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2013

  • BIA Holds E-2 Spouses Not Required to Obtain EAD (12/30/2013)
    Unpublished BIA decision reverses denial of adjustment application and holds respondent was not required to obtain an employment authorization document as the spouse of an E-2 treaty investor. Special thanks to IRAC. (Matter of Lee, 11/5/13)
    AILA Doc. No. 13123041.
  • OCAHO Reduces I-9 Fines for Small Warehouse and Storage Business(487 KB - 12/24/2013)
    Based on the small size of the company, no previous violations, no unauthorized workers, and no lack of good faith, the penalty was adjusted to an amount closer to the midrange of permissible penalties. (U.S. v. Metropolitan Warehouse, Inc., 12/19/13)
    AILA Doc. No. 13122445.
  • BIA Finds Criminal Indictment Is Not Clear and Convincing Evidence of Date of Offense (12/24/2013)
    Unpublished BIA decision finds statement in criminal indictment saying offense occurred “on or about” a particular date does not constitute clear and convincing evidence that the offense actually occurred on that date. Special thanks to IRAC. (Matter of Clase, 10/31/13)
    AILA Doc. No. 13122442.
  • BIA Finds Respondent Failed to Appear Due to Alleged Clerical Error (12/24/2013)
    Unpublished BIA decision finds alleged clerical error by immigration court regarding date of hearing constitutes exceptional circumstances justifying failure to appear. Special thanks to IRAC. (Matter of Mendez, 10/30/13)
    AILA Doc. No. 13122441.
  • BIA Remands for Consideration of 212(c) Relief(705 KB - 12/23/2013)
    Unpublished BIA decision where the Board found that the Supreme Court precedent in Vartelas v. Holder allowed for the IJ to consider 212(c) relief since the respondent’s sole conviction pre-dated AEDPA and IIRIRA. Courtesy of Maude Laroche-St. Fleur.
    AILA Doc. No. 13122352.
  • BIA Finds Respondent Eligible for Asylum Based on FGM(547 KB - 12/19/2013)
    Unpublished BIA decision finding respondent eligible for asylum, finding compelling reasons for being unwilling to return to Senegal based on female genital mutilation (FGM) irrespective of whether respondent has a well-founded fear of future persecution. Courtesy of Matthew Benson.
    AILA Doc. No. 13121955.
  • BIA Grants Construed Motion to Reopen for Assyrian Christian(544 KB - 12/19/2013)
    Unpublished BIA decision remanding after finding that the respondent’s motion, stating that conditions for Assyrian Christians have gotten worse since U.S. troops departed Iraq in December 2011, demonstrated prima facie eligibility for asylum and withholding. Courtesy of Robert DeKelaita.
    AILA Doc. No. 13121953.
  • BIA Remands After Finding Methamphetamine Conviction Not An Aggravated Felony(621 KB - 12/19/2013)
    Unpublished BIA decision where the Board remanded after disagreeing with the IJ’s holding that the DHS had established that the respondent’s 2013 Oregon state conviction for delivery of methamphetamines constituted a conviction for an aggravated felony. Courtesy of Robert Jaeggli.
    AILA Doc. No. 13121948.
  • BIA Remands for IJ to Consider Impact of New Medical Diagnosis of Child(565 KB - 11/7/2013)
    Unpublished BIA decision remanding cancellation denial, asking IJ to consider new Attention-Deficit-Hyperactivity Disorder diagnosis of respondent’s son as well as wife’s health and income in assessing hardship to children, who are qualifying relatives. Courtesy of Diana M. Bailey.
    AILA Doc. No. 13110799.
  • BIA Advises IJs to Assist Pro Se Respondents (12/18/2013)
    Unpublished BIA decision remands record to allow pro se respondent to seek relief, says IJs should “aid in the development in the record, particularly where an alien appears pro se and may be unschooled in the removal process." Special thanks to IRAC. (Matter of Mutukwa, 10/25/13)
    AILA Doc. No. 13121848.
  • BIA Administratively Closes Proceedings of Father of DACA Grantee (12/18/2013)
    Unpublished BIA decision grants joint motion to reopen and administratively close proceedings against respondent who entered country in 2004 and is father of an 8-year-old U.S. citizen child and a 20-year-old DACA grantee. Special thanks to IRAC. (Matter of Garcia, 10/25/13)
    AILA Doc. No. 13121847.
  • BIA Remands for Further Consideration of Request for Continuance (12/18/2013)
    Unpublished BIA decision remands for further consideration of request for continuance in light of filing of appeal of USCIS denial of visa petition and birth of a daughter to the respondent and her U.S. citizen husband. Special thanks to IRAC. (Matter of Dinh, 10/25/13)
    AILA Doc. No. 13121846.
  • BIA Finds IJ Erred in Denying Derivative Asylum Claim(588 KB - 12/16/2013)
    Unpublished BIA decision remanding, finding the IJ erred when concluding the respondent could not claim derivative status through her husband’s approved asylum application because she entered the U.S. as a nonimmigrant prior to her husband. Courtesy of Rachel Wilson.
    AILA Doc. No. 13121646.
  • BIA Advises IJ to Consider Silitonga and Arrabally & Yerrabelly on Remand (12/13/2013)
    Unpublished BIA decision remands record and advises IJ to consider Matter of Silitonga and Matter of Arrabally & Yerrabelly in determining removability and eligibility for adjustment of status. Special thanks to IRAC. (Matter of Manjan, 10/23/13)
    AILA Doc. No. 13121345.
  • BIA Reopens Proceedings for Respondent Where I-751 Was Denied for Improper Fee Payment (12/13/2013)
    Unpublished BIA decision reopens proceedings upon finding respondent did not receive notice of hearing at which she was ordered removed in absentia, and her Form I-751 was rejected due to improper fee payment. Special thanks to IRAC. (Matter of Jones, 10/23/13)
    AILA Doc. No. 13121344.
  • BIA Terminates Proceedings Against Respondent Charged with Alien Smuggling (12/13/2013)
    Unpublished BIA decision finds government evidence insufficiently reliable to uphold charge of alien smuggling under INA 237(a)(1)(E) where immigration officers’ testimony was based on unidentified informants. Special thanks to IRAC. (Matter of Guzman, 10/23/13)
    AILA Doc. No. 13121343.
  • OSC Settles Immigration-Related Discrimination Claim with San Francisco Restaurant(726 KB - 12/12/2013)
    OSC settlement with Kim Hoang Coffee and Fast Food after an investigation found that it improperly rejected valid work-authorization documents when re-verifying an individual’s employment authorization and was asking non-U.S. citizens to produce specific documents to establish work authorization.
    AILA Doc. No. 13121247.
  • BIA Remands For IJ To Reconsider in Light of Supreme Court Ruling in Descamps(749 KB - 12/11/2013)
    Unpublished BIA decision remanding so the IJ can consider whether a criminal sexual conduct third degree under Minnesota State Statute 609.344 is an aggravated felony in light of the Supreme Court decision in Descamps v. U.S. Courtesy of Marcus Anton Jarvis.
    AILA Doc. No. 13121153.
  • BIA Terminates Removal Proceedings After Finding Conviction Not Child Abuse(737 KB - 12/11/2013)
    Unpublished BIA decision terminating proceedings after finding that a conviction of contributing to the delinquency of a minor does not qualify as an aggravated felony and that the conduct underlying the conviction may not be used to reach a contrary conclusion. Courtesy of Magdalena Metelska.
    AILA Doc. No. 13121152.
  • BIA Terminates Removal Proceedings After Finding Domestic Abuse Conviction Not Divisible(1369 KB - 12/11/2013)
    Unpublished BIA decision terminating proceedings after finding that a conviction of domestic abuse, a misdemeanor under Oklahoma statute, is not divisible as it only references one crime and therefore the modified categorical approach used by the IJ was inapplicable. Courtesy of Kelli Stump.
    AILA Doc. No. 13121147.
  • BIA Remands Cancellation Application for Additional Consideration of Certificate of Baptism(813 KB - 12/10/2013)
    Unpublished BIA decision remanding a cancellation of removal application so additional consideration could be given to the respondent’s Certification of Baptism and so an evidentiary hearing to provide witness testimony in support of continuous presence claim could be held. Courtesy of Frances Cruz.
    AILA Doc. No. 13121060.
  • BIA Finds Respondent Was Not Advised of Right to Counsel (12/6/2013)
    Unpublished BIA decision remands for further proceedings where pro se respondent was not advised of right to counsel at no expense to the government after accredited representative failed to appear at his hearing. Special thanks to IRAC. (Matter of Moreno-Duarte, 10/21/13)
    AILA Doc. No. 13120607.
  • BIA Finds IJ Should Have Inquired Into Ability to Obtain Passport (12/6/2013)
    Unpublished BIA decisions remands for further consideration of voluntary departure where IJ did not inquire into respondent’s ability to obtain a passport or address the possibility of a continuance. Special thanks to IRAC. (Matter of Salazar-Herrera, 10/21/13)
    AILA Doc. No. 13120606.
  • BIA Finds Record of Conviction Does Not Support Allegations in NTA (12/6/2013)
    Unpublished BIA decision remands for further proceedings where convictions records do not support allegation in Notice to Appeal (NTA) that respondent was convicted in violation of Section 11359 of the Cal. Health and Safety Code. Special thanks to IRAC. (Matter of Diaz Montes, 10/21/13)
    AILA Doc. No. 13120605.
  • BIA Orders Further Consideration of Request for Voluntary Departure (12/6/2013)
    Unpublished BIA decision remands for further consideration of voluntary departure for respondent who is beneficiary of approved visa petition who has not illegally entered in past five years. Special thanks to IRAC. (Matter of Araujo, 10/18/13)
    AILA Doc. No. 13120604.
  • BIA Remands After IJ Failed to Determine if Applicant Experienced Past Torture(739 KB - 12/5/2013)
    Unpublished BIA decision remanding denial of application for protection under the Convention Against Torture because the IJ did not render a determination on whether the applicant established that he was tortured by a Salvadoran government official. Special thanks to Edgardo Quintanilla.
    AILA Doc. No. 13120544.
  • BIA Remands Moldova Asylum Applicant for Entry of New Decision(1608 KB - 12/3/2013)
    Unpublished BIA decision remanding record as IJ didn’t adequately addressed respondent’s corroborative evidence in his conclusion that respondent did not establish past persecution and that the new entry must be based on applicable 9th Circuit and BIA precedents. Special thanks to Michael Alexei.
    AILA Doc. No. 13120342.
  • IJ Finds Respondent Did Not Abandon LPR Status After Parents’ Divorce(3291 KB - 11/22/2013)
    IJ found that even though the parents abandoned their own lawful permanent resident statuses, and the respondent was out of the U.S. for more than 180 days as a result of her parents’ divorce, the intent was for the respondent to retain her own status. Courtesy of Eric Schultz.
    AILA Doc. No. 13112247.
