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

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

Illinois Supreme Court holds that counsel was required to give Defendant only a general warning of possibility of immigration consequences

Defendant pled guilty to burglary and was sentenced to 3 years probation. At time of plea, Defendant was a citizen of Dominican Republic, and a resident alien of U.S. based on his marriage to a U.S. citizen. During plea hearing, judge advised him that a burglary conviction may have consequences of deportation, exclusion from admission to U.S., or denial of naturalization under laws of U.S. Defendant later filed motion to withdraw his guilty plea, alleging ineffective assistance of counsel and involuntariness. The immigration consequences of conviction were not “succinct, clear, and explicit”, so as to require a warning by counsel that deportation was presumptively mandatory. Thus, counsel was required to give Defendant only a general warning of possibility of immigration consequences. Defendant sufficiently alleged that his counsel’s performance was constitutionally deficient, as counsel gave him no advice about immigration consequences before entering his guilty plea. Court’s admonishments cured any prejudice, and thus court properly denied Defendant’s motion to withdraw guilty plea.(GARMAN, FREEMAN, THOMAS, KILBRIDE, KARMEIER, and THEIS, concurring.)

“Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward ***, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.” (Emphasis added.) Id. at 369.

People v. Valdez
Illinois Supreme Court 2016 IL 119860
September 22, 2016
District: 3d Dist
Holding: Appellate court reversed; circuit court affirmed.

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Posted in Guilty Pleas, Immigration Consequences of Criminal Convictions, ineffective assistance of counsel | Leave a comment

CA7 upholds IJ denial of continuance to challenge marriage fraud finding and denial of adjustment of status

In 2009, the United States Citizenship and Immigration Services (USCIS) determined that Cadavedo, a native of the Philippines, had engaged in marriage fraud. During an interview, Cadavedo’s wife had admitted that Cadavedo had promised to pay her to marry him for immigration purposes. She gave a sworn statement to USCIS and withdrew her I-130 petition to adjust his status. That USCIS finding bars him from obtaining adjustment of his status to become a lawful permanent resident, 8 U.S.C. 1154(c). Cadavedo received a notice to appear, charging him as removable, in 2012. In 2014, an immigration judge denied Cadavedo’s request for a continuance to allow him to challenge the USCIS finding. The Board of Immigration Appeals affirmed. The Seventh Circuit denied relief. Cadavedo made his request during the hearing he sought to have continued, and his entitlement to the belated relief he wanted to seek from USCIS is speculative at best.

IJ did not err in denying alien’s request to continue hearing on his application to adjust his status to become lawful permanent resident (and thus avoid removal), where alien sought said continuance in order to challenge 2009 finding by USCIS that alien had engaged in marriage fraud. Alien’s visa petition was not prima facie approvable given prior finding of marriage fraud, and alien conceded that likelihood that USCIS would agree to entertain appeal more than 6 years late was “nil.” Also, alien failed to demonstrate that he took any action to contest fraud bar prior to instant removal hearing. Moreover, IJ’s refusal to hold contested hearing on fraud finding did not deprive alien of any due process right, where alien had no protected liberty interest in obtaining discretionary adjustment of status that would have prevented him from removal.

_________________________________

IVAN MENDOZA CADAVEDO, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 15-1914.

United States Court of Appeals, Seventh Circuit.
Argued May 24, 2016.
Decided August 31, 2016.

Rosanne M. Perry, for Respondent.

OIL, for Respondent.

Timothy A. Gambacorta, for Petitioner.

Claire Workman, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals, No. A089 506 066.

Before ROVNER, SYKES, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Ivan Mendoza Cadavedo, a native of the Philippines, petitions for review of a Board of Immigration Appeals decision that affirmed an immigration judge’s denial of his request for a continuance. At a 2014 hearing, an immigration judge denied Cadavedo’s request for a continuance to allow him to challenge a 2009 finding by United States Citizenship and Immigration Services (“USCIS”) that he had engaged in marriage fraud. That USCIS finding bars him from obtaining adjustment of his status to become a lawful permanent resident. We hold that there was no abuse of discretion in denying Cadavedo’s request for a continuance. Cadavedo made his request during the hearing he sought to have continued, and his entitlement to the belated relief he wanted to seek from USCIS is speculative at best.

I. Background

This case revolves around Cadavedo’s past and possible future attempts to adjust his immigration status to become a lawful permanent resident. Unauthorized immigrants who have an immigrant visa immediately available to them (among other requirements) may apply to have their status adjusted to that of lawful permanent resident. 8 U.S.C. § 1255(a). There are no numerical limits on visas for immediate relatives of United States citizens, including spouses, so a visa is immediately available to such an immigrant. 8 U.S.C. § 1151(b)(2)(A)(i). To obtain this benefit, a United States citizen may petition for recognition of her relative’s classification as an immigrant entitled to a visa. 8 U.S.C. § 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1). The immigrant may then apply for adjustment of status. See generally Matter of Hashmi, 24 I. & N. Dec. 785, 789-90 (BIA 2009) (describing process for adjustment of status). If an immigrant attempts to obtain adjustment of status through a sham marriage, however, no future petition on behalf of that immigrant may be approved. 8 U.S.C. § 1154(c); see also 8 C.F.R. § 204.2(a)(1)(ii).

In 2007, Cadavedo sought to adjust his status through his U.S. citizen wife. His wife filed an I-130 petition for recognition of Cadavedo as her spouse, and Cadavedo filed a corresponding I-485 petition to adjust his status to lawful permanent resident.

Immigration authorities interviewed the two to establish whether their marriage was bona fide. In her interview, Cadavedo’s wife admitted that Cadavedo had promised to pay her to marry him for immigration purposes. She gave a sworn statement to USCIS and withdrew her I-130 petition. USCIS denied Cadavedo’s I-485 petition to adjust his status. It notified Cadavedo that under 8 U.S.C. § 1154(c) it could not approve any future petitions on his behalf because he had entered into a marriage for the purpose of evading the immigration laws.[1]

In 2012, the Department of Homeland Security issued a Notice to Appear to Cadavedo. The Notice to Appear charged Cadavedo with removability based on overstaying his visa, 8 U.S.C. § 1227(a)(1)(B), working without authorization, § 1227(a)(1)(C)(i), and fraudulently attempting to adjust his status through a spousal preference, §§ 1182(a)(6)(C)(i), 1227(a)(1)(A). On May 16, 2013, Cadavedo appeared before an immigration judge and admitted all of the Attorney General’s factual allegations except for his marriage fraud, which he denied. The judge scheduled a hearing on the contested fraud charge for October 17, 2013.

In the fall of 2013, Cadavedo retained new counsel. Cadavedo’s new counsel sought to continue the October 17, 2013 hearing to develop his defense against the fraud charges of removability. The October 2013 federal government shutdown had the effect of granting a delay of several months, although the judge did not formally grant the continuance request.

