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Cases & Decisions
Department of Justice/EOIR
OCAHO Dismisses Untimely Complaint
(473 KB - 12/17/2012)
OCAHO held that the complaint was untimely and that equitable tolling did not apply since the filing was late because the complainant failed to inform OSC when he moved. (
Sall v. Wal-Mart Stores
, 11/29/12) AILA Doc. No. 12121746.
AILA Doc. No. 12121746.
OCAHO Denies Request for Administrative Review
(478 KB - 12/14/2012)
OCAHO denied the untimely request for administrative review, finding that the respondent failed to file an answer to the complaint and neglected to explain why it failed to respond after being given an opportunity to show cause. (
U.S. v. Cordin Company
, 12/7/12) AILA Doc. No. 12121456.
AILA Doc. No. 12121456.
OCAHO Dismisses Discrimination Complaint
(475 KB - 12/14/2012)
OCAHO held that the complainant did not show a connection between the Wal-Mart store firing him and his status as a United States citizen. Rather, the only basis articulated for his claims of discrimination was national origin. (
Ba v. Wal-Mart Store 1199
, 11/29/12) AILA Doc. No. 12121452.
AILA Doc. No. 12121452.
OCAHO Denies Employer Respondent’s Motion for Summary Judgment
(480 KB - 12/4/2012)
OCAHO denied the employer respondent’s summary judgment motion, which argued it was exempt from INA §274B because it had less than four employees and thus that OCAHO did not have jurisdiction to review the complaint. (
Cormia v. Home Care Giver Services
, 11/16/12) AILA Doc. No. 12120455.
AILA Doc. No. 12120455.
BIA on Crime of Stalking under INA §237(a)(2)(E)(i)
(481 KB - 12/4/2012)
The Board clarified the definition of stalking for the purposes of INA §237(a)(2)(E)(i), and held that a conviction under section 646.9 of the California Penal Code qualifies as a “crime of stalking.”
Matter of Sanchez-Lopez
, 26 I&N Dec. 71 (BIA 2012). AILA Doc. No. 12120341.
AILA Doc. No. 12120341.
BIA on Determining Whether LPR is Applicant for Admission
(518 KB - 11/19/2012)
The Board held that when DHS paroled a returning LPR, it did not need to have all the evidence to sustain its burden of proving the LPR was an applicant for admission until the time of the removal proceeding.
Matter of Valenzuela-Felix
, 26 I&N Dec. 53 (BIA 2012). AILA Doc. No. 12111930.
AILA Doc. No. 12111930.
OCAHO Dismisses Complaint with Prejudice
(470 KB - 11/19/2012)
OCAHO dismissed the complaint, in which the complainant had alleged that his former employer discriminated against him by firing him because of his citizenship status, holding that the complainant abandoned the complaint. (
Raffay v. Western Digital
, 11/14/12) AILA Doc. No. 12111958.
AILA Doc. No. 12111958.
OCAHO Reduces Penalty for I-9 Violations
(490 KB - 11/19/2012)
OCAHO found the employer to be liable for 104 violations of 8 U.S.C. § 1324a(b), including failure to present I-9 forms for 10 individuals. It also reduced the total penalty from $86,933 to $17,270. (
U.S. v. March Construction
, 11/13/12) AILA Doc. No. 12111957.
AILA Doc. No. 12111957.
OCAHO Grants Motion for Protective Order
(486 KB - 11/19/2012)
OCAHO granted the Office of Special Counsel’s (OSC) motion for protective order, precluding the respondent from deposing several OSC employees including opposing counsel in the case. (
U.S. v. Mar-Jac Poultry
, 10/12/12) AILA Doc. No. 12111956.
AILA Doc. No. 12111956.
OCAHO Dismisses Several Allegations Against Employer
(469 KB - 11/19/2012)
OCAHO dismissed several allegations where the only violation was the failure to complete the I-9 form within 3 days of hire, and reduced penalties for the other violations after considering the size of the company. (
U.S. v. Forsch Polymer Corporation
, 8/24/12) AILA Doc. No. 12111955.
