2000-2001 BIA Cases

Volume 23 BIA Cases | Volume 24

2005-2007 BIA casses

Matter of A-K, 24 I&N Dec. 275 (BIA 2007) (ID 3579)

An alien may not establish eligibility for asylum or withholding of
removal based solely on fear that his or her daughter will be harmed by
being forced to undergo female genital mutilation upon returning to the
alien’s home country.

Matter of CHAVEZ-Martinez, 24 I&N Dec. 272 (BIA 2007) (ID 3578)

(1) An alien seeking to reopen proceedings to establish that a
conviction has been vacated bears the burden of proving that the
conviction was not vacated solely for immigration purposes.

(2) Where the respondent presented no evidence to prove that his
conviction was not vacated solely for immigration purposes, he failed to
meet his burden of showing that his motion to reopen should be granted.

Matter of Jara RIERO and Jara ESPINOL, 24 I&N Dec. 267 (BIA 2007) (ID
3577)

An alien seeking to establish eligibility for adjustment of status under
section 245(i) of the Immigration and Nationality Act, 8 U.S.C. §
1255(i) (2000), on the basis of a marriage-based visa petition must
prove that the marriage was bona fide at its inception in order to show
that the visa petition was “meritorious in fact” pursuant to 8 C.F.R. §
1245.10(a)(3) (2007).

Matter of J-Y-C, 24 I&N Dec. 260 (BIA 2007) (ID 3576)

(1) Under section 101(a)(3) of the REAL ID Act of 2005, Div. B of Pub.
L. No. 109-13, 119 Stat. 302, 303 (to be codified at section
208(b)(1)(B)(iii) of the Immigration and Nationality Act, 8 U.S.C. §
1158(b)(1)(B)(iii)), a trier of fact may, considering the totality of
the circumstances, base a credibility finding on an asylum applicant’s
demeanor, the plausibility of his account, and inconsistencies in
statements, without regard to whether they go to the heart of the asylum
claim.

(2) The Immigration Judge properly considered the totality of the
circumstances in finding that the respondent lacked credibility based on
his demeanor, his implausible testimony, the lack of corroborating
evidence, and his inconsistent statements, some of which did not relate
to the heart of his claim.

Matter of S-Y-G-, 24 I&N Dec. 247 (BIA 2007) (ID 3575)

In her motion to reopen proceedings to pursue her asylum claim, the
applicant did not meet the heavy burden to show that her proffered
evidence is material and reflects “changed circumstances arising in the
country of nationality” to support the motion where the documents
submitted reflect general birth planning policies in her home province
that do not specifically show any likelihood that she or similarly
situated Chinese nationals will be persecuted as a result of the birth
of a second child in the United States.

Matter of SOLON, 24 I&N Dec. 239 (BIA 2007) (ID 3574)

The offense of assault in the third degree in violation of section
120.00(1) of the New York Penal Law, which requires both specific intent
and physical injury, is a crime involving moral turpitude.

Matter of SEJAS, 24 I&N Dec. 236 (BIA 2007) (ID 3573)

The offense of assault and battery against a family or household member
in violation of section 18.2-57.2 of the Virginia Code is not
categorically a crime involving moral turpitude.

Matter of ESCOBAR, 24 I&N Dec. 231 (BIA 2007) (ID 3572)

A parent’s lawful permanent resident status cannot be imputed to a child
for purposes of calculating the 5 years of lawful permanent residence
required to establish eligibility for cancellation of removal under
section 240A(a)(1) of the Immigration and Nationality Act, 8 U.S.C. §
1229b(a)(1) (2000).

Matter of R-D-, 24 I&N Dec. 221 (BIA 2007) (ID 3571)

(1) An alien who leaves the United States and is admitted to Canada to
seek refugee status has made a departure from the United States.

(2) An alien returning to the United States after the denial of an
application for refugee status in Canada is seeking admission into the
United States and is therefore an arriving alien under 8 C.F.R. §
1001.1(q) (2007).

Matter of GONZALEZ-SILVA, 24 I&N Dec. 218 (BIA 2007) (ID 3570)

An alien whose conviction precedes the effective date of section
237(a)(2)(E) of the Immigration and Nationality Act, 8 U.S.C. §
1227(a)(2)(E) (2000), is not “convicted of an offense under” that
section and therefore is not barred from establishing eligibility for
cancellation of removal by section 240A(b)(1)(C) of the Act, 8 U.S.C. §
1229b(b)(1)(C) (2000).

Matter of J-B-N- & S-M-, 24 I&N Dec. 208 (BIA 2007) (ID 3569)

Under section 101(a)(3) of the REAL ID Act of 2005, Div. B of Pub. L.
No. 109-13, 119 Stat. 302, 303, in mixed motive asylum cases, an
applicant must prove that race, religion, nationality, membership in a
particular social group, or political opinion was or will be at least
one central reason for the claimed persecution.

Matter of ABOSI, 24 I&N Dec. 204 (BIA 2007) (ID 3568)

A returning lawful permanent resident seeking to overcome a ground of
inadmissibility is not required to apply for adjustment of status in
conjunction with a waiver of inadmissibility under section 212(h) of the
Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2000).

Matter of J-H-S-, 24 I&N Dec. 196 (BIA 2007) (ID 3567)

A person who fathers or gives birth to two or more children in China may
qualify as a refugee if he or she establishes that the births are a
violation of family planning policies that would be punished by local
officials in a way that would give rise to a well-founded fear of
persecution.

Matter of J-W-S-, 24 I&N Dec. 185 (BIA 2007) (ID 3566)

(1) The evidence of record did not demonstrate that the Chinese
Government has a national policy of requiring forced sterilization of a
parent who returns with a second child born outside of China.

(2) Although some sanctions may be imposed pursuant to local family
planning policies in China for the birth of a second child abroad, the
applicant failed to provide evidence that such sanctions in Fujian
Province or Changle City would rise to the level of persecution.

Matter of GARCIA, 24 I&N Dec. 179 (BIA 2007) (ID 3565)

An application for special rule cancellation of removal is a continuing
one, so an applicant can continue to accrue physical presence until the
issuance of a final administrative decision. Matter of Ortega-Cabrera,
23 I&N Dec. 793 (BIA 2005), reaffirmed; Cuadra v. Gonzales, 417 F.3d 947
(8th Cir. 2005), followed in jurisdiction only.

Matter of T-Z-, 24 I&N Dec. 163 (BIA 2007) (ID 3564)

(1) An abortion is forced by threats of harm when a reasonable person
would objectively view the threats for refusing the abortion to be
genuine, and the threatened harm, if carried out, would rise to the
level of persecution.

(2) Nonphysical forms of harm, such as the deliberate imposition of
severe economic disadvantage or the deprivation of liberty, food,
housing, employment, or other essentials of life, may amount to
persecution.

(3) When an Immigration Judge denies asylum solely in the exercise of
discretion and then grants withholding of removal, 8 C.F.R. § 1208.16(e)
(2006) requires the Immigration Judge to reconsider the denial of asylum
to take into account factors relevant to family unification.

Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007) (ID 3563)

(1) In determining that an application for asylum is frivolous, the
Immigration Judge must address the question of frivolousness separately
and make specific findings that the applicant deliberately fabricated
material elements of the asylum claim.

(2) Before the Immigration Judge makes a finding that an asylum
application is frivolous, the applicant must be given sufficient
opportunity to account for any discrepancies or implausible aspects of
the claim.

(3) The Immigration Judge must provide cogent and convincing reasons for
determining that a preponderance of the evidence supports a
frivolousness finding, taking into account any explanations by the
applicant for discrepancies or implausible aspects of the claim.

Matter of TOBAR-LOBO, 24 I&N Dec. 143 (BIA 2007) (ID 3562)

Willful failure to register by a sex offender who has been previously
apprised of the obligation to register, in violation of section
290(g)(1) of the California Penal Code, is a crime involving moral
turpitude.

Matter of M-D-, 24 I&N Dec. 138 (BIA 2007) (ID 3561)

(1) When a case is remanded to an Immigration Judge for completion of
the appropriate background checks, the Immigration Judge is required to
enter a final order granting or denying the requested relief.

(2) Although an Immigration Judge may not reconsider the prior decision
of the Board of Immigration Appeals when a case is remanded for
background checks, the Immigration Judge reacquires jurisdiction over
the proceedings and may consider additional evidence regarding new or
previously considered relief if it meets the requirements for reopening
of the proceedings.

Matter of K-R-Y- and K-C-S-, 24 I&N Dec. 133 (BIA 2007) (ID 3560)

(1) The North Korean Human Rights Act of 2004, Pub. L. No. 108-333, 118
Stat. 1287, which provides that North Koreans cannot be barred from
eligibility for asylum on account of any legal right to citizenship they
may enjoy under the Constitution of South Korea, does not apply to North
Koreans who have availed themselves of the right to citizenship in South
Korea.

(2) The respondents, natives of North Korea who became citizens of South
Korea, are precluded from establishing eligibility for asylum as to
North Korea on the basis of their firm resettlement in South Korea.

Matter of KOCHLANI, 24 I&N Dec. 128 (BIA 2007) (ID 3559)

The offense of trafficking in counterfeit goods or services in violation
of 18 U.S.C. § 2320 (2000) is a crime involving moral turpitude.

