(1) Section 348(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, enacted as Division C of the Departments of Commerce, Justice, and State, and the Judiciary Appropriations Act for 1997, Pub. L. No. 104-208, 110 Stat. 3009, _____ (“IIRIRA”), enacted on September 30, 1996, amended section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (1994), to add restrictions precluding a grant of a waiver to any alien admitted as a lawful permanent resident who either has been convicted of an aggravated felony since the date of admission or did not have 7 years of continuous residence prior to the initiation of immigration proceedings.

(2) Section 348(b) of the IIRIRA provides that the restrictions in the amendments to section 212(h) of the Act apply to aliens in exclusion or deportation proceedings as of September 30, 1996, unless a final order of deportation has been entered as of such date.

(3) An aggravated felon who had a final administrative order of deportation as of September 30, 1996, would be subject to the restrictions on eligibility for a section 212(h) waiver if his proceedings were thereafter reopened; therefore, his motion to reopen deportation proceedings to apply for adjustment of status in conjunction with a section 212(h) waiver was properly denied.

Matter of Michel, 21 I&N Dec. 1101 (BIA 1998)

(1) Pursuant to 62 Fed. Reg. 10,312, 10,369 (to be codified at 8 C.F.R. § 240.10(a)(1) (interim, effective Apr. 1, 1997), an Immigration Judge must ascertain whether an alien desires representation in removal proceedings. >

(2) An alien who has not previously been admitted to the United States as an alien lawfully admitted for permanent residence is statutorily eligible for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act (to be codified at 8 U.S.C. § 1182(h)), despite his conviction for an aggravated felony.

Sentence Enhancement

Matter of K-V-D-, 22 I&N Dec. 1163 (BIA 1999)

(1) Where a circuit court of appeals has interpreted the definition of an “aggravated felony” under section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) ( 1994), only for purposes of criminal sentence enhancement, the Board of Immigration Appeals may interpret the phrase differently for purposes of implementing the immigration laws in cases arising within that circuit.

(2) An alien convicted in Texas of simple possession of a controlled substance, which would be a felony under Texas law but a misdemeanor under federal law, is not convicted of an aggravated felony within the meaning of section 101(a)(43)(B) of the Act. Matter of L-G-, 21 I&N Dec. 89 (BIA 1995), affirmed.

Sexual Abuse of a Minor

Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999)

The offense of indecency with a child by exposure pursuant to section 21.11(a)(2) of the Texas Penal Code Annotated constitutes sexual abuse of a minor and is therefore an aggravated felony within the meaning of section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (Supp. II 1996).

Matter of Crammond, 23 I&N Dec. 38 (BIA 2001) (vacated by Matter of Crammond, 23 I&N Dec. 179 (BIA 2001))

(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).

            Matter of Small, 23 I&N Dec. 448 (BIA 2002)

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)(A) (2000).

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

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).

Theft Offenses

Matter of V-Z-S-, 22 I&N Dec. 1338 (BIA 2000)

(1) A taking of property constitutes a “theft offense” within the definition of an aggravated felony in section 101(a)(43)(G) of the Immigration and Nationality Act (“Act”), 8 U.S.C. § 1101(a)(43)(G) (Supp. IV 1998), whenever there is criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent.

(2) The respondent’s conviction for unlawful driving and taking of a vehicle in violation of section 10851 of the California Vehicle Code is a “theft offense” under section 101(a)(43)(G) of the Act.

Matter of Bahta, 22 I&N Dec. 1381 (BIA 2000) (Possession of Stolen Property)

(1) The respondent’s conviction for attempted possession of stolen property, in violation of sections 193.330 and 205.275 of the Nevada Revised Statutes, is a conviction for an attempted “theft offense (including receipt of stolen property),” and therefore an aggravated felony, within the meaning of sections 101(a)(43)(G) and (U) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(G) and (U) (Supp. IV 1998).

(2) The Immigration and Naturalization Service retains prosecutorial discretion to decide whether or not to commence removal proceedings against a respondent subsequent 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 Garcia-Madruga, 24 I&N Dec. 436 (BIA 2008)

(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.

Matter of CARDIEL, 25 I&N Dec. 12 (BIA 2009)

A conviction for receipt of stolen property under section 496(a) of the California Penal Code, with a sentence of imprisonment of at least 1 year, categorically qualifies as a receipt of stolen property aggravated felony conviction under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2006).

Transportation of Undocumented Aliens

Matter of Ruiz, 22 I&N Dec. 486 (BIA 1999)

An alien who is convicted of transporting an illegal alien within the United States in violation of section 274(a)(1)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1324(a)(1)(A)(ii) (1994), was convicted of an aggravated felony as defined in section 101(a)(43)(N) of the Act, 8 U.S.C. § 1101(a)(43)(N) (Supp. II 1996), and is therefore deportable under section 241(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1251(a)(2)(A)(iii) (1994), as an alien convicted of an aggravated felony. Matter of I-M-, 7 I&N Dec. 389 (BIA 1957), distinguished.

AIRLINE FINES

Matter of Varig Brazilian Airlines Flight No. 830, 21 I&N Dec. 744 (BIA 1997)

(1) The reasonable diligence standard of section 273(c) of the Immigration and Nationality Act, 8 U.S.C. § 1323(c) (Supp. III 1991), is applied both to the determination of whether the passenger was an alien and to the adequacy of the carrier’s examination of the passenger’s documents.

(2) In a determination of reasonable diligence under section 273(c) of the Act, the carrier must demonstrate by a preponderance of the evidence that it has established, and its staff has complied with, procedures to ensure that all of its passengers’ travel documents have been inspected prior to boarding so that only those with valid passports and visas are permitted to board.

(3) Where a document is altered, counterfeit, or expired, or where a passenger is an imposter, to the extent that a reasonable person should be able to identify the deficiency, a carrier is required to refuse boarding as a matter of reasonable diligence.

(4) In denying reconsideration, the Board of Immigration Appeals reaffirms its decision that, in fine proceedings, the reasonable diligence standard is applied both to the determination of whether a passenger is an alien and to the adequacy of the carrier’s examination of the passenger’s documents.

Matter of Air India Flight No. 101, 21 I&N Dec. 890 (BIA 1997)

A decision of the Immigration and Naturalization Service regarding the imposition of a fine that does not state the specific reasons for the determination fails to meet the requirements of 8 C.F.R. § 103.3(a)(1) (1996) and is inadequate for purposes of appellate review.

Matter of Air India Airlines Flight No. AI 101, 22 I&N Dec. 681 (BIA 1999)

A carrier is subject to fine under section 273(a) of the Immigration and Nationality Act, 8 U.S.C. § 1323(a) (Supp. V 1993), for bringing an alien passenger without proper documents to the United States even though the alien passenger is a lawful permanent resident who was subsequently granted a waiver under 8 C.F.R. § 211.1(b)(3) (1994).

Matter of United Airlines Flight UA802, 22 I&N Dec. 777 (BIA 1999)

A carrier is subject to fine under section 273(a) of the Immigration and Nationality Act, 8 U.S.C. § 1323(a) (1994), when an alien passenger it has transported to the United States is paroled into the country but is not granted a waiver of documents under 8 C.F.R. § 212.1(g) (1995).

Matter of Finnair Flight AY103, 23 I&N Dec. 140 (BIA 2001)

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).

Matter of Northwest Airlines Flight NW 1821, 21 I&N Dec. 38 (BIA 2001)

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.

