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Department of Justice/EOIR

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  • BIA on “Lawful Status” Requirement and Renewed Adjustment Applications (3/27/2014)
    Unpublished BIA decision states that applicants who renew adjustment application in removal proceedings need not have maintained “lawful status” if requirement was met when application was originally filed with USCIS. (Matter of Lee, 3/27/14) Special thanks to IRAC.
    AILA Doc. No. 14041548.
  • BIA Administratively Closes Proceedings After Grant of DACA (4/11/2014)
    Unpublished BIA decision grants motion to administratively close proceedings in light of grant of DACA application and to sever proceedings with respondent’s mother. (Matter of Gonzalez, 2/21/14) Special thanks to IRAC.
    AILA Doc. No. 14041142.
  • BIA Reopens Proceedings Due to Attorney Advice Not to Attend Hearing (4/11/2014)
    Unpublished BIA decision reopens proceedings at which respondent was removed in absentia upon finding attorney's advice that he need not attend hearing constituted exceptional circumstances justifying his failure to appear. (Matter of Macal-Ventura, 2/20/14) Special thanks to IRAC.
    AILA Doc. No. 14041141.
  • BIA Finds IJ Failed to Provide Required Biometrics Warnings (4/11/2014)
    Unpublished BIA decision remands record because IJ deemed respondent’s TPS application abandoned without providing required warnings under 8 CFR 1003.47(d) regarding failure to provide biometrics. (Matter of Alfaro, 2/20/14) Special thanks to IRAC.
    AILA Doc. No. 14041140.
  • BIA Requires DHS to Disclose Records of Prior TPS Applications (4/10/2014)
    Unpublished BIA decision remands record because IJ failed to adequately address respondent's TPS claim and requires DHS to submit administrative record on remand regarding prior TPS applications. (Matter of Tunis, 2/20/14) Special thanks to IRAC.
    AILA Doc. No. 14041045.
  • BIA Remands Record Because IJ Incorporated Prior Findings “By Reference” in Decision (4/10/2014)
    Unpublished BIA decision remands for new decision were IJ’s discussion of DHS burden of proof was contained in transcript, incorporated “by reference” into the decision, and provided an insufficient basis for a meaningful review. (Matter of Kim, 2/19/14) Special thanks to IRAC.
    AILA Doc. No. 14041044.
  • BIA Upholds Grant of Adjustment Despite Numerous Criminal Convictions (4/10/2014)
    Unpublished BIA decision upholds grant of adjustment over DHS arguments that respondent was controlled substance trafficker, committed fraud at removal hearing, and did not merit favorable exercise of discretion. (Matter of R-P-, 2/19/14) Special thanks to IRAC.
    AILA Doc. No. 14041043.
  • BIA Upholds Treatment of Returning LPR as Applicant for Admission (4/9/2014)
    Unpublished BIA decision holds over dissenting opinion that respondent alleged to have fraudulently obtained LPR status was properly charged as applicant for admission upon returning from travel abroad. (Matter of Alcaraz, 2/18/14) Special thanks to IRAC.
    AILA Doc. No. 14040949.
  • BIA Terminates Proceedings Against Respondent Who Raised Constitutional Challenges (4/9/2014)
    Unpublished BIA decision grants joint motion to terminate proceedings against respondent who argued that he was unlawfully held under immigration detainer and that removal would be constitutionally disproportionate. (Matter of Villanueva, 2/18/14) Special thanks to IRAC.
    AILA Doc. No. 14040948.
  • BIA Says Diligence in Filing Could be Factor in Reopening Cases Sua Sponte (4/9/2014)
    Unpublished BIA decision declines to reopen sua sponte under Carachuri-Rosendo v. Holder but says “diligence in filing a motion could be a relevant factor to consider in determining whether sua sponte reopening is warranted.” (Matter of Alvarado, 2/14/2014) Special thanks to IRAC.
    AILA Doc. No. 14040947.
  • BIA Finds Nevada Attempted Possession of Stolen Vehicle Is Not an Aggravated Felony(502 KB - 4/8/2014)
    The BIA sustained the appeal and remanded, finding that attempted possession of a stolen vehicle under Nevada law, which requires a mental state of “reason to believe,” is not categorically an aggravated felony under INA §§ 101(a)(43)(G) and (U). Matter of Sierra, 26 I&N Dec. 288 (BIA 2014).
    AILA Doc. No. 14040843.
  • BIA Remands Discretionary Denial of Adjustment Application (4/4/2014)
    Unpublished BIA decisions remands discretionary denial of adjustment application where IJ failed to consider positive equities or make factual findings regarding alleged discrepancy between testimony and police report. (Matter of Coutinho, 2/11/14) Special thanks to IRAC.
    AILA Doc. No. 14040454.
  • BIA Reopens Proceedings Despite Lack of Evidence Commingling of Finances (4/4/2014)
    Unpublished BIA decision reopens proceedings over DHS opposition based on bona fides of marriage, excuses lack of commingling of finances because respondent lacked work authorization and wife was unemployed. (Matter of Anakor, 2/10/14) Special thanks to IRAC.
    AILA Doc. No. 14040453.
  • BIA Rescinds In Absentia Order Under Totality of the Circumstances (4/4/2014)
    Unpublished BIA decision rescinds in absentia removal order due to affidavits demonstrating lack of notice, respondent’s diligence in seeking reopening, and potential eligibility for cancellation of removal. (Matter of Sanchez, 2/10/14) Special thanks to IRAC.
    AILA Doc. No. 14040452.
