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

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

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.


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

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

RUZKU, 26 I&N Dec. 731 (BIA 2016) ID 3860 (PDF)

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


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

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


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

ID 3858 (PDF)

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

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

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


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

ID 3857 (PDF)

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

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


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

ID 3856 (PDF)

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


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

ID 3855 (PDF)

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


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

ID 3854 (PDF)

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


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

ID 3853 (PDF)

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

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


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

ID 3852 (PDF)

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


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

ID 3851 (PDF)

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

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


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

ID 3850 (PDF)

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

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


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

ID 3849 (PDF)

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

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


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

ID 3848 (PDF)

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

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


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

ID 3847 (PDF)

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

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

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


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

ID 3846 (PDF)

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

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


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

ID 3845 (PDF)

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


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

ID 3844 (PDF)

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


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

ID 3843 (PDF)

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


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

ID 3842 (PDF)

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


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

ID 3841 (PDF)

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


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

ID 3840 (PDF)

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


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

ID 3839 (PDF)

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


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

ID 3838 (PDF)

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

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


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

ID 3837 (PDF)

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


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

ID 3836 (PDF)

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


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

ID 3835 (PDF)

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


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

ID 3834 (PDF)

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


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

ID 3833 (PDF)

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


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

ID 3832 (PDF)

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

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


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

ID 3831 (PDF)

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

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


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

ID 3830 (PDF)

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

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


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

ID 3829 (PDF)

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


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

ID 3828 (PDF)

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

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


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

ID 3827 (PDF)

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


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

ID 3826 (PDF)

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


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

ID 3825 (PDF)

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

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


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

ID 3824 (PDF)

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

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


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

ID 3823 (PDF)

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


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

ID 3822 (PDF)

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


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

ID 3821 (PDF)

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


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

ID 3820 (PDF)

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


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

ID 3819 (PDF)

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


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

ID 3818 (PDF)

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


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

ID 3817 (PDF)

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


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

ID 3816 (PDF)

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


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

ID 3815 (PDF)

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


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

ID 3814 (PDF)

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


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

ID 3813 (PDF)

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


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

ID 3812 (PDF)

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


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

ID 3811 (PDF)

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


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

ID 3810 (PDF)

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

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


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

ID 3809 (PDF)

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


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

ID 3808 (PDF)

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

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


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

ID 3807 (PDF)

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

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

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


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

ID 3806 (PDF)

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


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

ID 3805 (PDF)

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


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

ID 3804 (PDF)

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


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

ID 3803 (PDF)

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


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

ID 3802 (PDF)

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


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

ID 3801 (PDF)

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

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


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

ID 3800 (PDF)

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


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

ID 3799 (PDF)

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


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

ID 3798 (PDF)

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


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

ID 3797 (PDF)

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

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

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


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

ID 3796 (PDF)

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

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

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

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

ID 3795 (PDF)

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

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

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


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

ID 3794 (PDF)

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

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

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

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


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

ID 3793 (PDF)

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


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

ID 3792 (PDF)

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

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

ID 3791 (PDF)

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

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


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

ID 3790 (PDF)

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


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

ID 3789 (PDF)

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

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


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

ID 3788 (PDF)

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

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


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

ID 3787 (PDF)

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


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

ID 3786 (PDF)

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


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

ID 3785 (PDF)

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

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

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


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

ID 3784 (PDF)

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

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

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


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

ID 3783 (PDF)

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


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

ID 3782 (PDF)

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


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

ID 3781 (PDF)

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


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

ID 3780 (PDF)

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


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

ID 3779 (PDF)

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

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


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

ID 3778 (PDF)

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


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

ID 3777 (PDF)

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


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

ID 3776 (PDF)

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

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

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


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

ID 3775 (PDF)

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


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

ID 3774 (PDF)

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


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

ID 3773 (PDF)

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


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

ID 3772 (PDF)

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


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

ID 3771 (PDF)

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


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

ID 3770 (PDF)

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

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


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

ID 3769 (PDF)

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

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

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


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

ID 3768 (PDF)

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


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

ID 3767 (PDF)

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


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

ID 3766 (PDF)

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

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



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

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

CA7 remands because alien prejudiced by his inability to cross-examine witness whose evidence on marriage fraud was presented through a written statement

Karroumeh was entitled to new hearing on petition seeking his removal based on allegation that he entered into sham marriage for immigration purposes, where he was prejudiced by his inability to cross-examine his American-citizen former wife, who provided written statement claiming that alien had not lived with her for majority of their brief marriage. While govt. argued that submission of former wife’s written statement was permissible because it had made reasonable attempt to procure her attendance at hearing, Ct. found that govt. failed to make reasonable efforts to obtain her presence at removal hearing, where: (1) there was no evidence that subpoena was served on former wife that sought her presence on original hearing date that was subsequently moved to new date; and (2) govt. made no effort to request new subpoena to require her presence on new date of removal hearing.

Karroumeh, a citizen of Jordan then married to a Jordanian woman with whom he had two children, was admitted to the U.S. as a visitor in 1996. Within months, he obtained a proxy divorce and married Wright, a U.S. citizen who also had children. Wright filed a Form I-130, Petition for Alien Relative in conjunction with a Form I-485, Application to Register Permanent Residence or Adjust Status. Both were conditionally granted in 1998. In 2000, they successfully petitioned to remove the conditions from Karroumeh’s lawful permanent resident status, 8 U.S.C. 1186a(c)(1)(A). In 2001, Karroumeh filed his first application for naturalization During an interview, Karroumeh revealed that he and Wright were divorcing. Karroumeh withdrew his application. His divorce was finalized. In 2003 and 2006, Karroumeh filed two more applications for naturalization. In 2008, USCIS began to investigate Karroumeh for immigration fraud and obtained a sworn statement from Wright, including multiple contradictions. USCIS denied Karroumeh’s application. DHS commenced removal proceedings under 8 U.S.C. 1227(a)(1)(A). The Seventh Circuit remanded the order of removal, finding that Karroumeh was prejudiced by his inability to cross-examine Wright, a key government witness whose evidence was presented through a written statement.

Download Case
_____

In the United States Court of Appeals For the Seventh Circui

No. 15-2198

MOHSEN KARROUMEH,

Petitioner,

v.

LORETTA E. LYNCH, Attorney General of the United States, Respondent.

Petition for Review of an Order of the Board of Immigration Appeals. A076-296-363

ARGUED JANUARY 20, 2016 — DECIDED APRIL 29, 2016

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

ROVNER, Circuit Judge. Mohsen Karroumeh petitions for review of a final order of removal issued by the Board of Immigration Appeals (“BIA” or “Board”). The Board deter- mined that Karroumeh was removable because he entered into a sham marriage for immigration purposes. We conclude that Karroumeh is entitled to a new hearing before an immigration judge (“IJ”) because he was prejudiced by his inability to cross-examine a key government witness whose evidence was presented through a written statement. We grant the petition and remand for a new hearing.

I.

Karroumeh is a native and citizen of Jordan who was admitted to the United States as a visitor on May 2, 1996. At that time, he was married to a Jordanian woman with whom he had two children. In October 1996, he obtained a proxy divorce from his wife, and in February 1997, he married Terri Wright, a United States citizen who also had two children. A few months later, Wright filed a Form I-130, Petition for Alien Relative (“Petition”), on Karroumeh’s behalf, in conjunction with a Form I-485, Application to Register Permanent Residence or Adjust Status (“Application”). The Petition and Application were conditionally granted in June 1998. See 8 U.S.C. § 1186a. In July 2000, Karroumeh and Wright timely filed a Form I-751, a joint petition to remove the conditions from Karroumeh’s lawful permanent resident status. See 8 U.S.C. § 1186a(c)(1)(A). United States Citizenship & Immigration Services (“USCIS”) granted the joint petition in January 2001, and the conditions were removed from Karroumeh’s lawful permanent resident status. See 8 U.S.C. § 1186a(c)(3)(B).

Several months later, in May 2001, Karroumeh filed his first application for naturalization. During a February 2002 naturalization interview with USCIS, when questioned about the absence of his U.S. citizen wife, Karroumeh revealed that he and Wright were in the process of obtaining a divorce. A week later, Karroumeh withdrew his application. In March 2002, his divorce was finalized. In April 2003 and September 2006, Karroumeh filed two more applications for naturalization. In 2008, USCIS began to investigate Karroumeh for immigration fraud.

In the course of that investigation, USCIS officer Leslie Alfred obtained a sworn statement from Wright in December 2008, more than six years after her divorce from Karroumeh. Although Alfred questioned Wright extensively about her living situation during and after the marriage, her ambiguous and sometimes contradictory responses raised as many questions as they answered. In the interview, Wright revealed that she had moved to Columbia, Mississippi in November 1997, approximately nine months after she married Karroumeh, when her mother was jailed. But she also admitted that she registered her car in Mississippi in August 1997, and later said that she left for Mississippi in May 1997, which would have been only three months after she married Karroumeh. She said that she stayed in Mississippi for a year, paying the rent at the Columbia address until her mother was released from jail. She said both that she returned to the Chicago area in November 1998, and also that she moved to Hinsdale, Illinois in 2000, after moving back from Mississippi. She said that she separated from Karroumeh and began living apart from him in late 2000, and also that they “never lived together.” R. at 516. She later said that they “spent time together as a family, but we never lived together as a husband and wife.” R. at 517.

At the time of the December 2008 interview, Wright was living on South Springfield in Chicago, and had been living there nearly two years. Prior to that, she resided on West Cortez in Chicago for three years. When asked about registering her car during her marriage at addresses on Racine in Chicago, and on Clarendon Hills Road in Willowbrook, she replied that she only used the apartment in Clarendon Hills.1 When asked directly if she and her children ever lived with Karroumeh, she replied that, when she was living in Hinsdale, “for 3 or 4 days out of the week he would come over. We were never on each other’s lease.” R. at 514. She also said that she “stayed with him a few nights at Worth,” a suburb of Chicago where Karroumeh leased an apartment. R. at 514. When told that records showed she never lived at Karroumeh’s Worth address, Wright cryptically replied, “You are correct lease wise.” R. at 515. When Alfred asked why her signature appeared on two of Karroumeh’s Worth leases, she replied, “This is because he gave them to me. He already signed the leases, I just signed it. I knew he was doing some bull crap, so I just got my own place.” R. at 515.

Alfred also asked Wright if she ever thought that Karroumeh married her just to get his green card, and she replied, “I felt he didn’t want to live with me.” R. at 517. She recalled signing a lease with Karroumeh before she left for Mississippi in May 1997, and said that he told her they could move into a two bedroom apartment, but that he never followed through in getting the larger apartment, causing her to feel that he did not wish to live with her. She filed one joint tax return with him, in 1999, and received a $2000 refund. She did not know why her name and social security number were on Karroumeh’s taxes for 1998 and 2000. Over the course of the marriage, Karroumeh gave Wright a little more than $4000, including $200 on their wedding day, $500 for clothing for her children, and the tax refund. As a result of the investigation, USCIS denied Karroumeh’s 2006 application for naturalization.

1 Clarendon Hills is both the name of a road in Willowbrook, a suburb of Chicago, and the name of a separate suburb, just north of Willowbrook.

In June 2012, Karroumeh filed a “Petition for a Hearing on Naturalization Application” in the district court in the North- ern District of Illinois. In October 2012, the Department of Homeland Security (“DHS”) commenced removal proceed- ings, serving Karroumeh with a Notice to Appear alleging that he had procured his lawful permanent resident status through fraud. See 8 U.S.C. § 1227(a)(1)(A). In particular, DHS asserted that he had married a United States citizen solely to obtain an immigration benefit. Because Karroumeh had filed an action in the district court, DHS sought expedited proceedings in the parallel removal action. Karroumeh denied the charges at his first appearance before the IJ on February 13, 2013. The IJ ordered DHS to file its evidence supporting the charge by May 13, 2013, and set a merits hearing for August 6, 2013. In April 2013, for reasons not apparent from the record, the IJ rescheduled the merits hearing to September 5, 2013. DHS submitted its evidence in support of the charge and indicated that it intended to present five witnesses at the hearing: Wright, her two children, Karroumeh’s property manager Lance Olson, and Leslie Alfred, the USCIS investigator who had taken the sworn statement from Wright. DHS also filed a motion with the IJ requesting issuance of a subpoena requiring Wright and her children to appear at the September 5, 2013 hearing. The IJ granted the motion for a subpoena but there is no evidence in the record that the subpoena was served on Wright.

The IJ moved the merits hearing one last time, to January 10, 2014. But no new subpoena was issued for Wright requiring her appearance on the new date. And she did not in fact appear on that date. On the day of the hearing, when the IJ asked government counsel whether Wright was available to testify, counsel replied, “None of those that have been subpoenaed have appeared for today’s hearing, Your Honor.” R. at 101. DHS then presented the testimony of Leslie Alfred. Alfred authenticated sworn statements from Wright and from Lance Olson, and then testified regarding his investigation into the legitimacy of the marriage. In particular, Alfred cited as suspicious the short amount of time between Karroumeh’s divorce from his Jordanian wife and his marriage to Wright, Wright’s statements that the couple never lived together, the money that Karroumeh gave Wright during the marriage, discrepancies regarding the filing of joint tax returns, Wright’s hesitation when asked if she and Karroumeh had consummated the marriage, and differences between Wright’s testi- mony regarding the date of separation and the date noted on the divorce decree, among other things. Karroumeh testified both as an adverse witness in the DHS case-in-chief and on his own behalf.