On January 29, 2014, Cadavedo again appeared before the immigration judge. The Attorney General’s witness for the contested fraud charges did not appear for the hearing, so the Attorney General dropped that charge and proceeded on the other, uncontested grounds for removability. During the hearing, Cadavedo sought a continuance to give him an opportunity to bring a collateral challenge to USCIS’s fraud finding from 2009. Cadavedo told the judge he had a daughter who was in the process of naturalizing, and he said he wanted to seek adjustment of status through her.

The judge denied the request and ordered Cadavedo’s removal on the uncontested grounds for removability. Cadavedo appealed the denial of the continuance to the Board of Immigration Appeals. The Board affirmed the judge’s decision. It applied its precedent, Hashmi, 24 I. & N. Dec. at 790-92, and concluded that Cadavedo had failed to demonstrate good cause to continue his proceedings. The relief Cadavedo wanted to seek from USCIS was untimely, and his entitlement to receive it was speculative at best. The Board also found no deprivation of Cadavedo’s due process rights.

II. Analysis

A. Scope of Jurisdiction

We have jurisdiction to review Cadavedo’s final order of removal under 8 U.S.C. § 1252(a)(1). This includes jurisdiction to review whether the Board erred in affirming the immigration judge’s denial of a continuance along the way to reaching that final order. Calma v. Holder, 663 F.3d 868, 873 (7th Cir. 2011). Due to the limits on our jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(i), we have jurisdiction to review the denial of the motion to continue unless “the agency’s rationale for denying the procedural request also establishes the petitioner’s inability to prevail on the merits of his underlying claim” for adjustment of status. Calma, 663 F.3d at 876. Our jurisdiction extends to review of the denial of a continuance “that is sought for purposes of allowing another agency to complete its review.” Id. at 877. Cadavedo sought a continuance to ask another agency to reconsider its previous determination rather than to complete its review, but we are satisfied that we have jurisdiction to hear that claim.

B. Denial of Continuance

We review the Board’s and judge’s decision to deny a continuance for abuse of discretion. Calma, 663 F.3d at 870. We will not overturn the decision “unless it was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.” Id. at 878 (citation and internal quotation marks omitted). “Where, as here, the [Board] agrees with the [immigration judge’s] decision but supplements his reasoning, we review the [judge’s] decision as supplemented by the [Board].” Pawlowska v. Holder, 623 F.3d 1138, 1141 (7th Cir. 2010).

An immigration judge may grant a continuance “for good cause shown.” 8 C.F.R. § 1003.29. In evaluating whether the circumstances warrant a continuance to pursue an I-130 petition, the Board and judges presume that “discretion should be favorably exercised where a prima facie approvable visa petition and adjustment application have been submitted in the course of an ongoing removal hearing.” Hashmi, 24 I. & N. Dec. at 790. The “focus of the inquiry is the apparent ultimate likelihood of success on the adjustment application.” Id. And the Board and judges also consider: “(1) the DHS response to the motion; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of status; (4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors.” Id.

The Board and judge did not abuse their discretion here. Cadavedo’s visa petition was not “prima facie approvable” due to the USCIS finding in 2009 that Cadavedo had engaged in marriage fraud. See 8 U.S.C. § 1154(c); 8 C.F.R. § 204.2(a)(1)(ii). We agree with the Board and judge that Cadavedo’s “apparent ultimate likelihood of success on the adjustment application” was at best speculative due to the fraud bar. Hashmi, 24 I. & N. Dec. at 790.[2]

Nothing in the record indicates that Cadavedo had a solid case to overturn the fraud bar. In his brief, Cadavedo also acknowledges that the possibility that USCIS would agree to to entertain an appeal more than six years late was “nil.” The Board and judge did not abuse their discretion by denying Cadavedo’s continuance request on these grounds. See Souley v. Holder, 779 F.3d 720, 723 (7th Cir. 2015) (no abuse of discretion in denying motion to continue to allow petitioner’s wife to file second I-130 petition after first one was denied); Calma, 663 F.3d at 878 (“sound reason” existed for denying continuance when adjustment of status was speculative and, if successful, would occur far into the future).[3]

The judge also properly considered “the reason for the continuance and other procedural factors.” Hashmi, 24 I. & N. Dec. at 790. Cadavedo requested the continuance during a hearing and after he had received a de facto three-month continuance due to the 2013 government shutdown. Nothing in the record suggests that Cadavedo informed the Board or immigration judge of any action he took to contest the fraud bar and obtain an approved I-130 petition during his de facto three-month continuance. Nor is there any indication that he did so during the years between USCIS’s notification that it had imposed the fraud bar and the 2014 hearing before the immigration judge.

Cadavedo argues that the Board abused its discretion because it failed to consider the factors for granting a continuance the Ninth Circuit identified in Baires v. INS, 856 F.2d 89 (9th Cir. 1988). But the Board properly applied the factors from Hashmi, 24 I. & N. Dec. at 790. As we have repeatedly recognized, that was the correct legal standard for the Board to apply. See Adame v. Holder, 762 F.3d 667, 672-73 (7th Cir. 2014); Aimin Yang v. Holder, 760 F.3d 660, 666 (7th Cir. 2014); Calma, 663 F.3d at 872. The Board did not abuse its discretion here in affirming the immigration judge’s denial of the request for a continuance to seek speculative relief from USCIS’s fraud bar.[4]

C. Due Process

Cadavedo also argues that the immigration judge’s decision not to hold a contested hearing on the fraud charge of removability deprived him of his due process rights by preventing him from challenging the fraud finding in the immigration court. Cadavedo, of course, has a constitutional right to removal proceedings that satisfy the requirements of due process. See Reno v. Flores, 507 U.S. 292, 306 (1993). But Cadavedo does not have a due process right to seek relief from removal that is purely discretionary, such as adjustment of status, because he has no protected liberty interest in obtaining such relief. Hamdan v. Gonzales, 425 F.3d 1051, 1061 (7th Cir. 2005); see also Adame, 762 F.3d at 670. Cadavedo also has not demonstrated that the immigration judge’s refusal to let him challenge the fraud bar prejudiced him. See Souley, 779 F.3d at 724 (no due process problem because no prejudice from denial of continuance).

In any case, Cadavedo had sufficient process available to him to challenge the fraud bar. As the Attorney General points out, Cadavedo could have moved for reconsideration of USCIS’s denial of his petition for adjustment of status and challenged the bar that way. 8 C.F.R. § 103.5(a)(1)(i). Presumably, if Cadavedo could have demonstrated ineffective assistance of counsel in his original petition for adjustment of status, that could provide good reason for USCIS to reconsider its decision. If Cadavedo had taken steps to obtain an approved I-130 petition during his administrative proceedings, he could have asked immigration authorities to reconsider their denial of a continuance on the basis of that new information. 8 C.F.R. § 1003.2 (motion to reopen before Board); 8 C.F.R. § 1003.23 (motion to reopen before immigration judge); Matter of Coelho, 20 I. & N. Dec. 464, 471-72 (BIA 1992) (describing motion to remand to immigration judge). The immigration laws and regulations accorded Cadavedo sufficient process.

The petition for review of the Board’s decision is DENIED.

[1] Manny Aguja represented Cadavedo in his attempt to adjust his status, and Cadavedo worked for Aguja from 2004 to 2007. In 2012, attorney Aguja pled guilty to conspiracy to commit marriage fraud by participating in arranging fraudulent marriages for immigration purposes.

