The United States Department of Justice Department of Justice Seal The United States Department of Justice
Search The Site
 
 
Virtual Law Library

Volume 24


GUZMAN-GOMEZ, 24 I&N Dec. 824 (BIA 2009)

ID 3642 (PDF)

(1) The terms “child” and “parent” defined at section 101(c) of the Immigration and Nationality Act, 8 U.S.C. § 1101(c) (2006), do not encompass stepchildren and stepparents.

(2) A person born outside the United States cannot derive United States citizenship under section 320(a) of the Act, 8 U.S.C. § 1431(a) (2006), by virtue of his or her relationship to a nonadoptive stepparent.


CARDENAS ABREU, 24 I&N Dec. 795 (BIA 2009)

ID 3641 (PDF)

A pending late-reinstated appeal of a criminal conviction, filed pursuant to section 460.30 of the New York Criminal Procedure Law, does not undermine the finality of the conviction for purposes of the immigration laws.


HASHMI, 24 I&N Dec. 785 (BIA 2009)

ID 3640 (PDF)

(1) An alien’s unopposed motion to continue ongoing removal proceedings to await the adjudication of a pending family-based visa petition should generally be granted if approval of the visa petition would render him prima facie eligible for adjustment of status. Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), followed.

(2) In determining whether good cause exists to continue such proceedings, a variety of factors may be considered, including, but not limited to: (1) the Department of Homeland Security’s response to the motion to continue; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of status; (4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and any other relevant procedural factors.


MARTINEZ-MONTALVO, 24 I&N Dec. 778 (BIA 2009)

ID 3639 (PDF)

Under 8 C.F.R. §§ 245.2(a)(1) and 1245.2(a)(1)(ii) (2008), Immigration Judges have no jurisdiction to adjudicate an application filed by an arriving alien seeking adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended, with the limited exception of an alien who has been placed in removal proceedings after returning to the United States pursuant to a grant of advance parole to pursue a previously filed application. Matter of Artigas, 23 I&N Dec. 99 (BIA 2001), superseded.


ALMANZA, 24 I&N Dec. 771 (BIA 2009)

ID 3638 (PDF)

(1) An alien whose application for relief from removal was filed after the May 11, 2005, effective date of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 231 (“REAL ID Act”), has the burden to prove that he satisfies the applicable eligibility requirements and merits a favorable exercise of discretion under section 240(c)(4)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(4)(A) (2006), and must provide corroborating evidence requested by the Immigration Judge pursuant to section 240(c)(4)(B), unless it cannot be reasonably obtained

(2) An alien whose application for cancellation of removal under section 240A(b)(1) of the Act, 8 U.S.C. § 1229b(b)(1) (2006), is governed by the provisions of the REAL ID Act, and who has been convicted of an offense under a divisible criminal statute, has the burden to establish that the conviction was not pursuant to any part of the statute that reaches conduct involving moral turpitude, including the burden to produce corroborating conviction documents, such as a transcript of the criminal proceedings, as reasonably requested by the Immigration Judge. Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir. 2007), distinguished.

(3) An alien who has been convicted of a crime involving moral turpitude has been “convicted of an offense under” section 237(a)(2) of the Act, 8 U.S.C. § 1227(a)(2)(2006), and is therefore ineligible for cancellation of removal under section 240A(b)(1)(C), regardless of his status as an arriving alien or his eligibility for a petty offense exception under section 212(a)(2)(A)(ii)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (2006).


ZORILLA-VIDAL, 24 I&N Dec. 768 (BIA 2009)

ID 3637 (PDF)

Outside the jurisdiction of the United States Court of Appeals for the Ninth Circuit, a conviction for criminal solicitation under a State’s general purpose solicitation statute is a conviction for a violation of a law “relating to a controlled substance” under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2006), where the record of conviction reflects that the crime solicited is an offense relating to a controlled substance. Matter of Beltran, 20 I&N Dec. 521 (BIA 1992), reaffirmed. Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997), followed in jurisdiction only.


M-A-S-, 24 I&N Dec. 762 (BIA 2009)

ID 3636 (PDF)

An Immigration Judge may order an alien detained until departure as a condition of a grant of voluntary departure.


LOUISSAINT, 24 I&N Dec. 754 (BIA 2009)

ID 3635 (PDF)

(1) The categorical approach for determining if a particular crime involves moral turpitude set forth in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), requires the traditional categorical analysis, which was used by the United States Supreme Court in Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), and includes an inquiry into whether there is a “realistic probability” that the statute under which the alien was convicted would be applied to reach conduct that does not involve moral turpitude.

(2) A conviction for burglary of an occupied dwelling in violation of section 810.02(3)(a) of the Florida Statutes is categorically a conviction for a crime involving moral turpitude. Matter of M-, 2 I&N Dec. 721 (BIA; A.G. 1946), distinguished.


AGUILAR-AQUINO, 24 I&N Dec. 747 (BIA 2009)

ID 3634 (PDF)

(1) “Custody,” as the term is used in the regulation at 8 C.F.R. § 1236.1(d)(1) (2008) relatingto requests for amelioration of the terms of release from custody, requires actual physicalrestraint or confinement within a given space.

(2) The respondent, who requested “amelioration of the terms of release” from an Immigration Judge following his release from detention by the Department of HomelandSecurity with conditions requiring an electronic monitoring device and home confinement,was “released from custody” within the meaning of 8 C.F.R. § 1236.1(d)(1).

(3) The Immigration Judge lacked jurisdiction to consider the respondent’s request foramelioration of the terms of his release under 8 C.F.R. § 1236.1(d)(1) where therespondent had been “released from custody” more than 7 days prior to his request.


ROSENBERG, 24 I&N Dec. 744 (BIA 2009)

ID 3633 (PDF)

(1) A claim by an attorney who is currently suspended from practice before the United States Court of Appeals for the Ninth Circuit that he is in good standing before the California State Bar is not a basis to set aside an order of the Board of Immigration Appeals suspending him from practice before the Board, the Immigration Courts, and the Department of Homeland Security.

(2) It is not in the interest of justice to set aside the Board’s immediate suspension order where the attorney failed to object to the Ninth Circuit Appellate Commissioner’s Report and Recommendation and is therefore not likely to prevail on the merits of the attorney discipline case, given the heavy burden of proof under 8 C.F.R. § 1003.103(b)(2) (2008).


COMPEAN, BANGALY & J-E-C-, 24 I&N Dec. 710 (A.G. 2009), vacated, 25 I&N Dec. 1 (A.G. 2009)

ID 3632 (PDF)

(1) Aliens in removal proceedings have a statutory privilege to retain private counsel at no expense to the Government.

(2) Aliens in removal proceedings have no right to counsel, including Government-appointed counsel, under the Sixth Amendment of the Constitution because the Sixth Amendment applies only to criminal proceedings and removal proceedings are civil in nature.

