USCIS draft memorandum, “Guidance on Uniform Denial Language Pertaining to Appeals to the Board of Immigration Appeals (BIA).
BIA issues two crime related decisions
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BIA held that an alien released from custody on conditional parole under INA § 236(a)(2)(B) has not been “paroled into the United States” for purposes of establishing eligibility for adjustment of status under §245(a).
Conditional parolee not eligible for adjustment of status
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BIA granted a motion to reopen an in absentia order of deportation based on Matter of Lozada. BIA found Matter of Lozada substantially satisfied where prior attorney is now deceased.
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BIA granted a motion to reopen an in absentia order of deportation based on Matter of Lozada. BIA found Matter of Lozada substantially satisfied where prior attorney is now deceased.
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BIA vacated and remanded, finding that in removal proceedings, the antique firearm exception is an affirmative defense that must be sufficiently raised by an alien charged under INA § 237(a)(2)(C).
Deportation or removal hearings
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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
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(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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New Case on Convention Against Torture: Board of Immigration Appeals did not abuse its discretion in determining that petitioners failed to demonstrate prima facie eligibility for immigration relief because their proposed social group, “returning Mexicans from the United States,” was too broad to qualify as a cognizable social group; generalized evidence of violence and crime in Mexico was not particular to petitioners and was insufficient to establish a likelihood of torture.
Delgado-Ortiz v. Holder – filed April 6, 2010
BIA deference given to particularly serious crime
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A new case. Another aggravated felony. Alien’s conviction for grand theft under California Penal Code Sec. 487(a) qualified as an aggravated felony under the modified categorical approach. By referencing alien’s “conviction record,” Board of Immigration Appeals sufficiently referenced the record as a whole. Abstract of judgment could fairly be read as a summary of alien’s specific offense, not merely a recitation of the title of the statute, and read together with the felony complaint, those documents clearly and specifically demonstrated that alien pleaded guilty to a charge of grand theft of personal property. Alien may not collaterally attack his state court conviction on a petition for review of a BIA decision.
Ramirez-Villalpando v. Holder – filed April 9, 2010
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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
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Immigration Lawyer
Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog 