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2007

  • BIA Rules State Conviction Based on Recidivism Not Automatically an Aggravated Felony(112 KB - 12/28/2007)
    The BIA held that absent controlling authority on “recidivist possession”, alien’s state conviction for simple possession of controlled substance won’t be considered aggravated felony. Matter of Jose Anget Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007)
    AILA Doc. No. 07122864.
  • BIA Rules Individuals Unlawfully Present Who Later Depart the Country Are Inadmissible(33 KB - 11/30/2007)
    The BIA held that an individual who is unlawfully present for a period of one year, departs the country, and then seeks admission within ten years of the date of his departure, is inadmissible. Matter of Lemus-Losa, 24 I&N Dec. 373 (BIA 2007)
    AILA Doc. No. 07113071.
  • BIA Rules Recidivist Immigration Violators are Inadmissible(58 KB - 11/30/2007)
    The BIA held that recidivist immigration violators are inadmissible and that adjustment of status under section 245(i) of the Act is not available to an individual who is inadmissible. Matter of Briones, 24 I&N Dec. 355 (BIA 2007)
    AILA Doc. No. 07113070.
  • BIA on Timeliness of MTR and Discrepancies in Stokes Interview(68 KB - 11/2/2007)
    In an unpublished opinion, the BIA held that the thirty-day deadline for motions to reopen USCIS decisions begins on the postmark date and that discrepancies in a Stokes interview are not fatal where there are good solid reasons rebutting the discrepancies. Courtesy of Alan Lee.
    AILA Doc. No. 07110261.
  • BIA Finds Respondent with Final Order is Barred from Filing Untimely MTR(35 KB - 11/1/2007)
    The BIA held that an alien who is subject to a final order of removal is barred from filing an untimely motion to reopen removal proceedings to submit a successive asylum application. Matter of C-W-L-, 24 I&N Dec. 346 (BIA 2007)
    AILA Doc. No. 07110161.
  • BIA Dismisses Charges Against "LA 8" (10/31/2007)
    The BIA ends a 20-year saga by dismissing removal proceedings against a group of Palestinian student activists initially arrested in January 1987. (Matter of Hamide, 10/29/07)
    AILA Doc. No. 07103166.
  • BIA Discusses “Particularly Serious Crimes”(38 KB - 10/25/2007)
    The BIA held that to be considered a particularly serious crime under the INA, an offense need not be an aggravated felony. Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007)
    AILA Doc. No. 07102561.
  • BIA Finds No Conflict Between Law and Regulation Relating to Extreme Hardship Waiver(22 KB - 10/15/2007)
    The BIA held that there is no conflict between the INA and the regulation where both provide the same start date in determining a conditional permanent resident’s application for an extreme hardship waiver and only the statute provides an end date. Matter of Singh, 24 I&N Dec. 331 (BIA 2007)
    AILA Doc. No. 07101560.
  • BIA Rules IJ May Look Outside Record of Conviction For Loss Determination(61 KB - 10/5/2007)
    The BIA held that a single ground for removal may require proof of conviction tied to the statutory elements of a criminal offense, as well as proof of an additional fact or facts that are not tied to the statutory elements of any such offense. Matter of Babaisakov, 24 I&N Dec. 306 (BIA 2007)
    AILA Doc. No. 07100532.
  • BIA Finds FGM is “Fundamental Change in Circumstances” (10/1/2007)
    The BIA held that female genital mutilation (FGM) is a harm that is inflicted only once, thus the procedure itself will normally constitute a “fundamental change in circumstances” such that asylee no longer has a well-founded fear of persecution. Matter of A-T-, 24 I&N Dec. 296 (BIA 2007)
    AILA Doc. No. 07100162.
  • BIA Denies Attorney’s Motion for Reinstatement(14 KB - 9/27/2007)
    The BIA denied Motion for Reinstatement and doubled recommended suspension period to 120 days after attorney violated Board’s immediate Suspension Order by Practicing before Immigration Court. Matter of Jean-Joseph, 24 I&N Dec. 294 (BIA 2007)
    AILA Doc. No. 07092765.
