BIA Updates Precedent Decisions Chart
Memorandum
| Subject | Date | |
| Board Precedents and Related Court Decisions | August 29, 2002 | |
| To | From | |
| Board Members and All Legal Staff | Molly Kendall Clark | |
|
Court Decisions Relating to Board Precedents | ||
|
Board Cite |
Board Holding |
Court Response |
| J-, 2 I&N Dec. 285 (1945) | for deportability based on admitting acts which constitute the essential elements of a crime, conduct must be a crime, alien must be advised in clear manner of the essential elements, alien must admit the conduct, and admission must be voluntary | Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002) - cited with approval |
| K-, 7 I&N Dec. 594 (1957) | for deportability based on admitting acts which constitute the essential elements of a crime, alien must have been furnished an understandable definition of the crime and all its elements | Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002) - cited with approval |
| MacCaud, 14 I&N Dec. 429 (1973) | Passport is evidence of citizenship, but not conclusive evidence | Palavra v. INS, 287 F.3d 690 (8th Cir. 2002) - cites with approval |
| Medina, 15 I&N Dec. 611 (1976) | Conviction for aggravated assault with deadly weapon is CIMT | Yousefi v. INS, 260 F.3d 318 (4th Cir. 2001) - agrees with, and finds assault with dangerous weapon a CIMT |
| Patel, 16 I&N Dec. 600 (1978) | Board remand is effective for stated purpose and all other matters IJ deems appropriate unless Board qualifies or limits the remand | Johnson v. Ashcroft, 286 F.3d 696 (3d Cir. 2002) - agrees with and interprets to require that for remand to be limited, Board must specifically retain jurisdiction and limit remand to specific purpose |
| Da Lomba, 16 I&N Dec. 616 (1978) | 241(f) can forgive deportability under section 241(c), a charge grounded squarely on 212(a)(19) fraud charge | Virk v. INS, 295 F.3d 1055 (9th Cir. 2002) - cites with approval |
| Kaneda, 16 I&N Dec. 677 (1979) | state court motive of defeating deportability is a permissible purpose for first offender statute | Sandoval v. INS, 240 F.3d 577 (7th Cir. 2001) - cites with approval |
| Flores, 17 I&N Dec. 225 (1980) | forging immigration documents is a crime involving moral turpitude | Omagah v. Ashcroft, 288 F.3d 254 (5th Cir. 2002) - finds decision reasonable |
| Garcia-Flores, 17 I&N Dec. 325 (1980) | regulatory violation by INS results in exclusion of evidence only where reg. benefits alien and violation resulted in prejudice to alien | Martinez-Camargo v. INS, 282 F.3d 487 (7th Cir. 2002)- upholds |
| Ramirez-Sanchez, 17 I&N Dec. 503 (1980) | When name on INS records is same as respondent's , may infer they relate to him, absent a denial by the respondent | Guerrero-Perez v. INS, 242 F.3d 727 (7th Cir. 2001) - cites generally with approval |
| Frentescu, 18 I&N Dec. 244 (1982) | sets forth criteria for determining whether crime is "particularly serious" | Yousefi v. INS, 260 F.3d 318 (4th Cir. 2001) - upholds the criteria, but finds not applied in this case |
| Fedorenko, 19 I&N Dec. 57 (1984) | Board's function is to review, not create, the record, and it is not required to receive new evidence on appeal | Ramirez-Alejandre v. Ashcroft, 276 F.3d 517 (9th Cir. 2002) - cites with approval |
| Acosta, 19 I&N Dec. 211 (1985) | Asylum applicant must show country-wide persecution | Manzoor v. INS, 254 F.3d 342 (1st Cir. 2001) - cautions that burden is on INS, not alien, to show no nation-wide threat, if past persecution has been shown |
| Valencia, 19 I&N Dec. 354 (1986) | Summary dismissal ok where no brief and only generalized statement on Notice of Appeal | Vargas-Garcia v. INS, 287 F.3d 882 (9th Cir. 2002) - does not reject, but criticizes the rigid requirements, saying the appeal form does not adequately warn of possible S/D |
| Torres, 19 I&N Dec. 371 (1986) | aliens in exclusion are not eligible for suspension | Sherifi v. INS, 260 F.3d 737 (7th Cir. 2001) - upholds |
| Balibundi, 19 I&N Dec. 606 (1988) | will not consider application for relief on the merits where alien fails to appear | Kaur v. INS, 237 F.3d 1098 (9th Cir. 2001) - distinguished - here, alien appeared but declined to testify without chance to review evidence |
| Lozada, 19 I&N Dec. 637 (1988), affirmed (see cite) | imposes several requirements for making a claim of ineffective assistance of counsel | 1. Lozada v. INS,* 857 F.2d 10
(1st Cir. 1988) - affirmed
