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Cases & Decisions
Department of Justice/EOIR
2000 - 1999
2000 - 1999
BIA Finds Motion to Remand Does Not Cure Untimely Motion to Reopen
The BIA held that 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 entry of a final administrative decision does not cure the untimeliness of the initial motion to reopen. (
Matter of Oparah
AILA Doc. No. 00121803.
BIA Says CA Possession of a Firearm by a Felon Is Not an Aggravated Felony
The BIA held that possession of a firearm by a felon in violation of §12021(a)(1) of the California Penal Code is not an aggravated felony under INA §101(a)(43)(E) because it is not an offense “described in” 18 USC §922(g)(1). (
Matter of Vasquez-Muniz
AILA Doc. No. 00120504.
BIA on AEDPA 440(d) in the Second Circuit
The BIA held that pursuant to
Henderson v. INS
, a respondent in the 2nd Circuit whose proceedings were pending on 4/24/96 is not subject to the changes made to §212(c) by AEDPA §440(d). (
Matter of Davis
AILA Doc. No. 00110603.
BIA on Mandatory Custody and Transitional Rules
The BIA held that INA §236(c) does not apply to an alien who was convicted after expiration of the Transition Period Custody Rules, but who was released prior to the expiration of the rules, and who was not confined or restrained as a result of that conviction. (
Matter of West
AILA Doc. No. 00103003.
BIA Finds Attempted Possession of Stolen Property Is an Aggravated Felony
The BIA held that the respondent’s conviction for attempted possession of stolen property is an aggravated felony theft offense under INA §§101(a)(43)(G) and (U). (
Matter of Bahta
AILA Doc. No. 00100473.
BIA on Effect of New York Vacatur on Conviction for Immigration Purposes
The BIA held that a conviction that has been vacated under Article 440 of New York Criminal Procedure Law is no longer a conviction for immigration purposes within the meaning of INA §101(a)(48)(A). (
Matter of Rodriguez-Ruiz
AILA Doc. No. 00092604.
BIA on Impact of Resentencing on Youthful Offenders in New York
The BIA held that 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. (
Matter of Devison-Charles
AILA Doc. No. 00091403.
BIA Says California Taking of a Vehicle Is an Aggravated Felony
The BIA held that the respondent’s conviction for unlawful driving and taking of a vehicle in violation of §10851 of the California Vehicle Code is an aggravated felony theft offense even though the taking was not intended to be permanent. (
Matter of V-Z-S-
AILA Doc. No. 00080204.
BIA Finds Liberal Muslim Woman Eligible for Asylum
The BIA held that a woman with liberal Muslim beliefs had suffered past persecution and has a well-founded fear of future persecution at the hands of her father who holds orthodox Muslim views concerning the role of women in Moroccan society. (
Matter of S-A-
AILA Doc. No. 00062803.
BIA Says Texas Burglary of a Vehicle Is Not an Aggravated Felony
The BIA held that burglary of a vehicle in violation of §30.04(a) of the Texas Penal Code is not an aggravated felony “burglary offense” under INA §101(a)(43)(G). (
Matter of Perez
AILA Doc. No. 00060705.
BIA on Waiver of Appeal by Pro Se Alien
The BIA held that a pro se alien who accepts an IJ’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. (
Matter of Rodriguez-Diaz
AILA Doc. No. 00052202.
BIA Says CAT Requires Government Acquiescence
The BIA held that under Article 3 of the CAT, 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. (
Matter of S-V-
AILA Doc. No. 00051104.
BIA on Pre-Hearing Voluntary Departure
The BIA held that 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. (
Matter of Ocampo-Ugalde
AILA Doc. No. 00032903.
BIA Finds Firearm Offense Does Not Cut Off Continuous Residence for Cancellation
The BIA held that a firearms offense that renders an alien removable under INA §237(a)(2)(C) is not one “referred to in §212(a)(2)” and thus does not stop the accrual of continuous residence or physical presence for purposes of cancellation of removal. (
Matter of Campos-Torres
AILA Doc. No. 00032302.
BIA Upholds Decision to Detain Respondent Post-Order
The BIA upheld the 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). (
Matter of Saelee
AILA Doc. No. 00032478.
