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2002 - 2001

BIA Decisions for 2001 - 2002.
  • BIA on NTA Service by Certified Mail (12/19/2002)
    The BIA held that service of an NTA and hearing notice by certified mail was proper, even though it was returned and marked “unclaimed.” (Matter of M-D-, 12/18/02)
    AILA Doc. No. 02121940.
  • BIA Finds Service of NTA to Minor's Uncle was Improper (12/5/2002)
    The BIA held that removal proceedings against a 7-year-old were properly terminated because the NTA was served only on the child’s uncle and no effort was made to serve the notice on the child’s parents in the U.S. (Matter of Andino, 12/4/02)
    AILA Doc. No. 02120542.
  • BIA Says Misdemeanor Drug Possession Is Not an Aggravated Felony (11/1/2002)
    The BIA held that in accordance with Second Circuit precedent, an individual who has been convicted twice of misdemeanor marijuana possession under New York law has not been convicted of an aggravated felony under INA §101(a)(43)(B). (Matter of Elgendi, 10/31/02)
    AILA Doc. No. 02110142.
  • BIA Vacates Grant of Relief to 12-Year-Old (12/9/2002)
    The BIA held that the INS met its burden of establishing the minor respondent’s removability and that she was properly notified of her hearing by mailing the NTA to the last address provided by her parent, with whom she was residing. (Matter of Gomez-Gomez, BIA 12/4/02)
    AILA Doc. No. 02120945.
  • BIA Says CT 3rd Degree Assault Is a Crime of Violence (9/26/2002)
    The BIA held that third-degree assault involving the intentional infliction of physical injury upon another, in violation of the Connecticut law, is an aggravated felony crime of violence under §101(a)(43)(F). (Matter of Martin, 9/26/02)
    AILA Doc. No. 02092640.
  • BIA Vacates Grant of Deferral of Removal Under CAT (9/25/2002)
    The BIA held that the respondent, who was convicted of a U.S. drug offense, failed to establish that it is more likely than not that she will be tortured as a result of that conviction if she is deported to Nigeria. (Matter of M-B-A-, 9/24/02)
    AILA Doc. No. 02092531.
  • BIA Finds IJ Erred in Denying Cancellation for Mother of Six (9/20/2002)
    The BIA held that a single mother from Mexico established eligibility for cancellation of removal where her four USC children would suffer exceptional and extremely unusual hardship upon her removal. (Matter of Recinas, 5/19/02)
    AILA Doc. No. 02092039.
  • BIA Remands Case for Deficiency in IJ’s Factual Findings (9/13/2002)
    The BIA held that under new regulations effective 9/25/02, it has limited fact-finding on appeal which heightens the need for IJs to include clear and complete findings of fact in their decisions. (Matter of S-H-, 9/12/02)
    AILA Doc. No. 02091370.
  • BIA Imputes Parent’s Lawful Residence to Minor to Establish Domicile(158 KB - 6/11/2002)
    The BIA held that the period of an alien’s residence in the U.S. after admission as a nonimmigrant may be considered in calculating the 7 years of continuous residence required to establish eligibility for cancellation of removal under INA §240A(a)(2). (Matter of Blancas-Lara, 6/10/02)
    AILA Doc. No. 02061143.
  • BIA Says Misdemeanor Sexual Abuse of a Minor Is an Aggravated Felony(489 KB - 6/4/2002)
    The BIA held that a misdemeanor offense of sexual abuse of a minor constitutes an aggravated felony under INA §101(a)(43). (Matter of Small, 6/4/02)
    AILA Doc. No. 02060442.
  • BIA on Termination of Physical Presence for Cancellation(85 KB - 5/29/2002)
    The BIA held that for purposes of cancellation of removal under INA §240A(b), continuous physical presence ends at the time an alien is compelled to depart the United States under threat of deportation or removal proceedings. (Matter of Romalez-Alcaide, 5/29/02)
    AILA Doc. No. 02052940.
  • BIA Finds Marijuana Misdemeanors Not Tantamount to Aggravated Felony (5/15/2002)
    The BIA held that determining whether an offense is a felony under 18 USC §924(c)(2) depends on the classification of the offense under the law of the convicting jurisdiction. (Matter of Santos-Lopez, 5/14/02)
    AILA Doc. No. 02051540.
  • BIA Overrules K–V–D– in Class 4 Felony Drug Case(105 KB - 5/13/2002)
    The BIA held that the determination as to whether a state drug offense is a drug trafficking aggravated felony shall be made by reference to federal circuit case law and not any BIA-adopted standard. (Matter of Garcia, 5/13/02)
    AILA Doc. No. 02051442.
