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2008

  • BIA Holds IJ Has Duty to Alert Pro Se Applicant to Avenues for Relief(96 KB - 12/2/2008)
    BIA remands, holding that the IJ had a duty to develop the record on the potential hardship that the applicant’s removal would pose to his son, and that the IJ had a duty to alert the applicant to all avenues of relief during removal proceedings, which he failed to do with regard to voluntary departure. Unpublished decision courtesy of Robert Carpenter. AILA Doc. No. 08120260.
    AILA Doc. No. 08120260.
  • AG Establishes Framework to Determine whether Conviction is for Crime Involving Moral Turpitude(78 KB - 11/19/2008)
    The AG sets forth an analytical framework for deciding whether an alien’s conviction is for a CIMT rendering him inadmissible, which undertakes the categorical approach, and if the inquiry remains unresolved, examines the record of conviction and then if necessary, additional evidence. Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008). AILA Doc. No. 08111931.
    AILA Doc. No. 08111931.
  • BIA Finds Filing Window for Asylum Begins Upon Arrival from Most Recent Trip Abroad(26 KB - 11/6/2008)
    BIA concludes that for purposes of calculating the period of time between the alien’s arrival in the U.S. and the date on which an application for asylum was filed, the term “last arrival” should be given its literal meaning, i.e., the alien’s most recent arrival in the United States from a trip abroad. Matter of F-P-R-, 24 I&N Dec. 681 (BIA 2008). AILA Doc. No. 08110661.
    AILA Doc. No. 08110661.
  • BIA Considers Due Diligence to Conclude Respondent Overcame Presumption of Delivery of NTA(41 KB - 11/3/2008)
    BIA finds that the respondent overcame the weaker presumption of delivery of the NTA sent by regular mail under standards set forth in Matter of M-R-A- and that removal proceedings should be reopened. Notes that the respondent’s due diligence in promptly seeking to redress the situation is significant. Matter of C-R-C-, 24 I&N Dec. 677 (BIA 2008). AILA Doc. No. 08110363.
    AILA Doc. No. 08110363.
  • BIA Addresses Overcoming Presumption of Delivery of Notices Sent by Regular Mail(41 KB - 11/3/2008)
    BIA finds that the respondent provided sufficient evidence to overcome the presumption of delivery of a Notice of Hearing under the weaker standard applied when notices are delivered by regular mail. Appeal is sustained and remanded to the IJ for further proceedings. Matter of M-R-A-, 24 I&N Dec. 665 (BIA 2008). AILA Doc. No. 08110361.
    AILA Doc. No. 08110361.
  • BIA Finds Fraud Waiver Applicant’s Qualifying Relative Must be Living to Establish Eligibility(43 KB - 10/24/2008)
    BIA finds that the purpose of a fraud waiver under INA §237(a)(1)(H)(i)(I) is clear from the statutory language and court interpretations - to unite aliens with their living USC or LPR family members. Concludes that because the waiver applicant’s mother is deceased, he lacks the qualifying relative. Matter of Federiso, 24 I&N Dec. 661, (BIA 2008). AILA Doc. No. 08102465.
    AILA Doc. No. 08102465.
  • BIA Addresses Asylum and Resistance to Forced IUDs in China(46 KB - 10/7/2008)
    The BIA held that the insertion of an IUD does not rise to the level of harm necessary to constitute “persecution” absent aggravating circumstances. Matter of M-F-W- & L-G, 24 I&N Dec. 633 (BIA 2008). AILA Doc. No. 08100769.
    AILA Doc. No. 08100769.
  • On Remand BIA Denies Motion to Reopen Sua Sponte Holding Departure Bar Remains in Effect(78 KB - 10/7/2008)
    On remand the BIA held that the departure bar rule remains in effect, thus it lacks jurisdiction to consider the removed alien’s motion to reopen sua sponte. It declined to apply the ninth circuit’s rationale in Lin v. Gonzales and addressed the fourth circuit’s invalidation of 8 CFR § 1003.2(d). Matter of Armendarez-Mendez, 24 I&N Dec. 646 (BIA 2008). AILA Doc. No. 08100766.
    AILA Doc. No. 08100766.
  • Parent’s Period of Residence Cannot be Imputed to Child for Cancellation of Removal(18 KB - 9/30/2008)
    BIA vacates IJ decision and orders removal, finding that the period during which the foreign national resided as an unemancipated minor child with his LPR father cannot be imputed in order to satisfy the 7-year residence requirement for cancellation of removal under INA §240A(a)(2). Matter of Ramirez-Vargas, 24 I&N Dec. 599 (BIA 2008). AILA Doc. No. 08093075.
    AILA Doc. No. 08093075.
