BIA Precedent Decisions Volume 25 (3643 – 3765)

A-S-J-, 25 I&N Dec. 893 (BIA 2012)

ID 3765 (PDF)

An Immigration Judge lacks jurisdiction to review the termination of an alien’s asylum status by the Department of Homeland Security pursuant to 8 C.F.R. § 208.24(a) (2007).


C-B-, 25 I&N Dec. 888 (BIA 2012)

ID 3764 (PDF)

(1) In order to meaningfully effectuate the statutory and regulatory privilege of legal representation where it has not been expressly waived by a respondent, an Immigration Judge must grant a reasonable and realistic period of time to provide a fair opportunity for the respondent to seek, speak with, and retain counsel.

(2) If a respondent expresses a fear of persecution or harm in a country to which he or she might be removed, the regulations require the Immigration Judge to advise the respondent of the right to apply for asylum or withholding of removal (including protection under the Convention Against Torture) and make the appropriate application forms available.

(3) If a respondent indicates that he or she will not waive appeal and is therefore ineligible for a grant of voluntary departure prior to the completion of removal proceedings under section 240B(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(a)(1) (2006), the Immigration Judge should consider the respondent’s eligibility for voluntary departure at the conclusion of the proceedings under section 240B(b)(1).


CALDERON-HERNANDEZ, 25 I&N Dec. 885 (BIA 2012)

ID 3763 (PDF)

An applicant for cancellation of removal seeking to establish exceptional and extremely unusual hardship to his or her child is not required to provide an affidavit and other documentary evidence regarding the child’s care and support upon the alien’s removal if the child will remain in the United States with another parent, even if the other parent is in this country unlawfully. Matter of Ige, 20 I&N Dec. 880 (BIA 1994), clarified.


AKRAM, 25 I&N Dec. 874 (BIA 2012)

ID 3762 (PDF)

(1) An alien who was admitted to the United States as a K-4 nonimmigrant may not adjust status without demonstrating immigrant visa eligibility and availability as the beneficiary of a Petition for Alien Relative (Form I-130) filed by his or her stepparent, the United States citizen K visa petitioner.

(2) A K-4 derivative child of a K-3 nonimmigrant who married the United States citizen K visa petitioner after the K-4 reached the age of 18 is ineligible for adjustment of status because he or she cannot qualify as the petitioner’s “stepchild.”


VALENZUELA, 25 I&N Dec. 867 (BIA 2012)

ID 3761 (PDF)

An alien who is admitted to the United States in K-4 nonimmigrant status may only adjust his or her status to that of a lawful permanent resident based on the Petition for Alien Relative (Form I-130) filed by the United States citizen K visa petitioner.


CUELLAR, 25 I&N Dec. 850 (BIA 2012)

ID 3760 (PDF)

(1) A formal judgment of guilt of an alien entered by a municipal court is a “conviction” under section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2006), if the proceedings in which the judgment was entered were genuine criminal proceedings. Matter of Rivera-Valencia, 24 I&NDec. 484 (BIA2008), and Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004), followed.

(2) A Wichita, Kansas, municipal ordinance which recapitulates a Kansas statute prohibiting marijuana possession is a “law or regulation of a State . . . relating
to a controlled substance” under section 237(a)(2)(B)(i) of the Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2006).

(3) Possession of marijuana after a prior municipal ordinance conviction for marijuana possession in violation of former sections 65-4162(a) and (b) of the Kansas Statutes Annotated is an aggravated felony under section 101(a)(43)(B) of theAct by virtue of its correspondence to the Federal felony of “recidivist possession,” 21U.S.C. § 844 (2006), provided the prior conviction was final when the second offense was committed. Lopez v. Gonzales, 549 U.S. 47 (2006), followed; Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), and Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007), distinguished.


GUZMAN MARTINEZ, 25 I&N Dec. 845 (BIA 2012)

ID 3759 (PDF)

Pursuant to section 101(a)(13)(C)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(C)(iii) (2006), a lawful permanent resident of the United States may be treated as an applicant for admission in removal proceedings if the Department of Homeland Security proves by clear and convincing evidence that the returning residentengaged in “illegal activity” at a United States port of entry.


VALENZUELA GALLARDO, 25 I&N Dec. 838 (BIA 2012)

ID 3758 (PDF)

(1) A crime “relate[s] to obstruction of justice” within the meaning of section 101(a)(43)(S) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(S) (2006), if it includes the critical element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice, irrespective of the existence of an ongoing criminal investigation or proceeding. Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997), reaffirmed. Matter of Espinoza, 22 I&N Dec. 889 (BIA 1999), clarified.

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


FERNANDEZ TAVERAS, 25 I&N Dec. 834 (BIA 2012)

ID 3757 (PDF)

(1) Section 101(a)(13)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(C) (2006), which relates to returning lawful permanent residents seeking admission at a port of entry, is not applicable to an alien applying for adjustment of status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2006), who has the burden to prove admissibility to the United States.

(2) A lawful permanent resident who was granted cancellation of removal under section 240A(a) of the Act, 8 U.S.C. § 1229b(a) (2006), in prior removal proceedings based on a drug conviction has the burden to prove that he is not inadmissible on the basis of the conviction when applying for adjustment of status in a subsequent removal proceeding.


ISIDRO, 25 I&N Dec. 829 (BIA 2012)

ID 3756 (PDF)

An applicant for cancellation of removal whose son or daughter met the definition of a “child” when the application was filed but turned 21 before the Immigration Judge adjudicated the application on the merits no longer has a qualifying relative under section 240A(b)(1)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(D) (2006). Matter of Bautista Gomez, 23 I&N Dec. 893 (BIA 2006), clarified.


C. VALDEZ, 25 I&N Dec. 824 (BIA 2012)

ID 3755 (PDF)

An alien’s pre-November 28, 2009, admission to the Commonwealth of the Northern Mariana Islands (“CNMI”) by the CNMI Immigration Service does not constitute an inspection and admission or parole “into the United States” for purposes of adjustment of status pursuant to section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a) (2006).


O. VAZQUEZ, 25 I&N Dec. 817 (BIA 2012)

ID 3754 (PDF)

An alien may satisfy the “sought to acquire” provision of section 203(h)(1)(A) of the Act, 8 U.S.C. § 1153(h)(1)(A) (2006), by filing an application for adjustment of status or by showing that there are other extraordinary circumstances in the case, particularly those where the failure to timely file was due to circumstances beyond the alien’s control.


SANCHEZ SOSA, 25 I&N Dec. 807 (BIA 2012)

ID 3753 (PDF)

(1) In determining whether good cause exists to continue removal proceedings to await the adjudication of an alien’s pending U nonimmigrant visa petition, an Immigration Judge should consider (1) the response of the Department of Homeland Security to the alien’s motion to continue; (2) whether the underlying visa petition is prima facie approvable; and (3) the reason for the continuance and other procedural factors.

(2) To establish prima facie eligibility for a U nonimmigrant visa, an alien must have suffered substantial physical ormental abuse as the innocent victimof a qualifying crime for which the alien has been, is being, or will be helpful to law enforcement, which ordinarily requires an approved law enforcement certification.

(3) An alien who has filed a prima facie approvable petition for a U visa with the United States Citizenship and Immigration Services will ordinarily warrant a favorable exercise of discretion for a continuance for a reasonable period of time.


SKIRBALL CULTURAL CENTER, 25 I&N Dec. 799 (AAO 2012)

ID 3752 (PDF)

(1) Congress did not define the term “culturally unique,” as used in section 101(a)(15)(P)(iii) of the Immigration andNationalityAct, 8 U.S.C. § 1101(a)(15)(P)(iii) (2006), leaving reasonable construction of that term to the expertise of the agency charged with adjudicating P-3 nonimmigrant visa petitions.

(2) The term “culturally unique,” as defined at 8 C.F.R. § 214.2(p)(3) (2012), is not limited to traditional art forms, but may include artistic expression that is deemed to be a hybrid or fusion of more than one culture or region.

(3) As the regulatory definition provides for the cultural expression of a particular “group of persons,” the definition may apply to beneficiaries whose unique artistic expression crosses regional, ethnic, or other boundaries.

(4) The regulatory definition of “culturally unique” calls for a case-by-case factual determination.

(5) The petitioner bears the burden of establishing by a preponderance of the evidence that the beneficiaries’ artistic expression, while drawing from diverse influences, is unique to an identifiable group of persons with a distinct culture; it is the weight and quality of evidence that establishes whether or not the artistic expression is “culturally unique.”


DIAZ-GARCIA, 25 I&N Dec. 794 (BIA 2012)

ID 3751 (PDF)

(1) The unlawful removal of an alien during the pendency of a direct appeal from a deportation or removal order in violation of 8 C.F.R. § 1003.6(a) (2012) does not deprive the Board of Immigration Appeals of jurisdiction to review the appeal.