AILA Doc. No. 12111955.
OCAHO Partially Grants Respondent’s Motion for Summary Decision
(482 KB - 11/19/2012)
OCAHO granted the respondent’s motion for partial summary decision with respect to violations involving the I-9s of 4 employees, but granted the government’s cross motion with respect to the I-9s of 6 employees. (
United States v. BKR Restaurants
, 8/20/12) AILA Doc. No. 12111954.
AILA Doc. No. 12111954.
OCAHO Denies Respondent’s Motion for Summary Decision
(489 KB - 11/19/2012)
OCAHO denied the respondent’s motion for partial summary decision and granted the government’s cross-motion with respect to a number of I-9 violations. OCAHO also denied respondent’s motion to strike and request for attorneys’ fees. (
U.S. v. Barnett Taylor
, 8/20/12) AILA Doc. No. 12111953.
AILA Doc. No. 12111953.
BIA on Definition of Particularly Serious Crime for Asylum Purposes
(476 KB - 11/16/2012)
The Board held that
Matter of N-A-M-
, which held that an offense need not be an aggravated felony to be considering a particularly serious crime for purposes of barring asylum, applies to cases in the Third Circuit.
Matter of M-H-,
26 I&N Dec. 46 (BIA 2012). AILA Doc. No. 12111641.
AILA Doc. No. 12111641.
BIA Overturns IJ, Grants Non-LPR Cancellation of Removal
(589 KB - 11/7/2012)
In an unpublished decision, the Board granted non-LPR cancellation, holding that the respondent met the “exceptional and extremely unusual” hardship standard based on the qualifying child's "extraordinary academic achievements and potential." Courtesy of Nicolas Chavez.
AILA Doc. No. 12110750.
BIA on Jurisdiction After Respondent Voluntarily Returned to Mexico
(465 KB - 11/7/2012)
The Board held that the respondent’s voluntary return to Mexico did not divest the IJ of jurisdiction, and that the IJ erred in terminating removal proceedings instead of proceeding with an in absentia hearing.
Matter of Sanchez-Herbert
, 26 I&N Dec. 43 (BIA 2012). AILA Doc. No. 12110749.
AILA Doc. No. 12110749.
BIA Questions on Particular Social Group
(538 KB - 11/6/2012)
The BIA issued a notice of oral argument in an asylum case before the BIA. The noticed listed questions related to particular social group claims for counsel to be prepared to discuss at the hearing, including questions on the social visibility and particularity requirements. AILA Doc. No. 12110659.
AILA Doc. No. 12110659.
IJ Grants El Salvadoran Asylum Case Based on Religious Persecution
(2497 KB - 10/29/2012)
In an unpublished decision, the IJ granted asylum and held that the respondent showed a well-founded fear of persecution if he were to return to El Salvador and continue to proselytize and speak out against gangs as part of his religious practice. Courtesy of Ronald Pabis. AILA Doc. No. 12102931.
AILA Doc. No. 12102931.
BIA Holds “Single Offense” Exception Can Include More Than One Statutory Crime
(474 KB - 10/26/2012)
The Board held the respondent was not subject to mandatory detention because her convictions for marijuana and drug paraphernalia possession were related to a single incident and covered by the §237(a)(2)(B)(i) exception.
Matter of Davey
, 26 I&N Dec. 37 (BIA 2012). AILA Doc. No. 12102660.
AILA Doc. No. 12102660.
BIA Finds Texas Conviction for Resisting Arrest Is Not CIMT
(1850 KB - 10/15/2012)
In an unpublished decision, the Board ruled that a Texas conviction for resisting arrest only qualifies as a CIMT if there is an intentional act combined with a meaningful level of bodily harm to the victim. Courtesy of Sonali Patnaik.
AILA Doc. No. 12101546.