BIA Says Service of OSC Stops Physical Presence
The BIA held that an alien may not accrue continuous physical presence for suspension of deportation after service of the order to show cause and notice of hearing. (
Matter of Mendoza-Sandino
AILA Doc. No. 00022401.
BIA on Burden of Proof in Motions to Reopen
The BIA held that where an alien has filed an untimely motion to reopen alleging that the INS failed to prove removability, the burden of proof shifts to the alien to demonstrate that an exceptional situation exists to warrant the BIA to reopen on its own motion. (
Matter of Beckford
AILA Doc. No. 00011904.
BIA Interprets "Permanently Ineligible for Citizenship"
The BIA held that an alien convicted of an aggravated felony is not inadmissible under INA §212(a)(8)(A) as an alien who is permanently ineligible for citizenship and that 212(a)(8)(A) only encompasses those barred from naturalization for evasion of military service. (
Matter of Kanga
AILA Doc. No. 00011802.
BIA Overturns IJ's Denial of NACARA Suspension
In an unpublished decision dated 11/15/99, the BIA sustained the appeal of the immigration judge’s denial of suspension of deportation under §203 of the Nicaraguan and Central American Relief Act of 1997 (NACARA).
AILA Doc. No. 00010702.
BIA Finds Writ of Error Coram Nobis Warrants Termination of Proceedings
(95 KB - 1/18/2000)
In an unpublished decision, the BIA held that respondent's success in obtaining a writ of error coram nobis which reduced his sentence for conspiracy to commit robbery from 366 days to 10 months warranted termination of proceedings. (
Matter of Corso
AILA Doc. No. 00011872.
BIA Says Arizona Aggravated DUI Is a CIMT
The BIA held that a conviction under Arizona law for an aggravated DUI, which requires knowledge that the driver is prohibited from driving, is a crime involving moral turpitude. (
Matter of Lopez-Meza
AILA Doc. No. 99122201.
BIA on Interpreting the Aggravated Felony Definition
The BIA held that where an appellate court interprets the aggravated felony definition for purposes of a criminal sentence enhancement, the BIA may interpret it differently for purposes of implementing the immigration laws in cases arising within that circuit. (
Matter of K-V-D-
AILA Doc. No. 99121404.
BIA on Children of Widow(er)s
The BIA held that there is no provision in the INA for a widow or widower to file an I-360 petition on behalf of a child but under 8 CFR §204.2(b)(4), the child may be eligible for derivative classification as an immediate relative. (
Matter of Minkova
AILA Doc. No. 99121403.
BIA Says "Reasonable Cause" Standard Applies to MTR In Absentia Proceedings
The BIA held that when an alien seeks to reopen in absentia proceedings, it is appropriate to apply the "reasonable cause" standard, not the "exceptional circumstances" standard set forth in INA §242B. (
Matter of Cruz-Garcia
AILA Doc. No. 99121402.
BIA on Confidentiality of SAW Applications
The BIA held that information provided in an application to adjust an alien’s status to that of a lawful temporary resident under INA §210 is confidential and prohibited from use in rescission proceedings under INA §246. (
Matter of Masri
AILA Doc. No. 99121401.
BIA on Change in Law as Basis for Sua Sponte Reopening
The BIA held that in order for a change in law to qualify as exceptional situation meriting sua sponte reopening or reconsideration, the change must be fundamental in nature and not merely an incremental development. (
Matter of G-D-
AILA Doc. No. 99120677.
BIA on Transition Period Custody Rules
The BIA held that INA 236(c) does not apply to aliens whose most recent release from custody by an authority other than the INS occurred prior to the expiration of the Transition Period Custody Rules. (
Matter of Adeniji
AILA Doc. No. 99120676.
BIA Says "Actions Taken" Include BIA Appeals
The BIA held that the term "actions taken" in IIRIRA 321(c), which limits the applicability of the aggravated felony definition, includes consideration of a case by the BIA such that the definition is applicable to cases decided by the Board on or after 9/30/96. (
Matter of Truong
AILA Doc. No. 99120675.