(2) Where an accomplice is defined as one who aids another in the commission of an offense, a person convicted of being an accomplice to a crime has been convicted of the offense as a second-degree principal.


A-Y-M-, 25 I&N Dec. 791 (BIA 2012)

ID 3750 (PDF)

Following the enactment of the Child Status Protection Act, Pub. L. No. 107-208, 116 Stat. 927 (2002), an unmarried alien seeking derivative asylum status based on the approval of his or her parent’s application for asylum who turned 21 while the application was pending continues to be classified as a “child” for purposes of qualifying for derivativestatus under section 208(b)(3)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(3)(B) (2006).


E. W. RODRIGUEZ, 25 I&N Dec. 784 (BIA 2012)

ID 3749 (PDF)

(1) In removal proceedings arising within the jurisdictions of the United States Courts of Appeals for the Fourth, Fifth, and Eleventh Circuits, an aggravated felony conviction disqualifies an alien from relief under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2006), only if the conviction occurred after the alien was admitted to the United States as a lawful permanent resident following inspection at a port of entry. Bracamontes v. Holder, Nos. 10-2033, 10-2280, 2012 WL 1037479 (4th Cir.Mar. 29, 2012);Martinez v.Mukasey, 519 F.3d 532 (5th Cir. 2008); and Lanier v. U.S. Attorney General, 631 F.3d 1363 (11th Cir. 2011), followed in jurisdiction only.

(2) In removal proceedings arising outside the Fourth, Fifth, and Eleventh Circuits, section 212(h) relief is unavailable to any alien who has been convicted of an aggravated felony after acquiring lawful permanent resident status, without regard to the manner in which such status was acquired. Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), reaffirmed.


ARRABALLY AND YERRABELLY, 25 I&N Dec. 771 (BIA 2012) (Amended Order)

ID 3748 (PDF)

An alien who leaves the United States temporarily pursuant to a grant of advance parole does not thereby make a “departure . . . from the United States” within the meaning of section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9)(B)(i)(II) (2006). Matter of Lemus, 24 I&N Dec. 373 (BIA 2007), clarified.


D-K-, 25 I&N Dec. 761 (BIA 2012)

ID 3747 (PDF)

(1) An alien who is a refugee under section 207 of the Immigration and Nationality Act, 8U.S.C. § 1157 (2006), and has not adjusted status to that of a lawful permanent resident may be placed in removal proceedings without a prior determination by the Department of Homeland Security that the alien is inadmissible to the United States. Matter of Garcia-Alzugaray, 19 I&N Dec. 407 (BIA 1986), distinguished.

(2) When removal proceedings are initiated against an alienwho has been “admitted” to the United States as a refugee, the charges of removability must be under section 237 of the Act, 8 U.S.C. § 1227 (2006), rather than section 212 of the Act, 8 U.S.C. § 1182 (2006).


M-W-, 25 I&N Dec. 748 (BIA 2012)

ID 3746 (PDF)

Pursuant to the categorical approach, a conviction for the aggravated felony of murder, as defined in section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C.§ 1101(a)(43)(A) (2006), includes a conviction for murder in violation of a statute requiring a showing that the perpetrator acted with extreme recklessness or a malignant heart, notwithstanding that the requisite mental state may have resulted from voluntary intoxication and that no intent to kill was established.


LEMUS, 25 I&N Dec. 734 (BIA 2012)

ID 3745 (PDF)

Adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), is unavailable to an alien who is inadmissible under section 212(a)(9)(B)(i)(II) of the Act, 8 U.S.C. § 1182(a)(9)(B)(i)(II) (2006), absent a waiver. Matter of Lemus, 24 I&N Dec. 373 (BIA 2007), clarified.


LANFERMAN, 25 I&N Dec. 721 (BIA 2012)

ID 3744 (PDF)

A criminal statute is divisible, regardless of its structure, if, based on the elements of the offense, some but not all violations of the statute give rise to grounds for removal or ineligibility for relief.


ILIC, 25 I&N Dec. 717 (BIA 2012)

ID 3743 (PDF)

For an alien to independently qualify for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), as a derivative grandfathered alien, the principal beneficiary of the qualifying visa petition must satisfy the requirements for grandfathering, including the physical presence requirement of section 245(i)(1)(C) of the Act, if applicable.


L-S-, 25 I&N Dec. 705 (BIA 2012)

ID 3742 (PDF)

(1) An asylum applicant who has established past persecution but no longer has
a well-founded fear of persecution may nevertheless warrant a discretionary grant
of humanitarian asylum based not only on compelling reasons arising out of the
severity of the past persecution, but also on a “reasonable possibility that he or she
may suffer other serious harm” upon removal to his or her country under 8 C.F.R. § 1208.13(b)(1)(iii)(B) (2011).

(2) “Other serious harm”may bewholly unrelated to the applicant’s past harmand need not
be inflicted on account of race, religion, nationality, membership in a particular social
group, or political opinion, but the harm must be so serious that it equals the severity
of persecution.

(3) In determiningwhether an applicant has established a “reasonable possibility” of “other
serious harm,” adjudicators should focus on current conditions that could severely affect
the applicant, such as civil strife and extreme economic deprivation, as well as on the
potential for new physical or psychological harm that the applicant might suffer.


CASTRO RODRIGUEZ, 25 I&N Dec. 698 (BIA 2012)

ID 3741 (PDF)

An alien convicted of possession of marijuana with intent to distribute under State law has
the burden to show that the offense is not an aggravated felony because it involved a “small
amount of marihuana for no remuneration” within the meaning of 21 U.S.C. § 841(b)(4)
(2006), which the alien may establish by presenting evidence outside of the record of conviction. Matter of Aruna, 24 I&N Dec. 452 (BIA 2008),
clarified.


AVETISYAN, 25 I&N Dec. 688 (BIA 2012)

ID 3740 (PDF)

(1) Pursuant to the authority delegated by the Attorney General and the responsibility
to exercise that authority with independent judgment and discretion, the Immigration
Judges and the Board may administratively close removal proceedings, even if a party
opposes, if it is otherwise appropriate under the circumstances. Matter of Gutierrez,
21 I&N Dec. 479 (BIA 1996), overruled.

(2) In determining whether administrative closure of proceedings is appropriate,
an Immigration Judge or the Board should weigh all relevant factors, including but not
limited to: (1) the reason administrative closure is sought; (2) the basis for any
opposition to administrative closure; (3) the likelihood the respondent will succeed
on any petition, application, or other action he or she is pursuing outside of removal
proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either
party, if any, in contributing to any current or anticipated delay; and (6) the ultimate
outcome of removal proceedings (for example, termination of the proceedings or entry
of a removal order) when the case is recalendared before the Immigration Judge or the
appeal is reinstated before the Board.


J. R. VELASQUEZ, 25 I&N Dec. 680 (BIA 2012)

ID 3739 (PDF)

(1) The documents listed in section 240(c)(3)(B) of the Immigration and Nationality Act,
8 U.S.C. § 1229a(c)(3)(B) (2006), and 8 C.F.R. § 1003.41(a) (2011) are admissible
as evidence of a criminal conviction in immigration proceedings, but pursuant to 8 C.F.R.§ 1003.41(d), other probative evidencemay also be admitted to prove a
conviction in the discretion of the Immigration Judge.

(2) Conviction records thatwere submitted by electronicmeans are conclusively admissible
as evidence of a criminal conviction in immigration proceedings if they are authenticated
in themanner specified by section 240(c)(3)(C) of theAct and 8 C.F.R. § 1003.41(c), but
those methods of authentication, which operate as “safe harbors,” are not mandatory
or exclusive, and documents that are authenticated in other waysmay be admitted if they
are found to be reliable.

(3) A document that requires authentication but that is not authenticated is not admissible
as “other evidence that reasonably indicates the existence of a criminal conviction”
within the meaning of 8 C.F.R. § 1003.41(d).


U. SINGH, 25 I&N Dec. 670 (BIA 2012)

ID 3738 (PDF)

(1) A decision by a Federal court of appeals reversing a precedent decision of the Board
of Immigration Appeals is not binding authority outside the circuit in which the case
arises.

(2) A stalking offense for harassing conduct in violation of section 646.9(b) of the
California Penal Code is a crime of violence under 18 U.S.C. § 16(b) (2006) and
is therefore an aggravated felony under section 101(a)(43)(F) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2006). Matter of Malta, 23 I&N Dec. 656
(BIA 2004), reaffirmed. Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th Cir. 2007),
followed in jurisdiction only.


D-X- & Y-Z-, 25 I&N Dec. 664 (BIA 2012)

ID 3737 (PDF)

(1) A facially valid permit to reside in a third country constitutes prima facie evidence
of an offer of firm resettlement pursuant to section 208(b)(2)(A)(vi) of the Immigration
and Nationality Act, 8 U.S.C. § 1158(b)(2)(A)(vi) (2006), even if the permit was
fraudulently obtained.

