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BIA Says DHS Is Not Precluded by Res Judicata from Initiating Separate Proceedings

Declining to follow the Ninth Circuit’s ruling in Bravo-Pedroza v. Gonzales, the BIA held that DHS is not precluded by res judicata from initiating a separate proceeding to remove a foreign national as one convicted of an aggravated felony burglary offense under INA §101(a)(43)(G), based on the same conviction that supported a crime of violence aggravated felony charge under §101(a)(43)(F) in the prior proceeding.

Court Finds BIA Abused Its Discretion in Mental Competency Evaluation

In Calderon-Rodriguez v. Sessions, the Ninth Circuit granted the petition for review, finding that the BIA abused its discretion in affirming the immigration judge’s evaluation of the respondent’s mental competency by failing to recognize that the medical record relied upon was nearly a year old and by departing from the standards set out for competency determinations in Matter of M-A-M-.

Court Says Conviction for Evading Arrest in Texas Is Not Categorically a Crime Involving Moral Turpitude

The Fifth Circuit vacated the BIA’s decision and remanded, holding that the petitioner’s conviction for evading arrest under Texas Penal Code §38.04 was not categorically a crime involving moral turpitude rendering him ineligible for cancellation of removal under INA §240A(b)(1).

BIA Remands to Determine If Beneficiary’s Birth Certificate Is Sufficient

In a precedent decision issued on September 20, 2017, the BIA held that where a petitioner seeking to prove a familial relationship submits a birth certificate that was not registered contemporaneously with the birth, an adjudicator must consider the birth certificate, as well as all the other evidence of record and the circumstances of the case, to determine whether the petitioner has submitted sufficient reliable evidence to demonstrate the claimed relationship by a preponderance of the evidence.

Court Finds Petitioner’s Failure to Brief Her Ineffective Assistance of Counsel Claim Constituted Waiver of the Claim

According Chevron deference to the BIA’s decision, the Fifth Circuit held that the BIA did not err in denying the petitioner’s motion to reconsider her motion to reopen and found that the petitioner had waived her ineffective assistance of counsel claim by failing to brief the issue on appeal.

Criminally Negligent Homicide Ruling

BIA just ruled that Criminally negligent homicide in violation of section 125.10 of the New York Penal Law is categorically not a crime involving moral turpitude, because it does not require that a perpetrator have a sufficiently culpable mental state.

BIA Clarifies Standard for Determining When a Misrepresentation Is “Material” Under INA §212(a)(6)(C)(i)

In a case before the BIA on remand from the Ninth Circuit for further clarification of portions of the agency’s April 2011 decision in Matter of D-R-, the BIA held in a precedent decision issued today that a misrepresentation is material under INA §212(a)(6)(C)(i) when it tends to shut off a line of inquiry that is relevant to a non citizen’s admissibility and that would predictably have disclosed other facts relevant to eligibility for a visa, other documentation, or admission to the United States. The BIA further held that in determining whether a noncitizen assisted or otherwise participated in extrajudicial killing, an adjudicator should consider (1) the nexus between the noncitizen’s role, acts, or inaction and the extrajudicial killing and (2) scienter, meaning his or her prior or contemporaneous knowledge of the killing.

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