212 Crimes Involving Moral Turpitude

Section 212(a) of Act

An alien convicted of, or who admits having committed, or who admits committing acts which constitiutes the essential elements of a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to committ such a crime is inadmissible. Section 212(a)(2)(A)(i)(I) of the Act.

Moral turpitude refers generally to conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality and the duties owed between persons or society in general. See Matter of Franklin, 20 I&N Dec. 867, 868 (BIA 1994). Moral turpitude also has been defined as an act which is per se morally reprehensible and intrinsically wrong, or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude. See Matter of Torres-Varela, 23 I&N Dec. 78, 85 (BIA 2001); see also Matter of Franklin, supra; Matter of Fualaau, 21 I&N Dec. 475 (BIA 1996). The seriousness of a criminal offense, the severity of the sentence imposed, or the particular circumstances of the crime's commission do not determine whether the crime involves moral turpitude. Matter of Serna, 20 I&N Dec. 579, 581 (BIA 1992); Matter of Short, 20 I&N Dec. 136, 137(BIA 1989).

To determine whether a specific crime constitutes a crime involving moral turpitude, the immigration judge may look to the language of the statute defining the crime, the specific elements of the offense, and the record of conviction. See Matter of Torres-Varela, supra, at 84; Matter of L-V-C-, 22 I&N Dec. 594 (BIA 1999); Matter of Y-, 1 I&N Dec. 137 (BIA 1941). This approach is analogous to the categorical approach set forth in Taylor v. United States, 495 U.S. 575 (1990).

When a statute is divisible, that is, some of the prohibited conduct involves moral turpitude and some does not, then the judgment of conviction may be consulted to determine the nature of the underlying offense (Matter of Vargas, 23 I&N Dec. 651 (BIA 2004)) and if necessary, to authoritative court decisions in the convicting jurisdiction that elucidate the meaning of equivocal statutory language. See Matter of Olquin, 23 I&N Dec. 896, 897 n.1 (BIA 2006). A probation report cannot be considered in making the determination. See Matter of Y-, 1 I&N Dec. 137 (BIA 1941) .

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Admitting a Crime Involving Moral Turpitude

Section 212(a) of Act

Before an admission of the elements of a crime of moral turpitude can result in a finding of inadmissibility, three requirements must be met. First, the admitted conduct must constitute the essential elements of a crime in the jurisdiction where it occurred. Second, the applicant for admission must have been provided with the definition and essential elements of the crime prior to his admission. Third, his admission must have been voluntary . Matter of J, 2 I.& N. 285 (BIA 1945); Matter of E- V-, 5 I. & n. 194 (BIA 1953); Matter of G-M-, 7 I. & N. 40 (BIA 1955, A.G. 1956); Matter of K, 7 I. & N. 594 (BIA 1957). Also, Pazcoguin v. Radcliff, 292 F.3d 1209, 1215-16 (9th Cir. 2002).

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212 Controlled Substance Violators

Section 212(a) of Act

Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible. Section 212(a)(2)(A)(i)(II) of the Act. As a matter of policy in cases dealing with drug-related convictions under state law, any alien who has been accorded rehabilitative treatment pursuant to a state statute will not be deported if he establishes that he would have been eligible for federal first offender treatment under the provisions of 18 U.S.C. §§ 3607(a) (1988) had he been prosecuted under federal law. Matter of Manrique, 21 I&N Dec. 58 (BIA 1995).

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212 Multiple Convictions

Section 212(a) of Act

Section 212(a)(2)(B) of the Act renders inadmissible any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more.

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212 Traffickers in a Controlled Substance

Section 212(a) of Act

Any alien who the consular officer or the Attorney General knows or has reason to believe is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so, is inadmissible. Section 212(a)(2)(C) of the Act.