(2) Where an asylum applicant who has resettled in a third country travels to the
United States or the country of claimed persecution and then returns to the country
of resettlement, he or she has not remained in that country “only as long aswas necessary
to arrange onward travel” for purposes of establishing an exception to firmresettlement
pursuant to 8 C.F.R. § 1208.15(a) (2011).


R-A-M-, 25 I&N Dec. 657 (BIA 2012)

ID 3736 (PDF)

The respondent’s conviction for possession of child pornography is for a particularly
serious crime under section 241(b)(3)(B)(ii) of the Immigration and Nationality Act,
8U.S.C. § 1231(b)(3)(B)(ii) (2006), based on the nature of the offense and the specific facts
and circumstances of the crime.


ESPINOSA GUILLOT, 25 I&N Dec. 653 (BIA 2011)

ID 3735 (PDF)

An alien who has adjusted status to that of a lawful permanent resident pursuant to the
Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161,
as amended, has been admitted to theUnited States and is subject to charges of removability
under section 237(a) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a) (2006).


CAMARILLO, 25 I&N Dec. 644 (BIA 2011)

ID 3734 (PDF)

Under the “stop-time rule” at section 240A(d)(1) of the Immigration and Nationality Act,
8 U.S.C. § 1229b(d)(1) (2006), any period of continuous residence or continuous physical
presence of an alien applying for cancellation of removal under section 240A is deemed
to end upon the service of a notice to appear on the alien, even if the notice to appear does
not include the date and time of the initial hearing.


ISLAM, 25 I&N Dec. 637 (BIA 2011)

ID 3733 (PDF)

(1) In determining whether an alien’s convictions for two or more crimes involving moral
turpitude arose out of a “single scheme of criminal misconduct” within the meaning
of section 237(a)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C.§ 1227(a)(2)(A)(ii) (2006), the Board will uniformly apply its interpretation of that
phrase in all circuits. Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992), followed.

(2) Where the respondentwas convicted in two counties of forgery and possession of stolen
property based on his use of multiple stolen credit or debit cards to obtain items of value
from several retail outlets on five separate occasions over the course of a day, his crimes
did not arise out of a “single scheme of criminal misconduct.”


GUERRERO, 25 I&N Dec. 631 (BIA 2011)

ID 3732 (PDF)

(1) Because solicitation to commit a “crime of violence” is itself a crime of violence under
18 U.S.C. § 16(b) (2006), a felony conviction for solicitation to commit assault with
a dangerous weapon in violation of section 11-1-9 of the General Laws of Rhode Island
is for a crime of violence and therefore an aggravated felony under section 101(a)(43)(F)
of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2006), where
a sentence of 1 year or more has been imposed.

(2) The offense of solicitation is not an aggravated felony under section 101(a)(43)(U)
of the Act because it is not an attempt or conspiracy.


RIVENS, 25 I&N Dec. 623 (BIA 2011)

ID 3731 (PDF)

(1) In order to establish that a returning lawful permanent resident alien is to be treated
as an applicant for admission to the United States, the Department of Homeland
Security has the burden of proving by clear and convincing evidence that one of the six
exceptions to the general rule for lawful permanent residents set forth at section
101(a)(13)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(C)
(2006), applies.

(2) The offense of accessory after the fact is a crime involving moral turpitude, but only if
the underlying offense is such a crime.


BAUTISTA, 25 I&N Dec. 616 (BIA 2011)

ID 3730 (PDF)

Attempted arson in the third degree in violation of sections 110 and 150.10 of the
New York Penal Law is an aggravated felony under section 101(a)(43)(E)(i) of the
Immigration andNationalityAct, 8U.S.C. § 1101(a)(43)(E)(i) (2006), even though the State
crime lacks the jurisdictional element in the applicable Federal arson offense. Matter
of Vasquez-Muniz
, 23 I&N Dec. 207 (BIA 2002), followed.

 


ZAMORA-MOLINA, 25 I&N Dec. 606 (BIA 2011)

ID 3729 (PDF)

(1) Section 201(f)(2) of the Immigration and NationalityAct, 8 U.S.C. § 1151(f)(2) (2006),
governs whether an alien who is the beneficiary of a visa petition according him or her
second-preference status as the child of a lawful permanent resident under section
203(a)(2)(A) of the Act, 8 U.S.C. § 1153(a)(2)(A) (2006), is an immediate relative upon
the naturalization of the petitioning parent.

(2) Pursuant to section 201(f)(2) of the Act, an alien’s actual, not adjusted, age on the date
of his or her parent’s naturalization determines whether he or she is an immediate
relative.

(3) Section 204(k)(2) of the Act, 8 U.S.C. § 1154(k)(2) (2006), does not allow an alien
to retain his or her 2A-preference status by opting out of automatic conversion to the
first-preference category as a son or daughter of a United States citizen upon his or her
parent’s naturalization.


CRUZ DE ORTIZ, 25 I&N Dec. 601 (BIA 2011)

ID 3728 (PDF)

Because section 246(a) of the Immigration and Nationality Act, 8 U.S.C. § 1256(a) (2006),
relates only to proceedings to rescind lawful permanent resident status acquired through
adjustment of status, the 5-year statute of limitations in that section is not applicable to bar
the removal of an alien who was admitted to the United States with an immigrant visa.
Garcia v. Attorney General of the United States, 553 F.3d 724 (3d Cir. 2009), distinguished.


FIGUEROA, 25 I&N Dec. 596 (BIA 2011)

ID 3727 (PDF)

When an application for Temporary Protected Status that has been denied by the
United States Citizenship and Immigration Services (“USCIS”) is renewed in removal
proceedings, the Immigration Judge may consider any material and relevant evidence,
regardless of whether the evidence was previously considered in proceedings before the
USCIS.


HERRERA DEL ORDEN, 25 I&N Dec. 589 (BIA 2011)

ID 3726 (PDF)

Until an alien who is arrested without a warrant is placed in formal proceedings by the
filing of a Notice to Appear (Form I-862), the regulation at 8 C.F.R. § 287.3(c) (2011) does
not require immigration officers to advise the alien that he or she has a right to counsel and
that any statements made during interrogation can subsequently be used against the alien.


E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011)

ID 3725 (PDF)

Until an alien who is arrested without a warrant is placed in formal proceedings by the filing of a Notice to Appear (Form I-862), the regulation at 8 C.F.R. § 287.3(c) (2011) does not require immigration officers to advise the alien that he or she has a right to counsel and that any statements made during interrogation can subsequently be used against the alien.


HENRIQUEZ RIVERA, 25 I&N Dec. 575 (BIA 2011)

ID 3724 (PDF)

When an application for Temporary Protected Status that has been denied by the
United States Citizenship and Immigration Services (“USCIS”) is renewed in removal
proceedings, the Immigration Judge may, in the appropriate circumstances, require the Department of Homeland Security to provide the application that the applicant filed with the
USCIS.


RAMON MARTINEZ, 25 I&N Dec. 571 (BIA 2011)

ID 3723 (PDF)

A violation of section 220 of the California Penal Code is categorically a crime
of violence under 18 U.S.C. §§ 16(a) and (b) (2006).


BUSTAMANTE, 25 I&N Dec. 564 (BIA 2011)

ID 3722 (PDF)

The bar to cancellation of removal in section 240A(b)(1)(C) of the Immigration and
Nationality Act, 8 U.S.C. § 1229b(b)(1)(C) (2006), which precludes an alien who has been
convicted of an offense under section 212(a)(2) of the Act, 8 U.S.C. § 1182(a)(2) (2006),from establishing eligibility for relief, may not be overcome by a waiver under section
212(h) of the Act.


SALOMON, 25 I&N Dec. 559 (BIA 2011)

ID 3721 (PDF)

Nonidentical reciprocal discipline of an attorney does not amount to a “grave injustice”
under 8 C.F.R. § 1003.103(b)(2)(iii) (2011) where the attorney has engaged in wide-ranging
misconduct and was disciplined in multiple jurisdictions.


RUIZ-LOPEZ, 25 I&N Dec. 551 (BIA 2011)

ID 3720 (PDF)

(1) The offense of driving a vehicle in a manner indicating a wanton or willful disregard for
the lives or property of others while attempting to elude a pursuing police vehicle
in violation of section 46.61.024 of the Revised Code of Washington is a crime involving
moral turpitude.

(2) The maximum sentence possible for an offense, rather than the standard range
of sentencing under a State’s sentencing guidelines, determines an alien’s eligibility for
the “petty offense” exception under section 212(a)(2)(A)(ii)(II) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (2006).


