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Volume 23


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

ID 3540 (PDF)

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

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


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

ID 3539 (PDF)

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


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

ID 3538 (PDF)

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

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


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

ID 3537 (PDF)

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

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


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

ID 3536 (PDF)

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

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


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

ID 3535 (PDF)

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

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

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


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

ID 3534 (PDF)

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

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

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


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

ID 3533 (PDF)

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

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


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

ID 3532 (PDF)

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


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

ID 3531 (PDF)

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

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


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

ID 3530 (PDF)

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


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

ID 3529 (PDF)

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


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

ID 3528 (PDF)

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


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

ID 3527 (PDF)

An application for adjustment of status cannot be based on an approved visa petition that has already been used by the beneficiary to obtain adjustment of status or admission as an immigrant.


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

ID 3526 (PDF)

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

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


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

ID 3525 (PDF)

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


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

ID 3524 (PDF)

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

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


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

ID 3523 (PDF)

A victim of sexual abuse who is under the age of 18 is a “minor” for purposes of determining whether an alien has been convicted of sexual abuse of a minor within the meaning of section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2000).


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

ID 3522 (PDF)

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


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

ID 3521 (PDF)

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

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

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

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


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

ID 3520 (PDF)

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

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


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

ID 3519 (PDF)

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


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

ID 3518 (PDF)

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


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

ID 3517 (PDF)

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

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


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

ID 3516 (PDF)

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

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


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

ID 3515 (PDF)

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

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

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

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

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


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

ID 3514 (PDF)

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

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


SHANU, 23 I&N Dec. 754 (BIA 2005)

ID 3513 (PDF)

(1) The phrase “date of admission” in section 237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2000), refers to, among other things, the date on which a previously admitted alien is lawfully admitted for permanent residence by means of adjustment of status.

(2) An alien convicted of a single crime involving moral turpitude that is punishable by a term of imprisonment of at least 1 year is removable from the United States under section 237(a)(2)(A)(i) of the Act if the crime was committed within 5 years after the date of any admission made by the alien, whether it be the first or any subsequent admission.


LOVO, 23 I&N Dec. 746 (BIA 2005)

ID 3512 (PDF)

(1) The Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996), does not preclude, for purposes of Federal law, recognition of a marriage involving a postoperative transsexual, where the marriage is considered by the State in which it was performed as one between two individuals of the opposite sex.

(2) A marriage between a postoperative transsexual and a person of the opposite sex may be the basis for benefits under section 201(b)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1151(b)(2)(A)(i) (2000), where the State in which the marriage occurred recognizes the change in sex of the postoperative transsexual and considers the marriage a valid heterosexual marriage.


A-M-, 23 I&N Dec. 737 (BIA 2005)

ID 3511 (PDF)

(1) Absent specific reasons for reducing the period of voluntary departure initially granted by the Immigration Judge at the conclusion of removal proceedings, the Board of Immigration Appeals will reinstate the same period of time for voluntary departure afforded to the alien by the Immigration Judge. Matter of Chouliaris, 16 I&N Dec. 168 (BIA 1977), modified.

(2) The respondent, whose asylum application was not filed within a year of his arrival in the United States, failed to demonstrate his eligibility for an exception to the filing deadline or for any other relief based on his claim of persecution in Indonesia, but the 60-day period of voluntary departure granted to him by the Immigration Judge was reinstated.


X-K-, 23 I&N Dec. 731 (BIA 2005)

ID 3510 (PDF)

An alien who is initially screened for expedited removal under section 235(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b)(1)(A) (2000), as a member of the class of aliens designated pursuant to the authority in section 235(b)(1)(A)(iii), but who is subsequently placed in removal proceedings under section 240 of the Act, 8 U.S.C. § 1229a 2000), following a positive credible fear determination, is eligible for a custody redetermination hearing before an Immigration Judge unless the alien is a member of any of the listed classes of aliens who are specifically excluded from the custody jurisdiction of Immigration Judges pursuant to 8 C.F.R. § 1003.19(h)(2)(i) (2004).


