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Headnotes
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(1) A marriage entered into for the primary purpose of circumventing the immigration laws, commonly referred to as a fraudulent or sham marriage, is not recognized for the purpose of obtaining immigration benefits. (2) In determining whether a marriage is fraudulent for immigration purposes, the conduct of the parties after the marriage is relevant as to their intent at the time of marriage; evidence to establish intent may take many forms, including, but not limited to, proof that the beneficiary has been listed as the petitioner's spouse on insurance policies, property leases, income tax forms, or bank accounts, and testimony or other evidence regarding courtship, wedding ceremony, shared residence, and experiences. (3) Where a visa petition has once been withdrawn based on an admission by a party that the marriage was solely entered into to bestow an immigration benefit, any subsequently filed visa petition involving the same petitioner and beneficiary must include at the time of filing: (1) an explanation of the prior withdrawal and (2) evidence supporting the bona fides of the parties' relationship. (4) The petitioner bears a heavy burden to establish the bona fides of the marital relationship in the case of a prior visa petition withdrawal and an admission of a fraudulent marriage, and, absent the submission of the previously related materials at the time of filing, a district director can reasonably deny the petitioner based on the admission made in conjunction with the prior withdrawal. |
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(1) To obtain a preference
status for the beneficiary as his unmarried son under section (2) Under the Republic of Cape Verde, Decree-Law No. 84/76 of September 25, 1976, "Laws on Marriage, Divorce and Filiation," effective October 1, 1976, and Judgment No. 16-80, Department of Studies, Legislation and Documentation of the Ministry of Justice of the Republic of Cape Verde, dated May 21, 1980, there is no distinction between legitimate and illegitimate children, and all children have equal rights under the law. (3) A beneficiary who
was born in Cape Verde on or after October 1, 1976, is deemed the |
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(1) Under Colombian Law No. 29 of February 24, 1982, all children born in Colombia have equal rights and obligations. (2) When the country
where the beneficiary was born and resides eliminates all legal (3) If the status of
a legitimate child arises after the child is born, the requirements of |
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(1) In an appeal from
an immigration judge's decision in a deportation case, the record of (2) Where it appears that an appeal may be appropriate for summary dismissal under 8 C.F.R. Sec. 3.1(d)(1-a)(1984), either party may request that the immigration judge forward the case to the Board without a transcript of the hearing. (3) If the immigration judge determines that a transcript is necessary for proper adjudication of the appeal, he may direct that a transcript be included, and there shall be no appeal from this determination; otherwise, the immigration judge shall forward the request for review without a transcript to the Board for resolution, together with the other documents required to be included in the record. Matter of Gamboa, 14 I&N Dec. 244 (BIA 1972), modified in part. |
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(1) An alien who is admitted
to the United States as a nonimmigrant visitor, who without (2) Such employment also bars the alien from adjusting his status pursuant to section 245(c)(2) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1255(c)(2)(1982). |
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(1) Under the Civil Code of Haiti, as amended by the Presidential Decree of January 27, l959, children born out of wedlock and acknowledged by their natural father prior to January 27, l959, have the same rights and obligations as legitimate children. Matter of Mesias, 18 I&N Dec. 298 (BIA l982), clarified. (2) Where the beneficiaries, natives and citizens of Haiti, were born out of wedlock in l954 and l955, respectively, and acknowledged by their natural father in l955, they are deemed legitimated children for immigration purposes under section 101(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1101(b)(1)(C)(1982). |
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Under the Immigration
and Nationality Act Amendments of 1981, Pub. L. No. 97-116, 95 Stat. 1611,
a nonimmigrant exchange alien (as defined in section 101(a)(15)(J) of
the Act, 8 U.S.C. Sec. 1101(a)(15)(J)(1982)), is barred by section 244(f)(2)
of the Act, 8 U.S.C. Sec. |
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(1) Afghan nationals
who arrived in the United States with fraudulent Turkish passports as (2) The use of fraudulent Turkish passports by Afghan nationals in order to avail themselves of the TRWOV privilege was an integral part of their material misrepresentation in attempting to enter the United States. (3) Afghan nationals
who came here from a foreign port in order to submit applications for (4) An alien who circumvents the orderly procedures for obtaining refugee status abroad will be denied the discretionary relief of asylum in the absence of strong countervailing equities to overcome this serious adverse factor. (5) Whether or not an applicant in exclusion proceedings is excludable under section 212(a)(19) of the Act is not determinative as to the issue of the discretionary relief of asylum. Matter of Salim, 18 I&N Dec. 311 (BIA 1982), clarified. |
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(1) Article 6 of the 1979 Constitution of Peru does not eliminate all legal distinctions between legitimate and illegitimate children and, consequently, a child born out of wedlock in Peru may not be considered a legitimate or a legitimated child within the meaning of sections 101(b)(1)(A) or (C) of the Immigration and Nationality Act, 8 U.S.C. Sec.Sec. 1101(b)(1)(A) or (C)(1982), by virtue of its provisions. (2) The legitimation of a child born out of wedlock can only be accomplished under Peruvian law by the subsequent marriage of the child's parents or by a judicial declaration upon petition of the legitimating parent. Matter of Quispe, 16 I&N Dec. 174 (BIA 1977), reaffirmed. |
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(1) The Board of Immigration
Appeals denied an application for a waiver of deportation under (2) In its decision, the Board of Immigration Appeals relied, in part, upon the legislative history of section 241(f) of the Act which reflects that the congressional intent was a humanitarian desire to unite families and preserve family ties by forestalling deportation where it would break up families composed, in part, of United States citizens or lawful permanent residents, and thus concluded that a marriage entered into solely for the purpose of obtaining immigration benefits was not a family tie which Congress intended to preserve under the statute. |
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(1) An application for admission to the United States is a continuing application and an alien's admissibility is determined on the basis of the law and facts existing at the time the application is finally considered; therefore, the instant applicant is now inadmissible as a nonimmigrant student because he lacks a passport valid for at least the next 6 months, as required by 8 C.F.R. Sec. 214.2(f)(5)(i)(1984). (2) The Board and immigration judges have jurisdiction to entertain an application for waiver of inadmissibility under section 212(d)(4) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1182(d)(4)(1982), where an alien renews such application before an immigration judge in exclusion proceedings following its initial denial by the district director. Matter of Ketema, 18 I&N Dec. 266 (BIA 1982), overruled. Matter of Le Floch, 13 I&N Dec. 251 (BIA 1969), reaffirmed. |
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The Supreme Court of the United States has recently held that the 7 years' continuous physical presence requirement of section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1254(a)(1)(1982), was meant by Congress to be administered as written; accordingly, in an application for suspension of deportation, an alien must establish, inter alia, that he has been physically present in the United States without interruption for a period of 7 years before he is statutorily eligible for that relief. Matter of Herrera, 18 I&N Dec. 4 (BIA 1981); and Matter of Wong, 12 I&N Dec. 271 (BIA 1967), overruled. |
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(1) Under the judicially-developed
doctrine of collateral estoppel, a prior denaturalization (2) The doctrine of collateral estoppel applies in deportation proceedings when there has been a prior judgment between the parties that is sufficiently firm to be accorded conclusive effect, the parties had a full and fair opportunity to litigate the issues resolved by and necessary to the outcome of the prior judgment, and the use of collateral estoppel is not unfair. Title v. INS, 322 F.2d 21 (9th Cir. 1963), distinguished. (3) The language in section
242(b) of the Immigration and Nationality Act, 8 U.S.C. Sec. (4) A former prisoner
of war of the Nazis who was forced to serve, upon penalty of death, as
a (5) The 1981 amendment
to section 244(a) of the Act, 8 U.S.C. Sec. 1254(a)(1982), which |
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Where the Notice of Appeal (Form I-290A) is not accompanied by the required fee or a correctly executed affidavit requesting waiver of the fee, it is not properly submitted for filing and shall be rejected by the officer having administrative jurisdiction over the case. |
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Expunction of a marihuana conviction pursuant to Article 42.12, section 7, of the Texas Code of Criminal Procedure does not eliminate the conviction for purposes of deportation because that statute is not a state counterpart to the federal first offender statute, 21 U.S.C. Sec. 844(b)(1)(1982). Matter of Sirhan, 13 I&N Dec. 592 (BIA 1970); and Matter of O'Sullivan, 10 I&N Dec. 320 (BIA 1963), distinguished. |
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(1) Certificates issued by notarial offices in the People's Republic of China ("PRC") which are offered as proof of post-1950 adoptions in mainland China shall be accepted as evidence both that the adoptive relationship was created and that the adoption is regarded as valid by the PRC Government. Matter of May, 18 I&N Dec. 381 (BIA 1983), distinguished. Matter of Ho, 18 I&N Dec. 152 (BIA 1981), superseded. (2) A certificate issued by one of the PRC's notarial offices is an essential element of proof in establishing the existence of a valid post-1950 adoption in the PRC in that if an applicant for such certificate is unable to persuade notarial officials that the certificate should be issued, either because of questions relating to the establishment of the adoption or its conformance to PRC public policy, then he cannot satisfy his burden of proving that the claimed relationship exists for purposes of our immigration laws. (3) Certificates issued by notarial offices in the PRC shall not be regarded as conclusive proof of the facts certified because of the potential for fraud or error in their issuance: fraud or mistake may reasonably be suspected where the facts recited on the notarial certificate are contradicted by other evidence and the inconsistencies have not been satisfactorily explained by the petitioner or where there is an absence of sufficient corroborating evidence. |
