U.S. Department
of Justice
BIA Precedent Chart REF-END
Matter of Carrillo, 25 I&N Dec. 99 (BIA 2009)
In determining whether an alien whose status was adjusted pursuant to section 1 of the Cuban Refugee Adjustment Act of November 1, 1966, Pub. L. No. 89-732, 80 Stat. 1161, is removable as an alien who has been convicted of a crime involving moral turpitude committed within 5 years after the alien’s “date of admission,” the admission date is calculated according to the rollback provision of section 1, rather than the date adjustment of status was granted.
Matter of H-N-, 22 I&N Dec. 1039 (BIA 1999)
The Immigration Judge and the Board of Immigration Appeals have jurisdiction to adjudicate an alien’s request for a waiver of inadmissibility pursuant to section 209(c) of the Immigration and Nationality Act, 8 U.S.C. §1159(c) (1994 & Supp. II 1996), following the initial denial of such a waiver by the Immigration and Naturalization Service.
Matter of Jean, 23 I&N Dec. 323 (A.G. 2002)
(1) The 30-day period set forth in 8C.F.R. §3.38(b) (2002) for filing an appeal to the Board of Immigration Appeals is mandatory and jurisdictional, and it begins to run upon the issuance of a final disposition in the case.
(2) The Board of Immigration Appeals' authority under 8C.F.R. §3.1(c) (2002) to certify cases to itself in its discretion is limited to exceptional circumstances, and is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship.
(3) In evaluating the propriety of granting an otherwise inadmissible alien a discretionary waiver to permit adjustment of status from refugee to lawful permanent resident pursuant to section 209(c) of the Immigration and Nationality Act, 8U.S.C. §1159(c) (2000), any humanitarian, family unity preservation, or public interest considerations must be balanced against the seriousness of the criminal offense that rendered the alien inadmissible.
(4) Aliens who have committed violent or dangerous crimes will not be granted a discretionary waiver to permit adjustment of status from refugee to lawful permanent resident pursuant to section 209(c) of the Act except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship. Depending on the gravity of the alien's underlying criminal offense, such a showing of exceptional and extremely unusual hardship might still be insufficient.
(5) Aliens who have committed violent or dangerous crimes will not be granted asylum, even if they are technically eligible for such relief, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship. Depending on the gravity of the alien's underlying criminal offense, such a showing of exceptional and extremely unusual hardship might still be insufficient.
Matter of Smriko, 23 I&N Dec. 836 (BIA 2005)
(1) Removal proceedings may be commenced against an alien who was admitted to the United States as a refugee under section 207 of the Immigration and Nationality Act, 8 U.S.C. § 1157 (2000), without prior termination of the alien's refugee status.
(2) The respondent, who was admitted to the Unites States as a refugee and adjusted his status to that of a lawful permanent resident, is subject to removal on the basis of his convictions for crimes involving moral turpitude, even though his refugee status was never terminated.
Matter of D-K-, 25 I&N Dec. 761 (BIA 2012)
(1) An alien who is a refugee under section 207 of the Immigration and Nationality Act, 8 U.S.C. § 1157 (2006), and has not adjusted status to that of a lawful permanent resident may be placed in removal proceedings without a prior determination by the Department of Homeland Security that the alien is inadmissible to the United States. Matter of Garcia-Alzugaray, 19 I&N Dec. 407 (BIA 1986), distinguished.
(2) When removal proceedings are initiated against an alien who has been “admitted” to the United States as a refugee, the charges of removability must be under section 237 of the Act, 8 U.S.C. § 1227 (2006), rather than section 212 of the Act, 8 U.S.C. § 1182 (2006).
REINSTATEMENT OF REMOVAL
Matter of W-C-B-, 24 I&N Dec. 118 (BIA 2007)
(1) An Immigration Judge has no authority to reinstate a prior order of deportation or removal pursuant to section 241(a)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1231(a)(5) (2000).
(2) An alien subject to reinstatement of a prior order of deportation or removal pursuant to section 241(a)(5) of the Act has no right to a hearing before an Immigration Judge.
(3) The Immigration Judge did not err in terminating removal proceedings as improvidently begun where the respondent was subject to reinstatement of his prior order of deportation.
REMOVAL GROUNDS
Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008)
(1) For purposes of the ground of removal set forth at section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2000), the term “crime of child abuse” means any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a person under 18 years old or that impairs such a person’s physical or mental well-being, including sexual abuse or exploitation.
(2)Whether an alien is removable on the basis of a conviction for a “crime of child abuse” is determined by the elements of the alien’s offense, as reflected in the statutory definition of the crime or admissible portions of the conviction record.
Matter of Soram, 25 I&N Dec. 378 (BIA 2010)
The crime of unreasonably placing a child in a situation that poses a threat of injury to the child’s life or health in violation of section 18-6-401(1)(a) of the Colorado Revised Statutes is categorically a crime of child abuse under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006), even though no proof of actual harm or injury to the child is required. Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008), clarified.
Matter of Mendoza-Osorio, 26 I&N Dec. 703 (BIA 2016)
The offense of endangering the welfare of a child in violation of section 260.10(1) of the New York Penal Law, which requires knowingly acting in a manner likely to be injurious to the physical, mental, or moral welfare of a child, is categorically a “crime of child abuse, child neglect, or child abandonment” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012).
Matter of Velasquez, 25 I&N Dec. 278 (BIA 2010)
The misdemeanor offense of assault and battery against a family or household member in violation of section 18.2-57.2(A) of the Virginia Code Annotated is not categorically a crime of violence under 18 U.S.C. § 16(a) (2006) and therefore not categorically a crime of domestic violence within the meaning of section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006).
Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016)
(1) In analyzing whether a conviction is for a crime of domestic violence under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012), the circumstance-specific approach is properly applied to determine the domestic nature of the offense.
(2) Where the respondent’s original sentence for his Georgia conviction was ambiguous as to whether he was sentenced to probation or a probated term of imprisonment, a clarification order issued by the sentencing judge to correct an obvious discrepancy in her original order will be given effect in determining whether the respondent was sentenced to a term of imprisonment of at least 1 year.
Matter of Tavarez-Peralta, 26 I&N Dec. 171 (BIA 2013)
(1) An alien convicted of violating 18 U.S.C. § 32(a)(5) (2006), who interfered with a police helicopter pilot by shining a laser light into the pilot’s eyes while he operated the helicopter, is removable under section 237(a)(4)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(4)(A)(ii) (2006), as an alien who has engaged in criminal activity that endangers public safety.
(2) A violation of 18 U.S.C. § 32(a)(5) is not a crime of violence under 18 U.S.C. § 16 (2006).
Matter of D-R-, 25 I&N Dec. 445 (BIA 2011)
(1) The respondent’s deliberate omission from his refugee application that he was a special police officer during the Bosnian War, during which time he served in an entity that was part of the Armed Forces of the Republic of Srpska, could have affected or influenced the Government’s decision whether to grant him refugee status and was therefore a willful misrepresentation of a material fact.
(2) The respondent is removable under section 237(a)(4)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(4)(D) (2006), where the totality of the record supported the conclusion that he assisted in the extrajudicial killing of 200 Bosnian Muslims that his unit was involved in capturing, including evidence of his command responsibility, his presence, his platoon’s active participation, and the finding that he must have been aware that many other Bosnian Muslims who were similarly situatedhad been executed nearby several days earlier.
(3) An Immigration Judge may make reasonable inferences from direct and circumstantial evidence in the record as a whole and is not required to accept a respondent’s accountwhere other plausible views of the evidence are supported by the record.
(4) An expert witness is broadly defined as one who is qualified as an expert by knowledge, skill, experience, training, or education and who has specialized knowledge that willassist the Immigration Judge to understand the evidence or to determine a fact in issue.
Matter of Fitzpatrick, 26 I&N Dec. 559 (BIA 2015)
An alien who has voted in an election involving candidates for Federal office in violation of 18 U.S.C. § 611(a) (2012) is removable under section 237(a)(6)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(6)(A) (2012), regardless of whether the alien knew that he or she was committing an unlawful act by voting.
Matter of Casillas, 25 I&N Dec. 317 (BIA 2010)
An alien is removable under section 237(a)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(A) (2006), as one who was inadmissible at the time of entry or adjustment of status pursuant to section 212(a)(2)(C) of the Act, 8 U.S.C. § 1182(a)(2)(C) (2006), where an appropriate immigration official knows or has reason to believe that the alien is a trafficker in controlled substances at the time of admission to the United States.Matter of Rocha, 20 I&N Dec. 944 (BIA 1995), modified.
Matter of D-R-, 25 I&N Dec. 445 (BIA 2011)
(1) The respondent’s deliberate omission from his refugee application that he was a special police officer during the Bosnian War, during which time he served in an entity that was part of the Armed Forces of the Republic of Srpska, could have affected or influenced the Government’s decision whether to grant him refugee status and was therefore a willful misrepresentation of a material fact.
(2) The respondent is removable under section 237(a)(4)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(4)(D) (2006), where the totality of the record supported the conclusion that he assisted in the extrajudicial killing of 200 Bosnian Muslims that his unit was involved in capturing, including evidence of his command responsibility, his presence, his platoon’s active participation, and the finding that he must have been aware that many other Bosnian Muslims who were similarly situated had been executed nearby several days earlier.
(3) An Immigration Judge may make reasonable inferences from direct and circumstantial evidence in the record as a whole and is not required to accept a respondent’s account where other plausible views of the evidence are supported by the record.
(4) An expert witness is broadly defined as one who is qualified as an expert by knowledge, skill, experience, training, or education and who has specialized knowledge that will assist the Immigration Judge to understand the evidence or to determine a fact in issue.
Matter of Martinez-Serrano, 25 I&N Dec. 151 (BIA 2009)
(1) An alien’s conviction for aiding and abetting other aliens to evade and elude examination and inspection by immigration officers in violation of 18 U.S.C. § 2(a) (2006) and 8 U.S.C. § 1325(a)(2) (2006) establishes that the convicted alien is removable under section 237(a)(1)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(E)(i) (2006).
(2) Where the facts underlying the respondent’s conviction demonstrated that she knowingly assisted other aliens to enter the United States in violation of law, clear and convincing evidence established that she is removable under section 237(a)(1)(E)(i) of the Act.
Torture/Extrajudicial Killings
Matter of Vides Casanova, 26 I&N Dec. 494 (BIA 2015)
The respondent is removable under section 237(a)(4)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(4)(D) (2012), where the totality of the record supported the conclusion that, through his “command responsibility” in his role as Director of the Salvadoran National Guard and as Minister of Defense of El Salvador, he participated in the commission of particular acts of torture and extrajudicial killing of civilians in El Salvador, in that they took place while he was in command, he was aware of these abuses during or after the fact, and through both his personal interference with investigations and his inaction, he did not hold the perpetrators accountable.
Matter of Strydom, 25 I&N Dec. 507 (BIA 2011)
A conviction under section 21-3843(a)(1) of the Kansas Statutes Annotated for violation of the no-contact provision of a protection order issued pursuant to section 60-3106 of the Kansas Protection from Abuse Act constitutes a deportable offense under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(ii) (2006).
REMOVAL PROCEEDINGS
Matter of Ponce-Hernandez, 22 I&N Dec. 784 (BIA 1999)
The Immigration and Naturalization Service met its burden of establishing a minor respondent’s deportability for entry without inspection by clear, unequivocal, and convincing evidence, where (1)a Record of Deportable Alien (Form I-213) was submitted, documenting the respondent’s identity and alienage; (2) the respondent, who failed without good cause to appear at his deportation hearing, made no challenge to the admissibility of the Form I-213; and (3) there were no grounds for a finding that the admission of the Form I-213 would be fundamentally unfair.
Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014)
In the ordinary course of removal proceedings, an applicant for asylum or for withholding or deferral of removal is entitled to a hearing on the merits of those applications, including an opportunity to provide oral testimony and other evidence, without first having to establish prima facie eligibility for the requested relief. Matter of Fefe, 20 I&N Dec. 116 (BIA 1989), followed.
Matter of Z-Z-O-, 26 I&N Dec. 586 (BIA 2015)
(1) An Immigration Judge’s predictive findings of what may or may not occur in the future are findings of fact, which are subject to a clearly erroneous standard of review. Matter of V-K-, 24 I&N Dec. 500 (BIA 2008), and Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008), overruled.
