BIA Precedent Decisions Volume 27 (3887 – 2017-) Executive Office for Immigration Review

DEANG, 27 I&N Dec. 57 (BIA 2017)

ID 3896 (PDF)

An essential element of an aggravated felony receipt of stolen property offense under section 101(a)(43)(G) of the Act, 8 U.S.C. § 1101(a)(43)(G) (2012), is that an offender must receive property with the “knowledge or belief” that it has been stolen, and this element excludes a mens rea equivalent to a “reason to believe.

A conviction for receipt of a stolen motor vehicle under section 32-4-5 of the South Dakota Codified Laws categorically does not define an aggravated felony receipt of stolen property offense under section 101(a)(43)(G) of the Act because it is indivisible with respect to the necessary mens rea and only requires, at a minimum, that an offender have a “reason to believe” that the vehicle received was stolen.

FALODUN, 27 I&N Dec. 52 (BIA 2017)

ID 3895 (PDF)

Unlike a Certificate of Naturalization, a certificate of citizenship does not confer United States citizenship but merely provides evidence that the applicant previously obtained citizenship status.


ALDAY-DOMINGUEZ, 27 I&N Dec. 48 (BIA 2017)

ID 3894 (PDF)

The aggravated felony receipt of stolen property provision in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2012), does not require that unlawfully received property be obtained by means of common law theft or larceny.


L-E-A-, 27 I&N Dec. 40 (BIA 2017)

ID 3893 (PDF)

(1) Whether a particular social group based on family membership is cognizable depends on the nature and degree of the relationships involved and how those relationships are regarded by the society in question.

(2) To establish eligibility for asylum on the basis of membership in a particular social group composed of family members, an applicant must not only demonstrate that he or she is a member of the family but also that the family relationship is at least one central reason for the claimed harm.


M-B-C-, 27 I&N Dec. 31 (BIA 2017)

ID 3892 (PDF)

Where the record contains some evidence from which a reasonable factfinder could conclude that one or more grounds for mandatory denial of an application for relief may apply, the alien bears the burden under 8 C.F.R. § 1240.8(d) (2016) to prove by a preponderance of the evidence that such grounds do not apply.


J.M. ALVARADO, 27 I&N Dec. 27 (BIA 2017)

ID 3891 (PDF)

The persecutor bar in section 241(b)(3)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)(B)(i) (2012), applies to an alien who assists or otherwise participates in the persecution of an individual because of that person’s race, religion, nationality, membership in a particular social group, or political opinion, without regard to the alien’s personal motivation for assisting or participating in the persecution.


CHAIREZ, 27 I&N Dec. 21 (BIA 2017)

ID 3890 (PDF)

In determining whether a statute is divisible under Mathis v. United States, 136 S. Ct. 2243 (2016), Immigration Judges may consider or “peek” at an alien’s conviction record only to discern whether statutory alternatives define “elements” or “means,” provided State law does not otherwise resolve the question.


W-Y-U-, 27 I&N Dec. 17 (BIA 2017)

ID 3889 (PDF)

(1) The primary consideration for an Immigration Judge in evaluating whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits. Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), clarified.

(2) In considering administrative closure, an Immigration Judge cannot review whether an alien falls within the enforcement priorities of the Department of Homeland Security, which has exclusive jurisdiction over matters of prosecutorial discretion.


WU, 27 I&N Dec. 8 (BIA 2017) ID 3888 (PDF)

Assault with a deadly weapon or force likely to produce great bodily injury under California law is categorically a crime involving moral turpitude. Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014) (en banc), distinguished.


JIMENEZ-CEDILLO, 27 I&N Dec. 1 (BIA 2017) ID 3887 (PDF)

(1) A sexual offense in violation of a statute enacted to protect children is a crime involving moral turpitude where the victim is particularly young—that is, under 14 years of age—or is under 16 and the age differential between the perpetrator and victim is significant, or both, even though the statute requires no culpable mental state as to the age of the child. 26 I&N Dec. 826 (BIA 2016), clarified.

(2) Sexual solicitation of a minor under section 3-324(b) of the Maryland Criminal Law with the intent to engage in an unlawful sexual offense in violation of section 3-307 is categorically a crime involving moral turpitude.


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BIA Precedent Decisions Volume 26 (2012-2017) Executive Office for Immigration Review

FLORES-ABARCA, 26 I&N Dec. 992 (BIA 2017) ID 3886 (PDF)

The crime of transporting a loaded firearm in violation of title 21, section 1289.13 of the Oklahoma Statutes is categorically a firearms offense under section 237(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(C) (2012), even though the term “transporting” is not included in the Act, because section 237(a)(2)(C) is broadly construed to encompass all types of firearms offenses.

KIM, 26 I&N Dec. 912 (BIA 2017) ID 3885 (PDF)

The crime of mayhem in violation of section 203 of the California Penal Code, which requires a malicious act that results in great bodily injury to another person, necessarily involves the use of violent force and is therefore categorically a crime of violence under 18 U.S.C. § 16(a) (2012).


CALCANO DE MILLAN, 26 I&N Dec. 904 (BIA 2017)

ID 3884 (PDF)

For purposes of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, and section 204(a)(1)(A)(viii)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1154(a)(1)(A)(viii)(I) (2012), a United States citizen or lawful permanent resident petitioner has been “convicted” of an offense where either a formal judgment of guilt has been entered by a court or, if adjudication of guilt has been withheld, where (1) a plea, finding, or admission of facts established the petitioner’s guilt and (2) a judge ordered some form of punishment, penalty, or restraint on his or her liberty.


ALVARADO, 26 I&N Dec. 895 (BIA 2016)

ID 3883 (PDF)

(1) The generic definition of “perjury” in section 101(a)(43)(S) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(S) (2012), requires that an offender make a material false statement knowingly or willfully while under oath or affirmation where an oath is authorized or required by law.

(2) The crime of perjury in violation of section 118(a) California Penal Code is categorically an offense relating to perjury under section 101(a)(43)(S) of the Act.


DHANASAR, 26 I&N Dec. 884 (AAO 2016) ID 3882 IPFD)

USCIS may grant a national interest waiver if the petitioner demonstrates: (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that he or she is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements. Matter of New York State Dep’t of Transp., 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998), vacated.


W-A-F-C-, 26 I&N Dec. 880 (BIA 2016)

ID 3881 (PDF)

Where the Department of Homeland Security seeks to re-serve a respondent to effect proper service of a notice to appear that was defective under the regulatory requirements for serving minors under the age of 14, a continuance should be granted for that purpose. Matter of E-S-I-, 26 I&N Dec. 136 (BIA 2013), followed.


M-S-B-, 26 I&N Dec. 872 (BIA 2016)

ID 3880 (PDF)

(1) An untimely application for asylum may be found frivolous under section 208(d)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1158(d)(6) (2012). Luciana v. Att’y Gen. of U.S., 502 F.3d 273 (3d Cir. 2007), distinguished. Matter of X-M-C-, 25 I&N Dec. 322 (BIA 2010), followed.

(2) The respondent’s asylum application is frivolous because he deliberately made a false statement postdating by more than 2 years his date of entry into this country, which is a material element in determining his eligibility to seek asylum given the general requirement to file the application within 1 year of the date of arrival in the United States.


L-T-P-, 26 I&N Dec. 862 (BIA 2016)

ID 3879 (PDF)

(1) An applicant for adjustment of status under section 209 of the Immigration and Nationality Act, 8 U.S.C. § 1159 (2012), must be either a refugee or an asylee.

(2) Cubans who were paroled into the United States under section 212(d)(5) of the Act, 8 U.S.C. § 1182(d)(5) (1976), between April 1, 1980, and May 18, 1980, are considered to have been admitted as refugees pursuant to the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102.

(3) The respondent, who was paroled into the United States on August 25, 1980, with an Arrival/Departure Record (Form I-94) that was stamped “Cuban/Haitian Entrant (Status Pending)” and indicates that the purpose of his parole was for “Cuban Asylum,” is ineligible to adjust his status under section 209 of the Act because he was neither admitted as a refugee nor granted asylum.


OBEYA, 26 I&N Dec. 856 (BIA 2016)

ID 3878 (PDF)

Petit larceny in violation of section 155.25 of the New York Penal Law, which requires an intent to deprive the owner of his property either permanently or under circumstances where the owner’s property rights are substantially eroded, is categorically a crime involving moral turpitude. Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016), followed.


DIAZ-LIZARRAGA, 26 I&N Dec. 847 (BIA 2016)

ID 3877 (PDF)

(1) A theft offense is a crime involving moral turpitude if it involves a taking or exercise of control over another’s property without consent and with an intent to deprive the owner of his property either permanently or under circumstances where the owner’s property rights are substantially eroded.

(2) Shoplifting in violation of section 13-1805(A) of the Arizona Revised Statutes is categorically a crime involving moral turpitude.


TIMA, 26 I&N Dec. 839 (BIA 2016)

ID 3876 (PDF)

A fraud waiver under section 237(a)(1)(H) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(H) (2012), cannot waive an alien’s removability under section 237(a)(2)(A)(i) for having been convicted of a crime involving moral turpitude, even if the conviction is based on the underlying fraud.


SILVA-TREVINO, 26 I&N 826 (BIA 2016)

ID 3875 (PDF)

(1) The categorical and modified categorical approaches provide the proper framework for determining whether a conviction is for a crime involving moral turpitude.

(2) Unless the controlling case law of the governing Federal court of appeals expressly dictates otherwise, the realistic probability test, which focuses on the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction, should be applied in determining whether an offense is a categorical crime involving moral turpitude.

(3) Under the “minimum reading” approach applied by the United States Court of Appeals for the Fifth Circuit, the respondent’s conviction for indecency with a child under section 21.11(a)(1) of the Texas Penal Code is not for a categorical crime involving moral turpitude.

(4) An alien who has engaged in misconduct involving sexual abuse of a minor is not required to make a heightened evidentiary showing of hardship or other factors to establish that an application for relief warrants a favorable exercise of discretion.

CHAIREZ , 26 I&N Dec. 819 (BIA 2016) ID 3874 (PDF)

The respondent’s removability as an alien convicted of an aggravated felony was not established where section 76-10-508.1 of the Utah Code was not shown to be divisible with respect to the mens rea necessary for the offense to qualify as a crime of violence under 18 U.S.C. § 16(a) (2012), based on the Supreme Court’s decisions in Mathis v. United States, 136 S. Ct. 2243 (2016), and Descamps v. United States, 133 S. Ct. 2276 (2013). Matter of Chairez, 26 I&N Dec. 349 (BIA 2014), and Matter of Chairez, 26 I&N Dec. 478 (BIA 2015), clarified.

ZARAGOZA-VAQUERO, 26 I&N Dec. 814 (BIA 2016) ID 3873 (PDF)

The offense of criminal copyright infringement in violation of 17 U.S.C. § 506(a)(1)(A) (2012) and 18 U.S.C. § 2319(b)(1) (2012) is a crime involving moral turpitude.

IBARRA, 26 I&N Dec. 809 (BIA 2016) ID 3872 (PDF)

(1) A “theft offense” under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 101(a)(43)(G) (2012), which requires the taking of property “without consent,” includes extortionate takings, in which consent is coerced by the wrongful use of force, fear, or threats.

(2) Robbery by force or fear in violation of section 211 of the California Penal Code is categorically an aggravated felony theft offense under section 101(a)(43)(G) of the Act.

GUZMAN-POLANCO, 26 I&N Dec. 806 (BIA 2016) ID 3871 (PDF)

The crime of aggravated battery in violation of the Puerto Rico Penal Code is not categorically a crime of violence under 18 U.S.C. § 16(a) (2012), but controlling circuit court law should be followed regarding the question whether conduct such as the use or threatened use of poison to injure another person involves sufficient “force” to constitute a crime of violence. Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016), clarified.

In assessing whether an offense qualifies as an aggravated felony under section 101(a)(43)(T) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(T) (2012), the categorical approach applies to decide if the offense relates to an alien’s failure to appear before a court, but the circumstance-specific approach applies to determine if the failure to appear was (1) pursuant to a court order (2) to answer to or dispose of a charge of a felony (3) for which a sentence of 2 years’ imprisonment or more may be imposed.


KHAN , 26 I&N Dec. 797 (BIA 2016) ID 3870 (PDF)

Immigration Judges do not have authority to adjudicate a request for a waiver of inadmissibility under section 212(d)(3)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1182(d)(3)(A)(ii) (2012), by a petitioner for U nonimmigrant status.

CHAIREZ and SAMA, 26 I&N Dec. 796 (A.G. 2016) ID 3869 (PDF)

The Attorney General lifted the stay and remanded these cases to the Board of Immigration Appeals for appropriate action.

FATAHI, 26 I&N Dec. 791 (BIA 2016) ID 3868 (PDF)

In determining whether an alien presents a danger to the community at large and thus should not be released on bond pending removal proceedings, an Immigration Judge should consider both direct and circumstantial evidence of dangerousness, including whether the facts and circumstances present national security considerations.

RICHMOND, 26 I&N Dec. 779 (BIA 2016) ID 3867 (PDF)

(1) A false claim to United States citizenship falls within the scope of section 212(a)(6)(C)(ii)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(ii)(I) (2012), where there is direct or circumstantial evidence that the false claim was made with the subjective intent of obtaining a purpose or benefit under the Act or any other Federal or State law, and where United States citizenship actually affects or matters to the purpose or benefit sought.

(2) There is a distinction between achieving a “purpose” and obtaining a “benefit” under section 212(a)(6)(C)(ii)(I) of the Act.

(3) Avoiding removal proceedings qualifies as a “purpose” within the meaning of section 212(a)(6)(C)(ii)(I) of the Act.

M-J-K-, 26 I&N Dec. 773 (BIA 2016) ID 3866 (PDF)

In cases involving issues of mental competency, an Immigration Judge has the discretion to select and implement appropriate safeguards, which the Board of Immigration Appeals reviews de novo.

GOMEZ-BELTRAN, 26 I&N Dec. 765 (BIA 2016) ID 3865 (PDF)

An alien cannot establish good moral character under section 101(f)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1101(f)(6) (2012), if, during the period for which it is required, he or she gives false testimony under oath in proceedings before an Immigration Judge with the subjective intent of obtaining immigration benefits.

M-H-Z-, 26 I&N Dec. 757 (BIA 2016) ID 3864 (PDF)

The “material support bar” in section 212(a)(3)(B)(iv)(VI) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(3)(B)(iv)(VI) (2012), does not include an implied exception for an alien who has provided material support to a terrorist organization under duress.

H. ESTRADA, 26 I&N Dec. 749 (BIA 2016) ID 3863 (PDF)

(1) In analyzing whether a conviction is for a crime of domestic violence under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012), the circumstance-specific approach is properly applied to determine the domestic nature of the offense.

(2) Where the respondent’s original sentence for his Georgia conviction was ambiguous as to whether he was sentenced to probation or a probated term of imprisonment, a clarification order issued by the sentencing judge to correct an obvious discrepancy in her original order will be given effect in determining whether the respondent was sentenced to a term of imprisonment of at least 1 year.

