CA7 finds IJ credibility determination flawed and remands asylum case

Nadmid, a 57-year-old citizen of Mongolia, came to the U.S. in 2003 on a visitor’s visa. After being arrested for DUI, he voluntarily departed in 2006 and returned to Mongolia, where he started a business. Nadmid returned to the U.S. in 2009. He stated that he was visiting his daughter (who holds a green card), and answered ”no” when asked if he feared returning to Mongolia. In a second interview, after speaking with his daughter, Nadmid stated that, if returned to Mongolia, he feared being killed for rebuffing extortion demands. He described confrontations and threats. An asylum officer, speaking through a translator, determined that Nadmid had a credible fear of persecution. In his asylum application and testimony, Nadmid claimed to have been abducted and beaten. The IJ concluded that Nadmid was not credible, finding inconsistencies in the airport interviews “significant problems.” The IJ gave little weight to newspapers or to a medical certificate. Nadmid’s proposed social group, “Mongolian business owners who seek to expose and end political corruption,” was premised on a profession rather than any immutable, fundamental characteristic. The IJ found that Nadmid did not qualify for withholding of removal or for protection under the Convention Against Torture. The Seventh Circuit remanded, finding the credibility determination flawed.

The immigration judge found Nadmid to lack credibility based largely on airport interviews conducted on his arrival — and in Russian. Since those interviews revealed a significant language barrier, the Seventh Circuit held, the immigration judge was wrong to rely on them to discount Nadmid’s credibility.

When Nadmid arrived in the U.S. in 2009 — he had once overstayed a tourist visa and was voluntarily deported in 2006 — he claimed to be victim of political corruption. Sort of. Initially, during an airport interview at Chicago O’Hare, he said he did not fear returning. That interview was conducted in Russian, which Nadmid had only minimal familiarity with.

Later that day, when interviewed in Mongolian, Nadmid claimed that he had been persecuted for speaking out against corruption, and was facing violence and extortion as a result. In his later asylum application, he provided documentation including a news article, medical reports, and detailed personal testimony.

The IJ concluded that Nadmid did not qualify for asylum because he was not credible and hadn’t corroborated his claim, citing the inconsistencies between his airport interviews and asylum testimony. Much of the IJ’s decision rested on the Russian airport interview where Nadmid had attributed the threats to a personal dispute and had provided different dates for certain incidents.

An IJ may consider airport interviews in determining credibility, but those interviews must be reliable. Reliability is undermined when there is evidence that translation problems impeded understanding, the Seventh stated. Here, Nadmid had been interviewed by a Russian translator, though he had only minimal fluency in that language. The court found the transcript, which contained contradictory statements made in quick succession, to be evidence that Nadmid faced a significant language barrier.

The IJ not only questioned Nadmid’s credibility, but whether a businessman suffering persecution for speaking out against corruption could qualify as a persecuted group at all — a question the Seventh declined addressing.

_________________________________

GONCHIGSHARAV NADMID, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.
No. 14-1477.

United States Court of Appeals, Seventh Circuit.
Argued November 18, 2014.
Decided April 21, 2015.

Before BAUER, MANION, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Gonchigsharav Nadmid, a Mongolian businessman, petitions for review of the denial of his application for asylum and withholding from removal based on (1) his political opinion denouncing two prominent and corrupt politicians by name at a public rally and (2) his membership in the social group of business owners who seek to expose and end corruption between politicians and businesses. Because the adverse credibility determination of the immigration judge was flawed, we grant the petition and remand for further proceedings.

I. BACKGROUND

Nadmid, a 57-year-old native and citizen of Mongolia, came to the United States in 2003 on a visitor’s visa and overstayed. After being arrested in Pennsylvania for driving under the influence, he voluntarily departed in 2006 and returned to Mongolia, where he started a business manufacturing construction materials.