BIA Upholds IJ's Order of Removal
The BIA held that the IJ’s failure to expressly explain the basis for the removal decision, while inappropriate, did not necessitate remand for issuance of full and separate decision. (
Matter of Rodriguez-Carrillo
AILA Doc. No. 99111201.
BIA and IJ Have Jurisdiction to Review Denial of 209(c) Waiver
The BIA held that immigration judges and BIA have jurisdiction to adjudicate an alien’s request for a waiver of inadmissibility under to INA §209(c), following INS’s denial of such waiver. (
Matter of H-N-
AILA Doc. No. 99111002.
BIA Says Physical Presence Can Accrue After Service of OSC
In an unpublished decision, the BIA held that the required period of continuous physical presence can be accrued after service of an Order to Show Cause in suspension of deportation cases.
AILA Doc. No. 99090340.
BIA Finds No Jurisdiction Over Motion to Remand
The BIA held that where an alien files a motion to remand during the pendency of an appeal from an IJ's denial of a motion to reopen and more than 90 days have passed since entry of the final administrative decision, the motion is time-barred. (
Matter of L-V-K-
AILA Doc. No. 99081658.
BIA on Duty of IJ to Provide Information on Voluntary Departure
The BIA held that if the record does not indicate that an alien has been convicted of an aggravated felony or charged with deportability under INA 237(a)(4), the IJ has a duty to provide the alien with information about voluntary departure. (
Matter of Cordova
AILA Doc. No. 99081058.
BIA on Commencement of Proceedings for VWP Travelers
The BIA held that under 8 CFR §217.4(a)(1), proceedings against an alien who has been refused admission under the Visa Waiver Program and who has applied for asylum must be commenced with a Notice of Referral to Immigration Judge (Form I-863). (
Matter of Kanagasundram
AILA Doc. No. 99080359.
BIA on MTRs Based on Changed Circumstances
the BIA held that aliens seeking to reopen exclusion proceedings to apply for asylum or withholding based on changed circumstances who meet the general requirements for MTRs need not demonstrate "reasonable cause" for failure to appear. (
Matter of A-N- & R-M-N-
AILA Doc. No. 99072758.
BIA on Timing of MTRs Following Judicial Review
The BIA held that a motion to reopen a decision of the Board following judicial review is untimely if it is filed more than 90 days after the date of the Board's decision, even if the motion is filed within 90 days of the order of the court. (
Matter of Susma
AILA Doc. No. 99062540.
BIA Rejects Domestic Violence/Political Opinion Claim
The BIA held that 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. (
Matter of R-A-
AILA Doc. No. 99062241.
BIA Says Misprision of a Felony Is Not an Aggravated Felony Under INA 101(a)(43)(S)
The BIA held that misprision of a felony is not an aggravated felony obstruction of justice offense under INA 101(a)(43)(S). (
Matter of Espinoza-Gonzalez
AILA Doc. No. 99062240.
BIA Says False Statements to Asylum Officer Is False Testimony
The BIA held that for purposes of INA 101(f)(6), 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
Matter of R-S-J-
AILA Doc. No. 99061141.
BIA on Foreign Policy Grounds of Deportability
The BIA held that a letter from the DOS Secretary stating reasonable and bona fide reasons for finding that the alien's presence would have serious foreign policy consequences is sufficient evidence that the alien is deportable under INA 241(a)(4)(C)(i). (
Matter of Ruiz-Massieu
AILA Doc. No. 99061140.
BIA on Discretion to Grant Voluntary Departure
The BIA held that although an alien who applies for voluntary departure under INA 240B(a) or (b) must establish that a favorable exercise of discretion is warranted, the IJ has broader authority to grant relief before the conclusion of proceedings. (
Matter of Arguelles-Campos
AILA Doc. No. 99060841.
BIA on Airline Fines When Alien Is Paroled
The BIA held that a carrier is subject to fines under INA 273(a) 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 CFR §212.1(g). (
Matter of United Airlines Flight UA802
AILA Doc. No. 99060299.