Matter of KOTLIAR-, 24 I&N Dec. 124 (BIA 2007) (ID 3558)

(1) An alien who has been apprehended at home while on probation for
criminal convictions is subject to mandatory detention under section
236(c)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1226(c)(1)
(2000), regardless of the reason for the most recent criminal custody,
provided it can be ascertained from the facts that he was released from
criminal custody after October 8, 1998, the expiration date of the
Transition Period Custody Rules.

(2) An alien need not be charged with the ground that provides the basis
for mandatory detention under section 236(c)(1) of the Act in order to
be considered an alien who “is deportable” on that ground.

Matter of W-C-B-, 24 I&N Dec. 118 (BIA 2007) (ID 3557)

(1) An Immigration Judge has no authority to reinstate a prior order of
deportation or removal pursuant to section 241(a)(5) of the Immigration
and Nationality Act, 8 U.S.C. § 1231(a)(5) (2000).

(2) An alien subject to reinstatement of a prior order of deportation or
removal pursuant to section 241(a)(5) of the Act has no right to a
hearing before an Immigration Judge.

(3) The Immigration Judge did not err in terminating removal proceedings
as improvidently begun where the respondent was subject to reinstatement
of his prior order of deportation.

Matter of GERTSENSHTEYN, 24 I&N Dec. 111 (BIA 2007) (ID 3556)

(1) The categorical approach to determining whether a criminal offense
satisfies a particular ground of removal does not apply to the inquiry
whether a violation of 18 U.S.C. § 2422(a) was committed for “commercial
advantage” and thus qualifies as an aggravated felony under section
101(a)(43)(K)(ii) of the Immigration and Nationality Act, 8 U.S.C. §
1101(a)(43)(K)(ii) (2000), where “commercial advantage” is not an
element of the offense and the evidence relating to that issue is not
ordinarily likely to be found in the record of conviction.

(2) The respondent’s offense was committed for “commercial advantage”
where it was evident from the record of proceeding, including the
respondent’s testimony, that he knew that his employment activity was
designed to create a profit for the prostitution business for which he
worked.

Matter of ACOSTA HIDALGO, 24 I&N Dec. 103 (BIA 2007) (ID 3555)

(1) Because the Board of Immigration Appeals and the Immigration Judges
lack jurisdiction to adjudicate applications for naturalization, removal
proceedings may only be terminated pursuant to 8 C.F.R. § 1239.2(f)
(2006) where the Department of Homeland Security has presented an
affirmative communication attesting to an alien’s prima facie
eligibility for naturalization. Matter of Cruz, 15 I&N Dec. 236 (BIA
1975), reaffirmed.

(2) An adjudication by the Department of Homeland Security on the merits
of an alien’s naturalization application while removal proceedings are
pending is not an affirmative communication of the alien’s prima facie
eligibility for naturalization that would permit termination of
proceedings under 8 C.F.R. § 1239.2(f). (ID 3554)

Matter of William Osmin BARRIENTOS, 24 I&N Dec. 100 (BIA 2007)

Section 244(b)(5)(B) of the Immigration and Nationality Act, 8 U.S.C. §
1254(b)(5)(B) (2000), permits an alien to assert his right to Temporary
Protected Status in removal proceedings, even if his application has
previously been denied by the Administrative Appeals Unit.

Matter of Mahesh Nenumal TEJWANI, 24 I&N Dec. 97 (BIA 2007) (ID 3553)

The offense of money laundering in violation of section 470.10(1) of the
New York Penal Law is a crime involving moral turpitude.

Matter of Bozena ZMIJEWSKA, 24 I&N Dec. 87 (BIA 2007) (ID 3552)

(1) The Board of Immigration Appeals lacks authority to apply an
“exceptional circumstances” or other general equitable exception to the
penalty provisions for failure to depart within the time period afforded
for voluntary departure under section 240B(d)(1) of the Immigration and
Nationality Act, 8 U.S.C.A. § 1229c(d)(1) (West Supp. 2006).

(2) An alien has not voluntarily failed to depart the United States
under section 240B(d)(1) of the Act when the alien, through no fault of
his or her own, was unaware of the voluntary departure order or was
physically unable to depart within the time granted.

Matter of Rodolfo AVILA-PEREZ, 24 I&N Dec. 78 (BIA 2007) (ID 3551)

(1) Section 201(f)(1) of the Immigration and Nationality Act, 8 U.S.C. §
1151(f)(1) (Supp. II 2002), which allows the beneficiary of an immediate
relative visa petition to retain his status as a “child” after he turns
21, applies to an individual whose visa petition was approved before the
August 6, 2002, effective date of the Child Status Protection Act, Pub.
L. No. 107-208, 116 Stat. 927 (2002), but who filed an application for
adjustment of status after that date.

(2) The respondent, whose visa petition was approved before August 6,
2002, and who filed his adjustment of status application after that
date, retained his status as a child, and therefore an immediate
relative, because he was under the age of 21 when the visa petition was
filed on his behalf.

Matter of A-M-E & J-G-U-, 24 I&N Dec. 69 (BIA 2007) (ID 3550)

(1) Factors to be considered in determining whether a particular social
group exists include whether the group’s shared characteristic gives the
members the requisite social visibility to make them readily
identifiable in society and whether the group can be defined with
sufficient particularity to delimit its membership.

(2) The respondents failed to establish that their status as affluent
Guatemalans gave them sufficient social visibility to be perceived as a
group by society or that the group was defined with adequate
particularity to constitute a particular social group.

Matter of MONCADA-Servellon, 24 I&N Dec. 62 (BIA 2007) (ID 3549)

The exception to deportability under section 237(a)(2)(B)(i) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2000), for
an alien convicted of possessing 30 grams or less of marijuana for his
own use does not apply to an alien convicted under a statute that has an
element requiring that possession of the marijuana be in a prison or
other correctional setting.

Matter of O-S-G-, 24 I&N Dec. 56 (BIA 2006) (ID 3548)

A motion to reconsider a decision of the Board of Immigration Appeals
must include the following: (1) an allegation of material factual or
legal errors in the prior decision that is supported by pertinent
authority;(2) in the case of an affirmance without opinion (“AWO”), a
showing that the alleged errors and legal arguments were previously
raised on appeal and a statement explaining how the Board erred in
affirming the Immigration Judge’s decision under the AWO regulations;
(3) if there has been a change in law, a reference to the relevant
statute, regulation, or precedent and an explanation of how the outcome
of the Board’s decision is materially affected by the change.

Matter of TRUONG, 24 I&N Dec. 52 (BIA 2006) (ID 3547)

(1) Under the attorney discipline regulations, a disbarment order issued
against a practitioner creates a rebuttable presumption of professional
misconduct, which can only be rebutted by a showing that the underlying
disciplinary proceeding resulted in a deprivation of due process, that
there was an infirmity of proof establishing the misconduct, or that
discipline would result in grave injustice.

(2) Where the respondent was disbarred by the highest court of the State
of New York, based in large part on his misconduct in a State court
action, and where none of the exceptions to discipline are applicable,
suspension from practice before the Board of Immigration Appeals, the
Immigration Courts, and the Department of Homeland Security for 7 years
is an appropriate sanction.

Matter of S-B-, 24 I&N Dec. 42 (BIA 2006) (ID 3545)

(1) The provisions regarding credibility determinations enacted in
section 101(a)(3) of the REAL ID Act of 2005, Div. B of Pub. L. No.
109-13, 119 Stat. 231, 303 (effective May 11, 2005) (to be codified at
section 208(b)(1)(B)(iii) of the Immigration and Nationality Act, 8
U.S.C. § 1158(b)(1)(B)(iii)), only apply to applications for asylum,
withholding, and other relief from removal that were initially filed on
or after May 11, 2005, whether with an asylum officer or an Immigration
Judge.

(2) Where the respondent filed his applications for relief with an
asylum officer prior to the May 11, 2005, effective date of section
208(b)(1)(B)(iii) of the Act, but renewed his applications in removal
proceedings before an Immigration Judge subsequent to that date, the
provisions of section 208(b)(1)(B)(iii) were not applicable to
credibility determinations made in adjudicating his applications.

Matter of GUERRA, 24 I&N Dec. 37 (BIA 2006) (ID 3544)

(1) In a custody redetermination under section 236(a) of the Immigration
and Nationality Act, 8 U.S.C. § 1226(a) (2000), where an alien must
establish to the satisfaction of the Immigration Judge that he or she
does not present a danger to others, a threat to the national security,
or a flight risk, the Immigration Judge has wide discretion in deciding
the factors that may be considered.

(2) In finding that the respondent is a danger to others, the
Immigration Judge properly considered evidence that the respondent had
been criminally charged in an alleged controlled substance trafficking
scheme, even if he had not actually been convicted of a criminal
offense.

Matter of JURADO, 24 I&N Dec. 29 (BIA 2006) (ID 3543)

(1) An alien need not be charged and found inadmissible or removable on
a ground specified in section 240A(d)(1)(B) of the Immigration and
Nationality Act, 8 U.S.C. § 1229b(d)(1)(B) (2000), in order for the
alleged criminal conduct to terminate the alien’s continuous residence
in this country.

(2) Retail theft in violation of title18, section 3929(a)(1) of the
Pennsylvania Consolidated Statutes is a crime involving moral turpitude.

(3) Unsworn falsification to authorities in violation of title18,
section 4904(a) of the Pennsylvania Consolidated Statutes is a crime
involving moral turpitude.