GONZALEZ ROMO, 26 I&N Dec. 743 (BIA 2016) ID 3862 (PDF)

Within the jurisdiction of the United States Court of Appeals for the Ninth Circuit, a returning lawful permanent resident who has a felony conviction for solicitation to possess marijuana for sale is inadmissible under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2012), even though that section refers only to attempt and conspiracy to commit a crime involving moral turpitude, and is therefore properly considered to be an arriving alien under section 101(a)(13)(C)(v) of the Act, 8 U.S.C. § 1101(a)(13)(C)(v) (2012). Matter of Vo, 25 I&N Dec. 426 (BIA 2011), clarified.


GARZA-OLIVARES, 26 I&N Dec. 736 (BIA 2016) ID 3861 (PDF)
RUZKU, 26 I&N Dec. 731 (BIA 2016) ID 3860 (PDF)

Direct sibling-to-sibling DNA test results reflecting a 99.5 percent degree of certainty or higher that a full sibling biological relationship exists should be accepted and considered to be probative evidence of the relationship.


ADENIYE, 26 I&N Dec. 726 (BIA 2016) (as amended) ID 3859 (PDF)

An “offense relating to a failure to appear by a defendant for service of sentence” is an aggravated felony under section 101(a)(43)(Q) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(Q) (2012), if the underlying offense was “punishable by” imprisonment for a term of 5 years or more, regardless of the penalty actually ordered or imposed.


VILLALOBOS, 26 I&N Dec. 719 (BIA 2016)

ID 3858 (PDF)

(1) Although the Department of Homeland Security has exclusive jurisdiction over applications for adjustment of status under the legalization provisions of section 245A of the Immigration and Nationality Act, 8 U.S.C. § 1255a (2012), the Immigration Judges and the Board of Immigration Appeals have jurisdiction to determine whether an alien was eligible for a previous adjustment under section 245A(b)(1) for purposes of assessing the alien’s removability and current eligibility for relief from removal.

(2) An alien seeking to acquire lawful permanent resident status through the legalization provisions of section 245A of the Act must establish admissibility, both at the time of the initial application for temporary resident status and again when applying for adjustment to permanent resident status under section 245A(b)(1).

(3) An alien who was inadmissible at the time of adjustment of status from temporary resident to permanent resident under section 245A(b)(1) of the Act was not lawfully admitted for permanent residence and is therefore ineligible for a waiver of inadmissibility under former section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994).


GUZMAN-POLANCO, 26 I&N Dec. 713 (BIA 2016)

ID 3857 (PDF)

(1) For a State offense to qualify as a crime of violence under 18 U.S.C. § 16(a) (2012), the State statute must require as an element the use, attempted use, or threatened use of violent physical force. Matter of Martin, 23 I&N Dec. 491 (BIA 2002), withdrawn.

(2) The crime of aggravated battery under the Puerto Rico Penal Code, which may be committed by means that do not require the use of violent physical force, is not categorically a crime of violence under 18 U.S.C. § 16(a).


MENDOZA OSORIO, 26 I&N Dec. 703 (BIA 2016)

ID 3856 (PDF)

The offense of endangering the welfare of a child in violation of section 260.10(1) of the New York Penal Law, which requires knowingly acting in a manner likely to be injurious to the physical, mental, or moral welfare of a child, is categorically a “crime of child abuse, child neglect, or child abandonment” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012).


CALVILLO GARCIA, 26 I&N Dec. 697 (BIA 2015)

ID 3855 (PDF)

A term of confinement in a substance abuse treatment facility imposed as a condition of probation pursuant to article 42.12, section 14(a) of the Texas Code of Criminal Procedure constitutes a “term of confinement” under section 101(a)(48)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(B) (2012), for purposes of determining if an offense is a crime of violence under section 101(a)(43)(F) of the Act.


CASTRO-LOPEZ, 26 I&N Dec. 693 (BIA 2015)

ID 3854 (PDF)

The 10 years of continuous physical presence required by 8 C.F.R. § 1240.66(c)(2) (2015) for aliens seeking special rule cancellation of removal under section 203 of the Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, tit. II, 111 Stat. 2160, 2193, 2196 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997), should be measured from the alien’s most recently incurred ground of removal, at least where that ground is among those listed in 8 C.F.R. § 1240.66(c)(1).


Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015)

ID 3853 (PDF)

(1) The requirements of the Federal Rules of Evidence with respect to the admission of expert testimony are inapposite to a respondent’s testimony regarding events of which he or she has personal knowledge.

(2) Conduct by an Immigration Judge that can be perceived as bullying or hostile is never appropriate, particularly in cases involving minor respondents, and may result in remand to a different Immigration Judge.


Chairez and Sama, 26 I&N Dec. 686 (A.G. 2015)

ID 3852 (PDF)

The Attorney General referred the decisions of the Board of Immigration Appeals to herself for review of an issue relating to the application of Descamps v. United States, 133 S. Ct. 2276 (2013), ordering that those cases be stayed and not be regarded as precedential or binding as to the issue under review during the pendency of her review.


J-S-S-, 26 I&N Dec. 679 (BIA 2015)

ID 3851 (PDF)

(1) Neither party bears a formal burden of proof in immigration proceedings to establish whether or not the respondent is mentally competent, but where indicia of incompetency are identified, the Immigration Judge should determine if a preponderance of the evidence establishes that the respondent is competent.

(2) An Immigration Judge’s finding of competency is a finding of fact that the Board of Immigration Appeals reviews to determine if it is clearly erroneous.


GARCIA-RAMIREZ, 26 I&N Dec. 674 (BIA 2015)

ID 3850 (PDF)

(1) Where an alien has the right to a hearing before an Immigration Judge, a voluntary departure or return does not break the alien’s continuous physical presence for purposes of cancellation of removal under section 240A(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(A) (2012), in the absence of evidence that he or she was informed of and waived the right to such a hearing, regardless of whether the encounter occurred at or near the border. Matter of Avilez, 23 I&N Dec. 799 (BIA 2005), clarified.

(2) Evidence that an alien who had the right to a hearing before an Immigration Judge was fingerprinted and/or photographed before being allowed to voluntarily depart is not enough, in itself, to demonstrate a waiver of the right to a hearing or to show a process of sufficient formality to break continuous physical presence. Matter of Castrejon-Colino, 26 I&N Dec. 667 (BIA 2015), followed.


CASTREJON-COLINO, 26 I&N Dec. 667 (BIA 2015)

ID 3849 (PDF)

(1) Where an alien has the right to a hearing before an Immigration Judge, a voluntary departure or return does not break the alien’s continuous physical presence for purposes of cancellation of removal under section 240A(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(A) (2012), in the absence of evidence that he or she was informed of and waived the right to such a hearing. Matter of Avilez, 23 I&N Dec. 799 (BIA 2005), clarified.

(2) Evidence that an alien who had the right to a hearing before an Immigration Judge was fingerprinted and/or photographed before being allowed to voluntarily depart is not enough, in itself, to demonstrate a waiver of the right to a hearing or to show a process of sufficient formality to break continuous physical presence.


R-K-K-, 26 I&N Dec. 658 (BIA 2015)

ID 3848 (PDF)

(1) Significant similarities between statements submitted by applicants in different proceedings can be considered by an Immigration Judge in making an adverse credibility determination if certain procedural steps are undertaken to preserve the fairness of the proceedings.

(2) When relying on inter-proceeding similarities, the Immigration Judge should give the applicant meaningful notice of the similarities and a reasonable opportunity to explain them prior to making a credibility determination that is based on the totality of the circumstances.


M-A-F-, 26 I&N Dec. 651 (BIA 2015)

ID 3847 (PDF)

(1) Where an applicant has filed an asylum application before the May 11, 2005, effective date of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 302, and, on or after that date, submitted a subsequent application that is properly viewed as a new application, the later filing date controls for purposes of determining the applicability of section 208(b)(1)(B)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(B)(iii) (2012), to credibility determinations.

(2) A subsequent asylum application is properly viewed as a new application if it presents a previously unraised basis for relief or is predicated on a new or substantially different factual basis.

(3) Where an alien has filed more than one application for asylum and the subsequent one is deemed to be a new application, the filing date of the later application controls for purposes of determining whether the 1-year statutory time bar applies under section 208(a)(2)(B) of the Act.


D-M-C-P-, 26 I&N Dec. 644 (BIA 2015)

ID 3846 (PDF)

(1) Neither an Immigration Judge nor the Board of Immigration Appeals has jurisdiction to consider whether asylum-only proceedings were improvidently instituted pursuant to a referral under the Visa Waiver Program.

(2) It is improper to deem an application for relief abandoned based on the applicant’s failure to comply with the biometrics filing requirement where the record does not reflect that the applicant received notification advisories concerning that requirement, was given a deadline for submitting the biometrics, and was advised of the consequences of his or her failure to comply.


ORDAZ, 26 I&N Dec. 637 (BIA 2015)

ID 3845 (PDF)

A notice to appear that was served on an alien but never resulted in the commencement of removal proceedings does not have “stop-time” effect for purposes of establishing eligibility for cancellation of removal pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1) (2012).


R. HUANG, 26 I&N Dec. 627 (BIA 2015)

ID 3844 (PDF)

The beneficiary of a visa petition who was adopted pursuant to a State court order that was entered when the beneficiary was more than 16 years old, but with an effective date prior to his or her 16th birthday, may qualify as an adopted child under section 101(b)(1)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(E)(i)(2012), so long as the adoption petition was filed before the beneficiary’s 16th birthday and the State in which the adoption was entered expressly permits an adoption decree to be dated retroactively. Matter of Cariaga, 15 I&N Dec. 716 (BIA 1976), and Matter of Drigo, 18 I&N Dec. 223 (BIA 1982), modified.


P. SINGH, 26 I&N Dec. 623 (BIA 2015)

ID 3843 (PDF)

An attorney who admitted to engaging in conduct prejudicial to the administration of justice by enlisting his legal assistant to impersonate him during multiple telephonic appearances before Immigration Judges was appropriately suspended from practice before the Immigration Courts, the Board of Immigration Appeals, and the Department of Homeland Security for a period of 16 months and prohibited from appearing telephonically in the Immigration Courts for 7 years.


PENA, 26 I&N Dec. 613 (BIA 2015)

ID 3842 (PDF)

An alien returning to the United States who has been granted lawful permanent resident status cannot be regarded as seeking an admission and may not be charged with inadmissibility under section 212(a) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a) (2012), if he or she does not fall within any of the exceptions in section 101(a)(13)(C) of the Act, 8 U.S.C. § 1101(a)(13)(C) (2012). Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003), distinguished.


J-R-R-A-, 26 I&N Dec. 609 (BIA 2015)

ID 3841 (PDF)

If an applicant for asylum has competency issues that affect the reliability of his testimony, the Immigration Judge should, as a safeguard, generally accept his fear of harm as subjectively genuine based on the applicant’s perception of events.


FAJARDO ESPINOZA , 26 I&N Dec. 603 (BIA 2015)

ID 3840 (PDF)

A grant of Family Unity Program benefits does not constitute an “admission” to the United States under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A) (2012), for purposes of establishing that an alien has accrued the requisite 7 years of continuous residence after having been “admitted in any status” to be eligible for cancellation of removal under section 240A(a)(2) of the Act, 8 U.S.C. § 1229b(a)(2) (2012). Matter of Reza, 25 I&N Dec. 296 (BIA 2010), reaffirmed. Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006), not followed.


FRANCISCO-ALONZO, 26 I&N Dec. 594 (BIA 2015)

ID 3839 (PDF)

In determining whether a conviction is for an aggravated felony crime of violence under 18 U.S.C. § 16(b) (2012), the proper inquiry is whether the conduct encompassed by the elements of the offense presents a substantial risk that physical force may be used in the course of committing the offense in the “ordinary case.”


Z-Z-O-, 26 I&N Dec. 586 (BIA 2015)

ID 3838 (PDF)

(1) An Immigration Judge’s predictive findings of what may or may not occur in the future are findings of fact, which are subject to a clearly erroneous standard of review. Matter of V-K-, 24 I&N Dec. 500 (BIA 2008), and Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008), overruled.

(2) Whether an asylum applicant has an objectively reasonable fear of persecution based on the events that the Immigration Judge found may occur upon the applicant’s return to the country of removal is a legal determination that is subject to de novo review.


AGOUR, 26 I&N Dec. 566 (BIA 2015)

ID 3837 (PDF)

Adjustment of status constitutes an “admission” for purposes of determining an alien’s eligibility to apply for a waiver under section 237(a)(1)(H) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(H) (2012). Matter of Connelly, 19 I&N Dec. 156 (BIA 1984), distinguished.


J-H-J, 26 I&N Dec. 563 (BIA 2015)

ID 3836 (PDF)

An alien who adjusted status in the United States, and who has not entered as a lawful permanent resident, is not barred from establishing eligibility for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2012), as a result of an aggravated felony conviction. Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012), and Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), withdrawn.


FITZPATRICK, 26 I&N Dec. 559 (BIA 2015)

ID 3835 (PDF)

An alien who has voted in an election involving candidates for Federal office in violation of 18 U.S.C. § 611(a) (2012) is removable under section 237(a)(6)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(6)(A) (2012), regardless of whether the alien knew that he or she was committing an unlawful act by voting.


MONTIEL, 26 I&N Dec. 555 (BIA 2015)

ID 3834 (PDF)

Removal proceedings may be delayed, where warranted, pending the adjudication of a direct appeal of a criminal conviction. Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), followed.


SILVA-TREVINO, 26 I&N Dec. 550 (A.G. 2015)

ID 3833 (PDF)

The Attorney General vacated the opinion in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).


SIMEIO SOLUTIONS, LLC, 26 I&N Dec. 542 (AAO 2015)

ID 3832 (PDF)

(1) A change in the place of employment of a beneficiary to a geographical area requiring a corresponding Labor Condition Application for Nonimmigrant Workers (“LCA”) be certified to the U.S. Department of Homeland Security with respect to that beneficiary may affect eligibility for H-1B status; it is therefore a material change for purposes of 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).

(2) When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H-1B petition with the corresponding LCA.


CHRISTO’S, INC., 26 I&N Dec. 537 (AAO 2015)

ID 3831 (PDF)

(1) An alien who submits false documents representing a nonexistent or fictitious marriage, but who never either entered into or attempted or conspired to enter into a marriage, may intend to evade the immigration laws but is not, by such act alone, considered to have “entered into” or “attempted or conspired to enter into” a marriage for purposes of section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (2012). Matter of Concepcion, 16 I&N Dec. 10 (BIA 1976), followed.

(2) Misrepresentations relating to a nonexistent marriage may render the beneficiary inadmissible under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2012), when the Director adjudicates the application for adjustment of status.


LEACHENG INTERNATIONAL, INC., 26 I&N Dec. 532 (AAO 2015)

ID 3830 (PDF)

(1) The definition of “doing business” at 8 C.F.R. § 204.5(j)(2) (2014) contains no requirement that a petitioner for a multinational manager or executive must provide goods and or services to an unaffiliated third party.

