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Precedent Chart


DETENTION AND BOND

Jurisdiction

Matter of Gallardo, 21 I&N Dec. 210 (BIA 1996)

An alien's admission pursuant to the Visa Waiver Pilot Program does not curtail his ability to obtain a bond redetermination hearing when the Immigration and Naturalization Service has issued an Order to Show Cause and Notice of Hearing (Form I-221) and the alien has applied for asylum and withholding of deportation.

Matter of Oseiwusu, 22 I&N Dec. 19 (BIA 1998)

(1) An alien who arrives in the United States pursuant to a grant of advance parole is an “arriving alien,” as that term is defined in the federal regulations.

(2) According to the regulations, an Immigration Judge has no authority over the apprehension, custody, and detention of arriving aliens and is therefore without authority to consider the bond request of an alien returning pursuant to a grant of advance parole.

Matter of Saelee, 22 I&N Dec. 1258 (BIA 2000)

(1) The Board of Immigration Appeals has jurisdiction over an appeal from a district director’s custody determination that was made after the entry of deportation or removal pursuant to 8C.F.R. § 236.1 (1999), regardless of whether the alien formally initiated the review.

(2) An alien subject to a final order of deportation based on a conviction for an aggravated felony, who is unable to be deported, may be eligible for release from detention after the expiration of the removal period pursuant to section 241(a)(6) of the Immigration and Nationality Act, 8 U.S.C. §1231(a)(6) (Supp. II 1996).

(3) Where an alien seeking review of a district director’s post-final-order custody determination failed to demonstrate by clear and convincing evidence that the release would not pose a danger to the community pursuant to 8 C.F.R. §241.4(a) (1999), the district director’s decision to continue detention was sustained.

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

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).

Matter of Aguilar-Aquino, 24 I&N Dec. 747 (BIA 2009)

(1) “Custody,” as the term is used in the regulation at 8 C.F.R. § 1236.1(d)(1) (2008) relating to requests for amelioration of the terms of release from custody, requires actual physical restraint 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 Homeland Security 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 for amelioration of the terms of his release under 8 C.F.R. § 1236.1(d)(1) where the respondent had been “released from custody” more than 7 days prior to his request.

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

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

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.

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.

Mandatory Detention

Matter of Joseph, 22 I&N Dec. 660 (BIA 1999)

(1) Pursuant to 8 C.F.R. § 3.19(i)(2), published as a final rule in 63 Fed. Reg. 27,441, 27,448-49 (1998), the Immigration and Naturalization Service’s filing of a Form EOIR-43 (Notice of INS Intent to Appeal Custody Redetermination) provides an automatic stay of an Immigration Judge’s order releasing an alien who is charged with removal under one of the mandatory detention grounds set forth in section 236(c)(1) of the Act, 8 U.S.C. § 1226(c)(1) (Supp. II 1996), even where the Immigration Judge has determined that the alien is not subject to section 236(c)(1) and has terminated the removal proceedings on that charge.

(2) The filing of an appeal from an Immigration Judge’s merits decision terminating removal proceedings does not operate to stay an Immigration Judge’s release order in related bond proceedings. Matter of Valles, 21 I&N Dec. 769 (BIA 1997), modified.

Matter of Joseph, 22 I&N Dec. 799 (BIA 1999)

(1) For purposes of determining the custody conditions of a lawful permanent resident under section 236 of the Immigration and Nationality Act, 8 U.S.C. § 1226 (Supp. II 1996), and 8 C.F.R. §3.19(h)(2)(ii) (1999), a lawful permanent resident will not be considered "properly included" in a mandatory detention category when an Immigration Judge or the Board of Immigration Appeals finds, on the basis of the bond record as a whole, that it is substantially unlikely that the Immigration and Naturalization Service will prevail on a charge of removability specified in section 236(c)(1) of the Act.

(2) Although a conviction document may provide the Service with sufficient reason to believe that an alien is removable under one of the mandatory detention grounds for purposes of charging the alien and making an initial custody determination, neither the Immigration Judge nor the Board is bound by the Service’s decisions in that regard when determining whether an alien is properly included within one of the regulatory provisions that would deprive the Immigration Judge and the Board of jurisdiction to redetermine the custody conditions imposed on the alien by the Service. Matter of Joseph, 22 I&N Dec. 660 (BIA 1999), clarified.

(3) When an Immigration Judge’s removal decision precedes the determination, pursuant to 8 C.F.R. § 3.19(h)(2)(ii), whether an alien is "properly included" in a mandatory detention category, the removal decision may properly form the basis for that determination.