(3) Aliens in removal proceedings also have no right to counsel, including Government-appointed counsel, under the Fifth Amendment. Although the Fifth Amendment applies to removal proceedings, its guarantee of due process does not include a general right to counsel, or a specific right to effective assistance of counsel, and is violated only by state action, namely, action that can be legally attributed to the Government. Lawyers privately retained by aliens in removal proceedings are not state actors for due process purposes. Accordingly, there is no Fifth Amendment right to effective assistance of counsel in removal proceedings. To the extent the Board’s decisions in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), and Matter of Assaad, 23 I&N Dec. 553 (BIA 2003), are inconsistent with this conclusion, those decisions are overruled.

(4) Although the Constitution and the immigration laws do not entitle an alien in removal proceedings to relief for his lawyer’s mistakes, the Department of Justice may, as a matter of administrative grace, reopen removal proceedings where an alien shows that he was prejudiced by the actions of private counsel.

(5) There is a strong public interest in ensuring that a lawyer’s deficiencies do not affirmatively undermine the fairness and accuracy of removal proceedings. At the same time, there is a strong public interest in the expeditiousness and finality of removal proceedings. On balance, these interests justify allowing the Board to reopen removal proceedings in the extraordinary case where a lawyer’s deficient performance likely changed the outcome of an alien’s initial removal proceedings. In addition, they call for a set of standards and requirements that will allow the Board to resolve most claims expeditiously and on the basis of an alien’s motion to reopen and accompanying on counsel’s allegedly deficient performance is, in each case, committed to the discretion of the Board or the immigration judge.

(6) The deficient performance of counsel claim extends only to the conduct of a lawyer, an accredited representative, or a non-lawyer that the alien reasonably but erroneously believed to be a lawyer who was retained to represent the alien in the proceedings.

(7) An alien who seeks to reopen his removal proceedings based on deficient performance of counsel bears the burden of establishing (i) that his lawyer’s failings were egregious; (ii) that in cases where the alien moves to reopen beyond the applicable time limit, he exercised due diligence in discovering and seeking to cure his lawyer’s alleged deficient performance; and (iii) that he suffered prejudice from the lawyer’s errors, namely, that but for the deficient performance, it is more likely than not that the alien would have been entitled to the ultimate relief he was seeking.

(8) An alien who seeks to reopen his removal proceedings based on deficient performance of counsel must submit a detailed affidavit setting forth the facts that form the basis of the deficient performance of counsel claim. He also must attach to his motion five documents or sets of documents: (i) a copy of his agreement, if any, with the lawyer whose performance he alleges was deficient; (ii) a copy of a letter to his former lawyer specifying the lawyer’s deficient performance and a copy of the lawyer’s response, if any; (iii) a completed and signed complaint addressed to, but not necessarily filed with, the appropriate State bar or disciplinary authority; (iv) a copy of any document or evidence, or an affidavit summarizing any testimony, that the alien alleges the lawyer failed to submit previously; and (v) a statement by new counsel expressing a belief that the performance of former counsel fell below minimal standards of professional competence. If any of these documents is unavailable, the alien must explain why. If any of these documents is missing rather than nonexistent, the alien must summarize the document’s contents in his affidavit. Matter of Lozada, superseded.

(9) The Board’s discretion to reopen removal proceedings on the basis of a lawyer’s deficient performance is not limited to conduct that occurred during the agency proceedings. The Board may reopen on the basis of deficient performance that occurred subsequent to the entry of a final order of removal if the standards established for a deficient performance of counsel claim are satisfied.


SILVA-TREVINO, 24 I&N Dec. 687 (A.G. 2008)

ID 3631 (PDF)

(1) To determine whether a conviction is for a crime involving moral turpitude, immigration judges and the Board of Immigration Appeals should: (1) look to the statute of conviction under the categorical inquiry and determine whether there is a “realistic probability” that the State or Federal criminal statute pursuant to which the alien was convicted would be applied to reach conduct that does not involve moral turpitude; (2) if the categorical inquiry does not resolve the question, engage in a modified categorical inquiry and examine the record of conviction, including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, and the plea transcript; and (3) if the record of conviction is inconclusive, consider any additional evidence deemed necessary or appropriate to resolve accurately the moral turpitude question.

(2) It is proper to make a categorical finding that a defendant’s conduct involves moral turpitude when that conduct results in conviction on the charge of intentional sexual contact with a person the defendant knew or should have known was a child.

(3) To qualify as a crime involving moral turpitude for purposes of the Immigration and Nationality Act, a crime must involve both reprehensible conduct and some degree of scienter, whether specific intent, deliberateness, willfulness, or recklessness.


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

ID 3630 (PDF)

For purposes of determining if an alien’s application for asylum was timely filed within 1 year of arrival in the United States pursuant to section 208(a)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a)(2)(B) (2006), the term “last arrival” in 8 C.F.R. § 1208.4(a)(2)(ii) (2008) refers to the alien’s most recent arrival in the United States from a trip abroad.


C-R-C-, 24 I&N Dec. 677 (BIA 2008)

ID 3629 (PDF)

In absentia removal proceedings were reopened where the respondent overcame the presumption of delivery of a Notice to Appear that was sent by regular mail by submitting an affidavit stating that he did not receive the notice and that he has continued to reside at the address to which it was sent, as well as other circumstantial evidence indicating that he had an incentive to appear, and by exercising due diligence in promptly seeking to redress the situation by obtaining counsel and requesting reopening of the proceedings. Dominguez v. United States Attorney General, 284 F.3d 1258 (11th Cir. 2002), distinguished.


M-R-A-, 24 I&N Dec. 665 (BIA 2008)

ID 3628 (PDF)

(1) Where a Notice to Appear or Notice of Hearing is properly addressed and sent by regular mail according to normal office procedures, there is a presumption of delivery, but it is weaker than the presumption that applies to documents sent by certified mail. Matter of Grijalva, 21 I&N Dec. 27 (BIA 1995), distinguished.

(2) When an Immigration Judge adjudicates a respondent’s motion to reopen to rescind an in absentia order of removal based on a claim that a notice sent by regular mail to the most recent address provided was not received, all relevant evidence submitted to overcome the weaker presumption of delivery must be considered, including but not limited to factors such as affidavits from the respondent and others who are knowledgeable about whether notice was received, whether due diligence was exercised in seeking to redress the situation, any prior applications for relief that would indicate an incentive to appear, and the respondent’s prior appearance at immigration proceedings, if applicable.

(3) The respondent overcame the presumption of delivery of a Notice of Hearing that was sent by regular mail where he submitted affidavits indicating that he did not receive the notice, had previously filed an asylum application and appeared for his first removal hearing, and exercised due diligence in promptly obtaining counsel and requesting reopening of the proceedings.


FEDERISO, 24 I&N Dec. 661 (BIA 2008)

ID 3627 (PDF)

To be eligible for a waiver of removal under section 237(a)(1)(H)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(H)(i) (2006), an alien must establish a qualifying relationship to a living relative.