Although Karroumeh objected to the admission of Wright’s sworn statement, the IJ concluded during the hearing that the document was admissible:

Now the Government is contending that your wife’s statement supports their conclusion that your marriage was a sham. Mr. Adkinson [Karroumeh’s lawyer] has argued that that’s not true and that I should not even consider your wife’s statement. However, the Government has made an attempt to have your wife come to court. They subpoenaed her to come to court and she has not appeared. They could not locate her and she could not come to court. A third-party affidavit submitted by an out- of-court declarant is admissible in evidence where the Government has made an attempt to have that witness present. You also said that you didn’t even know where your wife was and you were not able to have her come to court. So the Government does have the right to use your wife’s statement against you. R. at 201–02. The IJ again ruled that Wright’s sworn statement was admissible in the final oral ruling:

The respondent’s attorney objected to the Court’s reliance on the affidavit of Terri Wright taken by the DHS [sic] Officer Leslie Alfred. It is true that evi- dence is only admissible if it is relevant and fundamentally fair to both sides. Here, however, I find that the admission of Terri Wright’s affidavit in the course of USCIS’ investigation was not fundamentally unfair to the respondent. The Government attorney made every effort to locate and bring Terri Wright to court to testify. They had asked the respondent for her address and asked for help in locating her. They asked the Court for the issuance of a subpoena, which was granted. Where the Government has made every effort to present an adverse witness, the admission of a third party’s statement is not fundamentally unfair. R. at 81–82.

The IJ ultimately concluded that the government met its burden of demonstrating that Karroumeh’s marriage to Wright was not bona fide. In both his oral and written rulings, the IJ emphasized the importance of Wright’s sworn statement in reaching that conclusion. In the final oral decision, the IJ relied on Wright’s statement to demonstrate (1) that there was no period of time where Wright and Karroumeh lived together at the same address; (2) that Wright was living in Mississippi when she obtained an Illinois driver’s license; (3) that Wright never lived at Karroumeh’s Worth apartment; (4) that Wright never signed a lease with Karroumeh but that Karroumeh had manufactured evidence by having her sign leases after the fact;

(5) that the date of separation in the divorce decree was false; and (6) that Karroumeh gave Wright money on multiple occasions, including in exchange for filing a joint tax return, as payments for entering into the marriage. In determining what weight should be accorded the Government’s evidence and whether the government had met its burden of proving by clear and convincing evidence that the marriage was a sham, the IJ stated:

First, the statement of Terri Wright is extremely damaging to the respondent. While she did not admit that she was paid money solely to enter into the marriage, everything about the statement suggests that the respondent fabricated evidence to contend that his marriage was a true marriage and that he was residing together with his spouse. The statement from Terri Wright supports the conclusion that the marriage was not entered into in good faith. R. at 82. The IJ also cited the testimony of Alfred, which, of course, was based in part on his interview with Wright. In summing up the evidence, the IJ cited the quick succession of Karroumeh’s arrival in the United States, proxy divorce and marriage to Wright; the evidence that the couple never lived together; and Karroumeh’s manufacture of evidence such as Wright’s Illinois driver’s license, the leases, and the 1999 tax return. The IJ ordered that Karroumeh’s lawful permanent resident status be terminated and that he be granted voluntary departure.

On appeal, the BIA affirmed the IJ’s determination that Karroumeh was removable because he entered into a sham marriage for immigration purposes. Addressing Karroumeh’s argument that the IJ failed to properly enforce the subpoena issued to Wright, the BIA found that only the party seeking the subpoena could claim the benefits of the enforcement provision found at 8 C.F.R. § 1003.35(b)(6). The BIA also rejected Karroumeh’s claim that Wright’s sworn statement should not have been allowed as evidence because Wright was not present at the hearing for cross-examination. Because the government made reasonable efforts to procure Wright’s presence and because Karroumeh had an opportunity to cross-examine Alfred, the agent who took Wright’s statement, the BIA concluded that the statement was properly admitted as evidence. The BIA found that the government adequately established removability, and ordered Karroumeh’s removal to Jordan. Karroumeh petitions this court for review of that order.

II.

In his petition for review, Karroumeh contends that his statutory and due process rights to cross-examine Wright were violated when the IJ and BIA relied on Wright’s sworn state- ment even though the government failed to make reasonable efforts to procure her presence at the hearing. Karroumeh asserts that he was prejudiced by this error because there was little basis for finding that his marriage was a sham without Wright’s sworn statement. The government responds that it did in fact make reasonable efforts to bring Wright to the hearing and that those efforts are sufficient under the statute to allow the sworn statement to be used against Karroumeh. The government also asserts that it met its burden of demon- strating by clear and convincing evidence that Karroumeh married Wright for the sole purpose of obtaining immigration benefits.

“When the Board agrees with the decision of the immigration judge, adopts that decision and supplements that decision with its own reasoning, as it did here, we review the immigration judge’s decision as supplemented by the Board.” Cece v. Holder, 733 F.3d 662, 675 (7th Cir. 2013) (en banc). We review the findings of fact for substantial evidence and reverse only if the evidence compels a different result. Cece, 733 F.3d at 675–76. We review questions of law de novo, deferring to the Board’s reasonable interpretation set forth in precedential opinions interpreting the statute. Chevron, U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837, 842–43 (1984); Cece, 733 F.3d at 668–69.

In seeking to remove Karroumeh from the United States, the government bore the burden of proving by clear and convincing evidence that he was deportable, and that his marriage to Wright was a sham, entered into for the purpose of obtaining immigration benefits. See 8 U.S.C. § 1229a(c)(3)(A). Aliens in removal proceedings are entitled to due process of law under the Fifth Amendment. Pouhova v. Holder, 726 F.3d 1007, 1011 (7th Cir. 2013). The immigration statutes also impose procedural requirements on removal proceedings, and any proceeding that meets those requirements also satisfies constitutional due process. See Pouhova, 726 F.3d at 1011. One of the statutory procedural guarantees is the right to a reason- able opportunity to cross-examine witnesses presented by the government. 8 U.S.C. § 1229a(b)(4)(B); Pouhova, 726 F.3d at 1011; Malave v. Holder, 610 F.3d 483, 487 (7th Cir. 2010). The right to cross-examine adverse witnesses extends to those whose statements are presented in written declarations as well as those presented through live testimony. Malave, 610 F.3d at 487. “A declarant is a ‘witness’ when testimony comes in on paper, no less than when it is offered in person.” Malave, 610 F.3d at 487. In challenging the BIA’s decision, Karroumeh must demonstrate not only that this right was denied but also that he was prejudiced by the denial. Pouhova, 726 F.3d at 1011. We review de novo the legal question of whether the admission of a document violated a petitioner’s procedural rights in a removal proceeding and, if so, whether the admission was prejudicial. Pouhova, 726 F.3d at 1011–12.

The IJ found that the admission of Wright’s statement did not violate Karroumeh’s procedural rights because the government used reasonable efforts to procure Wright’s attendence at the hearing. We have expressed doubt whether the use of “reasonable efforts” to procure the presence of the witness is adequate to ensure the fairness of admitting documents whose declarants cannot be cross-examined. Pouhova, 726 F.3d at 1015; Malave, 610 F.3d at 487–88. But as in Pouhova and Malave, we need not resolve that question here because the record demon- strates that the government failed to make reasonable efforts to locate Wright and compel her presence at the hearing.

The very limited record on this issue demonstrates that the government asked the court to issue a subpoena compelling Wright’s appearance at the September 5, 2013 hearing. There is no evidence in the record that the subpoena was served on Wright. But more importantly, when the IJ moved the date of the hearing to January 10, 2014, the government did not request a new subpoena for that date and the court did not issue an updated subpoena. Other than seeking a subpoena for the wrong hearing date, there is no evidence in the record regarding the government’s efforts to secure Wright’s presence at the hearing. Nor did the IJ follow through on the regulatory requirement to seek the assistance of the United States Attorney and the district court in enforcing the subpoena. Section 8 C.F.R. § 1003.35(b)(6) states that, if a subpoenaed witness “neglects or refuses to appear and testify as directed … the Immigration Judge issuing the subpoena shall request the United States Attorney … to report such neglect or refusal to the United States District Court and to request such court to issue an order requiring the witness to appear and testify[.]”

The BIA’s conclusion that only the party seeking the subpoena could claim the benefits of the enforcement provision found at 8 C.F.R. § 1003.35(b)(6) may be correct but it is irrelevant here: as the party seeking to use Wright’s sworn statement, the government was required to use reasonable efforts to secure Wright’s presence at the hearing, and yet the government failed to employ this readily available tool. The government has resources to locate persons who do not wish to be found. Malave, 610 F.3d at 488. Indeed, the government found Wright previously, when it wanted to interview her regarding her marriage to Karroumeh. “A prediction that a person can’t be found, or that cross-examination won’t be fruitful, is a poor reason to deny a litigant the statutory entitlement to cross- examine adverse witnesses.” Malave, 610 F.3d at 488. Although the government repeatedly invokes the phrase “reasonable efforts” in its brief, it has never set forth what those efforts entailed. Left with a record that shows nothing more than a single, unserved subpoena for the wrong date, we cannot conclude that the government used reasonable efforts to secure Wright’s presence at the hearing. Karroumeh has demonstrated that his procedural right to cross-examination was violated.

We turn to the question of prejudice. Wright’s statement was the primary piece of evidence cited by the IJ in supporting the decision. The IJ described the statement as “extremely damaging” to Karroumeh. In addition to Wright’s statement, the evidence consisted of Wright’s car registrations and driver’s license renewal; a few photographs of the couple; the landlord’s letter and sworn statement; leases; the divorce decree; and the time line of Karroumeh’s entry into the United States followed by his relatively quick proxy divorce and marriage to a United States citizen. Without Wright’s state- ment, the government could not demonstrate by “clear and convincing” evidence that the marriage was a sham. Much of the evidence was consistent with Karroumeh’s testimony that he and Wright mostly lived apart because his apartment was not large enough to accommodate her children, and because she temporarily moved to Mississippi for a period due to a family crisis. The photographs showed nothing more than Wright and her children with Karroumeh at an amusement park, and the wedding. The tax returns were jointly filed, and the leases were in the names “Mohsen and Terri Karroumeh.” Without Wright’s statement denying that she filed joint tax returns for two of the three relevant years, and that she signed the leases after the fact, the government presented little evidence that the marriage was a sham.

Evidence in removal proceedings need not strictly conform to the Federal Rules of Evidence, but the admission of evidence must be probative and fundamentally fair. Pouhova, 726 F.3d at 1011. Fairness, in turn, depends in part on the reliability of the evidence. Id. Hearsay is generally admissible in administrative proceedings, and may supply substantial evidence in support of an administrative decision, so long as there has been an opportunity for cross-examination. Malave, 610 F.3d at 487. As we noted above, Karroumeh had no opportunity to cross- examine Wright regarding her out-of-court statement.

Wright’s statement is marked by contradictions and inconsistencies that call its reliability into question. For example, Wright gave three different dates for her move to Mississippi and two different dates for her return to Illinois.

She both denied signing leases with Karroumeh and also admitted signing them. Some of her statements beg for an explanation, such as her claim that she did not live with Karroumeh at his Worth address “lease wise.” Wright gave the statement more than six years after her divorce from Karroumeh. In a response that could be interpreted as display- ing bias , she said that she divorced Karroumeh because after “constant lie after lie, he never followed through with his plans like getting a house[.]” Karroumeh has been deprived of an opportunity to ask clarifying questions or pursue areas left unexplored by Leslie. In his appeal to the Board, Karroumeh noted that Leslie never directly asked Wright if she was engaged in a fraudulent marriage, never asked for the meaning of the term “lease wise,” never inquired why Karroumeh gave Wright money during the marriage, and never asked whether Wright was prosecuted for marriage fraud. In light of the contradictions and inconsistencies as well as Wright’s motive to testify against her ex-husband, her hearsay statement was unreliable and Karroumeh should have been allowed an opportunity to test it with cross-examination. The admission of her statement under these circumstances was not fundamentally fair. And without this evidence, the government could not meet its burden of demonstrating by clear and convincing evidence that the marriage was a sham. Karroumeh has thus established prejudice.

As we noted in Pouhova, it is unclear whether the government’s reasonable efforts to locate a witness could render unreliable hearsay any more reliable or its use any more fair than if the government made no effort to secure the presence of the witness. 726 F.3d at 1015. Because the government did not make reasonable efforts to bring Wright to the hearing, we reserve that question for a case where it would affect the outcome. In this case, it is clear that Karroumeh’s procedural right to cross-examine the main witness against him was violated, and that this error was prejudicial. We therefore grant his petition and remand for a hearing that provides Karroumeh with all the procedural rights due to him.

PETITION GRANTED

Posted in 7th Circuit, 7th Circuit Cases- Aliens, cross-examine, Marriage Fraud | Leave a comment

Visa Waiver Program e-Passport Requirement in Effect as of April 1, 2016

Visa Waiver Program e-Passport Requirement Now in Effect

U.S. Customs and Border Protection (CBP) issued a reminder that as of April 1, 2016, all citizens of Visa Waiver Program (VWP)1 countries must possess an electronic passport (e-Passport) to travel to the U.S. under the VWP. An e-Passport is an enhanced secure passport with an embedded electronic chip, and a unique international symbol on the cover. Travelers not in possession of an e-Passport must have a valid nonimmigrant visa to travel to the U.S.

Department of Homeland Security (DHS) Secretary Jeh Johnson issued the following statement on April 1, 2016:

Effective today we will begin to require the use of more electronic passports, or e-Passports, by all travelers coming to the United States from the 38 countries that participate in our Visa Waiver Program.2

An e-Passport contains the security feature of an electronic chip, which holds all of a passenger’s [sic] including name, date of birth and other biographical information. This not only protects privacy and prevents identity theft, but also helps to safely identify a passenger, making travel safer and faster.

Last August, I announced that the Department of Homeland Security and the Department of State would introduce additional or revised security criteria for countries in our Visa Waiver Program,3 including the use of e-Passports for all travelers coming to the U.S. With the passage late last year of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act,4 Congress has mandated that, effective today, all travelers from Visa Waiver countries to the U.S. must have an e-Passport. Travelers who do not have an e-Passport from a Visa Waiver country must obtain a visa to come the U.S.

Our Visa Waiver Program remains a valuable program for lawful trade and travel with our Nation’s most trusted partners, and I am committed to ensuring that it is a secure program as well. The required use of e-Passports is the latest in a series of recent actions that we have taken to strengthen the security of the Program. In the last two years, we have also increased the data collected from travelers from Visa Waiver countries for vetting purposes, and have required increased terrorism and criminal information sharing and increased cooperation on the screening of refugees and asylum seekers with countries in the Visa Waiver Program.