2. Castillo-Perez v. INS, 212 F.3d 518 (9th Cir. 2000) - Lozada reqs. "not sacrosanct" - substantial compliance may be sufficient 3. Lara v. Trominski, 216 F.3d 487 (5th Cir. 2000) - upholds requirements 4. Hernandez v. Reno, 238 F.3d 50 (1st Cir. 2001) - upholds requirements 5. Saakian v. INS, 252 F.3d 21(1st Cir. 2001) - agrees with 9th Cir. that reqs. may not be "arbitrarily" applied 6. Stroe v. INS, 256 F.3d 498 (7th Cir. 2001) - upholds, and rejects any exceptions to Lozada rules - also questions whether there is constitutional right to counsel in deportation proceedings 7. Lu v. Ashcroft, 259 F.3d 127 (3d Cir. 2001) - upholds requirements, BUT failure to file bar complaint not fatal if reas. explanation 8. Rodriguez-Lariz v. INS, 282 F.3d 1218 (9th Cir. 2002) - Lozada reqs. need not always be "rigidly applied." NOTE: There are many other older cases upholding Lozada, but 9th Circuit is carving out exceptions recently. |
| Grijalva, 19 I&N Dec. 713 (BIA 1988) | Hearsay is admissible in deportation proceedings unless fundamentally unfair | Velasquez-Valencia v. INS, 244 F.3d 48 (1st Cir. 2001) - cited with approval |
| Chen, 20 I&N Dec. 16 (1989) | Alien who has suffered past persecution may be granted asylum for humanitarian reasons even without well-founded fear of future persecution | Lal v. INS, 255 F.3d 998 (9th Cir. 2001) - upholds reasoning, but finds Board did not properly apply decision in this case - finds Chen does not require ongoing disability |
| Anselmo, 20 I&N Dec. 25 (1989) | Board must follow circuit court precedent in cases arising in the circuit | Abdulai v. INS, 239 F.3d 542 (3d Cir. 2001) - generally cited |
| Soleimani, 20 I&N Dec. 99 (1989) | A. alien not firmly resettled if presence in the U.S. is a
consequence of his flight in search of refuge
B. Foreign law is a matter to be proven by the party seeking to rely upon it |
A. Ali v. Reno, 237 F.3d 591(6th Cir.
2001) - generally cited, with approval
B. Abdille v.Ashcroft, 242 F.3d 477 (3d Cir. 2001) - followed (on issue of burden of proof in proving foreign law) |
| Barrett, 20 I&N Dec. 171 (1990) | state drug conviction can constitute "drug trafficking crime" under 18 USC § 924(c)(2) and thus be an ag fel if it would have been punishable under federal law as a felony | Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002) - accepts analysis (see also Davis, 20 I&N Dec. 536, below) |
| Sanchez, 20 I&N Dec. 223 (1990) | Proceedings begin when charging document is filed with Immigration Judge | Armendariz-Montoya v. Sonchik, 291 F.3d 1116 (9th Cir. 2002) - cites with approval |
| Cerna, 20 I&N Dec. 399 (1991) | motions to reopen and motions to reconsider are fundamentally different with different requirements | Zhao v. U.S. Dept. of Justice, 265 F.3d 83 (2d Cir. 2001) - cites with approval |
| D-L- & A-M-, 20 I&N Dec. 409 (1991) | Aliens who lived an worked for 6 years in a third country as lawful temporary residents with option to become permanent residents were firmly resettled there. | Abdille v. Ashcroft, 242 F.3d 477 (3d Cir. 2001) - cites with approval |
| Coelho, 20 I&N Dec. 464 (1992) | A. where motion to remand really in nature of motion to
reopen, it must comply with motion to reopen requirements
B. MTR should not be granted unless new evidence could not have been discovered earlier by "due diligence" |
A. Wang v. Ashcroft, 260 F.3d 448 (5th
Cir. 2001) - upholds
B. Krougliak v. INS, 289 F.3d 457 (7th Cir. 2002) - cites with approval |
| Davis, 20 I&N Dec. 536 (1992); modified Yanez, 23 I&N 390 (2002) | state drug conviction can be ag fel if analogous to felony under federal law and it contains a "trafficking element" | Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002) - accepts analysis (see also Barrett, 20 I&N Dec. 171, above) |
| Serna, 20 I&N Dec. 579 (1992) | possession of altered immigration documents not a CIMT unless there is intent to use them unlawfully | Omagah v. Ashcroft, 288 F.3d 254 (5th Cir. 2002) - finds decision reasonable |
| Rainford, 20 I&N Dec. 598 (1992) | firearms conviction does not preclude finding of admissibility in conjunction with application for adjustment | Drax v. Reno, 178 F. Supp. 2d 296 (E.D.N.Y. 2001)- Generally cited and applied |
| R-, 20 I&N Dec. 621 (1992) | Asylum applicant must show country-wide persecution | Manzoor v. INS, 254 F.3d 342 (1st Cir. 2001) - cautions that burden is on INS, not alien, to show no countrywide threat, if past persecution has been shown |
| Gabryelsky, 20 I&N Dec. 750 (1993) | 212(c) may be available in conjunction with adjustment for aliens deportable for drug and weapons offenses | 1. U.S. v. Gonzalez-Roque, 165 F.Supp. 2d 577
(S.D.N.Y. 2001) - Generally cited and applied
2. Drax v. Reno, 178 F. Supp. 2d 296 (E.D.N.Y. 2001)- Generally cited and applied |
| Sosa-Hernandez, 20 I&N Dec. 762 (1993) | 241(f) waives not only alien's deportability, but the underlying fraud, and alien is considered lawfully admitted for permanent residence | Virk v. INS, 295 F.3d 1055 (9th Cir. 2002) - cites with approval |
| Alcantar, 20 I&N Dec. 801 (1994) | Conviction for involuntary manslaughter under Illinois law is "crime of violence" under 8USC §16, and thus an ag fel. | 1. Park v. INS, 252 3d 1018 (9th Cir.
