Board of Immigration Appeals (BIA) Precedent Decisions


January 2002 to July 2003 Summaries

BIA Precedent Decisions

BIA Decisions - By Volume and Interim Decision Number (Volumes 16 to 23, most recent)

Matter of Jung Tae SUH , 23 I&N Dec. 626 (BIA 2003) Decided July 1, 2003

(1) A presidential or gubernatorial pardon waives only the grounds of
removal specifically set forth in section 237(a)(2)(A)(v) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(v) (2000), and
no implicit waivers may be read into the statute.

(2) The respondent’s pardon did not waive his removability as an alien
convicted of a crime of domestic violence or child abuse under section
237(a)(2)(E)(i) of the Act, because that section is not specifically
included in section 237(a)(2)(A)(v).

Section 237(a)(2)(A)(v) of the Act specifies the effect of a
presidential or gubernatorial pardon on certain grounds of removability.
It states that “[c]lauses (i), (ii), (iii), and (iv)” of section
237(a)(2)(A) “shall not apply” where such a pardon has been granted. It
thereby provides for an automatic waiver of removability where a pardon
has been granted for (i) crimes of moral turpitude, (ii) multiple
criminal convictions, (iii) aggravated felonies, and (iv) certain high
speed flight convictions. There is no comparable provision regarding
pardons that would cover convictions for other offenses that render an
alien removable, such as acts of domestic violence or child abuse
pursuant to section 237(a)(2)(E)(i), under which the respondent was
charged. Other removable offenses, such as controlled substance
violations under section 237(a)(2)(B), certain firearm offenses under
section 237(a)(2)(C), and violations of protection orders under section
237(a)(2)(E)(ii), are similarly not covered by the pardon waiver of
section 237(a)(2)(A)(v) of the Act.

Matter of PICKERING , 23 I&N Dec. 621 (BIA 2003) Decided June 11, 2003

(1) If a court vacates an alien’s conviction for reasons solely relatedJuly 2003
to rehabilitation or immigration hardships, rather than on the basis of
a procedural or substantive defect in the underlying criminal
proceedings, the conviction is not eliminated for immigration purposes.

(2) Where the record indicated that the respondent’s conviction for
possession of a controlled substance was quashed by a Canadian court for
the sole purpose of avoiding the bar to his acquisition of permanent
residence, the court’s action was not effective to eliminate the
conviction for immigration purposes.

In re Y-T-L -, 23 I&N Dec. 601 (BIA 2003) Decided May 22, 2003

Where an alien has established past persecution based on the forced
sterilization of his spouse pursuant to a policy of coercive family
planning, the fact that, owing to such sterilization, the alien and his
spouse face no further threat of forced sterilization or abortion does
not constitute a “fundamental change” in circumstances sufficient to
meet the standards for a discretionary denial under 8 C.F.R. §
1208.13(b)(1)(i)(A).

In re Jose Abraham DEANDA-ROMO , 23 I&N Dec. 597 (BIA 2003) Decided May
8, 2003

The respondent, who was convicted of two misdemeanor crimes involving
moral turpitude, is not precluded by the provisions of section
240A(d)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. §
1229b(d)(1)(B) (2000), from establishing the requisite 7 years of
continuous residence for cancellation of removal under section
240A(a)(2), because his first crime, which qualifies as a petty offense,
did not render him inadmissible, and he had accrued the requisite 7
years of continuous residence before the second offense was committed.

In re Fidel GARCIA-HERNANDEZ , 23 I&N Dec. 590 (BIA 2003) Decided May 8,
2003

(1) An alien who has been convicted of a crime involving moral turpitude
that falls within the “petty offense” exception in section
212(a)(2)(A)(ii)(II) of the Immigration and Nationality Act, 8 U.S.C. §
1182(a)(2)(A)(ii)(II) (1994), is not ineligible for cancellation of
removal under section 240A(b)(1)(C) of the Act, 8 U.S.C. §
1229b(b)(1)(C) (Supp. IV 1998), because he “has not been convicted of an
offense under section 212(a)(2)” of the Act.

