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2008

  • BIA Holds IJ Has Duty to Alert Pro Se Applicant to Avenues for Relief(96 KB - 12/2/2008)
    In an unpublished decision, the BIA held that the IJ had a duty to develop the record on the potential hardship of the applicant’s removal on his son and to alert the applicant to all avenues of relief, which he failed to do with regard to voluntary departure. Courtesy of Robert Carpenter.
    AILA Doc. No. 08120260.
  • AG Establishes Framework to Determine whether Conviction is CIMT(78 KB - 11/19/2008)
    The Attorney General established analytical framework for deciding if a conviction is a CIMT, using the categorical approach, and if the inquiry remains unresolved, examines the record of conviction and then if necessary, additional evidence. Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008)
    AILA Doc. No. 08111931.
  • BIA Finds Asylum Filing Window Begins Upon Arrival from Most Recent Trip Abroad(26 KB - 11/6/2008)
    The BIA held that for calculating the time between the arrival in the U.S. and the date when an asylum application was filed, the term “last arrival” should be interpreted literally to mean the alien’s most recent arrival from a trip abroad. Matter of F-P-R-, 24 I&N Dec. 681 (BIA 2008)
    AILA Doc. No. 08110661.
  • BIA Considers Due Diligence to Conclude Respondent Overcame Presumption of Delivery of NTA(41 KB - 11/3/2008)
    The BIA held that respondent overcame the weaker presumption of delivery of NTA sent by regular mail under standards set forth in Matter of M-R-A-, noting that his due diligence in promptly seeking to redress the situation is significant. Matter of C-R-C-, 24 I&N Dec. 677 (BIA 2008)
    AILA Doc. No. 08110363.
  • BIA Addresses Overcoming Presumption of Delivery of Notices Sent by Regular Mail(41 KB - 11/3/2008)
    The BIA held that the respondent provided sufficient evidence to overcome the presumption of delivery of a Notice of Hearing under the weaker standard applied when notices are delivered by regular mail. Matter of M-R-A-, 24 I&N Dec. 665 (BIA 2008)
    AILA Doc. No. 08110361.
  • BIA Finds Applicant’s Qualifying Relative Must be Living(43 KB - 10/24/2008)
    The BIA held that the purpose of a fraud waiver is to unite aliens with their living USC or LPR family members and concludes that because the waiver applicant’s mother is deceased, he lacks the qualifying relative. Matter of Federiso, 24 I&N Dec. 661, (BIA 2008)
    AILA Doc. No. 08102465.
  • BIA Addresses Asylum and Resistance to Forced IUDs in China(46 KB - 10/7/2008)
    The BIA held that the insertion of an IUD as part of China's family planning policy does not rise to the level of harm necessary to constitute “persecution” absent aggravating circumstances. Matter of M-F-W- & L-G, 24 I&N Dec. 633 (BIA 2008)
    AILA Doc. No. 08100769.
  • BIA Denies MTR Sua Sponte Holding Departure Bar Remains in Effect(78 KB - 10/7/2008)
    The BIA held that the departure bar rule remains in effect, thus it lacks jurisdiction to consider the removed alien’s motion to reopen sua sponte. Matter of Armendarez-Mendez, 24 I&N Dec. 646 (BIA 2008)
    AILA Doc. No. 08100766.
  • BIA Finds Parent’s Period of Residence Cannot be Imputed to Child(18 KB - 9/30/2008)
    The BIA held that the period when the foreign national resided as an unemancipated minor child with his LPR father cannot be imputed in order to satisfy the seven-year residence requirement for cancellation of removal under INA §240A(a)(2). Matter of Ramirez-Vargas, 24 I&N Dec. 599 (BIA 2008)
    AILA Doc. No. 08093075.
  • Attorney General Certifies Matter of R-A- and Lifts Stay(19 KB - 9/30/2008)
    The Attorney General lifted the stay in Matter of R-A- and remanded the case to the Board to revisit the issues presented with respect to asylum claims based on domestic violence in light of current law. Matter of R-A-, 24 I&N Dec. 629 (AG 2008)
    AILA Doc. No. 08093062.