Matter of ROBLES, 24 I&N Dec. 22 (BIA 2006) (ID 3542)

(1) When the Attorney General overrules or reverses only one holding in
a precedent decision of the Board of Immigration Appeals and expressly
declines to consider any alternative holding in the case, the remaining
holdings retain their precedential value.

(2) Misprision of a felony in violation of 18 U.S.C. § 4 (2000) is a
crime involving moral turpitude. Matter of Sloan, 12 I&N Dec. 840 (A.G.
1968; BIA 1966), overruled in part.

(3) Under the “stop-time” rule in section 240A(d)(1)(B) of the
Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1)(B) (2000), an
offense is deemed to end an alien’s continuous residence as of the date
of its commission, even if the offense was committed prior to the
enactment of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546.
Matter of Perez, 22 I&N Dec. 689 (BIA 1999), reaffirmed. (ID 3541)

Matter of S-L-L-, 24 I&N Dec. 1 (BIA 2006)

(1) An alien whose spouse was forced to undergo an abortion or
sterilization can establish past persecution on account of political
opinion and qualify as a refugee within the definition of section
101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. §
1101(a)(42) (2000), but only if the alien was, in fact, opposed to the
spouse’s abortion or sterilization and was legally married at the time
of the abortion or sterilization. Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA
1997), reaffirmed and clarified.

(2) Unmarried applicants claiming persecution related to a partner’s
coerced abortion or sterilization may qualify for asylum if they
demonstrate that they have been persecuted for “other resistance to a
coercive population control program” within the meaning of section
101(a)(42) of the Act.

Matter of DIAZ-RUACHO, 24 I&N Dec. 47 (BIA 2006) ID 3546

An alien who fails to post the voluntary departure bond required by
section 240B(b)(3)of the Immigration and Nationality Act, 8 U.S.C. §
1229c(b)(3) (2000), is not subject to penalties for failure to depart
within the time period specified for voluntary departure.

LIADOV, 23 I&N Dec. 990 (BIA 2006) (ID 3540)

(1) Neither the Immigration and Nationality Act nor the regulations
grant the Board of Immigration Appeals authority to extend the 30-day
time limit for filing an appeal to the Board.

(2) Although the Board may certify a case to itself under 8 C.F.R. §
1003.1(c) (2006) where exceptional circumstances are present, a short
delay by an overnight delivery service is not a rare or extraordinary
event that would warrant consideration of an untimely appeal on
certification.

Guang Li FU, 23 I&N Dec. 985 (BIA 2006) (ID 3539)

Section 237(a)(1)(H) of the Immigration and Nationality Act, 8 U.S.C. §
1227(a)(1)(H)(2000), authorizes a waiver of removability under section
237(a)(1)(A) based on charges of inadmissibility at the time of
admission under section 212(a)(7)(A)(i)(I) of the Act, 8 U.S.C. §
1182(a)(7)(A)(i)(I) (2000), for lack of a valid immigrant visa or entry
document, as well as under section 212(a)(6)(C)(i) for fraud or willful
misrepresentation of a material fact, where there was a
misrepresentation made at the time of admission, whether innocent or not

O’CEALLEAGH, 23 I&N Dec. 976 (BIA 2006) (ID 3538)

(1) In order for an offense to qualify for the “purely political
offense” exception to the ground of inadmissibility under section
212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. §
1182(a)(2)(A)(i)(I) (2000), based on an alien’s conviction for a crime
involving moral turpitude, the offense must be completely or totally
“political.”

(2) The respondent is inadmissible where he properly conceded that his
offense, substantively regarded, was not “purely political,” and where
there was substantial evidence that the offense was not fabricated or
trumped-up and therefore did not qualify from a procedural perspective
as a “purely political offense,” because the circumstances surrounding
his conviction in Northern Ireland for aiding and abetting the murder of
two British corporals reflected a sincere effort to prosecute real
lawbreakers.

SANUDO, 23 I&N Dec. 968 (BIA 2006) (ID 3537)

(1) An alien’s conviction for domestic battery in violation of sections
242 and 243(e)(1) of the California Penal Code does not qualify
categorically as a conviction for a “crime involving moral turpitude”
within the meaning of section 237(a)(2)(A)(ii) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(ii) (2000).

(2) In removal proceedings arising within the jurisdiction of the United
States Court of Appeals for the Ninth Circuit, the offense of domestic
battery in violation of sections 242 and 243(e)(1) of the California
Penal Code does not presently qualify categorically as a “crime of
violence” under 18 U.S.C. § 16 (2000), such that it may be considered a
“crime of domestic violence” under section 237(a)(2)(E)(i) of the Act.
Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006), followed.

ROWE, 23 I&N Dec. 962 (BIA 2006) (ID 3536)

(1) Under the laws of Guyana, the sole means of legitimation of a child
born out of wedlock is the marriage of the child’s natural parents.
Matter of Goorahoo, 20 I&N Dec. 782 (BIA 1994), overruled.

(2) Where the respondent was born out of wedlock in Guyana and his
natural parents were never married, his paternity has not been
established by legitimation, so he is not ineligible to obtain
derivative citizenship under former section 321(a)(3) of the Immigration
and Nationality Act, 8 U.S.C. § 1432(a)(3) (1994).

C-A-, as 23 I&N Dec. 951 (BIA 2006) (ID 3535)

(1) The members of a particular social group must share a common,
immutable characteristic, which may be an innate one, such as sex,
color, or kinship ties, or a shared past experience, such as former
military leadership or land ownership, but it must be one that members
of the group either cannot change, or should not be required to change,
because it is fundamental to their individual identities or consciences.
Matter of Acosta, 19 I&N Dec. 211(BIA 1985), followed.

(2) The social visibility of the members of a claimed social group is an
important consideration in identifying the existence of a “particular
social group” for the purpose of determining whether a person qualifies
as a refugee.

(3) The group of “former noncriminal drug informants working against the
Cali drug cartel” does not have the requisite social visibility to
constitute a “particular social group.”

S-K-, as 23 I&N Dec. 936 (BIA 2006) (ID 3534)

(1) The statutory language of section 212(a)(3)(B) of the Immigration
and Nationality Act, 8 U.S.C.A. § 1182(a)(3)(B) (West 2005), does not
allow a “totality of the circumstances” test to be employed in
determining whether an organization is engaged in terrorist activity, so
factors such as an organization’s purposes or goals and the nature of
the regime that the organization opposes may not be considered.

(2) Neither an alien’s intent in making a donation to a terrorist
organization nor the intended use of the donation by the recipient is
considered in assessing whether the alien provided “material support” to
a terrorist organization under section 212(a)(3)(B)(iv)(VI) of the Act.

(3) The respondent’s contribution of S$1100 (Singapore dollars) over an
11-month period to the Chin National Front was sufficiently substantial
to constitute material support to an organization, which despite its
democratic goals and use of force only in self-defense, is defined by
statute as a terrorist organization acting against the Government of
Burma, so the respondent is barred from asylum and withholding of
removal.

Jian An WANG, as 23 I&N Dec. 924 (BIA 2006) (ID 3533)

(1) An alien who entered the United States without inspection is not
eligible for adjustment of status under the Chinese Student Protection
Act of 1992, Pub. L. No. 102-404, 106 Stat. 1969 (“CSPA”).

(2) An alien whose CSPA application for adjustment of status was denied
as a result of the alien’s entry without inspection may not amend or
renew the application in immigration proceedings in conjunction with
section 245(i) of the Immigration and Nationality Act, 8 U.S.C. §
1255(i) (2000).

J-F-F-, 23 I&N Dec. 912 (BIA 2006) (ID 3532)

An alien’s eligibility for deferral of removal under the Convention
Against Torture cannot be established by stringing together a series of
suppositions to show that it is more likely than not that torture will
result where the evidence does not establish that each step in the
hypothetical chain of events is more likely than not to happen.

Raul RODARTE-Roman, 23 I&N Dec. 905 (BIA 2006) (ID 3531)

(1) To be rendered inadmissible for 10 years pursuant to section
212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. §
1182(a)(9)(B)(i)(II) (2000), an alien must depart the United States
after having been unlawfully present in the United States for 1 year or
longer.

(2) Pursuant to sections 301(b)(3) and 309(a) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L.
No. 104-208, 110 Stat. 3009-546, 3009-578, 309-625, no period of an
alien’s presence in the United States prior to April 1, 1997, may be
considered “unlawful presence” for purposes of determining an alien’s
inadmissibility under section 212(a)(9)(B) of the Act.

C-C-, 23 I&N Dec. 899 (BIA 2006) (ID 3530)

An alien seeking to reopen removal proceedings based on a claim that the
birth of a second child in the United States will result in the alien’s
forced sterilization in China cannot establish prima facie eligibility
for relief where the evidence submitted with the motion and the relevant
country conditions reports do not indicate that Chinese nationals
returning to that country with foreign-born children have been subjected
to forced sterilization in the alien’s home province. Guo v. Ashcroft,
386 F.3d 556 (3d Cir. 2004), distinguished.

Jose Luis OLQUIN-Rufino, 23 I&N Dec. 896 (BIA 2006) (ID 3529)

The offense of possession of child pornography in violation of section
827.071(5) of the Florida Statutes is a crime involving moral turpitude.

