USCIS Policy Manual Volume 7 – Adjustment of Status

USCIS Policy Manual

Current as of January 05, 2017

Volume 7 – Adjustment of Status

Part B – 245(a) Adjustment

Chapter 2 – Eligibility Requirements

A​ foreign national​ must meet certain eligibility requirements to ​adjust​ status​ to that of a lawful permanent resident (LPR).​

INA 245(a) Adjustment of Status​ Eligibility Requirements ​

The applicant must have​ been​:​

I​nspected and admitted​into the United States​; or​

Inspected and paroled into the United States.​

The applicant must properly file an adjustment of status application.​

The applicant must be physically present in the United States.​

The applicant must be​eligible to receive an immigrant visa.​

An immigrant visa must be immediately available when the applicant files the adjustment of status application​
[1]
See Part A, General Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section B, Definition of Properly Filed [7 USCIS-PM A.3(B)].
and at the time of final adjudication.​
[2]
See Part A, General Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)].

The applicant must be admissible to the United States for lawful permanent residence or eligible for a waiver of inadmissibility or other form of relief.​

The applicant merits the favorable exercise of discretion.​
[3]
See Part A, Adjustment of Status Policies and Procedures, Chapter 9, Legal Analysis and Appropriate Use of Discretion [7 USCIS-PM A.9].

A. “​Inspected and Admitted​”​ or ​“Inspected and ​Paroled​”​

In 1960, Congress amended INA 245(a) and made adjustment of status available to any otherwise eligible applicant who has been “inspected and admitted or paroled” into the United States.​
[4]
As originally enacted, section 245(a) made adjustment available only to a foreign national who “was lawfully admitted . . . as a bona fide nonimmigrant and who is continuing to maintain that status.” See Immigration and Nationality Act of 1952, Pub. L. 82-414, 66 Stat. 163, 217 (June 27, 1952). Admission as a bona fide nonimmigrant remained a requirement until 1960. See Pub. L. 86-648 (July 14, 1960). Congress amended that threshold requirement several times. The 1960 amendment removed the requirement of admission as a bona fide nonimmigrant.
Since​ 1960, the courts, l​egacy ​Immigration and Naturalization Service,​ and ​USCIS ​have read ​the statutory language ​“​inspected and admitted or paroled​”​ as:​

I​nspected and admitted​into the United States​; or​

Inspected and paroled into the United States.​

This requirement must be satisfied before the foreign national applies for adjustment of status.​
[5]
See 8 CFR 245.1(b)(3).
If an applicant has not been inspected and admitted or inspected and paroled before filing an adjustment application, the officer must deny the adjustment application.​
[6]
See Legacy Immigration and Naturalization Service (INS) General Counsel Opinion 94-28, 1994 WL 1753132 (“Congress enacted INA 245 in such a manner that persons who entered the U.S. without inspection are ineligible to adjust”). See S. Rep. 86-1651, 1960 U.S.C.C.A.N. 3124, 3136 (“This legislation will not benefit the alien who has entered the United States in violation of the law”) and 3137 (“The wording of the amendments is such as not to grant eligibility for adjustment of status to alien crewmen and to aliens who entered the United States surreptitiously”). See Matter of Robles, 15 I&N Dec. 734 (BIA 1976) (explaining that entry into the United States after intentionally evading inspection is a ground for deportation under (then) INA 241(a)(2)).

The inspected and admitted or ​inspected and ​paroled requirement does not apply to the following foreign nationals seeking adjustment of status:​

INA 245(i) applicants; and​

V​iolence ​A​gainst ​W​omen ​A​ct (VAWA)​ applicants​.​
[7]
See INA 245(a).

Special immigrant juveniles (SIJ) and other special immigrants are not exempt from this requirement​. However​, statutory provisions expressly state that these special immigrants are considered paroled for adjustment eligibility purposes. Accordingly, the beneficiaries of approved SIJ petitions meet the inspected and admitted or​inspected and​ paroled requirement, regardless of their manner of arrival in the United States.​
[8]
See INA 245(h)(1), which states that SIJ-based applicants are considered paroled into the United States for purposes of INA 245(a).
Certain special immigrants​also meet this requirement​.​
[9]
See INA 245(g), which holds that certain special immigrants, as defined under INA 101(a)(27)(k), are considered paroled into the United States for purposes of INA 245(a).

1. Inspect​ion​

Authority​

Per delegation by the Secretary of Homeland Security, U.S. Customs and Border Protection (CBP) has jurisdiction over and exclusive inspection authority at ports-of-entry.​
[10]
See Delegation of Authority to the Commissioner of U.S. Customs and Border Protection, Department of Homeland Security (DHS) Delegation No. 7010.3.

Definition and Scope​

I​nspection is the ​formal process of determining whether ​a foreign national​ may lawfully ​enter the United States​. ​Immigration laws as early as 1875 specified that inspection must occur prior to a ​foreign national’s​ landing in or entering the United States and that prohibited ​foreign national​s were to be returned​ to the country from which they came at no cost or penalty to the conveyor or vessel.​
[11]
See Section 5 of the Act of March 3, 1875, 18 Stat. 477. See Sections 6, 8, 10, and 11 of the Act of March 3, 1891, 26 Stat. 1084. See Sections 8, 12, 16, and 18 of the Act of February 20, 1907, 34 Stat. 898. See Sections 10, 15, and 16 of the Immigration Act of 1917, Pub. L. 301 (February 5, 1917).
Inspections for air, sea, and land arrivals are now codified ​in the INA​,​ including​ criminal penalties for illegal entry.​
[12]
See INA 231-235 and INA 275. See Matter of Robles, 15 I&N Dec. 734 (BIA 1976) (holding that entry into the United States after intentionally evading inspection is a ground for deportation under (then) INA 241(a)(2)).

To lawfully enter the United States, a foreign national must apply and present himself or herself​ in​person to an immigration officer at a ​U.S.​port of entry​ when the port is open for inspection​.​
[13]
See 8 CFR 235.1(a). See Matter of S-, 9 I&N Dec. 599 (BIA 1962) (inspection is the process that determines an foreign national’s initial right to enter the United States upon presenting himself or herself for inspection at a port of entry). See Ex Parte Saadi, 23 F.2d 334 (S.D. Cal. 1927).
A foreign national who arrives at a ​port of entry​ and​presents himself or herself for inspection is an applicant for admission. Through the i​nspection​ process, an immigration officer​ determine​s​ whether ​the foreign national is admissible and ​may enter the United States under all the applicable provisions of immigration laws.​

As part of the inspection, the foreign national must: ​

Present any and all required documentation, including​fingerprints, photographs, other biometric identifiers, documentation of status in the United States, and any other requested evidence to determine the foreign nation​al’s identity and admissibility; and​

Establish that he or she is not subject to removal under immigration laws, Executive Orders, or Presidential Proclamations.​
[14]
See INA 235(d). See 8 CFR 235.1(f)(1).

In general, if the foreign national presents himself or herself for questioning​in​person, the inspection requirement is met.​
[15]
See Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980), and Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), which held that a foreign national who had physically presented himself or herself for questioning and made no knowing false claim of citizenship had satisfied the inspected and admitted requirement of INA 245(a); alternatively, a foreign national who gains admission to the U.S. upon a knowing false claim to U.S. citizenship cannot be deemed to have been inspected and admitted. See Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013).
Nonetheless, if the foreign national enters the United States by falsely claiming U.S. citizenship, the foreign national is not considered to have been inspected by an immigration officer. In addition, the entry is not considered an admission for immigration purposes.​
[16]
See Reid v. INS, 420 U.S. 619, 624 (1975) (a foreign national who enters the United States based on a false claim to U.S. citizenship is excludable under former INA 212(a)(19), or INA 212(a)(6)(C) today, and considered to have entered without inspection).

Inspection Outcomes​

Upon inspection, the officer at the ​port of entry​ typically decides one of the following outcomes:​

The officer admits the foreign national;​

The officer paroles the foreign national;​

The officer allows the foreign national to withdraw his or her application for admission and depart immediately from the United States;​
[17]
See INA 235(a)(4).

The officer denies the foreign national admission into the United States; or ​

The officer ​defer​s the ​inspection ​to a later time​at either the same or ​another CBP office or a ​port of entry​.​
[18]
Deferred inspection is a form of parole. A foreign national who is deferred inspection is paroled into the United States for the period of time necessary to complete the inspection. See 8 CFR 235.2(c). For more information on deferred inspection, see Subsection 3, Parole [7 USCIS-PM B.2(A)(3)].

2. Admission​
[19]
See INA 101(a)(13)(A). The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) amended the statute by changing the concept of “entry” to “admission” and “admitted.” See Section 301(a) of IIRIRA, Division C of Pub. L. 104-208, 110 Stat. 3009, 3009-575 (September 30, 1996). INA 101(a)(13)(B) clarifies that parole is not admission.

A foreign national is ​admitted if the following conditions are met:​
[20]
See INA 101(a)(13)(A) (“The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”). Legislative history does not elaborate on the meaning of “lawful.”

The foreign national applied for admission as an “alien” (foreign national) at a ​port of entry​; and​

An immigration officer inspected the foreign national as an “alien” and authorized him or her to enter the United States in accordance with the procedures for admission.​
[21]
See 8 CFR 235.1(f)(1).

A foreign national who meets these two requirements is admitted, even if the foreign national obtained the admission by fraud.​
[22]
See Matter of Areguilin, 17 I&N Dec. 308 (BIA 1980). See INA 291 (burden of proof). See Emokah v. Mukasey, 523 F.3d 110 (2nd Cir 2008). While it is an “admission,” procuring admission by fraud or willful misrepresentation is illegal and has several consequences. For example, the foreign national may be inadmissible and removable. See INA 212(a)(6)(C) and INA 237(a)(1)(A).
Likewise, t​h​e foreign national is admitted, ​even if the CBP officer performed ​a​ cursory inspection. ​

As long as the foreign national meets the procedural requirements for admission, the foreign national meets the inspected and admitted requirement for adjustment of status.​
[23]
See Matter of Quilantan, 25 I&N Dec. 289, 290 (BIA 2010). See Matter of Areguilin, 17 I&N Dec. 308 (BIA 1980). See INA 245(a). The foreign national is not inadmissible as an illegal entrant under INA 212(a)(6)(A)(i). For more information on admissibility, see Volume 8, Admissibility [8 USCIS-PM].
Any type of admission can meet the inspected and admitted requirement, which includes, but is not limited to, admission as a nonimmigrant, an immigrant, or a refugee. ​

Notwithstanding, if the foreign national makes a false claim to U.S. citizenship or to U.S. nationality at the ​port of entry​ and an immigration officer permits the foreign national to enter the United States, the foreign national has not been admitted.​
[24]
See Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013) (a foreign national who enters the United States by falsely claiming U.S. citizenship is not deemed to have been inspected by an immigration officer, so the entry is not an “admission” under INA 101(a)(13)(A)).
A U.S. citizen arriving at a ​port of entry​ is not subject to inspection; therefore, a foreign national who makes a false claim to U.S. citizenship is considered to have entered without inspection​.​
[25]
See Reid v. INS, 420 U.S. 619, 624 (1975). See Matter of S-, 9 I&N Dec. 599 (BIA 1962). A foreign national who makes a false claim to U.S. citizenship is inadmissible for making the claim (INA 212(a)(6)(C)(ii)). The foreign national may also be inadmissible for presence without admission or parole (INA 212(a)(6)(A)(i)) and unlawful presence after previous immigration violations (INA 212(a)(9)(C)).