  • BIA Finds Respondent Did Not Knowingly Waive Right to Appeal (4/4/2014)
    Unpublished BIA decision finds pro se respondent did not understand exchange with IJ to constitute knowing and intelligent waiver of right to appeal. (Matter of Ajche, 2/10/14) Special thanks to IRAC.
    AILA Doc. No. 14040451.
  • BIA Holds Florida Drug Trafficking Not an Aggravated Felony (4/2/2014)
    Unpublished BIA decision holds that "trafficking" of drugs under Fla. Stat. 893.135(1)(c)(1)(c) not an aggravated felony because statute covers simple possession and does not proscribe conduct that is a federal felony (Matter of Rivas, 2/7/14) Special thanks to IRAC.
    AILA Doc. No. 14040247.
  • BIA Summarily Affirms Decision Finding Respondent Mentally Competent (4/2/2014)
    Unpublished BIA decision affirms without opinion IJ decision finding respondent to be sufficiently mentally competent to represent himself under Matter of M-A-M-. (Matter of Castillo, 2/7/14) Special thanks to IRAC.
    AILA Doc. No. 14040246.
  • BIA Reverses IJ Denial of Joint Motion to Reopen (4/2/2014)
    Unpublished BIA decision says respondent’s failure to submit relief application and IJ concerns over timing of marriage not proper basis to deny joint motion to reopen. (Matter of Laurence, 2/7/14) Special thanks to IRAC.
    AILA Doc. No. 14040245.
  • BIA Finds Ineffective Assistance of Counsel Due to Failure to Contest Removability (4/1/2014)
    Unpublished BIA decision finds prior attorney provided ineffective assistance by failing to contest removability where conviction records did not sufficiently demonstrate type or amount of controlled substances. (Matter of Barrios Rojas, 2/7/14) Special thanks to IRAC.
    AILA Doc. No. 14040143.
  • BIA Remands for Consideration of Asylum Application (4/1/2014)
    Unpublished BIA decision finds respondent did not knowingly waive appeal and remands record because IJ did not provide opportunity to apply for asylum after expression of fear in El Salvador. (Matter of Melgar de Iglesias, 2/6/14) Special thanks to IRAC.
    AILA Doc. No. 14040142.
  • BIA on §237(a)(1)(H) Waiver Eligibility(617 KB - 3/31/2014)
    Unpublished BIA decision agreeing with the IJ that respondent was statutorily eligible for a waiver of deportability under §237(a)(1)(H) as a matter of discretion, even though he failed to disclose his time in the Serbian Army. Courtesy of Marshal E. Hyman.
    AILA Doc. No. 14033149.
  • BIA Remands for Consideration of Relief Under Former §212(c)(540 KB - 3/31/2014)
    Unpublished BIA decision granting the motion to reopen and remanding for consideration of the respondent’s application for relief under former §212(c), in light of the holdings in INS v. St. Cyr and Vartelas v. Holder. Courtesy of Siana J. McLean.
    AILA Doc. No. 14033143.
  • OCAHO Final Order of Dismissal of Discrimination Complaint(480 KB - 3/31/2014)
    OCAHO dismissed complaint, as issues with employment terms and conditions are not appropriate as only hiring, recruitment, and discharge are covered by the statute, and the claims of citizenship status discrimination was sufficiently insubstantial. (Salim Hajiani v. ESHA USA, Inc., 3/25/14)
    AILA Doc. No. 14033141.
  • BIA on Readjustment Under INA § 209(b)(468 KB - 3/28/2014)
    The Board held that an alien whose status has been adjusted from asylee to lawful permanent resident cannot subsequently readjust status under INA §209(b). Matter of C-J-H-, 26 I&N Dec. 284 (BIA 2014).
    AILA Doc. No. 14032849.
  • BIA Holds Extension of Nonimmigrant Visa Renders Entire Waiting Period in “Lawful Status” (3/28/2014)
    Unpublished BIA decision finds respondents maintained “lawful status” for entire period that applications to extend nonimmigrant status were pending, even though approval notice was sent years after extensions expired. (Matter of Norra, 3/21/14) Special thanks to IRAC.
    AILA Doc. No. 14032847.
  • BIA Reopens Proceedings Due to Attorney Failure to Seek Relief (3/26/2014)
    Unpublished BIA decision reopens proceedings due to ineffective assistance of counsel where the respondent’s prior attorney conceded failure to seek voluntary departure or administrative closure. (Matter of Barrera, 2/5/14) Special thanks to IRAC.
    AILA Doc. No. 14032642.
  • BIA Remands Record Due to USCIS Delay in Forwarding I-130 Appeal (3/26/2014)
    Unpublished BIA decision states that when respondent in removal proceedings is separately appealing denial of I-130, any delay by USCIS in forwarding record to Board is a factor in favor of granting continuance. (Matter of Ngema, 2/5/14) Special thanks to IRAC.
    AILA Doc. No. 14032641.
  • BIA Reverses Denial of 212(k) Waiver (3/26/2014)
    Unpublished BIA decision finds eligibility for 212(k) depends on applicant’s state of mind at time of initial admission rather than re-entry, and that failure to alert authorities of potential fraud is not adverse discretionary factor. (Matter of Shin, 2/4/14) Special thanks to IRAC.
    AILA Doc. No. 14032640.
  • BIA Remands for Consideration of Eligibility for Voluntary Departure(400 KB - 3/21/2014)
    Unpublished BIA decision remanding for consideration of the respondent’s eligibility for voluntary departure, as the respondent argued on appeal that he appeared pro se before the IJ and the IJ did not address his eligibility for voluntary departure. Courtesy of Cristobal Colindres.
