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Viewing entries tagged
Board of Immigration Appeals
The Board of Immigration Appeals has determined that an immigration judge generally should not continue an individual hearing based on a respondent’s speculative assertion that he or she may be eligible for a new form of relief from removal not previously raised. In this case, the request for a continuance was not accompanied by an application or proof of prima facie evidence for the relief sought (VAWA cancellation of removal).
The full text of Matter of J-A-F-S- can be found here:
The Board of Immigration Appeals has determined that “[a] statute’s textual overbreadth does not always unambiguously establish that there is a realistic probability that the State would apply the statute to conduct falling outside the Federal definition of an offense.” “Thus, we conclude that once DHS establishes the existence of a State drug conviction by clear and convincing evidence, a respondent who argues that a State conviction is categorically overbroad based on differing substance or isomer definitions has the burden of demonstrating a realistic probability that the State prosecutes substances falling outside the Federal definition of a controlled substance.”
This decision turns burdens of proof on their head, forcing a lawful permanent to prove he’s not deportable, rather than forcing the Department of Homeland Security to prove he is.
The full text of Matter of Felix-Figueroa can be found here:
The Board of Immigration Appeals has determined that a non-citizen who provides inconsistent address information to immigration officers is a flight risk.
The full text of Matter of Akhmedov can be found here:
The Board of Immigration Appeals has created a presumption that a non-detained individual who has retained private counsel can afford to pay the filing fees for an appeal. In addition, the Board determined that a fee waiver with zeros in the income and expenses columns is presumptively invalid without further evidence or explanation.
The full text of Matter of Garcia Martinez can be found here:
The Board of Immigration Appeals has overturned a bond grant to an individual facing pending drug trafficking charges, finding the person to be a danger to the community.
The full text of Matter of Salas Pena can be found here:
The Board of Immigration Appeals has affirmed that a lack of corroborating evidence is an independent ground for finding an asylum applicant has failed to meet his burden of proof.
The full text of Matter of G-C-I- can be found here:
The Board of Immigration Appeals has overturned an exceptional and extremely unusual hardship finding involving a child with autism and anxiety, two other children with developmental delays, and their mother. “While the respondent’s daughter has been diagnosed with autism and an anxiety disorder and his sons have been diagnosed with developmental delays, the conditions of all three United States citizen children are presently being managed by individualized education programs or early intervention services. As all three children would continue to remain in the United States with the respondent’s United States citizen wife upon the respondent’s removal, they would continue to receive medical care through state Medicaid, as well as specialized educational support in the State of New Jersey.”
This decision is disgraceful, and can only be interpreted as an attempt to interpret the hardship requirement for cancellation in a manner that is impossible to ever meet. Even under deferential standards, I cannot imagine this withstanding federal court review (which thankfully, we can now get on hardship determinations).
The full text of Matter of Buri Mora can be found here:
The Tenth Circuit has determined that the Board of Immigration Appeals improperly rejected a notice of appeal where the attorney did not sign the certificate of service line because the notice of appeal was submitted through ECAS, and thus, automatically served on Homeland Security.
The full text of Cortez v. Bondi can be found here:
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111277109.pdf
The Board of Immigration Appeals has reversed a grant of protection under the Convention Against Torture to a bisexual Salvadoran with a criminal history and gang tattoos.
“The Immigration Judge did not clearly err in finding that the applicant is a bisexual criminal deportee with visible gang tattoos. Further, the Immigration Judge did not clearly err in finding that if the applicant is removed, he will likely be detained upon his arrival in El Salvador pursuant to the state of exception policy because he will be identified as a suspected gang member deported from the United States with numerous gang-related tattoos and a criminal history. The record establishes that the applicant has a serious criminal history in the United States, and the information about his criminal history would likely be shared with the Salvadoran Government through the Criminal History Information Sharing Program between the United States and El Salvador. Further, the evidence establishes a history of widespread detention of prior and suspected gang members in El Salvador.”
“In finding that the applicant would suffer harm satisfying the definition of torture in detention, the Immigration Judge relied heavily on statistical information and country conditions evidence showing that some detainees and suspected gang members have been subjected to mistreatment, torture, or death while in detention. However, the Immigration Judge relied on a relatively small number of anecdotal incidents of mistreatment or death that fall well short of supporting a clear probability of torture. Overall, out of a total prison population of approximately 95,000 detainees as of November 2022, the Salvadoran Government documented 90 deaths in custody, some of which were attributable to lack of access to medication. Even if the actual number of abuses and deaths is higher than that documented by the Salvadoran Government, the evidence still demonstrates that only a small percentage of detainees died out of the tens of thousands detained.”
“Moreover, the Immigration Judge’s finding that numerous detainees have died in detention does not establish that public officials caused those deaths or that the unspecified human rights abuses rise to the level of torture. The substandard prison conditions referenced by the Immigration Judge, which may include severe overcrowding and lack of food, do not amount to torture as a matter of law unless ‘specifically intended to inflict severe physical or mental pain or suffering.’”
The full text of Matter of A-A-F-V- can be found here:
The Board of Immigration Appeals has reversed a grant of protection under the Convention Against Torture to a Russian citizen who was supportive of Ukraine and who had twice been detained by the FSB, finding that the record supported the Immigration Judge’s finding that the applicant might be detained and interrogated upon arrival in Russia, there was insufficient evidence that this treatment would rise to the level of torture.
The full text of Matter of E-Z- can be found here:
The Board of Immigration Appeals has affirmed the discretionary denial of relief to an individual arrested for driving under the influence after consuming 20 beers, when his 10-year-old son was in the car with him, and who has used two social security numbers not validly issued to him for employment and tax purposes. The BIA also noted that the applicant claimed relatives in Mexico as dependents on his tax return without acknowledging that the United States has a tax treaty with Mexico that actually permits this if the applicant is providing at least 50% of those relatives’ support.