Alma Esmeralda BAUTISTA GOMEZ, 23 I&N Dec. 893 (BIA 2006) (ID 3528)

The provision in 8 C.F.R. § 1003.23(b)(3) (2005) that an applicant for
cancellation of removal under section 240A(b) of the Immigration and
Nationality Act, 8 U.S.C. § 1229b(b) (2000), must demonstrate statutory
eligibility for that relief prior to the service of a notice to appear
applies only to the continuous physical presence requirement and has no
bearing on the issues of qualifying relatives, hardship, or good moral
character.

Francisco Javier VILLARREAL-ZUNIGA, 23 I&N Dec. 886 (BIA 2006) (ID 3527)

An application for adjustment of status cannot be based on an approved
visa petition that has already been used by the beneficiary to obtain
adjustment of status or admission as an immigrant.

Fabricio ALCANTARA-PEREZ, 23 I&N Dec. 882 (BIA 2006) (ID 3526)

(1) When the Board of Immigration Appeals has remanded the record for
completion of background and security checks and new information that
may affect the alien’s eligibility for relief is revealed, the
Immigration Judge has discretion to determine whether to conduct an
additional hearing to consider the new evidence before entering an order
granting or denying relief.

(2) When a proceeding is remanded for background and security checks,
but no new information is presented as a result of those checks, the
Immigration Judge should enter an order granting relief.

Patryk Michal ADAMIAK, 23 I&N Dec. 878 (BIA 2006) (ID 3525)

A conviction vacated pursuant to section 2943.031 of the Ohio Revised
Code for failure of the trial court to advise the alien defendant of the
possible immigration consequences of a guilty plea is no longer a valid
conviction for immigration purposes.

TORRES-GARCIA, 23 I&N Dec. 866 (BIA 2006) (ID 3524)

(1) An alien who reenters the United States without admission after
having previously been removed is inadmissible under section
212(a)(9)(C)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. §
1182(a)(9)(C)(i)(II) (2000), even if the alien obtained the Attorney
General’s permission to reapply for admission prior to reentering
unlawfully.

(2) An alien is statutorily ineligible for a waiver of inadmissibility
under the first sentence of section 212(a)(9)(C)(ii) of the Act unless
more than 10 years have elapsed since the date of the alien’s last
departure from the United States.

V-F-D-, 23 I&N Dec. 859 (BIA 2006) (ID 3523)

A victim of sexual abuse who is under the age of 18 is a “minor” for
purposes of determining whether an alien has been convicted of sexual
abuse of a minor within the meaning of section 101(a)(43)(A) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2000).

COTA-Vargas, 23 I&N Dec. 849 (BIA 2005) (ID 3522)

A trial court’s decision to modify or reduce an alien’s criminal
sentence nunc pro tunc is entitled to full faith and credit by the
Immigration Judges and the Board of Immigration Appeals, and such a
modified or reduced sentence is recognized as valid for purposes of the
immigration law without regard to the trial court’s reasons for
effecting the modification or reduction. Matter of Song, 23 I&N Dec. 173
(BIA 2001), clarified; Matter of Pickering, 23 I&N Dec. 621 (BIA 2003),
distinguished. (ID 3521)

Ramos, 23 I&N Dec. 843 (BIA 2005)

(1) Under the attorney discipline regulations, a disbarment order issued
against a practitioner by the highest court of a State creates a
rebuttable presumption that disciplinary sanctions should follow, which
can only be rebutted upon a showing that the underlying disciplinary
proceeding resulted in a deprivation of due process, that there was an
infirmity of proof establishing the misconduct, or that discipline would
result in injustice.

(2) A practitioner who has been expelled may petition the Board of
Immigration Appeals for reinstatement after 1 year, but such
reinstatement is not automatic and the practitioner must qualify as an
attorney or representative under the regulations.

(3) The Government is not required to show that an attorney has
“appeared” before it, because any attorney is a “practitioner” and is
therefore subject to sanctions under the attorney discipline regulations
following disbarment.

(4) Where the respondent was disbarred by the Supreme Court of Florida
as a result of his extensive unethical conduct, expulsion from practice
before the Board, the Immigration Courts, and the Department of Homeland
Security is an appropriate sanction.

SMRIKO, 23 I&N Dec. 836 (BIA 2005) (ID 3520)

(1) Removal proceedings may be commenced against an alien who was
admitted to the United States as a refugee under section 207 of the
Immigration and Nationality Act, 8 U.S.C. § 1157 (2000), without prior
termination of the alien’s refugee status.

(2) The respondent, who was admitted to the Unites States as a refugee
and adjusted his status to that of a lawful permanent resident, is
subject to removal on the basis of his convictions for crimes involving
moral turpitude, even though his refugee status was never terminated.

PEREZ VARGAS, 23 I&N Dec. 829 (BIA 2005) (ID 3519)

Immigration Judges have no authority to determine whether the validity
of an alien’s approved employment-based visa petition is preserved under
section 204(j) of the Immigration and Nationality Act, 8 U.S.C. §
1154(j) (2000), after the alien’s change in jobs or employers.

Matter of E-L-H-, 23 I&N Dec. 814 (BIA 2005) (ID3518)

A precedent decision of the Board of Immigration Appeals applies to all
proceedings involving the same issue unless and until it is modified or
overruled by the Attorney General, the Board, Congress, or a Federal
court. Matter of E-L-H-, 22 I&N Dec. 21 (BIA 1998), reaffirmed.

AVILEZ-Nava, 23 I&N Dec. 799 (BIA 2005) (ID 3517)

(1) Where an alien departed the United States for a period less than
that specified in section 240A(d)(2) of the Immigration and Nationality
Act, 8 U.S.C. § 1229b(d)(2)(2000), and unsuccessfully attempted reentry
at a land border port of entry before actually reentering, physical
presence continued to accrue for purposes of cancellation of removal
under section 240A(b)(1)(A) unless, during that attempted reentry, the
alien was formally excluded or made subject to an order of expedited
removal, was offered and accepted the opportunity to withdraw an
application for admission, or was subjected to some other formal,
documented process pursuant to which the alien was determined to be
inadmissible to the United States.

(2) The respondent’s 2-week absence from the United States did not break
her continuous physical presence where she was refused admission by an
immigration official at a port of entry, returned to Mexico without any
threat of the institution of exclusion proceedings, and subsequently
reentered without inspection.

ORTEGA-Cabrera, 23 I&N Dec. 793 (BIA 2005) (ID 3516)

(1) Because an application for cancellation of removal under section
240A(b)(1) of the Immigration and Nationality Act, 8 U.S.C. §
1229b(b)(1) (2000), is a continuing one for purposes of evaluating an
alien’s moral character, the period during which good moral character
must be established ends with the entry of a final administrative
decision by the Immigration Judge or the Board of Immigration Appeals.

(2) To establish eligibility for cancellation of removal under section
240A(b)(1) of the Act, an alien must show good moral character for a
period of 10 years, which is calculated backward from the date on which
the application is finally resolved by the Immigration Judge or the
Board.

Matter of A-H-,23 I&N Dec. 774 (A.G. 2005) (ID3515)

(1) The Attorney General denied asylum in the exercise of discretion to
a leader-in-exile of the Islamic Salvation Front of Algeria who was
associated with armed groups that committed widespread acts of
persecution and terrorism in Algeria, because the United States has
significant interests in combating violent acts of persecution and
terrorism, and it is inconsistent with these interests to provide safe
haven to individuals who have connections to such acts of violence.

(2) Terrorist acts committed by the armed Islamist groups in Algeria,
including the bombing of civilian targets and the widespread murders of
journalists and intellectuals on account of their political opinions or
religious beliefs, constitute the persecution of others.

(3) A person who is a leader-in-exile of a political movement may be
found to have “incited, assisted, or otherwise participated in” acts of
persecution in the home country by an armed group connected to that
political movement where there is evidence indicating that the leader
(1) was instrumental in creating and sustaining the ties between the
political movement and the armed group and was aware of the atrocities
committed by the armed group; (2) used his profile and position of
influence to make public statements that encouraged those atrocities; or
(3) made statements that appear to have condoned the persecution without
publicly and specifically disassociating himself and his movement from
the acts of persecution, particularly if his statements appear to have
resulted in an increase in the persecution.

(4) The phrase “danger to the security of the United States” means any
nontrivial risk to the Nation’s defense, foreign relations, or economic
interests, and there are “reasonable grounds for regarding” an alien as
a danger to the national security where there is information that would
permit a reasonable person to believe that the alien may pose such a
danger.

(5) The Attorney General remanded the record for further consideration
by the Board of Immigration Appeals of the questions whether (1) there
is sufficient evidence to indicate that the respondent “incited,
assisted, or otherwise participated in the persecution” of others; (2)
deference should be given to the credibility findings of the Immigration
Judge; (3) there are “reasonable grounds for regarding [the respondent]
as a danger to the security of the United States”; (4) the respondent
presently faces a threat to his life or freedom if removed to Algeria;
and (5) the respondent presently faces a likelihood of being tortured in
Algeria.

Matter of BRIEVA, 23 I&N Dec. 766 (BIA 2005) (ID 3514)

(1) The offense of unauthorized use of a motor vehicle in violation of
section 31.07(a) of the Texas Penal Code is a crime of violence under 18
U.S.C. § 16(b) (2000) and is therefore an aggravated felony under
section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. §
1101(a)(43)(F) (2000).