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(1) An alien seeking
asylum or withholding of deportation under sections 208(a) and 243(h)
of the Immigration and Nationality Act, 8 U.S.C. Sec.Sec. 1158(a) and
1253(h)(1982), has the burden of showing that the persecution he fears
is based on his race, religion, nationality, (2) The respondent's
refusal, for reasons of personal safety, to carry out a kidnapping (3) Any person who ordered,
incited, assisted, or otherwise participated in the persecution of (4) The statutory exclusion
from the definition of "refugee" of those persons who have (5) The scope of the
statutory exclusion of those persons who have participated in the (6) The respondent, by
his active and effective membership in the PIRA, participated in the (7) The respondent's involvement in the terrorist use of explosives and his participation in the PIRA's campaign of violence randomly directed against civilians represent acts of an atrocious nature out of proportion to the political goal of achieving a unified Ireland and are not, therefore, within the political offense exception; accordingly, his conduct provides "serious reasons for considering" that he has "committed serious non-political crimes" prior to his arrival in this country, making him statutorily ineligible for relief under sections 208(a) and 243(h) of the Act. |
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Unless void on its face, a valid United States passport issued to an individual as a citizen of the United States is not subject to collateral attack in administrative immigration proceedings but constitutes conclusive proof of such person's United States citizenship. |
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(1) An alien must demonstrate that he has been prejudiced by a violation of a procedural rule or regulation before his deportation proceeding will be invalidated. (2) In cases arising outside of the United States Courts of Appeals for the Seventh Circuit and the District of Columbia Circuit, a violation of the right to counsel in a deportation proceeding may be disregarded as harmless error so long as the violation is not fundamentally unfair and does not demonstrably prejudice the alien. (3) The scheduling of a deportation hearing on less than 7 days' notice does not violate either the notice requirement of 8 C.F.R. Sec. 242.1(b)(1984) or the constitutional guarantee of due process when the district director finds the public interest requires shorter notice, the notice is reasonable under the circumstances of the case, and the alien is not prejudiced. |
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A Notice of Appeal (Form I-290A) and fee waiver request accompanied by an unsworn declaration made in accordance with 28 U.S.C. Sec. 1746 (1982) will be accepted as properly filed if it otherwise comports with the requirements of 8 C.F.R. Sec. 3.3 (1984). |
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A reading of the plain language and legislative history of section 101(b)(1)(E) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1101(b)(l)(E)(1982), establishes that Congress intended that the 2-year residence requirement vis-a-vis an adopted child connote a familial relationship not inherent in a mere visit; therefore, a petitioner fails to meet his burden of proof in visa petition proceedings by merely showing a succession of visits by the adopting parent in the home of the adopted child. |
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Allied Fidelity Insurance Company, ID#2972 (1) Petition by an alien for a writ of habeas corpus does not relieve an obligor of his responsibility to surrender the alien on demand pursuant to the terms of a delivery bond where the court has in no way relieved the obligor of this responsibility. (2) Failure of the obligor to surrender the alien as required is not a mere technical or unimportant occurrence because sometime during the day on which surrender was demanded the alien filed a petition for a writ of habeas corpus; the alien's petition for a writ of habeas corpus is not therefore properly advanced as probative of substantial compliance with the terms of the delivery bond. |
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(1) Although an immigration
judge's decision granting a motion to reopen deportation (2) Where a motion to
reopen deportation proceedings is opposed by either party, the (3) In determining whether extreme hardship has been established for suspension of deportation purposes, equities which are acquired after a final order of deportation has been issued against an alien are entitled to less weight than those acquired before an alien has been found deportable. |
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Leon-Orosco and Rodriguez-Colas ID#2974 (1) A motion to reopen
exclusion proceedings for the purpose of applying for asylum and (2) Notwithstanding a clear showing of prima facie eligibility for the underlying relief sought, a motion to reopen proceedings can be denied for discretionary reasons where, for example, the record reflects little likelihood of success on the merits if reopening is permitted. (3) Notwithstanding the
submission of extensive documentation in support of the motion to (4) The refusal of a country to accept the return of its nationals does not, by itself, provide the basis for an asylum claim. (5) Recognizing that a failure to address the effect of a stipulation between the parties is not a rejection of it, the Attorney General found nothing in the Board of Immigration Appeals' statement which precluded the parties from abiding by the stipulation and permitting it to govern their conduct; inasmuch as the stipulation dealt with the subsequent effect of test cases on other parties not presently before the Board, the Attorney General determined that it was not necessary for the Board to discuss the stipulation's effect and not inappropriate to defer doing so until it was faced with a case in which the terms of the stipulation were material to the resolution of a controversy. (6) The Attorney General found no error in the Board's refusal to provide an exegesis on the phrase "membership in a particular social group," where reaching that issue was not necessary in resolving the case and would have, under the circumstances, represented an advisory opinion on an issue that, while important, did not need to be resolved by the Board. |
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(1) In order for an adoption
to be valid for immigration purposes, it first must be shown that the
adoption conformed with and is recognized by the applicable law of the
jurisdiction (2) Under the Indian Muslim Personal Law Application Act, which applies to Moslems in India, adoption among Moslems is not legally recognized or valid; therefore, Moslem adoptions in India are invalid for purposes of the Immigration and Nationality Act. Matter of Irani, 15 I&N Dec. 569 (BIA 1976), distinguished. |
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(1) Section 241(f) of
the Immigration and Nationality Act, 8 U.S.C. Sec. 1251(f)(1982), only (2) An alien who becomes admissible to the United States for permanent residence by virtue of his adjustment of status under section 245 of the Act, 8 U.S.C. Sec. 1255 (1982), does not make an entry into the United States. (3) The respondent's fraudulent act took place after he had entered the United States when he sought adjustment of status under section 245 of the Act; therefore, he was not excludable on the basis of this fraud at the time of an entry. (4) The provisions of
Section 241(f) of the Act do not apply to frauds committed by the |
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(1) A preliminary injunction
against enforcement of the amended regulation that revises the (2) The Immigration and Naturalization Service may not rely upon a regulation that is no longer in effect to impose a condition in an alien's bond prohibiting unauthorized employment. |
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(1) Under current rescission regulations, the statute of limitations prescribed in section 246(a) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1256(a)(1982), is tolled by the issuance of a Notice of Intent to Rescind within 5 years of the respondent's adjustment of status. Quintana v. Holland, 255 F.2d 161 (3d Cir. 1958), distinguished. (2) Section 241(f) of the Act, 8 U.S.C. Sec. 1251(f)(1982), by its very terms, refers only to a deportation proceeding and is not applicable to rescission proceedings instituted to determine an alien's eligibility for a previous grant of adjustment of status. |
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(1) The burden and presumption of section 291 of the Immigration and Nationality Act, 8 U.S.C. Sec. 1361 (1982), are applicable not only to a charge of entry without inspection, but to any charge of deportability which draws into question the time, place, or manner of the alien's entry into the United States. (2) Deportability under section 241(a)(1) of the Act, 8 U.S.C. Sec. 1251(a)(1)(1982), as one who was excludable at entry as a stowaway under section 212(a)(18) of the Act, 8 U.S.C. Sec. 1182(a)(18)(1982), is established by the respondent's admission of birth in Colombia and the presumption of section 291 of the Act, where the respondent failed to meet his burden to show the time, place, and manner of his entry into the United States. |
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An alien deportable under
section 241(a)(5) of the Immigration and Nationality Act, 8 U.S.C. |
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(1) An alien who arrives
in the United States as a stowaway is not accorded additional rights by
virtue of his subsequent parole into this country pending the adjudication
of his asylum (2) The exclusionary procedures set forth in section 235(b) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1225(b)(1982), do not apply to alien crewmen or stowaways; hence, the applicant, a stowaway, was subject to exclusion from the United States without an exclusion hearing or right of appeal from such hearing usually available to aliens seeking entry into this country. (3) Where the applicant
is a stowaway and thus not entitled to an exclusion or deportation (4) The Board of Immigration Appeals, by adopting the position that Congress intended a distinct and disparate treatment under the Act for illegal crewman and stowaways, declines to follow the holding of the United States Court of Appeals for the Second Circuit in Yiu Sing Chun v. Sava, 708 F.2d 869 (2d Cir. 1983), and thus concludes that an alien stowaway is not entitled to a hearing before an immigration judge for the purpose of adjudicating a renewed asylum application. (5) The alien stowaway is not deprived of the opportunity to have his asylum claim considered, but in view of his status under the Act that opportunity is limited to consideration by the district director. |
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Portugues Do Atlantico Information Bureau, Inc., ID#2982 (1) The proposition that