  • BIA Denies Motion for Reinstatement by Attorney Convicted of Fraud(14 KB - 9/27/2007)
    The BIA denied an expelled attorney’s motion for reinstatement to practice because he failed to show that he possessed the moral and professional qualifications to be reinstated to practice. Matter of Krovonos, 24 I&N Dec. 292 (BIA 2007)
    AILA Doc. No. 07092764.
  • AG Remands Material Support Bar Case to BIA(16 KB - 9/27/2007)
    The AG remands case in light of the 2/20/07 determination of the DHS Secretary that INA Sec. 212(a)(3)(B)(iv)(VI) shall not apply with respect to material support provided to the Chin National Front/Chin National Army. Matter of S-K-, 24 I&N Dec. 289 (AG 2007)
    AILA Doc. No. 07092763.
  • BIA Finds Attorney Subject to Discipline for Misrepresentations on LCA(27 KB - 9/21/2007)
    The BIA held that an attorney who knowingly and willfully misled the USCIS by presenting an improperly obtained certified LCA is subject to discipline. Matter of Shah, 24 I&N Dec. 282 (BIA 2007)
    AILA Doc. No. 07092164.
  • BIA Holds Fear of FGM of Daughter Not Sufficient Basis for Asylum or Withholding(29 KB - 9/6/2007)
    The BIA held that an alien may not establish eligibility for asylum or withholding of removal based solely on fear that his or her daughter will be harmed by being forced to undergo female genital mutilation upon returning to the alien’s home country. Matter of A-K, 24 I&N Dec. 275 (BIA 2007)
    AILA Doc. No. 07090663.
  • BIA Holds Assault and Battery Against Family Member Not Categorically a CIMT(18 KB - 8/16/2007)
    The BIA held that the offense of assault and battery against a family or household member in violation of section 18.2-57.2 of the Virginia Code is not categorically a crime involving moral turpitude. Matter of Sejas, 24 I&N Dec. 236 (BIA 2007)
    AILA Doc. No. 07081664.
  • BIA Holds Assault in 3rd Degree is CIMT(31 KB - 8/16/2007)
    The BIA held that the offense of assault in the third degree in violation of section 120.00(1) of the New York Penal Law, which requires both specific intent and physical injury, is a crime involving moral turpitude. Matter of Solon, 24 I&N Dec. 239 (BIA 2007)
    AILA Doc. No. 07081663.
  • BIA Discusses Element of “Approvable When Filed” Standard(21 KB - 8/16/2007)
    The BIA held that to establish eligibility for 245(i) based on a marriage-based visa petition, one must prove that the marriage was bona fide at its inception in order to show that the visa petition was “meritorious in fact”. Matter of Jara Riero and Jara Espinol, 24 I&N Dec. 267 (BIA 2007)
    AILA Doc. No. 07081662.
  • BIA Finds that MTRs Carry Heavy Burden to Show "Changed Circumstances"(49 KB - 8/6/2007)
    The BIA held that respondent did not meet the heavy burden to show that her proffered evidence is material and reflects “changed circumstances arising in the country of nationality” regarding Chinese birth planning policies. Matter of S-Y-G-, 24 I&N Dec. 247 (BIA 2007)
    AILA Doc. No. 07080662.
  • BIA Finds Parent’s LPR Status Cannot be Imputed to Child in 240A Cancellation Cases(26 KB - 7/12/2007)
    The BIA held that a parent’s lawful permanent resident status cannot be imputed to a child for purposes of calculating the five years of LPR required to establish eligibility for cancellation of removal. Matter of Escobar, 24 I&N Dec. 231 (BIA 2007)
    AILA Doc. No. 07071263.
  • BIA Holds Alien Returning to U.S. After Failed Canadian Refugee Application is "Arriving Alien"(50 KB - 7/5/2007)
    The BIA held that an alien who leaves the U.S. and is admitted to Canada to seek refugee status has made a departure and thus is an arriving alien when returning after the denial of an application for refugee status in Canada. Matter of R-D-, 24 I&N Dec. 221 (BIA 2007)
    AILA Doc. No. 07070566.
