Board of Immigration Appeals BIA Precedent Decisions 2015

 

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

 

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)

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)

(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)

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) 

(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)

 

(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) 

 

(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) 

 

(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) 

 

 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) 

 

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) 

 

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)

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

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)

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)

 

(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)

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) 

 

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)

 

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) 

 

(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)

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. 494 (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) 

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), andMatter 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)

 

(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 v. United States, 133 S. Ct. 2276 (2013), 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 inMatter of Chairez, the law of the Tenth Circuit must be followed in that circuit.

 

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

 

(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)

 

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.

 

All of the links to these decisions can be found at  https://www.justice.gov/eoir/precedent-decisions-volume-26