BLAKE, 23 I&N Dec. 722 (BIA 2005)

ID 3509 (PDF)

An alien who is removable on the basis of his conviction for sexual abuse of a minor is ineligible for a waiver under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), because the aggravated felony ground of removal with which he was charged has no statutory counterpart in the grounds of inadmissibility under section 212(a) of the Act, 8 U.S.C. § 1182(a) (2000). Matter of Meza, 20 I&N Dec. 257 (BIA 1991), distinguished.


LUVIANO, 23 I&N Dec. 718 (A.G. 2005)

ID 3508 (PDF)

An alien whose firearms conviction was expunged pursuant to section 1203.4 of the California Penal Code has been “convicted” for immigration purposes. Matter of Marroquin, 23 I&N Dec. 705 (A.G. 2005), followed.


MARROQUIN, 23 I&N Dec. 705 (A.G. 2005)

ID 3507 (PDF)

(1) The federal definition of “conviction” at section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2000), encompasses convictions, other than those involving first-time simple possession of narcotics, that have been vacated or set aside pursuant to an expungement statute for reasons that do not go to the legal propriety of the original judgment, and that continue to impose some restraints or penalties upon the defendant’s liberty.

(2) An alien whose firearms conviction was expunged pursuant to section 1203.4 of the California Penal Code has been “convicted” for immigration purposes.


E-L-H-, 23 I&N Dec. 700 (A.G. 2004)

ID 3506 (PDF)

The Attorney General remanded the case for reconsideration, in light of Matter of A-H-, A.G. Order No. 2380-2001 (Jan. 19, 2001), whether a decision of the Board of Immigration Appeals is final and effective while it is pending review before the Attorney General on certification.


AZURIN; 23 I&N Dec. 695 (BIA 2005)

ID 3505 (PDF)

An alien who, prior to the 1996 amendments made to former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), pled guilty to an offense that rendered him inadmissible as an alien convicted of a crime involving moral turpitude, as well as removable based on his conviction for an aggravated felony and a firearms offense, may seek a waiver of his inadmissibility under section 212(c) in conjunction with an application for adjustment of status, despite regulatory changes relating to the availability of section 212(c) relief. Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993), reaffirmed.


R-A-, 23 I&N Dec. 694 (A.G. 2005)

ID 3504 (PDF)

The Attorney General remanded the record to the BIA for reconsideration of its decision in Matter of R-A-, 22 I&N Dec. 906 (A.G. 2001; BIA 1999), following final publication of the proposed rule published at 65 Fed. Reg. 76,588 (Dec. 7, 2000).


C-Y-Z-, 23 I&N Dec. 693 (A.G. 2004)

ID 3503 (PDF)

The Attorney General denied the request of the Commissioner of the Immigration and Naturalization Service to certify for review the decision of the Board of Immigration Appeals.


ESLAMIZAR, 23 I&N Dec. 684 (BIA 2004)

ID 3502 (PDF)

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


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

ID 3501 (PDF)

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

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


CISNEROS-GONZALEZ, 23 I&N Dec. 668

ID 3500 (PDF)

(1) Pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1) (2000), an alien’s period of continuous physical presence in the United States is deemed to end when the alien is served with the charging document that is the basis for the current proceeding.

(2) Service of a charging document in a prior proceeding does not serve to end the alien’s period of continuous physical presence with respect to an application for cancellation ofremoval filed in the current proceeding. Matter of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000), distinguished.


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

ID 3499 (PDF)

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

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


MALTA, 23 I & N Dec. 23 I&N Dec. 656 (BIA 2004)

ID 3498 (PDF)

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


VARGAS, 23 I&N Dec. 651 (BIA 2004)

ID 3497 (PDF)

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


GADDA, 23 I&N Dec. 645 (BIA 2003)

ID 3496 (PDF)

(1) An attorney who practices immigration law in proceedings before the Board of Immigration Appeals, the Immigration Courts, and the Department of Homeland Security must be a member in good standing of a State bar and is therefore subject to discipline by State bar authorities.

(2) The Board of Immigration Appeals has authority to increase the level of disciplinary sanction initially imposed by an adjudicating official against an attorney.

(3) Where the respondent was disbarred by the Supreme Court of California based on his egregious and repeated acts of professional misconduct over a number of years, expulsion from practice before the Board of Immigration Appeals, the Immigration Courts, and the Department of Homeland Security is an appropriate sanction.


