BIA Precedent Decisions Volume 26 (2012-2016) Executive Office for Immigration Review

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)

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.


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 26, Board of Immigration Appeals, Executive Office for Immigration Review | Tagged | Leave a comment

Failure to comply with an order of voluntary departure, available for certain victims of domestic violence or related abuse, does not extend to U-1 nonimmigrant victims of qualifying criminal activity

The following Immigration Policy Memorandum is now available

Matter of L-S-M-, Adopted Decision 2016-03 (AAO Feb. 23, 2016) PM-602-0133

This policy memorandum (PM) designates the attached decision of the Administrative Appeals Office (AAO) in Matter of L-S-M- as an Adopted Decision. Accordingly, this adopted decision establishes policy guidance that applies to and binds all U.S. Citizenship and Immigration Services (USCIS) employees. USCIS personnel are directed to follow the reasoning in this decision in similar cases.

Matter of L-S-M- clarifies that the exception to the civil penalties for failure to comply with an order of voluntary departure, available for certain victims of domestic violence or related abuse, does not extend to U-1 nonimmigrant victims of qualifying criminal activity. See sections 240B(d)(1)-(2) of the Immigration and Nationality Act. That said, the civil penalties only apply if an alien’s failure to timely depart was voluntary. Matter of Zmijewska, 24 I&N Dec. 87 (BIA 2007), followed.

(1) The exception under section 240B(d)(2) of the Immigration and Nationality Act to the civil penalties for failure to comply with an order of voluntary departure, available for certain victims of domestic violence or related abuse, does not extend to U-1 nonimmigrant victims of qualifying criminal activity.

(2) The civil penalties under section 240B(d)(1) of the Immigration and Nationality Act apply only to aliens who voluntarily fail to comply with an order of voluntary departure. Matter of Zmijewska, 24 I&N Dec. 87 (BIA 2007), followed.

Posted in Matter of L-S-M-, Voluntary Departure | Leave a comment

CA7 requires satisfying Lozada’s procedural requirements even where ineffective assistance of counsel is “clear and obvious from the record.”

Guzman-Rivadeneira came to the U.S. from Ecuador. In 1993 he was convicted in California of possession of counterfeit prescription blanks. After returning to Ecuador, he returned to the U.S. and became a lawful permanent resident because his mother is a U.S. citizen. On his application, he falsely responded that he had never been arrested or convicted of a crime. In 2012, Guzman-Rivadeneira pled guilty to a controlled substance misdemeanor. Guzman-Rivadeneira returned from another trip abroad in 2014 and was charged as removable for: conviction of a crime involving moral turpitude (1993 conviction), 8 U.S.C. 1182(a)(2)(A)(i)(I); conviction of a controlled substance offense; procurement of a visa by fraud; and lack of a valid entry document. He argued that a 1997 California court order reducing the 1993 conviction to a misdemeanor should be given retroactive effect; that he was eligible for a discretionary waiver of removability for his visa fraud, and that as a legal permanent resident he would be eligible for cancellation of other grounds of removal. The BIA upheld the IJ’s denial of relief. The Seventh Circuit declined a petition based on the “moral turpitude” issue. Guzman-Rivadeneira’s original lawyer conceded that the 1993 conviction involved moral turpitude, and in appealing to the BIA, his new lawyer did not seek relief from that concession, not did she take the steps needed to claim ineffective assistance of counsel. Guzman-Rivadeneira v. Lynch, No. 14-3734 (7th Cir. 2016)

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Posted in 7th Circuit, 7th Circuit Cases- Aliens, ineffective assistance of counsel, Matter of Lozada, Velasquez exception | Leave a comment

CA7 remands because alien prejudiced by his inability to cross-examine witness whose evidence on marriage fraud was presented through a written statement

KARROUMEH v. Lynch, Court of Appeals, 7th Circuit 2016

Karroumeh was entitled to new hearing on petition seeking his removal based on allegation that he entered into sham marriage for immigration purposes, where he was prejudiced by his inability to cross-examine his American-citizen former wife, who provided written statement claiming that alien had not lived with her for majority of their brief marriage. While govt. argued that submission of former wife’s written statement was permissible because it had made reasonable attempt to procure her attendance at hearing, Ct. found that govt. failed to make reasonable efforts to obtain her presence at removal hearing, where: (1) there was no evidence that subpoena was served on former wife that sought her presence on original hearing date that was subsequently moved to new date; and (2) govt. made no effort to request new subpoena to require her presence on new date of removal hearing.