Similarly, a foreign national who enter​ed​ the United States after falsely claiming to be a returning LPR is not considered to have been procedurally inspected and admitted​ because a returning LPR generally is not an applicant for admission.​
[26]
Such foreign nationals are inadmissible for presence without admission or parole and may be inadmissible for unlawful presence after previous immigration violations. See INA 212(a)(6)(A)(i) and INA 212(a)(9)(C).
An LPR returning from a temporary trip abroad would only be considered to be seeking admission or readmission to the United States if ​any ​of the ​following ​factors ​applies:​

The LPR has abandoned or relinquished his or her LPR status;​

The LPR has been absent from the United States for a continuous period in excess of 180 days;​

The LPR has engaged in illegal activity after having departed the United States;​

The LPR has departed from the United States while under legal process seeking his or her removal from the United States, including removal proceedings under the INA and extradition proceedings;​

The LPR has committed an offense described in the criminal-related inadmissibility grounds, unless the LPR has been granted relief for the offense;​
[27]
See INA 212(a)(2). See INA 212(h) and INA 240A(a).
or​

The LPR is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.​
[28]
See INA 101(a)(13)(C). See generally Matter of Collado-Munoz, 21 I&N Dec. 1061 (BIA 1997). The foreign national who enters by making a false claim to LPR status at a port of entry and who is permitted to enter is inadmissible for presence without admission or parole (INA 212(a)(6)(A)(i)) and fraud and misrepresentation (INA 212(a)(6)(C)(i)). The foreign national may also be inadmissible for unlawful presence after previous immigration violations. See INA 212(a)(9)(C).

Evidence of Admission​

An​Arrival/​Departure ​Record (Form I-94)​, including a replacement​
[29]
This will typically be documented by an approved Form I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Document.
when appropriate​, is the most common document evidencing a foreign national’s admission.​
[30]
CBP or USCIS can issue a Form I-94, Arrival/Departure Record. If admitted to the United States by CBP at an airport or seaport after April 30, 2013, CBP may have issued an electronic Form I-94 to the applicant instead of a paper Form I-94. To obtain a paper version of an electronic Form I-94, visit the CBP Web site. CBP does not charge a fee for this service. Some travelers admitted to the United States at a land border, airport, or seaport, after April 30, 2013, with a passport or travel document and who were issued a paper Form I-94 by CBP may also be able to obtain a replacement Form I-94 from the CBP Web site without charge. Applicants may also obtain Form I-94 by filing Form I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Record, with USCIS. USCIS charges a fee for this service.
The ​following ​are other ​types of documentation ​that may be accepted as​ proof of admission into the United States:​

Admission stamp in passport​, which may be verified using Department of Homeland Security (DHS) systems;​

Employment Authorization Card (Form I-688A), for special ​agricultural worker applicants, provided it was valid during the last claimed date of entry on the adjustment application;​

Temporary Resident Card (Form I-688), for special agricultural workers or legalization applicants granted temporary residence, provided it was valid during the​last ​claimed date of entry on the ​adjustment​ application​;​and​

Border Crossing Card (Form I-586 or Form DSP-150​
[31]
Form DSP-150 is issued by the Department of State.
), provided it was valid on the date of last claimed entry.​

When inspected and admitted to the United States, the following nonimmigrants are exempt from the issuance of an Arrival/Departure Record:​
[32]
See 8 CFR 235.1(h)(1)(i)-(v).

A ​Canadian ​c​itizen admitted as a visitor for business, visitor for pleasure, or who was permitted to directly tr​ansit through the United States;​

A ​nonimmigrant residing in the British Virgin Islands who was admitted only to the U​nited ​S​tates​ Virgin Islands as a visitor for business or pleasure​;​
[33]
See 8 CFR 212.1(b).

A ​Mexican ​n​ational admitted with ​a B-1/B-2 Visa and Border Crossing Card ​(Form DSP-150) ​at a land or sea ​port of entry​ as a visitor for business or pleasure ​for a period of 30 days to trave​l within 25 miles of the border; and​

A ​Mexican ​n​ational in possession of a ​Mexican diplomatic or official passport​.​
[34]
See 8 CFR 212.1(c).

In these situations, an applicant should submit alternate evidence to prove his or her inspection and admission to the United States. This may include a Border Crossing Card, plane tickets evidencing travel to the United States, or other corroborating evidence.​

3. Parole​

Authority​

The Secretary of Homeland Security delegated parole authority to USCIS, CBP, and U.S. Immigration and Customs Enforcement (ICE).​
[35]
See Delegation to the Bureau of Citizenship and Immigration Services, DHS Delegation No. 0150.1; Delegation of Authority to the Assistant Secretary for U.S. Immigration and Customs Enforcement, DHS Delegation No. 7030.2; Delegation of Authority to the Commissioner of U.S. Customs and Border Protection, DHS Delegation No. 7010.3.

Definition​ and Scope​

A foreign national is paroled if ​the following conditions are met​: ​

The foreign national is seeking admission to the United States at a ​port of entry​; and ​

An immigration officer inspected the foreign national as an “alien” and permitted the foreign national to enter the United States without determining whether the foreign national may be admitted into the United States.​
[36]
See INA 212(d)(5)(A).

A grant of parole is a temporary and discretionary act exercised on a case-by-case basis. ​Parole, by definition, ​is not an admission.​
[37]
See INA 101(a)(13)(B) and 212(d)(5)(A).

Paroled for ​Deferred Inspection​
[38]
See 8 CFR 235.2.

On occasion, ​CBP grants deferred inspection to arriving foreign nationals found inadmissible during a preliminary inspection at a port of entry. Defer​red inspection is generally​ granted ​only ​after CBP​:​

V​erifies the foreign national’s identity and nationality​;​

D​etermines that the foreign national would likely be able to overcome the identified inadmissibility by obtaining a waiver or additional evidence​;​ and​

D​etermines that the foreign national does not present a national security risk to the United States.​

The decision to defer inspection is at the CBP officer’s discretion. ​

If granted deferred inspection, CBP paroles the foreign national into the United States and defers completion of the inspection to a later time.​A foreign national paroled for a deferred inspection typically​reports​ for completion of inspection within 30 days​ of the deferral​
[39]
CBP generally issues a Notice to Appear 30 days after a foreign national’s non-appearance for the deferred inspection, so an officer should review the relevant case and lookout systems for any entries related to CBP.
to a CBP office with jurisdiction over the area where the ​foreign national​ will be staying or residing​ in the United States.​
[40]
CBP generally creates either an A-file or T-file to document the deferred inspection.

The​ grant ​of​parole for a ​deferred inspection ​satisfies​ the “inspected and​paroled” requirement​ for purposes of adjustment eligibility​.​
[41]
See Legacy Immigration and Naturalization Service (INS) General Counsel Opinion 94-28, 1994 WL 1753132 (whether deferred inspection constitutes parole for purposes of adjustment of status under INA 245).

Urgent Humanitarian Reasons or Significant Public Benefit​

DHS may parole a foreign national based on urgent humanitarian or significant public benefit reasons.​
[42]
See INA 212(d)(5).
DHS may grant urgent humanitarian or significant public benefit parole only on a case-by-case basis.​
[43]
See INA 212(d)(5).
Any type of ​urgent humanitarian​,​ significant public benefit​,​ or deferred inspection-directed ​parole meets the “paroled into the United States” requirement.​
[44]
Only parole under INA 212(d)(5)(A) meets this requirement.

Parole in Place: Parole of Certain Foreign Nationals Present Without Admission or Parole​

A foreign national who is present in the United States without ​inspection​ and ad​mission​ or inspect​ion​ and parole is an applicant for admission.​
[45]
See INA 235(a).
DHS can exercise its​ discretion to parole ​such a ​foreign national​ into the United States.​
[46]
See Legacy INS General Counsel Opinion 98-10, 1998 WL 1806685.
In general​, USCIS grants parole in place only sparingly. ​

The fact that a foreign national is a spouse, child, or parent of an ​a​ctive ​d​uty member of the U.S. ​a​rmed ​f​orces, a member in the Selected Reserve of the Ready Reserve, or someone who previously served in the U.S. ​armed forces​ or the Selected Reserve of the Ready Reserve ordinarily weighs heavily in favor of parole in place. Absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of​ discretion ​for ​such a ​foreign national. ​

If DHS grants parole before the foreign national files an adjustment application​, the foreign national meets the “inspected and paroled” requirement for adjustment.​P​arole​ in place​does not ​permit approval of an adjustment application that was filed ​before​the grant of parole​.​
[47]
As with any immigration benefit request, eligibility for adjustment must exist when the application is filed and continue through adjudication. See 8 CFR 103.2(b)(1).

Parole ​in place does not ​relieve the foreign ​national of the need to meet all other eligibility requirements for adjustment of status and the favorable exercise of discretion.​
[48]
For example, parole does not erase any periods of prior unlawful status. Therefore, a foreign national who entered without inspection will remain ineligible for adjustment of status, even after a grant of parole, unless he or she is an immediate relative or falls within one of the other designated exceptions to INA 245(c)(2) or INA 245(c)(8).
For​ example, except for immediate relatives and certain other immigrants, a foreign national ​must​ have continuously maintained a lawful status since entry into the United States.​
[49]
See INA 245(c)(2). See Chapter 4, Status and Nonimmigrant Visa Violations – INA 245(c)(2) and INA 245(c)(8) [7 USCIS-PM B.4].

Conditional Parole​

Conditional parole is also known as release from custody. This is a separate and distinct process from parole and does not meet the “inspected and paroled” requirement for adjustment eligibility.​
[50]
See INA 236(a)(2)(B). Neither the statute nor regulations deem a release on conditional parole equal to a parole under INA 212(d)(5)(A). Several circuits and the BIA have opined on this and rejected the argument that the two concepts are equivalent processes. See Ortega-Cervantes v. Gonzales, 501 F.3d 1111 (9th Cir. 2007). See Matter of Castillo-Padilla, 25 I&N Dec. 257 (BIA 2010). See Delgado-Sobalvarro v. Atty. Gen., 625 F.3d 782 (3rd Cir. 2010). See Cruz Miguel v. Holder, 650 F.3d 189 (2nd Cir. 2011).

Evidence of Parole​

Evidence of parole includes: ​

A parole stamp on the foreign national’s advance parole document;​
[51]
See Form I-512 or I-512L, Authorization for Parole of an Alien into the United States.