experience is the same as or generally can be substituted for the (2) Individuals lacking the particular degrees normally prerequisite to professional practice in their fields of endeavor may be classified as professionals in rare instances where they occupy clearly professional positions, have substantially completed normal educational requirements for the position they occupy, are recognized and permitted to practice as professionals. Case law also accommodates those instances where individuals attain professional standing through directed experience and specialized instruction recognized by appropriate professional bodies as a form of preparation for the practice of particular professions, e.g., "reading" law. (3) A professional position is one which requires a standard and at least baccalaureate level of university education for practice, in which that education is applied, and which requires extensive autonomous application of individual professional knowledge to particular fact situations. |
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(1) Where expatriation
is in issue, commission of any of the acts specified in section 349(a)
of the Immigration and Nationality Act, 8 U.S.C. § 1481(a) (1982),
may be viewed as highly (2) Citizenship will
not be lost when the citizen commits an expatriating act under (3) Where the petitioner
failed to distinguish between coercion and motivation, the Board of |
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Aliens who were refused
admission and subsequently escaped from carrier custody while |
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(1) The phrases "particularly
serious crime" and "serious non-political crime" in sections (2) The modifiers "particularly serious" and "serious" in sections 243(h)(2)(B) and (C) of the Act relate only to the nature of the crime itself. |
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(1) Construction of the
provisions the United Nations Protocol Relating to the Status of (2) An alien in an exclusion or deportation proceeding who seeks to demonstrate eligibility for either asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158 (1982), or withholding of deportation under section 243(h) of the Act, 8 U.S.C. § 1253(h) (1982), must make two related showings: he must meet his evidentiary burdens of proof and persuasion as to the facts, and he must meet the statutory standards of eligibility set out by the pertinent provisions in the Act. (3) It is the alien who
bears the burdens of proof and persuasion in asylum and withholding of (4) In order to meet the statutory standard of eligibility for asylum, an alien must satisfy each of the following four elements in the definition of a refugee created by section 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (1982): (1) the alien must have a "fear" of "persecution"; (2) the fear must be "well founded"; (3) the persecution feared must be "on account of race, religion, nationality, membership in a particular social group, or political opinion"; and (4) the alien must be unable or unwilling to return to his country of nationality or to the country in which he last habitually resided because of persecution or his well-founded fear of persecution. (5) The statutory standard
for asylum requires the facts to show that an alien's primary (6) The term "persecution" in the definition of a refugee under the Act means harm or suffering that is inflicted upon an individual in order to punish him for possessing a belief or characteristic a persecutor seeks to overcome; the word does not encompass the harm that arises out of civil or military strife in a country. (7) The requirement of a "well-founded fear of persecution" in section 101(a)(42)(A) of the Act means that an individual's fear of persecution must have its basis in external, or objective, facts that show there is a realistic likelihood he will be persecuted upon his return to a particular country; this requires an alien to show that his fear has a solid basis in objective facts or events and that it is likely he will become the victim of persecution. (8) In order for an alien
to show that it is likely he will become the victim of persecution, his (9) The well-founded fear standard for asylum and the clear probability standard for withholding of deportation are not meaningfully different and, in practical application, converge. (10) "Persecution on account of membership in a particular social group" refers to persecution that is directed toward an individual who is a member of a group of persons, all of whom share a common, immutable characteristic, i.e., a character- istic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed. (11) In order for an alien to show persecution on account of "political opinion" within the meaning of the Act, it is not sufficient to show that a persecutor's conduct furthers his goals in a political controversy; rather, the alien must show that it is his own, individual political opinion that a persecutor seeks to overcome by the infliction of harm or suffering. (12) The requirement that an alien must be unable or unwilling to return to a particular country because of persecution or a well-founded fear of persecution requires an alien to do more than show a threat of persecution in a particular place or abode within a country -- he must show that the threat of persecution exists for him country-wide. |
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Golden Dragon Chinese Restaurant, ID#2987 (1) In proceedings pursuant to section 101(a)(15)(H)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(ii) (1982), the role of the Department of Labor is strictly advisory and temporary labor certification determinations by the Department of Labor are not binding on the Immigration and Naturalization Service. (2) Petitions pursuant to section 101(a)(15)(H)(ii) of the Act for a class or type of employee for which the petitioner has a permanent need where the petitioner makes attempts to establish the temporariness of its need for the beneficiary's services by stipulating that the beneficiary will function as a trainer or instructor rather than in a productive capacity must be accompanied by evidence of the existence of a training program, by evidence that the petitioner has recruited or hired trainees, and by evidence that the petitioner can viably employ a full-time instructor and can viably simultaneously operate a training program and a commercial or other enterprise. |
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Cantec Representatives, Inc., ID#2988 (1) An incumbent in a Schedule A, Group IV position does not have to meet the exact minimum job qualifications specified by the employer in the application for a blanket labor certification submitted to obtain third-preference visa status because an employer may stipulate a minimum educational qualification for such a position which it regards as equivalent to an incumbent's experience or occupational training. (2) However, the minimum
job qualifications are relevant to consideration of the visa petition (3) Similarly, despite
the fact that the incumbent need not meet the express minimum job |
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Approval of an application for a waiver of a bar to admission pursuant to section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (1982), is dependent in part upon a showing of extreme hardship, and thus only in cases of great actual or prospective injury to a qualifying party will the bar be removed. |
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United Investment Group, ID#2990 (1) Neither a sole proprietorship
nor a partnership is a legal entity apart from its owner or (2) For the purpose of
a visa petition, the actual partnership which existed when the job offer |
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(1) Receipt of Supplemental
Security Income ("SSI") constitutes receipt of public assistance
and is sufficient cause to breach a public charge bond, even in the (2) Ignorance on the
part of the obligor that receipt of SSI may result in a public charge
bond |
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(1) An alien who has violated a lawful order of deportation by failing to report to the Immigration and Naturalization Service following notification that his deportation has been scheduled does not merit the favorable exercise of discretion required for reopening of deportation proceedings. (2) Notice of a decision of the Board of Immigration Appeals sent to an alien's attorney of record constitutes notice to the alien. (3) The unsupported claim
that the respondents' failure to depart voluntarily was due to their |
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(1) Where an alien had notice of his hearing, had an opportunity to attend, and showed no reasonable cause for his failure to appear, the hearing may properly be held in absentia. (2) The submission of a motion for a continuance does not relieve an alien or his attorney of the responsibility to attend a deportation hearing of which they have been given notice. (3) Unless a motion for a continuance has been granted prior to the hearing, the alien remains obligated to appear before an immigration judge at the appointed date and time to plead to the factual allegations and the charge of deportability stated in the Order to Show Cause and Notice of Hearing (Form I-221). (4) The immigration judge
properly conducted the respondent's hearing in absentia where no |
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(1) The favorable recommendation
of the Secretary of State is a necessary prerequisite to (2) An immigration judge has full authority in rescission proceedings under section 246 of the Act, 8 U.S.C. § 1256 (1982), to determine whether a section 212(e) waiver application, on which an alien's adjustment of status had been premised, was approved in error; a preliminary revocation of such waiver by the Immigration and Naturalization Service is neither necessary nor contemplated. (3) An alien's adjustment
of status under section 245 of the Act, 8 U.S.C. § 1255 (1982), is (4) A district director's approval of an alien's section 212(e) waiver application in excess of his authority does not operate to estop the Government from enforcing the congressionally imposed residency requirements of sections 212(e) and 245 of the Act. |
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(1) Although Article
42.12, section 3d of the Texas Code of Criminal Procedure is not a first (2) Where there has been
no affirmative showing that the trial judge lacked authority under |
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(1) The United States Court of Appeals for the Ninth Circuit has concluded that the "well-founded fear" standard for asylum and the "clear probability" standard for withholding of deportation are meaningfully different and that the former is "more generous" than the latter. (2) In describing the amount and type of evidence required to establish that a fear of persecution is "well founded," the Ninth Circuit has held that an alien must point to specific, objective facts that support an inference of past persecution or risk of future persecution; that the necessary objective facts may be established through the credible and persuasive testimony of the alien; and that only after objective evidence sufficient to suggest a risk of persecution has been introduced do the alien's subjective fears become relevant. (3) The term "persecution"