Karroumeh, a citizen of Jordan then married to a Jordanian woman with whom he had two children, was admitted to the U.S. as a visitor in 1996. Within months, he obtained a proxy divorce and married Wright, a U.S. citizen who also had children. Wright filed a Form I-130, Petition for Alien Relative in conjunction with a Form I-485, Application to Register Permanent Residence or Adjust Status. Both were conditionally granted in 1998. In 2000, they successfully petitioned to remove the conditions from Karroumeh’s lawful permanent resident status, 8 U.S.C. 1186a(c)(1)(A). In 2001, Karroumeh filed his first application for naturalization During an interview, Karroumeh revealed that he and Wright were divorcing. Karroumeh withdrew his application. His divorce was finalized. In 2003 and 2006, Karroumeh filed two more applications for naturalization. In 2008, USCIS began to investigate Karroumeh for immigration fraud and obtained a sworn statement from Wright, including multiple contradictions. USCIS denied Karroumeh’s application. DHS commenced removal proceedings under 8 U.S.C. 1227(a)(1)(A). The Seventh Circuit remanded the order of removal, finding that Karroumeh was prejudiced by his inability to cross-examine Wright, a key government witness whose evidence was presented through a written statement.

__________________________________________________________________________

MOHSEN KARROUMEH, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 15-2198.

United States Court of Appeals, Seventh Circuit.
Argued January 20, 2016.
Decided April 29, 2016.

Before WOOD, Chief Judge, and MANION and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Mohsen Karroumeh petitions for review of a final order of removal issued by the Board of Immigration Appeals (“BIA” or “Board”). The Board determined that Karroumeh was removable because he entered into a sham marriage for immigration purposes. We conclude that Karroumeh is entitled to a new hearing before an immigration judge (“IJ”) because he was prejudiced by his inability to cross-examine a key government witness whose evidence was presented through a written statement. We grant the petition and remand for a new hearing.

I.

Karroumeh is a native and citizen of Jordan who was admitted to the United States as a visitor on May 2, 1996. At that time, he was married to a Jordanian woman with whom he had two children. In October 1996, he obtained a proxy divorce from his wife, and in February 1997, he married Terri Wright, a United States citizen who also had two children. A few months later, Wright filed a Form I-130, Petition for Alien Relative (“Petition”), on Karroumeh’s behalf, in conjunction with a Form I-485, Application to Register Permanent Residence or Adjust Status (“Application”). The Petition and Application were conditionally granted in June 1998. See 8 U.S.C. § 1186a. In July 2000, Karroumeh and Wright timely filed a Form I-751, a joint petition to remove the conditions from Karroumeh’s lawful permanent resident status. See 8 U.S.C. § 1186a(c)(1)(A). United States Citizenship & Immigration Services (“USCIS”) granted the joint petition in January 2001, and the conditions were removed from Karroumeh’s lawful permanent resident status. See 8 U.S.C. § 1186a(c)(3)(B).

Several months later, in May 2001, Karroumeh filed his first application for naturalization. During a February 2002 naturalization interview with USCIS, when questioned about the absence of his U.S. citizen wife, Karroumeh revealed that he and Wright were in the process of obtaining a divorce. A week later, Karroumeh withdrew his application. In March 2002, his divorce was finalized. In April 2003 and September 2006, Karroumeh filed two more applications for naturalization. In 2008, USCIS began to investigate Karroumeh for immigration fraud.

In the course of that investigation, USCIS officer Leslie Alfred obtained a sworn statement from Wright in December 2008, more than six years after her divorce from Karroumeh. Although Alfred questioned Wright extensively about her living situation during and after the marriage, her ambiguous and sometimes contradictory responses raised as many questions as they answered. In the interview, Wright revealed that she had moved to Columbia, Mississippi in November 1997, approximately nine months after she married Karroumeh, when her mother was jailed. But she also admitted that she registered her car in Mississippi in August 1997, and later said that she left for Mississippi in May 1997, which would have been only three months after she married Karroumeh. She said that she stayed in Mississippi for a year, paying the rent at the Columbia address until her mother was released from jail. She said both that she returned to the Chicago area in November 1998, and also that she moved to Hinsdale, Illinois in 2000, after moving back from Mississippi. She said that she separated from Karroumeh and began living apart from him in late 2000, and also that they “never lived together.” R. at 516. She later said that they “spent time together as a family, but we never lived together as a husband and wife.” R. at 517.