A parole stamp in the foreign national’s passport; or​

An Arrival/Departure Record (Form I-94) endorsed with a parole stamp.​
[52]
See 8 CFR 235.1(h)(2). If a foreign national was admitted to the United States by CBP at an airport or seaport after April 30, 2012, the foreign national may have been issued an electronic Form I-94 by CBP, instead of a paper Form I-94. For more information, see the CBP Web site.

4. Commonwealth of the Northern Mariana Islands​

A ​Commonwealth of the N​orthern Mariana Islands (CNMI) a​pplicant​who is granted parole meets the inspected and paroled requirement. ​On May 8, 2008, the Consolida​ted Natural Resources Act​ was signed into law​, which ​replace​d​ the CNMI’s prior immigration laws​ and extended​ most ​U.S. immigration law ​provisions to the CNMI for the first time in history​.​
[53]
See Consolidated Natural Resources Act of 2008, Pub. L. 110-229 (May 8, 2008).
The transition period for implementation of U.S. immigration law in the CNMI began on November 28, 2009. ​

As of that date, all foreign nationals present in the CNMI (other than LPRs) became present in the United States by operation of law without admission or parole. In recognition ​of the unique situation caused by the extension of U.S. immigration laws to the CNMI, a​ll foreign nationals present in the CNMI on or after that date who apply for adjustment of status are considered applicants for admission​
[54]
See INA 235(a)(1).
to the United States and are eligible for parole.​

Because of these unique circumstances, USCIS grants parole to applicants otherwise eligible to adjust status to serve as both an inspection and parole for purposes of meeting the requirements for adjustment. Under this policy, t​he ​USCIS ​Guam ​f​ield ​o​ffice or the ​USCIS ​Saipan ​Application Support Center​ grant​s​ parole to an ​applicant​ otherwise eligible for parole and adjustment​immediately prior to approving the adjustment ​of status ​application.​

5. Temporary Protected Status​
[55]
See INA 244. See 8 CFR 244.

A foreign national who enters the United States without inspection and subsequently is granted temporary protected status (TPS) does not meet the inspected and admitted or inspected and paroled requirement.​
[56]
The 6th Circuit Court of Appeals has ruled that TPS status meets the inspected and admitted requirement for adjustment of status under INA 245 even if a foreign national granted TPS status entered the United States without inspection. See Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013). This decision is only binding on cases within the jurisdiction of the 6th Circuit: Kentucky, Michigan, Ohio, and Tennessee.
There is no legislative provision or history to suggest that Congress intended that recipients of TPS be eligible for adjustment.​
[57]
Under INA 245(a) or any other adjustment program.

USCIS’​s​ approval of ​TPS​confers ​lawful immigration status​ on the foreign national, but only for the stipulated time period and so long as the foreign national complies with all TPS requirements. Recipients of TPS must still meet​ the threshold requirement that ​a​ foreign ​national ​has been​ inspected and admitted or inspected and paroled in order to be eligible for adjustment of status.​A grant of TPS does not cure a foreign national’s entry without inspection or constitute an inspection and admission of the foreign national​.​
[58]
See Legacy INS General Counsel Opinion 91-27, 1991 WL 1185138. See Legacy INS General Counsel Opinion 93-59 , 1993 WL 1504006. See Serrano v. U.S. Atty. Gen., 655 F.3d 1260 (11th Cir. 2011).

If a foreign national under TPS departs the United States and is admitted or paroled upon return to a ​port of entry​, the foreign national meets the inspected and admitted or inspected and paroled requirement provided the inspection and parole occurred before he or she filed an adjustment application. ​The applicant, however, must still meet all other requirements to be eligible for adjustment. ​

DHS has authority to admit rather than parole TPS beneficiaries who travel and return with TPS-related advance parole documents.​
[59]
See Section 304(c) of the Miscellaneous and Technical Immigration and Naturalization Amendments Act of 1991, Pub. L. 102-232, 105 Stat. 1733, 1749 (December 12, 1991), amended in respects not relevant here by IIRIRA, Division C of Pub. L. 104-208, 110 Stat. 3009, 3009-546 (September 30, 1996).
For purposes of adjustment eligibility, it does not matter whether the TPS beneficiary was admitted or paroled. In either situation, once the foreign national is inspected at a ​port of entry​ and permitted to enter to the United States, the foreign national meets the inspected and admitted or ​inspected and ​paroled requirement. ​

6. Asylum​
[60]
See 8 CFR 209.2. For more information on asylee adjustment, see Part M, Asylee Adjustment [7 USCIS-PM M].

An asylee whose adjustment application is based on his or her asylee status adjusts under ​INA 209(b)​.​
[61]
Due to the different statutory bases, different eligibility requirements, exceptions, and waivers apply to applicants seeking adjustment based on their asylum status compared to those seeking adjustment under INA 245(a).
An asylee, however, may seek to adjust under ​INA 245(a)​ if the asylee prefers to adjust on a basis other than the asylee’s status. This may arise in cases where, for example, an asylee marries a U.S. citizen and subsequently seeks to adjust status as an immediate relative of a U.S. citizen rather than under the asylee provision. In order to adjust under INA 245(a), however, the asylee must meet the eligibility requirements that apply under that provision. ​

There may be circumstances where ​asylees​ are not able to meet certain requirements for adjustment under ​INA 245(a)​. For instance, a foreign national who enters without inspection and is subsequently granted asylum does not satisfy the inspected and admitted or ​inspected and ​paroled requirement.​
[62]
The grant of asylum is not an admission contemplated under INA 101(a)(13)(A). See Matter of V-X-, 26 I&N Dec. 147 (BIA 2013). See Legacy INS General Counsel Opinion, expressed by INS Central Office, Deputy Asst. Commissioner, Adjudications, R. Michael Miller, in letter dated September 4, 1986, reprinted in Interpreter Releases, Vol. 63, No. 40, October 10, 1986, pp. 891-892.
On the other hand, an asylee who departs the United States and is admitted or granted parole upon return to a port​of​entry meets the inspect​ed​ and admitted or inspected and paroled requirement. ​

7. Waved ​T​hrough at ​Port-of-Entry​

In some cases, a foreign national may claim that he or she ​arrived at ​a ​port of entry​ and presented himself or herself for inspection as a foreign national, but the inspector waved ​(allowed to pass) ​him or her through the ​port of entry​ without asking any questions. ​

Where a foreign national p​hysically presents himself or herself for questioning and makes​no knowing false claim to ​U.S. ​citizenship, the foreign ​national ​is ​considered to have been ​inspected even though he or she​volunteers no information and is asked no questions by the immigration​authorities. Such a foreign national satisfie​s​ the inspected and admitted​requirement of ​INA 245(a)​ as long as the foreign national sufficiently proves that he or she was indeed waved through by an immigration official at a ​port of entry​.​
[63]
See Matter of Quilantan, 25 I&N Dec. 285, 291-92 (BIA 2010). See Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980). See 8 CFR 103.2(b).

A​n officer ​may​find that an adjustment applicant satisfies​ the inspected and admitted ​requirement ​based on a claim that he or she was waved through at a ​port of entry​if​:​

T​he​ applicant submits evidence to support the claim, such as​third party ​affidavits ​from those with personal knowledge of the facts stated in the affidavits​and corroborating documentation; ​and ​

The officer determines that the claim is credible.​
[64]
Any documentary evidence of admission should be consistent with entry information provided in the adjustment application or in oral testimony and should not contradict any other admission or departure evidence in DHS records. For example, when there is no Arrival/Departure Record or passport with an admission stamp, an officer may rely on information in DHS records, information in the applicant’s file, and the applicant’s testimony to make a determination on whether the applicant was inspected and admitted or inspected and paroled into the United States.

The burden of proof is on the applicant to establish eligibility for adjustment of status.​
[65]
See 8 CFR 103.2(b). See Part A, Adjustment of Status Policies and Procedures, Chapter 9, Legal Analysis and Appropriate Use of Discretion [7 USCIS-PM A.9].
Accordingly, the applicant must support and sufficiently establish the claim that he or she was admitted as a foreign national and not as a presumed U.S. citizen. For example, if the applicant was in a car with U.S. license plates and with U.S. citizens onboard, the applicant should submit persuasive evidence to establish he or she physically presented himself ​or​ herself to the inspector and was admitted as a foreign national.​
[66]
For more information, see Subsection 2, Admission [7 USCIS-PM B.2(A)(2)].

B. Properly Filing ​an Adjustment Application​

To adjust status, ​a foreign national​ must file a​n​ Application to Register Permanent Residence or Adjust Status​ (​Form I-485​) in accordance with ​the ​form ​instructions. The ​adjustment ​application must be​properly signed​and accompanied by the ​appropriate fee​.​
[67]
See 8 CFR 103.2(a) and 8 CFR 103.2(b). See 8 CFR 103.2(a)(2). See 8 CFR 103.7(b) and 8 CFR 103.7(c). The applicant may submit a fee waiver request. See Form I-912, Request for Fee Waiver.
The application must be filed ​at the correct filing location​, ​as specified in the form​ instructions. ​USCIS rejects adjustment applications if the application is:​

F​iled at an incorrect location​; ​

Not filed with the correct fee, unless granted a fee waiver;​

N​ot​ properly​signed; or​

F​iled when a​n immigrant​ visa is unavailable​.​
[68]
See 8 CFR 103.2(a)(7) and 8 CFR 245.2(a)(2)(i). In addition, USCIS should process a fee refund when an adjustment application is accepted in error because a visa was unavailable at the time of filing and the error is recognized before interview or adjudication. For more information on the definition of “properly filed” and fee refunds, see Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions [7 USCIS-PM A.3].

C. Eligible to Receive an Immigrant Vis​a​

1. General Eligibility for an Immigrant Visa​

An adjustment applicant must be eligible to receive an immigrant visa. An applicant typically establishes eligibility for an immigrant visa through an immigrant petition in one of the categories listed in the table below. ​

Eligibility To Receive an Immigrant Visa​

Immigrant Category​

Petition ​

Who May Qualify​

Family-Based​

Petition for Alien Relative (​Form I-130​)​

Immediate relatives of U.S. citizens​
[69]
See INA 201(b). Immediate relatives of a U.S. citizen include the U.S. citizen’s spouse, children (unmarried and under 21 years of age), and parents (if the U.S. citizen is 21 years of age or older). Widow(er)s of U.S. citizens and foreign nationals admitted to the United States as a fiancé(e) or child of a fiancé(e) of a U.S. citizen may also be considered immediate relatives if they meet certain conditions.