LE, 25 I&N Dec. 541 (BIA 2011)

ID 3719 (PDF)

A derivative child of a nonimmigrant fiancé(e) visa holder under section 101(a)(15)(K)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(K)(iii) (2006), is not ineligible for adjustment of status simply by virtue of having turned 21 after admission to the United States on a K-2 nonimmigrant visa.


N-C-M-, 25 I&N Dec. 535 (BIA 2011)

ID 3718 (PDF)

To be eligible for late initial registration for Temporary Protected Status (“TPS”),
an applicant filing as the “child of an alien currently eligible to be a TPS registrant” must
establish only that he or she qualified as a “child” at the time of the initial registration period,
not at the time the application was filed.


N-M-, 25 I&N Dec. 526 (BIA 2011)

ID 3717 (PDF)

(1) Opposition to state corruption may, in some circumstances, constitute the expression
of political opinion or give a persecutor a reason to impute such an opinion to an alien.

(2) For claims arising under the REAL ID Act of 2005, Division B of Pub. L. No. 109-13,
119 Stat. 302, a showing of retaliation for opposing governmental corruption is, by itself,
insufficient to establish eligibility for relief; instead, an alien must persuade the trier
of fact that his or her actual or imputed anticorruption belief (or other protected trait) was
one central reason for the harm.

(3) In making the nexus determination, an Immigration Judge should consider: (1) whether
and to what extent the alien engaged in activities that could be perceived as expressions
of anticorruption beliefs; (2) any direct or circumstantial evidence that the persecutor was
motivated by the alien’s actual or perceived anticorruption beliefs; and (3) any evidence
regarding the pervasiveness of corruption within the governing regime.


E-R-M- & L-R-M-, 25 I&N Dec. 520 (BIA 2011)

ID 3716 (PDF)

(1) Section 235(b)(1)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b)(1)(A)(i) (2006), does not limit the prosecutorial discretion of the Department
of Homeland Security to place arriving aliens in removal proceedings under section 240
of the Act, 8 U.S.C. § 1229a (2006).

(2) The fact that an Immigration Judge has no jurisdiction over applications for
adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966,
Pub. L. No. 89-732, 80 Stat. 1161, as amended, does not negate his or her jurisdiction over
the removal proceedings of arriving Cuban aliens under section 240 of the Act.


ECHEVERRIA, 25 I&N Dec. 512 (BIA 2011)

ID 3715 (PDF)

(1) A late initial registrant for Temporary Protected Status (“TPS”) under 8 C.F.R. § 1244.2(f)(2) (2011) must independently meet all initial registration requirements of TPS.

(2) One of the initial registration requirements applicable to a late initial registrant is that
the applicant must be a national (or, in the case of an alien having no nationality, a habitual
resident) of a foreign state currently designated for TPS by the Attorney General.


STRYDOM, 25 I&N Dec. 507 (BIA 2011)

ID 3714 (PDF)

A conviction under section 21-3843(a)(1) of the Kansas Statutes Annotated for violation
of the no-contact provision of a protection order issued pursuant to section 60-3106 of the
Kansas Protection from Abuse Act constitutes a deportable offense under section
237(a)(2)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(ii) (2006).


A-G-G-, 25 I&N Dec. 486 (BIA 2011)

ID 3713 (PDF)

(1) Pursuant to section 208(b)(2)(A)(vi) of the Immigration and Nationality Act, 8 U.S.C.§ 1158(b)(2)(A)(vi) (2006), and 8 C.F.R. § 1208.15 (2011), the framework for making
firm resettlement determinations focuses exclusively on the existence of an offer
of permanent resettlement and allows for the consideration of direct and indirect evidence.

(2) The Department of Homeland Security has the initial burden to make a prima facie
showing of an offer of firm resettlement by presenting direct evidence of an alien’s ability
to stay in a country indefinitely; when direct evidence is unavailable, indirect evidence
may be used if it has a sufficient level of clarity and force to establish that the alien is able
to permanently reside in the country.

(3) An asylum applicant can rebut evidence of a firm resettlement offer by showing
by a preponderance of the evidence that such an offer has not been made or that the
applicant’s circumstances would render him or her ineligible for such an offer
of permanent residence.

(4) Evidence that permanent resident status is available to an alien under the law of the
country of proposed resettlement may be sufficient to establish a prima facie showing
of an offer of firm resettlement, and a determination of firm resettlement is not contingent
on whether the alien applies for that status. Matter of Soleimani, 20 I&N Dec. 99 (BIA
1989), modified.


DORMAN, 25 I&N Dec. 485 (A.G. 2011)

ID 3712 (PDF)

The Attorney General vacated the decision of the Board of Immigration Appeals and
remanded for the Board to make specific findings with regard to the respondent’s eligibility
for cancellation of removal.


M-A-M-, 25 I&N Dec. 474 (BIA 2011)

ID 3711 (PDF)

(1) Aliens in immigration proceedings are presumed to be competent and, if there are
no indicia of incompetency in a case, no further inquiry regarding competency is required.

(2) The test for determining whether an alien is competent to participate in immigration
proceedings is whether he or she has a rational and factual understanding of the nature and
object of the proceedings, can consult with the attorney or representative if there is one,
and has a reasonable opportunity to examine and present evidence and cross-examine
witnesses.

(3) If there are indicia of incompetency, the Immigration Judge must make further inquiry
to determine whether the alien is competent for purposes of immigration proceedings.

(4) If the alien lacks sufficient competency to proceed, the Immigration Judge will evaluate
appropriate safeguards.

(5) Immigration Judges must articulate the rationale for their decisions regarding
competency issues.

 


CUBOR, 25 I&N Dec. 470 (BIA 2011)

ID 3710 (PDF)

Personal service of a Notice to Appear (Form I-862) on a minor who is 14 years of age
or older at the time of service is effective, and the regulations do not require that notice also
be served on an adult with responsibility for the minor.


AHORTALEJO-GUZMAN, 25 I&N Dec. 465 (BIA 2011)

ID 3709 (PDF)

Evidence outside of an alien’s record of conviction may properly be considered
in determining whether the alien has been convicted of a crime involving moral turpitude
only where the conviction record itself does not conclusively demonstrate whether the alien
was convicted of engaging in conduct that constitutes a crime involving moral turpitude. Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), followed


D-R-, 25 I&N Dec. 445 (BIA 2011)

ID 3708 (PDF)

(1) The respondent’s deliberate omission from his refugee application that he was a special
police officer during the Bosnian War, during which time he served in an entity that was
part of the Armed Forces of the Republic of Srpska, could have affected or influenced the
Government’s decision whether to grant him refugee status and was therefore a willful
misrepresentation of a material fact.

(2) The respondent is removable under section 237(a)(4)(D) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(4)(D) (2006), where the totality of the record
supported the conclusion that he assisted in the extrajudicial killing of 200 Bosnian
Muslims that his unit was involved in capturing, including evidence of his command
responsibility, his presence, his platoon’s active participation, and the finding that
he must have been aware that many other Bosnian Muslims who were similarly situated
had been executed nearby several days earlier.

(3) An Immigration Judge may make reasonable inferences from direct and circumstantial
evidence in the record as a whole and is not required to accept a respondent’s account
where other plausible views of the evidence are supported by the record.

(4) An expert witness is broadly defined as one who is qualified as an expert by knowledge,
skill, experience, training, or education and who has specialized knowledge that will
assist the Immigration Judge to understand the evidence or to determine a fact in issue.


SESAY, 25 I&N Dec. 431 (BIA 2011)

ID 3707 (PDF)

(1) Under section 245(d) of the Immigration and Nationality Act, 8 U.S.C. § 1255(d) (2006),
a fiancé(e) visa holder can only adjust status based on the marriage to the fiancé(e)
petitioner. Matter of Zampetis, 14 I&N Dec. 125 (Reg. Comm’r 1972), superseded.

(2) A fiancé(e) visa holder whose bona fide marriage to the fiancé(e) visa petitioner is more
than 2 years old at the time the adjustment application is adjudicated is not subject to the
provisions for conditional resident status under section 216 of the Act, 8 U.S.C. § 1186a
(2006).

(3) A fiancé(e) visa holder satisfies the visa eligibility and visa availability requirements of
section 245(a) of the Act on the date he or she is admitted to the United States as a K-1
nonimmigrant, provided that the fiancé(e) enters into a bona fide marriage with the
fiancé(e) petitioner within 90 days.

(4) A fiancé(e) visa holder may be granted adjustment of status under sections 245(a) and
(d) of the Act, even if the marriage to the fiancé(e) visa petitioner does not exist at the time
that the adjustment application is adjudicated, if the applicant can demonstrate that he or
she entered into a bona fide marriage within the 90-day period to the fiancé(e) visa petitioner.