(4) An automatic stay of an Immigration Judge’s release order that has been invoked by the Service pursuant to 8 C.F.R. § 3.19(i)(2) is extinguished by the Board’s decision in the Service’s bond appeal from that release order.

Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999)

(1) Section 236(c) of the Immigration and Nationality Act, 8U.S.C. §1226(c) (Supp. II 1996), does not apply to aliens whose most recent release from custody by an authority other than the Immigration and Naturalization Service occurred prior to the expiration of the Transition Period Custody Rules.

(2) Custody determinations of aliens in removal proceedings who are not subject to the provisions of section 236(c) of the Act are governed by the general custody provisions at section 236(a) of the Act.

(3) By virtue of 8 C.F.R. § 236.1(c)(8) (1999), a criminal alien in a custody determination under section 236(a) of the Act must establish to the satisfaction of the Immigration Judge and the Board of Immigration Appeals that he or she does not present a danger to property or persons.

(4) When an Immigration Judge bases a bond determination on evidence presented in the underlying merits case, it is the responsibility of the parties and the Immigration Judge to ensure that the bond record establishes the nature and substance of the specific factual information considered by the Immigration Judge in reaching the bond determination.

Matter of Rojas, 23 I&N Dec. 117 (BIA 2001)

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.

Matter of Kotliar, 24 I&N Dec. 124 (BIA 2007)

(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.

Matter of Saysana, 24 I&N Dec. 602 (BIA 2008)

(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.

National Security Considerations

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

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

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

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

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

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

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

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

Pending Appeals

Matter of Valles, 21 I&N Dec. 769 (BIA 1997)

(1) An Immigration Judge maintains continuing jurisdiction to entertain bond redetermination requests by an alien even after the timely filing of an appeal with the Board of Immigration Appeals from a previous bond redetermination request.

(2) If, after a bond appeal has been filed by the alien, the Immigration Judge grants an alien’s bond redetermination request, that appeal is rendered moot, and the Board will return the record to the Immigration Court promptly.

Standards

Matter of Guerra, 24 I&N Dec. 37 (BIA 2006)

(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.

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.

Terrorists

Matter of Khalifah, 21 I&N Dec. 107 (BIA 1995)

An alien subject to criminal proceedings for alleged terrorist activities in the country to which the Immigration and Naturalization Service seeks to deport him is appropriately ordered detained without bond as a poor bail risk.

Transition Period Custody Rules (TPCR)

Matter of Noble, 21 I&N Dec. 672 (BIA 1997)

(1) Bond redeterminations of detained deportable aliens convicted of an aggravated felony are governed by the Transition Period Custody Rules of section 303(b)(3) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, enacted as Division C of the Departments of Commerce, Justice, and State, and the Judiciary Appropriations Act for 1997, Pub. L. No. 104-208, 110 Stat. 3009, (enacted Sept. 30, 1996), irrespective of how or when the alien came into immigration custody.

(2) Aliens deportable on aggravated felony grounds are eligible for release from immigration custody under the Transition Period Custody Rules, provided the alien can demonstrate that he or she was either lawfully admitted or cannot be removed because the designated country will not accept him or her, will not pose a danger to safety of persons or of property, and will likely appear for any scheduled proceeding.

Matter of Valdez, 21 I&N Dec. 703 (BIA 1997)

(1) The Transition Period Custody Rules invoked on October 9, 1996, govern bond redeterminations of aliens falling within the nonaggravated felony criminal grounds of deportation covered in those rules, regardless of when the criminal offenses and convictions occurred.

(2) The Transition Period Custody Rules govern bond redetermination appeals of otherwise covered criminal aliens who are not now in custody by virtue of immigration bond rulings rendered prior to the October 9, 1996, invocation of those rules.

Matter of Melo, 21 I&N Dec. 883 (BIA 1997)

(1) In bond proceedings under the Transition Period Custody Rules, the standards set forth in Matter of Drysdale, 20 I&N Dec. 815 (BIA 1994), apply to the determinations of whether the alien's release pending deportation proceedings will pose a danger to the safety of persons or of property and whether he or she is likely to appear for any scheduled proceeding.

(2) The "is deportable" language as used in the Transition Period Custody Rules does not require that an alien have been charged and found deportable on that deportation ground. Matter of Ching, 12 I&N Dec. 710 (BIA 1968); and Matter of T-, 5 I&N Dec. 459 (BIA 1953), distinguished.

