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

BIA Finds no Duress Exception to Serious Nonpolitical Crime Bar

The Board of Immigration Appeals has determined there is no duress exception tot he serious nonpolitical crime bar to asylum and withholding of removal.

The full text of Matter of D-G-B-L- can be found here: https://www.justice.gov/eoir/media/1423546/dl?inline

BIA Limits Eligibility for 237(a)(1)(H) Waiver to Fraud at Entry, Rather than Fraud at Adjustment

The Board of Immigration Appeals has determined that a 237(a)(1)(H) waiver is available only to applicants who commit fraud at their time of entry, not at the stage of a subsequent adjustment of status.

The full text of Matter of Forjoe can be found here: https://www.justice.gov/eoir/media/1429116/dl?inline

BIA Effectively Eliminates Administrative Closure for U Visa Applicants

The Board of Immigration Appeals has determined that when a “U nonimmigrant visa is not immediately available to a respondent and the record does not establish that one is likely to be available in the reasonably near future, administrative closure over DHS’ objection is inappropriate.” The Board further noted that a six month period of administrative closure is presumptively reasonable.

The full text of Matter of Ibarra Vega can be found here: https://www.justice.gov/eoir/media/1429421/dl?inline

BIA Discredits Expert Witness

The Board of Immigration Appeals has determined that “where an expert witness’ background and testimony reflect a reluctance to consider contrary evidence and an inability to impartially assess matters involving the removal of persons to a given country, an Immigration Judge errs in giving the testimony of that witness significant weight.” In this case, the Board cited an expert witness’s co-authoring of an article that called for the cessation of all deportations of criminal non-citizens to Haiti.

The full text of Matter of D-J-L- can be found here: https://www.justice.gov/eoir/media/1430046/dl?inline

BIA Finds Presumption of Future Harm Rebutted Despite Widespread Violence in Haiti

The Board of Immigration Appeals has determined that “[w]here a presumption of a future threat to life or freedom applies, an Immigration Judge cannot rely on generalized crime and widespread violence unrelated to the original claim to find the presumption has not been rebutted, particularly where other evidence suggests a fundamental change in circumstances such that a respondent will no longer be harmed on account of a protected ground.”

The full text of Matter of R-B-E- can be found here: https://www.justice.gov/eoir/media/1430191/dl?inline

BIA Finds that Written Frivolous Warnings are Sufficient

The Board of Immigration Appeals has determined that the written frivolous warnings on the I-589 application are sufficient to give notice of the consequences of filing a frivolous asylum application. There is no requirement that a judge provide oral warnings and withdrawing the application does not preclude a frivolous finding.

The full text of Matter of S-M-H- can be found here: https://www.justice.gov/eoir/media/1425081/dl?inline

BIA Finds that there is no Presumption that a Misdemeanor is not a Particularly Serious Crime

The Board of Immigration Appeals has determined that there is no presumption that a single misdemeanor does not qualify as a particularly serious crime, but rather, the analysis in Matter of N-A-M- governs the determination.

The full text of Matter of E-A-S-O- can be found here:

https://www.justice.gov/eoir/media/1426071/dl?inline

BIA Undermines Expert Testimony

The Board of Immigration Appeals has again undermined the testimony of an expert witness, finding it insufficiently supported.

“First, the expert did not profess any direct knowledge of the extent to which China tortures those convicted of drug trafficking crimes abroad, nor did he articulate any past professional experience with death penalty cases in China or the way in which China implements the death penalty. Second, the expert noted in his report that ‘there is a paucity of statistics on torture and executions in China’ and ‘little official information on the handling of expatriated drug-traffickers.’ He also did not provide any meaningful estimations on the number of individuals sentenced to death or the percentage of those convicted of crimes who were sentenced to death. Although he cited a law journal article stating that 95 percent of death sentences in China involve drug crimes, intentional homicide, and robbery, this statistic was not broken down further as to how likely a person convicted of drug crimes was to receive the death penalty or the likelihood of that the death penalty would be inflicted on individuals, like the respondent, who were convicted of drug trafficking in another country.”