  • BIA Finds IJ Failed to Weigh Equities in Denying Voluntary Departure (11/21/2013)
    Unpublished BIA decision remands for entry of new decision where IJ did not explicitly balance positive and negative equities in denying voluntary departure. Special thanks to IRAC. (Matter of Alcantar, 10/17/13)
    AILA Doc. No. 13112135.
  • BIA Finds Marijuana Conviction Is Not Categorically an Aggravated Felony(4803 KB - 11/21/2013)
    Unpublished decision BIA applies Moncrieffe and concludes that the respondent is not removable as an aggravated felon for his conviction of possessing marijuana with intent to distribute and remains eligible to be considered for cancellation. Courtesy of Joshua Sleper.
    AILA Doc. No. 13112133.
  • BIA Finds IJ Failed to Advise Respondent of Eligibility for Voluntary Departure (11/21/2013)
    Unpublished BIA decision remands for further proceedings where IJ did not advise unrepresented respondent of potential eligibility for voluntary departure. Special thanks to IRAC. (Matter of Rangel, 10/17/13)
    AILA Doc. No. 13112131.
  • BIA Remands for Additional Opportunity to Accept Voluntary Departure (11/21/2013)
    Unpublished BIA decision remands to provide an unrepresented respondent another opportunity to seek voluntary departure who may have misunderstood legal significance of order of removal. Special thanks to IRAC. (Matter of Diaz, 10/7/13)
    AILA Doc. No. 13112130.
  • DHS Withdraws Appeal of Decision Finding Bulk Cash Smuggling Not a CIMT (11/21/2013)
    Unpublished BIA decisions notes withdrawal of DHS appeal of decision terminating proceedings on grounds that federal bulk cash smuggling under 31 U.S.C. 5332 is not a CIMT. Special thanks to IRAC. (Matter of Valenzuela, 10/15/13)
    AILA Doc. No. 13112159.
  • BIA Admininistratively Closes Proceedings to Allow For Filing of I-601A(494 KB - 11/21/2013)
    Unpublished BIA decision administratively closing removal proceedings to give the respondent, who is also the beneficiary of an approved I-130 petition by his U.S. citizen spouse, the opportunity to file a stateside provisional waiver (Form I-601A). Courtesy of Christopher Helt.
    AILA Doc. No. 13112157.
  • BIA Terminates Proceedings After Finding Conviction Not an Aggravated Felony(1058 KB - 11/21/2013)
    Unpublished BIA decision terminating proceedings after finding that a conviction of deadly conduct pursuant to Tex. Penal Code Ann. 22.05(a) does not require “intentional use of violent force” and thus is not an aggravated felony. Courtesy of Jonathan Kessler.
    AILA Doc. No. 13112156.
  • BIA Grants Asylum to Applicant from Republic of Congo(561 KB - 11/20/2013)
    Unpublished BIA decision sustaining appeal of asylum denial, concluding that the IJ’s adverse credibility finding was clearly erroneous and that the harm the applicant suffered on account of her political opinion constituted past persecution in the Republic of the Congo. Courtesy of Toni Maschler.
    AILA Doc. No. 13112043.
  • BIA Remands Asylum Denial for Bipolar Individual from Ghana(643 KB - 11/19/2013)
    Unpublished BIA decision remanding, finding that individuals from Ghana who suffer from mental illness and are indigent and lack family support constitutes a cognizable particular social group and that the IJ erred in evaluating well-founded fear of persecution. Courtesy of Geoffrey Hoffman.
    AILA Doc. No. 13111951.
  • Immigration Judge Terminates Removal Proceedings in Abandonment Case(1072 KB - 11/19/2013)
    IJ terminates removal proceedings without prejudice after finding respondent made every effort to return to the U.S. Respondent was a returning LPR from Antigua and Barbuda when DHS served her with an NTA after she had been out of the U.S. for over four years. Courtesy of Patricia Cooper.
    AILA Doc. No. 13111948.
  • BIA Remands Asylum Case For Cameroon Native(1468 KB - 11/19/2013)
    Unpublished BIA decision remanding case for additional fact-finding and new decision after finding submitted evidence may be sufficient to rehabilitate the respondent’s credibility or established independently past persecution or a well-founded fear of persecution. Courtesy of David Cleveland.
    AILA Doc. No. 13111946.
  • BIA Finds Maryland Fourth Degree Sexual Offense Not Crime of Violence (11/14/2013)
    Unpublished BIA decision holds Maryland fourth degree sexual offense does not require use of force and statute is not subject to modified categorical approach under Descamps v. United States. Special thanks to IRAC. (Matter of Tally, 10/8/13)
    AILA Doc. No. 13111456.
  • BIA Finds IJs Failed to Sufficiently Examine Possible Asylum Claim (11/14/2013)
    Unpublished BIA decision remands for further consideration of potential asylum claim where respondent asserted fear of gangs in El Salvador. Special thanks to IRAC. (Matter of Monge, 10/3/13)
    AILA Doc. No. 13111454.
  • BIA Finds Grant of SIJS Petition Not an “Admission” (11/14/2013)
    Unpublished BIA decision denies motion to reopen and finds grant of a Special Immigrant Juvenile Status (SIJS) petition does not constitute an “admission” requiring termination of removal proceedings. Special thanks to IRAC. (Matter of Perez, 10/3/13)
    AILA Doc. No. 13111453.
  • BIA Finds Advance Parole Does Not Restart Clock for Unauthorized Employment (11/13/2013)
    Unpublished BIA decision upholds denial of adjustment due to unauthorized employment and finds 180-day clock did not restart after respondent re-entered on advance parole. Special thanks to IRAC. (Matter of Bojko, 9/30/13)
    AILA Doc. No. 13111343.
  • BIA Rescinds In Absentia Order Where Respondent Did Not Receive Notice (11/13/2013)
    Unpublished BIA decision rescinds in absentia removal order where NTA and hearing notice were sent to outdated address obtained from INS files from 1993 and were returned as undeliverable. Special thanks to IRAC. (Matter of Holtzman, 9/30/13)
    AILA Doc. No. 13111342.
  • OCAHO Reduces Fines for Small Restaurant(651 KB - 11/7/2013)
    Employer argues that good faith is shown by demonstrating “an honest intention to exercise reasonable care and diligence to ascertain what IRCA requires and to act in accordance with it.” OCAHO reduces penalties from $21,505 to $10,350. (U.S. v. Red Bowl of Cary, LLC., 10/18/13)
    AILA Doc. No. 13110750.
  • OCAHO Reduces Penalties From Close to Maximum to Midrange of Penalties(733 KB - 11/7/2013)
    OCAHO reduces penalties from ICE’s requested penalty of $981.75 for each violation, to $400 for violations for failure to ensure completion of Section 1 on Form I-9 and $600 for violations for failure to prepare or present Forms I-9. (U.S. v. Kobe Sakura Japanese, Inc., 10/18/13)
    AILA Doc. No. 13110745.
  • OCAHO Reduces Fines for Small Family Business to Midrange of Penalties(734 KB - 11/7/2013)
    A small family-owned restaurant argued that income has been down for the past three years due to the high unemployment level in the area. OCAHO reduced fines stating that the penalties are not intended to force employers out of business. (U.S. v. Kobe Sapporo Japanese, Inc., 10/18/13)
    AILA Doc. No. 13110742.
  • BIA Holds Illegible Signature on NTA Not Valid Basis for Termination of Proceedings (11/5/2013)
    Unpublished BIA decision sustains DHS appeal and finds IJ erred in terminating proceedings because signature on Notice to Appear (NTA) was not legible. Special thanks to IRAC. (Matter of Lopez, 9/27/13)
    AILA Doc. No. 13110551.
  • BIA Upholds Removal of Longtime EWI with Diabetes Requiring Medical Treatment (11/5/2013)
    Unpublished BIA decision upholds removal order against respondent who entered without inspection in 2000 and requires medical treatment for diabetes. Special thanks to IRAC. (Matter of Flores, 9/27/13)
    AILA Doc. No. 13110550.
  • BIA Upholds Adverse Credibility Finding Against Respondent Claiming Inspection and Admission (11/5/2013)
    Unpublished BIA decision upholds adverse credibility finding against respondent who lacked a passport stamp but claimed to have entered the country by vehicle through a port of entry. Special thanks to IRAC. (Matter of Alves Da Silva, 9/27/13)
    AILA Doc. No. 13110549.
  • BIA Remands for Reconsideration of Precedential Decision Finding Stalking to be Crime of Violence (11/5/2013)
    Unpublished BIA decision remands to the IJ for further consideration after a remand from the Fourth Circuit for further consideration on whether stalking under Cal. Penal Code 646.9(a) is categorically an aggravated felony crime of violence. Special thanks to IRAC. (Matter of Singh, 9/27/13)
    AILA Doc. No. 13110545.
  • OCAHO Dismisses LPR Discrimination Claim(832 KB - 11/4/2013)
    OCAHO dismissed complaint because the individual lacked standing to maintain the claim for citizenship status discrimination because he was an LPR and events must have occurred within the 180-day period preceding the OSC charge filing. (Torres v. Pacific Continental Textiles, Inc., 10/15/13)
    AILA Doc. No. 13110457.
  • BIA Declines to Follow Third Circuit on Derivative Citizenship Under §321(a)(471 KB - 11/1/2013)
    The Board held that a child who has satisfied the conditions of former INA §321(a) before the age of 18 has acquired U.S. citizenship, regardless of whether the naturalized parent acquired legal custody before or after the naturalization. Matter of Douglas, 26 I&N Dec. 197 (BIA 2013)
    AILA Doc. No. 13101759.
  • OCAHO Final Decision on Allegations of Retaliation for Filing OSC Charge(1326 KB - 10/29/2013)
    OCAHO final decision and order arising from a complaint from a U.S. citizen alleging retaliation because complainant previously filed a discrimination charge with OSC. OCAHO granted complainant’s motion for summary decision. (John A. Breda v. Kindred Braintree Hospital, LLC, 10/11/13)
    AILA Doc. No. 13102945.
  • BIA Remands After Sentence Reduction Voids Aggravated Felony Finding (10/29/2013)
    Unpublished BIA decision remands after respondent’s sentence for receiving stolen property reduced from 12 to 6 months, making him no longer removable as an aggravated felon and eligible for certain forms of relief. Special thanks to IRAC. (Matter of Ahlijah, 9/26/13)
    AILA Doc. No. 13102944.
  • BIA Remands for Additional Fact-Findings Regarding In Absentia Order (10/29/2013)
    Unpublished BIA decision where the Board remands for more fact-finding and new decision addressing contention that respondent appeared in court on same day she received in absentia removal order. Special thanks to IRAC. (Matter of Salcido-Rocha, 9/26/13)
    AILA Doc. No. 13102943.