AMERICAN BAPTIST CHURCHES (ABC) SETTLEMENT

Matter of Morales, 21 I&N Dec. 130 (BIA 1995, 1996)

(1) Where an alien in exclusion or deportation proceedings requests administrative closure pursuant to the settlement agreement set forth in American Baptist Churches et al. v. Thornburgh, 760 F. Supp. 797 (N.D.Cal.1991) ("ABC agreement"), the function of the Executive Office for Immigration Review ("EOIR") is restricted to the inquiries required under paragraph 19 of the agreement, i.e., (1) whether an alien is a class member, (2) whether he has been convicted of an aggravated felony, and (3) whether he poses one of the three safety concerns enumerated in paragraph 17.

(2) If a class member requesting administrative closure under the ABC agreement has not been convicted of an aggravated felony and does not fall within one of the three listed categories of public safety concerns under paragraph 17 of the agreement, EOIR must administratively close the matter to afford the alien the opportunity to pursue his rights in a special proceeding before the Immigration and Naturalization Service.

(3) If the applicant is subsequently found ineligible for the benefits of the ABC agreement in the nonadversarial proceeding before the asylum officer, or if he is denied asylum after a full de novo hearing, the Service may reinstitute exclusion or deportation proceedings by filing a motion with the Immigration Judge to recalendar the case, and such motion need only show, through evidence of an asylum officer's decision in the matter, that the class member's rights under paragraph 2 of the agreement have been exercised.

(4) Neither the Board of Immigration Appeals nor the Immigration Judges will review the Service's eligibility determinations under paragraph 2 of the ABC agreement.

Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996)

(1) Administrative closure of a case is used to temporarily remove the case from an Immigration Judge's calendar or from the Board of Immigration Appeal's docket. A case may not be administratively closed if opposed by either of the parties. Administrative closing of a case does not result in a final order. It is merely an administrative convenience which allows the removal of cases from the calendar in appropriate situations.

(2) The settlement agreement under American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D.Cal.1991) ("ABC"), specifically states that nothing in the agreement shall limit the right of a class member to pursue other legal rights to which he or she might be entitled under the Immigration and Nationality Act. This language is mandatory and does not indicate that such action by an alien would be curtailed by the administrative closing of each class member's case or postponed until the eventual final resolution of each class member's remedies under the settlement agreement itself.

(3) An ABC alien's right to apply for relief from deportation is not prohibited due to the administrative closure of his or her case. Such an alien, therefore, may file a motion to reopen with the administrative body which administratively closed his or her case in order to pursue issues or relief from deportation which were not raised in the administratively closed proceedings. Such motion must comply with all applicable regulations in order for the alien's case to be reopened.

(4) An alien who has had his or her case reopened and who receives an adverse decision from an Immigration Judge in the reopened proceedings must file an appeal of that new decision, in accordance with applicable regulations, in order to vest the Board with jurisdiction to review the Immigration Judge's decision on the issues raised in the reopened proceedings. That appeal would be a separate and independent appeal from any previously filed appeal and would not be consolidated with an appeal before the Board regarding issues which have been administratively closed.

(5) Any appeal pending before the Board regarding issues or forms of relief from deportation which have been administratively closed by the Board prior to the reopening of the alien's proceedings will remain administratively closed. A motion to reinstate an appeal is required before issues which have been administratively closed can be considered by the Board.

APPEALS

            Factfinding on Appeal

            Matter of S-H-, 23 I&N Dec. 462 (BIA 2002)

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 1999), and Matter of Becerra-Miranda, 12 I&N Dec. 358 (BIA 1967), superseded.

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

(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.

              Standard and Scope of Review–BIA

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

(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.

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

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.

Timeliness

Matter of Lopez, 22 I&N Dec. 16 (BIA 1998)

Where the Board of Immigration Appeals dismisses an appeal as untimely, without adjudication on the merits, the Board retains jurisdiction over a motion to reconsider its dismissal of the untimely appeal to the extent that the motion challenges the finding of untimeliness or requests consideration of the reasons for untimeliness. Matter of Mladineo, 14 I&N Dec. 591 (BIA 1974), modified.

            Matter of Liadov, 23 I&N Dec. 990 (BIA 2006)

(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.

Waiver of Right to Appeal

Matter of L-V-K-, 22 I&N Dec. 976 (BIA 1999)

(1) An Immigration Judge’s order of deportation becomes a final administrative decision upon an alien’s waiver of the right to appeal.

(2) Where an alien files a motion to remand during the pendency of an appeal from an Immigration Judge’s denial of a motion to reopen a final administrative decision and more than 90 days have passed since entry of that final administrative decision, the Board of Immigration Appeals lacks jurisdiction to adjudicate the motion because it is time-barred by 8 C.F.R. § 3.2(c)(2) (1999).

Matter of Ocampo, 22 I&N Dec. 1301 (BIA 2000)

Voluntary departure may not be granted prior to the completion of removal proceedings without an express waiver of the right to appeal by the alien or the alien’s representative.

Matter of Rodriguez-Diaz, 22 I&N Dec. 1320 (BIA 2000)

An unrepresented alien who accepts an Immigration Judge’s decision as “final” does not effectively waive the right to appeal where the Immigration Judge failed to make clear that such acceptance constitutes an irrevocable waiver of appeal rights; therefore, the Board of Immigration Appeals has jurisdiction to consider the alien’s appeal.

Matter of Patino, 23 I&N Dec. 74 (BIA 2001)

A party wishing to challenge the validity of an appeal waiver may file either a motion to reconsider with the Immigration Judge or an appeal directly with the Board of Immigration Appeals.

ASYLUM

            Adjustment of Status

            Matter of K-A-, 23 I&N Dec. 661 (BIA 2004)

(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.

              Matter of L-K-, 23 I&N Dec. 677 (BIA 2004).

(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.

Country Conditions

Matter of E-P-, 21 I&N Dec. 860 (BIA 1997)

(1) A finding of credible testimony by an asylum applicant is not dispositive as to whether asylum should be granted; rather, the specific content of the testimony, and any other relevant evidence in the record, is also considered.

(2) When evaluating an asylum claim, the changed conditions of the country at issue, as properly established in the record of proceedings, may be a significant factor in concluding that an applicant has not established a well-founded fear of persecution.

Matter of A-E-M-, 21 I&N Dec. 1157 (BIA 1998)

(1) The reasonableness of an alien’s fear of persecution is reduced when his family remains in his native country unharmed for a long period of time after his departure.

(2) Where evidence from the United States Department of State indicates that country conditions have changed after an alien’s departure from his native country and that the Peruvian Government has reduced the Shining Path’s ability to carry out persecutory acts, the alien failed to establish a well-founded fear of persecution in Peru.

(3) An alien who failed to rebut evidence from the United States Department of State indicating that the Shining Path operates in only a few areas of Peru did not establish a well-founded fear of country-wide persecution in that country.

Matter of N-M-A-, 22 I&N Dec. 312 (BIA 1998)

(1) Under 8 C.F.R. § 208.13(b)(1)(i) (1998), where an asylum applicant has shown that he has been persecuted in the past on account of a statutorily-protected ground, and the record reflects that country conditions have changed to such an extent that the asylum applicant no longer has a well-founded fear of persecution from his original persecutors, the applicant bears the burden of demonstrating that he has a well-founded fear of persecution from any new source.