(2) An alien who has committed a crime involving moral turpitude that
falls within the “petty offense” exception is not ineligible for
cancellation of removal under section 240A(b)(1)(B) of the Act, because
commission of a petty offense does not bar the offender from
establishing good moral character under section 101(f)(3) of the Act, 8
U.S.C. § 1101(f)(3) (Supp. IV 1998).

(3) An alien who has committed more than one petty offense is not
ineligible for the “petty offense” exception if “only one crime” is
a crime involving moral turpitude.

4) The respondent, who was convicted of a crime involving moral
turpitude that qualifies as a petty offense, was not rendered ineligible
for cancellation of removal under section 240A(b)(1) of Act by either
his conviction or his commission of another offense that is not a crime
involving moral turpitude.

In re Moises NAVAS-ACOSTA ,23 I&N Dec. 586 (BIA 2003) Decided April
29, 2003

(1) United States nationality cannot be acquired by taking an oath of
allegiance pursuant to an application for naturalization, because birth
and naturalization are the only means of acquiring United States
nationality under the Immigration and Nationality Act. (2) The
respondent, who was born abroad and did not acquire United States
nationality at birth, by naturalization, or by congressional action,
failed to establish such nationality by declaring his allegiance to the
United States in connection with an application for naturalization.
Respondent contended that he submitted an application for naturalization
in 1994 and was examined by the Service on January 12, 1996. He signed a
statement declaring his allegiance to the United States. The
naturalization application was denied by the Service on August 22, 1996.
The respondent, citing Hughes v. Ashcroft, 255 F.3d 752 (9th Cir. 2001),
contended that by applying for naturalization and taking an oath of
allegiance, he has attained the status of a “national” of the United
States, as that term is defined in section 101(a)(22)(B) of the Act,
thereby excluding him from the definition of an “alien.” After
considering the historical meaning of the term “national” and the
statutory framework of the Act, we find that nationality under the Act
may be acquired only through birth or naturalization. The respondent was
born in El Salvador, so there is a rebuttable presumption of his
alienage. Matter of Rodriguez-Tejedor, 23 I&N Dec. 153, 164 (BIA 2001).
He does not fall into any of the categories of persons who acquire
nationality through birth under Chapter 1 of Title III of the Act, and
he is not a naturalized citizen. He also does not claim nationality by
virtue of any separate legislation, outside the provisions of the Act,
allowing for the acquisition of nationality on either an individual or
collective basis. His alienage has therefore been established.
Accordingly, the Service’s appeal was sustained.

Matter of D-J-, 23 I&N Dec. 572 (AG 2003) Decided April 17, 2003

(1) The Attorney General has broad discretion in bond proceedings under
section 236(a) of the Immigration and Nationality Act, 8 U.S.C. §
1226(a) (2000), to determine whether to release an alien on bond. (2)
Neither section 236(a) of the Act nor the applicable regulations confer
on an alien the right to release on bond. (3) In determining whether to
release on bond undocumented migrants who arrive in the United States by
sea seeking to evade inspection, it is appropriate to consider national
security interests implicated by the encouragement of further unlawful
mass migrations and the release of undocumented alien migrants into the
United States without adequate screening. (4) In bond proceedings
involving aliens seeking to enter the United States illegally, where the
Government offers evidence from sources in the Executive Branch with
relevant expertise establishing that significant national security
interests are implicated, Immigration Judges and the Board of
Immigration Appeals shall consider such interests. (5) Considering
national security grounds applicable to a category of aliens in denying
an unadmitted alien’s request for release on bond does not violate
any due process right to an individualized determination in bond
proceedings under section 236(a) of the Act. (6) The denial of the
respondent’s release on bond does not violate international law. (7)
Release of the respondent on bond is unwarranted due to considerations
of sound immigration policy and national security that would be undercut
by the release of the respondent and other similarly situated
undocumented alien migrants who unlawfully crossed the borders of the
United States on October 29, 2002; further, the respondent failed to
demonstrate adequately that he does not present a risk of flight if
released and should be denied bond on that basis as well.