(2) A petitioner may establish that it is “doing business” by demonstrating that it is providing goods and/or services in a regular, systematic, and continuous manner to related companies within its multinational organization.


CERDA REYES, 26 I&N Dec. 528 (BIA 2015)

ID 3829 (PDF)

The rules for applying for a bond redetermination at 8 C.F.R. § 1003.19(c) (2014) relate to venue, not jurisdiction.


L-A-C-, 26 I&N Dec. 516 (BIA 2015)

ID 3828 (PDF)

(1) Where an Immigration Judge finds that an applicant for asylum or withholding of removal has not provided reasonably available corroborating evidence to establish his claim, the Immigration Judge should first consider the applicant’s explanations for the absence of such evidence and, if a continuance is requested, determine whether there is good cause to continue the proceedings for the applicant to obtain the evidence.

(2) Although an Immigration Judge should consider an applicant’s explanation for the absence of corroborating evidence, section 208(b)(1)(B)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(B)(ii) (2012), does not require the Immigration Judge to identify the specific evidence necessary to meet the applicant’s burden of proof and to provide an automatic continuance for the applicant to obtain that evidence prior to rendering a decision on the application.


VIDES CASANOVA, 26 I&N Dec. (BIA 2015)

ID 3827 (PDF)

The respondent is removable under section 237(a)(4)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(4)(D) (2012), where the totality of the record supported the conclusion that, through his “command responsibility” in his role as Director of the Salvadoran National Guard and as Minister of Defense of El Salvador, he participated in the commission of particular acts of torture and extrajudicial killing of civilians in El Salvador, in that they took place while he was in command, he was aware of these abuses during or after the fact, and through both his personal interference with investigations and his inaction, he did not hold the perpetrators accountable.


CROSS, 26 I&N Dec. 485 (BIA 2015)

ID 3826 (PDF)

A person born out of wedlock may qualify as a legitimated “child” of his or her biological parents under section 101(c)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1101(c)(1) (2012), for purposes of citizenship if he or she was born in a country or State that has eliminated all legal distinctions between children based on the marital status of their parents or had a residence or domicile in such a country or State (including a State within the United States), if otherwise eligible. Matter of Hines, 24 I&N Dec. 544 (BIA 2008), and Matter of Rowe, 23 I&N Dec. 962 (BIA 2006), overruled in part. Matter of Clahar, 18 I&N Dec. 1 (BIA 1981), and Matter of Goorahoo, 20 I&N Dec. 782 (BIA 1994), reaffirmed.


CHAIREZ, 26 I&N Dec. 478 (BIA 2015)

ID 3825 (PDF)

(1) With respect to aggravated felony convictions, Immigration Judges must follow the law of the circuit court of appeals in whose jurisdiction they sit in evaluating issues of divisibility, so the interpretation of Descamps reflected in Matter of Chairez, 26 I&N Dec. 349 (BIA 2014), applies only insofar as there is no controlling authority to the contrary in the relevant circuit.

(2) Because the United States Court of Appeals for the Tenth Circuit has taken an approach to divisibility different from that adopted in Matter of Chairez, the law of the Tenth Circuit must be followed in that circuit.


ESQUIVEL-QUINTANA, 26 I&N Dec. 469 (BIA 2015)

ID 3824 (PDF)

(1) For a statutory rape offense that may include a 16- or 17-year-old victim to be categorically “sexual abuse of a minor” under section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2012), the statute must require a meaningful age differential between the victim and the perpetrator. Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999), and Matter of V-F-D-, 23 I&N Dec. 859 (BIA 2006), clarified.

(2) The offense of unlawful intercourse with a minor in violation of section 261.5(c) of the California Penal Code, which requires that the minor victim be “more than three years younger” than the perpetrator, categorically constitutes “sexual abuse of a minor” and is therefore an aggravated felony under section 101(a)(43)(A) of the Act.


O. A. HERNANDEZ, 26 I&N Dec. 464 (BIA 2015)

ID 3823 (PDF)

The offense of “deadly conduct” in violation of section 22.05(a) of the Texas Penal Code, which punishes a person who “recklessly engages in conduct that places another in imminent danger of serious bodily injury,” is categorically a crime involving moral turpitude.


VELASQUEZ-CRUZ, 26 I&N Dec. 458 (BIA 2014)

ID 3822 (PDF)

An alien’s departure from the United States following a criminal conviction for illegal entry under section 275(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1325(a)(1) (2012), interrupts the 10-year period of continuous physical presence required to establish eligibility for cancellation of removal under section 240A(b)(1) of the Act, 8 U.S.C. § 1229b(b)(1) (2012).


UNITED FARM WORKERS FOUNDATION, 26 I&N Dec. 454 (BIA 2014)

ID 3821 (PDF)

A recognized organization need only apply for its representative’s accreditation at one location, and if approved, that representative may thereafter practice at any branch location of the organization that has been recognized by the Board of Immigration Appeals. Matter of EAC, Inc., 24 I&N Dec. 563 (BIA 2008), modified.


AYUDA, 26 I&N Dec. 449 (BIA 2014)

ID 3820 (PDF)

When assessing an organization’s application for recognition, the Board of Immigration Appeals makes an individualized determination whether the applicant’s fees qualify as “nominal charges” and whether its fee structure is true to the goal of providing competent low-cost legal services. Matter of American Paralegal Academy, Inc., 19 I&N Dec. 386 (BIA 1986), clarified.


ST. FRANCIS CABRINI IMMIGRATION LAW CENTER, 26 I&N Dec. 445 (BIA 2014)

ID 3819 (PDF)

Where an organization is physically colocated or financially associated with, or otherwise attached to, a for-profit venture, the Board of Immigration Appeals will not approve an application for recognition unless it is confident that the organization will not be influenced, either explicitly or implicitly, by the pecuniary interests of the commercial affiliate.


BETT, 26 I&N Dec. 437 (BIA 2014)

ID 3818 (PDF)

A Form I-9 (Employment Eligibility Verification) is admissible in immigration proceedings to support charges of removability against an alien and to determine his or her eligibility for relief from removal.


MUNROE, 26 I&N Dec. 428 (BIA 2014)

ID 3817 (PDF)

For purposes of establishing an alien’s eligibility for a waiver under section 216(c)(4)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1186a(c)(4)(A) (2012), the relevant period for determining whether an alien’s removal would result in extreme hardship is the 2-year period for which the alien was admitted as a conditional permanent resident.


PINA-GALINDO, 26 I&N Dec. 423 (BIA 2014)

ID 3816 (PDF)

An alien is ineligible for cancellation of removal under section 240A(b)(1)(C) of the
Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(C) (2012), if he or she falls
within the scope of section 212(a)(2)(B) of the Act, 8 U.S.C. § 1182(a)(2)(B) (2012), as
having been convicted of two or more offenses for which the aggregate sentences
imposed were 5 years or more.


FERREIRA, 26 I&N Dec. 415 (BIA 2014)

ID 3815 (PDF)

Where a State statute on its face covers a controlled substance not included in the Federal controlled substances schedules, there must be a realistic probability that the State would prosecute conduct under the statute that falls outside the generic definition of the removable offense to defeat a charge of removability under the categorical approach.


DOMINGUEZ-RODRIGUEZ, 26 I&N Dec. 408 (BIA 2014)

ID 3814 (PDF)

For purposes of section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2012), the phrase “a single offense involving possession for one’s own use of thirty grams or less of marijuana” calls for a circumstance-specific inquiry into the character of the alien’s unlawful conduct on a single occasion, not a categorical inquiry into the elements of a single statutory crime. Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), distinguished. Matter of Davey, 26 I&N Dec. 37 (BIA 2012), reaffirmed.


PAEK, 26 I&N Dec. 403 (BIA 2014)

ID 3813 (PDF)

An alien who was admitted to the United States at a port of entry as a conditional
permanent resident pursuant to section 216(a) of the Immigration and Nationality Act,
8 U.S.C. § 1186a(a) (2012), is an alien “lawfully admitted for permanent residence” who
is barred from establishing eligibility for a waiver of inadmissibility under section 212(h)
of the Act, 8 U.S.C. § 1182(h) (2012), if he or she was subsequently convicted of an
aggravated felony.


HERNANDEZ, 26 I&N Dec. 397 (BIA 2014)

ID 3812 (PDF)

Malicious vandalism in violation of section 594(a) of the California Penal Code with a gang enhancement under section 186.22(d) of the California Penal Code, which requires that the underlying offense be committed for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members, is categorically a crime involving moral turpitude.


A-R-C-G-, 26 I&N Dec. 388 (BIA 2014)

ID 3811 (PDF)

Depending on the facts and evidence in an individual case, “married women in Guatemala who are unable to leave their relationship” can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal under sections 208(a) and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(a) and 1231(b)(3) (2012).


C-C-I-, 26 I&N Dec. 375 (BIA 2014)

ID 3810 (PDF)

(1) Reopening of removal proceedings for a de novo hearing to consider termination of an alien’s deferral of removal pursuant to 8 C.F.R. § 1208.17(d)(1) (2014), is warranted where the Government presents evidence that was not considered at the previous hearing if it is relevant to the possibility that the alien will be tortured in the country to which removal has been deferred.

(2) The doctrine of collateral estoppel does not prevent an Immigration Judge from reevaluating an alien’s credibility in light of additional evidence presented at a hearing under 8 C.F.R. § 1208.17(d)(3).


L-G-H-, 26 I&N Dec. 365 (BIA 2014)

ID 3809 (PDF)

Sale of a controlled substance in violation of section 893.13(1)(a)(1) of the Florida Statutes, which lacks a mens rea element with respect to the illicit nature of the substance but requires knowledge of its presence and includes an affirmative defense for ignorance of its unlawful nature, is an “illicit trafficking” aggravated felony under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2012).


M-L-M-A-, 26 I&N Dec. 360 (BIA 2014)

ID 3808 (PDF)

(1) Because an application for special rule cancellation of removal under section 240A(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(2) (2006), is a continuing one, false testimony given by the respondent more than 3 years prior to the entry of a final administrative order should not be considered in determining whether she is barred from establishing good moral character under section 101(f)(6) of the Act, 8 U.S.C. § 1101(f)(6) (2006). Matter of Garcia, 24 I&N Dec. 179 (BIA 2007), and Matter of Ortega-Cabrera, 23 I&N Dec. 793 (BIA 2005), followed.

(2) Although the respondent was divorced from her abusive husband and subsequently had a long-term relationship with another man, she had not previously been granted special rule cancellation of removal based on her abusive marriage and had significant equities that merited a favorable exercise of discretion. Matter of A-M-, 25 I&N Dec. 66 (BIA 2009), distinguished.


CHAIREZ, 26 I&N Dec. 349 (BIA 2014)

ID 3807 (PDF)

(1) The categorical approach, which requires a focus on the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction, is employed to determine whether the respondent’s conviction for felony discharge of a firearm under section 76-10-508.1 of the Utah Code is for a crime of violence aggravated felony or a firearms offense under the Immigration and Nationality Act. Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), followed.

(2) The Department of Homeland Security did not meet its burden of establishing the respondent’s removability as an alien convicted of an aggravated felony where it did not show that section 76-10-508.1 of the Utah Code was divisible with respect to the mens rea necessary to constitute a crime of violence. Descamps v. United States, 133 S. Ct. 2276 (2013), followed. Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012), withdrawn.

(3) Where the respondent did not demonstrate that he or anyone else was successfully prosecuted for discharging an “antique firearm” under section 76-10-508.1 of the Utah Code, which contains no exception for “antique firearms” as defined by 18 U.S.C. § 921(a)(16) (2012), the statute was not shown to be categorically overbroad relative to section 237(a)(2)(C) of the Act, 8 U.S.C. § 1227(a)(2)(C) (2012). Matter of Mendez-Orellana, 25 I&N Dec. 254 (BIA 2010), clarified.


G-G-S-, 26 I&N Dec. 339 (BIA 2014)

ID 3806 (PDF)

An alien’s mental health as a factor in a criminal act falls within the province of the criminal courts and is not considered in assessing whether the alien was convicted of a “particularly serious crime” for immigration purposes.


P-S-H-, 26 I&N Dec. 329 (BIA 2014)

ID 3805 (PDF)

To terminate a grant of asylum pursuant to 8 C.F.R. § 1208.24 (2013), the Department of Homeland Security must establish, by a preponderance of the evidence, that (1) there was fraud in the alien’s asylum application and (2) the fraud was such that the alien was not eligible for asylum at the time it was granted; however, proof that the alien knew of the fraud in the application is not required in order to satisfy the first criterion. Matter of A-S-J-, 25 I&N Dec. 893 (BIA 2012), clarified.


DUARTE-LUNA and LUNA, 26 I&N Dec. 325 (BIA 2014)

ID 3804 (PDF)

A parent’s continuous physical presence and continuous residence in the United States
cannot be imputed to a child for purposes of establishing the child’s eligibility for
Temporary Protected Status.


E-F-H-L-, 26 I&N Dec. 319 (BIA 2014)

ID 3803 (PDF)

In the ordinary course of removal proceedings, an applicant for asylum or for withholding or deferral of removal is entitled to a hearing on the merits of those applications, including an opportunity to provide oral testimony and other evidence, without first having to establish prima facie eligibility for the requested relief. Matter of Fefe, 20 I&N Dec. 116 (BIA 1989), followed.


JACKSON AND ERANDIO, 26 I&N Dec. 314 (BIA 2014)

ID 3802 (PDF)

Section 402(a)(2) of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L.
No. 109-248, 120 Stat. 587, 622, which bars the approval of a family-based visa petition
filed by a petitioner who has been convicted of a “specified offense against a minor” and
has not shown that he poses “no risk” to the beneficiary, does not have an impermissible
retroactive effect when applied to convictions that occurred before its enactment.


INTROCASO, 26 I&N Dec. 304 (BIA 2014)

ID 3801 (PDF)

(1) In a visa petition case involving the Adam Walsh Child Protection and Safety Act of
2006, Pub. L. No. 109-248, 120 Stat. 587, the petitioner bears the burden of proving
that he has not been convicted of a “specified offense against a minor.”

(2) In assessing whether a petitioner has been convicted of a “specified offense against a
minor,” adjudicators may apply the “circumstance-specific” approach, which permits
an inquiry into the facts and conduct underlying the conviction to determine if it is for
a disqualifying offense.


ACEIJAS-QUIROZ, 26 I&N Dec. 294 (BIA 2014)

ID 3800 (PDF)

In adjudicating cases involving the Adam Walsh Child Protection and Safety Act of
2006, Pub. L. No. 109-248, 120 Stat. 587, the Board of Immigration Appeals lacks
jurisdiction to review a “no risk” determination by the United States Citizenship and
Immigration Services, including the appropriate standard of proof to be applied.


