Summaries of Recent Publish Board of Immigration Appeals Decisions

Matter of D-M-C-P-, 26 I&N Dec. 644 (BIA 2015); The Board decided that neither the Board, nor the Immigration Courts have jurisdiction to determine if a respondent was properly placed into Asylum-Only Proceedings pursuant to INA § 217. Once an immigration officer determined that an alien was subject to removal as a visa waiver violator, the only issue the Immigration Court or the Board could review is whether the alien qualified for asylum or withholding or deferral of removal. In addition, the Immigration Judge cannot dismiss properly-filed applications for relief from removal due to an alien’s failure to comply with the biometrics requirement pursuant to 8 C.F.R. § 1003.47(c), (d), unless the respondent was advised of the biometrics requirement, provided a deadline for complying and advised of the consequences for failing to comply.

Matter of M-A-F- et al., 26 I&N Dec. 651 (BIA 2015); The Board held that where a respondent has filed a second or substantially amended asylum application, it will be considered a new application, and the filing date of the later application is operative for determining if the provisions of the REAL ID Act of 2005 apply and if an asylum applicant has met the one-year filing deadline. The Court will conduct a case-by-case factual analysis to make this determination, however a second or amended asylum application that raises a new basis for asylum or amends a prior fraudulent application will be considered a new application rather than an amendment of the old one.

Matter of R-K-K-, 26 I&N Dec. 658 (BIA 2015); The Board held that an Immigration Judge may rely on documents and statements from another asylum case while making an adverse credibility determination. The Department may provide applications and evidence from another case in order to impeach the credibility of an applicant. The Immigration Judge may then rely on the similarities between the evidence in the two different cases to make an adverse credibility finding, so long as the Court: 1) gives the applicant meaningful notice of the similarities that are considered to be significant; 2) gives the applicant a reasonable opportunity to explain the similarities; and 3) considers the totality of the circumstances when making the credibility finding.

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

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