    AILA Doc. No. 14032148.
  • BIA Recognizes Effeminate Gay Males from Mexico as Particular Social Group (3/21/2014)
    Unpublished BIA decision finds effeminate gay males from Mexico with female gender identities to qualify as particular social group for purposes of asylum and withholding of removal. (Matter of M-G-O-, 2/4/14) Special thanks to IRAC.
    AILA Doc. No. 14032146.
  • BIA Reopens Proceedings After Amendment to Criminal Indictment (3/21/2014)
    Unpublished BIA decision reopens proceedings after trial court strikes term “embezzlement” and reference to respondent’s employer from criminal indictment. (Matter of Flores-Razo, 1/31/14) Special thanks to IRAC.
    AILA Doc. No. 14032145.
  • OCAHO Adjusts Fines for Masonry Company But Keeps At Higher End of Mid-Range of Fines(800 KB - 3/20/2014)
    OCAHO reduced penalties, but rejected assertion ICE was barred from pursing an investigation based on a newspaper article and distinguishes company from a “mom and pop” family restaurant or struggling start-up warranting further adjustment of the fine. (U.S. v. M &D Masonry, Inc., 3/11/14)
    AILA Doc. No. 14032047.
  • BIA Remands Record Where Attorney Failed to Appear at Hearing (3/20/2014)
    Unpublished BIA decision finds IJ should have granted continuance or obtained explicit waiver of right to counsel after respondent’s attorney failed to appear. (Matter of Chavez, 1/30/14) Special thanks to IRAC.
    AILA Doc. No. 14032046.
  • BIA Remands for Hearing on Abandonment of LPR Status (3/20/2014)
    Unpublished BIA decision remands record for hearing on whether respondent intended to abandon LPR status by signing Form I-407 so he could obtain medical treatment abroad. (Matter of Morisset Boisvert, 1/29/14) Special thanks to IRAC.
    AILA Doc. No. 14032045.
  • BIA Upholds Suppression of Evidence Due to Prolonged Traffic Stop (3/19/2014)
    Unpublished BIA decision upholds suppression of evidence obtained after respondent was detained after accidentally turning into National Security Agency facility, says evidence of alienage from state database not sufficiently attenuated. (Matter of Lara, 1/28/14) Special thanks to IRAC.
    AILA Doc. No. 14031946.
  • BIA Says Descamps Supersedes Prior Decisions on Divisibility (3/19/2014)
    Unpublished BIA decision terminates proceedings after finding Florida’s theft statute not divisible and prior Board decisions on the modified categorical approach superseded by Descamps v. U.S. (Matter of Forvilus, 1/28/14) Special thanks to IRAC.
    AILA Doc. No. 14031945.
  • BIA Remands MTR Denial and States that IJ Must Make Clear and Complete Findings of Fact(536 KB - 3/18/2014)
    Unpublished BIA decision finding that the IJ did not explain the basis of his denial of respondent’s motion to reopen (MTR) except to deny for the “reasons stated in DHS opposition,” and stating that the IJ must make clear and complete findings of fact. Courtesy of Usman B. Ahmad.
    AILA Doc. No. 14031847.
  • BIA Holds AOS Is Admission for Purposes of Removal Due to Aggravated Felony Conviction(528 KB - 3/17/2014)
    The Board held that adjustment of status constitutes an admission for purposes of deciding removability under §237(a)(2)(A)(iii), and the crime of sodomy by force in violation of the Uniform Code of Military Justice is an aggravated felony. Matter of Chavez-Alvarez, 26 I&N Dec. 274 (BIA 2014)
    AILA Doc. No. 14031741.
  • BIA Remands Asylum Claim of Eritrean Fearing Military Service (3/14/2014)
    Unpublished BIA decision remands for further consideration of asylum claim due to evidence indicating that Eritrean military conscripts are subjected to involuntary servitude and evaders receive disproportionate punishment (Matter of D-G-, 1/28/14) Special thanks to IRAC.
    AILA Doc. No. 14031444.
  • BIA Reopens Sua Sponte for Consideration of Cancellation Application (3/14/2014)
    Unpublished BIA decision reopens proceedings sua sponte over DHS opposition to allow the respondent to submit an application for cancellation of removal. (Matter of Cruz, 1/27/14) Special thanks to IRAC.
    AILA Doc. No. 14031443.
  • BIA Affirms IJ’s Grant of Asylum for Petitioner from Uganda(1591 KB - 3/13/2014)
    Unpublished BIA decision affirming the IJ’s grant of asylum, finding that petitioner was not subject to the material support to terrorism bar because the alleged support provided to the Lord’s Resistance Army in Uganda was not material. Courtesy of National Immigration Justice Center.
    AILA Doc. No. 14031344.
  • BIA Reopens Sua Sponte to Permit Submission of Adjustment Application (3/11/2014)
    Unpublished BIA decision reopens proceedings sua sponte over DHS opposition and remands record to permit respondent to apply for adjustment of status. (Matter of Ibrahim, 1/24/14) Special thanks to IRAC.
    AILA Doc. No. 14031147.
  • BIA Finds Pennsylvania Reckless Endangerment is CIMT (3/11/2014)
    Unpublished BIA decision finds recklessly endangering another person under 18 Pa. Cons. Stat. 2705 is a categorical CIMT. (Matter of Vasquez-Lopez, 1/24/14) Special thanks to IRAC.
    AILA Doc. No. 14031144.
  • BIA Sustains Appeal, Finding No Evidence of Prior Marriage Fraud(699 KB - 3/10/2014)
    The BIA sustained the appeal and remanded to USCIS in order to process the visa petition, concluding that the record did not contain substantial and probative evidence of prior marriage fraud to support a finding pursuant to §204(c). Courtesy of Michael Friedberg.
    AILA Doc. No. 14031050.
  • BIA Affirms Removal of Respondent With Significant Medical Conditions (3/10/2014)
    Unpublished BIA decision affirms removal of respondent with rheumatic heart disease and neurological condition after DHS declines to exercise prosecutorial discretion. (Matter of Barros, 1/23/14) Special thanks to IRAC.
    AILA Doc. No. 14031045.
  • BIA Rescinds In Absentia Order Due to Ineffective Assistance of Counsel (3/10/2014)
    Unpublished BIA decision rescinds in absentia removal order where ineffective assistance of prior counsel contributed to respondent’s failure to appear. (Matter of Villatuya, 1/23/14) Special thanks to IRAC.
    AILA Doc. No. 14030740.
  • BIA Reverses Denial of Continuance for Adjudication of I-751 (3/7/2014)
    Unpublished BIA decision finds IJ should have continued proceedings to permit USCIS to adjudicate the respondent’s petition to remove conditions of residence (Form I-751). (Matter of Ruiz, 1/23/14) Special thanks to IRAC.
    AILA Doc. No. 14030742.
  • BIA Says IJs Must Independently Review Denial of N-600 (3/6/2014)
    Unpublished BIA decision remands record because IJ failed to make independent determination of respondent’s derivative citizenship claim after USCIS denied his Application for Certificate of Citizenship (Form N-600). (Matter of Moreno, 1/23/14) Special thanks to IRAC.
    AILA Doc. No. 14030655.
  • OCAHO Reduces Penalties for Small Home Healthcare Company(473 KB - 3/5/2014)
    OCAHO reduced fine to midrange of permissible penalties for incomplete Form I-9s, including blank section 2s and a lack of employer signature attesting that documents were examined to verify the employee’s identity and employment eligibility. (U.S. v. New Outlook Homecare LLC, 2/11/14).
    AILA Doc. No. 14030540.
  • BIA Vacates and Remands Asylum Denial for Russian Christian from Kazakhstan(816 KB - 3/4/2014)
    The BIA sustained the appeal, vacated and remanded, finding the respondent met his burden to establish that he suffered past persecution in Kazakhstan on account of his Christian religion and Russian nationality. Courtesy of Alexander Segal.
    AILA Doc. No. 14030446.
  • Board on Eligibility for §212(c) Relief In Light of Judulang(573 KB - 3/3/2014)
    The BIA held that, with a few exceptions, an LPR who has accrued 7 consecutive years of lawful unrelinquished domicile is eligible to apply for §212(c) relief if he is removable by virtue of a plea or conviction entered before 4/1/97. Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014)
    AILA Doc. No. 14030340.
  • BIA Says Amount of Restitution Not Always Reliable Way to Show Victim Loss (2/28/2014)
    Unpublished BIA decision dismissing appeal and upholding finding that federal computer fraud is an aggravated felony but says amount of restitution not always reliable measure of victim loss under INA 101(a)(43)(M)(i). (Matter of Rinquillo de Corrales, 1/22/14) Special thanks to IRAC.
    AILA Doc. No. 14022852.
  • BIA Remands Motion to Reopen Due to Insufficient IJ Decision (2/26/2014)
    Unpublished BIA decision remands record where IJ denied motion to reopen based on reasons stated in DHS opposition and without engaging in fact-finding or providing analysis. (Matter of Hazuri, 1/16/14) Special thanks to IRAC.
    AILA Doc. No. 14022647.
  • BIA Holds Reckless Endangerment Offense is Crime of Violence (2/26/2014)
    Unpublished BIA decision holds Kansas statute criminalizing the reckless causing of great bodily harm or disfigurement is a crime of violence under 18 USC 16(a) and 16(b). (Matter of Lacier, 1/15/14) Special thanks to IRAC.
    AILA Doc. No. 14022646.
  • BIA Permits Consideration of Evidence Excluded from Related Criminal Trial (2/25/2014)
    Unpublished BIA decision upholds denial of motion to suppress statements that were excluded from related criminal trial because respondent was not notified of his rights. (Matter of Alejo Reta, 1/15/14) Special thanks to IRAC.
    AILA Doc. No. 14022553.
  • BIA Permits Consideration of Evidence Excluded from Related Criminal Trial (2/25/2014)
    Unpublished BIA decision upholds denial of motion to suppress statements that were excluded from related criminal trial because respondent was not notified of his rights. (Matter of Alejo Reta, 1/15/14) Special thanks to IRAC.
    AILA Doc. No. 14022553.
  • BIA Remands to Consider Adjustment Application (2/25/2014)
    Unpublished BIA decision grants motion to remand upon finding evidence submitted on appeal sufficient to warrant consideration of adjustment application. (Matter of Suvarnasara, 1/14/14) Special thanks to IRAC
    AILA Doc. No. 14022551.
  • BIA Articulates Scope of Moncrieffe v. Holder (2/21/2014)
    Unpublished BIA decision says Supreme Court’s decision in Moncrieffe holds that a marijuana distribution offense that does not involve remuneration or more than a small amount it is not an aggravated felony “under the Act.” (Matter of Contreras, 1/14/14) Special thanks to IRAC.
    AILA Doc. No. 14022162.
  • BIA Finds Pastor Violated R-1 Status (2/21/2014)
    Unpublished BIA decision finds pastor to be in violation of his R-1 status because he was no longer employed by his sponsoring church. (Matter of Cameron, 1/13/14) Special thanks to IRAC
    AILA Doc. No. 14022161.
