BIA Vacates CAT Deferral Where Gang and Cartel Harm Was Speculative

The Board of Immigration Appeals has determined that a Mexican respondent did not establish eligibility for deferral of removal under the Convention Against Torture based on feared harm from the Sureños and the CJNG. The respondent claimed that he would be tortured because he had cooperated with U.S. authorities in 2009, but the Board found that the record did not establish a clear probability of torture.

The Board emphasized that the respondent had lived in Mexico for approximately 13 years after his cooperation without physical harm or direct contact from the feared actors, had relocated within Mexico without problems, and had not shown that any later threats or violence were connected to his cooperation beyond speculation. The Board also found that generalized evidence of cartel violence, impunity, and corruption did not establish that Mexican officials would consent to or acquiesce in the respondent's torture.

The full text of Matter of J-E-L- can be found here: https://www.justice.gov/eoir/media/1439331/dl?inline

BIA Finds Serious Nonpolitical Crime Bar Turns on Most Recent Arrival

The Board of Immigration Appeals has determined that the words "arrival" and "arrived" in the serious nonpolitical crime bars refer to a respondent's most recent arrival in the United States. The respondent, a lawful permanent resident, argued that the bar did not apply because the alleged human trafficking offense in Mexico occurred after his original admission as an LPR, even though it occurred before his most recent arrival in the United States.

The Board rejected that argument and concluded that the serious nonpolitical crime bar applied. The Board found serious reasons to believe that the respondent had committed the offense based on the Mexican arrest warrant, Interpol Red Notice, Form I-213, and the respondent's admissions. The Board also affirmed the denial of cancellation of removal as a matter of discretion and upheld the denial of CAT protection.

The full text of Matter of C-P-Y- can be found here: https://www.justice.gov/eoir/media/1439601/dl?inline

BIA Rejects Particular Social Group of Married Mexican Women Unable to Leave Their Relationships

The Board of Immigration Appeals has determined that the proposed particular social group of "married Mexican women who are unable to leave their relationship" is not cognizable because it is circularly defined and lacks particularity. The Board also held that a lawful marriage cannot be presumed merely because two people cohabited or had children together.

The Board vacated the grant of withholding of removal and remanded for further consideration of CAT protection. The Board found that the Immigration Judge had relied on overruled precedent, made insufficient findings regarding whether the respondent was legally married under applicable law, and clearly erred in finding that the Mexican government was unable or unwilling to protect her and that internal relocation was unreasonable.

The full text of Matter of V-A-B- can be found here: https://www.justice.gov/eoir/media/1439986/dl?inline

BIA Defines Political Opinion as Requiring a Connection to a Government or De Facto Government

The Board of Immigration Appeals has determined that disapproval of or opposition to criminal gangs is not sufficient to establish a political opinion under the INA. To establish a political opinion, the applicant must have an actual or imputed belief or conviction regarding a discrete cause that is tied to the government of a country, including a de facto government.

The Board rejected the argument that opposition to the Maras and their activities in El Salvador constituted a political opinion, finding that the record did not establish that gangs in El Salvador exercise actual sovereignty or control such that they constitute a de facto government. The Board also rejected the respondent’s gender- and family-based particular social group arguments under recent Board and Attorney General precedent, and affirmed the denial of CAT protection.

The full text of Matter of D-G-E-A- & N-G-G-E- can be found here: https://www.justice.gov/eoir/media/1436936/dl?inline

BIA Finds DACA Alone Does Not Warrant Termination of Removal Proceedings

The Board of Immigration Appeals has determined that an Immigration Judge erred in terminating removal proceedings based solely on the respondent’s receipt of DACA. Although the regulations permit discretionary termination where a respondent is the beneficiary of deferred action, the Board emphasized that the Immigration Judge must consider the reason termination is sought and the basis for any opposition to termination.

The Board remanded the case to a different Immigration Judge, finding reassignment appropriate to avoid the appearance of partiality or bias where DHS alleged that the Immigration Judge’s spouse, a member of Congress, had publicly advocated for the respondent.