  • BIA Remands for Consideration of Continuance Request for Pending U Visa Application (10/29/2013)
    Unpublished BIA decision where the Board remanded for further consideration of a request for continuance while USCIS considers U visa application after a law enforcement agency issues certification for respondent’s sister. Special thanks to IRAC. (Matter of Ceja-Ruiz, 9/26/13)
    AILA Doc. No. 13102942.
  • OSC Settles with Arapahoe, Colorado’s Sheriff’s Office to Resolve Immigration-Related Unfair Employment Practices(1460 KB - 10/28/2013)
    OSC agreement with the Arapahoe County, Colorado Office of the Sheriff to resolve allegations that the Office of the Sheriff violated the anti-discrimination provision of the INA by improperly restricting law enforcement positions to U.S. citizens.
    AILA Doc. No. 13102846.
  • BIA Holds Ammunition Possession by Felon is Aggravated Felony(475 KB - 10/25/2013)
    The Board held that unlawful possession of ammunition by a convicted felon under 18 USC §922(g) is an aggravated felony under INA §101(a)(43)(E)(ii). Matter of Oppedisano, 26 I&N Dec. 202 (BIA 2013)
    AILA Doc. No. 13102559.
  • BIA Remands for Further Consideration of Bond Request (10/24/2013)
    Unpublished BIA decision sustaining the appeal and finding IJ failed to properly balance risk factors of flight and remanding for further consideration of respondent’s eligibility for bond under Casas-Castrillon v. DHS. Special thanks to IRAC. (Matter of Hubbard, 10/8/13)
    AILA Doc. No. 13102443.
  • BIA Remands CAT Claim Where IJ Ignored Evidence (10/24/2013)
    Unpublished BIA decision remands for further consideration in the abundance of caution the deferral of removal where IJ failed to consider evidence regarding prison conditions in Thailand and the basis for the denial was unclear. Special thanks to IRAC. (Matter of V-V-, 10/4/13)
    AILA Doc. No. 13102441.
  • BIA Finds Delaware Second Degree Assault Not Crime of Violence (10/23/2013)
    Unpublished BIA decision holds second degree assault in Delaware is not an aggravated felony crime of violence because offense neither requires use of force nor involves substantial risk that perpetrators will intentionally use force. Special thanks to IRAC. (Matter of Turou, 10/4/13)
    AILA Doc. No. 13102345.
  • BIA Remands to Give Respondent Explicit Opportunity to File Asylum Application (10/22/2013)
    Unpublished BIA decision remanding to give the respondent an explicit opportunity to file an asylum application where the IJ made no further inquiry after the respondent stated he was "a little bit afraid" of returning to El Salvador. Special thanks to IRAC. (Matter of Castro Rosa, 9/25/13)
    AILA Doc. No. 13102254.
  • BIA Reverses Denial of Motion to Reopen Due to Hurricane Sandy (10/22/2013)
    Unpublished BIA decision reversing the denial of a motion to reopen an order of removal issued in absentia because the respondent was unable to travel from New York to Texas due to exceptional circumstances (i.e. Hurricane Sandy). Special thanks to IRAC. (Matter of Perez-Cortez, 9/25/13)
    AILA Doc. No. 13102253.
  • BIA Reverses Denial of Motion to Reopen Due to Ineffective Assistance of Counsel (10/22/2013)
    Unpublished BIA decision granting respondent’s motion to reopen an order of removal issued in absentia, vacating prior decisions, and remanding the record, due to a claim that his prior attorney provided ineffective assistance of counsel. Special thanks to IRAC. (Matter of Picado, 9/25/13)
    AILA Doc. No. 13102252.
  • BIA Remands for Further Consideration Based on Respondent’s Sentence Reduction (10/22/2013)
    Unpublished BIA decision granting the motion to remand based on respondent’s sentence reduction from five years to three days’ confinement for each offense that was previously found to qualify as an aggravated felony crime of violence. Special thanks to IRAC. (Matter of Ortega, 9/23/13)
    AILA Doc. No. 13102241.
  • BIA Says Respondent May Renew Request for Administrative Closure on Remand(552 KB - 10/21/2013)
    Unpublished BIA decision finding that during the pendency of the appeal, I-601A provisional waiver regulations were finalized and include a provision providing for administrative closure, so respondent could renew his request for such relief upon remand. Courtesy of Claire Gallagher.
    AILA Doc. No. 13102199.
  • BIA Terminates Removal Proceedings Since Intervening Case Law Affected Removability (10/21/2013)
    Unpublished BIA decision terminating proceedings since intervening Supreme Court and Fifth Circuit case law affected his removability as charged and made his DUI conviction no longer an aggravated felony crime of violence. Special thanks to IRAC. (Matter of Parada-Villegas, 9/23/13)
    AILA Doc. No. 13102150.
  • BIA Terminates Proceedings Because Conviction Not a Categorical CIMT (10/17/2013)
    Unpublished BIA decision terminating proceedings upon finding that resisting arrest under Cal. Penal Code 69 is not a categorical crime involving moral turpitude and that the statute is not divisible under Descamps v. U.S. Special thanks to IRAC. (Matter of Hernandez-Garcia, 9/20/13)
    AILA Doc. No. 13101761.
  • BIA Remands For Reexamination of Removability In Light of Descamps Holding (10/17/2013)
    Unpublished BIA decision remanding for reconsideration of whether Maryland Code Ann. Crim. Law 3-203 is a crime of violence and whether the statute is not divisible under the intervening decisions in Descamps v. U.S. Special thanks to IRAC. (Matter of Murray, 9/20/13)
    AILA Doc. No. 13101760.
  • BIA Terminates Proceedings Due to Ineffective Assistance of Counsel in Criminal Proceedings (10/16/2013)
    Unpublished BIA decision where the Board terminated proceedings following a stipulation from both parties that the respondent was no longer removable because his criminal conviction was vacated based on ineffective assistance of counsel. Special thanks to IRAC. (Matter of Iglesias, 9/18/13)
    AILA Doc. No. 13101647.
  • BIA Upholds Denial for Co-Respondent With No Independent Relief (10/16/2013)
    Unpublished BIA decision grants a joint motion to administratively close proceedings for one respondent with a pending visa petition, but denied the appeal for the co-respondent, who had no independent relief. Special thanks to IRAC. (Matter of Medrano-Arias, 9/17/13)
    AILA Doc. No. 13101645.
  • BIA Remands After IJ Only Considered Unfavorable Factors When Exercising Voluntary Departure Discretion (10/16/2013)
    Unpublished BIA decision remanding the record because the Immigration Judge denied voluntary departure solely on an apparent conviction for possession of marijuana and did not consider any of the respondent's favorable equities. Special thanks to IRAC. (Matter of Castorena-Alonso, 9/17/13)
    AILA Doc. No. 13101663.
  • BIA Terminates Removal Proceedings After Egregious ICE Actions (10/16/2013)
    Unpublished BIA decision dismissing DHS’s appeal, finding that the respondent’s detention, arrest, and interrogation were sufficiently egregious to warrant the IJ’s grant of his motion to suppress and to terminate removal proceedings. Special thanks to IRAC. (Matter of Ixpec-Chitay, 9/16/13)
    AILA Doc. No. 13101640.
  • BIA Reopens Proceedings Finding Respondent’s Confusion of Court Dates Rises to Exceptional Circumstances (10/15/2013)
    Unpublished BIA decision the Board reopened proceedings upon finding the respondent’s confusion regarding the dates of his criminal and removal hearings constituted “exceptional circumstances” justifying his failure to appear. Special thanks to IRAC. (Matter of Castellanos, 9/16/13)
    AILA Doc. No. 13101522.
  • BIA Upheld Denial of AOS Due To False Claims on I-9 Form (10/15/2013)
    Unpublished BIA decision upholding denial of the respondent’s adjustment application because he signed an I-9 claiming to be a U.S. citizen or national and presented no evidence to support his claim that the I-9 was completed under duress. Special thanks to IRAC. (Matter of Dakura, 9/13/13)
    AILA Doc. No. 13101521.
  • BIA Upholds DHS Motion to Terminate and Dismisses Respondent’s Appeal (10/15/2013)
    Unpublished BIA decision where the Board upheld a grant of a DHS motion to terminate proceedings to reinstate a prior removal order against the respondent, rejecting his arguments that the underlying order should be set aside. Special thanks to IRAC. (Matter of Aguilar-Perez, 9/13/13)
    AILA Doc. No. 13101520.
  • BIA Remands Due to Claims of Exception Circumstances and Ineffective Assistance of Counsel (10/15/2013)
    Unpublished BIA decision remanding for consideration of whether the filing deadline for the respondent’s untimely motion to reopen should be equitably tolled in light of the intervening decision in Avila-Santoya v. U.S. Att'y Gen. Special thanks to IRAC. (Matter of Reece, 9/11/13)
    AILA Doc. No. 13101543.
  • IJ Grants Respondents’ Applications for Cancellation of Removal(13138 KB - 10/15/2013)
    The court dismisses the false claims to citizenship charges against the husband and wife, and due to their continuous and physical presence in the U.S., good moral character, and three U.S. citizen children, grants their applications for cancellation of removal. Courtesy of Sandra Grossman.
    AILA Doc. No. 13101542.
  • BIA Reopens Proceedings Due to DHS Mailing NTA to Improper Address (10/11/2013)
    Unpublished BIA decision vacates an order of removal issued in absentia because respondent was not given notice of the hearing because the NTA was sent to prior address listed on an adjustment application filed years earlier. Special thanks to IRAC. (Matter of Vazquez Ferrel, 9/9/13)
    AILA Doc. No. 13101162.
  • BIA Reopens Proceedings After Finding Respondent’s Claim Plausible For Not Receiving Notice (10/10/2013)
    Unpublished BIA decision reopening proceedings, finding that the respondent’s diligence to attend prior hearings makes his claim that he did not receive notice of this hearing, and thus causing him to miss the hearing, plausible. Special thanks to IRAC. (Matter of Boasiako, 9/9/13)
    AILA Doc. No. 13101003.
  • BIA Rescinds Removal Order After Notice Sent to Counsel But No Form EOIR-28 Was on Record (10/10/2013)
    Unpublished BIA decision where the Board rescinded a removal order issued in absentia by finding the respondent was not properly notified of the removal hearing since the notice was mailed to counsel but there was not Form EOIR-28 on record. Special thanks to IRAC. (Matter of Kyalo, 9/6/13)
    AILA Doc. No. 13101060.
  • BIA Remands After Record Is Unclear If Respondent Knowingly Waived Right to Appeal (10/9/2013)
    Unpublished BIA decision remanding the case because the respondent was never asked to plead to his NTA and it is unclear from the record whether the respondent’s waiver of the right to appeal was made knowingly and intelligently. Special thanks to IRAC. (Matter of Lopez-Vasquez, 9/6/13)
    AILA Doc. No. 13100952.