It is well-established that a conviction is not required to establish a finding of inadmissability under section 212(a)(2)(C) of the Act. Matter of Favela, 16 I&N Dec. 753 (BIA 1979). The immigration officer must know or have reason to believe at the time of inspection and admission that the alien is involved in illicit trafficking. Matter of Rocha, 20 I&N Dec. 944 (BIA 1995). The BIA has held that it is reasonable to require that the respondent knowingly engaged in trafficking. Matter of Rico, 16 I&N Dec. 181 (1977). A single attempt at smuggling by an applicant who was found to be a knowing and conscious participant in the attempt to smuggle marijuana into the United States is sufficient to render an applicant an illicit trafficker in drugs. Id.; see also Matter of McDonald and Brewster, 15 I&N Dec. 203 (BIA 1975) (aliens who entered country in possession of six marijuana cigarettes brought for personal use were not excludable under section 212(a)(23)).

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212 Public Charge

Section 212(a) of Act

Section 212(a)(4)(A) of the Act renders inadmissible any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General or the Secretary of the Department of Homeland Security at the time of application for admission or adjustment of status, is likely at any time to become a public charge.

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212 Aliens Present Without Permission or Parole

 Section 212(a) of Act

An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible. Section 212(a)(6)(A)(i) of the Act.

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212 Fraud and Misrepresentation

Section 212(a) of Act

Section 212(a)(6)(C)(i) of the Act renders inadmissible any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

Section 212(a)(6)(C)(i) of the Act provides for a waiver of fraud and misrepresentation pursuant to section 212(i) of the Act.

A misrepresentation is material if the alien is excludable on the true facts or if it tends to shut off a line of inquiry which is relevant to the alien's eligibility, and which might have resulted in a proper determination that he be excluded. Matter of Ng, 17 I&N Dec. 536, 537 (BIA 1980) (citing Matter of S & B-C-, 9 I&N Dec. 436 (BIA 1960; A.G. 1961)). A false statement is “material” if it could have a natural tendency to end a possible line of questioning or otherwise influence the decision of the Service. Kungys v. United States, 485 U.S. 759, 772 (1988).

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212 False Claim to Citizenship

Section 212(a) of Act

Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this Act (including section 274A of the Act) or any other Federal or State law is inadmissible. Section 212(a)(6)(C)(ii) of the Act.

A false claim to United States citizenship that is timely retracted might not support a finding of inadmissibility under this ground. Matter of M-, 9 I&N Dec. 118 (BIA 1960) (finding timely retraction where an alien corrected false statements to an immigration officer voluntarily and prior to exposure of the misrepresentation); see also Matter of Namio, 14 I&N Dec. 412 (BIA 1973) (finding that an alien's correction of a false statement made under oath to a border patrol officer, when 1 year had passed and disclosure of the falsity was imminent, was not a timely retraction).

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212 Alien Smugglers

Section 212(a) of Act

Section 212(a)(2)(E)(i) renders inadmissible any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.

(iii) Waiver authorized.-For provision authorizing waiver of clause (i), see subsection (d)(11).

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212 Lack of Documents - Immigrants

 Section 212(a) of Act

Any immigrant at the time of application for admission is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this Act, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the regulations issued by the Attorney General under section 211(a) or whose visa has been issued without compliance with the provisions of section 203, is inadmissible. Section 212(a)(7)(A)(i) of the Act.

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212 Lack of Documents - Nonimmigrants

 Section 212(a) of Act

Any nonimmigrant who is not in possession of a passport valid for a minimum of six months from the date of the expiration of the initial period of the alien's admission or contemplated initial period of stay authorizing the alien to return to the country from which the alien came or to proceed to and enter some other country during such period, or is not in possession of a valid nonimmigrant visa or border crossing identification card at the time of application for admission, is inadmissible. Section 212(a)(7)(B)(i) of the Act.

Every alien is considered to be an immigrant unless he is able to establish that he is entitled to a nonimmigrant classification. The burden is on the alien to establish he is a nonimmigrant.

Matter of Healy and Goodchild, 17 I&N Dec. 22 (BIA 1979).

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212 Aliens Previously Removed

Section 212(a) of Act

Section 212(a)(9)(A)(i) renders inadmissible any arriving alien who has been ordered removed under section 235(b)(1) or at the end of proceedings under section 240 initiated upon the alien's arrival in the United States and who again seeks admission within 5 years of the date of such removal (or within 20 years in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony).