R-S-H-, 23 I & N 629 (BIA 2003)

ID 3495 (PDF)

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

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

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

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


SUH, 23 I & N 626 (BIA 2003)

ID 3494 (PDF)

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

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


PICKERING, 23 I&N Dec. 621 (BIA 2003)

ID 3493 (PDF)

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

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


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

ID 3492 (PDF)

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


DEANDRA-ROMO, 23 I&N Dec. 597 (BIA 2003)

ID 3491 (PDF)

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


GARCIA-HERNANDEZ, 23 I&N Dec. 590 (BIA 2003)

ID 3490 (PDF)

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

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

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

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


NAVAS-ACOSTA, 23 I&N Dec. 586

ID 3489 (PDF)

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

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


D-J-, 23 I&N Dec. 572 (A.G. 2003)

ID 3488 (PDF)

(1) The Attorney General has broad discretion in bond proceedings under section 236(a) of the Immigration and Nationality Act, 8 U.S.C. ß 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 alienís 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 respondentís release on bond does not violate international law.

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


AASAD, 23 I&N Dec. 553 (BIA 2003)

ID 3487 (PDF)

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

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


KOLOAMATANGI, 23 I&N Dec. 548 (BIA 2003)

ID 3486 (PDF)

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


M-D-, 23 I&N Dec. 540 (BIA 2002)

ID 3485 (PDF)

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

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


MEJIA-ANDINO, 23 I&N Dec. 533 (BIA 2002)

ID 3484 (PDF)

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


GOMEZ-GOMEZ, 23 I&N Dec. 522 (BIA 2002)

ID 3483 (PDF)

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

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


ELGENDI, 23 I&N Dec. 515 (BIA 2002)

ID 3482 (PDF)

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


MARTIN, 23 I&N Dec. 491 (BIA 2002) (Reposted due to editorial change)

ID 3481 (PDF)

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


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

ID 3480 (PDF)

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


RECINAS, 23 I&N Dec. 467 (BIA 2002)

ID 3479 (PDF)

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

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


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

ID 3478 (PDF)

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


BLANCAS, 23 I&N Dec. 458 (BIA 2002)

ID 3477 (PDF)

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


SMALL, 23 I&N Dec. 448 (BIA 2002)

ID 3476 (PDF)

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


ROMALEZ, 23 I&N Dec. 423 (BIA 2002)

ID 3475 (PDF)

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


SANTOS-LOPEZ ,23 I&N Dec. 419 (BIA 2002)

ID 3474 (PDF)

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

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


YANEZ, 23 I&N Dec. 390 (BIA 2002)

ID 3473 (PDF)

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


JEAN, 23 I&N Dec. 373 (A.G. 2002)

ID 3472 (PDF)

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

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

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

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

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


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

ID 3471 (PDF)

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


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

ID 3470 (PDF)

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


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

ID 3469 (PDF)

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


RAMOS, 23 I&N Dec. 336 (BIA 2002)

ID 3468 (PDF)

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

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


ANDAZOLA, 23 I&N Dec. 319 (BIA 2002)

ID 3467 (PDF)

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

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


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

ID 3466 (PDF)

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

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

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

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

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

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

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


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

ID 3465 (PDF)

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


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

ID 3464 (PDF)

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

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


VELARDE, 23 I&N Dec. 253 (BIA 2002)

ID 3463 (PDF)

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


SALAZAR, 23 I&N Dec. 223 (BIA 2002)

ID 3462 (PDF)

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

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

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


VASQUEZ-MUNIZ, 23 I&N Dec. 207 (BIA 2002)

ID 3461 (PDF)

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

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


SOTELO, 23 I&N Dec. 201 (BIA 2001)

ID 3460 (PDF)

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


MORAGA, 23 I&N Dec. 195 (BIA 2001)

ID 3459 (PDF)

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


G-Y-R-, 23 I&N Dec. 181 (BIA 2001)

ID 3458 (PDF)

(1) When an alien fails to appear at removal proceedings for which notice of the hearing was served by mail, an in absentia order may only be entered where the alien has received, or can be charged with receiving, a Notice to Appear (Form I-862) informing the alien of the statutory address obligations associated with removal proceedings and of the consequences of failing to provide a current address, pursuant to section 239(a)(1)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a)(1)(F) (Supp. V 1999).