as it appears in section 101(a)(42)(A) of the Immigration and (4) Our conclusion that
the harm resulting from country-wide civil strife and anarchy is not (5) Throughout these proceedings the respondents have argued that they have a well-founded fear of persecution if returned to El Salvador on the basis of their "membership in a particular social group," comprised of young (18 to 30 years of age), urban, working-class males of military age who have not served in the military or otherwise affirmatively demonstrated their support for the Government of El Salvador; however, the respondents have not established the existence of a "particular social group" which is persecuted on account of the group's specific identifying characteristics and whose treatment based on those characteristics is distinct from the general population. (6) While the respondents
have shown statistically that many of those being killed in El Salvador
are young males, a purely statistical showing is not by itself sufficient
proof of the existence of a persecuted group; additionally, it is not
enough to simply identify the common characteristics of a statistical
grouping of a portion of the population at risk, but in the context of
the asylum and withholding provisions related to "membership in a
particular social group" under the Act there must be a showing that
the claimed persecution is on account of the group's identifying
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(1) A court decree confirming a nonjudicial divorce under Ghanaian customary law issued by an appropriate Ghanaian court is accepted as evidence both that a customary marriage was dissolved by a customary divorce and that the customary divorce is regarded as valid by the Ghanaian Government. (2) A Ghanaian court
decree which either grants or confirms a Ghanaian customary divorce is
an essential element of proof in substantiating a claimed customary divorce
in that if the (3) A Ghanaian court decree confirming a nonjudicial divorce under Ghanaian customary law is not deemed to be conclusive proof of the facts certified therein because of the potential for fraud or error in their issuance: fraud or mistake may be reasonably suspected where the facts recited on the decree of confirmation are contradicted by other evidence and the discrepancies have not been satisfactorily explained by the petitioner or where there is an absence of sufficient corroborating evidence. |
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(1) The parameters of the appellate jurisdiction of the Board of Immigration Appeals are circumscribed by the regulations which are set forth in 8 C.F.R. § 3.1(b) (1985). (2) Under 8 C.F.R. § 3.1(b)(5) (1985), the Board's authority to review decisions regarding visa petition revocation is limited to that accorded by 8 C.F.R. §§ 205.1 and 205.2 (1985). (3) Since there is no provision for appellate review when a visa petition is automatically revoked under 8 C.F.R. § 205.1 (1985), the Board lacks jurisdiction over appeals dealing with the automatic revocation of a petition. |
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(1) An appeal from the denial or revocation of a visa petition may be filed only by the petitioner. (2) Since the appellate jurisdiction of the Board of Immigration Appeals is defined by the regulations set forth in 8 C.F.R. § 3.1(b) (1985), the Board has no jurisdiction over a particular matter unless it has been affirmatively granted by the regulations. (3) Under 8 C.F.R. § 3.1(b)(5) (1985), the Board's authority to review decisions on visa petitions is limited to that accorded by Part 204 of the regulations, which provides only for an appeal by the petitioner. (4) Since the Board's jurisdiction over decisions on visa petitions is limited to appeals by the petitioner, the Board lacks jurisdiction to address an appeal by the beneficiary from the denial of a visa petition. Matter of Varela, 13 I&N Dec. 453 (BIA 1970), modified. (5) The regulation at 8 C.F.R. § 3.1(c) (1985), which grants the Board power to certify cases, permits certification only to matters within the Board's appellate jurisdiction as set forth in 8 C.F.R. § 3.1(b) (1985). (6) Since the Board lacks authority to review an appeal by a beneficiary from the denial of a visa petition, such an appeal also may not be reviewed upon certification. Matter of Arteaga-Godoy, 14 I&N Dec. 226 (BIA 1972), overruled. |
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(1) The term "country,"
used to describe a place of deportation under section 243(a) of the (2) Offices maintained in New York City on behalf of the Republic of Estonia do not qualify under section 243(a) of the Act as a "country" of deportation. (3) When an alien who is a native of Soviet-occupied Estonia steadfastly rejects allegiance to the Soviet Union, that country does not constitute a country of which the alien is a "subject, national, or citizen" within the meaning of section 243(a) of the Act. (4) When no other country
but the Soviet Union is willing to accept a deportable alien into its |
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(1) An alien who circumvents
the orderly procedures for obtaining refugee status abroad may be granted
asylum as a matter of discretion if he establishes sufficient countervailing (2) Generally, it will
be necessary to balance the positive and negative factors in each case |
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(1) The term "persecution" as used in section 241(a)(19) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(19) (1982), includes the confinement of political prisoners, Jehovah's Witnesses, Protestant and Catholic clergy, Jews, and other opponents of the Nazi regime in the Nazi work camp at Gross-Rosen. (2) Those persons who actively participated in the management of Nazi concentration camps which included the supervising and training of concentration camp guards engaged in persecution as defined under section 241(a)(19) of the Act. (3) The respondent, a concentration camp guard at Gross-Rosen, assisted in the persecution of prisoners who, because of their religious and political beliefs, were singled out for harsher treatment. (4) The respondent was
found to have assisted in the persecution of prisoners under section (5) The respondent, who claimed that he merely obeyed orders and was denied a transfer from the Gross-Rosen concentration camp, did assist in persecution and is deportable under section 241(a)(19) of the Act, notwithstanding his claim that his actions were involuntary. (6) The respondent materially
misrepresented his wartime military service to immigration (7) An alien deportable under section 241(a)(19) of the Act is ineligible for relief from deportation under sections 241(f) and 244(a) and (e) of the Act, 8 U.S.C. §§ 1251(f) and 1254(a) and (e) (1982). |
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(1) It is not possible to construe the uninterrupted physical presence requirement of section 316(b) of the Act, 8 U.S.C. § 1427(b) (1982), to allow departures from the United States. INS v. Phinpathya, 464 U.S. 183 (1984), followed; INTERP. 316.1(c)(3) overruled. (2) The effect of Rosenberg v. Fleuti, 374 U.S. 449 (1963), cannot be extended to statutory schemes which include a requirement of uninterrupted or continuous physical presence. (3) An applicant's failure to establish that he or she has been present in the United States for an uninterrupted period of 1 year after lawful admission for permanent resident bars eligibility for preservation under section 316(b). (4) Any departure from the United States for any reason or period of time bars a determination that an alien has been continuously physically present in the United States or present in the United States for an uninterrupted period during the period including the departure. |
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(1) An alien who did not come to the United States to receive graduate medical training, but who was admitted to the United States as an exchange alien under section 101(a)(15)(J) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(J) (1982), would not be barred from applying for suspension of deportation if he was not subject to the 2-year requirement of section 212(e) of the Act, 8 U.S.C. § 1182(e) (1982), or if he had fulfilled the requirement, or if he had obtained a waiver thereof. (2) The respondent, who came to the United States to obtain a college degree and not to obtain a graduate medical education, is subject only to the provisions of section 244(f)(3) of the Act, 8 U.S.C. § 1254(f)(3) (1982); hence, the facts in this case are distinguishable from those in Matter of Mangaser, 19 I&N Dec. 28 (BIA 1983), in which we held that the alien, who was a physician coming to the United States to receive graduate medical training, was subject to the provisions of section 244(f)(2) of the Act and, therefore, ineligible for suspension of deportation regardless of whether he was subject to or had fulfilled the 2-year residence requirement of section 212(e) of the Act. Matter of Mangaser, supra, distinguished. (3) The respondent, who was reinstated to exchange visitor ("J-1") status after admission to the United States and at his own request in 1979, became subject to the requirements of the Act and regulations in effect on the date of his reinstatement and, therefore, the 2-year foreign residence requirement applies to him. Matter of Baterina, 16 I&N Dec. 127 (BIA 1977), followed. (4) Assuming arguendo that the doctrine of estoppel is applicable against the Government in immigration cases, the respondent has failed to establish affirmative misconduct on the part of the Government or reasonable reliance upon the decision of an immigration inspector. |
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A derivative beneficiary
"accompanying or following to join" a principal alien under
section |
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Where the respondent
presented a generalized statement on the Notice of Appeal (Form |
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(1) An alien is barred
from the relief of withholding of deportation if he, having been convicted
by (2) Once a finding is
made that an alien has been finally convicted of a particularly serious (3) Because the proper
focus is on the serious nature of the crime and not on the likelihood
of (4) If an applicant is
statutorily ineligible for withholding of deportation because he is a
danger to |
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Siemens Medical Systems, Inc., ID#3008 (1) Where each of two
corporations (parents) owns and controls 50 percent of a third (2) Each parent, through
ownership and control of 50 percent of the voting shares of the joint (3) All agreements between
the parents relating to voting of the shares, distribution of profits, |
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(1) Under the pertinent
provisions of section 19 of the Immigration and Nationality Act (2) Section 19 of the
1981 Amendments to the Act has been interpreted by the Immigration and |
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(1) In holding that an
applicant for adjustment of status who is returning to the United States (2) The applicants, who
no longer derive protection from the dissolved injunction in Silva v.
