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Cases & Decisions
Executive Office for Immigration Review (EOIR)
2000 - 1999
2000 - 1999
In re Oparah, Int. Dec. 3441 (BIA, Dec. 15, 2000)
A motion to remand submitted during the pendency of an appeal from an IJ’s denial of an untimely motion to reopen and filed after the entry of a final administrative decision does not cure the untimeliness of the initial motion to reopen.
In re Vasquez-Muniz, Int. Dec. 3440 (BIA, 12/1/00)
Possession of a firearm by a felon in violation of §12021(a)(1) of the California Penal Code is not an aggravated felony under §101(a)(43)(E) of the INA, 8 USC § 1101(a)(43)(E) (1994), because it is not an offense “described in” 18 USC §922(g)(1) (1994).
In re Davis, Int. Dec. 3439 (BIA, November 2, 2000)
A respondent in the 2nd Circuit whose deportation proceedings were pending on 4/24/96 is not subject to the changes made to §212(c) by §440(d); a respondent convicted of an aggravated felony serving more than 5 years is barred from §212(c) waiver eligibility if §440(d) is inapplicable to him.
In re West, Int. Dec. 3438 (BIA, October 26, 2000)
The mandatory detention provisions of INA §236(c) do not apply to an alien who was convicted after expiration of the Transition Period Custody Rules, but who was released from custody prior to the expiration of the Rules, and who was not physically confined or restrained as a result of that conviction.
In re BAHTA, Int. Dec. 3437 (October 4, 2000)
Respondent’s conviction for attempted possession of stolen property is a conviction for an attempted theft offense, and therefore an aggravated felony, pursuant to INA §§101(a)(43)(G) and (U). The INS retains prosecutorial discretion to decide whether to remove a respondent subsequent to IIRAIRA.
In re RODRIGUEZ-RUIZ, Int. Dec. 3436 (BIA, Sept. 22, 2000)
A conviction that has been vacated pursuant to Article 440 of the New York Criminal Procedure Law does not constitute a conviction for immigration purposes within the meaning of §101(a)(48)(A) of the INA, 8 USC §1101(a)(48)(A) (Supp. IV 1998). Matter of Roldan, Int. Dec. 3377 (BIA 1999), distinguished.
In re Devison-Charles, Int. Dec. 3435 (September 12, 2000)
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.
In re V-Z-S-, Int. Dec. 3434 (BIA, August 1, 2000)
The respondent’s conviction for unlawful driving and taking of a vehicle in violation of §10851 of the California Vehicle Code is a 'theft offense' under INA §101(a)(43)(G) even though the taking was not intended to be permanent.
In re S-A-, Int. Dec. 3433 (BIA, June 27, 2000)
A woman with liberal Muslim beliefs had established by credible evidence that she had suffered past persecution and has a well-founded fear of future persecution at the hands of her father because of her father’s orthodox Muslim views concerning the proper role of women in Moroccan society.
In re Perez, Int. Dec. No. 3432 (BIA, June 6, 2000)
The offense of burglary of a vehicle in violation of §30.04(a) of the Texas Penal Code is not a “burglary offense” within the definition of an aggravated felony in §101(a)(43)(G) of the Immigration and Nationality Act, 8 USC §1101(a)(43)(G) (Supp. IV 1998).
In re Rodriguez-Diaz, Int. Dec. 3431 (BIA, May 18, 2000)
A pro se alien who accepts an immigration judge’s decision as “final” does not effectively waive the right to appeal where the judge failed to make clear that such acceptance constitutes an irrevocable waiver of appeal rights; therefore, the BIA has jurisdiction to consider the appeal.
In re S-V--, Int. Dec. 3430 (BIA May, 9, 2000)
Under Article 3 of the U. N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, an applicant for protection must establish that the torture feared would be inflicted by or with the acquiescence of a public official or other person acting in an official capacity.
In re Ocampo-Ugalde, Int. Dec. 3429 (BIA, March 24, 2000)
Voluntary departure may not be granted prior to the completion of removal proceedings without an express waiver of the right to appeal by the alien or the alien’s representative.
In re Ignacio Campos-Torres, Int. Dec. 3428 (BIA, 3/21/00)
A firearms offense that renders an alien removable under §237(a)(2)(C) of the INA, is not one “referred to in §212(a)(2)” and thus does not stop the further accrual of continuous residence or continuous physical presence for purposes of establishing eligibility for cancellation of removal.
In Re Saelee, Int. Dec. 3427 (BIA, February 25, 2000)
The BIA upheld a district director’s determination to continue post-deportation order detention, after holding that it had jurisdiction over the respondent’s appeal, and that the respondent was eligible for release under INA §241 (a)(6).
