Expunging, sealing criminal records, Illinois

EXPUNGEMENT: When a record is expunged, it is physically destroyed by each law enforcement agency, as if it never existed.

SEALED: When an Illinois State Police record is sealed, it is no longer available to your employer or other members of the public, but can still be seen by law enforcement agencies. When a clerk’s office record is sealed it is no longer available to employers or other members of the public, but can be viewed by members of the public if a judge specifically orders that they can see it.

CASES THAT CAN BE EXPUNGED:

1. Cases in which you were acquitted, released without conviction (including cases in which you were not charged), there was a not guilty finding or no probable cause finding, or nolle prosequi –Petitions to expunge may be filed immediately. If, however, your case was stricken off the call with leave to reinstate (“SOL”) or a non-suit, Petitions to expunge can only be granted 120 days (if demand for trial) or 160 days (if no demand for trial) after the case was SOL, and only if the prosecutor did not reinstate your case during this time period.

2. Cases, other than those listed in section 3, below, in which an Order of supervision was entered and two (2) years have passed since discharge and dismissal of supervision.

3. Cases in which an Order of supervision was entered and five (5) years have passed since termination of supervision for the following charges:

Retail Theft – 720 ILCS 5/16 A-3
Reckless Driving – 625 ILCS 5/11-503
Display of False Insurance – 625 ILCS 5/3-710
Suspended Registration for Non-Insurance – 625 ILCS 5/3-708
Uninsured Motor Vehicle – 625 ILCS 5/3-707

4. Cases in which an Order was entered terminating probation and at least five (5) years have passed since the order of termination was entered, under the following statutes:

Controlled Substance Act (410 Probation) – 720 ILCS 570/410
Cannabis Control Act (First Offender Only) – 720 ILCS 550/10

CASES THAT CANNOT BE EXPUNGED

Convictions, including:

1. A guilty plea, guilty finding, or guilty verdict resulting in a sentence other than probation under the Cannabis or Controlled Substances Acts.

2. Probation (except if you received 410 probation under the Controlled Substance Act or under the Cannabis Act)

3. Cases where the defendant was granted supervision for or was convicted of a sexual offense committed against a minor under 18 years of age (20 ILCS 2630/5(g))

4. Conditional Discharge

5. Time Considered Served

6. DUI/DWI Supervision

Once your record has been expunged, it “may not be considered by any private or public entity in employment matters, certification, licensing, revocation or certification or licensure, or registration,” (20 ILCS 2630/12) Employers are not allowed to ask you if you have had records expunged, and you are not required to disclose this information on employment applications. (20 ILCS 2630/12)

CASES THAT CAN BE SEALED

1. You are an adult or minor prosecuted as an adult for a misdemeanor, or municipal ordinance violation in which you were acquitted; released without being convicted (including cases where you were not charged), your conviction was reversed; or you received a sentence of supervision for a misdemeanor AND you have not been convicted of a felony or misdemeanor or placed on supervision for a misdemeanor for three (3) years after being acquitted, or released, or your conviction being reversed, or having completed the terms and conditions of your supervision.

2. You are an adult or minor prosecuted as and adult for a qualifying Class 4 Felony or misdemeanor which resulted in a conviction AND you have not been convicted of a felony or misdemeanor or placed on supervision for a misdemeanor for four (4) years after completing your sentence.

Once your record has been sealed, it “may not be considered by any private or public entity in employment matters, certification, licensing, revocation or certification or licensure, or registration,” (20 ILCS 2630/12) Employers are not allowed to ask you if you have had records expunged, and you are not required to disclose this information on employment applications. (20 ILCS 2630/12).

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Expunging and Sealing Criminal Records in Illinois

Cases that CAN be expunged:

a. Cases in which you are acquitted or released without being convicted
(including cases in which you have not been charged). Petitions to
Expunge may be filed immediately upon acquittal or release without
conviction.

b. Cases, other than those listed in section c. below, in which an Order of
supervision was entered and two (2) years have passed since discharge
and dismissal of supervision.

c. Cases in which an Order of supervision was entered and five (5) years
have passed since termination of supervision for the following charges:

• 625 ILCS 5/3-707 – Uninsured Motor Vehicle
• 625 ILCS 5/3-708 – Suspended Registration for Non-Insurance
• 625 ILCS 5/3-710 – Display of False Insurance
• 625 ILCS 5/5-401.3 – Scrap Processor to Keep Records
• 625 ILCS 5/11-503 – Reckless Driving
• 720 ILCS 5/12-3.2 – Domestic Battery
• 720 ILCS 5/12-15 – Criminal Sexual Abuse
• 720 ILCS 5/12-4.3 – Aggravated battery of a Child
• 720 ILCS 5/16 A-3 – Offense Retail Theft

d. Cases in which an Order was entered terminating probation and at
least five (5) years have passed since the order of termination was
entered, under the following statutes

• 720 ILCS 550/10 – Cannabis Control Act (First Time Offender
Only)
• 720 ILCS 570/410 – Control Substance Act (First Time Offender
Only)
• 720 ILCS 570/312(j) – Steroid Control Act
• 20 ILCS 305/10-102 or 301/40-10 – Alcohol and Drug Dependency
Act

e. Cases in which the Governor has issued a pardon that specifically
states that your records should be expunged.

Cases that CANNOT be expunged:
Convictions, including:

a. A guilty plea, guilty finding, or guilty verdict which results in a sentence
other than probation under the Cannabis, Controlled Substances, Steroid
Control, and Alcohol and Drug Dependency Acts (720 ILCS 550/10, 720
ILCS 570/410, 720 ILCS 570/312(j), and 20 ILCS 305/10-102 or 301/40-
10),

b. Probation (except under the Cannabis, Controlled Substances, Steroid
Control, and Alcohol and Drug Dependency Acts);

c. Cases where the defendant was granted supervision for or was
convicted of a sexual offense committed against a minor under 18 years
of age (20 ILCS 2630/5(g));

d. Conditional Discharge; and

e. D.U.I. Supervision (20 ILCS 2630/5).

Cases that CAN be Sealed:

Adult or minor prosecuted as an adult for misdemeanors or municipal
ordinance violations which result in an acquittal, release without
conviction, conviction reversed, or a sentence of supervision for
misdemeanor AND Defendant/Petitioner was not convicted of a felony or
misdemeanor or placed on supervision for a misdemeanor for 3 years
after the acquittal; or release or reversal of conviction, or completion of
the terms and conditions of the supervision.
Adult or minor prosecuted as an adult which results in a conviction for a
misdemeanor AND Defendant/Petitioner was not convicted of a felony or
misdemeanor or placed on supervision for a misdemeanor for 4 years
after the completion of the sentence.

Cases that CANNOT be Sealed:

Pursuant to 20 ILCS 2630/5, the following case types and dispositions are
not eligible for sealing of records:

DUI, 625 ILCS 5/11-501
Article 11, Criminal Code
Criminal Sexual Abuse, 720 ILCS 5/12-15
Violation of Order of Protection, 720 US 5/12-30
Dog Fighting, 720 US 5/26-5
Misdemeanor Crime of Violence under Section 2, Criminal Victims
Compensation Act
Class A Misdemeanor, Humane Care of Animals Act
Sex Offender Registration Act Offenses
_______________________________________________________________________

20 ILCS 2630/5
(g) Except as otherwise provided in subsection (c-5) of this Section, the court shall not order the sealing or expungement of the arrest records and records of the circuit court clerk of any person granted supervision for or convicted of any sexual offense committed against a minor under 18 years of age. For the purposes of this Section, “sexual offense committed against a minor ” includes but is not limited to the offenses of indecent solicitation of a child or criminal sexual abuse when the victim of such offense is under 18 years of age.

(h)(1) Applicability. Notwithstanding any other provision of this Act to the contrary and cumulative with any rights to expungement of criminal records, this subsection authorizes the sealing of criminal records of adults and of minors prosecuted as adults.

(2) Sealable offenses. The following offenses may be sealed:

(A) All municipal ordinance violations and misdemeanors, with the exception of the following:

(i) violations of Section 11-501 of the Illinois Vehicle Code or a similar provision of a local ordinance;

(ii) violations of Article 11 of the Criminal Code of 1961 or a similar provision of a local ordinance, except Section 11-14 of the Criminal Code of 1961 as provided in clause B(i) of this subsection (h);

(iii) violations of Section 12-15, 12-30, or 26-5 of the Criminal Code of 1961 or a similar provision of a local ordinance;

(iv) violations that are a crime of violence as defined in Section 2 of the Crime Victims Compensation Act or a similar provision of a local ordinance;

(v) Class A misdemeanor violations of the Humane Care for Animals Act; and

(vi) any offense or attempted offense that would subject a person to registration under the Sex Offender Registration Act.

(B) Misdemeanor and Class 4 felony violations of:

(i) Section 11-14 of the Criminal Code of 1961;

(ii) Section 4 of the Cannabis Control Act;

(iii) Section 402 of the Illinois Controlled Substances Act; and

(iv) Section 60 of the Methamphetamine Control and Community Protection Act [720 ILCS 646/60]

However, for purposes of this subsection (h), a sentence of first offender probation under Section 10 of the Cannabis Control Act, Section 410 of the Illinois Controlled Substances Act, or Section 70 of the Methamphetamine Control and Community Protection Act [720 ILCS 646/70] shall be treated as a Class 4 felony conviction.

(3) Requirements for sealing. Records identified as sealable under clause (h) (2) may be sealed when the individual was:

(A) Acquitted of the offense or offenses or released without being convicted.

(B) Convicted of the offense or offenses and the conviction or convictions were reversed.

(C) Placed on misdemeanor supervision for an offense or offenses; and

(i) at least 3 years have elapsed since the completion of the term of supervision, or terms of supervision, if more than one term has been ordered; and

(ii) the individual has not been convicted of a felony or misdemeanor or placed on supervision for a misdemeanor or felony during the period specified in clause (i).

(D) Convicted of an offense or offenses; and

(i) at least 4 years have elapsed since the last such conviction or term of any sentence, probation, parole, or supervision, if any, whichever is last in time; and

(ii) the individual has not been convicted of a felony or misdemeanor or placed on supervision for a misdemeanor or felony during the period specified in clause (i).

