Volume 29

(1) Perceived or imputed membership in a proposed particular social group will only satisfy the particular social group requirements if the underlying group of which the respondent is perceived to be a member is, standing alone, sufficiently cognizable.

(2) The respondent’s proposed particular social group, defined as “perceived Salvadoran gang members,” is not cognizable within the meaning of the Immigration and Nationality Act.  Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008), reaffirmed.

The respondent’s recent convictions involving unlawful sexual conduct with a minor, combined with the probation officer’s report submitted for the purpose of sentencing, show that the respondent is a danger to the community.

Section 2C:35-5(b)(4) of the New Jersey Statutes Annotated is divisible by controlled substance, and applying the modified categorical approach, the respondent’s record of conviction identifies the relevant substance as fentanyl, a federally controlled substance.  Matter of Laguerre, 28 I&N Dec. 437 (BIA 2022), followed.

Evidence that the Uzbek Government is pursuing charges of terrorist activity against the respondent, that he will be detained upon removal, and that there are isolated incidents of torture does not establish that he will more likely than not be tortured where there is insufficient evidence that he will be prosecuted for illegitimate reasons.

The respondent’s convictions for endangering the welfare of a child, combined with the respondent’s conduct as described in the charging document and the victim’s statement, demonstrate that the respondent does not warrant a favorable exercise of discretion.

Circumstantial evidence of similarities in allegedly pro se filings and suspended counsel’s involvement in the mailing of documents to the Immigration Courts and DHS can constitute clear and convincing evidence that counsel practiced law in violation of a disciplinary order of suspension.

If the factual allegations underlying a claim for asylum, withholding of removal, or protection under the Convention Against Torture, viewed in the light most favorable to the respondent, do not establish prima facie eligibility for relief or protection, an Immigration Judge may pretermit the applications without a full evidentiary hearing on the merits of the claim.

In assessing whether the respondent warranted a favorable exercise of discretion, the Immigration Judge exceeded his authority to consider the circumstances of the respondent’s conviction by making an adverse credibility finding regarding the respondent’s two child victims and in effect finding the respondent factually innocent of the crime.

Based on the plain language of section 235(b)(2)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b)(2)(A) (2018), Immigration Judges lack authority to hear bond requests or to grant bond to aliens who are present in the United States without admission.

(1)  In bond proceedings, the existence of a valid, reliable, and credible sponsor is relevant to the determination of flight risk. 

(2)  Immigration Judges may take into consideration all relevant and probative evidence, regardless of which party filed it, to determine if the evidence establishes custody factors.

Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) is overruled, and immigration judges and the Board shall adhere to Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), and Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021), in all pending or future cases. By extension, Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), and any decision issued in reliance thereupon is also overruled.

The Attorney General referred the decision of the Board of Immigration Appeals to herself for review of its decision.  

Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021), is overruled, and immigration judges and the Board should adhere to the holding of Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019), in all pending and future claims. 

The Attorney General referred the decision of the Board of Immigration Appeals to herself for review of its decision.

An Immigration Judge generally should not continue an individual hearing based on a respondent’s speculative assertion that he or she may be eligible for a new form of relief from removal not previously raised.

Evidence of human rights abuses in Venezuela and past threats to the respondent do not establish an individualized risk of torture where the last threat occurred years before the respondent left the country and the respondent was otherwise unharmed following the threats.  

The respondent has not established the requisite exceptional and extremely unusual hardship to the qualifying relatives based on economic detriment and family separation, particularly where the qualifying relatives will remain in the United States and treatment for their mental health conditions and developmental delays will not be affected by the respondent’s removal. 

(1)  A respondent’s nonresponsive and evasive testimony, including when related to the issue of corroboration, supports an adverse credibility determination.

(2)  A lack of corroboration may be an independent basis to find that a respondent has not met his burden of proof to establish a claim for asylum or withholding of removal.

The respondent’s recent arrest for trafficking in a large quantity of cocaine demonstrates that he is a danger to the community and does not warrant release on bond.

(1)  A non-detained alien who is represented by private counsel is presumed to have the ability to pay any requisite filing fee before the Immigration Judge and the Board.

(2)  A fee waiver request from a non-detained adult alien that contains zeros in all income blocks is presumptively invalid.

Significant discrepancies regarding whether the respondent lives in New York or Michigan and his past failure to file timely change of address notices with the Immigration Court, when considered in the totality of the circumstances, demonstrate that the respondent is a flight risk and does not warrant release on bond.

(1) An Immigration Judge must apply the realistic probability test whenever a party asserts that a State’s statutory definition of a controlled substance is broader than the Federal definition of a controlled substance based on a textual mismatch regarding the isomers of a particular controlled substance. 

(2) Once DHS establishes the existence of a State drug conviction by clear and convincing evidence, a respondent who argues that a State conviction is categorically overbroad based on differing substance or isomer definitions has the burden of demonstrating a realistic probability that the State prosecutes substances falling outside the Federal definition of a controlled substance.

A particular social group defined by the alien’s sex or sex and nationality, standing alone, is overbroad and insufficiently particular to be cognizable.

The applicant’s extensive and lengthy history of immigration law violations, including multiple removals and illegal reentries, demonstrates that she poses a significant flight risk, such that no monetary bond would be sufficient to ensure her appearance at future immigration hearings and, if necessary, her surrender for removal from this country.  