[2] At oral argument, Cadavedo’s counsel represented that Cadavedo has obtained an approved I-130 petition. Cadavedo’s briefing does not mention this and we have not received any written updates from Cadavedo. Absent information to the contrary, we assume USCIS continues to maintain its fraud bar against Cadavedo. In any case, we review the Board’s and immigration judge’s use of their discretion, so our review focuses on the information they had when making their decisions.

[3] Cadavedo asserts that the Board erred in identifying the daughter through whom he wished to have his status adjusted. The Board identified the daughter as the one who was in removal proceedings at the same time as Cadavedo, but he said he intended to seek adjustment of status through a daughter who he says is currently a legal permanent resident in the process of naturalizing. As the Attorney General acknowledges, the Board erred, but that error was harmless: Cadavedo did not claim that his daughter had been naturalized, only that she was applying for it, and the fraud bar would prevent Cadavedo from adjusting his status through any relative. See Calma, 663 F.3d at 878 (harmless error analysis applies).

[4] To whatever extent Cadavedo seeks review of the Board’s decision to deny him administrative closure, the Board did not abuse its discretion in denying that request for the same reasons stated in this section. See Vahora v. Holder, 626 F.3d 907, 919 (7th Cir. 2010) (court of appeals has jurisdiction to review denial of administrative closure for abuse of discretion).

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Adjustment of Status, Marriage Fraud, Motion for Continuance | Leave a comment

CA7 finds BIA sua sponte remand did not reopen request for 212(c) relief but upholds deferral of removal under CAT for Iraq national

Turkhan, born in 1960 in Iraq, entered the U.S. in 1979, eventually becoming a legal permanent resident. He is an Assyrian Christian, has not left the U.S. since 1979, is married to a U.S. citizen, and is the father of children, ages 10 and 19. In 1990, he pleaded guilty to cocaine charges. In prison, he obtained his G.E.D., became a nursing assistant, worked as a mental-health companion, and received a letter of commendation. In 1994, an IJ found him deportable. Existing law allowed waiver of deportation for certain excludable legal permanent residents (Section 212(c)). At the hearing, Turkhan attempted to have relatives testify; although arrangements were to have been made, no interpreter was provided. The IJ found Turkhan statutorily eligible but denied relief. The BIA affirmed and, in 1997, declined to reconsider, citing the 1996 Antiterrorism and Effective Death Penalty and Illegal Immigration Reform and Immigrant Responsibility Acts. The Seventh Circuit denied habeas relief. In 2001, the Justice Department issued regulations for reopening section 212 cases. The Supreme Court held that persons rendered removable by guilty pleas entered before AEDPA may obtain relief. The BIA denied Turkhan’s renewed motions twice. In 2006, he additionally sought withholding of removal under the Convention Against Torture. The BIA remanded for consideration of “changed country conditions in Iraq.” An IJ found Turkhan ineligible for section 212(c) relief but granted CAT deferral of removal. The BIA affirmed. The decision did not restore Turkhan’s lawful permanent resident status nor abrogate the deportation order. The Seventh Circuit affirmed, rejecting arguments concerning the scope of the BIA remand and that Turkhan’s right to procedural due process was violated. The court was “mystified by the government’s decision … [but] the decision is not ours to make.”

After alien was found to be deportable based on his aggravated felony conviction, and after alien had unsuccessfully moved for relief under section 212(c), Bd. sua sponte remanded matter back to IJ for new determination on alien’s claim for withholding of removal under CAT based on changed condition on Iraq. On remand, IJ rejected alien’s contention that instant remand reopened his alternative request for relief under section 212(c), since remand order did not restore alien to his prior lawful permanent resident status that would allow alien to seek section 212(c) relief. Moreover, Bd. affirmed IJ’s ultimate decision that found alien ineligible for section 212(c) relief, but granted deferral of removal under CAT. Ct. rejected alien’s argument that Bd. committed legal error in finding that its own remand order did not reopen his section 212(c) claim, and there was no legal basis for forcing Bd. to reopen its original denial of alien’s request for section 212(c) relief. Also, Ct. rejected alien’s contention that certain actions taken at his section 212(c) hearing violated his due process rights, since his section 212(c) waiver request was discretionary benefit that was not subject to due process clause.

______________________________________________

SHMAEL ISAAC TURKHAN, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
Nos. 14-3456, 15-1378.

United States Court of Appeals, Seventh Circuit.
Argued April 5, 2016.
Decided September 9, 2016.

Royal F. Berg, for Petitioner.

OIL, Sunah Lee, Catherine Bye, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals No. A035-422-486.

Before WOOD, Chief Judge, and BAUER and WILLIAMS, Circuit Judges.

WOOD, Chief Judge.

Bureaucracy’s “specific nature,” Max Weber said, “develops the more perfectly the more [it] is `dehumanized,’ the more completely it succeeds in eliminating from official business love, hatred, and all purely personal, irrational and emotional elements which escape calculation.” Max Weber, Bureaucracy, in FROM MAX WEBER: ESSAYS IN SOCIOLOGY 196, 215-16 (H.H. Gerth & C. Wright Mills eds. & trans., 1991). By this standard, the government’s treatment of this case has achieved perfection.

In 1979, Shmael Isaac Turkhan, an Assyrian Christian and citizen of Iraq, immigrated to the United States as a lawful permanent resident. He was convicted of conspiracy to distribute cocaine in 1990 but has had no trouble with the law since then. Twenty-six years later, the Department of Homeland Security, Javert-like, is still trying to deport him to Iraq. The Board of Immigration Appeals affirmed the immigration judge’s decision to defer his removal under the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), implemented at 8 C.F.R. §§ 208.16, 208.17. It refused, however, to reopen the immigration judge’s order for Turkhan’s removal. This means that he can be removed whenever the conditions for CAT deferral abate.

Turkhan argues that the Board and the immigration judge erred in declining to reopen the decision requiring his removal for two reasons: first, he says, it was wrong for the Board to read its own order as a limited remand for consideration of relief under the CAT rather than as a reopening of the entire proceeding under section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c) (1994); and second, the Board should have found that Turkhan’s constitutional right to procedural due process was violated at his original section 212(c) hearing. While we are mystified by the government’s decision to contest this matter, the decision is not ours to make, and we must therefore deny Turkhan’s petition for review.

I

Turkhan was born in 1960, in Kirkuk, Iraq. On January 29, 1979, at age 19, he arrived in New York. His entry was lawful, and he eventually became a legal permanent resident. He was—and is—a practicing Assyrian Christian and has not left the United States since he entered in 1979. He is married to a U.S. citizen, is the father of two U.S. citizen children, ages 10 and 19, and is the stepfather of his wife’s other two children, whom he helped to raise.