BIA Grants Asylum to Iraqi Respondent
(655 KB - 10/15/2012)
In an unpublished decision, the Board reversed the IJ’s decision and granted asylum, noting that the IJ’s speculations relating to the respondent’s motive for traveling to the U.S. were not supported by the record. Courtesy of Robert W. DeKelaita. AILA Doc. No. 12101544.
AILA Doc. No. 12101544.
BIA Remands Case to Determine Whether Asylum Applicant Could Have Relocated
(486 KB - 10/15/2012)
The Board remanded the asylum case to the IJ to determine whether the respondent could avoid future persecution by relocating to another part of Sri Lanka, and whether it would be reasonable to expect him to do so.
Matter of M-Z-M-R-,
26 I&N Dec. 28 (BIA 2012). AILA Doc. No. 12101541.
AILA Doc. No. 12101541.
BIA Holds Arizona Reckless Endangerment Conviction is CIMT
(482 KB - 9/24/2012)
The Board held that a conviction for “recklessly endangering another person with a substantial risk of imminent death” is a CIMT, despite defining reckless to include when a person is unaware of the risk due to intoxication.
Matter of Leal,
26 I&N Dec. 20 (BIA 2012). AILA Doc. No. 12092450.
AILA Doc. No. 12092450.
OCAHO Reduces I-9 Noncompliance Penalties for Small Employer
(482 KB - 9/24/2012)
OCAHO reduced the fines assessed by ICE on a small business from $52,529 to $20,000. The employer had failed to prepare any I-9s for employees because he said that he was unaware of the I-9 employer responsibilities. (
U.S. v. Santiago’s Repacking,
8/24/12) AILA Doc. No. 12092449.
AILA Doc. No. 12092449.
BIA Holds Special Rule Cancellation Applicant Not Eligible for 212(h) Waiver
(486 KB - 9/20/2012)
The Board held that an applicant for special rule cancellation of removal cannot use a 212(h) waiver to overcome §240A(b)(2)(A)(iv), which bars persons who are inadmissible under §212(a)(2) from applying for cancellation.
Matter of Y-N-P-,
26 I&N Dec. 10 (BIA 2012).
AILA Doc. No. 12092054.
IJ Grants Asylum in Gang Retaliation Case
(2697 KB - 9/19/2012)
The IJ found that the asylum applicant demonstrated a well-founded fear of persecution because a Salvadoran gang issued targeted threats to her and her family members due to her late brother’s membership in a rival gang. Courtesy of Jean Han. AILA Doc. No. 12091953.
AILA Doc. No. 12091953.
BIA Reverses IJ, Grants Cancellation in Unpublished Decision
(5766 KB - 9/19/2012)
In an unpublished decision, the Board granted cancellation of removal, finding the respondent credible and noting that his drug possession arrests did not warrant a discretionary denial as he denied culpability and was not prosecuted. Courtesy of Fausto Falzone.
AILA Doc. No. 12091952.
BIA Holds Asylum Applicant Committed Serious Nonpolitical Crime
(485 KB - 9/14/2012)
The Board held that the applicant had committed a serious, nonpolitical crime in Cote d’Ivoire and was ineligible for relief after finding that the criminal conduct was disproportionate to its political character.
Matter of E-A-,
26 I&N Dec. 1 (BIA 2012). AILA Doc. No. 12091444.
AILA Doc. No. 12091444.
IJ Grants Asylum to Liberian Woman Captured During War
(6267 KB - 8/30/2012)
In an unpublished decision, the immigration judge held that the respondent demonstrated that she suffered past persecution in Liberia on account of her membership in the particular social group of Liberian women who were captured during the war and used as sex slaves. AILA Doc. No. 12083061.
AILA Doc. No. 12083061.
BIA Holds IJ Lacks Jurisdiction to Review DHS Termination of Asylum
(487 KB - 8/27/2012)
The Board found that an immigration judge does not have jurisdiction under 8 C.F.R. § 1208.24(f) to review DHS’s termination of a noncitizen’s asylum status pursuant to 8 C.F.R. § 208.24(a).
Matter of A-S-J-,
25 I&N Dec. 893 (BIA 2012). AILA Doc. No. 12082741.
AILA Doc. No. 12082741.