Section 212(a)(9)(A)(ii) renders inadmissible any alien not described in section 212(a)(9)(A)(i) who-

(I) has been ordered removed under section 240 or any other provision of law, or

(II) departed the United States while an order of removal was outstanding,

and who seeks admission within 10 years of the date of such alien's departure or removal (or within 20 years of such date in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony).

(iii) Exception. Clauses (i) and (ii) shall not apply to an alien seeking admission within a period if, prior to the date of the alien's reembarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory, the Attorney General has consented to the alien's reapplying for admission.

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212 Unlawfully Present Aliens

Section 212(a) of Act

Any alien (other than an alien lawfully admitted for permanent residence) who was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States, is inadmissible. Section 212 (a)(9)(B)(i) of the Act.

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, 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. Matter of Lemus, 24 I&N Dec. 373 (BIA 2007); see also Matter of Rodarte, 23 I&N Dec. 905, 908-10 (BIA 2006) (holding that section 212(a)(9)(B)(i)(II) of the Act applies to aliens who depart the United States after being unlawfully present for 1 year or longer and, within 10 years of such departure, again seek admission, either at the border or from within the United States by means of adjustment of status).

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212 Unlawfully Present after Previous Immigration Violations

Section 212(a) of Act

Any alien who has been unlawfully present in the United States for an aggregate period of more than 1 year, or has been ordered removed under section 235(b)(1), section 240, or any other provision of law, and who enters or attempts to reenter the United States without being admitted is inadmissible.

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, even if the alien obtained the Attorney General’s permission to reapply for admission prior to reentering unlawfully. 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. Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006).

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237 Inadmissible Aliens

Section 237(a) of Act

Section 237(a)(1)(A) of the Act renders deportable any alien (including an alien crewman) who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time.

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237 Present in Violation of Law

Section 237(a) of Act

Any alien who is present in the United States in violation of this Act or any other law of the United States, or whose nonimmigrant visa (or other documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 221(i), is deportable. Section 237(a)(1)(B) of the Act.

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237 Violated Conditions of Nonimmigrant Status

Section 237(a) of Act

Section 237(a)(1)(C) of the Act renders deportable any alien (including an alien crewman) who was admitted as a nonimmigrant, and who has failed to maintain the nonimmigrant status in which the alien was admitted or to which it was changed under section 248 , or to comply with the conditions of any such status, or whom the Secretary of Health and Human Services certifies has failed to comply with terms, conditions, and controls that were imposed under section 212(g).

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237 Alien Smugglers

Section 237(a) of Act

Any alien who (prior to the date of entry, at the time of any entry, or within 5 years of the date of any entry) knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is deportable. Section 237(a)(1)(E) of the Act.

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237 One Crime Involving Moral Turpitude Within Five Years

Section 237(a) of Act

Any alien who is convicted of a crime involving moral turpitude committed within five years (or ten years in the case of an alien provided lawful permanent resident status under section 245(j) of this title) after the date of admission for which a sentence of a year or longer may be imposed is deportable. Section 237(a)(2)(A)(i). The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt and the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. Any reference to a term of imprisonment of a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part. Section 101(a)(48).

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237 Two Crimes Involving Moral Turpitude

Section 237(a) of Act

Any alien who at any time after admission is convicted or two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the conviction were in a single trial, is deportable. The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt and the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

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237 Aggravated Felons

Section 237(a) of Act

Any alien who is convicted of an aggravated felony at any time after admission is deportable. The term “aggravated felony” is defined in section 101(a)(43) of the Immigration and Nationality Act. To determine whether a particular conviction is an aggravated felony,” the Court first applies the “categorical” approach looking only to the statutory definition of the offense. If the statutory definition of the offense of conviction is broader than the definition of the relevant removal offense, the Court applies a “modified” categorical approach in an attempt to determine the conduct for which the defendant was actually convicted. Under the modified categorical approach, the Court looks beyond the language of the statute to a narrow specified set of documents that are part of the record of conviction in order to determine the conduct for which the alien was convicted. See generally Shepard v. United States, 544 U.S. 13 (2005).

The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt and the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. Any reference to a term of imprisonment of a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part. Section 101(a)(48).

