(ID 3101)

Duran, 20 I&N Dec. 1 (BIA 1989)

(1) An immigration judge in deportation proceedings properly denied the respondent's motion to subpoena government records where the respondent failed to comply with the requirements of 8 C.F.R. § 287.4(a)(2) (1984) by not specifically stating what he expected to prove by such documentary evidence and by not affirmatively showing a diligent effort to obtain the records.

(2) While a subpoena is not required in the instant proceedings and access should generally be given to a person in immigration proceedings concerning records maintained about himself, the respondent failed to show compliance with the requirements of 8 C.F.R. § 103.21 (1984) which permit such access.

(ID 3102)

Deris, 20 I&N Dec. 5 (BIA 1989)

For immigration purposes, the Maryland first offender statute, Article 27, section 292 of the Annotated Code of Maryland, which offers favorable treatment to anyone committing his first drug violation regardless of the nature and severity of the offense, is not a counterpart to the federal first offender statute, which is limited in its application to simple possession of a controlled substance; hence, the respondent in deportation proceedings may properly be found deportable for having been convicted by a Maryland state court of a drug violation.

(ID 3103)

Grullon, 20 I&N Dec. 12 (BIA 1989)

(1) A conviction does not exist for immigration purposes where an alien's criminal charges were dismissed without prejudice following his successful completion of a pretrial intervention program prescribed by section 944.025 of the Florida Statutes.

(2) In the absence of a conviction, a respondent in deportation proceedings is not barred from establishing good moral character under section 101(f)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1101(f)(3) (1982), for the purpose of applying for suspension of deportation under section 244(a) of the Act, 8 U.S.C. § 1254(a) (1982).

(ID 3104)

Chen, 20 I&N Dec. 16 (BIA 1989)

(1) An applicant for asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158 (1982), may establish his claim by presenting evidence of past persecution in lieu of evidence of a well-founded fear of persecution.

(2) Where an alien has shown that he has been persecuted in the past on account of race, religion, nationality, membership in a particular social group, or political opinion, the likelihood of present persecution then becomes relevant as to the exercise of discretion, and asylum may be denied as a matter of discre- tion if there is little likelihood of present persecution.

(3) Where past persecution has been established by an applicant for asylum, the Service ordinarily will be obliged to present, as a factor militating against a favorable exercise of administrative discretion, evidence that little likelihood of present persecution exists, or the presiding official(s) may take administrative notice of changed circumstances in a country.

(4) A favorable exercise of administrative discretion in an asylum application may be warranted for humanitarian reasons notwithstanding the fact that there is little likelihood of future persecution.

(ID 3105)

Anselmo, 20 I&N Dec. 25 (BIA 1989)

(1) The United States Court of Appeals for the Ninth Circuit has held that the Equal Access to Justice Act ("EAJA") "covers deportation proceedings before the administrative agency as well as court proceedings reviewing deportation decisions." Escobar Ruiz v. INS, 838 F.2d 1020 (9th Cir. 1988) (en banc).

(2) Although the Board of Immigration Appeals disagrees with the court's holding, the decision of the Ninth Circuit that the EAJA applies to deportation proceedings must be followed in deportation proceedings arising within the jurisdiction of the Ninth Circuit.

(3) The Department of Justice regulations implementing the EAJA should be applied to EAJA attorney fee requests filed in conjunction with deportation proceedings arising within the jurisdiction of the Ninth Circuit.

(ID 3106)

Fede, 20 I&N Dec. 35 (BIA 1989)

(1) A regulation promulgated by the Attorney General has the force and effect of law as to immigration judges and the Board of Immigration Appeals.

(2) As the Attorney General has determined by regulation that immigration proceedings do not come within the scope of the Equal Access to Justice Act, absent a regulatory change or controlling court order, neither an immigration judge nor the Board has authority to consider an application for attorney fees and costs under that Act.

(ID 3107)

Chang, 20 I&N Dec. 38 (BIA 1989)

(1) Implementation of the one couple, one child policy of the Chinese Government is not on its face persecutive and does not create a well-founded fear of persecution on account of one of the five reasons enumerated in section 101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42)(A) (1982), even to the extent that involuntary sterilizations may occur.

(2) An individual claiming asylum for reasons related to the one couple, one child policy must establish that the application of the policy to him was in fact persecutive or that he had a well-founded fear that it would be persecutive because the policy was being selectively applied against members of a particular religious group or was being used to punish individuals for their political opinions or for other reasons enumerated under section 101(a)(42)(A) of the Act.

(3) A person who shows that he opposed the one couple, one child policy but was subjected to it nevertheless has not demonstrated that he was being punished for his opinion as a member of a particular social group (persons opposed to the policy), but rather, there must be evidence that the governmental action arose for a reason other than general population control (for instance, evidence of disparate, more severe treatment for those who publicly oppose the policy).

(4) If the applicant claims that action occurred at the hands of local officials, he must normally show that redress from higher officials was unavailable or that he has a well-founded fear that it would be unavailable.

(5) The policy guidelines announced by Attorney General Meese on August 5, 1988, regarding the one couple, one child policy do not apply to decisions by immigration judges and the Board of Immigration Appeals.

(ID 3108)

Safetran, 20 I&N Dec. 49 (Comm. 1989)

(1) Although not specifically addressed in the regulations, the 5- or 6-year limit of stay imposed on "H-1" and "L-1" nonimmigrant aliens is cumulative; it includes both the time spent in the United States as an "H-1" and as an "L-1" in the same 5- or 6-year period of time.

(2) In order to establish the existence of extraordinary circumstances warranting an extension of temporary stay for a sixth and final year, the petitioner bears the burden of submitting evidence clearly detailing the extreme hardship it will encounter as a result of the termination of the beneficiary's services.

(ID 3109)

Gordon,20 I&N Dec. 52 (BIA 1989)

(1) An alien in deportation proceedings who was found deportable but was granted a waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1982), returns to the same lawful permanent resident status that he previously held.

(2) Notwithstanding the respondent's conviction for a crime committed after a grant of a waiver of inadmissibility, his grant may not be subsequently withdrawn for that reason in a reopened deportation proceeding; the Immigration and Naturalization Service must initiate new deportation proceedings in order to have the immigration judge consider evidence of subsequent criminal activity by the respondent.

(3) While section 212(c) of the Act does not expressly or implicitly provide for revocation or rescission of a grant of a waiver of inadmissibility or a conditional grant of a waiver, an immigration judge may nevertheless reopen proceedings and reconsider his own decision to grant a waiver if he believes that the waiver was erroneously granted in the first instance.

(ID 3110)

Eastern Airlines, Inc., Flight #798, 20 I&N Dec. 57 (BIA 1989)

(1) In fine proceedings under section 273 of the Immigration and Nationality Act, 8 U.S.C. § 1323 (1982), liability cannot be avoided by proof that the alien passenger has lawful permanent resident status if he did not have proper entry documents in his possession at the time of his arrival.

(2) Fine liability cannot be avoided even if the alien was subsequently admitted as a returning lawful permanent resident alien where the alien did not have proper entry documents at the time of his arrival.

(3) Remission of a fine is not warranted where the carrier was correct in believing that the alien passenger had lawful permanent resident status if the alien did not have documents in his possession at the time of his arrival which entitled him to admission on the basis of such status.

(ID 3111)

Walsh and Pollard, 20 I&N Dec. 60 (BIA 1989)

(1) A foreign corporation must have invested or be actively in the process of investing a substantial amount of capital in order to qualify as a treaty investor under section 101(a)(15)(E) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(E) (1982).

(2) Under the treaty investor criteria, no particular dollar amount is required for an investment to be deemed substantial; however, the investment must be in a bona fide business and, in the case of a new business, the investment must not be in a marginal enterprise solely for earning a living but must be of an amount normally considered necessary to establish a viable enterprise of the nature contemplated.

(3) The applicants, who are employed as automotive design engineers by a foreign corporation, do not have supervisory or managerial duties; however, they are highly trained, specially qualified, and essential to the corporation's efficient operation and thus qualify for an "E-2" visa classification even though they are not engaged in developing and directing the qualifying investment.

(ID 3112)

Pineda, 20 I&N Dec. 70 (BIA 1989)

(1) A visa petition filed by a father on behalf of his child who was born out of wedlock was properly denied when the father failed to establish the existence of a bona fide parent-child relationship and thereby failed to establish that the beneficiary was his "child" within the meaning of section 101(b)(1)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(D) (Supp. IV 1986).