(2) An asylum applicant who no longer has a well-founded fear of persecution due to changed country conditions may still be eligible for a discretionary grant of asylum under 8 C.F.R. § 208.13(b)(1)(ii) only if he establishes, as a threshold matter, compelling reasons for being unwilling to return to his country of nationality or last habitual residence arising out of the severity of the past persecution.

(3) The applicant failed to establish compelling reasons arising out of the severity of the past persecution for being unwilling to return to Afghanistan where he suffered beatings during a month-long detention and the disappearance and likely death of his father.

Countrywide Persecution

Matter of A-E-M-, 21 I&N Dec. 1157 (BIA 1998)

(1) The reasonableness of an alien’s fear of persecution is reduced when his family remains in his native country unharmed for a long period of time after his departure.

(2) Where evidence from the United States Department of State indicates that country conditions have changed after an alien’s departure from his native country and that the Peruvian Government has reduced the Shining Path’s ability to carry out persecutory acts, the alien failed to establish a well-founded fear of persecution in Peru.

(3) An alien who failed to rebut evidence from the United States Department of State indicating that the Shining Path operates in only a few areas of Peru did not establish a well-founded fear of country-wide persecution in that country.

Credibility and Corroboration

Matter of B-, 21 I&N Dec. 66 (BIA 1995)

Under the circumstances of this case, where an asylum applicant’s testimony was plausible, detailed, internally consistent, consistent with the asylum application, and unembellished during the applicant’s repeated relating of events in a probing cross-examination, the Board declines to adopt the Immigration Judge’s adverse credibility finding.

Matter of S-S-, 21 I&N Dec. 121 (BIA 1995)

(1) In order to fully and fairly review a decision of an Asylum Office Director in asylum proceedings, the Board of Immigration Appeals must have before it the primary evidentiary matters relied upon by the initial adjudicator.

(2) When the credibility of an applicant for asylum and withholding of deportation is placed in issue because of alleged statements made at the asylum interview, at a minimum, the record of the interview must contain a meaningful, clear, and reliable summary of the statements made by the applicant. In the alternative, a record of the interview might be preserved in a handwritten account of the specific questions asked of the applicant and his specific responses or through transcription of an electronic recording.

Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997)

(1) General background information about a country, where available, must be included in the record as a foundation for an applicant's claim of asylum and withholding of deportation.

(2) Where the record contains general country condition information and an applicant's claim relies primarily on personal experiences not reasonably subject to verification, corroborating documentary evidence of the asylum applicant's particular experience is not required; but where it is reasonable to expect such corroborating evidence for certain alleged facts pertaining to the specifics of an applicant's claim, such evidence should be provided or an explanation should be given as to why such information was not presented. Matter of Dass, 20 I&N Dec. 120 (BIA 1989); Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987), clarified.

(3) The Immigration and Naturalization Service should play an active role in introducing evidence regarding current country conditions.

(4) Although the burden of proof is not on the Immigration Judge, if background evidence is central to an alien's claim and the Immigration Judge relies on the country conditions in adjudicating the alien's case, the source of the Immigration Judge's knowledge of the particular country must be made part of the record.

Matter of E-P-, 21 I&N Dec. 860 (BIA 1997)

(1) A finding of credible testimony by an asylum applicant is not dispositive as to whether asylum should be granted; rather, the specific content of the testimony, and any other relevant evidence in the record, is also considered.

(2) When evaluating an asylum claim, the changed conditions of the country at issue, as properly established in the record of proceedings, may be a significant factor in concluding that an applicant has not established a well-founded fear of persecution.

Matter of S-S-, 21 I&N Dec. 900 (BIA 1997) (Asylum Interview Statement)

(1) In order to fully and fairly review a decision of an Asylum Office Director in asylum proceedings, the Board of Immigration Appeals must have before it the primary evidentiary matters relied upon by the initial adjudicator.

(2) When the credibility of an applicant for asylum and withholding of deportation is placed in issue because of alleged statements made at the asylum interview, at a minimum, the record of the interview must contain a meaningful, clear, and reliable summary of the statements made by the applicant. In the alternative, a record of the interview might be preserved in a handwritten account of the specific questions asked of the applicant and his specific responses or through transcription of an electronic recording.

Matter of O-D-, 21 I&N Dec. 1079 (BIA 1998) (Counterfeit Document)

Presentation by an asylum applicant of an identification document that is found to be counterfeit by forensic experts not only discredits the applicant’s claim as to the critical elements of identity and nationality, but, in the absence of an explanation or rebuttal, also indicates an overall lack of credibility regarding the entire claim.

Matter of A-S-, 21 I&N Dec. 1106 (BIA 1998)

(1) Although the Board of Immigration Appeals has de novo review authority, the Board accords deference to an Immigration Judge’s findings concerning credibility and credibility-related issues.

(2) The Board of Immigration Appeals defers to an adverse credibility finding based upon inconsistencies and omissions regarding events central to an alien’s asylum claim where a review of the record reveals that (1) the discrepancies and omissions described by the Immigration Judge are actually present; (2) these discrepancies and omissions provide specific and cogent reasons to conclude that the alien provided incredible testimony; and (3) a convincing explanation for the discrepancies and omissions has not been supplied by the alien.

(3) Since an Immigration Judge is in the unique position to observe the testimony of an alien, a credibility finding which is supported by a reasonable adverse inference drawn from an alien’s demeanor generally should be accorded a high degree of deference, especially where such inference is supported by specific and cogent reasons for doubting the veracity of the substance of the alien’s testimony.

Matter of Y-B-, 21 I&N Dec. 1136 (BIA 1998)

(1) An asylum applicant does not meet his or her burden of proof by general and meager testimony.

(2) Specific, detailed, and credible testimony or a combination of detailed testimony and corroborative background evidence is necessary to prove a case for asylum.

(3) The weaker an applicant’s testimony, the greater the need for corrobative evidence.

Matter of M-D-, 21 I&N Dec. 1180 (BIA 1998) (Identity)

An alien who did not provide any evidence to corroborate his purported identity, nationality, claim of persecution, or his former presence or his family’s current presence at a refugee camp, where it was reasonable to expect such evidence, failed to meet his burden of proof to establish his asylum claim.

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

(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.

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

(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.

              Criminal Activity 

Matter of L-S-J-, 21 I&N Dec. 973 (BIA 1997)

(1) An asylum applicant who has been convicted of robbery with a deadly weapon (handgun) and sentenced to 2 1/2 years in prison is not eligible for asylum because he has been convicted of an aggravated felony, that is, a crime of violence for which the sentence is at least 1 year.

(2) An applicant for withholding of deportation who has been convicted of robbery with a deadly weapon (handgun) has been convicted of a particularly serious crime and is not eligible for withholding of deportation regardless of the length of his sentence.

              Matter of Jean, 23 I&N Dec. 323 (A.G. 2002)

(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 certify cases 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 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.

(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.

Exclusion Proceedings

Matter of G-A-C-, 22 I&N Dec. 83 (BIA 1998)

An applicant for asylum who departed the United States after having been granted an advance authorization for parole, and who, on his return, was paroled into this country under the provisions of section 212(d)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1182(d)(5) (Supp. V 1993), was properly placed in exclusion proceedings following the Immigration and Naturalization Service’s denial of his application for asylum and revocation of his parole. Navarro-Aispura v. INS, 53 F.3d 233 (9th Cir. 1995); and Barney v. Rogers, 83 F.3d 318 (9th Cir. 1996), distinguished.