2001) - reaches same conclusion , in case involving California
involuntary manslaughter statute (mentions Alcantar in fn)
2. Omar v. INS, 298 F.3d 710 (8th Cir. 2002) - cites with approval in finding that criminal vehicular homicide under Minn. law is a crime of violence |
| Toboso-Alfonso, 20 I&N Dec. 819 (1990) | sexual orientation can form basis for asylum application | Hernaez v. INS, 244 F.3d 752 (9th Cir. 2001) - cited with approval |
| B-, 21 I&N Dec. 66 (1995) (ID 3251) | asylum granted due to compelling circumstances despite no well-founded fear | Lal v. INS, 255 F.3d 998 (9th Cir. 2001) - cites with approval, but finds Board did not properly apply decision in this case - finds grant of asylum under Chen does not require ongoing disability |
| L-G-, 21 I&N Dec. 89 (1995) (ID 3254), modified Yanez, 23 I&N 390 (2002) | For immigration purposes, a state drug offense qualifies as a "drug trafficking crime," under 18 USC 924(c),and thus as an ag fel, only if punishable as a felony under federal drug laws. | 1. U.S. v. Hernandez-Avalos, 251F.3d 505
(5th Cir. 2001) - rejects Board interpretation of §
924(c) as "plainly incorrect."
2. Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002) - accepts analysis (see also Barrett, 20 I&N Dec. 171, and Davis, 20 I&N Dec. 536, above) |
| Mendez-Moralez, 21 I&N Dec. 296 (1996) | Discusses factors to consider in adjudicating application for discretionary relief under section 212(h) | Virk v. INS, 295 F.3d 1055 (9th Cir. 2002)
- cites with approval in 241(f) case
|
| Pichardo, 21 I&N Dec. 330 (1996) (ID 3275) | Board won't look behind record of conviction to factual circumstances of crime | Sui v. INS, 250 F.3d 105 (2d Cir. 2001) - cites with approval (in footnote) |
| H-, 21 I&N Dec. 337(1996) (ID 3276) | asylum may be granted due to compelling circumstances despite no well-founded fear | Lal v. INS, 255 F.3d 998 (9th Cir. 2001) - cites with approval, but finds Board did not properly apply decision in this case - finds grant of asylum under Chen does not require ongoing disability |
| Grijalva-Barrera, 21 I&N 472 (1996) (ID 3284) | Ineffective assistance of counsel may be "exceptional circumstance" excusing failure to appear | Saakian v. INS, 252 F.3d 21(1st Cir. 2001) - cites with approval |
| S-P-, 21 I&N Dec. 486 (1996) (ID 3287) | Asylum applicant must show reasonable person would fear persecution OAO, but motivation for persecution need not be shown to a certainty. | Velasquez-Valencia v. INS, 244 F.3d 48(1st Cir. 2001) - cited with approval |
| Shaar, 21 I&N Dec. 541 (1996) (ID 3290), affirmed (see cite) | filing MTR during V D time not an "exceptional circumstance" | 1. Shaar v. INS*, 141 F.3d 953
(9th 1998)- affirmed
2. Mardones v. McElroy, 197 F.3d 619 (2d Cir. 1999) - cited with approval |
| Rivera-Claros, 21 I&N Dec. 599 (1996) (ID 3296) | MTR in absentia hearing based on ineffective assistance claim denied where Lozada requirements not satisfied | 1. Lara v. Trominski, 216 F.3d 487 (5th
Cir. 2000) - cited with approval
2. Saakian v. INS, 252 F.3d 21(1st Cir. 2001) - cites with approval, and distinguishes b/c Lozada satisfied on appeal to Board 3. Lu v. Ashcroft, 259 F.3d 127 (3d Cir. 2001) - cautions that failure to file bar complaint is not always fatal to ineffective assistance claim |
| S-M-J-, 21 I&N Dec. 722 (1997) (ID 3303) | even where alien is credible, may need corroborating evidence in asylum case where reasonable to expect, or explanation for absence of such evid. | 1. Ladha v. INS, 215 F.3d 889 (9th Cir.