BIA Finds Advance Parole Not “Departure” Under INA § 212(a)(9)(B)(i)(II) (Updated 8/20/12)
(501 KB - 8/20/2012)
The BIA found the respondents, who applied for adjustment under 245(i) and left on advance parole, did not make a departure which resulted in their inadmissibility under §212(a)(9)(B). Revised 8/16/12.
Matter of Arrabally and Yerrabelly
, 25 I&N Dec. 771 (BIA 2012). AILA Doc. No. 12041840.
AILA Doc. No. 12041840.
BIA Faults IJ for Defects in Removal Hearing
(471 KB - 8/17/2012)
The Board held that the IJ should have given the detained respondent time to obtain an attorney, advised him of possible eligibility for asylum or withholding, and considered his eligibility for voluntary departure.
Matter of C-B-,
25 I&N Dec. 888 (BIA 2012). AILA Doc. No. 12081741.
AILA Doc. No. 12081741.
BIA Finds Utah Aggravated Assault Is Not a Categorical Crime of Violence
(1016 KB - 8/8/2012)
In an unpublished decision, the BIA remanded the case to the IJ, finding that Utah Code §76-5-103 is a divisible statute and that a conviction for aggravated assault under this provision is not a categorical crime of violence under 8 USC §16(b). Courtesy of Christopher Keen. AILA Doc. No. 12080854.
AILA Doc. No. 12080854.
BIA on Evidence of Hardship to Child for Cancellation of Removal
(464 KB - 8/8/2012)
The BIA held that a cancellation applicant need not provide evidence of the child’s care and support upon the alien’s removal if the child will remain in the U.S. with the other parent, even if undocumented.
Matter of Calderon-Hernandez,
25 I&N Dec. 885 (BIA 2012).
AILA Doc. No. 12080850.
BIA on Adjustment of Status for K-4 Nonimmigrants
(491 KB - 8/7/2012)
The BIA held that a K-4 nonimmigrant, who was over 18 years of age when her K-3 mother married the K petitioner, is ineligible for adjustment of status under INA §245(a) because she cannot qualify as the petitioner’s “stepchild.” (
Matter of Akram,
8/1/12) AILA Doc. No. 12080749.
AILA Doc. No. 12080749.
OCAHO Reduces Penalties for I-9 Noncompliance
(477 KB - 7/30/2012)
OCAHO reduced the penalty sought from the respondent employer for I-9 noncompliance from $12,523 to $9,600 after considering the seriousness of the violations and noting the employer did not act in bad faith. (
U.S. v. Stanford Sign and Awning,
6/21/12) AILA Doc. No. 12073040.
AILA Doc. No. 12073040.
OCAHO on Constructive Knowledge of Employment Eligibility
(483 KB - 7/30/2012)
OCAHO found that, while the respondent employer did breach its duty to reverify the employment eligibility of three employees upon rehire, it did not hire the employees knowing them to be unauthorized for employment in the U.S. (
U.S. v. Associated Painters
, 5/30/12) AILA Doc. No. 12073060.
AILA Doc. No. 12073060.
BIA Holds K-4 Visa Holder Cannot Adjust Status
(511 KB - 7/23/2012)
The Board held that the K-4 visa holder could only adjust status based on the I-130 filed by the K visa petitioner, and not on the basis of her own subsequent marriage to a US citizen.
Matter of Valenzuela
, 25 I&N Dec. 867 (BIA 2012). AILA Doc. No. 12072343.
AILA Doc. No. 12072343.
BIA Holds Municipal Court Judgment Is Conviction for Immigration Purposes
(514 KB - 7/19/2012)
The Board held that a judgment of guilt by a Wichita, KS municipal court is a conviction for immigration purposes and that violations of a municipal ordinance can serve as grounds for removability.
Matter of Cuellar-Gomez,
25 I&N Dec. 850 (BIA 2012). AILA Doc. No. 12071931.
AILA Doc. No. 12071931.
