(ID 3664)

Matter of VELASCO, 25 I&N Dec. 143 (BIA 2009)

(1) The voluntary departure regulations at 8 C.F.R. § 1240.26(c)(4), Nt. (2009), which took effect on January 20, 2009, and superseded Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006), do not apply retroactively.

(2) Where an Immigration Judge granted voluntary departure prior to January 20, 2009, and the alien failed to timely post the voluntary departure bond required by section 240B(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b)(3) (2006), the former regulatory scheme, as interpreted in Matter of Diaz-Ruacho, remains applicable, and the penalties imposed by section 240B(d)(1) for failure to depart within the voluntary departure period do not apply.

(3) Pursuant to 8 C.F.R. § 1240.26(c)(3)(ii), Nt., a voluntary departure order entered by an Immigration Judge on or after January 20, 2009, will not be reinstated by the Board of Immigration Appeals in its final order on appeal unless the alien provides the Board, within 30 days of filing the appeal, sufficient proof that the voluntary departure bond was timely posted with the Department of Homeland Security.

(ID 3663)

Matter of URENA, 25 I&N Dec. 140 (BIA 2009)

(1) Dangerous aliens are properly detained without bond pending the completion of proceedings to remove them from the United States.

(2) Only if an alien has established that he would not pose a danger to property or persons should an Immigration Judge decide the amount of bond necessary to ensure the alien’s presence at proceedings to remove him from the United States.

(3) Where an Immigration Judge characterized an alien seeking release from custody as a “potential” danger to the community but ordered him released upon the posting of a bond amount, the record was remanded for the Immigration Judge to clarify whether the alien met his burden of proving that his release on bond would not pose a danger to property or persons.

(ID 3662)

Matter of RAJAH, 25 I&N Dec. 127 (BIA 2009)

(1) In determining whether good cause exists to continue removal proceedings to await the adjudication of a pending employment-based visa petition or labor certification, an Immigration Judge should determine the alien’s place in the adjustment of status process and consider the applicable factors identified in Matter of Hashmi, 24 I&N Dec.
785 (BIA 2009), and any other relevant considerations.

(2) An alien’s unopposed motion to continue ongoing removal proceedings to await the adjudication of a pending employment-based visa petition should generally be granted if approval of the visa petition would render him prima facie eligible for adjustment of status.

(3) The pendency of a labor certification is generally not sufficient to warrant a grant of a continuance.

(ID 3661)

Matter of MARTINEZ ESPINOZA, 25 I&N Dec. 118 (BIA 2009)

(1) An alien may be rendered inadmissible under section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2006), on the basis of a conviction for possession or use of drug paraphernalia.

(2) An alien who is inadmissible under section 212(a)(2)(A)(i)(II) of the Act based on a drug paraphernalia offense may qualify for a waiver of inadmissibility under section 212(h) of the Act if that offense “relates to a single offense of simple possession of 30 grams or less of marijuana.”

(ID 3660)

Matter of MORENO-ESCOBOSA, 25 I&N Dec. 114 (BIA 2009)

(1) The date of an alien’s plea agreement, rather than the date of sentencing, is controlling in determining whether the alien is eligible for a waiver under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994).

(2) The decision of the United States Court of Appeals for the Ninth Circuit in Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009), does not invalidate 8 C.F.R. § 1212.3 (2009), so as to preclude an alien who seeks to waive a deportation ground from establishing eligibility for section 212(c) relief.

(ID 3659)

Matter of YAURI, 25 I&N Dec. 103 (BIA 2009)

(1) With a narrow exception not applicable to this case, the United States Citizenship and Immigration Services (“USCIS”) has exclusive jurisdiction to adjudicate an arriving alien’s application for adjustment of status under 8 C.F.R. § 245.2(a)(1) (2009) and agrees that it retains jurisdiction to adjudicate the application even where an unexecuted
administratively final order of removal remains outstanding.

(2) The Board of Immigration Appeals generally lacks authority to reopen the proceedings of aliens under final orders of exclusion, deportation, or removal who seek to pursue relief over which the Board and the Immigration Judges have no jurisdiction, especially where reopening is sought simply as a mechanism to stay the final order while the collateral
matter is resolved by the agency or court having jurisdiction to do so.

(3) With regard to untimely or number-barred motions to reopen, the Board will not generally exercise its discretion to reopen proceedings sua sponte for an arriving alien to pursue adjustment of status before the USCIS.

(ID 3658)

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

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

(ID 3657)

Matter of GARCIA-GARCIA, 25 I&N Dec. 93 (BIA 2009)

(1) An Immigration Judge has authority under section 236(a)(2)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a)(2)(A) (2006), and 8 C.F.R. § 1236.1(d)(1) (2009) to review and consider whether to modify the conditions of release imposed on an alien by the Department of Homeland Security (“DHS”).