VO, 25 I&N Dec. 426 (BIA 2011)

ID 3706 (PDF)

Where the substantive offense underlying an alien’s conviction for an attempt offense
is a crime involving moral turpitude, the alien is considered to have been convicted
of a crime involving moral turpitude for purposes of section 237(a)(2)(A) of the Immigration
and Nationality Act, 8 U.S.C. § 1227(a)(2)(A) (2006), even though that section makes
no reference to attempt offenses.


GUEVARA ALFARO, 25 I&N Dec. 417 (BIA 2011)

ID 3705 (PDF)

(1) Any intentional sexual conduct by an adult with a child involves moral turpitude,
as long as the perpetrator knew or should have known that the victim was under the
age of 16. Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), followed.
Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. 2007), not followed.

(2) Absent otherwise controlling authority, Immigration Judges and the Board
of Immigration Appeals are bound to apply all three steps of the procedural framework
set forth by the Attorney General in Matter of Silva-Trevino for determining whether
a particular offense constitutes a crime involving moral turpitude.


NELSON, 25 I&N Dec. 410 (BIA 2011)

ID 3704 (PDF)

Once an alien has been convicted of an offense that stops the accrual of the 7-year period
of continuous residence required for cancellation of removal under section 240A(a) of the
Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2006), section 240A(d)(1) of the Act
does not permit such residence to restart simply because the alien has departed from, and
returned to, the United States.


ALYAZJI, 25 I&N Dec. 397 (BIA 2011)

ID 3703 (PDF)

In general, an alien’s conviction for a crime involving moral turpitude triggers
removability under section 237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C.§ 1227(a)(2)(A)(i) (2006), only if the alien committed the crime within 5 years after the date
of the admission by virtue of which he or she was then present in the United States. Matter
of Shanu, 23 I&N Dec. 754 (BIA 2005), overruled in part.


SOSA VENTURA, 25 I&N Dec. 391 (BIA 2010)

ID 3702 (PDF)

(1) A grant of Temporary Protected Status (“TPS”) waives certain grounds of
inadmissibility or deportability solely for the limited purpose of permitting an alien
to remain and work temporarily in the United States for the period of time that TPS
is effective.

(2) It is not proper to terminate an alien’s removal proceedings based on a grant of TPS.


SORAM, 25 I&N Dec. 378 (BIA 2010)

ID 3701 (PDF)

The crime of unreasonably placing a child in a situation that poses a threat of injury to the
child’s life or health in violation of section 18-6-401(1)(a) of the Colorado Revised Statutes
is categorically a crime of child abuse under section 237(a)(2)(E)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006), even though no proof of actual harm
or injury to the child is required. Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA
2008), clarified.


CHAWATHE, 25 I&N Dec. 369 (AAO 2010)

ID 3700 (PDF)

(1) For purposes of establishing the requisite continuous residence in naturalization
proceedings pursuant to section 316(b) of the Immigration and Nationality Act, 8 U.S.C. § 1427(b) (2006), a publicly held corporation may be deemed an “American firm
or corporation” if the applicant establishes that the corporation is both incorporated
in the United States and trades its stock exclusively on U.S. stock exchange markets.

(2) When an applicant’s employer is a publicly held corporation that is incorporated in the
United States and trades its stock exclusively on U.S. stock markets, the applicant need
not demonstrate the nationality of the corporation by establishing the nationality of those
persons who own more than 51% of the stock of that firm. Matter of Warrach, 17 I&N
Dec. 285, 286-87 (Reg. Comm’r 1979), clarified.

(3) In most administrative immigration proceedings, the applicant must prove
by a preponderance of evidence that he or she is eligible for the benefit sought.

(4) Even if the director has some doubt as to the truth, if the petitioner submits relevant,
probative, and credible evidence that leads the director to believe that the claim is “more
likely than not” or “probably” true, the applicant has satisfied the standard of proof.
Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm’r 1989), followed.

(5) If the director can articulate a material doubt, it is appropriate for the director to either
request additional evidence or, if that doubt leads the director to believe that the claim
is probably not true, deny the application or petition.


AL WAZZAN, 25 I&N Dec. 359 (AAO 2010)

ID 3699 (PDF)

(1) Although section 204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j)
(2000), provides that an employment-based immigrant visa petition shall remain valid
with respect to a new job if the beneficiary’s application for adjustment of status has
been filed and remained unadjudicated for 180 days, the petition must have been “valid”
to begin with if it is to “remain valid with respect to a new job.”

(2) To be considered “valid” in harmony with related provisions and with the statute
as a whole, the petition must have been filed for an alien who is “entitled” to the
requested classification and that petition must have been “approved” by a U.S.
Citizenship and Immigration Services (“USCIS”) officer pursuant to his or her authority
under the Act.

(3) Congress specifically granted USCIS the sole authority to make eligibility
determinations for immigrant visa petitions under section 204(b) of the Act.
(4) An unadjudicated immigrant visa petition is not made “valid” merely through the act
of filing the petition with USCIS or through the passage of 180 days.


GRUENANGERL, 25 I&N Dec. 351 (BIA 2010)

ID 3698 (PDF)

The crime of bribery of a public official in violation of 18 U.S.C. § 201(b)(1)(A) (2006)
is not an offense “relating to” commercial bribery and is therefore not an aggravated
felony under section 101(a)(43)(R) of the Immigration and Nationality Act, 8 U.S.C.
§ 1101(a)(43)(R) (2006).


C-T-L-, 25 I&N Dec. 341 (BIA Dec. 2010)

ID 3697 (PDF)

The “one central reason” standard that applies to asylum applications pursuant to section
208(b)(1)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(B)(i) (2006),
also applies to applications for withholding of removal under section 241(b)(3)(A) of the
Act, 8 U.S.C. § 1231(b)(3)(A) (2006).


ANYELO, 25 I&N Dec. 337 (BIA 2010)

ID 3696 (PDF)

The holding in Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001), as to the notice required
to authorize the entry of an in absentia order, is applicable to cases arising in the Eleventh
Circuit. Dominguez v. U.S. Att’y Gen., 284 F.3d 1258 (11th Cir. 2002), distinguished.


GARCIA, 25 I&N Dec. 332 (BIA 2010)

ID 3695 (PDF)

A conviction for a single crime involving moral turpitude that qualifies as a petty offense
is not for an “offense referred to in section 212(a)(2)” of the Immigration and Nationality
Act, 8 U.S.C. § 1182(a)(2) (2006), for purposes of triggering the “stop-time” rule in section
240A(d)(1) of the Act, 8 U.S.C. § 1229b(d)(1) (2006), even if it renders the alien removable
under section 237(a)(2)(A)(i) of the Act, 8 U.S.C. §1227(a)(2)(A)(i) (2006).


LEGASPI, 25 I&N Dec. 328 (BIA 2010)

ID 3694 (PDF)

An alien is not independently “grandfathered” for purposes of adjustment of status under
section 245(i) of the Immigration and Nationality Act, 8 U.S.C. 1255(i) (2006), simply
by virtue of marriage to another alien who is “grandfathered” under section 245(i) as the
result of having been a derivative beneficiary of a visa petition.


X-M-C-, 25 I&N Dec. 322 (BIA 2010)

ID 3693 (PDF)

(1) A determination that an alien has filed a frivolous application for asylum, pursuant
to section 208(d)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1158(d)(6)
(2006), can be made in the absence of a final decision on the merits of the asylum
application.

(2) Withdrawal of an alien’s asylum application after the required warnings and safeguards have been provided does not preclude a finding that the application is frivolous.


CASILLAS-TOPETE, 25 I&N Dec. 317 (BIA 2010)

ID 3692 (PDF)

An alien is removable under section 237(a)(1)(A) of the Immigration and Nationality Act,
8 U.S.C. § 1227(a)(1)(A) (2006), as one who was inadmissible at the time of entry
or adjustment of status pursuant to section 212(a)(2)(C) of the Act, 8 U.S.C. § 1182(a)(2)(C)
(2006), where an appropriate immigration official knows or has reason to believe that the
alien is a trafficker in controlled substances at the time of admission to the United States.
Matter of Rocha, 20 I&N Dec. 944 (BIA 1995), modified.


PEDROZA, 25 I&N Dec. 312 (BIA 2010)

ID 3691 (PDF)

An alien’s conviction for a crime involving moral turpitude does not render him ineligible
for cancellation of removal under section 40A(b)(1)(C) of the Immigration and Nationality
Act, 8 U.S.C. § 1229b(b)(1)(C) (2006), if his crime is punishable by imprisonment for
a period of less than a year and qualifies for the petty offense exception under section
212(a)(2)(A)(ii)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (2006). Matter of Cortez,
25 I&N Dec. 301 (BIA 2010), followed.


