Volume 20 — Immigration & Naturalization Decisions

DURAN, 20 I&N Dec. 1 (BIA 1989) ID 3101 (PDF) (1) An immigration judgein deportation proceedings properly denied the respondent's motion tosubpoena government records where the respondent failed to comply withthe requirements of 8 C.F.R. § 287.4(a)(2) (1984) by not specificallystating what he expected to prove by such documentary evidence and bynot affirmatively showing a diligent effort to obtain the records. (2) While a subpoenais not required in the instant proceedings and access should generallybe given to a person in immigration proceedings concerning records maintainedabout himself, the respondent failed to show compliance with the requirementsof 8 C.F.R. § 103.21 (1984) which permit such access.

DERIS, 20 I&N Dec. 5 (BIA 1989) ID 3102 (PDF) For immigration purposes,the Maryland first offender statute, Article 27, section 292 of the AnnotatedCode of Maryland, which offers favorable treatment to anyone committinghis first drug violation regardless of the nature and severity of theoffense, is not a counterpart to the federal first offender statute, whichis limited in its application to simple possession of a controlled substancehence, the respondent in deportation proceedings may properly be founddeportable for having been convicted by a Maryland state court of a drugviolation.

GRULLON, 20 I&N Dec. 12 (BIA 1989) ID 3103 (PDF) (1) A conviction doesnot exist for immigration purposes where an alien's criminal charges weredismissed without prejudice following his successful completion of a pretrialintervention program prescribed by section 944.025 of the Florida Statutes. (2) In the absence ofa conviction, a respondent in deportation proceedings is not barred fromestablishing good moral character under section 101(f)(3) of the Immigrationand Nationality Act, 8 U.S.C. § 1101(f)(3) (1982), for the purposeof applying for suspension of deportation under section 244(a) of theAct, 8 U.S.C. § 1254(a) (1982).

CHEN, 20 I&N Dec. 16 (BIA 1989) ID 3104 (PDF) (1) An applicant forasylum under section 208 of the Immigration and Nationality Act, 8 U.S.C.§ 1158 (1982), may establish his claim by presenting evidence ofpast persecution in lieu of evidence of a well-founded fear of persecution. (2) Where an alien hasshown that he has been persecuted in the past on account of race, religion,nationality, membership in a particular social group, or political opinion,the likelihood of present persecution then becomes relevant as to theexercise of discretion, and asylum may be denied as a matter of discre-tion if there is little likelihood of present persecution. (3) Where past persecutionhas been established by an applicant for asylum, the Service ordinarilywill be obliged to present, as a factor militating against a favorableexercise of administrative discretion, evidence that little likelihoodof present persecution exists, or the presiding official(s) may take administrativenotice of changed circumstances in a country. (4) A favorable exerciseof administrative discretion in an asylum application may be warrantedfor humanitarian reasons notwithstanding the fact that there is littlelikelihood of future persecution.

ANSELMO, 20 I&N Dec. 25 (BIA 1989) ID 3105 (PDF) (1) The United StatesCourt of Appeals for the Ninth Circuit has held that the Equal Accessto Justice Act ("EAJA") "covers deportation proceedingsbefore the administrative agency as well as court proceedings reviewingdeportation decisions." Escobar Ruiz v. INS, 838 F.2d 1020 (9th Cir.1988) (en banc). (2) Although the Boardof Immigration Appeals disagrees with the court's holding, the decisionof the Ninth Circuit that the EAJA applies to deportation proceedingsmust be followed in deportation proceedings arising within the jurisdictionof the Ninth Circuit. (3) The Department ofJustice regulations implementing the EAJA should be applied to EAJA attorneyfee requests filed in conjunction with deportation proceedings arisingwithin the jurisdiction of the Ninth Circuit.

FEDE, 20 I&N Dec. 35 (BIA 1989) ID 3106 (PDF) (1) A regulation promulgatedby the Attorney General has the force and effect of law as to immigrationjudges and the Board of Immigration Appeals. (2) As the Attorney Generalhas determined by regulation that immigration proceedings do not comewithin the scope of the Equal Access to Justice Act, absent a regulatorychange or controlling court order, neither an immigration judge nor theBoard has authority to consider an application for attorney fees and costsunder that Act.

