2002 - 2001
BIA Decisions for 2001 - 2002.
- New Guinea Native Fails to Convince BIA That Unclaimed Certified Mail Lacked Proper Notice (12/19/2002)
An alien may be charged with receipt of an NTA and hearing notice, where the notice is sent by certified mail but returned, marked “unclaimed.” 8 CFR §3.13 (2002) does not require that the NTA or hearing notice be sent to the alien or his or her attorney by regular mail vs. certified mail. In re M-D-, 23 I&N Dec. 540 (12/18/02) Int. Dec. 3485.
AILA Doc. No. 02121940. - Service of Notice on 7-Year-Old Fails to Meet 8 CFR Requirements, Rules BIA (12/5/2002)
Removal proceedings against a 7-year-old were properly terminated because service of the NTA failed to meet 8 CFR §103.5a(c)(2)(ii) requirements, as it was served only on a person identified as the child’s uncle, and no effort was made to serve the notice on the child’s parents in the U.S. In re Andino, 23 I&N Dec. 533 (BIA 12/4/02) Int. Dec. 3484.
AILA Doc. No. 02120542. - Misdemeanor Drug Possession Not Akin to Aggravated Felony, Rules BIA in Removal Case of Egyptian Man (11/1/2002)
In accordance with authoritative Second Circuit precedent, an individual who has been convicted twice of misdemeanor marijuana possession under New York State law has not been convicted of an aggravated felony under INA §101(a)(43)(B), 8 USC §101(a)(43)(B) (2000). In re Nabil Ahmed Elgendi, 23 I&N Dec. 515 (BIA 10/31/02) Int. Dec. 3482.
AILA Doc. No. 02110142. - BIA Vacates Earlier Decision to Grant Removal Relief to 12-Year-Old, Citing INS Burden Was Met (12/9/2002)
INS met its burden of establishing a minor respondent’s removability by clear, unequivocal, and convincing evidence. The minor was properly notified of her hearing through proper mailing of a Notice to Appear to the last address provided by her parent, with whom she was residing. In re Gomez-Gomez, 23 I&N Dec. 522 (BIA 12/4/02) Int. Dec. 3483.
AILA Doc. No. 02120945. - INS Official Discusses Information Sharing After 9/11 (10/8/2002)
10/1/02 statement by Joseph R. Greene, INS Assistant Commissioner for Investigations, before the U.S. Senate and House of Representatives on: Information Sharing After the Terrorist Attacks of September 11, 2001.
AILA Doc. No. 02100842. - BIA Dismisses Appeal of Removal Order Brought by Canadian Citizen Convicted of Assault (9/26/2002)
The offense of third-degree assault involving the intentional infliction of physical injury upon another, in violation of the Connecticut General Statutes, is a crime of violence under 18 USC §16(a) (2000) and is an aggravated felony under §101(a)(43)(F). In re Jacques Martin, 23 I&N Dec. 491 (BIA 9/26/02) Int. Dec. 3481.
AILA Doc. No. 02092640. - BIA Vacates Earlier Decision to Defer Removal of Nigerian Woman (9/25/2002)
A Nigerian convicted of a drug offense did not establish eligibility for deferral of removal under Article 3 of CAT due to failure to demonstrate that it is more likely than not that she will be tortured if she is deported to Nigeria. In re M-B-A-, 23 I&N Dec. 474 (BIA 9/24/02), Int. Dec. 3480.
AILA Doc. No. 02092531. - BIA Cancels Removal of Mother of 6, Holds IJ Erred in Contrary Finding (9/20/2002)
A single mother from Mexico established eligibility for cancellation of removal under INA §240A(b), 8 USC §1229b(b) (2002), because she demonstrated that her four USC children would suffer exceptional and extremely unusual hardship upon her removal to her native country. In re Recinas, et al., 23 I&N Dec. 467 (BIA 5/19/02) Int. Dec. 3479.
AILA Doc. No. 02092039. - BIA Updates List of Precedent Decisions (9/16/2002)
The Board of Immigration Appeals has updated its chart that lists, in chronological fashion, BIA and Attorney General precedent decisions, including links to those decisions.