(2) Whether an asylum applicant has an objectively reasonable fear of persecution based on the events that the Immigration Judge found may occur upon the applicant’s return to the country of removal is a legal determination that is subject to de novo review.
Matter of Almanza-Arenas, 24 I&N Dec. 771 (BIA 2009)
(1) An alien whose application for relief from removal was filed after the May 11, 2005, effective date of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 231 (“REAL ID Act”), has the burden to prove that he satisfies the applicable eligibility requirements and merits a favorable exercise of discretion under section 240(c)(4)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(4)(A) (2006), and must provide corroborating evidence requested by the Immigration Judge pursuant to section 240(c)(4)(B), unless it cannot be reasonably obtained.
(2) An alien whose application for cancellation of removal under section 240A(b)(1) of the Act, 8 U.S.C. § 1229b(b)(1) (2006), is governed by the provisions of the REAL ID Act, and who has been convicted of an offense under a divisible criminal statute, has the burden to establish that the conviction was not pursuant to any part of the statute that reaches conduct involving moral turpitude, including the burden to produce corroborating conviction documents, such as a transcript of the criminal proceedings, as reasonably requested by the Immigration Judge. Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir. 2007), distinguished.
(3) An alien who has been convicted of a crime involving moral turpitude has been “convicted of an offense under” section 237(a)(2) of the Act, 8 U.S.C. § 1227(a)(2) (2006), and is therefore ineligible for cancellation of removal under section 240A(b)(1)(C), regardless of his status as an arriving alien or his eligibility for a petty offense exception under section 212(a)(2)(A)(ii)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (2006).
Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011)
(1) Aliens in immigration proceedings are presumed to be competent and, if there are no indicia of incompetency in a case, no further inquiry regarding competency is required.
(2) The test for determining whether an alien is competent to participate in immigration proceedings is whether he or she has a rational and factual understanding of the nature and object of the proceedings, can consult with the attorney or representative if there is one, and has a reasonable opportunity to examine and present evidence and cross-examine witnesses.
(3) If there are indicia of incompetency, the Immigration Judge must make further inquiry to determine whether the alien is competent for purposes of immigration proceedings.
(4) If the alien lacks sufficient competency to proceed, the Immigration Judge will evaluate appropriate safeguards.
(5) Immigration Judges must articulate the rationale for their decisions regarding competency issues.
Matter of E-S-I-, 26 I&N Dec. 136 (BIA 2013)
(1) Where the indicia of a respondent’s incompetency are manifest, the Department of Homeland Security (“DHS”) should serve the notice to appear on three individuals: (1) a person with whom the respondent resides, who, when the respondent is detained in a penal or mental institution, will be someone in a position of demonstrated authority in the institution or his or her delegate and, when the respondent is not detained, will be a responsible party in the household, if available; (2) whenever applicable or possible, a relative, guardian, or person similarly close to the respondent; and (3) in most cases, the respondent.
(2) If the DHS did not properly serve the respondent where indicia of incompetency were either manifest or arose at a master calendar hearing that was held shortly after service of the notice to appear, the Immigration Judge should grant a continuance to give the DHS time to effect proper service.
(3) If indicia of incompetency become manifest at a later point in the proceedings and the Immigration Judge determines that safeguards are needed, he or she should evaluate the benefit of re-serving the notice to appear in accordance with 8 C.F.R. §§ 103.8(c)(2)(i) and (ii) (2013) as a safeguard.
Matter of J-R-R-A-, 26 I&N Dec. 609 (BIA 2015)
If an applicant for asylum has competency issues that affect the reliability of his testimony, the Immigration Judge should, as a safeguard, generally accept his fear of harm as subjectively genuine based on the applicant’s perception of events.
Matter of J-S-S-, 26 I&N Dec. 679 (BIA 2015)
(1) Neither party bears a formal burden of proof in immigration proceedings to establish whether or not the respondent is mentally competent, but where indicia of incompetency are identified, the Immigration Judge should determine if a preponderance of the evidence establishes that the respondent is competent.
(2) An Immigration Judge’s finding of competency is a finding of fact that the Board of Immigration Appeals reviews to determine if it is clearly erroneous.
Matter of M-J-K-, 26 I&N Dec. 773 (BIA 2016)
In cases involving issues of mental competency, an Immigration Judge has the discretion to select and implement appropriate safeguards, which the Board of Immigration Appeals reviews de novo.
Matter of D-R-, 25 I&N Dec. 445 (BIA 2011)
(1) The respondent’s deliberate omission from his refugee application that he was a special police officer during the Bosnian War, during which time he served in an entity that was part of the Armed Forces of the Republic of Srpska, could have affected or influenced the Government’s decision whether to grant him refugee status and was therefore a willful misrepresentation of a material fact.
(2) The respondent is removable under section 237(a)(4)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(4)(D) (2006), where the totality of the record supported the conclusion that he assisted in the extrajudicial killing of 200 Bosnian Muslims that his unit was involved in capturing, including evidence of his command responsibility, his presence, his platoon’s active participation, and the finding that he must have been aware that many other Bosnian Muslims who were similarly situatedhad been executed nearby several days earlier.
(3) An Immigration Judge may make reasonable inferences from direct and circumstantial evidence in the record as a whole and is not required to accept a respondent’s accountwhere other plausible views of the evidence are supported by the record.
(4) An expert witness is broadly defined as one who is qualified as an expert by knowledge, skill, experience, training, or education and who has specialized knowledge that willassist the Immigration Judge to understand the evidence or to determine a fact in issue.
Matter of Bett, 26 I&N Dec. 437 (BIA 2014)
A Form I-9 (Employment Eligibility Verification) is admissible in immigration proceedings to support charges of removability against an alien and to determine his or her eligibility for relief from removal.
Matter of Interiano-Rosa, 25 I7N Dec. 264 (BIA 2010)
When an application for relief is timely filed but supporting documents are not submitted within the time established, the Immigration Judge may deem the opportunity to file the documents to be waived but may not deem the application itself abandoned.
Matter of A-P-, 22 I&N Dec. 468 (BIA 1999)
(1) A summary decision pursuant to 8 C.F.R. § 240.12(b) (1998) may properly be issued by an Immigration Judge in removal proceedings in lieu of an oral or written decision only when the respondent has expressly admitted to both the factual allegations and the charges of removability; and, either the respondent’s ineligibility for any form of relief is clearly established on the pleadings; or, after appropriate advisement of and opportunity to apply for any form of relief for which it appears from the pleadings that he or she may be eligible, the respondent chooses not to apply for relief or applies only for, and is granted, the relief of voluntary departure.
(2) A summary decision should adequately link the respondent’s admissions to the factual allegations and the charges of removability to the applicable law.
(3) When an Immigration Judge issues an oral decision, the transcribed oral decision shall be included in the record in a manner that clearly separates it from the remainder of the transcript.
Matter of Rodriguez-Carrillo, 22 I&N Dec. 1031 (BIA 1999)
A remand of the record for issuance of a full and separate decision apprising the parties of the legal basis of the Immigration Judge’s decision is not required under Matter of A-P-, 22 I&N Dec. 468 (BIA 1999), where the respondent had notice of the factual and legal basis of the decision and had an adequate opportunity to contest them on appeal, the uncontested facts established at the hearing are dispositive of the issues raised on appeal, and the hearing was fundamentally fair.
Matter of Kelly, 24 I&N Dec. 446 (BIA 2008)
(1) If an Immigration Judge includes an attachment to a decision, particular care must betaken to insure that a complete record is preserved.
(2) An attachment to an Immigration Judge’s oral decision should be individualized with the respondent’s name, the alien registration number, and the date of the decision, and it should be appended to the written memorandum summarizing the oral decision, which should reflect that there is an attachment.
Matter of Silitonga, 25 I&N Dec. 89 (BIA 2009)
Under 8 C.F.R. §§ 245.2(a)(1) and 1245.2(a)(1)(ii) (2009), Immigration Judges have no jurisdiction to adjudicate an application filed by an arriving alien seeking adjustment of status, with the limited exception of an alien who has been placed in removal proceedings after returning to the United States pursuant to a grant of advance parole to pursue a previously filed application.
Matter of Gamero, 25 I&N Dec. 164
(1) Pursuant to 8 C.F.R. § 1240.26(c)(3) (2010), an Immigration Judge who grants an alien voluntary departure must advise the alien that proof of posting of a bond with the Department of Homeland Security must be submitted to the Board of Immigration Appeals within 30 days of filing an appeal and that the Board will not reinstate a period of voluntary departure in its final order unless the alien has timely submitted sufficient proof that the required bond has been posted.
(2) Where the Immigration Judge did not provide all the advisals that are required upon granting voluntary departure and the respondent failed to submit timely proof to the Board that a voluntary departure bond had been posted, the record was remanded for the Immigration Judge to grant a new period of voluntary departure and to provide the required advisals.
Matter of Marcal Neto, et al., 25 I&N Dec. 169 (BIA 2010)
Immigration Judges have authority to determine whether the validity of an alien’s approved employment-based visa petition is preserved under section 204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j) (2006), after the alien’s change in jobs or employers. Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005), overruled.
Matter of Interiano-Rosa, 25 I7N Dec. 264 (BIA 2010)
When an application for relief is timely filed but supporting documents are not submitted within the time established, the Immigration Judge may deem the opportunity to file the documents to be waived but may not deem the application itself abandoned.
Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011)
(1) Aliens in immigration proceedings are presumed to be competent and, if there are no indicia of incompetency in a case, no further inquiry regarding competency is required.
(2) The test for determining whether an alien is competent to participate in immigration proceedings is whether he or she has a rational and factual understanding of the nature and object of the proceedings, can consult with the attorney or representative if there is one, and has a reasonable opportunity to examine and present evidence and cross-examine witnesses.
(3) If there are indicia of incompetency, the Immigration Judge must make further inquiry to determine whether the alien is competent for purposes of immigration proceedings.
(4) If the alien lacks sufficient competency to proceed, the Immigration Judge will evaluate appropriate safeguards.
(5) Immigration Judges must articulate the rationale for their decisions regarding competency issues.
Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520 (BIA 2011)
(1) Section 235(b)(1)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b)(1)(A)(i) (2006), does not limit the prosecutorial discretion of the Department of Homeland Security to place arriving aliens in removal proceedings under section 240 of the Act, 8 U.S.C. § 1229a (2006).
(2) The fact that an Immigration Judge has no jurisdiction over applications for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended, does not negate his or her jurisdiction over the removal proceedings of arriving Cuban aliens under section 240 of the Act.
Matter of Herrera Del Orden, 25 I&N Dec. 589 (BIA 2011)
(1) When an alien in removal proceedings seeks “review” of the Department of Homeland Security’s (“DHS”) denial of a waiver under section 216(c)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1186a(c)(4) (2006), of the requirement to file a joint petition to remove the conditional basis of lawful permanent resident status, he or she may introduce, and the Immigration Judge should consider, any relevant evidence without regard to whether it was previously submitted or considered in proceedings before the DHS.
(2) The scope of the review authority provided in 8 C.F.R. § 1216.5(f) (2011) is coterminous with the Immigration Judge’s ordinary powers and duties in removal proceedings.
Matter of C-B-, 25 I&N Dec. 888 (BIA 2012)
(1) In order to meaningfully effectuate the statutory and regulatory privilege of legal representation where it has not been expressly waived by a respondent, an Immigration Judge must grant a reasonable and realistic period of time to provide a fair opportunity for the respondent to seek, speak with, and retain counsel.
(2) If a respondent expresses a fear of persecution or harm in a country to which he or she might be removed, the regulations require the Immigration Judge to advise the respondent of the right to apply for asylum or withholding of removal (including protection under the Convention Against Torture) and make the appropriate application forms available.
(3) If a respondent indicates that he or she will not waive appeal and is therefore ineligible or a grant of voluntary departure prior to the completion of removal proceedings under section 240B(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(a)(1) (2006), the Immigration Judge should consider the respondent’s eligibility for voluntary departure at the
Matter of C-C-I-, 26 I&N Dec. 375 (BIA 2014)
(1) Reopening of removal proceedings for a de novo hearing to consider termination of an alien's deferral of removal pursuant to 8 C.F.R. § 1208.17(d)(1) (2014), is warranted where the Government presents evidence that was not considered at the previous hearing if it is relevant to the possibility that the alien will be tortured in the country to which removal has been deferred.