Bell, |
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(1) There is a strong
presumption that an attorney's decision to concede an alien's deportability (2) It is immaterial
whether an alien actually authorized his attorney to concede deportability
in a (3) An allegation that
an attorney was authorized to represent an alien only to the extent |
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American Paralegal Academy, Inc., ID#3012 (1) "Nominal charges,"
as set forth in 8 C.F.R. § 292.2(a) (1986), are not defined in terms
of (2) The applicant, whose
charges for services exceed amounts which can be construed as (3) The applicant's detailed
fee schedule and its statement that it will provide free services as (4) "Nominal charges,"
as contemplated by 8 C.F.R. § 292.2(a) (1986), were not intended
as a |
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A. Dow Steam Specialities, Ltd., ID#3013 In occupational preference
visa petition proceedings a petitioner, having no location in the |
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Faith Assembly Church, ID#3014 (1) An alien classifiable
as a special immigrant pursuant to section 101(a)(27)(C)(i) of the (2) Any minister, who
for the previous 2 years has been or will be engaged in part-time |
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(1) The legitimate purpose
recognized in Matter of Chouliaris, (2) To the extent that
Matter of Chouliaris requires a further order granting voluntary departure
in |
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(1) The Supreme Court's
holding in INS v. Phinpathya, 464 U.S. 183 (1984), may be applied (2) The Supreme Court
held in INS v. Phinpathya that the continuous physical presence |
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Silver Dragon Chinese Restaurant, ID#3017 (1) An occupational preference
petition may be filed on behalf of a prospective employee who is (2) A shareholder's concealment,
in labor certification proceedings, of his or her interest in the |
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(1) An alien conditionally
admitted to the United States as a refugee under section 207 of the (2) The sole basis for
terminating the status of an alien admitted to the United States as a (3) Absent the proper
termination of his status, an alien who has been admitted as a refugee |
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Harry Bailen Builders, Inc., ID#3019 A labor certification
issued by the Department of Labor applies only to a specific job opportunity. |
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(1) In order to accord
preference status to the beneficiary as his (2) Under the New Jersey
Parentage Act, effective May 21, 1983, all children and parents have (3) To qualify as a legitimated
"child" under section 101(b)(1)(C) of the Act, a beneficiary
must (4) Where the petitioner
seeks to establish that the beneficiary was legitimated under the New |
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Where a spouse visa petition
is filed in the New York District Office of the Immigration and |
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(1) Section 243(h)(2)(B)
of the Immigration and Nationality Act, (2) A particularly serious crime is one that, by its nature, represents a danger to the community. (3) Crimes that are inherently
"particularly serious" satisfy, on their face, the requirements
of the (4) A New York State
conviction for residential burglary in the first degree is per se a "particularly |
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Notwithstanding the fact
that an illegitimate child may qualify for immigration purposes as the |
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When an applicant for
admission has notice of his exclusion hearing and fails to appear, the |
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(1) A request for a continuance was properly denied by the immigration judge because the respondents did not show good cause for a continuance. (2) A deportation hearing was properly held in absentia where the respondents, without reasonable cause, failed to appear for the hearing. (3) In the absence of a brief in support of their appeal, a reasonable explanation for the respondents' failure to appear for the hearing or a demonstration that they were prejudiced in any manner, a summary dismissal of the appeal pursuant to 8 C.F.R. 3.1(d)(1-a)(iv) (1987) is appropriate. |
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An extract of household
registration records is acceptable evidence of family relationships in |
|
Orders of the Board of
Immigration Appeals which provided that applications for legalization |
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(1) In INS v. Cardoza-Fonseca,
480 U.S. 421 (1987), the United States Supreme Court held that the "clear
probability" of persecution standard employed for withholding of
deportation under section 243(h) of the Immigration and Nationality Act,
8 U.S.C. § 1253(h) (1982), does not (2) The well-founded fear of persecution standard used in section 208 of the Act is significantly different from the clear probability standard used in section 243(h). (3) An applicant for asylum under section 208 of the Act has established a well-founded fear if a reasonable person in his circumstances would fear persecution. (4) A reasonable person may well fear persecution even where its likelihood is significantly less than clearly probable. (5) An alien's own testimony in an asylum case may be sufficient, without corroborative evidence, to prove a well-founded fear of persecution where that testimony is believable, consistent, and sufficiently detailed to provide a plausible and coherent account of the basis for his fear. (6) Matter of Acosta's requirement that an applicant for asylum show, inter alia, that the potential persecutor "could easily become aware" that the applicant possesses a belief or characteristic the persecutor seeks to overcome by some punishment is changed by omitting the word "easily." |
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(1) Pursuant to section
205 of the Immigration and Nationality Act, 8 U.S.C. § 1155 (1982),
a (2) "Good and sufficient
cause" for issuing such a notice exists when the evidence of record
at (3) There is "good
and sufficient cause" within the meaning of section 205 of the Act
to revoke (4) A decision to revoke
approval of a visa petition will not be sustained where the notice of (5) A decision to revoke
approval of a visa petition will be sustained where a petitioner fails
to |
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A foreign divorce is
not recognized as valid under California law if both parties to the marriage |
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(1) The immigration judges
and the Board lack jurisdiction in exclusion and deportation (2) An application for
a waiver of inadmissibility under section 212(k) of the Immigration and (3) A waiver of inadmissibility
under section 212(k) of the Act was properly denied where the |
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(1) The respondents,
who have the burden of showing a well-founded fear of persecution to (2) Where the respondents
cannot speak English fluently, the presence of a competent (3) A remand is ordered
by the Board of Immigration Appeals for the purpose of conducting a |
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(1) An alien's manner
of entry or attempted entry is a proper and relevant discretionary factor
to (2) The circumvention
of orderly refugee procedures can be a serious adverse factor in (3) The circumvention
of the immigration laws is only one of a number of factors which should (4) The circumvention
of orderly refugee procedures alone is insufficient to require the most |
|
(1) Pursuant to sections
245(e)(1) and (2) of the Immigration and Nationality Act, 8 U.S.C. § (2) At a minimum, administrative
proceedings begin with the filing of an Order to Show Cause (3) Under section 204(h)
of the Act, 8 U.S.C. § 1154(h) (Supp. IV 1986), an alien may not
be (4) An application for
a waiver of excludability should not be submitted by an alien subject
to the |
|
Dial Auto Repair Shop, Inc., ID#3035 (1) In a third- or sixth-preference
visa petition involving an individual labor certification, (2) Where a successorship
in interest is recognized, the petitioner bears the burden of proof to |
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(1) The immigration judge
erred in denying the respondent's application for adjustment of status (2) The immigration judge
also erred by not weighing the respondent's significant family ties (3) In accordance with
an interim rule promulgated by the Immigration and Naturalization |
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(1) In bond redetermination
proceedings, the Board of Immigration Appeals may consider the (2) The Board determined
that the respondent's numerous convictions indicate a consistent (3) In setting a substantial
bond, the Board took into consideration the respondent's disrespect (4) An alien's early
release from prison and transition to a parole status do not necessarily |
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A Canadian citizen railroad
clerk employed by a Canadian railroad who seeks to enter the |
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(1) Oral argument is
heard at the discretion of the Board of (2) The appealing party
is not relieved of the responsibility for meaningfully informing the Board (3) Where the Notice
of Appeal is conclusory and does not meaningfully apprise the Board of |
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(1) The respondent's
government has the same right as other governments to require military (2) Persecution for failure
to serve in the military may be established in those rare cases where (3) The case of Matter
of Salim, 18 I&N Dec. 311 (BIA 1982), is distinguishable from the
present |
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(1) A threat to harm
or kill a deserter from a guerrilla organization operating in a country
does not (3) The threat to harm
a deserter from the guerrilla organization is part of a military policy
of that (4) The holding of Bolanos-Hernandez
v. INS, 767 F.2d 1277 (9th Cir. 1984), is not applied (5) It is not persecution
for the government of a country to investigate and detain individuals |
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(1) A petitioner must
be afforded a reasonable opportunity to (2) Reasonable and timely
requests for an extension of time tosubmit a rebuttal to the notice of (3) To be considered
"reasonable," a request for an extension of time to submit a
rebuttal must (4) Where a petitioner
fails to timely and substantively respond to the notice of intention to
deny |
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(1) The pardon issued
automatically to the respondent as a first (2) The availability
or unavailability of a pardon under state or federal law, or the existence
or |
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(1) A conviction exists
for immigration purposes where an alien has had a formal judgment of (2) A conviction for
a crime involving moral turpitude may not support an order of deportation
if it (3) A conviction for
a narcotics or marihuana violation is final regardless of the possibility
of (4) The respondent, whose
adjudication of guilt was stayed and whose proceedings were |
|
(1) The interpretation
that administrative proceedings are still "pending," as that
term is used in (2) A respondent in deportation
proceedings is not eligible for adjustment of status under section |
|
Michael Hertz Associates, ID#3046 An industrial designer
who has a baccalaureate degree in industrial design from an accredited |
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(1) An immigration judge
may permit an alien in exclusion proceedings to withdraw his (2) A balancing of the
equities test is not an appropriate method by which to determine whether (3) It was never contemplated
that the withdrawal of an application for admission would become (4) Once the exclusion
hearing has been conducted and the issues |
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A petitioner may submit
a certified copy of a document in support of a visa petition in |
|
(1) A decision to revoke
approval of a visa petition can only be grounded upon, and the petitioner (2) Observations of the
consular officer that are conclusory, speculative, equivocal, or irrelevant |
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(1) The group of young,
male, urban, unenlisted Salvadorans does (2) An alien who merely
testifies at his deportation hearing that he wishes to remain neutral
in (3) The forcible recruitment
of young males by a guerrilla organization does not constitute (4) A sovereign government
does not engage in persecution when it drafts its citizens in order to (5) An alien's testimony
that he fears persecution in his native country because he applied for (6) An immigration judge is not required to make credibility findings in every case. (7) An immigration judge
is required to admit the Department of State Bureau of Human Rights (8) Evidence of conditions
in an alien's native country is |
