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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.

Don’t claim to be a USC!

In a precedent decision issued today, the BIA held that a false claim to U.S. citizenship falls within the scope of INA §212(a)(6)(C)(ii)(I) where there is direct or circumstantial evidence that the false claim was made with the subjective intent of obtaining a purpose or benefit under the INA or any other federal or state law, and where U.S. citizenship actually affects or matters to the purpose or benefit sought. The BIA further held that there is a distinction between achieving a “purpose” and obtaining a “benefit” under INA §212(a)(6)(C)(ii)(I), and that avoiding removal proceedings qualifies as a “purpose” within the meaning of that section.

Is a Statute Divisible for inadmissibility purposes?

The Attorney General (AG) referred two decisions of the BIA, Matter of Chairez-Castrejonand Matter of Sama, to herself for review of an issue relating to the application ofDescamps v. United States, ordering that those cases be stayed and not be regarded as precedential or binding as to the issue under review during the pendency of her review. The issue is: What is the proper approach for determining “divisibility” within the meaning ofDescamps? In particular, does Descamps require that a criminal statute be treated as “divisible” for purposes of the modified categorical approach only if, under applicable law, jurors must be unanimous as to the version of the offense committed?

Are you a returning Resident – but have a crime?

  1. BIA Finds Returning LPR Cannot Be Charged with Inadmissibility Under INA §212(a)
    In a precedent decision, the Board of Immigration Appeals (BIA) held that a lawful permanent resident (LPR) returning to the United States cannot be regarded as seeking admission and may not be charged with inadmissibility under INA §212(a) if he does not fall within any of the exceptions in INA §101(a)(13)(C).

§212(h) Aggravated Felony Bar Cases in 1st or 8th Circuits

All but two federal circuit courts have rejected Matter of Koljenovic: The 8th Circuit upheld the BIA, and the 1st Circuit has not ruled.

USCIS Announces Teleconference on Form I-601 Filing Location Changes

USCIS invitation to stakeholders to a 10/4/11 teleconference on changes to the adjudication of Form I-601, Application for Waiver of Grounds of Inadmissibility, filed by applicants residing outside the U.S. Invitation includes call-in information.

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