Unmarried sons and daughters of U.S. citizens (21 years of age and older) ​

Spouses and unmarried children (under age 21) of LPRs ​

Unmarried sons and daughters of LPRs​

Married sons and daughters of U.S. citizens​

Brothers and sisters of U.S. citizens (if the U.S. citizen is 21 years of age or older)​

Family-Based​ Based​

Petition for Alien Fiancé(e) (​Form I-129F​)​

Fiancé(e) of a U.S. citizen​

Family-Based​

Petition for ​Amerasian​, Widow(​er​), or Special Immigrant (​Form I-360​)​

Widow or widower of a U.S. citizen​

Violence Against Women Act (VAWA) self-petitioners​

Employment-Based​

Immigrant Petition for Alien Worker (​Form I-140​)​

Priority workers​

Members of the professions holding an advanced degree or persons of exceptional ability; or​

Skilled workers, professionals, and other workers​

Employment-Based​

Immigrant Petition by Alien Entrepreneur (​Form I-526​)​

Entrepreneurs​

Special Immigrants​

Petition for ​Amerasian​, Widow(​er​), or Special Immigrant (​Form I-360​)​

Religious workers​

Certain international employees​

Panama Canal Zone employees​

Certain physicians​

International organization officers and employees​

Special immigrant juveniles​

Certain U.S. armed forces members​

Certain broadcasters​

Certain Afghanistan and Iraq nationals​

Diversity Immigrant Visa​
[70]
Diversity visas do not rely on a USCIS-filed petition to obtain a visa. The diversity visa lottery is conducted by the Department of State.

Not applicable (Diversity visas do not require a USCIS-filed petition)​

Diversity immigrants ​

2. Dependents​

The spouse and children of certain family-based, employment-based, and Diversity Immigrant Visa adjustment applicants may also obtain LPR status through their relationship with the principal applicant. Because the spouse and children do not have an independent basis to adjust status apart from their relationship to the principal immigrant, they are “dependents” of the principal for purpose of eligibility for adjustment of status. ​

Dependents do not have their own underlying immigrant petition and may only adjust based on the principal’s adjustment of status. In general, dependent applicants must have the requisite relationship to the principal both at the time of filing the adjustment application and at the time of final adjudication.​
[71]
See 8 CFR 103.2(b)(1).

3. Concurrent Filing​

The immigrant petition establishing the underlying basis to adjust is typically filed before the foreign national files the adjustment application​. In ​some instances, the ​applicant may file the adjustment application at the same time the immigrant petition is filed.​
[72]
See Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section C, Concurrent Filings [7 USCIS-PM A.3(C)].

D. Immigrant Visa Immediately Available at Time of Filing​ and at Time of Approval​

In general, an immigrant visa must be available before a foreign national can apply for adjustment of status.​
[73]
See Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section B, Definition of “Properly Filed,” Subsection 4, Visa Availability Requirement [7 USCIS-PM A.3(B)(4)] and Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)].
An immigrant visa is always available to foreign nationals seeking adjustment as immediate relatives. Visas are numerically limited for most other immigrant categories eligible to adjust​; applicants in these numerically limited categories may need to wait until a visa is available before they can file an adjustment application.​Furthermore, an immigrant visa must be available for issuance on the date USCIS approves any adjustment application.​
[74]
See INA 245(a)(3). See 8 CFR 245.1(g)(1), 8 CFR 245.2(a)(5)(ii), and 8 CFR 103.2(b)(1). For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)].

E. Admissible to the United States​

An a​djustment of status ​applicant ​must be admissible to the United States​.​
[75]
If one or more of the grounds listed in INA 212 applies to an applicant then the applicant may be inadmissible. For more information, see Volume 8, Admissibility [8 USCIS-PM] and Volume 9, Waivers [9 USCIS-PM].
A​n a​pplicant who ​is​ inadmissibl​e may apply for a waiver of the​ ground​of inadmissibility​, if a waiver​ is available​, or ​another form of relief​. The​ applicable​ grounds of inadmissibility and ​any ​available waivers​depend ​on​ the immigrant category ​under which ​the ​applicant​ is applying.​
[76]
See Volume 9, Waivers [9 USCIS-PM].

F. Bars​ to Adjustment of Status​

An applicant may not be eligible to apply for adjustment of status if one or more bars to adjustment applies.​
[77]
See INA 245(c).
The bars to adjustment of status may apply to foreign nationals who either entered the United States in a particular status or manner, or committed a particular act or violation of immigration law.​
[78]
Even if foreign nationals are barred from adjusting under INA 245(a), they may still adjust under another statutory basis as long as they meet the applicable eligibility requirements.
The table below refers to foreign nationals ineligible to apply for adjustment of status, unless otherwise exempt.​
[79]
An immigrant category may exempt an applicant or make an applicant eligible for a waiver of certain adjustment bars and grounds of inadmissibility. Even if an exemption applies to an applicant who would otherwise be barred from adjustment of status, the applicant may still be denied adjustment as a matter of discretion. For more information on discretion, see Part A, Adjustment of Status Policies and Procedures, Chapter 9, Legal Analysis and Appropriate Use of Discretion [7 USCIS-PM A.9].

Foreign Nationals ​Bar​red from ​Adjustment of Status​

Foreign National​

INA​

Section​

Entries and Periods of Stay to Consider​

Exempt ​

from Bar​

Crewman​
[80]
It is service as a crewman that triggers the bar to adjustment, not the actual nonimmigrant status. This bar applies if the foreign national was actually permitted to land under the D-1 or D-2 visa category. The bar also applies if the foreign national was a crewman admitted as a C-1 to join a crew, or as a B-2 if serving on a crew.

245(c)(1)​

Only most recent permission to land, or admission prior to filing for adjustment​

VAWA-based applicants​

In Unlawful Immigration Status On The Date The Adjustment Application Is Filed​

OR​

Who Failed to Continuously Maintain Lawful Status Since Entry into United States​
[81]
This does not apply to foreign nationals who failed to maintain lawful status through no fault of their own or solely for technical reasons, as defined in 8 CFR 245.1(d)(2).

OR​

Who Continues in, or accepts, Unauthorized Employment Prior to Filing for Adjustment ​

245(c)(2)​
[82]
The INA 245(c)(2) bar addresses three distinct types of immigration violations.

All entries and time periods spent in the United States (departure and return does not remove the ineligibility)​
[83]
See 8 CFR 245.1(d)(3).

VAWA-based applicants​

Immediate relatives​
[84]
See INA 201(b). Immediate relatives of a U.S. citizen include the U.S. citizen’s spouse, children (unmarried and under 21 years of age), and parents (if the U.S. citizen is 21 years of age or older). Widow(er)s of U.S. citizens and foreign nationals admitted to the United States as a fiancé(e) or child of a fiancé(e) of a U.S. citizen may also be considered immediate relatives if they meet certain conditions.

Certain special ​immigrants​
[85]
See special immigrants described in INA 101(a)(27)(H)-(K).

245(k) eligible​
[86]
If an adjustment applicant is eligible for the 245(k) exemption, then he or she is exempted from the INA 245(c)(2) bar to adjustment. See Chapter 8, Inapplicability of Bars to Adjustment, Section E, Employment-Based Exemption under INA 245(k) [7 USCIS-PM B.8(E)].

Admitted in Transit Without a Visa (TWOV)​

245(c)(3)​

Only most recent admission prior to filing for adjustment​

VAWA-based applicants​

Admitted as a Nonimmigrant Without a Visa under a Visa Waiver Program​
[87]
See INA 212(l) and INA 217.

245(c)(4)​

Only most recent admission prior to filing for adjustment​

VAWA-based applicants​

Immediate relatives​

Admitted as Witness or Informant​
[88]
See INA 101(a)(15)(S) and INA 245(j). The applicants are beneficiaries of a request by a law enforcement agency to adjust status (Form I-854, Inter-Agency Alien Witness and Informant Record).

245(c)(5)​

Only most recent admission prior to filing for adjustment​

VAWA-based applicants​

Who is Deportable Due to Involvement in Terrorist Activity or Group​
[89]
See INA 237(a)(4)(B).

245(c)(6)​

All entries and time periods spent in the United States ​

VAWA-based applicant​
[90]
Although VAWA-based applicants are exempt from all INA 245(c) bars per statute, a VAWA-based applicant may still be determined to be removable (INA 237(a)(4)(B)) or inadmissible (INA 212(a)(3)) due to egregious public safety risk and on security and related grounds.

Seeking Adjustment in an Employment-based Immigrant Category and Not in a Lawful Nonimmigrant Status​

245(c)(7)​

Only most recent admission prior to filing for adjustment​

VAWA-based applicants​

Immediate relatives and other family based applicants​

Special immigrant juveniles​
[91]
INA 245(c)(7) does not apply to VAWA-based applicants, immediate relatives, family-based applicants, or special immigrant juveniles because these foreign nationals are not seeking adjustment as employment-based applicants. See 8 CFR 245.1(b)(9).

245(k) eligible​
[92]
If an employment-based adjustment applicant is eligible for the INA 245(k) exemption, then he or she is exempted from the INA 245(c)(7) bar to adjustment. See Chapter 8, Inapplicability of Bars to Adjustment, Section E, Employment-Based Exemption under INA 245(k) [7 USCIS-PM B.8(E)].

Who Has Otherwise​Violated the Terms of a Nonimmigrant Visa​
[93]
This is also referred to as a foreign national who has violated the terms of his or her nonimmigrant status.

OR​

Who has Ever Engaged in Unauthorized Employment​
[94]
There are no time restrictions on when such a violation must have occurred while physically present in the United States. Violations either before or after the filing of Form I-485 will render a foreign national ineligible to adjust status under INA 245(a). An alien seeking employment during the pendency of his or her adjustment applicant must fully comply with the requirements of INA 274A and 8 CFR 274a. See 62 FR 39417 (July 23, 1997).

245(c)(8)​
[95]
The INA 245(c)(8) bar addresses two distinct types of immigration violations.

All entries and time periods spent in the United States (departure and return does not remove the ineligibility)​
[96]
See 8 CFR 245.1(d)(3).

VAWA-based applicants​

Immediate relatives​
[97]
USCIS interprets the exemption listed in INA 245(c)(2) for immediate relatives and certain special immigrants as applying to the 245(c)(8) bar in addition to the 245(c)(2) bar. See 62 FR 39417 (July 23, 1997).

Certain special immigrants​

245(k) eligible​
[98]
If an adjustment applicant is eligible for the 245(k) exemption, then he or she is exempted from the INA 245(c)(8) bar to adjustment. See Chapter 8, Inapplicability of Bars to Adjustment, Section E, Employment-Based Exemption under INA 245(k) [7 USCIS-PM B.8(E)].