(2) An alien who is removable on the basis of his conviction for a crime
of violence is ineligible for a waiver under former section 212(c) of
the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), because
the aggravated felony ground of removal with which he was charged has no
statutory counterpart in the grounds of inadmissibility under section
212(a) of the Act, 8 U.S.C. § 1182(a) (2000).

Matter of SHANU, 23 I&N Dec. 754 (BIA 2005) (ID 3513)

(1) The phrase “date of admission” in section 237(a)(2)(A)(i) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2000),
refers to, among other things, the date on which a previously admitted
alien is lawfully admitted for permanent residence by means of
adjustment of status.

(2) An alien convicted of a single crime involving moral turpitude that
is punishable by a term of imprisonment of at least 1 year is removable
from the United States under section 237(a)(2)(A)(i) of the Act if the
crime was committed within 5 years after the date of any admission made
by the alien, whether it be the first or any subsequent admission.

Matter of Lovo, 23 I&N Dec. 746 (BIA 2005) (ID 3512)

(1) The Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419
(1996), does not preclude, for purposes of Federal law, recognition of a
marriage involving a postoperative transsexual, where the marriage is
considered by the State in which it was performed as one between two
individuals of the opposite sex.

(2) A marriage between a postoperative transsexual and a person of the
opposite sex may be the basis for benefits under section 201(b)(2)(A)(i)
of the Immigration and Nationality Act, 8 U.S.C. § 1151(b)(2)(A)(i)
(2000), where the State in which the marriage occurred recognizes the
change in sex of the postoperative transsexual and considers the
marriage a valid heterosexual marriage.

Matter of A-M-, 23 I&N Dec. 737 (BIA 2005) (ID 3511)

(1) Absent specific reasons for reducing the period of voluntary
departure initially granted by the Immigration Judge at the conclusion
of removal proceedings, the Board of Immigration Appeals will reinstate
the same period of time for voluntary departure afforded to the alien by
the Immigration Judge. Matter of Chouliaris, 16 I&N Dec. 168 (BIA 1977),
modified.

(2) The respondent, whose asylum application was not filed within a year
of his arrival in the United States, failed to demonstrate his
eligibility for an exception to the filing deadline or for any other
relief based on his claim of persecution in Indonesia, but the 60-day
period of voluntary departure granted to him by the Immigration Judge
was reinstated.

Mattr of X-K-, 23 I&N Dec. 731 (BIA 2005) (ID 3510)

An alien who is initially screened for expedited removal under section
235(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. §
1225(b)(1)(A) (2000), as a member of the class of aliens designated
pursuant to the authority in section 235(b)(1)(A)(iii), but who is
subsequently placed in removal proceedings under section 240 of the Act,
8 U.S.C. § 1229a 2000), following a positive credible fear
determination, is eligible for a custody redetermination hearing before
an Immigration Judge unless the alien is a member of any of the listed
classes of aliens who are specifically excluded from the custody
jurisdiction of Immigration Judges pursuant to 8 C.F.R. §
1003.19(h)(2)(i) (2004).

Matter of BLAKE; 23 I&N Dec.722 (BIA 2005) (ID 3509)

An alien who is removable on the basis of his conviction for sexual
abuse of a minor is ineligible for a waiver under former section 212(c)
of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994),
because the aggravated felony ground of removal with which he was
charged has no statutory counterpart in the grounds of inadmissibility
under section 212(a) of the Act, 8 U.S.C. § 1182(a) (2000). Matter of
Meza, 20 I&N Dec. 257 (BIA 1991), distinguished.

Matter of LUVIANO-Rodriguez, 23 I&N Dec. 718 (A.G. 2005) (ID 3508)

An alien whose firearms conviction was expunged pursuant to section
1203.4 of the California Penal Code has been “convicted” for immigration
purposes. Matter of Marroquin, 23 I&N Dec. 705 (A.G. 2005), followed.

Matter of MARROQUIN-Garcia, 23 I&N Dec. 705 (A.G. 2005) (ID 3507)

(1) The federal definition of “conviction” at section 101(a)(48)(A) of
the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2000),
encompasses convictions, other than those involving first-time simple
possession of narcotics, that have been vacated or set aside pursuant to
an expungement statute for reasons that do not go to the legal propriety
of the original judgment, and that continue to impose some restraints or
penalties upon the defendant’s liberty.

(2) An alien whose firearms conviction was expunged pursuant to section
1203.4 of the California Penal Code has been “convicted” for immigration
purposes.

Matter of AZURIN; 23 I&N Dec. 695 (BIA 2005) (ID 3505)

An alien who, prior to the 1996 amendments made to former section 212(c)
of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), pled
guilty to an offense that rendered him inadmissible as an alien
convicted of a crime involving moral turpitude, as well as removable
based on his conviction for an aggravated felony and a firearms offense,
may seek a waiver of his inadmissibility under section 212(c) in
conjunction with an application for adjustment of status, despite
regulatory changes relating to the availability of section 212(c)
relief. Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993), reaffirmed.

(ID 3503) Matter of C-Y-Z-, 23 I&N Dec. 693 (A.G. 2004)

The Attorney General denied the request of the Commissioner of the
Immigration and Naturalization Service to certify for review the
decision of the Board of Immigration Appeals.

(ID 3502) Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004)

An alien found guilty of a “violation” under Oregon law in a proceeding
conducted pursuant to section 153.076 of the Oregon Revised Statutes
does not have a “conviction” for immigration purposes under section
101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. §
1101(a)(48)(A) (2000).

(ID 3501) Matter of L-K-, 23 I&N Dec. 677 (BIA 2004)

(1) Under section 245(c)(2) of the Immigration and Nationality Act, 8
U.S.C. § 1255(c)(2) (2000), an alien who has failed to continuously
maintain a lawful status since entry into the United States, other than
through no fault of his own or for technical reasons, is ineligible for
adjustment of status under section 245(a) of the Act.

(2) A failure to maintain lawful status is not “for technical reasons”
within the meaning of section 245(c)(2) of the Act and the applicable
regulations at 8 C.F.R. § 1245.1(d)(2)(ii) (2004), where the alien filed
an asylum application while in lawful nonimmigrant status, the
nonimmigrant status subsequently expired, and the asylum application was
referred to the Immigration Court prior to the time the alien applied
for adjustment of status.

(ID 3500) Matter of Cisneros-Gonzalez, 23 I&N Dec. 668

(1) Pursuant to section 240A(d)(1) of the Immigration and Nationality
Act, 8 U.S.C. § 1229b(d)(1) (2000), an alien’s period of continuous
physical presence in the United States is deemed to end when the alien
is served with the charging document that is the basis for the current
proceeding.

(2) Service of a charging document in a prior proceeding does not serve
to end the alien’s period of continuous physical presence with respect
to an application for cancellation ofremoval filed in the current
proceeding. Matter of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000),
distinguished.

(ID 3499) Matter of K-A-, 23 I&N Dec. 661 (BIA 2004)

(1) Pursuant to 8 C.F.R. § 1209.2(c) (2004), once an asylee has been
placed in removal proceedings, the Immigration Judge and the Board of
Immigration Appeals have exclusive jurisdiction to adjudicate the
asylee’s applications for adjustment of status and a waiver of
inadmissibility under sections 209(b) and (c) of the Immigration and
Nationality Act, 8 U.S.C. §§ 1159(b) and (c) (2000). Matter of H-N-, 22
I&N Dec. 1039 (BIA 1999), distinguished.

(2) Termination of a grant of asylum pursuant to section 208(c)(2) of
the Act, 8 U.S.C. § 1158(c)(2) (2000), is not mandatory with respect to
an asylee who qualifies for and merits adjustment of status and a waiver
of inadmissibility under sections 209(b) and (c) of the Act.

(ID 3498) Matter of Malta, 23 I & N Dec. 23 I&N Dec. 656 (BIA 2004)

A stalking offense for harassing conduct in violation of section
646.9(b) of the California Penal Code, which proscribes stalking when
there is a temporary restraining order, injunction, or any other court
order in effect prohibiting the stalking behavior, is a crime of
violence under 18 U.S.C. § 16(b) (2000), and is therefore an aggravated
felony under section 101(a)(43)(F) of the Immigration and Nationality
Act, 8 U.S.C. § 1101(a)(43)(F) (2000).

(ID 3497) Matter of Vargas, 23 I&N Dec. 651 (BIA 2004)

The offense of manslaughter in the first degree in violation of section
125.20 of the New York Penal Law is a crime of violence under 18 U.S.C.
§ 18(b) (2000) and is therefore an aggravated felony under section
101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. §
1101(a)(43)(F) (2000).

(ID 3496) Matter of Gadda, 23 I&N Dec. 645 (BIA 2003)

(1) An attorney who practices immigration law in proceedings before the
Board of Immigration Appeals, the Immigration Courts, and the Department
of Homeland Security must be a member in good standing of a State bar
and is therefore subject to discipline by State bar authorities.

(2) The Board of Immigration Appeals has authority to increase the level
of disciplinary sanction initially imposed by an adjudicating official
against an attorney.

(3) Where the respondent was disbarred by the Supreme Court of
California based on his egregious and repeated acts of professional
misconduct over a number of years, expulsion from practice before the
Board of Immigration Appeals, the Immigration Courts, and the Department
of Homeland Security is an appropriate sanction.

