Board of Immigration Appeal BIA Published Cases


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CALVILLO GARCIA, 26 I&N Dec. 697 (BIA 2015) ID 3855 (PDF)

A term of confinement in a substance abuse treatment facility imposed as a condition of probation pursuant to article 42.12, section 14(a) of the Texas Code of Criminal Procedure constitutes a “term of confinement” under section 101(a)(48)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(B) (2012), for purposes of determining if an offense is a crime of violence under section 101(a)(43)(F) of the Act.


CASTRO-LOPEZ, 26 I&N Dec. 693 (BIA 2015) ID 3854 (PDF)

The 10 years of continuous physical presence required by 8 C.F.R. § 1240.66(c)(2) (2015) for aliens seeking special rule cancellation of removal under section 203 of the Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, tit. II, 111 Stat. 2160, 2193, 2196 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997), should be measured from the alien’s most recently incurred ground of removal, at least where that ground is among those listed in 8 C.F.R. § 1240.66(c)(1).


Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015) ID 3853 (PDF)

(1) The requirements of the Federal Rules of Evidence with respect to the admission of expert testimony are inapposite to a respondent’s testimony regarding events of which he or she has personal knowledge.

(2) Conduct by an Immigration Judge that can be perceived as bullying or hostile is never appropriate, particularly in cases involving minor respondents, and may result in remand to a different Immigration Judge.


CHAIREZ and SAMA, 26 I&N Dec. 686 (A.G. 2015) ID 3852 (PDF)

The Attorney General referred the decisions of the Board of Immigration Appeals to herself for review of an issue relating to the application of Descamps v. United States, 133 S. Ct. 2276 (2013), ordering that those cases be stayed and not be regarded as precedential or binding as to the issue under review during the pendency of her review.


J-S-S-, 26 I&N Dec. 679 (BIA 2015) ID 3851 (PDF)

(1) Neither party bears a formal burden of proof in immigration proceedings to establish whether or not the respondent is mentally competent, but where indicia of incompetency are identified, the Immigration Judge should determine if a preponderance of the evidence establishes that the respondent is competent.

(2) An Immigration Judge’s finding of competency is a finding of fact that the Board of Immigration Appeals reviews to determine if it is clearly erroneous.


GARCIA-RAMIREZ, 26 I&N Dec. 674 (BIA 2015)  ID 3850 (PDF)

(1) Where an alien has the right to a hearing before an Immigration Judge, a voluntary departure or return does not break the alien’s continuous physical presence for purposes of cancellation of removal under section 240A(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(A) (2012), in the absence of evidence that he or she was informed of and waived the right to such a hearing, regardless of whether the encounter occurred at or near the border. Matter of Avilez, 23 I&N Dec. 799 (BIA 2005), clarified.

(2) Evidence that an alien who had the right to a hearing before an Immigration Judge was fingerprinted and/or photographed before being allowed to voluntarily depart is not enough, in itself, to demonstrate a waiver of the right to a hearing or to show a process of sufficient formality to break continuous physical presence. Matter of Castrejon-Colino, 26 I&N Dec. 667 (BIA 2015), followed.


CASTREJON-COLINO, 26 I&N Dec. 667 (BIA 2015)  ID 3849 (PDF)

(1) Where an alien has the right to a hearing before an Immigration Judge, a voluntary departure or return does not break the alien’s continuous physical presence for purposes of cancellation of removal under section 240A(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(A) (2012), in the absence of evidence that he or she was informed of and waived the right to such a hearing. Matter of Avilez, 23 I&N Dec. 799 (BIA 2005), clarified.

(2) Evidence that an alien who had the right to a hearing before an Immigration Judge was fingerprinted and/or photographed before being allowed to voluntarily depart is not enough, in itself, to demonstrate a waiver of the right to a hearing or to show a process of sufficient formality to break continuous physical presence.


R-K-K-, 26 I&N Dec. 658 (BIA 2015)  ID 3848 (PDF)

(1) Significant similarities between statements submitted by applicants in different proceedings can be considered by an Immigration Judge in making an adverse credibility determination if certain procedural steps are undertaken to preserve the fairness of the proceedings.

(2) When relying on inter-proceeding similarities, the Immigration Judge should give the applicant meaningful notice of the similarities and a reasonable opportunity to explain them prior to making a credibility determination that is based on the totality of the circumstances.


M-A-F-, 26 I&N Dec. 651 (BIA 2015)  ID 3847 (PDF)

(1) Where an applicant has filed an asylum application before the May 11, 2005, effective date of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 302, and, on or after that date, submitted a subsequent application that is properly viewed as a new application, the later filing date controls for purposes of determining the applicability of section 208(b)(1)(B)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(B)(iii) (2012), to credibility determinations.

(2) A subsequent asylum application is properly viewed as a new application if it presents a previously unraised basis for relief or is predicated on a new or substantially different factual basis.

(3) Where an alien has filed more than one application for asylum and the subsequent one is deemed to be a new application, the filing date of the later application controls for purposes of determining whether the 1-year statutory time bar applies under section 208(a)(2)(B) of the Act.


D-M-C-P-, 26 I&N Dec. 644 (BIA 2015)  ID 3846 (PDF)

(1) Neither an Immigration Judge nor the Board of Immigration Appeals has jurisdiction to consider whether asylum-only proceedings were improvidently instituted pursuant to a referral under the Visa Waiver Program.

(2) It is improper to deem an application for relief abandoned based on the applicant’s failure to comply with the biometrics filing requirement where the record does not reflect that the applicant received notification advisories concerning that requirement, was given a deadline for submitting the biometrics, and was advised of the consequences of his or her failure to comply.


ORDAZ, 26 I&N Dec. 637 (BIA 2015)  ID 3845 (PDF)

A notice to appear that was served on an alien but never resulted in the commencement of removal proceedings does not have “stop-time” effect for purposes of establishing eligibility for cancellation of removal pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1) (2012).


R. HUANG, 26 I&N Dec. 627 (BIA 2015)  ID 3844 (PDF)

The beneficiary of a visa petition who was adopted pursuant to a State court order that was entered when the beneficiary was more than 16 years old, but with an effective date prior to his or her 16th birthday, may qualify as an adopted child under section 101(b)(1)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(E)(i)(2012), so long as the adoption petition was filed before the beneficiary’s 16th birthday and the State in which the adoption was entered expressly permits an adoption decree to be dated retroactively. Matter of Cariaga, 15 I&N Dec. 716 (BIA 1976), and Matter of Drigo, 18 I&N Dec. 223 (BIA 1982), modified.


P. SINGH, 26 I&N Dec. 623 (BIA 2015)  ID 3843 (PDF)

An attorney who admitted to engaging in conduct prejudicial to the administration of justice by enlisting his legal assistant to impersonate him during multiple telephonic appearances before Immigration Judges was appropriately suspended from practice before the Immigration Courts, the Board of Immigration Appeals, and the Department of Homeland Security for a period of 16 months and prohibited from appearing telephonically in the Immigration Courts for 7 years.


PENA, 26 I&N Dec. 613 (BIA 2015) ID 3842 (PDF)

An alien returning to the United States who has been granted lawful permanent resident status cannot be regarded as seeking an admission and may not be charged with inadmissibility under section 212(a) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a) (2012), if he or she does not fall within any of the exceptions in section 101(a)(13)(C) of the Act, 8 U.S.C. § 1101(a)(13)(C) (2012). Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003), distinguished.


J-R-R-A-, 26 I&N Dec. 609 (BIA 2015)   ID 3841 (PDF)

If an applicant for asylum has competency issues that affect the reliability of his testimony, the Immigration Judge should, as a safeguard, generally accept his fear of harm as subjectively genuine based on the applicant’s perception of events.


FAJARDO ESPINOZA , 26 I&N Dec. 603 (BIA 2015) ID 3840 (PDF)

A grant of Family Unity Program benefits does not constitute an “admission” to the United States under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A) (2012), for purposes of establishing that an alien has accrued the requisite 7 years of continuous residence after having been “admitted in any status” to be eligible for cancellation of removal under section 240A(a)(2) of the Act, 8 U.S.C. § 1229b(a)(2) (2012). Matter of Reza, 25 I&N Dec. 296 (BIA 2010), reaffirmed. Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006), not followed.


FRANCISCO-ALONZO, 26 I&N Dec. 594 (BIA 2015) ID 3839 (PDF)

In determining whether a conviction is for an aggravated felony crime of violence under 18 U.S.C. § 16(b) (2012), the proper inquiry is whether the conduct encompassed by the elements of the offense presents a substantial risk that physical force may be used in the course of committing the offense in the “ordinary case.”


Z-Z-O-, 26 I&N Dec. 586 (BIA 2015) ID 3838 (PDF)

(1) An Immigration Judge’s predictive findings of what may or may not occur in the future are findings of fact, which are subject to a clearly erroneous standard of review. Matter of V-K-, 24 I&N Dec. 500 (BIA 2008), and Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008), overruled.

(2) Whether an asylum applicant has an objectively reasonable fear of persecution based on the events that the Immigration Judge found may occur upon the applicant’s return to the country of removal is a legal determination that is subject to de novo review.


AGOUR, 26 I&N Dec. 566 (BIA 2015) ID 3837 (PDF)

Adjustment of status constitutes an “admission” for purposes of determining an alien’s eligibility to apply for a waiver under section 237(a)(1)(H) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(H) (2012). Matter of Connelly, 19 I&N Dec. 156 (BIA 1984), distinguished.


J-H-J-, 26 I&N Dec. 563 (BIA 2015)  ID 3836 (PDF)

An alien who adjusted status in the United States, and who has not entered as a lawful permanent resident, is not barred from establishing eligibility for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2012), as a result of an aggravated felony conviction. Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012), and Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), withdrawn.


FITZPATRICK, 26 I&N Dec. 559 (BIA 2015) ID 3835 (PDF)

An alien who has voted in an election involving candidates for Federal office in violation of 18 U.S.C. § 611(a) (2012) is removable under section 237(a)(6)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(6)(A) (2012), regardless of whether the alien knew that he or she was committing an unlawful act by voting.


 MONTIEL, 26 I&N Dec. 555 (BIA 2015) ID 3834 (PDF)

Removal proceedings may be delayed, where warranted, pending the adjudication of a direct appeal of a criminal conviction. Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), followed.


SILVA-TREVINO, 26 I&N Dec. 550 (A.G. 2015) ID 3833 (PDF)

The Attorney General vacated the opinion in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).


SIMEIO SOLUTIONS, LLC, 26 I&N Dec. 542 (AAO 2015) ID 3832 (PDF)

(1) A change in the place of employment of a beneficiary to a geographical area requiring a corresponding Labor Condition Application for Nonimmigrant Workers (“LCA”) be certified to the U.S. Department of Homeland Security with respect to that beneficiary may affect eligibility for H-1B status; it is therefore a material change for purposes of 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).

(2) When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H-1B petition with the corresponding LCA.


CHRISTO’S, INC., 26 I&N Dec. 537 (AAO 2015) ID 3831 (PDF)

(1) An alien who submits false documents representing a nonexistent or fictitious marriage, but who never either entered into or attempted or conspired to enter into a marriage, may intend to evade the immigration laws but is not, by such act alone, considered to have “entered into” or “attempted or conspired to enter into” a marriage for purposes of section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (2012). Matter of Concepcion, 16 I&N Dec. 10 (BIA 1976), followed.

(2) Misrepresentations relating to a nonexistent marriage may render the beneficiary inadmissible under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2012), when the Director adjudicates the application for adjustment of status.


LEACHENG INTERNATIONAL, INC., 26 I&N Dec. 532 (AAO 2015) ID 3830 (PDF)

(1) The definition of “doing business” at 8 C.F.R. § 204.5(j)(2) (2014) contains no requirement that a petitioner for a multinational manager or executive must provide goods and or services to an unaffiliated third party.

(2) A petitioner may establish that it is “doing business” by demonstrating that it is providing goods and/or services in a regular, systematic, and continuous manner to related companies within its multinational organization.


CERDA REYES, 26 I&N Dec. 528 (BIA 2015) ID 3829 (PDF)

The rules for applying for a bond redetermination at 8 C.F.R. § 1003.19(c) (2014) relate to venue, not jurisdiction.


L-A-C-, 26 I&N Dec. 516 (BIA 2015) ID 3828 (PDF)

(1) Where an Immigration Judge finds that an applicant for asylum or withholding of removal has not provided reasonably available corroborating evidence to establish his claim, the Immigration Judge should first consider the applicant’s explanations for the absence of such evidence and, if a continuance is requested, determine whether there is good cause to continue the proceedings for the applicant to obtain the evidence.

(2) Although an Immigration Judge should consider an applicant’s explanation for the absence of corroborating evidence, section 208(b)(1)(B)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(B)(ii) (2012), does not require the Immigration Judge to identify the specific evidence necessary to meet the applicant’s burden of proof and to provide an automatic continuance for the applicant to obtain that evidence prior to rendering a decision on the application.


VIDES CASANOVA, 26 I&N Dec. 494 (BIA 2015)  ID 3827 (PDF)

The respondent is removable under section 237(a)(4)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(4)(D) (2012), where the totality of the record supported the conclusion that, through his “command responsibility” in his role as Director of the Salvadoran National Guard and as Minister of Defense of El Salvador, he participated in the commission of particular acts of torture and extrajudicial killing of civilians in El Salvador, in that they took place while he was in command, he was aware of these abuses during or after the fact, and through both his personal interference with investigations and his inaction, he did not hold the perpetrators accountable.


CROSS, 26 I&N Dec. 485 (BIA 2015)  ID 3826 (PDF)

A person born out of wedlock may qualify as a legitimated “child” of his or her biological parents under section 101(c)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1101(c)(1) (2012), for purposes of citizenship if he or she was born in a country or State that has eliminated all legal distinctions between children based on the marital status of their parents or had a residence or domicile in such a country or State (including a State within the United States), if otherwise eligible. Matter of Hines, 24 I&N Dec. 544 (BIA 2008), and Matter of Rowe, 23 I&N Dec. 962 (BIA 2006), overruled in part. Matter of Clahar, 18 I&N Dec. 1 (BIA 1981), and Matter of Goorahoo, 20 I&N Dec. 782 (BIA 1994), reaffirmed.


CHAIREZ, 26 I&N Dec. 478 (BIA 2015)  ID 3825 (PDF)

(1) With respect to aggravated felony convictions, Immigration Judges must follow the law of the circuit court of appeals in whose jurisdiction they sit in evaluating issues of divisibility, so the interpretation of Descamps v. United States, 133 S. Ct. 2276 (2013), reflected in Matter of Chairez, 26 I&N Dec. 349 (BIA 2014), applies only insofar as there is no controlling authority to the contrary in the relevant circuit.

(2) Because the United States Court of Appeals for the Tenth Circuit has taken an approach to divisibility different from that adopted inMatter of Chairez, the law of the Tenth Circuit must be followed in that circuit.


ESQUIVEL-QUINTANA, 26 I&N Dec. 469 (BIA 2015)

ID 3824 (PDF)

(1) For a statutory rape offense that may include a 16- or 17-year-old victim to be categorically “sexual abuse of a minor” under section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2012), the statute must require a meaningful age differential between the victim and the perpetrator. Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999), and Matter of V-F-D-, 23 I&N Dec. 859 (BIA 2006), clarified.

(2) The offense of unlawful intercourse with a minor in violation of section 261.5(c) of the California Penal Code, which requires that the minor victim be “more than three years younger” than the perpetrator, categorically constitutes “sexual abuse of a minor” and is therefore an aggravated felony under section 101(a)(43)(A) of the Act.


O. A. HERNANDEZ, 26 I&N Dec. 464 (BIA 2015)

ID 3823 (PDF)

The offense of “deadly conduct” in violation of section 22.05(a) of the Texas Penal Code, which punishes a person who “recklessly engages in conduct that places another in imminent danger of serious bodily injury,” is categorically a crime involving moral turpitude.


VELASQUEZ-CRUZ, 26 I&N Dec. 458 (BIA 2014)

ID 3822 (PDF)

An alien’s departure from the United States following a criminal conviction for illegal entry under section 275(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1325(a)(1) (2012), interrupts the 10-year period of continuous physical presence required to establish eligibility for cancellation of removal under section 240A(b)(1) of the Act, 8 U.S.C. § 1229b(b)(1) (2012).


UNITED FARM WORKERS FOUNDATION, 26 I&N Dec. 454 (BIA 2014)

ID 3821 (PDF)

A recognized organization need only apply for its representative’s accreditation at one location, and if approved, that representative may thereafter practice at any branch location of the organization that has been recognized by the Board of Immigration Appeals. Matter of EAC, Inc., 24 I&N Dec. 563 (BIA 2008), modified.


AYUDA, 26 I&N Dec. 449 (BIA 2014)

ID 3820 (PDF)

When assessing an organization’s application for recognition, the Board of Immigration Appeals makes an individualized determination whether the applicant’s fees qualify as “nominal charges” and whether its fee structure is true to the goal of providing competent low-cost legal services. Matter of American Paralegal Academy, Inc., 19 I&N Dec. 386 (BIA 1986), clarified.


ST. FRANCIS CABRINI IMMIGRATION LAW CENTER, 26 I&N Dec. 445 (BIA 2014)

ID 3819 (PDF)

Where an organization is physically colocated or financially associated with, or otherwise attached to, a for-profit venture, the Board of Immigration Appeals will not approve an application for recognition unless it is confident that the organization will not be influenced, either explicitly or implicitly, by the pecuniary interests of the commercial affiliate.


BETT, 26 I&N Dec. 437 (BIA 2014)

ID 3818 (PDF)

A Form I-9 (Employment Eligibility Verification) is admissible in immigration proceedings to support charges of removability against an alien and to determine his or her eligibility for relief from removal.


MUNROE, 26 I&N Dec. 428 (BIA 2014)

ID 3817 (PDF)

For purposes of establishing an alien’s eligibility for a waiver under section 216(c)(4)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1186a(c)(4)(A) (2012), the relevant period for determining whether an alien’s removal would result in extreme hardship is the 2-year period for which the alien was admitted as a conditional permanent resident.


PINA-GALINDO, 26 I&N Dec. 423 (BIA 2014)

ID 3816 (PDF)

An alien is ineligible for cancellation of removal under section 240A(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(C) (2012), if he or she falls within the scope of section 212(a)(2)(B) of the Act, 8 U.S.C. § 1182(a)(2)(B) (2012), as having been convicted of two or more offenses for which the aggregate sentences imposed were 5 years or more.


FERREIRA, 26 I&N Dec. 415 (BIA 2014)

ID 3815 (PDF)

Where a State statute on its face covers a controlled substance not included in the Federal controlled substances schedules, there must be a realistic probability that the State would prosecute conduct under the statute that falls outside the generic definition of the removable offense to defeat a charge of removability under the categorical approach.


DOMINGUEZ-RODRIGUEZ, 26 I&N Dec. 408 (BIA 2014)

ID 3814 (PDF)

For purposes of section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2012), the phrase “a single offense involving possession for one’s own use of thirty grams or less of marijuana” calls for a circumstance-specific inquiry into the character of the alien’s unlawful conduct on a single occasion, not a categorical inquiry into the elements of a single statutory crime. Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), distinguished. Matter of Davey, 26 I&N Dec. 37 (BIA 2012), reaffirmed.


PAEK, 26 I&N Dec. 403 (BIA 2014)

ID 3813 (PDF)

An alien who was admitted to the United States at a port of entry as a conditional permanent resident pursuant to section 216(a) of the Immigration and Nationality Act, 8 U.S.C. § 1186a(a) (2012), is an alien “lawfully admitted for permanent residence” who is barred from establishing eligibility for a waiver of inadmissibility under section 212(h) of the Act, 8 U.S.C. § 1182(h) (2012), if he or she was subsequently convicted of an aggravated felony.


HERNANDEZ, 26 I&N Dec. 397 (BIA 2014)

ID 3812 (PDF)

Malicious vandalism in violation of section 594(a) of the California Penal Code with a gang enhancement under section 186.22(d) of the California Penal Code, which requires that the underlying offense be committed for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members, is categorically a crime involving moral turpitude.


A-R-C-G-, 26 I&N Dec. 388 (BIA 2014)

ID 3811 (PDF)

Depending on the facts and evidence in an individual case, “married women in Guatemala who are unable to leave their relationship” can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal under sections 208(a) and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(a) and 1231(b)(3) (2012).


C-C-I-, 26 I&N Dec. 375 (BIA 2014)

ID 3810 (PDF)

(1) Reopening of removal proceedings for a de novo hearing to consider termination of an alien’s deferral of removal pursuant to 8 C.F.R. § 1208.17(d)(1) (2014), is warranted where the Government presents evidence that was not considered at the previous hearing if it is relevant to the possibility that the alien will be tortured in the country to which removal has been deferred.

(2) The doctrine of collateral estoppel does not prevent an Immigration Judge from reevaluating an alien’s credibility in light of additional evidence presented at a hearing under 8 C.F.R. § 1208.17(d)(3).


L-G-H-, 26 I&N Dec. 365 (BIA 2014)

ID 3809 (PDF)

Sale of a controlled substance in violation of section 893.13(1)(a)(1) of the Florida Statutes, which lacks a mens rea element with respect to the illicit nature of the substance but requires knowledge of its presence and includes an affirmative defense for ignorance of its unlawful nature, is an “illicit trafficking” aggravated felony under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2012).


M-L-M-A-, 26 I&N Dec. 360 (BIA 2014)

ID 3808 (PDF)

(1) Because an application for special rule cancellation of removal under section 240A(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(2) (2006), is a continuing one, false testimony given by the respondent more than 3 years prior to the entry of a final administrative order should not be considered in determining whether she is barred from establishing good moral character under section 101(f)(6) of the Act, 8 U.S.C. § 1101(f)(6) (2006). Matter of Garcia, 24 I&N Dec. 179 (BIA 2007), and Matter of Ortega-Cabrera, 23 I&N Dec. 793 (BIA 2005), followed.

(2) Although the respondent was divorced from her abusive husband and subsequently had a long-term relationship with another man, she had not previously been granted special rule cancellation of removal based on her abusive marriage and had significant equities that merited a favorable exercise of discretion. Matter of A-M-, 25 I&N Dec. 66 (BIA 2009), distinguished.


CHAIREZ, 26 I&N Dec. 349 (BIA 2014)

ID 3807 (PDF)

(1) The categorical approach, which requires a focus on the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction, is employed to determine whether the respondent’s conviction for felony discharge of a firearm under section 76-10-508.1 of the Utah Code is for a crime of violence aggravated felony or a firearms offense under the Immigration and Nationality Act. Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), followed.

(2) The Department of Homeland Security did not meet its burden of establishing the respondent’s removability as an alien convicted of an aggravated felony where it did not show that section 76-10-508.1 of the Utah Code was divisible with respect to the mens rea necessary to constitute a crime of violence. Descamps v. United States, 133 S. Ct. 2276 (2013), followed. Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012), withdrawn.

(3) Where the respondent did not demonstrate that he or anyone else was successfully prosecuted for discharging an “antique firearm” under section 76-10-508.1 of the Utah Code, which contains no exception for “antique firearms” as defined by 18 U.S.C. § 921(a)(16) (2012), the statute was not shown to be categorically overbroad relative to section 237(a)(2)(C) of the Act, 8 U.S.C. § 1227(a)(2)(C) (2012). Matter of Mendez-Orellana, 25 I&N Dec. 254 (BIA 2010), clarified.


G-G-S-, 26 I&N Dec. 339 (BIA 2014)

ID 3806 (PDF)

An alien’s mental health as a factor in a criminal act falls within the province of the criminal courts and is not considered in assessing whether the alien was convicted of a “particularly serious crime” for immigration purposes.


P-S-H-, 26 I&N Dec. 329 (BIA 2014)

ID 3805 (PDF)

To terminate a grant of asylum pursuant to 8 C.F.R. § 1208.24 (2013), the Department of Homeland Security must establish, by a preponderance of the evidence, that (1) there was fraud in the alien’s asylum application and (2) the fraud was such that the alien was not eligible for asylum at the time it was granted; however, proof that the alien knew of the fraud in the application is not required in order to satisfy the first criterion. Matter of A-S-J-, 25 I&N Dec. 893 (BIA 2012), clarified.


DUARTE-LUNA and LUNA, 26 I&N Dec. 325 (BIA 2014)

ID 3804 (PDF)

A parent’s continuous physical presence and continuous residence in the United States cannot be imputed to a child for purposes of establishing the child’s eligibility for Temporary Protected Status.


E-F-H-L-, 26 I&N Dec. 319 (BIA 2014)

ID 3803 (PDF)

In the ordinary course of removal proceedings, an applicant for asylum or for withholding or deferral of removal is entitled to a hearing on the merits of those applications, including an opportunity to provide oral testimony and other evidence, without first having to establish prima facie eligibility for the requested relief. Matter of Fefe, 20 I&N Dec. 116 (BIA 1989), followed.