In re AASAD , 23 &N Dec. 553 (BIA 2003), Decided February 12, 2003

(1) Case law of the United States Supreme Court holding, in the context
of criminal proceedings, that there can be no deprivation of effective
assistance of counsel where there is no constitutional right to counsel
does not require withdrawal from Matter of Lozada, 19 I&N Dec. 637 (BIA
1988), aff’d, 857 F.2d 10 (1st Cir. 1988), finding a right to assert a
claim of ineffective assistance of counsel in immigration
proceedings,where the United States Courts of Appeals have recognized
that a respondent has a Fifth Amendment due process right to a fair
immigration hearing, which may be denied if counsel prevents the
respondent from meaningfully presenting his or her case.

(2) The respondent did not establish that his former counsel’s failure
to file a timely appeal constituted sufficient prejudice to warrant
consideration of his late appeal on the basis of ineffective assistance
of counsel.

Matter of Koloamatang 23 &N Dec. 548 (BIA 2003), Decided January 8,
2003

An alien who acquired permanent resident status through fraud or
misrepresentation has never been “lawfully admitted for permanent
residence” and is therefore ineligible for cancellation of removal under
section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. §
1229b(a) (2000).

In re M-D -, 23 I&N Dec. 540 (BIA 2002) December 18, 2002

(1) An alien may be charged with receipt of a notice to appear and
notice of the hearing date, where the notice is sent by certified mail
to the alien’s correct address, but it is returned by the United States
Postal Service marked “unclaimed.” (2) The regulations at 8 C.F.R. §
3.13 (2002) do not require that the notice to appear or notice of
hearing in removal proceedings be sent to the alien or the alien’s
attorney of record by regular mail, as opposed to certified mail.

In re Rosa MEJIA-ANDINO ,23 I&N Dec. 53 3(BIA 2002) December 4, 2002

Removal proceedings against a minor under 14 years of age were properly
terminated because service of the notice to appear failed to meet the
requirements of 8 C.F.R. § 103.5a(c)(2)(ii) (2002), as it was served
only on a person identified as the respondent’s uncle, and no effort was
made to serve the notice on the respondent’s parents, who apparently
live in the United States.

In re Glendi GOMEZ-GOMEZ ,23 I&N Dec. 522 (BIA 2002) December 4, 2002

(1) The Immigration and Naturalization Service met its burden, in an in
absentia removal proceeding, of establishing a minor respondent’s
removability by clear, unequivocal, and convincing evidence, where (1) a
Record of Deportable/Inadmissible Alien (Form I-213) was submitted,
documenting the respondent’s identity and alienage; (2) the respondent,
who failed without good cause to appear at her removal hearing, made no
challenge to the admissibility of the Form I-213; (3) there were no
grounds for a finding that the admission of the Form I-213 would be
fundamentally unfair; and (4) no independent evidence in the record
supported the Immigration Judge’s conclusion that the respondent may not
have been the child of the adult who claimed to be the respondent’s
parent and who furnished the information regarding her foreign
citizenship. Matter of Ponce-Hernandez, 22 I&N Dec. 784 (BIA 1999),
followed. (2) The respondent, a minor who could not be expected to
attend immigration proceedings on her own, was properly notified of her
hearing, through proper mailing of a Notice to Appear (Form I-862) to
the last address provided by her parent, with whom she was residing.

In re Nabil Ahmed ELGENDI , 23 I&N Dec. 515 (BIA 2002) Decided October
31, 2002

In accordance with authoritative precedent of the United States Court of
Appeals for the Second Circuit in United States v. Pornes-Garcia, 171
F.3d 142 (2d Cir. 1999), and United States v. Polanco, 29 F.3d 35 (2d
Cir. 1994), an individual who has been convicted twice of misdemeanor
possession of marijuana in violation of New York State law has not been
convicted of an aggravated felony under section 101(a)(43)(B) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000).