For his first 11 years in the United States, Turkhan lived uneventfully in Chicago, Illinois (where he still resides). But on April 17, 1990, he pleaded guilty to conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846. He was sentenced to 47 months’ imprisonment. By all accounts, he was a model prisoner: he obtained his G.E.D., completed a 166-hour course for nursing assistants, was awarded a certificate for finishing another course for nursing assistants and mental-health companions, and graduated from the Adult Basic Education Course. He also worked as a mental-health companion while in federal custody. A letter of commendation written by a supervisor noted that “his language abilities ha[d] proved invaluable to the correctional and medical staff in our mission to provide safe, humane and professional psychiatric services to our patients”; that he was “a positive role model for the patients and for the other inmates in our institution”; and that he “balance[d] his role as a patient advocate and compassionate Mental Health worker with [sic] the confines of his status as an inmate with great finesse and maturity.”

At the conclusion of his prison term, Turkhan was placed in deportation proceedings. On October 3, 1994, an immigration judge found him deportable based on his conviction of an aggravated felony. Turkhan turned for relief to section 212(c) of the INA, which at the time allowed the Attorney General to waive deportation for certain otherwise excludable legal permanent residents. See 8 U.S.C. § 1182(c) (1994); INS v. St. Cyr, 533 U.S. 289, 294 (2001) (noting that the Board has interpreted section 212(c) to allow for waiver of deportation). (Section 212(c) was later repealed by § 304(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, (IIRIRA) Pub. L. No. 104-208, Div. C, 110 Stat. 3009, 3009-597, and replaced with a narrower waiver for which Turkhan is not eligible. See 8 U.S.C. § 1229b(a)(3) (waiver available only to permanent residents not convicted of aggravated felony)).

At the hearing, Turkhan attempted to have his mother and sister testify on his behalf. They do not speak English, however, and although arrangements were supposed to have been made for an interpreter, one was not provided. According to the testimony of Gerardo Gutierrez, Turkhan’s attorney, Gutierrez was supposed to renew Turkhan’s request for an interpreter 30 days before the hearing but he forgot to do so. As a result, Turkhan was unable to present the testimony of his mother and sister. The immigration judge reviewed only their “somewhat boiler plate” affidavits, to which he gave almost no weight because they did not testify. The immigration judge found Turkhan statutorily eligible for relief under section 212(c), but denied it as a matter of discretion. The Board affirmed.

From there, Turkhan’s case meandered along a long and winding road. In May 1997, the Board denied Turkhan’s motions to reconsider and reopen his case, finding that, as an aggravated felon, he was statutorily ineligible for section 212(c) relief under changes to the INA made by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-208, Div. C, 110 Stat. 2009, and IIRIRA. Later that year, we ruled that AEDPA and IIRIRA deprived us of jurisdiction to review the Board’s decisions in Turkhan’s case. See Turkhan v. INS, 123 F.3d 487 (7th Cir. 1997), abrogated by LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. 1998). In 1999, we held that we had jurisdiction to consider Turkhan’s petition for a writ of habeas corpus, but affirmed the district court’s denial of the writ and held that Turkhan was ineligible for a section 212(c) waiver. See Turkhan v. Perryman, 188 F.3d 814 (7th Cir. 1999).

In January 2001, the Department of Justice issued new regulations providing for the reopening of certain section 212 cases. See 8 C.F.R. §§ 3.44, 212.3 (2001). Turkhan filed another motion to reopen. While that motion was pending, the Supreme Court handed down INS v. St. Cyr, 533 U.S. 289 (2001), which held that persons rendered removable by guilty pleas entered prior to AEDPA’s enactment may still obtain relief under section 212(c). The Board nevertheless denied Turkhan’s motion and his motion to reconsider.

The Department issued additional regulations in 2004. See 8 C.F.R. § 1003.44 (2004). Turkhan filed another motion to reopen, which was denied, as was its reconsideration. In 2006, he filed a new motion to reopen, seeking withholding of removal under the CAT and reasserting his eligibility for section 212(c) relief. The Board denied the motion. Turkhan filed a motion for reconsideration, along with a petition for review.

On February 27, 2007, somewhat surprisingly, the Board ordered Turkhan’s proceedings reopened. It explained that “[i]n light of [Youkhana v. Gonzales, 460 F.3d 927 (7th Cir. 2006)],” it would “grant the motion to reconsider sua sponte, vacate [its] June 12, 20[0]6 decision and remand the record so that the Immigration Judge may consider the respondent’s claims based on changed country conditions in Iraq.” In 2009, an immigration judge ruled that, despite limiting language in the Board’s remand order, Turkhan could apply for any form of relief.

Shortly thereafter, the immigration judge administering Turkhan’s case retired and a new judge took over the case. The new judge took a fresh look at the matter and held that the Board’s order did not reopen Turkhan’s application for section 212(c) relief. In 2012, that judge issued an oral decision finding Turkhan ineligible to seek section 212(c) relief but granting deferral of removal under the CAT. The Board affirmed. Turkhan then filed a motion to reconsider, in which he contended that the Board had reopened both his CAT claim and his section 212(c) application. Both the immigration judge and the Board disagreed with that view. In affirming the immigration judge’s decision, the Board noted:

The subsequent decision of the Board granting the respondent’s motion based on changed country conditions did not restore the respondent to his prior lawful permanent resident status, because such an order is merely an interlocutory measure allowing for a hearing on a new issue that has arisen; it does not abrogate the existing deportation order or confer lawful immigration status on the movant.

Turkhan moved for reconsideration, which the Board denied. Turkhan petitioned for review of both decisions. We consolidated his petitions, and now address them.

II

Where, as it did in this case, the Board “affirms the [immigration judge’s] decision and supplements with its own explanation for denying the appeal, we review the [immigration judge’s] decision as supplemented by the [Board’s] reasoning.” Champion v. Holder, 626 F.3d 952, 956 (7th Cir. 2010). In doing so, we review factual and credibility determinations to ensure that they are supported by substantial evidence; we evaluate legal conclusions de novo. Lishou Wang v. Lynch, 804 F.3d 855, 858 (7th Cir. 2015) (internal citations omitted). Because the criminal-alien review bar applies, this Court has jurisdiction to review only constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(C), (D).

A

Turkhan urges that there is no such thing as a partial reopening and that the Board therefore committed legal error when it purported to take such an action. There is no basis for his contention. To the contrary, we have held that the Board’s decision that an individual is removable is still “final” when it is remanded for a background check to ensure eligibility for withholding of deportation. See Viracacha v. Mukasey, 518 F.3d 511, 513 (7th Cir. 2008) (noting that a “final order of removal” is an “order of the agency `concluding that the alien is deportable or ordering deportation'” (quoting 8 U.S.C. § 1101(a)(47)(A)).