  • AG Reverses LPR Status for Woman Convicted of Killing Child (5/9/2002)
    The BIA held that persons convicted of violent crimes are not eligible for waivers under INA §209(c) except where there are national security or foreign policy concerns, or a clear demonstration that denial will result in exceptional and extremely unusual hardship. (Matter of Jean, 5/2/02)
    AILA Doc. No. 02050942.
  • BIA on "Exceptional and Extremely Unusual" Hardship (4/4/2002)
    The BIA held that for purposes of non-LPR cancellation, the respondent must demonstrate hardship that is substantially different from or beyond that which would normally be expected from the deportation of an alien with close family members in the U.S. (Matter of Andazola-Rivas, 4/3/02)
    AILA Doc. No. 02040433.
  • AG Says Drug Trafficking Offenses are Presumptively "Particularly Serious"(57 KB - 3/7/2002)
    The Attorney General reversed three BIA decisions and held that drug trafficking offenses presumptively constitute particularly serious crimes under INA 241(b)(3)(B)(ii). (Matter of Y-L-, 3/5/02)
    AILA Doc. No. 02030734.
  • BIA Says Perjury Under California Law Is an Aggravated Felony (10/17/2001)
    The BIA held that a conviction for perjury under Cal. Penal Code §118(a) is an aggravated felony under INA §101(a)(43)(S). (Matter of Martinez-Recinos, 10/15/01)
    AILA Doc. No. 01101701.
  • BIA Defers Removal of Iranian Man Under Article 3 of CAT (5/6/2002)
    The BIA granted deferral of removal under CAT for an Iranian Christian where it was more likely than not that he will be tortured if deported to Iran based on religion, ethnicity, duration of his residence in the U.S., and drug-related convictions. (Matter of G-A-, 5/2/02)
    AILA Doc. No. 02050640.
  • BIA Issues Policy Change on Untimely Asylum Motions(25 KB - 4/10/2002)
    The BIA is withdrawing in 90 days from its policy of granting, on its own motion under 8 CFR §3.2(a), untimely motions to reopen asylum claims that are based solely on coercive population control policies. (Matter of G-C-L-, 4/10/02)
    AILA Doc. No. 02041033.
  • BIA Denies Asylum to Admitted Member of Mujahedin(18 KB - 4/5/2002)
    The BIA held that the USA PATRIOT Act does not change the standard for determining asylum or withholding of removal — that there is reasonable ground to believe that an alien is engaged in, or is likely to engage in, terrorist activity or is a danger to the U.S. (Matter of U–H–, 4/5/02)
    AILA Doc. No. 02040533.
  • BIA Overrules Precedent; Says DUI Is Not a Crime of Violence(67 KB - 4/4/2002)
    The BIA held that driving under the influence in violation of Massachusetts law is not a felony involving a substantial risk that physical force against a person or property of another may be used and it is not a crime of violence. (Matter of Ramos, 4/4/02)
    AILA Doc. No. 02040434.
  • BIA Dismisses CAT Claim for Haitian Man(92 KB - 3/25/2002)
    The BIA held that an alien seeking protection under CAT must establish that it is more likely than not that he will be tortured in the country of removal, and that evidence of torture must consist of five elements set forth at 8 CFR §208.18(a). (Matter of J-E-, 3/22/02)
    AILA Doc. No. 02032532.
  • BIA Excuses Minor for Failing to File for Asylum(18 KB - 3/12/2002)
    The BIA held that the unaccompanied minor who was in INS custody pending removal proceedings during the 1-year period following his arrival in the U.S. established extraordinary circumstances excusing his failure to file for asylum within 1 year. (Matter of Y-C-, 3/11/02)
    AILA Doc. No. 02031271.
  • BIA Revisits Removal Due to Marriage, But with Conditions(60 KB - 3/7/2002)
    The BIA held that a properly filed motion to reopen for adjustment based on a marriage entered into after commencement of proceedings may be granted in the exercise of discretion, notwithstanding the pendency of a visa petition. (Matter of Velarde-Pacheco, 3/6/02)
    AILA Doc. No. 02030733.
  • BIA on Impact of Deferred Adjudication of Guilt(107 KB - 2/19/2002)
    The BIA held that an alien whose adjudication of guilt was deferred under Texas law following a plea of guilty to possession of a controlled substance is considered "convicted" for immigration purposes. (Matter of Salazar-Regino, 2/14/02)
    AILA Doc. No. 02021939.