  • BIA Finds INA §237(a)(2)(E) Does Not Apply to Pre-enactment Convictions(22 KB - 6/28/2007)
    The BIA held that an alien whose conviction precedes the effective date of INA section 237(a)(2)(E) is not “convicted of an offense under” that section and therefore is not barred from establishing eligibility for cancellation of removal. Matter of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007)
    AILA Doc. No. 07062863.
  • BIA Discusses “Mixed Motive” Asylum Cases(52 KB - 6/28/2007)
    The BIA held that under the REAL ID Act, in mixed motive asylum cases, race, religion, nationality, membership in a particular social group, or political opinion must be at least one central reason for the claimed persecution. Matter of J-B-N- & S-M-, 24 I&N Dec. 208 (BIA 2007)
    AILA Doc. No. 07062861.
  • BIA Discusses Waivers of Inadmissibility for LPRs(24 KB - 6/22/2007)
    The BIA held that 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). Matter of Abosi, 24 I&N Dec. 204 (BIA 2007)
    AILA Doc. No. 07062265.
  • BIA Holds Presence Accrues During Application for Cancellation of Removal(50 KB - 6/8/2007)
    The BIA held that an application for special rule cancellation of removal is a continuing one, so an applicant can continue to accrue physical presence until the issuance of a final administrative decision. Matter of Garcia, 24 I&N Dec. 179 (BIA 2007)
    AILA Doc. No. 07060864.
  • BIA Finds Parent with Two Chinese-Born Children May Qualify as a Refugee(65 KB - 6/8/2007)
    The BIA held that a person who fathers or gives birth to two or more children in China may qualify as a refugee if established that the births are a violation of family planning policies that would give rise to a well-founded fear of persecution. Matter of J-H-S-, 24 I&N Dec. 196 (BIA 2007)
    AILA Doc. No. 07060863.
  • BIA Finds No Well-founded Fear for Chinese Parent with Second Child(80 KB - 6/8/2007)
    The BIA held that the evidence did not demonstrate the Chinese has a national policy of requiring forced sterilization of a parent who returns with a second child born abroad or that local sanctions would rise to the level of persecution. Matter of J-W-S-, 24 I&N Dec. 185 (BIA 2007)
    AILA Doc. No. 07060861.
  • BIA Discusses "Frivolous" Asylum Determinations (4/27/2007)
    The BIA held that IJs must address the question of frivolousness separately and that the applicant must be given sufficient opportunity to account for any discrepancies or implausible aspects of the claim. Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007)
    AILA Doc. No. 07042767.
  • BIA Holds Willful Failure to Register by a Sex Offender Is a CIMT (4/24/2007)
    The BIA held that willful failure to register by a sex offender who has been previously apprised of the obligation to register, in violation of section 290(g)(1) of the California Penal Code, is a crime involving moral turpitude. Matter of Tobar-Lobo, 24 I&N Dec. 143 (BIA 2007)
    AILA Doc. No. 07042467.
  • BIA Holds IJ Reacquires Jurisdiction in Remanded Proceedings (4/13/2007)
    The BIA held that when a case is remanded to an IJ for completion of the appropriate background checks, the IJ is required to enter a final order granting or denying the requested relief. Matter of M-D-, 24 I&N Dec. 138 (BIA 2007)
    AILA Doc. No. 07041362.
  • BIA Discusses North Korean Human Rights Act of 2004 (4/10/2007)
    The BIA held that the North Korean Human Rights Act of 2004 does not apply to North Koreans who have availed themselves of the right to citizenship in South Korea. Matter of K-R-Y- and K-C-S-, 24 I&N Dec. 133 (BIA 2007)
    AILA Doc. No. 07041061.
  • BIA Holds Trafficking in Counterfeit Goods is CIMT (4/3/2007)
    The BIA held that the offense of trafficking in counterfeit goods or services in violation of 18 U.S.C. § 2320 (2000) is a crime involving moral turpitude. Matter of Kochlani, 24 I&N Dec. 128 (BIA 2007)
    AILA Doc. No. 07040370.
