Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

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

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

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

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

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

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Another new case re: ‘Son’: An individual whose mother is a U.S. citizen continues to be “the son of a citizen of the United States,” as set forth at 8 U.S.C. Sec. 1227(a)(1)(H)(i), after his mother’s death.
Federiso v. Holder

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Another case in the 9th Circuit:

-Immigration Law-
Arizona law criminalizing sexual conduct with a minor under 18 years of age does not meet the federal generic offense of sexual abuse of a minor and is not an aggravated felony for purposes of immigration law.
Rivera-Cuartas v. Holder – filed May 20, 2010

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

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

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