At the time of the December 2008 interview, Wright was living on South Springfield in Chicago, and had been living there nearly two years. Prior to that, she resided on West Cortez in Chicago for three years. When asked about registering her car during her marriage at addresses on Racine in Chicago, and on Clarendon Hills Road in Willowbrook, she replied that she only used the apartment in Clarendon Hills.[1] When asked directly if she and her children ever lived with Karroumeh, she replied that, when she was living in Hinsdale, “for 3 or 4 days out of the week he would come over. We were never on each other’s lease.” R. at 514. She also said that she “stayed with him a few nights at Worth,” a suburb of Chicago where Karroumeh leased an apartment. R. at 514. When told that records showed she never lived at Karroumeh’s Worth address, Wright cryptically replied, “You are correct lease wise.” R. at 515. When Alfred asked why her signature appeared on two of Karroumeh’s Worth leases, she replied, “This is because he gave them to me. He already signed the leases, I just signed it. I knew he was doing some bull crap, so I just got my own place.” R. at 515.

Alfred also asked Wright if she ever thought that Karroumeh married her just to get his green card, and she replied, “I felt he didn’t want to live with me.” R. at 517. She recalled signing a lease with Karroumeh before she left for Mississippi in May 1997, and said that he told her they could move into a two bedroom apartment, but that he never followed through in getting the larger apartment, causing her to feel that he did not wish to live with her. She filed one joint tax return with him, in 1999, and received a $2000 refund. She did not know why her name and social security number were on Karroumeh’s taxes for 1998 and 2000. Over the course of the marriage, Karroumeh gave Wright a little more than $4000, including $200 on their wedding day, $500 for clothing for her children, and the tax refund. As a result of the investigation, USCIS denied Karroumeh’s 2006 application for naturalization.

In June 2012, Karroumeh filed a “Petition for a Hearing on Naturalization Application” in the district court in the Northern District of Illinois. In October 2012, the Department of Homeland Security (“DHS”) commenced removal proceedings, serving Karroumeh with a Notice to Appear alleging that he had procured his lawful permanent resident status through fraud. See 8 U.S.C. § 1227(a)(1)(A). In particular, DHS asserted that he had married a United States citizen solely to obtain an immigration benefit. Because Karroumeh had filed an action in the district court, DHS sought expedited proceedings in the parallel removal action. Karroumeh denied the charges at his first appearance before the IJ on February 13, 2013. The IJ ordered DHS to file its evidence supporting the charge by May 13, 2013, and set a merits hearing for August 6, 2013. In April 2013, for reasons not apparent from the record, the IJ rescheduled the merits hearing to September 5, 2013. DHS submitted its evidence in support of the charge and indicated that it intended to present five witnesses at the hearing: Wright, her two children, Karroumeh’s property manager Lance Olson, and Leslie Alfred, the USCIS investigator who had taken the sworn statement from Wright. DHS also filed a motion with the IJ requesting issuance of a subpoena requiring Wright and her children to appear at the September 5, 2013 hearing. The IJ granted the motion for a subpoena but there is no evidence in the record that the subpoena was served on Wright.

The IJ moved the merits hearing one last time, to January 10, 2014. But no new subpoena was issued for Wright requiring her appearance on the new date. And she did not in fact appear on that date. On the day of the hearing, when the IJ asked government counsel whether Wright was available to testify, counsel replied, “None of those that have been subpoenaed have appeared for today’s hearing, Your Honor.” R. at 101. DHS then presented the testimony of Leslie Alfred. Alfred authenticated sworn statements from Wright and from Lance Olson, and then testified regarding his investigation into the legitimacy of the marriage. In particular, Alfred cited as suspicious the short amount of time between Karroumeh’s divorce from his Jordanian wife and his marriage to Wright, Wright’s statements that the couple never lived together, the money that Karroumeh gave Wright during the marriage, discrepancies regarding the filing of joint tax returns, Wright’s hesitation when asked if she and Karroumeh had consummated the marriage, and differences between Wright’s testimony regarding the date of separation and the date noted on the divorce decree, among other things. Karroumeh testified both as an adverse witness in the DHS case-in-chief and on his own behalf.

Although Karroumeh objected to the admission of Wright’s sworn statement, the IJ concluded during the hearing that the document was admissible:

Now the Government is contending that your wife’s statement supports their conclusion that your marriage was a sham. Mr. Adkinson [Karroumeh’s lawyer] has argued that that’s not true and that I should not even consider your wife’s statement. However, the Government has made an attempt to have your wife come to court. They subpoenaed her to come to court and she has not appeared. They could not locate her and she could not come to court. A third-party affidavit submitted by an outof-court declarant is admissible in evidence where the Government has made an attempt to have that witness present. You also said that you didn’t even know where your wife was and you were not able to have her come to court. So the Government does have the right to use your wife’s statement against you.

R. at 201-02. The IJ again ruled that Wright’s sworn statement was admissible in the final oral ruling:

The respondent’s attorney objected to the Court’s reliance on the affidavit of Terri Wright taken by the DHS [sic] Officer Leslie Alfred. It is true that evidence is only admissible if it is relevant and fundamentally fair to both sides. Here, however, I find that the admission of Terri Wright’s affidavit in the course of USCIS’ investigation was not fundamentally unfair to the respondent. The Government attorney made every effort to locate and bring Terri Wright to court to testify. They had asked the respondent for her address and asked for help in locating her. They asked the Court for the issuance of a subpoena, which was granted. Where the Government has made every effort to present an adverse witness, the admission of a third party’s statement is not fundamentally unfair.

R. at 81-82.

The IJ ultimately concluded that the government met its burden of demonstrating that Karroumeh’s marriage to Wright was not bona fide. In both his oral and written rulings, the IJ emphasized the importance of Wright’s sworn statement in reaching that conclusion. In the final oral decision, the IJ relied on Wright’s statement to demonstrate (1) that there was no period of time where Wright and Karroumeh lived together at the same address; (2) that Wright was living in Mississippi when she obtained an Illinois driver’s license; (3) that Wright never lived at Karroumeh’s Worth apartment; (4) that Wright never signed a lease with Karroumeh but that Karroumeh had manufactured evidence by having her sign leases after the fact; (5) that the date of separation in the divorce decree was false; and (6) that Karroumeh gave Wright money on multiple occasions, including in exchange for filing a joint tax return, as payments for entering into the marriage. In determining what weight should be accorded the Government’s evidence and whether the government had met its burden of proving by clear and convincing evidence that the marriage was a sham, the IJ stated:

First, the statement of Terri Wright is extremely damaging to the respondent. While she did not admit that she was paid money solely to enter into the marriage, everything about the statement suggests that the respondent fabricated evidence to contend that his marriage was a true marriage and that he was residing together with his spouse. The statement from Terri Wright supports the conclusion that the marriage was not entered into in good faith.

R. at 82. The IJ also cited the testimony of Alfred, which, of course, was based in part on his interview with Wright. In summing up the evidence, the IJ cited the quick succession of Karroumeh’s arrival in the United States, proxy divorce and marriage to Wright; the evidence that the couple never lived together; and Karroumeh’s manufacture of evidence such as Wright’s Illinois driver’s license, the leases, and the 1999 tax return. The IJ ordered that Karroumeh’s lawful permanent resident status be terminated and that he be granted voluntary departure.

On appeal, the BIA affirmed the IJ’s determination that Karroumeh was removable because he entered into a sham marriage for immigration purposes. Addressing Karroumeh’s argument that the IJ failed to properly enforce the subpoena issued to Wright, the BIA found that only the party seeking the subpoena could claim the benefits of the enforcement provision found at 8 C.F.R. § 1003.35(b)(6). The BIA also rejected Karroumeh’s claim that Wright’s sworn statement should not have been allowed as evidence because Wright was not present at the hearing for cross-examination. Because the government made reasonable efforts to procure Wright’s presence and because Karroumeh had an opportunity to cross-examine Alfred, the agent who took Wright’s statement, the BIA concluded that the statement was properly admitted as evidence. The BIA found that the government adequately established removability, and ordered Karroumeh’s removal to Jordan. Karroumeh petitions this court for review of that order.

II.

In his petition for review, Karroumeh contends that his statutory and due process rights to cross-examine Wright were violated when the IJ and BIA relied on Wright’s sworn statement even though the government failed to make reasonable efforts to procure her presence at the hearing. Karroumeh asserts that he was prejudiced by this error because there was little basis for finding that his marriage was a sham without Wright’s sworn statement. The government responds that it did in fact make reasonable efforts to bring Wright to the hearing and that those efforts are sufficient under the statute to allow the sworn statement to be used against Karroumeh. The government also asserts that it met its burden of demonstrating by clear and convincing evidence that Karroumeh married Wright for the sole purpose of obtaining immigration benefits.