The Immigration Judge erred in concluding that the respondent would more likely than not be tortured in detention in Haiti where the Immigration Judge did not find that his detention would be long term and where the record did not establish that the harsh conditions in Haitian detention were specifically intended to torture.

(1) Use of false or stolen Social Security numbers and providing false information on tax returns are negative considerations that weigh against a favorable exercise of discretion.

(2) When a respondent seeks to excuse conduct by claiming to have relied on professional advice, the respondent should submit evidence of the specific advice given and explain why it was reasonable to rely on such advice.

The Immigration Judge’s predictive findings regarding the harm the respondent will suffer in Russia based on his travel to the United States and his support for Ukraine were speculative, and thus the Immigration Judge erred in granting the respondent’s application for protection under the regulations implementing the Convention Against Torture.

The applicant, a bisexual criminal deportee with visible gang tattoos, has not established an individualized risk of torture in detention in El Salvador.

While explicit statements from the persecutors regarding the protected ground are not required to establish nexus, there must be some showing of a connection between the persecutors’ actions and the protected ground beyond speculation such that the alleged harm is not solely stemming from statistical likelihoods or unfortunate coincidence.

The respondent’s conviction for indecent exposure in violation of section 18.2-387 of the Virginia Code is for a crime involving moral turpitude because the requirement of an “obscene display or exposure” necessarily involves a lewd intent. Matter of Cortes Medina, 26 I&N Dec. 79 (BIA 2013), reaffirmed.

Termination of removal proceedings is not warranted to permit a respondent to seek adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. ‍L. No. 89-732, 80 Stat. 1161, as amended, before United States Citizenship and Immigration Services (“USCIS”) based on speculation that USCIS will grant the respondent parole under section 212(d)(5)(A) of the Immigration and Nationality Act, 8 ‍U.S.C. § 1182(d)(5)(A) (2018).

A grant of withholding of removal that is pending on appeal does not justify release on bond where the factors regarding flight risk weigh strongly against release on bond.

(1)  Because Immigration Judges and the Board have a duty to promptly and fairly bring removal proceedings to a close, whether there are persuasive reasons for a case to proceed and be resolved on the merits is the primary consideration in determining whether administrative closure is appropriate under the totality of the circumstances.  Matter of W‑Y-U-, 27 I&N Dec. 17 (BIA 2017), reaffirmed.

(2) A pending application for Temporary Protected Status generally will not warrant a grant of administrative closure.

The lack of time and place information on the notice to appear does not render untrue or incorrect a respondent’s admission to the factual allegations or invalidate the charges of removability in the notice to appear and therefore is not a proper basis for granting a respondent’s motion to withdraw pleadings.

A supplemental filing to a motion to reopen that raises claims that are fundamentally different from those raised in the original motion is treated as a separate motion.

The Immigration Judge applied the wrong legal standard for protection under the regulations implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994), determining the respondent “could be” subject to torture instead of that he would “more likely than not” be tortured.

The respondent’s release on bond would pose a danger to the community based on his dangerous behavior that subjected a person who was particularly vulnerable because of her age and her familial relationship to the respondent to unlawful sexual conduct. 

Considering the recency and repeated nature of the respondent’s criminal history and the lack of a showing of rehabilitation, we conclude, upon consideration of the totality of the record and a balancing of the factors present in this case, that he has not established that he warrants cancellation of removal as a matter of discretion.

(1)  An applicant for admission who is arrested and detained without a warrant while arriving in the United States, whether or not at a port of entry, and subsequently placed in removal proceedings is detained under section 235(b) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1225(b) (2018), and is ineligible for any subsequent release on bond under section 236(a) of the INA, 8 U.S.C. § 1226(a) (2018).

(2)  An alien detained under section 235(b) of the INA, 8 U.S.C. § 1225(b), who is released from detention pursuant to a grant of parole under section 212(d)(5)(A) of the INA, 8 ‍U.S.C. § 1182(d)(5)(A) (2018), and whose grant of parole is subsequently terminated, is returned to custody under section 235(b) pending the completion of removal proceedings.

The acquiescence standard for protection under the regulations implementing the Convention Against Torture differs from the unable-or-unwilling standard for asylum and withholding of removal; the potential for private actor violence coupled with a speculation that police cannot or will not help is insufficient to prove acquiescence.

(1) Electronic notification of a briefing schedule sent to the email address of record is sufficient notice in a case eligible for electronic filing, regardless of whether an alien’s attorney or accredited representative opens the email or accesses the document via the Executive Office for Immigration Review’s Courts and Appeals (“ECAS”) Case Portal.

(2)  A rebuttable presumption of delivery applies when a party has been sent electronic notification of a briefing schedule through the procedures provided for in the ECAS regulations, but this presumption is weaker than the presumption that applies to documents sent by certified mail because electronic service through ECAS does not involve the use of a signed receipt or other affirmative evidence of delivery.

While an Immigration Judge may consider a State court’s decision as to dangerousness and the amount of bail that was set in criminal proceedings, an Immigration Judge does not owe a State court custody order deference in immigration bond proceedings.

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.