(2) Entry of an in absentia order of removal is inappropriate where the record reflects that the alien did not receive, or could not be charged with receiving, the Notice to Appear that was served by certified mail at an address obtained from documents filed with the Immigration and Naturalization Service several years earlier.


CRAMMOND, 23 I&N Dec. 179 (BIA 2001)

ID 3457 (PDF)

(1) The Board of Immigration Appeals lacks jurisdiction over a motion to reopen where the motion is withdrawn, within the meaning of 8 C.F.R. § 3.2(d) (2001), by the departure of the alien from the United States prior to a ruling on the motion.

(2) When the Board is presented with evidence that it has granted a motion to reopen after the alien's departure from the United States, it is appropriate to reconsider and vacate the prior order on jurisdictional grounds. Matter of Crammond, 23 I&N Dec. 9 (BIA 2001), vacated.


MARTINEZ-RECINOS, 23 I&N Dec. 175 (BIA 2001)

ID 3456 (PDF)

A conviction for perjury in violation of section 118(a) of the California Penal Code constitutes a conviction for an aggravated felony under section 101(a)(43)(S) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(S) (Supp. V 1999).


SONG, 23 I&N Dec. 173 (BIA 2001)

ID 3455 (PDF)

Where a criminal court vacated the 1-year prison sentence of an alien convicted of a theft offense and revised the sentence to 360 days of imprisonment, the alien does not have a conviction for an aggravated felony within the meaning of section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (Supp. V 1999).


RODRIGUEZ-TEJEDOR, 23 I&N Dec. 153 (BIA 2001)

ID 3454 (PDF)

(1) The automatic citizenship provisions of section 320 of the Immigration and Nationality Act, 8 U.S.C. § 1431 (1994), as amended by the Child Citizenship Act of 2000, Pub. L. No. 106-395, 114 Stat. 1631 (“CCA”), are not retroactive and, consequently, do not apply to an individual who resided in the United States with his United States citizen parents as a lawful permanent resident while under the age of 18 years, but who was over the age of 18 years on the CCA effective date.

(2) The respondent, who resided in the United States with his United States citizen adoptive parents as a lawful permanent resident while under the age of 18 years, but who was over the age of 18 years on the CCA effective date, is ineligible for automatic citizenship under section 320 of the Act.


OLIVARES, 23 I&N Dec. 148 (BIA 2001)

ID 3453 (PDF)

Under United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001), and United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2001), a Texas conviction for felony DWI is not classifiable as a crime of violence conviction under 18 U.S.C. § 16(b) (1994) for purposes of removability in cases arising in the United States Court of Appeals for the Fifth Circuit; accordingly, in cases arising in the Fifth Circuit, Matter of Puente, Interim Decision 3412 (BIA 1999), will not be applied.


FINNAIR FLIGHT AY103, 23 I&N Dec. 140 (BIA 2001)

ID 3452 (PDF)

A carrier is subject to a fine under section 273(a) of the Immigration and Nationality Act, 8 U.S.C. § 1323(a) (1994), for bringing an alien passenger to the United States without a valid nonimmigrant visa even though the passenger was subsequently granted a waiver of the nonimmigrant documentary requirements pursuant to 8 C.F.R. § 212.1(g) (1997).


ROJAS, 23 I&N Dec. 117 (BIA 2001)

ID 3451 (PDF)

A criminal alien who is released from criminal custody after the expiration of the Transition Period Custody Rules is subject to mandatory detention pursuant to section 236(c) of the Immigration and Nationality Act, 8 U.S.C. § 1226(c) (Supp. V 1999), even if the alien is not immediately taken into custody by the Immigration and Naturalization Service when released from incarceration.


ARTIGAS, 23 I&N Dec. 99 (BIA 2001)

ID 3450 (PDF)

An Immigration Judge has jurisdiction to adjudicate an application for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended, when the respondent is charged as an arriving alien without a valid visa or entry document in removal proceedings.


TORRES-VARELA, 23 I&N Dec. 78 (BIA 2001)

ID 3449 (PDF)

Under Arizona law, the offense of aggravated driving under the influence (“DUI”) with two or more prior DUI convictions is not a crime involving moral turpitude. Matter of Lopez-Meza, Interim Decision 3423 (BIA 1999), distinguished.