  • BIA Finds Possession of a Firearm by a Felon Is an Aggravated Felony(48 KB - 1/16/2002)
    The BIA held that possession of a firearm by a felon in violation of Cal. Penal Code §12021(a)(1) is an aggravated felony under INA §101(a)(43)(E)(ii). (Matter of Vasquez-Muniz, 1/15/02)
    AILA Doc. No. 02011633.
  • BIA Upholds Asylum Grant to Nicaraguan Street Child(299 KB - 12/7/2001)
    In nonprecedent decision, the BIA dismissed the appeal of the IJ's grant of asylum based on social group (abandoned street children in Nicaragua) and imputed political opinion. (Matter of B-F-O-, 11/6/01)
    AILA Doc. No. 01120731.
  • BIA Says No Threshold Test in Cancellation of Removal (10/30/2001)
    The BIA held that a grant of relief from removal under INA §240A(a) requires simple "totality of the evidence" balancing and that the IJ erred in requiring a showing of "unusual or outstanding equities." (Matter of Sotelo-Sotelo, 10/25/01)
    AILA Doc. No. 01103031.
  • BIA: Lack of Receipt of NTA Precludes In Absentia Order of Removal (10/25/2001)
    En banc BIA not persuaded by alien’s failure to comply with her affirmative obligation to provide current address. Two Board Members dissent. In re G-Y-R-, 23 I&N Dec. 181 (Int. Dec. 3458, 10/19/01)
    AILA Doc. No. 01102433.
  • Motion to Reopen Deemed Abandoned Due to Alien's Departure (10/22/2001)
    En banc BIA finds itself without jurisdiction over previously granted motion to reopen, which, it rules, was withdrawn pursuant to 8 CFR §3.2(d) by alien's departure. In re Crammond, 23 I&N Dec. 179 (Int. Dec 3457, 10/16/01) (vacating 23 I&N Dec 9).
    AILA Doc. No. 01102231.
  • Foreign Drug Conviction Bars 245 Applicant (8/30/2001)
    Board of Immigration Appeals (BIA) in In re Dillingham, A28-992-806 (BIA August 20, 1997) held that the expungement of a respondent’s foreign drug conviction pursuant to a foreign rehabilitation statute does not prevent a finding of inadmissibility pursuant to section 212(a)(2)(A)(i)(II) of the INA.
    AILA Doc. No. 01083079.
  • N-J-B- Vacated (8/30/2001)
    Attorney General Vacates Matter of N-J-B- and Announces Innitiative on Suspension of Deportation.
    AILA Doc. No. 01083078.
  • In re Rodriguez-Tejedor, 23 I&N Dec. 153 (7/24/01) (7/26/2001)
    In Int. Dec. 3454, the automatic citizenship provisions of INA §320 as amended by the CCA of 2000, are not retroactive, and do not apply to someone who resided in the U.S. with his USC parents or adoptive parents as an LPR while under 18, but who was over 18 on the CCA effective date.
    AILA Doc. No. 01072601.
  • In re Olivares-Martinez, 23 I&N Dec.148, BIA 7/3/01 (7/3/2001)
    In Int. Dec. 3453, under U.S. v. Chapa-Garza and U.S. v. Hernandez-Avalos, a Texas conviction for felony DWI is not classifiable as a crime of violence conviction under 18 USC §16(b) (1994) for purposes of removability in cases arising in the Fifth Circuit. Matter of Puente, Int. Dec. 3412, will not be applied.
    AILA Doc. No. 01070334.
  • Finnair Flight AY103, 23 I&N Dec. 140 (BIA 6/26/01) (6/27/2001)
    In Int. Dec. 3452, a carrier is subject to a fine under INA §273(a) for bringing an alien passenger to the United States without a valid nonimmigrant visa even though the passenger was subsequently granted a waiver of the nonimmigrant documentary requirements pursuant to 8 CFR §212.1(g) (1997).
    AILA Doc. No. 01062731.
  • In re Rojas, 23 I&N Dec. 117 (BIA 5/18/01) I.D. 3451 (5/23/2001)
    A criminal alien who is released from criminal custody after the expiration of the Transition Period Custody Rules is subject to mandatory detention pursuant to §236(c) of the INA, 8 USC §1226(c) (Supp. V 1999), even if the alien is not immediately taken into custody by the INS when released from incarceration.
    AILA Doc. No. 01052304.
