Headnotes

ESLAMIZAR, ID 3502

An alien found guilty of a “violation” under Oregon law in a proceeding conducted pursuant to section 153.076 of the Oregon Revised Statutes does not have a “conviction” for
immigration purposes under section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2000).

L-K-, ID 3501

(1) Under section 245(c)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1255(c)(2) (2000), an alien who has failed to continuously maintain a lawful status since entry into the United States, other than through no fault of his own or for technical reasons, is ineligible for adjustment of status under section 245(a) of the Act.

(2) A failure to maintain lawful status is not “for technical reasons” within the meaning of section 245(c)(2) of the Act and the applicable regulations at 8 C.F.R. § 1245.1(d)(2)(ii) (2004), where the alien filed an asylum application while in lawful nonimmigrant status, the nonimmigrant status subsequently expired, and the asylum application was referred to the Immigration Court prior to the time the alien applied for adjustment of status.

CISNEROS-Gonzalez, ID 3500

(1) Pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1) (2000), an alien’s period of continuous physical presence in the United
States is deemed to end when the alien is served with the charging document that is the basis for the current proceeding.
(2) Service of a charging document in a prior proceeding does not serve to end the alien’s period of continuous physical presence with respect to an application for cancellation of
removal filed in the current proceeding. Matter of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000), distinguished.

K-A-, ID 3499

(1) Pursuant to 8 C.F.R. § 1209.2(c) (2004), once an asylee has been placed in removal proceedings, the Immigration Judge and the Board of Immigration Appeals have exclusive jurisdiction to adjudicate the asylee’s applications for adjustment of status and a waiver of inadmissibility under sections 209(b) and (c) of the Immigration and Nationality Act, 8 U.S.C. §§ 1159(b) and (c) (2000). Matter of H-N-, 22 I&N Dec. 1039 (BIA 1999),
distinguished.

(2) Termination of a grant of asylum pursuant to section 208(c)(2) of the Act, 8 U.S.C. § 1158(c)(2) (2000), is not mandatory with respect to an asylee who qualifies for and merits adjustment of status and a waiver of inadmissibility under sections 209(b) and (c) of the Act.

MALTA, ID 3498

A stalking offense for harassing conduct in violation of section 646.9(b) of the California Penal Code, which proscribes stalking when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the stalking behavior, is a crime of violence under 18 U.S.C. § 16(b) (2000), and is therefore an aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2000).

VARGAS, ID 3497

The offense of manslaughter in the first degree in violation of section 125.20 of the New York Penal Law is a crime of violence under 18 U.S.C. § 18(b) (2000) and is therefore an aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2000).

GADDA, ID 3496

(1) An attorney who practices immigration law in proceedings before the Board of Immigration Appeals, the Immigration Courts, and the Department of Homeland Security must be a member in good standing of a State bar and is therefore subject to discipline by State bar authorities.
(2) The Board of Immigration Appeals has authority to increase the level of disciplinary sanction initially imposed by an adjudicating official against an attorney.
(3) Where the respondent was disbarred by the Supreme Court of California based on his egregious and repeated acts of professional misconduct over a number of years, expulsion from practice before the Board of Immigration Appeals, the Immigration Courts, and the Department of Homeland Security is an appropriate sanction.

R-S-H-, ID 3495

(1) Under 8 C.F.R. § 1003.46(i) (formerly 8 C.F.R. § 3.46(i)), the mandatory consequence for violating a protective order is that the respondent becomes ineligible for any form of discretionary relief, except for bond.

(2) The mandatory consequence for breaching a protective order will be applied unless a respondent fully cooperates with the Government in any investigation relating to the noncompliance and, additionally, establishes by clear and convincing evidence either that extraordinary and extremely unusual circumstances exist or that failure to comply with the protective order was beyond the control of the respondent and his or her attorney or
accredited representative.

(3) The presence of federal employees, including court personnel or Department of Justice attorneys, at a closed hearing where a protective order is discussed does not violate the protective order regulations.

(4) The respondent is ineligible for any form of discretionary relief, except for bond, because a protective order issued by the Immigration Judge was violated by disclosure of protected information to unauthorized persons.

SUH, ID 3494

(1) A presidential or gubernatorial pardon waives only the grounds of removal specifically set forth in section 237(a)(2)(A)(v) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(v) (2000), and no implicit waivers may be read into the statute.