Nadmid returned to the United States in late 2009, presenting the same visa he had obtained six years earlier. He was detained at Chicago O’Hare International Airport, where a Customs and Border Patrol officer, through a Russian translator, conducted two interviews with him. During the first interview, Nadmid answered basic biographical questions, informed the officer that he was coming to the United States to visit his daughter (who holds a green card), and answered “no” when asked if he feared returning to Mongolia. In a second interview later that day (and after speaking with his daughter), Nadmid told the officer that, if returned to Mongolia, he feared being killed by agents from Oyu Tolgoi (a large, partially government-owned mining operation in Mongolia), whose demand for $200,000 he had rebuffed. Nadmid mentioned several instances in which thugs, including a man named Tsegmid, confronted and threatened him at his business. A month later an asylum officer conducted a credible-fear interview, this time through a Mongolian translator, and determined that Nadmid did have a credible fear of persecution.

In an affidavit accompanying his asylum application and in his testimony at his removal hearing in 2011, Nadmid described his political activity in Mongolia and the consequences he faced for speaking out against political corruption. He recounted that in mid-2009 he participated in an anti-corruption protest in the capital city of Ulaanbaatar, at which he spoke out on stage and accused two politicians from the ruling Mongolian People’s Party of misappropriating public funds. Five days after the protest, several unidentified men showed up at his business and assaulted him, knocking him unconscious with a metal rod to his head; afterward he had to be hospitalized. Nadmid’s assailants did not address him directly but he overheard them saying that he “talks too much shit.” The following month the men returned but Nadmid managed to slip out through the back door. Several weeks later two different men confronted him at his business and demanded $200,000, a sum well beyond Nadmid’s means. Nadmid returned home later that day to find that his kitchen window had been smashed by two bricks thrown inside.

A month later Nadmid sought out a reporter to publicize his continued opposition to governmental corruption and to show his harassers that he would not be intimidated. Soon thereafter the newspaper Mongolia Today ran a brief story profiling Nadmid as a small businessman who denounced corruption and refused to contribute to the Mongolian People’s Party.

A few weeks after the article was published, Nadmid recounted further, he was abducted at his business and taken to a cemetery. He managed to escape with the help of one of the assailants, Tsegmid, who had been a business acquaintance of his in the 1990s. After the incident, Nadmid shuttered his business and hid at campsites away from the capital; he left Mongolia in December. The day after he left, a no-tice bearing his photo was published in the Ulaanbaatar Times seeking information on his whereabouts and offering a reward.

Nadmid supplemented his application with the newspaper profile, the published notice seeking his whereabouts, a medical certificate confirming his post-beating treatment, his business license, and an excerpt from a report by the United States Agency for International Development documenting pervasive and increasing corruption in business and politics in Mongolia. He also offered the declaration and testimony of Dr. Alicia Campi, the president of a Mongolian business consultancy company who holds a Ph.D. in Mongolian studies and specializes in Mongolian politics, economics, and human rights. Dr. Campi testified that corruption in Mongolia was widespread, that the two politicians Nadmid had singled out at the rally were known for corruption and violent retaliation against opponents, that she had been able to confirm the authenticity of Nadmid’s identification documents through contacts in Mongolia, and that the newspaper article and notice resembled those she had seen in Mongolian newspapers.

The IJ concluded that Nadmid did not qualify for asylum because he was not credible and did not sufficiently corroborate his claim. Nadmid testified consistently with his written affidavit, the IJ acknowledged, but the inconsistencies between his testimony and the transcripts of his two airport interviews were “significant problems.” In the airport interviews, for instance, Nadmid had portrayed the threats as arising from a personal dispute and did not mention speaking at an anticorruption rally. At these interviews, he also give different dates for the alleged incidents and described Tsegmid’s role inconsistently. Nadmid, the IJ added, did not convincingly explain why he overstayed his visa in 2003 or why his persecutors believed he would have as much as $200,000 after he returned to Mongolia with such few assets.