PATINO, 23 I&N Dec. 74 (BIA 2001)

ID 3448 (PDF)

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


MONREAL, 23 I&N Dec. 56 (BIA 2001)

ID 3447 (PDF)

(1) To establish "exceptional and extremely unusual hardship," an applicant for cancellation of removal under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (Supp. V 1999), must demonstrate that his or her spouse, parent, or child would suffer hardship that is substantially beyond that which would ordinarily be expected to result from the alien's deportation, but need not show that such hardship would be "unconscionable."

(2) Although many of the factors that were considered in assessing "extreme hardship" for suspension of deportation should also be considered in evaluating "exceptional and extremely unusual hardship," an applicant for cancellation of removal must demonstrate hardship beyond that which has historically been required in suspension of deportation cases involving the "extreme hardship" standard.

(3) In establishing eligibility for cancellation of removal, only hardship to qualifying relatives, not to the applicant himself or herself, may be considered, and hardship factors relating to the applicant may be considered only insofar as they might affect the hardship to a qualifying relative.


KAO AND LIN, 23 I&N Dec. 45 (BIA 2001)

ID 3446 (PDF)

(1) In evaluating an application for suspension of deportation, the hardship to the applicant's United States citizen child must be given careful consideration, as the applicant's eligibility for relief may be established by demonstrating that his or her deportation would result in extreme hardship to the child.

(2) The standard for determining "extreme hardship" in applications for suspension of deportation is also applied in adjudicating petitions for immigrant status under section 204(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1154(a)(1) (1994 & Supp. V 1999), as amended, and waivers of inadmissibility under section 212(i) of the Act, 8 U.S.C. § 1182(i) (Supp. V 1999).

(3) The respondents met the extreme hardship requirement for suspension of deportation where their oldest daughter, who is a 15-year-old United States citizen, has spent her entire life in the United States, has been completely integrated into the American lifestyle, and is not sufficiently fluent in the Chinese language to make an adequate transition to daily life in her parents' native country of Taiwan. Matter of Pilch, 21 I&N Dec. 627 (BIA 1996), distinguished.


HERRERA, 23 I&N Dec. 43 (BIA 2001)

ID 3445 (PDF)

Respondent’s motion for a stay of deportation, pending consideration of his simultaneously filed motion to reopen and reconsider, is granted in light of the decision of the United States Court of Appeals for the Fifth Circuit in United States v. Chapa-Garza, 2001 WL 209468(5th Cir. 2001), which held that a conviction for driving while intoxicated in violation of section 49.09 of the Texas Penal Code is not a conviction for a crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (Supp. V 1999).


NORTHWEST AIRLINES FLIGHT NW1821, 23 I&N Dec. 38 (BIA 2001)

ID 3444 (PDF)

A carrier is subject to fine under section 231(b) of the Immigration and Nationality Act, 8 U.S.C. § 1221(b) (Supp. IV 1998), when it fails to file a properly completed Form I-94T (Arrival-Departure Record (Transit Without Visa)) for an alien who is a transit without visa passenger not departing directly on the same flight.


CRAMMOND, 23 I&N Dec. 9 (BIA 2001), vacated, 23 I&N Dec. 179

ID 3443 (PDF)

(1) A conviction for "murder, rape, or sexual abuse of a minor" must be for a felony offense in order for the crime to be considered an aggravated felony under section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (Supp. V 1999).

(2) In determining whether a state conviction is for a felony offense for immigration purposes, the Board of Immigration Appeals applies the federal definition of a felony set forth at 18 U.S.C. § 3559(a)(5) (1994).


GOOLCHARAN, 23 I&N Dec. 5 (BIA 2001)

ID 3442 (PDF)

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


OPARAH, 23 I&N Dec. 1 (BIA 2000)

ID 3441 (PDF)

A motion to remand submitted during the pendency of an appeal from an Immigration Judge's denial of an untimely motion to reopen and filed after the entry of a final administrative decision does not cure the untimeliness of the initial motion to reopen, nor is it excepted from the numerical restriction that permits the filing of only one motion to reopen.