(2) In order for an illegitimate child to qualify within the meaning of section 101(b)(1)(D) of the Act, a bona fide parent-child relationship need only exist at the time the visa petition is filed or at some prior point during the life of the child, provided the child is unmarried and less than 21 years of age when the relationship is established.

(3) Congress has provided no guidance on the intended meaning of the phrase "bona fide parent-child relationship," but at minimum there should be some showing of emotional and/or financial ties or an active concern by the father for the child's support, instruction, and general welfare.

(4) Evidence relevant to establishing a bona fide parent-child relationship is varied and widespread in nature and may include money order receipts or cancelled checks showing the petitioner's financial support of the beneficiary; income tax returns; medical or insurance records; school records for the beneficiary; correspondence between the parties; and notarized affidavits of friends, neighbors, school officials, or other knowledgeable associates.

(5) The most persuasive evidence for establishing a bona fide parent-child relationship is documentary evidence which was contemporaneous with the events in question.

(6) Evidence showing that the parent-child relationship was established only after the petitioning father gained lawful permanent resident status and, by extension, the legal right to seek preference status for the beneficiary may be sufficient proof of a bona fide relationship

(ID 3113)

E-M-, 20 I&N Dec. 77 (BIA 1989)

(1) An applicant seeking temporary resident status under section 245A of the Immigration and Nationality Act, 8 U.S.C. § 1255a (Supp. IV 1986), has the burden to prove his eligibility by a preponderance of the evidence.

(2) There is no catch-all definition of the term "preponderance of the evidence." Whether an applicant has submitted sufficient evidence to meet his burden of proof under section 245A of the Act will depend upon the factual circumstances of each case. Generally, however, when something is to be established by a preponderance of evidence it is sufficient that the proof only
establish that it is probably true.

(3) An applicant who submitted an Arrival-Departure Record (Form I-94) and his passport to prove he entered the United States prior to 1982, affidavits from acquaintances and employers to prove his continuous residence in the United States since such a date, and an affidavit explaining why he was unable to submit other documentation has established by a preponderance of the evidence that he has resided continuously in the United States in an unlawful status since prior to January 1, 1982.

(ID 3114)

Fueyo, 20 I&N Dec. 84 (BIA 1989)

(1) Evidence that the respondent was taken into custody and deported by the Immigration and Naturalization Service establishes that she was "arrested and deported" within the meaning of section 212(a)(17) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(17) (1982).

(2) The burden is on the respondent to prove that, following her deportation, she applied for and received consent to reapply for admission to the United States from the Attorney General or his designate.

(3) A nonimmigrant waiver of inadmissibility under section 212(d)(3)(B) of the Act may not be granted nunc pro tunc in deportation proceedings. Matter of P-, 8 I&N Dec. 302 (Asst. Comm. 1959); and Matter of M-, 8 I&N Dec. 285 (R.C., Asst. Comm. 1959), superseded.

(ID 3115)

Rodriguez-Esteban, 20 I&N Dec. 88 (BIA 1989)

The immigration judge and this Board lack jurisdiction in deportation proceedings to reconsider the order of the district director made in rescission proceedings. Matter of Saunders, 16 I&N Dec. 326 (BIA 1977), modified.

(ID 3116)

Ruiz, 20 I&N Dec. 91 (BIA 1989)

(1) Following an in absentia hearing, the underlying relief being sought by way of a motion to reopen is the opportunity to present the applications for relief at a full evidentiary hearing.

(2) Where an alien establishes reasonable cause for his failure to appear at his exclusion hearing, a motion to reopen the proceedings following an in absentia hearing will be granted without requiring that the alien establish prima facie eligibility for asylum or withholding of exclusion and deportation.

(ID 3117)

Cuello, 20 I&N Dec. 94 (BIA 1989)

(1) Where an adoption has been effected, be it intrafamily or otherwise, and the adopted child continues to reside in the same household with the natural parent or parents during the period in which the adoptive parent seeks to establish his or her compliance with the statutory residence requirement of section 101(b)(1)(E) of the Immigration and Nationality Act, 8 U.S.C. §1101(b)(1)(E) (1982), the petitioner has the burden of establishing that the adoptive parent exercised primary parental control during that period of residence.

(2) Evidence of parental control may take many forms, including competent objective evidence that the adoptive parent owns or maintains the property where the child resides, provides financial support and day-to-day care, and assumes responsibility for important decisions in the child's life.

(3) The evidence must clearly establish the physical living arrangements of the adopted child, adoptive parents, and the child's natural parents during the period of time in which the adoptive parent seeks to establish compliance with the residence requirement of the statute and, where a fraudulent or ad hoc adoption is suspected, during any period following the adoption which the adjudicating officer deems appropriate.

(4) Where a petitioner establishes compliance with the statutory requirements of section 101(b)(1)(E) of the Act, demonstrating, where necessary, primary parental control during the parties' residence with one another, the relationship will be presumed bona fide in the absence of evidence indicating otherwise. Matter of Yuen, 14 I&N Dec. 71 (BIA 1972); and Matter of Tang, 14 I&N Dec. 180 (BIA 1972), distinguished.

(ID 3118)

Soleimani, 20 I&N Dec. 99 (BIA 1989)

(1) A finding that an alien was firmly resettled in another country does not render him ineligible for a grant of asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158 (1982), by an immigration judge or the Board of Immigration Appeals. Rosenberg v. Yee Chien Woo, 402 U.S. 49 (1971), distinguished. Matter of Portales, 18 I&N Dec. 239 (BIA 1982); and Matter of Lam, 18 I&N Dec. 15 (BIA 1981), modified.

(2) The Board and immigration judges are not bound by the provisions of 8 C.F.R. §208.8(f)(1)(ii) (1988), which precludes district directors of the Immigration and Naturalization Service from granting asylum under section 208 of the Act to aliens who are firmly resettled in a third country.

(3) An alien's firm resettlement in another country is a factor to be evaluated in determining whether asylum should be granted as a matter of discretion under the standards set forth in Matter of Pula, 19 I&N Dec. 467 (BIA 1987).

(4) A finding that an alien has been firmly resettled in a third country would normally preclude a grant of asylum as a matter of discretion, unless the alien can demonstrate countervailing equities in his favor that are compelling in nature.

(5) Whether or not an outstanding offer of permanent residence or citizenship to all Jews who arrive in Israel constitutes a specific offer of permanent resettlement to the respondent, the pertinent regulations and the Board's prior decisions cannot be read so restrictively that the respondent's circumstances in Israel become irrelevant.

(6) An alien will not be found to be firmly resettled elsewhere if it is shown that his physical presence in the United States is a consequence of his flight in search of refuge, and that his physical presence is reasonably proximate to the flight and not one following a flight remote in point of time or interrupted by an intervening residence in a third country reasonably constituting a termination of the original flight in search of refuge.

(7) The question of firm resettlement is not always limited solely to the inquiry of how much time has elapsed between the alien's flight and the asylum application, where other factors germane to the question of whether the alien has firmly resettled include family ties, intent, business or property connections, and other matters.

(8) A determination that the respondent was not firmly resettled in Israel does not end the Board's inquiry as to whether the respondent should be granted asylum as a matter of discretion, where the respondent did have some ties to Israel, and such ties are a factor to be evaluated in the exercise of discretion.

(ID 3119)

Del Risco, 20 I&N Dec. 109 (BIA 1989)

A conviction in the Superior Court of Arizona for facilitation of the unlawful sale of cocaine renders an alien deportable under section 241(a)(11) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(11) (Supp. IV 1986), as an alien convicted of a violation of a law relating to a controlled substance.

(ID 3120)

Ligidakis, 20 I&N Dec. 112 (BIA 1989)

Due notice to the Immigration and Naturalization Service regarding a judicial recommendation against deportation pursuant to section 241(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(b)(2) (1982), shall be regarded as having been made where the Service has actual notice prior to the recommenda- tion and does not interpose an objection based on insufficient preparation time under 8 C.F.R. § 241.1 (1984) but instead prepares and presents its representations.

(ID 3121)

Fefe,20 I&N Dec. 116 (BIA 1989)

(1) An applicant for asylum cannot meet his burden of proof unless he testifies under oath regarding his application; and, therefore, an immigration judge should not proceed to adjudicate a written application for asylum if no oral testimony has been offered in support of that application.