JACKSON, 26 I&N Dec. 314 (BIA 2014)

ID 3802 (PDF)

Section 402(a)(2) of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, 622, which bars the approval of a family-based visa petition filed by a petitioner who has been convicted of a “specified offense against a minor” and has not shown that he poses “no risk” to the beneficiary, does not have an impermissible retroactive effect when applied to convictions that occurred before its enactment.


INTROCASO, 26 I&N Dec. 304 (BIA 2014)

ID 3801 (PDF)

(1) In a visa petition case involving the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, the petitioner bears the burden of proving that he has not been convicted of a “specified offense against a minor.”

(2) In assessing whether a petitioner has been convicted of a “specified offense against a minor,” adjudicators may apply the “circumstance-specific” approach, which permits an inquiry into the facts and conduct underlying the conviction to determine if it is for a disqualifying offense.


ACEIJAS-QUIROZ, 26 I&N Dec. 294 (BIA 2014)

ID 3800 (PDF)

In adjudicating cases involving the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, the Board of Immigration Appeals lacks jurisdiction to review a “no risk” determination by the United States Citizenship and Immigration Services, including the appropriate standard of proof to be applied.


SIERRA, 26 I&N Dec. 288 (BIA 2014)

ID 3799 (PDF)

Under the law of the United States Court of Appeals for the Ninth Circuit, the offense of attempted possession of a stolen vehicle in violation of sections 193.330 and 205.273 of the Nevada Revised Statutes, which requires only a mental state of “reason to believe,” is not categorically an aggravated felony “theft offense (including receipt of stolen property)” under sections 101(a)(43)(G) and (U) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(G) and (U) (2012).


C-J-H-, 26 I&N Dec. 284 (BIA 2014)

ID 3798 (PDF)

An alien whose status has been adjusted from asylee to lawful permanent resident cannot subsequently readjust status under section 209(b) of the Immigration and Nationality Act, 8 U.S.C. § 1159(b) (2012).


CHAVEZ-ALVAREZ, 26 I&N Dec. 274 (BIA 2014)

ID 3797 (PDF)

(1) Adjustment of status constitutes an “admission” for purposes of determining an alien’s removability under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien convicted of an aggravated felony “at any time after admission.” Matter of Rosas, 22 I&N Dec. 616 (BIA 1999), reaffirmed.

(2) An element listed in a specification in the Manual for Courts-Martial (“MCM”), which must be pled and proved beyond a reasonable doubt, is the functional equivalent of an “element” of a criminal offense for immigration purposes.

(3) The crime of sodomy by force in violation of article 125 of the Uniform Code of Military Justice, 10 U.S.C. § 925 (2000), and the Punitive Articles of the MCM relating to sodomy, is a crime of violence under 18 U.S.C. § 16 (2012) within the definition of an aggravated felony under section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F)(2012).


ABDELGHANY, 26 I&N Dec. 254 (BIA 2014)

ID 3796 (PDF)

(1) A lawful permanent resident who has accrued 7 consecutive years of lawful unrelinquished domicile in the United States and who is removable or deportable by virtue of a plea or conviction entered before April 24, 1996, is eligible to apply for discretionary relief under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), unless: (1) the applicant is subject to the grounds of inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act, 8 U.S.C. §§ 1182(a)(3)(A), (B), (C), or (E), or (10)(C) (2012); or (2) the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996.

(2) A lawful permanent resident who has accrued 7 consecutive years of lawful unrelinquished domicile in the United States and who is removable or deportable by virtue of a plea or conviction entered between April 24, 1996, and April 1, 1997, is eligible to apply for discretionary relief from removal or deportation under former section 212(c) of the Act unless: (1) the applicant’s removal or deportation proceedings commenced on or after April 24, 1996, and the conviction renders the applicant removable or deportable under one or more of the deportability grounds enumerated in section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1277 (as amended); or (2) the applicant is subject to the grounds of inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act; or (3) the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996.

(3) A lawful permanent resident who is otherwise eligible for relief under former section 212(c) of the Act may apply for such relief in removal or deportation proceedings without regard to whether the relevant conviction resulted from a plea agreement or a trial and without regard to whether he or she was removable or deportable under the law in effect when the conviction was entered.


M-E-V-G-, 26 I&N Dec. 227 (BIA 2014)

ID 3795 (PDF)

(1) In order to clarify that the “social visibility” element required to establish a cognizable “particular social group” does not mean literal or “ocular” visibility, that element is renamed as “social distinction.” Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008); Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008); Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA 2007); and Matter of C-A-, 23 I&N Dec. 951 (BIA 2006), clarified.

(2) An applicant for asylum or withholding of removal seeking relief based on “membership in a particular social group” must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.

(3) Whether a social group is recognized for asylum purposes is determined by the perception of the society in question, rather than by the perception of the persecutor.


W-G-R-, 26 I&N Dec. 208 (BIA 2014)

ID 3794 (PDF)

(1) In order to clarify that the “social visibility” element required to establish a cognizable “particular social group” does not mean literal or “ocular” visibility, that element is renamed as “social distinction.” Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008); Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008); Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA 2007); and Matter of C-A-, 23 I&N Dec. 951 (BIA 2006), clarified.

(2) An applicant for asylum or withholding of removal seeking relief based on “membership in a particular social group” must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.

(3) An applicant has the burden of demonstrating not only the existence of a cognizable particular social group and his membership in that particular social group, but also a risk of persecution “on account of” his membership in that group.

(4) The respondent did not establish that “former members of the Mara 18 gang in El Salvador who have renounced their gang membership” constitute a “particular social group” or that there is a nexus between the harm he fears and his status as a former gang member.


OPPEDISANO, 26 I&N Dec. 202 (BIA 2013)

ID 3793 (PDF)

The offense of unlawful possession of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g) (2006) is an aggravated felony under section 101(a)(43)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(E)(ii) (2012).


DOUGLAS, 26 I&N Dec. 197 (BIA 2013)

ID 3792 (PDF)

A child who has satisfied the statutory conditions of former section 321(a) of the Immigration and Nationality Act, 8 U.S.C. § 1432(a) (2000), before the age of 18 years has acquired United States citizenship, regardless of whether the naturalized parent acquired legal custody of the child before or after the naturalization. Matter of Baires, 24 I&N Dec. 467 (BIA 2008), followed. Jordon v. Attorney General of U.S., 424 F.3d 320 (3d Cir. 2005), not followed.


PINZON, 26 I&N Dec. 189 (BIA 2013)

ID 3791 (PDF)

(1) An alien who enters the United States by falsely claiming United States citizenship is not deemed to have been inspected by an immigration officer, so the entry is not an “admission” under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A) (2012).

(2) The offense of knowingly and willfully making any materially false, fictitious, or fraudulent statement to obtain a United States passport in violation of 18 U.S.C. § 1001(a)(2) (2006) is a crime involving moral turpitude.


ESTRADA, 26 I&N Dec. 180 (BIA 2013)

ID 3790 (PDF)

A spouse or child accompanying or following to join a principal grandfathered alien cannot qualify as a derivative grandfathered alien for purposes of section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), by virtue of a spouse or child relationship that arose after April 30, 2001.


TAVAREZ-PERALTA, 26 I&N Dec. 171 (BIA 2013)

ID 3789 (PDF)

(1) An alien convicted of violating 18 U.S.C. § 32(a)(5) (2006), who interfered with a police helicopter pilot by shining a laser light into the pilot’s eyes while he operated the helicopter, is removable under section 237(a)(4)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(4)(A)(ii) (2006), as an alien who has engaged in criminal activity that endangers public safety.

(2) A violation of 18 U.S.C. § 32(a)(5) is not a crime of violence under 18 U.S.C. § 16 (2006).


J-G-, 26 I&N Dec. 161 (BIA 2013)

ID 3788 (PDF)

(1) An alien who is subject to an in absentia removal order need not first rescind the order before seeking reopening of the proceedings to apply for asylum and withholding of removal based on changed country conditions arising in the country of the alien’s nationality or the country to which removal has been ordered.

(2) The numerical limitations on filing a motion to reopen in 8 C.F.R. § 1003.23(b)(1)(2013) are not applicable to an alien seeking reopening to apply for asylum and withholding of removal based on changed country conditions arising in the country of the alien’s nationality or the country to which removal has been ordered.


ZELENIAK, 26 I&N Dec. 158 (BIA 2013)

ID 3787 (PDF)

Section 3 of the Defense of Marriage Act, Pub. L. No. 104 199, 110 Stat. 2419, 2419 (1996), is no longer an impediment to the recognition of lawful same-sex marriages and spouses under the Immigration and Nationality Act if the marriage is valid under the laws of the State where it was celebrated.


FLORES, 26 I&N Dec. 155 (BIA 2013)

ID 3786 (PDF)

The offense of traveling in interstate commerce with the intent to distribute the proceeds of an unlawful drug enterprise in violation of 18 U.S.C. § 1952(a)(1)(A) (2006) is not an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2006), because it is neither a “drug trafficking crime” under 18 U.S.C. § 924(c) (2006) nor “illicit trafficking in a controlled substance.” Matter of Davis, 20 I&N Dec. 536 (BIA 1992), followed.


V-X-, 26 I&N Dec. 147 (BIA 2013)

ID 3785 (PDF)

(1) A grant of asylum is not an “admission” to the United States under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A)(2006).

(2) When termination of an alien’s asylum status occurs in conjunction with removal proceedings pursuant to 8 C.F.R. § 1208.24 (2013), the Immigration Judge should ordinarily make a threshold determination regarding the termination of asylum status before resolving issues of removability and eligibility for relief from removal.

(3) An adjudication of “youthful trainee” status pursuant to section 762.11 of the Michigan Compiled Laws is a “conviction” under section 101(a)(48)(A) of the Act because such an adjudication does not correspond to a determination of juvenile delinquency under the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042 (2006). Matter of Devison, 22 I&N Dec. 1362 (BIA 2000), followed.


E-S-I-, 26 I&N Dec. 136 (BIA 2013)

ID 3784 (PDF)

(1) Where the indicia of a respondent’s incompetency are manifest, the Department of Homeland Security (“DHS”) should serve the notice to appear on three individuals: (1) a person with whom the respondent resides, who, when the respondent is detained in a penal or mental institution, will be someone in a position of demonstrated authority in the institution or his or her delegate and, when the respondent is not detained, will be a responsible party in the household, if available; (2) whenever applicable or possible, a relative, guardian, or person similarly close to the respondent; and (3) in most cases, the respondent.

(2) If the DHS did not properly serve the respondent where indicia of incompetency were either manifest or arose at a master calendar hearing that was held shortly after service of the notice to appear, the Immigration Judge should grant a continuance to give the DHS time to effect proper service.

(3) If indicia of incompetency become manifest at a later point in the proceedings and the Immigration Judge determines that safeguards are needed, he or she shouldevaluate the benefit of re-serving the notice to appear in accordance with 8 C.F.R. §§ 103.8(c)(2)(i) and (ii) (2013) as a safeguard.


RIVAS, 26 I&N Dec. 130 (BIA 2013)

ID 3783 (PDF)

A waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2006), is not available on a “stand-alone” basis to an alien in removal proceedings without a concurrently filed application for adjustment of status, and a waiver may not be granted nunc pro tunc to avoid the requirement that the alien must establish eligibility for adjustment.


OTIENDE, 26 I&N Dec. 127 (BIA 2013)

ID 3782 (PDF)

Although a visa petition filed by a petitioner for a spouse may be subject to denial under section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (2006), based on the spouse’s prior marriage, that section does not prevent the approval of a petition filed on behalf of the spouse’s child, which must be considered on its merits to determine whether the child qualifies as the petitioner’s “stepchild” under the Act.


MONTOYA-SILVA, 26 I&N Dec. 123 (BIA 2013)

ID 3781 (PDF)

A parent’s lawful permanent resident status and residence in the United States cannot be imputed to an unemancipated minor for purposes of establishing the child’s eligibility for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2006). Matter of Escobar, 24 I&N Dec. 231 (BIA 2007); and Matter of Ramirez-Vargas, 24 I&N Dec. 599 (BIA 2008), reaffirmed.


B-R-, 26 I&N Dec. 119 (BIA 2013)

ID 3780 (PDF)

An alien who is a citizen or national of more than one country but has no fear of persecution in one of those countries does not qualify as a “refugee” under section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2006), and is ineligible for asylum.


BUTT, 26 I&N Dec.108 (BIA 2013)

ID 3779 (PDF)

(1) For purposes of establishing eligibility for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), an alien seeking to be”grandfathered” must be the beneficiary of an application for labor certification that was “approvable when filed.”

(2) An alien will be presumed to be the beneficiary of a “meritorious in fact” labor certification if the application was “properly filed” and “non-frivolous” and if no apparent bars to approval of the labor certification existed at the time it was filed.


CENTRAL CALIFORNIA LEGAL SERVICES, INC., 26 I&N Dec. 105 (BIA 2013)

ID 3778 (PDF)

A recognized organization’s application for initial accreditation of a proposed representative must show that the individual has recently completed at least one formal training course that was designed to give new practitioners a solid overview of the fundamentals of immigration law and procedure.


ORTEGA-LOPEZ, 26 I&N Dec. 99 (BIA 2013)

ID 3777 (PDF)

The offense of sponsoring or exhibiting an animal in an animal fighting venture in violation of 7U.S.C. § 2156(a)(1) (2006) is categorically a crime involvingmoral turpitude.


G-K-, 26 I&N Dec. 88 (BIA 2013)

ID 3776 (PDF)

(1) The United Nations Convention Against Transnational Organized Crime, Nov. 15, 2000, 2225 U.N.T.S. 209 (“UNTOC”), which is intended to help protect witnesses of transnational organized crime from retaliation and intimidation, does not provide an independent basis for relief from removal in immigration proceedings.

(2) The objectives of the UNTOC are advanced in the United States through existing immigration laws and regulations, including the S, T, and U nonimmigrant visas and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAORSupp.No. 51, at 197,U.N.Doc.A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988).

(3) The Board of Immigration Appeals and the Immigration Judges do not have the authority to rule on the constitutionality of the statutes they administer and therefore lack jurisdiction to address a claimthat the statute barring relief for particularly serious crimes is void for vagueness.


CORTES MEDINA, 26 I&N Dec. 79 (BIA 2013)

ID 3775 (PDF)

The offense of indecent exposure in violation of section 314(1) of the California Penal Code, which includes the element of lewd intent, is categorically a crime involving moral turpitude.


SANCHEZ-LOPEZ, 26 I&N Dec. 71 (BIA 2012)

ID 3774 (PDF)

The offense of stalking in violation of section 646.9 of the California Penal Code is “a crime of stalking” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006).


VALENZUELA-FELIX, 26 I&N Dec. 53 (BIA 2012)

ID 3773 (PDF)

When theDepartment ofHomeland Security paroles a returning lawful permanent resident for prosecution, it need not have all the evidence to sustain its burden of proving that the alien is an applicant for admission but may ordinarily rely on the results of a subsequent prosecution to meet that burden in later removal proceedings.


M-H-, 26 I&N Dec. 46 (BIA 2012)

ID 3772 (PDF)

The holding in Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007), that an offense need not be an aggravated felony to be considered a particularly serious crime for purposes of barring asylum or withholding of removal, should be applied to cases within the jurisdiction of the United States Court of Appeals for the Third Circuit.


SANCHEZ-HERBERT, 26 I&N Dec. 43 (BIA 2012)

ID 3771 (PDF)

Where an alien fails to appear for a hearing because he has departed the United States, termination of the pending proceedings is not appropriate if the alien received proper notice of the hearing and is removable as charged.


DAVEY, 26 I&N Dec. 37 (BIA 2012)

ID 3770 (PDF)

(1) For purposes of section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8U.S.C. § 1227(a)(2)(B)(i) (2006), the phrase “a single offense involving possession for one’s own use of thirty grams or less of marijuana” calls for a circumstance-specific inquiry into the character of the alien’s unlawful conduct on a single occasion, not a categorical inquiry into the elements of a single statutory crime.

(2) An alien convicted of more than one statutory crime may be covered by the exception to deportability for an alien convicted of “a single offense involving possession for one’s own use of thirty grams or less ofmarijuana” if all the alien’s crimeswere closely related to or connected with a single incident in which the alien possessed 30 grams or less of marijuana for his or her own use, provided that none of those crimeswas inherently more serious than simple possession.


M-Z-M-R-, 26 I&N Dec. 28 (BIA 2012)

ID 3769 (PDF)

(1) In assessing an asylum applicant’s ability to internally relocate, an Immigration Judge must determine whether the applicant could avoid future persecution by relocating to another part of the applicant’s country of nationality and whether, under all the circumstances, it would be reasonable to expect the applicant to do so.

(2) For an applicant to be able to internally relocate safely, there must be an area of the country where the circumstances are substantially better than those giving rise to a well-founded fear of persecution on the basis of the original claim.

(3) If an applicant is able to internally relocate, an Immigration Judge should balance the factors identified at 8 C.F.R. § 1208.13(b)(3) (2012) in light of the applicable burden of proof to determine whether it would be reasonable under all the circumstances to expect the applicant to relocate.


LEAL, 26 I&N Dec. 20 (BIA 2012)

ID 3768 (PDF)

The offense of “recklessly endangering another person with a substantial risk of imminent death” in violation of section 13-1201(A) of the Arizona Revised Statutes is categorically a crime involving moral turpitude under the definition in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), even though Arizona law defines recklessness to encompass a subjective ignorance of risk resulting from voluntary intoxication.


Y-N-P-, 26 I&N Dec. 10 (BIA 2012)

ID 3767 (PDF)

An applicant for special rule cancellation of removal under section 240A(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(2) (2006), cannot utilize a waiver of inadmissibility under section 212(h) of the Act, 8 U.S.C. § 1182(h) (2006), to overcome the section 240A(b)(2)(A)(iv) bar resulting from inadmissibility under section 212(a)(2).


E-A-, 26 I&N Dec. 1 (BIA 2012)

ID 3766 (PDF)

(1) In assessing whether there are serious reasons for believing that an applicant for asylum or withholding of removal has committed a serious nonpolitical crime, an Immigration Judge should balance the seriousness of the criminal acts against the political aspect of the conduct to determine whether the criminal nature of the acts outweighs their political character.

(2) When considered together, the applicant’s actions as a member of a group that burned passenger buses and cars, threwstones, and disrupted the economic activity of merchants in the market, while pretending to be from the opposition party, reached the level of serious criminal conduct that, when weighed against its political nature, constituted a serious nonpolitical crime.

CALVILLO GARCIA, 26 I&N Dec. 697 (BIA 2015) ID 3855 (PDF)

A term of confinement in a substance abuse treatment facility imposed as a condition of probation pursuant to article 42.12, section 14(a) of the Texas Code of Criminal Procedure constitutes a “term of confinement” under section 101(a)(48)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(B) (2012), for purposes of determining if an offense is a crime of violence under section 101(a)(43)(F) of the Act.


CASTRO-LOPEZ, 26 I&N Dec. 693 (BIA 2015) ID 3854 (PDF)

The 10 years of continuous physical presence required by 8 C.F.R. § 1240.66(c)(2) (2015) for aliens seeking special rule cancellation of removal under section 203 of the Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, tit. II, 111 Stat. 2160, 2193, 2196 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997), should be measured from the alien’s most recently incurred ground of removal, at least where that ground is among those listed in 8 C.F.R. § 1240.66(c)(1).


Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015) ID 3853 (PDF)

(1) The requirements of the Federal Rules of Evidence with respect to the admission of expert testimony are inapposite to a respondent’s testimony regarding events of which he or she has personal knowledge.

(2) Conduct by an Immigration Judge that can be perceived as bullying or hostile is never appropriate, particularly in cases involving minor respondents, and may result in remand to a different Immigration Judge.


CHAIREZ and SAMA, 26 I&N Dec. 686 (A.G. 2015) ID 3852 (PDF)

The Attorney General referred the decisions of the Board of Immigration Appeals to herself for review of an issue relating to the application of Descamps v. United States, 133 S. Ct. 2276 (2013), ordering that those cases be stayed and not be regarded as precedential or binding as to the issue under review during the pendency of her review.


J-S-S-, 26 I&N Dec. 679 (BIA 2015) ID 3851 (PDF)

(1) Neither party bears a formal burden of proof in immigration proceedings to establish whether or not the respondent is mentally competent, but where indicia of incompetency are identified, the Immigration Judge should determine if a preponderance of the evidence establishes that the respondent is competent.

(2) An Immigration Judge’s finding of competency is a finding of fact that the Board of Immigration Appeals reviews to determine if it is clearly erroneous.


GARCIA-RAMIREZ, 26 I&N Dec. 674 (BIA 2015)  ID 3850 (PDF)

(1) Where an alien has the right to a hearing before an Immigration Judge, a voluntary departure or return does not break the alien’s continuous physical presence for purposes of cancellation of removal under section 240A(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(A) (2012), in the absence of evidence that he or she was informed of and waived the right to such a hearing, regardless of whether the encounter occurred at or near the border. Matter of Avilez, 23 I&N Dec. 799 (BIA 2005), clarified.

(2) Evidence that an alien who had the right to a hearing before an Immigration Judge was fingerprinted and/or photographed before being allowed to voluntarily depart is not enough, in itself, to demonstrate a waiver of the right to a hearing or to show a process of sufficient formality to break continuous physical presence. Matter of Castrejon-Colino, 26 I&N Dec. 667 (BIA 2015), followed.


CASTREJON-COLINO, 26 I&N Dec. 667 (BIA 2015)  ID 3849 (PDF)

(1) Where an alien has the right to a hearing before an Immigration Judge, a voluntary departure or return does not break the alien’s continuous physical presence for purposes of cancellation of removal under section 240A(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(A) (2012), in the absence of evidence that he or she was informed of and waived the right to such a hearing. Matter of Avilez, 23 I&N Dec. 799 (BIA 2005), clarified.

(2) Evidence that an alien who had the right to a hearing before an Immigration Judge was fingerprinted and/or photographed before being allowed to voluntarily depart is not enough, in itself, to demonstrate a waiver of the right to a hearing or to show a process of sufficient formality to break continuous physical presence.


R-K-K-, 26 I&N Dec. 658 (BIA 2015)  ID 3848 (PDF)

(1) Significant similarities between statements submitted by applicants in different proceedings can be considered by an Immigration Judge in making an adverse credibility determination if certain procedural steps are undertaken to preserve the fairness of the proceedings.

(2) When relying on inter-proceeding similarities, the Immigration Judge should give the applicant meaningful notice of the similarities and a reasonable opportunity to explain them prior to making a credibility determination that is based on the totality of the circumstances.


M-A-F-, 26 I&N Dec. 651 (BIA 2015)  ID 3847 (PDF)

(1) Where an applicant has filed an asylum application before the May 11, 2005, effective date of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 302, and, on or after that date, submitted a subsequent application that is properly viewed as a new application, the later filing date controls for purposes of determining the applicability of section 208(b)(1)(B)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(B)(iii) (2012), to credibility determinations.

(2) A subsequent asylum application is properly viewed as a new application if it presents a previously unraised basis for relief or is predicated on a new or substantially different factual basis.

(3) Where an alien has filed more than one application for asylum and the subsequent one is deemed to be a new application, the filing date of the later application controls for purposes of determining whether the 1-year statutory time bar applies under section 208(a)(2)(B) of the Act.


D-M-C-P-, 26 I&N Dec. 644 (BIA 2015)  ID 3846 (PDF)

(1) Neither an Immigration Judge nor the Board of Immigration Appeals has jurisdiction to consider whether asylum-only proceedings were improvidently instituted pursuant to a referral under the Visa Waiver Program.

(2) It is improper to deem an application for relief abandoned based on the applicant’s failure to comply with the biometrics filing requirement where the record does not reflect that the applicant received notification advisories concerning that requirement, was given a deadline for submitting the biometrics, and was advised of the consequences of his or her failure to comply.


ORDAZ, 26 I&N Dec. 637 (BIA 2015)  ID 3845 (PDF)

A notice to appear that was served on an alien but never resulted in the commencement of removal proceedings does not have “stop-time” effect for purposes of establishing eligibility for cancellation of removal pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1) (2012).


R. HUANG, 26 I&N Dec. 627 (BIA 2015)  ID 3844 (PDF)

The beneficiary of a visa petition who was adopted pursuant to a State court order that was entered when the beneficiary was more than 16 years old, but with an effective date prior to his or her 16th birthday, may qualify as an adopted child under section 101(b)(1)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(E)(i)(2012), so long as the adoption petition was filed before the beneficiary’s 16th birthday and the State in which the adoption was entered expressly permits an adoption decree to be dated retroactively. Matter of Cariaga, 15 I&N Dec. 716 (BIA 1976), and Matter of Drigo, 18 I&N Dec. 223 (BIA 1982), modified.