“When the Board agrees with the decision of the immigration judge, adopts that decision and supplements that decision with its own reasoning, as it did here, we review the immigration judge’s decision as supplemented by the Board.” Cece v. Holder, 733 F.3d 662, 675 (7th Cir. 2013) (en banc). We review the findings of fact for substantial evidence and reverse only if the evidence compels a different result. Cece, 733 F.3d at 675-76. We review questions of law de novo, deferring to the Board’s reasonable interpretation set forth in precedential opinions interpreting the statute. Chevron, U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837, 842-43 (1984); Cece, 733 F.3d at 668-69.

In seeking to remove Karroumeh from the United States, the government bore the burden of proving by clear and convincing evidence that he was deportable, and that his marriage to Wright was a sham, entered into for the purpose of obtaining immigration benefits. See 8 U.S.C. § 1229a(c)(3)(A). Aliens in removal proceedings are entitled to due process of law under the Fifth Amendment. Pouhova v. Holder, 726 F.3d 1007, 1011 (7th Cir. 2013). The immigration statutes also impose procedural requirements on removal proceedings, and any proceeding that meets those requirements also satisfies constitutional due process. See Pouhova, 726 F.3d at 1011. One of the statutory procedural guarantees is the right to a reasonable opportunity to cross-examine witnesses presented by the government. 8 U.S.C. § 1229a(b)(4)(B); Pouhova, 726 F.3d at 1011; Malave v. Holder, 610 F.3d 483, 487 (7th Cir. 2010). The right to cross-examine adverse witnesses extends to those whose statements are presented in written declarations as well as those presented through live testimony. Malave, 610 F.3d at 487. “A declarant is a `witness’ when testimony comes in on paper, no less than when it is offered in person.” Malave, 610 F.3d at 487. In challenging the BIA’s decision, Karroumeh must demonstrate not only that this right was denied but also that he was prejudiced by the denial. Pouhova, 726 F.3d at 1011. We review de novo the legal question of whether the admission of a document violated a petitioner’s procedural rights in a removal proceeding and, if so, whether the admission was prejudicial. Pouhova, 726 F.3d at 1011-12.

The IJ found that the admission of Wright’s statement did not violate Karroumeh’s procedural rights because the government used reasonable efforts to procure Wright’s attendence at the hearing. We have expressed doubt whether the use of “reasonable efforts” to procure the presence of the witness is adequate to ensure the fairness of admitting documents whose declarants cannot be cross-examined. Pouhova, 726 F.3d at 1015; Malave, 610 F.3d at 487-88. But as in Pouhova and Malave, we need not resolve that question here because the record demonstrates that the government failed to make reasonable efforts to locate Wright and compel her presence at the hearing.

The very limited record on this issue demonstrates that the government asked the court to issue a subpoena compelling Wright’s appearance at the September 5, 2013 hearing. There is no evidence in the record that the subpoena was served on Wright. But more importantly, when the IJ moved the date of the hearing to January 10, 2014, the government did not request a new subpoena for that date and the court did not issue an updated subpoena. Other than seeking a subpoena for the wrong hearing date, there is no evidence in the record regarding the government’s efforts to secure Wright’s presence at the hearing. Nor did the IJ follow through on the regulatory requirement to seek the assistance of the United States Attorney and the district court in enforcing the subpoena. Section 8 C.F.R. § 1003.35(b)(6) states that, if a subpoenaed witness “neglects or refuses to appear and testify as directed . . . the Immigration Judge issuing the subpoena shall request the United States Attorney . . . to report such neglect or refusal to the United States District Court and to request such court to issue an order requiring the witness to appear and testify[.]” The BIA’s conclusion that only the party seeking the subpoena could claim the benefits of the enforcement provision found at 8 C.F.R. § 1003.35(b)(6) may be correct but it is irrelevant here: as the party seeking to use Wright’s sworn statement, the government was required to use reasonable efforts to secure Wright’s presence at the hearing, and yet the government failed to employ this readily available tool. The government has resources to locate persons who do not wish to be found. Malave, 610 F.3d at 488. Indeed, the government found Wright previously, when it wanted to interview her regarding her marriage to Karroumeh. “A prediction that a person can’t be found, or that cross-examination won’t be fruitful, is a poor reason to deny a litigant the statutory entitlement to crossexamine adverse witnesses.” Malave, 610 F.3d at 488. Although the government repeatedly invokes the phrase “reasonable efforts” in its brief, it has never set forth what those efforts entailed. Left with a record that shows nothing more than a single, unserved subpoena for the wrong date, we cannot conclude that the government used reasonable efforts to secure Wright’s presence at the hearing. Karroumeh has demonstrated that his procedural right to cross-examination was violated.