CHANG, 20 I&N Dec. 38 (BIA 1989) ID 3107 (PDF) (1) Implementation of the one couple, one child policy of the Chinese Government is not on itsface persecutive and does not create a well-founded fear of persecutionon account of one of the five reasons enumerated in section 101(a)(42)(A)of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42)(A)(1982), even to the extent that involuntary sterilizations may occur. (2) An individual claimingasylum for reasons related to the one couple, one child policy must establishthat the application of the policy to him was in fact persecutive or thathe had a well-founded fear that it would be persecutive because the policywas being selectively applied against members of a particular religiousgroup or was being used to punish individuals for their political opinionsor for other reasons enumerated under section 101(a)(42)(A) of the Act. (3) A person who showsthat he opposed the one couple, one child policy but was subjected toit nevertheless has not demonstrated that he was being punished for hisopinion as a member of a particular social group (persons opposed to thepolicy), but rather, there must be evidence that the governmental actionarose for a reason other than general population control (for instance,evidence of disparate, more severe treatment for those who publicly opposethe policy). (4) If the applicantclaims that action occurred at the hands of local officials, he must normallyshow that redress from higher officials was unavailable or that he hasa well-founded fear that it would be unavailable. (5) The policy guidelinesannounced by Attorney General Meese on August 5, 1988, regarding the onecouple, one child policy do not apply to decisions by immigration judgesand the Board of Immigration Appeals.

SAFETRAN, 20 I&N Dec. 49 (Comm.1989) ID 3108 (PDF) (1) Although not specificallyaddressed in the regulations, the 5- or 6-year limit of stay imposed on"H-1" and "L-1" nonimmigrant aliens is cumulativeit includes both the time spent in the United States as an "H-1"and as an "L-1" in the same 5- or 6-year period of time. (2) In order to establishthe existence of extraordinary circumstances warranting an extension oftemporary stay for a sixth and final year, the petitioner bears the burdenof submitting evidence clearly detailing the extreme hardship it willencounter as a result of the termination of the beneficiary's services.

GORDON, 20 I&N Dec. 52 (BIA 1989) ID 3109 (PDF) (1) An alien in deportationproceedings who was found deportable but was granted a waiver of inadmissibilityunder section 212(c) of the Immigration and Nationality Act, 8 U.S.C.§ 1182(c) (1982), returns to the same lawful permanent resident statusthat he previously held. (2) Notwithstanding therespondent's conviction for a crime committed after a grant of a waiverof inadmissibility, his grant may not be subsequently withdrawn for thatreason in a reopened deportation proceeding the Immigration and NaturalizationService must initiate new deportation proceedings in order to have theimmigration judge consider evidence of subsequent criminal activity bythe respondent. (3) While section 212(c)of the Act does not expressly or implicitly provide for revocation orrescission of a grant of a waiver of inadmissibility or a conditionalgrant of a waiver, an immigration judge may nevertheless reopen proceedingsand reconsider his own decision to grant a waiver if he believes thatthe waiver was erroneously granted in the first instance.

EEASTERN AIRLINES, INC., FLIGHT 798, 20 I&N Dec. 57 (BIA 1989) ID 3110 (PDF) (1) In fine proceedingsunder section 273 of the Immigration and Nationality Act, 8 U.S.C. §1323 (1982), liability cannot be avoided by proof that the alien passengerhas lawful permanent resident status if he did not have proper entry documentsin his possession at the time of his arrival. (2) Fine liability cannotbe avoided even if the alien was subsequently admitted as a returninglawful permanent resident alien where the alien did not have proper entrydocuments at the time of his arrival. (3) Remission of a fineis not warranted where the carrier was correct in believing that the alienpassenger had lawful permanent resident status if the alien did not havedocuments in his possession at the time of his arrival which entitledhim to admission on the basis of such status.

WALSH AND POLLARD, 20 I&N Dec. 60 (BIA 1989) ID 3111 (PDF) (1) A foreign corporationmust have invested or be actively in the process of investing a substantialamount of capital in order to qualify as a treaty investor under section101(a)(15)(E) of the Immigration and Nationality Act, 8 U.S.C. §1101(a)(15)(E) (1982). (2) Under the treatyinvestor criteria, no particular dollar amount is required for an investmentto be deemed substantial however, the investment must be in a bona fidebusiness and, in the case of a new business, the investment must not bein a marginal enterprise solely for earning a living but must be of anamount normally considered necessary to establish a viable enterpriseof the nature contemplated. (3) The applicants, whoare employed as automotive design engineers by a foreign corporation,do not have supervisory or managerial duties however, they are highlytrained, specially qualified, and essential to the corporation's efficientoperation and thus qualify for an "E-2" visa classificationeven though they are not engaged in developing and directing the qualifyinginvestment.