  • BIA Remands After IJ Issued Form Order Adopting DHS Opposition Without Further Analysis (10/9/2013)
    Unpublished BIA decision remanding the record for further consideration of the respondent's motion to reopen because IJ issued a form order stating, “Court adopts the DHS opposition as its own findings of fact and conclusions of law.” Special thanks to IRAC. (Matter of Martinez, 9/5/13)
    AILA Doc. No. 13100950.
  • BIA Upholds Termination, Finding Conviction Not an Aggravated Felony (10/9/2013)
    Unpublished BIA decision dismisses DHS appeal and upholds termination because conviction for selling contraband cigarettes was not an aggravated felony or a CIMT because fraud or deceit were not necessary elements of the offense. Special thanks to IRAC. (Matter of Choudhry, 9/4/13)
    AILA Doc. No. 13100948.
  • BIA Remands Due to Concerns After Finding IJ Proceedings Inadequate (10/9/2013)
    Unpublished BIA decision remanding the case after expressing concern with how the immigration judge conducted the hearing and finding he failed to make clear factual findings about the respondent’s voluntary departure eligibility. Special thanks to IRAC. (Matter of Juarez, 8/30/13)
    AILA Doc. No. 13100944.
  • BIA Reverses IJ Decision and Administratively Closes Proceedings (10/8/2013)
    Unpublished BIA decision where the Board granted a DHS motion to use prosecutorial discretion to administratively close proceedings for a respondent with a LPR mother and U.S. citizen children. Special thanks to IRAC. (Matter of Rondin-Nieves, 8/30/13)
    AILA Doc. No. 13100847.
  • BIA Grants DHS Appeal After IJ Failed to List Factors Used for Determining Admin Closure (10/7/2013)
    Unpublished BIA decision granting interlocutory DHS appeal challenging administrative closure against a detained respondent because the IJ failed to discuss the factors listed in Matter of Avetisyan and his custody status. Special thanks to IRAC. (Matter of Cisneros, 8/30/13)
    AILA Doc. No. 13100743.
  • BIA Remands After IJ Denied Derivative Citizenship Claim Without Sufficient Fact Finding (10/7/2013)
    Unpublished BIA decision remanding the record for issuance of a new decision addressing all evidence relevant to the respondent’s claim of derivative citizenship, including a delayed birth certificate listing a U.S. citizen as the father. Special thanks to IRAC. (Matter of Gomez, 8/30/13)
    AILA Doc. No. 13100741.
  • BIA Remands After IJ Fails to Advise Respondent of Right to Counsel (10/7/2013)
    Unpublished BIA decision remanding case after finding IJ failed to comply with 8 C.F.R. 1240.11(c)(1)(iii) by not advising respondent of his right to counsel specifically in asylum-related relief nor provide him with a legal services list. Special thanks to IRAC. (Matter of K-O, 8/27/13)
    AILA Doc. No. 13100708.
  • BIA Grants Joint Motion to Reinstate Voluntary Departure (10/2/2013)
    Unpublished BIA decision where the Board, on remand from the Seventh Circuit’s decision in Akram v. Holder, granted a joint motion to reinstate voluntary departure and terminate proceedings. Special thanks to IRAC. (Matter of Akram, 8/27/13)
    AILA Doc. No. 13100242.
  • BIA Reopens Proceedings Over DHS Objection and Remands for Further Review (10/2/2013)
    Unpublished BIA decision where the Board reopened proceedings sua sponte over DHS objection and remanded the record to the Immigration Court for further proceedings regarding the respondent’s removability and the status of his conviction. Special thanks to IRAC. (Matter of Lall, 8/27/13)
    AILA Doc. No. 13100263.
  • BIA Grants Interlocutory Appeal After DHS Supports Motion to Change Venue (10/2/2013)
    Unpublished BIA decision where the Board granted an interlocutory appeal of a denial of the respondent’s motion to change venue after DHS filed a brief in support of the motion. Special thanks to IRAC. (Matter of Del Cid-Melara, 8/26/13)
    AILA Doc. No. 13100261.
  • BIA Remands After Pro Bono Organization Letter Was Undeliverable (10/1/2013)
    Unpublished BIA decision remanding case after finding that the IJ should have granted a further continuance for respondent to obtain counsel after noting that a letter sent to a pro bono organization was returned as undeliverable. Special thanks to IRAC. (Matter of Perez-Baez, 8/26/13)
    AILA Doc. No. 13100108.
  • OSC Settles After Company Asked for Specific Documents from Non-Citizens(1771 KB - 10/1/2013)
    OSC settlement after investigations initiated based on a referral from USCIS determined that Infinity Group utilized E-Verify and required non-citizens to present specific DHS documents to establish their identity or employment authorization while not making similar requests of U.S. citizens.
    AILA Doc. No. 13100107.
  • OSC Settlement Over Allegations of Preferring to Hire H-2As Over LPRs(1987 KB - 10/1/2013)
    OSC settled with Huber Nurseries, based in Maneim, Pennsylvania, resolving allegations that Huber engaged in citizenship status discrimination by preferring to hire temporary H-2A visa holders over LPRs from Nepal.
    AILA Doc. No. 13100106.
  • OSC Reached Agreement with Company After Job Postings Included Citizenship Status Preferences(1191 KB - 10/1/2013)
    OSC settled with International Business Machines Corporation (IBM) to resolve allegations that it violated the anti-discrimination provision of the INA when it placed online job postings for application and software developers that contained preferences for F-1 and H-1B temporary visa holders.
    AILA Doc. No. 13100103.
  • Staffing Company Agrees to Pay $21,000 in Civil Penalties for Immigration-Related Discrimination(637 KB - 9/30/2013)
    DOJ’s Office of Special Counsel settled with Paramount Staffing, resolving allegations that the company violated INA anti-discrimination provisions by requesting more or different documents from individuals during the employment verification process based on an individual’s citizenship status.
    AILA Doc. No. 13093000.
  • IJ Terminates Proceedings as DHS Failed to Provide Clear Evidence Respondent was Convicted of Deportable Offense(9784 KB - 9/27/2013)
    The Court terminated proceedings, holding that under the categorical approach NY's controlled substance schedule was broader than the federal counterpart and because the record of conviction does not indicate the substance the Respondent was convicted of possessing. Courtesy of Michael Goldman.
    AILA Doc. No. 13092744.
  • BIA Remands for IJ to Determine if Respondent Was Derivative Beneficiary of 245(i) Labor Certification (9/25/2013)
    Unpublished BIA decision sustaining the appeal, finding that the respondent's 245(i) AOS was denied based on erroneous determination that he submitted no evidence that his father was the same person as the labor certification beneficiary. Special thanks to IRAC. (Matter of Pandya, 8/22/13)
    AILA Doc. No. 13092555.
  • BIA Remands Because IJ Did Not Question Respondent After He Expressed Fear (9/19/2013)
    Unpublished BIA decision remanding the case "in an abundance of caution" because the IJ did not further question him after he expressed a fear of returning to Mexico. Special thanks to IRAC. (Matter of Guzman-Rodriguez, 8/23/13)
    AILA Doc. No. 13091944.
  • BIA Remands For IJ to Issue Full Decision on TPS Application (9/18/2013)
    Unpublished BIA decision remanding decision because IJ did not prepare a separate oral or written decision on the TPS denial and requesting that the IJ review whether the late-filed TPS application should be adjudicated on its merits. Special thanks to IRAC. (Matter of Hernandez, 8/23/13)
    AILA Doc. No. 13091855.
  • BIA Remands Due to Evolving Legal Standards Surrounding Aggravated Felony Definition (9/18/2013)
    Unpublished BIA decision where the Board remanded due to the evolving legal standard of whether his conviction constitutes an aggravated felony under 18 U.S.C. section 16(b) and the intervening decision in Descamps v. U.S. Special thanks to IRAC. (Matter of Gonzalez-Leyton, 8/21/13)
    AILA Doc. No. 13091846.
  • BIA Grants Interlocutory Appeal, Terminates Proceedings(801 KB - 9/16/2013)
    In this unpublished decision, the Board granted an interlocutory appeal from an IJ order denying the parties’ joint motion to terminate removal proceedings, and ordered the proceedings terminated so that the respondent could resume her naturalization application. Courtesy of John Gibson.
    AILA Doc. No. 13091647.
  • Unpublished BIA Case Granting AOS After Unauthorized Voting(531 KB - 9/16/2013)
    The Board found that Keathley v. Holder is binding precedent in this case and that the holding of that case compels a conclusion that the respondent in this case is not inadmissible under section 212(a)(10)(D) and the grant of AOS was valid. Courtesy of Richard Hanus.
    AILA Doc. No. 13091645.
  • OSC Settlement with Kelly Services, Inc. to Resolve Allegations of Citizenship Status Discrimination(581 KB - 9/13/2013)
    OSC settlement to resolve an allegation of citizenship status discrimination in the employment eligibility re-verification process. OSC initiated an investigation after a former employee reported he was requested to produce a new USCIS-issued document during the re-verification process.
    AILA Doc. No. 13091345.
  • BIA Found Respondent Abandoned LPR By Being Continuously Outside the U.S. (9/11/2013)
    Unpublished BIA decision where the Board dismissed the appeal and found that the respondent abandoned his lawful permanent resident (LPR) status and denied his application for a waiver of inadmissibility under INA 211(b). Special thanks to IRAC. (Matter of Garcia Guzman, 8/20/13)
    AILA Doc. No. 13091149.
  • BIA Terminates Proceedings After Pardon Granted (9/11/2013)
    Unpublished BIA decision terminating proceedings after the respondent was granted a full and unconditional pardon by the Governor of Ohio for his conviction for felony assault in violation of Ohio Revised Code section 2903.13(A). Special thanks to IRAC. (Matter of Lawlor, 8/16/13)
    AILA Doc. No. 13091145.
  • BIA Upholds Removal Order As Board Has No Authority to Consider Constitutional Challenge to INA (9/11/2013)
    Unpublished BIA decision where the Board upheld a removal order against a lawful permanent resident who served in the Marine Corps, as the Board has no authority to consider the respondent’s constitutional challenge to his removability. Special thanks to IRAC. (Matter of Hinds, 8/16/13)
    AILA Doc. No. 13091144.
  • BIA Denies Motion Because Respondent Does Not Qualify for Derived Citizenship (9/10/2013)
    Unpublished BIA decision where the Board found the respondent did not derive citizenship from his mother because he was already 21 when she naturalized and that the adjudication of his mother's application was not improperly delayed. Special thanks to IRAC. (Matter of Gould, 8/16/13)
    AILA Doc. No. 13091071.
  • BIA Remands So IJ May Consider Impact of Reduced Criminal Sentence on Removability (9/10/2013)
    Unpublished BIA decision remanding for further consideration of respondent's eligibility for voluntary departure after his sentence for theft was reduced to six months, making him eligible for the INA petty offense exception. Special thanks to IRAC. (Matter of Cuevas-Beltran, 8/15/13)
    AILA Doc. No. 13091070.