Matter of A-N- & R-M-N-, 22 I&N Dec. 953 (BIA 1999)

Aliens seeking to reopen exclusion proceedings to apply for asylum and withholding of deportation who have presented evidence establishing materially changed circumstances in their homeland or place of last habitual residence, such that they meet the general requirements for motions to reopen, need not demonstrate Areasonable cause@ for their failure to appear at the prior exclusion hearing.

Firm Resettlement

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

(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.

              Frivolous Applications

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

(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.

              Jurisdiction of Immigration Judges

Matter of P-L-P-, 21 I&N Dec. 887 (BIA 1997)

(1) Under 8 C.F.R. § 208.2(a) (1996), the Office of Refugees, Asylum, and Parole has initial jurisdiction over an alien’s asylum application when the alien has not been served an Order to Show Cause and Notice of Hearing (Form I-221).

(2) Under 8 C.F.R. § 208.2(b) (1996), an Immigration Judge has exclusive jurisdiction over an asylum application filed by an alien once an Order to Show Cause has been served upon the alien and filed with the Immigration Court.

              North Korean Human Rights Act

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

(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.

              One-Year Application Deadline 

              Matter of Y-C-, 23 I&N Dec. 286 (BIA 2002)

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.

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

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(a)(2)(ii) (2008) refers to the alien’s most recent arrival in the United States from a trip abroad.

Particular Social Group

Matter of H-, 21 I&N Dec. 337 (BIA 1996)

(1) Membership in a clan can constitute membership in a "particular social group" within the meaning of section 208(a) of the Immigration & Nationality Act, 8 U.S.C. § 1158(a)(1994); the Marehan subclan of Somalia, the members of which share ties of kinship and linguistic commonalities, is such a "particular social group."

(2) While interclan violence may arise during the course of civil strife, such circumstances do not preclude the possibility that harm inflicted during the course of such strife may constitute persecution within the meaning of section 208(a) of the Act; and, persecution may occur irrespective of whether or not a national government exists.

(3) An alien who has demonstrated past persecution is presumed to have a well-founded fear of future persecution unless it is demonstrated by a preponderance of the evidence that, since the time the persecution occurred, conditions in the applicant's country have changed to such an extent that the applicant no longer has a well-founded fear of persecution in that country.

(4) In the consideration of whether a favorable exercise of discretion should be afforded an applicant who has established eligibility for asylum on the basis of past persecution, careful attention should be given to compelling, humanitarian considerations that would be involved if the refugee were to be forced to return to a country where he or she was persecuted in the past.

Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996)

(1) The practice of female genital mutilation, which results in permanent disfiguration and poses a risk of serious, potentially life-threatening complications, can be the basis for a claim of persecution.

(2) Young women who are members of the Tchamba-Kunsuntu Tribe of northern Togo who have not been subjected to female genital mutilation, as practiced by that tribe, and who oppose the practice, are recognized as members of a "particular social group" within the definition of the term "refugee" under section 101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42)(A) (1994).

(3) The applicant has met her burden of proving through credible testimony and supporting documentary evidence (1) that a reasonable person in her circumstances would fear country-wide persecution in Togo on account of her membership in a recognized social group and (2) that a favorable exercise of discretion required for a grant of asylum is warranted.

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

(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.”

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

(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.

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

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.”

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

(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.

Past Persecution

Matter of N-M-A-, 22 I&N Dec. 312 (BIA 1998)

(1) Under 8 C.F.R. § 208.13(b)(1)(i) (1998), where an asylum applicant has shown that he has been persecuted in the past on account of a statutorily-protected ground, and the record reflects that country conditions have changed to such an extent that the asylum applicant no longer has a well-founded fear of persecution from his original persecutors, the applicant bears the burden of demonstrating that he has a well-founded fear of persecution from any new source.

(2) An asylum applicant who no longer has a well-founded fear of persecution due to changed country conditions may still be eligible for a discretionary grant of asylum under 8 C.F.R. § 208.13(b)(1)(ii) only if he establishes, as a threshold matter, compelling reasons for being unwilling to return to his country of nationality or last habitual residence arising out of the severity of the past persecution.

(3) The applicant failed to establish compelling reasons arising out of the severity of the past persecution for being unwilling to return to Afghanistan where he suffered beatings during a month-long detention and the disappearance and likely death of his father.

              Matter of Y-T-L-, 23 I&N Dec. 601 (BIA 2003)

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).

              Matter of A-T-, 24 I&N Dec. 296 (BIA 2007)

(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.

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

(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.

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

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.

Persecution - Antisemitism

Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998)

An alien who suffered repeated beatings and received multiple handwritten anti-Semitic threats, whose apartment was vandalized by anti-Semitic nationalists, and whose son was subjected to degradation and intimidation on account of his Jewish nationality established that he has suffered harm which, in the aggregate, rises to the level of persecution as contemplated by the Immigration and Nationality Act.

Persecution - Clan Membership

Matter of H-, 21 I&N Dec. 337 (BIA 1996)

(1) Membership in a clan can constitute membership in a "particular social group" within the meaning of section 208(a) of the Immigration & Nationality Act, 8 U.S.C. § 1158(a)(1994); the Marehan subclan of Somalia, the members of which share ties of kinship and linguistic commonalities, is such a "particular social group."

(2) While interclan violence may arise during the course of civil strife, such circumstances do not preclude the possibility that harm inflicted during the course of such strife may constitute persecution within the meaning of section 208(a) of the Act; and, persecution may occur irrespective of whether or not a national government exists.

(3) An alien who has demonstrated past persecution is presumed to have a well-founded fear of future persecution unless it is demonstrated by a preponderance of the evidence that, since the time the persecution occurred, conditions in the applicant's country have changed to such an extent that the applicant no longer has a well-founded fear of persecution in that country.

(4) In the consideration of whether a favorable exercise of discretion should be afforded an applicant who has established eligibility for asylum on the basis of past persecution, careful attention should be given to compelling, humanitarian considerations that would be involved if the refugee were to be forced to return to a country where he or she was persecuted in the past.

Persecution - Coercive Population Control

Matter of X-P-T-, 21 I&N Dec. 634 (BIA 1996)

(1) An alien who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for resistance to a coercive population control program, has suffered past persecution on account of political opinion and qualifies as a refugee within the amended definition of that term under section 101(a)(42) of the Immigration and Nationality Act (to be codified at 8 U.S.C. § 1101(a)(42)). Matter of Chang, 20 I&N Dec. 38 (BIA 1989), superseded.

(2) The language of section 101(a)(42) of the Act deeming persons who have been subject to population control measures or persecuted for resistance to such programs to have been persecuted on account of political opinion applies to determinations of eligibility for withholding of deportation, as well as asylum.

(3) Section 207(a)(5) of the Act (to be codified at 8 U.S.C. § 1157(a)(5)) limits the number of refugees that may be admitted to the United States or granted asylum pursuant to the provisions of section 101(a)(42) of the Act relating to persecution for resistance to coercive population control methods.

(4) The applicant, who was forcibly sterilized for violating the coercive population control policies of China, is granted asylum conditioned upon a determination by the Immigration and Naturalization Service that a number is available for such grant; withholding of exclusion and deportation is also granted without condition.

Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997), review denied, 23 I&N Dec. 693 (A.G. 2004) (overruled by Matter of J-S-, 24 I&N Dec. 520 (A.G. 2008))

(1) An alien whose spouse was forced to undergo an abortion or sterilization procedure can establish past persecution on account of political opinion and qualifies as a refugee within the definition of section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (1994), as amended by section 601(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, enacted as Division C of the Departments of Commerce, Justice, and State, and the Judiciary Appropriations Act for 1997, Pub. L. No. 104-208, 110 Stat. 3009, ____.