(2) At a minimum, the regulations require that an asylum applicant take the stand, be placed under oath, and be questioned as to whether the information in his written application is complete and correct; the examination of an applicant will ordinarily be this brief only where the parties have stipulated that the applicant's oral testimony would be consistent with his written application and that his testimony would be believably presented.

(ID 3122)

Dass, 20 I&N Dec. 120 (BIA 1989)

(1) As an asylum applicant bears the evidentiary burden of proof and persuasion, where there are significant, meaningful evidentiary gaps, the applications ordinarily will be denied for failure of proof.

(2) While we adhere to the holding in Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987), that the lack of corroboration for an asylum applicant's testimony will not necessarily be fatal to his application, this does not mean that the introduction of supporting evidence is purely an option with an asylum applicant in the ordinary case; the general rule is that such evidence should be presented if it is available.

(3) Background evidence may be needed to evaluate the credibilit y of an asylum applicant's testimony; as the basis for an asylum claim becomes less focused on specific events involving the alien personally and instead is more directed to broad allegations regarding general conditions in the alien's country of origin, corroborative background evidence to establish a plausible context for the claim may become essential, or alternatively an acceptable explanation for the absence of such evidence may become necessary.

(4) It was proper to conclude that the asylum applicant failed to establish a well-founded fear of persecution where his persecution claim was based on sweeping claims about persecution by the Government of India, as well as on the alien's testimony regarding his own circumstances, and he did not provide background evidence to corroborate the claims about the Government of India.

(ID 3123)

Rusin, 20 I&N Dec. 128 (BIA 1989)

A respondent in deportation proceedings who seeks to adjust her status to that of a lawful permanent resident is not statutorily precluded from doing so by virtue of her former membership in a Communist organization where she can establish that her association in that organization was not meaningful or that her membership was involuntary or that she otherwise comes within one of the specified exceptions set forth in section 212(a)(28)(I)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(28)(I)(i) (1982).

(ID 3124)

Uluocha, 20 I&N Dec. 133 (BIA 1989)

(1) The bond regulations (8 C.F.R. §§ 3.18(a) and 242.2(d) (1989)), which establish unique and informal proceedings, do not specifically address motions to reopen and do not expressly limit a detained alien to one application for modification of the amount or terms of a bond.

(2) Immigration judges can further consider requests to modify bonds by detained aliens without a formal motion to reopen under 8 C.F.R. § 242.22 (1989).

(3) Further requests to modify bonds should be considered on the merits and if there are no changed circumstances shown, the immigration judge can decline to change the prior bond decision. Matter of Chew, 18 I&N Dec. 262 (BIA 1982), followed.

(ID 3125)

Short, 20 I&N Dec. 136 (BIA 1989)

(1) If the underlying or substantive crime involves moral turpitude, then a conviction for aiding in the commission of the crime or for otherwise acting as an accessory before the fact is also a conviction for a crime involving moral turpitude. Matter of F-, 6 I&N Dec. 783 (BIA 1955), followed.

(2) The Board of Immigration Appeals withdraws from Matter of Baker, 15 I&N Dec. 50 (BIA 1974), to the extent that it holds that an assault with intent to commit a felony is per se a crime involving moral turpitude without regard to whether the underlying felony involves moral turpitude; there must be a finding that the felony intended as a result of the assault involves moral turpitude.

(3) For purposes of determining whether the respondent's conviction for aiding and abetting in the assault with intent to commit a felony upon the person of a minor in violation of 18 U.S.C. § 2 (1982) and 18 U.S.C. § 113(b) (Supp. IV 1986) was for a crime involving moral turpitude, the conviction record of the respondent's husband, whom she was convicted of aiding and abetting, may not be properly be admitted as evidence where the respondent's record of conviction nowhere related her crime of aiding and abetting to the specific sexual offense of which her husband was convicted, the respondent's prior conviction for engaging in deviate sexual intercourse with a 3-year-old female was overturned on appeal, and the statute under which she was subsequently convicted specifically excluded felonies under Chapter 109A of Title 18 (18 U.S.C. §§ 2241-45 (Supp. IV 1986)), which concerns sexual abuse offenses.

(ID 3126)

Villalta, 20 I&N Dec. 142 (BIA 1990)

(1) Alien who established through his direct and uncontradicted testimony that he and his immediate family members were singled out and threatened with death by a "Death Squad," and whose brother was subsequently slain in a noncombat situation, demonstrated a well-founded fear of persecution in El Salvador pursuant to section 208(a) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a) (1982).

(2) Alien's testimony that he and his immediate family members had been threatened with harm due to his activities in a student organization in El Salvador established a well-founded fear of persecution on account of political opinion.

(ID 3127)

Izatula, 20 I&N Dec. 149 (BIA 1990)

(1) The general rule that prosecution for an attempt to overthrow a lawfully constituted government does not constitute persecution is inapplicable in countries where a coup is the only means of effectuating political change. Dwomoh v. Sava, 696 F. Supp. 970 (S.D.N.Y. 1988), followed.

(2) Alien who actively assisted the mujahedin in Afghanistan, and who was sought out by the Afghan regime because of that activity, established a well-founded fear of persecution within the meaning of the Immigration and Nationality Act since there was no basis in the record to conclude that any punishment imposed on the alien would be an example of prosecution for an attempt to overthrow a lawfully constituted government.

(ID 3128)

Keyte, 20 I&N Dec. 158 (BIA 1990)

Departure from the United States by an applicant for admission in exclusion proceedings after the taking of an appeal from the immigration judge's order denying admission does not constitute withdrawal of the appeal.

(ID 3129)

Marquez, 20 I&N Dec. 160 (BIA 1990)

(1) The Board of Immigration Appeals rejects a strict statutory interpretation of section 101(b)(1)(E) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(E) (1982), thereby relying upon the legislative history of the statute which indicates that Congress did not intend to recognize ad hoc adoptions designed to circumvent the immigration laws.

(2) The Board finds the adoptive relationship is more akin to marital relationships than to steprelationships, and thus, in certain cases, the bona fides of adoptions will be determined.

(3) Visa petitions involving the specter of sham adoptions which generally arise in adoptions by a close relative where the relationship between the natural parent and the adopted child does not appear to change subsequent to the adoption will be analyzed under the standards set forth in Matter of Cuello, 20 I&N Dec. 3117 (BIA 1989).

(ID 3130)

Tawfik, 20 I&N Dec. 166 (BIA 1990)

(1) In making a determination that a beneficiary's prior marriage comes within the purview of section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (1988), as a marriage entered into for the purpose of evading the immigration laws, the district director should not give conclusive effect to determinations made in prior proceedings, but, rather, should reach an independent conclusion based on the evidence of record, although any relevant evidence may be relied upon, including evidence having its origin in prior Service proceedings involving the beneficiary or in court proceedings involving the prior marriage.

(2) A decision to revoke approval of a visa petition because the beneficiary entered into a prior marriage for the primary purpose of obtaining immigration benefits can only be sustained if there is substantial and probative evidence in the alien's file to the effect that the prior marriage was entered into for such purpose, and, where the district director concluded that there was evidence in the record from which it could "reasonably be inferred" that a marriage had been entered into for the primary purpose of obtaining immigration benefits, the substantial and probative evidence, requisite to the revocation of a subsequently approved visa petition, was not presented.

(ID 3131)

Barrett, 20 I&N Dec. 171 (BIA 1990)

The definition of "drug trafficking crime" in 18 U.S.C. § 924(c)(2) (1988) for purposes of determining a drug-related "aggravated felony" within the meaning of section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) (1988), includes state convictions for crimes analogous to offenses under the Controlled Substances Act, 21 U.S.C. § 801 et seq. (1988), the Controlled Substances Import and Export Act, 21 U.S.C. § 951 et seq. (1988), or the Maritime Drug Law Enforcement Act, 46 U.S.C. App. § 1901 et seq. (1988).

(ID 3132)

Lutheran Ministries of Florida, 20 I&N Dec. 185 (BIA 1990)

The application of a nonprofit organization seeking recognition under 8 C.F.R. § 292.2(a) (1989) should include detailed information as to how the organization will operate and by whom it will be staffed, as well as other evidence regarding the organization's qualifications such as resumes for the staff members and information as to the availability of legal resource materials, training programs in immigration law and procedure, and supervised employment for the staff.