Matter of Martin , 23 I&N Dec. 491 (BIA 2002) Decided September 26, 2002

The offense of third-degree assault (a class A misdemeanor) in violation
of section 53a-61(a)(1) of the Connecticut General Statutes, which
involves the intentional infliction of physical injury upon another, is
a crime of violence under 18 U.S.C. § 16(a) (2000) and is therefore an
aggravated felony under section 101(a)(43)(F) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2000).

Defendant was convicted pursuant to a guilty plea of the offense of
third-degree assault,which is a class A misdemeanor under Connecticut
law. He was sentenced to a 1-year term of imprisonment. The term “crime
of violence” referenced is defined as (a) an offense that has as an
element the use, attempted use, or threatened use of physical force
against the person or property of another, or (b) any other offense that
is a felony and that, by its nature, involves a substantial risk that
physical force against the person or property of another may be used in
the course of committing the offense. Respondent’s offense did not
constitute a crime of violence under 18 U.S.C. § 16(b), which is
confined to felony offenses by its terms, but rather by reference to 18
U.S.C. § 16(a).

By expressly including misdemeanor simple assault offenses within the
crime of violence definition at 18 U.S.C. § 16(a), Congress
unequivocally manifested its understanding that assault offenses
involving the intentional infliction or threatened infliction of
“injury” or “bodily harm,” such as those described by 18 U.S.C. §
113(a)(5) and section 53a-61(a)(1) of the Connecticut General Statutes,
have as an inherent element the actual or threatened use of physical
force.

Matter of Recinas , 23 I&N Dec. 467 (BIA 2002)

(1) The respondent, a single mother who has no immediate family
remaining in Mexico, provides the sole support for her six children, and
has limited financial resources, established eligibility for
cancellation of removal under section 240A(b) of the Immigration and
Nationality Act, 8 U.S.C. § 1229b(b) (2002), because she demonstrated
that her United States citizen children, who are 12, 11, 8, and 5 years
old, will suffer exceptional and extremely unusual hardship upon her
removal to her native country. (2) The factors considered in assessing
the hardship to the respondent’s children include the heavy burden
imposed on the respondent to provide the sole financial and familial
support for her six children if she is deported to Mexico, the lack of
any family in her native country, the children’s unfamiliarity with the
Spanish language, and the unavailability of an alternative means of
immigrating to this country.

Matter of S-H-, et al., 23 I&N Dec. 462 (BIA 2002)

Under new regulations that become effective on September 25, 2002, the
Board of Immigration Appeals has limited fact-finding ability on appeal,
which heightens the need for Immigration Judges to include in their
decisions clear and complete findings of fact that are supported by the
record and are in compliance with controlling law. Matter of
Vilanova-Gonzalez, 13 I&N Dec. 399 (BIA 1969), and Matter of
Becerra-Miranda, 12 I&N Dec. 358 (BIA 1967), superseded.

In re Anderson David Justin SMALL

23 I&N Dec. 448 (BIA 2002) Interim Decision #3476, Decided June 4, 2002

A misdemeanor offense of sexual abuse of a minor constitutes an
aggravated felony under section 101(a)(43)(A) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2000).

In re Hilario ROMALEZ-Alcaide, 23 I&N Dec. 423 (BIA 2002) Interim
Decision #3475, Decided May 29, 2002

For purposes of determining eligibility for cancellation of removal
pursuant to section 240A(b) of the Immigration and Nationality Act, 8
U.S.C. § 1229b(b) (Supp. IV 1998), continuous physical presence is
deemed to end at the time an alien is compelled to depart the United
States under threat of the institution of deportation or removal
proceedings.

In re Walter Antonio SANTOS-LOPEZ , 23 I&N Dec. 419 (BIA 2002) Interim
Decision #3474, Decided May 14, 2002

(1) Under the decisions of the United States Court of Appeals for the
Fifth Circuit in United States v. Hernandez-Avalos, 251 F.3d 505 (5th
Cir.), cert. denied, 122 S. Ct. 305 (2001), and United States v.
Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997), a determination whether an
offense is a “felony” for purposes of 18 U.S.C. § 924(c)(2) (2000)
depends on the classification of the offense under the law of the
convicting jurisdiction. Matter of Yanez, 23 I&N Dec. 390 (BIA 2002),
followed.

