BIA Unpubs, Nov. 1-12, 2013

BIA Unpubs, Nov. 1-12, 2013

Courtesy of Ben Winograd and IRAC:

Tui Pele Falo, A035 046 579 (BIA Nov. 1, 2013) In this unpublished decision, the Board of Immigration Appeals (BIA) found the respondent was convicted of both an aggravated felony and a particularly serious crime due to the commission of a theft offense for which he received an indeterminate term of imprisonment not to exceed five years. The Board also stated that it could not provide humanitarian relief to the respondent, a lawful permanent resident who has resided in the United States since the age of nine, and who is married and has four children. The decision was written by Member John Guendelsberger.

Kelechi Pauline Mbagwu, A078 437 923 (BIA Nov. 4, 2013) In this unpublished decision, the Board of Immigration Appeals (BIA) reconsidered sua sponte its denial of a motion to reopen and terminated proceedings to allow the respondent to pursue adjustment of status before USCIS. The Board previously denied the motion to reopen under the erroneous belief that the Department of Homeland Security (DHS) had not responded to the motion, when the DHS had in fact stated that it did not oppose the motion. The decision was written by Member David Holmes.

Jose Santos Gomez-Amaya, A205 881 617 (BIA Nov. 5, 2013) In this unpublished decision, the Board of Immigration Appeals (BIA) sustained the appeal, found that good cause existed for a continuance, and remanded to permit the respondent to apply for relief from removal. The Board noted that the immigration Judge did not consider all the circumstances present in the case, including the respondent’s lack of legal representation and familiarity with the English language. The decision was written by Member Neil Miller and joined by Member David Holmes and Member Molly Kendall-Clark.

Do Kyung Lee, A089 047 352 (BIA Nov. 5, 2013) In this unpublished decision, the Board of Immigration Appeals (BIA) reversed the denial of an application for adjustment of status upon finding the respondent, the spouse of an E-2 treaty investor, was not required to obtain an employment authorization document (EAD) to engage in employment. The decision was written by Member Roger Pauley and joined by Member Anne Greer and Member Paula Cole.

Victor Hugo Gomez-Cifuentez, A089 284 153 (BIA Nov. 6, 2013) In this unpublished decision, the Board of Immigration Appeals (BIA) remanded to provide the respondent an opportunity to apply for relief from removal upon finding the immigration judge erred in denying the respondent’s attorney’s request for a seven-day continuance to gather documents to submit in support of an asylum application. The decision was written by Member John Guendelsberger and joined by Vice Chairman Charles Adkins-Blanch and Member Sharon Hoffman.

Cirano Abertano Leon-Nogales, A205 140 051 (BIA Nov. 7, 2013) In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record because the immigration judge neglected to advise the respondent of his potential eligibility for cancellation of removal for nonpermanent residents in accordance with 8 CFR 1240.11(a)(2). The decision was written by Vice Chairman Charles Adkins-Blanch.

Xingchen Ye, A078 694 496 (BIA Nov. 8, 2013). In this unpublished decision, the Board of Immigration Appeals (BIA) remanded for further consideration of whether the respondent abandoned his lawful permanent resident status where his prior attorney committed ineffective assistance of counsel by failing to submit evidence demonstrating the respondent’s continued ties to the United States. The decision was written by Member Hugh Mullane and joined by Member Garry Malphrus and Member Ana Mann.

Roy Gerald Moore, A079 734 564 (BIA Nov. 8, 2013). In this unpublished decision, the Board of Immigration Appeals (BIA) reopened proceedings in light of evidence that a state trial court amended the respondent’s conviction to reflect that he was convicted of driving under the influence of alcohol rather than a controlled substance. The Board remanded for further consideration of the respondent’s eligibility for adjustment of status. The decision was written by Member David Holmes.

Misael Najera Najera, A089 744 149 (BIA Nov. 8, 2013) In this unpublished decision, the Board of Immigration Appeals (BIA) upheld the denial of the respondent’s adjustment of status application upon finding he had not sought to acquire lawful permanent resident status within one year of a visa becoming available, as is required under the Child Status Protection Act (CSPA). The Board found that intentionally delaying the filing of an adjustment application due to concerns over a criminal conviction did not amount to an extraordinary circumstance. The decision was written by Member Elise Manuel.

Elisa Marbelly Caceres-Chacon, A098 487 209 (BIA Nov. 8, 2013) In this unpublished decision, the Board of Immigration Appeals (BIA) rescinded an order of removal issued in absentia under the totality of circumstances.  The decision was written by Member Edward Grant and joined by Vice Chairman Charles Adkins-Blanch and Member Elise Manuel.

Kwok Sum Wong, A036 850 251 (BIA Nov. 12, 2013) In this unpublished decision, the Board of Immigration Appeals (BIA), following a remand from the Second Circuit, remanded for further proceedings and fact-finding regarding whether second degree forgery under N.Y.P.L. 170.10 constitutes a categorical crime involving moral turpitude. The decision was written by Member Ellen Liebowitz.