(2) The respondent’s pardon did not waive his removability as an alien convicted of a crime of domestic violence or child abuse under section 237(a)(2)(E)(i) of the Act, because that section is not specifically included in section 237(a)(2)(A)(v).

PICKERING, ID 3493

(1) If a court vacates an alien’s conviction for reasons solely related to rehabilitation or immigration hardships, rather than on the basis of a procedural or substantive defect in the underlying criminal proceedings, the conviction is not eliminated for immigration purposes.

(2) Where the record indicated that the respondent’s conviction for possession of a controlled substance was quashed by a Canadian court for the sole purpose of avoiding the bar to his acquisition of permanent residence, the court’s action was not effective to eliminate the conviction for immigration purposes.

In re Y-T-L-, ID 3492

Where an alien has established past persecution based on the forced sterilization of his spouse pursuant to a policy of coercive family planning, the fact that, owing to such sterilization, the alien and his spouse face no further threat of forced sterilization or abortion does not constitute a “fundamental change” in circumstances sufficient to meet the standards for a discretionary denial under 8 C.F.R. § 1208.13(b)(1)(i)(A).

DEANDA-ROMO, ID 3491

The respondent, who was convicted of two misdemeanor crimes involving moral turpitude, is not precluded by the provisions of section 240A(d)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1)(B) (2000), from establishing the requisite 7 years of continuous residence for cancellation of removal under section 240A(a)(2), because his first crime, whichm qualifies as a petty offense, did not render him inadmissible, and he had accrued the requisite 7 years of continuous residence before the second offense was committed.

GARCIA-HERNANDEZ ID 3490

(1) An alien who has been convicted of a crime involving moral turpitude that falls within the “petty offense” exception in section 212(a)(2)(A)(ii)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (1994), is not ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C) (Supp. IV 1998), because he “has not been convicted of an offense under section 212(a)(2)” of the Act.

(2) An alien who has committed a crime involving moral turpitude that falls within the “petty offense” exception is not ineligible for cancellation of removal under section 240A(b)(1)(B) of the Act, because commission of a petty offense does not bar the offender from establishing good moral character under section 101(f)(3) of the Act, 8 U.S.C. § 1101(f)(3) (Supp. IV 1998).

(3) An alien who has committed more than one petty offense is not ineligible for the “petty offense” exception if “only one crime” is a crime involving moral turpitude.

(4) The respondent, who was convicted of a crime involving moral turpitude that qualifies as a petty offense, was not rendered ineligible for cancellation of removal under section 240A(b)(1) of Act by either his conviction or his commission of another offense that is not a crime involving moral turpitude.

NAVAS-ACOSTA, ID #3489

(1) United States nationality cannot be acquired by taking an oath of allegiance pursuant to an application for naturalization, because birth and naturalization are the only means of acquiring United States nationality under the Immigration and Nationality Act.

(2) The respondent, who was born abroad and did not acquire United States nationality at birth, by naturalization, or by congressional action, failed to establish such nationality by declaring his allegiance to the United States in connection with an application for naturalization.

D-J-, ID# 3488

(1) The Attorney General has broad discretion in bond proceedings under section 236(a) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a) (2000), to determine whether to release an alien on bond.

(2) Neither section 236(a) of the Act nor the applicable regulations confer on an alien the right to release on bond.

(3) In determining whether to release on bond undocumented migrants who arrive in the United States by sea seeking to evade inspection, it is appropriate to consider national security interests implicated by the encouragement of further unlawful mass migrations and the release of undocumented alien migrants into the United States without adequate screening.

(4) In bond proceedings involving aliens seeking to enter the United States illegally, where the Government offers evidence from sources in the Executive Branch with relevant expertise establishing that significant national security interests are implicated, Immigration Judges and the Board of Immigration Appeals shall consider such interests.

(5) Considering national security grounds applicable to a category of aliens in denying an unadmitted alien’s request for release on bond does not violate any due process right to an individualized determination in bond proceedings under section 236(a) of the Act.

(6) The denial of the respondent’s release on bond does not violate international law.