In re Mendoza-Sandino et al., Int. Dec. 3426 (BIA, 2/23/00)
The BIA has ruled that an alien may not accrue the requisite seven years of continuous physical presence for suspension of deportation after service of the Order to Show Cause and Notice of Hearing, since service of the Order to Show Cause ends continuous physical presence.
In re Gary Fitzroy Beckford, Int. Dec. 3425 (BIA 1/19/00)
Where an alien has filed an untimely motion to reopen alleging that the INS failed to prove the alien’s removability, the burden of proof no longer lies with the INS but shifts to the alien to demonstrate that an exceptional situation exists to warrant the BIA to reopen on its own motion.
In re Minette Kanga, Int. Dec. 3424 (BIA, 1/7/00)
An alien convicted of an aggravated felony is not rendered inadmissible under §212(a)(8)(A) of the INA as an alien who is permanently 'ineligible to citizenship.' Only those barred from naturalization for evasion of military service fall under the phrase, 'ineligible to citizenship.'
Unpublished BIA Case Granting Suspension of Deportation
The Board sustains an appeal from an immigration judge’s (IJ) denial of suspension of deportation relief under §203 of the Nicaraguan and Central American Relief Act of 1997 (NACARA).
In re Corso (BIA, 12/29/99, unpublished)
(95 KB - 1/18/2000)
Respondent's success in obtaining writ of error coram nobis from U.S. district court, which then reduced sentence for conspiracy to commit robbery from 366 days to 10 months, results in BIA order terminating removal proceedings. AILA Doc. No. 00011872
BIA #3423 (12/21/99) In re Jose Luis Lopez-Meza
The BIA held that a conviction under Arizona law for an aggravated DUI constitutes conviction of a crime involving moral turpitude ('CIMT'). The BIA also remanded the case for further proceedings.
BIA #3422 (12/10/99) In re K-V-D-
Where an appellate court has interpreted the definition of an 'aggravated felony' under §101(a)(43) of the INA only for purposes of criminal sentence enhancement, the BIA may interpret the phrase differently for purposes of implementing the immigration laws in cases arising within that circuit.
BIA #3421 (12/1/99) In re Theodore M. Minkova
The BIA held, there is no provision in the INA for a widow or widower to file a petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) on behalf of a child; but, under 8 C.F.R. §204.2(b)(4) (1999), the child may be eligible for derivative classification as an immediate relative.
BIA #3420 (11/30/99) In re Ydalia Cruz-Garcia
BIA ruled that when an alien seeks to reopen deportation proceedings conducted in absentia pursuant to §242(b) of the INA, it is appropriate to apply the 'reasonable cause' standard, not the 'exceptional circumstances' standard set forth in §242B of the act.
BIA #3419 (11/30/99) In re Saleem Hassan Masri
BIA held that information provided in an application to adjust an alien’s status to that of a lawful temporary resident under §210 of the INA is confidential and prohibited from use in rescission proceedings under §246 of the INA.
BIA #3418 (11/23/99) Matter of G—D—
BIA holds that in order for change in law to qualify as exceptional situation meriting BIA’s discretion to reopen or reconsider case sua sponte, the change must be fundamental in nature and not merely an incremental development in the state of the law.
BIA #3417 (11/3/99) Matter of Adeniji
BIA addresses issues arising out of expiration of Transition Period Custody Rules.
BIA #3416 (10/20/99) Matter of Truong
BIA upholds deportability, based on IIRAIRA §321(b), of LPR convicted of robbery in 1987; holds that “action taken” in §321(c) includes consideration of case by BIA on or after 9/30/96; concludes that Soriano remains binding on board.
BIA #3413 (10/12/99)In re Rorriguez-Carrillo
IJ’s failure to expressly explain basis for removal decision, while inappropriate, did not necessitate remand for issuance of full and separate decision.
BIA #3414 (10/13/99) In re H--N--
Immigration judge and BIA have jurisdiction to adjudicate alien’s request for waiver of inadmissibility pursuant to INA §209(c), following INS’s initial denial of such waiver.
BIA Decision on Continuous Physical Presence
In an unpublished decision issued August 10, 1999, the Board held that the required period of continuous physical presence can be accrued after service of the OSC in suspension of deportation cases.
BIA #3409 Matter of L-V-K-
An IJ's order of deportation becomes a final decision upon an alien's waiver of the right to appeal. Where an alien files a motion to remand and more than 90 days have passed since entry of that final decision, the BIA lacks jurisdiction to adjudicate the motion because it is time-barred.
BIA #3408 Matter of Julio Antonio Cordova
If the evidence in the record does not indicate that an alien has been convicted of an aggravated felony or charged with deportability under INA section 237(a)(4), the immigration judge has 'the duty' to provide the alien with information about voluntary departure.
