Posted on September 22, 2016 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney
The Ninth Circuit granted the petition for review and remanded to the BIA, holding that the petitioners could establish a legitimate reliance interest on pre-Briones law by showing that they incurred legal expenses pursuing adjustment of status during the 21-month period between Acosta v. Gonzales and Matter of Briones. Because the record did not reflect the amount of the expenses the petitioners incurred during the relevant period, the court remanded to the BIA with instructions to allow the petitioners to supplement the record, and to assess in the first instance under Garfias-Rodriguez v. Holder whether Briones may be applied retroactively in this case.
Filed under: Immigration Attorney | Tagged: acosta, BIA, briones, garfias, retroactive | 2 Comments »
Posted on September 20, 2016 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney
The Ninth Circuit found that 8 CFR §1208.31(e), which prevents a noncitizen who is subject to a reinstated removal order from applying for asylum, is reasonable, and entitled to deference under Chevron. Accordingly, the court affirmed the BIA’s conclusion that it could not consider the petitioner’s application for asylum in light of his reinstated removal order. The court remanded for the BIA to reconsider the petitioner’s applications for withholding of removal and protection under the Convention Against Torture (CAT) in light of intervening circuit precedent inHenriquez-Rivas v. Holder and Madrigal v. Holder.
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Filed under: Immigration Attorney | Tagged: asylum, BIA, CAT, Convention Against Torture, reinstated removal order | Leave a comment »
Posted on August 18, 2016 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney
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.
Filed under: Immigration Attorney | Tagged: Appeal, BIA, board of immigration appeal, order of removal | Leave a comment »
Posted on August 18, 2016 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney
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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Posted on August 16, 2016 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney
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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Filed under: Immigration Attorney | Tagged: asylum, BIA, reversal of decision | Leave a comment »
Posted on August 8, 2016 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney
Posted on November 30, 2015 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney
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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Filed under: Jurisdiction denied | Tagged: BIA, eigth circuit, jurisdiction, jurisdiction of appellate court | Leave a comment »
Posted on November 30, 2015 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney
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 Judge, mentally incompetent, reversal | Leave a comment »
Posted on November 30, 2015 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney
- In a published decision the BIA remanded the record to the immigration court for a new hearing before a different Immigration Judge (IJ), finding that conduct by an IJ that can be perceived as bullying or hostile is never appropriate, particularly in cases involving minor respondents, and may result in remand to a different IJ. The BIA also held that the requirements of the Federal Rules of Evidence with respect to the admission of expert testimony are inapposite to a respondent’s testimony regarding events of which he or she has personal knowledge.
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Posted on November 3, 2015 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney
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.
Filed under: BIA | Tagged: BIA, board of immigration appeals, Cancellation of Removal, Stop-Time Rule | Leave a comment »
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