(2) The regulatory presumption of a well-founded fear of future persecution may not be rebutted in the absence of changed country conditions, regardless of the fact that the sterilization of the alien’s spouse negates the likelihood of future sterilization to the alien.

Matter of X-G-W-, 22 I&N Dec. 71 (BIA 1998) (superseded by Matter of G-C-L-, 23 I&N Dec. 359 (BIA 2002))

Due to a fundamental change in the definition of a “refugee” brought about by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, the Board of Immigration Appeals will allow reopening of proceedings to pursue asylum claims based on coerced population control policies, notwithstanding the time and number limitations on motions specified in 8 C.F.R. § 3.2 (1997).

              Matter of G-C-L-, 23 I&N Dec. 359 (BIA 2002)

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-, 22 I&N Dec. 71 (BIA 1998), superseded.

              Matter of Y-T-L-, 23 I&N Dec. 601 (BIA 2003)

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).

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

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.

Matter of S-L-L-, 24 I&N Dec. 1 (BIA 2006) (overruled by Matter of J-S-, 24 I&N Dec. 520 (A.G. 2008))

(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.

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

(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.

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

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.

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

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.

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

(1) The spouse of a person who has been physically subjected to a forced abortion or sterilization procedure is not per se entitled to refugee status under section 601(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-689, codified at section 101(a)(42) of the 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 procedure may still qualify as a refugee on account of a well-founded fear of persecution of being forced to undergo such a procedure, or on account of persecution or a well-founded fear of persecution for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, or on other grounds enumerated in the Immigration and Nationality Act.

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

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.

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

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.

            Persecution - Cumulative Discrimination

            Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998)

An alien who suffered repeated beatings and received multiple handwritten anti-Semitic threats, whose apartment was vandalized by anti-Semitic nationalists, and whose son was subjected to degradation and intimidation on account of his Jewish nationality established that he has suffered harm which, in the aggregate, rises to the level of persecution as contemplated by the Immigration and Nationality Act.

Persecution - Domestic Violence

Matter of R-A-, 22 I&N Dec. 906 (BIA 1999, A.G. 2001) (vacated and remanded by the Attorney General for reconsideration), remanded by the Attorney General to the Board, 23 I&N Dec. 694 (A.G. 2005).

(1) Where a victim of domestic violence fails to introduce meaningful evidence that her husband’s behavior was influenced by his perception of her opinion, she has not demonstrated harm on account of political opinion or imputed political opinion.

(2) The existence of shared descriptive characteristics is not necessarily sufficient to qualify those possessing the common characteristics as members of a particular social group for the purposes of the refugee definition at section 101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42)(A) (1994); rather, in construing the term in keeping with the other four statutory grounds, a number of factors are considered in deciding whether a grouping should be recognized as a basis for asylum, including how members of the grouping are perceived by the potential persecutor, by the asylum applicant, and by other members of the society.

(3) An applicant making a particular social group claim must make a showing from which it is reasonable to conclude that the persecutor was motivated to harm the applicant, at least in part, by the asserted group membership.

(4) An asylum applicant who claims persecution on the basis of a group defined as Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination@ must demonstrate, inter alia, that her persecutor husband targeted and harmed her because he perceived her to be a member of this particular social group.

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

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.

            Persecution - Drug Informants

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

(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.”

Persecution - Extortion

Matter of T-M-B-, 21 I&N Dec. 775 (BIA 1997)

(1) An applicant for asylum need not show conclusively why persecution occurred in the past or is likely to occur in the future. However, the applicant must produce evidence from which it is reasonable to believe that the harm was motivated, at least in part, by an actual or imputed protected ground.

(2) Criminal extortion efforts do not constitute persecution “on account of” political opinion where it is reasonable to conclude that those who threatened or harmed the respondent were not motivated by her political opinion.

(3) Country profiles submitted by the Department of State’s Bureau of Democracy, Human Rights and Labor are entitled to considerable deference.

Persecution - Female Genital Mutilation

Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996)

(1) The practice of female genital mutilation, which results in permanent disfiguration and poses a risk of serious, potentially life-threatening complications, can be the basis for a claim of persecution.

(2) Young women who are members of the Tchamba-Kunsuntu Tribe of northern Togo who have not been subjected to female genital mutilation, as practiced by that tribe, and who oppose the practice, are recognized as members of a "particular social group" within the definition of the term "refugee" under section 101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42)(A) (1994).

(3) The applicant has met her burden of proving through credible testimony and supporting documentary evidence (1) that a reasonable person in her circumstances would fear country-wide persecution in Togo on account of her membership in a recognized social group and (2) that a favorable exercise of discretion required for a grant of asylum is warranted.

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

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.

            Matter of A-T-, 24 I&N Dec. 296 (BIA 2007)

(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.

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

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.

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

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.

 

Matter of A-T-, 25 I&N Dec. 4 (B.I.A. 2009)

(1) Requests for asylum or withholding of removal premised on past persecution related to female genital mutilation must be adjudicated within the framework set out by the Attorney General in Matter of A-T-, 24 I&N Dec. 617 (A.G. 2008).

 

(2) Once past persecution on account of an enumerated ground is shown, a presumption is triggered that there would be future harm on the basis of the original claim or, in other words, on account of the same statutory ground.

 

(3) An applicant for asylum or withholding should clearly indicate what enumerated ground(s) he or she is relying upon in making a claim, including the exact delineation of any particular social group to which the applicant claims to belong.

            

Matter of C-A-L-, 21 I&N Dec. 754 (BIA 1997)

(1) An alien, who served as a soldier in the Guatemalan Army, has not established a well-founded fear of persecution by the guerrillas on account of one of the five grounds enumerated in section 101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42)(A) (1994), where he claims that his personal file from the army fell into the hands of the guerrillas, who sought to recruit him for his artillery expertise.

(2) An alien has failed to establish that he has a well-founded fear of country-wide persecution from the guerrillas in Guatemala where he was able to live for more than 1 year in different areas within the country, including an area well known for its guerrilla operations, without experiencing any problems from the guerrillas.

Persecution - Kidnapping

Matter of V-T-S-, 21 I&N Dec. 792 (BIA 1997)

(1) Although kidnapping is a very serious offense, the seriousness of conduct is not dispositive in determining persecution, which does not encompass all treatment that society regards as unfair, unjust, or even unlawful or unconstitutional.

(2) While there may be a number of reasons for a kidnapping, an asylum applicant bears the burden of establishing that one motivation was to persecute him on account of an enumerated ground, and evidence that indicates that the perpetrators were motivated by the victim's wealth, in the absence of evidence to suggest other motivations, will not support a finding of persecution within the meaning of the Immigration and Nationality Act.

Persecution - Mixed Motives

Matter of S-P-, 21 I&N Dec. 486 (BIA 1996)

(1) Although an applicant for asylum must demonstrate that harm has been or would be inflicted on account of one of the protected grounds specified in the "refugee" definition, persecution for "imputed" reasons can satisfy that definition.

(2) In mixed motive cases, an asylum applicant is not obliged to show conclusively why persecution has occurred or may occur; however, in proving past persecution, the applicant must produce evidence, either direct or circumstantial, from which it is reasonable to believe that the harm was motivated in part by an actual or imputed protected ground.