(ID 3133)

Dobere, 20 I&N Dec. 188 (BIA 1990)

Under the Rules of Procedure for Proceedings before Immigration Judges, immigration judges have the authority to change venue in exclusion proceedings even in cases where the applicant is being held in custody. Matter of Alphonse, 18 I&N Dec. 178 (BIA 1981), superseded.

(ID 3134)

Edwards, 20 I&N Dec. 191 (BIA 1990)

(1) A clear showing of reformation is not an absolute prerequisite to a favorable exercise of discretion in every section 212(c) application involving an alien with a criminal record; therefore, section 212(c) applications involving convicted aliens must be evaluated on a case-by-case basis, with rehabilitation a factor to be considered in the exercise of discretion. Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988); and Matter of Marin, 16 I&N Dec. 581 (BIA 1978), clarified.

(2) A proper determination as to whether an alien has demonstrat ed unusual or outstanding equities in a section 212(c) application can only be made after a complete review of the favorable factors in his case, and, therefore, the use of the term "threshold test" is deemed to be inappropriate in this context, as it might be interpreted to imply that a full examination of an alien's equities can somehow be pretermitted. Matter of Buscemi, supra, clarified.

(ID 3135)

Lopez-Barrios, 20 I&N Dec. 203 (BIA 1990)

(1) The administrative closing procedure may not be used if it is opposed by either party to the proceedings.

(2) If an immigration judge is satisfied that the notice provided to a respondent who failed to appear for a scheduled hearing was sufficient, then a hearing in absentia may be held, but if the notice was not sufficient, then termination of proceedings, not administrative closing, is appropriate.

(ID 3136)

Munoz-Santos, 20 I&N Dec. 205 (BIA 1990)

(1) Where the Order to Show Cause, Notice of Hearing, and arrant for Arrest of Alien (Form I-221S) reflects that the respondent signed various portions of the form, that various rights forms and advisories had been served on the respondent, and that an officer of the Immigration and Naturalization Service signed the portion of the document certifying service, it may be assumed that the Order to Show Cause was served personally on the respondent, in compliance with 8 C.F.R. § 242.1(c) (1990).

(2) Personal service of a notice of a hearing date is not required for the immigration judge to conduct a deportation hearing in absentia where the respondent fails to appear for a scheduled hearing.

(3) Where the immigration judge concludes that notice of a hearing date has been sufficiently provided to a respondent, and the respondent without reasonable cause fails to appear, the immigration judge may conduct an in absentia deportation hearing.

(ID 3137)

Eden, 20 I&N Dec. 209 (BIA 1990)

An alien convicted of an aggravated felony is subject to detention under section 242(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(2) (1988), upon completion of the incarceration or confinement ordered by the court for such conviction.

(ID 3138)

Medrano, 20 I&N Dec. 216 (BIA 1990)

(1) The status of a lawful temporary resident alien who commits a deportable offense must be terminated pursuant to section 245A(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1255a(b)(2) (1988), as a condition precedent to the commencement of deportation proceedings.

(2) A motion to reconsider which is based on a legal argument that could have been raised earlier in the proceedings will be denied.

(ID 3139)

Sanchez, 20 I&N Dec. 223 (BIA 1990)

(1) The immigration judge erred in holding that he had jurisdiction to conduct a hearing in bond proceedings for a criminal alien who was still incarcerated in a Maryland State penal institution.

(2) The Immigration and Naturalization Service did not have actual physical custody of the criminal alien, and therefore there was no authority for the commencement of bond proceedings before an immigration judge under the regulations.

(3) The filing of a Service detainer with the Maryland penal authorities does not constitute actual physical custody.

(4) Section 242(i) of the Immigration and Nationality Act, 8 U.S.C. § 1252(i) (1988), which indicates that the Attorney General should begin any deportation proceeding as expeditiously as possible after the date of the conviction, is not a vehicle for incarcerated aliens to demand immediate deportation hearings.

(ID 3140)

Fuentes, 20 I&N Dec. 227 (BIA 1991)

(1) Issuance of an Order to Show Cause is sufficient to commence proceedings against an alien for purposes of section 204(h) of the Immigration and Nationality Act, 8 U.S.C. § 1154(h) (1988). Matter of Enriquez, 19 I&N Dec. 554 (BIA 1988), superseded.

(2) A visa petition based on a marriage which occurred after proceedings have commenced against the beneficiary may be approved if he can show by clear and convincing evidence that his marriage to the petitioner was entered into in good faith.

(ID 3141)

R-P-, 20 I&N Dec. 230 (BIA 1990)

(1) Where an immigration judge in deportation proceedings issues a decision granting an alien voluntary departure, the sole relief requested, the Board of Immigration Appeals may summarily dismiss the alien's appeal from that decision pursuant to 8 C.F.R. § 3.1(d)(1-a)(iii) (1990).

(2) The Board will not grant a further period of voluntary departure to an alien who files a frivolous appeal from a decision which does not adversely affect him.

(ID 3142)

Peugnet, 20 I&N Dec. 233 (BIA 1991)

(1) The definition of the terms "routine service" and "personal service" provided by 8 C.F.R. §103.5a(a) (1990) only applies to administrative proceedings before Immigration and Naturalization Service officers and consequently is not directly or formally applicable to defining the terms "routine" and "personal" service as used in 8 C.F.R. § 242.1(c) (1990) regarding the proper service on an alien of an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S) as a means of instituting deportation proceedings.

(2) In interpreting the terms "routine" and "personal" service as used in 8 C.F.R. § 242.1(c) (1990), the Board of Immigration Appeals will use the definition provided in 8 C.F.R. § 103.5a(a) (1990) as guidance and adopt that definition in total, given that 8 C.F.R. § 103.5a(a) (1990) previously applied in defining "routine" versus "personal" service of an Order to Show Cause and there exists no currently applicable regulation defining these terms for purposes of 8 C.F.R. §242.1(c) (1990).

(3) For purposes of defining "routine" and "personal" service within the meaning of 8 C.F.R. §242.1(c) (1990), routine service consists of mailing a copy of a document by ordinary mailaddressed to a person at his last known address, while personal service, which shall be performed by a government employee, consists of any of the following, without priority or preference: delivery of a copy personally; delivery of a copy at a person's dwelling house or usual place of abode by leaving it with some person of suitable age and discretion; delivery of a copy at the office of an attorney or other person, including a corporation, by leaving it with a person in charge; mailing a copy by certified or registered mail, return receipt requested, addressed to a person at his last known address.

(4) An alien's deportation hearing may not proceed in absentia where the Order to Show Cause is sent to the alien's address by regular mail and is not reserved by personal service as required by 8 C.F.R. § 242.1(c) (1990) after the alien fails to appear for the hearing or acknowledge that he has received the Order to Show Cause.

(ID 3143)

Guevara, 20 I&N Dec. 238 (BIA 1991)

(1) A respondent in deportation proceedings who remains silent when confronted with evidence of his alienage, the circumstances of his entry, or his deportability, may leave himself open to adverse inferences, which may properly lead in turn to a finding of deportability against him.

(2) In deportation proceedings, the respondent's silence alone, in the absence of any other evidence of record, is insufficient to constitute prima facie evidence of the respondent's alienage and is therefore also insufficient to establish the respondent's deportability by clear, unequivocal, and convincing evidence.

(3) Whether or not the Government's purported grant of immunity from prosecution is actually valid, the Immigration and Naturalization Service may not rely on the respondent's silence alone to establish a prima facie case of alienage and deportability.

(4) The immigration judge's finding that the Service had established the respondent's alienage and deportability on the basis of the respondent's silence alone was found to be erroneous, and the Board of Immigration Appeals terminated the deportation proceedings.

(5) Where the Service did not seek to modify its case against the respondent, but merely requested an additional opportunity to make a second effort at proving the same allegations and charge which had already been advanced unsuccessfully, regulations at 8 C.F.R. §§ 3.28 and 242.16(d) (1990) did not apply, and the Board dismissed the Service's motion to reconsider.

(ID 3144)

Huete, 20 I&N Dec. 250 (BIA 1991)

(1) In order to effect personal service of an Order to Show Cause and Notice of Hearing (Form I-221) sent by certified mail, return receipt requested, the receipt must be signed by the addressee or a responsible person at his or her address and returned.