Because his testimony was not credible, the IJ determined that Nadmid needed to submit corroborating evidence. The IJ gave little weight to the newspapers, which he assumed had not been identified in the record, or to the medical certificate because it was poorly translated. The IJ also found Dr. Campi’s testimony reliable but insufficient because she lacked personal knowledge of Nadmid’s story. In the IJ’s view, Nadmid should have provided further documentation of his business activities in Mongolia and affidavits from friends, family members, or employees who witnessed his speech at the 2009 rally or the attacks against him.

And even if Nadmid’s testimony were credited, the IJ added, members of Nadmid’s proposed social group — “Mongolian business owners who seek to expose and end political corruption of private businesses” — had nothing in common except being targeted for persecution, and was premised on a profession rather than any immutable and fundamental characteristic. Nor could Nadmid demonstrate a nexus between a protected ground and the persecution he suffered because he showed only that his attackers were “motivated by greed” and sought simply to extort money from him. Finally the IJ found that Nadmid did not qualify for withholding of removal or for protection under the Convention Against Torture.

The Board upheld the IJ’s findings about credibility, corroboration, and CAT, and dismissed Nadmid’s appeal. It did not consider the IJ’s alternative findings concerning social group membership or nexus.

II. ANALYSIS

In his petition for review, Nadmid challenges the adverse credibility finding and specifically the reliability of the airport interviews on grounds that he is not fluent in Russian, as reflected in interview transcripts that reveal significant inconsistencies and language difficulties.

Although an IJ may consider airport interviews in making a credibility determination, they must be reliable, and may be less so where the asylum applicant’s answers suggest that translation problems have made it difficult to understand the questions posed to him. Moab v. Gonzales, 500 F.3d 656, 660-61 (7th Cir. 2007); Balogun v. Ashcroft, 374 F.3d 492, 504-05 (7th Cir. 2004). These problems are particularly acute when the translator does not speak the applicant’s native language, but instead translates the questions into a language in which the applicant is only minimally proficient. See Ememe v. Ashcroft, 358 F.3d 447, 451-52 (7th Cir. 2004); Sing v. INS, 292 F.3d 1017, 1022-23 (9th Cir. 2002).

We agree with Nadmid that the IJ incorrectly relied on the airport interviews to discredit him. First, the IJ mischaracterized the record when he stated that Nadmid testified that he told the Customs and Border Patrol officer that he “requested a Russian interpreter.” The record does not reflect that Nadmid testified to making such a request; he testified that immigration officers asked him what languages he spoke and provided a Russian interpreter after he responded that he spoke Russian. Second, the IJ concluded that the transcripts of the airport interviews showed “detailed, coherent responses.” But the transcript contains several contradictory statements made in quick succession that suggest that Nadmid faced a significant language barrier in understanding the questions being asked him.[1] Third, the IJ stated that Nadmid had learned Russian when he had attended a technical school in Russia for three years. But the IJ did not acknowledge that Nadmid attended the technical school more than 30 years before the airport interviews, that the classes there were taught both in Russian and through interpreters, and that Nadmid stated that he did not use Russian in his business in Mongolia. Finally, the IJ disregarded Nadmid’s repeated demurrals that he spoke Russian poorly — at the airport interview itself, at his first appearance in the immigration court less than two months later, and during his testimony at the removal hearing.

The government does not respond to Nadmid’s challenge to the adverse credibility finding, and instead argues that the petition must outright be denied because Nadmid failed before the Board and in this court to contest a separate dispositive issue — the IJ’s ruling that he failed to corroborate his claim with reasonably available evidence. But the government’s first contention, that Nadmid failed to exhaust his administrative remedies by not raising the corroboration issue before the Board, is incorrect. The Board independently addressed the issue in its decision, and once the Board addresses an issue on its own, it is exhausted. See 8 U.S.C. § 1252(d)(1); Arobelidze v. Holder, 653 F.3d 513, 516-17 (7th Cir. 2011). The government, however, is correct that Nadmid has waived the issue by failing to discuss it in his brief here. See Firishchak v. Holder, 636 F.3d 305, 309 n.2 (7th Cir. 2011).