  • BIA Remands Because IJ Did Not Advise Respondent of All Forms of Eligible Relief (9/10/2013)
    Unpublished BIA decision where the Board found the respondent knowingly waived his right to counsel but remanded the case because the IJ must advise the respondent of the forms of eligible relief including voluntary departure. Special thanks to IRAC. (Matter of Barajas Acevedo, 8/15/13)
    AILA Doc. No. 13091057.
  • BIA Reopens Proceedings Sua Sponte After Padilla Hearing and Amended Pleas (9/10/2013)
    Unpublished BIA decision reopening proceedings sua sponte after a state court vacated the conviction for attempted assault in the second degree in violation of N.Y.P.L. 110-120.05-02 and allowed him to plead guilty to a lesser violation. Special thanks to IRAC. (Matter of Rajpaul, 8/15/13)
    AILA Doc. No. 13091055.
  • OCAHO Upholds ALJ Penalties Assessed Against Restaurant for I-9 Violations(51 KB - 9/9/2013)
    The respondent argued that the penalty, though reduced by the ALJ, was still severe in proportion to its ability to pay and that the ALJ failed to consider that the company had no previous violations. OCAHO affirmed the final decision. (U.S. v. Red Coach, 9/4/13)
    AILA Doc. No. 13090940.
  • BIA Upheld Denial of Adjustment Due to Evidence and Respondent’s Lack of Credibility (9/3/2013)
    Unpublished BIA decision where the Board upheld the denial of the respondent's adjustment application because he checked a box on a Form I-9 indicating that he was a U.S. citizen or national. Special thanks to IRAC. (Matter of Espino, 8/5/13)
    AILA Doc. No. 13090342.
  • BIA Reopened Proceedings After Evidence of U.S. Citizen Child is Provided (9/3/2013)
    Unpublished BIA decision where the Board reopened proceedings due to newly submitted evidence that the respondent was the father of a U.S. citizen child born to his wife. Special thanks to IRAC. (Matter of Roa-Carranza, 8/8/13)
    AILA Doc. No. 13090341.
  • BIA Terminates Proceedings After USCIS Approves Form I-129CW (8/30/2013)
    Unpublished BIA decision where the Board reopened and terminated proceedings sua sponte after determining that a Petition for a CNMI-Only Nonimmigrant Transitional Worker (Form I-129CW) filed on the respondent's behalf was approved. Special thanks to IRAC. (Matter of Burdeos, 8/8/13)
    AILA Doc. No. 13083047.
  • BIA Upheld Denial Because Respondent Did Not Depart Voluntarily (8/30/2013)
    Unpublished BIA decision upholding the denial of the motion to reopen because the respondent’s failure to depart voluntarily made him ineligible to adjust status for 10 years, even though his criminal case was dismissed. Special thanks to IRAC. (Matter of Orozco Garcia, 8/9/13)
    AILA Doc. No. 13083043.
  • BIA Remands To Give Respondent Opportunity to Find Representation (8/30/2013)
    Unpublished BIA decision remanding the case to give Respondent reasonable opportunity to obtain counsel after IJ ordered him removed at his second master calendar hearing despite his assertion that he was attempting to find representation. Special thanks to IRAC. (Matter of Hervens, 8/9/13)
    AILA Doc. No. 13083041.
  • BIA Finds Respondent’s Infraction To Be a “Conviction” (8/27/2013)
    Unpublished BIA decision where the Board rejected the respondent's argument that a theft offense where he pled nolo contendere was not a "conviction" for immigration purposes because it was processed as an "infraction.” Special thanks to IRAC. (Matter of Ugas Gil, 8/14/13)
    AILA Doc. No. 13082743.
  • BIA Denies Claim Finding Respondent Could Not Rely on Misstatements by USCIS (8/27/2013)
    Unpublished BIA decision upholding order of removal and denying respondents’ claim that the government was equitably estopped from removing them based on the respondent's receipt of an erroneous USCIS letter referring to an approved AOS. Special thanks to IRAC. (Matter of Qureshi, 8/14/13)
    AILA Doc. No. 13082742.
  • BIA Remands for Reopening Due to Respondent’s Eligibility for AOS (8/26/2013)
    Unpublished BIA decision where proceedings were reopened as matter of discretion to allow the respondent to pursue adjustment as beneficiary of an approved visa petition filed after receiving pre-conclusion voluntary departure. Special thanks to IRAC. (Matter of Rodriguez Martinez, 8/14/13)
    AILA Doc. No. 13082605.
  • BIA Denies Interlocutory Appeal as Question Raised Not Within Jurisdiction (8/26/2013)
    Unpublished BIA decision where the Board declined to exercise jurisdiction over a DHS interlocutory appeal challenging the decision of an IJ to admin close proceedings against a detained respondent awaiting adjudication of a U visa. Special thanks to IRAC. (Matter of Khan, 8/14/13)
    AILA Doc. No. 13082604.
  • BIA Declines Interlocutory Appeal As Issues Raised Do Not Fall Within Limited Ambit of Appropriate Cases (8/26/2013)
    Unpublished BIA decision where the Board declined to exercise jurisdiction over a DHS interlocutory appeal challenging the decision of an IJ to admin close proceedings against a detained respondent. Special thanks to IRAC. (Matter of Aguilera, 8/14/13)
    AILA Doc. No. 13082603.
  • BIA Terminates Proceedings After DHS Fails To Provide Proof LPR Card Is Fraudulent (8/26/2013)
    Unpublished BIA decision where the Board terminated proceedings against the respondent upon finding DHS provided no reason not to accept at face value the LPR card he was granted in 1990. Special thanks to IRAC. (Matter of Diaz, 8/14/13)
    AILA Doc. No. 13082659.
  • BIA Remands Order of Removal Issued in Absentia Due to Respondent’s Mother’s Actions (8/26/2013)
    Unpublished BIA decision where the Board remanded respondent's motion to reopen an order of removal issued in absentia, due to respondent's mother intentionally hid the NTA and hearing notices and forged his signature on an EOIR-28. Special thanks to IRAC. (Matter of Escobar, 8/14/13)
    AILA Doc. No. 13082663.
  • OCAHO Order Authorizing OSC To Seek Enforcement of Subpoena(45 KB - 8/26/2013)
    OCHAO order seeking enforcement of a subpoena for the delivery of I-9s. OCAHO sees I-9s not just as ordinary business records, but records that employers are obligated by law to maintain and present to appropriate agencies when requested. (In Re Investigation Of: NHS Human Services, 8/16/13)
    AILA Doc. No. 13082652.
  • BIA Remands Adjustment Case In Light of Garfias-Rodriguez(198 KB - 8/26/2013)
    In this unpublished decision, the BIA remanded the respondent’s case to the IJ to consider whether he relied on Acosta when he applied for adjustment of status and whether Matter of Briones should apply retroactively to him. Courtesy of Daniel Shanfield.
    AILA Doc. No. 13082649.
  • OCAHO Reduces Fines from $70,967 to $23,700(134 KB - 8/26/2013)
    OCAHO reduces fines to midrange of permissible penalties after considering whole record. OCAHO also finds company cannot argue that it had no opportunity to explore the specifics of the alleged violations because it declined to participate in discovery. (U.S. v. Platinum Builders, 8/20/13)
    AILA Doc. No. 13082644.
  • BIA Holds Violation Under 18 USC §1001(a)(2) for Knowingly Making a False Statement is CIMT(54 KB - 8/23/2013)
    The Board held that a noncitizen who enters the U.S. by falsely claiming U.S. citizenship is not deemed to have been admitted under §101(a)(13)(A), and making a false statement to obtain a passport in violation of 18 USC §1001(a)(2) is a CIMT. Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013)
    AILA Doc. No. 13082344.
  • BIA on 245(i) and Grandfathering for Derivative Applicants(54 KB - 8/23/2013)
    The Board held that a spouse or child accompanying or following to join a grandfathered principal cannot qualify as a grandfathered derivative for purposes of §245(i) by virtue of a spouse or child relationship that arose after 4/30/01. Matter of Estrada, 26 I&N Dec. 180 (BIA 2013)
    AILA Doc. No. 13082343.
  • BIA Terminates Proceedings Finding Respondent Was Paroled In (8/21/2013)
    Unpublished BIA decision terminating proceedings where DHS agreed that respondent was paroled in, and thus eligible to adjust status under the Cuban Adjustment Act, even though he initially entered without inspection. Special thanks to IRAC. (Matter of Travieso-Izquierdo, 8/12/13)
    AILA Doc. No. 13082144.
  • BIA Remands Over DHS Opposition Even Though I-130 was Referred for Reconsideration (8/21/2013)
    Unpublished BIA decision where the Board granted a motion to remand over DHS opposition as the approved I-130 has been referred for reconsideration but there is no evidence that the approved visa petition has been reconsidered and revoked. Special thanks to IRAC. (Matter of Dontoh, 8/12/13)
    AILA Doc. No. 13082143.
  • BIA Finds Attorney Inability to Contact Respondent Constitutes Exceptional Circumstances (8/21/2013)
    Unpublished BIA decision where the Board reopened proceedings after finding the respondent's attorney's inability to notify him that he received the hearing notice constituted exceptional circumstances, justifying his failure to appear. Special thanks to IRAC. (Matter of Araiza, 8/12/13)
    AILA Doc. No. 13082142.
  • BIA Remands Due to Pending Visa Petition in Separate Proceedings (8/21/2013)
    Unpublished BIA decision where the Board remanded the record to the IJ to determine if further continuance is warranted in light of the pending visa petition in separate proceedings. Special thanks to IRAC. (Matter of Owusu, 8/13/13)
    AILA Doc. No. 13082141.
  • BIA Reopens Proceedings After Finding Exceptional Circumstances Justifying her Failure to Appear (8/21/2013)
    Unpublished BIA decision where the Board reopened proceedings after finding the respondent's daughter's failure to provide the hearing notices constituted exceptional circumstances justifying the respondent’s failure to appear. Special thanks to IRAC. (Matter of Scaranni, 8/13/13)
    AILA Doc. No. 13082140.
  • BIA Upheld Order of Removal Due to Unauthorized Employment (8/20/2013)
    Unpublished BIA decision where the Board upheld an order of removal and denial of AOS stating that the mere filing of an adjustment application does not stop the counting of the period of unauthorized employment for purposes of INA 245(k). Special thanks to IRAC. (Matter of Yav, 8/13/13)
    AILA Doc. No. 13082047.
  • BIA Reopens Proceedings Sua Sponte After Incorrectly Requiring Waiver of Inadmissibility (8/20/2013)
    Unpublished BIA decision where the Board reopened proceedings sua sponte upon finding it incorrectly concluded in a prior decision that she made a material misrepresentation that required her to obtain a 212(i) waiver of inadmissibility. Special thanks to IRAC. (Matter of Muasher, 8/13/13)
    AILA Doc. No. 13082046.