BIA #3407 Matter of Suseenthera Kanagasundram
Under 8 C.F.R. § 217.4(a)(1) (1999), proceedings against an alien who has been refused admission under the Visa Waiver Pilot Program and who has applied for asylum must be commenced with a Notice of Referral to Immigration Judge (Form I-863).
BIA #3406 Matter of A-N- & R-M-N-
Certain aliens seeking to reopen exclusion proceedings to apply for asylum and withholding of deportation need not demonstrate 'reasonable cause' for their failure to appear at the prior exclusion hearing.
BIA #3404 Matter of Paul SUSMA
A motion to reopen must be filed no later than 90 days after the date of the final administrative decision of the IJ or the BIA.
BIA #3403 Matter R-A-
Where a victim of domestic violence fails to introduce meaningful evidence that her husband's behavior was influenced by his perception of her opinion, she has not demonstrated harm on account of political opinion or imputed political opinion.
BIA #3402 Matter of Rafael ESPINOZA-Gonzalez
A conviction for misprision of a felony does not constitute a conviction for an aggravated felony under section 101(a)(43)(S) of the INA, as an offense relating to obstruction of justice.
BIA #3401 Matter of R-S-J-
For purposes of section 101(f)(6) of the INA, false oral statements under oath to an asylum officer can constitute false testimony as defined by the United States Court of Appeals for the Ninth Circuit in Phinpathya v. INS.
BIA #3400 Matter of Mario Salvador RUIZ-MASSIEU
To establish deportability, INS must prove by clear, unequivocal, convincing evidence that the Secretary of State has made a facially reasonable, bona fide determination that an alien’s presence or activities in the U.S. would have potentially serious adverse foreign policy consequences.
BIA #3399 Matter of Eloy ARGUELLES-Campos
Although an alien who applies for voluntary departure under either section 240B(a) or (b) of the Act must establish that a favorable exercise of discretion is warranted, the IJ has broader authority to grant voluntary departure in discretion before the conclusion of removal proceedings...
BIA #3396 Matter of United Airlines Flight UA802
A carrier is subject to fine under section 273(a) of the INA when an alien passenger it has transported to the U.S. is paroled into the country but is not granted a waiver of documents under 8 C.F.R. § 212.1(g).
BIA #3397 Matter of Ponce-Hernandez
INS met its burden of establishing a minor respondent's deportability where (1) Form I-213 was submitted; (2) the respondent made no challenge to the admissibility of the Form I-213; and (3) there were no grounds for a finding that the admission of the Form I-213 would be fundamentally unfair.
BIA #3398 Matter of Joseph
An LPR will not be considered 'properly included' in a mandatory detention category when an IJ or the BIA finds that it is substantially unlikely that the INS will prevail on a charge of removability.
BIA #3395 Matter of Luis-Rodriguez
Sec. 241(a) does not require evidence that the alien was either engaged in an act of espionage or was convicted of violating a law relating to espionage. An alien who has knowledge of, or has received instruction in, the espionage or counter-espionage of a foreign government is deportable.
BIA #3394 Matter of H-A-
Matter of Arthur is not inconsistent with the motions to reopen regulations at 8 C.F.R. §§ 3.2(c)(2) and 3.23(b)(4)(i).
BIA #3393 Matter of Ulloa
Immigration Judges have jurisdiction to grant a waiver of inadmissibility under section 213 of the INA, and are required to advise an alien found to be inadmissible as a public charge under section 212(a)(4)(B) of his or her right to apply for a waiver.
BIA #3392 Matter of Guzman-Arguera
BIA lacks jurisdiction to consider an appeal from an in absentia order in removal proceedings where section 240(b)(5)(C) of the INA provides that such an order may only be rescinded by filing a motion to reopen with the Immigration Judge.
BIA #3391 Matter of Alvarado-Alvino
An alien convicted of an offense described in section 275(a) of the INA is not convicted of an aggravated felony as that term is defined in section 101(a)(43)(N), which specifically refers to those offenses relating to alien smuggling described in sections 274(a)(1)(A) and (2) of the Act.
BIA Interim Decision #3390 -- Matter of Sweetser
Where the state statute under which an alien has been convicted is divisible it is necessary to look to the record of conviction, and to other documents admissible as evidence in proving a criminal conviction, to determine whether the specific offense constitutes an aggravated felony.
Non-Precedent BIA Decision on DWI as CIMT
In an unpublished decision dated March 16, 1999 the BIA held that a misdemeanor DWI conviction under Tex. Penal Code Ann. Sec. 49.09 (1998) was not a CIMT.
Interim Decision (BIA) 3389
Pursuant to section 240A(d)(1), continuous residence or physical presence for cancellation purposes is deemed to end on the date a qualifying offense has been committed. The period of continuous residence required for relief under section 240A(a) commences when the alien has been admitted in any status, which includes admission as a temporary resident.