DHS Proposes New “Social Distinction” Test in Asylum Case
(1565 KB - 7/3/2012)
DHS proposed a new "social distinction” test for asylum cases in its brief in
on remand from a Third Circuit decision which rejected the BIA’s "social visibility" and "particularity" tests for determining if a particular social group exists. AILA Doc. No. 12070340.
AILA Doc. No. 12070340.
BIA Holds Returning LPR Is Applicant for Admission
(470 KB - 6/29/2012)
The Board held that the LPR respondent could be treated as an applicant for admission if DHS shows by clear and convincing evidence that the respondent attempted to bring an undocumented child into the U.S.
Matter of Guzman Martinez,
25 I&N Dec. 845 (BIA 2012). AILA Doc. No. 12062949.
AILA Doc. No. 12062949.
BIA Holds that Accessory After the Fact Qualifies as an Aggravated Felony
(479 KB - 6/28/2012)
The Board held that the respondent’s conviction for accessory after the fact is an aggravated felony because it is “an offense relating to obstruction of justice.”
Matter of Valenzuela Gallardo
, 25 I&N Dec. 838 (BIA 2012). AILA Doc. No. 12062860.
AILA Doc. No. 12062860.
OCAHO Fines Employer $9,500 for 19 Substantive I-9 Violations
(489 KB - 6/26/2012)
Finding no genuine issue of material fact, OCAHO granted summary decision in favor of ICE, finding 19 substantive violations where the employer provided only a List B document on the I-9 forms. (
U.S. v. Four Seasons Earthworks,
6/7/12) AILA Doc. No. 12062652.
AILA Doc. No. 12062652.
BIA Remands I-130 Appeals in Same-sex Marriage Cases
(5367 KB - 6/25/2012)
In 4 unpublished decisions, the BIA remanded I-130 appeals brought by same-sex couples for USCIS to clarify whether the marriages were valid under state law and whether the beneficiary would be considered a "spouse" under the INA, absent DOMA. Courtesy of Masliah & Soloway. AILA Doc. No. 12062553.
AILA Doc. No. 12062553.
BIA on Applicability of INA § 101(a)(13)(C)(v) to Respondent Seeking to Adjust Status
(469 KB - 6/25/2012)
The Board held that an LPR who was granted cancellation in proceedings arising from a drug conviction must prove that conviction does not make him inadmissible when adjusting status in subsequent proceedings.
Matter of Fernandez Taveras,
25 I&N Dec. 834 (BIA 2012).
AILA Doc. No. 12062545.
BIA on Qualifying Relatives for Cancellation Applications
(576 KB - 6/15/2012)
The Board held that the petitioner did not have a qualifying relative under INA § 240A(b)(1)(D), because his son turned 21 after the application was filed, but before the IJ adjudicated the application.
Matter of Isidro-Zamorano,
25 I&N Dec. 829 (BIA 2012).
AILA Doc. No. 12061554.
BIA Holds Admission to Northern Mariana Islands Not Admission for 245(a) Purposes
(471 KB - 6/13/2012)
The Board found that respondent’s admission to the Commonwealth of the Northern Mariana Islands (CNMI) by a CNMI officer before CNMI was included in the definition of the U.S. did not amount to an admission into the U.S.
Matter of Valdez
, 25 I&N Dec. 824 (BIA 2012). AILA Doc. No. 12061355.
AILA Doc. No. 12061355.
IJ Grants Administrative Closure under
in DOMA Case
(636 KB - 6/13/2012)
In an unpublished decision, the IJ granted respondent’s request to administratively close the case over objection by the government. The case implicates DOMA, and the IJ agreed that admin closure was appropriate until the BIA decides
. Courtesy of Bryon Large.
AILA Doc. No. 12061345.
BIA on Satisfying the CSPA's “Sought to Acquire” Requirement
(478 KB - 6/8/2012)
The Board found that the CSPA requirement that an applicant seek to acquire LPR status within one year of visa availability can be satisfied by showing circumstances beyond the applicant’s control prevented a timely filing.
