The Second Circuit held that the BIA’s decision declining to certify the petitioner’s untimely appeal of his removal order was a discretionary determination and, accordingly, was not subject to judicial review.
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Filed under: bia decisions | Tagged: #bia, Appeal, appeal to bia, BIA, bia board of immigration appeals, BIA Pro Bono Project, board of immigration appeal, Motion to Reopen with the BIA, order of removal | Leave a comment »
The Fifth Circuit granted the petition for review of the denial of the Ethiopian petitioner’s application for asylum and withholding of removal, finding that the BIA failed to consider several factors essential to determining whether one central reason for the Ethiopian government’s detention and maltreatment of the petitioner was persecution on account of a protected ground.
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The BIA ruled that as a crime of violence under 18 USC §16(a), the state statute must require as an element the use, attempted use, or threatened use of violent physical force. The BIA further held that the crime of aggravated battery under the Puerto Rico Penal Code, which may be committed by means that do not require the use of violent physical force, is not categorically a crime of violence under 18 USC §16(a).
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Filed under: Immigration Attorney | Tagged: aggravated felony, BIA, crime of violence | Leave a comment »
The Eighth Circuit held that the non-LPR petitioner’s claim that the IJ and BIA failed to consider all the evidence of exceptional and extremely unusual hardship to his children, and that this failure constituted a denial of due process and an incorrect application of the hardship standard, was a challenge as to how the IJ and BIA weighed the evidence in support of his application for cancellation of removal, and was thus outside the court’s jurisdiction to review.
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In a precedent decision issued today, the BIA found that neither the government nor the respondent bears a formal burden of proof in immigration proceedings to establish whether or not the respondent is mentally competent, but where indicia of incompetency are identified, the Immigration Judge (IJ) should determine if a preponderance of the evidence establishes that the respondent is competent. Further, the BIA held that an IJ’s finding of competency is a finding of fact that the BIA can review to determine if it is clearly erroneous.
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Filed under: Immigration Court | Tagged: BIA, board of immigration appeals, IJ, Immigration Court, reversal | Leave a comment »
Today, the BIA issued two precedent decisions addressing the issue of whether evidence that photographs and fingerprints were taken in conjunction with a noncitizen’s voluntary departure or return constitutes a formal, documented process sufficient to break continuous physical presence for purposes of establishing eligibility for cancellation of removal, where the noncitizen had the right to appear before an Immigration Judge but was not informed of that right. In the first decision, the BIA held that such evidence was not sufficient, in the absence of evidence that the noncitizen was informed of and waived the right to a hearing. In the second decision, the BIA found that this rule applies regardless of whether the encounter in which the noncitizen was photographed and fingerprinted occurred at or near the border.
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The Second Circuit reversed the Board of Immigration Appeals (BIA) and remanded, finding that it was unable to meaningfully review the agency’s removability determination, because the BIA had failed to consider material evidence—namely, the petitioner’s 1994 marriage certificate. On remand, the BIA was instructed to evaluate the authenticity of the marriage certificate, and to articulate the standard the agency applies when assessing the credibility of an individual who testifies on matters concerning removability in a contested removal proceeding.
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The Ninth Circuit granted the petition for review of the Board of Immigration Appeals’ decision, which found that the petitioner was inadmissible under INA §212(a)(3)(B) for having engaged in terrorist activity. The court held that the Board erred in failing to apply the clear error standard of review to the Immigration Judge’s finding that the petitioner lacked the “intent to endanger, directly or indirectly, the safety of one or more individuals” when he participated in planning an attempted coup against the Philippine government in 1989.
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Filed under: immigration case | Tagged: BIA, board of immigration appeals, filipino, Immigration, Immigration Attorney, Immigration Lawyer, ninth circuit, Terrorist | Leave a comment »
The First Circuit upheld the Board of Immigration Appeals, holding that the plain language of INA §101(a)(43) compels the conclusion that a predicate conviction under federal or state law can constitute an aggravated felony even if the petitioner served no term of imprisonment for that crime.
Filed under: Immigration Attorney | Tagged: aggravated felony, BIA, board of immigration appeals, first ciruit, ina 101(a)(43), jail, prison term | Leave a comment »
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