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AG Garland Gives Immigration Judges Back Authority to Administratively Close Cases

Posted on July 28, 2021 by sethlerner1964

Attorney General (AG) Garland ruled that, while rulemaking proceeds and except when a court of appeals has held otherwise, immigration judges and the BIA should apply the standard for administrative closure set out in Avetisyan and W—Y—U—. AILA Executive Director Ben Johnson welcomed “this return to a more effective and efficient immigration court system,” but also noted that “the necessity of this decision only underscores the need for a truly independent immigration court system.”

https://www.uscis.gov/

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9th Circ. says judges can reopen deported immigrant cases.

Posted on July 1, 2021 by sethlerner1964

The Ninth Circuit held that immigration judges can reopen the cases of immigrants who have been removed from the U.S. or who voluntarily left. In its decision, the panel sided with a Mexican native who was removed in 1995 and asked an immigration judge to reopen his case sua sponte after he returned to the U.S. so he could apply for adjustment of status. The judge refused – and the BIA agreed – finding that a judge is blocked from taking sua sponte action because the migrant had left the country. However, the panel said that the departure bar does not apply to a sua sponte reopening of a case, but only limits motions to reopen. The panel has now joined a Circuit split on the issue, siding with the Tenth Circuit, and differing from the Second, Third, and Fifth Circuits.

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https://www.uscis.gov/citizenship

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Burden of Proof as to competency

Posted on February 9, 2021 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

A competent testator or settlor may dispose of his or her property as he or she wishes, without regard to the desires of prospective beneficiaries or the views of anyone else, as long as the document’s terms are not prohibited by law or contrary to public policy.

The testator is presumed sane and competent and the contestant has the burden of proving by a preponderance of the evidence that the testator lacked testamentary capacity at the time the will was signed.

The same general presumption of competence exists with respect to the execution of trusts.If a testator had a mental disorder but had lucid periods, there is a presumption that the will was executed during a period of lucidity.

Once it is shown that testamentary incompetency exists and that it is caused by a mental disorder of a general and continuous nature, the inference is reasonable (and might even be a presumption) that the incompetency continued to exist at the time the instrument was signed.

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https://californiaimmigration.us/government-requires-burden-of-proof-and-proper-evidence-in-controlled-substance-abuse-for-petitioner/

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USCIS Designates Matter of L-S-M- as an Adopted Decision

Posted on December 2, 2016 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

USCIS issued a policy memorandum designating Matter of L-S-M- as an AAO adopted decision, which establishes this decision as policy guidance that applies to and binds all USCIS employees. Matter of L-S-M- clarifies that INA §240B(d)(2), which provides an exception for certain victims of domestic violence or related abuse to the civil penalties in INA §240B(d)(1) for failure to comply with an order of voluntary departure, does not extend to U-1 nonimmigrant victims of qualifying criminal activity.

Voluntary departure

Grant stay of voluntary departure

Post conclusion voluntary departure

Find a good Immigration Lawyer to help you

https://californiaimmigration.us/removal/judicial-review/

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Theft offense

Posted on November 21, 2016 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Matter of DIAZ-LIZARRAGA, 26 I&N Dec. 847 (BIA 2016)

(1) A theft offense is a crime involving moral turpitude if it involves a taking or exercise of control over another’s property without consent and with an intent to deprive the owner of his property either permanently or under circumstances where the owner’s property rights are substantially eroded.

(2) Shoplifting in violation of section 13-1805(A) of the Arizona Revised Statutes is categorically a crime involving moral turpitude.

Theft offense

Theft meaning

Grand theft

Theft in immigration

https://californiaimmigration.us/petty-theft-exception-for-illegal-immigrant/

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Court Finds Petitioner’s Maine Assault Conviction Was Not a “Crime of Violence”

Posted on October 17, 2016 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

On rehearing, the First Circuit vacated the BIA’s decision and remanded, holding that under Moncrieffe v. Holder the petitioner’s 2006 Maine conviction for assault was not a “crime of violence,” and thus, the petitioner was eligible to seek cancellation of removal.

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https://californiaimmigration.us/waivers/criminal-waiver-of-inadmissibility-prepared-by-immigration-lawyer/

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AAO Sustains Appeal of TSC “Extraordinary Ability” Denial for Judo Coach

Posted on October 17, 2016 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

In a non precedent decision, the AAO held that the petitioner, a judo athlete transitioning his career from competing to coaching, met the burden of proof necessary to establish his eligibility as an individual “of extraordinary ability” in athletics pursuant to INA §203(b)(1)(A).

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https://californiaimmigration.us/aao-finds-profession-of-%e2%80%9ccomputer-software-engineer%e2%80%9d-does-not-require-specified-field-of-study-for-bachelor%e2%80%99s-degree/

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Court Says No Rational Basis Between Chronic Alcoholism and a Lack of Good Moral Character

Posted on October 17, 2016 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

The Ninth Circuit granted the petition for review of the BIA decision, finding the petitioner ineligible for cancellation of removal or voluntary departure because he lacked good moral character as a “habitual drunkard.” The court remanded, holding that the petitioner could bring an equal protection challenge because there is no rational basis to classify persons afflicted by chronic alcoholism as innately lacking good moral character.

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https://californiaimmigration.us/9th-circuit-case-gran/

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Court Upholds Asylum Denial Where Chinese Petitioner Claimed to Fear Persecution Based on Religion

Posted on October 14, 2016 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

The Sixth Circuit found that the IJ’s adverse credibility determination was supported by substantial evidence, and that the petitioner, who claimed that her Christian beliefs would subject her to persecution if she was removed to China, had not presented evidence or any argument that would compel a reasonable adjudicator to disagree with the IJ’s finding. The court also rejected her due process claims, noting that because none of the alleged violations affected the outcome of her asylum claim, she did not suffer any prejudice.

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https://californiaimmigration.us/circuit-court-of-appeal-reverses-bia-denial-of-asylum/

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Court Says Car Failure Does Not Constitute Exceptional Circumstances Justifying a Motion to Reopen

Posted on October 14, 2016 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

As a matter of first impression, the Ninth Circuit held that a car’s mechanical failure does not alone compel granting a motion to reopen based on exceptional circumstances. Accordingly, the court upheld the BIA’s denial of the motion to reopen to rescind the in absentia removal order entered against the petitioner, whose car had broken down on the way to her removal hearing.

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https://californiaimmigration.us/motion-to-reopen-granted-2/

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