(2) The doctrine of collateral estoppel does not prevent an Immigration Judge from reevaluating an alien's credibility in light of additional evidence presented at a hearing under 8 C.F.R. § 1208.17(d)(3).
Matter of R-K-K-, 26 I&N Dec. 658 (BIA 2015)
(1) Significant similarities between statements submitted by applicants in different proceedings can be considered by an Immigration Judge in making an adverse credibility determination if certain procedural steps are undertaken to preserve the fairness of the proceedings.
(2) When relying on inter-proceeding similarities, the Immigration Judge should give the applicant meaningful notice of the similarities and a reasonable opportunity to explain them prior to making a credibility determination that is based on the totality of the circumstances.
Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015)
(1) The requirements of the Federal Rules of Evidence with respect to the admission of expert testimony are inapposite to a respondent’s testimony regarding events of which he or she has personal knowledge.
(2) Conduct by an Immigration Judge that can be perceived as bullying or hostile is never appropriate, particularly in cases involving minor respondents, and may result in remand to a different Immigration Judge.
Matter of Villalobos, 26 I&N Dec. 719 (BIA 2016)
(1) Although the Department of Homeland Security has exclusive jurisdiction over applications for adjustment of status under the legalization provisions of section 245A of the Immigration and Nationality Act, 8 U.S.C. § 1255a (2012), the Immigration Judges and the Board of Immigration Appeals have jurisdiction to determine whether an alien was eligible for a previous adjustment under section 245A(b)(1) for purposes of assessing the alien’s removability and current eligibility for relief from removal.
(2) An alien seeking to acquire lawful permanent resident status through the legalization provisions of section 245A of the Act must establish admissibility, both at the time of the initial application for temporary resident status and again when applying for adjustment to permanent resident status under section 245A(b)(1).
(3) An alien who was inadmissible at the time of adjustment of status from temporary resident to permanent resident under section 245A(b)(1) of the Act was not lawfully admitted for permanent residence and is therefore ineligible for a waiver of inadmissibility under former section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994).
Matter of Khan, 26 I&N Dec. 797 (BIA 2016)
Immigration Judges do not have authority to adjudicate a request for a waiver of inadmissibility under section 212(d)(3)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1182(d)(3)(A)(ii) (2012), by a petitioner for U nonimmigrant status.
Matter of Ponce-Hernandez, 22 I&N Dec. 784 (BIA 1999)
The Immigration and Naturalization Service met its burden of establishing a minor respondent’s deportability for entry without inspection by clear, unequivocal, and convincing evidence, where (1)a Record of Deportable Alien (Form I-213) was submitted, documenting the respondent’s identity and alienage; (2) the respondent, who failed without good cause to appear at his deportation hearing, made no challenge to the admissibility of the Form I-213; and (3) there were no grounds for a finding that the admission of the Form I-213 would be fundamentally unfair.
Matter of Gomez-Gomez, 23 I&N Dec. 522 (BIA 2002)
(1) The Immigration and Naturalization Service met its burden, in an in absentia removal proceeding, of establishing a minor respondent’s removability by clear, unequivocal, and convincing evidence, where (1) a Record of Deportable/Inadmissible Alien (Form I-213) was submitted, documenting the respondent’s identity and alienage; (2) the respondent, who failed without good cause to appear at her removal hearing, made no challenge to the admissibility of the Form I-213; (3) there were no grounds for a finding that the admission of the Form I-213 would be fundamentally unfair; and (4) no independent evidence in the record supported the Immigration Judge’s conclusion that the respondent may not have been the child of the adult who claimed to be the respondent’s parent and who furnished the information regarding her foreign citizenship. Matter of Ponce-Hernandez, 22 I&N Dec. 784 (BIA 1999), followed.
(2) The respondent, a minor who could not be expected to attend immigration proceedings on her own, was properly notified of her hearing, through proper mailing of a Notice to Appear (Form I-862) to the last address provided by her parent, with whom she was residing.
Matter of Mejia-Andino, 23 I&N Dec. 533 (BIA 2002)
Removal proceedings against a minor under 14 years of age were properly terminated because service of the notice to appear failed to meet the requirements of 8 C.F.R. § 103.5a(c)(2)(ii) (2002), as it was served only on a person identified as the respondent’s uncle, and no effort was made to serve the notice on the respondent’s parents, who apparently live in the United States.
Matter of Cubor-Cruz, 25 I&N Dec. 470 (BIA 2011)
Personal service of a Notice to Appear (Form I-862) on a minor who is 14 years of age or older at the time of service is effective, and the regulations do not require that notice also be served on an adult with responsibility for the minor.
Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015)
(1) The requirements of the Federal Rules of Evidence with respect to the admission of expert testimony are inapposite to a respondent’s testimony regarding events of which he or she has personal knowledge.
(2) Conduct by an Immigration Judge that can be perceived as bullying or hostile is never appropriate, particularly in cases involving minor respondents, and may result in remand to a different Immigration Judge.
Matter of Acosta-Hidalgo, 24 I&N Dec. 103 (BIA 2007)
(1) Because the Board of Immigration Appeals and the Immigration Judges lack jurisdiction to adjudicate applications for naturalization, removal proceedings may only be terminated pursuant to 8 C.F.R. § 1239.2(f) (2006) where the Department of Homeland Security has presented an affirmative communication attesting to an alien’s prima facie eligibility for naturalization. Matter of Cruz, 15 I&N Dec. 236 (BIA 1975), reaffirmed.
(2) An adjudication by the Department of Homeland Security on the merits of an alien’s naturalization application while removal proceedings are pending is not an affirmative communication of the alien’s prima facie eligibility for naturalization that would permit termination of proceedings under 8 C.F.R. § 1239.2(f).
Matter of Cubor-Cruz, 25 I&N Dec. 470 (BIA 2011)
Personal service of a Notice to Appear (Form I-862) on a minor who is 14 years of age or older at the time of service is effective, and the regulations do not require that notice also be served on an adult with responsibility for the minor.
Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998)
(1) A decision by the Immigration and Naturalization Service to institute removal or other proceedings, or to cancel a Notice to Appear or other charging document before jurisdiction vests with the Immigration Judge, involves the exercise of prosecutorial discretion and is not a decision that the Immigration Judge or this Board may review.
(2) Once the charging document is filed with the Immigration Court and jurisdiction is vested in the Immigration Judge, the Service may move to terminate the proceedings, but it may not simply cancel the charging document. The Immigration Judge is not required to terminate proceedings upon the Service’s invocation of prosecutorial discretion but rather must adjudicate the motion on the merits according to the regulations at 8 C.F.R. § 239.2 (1998).
(3) The Immigration Judge and the Board of Immigration Appeals lack jurisdiction to review a decision of the Immigration and Naturalization Service to reinstate a prior order of removal pursuant to section 241(a)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(5) (Supp. II 1996).
Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520 (BIA 2011)
(1) Section 235(b)(1)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b)(1)(A)(i) (2006), does not limit the prosecutorial discretion of the Department of Homeland Security to place arriving aliens in removal proceedings under section 240 of the Act, 8 U.S.C. § 1229a (2006).
(2) The fact that an Immigration Judge has no jurisdiction over applications for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended, does not negate his or her jurisdiction over the removal proceedings of arriving Cuban aliens under section 240 of the Act.
Matter of Smriko, 23 I&N Dec. 836 (BIA 2005)
(1) Removal proceedings may be commenced against an alien who was admitted to the United States as a refugee under section 207 of the Immigration and Nationality Act, 8 U.S.C. § 1157 (2000), without prior termination of the alien’s refugee status.
(2) The respondent, who was admitted to the Unites States as a refugee and adjusted his status to that of a lawful permanent resident, is subject to removal on the basis of his convictions for crimes involving moral turpitude, even though his refugee status was never terminated.
Matter of Espinosa Guillot, 25 I&N Dec. 653 (BIA 2011)
An alien who has adjusted status to that of a lawful permanent resident pursuant to the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended, has been admitted to the United States and is subject to charges of removability under section 237(a) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a) (2006).
Matter of D-K-, 25 I&N Dec. 761 (BIA 2012)
(1) An alien who is a refugee under section 207 of the Immigration and Nationality Act, 8 U.S.C. § 1157 (2006), and has not adjusted status to that of a lawful permanent resident may be placed in removal proceedings without a prior determination by the Department of Homeland Security that the alien is inadmissible to the United States. Matter of Garcia-Alzugaray, 19 I&N Dec. 407 (BIA 1986), distinguished.
(2) When removal proceedings are initiated against an alien who has been “admitted” to the United States as a refugee, the charges of removability must be under section 237 of the Act, 8 U.S.C. § 1227 (2006), rather than section 212 of the Act, 8 U.S.C. § 1182 (2006).
Matter of Sanchez-Herbert, 26 I&N Dec. 43 (BIA 2012)
Where an alien fails to appear for a hearing because he has departed the United States, termination of the pending proceedings is not appropriate if the alien received proper notice of the hearing and is removable as charged.
Matter of D-R-, 25 I&N Dec. 445 (BIA 2011)
(1) The respondent’s deliberate omission from his refugee application that he was a special police officer during the Bosnian War, during which time he served in an entity that was part of the Armed Forces of the Republic of Srpska, could have affected or influenced the Government’s decision whether to grant him refugee status and was therefore a willful misrepresentation of a material fact.
(2) The respondent is removable under section 237(a)(4)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(4)(D) (2006), where the totality of the record supported the conclusion that he assisted in the extrajudicial killing of 200 Bosnian Muslims that his unit was involved in capturing, including evidence of his command responsibility, his presence, his platoon’s active participation, and the finding that he must have been aware that many other Bosnian Muslims who were similarly situated had been executed nearby several days earlier.
(3) An Immigration Judge may make reasonable inferences from direct and circumstantial evidence in the record as a whole and is not required to accept a respondent’s account where other plausible views of the evidence are supported by the record.
(4) An expert witness is broadly defined as one who is qualified as an expert by knowledge, skill, experience, training, or education and who has specialized knowledge that will assist the Immigration Judge to understand the evidence or to determine a fact in issue.
Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015)
(1) The requirements of the Federal Rules of Evidence with respect to the admission of expert testimony are inapposite to a respondent’s testimony regarding events of which he or she has personal knowledge.
(2) Conduct by an Immigration Judge that can be perceived as bullying or hostile is never appropriate, particularly in cases involving minor respondents, and may result in remand to a different Immigration Judge.
SECTION 209(C) WAIVERS
Matter of H-N-, 22 I&N Dec. 1039 (BIA 1999)
The Immigration Judge and the Board of Immigration Appeals have jurisdiction to adjudicate an alien’s request for a waiver of inadmissibility pursuant to section 209(c) of the Immigration and Nationality Act, 8 U.S.C. §1159(c) (1994 & Supp. II 1996), following the initial denial of such a waiver by the Immigration and Naturalization Service.
Matter of Jean, 23 I&N Dec. 323 (A.G. 2002)
(1) The 30-day period set forth in 8C.F.R. §3.38(b) (2002) for filing an appeal to the Board of Immigration Appeals is mandatory and jurisdictional, and it begins to run upon the issuance of a final disposition in the case.
(2) The Board of Immigration Appeals' authority under 8C.F.R. §3.1(c) (2002) to certify cases to itself in its discretion is limited to exceptional circumstances, and is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship.
(3) In evaluating the propriety of granting an otherwise inadmissible alien a discretionary waiver to permit adjustment of status from refugee to lawful permanent resident pursuant to section 209(c) of the Immigration and Nationality Act, 8U.S.C. §1159(c) (2000), any humanitarian, family unity preservation, or public interest considerations must be balanced against the seriousness of the criminal offense that rendered the alien inadmissible.
(4) Aliens who have committed violent or dangerous crimes will not be granted a discretionary waiver to permit adjustment of status from refugee to lawful permanent resident pursuant to section 209(c) of the Act except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship. Depending on the gravity of the alien's underlying criminal offense, such a showing of exceptional and extremely unusual hardship might still be insufficient.
(5) Aliens who have committed violent or dangerous crimes will not be granted asylum, even if they are technically eligible for such relief, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship. Depending on the gravity of the alien's underlying criminal offense, such a showing of exceptional and extremely unusual hardship might still be insufficient.
