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Updates from the Board of Immigration Appeals and Good News for Immigrants held in Detention more than Six Months

Over the last two months the Board of Immigration Appeals has released a handful of new published decisions. I have summarized them and provided my insight into what the cases mean for the immigration practitioner. Also, since my last post on the case of Maxi Sopo there has been a very interesting interpretation of the ruling. In my blog on that case https://www.floridaimmigrationlawyerblog.com/2016/06/eleventh_circuit_court_of_appe_1.html, I interpreted the decision to require that immigration attorneys who wished to have a bond hearing when their clients were detained for more than six months pre-final order, would have to go to federal court with a habeas action first. However, that is not how the ACLU interpreted the case and not how it is playing out in court. The ACLU practice advisory says that immigration attorneys who believe their clients have been detained unreasonably long, pre-final order, can file their bond motions directly with the immigration courts. https://www.aclu.org/legal-document/practice-advisory-prolonged-mandatory-detention-and-bond-eligibility-eleventh-circuit. That is a huge time and cost saver for clients. The ramifications of the Sopo case are still shaking out in practice, so I will try and keep you posted on what happens in the filed going forward.

Now, back to the summaries of the published BIA cases for the last few months:

Matter of Gonzalez Romo, 26 I&N Dec. 743 (BIA 2016):
In a decision specifically limited to the jurisdiction of the U.S. Court of Appeals for the Ninth Circuit, the Board decided that a crime involving the solicitation of a drug trafficking offense is a crime involving moral turpitude (CIMT). In this case, the respondent was as returning lawful permanent resident who the Department determined was an arriving alien due to her inadmissibility for a CIMT conviction. The respondent argued that because the INA § 212(a)(2)(A)(i)(I) CIMT ground of inadmissibility mentioned only attempts and conspiracies to commit a CIMT, solicitation to commit a CIMT was not a CIMT. The Board rejected this argument reminding the respondent that in the context of CIMT analysis, an inchoate offense and a complete offense are treated the same.

Matter of Estrada, 26 I&N Dec. 749 (BIA 2016):
The Board continued to expand upon its recent jurisprudence for when the circumstance-specific approach, rather than just the categorical approach, should be used when analyzing a criminal statute. In this case, the Board examined a Georgia criminal statute under the circumstance-specific approach to determine whether the statute was a crime of domestic violence pursuant to INA § 237(a)(2)(E)(i). The Board stated that the circumstance-specific analysis applied only to determining the domestic nature of the offense and not to whether the statute was a crime of violence. The Board also specified that the documents that comprise the formal record of conviction, in addition to reliable police reports, may be used under the circumstance-specific approach.

Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016):
The Board held that the national security bar found in INA § 212(a)(3)(B)(iv)(VI) which applies to people who have provided material support to a terrorist organization, contains no implied duress exception. This bar, which applies in multiple contexts, is usually seen in asylum and withholding of removal claims, and with applicants applying for adjustment of status. In reaching its conclusion, the Board followed multiple published Circuit Court decisions that refused to read an implied duress exception into the “material support bar,” where Congress clearly chose not to include one in the statutory language. The Board also noted that it was redundant to read an implied duress exception into the bar when Congress created a specific waiver of the bar for duress cases in INA § 212(d)(3)(B)(i).

Matter of Gomez-Beltran, 26 I&N Dec. 765 (BIA 2016):
The Board followed the clear language of INA § 101(f)(6) as it relates to barring a finding of good moral character (GMC) if a person gives false testimony, under oath, during immigration proceedings. The Board held that if a respondent gives false testimony, under oath, during immigration proceedings, the respondent cannot establish GMC during the applicable statutory period. The Board did provide two potential arguments against such a finding; 1) where the respondent made a voluntary and timely recantation of the false testimony, and 2) they noted that not every misrepresentation or omission will be sufficient to constitute false testimony.

Matter of M-J-K-, 26 I&N Dec. 773 (BIA 2016):
In another case displaying the Board’s focus on mental health issues in immigration court, the Board stated that an immigration judge has the discretion to determine the appropriate safeguards in a case under of Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011). More specifically, the Board will review, de novo, an immigration judge’s decision regarding which safeguards to employ in a case involving a respondent who is incompetent due to mental health issues. There was nothing groundbreaking in this case, but it appeared the Board was reminding immigration judges that terminating removal proceedings as a safeguard in a case were a respondent was mentally ill, had a serious criminal history and was a danger to the community, was improper.

If you need an immigration attorney anywhere in the United States, but certainly if you live in Orlando or Jacksonville, please call Shorstein, Lasnetski & Gihon.
If you have a loved one who has been in immigration detention for more than six months and you want to know if we can help them secure a bond hearing, call us.
Visit our website for more information about SLG: http://www.slgattorneys.com

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