Matter of Vazquez
, 25 I&N Dec. 817 (BIA 2012). AILA Doc. No. 12060862
AILA Doc. No. 12060862.
BIA on Determining Good Cause for a Continuance to Adjudicate U Visa Petition
(488 KB - 6/8/2012)
The Board listed factors for an IJ to consider when deciding whether to grant a continuance, and held that a noncitizen who has filed a prima facie approvable U visa petition should generally be granted a continuance.
Matter of Sanchez Sosa
, 25 I&N Dec. 807 (BIA 2012) AILA Doc. No. 12060861.
AILA Doc. No. 12060861.
OCAHO Rejects Application of
(493 KB - 6/5/2012)
OCAHO denied the employer’s motion to dismiss, finding that the Iqbal/Twombly standards do not apply to OCAHO proceedings, an administrative forum where the case load differs sharply from that in a federal district court. (
U.S. v. Mar-Jac Poultry,
3/15/12) AILA Doc. No. 12060543.
AILA Doc. No. 12060543.
OCAHO Says “H-2B Visa” Is Not a Valid List A Document
(507 KB - 6/4/2012)
OCAHO found that Respondent was not the employer of certain H-2B workers where it merely provided payroll processing for the actual employer, but that an “H-2B visa” is not a valid List A document. (
U.S. v. Ronning Landscaping,
5/1/12) AILA Doc. No. 12060446.
AILA Doc. No. 12060446.
OCAHO Reduces Penalties, Finds Employer Did Not Act in Bad Faith
(484 KB - 6/4/2012)
OCAHO found that although Respondent engaged in 134 violations, there was insufficient evidence to conclude that it acted in bad faith prior to the inspection, and therefore reduced the penalties from $131,554.50 to $49,427. (
U.S. v. Pegasus Restaurant,
1/5/12) AILA Doc. No. 12060445.
AILA Doc. No. 12060445.
BIA Overturns Denial of Motion for Continuance
(533 KB - 5/18/2012)
In an unpublished decision, the Board overturned the IJ’s denial of a continuance to allow the respondent to pursue adjustment of status, finding that the denial rested on a clearly erroneous factual finding of previous marriage fraud. Courtesy of Nicolas Chavez. AILA Doc. No. 12051852.
AILA Doc. No. 12051852.
BIA Finds Jurisdiction Over Appeal By Unlawfully Removed Respondent
(472 KB - 5/14/2012)
The Board held that it has jurisdiction to review the appeal of an alien who was unlawfully removed in violation of 8 C.F.R. § 1003.6(a), but concluded the respondent’s accomplice conviction rendered him removable.
Matter of Diaz-Garcia,
25 I&N Dec. 794 (BIA 2012).AILA Doc. No. 12051449.
AILA Doc. No. 12051449.
AILA FOIA Request Yields Large Volume of OCAHO Documents
Documents in response to a FOIA request for ALJ decisions, OCAHO complaints, and dockets for cases arising under INA §274A, relating to the unlawful employment of aliens. Special thanks to the AILA Verification & Documentation Liaison Committee and the AILA FOIA Committee. AILA Doc. No. 12050941.
AILA Doc. No. 12050941.
BIA Finds Respondent Eligible for Derivative Asylum
(464 KB - 5/8/2012)
The Board found that the respondent, who is unmarried and turned 21 while her mother’s asylum application was pending, continues to be classified as a “child” for purposes of qualifying for derivative asylum.
Matter of A-Y-M-,
25 I&N Dec. 791 (BIA 2012). AILA Doc. No. 12050865.
AILA Doc. No. 12050865.
BIA Finds Respondent with Aggravated Felony Conviction Eligible for 212(h) Relief
(477 KB - 5/3/2012)
The Board found that the respondent - who entered without inspection and later adjusted to LPR status – was eligible for 212(h) relief despite an aggravated felony conviction due to controlling Fifth Circuit precedent.
Matter of Rodriguez,
25 I&N Dec. 784 (BIA 2012). AILA Doc. No. 12050343.
AILA Doc. No. 12050343.