Matter of K-A-, 23 I&N Dec. 661 (BIA 2004)
(1) Pursuant to 8 C.F.R. § 1209.2(c) (2004), once an asylee has been placed in removal proceedings, the Immigration Judge and the Board of Immigration Appeals have exclusive jurisdiction to adjudicate the asylee’s applications for adjustment of status and a waiver of inadmissibility under sections 209(b) and (c) of the Immigration and Nationality Act, 8 U.S.C. §§ 1159(b) and (c) (2000). Matter of H-N-, 22 I&N Dec. 1039 (BIA 1999), distinguished.
(2) Termination of a grant of asylum pursuant to section 208(c)(2) of the Act, 8 U.S.C. § 1158(c)(2) (2000), is not mandatory with respect to an asylee who qualifies for and merits adjustment of status and a waiver of inadmissibility under sections 209(b) and (c) of the Act.
SECTION 212(C) WAIVERS
Matter of Rodarte, 21 I&N Dec. 150 (BIA 1995)
(1) The regulations at 8 C.F.R. § 245.1(f) (1995) permit concurrent applications for relief under sections 212(c) and 245 of the Immigration and Nationality Act, 8 U.S.C. §§ 1182(c) and 1255 (1994). Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993), clarified.
(2) The regulation applies where the respondent is seeking further consideration of his section 212(c) application, as well as where initial consideration of the application is sought.
3) Reopening to allow the respondent to apply for section 212(c) and section 245 relief is granted where the respondent last appeared before an Immigration Judge in 1990, and since that time has married a United States citizen, had two citizen children, worked steadily, and maintained a clean record.
Matter of Azurin, 23 I&N Dec. 695 (BIA 2005)
An alien who, prior to the 1996 amendments made to former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), pled guilty to an offense that rendered him inadmissible as an alien convicted of a crime involving moral turpitude, as well as removable based on his conviction for an aggravated felony and a firearms offense, may seek a waiver of his inadmissibility under section 212(c) in conjunction with an application for adjustment of status, despite regulatory changes relating to the availability of section 212(c) relief. Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993), reaffirmed.
Matter of Gonzalez, 21 I&N Dec. 937 (BIA 1997)
An alien who is deportable under sections 241(a)(2)(A)(iii) and (B)(i) of the Immigration and Nationality Act, 8 U.S.C. §§1251(a)(2)(A)(iii) and (B)(i) (1994), is ineligible for a waiver of inadmissibility under section 212(c) of the Act, 8 U.S.C. §1182(c) (1994), as amended by section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub L. No. 104-132, 110 Stat. 1214, 1277 (enacted Apr. 24, 1996), regardless of whether the waiver is requested alone or in conjunction with an application for adjustment of status.
Matter of Fortiz, 21 I&N Dec. 1199 (BIA 1998)
(1) An alien who is deportable under section 241(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(A)(ii) (1994), as an alien convicted of two or more crimes involving moral turpitude, and whose deportation proceedings were initiated prior to the April 24, 1996, enactment date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”), is not ineligible for a waiver under section 212(c) of the Act (to be codified at 8 U.S.C. § 1182(c)) unless more than one conviction resulted in a sentence or confinement of 1 year or longer pursuant to the former version of section 241(a)(2)(A)(i)(II), prior to its amendment by the AEDPA.
(2) For an alien to be barred from eligibility for a waiver under section 212(c) of the Act as one who “is deportable” by reason of having committed a criminal offense covered by one of the criminal deportation grounds enumerated in the statute, he or she must have been charged with, and found deportable on, such grounds.
Comparable Grounds of Inadmissibility
Matter of Blake, 23 I&N Dec. 722 (BIA 2005)
An alien who is removable on the basis of his conviction for sexual abuse of a minor is ineligible for a waiver under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), because the aggravated felony ground of removal with which he was charged has no statutory counterpart in the grounds of inadmissibility under section 212(a) of the Act, 8 U.S.C. § 1182(a) (2000). Matter of Meza, 20 I&N Dec. 257 (BIA 1991), distinguished.
Matter of Brieva, 23 I&N Dec. 766 (BIA 2005)
(1) The offense of unauthorized use of a motor vehicle in violation of section 31.07(a) of the Texas Penal Code is a crime of violence under 18 U.S.C. §§ 16(b) (2000) and is therefore an aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(F) (2000).
(2) An alien who is removable on the basis of his conviction for a crime of violence is ineligible for a waiver under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. §§ 1182(c) (1994), because the aggravated felony ground of removal with which he was charged has no statutory counterpart in the grounds of inadmissibility under section 212(a) of the Act, 8 U.S.C. §§ 1182(a) (2000).
Matter of Fuentes-Campos, 21 I&N Dec. 905 (BIA 1997)
An applicant for admission in exclusion proceedings who is inadmissible on the basis of a controlled substance offense is statutorily eligible for a waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), as amended by section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1277.
Matter of Arreguin, 21 I&N Dec. 38 (BIA 1995)
(1) An alien who has committed a serious drug offense faces a difficult task in establishing that she merits discretionary relief; nevertheless, the applicant met her burden of demonstrating that relief under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (Supp. V 1993), was warranted where this was her only conviction, the sentencing court noted her acceptance of responsibility and “minor role” in the offense, there was substantial evidence of efforts toward rehabilitation, and the applicant presented unusual or outstanding equities, including nearly 20 years of lawful residence and two minor dependent United States citizen children.
(2) In considering the factors to be weighed in the exercise of discretion with regard to an application for relief under section 212(c) of the Act, evidence such as community ties, property and business holdings, or special service to the community are to be considered in the applicant’s favor; however, the absence of those additional ties in themselves does not negate the weight to be accorded an applicant’s long residence in this country.
Matter of Jimenez, 21 I&N Dec. 567 (BIA 1996)
A waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), is not available to waive an alien's deportability under section 241(a)(3)(B)(iii) of the Act, 8 U.S.C. § 1251(a)(3)(B)(iii) (1994), as an alien convicted of a violation of 18 U.S.C. § 1546 (1994), because there is no comparable statutory counterpart to section 241(a)(3)(B)(iii) among the various grounds for exclusion enumerated in section 212(a) of the Act. Matter of Esposito, 21 I&N Dec. 1 (BIA 1995); Matter of Hernandez-Casillas, 20 I & N Dec. 262 (BIA 1990; A.G. 1991), aff'd, 983 F.2d 231 (5th Cir.1993); Matter of Wadud, 19 I & N Dec. 182 (BIA 1984), followed.
Lawfully Admitted for Permanent Residence
Matter of Villalobos, 26 I&N Dec. 719 (BIA 2016)
(1) Although the Department of Homeland Security has exclusive jurisdiction over applications for adjustment of status under the legalization provisions of section 245A of the Immigration and Nationality Act, 8 U.S.C. § 1255a (2012), the Immigration Judges and the Board of Immigration Appeals have jurisdiction to determine whether an alien was eligible for a previous adjustment under section 245A(b)(1) for purposes of assessing the alien’s removability and current eligibility for relief from removal.
(2) An alien seeking to acquire lawful permanent resident status through the legalization provisions of section 245A of the Act must establish admissibility, both at the time of the initial application for temporary resident status and again when applying for adjustment to permanent resident status under section 245A(b)(1).
(3) An alien who was inadmissible at the time of adjustment of status from temporary resident to permanent resident under section 245A(b)(1) of the Act was not lawfully admitted for permanent residence and is therefore ineligible for a waiver of inadmissibility under former section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994).
Matter of Ponce de Leon, 21 I&N Dec. 154 (BIA 1996, 1997; A.G. 1997)
Absent contrary circuit court precedent, the Board of Immigration Appeals will follow 8 C.F.R. § 212.3(f)(2) (1995), which states that an application for relief under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), shall be denied if the alien has not maintained lawful permanent resident status in the United States for at least 7 consecutive years.
Matter of Cazares, 21 I&N Dec. 188 (BIA 1996, 1997; A.G. 1997)
(1) In cases arising within the jurisdiction of the United States Court of Appeals for the Ninth Circuit, the Board of Immigration Appeals will follow the holding of that court in Ortega de Robles v. INS, 58 F.3d 1355 (9th Cir.1995), that a lawful permanent resident, who gained such status under section 245A of the Immigration and Nationality Act, 8 U.S.C. § 1255a (1994), by first becoming a lawful temporary resident, establishes "lawful domicile" for under section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994), for purposes of eligibility as of the date the alien filed his or her application for temporary resident status.
(2) Although Ortega de Robles v. INS, supra, is in conflict with and does not explicitly address the provisions of 8 C.F.R. § 212.3(f)(2) (1995), an Attorney General regulation that would otherwise control the Immigration Judges and this Board, the Board will not decline to follow the holding in Ortega de Robles in cases arising within the Ninth circuit, particularly where the court has ruled on the specific legal issue before the Board, the Immigration and Naturalization Service does not argue that the relevant regulation represents anything other than the codification of prior Board precedent, and the Service has advised the Board that the Attorney General has decided not to seek further review of that court decision and that "a 'Departmental review' with a view to amendment of the regulation will be conducted."
Matter of Soriano, 21 I&N Dec. 516 (BIA 1996; A.G. 1997) (superseded by regulation)
(1) The 1996 amendments to section 212(c) of the Immigration and Nationality Act, 8U.S.C. § 1182(c) (1994), bar relief to aliens deportable by reason of having committed any of the criminal offenses described in the amended section 212(c).
(2) The bar to relief under the amended section 212(c) applies only to applications filed after the April 24, 1996, date of enactment of the amendments.
(3) The respondent remained eligible for relief under the amended section 212(c) of the Act because his application for that relief had been filed by April 24, 1996.
Matter of Davis, 22 I&N Dec. 1411 (BIA 2000)
(1) Pursuant to Henderson v. INS, 157 F.3d 106 (2d Cir. 1998), cert. denied sub nom. Reno v. Navas, 526 U.S. 1004 (1999), a respondent within the jurisdiction of the United States Court of Appeals for the Second Circuit whose deportation proceedings were pending on April24, 1996, is not subject to the amendments made to section 212(c) of the Immigration and Nationality Act, 8U.S.C. §1182(c) (1994), by section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1277 ("AEDPA"), as amended by Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, §306(d), 110 Stat. 3009-546, 3009-612.
(2) A respondent convicted of an aggravated felony for which he served more than 5 years in prison is barred from establishing eligibility for a section 212(c) waiver if the provisions of section 440(d) of the AEDPA are inapplicable to him.
Matter of Moreno-Escobosa, 25 I&N Dec. 114 (BIA 2009)
(1) The date of an alien’s plea agreement, rather than the date of sentencing, is controlling in determining whether the alien is eligible for a waiver under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994).
(2) The decision of the United States Court of Appeals for the Ninth Circuit in Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009), does not invalidate 8 C.F.R. § 1212.3 (2009), so as to preclude an alien who seeks to waive a deportation ground from establishing eligibility for section 212(c) relief.
SECTION 212(d)(3)(A) WAIVERS
Matter of Khan, 26 I&N Dec. 797 (BIA 2016)
Immigration Judges do not have authority to adjudicate a request for a waiver of inadmissibility under section 212(d)(3)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1182(d)(3)(A)(ii) (2012), by a petitioner for U nonimmigrant status.
SECTION 212(H) WAIVERS
Matter of Yeung, 21 I&N Dec. 610 (BIA 1996, 1997)
(1) Under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (1994), as amended by section 348(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, enacted as Division C of the Departments of Commerce, Justice, and State, and the Judiciary Appropriations Act for 1997, Pub. L. No. 104-208, 110 Stat. 3009, ("IIRIRA"), an alien who has been admitted to the United States as a lawful permanent resident and who has been convicted of an aggravated felony since the date of such admission is ineligible for a waiver.
(2) The amendment to section 212(h) of the Act is effective on the date of the enactment of the IIRIRA (September 30, 1996) and applies to aliens who were in exclusion and deportation proceedings as of that date.
(3) The respondent is ineligible for relief under section 212(h) of the Act because he was convicted of an aggravated felony.
(4) An aggravated felon whose order of deportation had been reversed by a court of appeals and was pending on remand before the Board on September 30, 1996, did not have a final administrative order of deportation on that date, so the restrictions on eligibility for a section 212(h) waiver apply.
(5) Any presumption against the retroactive application of a statute does not apply where Congress has clearly stated that a statute is to be applied retroactively.
Matter of Pineda, 21 I&N Dec. 1017 (BIA 1997)
(1) Section 348(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, enacted as Division C of the Departments of Commerce, Justice, and State, and the Judiciary Appropriations Act for 1997, Pub. L. No. 104-208, 110 Stat. 3009, _____ (“IIRIRA”), enacted on September 30, 1996, amended section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (1994), to add restrictions precluding a grant of a waiver to any alien admitted as a lawful permanent resident who either has been convicted of an aggravated felony since the date of admission or did not have 7 years of continuous residence prior to the initiation of immigration proceedings.
(2) Section 348(b) of the IIRIRA provides that the restrictions in the amendments to section 212(h) of the Act apply to aliens in exclusion or deportation proceedings as of September 30, 1996, unless a final order of deportation has been entered as of such date.
(3) An aggravated felon who had a final administrative order of deportation as of September 30, 1996, would be subject to the restrictions on eligibility for a section 212(h) waiver if his proceedings were thereafter reopened; therefore, his motion to reopen deportation proceedings to apply for adjustment of status in conjunction with a section 212(h) waiver was properly denied.
Matter of Michel, 21 I&N Dec. 1101 (BIA 1998)
(1) Pursuant to 62 Fed. Reg. 10,312, 10,369 (to be codified at 8 C.F.R. § 240.10(a)(1) (interim, effective Apr. 1, 1997), an Immigration Judge must ascertain whether an alien desires representation in removal proceedings.
(2) An alien who has not previously been admitted to the United States as an alien lawfully admitted for permanent residence is statutorily eligible for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act (to be codified at 8 U.S.C. § 1182(h)), despite his conviction for an aggravated felony.
Matter of Ayala, 22 I&N Dec. 398 (BIA 1998)
(1) A discretionary waiver under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (Supp. II 1996), is not available to an alien who has been convicted of an aggravated felony, or to an alien who has not lawfully resided continuously in the United States for the statutorily required period of 7 years, where the alien has previously been lawfully admitted for permanent residence but subsequently has been found to have been excludable at entry or inadmissible on the date admitted.
(2) Matter of Michel, 21 I&N Dec. 1101 (BIA 1998), is not applicable to an alien who has previously been lawfully admitted for permanent residence to the United States but later claims that such admission was not lawful because he concealed from the Immigration and Naturalization Service criminal activities that, if known, would have precluded his admission, so the Immigration Judge correctly found that the respondent was statutorily ineligible for a waiver of inadmissibility under section 212(h) of the Act. Matter of Michel, supra, distinguished.
Matter of Abosi, 24 I&N Dec. 204 (BIA 2007)
A returning lawful permanent resident seeking to overcome a ground of inadmissibility is not required to apply for adjustment of status in conjunction with a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2000).
Matter of Martinez-Zapata, 24 I&N Dec. 424 (BIA 2007)
(1) Any fact (including a fact contained in a sentence enhancement) that serves to increase the maximum penalty for a crime and that is required to be found by a jury beyond a reasonable doubt, if not admitted by the defendant, is to be treated as an element of the underlying offense, so that a conviction involving the application of such an enhancement is a conviction for the enhanced offense. Matter of Rodriguez-Cortes, 20 I&N Dec. 587 (BIA 1992), superseded.
(2) The exception under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2000), for an alien convicted of a single offense of simple possession of 30 grams or less of marijuana does not apply to an alien whose conviction was enhanced by virtue of his possession of marijuana in a “drug-free zone,” where the enhancement factor increased the maximum penalty for the underlying offense and had to be proved beyond a reasonable doubt to a jury under the law of the convicting jurisdiction. Matter of Moncada, 24 I&N Dec. 62 (BIA 2007), clarified.
Matter of Rotimi, 24 I&N Dec. 567 (BIA 2008)
An alien has not “lawfully resided” in the United States for purposes of qualifying for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2006), during any periods in which the alien was an applicant for asylum or for adjustment of status and lacked any other basis on which to claim lawful residence.
Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010)
An alien who entered the United States without inspection and later obtained lawful permanent resident status through adjustment of status has “previously been admitted to the United States as an alien lawfully admitted for permanent residence” and must therefore satisfy the 7-year continuous residence requirement of section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2006), to be eligible for a waiver of inadmissibility.
Matter of Y-N-P-, 26 I&N Dec. 10 (BIA 2012)
An applicant for special rule cancellation of removal under section 240A(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(2) (2006), cannot utilize a waiver of inadmissibility under section 212(h) of the Act, 8 U.S.C. § 1182(h) (2006), to overcome the section 240A(b)(2)(A)(iv) bar resulting from inadmissibility under section 212(a)(2).
Matter of Rivas, 26 I&N Dec. 130 (BIA 2013)
A waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2006), is not available on a “stand-alone” basis to an alien in removal proceedings without a concurrently filed application for adjustment of status, and a waiver may not be granted nunc pro tunc to avoid the requirement that the alien must establish eligibility for adjustment.
Matter of Paek, 26 I&N Dec. 403 (BIA 2014)
An alien who was admitted to the United States at a port of entry as a conditional permanent resident pursuant to section 216(a) of the Immigration and Nationality Act, 8 U.S.C. § 1186a(a) (2012), is an alien "lawfully admitted for permanent residence" who is barred from establishing eligibility for a waiver of inadmissibility under section 212(h) of the Act, 8 U.S.C. § 1182(h) (2012), if he or she was subsequently convicted of an aggravated felony.
Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015)
An alien who adjusted status in the United States, and who has not entered as a lawful permanent resident, is not barred from establishing eligibility for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2012), as a result of an aggravated felony conviction. Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012), and Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), withdrawn.
SECTION 212(I) WAIVERS
Matter of Mendez, 21 I&N Dec. 296 (BIA 1996)
(1) In assessing whether an applicant has met his burden of establishing that a grant of a waiver of inadmissibility is warranted in the exercise of discretion under section 212(h)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. 1182(h)(1)(B) (1994), the Immigration Judge must balance the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented on his behalf to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of this country.
(2) Establishing extreme hardship and eligibility for section 212(h)(1)(B) relief does not create any entitlement to that relief; extreme hardship, once established, is but one favorable discretionary factor to be considered.
(3) The equities that the applicant for section 212(h)(1)(B) relief must bring forward to establish that he merits a favorable exercise of administrative discretion will depend in each case on the nature and circumstances of the ground of exclusion sought to be waived and on the presence of any additional adverse matters, and as the negative factors grow more serious, it becomes incumbent upon the applicant to introduce additional offsetting favorable evidence.
(4) Taking responsibility and showing remorse for one's criminal behavior does constitute some evidence of rehabilitation, although an alien who claims innocence and does not express remorse is not precluded from ever presenting persuasive evidence of rehabilitation by other means.
(5) While the lack of persuasive evidence of rehabilitation may not in itself be an adverse factor, the absence of this equity in the alien's favor may ultimately be determinative in a given case concerning the exercise of discretion under section 212(h)(1)(B) of the Act, particularly where an alien has engaged in serious misconduct and there are questions whether the alien will revert to criminal behavior; and conversely, evidence of rehabilitation in some cases may constitute the factor that raises the significance of the alien's equities in total so as to be sufficient to counterbalance the adverse factors in the case and warrant a favorable exercise of discretion.
Matter of Lazarte, 21 I&N Dec. 214 (BIA 1996)
Section 212(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(i) (1994), which waives inadmissibility under section 212(a)(6)(C) of the Act for fraud or willful misrepresentation of a material fact in relation to procuring a visa, other documentation, or entry into the United States or other benefit provided under the Act, is not applicable to waive inadmissibility under section 212(a)(6)(F) of the Act for document fraud in violation of section 274C of the Act, 8 U.S.C. § 1324c (1994).
Matter of Cervantes, 22 I&N Dec. 560 (BIA 1999)
(1) The recently amended provisions of section 212(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(i) (Supp. II 1996), which require that an alien establish extreme hardship to his or her United States citizen or permanent resident alien spouse or parent in order to qualify for a waiver of inadmissibility, are applicable to pending cases. Matter of Soriano, 21 I&N Dec. 516 (BIA 1996, A.G. 1997), followed.
(2) The factors to be used in determining whether an alien has established extreme hardship pursuant to section 212(i) of the Act include, but are not limited to, the following: the presence of lawful permanent resident or United States citizen family ties to this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to such countries; the financial impact of departure from this country; and, finally, significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate.
(3) The underlying fraud or misrepresentation for which an alien seeks a waiver of inadmissibility under section 212(i) of the Act may be considered as an adverse factor in adjudicating the waiver application in the exercise of discretion. Matter of Tijam, 22 I&N Dec. 408 (BIA 1998), followed.
SECTION 213 WAIVERS
Matter of Ulloa, 22 I&N Dec. 725 (BIA 1999)
Immigration Judges have jurisdiction to grant a waiver of inadmissibility under section 213 of the Immigration and Nationality Act, 8 U.S.C. §1183 (Supp. II 1996), and are required to advise an alien found to be inadmissible as a public charge under section 212(a)(4)(B) of the Act, 8 U.S.C. § 1182(a)(4)(B) (Supp. II 1996), of his or her right to apply for a waiver.
SECTION 237(A)(1)(H) WAIVERS
Matter of TIMA, 26 I&N Dec. 839 (BIA 2016)
A fraud waiver under section 237(a)(1)(H) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(H) (2012), cannot waive an alien’s removability under section 237(a)(2)(A)(i) for having been convicted of a crime involving moral turpitude, even if the conviction is based on the underlying fraud.
Matter of Fu, 23 I&N Dec. 985 (BIA 2006)
Section 237(a)(1)(H) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(H) (2000), authorizes a waiver of removability under section 237(a)(1)(A) based on charges of inadmissibility at the time of admission under section 212(a)(7)(A)(i)(I) of the Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I) (2000), for lack of a valid immigrant visa or entry document, as well as under section 212(a)(6)(C)(i) for fraud or willful misrepresentation of a material fact, where there was a misrepresentation made at the time of admission, whether innocent or not.
Matter of Federiso, 24 I&N Dec. 661 (BIA 2008)
To be eligible for a waiver of removal under section 237(a)(1)(H)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(H)(i) (2006), an alien must establish a qualifying relationship to a living relative.
SECTION 241(A)(1)(H) WAIVERS
Matter of Tijam, 22 I&N Dec. 408 (BIA 1998)
(1) In making the discretionary determination on a waiver of deportability pursuant to section 241(a)(1)(H) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1)(H) (1994), an Immigration Judge should consider the alien’s initial fraud or misrepresentation in the overall assessment of positive and negative factors.
(2) The Board of Immigration Appeals declines to follow the policy set forth by the Commissioner of the Immigration and Naturalization Service in Matter of Alonzo, 17 I&N Dec. 292 (Comm. 1979), that the underlying fraud or misrepresentation for which the alien seeks a waiver should be disregarded.
SMUGGLING OF ALIENS
Matter of Compean, 21 I&N Dec. 51 (BIA 1995)
To be eligible for relief under section 212(d)(11) of the Immigration and Nationality Act, 8 U.S.C. § 1182(d)(11) (Supp. V 1993), both a lawful permanent resident alien returning from a temporary trip abroad and an alien seeking admission or adjustment of status as an immediate relative or family-sponsored immigrant under sections 203(a)(1)-(3) of the Act, 8 U.S.C. §§ 1153(a)(1)-(3) (Supp. V 1993), must show that the object of the alien’s smuggling attempt was the alien’s spouse, parent, son, or daughter.
Matter of Farias, 21 I&N Dec. 269 (BIA 1996, 1997; A.G. 1997)
(1) The waiver provisions of section 241(a)(1)(E)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1)(E)(iii) (1994), were amended to limit availability to aliens who had the required familial relationship to the smuggled alien at the time the smuggling act occurred.
(2) The amendments to the smuggling waiver provision apply to applications filed before, on, or after the date of their enactment, but only if no final determination on the application had been made prior to that date.
(3) Because the decision of the Board of Immigration Appeals was pending review before the Attorney General on certification on the date of enactment of the waiver amendments, no final determination had been made under 8 C.F.R. § 3.1(d)(2) (1996), and the amended version of the waiver applies to the respondent.
(4) The respondent was not married to her current husband at the time she assisted him to enter the United States and therefore is ineligible for a waiver under the amended version of section 241(a)(1)(E)(iii) of the Act.