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(1) The petitioner bears
the burden in visa petition revocation (2) Approval of a visa
petition vests no rights in the beneficiary of the petition but is only
a (3) The realization by
the district director that he made an error in judgment in initially approving (4) Doubt cast on any
aspect of the petitioner's proof may lead to a reevaluation of the reliability (5) Evidence serving
as the basis of a notice of intention to revoke approval of a visa petition (6) It is incumbent upon
the petitioner to resolve any inconsistencies in the record by |
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Church Scientology International, ID#3052 (1) A person seeking
a Schedule A, Group IV, labor certification (2) In view of congressional
intent that the "L-1" provisions be used for personnel transferred
by (3) Ownership and control
are the factors for establishing a qualifying relationship between (4) Ownership refers
to the direct or indirect legal right of possession of the assets of an
entity (5) Control means the
direct or indirect legal right and authority to direct the establishment, |
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(1) When a hearing is
scheduled to consider an application for relief by a respondent and the (2) As the regulations
specifically require that an applicant be examined in person prior to
the |
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(1) An alien who raises
the claim questioning the legality of evidence must come forward with
proof establishing a prima facie case before the Immigration and Naturalization
Service will be called upon to assume the burden of justifying the manner
in which it obtained evidence. Matter (2) Where an alien wishes to challenge the admissibility of a document, the mere offering of an affidavit is not sufficient to sustain his burden. (3) If the affidavit is such that the facts alleged, if true, could support a basis for excluding the evidence, then the claims must also be supported by testimony. |
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(1) The Anti-Drug Abuse
Act of 1986, Pub. L. No. 99-570, 100 (2) Section 241(a)(11)
of the Act, which previously rendered deportable only those aliens (3) The Board's construction of the former statute, which distinguished a conviction for unlawful use of a proscribed drug from a conviction for its unlawful possession, was based on the clearly different language of the former statute and is clearly incompatible with the plain meaning of the amended statute. Matter of Sum, 13 I&N Dec. 569 (BIA 1970), superseded. |
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(1) A steprelationship under section 101(a)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(B) (1982), must be based on a marriage that was at some point a valid one. (2) A sham marriage is
invalid from its inception and cannot under any circumstances be the (3) Even where there
is an ongoing actual family relationship between a stepparent and a |
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(1) An alien who is extradited
to the United States and paroled (2) If the parole of an alien who has been extradited to the United States is terminated, he must be given a reasonable opportunity to depart unless there is evidence that he is an applicant for admission. (3) An extradited alien's failure to depart from the United States within the 7 days granted by the district director does not by itself establish that the alien is an applicant for admission. (4) Where an alien who
is extradited to the United States denies that he is an applicant for (5) If upon remand it is established that the Government impeded the alien's efforts to depart, such evidence shall weigh against a finding that he was given a fair and reasonable opportunity to depart. |
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(1) One or more of the adverse discretionary factors noted in Matter of Marin, 16 I&N Dec. 581 (BIA 1978), may ultimately be determinative of whether section 212(c) relief is granted in an individual case. (2) The necessity of
demonstrating unusual or outstanding equities as part of an application
for section 212(c) relief is not exclusively triggered by serious crimes
involving controlled (3) The need to show
unusual or outstanding equities in a section 212(c) case may be (4) An alien who demonstrates unusual or outstanding equities, as may be required in a section 212(c) matter, merely satisfies the threshhold test for having a favorable exercise of discretion considered in his case; such a showing does not compel that discretion be exercised in his favor. Matter of Marin, supra, clarified. (5) Rehabilitation is
one of the favorable considerations in the discretionary evaluation with (6) Notwithstanding the presence of an unusual or outstanding equity, the Board of Immigration Appeals denied section 212(c) relief in the exercise of discretion, because of the serious nature of the alien's criminal convictions and his failure to establish rehabilitation. |
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(1) A motion to reopen
or reconsider based upon a claim of ineffective assistance of counsel (2) An alien deportable under section 241(a)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(4) (1982), is ineligible for voluntary departure unless he qualifies under the provisions of section 244(a)(2) of the Act, 8 U.S.C. § 1254(a)(2) (1982), which in the case of criminal offenders requires, inter alia, that the alien have been physically present in the United States and a person of good moral character for a continuous period of not less than 10 years following the date of his conviction. Matter of P-, 6 I&N Dec. 788 (BIA 1955), followed. |
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(1) Where an immigration
judge conducts an exclusion or deportation hearing in absentia, an (2) When the basis for
a motion to reopen is that the immigration judge held an in absentia (3) A party seeking to
reopen the proceedings must state the new facts which he intends to (4) A motion to reopen
proceedings will be granted if the alien had reasonable cause for his |
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(1) In order to qualify as an illegitimate son or daughter under section 203(a) of the Immigration and Nationality Act, 8 U.S.C. § 1153(a) (1982), one must have once qualified as an illegitimate child under section 101(b)(1)(D) of the Act, 8 U.S.C. § 1101(b)(1)(D) (Supp. IV 1986). (2) Section 101(b)(1)(D) of the Act, as amended by the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359, is applicable to all visa petitions filed after the effective date of the amendment, even if the son or daughter was over 21 at the time the new law went into effect. (3) Section 101(b)(1)(D) of the Act, as amended, is applicable to all immediate relative petitions filed and pending at the time the change in the statute went into effect. (4) In all cases where immigration benefits are sought by virtue the relationship of an illegitimate son or daughter to his or her natural father, it must be shown that a "bona fide parent-child relationship" was established when the son or daughter was unmarried and under 21 years of age. (5) Congress' expansion
of section 101(b)(1)(D) to allow illegitimate children to receive or (6) In considering whether
a "bona fide parent-child relationship" exists under section (7) To establish a "bona
fide parent-child relationship," there should be a showing that the |
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Regulations effective March 30, 1987, permit a total period of time in "H-1" classification of only 5 years or, in some extraordinary circumstances, up to a maximum of 6 years. Extraordinary circumstances exist, in the case of a plasma physicist who is a key member of a research team, where it is shown that denial of an extension of stay would result in serious hardship to the petitioner and to research projects of national significance in which the petitioner is involved under contract with United States Government agencies. |
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(1) "Administrative closing" is merely an administrative convenience which allows the removal of cases from the calendar in certain situations, without the entry of a final order. (2) Where, after several
hearings and continuances, the respondent failed to appear at a |
|
(1) Where an attorney
asks to withdraw from representation of an alien, his request for (2) Unless these requirements
are met, counsel's withdrawal should be only conditionally |
|
(1) Dangers which arise
from the nature of employment as a policeman in an area of (2) If policemen or guerrillas
are considered to be victims of persecution based solely on an (3) Status as a former
policeman is an immutable characteristic, and mistreatment occurring (4) Although an applicant for asylum, who claims he may be subject to persecution because of his status as a former policeman, need not establish the exact motivation of a "persecutor" where different reasons for actions are possible, he does bear the burden of establishing facts on which a reasonable person would fear that the danger arises on account of his race, religion, nationality, membership in a particular social group, or political opinion. (5) Even if an asylum
claim is assumed to be otherwise demonstrated, eligibility for asylum |
|
Except possibly under
unusual circumstances not present here, a single conviction for a |
|
Sandoz Crop Protection Corporation, ID#3067 (1) Specialized knowledge
involves proprietary knowledge and an advanced level of expertise (2) A petitioner's ownership
of patented products or copyrighted works, in and of itself, does not
establish that a particular employee has specialized knowledge. In order
to qualify, the |
|
An aggravated assault
against a peace officer, which results in bodily harm to the victim and |
|
(1) The effective date of an alien's acquisition of lawful permanent resident status pursuant to section 1 of the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, is 30 months prior to his application for such adjustment of status, or the date of his last arrival in the United States, whichever date is later. (2) In consideration
of an application for a waiver of excludability under section 212(c) of
the |
|
(1) For the purposes of a section 249 application for creation of record of admission, continuous residence is interrupted when an individual establishes an actual abode abroad, whether or not that individual maintains financial, property, and personal ties in the United States and asserts an intent to continue residence. (2) It is the nature of the circumstances of the departure(s) which determines an interruption of continuous residence, not the number or duration of departures from the United States. |
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(1) An applicant in exclusion
proceedings who has been convicted in a state court of (2) The Board of Immigration Appeals and immigration judges are not bound by the provisions of 8 C.F.R. § 208.8(f)(1)(iv) (1988) which precludes district directors of the Immigration and Naturalization Service from granting asylum to an alien who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States. (3) While the Board and immigration judges are not precluded from granting the relief of asylum to an alien who is barred from relief under section 243 (h)(2) of the Act as one who has been convicted of a particularly serious crime, we have, as a matter of practice, considered such a bar to be a controlling factor in determining whether an alien warrants a grant of asylum in the exercise of discretion. (4) The Board now withdraws
from the practice of pretermitting asylum applications when the |
|
(1) The grant or denial
of a change of venue motion is within the discretion of the immigration (2) Denial of the respondent's
request to change venue from Puerto Rico, the place of his |
|
(1) In determining whether a conviction comes within the "petty offense" exception of section 212(a)(9) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9) (Supp. IV 1986), as amended by the Comprehensive Crime Control Act of October 12, 1984, Pub. L. No. 98-473, 98 Stat. 1837 (effective Nov. 1, 1987), the focus must be on the actual sentence imposed and not on what punishment an alien could have received under the applicable criminal statute. (2) Where a criminal
court suspends imposition of sentence, no sentence has been "actually (3) Where the criminal
court convicted the respondent of a crime involving moral turpitude and
sentenced him to 2 years' imprisonment but suspended execution of the
sentence, the |
|
(1) Although it provides
"significant guidance," the Office of the United Nations High (2) Neither the terms
of the Protocol nor the conduct of nations which are signatories to the (3) The Handbook suggests that nations may wish to extend protection to alien conscientious objectors consistent with developments in domestic laws, but this is a policy matter separate from the traditional issue of whether an alien is a "refugee" under the Protocol; such policy questions are outside the jurisdiction of the Board of Immigration Appeals. (4) The motivation of