ARMENDAREZ, 24 I&N Dec. 646 (BIA 2008)

ID 3626 (PDF)

Pursuant to 8 C.F.R. § 1003.2(d) (2008), the Board of Immigration Appeals lacks authority to reopen removal, deportation, or exclusion proceedings–whether on motion of an alien or sua sponte–if the alien has departed the United States after those administrative proceedings have been completed.


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

ID 3625 (PDF)

(1) An act that thwarts the goals of China’s family planning policy, such as removing an intrauterine device (“IUD”) or failing to attend a mandatory gynecological appointment, may constitute “resistance” to the policy.

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

(3) Generally, where the insertion or reinsertion of an IUD is carried out as part of a routine medical procedure, an alien will not be able to establish the required nexus, i.e., that the procedure was or would be because of her resistance to China’s family planning policy.


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

ID 3624 (PDF)

The Attorney General lifted the stay previously imposed on the Board of Immigration Appeals and remanded the case for reconsideration of the issues presented with respect to asylum claims based on domestic violence.


GUADARRAMA, 24 I&N Dec. 625 (BIA 2008)

ID 3623 (PDF)

An alien who has made a false claim of citizenship may be considered a person who is not of good moral character, but the catch-all provision of section 101(f) of the Immigration and Nationality Act, 8 U.S.C. § 1101(f) (2006), does not automatically mandate such a finding.


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

ID 3622 (PDF)

The Attorney General vacated the decision of the Board of Immigration Appeals and remanded the record for reconsideration of questions relating to the respondent’s eligibility for withholding of removal pursuant to 8 C.F.R. § 1208.16(b)(1) (2008) based on her claim that she has been subjected to female genital mutilation.


NWOZUZU, 24 I&N Dec. 609 (BIA 2008)

ID 3621 (PDF)

To obtain derivative citizenship under former section 321(a) of the Immigration and Nationality Act, 8 U.S.C. § 1432(a) (1994), an alien must acquire the status of an alien lawfully admitted for permanent residence while he or she is under the age of 18 years.


SAYSANA, 24 I&N Dec. 602 (BIA 2008)

ID 3620 (PDF)

(1) The language of section 236(c)(1) of the Immigration and Nationality Act, 8 U.S.C.§ 1226(c)(1) (2006), does not support limiting the non-DHS custodial setting solely to criminal custody tied to the basis for detention under that section.

(2) The respondent is subject to mandatory detention following his release from non-DHS custody resulting from his 2005 arrest for failure to register as a sex offender, even though that arrest did not lead to a conviction.


RAMIREZ-VARGAS, 24 I&N Dec. 599 (BIA 2008)

ID 3619 (PDF)

A parent’s period of residence in the United States cannot be imputed to a child for purposes of calculating the 7 years of continuous residence required to establish eligibility for cancellation of removal under section 240A(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a)(2) (2006).


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

ID 3618 (PDF)

(1) The respondent, a young Honduran male, failed to establish that he was a member of a particular social group of “persons resistant to gang membership,” as the evidence failed to establish that members of Honduran society, or even gang members themselves, would perceive those opposed to gang membership as members of a social group.

(2) Because membership in a criminal gang cannot constitute membership in a particular social group, the respondent could not establish that he was a member of a particular social group of “young persons who are perceived to be affiliated with gangs” based on the incorrect perception by others that he is such a gang member.


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

ID 3617 (PDF)

Neither Salvadoran youth who have been subjected to recruitment efforts by the MS-13 gang and who have rejected or resisted membership in the gang based on their own personal, moral, and religious opposition to the gang’s values and activities nor the family members of such Salvadoran youth constitute a “particular social group.”


ROTIMI, 24 I&N Dec. 567 (BIA 2008)

ID 3616 (PDF)

An alien has not “lawfully resided” in the United States for purposes of qualifying for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2006), during any periods in which the alien was an applicant for asylum or for adjustment of status and lacked any other basis on which to claim lawful residence.


EAC, INC., 24 I&N Dec. 563 (BIA 2008) (Accreditation)

ID 3615 (PDF)

(1) All accredited representatives on the staff of a recognized organization must have a broad knowledge of immigration law and procedure, even if the organization only intends to provide limited services through one or more partially accredited representatives.

(2) In order to show that a proposed accredited representative has the broad knowledge and experience in immigration law and procedure required by 8 C.F.R. § 1292.2(d) (2008), a recognized organization should submit the individual’s resume, letters of recommendation, and evidence of immigration training completed, including detailed descriptions of the topics addressed.


EAC, INC., 24 I&N Dec. 556 (BIA 2008) (Recognition)

ID 3614 (PDF)

(1) The process of recognition is designed to evaluate the qualifications of only those nonprofit organizations that provide knowledgeable legal assistance to low-income aliens in matters involving immigration law and procedure.

(2) In order to establish that it has adequate knowledge of immigration law and procedure, an organization seeking recognition must have sufficient access to legal resources, which may include electronic or internet access, as well as resources provided by a law library.

(3) An organization seeking recognition must show that it has either a local attorney who is on the staff, offering pro bono services, or providing consultation under a formal arrangement; a fully accredited representative; or a partially accredited representative with access to additional expertise.

(4) A recognized organization that does not offer a full range of immigration legal services or whose staff is not sufficiently experienced to handle more complex immigration issues must have the ability to discern when it should direct aliens to seek other legal assistance.


GONZALEZ-ZOQUIAPAN, 24 I&N Dec. 549 (BIA 2008)

ID 3613 (PDF)

(1) A single act of soliciting prostitution on one’s own behalf does not fall within section 212(a)(2)(D)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(D)(ii) (2006), which provides for the inadmissibility of an alien who “procured . . . prostitutes or persons for the purpose of prostitution.” (2) The respondent’s conviction for disorderly conduct relating to prostitution in violation of section 647(b) of the California Penal Code does not render him inadmissible under section 212(a)(2)(D)(ii) of the Act.


HINES, 24 I&N Dec. 544 (BIA 2008)

ID 3612 (PDF)

(1) Under Jamaican law, the sole means of “legitimation” of a child born out of wedlock is the marriage of the child’s natural parents. Matter of Clahar, 18 I&N Dec. 1 (BIA 1981), overruled.

(2) The respondent was born in Jamaica of natural parents who never married, and therefore his paternity was not established “by legitimation” so as to disqualify him from deriving United States citizenship pursuant to former section 321(a)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1432(a)(3) (1988), through his mother’s naturalization in 1991.


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

ID 3611 (PDF)

(1) The spouse of a person who has been physically subjected to a forced abortion orsterilization procedure is not per se entitled to refugee status under section 601(a) of theIllegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-689, codified at section 101(a)(42) ofthe Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2000). The holdings to the contrary in Matter of S-L-L-, 24 I&N Dec. 1 (BIA 2006); Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997), overruled.

(2) Persons who have not physically undergone a forced abortion or sterilization proceduremay still qualify as a refugee on account of a well-founded fear of persecution of beingforced to undergo such a procedure, or on account of persecution or a well-founded fearof persecution for failure or refusal to undergo such a procedure or for other resistance toa coercive population control program, or on other grounds enumerated in the Immigrationand Nationality Act


VELAZQUEZ-HERRERA, 24 I&N Dec. 503 (BIA 2008)

ID 3610 (PDF)

(1) For purposes of the ground of removal set forth at section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2000), the term “crime of child abuse” means any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a person under 18 years old or that impairs such a person’s physical or mental well-being, including sexual abuse or exploitation.

(2) Whether an alien is removable on the basis of a conviction for a “crime of child abuse” is determined by the elements of the alien’s offense, as reflected in the statutory definition of the crime or admissible portions of the conviction record.


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

ID 3609 (PDF)

The Board of Immigration Appeals reviews de novo an Immigration Judge’s prediction or finding regarding the likelihood that an alien will be tortured, because it relates to whether the ultimate statutory requirement for establishing eligibility for relief from removal has been met and is therefore a mixed question of law and fact, or a question of judgment.


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

ID 3608 (PDF)

(1) Under 8 C.F.R. § 1003.1(d)(3) (2008), the Board of Immigration Appeals should defer to the factual findings of an Immigration Judge, unless they are clearly erroneous, but it retains independent judgment and discretion, subject to applicable governing standards, regarding pure questions of law and the application of a particular standard of law to those facts.

(2) In determining whether established facts are sufficient to meet a legal standard, such as “well-founded fear,” the Board has the authority to weigh the evidence in a manner different from that accorded by the Immigration Judge, or to conclude that the foundation for the Immigration Judge’s legal conclusions was insufficient or otherwise not supported by the evidence of record.


RIVERA-VALENCIA, 24 I&N Dec. 484 (BIA 2008)

ID 3607 (PDF)

A judgment of guilt that has been entered by a general court-martial of the United States Armed Forces qualifies as a “conviction” within the meaning of section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2000).


KODWO, 24 I&N Dec. 479 (BIA 2008)

ID 3606 (PDF)

While a court order remains the preferred method of establishing the dissolution of a customary tribal marriage under Ghanaian law, affidavits executed by the heads of household, i.e., the fathers of the couple, that meet specified evidentiary requirements may be sufficient to establish a divorce for immigration purposes. Matter of Kumah,19 I&N Dec. 290 (BIA 1985), modified.


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

ID 3605 (PDF)

(1) Section 691(b) of the Consolidated Appropriations Act, 2008, Division J of Pub. L. No. 110-161, 121 Stat. 1844, 2365 (enacted Dec. 26, 2007), provides that for purposes of section 212(a)(3)(B) of the Immigration and Nationality Act, 8 U.S.C.A. § 1182(a)(3)(B) (West 2005), certain groups, including the Chin National Front, “shall not be considered to be a terrorist organization on the basis of any act or event occurring before the date of enactment of this section.”

(2) The Attorney General’s remand in Matter of S-K-, 24 I&N Dec. 289 (A.G. 2007), does not affect the precedential nature of the conclusions of the Board of Immigration Appeals in Matter of S-K-, 23 I&N Dec. 936 (BIA 2006), regarding the applicability and interpretation of the material support provisions in section 212(a)(3)(B)(iv)(VI) of the Act.


GONZALEZ-MURO, 24 I&N Dec. 472 (BIA 2008)

ID 3604 (PDF)

A denaturalized alien who committed crimes while a lawful permanent resident and concealed them during the naturalization application process is removable on the basis of the crimes, even though the alien was a naturalized citizen at the time of conviction. Costello v. INS, 376 U.S. 120 (1964), distinguished.


BAIRES, 24 I&N Dec. 467 (BIA 2008)

ID 3603 (PDF)

A child who has satisfied the statutory conditions of former section 321(a) of the Immigration and Nationality Act, 8 U.S.C. § 1432(a) (1988), before the age of 18 years has acquired United States citizenship, regardless of whether the naturalized parent acquired legal custody of the child before or after the naturalization.


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

ID 3602 (PDF)

A mother and daughter from Somalia who provided sufficient evidence of past persecution in the form of female genital mutilation with aggravated circumstances are eligible for a grant of asylum based on humanitarian grounds pursuant to 8 C.F.R § 1208.13(b)(1)(iii)(A) (2007), regardless of whether they can establish a well-founded fear of future persecution. Matter of Chen, 20 I&N Dec. 16 (BIA 1989), followed.


CABRERA, 24 I&N Dec. 459 (BIA 2008)

ID 3601 (PDF)

The imposition of costs and surcharges in the criminal sentencing context constitutes a form of “punishment” or “penalty” for purposes of establishing that an alien has suffered a “conviction” within the meaning of section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2000).


ARUNA, 24 I&N Dec. 452 (BIA 2008)

ID 3600 (PDF)

Absent controlling precedent to the contrary, a State law misdemeanor offense of conspiracy to distribute marijuana qualifies as an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000), where its elements correspond to the elements of the Federal felony offense of conspiracy to distribute an indeterminate quantity of marijuana, as defined by 21 U.S.C. §§ 841(a)(1), (b)(1)(D), and 846 (2000 & Supp. IV 2004).


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

ID 3599 (PDF)

(1) When evaluating an application for asylum, the Immigration Judge must make a specific finding that the applicant has or has not suffered past persecution based on a statutorily enumerated ground and then apply the regulatory framework at 8 C.F.R. § 1208.13(b)(1) (2007).

(2) If the applicant has established past persecution, there is a presumption of a well-founded fear of persecution in the future and the burden shifts to the Department of Homeland Security to prove by a preponderance of the evidence that there are changed country conditions, or that the applicant could avoid future persecution by relocating, and that it would be reasonable to do so under all of the circumstances.


KELLY, 24 I&N Dec. 446 (BIA 2008)

ID 3598 (PDF)

(1) If an Immigration Judge includes an attachment to a decision, particular care must be taken to insure that a complete record is preserved. (2) An attachment to an Immigration Judge’s oral decision should be individualized with the respondent’s name, the alien registration number, and the date of the decision, and it should be appended to the written memorandum summarizing the oral decision, which should reflect that there is an attachment.


ANIFOWOSHE, 24 I&N Dec. 442 (BIA 2008)

ID 3597 (PDF)

An alien child who was adopted under the age of 18, and whose natural sibling was subsequently adopted by the same adoptive parent or parents while under the age of 16, may qualify as a “child” within the meaning of section 101(b)(1)(E) of the Immigration and Nationality Act, 8 U.S.C.A. § 1101(b)(1)(E) (West 2008), even if the child’s adoption preceded that of the younger sibling


GARCIA-MADRUGA, 24 I&N Dec. 436 (BIA 2008)

ID 3596 (PDF)

(1) A “theft offense” within the definition of an aggravated felony in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2000), ordinarily requires the taking of, or exercise of control over, property without consent and with the criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent. Matter of V-Z-S-, 22 I&N Dec. 1338 (BIA 2000), clarified.