SUSPENSION OF DEPORTATION
Matter of O-J-O-, 21 I&N Dec. 381 (BIA 1996)
Suspension of deportation was granted where the 24-year-old Nicaraguan respondent lived in the United States since the age of 13, was educated in this country, speaks English fluently, is fully assimilated into American life and culture, is involved in various activities in this country, runs a small trucking business, has no other means of obtaining lawful permanent resident status, and if deported, would return to a country where economic and political conditions were difficult.
Matter of Pilch, 21 I&N Dec. 627 (BIA 1996)
The respondents, husband and wife, failed to show, either individually or cumulatively, factors which demonstrate extreme hardship over and above the normal economic and social disruptions involved in deportation to themselves or to their three United States citizen children in order to establish suspension of deportation under section 244(a) of the Immigration and Nationality Act, 8 U.S.C. § 1254(a) (1994).
Matter of Kao & Lin, 23 I&N Dec. 45 (BIA 2001)
(1) In evaluating an application for suspension of deportation, the hardship to the applicant’s United States citizen child must be given careful consideration, as the applicant’s eligibility for relief may be established by demonstrating that his or her deportation would result in extreme hardship to the child.
(2) The standard for determining “extreme hardship” in applications for suspension of deportation is also applied in adjudicating petitions for immigrant status under section 204(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1154(a)(1) (1994 & Supp. V 1999), as amended, and waivers of inadmissibility under section 212(i) of the Act, 8 U.S.C. § 1182(i) (Supp. V 1999).
(3) The respondents met the extreme hardship requirement for suspension of deportation where their oldest daughter, who is a 15-year-old United States citizen, has spent her entire life in the United States, has been completely integrated into the American lifestyle, and is not sufficiently fluent in the Chinese language to make an adequate transition to daily life in her parents’ native country of Taiwan. Matter of Pilch, 21 I&N Dec. 627 (BIA 1996), distinguished.
Matter of Cervantes, 21 I&N Dec. 351 (BIA 1996)
An alien is not barred from demonstrating continuous physical presence for purposes of section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. 1254(a)(1) (1994), when he has made brief, casual, and innocent departures from the United States during the pendency of his deportation proceedings, and when the Immigration and Naturalization Service has readmitted him as a returning applicant for temporary resident status under section 210 of the Act, 8 U.S.C. § 1160 (1988).
Matter of N-J-B-, 21 I&N Dec. 812 (BIA, AG 1997)
(1) The general effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 is April 1, 1997. Section 309(c)(5) of the IIRIRA creates an exception to the general effective date with regard to suspension of deportation for aliens with pending deportation proceedings and establishes a transition rule to be applied in these pending cases.
(2) Under the provisions of the IIRIRA transition rule, service of the Order to Show Cause ends the period of continuous physical presence prior to the acquisition of the requisite 7 years.
(3) The respondent was served with an Order to Show Cause before the IIRIRA's enactment and deportation proceedings are still pending. Inasmuch as the Order to Show Cause was served prior to the respondent's acquisition of the 7 years' continuous physical presence, she is ineligible for suspension of deportation under the transition rule.
(4) The Attorney General vacates the decision of the Board of Immigration Appeals pending her further determination.
Matter of N-J-B-, 22 I&N Dec. 1057 (BIA, A.G. 1999)
(1) The general effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”), is April 1, 1997. Section 309(c)(5) of the IIRIRA, 110 Stat. at 3009-627, creates an exception to the general effective date with regard to suspension of deportation for aliens with pending deportation proceedings and establishes a transition rule to be applied in these pending cases.
(2) Under the provisions of the IIRIRA transition rule, service of the Order to Show Cause ends the period of continuous physical presence prior to the acquisition of the requisite 7 years.
(3) The respondent was served with an Order to Show Cause before the IIRIRA's enactment and deportation proceedings are still pending. Inasmuch as the Order to Show Cause was served prior to the respondent's acquisition of the 7 years' continuous physical presence, she is ineligible for suspension of deportation under the transition rule.
(4) The Attorney General vacates the decision of the Board of Immigration Appeals pending her further determination.
(5) The Attorney General remands the case to the Board for a determination of the respondent’s eligibility for adjustment of status under section 202 of the Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, tit.II, 111 Stat. 2193, 2193 (1997).
Matter of Nolasco, 22 I&N Dec. 632 (BIA 1999)
For purposes of determining eligibility for suspension of deportation, the period of continuous physical presence ends at the service of the Order to Show Cause and Notice of Hearing (Form I-221) on the alien, irrespective of the date that it was issued.
Matter of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000)
Pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1) (Supp. II 1996), an alien may not accrue the requisite 7 years of continuous physical presence for suspension of deportation after the service of the Order to Show Cause and Notice of Hearing (Form I-221), as service of the Order to Show Cause ends continuous physical presence.
Matter of Cisneros, 23 I&N Dec. 668 (BIA 2004)
Pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1) (2000), an alien’s period of continuous physical presence in the United States is deemed to end when the alien is served with the charging document that is the basis for the current proceeding.
Service of a charging document in a prior proceeding does not serve to end the alien’s period of continuous physical presence with respect to an application for cancellation of removal filed in the current proceeding. Matter of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000), distinguished.
TEMPORARY PROTECTED STATUS
Matter of Barrientos, 24 I&N Dec. 100 (BIA 2007)
Section 244(b)(5)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1254(b)(5)(B) (2000), permits an alien to assert his right to Temporary Protected Status in removal proceedings, even if his application has previously been denied by the Administrative Appeals Unit.
Matter of Lopez-Aldana, 25 I&N Dec. 49 (BIA 2009)
An applicant for Temporary Protected Status may seek de novo review by an Immigration Judge in removal proceedings, regardless of whether all appeal rights before the Department of Homeland Security have been exhausted. Matter of Barrientos, 24 I&N Dec. 100 (BIA 2007), clarified.
Matter of Echeverria, 25 I&N Dec. 512 (BIA 2011)
(1) A late initial registrant for Temporary Protected Status (“TPS”) under 8 C.F.R. § 1244.2(f)(2) (2011) must independently meet all initial registration requirements of TPS.
(2) One of the initial registration requirements applicable to a late initial registrant is that the applicant must be a national (or, in the case of an alien having no nationality, a habitual resident) of a foreign state currently designated for TPS by the Attorney General.
Matter of N-C-M-, 25 I&N Dec. 535 (BIA 2011)
To be eligible for late initial registration for Temporary Protected Status (“TPS”), an applicant filing as the “child of an alien currently eligible to be a TPS registrant” must establish only that he or she qualified as a “child” at the time of the initial registration period, not at the time the application was filed.
Matter of HENRIQUEZ RIVERA, 25 I&N Dec. 575 (BIA 2011)
When an application for Temporary Protected Status that has been denied by the United States Citizenship and Immigration Services (“USCIS”) is renewed in removal proceedings, the Immigration Judge may, in the appropriate circumstances, require the Department of Homeland Security to provide the application that the applicant filed with theUSCIS.
Matter of Figueroa, 25 I&N Dec. 596 (BIA 2011)
When an application for Temporary Protected Status that has been denied by the United States Citizenship and Immigration Services (“USCIS”) is renewed in removal proceedings, the Immigration Judge may consider any material and relevant evidence, regardless of whether the evidence was previously considered in proceedings before the USCIS.
VISA PETITIONS
Matter of Aceijas-Quiroz, 26 I&N Dec. 294 (BIA 2014)
In adjudicating cases involving the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, the Board of Immigration Appeals lacks jurisdiction to review a “no risk” determination by the United States Citizenship and Immigration Services, including the appropriate standard of proof to be applied.
Matter of Introcaso, 26 I&N Dec. 304 (BIA 2014)
(1) In a visa petition case involving the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, the petitioner bears the burden of proving that he has not been convicted of a “specified offense against a minor.”
(2) In assessing whether a petitioner has been convicted of a “specified offense against a minor,” adjudicators may apply the “circumstance-specific” approach, which permits an inquiry into the facts and conduct underlying the conviction to determine if it is for a disqualifying offense.
Matter of Jackson and Erandio, 26 I&N Dec. 314 (BIA 2014)
Section 402(a)(2) of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, 622, which bars the approval of a family based visa petition filed by a petitioner who has been convicted of a “specified offense against a minor” and has not shown that he poses “no risk” to the beneficiary, does not have an impermissible retroactive effect when applied to convictions that occurred before its enactment.
Matter of Calcano de Millan, 26 I&N Dec. 904 (BIA 2017)
For purposes of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, and section 204(a)(1)(A)(viii)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1154(a)(1)(A)(viii)(I) (2012), a United States citizen or lawful permanent resident petitioner has been "convicted" of an offense where either a formal judgment of guilt has been entered by a court or, if adjudication of guilt has been withheld, where (1) a plea, finding, or admission of facts established the petitioner’s guilt and (2) a judge ordered some form of punishment, penalty, or restraint on his or her liberty.
Matter of Izaguirre, 27 I&N Dec. 67 (BIA 2017)
An offense may be a "specified offense against a minor" within the meaning of section 111(7) of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, 592, even if it involved an undercover police officer posing as a minor, rather than an actual minor.
Matter of Xiu Hong Li, Beneficiary of visa petition filed by Bao Yi Xu, 21 I&N Dec. 13 (BIA 1995)
(1) If the provisions of section 101(b)(1)(E) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(E) (1988), have been invoked in order to obtain or confer an immigration benefit by virtue of an adoptive relationship, the natural relationship will not thereafter be recognized for immigration purposes even if it is established that the adoptive relationship has been legally terminated.
(2) A natural parent-child relationship can again be recognized for immigration purposes following the legal termination of an adoption meeting the requirements of section 101(b)(1)(E) of the Act if the petitioner can establish the following four criteria: (1) that no immigration benefit was obtained or conferred through the adoptive relationship, (2) that a natural parent-child relationship meeting the requirements of section 101(b) of the Act once existed, (3) that the adoption has been lawfully terminated under applicable law, and (4) that the natural relationship has been reestablished by law.
Matter of Ma, 22 I&N Dec. 67 (BIA 1998)
In considering the opinion of the United States Court of Appeals for the Ninth Circuit in Young v. Reno, 114 F.3d 879 (9th Cir. 1997), the Board of Immigration Appeals reaffirms its holding in Matter of Li, 20 I&N Dec. 700 (BIA 1993), that a petitioner who qualifies as an adopted child under section 101(b)(1)(e) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(e) (1994), cannot confer immigration benefits on a natural sibling.
Matter of Rumonat Iyabode ANIFOWOSHE, Beneficiary of a visa petition filed by Abayomi M. Fakunle, Petitioner, 24 I&N Dec. 442 (BIA 2008)
An alien child who was adopted under the age of 18, and whose natural sibling was subsequently adopted by the same adoptive parent or parents while under the age of 16, may qualify as a “child” within the meaning of section 101(b)(1)(E) of the Immigration and Nationality Act, 8 U.S.C.A. § 1101(b)(1)(E) (West 2008), even if the child’s adoption preceded that of the younger sibling.
Matter of R. Huang, 26 I&N Dec. 627 (BIA 2015)
The beneficiary of a visa petition who was adopted pursuant to a State court order that was entered when the beneficiary was more than 16 years old, but with an effective date prior to his or her 16th birthday, may qualify as an adopted child under section 101(b)(1)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(E)(i) (2012), so long as the adoption petition was filed before the beneficiary’s 16th birthday and the State in which the adoption was entered expressly permits an adoption decree to be dated retroactively. Matter of Cariaga, 15 I&N Dec. 716 (BIA 1976), and Matter of Drigo, 18 I&N Dec. 223 (BIA 1982), modified.
Matter of Cabrera, 21 I&N Dec. 589 (BIA 1996) (Dominican Republic)
A child born out of wedlock in the Dominican Republic is placed in the same legal position as one born in wedlock once the child has been acknowledged by the father in accordance with Dominican law and hence qualifies as a "legitimated" child under section 101(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(C) (1994). Matter of Reyes, 17 I & N Dec. 512 (BIA 1980), overruled.
Matter of Bueno, 21 I&N Dec. 1029 (BIA 1997)
(1) In order to qualify as the legitimated child of the petitioner under section 101(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(C) (1994), the beneficiary must be the biological child of the petitioner.
(2) A delayed birth certificate does not necessarily offer conclusive evidence of paternity even if it is unrebutted by contradictory evidence; it must instead be evaluated in light of the other evidence of record and the circumstances of the case.
Matter of Martinez, 21 I&N Dec. 1035 (BIA 1997) (Dominican Republic)
(1) A child legitimated under the laws of his or her residence or domicile may only be included within the definition of the term “child” provided in section 101(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(C) (1994), if the legitimizing act occurred prior to the child’s 18th birthday.