(4) Requirements for sealing of records when more than one charge and disposition have been filed. When multiple offenses are petitioned to be sealed under this subsection (h), the requirements of the relevant provisions of clauses (h)(3)(A) through (D) each apply. In instances in which more than one waiting period is applicable under clauses (h)(C)(i) and (ii) and (h)(D)(i) and (ii), the longer applicable period applies, and the requirements of clause (h) (3) shall be considered met when the petition is filed after the passage of the longer applicable waiting period. That period commences on the date of the completion of the last sentence or the end of supervision, probation, or parole, whichever is last in time.

(5) Subsequent convictions. A person may not have subsequent felony conviction records sealed as provided in this subsection (h) if he or she is convicted of any felony offense after the date of the sealing of prior felony records as provided in this subsection (h).

(6) Notice of eligibility for sealing. Upon acquittal, release without conviction, or being placed on supervision for a sealable offense, or upon conviction of a sealable offense, the person shall be informed by the court of the right to have the records sealed and the procedures for the sealing of the records.

(7) Procedure. Upon becoming eligible for the sealing of records under this subsection (h), the person who seeks the sealing of his or her records shall file a petition requesting the sealing of records with the clerk of the court where the charge or charges were brought. The records may be sealed by the Chief Judge of the circuit wherein the charge was brought, any judge of that circuit designated by the Chief Judge, or in counties of less than 3,000,000 inhabitants, the presiding trial judge at the defendant’s trial, if any. If charges were brought in multiple jurisdictions, a petition must be filed in each such jurisdiction. The petitioner shall pay the applicable fee, if not waived.

(A) Contents of petition. The petition shall contain the petitioner’s name, date of birth, current address, each charge, each case number, the date of each charge, the identity of the arresting authority, and such other information as the court may require. During the pendency of the proceeding, the petitioner shall promptly notify the clerk of the court of any change of address.

(B) Drug test. A person filing a petition to have his or her records sealed for a Class 4 felony violation of Section 4 of the Cannabis Control Act or for a Class 4 felony violation of Section 402 of the Illinois Controlled Substances Act must attach to the petition proof that the petitioner has passed a test taken within the previous 30 days before the filing of the petition showing the absence within his or her body of all illegal substances in violation of either the Illinois Controlled Substances Act or the Cannabis Control Act.

(C) Service of petition. The clerk shall promptly serve a copy of the petition on the State’s Attorney or prosecutor charged with the duty of prosecuting the offense, the Department of State Police, the arresting agency and the chief legal officer of the unit of local government effecting the arrest.

(D) Entry of order. Unless the State’s Attorney or prosecutor, the Department of State Police, the arresting agency or such chief legal officer objects to sealing of the records within 90 days of notice the court shall enter an order sealing the defendant’s records.

(E) Hearing upon objection. If an objection is filed, the court shall set a date for a hearing and notify the petitioner and the parties on whom the petition had been served, and shall hear evidence on whether the sealing of the records should or should not be granted, and shall make a determination on whether to issue an order to seal the records based on the evidence presented at the hearing.

(F) Service of order. After entering the order to seal records, the court must provide copies of the order to the Department, in a form and manner prescribed by the Department, to the petitioner, to the State’s Attorney or prosecutor charged with the duty of prosecuting the offense, to the arresting agency, to the chief legal officer of the unit of local government effecting the arrest, and to such other criminal justice agencies as may be ordered by the court.

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CA7 finds that a deficient immigration court notice does not strip the immigration courts of authority to preside over the resulting removal proceedings

A new case from the U.S. 7th Circuit Court of Appeals denied termination under Pereira v. Sessions, but without validating the BIA’s 2-step approach which many circuit courts had upheld. The failure to follow a claim-processing rule is not a jurisdictional flaw. One must timely object at or before the very first MC hearing, filing a Motion to Terminate for defective NTA (or really for lack of NTA) and show prejudice. Under the reasoning in Ortiz-Santiago v. Barr, you have to do it at the beginning, before agreeing to move forward with the case. CA7 left room to argue what is a prompt request, and under what circumstances, a late request should be accepted. Ortiz-Santiago v. Barr, No. 18-3251 (7th Cir. May. 20, 2019)

  • Download Mario Ortiz-Santiago v. Barr (7th Cir. May 20, 2019)(PDF)
  • Ortiz-Santiago v. Barr, Court of Appeals, 7th Circuit 2019 (Google Scholar)
  • Ortiz-Santiago v. Barr, Court of Appeals, 7th Circuit 2019 (Casetext)
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    Ortiz-Santiago, a Mexican citizen, has continuously resided in the U.S. without legal status since 1999. In 2015, he was arrested for driving without a license. He was served with a “Notice to Appear” for removal proceedings, 8 U.S.C. 1229(a), that did not include a time or date for Ortiz-Santiago’s hearing but referred to a date and time “to be set.” This omission violated 8 U.S.C. 1229(a)(1)(G)(i). Shortly thereafter, the Immigration Court sent Ortiz-Santiago a “Notice of Hearing,” setting his hearing for November 12, 2015 at 10:30 a.m. In 2006, the Seventh Circuit expressly approved this two-step procedure. During proceedings before the Immigration Judge in August 2016, Ortiz-Santiago sought cancellation of removal. The IJ found that Ortiz-Santiago failed to show the requisite hardship to his stepfather or his own good moral character. While his appeal was pending, the Supreme Court decided “Pereira,” which held that a Notice that lacked the statutorily-required time-and-date information did not trigger the stop-time rule, which dictates the end-point of the non-citizen’s qualifying U.S. residence for certain immigration benefits. The Court stated that “[a] document that fails to include such information is not a ‘notice to appear under section 1229(a).” The BIA denied Ortiz-Santiago’s motion to remand and affirmed. The Seventh Circuit denied his petition for review, rejecting an argument that the Notice was so defective that it did not establish the Immigration Court’s jurisdiction. The Notice was procedurally defective, but the omission is not “jurisdictional.”

    HOLDING: A Mexican alien was not entitled to relief from an order of removal, even though DHS did not provide him with a Notice to Appear that provided the time and date of the hearing as required by 8 U.S.C.S. § 1229(a), because this was a failure to follow a claim-processing rule, not a jurisdictional flaw, the alien did not timely object to the government’s misstep, and he was unable to show that he was prejudiced by the noncompliant form.

    “The requirement that a Notice to Appear in immigration proceedings include, within its four corners, the time, date, and place of the removal proceeding is not “jurisdictional” in nature. It is instead the agency’s version of a claim-processing rule, violations of which can be forfeited if an objection is not raised in a timely manner. The U.S. Court of Appeals for the Seventh Circuit thus holds, as have the Second, Sixth, and Ninth Circuits, that an Immigration Court’s jurisdiction is secure despite the omission in a Notice of time-and-place information.

    8 C.F.R. § 1003.14 states that jurisdiction vests when a charging document is filed with the Immigration Court; 8 C.F.R. § 1003.13 defines a charging document as one of several forms, among which is a Notice to Appear; and 8 C.F.R. § 1239.1 specifies that a Notice to Appear is the only way to begin a removal proceeding.

    8 U.S.C.S. § 1229(a) describes a Notice to Appear as written notice given to the alien specifying various things including the government’s allegations, the noncitizen’s rights and responsibilities, and the time and place at which the proceedings will be held. The relevant regulations, 8 C.F.R. §§ 1003.15 and 1003.18, provide that a Notice to Appear must contain similar information. Importantly, however, neither regulation repeats the requirement that a Notice contain the time and place of the removal proceedings. Instead, 8 C.F.R. § 1003.18(b) says only that the time, place and date of the initial hearing be provided where practicable.

    An agency has no power to rewrite the text of a statute. If Congress has defined a term, then an implementing regulation cannot re-define that term in a conflicting way. One of the most basic rules of statutory interpretation is that identical words used in different parts of the same act are intended to have the same meaning.

    Unlike a limitation on a court’s subject-matter jurisdiction, a claim-processing rule is one that seeks to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times. The quintessential example of a claim-processing rule is a filing deadline. Even a claim-processing rule that is framed in mandatory terms does not deprive a court of authority to hear a case.

    While an agency may adopt rules and processes to maintain order, it cannot define the scope of its power to hear cases.

    A failure to comply with the statute dictating the content of a Notice to Appear in an immigration case is not one of those fundamental flaws that divest a tribunal of adjudicatory authority. Instead, just as with every other claim-processing rule, failure to comply with that rule may be grounds for dismissal of the case. Such a failure may also be waived or forfeited by the opposing party.

    Courts are normally obliged to apply changes in the law that occur while they continue to have the power to adjudicate the case before them. In matters of equity, that duty may extend even beyond a final judgment. Generally speaking, the obligation to apply changes in the law extends through a party’s direct appeal. A court generally applies the law in effect at the time of its decision, and that if the law changes while the case is on appeal the appellate court applies the new rule.

    In order to file a proper appeal in a federal court of appeals, the district-court loser must lodge a notice of appeal in the district court within a specified time, and then the district clerk must serve a copy of the notice of appeal on all counsel of record and unrepresented parties and send a copy to the clerk of the court of appeals. Fed. R. App. P. 3(a), (d). The rules specify what a notice of appeal must include: the name of the appealing party or parties; the judgment or order from which the appeal is taken; and the court to which the appeal is directed. Fed. R. App. P. 3(c)(1). But the rules go on to say that appeals must not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice. Fed. R. App. P. 3(c)(4). Indeed, even the absence of a signature on a notice of appeal does not automatically require the court of appeals to dismiss the appeal. The lack of a signature, it said, is a curable lapse rather than a jurisdictional flaw.

    Relief will be available for those who make timely objections, as well as those whose timing is excusable and who can show prejudice.”

    DHS should have provided him with a statutorily compliant Notice to Appear and filed that notice with the Immigration Court. But this was a failure to follow a claim-processing rule, not a jurisdictional flaw.
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    Lorenzo Lopez v. Barr No. 15-72406 (9th Cir. 2019)
    https://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/22/15-72406.pdf

    Summary: The panel held that a Notice to Appear that is defective under Pereira cannot be cured by a subsequent Notice of Hearing, explaining that the plain language of the statute foreclosed the Attorney General’s argument and that Pereira had effectively overruled Popa.