Interim Decision (BIA) 3388
A carrier is subject to fine under section 273(a) of the INA, for bringing an alien passenger without proper documents to the United States even though the alien passenger is a lawful permanent resident who was subsequently granted a waiver.
Interim Decision (BIA) 3387
The INS's filing of a Form EOIR-43 provides an automatic stay of an IJ's order releasing an alien who is charged with removal under one of the mandatory detention grounds set forth in section 236(c)(1), even where the IJ has determined that the alien is not subject to section 236(c)(1) and has terminated the removal proceedings on that charge.
Interim Decision (BIA) 3386
Alien convicted of bringing an illegal alien into the U.S. The BIA upholds that a determination whether an alien convicted of an aggravated felony, with less than 5 years' imprisonment, has been convicted of a 'particularly serious crime', requires an individual examination of the nature of the conviction, the sentence imposed, and the circumstances and underlying facts of the conviction.
Interim Decision (BIA) 3385
Revised - For purposes of determining eligibility for suspension of deportation, the period of continuous physical presence ends at the issuance of the Order to Show Cause and Notice of Hearing (Form I-221), irrespective of the date that it was issued.
Intrim Decision (BIA) 3384
An alien whose conviction for an aggravated felony was subsequent to her adjustment of status to that of a lawful permanent resident is deportable under section 237(a)(2)(A)(iii), as an alien who was convicted of an aggravated felony 'after admission.'
Interim Decision (BIA) 3383
An alien whose conditional permanent residence was terminated by the Immigration and Naturalization Service under section 216(b) of the INA, before the 90-day petitioning period preceding the second anniversary of the grant of status, may file an application for a waiver under section 216(c)(4) of the Act.
Interim Decision (BIA) 3382
An alien convicted of causing a financial institution to fail to file currency transaction reports and of structuring currency transactions to evade reporting requirements, whose offense did not include any morally reprehensible conduct, is not convicted of a crime involving moral turpitude.
Interim Decision (BIA) 3381
BIA concludes that the applicant's motion to reopen exclusion proceedings conducted in absentia was not barred by the regulatory time limitations. Furthermore, the applicant has established that a serious illness provided her with 'reasonable cause' for missing her scheduled exclusion hearing.
BIA #3880 Matter of CERVANTES-Gonzalez
The underlying fraud or misrepresentation for which an alien seeks a waiver of inadmissibility under section 212(i) of the Act may be considered as an adverse factor in adjudicating the waiver application in the exercise of discretion.
Interim Decision (BIA) 3379
An alien who was convicted of submitting a false claim with intent to defraud arising from an unsuccessful scheme to obtain $15,000 from an insurance company was convicted of an 'attempt' to commit a fraud in which the loss to the victim exceeded $10,000 within the meaning of section 101(a)(43)(U), and therefore is deportable as an alien convicted of an aggravated felony.
Interim Decision (BIA) 3378
Although the paternity must be established in order to qualify as a 'legitimated' child under section 101(b)(1)(C) of the INA, the child's father need not prove that they have any relationship other than a purely biological one. A personal relationship is not necessary.
Interim Decision (BIA) 3377
BIA Limits Ability to Erase Convictions, Criminal Records - In re Mauro Roland-Santoyo - BIA states that no effect is to be given in immigration proceedings to state action to expunge, vacate, dismiss or otherwise remove record of guilt or conviction.
BIA Addresses Question of When a Summary Decision is Appropriate
A summary decision pursuant to 8 C.F.R. § 240.12(b) (1998) may properly be issued by an Immigration Judge in removal proceedings in lieu of an oral or written decision only when the respondent has expressly admitted to both the factual allegations and the charges of removability.
Interim Decision (BIA) 3376
An alien who is convicted of transporting an illegal alien within the U.S. is in violation of section 274(a)(1)(A)(ii), was convicted of an aggravated felony, and is therefore deportable under section 241(a)(2)(A)(iii).
BIA Addresses "Particularly Serious Crime" Definition
This case discusses further the circumstances that define a 'particularly serious crime' that is deportable under IIRAIRA and AEDPA.
Approved I-360 Petition Based On VAWA
The Vermont Service Center recently approved a Special Immigrant Petition based on the Violence against Women Act (VAWA), after petitioner's counsel demonstrated that petitioner still met the good moral character requirement despite a petit larceny record which surfaced during the I-360 processing.
BIA Non-Precedent on Hardship
The BIA concludes that the respondents have established extreme hardship, and that they merit relief in the exercise of discretion.
Interim Decision (BIA) 3373
An alien who was convicted of arson in the first degree under the law of Alaska and sentenced to 7 years' imprisonment with 3 years suspended was convicted of a 'crime of violence' within the meaning of section 101(a)(43)(F) of the INA, and therefore is deportable under section 237(a)(2)(A)(iii) of the Act, as an alien convicted of an aggravated felony.
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