(3) In situations involving general civil unrest, the motive for harm should be determined by considering the statements or actions of the perpetrators; abuse or punishment out of proportion to nonpolitical ends; treatment of others similarly situated; conformity to procedures for criminal prosecution or military law; the application of antiterrorism laws to suppress political opinion; and the subjection of political opponents to arbitrary arrest, detention, and abuse.

(4) Asylum was granted where the applicant was detained and abused by the Sri Lankan Government, not only to obtain information about the identity of guerrilla members and the location of their camps, but also because of an assumption that his political views were antithetical to those of the Government.

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

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.

            Persecution - Nonphysical Harm

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

(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.

Persecution - Rape

Matter of D-V-, 21 I&N Dec. 77 (BIA 1993)

Well-founded fear of persecution in Haiti was established by a 27-year-old married female activist member of a pro-Aristide church group who was gang-raped and beaten in her home by soldiers and who was targeted by her attackers because of her political opinion and religion.

Persecution - Reasons for Persecution

Matter of T-M-B-, 21 I&N Dec. 775 (BIA 1997)

(1) An applicant for asylum need not show conclusively why persecution occurred in the past or is likely to occur in the future. However, the applicant must produce evidence from which it is reasonable to believe that the harm was motivated, at least in part, by an actual or imputed protected ground.

(2) Criminal extortion efforts do not constitute persecution “on account of” political opinion where it is reasonable to conclude that those who threatened or harmed the respondent were not motivated by her political opinion.

(3) Country profiles submitted by the Department of State’s Bureau of Democracy, Human Rights and Labor are entitled to considerable deference.

Persecution - Religion

Matter of S-A-, 22 I&N Dec. 1328 (BIA 2000)

A woman with liberal Muslim beliefs established by credible evidence that she suffered past persecution and has a well-founded fear of future persecution at the hands of her father on account of her religious beliefs, which differ from her father’s orthodox Muslim views concerning the proper role of women in Moroccan society.

            Persecution - Wealth

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

(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.

Stowaways

Matter of M-S-, 21 I&N Dec. 125 (BIA 1995)

(1) In asylum proceedings involving a stowaway applicant, where an adverse credibility finding is adequately supported by information provided in documents executed by the applicant, without reliance upon statements allegedly made by the applicant in his interview with an asylum officer, it is not necessary to remand the case for a record of the interview which satisfies the requirements of Matter of S-S-, 21 I&N Dec. 121 (BIA 1995). Matter of S-S-, supra, distinguished.

(2) Where new asylum proceedings are conducted as a result of some defect in the original proceedings, statements made by the applicant in the original proceedings which are relevant to his persecution claim may be considered in the new proceedings.

(3) In asylum proceedings within the jurisdiction of the Immigration and Naturalization Service’s Office of Refugees, Asylum, and Parole, which include proceedings involving stowaway applicants, new regulations at 8 C.F.R. § 208.9(g) (1995) require an applicant who is unable to proceed with his asylum interview in English to provide, at no expense to the government, a competent interpreter who is fluent in both English and the applicant’s native language.

(4) In the interest of developing a full and complete record for review by the Board of Immigration Appeals, an asylum officer should draw a stowaway applicant’s attention to any inconsistencies in his account which may be apparent at the time of his asylum interview and accord the applicant an opportunity to address those inconsistencies at the interview.

            Terrorists

            Matter of U-H-, 23 I&N Dec. 355 (BIA 2002)

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).

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

(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.

Matter of S-K-, 23 I&N Dec. 936 (BIA 2006) (decided by Attorney General September 14, 2007)

(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.

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.

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

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.

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

(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.

Visa Waiver Program

Matter of Gallardo, 21 I&N Dec. 210 (BIA 1996)

An alien's admission pursuant to the Visa Waiver Pilot Program does not curtail his ability to obtain a bond redetermination hearing when the Immigration and Naturalization Service has issued an Order to Show Cause and Notice of Hearing (Form I-221) and the alien has applied for asylum and withholding of deportation.

Matter of Kanagasundram, 22 I&N Dec. 963 (BIA 1999)

Under the provisions of 8 C.F.R. § 217.4(a)(1) (1999), proceedings against an alien who has been refused admission under the Visa Waiver Pilot Program and who has applied for asylum must be commenced with a Notice of Referral to Immigration Judge (Form I-863).

Matter of Werner, 25 I&N Dec. 45 (BIA 2009)

(1) The Attorney General has not delegated authority to Immigration Judges, under 8 C.F.R. § 1236.1(d) (2009), to redetermine the conditions of custody imposed by the Department of Homeland Security with respect to aliens who have not been issued and served with a Notice to Appear (Form I-862) in relation to removal proceedings pursuant to 8 C.F.R. Part 1240 (2009).
(2) An alien admitted to the United States pursuant to the Visa Waiver Program who has not been served with a Notice to Appear pursuant to 8 C.F.R. Part 1240 is not entitled to a custody hearing before an Immigration Judge under 8 C.F.R. § 1236.1(d). Matter of Gallardo, 21 I&N Dec. 210 (BIA 1996), superseded.

            Matter of Gadda, 23 I&N Dec. 645 (BIA 2003)

(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.

            Matter of Ramos, 23 I&N Dec. 843 (BIA 2005)

(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.

            Matter of Truong, 24 I&N Dec. 52 (BIA 2006)

(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.

            Matter of Shah, 24 I&N Dec. 282 (BIA 2007)

(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.

            Matter of Krivonos, 24 I&N Dec. 292 (BIA 2007)

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.

            Matter of Jean-Joseph, 24 I&N Dec. 292 (BIA 2007)

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.

            Matter of Rosenberg, 24 I&N Dec. 744 (BIA 2009)

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. (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).

ATTORNEY GENERAL CERTIFICATION

Matter of E-L-H-, 22 I&N Dec. 21 (BIA 1998), remanded by the Attorney General 23 I&N Dec. 700 (A.G. 2004), decided by the Board, 23 I&N Dec. 814 (BIA 2005).

Precedent decisions of the Board of Immigration Appeals which have been certified to the Attorney General for review are binding on the Immigration and Naturalization Service and the Immigration Judges and continue to serve as precedent in all proceedings involving the same issue or issues unless or until they are modified or overruled by the Board or the Attorney General.

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.

            Matter of Robles, 24 I&N Dec. 22 (BIA 2006)

(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.

BACKGROUND AND SECURITY CHECKS

            Matter of Alcantara-Perez, 23 I&N Dec. 882 (BIA 2006)

(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.

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

(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.

CANCELLATION OF REMOVAL (LAWFUL PERMANENT RESIDENTS)

Continuous Residence

Matter of Perez, 22 I&N Dec. 689 (BIA 1999)

(1) Pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1) (Supp. II 1996), continuous residence or physical presence for cancellation of removal purposes is deemed to end on the date that a qualifying offense has been committed.

(2) The period of continuous residence required for relief under section 240A(a) commences when the alien has been admitted in any status, which includes admission as a temporary resident.

(3) An offense described in section 240A(d)(1) is deemed to end continuous residence or physical presence for cancellation of removal purposes 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 Campos-Torres, 22 I&N Dec. 1289 (BIA 2000)

(1) Pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1) (Supp. II 1996), an offense must be one “referred to in section 212(a)(2)” of the Act, 8 U.S.C. § 1182(a)(2) (1994 & Supp. II 1996), to terminate the period of continuous residence or continuous physical presence required for cancellation of removal.

(2) A firearms offense that renders an alien removable under section 237(a)(2)(C) of the Act, 8 U.S.C. § 1227(a)(2)(C) (Supp. II 1996), is not one “referred to in section 212(a)(2)” and thus does not stop the further accrual of continuous residence or continuous physical presence for purposes of establishing eligibility for cancellation of removal.

            Matter of Blancas, 23 I&N Dec. 458 (BIA 2002)

The period of an alien’s residence in the United States after admission as a nonimmigrant may be considered in calculating the 7 years of continuous residence required to establish eligibility for cancellation of removal under section 240A(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a)(2) (Supp. V 1999).

            Matter of Jurado, 24 I&N Dec. 29 (BIA 2006)

(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 title 18, section 3929(a)(1) of the Pennsylvania Consolidated Statutes is a crime involving moral turpitude.

(3) Unsworn falsification to authorities in violation of title 18, section 4904(a) of the Pennsylvania Consolidated Statutes is a crime involving moral turpitude.

            Matter of Escobar, 24 I&N Dec. 231 (BIA 2007)

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).

            Criminal Convictions

            Matter of Deanda-Romo, 23 I&N Dec. 597 (BIA 2003)

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, which

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.

Standards

Matter of C-V-T-, 22 I&N Dec. 7 (BIA 1998)

(1) To be statutorily eligible for cancellation of removal under section 240A(a) of the Immigration and Nationality Act (to be codified at 8 U.S.C. § 1229b(a)), an alien must demonstrate that he or she has been lawfully admitted for permanent residence for not less than 5 years, has resided in the United States continuously for 7 years after having been admitted in any status, and has not been convicted of an aggravated felony.

(2) In addition to satisfying the three statutory eligibility requirements, an applicant for relief under section 240A(a) of the Act must establish that he or she warrants such relief as a matter of discretion.

(3) The general standards developed in Matter of Marin, 16 I&N Dec. 581, 584-85 (BIA 1978), for the exercise of discretion under section 212(c) of the Act, 8 U.S.C. § 1182(c)(1994), which was the predecessor provision to section 240A(a), are applicable to the exercise of discretion under section 240A(a).

            Matter of Sotelo, 23 I&N Dec. 201 (BIA 2001)

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-, 22 I&N Dec. 7 (BIA 1998), clarified.

            Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003)

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).

CANCELLATION OF REMOVAL (NON-LAWFUL PERMANENT RESIDENTS)

Continuous Residence

            Matter of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000)

Pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1) (Supp. II 1996), an alien may not accrue the requisite 7 years of continuous physical presence for suspension of deportation after the service of the Order to Show Cause and Notice of Hearing (Form I-221), as service of the Order to Show Cause ends continuous physical presence.

Matter of Campos-Torres, 22 I&N Dec. 1289 (BIA 2000)

(1) Pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1) (Supp. II 1996), an offense must be one “referred to in section 212(a)(2)” of the Act, 8 U.S.C. § 1182(a)(2) (1994 & Supp. II 1996), to terminate the period of continuous residence or continuous physical presence required for cancellation of removal.

(2) A firearms offense that renders an alien removable under section 237(a)(2)(C) of the Act, 8 U.S.C. § 1227(a)(2)(C) (Supp. II 1996), is not one “referred to in section 212(a)(2)” and thus does not stop the further accrual of continuous residence or continuous physical presence for purposes of establishing eligibility for cancellation of removal.

            Matter of Romalez, 23 I&N Dec. 423 (BIA 2002)

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.

            Matter of Cisneros, 23 I&N Dec. 668 (BIA 2004)

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.

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 of removal filed in the current proceeding. Matter of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000), distinguished.

            Matter of Avilez, 23 I&N Dec. 799 (BIA 2005)

(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.

            Matter of Bautista-Gomez, 23 I&N Dec. 893 (BIA 2006)

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.

             Matter of Ramirez-Vargas, 24 I&N Dec. 599 (BIA 2008)

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).

            Criminal Convictions

            Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2002)

(1) An alien who has been convicted of a crime involving moral turpitude that falls withinthe “petty offense” exception in section 212(a)(2)(A)(ii)(II) of the Immigration andNationality Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (1994), is not ineligible for cancellation ofremoval under section 240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C) (Supp. IV1998), 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 section240A(b)(1)(B) of the Act, because commission of a petty offense does not bar the offenderfrom 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.

            Matter of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007)

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).

            Matter of Almanza-Arenas, 24 I&N Dec. 771 (BIA 2009)

(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).

Exceptional and Extremely Unusual Hardship

Matter of Monreal, 23 I&N Dec. 56 (BIA 2001)

(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.

            Matter of Andazola, 23 I&N Dec. 319 (BIA 2002)

(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.

            Matter of Recinas, 23 I&N Dec. 467 (BIA 2002)

(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.

            Good Moral Character

            Matter of Ortega-Cabrera, 23 I&N Dec. 793 (BIA 2005)

(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.

Ineligible Aliens 

Matter of G-D-M-, 25 I&N Dec. 82 (BIA 2009)

An alien who entered the United States pursuant to a crewman’s visa for the purpose of obtaining employment as a crewman is statutorily ineligible for cancellation of removal under section 240A(c)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(c)(1) (2006). Matter of Goncalves, 10 I&N Dec. 277 (BIA 1963), followed.

CANCELLATION OF REMOVAL (SPECIAL RULE)

            Continuous Physical Presence

            Matter of Garcia, 24 I&N Dec. 179 (BIA 2007)

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.

            Battered Spouse

Matter of A-M-, 25 I&N Dec. 66 (BIA 2009)

(1) Notwithstanding the heading of section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (2006), which only refers to nonpermanent residents, a lawful permanent resident who qualifies as a battered spouse may be eligible to apply for cancellation of removal under section 240A(b)(2) of the Act.

(2) Given the nature and purpose of the relief of cancellation of removal for battered spouses under section 240A(b)(2) of the Act, such factors as an alien’s divorce from an abusive spouse, remarriage, and previous self-petition for relief based on the abusive marriage are relevant in determining whether an application for that relief should be granted in the exercise of discretion.

CHILD STATUS PROTECTION ACT

            Matter of Avila-Perez, 24 I&N Dec. 78 (BIA 2007)

(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.

CITIZENSHIP

Acquisition of Citizenship by a Child

Matter of Fuentes-Martinez, 21 I&N Dec. 893 (BIA 1997)

(1) A child who has satisfied the statutory conditions of section 321(a) of the Immigration and Nationality Act, 8 U.S.C. § 1432(a) (1994), before the age of 18 years has acquired derivative United States citizenship regardless of the child’s age at the time the amendments to that section by the Act of October 5, 1978, Pub. L. No. 95-417, 92 Stat. 917 (“1978 Amendments”), took effect.

(2) The respondent, who was 16 years and 4 months of age when his mother was naturalized, and who resided in the United States at that time as a lawful permanent resident while under the age of 18 years, became a derivative United States citizen, even though he was already 18 years old when the 1978 Amendments took effect.

Matter of Rodriguez-Tejedor, 23 I&N Dec. 153 (BIA 2001)

(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.

            Matter of Navas-Acosta, 23 I&N Dec. 586 (BIA 2003)

(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.

            Matter of Rowe, 23 I&N Dec. 962 (BIA 2006)

(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).

             Matter of Hines, 24 I&N Dec. 544 (BIA 2008)

(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.

            Matter of Nwozuzu, 24 I&N Dec. 609 (BIA 2008)

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.