  • BIA Concludes False Claim of Citizenship on I-9 Does Not Bar Good Moral Character Finding(20 KB - 9/23/2008)
    The BIA reversed IJ’s decision, holding that the “catch-all” provision of INA § 101(f) bars a finding of good moral character under INA §240A(b)(1)(B) for an alien that made a false claim of U.S. citizenship on Form I-9. Matter of Guadarrama, 24 I&N Dec. 625 (BIA 2008)
    AILA Doc. No. 08092367.
  • Attorney General Vacates Denial of Withholding Claim Based on FGM (9/22/2008)
    The Attorney General vacated BIA decision denying a Malian woman’s claim for withholding and remands for reconsideration of questions relating to her eligibility for withholding based on the claim that she was subjected to female genital mutilation. Matter of A-T-, 24 I & N Dec. 617 (AG 2008)
    AILA Doc. No. 08092230.
  • IJ Grants Asylum to Children of a Particular Family Who Where Physically Abandoned(775 KB - 9/18/2008)
    IJ finds that Honduran children merit a grant of asylum on humanitarian grounds with the social group defined as members of a particular family who were physically abandoned by their parents. Courtesy of David Sperling.
    AILA Doc. No. 08091869.
  • BIA Finds Spouse of Cuban LPR Eligible for Relief(156 KB - 9/18/2008)
    In an unpublished decision, the BIA held that as the spouse of an LPR who adjusted under the Cuban Adjustment Act, the respondent was eligible to adjust. Courtesy of Sofia Zneimer.
    AILA Doc. No. 08091864.
  • BIA Addresses Meaning of “to Reside Permanently” Under Former Section 321(a) of the INA(50 KB - 9/15/2008)
    The BIA held that respondent did not satisfy former section 321(a) of the Act to obtain derivative citizenship because he did not acquire LPR status before he reached 18 years of age. Matter of Nwozuzu, 24 I&N Dec. 609 (BIA 2008)
    AILA Doc. No. 08091566.
  • BIA Finds Lack of Due Process in Address Error Made in Mailing of NTA(44 KB - 9/9/2008)
    In an unpublished decision, the BIA held that because the NTA was mailed to the wrong address, the appeal was reopened sua sponte. Due process was only satisfied if the method of notice was conducted in a way reasonably calculated to ensure that NTA reached the alien. Courtesy of Christopher Helt.
    AILA Doc. No. 08090960.
  • BIA Finds IJ Erred in Denying Continuance Based on Priority Date Retrogression(137 KB - 9/8/2008)
    The BIA sustains appeal and grants motion to remand after IJ denied request for continuance due to visa retrogression, remanding for additional fact finding as to whether the respondent was grandfathered under section 245(i) Courtesy of Christopher Helt.
    AILA Doc. No. 08090867.
  • BIA Reverses Adverse Credibility Finding for Battered Cancellation of Removal Applicant(1789 KB - 9/8/2008)
    The BIA held that the IJ erred in the adverse credibility determination, which was based solely on the fact that the applicant attempted to enter the U.S. by fraud, finding the respondent met the burden of establishing she was a battered spouse for purposes of special rule cancellation of removal.
    AILA Doc. No. 08090860.
  • BIA Addresses Release Under INA 236(c)(1)(29 KB - 9/2/2008)
    The BIA held that “release” under INA 236(c)(1) includes release from a non-DHS custodial setting after the expiration of the TPCR, and does not support limiting the custodial setting to criminal custody related to the basis for detention. Matter of Saysana, 24 I&N Dec. 602 (BIA 2008)
    AILA Doc. No. 08090266.
  • Attorney General to Review Right to Effective Counsel(189 KB - 8/13/2008)
    The Attorney General directed the BIA to refer to him for review three cases involving Lozada standards with respect to ineffective assistance to counsel and requested amici briefs on several related issues.
    AILA Doc. No. 08081361.
  • IJ Grants Exception for One-Year Filing Deadline for Asylee(535 KB - 8/8/2008)
    The IJ found exceptional circumstances existed and granted asylum to an Indonesian Christian ministor, despite the applicant’s failure to file within one year. Courtesy of Sun Jin Jung.