(2) Each of the respondent’s two convictions for possession of marihuana
is classified as a misdemeanor offense under Texas law; therefore,
neither conviction is for a “felony” within the meaning of 18 U.S.C.
§ 924(c)(2) or an “aggravated felony” within the meaning of section
101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. §
1101(a)(43)(B) (2000).

In re Ismael YANEZ-Garcia , 23 I&N Dec. 390 (BIA 2002 ) Interim Decision
#3473, Decided May 13, 2002

The determination whether a state drug offense constitutes a “drug
trafficking crime” under 18 U.S.C. § 924(c)(2) (2000), such that it
may be considered an “aggravated felony” under section 101(a)(43)(B) of
the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000),
shall be made by reference to decisional authority from the federal
circuit courts of appeals, and not by reference to any separate legal
standard adopted by the Board of Immigration Appeals. Matter of K-V-D-,
Interim Decision 3422 (BIA 1999), overruled. Matter of L-G-, 21 I&N Dec.
89 (BIA 1995), and Matter of Davis, 20 I&N Dec. 536 (BIA 1992),
modified.

In re Melanie Beaucejour JEAN, 23 I&N Dec. 373 (A.G. 2002) Interim
Decision #3472, Decided May 2, 2002

(1) The 30-day period set forth in 8 C.F.R. § 3.38(b) (2002) for filing
an appeal to the Board of Immigration Appeals is mandatory and
jurisdictional, and it begins to run upon the issuance of a final
disposition in the case.

(2) The Board of Immigration Appeals’ authority under 8 C.F.R. § 3.1(c)
(2002) to certify cases to itself in its discretion is limited to
exceptional circumstances, and is not meant to be used as a general cure
for filing defects or to otherwise circumvent the regulations, where
enforcing them might result in hardship.

(3) In evaluating the propriety of granting an otherwise inadmissible
alien a discretionary waiver to permit adjustment of status from refugee
to lawful permanent resident pursuant to section 209(c) of the
Immigration and Nationality Act, 8 U.S.C. § 1159(c) (2000), any
humanitarian, family unity preservation, or public interest
considerations must be balanced against the seriousness of the criminal
offense that rendered the alien inadmissible.

(4) Aliens who have committed violent or dangerous crimes will not be
granted a discretionary waiver to permit adjustment of status from
refugee to lawful permanent resident pursuant to section 209(c) of the
Act except in extraordinary circumstances, such as those involving
national security or foreign policy considerations, or cases in which an
alien clearly demonstrates that the denial of status adjustment would
result in exceptional and extremely unusual hardship. Depending on the
gravity of the alien’s underlying criminal offense, such a showing of
exceptional and extremely unusual hardship might still be insufficient.

(5) Aliens who have committed violent or dangerous crimes will not be
granted asylum, even if they are technically eligible for such relief,
except in extraordinary circumstances, such as those involving national
security or foreign policy considerations, or cases in which an alien
clearly demonstrates that the denial of status adjustment would result
in exceptional and extremely unusual hardship. Depending on the gravity
of the alien’s underlying criminal offense, such a showing of
exceptional and extremely unusual hardship might still be insufficient.

Manuel RAMOS ,23 I&N Dec. 336 (BIA 2002) Decided April 4, 2002

(1) In cases arising in circuits where the federal court of appeals has
not decided whether the offense of driving under the influence is a
crime of violence under 18 U.S.C. § 16(b) (2000), an offense will be
considered a crime of violence if it is committed at least recklessly
and involves a substantial risk that the perpetrator may resort to the
use of force to carry out the crime; otherwise, where the circuit court
has ruled on the issue, the law of the circuit will be applied to cases
arising in that jurisdiction.