BIA Sua Sponte Reopens Proceedings Based on Inaccurate Admission
(832 KB - 4/27/2012)
In an unpublished decision, the Board sua sponte reopened proceedings based on exceptional circumstances, because the respondent admitted to two controlled substance convictions which did not exist during a hearing with his prior attorney. Courtesy of Charles Medina. AILA Doc. No. 12042742.
AILA Doc. No. 12042742.
BIA Finds IJ Should Have Granted Continuance
(1697 KB - 4/27/2012)
In an unpublished decision, the Board found that the immigration judge should have granted the respondent’s request for a continuance in order to pursue a waiver petition under INA § 216(c)(4), and remanded the case for further proceedings. Courtesy of Fausto Falzone. AILA Doc. No. 12042741.
AILA Doc. No. 12042741.
IJ Grants Asylum to Salvadoran Youth Targeted for Gang Reprisal
(4669 KB - 4/18/2012)
The Immigration Judge found that the applicant had a well-founded fear of future persecution on account of his family ties, where the applicant’s father had been convicted of raping the sister of a gang member and the gang sought revenge. Courtesy of Nikki Mehrpoo Jacobson. AILA Doc. No. 12041844.
AILA Doc. No. 12041844.
BIA on Refugees in Removal Proceedings
(488 KB - 4/13/2012)
The Board found that a refugee who has not adjusted status can be placed in removal proceedings without a prior inadmissibility determination by DHS, but that the charges of removability must be under INA § 237, not § 212.
Matter of D-K-
, 25 I&N Dec. 761 (BIA 2012). AILA Doc. No. 12041348.
AILA Doc. No. 12041348.
BIA Finds Murder with No Intent to Kill Is Aggravated Felony
(502 KB - 4/9/2012)
The Board found that a conviction for murder requiring a showing that the perpetrator acted with extreme recklessness or a malignant heart is an aggravated felony, notwithstanding that no intent to kill was established.
Matter of M-W-
, 25 I&N Dec. 748 (BIA 2012) AILA Doc. No. 12040945.
AILA Doc. No. 12040945.
BIA Remands Egyptian Asylum Case
(851 KB - 4/6/2012)
In an unpublished decision, the Board reversed a decision denying asylum, noting that a persecutor “may have several reasons for harming a victim and proving the exact reason for the past or feared persecution may be impossible in some cases." Courtesy of David Cleveland. AILA Doc. No. 12040646.
AILA Doc. No. 12040646.
BIA on Inadmissibility and 245(i) Adjustment of Status
(500 KB - 3/19/2012)
In a case remanded from the Seventh Circuit, the Board found that an individual who is inadmissible under INA § 212(a)(9)(B)(i)(II) due to unlawful presence cannot qualify for 245(i) adjustment of status absent a waiver.
Matter of Lemus
, 25 I&N Dec. 734 (BIA 2012). AILA Doc. No. 12031931.
AILA Doc. No. 12031931.
BIA Remands Asylum Case Based on Pro-Democracy Activities in US
(753 KB - 3/12/2012)
In an unpublished decision, the Board remanded to the IJ to determine whether there is a reasonable possibility that the Burmese authorities are aware, or may become aware, of the respondents’ protests with pro-democracy groups in the US. Courtesy of David Cleveland. AILA Doc. No. 12031261.
AILA Doc. No. 12031261.
BIA on the Divisibility of Criminal Statutes
(249 KB - 3/9/2012)
The Board held that a statute is divisible, regardless of its structure, if, based on the elements of the offense, some but not all violations of the statute give rise to grounds for removal or ineligibility for relief.
Matter of Lanferman
, 25 I&N Dec. 721 (BIA 2012). AILA Doc. No. 12030965.
AILA Doc. No. 12030965.
BIA on Requirements for 245(i) Derivative Case
(468 KB - 3/8/2012)
The Board found that, for an individual to qualify for adjustment of status under §245(i) as a grandfathered derivative, the principal beneficiary must satisfy the requirements for grandfathering.