The same logic applies here. An “order withholding removal”—of which an order based on the CAT is one— “supposes that the alien is `removable.'” Id. at 514 (citing Guevara v. Gonzales, 472 F.3d 972, 976 (7th Cir. 2007)). The Board has long held that when an order reopening proceedings is granted because “a new question has arisen that requires a hearing,” that order “is an interlocutory order allowing for such a hearing and does not dispose of the merits of the application for relief from deportation.” In Re M—- S—-, 22 I. & N., Dec. 349, 354 (BIA 1998) (internal citations omitted). There is no reason to doubt that the Board may use such a procedure. See generally Auer v. Robbins, 519 U.S. 452, 461 (1997) (formal agency interpretations of own regulations are “controlling unless `plainly erroneous or inconsistent with the regulation'” (citation omitted)). The Board’s interpretation of the relevant regulations is entirely reasonable. See 8 C.F.R. §§ 1003.2(c)(3)(ii)(excepting certain applications for withholding of deportation based on changed country conditions from ordinary motion-to-reopen time and numerical limitations), § 1003.23(b)(3)-(4) (same for CAT, differentiating conditions for granting motions to reopen based on relief sought).

Turkhan points to a number of our cases, which he reads as rejecting the Board’s reasoning in In re M—- S—-. He is mistaken. True, Orichitch v. Gonzales held that “the grant of a motion to reopen vacates the previous order of deportation or removal and reinstates the previously terminated immigration proceedings.” 421 F.3d 595, 598 (7th Cir. 2005) (quoting Bronisz v. Ashcroft, 378 F.3d 632, 637 (7th Cir. 2004)). But Orichitch involved an order to reopen the immigrant’s removal proceedings themselves, not a separate ground for withholding removal. Id. at 597. Bronisz dealt with the distinct question whether the grant of a motion to reopen is part of the original immigration proceedings, or constitutes the commencement of a new proceeding. See 378 F.3d at 636-37.

The dicta Turkhan cites from Fedorca v. Perryman simply contemplates the situation we confronted in Orichitch—a motion to reopen the removal proceedings as a whole. 197 F.3d 236, 240 (7th Cir. 1999) (“If Fedorca’s motion to reopen his deportation proceedings had been successful… it would have abrogated the 1995 deportation order.”). None of these cases says that if the Board wants to remand, it faces an “all or nothing” choice.

Turkhan also asserts that the “Department of Homeland Security agreed that [he] was a permanent resident after the 2007 reopening and remand by issuing him a new permanent resident card in 2014.” But that is misleading. About seven months after he received that card, U.S. Citizenship and Immigration Services notified him that he had received it in error and that his status had not changed. Turkhan’s argument on this point is not clear, but to the extent he is arguing estoppel, he does not come close to meeting its elements. See United States v. Anaya-Aguirre, 704 F.3d 514, 520 (7th Cir. 2013) (“When a party seeks to estop the government, the party must also show that the government committed affirmative misconduct, which requires `more than mere negligence.'” (citation omitted)).

Turkhan repeatedly refers to St. Cyr and the fact that he is eligible for section 212(c) relief. But eligibility is not the problem. The issue is whether the Board must exercise its discretion to reopen his section 212(c) application, even though it is number-barred. Having lived within the law for the 11 years before and the 26 years since his conviction, Turkhan would be a prime candidate for that discretion if it were exercised. But the government has elected to oppose reopening, and there is no legal basis for forcing the Board to take this step.

Finally, Turkhan contends that because the Board did not consider Orichitch, it erred in denying his motion to reconsider. “While the BIA need not `write an exegesis on every contention,’ its opinion must reflect that `it has heard and thought and not merely reacted.'” Akinyemi v. INS, 969 F.2d 285, 289 (7th Cir. 1992) (quoting Becerra-Jimenez v. INS, 829 F.2d 996, 1000 (10th Cir. 1987)). The Board laid out its reasoning in its October 16, 2014 order. Turkhan repeated arguments he has made before, but he did not identify any error of law or fact, or any argument that the Board overlooked. We find no legal error in the Board’s denial of Turkhan’s motion to reconsider.

B

Turkhan also contends that the conduct of his section 212(c) proceedings violated the procedural due process rights guaranteed to him by the Fifth Amendment to the U.S. Constitution. This argument hits a stumbling block straight out of the gate: non-citizens “have a Fifth Amendment right to due process in some immigration proceedings, but not in those that are discretionary.” Champion, 626 F.3d at 957. The section 212(c) waiver was a discretionary benefit and is therefore governed by this rule. See Bakarian v. Mukasey, 541 F.3d 775, 784 (7th Cir. 2008). Because Turkhan’s section 212(c) proceeding did not adjudicate a right protected by procedural due process, the hearing by definition did not violate due process requirements.

All this said, Turkhan’s experience is troubling. As the immigration judge who granted Turkhan relief under CAT and denied it under section 212(c) noted, Turkhan’s is “an unusual case.” It has been pending for roughly 23 years. The immigration judge opined that “[t]he record clearly shows that [Turkhan] ha[s] been rehabilitated for the offense [he] … committed” 26 years ago. Turkhan has no family in Iraq. To the contrary, all his family is here, and lawfully so. “Family unity” is “one of the principal goals of the [U.S. immigration] statutory and regulatory apparatus.” Fornalik v. Perryman, 223 F.3d 523, 525 (7th Cir. 2000). Finally, Turkhan is 56 years old; he has not set foot in Iraq since he left that country more than 37 years ago, at the age of 19.

The government has continued to pursue this case vigorously despite the fact that, several years ago, it announced a policy of not seeking mandatory punishment against certain low-level, nonviolent drug offenders such as Turkhan. See Memorandum from Attorney General Eric Holder to the United States Attorneys and Assistant Attorney for the Criminal Division (Aug. 12, 2013). Perhaps if the Department allows Turkhan another chance to apply for discretionary relief, things might turn out differently. Perhaps, unlike 23 years ago, Turkhan’s lawyer might not inadvertently fail to secure an interpreter, and Turkhan’s sister and mother will be able to testify on his behalf. Perhaps the immigration judge, who gave the “boiler plate” affidavits of these witnesses little weight, will find their testimony persuasive. Turkhan has also contended that the immigration judge in his section 212(c) decision misinterpreted Turkhan’s prison records in finding that a record of his participation in a drug treatment program contradicted (and rendered not credible) his testimony that he never used drugs. But a closer look reveals that there was no such inconsistency. What Turkhan said was that he worked in that program; he was not a patient. Perhaps that misunderstanding can be resolved in a new proceeding. Perhaps, after 26 years of law-abiding life in the United States, the executive authorities might see fit to give him a chance to win the right to stay rather than live under a constant risk of being dropped back into a country he has not known since he was a teenager.

III

Because it provides only for discretionary relief, section 212(c) endows Turkhan with no right protected by procedural due process; as a result, this theory of relief cannot succeed. Neither did the Board or immigration judge err in determining that the Board could—and did— order only a partial remand of Turkhan’s case. We therefore DENY his petitions for review. Turkhan v. Lynch, Court of Appeals, 7th Circuit 2016

Posted in 212(c), 7th Circuit, 7th Circuit Cases- Aliens, Aggravated felony, Convention Against Torture | Leave a comment

CA7 lacked jurisdiction to review BIA denial of discretionary 212(h) waiver where alien was involved in violent or dangerous crime

Bd. did not err in reversing IJ’s grant of alien’s application for waiver of inadmissibility under section 212(h) of INA, where: (1) alien became removable based on his prior conviction on charge of unarmed bank robbery, which, in turn, resulted in alien’s loss of his legal permanent resident status; and (2) Bd. found that regulation (8 CFR section 1217(d)), that precluded any discretionary exercise of waiver where alien was involved in violent or dangerous crime unless extreme hardship was established, applied to circumstances of alien’s application. Moreover, while IJ found that alien’s removal would cause extreme financial hardship on his children, Bd. found that said hardship was not extreme. Ct. further noted that it lacked jurisdiction to review instant section 212(h) waiver denial and rejected alien’s argument that: (1) instant regulation was in conflict with congressional intent set forth in section 212(h); (2) Bd. applied said regulation improperly; (3) his conviction was not crime of violence; and (4) Bd. improperly failed to consider certain hardship evidence.