Note: As of March 15, 2016, Canada requires visa-exempt foreign nationals who fly to or transit through Canada to have an Electronic Travel Authorization (eTA). Exceptions include U.S. citizens, and travelers with a valid Canadian visa. During a leniency period from March 15, 2016 until fall 2016, travelers who do not have an eTA will be allowed to board their flight, as long as they have appropriate travel documents, such as a valid passport. Entry requirements for other methods of travel (land or sea) have not changed.

Footnotes
1. Eligible citizens, nationals, and passport holders from designated VWP countries may apply for admission to the U.S. as visitors for business or pleasure for a period of 90 days or less without first obtaining a nonimmigrant visa.
2. The 38 designated countries are Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, Republic of Korea, San Marino, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan, and the United Kingdom.
3. On August 6, 2015, Department of Homeland Security (DHS or Department) Secretary Jeh C. Johnson announced security enhancements to the Visa Waiver Program (VWP).17 DHS and the Department of State, along with certain other federal agencies, will begin introducing a number of additional or revised security criteria for all participants in the VWP (both new and current members). The new security requirements include:

  • use of e-passports for all VWP travelers coming to the U.S.
  • use of the INTERPOL Lost and Stolen Passport Database to screen travelers crossing a Visa Waiver country’s borders
  • permission for the expanded use of U.S. federal air marshals on international flights from Visa Waiver countries to the U.S.

Secretary Johnson pointed out that these security enhancements build on changes DHS made last fall, when it added additional data fields of information in the application (known as the Electronic System for Travel Authorization, or ESTA) of those seeking to travel to the U.S. with Visa Waiver passports. Eligible citizens, nationals, and passport holders from designated VWP countries may apply for admission to the U.S. as visitors for business or pleasure for a period of 90 days or less without first obtaining a nonimmigrant visa. Current designated countries are Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, Republic of Korea, San Marino, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan, and the United Kingdom (England, Scotland, Wales, Northern Ireland, the Channel Islands and the Isle of Man). See 8 CFR § 217.2.
4. Pub. L. No. 114-113, Div. O, Title II, 129 Stat. 2242 (Dec. 18, 2015). See “DOS and DHS Announce Changes to Visa Waiver Program Affecting Dual Nationals of Iran, Iraq, Sudan, or Syria As Well As Persons Who Have Traveled to Those Countries.

Posted in e-Passport Requirement, Visa Waiver Program (VWP) | Leave a comment

Visa Bulletin For May 2016

IMMIGRANT VISA PREFERENCE NUMBERS FOR MAY 2016

Number 92
Volume IX
Washington, D.C

View as Printer Friendly PDF

 

A. STATUTORY NUMBERS

This bulletin summarizes the availability of immigrant numbers during May for: “Application Final Action Dates” and “Dates for Filing Applications,” indicating when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center.

Unless otherwise indicated on the USCIS website at www.uscis.gov/visabulletininfo, individuals seeking to file applications for adjustment of status with U.S. Citizenship and Immigration Services (USCIS) in the Department of Homeland Security must use the “Application Final Action Dates” charts below for determining when they can file such applications. When USCIS determines that there are more immigrant visas available for the fiscal year than there are known applicants for such visas, USCIS will state on its website that applicants may instead use the "Dates for Filing Visa Applications" charts in this Bulletin. Applicants for adjustment of status may refer to USCIS for additional information by visiting www.uscis.gov/visabulletininfo.

1.  Procedures for determining dates. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; USCIS reports applicants for adjustment of status. Allocations in the charts below were made, to the extent possible, in chronological order of reported priority dates, for demand received by April 12th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category “unavailable”, and no further requests for numbers would be honored.

2.  Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

4.  Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows: 

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

A.  APPLICATION FINAL ACTION DATES FOR
     FAMILY-SPONSORED PREFERENCE CASES

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are authorized for issuance to all qualified applicants; and "U" means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the cut-off date listed below.)

Family-
Sponsored 
All Chargeability 
Areas Except
Those Listed
CHINA-mainland 
born
INDIA MEXICO PHILIPPINES 
F1 22NOV08 22NOV08 22NOV08  08FEB95 01OCT04
F2A 01NOV14 01NOV14 01NOV14 15AUG14  01NOV14
F2B 01SEP09 01SEP09 01SEP09 08SEP95 01MAY05
F3 01DEC04 01DEC04 01DEC04 08OCT94 22JAN94
F4 22JUL03 22JUL03 22JUL03 08APR97 01OCT92

*NOTE: For May, F2A numbers EXEMPT from per-country limit are authorized for issuance to applicants from all countries with priority dates earlier than 15AUG14. F2A numbers SUBJECT to per-country limit are authorized for issuance to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 15AUG14 and earlier than 01NOV14. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

B.  DATES FOR FILING FAMILY-SPONSORED
     VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the cut-off date in the chart below may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The cut-off date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file applications, regardless of priority date.

The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which is earlier than the listed date may file their application.

Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 4.A.) this month for filing applications for adjustment of status with USCIS. 

Family-
Sponsored 
All Chargeability 
Areas Except
Those Listed
CHINA-
mainland 
born
INDIA MEXICO PHILIPPINES 
F1 01OCT09 01OCT09 01OCT09 01APR95 01SEP05
F2A 15JUN15 15JUN15 15JUN15 15JUN15 15JUN15
F2B 15DEC10 15DEC10 15DEC10 01APR96 01MAY05
F3 01AUG05 01AUG05 01AUG05 01MAY95 01AUG95
F4 01MAY04 01MAY04 01MAY04 01JUN98 01JAN93

5.  Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows: 

EMPLOYMENT-BASED PREFERENCES

First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.      

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers".

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

A.  APPLICATION FINAL ACTION DATES FOR
     EMPLOYMENT-BASED PREFERENCE CASES

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are authorized for issuance to all qualified applicants; and "U" means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the cut-off date listed below.)

Employ-
ment
based
All Charge-
ability 
Areas Except
Those Listed
CHINA-
mainland 
born
EL SALVADOR
GUATEMALA
HONDURAS
INDIA MEXICO PHILIPPINES
1st C C C C C C
2nd C 01SEP12 C 22NOV08 C C
3rd 15FEB16 15AUG13 15FEB16 01SEP04 15FEB16 08AUG08
Other Workers 15FEB16 22APR07 15FEB16 01SEP04 15FEB16 08AUG08
4th C C 01JAN10 C C C
Certain Religious Workers C C 01JAN10 C C C
5th
Non-Regional
Center
(C5 and T5)
C 08FEB14 C C C C
5th
Regional
Center
(I5 and R5)
C 08FEB14 C C C C

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B.  DATES FOR FILING OF EMPLOYMENT-BASED
     VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the cut-off date in the chart may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The cut-off date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file, regardless of priority date.

The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which is earlier than the listed date may file their application.

Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 5.A.) this month for filing applications for adjustment of status with USCIS. 
 

Employment- 
based
All Chargeability 
Areas Except
Those Listed
CHINA-
mainland 
born
INDIA MEXICO PHILIPPINES 
1st C C C C C
2nd C 01JUN13 01JUL09 C C
3rd C 01MAY15 01JUL05 C 01JAN10
Other Workers C 01APR08 01JUL05 C 01JAN10
4th C C C C C
Certain Religious Workers C C C C C
5th
Non-Regional
Center
(C5 and T5)
C 01MAY15 C C C
5th
Regional
Center
(I5 and R5)
C 01MAY15 C C C

6.  The Department of State has a recorded message with the cut-off date information for Final Application Action which can be heard at:  (202) 485-7699.  This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

B.  DIVERSITY IMMIGRANT (DV) CATEGORY FOR THE MONTH 
     OF MAY

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2016 annual limit to 50,000. DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.

For May, immigrant numbers in the DV category are available to qualified DV-2016 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately  
AFRICA 28,300  
ASIA 6,850

Except:
Nepal:      5,525

EUROPE 28,000  
NORTH AMERICA (BAHAMAS)  6  
OCEANIA 1,050  
SOUTH AMERICA,
and the CARIBBEAN
1,020  

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2016 program ends as of September 30, 2016. DV visas may not be issued to DV-2016 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2016 principals are only entitled to derivative DV status until September 30, 2016. DV visa availability through the very end of FY-2016 cannot be taken for granted. Numbers could be exhausted prior to September 30.

C.  THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS 
     WHICH WILL APPLY IN JUNE

For June, immigrant numbers in the DV category are available to qualified DV-2016 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
 

Region All DV Chargeability Areas Except Those Listed Separately  
AFRICA 34,400  
ASIA 8,000 Except:
Nepal:      6,200
EUROPE 34,000  
NORTH AMERICA (BAHAMAS)  10  
OCEANIA 1,100  
SOUTH AMERICA,
and the CARIBBEAN
1,175  

D.  VISA AVAILABILITY DURING THE COMING MONTHS

FAMILY-SPONSORED:

CHINA F4:  The level of applicant demand being received has begun to increase.  Should this pattern continue, it will be necessary to either hold or retrogress this final action date in late summer.  That action would be necessary to hold number use within the overall China Family-sponsored annual limit. 

INDIA F4:  The amount of demand being reported for applicants with priority dates which are significantly earlier than the established cut-off date has increased dramatically in recent months.  As a result, it is likely that this final action date will be retrogressed, possibly as early as June.  This action would be necessary to hold number use within the overall India Family-sponsored annual limit. 

EMPLOYMENT-BASED:

CHINA E3:  There has been an extremely large increase in Employment Third preference applicant demand in recent weeks.  This is likely due to the “downgrading” of status by applicants who had originally filed in the Employment Second preference.  This has resulted in the Third preference final action date being held for the month of May.  Continued heavy demand for numbers will require a retrogression of this date for June to hold number use within the FY-2016 annual limit.
 

During the past month, there have been extremely high levels of Employment-based demand in most categories for cases filed with U.S. Citizenship and Immigration Services for adjustment of status.  If this sudden and unanticipated change in the demand pattern continues, it could impact final action dates in the coming months and possibly require corrective action in some.

E.  OVERSUBSCRIPTION OF THE EL SALVADOR, GUATEMALA, AND
     HONDURAS EMPLOYMENT-BASED FOURTH (E4) AND CERTAIN
     RELIGIOUS WORKERS (SR) PREFERENCE CATEGORIES

There is currently extremely high demand in the E4 and SR categories for applicants from El Salvador, Guatemala, and Honduras.  This demand is primarily for Juvenile Court Dependent cases filed with U.S. Citizenship and Immigration Services for adjustment of status. Pursuant to the Immigration and Nationality Act, this requires implementing E4 and SR Application Final Action Dates for these countries, which will allow the Department to hold worldwide number use within the maximum allowed under the FY-2016 annual limits.  Any forward movement during the remainder of FY-2016 is unlikely although no specific prediction is possible.

A determination as to whether these countries will remain subject to E4 and SR final application dates under the FY-2017 annual numerical limitation will be made in early September.  Future visa availability will depend on a combination of demand for numbers being reported each month, and the extent to which otherwise unused numbers become available.

It is extremely likely that the India and Mexico Employment Fourth Preference categories will also become oversubscribed at some point during the summer months.

F.  OBTAINING THE MONTHLY VISA BULLETIN

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address:

listserv@calist.state.gov

and in the message body type:
Subscribe Visa-Bulletin 
(example: Subscribe Visa-Bulletin)

To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail message to the following E-mail address:

listserv@calist.state.gov

and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa final action dates which can be heard at: (202) 485-7699. The recording is normally updated on/about the 10th of each month with information on cut-off dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:

VISABULLETIN@STATE.GOV

(This address cannot be used to subscribe to the Visa Bulletin.)

Department of State Publication 9514
CA/VO:   April 12, 2016

   

_________________________

IMMIGRANT VISA PREFERENCE NUMBERS FOR MAY 2016

(Based on State Dept. information released on April 12, 2016)

APPLICATION FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES

All Chargeability Areas

CHINA-

mainland born

INDIA

MEXICO

PHILIPPINES

1st

22NOV08

22NOV08

22NOV08

08FEB95

01OCT04

2A*

01NOV14

01NOV14

01NOV14

15AUG14

01NOV14

2B

01SEP09

01SEP09

01SEP09

08SEP95

01MAY05

3rd

01DEC04

01DEC04

01DEC04

08OCT94

22JAN94

4th

22JUL03

22JUL03

22JUL03

08APR97

01OCT92

*For May, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 15AUG14. F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all

countries EXCEPT MEXICO with priority dates beginning 15AUG14and earlier than 01NOV14. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS

All Chargeability Areas

CHINA-

mainland born

INDIA

MEXICO

PHILIPPINES

1st

01OCT09

01OCT09

01OCT09

01APR95

01SEP05

2A

15JUN15

15JUN15

15JUN15

15JUN15

15JUN15

2B

15DEC10

15DEC10

15DEC10

01APR96

01MAY05

3rd

01AUG05

01AUG05

01AUG05

01MAY95

01AUG95

4th

01MAY04

01MAY04

01MAY04

01JUN98

01JAN93

APPLICATION FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

All Chargeability Areas

CHINA-

mainland born

EL SALVADOR GUATEMALA HONDURAS

INDIA

MEXICO

PHILIPPINES

1st

C

C

C

C

C

C

2nd

C

01SEP12

C

22NOV08

C

C

3rd

15FEB16

15AUG13

15FEB16

01SEP04

15FEB16

08AUG08

Other Workers

15FEB16

22APR07

15FEB16

01SEP04

15FEB16

08AUG08

4th

C

C

01JAN10

C

C

C

Certain Religious Workers

C

C

01JAN10

C

C

C

5th Non-Regional Center (C5 and T5)

C

08FEB14

C

C

C

C

5th Regional Center (I5 and R5)

C

08FEB14

C

C

C

C

DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

All Chargeability Areas

CHINA-

mainland born

INDIA

MEXICO

PHILIPPINES

1st

C

C

C

C

C

2nd

C

01JUN13

01JUL09

C

C

3rd

C

01MAY15

01JUL05

C

01JAN10

Other Workers

C

01APR08

01JUL05

C

01JAN10

4th

C

C

C

C

C

Certain Religious Workers

C

C

C

C

C

5th Non-Regional Center (C5 and T5)

C

01MAY15

C

C

C

5th Regional Center (I5 and R5)

C

01MAY15

C

C

C

DIVERSITY IMMIGRANT (DV) CATEGORY

For May, immigrant visa numbers in the DV category are available to qualified DV-2016 applicants chargeable to all regions and eligible countries as follows (visas are available only for applicants with DV lottery rank numbers below the cut-off number): Africa: 28,300; Asia: 6,850, except Nepal: 5,525; Europe: 28,000; North America (Bahamas): 6; Oceania: 1,050; South America and the Caribbean: 1,020.