2000) corroboration req. "disapproved" if credible
testimony
2. Diallo v. INS, 232 F.3d 279 (2d Cir. 2000) - upholds corrob. req. (though remands on facts) 3. Kataria v. INS, 232 F.3d 1107 (9th Cir. 2000) - reiterates its disapproval of S-M-J- 4. Abdulai v. INS, 239 F.3d 542 (3d Cir. 2001) - corrob. req. is not per se invalid (but remands on facts) |
| C-A-L-, 21 I&N Dec. 754 (1997)(ID 3305) | need to show country-wide fear of persecution | 1. Abdille v.Ashcroft, 242 F.3d 477 (3d Cir. 2001) -
follows
2. Manzoor v. INS, 254 F.3d 342 (1st Cir. 2001) - cautions that burden is on INS, not alien, to show no country-wide threat, if past persecution has been shown |
| T-M-B-, 21 I&N Dec. 775 (1997) (ID 3307), reversed (see cite) | A. criminal extortion is not persecution "on account of"
political opinion where reasonable to conclude those who did the harm were not
motivated by the applicant's political beliefs
B. DOS Opinions owed considerable deference, absent contradictory evidence. |
A. Borja v. INS*, 175 F.3d 732
(9th Cir. 1999) - reversed; finds motivation was in
part political
B. Manzoor v. INS, 254 F.3d 342 (1st Cir. 2001) - appears to reject - says DOS opinions not binding |
| Fuentes-Campos, 21 I&N Dec. 905 (1997) (ID 3318) | aliens in exclusion still 212(c) eligible post-AEDPA, even though those in deportation are not | 1. U.S. v. Estrada-Torres, , 179 F. 3d 776
(9th Cir. 1999) - rejects reasoning of
Fuentes-Campos; "it makes no sense" to bar 212(c) in dep. proc., but
not in excl. - finds the relief eliminated for both (post- AEDPA OSC and
conviction)
2. De Sousa v. Reno, 190 F.3d 175 (3d Cir. 1999) - "assumes, without deciding," that decision is correct because both parties agreed 3. Turkhan v. Perryman, 188 F.3d 814 (7th Cir. 1999) - upholds - no equal protection violation 4. Jurado-Gutierrez v. Greene, 190 F.3d 1135 (10th Cir. 1999) - upholds - no equal protection violation 5. Almon v. Reno, 192 F.3d 28 (1st Cir. 1999) - upholds - no equal protection violation 6. Domond v. INS, 244 F.3d 81 (2d Cir. 2001) - reaches same conclusion (no equal protection violation), but does not cite Board case. |
| C-Y-Z-, 21 I&N Dec. 915 (1997) (ID 3319) | alien whose spouse was forced to undergo abortion or sterilization may qualify as refugee | Zhao v. U.S. Dept. of Justice, 265 F.3d 83 (2d Cir. 2001) - accepts, but finds precedent not properly applied here |
| J-J-, 21 I&N Dec. 976 (1997) (ID 3323) | A. Board will reopen sua sponte despite filing defects in
motion only where there is an exceptional situation, not to cure filing defects
or circumvent motions restrictions
B. Appeal or motion is deemed filed when received by the Board |
A. 1. Socop-Gonzalez v. INS, 272 F.3d 1176
(9th Cir. 2001) (en banc) - cited generally with
approval
Also see on need for exceptional circumstances, Wang v. Ashcroft, 260 F.3d 448 (5th Cir. 2001) A. 2. Johnson v. Ashcroft, 286 F.3d 696 (3d Cir. 2002) - cites with approval B. Smith v. Connor, 250 F.3d 277 (5th Cir. 4/25/01) - upholds |
| Dillingham, 21 I&N Dec. 1001 (1997) (ID3325), reversed (see cite) | foreign expungement of foreign drug conviction not effective for immigration purposes, even if alien would have been eligible for first offender treatment here | Dillingham v. INS,* 267 F.3d 996 (9th Cir. 2001) - reversed |
| Yewondwosen, 21 I&N Dec. 1025 (1997) (ID 3327) | BIA may grant MTR even if alien fails to submit application for relief in support of the motion where INS actually joins the motion: Board has authority to reopen even where there are technical deficiencies | 1. Konstantinova v. INS, 195 F.3d 528 (9th
Cir. 1999) - cited with approval (and goes somewhat
further)
2. Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000) - generally cited for Board's power to reopen sua sponte |
| O-D-, 21 I&N Dec. 1079 (1998) (ID 3334) | BIA sets forth two categories of false documents, noting use of such documents to ease travel or entry may not impugn overall credibility | Akinmade v. INS, 196 F.3d 951 (9th Cir. 1999) - agrees with concept of two classifications |
| Michel, 21 I&N Dec. 1101(1998) (ID 3335) | 212(h) now available to ag fels only if they are non-lprs, not lprs | 1. United States v. Arrieta, 224 F.3d 1076
(9th Cir. 2000) - cited generally, but appears to
accept Board ruling
2. Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir. 2001)- finds no equal protection violation in allowing only non-lprs to get 212(h) relief 3. Moore v. Ashcroft, 251 F.3d 919 (11th Cir. 2001) - does not cite Michel, but finds no equal protection violation 4. Lukowski v. INS, 279 F.3d 644 (8th Cir. 2002) - accepts decision, finds no equal protection violation 5. Jankowski-Burczyk v. INS, 291 F.3d 172 (2d Cir. 2002) - accepts decision, finds no equal protection violation 6. DeLeon-Reynoso v. Ashcroft, 293 F.3d 633 (3d Cir. 2002) - accepts decision, finds no equal protection violation 7. Taniguchi v. Schultz, ___ F.3d ___ (2002 WL 1941421) (9th Cir. 8/23/02) - does not cite Michel, but finds no equal protection violation |
| A-E-M-, 21 I&N Dec. 1157 (1998) (ID 3338) | reasonableness of fear of persecution reduced when family remains behind without difficulty | Aguilar-Solis v. INS, 168 F.3d 565 (1st Cir. 1999) - generally cited for rule regarding family left behind |
| M-D-, 21 I&N Dec. 1180 (1998) (ID 3339), remanded (see cite) | failure to provide corroborating evid where "reasonable to expect it" means failure to meet burden of proof in asylum case | 1. Ladha v. INS, 215 F.3d 889 (9th Cir.
2000) - corroboration req. "disapproved" if credible
testimony
2. Diallo v. INS*, 232 F.3d 279 (2d Cir. 2000) - upholds corrob. req (though remands on facts) |
| Magallanes-Garcia, ID 3341 (1998); overruled Ramos, 23 I&N 336 (2002) | conviction under Az. law for aggravated driving while under the influence is conviction of a "crime of violence," and thus an ag fel | 1. Tapia-Garcia v. INS, 237 F.3d 1216
(10th Cir. 2001) - generally cited, with
approval
2. U.S. v. Chapa-Garza, 243 F.3d 92, reh. en banc denied (with dissent), 262 F.3d 479 (5th Cir. 2001) - without citing Magallanes, calls reasoning into question 3. Bazan-Reyes v. INS, 256 F.3d 600 (7th Cir. 2001) - rejects definition of crime of violence 4. Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001) - rejects definition of crime of violence 5. U.S. v Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001) - in sentence enhancement case, finds DUI with injury to another not a crime of violence (does not actually cite Magallanes-Garcia) 6. Francis v. Reno, 269 F.3d 162 (3d Cir. 2001) - distinguished, because conviction here (under Pa. law) did not involve DUI |
| O-Z- & I-Z-, ID 3346 (1998) | Board finds harassment of Jews on account of religion rose to the level of persecution | Abdille v.Ashcroft, 242 F.3d 477 (3d Cir. 2001) - distinguished on facts |
| J-P-, ID 3348 (1998) | headache not exceptional circumstance excusing failure to appear where no medical or other evidence to support claim | 1. Singh v. INS, 213 F.3d 1050 (9th Cir.
2000) - upholds generally (but see B-A-S- case,
below)
2. Celis-Castellano v. Ashcroft, 298 F.3d 888 (9th Cir. 2002) - cites generally - finds asthma attack 4 days before hearing did not excuse failure to appear |
| B-A-S-, ID 3350 (1998) | sore foot not exceptional circumstance where alien did not submit affidavit from doctor or employer, or contact court immediately | 1. Singh v. INS*, 213 F.3d 1050
(9th Cir. 2000) - remands this precedent decision,
finding Board imposed new requirements without notice
2. Celis-Castellano v. Ashcroft, 298 F.3d 888 (9th Cir. 2002) - cites generally, noting that here, no notice problems as in Singh (above) - asthma attack 4 days before hearing did not excuse failure to appear |
| X-G-W-, ID 3352 (1998), superseded, G-C-L- 23 I&N 359 (2002) | Board reopens despite time and number restrictions where fundamental change in law (China population case) | Lucacela v. Reno, 161 F.3d 1055 (7th Cir. 1998) - generally cited for rule that Board can reopen sua sponte to serve interests of justice |
| Punu, ID 3364 (1998) | A. After IIRIRA, the third "finality" prong of Ozkok
for determining if conviction exists, no longer exists
B. Deferred adjudication of guilt under Texas law where probation is imposed is a conviction for immigration purposes |
A. Moosa v. INS, 171 F.3d 994 (5th Cir.
1999) - upholds Board
B. Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001) - Board's holding a "permissible construction" of statute. "Guilty-filed" disposition under Mass. law can be a conviction for immigration purposes - but case remanded on facts. |
| G-N-C-, ID 3366
(1998)
|
A. Decision by INS to institute proceedings is not subject to
review by Immigration Judge or Board.