P. SINGH, 26 I&N Dec. 623 (BIA 2015)  ID 3843 (PDF)

An attorney who admitted to engaging in conduct prejudicial to the administration of justice by enlisting his legal assistant to impersonate him during multiple telephonic appearances before Immigration Judges was appropriately suspended from practice before the Immigration Courts, the Board of Immigration Appeals, and the Department of Homeland Security for a period of 16 months and prohibited from appearing telephonically in the Immigration Courts for 7 years.


PENA, 26 I&N Dec. 613 (BIA 2015) ID 3842 (PDF)

An alien returning to the United States who has been granted lawful permanent resident status cannot be regarded as seeking an admission and may not be charged with inadmissibility under section 212(a) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a) (2012), if he or she does not fall within any of the exceptions in section 101(a)(13)(C) of the Act, 8 U.S.C. § 1101(a)(13)(C) (2012). Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003), distinguished.


J-R-R-A-, 26 I&N Dec. 609 (BIA 2015)   ID 3841 (PDF)

If an applicant for asylum has competency issues that affect the reliability of his testimony, the Immigration Judge should, as a safeguard, generally accept his fear of harm as subjectively genuine based on the applicant’s perception of events.


FAJARDO ESPINOZA , 26 I&N Dec. 603 (BIA 2015) ID 3840 (PDF)

A grant of Family Unity Program benefits does not constitute an “admission” to the United States under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A) (2012), for purposes of establishing that an alien has accrued the requisite 7 years of continuous residence after having been “admitted in any status” to be eligible for cancellation of removal under section 240A(a)(2) of the Act, 8 U.S.C. § 1229b(a)(2) (2012). Matter of Reza, 25 I&N Dec. 296 (BIA 2010), reaffirmed. Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006), not followed.


FRANCISCO-ALONZO, 26 I&N Dec. 594 (BIA 2015) ID 3839 (PDF)

In determining whether a conviction is for an aggravated felony crime of violence under 18 U.S.C. § 16(b) (2012), the proper inquiry is whether the conduct encompassed by the elements of the offense presents a substantial risk that physical force may be used in the course of committing the offense in the “ordinary case.”


Z-Z-O-, 26 I&N Dec. 586 (BIA 2015) ID 3838 (PDF)

(1) An Immigration Judge’s predictive findings of what may or may not occur in the future are findings of fact, which are subject to a clearly erroneous standard of review. Matter of V-K-, 24 I&N Dec. 500 (BIA 2008), and Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008), overruled.

(2) Whether an asylum applicant has an objectively reasonable fear of persecution based on the events that the Immigration Judge found may occur upon the applicant’s return to the country of removal is a legal determination that is subject to de novo review.


AGOUR, 26 I&N Dec. 566 (BIA 2015) ID 3837 (PDF)

Adjustment of status constitutes an “admission” for purposes of determining an alien’s eligibility to apply for a waiver under section 237(a)(1)(H) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(H) (2012). Matter of Connelly, 19 I&N Dec. 156 (BIA 1984), distinguished.


J-H-J-, 26 I&N Dec. 563 (BIA 2015)  ID 3836 (PDF)

An alien who adjusted status in the United States, and who has not entered as a lawful permanent resident, is not barred from establishing eligibility for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2012), as a result of an aggravated felony conviction. Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012), and Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), withdrawn.


FITZPATRICK, 26 I&N Dec. 559 (BIA 2015) ID 3835 (PDF)

An alien who has voted in an election involving candidates for Federal office in violation of 18 U.S.C. § 611(a) (2012) is removable under section 237(a)(6)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(6)(A) (2012), regardless of whether the alien knew that he or she was committing an unlawful act by voting.


 MONTIEL, 26 I&N Dec. 555 (BIA 2015) ID 3834 (PDF)

Removal proceedings may be delayed, where warranted, pending the adjudication of a direct appeal of a criminal conviction. Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), followed.


SILVA-TREVINO, 26 I&N Dec. 550 (A.G. 2015) ID 3833 (PDF)

The Attorney General vacated the opinion in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).


SIMEIO SOLUTIONS, LLC, 26 I&N Dec. 542 (AAO 2015) ID 3832 (PDF)

(1) A change in the place of employment of a beneficiary to a geographical area requiring a corresponding Labor Condition Application for Nonimmigrant Workers (“LCA”) be certified to the U.S. Department of Homeland Security with respect to that beneficiary may affect eligibility for H-1B status; it is therefore a material change for purposes of 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).

(2) When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H-1B petition with the corresponding LCA.


CHRISTO’S, INC., 26 I&N Dec. 537 (AAO 2015) ID 3831 (PDF)

(1) An alien who submits false documents representing a nonexistent or fictitious marriage, but who never either entered into or attempted or conspired to enter into a marriage, may intend to evade the immigration laws but is not, by such act alone, considered to have “entered into” or “attempted or conspired to enter into” a marriage for purposes of section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (2012). Matter of Concepcion, 16 I&N Dec. 10 (BIA 1976), followed.

(2) Misrepresentations relating to a nonexistent marriage may render the beneficiary inadmissible under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2012), when the Director adjudicates the application for adjustment of status.


LEACHENG INTERNATIONAL, INC., 26 I&N Dec. 532 (AAO 2015) ID 3830 (PDF)

(1) The definition of “doing business” at 8 C.F.R. § 204.5(j)(2) (2014) contains no requirement that a petitioner for a multinational manager or executive must provide goods and or services to an unaffiliated third party.

(2) A petitioner may establish that it is “doing business” by demonstrating that it is providing goods and/or services in a regular, systematic, and continuous manner to related companies within its multinational organization.


CERDA REYES, 26 I&N Dec. 528 (BIA 2015) ID 3829 (PDF)

The rules for applying for a bond redetermination at 8 C.F.R. § 1003.19(c) (2014) relate to venue, not jurisdiction.


L-A-C-, 26 I&N Dec. 516 (BIA 2015) ID 3828 (PDF)

(1) Where an Immigration Judge finds that an applicant for asylum or withholding of removal has not provided reasonably available corroborating evidence to establish his claim, the Immigration Judge should first consider the applicant’s explanations for the absence of such evidence and, if a continuance is requested, determine whether there is good cause to continue the proceedings for the applicant to obtain the evidence.

(2) Although an Immigration Judge should consider an applicant’s explanation for the absence of corroborating evidence, section 208(b)(1)(B)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(B)(ii) (2012), does not require the Immigration Judge to identify the specific evidence necessary to meet the applicant’s burden of proof and to provide an automatic continuance for the applicant to obtain that evidence prior to rendering a decision on the application.


VIDES CASANOVA, 26 I&N Dec. 494 (BIA 2015)  ID 3827 (PDF)

The respondent is removable under section 237(a)(4)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(4)(D) (2012), where the totality of the record supported the conclusion that, through his “command responsibility” in his role as Director of the Salvadoran National Guard and as Minister of Defense of El Salvador, he participated in the commission of particular acts of torture and extrajudicial killing of civilians in El Salvador, in that they took place while he was in command, he was aware of these abuses during or after the fact, and through both his personal interference with investigations and his inaction, he did not hold the perpetrators accountable.


CROSS, 26 I&N Dec. 485 (BIA 2015)  ID 3826 (PDF)

A person born out of wedlock may qualify as a legitimated “child” of his or her biological parents under section 101(c)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1101(c)(1) (2012), for purposes of citizenship if he or she was born in a country or State that has eliminated all legal distinctions between children based on the marital status of their parents or had a residence or domicile in such a country or State (including a State within the United States), if otherwise eligible. Matter of Hines, 24 I&N Dec. 544 (BIA 2008), and Matter of Rowe, 23 I&N Dec. 962 (BIA 2006), overruled in part. Matter of Clahar, 18 I&N Dec. 1 (BIA 1981), and Matter of Goorahoo, 20 I&N Dec. 782 (BIA 1994), reaffirmed.


CHAIREZ, 26 I&N Dec. 478 (BIA 2015)  ID 3825 (PDF)

(1) With respect to aggravated felony convictions, Immigration Judges must follow the law of the circuit court of appeals in whose jurisdiction they sit in evaluating issues of divisibility, so the interpretation of Descamps v. United States, 133 S. Ct. 2276 (2013), reflected in Matter of Chairez, 26 I&N Dec. 349 (BIA 2014), applies only insofar as there is no controlling authority to the contrary in the relevant circuit.

(2) Because the United States Court of Appeals for the Tenth Circuit has taken an approach to divisibility different from that adopted inMatter of Chairez, the law of the Tenth Circuit must be followed in that circuit.


ESQUIVEL-QUINTANA, 26 I&N Dec. 469 (BIA 2015)

ID 3824 (PDF)

(1) For a statutory rape offense that may include a 16- or 17-year-old victim to be categorically “sexual abuse of a minor” under section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2012), the statute must require a meaningful age differential between the victim and the perpetrator. Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999), and Matter of V-F-D-, 23 I&N Dec. 859 (BIA 2006), clarified.

(2) The offense of unlawful intercourse with a minor in violation of section 261.5(c) of the California Penal Code, which requires that the minor victim be “more than three years younger” than the perpetrator, categorically constitutes “sexual abuse of a minor” and is therefore an aggravated felony under section 101(a)(43)(A) of the Act.


O. A. HERNANDEZ, 26 I&N Dec. 464 (BIA 2015)

ID 3823 (PDF)

The offense of “deadly conduct” in violation of section 22.05(a) of the Texas Penal Code, which punishes a person who “recklessly engages in conduct that places another in imminent danger of serious bodily injury,” is categorically a crime involving moral turpitude.


VELASQUEZ-CRUZ, 26 I&N Dec. 458 (BIA 2014)

ID 3822 (PDF)

An alien’s departure from the United States following a criminal conviction for illegal entry under section 275(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1325(a)(1) (2012), interrupts the 10-year period of continuous physical presence required to establish eligibility for cancellation of removal under section 240A(b)(1) of the Act, 8 U.S.C. § 1229b(b)(1) (2012).


UNITED FARM WORKERS FOUNDATION, 26 I&N Dec. 454 (BIA 2014)

ID 3821 (PDF)

A recognized organization need only apply for its representative’s accreditation at one location, and if approved, that representative may thereafter practice at any branch location of the organization that has been recognized by the Board of Immigration Appeals. Matter of EAC, Inc., 24 I&N Dec. 563 (BIA 2008), modified.


AYUDA, 26 I&N Dec. 449 (BIA 2014)

ID 3820 (PDF)

When assessing an organization’s application for recognition, the Board of Immigration Appeals makes an individualized determination whether the applicant’s fees qualify as “nominal charges” and whether its fee structure is true to the goal of providing competent low-cost legal services. Matter of American Paralegal Academy, Inc., 19 I&N Dec. 386 (BIA 1986), clarified.


ST. FRANCIS CABRINI IMMIGRATION LAW CENTER, 26 I&N Dec. 445 (BIA 2014)

ID 3819 (PDF)

Where an organization is physically colocated or financially associated with, or otherwise attached to, a for-profit venture, the Board of Immigration Appeals will not approve an application for recognition unless it is confident that the organization will not be influenced, either explicitly or implicitly, by the pecuniary interests of the commercial affiliate.


BETT, 26 I&N Dec. 437 (BIA 2014)

ID 3818 (PDF)

A Form I-9 (Employment Eligibility Verification) is admissible in immigration proceedings to support charges of removability against an alien and to determine his or her eligibility for relief from removal.


MUNROE, 26 I&N Dec. 428 (BIA 2014)

ID 3817 (PDF)

For purposes of establishing an alien’s eligibility for a waiver under section 216(c)(4)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1186a(c)(4)(A) (2012), the relevant period for determining whether an alien’s removal would result in extreme hardship is the 2-year period for which the alien was admitted as a conditional permanent resident.


PINA-GALINDO, 26 I&N Dec. 423 (BIA 2014)

ID 3816 (PDF)

An alien is ineligible for cancellation of removal under section 240A(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(C) (2012), if he or she falls within the scope of section 212(a)(2)(B) of the Act, 8 U.S.C. § 1182(a)(2)(B) (2012), as having been convicted of two or more offenses for which the aggregate sentences imposed were 5 years or more.


FERREIRA, 26 I&N Dec. 415 (BIA 2014)

ID 3815 (PDF)

Where a State statute on its face covers a controlled substance not included in the Federal controlled substances schedules, there must be a realistic probability that the State would prosecute conduct under the statute that falls outside the generic definition of the removable offense to defeat a charge of removability under the categorical approach.


DOMINGUEZ-RODRIGUEZ, 26 I&N Dec. 408 (BIA 2014)

ID 3814 (PDF)

For purposes of section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2012), the phrase “a single offense involving possession for one’s own use of thirty grams or less of marijuana” calls for a circumstance-specific inquiry into the character of the alien’s unlawful conduct on a single occasion, not a categorical inquiry into the elements of a single statutory crime. Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), distinguished. Matter of Davey, 26 I&N Dec. 37 (BIA 2012), reaffirmed.


PAEK, 26 I&N Dec. 403 (BIA 2014)

ID 3813 (PDF)

An alien who was admitted to the United States at a port of entry as a conditional permanent resident pursuant to section 216(a) of the Immigration and Nationality Act, 8 U.S.C. § 1186a(a) (2012), is an alien “lawfully admitted for permanent residence” who is barred from establishing eligibility for a waiver of inadmissibility under section 212(h) of the Act, 8 U.S.C. § 1182(h) (2012), if he or she was subsequently convicted of an aggravated felony.


HERNANDEZ, 26 I&N Dec. 397 (BIA 2014)

ID 3812 (PDF)

Malicious vandalism in violation of section 594(a) of the California Penal Code with a gang enhancement under section 186.22(d) of the California Penal Code, which requires that the underlying offense be committed for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members, is categorically a crime involving moral turpitude.


A-R-C-G-, 26 I&N Dec. 388 (BIA 2014)

ID 3811 (PDF)

Depending on the facts and evidence in an individual case, “married women in Guatemala who are unable to leave their relationship” can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal under sections 208(a) and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(a) and 1231(b)(3) (2012).


C-C-I-, 26 I&N Dec. 375 (BIA 2014)

ID 3810 (PDF)

(1) Reopening of removal proceedings for a de novo hearing to consider termination of an alien’s deferral of removal pursuant to 8 C.F.R. § 1208.17(d)(1) (2014), is warranted where the Government presents evidence that was not considered at the previous hearing if it is relevant to the possibility that the alien will be tortured in the country to which removal has been deferred.

(2) The doctrine of collateral estoppel does not prevent an Immigration Judge from reevaluating an alien’s credibility in light of additional evidence presented at a hearing under 8 C.F.R. § 1208.17(d)(3).


L-G-H-, 26 I&N Dec. 365 (BIA 2014)

ID 3809 (PDF)

Sale of a controlled substance in violation of section 893.13(1)(a)(1) of the Florida Statutes, which lacks a mens rea element with respect to the illicit nature of the substance but requires knowledge of its presence and includes an affirmative defense for ignorance of its unlawful nature, is an “illicit trafficking” aggravated felony under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2012).


M-L-M-A-, 26 I&N Dec. 360 (BIA 2014)

ID 3808 (PDF)

(1) Because an application for special rule cancellation of removal under section 240A(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(2) (2006), is a continuing one, false testimony given by the respondent more than 3 years prior to the entry of a final administrative order should not be considered in determining whether she is barred from establishing good moral character under section 101(f)(6) of the Act, 8 U.S.C. § 1101(f)(6) (2006). Matter of Garcia, 24 I&N Dec. 179 (BIA 2007), and Matter of Ortega-Cabrera, 23 I&N Dec. 793 (BIA 2005), followed.

(2) Although the respondent was divorced from her abusive husband and subsequently had a long-term relationship with another man, she had not previously been granted special rule cancellation of removal based on her abusive marriage and had significant equities that merited a favorable exercise of discretion. Matter of A-M-, 25 I&N Dec. 66 (BIA 2009), distinguished.


CHAIREZ, 26 I&N Dec. 349 (BIA 2014)

ID 3807 (PDF)

(1) The categorical approach, which requires a focus on the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction, is employed to determine whether the respondent’s conviction for felony discharge of a firearm under section 76-10-508.1 of the Utah Code is for a crime of violence aggravated felony or a firearms offense under the Immigration and Nationality Act. Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), followed.

(2) The Department of Homeland Security did not meet its burden of establishing the respondent’s removability as an alien convicted of an aggravated felony where it did not show that section 76-10-508.1 of the Utah Code was divisible with respect to the mens rea necessary to constitute a crime of violence. Descamps v. United States, 133 S. Ct. 2276 (2013), followed. Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012), withdrawn.

(3) Where the respondent did not demonstrate that he or anyone else was successfully prosecuted for discharging an “antique firearm” under section 76-10-508.1 of the Utah Code, which contains no exception for “antique firearms” as defined by 18 U.S.C. § 921(a)(16) (2012), the statute was not shown to be categorically overbroad relative to section 237(a)(2)(C) of the Act, 8 U.S.C. § 1227(a)(2)(C) (2012). Matter of Mendez-Orellana, 25 I&N Dec. 254 (BIA 2010), clarified.


G-G-S-, 26 I&N Dec. 339 (BIA 2014)

ID 3806 (PDF)

An alien’s mental health as a factor in a criminal act falls within the province of the criminal courts and is not considered in assessing whether the alien was convicted of a “particularly serious crime” for immigration purposes.


P-S-H-, 26 I&N Dec. 329 (BIA 2014)

ID 3805 (PDF)

To terminate a grant of asylum pursuant to 8 C.F.R. § 1208.24 (2013), the Department of Homeland Security must establish, by a preponderance of the evidence, that (1) there was fraud in the alien’s asylum application and (2) the fraud was such that the alien was not eligible for asylum at the time it was granted; however, proof that the alien knew of the fraud in the application is not required in order to satisfy the first criterion. Matter of A-S-J-, 25 I&N Dec. 893 (BIA 2012), clarified.


DUARTE-LUNA and LUNA, 26 I&N Dec. 325 (BIA 2014)

ID 3804 (PDF)

A parent’s continuous physical presence and continuous residence in the United States cannot be imputed to a child for purposes of establishing the child’s eligibility for Temporary Protected Status.


E-F-H-L-, 26 I&N Dec. 319 (BIA 2014)

ID 3803 (PDF)

In the ordinary course of removal proceedings, an applicant for asylum or for withholding or deferral of removal is entitled to a hearing on the merits of those applications, including an opportunity to provide oral testimony and other evidence, without first having to establish prima facie eligibility for the requested relief. Matter of Fefe, 20 I&N Dec. 116 (BIA 1989), followed.


JACKSON, 26 I&N Dec. 314 (BIA 2014)

ID 3802 (PDF)

Section 402(a)(2) of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, 622, which bars the approval of a family-based visa petition filed by a petitioner who has been convicted of a “specified offense against a minor” and has not shown that he poses “no risk” to the beneficiary, does not have an impermissible retroactive effect when applied to convictions that occurred before its enactment.


INTROCASO, 26 I&N Dec. 304 (BIA 2014)

ID 3801 (PDF)

(1) In a visa petition case involving the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, the petitioner bears the burden of proving that he has not been convicted of a “specified offense against a minor.”

(2) In assessing whether a petitioner has been convicted of a “specified offense against a minor,” adjudicators may apply the “circumstance-specific” approach, which permits an inquiry into the facts and conduct underlying the conviction to determine if it is for a disqualifying offense.


ACEIJAS-QUIROZ, 26 I&N Dec. 294 (BIA 2014)

ID 3800 (PDF)

In adjudicating cases involving the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, the Board of Immigration Appeals lacks jurisdiction to review a “no risk” determination by the United States Citizenship and Immigration Services, including the appropriate standard of proof to be applied.


SIERRA, 26 I&N Dec. 288 (BIA 2014)

ID 3799 (PDF)

Under the law of the United States Court of Appeals for the Ninth Circuit, the offense of attempted possession of a stolen vehicle in violation of sections 193.330 and 205.273 of the Nevada Revised Statutes, which requires only a mental state of “reason to believe,” is not categorically an aggravated felony “theft offense (including receipt of stolen property)” under sections 101(a)(43)(G) and (U) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(G) and (U) (2012).


C-J-H-, 26 I&N Dec. 284 (BIA 2014)

ID 3798 (PDF)

An alien whose status has been adjusted from asylee to lawful permanent resident cannot subsequently readjust status under section 209(b) of the Immigration and Nationality Act, 8 U.S.C. § 1159(b) (2012).


CHAVEZ-ALVAREZ, 26 I&N Dec. 274 (BIA 2014)

ID 3797 (PDF)

(1) Adjustment of status constitutes an “admission” for purposes of determining an alien’s removability under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien convicted of an aggravated felony “at any time after admission.” Matter of Rosas, 22 I&N Dec. 616 (BIA 1999), reaffirmed.

(2) An element listed in a specification in the Manual for Courts-Martial (“MCM”), which must be pled and proved beyond a reasonable doubt, is the functional equivalent of an “element” of a criminal offense for immigration purposes.

(3) The crime of sodomy by force in violation of article 125 of the Uniform Code of Military Justice, 10 U.S.C. § 925 (2000), and the Punitive Articles of the MCM relating to sodomy, is a crime of violence under 18 U.S.C. § 16 (2012) within the definition of an aggravated felony under section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F)(2012).


ABDELGHANY, 26 I&N Dec. 254 (BIA 2014)

ID 3796 (PDF)

(1) A lawful permanent resident who has accrued 7 consecutive years of lawful unrelinquished domicile in the United States and who is removable or deportable by virtue of a plea or conviction entered before April 24, 1996, is eligible to apply for discretionary relief under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), unless: (1) the applicant is subject to the grounds of inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act, 8 U.S.C. §§ 1182(a)(3)(A), (B), (C), or (E), or (10)(C) (2012); or (2) the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996.

(2) A lawful permanent resident who has accrued 7 consecutive years of lawful unrelinquished domicile in the United States and who is removable or deportable by virtue of a plea or conviction entered between April 24, 1996, and April 1, 1997, is eligible to apply for discretionary relief from removal or deportation under former section 212(c) of the Act unless: (1) the applicant’s removal or deportation proceedings commenced on or after April 24, 1996, and the conviction renders the applicant removable or deportable under one or more of the deportability grounds enumerated in section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1277 (as amended); or (2) the applicant is subject to the grounds of inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act; or (3) the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996.

(3) A lawful permanent resident who is otherwise eligible for relief under former section 212(c) of the Act may apply for such relief in removal or deportation proceedings without regard to whether the relevant conviction resulted from a plea agreement or a trial and without regard to whether he or she was removable or deportable under the law in effect when the conviction was entered.


M-E-V-G-, 26 I&N Dec. 227 (BIA 2014)

ID 3795 (PDF)

(1) In order to clarify that the “social visibility” element required to establish a cognizable “particular social group” does not mean literal or “ocular” visibility, that element is renamed as “social distinction.” Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008); Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008); Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA 2007); and Matter of C-A-, 23 I&N Dec. 951 (BIA 2006), clarified.

(2) An applicant for asylum or withholding of removal seeking relief based on “membership in a particular social group” must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.

(3) Whether a social group is recognized for asylum purposes is determined by the perception of the society in question, rather than by the perception of the persecutor.


W-G-R-, 26 I&N Dec. 208 (BIA 2014)

ID 3794 (PDF)

(1) In order to clarify that the “social visibility” element required to establish a cognizable “particular social group” does not mean literal or “ocular” visibility, that element is renamed as “social distinction.” Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008); Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008); Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA 2007); and Matter of C-A-, 23 I&N Dec. 951 (BIA 2006), clarified.

(2) An applicant for asylum or withholding of removal seeking relief based on “membership in a particular social group” must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.

(3) An applicant has the burden of demonstrating not only the existence of a cognizable particular social group and his membership in that particular social group, but also a risk of persecution “on account of” his membership in that group.

(4) The respondent did not establish that “former members of the Mara 18 gang in El Salvador who have renounced their gang membership” constitute a “particular social group” or that there is a nexus between the harm he fears and his status as a former gang member.


OPPEDISANO, 26 I&N Dec. 202 (BIA 2013)

ID 3793 (PDF)

The offense of unlawful possession of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g) (2006) is an aggravated felony under section 101(a)(43)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(E)(ii) (2012).


DOUGLAS, 26 I&N Dec. 197 (BIA 2013)

ID 3792 (PDF)

A child who has satisfied the statutory conditions of former section 321(a) of the Immigration and Nationality Act, 8 U.S.C. § 1432(a) (2000), before the age of 18 years has acquired United States citizenship, regardless of whether the naturalized parent acquired legal custody of the child before or after the naturalization. Matter of Baires, 24 I&N Dec. 467 (BIA 2008), followed. Jordon v. Attorney General of U.S., 424 F.3d 320 (3d Cir. 2005), not followed.