CORTEZ , 25 I&N Dec. 301 (BIA 2010)

ID 3690 (PDF)

(1) An alien who has been convicted of a crime involving moral turpitude
for which a sentence of a year or longer may be imposed has been convicted
of an offense “described under” section 237(a)(2) of the Act, 8 U.S.C. § 1227(a)(2)
(2006), and is therefore ineligible for cancellation of removal under section
240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C) (2006), regardless of the alien’s
eligibility for the petty offense exception under section 212(a)(2)(A)(ii)(II) of the Act,
8 U.S.C. § 1182(a)(2)(A)(ii)(II) (2006). Matter of Almanza, 24 I&N Dec. 771 (BIA
2009), clarified. Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008); Matter
of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007); and Matter of Garcia-Hernandez,
23 I&N Dec. 590 (BIA 2003), explained.

(2) In determining which offenses are “described under” sections 212(a)(2), 237(a)(2), and
237(a)(3) of the Act for purposes of section 240A(b)(1)(C) of the Act, only language
specifically pertaining to the criminal offense, such as the offense itself and the sentence
imposed or potentially imposed, should be considered.

(3) The respondent’s misdemeanor conviction for welfare fraud in violation of section
10980(c)(2) of the California Welfare and Institutions Code rendered her ineligible for
cancellation of removal under section 240A(b)(1)(C) of the Act, because it was for
a crime involving moral turpitude for which she could have been sentenced to a year
in county jail and was therefore for an offense “described under” section 237(a)(2) of the
Act.


REZA, 25 I&N Dec. 296 (BIA 2010)

ID 3689 (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) (2006), for purposes of establishing that an alien has accrued the
requisite 7-year period 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) (2006).


QUILANTAN, 25 I&N Dec. 285 (BIA 2010)

ID 3688 (PDF)

For purposes of establishing eligibility for adjustment of status under section 245(a) of the
Immigration and Nationality Act, 8 U.S.C. § 1255(a) (2006), an alien seeking to show that
he or she has been “admitted” to the United States pursuant to section 101(a)(13)(A) of the
Act, 8 U.S.C. § 1101(a)(13)(A) (2006), need only prove procedural regularity in his or her
entry, which does not require the alien to be questioned by immigration authorities or be
admitted in a particular status. Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980),
reaffirmed.


VELASQUEZ, 25 I&N Dec. 278 (BIA 2010)

ID 3687 (PDF)

The misdemeanor offense of assault and battery against a family or household member
in violation of section 18.2-57.2(A) of the Virginia Code Annotated is not categorically
a crime of violence under 18 U.S.C. § 16(a) (2006) and therefore not categorically a crime
of domestic violence within the meaning of section 237(a)(2)(E)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006).


SANCHEZ-CORNEJO, 25 I&N Dec. 273 (BIA 2010)

ID 3686 (PDF)

The offense of delivery of a simulated controlled substance in violation of Texas law is not
an aggravated felony, as defined by section 101(a)(43)(B) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2006), but it is a violation of a law relating
to a controlled substance under former section 241(a)(2)(B)(i) of the Act, 8 U.S.C. § 1251(a)(2)(B)(i) (1994).


GARCIA ARREOLA, 25 I&N Dec. 267 (BIA 2010)

ID 3685 (PDF)

Section 236(c) of the Immigration and Nationality Act, 8 U.S.C. § 1226(c) (2006),
requires mandatory detention of a criminal alien only if he or she is released from non-DHS
custody after the expiration of the Transition Period Custody Rules (“TPCR”) and only
where there has been a post-TPCR release that is directly tied to the basis for detention under
sections 236(c)(1)(A)–(D) of the Act. Matter of Saysana, 24 I&N Dec. 602 (BIA 2008),
overruled; Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999), modified.


INTERIANO-ROSA, 25 I&N Dec. 264 (BIA 2010)

ID 3684 (PDF)

When an application for relief is timely filed but supporting documents are not submitted
within the time established, the Immigration Judge may deem the opportunity to file the
documents to be waived but may not deem the application itself abandoned.


CASTILLO-PADILLA, 25 I&N Dec. 257 (BIA 2010)

ID 3683 (PDF)

(1) Conditional parole under section 236(a)(2)(B) of the Immigration and Nationality Act,
8 U.S.C. § 1226(a)(2)(B) (2006), is a distinct and different procedure from parole under
section 212(d)(5)(A) of the Act, 8 U.S.C. § 1182(d)(5)(A) (2006).

(2) An alien who was released from custody on conditional parole pursuant to section
236(a)(2)(B) of the Act has not been “paroled into the United States” for purposes
of establishing eligibility for adjustment of status under section 245(a) of the Act,
8 U.S.C. § 1255(a) (2006).


MENDEZ-ORELLANA, 25 I&N Dec. 254 (BIA 2010)

ID 3682 (PDF)

(1) In removal proceedings, the antique firearm exception in 18 U.S.C. § 921(a)(3) (2006)
is an affirmative defense that must be sufficiently raised by an alien charged under section
237(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(C) (2006),
as an alien who has been convicted of an offense involving a firearm.

(2) Where the Department of Homeland Security has presented evidence that an alien has
been convicted of an offense involving a firearm, it has met its burden of presenting clear
and convincing evidence of deportability, and the burden then shifts to the respondent
to show that the weapon was, in fact, antique.


MONGES, 25 I&N Dec. 246 (BIA 2010)

ID 3681 (PDF)

(1) The 90-day time limitation for filing a motion to reopen in 8 C.F.R. § 1003.23(b)(1)
(2010) applies to motions to reopen in absentia deportation orders for the purpose
of adjusting status, whether filed before or after the 1996 promulgation of the regulations.

(2) The 5-year limitation on discretionary relief for failure to appear at deportation
proceedings under former section 242B(e)(1) of the Immigration and Nationality Act,
8 U.S.C. § 1252b(e)(1) (1994), is not in conflict with, and does not provide an exception
to, the 90-day deadline for filing a motion to reopen in 8 C.F.R. § 1003.23(b)(1).


B-Y-, 25 I&N Dec. 236 (BIA 2010)

ID 3680 (PDF)

(1) In making a frivolousness determination, an Immigration Judge may incorporate
by reference any factual findings made in support of an adverse credibility finding,
so long as the Immigration Judge makes explicit findings that the incredible aspects of the
asylum application were material and were deliberately fabricated. Matter of Y-L-,
24 I&N Dec. 151 (BIA 2007), clarified.

(2) In considering an asylum applicant’s explanations for inconsistencies or discrepancies,
an Immigration Judge making a frivolousness determination must separately address the
applicant’s explanations in the context of how they may have a bearing on the materiality
and deliberateness requirements unique to that determination.

(3) When the required frivolousness warnings have been given to an asylum applicant prior
to the merits hearing, the Immigration Judge is not required to afford additional warnings
or to seek further explanation in regard to inconsistencies that have become obvious
during the course of the hearing.


ALANIA, 25 I&N Dec. 231 (BIA 2010)

ID 3679 (PDF)

Aliens who are otherwise eligible to adjust status under section 245(i) of the Immigration
and Nationality Act, 8 U.S.C. § 1255(i) (2006), are not subject to the unauthorized
employment restrictions of sections 245(c) and the exception for such employment in section
245(k) that apply to applications for adjustment of status under section 245(a).


RICHARDSON, 25 I&N Dec. 226 (BIA 2010)

ID 3678 (PDF)

(1) The term “conspiracy” in section 101(a)(43)(U) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(U) (2006), is not limited to conspiracies that require the
commission of an overt act in furtherance of the conspiracy by one of the conspirators.

(2) An alien who was only convicted of conspiracy to commit an aggravated felony and
is removable on the basis of that conviction under section 101(a)(43)(U) of the Act may
not also be found removable for the underlying substantive offense, even though the record
of conviction shows that the conspirators actually committed the substantive offense.


KOLJENOVIC, 25 I&N Dec. 219 (BIA 2010)

H-L-H- & Z-Y-Z-, 25 I&N Dec. 209 (BIA 2010)

ID 3676 (PDF)

(1) Whether an alien has presented sufficient evidence to establish a well-founded fear
of persecution is a legal determination that is reviewed de novo by the Board
of Immigration Appeals.

(2) In order to determine, under de novo review, whether specific facts are sufficient
to meet a legal standard such as a “well-founded fear,” the Board has authority to give
different weight to the evidence from that given by the Immigration Judge.

(3) State Department reports on country conditions are highly probative evidence and
are usually the best source of information on conditions in foreign nations.

(4) The evidence presented by the respondents, considered in light of State Department
country reports specific to Fujian Province, failed to establish a reasonable possibility
that either respondent would be subject to forced sterilization due to having two children
born in the United States or would face penalties or sanctions so severe that they would
rise to the level of persecution.


PEREZ RAMIREZ, 25 I&N Dec. 203 (BIA 2010)

MILIAN, 25 I&N Dec. 197 (BIA 2010)

ID 3674 (PDF)

In applying the modified categorical approach to assess an alien’s conviction, it is proper
to consider the contents of police reports as part of the record of conviction if they were
specifically incorporated into the guilty plea or were admitted by the alien during the
criminal proceedings.