Waiver of the corroboration issue, though, does not resolve the case in the government’s favor. It is generally true that an applicant’s failure to comply with an IJ’s request for corroborating evidence will doom a claim when such evidence is reasonably available. See 8 U.S.C. § 1158(b)(1)(B)(ii); Raghunathan v. Holder, 604 F.3d 371, 379 (7th Cir. 2010); Krishnapillai v. Holder, 563 F.3d 606, 618-19 (7th Cir. 2009). But an applicant’s testimony alone “may be sufficient to sustain the applicant’s burden without corroboration.” 8 U.S.C. § 1158(b)(1)(B)(ii). Thus, if an IJ explicitly premises a demand for corroborating evidence on an adverse credibility determination that is flawed, as happened here, then a reassessment of credibility may turn out to remove the need for corroboration. See Rapheal v. Mukasey, 533 F.3d 521, 528-30 (7th Cir. 2008). The case must be remanded for a reassessment of Nadmid’s credibility.

Nadmid also challenges the IJ’s alternative findings that, assuming Nadmid to be credible, his proposed social group lacked an immutable or fundamental characteristic and that no nexus could be shown between the persecution he suffered and his political opinion or membership in his particular social group. The Board did not address these alternative findings, and we will not address them in the first instance. See INS v. Ventura, 537 U.S. 12, 16-17 (2002); Sibanda v. Holder, 778 F.3d 676, 681 (7th Cir. 2015). On remand they deserve scrutiny.

III. CONCLUSION

We GRANT the petition and remand for further proceedings consistent with this opinion.

[1] The transcript shows confusion over the name of the firm ostensibly lending money to Nadmid and whether the firm lent money to Nadmid or sought merely to extort him:

Q: Who is going to kill you?

A: A private firm lent me a large sum of money and I have failed to repay the money. Now they have been threatening me.

Q: What is the name of the firm?

A: The company name is Tsegmid.

. . .

Q: How much money did you borrow from them?

A: This is the company that takes my money.

Q: You said that they lent you money?

A: They only take money.

. . .

Q: How do they take your money?

A: They have never taken any money from me, they seek to take money from me.

. . .

Q: You told me that you borrowed money from them. When did you borrow money from them?

A: No it never happened.

. . .

Q: Who contacts you in the company?

A: Tsegmid is the name of a person, not the company.

Q: Why did you tell me it was the name of a company?

A: My Russian isn’t very good.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, credibility determination, political asylum, political corruption | Leave a comment

BIA Precedent Decisions Volume 26 (2012-2015) Executive Office for Immigration Review

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

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

The November 7, 2008, opinion, Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), is vacated in its entirety.
Download Case

Matter of Cristoval SILVA-TREVINO, Respondent
Decided by Attorney General April 10, 2015
U.S. Department of Justice Office of the Attorney General

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

BEFORE THE ATTORNEY GENERAL

On November 7, 2008, Attorney General Mukasey issued an opinion in this matter vacating the August 8, 2006, decision of the Board of Immigration Appeals and remanding respondent’s case for further proceedings in accordance with his opinion. See Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008). On remand, the Immigration Judge, applying Attorney General Mukasey’s opinion, issued a new decision finding respondent ineligible for discretionary relief from deportation. The Board affirmed that decision. The respondent then filed a petition for review with the United States Court of Appeals for the Fifth Circuit. On January 30, 2014, the Fifth Circuit rejected Attorney General Mukasey’s opinion as contrary to the plain language of the statute, vacated the Board’s decision, and remanded this matter to the Board for further proceedings consistent with the court’s opinion. See Silva-Trevino v. Holder, 742 F.3d 197, 200−06 (5th Cir. 2014). For the reasons stated herein, I have determined that it is appropriate to vacate Attorney General Mukasey’s November 7, 2008, opinion in this matter.