  • BIA Finds Conviction for Drug Trafficking Aggravated Felony Based on Conviction Records (2/20/2014)
    Unpublished BIA decision finds conviction for possession with intent to distribute under Iowa Code 124.401(1)(d) is drug trafficking aggravated felony based on quantity of drug and cash found at scene. (Matter of Iruegas Gomez, 1/13/14) Special thanks to IRAC
    AILA Doc. No. 14022046.
  • BIA Reopens Proceedings After Conviction Vacated for Sixth Amendment Violation (2/20/2014)
    Unpublished BIA decision reopens proceedings sua sponte after respondent’s conviction is vacated because criminal court failed to advise him of his Sixth Amendment right to assistance of counsel. (Matter of Carbonell, 1/13/14) Special thanks to IRAC.
    AILA Doc. No. 14022043.
  • OCAHO Final Order and Decision Declining to Reduce Penalties for Atlanta Restaurant(538 KB - 2/19/2014)
    OCAHO found that the employer provided no reason for reduction of penalties and that the government reached an appropriate result by imposing penalties at or near the maximum for violations of employer sanction provisions of the INA. (U.S. v. Symmetric Solutions, Inc., 2/6/14)
    AILA Doc. No. 14021947.
  • BIA Sustains Appeal for Cancellation of Removal Denial(253 KB - 2/18/2014)
    Unpublished BIA decision vacates and remands for further consideration of cancellation application, finding that possession of a firearm is not necessarily an aggravated felony and visa interview fraud does not necessarily determine ineligibility for cancellation. Courtesy of Nathan Christensen.
    AILA Doc. No. 14021847.
  • BIA Reopens Sua Sponte for Pursuit of Adjustment of Status (2/14/2014)
    Unpublished BIA decision reopens proceedings sua sponte over DHS opposition to permit respondent to seek adjustment of status based on an approved I-130. (Matter of Boye, 1/8/14) Special thanks to IRAC.
    AILA Doc. No. 14021453.
  • BIA Says Noncitizens Must Have Access to Visa or Entry Document in Proceedings (2/14/2014)
    Unpublished BIA decision remands record due to submission of evidence on appeal indicating respondent was admitted on agricultural visa, says respondents "shall have access to the alien's visa or other entry document" during proceedings. (Matter of Torres, 1/6/14) Special thanks to IRAC.
    AILA Doc. No. 14021450.
  • BIA Denies Reopening After Legalization of Same-Sex Marriage (2/14/2014)
    Unpublished BIA decision denies motion to reopen based on same-sex marriage to U.S. citizen because marriage certificate and pending I-130 were not sufficient to establish bona fides. (Matter of Lopez, 1/3/14) Special thanks to IRAC.
    AILA Doc. No. 14021449.
  • BIA Sustains Asylum Appeal, Finds Coerced FGM Is Persecution(676 KB - 2/12/2014)
    Unpublished BIA decision sustaining appeal, finding that women who violate gender-specific social norms constitute a particular social group and FGM was inflicted as a result of coercion sufficient to amount to persecution within the meaning of INA 101(a)(42). Courtesy of Aleksander Milch.
    AILA Doc. No. 14021250.
  • BIA Holds Former Gang Members Who Renounce Gang Membership Are Not a Particular Social Group(555 KB - 2/7/2014)
    The BIA clarified the “social visibility” element required to establish a particular social group (PSG), renamed the element “social distinction,” and held that former members of an El Salvadoran gang who renounced their membership is not a PSG. Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014).
    AILA Doc. No. 14020745.
  • BIA Renames “Social Visibility” Element in Asylum Cases as “Social Distinction,” Clarifies Meaning(588 KB - 2/7/2014)
    The BIA held the “social visibility” element required to establish a particular social group (PSG) doesn’t mean a literal or ocular visibility, renamed the element “social distinction,” and clarified the elements required to establish a PSG. Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014).
    AILA Doc. No. 14020744.
  • BIA Grants Motion to Reconsider Based on Error Regarding Eligibility for U Status (2/7/2014)
    Unpublished BIA decision grants motion to reconsider after recognizing prior erroneous determination that respondent was not prima facie eligible for U status. (Matter of Gutierrez, 12/31/13) Special thanks to IRAC.
    AILA Doc. No. 14020743.
  • BIA Remands to Consider Eligibility for DACA or Provisional Waiver (2/7/2014)
    Unpublished BIA decision remands for adjudication of motion to reopen based on desire to apply for Deferred Action for Childhood Arrivals or provisional unlawful presence waiver (Form I-601A). (Matter of Avalos-Avalos, 12/31/13) Special thanks to IRAC.
    AILA Doc. No. 14020742.
  • BIA Denies §245(i) Adjustment Application Due to Improper Labor Certification Filing (2/5/2014)
    Unpublished BIA decision upholds denial of adjustment application under INA 245(i) because the underlying labor certification was filed in the wrong state. (Matter of Anwar, 12/30/13) Special thanks to IRAC.
    AILA Doc. No. 14020544.
  • BIA Reverses IJ’s Discretionary Denial of Asylum in Somali FGM Case(538 KB - 2/4/2014)
    Unpublished BIA decision sustains the appeal, reverses the IJ’s discretionary denial of asylum, and concludes respondent met her burden of proof for asylum based on FGM and merits relief as a matter of discretion. Courtesy of Kimberly Hunter.
    AILA Doc. No. 14020450.