PINZON, 26 I&N Dec. 189 (BIA 2013)

ID 3791 (PDF)

(1) An alien who enters the United States by falsely claiming United States citizenship is not deemed to have been inspected by an immigration officer, so the entry is not an “admission” under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A) (2012).

(2) The offense of knowingly and willfully making any materially false, fictitious, or fraudulent statement to obtain a United States passport in violation of 18 U.S.C. § 1001(a)(2) (2006) is a crime involving moral turpitude.


ESTRADA, 26 I&N Dec. 180 (BIA 2013)

ID 3790 (PDF)

A spouse or child accompanying or following to join a principal grandfathered alien cannot qualify as a derivative grandfathered alien for purposes of section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), by virtue of a spouse or child relationship that arose after April 30, 2001.


TAVAREZ-PERALTA, 26 I&N Dec. 171 (BIA 2013)

ID 3789 (PDF)

(1) An alien convicted of violating 18 U.S.C. § 32(a)(5) (2006), who interfered with a police helicopter pilot by shining a laser light into the pilot’s eyes while he operated the helicopter, is removable under section 237(a)(4)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(4)(A)(ii) (2006), as an alien who has engaged in criminal activity that endangers public safety.

(2) A violation of 18 U.S.C. § 32(a)(5) is not a crime of violence under 18 U.S.C. § 16 (2006).


J-G-, 26 I&N Dec. 161 (BIA 2013)

ID 3788 (PDF)

(1) An alien who is subject to an in absentia removal order need not first rescind the order before seeking reopening of the proceedings to apply for asylum and withholding of removal based on changed country conditions arising in the country of the alien’s nationality or the country to which removal has been ordered.

(2) The numerical limitations on filing a motion to reopen in 8 C.F.R. § 1003.23(b)(1)(2013) are not applicable to an alien seeking reopening to apply for asylum and withholding of removal based on changed country conditions arising in the country of the alien’s nationality or the country to which removal has been ordered.


ZELENIAK, 26 I&N Dec. 158 (BIA 2013)

ID 3787 (PDF)

Section 3 of the Defense of Marriage Act, Pub. L. No. 104 199, 110 Stat. 2419, 2419 (1996), is no longer an impediment to the recognition of lawful same-sex marriages and spouses under the Immigration and Nationality Act if the marriage is valid under the laws of the State where it was celebrated.


FLORES, 26 I&N Dec. 155 (BIA 2013)

ID 3786 (PDF)

The offense of traveling in interstate commerce with the intent to distribute the proceeds of an unlawful drug enterprise in violation of 18 U.S.C. § 1952(a)(1)(A) (2006) is not an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2006), because it is neither a “drug trafficking crime” under 18 U.S.C. § 924(c) (2006) nor “illicit trafficking in a controlled substance.” Matter of Davis, 20 I&N Dec. 536 (BIA 1992), followed.


V-X-, 26 I&N Dec. 147 (BIA 2013)

ID 3785 (PDF)

(1) A grant of asylum is not an “admission” to the United States under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A)(2006).

(2) When termination of an alien’s asylum status occurs in conjunction with removal proceedings pursuant to 8 C.F.R. § 1208.24 (2013), the Immigration Judge should ordinarily make a threshold determination regarding the termination of asylum status before resolving issues of removability and eligibility for relief from removal.

(3) An adjudication of “youthful trainee” status pursuant to section 762.11 of the Michigan Compiled Laws is a “conviction” under section 101(a)(48)(A) of the Act because such an adjudication does not correspond to a determination of juvenile delinquency under the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042 (2006). Matter of Devison, 22 I&N Dec. 1362 (BIA 2000), followed.


E-S-I-, 26 I&N Dec. 136 (BIA 2013)

ID 3784 (PDF)

(1) Where the indicia of a respondent’s incompetency are manifest, the Department of Homeland Security (“DHS”) should serve the notice to appear on three individuals: (1) a person with whom the respondent resides, who, when the respondent is detained in a penal or mental institution, will be someone in a position of demonstrated authority in the institution or his or her delegate and, when the respondent is not detained, will be a responsible party in the household, if available; (2) whenever applicable or possible, a relative, guardian, or person similarly close to the respondent; and (3) in most cases, the respondent.

(2) If the DHS did not properly serve the respondent where indicia of incompetency were either manifest or arose at a master calendar hearing that was held shortly after service of the notice to appear, the Immigration Judge should grant a continuance to give the DHS time to effect proper service.

(3) If indicia of incompetency become manifest at a later point in the proceedings and the Immigration Judge determines that safeguards are needed, he or she shouldevaluate the benefit of re-serving the notice to appear in accordance with 8 C.F.R. §§ 103.8(c)(2)(i) and (ii) (2013) as a safeguard.


RIVAS, 26 I&N Dec. 130 (BIA 2013)

ID 3783 (PDF)

A waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2006), is not available on a “stand-alone” basis to an alien in removal proceedings without a concurrently filed application for adjustment of status, and a waiver may not be granted nunc pro tunc to avoid the requirement that the alien must establish eligibility for adjustment.


OTIENDE, 26 I&N Dec. 127 (BIA 2013)

ID 3782 (PDF)

Although a visa petition filed by a petitioner for a spouse may be subject to denial under section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (2006), based on the spouse’s prior marriage, that section does not prevent the approval of a petition filed on behalf of the spouse’s child, which must be considered on its merits to determine whether the child qualifies as the petitioner’s “stepchild” under the Act.


MONTOYA-SILVA, 26 I&N Dec. 123 (BIA 2013)

ID 3781 (PDF)

A parent’s lawful permanent resident status and residence in the United States cannot be imputed to an unemancipated minor for purposes of establishing the child’s eligibility for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2006). Matter of Escobar, 24 I&N Dec. 231 (BIA 2007); and Matter of Ramirez-Vargas, 24 I&N Dec. 599 (BIA 2008), reaffirmed.


B-R-, 26 I&N Dec. 119 (BIA 2013)

ID 3780 (PDF)

An alien who is a citizen or national of more than one country but has no fear of persecution in one of those countries does not qualify as a “refugee” under section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2006), and is ineligible for asylum.


BUTT, 26 I&N Dec.108 (BIA 2013)

ID 3779 (PDF)

(1) For purposes of establishing eligibility for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), an alien seeking to be”grandfathered” must be the beneficiary of an application for labor certification that was “approvable when filed.”

(2) An alien will be presumed to be the beneficiary of a “meritorious in fact” labor certification if the application was “properly filed” and “non-frivolous” and if no apparent bars to approval of the labor certification existed at the time it was filed.


CENTRAL CALIFORNIA LEGAL SERVICES, INC., 26 I&N Dec. 105 (BIA 2013)

ID 3778 (PDF)

A recognized organization’s application for initial accreditation of a proposed representative must show that the individual has recently completed at least one formal training course that was designed to give new practitioners a solid overview of the fundamentals of immigration law and procedure.


ORTEGA-LOPEZ, 26 I&N Dec. 99 (BIA 2013)

ID 3777 (PDF)

The offense of sponsoring or exhibiting an animal in an animal fighting venture in violation of 7U.S.C. § 2156(a)(1) (2006) is categorically a crime involvingmoral turpitude.


G-K-, 26 I&N Dec. 88 (BIA 2013)

ID 3776 (PDF)

(1) The United Nations Convention Against Transnational Organized Crime, Nov. 15, 2000, 2225 U.N.T.S. 209 (“UNTOC”), which is intended to help protect witnesses of transnational organized crime from retaliation and intimidation, does not provide an independent basis for relief from removal in immigration proceedings.

(2) The objectives of the UNTOC are advanced in the United States through existing immigration laws and regulations, including the S, T, and U nonimmigrant visas and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAORSupp.No. 51, at 197,U.N.Doc.A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988).

(3) The Board of Immigration Appeals and the Immigration Judges do not have the authority to rule on the constitutionality of the statutes they administer and therefore lack jurisdiction to address a claimthat the statute barring relief for particularly serious crimes is void for vagueness.


CORTES MEDINA, 26 I&N Dec. 79 (BIA 2013)

ID 3775 (PDF)

The offense of indecent exposure in violation of section 314(1) of the California Penal Code, which includes the element of lewd intent, is categorically a crime involving moral turpitude.


SANCHEZ-LOPEZ, 26 I&N Dec. 71 (BIA 2012)

ID 3774 (PDF)

The offense of stalking in violation of section 646.9 of the California Penal Code is “a crime of stalking” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006).


VALENZUELA-FELIX, 26 I&N Dec. 53 (BIA 2012)

ID 3773 (PDF)

When theDepartment ofHomeland Security paroles a returning lawful permanent resident for prosecution, it need not have all the evidence to sustain its burden of proving that the alien is an applicant for admission but may ordinarily rely on the results of a subsequent prosecution to meet that burden in later removal proceedings.


M-H-, 26 I&N Dec. 46 (BIA 2012)

ID 3772 (PDF)

The holding in Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007), that an offense need not be an aggravated felony to be considered a particularly serious crime for purposes of barring asylum or withholding of removal, should be applied to cases within the jurisdiction of the United States Court of Appeals for the Third Circuit.


SANCHEZ-HERBERT, 26 I&N Dec. 43 (BIA 2012)

ID 3771 (PDF)

Where an alien fails to appear for a hearing because he has departed the United States, termination of the pending proceedings is not appropriate if the alien received proper notice of the hearing and is removable as charged.


DAVEY, 26 I&N Dec. 37 (BIA 2012)

ID 3770 (PDF)

(1) For purposes of section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8U.S.C. § 1227(a)(2)(B)(i) (2006), the phrase “a single offense involving possession for one’s own use of thirty grams or less of marijuana” calls for a circumstance-specific inquiry into the character of the alien’s unlawful conduct on a single occasion, not a categorical inquiry into the elements of a single statutory crime.

(2) An alien convicted of more than one statutory crime may be covered by the exception to deportability for an alien convicted of “a single offense involving possession for one’s own use of thirty grams or less ofmarijuana” if all the alien’s crimeswere closely related to or connected with a single incident in which the alien possessed 30 grams or less of marijuana for his or her own use, provided that none of those crimeswas inherently more serious than simple possession.


M-Z-M-R-, 26 I&N Dec. 28 (BIA 2012)

ID 3769 (PDF)

(1) In assessing an asylum applicant’s ability to internally relocate, an Immigration Judge must determine whether the applicant could avoid future persecution by relocating to another part of the applicant’s country of nationality and whether, under all the circumstances, it would be reasonable to expect the applicant to do so.

(2) For an applicant to be able to internally relocate safely, there must be an area of the country where the circumstances are substantially better than those giving rise to a well-founded fear of persecution on the basis of the original claim.

(3) If an applicant is able to internally relocate, an Immigration Judge should balance the factors identified at 8 C.F.R. § 1208.13(b)(3) (2012) in light of the applicable burden of proof to determine whether it would be reasonable under all the circumstances to expect the applicant to relocate.


LEAL, 26 I&N Dec. 20 (BIA 2012)

ID 3768 (PDF)

The offense of “recklessly endangering another person with a substantial risk of imminent death” in violation of section 13-1201(A) of the Arizona Revised Statutes is categorically a crime involving moral turpitude under the definition in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), even though Arizona law defines recklessness to encompass a subjective ignorance of risk resulting from voluntary intoxication.


Y-N-P-, 26 I&N Dec. 10 (BIA 2012)

ID 3767 (PDF)

An applicant for special rule cancellation of removal under section 240A(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(2) (2006), cannot utilize a waiver of inadmissibility under section 212(h) of the Act, 8 U.S.C. § 1182(h) (2006), to overcome the section 240A(b)(2)(A)(iv) bar resulting from inadmissibility under section 212(a)(2).


E-A-, 26 I&N Dec. 1 (BIA 2012)

ID 3766 (PDF)

(1) In assessing whether there are serious reasons for believing that an applicant for asylum or withholding of removal has committed a serious nonpolitical crime, an Immigration Judge should balance the seriousness of the criminal acts against the political aspect of the conduct to determine whether the criminal nature of the acts outweighs their political character.

(2) When considered together, the applicant’s actions as a member of a group that burned passenger buses and cars, threwstones, and disrupted the economic activity of merchants in the market, while pretending to be from the opposition party, reached the level of serious criminal conduct that, when weighed against its political nature, constituted a serious nonpolitical crime.

GUZMAN-GOMEZ, 24 I&N Dec. 824 (BIA 2009)

ID 3642 (PDF)

(1) The terms “child” and “parent” defined at section 101(c) of the Immigration and Nationality Act, 8 U.S.C. § 1101(c) (2006), do not encompass stepchildren and stepparents.

(2) A person born outside the United States cannot derive United States citizenship under section 320(a) of the Act, 8 U.S.C. § 1431(a) (2006), by virtue of his or her relationship to a nonadoptive stepparent.


CARDENAS ABREU, 24 I&N Dec. 795 (BIA 2009)

ID 3641 (PDF)

A pending late-reinstated appeal of a criminal conviction, filed pursuant to section 460.30 of the New York Criminal Procedure Law, does not undermine the finality of the conviction for purposes of the immigration laws.


HASHMI, 24 I&N Dec. 785 (BIA 2009)

ID 3640 (PDF)

(1) An alien’s unopposed motion to continue ongoing removal proceedings to await the adjudication of a pending family-based visa petition should generally be granted if approval of the visa petition would render him prima facie eligible for adjustment of status. Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), followed.

(2) In determining whether good cause exists to continue such proceedings, a variety of factors may be considered, including, but not limited to: (1) the Department of Homeland Security’s response to the motion to continue; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of status; (4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and any other relevant procedural factors.


MARTINEZ-MONTALVO, 24 I&N Dec. 778 (BIA 2009)

ID 3639 (PDF)

Under 8 C.F.R. §§ 245.2(a)(1) and 1245.2(a)(1)(ii) (2008), Immigration Judges have no jurisdiction to adjudicate an application filed by an arriving alien seeking adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended, with the limited exception of an alien who has been placed in removal proceedings after returning to the United States pursuant to a grant of advance parole to pursue a previously filed application. Matter of Artigas, 23 I&N Dec. 99 (BIA 2001), superseded.


ALMANZA, 24 I&N Dec. 771 (BIA 2009)

ID 3638 (PDF)

(1) An alien whose application for relief from removal was filed after the May 11, 2005, effective date of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 231 (“REAL ID Act”), has the burden to prove that he satisfies the applicable eligibility requirements and merits a favorable exercise of discretion under section 240(c)(4)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(4)(A) (2006), and must provide corroborating evidence requested by the Immigration Judge pursuant to section 240(c)(4)(B), unless it cannot be reasonably obtained

(2) An alien whose application for cancellation of removal under section 240A(b)(1) of the Act, 8 U.S.C. § 1229b(b)(1) (2006), is governed by the provisions of the REAL ID Act, and who has been convicted of an offense under a divisible criminal statute, has the burden to establish that the conviction was not pursuant to any part of the statute that reaches conduct involving moral turpitude, including the burden to produce corroborating conviction documents, such as a transcript of the criminal proceedings, as reasonably requested by the Immigration Judge. Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir. 2007), distinguished.

(3) An alien who has been convicted of a crime involving moral turpitude has been “convicted of an offense under” section 237(a)(2) of the Act, 8 U.S.C. § 1227(a)(2)(2006), and is therefore ineligible for cancellation of removal under section 240A(b)(1)(C), regardless of his status as an arriving alien or his eligibility for a petty offense exception under section 212(a)(2)(A)(ii)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (2006).


ZORILLA-VIDAL, 24 I&N Dec. 768 (BIA 2009)

ID 3637 (PDF)

Outside the jurisdiction of the United States Court of Appeals for the Ninth Circuit, a conviction for criminal solicitation under a State’s general purpose solicitation statute is a conviction for a violation of a law “relating to a controlled substance” under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2006), where the record of conviction reflects that the crime solicited is an offense relating to a controlled substance. Matter of Beltran, 20 I&N Dec. 521 (BIA 1992), reaffirmed. Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997), followed in jurisdiction only.


M-A-S-, 24 I&N Dec. 762 (BIA 2009)

ID 3636 (PDF)

An Immigration Judge may order an alien detained until departure as a condition of a grant of voluntary departure.


LOUISSAINT, 24 I&N Dec. 754 (BIA 2009)

ID 3635 (PDF)

(1) The categorical approach for determining if a particular crime involves moral turpitude set forth in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), requires the traditional categorical analysis, which was used by the United States Supreme Court in Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), and includes an inquiry into whether there is a “realistic probability” that the statute under which the alien was convicted would be applied to reach conduct that does not involve moral turpitude.

(2) A conviction for burglary of an occupied dwelling in violation of section 810.02(3)(a) of the Florida Statutes is categorically a conviction for a crime involving moral turpitude. Matter of M-, 2 I&N Dec. 721 (BIA; A.G. 1946), distinguished.


AGUILAR-AQUINO, 24 I&N Dec. 747 (BIA 2009)

ID 3634 (PDF)

(1) “Custody,” as the term is used in the regulation at 8 C.F.R. § 1236.1(d)(1) (2008) relatingto requests for amelioration of the terms of release from custody, requires actual physicalrestraint or confinement within a given space.

(2) The respondent, who requested “amelioration of the terms of release” from an Immigration Judge following his release from detention by the Department of HomelandSecurity with conditions requiring an electronic monitoring device and home confinement,was “released from custody” within the meaning of 8 C.F.R. § 1236.1(d)(1).

(3) The Immigration Judge lacked jurisdiction to consider the respondent’s request foramelioration of the terms of his release under 8 C.F.R. § 1236.1(d)(1) where therespondent had been “released from custody” more than 7 days prior to his request.


ROSENBERG, 24 I&N Dec. 744 (BIA 2009)

ID 3633 (PDF)

(1) A claim by an attorney who is currently suspended from practice before the United States Court of Appeals for the Ninth Circuit that he is in good standing before the California State Bar is not a basis to set aside an order of the Board of Immigration Appeals suspending him from practice before the Board, the Immigration Courts, and the Department of Homeland Security.

(2) It is not in the interest of justice to set aside the Board’s immediate suspension order where the attorney failed to object to the Ninth Circuit Appellate Commissioner’s Report and Recommendation and is therefore not likely to prevail on the merits of the attorney discipline case, given the heavy burden of proof under 8 C.F.R. § 1003.103(b)(2) (2008).


COMPEAN, BANGALY & J-E-C-, 24 I&N Dec. 710 (A.G. 2009), vacated, 25 I&N Dec. 1 (A.G. 2009)

ID 3632 (PDF)

(1) Aliens in removal proceedings have a statutory privilege to retain private counsel at no expense to the Government.

(2) Aliens in removal proceedings have no right to counsel, including Government-appointed counsel, under the Sixth Amendment of the Constitution because the Sixth Amendment applies only to criminal proceedings and removal proceedings are civil in nature.

(3) Aliens in removal proceedings also have no right to counsel, including Government-appointed counsel, under the Fifth Amendment. Although the Fifth Amendment applies to removal proceedings, its guarantee of due process does not include a general right to counsel, or a specific right to effective assistance of counsel, and is violated only by state action, namely, action that can be legally attributed to the Government. Lawyers privately retained by aliens in removal proceedings are not state actors for due process purposes. Accordingly, there is no Fifth Amendment right to effective assistance of counsel in removal proceedings. To the extent the Board’s decisions in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), and Matter of Assaad, 23 I&N Dec. 553 (BIA 2003), are inconsistent with this conclusion, those decisions are overruled.

(4) Although the Constitution and the immigration laws do not entitle an alien in removal proceedings to relief for his lawyer’s mistakes, the Department of Justice may, as a matter of administrative grace, reopen removal proceedings where an alien shows that he was prejudiced by the actions of private counsel.

(5) There is a strong public interest in ensuring that a lawyer’s deficiencies do not affirmatively undermine the fairness and accuracy of removal proceedings. At the same time, there is a strong public interest in the expeditiousness and finality of removal proceedings. On balance, these interests justify allowing the Board to reopen removal proceedings in the extraordinary case where a lawyer’s deficient performance likely changed the outcome of an alien’s initial removal proceedings. In addition, they call for a set of standards and requirements that will allow the Board to resolve most claims expeditiously and on the basis of an alien’s motion to reopen and accompanying on counsel’s allegedly deficient performance is, in each case, committed to the discretion of the Board or the immigration judge.

(6) The deficient performance of counsel claim extends only to the conduct of a lawyer, an accredited representative, or a non-lawyer that the alien reasonably but erroneously believed to be a lawyer who was retained to represent the alien in the proceedings.

(7) An alien who seeks to reopen his removal proceedings based on deficient performance of counsel bears the burden of establishing (i) that his lawyer’s failings were egregious; (ii) that in cases where the alien moves to reopen beyond the applicable time limit, he exercised due diligence in discovering and seeking to cure his lawyer’s alleged deficient performance; and (iii) that he suffered prejudice from the lawyer’s errors, namely, that but for the deficient performance, it is more likely than not that the alien would have been entitled to the ultimate relief he was seeking.

(8) An alien who seeks to reopen his removal proceedings based on deficient performance of counsel must submit a detailed affidavit setting forth the facts that form the basis of the deficient performance of counsel claim. He also must attach to his motion five documents or sets of documents: (i) a copy of his agreement, if any, with the lawyer whose performance he alleges was deficient; (ii) a copy of a letter to his former lawyer specifying the lawyer’s deficient performance and a copy of the lawyer’s response, if any; (iii) a completed and signed complaint addressed to, but not necessarily filed with, the appropriate State bar or disciplinary authority; (iv) a copy of any document or evidence, or an affidavit summarizing any testimony, that the alien alleges the lawyer failed to submit previously; and (v) a statement by new counsel expressing a belief that the performance of former counsel fell below minimal standards of professional competence. If any of these documents is unavailable, the alien must explain why. If any of these documents is missing rather than nonexistent, the alien must summarize the document’s contents in his affidavit. Matter of Lozada, superseded.

(9) The Board’s discretion to reopen removal proceedings on the basis of a lawyer’s deficient performance is not limited to conduct that occurred during the agency proceedings. The Board may reopen on the basis of deficient performance that occurred subsequent to the entry of a final order of removal if the standards established for a deficient performance of counsel claim are satisfied.


SILVA-TREVINO, 24 I&N Dec. 687 (A.G. 2008)

ID 3631 (PDF)

(1) To determine whether a conviction is for a crime involving moral turpitude, immigration judges and the Board of Immigration Appeals should: (1) look to the statute of conviction under the categorical inquiry and determine whether there is a “realistic probability” that the State or Federal criminal statute pursuant to which the alien was convicted would be applied to reach conduct that does not involve moral turpitude; (2) if the categorical inquiry does not resolve the question, engage in a modified categorical inquiry and examine the record of conviction, including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, and the plea transcript; and (3) if the record of conviction is inconclusive, consider any additional evidence deemed necessary or appropriate to resolve accurately the moral turpitude question.

(2) It is proper to make a categorical finding that a defendant’s conduct involves moral turpitude when that conduct results in conviction on the charge of intentional sexual contact with a person the defendant knew or should have known was a child.

(3) To qualify as a crime involving moral turpitude for purposes of the Immigration and Nationality Act, a crime must involve both reprehensible conduct and some degree of scienter, whether specific intent, deliberateness, willfulness, or recklessness.


F-P-R-, 24 I&N Dec. 681 (BIA 2008)

ID 3630 (PDF)

For purposes of determining if an alien’s application for asylum was timely filed within 1 year of arrival in the United States pursuant to section 208(a)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a)(2)(B) (2006), the term “last arrival” in 8 C.F.R. § 1208.4(a)(2)(ii) (2008) refers to the alien’s most recent arrival in the United States from a trip abroad.


C-R-C-, 24 I&N Dec. 677 (BIA 2008)

ID 3629 (PDF)

In absentia removal proceedings were reopened where the respondent overcame the presumption of delivery of a Notice to Appear that was sent by regular mail by submitting an affidavit stating that he did not receive the notice and that he has continued to reside at the address to which it was sent, as well as other circumstantial evidence indicating that he had an incentive to appear, and by exercising due diligence in promptly seeking to redress the situation by obtaining counsel and requesting reopening of the proceedings. Dominguez v. United States Attorney General, 284 F.3d 1258 (11th Cir. 2002), distinguished.


M-R-A-, 24 I&N Dec. 665 (BIA 2008)

ID 3628 (PDF)

(1) Where a Notice to Appear or Notice of Hearing is properly addressed and sent by regular mail according to normal office procedures, there is a presumption of delivery, but it is weaker than the presumption that applies to documents sent by certified mail. Matter of Grijalva, 21 I&N Dec. 27 (BIA 1995), distinguished.