(2) The respondent’s welfare fraud offense in violation of section 40-6-15 of the General Laws of Rhode Island is not a “theft offense” under section 101(a)(43)(G) of the Act.


I-S- & C-S-, 24 I&N Dec. 432 (BIA 2008)

ID 3595 (PDF)

When an Immigration Judge issues a decision granting an alien’s application for withholding of removal under section 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3) (2000), without a grant of asylum, the decision must include an explicit order of removal.


MARTINEZ-ZAPATA, 24 I&N Dec. 424 (BIA 2007)

ID 3594 (PDF)

(1) Any fact (including a fact contained in a sentence enhancement) that serves to increase the maximum penalty for a crime and that is required to be found by a jury beyond a reasonable doubt, if not admitted by the defendant, is to be treated as an element of the underlying offense, so that a conviction involving the application of such an enhancement is a conviction for the enhanced offense. Matter of Rodriguez-Cortes, 20 I&N Dec. 587 (BIA 1992), superseded.

(2) The exception under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2000), for an alien convicted of a single offense of simple possession of 30 grams or less of marijuana does not apply to an alien whose conviction was enhanced by virtue of his possession of marijuana in a “drug-free zone,” where the enhancement factor increased the maximum penalty for the underlying offense and had to be proved beyond a reasonable doubt to a jury under the law of the convicting jurisdiction. Matter of Moncada, 24 I&N Dec. 62 (BIA 2007), clarified.


THOMAS, 24 I&N Dec. 416 (BIA 2007)

ID 3593 (PDF)

The respondent’s 2003 Florida offense involving the simple possession of marijuana does not qualify as an “aggravated felony” by virtue of its correspondence to the Federal felony of “recidivist possession,” even though it was committed after a prior “conviction” for a “drug, narcotic, or chemical offense” became “final” within the meaning of 21 U.S.C. § 844(a) (2000), because the respondent’s conviction for that 2003 offense did not arise from a State proceeding in which his status as a recidivist drug offender was either admitted or determined by a judge or jury. Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007), followed.


CARACHURI-ROSENDO, 24 I&N Dec. 382 (BIA 2007)

ID 3592 (PDF)

(1) Decisional authority from the Supreme Court and the controlling Federal circuit court of appeals is determinative of whether a State drug offense constitutes an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000), by virtue of its correspondence to the Federal felony offense of “recidivist possession,” as defined by 21 U.S.C. § 844(a) (2000). Matter of Yanez, 23 I&N Dec. 390 (BIA 2002), followed.

(2) Controlling precedent of the United States Court of Appeals for the Fifth Circuit dictates that the respondent’s Texas conviction for alprazolam possession qualifies as an “aggravated felony” conviction by virtue of the fact that the underlying alprazolam possession offense was committed after the respondent’s prior State “conviction” for a “drug, narcotic, or chemical offense” became “final” within the meaning of 21 U.S.C. § 844(a).

(3) Absent controlling authority regarding the “recidivist possession” issue, an alien’s State conviction for simple possession of a controlled substance will not be considered an aggravated felony conviction on the basis of recidivism unless the alien’s status as a recidivist drug offender was either admitted by the alien or determined by a judge or jury in connection with a prosecution for that simple possession offense.


LEMUS, 24 I&N Dec. 373 (BIA 2007)

ID 3591 (PDF)

(1) An alien who is unlawfully present in the United States for a period of 1 year, departs the country, and then seeks admission within 10 years of the date of his departure from the United States, is inadmissible under section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(B)(i)(II) (2000), even if the alien’s departure was not made pursuant to an order of removal and was not a voluntary departure in lieu of being subject to removal proceedings or at the conclusion of removal proceedings.

(2) Adjustment of status under section 245(i) of the Act, 8 U.S.C. § 1255(i) (2000), is unavailable to an alien who is inadmissible under section 212(a)(9)(B)(i)(II) of the Act.


BRIONES, 24 I&N Dec. 355 (BIA 2007)

ID 3590 (PDF)

(1) Section 212(a)(9)(C)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9)(C)(i)(I) (2000), covers recidivist immigration violators, so to be inadmissible under that section, an alien must depart the United States after accruing an aggregate period of “unlawful presence” of more than 1 year and thereafter reenter, or attempt to reenter, the United States without being admitted.

(2) Adjustment of status under section 245(i) of the Act, 8 U.S.C. § 1255(i) (2000), is not available to an alien who is inadmissible under section 212(a)(9)(C)(i)(I) of the Act.


C-W-L-, 24 I&N Dec. 346 (BIA 2007)

ID 3589 (PDF)

An alien who is subject to a final order of removal is barred by both statute and regulation from filing an untimely motion to reopen removal proceedings to submit a successive asylum application under section 208(a)(2)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a)(2)(D) (2000), based on changed personal circumstances.


N-A-M-, 24 I&N Dec. 336 (BIA 2007)

ID 3588 (PDF)

(1) In order to be considered a particularly serious crime under section 241(b)(3)(B)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)(B)(ii) (2000), an offense need not be an aggravated felony under section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (2000 & Supp. IV 2004).

(2) Once the elements of an offense are found to potentially bring it within the ambit of a particularly serious crime, all reliable information may be considered in determining whether the offense constitutes a particularly serious crime, including but not limited to the record of conviction and sentencing information.


SINGH, 24 I&N Dec. 331 (BIA 2007)

ID 3587 (PDF)

There is no conflict between section 216(c)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1186a(c)(4) (2000), and its implementing regulation at 8 C.F.R. § 1216.5(e)(1) (2007) where both provide the same start date for the circumstances to be considered in determining a conditional permanent resident’s application for an extreme hardship waiver and only the statute provides an end date for the relevant period.


S-I-K-, 24 I&N Dec. 324 (BIA 2007)

ID 3586 (PDF)

An alien convicted of conspiracy is removable as an alien convicted of an aggravated felony within the meaning of sections 101(a)(43)(M)(i) and (U) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(M)(i) and (U) (2000), where the substantive crime that was the object of the conspiracy was an offense that involved “fraud or deceit” and where the potential loss to the victim or victims exceeded $10,000.


BABAISAKOV, 24 I&N Dec. 306 (BIA 2007)

ID 3585 (PDF)

(1) A single ground for removal may require proof of a conviction tied to the statutory elements of a criminal offense, as well as proof of an additional fact or facts that are not tied to the statutory elements of any such offense.

(2) When a removal charge depends on proof of both the elements leading to a conviction and some nonelement facts, the nonelement facts may be determined by means of evidence beyond the limited “record of conviction” that may be considered by courts employing the “categorical approach,” the “modified categorical approach,” or a comparable “divisibility analysis,” although the record of conviction may also be a suitable source of proof, depending on the circumstances.

(3) Section 101(a)(43)(M)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(M)(i) (2000), which defines the term “aggravated felony” to mean “an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,” depends on proof of both a conviction having an element of fraud or deceit and the nonelement fact of a loss exceeding $10,000 that is tied to the conviction.