SIERRA, 26 I&N Dec. 288 (BIA 2014)

ID 3799 (PDF)

Under the law of the United States Court of Appeals for the Ninth Circuit, the offense of attempted possession of a stolen vehicle in violation of sections 193.330 and 205.273 of the Nevada Revised Statutes, which requires only a mental state of “reason to believe,” is not categorically an aggravated felony “theft offense (including receipt of stolen property)” under sections 101(a)(43)(G) and (U) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(G) and (U) (2012).


C-J-H-, 26 I&N Dec. 284 (BIA 2014)

ID 3798 (PDF)

An alien whose status has been adjusted from asylee to lawful permanent resident cannot subsequently readjust status under section 209(b) of the Immigration and Nationality Act, 8 U.S.C. § 1159(b) (2012).


CHAVEZ-ALVAREZ, 26 I&N Dec. 274 (BIA 2014)

ID 3797 (PDF)

(1) Adjustment of status constitutes an “admission” for purposes of determining an alien’s removability under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien convicted of an aggravated felony “at any time after admission.”

(2) An element listed in a specification in the Manual for Courts-Martial (“MCM”) must be pled and proved beyond a reasonable doubt and thus is the functional equivalent of an “element” of a criminal offense for immigration purposes.

(3) The crime of sodomy by force in violation of article 125 of the Uniform Code of Military Justice, 10 U.S.C. § 925 (2000), and the Punitive Articles of the MCM relating to sodomy, is a crime of violence under 18 U.S.C. § 16 (2012) within the definition of an aggravated felony under section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F)(2012).


ABDELGHANY, 26 I&N Dec. 254 (BIA 2014)

ID 3796 (PDF)

(1) A lawful permanent resident who has accrued 7 consecutive years of lawful unrelinquished domicile in the United States and who is removable or deportable by virtue of a plea or conviction entered before April 24, 1996, is eligible to apply for discretionary relief under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), unless: (1) the applicant is subject to the grounds of inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act, 8 U.S.C. §§ 1182(a)(3)(A), (B), (C), or (E), or (10)(C) (2012); or (2) the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996.

(2) A lawful permanent resident who has accrued 7 consecutive years of lawful unrelinquished domicile in the United States and who is removable or deportable by virtue of a plea or conviction entered between April 24, 1996, and April 1, 1997, is eligible to apply for discretionary relief from removal or deportation under former section 212(c) of the Act unless: (1) the applicant’s removal or deportation proceedings commenced on or after April 24, 1996, and the conviction renders the applicant removable or deportable under one or more of the deportability grounds enumerated in section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1277 (as amended); or (2) the applicant is subject to the grounds of inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act; or (3) the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996.

(3) A lawful permanent resident who is otherwise eligible for relief under former section 212(c) of the Act may apply for such relief in removal or deportation proceedings without regard to whether the relevant conviction resulted from a plea agreement or a trial and without regard to whether he or she was removable or deportable under the law in effect when the conviction was entered.

M-E-V-G-, 26 I&N Dec. 227 (BIA 2014)

ID 3795 (PDF)

(1) In order to clarify that the “social visibility” element required to establish a cognizable “particular social group” does not mean literal or “ocular” visibility, that element is renamed as “social distinction.” Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008); Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008); Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA 2007); and Matter of C-A-, 23 I&N Dec. 951 (BIA 2006), clarified.

(2) An applicant for asylum or withholding of removal seeking relief based on “membership in a particular social group” must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.

(3) Whether a social group is recognized for asylum purposes is determined by the perception of the society in question, rather than by the perception of the persecutor.


W-G-R-, 26 I&N Dec. 208 (BIA 2014)

ID 3794 (PDF)

(1) In order to clarify that the “social visibility” element required to establish a cognizable “particular social group” does not mean literal or “ocular” visibility, that element is renamed as “social distinction.” Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008); Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008); Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA 2007); and Matter of C-A-, 23 I&N Dec. 951 (BIA 2006), clarified.

(2) An applicant for asylum or withholding of removal seeking relief based on “membership in a particular social group” must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.

(3) An applicant has the burden of demonstrating not only the existence of a cognizable particular social group and his membership in that particular social group, but also a risk of persecution “on account of” his membership in that group.

(4) The respondent did not establish that “former members of the Mara 18 gang in El Salvador who have renounced their gang membership” constitute a “particular social group” or that there is a nexus between the harm he fears and his status as a former gang member.


OPPEDISANO, 26 I&N Dec. 202 (BIA 2013)

ID 3793 (PDF)

The offense of unlawful possession of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g) (2006) is an aggravated felony under section 101(a)(43)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(E)(ii) (2012).


DOUGLAS, 26 I&N Dec. 197 (BIA 2013)

ID 3792 (PDF)

A child who has satisfied the statutory conditions of former section 321(a) of the Immigration and Nationality Act, 8 U.S.C. § 1432(a) (2000), before the age of 18 years has acquired United States citizenship, regardless of whether the naturalized parent acquired legal custody of the child before or after the naturalization. Matter of Baires, 24 I&N Dec. 467 (BIA 2008), followed. Jordon v. Attorney General of U.S., 424 F.3d 320 (3d Cir. 2005), not followed.

PINZON, 26 I&N Dec. 189 (BIA 2013)

ID 3791 (PDF)

(1) An alien who enters the United States by falsely claiming United States citizenship is not deemed to have been inspected by an immigration officer, so the entry is not an “admission” under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A) (2012).

(2) The offense of knowingly and willfully making any materially false, fictitious, or fraudulent statement to obtain a United States passport in violation of 18 U.S.C. § 1001(a)(2) (2006) is a crime involving moral turpitude.


ESTRADA, 26 I&N Dec. 180 (BIA 2013)

ID 3790 (PDF)

A spouse or child accompanying or following to join a principal grandfathered alien cannot qualify as a derivative grandfathered alien for purposes of section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), by virtue of a spouse or child relationship that arose after April 30, 2001.


TAVAREZ PERALTA, 26 I&N Dec. 171 (BIA 2013)

ID 3789 (PDF)

(1) An alien convicted of violating 18 U.S.C. § 32(a)(5) (2006), who interfered with a police helicopter pilot by shining a laser light into the pilot’s eyes while he operated the helicopter, is removable under section 237(a)(4)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(4)(A)(ii) (2006), as an alien who has engaged in criminal activity that endangers public safety.

(2) A violation of 18 U.S.C. § 32(a)(5) is not a crime of violence under 18 U.S.C. § 16 (2006).


J-G-, 26 I&N Dec. 161 (BIA 2013)

ID 3788 (PDF)

(1) An alien who is subject to an in absentia removal order need not first rescind the order before seeking reopening of the proceedings to apply for asylum and withholding of removal based on changed country conditions arising in the country of the alien’s nationality or the country to which removal has been ordered.

(2) The numerical limitations on filing a motion to reopen in 8 C.F.R. § 1003.23(b)(1)(2013) are not applicable to an alien seeking reopening to apply for asylum and withholding of removal based on changed country conditions arising in the country of the alien’s nationality or the country to which removal has been ordered.


ZELENIAK, 26 I&N Dec. 158 (BIA 2013)

ID 3787 (PDF)

Section 3 of the Defense of Marriage Act, Pub. L. No. 104 199, 110 Stat. 2419, 2419 (1996), is no longer an impediment to the recognition of lawful same-sex marriages and spouses under the Immigration and Nationality Act if the marriage is valid under the laws of the State where it was celebrated.


FLORES, 26 I&N Dec. 155 (BIA 2013)

ID 3786 (PDF)

The offense of traveling in interstate commerce with the intent to distribute the proceeds of an unlawful drug enterprise in violation of 18 U.S.C. § 1952(a)(1)(A) (2006) is not an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2006), because it is neither a “drug trafficking crime” under 18 U.S.C. § 924(c) (2006) nor “illicit trafficking in a controlled substance.” Matter of Davis, 20 I&N Dec. 536 (BIA 1992), followed.


V-X-, 26 I&N Dec. 147 (BIA 2013)

ID 3785 (PDF)

(1) A grant of asylum is not an “admission” to the United States under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A)(2006).

(2) When termination of an alien’s asylum status occurs in conjunction with removal proceedings pursuant to 8 C.F.R. § 1208.24 (2013), the Immigration Judge should ordinarily make a threshold determination regarding the termination of asylum status before resolving issues of removability and eligibility for relief from removal.

(3) An adjudication of “youthful trainee” status pursuant to section 762.11 of the Michigan Compiled Laws is a “conviction” under section 101(a)(48)(A) of the Act because such an adjudication does not correspond to a determination of juvenile delinquency under the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042 (2006). Matter of Devison, 22 I&N Dec. 1362 (BIA 2000), followed.


E-S-I-, 26 I&N Dec. 136 (BIA 2013)

ID 3784 (PDF)

(1) Where the indicia of a respondent’s incompetency are manifest, the Department of Homeland Security (“DHS”) should serve the notice to appear on three individuals: (1) a person with whom the respondent resides, who, when the respondent is detained in a penal or mental institution, will be someone in a position of demonstrated authority in the institution or his or her delegate and, when the respondent is not detained, will be a responsible party in the household, if available; (2) whenever applicable or possible, a relative, guardian, or person similarly close to the respondent; and (3) in most cases, the respondent.

(2) If the DHS did not properly serve the respondent where indicia of incompetency were either manifest or arose at a master calendar hearing that was held shortly after service of the notice to appear, the Immigration Judge should grant a continuance to give the DHS time to effect proper service.

(3) If indicia of incompetency become manifest at a later point in the proceedings and the Immigration Judge determines that safeguards are needed, he or she should
evaluate the benefit of re-serving the notice to appear in accordance with 8 C.F.R. §§ 103.8(c)(2)(i) and (ii) (2013) as a safeguard.


RIVAS, 26 I&N Dec. 130 (BIA 2013)

ID 3783 (PDF)

A waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2006), is not available on a “stand-alone” basis to an alien in removal proceedings without a concurrently filed application for adjustment of status, and a waiver may not be granted nunc pro tunc to avoid the requirement that the alien must establish eligibility for adjustment.


OTIENDE, 26 I&N Dec. 127 (BIA 2013)

ID 3782 (PDF)

Although a visa petition filed by a petitioner for a spouse may be subject to denial under section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (2006), based on the spouse’s prior marriage, that section does not prevent the approval of a petition filed on behalf of the spouse’s child, which must be considered on its merits to determine whether the child qualifies as the petitioner’s “stepchild” under the Act.


MONTOYA-SILVA, 26 I&N Dec. 123 (BIA 2013)

ID 3781 (PDF)

A parent’s lawful permanent resident status and residence in the United States cannot be imputed to an unemancipated minor for purposes of establishing the child’s eligibility for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2006). Matter of Escobar, 24 I&N Dec. 231 (BIA 2007); and Matter of Ramirez-Vargas, 24 I&N Dec. 599 (BIA 2008), reaffirmed.


B-R-, 26 I&N Dec. 119 (BIA 2013)

ID 3780 (PDF)

An alien who is a citizen or national of more than one country but has no fear of persecution in one of those countries does not qualify as a “refugee” under section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2006), and is ineligible for asylum.


BUTT, 26 I&N Dec.108 (BIA 2013)

ID 3779 (PDF)

(1) For purposes of establishing eligibility for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), an alien seeking to be"grandfathered" must be the beneficiary of an application for labor certification that was "approvable when filed."

(2) An alien will be presumed to be the beneficiary of a "meritorious in fact" labor certification if the application was "properly filed" and "non-frivolous" and if no apparent bars to approval of the labor certification existed at the time it was filed.


CENTRAL CALIFORNIA LEGAL SERVICES, INC., 26 I&N Dec. 105 (BIA 2013)

ID 3778 (PDF)

A recognized organization’s application for initial accreditation of a proposed representative must show that the individual has recently completed at least one formal training course that was designed to give new practitioners a solid overview of the fundamentals of immigration law and procedure.


ORTEGA-LOPEZ, 26 I&N Dec. 99 (BIA 2013)

ID 3777 (PDF)

The offense of sponsoring or exhibiting an animal in an animal fighting venture in violation of 7U.S.C. § 2156(a)(1) (2006) is categorically a crime involvingmoral turpitude.


G-K-, 26 I&N Dec. 88 (BIA 2013)

ID 3776 (PDF)

(1) The United Nations Convention Against Transnational Organized Crime, Nov. 15, 2000, 2225 U.N.T.S. 209 (“UNTOC”), which is intended to help protect witnesses of transnational organized crime from retaliation and intimidation, does not provide an independent basis for relief from removal in immigration proceedings.

(2) The objectives of the UNTOC are advanced in the United States through existing immigration laws and regulations, including the S, T, and U nonimmigrant visas and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAORSupp.No. 51, at 197,U.N.Doc.A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988).

(3) The Board of Immigration Appeals and the Immigration Judges do not have the authority to rule on the constitutionality of the statutes they administer and therefore lack jurisdiction to address a claimthat the statute barring relief for particularly serious crimes is void for vagueness.


CORTES MEDINA, 26 I&N Dec. 79 (BIA 2013)

ID 3775 (PDF)

The offense of indecent exposure in violation of section 314(1) of the California Penal Code, which includes the element of lewd intent, is categorically a crime involving moral turpitude.


SANCHEZ-LOPEZ, 26 I&N Dec. 71 (BIA 2012)

ID 3774 (PDF)

The offense of stalking in violation of section 646.9 of the California Penal Code is “a crime of stalking” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006).


VALENZUELA-FELIX, 26 I&N Dec. 53 (BIA 2012)

ID 3773 (PDF)

When theDepartment ofHomeland Security paroles a returning lawful permanent resident for prosecution, it need not have all the evidence to sustain its burden of proving that the alien is an applicant for admission but may ordinarily rely on the results of a subsequent prosecution to meet that burden in later removal proceedings.


M-H-, 26 I&N Dec. 46 (BIA 2012)

ID 3772 (PDF)

The holding in Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007), that an offense need not be an aggravated felony to be considered a particularly serious crime for purposes of barring asylum or withholding of removal, should be applied to cases within the jurisdiction of the United States Court of Appeals for the Third Circuit.


SANCHEZ-HERBERT, 26 I&N Dec. 43 (BIA 2012)

ID 3771 (PDF)

Where an alien fails to appear for a hearing because he has departed the United States, termination of the pending proceedings is not appropriate if the alien received proper notice of the hearing and is removable as charged.


DAVEY, 26 I&N Dec. 37 (BIA 2012)

ID 3770 (PDF)

(1) For purposes of section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8U.S.C. § 1227(a)(2)(B)(i) (2006), the phrase “a single offense involving possession for one’s own use of thirty grams or less of marijuana” calls for a circumstance-specific inquiry into the character of the alien’s unlawful conduct on a single occasion, not a categorical inquiry into the elements of a single statutory crime.

(2) An alien convicted of more than one statutory crime may be covered by the exception to deportability for an alien convicted of “a single offense involving possession for one’s own use of thirty grams or less ofmarijuana” if all the alien’s crimeswere closely related to or connected with a single incident in which the alien possessed 30 grams or less of marijuana for his or her own use, provided that none of those crimeswas inherently more serious than simple possession.