We turn to the question of prejudice. Wright’s statement was the primary piece of evidence cited by the IJ in supporting the decision. The IJ described the statement as “extremely damaging” to Karroumeh. In addition to Wright’s statement, the evidence consisted of Wright’s car registrations and driver’s license renewal; a few photographs of the couple; the landlord’s letter and sworn statement; leases; the divorce decree; and the time line of Karroumeh’s entry into the United States followed by his relatively quick proxy divorce and marriage to a United States citizen. Without Wright’s statement, the government could not demonstrate by “clear and convincing” evidence that the marriage was a sham. Much of the evidence was consistent with Karroumeh’s testimony that he and Wright mostly lived apart because his apartment was not large enough to accommodate her children, and because she temporarily moved to Mississippi for a period due to a family crisis. The photographs showed nothing more than Wright and her children with Karroumeh at an amusement park, and the wedding. The tax returns were jointly filed, and the leases were in the names “Mohsen and Terri Karroumeh.” Without Wright’s statement denying that she filed joint tax returns for two of the three relevant years, and that she signed the leases after the fact, the government presented little evidence that the marriage was a sham.

Evidence in removal proceedings need not strictly conform to the Federal Rules of Evidence, but the admission of evidence must be probative and fundamentally fair. Pouhova, 726 F.3d at 1011. Fairness, in turn, depends in part on the reliability of the evidence. Id. Hearsay is generally admissible in administrative proceedings, and may supply substantial evidence in support of an administrative decision, so long as there has been an opportunity for cross-examination. Malave, 610 F.3d at 487. As we noted above, Karroumeh had no opportunity to crossexamine Wright regarding her out-of-court statement.

Wright’s statement is marked by contradictions and inconsistencies that call its reliability into question. For example, Wright gave three different dates for her move to Mississippi and two different dates for her return to Illinois. She both denied signing leases with Karroumeh and also admitted signing them. Some of her statements beg for an explanation, such as her claim that she did not live with Karroumeh at his Worth address “lease wise.” Wright gave the statement more than six years after her divorce from Karroumeh. In a response that could be interpreted as displaying bias, she said that she divorced Karroumeh because after “constant lie after lie, he never followed through with his plans like getting a house[.]” Karroumeh has been deprived of an opportunity to ask clarifying questions or pursue areas left unexplored by Leslie. In his appeal to the Board, Karroumeh noted that Leslie never directly asked Wright if she was engaged in a fraudulent marriage, never asked for the meaning of the term “lease wise,” never inquired why Karroumeh gave Wright money during the marriage, and never asked whether Wright was prosecuted for marriage fraud. In light of the contradictions and inconsistencies as well as Wright’s motive to testify against her ex-husband, her hearsay statement was unreliable and Karroumeh should have been allowed an opportunity to test it with cross-examination. The admission of her statement under these circumstances was not fundamentally fair. And without this evidence, the government could not meet its burden of demonstrating by clear and convincing evidence that the marriage was a sham. Karroumeh has thus established prejudice.

As we noted in Pouhova, it is unclear whether the government’s reasonable efforts to locate a witness could render unreliable hearsay any more reliable or its use any more fair than if the government made no effort to secure the presence of the witness. 726 F.3d at 1015. Because the government did not make reasonable efforts to bring Wright to the hearing, we reserve that question for a case where it would affect the outcome. In this case, it is clear that Karroumeh’s procedural right to cross-examine the main witness against him was violated, and that this error was prejudicial. We therefore grant his petition and remand for a hearing that provides Karroumeh with all the procedural rights due to him.

PETITION GRANTED.

[1] Clarendon Hills is both the name of a road in Willowbrook, a suburb of Chicago, and the name of a separate suburb, just north of Willowbrook.