(2) In order to qualify as a legitimated child under section 101(b)(1)(C) of the Act, a child residing or domiciled in the Dominican Republic must have been under the age of 18 at the time the new law regarding legitimation took effect and must have been acknowledged by his or her father prior to her 18th birthday, unless he or she was legitimated under the former laws of that country.
Matter of Torres, 22 I&N Dec. 28 (BIA 1998) (Peru)
In order to qualify as a “legitimated” child under section 101(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. §1101(b)(1)(C)(1994), a child residing or domiciled in Peru must have been under the age of 18 at the time the changes in Peruvian law regarding legitimation took effect, and “extramarital filiation” must have been established prior to the child’s 18th birthday, unless he or she was legitimated under the former laws of that country. Matter of Quispe, 16 I&N Dec. 174 (BIA 1977); and Matter of Breninzon, 19 I&N Dec. 40 (BIA 1984), modified.
Matter of Pagan, 22 I&N Dec. 547 (BIA 1999)
(1) Although the paternity of a beneficiary must be established in order to qualify as a “legitimated” child under section 101(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. §1101(b)(1)(C) (1994), the child’s father need not prove that they have any relationship other than a purely biological one.
(2) As blood tests are the sole manner of proving a claimed biological relationship expressly mentioned in the federal regulations that do not require any previous personal relationship between a father and his child, when primary evidence of paternity in the form of a birth certificate is unavailable or insufficient, the Immigration and Naturalization Service should, in its request for additional evidence, advise a petitioner of the alternative of submitting the results of blood tests if affidavits and historical secondary evidence are not available.
Matter of Moraga, 23 I&N Dec. 195 (BIA 2001) (El Salvador)
A child born out of wedlock in El Salvador on or after December 16, 1965, is placed in the same legal position as one born in wedlock once the child’s paternity is established and therefore qualifies as a “legitimated” child under section 101(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(C) (1994). Matter of Ramirez, 16 I&N Dec. 222 (BIA 1977), modified.
Matter of Perez-Vargas, 23 I&N Dec. 829 (BIA 2005) overruled by Matter of Marcal Neto, et al, 25 I&N Dec. 169 (BIA 2010)
Immigration Judges have no authority to determine whether the validity of an alien’s approved employment-based visa petition is preserved under section 204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j) (2000), after the alien’s change in jobs or employers.
Matter of Marcal Neto, et al., 25 I&N Dec. 169 (BIA 2010)
Immigration Judges have authority to determine whether the validity of an alien’s approved employment-based visa petition is preserved under section 204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j) (2006), after the alien’s change in jobs or employers. Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005), overruled.
Matter of Al Wazzan, 25 I&N Dec. 559 (AAO, 2010)
(1) Although section 204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j) (2000), provides that an employment-based immigrant visa petition shall remain valid with respect to a new job if the beneficiary’s application for adjustment of status has been filed and remained unadjudicated for 180 days, the petition must have been “valid” to begin with if it is to “remain valid with respect to a new job.”
(2) To be considered “valid” in harmony with related provisions and with the statute as a whole, the petition must have been filed for an alien who is “entitled” to the requested classification and that petition must have been “approved” by a U.S. Citizenship and Immigration Services (“USCIS”) officer pursuant to his or her authority under the Act.
(3) Congress specifically granted USCIS the sole authority to make eligibility determinations for immigrant visa petitions under section 204(b) of the Act.
(4) An unadjudicated immigrant visa petition is not made “valid” merely through the act of filing the petition with USCIS or through the passage of 180 days.
Matter of Lovo, 23 I&N Dec. 746 (BIA 2005)
(1) The Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996), does not preclude, for purposes of Federal law, recognition of a marriage involving a postoperative transsexual, where the marriage is considered by the State in which it was performed as one between two individuals of the opposite sex.
(2) A marriage between a postoperative transsexual and a person of the opposite sex may be the basis for benefits under section 201(b)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1151(b)(2)(A)(i) (2000), where the State in which the marriage occurred recognizes the change in sex of the postoperative transsexual and considers the marriage a valid heterosexual marriage.
Matter of Kodwo, 24 I&N Dec. 479 (BIA 2008)
While a court order remains the preferred method of establishing the dissolution of a customary tribal marriage under Ghanaian law, affidavits executed by the heads of household, i.e., the fathers of the couple, that meet specified evidentiary requirements may be sufficient to establish a divorce for immigration purposes. Matter of Kumah,19 I&N Dec. 290 (BIA 1985), modified.
Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013)
Section 3 of the Defense of Marriage Act, Pub. L. No. 104 199, 110 Stat. 2419, 2419 (1996), is no longer an impediment to the recognition of lawful same-sex marriages and spouses under the Immigration and Nationality Act if the marriage is valid under the laws of the State where it was celebrated.
Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009)
(1) An alien’s unopposed motion to continue ongoing removal proceedings to await the adjudication of a pending family-based visa petition should generally be granted if approval of the visa petition would render him prima facie eligible for adjustment of status. Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), followed.
In determining whether good cause exists to continue such proceedings, a variety of factors may be considered, including, but not limited to: (1) the Department of Homeland Security’s response to the motion to continue; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of status; (4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and any other relevant procedural factors.
Matter of Lamus, 25 I&N Dec. 61 (BIA 2009)
A motion to reopen to apply for adjustment of status based on a marriage entered into after the commencement of removal proceedings may not be denied under the fifth factor enumerated in Matter of Velarde, 23 I&N Dec. 253 (BIA 2002), based on the mere fact that the Government has filed an opposition to the motion, without regard to the merit of that opposition.
Siblings - Proof of Relationship
Matter of Ruzku, 26 I&N Dec. 731 (BIA 2016)
Direct sibling-to-sibling DNA test results reflecting a 99.5 percent degree of certainty or higher that a full sibling biological relationship exists should be accepted and considered to be probative evidence of the relationship.
Matter of Otiende, 26 I&N Dec. 127 (BIA 2013)
Although a visa petition filed by a petitioner for a spouse may be subject to denial under section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (2006), based on the spouse’s prior marriage, that section does not prevent the approval of a petition filed on behalf of the spouse’s child, which must be considered on its merits to determine whether the child qualifies as the petitioner’s “stepchild” under the Act.
Matter of Minkova, 22 I&N Dec. 1161 (BIA 1999)
There is no provision in the Immigration and Nationality Act for a widow or widower to file a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) on behalf of a child; however, under 8 C.F.R. §204.2(b)(4) (1999), the child may be eligible for derivative classification as an immediate relative and may accompany or follow to join the principal alien (widow or widower) to the United States, if the principal alien includes the child in a visa petition filed pursuant to section 204(a)(1)(A)(ii) of the Act, 8U.S.C. §1154(a)(1)(A)(ii) (1994).
VOLUNTARY DEPARTURE
Matter of C-B-, 25 I&N Dec. 888 (BIA 2012)
(1) In order to meaningfully effectuate the statutory and regulatory privilege of legal representation where it has not been expressly waived by a respondent, an Immigration Judge must grant a reasonable and realistic period of time to provide a fair opportunity for the respondent to seek, speak with, and retain counsel.
(2) If a respondent expresses a fear of persecution or harm in a country to which he or she might be removed, the regulations require the Immigration Judge to advise the respondent of the right to apply for asylum or withholding of removal (including protection under the Convention Against Torture) and make the appropriate application forms available.
(3) If a respondent indicates that he or she will not waive appeal and is therefore ineligible or a grant of voluntary departure prior to the completion of removal proceedings under section 240B(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(a)(1) (2006), the Immigration Judge should consider the respondent’s eligibility for voluntary departure at the
Matter of Ocampo, 22 I&N Dec. 1301 (BIA 2000)
Voluntary departure may not be granted prior to the completion of removal proceedings without an express waiver of the right to appeal by the alien or the alien’s representative.
Matter of Diaz Ruacho, 24 I&N Dec. 47 (BIA 2006)
An alien who fails to post the voluntary departure bond required by section 240B(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b)(3) (2000), is not subject to penalties for failure to depart within the time period specified for voluntary departure.
Matter of M-A-S-, 24 I&N Dec. 762 (BIA 2009)
An Immigration Judge may order an alien detained until departure as a condition of a grant of voluntary departure.
Matter of Velasco, 25 I&N Dec. 143 (BIA 2009)
(1) The voluntary departure regulations at 8 C.F.R. § 1240.26(c)(4), Nt. (2009), which took effect on January 20, 2009, and superseded Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA2006), do not apply retroactively.
(2) Where an Immigration Judge granted voluntary departure prior to January 20, 2009, and the alien failed to timely post the voluntary departure bond required by section 240B(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b)(3) (2006), the former regulatory scheme, as interpreted in Matter of Diaz-Ruacho, remains applicable, and the penalties imposed by section 240B(d)(1) for failure to depart within the voluntary departure period do not apply.
(3) Pursuant to 8 C.F.R. § 1240.26(c)(3)(ii), Nt., a voluntary departure order entered by an Immigration Judge on or after January 20, 2009, will not be reinstated by the Board of Immigration Appeals in its final order on appeal unless the alien provides the Board, within 30 days of filing the appeal, sufficient proof that the voluntary departure bond was timely posted with the Department of Homeland Security.
Matter of Gamero, 25 I&N Dec. 164
(1) Pursuant to 8 C.F.R. § 1240.26(c)(3) (2010), an Immigration Judge who grants an alien voluntary departure must advise the alien that proof of posting of a bond with the Department of Homeland Security must be submitted to the Board of Immigration Appeals within 30 days of filing an appeal and that the Board will not reinstate a period of voluntary departure in its final order unless the alien has timely submitted sufficient proof that the required bond has been posted.
(2) Where the Immigration Judge did not provide all the advisals that are required upon granting voluntary departure and the respondent failed to submit timely proof to the Board that a voluntary departure bond had been posted, the record was remanded for the Immigration Judge to grant a new period of voluntary departure and to provide the required advisals.
Matter of Cordova, 22 I&N Dec. 966 (BIA 1999)
(1) If the evidence in the record does not indicate that an alien has been convicted of an aggravated felony or charged with deportability under section 237(a)(4) of the Immigration and Nationality Act, 8 U.S.C. §1227(a)(4) (Supp. II 1996), the Immigration Judge has the duty to provide the alien with information about the availability and requirements of voluntary departure under section 240B(a) of the Act, 8 U.S.C. §1229c(a) (Supp. II 1996), and to provide the alien the opportunity to apply for this relief prior to taking the pleadings.
(2) An alien does not forfeit the right to apply for voluntary departure under section 240B(a) of the Act by appealing an erroneous denial of this relief.
Matter of Zmijewska, 24 I&N Dec. 87 (BIA 2007)
(1) The Board of Immigration Appeals lacks authority to apply an “exceptional circumstances” or other general equitable exception to the penalty provisions for failure to depart within the time period afforded for voluntary departure under section 240B(d)(1) of the Immigration and Nationality Act, 8 U.S.C.A. § 1229c(d)(1) (West Supp. 2006).
(2) An alien has not voluntarily failed to depart the United States under section 240B(d)(1) of the Act when the alien, through no fault of his or her own, was unaware of the voluntary departure order or was physically unable to depart within the time granted.
Matter of Singh, 21 I&N Dec. 998 (BIA 1997)
Matter of Shaar, 21 I&N Dec. 541 (BIA 1996), is not applicable to an alien who was ordered deported at an in absentia hearing and has therefore not remained beyond a period of voluntary departure; consequently, the proceedings may be reopened upon the filing of a timely motion showing exceptional circumstances for failure to appear. Matter of Shaar, supra, distinguished.
Matter of Shaar, 21 I&N Dec. 541 (BIA 1996)
(1) An alien who has filed a motion to reopen during the pendency of a voluntary departure period in order to apply for suspension of deportation and who subsequently remains in the United States after the scheduled date of departure is statutorily ineligible for suspension of deportation pursuant to section 242B(e)(2)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1252b(e)(2)(A) (Supp. V 1993), if the notice requirements of that section have been satisfied, absent a showing that the alien's failure to timely depart the United States was due to "exceptional circumstances" under section 242B(f)(2) of the Act.
(2) Neither the filing of a motion to reopen to apply for suspension of deportation during the pendency of a period of voluntary departure, nor the Immigration Judge's failure to adjudicate the motion to reopen prior to the expiration of the alien's voluntary departure period constitutes an "exceptional circumstance."