In all cases, the foreign national is subject to any and all applicable grounds of inadmissibility even if the foreign national is not subject to any bar to adjustment, or is exempt from any or all the bars to adjustment. ​

1. Overlapping Bars​

Some​ bars to adjustment​ may overlap in their application, despite their basis in separate sections of the law.​
[99]
See INA 245(c)(2), INA 245(c)(7), and INA 245(c)(8).
For example, a foreign national admitted under the Visa Waiver Program who overstays the admission is barred by both ​INA 245(c)(2)​ and ​INA 245(c)(4)​. Because some bars overlap, more than one bar can apply to an applicant for the same act or violation. In such cases, the officer should address each applicable adjustment bar in the denial notice.​

2. Exemptions from the Bars​
[100]
See Chapter 8, Inapplicability of Bars to Adjustment [7 USCIS-PM B.8].

Congress has provided relief from particular adjustment bars to certain categories of immigrants such as VAWA-based adjustment applicants, immediate relatives, and designated special immigrants. ​

Furthermore, ​INA 245(k)​ exempts eligible applicants under the employment-based 1st, 2nd, 3rd and certain 4th preference​
[101]
This applies to religious workers only.
categories from the ​INA 245(c)(2)​, ​INA 245(c)(7)​, and ​INA 245(c)(8)​ bars. Specifically, an eligible employment-based adjustment applicant may qualify for this exemption if the applicant failed to maintain a lawful status, engaged in unauthorized employment, or violated the terms of his or her nonimmigrant status (admission under a nonimmigrant visa) for 180 days or less since his or her most recent lawful admission.​
[102]
Notwithstanding INA 245(c)(2), INA 245(c)(7), and INA 245(c)(8), the officer should treat a foreign national who meets the conditions set forth in INA 245(k) in the same manner as an applicant under INA 245(a).

Footnotes

1.

See Part A, General Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section B, Definition of Properly Filed [​7 USCIS-PM A.3(B)​].​

2.

See Part A, General Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [​7 USCIS-PM A.6(C)​].​

3.

See Part A, Adjustment of Status Policies and Procedures, Chapter 9, Legal Analysis and Appropriate Use of Discretion [​7 USCIS-PM A.9​].​

4.

As originally enacted, section 245(a) made adjustment available only to a foreign national who “was lawfully admitted . . . as a bona fide nonimmigrant and who is continuing to maintain that status.” See ​Immigration and Nationality Act of 1952, ​Pub. L. 82-414​, 66 Stat. 163, 217 (June 27, 1952). ​Admission as a bona fide nonimmigrant remained a requirement until 1960. See ​Pub. L. 86-648​ (July 14, 1960). ​Congress amended that threshold requirement several times. The 1960 amendment removed the requirement of admission as a bona fide nonimmigrant. ​

5.

See ​8 CFR 2​45.1(b)(3).​

6.

See Legacy Immigration and Naturalization Service (INS) General Counsel Opinion 94-28, 1994 WL 1753132 (“Congress enacted ​INA 245​ in such a manner that persons who entered the U.S. without inspection are ineligible to adjust”). ​See​ S. Rep. 86-1651, 1960 U.S.C.C.A.N. 3124, 3136 (“This legislation will not benefit the alien who has entered the United States in violation of the law”) and 3137 (“The wording of the amendments is such as not to grant eligibility for adjustment of status to alien crewmen and to aliens who entered the United States surreptitiously”). See ​Matter of Robles​, 15 I&N Dec. 734 (BIA 1976) (explaining that entry into the United States after intentionally evading inspection is a ground for deportation under (then) INA 241(a)(2)).​

7.

See ​INA 245(a)​.​

8.

See ​, which states that SIJ-based applicants are considered paroled into the United States for purposes of ​INA 245(a)​.​

9.

See ​INA 245(g)​, which holds that certain special immigrants, as defined under ​INA 101(a)(27)(k)​, are considered paroled into the United States for purposes of ​INA 245(a)​. ​

10.

See Delegation of Authority to the Commissioner of U.S. Customs and Border Protection, Department of Homeland Security (DHS) Delegation No. 7010.3.​

11.

See Section 5 of the Act of March 3, 1875, 18 Stat. 477. See Sections 6, 8, 10, and 11 of the Act of March 3, 1891, 26 Stat. 1084. See Sections 8, 12, 16, and 18 of the Act of February 20, 1907, 34 Stat. 898. See Sections 10, 15, and 16 of the Immigration Act of 1917, Pub. L. 301 (February 5, 1917).​

12.

See ​INA 231-235​ and ​INA 275​. See ​Matter of Robles​, 15 I&N Dec. 734 (BIA 1976) (holding that entry into the United States after intentionally evading inspection is a ground for deportation under (then) INA 241(a)(2)).​

13.

See ​8 CFR 235.1(a)​. ​See ​Matter of S-​, 9 I&N Dec. 599 (BIA 1962) (inspection is the process that determines an foreign national’s initial right to enter the United States upon presenting himself or herself for inspection at a port of entry). See ​Ex Parte ​Saadi​,​23 F.2d 334 (S.D. Cal. 1927)​.​

14.

See ​INA 235(d)​. See ​8 CFR 235.1(f)(1)​.​

15.

See​Matter of ​Areguillin​,​17 I&N Dec. 308 (BIA 1980), and ​Matter of ​Quilantan​, ​25 I&N Dec. 285 (BIA 2010), which held that a foreign national who had physically presented himself or herself for questioning and made no knowing false claim of citizenship had satisfied the inspected and admitted requirement of ​INA 245(a)​; alternatively, a foreign national who gains admission to the U.S. upon a knowing false claim to U.S. citizenship cannot be deemed to have been inspected and admitted. See ​Matter of Pinzon​, ​26 I&N Dec. 189 (BIA 2013)​.​

16.

See ​Reid v. INS​, 420 U.S. 619, 624 (1975) (a foreign national who enters the United States based on a false claim to U.S. citizenship is excludable under former INA 212(a)(19), or ​INA 212(a)(6)(C)​ today, and considered to have entered without inspection).​

17.

See ​INA 235(a)(4)​.​

18.

Deferred inspection is a form of parole. ​A foreign national who is deferred inspection is paroled into the United States for the period of time necessary to complete the inspection.​ See ​8 CFR 235.2​(c)​. For more information on deferred inspection, see Subsection 3, Parole [​7 USCIS-PM B.2(A)(3)​]. ​

19.

See ​INA 101(a)(13)(A)​.​ The ​Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) amended the statute by changing the concept of “entry” to “admission” and “admitted.” See​Section 301(a) of IIRIRA, Division C of ​Pub. L. 104-208​, 110 Stat. 3009, 3009-575 (September 30, 1996). ​INA 101(a)(13)(B)​ clarifies that parole is not admission.​

20.

See ​INA 101(a)(13)(A)​ (“​The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”). Legislative history does not elaborate on the meaning of “lawful.”​

21.

See ​8 CFR 235.1(f)(1)​. ​

22.

See ​Matter of ​Areguilin​, 17 I&N Dec. 308 (BIA 1980). See ​INA 291​ (burden of proof). See ​Emokah​ v. ​Mukasey​, 523 F.3d 110 (2nd Cir 2008). While it is an “admission,” procuring admission by fraud or willful misrepresentation is illegal and has several consequences. For example, the foreign national may be inadmissible and removable. See ​INA 212(a)(6)(C)​ and ​INA 237(a)(1)(A)​.​

23.

See ​Matter of ​Quilantan​, 25 I&N Dec. 289, 290 (BIA 2010). See ​Matter of ​Areguilin​, 17 I&N Dec. 308 (BIA 1980). See ​INA 245(a)​. The foreign national is not inadmissible as an illegal entrant under ​INA 212(a)(6)(A)(i)​. For more information on admissibility, see Volume 8, Admissibility [​8 USCIS-PM​]. ​

24.

See ​Matter of Pinzon​, ​26 I&N Dec. 189 (BIA 2013)​ (a foreign national who enters the United States by falsely claiming U.S. citizenship is not deemed to have been inspected by an immigration officer, so the entry is not an “admission” under ​INA 101(a)(13)(A)​).​

25.

See ​Reid v. INS​, 420 U.S. 619, 624 (1975). See ​Matter of S-​, 9 I&N Dec. 599 (BIA 1962). A foreign national who makes a false claim to U.S. citizenship is ​inadmissible for making the claim (​INA 212(a)(6)(C)(ii)​). The foreign national may also be inadmissible for presence without admission or parole (​INA 212(a)(6)(A)(i)​) and unlawful presence after previous immigration violations (​INA 212(a)(9)(C)​).​

26.

Such foreign nationals are ​inadmissible for presence without admission or parole and may be inadmissible for unlawful presence after previous immigration violations. See ​INA 212(a)(6)(A)(i)​ and ​INA 212(a)(9)(C)​.​

27.

See ​INA 212(a)(2)​. See ​INA 212(h)​ and ​INA 240A(a)​.​

28.

See ​INA 101(a)(13)(C)​. See generally ​Matter of​Collado​-Munoz​, 21 I&N Dec. 1061 (BIA 1997). The foreign national who enters by making a false claim to LPR status at a port of entry and who is permitted to enter is inadmissible for ​presence without admission or parole ​(​INA 212(a)(6)(A)(i)​) and fraud and misrepresentation (​INA 212(a)(6)(C)(i)​). The foreign national may also be inadmissible for unlawful presence after previous immigration violations. See ​INA 212(a)(9)(C)​.​

29.

This will typically be documented by an approved ​Form I-102​,​Application for Replacement/Initial Nonimmigrant Arrival-Departure Document.​

30.

CBP or USCIS can issue a Form I-94,​Arrival/Departure Record. If admitted to the United States by CBP​at an airport or seaport after​April 30, 2013, CBP may have issued an electronic Form I-94 to the applicant instead of a paper Form I-94.​To obtain a paper version of an electronic Form I-94, visit the ​CBP​W​eb site​. CBP​does not​cha​r​ge​a​fee​for this​service. Some travelers admitted to the United States at a land borde​r​, airport, or seaport, after​April 30, 2013, with a passport or travel document and who were issued a paper Form I-94 by CB​P​ may also be able to obtain a replacement Form I-94 from the CBP​W​eb site without cha​r​ge. Applicants may also obtain Form I-94 by filing​Form I-102​,​Application for Replacement/Initial Nonimmigrant​Arrival-Departure Record, with USCIS. USCIS cha​r​ges​a​fee​for this​service. ​

31.

Form DSP-150​ is issued by the Department of State.​

32.

See ​8 CFR 235.1(h)(1)(i)-(v)​.​

33.

See ​8 CFR 212.1(b)​.​

34.

See ​8 CFR ​212.1(c)​.​

35.

See Delegation to the Bureau of Citizenship and Immigration Services, DHS Delegation No. 0150.1; Delegation of Authority to the Assistant Secretary for U.S. Immigration and Customs Enforcement, DHS Delegation No. 7030.2; Delegation of Authority to the Commissioner of U.S. Customs and Border Protection, DHS Delegation No. 7010.3.​

36.

See ​INA 212(d)(5)(A)​.​

37.

See ​INA 101(a)(13)(B)​ and ​212(d)(5)(A)​. ​

38.

See ​8 CFR 235.2​.​

39.

CBP generally issues a Notice to Appear 30 days after a foreign national’s non-appearance for the deferred inspection, so an officer should review the relevant case and lookout systems for any entries related to CBP.​

40.

CBP generally ​creates​ either an A-file or T-file ​to document​ the deferred inspection.​

41.

See ​Legacy Immigration and Naturalization Service (INS) General Counsel Opinion ​94-28, 1994 WL 1753132 (whether deferred inspection constitutes parole for purposes of adjustment of status under ​INA 245​).​

42.