  • Attorney General Certifies Matter of R-A- and Lifts Stay(19 KB - 9/30/2008)
    On September 25, 2008, the Attorney General lifted the stay in Matter of R-A-. The Attorney General’s decision remanded the case to the Board to revisit the issues in light of current law. 24 I&N Dec. 629 (A.G. 2008). AILA Doc. No. 08093062.
    AILA Doc. No. 08093062.
  • BIA Concludes False Claim of Citizenship on I-9 Does Not Bar Good Moral Character Finding(20 KB - 9/23/2008)
    BIA reverses IJ’s decision holding that the “catch-all” provision of INA § 101(f) bars a finding of good moral character under INA §240A(b)(1)(B) for an alien that made a false claim of U.S. citizenship on Form I-9. Matter of Guadarrama, 24 I&N Dec. 625 (BIA 2008) (Interim Decision). AILA Doc. No. 08092367.
    AILA Doc. No. 08092367.
  • Attorney General Vacates Denial of Withholding Claim Based on FGM (9/22/2008)
    Attorney General vacates BIA decision denying a Malian woman’s claim for withholding of removal. Remands for reconsideration of questions relating to her eligibility for withholding based on the claim that she was subjected to female genital mutilation. Matter of A-T-, 24 I & N Dec. 617 (AG 2008)(Interim Decision). AILA Doc. No. 08092230.
    AILA Doc. No. 08092230.
  • IJ Grants Asylum to Children of a Particular Family Who Where Physically Abandoned(775 KB - 9/18/2008)
    IJ finds that Honduran children merit a grant of asylum on humanitarian grounds. The social group is defined as members of a particular family who were physically abandoned by their parents. Decision courtesy of David Sperling. AILA Doc. No. 08091869.
    AILA Doc. No. 08091869.
  • BIA Finds Spouse of Cuban LPR Eligible for Relief(156 KB - 9/18/2008)
    Unpublished decision. BIA remands because the immigration judge was under the misapprehension that the foreign national was not eligible for relief because he did not have an approved visa petition and his wife was not a U.S. citizen. Finds that as the spouse of an LPR who adjusted under the Cuban Adjustment Act, he is eligible to adjust. Courtesy of Sofia Zneimer. AILA Doc. No. 08091864.
    AILA Doc. No. 08091864.
  • BIA Addresses Meaning of “to Reside Permanently” Under Former Section 321(a) of the INA(50 KB - 9/15/2008)
    BIA finds respondent did not satisfy former section 321(a) of the Act to obtain derivative citizenship because he did not acquire LPR status before he reached 18 years of age. Matter of Nwozuzu, 24 I&N Dec. 609 (BIA 2008). AILA Doc. No. 08091566.
    AILA Doc. No. 08091566.
  • BIA Finds Lack of Due Process in Address Error Made in Mailing of NTA(44 KB - 9/9/2008)
    BIA notes due process is satisfied if the method of notice is conducted in a manner reasonably calculated to ensure that the notice reaches the alien. Respondent never received the NTA because an error was made in his address. He was ordered removed in absentia. BIA sustains appeal and reopens sua sponte. Courtesy of Christopher Helt. AILA Doc. No. 08090960.
    AILA Doc. No. 08090960.
  • BIA Finds IJ Erred in Denying Request for Continuance Based on Priority Date Retrogression(137 KB - 9/8/2008)
    BIA sustains appeal and grants motion to remand. EB adjustment applicant requested a continuance because his priority date was no longer current at the time of his hearing before the IJ. IJ denied the request and granted a DHS motion to pretermit. BIA reversed. Courtesy of Christopher Helt. AILA Doc. No. 08090867.
    AILA Doc. No. 08090867.
  • BIA Reverses Adverse Credibility Finding for Battered Cancellation of Removal Applicant(1789 KB - 9/8/2008)
    In a non-precedent decision, BIA finds error in the IJ’s adverse credibility determination, which was based solely on the fact that the applicant attempted to enter the U.S. by fraud.
    AILA Doc. No. 08090860.
  • BIA Interim Decision Addresses Release Under INA 236(c)(1)(29 KB - 9/2/2008)
    BIA finds that “release” under INA 236(c)(1) includes release from a non-DHS custodial setting after the expiration of the Transitory Period Custody Rules, and does not support limiting the custodial setting to criminal custody related to the basis for detention under 236(c)(1). Matter of Saysana, 24 I&N Dec. 602 (BIA 2008) (Interim decision). AILA Doc. No. 08090266
    AILA Doc. No. 08090266.
  • Attorney General to Review Right to Effective Counsel(189 KB - 8/13/2008)
    The Attorney General directs the BIA to refer to him for review three cases involving Lozada standards with respect to ineffective assistance to counsel. The AILF Legal Action Center has been invited to submit an amicus brief. AILA Doc. No. 08081361.
    AILA Doc. No. 08081361.