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Visa Waiver Program e-Passport Requirement in Effect as of April 1, 2016

Visa Waiver Program e-Passport Requirement Now in Effect

U.S. Customs and Border Protection (CBP) issued a reminder that as of April 1, 2016, all citizens of Visa Waiver Program (VWP)1 countries must possess an electronic passport (e-Passport) to travel to the U.S. under the VWP. An e-Passport is an enhanced secure passport with an embedded electronic chip, and a unique international symbol on the cover. Travelers not in possession of an e-Passport must have a valid nonimmigrant visa to travel to the U.S.

Department of Homeland Security (DHS) Secretary Jeh Johnson issued the following statement on April 1, 2016:

Effective today we will begin to require the use of more electronic passports, or e-Passports, by all travelers coming to the United States from the 38 countries that participate in our Visa Waiver Program.2

An e-Passport contains the security feature of an electronic chip, which holds all of a passenger’s [sic] including name, date of birth and other biographical information. This not only protects privacy and prevents identity theft, but also helps to safely identify a passenger, making travel safer and faster.

Last August, I announced that the Department of Homeland Security and the Department of State would introduce additional or revised security criteria for countries in our Visa Waiver Program,3 including the use of e-Passports for all travelers coming to the U.S. With the passage late last year of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act,4 Congress has mandated that, effective today, all travelers from Visa Waiver countries to the U.S. must have an e-Passport. Travelers who do not have an e-Passport from a Visa Waiver country must obtain a visa to come the U.S.

Our Visa Waiver Program remains a valuable program for lawful trade and travel with our Nation’s most trusted partners, and I am committed to ensuring that it is a secure program as well. The required use of e-Passports is the latest in a series of recent actions that we have taken to strengthen the security of the Program. In the last two years, we have also increased the data collected from travelers from Visa Waiver countries for vetting purposes, and have required increased terrorism and criminal information sharing and increased cooperation on the screening of refugees and asylum seekers with countries in the Visa Waiver Program.

Note: As of March 15, 2016, Canada requires visa-exempt foreign nationals who fly to or transit through Canada to have an Electronic Travel Authorization (eTA). Exceptions include U.S. citizens, and travelers with a valid Canadian visa. During a leniency period from March 15, 2016 until fall 2016, travelers who do not have an eTA will be allowed to board their flight, as long as they have appropriate travel documents, such as a valid passport. Entry requirements for other methods of travel (land or sea) have not changed.

Footnotes
1. Eligible citizens, nationals, and passport holders from designated VWP countries may apply for admission to the U.S. as visitors for business or pleasure for a period of 90 days or less without first obtaining a nonimmigrant visa.
2. The 38 designated countries are Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, Republic of Korea, San Marino, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan, and the United Kingdom.
3. On August 6, 2015, Department of Homeland Security (DHS or Department) Secretary Jeh C. Johnson announced security enhancements to the Visa Waiver Program (VWP).17 DHS and the Department of State, along with certain other federal agencies, will begin introducing a number of additional or revised security criteria for all participants in the VWP (both new and current members). The new security requirements include:

  • use of e-passports for all VWP travelers coming to the U.S.
  • use of the INTERPOL Lost and Stolen Passport Database to screen travelers crossing a Visa Waiver country’s borders
  • permission for the expanded use of U.S. federal air marshals on international flights from Visa Waiver countries to the U.S.

Secretary Johnson pointed out that these security enhancements build on changes DHS made last fall, when it added additional data fields of information in the application (known as the Electronic System for Travel Authorization, or ESTA) of those seeking to travel to the U.S. with Visa Waiver passports. Eligible citizens, nationals, and passport holders from designated VWP countries may apply for admission to the U.S. as visitors for business or pleasure for a period of 90 days or less without first obtaining a nonimmigrant visa. Current designated countries are Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, Republic of Korea, San Marino, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan, and the United Kingdom (England, Scotland, Wales, Northern Ireland, the Channel Islands and the Isle of Man). See 8 CFR § 217.2.
4. Pub. L. No. 114-113, Div. O, Title II, 129 Stat. 2242 (Dec. 18, 2015). See “DOS and DHS Announce Changes to Visa Waiver Program Affecting Dual Nationals of Iran, Iraq, Sudan, or Syria As Well As Persons Who Have Traveled to Those Countries.

Posted in e-Passport Requirement, Visa Waiver Program (VWP) | Leave a comment