  • In re Artigas, 23 I&N Dec. 99 (BIA 5/11/01) #3450 (5/14/2001)
    An immigration judge has jurisdiction to adjudicate an application for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, when the respondent is charged as an arriving alien without a valid visa or entry document in removal proceedings. (See PDF)
    AILA Doc. No. 01051406.
  • In re Torres-Varela, 23 I&N Dec. 78 (BIA 5/9/01) Int. Dec. 3449 (5/10/2001)
    Under Arizona law, the offense of aggravated driving under the influence (DUI) with two or more prior DUI convictions is not a crime involving moral turpitude. Matter of Lopez-Meza, Int. Dec. 3423 (BIA 1999) distinguished. (See PDF)
    AILA Doc. No. 01051003.
  • In re Patino, 23 I&N Dec. 74 (BIA 5/9/01) Int. Dec. 3448 (5/10/2001)
    A party wishing to challenge the validity of an appeal waiver may file either a motion to reconsider with the immigration judge or an appeal directly with the BIA. (See PDF)
    AILA Doc. No. 01051002.
  • In re Kao, In re Lin, 23 I&N Dec. 45 (BIA 5/4/01) (5/8/2001)
    In Int. Dec. 3446, when evaluating an application for suspension of deportation, the hardship to the applicant’s U.S. citizen child must be given careful consideration, as the applicant’s eligibility for relief may be established by demonstrating that deportation would result in extreme hardship to the child. (See PDF)
    AILA Doc. No. 01050805.
  • In re Aguinaga, 23 I&N Dec. 56 (BIA 5/4/01) (3447) (5/8/2001)
    To establish exceptional and extremely unusual hardship, an applicant for cancellation of removal must demonstrate that his or her spouse, parent, or child would suffer a hardship substantially beyond what would ordinarily be expected from the alien’s deportation, but need not show that it would be unconscionable. (See PDF)
    AILA Doc. No. 01050804.
  • In re Herrera, 23 I&N Dec. 43 (BIA 2001), Int. Dec. 3445 (4/13/2001)
    Respondent’s motion for a stay of deportation, pending his motion to reopen and reconsider, is granted in light of U.S. v. Chapa-Garza, which held that a conviction for DWI in violation of §49.09 of the Texas Penal Code is not a conviction for a crime of violence under INA §101(a)(43)(F).
    AILA Doc. No. 01041372.
  • In re Northwest Airlines NW1821, 23 I&N Dec. 38 (2001) (4/2/2001)
    In Int. Dec. 3444, a carrier is subject to fine under §231(b) of the INA, 8 USC §1221(b) (Supp. IV 1998), when it fails to file a properly completed Form I-94T (Arrival-Departure Record (Transit Without Visa)) for an alien who is a “transit without visa” passenger not departing directly on the same flight. (see PDF)
    AILA Doc. No. 01040204.
  • In re Crammond, 23 I&N Dec. 9 (BIA 2001) (Int. Dec. 3443) (3/22/01) (3/28/2001)
    A conviction for “murder, rape, or sexual abuse of a minor” must be for a felony offense in order for the crime to be an aggravated felony under INA §101(a)(43)(A). In determining whether a state conviction is for a felony offense for immigration purposes, the BIA applies the federal definition of a felony set forth at 18 USC §3559(a)(5) (1994). (See PDF)
    AILA Doc. No. 01032801.
  • In re Goolcharan, 23 I&N Dec. 5 (BIA 2001), Decided 2/1/01 (2/6/2001)
    The regulatory deadline for filing a motion to reopen or motion to reconsider before the IJ is determined by the date on which the IJ entered a final administrative order, and the regulatory deadline is not affected by subsequent actions taken by the INS in the course of executing the IJ’s order (see PDF file).
    AILA Doc. No. 01020609.
  • Matter of R-A- Vacated(18 KB - 1/22/2001)
    The Attorney General, on her last day in office, vacated Matter of R-A- and remanded it to the BIA to stay reconsideration until after the 12/7/00 regulations are finalized, at which time the decision is to be reconsidered in light of that rule. AILA Doc. No. 01012215
    AILA Doc. No. 01012215.
  • In re Devison-Charles, Int. Dec. 3435 (9/12/00) (1/19/2001)
    This opinion has been reissued to include a decision on a motion to reconsider filed by the INS. Previous Holding: Under New York Law, the resentencing of a youthful offender following a violation of probation does not convert the youthful offender adjudication into a judgment of conviction.
    AILA Doc. No. 01011901.