“The relevance and the reliability of an expert witness’ opinions are significantly undercut when those opinions are informed by anecdotal or inaccurate facts or data. Because the expert relied on two anecdotes that are not analogous to the respondent’s circumstances to support his prediction that the respondent would be detained and tortured due to his drug trafficking conviction in the United States, the Immigration Judge clearly erred in assigning significant weight to the expert’s opinion without reasonably considering the apparent deficient underlying factual basis.”

The BIA concluded that “[t]he general evidence of China’s harsh penalties for individuals convicted of drug trafficking crimes committed in China and the use of torture in Chinese prisons is insufficient to establish that the respondent will more likely than not be detained and tortured, extralegally or otherwise, based on his drug trafficking conviction in the United States.“

The full text of Matter of G-M-I- can be found here:

https://www.justice.gov/eoir/media/1426556/dl?inline

BIA Finds that Marriage to US Citizen is Insufficient for Sua Sponte Reopening

The Board of Immigration Appeals has held that “[a] respondent’s valid marriage to a United States citizen entered into after a removal order does not constitute an exceptional situation warranting sua sponte reopening of removal proceeding.”

The full text of Matter of Yadav can be found here: https://www.justice.gov/eoir/media/1426906/dl?inline

BIA Limits IJ's Authority on Remand for Background Checks

The Board of Immigration appeals has limited an Immigration Judge’s authority to consider new eligibility for relief when the case is remanded for background checks.

“We now modify our decision in Matter of M-D- and clarify that the scope of a background check remand is for the limited and narrow purpose of the Immigration Judge considering the reported results of DHS’ background and security checks and entering a final order regarding the relief or protection that formed the basis for the remand. The regulation at 8 C.F.R. § 1003.47(h) expressly authorizes the Immigration Judge to conduct a hearing, if necessary, to consider any “new information” that could potentially affect a respondent’s eligibility for the relief that formed the basis for the remand and instructs the Immigration Judge to then enter an order granting or denying the immigration relief sought. However, it does not authorize the Immigration Judge to consider a respondent’s application for a new or different form of relief or a respondent’s request for consideration of other issues in the context of the background check remand.“ “Thus, if a respondent seeks to apply for a new or different form of relief, the respondent must file a separate motion to reopen, accompanied by the appropriate fee, with the Immigration Court after the Immigration Judge enters an order granting or denying the relief that was the subject of the background check remand.”

The full text of Matter of L-S-C-R- can be found here: https://www.justice.gov/eoir/media/1428161/dl?inline

BIA Rejects Finding that Russian Government Would not Protect Convert from Familial Harm

The Board of Immigration Appeals has rejected the Immigration Judge’s determination that the Russian government would not protect a woman who converted from Islam to Orthodox Christianity.

“While the respondent began experiencing harm at the hands of her family as a child, this harm continued well into adulthood and the respondent still failed to report it to the authorities. As an adult the respondent traveled to different cities far away from her family, and at times lived outside of her family’s control, yet she never sought assistance or protection from the police or other authorities. Although the respondent argues that her family maintains connections with the police in her town such that reporting her harm would have been futile or dangerous, the respondent’s status as an adult, her ability to travel apart from her family, and her ability to communicate, all demonstrate that the respondent could have requested assistance from the authorities in her country.

Without any citation to the record, the respondent also argues that “record evidence” contradicts our conclusion that her conversion to Russian Orthodox Christianity makes police protection more likely. However, the respondent’s conversion makes her a member of the country’s majority religion, and the record reflects that the Russian Orthodox Church maintains a privileged status in Russia and works closely with the Russian Government. Given these facts, the respondent has not established that her family members, who practice Islam, would be able to meaningfully influence the Russian authorities.”

The full text of Matter of F-B-A- can be found here: https://www.justice.gov/eoir/media/1428266/dl?inline