The central issue raised by this case is how to determine whether an alien has been “convicted of . . . a crime involving moral turpitude” within the meaning of section 212(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2) (2012). The Board initially addressed this issue in its August 8, 2006, decision in this case, determining that respondent’s conviction for the criminal offense of “indecency with a child” should not be considered a crime of moral turpitude because the Texas statute under which he had been convicted criminalized at least some conduct that did not involve moral turpitude and was thus not categorically a crime involving moral turpitude. Matter of Silva-Trevino, 24 I&N Dec. at 690−92. After that decision had issued, Attorney General Gonzales directed the Board to refer the case to him for further review. See Att’y Gen. Order No. 2889-2007 (July 10, 2007); see also 8 C.F.R. § 1003.1(h)(1)(i) (2007) (providing that the Attorney General may direct the Board to refer cases to him “for review of [the Board’s] decision”). After review, Attorney General Gonzales’s successor, Attorney General Mukasey, issued an opinion vacating the Board’s August 8, 2006, decision and establishing a new three-step framework to be used by Immigration Judges and the Board in determining whether an alien had been convicted of a crime involving moral turpitude. Att’y Gen. Order No. 3016-2008 (Nov. 7, 2008); Matter of Silva-Trevino, 24 I&N Dec. at 687−90 & n.1, 704; cf. section 103(a)(1) of the Act, 8 U.S.C. § 1103(a)(1) (2012) (a “determination and ruling by the Attorney General with respect to all questions of law shall be controlling”).

In the first step of the framework, Attorney General Mukasey directed Immigration Judges and the Board to “engage in a ‘categorical inquiry’” in order to determine “whether moral turpitude necessarily inheres in all cases that have a realistic probability of being prosecuted” under a particular criminal provision. Matter of Silva-Trevino, 24 I&N Dec. at 696−97 (relying on Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). Where this categorical analysis did not resolve the moral turpitude inquiry, the Attorney General instructed adjudicators to proceed to the second step, a “modified categorical” inquiry “pursuant to which adjudicators consider whether the alien’s record of conviction evidences a crime that in fact involved moral turpitude.” Id. at 698. Recognizing that “[m]ost courts . . . have limited this second-stage inquiry to the alien’s record of conviction,” the Attorney General concluded that a third step was necessary because “when the record of conviction fails to show whether the alien was convicted of a crime involving moral turpitude, immigration judges should be permitted to consider evidence beyond that record if doing so is necessary and appropriate to ensure proper application of the Act’s moral turpitude provisions.” Id. at 699. Accordingly, Attorney General Mukasey’s opinion directed Immigration Judges and the Board to consider, at the third step in the moral turpitude inquiry, “any additional evidence the adjudicator determines is necessary or appropriate to resolve accurately the moral turpitude question” when “the record of conviction does not resolve the inquiry.” Id. at 704. The Attorney General then remanded the case to the Board to “reconsider, consistent with [his] opinion, whether the crime respondent committed involved moral turpitude.” Id. at 709.

On remand, the Board sent the case back to the Immigration Judge who—applying the third step in Attorney General Mukasey’s framework— considered evidence outside of the record of conviction to conclude that respondent’s conviction had involved moral turpitude because respondent should have known that the victim of his crime was a minor. Silva-Trevino, 742 F.3d at 198−99. As a result, the Immigration Judge found respondent was inadmissible and thus ineligible for discretionary relief from deportation under section 212(a)(2) of the Act. Id. On review, the Board affirmed. Id.

In January of last year, on respondent’s petition for review, the Fifth Circuit held that “convicted of” as used in section 212(a)(2) did not permit Immigration Judges to inquire into relevant evidence outside of the record of conviction in order to classify a particular conviction as one involving moral turpitude. Id. at 200−01. In so doing, the court rejected the third step of Attorney General Mukasey’s framework as contrary to the unambiguous language of the statute and thus refused to accord the Silva-Trevino opinion deference. See id. at 203 (“Where, as here, Congress has spoken directly to the statutory question at hand, our precedent need not yield to an agency’s contrary interpretation.”).