See ​INA 212(d)(5)​.​

43.

See ​INA 212(d)(5)​.​

44.

Only parole under ​INA 212(d)(5)(A)​ meets this requirement.​

45.

See ​INA 235(a)​. ​

46.

See Legacy INS General Counsel Opinion 98-10, 1998 WL 1806685. ​

47.

As with any immigration benefit request, eligibility for adjustment must exist when the application is filed and continue through adjudication. See ​8 CFR 103.2(b)(1)​. ​

48.

For example, parole does not erase any periods of prior unlawful status. Therefore, a foreign national who entered without inspection will remain ineligible for adjustment of status, even after a grant of parole, unless he or she is an immediate relative or falls within one of the other designated exceptions to ​INA 245(c)(2)​ or ​INA 245(c)(8)​.​

49.

See ​INA 245(c)(2)​. See Chapter 4, Status and Nonimmigrant Visa Violations – INA 245(c)(2) and INA 245(c)(8) [​7 USCIS-PM B.4​].​

50.

See ​INA 236(a)(2)(B)​. ​Neither the statute nor regulations deem a release on conditional parole equal to a parole under ​INA 212(d)(5)(A)​. Several circuits and the BIA have opined on this and rejected the argument that the two concepts are equivalent processes. ​See ​Ortega-Cervantes v. Gonzales​, 501 F.3d 1111 (9th Cir. 2007). See ​Matter of Castillo-Padilla​, 25 I&N Dec. 257 (BIA 2010). See ​Delgado-​Sobalvarro​ v. Atty. Gen​.​, 625 F.3d 782 (3rd Cir. 2010). See ​Cruz Miguel v. Holder​, 650 F.3d 189 (2nd Cir. 2011). ​

51.

See Form I-512 or I-512L, ​Authorization for Parole of an Alien into the United States.​

52.

See ​8 CFR 235.1(h)(2)​. If a foreign national was admitted to the United States by CBP at an airport or seaport after April 30, 2012, the foreign national may have been issued an electronic Form I-94 by CBP, instead of a paper Form I-94. For more information, see the ​CBP Web site​. ​

53.

See Consolidated Natural Resources Act of 2008, ​Pub. L. 110-229​ (May 8, 2008).​

54.

See ​INA 235(a)(1)​.​

55.

See ​INA 244​. See ​8 CFR 244​.​

56.

The 6th Circuit Court of Appeals has ruled that TPS status meets the inspected and admitted requirement for adjustment of status under ​INA 245​ even if a foreign national granted TPS status entered the United States without inspection. See ​Flores v. USCIS​, 718 F.3d 548 (6th​Cir. 2013). This decision is only binding on cases within the jurisdiction of the 6th Circuit: Kentucky, Michigan, Ohio, and Tennessee.​

57.

Under ​INA 245(a)​ or any other adjustment program.​

58.

See Legacy INS General Counsel Opinion 91-27, 1991 WL 1185138. See Legacy INS General Counsel Opinion 93-59 , 1993 WL 1504006. See ​Serrano v. U.S. Atty. Gen.​, 655 F.3d 1260 (11th Cir. 2011). ​

59.

See Section 304(c) of the Miscellaneous and Technical Immigration and Naturalization Amendments Act of 1991, ​Pub. L. 102-232​, 105 Stat. 1733, 1749 (December 12, 1991), amended in respects not relevant here by IIRIRA, Division C of ​Pub. L. 104-208​, 110 Stat. 3009, 3009-546 (September 30, 1996).​

60.

See ​8 CFR 209.2​. For more information on asylee adjustment, see ​Part M, Asylee Adjustment [​7 USCIS-PM M​].​

61.

Due to the different statutory bases, different eligibility requirements, exceptions, and waivers apply to applicants seeking adjustment based on their asylum status compared to those seeking adjustment under ​INA 245(a)​. ​

62.

The grant of asylum is not an admission contemplated under ​INA 101(a)(13)(A)​. See ​Matter of V-X-​,​ 26 I&N Dec. 147 (BIA 2013). See Legacy INS General Counsel Opinion, expressed by INS Central Office, Deputy Asst. Commissioner, Adjudications, R. Michael Miller, in letter dated September 4, 1986, reprinted in Interpreter Releases, Vol. 63, No. 40, October 10, 1986, pp. 891-892. ​

63.

See ​Matter of ​Quilantan​, 25 I&N Dec. 285, 291-92 (BIA 2010). See ​Matter of ​Areguillin​, 17 I&N Dec. 308 (BIA 1980). See ​8 CFR 103.2(b)​.​

64.

Any documentary evidence of admission should be consistent with entry information provided in the adjustment application or in oral testimony and should not contradict any other admission or departure evidence in DHS records. For example, when there is no Arrival/Departure Record or passport with an admission stamp, an officer may rely on information in DHS records, information in the applicant’s file, and the applicant’s testimony to make a determination on whether the applicant was inspected and admitted or inspected and paroled into the United States. ​

65.

See ​8 CFR 103.2(b)​. See Part A, Adjustment of Status Policies and Procedures, Chapter 9, Legal Analysis and Appropriate Use of Discretion [​7 USCIS-PM A.9​].​

66.

For more information, see Subsection 2, Admission [​7 USCIS-PM B.2(A)(2)​].​

67.

See ​8 CFR 103.2(a)​ and ​8 CFR 103.2(b)​. See ​8 CFR 103.2(a)(2)​. See ​8 CFR 103.7(b)​ and ​8 CFR 103.7(c)​. The applicant may submit a fee waiver request. See ​Form I-912​, Request for Fee Waiver.​

68.

See ​8 CFR 103.2(a)(7)​ and ​8 CFR 245.2(a)(2)(i)​. In addition, ​USCIS should process a fee refund when an adjustment application is accepted in error because a visa was unavailable at the time of filing and the error is recognized before interview or adjudication. For more information on the definition of “properly filed” and fee refunds, see Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions​ [​7 USCIS-PM A.3​].​

69.

See ​INA 201(b)​. Immediate relatives of a U.S. citizen include the U.S. citizen’s spouse, children (unmarried and under 21 years of age), and parents (if the U.S. citizen is 21 years of age or older). Widow(​er​)s of U.S. citizens and foreign nationals admitted to the United States as a fiancé(e) or child of a fiancé(e) of a U.S. citizen may also be considered immediate relatives if they meet certain conditions.​

70.

Diversity visas do not rely on a USCIS-filed petition to obtain a visa. The diversity visa lottery is conducted by the Department of State.​

71.

See ​8 CFR 103.2(b)(1)​.​

72.

See Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions​, Section C, Concurrent Filings​ [​7 USCIS-PM A.3(C)​]. ​

73.

See Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section B, Definition of “Properly Filed,” Subsection 4, Visa Availability Requirement [​7 USCIS-PM A.3(B)(4)​] and Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [​7 USCIS-PM A.6(C)​].​

74.

See ​INA 245(a)(3)​. See ​8 CFR 245.1(g)(1)​, ​8 CFR 245.2(a)(5)(ii)​, and ​8 CFR 103.2(b)(1)​. ​For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [​7 USCIS-PM A.6(C)​].​

75.

If one or more of the grounds listed in ​INA 212​ applies to an applicant then the applicant may be inadmissible. For more information, see Volume 8, Admissibility [​8 USCIS-PM​] and Volume 9, Waivers [​9 USCIS-PM​].​

76.

See Volume 9, Waivers [​9 USCIS-PM​].​

77.

See ​INA 245(c)​.​

78.

Even if foreign nationals are barred from adjusting under ​INA 245(a)​, they may still adjust under another statutory basis as long as they meet the applicable eligibility requirements.​

79.

An immigrant category may exempt an applicant or make an applicant eligible for a waiver of certain adjustment bars and grounds of inadmissibility. Even if an exemption applies to an applicant who would otherwise ​

be barred from adjustment of status, the applicant may still be denied adjustment as a matter of discretion. For more information on discretion, see Part A, Adjustment of Status Policies and Procedures, Chapter 9, Legal Analysis and Appropriate Use of Discretion [​7 USCIS-PM A.9​].​

80.

It is service as a crewman that triggers the bar to adjustment, not the actual nonimmigrant status. This bar applies if the foreign national was actually permitted to land under the D-1 or D-2 visa category. The bar also applies if the foreign national was a crewman admitted as a C-1 to join a crew, or as a B-2 if serving on a crew.​

81.

This does not apply to foreign nationals who failed to maintain lawful status through no fault of their own or solely for technical reasons, as defined in ​8 CFR 245.1(d)(2)​. ​

82.

The ​INA 245(c)(2)​ bar addresses three distinct types of immigration violations. ​

83.

See ​8 CFR 245.1(d)(3)​.​

84.

See ​INA 201(b)​. Immediate relatives of a U.S. citizen include the U.S. citizen’s spouse, children (unmarried and under 21 years of age), and parents (if the U.S. citizen is 21 years of age or older). Widow(​er​)s of U.S. citizens and foreign nationals admitted to the United States as a fiancé(e) or child of a fiancé(e) of a U.S. citizen may also be considered immediate relatives if they meet certain conditions. ​

85.

See special immigrants described in ​INA 101(a)(27)(H)-(K)​. ​

86.

If an adjustment applicant is eligible for the 245(k) exemption, then he or she is exempted from the ​INA 245(c)(2)​ bar to adjustment. See Chapter 8, ​Inapplicability of​ Bars to Adjustment, Section E, Employment-Based Exemption under INA 245(k) [​7 USCIS-PM B.8(E)​].​

87.

See ​INA 212(l)​ and ​INA 217​.​

88.

See ​INA 101(a)(15)(S)​and ​INA 245(j)​.​ The applicants are beneficiaries of a request by a law enforcement agency to adjust status (​Form I-854​, Inter-Agency Alien Witness and Informant Record).​

89.

See ​INA 237(a)(4)(B)​. ​

90.

Although VAWA-based applicants are exempt from all ​INA 245(c)​ bars per statute, a VAWA-based applicant may still be determined to be removable (​INA 237(a)(4)(B)​) or inadmissible (​INA 212(a)(3)​) due to egregious public safety risk and on security and related grounds. ​

91.

INA 245(c)(7)​ does not apply to VAWA-based applicants, immediate relatives, family-based applicants, or special immigrant juveniles because these foreign nationals are not seeking adjustment as employment-based applicants. See ​8 CFR 245.1(b)(9)​. ​

92.

If an employment-based adjustment applicant is eligible for the ​INA 245(k)​ exemption, then he or she is exempted from the ​INA 245(c)(7)​ bar to adjustment. See Chapter 8, ​Inapplicability of​ Bars to Adjustment, Section E, Employment-Based Exemption under INA 245(k) [​7 USCIS-PM B.8(E)​].​

93.

This is also referred to as a foreign national who has violated the terms of his or her nonimmigrant status. ​

94.