    The panel noted that the BIA reached a conclusion contrary to the panel’s holding in Matter of Mendoza-Hernandez, 27 I. & N. Dec. 520 (BIA 2019) (en banc), where, over a vigorous dissent, a closely divided BIA held that a Notice of Hearing that contains time-and-place information perfects a deficient Notice to Appear and triggers the stop-time rule.

    However, the panel declined to defer to that conclusion because: (1) the BIA acknowledged that Pereira could be read to reach a different result, and the courts owe no deference to agency interpretations of Supreme Court opinions; (2) the BIA ignored the plain text of the statute; and (3) the BIA relied on cases that cannot be reconciled with Pereira.

    Thus, the panel concluded that, because Lorenzo never received a valid Notice to Appear, his residency continued beyond 2008 and, accordingly, he has resided in the United States for over seven years and is eligible for cancellation of removal.
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    MARIO ORTIZ-SANTIAGO, Petitioner, v. WILLIAM P. BARR, Attorney General of the United States, Respondent. No. 18-3251.

    United States Court of Appeals, Seventh Circuit. Argued April 8, 2019. Decided May 20, 2019.

    Siu P. Wong, Lisa M. Damiano, Aaron D. Nelson, OIL, for Respondent.

    Jacob S. Briskman, for Petitioner.

    Adam R. Whitesel Cassingham, for Petitioner.

    Petition for Review of a Decision of the Board of Immigration Appeals No. A206-788-936.

    Before WOOD, Chief Judge, and SCUDDER and ST. EVE, Circuit Judges.

    WOOD, Chief Judge.

    Jurisdiction, the Supreme Court has reminded us, “is a word of many, too many meanings.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90 (1998) (quoting United States v. Vanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996)). Petitioner Mario Ortiz-Santiago, who is seeking to avoid removal from this country, now asks us to wade into those murky waters. He contends that because the Notice to Appear (“Notice”) sent to him by the Department of Homeland Security (“DHS”) did not have the statutorily required time-and-date information for his removal hearing, subject-matter jurisdiction never vested in the Immigration Court. This flaw, he reasons, rendered the Notice so defective that it did not suffice to trigger the Immigration Court’s jurisdiction over his case. Because he never was properly placed in removal proceedings, he concludes, the order of removal that the Immigration Judge entered and the Board of Immigration Appeals affirmed must be vacated.

    Ortiz-Santiago is correct that the Notice was procedurally defective, but he overstates the problem. The requirement that a Notice include, within its four corners, the time, date, and place of the removal proceeding is not “jurisdictional” in nature. It is instead the agency’s version of a claim-processing rule, violations of which can be forfeited if an objection is not raised in a timely manner. We thus hold, as have the Second, Sixth, and Ninth Circuits, that an Immigration Court’s jurisdiction is secure despite the omission in a Notice of time-and-place information. See Banegas Gomez v. Barr, ___ F.3d ___, No. 15-3269, 2019 WL 1768914, at *6-8 (2d Cir. April 23, 2019); Santos-Santos v. Barr, 917 F.3d 486 (6th Cir. 2019); Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019); Hernandez-Perez v. Whitaker, 911 F.3d 305 (6th Cir. 2018). Although we take a different path from those circuits to reach this conclusion, we agree that nothing in Pereira v. Sessions, 138 S. Ct. 2105 (2018), requires a different result. See also Villa Serrano v. Barr, ___ F.3d ___, No. 18-2886, 2019 WL 2052354, at *4 (7th Cir. May 9, 2019) (noting but not deciding this issue). We therefore deny Ortiz-Santiago’s petition for review.

    I

    Ortiz-Santiago is a Mexican citizen who has continuously resided in the United States without legal status since 1999. He is now about 50 years old. In October 2015, he was arrested for driving without a license. Shortly thereafter Immigration and Customs Enforcement served him with a document entitled “Notice to Appear” for removal proceedings. See 8 U.S.C. § 1229(a). This Notice asserted that he is a removable noncitizen because he entered the United States without being admitted or paroled. The Notice did not, however, include either a time or date for Ortiz-Santiago’s hearing before the Immigration Judge. This omission violated the Immigration and Nationality Act. See 8 U.S.C. § 1229(a)(1)(G)(i) (requiring a Notice to include “[t]he time and place at which the proceedings will be held”). Cf. 8 C.F.R. § 1003.15(b), (c) (specifying the contents of a Notice with no mention of time and date). The Notice Ortiz-Santiago received said only that he should appear at the Office of the Immigration Judge in Chicago at a date and time “to be set.” Shortly thereafter, the Immigration Court sent Ortiz-Santiago a “Notice of Hearing,” setting his hearing for November 12, 2015 at 10:30 a.m. More than a decade ago, we expressly approved this two-step procedure. See Dababneh v. Gonzales, 471 F.3d 806, 809-10 (7th Cir. 2006).

    During proceedings before the Immigration Judge on August 24, 2016, Ortiz-Santiago conceded that he was subject to removal. He nevertheless sought cancellation of removal based on his having spent more than ten continuous years in the United States, his good moral character, and the purported hardship that his removal would cause to his stepfather, who is a legal permanent resident. See 8 U.S.C. § 1229b(b). After a hearing, the Immigration Judge denied cancellation, finding that Ortiz-Santiago had failed to show the requisite hardship to his stepfather or his own good moral character.

    Ortiz-Santiago appealed that decision to the Board of Immigration Appeals (“the Board”). While his appeal was pending, the Supreme Court decided Pereira, which held that a Notice that lacked the statutorily-required time-and-date information did not trigger the stop-time rule. 138 S. Ct. at 2118. (That rule dictates the end-point of the non-citizen’s qualifying residence in the United States for certain immigration benefits.) The Court stated, without qualification, that “[a] document that fails to include such information is not a `notice to appear under section 1229(a)’ and thus does not trigger the stop-time rule.” Id. Approximately two months after that decision, but before the Board issued its decision in this case, Ortiz-Santiago filed a motion to remand with the Board. He took the Court at its word: no time-and-date information, he believed, was the same as no Notice at all. See 8 C.F.R. § 1003.14 (stating that “jurisdiction vests … when a charging document [including a Notice to Appear] is filed with the Immigration Court”). In his view, all he received was a useless piece of paper that did not suffice to initiate anything. The Board denied Ortiz-Santiago’s motion to remand and, on de novo review, it affirmed the Immigration Judge’s finding that he failed to show that his stepfather would suffer sufficient hardship to warrant cancellation. This timely petition for review, in which Ortiz-Santiago emphasizes his “jurisdictional” argument, followed.

    II

    A

    As with all questions of statutory interpretation, we start with the statute’s text. In relevant part, 8 U.S.C. § 1229(a)(1)(G)(i) states that:

    In removal proceedings under section 1229a of this title, written notice (in this section referred to as a “notice to appear”) shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any) specifying the following: … The time and place at which the proceedings will be held.

    Neither that provision, nor any other within the Immigration and Nationality Act, says anything about when the Immigration Court is formally authorized to proceed with the case. The agency thus issued implementing regulations, which do the following: 8 C.F.R. § 1003.14 states that “jurisdiction vests” when a charging document is filed with the Immigration Court; 8 C.F.R. § 1003.13 defines a charging document as one of several forms, among which is a Notice; and 8 C.F.R. § 1239.1 specifies that a Notice is the only way to begin a removal proceeding.

    But saying that “jurisdiction” vests with the Immigration Court upon the filing of a Notice to Appear is unhelpful without defining what that Notice must include in order to have that effect. Both the statute and the regulations attempt to address this question. As described above, 8 U.S.C. § 1229(a) describes a Notice as “written notice … given … to the alien … specifying” various things including the government’s allegations, the noncitizen’s rights and responsibilities, and the “time and place at which the proceedings will be held.” The relevant regulations, 8 C.F.R. §§ 1003.15 and 1003.18, provide that a Notice must contain similar information. Importantly, however, neither regulation repeats the requirement that a Notice contain the “time and place” of the removal proceedings. Instead, 8 C.F.R. § 1003.18(b) says only that the “time, place and date” of the initial hearing be provided “where practicable.” At least in the last few years, DHS apparently never found it “practicable” to send Notices that contained time and date information. See Pereira, 138 S. Ct. at 2111 (noting that “almost 100 percent” of Notices from the previous three years omitted time and date information). Instead, DHS sent Notices with no date or time for the initial hearing and used a place-filler indicating that this information was “to be set.” At some point after the Notice was sent—sometimes the same day, sometimes months later—the Immigration Court would send the noncitizen a “Notice of Hearing” detailing when and where she was required to appear.

    Until recently, few if any courts were troubled by this inconsistency between the statutory and regulatory text. We certainly were not. To the contrary, we upheld this notification procedure against multiple attacks in the years between 1997 (the year that both the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) and this implementing regulation became effective) and now. In Dababneh, we held that “the fact that the government fulfilled its requirements under INA § 239(a) in two documents did not strip the [Immigration Judge] of jurisdiction.” 471 F.3d at 810. We also held that the two-document procedure was sufficient to trigger the stop-time rule that governs the end of the non-citizen’s “period of continuous physical presence.” Id., citing 8 U.S.C. § 1229b(d)(1) (the stop-time rule). And in Yi Di Wang v. Holder, 759 F.3d 670 (7th Cir. 2014), we held that the Board permissibly interpreted section 1229b(d)(1) to allow the stop-time rule to be triggered by a Notice without time-and-place information, without regard to whether a separate Notice of Hearing was later sent. Id. at 674-75. We were not an outlier in reaching this conclusion: every circuit court but one to address the issue upheld the Board’s interpretation. See Pereira, 138 S. Ct. at 2113 n.4 (collecting cases).

    Much of that changed with Pereira. The question presented to the Court in that case was the same as the one we faced in Yi Di Wang: whether DHS’s failure to include time-and-date information in a document labeled “Notice to Appear” would still allow that document to trigger the stop-time rule. Pereira, 138 S. Ct. at 2110. The Court found the answer to that question “as obvious as it seems: No.” Id. It determined that “[t]he plain text, the statutory context, and common sense all [led] inescapably and unambiguously to” its conclusion. Id.