B. Without discussion, applies IIRIRA's reinstatement of removal provisions § 241(a)(5) to alien who reentered prior to IIRIRA's effective date. |
A. Cortez-Felipe v. INS, 245 F.3d 1054
(9th Cir. 2001) - cites with approval
B. 1. Castro-Cortez, et al. v. Reno, 239 F.3d 1037(9th Cir. 2001) - rejects application of the statute to such aliens B. 2. Velasquez-Gabriel v. Crocetti, 263 F.3d 102 (4th Cir. 2001)- finds 241(a)(5) does apply to aliens who reenter prior to statute's effective date (does not cite G-N-C-) B. 3. Bejjani v. INS, 2001 WL 1421925 (6th Cir. 11/14/01) - rejects application of statute to such aliens (cites G-N-C- in footnote, noting Board did not address issue) |
| B-B-, ID 3367 (1998) | No ineffective assistance of counsel where counsel made tactical decision, and no egregious conduct | Saakian v. INS, 252 F.3d 21(1st Cir. 2001) - cites with approval, and distinguishes |
| N-M-A-, ID 3368 (1998) | asylum may be granted due to compelling circumstances despite no well-founded fear (though no compelling circumstances here) | Lal v. INS, 255 F.3d 998 (9th Cir. 2001) - cites with approval, but finds Board did not properly apply decision in this case - finds grant of asylum under Chen does not require ongoing disability |
| M-S-, ID 3369 (1998) | requirements for rescission of in absentia order not applicable to MTR that does not seek rescission; also, cannot deny discretionary relief without receiving oral notice of consequences of failure to appear | Lopez v. INS, 184 F.3d 1097 (9th Cir. 1999) - cited with approval in footnote |
| Lettman, ID 3370 (1998), affirmed (see cite) | alien convicted of ag fel subject to deportation regardless of date of conviction if placed in deportation proceedings on or after 3/1/91, and crime is within ag fel definition | 1. Lettman v. INS*,
207 F.3d 1368 (11th Cir. 2000) - affirmed
2. Lewis v. INS, 194 F.3d 539 (4th Cir. 1999) - upholds 3. Bell v. Reno, 218 F.3d 86 (2d Cir. 2000) - rejects Board and 11th and 4th Circuits' legal analysis, but agrees with conclusion that alien is deportable as ag fel |
| S-S-, ID 3374 (1999); strongly criticized Y-L-, A-G-, R-S-R-, 23 I&N 270 (AG2002) | determination whether an alien convicted of an ag fel is barred from withholding due to PSC (where sentenced to less than 5 years) requires individual examination of the offense | Chong v. INS, 264 F.3d 378 (3d Cir. 2001) - cited with approval, and notes actual individual hearing on issue of PSC not required |
| Ruiz-Romero, ID 3376 (1999), affirmed (see cite) | alien convicted of transporting illegal aliens within the U.S. subject to deportation as ag fel | Ruiz-Romero v. Reno*, 205 F.3d 837 (5th Cir. 2000) - affirmed |
| Roldan, ID 3377 (1999), reversed in part (see cite) | no effect to be given in immigration proceedings to expungements, etc. | 1. Lujan-Armendariz v. INS and
Roldan-Santoyo v. INS*, 222 F.3d 728 (9th 2000) -
reversed, but only insofar as Board decision relates to Federal
First Offenders Act or state counterparts
2. Sandoval v. INS, 240 F.3d 577 (7th Cir. 2001) - distinguishes because sentence modification here, not expungement (and notes Roldan has been "called into question") 3. Murillo-Espinoza v. INS, 261F.3d 771(9th Cir. 8/14/01) - upholds as "plausible" construction the Board's holding that state rehabilitative expungements will not be given effect (but see #1 above, for exception) 4. Vasquez-Velezmoro v. INS, 281 F.3d 693 (8th Cir. 2002) - upholds, and specifically declines to adopt reasoning of Lujan-Armendariz |
| Onyido, ID 3379 (1999) | "Attempt," as used in section 101(a)(43)(U) of the Act is not limited to crimes formally called "attempts." Intent to defraud plus "substantial step" to commit fraud may be sufficient for attempt under (U). | Sui v. INS, 250 F.3d 105 (2d Cir. 2001) - accepts legal holding, but finds no substantial step here (i.e. distinguishes on facts) |
| Cervantes-Gonzales, ID 3380 (1999), affirmed (see cite) | IIRIRA amendment to 212(i), adding hardship requirement, applies to cases pending when IIRIRA was enacted | Cervantes-Gonzales v. INS,* 244 F.3d 1001 (9th Cir. 2000) - affirmed |
| Nolasco, ID 3385 (1999) | No continuous physical presence for suspension if OSC is served less than 7 years after entry | 1. Appiah v. INS, 202 F.3d 704 (4th Cir.