AILA Doc. No. 02091671. - BIA Remands Case for Deficiency in IJ’s Factual Findings (9/13/2002)
Under new regulations effective 9/25/02, the BIA has limited fact-finding on appeal, heightening the need for IJs to include clear and complete findings of fact in their decisions. Matter of Vilanova-Gonzalez and Matter of Becerra-Miranda superseded. In re S-H-, et al. 23 I&N Dec. 462 (BIA 9/12/02) Int. Dec. 3478.
AILA Doc. No. 02091370. - BIA: Parent’s Lawful Residence can be Imputed to Minor to Establish Domicile - PDF Doument(158 KB - 6/11/2002)
The period of an alien’s residence in the United States after admission as a nonimmigrant may be considered in calculating the 7 years of continuous residence required to establish eligibility for cancellation of removal under INA §240A(a)(2). In re Eduardo Blancas-Lara, 23 I&N Dec. 458 (BIA 6/10/02) Int. Dec. 3477. AILA Doc. No. 02061143.
AILA Doc. No. 02061143. - BIA: Sexual Abuse of a Minor Meets Definition of Aggravated Felony (6/4/2002)
A misdemeanor offense of sexual abuse of a minor constitutes an aggravated felony under §101(a)(43)(A) of the Immigration and Nationality Act, 8 USC §1101(a)(43)(A) (2000). In re Anderson David Justin Small, 23 I&N Dec. 448 (BIA 6/4/02) Int. Dec. 3476
AILA Doc. No. 02060442. - BIA: No Continuous Physical Presence to Prevent Removal(85 KB - 5/29/2002)
For purposes of determining eligibility for cancellation of removal under INA §240A(b), continuous physical presence is deemed to end at the time an alien is compelled to depart the United States under threat of deportation or removal proceedings. In re Romalez-Alcaide, 23 I&N Dec. 423 (BIA 5/29/02) Int. Dec. 3475. AILA Doc. No. 06052940.
AILA Doc. No. 02052940. - BIA: Marijuana Misdemeanors Not Tantamount to Aggravated Felony (5/15/2002)
Determining whether an offense is a felony under 18 USC §924(c)(2) depends on the classification of the offense under the law of the convicting jurisdiction. Matter of Yanez, 23 I&N Dec. 390 (BIA 2002), followed. In re Santos-Lopez, 23 I&N Dec. 419 (BIA 5/14/02) Int. Dec. 3474.
AILA Doc. No. 02051540. - BIA Overrules K–V–D– in Class 4 Felony Drug Case(105 KB - 5/13/2002)
Determining whether a state drug offense constitutes a "drug trafficking crime" such that it may be an "aggravated felony" under the INA, shall be made referencing federal circuit case law and not any BIA-adopted standard. K-V-D- overruled. L-G- and Davis modified. In re Garcia, 23 I&N Dec. 390 (BIA 5/13/02) #3473. AILA Doc. No. 02051442.
AILA Doc. No. 02051442. - AG Reverses LPR Status for Woman Convicted of Killing Child (5/9/2002)
Violent criminals will not get discretionary waivers to permit adjustment to LPR status under INA §209(c) except in extraordinary cases—national security or foreign policy concerns, or a clear demonstration that denial will result in exceptional and extremely unusual hardship. In re Jean, 23 I&N Dec. 373 (AG 5/2/02) 3472.
AILA Doc. No. 02050942. - BIA Grants Unwed Mother of 2 Voluntary Departure (4/4/2002)
Under INA §240A(b), one must demonstrate that his or her removal would cause hardship to qualifying relatives that is substantially different from, or beyond, that which would normally be expected from the deportation of an alien with close family members in the U.S. In re Rivas, 23 I&N Dec. 319 (4/3/02) #3467
AILA Doc. No. 02040433. - Attorney General Issues Decision in Three Certified Cases(57 KB - 3/7/2002)
The Attorney General reversed three BIA decisions and held that drug trafficking offenses presumptively constitute particularly serious crimes under INA 241(b)(3)(B)(ii). In re Y-L-, 23 I&N Dec. 270 (AG 3/5/02) Int. Dec. 3464. AILA Doc. No. 02030734.