(ID 3495) Matter of R-S-H-, 23 I & N 629 (BIA 2003)

(1) Under 8 C.F.R. § 1003.46(i) (formerly 8 C.F.R. § 3.46(i)), the
mandatory consequence for violating a protective order is that the
respondent becomes ineligible for any form of discretionary relief,
except for bond.

(2) The mandatory consequence for breaching a protective order will be
applied unless a respondent fully cooperates with the Government in any
investigation relating to the noncompliance and, additionally,
establishes by clear and convincing evidence either that extraordinary
and extremely unusual circumstances exist or that failure to comply with
the protective order was beyond the control of the respondent and his or
her attorney or accredited representative.

(3) The presence of federal employees, including court personnel or
Department of Justice attorneys, at a closed hearing where a protective
order is discussed does not violate the protective order regulations.

(4) The respondent is ineligible for any form of discretionary relief,
except for bond, because a protective order issued by the Immigration
Judge was violated by disclosure of protected information to
unauthorized persons.

Matter of Jung Tae SUH, 23 I&N Dec. 626 (BIA 2003) Decided July 1, 2003

(1) A presidential or gubernatorial pardon waives only the grounds of
removal specifically set forth in section 237(a)(2)(A)(v) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(v) (2000), and
no implicit waivers may be read into the statute.

(2) The respondent’s pardon did not waive his removability as an alien
convicted of a crime of domestic violence or child abuse under section
237(a)(2)(E)(i) of the Act, because that section is not specifically
included in section 237(a)(2)(A)(v).

Section 237(a)(2)(A)(v) of the Act specifies the effect of a
presidential or gubernatorial pardon on certain grounds of removability.
It states that “[c]lauses (i), (ii), (iii), and (iv)” of section
237(a)(2)(A) “shall not apply” where such a pardon has been granted. It
thereby provides for an automatic waiver of removability where a pardon
has been granted for (i) crimes of moral turpitude, (ii) multiple
criminal convictions, (iii) aggravated felonies, and (iv) certain high
speed flight convictions. There is no comparable provision regarding
pardons that would cover convictions for other offenses that render an
alien removable, such as acts of domestic violence or child abuse
pursuant to section 237(a)(2)(E)(i), under which the respondent was
charged. Other removable offenses, such as controlled substance
violations under section 237(a)(2)(B), certain firearm offenses under
section 237(a)(2)(C), and violations of protection orders under section
237(a)(2)(E)(ii), are similarly not covered by the pardon waiver of
section 237(a)(2)(A)(v) of the Act.

Matter of PICKERING, 23 I&N Dec. 621 (BIA 2003) Decided June 11, 2003

(1) If a court vacates an alien’s conviction for reasons solely related
to rehabilitation or immigration hardships, rather than on the basis of
a procedural or substantive defect in the underlying criminal
proceedings, the conviction is not eliminated for immigration
purposes.

(2) Where the record indicated that the respondent’s conviction for
possession of a controlled substance was quashed by a Canadian court for
the sole purpose of avoiding the bar to his acquisition of
permanent residence, the court’s action was not effective to
eliminate the conviction for immigration purposes.

In re Y-T-L-, 23 I&N Dec. 601 (BIA 2003) Decided May 22, 2003

Where an alien has established past persecution based on the forced
sterilization of his spouse pursuant to a policy of coercive family
planning, the fact that, owing to such sterilization, the alien and his
spouse face no further threat of forced sterilization or abortion does
not constitute a “fundamental change” in circumstances sufficient to
meet the standards for a discretionary denial under 8 C.F.R. §
1208.13(b)(1)(i)(A).

In re Jose Abraham DEANDA-ROMO, 23 I&N Dec. 597 (BIA 2003) Decided May
8, 2003

The respondent, who was convicted of two misdemeanor crimes involving
moral turpitude, is not precluded by the provisions of section
240A(d)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. §
1229b(d)(1)(B) (2000), from establishing the requisite 7 years of
continuous residence for cancellation of removal under section
240A(a)(2), because his first crime, which qualifies as a petty offense,
did not render him inadmissible, and he had accrued the requisite 7
years of continuous residence before the second offense was committed.

In re Fidel GARCIA-HERNANDEZ, 23 I&N Dec. 590 (BIA 2003) Decided May 8,
2003

(1) An alien who has been convicted of a crime involving moral turpitude
that falls within the “petty offense” exception in section
212(a)(2)(A)(ii)(II) of the Immigration and Nationality Act, 8 U.S.C. §
1182(a)(2)(A)(ii)(II) (1994), is not ineligible for cancellation of
removal under section 240A(b)(1)(C) of the Act, 8 U.S.C. §
1229b(b)(1)(C) (Supp. IV 1998), because he “has not been convicted of an
offense under section 212(a)(2)” of the Act.

(2) An alien who has committed a crime involving moral turpitude that
falls within the “petty offense” exception is not ineligible for
cancellation of removal under section 240A(b)(1)(B) of the Act, because
commission of a petty offense does not bar the offender from
establishing good moral character under section 101(f)(3) of the Act, 8
U.S.C. § 1101(f)(3) (Supp. IV 1998).

(3) An alien who has committed more than one petty offense is not
ineligible for the “petty offense” exception if “only one crime” is a
crime involving moral turpitude.

4) The respondent, who was convicted of a crime involving moral
turpitude that qualifies as a petty offense, was not rendered ineligible
for cancellation of removal under section 240A(b)(1) of Act by either
his conviction or his commission of another offense that is not a crime
involving moral turpitude.

In re Moises NAVAS-ACOSTA, 23 I&N Dec. 586 (BIA 2003) Decided April 29, 2003

(1) United States nationality cannot be acquired by taking an oath of
allegiance pursuant to an application for naturalization, because birth
and naturalization are the only means of acquiring United States
nationality under the Immigration and Nationality Act.
(2) The respondent, who was born abroad and did not acquire United
States nationality at birth, by naturalization, or by congressional
action, failed to establish such nationality by declaring his allegiance
to the United States in connection with an application for
naturalization.
Respondent contended that he submitted an application for naturalization
in 1994 and was examined by the Service on January 12, 1996. He signed
a statement declaring his allegiance to the United States. The
naturalization application was denied by the Service on August 22, 1996.
The respondent, citing Hughes v. Ashcroft, 255 F.3d 752 (9th Cir. 2001),
contended that by applying for naturalization and taking an oath of
allegiance, he has attained the status of a “national” of the United
States, as that term is defined in section 101(a)(22)(B) of the Act,
thereby excluding him from the definition of an “alien.”
After considering the historical meaning of the term “national” and the
statutory framework of the Act, we find that nationality under the Act
may be acquired only through birth or naturalization. The respondent was
born in El Salvador, so there is a rebuttable presumption of his
alienage. Matter of Rodriguez-Tejedor, 23 I&N Dec. 153, 164 (BIA 2001).
He does not fall into any of the categories of persons who acquire
nationality through birth under Chapter 1 of Title III of the Act, and
he is not a naturalized citizen. He also does not claim nationality by
virtue of any separate legislation, outside the provisions of the Act,
allowing for the acquisition of nationality on either an individual or
collective basis. His alienage has therefore been established.
Accordingly, the Service’s appeal was sustained.

Matter of D-J-, 23 I&N Dec. 572 (AG 2003) Decided April 17, 2003

(1) The Attorney General has broad discretion in bond proceedings under
section 236(a) of the Immigration and Nationality Act, 8 U.S.C. §
1226(a) (2000), to determine whether to release an alien on bond.
(2) Neither section 236(a) of the Act nor the applicable regulations
confer on an alien the right to release on bond.
(3) In determining whether to release on bond undocumented migrants who
arrive in the United States by sea seeking to evade inspection, it is
appropriate to consider national security interests implicated by the
encouragement of further unlawful mass migrations and the release of
undocumented alien migrants into the United States without adequate
screening.
(4) In bond proceedings involving aliens seeking to enter the United
States illegally, where the Government offers evidence from sources in
the Executive Branch with relevant expertise establishing that
significant national security interests are implicated, Immigration
Judges and the Board of Immigration Appeals shall consider such
interests.
(5) Considering national security grounds applicable to a category of
aliens in denying an unadmitted alien’s request for release on bond does
not violate any due process right to an individualized determination in
bond proceedings under section 236(a) of the Act.
(6) The denial of the respondent’s release on bond does not violate
international law.
(7) Release of the respondent on bond is unwarranted due to
considerations of sound immigration policy and national security that
would be undercut by the release of the respondent and other similarly
situated undocumented alien migrants who unlawfully crossed the borders
of the United States on October 29, 2002; further, the respondent failed
to demonstrate adequately that he does not present a risk of flight if
released and should be denied bond on that basis as well.

In re AASAD, 23 &N Dec. 553 (BIA 2003), Decided February 12, 2003

(1) Case law of the United States Supreme Court holding, in the
context of criminal proceedings, that there can be no
deprivation of effective assistance of counsel where there is
no constitutional right to counsel does not require withdrawal
from Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff’d, 857
F.2d 10 (1st Cir. 1988), finding a right to assert a claim of
ineffective assistance of counsel in immigration proceedings,where
the United States Courts of Appeals have recognized that a
respondent has a Fifth Amendment due process right to a fair
immigration hearing, which may be denied if counsel prevents
the respondent from meaningfully presenting his or her case.