(2) When an Immigration Judge adjudicates a respondent’s motion to reopen to rescind an in absentia order of removal based on a claim that a notice sent by regular mail to the most recent address provided was not received, all relevant evidence submitted to overcome the weaker presumption of delivery must be considered, including but not limited to factors such as affidavits from the respondent and others who are knowledgeable about whether notice was received, whether due diligence was exercised in seeking to redress the situation, any prior applications for relief that would indicate an incentive to appear, and the respondent’s prior appearance at immigration proceedings, if applicable.

(3) The respondent overcame the presumption of delivery of a Notice of Hearing that was sent by regular mail where he submitted affidavits indicating that he did not receive the notice, had previously filed an asylum application and appeared for his first removal hearing, and exercised due diligence in promptly obtaining counsel and requesting reopening of the proceedings.


FEDERISO, 24 I&N Dec. 661 (BIA 2008)

ID 3627 (PDF)

To be eligible for a waiver of removal under section 237(a)(1)(H)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(H)(i) (2006), an alien must establish a qualifying relationship to a living relative.


ARMENDAREZ, 24 I&N Dec. 646 (BIA 2008)

ID 3626 (PDF)

Pursuant to 8 C.F.R. § 1003.2(d) (2008), the Board of Immigration Appeals lacks authority to reopen removal, deportation, or exclusion proceedings–whether on motion of an alien or sua sponte–if the alien has departed the United States after those administrative proceedings have been completed.


M-F-W- & L-G-, 24 I&N Dec. 633 (BIA 2008)

ID 3625 (PDF)

(1) An act that thwarts the goals of China’s family planning policy, such as removing an intrauterine device (“IUD”) or failing to attend a mandatory gynecological appointment, may constitute “resistance” to the policy.

(2) The insertion of an IUD does not rise to the level of harm necessary to constitute “persecution,” absent some aggravating circumstances.

(3) Generally, where the insertion or reinsertion of an IUD is carried out as part of a routine medical procedure, an alien will not be able to establish the required nexus, i.e., that the procedure was or would be because of her resistance to China’s family planning policy.


R-A-, 24 I&N Dec. 629 (A.G. 2008)

ID 3624 (PDF)

The Attorney General lifted the stay previously imposed on the Board of Immigration Appeals and remanded the case for reconsideration of the issues presented with respect to asylum claims based on domestic violence.


GUADARRAMA, 24 I&N Dec. 625 (BIA 2008)

ID 3623 (PDF)

An alien who has made a false claim of citizenship may be considered a person who is not of good moral character, but the catch-all provision of section 101(f) of the Immigration and Nationality Act, 8 U.S.C. § 1101(f) (2006), does not automatically mandate such a finding.


A-T-, 24 I&N Dec. 617 (A.G. 2008)

ID 3622 (PDF)

The Attorney General vacated the decision of the Board of Immigration Appeals and remanded the record for reconsideration of questions relating to the respondent’s eligibility for withholding of removal pursuant to 8 C.F.R. § 1208.16(b)(1) (2008) based on her claim that she has been subjected to female genital mutilation.


NWOZUZU, 24 I&N Dec. 609 (BIA 2008)

ID 3621 (PDF)

To obtain derivative citizenship under former section 321(a) of the Immigration and Nationality Act, 8 U.S.C. § 1432(a) (1994), an alien must acquire the status of an alien lawfully admitted for permanent residence while he or she is under the age of 18 years.


SAYSANA, 24 I&N Dec. 602 (BIA 2008)

ID 3620 (PDF)

(1) The language of section 236(c)(1) of the Immigration and Nationality Act, 8 U.S.C.§ 1226(c)(1) (2006), does not support limiting the non-DHS custodial setting solely to criminal custody tied to the basis for detention under that section.

(2) The respondent is subject to mandatory detention following his release from non-DHS custody resulting from his 2005 arrest for failure to register as a sex offender, even though that arrest did not lead to a conviction.


RAMIREZ-VARGAS, 24 I&N Dec. 599 (BIA 2008)

ID 3619 (PDF)

A parent’s period of residence in the United States cannot be imputed to a child for purposes of calculating the 7 years of continuous residence required to establish eligibility for cancellation of removal under section 240A(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a)(2) (2006).


E-A-G-, 24 I&N Dec. 591 (BIA 2008)

ID 3618 (PDF)

(1) The respondent, a young Honduran male, failed to establish that he was a member of a particular social group of “persons resistant to gang membership,” as the evidence failed to establish that members of Honduran society, or even gang members themselves, would perceive those opposed to gang membership as members of a social group.

(2) Because membership in a criminal gang cannot constitute membership in a particular social group, the respondent could not establish that he was a member of a particular social group of “young persons who are perceived to be affiliated with gangs” based on the incorrect perception by others that he is such a gang member.


S-E-G-, 24 I&N Dec. 579 (BIA 2008)

ID 3617 (PDF)

Neither Salvadoran youth who have been subjected to recruitment efforts by the MS-13 gang and who have rejected or resisted membership in the gang based on their own personal, moral, and religious opposition to the gang’s values and activities nor the family members of such Salvadoran youth constitute a “particular social group.”


ROTIMI, 24 I&N Dec. 567 (BIA 2008)

ID 3616 (PDF)

An alien has not “lawfully resided” in the United States for purposes of qualifying for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2006), during any periods in which the alien was an applicant for asylum or for adjustment of status and lacked any other basis on which to claim lawful residence.


EAC, INC., 24 I&N Dec. 563 (BIA 2008) (Accreditation)

ID 3615 (PDF)

(1) All accredited representatives on the staff of a recognized organization must have a broad knowledge of immigration law and procedure, even if the organization only intends to provide limited services through one or more partially accredited representatives.

(2) In order to show that a proposed accredited representative has the broad knowledge and experience in immigration law and procedure required by 8 C.F.R. § 1292.2(d) (2008), a recognized organization should submit the individual’s resume, letters of recommendation, and evidence of immigration training completed, including detailed descriptions of the topics addressed.


EAC, INC., 24 I&N Dec. 556 (BIA 2008) (Recognition)

ID 3614 (PDF)

(1) The process of recognition is designed to evaluate the qualifications of only those nonprofit organizations that provide knowledgeable legal assistance to low-income aliens in matters involving immigration law and procedure.

(2) In order to establish that it has adequate knowledge of immigration law and procedure, an organization seeking recognition must have sufficient access to legal resources, which may include electronic or internet access, as well as resources provided by a law library.

(3) An organization seeking recognition must show that it has either a local attorney who is on the staff, offering pro bono services, or providing consultation under a formal arrangement; a fully accredited representative; or a partially accredited representative with access to additional expertise.

(4) A recognized organization that does not offer a full range of immigration legal services or whose staff is not sufficiently experienced to handle more complex immigration issues must have the ability to discern when it should direct aliens to seek other legal assistance.


GONZALEZ-ZOQUIAPAN, 24 I&N Dec. 549 (BIA 2008)

ID 3613 (PDF)

(1) A single act of soliciting prostitution on one’s own behalf does not fall within section 212(a)(2)(D)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(D)(ii) (2006), which provides for the inadmissibility of an alien who “procured . . . prostitutes or persons for the purpose of prostitution.” (2) The respondent’s conviction for disorderly conduct relating to prostitution in violation of section 647(b) of the California Penal Code does not render him inadmissible under section 212(a)(2)(D)(ii) of the Act.


HINES, 24 I&N Dec. 544 (BIA 2008)

ID 3612 (PDF)

(1) Under Jamaican law, the sole means of “legitimation” of a child born out of wedlock is the marriage of the child’s natural parents.Matter of Clahar, 18 I&N Dec. 1 (BIA 1981), overruled.

(2) The respondent was born in Jamaica of natural parents who never married, and therefore his paternity was not established “by legitimation” so as to disqualify him from deriving United States citizenship pursuant to former section 321(a)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1432(a)(3) (1988), through his mother’s naturalization in 1991.


J-S-, 24 I&N Dec. 520 (A.G. 2008)

ID 3611 (PDF)

(1) The spouse of a person who has been physically subjected to a forced abortion orsterilization procedure is not per se entitled to refugee status under section 601(a) of theIllegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-689, codified at section 101(a)(42) ofthe Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2000). The holdings to the contrary in Matter of S-L-L-, 24 I&N Dec. 1 (BIA 2006); Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997), overruled.

(2) Persons who have not physically undergone a forced abortion or sterilization proceduremay still qualify as a refugee on account of a well-founded fear of persecution of beingforced to undergo such a procedure, or on account of persecution or a well-founded fearof persecution for failure or refusal to undergo such a procedure or for other resistance toa coercive population control program, or on other grounds enumerated in the Immigrationand Nationality Act


VELAZQUEZ-HERRERA, 24 I&N Dec. 503 (BIA 2008)

ID 3610 (PDF)

(1) For purposes of the ground of removal set forth at section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2000), the term “crime of child abuse” means any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a person under 18 years old or that impairs such a person’s physical or mental well-being, including sexual abuse or exploitation.

(2) Whether an alien is removable on the basis of a conviction for a “crime of child abuse” is determined by the elements of the alien’s offense, as reflected in the statutory definition of the crime or admissible portions of the conviction record.


V-K-, 24 I&N Dec. 500 (BIA 2008)

ID 3609 (PDF)

The Board of Immigration Appeals reviews de novo an Immigration Judge’s prediction or finding regarding the likelihood that an alien will be tortured, because it relates to whether the ultimate statutory requirement for establishing eligibility for relief from removal has been met and is therefore a mixed question of law and fact, or a question of judgment.


A-S-B-, 24 I&N Dec. 493 (BIA 2008)

ID 3608 (PDF)

(1) Under 8 C.F.R. § 1003.1(d)(3) (2008), the Board of Immigration Appeals should defer to the factual findings of an Immigration Judge, unless they are clearly erroneous, but it retains independent judgment and discretion, subject to applicable governing standards, regarding pure questions of law and the application of a particular standard of law to those facts.

(2) In determining whether established facts are sufficient to meet a legal standard, such as “well-founded fear,” the Board has the authority to weigh the evidence in a manner different from that accorded by the Immigration Judge, or to conclude that the foundation for the Immigration Judge’s legal conclusions was insufficient or otherwise not supported by the evidence of record.


RIVERA-VALENCIA, 24 I&N Dec. 484 (BIA 2008)

ID 3607 (PDF)

A judgment of guilt that has been entered by a general court-martial of the United States Armed Forces qualifies as a “conviction” within the meaning of section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2000).


KODWO, 24 I&N Dec. 479 (BIA 2008)

ID 3606 (PDF)

While a court order remains the preferred method of establishing the dissolution of a customary tribal marriage under Ghanaian law, affidavits executed by the heads of household, i.e., the fathers of the couple, that meet specified evidentiary requirements may be sufficient to establish a divorce for immigration purposes. Matter of Kumah,19 I&N Dec. 290 (BIA 1985), modified.


S-K-, 24 I&N Dec. 475 (BIA 2008)

ID 3605 (PDF)

(1) Section 691(b) of the Consolidated Appropriations Act, 2008, Division J of Pub. L. No. 110-161, 121 Stat. 1844, 2365 (enacted Dec. 26, 2007), provides that for purposes of section 212(a)(3)(B) of the Immigration and Nationality Act, 8 U.S.C.A. § 1182(a)(3)(B) (West 2005), certain groups, including the Chin National Front, “shall not be considered to be a terrorist organization on the basis of any act or event occurring before the date of enactment of this section.”

(2) The Attorney General’s remand in Matter of S-K-, 24 I&N Dec. 289 (A.G. 2007), does not affect the precedential nature of the conclusions of the Board of Immigration Appeals in Matter of S-K-, 23 I&N Dec. 936 (BIA 2006), regarding the applicability and interpretation of the material support provisions in section 212(a)(3)(B)(iv)(VI) of the Act.


GONZALEZ-MURO, 24 I&N Dec. 472 (BIA 2008)

ID 3604 (PDF)

A denaturalized alien who committed crimes while a lawful permanent resident and concealed them during the naturalization application process is removable on the basis of the crimes, even though the alien was a naturalized citizen at the time of conviction. Costello v. INS, 376 U.S. 120 (1964), distinguished.


BAIRES, 24 I&N Dec. 467 (BIA 2008)

ID 3603 (PDF)

A child who has satisfied the statutory conditions of former section 321(a) of the Immigration and Nationality Act, 8 U.S.C. § 1432(a) (1988), before the age of 18 years has acquired United States citizenship, regardless of whether the naturalized parent acquired legal custody of the child before or after the naturalization.


S-A-K- and H-A-H-, 24 I&N Dec. 464 (BIA 2008)

ID 3602 (PDF)

A mother and daughter from Somalia who provided sufficient evidence of past persecution in the form of female genital mutilation with aggravated circumstances are eligible for a grant of asylum based on humanitarian grounds pursuant to 8 C.F.R § 1208.13(b)(1)(iii)(A) (2007), regardless of whether they can establish a well-founded fear of future persecution. Matter of Chen, 20 I&N Dec. 16 (BIA 1989), followed.


CABRERA, 24 I&N Dec. 459 (BIA 2008)

ID 3601 (PDF)

The imposition of costs and surcharges in the criminal sentencing context constitutes a form of “punishment” or “penalty” for purposes of establishing that an alien has suffered a “conviction” within the meaning of section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2000).


ARUNA, 24 I&N Dec. 452 (BIA 2008)

ID 3600 (PDF)

Absent controlling precedent to the contrary, a State law misdemeanor offense of conspiracy to distribute marijuana qualifies as an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000), where its elements correspond to the elements of the Federal felony offense of conspiracy to distribute an indeterminate quantity of marijuana, as defined by 21 U.S.C. §§ 841(a)(1), (b)(1)(D), and 846 (2000 & Supp. IV 2004).


D-I-M-, 24 I&N Dec. 448 (BIA 2008)

ID 3599 (PDF)

(1) When evaluating an application for asylum, the Immigration Judge must make a specific finding that the applicant has or has not suffered past persecution based on a statutorily enumerated ground and then apply the regulatory framework at 8 C.F.R. § 1208.13(b)(1) (2007).

(2) If the applicant has established past persecution, there is a presumption of a well-founded fear of persecution in the future and the burden shifts to the Department of Homeland Security to prove by a preponderance of the evidence that there are changed country conditions, or that the applicant could avoid future persecution by relocating, and that it would be reasonable to do so under all of the circumstances.


KELLY, 24 I&N Dec. 446 (BIA 2008)

ID 3598 (PDF)

(1) If an Immigration Judge includes an attachment to a decision, particular care must be taken to insure that a complete record is preserved. (2) An attachment to an Immigration Judge’s oral decision should be individualized with the respondent’s name, the alien registration number, and the date of the decision, and it should be appended to the written memorandum summarizing the oral decision, which should reflect that there is an attachment.


ANIFOWOSHE, 24 I&N Dec. 442 (BIA 2008)

ID 3597 (PDF)

An alien child who was adopted under the age of 18, and whose natural sibling was subsequently adopted by the same adoptive parent or parents while under the age of 16, may qualify as a “child” within the meaning of section 101(b)(1)(E) of the Immigration and Nationality Act, 8 U.S.C.A. § 1101(b)(1)(E) (West 2008), even if the child’s adoption preceded that of the younger sibling


GARCIA-MADRUGA, 24 I&N Dec. 436 (BIA 2008)

ID 3596 (PDF)

(1) A “theft offense” within the definition of an aggravated felony in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2000), ordinarily requires the taking of, or exercise of control over, property without consent and with the criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent. Matter of V-Z-S-, 22 I&N Dec. 1338 (BIA 2000), clarified.

(2) The respondent’s welfare fraud offense in violation of section 40-6-15 of the General Laws of Rhode Island is not a “theft offense” under section 101(a)(43)(G) of the Act.


I-S- & C-S-, 24 I&N Dec. 432 (BIA 2008)

ID 3595 (PDF)

When an Immigration Judge issues a decision granting an alien’s application for withholding of removal under section 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3) (2000), without a grant of asylum, the decision must include an explicit order of removal.


MARTINEZ-ZAPATA, 24 I&N Dec. 424 (BIA 2007)

ID 3594 (PDF)

(1) Any fact (including a fact contained in a sentence enhancement) that serves to increase the maximum penalty for a crime and that is required to be found by a jury beyond a reasonable doubt, if not admitted by the defendant, is to be treated as an element of the underlying offense, so that a conviction involving the application of such an enhancement is a conviction for the enhanced offense. Matter of Rodriguez-Cortes, 20 I&N Dec. 587 (BIA 1992), superseded.

(2) The exception under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2000), for an alien convicted of a single offense of simple possession of 30 grams or less of marijuana does not apply to an alien whose conviction was enhanced by virtue of his possession of marijuana in a “drug-free zone,” where the enhancement factor increased the maximum penalty for the underlying offense and had to be proved beyond a reasonable doubt to a jury under the law of the convicting jurisdiction. Matter of Moncada, 24 I&N Dec. 62 (BIA 2007), clarified.


THOMAS, 24 I&N Dec. 416 (BIA 2007)

ID 3593 (PDF)

The respondent’s 2003 Florida offense involving the simple possession of marijuana does not qualify as an “aggravated felony” by virtue of its correspondence to the Federal felony of “recidivist possession,” even though it was committed after a prior “conviction” for a “drug, narcotic, or chemical offense” became “final” within the meaning of 21 U.S.C. § 844(a) (2000), because the respondent’s conviction for that 2003 offense did not arise from a State proceeding in which his status as a recidivist drug offender was either admitted or determined by a judge or jury. Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007), followed.


CARACHURI-ROSENDO, 24 I&N Dec. 382 (BIA 2007)

ID 3592 (PDF)

(1) Decisional authority from the Supreme Court and the controlling Federal circuit court of appeals is determinative of whether a State drug offense constitutes an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000), by virtue of its correspondence to the Federal felony offense of “recidivist possession,” as defined by 21 U.S.C. § 844(a) (2000).Matter of Yanez, 23 I&N Dec. 390 (BIA 2002), followed.

(2) Controlling precedent of the United States Court of Appeals for the Fifth Circuit dictates that the respondent’s Texas conviction for alprazolam possession qualifies as an “aggravated felony” conviction by virtue of the fact that the underlying alprazolam possession offense was committed after the respondent’s prior State “conviction” for a “drug, narcotic, or chemical offense” became “final” within the meaning of 21 U.S.C. § 844(a).

(3) Absent controlling authority regarding the “recidivist possession” issue, an alien’s State conviction for simple possession of a controlled substance will not be considered an aggravated felony conviction on the basis of recidivism unless the alien’s status as a recidivist drug offender was either admitted by the alien or determined by a judge or jury in connection with a prosecution for that simple possession offense.


LEMUS, 24 I&N Dec. 373 (BIA 2007)

ID 3591 (PDF)

(1) An alien who is unlawfully present in the United States for a period of 1 year, departs the country, and then seeks admission within 10 years of the date of his departure from the United States, is inadmissible under section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(B)(i)(II) (2000), even if the alien’s departure was not made pursuant to an order of removal and was not a voluntary departure in lieu of being subject to removal proceedings or at the conclusion of removal proceedings.

(2) Adjustment of status under section 245(i) of the Act, 8 U.S.C. § 1255(i) (2000), is unavailable to an alien who is inadmissible under section 212(a)(9)(B)(i)(II) of the Act.


BRIONES, 24 I&N Dec. 355 (BIA 2007)

ID 3590 (PDF)

(1) Section 212(a)(9)(C)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9)(C)(i)(I) (2000), covers recidivist immigration violators, so to be inadmissible under that section, an alien must depart the United States after accruing an aggregate period of “unlawful presence” of more than 1 year and thereafter reenter, or attempt to reenter, the United States without being admitted.

(2) Adjustment of status under section 245(i) of the Act, 8 U.S.C. § 1255(i) (2000), is not available to an alien who is inadmissible under section 212(a)(9)(C)(i)(I) of the Act.


C-W-L-, 24 I&N Dec. 346 (BIA 2007)

ID 3589 (PDF)

An alien who is subject to a final order of removal is barred by both statute and regulation from filing an untimely motion to reopen removal proceedings to submit a successive asylum application under section 208(a)(2)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a)(2)(D) (2000), based on changed personal circumstances.


N-A-M-, 24 I&N Dec. 336 (BIA 2007)

ID 3588 (PDF)

(1) In order to be considered a particularly serious crime under section 241(b)(3)(B)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)(B)(ii) (2000), an offense need not be an aggravated felony under section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (2000 & Supp. IV 2004).

(2) Once the elements of an offense are found to potentially bring it within the ambit of a particularly serious crime, all reliable information may be considered in determining whether the offense constitutes a particularly serious crime, including but not limited to the record of conviction and sentencing information.


SINGH, 24 I&N Dec. 331 (BIA 2007)

ID 3587 (PDF)

There is no conflict between section 216(c)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1186a(c)(4) (2000), and its implementing regulation at 8 C.F.R. § 1216.5(e)(1) (2007) where both provide the same start date for the circumstances to be considered in determining a conditional permanent resident’s application for an extreme hardship waiver and only the statute provides an end date for the relevant period.


S-I-K-, 24 I&N Dec. 324 (BIA 2007)

ID 3586 (PDF)

An alien convicted of conspiracy is removable as an alien convicted of an aggravated felony within the meaning of sections 101(a)(43)(M)(i) and (U) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(M)(i) and (U) (2000), where the substantive crime that was the object of the conspiracy was an offense that involved “fraud or deceit” and where the potential loss to the victim or victims exceeded $10,000.


BABAISAKOV, 24 I&N Dec. 306 (BIA 2007)

ID 3585 (PDF)

(1) A single ground for removal may require proof of a conviction tied to the statutory elements of a criminal offense, as well as proof of an additional fact or facts that are not tied to the statutory elements of any such offense.

(2) When a removal charge depends on proof of both the elements leading to a conviction and some nonelement facts, the nonelement facts may be determined by means of evidence beyond the limited “record of conviction” that may be considered by courts employing the “categorical approach,” the “modified categorical approach,” or a comparable “divisibility analysis,” although the record of conviction may also be a suitable source of proof, depending on the circumstances.

(3) Section 101(a)(43)(M)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(M)(i) (2000), which defines the term “aggravated felony” to mean “an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,” depends on proof of both a conviction having an element of fraud or deceit and the nonelement fact of a loss exceeding $10,000 that is tied to the conviction.

(4) Because the phrase “in which the loss to the victim or victims exceeds $10,000” is not tied to an element of the fraud or deceit offense, the loss determination is not subject to the limitations of the categorical approach, the modified categorical approach, or a divisibility analysis and may be proved by evidence outside the record of conviction, provided that the loss is still shown to relate to the conduct of which the person was convicted and, for removal purposes, is proven by clear and convincing evidence.

(5) The Immigration Judge erred in declining to consider a presentence investigation report as proof of victim loss because of his mistaken belief that he was restricted to consideration of the respondent ‘s record of conviction.


A-T-, 24 I&N Dec. 296 (BIA 2007), vacated, 24 I&N Dec. 617 (A.G. 2008)

ID 3584 (PDF)

(1) Because female genital mutilation (“FGM”) is a type of harm that generally is inflicted only once, the procedure itself will normally constitute a “fundamental change in circumstances” such that an asylum applicant no longer has a well-founded fear of persecution based on the fear that she will again be subjected to FGM.

(2) Unlike forcible sterilization, a procedure that also is performed only once but has lasting physical and emotional effects, FGM has not been specifically identified as a basis for asylum within the definition of a “refugee” under section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2000), so FGM does not qualify as “continuing persecution.” Matter of Y-T-L-, 23 I&N Dec. 601 (BIA 2003), distinguished.


JEAN-JOSEPH, 24 I&N Dec. 294 (BIA 2007)

ID 3583 (PDF)

Where an attorney who was suspended from practice before the Board of Immigration Appeals, the Immigration Courts, and the Department of Homeland Security pending the final disposition of his attorney discipline proceeding sought reinstatement because he had been reinstated to the Florida Bar, but he had practiced before the Miami Immigration Court while under the Board’s immediate suspension order, his motion was denied, and he was instead suspended for 120 days, twice the recommended discipline in the Notice of Intent To Discipline.


KRIVONOS, 24 I&N Dec. 292 (BIA 2007)

ID 3582 (PDF)

A motion for reinstatement to practice filed by an attorney who was expelled from practice before the Board of Immigration Appeals, the Immigration Courts, and the Department of Homeland Security as a result of his conviction for immigration-related fraud, but who was reinstated to practice law in New York, was denied because he failed to show that he possessed the moral and professional qualifications to be reinstated to practice and that his reinstatement would not be detrimental to the administration of justice.


S-K-, 24 I&N Dec. 289 (A.G. 2007)

ID 3581 (PDF)

The Attorney General remanded the case for the Board of Immigration Appeals to consider if further proceedings are appropriate in light of the February 20, 2007, determination of the Secretary of Homeland Security that section 212(a)(3)(B)(iv)(VI) of the Immigration and Nationality Act, 8 U.S.C.A. § 1182(a)(3)(B)(iv)(VI) (West 2005), shall not apply with respect to material support provided to the Chin National Front/Chin National Army by an alien who satisfies certain specified criteria.