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237 Controlled Substance Violators

Section 237(a) of Act

Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802), other than a single offense involving possession for one’s own use of thirty grams or less of marijuana, is deportable. Section 237(a)(2)(B)(i) of the Act. As a matter of policy in cases dealing with drug-related convictions under state law, any alien who has been accorded rehabilitative treatment pursuant to a state statute will not be deported if he establishes that he would have been eligible for federal first offender treatment under the provisions of 18 U.S.C. §§ 3607(a) (1988) had he been prosecuted under federal law. Matter of Manrique, 21 I&N Dec. 58 (BIA 1995).

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237 Firearm Offenses

 Section 237(a) of Act

Any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18, United States Code) in violation of any law is deportable. Section 237(a)(2)(C) of the Act. Where the statute under which an alien was convicted encompasses offenses that constitute firearms violations and offenses that do not, the Court looks to the record of conviction and to other documents admissible as evidence in proving a criminal conviction to determine whether the specific offense of which the alien was convicted constitutes a firearms violation within the meaning of section 237(a)(2)(C) of the Act. Matter of Teixeira, 21 I&N Dec. 316 (1996); Matter of Madrigal, 21 I&N Dec. 323 (BIA 1996); Matter of Pichardo, 21 I&N Dec. 330 (BIA 1996).

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237 Domestic Violence

 Section 237(a) of Act

Section 237(a)(2)(E)(i) provides that any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable. For purposes of this clause, the term “crime of domestic violence” means any crime of violence (as defined in section 16 of title 18, United States Code) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabitating with or has cohabitated with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who protected from that individual’s acts under the domestic or family laws of the United States or any State, Indian tribal government, or unit of local government. In order for a crime to be considered a crime of domestic violence, the crime must first be classified as a crime of violence. 18 USC 16 defines a crime of violence as: 1) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or 2) any other offense that is a felony and 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. This ground of deportability only applies to convictions occurring after September 30, 2996. IIRAIRA 350(b).

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237 Violators of Protection Orders

 Section 237(a) of Act

Section 237(a)(2)(E)(ii) of the Act renders any alien who at any time after entry is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued.

For purposes of this clause, the term "protection order" means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding.

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237 False Claim to Citizenship

 Section 237(a) of Act

Any alien who falsely represents, or has falsely represented, himself to be a citizen of the United States for any purpose or benefit under this Act (including section 274A) or any Federal or State law is deportable. Section 237(a)(3)(D) of the Act.

A false claim to United States citizenship that is timely retracted might not support a finding of inadmissibility under this ground. Matter of M-, 9 I&N Dec. 118 (BIA 1960) (finding timely retraction where an alien corrected false statements to an immigration officer voluntarily and prior to exposure of the misrepresentation); see also Matter of Namio, 14 I&N Dec. 412 (BIA 1973) (finding that an alien's correction of a false statement made under oath to a border patrol officer, when 1 year had passed and disclosure of the falsity was imminent, was not a timely retraction).

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237 Termination for U.S. Citizenship

 Section 237(a) of Act

The burden of proof in establishing alienage in removal proceedings is on the Department of Homeland Security (DHS ); 8 C.F.R. 1240.8(a) see also United States ex rel. Bilokumsky v. Tod, 263 U.S. 149 (1923). Section 101(a)(3) of the Act defines an “alien” as “any person not a citizen or national of the United States.” Citizenship and nationality are acquired only by birth or naturalization. Matter of Navas-Acosta, 23 I. & N. Dec. 586 (BIA 2003).

When there is a claim of citizenship, one born abroad is presumed to be an alien and must go forward to establish his claim to citizenship through, credible evidence. Matter of Rodriguez-Tejedor, 23 I&N Dec. 153, 164 (BIA 2001) (citing Matter of Leyva, 16 I&N Dec. 118, 119 (BIA 1977)); Matter of Tijerina-Villareal, 13 I&N Dec. 327, 330 (BIA 1969); Matter of A-M, 7 I&N Dec. 332, 336 (BIA 1956).

The applicable law for transmitting citizenship to a child born abroad when one parent is a United States citizen is the statute that was in effect at the time of the child's birth. Matter of Rodriguez-Tejedor, 23 I. & N. Dec. 153, 163 (BIA 2001).

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