    The relevant statutory provisions, the Court said, were unambiguous and thus not amenable to agency interpretation or an appropriate subject for agency deference. The stop-time rule is explicitly triggered by the service “of a notice to appear under section 1229(a).” 8 U.S.C. § 1229b(d)(1). Section 1229(a) then states that a “notice to appear” is “a `written notice … specifying,’ as relevant here, `[t]he time and place at which the [removal] proceedings will be held.'” Pereira, 138 S. Ct. at 2114 (quoting 8 U.S.C. § 1229(a)(1)(G)(i)). Combined, the “plain text” thus required that in order to trigger the stop-time rule “the Government must serve a notice to appear that, at the very least, `specif[ies]’ the `time and place’ of the removal proceedings.” Id.

    The surrounding statutory subsections bolstered the Court’s conclusion. Section 1229(a)(2) enables the government to change the time and place of the noncitizen’s hearing. But the ability to change or postpone the hearing presupposes that the Notice had to specify a time and place in the first instance. Pereira, 138 S. Ct. at 2114. A contrary interpretation, the Court feared, would allow the government to subvert section 1229(b)(1)’s protection of the noncitizen’s ability to secure counsel. That provision dictates that no hearing may occur within ten days of the Notice’s service, so that the noncitizen has time to secure counsel. But if the government could send a Notice with no time or date for the hearing without consequence, “the Government could serve a document labeled `notice to appear’ without listing the time and location of the hearing and then, years down the line, provide that information a day before the removal hearing when it becomes available.” Pereira, 138 S. Ct. at 2114-15. This would gut section 1229(b)(1)’s protections. The Court also appealed to common sense in support of its reading of the statute. If the words “notice to appear” mean anything, the Court reasoned, they must mean providing enough “notice” of the information to allow a noncitizen “to appear” for a hearing, i.e. the time and place of that hearing. Id.

    We see two key features in Pereira’s analysis. First, Pereira focused on one issue at the intersection of two statutory provisions: the stop-time rule and section 1229(a)’s requirements for a Notice. See id. at 2110. As the Court recognized, this is a narrow question. It is thus not surprising that the opinion discussed only the relevance of the omission of time-and-place information for purposes of the duration of residence in the United States. See id. at 2113.

    Nonetheless, Pereira is not a one-way, one-day train ticket. The Court stated more generally that section 1229(a) speaks “in definitional terms” when referring to time-and-place information. Id. at 2116. It worried that not including time-and-place information would “deprive [the notice to appear] of its essential character.” Id. at 2116-17. And it thought that “the statute makes clear that Congress fully intended to attach substantive significance to the requirement that noncitizens be given notice of at least the time and place of their removal proceedings.” Id. at 2118. Ultimately, it announced that “when the term `notice to appear’ is used elsewhere in the statutory section, including as the trigger for the stop-time rule, it carries with it the substantive time-and-place criteria required by § 1229(a).” Id. at 2116 (emphasis added). What the Court did not resolve, however, was what should happen if the time and place are missing. It is to that question that we now turn.

    B

    We start with the uncontroversial proposition that an agency has no power to rewrite the text of a statute. See Chevron v. Natural Res. Defense Council, Inc., 467 U.S. 837, 842-43 (1984). If Congress has defined a term, then an implementing regulation cannot re-define that term in a conflicting way. We thus conclude that the Notice Ortiz-Santiago received was defective. Congress defined a “Notice to Appear” as a document containing a specific list of required information, including “[t]he time and place at which the proceedings will be held,” 8 U.S.C. § 1229(a)(1)(G)(i), and his Notice omitted that information. As the Supreme Court found, Congress’s language was “definitional,” and time-and-place information was “unquestionably” part of a Notice’s “essential character.” Pereira, 138 S. Ct. at 2116-17.

    The government’s efforts to salvage the Notice are unpersuasive. It wants us to find that 8 C.F.R. § 1239.1, entitled “Notice to Appear,” is not talking about the same “Notice to Appear” that is defined in the statute. See also 8 C.F.R. §§ 1003.15, 1003.18 (also referring to a “Notice to Appear”). That is absurd. The regulation itself refers to 8 U.S.C. § 1229a, which is also the reference point for 8 U.S.C. § 1229(a)(1)(G)(i), where we find the time-and-place requirement. If that were not enough, the government’s position also offends one of the most basic rules of statutory interpretation: “identical words used in different parts of the same act are intended to have the same meaning.” Sorenson v. Sec’y of Treasury, 475 U.S. 851, 860 (1986).

    The government also urges that it achieves substantial compliance with the statute when it uses the two-step process, first sending an incomplete Notice, and then filling in the blanks for time and place in a later Notice of Hearing. The Board adopted that position in Matter of Bermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018), in part by relying on our holding in Dababneh. Id. at 445-47. We are not so sure. It appears to us that Bermudez-Cota brushed too quickly over the Supreme Court’s rationale in Pereira and tracked the dissenting opinion rather than that of the majority.

    It is also telling that Congress itself appears to have rejected the two-step approach when it passed IIRIRA. Before that time, deportation proceedings began with a document called an “Order to Show Cause.” See 8 U.S.C. § 1252b (1995). The Order to Show Cause had to include largely the same information as the later Notice to Appear, except that it did not need to specify the time and place of the hearing. See id. at § 1252b(a)(1). Instead, just as the Pereira dissenter and the Bermudez-Cota decision would have it, the statute allowed the time and place to be communicated to a non-citizen “in the order to show cause or otherwise.” Id. (emphasis added). When Congress enacted IIRIRA, it combined the separate provision in section 1252b(1)(2)(A) with the other substantive requirements of the Order to Show Cause, and it came up with the Notice to Appear. The “or otherwise” language disappeared. The Board took no note of this statutory evolution in Bermudez-Cota, nor did it explain how its decision complied with the present statutory language. These omissions are troubling enough to cause us to refrain from resolving this case with a simple citation to Bermudez-Cota.

    III

    A

    If we had found that the two-step procedure that the Board followed was compatible with the statute, we could end our opinion here. Since we do not read the law that way, however, we must move on to Ortiz-Santiago’s contention that the failure to comply was an error of jurisdictional significance.

    The parties have assumed that the lack of time-and-place information affects the Immigration Court’s (and by extension our) subject-matter jurisdiction. That assumption may have been a tactical one by both parties. It allows Ortiz-Santiago to take the position that his complaint about the government’s misstep is not untimely, and it allows the government to raise the dire possibility that adopting Ortiz-Santiago’s position would cause thousands, if not millions, of removal proceedings to be void ab initio. See, e.g., Hernandez-Perez, 911 F.3d at 314 (contemplating this latter possibility). We are not bound by their framing of the issue, however, and so we regard that characterization as a question to be resolved.

    As we acknowledged at the outset, not every error is jurisdictional. In recent years the Supreme Court has “pressed a stricter distinction between truly jurisdictional rules, which govern `a court’s adjudicatory authority,’ and nonjurisdictional `claim-processing rules,’ which do not.” Gonzalez v. Thaler, 565 U.S. 134, 141 (2012) (citing Kontrick v. Ryan, 540 U.S. 443, 454-55 (2004)). (Granted, that line of authority arose in the context of the courts rather than agencies, but we find the principle a useful one here as well.) Gonzalez limited jurisdictional rules to those that “clearly state[] that a threshold limitation on a statute’s scope shall count as jurisdictional.” 565 U.S. at 141 (quoting Arbaugh v. Y&H Corp., 546 U.S. 500, 515 (2006)).

    Unlike a limitation on a court’s subject-matter jurisdiction, a claim-processing rule is one that “seek[s] to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011). The “quintessential” example of a claim-processing rule is a filing deadline. United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1632 (2015). Even a claim-processing rule that is “framed in mandatory terms” does “not deprive a court of authority to hear a case.” Id. “[I]ndeed, that is so however emphatically expressed those terms may be.” Id. (quoting Henderson, 562 U.S. at 435) (alterations and internal quotation marks omitted).

    Applying that analysis to the situation before us, we see a statute (8 U.S.C. § 1229(a)(1)(G)(i)) that says nothing about the agency’s jurisdiction. It simply sets out the information that must be included in a Notice to Appear. That does not mean that the statute is unimportant or can be ignored. It simply means that an aggrieved party can forfeit any objection she has by failing to raise it at the right time. See Kontrick, 540 U.S. at 456-58.

    The fact that the Executive Office for Immigration Review of the Department of Justice purported to describe when “jurisdiction” vests in a case before an immigration court is neither here nor there. See 8 C.F.R. § 1003.14(a). While an agency may adopt rules and processes to maintain order, it cannot define the scope of its power to hear cases. What the Executive Office was doing was establishing exactly what it takes properly to commence a case before it. That decision is not one of jurisdictional significance in the same sense that complete diversity or the existence of a federal question is for a district court. Nonetheless, when the agency creates the rules for its adjudicatory proceedings, it must act within the limits that Congress gave it.

    A failure to comply with the statute dictating the content of a Notice to Appear is not one of those fundamental flaws that divests a tribunal of adjudicatory authority. Instead, just as with every other claim-processing rule, failure to comply with that rule may be grounds for dismissal of the case. See generally Carlisle v. United States, 517 U.S. 416 (1996) (upholding the denial of a motion for judgment of acquittal that was filed one day late upon the government’s objection). But such a failure may also be waived or forfeited by the opposing party. See Eberhart v. United States, 546 U.S. 12, 19 (2005) (finding forfeiture because the government did not raise a timeliness objection before the district court).

    As our sister circuits and the Board have noted, it is telling that the Supreme Court made no mention of jurisdiction in Pereira. See Karingithi, 913 F.3d at 1161; Hernandez-Perez, 911 F.3d at 314; Bermudez-Cota, 27 I. & N. Dec. at 443-44. That makes sense: there is no reason why the Court needed to do so. And had it found a lack of jurisdiction, it would not have remanded for further proceedings.

    B

    With that framework established, we turn back to Ortiz-Santiago. Ortiz-Santiago did not raise DHS’s failure to include the time and date of his removal hearing until his appeal of the Immigration Judge’s decision was already pending with the Board. In the usual case, we would have no trouble saying that his delay resulted in the forfeiture of this point. Indeed, Ortiz-Santiago complained about the defect in the Notice only after Pereira was decided and he saw the possibility of wiping out his entire immigration proceeding. The question is thus whether Pereira was a sufficient intervening cause to excuse an otherwise clear case of forfeiture, and if not, whether Ortiz-Santiago’s forfeiture should be forgiven for some other reason.