For June, immigrant visa numbers in the DV category are available to qualified DV-2016 applicants chargeable to all regions and eligible countries as follows (visas are available only for applicants with DV lottery rank numbers below the cut-off number): Africa: 34,400; Asia: 8,000, except Nepal: 6,200; Europe: 34,000; North America (Bahamas): 10; Oceania: 1,100; South America and the Caribbean: 1,175.

Posted in Visa Bulletin, Visa Bulletin For May 2016 | Leave a comment

CA7 finds conviction for felon in possession of a firearm qualifies as an aggravated felony for purposes of removal

Hernandez and his mother entered the U.S. unlawfully when he was a small child. They adjusted their status to that of lawful permanent residents in 1989, when Hernandez was seven. His mother became a naturalized citizen when he was 16, but her naturalization did not confer citizenship on him automatically. Both of his parents would have had to naturalize before he turned 18, or they would have had to legally separate. Neither happened. Over the next 15 years, Hernandez was convicted for three controlled-substance violations, two retail thefts, and as a felon-in-possession of a firearm. In 2015 the government instituted removal proceedings based on his criminal history, under 8 U.S.C. 1227(a)(2)(B)(i); (A)(iii); (C); and (A)(ii), At his hearing, the IJ informed Hernandez of his right to representation and asked whether he wanted a continuance. Hernandez did not respond, but explained that he thought he was a citizen. The IJ determined that Hernandez never obtained citizenship and asked Hernandez whether he feared being harmed if he were returned to Mexico, offering to continue the case to allow him to apply for asylum. Hernandez again declined. After the IJ entered an order of removal, Hernandez obtained counsel. The BIA affirmed. The Seventh Circuit denied his petition for review, rejecting an argument that Hernandez was denied representation by counsel.

Held: 1. Due Process as to counsel is satisfied by giving the alien the opportunity to obtain counsel. 2. His adjustment of status in 1989 was an admission because his original entry was EWI, and therefore he was subject to 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony after admission; and 3. His state conviction as a felon in possession of firearm was an aggravated felony.

_____________________

JULIO ESTRADA-HERNANDEZ, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.

No. 15-2336.
United States Court of Appeals, Seventh Circuit.

Argued March 2, 2016.
Decided March 17, 2016.
RE-ISSUED AS OPINION ON APRIL 8, 2016

Before DIANE P. WOOD, Chief Judge, WILLIAM J. BAUER, Circuit Judge, MICHAEL S. KANNE, Circuit Judge.

Julio Estrada-Hernandez is a 34-year-old Mexican citizen who has been removed from the United States as an alien convicted of controlled-substance offenses, a firearm offense (an aggravated felony), and crimes involving moral turpitude. See 8 U.S.C. § 1227(a)(2). First an immigration judge and then the Board of Immigration Appeals rejected his efforts to avoid removal, and so he has now turned to this court for relief. We find no reason to upset the BIA’s decision, however, and so we deny his petition for review.

I

Estrada-Hernandez and his mother entered the United States unlawfully when he was a small child. They adjusted their status to that of lawful permanent residents (LPRs) in 1989, when Estrada-Hernandez was seven. His mother became a naturalized citizen when he was 16, but a quirk of immigration law prevented her naturalization from conferring citizenship on him automatically. His parents were married, though apparently not happily so. He could have become a citizen in one of two ways: either both of his parents would have had to naturalize before he turned 18, or they would have had to become legally separated. See Citizenship through parents, https://www.uscis.gov/us-citizenship/citizenship-through-parents (last visited Mar. 9, 2016). Neither of those things happened, however.

Over the next 15 years, Estrada-Hernandez was convicted of several state crimes, including three controlled-substance violations, two retail theft convictions, and one charge of felon-in-possession of a firearm. Eventually the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) section became aware of his criminal record and his LPR status. ICE instituted removal proceedings against him in January 2015, charging him with being removable as an alien who after admission to the United States was convicted of three controlled-substance crimes, 8 U.S.C. § 1227(a)(2)(B)(i), and one aggravated felony conviction stemming from a firearm violation, id. § 1227(a)(2)(A)(iii). Estrada-Hernandez was later charged with two additional grounds of removal—one for a firearm violation, id. § 1227(a)(2)(C), arising out of the same conviction as the aggravated felony charge, and one based on convictions for two or more crimes involving moral turpitude, id. § 1227(a)(2)(A)(ii), stemming from two shoplifting incidents.

At Estrada-Hernandez’s removal hearing, the IJ informed him of his right to representation at no cost to the government and asked whether he wished to have the case continued in order to secure counsel. Estrada-Hernandez did not respond; instead, he asked why he was being detained and explained that he thought he had become a citizen when his mother naturalized. The IJ explored the issue and determined that Estrada-Hernandez had never obtained citizenship because his parents had remained legally married. The following colloquy then took place:

IJ: Well, it does not appear to me, sir, you are a citizen of the United States . . . Do you want me to continue your case to give you more time to get a lawyer?
Estrada-Hernandez (E-H): No.
IJ: Do you wish then to represent yourself?
E-H: Yes, I mean what other choices do I have?
IJ: Well, I’m willing to continue the case to give you time to contact the lawyers on that list that you received or any other lawyer that you might wish to contact.
E-H: I’ve tried to—I’m sorry.
IJ: Or any other lawyer that you might wish—
E-H: I’ve already contacted them.
IJ: If you wish to represent yourself today, it’s your right to do so. It includes your right to speak on your own behalf and to present witnesses and evidence in court. You have the right to inspect evidence that the Government presents against you and you may object to such evidence by asking that the Court not consider it. You have the right to question any witness who testifies in your case and if this Court rules against you, you would have the right to appeal to a higher court which is known as the Board of Immigration Appeals. Do you understand these rights?
E-H: Yes, sir.
The IJ then proceeded with the hearing, in the course of which Estrada-Hernandez admitted that he had been convicted of three state controlled-substance offenses (all involving possession of cocaine), retail theft, and possessing a firearm as a felon. Estrada-Hernandez could not remember the other theft that was the basis for the charge of removability as an alien “convicted of two or more crimes involving moral turpitude,” 8 U.S.C. § 1227(a)(2)(A)(ii), but the government offered proof of that conviction by submitting court documents from Cook County. The IJ asked Estrada-Hernandez whether he feared being harmed if he were returned to Mexico, even offering to continue the case to give him more time to consider whether he wished to apply for asylum. Estrada-Hernandez once again declined the IJ’s offer of a continuance. The IJ then pronounced that he was removable on all four grounds charged by the government and entered an order of removal.

Only then did Estrada-Hernandez finally obtain counsel. He appealed to the Board of Immigration Appeals, arguing that remand was warranted to allow him to withdraw the admissions he had made while unrepresented. He asked the Board to “issue a published decision requiring immigration judges to enter a contested plea to all charges in the notice to appear when a noncitizen is appearing in pro per regardless of the reason why he appears without counsel.” Due process requires such a rule, he asserted, because asking uncounseled aliens to admit or deny the allegations against them has the effect of shifting the burden of proof, rather than requiring the agency to prove charges by clear and convincing evidence. Estrada-Hernandez also argued that he was not subject to removal for the aggravated felony conviction because his adjustment of status does not qualify as an admission to the United States and thus § 1227(a)(2)(A)(iii)—which provides that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable” (emphasis added)—does not apply to him. Finally he argued that the IJ erred in finding that his conviction for possessing a firearm as a felon qualified as an aggravated felony because the state crime that was the predicate for that conviction—possessing cocaine, 720 ILCS 570/402(c)—is punishable by imprisonment for “one year or more,” rather than a term of more than one year, and therefore the state crime “does not squarely `fit in’ within the express statutory language of the federal definition.”

The Board rejected all of Estrada-Hernandez’s arguments and upheld the removal order. It concluded that Estrada-Hernandez was afforded due process because the IJ fully complied with the statutory requirement to inform him of his right to obtain counsel, 8 U.S.C. § 1229a(b)(4), and offered repeatedly to continue the case to allow Estrada-Hernandez to obtain representation. The Board dismissed any suggestion that the IJ shifted the burden of proof regarding the charges set forth in the Notice to Appear; the government properly supported its charges with evidence of each conviction. As for the question whether Estrada-Hernandez’s firearms conviction was an aggravated felony for immigration purposes, the Board observed that this court already had resolved the question in the government’s favor. Negrete-Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir. 2008). The Board rejected Estrada-Hernandez’s contention that he was not removable under 8 U.S.C. § 1227(a)(2)(iii) because he was never “admitted” at a border; it held that Abdelqadar v. Gonzales, 413 F.3d 668 (7th Cir. 2005), establishes that adjustment of status qualifies as an admission for purposes of § 1227(a)(2)(A)(iii).

II

Estrada-Hernandez pins his hopes in this petition on his effort to persuade us that the alleged “denial of the right to counsel,” which “includes the substantial interference with that right,” amounted to “a denial of due process under the Fifth Amendment.” He contends that the IJ “coerced and discouraged him from pursuing legal representation” by informing him that he did not derive citizenship through his mother and then by accepting admissions he made in the absence of counsel. And, he asserts, the IJ “excus[ed] the Department from carrying on its own burden of proof” by finding him removable based on his own admissions.

The suggestion of coercion is baseless. The IJ repeatedly offered to continue the case so that Estrada-Hernandez could try to contact a lawyer, but Estrada-Hernandez explicitly declined those offers, confirmed his wish to proceed pro se, and stated that he already had contacted the pro bono attorneys on the list he had been provided. Moreover, it would be impossible for Estrada-Hernandez to show prejudice from counsel’s absence, because the government presented evidence to support each conviction. Although 8 U.S.C. §1229a(b)(4) confers a statutory right to hire one’s own lawyer in an immigration hearing, that right is not derived from the Sixth Amendment right to counsel in a criminal proceeding. The latter right does not apply to removal proceedings, which are regarded as civil in nature. See Magala v. Gonzales, 434 F.3d 523, 525 (7th Cir. 2005); Stroe v. INS, 256 F.3d 498, 500 (7th Cir. 2001); Leslie v. Att’y Gen. of the United States, 611 F.3d 171, 180-81 (3d Cir. 2010). Due process protections do apply in all civil proceedings, including removal hearings, Stroe, 256 F.3d at 500, but we presume that any removal proceeding satisfies due process when it is conducted in accordance with 8 U.S.C. §1229a(b)(4). That statute requires only that a noncitizen be given an opportunity to hire a lawyer. Apouviepseakoda v. Gonzales, 475 F.3d 881, 884-85 (7th Cir. 2007). The IJ made it clear to Estrada-Hernandez that he had this right.

Although Estrada-Hernandez represented at one point that the sole issue on appeal was his complaint about the supposed denial of counsel, he raises two other arguments as well, both of which the Board rejected. First, without addressing the Board’s contrary conclusion, he contends that he is not removable under § 1227(a)(2)(A)(iii), which applies only to aliens who have committed an aggravated felony after admission. His theory is that his adjustment of status, which occurred after he had entered the United States unlawfully, does not qualify as an “admission” under 8 U.S.C. § 1101(a)(13)(A). Ergo, he reasons, he committed no felonies, aggravated or otherwise, after admission because he was never “admitted.” He bases this argument on Abdelqadar v. Gonzales, 413 F.3d 668 (7th Cir. 2005), which he calls the “seminal case” holding that an alien who is not inspected by an immigration officer at entry has never been admitted and is not subject to removal under § 1227. Abdelqadar, Estrada says, has been “consistently followed [in the Seventh Circuit], as it must, by a series of published decisions with full unconditional approval.”

That is not what Abdelqadar holds. Indeed, it is distinctly unhelpful for Estrada-Hernandez. Citing Matter of Rosas-Ramirez, 22 I. & N. 616 (BIA 1999) (en banc), the Abdelqadar court endorsed the Board’s interpretation that, for an alien who had entered the United States illegally, an adjustment of status is an “admission” for purpose of § 1227(a)(2)(A)(iii) because the adjustment of status is the first point at which that individual is lawfully in the United States. Abdelqadar, 413 F.3d at 672-73. Otherwise, illegal entrants would be exempt from removal and would, paradoxically, enjoy greater rights than lawful immigrants. Id. at 673; see also Ocampo-Duran v. Ashcroft, 254 F.3d 1133, 1134-35 (9th Cir. 2001) (rejecting argument that alien who adjusted to lawful status after illegal entry was never admitted for purposes of § 1227(a)(2)(A)(iii)). Estrada-Hernandez mistakenly relies on an inapposite passage from Abdelqadar, in which we rejected the Board’s view that the word “admission” in another part of the statute, § 1227(a)(2)(A)(i), referred to the most recent, rather than the initial, entry. 413 F.3d at 673-74. Indeed, we cautioned in Abdelqadar that “the whole point of contextual reading is that context matters—and the context of the word `admission’ in [one part of the statute] differs substantially from its context in [another].” Id. at 674. See Lemus-Losa v. Holder, 576 F.3d 752, 757 (7th Cir. 2009).