an alleged persecutor is a relevant and proper consideration when (5) An alien must demonstrate that there is an objective basis for his fear in order to establish that he has a "well-founded fear of persecution" within the meaning of the Refugee Act. (6) Absent a showing
that his government enacted its conscription laws with the intent of |
|
(1) An alien bears the
burden of establishing eligibility for a waiver of deportation pursuant
to (2) Where the amount
of marihuana that an alien has been convicted of possessing cannot be (3) Hearsay evidence is admissible in deportation proceedings unless its use is fundamentally unfair to an alien. (4) As provided by the
regulations in 8 C.F.R. § 242.14(c) (1988), an immigration judge
may (5) The admission into
evidence of police reports concerning the circumstances of an alien's |
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(1) In order to obtain preference status for the beneficiary as his son under section 203(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1153(a)(1) (1988), a petitioner must establish that the beneficiary once qualified as his "child" within the meaning of section 101(b)(1) of the Act, 8 U.S.C. § 1101(b)(1). (2) Under the law of New York, the father's residence and domicile, legitimation of a child born out of wedlock requires the marriage of the child's natural parents. (3) By virtue of the Republic of Trinidad and Tobago Status of Children Act of 1981, enacted on March 1, 1983, all children born in or out of wedlock (after the effective date of the Act) have equal status under the laws of that country. Matter of Archer, 10 I&N Dec. 92 (BIA 1962), modified. (4) A child who comes
within the scope of the Republic of Trinidad and Tobago Status of |
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(1) A record of proceeding forwarded to the Board without a transcript of the proceedings pursuant to a motion for summary dismissal of the appeal under Matter of Torre, 19 I&N Dec. 18 (BIA 1984), must include a transcript of the immigration judge's decision in its entirety; the forwarding of the "order" and "further order" portions of the immigration judge's decision alone is insufficient. (2) The mere statement on a Notice of Appeal (Form I-290A) that a brief will be filed upon receipt of a transcript of the proceeding does not absolve the appealing party of the responsibility of adequately identifying the reasons for appeal on the Notice of Appeal. (3) Where a motion for
summary dismissal of an appeal has been made, the appellant can respond
in various manners: (1) argument can be made that the statements in the
Notice of Appeal adequately set forth the reasons for the appeal; (2)
the statement on appeal can be elaborated upon to meaningfully identify
the reasons for appeal; (3) a brief in support of the appeal can be submitted;
or, (4) if there are unusual reasons why a more explicit statement of
the reasons for appeal cannot be provided until a transcript is prepared,
they should be clearly identified. |
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(1) Neither the Geneva
Convention Relative to the Protection of (2) Neither an immigration judge nor the Board of Immigration Appeals has authority to grant extended voluntary departure, deferred action, or withholding of deportation of displaced persons to "war refugees"; that is, individuals seeking refuge outside their country of origin because of war, who do not meet the refugee definition of section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (1982). |
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(1) Where an applicant for admission to the United States has a colorable claim to returning resident status, the burden is on the Immigration and Naturalization Service to show by clear, unequivocal, and convincing evidence that the applicant should be deprived of his or her lawful permanent resident status. (2) An alien acquires lawful permanent resident status at the time of his initial admission to the United States as a lawful permanent resident, as at that point he attains "the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws," and is thus an alien "lawfully admitted for permanent residence" pursuant to section 101(a)(20) of the Act, 8 U.S.C. § 1101(a)(20) (1982). (3) For purposes of determining
whether the applicant has abandoned her lawful permanent resident status,
an applicant's absence from the United States due to her husband's having
a contract to work and study at a Japanese university cannot be said to
be a temporary visit abroad fixed by some early event, where the record
does not show a clear demarcation as to |
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(1) A student who acquired reinstatement by fraud, by not revealing his unauthorized employment, did not obtain lawful status. (2) Such student's situation is analogous to that of an alien in the United States illegally who departed and was subsequently admitted to the United States as a nonimmigrant. The Service has held that such alien, if he can demonstrate he reentered to resume his unlawful residence, may qualify for legalization benefits. (3) Acquisition of reinstatement
by fraud renders an alien excludable pursuant to section 212(a)(19) of
the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(19) (1982).
A waiver of excludability is provided by 245A(d)(2)(B)(i) of the Act,
8 U.S.C. § 1255a(d)(2)(B)(i) (Supp. IV |
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(1) Where a visa petition has once been denied based on a finding that the marriage was entered into solely to bestow an immigration benefit, the petitioner bears a heavy burden of proof with respect to any subsequently filed visa petition involving the same beneficiary. (2) A petitioner may be put on notice of evidentiary requirements by means such as a requirement in the regulations that a particular document be submitted with the visa petition; a notice of intent to deny, letter, or form noting the deficiency or requesting additional evidence; or an oral statement at an interview that additional evidence is required. (3) Where a visa petition
is denied based on a deficiency of proof, the petitioner had not been
put on notice of the deficiency and given a reasonable opportunity to
address it before the denial, and on appeal the petitioner proffers additional
evidence addressing the deficiency, the record (4) Where the petitioner was put on notice of the required evidence and given a reasonable opportunity to provide it for the record before the visa petition is adjudicated, evidence submitted on appeal will not be considered for any purpose, and the appeal will be adjudicated based on the record of proceedings before the Service. |
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Iberia Airlines Flight #IB 951, ID#3082 (1) Carriers subject to the requirements of section 271(a) of the Immigration and Nationality Act, 8 U.S.C. § 1321(a) (1982), fulfill their responsibilities under that section when they present their alien passengers for inspection at the place of arrival. (2) The custody requirements of 8 C.F.R. § 235.3(d) only apply to carriers who have entered into a contract with the Attorney General under section 238 of the Act, 8 U.S.C. § 1228 (1982). |
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(1) Section 204(a)(2)(A)
of the Immigration and Nationality Act, (2) Section 204(a)(2)(A) of the Act sets forth a presumption of a fraudulent prior marriage in any visa petition in which fewer than 5 years will have elapsed between the time a petitioner acquired lawful permanent resident status based on that prior marriage and the time his visa petition for a subsequent spouse is adjudicated. (3) In order to rebut the presumption of a fraudulent prior marriage set forth in section 204(a)(2)(A) of the Act, the petitioner has the burden of establishing by clear and convincing evidence that the prior marriage was not entered into for the purpose of evading any provision of the immigration laws. (4) The clear and convincing standard of proof, which requires more than the preponderance of the evidence standard but less than the beyond a reasonable doubt standard, is that degree of proof, though not necessarily conclusive, which will produce in the mind of the trier of fact a firm belief or conviction. (5) The evidence submitted by a petitioner in an attempt to rebut the presumption of a fraudulent prior marriage set forth in section 204(a)(2)(A) of the Act should not be presumed to be false or contrived, but rather should receive the same fair and reasonable evaluation as that given to evidence in any other visa petition proceeding. (6) Although a rapid
sequence of events in a case arising under |
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(1) Section 315(b)(3) of the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359, 3439-40, is inapplicable in matters regarding an Application to Preserve Residence for Naturalization Purposes (Form N-470) pursuant to section 316(b) of the Immigration and Nationality Act, 8 U.S.C. § 1427 (1982). (2) Any departure of an alien from the United States precludes establishment of an uninterrupted period of 1 year after lawful admission for permanent residence and therefore bars eligibility for preservation of residence pursuant to section 316(b) of the Act. Matter of Graves, 19 I&N Dec. 337 (Comm. 1985), followed. |
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Caron International, Inc., ID#3085 (1) In order to establish a person has preeminence in business, a petitioner must demonstrate that the person has skills and recognition in business substantially above that ordinarily encountered. The fact that a beneficiary is well known for achievements in his or her field is an important aspect of preeminence. (2) Not every person who owns or manages a business or holds a high position in a business is considered preeminent. Success or outstanding performance in business alone is not the same as preeminence. (3) General managerial
occupations such as those of vice-president are normally not (4) Certain occupations
may be in transition from nonprofessional to professional status. In (5) Substantial academic
course work in a professional field combined with professional experience
and achievement may be considered equivalent to a bachelor's degree. While
there are a number of colleges and universities in the United States which
give credit towards a degree based on experience, none will grant a baccalaureate
degree (6) The Immigration and Naturalization Service may, in its discretion, use as advisory opinions statements from universities, professional organizations, or other sources submitted in evidence as expert testimony. However, where an opinion is not in accord with other information or is in any way questionable, the Service is not required to accept or may give less weight to that evidence. |
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(1) Section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (Supp. IV 1986), as amended by the Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537, applies to aliens who have conspired to enter into a fraudulent marriage or who have sought to obtain an immigration benefit based on a fraudulent marriage. (2) Where the record
contains evidence that a visa petition was previously filed seeking (3) A visa petition may be denied pursuant to section 204(c)(2) of the Act, 8 U.S.C. § 1154(c)(2) (Supp. IV 1986), where there is evidence in the record to indicate that an alien previously conspired to enter into a fraudulent marriage. |
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(1) A reason which "comes unexpectedly into being" is an "emergent reason" for the purpose of determining continuous residence under 8 C.F.R. § 245a.1(c)(1)(i) (1988). (2) Notwithstanding an
absence from the United States of 58 days, the applicant maintained |
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(1) An alien who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion is barred from the relief of withholding of deportation pursuant to the provisions of section 243(h)(2)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h)(2)(A) (1982), and from asylum pursuant to the provisions of section 101(a)(42)(B) of the Act, 8 U.S.C. § 1101(a)(42)(B) (1982). (2) The participation or assistance of an alien in persecution need not be of his own volition to bar him from the relief of withholding of deportation and asylum. (3) While membership
in an organization, even one which engages in persecution, is not (4) Activity related
to a civil war or harm which may result from behavior directed toward
the (5) Regardless of whether the respondent aided the guerrillas voluntarily or not, the only harm or injury he may have inflicted arose as the natural consequence of civil strife and the harm resulting from such generalized civil strife is not persecution. |
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(1) Substantial academic
course work in a professional field combined with professional (2) Ordinary experience alone cannot be equated with a college degree. (3) Experience which
is substituted for education must include the theoretical and practical |
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(1) An Application for
a Waiver of Grounds of Excludability (Form I-690) pursuant to 8 C.F.R.