  • IJ Grants Exception for One-Year Filing Deadline for Asylee(535 KB - 8/8/2008)
    IJ found exceptional circumstances existed and granted asylum, despite the applicant’s failure to file within one year. Courtesy of Sun Jin Jung. AILA Doc. No. 08080841.
    AILA Doc. No. 08080841.
  • BIA Finds Applicant Not “Lawfully Resided” for Purposes of 212(h) Waiver(63 KB - 8/1/2008)
    BIA finds alien has not “lawfully resided” in the United States for purposes of qualifying for a 212(h) waiver of the INA, 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 Rotimi, 24 I&N Dec. 567 (BIA 2008). AILA Doc. No. 08080165.
    AILA Doc. No. 08080165.
  • BIA Dismisses Appeal Further Limiting Definition of Particular Social Group(43 KB - 8/1/2008)
    The BIA agreed with the Immigration Judge who found that either Salvadoran youth who refused recruitment into the MS-13 criminal gang or their family members does not constitute a particular social group. Matter of S-E-G-, et al., 24 I&N Dec. 579 (BIA 2008). AILA Doc. No. 08080164.
    AILA Doc. No. 08080164.
  • BIA Approves Non-Profit’s Request for Recognition(46 KB - 7/9/2008)
    BIA approves request for recognition of a non-profit under 8 C.F.R § 1292.2. Finds the organization meets requirements by having sufficient access to legal resources, an arrangement with an admitted attorney who acts as a legal consultant, and by applying for the partial accreditation of a staff member. Matter of EAC, Inc. 24 I & N 556 (BIA 2008). AILA Doc. No. 08070966.
    AILA Doc. No. 08070966.
  • BIA Approves Partial Accreditation of Representative(26 KB - 7/9/2008)
    BIA approves an organization’s application for accreditation of its representative under 8 CFR § 1292.2(d). The representative was approved for partial accreditation to practice solely before DHS. Matter of EAC, Inc., 24 I & N Dec. 563 (BIA 2008). AILA Doc. No. 08070965.
    AILA Doc. No. 08070965.
  • BIA Finds Error in Credibility Standard, Remands Allowing for New Evidence in Asylum Claim(106 KB - 7/9/2008)
    BIA concludes that IJ erred in applying the Real ID Act to a case where respondent filed asylum application prior to the effective date of the Act. Respondent able to amend asylum application and submit new evidence for a claim based on membership in a social group defined by a disability, in this case, deaf and mute children. Decision courtesy of Geoffrey Hoffman. AILA Doc. No. 08070960.
    AILA Doc. No. 08070960.
  • Orlando IJ Grants Asylum to Victim of Domestic Violence(802 KB - 6/20/2008)
    An immigration judge for the Orlando, Florida Immigration Court finds that a victim of domestic violence merits a grant of asylum on humanitarian grounds. The social group is defined as “Honduran women in intimate relationships who are unable to leave the relationship.” Decision courtesy of John Ovink. AILA Doc. No. 08062061.
    AILA Doc. No. 08062061.
  • BIA Finds Fourth Degree Assault Conviction Is Not a “Crime of Child Abuse”(59 KB - 5/22/2008)
    BIA vacates finding that a Washington fourth degree assault conviction is not a “crime of child abuse” under INA §237(a)(2)(E)(i). Concludes that removability on the basis of "a crime of child abuse" is determined by the elements of the offense. Matter of Velasquez-Herrera, 24 I & N Dec. 503 (BIA 2008). AILA Doc. No. 08052269.
    AILA Doc. No. 08052269.
  • Mukasey Overrules BIA Holdings on Refugee Status for Spouse in Forced Abortion/Sterilization Cases (5/21/2008)
    A 5/15/08 decison and order from Attorney General Michael Mukasey in In re Matter of Jianzhong Shi, A95 476 611 (BIA 2006) overrules two precedent, en banc BIA decisions on entitlement to per se refugee status for the spouses of individuals physically subjected to a forced abortion or sterilization procedure. AILA Doc. No. 08052175.
    AILA Doc. No. 08052175.
  • BIA Finds Alternative Proof of Ghanaian Divorce To Be Valid(22 KB - 4/14/2008)
    While a court order remains the preferred method of establishing a divorce for a customary tribal marriage under Ghanaian law, affidavits executed by the heads of household that meet specified evidentiary requirements may be sufficient for immigration purposes. Matter of Francis Kodwo, 24 I&N Dec. 479 (BIA 2008). AILA Doc. No. 08041468.
    AILA Doc. No. 08041468.
  • BIA Discusses Circumstances When Denaturalization Is Appropriate(17 KB - 4/14/2008)
    A denaturalized alien who committed crimes when an LPR and concealed them during the naturalization process is removable on the basis of the crimes, even though the alien was a naturalized citizen at the time of conviction. Costello v. INS, 376 U.S. 120 (1964), distinguished. Matter of Alfonso Gonzalez-Muro, 24 I&N Dec. 472 (BIA 2008).
    AILA Doc. No. 08041467.
  • Citizenship Available to Child of USC Parent Who Acquired Legal Custody After Naturalization(21 KB - 4/14/2008)
    A child who has satisfied the statutory conditions of former section 321(a) of the INA, before the age of 18 years has acquired United States citizenship, regardless of whether the naturalized parent acquired legal custody of the child before or after the naturalization. Matter of BAIRES-Larios, 24 I&N Dec. 467 (BIA 2008). AILA Doc. No. 08041465.
    AILA Doc. No. 08041465.
  • Conspiracy to Distribute Marijuana Qualifies as an Aggravated Felony(29 KB - 4/14/2008)
    Absent controlling precedent to the contrary, a State law misdemeanor offense of conspiracy to distribute marijuana qualifies as an “aggravated felony” where its elements correspond to the elements of the Federal felony offense of conspiracy to distribute an indeterminate quantity of marijuana. Matter of Lamin Aruna, 24 I&N Dec. 452 (BIA 2008). AILA Doc. No. 08041463.
    AILA Doc. No. 08041463.
  • BIA Finds Imposition of Costs and Surcharges Constitutes a “Conviction”(23 KB - 3/10/2008)
    The imposition of costs and surcharges in the criminal sentencing context constitutes a form of “punishment” or “penalty” for purposes of establishing that an alien has suffered a “conviction” within the meaning of INA section 101(a)(48)(A). Matter of Cabrera, 24 I&N Dec. 459 (BIA 2008). AILA Doc. No. 08031074.
    AILA Doc. No. 08031074.
  • BIA Finds Mother and Daughter Subjected to FGM Eligible for Asylum Based on Humanitarian Grounds(16 KB - 3/10/2008)
    A mother and daughter from Somalia who proved past persecution in the form of female genital mutilation are eligible for a grant of asylum based on humanitarian grounds regardless of whether they can establish a well-founded fear of future persecution. Matter of S-A-K- and H-A-H-, 24 I&N Dec. 464 (BIA 2008). AILA Doc. No. 08031073.
    AILA Doc. No. 08031073.
  • BIA Discusses a “Theft Offense” Within the Definition of Aggravated Felony in INA Section 101(a)(43)(G)(26 KB - 3/10/2008)
    Respondent’s welfare fraud offense is not a “theft offense” within the INA’s definition of an aggravated felony. Matter of Garcia-Madruga, 24 I&N Dec. 436 (BIA 2008). AILA Doc. No. 08031072.
    AILA Doc. No. 08031072.
  • BIA Discusses Meaning of “Child” in Context of Adoption of Siblings(20 KB - 3/10/2008)
    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” under INA section 101(b)(1)(E), even if the child’s adoption preceded that of the younger sibling. Matter of Anifowoshe, 24 I&N Dec. 442 (BIA 2008). AILA Doc. No. 08031068.
    AILA Doc. No. 08031068.
  • BIA Gives Guidance to IJs on Creation and Preservation of Complete Record(14 KB - 3/10/2008)
    Immigration Judges must take particular care to insure that a complete record is preserved; an attachment to an Immigration Judge’s oral decision should be individualized, and it should be appended to the written memorandum summarizing the oral decision, which should reflect that there is an attachment. Matter of Kelly, 24 I&N Dec. 446 (BIA 2008). AILA Doc. No. 08031067.
    AILA Doc. No. 08031067.
  • IJ’s Decision Must Contain Explicit Order of Removal When Withholding Granted Without Asylum(19 KB - 1/11/2008)
    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 I-S- & C-S-, 24 I&N Dec. 432 (BIA 2008). AILA Doc. No. 08011132.
    AILA Doc. No. 08011132.
  • Certain Exceptions under 212(h) do not Apply Where Enhancement Factors Increased the Maximum Penalty of Offense(31 KB - 1/3/2008)
    The exception under section 212(h) for an alien convicted of a single offense of drug possession does not apply to an alien where an enhancement factor increased maximum penalty of the underlying offense and had been proven beyond a reasonable doubt to a jury. Matter of Martinez-Zapata, 24 I&N Dec. 424 (BIA 2007). AILA Doc. No. 08010370.
    AILA Doc. No. 08010370.
  • Simple Possession of Marijuana Not “Aggravated Felony” in Specific Situation(32 KB - 1/3/2008)
    Drug offense not aggravated felony based on recidivist possession despite offense committed after prior conviction for drug offense finalized. Conviction for that offense did not arise from State proceeding where respondent’s status as a recidivist drug offender was admitted or determined by a judge/jury. Matter of Thomas, 24 I&N 416 (BIA 2007). AILA Doc. No. 08010367.
    AILA Doc. No. 08010367.