(2) The respondent did not have a reasonable opportunity to be present at his deportation hearing where he was not personally served with the Order to Show Cause.

(3) The immigration judge did not err in terminating deportation proceedings based on his finding that the Order to Show Cause was not properly served where the certified mail return receipt was not signed and returned.

(ID 3145)

Tiwari, 20 I&N Dec. 254 (BIA 1991)

In denying the Immigration and Naturalization Service's motion to reconsider Matter of Tiwari, 19 I&N Dec. 875 (BIA 1989), the Board of Immigration Appeals clarified its previous decision and explained that the trier of fact is not prohibited from making inferences from evidence introduced in deportation proceedings, but that under the circumstances of this case, the inference suggested by the Service was inadequate to establish the respondent's deportability by clear, unequivocal, and convincing evidence.

(ID 3146)

Meza, 20 I&N Dec. 257 (BIA 1991)

(1) Pursuant to prior precedent decisions of the Board of Immigration Appeals, a waiver under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1988), is available in deportation proceedings only to those aliens who have been found deportable under a ground of deportability for which there is a comparable ground of excludability.

(2) Section 212(c) of the Act as amended by the Immigration Act of 1990, Pub. L. No. 101-649, § 511, 104 Stat. 4978, 5052, implies that some aliens who have been convicted of an aggravated felony are eligible for a section 212(c) waiver, although clearly no alien who has been convicted of an aggravated felony and has served a term of imprisonment of at least 5 years is eligible for a waiver under section 212(c) as amended.

(3) An alien deportable under section 241(a)(4)(B) of the Act, 8 U.S.C. § 1251(a)(4)(B) (1988), for a drug-related aggravated felony which could also form the basis for excludability under section 212(a)(23) is not precluded from establishing eligibility for a section 212(c) waiver.

(ID 3147)

Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1991)

(1) In a case referred to him for review under 8 C.F.R. § 3.1(h) (1990), the Attorney General disapproves the decision of the Board of Immigration Appeals holding that a waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1988), should be available to aliens deportable under any ground of deportation except those where there is a comparable ground of exclusion which has been specifically exempted from section 212(c).

(2) The Attorney General concludes that a lawful permanent resident of the United States, who has been found deportable under section 241(a)(2) of the Act, 8 U.S.C. § 1251(a)(2) (1988), for entry without inspection, is ineligible for a waiver under section 212(c) of the Act because there is no ground of exclusion which is comparable to the entry without inspection ground of deportation.

(ID 3148)

Roberts, 20 I&N Dec. 294 (BIA 1991)

(1) An applicant for a waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1988), who is an aggravated felon is not required to meet a heightened discretionary test beyond the requirements set forth in Matter of Marin, 16 I&N Dec. 581 (BIA 1978), Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988), and Matter of Edwards, 20 I&N Dec. 3134 (BIA 1990).

(2) A sole conviction for the felony sale of a controlled substance is sufficient to support a determination that the respondent is a drug trafficker within the meaning of section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (1988).

(3) The immigration judge, in exercising his discretion to grant section 212(c) relief, may not consider evidence on a theory of entrapment after the introduction of the respondent's conviction record because such theory directly relates to the issue of the respondent's ultimate guilt or innocence.

(ID 3149)

Scandinavian Airlines Flight #SK 911, 20 I&N Dec. 306 (BIA 1991)

(1) Any bringing to the United States of an alien who does not meet the visa requirements of the Immigration and Nationality Act when he is presented for inspection incurs fine liability under section 273 of the Act, 8 U.S.C. § 1323 (1988), even in cases where it is established that the alien had a visa in his possession when he boarded the carrier's airplane abroad for the flight to the United States.

(2) While the fact that an alien had a visa in his possession when he boarded the carrier's airplane abroad may entitle the carrier to remission (forgiveness in full) under section 273(c) of the Act, the carrier has the burden of establishing that fact, and that burden of proof has not been met in this case.

(ID 3150)

Stockwell, 20 I&N Dec. 309 (BIA 1991)

(1) An alien holding conditional permanent resident status is prohibited by section 245(d) of the Immigration and Nationality Act, 8 U.S.C. § 1255(d) (1988), from adjusting his status under section 245(a).

(2) Section 245(d) of the Act does not prohibit an alien whose conditional permanent resident status has been terminated from adjusting his status under section 245(a).

(ID 3151)

Lemhammad, 20 I&N Dec. 316 (BIA 1991)

(1) In a deportation proceeding where the alien is charged with deportability pursuant to section 241(a)(9)(B) of the Immigration and Nationality, 8 U.S.C. § 1251(a)(9)(B) (1988), as an alien whose status as a conditional permanent resident has been terminated under section 216(b) of the Act, 8 U.S.C. § 1186a(b) (1988), the burden is on the Immigration and Naturalization Service to show by a "preponderance of the evidence" that one of the conditions for termination of status described in section 216(b)(1)(A) of the Act has been met.

(2) Original jurisdiction to rule on the merits of an Applicatio n for Waiver of Requirement to File Joint Petition for Removal of Conditions (Form I-752) rests only with the appropriate regional service center director, and not the immigration judge.

(ID 3152)

U-M-, 20 I&N Dec. 327 (BIA 1991)

(1) By federal statute, aggravated felonies and, correspondingly, drug trafficking crimes, are per se particularly serious crimes.

(2) The respondent in deportation proceedings has been convicted of particularly serious crimes, i.e., convictions for the sale of marihuana and lysergic acid diethylamide (LSD) and, therefore, by operation of law, he is ineligible for asylum pursuant to 8 C.F.R. § 208.14(c)(1) (1991) and for withholding of deportation under section 243(h)(2)(B) of the Immigration and Nationality Act, 8 U.S.C.A. § 1253(h)(2)(B) (West Supp. 1991), and 8 C.F.R. § 208.16(c)(2)(ii)(1991).

(3) The asylum regulations found at 8 C.F.R. §§ 208.1-.24 (1991) are applicable to the respondent's applications for asylum and withholding of deportation received by the Office of the Immigration Judge on November 14, 1990, since these regulations apply to applications filed on or after October 1, 1990, as provided by 8 C.F.R. § 208.1(a) (1991).

(4) The statutory bar to asylum for an alien convicted of an aggravated felony, set forth in section 515(a)(1) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5053 (enacted November 29, 1990), amending section 208 of the Act, 8 U.S.C. § 1158 (1988), does not apply to the respondent's asylum application, where section 515(b)(1) of the 1990 Act, 104 Stat. at 5053, provides that this statutory bar "shall apply to applications for asylum made on or after the date of the enactment of this Act," and the respondent made his application for asylum with the immigration judge on November 14, 1990, approximately 2 weeks before the enactment date.

(5) The amendment to section 243(h)(2)(B) of the Act, providing that an alien convicted of an aggravated felony shall be considered to have committed a particularly serious crime, is effective on the date of enactment of the Immigration Act of 1990, 104 Stat. at 4978 (enacted November 29, 1990), where the 1990 Act is silent as to the effective date of the amendment, and in the absence of an express provision to the contrary, an act of Congress takes effect on its date of enactment.

(6) Where new statutory provisions affecting eligibility for relief from deportation come into effect during the pendency of a deportation hearing or an administrative appeal to this Board, and there exists no statutory directive to the contrary, the new statutory provisions shall be applied to the application for relief before us, and the application may be denied on the basis of the statutory amendment.

(ID 3153)

Hernandez-Puente, 20 I&N Dec. 335 (BIA 1991)

(1) The Board of Immigration Appeals and the immigration judges are without authority to apply the doctrine of equitable estoppel against the Immigration and Naturalization Service so as to preclude it from undertaking a lawful course of action that it is empowered to pursue by statute and regulation.

(2) The Service has no authority to grant an application for adjustment of status nunc pro tunc under section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255 (1988).

(3) As the Board has no jurisdiction, according to 8 C.F.R. § 245.2(a)(5) (1991), to review a district director's decision to deny adjustment of status, it follows that the Board also lacks jurisdiction to review or remedy a failure of the Service to act on the application.

(ID 3154)

Juarez, 20 I&N Dec. 340 (BIA 1991)

(1) The status of a lawful temporary resident alien under the special agricultural worker program who subsequently commits a deportable offense is not required to be terminated as a condition precedent to the commencement of deportation proceedings. Matter of Medrano, 20 I&N Dec. 3138 (BIA 1990, 1991), distinguished.