The full text of Matter of Santiago-Santiago can be found here: https://www.justice.gov/eoir/media/1437801/dl?inline

BIA Finds Immigration Judge Must Take Pleadings When Respondents Appear but DHS Does Not

The Board of Immigration Appeals has determined that when respondents appear at an initial master calendar hearing, but DHS does not, the Immigration Judge errs by terminating proceedings without first taking the respondents’ pleadings to the Notices to Appear. The regulations require the Immigration Judge to ask the respondents to admit or deny the factual allegations and charges. If the respondents deny the charges, or if issues of law or fact remain, the Immigration Judge must request the assignment of DHS counsel and receive evidence on the unresolved issues.

The full text of Matter of Arana Castillo can be found here: https://www.justice.gov/eoir/media/1437856/dl?inline

BIA Finds FBI Letterhead Memorandum Warrants Significant Weight in Bond Proceedings

The Board of Immigration Appeals has determined that an FBI Letterhead Memorandum indicating that a respondent is a potential national security risk warrants significant weight in bond proceedings. The Board sustained DHS’s appeal, vacated the Immigration Judge’s bond order, and ordered the respondent detained without bond.

The Board explained that dangerousness determinations in bond proceedings may consider national security concerns and need not be limited to evidence of prior criminal conduct. The Board also rejected the respondent’s argument that the FBI memorandum was inherently unreliable because it was unsigned and unsworn, noting that immigration proceedings are not governed by the Federal Rules of Evidence and that government records prepared in the ordinary course of official duties carry strong indicia of reliability.

The full text of Matter of Shentu can be found here: https://www.justice.gov/eoir/media/1438116/dl?inline

BIA Finds Immigration Judge Must Proceed In Absentia for Minors When Notice and Removability are Established

The Board of Immigration Appeals has determined that when respondents, including minor respondents, fail to appear for a hearing, and DHS has established proper notice and removability, the Immigration Judge lacks authority to administratively close the proceedings and must proceed in absentia. The Board rejected the Immigration Judge’s conclusion that it would violate the minor respondents’ due process rights to order them removed based on their mother’s failure to bring them to court, reaffirming that an adult relative who receives notice on behalf of a minor bears the responsibility to ensure the minor appears.

The Board further noted that the statutory remedy for seeking rescission of an in absentia order remains available to the respondents.

The full text of Matter of Orozco Becerra can be found here: https://www.justice.gov/eoir/media/1438621/dl?inline

BIA Rules that IJ Should Enter In Absentia even when DHS does not Appear

The Board of Immigration Appeals has determined that when a non-citizen fails to appear, and DHS has filed some evidence of alienage (including an I-213), the Immigration Judge should proceed in absentia, even if DHS has not appeared to make the motion.

The full text of Matter of Bolivar-Bolivar can be found here: https://www.justice.gov/eoir/media/1435616/dl?inline

BIA Rules Non-Citizen has no Right to Make Closing Argument

The Board of Immigration Appeals has determined that a non-citizen has no right to make a closing argument unless he can show that the denial of the opportunity to make the argument amounts to a due process violation.

The full text of Matter of A-M-Z-F- can be found here: https://www.justice.gov/eoir/media/1436011/dl?inline

BIA Finds that Secretary of State Letter is Sufficient to Sustain Foreign Policy Deportability Finding

The Board of Immigration Appeals has determined that the Secretary of State’s letter indicating that a non-citizen’s presence in the United States would have potentially serious adverse foreign policy consequences is presumptive and sufficient evidence that he is removable under 8 USC 1227(a)(4)(C)(i). The letter was also a significant negative discretionary factor warranting the denial of a waiver for a lawful permanent resident married to a U.S. citizen, with whom he shared a U.S. citizen child. Finally, the letter established that the non-citizen was a danger to national security, precluding him from receiving asylum.

The full text of Matter of M-K- can be found here: https://www.justice.gov/eoir/media/1436196/dl?inline

BIA Requires Corroboration of Medical and Psychological Hardship for Cancellation of Removal

The Board of Immigration Appeals has determined that “[a] respondent’s or qualifying relative’s testimony about a medical or mental health condition will generally be insufficient to establish exceptional and extremely unusual hardship where expert testimony, reports, or medical evidence exist and could reasonably have been produced.” Thus, the testimony of the applicant’s teenage son about his suicidal ideations was deemed insufficient to demonstrate the required hardship.