AILA Doc. No. 02030734. - Perjury Under California Statute Is Aggravated Felony, BIA Rules (10/17/2001)
Perjury conviction under Calif. Penal Code §118(a) constitutes conviction for aggravated felony under INA §101(a)(43)(S); alien also ruled ineligible for waiver of inadmissibility under INA §212(h). In re Martinez-Recinos, 23 I&N Dec. 175 (Int. Dec. 3456, 10/15/01)
AILA Doc. No. 01101701. - BIA Defers Removal of Iranian Man Under Article 3 of CAT (5/6/2002)
An Iranian Christian received deferral of removal under the CAT by establishing that it is more likely than not that he will be tortured if deported to Iran based on religion, ethnicity, duration of his residence in the U.S., and drug-related convictions. In re G-A-, 23 I&N Dec. 366 (BIA 5/2/02) Int. Dec. 3471.
AILA Doc. No. 02050640. - BIA Issues Policy Change on Untimely Asylum Motions Filed(25 KB - 4/10/2002)
Abstract: The BIA is withdrawing in 90 days from its policy of granting, on its own motion under 8 CFR §3.2(a), untimely motions to reopen asylum claims that are based solely on coercive population control policies. Matter of X-G-W-, Int. Dec. 3352 (1998) superseded. In re G-C-L-, 23 I&N Dec. 359 (BIA 4/10/02) Int. Dec. 3470. AILA Doc. No. 02041033.
AILA Doc. No. 02041033. - BIA Denies Asylum to Admitted Member of Mujahedin(18 KB - 4/5/2002)
USA PATRIOT ACT §412 does not change the standard employed for determining asylum or withholding of removal—that there is reasonable ground to believe that an alien is engaged in, or is likely to engage in, terrorist activity or is a danger to the U.S. In re U–H–, 23 I&N Dec. 355 (BIA 4/5/02) Int. Dec. 3469. AILA Doc. No. 02040533.
AILA Doc. No. 02040533. - BIA Overrules Precedents; DUI Not a Crime of Violence(67 KB - 4/4/2002)
Driving while DUI in violation of Massachusetts law is not a felony involving a substantial risk that physical force against a person or property of another may be used while committing the offense; therefore, it is not a crime of violence. Puente and Magallanes overruled. In re Ramos, 23 I&N Dec. 336 (4/4/02) #3468. AILA Doc. No. 02040434.
AILA Doc. No. 02040434. - BIA Affirms Removal of Haitian Man, Dismisses CAT Claim(92 KB - 3/25/2002)
An alien seeking protection under Article 3 of the Convention Against Torture must establish that it is more likely than not that he will be tortured in the country of removal. Evidence of torture must consist of five elements set forth at 8 CFR § 208.18(a). In re J-E-, 23 I&N Dec. 291 (BIA 3/22/02) Int. Dec. 3466
AILA Doc. No. 02032532. - BIA: Minor is Excused for Failing to File for Asylum(18 KB - 3/12/2002)
An unaccompanied minor who was in INS custody pending removal proceedings during the 1-year period following his arrival in the U.S. has established extraordinary circumstances excusing his failure to file for asylum within 1 year after the date of his arrival. (In re Y-C-, 23 I&N Dec. 286 (BIA 3/11/02) Int. Dec. 3465). AILA Doc. No. 02031271.
AILA Doc. No. 02031271. - BIA Revisits Removal Due to Marriage, but with Conditions(60 KB - 3/7/2002)
A properly filed motion to reopen for adjustment of status based on a marriage entered into after commencement of proceedings may be granted in the exercise of discretion, notwithstanding the pendency of a visa petition filed on the alien’s behalf. (In re Velarde-Pacheco, 23 I&N Dec. 253 (BIA 3/6/02) Int. Dec. 3463). AILA Doc. No. 02030733
AILA Doc. No. 02030733. - BIA Holds Alien Removable for Guilty Plea on Drug Felony(107 KB - 2/19/2002)
An alien whose adjudication of guilt was deferred under the Texas Code of Criminal Procedure following her plea of guilty to possession of a controlled substance is considered convicted of the offense. Matter of Roldan, Int. Dec. 3377 (BIA 1999), reaffirmed. In re Salazar-Regino, 23 I&N Dec. 223 (2/14/02) #3462. AILA Doc. No. 02021939.
AILA Doc. No. 02021939. - In re Vasquez-Muniz, 23 I&N Dec. 207 (BIA 1/15/02) #3461(48 KB - 1/16/2002)
Possession of a firearm by a felon in violation of Calif. Penal Code §12021(a)(1) is an aggravated felony under INA §101(a)(43)(E)(ii) because it is 'described in' 18 USC §922(g)(1) (1994), even though it lacks the jurisdictional element of the federal statute. AILA Doc. No. 02011633.