BIA Says INS Met Burden of Establishing Deportability of Minor
The BIA found that the INS met its burden of establishing a minor's deportability where (1) Form I-213 was submitted; (2) the respondent made no challenge to its admissibility; and (3) admission of the Form I-213 would not be fundamentally unfair. (
Matter of Ponce-Hernandez
AILA Doc. No. 99060298.
BIA on Mandatory Detention of LPRs
The BIA held that an LPR will not be considered "properly included" in a mandatory detention category when the IJ or the BIA finds that it is substantially unlikely that the INS will prevail on a charge of removability. (
Matter of Joseph
AILA Doc. No. 99060240.
BIA on Espionage Grounds of Deportability
The BIA held that INA 241(a) does not require that the alien engaged in an act of espionage or was convicted of an espionage offense; knowledge of, or having received instruction in espionage or counter-espionage of a foreign government is sufficient. (
Matter of Luis-Rodriguez
AILA Doc. No. 99052790.
Matter of Arthur
on Motions to Reopen
The BIA held that
Matter of Arthur
, which requires an approved immediate relative visa petition before a case may be reopened for AOS is not inconsistent with the motions to reopen regulations at 8 CFR §§3.2(c)(2) and 3.23(b)(4)(i). (
Matter of H-A-
AILA Doc. No. 99052658.
BIA Says IJ May Grant Public Charge Waiver
The BIA found that IJs have jurisdiction to grant a waiver of inadmissibility under INA 213 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. (
Matter of Ulloa
AILA Doc. No. 99052556.
BIA Says In Absentia Motion Must Be Filed with the IJ
The BIA lacks jurisdiction to consider an appeal from an in absentia order in removal proceedings because INA 240(b)(5)(C) provides that such an order may only be rescinded by filing a motion to reopen with the IJ. (
Matter of Guzman-Arguera
AILA Doc. No. 99052557.
BIA Finds INA 275 Is Not an Aggravated Felony
The BIA held that an alien convicted of an offense described in INA 275(a) is not convicted of an aggravated felony under section 101(a)(43)(N), which specifically refers to alien smuggling offenses described in INA 274(a)(1)(A) and (2). (
Matter of Alvarado-Alvino
AILA Doc. No. 99052559.
BIA on Analysis of Divisible Statutes
The BIA held that where the state statute of conviction is divisible, it is necessary to look to the record of conviction and other documents to determine whether the specific offense constitutes an aggravated felony. (
Matter of Sweetser
AILA Doc. No. 99051957.
BIA Says Texas DWI Is Not a CIMT
In an unpublished decision, the BIA held that a misdemeanor DWI conviction under Tex. Penal Code Ann. Sec. 49.09 (1998) is not a crime involving moral turpitude. (
Matter of Reyes-Torres
AILA Doc. No. 99051240.
BIA Holds Stop-Time Rule Applies on Date Offense Committed
The BIA held that under INA 240A(d)(1), continuous residence or physical presence for cancellation of removal purposes is deemed to end on the date a qualifying offense has been committed. (
Matter of Perez
AILA Doc. No. 99051257.
BIA on Airline Liability for Passengers Without Proper Documents
The BIA held that a carrier is subject to fines under INA 273(a) for bringing an alien passenger without proper documents to the U.S. even though the alien is a lawful permanent resident who was granted a waiver. (
Matter of Air India Airlines Flight No. AI 101
AILA Doc. No. 99050455.
BIA on Mandatory Detention and Effect of Filing EOIR-43
The BIA held that the filing of Form EOIR-43 by the INS automatically stays an IJ's order releasing an alien who is charged under INA 236(c)(1), even where the IJ terminated proceedings after finding the alien is not subject to 236(c)(1). (
Matter of Joseph
AILA Doc. No. 99050456.
BIA Says Alien Smuggling Is Not a Particularly Serious Crime
The BIA held that an alien convicted of smuggling under INA 274(a)(2)(B)(iii) and sentenced to 32 months imprisonment has not been convicted of a particularly serious crime and is eligible to apply for withholding of removal under section 241(b)(3)(B)(ii) of the Act. (
Matter of L-S-
AILA Doc. No. 99041659.
BIA Says Issuance of OSC Cuts Off Physical Presence
The BIA held that 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, irrespective of the date that it was issued. (
Matter of Nolasco-Tofino
AILA Doc. No. 99050457.
