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Summaries of Unpublished BIA Decisions from Florida

This part of the latest issue of the AILA Georgia-Alabama and Central and South Florida Chapter 11th Circuit Litigation Newsletter summarizes unpublished BIA decisions from Florida. The summarized cases are for April and May 2016.

This is a group effort of a number of attorneys – John Gihon, Marshall Cohen, Roberta Cooper, Kathleen Schulman, Mariana Munoz-Parsons and myself. I would like to commend everyone for their hard work. Any feedback from members may be sent to me, Bruce Buchanan of Sebelist Buchanan Law PLLC at bbuchanan@sblimmigration.com or John Gihon of Shorstein, Lasnetski & Gihon at John@slgattorneys.com.

Miami, FL

Eduardo Fernandes Marcon, A089 159 932 (BIA Mar. 2, 2016) (2016 WL 1084485) – The respondent appealed the IJ’s denial of a continuance. The BIA agreed with the IJ that the respondent did not demonstrate “good cause” for a continuance based on prospective relief based on a VAWA self-petition with USCIS. The BIA reasoned that the respondent had not filed the petition with USCIS, and did not demonstrate prima facie eligibility for the requested benefit. Moreover, the BIA was also not persuaded by the respondent’s due process challenges asserting that the IJ was biased. The BIA explained that the respondent did not specify any instances in which the IJ demonstrated bias, and found that the IJ was impartial in conducting the removal proceedings, as the IJ afforded the respondent “a number of continuances over several years to pursue various forms of relief.”

Mario Francisco-Alonzo, A029 275 076 (BIA Mar. 2, 2016) (2016 WL 1084487) – The BIA sustained DHS’s appeal of the IJ’s decision terminating proceedings, finding that the respondent’s conviction is not an aggravated felony crime of violence under 18 U.S.C. § 16(b) based on the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015). The BIA disagreed with the IJ’s “broad reading of Johnson as having invalidated [the] application of the “ordinary case” test in immigration law. To reach its conclusion, the BIA reasoned that the Eleventh Circuit decision, United States v. Keelen, 786 F.3d 865, 871 (11th Cir. 2015), which was decided before Johnson, “remains controlling law in removal proceedings arising within the Eleventh Circuit.” The BIA conveyed that “it is not for the Immigration Judge or this Board to declare that Eleventh Circuit precedent has been implicitly overruled by the Supreme Court. If Keelen needs to be revisited in light of Johnson, then the Eleventh Circuit (or the Supreme Court) would be the proper authority to do so.” Notably, however, in a footnote, the BIA acknowledged that three of the circuit courts of appeals have applied the Johnson Court’s reasoning to invalidate 18 U.S.C. § 16(b).

Marie Fanette Funeus, A047 631 119 (BIA Mar. 14, 2016) (2016 WL 1357966) – The BIA remanded the respondent’s case to the IJ for preparation of a “sufficient decision in this matter setting out the reasons for the decision.” The BIA found that the “brief handwritten notation” on the IJ’s decision not sufficiently address whether the NTA and Notice of Hearing, which were both sent by regular mail, were properly served on the respondent.

Glenroy Blackwood, A062 678 337 (BIA Mar. 18, 2016) (2016 WL 1357927) – The respondent appealed the IJ’s finding that his conviction for aggravated assault with a deadly weapon under Fla. Stat. § 784.021 was a crime involving moral turpitude (CIMT). The respondent argued that the statute of conviction is a general intent crime, and therefore is not a CIMT. The BIA found that Fla. Stat. § 784.021 requires “proof of an intentional threat that creates a fear of imminent violence.” Thus, to satisfy the intent element the State must prove that the defendant did “an act that was substantially certain to put the victim in fear of imminent violence.” Pinkney v. State, 74 So.3d 572, 576 (Fla. Dist. Ct. App. 2011). Based on the statute’s specific intent “to make a threat to do violence[,]” the BIA agreed with the IJ and held that assault with a deadly weapon is a CIMT.

Carlos Fleitas Carranza, A076 460 879 (BIA Apr. 22, 2016) (2016 WL2848961) – The BIA remanded the respondent’s case to the IJ for further analysis and issuance of a new decision. The BIA agreed with the respondent’s contention that the IJ’s decision does not explicitly find that DHS met its burden of proof to show removability by clear and convincing evidence. The BIA found that the IJ’s decision “lacks sufficient analysis and does not provide an adequate opportunity to the alien to contest the [IJ’s] determination on appeal and leaves the Board without adequate means of review[.]”

Orlando, FL

Jihad Smouni, A096 005 999 (BIA Mar. 30, 2016) (2016 WL 1722540) – After the IJ ordered the respondent removed in absentia, the respondent filed his first motion to reopen. The IJ denied the motion because the respondent failed to provide a sworn statement, and thus had not rebutted the presumption that the Notice of Hearing was properly served. The respondent filed a second motion to reopen alleging the same facts but added a sworn statement. The IJ denied the second motion to reopen for being numerically barred. The respondent appealed alleging ineffective assistance of former counsels and invoking equitable tolling. The BIA agreed to reopen proceedings, after construing the respondent’s motion to reopen as a motion to remand.

Collin Alesta Campbell, A203 018 174 (BIA Apr. 29, 2016) (2016 WL 2848933) – The BIA denied in part the respondent’s motion to reconsider, finding that the BIA did not err in stating that when applying for adjustment of status, the respondent was obligated to demonstrate by clear and convincing evidence that he was not inadmissible. However, the BIA granted, in part, the respondent’s motion to reconsider, and remanded the case to the IJ for further proceedings. The respondent had requested a remand for an opportunity to submit additional evidence regarding his exact statute of conviction. The BIA found that the respondent met the standards for a motion to remand, citing Matter of Coelho, 20 I&N Dec 464 (BIA 1992).

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