judge. Courtesy of Perry & Associates, PC. AILA Doc. No. 10102140.
    AILA Doc. No. 10102140.
  • BIA Finds Conviction for Bribery of Public Official Not Aggravated Felony(223 KB - 10/15/2010)
    The crime of bribery of a public official in violation of 18 U.S.C. § 201(b)(1)(A) is not an offense “relating to” commercial bribery and is therefore not an aggravated felony under INA §101(a)(43)(R). Matter of Gruenangerl, 25 I&N Dec. 351 (BIA 2010). AILA Doc. No. 10101545.
  • BIA Finds CSPA "Sought to Acquire" Requirement Not Equivalent to Filing an Application(480 KB - 10/13/2010)
    Unpublished BIA decision finds that the INA § 203(h)(1) requirement that an applicant have “sought to acquire” LPR status within one year of visa availability does not require the filing of an application, rejecting USCIS and DOS policy. The LAC submitted an amicus brief. AILA Doc. No. 10101363.
    AILA Doc. No. 10101363.
  • BIA on Interpretation of “Admitted” under INA §101(a)(13)(A)(593 KB - 9/27/2010)
    In an unpublished decision, the Board remanded to the IJ to determine whether the respondent was properly admitted to the United States under Matter of Quilantan following his entry through the Canadian border. Courtesy of Danny Garmo. AILA Doc. No. 10092741.
    AILA Doc. No. 10092741.
  • IJ Grants Asylum in Gang-Related Case(2122 KB - 9/27/2010)
    In an unpublished 9/27/10 decision, the IJ found the respondent qualified for asylum based on membership in the particular social group, “male siblings of those murdered by gangs who resist active recruitment efforts by the same gang.” Courtesy of Joanna Ritcey-Donohue. AILA Doc. No. 10092780.
    AILA Doc. No. 10092780.
  • BIA Finds Single Petty Offense Conviction Does Not Trigger Stop-Time Rule(20 KB - 9/17/2010)
    BIA held that a conviction for a single crime involving moral turpitude that qualifies as a petty offense is not an “offense referred to in section 212(a)(2)” of the INA for purposes of triggering the stop-time rule. Matter of Garcia, 25 I&N Dec. 332 (BIA 2010). AILA Doc. No. 10091769.
    AILA Doc. No. 10091769.
  • BIA Finds “One Central Reason” Standard Applies to Withholding of Removal(34 KB - 9/17/2010)
    BIA held that the “one central reason” standard that applies to asylum applications pursuant to INA §208(b)(1)(B)(i) also applies to applications for withholding of removal under §241(b)(3)(A). Matter of C-T-L, 25 I&N Dec. 341 (BIA 2010). AILA Doc. No. 10091767.
    AILA Doc. No. 10091767.
  • OSC Files Lawsuit Alleging Discrimination by Maricopa Community Colleges(2573 KB - 9/14/2010)
    OSC complaint filed on 8/30/10 with OCAHO against Maricopa County Community College District in Arizona, alleging that it engaged in discrimination by imposing unnecessary and discriminatory hurdles to employment for work authorized non-citizens. (U.S. v. MCCCD). AILA Doc. No. 10091462.
    AILA Doc. No. 10091462.
  • BIA Applies Notice Requirement for In Absentia Orders to CA11 Cases(17 KB - 9/14/2010)
    BIA remanded, finding that the holding in Matter of G-Y-R-, as to the notice required to authorize the entry of an in absentia order, is applicable to cases arising in CA11. Matter of Anyelo, 25 I&N Dec. 337 (BIA 2010). AILA Doc. No. 10091461.
    AILA Doc. No. 10091461.
  • IJ Grants Asylum to Indonesian Woman Citing Sexual Harassment(672 KB - 9/13/2010)
    The IJ granted asylum to an Indonesian woman who had experienced discrimination and sexual harassment due to her Chinese ethnicity, as well as persecution on account her membership in the Christian religion. Courtesy of Sun Jin Jung. AILA Doc. No. 10091360.