Cisneros came to the U.S. in 1988 at age 17 and stayed after the expiration of his visa. In 1995, he married U.S. citizen; his status was adjusted to lawful permanent resident. They divorced in 2002. Cisneros consistently supported his ex-wife and the couple’s children and now has grandchildren. He has a history of alcoholism. In 2012, Cisneros committed unarmed robbery, an aggravated felony under 8 U.S.C. 1227(a)(2)(A)(iii), resulting in loss of his legal permanent resident status and making him inadmissible under 8 U.S.C. 1182(a)(2)(A)(i)(I), because robbery is a crime of moral turpitude. Cisneros applied for a waiver under 8 U.S.C. 1182(h)(1)(B), which gives the Attorney General the discretionary power to waive inadmissibility for the spouse, parent, or child of a U.S. citizen who would suffer “extreme hardship” if removed. An immigration judge granted Cisneros’s application. DHS appealed; the BIA revoked the waiver. The Seventh Circuit denied a petition for review, noting that its authority extends only to legal or constitutional issues, not discretionary determinations.

JOSÉ ANTONIO CISNEROS, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 15-3238.

United States Court of Appeals, Seventh Circuit.
Argued May 26, 2016.
Decided August 25, 2016.

Petition for Review of an Order of the Board of Immigration Appeals No. A073-393-696.

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

WOOD, Chief Judge.

José Antonio Cisneros, who had been a lawful permanent resident of the United States since 1996, had the bad judgment to commit unarmed robbery in 2012. This is an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii), and so one result of his conviction was the loss of his legal permanent resident status. His conviction also made him inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I)— that is, unable to adjust his status back to that of a lawful permanent resident—because robbery is a crime of moral turpitude. In order to regain eligibility for relief from removal through adjustment of status, Cisneros needed to deal with the problem of his inadmissibility. He therefore applied for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(h)(1)(B), which gives the Attorney General the discretionary power to waive inadmissibility based on several grounds, including a crime of moral turpitude, if the person is a spouse, parent, or child of a U.S. citizen who would suffer “extreme hardship” if removed.

The Attorney General has promulgated regulations implementing this authority. The regulations state that with respect to inadmissibility based on “violent or dangerous crimes,” she “in general, will not favorably exercise discretion under section 212(h)(2) of the Act . . . to consent to an application or reapplication for a visa, or admission to the United States, or adjustment of status, with respect to immigrant aliens who are inadmissible under section 212(a)(2) of the Act in cases involving violent or dangerous crimes, except in extraordinary circumstances.” 8 C.F.R. § 1212.7(d). The regulation identifies, as one example of such extraordinary circumstances, “cases in which an alien clearly demonstrates that the denial of the application for adjustment of status or an immigrant visa or admission as an immigrant would result in exceptional and extremely unusual hardship.” Id.

An immigration judge granted Cisneros’s application for a waiver and adjustment of status, finding that his U.S.-citizen family would suffer “exceptional and extremely unusual hardship” as a result of his removal. The Department of Homeland Security appealed, and the Board of Immigration Appeals (“the Board”) overturned that decision and revoked the waiver. Cisneros now petitions for review from the Board’s decision. Our authority, however, extends only to legal or constitutional issues, not discretionary determinations. Finding no cognizable error, we deny the petition for review.

I

Cisneros came to the United States in 1988 at age 17 and stayed after the expiration of his visa. In 1995, he married U.S. citizen Melissa Cisneros, and in 1996 his status was adjusted to lawful permanent resident. They were divorced in 2002, but remained on good terms. Cisneros’s oldest child, Maria Esmeralda, was 24 years old at the time of the removal proceeding; Marissa, his first child with Melissa, was 17 years old; and Marsea, their second daughter, was 15. Cisneros also has two stepsons from Melissa’s previous marriage. Maria had three children of her own, only two of whom are now living. According to the testimony, Cisneros consistently supported the children financially and supported Melissa after their divorce.

On a darker note, Cisneros has a history of alcoholism and a criminal record that includes robbery, battery, a 1998 DUI, and assorted convictions for driving without a license. He has enrolled in rehabilitation programs several times, most recently in 2008. The immigration judge described his testimony about the 2012 conviction:

[H]e was depressed, his car was broken, so he went on a bicycle and tried to look for a used car, something that was inexpensive that maybe his family can lend him some money, or some friends, in order to buy a new vehicle. As he was riding his bicycle, he passed by a bank that he had not entered before and told the teller to give him all her money. She gave him all the money. He then walked out of the bank and rode back to his home.

The probable-cause affidavit for Cisneros’s arrest adds that his demand for money was on a written note that he handed the teller that read, “Give me all the money.” Cisneros represents that he got just $75.

The immigration judge heard testimony from Cisneros and Melissa. Maria was unable to appear at the proceeding, for the grim reason that her boyfriend at the time had beaten her three-year-old daughter Anabel, Cisneros’s granddaughter, to death on December 23, 2014, and Maria herself was in jail on felony neglect charges. The judge described Cisneros’s history with alcoholism and his attempts to get better, as well as his close relationships with his children, stepchildren, grandchildren, and ex-wife. She went through the details of his prior convictions. She examined the circumstances that led up to the 2012 robbery. She noted his current sobriety and church attendance. She concluded, given his earning potential, the recent family tragedy, and the fact that all of the U.S. citizen family members would remain in the United States even if Cisneros was removed, that the “profound and far reaching” “economic and emotional hardship” that would result from his removal warranted an exercise of discretion in his favor. Cisneros’s removal, the immigration judge concluded, “would result in exceptional and extremely unusual hardship to his qualifying relatives, particularly his young children.”

The Board disagreed. It held that 8 C.F.R. § 1212.7(d) applies to Cisneros’s conviction because, despite the absence of any weapon or harm caused to anyone, “the potential for a physical altercation in committing” robbery renders it a dangerous crime. The Board found that Cisneros’s younger daughters—the oldest, Maria, was not a child within the meaning of the Act and therefore not a qualifying family member—would “suffer the emotional and financial hardship of separation from their father,” but it would not be exceptional or extremely unusual. The children would soon be old enough to visit him on their own, the Board added. The Board also explained that hardship is only one factor, and even if Cisneros demonstrated exceptional and extremely unusual hardship to his qualifying relatives, his “negative factors. . . far outweigh the positive.”