(3) The Transition Period Custody Rules do not limit "danger to the safety of persons or of property" to the threat of direct physical violence; the risk of continued narcotics trafficking also constitutes a danger to the safety of persons.

Matter of West, 22 I&N Dec. 1405 (BIA 2000)

The mandatory detention provisions of section 236(c) of the Immigration and Nationality Act, 8 U.S.C. §1226(c) (Supp. IV 1998), do not apply to an alien who was convicted after the expiration of the Transition Period Custody Rules (“Transition Rules”), but who was last released from the physical custody of state authorities prior to the expiration of the Transition Rules and who was not physically confined or restrained as a result of that conviction.

DUE PROCESS

Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011)

Until an alien who is arrested without a warrant is placed in formal proceedings by the filing of a Notice to Appear (Form I-862), the regulation at 8 C.F.R. § 287.3(c) (2011) does not require immigration officers to advise the alien that he or she has a right to counsel andthat any statements made during interrogation can subsequently be used against the alien.

EXCLUSION PROCEEDINGS

Adjustment of Status

Matter of Castro, 21 I&N Dec. 379 (BIA 1996)

(1) In exclusion proceedings, jurisdiction over an alien's application for adjustment of status generally lies with the district director of the Immigration and Naturalization Service.

(2) The regulations at 8 C.F.R. §§ 245.2(a) and 236.4 (1994) grant limited jurisdiction to the Immigration Judge in exclusion proceedings to adjudicate adjustment applications that have been denied by the district director, but only if the alien, after first having been inspected and admitted into the United States, had applied to adjust status and then departed the country under a grant of advance parole.

Asylum

Matter of G-A-C-, 22 I&N Dec. 83 (BIA 1998)

An applicant for asylum who departed the United States after having been granted an advance authorization for parole, and who, on his return, was paroled into this country under the provisions of section 212(d)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1182(d)(5) (Supp. V 1993), was properly placed in exclusion proceedings following the Immigration and Naturalization Service’s denial of his application for asylum and revocation of his parole. Navarro-Aispura v. INS, 53 F.3d 233 (9th Cir. 1995); and Barney v. Rogers, 83 F.3d 318 (9th Cir. 1996), distinguished.

Matter of A-N- & R-M-N-, 22 I&N Dec. 953 (BIA 1999)

Aliens seeking to reopen exclusion proceedings to apply for asylum and withholding of deportation who have presented evidence establishing materially changed circumstances in their homeland or place of last habitual residence, such that they meet the general requirements for motions to reopen, need not demonstrate "reasonable cause" for their failure to appear at the prior exclusion hearing.

In Absentia Proceedings

Matter of N-B-, 22 I&N Dec. 590 (BIA 1999)

The regulatory language at 8 C.F.R. § 3.23(b)(4)(iii)(B) (1998) contains no time or numerical limitations on aliens who wish to file a motion to reopen exclusion proceedings conducted in absentia.

Motion to Terminate Proceedings

Matter of Singh, 21 I&N Dec. 427 (BIA 1996)

A returning applicant for legalization under section 245A of the Immigration and Nationality Act, 8 U.S.C. § 1255a (1988 & Supp. III 1991), may not, by virtue of his membership in the class action suit of Catholic Social Services v. Meese, 685 F. Supp. 1149 (E.D.Cal.1988), aff'd sub nom. Catholic Social Services v. Thornburgh, 956 F.2d 914 (9th Cir.1992), vacated sub nom. Reno v. Catholic Social Services, 509 U.S. 43 (1993), successfully file a motion to terminate exclusion proceedings based on the doctrine set forth in Rosenberg v. Fleuti, 374 U.S. 449 (1963).

Parole

Matter of S-O-S-, 22 I&N Dec. 107 (BIA 1998)

In cases falling within the jurisdiction of the United States Court of Appeals for the Ninth Circuit, exclusion proceedings are appropriate for aliens returning to the United States under a grant of advance parole, with two exceptions. Those exceptions are aliens with pending registry applications and those not specifically informed by the Immigration and Naturalization Service that they risk being placed in exclusion proceedings upon reentry. Matter of Torres, 19 I&N Dec. 371 (BIA 1986), modified.

EXPEDITED REMOVAL

Claimed Status Review

Matter of Lujan-Quintana, 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.