AILA Doc. No. 02011633. - BIA Upholds Asylum Grant to Nicaraguan 'Street Child'(299 KB - 12/7/2001)
In nonprecedent decision, BIA dismisses INS appeal of IJ's grant of asylum based on social group (abandoned street children in Nicaragua) and imputed political opinion (parents' repudiation of Contra-guerrilla organization). (In re B-F-O-, No. A78 677 043, 11/6/01). AILA Doc. No. 01120731
AILA Doc. No. 01120731. - No Threshold Test in Cancellation of Removal, En Banc BIA Rules (10/30/2001)
Granting of relief from removal under INA §240A(a) requires simple 'totality of evidence' balancing; IJ should not have required a showing of 'unusual or outstanding equities.' In re Sotelo-Sotelo, 23 I&N Dec. 201 (Int. Dec. 3460, 10/25/01)
AILA Doc. No. 01103031. - Unpublished BIA Decisions on St. Cyr and Accrual of Lawful Unrelinquished Domicile(1172 KB - 10/25/2001)
Unpublished BIA decisions on St. Cyr and Accrual of Lawful Unrelinquished Domicile referred to in AILF Practice Advisory dated October 25, 2001
AILA Doc. No. 01102534. - BIA: Lack of Receipt of NTA Precludes In Absentia Order of Removal (10/25/2001)
En banc BIA not persuaded by alien’s failure to comply with her affirmative obligation to provide current address. Two Board Members dissent. In re G-Y-R-, 23 I&N Dec. 181 (Int. Dec. 3458, 10/19/01)
AILA Doc. No. 01102433. - Motion to Reopen Deemed Abandoned Due to Alien's Departure (10/22/2001)
En banc BIA finds itself without jurisdiction over previously granted motion to reopen, which, it rules, was withdrawn pursuant to 8 CFR §3.2(d) by alien's departure. In re Crammond, 23 I&N Dec. 179 (Int. Dec 3457, 10/16/01) (vacating 23 I&N Dec 9).
AILA Doc. No. 01102231. - Foreign Drug Conviction Bars 245 Applicant (8/30/2001)
The Board of Immigration Appeals (BIA) in In re Dillingham, A28-992-806 (BIA August 20, 1997) held that the expungement of a respondent’s foreign drug-related conviction pursuant to a foreign rehabilitation statute does not prevent a finding of inadmissibility pursuant to section
212(a) (2) (A) (i) (II) of the INA. Full text of case attached. - N-J-B- Vacated (8/30/2001)
Attorney General Vacates Matter of N-J-B- and Announces Innitiative on Suspension of Deportation. - In re Rodriguez-Tejedor, 23 I&N Dec. 153 (7/24/01) (7/26/2001)
In Int. Dec. 3454, the automatic citizenship provisions of INA §320 as amended by the CCA of 2000, are not retroactive, and do not apply to someone who resided in the U.S. with his USC parents or adoptive parents as an LPR while under 18, but who was over 18 on the CCA effective date.
AILA Doc. No. 01072601. - In re Olivares-Martinez, 23 I&N Dec.148, BIA 7/3/01 (7/3/2001)
In Int. Dec. 3453, under U.S. v. Chapa-Garza and U.S. v. Hernandez-Avalos, a Texas conviction for felony DWI is not classifiable as a crime of violence conviction under 18 USC §16(b) (1994) for purposes of removability in cases arising in the Fifth Circuit. Matter of Puente, Int. Dec. 3412, will not be applied.
AILA Doc. No. 01070334. - Finnair Flight AY103, 23 I&N Dec. 140 (BIA 6/26/01) (6/27/2001)
In Int. Dec. 3452, a carrier is subject to a fine under INA §273(a) for bringing an alien passenger to the United States without a valid nonimmigrant visa even though the passenger was subsequently granted a waiver of the nonimmigrant documentary requirements pursuant to 8 CFR §212.1(g) (1997).
AILA Doc. No. 01062731. - In re Rojas, 23 I&N Dec. 117 (BIA 5/18/01) I.D. 3451 (5/23/2001)
A criminal alien who is released from criminal custody after the expiration of the Transition Period Custody Rules is subject to mandatory detention pursuant to §236(c) of the INA, 8 USC §1226(c) (Supp. V 1999), even if the alien is not immediately taken into custody by the INS when released from incarceration.