(2) The protection against the execution of an order of deportation afforded by section 210(d) of the Immigration and Nationality Act, 8 U.S.C. § 1160(d) (1988), does not apply to an alien who has been granted temporary resident status, who commits a deportable offense after acquiring such status, and who is subject to a final order of deportation by an immigration judge based on a determination that the alien is deportable for such offense under section 241(a) of the Act, 8 U.S.C. § 1251(a) (1988).

(ID 3155)

De La Cruz, 20 I&N Dec. 346 (BIA 1991)

(1) Section 242(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(2) (1988), as amended by section 504 of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5049, creates a rebuttable presumption against the release of any alien convicted of an aggravated felony from Immigration and Naturalization Service custody unless the alien demonstrates that he is an alien lawfully admitted for permanent residence, is not a threat to the community, and is likely to appear for any scheduled hearings.

(2) Unlawful distribution of a controlled substance involves unlawful trade or dealing, i.e., "trafficking," in a controlled substance under the definition of "aggravated felony" at section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (1988), as amended by section 501 of the Immigration Act of 1990, 104 Stat. at 5048.

(3) "Illicit trafficking" in a controlled substance within the meaning of section 101(a)(43) of the Act, as amended, includes "any drug trafficking crime" as defined in 18 U.S.C. § 924(c)(2) (1988).

(ID 3156)

Sanchez-Linn, 20 I&N Dec. 362 (BIA 1991)

(1) An applicant for registry under section 249 of the Immigration and Nationality Act, 8 U.S.C. §1259 (1988), must establish that he (a) entered the United States prior to January 1, 1972; (b) has had his residence in the United States continuously since such entry; (c) is a person of good moral character; and (d) is not ineligible to citizenship.

(2) In order for an applicant for registry to meet his burden of proving that he is at present a person of good moral character, he must show that he has been such for a reasonable period of time preceding the application.

(3) The greater the gravity of an alien's past misconduct, the longer the period of intervening good conduct must be before an applicant for registry may be able to meet his burden of establishing that he is now a person of good moral character.

(4) Applicants who have engaged in conduct within the scope of any of the provisions of section 101(f) of the Act, 8 U.S.C. § 1101(f) (1988), may be required to present compelling evidence that their character has changed.

(5) An applicant for registry can also be denied such relief in the exercise of discretion.

(ID 3157)

Patel, 20 I&N Dec. 368 (BIA 1991)

(1) Aliens seeking admission to the United States who do not appear to an immigration inspector to be clearly and beyond a doubt entitled to enter are placed in exclusion proceedings under section 235(b) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b) (1988).

(2) Aliens who have effected an entry into the United States may only be removed in deportation proceedings under section 242(b) of the Act, 8 U.S.C. § 1252(b) (1988).

(3) "Entry" is defined at section 101(a)(13) of the Act, 8 U.S.C . § 1101(a)(13) (1988), as "any coming of an alien into the United States, from a foreign port or place or from an outlying possession."

(4) The Board of Immigration Appeals has formulated a more precise definition of "entry" which requires (1) a crossing into the territorial limits of the United States, i.e., physical presence; (2)(a) inspection and admission by an immigration officer, or (b) actual and intentional evasion of inspection at the nearest inspection point; and (3) freedom from official restraint.

(5) An applicant for admission to the United States, whose passport is stamped "Admitted" by an immigration inspector but who is prevented from entering the main terminal of an airport by a customs officer who suspects the passport to be fraudulent, is properly placed in exclusion proceedings because the applicant is not "free from official restraint," as required by Matter of Pierre, 14 I&N Dec. 467 (BIA 1973). Matter of V-Q-, 9 I&N Dec. 78 (BIA 1960), clarified.

(ID 3158)

Goldeshtein, 20 I&N Dec. 382 (BIA 1991)

(1) Structuring any transaction with one or more domestic financial institutions for the purpose of evading the reporting requirements of the financial institution(s) in violation of 31 U.S.C. §5324(3) (1988) entails a deliberate deception and impairment of governmental functions; thus, it is inherently fraudulent and is a crime involving moral turpitude.

(2) A conspiracy to commit an offense involves moral turpitude when the underlying substantive offense is a crime involving moral turpitude.

(3) An application for discretionary relief, including a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (1988), may be denied in the exercise of discretion without express rulings on the question of statutory eligibility.

(ID 3159)

Balderas, 20 I&N Dec. 389 (BIA 1991)

(1) A conviction which has previously been relied upon in a charge of deportability may be alleged as one of the "two crimes involving moral turpitude" in a second proceeding, even though the first proceeding was terminated by a grant of relief under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1988), where the second crime alleged is a subsequent conviction or a conviction that was not disclosed in the prior proceeding.

(2) A grant of relief under section 212(c) of the Act is not akin to a pardon or expungement of theconviction underlying the ground of excludability or charge of deportability.

(3) The convictions alleged to be grounds for excludability or deportability do not disappear from an alien's record for immigration purposes upon a grant of relief under section 212(c) of the Act.

(ID 3160)

MA, 20 I&N Dec. 394 (BIA 1991)

(1) Because of the potential for fraud in visa petition proceedings where Chinese notarial birth certificates are issued a period of time after the subject's birth, any and all supporting evidence should accompany such certificates as evidence of the claimed relationship.

(2) Where a petitioner files a visa petition on behalf of a claimed relative whom she has previously failed to identify as such on documents that require the identification of such relatives, the visa petition will be approved only if it is supported by clear and convincing evidence of the bona fide nature of the relationship.

(ID 3161)

Cerna, 20 I&N Dec. 399 (BIA 1991)

(1) An applicant for relief under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. §1182(c) (1988), must be a lawful permanent resident of the United States and must have a lawful unrelinquished domicile of 7 consecutive years.

(2) Barring a subsequent reversal of a respondent's deportability finding by an appellate court or administratively, an alien's status as a lawful permanent alien ends upon the entry of an administratively final order of deportation.

(3) A respondent who is subject to an administratively final order of deportation cannot successfully move to reopen deportation proceedings to again apply for relief under section 212(c) of the Act as such a respondent is no longer a lawful permanent resident of this country.

(4) Authority from one circuit is not binding in another and the Board declines to follow the holding in Vargas v. INS, 938 F.2d 358 (2d Cir. 1991), outside the jurisdiction of the United States Court of Appeals for the Second Circuit.

(5) Motions to reopen and motions to reconsider are separate and distinct motions with different requirements -- a motion to reconsider requests that the original decision be reexamined in light of additional legal arguments, a change of law, or an argument or aspect of the case that was overlooked, while a motion to reopen seeks to reopen proceedings so that new evidence can be presented and a new decision entered on a different factual record, normally after a further evidentiary hearing.

(6) The Board of Immigration Appeals has not held that a respondent who has been denied relief under section 212(c) of the Act is precluded from having the original decision reconsidered.

(7) The Board is not favorably disposed to the practice of waiting until the conclusion of the administrative appeal process to file a motion that seeks to offer additional evidence regarding the matter previously in issue.

(8) The Board has not held that the existence of outstanding equities creates a right to have the consequences resulting from particularly serious criminal misconduct waived or that such equities compel a grant of discretionary relief; rather, the Board has noted just the opposite (i.e., that the nature of the adverse factor or factors may ultimately be determinative of whether relief under section 212(c) of the Act is granted).

(ID 3162)

D-L & A-M-, 20 I&N Dec. 409 (BIA 1991)

Applicants for admission to the United States, who were not traveling in transit without visa status, are not excludable under section 212(a)(19) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(19) (1988), where the applicants did not present or intend to present fraudulent visas or travel documents or documents containing willful misrepresentations to an authorized official of the United States Government at the time of their attempted entry. Matter of Shirdel, 19 I&N Dec. 33 (BIA 1984), distinguished.

