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2006

  • BIA Denies Motion to Reconsider Based on Prior Arguments and Authority (12/7/2006)
    The BIA held that a motion to reconsider must be supported by material error; where there is new law, an explanation of its material effect; and, for affirmation without opinion, a showing that errors were raised on appeal. Matter of O-S-G-, 24 I&N Dec. 56 (BIA 2006)
    AILA Doc. No. 06120765.
  • BIA Upholds Seven-Year Suspension of Disbarred Attorney (11/16/2006)
    The BIA held a disbarment order creates a presumption of misconduct rebuttable only by a showing of lack of due process, infirmity of proof or grave injustice, and upheld a seven-year suspension against a New York attorney. Matter of Truong, 24 I&N Dec. 52 (BIA 2006)
    AILA Doc. No. 06111663.
  • BIA Holds Failure to Post Bond Not Same as Failure to Depart (11/15/2006)
    The BIA held that failure to post voluntary departure bond does not make respondent subject to penalties for failure to depart under §240B(d)(1) and granted the motion to reopen proceedings for further consideration of cancellation of removal. Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006)
    AILA Doc. No. 06111510.
  • BIA Rules REAL ID Only Applies to Applications Filed Affer Effective Date (11/2/2006)
    The BIA held that REAL ID provisions apply only to relief applications initially filed with an asylum officer or IJ on or after 5/11/05 – not to an asylum application filed with an asylum officer prior to this date but subsequently renewed. In re S-B-, 24 I&N Dec. 42 (BIA 2006)
    AILA Doc. No. 06110268.
  • BIA Finds Alternative Holdings Retain Precedential Value (9/28/2006)
    The BIA held that when the AG overrules one holding but expressly declines to vacate others, they retain their precedential value. Matter of Robles-Urrea, 24 I&N Dec. 22 (BIA 2006)
    AILA Doc. No. 06092867.
  • BIA Finds Traffic Jam Was “Exceptional Circumstance”(130 KB - 9/22/2006)
    In an unpublished decision, the BIA overturned the IJ’s denial of a motion to reopen after entry of an in absentia removal order, finding that the well-documented, hours-long traffic jam that caused the alien to miss the hearing was an “exceptional circumstance”. Courtesy of David B. Pakula.
    AILA Doc. No. 06092260.
  • BIA Clarifies Asylum Eligibility for Spouses/Partners in Forced Sterilization/Abortion Cases (9/20/2006)
    The BIA held that an alien whose spouse was forced to undergo an abortion or sterilization can establish past persecution if they were legally married at the time. Matter of S-L-L, 24 I&N Dec. 1 (BIA 2006)
    AILA Doc. No. 06092070.
  • BIA Finds Delay By Overnight Courier Not An "Exceptional Circumstance" (9/13/2006)
    The BIA held that it lacked authority to extend the 30-day time limit for filing an appeal and a one day delay by an overnight delivery service did not warrant consideration of an untimely appeal on certification. Matter of Liadov, 23 I&N Dec. 990 (BIA 2006)
    AILA Doc. No. 06091363.
  • BIA Finds 237(a)(1)(H) Waiver Applies to Innocent Misrepresentations (9/6/2006)
    The BIA held that INA §237(a)(1)(H) authorizes a waiver of removability regardless of whether the misrepresentation at the time of admission was willful or innocent. Matter of Guang Li Fu, 23 I&N Dec. 985 (BIA 2006)
    AILA Doc. No. 06090663.
  • BIA Holds Offense Must be Completely “Political” To Qualify for Waiver (8/31/2006)
    The BIA held that “purely political offense” exception to inadmissibility only applied to CIMTs that are completely or totally “political” and respondent’s conviction for aiding and abetting the murder of two British corporals did not qualify. Matter of O'Cealleagh, 23 I&N Dec. 976 (BIA 2006)
    AILA Doc. No. 06083161.
  • BIA on Effective Date of CSPA(15 KB - 8/15/2006)
    In an unpublished decision, the BIA remanded, finding that the respondent's adjustment application was pending before the Immigration Court after 8/6/02, the date of enactment of CSPA, and she qualifies as a "child" under CSPA formula. Courtesy of Juan Lorenzo Rodriguez Quesada.
    AILA Doc. No. 06081510.
  • BIA Holds Domestic Battery Not a CIMT or “Crime of Domestic Violence” (8/3/2006)
    The BIA held that a conviction for domestic battery under the California Penal Code does not qualify categorically as a conviction for a “crime involving moral turpitude” under INA or, in Ninth Circuit removal proceedings, as a “crime of violence”. Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006)
    AILA Doc. No. 06080360.
  • BIA Affirms Asylum for Former Child Soldier(482 KB - 7/12/2006)
    In an unpublished decision, the BIA affirmed the IJ’s decision to grant asylum, noting the respondent established a well-founded fear of persecution based on his Acholi tribal membership, as well as the possibility he could be identified as a former child soldier.