There are no time restrictions on when such a violation must have occurred while physically present in the United States. Violations either before or after the filing of ​Form I-485​ will render a foreign national ineligible to adjust status under ​INA 245(a)​. An alien seeking employment during the pendency of his or her adjustment applicant must fully comply with the requirements of ​INA 274A​ and ​8 CFR 274a​. See ​62 FR 39417​ (July 23, 1997).​

95.

The ​INA 245(c)(8)​ bar addresses two distinct types of immigration violations. ​

96.

See ​8 CFR 245.1(d)(3)​.​

97.

USCIS interprets the exemption listed in ​INA 245(c)(2)​ for immediate relatives and certain special immigrants as applying to the ​245(c)(8)​ bar in addition to the ​245(c)(2)​ bar. See ​62 FR 39417​ (July 23, 1997).​

98.

If an adjustment applicant is eligible for the 245(k) exemption, then he or she is exempted from the ​INA 245(c)(8)​ bar to adjustment. See Chapter 8, ​Inapplicability of​ Bars to Adjustment, Section E, Employment-Based Exemption under INA 245(k) [​7 USCIS-PM B.8(E)​].​

99.

See ​INA 245(c)(2)​, ​INA 245(c)(7)​, and ​INA 245(c)(8)​.​

100.

See Chapter 8, ​Inapplicability of​ Bars to Adjustment [​7 USCIS-PM B.8​].​

101.

This applies to r​eligious ​w​orkers only.​

102.

Notwithstanding ​INA 245(c)(2)​, ​INA 245(c)(7)​, and ​INA 245(c)(8)​, the ​officer​ should treat a foreign national who meets the conditions set forth in ​INA ​245(k)​ in the same manner as an applicant under ​INA ​245(a)​. ​

Updates

POLICY ALERT – Adjustment of Status Policies and Procedures and 245(a) Adjustment

February 25, 2016

​U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance addressing the general policies and procedures of adjustment of status as well as adjustment under section 245(a) of the Immigration and Nationality Act (INA).

Posted in Adjustment of Status, USCIS Policy Manual | Leave a comment

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

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

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

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

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


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

ID 3884 (PDF)

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


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

ID 3883 (PDF)

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

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


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

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


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

ID 3881 (PDF)

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


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

ID 3880 (PDF)

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

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


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

ID 3879 (PDF)

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

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

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


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

ID 3878 (PDF)

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


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

ID 3877 (PDF)

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

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


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

ID 3876 (PDF)

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


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

ID 3875 (PDF)

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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


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

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


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

ID 3858 (PDF)

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

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

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


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

ID 3857 (PDF)

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

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


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

ID 3856 (PDF)

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


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

ID 3855 (PDF)

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


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

ID 3854 (PDF)

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


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

ID 3853 (PDF)

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

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


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

ID 3852 (PDF)

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


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

ID 3851 (PDF)

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

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


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

ID 3850 (PDF)

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

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


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

ID 3849 (PDF)

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

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


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

ID 3848 (PDF)

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

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


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

ID 3847 (PDF)

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

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

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


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

ID 3846 (PDF)

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

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


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

ID 3845 (PDF)

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


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

ID 3844 (PDF)

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


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

ID 3843 (PDF)

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


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

ID 3842 (PDF)

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


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

ID 3841 (PDF)

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


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

ID 3840 (PDF)

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


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

ID 3839 (PDF)

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


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

ID 3838 (PDF)

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

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


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

ID 3837 (PDF)

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


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

ID 3836 (PDF)

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


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

ID 3835 (PDF)

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


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

ID 3834 (PDF)

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


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

ID 3833 (PDF)

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


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

ID 3832 (PDF)

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

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


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

ID 3831 (PDF)

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

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


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

ID 3830 (PDF)

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

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


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

ID 3829 (PDF)

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


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

ID 3828 (PDF)

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

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


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

ID 3827 (PDF)

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


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

ID 3826 (PDF)

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


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

ID 3825 (PDF)

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

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


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

ID 3824 (PDF)

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

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


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

ID 3823 (PDF)

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


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

ID 3822 (PDF)

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


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

ID 3821 (PDF)

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


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

ID 3820 (PDF)

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


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

ID 3819 (PDF)

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


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

ID 3818 (PDF)

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


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

ID 3817 (PDF)

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


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

ID 3816 (PDF)

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


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

ID 3815 (PDF)

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


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

ID 3814 (PDF)

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


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

ID 3813 (PDF)

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


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

ID 3812 (PDF)

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


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

ID 3811 (PDF)

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


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

ID 3810 (PDF)

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

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


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

ID 3809 (PDF)

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


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

ID 3808 (PDF)

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

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


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

ID 3807 (PDF)

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

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

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


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

ID 3806 (PDF)

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


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

ID 3805 (PDF)

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


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

ID 3804 (PDF)

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


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

ID 3803 (PDF)

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


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

ID 3802 (PDF)

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


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

ID 3801 (PDF)

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

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


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

ID 3800 (PDF)

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


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

ID 3799 (PDF)

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


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

ID 3798 (PDF)

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


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

ID 3797 (PDF)

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

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

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


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

ID 3796 (PDF)

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

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

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

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

ID 3795 (PDF)

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

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

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


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

ID 3794 (PDF)

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

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

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

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


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

ID 3793 (PDF)

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


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

ID 3792 (PDF)

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

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

ID 3791 (PDF)

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

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


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

ID 3790 (PDF)

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


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

ID 3789 (PDF)

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

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


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

ID 3788 (PDF)

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

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


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

ID 3787 (PDF)

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


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

ID 3786 (PDF)

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


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

ID 3785 (PDF)

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

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

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


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

ID 3784 (PDF)

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

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

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


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

ID 3783 (PDF)

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


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

ID 3782 (PDF)

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


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

ID 3781 (PDF)

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


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

ID 3780 (PDF)

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


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

ID 3779 (PDF)

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

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


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

ID 3778 (PDF)

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


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

ID 3777 (PDF)

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


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

ID 3776 (PDF)

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

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

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


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

ID 3775 (PDF)

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


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

ID 3774 (PDF)

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


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

ID 3773 (PDF)

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


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

ID 3772 (PDF)

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


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

ID 3771 (PDF)

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


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

ID 3770 (PDF)

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

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


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

ID 3769 (PDF)

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

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

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


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

ID 3768 (PDF)

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


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

ID 3767 (PDF)

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


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

ID 3766 (PDF)

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

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



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

Posted in 26 I&N Dec. 415 (BIA 2014), BIA, BIA Precedent Decisions, BIA Precedent Decisions Volume 26, Board of Immigration Appeals, Executive Office for Immigration Review | Tagged | Leave a comment

CA7 upholds IJ’s denial of asylum and withholding of removal relief for 58‐year‐old citizen of El Salvador

Record contained sufficient evidence to support IJ’s denial of alien’s applications for asylum and withholding of removal relief, even though alien claimed that he had fear of future persecution if forced to return to El Salvador because certain gangs would kidnap or extort him due to their perception that as long-term resident in U.S. he had money to satisfy their demands. Alien conceded that no one in El Salvador had ever threatened him or his family and denied that he had any fear that he would be harmed by El Salvador govt. itself. As such, alien failed to show that he was likely target of violence so as to support his applications for relief.

Rivera, a 58‐year‐old citizen of El Salvador, has resided unlawfully in the U.S. for 35 years, having immigrated illegally. In 2014, having fought off a previous deportation effort, Rivera was convicted of possessing a “forged instrument” and the government reopened removal proceedings. An immigration judge denied Rivera’s requests for asylum, withholding of removal, or relief under the Convention Against Torture, rejecting Rivera’s claim of fear that gangs in El Salvador would seek to kidnap or extort him because they would perceive him as wealthy, based on his long residence in the United States. Rivera conceded that nobody in El Salvador had ever threatened him or his family and expressed uncertainty about whether the Salvadoran government would be able to protect him from gangs. He denied any fear that he would be harmed by the government itself. The IJ noted that the State Department’s “country condition” reports on El Salvador “do not show that street gangs have specifically targeted El Salvadoran citizens returning from the United States because of their perceived wealth.” The Board of Immigration Appeals and Seventh Circuit affirmed. Rivera did not present convincing evidence that he was in any danger.

Rivera v. Lynch, No. 16-3225 (7th Cir. 2017)
Federal 7th Circuit Court
Case Number: No. 16-3225
Decision Date: January 12, 2017
Federal District: Petition for Review, Order of Bd. of Immigration Appeals
Holding: Petition denied
__________________________________________________
JOSE ALBERTO RIVERA, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.

No. 16-3225.
United States Court of Appeals, Seventh Circuit.

Submitted December 21, 2016.
Decided January 12, 2017.
Daniel Shieh, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals, No. A092-513-383.

Before WOOD, Chief Judge, and POSNER and FLAUM, Circuit Judges.

POSNER, Circuit Judge.

Jose Alberto Rivera, a 58-year-old citizen of El Salvador who has resided unlawfully in the United States for the last 35 years because he immigrated illegally and has never adjusted his status to that of a citizen or lawful permanent resident, petitions us for review of an order of the Board of Immigration Appeals upholding an immigration judge’s denial to Rivera of asylum, withholding of removal, or relief under the Convention Against Torture, and affirming the immigration judge’s issuance of an order removing (deporting) Rivera from the United States to El Salvador.

In 2014, after having fought off a previous attempt by the government to deport him, Rivera had been convicted of possessing a “forged instrument” and the government had reopened removal proceedings. He responded, as noted in the preceding paragraph, basing his response on his fear that gangs in El Salvador would seek to kidnap or extort him because they would perceive him as wealthy, owing to his long residence in the United States.

He told the immigration judge that the gangs “do not care about anything” and “always” harm innocent civilians, whether they have money or not. Yet he conceded that no-body in El Salvador had ever threatened him or his family, while recounting the experience of an unidentified Salvadoran national with whom he had been detained who told Rivera of having been removed to El Salvador, where members of the MS-13 gang had “threatened” him after he rebuffed their attempts to recruit him to traffic drugs. Yet no harm had befallen him. Rivera also testified that about five years ago his sister, who has lived in the United States since the 1970s, visited El Salvador for a few days—without incident. And although he expressed uncertainty about whether the Salvadoran government would be able to protect him from the gangs, he denied any fear that he would be harmed by the government itself.

The immigration judge noted that the State Department’s “country condition” reports on El Salvador “do not show that street gangs have specifically targeted El Salvadoran citizens returning from the United States because of their perceived wealth,” and noted (essentially repeating Rivera’s statement) that nobody in El Salvador had ever threatened him or his family and that there was no reason to think that the Salvadoran government would torture him or acquiesce in his being tortured by nongovernment actors. And remember that his sister and the unidentified Salvadorian detainee, each of whom had visited El Salvador after living in the United States, had incurred no harm there.