    AILA Doc. No. 10091360.
  • OCAHO Assesses Penalties against Drywall Company for I-9 Violations(55 KB - 9/7/2010)
    OCAHO directed the respondent to pay $32,316 in civil penalties for failure to prepare and/or properly complete I-9 forms, and found that ICE reasonably aggravated penalties for 57 violations involving unauthorized aliens. (United States v. DJ Drywall Inc., 7/14/10). AILA Doc. No. 10090761.
    AILA Doc. No. 10090761.
  • BIA Finds Spouse of Grandfathered 245(i) Derivative Is Not Independently Grandfathered(18 KB - 9/3/2010)
    The BIA held that an alien is not independently grandfathered for 245(i) adjustment simply by virtue of marriage to another alien who is grandfathered as a derivative beneficiary of a visa petition. Matter of Legaspi, 25 I&N Dec. 328 (BIA 2010) AILA Doc. No. 10090362.
    AILA Doc. No. 10090362.
  • BIA Reverses IJ Denial Cancellation of Removal Based on Discretion(603 KB - 9/2/2010)
    Unpublished, redacted 2010 BIA decision reversing IJ discretionary denial of cancellation of removal, finding significant social and humane considerations including close and extensive family ties to U.S. citizens. Courtesy of Robert Carpenter. AILA Doc. No. 10090232.
    AILA Doc. No. 10090232.
  • OCAHO Finds No Evidence of Discrimination in Case Involving Landscaping Company(70 KB - 9/2/2010)
    OCAHO granted Respondent’s motion for summary decision, rejecting the presumption that the mere filing of a labor certification with DOL means that potential H-2B workers will be given preference in hiring. (MAROC et. al. v. Heritage Landscaping Services, 6/17/10). AILA Doc. No. 10090264.
    AILA Doc. No. 10090264.
  • BIA on IJ Authority to Determine Frivolity of Asylum Applications(218 KB - 8/26/2010)
    A determination that an alien has filed a frivolous asylum application can be made in the absence of a final decision on the merits of the application or in circumstances where the asylum application has been withdrawn. Matter of X-M-C-, 25 I&N Dec. 322 (BIA 2010). AILA Doc. No. 10082637.
    AILA Doc. No. 10082637.
  • BIA Modifies Matter of Rocha Decision on Controlled Substance Traffickers(215 KB - 8/25/2010)
    An alien is removable, where an appropriate immigration official knows or has reason to believe alien is a controlled substance trafficker at time of admission. Matter of Rocha, modified. Matter of Casillas-Topete, 25 I&N Dec. 317 (BIA 2010). AILA Doc. No. 10082536.
    AILA Doc. No. 10082536.
  • BIA Companion Case to Cortez on Conviction for Crime Involving Moral Turpitude(19 KB - 8/17/2010)
    Conviction for crime involving moral turpitude does not render petitioner ineligible for cancellation of removal if crime is punishable by imprisonment for less than 1 year and falls under the petty offense exception. Matter of Pedroza, 25 I&N Dec. 312 (BIA 2010). AILA Doc. No. 10081766.
    AILA Doc. No. 10081766.
  • BIA Clarifies Almanza on Conviction for Crime Involving Moral Turpitude(38 KB - 8/17/2010)
    Conviction for crime involving moral turpitude for which a sentence of a year or longer may be imposed renders petitioner ineligible for cancellation of removal, regardless of eligibility for petty offense exception. Matter of Cortez, 25 I&N Dec. 301 (BIA 2010). AILA Doc. No. 10081765.
    AILA Doc. No. 10081765.
  • BIA Finds Grant of Family Unity Program Benefits is Not an “Admission”(20 KB - 8/6/2010)
    A grant of Family Unity Program benefits does not constitute an “admission” under INA §101(a)(13)(A) for purposes of establishing 7-year continuous residence requirement for cancellation of removal eligibility. Matter of Reza-Murillo, 25 I&N Dec. 296 (BIA 2010). AILA Doc. No. 10080666.