    Generally, a party wishing to object to a violation of a claim-processing rule must make a timely objection. See Eberhart, 546 U.S. at 19 (“[W]here the Government failed to raise a defense of untimeliness until after the District Court had reached the merits, it forfeited that defense.”); Grigsby v. Cotton, 456 F.3d 727, 731 (7th Cir. 2006) (finding forfeiture where the government failed to object to a habeas petitioner’s timeliness or procedural default in the district court).

    Here, Ortiz-Santiago’s objection hinged on Pereira’s interpretation of section 1229(a). Before Pereira, such an objection would have been regarded in most—though importantly not all—courts as meritless. We had rejected the exact argument Ortiz-Santiago sought to make about section 1229(a)’s timeand-place information requirement and its effect on the Immigration Court’s jurisdiction. See Dababneh, 471 F.3d at 808-10. Most of the other courts of appeals were in accord.

    Pereira thus represented a genuine change in circumstances. Courts are normally obliged to apply changes in the law that occur while they continue to have power to adjudicate the case before them. In matters of equity, that duty may extend even beyond a final judgment. See Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421 (1865). Generally speaking, the obligation to apply changes in the law extends through a party’s direct appeal. See Henderson, 568 U.S. at 276 (citing United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103 (1801)); Richardson v. United States, 379 F.3d 485, 487 (7th Cir. 2004) (“It is well-established that a court generally applies the law in effect at the time of its decision, and that if the law changes while the case is on appeal the appellate court applies the new rule.”).

    But that does not mean that a party may always stand silent if a potential problem exists. In Ortiz-Santiago’s case, there were signs that a meritorious argument could be raised. He could have noted both the clear statutory text and the fact that the Third Circuit disagreed with Dababneh’s and Yi Di Wang’s treatment of Notices in the stop-time context. See Orozco-Velasquez v. Attorney General[,] United States, 817 F.3d 78, 81-83 (3d Cir. 2016). Orozco-Velasquez, importantly, was decided several months before the Immigration Judge issued a merits decision in Ortiz-Santiago’s case.

    We see no reason on this record to relieve Ortiz-Santiago of this forfeiture. Cf. Freytag v. Comm’r of Internal Revenue, 501 U.S. 868, 879 (1991). This is not a case in which the Notice of Hearing never reached him, or it came so quickly that he had trouble preparing for the hearing, or any other discernible prejudice occurred. And if we are considering the equities, we must add to the scales the severity of the consequences and the impact on the government of insisting on compliance at this late date. (We presume that the government even now could issue a compliant Notice to Appear and proceed with a new case against Ortiz-Santiago; but that is cold comfort given the resources that already have been invested in this matter.) If Ortiz-Santiago had raised a prompt objection to the Notice, the Immigration Judge could and should have quashed it for noncompliance with the statute. A new, compliant Notice could have issued, and the case could have proceeded. The fact that the agency’s regulations require only that the Department of Homeland Security provide time-and-place information “where practicable” does not, as we have said, dilute the statutory requirements. See 8 C.F.R. § 1003.18(b).

    The courts of appeals operate under a similar system. In order to file a proper appeal in a federal court of appeals, the district-court loser must lodge a notice of appeal in the district court within a specified time, and then the district clerk must serve a copy of the notice of appeal on all counsel of record and unrepresented parties and send a copy to the clerk of the court of appeals. FED. R. APP. P. 3(a), (d). The rules specify what a notice of appeal must include: the name of the appealing party or parties; the judgment or order from which the appeal is taken; and the court to which the appeal is directed. Id., Rule 3(c)(1). But—and here is the point that is pertinent to the present case—the rules go on to say that appeals must not be dismissed “for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice.” Id., Rule 3(c)(4). Indeed, the Supreme Court has held that even the absence of a signature on a notice of appeal does not automatically require the court of appeals to dismiss the appeal. Becker v. Montgomery, 532 U.S. 757, 760 (2001). The lack of a signature, it said, is a curable lapse rather than a jurisdictional flaw.

    We see no reason not to apply the same approach here. Relief will be available for those who make timely objections, as well as those whose timing is excusable and who can show prejudice. See, e.g., Pereira, 138 S. Ct. at 2112 (explaining that Pereira never received his Notice of Hearing despite providing a change of address to DHS). And we urge the Department of Homeland Security to be more scrupulous in its statutory compliance: it is much easier to do things right the first time than to do them over.

    IV

    Anticipating that we might uphold the Notice to Appear, Ortiz-Santiago also asks us to remand his case to the Board for reconsideration of his character and his showing that his legal-permanent-resident stepfather will experience “exceptional and extremely unusual” hardship if Ortiz-Santiago is removed. But on this point Congress has imposed a jurisdictional bar. See 8 U.S.C. § 1252(a)(2)(B). Ortiz-Santiago’s arguments for relief are attacks on the merits of the Board’s reasoning; he believes that the Board did not fully appreciate the extent of harm to his stepfather that the loss of his remittances will cause. This attack on the merits raises no “constitutional claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D), and so we have no jurisdiction to consider it. See Stepanovic v. Filip, 554 F.3d 673, 677-78 (7th Cir. 2009) (explaining that 8 U.S.C. § 1252(a)(2)(D) allows only review of “pure” questions of law).

    ***

    In order to proceed in its attempt to remove Ortiz-Santiago from the United States, DHS should have provided him with a statutorily compliant Notice to Appear and filed that notice with the Immigration Court. It failed to do so when it omitted the time and date of Ortiz-Santiago’s removal hearing from that Notice. But this was a failure to follow a claim-processing rule, not a jurisdictional flaw. Because Ortiz-Santiago did not timely object to the government’s misstep and cannot show that he was prejudiced by the noncompliant form, we DENY his petition for review.

    Posted in CA7, Defective Notice to Appear, Jurisdiction, Motion to Terminate, U.S. 7th Circuit Court of Appeals | Leave a comment

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

    MIRANDA-CORDIERO, 27 I&N Dec. 551 (BIA 2019) ID 3953 (PDF)

    Pursuant to section 240(b)(5)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(B) (2012), neither rescission of an in absentia order of removal nor termination of the proceedings is required where an alien who was served with a notice to appear that did not specify the time and place of the initial removal hearing failed to provide an address where a notice of hearing could be sent. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.


    PENA-MEJIA, 27 I&N Dec. 546 (BIA 2019) ID 3952 (PDF)

    Neither rescission of an in absentia order of removal nor termination of the proceedings is required where an alien did not appear at a scheduled hearing after being served with a notice to appear that did not specify the time and place of the initial removal hearing, so long as a subsequent notice of hearing specifying that information was properly sent to the alien. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.


    MENDOZA-HERNANDEZ and CAPULA-CORTES, 27 I&N Dec. 520 (BIA 2019) ID 3951 (PDF)

    A deficient notice to appear that does not include the time and place of an alien’s initial removal hearing is perfected by the subsequent service of a notice of hearing specifying that missing information, which satisfies the notice requirements of section 239(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a) (2012), and triggers the “stop-time” rule of section 240A(d)(1)(A) of the Act, 8 U.S.C. § 1229b(d)(1)(A) (2012). Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished; Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), followed.


    M-S-, 27 I&N Dec. 509 (A.G. 2019) ID 3950 (PDF)

    (1) Matter of X-K-, 23 I&N Dec. 731 (BIA 2005), was wrongly decided and is overruled.

    (2) An alien who is transferred from expedited removal proceedings to full removal proceedings after establishing a credible fear of persecution or torture is ineligible for release on bond. Such an alien must be detained until his removal proceedings conclude, unless he is granted parole.


    A. VASQUEZ, 27 I&N Dec. 503 (BIA 2019) ID 3949 (PDF)

    Under the plain language of section 101(a)(43)(H) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(H) (2012), kidnapping in violation of 18 U.S.C. § 1201(a) (2012) is not an aggravated felony.

    A.J. VALDEZ and Z. VALDEZ, 27 I&N Dec. 496 (BIA 2018) ID 3948 (PDF)

    (1) An alien makes a willful misrepresentation under section 212(a)(6)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2012), when he or she knows of or authorizes false statements in an application filed on the alien’s behalf.

    (2) An alien’s signature on an immigration application establishes a strong presumption that he or she knows of and has assented to the contents of the application, but the alien can rebut the presumption by establishing fraud, deceit, or other wrongful acts by another person.


    CASTILLO-PEREZ, 27 I&N Dec. 495 (A.G. 2018) ID 3947 (PDF)

    The Acting Attorney General referred the decision of the Board of Immigration Appeals to himself for review of issues relating to:

    (1) In connection with an application for cancellation of removal under 8 U.S.C. § 1229b(b), what is the appropriate legal standard for determining when an individual lacks “good moral character” under 8 U.S.C. § 1101(f)?

    (2) What impact should multiple convictions for driving while intoxicated or driving under the influence have in determining when an individual lacks “good moral character” under 8 U.S.C. § 1101(f)?

    (3) What impact should multiple such convictions have in determining whether to grant discretionary relief under 8 U.S.C. § 1229b(b).

    The Acting Attorney General ordered that the case be stayed during the pendency of his review.


    L-E-A-, 27 I&N Dec. 494 (A.G. 2018) ID 3946 (PDF)

    The Acting Attorney General referred the decision of the Board of Immigration Appeals to himself for review of issues relating to whether, and under what circumstances, an alien may establish persecution on account of membership in a “particular social group” under 8 U.S.C. § 1101(a)(42)(A) based on the alien’s membership in a family unit, ordering that the case be stayed during the pendency of his review.


    SONG, 27 I&N Dec. 488 (BIA 2018) ID 3945 (PDF)

    An applicant for adjustment of status who was admitted on a K-1 visa, fulfilled the terms of the visa by marrying the petitioner, and was later divorced must submit an affidavit of support from the petitioner to establish that he or she is not inadmissible as a public charge under section 212(a)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(4) (2012).