AILA Doc. No. 01052304. - In re Artigas, 23 I&N Dec. 99 (BIA 5/11/01) #3450 (5/14/2001)
An immigration judge has jurisdiction to adjudicate an application for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, when the respondent is charged as an arriving alien without a valid visa or entry document in removal proceedings. (See PDF)
AILA Doc. No. 01051406. - In re Torres-Varela, 23 I&N Dec. 78 (BIA 5/9/01) Int. Dec. 3449 (5/10/2001)
Under Arizona law, the offense of aggravated driving under the influence (DUI) with two or more prior DUI convictions is not a crime involving moral turpitude. Matter of Lopez-Meza, Int. Dec. 3423 (BIA 1999) distinguished. (See PDF)
AILA Doc. No. 01051003. - In re Patino, 23 I&N Dec. 74 (BIA 5/9/01) Int. Dec. 3448 (5/10/2001)
A party wishing to challenge the validity of an appeal waiver may file either a motion to reconsider with the immigration judge or an appeal directly with the BIA. (See PDF)
AILA Doc. No. 01051002. - In re Kao, In re Lin, 23 I&N Dec. 45 (BIA 5/4/01) (5/8/2001)
In Int. Dec. 3446, when evaluating an application for suspension of deportation, the hardship to the applicant’s U.S. citizen child must be given careful consideration, as the applicant’s eligibility for relief may be established by demonstrating that deportation would result in extreme hardship to the child. (See PDF)
AILA Doc. No. 01050805. - In re Aguinaga, 23 I&N Dec. 56 (BIA 5/4/01) (3447) (5/8/2001)
To establish exceptional and extremely unusual hardship, an applicant for cancellation of removal must demonstrate that his or her spouse, parent, or child would suffer a hardship substantially beyond what would ordinarily be expected from the alien’s deportation, but need not show that it would be unconscionable. (See PDF)
AILA Doc. No. 01050804. - In re Herrera, 23 I&N Dec. 43 (BIA 2001), Int. Dec. 3445 (4/13/2001)
Respondent’s motion for a stay of deportation, pending his motion to reopen and reconsider, is granted in light of U.S. v. Chapa-Garza, which held that a conviction for DWI in violation of §49.09 of the Texas Penal Code is not a conviction for a crime of violence under INA
§101(a)(43)(F).
AILA Doc. No. 01041372. - In re Northwest Airlines NW1821, 23 I&N Dec. 38 (2001) (4/2/2001)
In Int. Dec. 3444, a carrier is subject to fine under §231(b) of the INA, 8 USC §1221(b) (Supp. IV 1998), when it fails to file a properly completed Form I-94T (Arrival-Departure Record (Transit Without Visa)) for an alien who is a “transit without visa” passenger not departing directly on the same flight. (see PDF)
AILA Doc. No. 01040204. - In re Crammond, 23 I&N Dec. 9 (BIA 2001) (Int. Dec. 3443) (3/22/01) (3/28/2001)
A conviction for “murder, rape, or sexual abuse of a minor” must be for a felony offense in order for the crime to be an aggravated felony under INA §101(a)(43)(A). In determining whether a state conviction is for a felony offense for immigration purposes, the BIA applies the federal definition of a felony set forth at 18 USC §3559(a)(5) (1994). (See PDF)
AILA Doc. No. 01032801. - In re Goolcharan, 23 I&N Dec. 5 (BIA 2001), Decided 2/1/01 (2/6/2001)
The regulatory deadline for filing a motion to reopen or motion to reconsider before the IJ is determined by the date on which the IJ entered a final administrative order, and the regulatory deadline is not affected by subsequent actions taken by the INS in the course of executing the IJ’s order (see PDF file).
AILA Doc. No. 01020609. - Matter of R-A- Vacated(18 KB - 1/22/2001)
The Attorney General, on her last day in office, vacated Matter of R-A- and remanded it to the BIA to stay reconsideration until after the 12/7/00 regulations are finalized, at which time the decision is to be reconsidered in light of that rule. AILA Doc. No. 01012215
AILA Doc. No. 01012215. - In re Devison-Charles, Int. Dec. 3435 (9/12/00) (1/19/2001)
This opinion has been reissued to include a decision on a motion to reconsider filed by the INS. Previous Holding: 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.
AILA Doc. No. 01011901.