FIREARMS OFFENSES

Matter of Saint John, 21 I&N Dec. 593 (BIA 1996)

An alien convicted of attempting or conspiring to commit a firearms violation is deportable under section 241(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. §1251(a)(2)(C) (1994), which applies retroactively to convictions entered before, on, or after October 25, 1994. Matter of Hou, 20 I&N Dec. 513 (BIA 1992), superseded.

Matter of Luviano, 23 I&N Dec. 718 (A.G. 2005) (decided by Board February 29, 1996; decided by Attorney General January 18, 2005)

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.

Matter of Teixeira, 21 I&N Dec. 316 (BIA 1996)

(1) Where the statute under which an alien was convicted encompasses offenses that constitute firearms violations and offenses that do not, the Board of Immigration Appeals looks to the record of conviction, and to other documents admissible as evidence in proving a criminal conviction, to determine whether the specific offense of which the alien was convicted constitutes a firearms violation within the meaning of section 241(a)(2)(C) of Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(C) (Supp. V 1993).

(2) A police report, standing alone, is not part of a "record of conviction," nor does it fit any of the regulatory descriptions found at 8 C.F.R. § 3.41 (1995) for documents that are admissible as evidence in any proceeding before an Immigration Judge in proving a criminal conviction, and it therefore should not be considered in determining whether the specific offense of which an alien was convicted constituted a firearms violation.

(3) Although a police report concerning circumstances of arrest that is not part of a record of conviction is appropriately admitted into evidence for the purpose of considering an application for discretionary relief, it should not be considered for the purpose of determining deportability where the Act mandates a focus on a criminal conviction, rather than on conduct.

Matter of Madrigal, 21 I&N Dec. 323 (BIA 1996)

(1) Where the statute under which an alien has been convicted encompasses offenses that constitute firearms violations and offenses that do not, the Immigration and Naturalization Service must establish through the record of conviction, and other documents admissible as evidence in proving a criminal conviction, that the specific offense of which the alien was convicted constitutes a firearms violation within the meaning of section 241(a)(2)(C) of Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(C) (1994).

(2) The transcript from the respondent's plea and sentence hearing, during which the respondent admitted possession of a firearm, is part of the record of conviction and, consequently, was sufficient to establish that the respondent had been convicted of a firearms offense and was deportable under section 241(a)(2)(C) of the Act.

(3) The respondent's right to counsel was not violated where the Immigration Judge properly informed the respondent of his right to counsel and provided him with adequate opportunity to obtain representation.

Matter of Pichardo, 21 I&N Dec. 330 (BIA 1996)

(1) Where the statute under which an alien has been convicted encompasses offenses that constitute firearms violations and offenses that do not, the Board of Immigration Appeals will look beyond the statute, but only to consider such facts which appear from the record of conviction, or other documents admissible under federal regulations as evidence in proving a criminal conviction, to determine whether the specific offense for which the alien was convicted constitutes a firearms violation within the meaning of section 241(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(C) (1994).

(2) Where the only criminal court document offered into the record to prove an alien's deportability under section 241(a)(2)(C) of the Act consists of a Certificate of Disposition which fails to identify the subdivision under which the alien was convicted or the weapon that he was convicted of possessing, deportability has not been established, even where the alien testifies that the weapon in his possession at the time of his arrest was a gun, since it is the crime that the alien was convicted of rather than a crime that he may have committed which determines whether he is deportable.

Matter of Mendez-Orellana, 25 I&N Dec. 254 (BIA 2010)

(1) In removal proceedings, the antique firearm exception in 18 U.S.C. § 921(a)(3) (2006) is an affirmative defense that must be sufficiently raised by an alien charged under section 237(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(C) (2006), as an alien who has been convicted of an offense involving a firearm.

(2) Where the Department of Homeland Security has presented evidence that an alien has been convicted of an offense involving a firearm, it has met its burden of presenting clear and convincing evidence of deportability, and the burden then shifts to the respondent to show that the weapon was, in fact, antique.

FOREIGN POLICY GROUNDS DEPORTABILITY

Adverse Foreign Policy Consequences

Matter of Ruiz-Massieu, 22 I&N Dec. 833 (BIA 1999)

(1) In order to establish deportability under section 241(a)(4)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. §1251(a)(4)(C)(i) (1994), the Immigration and Naturalization Service has the burden of proving by clear, unequivocal, and convincing evidence that the Secretary of State has made a facially reasonable and bona fide determination that an alien’s presence or activities in the United States would have potentially serious adverse foreign policy consequences for the United States.