As the Fifth Circuit recognized, in so ruling it became the fifth circuit court of appeals to reject Attorney General Mukasey’s construction of the statute. Id. at 200 & n.1.1 These courts have all agreed that the phrase “convicted of” as used in the Act forecloses any inquiry into evidence outside of the record of conviction. Id. Two other circuits have accorded deference to Attorney General Mukasey’s construction of the statute as reasonable and permitted such an extrinsic inquiry.2 As a result, Attorney General Mukasey’s opinion in this matter has not accomplished its stated goal of “establish[ing] a uniform framework for ensuring that the Act’s moral turpitude provisions are fairly and accurately applied.” Matter of Silva-Trevino, 24 I&N Dec. at 688. Instead, the circuits are split, and the variance between Attorney General Mukasey’s binding opinion and the contrary controlling precedent in some circuits forces Immigration Judges and the Board to apply different standards in different jurisdictions. See Silva-Trevino, 742 F.3d at 205.

In addition, in the time since Attorney General Mukasey released his opinion, the Supreme Court has issued several decisions that may bear on administrative determinations of whether an alien has been convicted of a crime involving moral turpitude. In Carachuri-Rosendo v. Holder, the Court held that adjudicators could not consider uncharged conduct to determine whether an alien had been “convicted of” illicit trafficking, an aggravated felony under the Act. 560 U.S. 563, 581−82 (2010). Applying Carachuri-Rosendo 3 years later, the Court in Moncrieffe v. Holder reaffirmed that the phrase “convicted of” required a categorical approach, and it rejected the Government’s argument that adjudicators could engage in a “circumstance-specific” analysis of a particular drug conviction to determine if the quantity of drugs involved made it an aggravated felony. 133 S. Ct. 1678, 1690−92 (2013); see also Kawashima v. Holder, 132 S. Ct. 1166, 1172 (2012) (applying the categorical approach to determine if an alien had been convicted of an offense involving fraud or deceit). These decisions cast doubt on the continued validity of the third step of the framework set out by Attorney General Mukasey’s opinion, which directs Immigration Judges and the Board to go beyond the categorical and modified categorical approaches and inquire into facts outside of the formal record of conviction in order to determine whether a particular conviction involves moral turpitude.
__________________
1 See Olivas-Motta v. Holder, 746 F.3d 907, 911−16 (9th Cir. 2013) (amended opinion); Prudencio v. Holder, 669 F.3d 472, 480−84 (4th Cir. 2012); Fajardo v. U.S. Att’y Gen., 659 F.3d 1303, 1307−11 (11th Cir. 2011); Jean-Louis v. Att’y Gen. of U.S., 582 F.3d 462, 472−82 (3d Cir. 2009).
2 Bobadilla v. Holder, 679 F.3d 1052, 1057 (8th Cir. 2012); Mata-Guerrero v. Holder, 627 F.3d 256, 260 (7th Cir. 2010)
__________________

