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2009

  • BIA Finds IJ Erred in Refusing to Consider Underlying Facts of Conviction(220 KB - 12/10/2009)
    The BIA vacated IJ decision and remanded finding that where facts underlying respondent’s conviction showed she knowingly assisted aliens to enter the U.S. in violation of law, clear and convincing evidence established she removability. Matter of Martinez-Serrano, 25 I&N Dec. 151 (BIA 2009)
    AILA Doc. No. 09121030.
  • BIA Finds Stepchild is Qualifying Relative for Evaluating Hardship(17 KB - 12/1/2009)
    The BIA found that a stepchild who meets the definition of a “child” under the INA is a qualifying relative for purposes of establishing exceptional and extremely unusual hardship for cancellation of removal. Matter of Portillo-Gutierrez, 25 I&N Dec. 148 (BIA 2009)
    AILA Doc. No. 09120160.
  • BIA Finds Voluntary Departure Regulations Do Not Apply Retroactively(22 KB - 11/20/2009)
    BIA found that the voluntary departure regulations which took effect on 1/20/09, and superseded Matter of Diaz-Ruacho, do not apply retroactively. Matter of Velasco, 25 I&N Dec. 143 (BIA 2009)
    AILA Doc. No. 09112069.
  • BIA on Burden of Proof for Releasing Individual on Bond(205 KB - 11/18/2009)
    The BIA remanded the record for the IJ to clarify whether the alien met his burden of proving his release on bond would not pose a danger to property or persons. Matter of Urena, 25 I&N 140 (BIA 2009)
    AILA Doc. No. 09111863.
  • BIA on Determining Good Cause for a Continuance for Adjustment(71 KB - 11/12/2009)
    The BIA held that in determining if good cause for a continuance exists to await adjudication of an I-140 or labor certification, IJ should determine place in the process and consider Matter of Hashmi, and other relevant considerations. Matter of Rajah, 24 I&N Dec. 127 (BIA 2009)
    AILA Doc. No. 09111230.
  • BIA on Waiver Eligibility for Drug Paraphernalia Offense(33 KB - 11/9/2009)
    The BIA held that an alien who is inadmissible based on a drug paraphernalia offense may qualify for a waiver of inadmissibility if that offense “relates to a single offense of simple possession of 30 grams or less of marijuana.” Matter of Martinez Espinoza, 25 I&N Dec. 118 (BIA 2009)
    AILA Doc. No. 09110967.
  • IJ Finds it Proper to Adjudicate Motion to Terminate and Suppress on the Merits(1090 KB - 11/4/2009)
    The IJ citing de Rodriguez-Echeverria v. Mukasey found it proper to adjudicate respondent’s motion to terminate and suppress on the merits despite the Government’s contention that the federal courts are the appropriate forum for such arguments.
    AILA Doc. No. 09110460.
  • BIA Finds Plea Agreement Controls in Determining Eligibility for Former §212(c) Relief(21 KB - 11/2/2009)
    The BIA held that in determining whether the alien is eligible for a waiver under former INA § 212(c), the date of the alien’s plea agreement, rather than the date of sentencing, is controlling. Matter of Moreno-Escobosa, 25 I&N Dec. 114 (BIA 2009)
    AILA Doc. No. 09110263.
  • BIA on Authority to Reopen Removal Proceedings(231 KB - 10/29/2009)
    The BIA held that it generally lacks authority to reopen final exclusion, deportation, or removal proceedings where an alien seeks to pursue relief over which neither the Board nor the IJ has jurisdiction. Matter of Yauri, 25 I&N Dec. 103 (BIA 2009)
    AILA Doc. No. 09102960.
  • BIA Applies "Rollback Provision" under Cuban Adjustment Act(210 KB - 10/21/2009)
    The BIA held that in determining removability for an alien whose adjusted under the Cuban Adjustment Act and is convicted of a CIMT within five years after the “date of admission,” the date is calculated according to the rollback provision. Matter of Carrillo, 25 I&N Dec. 99 (BIA 2009)
    AILA Doc. No. 09102177.
