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Summary of Recent Attorney General, Board of Immigration Appeals Decisions and Immigration-Related Decisions from the U.S. Court of Appeals for the Eleventh Circuit

Recent Published AG Decision:

Matter of Silva-Trevino, 26 I&N Dec. 550 (AG 2015); Attorney General Holder (now former) completely vacated former AG Mukasey’s decision in 2008’s landmark decision, Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008)-please hold your applause to the end. AG Holder recognized that five of the seven Federal Circuits that have ruled on the issue have overturned at least the third prong of the Silva-Trevino analysis which allowed Immigration Judges to go beyond the categorical and modified categorical analyses and use evidence outside the record of conviction. This is one of two recent decisions that spend quite a bit of time focusing on the needed for a unitary Federal policy on Immigration. This may be an indication that the Board may be looking for additional areas of immigration jurisprudence where there is a conflict in the Circuits and attempt to rectify the conflicts through BIA or AG decisions.

Recent Published BIA Decisions:

Matter of Vides Casanova, 26 I&N Dec. 494 (BIA 2015); This is another recent published decision from the Orlando Immigration Court. Judge James Grim handled this case for EOIR. The Board held that Judge Grim was correct when he found that General Vides Casanova was removable pursuant to INA § 237(a)(4)(D) and barred from relief from removal pursuant to INA § 212(a)(3)(E)(iii)(II) (Both grounds related to the respondent’s participation in extrajudicial killings and torture in El Salvador in the 1970s and 1980s). In their analysis, the Board stated that to support this charge, the DHS did not need to establish any “directed personal involvement” by the respondent in the acts of torture or extrajudicial killings. Id. at 500. It was sufficient that the respondent, as a military leader, had “command responsibility” over those who carried out the actual extrajudicial killings and torture and that the “respondent’s actions, or failures to act, as a military commander fall within the definition of assisting or otherwise participating in” the prohibited act. Id. at 501. This decision provides a good analysis of both INA § 237(a)(4)(D) and INA § 212(a)(3)(E)(iii)(II), two areas of the Act that do not come up often.

Matter of L-A-C-, 26 I&N Dec. 516 (BIA 2015); The Board held that an Immigration Judge does not need to specifically point out the areas of an asylum/withholding of removal claim that need to be more fully corroborated and does not need to grant an automatic continuance to allow the respondent to attempt to obtain sufficient corroboration. The Board held that a respondent/applicant is on sufficient notice of their duty to corroborate their claim when then submit the application. In addition, while the Immigration Judge should identify the areas that are lacking sufficient corroboration and ask the respondent to explain why the evidentiary corroboration is lacking, the Court does not have to grant a continuance to obtain the corroboration, but should determine if there is good cause to grant the continuance.

Matter of Cerda Reyes, 26 I&N Dec. 528 (BIA 2015); The Board held that the location where a bond hearing takes place is a question of venue and not of jurisdiction. The Board noted that while “a bond hearing will usually be held in the location where the alien is detained,” the location of the hearing is subject to a discretionary decision on where venue is proper, not a jurisdictional question of any one Court’s authority to hold a bond hearing.

Matter of Montiel, 26 I&N Dec. 555 (BIA 2015); The Board held that administrative closure was appropriate in a removal case arising in the Ninth Circuit where the basis for removal was a criminal conviction that was on direct appeal in the Federal Circuit Court of Appeal. Although the Board has held that a criminal conviction that is on direct appeal is usually not final for immigration purposes, Matter of Cardenas Abreu, 24 I&N Dec. 795 (BIA 2009), this area of immigration law is not all that well-settled, and this case gives immigration practitioners another tool to try and delay removal cases when this issue is at play.

Matter of Fitzpatrick, 26 I&N Dec. 559 (BIA 2015); The Board held that to meet its burden of proof to establish that the respondent is removable pursuant to INA § 237(a)(6)(A) (unlawful voting), the DHS need only show that the respondent voted in an election where there were candidates for Federal office on the ballot and need not show any specific intent to violate the law.

Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015); The Board held that only aliens who originally entered the United States as lawful permanent residents (with an immigrant visa) are barred from INA § 212(h) relief for a prior aggravated felony conviction. In another effort at establishing a unitary Federal policy on immigration, the Board overruled its prior decision in Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), and followed nine of the Federal Circuit Courts (including the Eleventh) in finding that lawful permanent residents who adjusted their status in the United States are not subject to the aggravated felony bar found in INA § 212(h).

Recent Published Eleventh Circuit Decisions related to Immigration:

Walker v. United States of America, Docket Number 14-12814 Decided April 21, 2015; The Court held that a conviction in Florida for Uttering a Forged Instrument, in violation of Fla. Stat. § 831.02, is a crime that involves deceit and is categorically a crime involving moral turpitude and when coupled with a loss to the victim of $10,000 or more, is an aggravated felony under INA § 101(a)(43)(M)(i).