  • OCAHO Reduces Penalties from $26,881 to $10,000(54 KB - 8/19/2013)
    OCAHO states that while the company is liable for producing newly-created and backdated I-9s at the time of inspection, it is inappropriate to enhance penalties across the board based on the presence of some unauthorized workers. (U.S. v. Natural Environment, Inc., 8/15/13)
    AILA Doc. No. 13081944.
  • DOJ Settlement with Forever 21 over Immigration-related Discrimination Claim(112 KB - 8/19/2013)
    DOJ’s Office of Special Counsel settlement for back pay and civil penalties with Forever 21, due to violations of the anti-discrimination provision of the INA for rejecting an employee’s EAD and requiring her to produce a Permanent Resident Card as a condition of employment.
    AILA Doc. No. 13081941.
  • DOJ Settlement with SOS Employment Group over Immigration-related Discrimination Claim(352 KB - 8/19/2013)
    DOJ’s Office of Special Counsel settlement for back pay and civil penalties with SOS Employment Group, due to violations of the anti-discrimination provision of the INA for rejecting an employee’s valid driver’s license and unrestricted Social Security card and requiring him to produce an EAD.
    AILA Doc. No. 13081940.
  • BIA Affirms IJ Finding that Respondent Failed to Meet Burden of Proof to Establish Derivative Citizenship (8/14/2013)
    Unpublished BIA decision where the Board affirmed without opinion an immigration judge's finding that the respondent did not carry his burden of proving that he derived citizenship from his mother prior to her death. Special thanks to IRAC. (Matter of Laventure, 8/2/13)
    AILA Doc. No. 13081450.
  • BIA Vacates Its Prior Decision and Remands Case Due to Prior Counsel’s Actions (8/14/2013)
    Unpublished BIA decision remanding the case to allow the respondent to apply for relief from removal upon finding he was potentially prejudiced by prior counsel's failure to pursue applications for asylum or adjustment of status. Special thanks to IRAC. (Matter of Ramirez-Samuel, 8/2/13)
    AILA Doc. No. 13081449.
  • BIA Reopens Proceedings Due to Non-Receipt of Second Hearing Notice (8/14/2013)
    Unpublished BIA decision granting a motion to reconsider and reopening proceedings upon finding the respondent did not receive a second hearing notice that advanced the date of his master calendar hearing by more than a year. Special thanks to IRAC. (Matter of Tokbaev, 8/6/13)
    AILA Doc. No. 13081446.
  • Unpublished BIA Case Sustains Appeal and Remands Asylum Case to Different IJ(408 KB - 8/13/2013)
    The Board sustained the appeal for reconsideration of the respondent’s credibility and her eligibility for asylum from Syria. BIA also granted the respondent’s request for future proceedings to be before a different Immigration Judge. Courtesy of Robert DeKelaita.
    AILA Doc. No. 13081319.
  • DOJ Complaint Against Texas Bus Company Alleging Employment Discrimination(993 KB - 8/13/2013)
    DOJ complaint alleging that the respondent engaged in employment discrimination in the hiring process by favoring the employment of temporary foreign nationals under the H-2B program over otherwise qualified U.S. citizens. (U.S. v. Autobuses Ejecutivos, LLC, 8/5/13)
    AILA Doc. No. 13081309.
  • BIA Denies Remand Stating that DACA for Son Does Not Provide Basis for Administrative Closure (8/13/2013)
    Unpublished BIA decision denying respondent's request for a remand upon finding the grant of relief under DACA to the respondent's son did not provide a valid basis for administrative closure. Special thanks to IRAC. (Matter of Ascencio-Hernandez, 8/6/13)
    AILA Doc. No. 13081307.
  • OCAHO Lowers Penalties Finding that ICE’s Fine of 30% of Annual Profit Too High(49 KB - 8/13/2013)
    OCAHO lowers penalties stating that ICE’s assessed fine of 30% of the company’s annual profit is an extremely high fine for any employer, especially a small restaurant that acted in good faith and had high employee turnover. (U.S. v. New Sun, 8/7/13)
    AILA Doc. No. 13081302.
  • OCAHO Lowers Penalties Noting that Company Is Now Under New Management(57 KB - 8/13/2013)
    OCAHO lowers penalties, stating that, where management of a company has changed hands, the deterrent effect of higher fines imposed on prior management will have no effect on new management, and taking into account all factors, a reduction in fines is warranted. (U.S. v. Red Coach, 8/7/13)
    AILA Doc. No. 13081300.
  • BIA Remands to IJ to Determine if Respondent Qualifies for a Provisional Waiver (8/13/2013)
    Unpublished BIA order remanding case to IJ to determine whether administrative closure was warranted if respondent qualified for a provisional unlawful presence waiver (Form I-601A). Special thanks to IRAC. (Matter of Camacho-Infanzan, 8/6/13)
    AILA Doc. No. 13081313.
  • OCAHO Lowers Penalty to Midrange of Permissible Penalties(2723 KB - 8/9/2013)
    OCAHO reduced fines as proposed penalty was excessive in light of the record, given the small size of the business and the undisputed fact that the restaurant was struggling and the employer was simply unaware of the I-9 requirement until it received the NOI. (U.S. v. Mr. Mike’s, 8/9/13)
    AILA Doc. No. 13080939.
  • BIA Finds Conditions in Syria Have Dramatically Worsened(578 KB - 8/8/2013)
    In an unpublished decision, the Board disagreed with IJ’s determination that respondent did not merit cancellation of removal. Remand was also warranted on the issue of “exceptional and extremely unusual hardship” due to the changing country conditions in Syria. Courtesy of Robert DeKelaita.
    AILA Doc. No. 13080851.
  • OCAHO Offers Reduction of Lump Sum Penalty or Acceptance of ICE’s Payment Schedule(483 KB - 8/8/2013)
    OCAHO finds that penalty is close to maximum permissible and offers Monadnock the option of paying a lump sum penalty of $10,500, or, alternatively, accepting ICE’s offer of a three-year payment schedule and paying a penalty over time totaling $14,630. (U.S. v. Monadnock, 8/1/13)
    AILA Doc. No. 13080842.
  • BIA Finds Florida Grand Theft Conviction Is Not a CIMT (8/5/2013)
    Unpublished BIA decision upholding the termination of proceedings upon finding the respondent's conviction for grand theft was not a crime involving moral turpitude. Special thanks to IRAC. (Matter of Butler, 7/26/13)
    AILA Doc. No. 13080553.
  • BIA on Criminal Activity That Endangers Public Safety(516 KB - 8/5/2013)
    The Board held that the respondent’s conviction for destruction of an aircraft or aircraft facilities is not an aggravated felony, but does make him removable under INA §237(a)(4)(A)(ii) as an alien who endangered public safety. Matter of Tavarez Peralta, 26 I&N Dec. 171 (BIA 2013)
    AILA Doc. No. 13080547.
  • BIA Grant’s DHS Motion to Withdraw Appeal in Case Involving Definition of “Lawful Status” Under 245(k) (7/31/2013)
    Unpublished BIA decision granting DHS' motion to withdraw its appeal from the IJ’s decision which granted the respondent adjustment of status under section 245(k) and remanding the case for background checks. Special thanks to IRAC. (Matter of Maynigo, 7/31/13)
    AILA Doc. No. 13073159.
  • BIA Remands for IJ to Consider Whether Conviction is a Crime of Violence (7/31/2013)
    Unpublished BIA decision where the Board remanded for further proceedings after finding that assault by use or display of dangerous weapon under Iowa Code 708.1 and 708.2(3) was not a categorical crime of violence. Special thanks to IRAC. (Matter of Imeri, 7/31/13)
    AILA Doc. No. 13073100.
  • BIA Terminating Proceedings After Criminal Sentence Reduced (7/31/2013)
    Unpublished BIA decision terminating proceedings due to newly submitted evidence that the respondent's criminal sentence was reduced to 364 days, making his conviction no longer an aggravated felony under Matter of Cota-Vargas. Special thanks to IRAC. (Matter of Nelson, 7/31/13)
    AILA Doc. No. 13073101.
  • BIA Reopens Proceedings Due to Approved I-130 and Lack of DHS Opposition (7/31/2013)
    Unpublished BIA decision where the Board reopened proceedings sua sponte in light of the respondent's marriage to a U.S. citizen who filed an approved I-130 on her behalf and the lack of opposition from the DHS. Special thanks to IRAC. (Matter of Martins, 7/31/13)
    AILA Doc. No. 13073158.
  • OCAHO Balances Seriousness of Violations With Record as a Whole(519 KB - 7/30/2013)
    OCAHO stated that ICE’s proposed fines were on the low side in light of the seriousness of the violations but when business losses and the record as a whole were accounted for, OCAHO declined to alter the fine amount. (U.S. v. Super 8 Motel & Villella Italian Restaurant, 7/22/13)
    AILA Doc. No. 13073043.
  • BIA Granted Joint Interlocutory Appeal of Denial of Administrative Closure Motion (7/30/2013)
    Unpublished BIA decision granting a joint interlocutory appeal of a denial of a joint motion for administrative closure because the immigration judge's order set forth no basis or rationale warranting the denial of the motion. Special thanks to IRAC. (Matter of Murillo-Borjas, 7/30/13)
    AILA Doc. No. 13073059.
  • OCAHO Dismisses Complaint As Untimely Filed(484 KB - 7/30/2013)
    OCAHO final order of dismissal finding that the complaint of discrimination based on citizenship status and national origin and retaliation was untimely filed and equitable tolling was not warranted based on the record. (Salim J. Hajiani v. Ali Properties, LLC, 7/16/13)
    AILA Doc. No. 13073042.
  • OCAHO Dismisses Complaint After Legitimate Nondiscriminatory Reason for Discharge Provided(514 KB - 7/30/2013)
    OCAHO dismissed complaint finding the issue was not if the employer’s expectations or assessment of De Araujo’s performance were fair, reasonable, or objectively “correct,” but whether it was a case of citizenship status discrimination or retaliation. (Jose Carlos De Araujo v. JSE, 7/3/13)
    AILA Doc. No. 13073041.
  • BIA Grants Motion to Reopen After Immigrant Visa Approved (7/29/2013)
    Unpublished BIA decision where the Board granted the respondent's motion to reopen over the objection of DHS to allow him to apply for adjustment of status. Special thanks to IRAC. (Matter of Bahronov, 7/29/13)
    AILA Doc. No. 13072902.
  • BIA Remands for Consideration of Whether Respondent is Eligible for I-601A (7/29/2013)
    Unpublished BIA decision where the Board remanded the case "in an abundance of caution" for consideration of whether the respondent was eligible for a provisional unlawful presence waiver (Form I-601A). Special thanks to IRAC. (Matter of Pulido-Aguirres, 7/29/13)
    AILA Doc. No. 13072901.