(4) Because the phrase “in which the loss to the victim or victims exceeds $10,000” is not tied to an element of the fraud or deceit offense, the loss determination is not subject to the limitations of the categorical approach, the modified categorical approach, or a divisibility analysis and may be proved by evidence outside the record of conviction, provided that the loss is still shown to relate to the conduct of which the person was convicted and, for removal purposes, is proven by clear and convincing evidence.

(5) The Immigration Judge erred in declining to consider a presentence investigation report as proof of victim loss because of his mistaken belief that he was restricted to consideration of the respondent ’s record of conviction.


A-T-, 24 I&N Dec. 296 (BIA 2007), vacated, 24 I&N Dec. 617 (A.G. 2008)

ID 3584 (PDF)

(1) Because female genital mutilation (“FGM”) is a type of harm that generally is inflicted only once, the procedure itself will normally constitute a “fundamental change in circumstances” such that an asylum applicant no longer has a well-founded fear of persecution based on the fear that she will again be subjected to FGM.

(2) Unlike forcible sterilization, a procedure that also is performed only once but has lasting physical and emotional effects, FGM has not been specifically identified as a basis for asylum within the definition of a “refugee” under section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2000), so FGM does not qualify as “continuing persecution.” Matter of Y-T-L-, 23 I&N Dec. 601 (BIA 2003), distinguished.


JEAN-JOSEPH, 24 I&N Dec. 294 (BIA 2007)

ID 3583 (PDF)

Where an attorney who was suspended from practice before the Board of Immigration Appeals, the Immigration Courts, and the Department of Homeland Security pending the final disposition of his attorney discipline proceeding sought reinstatement because he had been reinstated to the Florida Bar, but he had practiced before the Miami Immigration Court while under the Board’s immediate suspension order, his motion was denied, and he was instead suspended for 120 days, twice the recommended discipline in the Notice of Intent To Discipline.


KRIVONOS, 24 I&N Dec. 292 (BIA 2007)

ID 3582 (PDF)

A motion for reinstatement to practice filed by an attorney who was expelled from practice before the Board of Immigration Appeals, the Immigration Courts, and the Department of Homeland Security as a result of his conviction for immigration-related fraud, but who was reinstated to practice law in New York, was denied because he failed to show that he possessed the moral and professional qualifications to be reinstated to practice and that his reinstatement would not be detrimental to the administration of justice.


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

ID 3581 (PDF)

The Attorney General remanded the case for the Board of Immigration Appeals to consider if further proceedings are appropriate in light of the February 20, 2007, determination of the Secretary of Homeland Security that section 212(a)(3)(B)(iv)(VI) of the Immigration and Nationality Act, 8 U.S.C.A. § 1182(a)(3)(B)(iv)(VI) (West 2005), shall not apply with respect to material support provided to the Chin National Front/Chin National Army by an alien who satisfies certain specified criteria.


SHAH, 24 I&N Dec. 282 (BIA 2007)

ID 3580 (PDF)

(1) An attorney who knowingly makes a false statement of material fact or law or willfully misleads any person concerning a material and relevant matter relating to a case is subject to discipline.

(2) It is in the public interest to discipline an attorney who knowingly and willfully misled the United States Citizenship and Immigration Services by presenting an improperly obtained certified Labor Condition Application under his signature in support of a nonimmigrant worker petition.


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

ID 3579 (PDF)

An alien may not establish eligibility for asylum or withholding of removal based solely on fear that his or her daughter will be harmed by being forced to undergo female genital mutilation upon returning to the alien’s home country.


CHAVEZ, 24 I&N Dec. 272 (BIA 2007)

ID 3578 (PDF)

(1) An alien seeking to reopen proceedings to establish that a conviction has been vacated bears the burden of proving that the conviction was not vacated solely for immigration purposes.

(2) Where the respondent presented no evidence to prove that his conviction was not vacated solely for immigration purposes, he failed to meet his burden of showing that his motion to reopen should be granted.


JARA RIERO AND JARA ESPINOL, 24 I&N Dec. 267 (BIA 2007)

ID 3577 (PDF)

An alien seeking to establish eligibility for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2000), on the basis of a marriage-based visa petition must prove that the marriage was bona fide at its inception in order to show that the visa petition was “meritorious in fact” pursuant to 8 C.F.R. § 1245.10(a)(3) (2007).


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

ID 3576 (PDF)

(1) Under section 101(a)(3) of the REAL ID Act of 2005, Div. B of Pub. L. No. 109-13, 119 Stat. 302, 303 (to be codified at section 208(b)(1)(B)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(B)(iii)), a trier of fact may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his account, and inconsistencies in statements, without regard to whether they go to the heart of the asylum claim.

(2) The Immigration Judge properly considered the totality of the circumstances in finding that the respondent lacked credibility based on his demeanor, his implausible testimony, the lack of corroborating evidence, and his inconsistent statements, some of which did not relate to the heart of his claim.


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

ID 3575 (PDF)

In her motion to reopen proceedings to pursue her asylum claim, the applicant did not meet the heavy burden to show that her proffered evidence is material and reflects “changed circumstances arising in the country of nationality” to support the motion where the documents submitted reflect general birth planning policies in her home province that do not specifically show any likelihood that she or similarly situated Chinese nationals will be persecuted as a result of the birth of a second child in the United States.


SOLON, 24 I&N Dec. 239 (BIA 2007)

ID 3574 (PDF)

The offense of assault in the third degree in violation of section 120.00(1) of the New York Penal Law, which requires both specific intent and physical injury, is a crime involving moral turpitude.


SEJAS, 24 I&N Dec. 236 (BIA 2007)

ID 3573 (PDF)

The offense of assault and battery against a family or household member in violation of section 18.2-57.2 of the Virginia Code is not categorically a crime involving moral turpitude.


ESCOBAR, 24 I&N Dec. 231 (BIA 2007)

ID 3572 (PDF)

A parent’s lawful permanent resident status cannot be imputed to a child for purposes of calculating the 5 years of lawful permanent residence required to establish eligibility for cancellation of removal under section 240A(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a)(1) (2000).


R- D-, 24 I&N Dec. 221 (BIA 2007)

ID 3571 (PDF)

(1) An alien who leaves the United States and is admitted to Canada to seek refugee status has made a departure from the United States.

(2) An alien returning to the United States after the denial of an application for refugee status in Canada is seeking admission into the United States and is therefore an arriving alien under 8 C.F.R. § 1001.1(q) (2007).


GONZALEZ-SILVA, 24 I&N Dec. 218 (BIA 2007)

ID 3570 (PDF)

An alien whose conviction precedes the effective date of section 237(a)(2)(E) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E) (2000), is not “convicted of an offense under” that section and therefore is not barred from establishing eligibility for cancellation of removal by section 240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C) (2000).