    AILA Doc. No. 08080841.
  • BIA Finds Applicant Not “Lawfully Resided” for Purposes of 212(h) Waiver(63 KB - 8/1/2008)
    The BIA held that respondent had not “lawfully resided” in the U.S. for purposes of qualifying for a 212(h) waiver during any periods where he was an applicant for asylum or adjustment and lacked any other basis on which to claim lawful residence. Matter of Rotimi, 24 I&N Dec. 567 (BIA 2008)
    AILA Doc. No. 08080165.
  • BIA Dismisses Appeal Further Limiting Definition of Particular Social Group(43 KB - 8/1/2008)
    The BIA agreed with the Immigration Judge who found that Salvadoran youth who refused recruitment into the MS-13 criminal gang or their family members does not constitute a particular social group. Matter of S-E-G-, et al., 24 I&N Dec. 579 (BIA 2008)
    AILA Doc. No. 08080164.
  • BIA Approves Partial Accreditation of Representative(26 KB - 7/9/2008)
    BIA approves an organization’s application for accreditation of its representative under 8 CFR § 1292.2(d). The representative was approved for partial accreditation to practice solely before DHS. Matter of EAC, Inc., 24 I&N Dec. 563 (BIA 2008)
    AILA Doc. No. 08070965.
  • BIA Finds Error in Credibility Standard, Remands Allowing for New Evidence in Asylum Claim(106 KB - 7/9/2008)
    The BIA held that the IJ erred in applying the Real ID Act to a case where respondent filed asylum application based on membership in a social group defined by a disability, in this case, deaf and mute children, prior to the effective date of the Act. Courtesy of Geoffrey Hoffman.
    AILA Doc. No. 08070960.
  • Orlando IJ Grants Asylum to Victim of Domestic Violence(802 KB - 6/20/2008)
    An immigration judge for the Orlando, Florida Immigration Court finds that a victim of domestic violence merits a grant of asylum on humanitarian grounds. The social group is defined as “Honduran women in intimate relationships who are unable to leave the relationship.” Courtesy of John Ovink.
    AILA Doc. No. 08062061.
  • BIA Finds Fourth Degree Assault Conviction Is Not a “Crime of Child Abuse”(59 KB - 5/22/2008)
    The BIA held that a WA fourth degree assault conviction is not a “crime of child abuse” under INA §237(a)(2)(E)(i), and concludes that removability on the basis of "a crime of child abuse" is determined by the elements of the offense. Matter of Velasquez-Herrera, 24 I&N Dec. 503 (BIA 2008)
    AILA Doc. No. 08052269.
  • AG Overrules BIA Holdings on Refugee Status for Spouse in Forced Abortion/Sterilization Cases (5/21/2008)
    The Attorney General, in In re Matter of Jianzhong Shi, overruled two precedent, en banc BIA decisions on entitlement to per se refugee status for the spouses of individuals physically subjected to a forced abortion or sterilization procedure.
    AILA Doc. No. 08052175.
  • BIA Finds Alternative Proof of Ghanaian Divorce To Be Valid(22 KB - 4/14/2008)
    The BIA held that while a court order remains the preferred method of establishing a divorce for a customary tribal marriage under Ghanaian law, affidavits executed by heads of household that meet evidentiary requirements may be sufficient. Matter of Francis Kodwo, 24 I&N Dec. 479 (BIA 2008)
    AILA Doc. No. 08041468.
  • BIA Discusses Circumstances When Denaturalization Is Appropriate(17 KB - 4/14/2008)
    The BIA held that a denaturalized alien who committed crimes when an LPR and concealed them during the naturalization process is removable on the basis of the crimes, even though the alien was a naturalized citizen at the time of conviction. Matter of Gonzalez-Muro, 24 I&N Dec. 472 (BIA 2008)
    AILA Doc. No. 08041467.