  • BIA on Jurisdiction over Arriving Aliens Seeking Adjustment of Status(48 KB - 10/19/2009)
    The BIA held that IJs have no jurisdiction to adjudicate an adjustment filed by an arriving alien, with the exception of an alien in removal proceedings after returning with an advance parole to pursue a previously filed application. Matter of Silitonga, 25 I&N Dec. 89 (BIA 2009)
    AILA Doc. No. 09101927.
  • BIA Finds Crewman Ineligible for Cancellation of Removal(56 KB - 10/19/2009)
    The BIA held that an alien who entered the U.S. pursuant to a crewman’s visa for the purpose of obtaining employment as a crewman is statutorily ineligible for cancellation of removal. Matter of G-D-M-, 25 I&N Dec. 82 (BIA 2009)
    AILA Doc. No. 09101926.
  • BIA Finds IJ Has Authority to Review and Modify DHS Conditions of Release(25 KB - 10/15/2009)
    The BIA held that an IJ has authority to review and consider whether to modify the conditions of release imposed on an alien by DHS. BIA dismisses DHS appeal. Matter of Garcia-Garcia, 25 I&N Dec. 93 (BIA 2009)
    AILA Doc. No. 09101561.
  • DHS Agrees with AILF; Urges BIA to Vacate Perez-Vargas (9/29/2009)
    In a brief to the BIA, DHS argues that an immigration judge does have jurisdiction to determine whether a visa petition remains valid for adjustment of status under INA § 204(j) when the applicant changes jobs. Following receipt of the brief, the BIA canceled oral argument on the issue.
    AILA Doc. No. 09092879.
  • BIA Finds LPR Eligible for Cancellation of Removal as a Battered Spouse(258 KB - 9/23/2009)
    The BIA held that lawful permanent residents may be eligible to apply for special rule cancellation of removal for battered spouses under section 240A(b)(2) of the Act per Congressional intent. Matter of Martinez, 25 I&N Dec. 66 (BIA 2009)
    AILA Doc. No. 09092367.
  • BIA Remands Case Where Defendant Appeals In Absentia Order(225 KB - 9/23/2009)
    The BIA sustained the appeal and remanded the case back to the Immigration Judge (IJ) where the IJ ordered the defendant removed in absentia, when the failure to appear only occurred because the defendant was in state custody. Matter of EVRA, 25 I&N Dec. 79 (BIA 2009)
    AILA Doc. No. 09092364.
  • BIA Remands after IJ Granted Pre-Hearing Voluntary Departure Without Waiver(65 KB - 8/11/2009)
    In an unpublished decision, the BIA sustains appeal and remands, after finding that the IJ granted pre-hearing voluntary departure under INA § 240B(a) and 8 CFR §1240.26(b) without securing the appellant’s explicit waiver of appellate rights as required. Courtesy of Gurpatwant S. Pannun.
    AILA Doc. No. 09081161.
  • BIA Finds a Reasonable Inference of Marriage Fraud Is Not Substantial and Probative(1876 KB - 7/28/2009)
    In an unpublished decision, the BIA held that misrepresentation of the viability of a marriage does not mean the marriage was fraudulent, and a reasonable inference of marriage fraud is not substantial and probative. Courtesy of Scott Devore.
    AILA Doc. No. 09072864.
  • BIA on Adjustment Based on a Marriage Entered into While in Removal Proceedings(45 KB - 7/27/2009)
    The BIA held that a MTR to apply for adjustment based on marriage after the commencement of removal proceedings may not be denied under the Matter of Velarde’s fifth factor based on the mere fact that the government opposes the motion. Matter of Lamus, 25 I&N Dec. 61 (BIA 2009)
    AILA Doc. No. 09072760.
  • BIA Finds Notice of Hearing Was Not Properly Served(305 KB - 7/24/2009)
    In an unpublished decision, the BIA grants motion and rescinds in absentia removal order, finding that notice of hearing was not properly served, as it was given to the attorney who appeared for the respondent at the hearing, but the respondent had not retained him. Courtesy of Gurpatwant S. Pannun.
    AILA Doc. No. 09072465.