§245a.2(k) (1988) should be adjudicated separately from an Application
for Status as a (2) A nonimmigrant alien whose unlawful status is known to the United States Government as of January 1, 1982, is eligible for temporary resident status under section 245A of the Act if otherwise qualified. (3) A nonimmigrant alien who obtained a social security card, worked without authorization from the Immigration and Naturalization Service, and filed federal income tax returns prior to January 1, 1982, is an alien whose unlawful status as of January 1, 1982, is an alien whose unlawful status as of January 1, 1982, was known to the United States Government for purpose of eligibility under section 245A(a)(2) of the Act. (4) A nonimmigrant alien who reentered the United States as a nonimmigrant visitor for pleasure subsequent to January 1, 1982, but with an intention to resume an unrelinquished unlawful residence, is an alien who has been continuously residing in the United States in an unlawful status for purpose of eligibility under section 245A(a)(2)(A) of the Act and 8 C.F.R. § 245a.2(b)(9) (1988). (5) A nonimmigrant alien
who reentered the United States subsequent to January 1, 1982, with an
intention to resume an unrelinquished unlawful residence and who is an
applicant for (6) An alien who applies for temporary resident status under section 245A of the Act, but who is excludable on grounds which may be waived, must establish that the waiver should be granted for family unity, humanitarian reasons, or when it is otherwise in the public interest pursuant to section 245A(d)(2)(B)(i) of the Act and 8 C.F.R. § 245a.2(k)(2) (1988). (7) For purposes of eligibility under section 245A of the Act, permissible waivers of excludability should be granted liberally. (8) An alien who has contributed to a community financially by creating jobs and through public activities has established it would be in the public interest to grant his application for a waiver of grounds of excludability under section 245A(d)(2)(B)(i) of the Act and 8 C.F.R. § 245a.2(k)(2) (1988). |
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(1) An immigration judge
should not grant, sua sponte, a 6-month continuance to enable a (2) A deportation hearing
should be recorded verbatim, except for certain off-the-record (3) Objections to rulings of the immigration judge should be made on the record, or they cannot be adequately preserved for appeal. |
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(1) The effective date of an alien's acquisition of lawful permanent resident status pursuant to section 1 of the Cuban Refugee Adjustment Act of November 2, 1966, is 30 months prior to his application for such adjustment of status, or the date of his last arrival in the United States, whichever date is later. (2) For purposes of relief under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1982), the date of acquisition of lawful unrelinquished domicile by an alien who had his status adjusted pursuant to section 1 of the Cuban Refugee Adjustment Act of November 2, 1966, is 30 months prior to his application for such adjustment of status, or the date of his last arrival in the United States, whichever date is later. Matter of Diaz-Chambrot, 19 I&N Dec. 674 (BIA 1988), followed. |
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(1) The applicant's motion
to reopen exclusion proceedings is denied where prima facie (2) The situation faced
by the Marielitos who attempted to leave Cuba is not materially (3) The Cuban Government's diplomatic assurances of "no reprisals," while not determinative, are meaningful evidence in the evaluation of an applicant's asylum claim. (4) The Board of Immigration Appeals adopts the official position of the Department of State to the effect that the Cuban Government's actions are consistent with its diplomatic assurances that distinctions in treatment of Marielitos are based on an individual returnee's criminal activities in the United States and not on a returnee's participation in the boatlift or on his exclusion from the United States. (5) The repatriation agreement entered into between the United States and Cuba has significant evidentiary weight where it represents formal, well-publicized diplomatic assurances by the Government of Cuba; where that government is aware of the impact on international opinion of failure to honor its obligations; and where there is no meaningful evidence of Cuban noncompliance with this agreement first entered into in 1984. |
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(1) An immigrant alien
who entered the United States prior to January 1, 1982, is eligible for (2) An immigrant alien who has been found deportable by an immigration judge on the grounds that his initial entry prior to January 1, 1982, was obtained by fraud, and who has been residing in the United States since such date, is an alien who has been residing in the United States in an unlawful status within the purview of section 245A(a)(2)(A) of the Act. (3) An immigrant alien who entered the United States by fraud prior to January 1, 1982, must file an application for waiver of grounds of excludability in order to be eligible for temporary resident status under section 245A of the Act. |
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A respondent in deportation proceedings who was excludable under both sections 212(a)(17) and (20) of the Immigration and Nationality Act, 8 U.S.C. §§ 1182(a)(17) and (20) (1982), cannot establish combined eligibility for nunc pro tunc permission to reapply for admission and a waiver of inadmissibility pursuant to section 241(f) of the Act, 8 U.S.C. § 1251(f) (1982), where she is not separately eligible for either form of relief. |
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(1) A conviction exists pursuant to section 245A(a)(4)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1255a(a)(4)(B) (Supp. IV 1986), where (1) a judge or a jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere, and (2) the judge has ordered some form of punishment or penalty, including but not limited to a fine or probation. (2) An alien who pled
guilty to a felony and, as a result, was fined $1,000 and placed on |
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(1) An applicant for
temporary resident status under section 245A of the Immigration and (2) In determining whether an alien is likely to become a public charge under section 212(a)(15) of the Act, 8 U.S.C. § 1182(a)(15) (1982), the Service will consider the totality of the circumstances. (3) A 33-year-old mother of three children, who is currently employed and is physically able to earn a living, is not likely to become a public charge, notwithstanding the fact that her family received public cash assistance for approximately 4 years. |
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(1) The Legalization Appeals Unit will sua sponte reopen or reconsider a decision under section 245A of the Immigration and Nationality Act, 8 U.S.C. § 1255a (Supp. IV 1986), when it determines that manifest injustice would occur if the prior decision were permitted to stand. (2) A nonimmigrant exchange visitor is eligible for temporary resident status under section 245A of the Act if he establishes that he was not subject to the 2-year foreign residence requirement of section 212(e) of the Act, 8 U.S.C. § 1182(e) (1982), he fulfilled that requirement, or he received a waiver thereof. (3) A finding that an applicant is subject to the 2-year foreign residence requirement of section 212(e) of the Act must be supported by the record because not all exchange visitors are subject to this requirement. |
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(1) Although the Immigration and Naturalization Service's burden is materially lessened when it submits evidence that an alien has been convicted of bringing other aliens into the United States in violation of section 274(a) of the Immigration and Nationality Act, 8 U.S.C. § 1324(a) (1988), the Service must still establish by clear, unequivocal, and convincing evidence that such an alien acted "for gain" in order to sustain a charge of deportability under section 241(a)(13) of the Act, 8 U.S.C. § 1251(a)(13) (1988). (2) An inference may not be drawn to prove the "for gain" requirement in section 241(a)(13) of the Act and therefore, in the absence of clear evidence that the alien received remuneration in excess of his expenses or that he anticipated "gain" in exchange for his role in an alien-smuggling conspiracy, deportability is not established. (3) The offense underlying
a conviction under section 274(a) of the Act does not involve the |
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(1) In visa petition appeals involving section 204(a)(2)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1154(a)(2)(A) (Supp. IV 1986), the Board will not review the issue of the bona fides of the petitioner's prior marriage if 5 years have elapsed since the petitioner obtained her lawful permanent residence. (2) Where the visa petition was initially approvable subject to the petitioner's meeting a burden which has lapsed with the passage of time, the majority finds the rationale expressed in Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), not applicable. Matter of Atembe, 19 I&N Dec. 427 (BIA 1986); and Matter of Drigo, 18 I&N Dec. 223 (BIA 1982), distinguished.
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