    J-R-G-P-, 27 I&N Dec. 482 (BIA 2018) ID 3944 (PDF)

    Where the evidence regarding an application for protection under 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. GAOR Supp. 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), plausibly establishes that abusive or squalid conditions in pretrial detention facilities, prisons, or mental health institutions in the country of removal are the result of neglect, a lack of resources, or insufficient training and education, rather than a specific intent to cause severe pain and suffering, an Immigration Judge’s finding that the applicant did not establish a sufficient likelihood that he or she will experience “torture” in these settings is not clearly erroneous.


    NEGUSIE, 27 I&N Dec. 481 (A.G. 2018)

    ID 3943 (PDF)

    The Attorney General referred the decision of the Board of Immigration Appeals to himself for review of issues relating to whether coercion and duress are relevant to the application of the Immigration and Nationality Act’s persecutor bar. See 8 U.S.C. §§ 1101(a)(42), 1158(b)(2)(A)(i), 1231(b)(3)(B)(i)(2012).


    M-A-C-O-, 27 I&N Dec. 477 (BIA 2018) ID 3942 (PDF)

    An Immigration Judge has initial jurisdiction over an asylum application filed by a respondent who was previously determined to be an unaccompanied alien child but who turned 18 before filing the application.


    M-S-, 27 I&N Dec. 476 (A.G. 2018)

    ID 3941 (PDF)

    The Attorney General referred the decision of the Board of Immigration Appeals to himself for review of issues relating to the authority to hold bond hearings for certain aliens screened for expedited removal proceedings, ordering that the case be stayed during the pendency of his review.


    M-G-G-, 27 I&N Dec. 475 (A.G. 2018) ID 3940 (PDF)

    The Attorney General referred the decision of the Board of Immigration Appeals to himself for review. As the respondent had been removed and was no longer in the United States, the Attorney General decided not to review the Board’s determination that the respondent was eligible to be released on bond. The Attorney General remanded the case to the Board for any administrative action the Board deems necessary.


    VELASQUEZ-RIOS, 27 I&N Dec. 470 (BIA 2018)

    ID 3939 (PDF)

    The amendment to section 18.5 of the California Penal Code, which retroactively lowered the maximum possible sentence that could have been imposed for an alien’s State offense from 365 days to 364 days, does not affect the applicability of section 237(a)(2)(A)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i)(II) (2012), to a past conviction for a crime involving moral turpitude “for which a sentence of one year or longer may be imposed.”


    M-G-G-, 27 I&N Dec. 469 (A.G. 2018) ID 3938 (PDF)

    The Attorney General referred the decision of the Board of Immigration Appeals to himself for review of issues relating to the authority to hold bond hearings for certain aliens screened for expedited removal proceedings, ordering that the case be stayed during the pendency of his review.


    S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018) ID 3937 (PDF)

    (1) Consistent with Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), immigration judges have no inherent authority to terminate or dismiss removal proceedings.

    (2) Immigration judges may dismiss or terminate removal proceedings only under the circumstances expressly identified in the regulations, see 8 C.F.R. § 1239.2(c), (f), or where the Department of Homeland Security fails to sustain the charges of removability against a respondent, see 8 C.F.R. § 1240.12(c).

    (3) An immigration judge’s general authority to “take any other action consistent with applicable law and regulations as may be appropriate,” 8 C.F.R. § 1240.1(a)(1)(iv), does not provide any additional authority to terminate or dismiss removal proceedings beyond those authorities expressly set out in the relevant regulations.

    (4) To avoid confusion, immigration judges and the Board should recognize and maintain the distinction between a dismissal under 8 C.F.R. § 1239.2(c) and a termination under 8 C.F.R. § 1239.2(f).


    VALENZUELA GALLARDO, 27 I&N Dec. 449 (BIA 2018) ID 3936 (PDF)

    (1) An “offense relating to obstruction of justice” under section 101(a)(43)(S) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(S) (2012), encompasses offenses covered by chapter 73 of the Federal criminal code, 18 U.S.C. §§ 1501–1521 (2012), or any other Federal or State offense that involves (1) an affirmative and intentional attempt (2) that is motivated by a specific intent (3) to interfere either in an investigation or proceeding that is ongoing, pending, or reasonably foreseeable by the defendant, or in another’s punishment resulting from a completed proceeding. Matter of Valenzuela Gallardo, 25 I&N Dec. 838 (BIA 2012), clarified.

    (2) A conviction for accessory to a felony under section 32 of the California Penal Code that results in a term of imprisonment of at least 1 year is a conviction for an aggravated felony offense relating to obstruction of justice under section 101(a)(43)(S) of the Act.

    BERMUDEZ-COTA, 27 I&N Dec. 441 (BIA 2018) ID 3935 (PDF)

    A notice to appear that does not specify the time and place of an alien’s initial removal hearing vests an Immigration Judge with jurisdiction over the removal proceedings and meets the requirements of section 239(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a) (2012), so long as a notice of hearing specifying this information is later sent to the alien. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.


    J. M. ACOSTA, 27 I&N Dec. 420 (BIA 2018) ID 3934 (PDF)

    (1) A conviction does not attain a sufficient degree of finality for immigration purposes until the right to direct appellate review on the merits of the conviction has been exhausted or waived.

    (2) Once the Department of Homeland Security has established that a respondent has a criminal conviction at the trial level and that the time for filing a direct appeal has passed, a presumption arises that the conviction is final for immigration purposes, which the respondent can rebut with evidence that an appeal has been filed within the prescribed deadline, including any extensions or permissive filings granted by the appellate court, and that the appeal relates to the issue of guilt or innocence or concerns a substantive defect in the criminal proceedings.

    (3) Appeals, including direct appeals, and collateral attacks that do not relate to the underlying merits of a conviction will not be given effect to eliminate the finality of the conviction.

    L-A-B-R- et al., 27 I&N Dec. 405 (A.G. 2018) ID 3933 (PDF)

    (1) An immigration judge may grant a motion for a continuance of removal proceedings only “for good cause shown.” 8 C.F.R. § 1003.29.

    (2) The good-cause standard is a substantive requirement that limits the discretion of immigration judges and prohibits them from granting continuances for any reason or no reason at all.

    (3) The good-cause standard requires consideration and balancing of multiple relevant factors when a respondent alien requests a continuance to pursue collateral relief from another authority—for example, a visa from the Department of Homeland Security. See Matter of Hashmi, 24 I&N Dec. 785, 790 (BIA 2009).

    (4) When a respondent requests a continuance to pursue collateral relief, the immigration judge must consider primarily the likelihood that the collateral relief will be granted and will materially affect the outcome of the removal proceedings.

    (5) The immigration judge should also consider relevant secondary factors, which may include the respondent’s diligence in seeking collateral relief, DHS’s position on the motion for continuance, concerns of administrative efficiency, the length of the continuance requested, the number of hearings held and continuances granted previously, and the timing of the continuance motion.


    MEDINA-JIMENEZ, 27 I&N Dec. 399 (BIA 2018)

    ID 3932 (PDF)

    The categorical approach does not govern whether violating a protection order under 237(a)(2)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(ii) (2012), renders an alien ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C) (2012); instead, Immigration Judges need only decide whether the alien has been convicted within the meaning of the Act and whether that conviction is for violating a protection order under section 237(a)(2)(E)(ii). Matter of Obshatko, 27 I&N Dec. 173 (BIA 2017), followed.


    ORTEGA-LOPEZ, 27 I&N Dec. 382 (BIA 2018)

    ID 3931 (PDF)

    (1) The offense of sponsoring or exhibiting an animal in an animal fighting venture in violation of 7 U.S.C. § 2156(a)(1) (2006) is categorically a crime involving moral turpitude. Matter of Ortega-Lopez, 26 I&N Dec. 99 (BIA 2013), reaffirmed.

    (2) 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), for having “been convicted of an offense under” section 237(a)(2)(A)(i) of the Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2012), irrespective of both the general “admission” requirement in section 237(a) and the temporal (within 5 years of admission) requirement in section 237(a)(2)(A)(i)(I). Matter of Cortez, 25 I&N Dec. 301 (BIA 2010), reaffirmed.


    NEGUSIE, 27 I&N Dec. 347 (BIA 2018) ID 3930 (PDF)

    (1) An applicant who is subject to being barred from establishing eligibility for asylum or withholding of removal based on the persecution of others may claim a duress defense, which is limited in nature.

    (2) To meet the minimum threshold requirements of the duress defense to the persecutor bar, an applicant must establish by a preponderance of the evidence that (1) he acted under an imminent threat of death or serious bodily injury to himself or others; (2) he reasonably believed that the threatened harm would be carried out unless he acted or refrained from acting; (3) he had no reasonable opportunity to escape or otherwise frustrate the threat; (4) he did not place himself in a situation in which he knew or reasonably should have known that he would likely be forced to act or refrain from acting; and (5) he knew or reasonably should have known that the harm he inflicted was not greater than the threatened harm to himself or others.

    A-B-, 27 I&N Dec. 316 (A.G. 2018) ID 3929 (PDF)

    (1)Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014) is overruled. That decision was wrongly decided and should not have been issued as a precedential decision.

    (2)An applicant seeking to establish persecution on account of membership in a “particular social group” must demonstrate: (1) membership in a group, which is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct within the society in question; and (2) that membership in the group is a central reason for her persecution. When the alleged persecutor is someone unaffiliated with the government, the applicant must also show that her home government is unwilling or unable to protect her.

    (3)An asylum applicant has the burden of showing her eligibility for asylum. The applicant must present facts that establish each element of the standard, and the asylum officer, immigration judge, or the Board has the duty to determine whether those facts satisfy all of those elements.

    (4)If an asylum application is fatally flawed in one respect, an immigration judge or the Board need not examine the remaining elements of the asylum claim.

    (5)The mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.

    (6)To be cognizable, a particular social group must exist independently of the harm asserted in an application for asylum.

    (7)An applicant seeking to establish persecution based on violent conduct of a private actor must show more than the government’s difficulty controlling private behavior. The applicant must show that the government condoned the private actions or demonstrated an inability to protect the victims.

    (8)An applicant seeking asylum based on membership in a particular social group must clearly indicate on the record the exact delineation of any proposed particular social group.

    (9)The Board, immigration judges, and all asylum officers must consider, consistent with the regulations, whether internal relocation in the alien’s home country presents a reasonable alternative before granting asylum.