(2) The respondent did not establish that his former counsel’s
failure to file a timely appeal constituted sufficient
prejudice to warrant consideration of his late appeal on the
basis of ineffective assistance of counsel.

Matter of Koloamatangi 23 &N Dec. 548 (BIA 2003), Decided January 8, 2003

An alien who acquired permanent resident status through fraud or
misrepresentation has never been “lawfully admitted for permanent
residence” and is therefore ineligible for cancellation of removal under
section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. §
1229b(a) (2000).

In re M-D-, 23 I&N Dec. 540 (BIA 2002) December 18, 2002

(1) An alien may be charged with receipt of a notice to appear and
notice of the hearing date, where the notice is sent by certified mail
to the alien’s correct address, but it is returned by the United States
Postal Service marked “unclaimed.”
(2) The regulations at 8 C.F.R. § 3.13 (2002) do not require that the
notice to appear or notice of hearing in removal proceedings be sent to
the alien or the alien’s attorney of record by regular mail, as opposed
to certified mail.

In re Rosa MEJIA-ANDINO, 23 I&N Dec. 533 (BIA 2002) December 4, 2002

Removal proceedings against a minor under 14 years of age were properly
terminated because service of the notice to appear failed to meet the
requirements of 8 C.F.R. § 103.5a(c)(2)(ii) (2002), as it was served
only on a person identified as the respondent’s uncle, and no effort was
made to serve the notice on the respondent’s parents, who apparently
live in the United States.

In re Glendi GOMEZ-GOMEZ, 23 I&N Dec. 522 (BIA 2002) December 4, 2002

(1) The Immigration and Naturalization Service met its burden, in an in
absentia removal proceeding, of establishing a minor respondent’s
removability by clear, unequivocal, and convincing evidence, where (1) a
Record of Deportable/Inadmissible Alien (Form I-213) was submitted,
documenting the respondent’s identity and alienage; (2) the respondent,
who failed without good cause to appear at her removal hearing, made no
challenge to the admissibility of the Form I-213; (3) there were no
grounds for a finding that the admission of the Form I-213 would be
fundamentally unfair; and (4) no independent evidence in the record
supported the Immigration Judge’s conclusion that the respondent may not
have been the child of the adult who claimed to be the respondent’s
parent and who furnished the information regarding her foreign
citizenship. Matter of Ponce-Hernandez, 22 I&N Dec. 784 (BIA 1999),
followed.
(2) The respondent, a minor who could not be expected to attend
immigration proceedings on her own, was properly notified of her
hearing, through proper mailing of a Notice to Appear (Form I-862) to
the last address provided by her parent, with whom she was residing.

In re Nabil Ahmed ELGENDI, 23 I&N Dec. 515 (BIA 2002) Decided October
31, 2002

In accordance with authoritative precedent of the United States Court of
Appeals for the Second Circuit in United States v. Pornes-Garcia, 171
F.3d 142 (2d Cir. 1999), and United States v. Polanco, 29 F.3d 35 (2d
Cir. 1994), an individual who has been convicted twice of misdemeanor
possession of marijuana in violation of New York State law has not been
convicted of an aggravated felony under section 101(a)(43)(B) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000).

Matter of Martin, 23 I&N Dec. 491 (BIA 2002) Decided September 26, 2002

The offense of third-degree assault (a class A misdemeanor) in violation
of section 53a-61(a)(1) of the Connecticut General Statutes, which
involves the intentional infliction of physical injury upon another, is
a crime of violence under 18 U.S.C. § 16(a) (2000) and is therefore an
aggravated felony under section 101(a)(43)(F) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2000).

Defendant was convicted pursuant to a guilty plea of the offense of
third-degree assault,which is a class A misdemeanor under Connecticut
law. He was sentenced to a 1-year term of imprisonment.
The term “crime of violence” referenced is defined as (a) an offense
that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or (b) any
other offense that is a felony and that, by its nature, involves a
substantial risk that physical force against the person or property of
another may be used in the course of committing the offense.
Respondent’s offense did not constitute a crime of violence under 18
U.S.C. § 16(b), which is confined to felony offenses by its terms, but
rather by reference to 18 U.S.C. § 16(a).

By expressly including misdemeanor simple assault offenses within the
crime of violence definition at 18 U.S.C. § 16(a), Congress
unequivocally manifested its understanding that assault offenses
involving the intentional infliction or threatened infliction of
“injury” or “bodily harm,” such as those described by 18 U.S.C. §
113(a)(5) and section 53a-61(a)(1) of the Connecticut General Statutes,
have as an inherent element the actual or threatened use of physical
force.

Matter of Recinas, 23 I&N Dec. 467 (BIA 2002)

(1) The respondent, a single mother who has no immediate family
remaining in Mexico, provides the sole support for her six children, and
has limited financial resources, established eligibility for
cancellation of removal under section 240A(b) of the Immigration and
Nationality Act, 8 U.S.C. § 1229b(b) (2002), because she demonstrated
that her United States citizen children, who are 12, 11, 8, and 5 years
old, will suffer exceptional and extremely unusual hardship upon her
removal to her native country.
(2) The factors considered in assessing the hardship to the respondent’s
children include the heavy burden imposed on the respondent to provide
the sole financial and familial support for her six children if she is
deported to Mexico, the lack of any family in her native country, the
children’s unfamiliarity with the Spanish language, and the
unavailability of an alternative means of immigrating to this country.

Matter of S-H-, et al., 23 I&N Dec. 462 (BIA 2002)

Under new regulations that become effective on September 25, 2002, the
Board of Immigration Appeals has limited fact-finding ability on appeal,
which heightens the need for Immigration Judges to include in their
decisions clear and complete findings of fact that are supported by the
record and are in compliance with controlling law. Matter of
Vilanova-Gonzalez, 13 I&N Dec. 399 (BIA 1969), and Matter of
Becerra-Miranda, 12 I&N Dec. 358 (BIA 1967), superseded.

In re Anderson David Justin SMALL

23 I&N Dec. 448 (BIA 2002) Interim
Decision #3476, Decided June 4, 2002

A misdemeanor offense of sexual abuse of a minor constitutes an
aggravated felony under section 101(a)(43)(A) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2000).

In re Hilario ROMALEZ-Alcaide, 23 I&N Dec. 423 (BIA 2002) Interim
Decision #3475, Decided May 29, 2002

For purposes of determining eligibility for cancellation of removal
pursuant to section 240A(b) of the Immigration and Nationality Act, 8
U.S.C. § 1229b(b) (Supp. IV 1998), continuous physical presence is
deemed to end at the time an alien is compelled to depart the United
States under threat of the institution of deportation or removal
proceedings.

In re Walter Antonio SANTOS-LOPEZ, 23 I&N Dec. 419 (BIA 2002) Interim
Decision #3474, Decided May 14, 2002

(1) Under the decisions of the United States Court of Appeals for the
Fifth Circuit in United States v. Hernandez-Avalos, 251 F.3d 505 (5th
Cir.), cert. denied, 122 S. Ct. 305 (2001), and United States v.
Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997), a determination whether an
offense is a “felony” for purposes of 18 U.S.C. § 924(c)(2) (2000)
depends on the classification of the offense under the law of the
convicting jurisdiction. Matter of Yanez, 23 I&N Dec. 390 (BIA 2002),
followed.

(2) Each of the respondent’s two convictions for possession of marihuana
is classified as a misdemeanor offense under Texas law; therefore,
neither conviction is for a “felony” within the meaning of 18 U.S.C. §
924(c)(2) or an “aggravated felony” within the meaning of section
101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. §
1101(a)(43)(B) (2000).

In re Ismael YANEZ-Garcia, 23 I&N Dec. 390 (BIA 2002 ) Interim Decision
#3473, Decided May 13, 2002

The determination whether a state drug offense constitutes a “drug
trafficking crime” under 18 U.S.C. § 924(c)(2) (2000), such that it may
be considered an “aggravated felony” under section 101(a)(43)(B) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000), shall
be made by reference to decisional authority from the federal circuit
courts of appeals, and not by reference to any separate legal standard
adopted by the Board of Immigration Appeals. Matter of K-V-D-, Interim
Decision 3422 (BIA 1999), overruled. Matter of L-G-, 21 I&N Dec. 89 (BIA
1995), and Matter of Davis, 20 I&N Dec. 536 (BIA 1992), modified.

In re Melanie Beaucejour JEAN, 23 I&N Dec. 373 (A.G. 2002) Interim
Decision #3472, Decided May 2, 2002

(1) The 30-day period set forth in 8 C.F.R. § 3.38(b) (2002) for filing
an appeal to the Board of Immigration Appeals is mandatory and
jurisdictional, and it begins to run upon the issuance of a final
disposition in the case.

(2) The Board of Immigration Appeals’ authority under 8 C.F.R. § 3.1(c)
(2002) to certify cases to itself in its discretion is limited to
exceptional circumstances, and is not meant to be used as a general cure
for filing defects or to otherwise circumvent the regulations, where
enforcing them might result in hardship.

(3) In evaluating the propriety of granting an otherwise inadmissible
alien a discretionary waiver to permit adjustment of status from refugee
to lawful permanent resident pursuant to section 209(c) of the
Immigration and Nationality Act, 8 U.S.C. § 1159(c) (2000), any
humanitarian, family unity preservation, or public interest
considerations must be balanced against the seriousness of the criminal
offense that rendered the alien inadmissible.