  • BIA on Deportation Orders Issued in Absentia(241 KB - 7/23/2009)
    The BIA held that an individual's departure while under an outstanding order of deportation or removal issued in absentia does not deprive the IJ of jurisdiction to entertain a MTR to rescind the order if the motion is premised upon lack of notice. Matter of Bulnes, 25 I&N Dec. 57 (BIA 2009)
    AILA Doc. No. 09072332.
  • IJ Finds Applicant Was Improperly Placed in Proceedings(106 KB - 7/23/2009)
    The IJ granted motion to terminate proceedings, persuaded that the asylum applicant was improperly placed in removal proceedings prior to the adjudication of a previously filed asylum application. Courtesy of Geoffrey Hoffman.
    AILA Doc. No. 09072363.
  • BIA Lacks Jurisdiction to Review DHS Appeal of IJ Decision(41 KB - 7/20/2009)
    The BIA held that it lacks jurisdiction to review a DHS appeal of an IJ’s decision to vacate an expedited removal order after a claimed status review hearing, at which the IJ determined the respondent to be a U.S. citizen. Matter of Lujan-Quintana, 25 I&N Dec. 53 (BIA 2009)
    AILA Doc. No. 09072072.
  • DHS Brief on Asylum Claims Filed by Domestic Violence Victims(9887 KB - 7/16/2009)
    In an asylum case brief based on domestic violence, DHS states that applicants who have experienced domestic violence could qualify for asylum based on alternative social group formations, and proposes two formulations under which victims of domestic violence might be able to advance asylum claims.
    AILA Doc. No. 09071664.
  • BIA Holds IJ Can Conduct De Novo Review of TPS Eligibility(40 KB - 7/16/2009)
    The BIA clarified that Barrientos was not meant to restrict an IJ’s jurisdiction to review a TPS application and that exhaustion of DHS appeal procedures is not required before an IJ may conduct a de novo review of TPS eligibility. Matter of Lopez-Aldana, 25 I&N Dec. 49 (BIA 2009)
    AILA Doc. No. 09071662.
  • BIA on LPR Abandonment of Status(626 KB - 7/15/2009)
    In an unpublished decision, the BIA held that DHS failed to show a returning resident who re-entered the U.S. after two years and nine months abroad was not admissible, finding the key is whether activities are consistent with intent to return as soon as practicable. Courtesy of William A. Hahn.
    AILA Doc. No. 09071563.
  • BIA Finds IJ Lacked of Jurisdiction to Change Custody Status of Asylum Applicant(229 KB - 7/1/2009)
    The BIA held that the IJ properly determined that he lacked jurisdiction to redetermine the conditions of the applicant’s custody and set bond, as the individual was admitted through the VWP and not entitled to a custody hearing. Matter of Werner, 25 I&N Dec. 45 (BIA 2009)
    AILA Doc. No. 09070163.
  • BIA Finds False Statement on Passport Application Amounts to Claim of Citizenship(47 KB - 6/22/2009)
    The BIA held that the foreign national was inadmissible at the time of her adjustment application for having falsely represented herself to be a U.S. citizen on a passport application, having claimed birth in Texas. Matter of Barcenas, 25 I&N Dec. 40 (BIA 2009)
    AILA Doc. No. 09062262.
  • BIA Finds Aged Out Beneficiary Cannot Automatically Convert from Fourth to Second Preference(63 KB - 6/18/2009)
    The BIA held that the automatic conversion and priority date retention provisions of CSPA do not apply as the individual aged out of a fourth-preference petition and cannot retain the earlier priority date because of the difference in petitioner. Matter of Wang, 25 I&N Dec. 28 (BIA 2009)
    AILA Doc. No. 09061870.
  • BIA Finds Receipt of Stolen Property Conviction An Aggravated Felony(80 KB - 6/18/2009)
    The BIA held that the appellant’s conviction for receipt of stolen property under California statute, with a sentence of more than one year of imprisonment, qualifies categorically as an aggravated felony under INA §101(a)(43)(G). Matter of Cardiel, 25 I&N Dec. 12 (BIA 2009)
    AILA Doc. No. 09061867.