(ID 3163)

K-, 20 I&N Dec. 418 (BIA 1991)

The language of section 515(a)(2) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5053 (enacted Nov. 29, 1990), amending section 243(h)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h)(2) (1988), expressly states that an alien convicted of an aggravated felony shall be considered to have committed a "particularly serious crime" for purposes of section 243(h)(2)(B), thereby obviating the need for a case-by-case determination of this question, but does not alter the conclusion in Matter of Carballe, 19 I&N Dec. 357 (BIA 1986), modified on other grounds, Matter of Gonzalez, 19 I&N Dec. 682 (BIA 1988), that under section243(h)(2)(B) all aliens convicted of "particularly serious crimes" necessarily constitute a "danger to the community." Matter of U-M-, 20 I&N Dec. 3152 (BIA 1991), aff'd, 989 F.2d 1085 (9th Cir. 1993); Matter of Gonzalez, supra; Matter of Garcia-Garrocho, 19 I&N Dec. 423 (BIA 1986), modified on other grounds, Matter of Gonzalez, supra; and Matter of Carballe, supra, clarified.

(ID 3164)

B-, 20 I&N Dec. 427 (BIA 1991)

(1) The filing with an immigration judge of an application for asylum in exclusion or deportation proceedings is not a continuation or a mere updating of an application previously filed with the Immigration and Naturalization Service but is, in effect, a new application.

(2) Although the applicant in exclusion proceedings had previously filed an asylum application with the Service in 1980 under the interim asylum regulations, the filing of the application with the immigration judge on April 22, 1991, brings it within the purview of the present asylum regulations at 8 C.F.R. § 208 (1991).

(3) The applicant in exclusion proceedings has been convicted of a particularly serious crime, i.e., aggravated battery, and, therefore, by operation of law, he is ineligible for asylum pursuant to 8 C.F.R. § 208.14(c)(1) (1991) and for withholding of exclusion and deportation under section 243(h)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h)(2)(B) (Supp. II 1990).

(ID 3165)

P-C-M-, 20 I&N Dec. 432 (BIA 1991)

(1) An immigration judge may not redetermine custody status on his own motion and shall do so only upon application from the respondent or his representative.

(2) The potential difficulties that the Immigration and Naturalization Service may face in executing a final order of deportation because of the conditions existing in the country of deportation are not a proper consideration for an immigration judge in redetermining an alien's custody status.

(ID 3166)

Bart, 20 I&N Dec. 436 (BIA 1992)

Issuance of a bad check in violation of section 16-9-20(a) of the Georgia Code is a crime involving moral turpitude because Georgia case law clearly establishes that guilty knowledge, as evidenced by an intent to defraud, is an essential element of the offense.

(ID 3167)

Balao, 20 I&N Dec. 440 (BIA 1992)

Intent to defraud is not an essential element of the crime of passing bad checks under title 18, section 4105(a)(1) of the Pennsylvania Consolidated Statutes and, therefore, a conviction under this law is not for a crime involving moral turpitude.

(ID 3168)

Silva-Rodriguez, 20 I&N Dec. 448 (BIA 1992)

An immigration judge in deportation proceedings did not act with good cause by granting a 1-year continuance so that the respondent would have more time to establish rehabilitation in furtherance of his application for a waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (Supp. II 1990). Matter of Garcia-Reyes, 19 I&N Dec. 830 (BIA 1988), followed.

(ID 3169)

Correa-Garces, 20 I&N Dec. 451 (BIA 1992)

(1) The immigration judge has no authority to extend the appeal period provided for by federal regulations at 8 C.F.R. § 242.21(a) (1991).

(2) The authority to grant a stay of deportation once an order of deportation is entered against an alien is generally vested in the district director under federal regulations at 8 C.F.R. § 243.4 (1991), and the immigration judge's authority is limited to granting a stay in connection with a motion to reopen or a motion to reconsider, or in connection with an appeal from a decision on such a motion.

(3) A conviction which forms the basis of a finding that an alien lacks good moral character under section 101(f) of the Immigration and Nationality Act, 8 U.S.C. § 1101(f) (1988), need not be the basis upon which the alien is found deportable.

(4) A conviction for making false statements on an application for a United States passport in another person's name, and for willfully, knowingly, and with intent to deceive, falsely representing a social security account number as one's own, for the purpose of fraudulently obtaining a passport in another person's name, is for a crime involving moral turpitude.

(ID 3170)

R-O-, 20 I&N Dec. 455 (BIA 1992)

(1) A guerrilla organization's attempt to coerce a person into performing military service does not, without more, constitute persecution on account of political opinion. INS v. Elias Zacarias, U.S. 502, 112 S. Ct. 812 (1992), followed.

(2) A victim of forced recruitment must show that he is being persecuted on account of his political opinion, and that his persecution is not solely the result of the guerrillas' aim in seeking to fill their ranks in order to carry out their war with the government and pursue their political goal, their political motive being irrelevant. INS v. Zacarias, supra, followed.

(3) The respondent has not established a well-founded fear of persecution by the Government of El Salvador on account of political opinion due to his involvement with the guerrillas, where the Government does have the legitimate right to investigate the respondent regarding his suspected activities on behalf of the guerrillas and to criminally prosecute and punish him under its laws for any activities found to be illegal, and there is no evidence that the respondent has received any threats from the Government on the grounds of political opinion, or otherwise. Blanco-Lopez v. INS, 858 F.2d 531 (9th Cir. 1988), distinguished.

(ID 3171)

Carbajal, 20 I&N Dec. 461 (BIA 1992)

(1) A visa petition is considered filed on the date on which the petition and the appropriate fee are submitted to the Immigration and Naturalization Service and the petition is stamped with the time and date pursuant to 8 C.F.R. §§ 103.2(a) and 204.1(a) (1991).

(2) When the Service returns a visa petition to the petitioner because at the time she filed the visa petition she was not qualified to accord preference classification to the beneficiary, the petitioner may refile the previously submitted visa petition with the Service once she becomes qualified.

(3) When a previously filed visa petition is resubmitted to the Service, stamped with the time and date, and accompanied by the appropriate fee, it is a new petition and a new filing date has been effected which, if the petition is approved, establishes the priority date for the beneficiary pursuant to 8 C.F.R. § 245.1(f)(2) (1991).

(ID 3172)

Coelho, 20 I&N Dec. 464 (BIA 1992)

(1) The Board of Immigration Appeals may deny a motion to remand or motion to reopen proceedings where a prima facie case for the relief sought has not been established or in the absence of previously unavailable, material evidence or where the ultimate relief is discretionary, if the relief would not be granted in the exercise of discretion.

(2) A party who seeks a remand or to reopen proceedings to pursue relief bears a "heavy burden" of proving that if proceedings before the immigration judge were reopened, with all the attendant delays, the new evidence would likely change the result in the case.

(ID 3173)

Arthur, 20 I&N Dec. 475 (BIA 1992), Modified, 23 I&N Dec. 253 (BIA 2002)

(1) Under the rule of Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), a motion to reopen should generally be granted in cases involving an application for adjustment of status filed simultaneously with a visa petition, notwithstanding the fact that the visa petition has not yet been adjudicated, unless the applicant for adjustment appears clearly ineligible for the preference classification claimed in the underlying petition.

(2) Subsequent to our decision in Matter of Garcia, supra, Congress amended sections 204(g) and 245(e) of the Immigration and Nationality Act, 8 U.S.C. §§ 1154(g) and 1255(e) (Supp. II 1990), to preclude an alien from adjusting his status based on a marriage that was entered into after the commencement of proceedings to determine his right to enter or remain in the United States and to bar the approval of a visa petition to accord immediate relative or preference status based upon such marriage until after the beneficiary of the petition has resided outside the United States for a 2-year period following the marriage, unless the alien establishes "by clear and convincing evidence to the satisfaction of the Attorney General that the marriage was entered into in good faith and . . . was not entered into for the purpose of procuring the alien's entry as an immigrant."

(3) The presumption established in Matter of Garcia, supra, that for purposes of reopening, the relationship claimed on an unadjudicated visa petition filed simultaneously with an application for adjustment of status is bona fide unless clear ineligibility is apparent in the record is inconsistent and incompatible with the congressionally mandated presumption that marriages entered into after the institution of proceedings are fraudulent.

(4) Given the petitioner's burden of establishing the bona fides of a marriage described in section 245(e) of the Act by clear and convincing evidence, an inquiry by an immigration judge or this Board into whether the evidence submitted in support of a visa petition based upon such marriage is sufficient to demonstrate prima facie eligibility for the preference classification sought would necessarily involve an in-depth examination into the merits of the petition, constituting a substantial and unwarranted intrusion into the district director's authority over the adjudication of visa petitions.