(4) Aliens who have committed violent or dangerous crimes will not be
granted a discretionary waiver to permit adjustment of status from
refugee to lawful permanent resident pursuant to section 209(c) of the
Act except in extraordinary circumstances, such as those involving
national security or foreign policy considerations, or cases in which an
alien clearly demonstrates that the denial of status adjustment would
result in exceptional and extremely unusual hardship. Depending on the
gravity of the alien’s underlying criminal offense, such a showing of
exceptional and extremely unusual hardship might still be insufficient.

(5) Aliens who have committed violent or dangerous crimes will not be
granted asylum, even if they are technically eligible for such relief,
except in extraordinary circumstances, such as those involving national
security or foreign policy considerations, or cases in which an alien
clearly demonstrates that the denial of status adjustment would result
in exceptional and extremely unusual hardship. Depending on the gravity
of the alien’s underlying criminal offense, such a showing of
exceptional and extremely unusual hardship might still be insufficient.

Manuel RAMOS, 23 I&N Dec. 336 (BIA 2002) Decided April 4, 2002

(1) In cases arising in circuits where the federal court of appeals has
not decided whether the offense of driving under the influence is a
crime of violence under 18 U.S.C. § 16(b) (2000), an offense will be
considered a crime of violence if it is committed at least recklessly
and involves a substantial risk that the perpetrator may resort to the
use of force to carry out the crime; otherwise, where the circuit court
has ruled on the issue, the law of the circuit will be applied to cases
arising in that jurisdiction.

(2) The offense of operating a motor vehicle while under the influence
of intoxicating liquor in violation of chapter 90, section 24(1)(a)(1)
of the Massachusetts General Laws is not a felony that, by its nature,
involves a substantial risk that physical force against the person or
property of another may be used in the course of committing the offense
and is therefore not a crime of violence. Matter of Puente, Interim
Decision 3412 (BIA 1999), and Matter of Magallanes, Interim Decision
3341 (BIA 1998), overruled.

In re Martha ANDAZOLA-Rivas, 23 I&N Dec. 319 (BIA 2002) Interim Decision
#3467, Decided April 3, 2002

(1) The respondent, an unmarried mother, did not establish eligibility
for cancellation of removal under section 240A(b) of the Immigration and
Nationality Act, 8 U.S.C. § 1229b(b) (2000), because she failed to
demonstrate that her 6- and 11-year-old United States citizen children
will suffer exceptional and extremely unusual hardship upon her removal
to Mexico.

(2) The factors considered in assessing the hardship to the respondent’s
children include the poor economic conditions and diminished educational
opportunities in Mexico and the fact that the respondent is unmarried
and has no family in that country to assist in their adjustment upon her
return.

In re Mario Eduardo VELARDE-Pacheco, 23 I&N Dec. 253 (BIA 2002) Interim
Decision #3463, Decided March 6, 2002

A properly filed motion to reopen for adjustment of status based on a
marriage entered into after the commencement of proceedings may be
granted in the exercise of discretion
, notwithstanding the pendency of a
visa petition filed on the alien’s behalf, where: (1) the motion to
reopen is timely filed; (2) the motion is not numerically barred by the
regulations; (3) the motion is not barred by *Matter of Shaar, 21 I&N
Dec. 541 (BIA 1996), or on any other procedural grounds;(4) clear and
convincing evidence is presented indicating a strong likelihood that the
marriage is bona fide; and (5) the Immigration and Naturalization
Service does not oppose the motion or bases its opposition solely on
*Matter of Arthur, 20 I&N Dec. 475 (BIA 1992). *Matter of H-A-, Interim
Decision 3394 (BIA 1999), and Matter of Arthur, supra, modified.

*Matter of Arthur, 1992 BIA LEXIS 8; 20 I. & N. Dec. 475, ID # 3173

(1) Under the rule of Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), a
motion to reopen should generally be granted in cases involving an
application for adjustment of status filed simultaneously with a visa
petition, notwithstanding the fact that the visa petition has not yet
been adjudicated, unless the applicant for adjustment appears clearly
ineligible for the preference classification claimed in the underlying
petition.

(2) Subsequent to our decision in Matter of Garcia, supra, Congress
amended sections 204(g) and 245(e) of the Immigration and Nationality
Act, 8 U.S.C. @@ 1154(g) and 1255(e) (Supp. II 1990), to preclude an
alien from adjusting his status based on a marriage that was entered
into after the commencement of proceedings to determine his right to
enter or remain in the United States and to bar the approval of a visa
petition to accord immediate relative or preference status based upon
such marriage until after the beneficiary of the petition has resided
outside the United States for a 2-year period following the marriage,
unless the alien establishes "by clear and convincing evidence to the
satisfaction of the Attorney General that the marriage was entered into
in good faith and . . . was not entered into for the purpose of
procuring the alien's entry as an immigrant."

*Matter of Garcia, 1978 BIA LEXIS 53; 16 I. & N. Dec. 653, ID # 2684

(1) Rule that reopening of proceedings will be denied absent a prima
facie showing that the statutory requirements for relief have been met
must be reexamined as to adjustment of status in view of the amendment
of 8 C.F.R. 245.2(a)(2) permitting an adjustment application, filed
with a visa petition, to be retained if later approval of the petition
would make a visa available at time of filing.

(2) 8 C.F.R. 245.2(a)(2), permitting simultaneous filing of an
application for adjustment of status and a visa petition, applies both
before and after the issuance of an Order to Show Cause.

(3) Service policy permits a prima facie qualified beneficiary of a
visa petition to remain in the United States pending final adjudication
of the petition and an adjustment application.

(4) Unless clear ineligibility is apparent in the record, the Board
shall generally grant motions to reopen in cases involving an
application for adjustment of status filed simultaneously with a visa
petition pursuant to 8 C.F.R. 245.2(a)(2), notwithstanding the fact
that the petition has not yet been adjudicated.

(5) An immigration judge may, in his discretion, grant a motion to
reopen or a request for a continuance [*2] of a deportation hearing
pending final adjudication of a visa petition filed simultaneously with
an adjustment application under 8 C.F.R. 245.2(a)(2) where a prima
facie approvable visa petition and adjustment application have been
submitted to him. Matter of Kotte, Interim Decision 2634 (BIA 1978)
clarified.

*H-A-, 22 I&N Dec. 728 (BIA 1999), Modified, 23 I&N 253 (BIA 2002)

Matter of Arthur, 20 I&N Dec. 475 (BIA 1992), is not inconsistent with
the motions to reopen regulations at 8 C.F.R. §§ 3.2(c)(2) and
3.23(b)(4)(i) (effective July 1, 1996). Matter of Arthur, supra,
reaffirmed.

*Shaar, 21 I&N Dec. 541(BIA 1996)

(1) An alien who has filed a motion to reopen during the pendency of a
voluntary departure period in order to apply for suspension of
deportation and who subsequently remains in the United States after the
scheduled date of departure is statutorily ineligible for suspension of
deportation pursuant to section 242B(e)(2)(A) of the Immigration and
Nationality Act, 8 U.S.C. § 1252b(e)(2)(A) (Supp. V 1993), if the
notice requirements of that section have been satisfied, absent a
showing that the alien’s failure to timely depart the United States was
due to “exceptional circumstances” under section 242B(f)(2) of the Act.

(2) Neither the filing of a motion to reopen to apply for suspension of
deportation during the pendency of a period of voluntary departure, nor
the Immigration Judge’s failure to adjudicate the motion to reopen
prior to the expiration of the alien’s voluntary departure period
constitutes an "exceptional circumstance."

In re Laura Estella SALAZAR-Regino, 23 I&N Dec. 223 (BIA 2002) Interim
Decision #3462 Decided February 14, 2002

(1) An alien whose adjudication of guilt was deferred pursuant to
article 42.12, section 5(a) of the Texas Code of Criminal Procedure
following her plea of guilty to possession of a controlled substance is
considered to have been convicted of the offense. Matter of Roldan,
Interim Decision 3377 (BIA 1999), reaffirmed.

(2) In Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), the United
States Court of Appeals for the Ninth Circuit overruled in part Matter
of Roldan, supra, which will not be applied in cases arising within the
jurisdiction of the Ninth Circuit.

(3) In light of the decisions in United States v. Hernandez-Avalos, 251
F.3d 505 (5th Cir. 2000), cert. denied, 122 S. Ct. 305 (2001), and
United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997), the
decision of the Board of Immigration Appeals in Matter of K-V-D-,
Interim Decision 3422 (BIA 1999), will not be applied in cases arising
within the jurisdiction of the Fifth Circuit.

In re Carlos VASQUEZ-MUNIZ, 23 I&N Dec. 207 (BIA 2001) Interim Decision
#3461 Decided January 15, 2002.

(1) An offense defined by state or foreign law may be classified as
an aggravated felony as an offense "described in" a federal statute
enumerated in section 101(a)(43) of the Immigration and Nationality
Act, 8 U.S.C. Sec. 1101(a)(43) (1994 & Supp. V 1999), even if it
lacks the jurisdictional element of the federal statute.

(2) Possession of a firearm by a felon in violation of section
12021(a)(1) of the California Penal Code is an aggravated felony
under section 101(a)(43)(E)(ii) of the Act because it is “described
in” 18 U.S.C. Sec. 922(g)(1) (1994). Matter of Vasquez-Muniz,
Interim Decision 3440 (BIA 2000), overruled.

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