T-M-H- & S-W-C-, 25 I&N Dec. 193 (BIA 2010)

DIAZ AND LOPEZ, 25 I&N Dec. 188 (BIA 2010)

ID 3672 (PDF)

An alien who is inadmissible under section 212(a)(9)(C)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(a)(9)(C)(i) (2006), is ineligible for adjustment of status
under section 245(i) of the Act, 8 U.S.C. § 1255(i) (2006). Matter of Briones, 24 I&N Dec.
355 (BIA 2007), reaffirmed.


MORALES, 25 I&N Dec. 186 (BIA 2010)

ID 3671 (PDF)

A stepparent who qualifies as a “parent” under section 101(b)(2) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(b)(2) (2006), at the time of the proceedings is a qualifying
relative for purposes of establishing exceptional and extremely unusual hardship for
cancellation of removal under section 240A(b)(1)(D) of the Act, 8 U.S.C. § 1229b(b)(1)(D)
(2006).


ROSE, 25 I&N Dec. 181 (BIA 2010)

ID 3670 (PDF)

A conditional permanent resident under section 216(a) of the Immigration and Nationality
Act, 8 U.S.C. § 1186a(a) (2006), who is seeking to remove the conditional basis of that
status and who has timely filed the petition and appeared for the interview required under
section 216(c)(1), does not need a separate section 216(c)(4) hardship waiver if the
petitioning spouse died during the 2-year conditional period.


MARCAL NETO, 25 I&N Dec. 169 (BIA 2010)

ID 3669 (PDF)

Immigration Judges have authority to determine whether the validity of an alien’s
approved employment-based visa petition is preserved under section 204(j) of the
Immigration and Nationality Act, 8 U.S.C. § 1154(j) (2006), after the alien’s change in jobs
or employers. Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005), overruled.


GAMERO, 25 I&N Dec. 164 (BIA 2010)

ID 3668 (PDF)

(1) Pursuant to 8 C.F.R. § 1240.26(c)(3) (2010), an Immigration Judge who grants an alien
voluntary departure must advise the alien that proof of posting of a bond with the
Department of Homeland Security must be submitted to the Board of Immigration
Appeals within 30 days of filing an appeal and that the Board will not reinstate a period
of voluntary departure in its final order unless the alien has timely submitted sufficient
proof that the required bond has been posted.

(2) Where the Immigration Judge did not provide all the advisals that are required upon
granting voluntary departure and the respondent failed to submit timely proof to the
Board that a voluntary departure bond had been posted, the record was remanded for the
Immigration Judge to grant a new period of voluntary departure and to provide the
required advisals.


KRONEGOLD, 25 I&N Dec. 157 (BIA 2009)

ID 3667 (PDF)

(1) Where disciplinary proceedings are based on a final order of suspension or disbarment,
the order creates a rebuttable presumption that reciprocal disciplinary sanctions
should follow, which can be rebutted only if the attorney demonstrates by clear and
convincing evidence that the underlying disciplinary proceeding resulted in a deprivation
of due process, that there was an infirmity of proof establishing the misconduct, or that
discipline would result in a grave injustice.

(2) In determining whether to impose reciprocal discipline on an attorney who has been
suspended or disbarred by a State court, the Board of Immigration Appeals conducts
a deferential review of the proceedings that resulted in the initial discipline.

(3) Where the respondent was disbarred in New York, which precludes an attorney from
seeking reinstatement for 7 years, and he failed to rebut the presumption that reciprocal
discipline should be imposed, his suspension from practice before the Board, the
Immigration Courts, and the Department of Homeland Security for 7 years was
an appropriate sanction.


MARTINEZ-SERRANO, 25 I&N Dec. 151 (BIA 2009)

ID 3666 (PDF)

(1) An alien’s conviction for aiding and abetting other aliens to evade and elude
examination and inspection by immigration officers in violation of 18 U.S.C. § 2(a) (2006)
and 8 U.S.C. § 1325(a)(2) (2006) establishes that the convicted alien is removable under
section 237(a)(1)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(E)(i)
(2006).

(2) Where the facts underlying the respondent’s conviction demonstrated that she knowingly
assisted other aliens to enter the United States in violation of law, clear and convincing
evidence established that she is removable under section 237(a)(1)(E)(i) of the Act.


PORTILLO-GUTIERREZ, 25 I&N Dec. 148 (BIA 2009)

ID 3665 (PDF)

A stepchild who meets the definition of a “child” under section 101(b)(1)(B) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(B) (2006), is a qualifying relative
for purposes of establishing exceptional and extremely unusual hardship for cancellation
of removal under section 240A(b)(1)(D) of the Act, 8 U.S.C. § 1229b(b)(1)(D) (2006).


VELASCO, 25 I&N Dec. 143 (BIA 2009)

ID 3664 (PDF)

(1) The voluntary departure regulations at 8 C.F.R. § 1240.26(c)(4), Nt. (2009), which took
effect on January 20, 2009, and superseded Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA
2006), do not apply retroactively.

(2) Where an Immigration Judge granted voluntary departure prior to January 20, 2009, and
the alien failed to timely post the voluntary departure bond required by section 240B(b)(3)
of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b)(3) (2006), the former
regulatory scheme, as interpreted in Matter of Diaz-Ruacho, remains applicable, and the
penalties imposed by section 240B(d)(1) for failure to depart within the voluntary
departure period do not apply.

(3) Pursuant to 8 C.F.R. § 1240.26(c)(3)(ii), Nt., a voluntary departure order entered
by an Immigration Judge on or after January 20, 2009, will not be reinstated by the Board
of Immigration Appeals in its final order on appeal unless the alien provides the Board,
within 30 days of filing the appeal, sufficient proof that the voluntary departure bond was
timely posted with the Department of Homeland Security.


URENA, 25 I&N Dec. 140 (BIA 2009)

ID 3663 (PDF)

(1) Dangerous aliens are properly detained without bond pending the completion
of proceedings to remove them from the United States.

(2) Only if an alien has established that he would not pose a danger to property or persons
should an Immigration Judge decide the amount of bond necessary to ensure the alien’s
presence at proceedings to remove him from the United States.

(3) Where an Immigration Judge characterized an alien seeking release from custody as a “potential” danger to the community but ordered him released upon the posting
of a bond amount, the record was remanded for the Immigration Judge to clarify whether
the alien met his burden of proving that his release on bond would not pose a danger
to property or persons.


RAJAH, 25 I&N Dec. 127 (BIA 2009)

ID 3662 (PDF)

(1) In determining whether good cause exists to continue removal proceedings to await
the adjudication of a pending employment-based visa petition or labor certification,
an Immigration Judge should determine the alien’s place in the adjustment of status
process and consider the applicable factors identified in Matter of Hashmi, 24 I&N Dec.
785 (BIA 2009), and any other relevant considerations.

(2) An alien’s unopposed motion to continue ongoing removal proceedings to await the
adjudication of a pending employment-based visa petition should generally be granted
if approval of the visa petition would render him prima facie eligible for adjustment
of status.

(3) The pendency of a labor certification is generally not sufficient to warrant a grant
of a continuance.


MARTINEZ ESPINOZA, 25 I&N Dec. 118 (BIA 2009)

ID 3661 (PDF)

(1) An alien may be rendered inadmissible under section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2006), on the basis of a conviction for possession or use of drug paraphernalia.

(2) An alien who is inadmissible under section 212(a)(2)(A)(i)(II) of the Act based on a drug paraphernalia offense may qualify for a waiver of inadmissibility under section 212(h) of the Act if that offense “relates to a single offense of simple possession of 30 grams or less of marijuana.”


MORENO-ESCOBOSA, 25 I&N Dec. 114 (BIA 2009)

ID 3660 (PDF)

(1) The date of an alien’s plea agreement, rather than the date of sentencing, is controlling
in determining whether the alien is eligible for a waiver under former section 212(c)
of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994).

(2) The decision of the United States Court of Appeals for the Ninth Circuit in Abebe
v. Mukasey
, 554 F.3d 1203 (9th Cir. 2009), does not invalidate 8 C.F.R. § 1212.3 (2009),
so as to preclude an alien who seeks to waive a deportation ground from establishing
eligibility for section 212(c) relief.


YAURI, 25 I&N Dec. 103 (BIA 2009)

ID 3659 (PDF)

(1) With a narrow exception not applicable to this case, the United States Citizenship and
Immigration Services (“USCIS”) has exclusive jurisdiction to adjudicate an arriving
alien’s application for adjustment of status under 8 C.F.R. § 245.2(a)(1) (2009) and agrees
that it retains jurisdiction to adjudicate the application even where an unexecuted
administratively final order of removal remains outstanding.