  • BIA Finds Citizenship Available to Child of USC Parent Who Acquired Legal Custody After Naturalization(21 KB - 4/14/2008)
    The BIA held that a child who satisfied the statutory conditions of former section 321(a) of the INA, before the age of 18 has acquired citizenship, regardless of whether the parent acquired legal custody before or after the naturalization. Matter of BAIRES-Larios, 24 I&N Dec. 467 (BIA 2008)
    AILA Doc. No. 08041465.
  • BIA Finds Conspiracy to Distribute Marijuana Qualifies as an Aggravated Felony(29 KB - 4/14/2008)
    The BIA held that a State misdemeanor offense of conspiracy to distribute marijuana qualifies as an aggravated felony where elements correspond to the Federal felony offense of conspiracy to distribute an indeterminate quantity of marijuana. Matter of Lamin Aruna, 24 I&N Dec. 452 (BIA 2008)
    AILA Doc. No. 08041463.
  • BIA Finds Imposition of Costs and Surcharges Constitutes a “Conviction”(23 KB - 3/10/2008)
    The BIA held that the imposition of costs and surcharges in the criminal sentencing context constitutes a form of “punishment” or “penalty” for purposes of establishing that an alien has suffered a “conviction”. Matter of Cabrera, 24 I&N Dec. 459 (BIA 2008)
    AILA Doc. No. 08031074.
  • BIA Finds Respondents Subjected to FGM Eligible for Asylum(16 KB - 3/10/2008)
    The BIA held that a Somali mother and daughter who were subjected to female genital mutilation were eligible for asylum based on humanitarian grounds regardless of whether they can establish a well-founded fear of future persecution. Matter of S-A-K- and H-A-H-, 24 I&N Dec. 464 (BIA 2008)
    AILA Doc. No. 08031073.
  • BIA Finds “Theft Offense” Not Within the Definition of Aggravated Felony(26 KB - 3/10/2008)
    The BIA held that the respondent’s welfare fraud offense is not a “theft offense” within the INA’s definition of an aggravated felony. Matter of Garcia-Madruga, 24 I&N Dec. 436 (BIA 2008)
    AILA Doc. No. 08031072.
  • BIA Discusses Meaning of “Child” in Context of Adoption of Siblings(20 KB - 3/10/2008)
    The BIA held that a child who was adopted under 18, and whose natural sibling was subsequently adopted by the same parent/s while under the age of 16, may qualify as a “child”, even if the child’s adoption preceded that of younger siblings. Matter of Anifowoshe, 24 I&N Dec. 442 (BIA 2008)
    AILA Doc. No. 08031068.
  • BIA Gives Guidance to IJs on Creation and Preservation of Complete Record(14 KB - 3/10/2008)
    The BIA held that IJs must insure a complete record is preserved, with attachments to oral decisions individualized and appended to the written memorandum summarizing the oral decision, which should reflect that there is an attachment. Matter of Kelly, 24 I&N Dec. 446 (BIA 2008)
    AILA Doc. No. 08031067.
  • IJ’s Decision Must Contain Explicit Order of Removal When Withholding Granted Without Asylum(19 KB - 1/11/2008)
    The BIA held that when an IJ issues a decision granting an alien’s application for withholding of removal, without a grant of asylum, the decision must include an explicit order of removal. Matter of I-S- & C-S-, 24 I&N Dec. 432 (BIA 2008)
    AILA Doc. No. 08011132.
  • BIA finds Certain Exceptions do not Apply Where Enhancement Factors Increased the Maximum Penalty of Offense(31 KB - 1/3/2008)
    The BIA held that the exception under section 212(h) for an alien convicted of a single offense of drug possession does not apply where enhancement factors increased maximum penalty and had been proven beyond a reasonable doubt to a jury. Matter of Martinez-Zapata, 24 I&N Dec. 424 (BIA 2007)
    AILA Doc. No. 08010370.
  • BIA Finds Simple Possession of Marijuana Not “Aggravated Felony” in Specific Situation(32 KB - 1/3/2008)
    The BIA held that the drug offense was not an aggravated felony based on recidivist possession despite offense committed after prior conviction for drug offense finalized. Matter of Thomas, 24 I&N 416 (BIA 2007)
    AILA Doc. No. 08010367.
 
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