(2) A letter from the Secretary of State conveying the Secretary’s determination that an alien’s presence in this country would have potentially serious adverse foreign policy consequences for the United States, and stating facially reasonable and bona fide reasons for that determination, is presumptive and sufficient evidence that the alien is deportable under section 241(a)(4)(C)(i) of the Act, and the Service is not required to present additional evidence of deportability.

(3) The Government is not required to permit an alien who is deemed to be deportable under section 241(a)(4)(C)(i) of the Act to depart the United States voluntarily prior to the initiation of deportation proceedings where the alien’s presence is pursuant to his voluntary decision to enter or seek admission to this country. Matter of Badalamenti, 19 I&N Dec. 623 (BIA 1988); Matter of Yam, 16I&N Dec. 535 (BIA 1978); Matter of C-C-, 3 I&N Dec. 221 (BIA 1948), distinguished.

(4) Extradition proceedings are separate and apart from deportation proceedings and the Government’s success or failure in obtaining an order of extradition has no effect on deportation proceedings. Matter of McMullen, 17 I&N Dec. 542 (BIA 1980), rev’d on other grounds, 658 F.2d 1312 (9th Cir. 1981), on remand, Matter of McMullen, 19 I&N Dec. 90 (BIA 1984), aff’d, 788 F.2d 591 (9th Cir. 1986), followed.

Espionage

Matter of Luis, 22 I&N Dec. 747 (BIA 1999)

(1) Section 241(a)(4)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(4)(A)(i) (1994), which provides for the deportability of any alien who after entry has engaged in Aany activity to violate any law of the United States relating to espionage,@ does not require evidence that the alien was either engaged in an act of espionage or was convicted of violating a law relating to espionage.

(2) An alien who has knowledge of, or has received instruction in, the espionage or counter-espionage service or tactics of a foreign government in violation of 50 U.S.C. § 851 (1994), is deportable under section 241(a)(4)(A)(i) of the Act.

GOOD MORAL CHARACTER

Matter of R-S-J-, 22 I&N Dec. 863 (BIA 1999)

For purposes of section 101(f)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1101(f)(6) (1994), false oral statements under oath to an asylum officer can constitute false testimony as defined by the United States Court of Appeals for the Ninth Circuit in Phinpathya v. INS, 673 F.2d 1013 (9th Cir. 1981), rev’d on other grounds, 464 U.S. 183 (1984).

Matter of Ortega-Cabrera, 23 I&N Dec. 793 (BIA 2005)

(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.

Matter of Guadarrama, 24 I&N Dec. 625 (BIA 2008)

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.

IN ABSENTIA PROCEEDINGS

Custody

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.”

Exceptional Circumstances

Matter of Grijalva, 21 I&N Dec. 472 (BIA 1996)

An order of deportation issued following a hearing conducted in absentia may be rescinded under section 242B(c)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1252b(c)(3)(Supp. V 1993), where an alien properly establishes that his failure to appear was the result of ineffective assistance of counsel which amounts to "exceptional circumstances" within the meaning of section 242B(f)(2) of the Act.

Matter of S-A-, 21 I&N Dec. 1050 (BIA 1997) (Traffic)

An applicant’s general assertion that he was prevented from reaching his hearing on time by heavy traffic does not constitute reasonable cause that would warrant reopening of his in absentia exclusion proceedings.

Matter of Ali, 21 I&N Dec. 1058 (BIA 1997) (Illness and Injury)

Neither an alien’s long-standing minor illness existing prior to a grant of voluntary departure nor an allegation of serious illness to others, including family members, establishes the requisite exceptional circumstances under section 242B(f)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1252b(f)(2) (1994), in the absence of evidence specifying how such circumstances resulted in the alien’s failure to depart, which renders him or her ineligible for certain forms of discretionary relief from deportation under section 242B(e)(2) of the Act.

Matter of J-P-, 22 I&N Dec. 33 (BIA 1998) (Illness and Injury)

An alien failed to establish that a serious headache he suffered on the day of his deportation hearing amounted to exceptional circumstances to excuse his failure to appear within the meaning of section 242B(f)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1252b(f)(2)(1994), where he gave no explanation for neglecting to contact the Immigration Court on the day of the hearing and did not support his claim with medical records or other evidence, such as affidavits by persons with knowledge regarding the extent and seriousness of the alien’s headache and the remedies he used to treat it.

Matter of S-M-, 22 I&N Dec. 49 (BIA 1998) (Illegible Hearing Date)

An alien who claimed that his failure to appear at his deportation hearing resulted from an “illegible hearing date” on the Order to Show Cause and Notice of Hearing (Form I-221) failed to establish by sufficient evidence that he received inadequate notice of the hearing under section 242B(c)(3)(B) of the Immigration and Nationality Act, 8 U.S.C. §1252b(c)(3)(B)(1994), or that his absence was the result of exceptional circumstances under section 242B(c)(3)(A) of the Act.

Matter of B-A-S-, 22 I&N Dec. 57 (BIA 1998) (Illness and Injury)

An alien failed to establish that a foot injury he suffered on the day before his deportation hearing amounted to exceptional circumstances to excuse his failure to appear within the meaning of section 242B(f)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1252b(f)(2)(1994), where he gave no explanation for neglecting to contact the Immigration Court before the hearing and did not support his claim with medical records or other evidence, such as an affidavit from his employer.

Exclusion Proceedings

Matter of N-B-, 22 I&N Dec. 590 (BIA 1999)

The regulatory language at 8 C.F.R. § 3.23(b)(4)(iii)(B) (1998) contains no time or numerical limitations on aliens who wish to file a motion to reopen exclusion proceedings conducted in absentia.

Immigration Judges

Matter of W-F-, 21 I&N Dec. 503 (BIA 1996)

(1) The provisions of section 242B of the Immigration and Nationality Act, 8 U.S.C. § 1252b (1994), apply any time an alien, whose presence has not been excused by the Immigration Judge, fails to appear for a deportation hearing after proper notice has been issued pursuant to section 242B, regardless of whether the issue of deportability has already been addressed or resolved and regardless of whether the alien has someone else appear on his behalf.

(2) An Immigration Judge retains the authority to properly excuse an alien's presence at a hearing, to grant a continuance, or to change venue for good cause shown by the alien or the Immigration and Naturalization Service either prior to or at the time of the deportation hearing.

(3) If an alien's presence at a deportation hearing has not been excused, and any request for a rescheduling of the hearing has been denied, the provisions of section 242B apply and a challenge to the entry of an in absentia deportation order based on the alien's failure to appear is governed by the "rescission" provisions of section 242B(c)(3) of the Act.

Ineffective Assistance of Counsel

Matter of Rivera, 21 I&N Dec. 599 (BIA 1996)

An alien seeking to reopen in absentia proceedings based on her unsuccessful communications with her attorney did not establish exceptional circumstances pursuant to section 242B(c)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. §1252b(c)(3)(A) (1994), where she failed to satisfy all of the requirements for an ineffective assistance of counsel claim set out in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff'd, 857 F.2d 10 (1st Cir. 1988).

Matter of N-K-/V-S-, 21 I&N Dec. 879 (BIA 1997)

A claim of ineffective assistance of counsel can, if the applicant meets the requirements set forth in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), form the basis of a successful motion to reopen exclusion proceedings where the applicant was ordered excluded in an in absentia hearing.

Matter of Lei, 22 I&N Dec. 113 (BIA 1998)

A claim of ineffective assistance of counsel does not constitute an exception to the 180-day statutory limit for the filing of a motion to reopen to rescind an in absentia order of deportation under section 242B(c)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. §1252b(c)(3)(A) (1994), on the basis of exceptional circumstances.

Matter of A-A-, 22 I&N Dec. 140 (BIA 1998)

A claim of ineffective assistance of counsel does not constitute an exception to the 180-day statutory limit for the filing of a motion to reopen to rescind an in absentia order of deportation under section 242B(c)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. §1252b(c)(3)(A) (1994), on the basis of exceptional circumstances.

Jurisdiction

Matter of Guzman, 22 I&N Dec. 722 (BIA 1999)

The Board of Immigration Appeals lacks jurisdiction to consider an appeal from an in absentia order in removal proceedings where section 240(b)(5)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(5)(C) (Supp. II 1996), provides that such an order may only be rescinded by filing a motion to reopen with the Immigration Judge. Matter of Gonzalez-Lopez, 20 I&N Dec. 644 (BIA 1993), followed.

Notice to Alien

Matter of Grijalva, 21 I&N Dec. 27 (BIA 1995)

(1) Under section 242B(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1252b(a)(1) (Supp. V 1993), service of the Order to Show Cause (Form I-221) must be given in person to the respondent or, if personal service is not practicable, such notice must be given by certified mail to the respondent or to his counsel of record, if any, with the requirement that the certified mail receipt be signed by the respondent or a responsible person at the respondent’s address to accomplish personal service. Matter of Huete, 20 I&N Dec. 250 (BIA 1991), followed.

