Volume 29

Based on the facts and evidence in this case, the applicant, a former MS-13 gang member, has not met his burden to show he will more likely than not be tortured in El Salvador based on the government’s state of exception policy.

(1)  Where a particular social group is defined by “former” status, Immigration Judges must ensure the persecutor’s conduct was based on a desire to overcome or animus toward the respondent’s membership in a group defined specifically by that former status, not retribution for conduct the respondent engaged in while a current member of the group.

(2)  Acquiescence in the context of protection under the Convention Against Torture requires a greater degree of governmental complicity than is required to establish a government is unable or unwilling to protect a respondent in the asylum context.

When an Immigration Judge issues an oral decision, the 30-day appeal filing period is calculated from the date the decision is rendered and is unaffected by the subsequent mailing of a memorandum summarizing the oral decision.

The time of conviction is the relevant point for determining whether a respondent’s State conviction is for a controlled substance offense under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2018), not the time the respondent’s removability is adjudicated in immigration proceedings.

(1) An Immigration Judge is not required to consider an Application for Asylum and for Withholding of Removal (Form I-589) on the merits if it is incomplete, and incomplete applications may be considered waived or abandoned, particularly where an opportunity to cure has been offered.

(2) Because declarations are not a constituent part of an asylum application, a Form I-589 is not incomplete, and an Immigration Judge may not deem it abandoned, solely because the respondent did not submit a declaration. Matter of Interiano-Rosa, 25 I&N Dec. 264 (BIA 2010), reaffirmed.

The evidence of post-conviction relief under section 1473.7 of the California Penal Code that the respondent submitted in support of his motion to remand does not demonstrate that his conviction was vacated for a procedural or substantive defect in the underlying criminal proceedings and not for reasons of rehabilitation or immigration hardship.

(1) Proximity in time is necessary but not sufficient to conclude that two crimes arise from a single scheme of criminal misconduct under section 237(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(ii) (2018).  Matter of Adetiba, 20 I&N Dec. 506, 509 (BIA 1992), clarified.

(2) Two crimes involving moral turpitude, premised on separate turpitudinous acts with different objectives, neither of which was committed in the course of accomplishing the other, constitute separate schemes of criminal misconduct.