2000) - upholds (finds stop-time rule constitutional)
2. Gonzalez-Torres, 213 F.3d 899 (5th Cir. 2000) - upholds (stop-time rule constitutional) 3. Rivera-Jimenez v. INS, 214 F.3d 1213 (10th Cir. 2000) - upholds Nolasco, but remands on facts re: brief, casual and innocent departure 4. Afolayan v. INS, 219 F.3d 784 (8th Cir. 2000) - upholds 5. Ayoub v. INS, 222 F.3d 214 (5th Cir. 2000) - upholds (characterizes Gonzalez-Torres, above, as dicta) 6. Angel-Ramos v. INS, 227 F.3d 942 (7th Cir. 2000) - upholds 7. Ashki v. INS, 233 F.3d 913 (6th Cir. 2000) - upholds 8. Rojas-Reyes v. INS, 235 F.3d 115 (2d Cir. 2000) - upholds 9. Bartoszewska-Zajac v. INS, 237 F.3d 710 (6th Cir. 2001) - upholds, and rejects equal protection arguments 10. Ram v. INS, 243 F.3d 510 (9th Cir. 2001) - upholds 11. Guadalupe-Cruz v. INS, 240 F.3d 1209 (9th Cir. 2001) - distinguished, because Immigration Judge incorrectly applied stop-time law before its effective date 12. Sad v. INS, 246 F.3d 811(6th Cir. 2001) - upholds, and also rejects retroactivity and equal protection arguments 13, Pinho v. INS, 249 F.3d 183 (3d Cir. 2001) - upholds 14. See also Tefel v. Reno, 180 F.3d 1286 (11th Cir. 1999) - without citing Nolasco, finds stop-time rule constitutional |
| L-S-, ID 3386 (1999) | determination whether an alien convicted of an ag fel is barred from withholding due to PSC (where sentenced to less than 5 years) requires individual examination of the offense | Chong v. INS, 264 F.3d 378 (3d Cir. 2001) - cited with approval, and notes actual individual hearing on issue of PSC not required |
| Perez, ID 3389 (1999) | continuous physical presence for cancellation of removal ends on date offense is committed | Henry v. Ashcroft, 175 F.Supp. 2d 688 (S.D.N.Y 2001) - rejects, holding application of new IIRIRA provision to offense committed pre-IIRIRIA has improper retroactive effect |
| Alvarado-Alvino, ID 3391 (1999) | Ag fel under 101(a)(43)(N) includes only convictions under 8 U.S.C. § 1324(a), not § 1325(a) | Rivera-Sanchez v. Reno, 198 F.3d 545 (5th Cir. 1999) - upheld |
| H-A-, ID 3394 (1999); modified Velarde, 23 I&N 253 (2002) | Arthur, 20 I&N Dec. 475 (1992), requiring approved visa petition prior to reopening for adjustment, survives regulations imposing MTR time limits (but Arthur modified by Velarde, 23 I&N 253 (2002) | Balwinder Singh v. Quarantillo, 92 F.Supp. 2d 386 (D.N.J. 2000) - rejects Board majority and adopts dissent rationale |
| Ponce-Hernandez, ID 3397 (1999) | Form I-213 is an inherently trustworthy, admissible document | Guerrero-Perez v. INS, 242 F.3d 727 (7th Cir. 2001) - cites generally with approval |
| R-S-J-, ID 3401 (1999) | false statements to asylum officer can constitute false testimony for purposes of 101(f)(6) | Ramos v. INS, 246 F.3d 1264 (9th Cir. 2001) - cites with approval |
| L-V-K-, ID 3409 (1999), vacated (see cite) | motion to remand filed while appeal of denial of MTR proceedings that are administratively final is pending is untimely if filed more than 90 days after the final order | 1. Konstantinova v. INS*
(9th Cir. 4/3/00) - in unpublished order, without
explanation, Board's precedent was vacated. Earlier, published
decision, at 195 F.3d 528 (9th Cir. 1999), did not deal with Board's
precedent decision
2. Wang v. Ashcroft, 260 F.3d 448 (5th Cir. 2001) - upholds and applies to case 3. Krougliak v. INS, 289 F.3d 457 (7th Cir. 2002) - upholds |
| Rodriguez-Rodriguez, ID 3411 (1999) | crime of indecency with a child by exposure under section 21.11(a)(2) of Texas law is sexual abuse of a minor and thus an ag fel | 1. U.S. v. Zavala-Sustaita, 214 F.3d 601(5th Cir.