Estrada-Hernandez argues finally that the Board erred by concluding that his state conviction under 720 ILCS § 5/24-1.1(a) for being a felon in possession of a firearm qualifies as an aggravated felony for purposes of removal. See 8 U.S.C. § 1227(a)(2)(A)(iii). The state crime does not “squarely fit [ ] with the express statutory language of [the analogous federal offense, 18 U.S.C. § 922(g)(1)],” he contends, because his predicate state felony conviction for possession of cocaine is punishable by imprisonment of not less than one year, while federal law defines a felony as a crime punishable by a sentence of more than one year. But as the government correctly points out, the relevant inquiry is whether the Illinois felon-in-possession offense (of which Estrada-Hernandez was convicted) qualifies as an aggravated felony, and this court has already concluded that it does. See Negrete-Rodriguez v. Mukasey, 518 F.3d 497, 500-02 (7th Cir. 2008).

Finally, it is worth noting that Estrada-Hernandez challenges only the IJ’s finding that he is subject to removal based on an aggravated felony conviction. He has not challenged the IJ’s ruling that he was also subject to removal based on convictions for two or more crimes involving moral turpitude, three controlled substance convictions, and a conviction for a firearm offense. Given our finding that the removal proceedings were not tainted by any due process violation and the ample support the government furnished, we DENY the petition for review.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Adjustment of Status, Adjustment of status is an admission, Aggravated felony, Due process right to counsel, possession of firearm | Leave a comment

CA7 affirmed denial of I-130 of bona fide marriage on basis of prior fraudulent marriage to another woman

Mohit and Ankush Seghal filed an I-130 petition seeking lawful permanent resident status for Mohit, who is a citizen of India, as the husband of Ankush, who is a U.S. citizen. The petition was denied as Mohit had tried years earlier to gain lawful residence in the U.S. by a fraudulent marriage to another woman, making him ineligible for relief even though his marriage to Ankush is legitimate, 8 U.S.C. 1154(c). The decision to grant or deny an I-130 petition is not a matter of agency discretion, and Mohit is not subject to a removal order, so he properly challenged the denial in the district court under the Administrative Procedure Act. The district court found that substantial evidence supported the agency’s finding of marriage fraud and thus granted summary judgment against the Seghals. The Seventh Circuit affirmed. Although the agency’s handling of the case involved procedural errors, the decision was legally sound. Substantial evidence, including Mohit’s own written admission, supported the agency’s finding that Mohit’s earlier marriage was fraudulent. Sehgal v. Lynch, No. 15-2334 (7th Cir. 2016)

___________________________

In the United States Court of Appeals For the Seventh Circuit No. 15-2334

ANKUSH SEHGAL and MOHIT SEHGAL

Plaintiffs-Appellants,

v.

LORETTA E. LYNCH, Attorney General of the United States, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 13 C 8576 — John Robert Blakey, Judge.

ARGUED DECEMBER 15, 2015 — DECIDED FEBRUARY 22, 2016

Before BAUER, POSNER, and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge. This appeal arises from an unusual immigration case that was filed properly in the district court. Plaintiffs Mohit and Ankush Seghal filed an “I-130” pe- tition seeking lawful permanent resident status for Mohit, who is a citizen of India, as the husband of Ankush, who is a citizen of the United States. Immigration authorities denied their petition on the ground that Mohit had tried years earlier to gain lawful residence in the United States by a fraudulent marriage to another woman. That made him ineligible for re- lief even though his marriage to Ankush is legitimate. See 8 U.S.C. § 1154(c).

The decision to grant or deny an I-130 petition is not a mat- ter of agency discretion, and Mohit is not subject to a removal order. The proper means to challenge the denial is therefore a suit in the district court under the Administrative Procedure Act, 5 U.S.C. §§ 702 & 703. See Ogbolumani v. Napolitano, 557 F.3d 729, 733 (7th Cir. 2009); Ruiz v. Mukasey, 552 F.3d 269, 274-76 (7th Cir. 2009). The Seghals sued under the APA.

The district court found that substantial evidence sup- ported the agency’s finding of marriage fraud and thus granted summary judgment against the Seghals. We affirm. Although the agency’s handling of this case has involved procedural errors that are difficult to understand, the bottom-line decision was legally sound. Substantial evidence, including Mohit’s own written admission, supports the agency’s finding that Mohit’s earlier marriage was fraudulent, so the denial of Ankush’s I-130 petition on his behalf was correct.

We begin with the story of Mohit’s earlier marriage to Renee Miller. Mohit Sehgal entered the United States lawful- ly on a visitor’s visa in September 2000 but overstayed his visa. Three years later, in June 2003, he married Renee Miller, a United States citizen. She then submitted on Mohit’s behalf a Form I-130, called a Petition for Alien Relative, to have him recognized as an immediate relative for immigration purposes. See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1). At the same time, Mohit filed a Form I-485 application to adjust his status to lawful permanent resident based on his claimed family relationship to U.S. citizen Miller. See 8 U.S.C. § 1255(a).

Immigration authorities investigated the marriage be- tween Mohit and Miller and concluded that it was not a good faith marriage. During a 2005 interview concerning Miller’s I-130 petition, Mohit and Miller asserted that they lived to- gether at the home of Mohit’s mother. An immigration agent had telephoned Mohit’s mother in March 2005 and was told that she had “no idea” where to find Miller and had no means of contacting her. Based on that conversation and the lack of evidence of a “joint marital union,” Miller’s petition was denied in November 2005 by United States Citizenship and Im- migration Services (“USCIS”).

Miller responded by submitting additional evidence to bolster the claim of a legitimate marriage. She included bank statements from a joint account, rent receipts purportedly from Mohit’s mother, and two sworn statements in the mother’s name saying that Miller and Mohit had lived with her since June 2003. Almost a year after receiving those doc- uments, in December 2006, USCIS reopened the proceedings on Miller’s I-130 petition.

By then, however, the marriage between Miller and Mohit had ended. Miller gave birth in 2007, and USCIS received a letter apparently signed by Mohit admitting that he was not the child’s father. Miller later obtained a court order of protection against Mohit. In July 2008, an Illinois court entered a default judgment dissolving the marriage. The judgment noted that the parties had separated around October 2003, just four months after they married. Afterward, in December 2008, Miller and Mohit both failed to appear for a scheduled interview with USCIS. In March 2011 the agency denied the reopened I-130 petition on the ground that there no longer was a marital relationship.

In the meantime, in September 2009, agents working for Immigration and Customs Enforcement (“ICE”) had arrested Mohit while investigating the woman who had prepared Miller’s I-130 petition for brokering fraudulent marriages. Her name was Teresita Zarrabian, and she eventually pled guilty to conspiring to defraud the United States under 18 U.S.C. § 371. She was sentenced to three years in prison. United States v. Zarrabian, No. 13-cr-00106-1 (N.D. Ill. July 1, 2015).

Mohit gave the ICE agents a sworn confession admitting that he had paid Zarrabian and Miller for help in obtaining permanent residency by marrying Miller. Zarrabian had introduced him to Miller, he said, and arranged the marriage in exchange for $18,000 to be shared by the two women. Mohit’s confession concluded by saying that his union with Miller “was not a real marriage” and was done so that he could obtain “permanent status” in the United States. Mohit initialed the three pages of text and swore that he had read each page of the confession and had given it “freely and voluntarily.”

In March 2011, Miller gave ICE agents a written statement corroborating Mohit’s earlier confession that their marriage had been a sham. That handwritten statement, which was not shared with Mohit until the district court proceedings, explained that Miller was promised $5,000 to marry him. The couple had intended to divorce, the statement continued, after Mohit received a “green card.” Although the agent who faxed Miller’s statement wrote on the transmittal page that it was sworn, no language in the statement itself shows that Miller had signed it under penalty of perjury.

Mohit’s confession of the earlier marriage fraud and the corroborating 2011 statement by Miller suffice to support the finding of fraud. See Ogbolumani v. Napolitano, 557 F.3d 729, 733–34 (7th Cir. 2009) (concluding that USCIS did not err in basing denial of petition on admission of marriage fraud); Aioub v. Mukasey, 540 F.3d 609, 612 (7th Cir. 2008) (admissions that marriage was entered into in exchange for money and access to apartment and vehicle provided “substantial evidence” that marriage was fraudulent); Ghaly v. INS, 48 F.3d 1426, 1431 (7th Cir. 1995) (upholding denial of petition based on sworn statement admitting marriage fraud); Matter of Isber, 20 I. & N. Dec. 676, 679 (BIA 1993) (explaining that spouse’s admission that she married alien as favor to help him obtain permanent residency shows that they “did not intend to establish a life together as husband and wife when they married”). Moreover, Mohit’s story contains numerous inconsistencies, including the dates he allegedly lived with and separated from Miller. See Reynoso v. Holder, 711 F.3d 199, 207 (1st Cir. 2013) (explaining that record did not compel conclusion of bona fide marriage when oral and written statements were inconsistent).

On appeal, the Seghals attempt to undermine this evidence of marriage fraud by attacking both Miller’s handwritten statement and Mohit’s September 2009 sworn confession to ICE agents.

Miller’s Statement: First, the Sehgals contend, Miller’s statement should be disregarded as unreliable hearsay. Hearsay is admissible in immigration proceedings as long as it is probative and its use is not fundamentally unfair. See Ogbolumani, 557 F.3d at 734; Olowo v. Ashcroft, 368 F.3d 692, 699 (7th Cir.2004).

Miller’s handwritten statement details the scheme between Miller, Mohit Sehgal, and Zarragian to commit mar- riage fraud. It is highly probative as to whether Mohit entered into a marriage to gain an immigration benefit. And the Sehgals give no reason to question the statement’s reliability other than the fact that it is unsworn. Their speculation about Miller’s motive for writing the statement and the “chain of custody” is insufficient to undermine the evidence. See Og- bolumani, 557 F.3d at 734; Doumbia v. Gonzales, 472 F.3d 957, 962–63 (7th Cir. 2007).

But we also now know that USCIS and the Board did mis- characterize Miller’s statement as “sworn.” Twice in its brief to this court the government referred to Miller’s statement as “sworn,” despite the assertion in the Seghals’ brief that it was not. The government’s brief would not be cause for concern if it were accurate, but elsewhere in the same brief (and when pressed at oral argument) the author of the brief conceded that Miller’s statement was not sworn.

It is difficult to understand how the government could take both positions. It seems from the record that the government was content to continue mischaracterizing Miller’s state- ment as sworn until after a copy finally was shown to the Sehgals during the proceedings in the district court. The time to have set the record straight was immediately after USCIS mischaracterized Miller’s statement as sworn, not more than four years later after that same mistake was made in submissions to the BIA, the district court, and now this court. The label matters. As the Sehgals correctly argue, Miller’s state- ment may have been weighed more heavily than it should have been if it had been known to be unsworn. See Yu Yun Zhang v. Holder, 702 F.3d 878, 881–82 (6th Cir. 2012) (recognizing that affidavits often are given more weight than unsworn statements); Zuh v. Mukasey, 547 F.3d 504, 509 (4th Cir. 2008) (same).

Still, although we are disappointed by the government’s sloppiness, this error by USCIS and the Board was harmless. Miller’s handwritten statement is corroborated in large part by Mohit’s September 2009 confession. That confession was sworn and came from Mohit himself, and it was clearly an ad- mission against interest. See 5 U.S.C. § 706 (instructing reviewing court to take “due account” of “rule of prejudicial error”); People of the State of Ill. v. I.C.C., 722 F.2d 1341, 1348 (7th Cir. 1983) (recognizing harmless error as exception to Chenery doctrine). And given Mohit’s confession, Miller’s statement was not necessary to the finding of marriage fraud.

Mohit Seghal’s Confession: We now turn to the Seghals’ at- tack on Mohit’s own confession of marriage fraud. Recall that Mohit had made that confession in writing in 2009 after he was arrested by ICE agents. Mohit was released without charges and four months later married Ankush, who filed a new I-130 petition on Mohit’s behalf. The Seghals argue that Mohit’s confession was coerced, is not reliable, and thus does not provide substantial evidence of fraud.

The exclusionary rule does not ordinarily apply in immi- gration proceedings. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984); Martinez-Camargo v. INS, 282 F.3d 487, 492 (7th Cir. 2002). Suppression may be justified, however, if evidence was obtained under circumstances involving “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.” Lopez-Martinez, 468 U.S. at 1050–51; see Gutierrez-Berdin v. Holder, 618 F.3d 647, 652 (7th Cir. 2010); Martinez-Camargo, 282 F.3d at 492; Matter of Toro, 17 I. & N. Dec. 340, 343 (1980).

An alien claiming coercion by government officials “must come forward with proof establishing a prima facie case be- fore the Service will be called on to assume the burden of jus- tifying the manner in which it obtained the evidence.” In re Burgos, 15 I. & N. Dec. 278, 279 (BIA 1975); see Luevano v.Holder, 660 F.3d 1207, 1212 (10th Cir. 2011).

Mohit first asserted coercion on March 15, 2011, when he and Ankush were interviewed in connection with her I-130 petition. Mohit asserted that he had not been given a copy of the 2009 written confession. He claimed that while he was in ICE custody, he had been “handcuffed despite being in a cast,” “almost tortured,” and “kept in a dark room and then in a stinking bathroom in the dark.” According to Mohit’s new account, which again was sworn, he had married Miller with the “honest perception” that he “would live a life with her.”

Days later the director of a USCIS field office issued a no- tice of intent to deny Ankush’s I-130 petition on the ground that Mohit’s marriage to Miller had been fraudulent. Al- though Mohit and Miller had submitted “significant evi- dence of marital union,” the notice explained, that evidence was “impossible to reconcile” with the admissions of marriage fraud from both. The notice quoted in full Miller’s hand-written statement (which the agency characterized as sworn). The notice also acknowledged but rejected Mohit’s repudiation of his confession. USCIS invited the Sehgals to submit additional evidence to prove that Mohit’s marriage to Miller had been bona fide.

Mohit submitted an affidavit swearing that the marriage had been “real” and elaborating on his confession to the ICE agents. His admission of fraud, he attested, was given under duress:

I was in the custody of immigration officials who were threatening me with all kinds of things. They had me sign a statement without letting me read it first. They told me I had to sign it. In addition, I was in an accident shortly before I was taken into custody, and was on medication and had my hand in a cast. Despite the fact that I told the immigration officers both of these facts, they still kept me handcuffed, on my casted hand, and made me sign a statement without reading it.