    AILA Doc. No. 06071259.
  • BIA Finds Derivative Citizenship Where Paternity Not Legitimated By Marriage (6/29/2006)
    The BIA held that where the respondent was born out of wedlock in Guyana and his natural parents were never married, his paternity was not established through legitimation, so he is not ineligible to obtain derivative citizenship. Matter of Lawrence Rowe, 23 I&N Dec. 962 (BIA 2006)
    AILA Doc. No. 06062968.
  • BIA Finds Social Visibility Important in Determining Whether a Particular Social Group Exist (6/15/2006)
    The BIA held that social visibility of a claimed social group is important in identifying if a “particular social group” exists and that a group of former drug informants working against the Cali cartel did not have the requisite social visibility. Matter of C-A-, 23 I&N Dec. 951 (BIA 2006)
    AILA Doc. No. 06061511.
  • BIA Denies Relief to Burmese Chin Based on Finding of Material Support(78 KB - 6/9/2006)
    The BIA rejected a “totality of the circumstances” test for whether an organization is engaged in terrorist activity and refused to consider an alien’s intent in making a donation or the recipient’s intended use when deciding “material support”. Matter of S-K-, 23 I&N Dec. 936 (BIA 2006)
    AILA Doc. No. 06060971.
  • BIA Rules EWI Ineligible for Adjustment Under CSPA (5/31/2006)
    The BIA held that an alien who entered without inspection is not eligible for adjustment under the Chinese Student Protection Act of 1992 and may not amend or renew an adjustment during proceedings under 245(i). Matter of Jian An Wang, 23 I&N Dec. 924 (BIA 2006)
    AILA Doc. No. 06053163.
  • Attorney General Disapproves CAT Relief for Mentally Ill Respondent (5/11/2006)
    The AG found that the mentally ill pre se respondent did not show eligibility for CAT as evidence did not establish that each step in the hypothetical chain of events leading to torture is more likely than not to happen. Matter of J-F-F-, 23 I&N 912 (AG 2006)
    AILA Doc. No. 06051110.
  • BIA Rules on Retroactivity of IIRIRA Unlawful Presence Ten-Year Bar(40 KB - 4/7/2006)
    The BIA held that no period of an alien’s presence in the United States prior to 4/1/97 may be considered “unlawful presence” for purposes of determining whether the alien is inadmissible under 8 U.S.C. Section 1182(a)(9)(B)(i)(II). Matter of Raul-Rodarte, 23 I&N Dec. 902 (BIA 2006)
    AILA Doc. No. 06040610.
  • BIA Refuses Reopening on Forced Sterilization Claim (3/24/2006)
    The BIA held that an alien seeking to reopen removal proceedings based on a claim that the birth of a second child in the U.S. will result in the alien’s forced sterilization in China cannot establish prima facie eligibility for relief. Matter of C-C-, 23 I&N Dec. 899 (BIA 2006)
    AILA Doc. No. 06032415.
  • BIA Rules on Cancellation of Removal and Continuous Physical Presence Requirement (3/24/2006)
    The BIA held that the requirement that an applicant for cancellation of removal must demonstrate statutory eligibility for that relief prior to the service of a notice to appear applies only to the continuous physical presence requirement. Matter of Bautista Gomez, 23 I&N Dec. 893 (BIA 2006)
    AILA Doc. No. 06032411.
  • BIA Finds that Adjustment Can Not Be Based on a Previously Used Visa Petition (3/10/2006)
    The BIA held that an application for adjustment of status cannot be based on an approved visa petition that has already been used by the beneficiary to obtain adjustment of status or admission as an immigrant. Matter of Villarreal-Zungia, 23 I&N Dec. 886 (BIA 2006)
    AILA Doc. No. 06031061.
  • BIA Rules on Failure of Trial Court to Advise of Immigration Consequences of Guilty Plea (2/9/2006)
    The BIA held that a conviction, vacated pursuant to Section 2943.031 of the Ohio Revised Code for failure of trial court to advise of possible immigration consequences of a guilty plea, is no longer a valid conviction for immigration purposes. Matter of Adamiak, 23 I&N Dec. 878 (BIA 2006)
    AILA Doc. No. 06020972.
  • BIA on Inadmissibility After Reentry Post-Removal(60 KB - 1/30/2006)
    The BIA holds that a person who enters without admission after removal is inadmissible even if AG granted permission to reapply for admission prior to reentering unlawfully. Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2005)
    AILA Doc. No. 06013013.
  • BIA Says Victim of Sexual Abuse Under 18 Years Old is a Minor(26 KB - 1/26/2006)
    The BIA held that a victim of sexual abuse under the age of 18 is a minor for purposes of determining whether an alien has been convicted of sexual abuse of a minor within the meaning of the INA. Matter of V-F-D, 23 I&N Dec. 859 (BIA 2005)
    AILA Doc. No. 06012660.
 
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