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

Recent Published BIA Decisions:

Matter of Hernandez, 26 I&N Dec. 464 (BIA 2015); The Board held that in order for a crime to be considered a crime involving moral turpitude (CIMT) a criminal recklessness mens rea coupled with no actual physical harm was sufficient to meet the definition of a CIMT. The Board noted that in the CIMT context, no actual infliction of physical harm was necessary to rise to the level of “reprehensible conduct” required for a CIMT. It is enough that the potential risk of harm the statute penalizes is sufficiently serious. In the case at issue, the Texas statute penalized recklessly placing another person in “imminent danger of serious bodily harm.”

Matter of Esquivel-Quintana, 26 I&N Dec. 469 (BIA 2015); The Board held that in order for a consensual sex offense involving a 16 or 17-year old victim (statutory rape) to be considered “sexual abuse of a minor,” (an aggravated felony under INA § 101(a)(43)(A)), there must be a meaningful difference in age between the victim and the perpetrator. While the Board did not provide a definition os “meaningful difference in age,” they concluded that the more than three-year age difference required in the California statute at issue was sufficiently meaningful, and therefore the conviction was for an aggravated felony-sexual abuse of a minor.

Recent Relevant Published U.S. Court of Appeals for the Eleventh Circuit Decisions:

Perez v. USCIS et al., Docket Number 14-11084, Decided December 19, 2014; USCIS’s decision to deny an arriving alien Cuban’s application to adjust status under the Cuban Adjustment Act (CAA) is a final agency decision and is subject to judicial review. USCIS’s decision on an arriving alien’s application for adjustment under the CAA is not reviewable by the Immigration Judge, Board of Immigration Appeals or the AAO. Therefore the USCIS’s decision is the final agency decision and petitioner had exhausted his remedies before the agency. The Court also found that none of the statutory jurisdiction-stripping provisions applied to the USCIS’s decision regarding petitioner’s eligibility for adjustment under the CAA.

Kurapati v. USCIS et al., Docket Number 13-13554, Decided December 22, 2014 (On Petition for Rehearing-analysis relates to substance of rehearing only); The Eleventh Circuit found that it had jurisdiction to review an agency’s final discretionary decision, despite the jurisdiction-stripping provisions found in 8 U.S.C. s 1252(A)(2)(B)(ii), where petitioner alleges that the agency did not follow its own binding regulations in reaching the underlying decision.

Huang v. U.S. Att’y Gen., Docket Number 13-13285, Decided December 24, 2014; The court remanded the case to the BIA directing them to reconsider whether Mr. Huang suffered past persecution based upon the cumulative effect of both the physical harm he suffered and non-physical harm he endured that was unique to religious persecution (destruction of hisreligious materials and home church and attempt to make him abandon his religion). The Court noted that persecution based upon differing statutory grounds (political vs. religious) may required a different analysis of what harm is sufficient to rise to the level of persecution.

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