  • BIA Remands For Evidentiary Hearing Regarding Failure to Receive Hearing Notice (2/4/2014)
    Unpublished BIA decision remands for evidentiary hearing concerning non-receipt of hearing notice where Notice To Appear and in absentia removal order were returned as undeliverable. (Matter of Szypulski, 12/30/13) Special thanks to IRAC
    AILA Doc. No. 14020446.
  • BIA Upholds “Reason to Believe” Finding Against Suspected Drug Dealer (2/4/2014)
    Unpublished BIA decision finds “reason to believe” in INA 212(a)(2)(C) is akin to “probable cause,” and upholds the finding of inadmissibility based on drug-related arrest and invocation of Fifth Amendment. (Matter of Isabel Diaz, 12/30/13) Special thanks to IRAC
    AILA Doc. No. 14020445.
  • OSC Settlement Resolving E-Verify Citizenship Status Discrimination(1788 KB - 2/3/2014)
    OSC settlement with SD Staffing LLC after OSC investigation confirmed that through SD Staffing’s use of E-Verify, it requested unnecessary documents from work-authorized non-U.S. citizens, but not from similarly-situated U.S. citizens.
    AILA Doc. No. 14020301.
  • OSC Settlement Over Firefighter Hiring Discrimination in Waterloo, Iowa(655 KB - 2/3/2014)
    OSC settlement with the city of Waterloo, Iowa resolving allegations that the city violated the anti-discrimination provision of the INA filed by a work-authorized, lawful permanent resident alleging that the city refused to consider him for a firefighter position because he was not a U.S. citizen.
    AILA Doc. No. 14020300.
  • BIA Finds Retraction of False Citizenship Claim Not Made Voluntarily and Without Delay (1/31/2014)
    Unpublished BIA decision finds retraction of false claim to U.S. citizenship after presentation of evidence of French citizenship was not made “voluntarily and without delay.” (Matter of Martin, 12/27/13) Special thanks to IRAC.
    AILA Doc. No. 14013143.
  • BIA Finds Hand-Written IJ Decision Not Sufficient for Appellate Review (1/31/2014)
    Unpublished BIA decision remands for further consideration of motion to reopen because IJ’s hand-written decision stating that the “court courts with the position of DHS” was not sufficient for meaningful appellate review. (Matter of Ibrahim, 12/26/13) Special thanks to IRAC.
    AILA Doc. No. 14013140.
  • BIA Considers Appeal on Merits After Removal of Respondent (1/30/2014)
    Unpublished BIA decision finds that respondent’s removal while the appeal of the denial of his motion to reopening was pending did not represent a “departure” under 8 CFR 1003.4 constituting a withdrawal of the appeal. (Matter of Amparo Abreu, 12/24/13) Special thanks to IRAC.
    AILA Doc. No. 14013049.
  • BIA Finds Vacatur of Criminal Conviction May Warrant Reopening of In Absentia Order (1/30/2014)
    Unpublished BIA decisions remands for further consideration of motion to reopen challenging entry of in absentia order following vacatur of underlying criminal conviction. (Matter of Eustate, 12/20/13) Special thanks to IRAC
    AILA Doc. No. 14013048.
  • BIA Finds Car Trouble May Justify Failure to Appear (1/29/2014)
    Unpublished BIA decision vacates denial of motion to reopen order or removal issued in absentia where IJ applied per se rule against car trouble constituting exceptional circumstances justifying a failure to appear. (Matter of Haro Pena, 12/17/13) Special thanks to IRAC.
    AILA Doc. No. 14012906.
  • BIA Reinstates Proceedings for Former LPR Wishing to Challenge Rescission (1/29/2014)
    Unpublished BIA decision vacates order granting DHS motion to terminate where respondent wishes to challenge the rescission of his LPR status by USCIS. (Matter of Malik, 12/17/13) Special thanks to IRAC.
    AILA Doc. No. 14012905.
  • BIA Finds Residence Cannot Be Imputed to Establish Eligibility for TPS (1/28/2014)
    Unpublished BIA decision upholds denial of TPS application where respondent sought to benefit from imputation of parent’s presence and residence in U.S. (Matter of Lara, 12/16/13) Special thanks to IRAC.
    AILA Doc. No. 14012841.
  • BIA Holds Deadline Under 245(i) Not Subject to Equitable Tolling (1/28/2014)
    Unpublished BIA decision holds that the April 30, 2001, deadline to establish eligibility under Section 245(i) IS not subject to equitable tolling due to ineffective assistance of counsel. (Matter of Prasad, 12/13/13) Special thanks to IRAC.
    AILA Doc. No. 14012840.
  • BIA Remands Denial of Continuance Based on Analysis of 212(h) Waiver (1/27/2014)
    Unpublished BIA decision remands for further consideration of continuance where IJ found respondent was unlikely to qualify for 212(h) waiver due to robbery conviction. (Matter of Lopez, 12/13/13) Special thanks to IRAC
    AILA Doc. No. 14012753.
  • BIA Remands for Consideration of Unadjudicated Motions to Reopen (1/27/2014)
    Unpublished BIA decision remands for consideration of motions to reopen based on changed country conditions in Russia that the IJ failed to adjudicate (Matter of Drabovskiy, 12/12/13) Special thanks to IRAC.
    AILA Doc. No. 14012749.
  • OCAHO Reduces Fines for Small Restaurant From to $265K to $88K(5938 KB - 1/27/2014)
    OCAHO reduced fine where ICE alleges that the company had 293 employment verification violations. The fine was reduced in part because “a dismal rate of compliance… cannot alone be used to increase a penalty based on the good faith criterion.” (U.S. v. Two for Seven, LLC, 1/15/14)
    AILA Doc. No. 14012746.