  • BIA on Mandatory Detention in Light of Transition Period Custody Rules (3/22/2007)
    The BIA held that respondent, who was apprehended at home while on probation, is subject to mandatory detention, provided that he was released from criminal custody after 10/8/98, the expiration date of the Transition Period Custody Rules. Matter of Kotliar, 24 I&N Dec. 124 (BIA 2007)
    AILA Doc. No. 07032260.
  • BIA on Reinstatement of Prior Orders(35 KB - 3/20/2007)
    The BIA held that an IJ has no authority to reinstate a prior order of deportation or removal and an alien subject to reinstatement of a prior order of deportation or removal has no right to a hearing before an IJ. Matter of W-C-B-, 24 I&N Dec. 118 (BIA 2007)
    AILA Doc. No. 07032011.
  • BIA Finds “Categorical Approach” Not Applicable Where “Commercial Advantage” Is Not Element of Offense (3/15/2007)
    The BIA held that the application of the “categorical approach” to determining whether a criminal offense satisfies a particular ground of removal and whether an offense is committed for “commercial advantage. Matter of Gertsenshteyn, 24 I&N Dec. 111 (BIA 2007)
    AILA Doc. No. 07031560.
  • BIA on Termination of Proceedings for Adjudication of Naturalization Application (3/9/2007)
    The BIA held that because BIA and IJs lack jurisdiction to adjudicate naturalization applications, removal proceedings may only be terminated where DHS presents an affirmative communication on prima facie eligibility for naturalization. Matter of Acosta Hidalgo, 24 I&N Dec. 103 (BIA 2007)
    AILA Doc. No. 07030963.
  • BIA Holds TPS Can Be Asserted in Removal Proceedings (3/5/2007)
    The BIA held that Temporary Protected Status can be asserted in removal proceedings, even if AAU previously denied application. Matter of Barrientos, 24 I&N Dec. 100 (BIA 2007)
    AILA Doc. No. 07030560.
  • BIA Finds Money Laundering in Violation of NY Penal Law is CIMT (2/23/2007)
    The BIA dismissed appeal and reaffirmed decision holding that the offense of money laundering in violation of section 470.10(1) of the New York Penal Law is a crime involving moral turpitude. Matter of Tejwani, 24 I&N Dec. 97 (BIA 2007)
    AILA Doc. No. 07022365.
  • BIA Addresses Failure to Depart Penalty and its Exceptions (2/23/2007)
    The BIA held that it lacked authority to apply “exceptional circumstances” exception to penalty provisions for failure to depart within time period for voluntary departure and defined a circumstance where one did not voluntarily fail to depart. Matter of Zmijewska, 24 I&N Dec. 87 (BIA 2007)
    AILA Doc. No. 07022362.
  • BIA Addresses §237(a)(2)(B)(i) Applicability (2/20/2007)
    The BIA held that the exception to deportability under INA §237(a)(2)(B)(i) does not apply to an alien convicted under a statute that has an element requiring that possession of the marijuana be in a prison or other correctional setting. Matter of Moncada-Servellon, 24 I&N Dec. 62 (BIA 2007)
    AILA Doc. No. 07022063.
  • BIA Holds Affluent Guatemalans Do Not Constitute a Particular Social Group (2/20/2007)
    BIA discusses factors to be considered in determining whether a particular social group exists, and held that affluent Guatemalans do not constitute a particular social group. Matter of A-M-E & J-G-U-, 24 I&N Dec. 69 (BIA 2007)
    AILA Doc. No. 07022062.
  • BIA Addresses Effective Date of Child Status Protection Act (2/15/2007)
    The BIA held that INA §201(f)(1) applies to an individual whose visa petition was approved before the August 6, 2002 effective date of CSPA, but the I-485 was filed after that date - such individual retains his status as a child. Matter of Avila-Perez, 24 I&N Dec. 78 (BIA 2007)
    AILA Doc. No. 07021561.
 
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