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

ID 3569 (PDF)

Under section 101(a)(3) of the REAL ID Act of 2005, Div. B of Pub. L. No. 109-13, 119 Stat. 302, 303, in mixed motive asylum cases, an applicant must prove that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for the claimed persecution.


ABOSI, 24 I&N Dec. 204 (BIA 2007)

ID 3568 (PDF)

A returning lawful permanent resident seeking to overcome a ground of inadmissibility is not required to apply for adjustment of status in conjunction with a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2000).


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

ID 3567 (PDF)

A person who fathers or gives birth to two or more children in China may qualify as a refugee if he or she establishes that the births are a violation of family planning policies that would be punished by local officials in a way that would give rise to a well-founded fear of persecution.


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

ID 3566 (PDF)

(1) The evidence of record did not demonstrate that the Chinese Government has a national policy of requiring forced sterilization of a parent who returns with a second child born outside of China. (2) Although some sanctions may be imposed pursuant to local family planning policies in China for the birth of a second child abroad, the applicant failed to provide evidence that such sanctions in Fujian Province or Changle City would rise to the level of persecution.


GARCIA, 24 I&N Dec. 179 (BIA 2007)

ID 3565 (PDF)

An application for special rule cancellation of removal is a continuing one, so an applicant can continue to accrue physical presence until the issuance of a final administrative decision. Matter of Ortega-Cabrera, 23 I&N Dec. 793 (BIA 2005), reaffirmed; Cuadra v. Gonzales, 417 F.3d 947 (8th Cir. 2005), followed in jurisdiction only


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

ID 3564 (PDF)

(1) An abortion is forced by threats of harm when a reasonable person would objectively view the threats for refusing the abortion to be genuine, and the threatened harm, if carried out, would rise to the level of persecution.

(2) Nonphysical forms of harm, such as the deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment, or other essentials of life, may amount to persecution.

(3) When an Immigration Judge denies asylum solely in the exercise of discretion and then grants withholding of removal, 8 C.F.R. § 1208.16(e) (2006) requires the Immigration Judge to reconsider the denial of asylum to take into account factors relevant to family unification.


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

ID 3563 (PDF)

(1) In determining that an application for asylum is frivolous, the Immigration Judge must address the question of frivolousness separately and make specific findings that the applicant deliberately fabricated material elements of the asylum claim.

(2) Before the Immigration Judge makes a finding that an asylum application is frivolous, the applicant must be given sufficient opportunity to account for any discrepancies or implausible aspects of the claim.

(3) The Immigration Judge must provide cogent and convincing reasons for determining that a preponderance of the evidence supports a frivolousness finding, taking into account any explanations by the applicant for discrepancies or implausible aspects of the claim.


TOBAR-LOBO, 24 I&N Dec. 143 (BIA 2007)

ID 3562 (PDF)

Willful failure to register by a sex offender who has been previously apprised of the obligation to register, in violation of section 290(g)(1) of the California Penal Code, is a crime involving moral turpitude.


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

ID 3561 (PDF)

(1)When a case is remanded to an Immigration Judge for completion of the appropriate background checks, the Immigration Judge is required to enter a final order granting or denying the requested relief.

(2) Although an Immigration Judge may not reconsider the prior decision of the Board of Immigration Appeals when a case is remanded for background checks, the Immigration Judge reacquires jurisdiction over the proceedings and may consider additional evidence regarding new or previously considered relief if it meets the requirements for reopening of the proceedings.


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

ID 3560 (PDF)

(1) The North Korean Human Rights Act of 2004, Pub. L. No. 108-333, 118 Stat. 1287, which provides that North Koreans cannot be barred from eligibility for asylum on account of any legal right to citizenship they may enjoy under the Constitution of South Korea, does not apply to North Koreans who have availed themselves of the right to citizenship in South Korea.

(2) The respondents, natives of North Korea who became citizens of South Korea, are precluded from establishing eligibility for asylum as to North Korea on the basis of their firm resettlement in South Korea.


KOCHLANI, 24 I&N Dec. 128 (BIA 2007)

ID 3559 (PDF)

The offense of trafficking in counterfeit goods or services in violation of 18 U.S.C. § 2320 (2000) is a crime involving moral turpitude.


KOTLIAR, 24 I&N Dec. 124 (BIA 2007)

ID 3558 (PDF)

(1) An alien who has been apprehended at home while on probation for criminal convictions is subject to mandatory detention under section 236(c)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1226(c)(1) (2000), regardless of the reason for the most recent criminal custody, provided it can be ascertained from the facts that he was released from criminal custody after October 8, 1998, the expiration date of the Transition Period Custody Rules.

(2) An alien need not be charged with the ground that provides the basis for mandatory detention under section 236(c)(1) of the Act in order to be considered an alien who “is deportable” on that ground.


W-C-B-, 24 I&N Dec. 118 (BIA 2007)

ID 3557 (PDF)

(1) An Immigration Judge has no authority to reinstate a prior order of deportation or removal pursuant to section 241(a)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1231(a)(5) (2000).

(2) An alien subject to reinstatement of a prior order of deportation or removal pursuant to section 241(a)(5) of the Act has no right to a hearing before an Immigration Judge.

(3) The Immigration Judge did not err in terminating removal proceedings as improvidently begun where the respondent was subject to reinstatement of his prior order of deportation.


GERTSENSHTEYN, 24 I&N Dec. 111 (BIA 2007)

ID 3556 (PDF)

(1) The categorical approach to determining whether a criminal offense satisfies a particular ground of removal does not apply to the inquiry whether a violation of 18 U.S.C. § 2422(a) was committed for “commercial advantage” and thus qualifies as an aggravated felony under section 101(a)(43)(K)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(K)(ii) (2000), where “commercial advantage” is not an element of the offense and the evidence relating to that issue is not ordinarily likely to be found in the record of conviction.

(2) The respondent’s offense was committed for “commercial advantage” where it was evident from the record of proceeding, including the respondent’s testimony, that he knew that his employment activity was designed to create a profit for the prostitution business for which he worked.


ACOSTA HIDALGO, 24 I&N Dec. 103 (BIA 2007)

ID 3555 (PDF)

(1) Because the Board of Immigration Appeals and the Immigration Judges lack jurisdiction to adjudicate applications for naturalization, removal proceedings may only be terminated pursuant to 8 C.F.R. § 1239.2(f) (2006) where the Department of Homeland Security has presented an affirmative communication attesting to an alien’s prima facie eligibility for naturalization. Matter of Cruz, 15 I&N Dec. 236 (BIA 1975), reaffirmed.

(2) An adjudication by the Department of Homeland Security on the merits of an alien’s naturalization application while removal proceedings are pending is not an affirmative communication of the alien’s prima facie eligibility for naturalization that would permit termination of proceedings under 8 C.F.R. § 1239.2(f).


BARRIENTOS, 24 I&N Dec. 100 (BIA 2007)

ID 3554 (PDF)

Section 244(b)(5)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1254(b)(5)(B) (2000), permits an alien to assert his right to Temporary Protected Status in removal proceedings, even if his application has previously been denied by the Administrative Appeals Unit.