M-Z-M-R-, 26 I&N Dec. 28 (BIA 2012)

ID 3769 (PDF)

(1) In assessing an asylum applicant’s ability to internally relocate, an Immigration Judge must determine whether the applicant could avoid future persecution by relocating to another part of the applicant’s country of nationality and whether, under all the circumstances, it would be reasonable to expect the applicant to do so.

(2) For an applicant to be able to internally relocate safely, there must be an area of the country where the circumstances are substantially better than those giving rise to a well-founded fear of persecution on the basis of the original claim.

(3) If an applicant is able to internally relocate, an Immigration Judge should balance the factors identified at 8 C.F.R. § 1208.13(b)(3) (2012) in light of the applicable burden of proof to determine whether it would be reasonable under all the circumstances to expect the applicant to relocate.


LEAL, 26 I&N Dec. 20 (BIA 2012)

ID 3768 (PDF)

The offense of “recklessly endangering another person with a substantial risk of imminent death” in violation of section 13-1201(A) of the Arizona Revised Statutes is categorically a crime involving moral turpitude under the definition in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), even though Arizona law defines recklessness to encompass a subjective ignorance of risk resulting from voluntary intoxication.


Y-N-P-, 26 I&N Dec. 10 (BIA 2012)

ID 3767 (PDF)

An applicant for special rule cancellation of removal under section 240A(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(2) (2006), cannot utilize a waiver of inadmissibility under section 212(h) of the Act, 8 U.S.C. § 1182(h) (2006), to overcome the section 240A(b)(2)(A)(iv) bar resulting from inadmissibility under section 212(a)(2).


E-A-, 26 I&N Dec. 1 (BIA 2012)

ID 3766 (PDF)

(1) In assessing whether there are serious reasons for believing that an applicant for asylum or withholding of removal has committed a serious nonpolitical crime, an Immigration Judge should balance the seriousness of the criminal acts against the political aspect of the conduct to determine whether the criminal nature of the acts outweighs their political character.

(2) When considered together, the applicant’s actions as a member of a group that burned passenger buses and cars, threwstones, and disrupted the economic activity of merchants in the market, while pretending to be from the opposition party, reached the level of serious criminal conduct that, when weighed against its political nature, constituted a serious nonpolitical crime.



BIA Precedent Decisions Volume 26 (2012-2014) Executive Office for Immigration Review

Posted in 26 I&N Dec. 415 (BIA 2014), BIA, BIA Precedent Decisions, BIA Precedent Decisions Volume 25, BIA Precedent Decisions Volume 26, BIA Precedent Decisions Volume 26 (2012-2017), BIA Precedent Decisions Volume 27 (2017-) Executive Office for Immigration Review, BIA PRECEDENT TABLE, BIA Precedent Table-1995 to Present, Board of Immigration Appeals, Executive Office for Immigration Review | Tagged | Leave a comment

CA7 affirms BIA denial of Asylum, declined remand because no evidence presented to show that new claim was previously unavailable

Barragan-Ojeda v. Sessions, No. 16-2964 (7th Cir. 2017)

Barragan‐Ojeda, an 18-year-old citizen of Mexico, entered the U.S. without authorization in 2013. He was apprehended at the border and requested asylum. Before an immigration judge, he claimed that a Mexican criminal gang had persecuted him. He mentioned that he had been the victim of employment discrimination because he was effeminate, but denied that he was gay. The IJ denied asylum. On appeal to the Board of Immigration Appeals, Barragan‐Ojeda filed an affidavit asserting that he was gay and that he had been persecuted because of his sexual orientation. The Board affirmed the denial of asylum on the ground asserted in the original application. With respect to the new ground, the Board declined to remand. The Seventh Circuit denied a petition for review. Barragan‐Ojeda’s due process challenge was not presented to the Board and, in any event, the record did not indicate that the IJ’s conduct of the hearing evinced the kind of impatience and bias that might be characterized as a due process violation. The Board correctly evaluated the new evidence submitted by Barragan‐Ojeda under the standards applicable to a reopening and correctly denied relief because he submitted no evidence to establish that his new claim was previously unavailable.

Download Barragan-Ojeda v. Sessions, No. 16-2964 (7th Cir. 2017)16-2964-2017-04-05 (PDF)

____________________________________________
JUAN CARLOS BARRAGAN-OJEDA, Petitioner,
v.
JEFF SESSIONS, Attorney General of the United States, Respondent.
No. 16-2964.

United States Court of Appeals, Seventh Circuit.
Argued December 1, 2016.
Decided April 5, 2017.

Suzanne Nicole Nardone, for Respondent.

Carlos Alberto Quichiz, for Petitioner.

Petition for Review of an Order of the Board of Immigration Appeals, No. A206-516-229.

Before POSNER, RIPPLE, and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

Juan Carlos Barragan-Ojeda, a native and citizen of Mexico, entered the United States without authorization in 2013. He was apprehended at the border and requested asylum. Appearing pro se before the immigration judge (“IJ”), he claimed eligibility for asylum because a Mexican criminal gang had persecuted him. At the conclusion of his testimony, he briefly mentioned that he had been the victim of discrimination in employment because he was effeminate, but, when questioned by the IJ, he denied that he was gay.

The IJ denied asylum, and Mr. Barragan-Ojeda appealed to the Board of Immigration Appeals (“Board” or “BIA”). There, represented by counsel, Mr. Barragan-Ojeda filed an additional affidavit asserting facts not before the IJ: he claimed that he was gay and that he had been persecuted because of his sexual orientation. The Board adopted and affirmed the IJ’s denial of asylum on the ground asserted in the original application. With respect to the new ground, the Board treated the appeal as a motion to remand and determined that the requirements for such a motion were not satisfied. Mr. Barragan-Ojeda now petitions for review in this court. He submits that the IJ denied him due process in the conduct of the proceedings and that the Board erred in denying him asylum on the basis of his sexual orientation.

We deny the petition for review. Mr. Barragan-Ojeda’s due process challenge is premised on the IJ’s conduct of the hearing; this sort of claim must be presented to the Board before it can be presented here, and Mr. Barragan-Ojeda did not do so. In any event, nothing in the record suggests that the IJ’s conduct of his hearing evinced the kind of impatience and bias that might be characterized as a violation of due process of law.

The Board correctly evaluated the new evidence submitted by Mr. Barragan-Ojeda under the standards applicable to a reopening. It correctly denied relief because he submitted no evidence to establish that his new claim was previously unavailable.

I

BACKGROUND

Mr. Barragan-Ojeda was born in Mexico on March 6, 1995 and entered the United States in July 2013 at age 18. He was apprehended at the border and requested asylum. The Department of Homeland Security (“DHS”) then placed him in removal proceedings. The IJ continued his case for over a year, in part to give him an opportunity to locate an attorney if he wished to be represented in proceedings.[1] On April 23, 2015, Mr. Barragan-Ojeda appeared pro se before the IJ for an individual merits hearing on his asylum claim. His current attorney asserts in his brief that Mr. Barragan-Ojeda made a preliminary, off-the-record request to the IJ for a closed asylum hearing, but that the IJ denied the request. Members of Mr. Barragan-Ojeda’s family were present.

Before the IJ, Mr. Barragan-Ojeda testified, with the assistance of an interpreter, that he had entered the United States in 2013 to “save [his] life,” which was threatened by a large criminal gang in Mexico called the Caballeros Templarios.[2] His family resides in the Mexican state of Michoacán, where they own land and where his father is a farmer and a proprietor of a liquor store. Members of the gang extorted money from his family from 2012 until 2013, when his father refused to continue paying them. At that point, his father “tried to get us out of the town.”[3] Mr. Barragan-Ojeda came to the United States, but his parents elected to stay in the same town in Michoacán. Mr. Barragan-Ojeda stated that after he left Mexico, shots were fired through the windows of his parents’ home. He also claimed that his family members were victims of extortion. When asked if “all businessmen or all people in the area” were similar targets, he replied, “Yes. Yes. They ask for every business you have, for every car you have, for every motorcycle.”[4] His parents had not relocated, he continued, because they “have their whole life there. They have their houses. They have their parcels. They have their land.”[5] His family also had not sought government protection because “the government is also joined in with organized crime.”[6]

Mr. Barragan-Ojeda supported his application with two articles in Spanish discussing the murder of his uncle. When asked, he said that he did not know the circumstances of his uncle’s death. He also submitted a letter from his father. The letter noted that his uncle had been shot to death in their hometown and that the family was in danger and afraid of the police. It also noted, for the first time, that Mr. Barragan-Ojeda had received a phone call in which he had been “threatened that he would be killed.”[7] According to his father, he would be targeted “because he was cooperating with the self-defense groups because he would take . . . food to those that are in the movement.”[8] When asked by the IJ about this statement, Mr. Barragan-Ojeda clarified that, on one occasion, his grandmother had sent plantains to a group of local people opposing the extortion by the gang, and Mr. Barragan-Ojeda had dropped off the box. Afterwards, he received a threatening phone call, likely because gang informants were part of the group.

The IJ began an oral ruling in which he denied Mr. Barragan-Ojeda’s claim on the basis that the harm he faced was too generalized and not tied to a protected ground; specifically, he had not identified a viable social group. Before finishing his ruling, however, the IJ engaged Mr. Barragan-Ojeda in one final exchange:

Q. Sir, is there anything else you want to tell me concerning your fear of going back to Mexico?

A. It’s just that there are many things.

Q. Well, is there any other reason why you fear going back other than what you have told me?

A. What about discrimination for being effeminate?

Q. Well, that doesn’t qualify you for asylum. I mean are you saying that you’ve been mistreated by someone or people discriminate against you because of the way you look?

A. Yes.

Q. But what difficulties have you had?

A. Well, at work, when I would look for work they would tell me that they needed men and not little girls.

Q. I mean do you think, are you a homosexual or not?

A. No.

Q. But you think people perceive you that way.

A. Yes.

[Q.] Well, you left Mexico shortly after graduating high school. The fact that you believe you faced discrimination would not constitute persecution. So I don’t see that you qualify to remain in the United States under the law.[[9]]

The IJ then continued an oral decision in which he noted that Mr. Barragan-Ojeda appeared to be attempting to define his social group as victims of extortion in Mexico, but that this group, defined only by a relationship to the persecutors, was not sufficient under Board precedent. The IJ also examined several other potential social groups, including those who support the self-defense group, or young men from families that had been extorted by criminal gangs, but he determined that these groups were too generalized and that the record was insufficient to establish a connection between these groups and his mistreatment. In the IJ’s view, the primary goal of the violence was extortion, not punishment.

Finally, the IJ turned to his last exchange with Mr. Barragan-Ojeda. He concluded that, although homosexuals are considered a social group for purposes of asylum claims, Mr. Barragan-Ojeda had denied being homosexual and “his limited testimony concerning job prospects because of his appearance does not lead this Court to conclude that he faces a more likely than not chance of persecution on account of being an imputed homosexual.”[10]

Before the Board of Immigrations Appeals, Mr. Barragan-Ojeda, now with the support of retained counsel, submitted an additional one-paragraph statement, the translation of which states, in full:

I was drinking with two drug-trafficking friends who were using cocaine after beginning to molest me and they became enraged because I told them to stop and one of them took a gun and the other started physically abusing me and the other deceived me. I thought I was going to die at this moment and I thought they would kill me and carry me to the river to shut me up. Out of fear I did not tell my father but instead told a friend of mine what had occurred, that I was gay, and that I was frightened because it was dangerous here. If they saw me the next day they were going to wake me up to kill me to ensure that nothing was said about what happened on June 20th[,] 2013. I could not live a normal life in the village and I went on the streets with fear. After the day July 2, 20[1]3, I received a call to carry food to the community police and they told me that I was a dead man for cooperating with the community police who now had called the rural police and federal police. They came to us in the night outside the house of a friend who wanted to obligate to say where they sold drugs to us. We did not know because we did not use them. Also I am afraid to return to Mexico because this guy apparently is involved with politics and he is the ex-hus-band of my aunt, the sister of my father and is a principal member of the rural police who before were called the community police. Also, I do not want to return to Mexico because of the discrimination against people with my sexual appearance.[[11]]

Mr. Barragan-Ojeda also submitted a number of secondary sources, including the State Department Country Report for Mexico, four short news items from the Mexican press about incidents of violence against homosexuals, and one news item about the arrest of a leader of the Caballeros Templarios. Notably, in his brief to the Board, he made only passing reference to the original claims made before the IJ. Instead, he focused on his new claim of rape in his additional statement and on the persecution faced by gay men in Mexico.[12] The brief contends, without citation to record evidence in the form of a statement from Mr. Barragan-Ojeda or otherwise, that Mr. Barragan-Ojeda had not disclosed his sexual orientation at the first hearing because he was not ready to admit it publicly given his youth and inexperience, his upbringing and the rejection of homosexuality in Mexican culture, his shame as a rape victim, his nerves, his lack of counsel, and the presence of members of his family in the courtroom. The brief asserts, again without citation to evidence, that the IJ had denied a request to close the hearing.

The Board denied relief. It first adopted and affirmed the decision of the IJ denying the application for asylum on the grounds originally presented, namely extortion by the Caballeros Templarios. The Board held that Mr. Barragan-Ojeda had not established “that one central reason for the threats of harm by the Caballeros Templarios was on account of his membership in a particular social group or on account of any other protected ground.”[13] The Board further ruled that his “vague testimony that he faced employment discrimination due to his effeminate demeanor also does not establish the basis for an asylum claim.”[14]

The Board then turned to the new evidence submitted with the appeal, noting that Mr. Barragan-Ojeda had claimed “for the first time on appeal that he is a homosexual and was persecuted and fears persecution on account of his status as a homosexual.”[15] The Board noted that, under its precedents, an appeal “that presents a previously unraised basis for relief,” including claims based on a new protected ground or “the same protected ground . . . predicated on a new or substantially different factual basis” rather than one “that merely clarifies or alters the initial claim,” is treated as a “new application.”[16] The sexual orientation and assault basis for the claim was new, the Board concluded, and, therefore, would be treated as a motion to remand to the IJ and assessed under the same standard as a motion to reopen. That standard, found at 8 C.F.R. § 1003.2(c)(1), could be met only if the alien presented evidence that “was not available and could not have been discovered or presented at the former hearing.” The Board concluded that Mr. Barragan-Ojeda had not satisfied this requirement. His appellate brief to the Board claimed that his declaration regarding his sexual orientation and the sexual assault was not presented to the IJ “due to his youth, his lack of representation, and his fear of admitting that he identifies as a homosexual.”[17] The Board noted, however, that Mr. Barragan-Ojeda was “18 years old when he was placed in removal proceedings, was advised of the privilege of being represented by counsel, and proceedings were continued to allow him an opportunity to retain counsel before the merits hearing was held more than a year and a half after he first appeared before the [IJ].”[18] Finally, the Board noted that Mr. Barragan-Ojeda’s affidavit did not address any of these matters.