The full text of Matter of Pelagio Mendoza can be found here: https://www.justice.gov/eoir/media/1434771/dl?inline

BIA Finds that CA Conviction for Accessory after the Fact is Aggravated Felony

The Board of Immigration Appeals has determined that a California conviction for accessory after the fact to a felony is an obstruction of jsutice-related aggravated felony, when accompanied by a sentence of at least one year.

The full text of Matter of Valenzuela Gallardo can be found here: https://www.justice.gov/eoir/media/1434026/dl?inline

BIA Finds that Objection to Noncompliant NTA must be Raised by Non-Citizen

The Board of Immigration Appeals has determined that only a non-citizen can raise an objection to a non-compliant Notice to Appear; an Immigration Judge may not terminate proceedings absent an objection by the non-citizen. As such, when a non-citizen fails to appear at a hearing, the Immigration Judge may not dismiss the proceedings based on the non-compliant Notice to Appear.

The full text of Matter of Lopez-Orellana an be found here: https://www.justice.gov/eoir/media/1432911/dl?inline

BIA Reaffirms that I-213s are Presumptively Reliable

The Board of Immigration Appeals has reaffirmed that Forms I-213 are presumptively reliable and that Immigration Judges must provide specific reasons for finding them unreliable.

The full text of Matter of Mercado-Martinez can be found here: https://www.justice.gov/eoir/media/1432826/dl?inline

BIA Denies Continuance to SIJS Beneficiary

The Board of Immigration Appeals has determined that it is inappropriate to grant a continuance to a SIJS beneficiary whose priority date is not current.

The full text of Matter of Pinzon Rozo can be found here: https://www.justice.gov/eoir/media/1430766/dl?inline

BIA Finds Detainee to be Flight Risk Due to Address Inconsistencies

The Board of Immigration Appeals has determined that a non-citizen is a flight risk due to inconsistencies about his address.

“The Immigration Judge did not consider the significant discrepancies in the record regarding the respondent’s residence. According to the Form I-213, Record of Deportable/Inadmissible Alien, DHS agents encountered the respondent living and working at a business that was illegally growing marijuana in Oklahoma. The respondent’s bond request worksheet asserts he was detained by immigration officials “at [his] residence.” However, in the asylum application he filed with United States Citizenship and Immigration Services, the respondent indicated that he resides in California. The respondent’s purported sponsor also claims to live at the same address in California. The respondent bears the burden of resolving discrepancies in the record, and he has not done so here.”

The full text of Matter of Z-N-L- can be found here: https://www.justice.gov/eoir/media/1430911/dl?inline

BIA Mandates Recalendaring of Proceedings when USCIS Took 5 Years to Approve I-130

The Board of Immigration Appeals has mandated the recalendaring of a removal proceeding, even though the non-citizen was the beneficiary of an approved I-130 and was preparing to file an I-601A waiver. The Board cited the lengthy period of administrative closure that had already taken place, but failed to note that a significant part in the delay in filing the I-601A was that USCIS took more than 5 years to approve the I-130 petition filed by his spouse.

The full text of Matter of Medina Madrid can be found here: https://www.justice.gov/eoir/media/1431066/dl?inline

BIA Finds that Children are no Longer Qualifying Relatives for Cancellation when they Age Out During DHS Appeal

The Board of Immigration Appeals has determined that children age out as qualifying relatives for cancellation of removal when they turn 21 during an appeal filed by the Department of Homeland Security.

The full text of Matter of Arevalo-Vargas can be found here: https://www.justice.gov/eoir/media/1431246/dl?inline

BIA Says that Approved I-360 does not Demonstrate Prima Facie Eligibility for AOS when PD is not Current

The Board of Immigration Appeals has determined that a minor with an approved special immigrant juvenile petition had not demonstrated prima facie eligibility for relief where there is a 4-year delay in visa availability.

The full text of Matter of Z-R-C-N- can be found here: https://www.justice.gov/eoir/media/1431711/dl?inline