Post-Judulang Remand (Unpub. BIA)

Nadeen Aljijakli writes: " I am very pleased to share the BIA's recent decision to reopen our client's case for consideration of 212(c) relief in light of the Supreme Court's case in Judulang v. Holder, 132 S.Ct. 476 (2011). Judulang held that the BIA's prohibitive policy in its...

Unpub. BIA on Administrative Closure

"In this unpublished decision, the Board of Immigration Appeals administratively closed proceedings pending receipt of the appeal record from USCIS and the issuance of a decision on the denial of a Form I-130 filed on the respondent's behalf. The Board stated that the immigration judge erred...

Unpub. BIA Interlocutory Appeal Victory - Change of Venue

Anne E. Peterson writes: " I wanted to share this BIA decision granting an interlocutory appeal of [Dallas] IJ Sims decision denying a change of venue motion with you and the readers of BIBDE." [See also: Texas Refugees' Courtroom Nightmare .]

High Court Splits 5-4 on Part of Child Status Protection Act

Scialabba v. Cuellar de Osorio, 2014 U.S. LEXIS 3991 (June 9, 2014) : The BIA’s textually reasonable construction of the Child Status Protection Act’s ambiguous language was entitled to deference, meaning that an aged-out “child” cannot retain his or her priority date if a new...

BIA on Right to Asylum Hearing: Matter of E-F-H-L-

"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...

BIA on Imputed Presence/Residence: Matter of Duarte-Luna & Luna

"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." - Matter of Duarte-Luna & Luna, 26 I&N Dec. 325 (BIA 2014)

Unpub. BIA Victory, 2 CIMTs: Matter of Romero

Ben Winograd writes: "In this unpublished decision, the Board of Immigration Appeals (BIA) held that a charge of deportability under INA 237(a)(2)(A)(ii) based on convictions for two crimes involving moral turpitude cannot be sustained if a waiver under former section 212(c) is granted with respect...

News Excerpts From the July 1, 2014, Bender’s Immigration Bulletin

Supreme Court Decides CSPA Case | On June 9, 2014, the Supreme Court issued its opinion in Scialabba v. Cuellar de Osorio , 2014 U.S. LEXIS 3991 [ enhanced opinion available to lexis.com subscribers ]. The Court held that the BIA’s textually reasonable construction of the Child Status Protection...

BIA on Asylum Fraud: Matter of P-S-H-

"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...

Unpub. BIA on CIMT, Arson: Matter of Hernandez-Hernandez

Ben Winograd writes: "In this unpublished decision, the Board of Immigration Appeals (BIA) terminated proceedings upon finding fourth degree arson under N.Y.P.L. 150.05 not to be a categorical crime involving moral turpitude because perpetrators need have a specific intent to damage property. The...

BIA on 'Particularly Serious Crime' - Matter of G-G-S-, Int. Dec. 3806

"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." - Matter of G-G-S-, July 17, 2014 .

Unpub. BIA Suppression Victory (Remand) in Baltimore

Prof. Maureen A. Sweeney writes: "I thought your readers would be interested in our recent unpublished BIA suppression victory , which rejected an IJ's reasoning that DHS was absolved from any legal repercussions of an allegedly illegal arrest simply because the arrest was carried out by state...

Matter of CHAIREZ-Castrejon, 26 I&N Dec. 349 (BIA 2014)(Lanferman withdrawn)

Official headnotes, emphasis added: (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...

Unpub. BIA on Departure Bar: Matter of Onyesoh

Ben Winograd writes: "In this unpublished decision, the Board of Immigration Appeals (BIA) held that the removal of the respondent from the United States does not constitute a withdrawal of an appeal challenging the denial of a motion to reconsider under the law of the Fifth Circuit, and remanded...

Unpub. BIA on Full Faith & Credit, Vacated Conviction

"We do not agree with the Immigration Judge's determination that the respondent's 2007 drug conviction remains effective for immigration purposes despite its vacatur. The Texas court's decision vacating the respondent's conviction is entitled to full faith and credit in these proceedings...

BIA on Special Rule Cancellation: Matter of M-L-M-A-

"(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...

Unpub. BIA Unicorn Trifecta on Cancellation in Seattle

Manuel “Manny” Francisco Rios III writes: "Attached is a unicorn of the month for us - a reversal of an over-the-top IJ denial of 10 yr cancellation. The IJ denied the e-42B on three separate grounds: adverse credibility, lack of requisite hardship, and discretion. However, one of our...

BIA on 'Illicit Trafficking' - Matter of L-G-H-

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...

Unpub. BIA Descamps Remand: Matter of Hernandez Garcia

"[R]espondent argues that the determination cannot be made as to the level of harm he caused his victim under a modified categorical approach, because the indictment, plea agreement, or other documents that would indicate the nature of his offense, are not in the record (Respondent's Br. at...

BIA on Termination of CAT Deferral: Matter of C-C-I-

(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...

BIA on Particular Social Group, Guatemala: Matter of A-R-C-G-

Official Headnote: 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...

Unpub. BIA CAT Remand Victory; Mexico; Mental Illness; Gang Membership

"We agree with the respondent that the Immigration Judge's analysis overlooked the discussion in the DRI report regarding the use of long-term physical restraints, and how the physical pain caused by such use may constitute torture. ... The Immigration Judge also did not consider the report's...

BIA on CIMT, Gang-Related Grafitti: Matter of Hernandez

Official Headnote: 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...

BIA on 212(h) Waiver Eligibility: Matter of Paek

Official Headnote: 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...

BIA on Marijuana: Matter of Dominguez-Rodriguez

Official Headnote: 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...