(2) Under sections 242B(a)(2) and (c)(1) of the Act, written notice of the deportation proceedings sent by certified mail to the respondent at the last address provided by the respondent is sufficient to establish proper service by clear, unequivocal, and convincing evidence. Proof of actual service or receipt of the notice by the respondent is not required to effect service. It is incumbent upon the respondent to provide an address where he can receive mail in a regular and timely manner.

(3) For purposes of section 242B(a)(2) of the Act, “in person” service of the notice of deportation proceeding is deemed “not practicable” when the respondent is not in immigration court before the Immigration Judge.

(4) In cases where service of a notice of a deportation proceeding is sent by certified mail through the United States Postal Service and there is proof of attempted delivery and notification of certified mail, a strong presumption of effective service arises which only may be overcome by the affirmative defense of nondelivery or improper delivery by the Postal Service.

Matter of Powell, 21 I&N Dec. 81 (BIA 1995)

(1) Under section 242B(e)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1252b(e)(3) (1994), an alien who has received oral notice in the alien’s native language or in another language the alien understands and written notice in the final order of deportation of the consequences for failing to appear for deportation, and who nevertheless fails to appear for deportation at the time and place ordered, other than because of exceptional circumstances, is ineligible for adjustment of status under section 245 of the Act, 8 U.S.C. § 1255 (1994), for a period of 5 years after the date the alien was required to appear for deportation.

(2) When the Board of Immigration Appeals dismisses an appeal from an order of deportation issued an Immigration Judge, the Immigration Judge’s order becomes the final order of deportation on the date of the Board’s decision.

(3) Written notice of the consequences of an alien’s failure to appear for deportation, provided in conjunction with an Immigration Judge’s final order of deportation, constitutes the written notice required by section 242B(e)(3) of the Act.

Matter of Villalba, 21 I&N Dec. 842 (BIA 1997) (Order to Show Cause Warnings)

(1) Language contained in the Order to Show Cause and Notice of Hearing (Form I-221), which provides that notice of deportation hearings will be sent only to a respondent’s last known address and that failure to provide an address may result in an in absentia hearing, is a reasonable construction of the notice requirements set forth in section 242B of the Immigration and Nationality Act, 8 U.S.C. § 1252b (1994).

(2) The prohibition set forth in Purba v. INS, 884 F.2d 516 (9th Cir. 1989), that a deportation hearing may not be conducted telephonically absent a respondent’s affirmative waiver of the right to appear in person, does not apply in properly conducted in absentia proceedings.

Matter of Mancera, 22 I&N Dec. 79 (BIA 1998) (Proceedings under former section 242(b))

A motion to reopen deportation proceedings conducted in absentia pursuant to section 242(b) of the Immigration and Nationality Act, 8 U.S.C. § 1252(b)(1994), that demonstrates a lack of notice of the scheduled hearing is excepted from the regulatory time limitations on motions.

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

(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.

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

(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 isreturned 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.

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

(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.

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

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.

Matter of Anyelo, 25 I&N Dec. 337 (BIA 2010)

The holding in Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001), as to the notice required to authorize the entry of an in absentia order, is applicable to cases arising in the Eleventh Circuit. Dominguez v. U.S. Att’y Gen., 284 F.3d 1258 (11th Cir. 2002), distinguished.

Section 242(b) Proceedings

Matter of Cruz-Garcia, 22 I&N Dec. 1155 (BIA 1999)

(1) The regulation at 8 C.F.R. §3.23(b)(4)(iii) (1998) imposes no time or numerical limitation on aliens seeking to reopen deportation proceedings conducted in absentia pursuant to section 242(b) of the Immigration and Nationality Act, 8 U.S.C. §1252(b) (1988). Matter of Mancera, 22 I&N Dec. 79 (BIA 1998), reaffirmed.

(2) When an alien seeks to reopen deportation proceedings conducted in absentia pursuant to section 242(b) of the Act, it is appropriate to apply the “reasonable cause” standard, not the “exceptional circumstances” standard set forth in section 242B of the Act, 8U.S.C. § 1252b (Supp. II 1990).

(3) An alien who asserted for the first time on appeal that her failure to appear at a deportation hearing was the result of ineffective assistance of counsel, but who failed to comply with the requirements for such a claim, has not shown “reasonable cause” that warrants reopening of the proceedings.