II

DISCUSSION

In his petition for review to this court, Mr. Barragan-Ojeda repeats the position he took before the Board. He declines to challenge the decision of the IJ and the Board with respect to the extortion and violence his family faced from the Caballeros Templarios. He first asserts various due process challenges to his proceedings before the IJ. He then focuses on the sexual-orientation-based claim that he asserted for the first time on appeal to the Board. More specifically, he contends that the IJ violated his right to due process of law when he denied Mr. Barragan-Ojeda’s off-the-record request for a closed hearing and in the IJ’s conduct of the hearing, especially in the judge’s questioning of Mr. Barragan-Ojeda. He next argues that his sexual orientation disclosure is not “new” evidence, but simply a clarification of his prior testimony. He also maintains that his testimony was credible throughout his proceedings. Finally, he contends that, as a homosexual, he is within a particular social group and has established his eligibility for asylum.

A.

We first examine Mr. Barragan-Ojeda’s claim that he was denied due process of law when the IJ denied his request, made before the record of proceedings was opened, that the proceedings be closed and the gallery be cleared.[19] He also asserts that the IJ subjected him to inappropriate questioning that amounted to a cross-examination.[20]

As the Government’s brief correctly notes, Mr. Barragan-Ojeda did not raise these due process challenges before the Board. “Although due process claims generally do not require exhaustion because the BIA does not have authority to review constitutional challenges, when those issues involve procedural errors correctable by the BIA, applicants must raise such claims as part of their administrative appeal.” Capric v. Ashcroft, 355 F.3d 1075, 1087 (7th Cir. 2004). Because the Board had the authority to correct the kinds of procedural failings asserted in this case,[21] Mr. Barragan-Ojeda was required to raise them in the course of his administrative appeal. We therefore do not consider the substance of these claims.

For the sake of completeness, however, we note that, even if Mr. Barragan-Ojeda had preserved these claims by presenting them to the Board, they would not warrant relief. First, Mr. Barragan-Ojeda has based his claim about the alleged denial of closure of proceedings solely on unsupported assertions in his brief, without citation to any evidence such as a supplemental declaration filed with the Board. Therefore, neither the Board nor this court has any basis for establishing that these off-the-record conversations had occurred.

As to the contention that the IJ took on the role of the Government attorney, Mr. Barragan-Ojeda cites no specific examples of inappropriate comments, interruptions, or anything else similar to IJ conduct we previously have found problematic. The statute specifically allows the IJ to “receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses.” 8 U.S.C. § 1229a(b)(1) (emphasis added). We have found no due process violation when an IJ, using these statutory authorities, merely has taken an active and impartial role in the proceedings. When the IJ does not demonstrate “impatience, hostility, or a predisposition against” an alien’s claim, and where the questions assisted in the development of the record on relevant points, the mere fact that the IJ elicited testimony is not inappropriate and certainly does not raise due process concerns. Hasanaj v. Ashcroft, 385 F.3d 780, 784 (7th Cir. 2004).[22] “An IJ, unlike an Article III judge, is not merely the fact finder and adjudicator but also has an obligation to establish the record.” Id. at 783 (internal quotation marks omitted) (quoting Yang v. McElroy, 277 F.3d 158, 162 (2d Cir. 2002)). Particularly with a pro se respondent such as Mr. Barragan-Ojeda, fair questioning by the IJ often is required to obtain information from the alien necessary for a reasoned decision on the claim. The authority can be misused, and we have not hesitated to grant an alien’s petition where the IJ’s conduct has been hostile or abusive, or has prevented rather than facilitated the creation of an evidentiary record in support of an alien’s claim. See, e.g., Rodriguez Galicia v. Gonzales, 422 F.3d 529, 539 (7th Cir. 2005) (noting frequent interruptions and hostility toward the alien by the IJ); Podio v. I.N.S., 153 F.3d 506, 510 (7th Cir. 1998) (finding a due process violation based on the IJ’s impatience, frequent interruptions, and arbitrary refusal to hear testimony that would have corroborated the alien’s case). Mr. Barragan-Ojeda’s general complaints about the IJ’s conduct simply do not rise to this level. Indeed, we have examined the transcript of the proceedings before the IJ. That record reveals no basis for Mr. Barragan-Ojeda’s contention. The IJ carefully and thoroughly asked him about his claim and explored alternate characterizations of the claim that might allow relief. There is no basis for an allegation of unfairness.

B.

We now consider Mr. Barragan-Ojeda’s contention that he is eligible for asylum on the basis of his sexual orientation and as a victim of sexual assault. These grounds were raised for the first time before the Board and supported there by a short supplemental declaration. The Board treated this matter as a motion to remand or reopen for consideration of new evidence. It relied on its own decision in Matter of M—-A—-F—-, 26 I. & N. Dec. 651 (BIA 2015), which held that an asylum claim “that presents a previously unraised basis for relief,” including one “based on the same protected ground” but “predicated on a new or substantially different factual basis,” is a “new application.” Id. at 655. The Board rejected Mr. Barragan-Ojeda’s argument that he simply was clarifying or slightly altering his claim. Rather, it held that he had presented a new claim that had to be treated as a motion to reopen.[23]

The Board was on solid ground in concluding that the mere prior mention of effeminacy and employment-related discrimination was insufficient to raise within his original claim an entirely new narrative of sexual orientation, sexual assault, and discrimination against gay men in Mexico. Indeed, even if we were to consider the sexual orientation basis to have been raised effectively in the earlier proceeding because of his testimony about effeminacy, his appellate submissions introduce facts “substantially different from those in the earlier application.” Id. at 655. Mr. Barragan-Ojeda’s request for asylum is not simply presented in more detail, it is wholly transformed by the new assertions he made before the Board.

Furthermore, even if his claim before the Board could be characterized as a continuation of the original application, the Board had no authority to evaluate on its own that factual submission. The Board cannot make factual findings in the course of an appeal; the regulations instruct a party seeking to introduce new facts into the evidentiary record to submit a motion to remand.[24] We have acknowledged that such motions, which are “really in the nature of a motion to reopen,” should be evaluated under the substantive standards for reopening set forth in 8 C.F.R. § 1003.2(c)(1). Darinchuluun v. Lynch, 804 F.3d 1208, 1217 (7th Cir. 2015) (quoting Matter of Coelho, 20 I. & N. Dec. 464, 471 (BIA 1992)). The applicable regulations provide, moreover, that a motion “shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1).

In any event, such a motion should be granted only when the “evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” Id. (emphasis added). Finally, in the case of discretionary relief such as asylum, a motion to reopen should not be granted if the ability to seek “relief was fully explained” in the course of earlier proceedings “and an opportunity to apply therefore was afforded at the former hearing, unless the relief is sought on the basis of circumstances that have arisen subsequent to the hearing.” Id.

The Board appropriately concluded that Mr. Barragan-Ojeda’s additional submissions on appeal did not meet the requirements for a motion to remand. Specifically, it correctly ruled that his motion was not “accompanied by evidence which was not available and could not have been discovered or presented at the former hearing.”[25] Counsel’s brief suggested that “his youth, his lack of representation, and his fear of admitting that he identifies as a homosexual” prevented him from presenting the full facts before the IJ.[26] As the Board noted, however, Mr. Barragan-Ojeda’s own supplemental “affidavit d[id] not address his reasons for making this claim for the first time on appeal.”[27] Under these circumstances, the attorney’s assertions about Mr. Barragan-Ojeda’s state of mind before the IJ simply do not suffice to establish that reopening was warranted. See INS v. Phinpathya, 464 U.S. 183, 188 n.6 (1984) (noting that, in request to reopen, “[c]ounsel’s unsupported assertions in respondent’s brief do not establish that respondent could satisfy” the requirements for relief).[28] In short, even if the claim of persecution on the ground of homosexuality had been properly before the Board, it could not have considered that matter; nor could it have remanded the matter for further proceedings before the IJ.

Conclusion

Mr. Barragan-Ojeda has not demonstrated that he was denied due process of law by the IJ’s considering his asylum claim. The Board was on solid ground in evaluating Mr. Barragan-Ojeda’s claim as a motion to remand. His submissions on appeal amounted to a wholesale replacement of his original requests for relief before the IJ, supported by entirely new facts. On the merits of a request for remand, Mr. Barragan-Ojeda created no evidentiary record of his reasons for failing to disclose his sexual orientation claim before the IJ. Without any such evidence, the Board had no basis to conclude that the evidence he sought to introduce on appeal was previously unavailable. The Board therefore did not err in denying a remand to present his new evidence.

PETITION DENIED.

[1] The IJ gave him a list of organizations that could assist him at little or no cost.

[2] A.R. at 249.

[3] Id. at 251 (testimony of Mr. Barragan-Ojeda).

[4] Id.

[5] Id. at 252.

[6] Id.

[7] Id. at 255.

[8] Id.

[9] Id. at 258.

[10] Id. at 219.

[11] Id. at 48.

[12] His briefs to the Board and to this court both also state that he was “castrated” in Mexico, but reference only his testimony regarding discrimination. See Pet’r’s Br. 2. The claim appears, therefore, to be metaphorical.

[13] A.R. at 3.

[14] Id. (citing Kaharudin v. Gonzales, 500 F.3d 619, 623 (7th Cir. 2007), for the principle that discrimination falls short of persecution).

[15] Id. at 4.

[16] Id. (internal quotation marks omitted).

[17] Id. (opinion of the Board).

[18] Id. at 4-5.

[19] See 8 C.F.R. § 1240.11(c)(3)(i) (providing that the IJ “shall inquire” whether the alien requests closure of proceedings and that they are to be “open to the public unless the alien expressly requests” otherwise).

[20] See, e.g., Rodriguez Galicia v. Gonzales, 422 F.3d 529, 538-39 (7th Cir. 2005) (holding that the IJ violated the alien’s right to due process in part by “questioning [that] clearly assume[d] the role of counsel for the Government”).

[21] As we have explained:

Before we can reach most issues, however, the alien is required to raise them before the BIA. The only exception is where the BIA itself would be powerless to address the problem, as might be the case with some fundamental constitutional claims. As we have noted before, however, many due process arguments are based on procedural failings that the BIA is capable of addressing. In those instances, the alien must exhaust his or her remedies at the BIA before bringing the claim before this court.

Feto v. Gonzales, 433 F.3d 907, 912 (7th Cir. 2006) (emphasis added) (citations omitted). The Board would not have been powerless to address the issues raised here. On the desire to testify in a closed hearing, we have held that where “the Board could have addressed” the claim by “remand[ing] the case to the IJ for another hearing,” the failure to exhaust a due process claim is not excused. Lin v. Holder, 630 F.3d 536, 542 n.2 (7th Cir. 2010). We also have acknowledged that claims of bias on the part of the IJ, such as would be evident from inappropriate questioning, are resolvable by the Board in the first instance. Ghaffar v. Mukasey, 551 F.3d 651, 656 (7th Cir. 2008) (“There are literally dozens of Board decisions resolving claims of bias. When bias has been established, the Board has the authority to remand a case for a new hearing before a different IJ, and our research reveals that the BIA has done so on multiple occasions. . . .”). These types of objections relating to the conduct of the hearing are distinguished from those the Board cannot resolve, such as constitutional challenges to statutory or regulatory provisions. See, e.g., Hadayat v. Gonzales, 458 F.3d 659, 665 (7th Cir. 2006).

[22] In Hasanaj v. Ashcroft, 385 F.3d 780, 784 (7th Cir. 2004), we reviewed multiple instances of the IJ questioning the petitioner and noted: “These questions were to develop the record with whatever the Petitioner had to offer for his case. The questions reflect what the IJ still needed to know in order to make a fully informed decision. There are no questions, or group of questions that indicate that this IJ was anything but thorough and fair in his obligation to this Petitioner.”

[23] A.R. at 4 (citing Matter of Ige, 20 I. & N. Dec. 880, 884 (BIA 1994)).

[24] 8 C.F.R. § 1003.1(d)(3)(iv) provides:

Except for taking administrative notice of commonly known facts such as current events or the contents of official documents, the Board will not engage in factfinding in the course of deciding appeals. A party asserting that the Board cannot properly resolve an appeal without further factfinding must file a motion for remand. If further factfinding is needed in a particular case, the Board may remand the proceeding to the immigration judge or, as appropriate, to the Service.

[25] A.R. at 4; see also 8 C.F.R. § 1003.2(c)(1).

[26] Id. (opinion of the Board).

[27] Id. at 4 n.1.

[28] We need not consider, therefore, whether any of the reasons counsel proffers could justify, on the appropriate record, a failure to mention sexual orientation earlier in the removal proceedings. Cf. Moab v. Gonzales, 500 F.3d 656, 661 (7th Cir. 2007) (concluding that, in a credible fear interview, it was “reasonable that [the petitioner] would not have wanted to mention his sexual orientation for fear that revealing this information could cause further persecution as it had in his home country”).

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Asylum, Motions to Reopen, Persection of gays in Mexico, political opinion | Leave a comment

CA7 vacated BIA denial of untimely Motion to Reopen for ignoring evidence of changed circumstances in both Sudan or South Sudan

Arej v. Sessions, No. 15-2061 (7th Cir. 2017)

Bd. erred in affirming IJ’s denial of alien’s motion to reopen his removal proceedings that previously resulted in order directing alien’s removal to Sudan, where purpose of motion to reopen was to obtain opportunity to file late asylum application in which alien alleged that his removal to either Sudan or South Sudan would subject him to either religious persecution or to dangerous civil war. Record showed that alien had filed motion to reopen beyond applicable 90-day deadline for doing so, and while Bd. found that alien had failed to present evidence of changed circumstances in either Sudan or South Sudan so as to explain late filing of motion to reopen, Ct. of Appeals found that new consideration of alien’s motion to reopen was required, where Bd. had ignored evidence of changed circumstances in both Sudan or South Sudan.

In 2011 the southern half of Sudan (predominantly Muslim) broke away to form the Republic of South Sudan, the population of which practices Christianity or African traditional religion. Arej, born in South Sudan, was sent as a child to live in the north, where he concealed his Christian faith and his southern ethnicity. He eventually fled to Egypt. He was admitted to the U.S. as a refugee in 2005. He remains a citizen of Sudan. In the U.S., Arej committed assaults; one resulted in a death. After he completed his two-year prison sentence, an IJ ordered him removed to Sudan. Arej sought asylum on the ground that South Sudan was “increasingly volatile and dangerous.” He had missed the 90‐day deadline for filing a motion to reopen and sought an exception on the basis of changed circumstances since the issuance of the removal order. Removed to the north, Arej would be in danger as a southerner, but civil war had broken out in South Sudan; it was reported that 20 percent of the population had been displaced and an “untold number” killed. The IJ denied Arej’s motion. The BIA dismissed an appeal. The Seventh Circuit vacated, finding that the BIA ignored the growing violence in the south and U.N. concerns about genocide, which constituted evidence that conditions have materially changed.