            Matter of Guzman-Gomez, 24 I&N Dec. 824 (BIA 2009)

(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.

Ineligible to Citizenship

Matter of Kanga, 22 I&N Dec. 1206 (BIA 2000)

(1) The phrase “ineligible to citizenship” in section 212(a)(8)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(8)(A) (Supp. II 1996), refers only to those aliens who are barred from naturalization by virtue of their evasion of military service.

(2) An alien convicted of an aggravated felony is not thereby rendered inadmissible under section 212(a)(8)(A) of the Act as an alien who is permanently “ineligible to citizenship.”

CONTINUANCES

            Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009)

(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.

CONTROLLED SUBSTANCE DEPORTABILITY

          Matter of Moncada, 24 I&N Dec. 62 (BIA 2007)

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.

          Matter of Martinez-Zapata, 24 I&N Dec. 424 (BIA 2007)

(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.

CONVENTION AGAINST TORTURE

Acquiesence of Public Official

Matter of S-V-, 22 I&N Dec. 1306 (BIA 2000)

An applicant for protection under Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment must establish that the torture feared would be inflicted by or with the acquiescence of a public official or other person acting in an official capacity; therefore, protection does not extend to persons who fear entities that a government is unable to control.

         Matter of Y-L-, A-G- and R-S-R-, 23 I&N Dec. 270 (A.G. 2002)

(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-, 22 I&N Dec. 458 (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-, 22 I&N Dec. 1306 (BIA 2000), followed.

          Burden of Proof

          Matter of M-B-A-, 23 I&N Dec. 474 (BIA 2002)

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.

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

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.

          Definition of Torture

              Matter of J-E-, 23 I&N Dec. 291 (BIA 2002)

(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 possibilityof 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.

              Matter of G-A-, 23 I&N Dec. 366 (BIA 2002)

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.

Jurisdiction

Matter of H-M-V-, 22 I&N Dec. 256 (BIA 1998)

The Board of Immigration Appeals lacks jurisdiction to adjudicate a claim for relief from deportation pursuant to Article 3 of the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, as there has been no specific legislation to implement the provisions of Article 3, no regulations have been promulgated with respect to Article 3, and the United States Senate has declared that Article 3 is a non-self-executing treaty provision.

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

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.

CRIMES INVOLVING MORAL TURPITUDE

Assault

Matter of Fualaau, 21 I&N Dec. 475 (BIA 1996)

(1) Assault in the third degree under section 707-712 of the Hawaii Revised Statute is not a crime involving moral turpitude within the meaning of section 241(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 241(a)(2)(A)(ii) (1994), where the offense is similar to a simple assault.

(2) Where reckless conduct is an element of the statute, a crime of assault can be, but is not per se, a crime involving moral turpitude.

              Matter of Sejas, 24 I&N Dec. 236 (BIA 2007)

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.

            Matter of Solon, 24 I&N Dec. 239 (BIA 2007)

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.

Burglary

Matter of Louissaint, 24 I&N Dec. 754 (BIA 2009)

(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.

    Cancellation of Removal Eligibility

    Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2002)

(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.

            Matter of Robles, 24 I&N Dec. 22 (BIA 2006)

(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.

            Matter of Deanda-Romo, 23 I&N Dec. 597 (BIA 2003)

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, which

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.

            Child Pornography

            Matter of Olquin, 23 I&N Dec. 896 (BIA 2006)

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

Controlled Substances

Matter of Khourn, 21 I&N Dec. 1041 (BIA 1997)

A conviction for distribution of cocaine under 21 U.S.C.§ 841(a)(1) (1988), is a conviction for a crime involving moral turpitude within the meaning of section 241(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(A)(ii) (1994), where knowledge or intent is an element of the offense. Matter of Serna, 20 I&N Dec. 579 (BIA 1992), modified.

            Matter of Zorilla-Vidal, 24 I&N Dec. 768 (BIA 2009)

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.

2.  

Corporal Injury on a Spouse

Matter of Tran, 21 I&N Dec. 291 (BIA 1996)

Willful infliction of corporal injury on a spouse, cohabitant, or parent of the perpetrator's child, in violation of section 273.5(a) of the California Penal Code, constitutes a crime involving moral turpitude.

            Date of Admission

            Matter of Shanu, 23 I&N Dec. 754 (BIA 2005).

(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.

Matter of Carrillo, 25 I&N Dec. 99 (BIA 2009)

In determining whether an alien whose status was adjusted pursuant to section 1 of the Cuban Refugee Adjustment Act of November 1, 1966, Pub. L. No. 89-732, 80 Stat. 1161, is removable as an alien who has been convicted of a crime involving moral turpitude committed within 5 years after the alien’s “date of admission,” the admission date is calculated according to the rollback provision of section 1, rather than the date adjustment of status was granted.

 Defined

Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008)

(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.

              Matter of Louissaint, 24 I&N Dec. 754 (BIA 2009)

(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.

              Domestic Battery

              Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006)

(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.

Driving Under the Influence

Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999)

Under Arizona law, the offense of aggravated driving under the influence, which requires the driver to know that he or she is prohibited from driving under any circumstances, is a crime involving moral turpitude.

Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001)

Under Arizona law, the offense of aggravated driving under the influence (“DUI”) with two or more prior DUI convictions is not a crime involving moral turpitude. Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999), distinguished.

              Failure to Register as Sex Offender

            Matter of Tobar-Lobo, 24 I&N Dec. 143 (BIA 2007)

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.

Financial Violations

Matter of L-V-C-, 22 I&N Dec. 594 (BIA 1999)

An alien convicted of causing a financial institution to fail to file currency transaction reports and of structuring currency transactions to evade reporting requirements, in violation of 31 U.S.C. §§ 5324(1) and (3) (1998), whose offense did not include any morally reprehensible conduct, is not convicted of a crime involving moral turpitude. Matter of Goldeshtein, 20 I&N Dec. 382 (BIA 1991), rev’d, 8 F.3d 645 (9th Cir. 1993), overruled.

              Misprision of a Felony

            Matter of Robles, 24 I&N Dec. 22 (BIA 2006)

(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.

            Matter of Tejwani, 24 I&N Dec. 97 (BIA 2007)

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

              Purely Political Offense

              Matter of O’Cealleagh, 23 I&N Dec. 976 (BIA 2006)

(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.

Section 212(c) Eligibility

Matter of Fortiz, 21 I&N Dec. 1199 (BIA 1998)

(1) An alien who is deportable under section 241(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(A)(ii) (1994), as an alien convicted of two or more crimes involving moral turpitude, and whose deportation proceedings were initiated prior to the April 24, 1996, enactment date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”), is not ineligible for a waiver under section 212(c) of the Act (to be codified at 8 U.S.C. § 1182(c)) unless more than one conviction resulted in a sentence or confinement of 1 year or longer pursuant to the former version of section 241(a)(2)(A)(i)(II), prior to its amendment by the AEDPA.

(2) For an alien to be barred from eligibility for a waiver under section 212(c) of the Act as one who “is deportable” by reason of having committed a criminal offense covered by one of the criminal deportation grounds enumerated in the statute, he or she must have been charged with, and found deportable on, such grounds.

Stalking

Matter of Ajami, 22 I&N Dec. 949 (BIA 1999)

The offense of aggravated stalking pursuant to section 750.411i of the Michigan Compiled Laws Annotated is a crime involving moral turpitude.

              Theft

              Matter of Jurado, 24 I&N Dec. 29 (BIA 2006)

(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.