(7) Release of the respondent on bond is unwarranted due to considerations of sound immigration policy and national security that would be undercut by the release of the respondent and other similarly situated undocumented alien migrants who unlawfully crossed the borders of the United States on October 29, 2002; further, the respondent failed to demonstrate adequately that he does not present a risk of flight if released and should be denied bond on that basis as well.

Aasad, ID# 3487

(1) Case law of the United States Supreme Court holding, in the context of criminal proceedings, that there can be no deprivation of effective assistance of counsel where there is no constitutional right to counsel does not require withdrawal from Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff’d, 857 F.2d 10 (1st Cir. 1988), finding a right to assert a claim of ineffective assistance of counsel in immigration proceedings, where the United States Courts of Appeals have recognized that a respondent has a Fifth Amendment due process right to a fair immigration hearing, which may be denied if counsel prevents the respondent from meaningfully presenting his or her case.

(2) The respondent did not establish that his former counsel’s failure to file a timely appeal constituted sufficient prejudice to warrant consideration of his late appeal on the basis of ineffective assistance of counsel.

Koloamatangi, ID#3486

An alien who acquired permanent resident status through fraud or misrepresentation has never been “lawfully admitted for permanent residence” and is therefore ineligible for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2000).

M-D-, ID#3485

(1) An alien may be charged with receipt of a notice to appear and notice of the hearing date, where the notice is sent by certified mail to the alien’s correct address, but it is returned by the United States Postal Service marked “unclaimed.”

(2) The regulations at 8 C.F.R. § 3.13 (2002) do not require that the notice to appear or notice of hearing in removal proceedings be sent to the alien or the alien’s attorney of record by regular mail, as opposed to certified mail.

Mejia-Andino, ID#3484

Removal proceedings against a minor under 14 years of age were properly terminated because service of the notice to appear failed to meet the requirements of 8 C.F.R. § 103.5a(c)(2)(ii) (2002), as it was served only on a person identified as the respondent’s uncle, and no effort was made to serve the notice on the respondent’s parents, who apparently live in the United States.

Gomez-Gomez, ID#3483

(1) The Immigration and Naturalization Service met its burden, in an in absentia removal proceeding, of establishing a minor respondent’s removability by clear, unequivocal, and convincing evidence, where (1) a Record of Deportable/Inadmissible Alien (Form I-213) was submitted, documenting the respondent’s identity and alienage; (2) the respondent, who failed without good cause to appear at her removal hearing, made no challenge to the admissibility of the Form I-213; (3) there were no grounds for a finding that the admission of the Form I-213 would be fundamentally unfair; and (4) no independent evidence in the record supported the Immigration Judge’s conclusion that the respondent may not have been the child of the adult who claimed to be the respondent’s parent and who furnished the information regarding her foreign citizenship. Matter of Ponce-Hernandez, 22 I&N Dec. 784 (BIA 1999), followed.

(2) The respondent, a minor who could not be expected to attend immigration proceedings on her own, was properly notified of her hearing, through proper mailing of a Notice to Appear (Form I-862) to the last address provided by her parent, with whom she was residing.

Elgendi, ID#3482

In accordance with authoritative precedent of the United States Court of Appeals for the Second Circuit in United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir. 1999), and United States v. Polanco, 29 F.3d 35 (2d Cir. 1994), an individual who has been convicted twice of misdemeanor possession of marijuana in violation of New York State law has not been convicted of an aggravated felony under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000).

Martin , ID#3481

The offense of third-degree assault in violation of section 53a-61(a)(1) of the Connecticut General Statutes, which involves the intentional infliction of physical injury upon another, is a crime of violence under 18 U.S.C. § 16(a) (2000) and is therefore an aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2000).

M-B-A-, ID#3480

A Nigerian convicted of a drug offense in the United States failed to establish eligibility for deferral of removal under Article 3 of the Convention Against Torture because the evidence she presented regarding the enforcement of Decree No. 33 of the Nigerian National Drug Law Enforcement Agency against individuals similarly situated to her was insufficient to demonstrate that it is more likely than not that she will be tortured by a public official, or at the instigation or with the consent or acquiescence of such an official, if she is deported to Nigeria.