The affidavit said nothing about torture or being held in a dark “stinking bathroom,” as Mohit had claimed during his March 2011 interview. Mohit submitted medical records showing that he had gone to a hospital emergency room complaining of pain from kidney stones five days before he was arrested and confessed. Also, Ankush submitted a letter offering her own assessment that Mohit would not commit fraud and had “genuine” intentions in marrying Miller.

Mohit’s allegations of coercion are too vague and incon- sistent to undermine his confession of fraud. See Matter of Is- ber, 20 I. & N. Dec. at 679 (explaining that spouse’s “general claim of duress is insufficient to retract her detailed admissions as to the fraudulent nature of her marriage”). His two statements claiming coercion, made only weeks apart, were not even consistent with each other. In the first Mohit said he was “almost tortured,” but in the second he asserted only that

he was handcuffed despite his arm being in a cast. Mohit did not say how agents threatened him or say what the agents said during his interview. The agents could have “threatened” to do something entirely lawful. See Rajah v. Mukasey, 544 F.3d 427, 445 (2d Cir. 2008) (explaining that “threat of criminal sanctions for willfully failing to provide required regulatory information does not make providing the information coercive”).

Mohit submitted medical records showing he was in pain around the time of the interview. He has never disclosed what medication he was taking, nor did he submit an affidavit from his doctor or other medical evidence suggesting that the med- ication would have undermined the voluntariness of his confession. And Mohit’s remaining assertions are not the kind of “egregious” actions calling for suppression of evidence. See Gutierrez-Berdin, 618 F.3d at 652–53 (explaining that “self-serving affidavit” alleging “very minor physical abuse coupled with aggressive questioning” did not warrant suppression); Oliva-Ramos v. Attorney Gen. of U.S., 694 F.3d 259, 279 (3d Cir. 2012) (listing factors relevant to egregiousness inquiry, including whether agents resorted to unreasonable shows of force or physical abuse).

Accordingly, the Seghals have not shown sufficient reason to discount either Mohit’s own confession of marriage fraud or Miller’s written corroboration. They have not shown that the agency decision was made without substantial sup- porting evidence.

The Sehgals also raise procedural objections to the agen- cy’s decision. They argue that USCIS violated one of its own regulations by not providing them with a copy of Miller’s handwritten letter during the administrative proceedings.

The regulation, 8 C.F.R. § 103.2(b)(16)(ii), prohibits the agency from basing a determination of statutory eligibility on in- formation that has not been disclosed to the applicant or petitioner. We have stressed before that “the better procedure” is for agencies to “produce the statement in question,” Ghaly, 48 F.3d at 1435, and we are puzzled by USCIS’s continued failure to do so. See id. at 1437 (Posner, J., concurring) (describing refusal to provide statement as “inexplicable, offensive, and absurd, as well as contrary to the INS’s regulations”).

This point is especially relevant where, as in this case, the government has mischaracterized evidence with an error that would have been caught much earlier if the Sehgals had been allowed to see the evidence. But we also have recognized that a summary can suffice, see id. at 1434–35, and here USCIS provided more than the summary that we found in Ghaly was ad- equate. The notice USCIS sent to the couple repeated Miller’s handwritten statement verbatim, though as noted it did not show that her statement was not sworn.

Finally, the Sehgals contend that the Board erroneously ignored “egregious conduct” by USCIS. The agency had told the Sehgals that it forwarded their appeal to the Board when in fact it had not done so (and did not do so for another year after making that representation). This error and delay were also unfortunate, yet the Sehgals do not identify any regulation that USCIS violated, nor do they say how they were harmed by the agency’s error. Delay alone, we have ex- plained, “does not constitute ‘affirmative misconduct’ on the part of the government.” Mudric v. Attorney Gen. of U.S., 469 F.3d 94, 99 (3d Cir. 2006); see INS v. Miranda, 459 U.S. 14, 19 (1982) (explaining that government’s failure to process appli- cation promptly “falls far short” of affirmative misconduct);see also Rajah, 544 F.3d at 445 (characterizing “[i]mpoliteness and slow service” as “unfortunate, but not uncommon, characteristics of many ordinary interactions with government agencies”).

To conclude, the agency had substantial evidence, in the form of Muhit Sehgal’s and Miller’s written confessions to marriage fraud, as well as the inconsistencies found in the original investigation of their marriage, to support the finding that Muhit had engaged in marriage fraud. He is therefore in- eligible for relief under the I-130 petition that Ankush filed on his behalf. The judgment of the district court is

AFFIRMED.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, I-130 petition, I-485 Application to Register Permanent Residence or to Adjust Status, Marriage Fraud | Leave a comment

CA7 upholds finding of marriage fraud making adjustment applicant inadmissible and ineligible for adjustment of status

Zyapkov, a Bulgarian citizen, entered the U.S. in 2002 with a visitor’s visa. His daughter had entered two years earlier and eventually obtained citizenship through the “diversity lottery,” 8 U.S.C. 1153(c). Three months after Zyapkov’s arrival, he married Gregory, a U.S. citizen. Gregory and, later, Zyapkov’s daughter filed Form I‐130 “immediate relative” petitions on his behalf. Gregory’s petition was pending in 2008 when DHS initiated removal proceedings accusing Zyapkov of overstaying his visa and working as a truck driver without authorization. USCIS denied Gregory’s petition based on a conclusion that the marriage to was a sham. Zyapkov unsuccessfully sought a continuance. The finding of marriage fraud would make Zyapkov inadmissible, 8 U.S.C. 1182(a)(6)(C)(i), and ineligible for permanent residency regardless of his daughter’s pending petition. The Board dismissed his appeal of the removal order. The following month, with his daughter’s approved I‐130 petition approved, Zyapkov successfully asked the Board to reopen. He sought to adjust his status to permanent resident. On remand the IJ conducted hearings, denied Zyapkov’s application to adjust his status, and denied relief from removal, based on inconsistencies in testimony about the marriage. The Board and the Seventh Circuit affirmed. Since Zyapkov is inadmissible, he is ineligible for adjustment of status; even assuming eligibility, there was no legal or constitutional error in the IJ’s exercise of discretion. Zyapkov v. Lynch, No. 15-2063 (7th Cir. 2016)

___________________
ZYAPKOV v. Lynch, Court of Appeals, 7th Circuit 2016
NIKOLAY ZYAPKOV, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 15-2063

United States Court of Appeals, Seventh Circuit.
Argued December 16, 2015.
Decided March 29, 2016.

Before MANION, KANNE, and WILLIAMS, Circuit Judges.

MANION, Circuit Judge.

Nikolay Zyapkov, a Bulgarian citizen, applied to become a lawful permanent resident based on his marriage to a U.S. citizen. An immigration judge denied that application in a decision upheld by the Board of Immigration Appeals. Zyapkov petitions for review of the Board’s decision, but we conclude that his challenges to that decision are without merit.

I. Background.

Zyapkov entered the United States in 2002 with a six-month visitor’s visa. His daughter and ex-wife had come to the United States two years earlier, and both eventually obtained citizenship through the “diversity lottery,” which allows randomly selected entrants from countries with low immigration rates to apply for permanent residency. See, generally, 8 U.S.C. § 1153(c); Nyaga v. Ashcroft, 323 F.3d 906, 907-09 (11th Cir. 2003). Three months after Zyapkov’s arrival, he married Juanita Gregory, a U.S. citizen.

From that point Zyapkov’s efforts to remain in the United States became tangled, as both Gregory and later his daughter (after becoming a citizen in February 2010) filed Form I-130 petitions on his behalf. An approved I-130 petition would have verified Zyapkov to be an immediate relative of Gregory or his daughter, see 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1), and thus allowed him to apply for permanent residency using a Form I-485, see 8 U.S.C. § 1255(a). Gregory’s I-130 petition was still pending in 2008 when the Department of Homeland Security served Zyapkov with a Notice to Appear in removal proceedings accusing him of overstaying his visitor’s visa and working as a long-haul truck driver without authorization. See 8 U.S.C. § 1227(a)(1)(B), (a)(1)(C)(i). Soon after that, Gregory’s I-130 petition was denied by United States Citizenship and Immigration Services (“USCIS”) because that agency’s investigators had concluded that Gregory’s marriage to Zyapkov was a sham intended to gain him immigration benefits. See id. § 1154(c)(2). Later, though, in September 2010, USCIS approved the daughter’s I-130 petition.

USCIS’s finding of marriage fraud relied heavily on its conclusion that Gregory was in a relationship, and sharing an apartment, with another woman while purportedly married to Zyapkov. Neighbors, as well as the woman’s brother, had confirmed the relationship to investigators, and the names of both women were on the mailbox at the apartment. Gregory also had contradicted herself about her marital status, first telling USCIS investigators that she and Zyapkov were separated and later saying in a written statement that the couple remained married but she stayed with the other woman when Zyapkov was on the road. Investigators had visited the address on Gregory’s state-issued identification card, where an owner of the house claimed that he was letting Zyapkov and Gregory live for free in several rooms because they were poor. Yet a neighbor who was shown photographs identified the woman seen at the house with Zyapkov as his ex-wife, not Gregory. And the investigators had noted that the rooms purportedly made available to Zyapkov and Gregory were being renovated and appeared to be unoccupied, e.g., the refrigerator and kitchen cabinets were empty, as were the bedroom closets.

After USCIS denied Gregory’s I-130 petition, Zyapkov sought a continuance of the removal proceedings in order to challenge that decision. His daughter’s I-130 petition had not yet been granted, and without an approved I-130 petition he could not take the next step of applying to adjust his status to permanent resident. More significantly, the finding of marriage fraud, if left unchallenged, would make Zyapkov statutorily inadmissible, see 8 U.S.C. § 1182(a)(6)(C)(i), and thus ineligible for permanent residency whether or not his daughter’s I-130 petition should be approved.

The immigration judge (“IJ”) denied the requested continuance and ordered Zyapkov removed. The Board dismissed his appeal in August 2010, which, by leaving the finding of marriage fraud undisturbed, might appear to have ended the matter. But the following month, with his daughter’s approved I-130 petition now in hand, Zyapkov asked the Board to reopen the removal proceedings and also filed a Form I-485 seeking to adjust his status to permanent resident. In December 2010 the Board granted the motion to reopen and instructed the IJ to determine Zyapkov’s “statutory eligibility and discretionary worthiness” to remain in the United States. The Board reasoned that the daughter’s approved I-130 petition appeared to make Zyapkov eligible for adjustment of status, though it said nothing about the finding of marriage fraud or the resulting bar to admissibility.

On remand the IJ conducted five hearings from December 2010 to January 2013 on Zyapkov’s application for adjustment of status. In opposing that application, the government relied on USCIS’s conclusion that Zyapkov had tried to gain immigration benefits by entering into a sham marriage with Gregory. Zyapkov countered with his own testimony that the marriage was genuine. Gregory is not a lesbian, he insisted, nor had they ever been separated. They lived together, Zyapkov explained, although working as a truck driver takes him out of town for long stretches. He and Gregory share bank accounts and credit cards, said Zyapkov, though mostly they pay for expenses in cash.

Gregory also testified, but she contradicted Zyapkov. She said they were separated from 2006 to 2008. She also explained that, when they first had met, she and Zyapkov communicated by using a computer to translate between English and Bulgarian. Because of his job, though, she sometimes would see him only two or three times a month. She denied being in a lesbian relationship.

Zyapkov’s daughter was available to testify, but instead his lawyer proffered that the daughter stood by her I-130 petition. The IJ questioned, though, how USCIS could have granted the daughter’s petition, except unwittingly, after denying Gregory’s I-130 petition because of marriage fraud.

The IJ denied Zyapkov’s application to adjust his status to permanent resident and also denied relief from removal. The IJ first pointed out the inconsistencies in Zyapkov’s and Gregory’s accounts about where they had lived and whether they had separated. The IJ acknowledged Zyapkov’s assertion that these inconsistencies could be explained by his frequent work-related absences, but the IJ found that explanation neither “convincing” nor “persuasive.” The IJ opined that Zyapkov had not explained “how he supports his wife and even where he keeps his income from his business” because the couple’s joint accounts showed minimal deposits. Based on the evidence, the IJ agreed with USCIS’s finding that Gregory’s marriage to Zyapkov was a sham. And that sham marriage coupled with Zyapkov’s false testimony, the IJ reasoned, meant that Zyapkov was inadmissible under § 1182(a)(6)(C)(i) and therefore ineligible to adjust his status.[1] As an alternative basis for denying relief, the IJ concluded that Zyapkov did not merit a favorable exercise of discretion even if eligible.

Zyapkov, through counsel, appealed the IJ’s decision but did not submit a brief. His notice of appeal to the Board says only that the IJ did not “adequately consider the basis” for adjustment of status because, in his view, the IJ put too much weight on his marriage and “unfairly punished” him for “an allegation of prior marriage fraud, without the examination of any of the Government’s witnesses who claimed knowledge of an alleged fraud.”

The Board dismissed the appeal, giving this explanation:

We will assume for purposes of the appeal that the Immigration Judge erred in finding marriage fraud pursuant to section 204(c) of the Act, 8 U.S.C. § 1154(c), and in deeming the respondent inadmissible under section 212(a)(6)(C)(i) of the Act [8 U.S.C. § 1182(a)(6)(C)(i)], and we will assume for purposes of the appeal that the respondent is statutorily eligible to adjust his status under section 245(a) of the Act [8 U.S.C. § 1255(a)]. We agree, however, with the Immigration Judge’s denial of the respondent’s applications for both adjustment of status and voluntary departure in the exercise of discretion.

Zyapkov’s removability—which he conceded because he overstayed his visitor’s visa as charged in the NTA—is separate from his burden to prove eligibility for an adjustment of status. See Matovski v. Gonzales, 492 F.3d 722, 737-39 (6th Cir. 2007).

The Board noted that it “weigh[ed] heavily against” Zyapkov “that his marriage has been deemed not bona fide” and concluded that he had “not presented sufficient positive equities” to outweigh that finding.