SHAH, 24 I&N Dec. 282 (BIA 2007)

ID 3580 (PDF)

(1) An attorney who knowingly makes a false statement of material fact or law or willfully misleads any person concerning a material and relevant matter relating to a case is subject to discipline.

(2) It is in the public interest to discipline an attorney who knowingly and willfully misled the United States Citizenship and Immigration Services by presenting an improperly obtained certified Labor Condition Application under his signature in support of a nonimmigrant worker petition.


A-K-, 24 I&N Dec. 275 (BIA 2007)

ID 3579 (PDF)

An alien may not establish eligibility for asylum or withholding of removal based solely on fear that his or her daughter will be harmed by being forced to undergo female genital mutilation upon returning to the alien’s home country.


CHAVEZ, 24 I&N Dec. 272 (BIA 2007)

ID 3578 (PDF)

(1) An alien seeking to reopen proceedings to establish that a conviction has been vacated bears the burden of proving that the conviction was not vacated solely for immigration purposes.

(2) Where the respondent presented no evidence to prove that his conviction was not vacated solely for immigration purposes, he failed to meet his burden of showing that his motion to reopen should be granted.


JARA RIERO AND JARA ESPINOL, 24 I&N Dec. 267 (BIA 2007)

ID 3577 (PDF)

An alien seeking to establish eligibility for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2000), on the basis of a marriage-based visa petition must prove that the marriage was bona fide at its inception in order to show that the visa petition was “meritorious in fact” pursuant to 8 C.F.R. § 1245.10(a)(3) (2007).


J-Y-C, 24 I&N Dec. 260 (BIA 2007)

ID 3576 (PDF)

(1) Under section 101(a)(3) of the REAL ID Act of 2005, Div. B of Pub. L. No. 109-13, 119 Stat. 302, 303 (to be codified at section 208(b)(1)(B)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(B)(iii)), a trier of fact may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his account, and inconsistencies in statements, without regard to whether they go to the heart of the asylum claim.

(2) The Immigration Judge properly considered the totality of the circumstances in finding that the respondent lacked credibility based on his demeanor, his implausible testimony, the lack of corroborating evidence, and his inconsistent statements, some of which did not relate to the heart of his claim.


S-Y-G-, 24 I&N Dec. 247 (BIA 2007)

ID 3575 (PDF)

In her motion to reopen proceedings to pursue her asylum claim, the applicant did not meet the heavy burden to show that her proffered evidence is material and reflects “changed circumstances arising in the country of nationality” to support the motion where the documents submitted reflect general birth planning policies in her home province that do not specifically show any likelihood that she or similarly situated Chinese nationals will be persecuted as a result of the birth of a second child in the United States.


SOLON, 24 I&N Dec. 239 (BIA 2007)

ID 3574 (PDF)

The offense of assault in the third degree in violation of section 120.00(1) of the New York Penal Law, which requires both specific intent and physical injury, is a crime involving moral turpitude.


SEJAS, 24 I&N Dec. 236 (BIA 2007)

ID 3573 (PDF)

The offense of assault and battery against a family or household member in violation of section 18.2-57.2 of the Virginia Code is not categorically a crime involving moral turpitude.


ESCOBAR, 24 I&N Dec. 231 (BIA 2007)

ID 3572 (PDF)

A parent’s lawful permanent resident status cannot be imputed to a child for purposes of calculating the 5 years of lawful permanent residence required to establish eligibility for cancellation of removal under section 240A(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a)(1) (2000).


R- D-, 24 I&N Dec. 221 (BIA 2007)

ID 3571 (PDF)

(1) An alien who leaves the United States and is admitted to Canada to seek refugee status has made a departure from the United States.

(2) An alien returning to the United States after the denial of an application for refugee status in Canada is seeking admission into the United States and is therefore an arriving alien under 8 C.F.R. § 1001.1(q) (2007).


GONZALEZ-SILVA, 24 I&N Dec. 218 (BIA 2007)

ID 3570 (PDF)

An alien whose conviction precedes the effective date of section 237(a)(2)(E) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E) (2000), is not “convicted of an offense under” that section and therefore is not barred from establishing eligibility for cancellation of removal by section 240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C) (2000).


J-B-N- & S-M-, 24 I&N Dec. 208 (BIA 2007)

ID 3569 (PDF)

Under section 101(a)(3) of the REAL ID Act of 2005, Div. B of Pub. L. No. 109-13, 119 Stat. 302, 303, in mixed motive asylum cases, an applicant must prove that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for the claimed persecution.


ABOSI, 24 I&N Dec. 204 (BIA 2007)

ID 3568 (PDF)

A returning lawful permanent resident seeking to overcome a ground of inadmissibility is not required to apply for adjustment of status in conjunction with a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2000).


J-H-S-, 24 I&N Dec. 196 (BIA 2007)

ID 3567 (PDF)

A person who fathers or gives birth to two or more children in China may qualify as a refugee if he or she establishes that the births are a violation of family planning policies that would be punished by local officials in a way that would give rise to a well-founded fear of persecution.


J-W-S-, 24 I&N Dec. 185 (BIA 2007)

ID 3566 (PDF)

(1) The evidence of record did not demonstrate that the Chinese Government has a national policy of requiring forced sterilization of a parent who returns with a second child born outside of China. (2) Although some sanctions may be imposed pursuant to local family planning policies in China for the birth of a second child abroad, the applicant failed to provide evidence that such sanctions in Fujian Province or Changle City would rise to the level of persecution.


GARCIA, 24 I&N Dec. 179 (BIA 2007)

ID 3565 (PDF)

An application for special rule cancellation of removal is a continuing one, so an applicant can continue to accrue physical presence until the issuance of a final administrative decision. Matter of Ortega-Cabrera, 23 I&N Dec. 793 (BIA 2005), reaffirmed; Cuadra v. Gonzales, 417 F.3d 947 (8th Cir. 2005), followed in jurisdiction only


T-Z-, 24 I&N Dec. 163 (BIA 2007)

ID 3564 (PDF)

(1) An abortion is forced by threats of harm when a reasonable person would objectively view the threats for refusing the abortion to be genuine, and the threatened harm, if carried out, would rise to the level of persecution.

(2) Nonphysical forms of harm, such as the deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment, or other essentials of life, may amount to persecution.

(3) When an Immigration Judge denies asylum solely in the exercise of discretion and then grants withholding of removal, 8 C.F.R. § 1208.16(e) (2006) requires the Immigration Judge to reconsider the denial of asylum to take into account factors relevant to family unification.


Y-L-, 24 I&N Dec. 151 (BIA 2007)

ID 3563 (PDF)

(1) In determining that an application for asylum is frivolous, the Immigration Judge must address the question of frivolousness separately and make specific findings that the applicant deliberately fabricated material elements of the asylum claim.

(2) Before the Immigration Judge makes a finding that an asylum application is frivolous, the applicant must be given sufficient opportunity to account for any discrepancies or implausible aspects of the claim.

(3) The Immigration Judge must provide cogent and convincing reasons for determining that a preponderance of the evidence supports a frivolousness finding, taking into account any explanations by the applicant for discrepancies or implausible aspects of the claim.


TOBAR-LOBO, 24 I&N Dec. 143 (BIA 2007)

ID 3562 (PDF)

Willful failure to register by a sex offender who has been previously apprised of the obligation to register, in violation of section 290(g)(1) of the California Penal Code, is a crime involving moral turpitude.


M-D-, 24 I&N Dec. 138 (BIA 2007)

ID 3561 (PDF)

(1)When a case is remanded to an Immigration Judge for completion of the appropriate background checks, the Immigration Judge is required to enter a final order granting or denying the requested relief.

(2) Although an Immigration Judge may not reconsider the prior decision of the Board of Immigration Appeals when a case is remanded for background checks, the Immigration Judge reacquires jurisdiction over the proceedings and may consider additional evidence regarding new or previously considered relief if it meets the requirements for reopening of the proceedings.


K-R-Y- and K-C-S-, 24 I&N Dec. 133 (BIA 2007)

ID 3560 (PDF)

(1) The North Korean Human Rights Act of 2004, Pub. L. No. 108-333, 118 Stat. 1287, which provides that North Koreans cannot be barred from eligibility for asylum on account of any legal right to citizenship they may enjoy under the Constitution of South Korea, does not apply to North Koreans who have availed themselves of the right to citizenship in South Korea.

(2) The respondents, natives of North Korea who became citizens of South Korea, are precluded from establishing eligibility for asylum as to North Korea on the basis of their firm resettlement in South Korea.


KOCHLANI, 24 I&N Dec. 128 (BIA 2007)

ID 3559 (PDF)

The offense of trafficking in counterfeit goods or services in violation of 18 U.S.C. § 2320 (2000) is a crime involving moral turpitude.


KOTLIAR, 24 I&N Dec. 124 (BIA 2007)

ID 3558 (PDF)

(1) An alien who has been apprehended at home while on probation for criminal convictions is subject to mandatory detention under section 236(c)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1226(c)(1) (2000), regardless of the reason for the most recent criminal custody, provided it can be ascertained from the facts that he was released from criminal custody after October 8, 1998, the expiration date of the Transition Period Custody Rules.

(2) An alien need not be charged with the ground that provides the basis for mandatory detention under section 236(c)(1) of the Act in order to be considered an alien who “is deportable” on that ground.


W-C-B-, 24 I&N Dec. 118 (BIA 2007)

ID 3557 (PDF)

(1) An Immigration Judge has no authority to reinstate a prior order of deportation or removal pursuant to section 241(a)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1231(a)(5) (2000).

(2) An alien subject to reinstatement of a prior order of deportation or removal pursuant to section 241(a)(5) of the Act has no right to a hearing before an Immigration Judge.

(3) The Immigration Judge did not err in terminating removal proceedings as improvidently begun where the respondent was subject to reinstatement of his prior order of deportation.


GERTSENSHTEYN, 24 I&N Dec. 111 (BIA 2007)

ID 3556 (PDF)

(1) The categorical approach to determining whether a criminal offense satisfies a particular ground of removal does not apply to the inquiry whether a violation of 18 U.S.C. § 2422(a) was committed for “commercial advantage” and thus qualifies as an aggravated felony under section 101(a)(43)(K)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(K)(ii) (2000), where “commercial advantage” is not an element of the offense and the evidence relating to that issue is not ordinarily likely to be found in the record of conviction.

(2) The respondent’s offense was committed for “commercial advantage” where it was evident from the record of proceeding, including the respondent’s testimony, that he knew that his employment activity was designed to create a profit for the prostitution business for which he worked.


ACOSTA HIDALGO, 24 I&N Dec. 103 (BIA 2007)

ID 3555 (PDF)

(1) Because the Board of Immigration Appeals and the Immigration Judges lack jurisdiction to adjudicate applications for naturalization, removal proceedings may only be terminated pursuant to 8 C.F.R. § 1239.2(f) (2006) where the Department of Homeland Security has presented an affirmative communication attesting to an alien’s prima facie eligibility for naturalization. Matter of Cruz, 15 I&N Dec. 236 (BIA 1975), reaffirmed.

(2) An adjudication by the Department of Homeland Security on the merits of an alien’s naturalization application while removal proceedings are pending is not an affirmative communication of the alien’s prima facie eligibility for naturalization that would permit termination of proceedings under 8 C.F.R. § 1239.2(f).


BARRIENTOS, 24 I&N Dec. 100 (BIA 2007)

ID 3554 (PDF)

Section 244(b)(5)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1254(b)(5)(B) (2000), permits an alien to assert his right to Temporary Protected Status in removal proceedings, even if his application has previously been denied by the Administrative Appeals Unit.


TEJWANI, 24 I&N Dec. 97 (BIA 2007)

ID 3553 (PDF)

The offense of money laundering in violation of section 470.10(1) of the New York Penal Law is a crime involving moral turpitude.


ZMIJEWSKA, 24 I&N Dec. 87 (BIA 2007)

ID 3552 (PDF)

(1) The Board of Immigration Appeals lacks authority to apply an “exceptional circumstances” or other general equitable exception to the penalty provisions for failure to depart within the time period afforded for voluntary departure under section 240B(d)(1) of the Immigration and Nationality Act, 8 U.S.C.A. § 1229c(d)(1) (West Supp. 2006).

(2) An alien has not voluntarily failed to depart the United States under section 240B(d)(1) of the Act when the alien, through no fault of his or her own, was unaware of the voluntary departure order or was physically unable to depart within the time granted.


AVILA-PEREZ, 24 I&N Dec. 78 (BIA 2007)

ID 3551 (PDF)

(1) Section 201(f)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1151(f)(1) (Supp. II 2002), which allows the beneficiary of an immediate relative visa petition to retain his status as a “child” after he turns 21, applies to an individual whose visa petition was approved before the August 6, 2002, effective date of the Child Status Protection Act, Pub. L. No. 107-208, 116 Stat. 927 (2002), but who filed an application for adjustment of status after that date.

(2) The respondent, whose visa petition was approved before August 6, 2002, and who filed his adjustment of status application after that date, retained his status as a child, and therefore an immediate relative, because he was under the age of 21 when the visa petition was filed on his behalf.


A-M-E & J-G-U-, 24 I&N Dec. 69 (BIA 2007)

ID 3550 (PDF)

(1) Factors to be considered in determining whether a particular social group exists include whether the group’s shared characteristic gives the members the requisite social visibility to make them readily identifiable in society and whether the group can be defined with sufficient particularity to delimit its membership.

(2) The respondents failed to establish that their status as affluent Guatemalans gave them sufficient social visibility to be perceived as a group by society or that the group was defined with adequate particularity to constitute a particular social group.


MONCADA, 24 I&N Dec. 62 (BIA 2007)

ID 3549 (PDF)

The exception to deportability under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2000), for an alien convicted of possessing 30 grams or less of marijuana for his own use does not apply to an alien convicted under a statute that has an element requiring that possession of the marijuana be in a prison or other correctional setting.


O-S-G-, 24 I&N Dec. 56 (BIA 2006)

ID 3548 (PDF)

A motion to reconsider a decision of the Board of Immigration Appeals must include the following: (1) an allegation of material factual or legal errors in the prior decision that is supported by pertinent authority;

(2) in the case of an affirmance without opinion (“AWO”), a showing that the alleged errors and legal arguments were previously raised on appeal and a statement explaining how the Board erred in affirming the Immigration Judge’s decision under the AWO regulations; and

(3) if there has been a change in law, a reference to the relevant statute, regulation, or precedent and an explanation of how the outcome of the Board’s decision is materially affected by the change.


TRUONG, 24 I&N Dec. 52 (BIA 2006)

ID 3547 (PDF)

(1) Under the attorney discipline regulations, a disbarment order issued against a practitioner creates a rebuttable presumption of professional misconduct, which can only be rebutted by a showing that the underlying disciplinary proceeding resulted in a deprivation of due process, that there was an infirmity of proof establishing the misconduct, or that discipline would result in grave injustice.

(2) Where the respondent was disbarred by the highest court of the State of New York, based in large part on his misconduct in a State court action, and where none of the exceptions to discipline are applicable, suspension from practice before the Board of Immigration Appeals, the Immigration Courts, and the Department of Homeland Security for 7 years is an appropriate sanction.


DIAZ-RUACHO, 24 I&N Dec. 47 (BIA 2006)

ID 3546 (PDF)

An alien who fails to post the voluntary departure bond required by section 240B(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b)(3) (2000), is not subject to penalties for failure to depart within the time period specified for voluntary departure


S-B-, 24 I&N Dec. 42 (BIA 2006)

ID 3545 (PDF)

(1) The provisions regarding credibility determinations enacted in section 101(a)(3) of the REAL ID Act of 2005, Div. B of Pub. L. No. 109-13, 119 Stat. 231, 303 (effective May 11, 2005) (to be codified at section 208(b)(1)(B)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(B)(iii)), only apply to applications for asylum, withholding, and other relief from removal that were initially filed on or after May 11, 2005, whether with an asylum officer or an Immigration Judge.

(2) Where the respondent filed his applications for relief with an asylum officer prior to the May 11, 2005, effective date of section 208(b)(1)(B)(iii) of the Act, but renewed his applications in removal proceedings before an Immigration Judge subsequent to that date, the provisions of section 208(b)(1)(B)(iii) were not applicable to credibility determinations made in adjudicating his applications.


GUERRA, 24 I&N Dec. 37 (BIA 2006)

ID 3544 (PDF)

(1) In a custody redetermination under section 236(a) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a) (2000), where an alien must establish to the satisfaction of the Immigration Judge that he or she does not present a danger to others, a threat to the national security, or a flight risk, the Immigration Judge has wide discretion in deciding the factors that may be considered.

(2) In finding that the respondent is a danger to others, the Immigration Judge properly considered evidence that the respondent had been criminally charged in an alleged controlled substance trafficking scheme, even if he had not actually been convicted of a criminal offense.


JURADO, 24 I&N Dec. 29 (BIA 2006)

ID 3543 (PDF)

(1) An alien need not be charged and found inadmissible or removable on a ground specified in section 240A(d)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1)(B) (2000), in order for the alleged criminal conduct to terminate the alien’s continuous residence in this country.

(2) Retail theft in violation of title18, section 3929(a)(1) of the Pennsylvania Consolidated Statutes is a crime involving moral turpitude.

(3) Unsworn falsification to authorities in violation of title18, section 4904(a) of the Pennsylvania Consolidated Statutes is a crime involving moral turpitude.


ROBLES, 24 I&N Dec. 22 (BIA 2006)

ID 3542 (PDF)

(1) When the Attorney General overrules or reverses only one holding in a precedent decision of the Board of Immigration Appeals and expressly declines to consider any alternative holding in the case, the remaining holdings retain their precedential value.

(2) Misprision of a felony in violation of 18 U.S.C. § 4 (2000) is a crime involving moral turpitude. Matter of Sloan, 12 I&N Dec. 840 (A.G. 1968; BIA 1966), overruled in part.

(3) Under the “stop-time” rule in section 240A(d)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1)(B) (2000), an offense is deemed to end an alien’s continuous residence as of the date of its commission, even if the offense was committed prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546.Matter of Perez, 22 I&N Dec. 689 (BIA 1999), reaffirmed.


S-L-L-, 24 I&N Dec. 1 (BIA 2006)

ID 3541 (PDF)

(1) An alien whose spouse was forced to undergo an abortion or sterilization can establish past persecution on account of political opinion and qualify as a refugee within the definition of section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2000), but only if the alien was, in fact, opposed to the spouse’s abortion or sterilization and was legally married at the time of the abortion or sterilization. Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997), reaffirmed and clarified.

(2) Unmarried applicants claiming persecution related to a partner’s coerced abortion or sterilization may qualify for asylum if they demonstrate that they have been persecuted for “other resistance to a coercive population control program” within the meaning of section 101(a)(42) of the Act.

LIADOV, 23 I&N Dec. 990 (BIA 2006)

ID 3540 (PDF)

(1) Neither the Immigration and Nationality Act nor the regulations grant the Board of Immigration Appeals authority to extend the 30-day time limit for filing an appeal to the Board.

(2) Although the Board may certify a case to itself under 8 C.F.R. § 1003.1(c) (2006) where exceptional circumstances are present, a short delay by an overnight delivery service is not a rare or extraordinary event that would warrant consideration of an untimely appeal on certification.


FU, 23 I&N Dec. 985 (BIA 2006)

ID 3539 (PDF)

Section 237(a)(1)(H) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(H)(2000), authorizes a waiver of removability under section 237(a)(1)(A) based on charges of inadmissibility at the time of admission under section 212(a)(7)(A)(i)(I) of the Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I) (2000), for lack of a valid immigrant visa or entry document, as well as under section 212(a)(6)(C)(i) for fraud or willful misrepresentation of a material fact, where there was a misrepresentation made at the time of admission, whether innocent or not


O’CEALLEAGH, 23 I&N Dec. 976 (BIA 2006)

ID 3538 (PDF)

(1) In order for an offense to qualify for the “purely political offense” exception to the ground of inadmissibility under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2000), based on an alien’s conviction for a crime involving moral turpitude, the offense must be completely or totally “political.”

(2) The respondent is inadmissible where he properly conceded that his offense, substantively regarded, was not “purely political,” and where there was substantial evidence that the offense was not fabricated or trumped-up and therefore did not qualify from a procedural perspective as a “purely political offense,” because the circumstances surrounding his conviction in Northern Ireland for aiding and abetting the murder of two British corporals reflected a sincere effort to prosecute real lawbreakers.


SANUDO, 23 I&N Dec. 968 (BIA 2006)

ID 3537 (PDF)

(1) An alien’s conviction for domestic battery in violation of sections 242 and 243(e)(1) of the California Penal Code does not qualify categorically as a conviction for a “crime involving moral turpitude” within the meaning of section 237(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(ii) (2000).

(2) In removal proceedings arising within the jurisdiction of the United States Court of Appeals for the Ninth Circuit, the offense of domestic battery in violation of sections 242 and 243(e)(1) of the California Penal Code does not presently qualify categorically as a “crime of violence” under 18 U.S.C. § 16 (2000), such that it may be considered a “crime of domestic violence” under section 237(a)(2)(E)(i) of the Act. Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006), followed.


ROWE, 23 I&N Dec. 962 (BIA 2006)

ID 3536 (PDF)

(1) Under the laws of Guyana, the sole means of legitimation of a child born out of wedlock is the marriage of the child’s natural parents. Matter of Goorahoo, 20 I&N Dec. 782 (BIA 1994), overruled.

(2) Where the respondent was born out of wedlock in Guyana and his natural parents were never married, his paternity has not been established by legitimation, so he is not ineligible to obtain derivative citizenship under former section 321(a)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1432(a)(3) (1994).


C-A-, as 23 I&N Dec. 951 (BIA 2006)

ID 3535 (PDF)

(1) The members of a particular social group must share a common, immutable characteristic, which may be an innate one, such as sex, color, or kinship ties, or a shared past experience, such as former military leadership or land ownership, but it must be one that members of the group either cannot change, or should not be required to change, because it is fundamental to their individual identities or consciences. Matter of Acosta, 19 I&N Dec. 211(BIA 1985), followed.

(2) The social visibility of the members of a claimed social group is an important consideration in identifying the existence of a “particular social group” for the purpose of determining whether a person qualifies as a refugee.

(3) The group of “former noncriminal drug informants working against the Cali drug cartel” does not have the requisite social visibility to constitute a “particular social group.”


S-K-, as 23 I&N Dec. 936 (BIA 2006)

ID 3534 (PDF)

(1) The statutory language of section 212(a)(3)(B) of the Immigration and Nationality Act, 8 U.S.C.A. § 1182(a)(3)(B) (West 2005), does not allow a “totality of the circumstances” test to be employed in determining whether an organization is engaged in terrorist activity, so factors such as an organization’s purposes or goals and the nature of the regime that the organization opposes may not be considered.

(2) Neither an alien’s intent in making a donation to a terrorist organization nor the intended use of the donation by the recipient is considered in assessing whether the alien provided “material support” to a terrorist organization under section 212(a)(3)(B)(iv)(VI) of the Act.

(3) The respondent’s contribution of S$1100 (Singapore dollars) over an 11-month period to the Chin National Front was sufficiently substantial to constitute material support to an organization, which despite its democratic goals and use of force only in self-defense, is defined by statute as a terrorist organization acting against the Government of Burma, so the respondent is barred from asylum and withholding of removal.


WANG, as 23 I&N Dec. 924 (BIA 2006)

ID 3533 (PDF)

(1) An alien who entered the United States without inspection is not eligible for adjustment of status under the Chinese Student Protection Act of 1992, Pub. L. No. 102-404, 106 Stat. 1969 (“CSPA”).

(2) An alien whose CSPA application for adjustment of status was denied as a result of the alien’s entry without inspection may not amend or renew the application in immigration proceedings in conjunction with section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2000).


J-F-F-, 23 I&N Dec. 912 (A.G. 2006)

ID 3532 (PDF)

An alien’s eligibility for deferral of removal under the Convention Against Torture cannot be established by stringing together a series of suppositions to show that it is more likely than not that torture will result where the evidence does not establish that each step in the hypothetical chain of events is more likely than not to happen.


RODARTE, 23 I&N Dec. 905 (BIA 2006)

ID 3531 (PDF)

(1) To be rendered inadmissible for 10 years pursuant to section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9)(B)(i)(II) (2000), an alien must depart the United States after having been unlawfully present in the United States for 1 year or longer.

(2) Pursuant to sections 301(b)(3) and 309(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-578, 309-625, no period of an alien’s presence in the United States prior to April 1, 1997, may be considered “unlawful presence” for purposes of determining an alien’s inadmissibility under section 212(a)(9)(B) of the Act.