TEJWANI, 24 I&N Dec. 97 (BIA 2007)

ID 3553 (PDF)

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


ZMIJEWSKA, 24 I&N Dec. 87 (BIA 2007)

ID 3552 (PDF)

(1) The Board of Immigration Appeals lacks authority to apply an “exceptional circumstances” or other general equitable exception to the penalty provisions for failure to depart within the time period afforded for voluntary departure under section 240B(d)(1) of the Immigration and Nationality Act, 8 U.S.C.A. § 1229c(d)(1) (West Supp. 2006).

(2) An alien has not voluntarily failed to depart the United States under section 240B(d)(1) of the Act when the alien, through no fault of his or her own, was unaware of the voluntary departure order or was physically unable to depart within the time granted.


AVILA-PEREZ, 24 I&N Dec. 78 (BIA 2007)

ID 3551 (PDF)

(1) Section 201(f)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1151(f)(1) (Supp. II 2002), which allows the beneficiary of an immediate relative visa petition to retain his status as a “child” after he turns 21, applies to an individual whose visa petition was approved before the August 6, 2002, effective date of the Child Status Protection Act, Pub. L. No. 107-208, 116 Stat. 927 (2002), but who filed an application for adjustment of status after that date.

(2) The respondent, whose visa petition was approved before August 6, 2002, and who filed his adjustment of status application after that date, retained his status as a child, and therefore an immediate relative, because he was under the age of 21 when the visa petition was filed on his behalf.


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

ID 3550 (PDF)

(1) Factors to be considered in determining whether a particular social group exists include whether the group’s shared characteristic gives the members the requisite social visibility to make them readily identifiable in society and whether the group can be defined with sufficient particularity to delimit its membership.

(2) The respondents failed to establish that their status as affluent Guatemalans gave them sufficient social visibility to be perceived as a group by society or that the group was defined with adequate particularity to constitute a particular social group.


MONCADA, 24 I&N Dec. 62 (BIA 2007)

ID 3549 (PDF)

The exception to deportability under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2000), for an alien convicted of possessing 30 grams or less of marijuana for his own use does not apply to an alien convicted under a statute that has an element requiring that possession of the marijuana be in a prison or other correctional setting.


O-S-G-, 24 I&N Dec. 56 (BIA 2006)

ID 3548 (PDF)

A motion to reconsider a decision of the Board of Immigration Appeals must include the following: (1) an allegation of material factual or legal errors in the prior decision that is supported by pertinent authority;

(2) in the case of an affirmance without opinion (“AWO”), a showing that the alleged errors and legal arguments were previously raised on appeal and a statement explaining how the Board erred in affirming the Immigration Judge’s decision under the AWO regulations; and

(3) if there has been a change in law, a reference to the relevant statute, regulation, or precedent and an explanation of how the outcome of the Board’s decision is materially affected by the change.


TRUONG, 24 I&N Dec. 52 (BIA 2006)

ID 3547 (PDF)

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

(2) Where the respondent was disbarred by the highest court of the State of New York, based in large part on his misconduct in a State court action, and where none of the exceptions to discipline are applicable, suspension from practice before the Board of Immigration Appeals, the Immigration Courts, and the Department of Homeland Security for 7 years is an appropriate sanction.


DIAZ-RUACHO, 24 I&N Dec. 47 (BIA 2006)

ID 3546 (PDF)

An alien who fails to post the voluntary departure bond required by section 240B(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b)(3) (2000), is not subject to penalties for failure to depart within the time period specified for voluntary departure


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

ID 3545 (PDF)

(1) The provisions regarding credibility determinations enacted in section 101(a)(3) of the REAL ID Act of 2005, Div. B of Pub. L. No. 109-13, 119 Stat. 231, 303 (effective May 11, 2005) (to be codified at section 208(b)(1)(B)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(B)(iii)), only apply to applications for asylum, withholding, and other relief from removal that were initially filed on or after May 11, 2005, whether with an asylum officer or an Immigration Judge.

(2) Where the respondent filed his applications for relief with an asylum officer prior to the May 11, 2005, effective date of section 208(b)(1)(B)(iii) of the Act, but renewed his applications in removal proceedings before an Immigration Judge subsequent to that date, the provisions of section 208(b)(1)(B)(iii) were not applicable to credibility determinations made in adjudicating his applications.


GUERRA, 24 I&N Dec. 37 (BIA 2006)

ID 3544 (PDF)

(1) In a custody redetermination under section 236(a) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a) (2000), where an alien must establish to the satisfaction of the Immigration Judge that he or she does not present a danger to others, a threat to the national security, or a flight risk, the Immigration Judge has wide discretion in deciding the factors that may be considered.

(2) In finding that the respondent is a danger to others, the Immigration Judge properly considered evidence that the respondent had been criminally charged in an alleged controlled substance trafficking scheme, even if he had not actually been convicted of a criminal offense.


JURADO, 24 I&N Dec. 29 (BIA 2006)

ID 3543 (PDF)

(1) An alien need not be charged and found inadmissible or removable on a ground specified in section 240A(d)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1)(B) (2000), in order for the alleged criminal conduct to terminate the alien’s continuous residence in this country.

(2) Retail theft in violation of title18, section 3929(a)(1) of the Pennsylvania Consolidated Statutes is a crime involving moral turpitude.

(3) Unsworn falsification to authorities in violation of title18, section 4904(a) of the Pennsylvania Consolidated Statutes is a crime involving moral turpitude.


ROBLES, 24 I&N Dec. 22 (BIA 2006)

ID 3542 (PDF)

(1) When the Attorney General overrules or reverses only one holding in a precedent decision of the Board of Immigration Appeals and expressly declines to consider any alternative holding in the case, the remaining holdings retain their precedential value.

(2) Misprision of a felony in violation of 18 U.S.C. § 4 (2000) is a crime involving moral turpitude. Matter of Sloan, 12 I&N Dec. 840 (A.G. 1968; BIA 1966), overruled in part.

(3) Under the “stop-time” rule in section 240A(d)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1)(B) (2000), an offense is deemed to end an alien’s continuous residence as of the date of its commission, even if the offense was committed prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546. Matter of Perez, 22 I&N Dec. 689 (BIA 1999), reaffirmed.


S-L-L-, 24 I&N Dec. 1 (BIA 2006)

ID 3541 (PDF)

(1) An alien whose spouse was forced to undergo an abortion or sterilization can establish past persecution on account of political opinion and qualify as a refugee within the definition of section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2000), but only if the alien was, in fact, opposed to the spouse’s abortion or sterilization and was legally married at the time of the abortion or sterilization. Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997), reaffirmed and clarified.

(2) Unmarried applicants claiming persecution related to a partner’s coerced abortion or sterilization may qualify for asylum if they demonstrate that they have been persecuted for “other resistance to a coercive population control program” within the meaning of section 101(a)(42) of the Act.