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Court Holds BIA’s Interpretation of Physical Presence Requirement for NACARA Cancellation to Be Reasonable

The Ninth Circuit held that the BIA’s interpretation of the 10-year physical presence requirement for NACARA cancellation of removal for applicants inadmissible on certain criminal grounds as running from the most recent disqualifying conviction was reasonable.1:39 AM

BIA Finds Wisconsin Prostitution Statute Is Categorically an Aggravated Felony

The BIA sustained DHS’s appeal and reinstated removal proceedings, after finding that INA §101(a)(43)(K)(i) encompassed offenses related to the operation of a business that involves engaging in, or agreeing to engage in, sexual conduct for anything of value.

Court Upholds BIA’s Determination That Petitioner Entered into Fraudulent Marriage to Procure Adjustment of Status

The Eighth Circuit denied the petition for review, holding that the BIA’s determination that the petitioner attempted to procure an adjustment of status by willfully misrepresenting that his marriage to a U.S. citizen was bona fide was supported by substantial evidence that the marriage was a sham. The court found that the unrefuted testimony and documentary evidence submitted by DHS was sufficient to prove that the marriage was fraudulent under INA §212(a)(6)(C)(i), and therefore that the petitioner was removable pursuant to INA §237(a)(1)(A).

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.

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.

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.

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