(2) The offense of operating a motor vehicle while under the influence
of intoxicating liquor in violation of chapter 90, section 24(1)(a)(1)
of the Massachusetts General Laws is not a felony that, by its nature,
involves a substantial risk that physical force against the person or
property of another may be used in the course of committing the offense
and is therefore not a crime of violence. Matter of Puente , Interim
Decision 3412 (BIA 1999), and Matter of Magallanes , Interim Decision
3341 (BIA 1998), overruled.

In re Martha ANDAZOLA-Rivas, 23 I&N Dec. 319 (BIA 2002) Interim Decision
#3467, Decided April 3, 2002

(1) The respondent, an unmarried mother, did not establish eligibility
for cancellation of removal under section 240A(b) of the Immigration and
Nationality Act, 8 U.S.C. § 1229b(b) (2000), because she failed to
demonstrate that her 6- and 11-year-old United States citizen children
will suffer exceptional and extremely unusual hardship upon her removal
to Mexico.

(2) The factors considered in assessing the hardship to the respondent’s
children include the poor economic conditions and diminished educational
opportunities in Mexico and the fact that the respondent is unmarried
and has no family in that country to assist in their adjustment upon her
return.

In re Mario Eduardo VELARDE-Pacheco, 23 I&N Dec. 253 (BIA 2002) Interim
Decision #3463, Decided March 6, 2002

A properly filed motion to reopen for adjustment of status based on a
marriage entered into after the commencement of proceedings may be
granted in the exercise of discretion , notwithstanding the pendency of
a visa petition filed on the alien’s behalf, where: (1) the motion to
reopen is timely filed; (2) the motion is not numerically barred by the
regulations; (3) the motion is not barred by *Matter of Shaar, 21 I&N
Dec. 541 (BIA 1996), or on any other procedural grounds;(4) clear and
convincing evidence is presented indicating a strong likelihood that the
marriage is bona fide; and (5) the Immigration and Naturalization
Service does not oppose the motion or bases its opposition solely on
*Matter of Arthur , 20 I&N Dec. 475 (BIA 1992). *Matter of H-A- ,
Interim Decision 3394 (BIA 1999), and Matter of Arthur, supra, modified.

*Matter of Arthur, 1992 BIA LEXIS 8; 20 I. & N. Dec. 475, ID # 3173

(1) Under the rule of Matter of Garcia, 16 I&N Dec. 653 (BIA
1978), a motion to reopen should generally be granted in cases involving
an application for adjustment of status filed simultaneously with a visa
petition, notwithstanding the fact that the visa petition has not yet
been adjudicated, unless the applicant for adjustment appears clearly
ineligible for the preference classification claimed in the underlying
petition.

(2) Subsequent to our decision in Matter of Garcia, supra, Congress
amended sections 204(g) and 245(e) of the Immigration and Nationality
Act, 8 U.S.C. @@ 1154(g) and 1255(e) (Supp. II 1990), to preclude an
alien from adjusting his status based on a marriage that was entered
into after the commencement of proceedings to determine his right to
enter or remain in the United States and to bar the approval of a visa
petition to accord immediate relative or preference status based upon
such marriage until after the beneficiary of the petition has resided
outside the United States for a 2-year period following the marriage,
unless the alien establishes "by clear and convincing evidence to the
satisfaction of the Attorney General that the marriage was entered into
in good faith and . . . was not entered into for the purpose of
procuring the alien's entry as an immigrant."

*Matter of Garcia, 1978 BIA LEXIS 53; 16 I. & N. Dec. 653, ID # 2684

(1) Rule that reopening of proceedings will be denied absent a prima
facie showing that the statutory requirements for relief have been met
must be reexamined as to adjustment of status in view of the amendment
of 8 C.F.R. 245.2(a)(2) permitting an adjustment application, filed with
a visa petition, to be retained if later approval of the petition would
make a visa available at time of filing.

(2) 8 C.F.R. 245.2(a)(2), permitting simultaneous filing of an
application for adjustment of status and a visa petition, applies both
before and after the issuance of an Order to Show Cause.

(3) Service policy permits a prima facie qualified beneficiary of a visa
petition to remain in the United States pending final adjudication of
the petition and an adjustment application.