II. Analysis.

Zyapkov has petitioned for review, and the parties are in agreement that we review the IJ’s decision as supplemented by the Board. See Pawlowska v. Holder, 623 F.3d 1138, 1141 (7th Cir. 2010); Ssali v. Gonzales, 424 F.3d 556, 561 (7th Cir. 2005). On that understanding, we conclude that the Board, although skipping without explanation the question of Zyapkov’s eligibility to adjust status, left intact the IJ’s finding of inadmissibility under § 1182(a)(6)(C)(i)). The parties’ positions are vague but appear to be in line with our reading of the Board’s decision: The government says that the Board simply assumed that Zyapkov was eligible for adjustment of status, while Zyapkov directly challenges the IJ’s finding of ineligibility. We start with that question.

A. Zyapkov was ineligible for adjustment of status.

Section 1255(a) of Title 8 provides that an alien is eligible to seek adjustment of status only if admissible into the United States, but Zyapkov’s misrepresentations about his marriage would have made him inadmissible under § 1182(a)(6)(C)(i). Only after an alien has established eligibility to adjust his status does an IJ have discretion to grant that relief. Munoz-Avila v. Holder, 716 F.3d 976, 977-78 (7th Cir. 2013); Kimani v. Holder, 695 F.3d 666, 668 (7th Cir. 2012). The question of admissibility is important for Zyapkov, not only as it relates to his present eligibility to adjust his status, but also because a determination of inadmissibility under § 1182(a)(6)(C)(i) will permanently bar Zyapkov from readmission to the United States. See Nguyen v. Mukasey, 522 F.3d 853, 855 (8th Cir. 2008); Singh v. Gonzales, 451 F.3d 400, 402-03 (6th Cir. 2006); Ymeri v. Ashcroft, 387 F.3d 12, 18 (1st Cir. 2004).

In most circumstances, it might be appropriate to bypass the question of admissibility—as the Board seems to have done here—and address only whether the IJ committed legal or constitutional error in exercising discretion to deny adjustment of status. See Jankovic v. Lynch, 811 F.3d 265, 266 (7th Cir. 2016); Darif v. Holder, 739 F.3d 329, 337 (7th Cir. 2014); Alsagladi v. Gonzales, 450 F.3d 700, 701 (7th Cir. 2006). But given the permanent bar to admission we address Zyapkov’s argument that his marriage to Gregory was not fraudulent. See I.N.S. v. Bagamasbad, 429 U.S. 24, 26-27 (1976); Patel v. I.N.S., 811 F.2d 377, 381 (7th Cir. 1987); Kirong v. Mukasey, 529 F.3d 800, 803 (8th Cir. 2008). And the IJ’s finding that Zyapkov is statutorily ineligible for adjustment is fully reviewable. See Hussain v. Mukasey, 518 F.3d 534, 536 (7th Cir. 2008); Parlak v. Holder, 578 F.3d 457, 462-63 (6th Cir. 2009).

Zyapkov argues that the IJ failed to make an independent determination based on the record and, instead, accepted the government’s version of events while ignoring his evidence that the marriage was bona fide. We disagree. The IJ permissibly accepted USCIS’s denial of Gregory’s I-130 petition as evidence that the couple’s marriage was fraudulent. See Antia-Perea v. Holder, 768 F.3d 647, 656-58 (7th Cir. 2014) (explaining that to be admissible evidence must be at least probative and reliable); Pouhova v. Holder, 726 F.3d 1007, 1011 (7th Cir. 2013); Malave v. Holder, 610 F.3d 483, 487 (7th Cir. 2010). What’s more, the results of USCIS’s investigation was not the only evidence before the IJ: Both Zyapkov and Gregory testified, and the IJ pointed out that they could not agree about where they had lived and whether they had separated. Zyapkov ignores that the IJ found him not credible, and concluded that prolonged absences because of his work as a truck driver did not explain these inconsistencies, and further that Zyapkov had not explained how he supports his wife financially or where he deposits his income. Thus, substantial evidence supports the IJ’s finding that Zyapkov committed marriage fraud. See Surganova v. Holder, 612 F.3d 901, 903-04 (7th Cir. 2010) (explaining that finding of marriage fraud must be supported by record evidence that is reasonable, substantial, and probative); Vladimirov v. Lynch, 805 F.3d 955, 960-62 (10th Cir. 2015) (denying petition for review where substantial evidence of marriage fraud included inconsistent statements about relationship).

B. The IJ committed no legal error in denying adjustment of status.

Since Zyapkov is inadmissible, he is ineligible for adjustment of status. But even assuming eligibility, as the Board did, there was no legal or constitutional error in the IJ’s exercise of discretion. See 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D); Sokolov v. Gonzales, 442 F.3d 566, 569-70 (7th Cir. 2006); Mele v. Lynch, 798 F.3d 30, 31-33 (1st Cir. 2015). Zyakpkov argues that he was denied due process because, in his view, the IJ “accorded an over-abundance of weight to the Government’s claims based on an alleged on-sight investigation.”

But there is no due process right to discretionary relief. Instead we review the legal sufficiency of the removal proceeding. See Darif, 739 F.3d at 335-36; Delgado v. Holder, 674 F.3d 759, 765-66 (7th Cir. 2012). Zyapkov contends that the proceeding was inadequate because the government did not call the investigators to testify about their determination that he committed marriage fraud. Thus, he says, he didn’t have opportunity to cross-examine the investigators and refute their conclusion. Yet Zyapkov was free to, but did not, seek approval from the IJ to subpoena the investigators himself. See 8 U.S.C. § 1229a(b)(1); 8 C.F.R. § 1003.35(b)(1), (2). And he points to no regulation requiring the government to call its investigators to testify. The burden was on Zyapkov to prove himself admissible and eligible for discretionary relief, as well as to present positive equities that would warrant a favorable exercise of discretion. See 8 C.F.R. § 1240.8(d); Dakura v. Holder, 772 F.3d 994, 998 (4th Cir. 2014) (alien carries burden for showing admissibility and eligibility); Matovski, 492 F.3d at 739 (alien carries burden of presenting positive equities). Zyapkov had multiple opportunities over two years to present evidence of his truthfulness— including six hearings before the IJ—but his evidence and testimony were unconvincing. See Ortiz-Estrada v. Holder, 757 F.3d 677, 679 (7th Cir. 2014) (explaining that alien challenging legality of removal hearing must show he was denied a reasonable opportunity to present evidence and that he was prejudiced); Apouviepseakoda v. Gonzales, 475 F.3d 881, 885 (7th Cir. 2007) (same).

Accordingly, we DENY the petition for review.

[1] Although Zyapkov was not charged in the Notice to Appear with fraud under § 1182(a)(6)(C)(i), the IJ could rely on fraud as a ground of inadmissibility, and thus ineligibility to adjust status, because the question of

Posted in 7th Circuit, 7th Circuit Cases- Aliens, I-130 petition, Immigration Marriage Fraud Amendments Act of 1986, Marriage Fraud | Leave a comment

CA7 grants withholding of removal for citizen of Botswana and female genital mutilation (FGM) claim

Musa, a citizen of Botswana, entered the U.S. in 2008 on a visitor’s visa. She met a U.S. citizen and they married. Musa’s husband filed an I‐130 “alien relative” petition on her behalf, and Musa applied at the same time to adjust her status to permanent resident, 8 U.S.C. 1151(b)(2)(A)(i), 1255(a); The Department of Homeland Security denied both: Musa’s husband was discovered not to have ended a previous marriage. In 2009 Musa was placed in removal proceedings because her visa had expired. In 2010, Musa divorced and applied for asylum, withholding of removal, and protection under the Convention Against Torture because she feared that if she returned to Botswana her family would force her to undergo female genital mutilation. The agency denied relief. The Seventh Circuit granted the petition requesting withholding of removal. Substantial evidence did not support the agency’s conclusion that Musa likely will not be subjected to FGM. The court held that it lacked jurisdiction to review the agency’s determination that Musa’s asylum application was untimely and denied the petition with respect to the Convention Against Torture because the agency did not err by finding that the government in Botswana would not acquiesce to forced FGM. Musa v. Lynch, No. 15-2046 (7th Cir. 2016)

___________________________
BATHUSI MUSA, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 15-2046.

United States Court of Appeals, Seventh Circuit.
Argued December 15, 2015.
Decided February 19, 2016.

Before BAUER, POSNER, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Bathusi Musa, a citizen of Botswana, petitions for review of the denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture, all based on her fear that her family will force her to undergo female genital mutilation (FGM) if she returns. We grant the portion of the petition requesting withholding of removal. Substantial evidence does not support the agency’s conclusion that Musa likely will not be subjected to FGM. On the asylum application, however, we lack jurisdiction to review the agency’s determination that Musa’s asylum application was untimely. We must dismiss that portion. We also deny the portion of her petition seeking relief under the Convention Against Torture because the agency did not err by finding that the government in Botswana would not acquiesce to forced FGM.

Musa entered the United States in April 2008 on a visitor’s visa. She met a United States citizen and they married. Musa’s husband filed an I-130 “alien relative” petition on her behalf, and Musa applied at the same time to adjust her status to permanent resident. See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1255(a); 8 C.F.R. § 245.2; In re Hashmi, 24 I. & N. Dec. 785, 789-90 (BIA 2009). In June 2009, however, the Department of Homeland Security denied the I-130 petition and Musa’s application to adjust status. The problem was that Musa’s husband was discovered not to have ended a previous marriage. In November 2009 Musa was placed in removal proceedings because her visa had expired while those applications were pending. In April 2010, Musa and her husband divorced.

In October 2010, Musa applied for asylum, withholding of removal, and protection under the Convention Against Torture because she feared that if she returned to Botswana her family would force her to undergo FGM.[1] Musa, who belongs to the Kalanga tribe, said that her mother and grandmother hold strict traditional beliefs and think that if a woman does not undergo FGM her entire family will be cursed. Musa’s grandmother is, in Musa’s words, a “medicine woman” and has performed FGM on other women in the past.

When she lived in Botswana, Musa said, her family on two occasions tried unsuccessfully to force her to undergo the mutilation. On the first attempt, when she was 16, Musa was kidnapped by a group of women and brought to a place where other girls were undergoing FGM. She managed to escape through a bathroom window before the procedure could be carried out, and then—suspecting that her family had instigated the events—hid at a friend’s house. Musa’s mother eventually acknowledged the family’s involvement and promised not to force her to undergo the procedure, at which point Musa returned home.

The second attempt came a year later. Musa said she was attacked by several men who dragged her into some bushes and attempted to “circumcise” her. They told Musa that her mother had sent them. Musa was able to break away, but she sustained bruises all over her body. Musa did not report the incident to the police, she said, because everyone accepted that FGM was practiced and she believed the police would not take her accusation seriously. She also testified that she had two friends who had died from undergoing FGM in Botswana in 2004. Musa continued to live with her parents until later in 2004 or 2005 and then moved to another city in Botswana. Her parents were able to contact her over the phone, but Musa did not disclose her address.

More recently, since leaving Botswana, Musa said that her parents had found her a significantly older marriage partner (he is 75, Musa is now 30), who could help the family financially. To marry the older man, Musa says, she would have to undergo FGM. Her father, who used to resist having the procedure performed on her, wants her to go through with the marriage because he needs money from the suitor to help his struggling business. Musa is afraid to return to Botswana because she does not want to undergo FGM or marry this man.

Further testimony about FGM in Botswana was presented by one of Musa’s friends from Botswana, Gaomongwe Selawe said that FGM was practiced in Botswana as an initiation ritual for girls. She said that she had heard that FGM was practiced by some members of the Kalanga tribe. And she had friends who had undergone the procedure in Botswana. Selawe said that many women do not talk about being forced to undergo FGM because it is a private ritual.

The record before the immigration judge contained documentary evidence showing that FGM is not prevalent in Botswana. The 2011 State Department Country Report in Human Rights Practices for Botswana stated: “There were no known cases of physically harmful traditional practices, such as female genital mutilation.” According to UNICEF, FGM is “not widely practiced” in Botswana, though its report in 2005 nevertheless counted 3 million girls in Africa at risk of FGM each year. Finally, Musa attached a letter written by her mother imploring her to return to Botswana to marry the older man the family had found for her.

The immigration judge denied Musa’s application for asylum, withholding of removal, and Convention Against Torture relief. Musa was not eligible for asylum, the judge found, because she had not filed a timely application within one year of her arrival in the United States. The judge also found that neither her marriage to nor divorce from her husband was a changed circumstance justifying her delay. And even if the denial of her application for adjustment of status in June 2009 was a changed circumstance, the judge found, Musa waited an unreasonably long time from that date— more than a year—to file for asylum.

The judge denied Musa’s request for withholding of removal because he determined there was not a clear probability that if she returned to Botswana she would be subjected to FGM. The judge believed Musa’s testimony that her family practices FGM and on two occasions had attempted to subject her to it forcibly. The judge concluded, however, that those incidents did not amount to past persecution because Musa had not actually undergone the procedure. The judge also believed Musa’s testimony that she feared returning to Botswana, but he did not regard her fear as reasonable because there was no evidence in the record showing that FGM was practiced at all, let alone practiced widely in Botswana. The judge noted Musa’s admission that her desire to avoid a marriage to a much older man was the principal reason she did not want to return to Botswana, not her fear of FGM.

Finally, the immigration judge denied Musa’s request for protection under the Convention Against Torture because she had not presented any evidence showing that the government in Botswana would torture her or acquiesce to torture by anyone else.

The Board of Immigration Appeals affirmed the immigration judge’s decision. The Board agreed with the judge’s conclusion that Musa’s asylum application was untimely because her marriage and divorce were neither changed nor extraordinary circumstances and she did not file the application in a reasonable amount of time after the denial of her petition for adjustment of status. The Board then explained that it agreed with the judge’s denial of Musa’s withholding and Convention Against Torture claims because she “has not been able to provide objective evidence of country conditions in Botswana that corroborates her stated fear of FGM.” The Board agreed with the judge that Musa’s testimony was credible, but it supplemented the judge’s reasoning by proposing that Musa could relocate to a different part of the country: “in view of the paucity of FGM occurring in Botswana, and especially in view of the fact that the respondent need not return specifically to her hometown, we cannot conclude that the Immigration Judge clearly erred in concluding that the respondent did not show that . . . persecution or torture—such as FGM—is likely to occur.”