Matter of Ilic
, 25 I&N Dec. 717 (BIA 2012). AILA Doc. No. 12030849.
AILA Doc. No. 12030849.
BIA Remands Humanitarian Asylum Case to IJ
(603 KB - 2/17/2012)
In a case on remand from the Eighth Circuit, the Board found that further fact-finding may be necessary to determine whether the Albanian respondent should be granted humanitarian asylum based on past persecution.
Matter of L-S-
, 25 I&N Dec. 705 (BIA 2012). AILA Doc. No. 12021748
AILA Doc. No. 12021748.
BIA On Evidence Outside the Record in Aggravated Felony Case
(480 KB - 2/14/2012)
The Board held the petitioner could present evidence outside the record of conviction to show that a conviction was not an aggravated felony because it involved a small amount of drugs for no remuneration.
Matter of Castro Rodriguez
, 25 I&N Dec. 698 (BIA 2012). AILA Doc. No. 12021449.
AILA Doc. No. 12021449.
BIA on Marriage Between Postoperative Transsexual and Member of Opposite Sex
(613 KB - 2/9/2012)
In an unpublished decision, the Board held that the marriage between a postoperative transsexual, who was unable to change the gender on her Thai birth certificate, and a person of the opposite sex could be the basis for immigration benefits. Courtesy of Elaine Witty. AILA Doc. No. 12020960.
AILA Doc. No. 12020960.
BIA Holds IJs Can Grant Opposed Motion for Administrative Closure
(40 KB - 1/31/2012)
The Board held that immigration judges and the Board may administratively close removal proceedings, even if a party opposes, if it is otherwise appropriate under the circumstances, overruling Matter of Gutierrez.
Matter of Avetisyan
, 25 I&N Dec. 688 (BIA 2012). AILA Doc. No. 12013169.
AILA Doc. No. 12013169.
BIA on Authentication of Convictions in Immigration Proceedings
(482 KB - 1/24/2012)
The Board found that an electronic disposition notice, submitted to prove that the respondent had been convicted of a CIMT, was not admissible because it was not authenticated using a recognized method of authentication.
Matter of Velasquez
, 25 I&N Dec. 680 (BIA 2012). AILA Doc. No. 12012449.
AILA Doc. No. 12012449.
BIA Finds California Stalking is Aggravated Felony
(238 KB - 1/20/2012)
The Board found that a stalking offense for harassing conduct under California law is an aggravated felony, noting it was not bound by a conflicting Ninth Circuit decision because this case arose in the Fourth Circuit.
Matter of Singh
, 25 I&N Dec. 670 (BIA 2012). AILA Doc. No. 12012062.
AILA Doc. No. 12012062.
BIA Finds Respondent is Eligible for Cancellation Under 240A(b)
(2269 KB - 1/9/2012)
In an unpublished decision, the Board found that the respondent’s five U.S.-citizen daughters would suffer from exceptional and extremely unusual hardship if he was removed to a small village in Mexico and his family of seven accompanied him. Courtesy of Jonathan Benson.
AILA Doc. No. 12010947.
BIA Finds Couple Obtained Firm Resettlement in Belize
(27 KB - 1/9/2012)
The Board found that the respondents were firmly resettled prior to coming to the U.S. and thus ineligible for asylum, noting that a fraudulently-obtained permit was still evidence of an offer of firm resettlement.
Matter of D-X & Y-Z-
, 25 I&N Dec. 664 (BIA 2012) AILA Doc. No. 12010965.
AILA Doc. No. 12010965.
BIA Finds Possession of Child Pornography is Particularly Serious Crime
(224 KB - 1/4/2012)
The Board found that the respondent’s conviction for possession of child pornography was a particularly serious crime based on the nature and specific facts of the offense, making him ineligible for withholding of removal.
Matter of R-A-M-
, 25 I&N Dec. 657 (BIA 2012) AILA Doc. No. 12010461.
AILA Doc. No. 12010461.
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