(5) Motions to reopen for consideration of applications for adjustment of status based upon unadjudicated visa petitions which fall within the ambit of sections 204(g) and 245(e) of the Act will not be granted. Matter of Garcia, supra, modified.

(ID 3174)

Rahman,20 I&N Dec. 480 (BIA 1992)

(1) An immigration judge's discretion to change venue in exclusion and deportation proceedings is subject to the existence of good cause for such a change, and good cause is determined by balancing the relevant factors, including administrative convenience, expeditious treatment of the case, location of witnesses, cost of transporting witnesses or evidence to a new location, and factors commonly associated with the alien's place of residence.

(2) While factors commonly associated with an applicant's place of residence are relevant to the question of proper venue, the mere fact that an applicant in exclusion proceedings allegedly resides or wishes to reside in another city, without a showing of other significant factors associated with such residence, is insufficient cause to outweigh the Immigration and Naturalization Service's opposition to a motion for change of venue, particularly where the Service has demonstrated that it would be prejudiced by such a change.

(3) The Government is not required to accommodate the applicant's choice of a distant attorney and his acquisition of an interpreter by changing venue at considerable expense, especially where there is no showing that local counsel is unavailable or that an interpreter cannot otherwise be obtained.

(4) An immigration judge's order changing the venue of the hearing does not necessarily affect the place where the alien may be detained, because an immigration judge has no authority over the place of detention.

(5) An immigration judge may grant a change of venue only upon motion by one of the parties and only after the other party has been given notice and an opportunity to respond.

(ID 3175)

Balsillie, 20 I&N Dec. 486 (BIA 1992)

(1) The Immigration and Nationality Act provides two means by which the conditional basis of a conditional permanent resident's status may be removed: the alien and the United States citizen spouse may file a Joint Petition to Remove the Conditional Basis of Alien's Permanent Resident Status (Form I-751) under section 216(c)(1) of the Act, 8 U.S.C. § 1186(c)(1)(Supp. II 1990), or the alien may file an Application for Waiver of Requirement to File Joint Petition for Removal of Conditions (Form I-752) under section 216(c)(4).

(2) Section 216(c)(4) of the Act, as amended, and the corresponding regulations at 8 C.F.R. §216.5 (1992) provide three separate waivers of the requirement to file a joint petition for removal of the conditional basis of a conditional permanent resident's status.

(ID 3176)

A-A-, 20 I&N Dec. 492 (BIA 1992)

(1) The term "aggravated felony," as defined in section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) (Supp. II 1990), encompasses all convictions described therein whether conviction occurred on, before, or after the date of enactment of the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181 (enacted Nov. 18, 1988), with the exception of the crimes that were introduced into the aggravated felony definition by the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (effective Nov. 29, 1990), which are defined as aggravated felonies only if committed on or after November 29, 1990, and unless otherwise limited in its application under a separate provision of the Immigration and Nationality Act.

(2) The statutory bar to relief found in section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (Supp. II 1990), added by the Immigration Act of 1990, and further amended by the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232, 105 Stat. 1733 (enacted Dec. 12, 1991), barring relief to an alien convicted of one or more aggravated felonies who served for such felony or felonies a term of imprisonment of at
least 5 years, applies to all aggravated felony convictions, as defined in section 101(a)(43) of the Act, regardless of when conviction occurred, with the exception of the crimes added to the aggravated felony definition by the Immigration Act of 1990, which are aggravated felonies only if committed on or after November 29, 1990.

(3) The Attorney General has determined that the effective date language of section 511(b) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5052, stating that the statutory bar of section 212(c) of the Act "shall apply to admissions occurring after the date of the enactment of [the 1990] Act," refers to applications for such relief submitted after November 29, 1990, whether at a port of entry before a district director or in subsequent proceedings before an immigration judge.

(4) Both the statutory bar of section 208(d) of the Act, 8 U.S.C. 1158(d) (Supp. II 1990), barring an alien convicted of an aggravated felony from applying for or being granted asylum, and the amendment to section 243 (h) (2) of the Act, 8 U.S.C. § 1253(h)(2) (Supp. II 1990), providing that an alien convicted of an aggravated felony shall be considered to have committed a particularly serious crime, attach to all aggravated felony convictions, whether entered before, on, or after November 29, 1990--except as that term relates to the crimes added to the aggravated felony definition by the Immigration Act of 1990, which are aggravated felonies only if committed on or after November 29, 1990--and apply to all applications for asylum and withholding of deportation made on or after November 29, 1990. Matter of U-M-, 20 I&N Dec. 3152 (BIA 1991), aff'd, 989 F.2d 1085 (9th Cir. 1993), superseded.

(ID 3177)

Adetiba, 20 I&N Dec. 506 (BIA 1992)

(1) The Board of Immigration Appeals follows its historical approach as to what constitutes a "single scheme of criminal misconduct" within the meaning of section 241(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(A)(ii) (Supp. II 1990), by interpreting the statutory language to mean that when an alien has performed an act, which, in and of itself constitutes a complete, individual, and distinct crime, he is deportable when he again commits such an act, even though one may closely follow the other, be similar in character, and even be part of an overall plan of criminal misconduct; such an approach recognizes that the statutory language was meant to distinguish cases where there are separate and distinct crimes, but they are performed in furtherance of a single criminal episode, such as where one crime constitutes a lesser offense of another or where two crimes flow from and are the natural consequence of a single act of criminal misconduct. Pacheco v. INS, 546 F.2d 448 (1st Cir. 1976), cert. denied, 430 U.S. 985 (1977), followed.

(2) Outside their respective circuits, the Board will not follow the more expansive interpretation of the statutory language in question as set forth in Gonzalez-Sandoval v. INS, 910 F.2d 614 (9th Cir. 1990); Nason v. INS, 394 F.2d 223 (2d Cir.), cert. denied, 393 U.S. 830 (1968); and Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963).

(3) The separate crimes of which the respondent was convicted, namely using credit cards in the names of different people, with intent to defraud, and from which he obtained things of value for each card during a period of time, did not arise out of a "single scheme of criminal misconduct" within the meaning of section 241(a)(2)(A)(ii) of the Act, notwithstanding that the crimes were committed pursuant to an elaborate plan and the modus operandi was the same in each instance.

(ID 3178)

Hou, 20 I&N Dec. 513 (BIA 1992)

A conviction for an attempted firearms offense will not support a charge of deportability under section 241(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(C) (Supp. II 1990).

(ID 3179)

Beltran, 20 I&N Dec. 521 (BIA 1992)

A conviction for solicitation to commit a crime relating to a controlled substance renders an alien deportable under section 241(a)(11) of the Immigration and Nationality Act, 8 U.S.C. §1251(a)(11) (1988), as an alien convicted of a violation of a law relating to a controlled substance.

(ID 3180)

C-, 20 I&N Dec. 529 (BIA 1992)

(1) The analysis presented in Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982), and followed in Beltran-Zavala v. INS, 912 F.2d 1027 (9th Cir. 1990), among other cases, for determining whether a conviction is for a "particularly serious crime" has been superseded in part by Congress through amendment of section 243(h)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h)(2) (1988), by section 515(a)(2) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5053 (effective Nov. 29, 1990).

(2) With respect to any application for withholding of deportation made on or after November 29, 1990, where the conviction in question is for an aggravated felony within the meaning of the Act, the conviction must be deemed to be for a particularly serious crime without regard to the analysis set forth in Matter of Frentescu, supra. Matter of U-M-, 20 I&N Dec. 3152 (BIA 1991), aff'd, 989 F.2d 1085 (9th Cir. 1993); Matter of Gonzalez, 19 I&N Dec. 682 (BIA 1988); Matter of Garcia-Garrocho, 19 I&N Dec. 423 (BIA 1986), modified, Matter of Gonzalez, supra; Matter of Carballe, 19 I&N Dec. 357 (BIA 1986), modified, Matter of Gonzalez, supra; and Matter of Frentescu, supra, modified, Matter of Gonzalez, supra, modified.

(ID 3181)

Davis, 20 I&N Dec. 536 (BIA 1992), Modified, Matter of Yanez, 23 I&N 390 (BIA 2002)

(1) The phrase "any illicit trafficking in any controlled substance," as used to specify a drug-related "aggravated felony" in section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) (Supp. II 1990), may be commonly defined as any unlawful trading or dealing in any controlled substance.

(2) Any felony drug-related state, federal, or qualified foreign offense descr