In view of the decisions of five courts of appeals rejecting the framework set out in Attorney General Mukasey’s opinion—which have created disagreement among the circuits and disuniformity in the Board’s application of immigration law—as well as intervening Supreme Court decisions that cast doubt on the continued validity of the opinion. When, and to what extent, adjudicators may use a modified categorical approach and consider a record of conviction in determining whether an alien has been “convicted of . . . a crime involving moral turpitude” in applying section 212(a)(2) of the Act and similar provisions; Whether an alien who seeks a favorable exercise of discretion under the Act after having engaged in criminal acts constituting the sexual abuse of a minor should be required to make a heightened evidentiary showing of hardship or other factors that would warrant a favorable exercise of discretion. See Matter of Jean, 23 I&N Dec. 373 (A.G. 2002) (addressing the exercise of discretion in view of alien’s criminal acts). The Board should solicit and consider briefs from the parties and interested amici as it deems appropriate to ensure that its conclusions on these issues are reached after full and fair consideration of all relevant arguments. I conclude that it is appropriate to vacate the November 7, 2008, opinion in its entirety.3 My decision to do so does not mean that I disapprove of every aspect of that opinion. But because the Board is obliged to follow decisions of the Attorney General except to the extent of a contrary directive from a reviewing court, see, e.g., Matter of Abdelghany, 26 I&N Dec. 254, 265 (BIA 2014), only a complete vacatur will enable the Board to develop a uniform standard for the proper construction and application of section 212(a)(2) of the Act and similar provisions in light of all relevant precedents and arguments.
_______________
3 Nothing in this order is intended to affect Board determinations that an offense entails or does not entail “reprehensible conduct and some form of scienter” and is or is not a crime involving moral turpitude for that reason. Matter of Silva-Trevino, 24 I&N Dec. at 706 n.5. In addition to Silva-Trevino, that standard has been applied in the following Board precedents: Matter of Ortega-Lopez, 26 I&N Dec. 99 (BIA 2013); Matter of Leal, 26 I&N Dec. 20 (BIA 2012); Matter of Ruiz-Lopez, 25 I&N Dec. 551 (BIA 2011); Matter of Guevera-Alfaro, 25 I&N Dec. 417 (BIA 2011); and Matter of Louissaint, 24 I&N Dec. 754. As an interim matter, those determinations, as well as determinations in nonprecedential decisions applying the standard, shall remain valid. I leave to the Board whether to retain, modify, or clarify them in any respect.
_______________

In light of this vacatur, the Board may address, in this case and other cases as appropriate, the following issues:

1. How adjudicators are to determine whether a particular criminal offense is a crime involving moral turpitude under the Act;

2. When, and to what extent, adjudicators may use a modified categorical approach and consider a record of conviction in determining whether an alien has been “convicted of . . . a crime involving moral turpitude” in applying section 212(a)(2) of the Act and similar provisions;

3. Whether an alien who seeks a favorable exercise of discretion under the Act after having engaged in criminal acts constituting the sexual abuse of a minor should be required to make a heightened evidentiary showing of hardship or other factors that would warrant a favorable exercise of discretion. See Matter of Jean, 23 I&N Dec. 373 (A.G. 2002) (addressing the exercise of discretion in view of alien’s criminal acts).

The Board should solicit and consider briefs from the parties and interested amici as it deems appropriate to ensure that its conclusions on these issues are reached after full and fair consideration of all relevant arguments.

The November 7, 2008, opinion, Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), is vacated in its entirety.

Posted in Attorney General and BIA Precedent Decisions, CIMT, Crime involving moral turpitude | Leave a comment

Three USCIS Administrative Appeals Office Decisions Published

Matter of Leacheng International, Inc.

(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.

The link to this decision: http://www.justice.gov/eoir/vll/intdec/vol26/3830.pdf
_________________________________________________________________
Matter of Christo’s, Inc.

(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.

The link to this decision: http://www.justice.gov/eoir/vll/intdec/vol26/3831.pdf
_________________________________________________________________
Matter of Simeio Solutions, LLC

(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.

The link to this decision: http://www.justice.gov/eoir/vll/intdec/vol26/3832.pdf

Administrative Appeals Office

Posted in AAO, AAO Practice Manual, AAO/Commissioner Decisions, Administrative Appeals Office, BIA Precedent Decisions Volume 26, Board of Immigration Appeals | Leave a comment

Visa Bulletin For April 2015

Visa Bulletin For April 2015

Number 76
Volume IX
Washington, D.C

View as Printer Friendly PDF

A. STATUTORY NUMBERS

1.  This bulletin summarizes the availability of immigrant numbers during April. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status.  Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by March 11th.  If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed.  The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.  Only applicants who have a priority date earlier than the cut-off date may be allotted a number.  If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category "unavailable", and no further requests for numbers would be honored.

2.  Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed.  Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal.  The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit.  These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

4.  Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:   

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.) 