Musa leads off her petition for judicial review with a weak challenge to the agency’s determination that she did not show changed circumstances materially affecting her eligibility for asylum. See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(4), (5). She recognizes that we lack jurisdiction to review such a determination absent a related legal or constitutional argument, see 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D); Almutairi v. Holder, 722 F.3d 996, 1002 (7th Cir. 2013); Restrepo v. Holder, 610 F.3d 962, 964-65 (7th Cir. 2010), so she tries to frame her disagreement with the agency as a legal issue. She disagrees with the Board’s conclusions that her marriage and divorce did not constitute changed or extraordinary circumstances, and that it was unreasonable for her to have waited more than a year to apply for asylum after the denial of her application for adjustment of status.

Those disagreements do not raise a justiciable legal question challenging the basis of the agency’s determination. She disputes only the application of the law to her circumstance, not the governing legal rules. We thus lack jurisdiction to review the denial of her asylum application. See Restrepo, 610 F.3d at 964-65; Viracacha v. Mukasey, 518 F.3d 511, 515-16 (7th Cir. 2008).

Musa next argues that substantial evidence does not support the denial of her application for withholding of removal because the judge wrongly disregarded her testimony about her family’s FGM practice—testimony that he explicitly credited. We agree. The fact that FGM is not widespread in Botswana as a whole does not contradict her statements about her family’s practice.

We have held consistently that FGM is a form of persecution. See Balogun v. Ashcroft, 374 F.3d 492, 499 (7th Cir. 2004); Olowo v. Ashcroft, 368 F.3d 692, 702-03 (7th Cir. 2004); see also In re Kasinga, 21 I. & N. Dec. 357, 358 (BIA 1996). Still, Musa bears a high burden to establish eligibility for withholding of removal: she must show a clear probability of persecution if removed to Botswana. See Borovsky v. Holder, 612 F.3d 917, 921 (7th Cir. 2010); Guardia v. Mukasey, 526 F.3d 968, 971 (7th Cir. 2008); 8 C.F.R. § 1208.16(b)(2). A clear probability means it appears more likely than not that she will suffer persecution if removed. Bitsin v. Holder, 719 F.3d 619, 628 (7th Cir. 2013); see Zheng v. Gonzales, 409 F.3d 804, 809 (7th Cir. 2005); 8 C.F.R. § 1208.16(b)(2).

The immigration judge here erred by placing too much weight on the absence of background evidence confirming prior cases of FGM in Botswana at large. The absence of documented cases of FGM in that country does not contradict Musa’s testimony—testimony that the judge explicitly credited—that her family practiced FGM. The judge found that Musa testified credibly that her family practiced FGM, that they had twice attempted to force her to undergo it, and that her family—including her father, who once opposed subjecting her to the practice—now wants her to enter into a marriage conditioned upon her undergoing it.

Whether FGM is widely practiced in Botswana or not has no bearing on whether Musa’s own family is likely to subject her to it. The judge credited Musa’s testimony about her family’s FGM practice. He erred by failing to acknowledge the likelihood that she will be subjected to FGM upon returning to Botswana and acceding to the marriage. Musa’s credible testimony is sufficient to sustain her burden of proof. Neither the judge nor the Board denied Musa’s claim based on a lack of corroboration under the Real ID Act, 8 U.S.C. § 1158(b)(1)(B)(ii). (Under that act, an immigration judge may require an applicant who testifies credibly to provide reliable corroborating evidence as well. See Tian v. Holder, 745 F.3d 822, 828 (7th Cir. 2014).)

The judge also erred by characterizing Musa’s principal motivation for seeking withholding of removal as her fear of marrying a much older man rather than fear of FGM. Once the judge accepts an applicant’s testimony about fear of persecution as genuine, the existence of other fears does not undermine her claim. See Mohideen v. Gonzales, 416 F.3d 567, 570 (7th Cir. 2005) (“an individual may qualify for asylum if his or her persecutors have more than one motive as long as one of the motives is specified in the Immigration and Nationality Act”).

The Board’s conclusion that Musa could safely relocate to another part of the country is also problematic. The immigration judge did not address whether Musa could relocate to a different part of Botswana to avoid her family’s pressure to undergo FGM, or whether she could reasonably be expected to do so. See 8 C.F.R. § 1208.16(b)(2). The possibility of relocation, for that matter, was not even argued by the government before the Board.

As an initial matter, it is not clear that the Board has the authority to make a finding in the first instance that Musa could relocate. See 8 C.F.R. § 1003.1(d)(3)(i) (“The Board will not engage in de novo review of findings of fact determined by an immigration judge. Facts determined by the immigration judge . . . shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous.”). Even if the Board were permitted to determine the relocation issue in the first instance, its cursory declaration about the feasibility of relocation gave no rationale. The Board did not address whether Musa’s ability to relocate safely might be compromised in light of her testimony that she now faces greater danger because of her family’s marital arrangements and her father’s apparent change of heart regarding his prior opposition to her undergoing FGM. “`[I]t seems possible . . . that the agency might be compelled to reach the opposite conclusion depending how it evaluates the record after remand.'” Kone v. Holder, 620 F.3d 760, 764 (7th Cir. 2010), quoting Gomes v. Gonzalez, 473 F.3d 746, 752 (7th Cir. 2007).

We add that the agency has waived any argument about denying withholding based on Musa’s failure to provide evidence of government involvement or acquiescence in the practice of FGM in Botswana. Neither the immigration judge nor the Board relied on that ground as a basis to deny withholding. See SEC v. Chenery, 318 U.S. 80, 87-88 (1943); Sarhan v. Holder, 658 F.3d 649, 661 (7th Cir. 2011); Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir. 2007).

Although we vacate and remand the decision regarding withholding of removal, we agree with the Board that Musa is not entitled to relief under the Convention Against Torture. The implementing regulations define torture as “severe pain or suffering . . . inflicted by or at the instigation of or with the consent or acquiescence of a public official.” 8 C.F.R. § 208.18. Female genital mutilation is torture, of course. But the judge did not err by finding that Musa failed to show that torture is likely to be carried out by or with the acquiescence of the government in Botswana. See Khan v. Holder, 766 F.3d 689, 698 (7th Cir. 2014); Ishitiaq v. Holder, 578 F.3d 712, 718 n.3 (7th Cir. 2009); 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). The judge justifiably discounted Selawe’s testimony and was unswayed by Musa’s, and Musa has not pointed to evidence in the record to substantiate her testimony that the government would have permitted her family to subject her to FGM even if she had reported their attempts in 2002 and 2003.

Accordingly, the portion of the petition relating to Musa’s request for asylum is DISMISSED, the portion of the petition relating to withholding of removal is GRANTED, and the portion of the petition relating to protection under the Convention Against Torture is DENIED. The case is remanded to the Board of Immigration Appeals.

[1] FGM is defined by the World Health Organization as a collection of “procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons.” See Female Genital Mutilation, World Health Organization, http://www.who.int/mediacentre/factsheets/fs241/en/.

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CA7 dismissed petition for review as it lacks jurisdiction to review agency’s discretionary decisions

Jankovic, a citizen of Bosnia and Herzegovina, was admitted to the U.S. as a refugee in 2003 and received permanent residence status in 2005, but was ordered removed on the ground that he obtained that status by fraud. He concedes committing fraud, which authorized his removal, 8 U.S.C. 1182(a)(6)(C)(i). He sought a waiver on the ground that his removal would cause extreme hardship for his wife Dragana, who was admitted with him in 2003 and became a U.S. citizen in 2009. An Immigration Judge rejected that request on grounds that Dragana would not suffer extreme hardship and that, even if she would suffer hardship, his history of lying to immigration officials justified the exercise of discretion against relief. The IJ also discussed whether Jankovic had committed war crimes during the Bosnian conflict by assisting in the persecution of ethnic minorities, rendering him inadmissible, but stated that he did not need to reach a final conclusion on that subject. The Board of Immigration Appeals affirmed. The Seventh Circuit dismissed his petition for review, noting that it lacks jurisdiction to review the agency’s discretionary decisions and that either ground was sufficient to support removal. Jankovic v. Lynch, No. 15-2144 (7th Cir. 2016)

_________________________________________________
JANKO BRANKO JANKOVIC, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 15-2144.

United States Court of Appeals, Seventh Circuit.
Argued December 9, 2015.
Decided February 3, 2016.

Before EASTERBROOK and HAMILTON, Circuit Judges, and PALLMEYER, District Judge.[*]

EASTERBROOK, Circuit Judge.

Janko Jankovic, a citizen of Bosnia and Herzegovina, was admitted to the United States as a refugee in 2003 but has been ordered removed on the ground that he obtained that status by fraud. He had received permanent-residence status in 2005, but the fraud (which Jankovic concedes committing) authorized his removal. See 8 U.S.C. §1182(a)(6)(C)(i). He sought a waiver on the ground that his removal would cause extreme hardship for his wife Dragana, who was admitted with him in 2003 and became a U.S. citizen in 2009. See 8 U.S.C. §1182(i).

An Immigration Judge rejected that request on two grounds: that Dragana would not suffer extreme hardship; and that, even if his wife would suffer hardship, his history of lying to immigration officials (the fraud used to obtain entry is just part of a pattern) leads to the exercise of discretion against relief. The IJ also discussed a third issue — whether Jankovic had committed war crimes during the Bosnian conflict by assisting in the persecution of ethnic minorities, rendering him inadmissible under a proviso to 8 U.S.C. §1101(a)(42); see also Presidential Proclamation No. 8697 §1(b), 76 Fed. Reg. 49277 (Aug. 4, 2011) — but stated that he did not need to reach a final conclusion on that subject. The Board of Immigration Appeals approved this decision.

Jankovic cannot prevail in this court without upsetting both of the IJ’s grounds, for either of them is adequate to support removal. Yet his brief ignores the second ground, and what’s more we lack jurisdiction to review the agency’s discretionary decisions, which puts both rationales off limits. 8 U.S.C. §§ 1182(i)(2), 1252(a)(2)(B)(i). See, e.g., Jiménez Viracacha v. Mukasey, 518 F.3d 511 (7th Cir. 2008); Leguizamo-Medina v. Gonzales, 493 F.3d 772 (7th Cir. 2007).

Nonetheless, Jankovic maintains that we should review the issue that the IJ did not decide: whether he committed war crimes. Admissibility usually is a legal issue, and §1252(a)(2)(D) permits courts to review the agency’s legal conclusions. For that kind of review to be permissible, however, the legal conclusion must make a difference, as otherwise the court would be rendering an advisory opinion. Legal issues cannot be reviewed when there is only one judgment, and a discretionary decision supports that judgment no matter the answer to the legal contentions. See Powerex Corp. v. Reliant Energy Services, Inc., 551 U.S. 224, 235-36 (2007). Given the IJ’s two rationales, the admissibility question does not matter to the outcome. Jankovic’s contention that something special about immigration law requires a court to review all legal issues, even when a non-reviewable discretionary judgment controls the outcome, is incompatible with INS v. Bagamasbad, 429 U.S. 24 (1976), which held that a court or agency need not resolve a legal contention that does not affect the outcome.

Jankovic presents a second line of argument that he says is within our authority under §1252(a)(2)(D). He contends that the IJ erred by receiving the expert testimony of Michael MacQueen even though the agency had not furnished him, before the hearing, with a written narrative describing MacQueen’s conclusions. Jankovic appears to contend that MacQueen’s testimony affected all of the IJ’s rationales, which if so would avoid any risk of the court’s rendering an advisory opinion, but as far as we can tell MacQueen’s testimony concerned only the agency’s contention that Jankovic committed war crimes. MacQueen testified as an expert on the Bosnian War and, in particular, on the activities of the brigade in which Jankovic was a sergeant. MacQueen’s testimony does not concern how Jankovic’s removal would affect his wife or whether his habit of lying affects his suitability for favorable treatment. This means that any error in receiving MacQueen’s testimony did not matter to the outcome.

Let us assume that this is wrong, however. Still Jankovic cannot prevail, because he does not identify any statute, rule, or decision by the BIA that requires a pre-hearing written summary of proposed expert testimony. The Constitution does not compel pretrial discovery even in criminal litigation. Weatherford v. Bursey, 429 U.S. 545 (1977). Federal rules do require summaries of expert testimony in both civil and criminal litigation, see Fed. R. Civ. P. 26(a)(2); Fed. R. Crim. P. 16(a)(1)(G), but those rules do not apply to administrative hearings.

Although no rule with legal effect requires pre-hearing disclosures, the Immigration Court Practice Manual §3.3(g) urges litigants to include written summaries with witness lists, in order to reduce risk that the IJ will need to grant a continuance to allow additional preparation. The agency’s counsel listed MacQueen as a potential witness, with this description: “Mr. Macqueen is expected to testify regarding the respondent’s service in the Republika Srpska Special Police Brigade.” Jankovic thinks this inadequate. More than a year before the hearing, Jankovic’s lawyer asked the IJ to exclude MacQueen’s proposed testimony and for permission to present a rebuttal expert. The IJ denied the former motion but granted him leave to present a rebuttal expert. Shortly before the hearing, the agency’s lawyer orally described MacQueen’s planned testimony, and Jankovic said on the record that this proffer satisfied his concerns. After MacQueen testified, Jankovic did not put on a rebuttal witness or request a continuance to allow additional time for that purpose. That failure, coupled with his concession that the oral description sufficed, likely waives his current line of argument, see Skorusa v. Gonzales, 482 F.3d 939, 942 (7th Cir. 2007), but even if it doesn’t we’ve explained why the argument does not carry the day.

The petition for review is dismissed for want of jurisdiction.

[*] Of the Northern District of Illinois, sitting by designation.

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