(2) The Board of Immigration Appeals generally lacks authority to reopen the proceedings
of aliens under final orders of exclusion, deportation, or removal who seek to pursue relief
over which the Board and the Immigration Judges have no jurisdiction, especially where
reopening is sought simply as a mechanism to stay the final order while the collateral
matter is resolved by the agency or court having jurisdiction to do so.

(3) With regard to untimely or number-barred motions to reopen, the Board will not
generally exercise its discretion to reopen proceedings sua sponte for an arriving alien
to pursue adjustment of status before the USCIS.


CARRILLO, 25 I&N Dec. 99 (BIA 2009)

ID 3658 (PDF)

In determining whether an alien whose status was adjusted pursuant to section 1 of the
Cuban Refugee Adjustment Act of November 1, 1966, Pub. L. No. 89-732, 80 Stat. 1161,
is removable as an alien who has been convicted of a crime involving moral turpitude
committed within 5 years after the alien’s “date of admission,” the admission date
is calculated according to the rollback provision of section 1, rather than the date adjustment
of status was granted.


GARCIA-GARCIA, 25 I&N Dec. 93 (BIA 2009)

ID 3657 (PDF)

(1) An Immigration Judge has authority under section 236(a)(2)(A) of the Immigration and
Nationality Act, 8 U.S.C. § 1226(a)(2)(A) (2006), and 8 C.F.R. § 1236.1(d)(1) (2009)
to review and consider whether to modify the conditions of release imposed on an alien
by the Department of Homeland Security (“DHS”).

(2) Where the respondent filed an application with the Immigration Judge to ameliorate
the terms of release within 7 days of his release from custody by the DHS, the Immigration
Judge had jurisdiction to review and modify the condition placed on the respondent’s
release that he participate in the Intensive Supervision Appearance Program.


SILITONGA, 25 I&N Dec. 89 (BIA 2009)

ID 3656 (PDF)

Under 8 C.F.R. §§ 245.2(a)(1) and 1245.2(a)(1)(ii) (2009), Immigration Judges have
no jurisdiction to adjudicate an application filed by an arriving alien seeking adjustment
of status, with the limited exception of an alien who has been placed in removal proceedings
after returning to the United States pursuant to a grant of advance parole to pursue
a previously filed application.


G-D-M-, 25 I&N Dec. 82 (BIA 2009)

ID 3655 (PDF)

An alien who entered the United States pursuant to a crewman’s visa for the purpose of
obtaining employment as a crewman is statutorily ineligible for cancellation of removal
under section 240A(c)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(c)(1)
(2006). Matter of Goncalves, 10 I&N Dec. 277 (BIA 1963), followed.


EVRA, 25 I&N Dec. 79 (BIA 2009)

ID 3654 (PDF)

The conduct underlying an alien’s arrest and incarceration does not constitute “fault”
within the meaning of section 240(b)(5)(C)(ii) of the Immigration and Nationality Act,
8 U.S.C. § 1229a(b)(5)(C)(ii) (2006), which provides that an order of removal issued at a
hearing conducted in absentia may be rescinded if the alien was in Federal or State custody
at the time of the scheduled hearing and the failure to appear was “through no fault of the
alien.”


A-M-, 25 I&N Dec. 66 (BIA 2009)

ID 3653 (PDF)

(1) Notwithstanding the heading of section 240A(b) of the Immigration and Nationality Act,
8 U.S.C. § 1229b(b) (2006), which only refers to nonpermanent residents, a lawful
permanent resident who qualifies as a battered spouse may be eligible to apply for
cancellation of removal under section 240A(b)(2) of the Act.

(2) Given the nature and purpose of the relief of cancellation of removal for battered
spouses under section 240A(b)(2) of the Act, such factors as an alien’s divorce from an
abusive spouse, remarriage, and previous self-petition for relief based on the abusive
marriage are relevant in determining whether an application for that relief should be
granted in the exercise of discretion.


LAMUS, 25 I&N Dec. 61 (BIA 2009)

ID 3652 (PDF)

A motion to reopen to apply for adjustment of status based on a marriage entered into after
the commencement of removal proceedings may not be denied under the fifth factor
enumerated in Matter of Velarde, 23 I&N Dec. 253 (BIA 2002), based on the mere fact that
the Government has filed an opposition to the motion, without regard to the merit of that opposition.


BULNES, 25 I&N Dec. 57 (BIA 2009)

ID 3651 (PDF)

An alien’s departure from the United States while under an outstanding order of deportation
or removal issued in absentia does not deprive the Immigration Judge of jurisdiction to
entertain a motion to reopen to rescind the order if the motion is premised upon lack of
notice.


LUJAN-QUINTANA, 25 I&N Dec. 53 (BIA 2009)

ID 3650 (PDF)

The Board of Immigration Appeals lacks jurisdiction to review an appeal by the
Department of Homeland Security of an Immigration Judge’s decision to vacate an expedited
removal order after a claimed status review hearing pursuant to 8 C.F.R. § 1235.3(b)(5)(iv)
(2009), at which the Immigration Judge determined the respondent to be a United States
citizen.


LOPEZ-ALDANA, 25 I&N Dec. 49 (BIA 2009)

ID 3649 (PDF)

An applicant for Temporary Protected Status may seek de novo review by an
Immigration Judge in removal proceedings, regardless of whether all appeal rights before the
Department of Homeland Security have been exhausted. Matter of Barrientos, 24 I&N Dec.
100 (BIA 2007), clarified.


A-W-, 25 I&N Dec. 45 (BIA 2009)

ID 3648 (PDF)

(1) The Attorney General has not delegated authority to Immigration Judges, under 8 C.F.R. § 1236.1(d) (2009), to redetermine the conditions of custody imposed by the Department
of Homeland Security with respect to aliens who have not been issued and served with a
Notice to Appear (Form I-862) in relation to removal proceedings pursuant to 8 C.F.R.
Part 1240 (2009).

(2) An alien admitted to the United States pursuant to the Visa Waiver Program who has not
been served with a Notice to Appear pursuant to 8 C.F.R. Part 1240 is not entitled to a
custody hearing before an Immigration Judge under 8 C.F.R. § 1236.1(d). Matter
of Gallardo
, 21 I&N Dec. 210 (BIA 1996), superseded.


BARCENAS-BARRERA, 25 I&N Dec. 40 (BIA 2009)

ID 3647 (PDF)

(1) An alien who willfully and knowingly makes a false representation of birth in
the United States on a passport application is inadmissible under section 212(a)(6)(C)(ii)
of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(ii) (2006), for making
a false representation of United States citizenship.

(2) The respondent, who was convicted of violating 18 U.S.C. § 1542 (2006) for
falsely representing that she was born in the United States on an application for a
passport, is removable under section 237(a)(1)(A) of the Act, 8 U.S.C. § 1227(a)(1)(A)
(2006), as an alien who was inadmissible at the time of her adjustment of status under
section 212(a)(6)(C)(ii) of the Act.


WANG, 25 I&N Dec. 28 (BIA 2009)

ID 3646 (PDF)

The automatic conversion and priority date retention provisions of the Child Status
Protection Act, Pub L. No. 107-208, 116 Stat. 927 (2002), do not apply to an alien who ages
out of eligibility for an immigrant visa as the derivative beneficiary of a fourth-preference
visa petition, and on whose behalf a second-preference petition is later filed by a different
petitioner.


CARDIEL, 25 I&N Dec. 12 (BIA 2009)

ID 3645 (PDF)

A conviction for receipt of stolen property under section 496(a) of the California Penal
Code, with a sentence of imprisonment of at least 1 year, categorically qualifies as a receipt
of stolen property aggravated felony conviction under section 101(a)(43)(G) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2006).


A-T-, 25 I&N Dec. 4 (BIA 2009)

ID 3644 (PDF)

(1) Requests for asylum or withholding of removal premised on past persecution related to
female genital mutilation must be adjudicated within the framework set out by the
Attorney General in Matter of A-T-, 24 I&N Dec. 617 (A.G. 2008).

(2) Once past persecution on account of an enumerated ground is shown, a presumption is
triggered that there would be future harm on the basis of the original claim or, in other
words, on account of the same statutory ground.

(3) An applicant for asylum or withholding should clearly indicate what enumerated
ground(s) he or she is relying upon in making a claim, including the exact delineation of
any particular social group to which the applicant claims to belong.


COMPEAN, BANGALY & J-E-C-, 25 I&N Dec. 1 (A.G. 2009)

ID 3643 (PDF)

The Attorney General vacated the decision in Matter of Compean, Bangaly & J-E-C-,
24 I&N Dec. 710 (A.G. 2009), and pending the outcome of a rulemaking process, directed
the Board of Immigration Appeals and the Immigration Judges to continue to apply the
previously established standards for reviewing motions to reopen based on claims of
ineffective assistance of counsel.





 

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