    AILA Doc. No. 10080666.
  • BIA Reaffirms Areguillin Interpretation of “Admitted” in INA §101(a)(13)(A)(36 KB - 7/30/2010)
    For purposes of establishing adjustment of status eligibility under INA §245(a), an alien seeking to show that he or she has been “admitted” to the U.S., need only prove procedural regularity in his or her entry. Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010). AILA Doc. No. 10073070.
    AILA Doc. No. 10073070.
  • BIA Finds Virginia Assault and Battery Is Not Categorically a Crime of Domestic Violence(27 KB - 7/20/2010)
    BIA remanded, holding that a misdemeanor offense of assault and battery of a family member in violation of the VA Code Annotated is not categorically a crime of domestic violence within the meaning of INA § 237(a)(2)(E). Matter of Velasquez, 25 I&N Dec. 278 (BIA 2010). AILA Doc. No. 10072066.
    AILA Doc. No. 10072066.
  • BIA on Delivery of a Simulated Controlled Substance Offense(20 KB - 7/7/2010)
    Offense of delivery of a simulated controlled substance in violation of TX law is not an aggravated felony under INA, but is a violation of a law relating to a controlled substance under former § 241(a)(2)(B)(i). Matter of Sanchez-Cornejo, 25 I&N Dec. 273 (BIA 2010). AILA Doc. No. 10070765.
    AILA Doc. No. 10070765.
  • BIA Overrules Matter of Saysana Decision on Mandatory Detention(23 KB - 6/24/2010)
    BIA held that a post-TPCR release from non-DHS custody must be directly tied to basis for detention in INA §236(c)(1)(A)–(D) to implicate the mandatory detention provision. AILA filed an amicus brief in the case. Matter of Garcia Arreola, 25 I&N Dec. 267 (BIA 2010). AILA Doc. No. 10062464.
    AILA Doc. No. 10062464.
  • BIA Holds Failure to Timely File Supporting Docs May Not Deem Application Abandoned(16 KB - 6/22/2010)
    When an application for relief is timely filed but supporting documents are not submitted within time established, IJ may deem opportunity to file documents waived but may not deem the application itself abandoned. Matter of Interiano-Rosa, 25 I&N Dec. 264 (BIA 2010). AILA Doc. No. 10062262.
    AILA Doc. No. 10062262.
  • BIA on Conditional Parole and Eligibility for Adjustment of Status(28 KB - 6/18/2010)
    BIA held that an alien released from custody on conditional parole under INA § 236(a)(2)(B) has not been “paroled into the United States” for purposes of establishing eligibility for adjustment of status under §245(a). Matter of Castillo-Padilla, 25 I&N 257 (BIA 2010). AILA Doc. No. 10061862.
    AILA Doc. No. 10061862.
  • BIA Holds Matter of Lozada Substantially Satisfied Where Prior Attorney Now Deceased(161 KB - 6/14/2010)
    BIA granted a motion to reopen an in absentia order of deportation based on Matter of Lozada. BIA found Matter of Lozada substantially satisfied where prior attorney is now deceased. Unpublished decision courtesy of Geoffrey A. Hoffman. AILA Doc. No. 10061466.
    AILA Doc. No. 10061466.
  • BIA Finds Antique Firearm Exception is Affirmative Defense in Removal Proceedings(19 KB - 6/11/2010)
    BIA vacated and remanded, finding that in removal proceedings, the antique firearm exception is an affirmative defense that must be sufficiently raised by an alien charged under INA § 237(a)(2)(C). Matter of Mendez-Orellana, 25 I&N Dec. 254 (BIA 2010). AILA Doc. No. 10061166.
    AILA Doc. No. 10061166.
  • BIA on Burden of Proof under §101(a)(13)(C)(v)(1949 KB - 5/20/2010)
    In an unpublished decision, the Board found that, for an LPR to be regarded as “seeking admission” under §101(a)(13)(C)(v), DHS must prove by clear, unequivocal, and convincing evidence that he has committed an offense identified in §212(a)(2). Courtesy of David Funke. AILA Doc. No. 10052080.