The Board of Immigration Appeals agreed with the Immigration Judge’s assessment of Rivera’s claims, which were weak. Really all he argued was that as a long-time resident of the United States he would be perceived in El Salvador as wealthy. That may be correct, and we are dubious (see the concurring opinion in Gutierrez v. Lynch, 834 F.3d 800, 807 (7th Cir. 2016)) of the proposition announced in some cases that

the status of being a member of a group made up of individuals deported from the United States who, having lived in this country for many years, either have money or are believed to have money and have long-established ties to this country, and who for any of these reasons might be able to pay ransom, nevertheless can’t be deemed members of a “social group” authorized to obtain relief from deportation because of threats to the life or safety of the group’s members.
But when this is the claim the petitioner must submit evidence supporting it, as the probability that any given member of such a group would be held for ransom might be exceedingly low.

Although the majority opinion in Gutierrez rejected the petitioner’s argument that he was in danger of persecution because he belonged to a social group consisting of “Mexican nationals who have lived in the U.S. for many years and are perceived as wealthy upon returning to Mexico,” 834 F.3d at 805, Gutierrez like Rivera had not presented convincing evidence that he was in any such danger—and furthermore the Immigration Court had found that if he was in danger of persecution if he returned to the part of Mexico in which he had lived before immigrating to the United States “he could avoid [the] harm by relocating to another part of Mexico.” Id.

Dominguez-Pulido v. Lynch, 821 F.3d 837 (7th Cir. 2016), was a similar case. The petitioner feared persecution if returned to his country of origin because he could afford to pay a ransom, or at least his captors would believe that he (or his relatives in the United States) could afford to pay a ransom. But our opinion does not indicate that he had any reason to believe that anyone would force him to pay a ransom. So he lost, as did Gutierrez and as must Rivera as well.

The point, which is equally applicable to the present case, is that members of well-to-do coteries or established expatriate families are not, so far as the record of this case reveals, frequent targets of violence in El Salvador. And unlike applicants for relief in cases such as Arrazabal v. Lynch, 822 F.3d 961 (7th Cir. 2016), Rivera failed to present any evidence that he is a likely target of violence, despite the likelihood of his being thought wealthy (though by whom is not indicated) by virtue of his long residence in the United States.

A disturbing feature of the case, however, is the very high crime rate in El Salvador. See, e.g., Roque Planas, “How El Salvador Became the World’s Most Violent Peacetime Country,” WorldPost, March 4, 2016, www.huffingtonpost.com/ entry/el-salvador-most-violent-country_us_56d9e239e4b0000 de4047fbe. (Actually Honduras is believed to have the highest homicide rate in the world—90.4 homicides per 100,000 people; the international average is 6.2 homicides per 100,000 people. U.N. Office on Drugs and Crime, Global Study on Homicide 2013, pp. 12, 24 fig. 1.5, www.unodc.org/ documents/gsh/pdfs/2014_GLOBAL_HOMICIDE_BOOK_ web.pdf.) But Rivera has not presented convincing evidence of how safe or unsafe he will be in El Salvador.

We note finally, for its possible relevance in future cases, that what doesn’t matter in the case of an illegal immigrant resisting removal because of fear of persecution is whether gangs in El Salvador, or whatever the immigrant’s country of origin is, are wrong in thinking that anybody who’s lived in the United States is likely to be wealthy or have wealthy American connections. If that’s what the gangs think, and if (a big if, which requires evidence) as a result they hold deportees from the U.S. for ransom and kill them if it isn’t paid, those deportees are being subjected to persecution. We don’t think either a court or the immigration agencies could rationally deny that. But it isn’t this case.

AFFIRMED.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Asylum, BIA, El Salvador, withholding of removal | Leave a comment

CA7 affirms IJ removal order for voting twice in federal election in violation of federal law

IJ did not err in entering removal order for alien (native of Peru) who violated 8 USC section 1227(a)(6) by voting in federal election in violation of federal law. Fact that alien had otherwise unblemished record in U.S., was married to U.S. citizen and had three U.S.-citizen children did not require different result. Ct. rejected alien’s argument that driver’s license official, who assisted alien in registering to vote when alien applied for driver’s license, gave alien “official approval” to vote in federal election, where alien lied on driver’s license application by stating she was U.S. citizen.

Fitzpatrick, a citizen of Peru, had lived in the U.S. for three years when she applied for an Illinois driver’s license; she displayed her green card and her Peruvian passport, but checked a box claiming to be a U.S. citizen. As required by the motor-voter law, 52 U.S.C. 20503–06, the form contained a checkbox for registration as a voter. Fitzpatrick maintains that the clerk asked whether she wanted to register. She inquired “Am I supposed to?”; he replied: “It’s up to you.” She checked that box, was registered, and in 2006 twice voted in federal elections, violating 18 U.S.C. 611; 8 U.S.C. 1227(a)(6), provides for the removal of aliens who vote in violation of the law. On her application for citizenship, Fitzpatrick, who is married to a U.S. citizen, and has three U.S.-citizen (naturalized) children, honestly described her voting history. The BIA affirmed an order of removal. The Seventh Circuit denied relief, rejecting an “entrapment by estoppel” defense. Fitzpatrick did not make accurate disclosures when applying. She is literate in English and has no excuse for that misrepresentation. No one told her that aliens are entitled to vote or to register to vote. Fitzpatrick had time after receiving her voter-registration card to determine whether she was entitled to vote.

Fitzpatrick v. Sessions
Case Number: Nos. 15-2204 & 16-1864 Cons.
Decision Date: February 13, 2017
Federal District: Petition for Review, Order of Bd. of Immigration Appeals
Holding: Petition denied

______________________________
MARGARITA DEL PILAR FITZPATRICK, Petitioner,
v.
JEFF SESSIONS, Attorney General of the United States, Respondent.
Nos. 15-2204, 16-1864.

United States Court of Appeals, Seventh Circuit.
Argued January 17, 2017.
Decided February 13, 2017.

Richard Hanus, for Petitioner.

Jennifer R. Khouri, for Respondent.

Laura Halliday Hickein, for Respondent.

Tim Ramnitz, for Respondent.

Petitions for Review of Orders of the Board of Immigration Appeals, No. A097 846 616.

Before EASTERBROOK, WILLIAMS, and SYKES, Circuit Judges.

EASTERBROOK, Circuit Judge.

Margarita Del Pilar Fitzpatrick, a citizen of Peru, had lived in the United States for three years when she applied for a driver’s license in Illinois. She contends that when filling out the forms at the Department of Motor Vehicles she displayed her green card and her Peruvian passport—but she admits that she also checked a box claiming to be a citizen of the United States. The form sternly warns aliens not to check that box, and Fitzpatrick does not contend that she has any difficulty understanding written English. (She came to the United States in 2002 to study English in college, and after earning a certificate as a medical translator she spent some time working as an interpreter before training as a nurse.) As required by the motor-voter law, 52 U.S.C. §§ 20503-06, the form also contained a checkbox that would lead to registration as a voter. Fitzpatrick maintains that the desk clerk asked whether she wanted to register, and when she inquired “Am I supposed to?” he replied: “It’s up to you.” She checked that box, was duly registered, and in 2006 twice voted in elections for federal officials.

Aliens are forbidden to vote in federal elections. 18 U.S.C. §611. Another statute, 8 U.S.C. §1227(a)(6), provides for the removal of aliens who vote in violation of either state or federal law. After discovering that Fitzpatrick had voted in a federal election, the Department of Homeland Security initiated removal proceedings. An Immigration Judge and then the Board of Immigration Appeals (initially and when denying reconsideration) decided that she must indeed leave the United States, even though she has led a productive and otherwise-unblemished life in this country, is married to a U.S. citizen, and has three U.S.—citizen children. Her children were born in Peru and naturalized after arrival. Her own 2007 application for citizenship is what brought her 2006 voting to light, when response to questions asked of all applicants she honestly described her voting history.

Fitzpatrick acknowledges that she voted in apparent violation of §611, which does not require proof that the alien knew that only citizens can vote in federal elections. See Kimani v. Holder, 695 F.3d 666 (7th Cir. 2012). Nonetheless, she contends, she did not actually violate §611, because she had official approval to act as she did. Her lawyer calls this the “entrapment by estoppel” defense; we suggested in Keathley v. Holder, 696 F.3d 644 (7th Cir. 2012), that a better label would be “official authorization.” But names don’t matter.

The defense is available to someone who makes complete and accurate representations to a public official and then receives permission from that official, when acting within the scope of his or her authority. (We observed in Keathley that a high school principal can’t permit aliens to vote, but that voting officials may have at least apparent authority to do so.) Fitzpatrick cannot make out either ingredient of this defense.

First, she did not make accurate disclosures when applying. She checked the box claiming U.S. citizenship. She is literate in English and has no excuse for making that misrepresentation. As we observed in Kimani, statements such as “I didn’t read the form carefully” or “I didn’t think this through before acting” or “I didn’t understand the legal significance of what I was doing” may be explanations, but they are not excuses.

Second, no one told her that aliens are entitled to vote. Indeed, no one told her that aliens are entitled to register to vote. A clerk asked whether she wanted to register and added “It’s up to you.” That statement—apparently following a script that Illinois then required clerical officials to use—was a refusal to give advice, not an assurance that it was lawful to register. Federal law forbids state officials to say anything that will discourage an applicant for a driver’s license from registering to vote. 52 U.S.C. §20506(a)(5)(C). This statute leads to unhelpful responses such as the one Fitzpatrick received. What happened to Fitzpatrick and other aliens such as Keathley has led Illinois’s Secretary of State to revise the department’s Field Operations Manual to require clerks to remind applicants that citizenship is essential to voting, but the omission of that advice in 2005 still left Fitzpatrick with a noncommittal answer.

What’s more, even if the clerk had assured Fitzpatrick (as he did not) that she was entitled to register, that assurance differs from authorization to vote. Because different units of government have different requirements for voting, it may be proper for aliens to register even though they must take care not to vote in elections for certain offices. Fitzpatrick had time after receiving her voter-registration card to determine which elections she could participate in. Even a cursory search would have turned up the rule against an alien’s voting in a federal election—just as a cursory search would have revealed that a person registered in Illinois cannot vote for Governor of Indiana. Registration to vote simply does not imply authorization to vote in any election one chooses. Fitzpatrick is well educated and understands English; it is not too much to ask that she find out before voting whether an alien can cast a ballot in a federal election. States may deem it wise to inform all who register about the requirements for voting in particular elections, but failure to provide that advice does not amount to official authorization for aliens to vote in all elections.

The panel inquired at oral argument whether Fitzpatrick is the kind of person the Attorney General and the Department of Homeland Security want removed from the United States. The answer was yes—that consideration had been given to exercising prosecutorial discretion in Fitzpatrick’s favor, but that the possibility had been resolved adversely to her. That decision is entrusted to executive officials, leaving us no option other than to deny the petitions for review of the BIA’s decisions.

Posted in 18 U.S.C. 611; 8 U.S.C. 1227(a)(6), 7th Circuit, 7th Circuit Cases- Aliens, Removal of aliens who vote in violation, voting in federal election in violation | Leave a comment
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