(2) Where the respondent filed an application with the Immigration Judge to ameliorate the terms of release within 7 days of his release from custody by the DHS, the Immigration Judge had jurisdiction to review and modify the condition placed on the respondent’s release that he participate in the Intensive Supervision Appearance Program.

(ID 3656)

Matter of SILITONGA, 25 I&N Dec. 89 (BIA 2009)

Under 8 C.F.R. §§ 245.2(a)(1) and 1245.2(a)(1)(ii) (2009), Immigration Judges have no jurisdiction to adjudicate an application filed by an arriving alien seeking adjustment of status, 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.

(ID 3655)

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

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

(ID 3654)

Matter of EVRA, 25 I&N Dec. 79 (BIA 2009)

The conduct underlying an alien’s arrest and incarceration does not constitute “fault” within the meaning of section 240(b)(5)(C)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C)(ii) (2006), which provides that an order of removal issued at a hearing conducted in absentia may be rescinded if the alien was in Federal or State custody at the time of the scheduled hearing and the failure to appear was “through no fault of the alien.”

(ID 3653)

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

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

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

(ID 3652)

Matter of LAMUS, 25 I&N Dec. 61 (BIA 2009)

A motion to reopen to apply for adjustment of status based on a marriage entered into after the commencement of removal proceedings may not be denied under the fifth factor enumerated in Matter of Velarde, 23 I&N Dec. 253 (BIA 2002), based on the mere fact that the Government has filed an opposition to the motion, without regard to the merit of that
opposition.

(ID 3651)

Matter of BULNES, 25 I&N Dec. 57 (BIA 2009)

An alien’s departure from the United States while under an outstanding order of deportation or removal issued in absentia does not deprive the Immigration Judge of jurisdiction to entertain a motion to reopen to rescind the order if the motion is premised upon lack of notice.

(ID 3650)

Matter of LUJAN, 25 I&N Dec. 53 (BIA 2009)

The Board of Immigration Appeals lacks jurisdiction to review an appeal by the Department of Homeland Security of an Immigration Judge’s decision to vacate an expedited removal order after a claimed status review hearing pursuant to 8 C.F.R. § 1235.3(b)(5)(iv) (2009), at which the Immigration Judge determined the respondent to be a United States citizen.

(ID 3649)

Matter of LOPEZ, 25 I&N Dec. 49 (BIA 2009)

An applicant for Temporary Protected Status may seek de novo review by an Immigration Judge in removal proceedings, regardless of whether all appeal rights before the Department of Homeland Security have been exhausted. Matter of Barrientos, 24 I&N Dec. 100 (BIA 2007), clarified.

(ID 3648)

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

(1) The Attorney General has not delegated authority to Immigration Judges, under 8 C.F.R. § 1236.1(d) (2009), to redetermine the conditions of custody imposed by the Department of Homeland Security with respect to aliens who have not been issued and served with a Notice to Appear (Form I-862) in relation to removal proceedings pursuant to 8 C.F.R. Part 1240 (2009).

(2) An alien admitted to the United States pursuant to the Visa Waiver Program who has not been served with a Notice to Appear pursuant to 8 C.F.R. Part 1240 is not entitled to a custody hearing before an Immigration Judge under 8 C.F.R. § 1236.1(d). Matter of Gallardo, 21 I&N Dec. 210 (BIA 1996), superseded.

(ID 3647)

Matter of BARCENAS, 25 I&N Dec. 40 (BIA 2009)

(1) An alien who willfully and knowingly makes a false representation of birth in the United States on a passport application is inadmissible under section 212(a)(6)(C)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(ii) (2006), for making a false representation of United States citizenship.

(2) The respondent, who was convicted of violating 18 U.S.C. § 1542 (2006) for falsely representing that she was born in the United States on an application for a passport, is removable under section 237(a)(1)(A) of the Act, 8 U.S.C. § 1227(a)(1)(A) (2006), as an alien who was inadmissible at the time of her adjustment of status under section 212(a)(6)(C)(ii) of the Act.

(ID 3646)

Matter of WANG, 25 I&N Dec. 28 (BIA 2009)

The automatic conversion and priority date retention provisions of the Child Status Protection Act, Pub L. No. 107-208, 116 Stat. 927 (2002), do not apply to an alien who ages out of eligibility for an immigrant visa as the derivative beneficiary of a fourth-preference visa petition, and on whose behalf a second-preference petition is later filed by a different petitioner.

(ID 3645)

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

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

(ID 3644)

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

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

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

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

(ID 3643)

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

The Attorney General vacated the decision in Matter of Compean, Bangaly & J-E-C-, 24 I&N Dec. 710 (A.G. 2009), and pending the outcome of a rulemaking process, directed the Board of Immigration Appeals and the Immigration Judges to continue to apply the previously established standards for reviewing motions to reopen based on claims of ineffective assistance of counsel.