_______________________
DENG AREJ, Petitioner,
v.
JEFF SESSIONS, Attorney General of the United States, Respondent.
No. 15-2061

United States Court of Appeals, Seventh Circuit.
Argued March 1, 2017.
Decided March 28, 2017.

Jamie M. Dowd, for Respondent.

Jonathan A. Robbins, for Respondent.

Andrew Nathan O’Malley, for Respondent.

Emily C.R. Vermylen, for Petitioner.

Alex Kardon, for Petitioner.

Rory K. Schneider, for Petitioner.

Petition for Review of an Order of the Board of Immigration Appeals, No. A094-549-699.

Before POSNER, SYKES, and HAMILTON, Circuit Judges.

POSNER, Circuit Judge.

The Sudan is a very large region in northeastern Africa, the site of a number of ancient civilizations that flourished along the Nile. It became an independent nation in 1956 (before that it had been controlled by Britain and Egypt), but since 2011 it has accommodated two nations—the Republic of the Sudan and the Republic of South Sudan. Until 2011, when the southern half of the nation broke away to form the Republic of South Sudan, the Sudan was the largest nation in Africa.

The population of the Republic of the Sudan is almost entirely Muslim, whereas most of the population of the Republic of South Sudan practices Christianity or African traditional religion. The religious difference between the two nations is germane to this immigration case, as we’ll see.

The petitioner, Deng Arej, was born in South Sudan before it was an independent nation, and was sent as a child to live in the northern part of Sudan because his parents were afraid that if he remained in the south he’d be drafted into the south’s army as a child soldier. When relocated to the north he concealed both his Christian faith and his southern ethnicity to avoid being killed by northern soldiers. Later, fearing that he would be drafted into the northern army, he fled to Egypt. He was admitted to the United States as a refugee in 2005. Though a native of South Sudan, now as we said an independent nation, he remains a citizen of the Republic of the Sudan.

Once in the United States, Arej committed a series of assaults (one in a fight that resulted in a death, although he was not convicted of murder) and was sentenced to two years in prison. In April 2014, after he completed his prison sentence, an immigration judge ordered him removed (i.e., deported) to the Republic of the Sudan. He might have preferred to be removed to South Sudan, now that it’s an independent nation, as he is of South Sudanese origin and a Christian—but the record does not say which nation he prefers: probably, as we’ll see, neither. There have been previous removals of Sudanese immigrants, but it is unclear how many of them were removed to the northern republic and how many to the southern, and how many removed to one of the two countries moved or tried to move to the other.

In January 2015, awaiting removal more than eight months after having been ordered removed, Arej sought U.S. asylum on the ground that South Sudan (to which he may have intended to move from the Republic of the Sudan were he removed to that republic) was “increasingly volatile and dangerous” and by May 2014 on the brink of civil war. And as he wasn’t even a citizen of the country, he might be unable to obtain protection from its government. He may have thought it obvious that he shouldn’t be removed to the north either, in view of his vulnerability to persecution there, being Christian; in any event he was opposing, on plausible grounds, removal to either country.

He had missed the 90-day deadline for filing a motion to reopen the proceedings, however, which would have allowed him to petition for asylum. But he sought an exception to the deadline on the basis of changed circumstances since the issuance of the removal order. A civil war in South Sudan had broken out in December 2013 and by February 2015 a South Sudanese legal scholar was quoted in evidence that Arej submitted to the Board of Immigration Appeals as reporting that 20 percent of his country’s population had been displaced and an “untold number” of them killed. Removed to the north, Arej would be in danger as a southerner, but if therefore he fled to the south, he would find himself in the midst of a civil war. He was between a rock and a hard place.

But the immigration judge denied Arej’s motion to reopen (a motion that if granted would have made it possible for him to apply for asylum in the United States), remarking that Arej “states no facts constituting changed circumstances.” He appealed to the Board of Immigration Appeals, which however dismissed his appeal perfunctorily, remarking—inaccurately—that the fact that there was a “`[civil] war. . . in progress [in South Sudan]’ . . . does not amount to a showing that circumstances have materially changed in Sudan or South Sudan since the time of the entry of the order of removal.” That remark ignored the growing violence in the south during this period. Further ignoring evidence, the Board added that Arej had failed to present evidence that “establishes that, since the time of his ultimate removal hearing, conditions have materially changed in Sudan or South Sudan.” That was incorrect; he had presented such evidence, which we summarized above.

Arej has conceded that he qualifies as a criminal alien under 8 U.S.C. § 1252(a)(2)(C), so our review of the Board’s decision is limited to issues of law. 8 U.S.C. § 1252(a)(2)(D). But it was a serious legal error for the Board to have ignored Arej’s evidence. As we noted in Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008), the Board cannot make a reasoned decision to deny a motion to reopen if it ignores the evidence that a petitioner presents.

Furthermore, a competent immigration service would not ignore world events. The dramatically worsening conditions in South Sudan have been widely reported, with the young nation described as “cracking apart” and United Nations officials raising concerns about genocide. See, e.g., Jeffrey Gettleman, “War Consumes South Sudan, a Young Nation Cracking Apart,” New York Times, March 4, 2017, https://nyti.ms/2lHeELw. “Tens of thousands of civilians have been killed”; “every major cease-fire that has been painstakingly negotiated by African and Western officials has been violated”; and “dangerous fissures are opening up within the South Sudanese military.” Id. And time doesn’t stand still. The Board’s order dismissing Arej’s appeal from the immigration judge’s denial of his motion to reopen was issued on May 8, 2015—almost two years ago. Considering that Arej has not yet been removed and that the order was perfunctory, the Board should consider whether he should be allowed to present evidence concerning current conditions in the two Sudans. See 8 C.F.R. § 1003.2(a).

The petition for review is therefore granted, the decision of the Board vacated, and the case remanded to the Board for further proceedings consistent with this opinion.

SYKES, Circuit Judge, concurring in the judgment.

Deng Arej, a citizen of Sudan, was admitted to this country as a refugee in 2005 and thereafter committed multiple violent crimes in the State of Kentucky. Between December 2010 and May 2013, he was charged and convicted of these crimes in several separate state-court proceedings and was sentenced to serve short concurrent prison terms. The Department of Homeland Security thereafter initiated proceedings to remove him from this country. His serious criminal conduct made him removable on several grounds. See 8 U.S.C. § 1227(a)(2)(A)(ii) (making aliens removable for committing a crime of moral turpitude); id. § 1227(a)(2)(E)(i) (making aliens removable for committing a crime of domestic violence); id. § 1227(a)(2)(A)(iii) (making aliens removable for committing an aggravated felony).

During the removal proceedings, Arej declined the opportunity to apply for asylum, withholding of removal, or deferral of removal under the Convention Against Torture. On April 23, 2014, an immigration judge ordered him removed to Sudan. Arej waived his right to appeal the removal order to the Board of Immigration Appeals (“BIA” or “the Board”).

On January 9, 2015—more than eight months later—Arej moved to reopen the removal proceedings, saying that he now wished to apply for asylum “in the interest of justice and humanitarian concerns.” A motion to reopen must be filed within 90 days of the entry of the order of removal, id. § 1229a(c)(7)(C)(i), so his motion was untimely by more than five months. An exception to the time bar exists if the alien can demonstrate that conditions in the country to which he has been ordered removed have materially changed since the removal order was entered. Id. § 1229a(c)(7)(C)(ii). Arej submitted no evidence and otherwise made no effort to fit his case within this exception, so the immigration judge denied the motion as untimely.

Arej appealed to the BIA and this time submitted documentary evidence in an effort to show a material change in country conditions in the Sudan and South Sudan. The Board rejected his argument and dismissed the appeal. Its dismissal order refers in general terms to the “numerous documents” Arej submitted on appeal and summarily concludes that this “additional evidence” failed to establish that conditions “materially changed in Sudan or South Sudan” since the removal order was entered. The Board also concluded “upon consideration of the totality of the record” that sua sponte reopening was unwarranted.

Arej petitioned for review, but our jurisdiction is severely limited by his status as a criminal alien; we do not have authority to review the BIA’s decision for abuse of discretion. More specifically, the Immigration and Nationality Act (“INA”) provides that “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in . . . section 1227.” Id. § 1252(a)(2)(C). Without jurisdiction to review the underlying removal order, we also lack jurisdiction to review the denial of a motion to reopen that order. Cruz-Mayaho v. Holder, 698 F.3d 574, 577 (7th Cir. 2012). But the INA preserves our jurisdiction to review questions of law and constitutional claims. 8 U.S.C. § 1252(a)(2)(D). Accordingly, we lack jurisdiction to review how the BIA evaluated and weighed Arej’s evidence or to test its decision for abuse of discretion; we may review its decision only for errors of law and constitutional infirmities.

My colleagues address jurisdiction only fleetingly, though they do cite § 1252(a)(2)(D) and Iglesias v. Mukasey, 540 F.3d 528 (7th Cir. 2008). Iglesias holds that when an alien asserts that the BIA “completely ignored the evidence he presented,” he has raised “a good faith claim of legal error” that counts as “a question of law” under § 1252(a)(2)(D). Id. at 531. Relying on Iglegias, my colleagues conclude that the Board ignored Arej’s evidence. Majority Op. at p. 4. That’s incorrect.

The dismissal order is admittedly a brief summary disposition, but it’s clear that the Board was aware of the additional evidence Arej submitted on appeal. The Board acknowledged in general terms that Arej submitted “numerous documents” on appeal and ruled that this “additional evidence” is insufficient to show changed country conditions. The order also specifically states that the Board considered the “totality of the record” in declining to reopen sua sponte. That’s more than the BIA said in Iglesias; the order denying reopening in that case contained not a word about the alien’s evidence. 540 F.3d at 531-32.

Still, other language in Iglesias suggests that Arej has indeed raised a colorable claim of legal error, though it’s very narrow. Our opinion in Iglesias listed in summary fashion the key items of evidence the petitioner had presented to the BIA in his appeal. Id. at 532. We then say this: “Had the BIA at least mentioned this evidence, we could have some confidence that these materials had been considered. Unfortunately, the brevity of the decision leaves us with the impression that the BIA committed legal error. . . .” Id. at 532. This suggests to me that it’s a legal error under Iglesias for the Board to deny a motion to reopen with a generic assurance that it has considered the “totality of the record,” as it did here. We have limited jurisdiction to correct that legal error, but not to look for factual errors or an abuse of discretion.

In Iglesias we ultimately denied the alien’s petition for review, finding the legal error harmless. 540 F.3d at 532-33. The government has not raised harmless error here, so that argument is waived.

Accordingly, I agree with the court’s decision to vacate the BIA’s order and remand for further proceedings, but I arrive at that conclusion on narrower grounds. I respectfully concur in the judgment only.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, changed country conditions, Motions to Reopen | Leave a comment

CA7 affirms denial of withholding of removal to Mexico and CAT relief; BIA fact-finding as to state-court conviction was harmless

Delgado-Arteaga v. Sessions, No. 16-1816 (7th Cir. 2017)

Record contained sufficient evidence to support IJ’s order denying alien’s application for withholding of removal to Mexico, where said denial was based, in part, on finding that alien’s prior Illinois drug trafficking conviction qualified as “particularly serious crime,” and that alien had failed to establish either that his prior conviction did not have adverse effect on juveniles or that alien played only peripheral role in his drug-trafficking conviction. Ct. rejected alien’s claim that Bd. erred by not referring his appeal to three-member panel, where Ct. found that single Bd. member had discretion to refer alien’s case to three-member panel. While Ct. further found that Bd. had erred in engaging in fact-finding when affirming IJ’s conclusion that alien’s state-court conviction qualified as particularly serious crime, alien did not establish any prejudice where other evidence found by IJ sufficiently supported IJ’s conclusion.

Delgado, a citizen of Mexico, entered the U.S. without inspection three times, most recently in May 1999. In December 2009, he was convicted in Illinois state court of felony possession of cocaine with intent to deliver and sentenced to six months’ imprisonment. In 2015, DHS initiated removal proceedings. More than seven years and three petitions later, the Board of Immigration Appeals affirmed an IJ’s denial of withholding of removal, 8 U.S.C. 1231(b)(3), and relief under the Convention Against Torture, 8 C.F.R. 1208.16(c). Delgado challenged aspects of the expedited removal process under 8 U.S.C. 1228(b) and a corresponding regulation and claimed that the Board committed various legal errors. The Seventh Circuit dismissed Delgado’s petition for review in part for lack of jurisdiction. Asylum is a form of discretionary relief in which “there is no liberty interest at stake.” The court denied the remainder of his arguments. The Board engaged in impermissible fact-finding, but the error was harmless.

_________________________________
JESUS DELGADO-ARTEAGA, Petitioner,
v.
JEFF SESSIONS, Attorney General of the United States, Respondent.
No. 16-1816

United States Court of Appeals, Seventh Circuit.
Argued November 29, 2016.
Decided March 23, 2017.

Melissa Lynn Neiman-Kelting, for Respondent.

Daniel W. Thomann, for Petitioner.

Anna E. Juarez, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals, No. A089-281-390.

Before BAUER, FLAUM, and HAMILTON, Circuit Judges.

BAUER, Circuit Judge.

Over seven years and three petitions later, these proceedings have come to a conclusion. Petitioner, Jesus Delgado-Arteaga (“Delgado”), petitions for review of an order of the Board of Immigration Appeals’ decision affirming the immigration judge’s denial of withholding of removal, 8 U.S.C. § 1231(b)(3), and relief under the Convention Against Torture, 8 C.F.R. § 1208.16(c). Delgado challenges aspects of the expedited removal process under 8 U.S.C. § 1228(b) and a corresponding regulation, 8 C.F.R. § 1208.31(g)(2)(i). He also claims that the Board committed various legal errors. For the following reasons, we dismiss the petition for review in part for lack of jurisdiction and deny the remainder of his petition for review.

I. BACKGROUND.

Delgado, a native and citizen of Mexico, entered the United States without inspection three times, most recently in May 1999. In December 2009, he was convicted in Illinois state court of felony possession of cocaine with intent to deliver in violation of 720 Ill. Comp. Stat. § 570/401(c)(2). He was sentenced to six months’ imprisonment with two years of probation.[1]

On March 3, 2015, the Department of Homeland Security, initiated expedited removal proceedings pursuant to 8 U.S.C. § 1228(b). See 8 C.F.R. § 238.1 (setting forth procedures). DHS served Delgado a Notice of Intent, charging that Delgado was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B). On March 16, 2015, DHS issued a Final Administrative Removal Order (“FARO”), finding Delgado deportable as charged and ordering that he be removed to Mexico. Delgado expressed a fear of returning to Mexico to a DHS officer who then referred him to the Chicago Asylum Office for a reasonable fear interview.