Recinas, ID#3479

(1) The respondent, a single mother who has no immediate family remaining in Mexico, provides the sole support for her six children, and has limited financial resources, established eligibility for cancellation of removal under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (2002), because she demonstrated that her United States citizen children, who are 12, 11, 8, and 5 years old, will suffer exceptional and extremely unusual hardship upon her removal to her native country.

(2) The factors considered in assessing the hardship to the respondent’s children include the heavy burden imposed on the respondent to provide the sole financial and familial support for her six children if she is deported to Mexico, the lack of any family in her native country, the children’s unfamiliarity with the Spanish language, and the unavailability of an alternative means of immigrating to this country.

S-H, ID#3478

Under new regulations that become effective on September 25, 2002, the Board of Immigration Appeals has limited fact-finding ability on appeal, which heightens the need for Immigration Judges to include in their decisions clear and complete findings of fact that are supported by the record and are in compliance with controlling law. Matter of Vilanova-Gonzalez, 13 I&N Dec. 399 (BIA 1969), and Matter of Becerra-Miranda, 12 I&N Dec. 358 (BIA 1967), superseded.

Blancas, ID#3477

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

Small, ID#3476

A misdemeanor offense of sexual abuse of a minor constitutes an aggravated felony under section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)((2000)

Romalez, ID#3475

For purposes of determining eligibility for cancellation of removal pursuant to section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (Supp. IV 1998), continuous physical presence is deemed to end at the time an alien is compelled to depart the United States under threat of the institution of deportation or removal proceedings.

Santos-Lopez, ID#3474

(1) Under the decisions of the United States Court of Appeals for the Fifth Circuit in United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir.), cert. denied, 122 S. Ct. 305 (2001), and United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997), a determination whether an offense is a “felony” for purposes of 18 U.S.C. § 924(c)(2) (2000) depends on the classification of the offense under the law of the convicting jurisdiction. Matter of Yanez, 23 I&N Dec. 390 (BIA 2002), followed.

(2) Each of the respondent’s two convictions for possession of marihuana is classified as a misdemeanor offense under Texas law; therefore, neither conviction is for a “felony” within the meaning of 18 U.S.C. § 924(c)(2) or an “aggravated felony” within the meaning of section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000).

Yanez, ID#3473

The determination whether a state drug offense constitutes a “drug trafficking crime” under 18 U.S.C. § 924(c)(2) (2000), such that it may be considered an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000), shall be made by reference to decisional authority from the federal circuit courts of appeals, and not by reference to any separate legal standard adopted by the Board of Immigration Appeals. Matter of K-V-D-, Interim Decision 3422 (BIA 1999), overruled. Matter of L-G-, 21 I&N Dec. 89 (BIA 1995), and Matter of Davis, 20 I&N Dec. 536 (BIA 1992), modified.

Jean, ID#3472

(1) The 30-day period set forth in 8 C.F.R. § 3.38(b) (2002) for filing an appeal to the Board of Immigration Appeals is mandatory and jurisdictional, and it begins to run upon the issuance of a final disposition in the case.

(2) The Board of Immigration Appeals’ authority under 8 C.F.R. § 3.1(c) (2002) to certifycases to itself in its discretion is limited to exceptional circumstances, and is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship.

(3) In evaluating the propriety of granting an otherwise inadmissible alien a discretionary waiver to permit adjustment of status from refugee to lawful permanent resident pursuant to section 209(c) of the Immigration and Nationality Act, 8 U.S.C. § 1159(c) (2000), any humanitarian, family unity preservation, or public interest considerations must be balanced against the seriousness of the criminal offense that rendered the alien inadmissible.

(4) Aliens who have committed violent or dangerous crimes will not be granted a discretionary waiver to permit adjustment of status from refugee to lawful permanent resident pursuant to section 209(c) of the Act except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely nusual hardship. Depending on the gravity of the alien’s underlying criminal offense, such a showing of exceptional and extremely unusual hardship might still be insufficient.

(5) Aliens who have committed violent or dangerous crimes will not be granted asylum, even if they are technically eligible for such relief, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship. Depending on the gravity of the alien’s underlying criminal offense, such a showing of exceptional and extremely unusual hardship might still be insufficient.

G-A-, ID#3471

An Iranian Christian of Armenian descent demonstrated eligibility for deferral of removal under Article 3 of the Convention Against Torture and 8 C.F.R. § 208.17(a) (2001) by establishing that it is more likely than not that he will be tortured if deported to Iran based on a combination of factors, including his religion, his ethnicity, the duration of his residence in the United States, and his drug-related convictions in this country.