II

Unless a constitutional claim or question of law is present, we have no authority to review either the Attorney General’s discretionary grant or denial of a section 212(h) waiver, 8 U.S.C. § 1182(h)(2), or a final order finding a person removable because of the commission of an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). Vaca-Tellez v. Mukasey, 540 F.3d 665, 668 (7th Cir. 2008).

Our review of the Board’s constitutional and legal determinations is de novo. Surganova v. Holder, 612 F.3d 901, 903 (7th Cir. 2010). We give deference to the Board’s interpretation of immigration statutes. Cano-Oyarzabal v. Holder, 774 F.3d 914, 916 (7th Cir. 2014) (citing Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)). If a statute is unambiguous, we implement its plain meaning. If it is unclear, we defer to the Board’s interpretation so long as its interpretation is reasonable. Hamlin v. Holder, 755 F.3d 506, 511 (7th Cir. 2014).

Cisneros’s petition for review presents four arguments: (1) that section 1212.7(d) is an invalid regulation in conflict with congressional intent and the relevant statute, (2) that even if the regulation is valid, the Board applied it improperly, (3) that his crime was not violent or dangerous, and (4) that the Board committed legal error by failing to consider certain material facts in its hardship analysis.

A

We begin with his argument about the validity of the regulation. He contends that it impermissibly narrows the statutory language. Section 212(h)(1)(B) allows the Attorney General to waive inadmissibility if removal would result in “extreme hardship” to a citizen or lawful resident spouse, parent, or child. Yet the regulation, section 1212.7(d), significantly narrows the scope for discretion with respect to violent or dangerous crimes. We must decide whether the regulation has permissibly cabined the executive branch’s own authority, or if instead it is an impermissible refusal to exercise the discretion that Congress has required the executive to exercise. We note that Cisneros has not waived this argument by failing to ask the Board to set aside the Attorney General’s regulation. Such an action would lie beyond the Board’s power. See Matter of Anselmo, 20 I. & N. Dec. 25, 30 (BIA 1989) (“Neither this Board nor an immigration judge has authority to consider a challenge to the Attorney General’s determination[.]”). He thus had no duty to present this argument to the Board. Isaaq v. Holder, 617 F.3d 962, 968 (7th Cir. 2010).

Section 212(h)(1)(B), 8 U.S.C. § 1182(h)(1)(B), sets out the “extreme hardship” waiver. Section 212(h)(2) states that once the terms of 212(h)(1)(A) or (B) or (C) are met and the Attorney General has, using the “discretion . . . pursuant to such terms, conditions and procedures as he may by regulations prescribe,” consented to the petitioner’s application, waiver can occur. The Attorney General argues that section 1212.7(d) is just that: a “term,” “procedure,” or “condition” prescribed by regulation in order to implement the authority granted by the statute. Congress expressly left it up to the Attorney General to promulgate regulations to guide the discretion granted in the statute, and she has done so. Chevron, 467 U.S. at 843-44 (“If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation.”). Cisneros responds that there is no gap to fill—rather, section 1212.7(d)’s “exceptional and extremely unusual hardship” language conflicts with and replaces section 1182(h)(2), and therefore is invalid.

The Attorney General has the better of this debate. The plain language of the statute grants the Attorney General discretion over inadmissibility waivers and the authority to regulate that discretion. She has chosen to decline, as a matter of policy, to exercise her discretion in favor of a petitioner who has committed a “violent or dangerous” crime, unless that person can demonstrate a hardship even greater than that which those who commit non-violent, non-dangerous crimes must show. Granting Cisneros’s point that “extreme hardship” is a lower threshold than “exceptional and extremely unusual hardship,” the fact remains that the statute permits the Attorney General to fine-tune her discretion in this way. Indeed, in Lopez v. Davis, 531 U.S. 230 (2001), the Supreme Court came to much the same conclusion with respect to a regulation promulgated by the Bureau of Prisons on the subject of early release. The statute there denied early release to inmates convicted of violent offenses, but the regulation added an additional category of ineligible inmates—those whose current offense is a felony involving a firearm. Id. at 238. The statute merely described eligibility for early release, not an entitlement to it, and so the Bureau was within its rights to identify another group for whom release was inappropriate. The Attorney General’s regulation in our case does the same thing, and so the same result should follow.

The regulation in our case does not render it impossible for persons who have committed violent or dangerous crimes to obtain relief. It just imposes a higher bar. We are not sure, nor could the government enlighten us, about how many people might fail the stricter regulatory test yet qualify for the more lenient statutory test. In the end, however, this does not matter. This is a regulation formally promulgated through statutory authority, and so it qualifies for Chevron deference. In accordance with Chevron’s two-part test, we first ask whether Congress “directly spoke[] to the precise question at issue,” and if not, we ask whether the Attorney General’s construction of the statute is permissible. Yi Di Wang v. Holder, 759 F.3d 670, 673 (7th Cir. 2014) (quoting Chevron, 467 U.S. at 842-43 & n.9).

Congress spoke directly to the question how a petitioner can show he is eligible for a discretionary inadmissibility waiver: by demonstrating extreme hardship to a qualifying family member. 8 U.S.C. § 1182(h)(1)(B). Just as in Lopez, Congress did not constrain the Attorney General’s authority to draw lines within the set of people identified by the statute.

Cisneros quibbles about the source of the “exceptional and extremely unusual” phrase, which comes from a case involving a refugee waiver, not a section 1182(h) waiver. In re Jean, 23 I. & N. Dec. 373 (U.S. Att’y Gen. 2002), but we see no significance in the source of the language the Attorney General chose to adopt. We approved of the heightened In re Jean standard for refugee waivers in Ali v. Achim, 468 F.3d 462 (7th Cir. 2006), finding that it did not conflict with section 1159(c) because section 1159(c) does not require, but only allows, waiver in the listed circumstances. Nothing in section 212(h) compels a different result.

This regulation differs from the one at issue in Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005), where the First Circuit found invalid a rule categorically barring people on parole from inadmissibility waivers. The First Circuit noted that “[t]he Supreme Court itself has ruled that the two questions of discretion as to the ultimate relief and discretion as to eligibility exclusions are distinct.” Id. at 23 (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 433-34 (1987)). Even if no petitioner who meets “extreme hardship” but not “exceptional and extremely unusual hardship” is ever granted a waiver under section 1212.7(d), the regulation is nonetheless not a categorical bar of the kind in Succar. It does not render people convicted of violent or dangerous crimes ineligible; it raises the threshold for obtaining the ultimate relief.

Our conclusion is in accord with five of our sister circuits. See Perez Pimentel v. Mukasey, 530 F.3d 321, 325 (5th Cir. 2008) (“Congress has not spoken to the standards the Attorney General may employ under § 1182(h)(2), and the regulation is directed only to the Attorney General’s discretion under that subsection”); Samuels v. Chertoff, 550 F.3d 252, 257 (2d Cir. 2008) (“Because proof of `extreme hardship’ constitutes only a threshold showing, Section 1212.7(d) is not inconsistent with Section 212(h)”); Mejia v. Gonzales, 499 F.3d 991, 996 (9th Cir. 2007) (“The Attorney General has not changed or altered the statutory `extreme hardship’ standard. Instead, he has promulgated a regulation to guide [immigration judges] in the way they exercise their relatively unfettered grant of discretion after the statutory requirements are met.”); Talavera v. U.S. Att’y Gen., 628 F. App’x 997, 999 (11th Cir. 2015) (nonprecedential holding that the Attorney General was empowered to “issue regulation 1212.7(d) to provide guidance about how to weigh an alien’s criminal offense against any hardships caused by his removal”); Idowu v. U.S. Att’y Gen., 512 F. App’x 222, 226 (3d Cir. 2013) (nonprecedential, citing Samuels and Mejia). We see no reason to create a conflict with them.