C-C-, 23 I&N Dec. 899 (BIA 2006)

ID 3530 (PDF)

An alien seeking to reopen removal proceedings based on a claim that the birth of a second child in the United States will result in the alien’s forced sterilization in China cannot establish prima facie eligibility for relief where the evidence submitted with the motion and the relevant country conditions reports do not indicate that Chinese nationals returning to that country with foreign-born children have been subjected to forced sterilization in the alien’s home province. Guo v. Ashcroft, 386 F.3d 556 (3d Cir. 2004), distinguished.


OLQUIN, 23 I&N Dec. 896 (BIA 2006)

ID 3529 (PDF)

The offense of possession of child pornography in violation of section 827.071(5) of the Florida Statutes is a crime involving moral turpitude.


BAUTISTA GOMEZ, 23 I&N Dec. 893 (BIA 2006)

ID 3528 (PDF)

The provision in 8 C.F.R. § 1003.23(b)(3) (2005) that an applicant for cancellation of removal under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (2000), must demonstrate statutory eligibility for that relief prior to the service of a notice to appear applies only to the continuous physical presence requirement and has no bearing on the issues of qualifying relatives, hardship, or good moral character.


VILLARREAL-ZUNIGA, 23 I&N Dec. 886 (BIA 2006)

ID 3527 (PDF)

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.


ALCANTARA-PEREZ, 23 I&N Dec. 882 (BIA 2006)

ID 3526 (PDF)

(1) When the Board of Immigration Appeals has remanded the record for completion of background and security checks and new information that may affect the alien’s eligibility for relief is revealed, the Immigration Judge has discretion to determine whether to conduct an additional hearing to consider the new evidence before entering an order granting or denying relief.

(2) When a proceeding is remanded for background and security checks, but no new information is presented as a result of those checks, the Immigration Judge should enter an order granting relief.


ADAMIAK, 23 I&N Dec. 878 (BIA 2006)

ID 3525 (PDF)

A conviction vacated pursuant to section 2943.031 of the Ohio Revised Code for failure of the trial court to advise the alien defendant of the possible immigration consequences of a guilty plea is no longer a valid conviction for immigration purposes.


TORRES-GARCIA, 23 I&N Dec. 866 (BIA 2006)

ID 3524 (PDF)

(1) An alien who reenters the United States without admission after having previously been removed is inadmissible under section 212(a)(9)(C)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9)(C)(i)(II) (2000), even if the alien obtained the Attorney General’s permission to reapply for admission prior to reentering unlawfully.

(2) An alien is statutorily ineligible for a waiver of inadmissibility under the first sentence of section 212(a)(9)(C)(ii) of the Act unless more than 10 years have elapsed since the date of the alien’s last departure from the United States.


V-F-D-, 23 I&N Dec. 859 (BIA 2006)

ID 3523 (PDF)

A victim of sexual abuse who is 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 section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2000).


COTA, 23 I&N Dec. 849 (BIA 2005)

ID 3522 (PDF)

A trial court’s decision to modify or reduce an alien’s criminal sentence nunc pro tunc is entitled to full faith and credit by the Immigration Judges and the Board of Immigration Appeals, and such a modified or reduced sentence is recognized as valid for purposes of the immigration law without regard to the trial court’s reasons for effecting the modification or reduction. Matter of Song, 23 I&N Dec. 173 (BIA 2001), clarified; Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), distinguished.


RAMOS, 23 I&N Dec. 843 (BIA 2005)

ID 3521 (PDF)

(1) Under the attorney discipline regulations, a disbarment order issued against a practitioner by the highest court of a State creates a rebuttable presumption that disciplinary sanctions should follow, which can only be rebutted upon a showing that the underlying disciplinary proceeding resulted in a deprivation of due process, that there was an infirmity of proof establishing the misconduct, or that discipline would result in injustice.

(2) A practitioner who has been expelled may petition the Board of Immigration Appeals for reinstatement after 1 year, but such reinstatement is not automatic and the practitioner must qualify as an attorney or representative under the regulations.

(3) The Government is not required to show that an attorney has “appeared” before it, because any attorney is a “practitioner” and is therefore subject to sanctions under the attorney discipline regulations following disbarment.

(4) Where the respondent was disbarred by the Supreme Court of Florida as a result of his extensive unethical conduct, expulsion from practice before the Board, the Immigration Courts, and the Department of Homeland Security is an appropriate sanction.


SMRIKO, 23 I&N Dec. 836 (BIA 2005)

ID 3520 (PDF)

(1) Removal proceedings may be commenced against an alien who was admitted to the United States as a refugee under section 207 of the Immigration and Nationality Act, 8 U.S.C. § 1157 (2000), without prior termination of the alien’s refugee status.

(2) The respondent, who was admitted to the Unites States as a refugee and adjusted his status to that of a lawful permanent resident, is subject to removal on the basis of his convictions for crimes involving moral turpitude, even though his refugee status was never terminated.


PEREZ VARGAS, 23 I&N Dec. 829 (BIA 2005)

ID 3519 (PDF)

Immigration Judges have no authority to determine whether the validity of an alien’s approved employment-based visa petition is preserved under section 204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j) (2000), after the alien’s change in jobs or employers.


E-L-H-, 23 I&N Dec. 814 (BIA 2005)

ID 3518 (PDF)

A precedent decision of the Board of Immigration Appeals applies to all proceedings involving the same issue unless and until it is modified or overruled by the Attorney General, the Board, Congress, or a Federal court. Matter of E-L-H-, 22 I&N Dec. 21 (BIA 1998), reaffirmed.


AVILEZ, 23 I&N Dec. 799 (BIA 2005)

ID 3517 (PDF)

(1) Where an alien departed the United States for a period less than that specified in section 240A(d)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(2)(2000), and unsuccessfully attempted reentry at a land border port of entry before actually reentering, physical presence continued to accrue for purposes of cancellation of removal under section 240A(b)(1)(A) unless, during that attempted reentry, the alien was formally excluded or made subject to an order of expedited removal, was offered and accepted the opportunity to withdraw an application for admission, or was subjected to some other formal, documented process pursuant to which the alien was determined to be inadmissible to the United States.

(2) The respondent’s 2-week absence from the United States did not break her continuous physical presence where she was refused admission by an immigration official at a port of entry, returned to Mexico without any threat of the institution of exclusion proceedings, and subsequently reentered without inspection.


ORTEGA-CABRERA, 23 I&N Dec. 793 (BIA 2005)

ID 3516 (PDF)

(1) Because an application for cancellation of removal under section 240A(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1) (2000), is a continuing one for purposes of evaluating an alien’s moral character, the period during which good moral character must be established ends with the entry of a final administrative decision by the Immigration Judge or the Board of Immigration Appeals.

(2) To establish eligibility for cancellation of removal under section 240A(b)(1) of the Act, an alien must show good moral character for a period of 10 years, which is calculated backward from the date on which the application is finally resolved by the Immigration Judge or the Board.


A-H-, 23 I&N Dec. 774 (A.G. 2005)

ID 3515 (PDF)

(1) The Attorney General denied asylum in the exercise of discretion to a leader-in-exile of the Islamic Salvation Front of Algeria who was associated with armed groups that committed widespread acts of persecution and terrorism in Algeria, because the United States has significant interests in combating violent acts of persecution and terrorism, and it is inconsistent with these interests to provide safe haven to individuals who have connections to such acts of violence.

(2) Terrorist acts committed by the armed Islamist groups in Algeria, including the bombing of civilian targets and the widespread murders of journalists and intellectuals on account of their political opinions or religious beliefs, constitute the persecution of others.

(3) A person who is a leader-in-exile of a political movement may be found to have “incited, assisted, or otherwise participated in” acts of persecution in the home country by an armed group connected to that political movement where there is evidence indicating that the leader (1) was instrumental in creating and sustaining the ties between the political movement and the armed group and was aware of the atrocities committed by the armed group; (2) used his profile and position of influence to make public statements that encouraged those atrocities; or (3) made statements that appear to have condoned the persecution without publicly and specifically disassociating himself and his movement from the acts of persecution, particularly if his statements appear to have resulted in an increase in the persecution.

(4) The phrase “danger to the security of the United States” means any nontrivial risk to the Nation’s defense, foreign relations, or economic interests, and there are “reasonable grounds for regarding” an alien as a danger to the national security where there is information that would permit a reasonable person to believe that the alien may pose such a danger.

(5) The Attorney General remanded the record for further consideration by the Board of Immigration Appeals of the questions whether (1) there is sufficient evidence to indicate that the respondent “incited, assisted, or otherwise participated in the persecution” of others; (2) deference should be given to the credibility findings of the Immigration Judge; (3) there are “reasonable grounds for regarding [the respondent] as a danger to the security of the United States”; (4) the respondent presently faces a threat to his life or freedom if removed to Algeria; and (5) the respondent presently faces a likelihood of being tortured in Algeria.


BRIEVA, 23 I&N Dec. 766 (BIA 2005)

ID 3514 (PDF)

(1) The offense of unauthorized use of a motor vehicle in violation of section 31.07(a) of the Texas Penal Code is a crime of violence under 18 U.S.C. § 16(b) (2000) and is therefore an aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2000).

(2) An alien who is removable on the basis of his conviction for a crime of violence is ineligible for a waiver under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), because the aggravated felony ground of removal with which he was charged has no statutory counterpart in the grounds of inadmissibility under section 212(a) of the Act, 8 U.S.C. § 1182(a) (2000).


SHANU, 23 I&N Dec. 754 (BIA 2005)

ID 3513 (PDF)

(1) The phrase “date of admission” in section 237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2000), refers to, among other things, the date on which a previously admitted alien is lawfully admitted for permanent residence by means of adjustment of status.

(2) An alien convicted of a single crime involving moral turpitude that is punishable by a term of imprisonment of at least 1 year is removable from the United States under section 237(a)(2)(A)(i) of the Act if the crime was committed within 5 years after the date of any admission made by the alien, whether it be the first or any subsequent admission.


LOVO, 23 I&N Dec. 746 (BIA 2005)

ID 3512 (PDF)

(1) The Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996), does not preclude, for purposes of Federal law, recognition of a marriage involving a postoperative transsexual, where the marriage is considered by the State in which it was performed as one between two individuals of the opposite sex.

(2) A marriage between a postoperative transsexual and a person of the opposite sex may be the basis for benefits under section 201(b)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1151(b)(2)(A)(i) (2000), where the State in which the marriage occurred recognizes the change in sex of the postoperative transsexual and considers the marriage a valid heterosexual marriage.


A-M-, 23 I&N Dec. 737 (BIA 2005)

ID 3511 (PDF)

(1) Absent specific reasons for reducing the period of voluntary departure initially granted by the Immigration Judge at the conclusion of removal proceedings, the Board of Immigration Appeals will reinstate the same period of time for voluntary departure afforded to the alien by the Immigration Judge. Matter of Chouliaris, 16 I&N Dec. 168 (BIA 1977), modified.

(2) The respondent, whose asylum application was not filed within a year of his arrival in the United States, failed to demonstrate his eligibility for an exception to the filing deadline or for any other relief based on his claim of persecution in Indonesia, but the 60-day period of voluntary departure granted to him by the Immigration Judge was reinstated.


X-K-, 23 I&N Dec. 731 (BIA 2005)

ID 3510 (PDF)

An alien who is initially screened for expedited removal under section 235(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b)(1)(A) (2000), as a member of the class of aliens designated pursuant to the authority in section 235(b)(1)(A)(iii), but who is subsequently placed in removal proceedings under section 240 of the Act, 8 U.S.C. § 1229a 2000), following a positive credible fear determination, is eligible for a custody redetermination hearing before an Immigration Judge unless the alien is a member of any of the listed classes of aliens who are specifically excluded from the custody jurisdiction of Immigration Judges pursuant to 8 C.F.R. § 1003.19(h)(2)(i) (2004).


BLAKE, 23 I&N Dec. 722 (BIA 2005)

ID 3509 (PDF)

An alien who is removable on the basis of his conviction for sexual abuse of a minor is ineligible for a waiver under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), because the aggravated felony ground of removal with which he was charged has no statutory counterpart in the grounds of inadmissibility under section 212(a) of the Act, 8 U.S.C. § 1182(a) (2000). Matter of Meza, 20 I&N Dec. 257 (BIA 1991), distinguished.


LUVIANO, 23 I&N Dec. 718 (A.G. 2005)

ID 3508 (PDF)

An alien whose firearms conviction was expunged pursuant to section 1203.4 of the California Penal Code has been “convicted” for immigration purposes. Matter of Marroquin, 23 I&N Dec. 705 (A.G. 2005), followed.


MARROQUIN, 23 I&N Dec. 705 (A.G. 2005)

ID 3507 (PDF)

(1) The federal definition of “conviction” at section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2000), encompasses convictions, other than those involving first-time simple possession of narcotics, that have been vacated or set aside pursuant to an expungement statute for reasons that do not go to the legal propriety of the original judgment, and that continue to impose some restraints or penalties upon the defendant’s liberty.

(2) An alien whose firearms conviction was expunged pursuant to section 1203.4 of the California Penal Code has been “convicted” for immigration purposes.


E-L-H-, 23 I&N Dec. 700 (A.G. 2004)

ID 3506 (PDF)

The Attorney General remanded the case for reconsideration, in light of Matter of A-H-, A.G. Order No. 2380-2001 (Jan. 19, 2001), whether a decision of the Board of Immigration Appeals is final and effective while it is pending review before the Attorney General on certification.


AZURIN; 23 I&N Dec. 695 (BIA 2005)

ID 3505 (PDF)

An alien who, prior to the 1996 amendments made to former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), pled guilty to an offense that rendered him inadmissible as an alien convicted of a crime involving moral turpitude, as well as removable based on his conviction for an aggravated felony and a firearms offense, may seek a waiver of his inadmissibility under section 212(c) in conjunction with an application for adjustment of status, despite regulatory changes relating to the availability of section 212(c) relief. Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993), reaffirmed.


R-A-, 23 I&N Dec. 694 (A.G. 2005)

ID 3504 (PDF)

The Attorney General remanded the record to the BIA for reconsideration of its decision in Matter of R-A-, 22 I&N Dec. 906 (A.G. 2001; BIA 1999), following final publication of the proposed rule published at 65 Fed. Reg. 76,588 (Dec. 7, 2000).


C-Y-Z-, 23 I&N Dec. 693 (A.G. 2004)

ID 3503 (PDF)

The Attorney General denied the request of the Commissioner of the Immigration and Naturalization Service to certify for review the decision of the Board of Immigration Appeals.


ESLAMIZAR, 23 I&N Dec. 684 (BIA 2004)

ID 3502 (PDF)

An alien found guilty of a “violation” under Oregon law in a proceeding conducted pursuant to section 153.076 of the Oregon Revised Statutes does not have a “conviction” for immigration purposes under section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2000).


L-K-, 23 I&N Dec. 677 (BIA 2004)

ID 3501 (PDF)

(1) Under section 245(c)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1255(c)(2) (2000), an alien who has failed to continuously maintain a lawful status since entry into the United States, other than through no fault of his own or for technical reasons, is ineligible for adjustment of status under section 245(a) of the Act.

(2) A failure to maintain lawful status is not “for technical reasons” within the meaning of section 245(c)(2) of the Act and the applicable regulations at 8 C.F.R. § 1245.1(d)(2)(ii) (2004), where the alien filed an asylum application while in lawful nonimmigrant status, the nonimmigrant status subsequently expired, and the asylum application was referred to the Immigration Court prior to the time the alien applied for adjustment of status.


CISNEROS-GONZALEZ, 23 I&N Dec. 668

ID 3500 (PDF)

(1) Pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1) (2000), an alien’s period of continuous physical presence in the United States is deemed to end when the alien is served with the charging document that is the basis for the current proceeding.

(2) Service of a charging document in a prior proceeding does not serve to end the alien’s period of continuous physical presence with respect to an application for cancellation ofremoval filed in the current proceeding. Matter of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000), distinguished.


K-A-, 23 I&N Dec. 661 (BIA 2004)

ID 3499 (PDF)

(1) Pursuant to 8 C.F.R. § 1209.2(c) (2004), once an asylee has been placed in removal proceedings, the Immigration Judge and the Board of Immigration Appeals have exclusive jurisdiction to adjudicate the asylee’s applications for adjustment of status and a waiver of inadmissibility under sections 209(b) and (c) of the Immigration and Nationality Act, 8 U.S.C. §§ 1159(b) and (c) (2000). Matter of H-N-, 22 I&N Dec. 1039 (BIA 1999), distinguished.

(2) Termination of a grant of asylum pursuant to section 208(c)(2) of the Act, 8 U.S.C. § 1158(c)(2) (2000), is not mandatory with respect to an asylee who qualifies for and merits adjustment of status and a waiver of inadmissibility under sections 209(b) and (c) of the Act.


MALTA, 23 I & N Dec. 23 I&N Dec. 656 (BIA 2004)

ID 3498 (PDF)

A stalking offense for harassing conduct in violation of section 646.9(b) of the California Penal Code, which proscribes stalking when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the stalking behavior, is a crime of violence under 18 U.S.C. § 16(b) (2000), and is therefore an aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2000).


VARGAS, 23 I&N Dec. 651 (BIA 2004)

ID 3497 (PDF)

The offense of manslaughter in the first degree in violation of section 125.20 of the New York Penal Law is a crime of violence under 18 U.S.C. § 18(b) (2000) and is therefore an aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2000).


GADDA, 23 I&N Dec. 645 (BIA 2003)

ID 3496 (PDF)

(1) An attorney who practices immigration law in proceedings before the Board of Immigration Appeals, the Immigration Courts, and the Department of Homeland Security must be a member in good standing of a State bar and is therefore subject to discipline by State bar authorities.

(2) The Board of Immigration Appeals has authority to increase the level of disciplinary sanction initially imposed by an adjudicating official against an attorney.

(3) Where the respondent was disbarred by the Supreme Court of California based on his egregious and repeated acts of professional misconduct over a number of years, expulsion from practice before the Board of Immigration Appeals, the Immigration Courts, and the Department of Homeland Security is an appropriate sanction.


R-S-H-, 23 I & N 629 (BIA 2003)

ID 3495 (PDF)

(1) Under 8 C.F.R. § 1003.46(i) (formerly 8 C.F.R. § 3.46(i)), the mandatory consequence for violating a protective order is that the respondent becomes ineligible for any form of discretionary relief, except for bond.

(2) The mandatory consequence for breaching a protective order will be applied unless a respondent fully cooperates with the Government in any investigation relating to the noncompliance and, additionally, establishes by clear and convincing evidence either that extraordinary and extremely unusual circumstances exist or that failure to comply with the protective order was beyond the control of the respondent and his or her attorney or accredited representative.

(3) The presence of federal employees, including court personnel or Department of Justice attorneys, at a closed hearing where a protective order is discussed does not violate the protective order regulations.

(4) The respondent is ineligible for any form of discretionary relief, except for bond, because a protective order issued by the Immigration Judge was violated by disclosure of protected information to unauthorized persons.


SUH, 23 I & N 626 (BIA 2003)

ID 3494 (PDF)

(1) A presidential or gubernatorial pardon waives only the grounds of removal specifically set forth in section 237(a)(2)(A)(v) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(v) (2000), and no implicit waivers may be read into the statute.

(2) The respondent’s pardon did not waive his removability as an alien convicted of a crime of domestic violence or child abuse under section 237(a)(2)(E)(i) of the Act, because that section is not specifically included in section 237(a)(2)(A)(v).


PICKERING, 23 I&N Dec. 621 (BIA 2003)

ID 3493 (PDF)

(1) If a court vacates an alien’s conviction for reasons solely related to rehabilitation or immigration hardships, rather than on the basis of a procedural or substantive defect in the underlying criminal proceedings, the conviction is not eliminated for immigration purposes.

(2) Where the record indicated that the respondent’s conviction for possession of a controlled substance was quashed by a Canadian court for the sole purpose of avoiding the bar to his acquisition of permanent residence, the court’s action was not effective to eliminate the conviction for immigration purposes.


Y-T-L-, 23 I&N Dec. 601 (BIA 2003)

ID 3492 (PDF)

Where an alien has established past persecution based on the forced sterilization of his spouse pursuant to a policy of coercive family planning, the fact that, owing to such sterilization, the alien and his spouse face no further threat of forced sterilization or abortion does not constitute a “fundamental change” in circumstances sufficient to meet the standards for a discretionary denial under 8 C.F.R. § 1208.13(b)(1)(i)(A).


DEANDRA-ROMO, 23 I&N Dec. 597 (BIA 2003)

ID 3491 (PDF)

The respondent, who was convicted of two misdemeanor crimes involving moral turpitude, is not precluded by the provisions of section 240A(d)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1)(B) (2000), from establishing the requisite 7 years of continuous residence for cancellation of removal under section 240A(a)(2), because his first crime, whichm qualifies as a petty offense, did not render him inadmissible, and he had accrued the requisite 7 years of continuous residence before the second offense was committed.


GARCIA-HERNANDEZ, 23 I&N Dec. 590 (BIA 2003)

ID 3490 (PDF)

(1) An alien who has been convicted of a crime involving moral turpitude that falls within the “petty offense” exception in section 212(a)(2)(A)(ii)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (1994), is not ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C) (Supp. IV 1998), because he “has not been convicted of an offense under section 212(a)(2)” of the Act.

(2) An alien who has committed a crime involving moral turpitude that falls within the “petty offense” exception is not ineligible for cancellation of removal under section 240A(b)(1)(B) of the Act, because commission of a petty offense does not bar the offender from establishing good moral character under section 101(f)(3) of the Act, 8 U.S.C. § 1101(f)(3) (Supp. IV 1998).

(3) An alien who has committed more than one petty offense is not ineligible for the “petty offense” exception if “only one crime” is a crime involving moral turpitude.

(4) The respondent, who was convicted of a crime involving moral turpitude that qualifies as a petty offense, was not rendered ineligible for cancellation of removal under section 240A(b)(1) of Act by either his conviction or his commission of another offense that is not a crime involving moral turpitude.


NAVAS-ACOSTA, 23 I&N Dec. 586

ID 3489 (PDF)

(1) United States nationality cannot be acquired by taking an oath of allegiance pursuant to an application for naturalization, because birth and naturalization are the only means of acquiring United States nationality under the Immigration and Nationality Act.

(2) The respondent, who was born abroad and did not acquire United States nationality at birth, by naturalization, or by congressional action, failed to establish such nationality by declaring his allegiance to the United States in connection with an application for naturalization.


D-J-, 23 I&N Dec. 572 (A.G. 2003)

ID 3488 (PDF)

(1) The Attorney General has broad discretion in bond proceedings under section 236(a) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a) (2000), to determine whether to release an alien on bond.

(2) Neither section 236(a) of the Act nor the applicable regulations confer on an alien the right to release on bond.

(3) In determining whether to release on bond undocumented migrants who arrive in the United States by sea seeking to evade inspection, it is appropriate to consider national security interests implicated by the encouragement of further unlawful mass migrations and the release of undocumented alien migrants into the United States without adequate screening.

(4) In bond proceedings involving aliens seeking to enter the United States illegally, where the Government offers evidence from sources in the Executive Branch with relevant expertise establishing that significant national security interests are implicated, Immigration Judges and the Board of Immigration Appeals shall consider such interests.

(5) Considering national security grounds applicable to a category of aliens in denying an unadmitted alien’s request for release on bond does not violate any due process right to an individualized determination in bond proceedings under section 236(a) of the Act.

(6) The denial of the respondent’s release on bond does not violate international law.

(7) Release of the respondent on bond is unwarranted due to considerations of sound immigration policy and national security that would be undercut by the release of the respondent and other similarly situated undocumented alien migrants who unlawfully crossed the borders of the United States on October 29, 2002; further, the respondent failed to demonstrate adequately that he does not present a risk of flight if released and should be denied bond on that basis as well.


AASAD, 23 I&N Dec. 553 (BIA 2003)

ID 3487 (PDF)

(1) Case law of the United States Supreme Court holding, in the context of criminal proceedings, that there can be no deprivation of effective assistance of counsel where there is no constitutional right to counsel does not require withdrawal from Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff’d, 857 F.2d 10 (1st Cir. 1988), finding a right to assert a claim of ineffective assistance of counsel in immigration proceedings, where the United States Courts of Appeals have recognized that a respondent has a Fifth Amendment due process right to a fair immigration hearing, which may be denied if counsel prevents the respondent from meaningfully presenting his or her case.

(2) The respondent did not establish that his former counsel’s failure to file a timely appeal constituted sufficient prejudice to warrant consideration of his late appeal on the basis of ineffective assistance of counsel.


KOLOAMATANGI, 23 I&N Dec. 548 (BIA 2003)

ID 3486 (PDF)

An alien who acquired permanent resident status through fraud or misrepresentation has never been “lawfully admitted for permanent residence” and is therefore ineligible for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2000).