(4) Unless clear ineligibility is apparent in the record, the Board
shall generally grant motions to reopen in cases involving an
application for adjustment of status filed simultaneously with a visa
petition pursuant to 8 C.F.R. 245.2(a)(2), notwithstanding the fact that
the petition has not yet been adjudicated.

(5) An immigration judge may, in his discretion, grant a motion to
reopen or a request for a continuance [*2] of a deportation hearing
pending final adjudication of a visa petition filed simultaneously with
an adjustment application under 8 C.F.R. 245.2(a)(2) where a prima facie
approvable visa petition and adjustment application have been submitted
to him. Matter of Kotte, Interim Decision 2634 (BIA 1978) clarified.

*H-A- , 22 I&NDec. 728 (BIA 1999), Modified, 23 I&N 253 (BIA 2002)

Matter of Arthur, 20 I&N Dec. 475 (BIA 1992), is not inconsistent with
the motions to reopen regulations at 8 C.F.R. §§ 3.2(c)(2) and
3.23(b)(4)(i) (effective July 1, 1996). Matter of Arthur, supra,
reaffirmed.

*Shaar , 21 I&N Dec. 541(BIA 1996)

(1) An alien who has filed a motion to reopen during the pendency of a
voluntary departure period in order to apply for suspension of
deportation and who subsequently remains in the United States after the
scheduled date of departure is statutorily ineligible for suspension of
deportation pursuant to section 242B(e)(2)(A) of the Immigration and
Nationality Act, 8 U.S.C. § 1252b(e)(2)(A) (Supp. V 1993), if the notice
requirements of that section have been satisfied, absent a showing that
the alien’s failure to timely depart the United States was due to
“exceptional circumstances” under section 242B(f)(2) of the Act.

(2) Neither the filing of a motion to reopen to apply for suspension of
deportation during the pendency of a period of voluntary departure, nor
the Immigration Judge’s failure to adjudicate the motion to reopen prior
to the expiration of the alien’s voluntary departure period constitutes
an "exceptional circumstance."

In re Laura Estella SALAZAR-Regino, 23 I&N Dec. 223 (BIA 2002) Interim
Decision #3462 Decided February 14, 2002

(1) An alien whose adjudication of guilt was deferred pursuant to
article 42.12, section 5(a) of the Texas Code of Criminal Procedure
following her plea of guilty to possession of a controlled substance is
considered to have been convicted of the offense. Matter of Roldan,
Interim Decision 3377 (BIA 1999), reaffirmed.

(2) In Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), the United
States Court of Appeals for the Ninth Circuit overruled in part Matter
of Roldan, supra, which will not be applied in cases arising within the
jurisdiction of the Ninth Circuit.

(3) In light of the decisions in United States v. Hernandez-Avalos, 251
F.3d 505 (5th Cir. 2000), cert. denied, 122 S. Ct. 305 (2001), and
United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997), the
decision of the Board of Immigration Appeals in Matter of K-V-D-,
Interim Decision 3422 (BIA 1999), will not be applied in cases arising
within the jurisdiction of the Fifth Circuit.

In re Carlos VASQUEZ-MUNIZ, 23 I&N Dec. 207 (BIA 2001) Interim Decision
#3461 Decided January 15, 2002.

(1) An offense defined by state or foreign law may be classified as an
aggravated felony as an offense "described in" a federal statute
enumerated in section 101(a)(43) of the Immigration and Nationality Act,
8 U.S.C. Sec. 1101(a)(43) (1994 & Supp. V 1999), even if it lacks the
jurisdictional element of the federal statute.

(2) Possession of a firearm by a felon in violation of section
12021(a)(1) of the California Penal Code is an aggravated felony under
section 101(a)(43)(E)(ii) of the Act because it is “described in” 18
U.S.C. Sec. 922(g)(1) (1994). Matter of Vasquez-Muniz , Interim Decision
3440 (BIA 2000), overruled . 2001 BIA Cases (click on link)

Posted: Sun - September 28, 2003 at 04:03 PM        

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