BIA Equates AOS to "Admission" for Aggravated Felony Purposes
The BIA held that an alien convicted of an aggravated felony subsequent to adjustment of status is deportable under INA 237(a)(2)(A)(iii) as an alien convicted of an aggravated felony "after admission." (
AILA Doc. No. 99040759.
BIA on Termination of Conditional Residence Status
The BIA held that an alien whose conditional residence was terminated under INA section 216(b), before the 90-day 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. (
Matter of Stowers
AILA Doc. No. 99032656.
BIA Finds Failure to File Financial Reports Is Not a CIMT
The BIA held that a conviction for causing a financial institution to fail to file currency transaction reports and structuring currency transactions to evade reporting requirements is not a crime involving moral turpitude. (
Matter of L-V-C-
AILA Doc. No. 99032657.
BIA Finds In Absentia MTR Not Barred by Time Limitations
The BIA held that the applicant's in absentia motion to reopen was not barred by the regulatory time limitations and that the applicant's serious illness provided her with reasonable cause for missing her scheduled exclusion hearing. (
Matter of N-B-
AILA Doc. No. 99032458.
BIA on Discretionary 212(i) Waiver Determinations
(593 KB - 3/11/1999)
The BIA held that the underlying fraud or misrepresentation for which an alien seeks a waiver under INA 212(i) may be considered as an adverse factor in adjudicating the waiver application in the exercise of discretion. (
Matter of Cervantes-Gonzalez
AILA Doc. No. 99031156.
BIA Finds Respondent Deportable for Fraud Attempt Conviction
The BIA held that an alien 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 attempted fraud, an aggravated felony. (
Matter of Onyido
AILA Doc. No. 99031153.
BIA Says Personal Relationship Is Not Required for Legitimation
The BIA held that although paternity must be established in order to qualify as a "legitimated" child under INA 101(b)(1)(C), the child's father need not prove that they have any relationship other than a purely biological one. (
Matter of Pagan
AILA Doc. No. 99031154.
BIA Says State Vacatur Has No Effect on Conviction for Immigration Purposes
The BIA held that an alien who has had his guilty plea to the offense of possession of a controlled substance vacated and his case dismissed upon termination of his probation under Idaho law is considered to have a conviction for immigration purposes. (
Matter of Roldan-Santoyo
AILA Doc. No. 99031155.
BIA Provides Framework for IJ Summary Decisions
The BIA held that a summary decision under 8 CFR §240.12(b) may properly be issued by an IJ 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. (
Matter of A-P-
AILA Doc. No. 99021157.
BIA Says Transporting an Illegal Alien Is an Aggravated Felony
The BIA held that an alien who is convicted of transporting an illegal alien within the U.S. in violation of INA 274(a)(1)(A)(ii) is convicted of an aggravated felony as defined in INA 101(a)(43)(N). (
Matter of Ruiz-Romero
AILA Doc. No. 99021156.
BIA on "Particularly Serious Crime" Determination
The BIA held that first degree armed robbery of an occupied home, where the sentence imposed was 55 months imprisonment, is a "particularly serious crime" rendering the alien ineligible for withholding. (
Matter of S-S-,
AILA Doc. No. 99020155.
VSC Approves VAWA-Based I-360
The Vermont Service Center approved a special immigrant petition based on the Violence Against Women Act (VAWA), finding that the petitioner still met the good moral character requirement despite a petit larceny conviction.
AILA Doc. No. 99011258.
BIA Reverses IJ, Finds Respondents Eligible for Suspension of Deportation
In a non-precedent decision, the BIA concluded that the respondents would suffer extreme hardship if deported to the Philippines, noting that they have developed significant economic, familial, and cultural ties to the U.S. (
Matter of Abriam
AILA Doc. No. 99011159.
BIA Finds Alaska First Degree Arson Is an Aggravated Felony
The BIA held that the alien's conviction for first degree arson in Alaska, where he was sentenced to 7 years imprisonment with 3 years suspended is a crime of violence, and therefore, an aggravated felony. (
Matter of Palacios-Pinera
AILA Doc. No. 99010756.
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