    A-C-M-, 27 I&N Dec. 303 (BIA 2018) ID 3928 (PDF)

    (1) An alien provides “material support” to a terrorist organization if the act has a logical and reasonably foreseeable tendency to promote, sustain, or maintain the organization, even if only to a de minimis degree.

    (2) The respondent afforded material support to the guerillas in El Salvador in 1990 because the forced labor she provided in the form of cooking, cleaning, and washing their clothes aided them in continuing their mission of armed and violent opposition to the Salvadoran Government.


    DING, 27 I&N Dec. 295 (BIA 2018) ID 3927 (PDF)

    (1) The term “prostitution” in section 101(a)(43)(K)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(K)(i) (2012), which provides that an offense relating to the owning, controlling, managing, or supervising of a prostitution business is an aggravated felony, is not limited to offenses involving sexual intercourse but is defined as engaging in, or agreeing or offering to engage in, sexual conduct for anything of value.

    (2) The offense of keeping a place of prostitution in violation of section 944.34(1) of the Wisconsin Statutes is categorically an aggravated felony under section 101(a)(43)(K)(i) of the Act.


    CASTRO-TUM, 27 I&N Dec. 271 (A.G. 2018) ID 3926 (PDF)

    (1) Immigration judges and the Board do not have the general authority to suspend indefinitely immigration proceedings by administrative closure. To the extent the Board’s decisions in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), are inconsistent with this conclusion, those decisions are overruled.

    (2) Immigration judges and the Board may only administratively close a case where a previous regulation or a previous judicially approved settlement expressly authorizes such an action.

    (3) Neither 8 C.F.R. § 1003.10(b) nor 8 C.F.R. § 1003.1(d)(1)(ii) confers the authority to grant administrative closure. Grants of general authority to take measures “appropriate and necessary for the disposition of . . . cases” would not ordinarily include the authority to suspend cases indefinitely. Additionally, 8 C.F.R. § 1240.1(a)(1), which authorizes immigration judges to take actions that “may be appropriate” in removal proceedings, and 8 C.F.R. § 1240.1(c), which empowers immigration judges to “otherwise regulate the course of the hearing,” do not entail an authority to grant indefinite suspensions. Finally, regulations empowering the Chief Immigration Judge and the Chairman of the Board to manage dockets—8 C.F.R. § 1003.9(b)(1) and 8 C.F.R. § 1003.1(a)(2)(i)(A)—grant no express authority to administratively close cases, and cannot reasonably be interpreted to implicitly delegate such authority.

    (4) Under the Immigration and Nationality Act, the Department of Homeland Security has the exclusive authority to decide whether and when to initiate proceedings. Once the Department of Homeland Security initiates proceedings, immigration judges and the Board must proceed “expeditious[ly]” to resolve the case. 8 C.F.R. § 1003.12.

    (5) For cases that truly warrant a brief pause, the regulations expressly provide for continuances. 8 C.F.R. § 1003.29.

    (6) The Immigration and Nationality Act unambiguously states that, with respect to in absentia proceedings, so long as the Department of Homeland Security adequately alleges that it provided legally sufficient written notice to an alien, the alien “shall be ordered removed in absentia if [the Department of Homeland Security] establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable.” INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A). The Immigration and Nationality Act thus imposes an obligation to proceed expeditiously to determine whether the requisite evidence supports the removal charge.

    (7) Where a case has been administratively closed without the requisite authority, the immigration judge or the Board, as appropriate, shall recalendar the case on the motion of either party.


    L-M-P-, 27 I&N Dec. 265 (BIA 2018) ID 3925 (PDF)

    (1) The Department of Homeland Security has the authority to file a motion to reconsider in Immigration Court.

    (2) An applicant in withholding of removal only proceedings who is subject to a reinstated order of removal pursuant to section 241(a)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1231(a)(5) (2012), is ineligible for asylum.


    SANCHEZ-LOPEZ, 27 I&N Dec. 256 (BIA 2018) ID 3924 (PDF)

    The offense of stalking in violation of section 646.9 of the California Penal Code is not “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) (2012). Matter of Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012), overruled.


    MARQUEZ CONDE, 27 I&N Dec. 251 (BIA 2018) ID 3923 (PDF)

    The Board of Immigration Appeals’ holding in Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), rev’d on other grounds, Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006), regarding the validity of vacated convictions for immigration purposes, is reaffirmed, and the decision is modified to give it nationwide application. Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002), not followed.


    A-B-, 27 I&N Dec. 247 (A.G. 2018) ID 3922 (PDF)

    The Attorney General denied the request of the Department of Homeland Security that the Attorney General suspend the briefing schedules and clarify the question presented, and he granted, in part, both parties’ request for an extension of the deadline for submitting briefs in this case.


    L-A-B-R- et al., 27 I&N Dec. 245 (A.G. 2018) ID 3921 (PDF)

    The Attorney General referred the decisions of the Board of Immigration Appeals to himself for review of issues relating to when there is “good cause” to grant a continuance for a collateral matter to be adjudicated, ordering that the cases be stayed during the pendency of his review.


    CERVANTES NUNEZ, 27 I&N Dec. 238 (BIA 2018) ID 3920 (PDF)

    The crime of attempted voluntary manslaughter in violation of sections 192(a) and 664 of the California Penal Code, which requires that a defendant act with the specific intent to cause the death of another person, is categorically an aggravated felony crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2012), notwithstanding that the completed offense of voluntary manslaughter itself is not such an aggravated felony.


    ROSA, 27 I&N Dec. 228 (BIA 2018) ID 3919 (PDF)

    (1) In deciding whether a State offense is punishable as a felony under the Federal Controlled Substances Act and is therefore an aggravated felony drug trafficking crime under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2012), adjudicators need not look solely to the provision of the Controlled Substances Act that is most similar to the State statute of conviction.

    (2) The respondent’s conviction under section 2C:35-7 of the New Jersey Statutes for possession with intent to distribute cocaine within 1,000 feet of school property is for an aggravated felony drug trafficking crime because his State offense satisfies all of the elements of 21 U.S.C. § 841(a)(1) (2012) and would be punishable as a felony under that provision.


    A-B-, 27 I&N Dec. 227 (A.G. 2018) ID 3918 (PDF)

    The Attorney General referred the decision of the Board of Immigration Appeals to himself for review of issues relating to whether being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum and withholding of removal, ordering that the case be stayed during the pendency of his review.


    E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018) ID 3917 (PDF)

    The Attorney General referred the decision of the Board of Immigration Appeals in Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014), to himself for review and vacated that decision.


    MENDEZ, 27 I&N Dec. 219 (BIA 2018) ID 3916 (PDF)

    Misprision of felony in violation of 18 U.S.C. § 4 (2006) is categorically a crime involving moral turpitude. Matter of Robles, 24 I&N Dec. 22 (BIA 2006), reaffirmed. Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012), followed in jurisdiction only.


    J-C-H-F-, 27 I&N Dec. 211 (BIA 2018)

    ID 3915 (PDF)

    When deciding whether to consider a border or airport interview in making a credibility determination, an Immigration Judge should assess the accuracy and reliability of the interview based on the totality of the circumstances, rather than relying on any one factor among a list or mandated set of inquiries.


    SINIAUSKAS , 27 I&N Dec. 207 (BIA 2018) ID 3914 (PDF)

    (1) In deciding whether to set a bond, an Immigration Judge should consider the nature and circumstances of the alien’s criminal activity, including any arrests and convictions, to determine if the alien is a danger to the community, but family and community ties generally do not mitigate an alien’s dangerousness.

    (2) Driving under the influence is a significant adverse consideration in determining whether an alien is a danger to the community in bond proceedings.


    CASTILLO ANGULO, 27 I&N Dec. 194 (BIA 2018) ID 3913 (PDF)

    (1) In removal proceedings arising within the jurisdiction of the United States Courts of Appeals for the Fifth and Ninth Circuits, an alien who was “waved through” a port of entry has established an admission “in any status” within the meaning of section 240A(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a)(2) (2012). Tula-Rubio v. Lynch, 787 F.3d 288 (5th Cir. 2015), and Saldivar v. Sessions, 877 F.3d 812 (9th Cir. 2017), followed in jurisdiction only.

    (2) In removal proceedings arising outside the Fifth and Ninth Circuits, to establish continuous residence in the United States for 7 years after having been “admitted in any status” under section 240A(a)(2), an alien must prove that he or she possessed some form of lawful immigration status at the time of admission.


    W-Y-C-& H-O-B-, 27 I&N Dec. 189 (BIA 2018) ID 3912 (PDF)

    (1) The Department of Homeland Security is not precluded by res judicata from initiating a separate proceeding to remove an alien as one convicted of an aggravated felony burglary offense under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2012), based on the same conviction that supported a crime of violence aggravated felony charge under section 101(a)(43)(F) in the prior proceeding. Bravo-Pedroza v. Gonzales, 475 F.3d 1358 (9th Cir. 2007), not followed.

    (2) The Board of Immigration Appeals generally will not address a newly articulated particular social group that was not advanced before the Immigration Judge.


    CASTRO-TUM, 27 I&N Dec. 187 (A.G. 2018) ID 3911 (PDF)

    The Attorney General referred the decision of the Board of Immigration Appeals to himself for review of issues relating to the authority to administratively close immigration proceedings, ordering that the case be stayed during the pendency of his review.


    JASSO ARANGURE, 27 I&N Dec. 178 (BIA 2017) ID 3910 (PDF)

    (1) The Department of Homeland Security is not precluded by res judicata from initiating a separate proceeding to remove an alien as one convicted of an aggravated felony burglary offense under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2012), based on the same conviction that supported a crime of violence aggravated felony charge under section 101(a)(43)(F) in the prior proceeding. Bravo-Pedroza v. Gonzales, 475 F.3d 1358 (9th Cir. 2007), not followed.

    (2) Home invasion in the first degree in violation of Michigan Compiled Laws section 750.110a(2) is a categorical burglary offense under section 101(a)(43)(G) of the Act.