G-C-L-, ID#3470

The Board of Immigration Appeals withdraws from its policy of granting untimely motions to reopen by applicants claiming eligibility for asylum based solely on coercive population control policies, effective 90 days from the date of this decision. Matter of X-G-W-, Interim Decision 3352 (BIA 1998), superseded.

U-H-, ID#3469

Section 412 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272, 351 (“USA PATRIOT ACT”), does not change the standard employed to determine, for purposes of adjudicating an application for asylum or withholding of removal, whether there is reasonable ground to believe that an alien is engaged in, or is likely to engage in, terrorist activity under section 212(a)(3)(B)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(3)(B)(i)(II) (2000), or whether there are reasonable grounds to believe that he or she is a danger to the security of the United States under section 241(b)(3)(B)(iv) of the Act, 8 U.S.C. § 1231(b)(3)(B)(iv) (2000).

Ramos, ID#3468

(1) In cases arising in circuits where the federal court of appeals has not decided whether the offense of driving under the influence is a crime of violence under 18 U.S.C. § 16(b) (2000), an offense will be considered a crime of violence if it is committed at least recklessly and involves a substantial risk that the perpetrator may resort to the use of force to carry out the crime; otherwise, where the circuit court has ruled on the issue, the law of the circuit will be applied to cases arising in that jurisdiction.

(2) The offense of operating a motor vehicle while under the influence of intoxicating liquor in violation of chapter 90, section 24(1)(a)(1) of the Massachusetts General Laws is not a felony that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense and is therefore not a crime of violence. Matter of Puente, Interim Decision 3412 (BIA 1999), and Matter of Magallanes, Interim Decision 3341 (BIA 1998), overruled.

Andazola, ID#3467

(1) The respondent, an unmarried mother, did not establish eligibility for cancellation of removal under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (2000), because she failed to demonstrate that her 6- and 11-year-old United States citizen children will suffer exceptional and extremely unusual hardship upon her removal to Mexico.

(2) The factors considered in assessing the hardship to the respondent’s children include the poor economic conditions and diminished educational opportunities in Mexico and the fact that the respondent is unmarried and has no family in that country to assist in their adjustment upon her return.

J-E-, ID#3466

(1) An alien seeking protection under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment must establish that it is more likely than not that he will be tortured in the country of removal.

(2) Torture within the meaning of the Convention Against Torture and 8 C.F.R. § 208.18(a) (2001) is an extreme form of cruel and inhuman treatment and does not extend to lesser forms of cruel, inhuman, or degrading treatment or punishment.

(3) For an act to constitute “torture” it must satisfy each of the following five elements in the definition of torture set forth at 8 C.F.R. § 208.18(a): (1) the act must cause severe physical or mental pain or suffering; (2) the act must be intentionally inflicted; (3) the act must be inflicted for a proscribed purpose; (4) the act must be inflicted by or at the instigation of or with the consent or acquiescence of a public official who has custody or physical control of the victim; and (5) the act cannot arise from lawful sanctions.

(4) According to 8 C.F.R. § 208.16(c)(3) (2001), in adjudicating a claim for protection under Article 3 of the Convention Against Torture, all evidence relevant to the possibility of future torture must be considered, including, but not limited to: (1) evidence of past torture inflicted upon the applicant; (2) evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured; (3) evidence of gross,
flagrant, or mass violations of human rights within the country of removal, where applicable; and (4) other relevant information regarding conditions in the country of removal.

(5) The indefinite detention of criminal deportees by Haitian authorities does not constitute torture within the meaning of 8 C.F.R. § 208.18(a) where there is no evidence that the authorities intentionally and deliberately detain deportees in order to inflict torture.

(6) Substandard prison conditions in Haiti do not constitute torture within the meaning of 8 C.F.R. § 208.18(a) where there is no evidence that the authorities intentionally create and maintain such conditions in order to inflict torture.

(7) Evidence of the occurrence in Haitian prisons of isolated instances of mistreatment that may rise to the level of torture as defined in the Convention Against Torture is insufficient to establish that it is more likely than not that the respondent will be tortured if returned to Haiti.

