USCIS draft memorandum, “Guidance on Uniform Denial Language Pertaining to Appeals to the Board of Immigration Appeals (BIA).
BIA issues two crime related decisions
Filed under: BIA | Tagged: #bia, ;bia, Appeal, appeal to bia, BIA, bia board of immigration appeals, BIA Pro Bono Project, Immigration Attorney, Immigration Lawyer, Motion to Reopen with the BIA, USCIS | Leave a comment »
Good news from the BIA: Aliens who are otherwise eligible to adjust status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), are not subject to the unauthorized employment restrictions of sections 245(c) and the exception for such employment in section
245(k) that apply to applications for adjustment of status under section 245(a).
New BIA case hits people in deportation hard
Filed under: BIA | Tagged: BIA, bia board of immigration appeals, Immigration, Immigration Attorney, Immigration Lawyer | Leave a comment »
(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.
Filed under: BIA | Tagged: BIA, bia board of immigration appeals, Immigration, Immigration Attorney, Immigration Lawyer | Leave a comment »
New Case on BIA being overruled: Because deferral of removal is available under the Convention Against Torture regardless of whether petitioner has been convicted of a crime, a denial of deferral of removal under CAT is always a decision on the merits. Where alien testified credibly that Nigerian citizens deported for crimes committed in foreign lands were immediately imprisoned upon returning to Nigeria and nothing in the record contradicted this testimony, Board of Immigration Appeals’ conclusion that alien was not likely to be detained upon return to Nigeria was not supported by substantial evidence. Both BIA and immigration judge erred in failing to consider potentially dispositive testimony and evidence that alien would be intentionally tortured in Nigerian prisons because he has AIDS and subject to having his medications withheld as a form of punishment, and such evidence was required to be given reasoned consideration on remand.
Eneh v. Holder – filed April 15, 2010
BIA deference given to particularly serious crime
Filed under: BIA | Tagged: #bia, ;bia, appeal to bia, BIA, bia board of immigration appeals, BIA Pro Bono Project, Immigration, Immigration Attorney, Immigration Lawyer | Leave a comment »
New case where Appellate Court ruled the BIA and IJ were wrong in ruling that there was an adverse credibility finding: Alien’s submission of two news articles describing a rally in India where he said he was arrested did not support an adverse credibility finding based on fact that one article did not mention any violence or arrests at rally and alien did not provide a contemporaneous clarification this article was not entirely accurate. Alien’s failure to explain why a newspaper article stated Delhi police exempted Sikh women from the helmet law before date of rally did not support an adverse credibility finding since only the government could grant such an exemption and later events contradicted this report. Speculation as to what “grave and serious” offenses termination order from alien’s employer was referring to could not be used to support an adverse credibility finding. Where requested documentation was not easily available to alien because it was in India and under the control of a third party, alien’s failure to provide corroborating evidence did not support an adverse credibility finding. Alien’s claim that he had not been formally terminated at his first merits hearing was consistent with employer’s termination order where alien claimed he was unaware of the termination order at the first hearing and had arrived in the United States nearly 10 months before that order was issued. Even if termination order were “poorly drafted and formatted” as Board of Immigration Appeals held, such a conclusion does not bear a substantial and legitimate nexus to the adverse credibility finding. BIA’s disbelief of alien’s decision not to challenge his suspension from work based on speculation and conjecture about what someone in alien’s position would or would not do did not support the adverse credibility finding. Neighbor’s testimony that alien “quit” because he would have had to compromise his religion by cutting his hair and beard in order to keep his job was consistent with alien’s claim that he could have had his job back if he cut his hair and trimmed his beard, but that he was not willing to do so. Where alien repeatedly testified that no media or police reports of a bus explosion exist, or if they did, he was unable to locate them, alien’s failure to provide such reports did not support an adverse credibility finding. Alien was not required to provide “strong” or “conclusive” evidence of bus explosion and his subsequent arrest and mistreatment. Where immigration judge’s skepticism as to the plausibility of alien’s testimony was based on a mischaracterization of that testimony, such skepticism did not provide a proper basis for upholding an adverse credibility finding. IJ and BIA erred to the extent they based an adverse credibility finding on statistics contained in a 2003 Country Conditions Report because those statistics reveal nothing about the circumstances or persecution of Sikhs living in New Delhi in 1998, the year in which alien claimed he was persecuted.
Filed under: BIA | Tagged: BIA, bia board of immigration appeals, BIA Pro Bono Project, Immigration, Immigration Attorney, Immigration Lawyer | Leave a comment »
The BIA found that a stepchild who meets the definition of a “child” under INA § 101(b)(1)(B), 8 U.S.C. § 1101(b)(1)(B) (2006), is a qualifying relative for purposes of establishing exceptional and extremely unusual hardship for cancellation of removal under the Act. Matter of Portillo-Gutierrez, 25 I&N Dec. 148 (BIA 2009).
https://cbocalbos.wordpress.com/tag/appeal-to-bia/
https://cbocalbos.wordpress.com/tag/bia-board-of-immigration-appeals/
https://cbocalbos.wordpress.com/tag/appeal-to-bia/
https://californiaimmigration.us/bia-remands-case-back-to-the-judge/
Filed under: BIA | Tagged: BIA, bia board of immigration appeals, Immigration, Immigration Attorney, Immigration Lawyer, Stepchild | Leave a comment »
Question: I lost my case at the Immigration Court. I understand that I have many issues that I can appeal and that there is a very reasonable chance that I could win. Can you let me know where my appeal goes and what might happen?
Answer: There are many Immigration Courts in the U.S. All together there are about 55 Immigration Courts through all 50 States as well as in Puerto Rico. Whenever you lose at the Immigration Court level, you appeal to the Board of Immigration Appeals or the BIA. There is only one BIA in the entire United States. The BIA is located in Virginia and handles all of the appeals of every Immigration Court throughout the entire United States.
The Notice of Appeal must be in the hands of the BIA no later than 30 days after issuance of the decision from the Immigration Judge. Afterwards, it goes to a panel of three of the members of the Board of Immigration Appeals and in about one year the decision is issued.
Question: I have heard that there will be some changes at the BIA. Is that true and what are they?
Answer: Yes it is true. The changes are not for the better. In fact, the changes will make the appeal process to the BIA an exercise in futility and will deny numerous rights to immigrants and their rights to appeal. Attorney General Ashcroft has just issued regulations to go into effect later this month that will change some of the basic ways that the BIA decides cases. First, they will no longer make a three member panel to decide cases, but only one member will decide. Only on cases of novel importance or ones that are unusually complicated will it be referred to a three member panel. Who decides if a case is novel or unusual is unclear. In all other real appeals (other than the new BIA regulations) it goes to a three member panel. This gives the person appealing the knowledge and satisfaction that the appeal will be decided among three qualified persons who must come to a consensus. Now, the appeal at the BIA, for the most part, is in the hands of one person. This item by itself takes away much of the due process and fairness to the immigrant.
Next, there is now a timetable that is set for deciding the case. Thus, rather than taking the necessary time to properly decide the case, the Attorney General has mandated that the cases take around 6 months. Thus, again there is a violation of the Due Process rights of immigrants. An appeal should not have as its primary importance the number of days or months it must be decided. What this will do is make a single member rush through cases to make sure that the timetable is met, rather than the case being decided on its merits.
Question: What will happen if the BIA denies the case?
Answer: In reality, that is what will happen in most cases. Because of these new regulations, and because of the violation of Constitutional Due Process rights, people will simply use the BIA as a stepping stone to get to the real appeal. Once the BIA denies the case, it can be appealed directly to a Circuit Appellate Court of the United States. These courts are right below the U.S. Supreme Court. In these appeals, there will be a three judge panel and they will give a real chance to have the case heard on the merits. Do not give up with these new regulations. Just keep fighting until you get to the Circuit Courts, and hopefully, we can restore the immigrant rights that have been lost.
https://cbocalbos.wordpress.com/tag/bia/
https://cbocalbos.wordpress.com/tag/appeal-to-bia/
https://cbocalbos.wordpress.com/tag/bia-board-of-immigration-appeals/
https://californiaimmigration.us/bia-rules-on-withholding-of-removal/
Filed under: BIA | Tagged: #bia, Appeal, BIA, bia board of immigration appeals, BIA Pro Bono Project, Immigration, Immigration Attorney, Immigration Lawyer, Motion to Reopen with the BIA | 1 Comment »
Immigration Lawyer
Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog 