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Recent Published Board of Immigration Appeals Decisions

Below is my summary of the recent Board of Immigration Appeals decisions. Please contact me if you have any questions or comments about the cases, my interpretations thereof or if you need my legal assistance.

Matter of Agour, 26 I&N Dec. 566 (BIA 2015); In a potentially huge decision, the Board held that an immigrant who adjusted their status while in the United States can qualify for an INA § 237(a)(1)(H) fraud waiver. The Board had previously held that only those immigrants who were admitted from abroad (consular processed) and met the other statutory requirements were eligible for this rare and oft-overlooked waiver. This decision appears to pave the way for otherwise-admissible immigrants who committed fraud or a material misrepresentation during adjustment (i.e. marriage fraud) to obtain this waiver to maintain status and avoid removal.

Matter of Z-Z-O-, 26 I&N Dec. 586 (BIA 2015); The Board held that an Immigration Judge’s determination of future events in the context of an asylum case, is a finding of fact and subject to a clearly erroneous standard of review. The Board also held that whether an applicant has a objectively reasonable fear of future persecution is a legal determination and subject to a de novo standard of review.

Matter of Francisco-Alonzo, 26 I&N Dec. 594 (BIA 2015); The Board held that Fla. Stat. § 784.041(1) (felony battery) is an indivisible statute that is categorically a crime of violence under 18 U.S.C. § 16(b). The Board confirmed that when analyzing a criminal statute to determine if it is a crime of violence under 18 U.S.C. § 16(b) (residual clause), the Board uses an “ordinary case” not “minimum conduct” analysis. The Board distinguished cases analyzed under 18 U.S.C. § 16(a) (element-based) which uses a minimum conduct approach. The proper inquiry is whether the conduct encompassed by the elements of the offense presents a substantial risk that physical force may be used in the course of committing the offense in the “ordinary case.”

Matter of Fajardo Espinoza, 26 I&N Dec. 603 (BIA 2015); In a very limited decision, the Board held that a grant of Family Unity Benefits does not constitute an admission for the purposes of qualifying for Cancellation of Removal under INA § 240A(a). Cancellation of Removal requires, among other prerequisites, that the applicant have accrued seven years of continuous residence after being admitted in any status. A grant of Family Unity benefits does not qualify as such an admission.

Matter of J-R-R-A-, 26 I&N Dec. 609 (BIA 2015); The Board held that in the context of an asylum application, if there are sufficient concerns regarding an applicant’s mental competency, the Immigration Judge should first follow the requirements for assessing mental competency found in Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011). Second, the Judge should generally accept that the applicant has a subjective fear of harm necessary to support the asylum claim and then focus on whether the applicant has provided sufficient objective evidence to meet the burden of proof.

Matter of Pena, 26 I&N Dec. 613 (BIA 2015); The Board held that a returning lawful permanent resident could not be considered an arriving alien seeking admission unless they fell under the specific exceptions found in INA § 101(a)(13)(c). In what seemed to be an obvious decision, the Board overturned an Immigration Judge’s ruling that a lawful permanent resident, who allegedly obtained their residency by fraud, could be considered an arriving alien without falling into any of the specific exceptions found in INA § 101(a)(13)(c).

Matter of Singh, 26 I&N Dec. 623 (BIA 2015); In a rare published attorney discipline decision, the Board stated the obvious; an attorney who assisted in and facilitated the unlawful practice of law, made materially false statements to a DOJ officer, engaged in conduct prejudicial to the administration of justice, and failed to provide competent representation, should be suspended from practice before EOIR and the Board. This suspension stemmed from an attorney who requested that his legal assistant impersonate him during multiple telephonic hearings before EOIR.

Matter of Huang, 26 I&N Dec. 627 (BIA 2015); In another potentially very limited decision, the Board retracted from its holdings in Matter of Cariaga and Drigo that nunc pro tunc adoptions are not valid for immigration purposes. The Board held that when a non-citizen child is adopted, and the adoption proceedings began before the child turned 16, but the final order of adoption was not entered until after the child turned 16, but pursuant to state law the order was retroactive to the time the proceedings began (while the child was under 16), the adoption may still be valid for immigration purposes.

Matter of Ordaz, 26 I&N Dec. 637 (BIA 2015); The Board held that a Notice to Appear, which was served upon a respondent, but never filed with an Immigration Court, cannot be used to stop the accrual of continuous residence or continuous physical presence under INA § 240A(d)(1). Normally, the service and filing with an Immigration Court of the Notice to Appear would invoke the stop-time rule for applicants for cancellation of removal pursuant to INA § 240A(a) and (b). However, a served, but never filed NTA would not invoke the rule.

John Gihon is Board Certified in Immigration and Nationality Law by the Florida Bar. John is a partner with the law offices of Shorstein, Lasnetski & Gihon and passionate about crimmigration law.

You can reach John at John@slgattorneys.com
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