B

Cisneros next urges that even if the regulation is valid, the Board improperly applied it in his case. He points to the following sentence from the Board’s decision: “the respondent has not demonstrated the kind of extraordinary circumstances that would render him eligible for a waiver under 212(h) of the Act.” Therefore, he claims, the agency decision does not warrant deference because it did not focus on the right question. See Mata-Guerrero v. Holder, 627 F.3d 256, 259 (7th Cir. 2010) (“Chevron deference . . . assumes that an agency has taken a careful look at the general legal issue and has adopted a reasonably consistent approach to it.”).

The government responds that Cisneros takes the sentence out of context. The full sentence reads: “As the respondent has not demonstrated the kind of extraordinary circumstances that would render him eligible for a waiver under 212(h) of the Act in light of his conviction, he does not merit a favorable discretionary determination.” The Board’s decision continues by noting that “the hardship presented is but one factor to consider in making a discretionary determination,” and concludes that “the respondent does not merit the relief he seeks in the exercise of discretion . . . Although the respondent has several notable equities, the negative factors in his case far outweigh the positive.”

The Board’s decision shows that it followed the regulation and asked whether, given Cisneros’s eligibility for relief, a favorable exercise of discretion was merited. Finding no “exceptional and extremely unusual” hardship, it said no. The Board did not consider Cisneros “ineligible” because of his violent or dangerous crime and did not commit any error in applying section 1212.7(d).

C

Cisneros next argues that his crime should not have been classified as “violent or dangerous.” If this was wrong, then it would have been error to apply section 1212.7(d) to him. His argument is that the Board improperly applied a categorical approach to determine that his crime fell in that category; it should instead have analyzed the facts and circumstances underlying his robbery conviction. See Taylor v. United States, 495 U.S. 575 (1990) (establishing a categorical approach to classify state crimes); Shepard v. United States, 544 U.S. 13 (2005) (clarifying the modified categorical approach); see also Descamps v. United States, 133 S. Ct. 2276 (2013) (describing modified categorical approach).

The categorical approach is a method often used to determine whether a prior conviction should be used, usually for purposes of sentencing enhancement. Critically, the court looks only at the elements of the crime, not at the particular way in which it was committed. Section 1212.7(d) does not explicitly state whether a facts-and-circumstances approach or a categorical approach (or a modified categorical approach) is appropriate for determining whether a crime is “violent or dangerous” for purposes of the regulation. Cisneros draws support for his argument that a facts-and-circumstances approach is required from In re Jean, where the Attorney General described the crime in some detail. 23 I. & N. Dec. at 383. But in the end, the Attorney General there concluded that it made no difference whether the crime was a violent one, because the applicant was unfit in any event for discretionary relief. Id.

Neither does our decision in Ali clarify whether the categorical approach is required. 468 F.3d 462. Ali did not address the appropriate way for immigration judges and the Board to determine whether a crime was “violent or dangerous.” Cisneros claims that we rejected the categorical approach in that case, but he conflates our rejection of a categorical bar on certain petitioners with a categorical approach to analyzing the crime of conviction.

The Ninth Circuit requires the Board to “mak[e] a determination based on the facts underlying [the] conviction that [the] crime was violent or dangerous” before applying the heightened regulatory standard. See Rivas-Gomez v. Gonzales, 225 F. App’x 680, 683 (9th Cir. 2007) (nonprecedential); cf. Torres-Valdivias v. Lynch, 786 F.3d 1147, 1152 (9th Cir. 2015) (finding the Board had discretion not to apply a categorical approach in determining whether a crime was “violent or dangerous”). The Eleventh Circuit has stated that “Jean required neither a `categorical’ nor a `fact-based’ approach to determining whether a refugee’s conviction renders him a `violent or dangerous individual,'” but rather only “an adequate consideration of the nature of the refugee’s crime.” Makir-Marwil v. U.S. Att’y Gen., 681 F.3d 1227, 1235 (11th Cir. 2012). The Eleventh Circuit seems to favor an elements approach for very serious crimes and a facts-and-circumstances approach for others. Id. The Board has suggested, in dictum, that a “facts” approach might be preferable to a categorical one for “violent or dangerous” crime determinations. See Matter of Dominguez-Rodriguez, 26 I. & N. Dec. 408, 413 n.9 (BIA 2014).

We see nothing in the statute that compels the Attorney General to adopt one or the other of these methodologies. Because she created the regulation to guide her own discretion, she retains the authority to decide how to interpret the term “violent or dangerous” crime, as long as the interpretation is permissible under the INA. Chevron, 467 U.S. at 843; see also Makir-Marwil, 681 F.3d at 1235 (“all Jean requires is an adequate consideration of the nature of the refugee’s crime”).

We need not pursue this argument further, because the Board does not seem to have applied a strict categorical approach here. It noted that Cisneros’s crime “did not involve a weapon and did not cause harm to any individual,” but it concluded that “the potential for a physical altercation in committing such a crime is itself sufficient to determine it is a dangerous crime.” The Board thus did consider Cisneros’s specific acts and found that the crime met the regulation based on those acts. It did not end its analysis simply by pointing to robbery as the crime of conviction. Given that the Attorney General created the category of crime at issue here, and given her broad discretion, we cannot say that the Board’s determination that Cisneros’s crime was “violent or dangerous” was impermissible.

D

Last, Cisneros argues that the Board erred by failing to consider certain material facts in its hardship analysis. He takes issue with the fact that the Board did not mention his infant granddaughter’s recent traumatic and horrific death, nor the fact that his ex-wife testified that she might be homeless without his financial support. But the Board is not required to recite every fact that Cisneros raised as evidence of extreme hardship to his family. While Cisneros tries to characterize the issue as a legal error, it is really a challenge to the Board’s exercise of discretion and thus one that we are not permitted to review. See Papazoglou v. Holder, 725 F.3d 790, 794 (7th Cir. 2013) (because the Board applied the correct legal standards, the petitioner’s argument “ultimately constitute[d] a disagreement with the Board’s exercise of discretion in refusing to grant the waiver.”). While the “wholesale failure to consider evidence” would be an error of law, see Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008) (citation and quotation marks omitted), the Board did not ignore “wholesale” Cisneros’s evidence of hardship.

III

Because the Board made no legal error in reversing the immigration judge’s grant of relief from removal, we DENY the petition for review.

Posted in 212 (h) waiver, 7th Circuit, 7th Circuit Cases- Aliens, Uncategorized, Waivers, Waivers of Inadmissibility | Leave a comment