On March 31, 2015, an asylum officer interviewed Delgado with his attorney present. On April 15, 2015, the asylum officer found that Delgado was credible, but concluded that he did not establish a reasonable fear of persecution or torture in Mexico. Delgado requested that an IJ review the asylum officer’s negative decision. After a review, the IJ found that Delgado had established a reasonable possibility that he would be persecuted or tortured in Mexico. Accordingly, on April 30, 2015, the IJ vacated the asylum officer’s decision, and placed Delgado in “withholding-only” proceedings. See 8 C.F.R. § 1208.31(g)(2)(i). The IJ permitted Delgado to file an application for withholding of removal and relief under the CAT, which he filed on June 16, 2015. See id.

On August 5, 2015, the IJ held a hearing on the merits. Both Delgado and his wife testified in support of his applications. He argued that he had not been convicted of an aggravated felony and that he should have been allowed to apply for asylum under 8 U.S.C. § 1158. At the hearing, the IJ concluded that it was not authorized to review DHS’s determination that Delgado was convicted of an aggravated felony. The IJ ruled that Delgado was not eligible for asylum on two grounds: he was not permitted to apply for it in “withholding-only” proceedings; and, he was in removal proceedings pursuant to 8 U.S.C. § 1228(b). Thus, the IJ considered only Delgado’s applications for withholding of removal and relief under CAT.

On September 23, 2015, the IJ denied both applications. First, the IJ found that Delgado’s testimony and corroborating evidence was insufficient to meet his burden of proof under the REAL ID Act, 8 U.S.C. § 1158(b)(1)(B)(ii). Alternatively, the IJ concluded that even if Delgado established his burden of proof, the IJ would have denied Delgado’s application for withholding of removal because he had been convicted of a “particularly serious crime.” The IJ found that 720 Ill. Comp. Stat. § 570/401(c)(2) was categorically a “drug trafficking crime,” and thus, an illicit trafficking aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B). Because Delgado’s conviction was an aggravated felony, the IJ concluded it was presumed to be a “particularly serious crime,” 8 U.S.C. § 1231(b)(3)(B)(ii).

The IJ noted that the Attorney General has determined that drug trafficking aggravated felonies “presumptively constitute” particularly serious crimes absent “extraordinary and compelling circumstances.” Y—-L—-, 23 I. & N. Dec. 270, 274 (BIA 2002); see Bosede v. Mukasey, 512 F.3d 946, 949-51 (7th Cir. 2008). In order to rebut this presumption, the applicant must establish that his conviction involved “(1) a very small quantity, (2) a very modest payment, (3) only peripheral involvement, (4) the absence of any violence or threat of violence, (5) the absence of any connection to organized crime or terrorism, and (6) the absence of any adverse or harmful effect on juveniles.” Bosede, 512 F.3d at 951 (citing Y—-L—-, 23 I. & N. Dec. at 276-77). If the applicant satisfies all six criteria, the applicant must also show “other, more unusual circumstances (e.g., the prospective distribution was solely for social purposes, rather than for profit).” Id. (quoting Y—-L—-, 23 I. & N. Dec. at 277).

The IJ held that Delgado’s conviction was a “particularly serious crime” because Delgado failed to meet the factors as required under Matter of Y—-L—-. Specifically, the IJ found that Delgado failed to show that his conviction did not have an adverse effect on juveniles because Delgado lived with a nine-year-old child. The IJ also found that Delgado failed to establish a peripheral role in his drug-trafficking conviction. Lastly, even if Delgado met his burden under Matter of Y—-L—-, the IJ concluded that it would have denied the application because Delgado did not show it was more likely than not that he would face persecution in Mexico.

Delgado appealed to the Board, and requested review by a three-member panel. He challenged essentially every aspect of the IJ’s decision. Additionally, he argued that the IJ incorrectly declined to consider an asylum application because 8 C.F.R. § 1208.31(g)(2)(i) is ultra vires.

On March 14, 2016, a single-member Board adopted and affirmed the IJ’s decision, and entered an order dismissing Delgado’s appeal. The Board declined to consider Delgado’s argument that 8 C.F.R. § 1208.31(g)(2)(i) is ultra vires, reasoning that it lacked authority to make such a ruling. The Board concluded that the IJ properly found that Delgado’s aggravated felony conviction presumptively constituted a “particularly serious crime.” The Board explicitly agreed with the IJ’s finding that Delgado failed to establish that he had only peripheral involvement in his drug-trafficking conviction. In addition, the Board found that Delgado failed to establish two other requirements under Matter of Y—-L—-: that his conviction was not connected to any organized crime; and, that the drugs were to be distributed solely for social purposes. A motion to reconsider was denied. Thereafter, Delgado filed this petition for review.

II. DISCUSSION.

Generally, we lack jurisdiction to review denials of discretionary relief, including asylum. See 8 U.S.C. § 1252(a)(2)(B); Aparicio-Brito v. Lynch, 824 F.3d 674, 686 (7th Cir. 2016). “But, under 8 U.S.C. § 1252(a)(2)(D), we retain jurisdiction to review constitutional claims and questions of law raised in a petition for review.” Perez-Fuentes v. Lynch, 842 F.3d 506, 510 (7th Cir. 2016) (citation omitted). Where, as here, the Board adopts and affirms the IJ’s decision and provides its own analysis, we review both decisions. Halim v. Holder, 755 F.3d 506, 511 (7th Cir. 2014).

First, Delgado contends that DHS lacks legal authority to issue removal orders on behalf of the Attorney General pursuant to 8 U.S.C. § 1228(b), and that § 1228(b) requires removal orders be issued by IJs. Second, he argues that he should have been permitted to apply for asylum under 8 U.S.C. § 1158 because the regulation at 8 C.F.R. § 1208.31(g)(2)(i) is ultra vires. Lastly, he argues that the Board committed various legal errors and failed to follow its procedures when adjudicating his case, such as failing to refer the case to a three-member panel, engaging in improper factfinding, and overlooking his arguments on appeal.

A. No Jurisdiction to Review Challenges to the Expedited Removal Process

Delgado challenges DHS’s FARO dated March 16, 2015, arguing that DHS lacked legal authority to order Delgado’s removal under 8 U.S.C. § 1228(b), and that the plain language of § 1228(b) requires that final orders of removal be issued by IJs.

We need not address these claims because Delgado’s challenges to DHS’s removal order were rendered moot when the IJ vacated DHS’s FARO and, ultimately, ordered his removal. Article III limits our review to “Cases” and “Controversies,” and an “actual controversy” must exist through all stages of review. Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726 (2013). “[I]f an event occurs . . . that makes it impossible for the court to grant `any effectual relief whatever’ to a prevailing party, the appeal must be dismissed.” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (citation omitted). A case becomes moot “when the issues presented are no longer `live’ or the parties lack a legally cognizable interest in the outcome.” Qureshi v. Gonzales, 442 F.3d 985, 988 (7th Cir. 2006) (citation omitted).

Here, no live case or controversy exists because we cannot grant any effectual relief to Delgado. He asks that we overturn DHS’s FARO and remand for further proceedings before an IJ; in other words, Delgado asks that we overturn an already vacated order. Assuming that it were possible to grant such relief, it remains true that the IJ issued the final removal order, not DHS. As a result, the case is moot and we lack jurisdiction to review this challenge.

Lastly, we note that the jurisdictional problem here is further highlighted when considering the Tenth Circuit’s decision in Osuna-Gutierrez v. Johnson, 838 F.3d 1030, 1033-35 (10th Cir. 2016). There, the petitioner brought an identical challenge, but it failed on the merits. Despite the same arguments, there is one critical factual difference: the petitioner in Osuna-Gutierrez was ordered removed by DHS, whereas Delgado was ordered removed by an IJ. This difference shows how the issue presented by Delgado is no longer “live.” While it is tempting to fall in line with the Tenth Circuit, this factual difference precludes us from reaching the merits. Because there is no case or controversy, we must dismiss Delgado’s challenge for lack of jurisdiction.

B. No Jurisdiction to Review Challenge to 8 C.F.R. § 1208.31(g)(2)(i)

Next, Delgado contends that 8 C.F.R. § 1208.31(g)(2)(i) is ultra vires because it impermissibly precluded him from applying for asylum under 8 U.S.C. § 1158(a)(1). He claims that § 1158 permits all aliens to apply for asylum regardless of whether the alien is subject to administrative removal under § 1228(b). In other words, Delgado claims that he was “injured” when the regulation denied him the opportunity to apply for asylum.

We lack jurisdiction to review this challenge because Delgado cannot meet the injury-in-fact element required for standing. To establish an injury in fact, Delgado must show that he “suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (citation and quotation marks omitted).

Delgado cannot claim he suffered an “invasion of a legally protected interest” when 8 C.F.R. § 1208.31(g)(2)(i) precluded him from applying for asylum. Asylum is a form of discretionary relief in which “there is no liberty interest at stake.” Delgado v. Holder, 674 F.3d 759, 765 (7th Cir. 2012); see Ali v. Ashcroft, 395 F.3d 722, 732 (7th Cir. 2005) (noting “denial of such relief does not implicate due process”). Because Delgado fails to establish an injury in fact, he lacks standing to challenge § 1208.31(g)(2)(i). Therefore, we dismiss this challenge for lack of jurisdiction.

C. Challenges to the Board’s Decision and Procedures

1. Three-Member Panel

Delgado argues that the Board erred by not referring his case to a three-member panel. A single member may take “advantage of the streamlined procedures found in 8 C.F.R. §§ 1003.1(e)(4), (e)(5) for routine cases that can be processed quickly.” Joseph v. Holder, 579 F.3d 827, 832 (7th Cir. 2009). The regulations give a single member discretion to refer an appeal to a three-member panel under six different circumstances, but referral is not required. 8 C.F.R. § 1003.1(e)(6) (listing circumstances); see Ward v. Holder, 632 F.3d 395, 398-99 (7th Cir. 2011) (noting “discretion . . . is left to the panel member assigned to the case”). In Ward, we were unable to find that the Board “violated the review procedures set forth in § 1003.1(e) when a single member rendered a decision on petitioners’ appeal in his discretion without referring it to a panel of three.” 632 F.3d at 399. Like the single member in Ward, the single member here had the discretion to refer the appeal to a three-member panel, but did not do so. Delgado fails to demonstrate that the Board violated the review procedures as set forth in 8 C.F.R. § 1003.1(e).

2. Improper Fact-Finding

Next, Delgado contends that the Board violated 8 C.F.R. § 1003.1(d)(3)(iv) by engaging in improper fact-finding when it affirmed the IJ’s conclusion that Delgado was convicted of a “particularly serious crime,” 8 U.S.C. § 1231(b)(3)(B)(ii). “An argument that the Board has exceeded the scope of review permissible under [8 C.F.R. § 1003.1(d)(3)(iv)] is a legal one, for the purpose of § 1252(a)(2)(D).” Rosiles-Camarena v. Holder, 735 F.3d 534, 536 (7th Cir. 2013). The regulation provides that “[e]xcept for taking administrative notice of commonly known facts . . ., the Board will not engage in factfinding in the course of deciding appeals.” 8 C.F.R. § 1003.1(d)(3)(iv); see Estrada-Martinez v. Lynch, 809 F.3d 886, 894 (7th Cir. 2015) (“The Board must not find facts in the first instance. . . .”); Lin v. Holder, 630 F.3d 536, 545 (7th Cir. 2010) (“[T]he Board is not permitted to engage in fact-finding on appeal.”).

Delgado argues that the Board impermissibly found that Delgado failed to establish two additional requirements under Matter of Y—-L—-: the absence of organized crime involvement and “other, more unusual circumstances” (i.e., drugs were to be distributed solely for social purposes). See Y—-L—-, 23 I. & N. Dec. at 276-77. In response, the government does not dispute Delgado’s argument, but claims that the Board’s additional fact-finding was harmless error.

We agree with Delgado that the Board exceeded the permissible scope of review when it made the two findings at issue in the first instance. Nonetheless, Delgado fails to show that he was prejudiced by the Board’s impermissible factfinding. See Issaq v. Holder, 617 F.3d 962, 967 (7th Cir. 2010); Perez-Fuentes, 842 F.3d at 512 (noting that a petitioner must show that the alleged error “may have had the potential to change the outcome of the hearing” (citation omitted)). Here, the Board adopted the IJ’s decision, and explicitly agreed with the IJ’s finding that Delgado did not establish that he had only peripheral involvement in the drug-trafficking conviction. By adopting the IJ’s decision, the Board also agreed with the IJ’s finding that Delgado failed to show that his conviction did not have an adverse effect on a juvenile. Despite the Board’s impermissible fact-finding, Delgado still fails to satisfy two factors under Matter of Y—-L—-. He did not show how he was prejudiced.

3. Arguments to the Board

Delgado argues that the Board overlooked and failed to consider his arguments on appeal. “A claim that the [Board] has completely ignored the evidence put forth by a petitioner is an allegation of legal error.” Perez-Fuentes, 842 F.3d at 512 (quoting Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008)). This includes a claim that the Board “failed to exercise discretion at all by completely ignoring an argument.” Iglesias, 540 F.3d at 530-31. Although the Board “does not have to write an exegesis on every contention, it must consider the issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” Id. at 531. “We have frequently remanded cases when the BIA’s or the IJ’s failure to discuss potentially meritorious arguments or evidence calls into question whether it adequately considered th[ose] arguments.” Kebe v. Gonzales, 473 F.3d 855, 857 (7th Cir. 2007) (collecting cases).

Delgado lists, as we have done similarly here, several arguments that he claims were ignored by the Board: (1) his request for a three-member panel in his appeal to the Board; (2) that the IJ failed to properly develop the record; (3) that the IJ conducted an incorrect “pattern or practice” analysis under 8 C.F.R. § 1208.16(b)(2)(i); and, (4) his argument concerning an unpublished Board decision concerning Florida state law (the Board addressed and rejected this last argument).

Delgado’s claim, alone, that the Board “completely ignored” an argument, does not sufficiently “enable a reviewing court” to determine whether that argument is “potentially meritorious.” “[I]t is not the work of this Court to formulate arguments for the parties.” Kurzawa v. Jordan, 146 F.3d 435, 447-48 (7th Cir. 1998), nor will we attempt to do so here. “[F]ailure to adequately develop and support these arguments results in waiver.” Lin, 630 F.3d at 543. Delgado’s challenge is perfunctory; he simply lists these arguments one-by-one, without any explanation. Therefore, we will consider these arguments waived.

III. CONCLUSION.

For the foregoing reasons, we DISMISS Delgado’s petition for review in part for lack of jurisdiction and DENY the remainder of his petition for review.

[1] In 2010, Delgado was subject to removal proceedings pursuant to 8 U.S.C. § 1229a, but those proceedings were terminated. He filed a petition with this Court, objecting to the termination of the § 1229a proceedings. Once DHS initiated proceedings under § 1228(b), Delgado filed a motion for voluntary dismissal of his first petition, which this Court granted. Delgado v. Lynch, 14-3127 (7th Cir. April 15, 2015). He filed a second petition with this Court after he was issued the Final Administrative Removal Order, but before he completed the reasonable fear interview. The government filed a motion to dismiss the petition, which we granted because the FARO was not “final” for purposes of our review. Delgado v. Lynch, 15-1810 (7th Cir. Aug. 7, 2015).

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