M-D-, 23 I&N Dec. 540 (BIA 2002)

ID 3485 (PDF)

(1) An alien may be charged with receipt of a notice to appear and notice of the hearing date, where the notice is sent by certified mail to the alien’s correct address, but it is returned by the United States Postal Service marked “unclaimed.”

(2) The regulations at 8 C.F.R. § 3.13 (2002) do not require that the notice to appear or notice of hearing in removal proceedings be sent to the alien or the alien’s attorney of record by regular mail, as opposed to certified mail.


MEJIA-ANDINO, 23 I&N Dec. 533 (BIA 2002)

ID 3484 (PDF)

Removal proceedings against a minor under 14 years of age were properly terminated because service of the notice to appear failed to meet the requirements of 8 C.F.R. § 103.5a(c)(2)(ii) (2002), as it was served only on a person identified as the respondent’s uncle, and no effort was made to serve the notice on the respondent’s parents, who apparently live in the United States.


GOMEZ-GOMEZ, 23 I&N Dec. 522 (BIA 2002)

ID 3483 (PDF)

(1) The Immigration and Naturalization Service met its burden, in an in absentia removal proceeding, of establishing a minor respondent’s removability by clear, unequivocal, and convincing evidence, where (1) a Record of Deportable/Inadmissible Alien (Form I-213) was submitted, documenting the respondent’s identity and alienage; (2) the respondent, who failed without good cause to appear at her removal hearing, made no challenge to the admissibility of the Form I-213; (3) there were no grounds for a finding that the admission of the Form I-213 would be fundamentally unfair; and (4) no independent evidence in the record supported the Immigration Judge’s conclusion that the respondent may not have been the child of the adult who claimed to be the respondent’s parent and who furnished the information regarding her foreign citizenship. Matter of Ponce-Hernandez, 22 I&N Dec. 784 (BIA 1999), followed.

(2) The respondent, a minor who could not be expected to attend immigration proceedings on her own, was properly notified of her hearing, through proper mailing of a Notice to Appear (Form I-862) to the last address provided by her parent, with whom she was residing.


ELGENDI, 23 I&N Dec. 515 (BIA 2002)

ID 3482 (PDF)

In accordance with authoritative precedent of the United States Court of Appeals for the Second Circuit in United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir. 1999), and United States v. Polanco, 29 F.3d 35 (2d Cir. 1994), an individual who has been convicted twice of misdemeanor possession of marijuana in violation of New York State law has not been convicted of an aggravated felony under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000).


MARTIN, 23 I&N Dec. 491 (BIA 2002) (Reposted due to editorial change)

ID 3481 (PDF)

The offense of third-degree assault in violation of section 53a-61(a)(1) of the Connecticut General Statutes, which involves the intentional infliction of physical injury upon another, is a crime of violence under 18 U.S.C. § 16(a) (2000) and is therefore an aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2000).


M-B-A, 23 I&N Dec. 474 (BIA 2002)

ID 3480 (PDF)

A Nigerian convicted of a drug offense in the United States failed to establish eligibility for deferral of removal under Article 3 of the Convention Against Torture because the evidence she presented regarding the enforcement of Decree No. 33 of the Nigerian National Drug Law Enforcement Agency against individuals similarly situated to her was insufficient to demonstrate that it is more likely than not that she will be tortured by a public official, or at the instigation or with the consent or acquiescence of such an official, if she is deported to Nigeria.


RECINAS, 23 I&N Dec. 467 (BIA 2002)

ID 3479 (PDF)

(1) The respondent, a single mother who has no immediate family remaining in Mexico, provides the sole support for her six children, and has limited financial resources, established eligibility for cancellation of removal under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (2002), because she demonstrated that her United States citizen children, who are 12, 11, 8, and 5 years old, will suffer exceptional and extremely unusual hardship upon her removal to her native country.

(2) The factors considered in assessing the hardship to the respondent’s children include the heavy burden imposed on the respondent to provide the sole financial and familial support for her six children if she is deported to Mexico, the lack of any family in her native country, the children’s unfamiliarity with the Spanish language, and the unavailability of an alternative means of immigrating to this country.


S-H-, 23 I&N Dec. 462 (BIA 2002)

ID 3478 (PDF)

Under new regulations that become effective on September 25, 2002, the Board of Immigration Appeals has limited fact-finding ability on appeal, which heightens the need for Immigration Judges to include in their decisions clear and complete findings of fact that are supported by the record and are in compliance with controlling law. Matter of Vilanova-Gonzalez, 13 I&N Dec. 399 (BIA 1969), and Matter of Becerra-Miranda, 12 I&N Dec. 358 (BIA 1967), superseded.


BLANCAS, 23 I&N Dec. 458 (BIA 2002)

ID 3477 (PDF)

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 section 240A(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a)(2) (Supp. V 1999).


SMALL, 23 I&N Dec. 448 (BIA 2002)

ID 3476 (PDF)

A misdemeanor offense of sexual abuse of a minor constitutes an aggravated felony under section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)((2000)


ROMALEZ, 23 I&N Dec. 423 (BIA 2002)

ID 3475 (PDF)

For purposes of determining eligibility for cancellation of removal pursuant to section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (Supp. IV 1998), continuous physical presence is deemed to end at the time an alien is compelled to depart the United States under threat of the institution of deportation or removal proceedings.


SANTOS-LOPEZ ,23 I&N Dec. 419 (BIA 2002)

ID 3474 (PDF)

(1) Under the decisions of the United States Court of Appeals for the Fifth Circuit in United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir.), cert. denied, 122 S. Ct. 305 (2001), and United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997), a determination whether an offense is a “felony” for purposes of 18 U.S.C. § 924(c)(2) (2000) 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.

(2) Each of the respondent’s two convictions for possession of marihuana is classified as a misdemeanor offense under Texas law; therefore, neither conviction is for a “felony” within the meaning of 18 U.S.C. § 924(c)(2) or an “aggravated felony” within the meaning of section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000).


YANEZ, 23 I&N Dec. 390 (BIA 2002)

ID 3473 (PDF)

The determination whether a state drug offense constitutes a “drug trafficking crime” under 18 U.S.C. § 924(c)(2) (2000), such that it may be considered an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000), shall be made by reference to decisional authority from the federal circuit courts of appeals, and not by reference to any separate legal standard adopted by the Board of Immigration Appeals. Matter of K-V-D-, Interim Decision 3422 (BIA 1999), overruled. Matter of L-G-, 21 I&N Dec. 89 (BIA 1995), and Matter of Davis, 20 I&N Dec. 536 (BIA 1992), modified.


JEAN, 23 I&N Dec. 373 (A.G. 2002)

ID 3472 (PDF)

(1) The 30-day period set forth in 8 C.F.R. § 3.38(b) (2002) for filing an appeal to the Board of Immigration Appeals is mandatory and jurisdictional, and it begins to run upon the issuance of a final disposition in the case.

(2) The Board of Immigration Appeals’ authority under 8 C.F.R. § 3.1(c) (2002) to certifycases to itself in its discretion is limited to exceptional circumstances, and is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship.

(3) In evaluating the propriety of granting an otherwise inadmissible alien a discretionary waiver to permit adjustment of status from refugee to lawful permanent resident pursuant to section 209(c) of the Immigration and Nationality Act, 8 U.S.C. § 1159(c) (2000), any humanitarian, family unity preservation, or public interest considerations must be balanced against the seriousness of the criminal offense that rendered the alien inadmissible.

(4) Aliens who have committed violent or dangerous crimes will not be granted a discretionary waiver to permit adjustment of status from refugee to lawful permanent resident pursuant to section 209(c) of the Act except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely nusual hardship. Depending on the gravity of the alien’s underlying criminal offense, such a showing of exceptional and extremely unusual hardship might still be insufficient.

(5) Aliens who have committed violent or dangerous crimes will not be granted asylum, even if they are technically eligible for such relief, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship. Depending on the gravity of the alien’s underlying criminal offense, such a showing of exceptional and extremely unusual hardship might still be insufficient.


G-A-, 23 I&N Dec. 366 (BIA 2002)

ID 3471 (PDF)

An Iranian Christian of Armenian descent demonstrated eligibility for deferral of removal under Article 3 of the Convention Against Torture and 8 C.F.R. § 208.17(a) (2001) by establishing that it is more likely than not that he will be tortured if deported to Iran based on a combination of factors, including his religion, his ethnicity, the duration of his residence in the United States, and his drug-related convictions in this country.


G-C-L-, 23 I&N Dec. 359 (BIA 2002)

ID 3470 (PDF)

The Board of Immigration Appeals withdraws from its policy of granting untimely motions to reopen by applicants claiming eligibility for asylum based solely on coercive population control policies, effective 90 days from the date of this decision. Matter of X-G-W-, Interim Decision 3352 (BIA 1998), superseded.


U-H-, 23 I&N Dec. 355 (BIA 2002)

ID 3469 (PDF)

Section 412 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272, 351 (“USA PATRIOT ACT”), does not change the standard employed to determine, for purposes of adjudicating an application for asylum or withholding of removal, whether there is reasonable ground to believe that an alien is engaged in, or is likely to engage in, terrorist activity under section 212(a)(3)(B)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(3)(B)(i)(II) (2000), or whether there are reasonable grounds to believe that he or she is a danger to the security of the United States under section 241(b)(3)(B)(iv) of the Act, 8 U.S.C. § 1231(b)(3)(B)(iv) (2000).


RAMOS, 23 I&N Dec. 336 (BIA 2002)

ID 3468 (PDF)

(1) In cases arising in circuits where the federal court of appeals has not decided whether the offense of driving under the influence is a crime of violence under 18 U.S.C. § 16(b) (2000), an offense will be considered a crime of violence if it is committed at least recklessly and involves a substantial risk that the perpetrator may resort to the use of force to carry out the crime; otherwise, where the circuit court has ruled on the issue, the law of the circuit will be applied to cases arising in that jurisdiction.

(2) The offense of operating a motor vehicle while under the influence of intoxicating liquor in violation of chapter 90, section 24(1)(a)(1) of the Massachusetts General Laws is not a felony that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense and is therefore not a crime of violence. Matter of Puente, Interim Decision 3412 (BIA 1999), and Matter of Magallanes, Interim Decision 3341 (BIA 1998), overruled.


ANDAZOLA, 23 I&N Dec. 319 (BIA 2002)

ID 3467 (PDF)

(1) The respondent, an unmarried mother, did not establish eligibility for cancellation of removal under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (2000), because she failed to demonstrate that her 6- and 11-year-old United States citizen children will suffer exceptional and extremely unusual hardship upon her removal to Mexico.

(2) The factors considered in assessing the hardship to the respondent’s children include the poor economic conditions and diminished educational opportunities in Mexico and the fact that the respondent is unmarried and has no family in that country to assist in their adjustment upon her return.


J-E-, 23 I&N Dec. 291 (BIA 2002)

ID 3466 (PDF)

(1) An alien seeking protection under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment must establish that it is more likely than not that he will be tortured in the country of removal.

(2) Torture within the meaning of the Convention Against Torture and 8 C.F.R. § 208.18(a) (2001) is an extreme form of cruel and inhuman treatment and does not extend to lesser forms of cruel, inhuman, or degrading treatment or punishment.

(3) For an act to constitute “torture” it must satisfy each of the following five elements in the definition of torture set forth at 8 C.F.R. § 208.18(a): (1) the act must cause severe physical or mental pain or suffering; (2) the act must be intentionally inflicted; (3) the act must be inflicted for a proscribed purpose; (4) the act must be inflicted by or at the instigation of or with the consent or acquiescence of a public official who has custody or physical control of the victim; and (5) the act cannot arise from lawful sanctions.

(4) According to 8 C.F.R. § 208.16(c)(3) (2001), in adjudicating a claim for protection under Article 3 of the Convention Against Torture, all evidence relevant to the possibility of future torture must be considered, including, but not limited to: (1) evidence of past torture inflicted upon the applicant; (2) evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured; (3) evidence of gross, flagrant, or mass violations of human rights within the country of removal, where applicable; and (4) other relevant information regarding conditions in the country of removal.

(5) The indefinite detention of criminal deportees by Haitian authorities does not constitute torture within the meaning of 8 C.F.R. § 208.18(a) where there is no evidence that the authorities intentionally and deliberately detain deportees in order to inflict torture.

(6) Substandard prison conditions in Haiti do not constitute torture within the meaning of 8 C.F.R. § 208.18(a) where there is no evidence that the authorities intentionally create and maintain such conditions in order to inflict torture.

(7) Evidence of the occurrence in Haitian prisons of isolated instances of mistreatment that may rise to the level of torture as defined in the Convention Against Torture is insufficient to establish that it is more likely than not that the respondent will be tortured if returned to Haiti.


Y-C-, 23 I&N Dec. 286 (BIA 2002)

ID 3465 (PDF)

An unaccompanied minor who was in the custody of the Immigration and Naturalization Service pending removal proceedings during the 1-year period following his arrival in the United States established extraordinary circumstances that excused his failure to file an asylum application within 1 year after the date of his arrival.


Y-L-, A-G- & R-S-R-, 23 I&N Dec. 270 (A.G. 2002)

ID 3464 (PDF)

(1) Aggravated felonies involving unlawful trafficking in controlled substances presumptively constitute “particularly serious crimes” within the meaning of section 241(b)(3)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)(B) (2000), and only under the most extenuating circumstances that are both extraordinary and compelling would departure from this interpretation be warranted or permissible. Matter of S-S-, Interim Decision 3374 (BIA 1999), overruled.

(2) The respondents are not eligible for deferral of removal under Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment where each failed to 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-, Interim Decision 3430 (BIA 2000), followed.


VELARDE, 23 I&N Dec. 253 (BIA 2002)

ID 3463 (PDF)

A properly filed motion to reopen for adjustment of status based on a marriage entered into after the commencement of proceedings may be granted in the exercise of discretion, notwithstanding the pendency of a visa petition filed on the alien’s behalf, where: (1) the motion to reopen is timely filed; (2) the motion is not numerically barred by the regulations; (3) the motion is not barred by Matter of Shaar, 21 I&N Dec. 541 (BIA 1996), or on any other procedural grounds;(4) clear and convincing evidence is presented indicating a strong likelihood that the marriage is bona fide; and (5) the Immigration and Naturalization Service does not oppose the motion or bases its opposition solely on Matter of Arthur, 20 I&N Dec. 475 (BIA 1992). Matter of H-A-, Interim Decision 3394 (BIA 1999), and Matter of Arthur, supra, modified.


SALAZAR, 23 I&N Dec. 223 (BIA 2002)

ID 3462 (PDF)

(1) An alien whose adjudication of guilt was deferred pursuant to article 42.12, section 5(a) of the Texas Code of Criminal Procedure following her plea of guilty to possession of a controlled substance is considered to have been convicted of the offense. Matter of Roldan, Interim Decision 3377 (BIA 1999), reaffirmed.

(2) In Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), the United States Court of Appeals for the Ninth Circuit overruled in part Matter of Roldan, supra, which will not be applied in cases arising within the jurisdiction of the Ninth Circuit.

(3) In light of the decisions in United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2000), cert. denied, 122 S. Ct. 305 (2001), and United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997), the decision of the Board of Immigration Appeals in Matter of K-V-D-, Interim Decision 3422 (BIA 1999), will not be applied in cases arising within the jurisdiction of the Fifth Circuit.


VASQUEZ-MUNIZ, 23 I&N Dec. 207 (BIA 2002)

ID 3461 (PDF)

(1) An offense defined by state or foreign law may be classified as an aggravated felony as an offense “described in” a federal statute enumerated in section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) (1994 & Supp. V 1999), even if it lacks the jurisdictional element of the federal statute.

(2) Possession of a firearm by a felon in violation of section 12021(a)(1) of the California Penal Code is an aggravated felony under section 101(a)(43)(E)(ii) of the Act because it is “described in” 18 U.S.C. § 922(g)(1) (1994). Matter of Vasquez-Muniz, Interim Decision 3440 (BIA 2000), overruled.


SOTELO, 23 I&N Dec. 201 (BIA 2001)

ID 3460 (PDF)

An applicant for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (Supp. V 1999), need not meet a threshold test requiring a showing of “unusual or outstanding equities” before a balancing of the favorable and adverse factors of record will be made to determine whether relief should be granted in the exercise of discretion. Matter of C-V-T-, Interim Decision 3342 (BIA 1998), clarified


MORAGA, 23 I&N Dec. 195 (BIA 2001)

ID 3459 (PDF)

A child born out of wedlock in El Salvador on or after December 16, 1965, is placed in the same legal position as one born in wedlock once the child’s paternity is established and therefore qualifies as a “legitimated” child under section 101(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(C) (1994). Matter of Ramirez, 16 I&N Dec. 222 (BIA 1977), modified.


G-Y-R-, 23 I&N Dec. 181 (BIA 2001)

ID 3458 (PDF)

(1) When an alien fails to appear at removal proceedings for which notice of the hearing was served by mail, an in absentia order may only be entered where the alien has received, or can be charged with receiving, a Notice to Appear (Form I-862) informing the alien of the statutory address obligations associated with removal proceedings and of the consequences of failing to provide a current address, pursuant to section 239(a)(1)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a)(1)(F) (Supp. V 1999).

(2) Entry of an in absentia order of removal is inappropriate where the record reflects that the alien did not receive, or could not be charged with receiving, the Notice to Appear that was served by certified mail at an address obtained from documents filed with the Immigration and Naturalization Service several years earlier.


CRAMMOND, 23 I&N Dec. 179 (BIA 2001)

ID 3457 (PDF)

(1) The Board of Immigration Appeals lacks jurisdiction over a motion to reopen where the motion is withdrawn, within the meaning of 8 C.F.R. § 3.2(d) (2001), by the departure of the alien from the United States prior to a ruling on the motion.

(2) When the Board is presented with evidence that it has granted a motion to reopen after the alien’s departure from the United States, it is appropriate to reconsider and vacate the prior order on jurisdictional grounds. Matter of Crammond, 23 I&N Dec. 9 (BIA 2001), vacated.


MARTINEZ-RECINOS, 23 I&N Dec. 175 (BIA 2001)

ID 3456 (PDF)

A conviction for perjury in violation of section 118(a) of the California Penal Code constitutes a conviction for an aggravated felony under section 101(a)(43)(S) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(S) (Supp. V 1999).


SONG, 23 I&N Dec. 173 (BIA 2001)

ID 3455 (PDF)

Where a criminal court vacated the 1-year prison sentence of an alien convicted of a theft offense and revised the sentence to 360 days of imprisonment, the alien does not have a conviction for an aggravated felony within the meaning of section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (Supp. V 1999).


RODRIGUEZ-TEJEDOR, 23 I&N Dec. 153 (BIA 2001)

ID 3454 (PDF)

(1) The automatic citizenship provisions of section 320 of the Immigration and Nationality Act, 8 U.S.C. § 1431 (1994), as amended by the Child Citizenship Act of 2000, Pub. L. No. 106-395, 114 Stat. 1631 (“CCA”), are not retroactive and, consequently, do not apply to an individual who resided in the United States with his United States citizen parents as a lawful permanent resident while under the age of 18 years, but who was over the age of 18 years on the CCA effective date.

(2) The respondent, who resided in the United States with his United States citizen adoptive parents as a lawful permanent resident while under the age of 18 years, but who was over the age of 18 years on the CCA effective date, is ineligible for automatic citizenship under section 320 of the Act.


OLIVARES, 23 I&N Dec. 148 (BIA 2001)

ID 3453 (PDF)

Under United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001), and United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2001), a Texas conviction for felony DWI is not classifiable as a crime of violence conviction under 18 U.S.C. § 16(b) (1994) for purposes of removability in cases arising in the United States Court of Appeals for the Fifth Circuit; accordingly, in cases arising in the Fifth Circuit, Matter of Puente, Interim Decision 3412 (BIA 1999), will not be applied.


FINNAIR FLIGHT AY103, 23 I&N Dec. 140 (BIA 2001)

ID 3452 (PDF)

A carrier is subject to a fine under section 273(a) of the Immigration and Nationality Act, 8 U.S.C. § 1323(a) (1994), 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 C.F.R. § 212.1(g) (1997).


ROJAS, 23 I&N Dec. 117 (BIA 2001)

ID 3451 (PDF)

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 section 236(c) of the Immigration and Nationality Act, 8 U.S.C. § 1226(c) (Supp. V 1999), even if the alien is not immediately taken into custody by the Immigration and Naturalization Service when released from incarceration.


ARTIGAS, 23 I&N Dec. 99 (BIA 2001)

ID 3450 (PDF)

An Immigration Judge has jurisdiction to adjudicate an application for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended, when the respondent is charged as an arriving alien without a valid visa or entry document in removal proceedings.


TORRES-VARELA, 23 I&N Dec. 78 (BIA 2001)

ID 3449 (PDF)

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, Interim Decision 3423 (BIA 1999), distinguished.


PATINO, 23 I&N Dec. 74 (BIA 2001)

ID 3448 (PDF)

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 Board of Immigration Appeals.


MONREAL, 23 I&N Dec. 56 (BIA 2001)

ID 3447 (PDF)

(1) To establish “exceptional and extremely unusual hardship,” an applicant for cancellation of removal under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (Supp. V 1999), must demonstrate that his or her spouse, parent, or child would suffer hardship that is substantially beyond that which would ordinarily be expected to result from the alien’s deportation, but need not show that such hardship would be “unconscionable.”

(2) Although many of the factors that were considered in assessing “extreme hardship” for suspension of deportation should also be considered in evaluating “exceptional and extremely unusual hardship,” an applicant for cancellation of removal must demonstrate hardship beyond that which has historically been required in suspension of deportation cases involving the “extreme hardship” standard.

(3) In establishing eligibility for cancellation of removal, only hardship to qualifying relatives, not to the applicant himself or herself, may be considered, and hardship factors relating to the applicant may be considered only insofar as they might affect the hardship to a qualifying relative.


KAO AND LIN, 23 I&N Dec. 45 (BIA 2001)

ID 3446 (PDF)

(1) In evaluating an application for suspension of deportation, the hardship to the applicant’s United States citizen child must be given careful consideration, as the applicant’s eligibility for relief may be established by demonstrating that his or her deportation would result in extreme hardship to the child.

(2) The standard for determining “extreme hardship” in applications for suspension of deportation is also applied in adjudicating petitions for immigrant status under section 204(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1154(a)(1) (1994 & Supp. V 1999), as amended, and waivers of inadmissibility under section 212(i) of the Act, 8 U.S.C. § 1182(i) (Supp. V 1999).

(3) The respondents met the extreme hardship requirement for suspension of deportation where their oldest daughter, who is a 15-year-old United States citizen, has spent her entire life in the United States, has been completely integrated into the American lifestyle, and is not sufficiently fluent in the Chinese language to make an adequate transition to daily life in her parents’ native country of Taiwan. Matter of Pilch, 21 I&N Dec. 627 (BIA 1996), distinguished.


HERRERA, 23 I&N Dec. 43 (BIA 2001)

ID 3445 (PDF)

Respondent’s motion for a stay of deportation, pending consideration of his simultaneously filed motion to reopen and reconsider, is granted in light of the decision of the United States Court of Appeals for the Fifth Circuit in United States v. Chapa-Garza, 2001 WL 209468(5th Cir. 2001), which held that a conviction for driving while intoxicated in violation of section 49.09 of the Texas Penal Code is not a conviction for a crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (Supp. V 1999).


NORTHWEST AIRLINES FLIGHT NW1821, 23 I&N Dec. 38 (BIA 2001)

ID 3444 (PDF)

A carrier is subject to fine under section 231(b) of the Immigration and Nationality Act, 8 U.S.C. § 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.


CRAMMOND, 23 I&N Dec. 9 (BIA 2001), vacated, 23 I&N Dec. 179

ID 3443 (PDF)

(1) A conviction for “murder, rape, or sexual abuse of a minor” must be for a felony offense in order for the crime to be considered an aggravated felony under section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (Supp. V 1999).

(2) In determining whether a state conviction is for a felony offense for immigration purposes, the Board of Immigration Appeals applies the federal definition of a felony set forth at 18 U.S.C. § 3559(a)(5) (1994).


GOOLCHARAN, 23 I&N Dec. 5 (BIA 2001)

ID 3442 (PDF)

The regulatory deadline for filing a motion to reopen or motion to reconsider before the Immigration Judge is determined by the date on which the Immigration Judge entered a final administrative order, and the regulatory deadline is not affected by subsequent actions taken by the Immigration and Naturalization Service in the course of executing the Immigration Judge’s order.


OPARAH, 23 I&N Dec. 1 (BIA 2000)

ID 3441 (PDF)

A motion to remand submitted during the pendency of an appeal from an Immigration Judge’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, nor is it excepted from the numerical restriction that permits the filing of only one motion to reopen.