  • BIA Remands for Enumeration of Ground Relied Upon for Withholding Claim(55 KB - 6/17/2009)
    The BIA remands for further fact-finding and for the IJ to readdress the withholding claim related to FGM in light of the framework set out by the Attorney General in Matter of A-T-. Matter of A-T-, 25 I&N Dec. 4 (BIA 2009)
    AILA Doc. No. 09061765.
  • BIA Remands Domestic Violence Asylum Case Held in Abeyance for More than Six Years(150 KB - 6/17/2009)
    In an unpublished decision, the BIA remands asylum case back to IJ based on Matter of R-A- after holding case in abeyance for over six years, for submission of new evidence and arguments. Courtesy of Christopher Helt.
    AILA Doc. No. 09061763.
  • Attorney General Vacates Decision in Matter of Compean(207 KB - 6/3/2009)
    Attorney General Eric Holder, vacated the decision in Matter of Compean and directed the BIA and Immigration Judges to apply the decision in Matter of Lozada for claims of ineffective assistance of counsel, pending promulgation of relevant regulations.
    AILA Doc. No. 09060321.
  • BIA Finds IJ Failed to Adhere to Role of Impartiality(144 KB - 5/26/2009)
    In an unpublished decision, the BIA vacates and remands for a new asylum hearing before a different immigration judge after applicant challenged the fairness of the underlying hearing and BIA found IJ did not behave in a professional and impartial manner. Courtesy of Aleksander Milch.
    AILA Doc. No. 09052660.
  • BIA Finds Appellant Did Not Automatically Derive Citizenship from U.S. Citizen Stepfather(52 KB - 5/11/2009)
    The BIA held that an alien cannot demonstrate derivative citizenship under INA § 320(a) through a nonadoptive stepparent and the terms "child" and "parent" in the INA do not encompass stepchildren and stepparents. Matter of Guzman-Gomez, 24 I&N Dec. 824 (BIA 2009)
    AILA Doc. No. 09051165.
  • BIA Holds Conviction is Final Despite Pending Appeal in State Court(123 KB - 5/5/2009)
    The BIA held that a pending late-reinstated appeal does not undermine the finality of respondent's conviction as a valid predicate for removability. Matter of Cardenas Abreu, 24 I&N Dec. 795 (BIA 2009)
    AILA Doc. No. 09050573.
  • BIA Remands for Consideration of Enumerated Factors in Continuance Request(267 KB - 4/22/2009)
    The BIA addresses factors to be considered in deciding whether a continuance request is warranted. Notes that compliance with an IJ’s case completion goals is not a proper factor in deciding a continuance request. Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009)
    AILA Doc. No. 09042233.
  • BIA on Jurisdiction over Adjustments under Cuban Adjustment Act(239 KB - 4/21/2009)
    The BIA vacates and remands, holding that IJs no longer have jurisdiction in removal proceedings to consider adjustment of status applications filed by arriving aliens who are seeking benefits under the Cuban Adjustment Act. Matter of Martinez-Montalvo, 24 I&N Dec. 778 (BIA 2009)
    AILA Doc. No. 09042162.
  • BIA Finds Failure to Prove that Conviction Was Not CIMT(54 KB - 4/15/2009)
    The BIA held that respondent failed to meet burden of proving conviction was not for a crime involving moral turpitude in order to establish eligibility for cancellation of removal. Matter of Almanza-Arenas, 24 I&N Dec. 771 (BIA 2009)
    AILA Doc. No. 09041564.
  • BIA Finds Cocaine Solicitation is Offense "Relating to a Controlled Substance"(40 KB - 3/20/2009)
    BIA reaffirms precedent in Matter of Beltran, finding that a Florida conviction for criminal solicitation of cocaine is a conviction "relating to a controlled substance" that makes respondent removable outside the Ninth Circuit. Matter of Zorilla-Vidal, 24 I&N Dec. 768 (BIA 2009)
    AILA Doc. No. 09032072.
