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BIA Says Asylum Grantee Who Adjusts to LPR Status Under INA §209(b) Terminates His or Her Asylee Status

Clarifying Matter of C-J-H-, the BIA held that a noncitizen who adjusts status under INA §209(b) changes his or her status from that of a noncitizen granted asylum to that of a noncitizen lawfully admitted for permanent residence, thereby terminating his or her asylee status. The BIA further held that the restrictions on removal in INA §208(c)(1)(A) do not apply to a noncitizen granted asylum whose status is adjusted to that of a noncitizen lawfully admitted for permanent residence pursuant to INA §209(b).

BIA Says “Specified Offense Against a Minor” Can Involve Undercover Officer Posing as a Minor

The BIA dismissed the petitioner’s appeal, holding that an offense may be a “specified offense against a minor” within the meaning of section 111(7) of the Adam Walsh Child Protection and Safety Act of 2006, even if it involved an undercover police officer posing as a minor, rather than an actual minor. Thus, the BIA found that the petitioner, who was convicted of computer-aided solicitation of a minor in Louisiana after he communicated via the internet with an individual who he believed was a 14-year-old girl but was actually an undercover police officer, was barred from obtaining an approved visa petition by the provisions of the Adam Walsh Act.

Court Finds Presumption Against Retroactive Legislation Bars Application of IIRAIRA to Petitioner’s Case

Where Congress had passed the Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) after the petitioner had committed a drug offense but before his crime was adjudicated, the Second Circuit granted the petition for review and remanded, holding that because the petitioner had committed his drug offense prior to IIRAIRA’s passage, he should not have been forced to seek admission to the United States after his brief vacation to the Dominican Republic in 2007. The court further held that the BIA should evaluate the petitioner’s motions to reopen his removal proceedings and to stay his removal under the law in effect at the time of the commission of his 1990 drug offense.

What to do if you lose at the Board of Immigration Appeals

 

Question: I am so sad. I lost at the Immigration Court and then I lost at the Board of Immigration Appeals. Is there anywhere else to go and anything else I can do to try to stay here in the U.S.?

 

Answer: Yes. You are eligible to file a Petition for Review to the Circuit Court of Appeals.  Petitions for review must be filed and received by the court no later than 30 days after
the date of the decision of the Board of Immigration Appeals (BIA) or the U.S.
Immigration and Customs Enforcement (ICE). This deadline is jurisdictiona.  The 30-day deadline for filing a petition for review is not extended either by filing a motion to reopen or reconsider or by the grant or extension of voluntary departure. Separate petitions for review must be filed for each BIA decision, including issues arising from the denial of a motion to reopen or reconsider.


ICE can deport an individual before the 30-day deadline to file a petition for review
Filing a petition for review does not stay the individual’s removal from the country; Instead, a separate request for a stay must be filed with the court. Filing a petition for review terminates the voluntary departure order, with one exception.  A petition for review may be litigated even if the individual has been removed. However, you probably want to stay here, so try to get the Motion to Stay promptly filed.

 

Question: That’s good to hear. However, what exactly is a ‘petition for review’?

 

Answer: A petition for review is the document filed by, or on behalf of, an individual seeking review of an agency decision in a circuit court of appeals. In the immigration context, a petition for review is filed to obtain federal court review of a removal, deportation or exclusion decision issued by the BIA. In addition, a petition for review may be filed to obtain review of a removal order issued by ICE under a few very limited specific provisions of the Immigration and Nationality Act (INA).

 

Question: So what can you challenge in the Petition for Review?

 

Answer: A challenge to a BIA or ICE decision may involve legal, constitutional, factual, and/or
discretionary claims. In general, (1) legal claims assert that BIA/ICE erroneously applied or
interpreted the law (e.g., the INA or the regulations); (2) constitutional challenges assert that
BIA/ICE violated a constitutional right (e.g., due process or equal protection); (3) factual claims
assert that certain findings of fact made by BIA/ICE were erroneous; and (4) discretionary claims assert BIA/ICE abused its discretion by the manner in which it reached its conclusion.

 

Keep in mind that the 30-day deadline for filing a petition for review of the underlying decision is not extended by the filing of a motion to reopen or reconsider, nor is it extended by the grant or extension of voluntary departure. To obtain review of issues arising from a BIA decision and issues arising from the denial of a motion to reopen or reconsider, separate petitions for review of each BIA decision must be filed.

 

It is quite complex to properly do a Petition for Review, so be sure that you get a qualified immigration attorney to get it filed for you.

BIA Says Noncitizens Who Assist in Persecution Need Not Have a Persecutory Motive to Be Subject to the Persecutor Bar

In a precedent decision issued today, the BIA held that the persecutor bar in INA §241(b)(3)(B)(i) applies to a noncitizen who assists or otherwise participates in the persecution of an individual because of that person’s race, religion, nationality, membership in a particular social group, or political opinion, without regard to the noncitizen’s personal motivation for assisting or participating in the persecution. The court found that the persecutor bar applied to the Salvadoran respondent because, regardless of his own motives, he assisted in the persecution of an individual because of the individual’s political opinion. Accordingly, the court concluded that the respondent failed to establish that he was eligible for special rule cancellation of removal under NACARA.

BIA Decision regarding the Walsh Waiver

Matter of CALCANO DE MILLAN, 26 I&N Dec. 904 (BIA 2017)
For purposes of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, and section 204(a)(1)(A)(viii)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1154(a)(1)(A)(viii)(I) (2012), a United States citizen or lawful permanent resident petitioner has been “convicted” of an offense where either a formal judgment of guilt has been entered by a court or, if adjudication of guilt has been withheld, where (1) a plea, finding, or admission of facts established the petitioner’s guilt and (2) a judge ordered some form of punishment, penalty, or restraint on his or her liberty.

Court Reverses Denial of Asylum to Homosexual Petitioner from Mexico

The en banc Ninth Circuit reversed the BIA’s denial of asylum to a homosexual citizen of Mexico, finding that the petitioner had shown that Mexican officials were unable or unwilling to protect him from harm by private individuals due to his sexual orientation, and thus that he had established past persecution. The court also concluded that the petitioner was entitled to a presumption of future persecution, and remanded for the BIA to consider whether that presumption was rebutted, and also to consider the petitioner’s claims for withholding of removal and CAT protection, taking into account new evidence of the petitioner’s HIV diagnosis.

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