    AILA Doc. No. 10052080.
  • OCAHO on Substantive Violations in Connection with Form I-9 Completion(216 KB - 5/18/2010)
    On 3/18/10, OCAHO granted DHS motion for summary decision, finding that failure to properly complete section 2 of form I-9 within three business days of hiring an employee, is a substantive violation, not a technical or procedural one. AILA Doc. No. 10051868.
    AILA Doc. No. 10051868.
  • BIA Clarifies How an IJ Should Determine an Asylum Application is Frivolous(55 KB - 5/7/2010)
    The BIA ruled when determining a case to be frivolous, the IJ may incorporate any facts made in support of the adverse credibility finding and consider separately the applicant’s explanations on the inconsistencies. Matter of B-Y-, ID 3680, 25 I&N Dec. 236 (BIA 2010). AILA Doc. No. 10050763.
    AILA Doc. No. 10050763.
  • BIA on § 245(i) Adjustment of Status and Unauthorized Employment Restrictions(20 KB - 5/3/2010)
    BIA held that an alien otherwise eligible to adjust status under INA § 245(i), is not subject to §§245(c) unauthorized employment restrictions and exception in 245(k) that apply to adjustment of status under §245(a). Matter of Alania, 25 I&N Dec. 231 (BIA 2010). AILA Doc. No. 10050363.
    AILA Doc. No. 10050363.
  • DHS Urges BIA to Vacate Matter of Shanu (4/29/2010)
    Agreeing with amicus Legal Action Center, DHS urges BIA to overturn Matter of Shanu, which holds that “any admission” qualifies under INA §237(a)(2)(A)(i) (deportation ground based upon a conviction of a crime involving moral turpitude within five years of admission). AILA Doc. No. 10042960.
    AILA Doc. No. 10042960.
  • BIA on Removability for Conviction of Conspiracy to Commit Aggravated Felony(21 KB - 4/23/2010)
    BIA held that an alien only convicted of conspiracy to commit an aggravated felony and removable on the basis of that conviction under the INA may not also be found removable for underlying substantive offense. Matter of Richardson, 25 I&N Dec. 226 (BIA 2010). AILA Doc. No. 10042363.
    AILA Doc. No. 10042363.
  • BIA Finds LPR Who Entered Without Inspection “Admitted” on Status Adjustment Date(214 KB - 4/22/2010)
    BIA held that an alien who entered without inspection and later obtained LPR status through adjustment of status, must satisfy INA §212(h) residence requirement for inadmissibility waiver eligibility. Matter of Koljenovic, Int. Dec. 3677, 25 I&N Dec. 219 (BIA 2010). AILA Doc. No. 10042261.
    AILA Doc. No. 10042261.
  • BIA on Forced Sterilization and DOS Country Reports(36 KB - 3/26/2010)
    BIA held that evidence, considered in light of DOS country reports, failed to establish reasonable possibility that either respondent would be subject to forced sterilization for having two U.S.-born children. Matter of H-L-H & Z-Y-Z, 25 I&N 209 (BIA 2010). AILA Doc. No. 10032666.
    AILA Doc. No. 10032666.
  • BIA Finds Conviction for Infliction of Corporal Injury on Spouse is “Crime of Violence”(214 KB - 3/17/2010)
    BIA held that a misdemeanor conviction for willful infliction of corporal injury on a spouse under California law qualifies categorically as a conviction for a “crime of violence” under 18 U.S.C. § 16(a) (2006). Matter of Perez Ramirez, 25 I&N Dec. 203 (BIA 2010). AILA Doc. No. 10031772.
    AILA Doc. No. 10031772.
  • BIA on Family Violence Battery Conviction(1346 KB - 3/10/2010)
    BIA remanded, finding respondent's family violence battery conviction is not aggravated felony crime of violence because term of imprisonment of at least 1 year was not imposed. Matter of Kim (BIA 2010). Non-precedent decision courtesy of AILA member Mark Newman. AILA Doc. No. 10031068.
    AILA Doc. No. 10031068.
  • BIA on Application of the Modified Categorical Approach to Conviction Assessment(26 KB - 2/19/2010)
    In applying modified categorical approach to assess conviction, it is proper to consider police reports’ contents as part of conviction record if incorporated into plea or admitted by alien in criminal proceedings. Matter of Milian-Dubon, 25 I&N Dec. 197 (BIA 2010). AILA Doc. No. 10021967..
    AILA Doc. No. 10021967.
  • BIA on “Changed Circumstances” Related to Asylum Application Filing Delays(20 KB - 2/1/2010)
    The particular circumstances related to delays in filing an asylum application must be evaluated to determine whether the application was filed “within a reasonable period given those ‘changed circumstances.’” Matter of T-M-H- & S-W-C-, 25 I&N Dec. 193 (BIA 2010). AILA Doc. No. 10020162.
    AILA Doc. No. 10020162.
  • BIA Reaffirms Matter of Briones on Ineligibility for §245(i) Adjustment of Status(22 KB - 1/29/2010)
    An alien who is inadmissible under INA §212(a)(9)(C)(i), is ineligible for adjustment of status under INA §245(i). Matter of Briones, 24 I&N Dec. 355 (BIA 2007) reaffirmed. Matter Diaz and Lopez, 25 I&N Dec. 188 (BIA 2010). AILA Doc. No. 10012968.
    AILA Doc. No. 10012968.
  • BIA on Stepparent Qualification as “Parent” to Establish Hardship under INA §240A(b)(1)(D)(204 KB - 1/27/2010)
    A stepparent who qualifies as a “parent” under INA §101(b)(2), at time of proceedings is a qualifying relative for purposes of establishing exceptional and extremely unusual hardship for cancellation of removal under INA. Matter of Morales, 25 I&N Dec. 186 (BIA 2010). AILA Doc. No. 10012764.
    AILA Doc. No. 10012764.
  • BIA Finds Death of Petitioning Spouse in Conditional Period Excuses I-751 Joint Filing Requirement(22 KB - 1/26/2010)
    A conditional permanent resident seeking to remove conditional basis of status, who timely filed petition and appeared for interview, doesn’t need separate hardship waiver if petitioning spouse died in 2-year conditional period. Matter of Rose, 25 I&N Dec. 181 (BIA 2010). AILA Doc. No. 10012671.
    AILA Doc. No. 10012671.
  • BIA Vacates Matter of Perez-Vargas; Finds IJs Have Jurisdiction Over §204(j) Portability Decisions(42 KB - 1/21/2010)
    BIA held that IJs can decide if an I-140 petition remains valid under INA §204(j) after the beneficiary changes jobs or employers. BIA adopted arguments of AIC, argued in an amicus brief signed by AILA, and the parties. Matter of Neto, 25 I&N Dec. 129 (BIA 2010).
    AILA Doc. No. 10012162.
  • BIA on Advisals Required Upon Granting Voluntary Departure and Proof of Posting Bond(23 KB - 1/14/2010)
    BIA remanded for IJ to grant a new period of voluntary departure and to provide required advisals, where the IJ did not provide all advisals required upon granting voluntary departure and respondent failed to submit timely proof to BIA that voluntary departure bond had been posted. Matter of Gamero, 25 I&N Dec. 164 (BIA 2010). AILA Doc. No. 10011461.
    AILA Doc. No. 10011461.
  • BIA on the Rebuttable Presumption of Reciprocal Disciplinary Sanctions(29 KB - 1/8/2010)
    The BIA found that where the respondent was disbarred in New York and he failed to rebut the presumption that reciprocal discipline should be imposed, his suspension from practice before the BIA, the Immigration Courts, and the DHS for 7 years was an appropriate sanction. Matter of Kronegold, 25 I&N Dec. 157 (BIA 2010). AILA Doc. No. 10010862.
    AILA Doc. No. 10010862.