The full text of Matter of Gonzalez Jimenez can be found here:
The Board of Immigration Appeals has reversed a grant of protection under the Convention Against Torture to a severely mentally ill Haitian man, deemed incompetent in removal proceedings. The BIA noted that the expert witness “could not estimate how many criminal deportees were incarcerated or killed in 2022 or 2023. Anecdotal reports of some criminal deportees being indefinitely detained in torturous conditions are insufficient to establish that the respondent is more likely than not to have that experience.“ The BIA also noted that the prison officials in Haiti lack an understanding of mental illness. Therefore, “[t]he respondent’s failure to show that Haitian officials are intentionally and deliberately creating and maintaining the harsh detention conditions that he fears for the specific purpose of inflicting severe pain or suffering warrants reversal of the grant of his application for CAT protection.”
The full text of Matter of S-S- can be found here:
The Board of Immigration Appeals has reversed the grant of bond to a non-citizen recently convicted of aggravated assault, noting that the conviction involved “the applicant’s decision to engage in violent behavior against her partner by pouring alcohol on his back and setting him on fire using a cigarette. The victim sustained burns on his head, face, and torso and had to be placed in a medically-induced coma.”
The full text of Matter of C-M-M- can be found here:
The Board of Immigration Appeals has determined that a particular social group defined by the alien’s sex or sex and nationality, standing alone, is overbroad and insufficiently particular to be cognizable. The reasoning provided is pretty hollow. The BIA attempts to distinguish the Ninth Circuit’s decision in Perdomo v. Holder by stating it predates the three part immutability-social distinction-particularity test laid out in Matter of M-E-V-G-, but the BIA established these three criteria in much earlier decisions that pre-date Perdomo. The BIA then fell back on its analysis that women of a particular nationality encompass too broad of a group with differing ages, socioeconomic statuses, etc. to be particularized. The BIA further concluded that recognizing a sex-based particular social group would impermissibly create a sixth protected group for asylum.
In a post-Chevron world, this decision just screams for a circuit court to roundly obliterate the absurdity of the BIA’s particular social group caselaw.
The full text of Matter of M-E-S-G- can be found here:
https://www.justice.gov/eoir/media/1408366/dl?inline
The Third Circuit has found that the Board of Immigration Appeals acted outside its authority when it certified a late appeal of a case granting adjustment of status to a non-citizen. The Court noted that once the 30-day appeal period had run, the applicant’s permanent residency status was final as a matter of law, and the executive branch had to utilize the provisions of the rescission statute if it wished to claw back that status. It was improper for the Board to circumvent the statutory rescission process by certifying an appeal of the immigration judge’s decision more than 30 days after if was issued.
The full text of Qatanani v. Attorney General can be found here:
The Board of Immigration Appeals has reversed a judge’s termination of proceedings, finding that termination is not appropriate for a respondent who was not admitted or paroled to seek humanitarian parole from USCIS, and eventually, apply for status under the Cuban Adjustment Act.
The full text of Matter of Roque-Izada can be found here:
The Board of Immigration Appeals has determined that a Virginia conviction for indecent exposure is a crime involving moral turpitude. “For indecent exposure to constitute a crime involving moral turpitude, the statute prohibiting the conduct must require not only the willful exposure of private parts but also a lewd intent. Although section 18.2-387 of the Virginia Code does not include the word ‘lewd,’ it requires an ‘obscene display or exposure.’” “The Board has previously defined ‘lewd’ in the context of a lewd intent as ‘obscene or indecent.’ Thus, ‘lewd’ and ‘obscene’ have the same meaning.”
The full text of Matter of Mayorga Ipina can be found here:
The Board of Immigration Appeals has stated that while “explicit statements from the persecutors regarding the protected ground are not required, there must be some showing of a connection beyond speculation such that the alleged harm is not solely stemming from statistical likelihoods or unfortunate coincidence.” “Thus, the Immigration Judge erred in concluding that a showing of nexus does not require indicia of persecutory motive.”
The full text of Matter of C-I-R-H- & H-S-V-R can be found here:
The Board of Immigration Appeals has found that a grant of withholding of removal that is pending appellate review by the Board does not justify release on bond when there are significant adverse factors present. In this case, those factors included “the respondent entered the United States unlawfully on September 6, 2023, does not have work history in this country, was arrested for petty theft on October 22, 2023, removed her court ordered GPS ankle monitor, and assisted her son in fleeing from law enforcement after shooting at a police officer.”
The full text of Matter of E-Y-F-G- can be found here:
The Board of Immigration Appeals has determined that the basis for granting administrative closure must be related to achieving some foreseeable resolution to the ongoing proceedings within a reasonably short period of time.
“Considering the totality of the circumstances, including whether there is a persuasive reason for removal proceedings to be resolved on the merits, we conclude that administrative closure is not warranted. The respondent has an application for asylum and related relief ripe for adjudication before the Immigration Judge. The resolution of the respondent’s application for asylum and related relief, and any direct appeal taken thereof, would conclude removal proceedings before us. Moreover, TPS is a collateral benefit that does not impact the outcome of removal proceedings. Although USCIS maintains initial jurisdiction over the respondent’s application for TPS, the respondent would remain eligible for TPS even with a final order of removal.” The Board also took special note that the respondent in this matter was detained.
The full text of Matter of B-N--K- can be found here: https://www.justice.gov/eoir/media/1402756/dl?inline