  • BIA Terminates Proceedings as Crime Must Show Intent to Permanently Deprive to be CIMT (7/29/2013)
    Unpublished BIA decision terminating proceedings as the grand theft conviction under Florida Stat. 812.014(2)(c)(1) is not a categorical crime involving moral turpitude as the conviction did not show intent to permanently deprive. Special thanks to IRAC. (Matter of Edmond, 7/29/13)
    AILA Doc. No. 13073000.
  • OCAHO Adjusted Fines to Mid-Range Due to Lack of Bad Faith(492 KB - 7/26/2013)
    OCAHO reduced fines due to lack of bad faith and stated that fines should be assessed for appropriateness and not by whether the employer can pay. The fact that a company has the ability to pay a fine is not enough to establish that it should be required to. (U.S. v New Star Buffet, 7/25/13)
    AILA Doc. No. 13072645.
  • OCAHO Dismisses Allegations of Discrimination and Document Abuse(490 KB - 7/25/2013)
    OCAHO dismisses allegations of discrimination and document abuse as employee did not provide evidence to support an inference that employer’s reason for terminating him was a cover-up for a discriminatory motive or intent. (Travis John Guth v. Kaiser Permanente Hawaii, 7/18/13)
    AILA Doc. No. 13072549.
  • OCAHO Reduces I-9 Penalties Due To Being Unduly Harsh(484 KB - 7/25/2013)
    OCAHO lowers penalties for Form I-9 violations from $38,335 to $17,500, since the government’s requested fine is more than a third of the company’s undistributed profits and is unduly harsh in light of the record and company setbacks. (U.S. v Pharaoh’s Gentleman’s Club, Inc., 7/18/13)
    AILA Doc. No. 13072548.
  • BIA Granted DHS’s Request to Withdraw Appeal After Amended Conviction Was No Longer Aggravated Felony (7/26/2013)
    Unpublished BIA decision granting DHS' request to withdraw its appeal and upholding termination of proceedings after respondent withdrew of her guilty plea to possession of stolen vehicle in violation of Nev. Rev. Stat. 205.273(b)(1). Special thanks to IRAC. (Matter of Enriquez, 7/26/13)
    AILA Doc. No. 13072619.
  • BIA on Motions to Reopen Based on Changed Country Conditions(61 KB - 7/19/2013)
    The Board held that a noncitizen with an in absentia order doesn’t need to rescind the order before seeking a motion to reopen to apply for asylum based on changed country conditions, and that such motions are not subject to numerical limitations. Matter of J-G-, 26 I&N Dec. 161 (BIA 2013)
    AILA Doc. No. 13071900.
  • BIA Remands Denial of I-130 Filed By Same-Sex Couple, Holds DOMA Is Not an Impediment(463 KB - 7/17/2013)
    The Board held that Section 3 of the Defense of Marriage Act (DOMA) is no longer an impediment to the recognition of lawful same-sex marriages and spouses under the INA if the marriage is valid under the laws of the State where it was celebrated. Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013)
    AILA Doc. No. 13071750.
  • BIA Critiques and Reverses IJ’s Adverse Credibility Finding(1035 KB - 7/11/2013)
    In an unpublished decision, the Board strongly critiqued several aspects of the IJ’s adverse credibility finding, and held that the respondent established past persecution on account of his sexual orientation. Special thanks to NIJC.
    AILA Doc. No. 13071151.
  • BIA Reverses Adverse Credibility Finding Against Antiguan Asylum Applicant(895 KB - 7/11/2013)
    In an unpublished decision, the Board held that the IJ’s adverse credibility finding was clear error, and that the respondent established past persecution at the hands of police officers in Antigua and Barbuda on account of his sexual orientation. Special thanks to NIJC.
    AILA Doc. No. 13071150.
  • BIA Finds Grant of Asylum is Not “Admission” Under INA §101(a)(13)(A)(481 KB - 7/11/2013)
    The Board remanded the case to the IJ, holding that a grant of asylum is not an “admission” to the U.S., and IJ should make a threshold determination regarding termination of asylum status when the asylee is in removal proceedings. Matter of V-X-, 26 I&N Dec. 147 (BIA 2013)
    AILA Doc. No. 13071146.
  • BIA Holds Intentional Distribution of Proceeds of Illicit Drug Business Is Not An Aggravated Felony(465 KB - 7/10/2013)
    The Board held the offense of traveling in interstate commerce with the intent to distribute the proceeds of an unlawful drug enterprise is not an aggravated felony under INA §101(a)(43)(B). Matter of Flores-Aguirre, 26 I&N Dec. 155 (BIA 2013)
    AILA Doc. No. 13071060.
  • OSC Settlement with Macy’s to Resolve Immigration-Related Unfair Employment Practices(1099 KB - 7/10/2013)
    OSC settlement with Macy’s due to unfair documentary practices against work-authorized immigrant employees. Macy’s agreed to revise its employment verification policies and provide training to HR personnel on INA’s anti-discrimination provision, as well as to pay civil penalties and back pay.
    AILA Doc. No. 13071053.
  • BIA Addresses DHS NTA Service on Individuals Who Lack Mental Competency(104 KB - 6/25/2013)
    The Board addressed who DHS should serve with the NTA where indicia of a respondent’s incompetency are manifest, and determined that an IJ should evaluate the benefit of re-serving the NTA in certain cases. Matter of E-S-I-, 26 I&N Dec. 136 (BIA 2013)
    AILA Doc. No. 13062502.
  • OCAHO Lowers Penalties to “Sufficiently Meaningful” Level(106 KB - 6/21/2013)
    OCAHO lowers penalties as they should be “sufficiently meaningful to accomplish the purpose of deterring future violations, without being ‘unduly punitive’ in light of the respondent’s resources.” (U.S. v A&J Kyoto Japanese Restaurants, Inc., 6/13/13)
    AILA Doc. No. 13062103.
  • OCAHO Denial of Request for Administrative Review(79 KB - 6/21/2013)
    OCAHO denied respondent’s request for administrative review due to failure to comply with procedural regulations including timeliness of filing, incorrect information in the certificate of service, and failure to forward the signed original filing. (U.S. v Silverado Stages, Inc., 6/12/13)
    AILA Doc. No. 13062102.
  • BIA Rejects “Stand-alone” §212(h) Waiver(49 KB - 6/20/2013)
    The Board held that a §212(h) waiver is not available without a concurrently filed adjustment application and that the waiver cannot be granted nunc pro tunc to avoid the requirement that the alien be eligible for adjustment. Matter of Rivas, 26 I&N Dec. 130 (BIA 2013)
    AILA Doc. No. 13062005.
  • OCAHO Declines to Modify/Vacate Final Decision and Order of Dismissal(531 KB - 6/14/2013)
    OCAHO acknowledged respondent’s pro se status but found that he had not demonstrated that he acted in good faith or with the requisite due diligence to comply with the orders issued by the ALJ and maintain his defense of this case. (U.S. v Mitchell Greif, 5/20/13)
    AILA Doc. No. 13061440.
  • BIA on Applicability of INA §204(c) to Stepchildren(464 KB - 6/5/2013)
    The Board found that the visa petition filed by the petitioner on behalf of his stepson was improperly denied, holding that INA §204(c) applies only to an individual who sought to be accorded status as a spouse. Matter of Otiende, 26 I&N Dec. 127 (BIA 2013)
    AILA Doc. No. 13060557.
  • BIA Remands Denial of §237(a)(1)(H) Waiver(588 KB - 6/5/2013)
    In an unpublished decision, the BIA reversed the IJ and remanded the case, holding that the consular officer could not have known or had a reason to believe that the respondent was an illicit trafficker at the time the respondent was admitted to the U.S. Courtesy of Sheri Benchetrit.
    AILA Doc. No. 13060552.
  • Miami Immigration Judge Grants Motions to Suppress Evidence(779 KB - 6/5/2013)
    In two cases, the Miami immigration judge granted a motion to suppress evidence based on an unlawful search and seizure conducted by ICE and terminated the removal proceedings. Courtesy of Ysabel M. Hernández.
    AILA Doc. No. 13060551.
  • OCAHO Finds Failure to Prepare Form I-9 in a Timely Manner a Serious Violation(551 KB - 6/3/2013)
    OCAHO finds that timely and proper completion of I-9 forms is precisely what the law and regulations require and each failure to properly prepare, retain, or produce the form upon request constitutes a separate violation. (U.S. v Anodizing Industries, Inc., 5/24/13)
    AILA Doc. No. 13060347.
  • OCAHO Determines Fines to Be Within Statutory Parameters(514 KB - 5/24/2013)
    Respondent argues that ICE has too much discretion in deciding if a violation is substantive and in determining penalties. OCAHO responds that ICE does not have unfettered discretion and is bound by the Virtue memo. (U.S. v Silverado Stages, Inc., 5/13/13)
    AILA Doc. No. 13052445.
  • OCAHO Order Declining to Modify or Vacate Interlocutory Order(511 KB - 5/24/2013)
    OCAHO declines to modify or vacate the order denying the respondent’s motion to dismiss for failure to state a claim, and adopts the order. OCAHO reminds parties to properly file and serve requests for review. (U.S. v Spilt Rail Fence Company, Inc., 5/13/13)
    AILA Doc. No. 13052444.
  • OCAHO Dismisses Complaint of Firing Due to Citizenship Status and National Origin(548 KB - 5/24/2013)
    OCAHO dismisses complaint as discrimination must be based on disparate treatment of similarly situated individuals and the employer must show that the potential comparators are similarly situations in all material respects. (Martinez v. Superior Linen, 5/3/13)
    AILA Doc. No. 13052443.
  • OCAHO Adjusts Fines to Deter Future Violations Without Being “Unduly Punitive”(516 KB - 5/20/2013)
    OCAHO reduces fines, finding that the fact that ICE chooses to disbelieve the employer’s explanation for completing forms late does not constitute evidence of bad faith. This is a companion case to U.S. v. Siwan & Brothers. (U.S. v. Siwan & Sons, 5/3/13)
    AILA Doc. No. 13052049.
  • IJ Grants Deferral of Removal Under CAT to Mentally Ill Respondent(3647 KB - 5/20/2013)
    The immigration judge granted deferral of removal under CAT, and held that the long-term use of physical restraints and psychotropic drugs in a Mexican psychiatric institution constitutes torture. Courtesy of Anna Markovich.
    AILA Doc. No. 13052045.
  • OCAHO Finds Fines Excessive in Light of Record as a Whole(516 KB - 5/20/2013)
    Fines reduced finding that absent specific evidence, there can be no presumption that the human resources training program of a large parent franchisor necessarily include I-9 compliance training at the time this store was opened. (U.S. v. Siwan & Brothers, 5/2/13)
    AILA Doc. No. 13052044.
  • BIA Holds Child Cannot Rely on Parent’s Status and Residence to Establish Cancellation Eligibility(468 KB - 5/16/2013)
    The Board held that a parent’s LPR status and residence in the U.S. cannot be imputed to an unemancipated minor for purposes of establishing the child’s eligibility for cancellation of removal. Matter of Montoya-Silva, 26 I&N Dec. 123 (BIA 2013)
    AILA Doc. No. 13051649.
  • BIA Reverses IJ, Grants Cancellation of Removal(748 KB - 5/16/2013)
    In this unpublished decision, the Board found that the IJ did not properly consider evidence of the country conditions in Honduras, including the effects of Hurricane Mitch and the testimony of an expert witness. Courtesy of Thomas Fulghum.
    AILA Doc. No. 13051648.
  • BIA on the Effect of Dual Nationality on an Asylum Claim(469 KB - 5/7/2013)
    The Board held that an individual who is a citizen or national of more than one country, but has no fear of persecution in one of the those countries, does not qualify as a refugee under INA §101(a)(42). Matter of B-R-, 26 I&N Dec. 119 (BIA 2013)
    AILA Doc. No. 13050742.
  • BIA Reverses IJ on Severity of Past Persecution(613 KB - 5/1/2013)
    In an unpublished decision, the BIA held that the asylum applicant had compelling reasons for being unwilling to return to Liberia because of the severity of the persecution he suffered, despite a fundamental change in country circumstances. Courtesy of Stephen Meili.
    AILA Doc. No. 13050153.
  • BIA Finds IJ Cannot Deny Asylum Application Without Merits Hearings(2772 KB - 5/1/2013)
    In an unpublished decision, the BIA held that the IJ erred by requiring the asylum applicant to establish a prima facie asylum case in their written asylum application as a prerequisite to holding a hearing and remanded the case to the IJ. Courtesy of Patricia G. Mattos.
    AILA Doc. No. 13050152.
  • OCAHO Dismisses Complaint Due to Abandonment(65 KB - 4/26/2013)
    OCAHO dismissed complaint since respondent did not respond to request for hearing and Notice of Intent to Fine became the final order in the matter. DHS remains at liberty to continue its investigation. (U.S. v. Mitchell Greif, 4/18/13)
    AILA Doc. No. 13042501.
  • OCAHO Left Penalty Proposal Unaltered But Disagreed with ICE Reasoning(523 KB - 4/26/2013)
    OCAHO stated that the percentage of I-9s with violations relative to the total number of I-9s could not be used as a test of seriousness since that percentage was used to set the baseline penalty. (U.S. v. Modern Disposal, 3/28/13)
    AILA Doc. No. 13042661.
  • BIA Remands §245(i) Case, Finds Labor Certification Was “Approvable When Filed”(522 KB - 4/22/2013)
    The Board held that the labor certification filed by the respondent was “approvable when filed” for purposes of grandfathering under §245(i) because it was properly filed, non-frivolous, and meritorious in fact. Matter of Butt, 26 I&N Dec. 108 (BIA 2013)
    AILA Doc. No. 13042255.
  • BIA Holds That Minors Accrue Unlawful Presence for Purposes of §212(a)(9)(C)(684 KB - 4/22/2013)
    In an unpublished case, the BIA held that unlawful presence accrues for the purposes of INA §212(a)(9)(C) during the time an individual spends in the U.S. while under the age of 18.
    AILA Doc. No. 13042252.
  • IJ Grants Humanitarian Asylum to Romanian Applicant(1447 KB - 4/1/2013)
    In this unpublished decision, the IJ granted humanitarian asylum pursuant to 8 C.F.R. §1208.13(b)(1)(iii)(B) based on the reasonable possibility that the applicant would suffer other serious harm in Romania. Courtesy of Russell R. Abrutyn.
    AILA Doc. No. 13040155.
  • OCAHO Finds That Missing and Defective I-9s Do Not Equal a Lack of Good Faith(529 KB - 3/27/2013)
    OCAHO reduced fines, finding that based on the respondent’s circumstances and resources, the proposed penalty was modified from being close to the maximum permissible fine, to an amount closer to the mid-range of possibilities. (U.S. v. Siam Thai, 3/18/13)
    AILA Doc. No. 13032754.
  • OCAHO Finds Failure to Complete Section 2 of I-9 a Substantive Violation(512 KB - 3/27/2013)
    OCAHO reduces fines, but finds that copying documents is not a satisfactory substitute for properly completing section 2 of an I-9 form and failure to properly complete the section 2 attestation remains a substantive violation. (U.S. v. Seven Elephants, 3/18/13)
    AILA Doc. No. 13032748.
  • OCAHO Reduces Fines As ICE Provided No Evidence of Bad Faith(479 KB - 3/19/2013)
    OCAHO reduced the fines, finding that a low rate of compliance may not be used to increase a penalty based upon the good faith criterion, and that while the violations are serious, they do not translate to a finding of bad faith. (U.S. v. El Azteca, 3/13/13)
    AILA Doc. No. 13031949.
  • OCAHO Dismisses Complaint Due to Untimely Filing(436 KB - 3/13/2013)
    OCAHO dismisses complaint as untimely filed, because even though the complainant sent a letter to OSC before the complaint forms were received, the filing of a letter is not a substitute for filing a formal complaint within the 90 day deadline. (Lopez v. Jung, 3/4/13)
    AILA Doc. No. 13031345.
  • OCAHO Reduces Fines Due to High Turnover Rate of Restaurant Industry(461 KB - 3/11/2013)
    OCAHO reduced the fine, finding that the assessment of the number of employees should focus on the number that actually worked at a particular time rather than the aggregate number of total employees/former employees. (U.S. v. MEMF, 3/1/13)
    AILA Doc. No. 13031157.
  • BIA Holds Unlawful Animal Fighting Conviction is CIMT(420 KB - 3/11/2013)
    The Board held that the respondent is not eligible for cancellation because his conviction for sponsoring or exhibiting an animal in an animal fighting venture is categorically a crime involving moral turpitude. Matter of Ortega-Lopez, 26 I&N Dec. 99 (BIA 2013)
    AILA Doc. No. 13031151.
  • DHS Briefs Filed With BIA on 212(c) Cases Post-Judulang(2370 KB - 3/8/2013)
    DHS supplemental briefs to the BIA in two cases, discussing the impact of Judulang on 212(c) cases and arguing that an LPR can only receive a 212(c) waiver where he or she was deportable at the time of a pre-IIRIRA conviction.
    AILA Doc. No. 13030843.
  • BIA Finds HIV Diagnosis Constitutes Changed Circumstances in Asylum Case(1633 KB - 3/4/2013)
    In an unpublished asylum case, the BIA reversed the IJ, finding that the respondent’s HIV diagnosis and subsequent AIDS diagnosis constituted changed circumstances for the purposes of the one-year filing deadline. Courtesy of Ashley Huebner.
    AILA Doc. No. 13030458.
  • BIA Upholds Exception To Filing Deadline in Asylum Case With 18-Year Filing Delay(657 KB - 3/4/2013)
    In an unpublished asylum case, the BIA held that the respondent met an exception to the one-year filing deadline to overcome an 18-year filing delay based on the respondent’s HIV-positive diagnosis and struggle to accept his sexuality. Courtesy of Ashley Huebner.
    AILA Doc. No. 13030457.
  • OCAHO Reduces Fines, Finding Company Meets Definition of Small Business(471 KB - 2/27/2013)
    OCAHO reduces fine to mid-range of permissible penalty, finding that a business does not need to be in danger of failing to be considered small. Further, the fact that it is profitable does not necessarily make it a large employer. (U.S. v. Fowler Equipment, 2/20/13)
    AILA Doc. No. 13022643.
  • BIA Reverses IJ on Exception to One-Year Asylum Filing Deadline(307 KB - 2/15/2013)
    In an unpublished decision, the BIA held the respondent qualified for an exception to the one-year filing deadline based on her mother’s later arrest by Chinese officials, noting that “changed personal circumstances may form the basis of an exception.” Courtesy of Alan Lee.
    AILA Doc. No. 13021525.
  • BIA Reverses IJ, Grants Cancellation of Removal(615 KB - 2/15/2013)
    In an unpublished decision, the BIA determined that the respondents were eligible for cancellation of removal in part because of the hardship to their USC daughter, who is an extremely talented dancer and would be unable to continue her career. Courtesy of Kevin Crabtree.
    AILA Doc. No. 13021523.
  • OCAHO Dismisses Complaint Stating ICE Cannot Repudiate the Original Agreement(500 KB - 2/12/2013)
    OCAHO found that because the parties entered into a binding agreement, ICE is precluded from pursuing this matter further, and the complaint must be dismissed, even though the original agreement did not include consent findings. (U.S. v. CA Mantel, 2/8/13)
    AILA Doc. No. 13021255.
  • OCAHO States that Not All Violations are Equal(464 KB - 2/1/2013)
    OCAHO found that it is not appropriate to aggravate penalties for all violations across the board, as case law holds that the seriousness of a violation is evaluated on a continuum because not all violations are equally serious. (U.S. v Nebeker, Inc., 1/16/13)
    AILA Doc. No. 13020144.
  • OCAHO Increases Penalties for Knowing Hire Violation While Reducing Paperwork Violation Penalties(598 KB - 2/1/2013)
    OCAHO increased the penalties for knowing hire violations, stated that the knowing hire of an unauthorized alien is by definition not committed in good faith and are never less than extremely serious. (U.S. v Occupational Resource Mgmt., Inc., 1/23/13)
    AILA Doc. No. 13020143.
  • OCAHO States that Proportionality is Critical Factor in Setting Penalties(452 KB - 2/1/2013)
    OCAHO reduced penalties from $22,440 to $9,600 noting that penalties at or near the maximum permissible should be reserved for more egregious circumstances than poor rate of I-9 compliance absent other culpable conduct. (U.S. v La Hacienda Mexican Café, 1/24/13)
    AILA Doc. No. 13020140.
  • BIA on the U.N. Convention Against Transnational Organized Crime(438 KB - 1/31/2013)
    The Board found the respondent was statutorily barred from CAT relief, and held that the U.N. Convention Against Transnational Organized Crime does not provide an independent basis for relief in immigration proceedings. Matter of G-K-, 26 I&N Dec. 88 (BIA 2013)
    AILA Doc. No. 13013148.
  • OCAHO Reduces Penalties for “Mom and Pop” Business(486 KB - 1/23/2013)
    OCAHO reduced the penalties for the employer’s I-9 violations from $13,090 to $5,100, noting that the penalties requested by ICE appeared disproportionate to the size and character of the “mom and pop” business. (U.S. v. Taste of China, 1/10/13)
    AILA Doc. No. 13012353.
  • BIA Holds California Conviction for Indecent Exposure is CIMT(431 KB - 1/11/2013)
    The Board held that a conviction for indecent exposure under California Penal Code §314(1), which includes the element of lewd intent, is categorically a crime involving moral turpitude. Matter of Cortes Medina, 26 I&N Dec. 79 (BIA 2013)
    AILA Doc. No. 13011149.
 
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