  • BIA Finds that IJ Can Order Continued Detention as Condition of Voluntary Departure(49 KB - 3/20/2009)
    The BIA held that an IJ has the authority to order the continued detention of a foreign national as a condition of voluntary departure after foreign national failed to establish eligibility for asylum, withholding or CAT relief. Matter of M-A-S-, 24 I&N Dec. 762 (BIA 2009)
    AILA Doc. No. 09032064.
  • BIA Finds IJ Erred in Concluding Burglary is not CIMT(56 KB - 3/19/2009)
    The BIA held that conviction for burglary is a CIMT after engaging in a traditional categorical analysis and examining whether there is a “‘realistic probability” that the statute would include conduct that does not involve moral turpitude. Matter of Louissaint, 24 I&N Dec. 754 (BIA 2009)
    AILA Doc. No. 09031961.
  • BIA on Whether Electronic Monitoring and Home Confinement Constitute Custody(53 KB - 3/13/2009)
    The BIA held that because DHS released the foreign national from actual physical detention, he was released from custody within the meaning of 8 C.F.R.§ 1236.1(d)(1). Matter of Jose Aguilar-Aquino, 24 I&N Dec. 747 (BIA 2009)
    AILA Doc. No. 09031364.
  • IJ Addresses ISAP as “Custody”(1238 KB - 3/12/2009)
    Orlando Immigration Court IJ finds that the Intensive Supervision Appearance Program (ISAP) is a form of custody and orders release from ISAP upon payment of bond. Courtesy of Andy Strickland.
    AILA Doc. No. 09031268.
  • IJ Grants CAT Relief to Rape Victim from Vietnam(36 KB - 3/5/2009)
    IJ grants CAT relief to an LPR convicted of an aggravated felony, based on grounds that the foreign national would be in danger of being subjected to torture if she were returned to Vietnam as she was a victim of repeated rape. Courtesy of John Ovink.
    AILA Doc. No. 09030570.
  • BIA Remands to Allow for Additional Relevant Evidence in Cancellation of Removal Case(1396 KB - 3/4/2009)
    In an unpublished decision, the BIA remands after applicant for cancellation of removal claims removal to Honduras would pose exceptional and extremely unusual hardship to U.S. citizen daughter due to her kidney disease and other health problems. Courtesy of Luis Sanabria.
    AILA Doc. No. 09030465.
  • Orozco Litigation: BIA Remands to Allow DHS to Amend the NTA (6/24/2009)
    Without addressing the continuing validity of Matter of Areguillin, the BIA has remanded Matter of Orozco to allow DHS to amend the NTA. A second case raising the issue of whether an entry based on fraud or misrepresentation can constitute an admission remains pending with the BIA.
    AILA Doc. No. 09013069.
  • BIA Denies Motion to Set Aside Attorney Suspension Order(59 KB - 1/14/2009)
    The BIA denied an attorney’s motion to set aside a suspension order for failure to show good cause. Motion was based on claimed good standing before the California State Bar. Matter of Rosenberg, 24 I&N Dec. 744 (BIA 2009)
    AILA Doc. No. 09011465.
  • BIA Finds Request for Corroboration Improper, Adverse Credibility Analysis Inadequate(205 KB - 1/14/2009)
    In an unpublished decision, the BIA held that the asylum applicant from Turkmenistan, persecuted on account of religion and ethnicity, adequately explained the failure to provide corroborating evidence. Also finds IJs adverse credibility determination was inadequate. Courtesy of Harry Asatrian.
    AILA Doc. No. 09011460.
  • AILF Summary of AG Decision on Claims Regarding Counsel in Removal Proceedings (Updated on 2/6/09) (2/6/2009)
    The Attorney General overrules the Board’s decisions in Matter of Lozada, and Matter of Assaad, finding there is no fifth amendment right to counsel. Matter of Compean-Bangaly & J-E-C, 24 I&N, Dec. 710 (AG 2009)
    AILA Doc. No. 09010730.
  • BIA Reopens Proceedings for Ethiopian Asylum Seeker(73 KB - 1/5/2009)
    In an unpublished decision, the BIA held that material evidence of changed country conditions demonstrated prima facie eligibility for relief for Ethiopian asylum applicant. Courtesy of Geoffrey A. Hoffman.
    AILA Doc. No. 09010563.
 
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