2000) - upheld
2. Guerrero-Perez v. INS, 242 F.3d 727(7th Cir. 2001) - upholds (conviction was for "criminal sexual abuse" under Illinois law) 3. Emile v. INS, 244 F.3d 183 (1st Cir. 2001) - cites with approval (conviction was for indecent assault and battery on a child under 14 under Mass. law) 4. Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir. 2001) - cites with approval 5. Bahar v. Ashcroft, 264 F.3d 1309 (11th Cir. 2001) -Cites with approval (conviction in N.C. for crime of taking indecent liberties with a minor) |
| Puente, ID 3412 (1999); overruled Ramos, 23 I&N 336 (2002) | conviction of driving while intoxicated under Texas law is a crime of violence and thus an ag fel | 1. Tapia Garcia v. INS, 237 F.3d 1216
(10th Cir. 2001) - upholds Board decision as
reasonable
2. U.S. v. Chapa-Garza, 243 F.3d 921, reh. en banc denied (with dissent), 262 F.3d 479 (5th Cir. 2001) - without citing Puente, rejects holding 3. Bazan-Reyes v. INS, 256 F.3d 600 (7th Cir. 2001) - rejects 4. Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001) - rejects definition of crime of violence 5. U.S. v Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001) - in sentence enhancement case, finds DUI with injury to another not a crime of violence (does not actually cite Puente) |
| K-V-D-, ID 3422 (1999), overruled, Yanez, 23 I&N 390 (2002) | court interpretation of "ag fel" for sentence enhancement purposes does not control interpretation for immigration purposes | U.S. v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2001) - rejects holding |
| Mendoza-Sandino, ID 3426 (2000) | alien may not accrue 7 years continuous physical presence for suspension after service of OSC | 1. Afolayan v. INS, 219 F.3d 784 (8th Cir.
2000) - upholds as reasonable interpretation (see also
Escudero-Corona v. INS, 244 F.3d 608 (8th Cir. 2001) -
same result
2. McBride v. INS, 238 F.3d 371(5th Cir. 2001) - upholds as reasonable interpretation 3. Ram v. INS, 243 F.3d 510 (9th Cir. 2001) - upholds |
| Perez, ID 3432 (2000) | burglary of a vehicle not a "burglary offense" within section 101(a)(43)(G) ag fel definition | 1. Ye v. INS, 214 F.3d 1128 (9th Cir.
2000) - decided 3 days after Perez, reaches same
conclusion
2. Lopez-Elias v. Reno, 209 F.3d 788 (5th Cir. 2000) -decided a month before Perez, reaches same conclusion |
| V-Z-S-, ID 3434 (2000) | offense is "theft offense" under section 101(a)(43)(G) if there is intent to deprive owner of property, even if deprivation is less than total or permanent | Hernandez-Mancilla v. INS, 246 F.3d 1002 (7th Cir. 2001) upholds (court dealt with Ill. crime of possession of stolen vehicle) |
| Rodriguez-Ruiz, ID 3436 (2000) | conviction that is vacated, not expunged, does not constitute conviction for immigration purposes | Sandoval v. INS, 240 F.3d 577 (7th Cir.
2001) - generally cited, with approval
|
| Bahta, ID 3437 (2000) | conviction for attempted possession of stolen property is conviction of receipt of stolen property, and a theft offense and thus an ag fel | 1. U.S. v.Vasquez-Flores, 265 F.3d 1122 (10th Cir.
2001) - generally upholds specifically adopts 7th
Circuit reasoning in Hernandez-Mancilla (see below) - sentencing
enhancement case
2. Hernandez-Mancilla v. INS, 246 F.3d 1002 (7th Cir. 2001) - generally upholds, but reads "theft offense" somewhat more broadly (court dealt with Ill. crime of possession of stolen vehicle) |
| Vasquez-Muniz, ID 3440 (2000); overruled Vasquez-Muniz, 23 I&N 207 (2002) | Possession of firearm by felon under Calif. law is not an ag fel. | United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. 2001) - without citing Board ID, reaches opposite conclusion (case involves same Calif. law) - finds it is an ag fel. |
| Crammond, 23 I&NDec.(2001) vacated, 23 I&N Dec. 179(2001) | conviction for sexual abuse of a minor must be for felony offense to be ag fel under 101(a)(43)(A), but decision vacated | Guerrero-Perez v. INS, 256 F.3d 546 (7th Cir. 2001) - rejects (holds it could be misdemeanor offense) |
| Rodriguez-Tejedor, 23 I&N Dec. 153 (2001) | person who was over 18 on effective date of Child Citizenship Act of 2000 not eligible for automatic citizenship | 1. Hughes v. Ashcroft, 255 F.3d 752 (9th
Cir. 2001) - without citing, reaches same conclusion
2. Nehme v. INS, 252 F.3d 415 (5th Cir. 2001) - without citing, reaches same conclusion |
| G-Y-R-, 23 I&N Dec. 181 (2001) | in absentia order inappropriate where alien did not receive, or cannot be charged with receiving, NTA | Dominguez v. INS, 284 F.3d 1258 (11th Cir. 2002) - without citing Board case, calls holding into question - notice to last address formally provided is sufficient |
| Ramos, 23 I&N Dec. 336 (2002) | DUI a crime of violence under § 16(b) only if committed at least recklessly and involves substantial risk force will be used | Omar v. INS, 298 F.3d 710 (8th Cir. 2002) - distinguishes from conviction under Minn. law for criminal vehicular homicide |