Y-C-, ID#3465

An unaccompanied minor who was in the custody of the Immigration and Naturalization Service pending removal proceedings during the 1-year period following his arrival in the United States established extraordinary circumstances that excused his failure to file an asylum application within 1 year after the date of his arrival.

(1) Aggravated felonies involving unlawful trafficking in controlled substances presumptively constitute “particularly serious crimes” within the meaning of section 241(b)(3)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)(B) (2000), and only under the most extenuating circumstances that are both extraordinary and compelling would departure from this interpretation be warranted or permissible. Matter of S-S-, Interim Decision 3374 (BIA 1999), overruled.

(2) The respondents are not eligible for deferral of removal under Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment where each failed to establish that the torture feared would be inflicted by or with the acquiescence of a public official or other person acting in an official capacity. Matter of S-V-, Interim Decision 3430 (BIA 2000), followed.

A properly filed motion to reopen for adjustment of status based on a marriage entered into after the commencement of proceedings may be granted in the exercise of discretion, notwithstanding the pendency of a visa petition filed on the alien’s behalf, where: (1) the motion to reopen is timely filed; (2) the motion is not numerically barred by the regulations; (3) the motion is not barred by Matter of Shaar, 21 I&N Dec. 541 (BIA 1996), or on any other procedural grounds;(4) clear and convincing evidence is presented indicating a strong likelihood that the marriage is bona fide; and (5) the Immigration and Naturalization Service does not oppose the motion or bases its opposition solely on Matter of Arthur, 20 I&N Dec. 475 (BIA 1992). Matter of H-A-, Interim Decision 3394 (BIA 1999), and Matter of Arthur, supra, modified.

(1) An alien whose adjudication of guilt was deferred pursuant to article 42.12, section 5(a) of the Texas Code of Criminal Procedure following her plea of guilty to possession of a controlled substance is considered to have been convicted of the offense. Matter of Roldan, Interim Decision 3377 (BIA 1999), reaffirmed.

(2) In Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), the United States Court of Appeals for the Ninth Circuit overruled in part Matter of Roldan, supra, which will not be applied in cases arising within the jurisdiction of the Ninth Circuit.

(3) In light of the decisions in United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2000), cert. denied, 122 S. Ct. 305 (2001), and United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997), the decision of the Board of Immigration Appeals in Matter of K-V-D-, Interim Decision 3422 (BIA 1999), will not be applied in cases arising within the jurisdiction of the Fifth Circuit.

(1) An offense defined by state or foreign law may be classified as an aggravated felony as an offense “described in” a federal statute enumerated in section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) (1994 & Supp. V 1999), even if it lacks the jurisdictional element of the federal statute.

(2) Possession of a firearm by a felon in violation of section 12021(a)(1) of the California Penal Code is an aggravated felony under section 101(a)(43)(E)(ii) of the Act because it is “described in” 18 U.S.C. § 922(g)(1) (1994). Matter of Vasquez-Muniz, Interim Decision 3440 (BIA 2000), overruled.

An applicant for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (Supp. V 1999), need not meet a threshold test requiring a showing of “unusual or outstanding equities” before a balancing of the favorable and adverse factors of record will be made to determine whether relief should be granted in the exercise of discretion. Matter of C-V-T-, Interim Decision 3342 (BIA 1998), clarified

A child born out of wedlock in El Salvador on or after December 16, 1965, is placed in the same legal position as one born in wedlock once the child’s paternity is established and therefore qualifies as a “legitimated” child under section 101(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(C) (1994). Matter of Ramirez, 16 I&N Dec. 222 (BIA 1977), modified.

Finnair Flight AY103, ID #3452

Rojas, ID #3451

Artigas, ID #3450

Torres-Varela, ID #3449

Patino, ID #3448

Monreal, ID #3447

Kao & Lin, ID #3446

Herrera, ID #3445

Northwest Airlines Flight NW 1821, ID #3444

Crammond, ID #3443

The regulatory deadline for filing a motion to reopen or motion to reconsider before the Immigration Judge is determined by the date on which the Immigration Judge entered a final administrative order, and the regulatory deadline is not affected by subsequent actions taken by the Immigration and Naturalization Service in the course of executing the Immigration Judge's order.