Stays

Matter of Rivera, 21 I&N Dec. 232 (BIA 1996)

The automatic stay of deportation associated with the filing of a motion to reopen an in absentia hearing pursuant to section 242B(c)(3) of the Immigration and Nationality Act, 8 U.S.C. 1252b(c)(3)(1994), continues during the pendency of an appeal from the denial of such a motion.

Termination

Matter of Sanchez-Herbert, 26 I&N Dec. 43 (BIA 2012)

Where an alien fails to appear for a hearing because he has departed the United States, termination of the pending proceedings is not appropriate if the alien received proper notice of the hearing and is removable as charged.

Voluntary Departure

Matter of Singh, 21 I&N Dec. 998 (BIA 1997)

Matter of Shaar, 21 I&N Dec.3290 (BIA 1996), is not applicable to an alien who was ordered deported at an in absentia hearing and has therefore not remained beyond a period of voluntary departure; consequently, the proceedings may be reopened upon the filing of a timely motion showing exceptional circumstances for failure to appear. Matter of Shaar, supra, distinguished.

Warnings for Failure to Appear

Matter of M-S-, 22 I&N Dec. 349 (BIA 1998)

(1) Where an alien who did not receive oral warnings of the consequences of failing to appear at a deportation hearing pursuant to section 242B(a) of the Immigration and Nationality Act, 8 U.S.C. § 1252b(a) (1994), moves to reopen deportation proceedings held in absentia under section 242B(c) of the Act in order to apply for a form of relief that was unavailable at the time of the hearing, the rescission requirements prescribed by section 242B(c)(3) of the Act are not applicable. Instead, the motion to reopen is subject to the regulatory requirements set forth at 8 C.F.R. §§3.2(c) 3.23(b)(3) (1998).

2) Where deportation proceedings held in absentia are reopened to allow for an application for new relief, the Immigration Judge must determine in each individual case the weight to be accorded to the alien’s explanation for failing to appear at the hearing and whether such explanation is a favorable or adverse factor with respect to the ultimate discretionary determination.

IN ADMISSIBILITY

Controlled Substance Violation

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 IN ADMISSIBILITY 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.”

Falsely Claiming Citizenship (Section 212(a)(6)(C)(ii))

Matter of Barcenas-Barrera, 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.

Prostitution (Section 212(a)(2)(D))

Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008)

(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 IN ADMISSIBILITY 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.

INEFFECTIVE ASSISTANCE OF COUNSEL

Advice to Client

Matter of B-B-, 22 I&N Dec. 309 (BIA 1998)

Where counsel’s insistence on corroborating evidence discouraged the respondents from seeking asylum, but was reasonable in light of case precedent, there is no showing of ineffective assistance of counsel.

In Absentia Proceedings

Matter of Rivera, 21 I&N Dec. 599 (BIA 1996)

An alien seeking to reopen in absentia proceedings based on her unsuccessful communications with her attorney did not establish exceptional circumstances pursuant to section 242B(c)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. §1252b(c)(3)(A) (1994), where she failed to satisfy all of the requirements for an ineffective assistance of counsel claim set out in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff'd, 857 F.2d 10 (1st Cir. 1988).

Matter of N-K-/V-S-, 21 I&N Dec. 879 (BIA 1997)

A claim of ineffective assistance of counsel can, if the applicant meets the requirements set forth in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), form the basis of a successful motion to reopen exclusion proceedings where the applicant was ordered excluded in an in absentia hearing.

Matter of Lei, 22 I&N Dec. 113 (BIA 1998)

A claim of ineffective assistance of counsel does not constitute an exception to the 180-day statutory limit for the filing of a motion to reopen to rescind an in absentia order of deportation under section 242B(c)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. §1252b(c)(3)(A) (1994), on the basis of exceptional circumstances.

Matter of A-A-, 22 I&N Dec. 140 (BIA 1998)

A claim of ineffective assistance of counsel does not constitute an exception to the 180-day statutory limit for the filing of a motion to reopen to rescind an in absentia order of deportation under section 242B(c)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. §1252b(c)(3)(A) (1994), on the basis of exceptional circumstances.

Standards

Matter of Assaad, 23 I&N Dec. 553 (BIA 2003)

(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.

Matter of Compean, 24 I&N Dec. 710 (A.G. 2009)

(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. Tothe extent the Board’sdecisions in Matter of Lozada, 19 I&N Dec. 637 (BIA1988), 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 documents alone. Whether an alien has made a sufficient showing to warrant relief based 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.

Matter of 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.

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