    J-A-B- & OBSHATKO, 27 I&N Dec. 173 (BIA 2017) ID 3909 (PDF)

    Whether a violation of a protection order renders an alien removable under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(ii)(2012), is not governed by the categorical approach, even if a conviction underlies the charge; instead, an Immigration Judge should consider the probative and reliable evidence regarding what a State court has determined about the alien’s violation. Matter of Strydom 25 I&N Dec. 507 (BIA 2011), clarified.


    J-A-B- & I-J-V-A-, 27 I&N Dec. 168 (BIA 2017) ID 3908 (PDF)

    An Immigration Judge does not have authority to terminate removal proceedings to give an arriving alien an opportunity to present an asylum claim to the Department of Homeland Security in the first instance.


    KEELEY, 27 I&N Dec. 146 (BIA 2017) ID 3907 (PDF)

    (1) The term “rape” in section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2012), encompasses an act of vaginal, anal, or oral intercourse, or digital or mechanical penetration, no matter how slight. Perez-Gonzalez v. Holder, 667 F.3d 622 (5th Cir. 2012), not followed.


    TAVDIDISHVILI, 27 I&N Dec. 142 (BIA 2017) ID 3906 (PDF)

    Criminally negligent homicide in violation of section 125.10 of the New York Penal Law is categorically not a crime involving moral turpitude, because it does not require that a perpetrator have a sufficiently culpable mental state.


    VELLA, 27 I&N Dec. 138 (BIA 2017)

    (PDF)

    An alien “has previously been admitted to the United States as an alien lawfully admitted for permanent residence” within the meaning of section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2012), if he or she was inspected, admitted, and physically entered the country as a lawful permanent resident at any time in the past, even if such admission was not the alien’s most recent acquisition of lawful permanent resident status.

    PANGAN-SIS, 27 I&N Dec. 130 (BIA 2017)

    ID 3904 (PDF)

    An alien seeking to qualify for the exception to inadmissibility in section 212(a)(6)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(ii) (2012), must satisfy all three subclauses of that section, including the requirement that the alien be “a VAWA self-petitioner.”


    REHMAN, 27 I&N Dec. 124 (BIA 2017)

    ID 3903 (PDF)

    Where a petitioner seeking to prove a familial relationship submits a birth certificate that was not registered contemporaneously with the birth, an adjudicator must consider the birth certificate, as well as all the other evidence of record and the circumstances of the case, to determine whether the petitioner has submitted sufficient reliable evidence to demonstrate the claimed relationship by a preponderance of the evidence.


    D-R-, 27 I&N Dec. 105 (BIA 2017)

    ID 3902 (PDF)

    (1) A misrepresentation is material under section 212(a)(6)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2012), when it tends to shut off a line of inquiry that is relevant to the alien’s admissibility and that would predictably have disclosed other facts relevant to his eligibility for a visa, other documentation, or admission to the United States. Forbes v. INS, 48 F.3d 439 (9th Cir. 1995), not followed.

    (2) In determining whether an alien assisted or otherwise participated in extrajudicial killing, an adjudicator should consider (1) the nexus between the alien’s role, acts, or inaction and the extrajudicial killing and (2) his scienter, meaning his prior or contemporaneous knowledge of the killing. Miranda Alvarado v. Gonzales, 449 F.3d 915 (9th Cir. 2006), not followed.


    DELGADO, 27 I&N Dec. 100 (BIA 2017)

    ID 3901 (PDF)

    Robbery under section 211 of the California Penal Code, which includes the element of asportation of property, is categorically an aggravated felony theft offense under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2012), regardless of whether a violator merely aided or abetted in the asportation of property stolen by a principal.

    MOHAMED, 27 I&N Dec. 92 (BIA 2017) ID 3900 (PDF)

    Entry into a pretrial intervention agreement under Texas law qualifies as a “conviction” for immigration purposes under section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2012), where (1) a respondent admits sufficient facts to warrant a finding of guilt at the time of his entry into the agreement, and (2) a judge authorizes an agreement ordering the respondent to participate in a pretrial intervention program, under which he is required to complete community supervision and community service, pay fees and restitution, and comply with a no-contact order.

    (2)The restrictions on removal in section 208(c)(1)(A) of the Act, 8 U.S.C. § 1158(c)(1)(A) (2012), do not apply to an alien granted asylum whose status is adjusted to that of an alien lawfully admitted for permanent residence pursuant to section 209(b) of the Act.

    J-G-D-F-,, 27 I&N Dec. 82 (BIA 2017) ID 3899 (PDF)

    Burglary of a dwelling in violation of section 164.225 of the Oregon Revised Statutes is a crime involving moral turpitude, even though the statute does not require that a person be present at the time of the offense, provided that the dwelling is at least intermittently occupied.

    (2)The restrictions on removal in section 208(c)(1)(A) of the Act, 8 U.S.C. § 1158(c)(1)(A) (2012), do not apply to an alien granted asylum whose status is adjusted to that of an alien lawfully admitted for permanent residence pursuant to section 209(b) of the Act.

    N-A-I-, 27 I&N Dec.72 (BIA 2017) ID 3898 (PDF)

    1) An alien who adjusts status under section 209(b) of the Immigration and Nationality Act, 8 U.S.C. § 1159(b) (2012), changes his or her status from that of an alien granted asylum to that of an alien lawfully admitted for permanent residence, thereby terminating the alien’s asylee status. Matter of C-J-H-, 26 I&N Dec. 284 (BIA 2014), clarified.

    (2)The restrictions on removal in section 208(c)(1)(A) of the Act, 8 U.S.C. § 1158(c)(1)(A) (2012), do not apply to an alien granted asylum whose status is adjusted to that of an alien lawfully admitted for permanent residence pursuant to section 209(b) of the Act.

    IZAGUIRRE, 27 I&N Dec. 67 (BIA 2017) ID 3897 (PDF)

    An offense may be a “specified offense against a minor” within the meaning of section 111(7) of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, 592, even if it involved an undercover police officer posing as a minor, rather than an actual minor.

    DEANG, 27 I&N Dec. 57 (BIA 2017) ID 3896 (PDF)

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

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

    FALODUN, 27 I&N Dec. 52 (BIA 2017) ID 3895 (PDF)

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


    ALDAY-DOMINGUEZ, 27 I&N Dec. 48 (BIA 2017) ID 3894 (PDF)

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


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

    ID 3893 (PDF)

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

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


    M-B-C-, 27 I&N Dec. 31 (BIA 2017) ID 3892 (PDF)

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


    J.M. ALVARADO, 27 I&N Dec. 27 (BIA 2017) ID 3891 (PDF)

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


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

    ID 3890 (PDF)

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


    W-Y-U-, 27 I&N Dec. 17 (BIA 2017) ID 3889 (PDF)

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

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


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

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


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

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

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


    Posted in BIA, BIA Precedent Decisions, BIA Precedent Decisions Volume 25, BIA Precedent Decisions Volume 26, BIA Precedent Decisions Volume 27 (2017-) Executive Office for Immigration Review, BIA PRECEDENT TABLE, BIA Precedent Table-1995 to Present, Board of Immigration Appeals, EOIR, Executive Office for Immigration Review | Leave a comment

    Federal Courts to Continue Funded Operations Until January 25

    During the partial shutdown of the federal government, which began December 22, 2018, the Judiciary has continued to operate by using court fee balances and other “no-year” funds. As of January 16, 2019, the Administrative Office of the U.S. Courts (AO) estimates that federal courts can sustain funded operations through January 25, 2019. Previously, the AO had estimated that Judiciary funding would be exhausted on January 18, resulting in federal courts relying on unpaid staff to perform critical operations.

    The additional week of funding was mainly attributed to aggressive efforts to reduce expenditures. In recent weeks, courts and federal public defender offices have delayed or deferred non-mission critical expenses, such as new hires, non-case related travel, and certain contracts. Judiciary employees are reporting to work and currently are in full-pay status.

    The Judiciary is continuing these cost-cutting efforts in the hopes of sustaining operations past January 25, but at some point in the near future, existing funds will run out if new appropriated funds do not become available. Should that occur, the Judiciary would operate under the terms of the Anti-Deficiency Act,1 which permits mission-critical work. This includes activities to support the exercise of the courts’ constitutional powers under Article III, specifically the resolution of cases and related services. Each court would determine the staff necessary to support its mission-critical work.

    In response to requests by the Department of Justice, some federal courts have issued orders suspending or postponing civil cases in which the government is a party, while others have declined to do so. Such orders are published on court internet sites. Criminal cases are expected to proceed uninterrupted.

    The Case Management/Electronic Case Files (CM/ECF) system remains in operation for electronic filing of documents, as does PACER, which enables the public to read court documents.

    Courts have been encouraged to work with their district’s U.S. Attorney, U.S. Marshal, and Federal Protective Service staff to discuss service levels required to maintain court operations. The General Services Administration has begun to reduce operations and courts are working with their local building managers to mitigate the impact on services.

    Updates will be provided as more information becomes available.

    Posted in Federal Courts, partial shutdown of the federal government | Leave a comment

    EOIR Issues Policy Memorandum Regarding Acceptance of NTAs by Immigration Courts and Use of Interactive Scheduling System

    On December 21, 2018, Executive Office of Immigration Review (EOIR) Director James R. McHenry III issued PM 19-08, “Acceptance of Notices to Appear and Use of the Interactive Scheduling System,” which is intended to establish standards for the receipt of Notices to Appear (NTAs) as filed by the Department of Homeland Security (DHS). It provides in part:

    [A]lthough DHS may serve an NTA to an individual with a time and date for a hearing on it, the immigration court does not actually acquire jurisdiction–and, thus, the case is not actually “scheduled” and no record of proceedings exists–until DHS files the NTA with the court. Accordingly, although an individual may believe that his or her case has been scheduled for a hearing at the time and date indicated on the NTA and may appear for that hearing, that hearing cannot occur if the NTA has not also been filed with the immigration court.

    All individuals who have been served as NTA with a hearing date and time on it are encouraged to contact EOIR’s Automated Case Hotline [1-800-898-7180 (toll-free)] to confirm the time and date of any hearing listed on an NTA. If no information is found … and the scheduled hearing is less than 10 calendar days away, the individual is encouraged to contact the DHS office that issued the NTA or the relevant immigration court.

    Download Memo

    Posted in Acceptance of NTAs by Immigration Courts | Leave a comment