Family-Sponsored All Chargeability Areas Except Those Listed CHINA-mainland born INDIA MEXICO PHILIPPINES
F1 01AUG07 01AUG07  01AUG07 01NOV94 01FEB05
F2A 01AUG13 01AUG13 01AUG13 08JUL13 01AUG13
F2B 22AUG08 22AUG08 22AUG08 01FEB95  01APR04
F3 08FEB04 08FEB04 08FEB04 01APR94 08AUG93
F4 15JUN02 15JUN02 15JUN02 08JUL97 22SEP91

*NOTE:  For April, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 08JUL13.  F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 08JUL13 and earlier than 01AUG13.  (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.) 

5.  Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows: 

EMPLOYMENT-BASED PREFERENCES

First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.      

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers".

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.) 

Employment- Based

All Chargeability Areas Except Those Listed

CHINA – mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01APR11 01SEP07 C C
3rd 01OCT14 01JAN11 08JAN04 01OCT14 01OCT14
Other Workers 01OCT14 15AUG05 08JAN04 01OCT14 01OCT14
4th C C C C C
Certain Religious Workers C C C C C

5th
Targeted
Employment
Areas/
Regional Centers
and Pilot Programs

C C C C C

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year.  This reduction is to be made for as long as necessary to offset adjustments under the NACARA program.  Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

6.  The Department of State has a recorded message with the cut-off date information which can be heard at:  (202) 485-7699.  This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

B.  DIVERSITY IMMIGRANT (DV) CATEGORY FOR THE MONTH 
     OF APRIL
 

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2015 annual limit to 50,000. DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.

For April, immigrant numbers in the DV category are available to qualified DV-2015 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 30,700 Except:
Egypt:    18,200
Ethiopia: 22,550
ASIA 4,725

EUROPE 28,450
NORTH AMERICA (BAHAMAS) 6
OCEANIA 975
SOUTH AMERICA,
and the CARIBBEAN
1,025

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery.  The year of entitlement for all applicants registered for the DV-2015 program ends as of September 30, 2015.  DV visas may not be issued to DV-2015 applicants after that date.  Similarly, spouses and children accompanying or following to join DV-2015 principals are only entitled to derivative DV status until September 30, 2015.  DV visa availability through the very end of
FY-2015 cannot be taken for granted.  Numbers could be exhausted prior to September 30.

C.  THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS 
     WHICH WILL APPLY IN MAY

For May, immigrant numbers in the DV category are available to qualified DV-2015 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 32,700 Except:
Egypt:      20,900
Ethiopia:   25,750
ASIA 5,275
EUROPE 30,300
NORTH AMERICA (BAHAMAS) 6
OCEANIA 1,075
SOUTH AMERICA,
and the CARIBBEAN
1,025

D.  VISA AVAILABILITY – CHINA-mainland born

Employment Third Preference: The cut-off date for this category was advanced very rapidly during the past seven months, in an attempt to generate demand to ensure that all numbers under the annual limit could be made available. Item E in the November 2014 Visa Bulletin notified readers that this rapid movement could require "corrective" action as early as February, once demand began to materialize. 

Continued heavy demand by applicants with very early priority dates has required a retrogression of this cut-off date for the month of April, to hold number use within the annual numerical limit. Potential forward movement of this cut-off date during the remainder of the fiscal year is dependent on the amount of demand received for applicants with very early priority dates. 

Employment Fifth Preference: Item D of the February Visa Bulletin advised readers that the expected increase in demand would require the establishment of a cut-off date during the summer to hold number use within the annual numerical limit. The establishment of that date can be expected no later than June. 

E.  OBTAINING THE MONTHLY VISA BULLETIN

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address:

listserv@calist.state.gov

and in the message body type:
Subscribe Visa-Bulletin 
(example: Subscribe Visa-Bulletin)

To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail message to the following E-mail address:

listserv@calist.state.gov

and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa cut-off dates which can be heard at: (202) 485-7699. The recording is normally updated on/about the 10th of each month with information on cut-off dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:

VISABULLETIN@STATE.GOV

(This address cannot be used to subscribe to the Visa Bulletin.)

Department of State Publication 9514
CA/VO:   March 11, 2015

Posted in Visa Bulletin, Visa Bulletin For April 2015 | Leave a comment