  • BIA Upholds Decision Finding False Claim to Citizenship (1/24/2014)
    Unpublished BIA decision finds respondent made false claim to U.S. citizenship by watching a third party complete a Form I-9 using a U.S. birth certificate issued in same name used on false state identification card. (Matter of Castillo, 12/11/13) Special thanks to IRAC
    AILA Doc. No. 14012449.
  • BIA Upholds Denial of Continuance for Post-Conviction Relief (1/24/2014)
    Unpublished BIA decision upholds denial of continuance because respondent did not present evidence that motion for post-conviction relief would be adjudicated in “foreseeable future.” (Matter of Rosel, 12/9/13) Special thanks to IRAC.
    AILA Doc. No. 14012445.
  • BIA Reverses Denial of Continuance For Respondent Not Advised to Bring Witnesses to Next Hearing (1/24/2014)
    Unpublished BIA decision reverses denial of request for continuance where IJ who presided over previous hearing did not instruct respondent to bring witnesses to testify in support of his adjustment application. (Matter of Aguilar-Morales, 12/6/13) Special thanks to IRAC.
    AILA Doc. No. 14012444.
  • BIA Holds Claiming “Citizen or National” on Form I-9 Not Sufficient for DHS to Establish False Claim to Citizenship (1/23/2014)
    Unpublished BIA decision finding DHS failed to establish removability against respondent who checked “citizen or national” box on I-9, dismisses appeal as respondent did not establish she was “clearly and beyond doubt” not inadmissible. (Matter of Nyabwari, 12/5/13) Special thanks to IRAC.
    AILA Doc. No. 14012349.
  • BIA Finds Records Downloaded From PACER Properly Authenticated (1/23/2014)
    Unpublished BIA decision finds DHS certification that criminal records were downloaded from PACER sufficient for purposes of authentication. (Matter of Aviles, 12/5/13) Special thanks to IRAC.
    AILA Doc. No. 14012345.
  • BIA Finds Texas Conviction Not Drug Trafficking Aggravated Felony (1/23/2014)
    Unpublished BIA decision finds conviction for manufacture/delivery of controlled substance under Texas Health and Safety Code 481.112(d) not a drug trafficking aggravated felony. (Matter of Quiroga-Briones, 12/3/13) Special thanks to IRAC
    AILA Doc. No. 14012342.
  • BIA Remands VAWA Cancellation Case, Distinguishes Matter of A-M-(1331 KB - 1/21/2014)
    In an unpublished decision, the BIA disagreed with the IJ’s conclusion that respondent was ineligible for relief, noting that although she ended her abusive relationship in 2001, she has neither received prior VAWA benefits nor does she have any other available relief. Courtesy of Kelli Stump.
    AILA Doc. No. 14012144.
  • BIA Upholds Denial of Suppression Motion Challenging Questioning at Local Courthouse (1/17/2014)
    Unpublished BIA decision upholds denial of motion to suppress where ICE officers questioned respondent at local courthouse because he accompanied friend with outstanding removal order. (Matter of Nolasco, 11/29/13) Special thanks to IRAC
    AILA Doc. No. 14011759.
  • BIA Holds Robbery Victim Did Not Provide Material Support to Guatemalan Guerrillas (1/17/2014)
    Unpublished BIA decision upholds grant of cancellation under NACARA upon finding respondent did not provide “material support” to guerillas who stole food from his store at gunpoint. (Matter of Gonzales, 11/26/13) Special thanks to IRAC
    AILA Doc. No. 14011758.
  • BIA Finds Jordanian Wishing to Sell Land to Israeli Government Eligible for Asylum(1384 KB - 1/17/2014)
    Unpublished BIA decision sustaining the appeal for the asylum denial, finding that the respondent established a fear of future persecution by the Palestinian Authority and Hamas regarding efforts to sell land to the Israeli government. Courtesy of Div Gopal.
    AILA Doc. No. 14011754.
  • BIA Finds Respondent Improperly Classified as Arriving Alien and Denied Opportunity to Seek Adjustment (1/16/2014)
    Unpublished BIA decision finds respondent improperly classified as “arriving alien” because he was paroled prior to April 1, 1997, and eligible to renew adjustment application in removal proceedings after denial by USCIS. (Matter of Nguyen, 11/26/13) Special thanks to IRAC
    AILA Doc. No. 14011643.
  • DHS Withdraws Appeal of Decision Finding Georgia Traffic Offenses Not Misdemeanors for Immigration Purposes (1/16/2014)
    Unpublished BIA decision returns record after DHS withdraws appeal of ruling holding Georgia traffic offenses are not misdemeanors for federal immigration purposes despite being misdemeanors under state law. (Matter of Hernandez, 11/25/13) Special thanks to IRAC.
    AILA Doc. No. 14011642.
  • BIA Rescinds In Absentia Order Where DHS Failed to Serve Appeal Notice (1/16/2014)
    Unpublished BIA decisions rescinds in absentia order due to DHS failure to serve copy of appeal notice when successfully challenging IJ decision terminating proceedings against respondent. (Matter of Guzman, 11/25/13) Special thanks to IRAC.
    AILA Doc. No. 14011641.
  • BIA Remands After 90-Day Filing Window Due to Totality of Circumstances(633 KB - 1/15/2014)
    Unpublished BIA decision remands even though respondent’s motion was untimely filed, as respondent received inaccurate information from DHS officials regarding how to proceed and the new counsel obtained conviction records not previously in the record. Courtesy of Haitham Ballout.
    AILA Doc. No. 14011552.
  • BIA Finds Florida Possession of Marijuana With Intent to Sell Not Aggravated Felony (1/15/2014)
    Unpublished BIA decision remands to consider cancellation application in light of Eleventh Circuit Donawa decision finding Florida possession of marijuana with intent to sell not a categorical drug trafficking aggravated felony. (Matter of Drummond, 11/22/13) Special thanks to IRAC.
    AILA Doc. No. 14011550.
  • BIA Finds Alaska Third Degree Theft Not CIMT (1/15/2014)
    Unpublished BIA decision upholds termination of proceedings upon finding Alaska third degree theft not categorical CIMT and nothing in record of conviction established intent to permanent deprive victim of property. (Matter of Casilla Nunez, 11/20/13) Special thanks to IRAC.
    AILA Doc. No. 14011547.
  • BIA Reopens and Remands Case Involving Maryland Second Degree Assault (1/15/2014)
    Unpublished BIA decision remands proceedings to consider whether Maryland second degree assault is a crime of violence aggravated felony in light of Supreme Court decision in Descamps and Fourth Circuit decision in Karimi. (Matter of Diaz, 11/19/13) Special thanks to IRAC.
    AILA Doc. No. 14011542.
  • BIA Terminates Proceedings After Conviction Vacated for State Misconduct (1/13/2014)
    Unpublished BIA decision reopens and terminates proceedings after respondent was permitted to withdraw guilty plea because state chemist who tested controlled substances was accused of misconduct. (Matter of Ventura-Arias, 11/18/13) Special thanks to IRAC.
    AILA Doc. No. 14011350.
  • BIA Remands For Failure to Consider Argument Regarding Florida Assault and Grant Theft (1/13/2014)
    Unpublished BIA decision grants motion to reconsider and remands because both the IJ and Board failed to consider arguments that Florida assault and grant theft are not CIMTs. (Matter of Rivero, 11/18/13) Special thanks to IRAC.
    AILA Doc. No. 14011349.
  • BIA Finds Single DUI Conviction Does Not Outweigh Positive Equities (1/13/2014)
    Unpublished BIA decision reconsiders sua sponte over DHS opposition and finds adjustment applicant’s positive equities were not outweighed by a single DUI conviction. (Matter of Vasquez, 11/14/13) Special thanks to IRAC.
    AILA Doc. No. 14011348.
  • BIA Remands to Consider Eligibility for Provisional Waiver Despite Criminal Convictions (1/10/2014)
    Unpublished BIA decision vacates denial of voluntary departure and remands to consider whether respondent with theft and DUI convictions is eligible for provisional unlawful presence waiver (Form I-601A). (Matter of Velasco, 11/14/13) Special thanks to IRAC.
    AILA Doc. No. 14011046.
  • BIA Finds North Carolina Offense Relates to Controlled Substance (1/10/2014)
    Unpublished BIA decision finds maintaining a vehicle/dwelling/place for marijuana under N.C.G.S. 90-108(a)(7) relates to a controlled substance under INA 237(a)(2)(B)(i). (Matter of Santos, 11/13/13) Special thanks to IRAC.
    AILA Doc. No. 14011045.
  • BIA Finds Ineffective Assistance Due to Failure to Submit Adjustment Application (1/10/2014)
    Unpublished BIA decision finds attorney’s admitted failure to file adjustment application by court-imposed deadline made ineffective assistance plain on face of the record. (Matter of Cisneros, 11/13/13) Special thanks to IRAC.
    AILA Doc. No. 14011044.
  • BIA Requires DHS To Disclose Evidence of Admission (1/9/2014)
    Unpublished BIA decision reverses removal order and holds that DHS must disclose any documents in its possession under INA 240(c)(2) regarding respondent’s asserted admission. (Matter of Monjazar-Fernandez, 11/13/13) Special thanks to IRAC.
    AILA Doc. No. 14010942.
  • BIA Remands to Consider Whether New York Second Degree Forgery is CIMT (1/8/2014)
    Unpublished BIA decision remands for further proceedings on whether second degree forgery under NYPL 170.10 is a categorical CIMT. (Matter of Wong, 11/12/13) Special thanks to IRAC.
    AILA Doc. No. 14010846.
  • BIA Remands Finding That LPR Abandoned Status Due to Ineffective Assistance of Counsel (1/8/2014)
    Unpublished BIA decision remands for further consideration of whether respondent abandoned LPR status where the prior attorney failed to submit evidence of ties to United States (Matter of Ye, 11/8/13) Special thanks to IRAC.
    AILA Doc. No. 14010845.
  • BIA Holds Pending Application for H-1B Extension Does Not Confer "Lawful Status" Under INA 245(k) (1/7/2014)
    Unpublished BIA decision upholds denial of adjustment application and finds the filing of an application to extend nonimmigrant status does not confer “lawful status” under Section 245(k) of the INA. (Matter of Trupcevic, 11/7/13) Special thanks to IRAC.
    AILA Doc. No. 14010747.
  • BIA Finds IJ Failed to Advise Respondent of Eligibility for Cancellation (1/7/2014)
    Unpublished BIA decision remands record because IJ neglected to advise respondent of potential eligibility for non-LPR cancellation under 8 CFR 1240.11(a)(2). (Matter of Leon, 11/7/13) Special thanks to IRAC.
    AILA Doc. No. 14010744.
  • BIA Remands Case of Unrepresented Respondent With Limited English Skills (1/3/2014)
    Unpublished BIA decision remands to allow unrepresented respondent who was unfamiliar with English to apply for relief from removal. (Matter of Gomez-Amaya, 11/5/13) Special thanks to IRAC.
    AILA Doc. No. 14010345.