Matter of Arguelles, 22 I&N Dec. 811 (BIA 1999)
(1) Effective April 1, 1997, an alien may apply for voluntary departure either in lieu of being subject to removal proceedings or before the conclusion of the proceedings under section 240B(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(a) (Supp. II 1990), or at the conclusion of the proceedings under section 240B(b) of the Act.
(2) An alien who applies for voluntary departure at the conclusion of removal proceedings pursuant to section 240B(b) of the Act must demonstrate, inter alia, both good moral character for a period of 5 years preceding the application for relief and the financial means to depart the United States, but an alien who applies before the conclusion of the proceedings pursuant to section 240B(a) is not subject to those requirements.
(3) Although an alien who applies for voluntary departure under either section 240B(a) or 240B(b) of the Act must establish that a favorable exercise of discretion is warranted upon consideration of the factors set forth in Matter of Gamboa, 14 I&N Dec. 244 (BIA 1972), which governed applications for voluntary departure under the former section 244(e) of the Act, 8 U.S.C. § 1254(e) (1970), the Immigration Judge has broader authority to grant voluntary departure in discretion before the conclusion of removal proceedings under section 240B(a) than under section 240B(b) or the former section 244(e). Matter of Gamboa, supra, followed.
(4) An alien who had been granted voluntary departure five times pursuant to former section 244(e) of the Act and had returned each time without inspection was eligible to apply for voluntary departure in removal proceedings under section 240B, because the restrictions on eligibility of section 240B(c), relating to aliens who return after having previously been granted voluntary departure, only apply if relief was granted under section 240B.
Matter of A-M-, 23 I&N Dec. 737 (BIA 2005)
(1) Absent specific reasons for reducing the period of voluntary departure initially granted by the Immigration Judge at the conclusion of removal proceedings, the Board of Immigration Appeals will reinstate the same period of time for voluntary departure afforded to the alien by the Immigration Judge. Matter of Chouliaris, 16 I&N Dec. 168 (BIA 1977), modified.
(2) The respondent, whose asylum application was not filed within a year of his arrival in the United States, failed to demonstrate his eligibility for an exception to the filing deadline or for any other relief based on his claim of persecution in Indonesia, but the 60-day period of voluntary departure granted to him by the Immigration Judge was reinstated.
WITHHOLDING OF REMOVAL
Matter of C-T-L-, 25 I&N Dec. 341 (BIA 2010)
The “one central reason” standard that applies to asylum applications pursuant to section 208(b)(1)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(B)(i) (2006), also applies to applications for withholding of removal under section 241(b)(3)(A) of the Act, 8 U.S.C. § 1231(b)(3)(A) (2006).
Convention Against Torture (CAT) Claims
See Convention Against Torture
Matter of Q-T-M-T-, 21 I&N Dec. 639 (BIA 1996)
(1) Under section 243(h)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h)(2) (1994), an alien convicted of an aggravated felony is considered to have committed a particularly serious crime, which bars the alien from applying for withholding of deportation under section 243(h)(1) of the Act ("aggravated felony bar").
(2) Under section 243(h)(3) of the Act (to be codified at 8U.S.C. § 1253(h)(3)), as enacted by section 413(f) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (enacted Apr. 24, 1996) ("AEDPA"), the Attorney General may apply section 243(h)(1) of the Act to any alien, notwithstanding any other provision of law, if she determines in her discretion that it is necessary to do so "to ensure compliance with the 1967 United Nations Protocol Relating to the Status of Refugees," Jan. 31, 1967, 1968 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 268 ("Protocol").
(3) Section 243(h)(3) of the Act did not repeal the aggravated felony bar directly or by implication, but amended it to the limited extent necessary to ensure that refoulement of a particular criminal alien would not place compliance with the Protocol in jeopardy.
(4) Under the provisions of section 305(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, enacted as Division C of the Departments of Commerce, Justice, and State, and the Judiciary Appropriations Act for 1997, Pub. L. No. 104-208, 110 Stat. 3009,___ (effective April 1, 1997) ("IIRIRA"), an alien convicted of one or more aggravated felonies for which the aggregate sentence is at least 5 years is considered to have committed a particularly serious crime, which bars the alien from eligibility for withholding of removal.
(5) In cases governed by the provisions of section 243(h) of the Act, the standards for determining whether the deportation of an alien convicted of an aggravated felony, as defined in the AEDPA, must be withheld under section 243(h)(1) in order to ensure compliance with the Protocol should not be inconsistent with the relevant provisions of the IIRIRA.
(6) For purposes of applying section 243(h) of the Act, an alien who has been convicted of an aggravated felony, as defined in the AEDPA, and sentenced to an aggregate of at least 5 years' imprisonment, is deemed conclusively barred from relief under section 243(h)(1), and such ineligibility is in compliance with the Protocol.
(7) For purposes of applying section 243(h) of the Act, an alien convicted of an aggravated felony, as defined in the AEDPA, who has been sentenced to less than 5 years' imprisonment, is subject to a rebuttable presumption that he or she has been convicted of a particularly serious crime, which bars eligibility for relief under section 243(h)(1) of the Act.
(8) For purposes of applying section 243(h) of the Act, in determining whether or not a particular aggravated felon, as defined in the AEDPA, who has not been sentenced to at least 5 years' imprisonment, has overcome the presumption that he or she has committed a particularly serious crime, consistent with the meaning of that term in the Protocol, the appropriate standard is whether there is any unusual aspect of the alien's particular aggravated felony conviction that convincingly evidences that the crime cannot rationally be deemed "particularly serious" in light of treaty obligations under the Protocol.
(9) Although the respondent's convictions for "illicit trafficking in firearms" fall within the aggravated felony definition of the AEDPA and he has been sentenced to less than 5 years' imprisonment, the nature and circumstances of the convictions are such that overriding the aggravated felony bar in this case is not necessary to ensure the United States' compliance with the Protocol.
Matter of L-S-J-, 21 I&N Dec. 973 (BIA 1997) (Robbery)
(1) An asylum applicant who has been convicted of robbery with a deadly weapon (handgun) and sentenced to 2 1/2 years in prison is not eligible for asylum because he has been convicted of an aggravated felony, that is, a crime of violence for which the sentence is at least 1 year.
(2) An applicant for withholding of deportation who has been convicted of robbery with a deadly weapon (handgun) has been convicted of a particularly serious crime and is not eligible for withholding of deportation regardless of the length of his sentence.
Matter of S-S-, 22 I&N Dec. 458 (BIA 1999) (overruled by Matter of Y-L-, A-G- and R-S-R-, 23 I&N Dec. 270 (A.G. 2002)
(1) Under section 241(b)(3)(B)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1251(b)(3)(B)(ii) (Supp. II 1996), a determination of whether an alien convicted of an aggravated felony and sentenced to less than 5 years’ imprisonment has been convicted of a “particularly serious crime,” thus barring the alien from withholding of removal, requires an individual examination of the nature of the conviction, the sentence imposed, and the circumstances and underlying facts of the conviction. Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982), followed.
(2) Under section 241(b)(3)(B) of the Act, a determination of whether an aggravated felony conviction constitutes a “particularly serious crime” per se is based on the length of sentence imposed, rather than on the category or type of aggravated felony conviction that resulted in the conviction. Matter of Gonzalez, 19 I&N Dec. 692 (BIA 1988), explained and distinguished.
(3) Under section 241(b)(3)(B) of the Act, there no longer exists a rebuttable presumption that an alien convicted of an aggravated felony for which a sentence of less than 5 years was imposed has been convicted of a “particularly serious crime” rendering the alien ineligible for withholding of deportation. Matter of Q-T-M-T-, 21 I&N Dec. 639 (BIA 1996), distinguished.
(4) An alien who was convicted of first degree robbery of an occupied home while armed with a handgun and sentenced to 55 months’ imprisonment has been convicted of an aggravated felony under section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F) (Supp. II 1996), and, upon consideration of the nature of the conviction and the sentence imposed, as well as the underlying facts and circumstances of the conviction, has been convicted of a “particularly serious crime” rendering the alien ineligible for withholding of removal under section 241(b)(3)(B)(ii) of the Act.
Matter of L-S-, 22 I&N Dec. 645 (BIA 1999) (Bringing Undocumented Aliens to U.S.)
(1) Under Section 241(b)(3)(B)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)(B)(ii) (Supp. II 1996), a determination whether an alien convicted of an aggravated felony and sentenced to less than 5 years’ imprisonment has been convicted of a “particularly serious crime,” thus barring the alien from withholding of removal, requires an individual examination of the nature of the conviction, the sentence imposed, and the circumstances and underlying facts of the conviction. Matter of S-S-, 22 I&N Dec. 458 (BIA 1999); and Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982), followed.
(2) An alien who was convicted of bringing an illegal alien into the United States in violation of section 274(a)(2)(B)(iii) of the Act, 8 U.S.C. § 1324(a)(2)(B)(iii) (1994 & Supp. II 1996), and sentenced to 3½ months’ imprisonment has, upon consideration of the nature of the conviction and the sentence imposed, as well as the underlying facts and circumstances of the conviction, not been convicted of a “particularly serious crime” and is eligible to apply for withholding of removal under section 241(b)(3)(B)(ii) of the Act.
Matter of Y-L-, A-G- and R-S-R-, 23 I&N Dec. 270 (A.G. 2002)
(1) Aggravated felonies involving unlawful trafficking in controlled substances presumptively constitute “particularly serious crimes” within the meaning of section 241(b)(3)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)(B) (2000), and only under the most extenuating circumstances that are both extraordinary and compelling would departure from this interpretation be warranted or permissible. Matter of S-S-, 22 I&N Dec. 458 (BIA 1999), overruled.
(2) The respondents are not eligible for deferral of removal under Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment where each failed to establish that the torture feared would be inflicted by or with the acquiescence of a public official or other person acting in an official capacity. Matter of S-V-, 22 I&N Dec. 1306 (BIA 2000), followed.
Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007)
(1) In order to be considered a particularly serious crime under section 241(b)(3)(B)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)(B)(ii) (2000), an offense need not be an aggravated felony under section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (2000 & Supp. IV 2004).
(2) Once the elements of an offense are found to potentially bring it within the ambit of a particularly serious crime, all reliable information may be considered in determining whether the offense constitutes a particularly serious crime, including but not limited to the record of conviction and sentencing information.
Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007)
(1) In order to be considered a particularly serious crime under section 241(b)(3)(B)(ii) of the Immigration and Nationality Act, 8 U.S.C. §§ 1231(b)(3)(B)(ii) (2000), an offense need not be an aggravated felony under section 101(a)(43) of the Act, 8 U.S.C. §§ 1101(a)(43) (2000 & Supp. IV 2004).
(2) Once the elements of an offense are found to potentially bring it within the ambit of a particularly serious crime, all reliable information may be considered in determining whether the offense constitutes a particularly serious crime, including but not limited to the record of conviction and sentencing information
Matter of R-A-M-, 25 I&N Dec. 657 (BIA 2012)
The respondent's conviction for possession of child pornography is for a particularly serious crime under section 241(b)(3)(B)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)(B)(ii) (2006), based on the nature of the offense and the specific facts and circumstances of the crime.
Matter of M-H-, 26 I&N Dec. 46 (BIA 2012)
The holding in Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007), that an offense need not be an aggravated felony to be considered a particularly serious crime for purposes of barring asylum or withholding of removal, should be applied to cases within the jurisdiction of the United States Court of Appeals for the Third Circuit.
Matter of G-G-S-, 26 I&N Dec. 339 (BIA 2014)
An alien's mental health as a factor in a criminal act falls within the province of the criminal courts and is not considered in assessing whether the alien was convicted of a "particularly serious crime" for immigration purposes.
Matter of I-S- & C-S-, 24 I&N Dec. 432 (BIA 2008)
When an Immigration Judge issues a decision granting an alien’s application for withholding of removal under section 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3) (2000), without a grant of asylum, the decision must include an explicit order of removal.
Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014)
In the ordinary course of removal proceedings, an applicant for asylum or for withholding or deferral of removal is entitled to a hearing on the merits of those applications, including an opportunity to provide oral testimony and other evidence, without first having to establish prima facie eligibility for the requested relief. Matter of Fefe, 20 I&N Dec. 116 (BIA 1989), followed.
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