PINEDA, 20 I&N Dec. 70 (BIA 1989) ID 3112 (PDF) (1) A visa petition filedby a father on behalf of his child who was born out of wedlock was properlydenied when the father failed to establish the existence of a bona fideparent-child relationship and thereby failed to establish that the beneficiarywas his "child" within the meaning of section 101(b)(1)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(D) (Supp.IV 1986). (2) In order for an illegitimatechild to qualify within the meaning of section 101(b)(1)(D) of the Act,a bona fide parent-child relationship need only exist at the time thevisa petition is filed or at some prior point during the life of the child,provided the child is unmarried and less than 21 years of age when therelationship is established. (3) Congress has providedno guidance on the intended meaning of the phrase "bona fide parent-childrelationship," but at minimum there should be some showing of emotionaland/or financial ties or an active concern by the father for the child'ssupport, instruction, and general welfare. (4) Evidence relevantto establishing a bona fide parent-child relationship is varied and widespreadin nature and may include money order receipts or cancelled checks showingthe petitioner's financial support of the beneficiary income tax returnsmedical or insurance records school records for the beneficiary correspondencebetween the parties and notarized affidavits of friends, neighbors, schoolofficials, or other knowledgeable associates. (5) The most persuasiveevidence for establishing a bona fide parent-child relationship is documentaryevidence which was contemporaneous with the events in question. (6) Evidence showingthat the parent-child relationship was established only after the petitioningfather gained lawful permanent resident status and, by extension, thelegal right to seek preference status for the beneficiary may be sufficientproof of a bona fide relationship

E-M-, 20 I&N Dec. 77 (Comm. 1989) ID 3113 (PDF) (1) An applicant seekingtemporary resident status under section 245A of the Immigration and NationalityAct, 8 U.S.C. § 1255a (Supp. IV 1986), has the burden to prove hiseligibility by a preponderance of the evidence. (2) There is no catch-alldefinition of the term "preponderance of the evidence." Whetheran applicant has submitted sufficient evidence to meet his burden of proofunder section 245A of the Act will depend upon the factual circumstancesof each case. Generally, however, when something is to be establishedby a preponderance of evidence it is sufficient that the proof only establish that it is probably true. (3) An applicant whosubmitted an Arrival-Departure Record (Form I-94) and his passport toprove he entered the United States prior to 1982, affidavits from acquaintancesand employers to prove his continuous residence in the United States sincesuch a date, and an affidavit explaining why he was unable to submit otherdocumentation has established by a preponderance of the evidence thathe has resided continuously in the United States in an unlawful statussince prior to January 1, 1982.

FUEYO, 20 I&N Dec. 84 (BIA 1989) ID 3114 (PDF) (1) Evidence that therespondent was taken into custody and deported by the Immigration andNaturalization Service establishes that she was "arrested and deported"within the meaning of section 212(a)(17) of the Immigration and NationalityAct, 8 U.S.C. § 1182(a)(17) (1982). (2) The burden is onthe respondent to prove that, following her deportation, she applied forand received consent to reapply for admission to the United States fromthe Attorney General or his designate. (3) A nonimmigrant waiverof inadmissibility under section 212(d)(3)(B) of the Act may not be grantednunc pro tunc in deportation proceedings. Matter of P-, 8 I&N Dec.302 (Asst. Comm. 1959) and Matter of M-, 8 I&N Dec. 285 (R.C., Asst.Comm. 1959), superseded.

RODRIGUEZ-ESTEBAN, 20 I&N Dec. 88 (BIA 1989) ID 3115 (PDF) The immigration judgeand this Board lack jurisdiction in deportation proceedings to reconsiderthe order of the district director made in rescission proceedings. Matterof Saunders, 16 I&N Dec. 326 (BIA 1977), modified.

RUIZ, 20 I&N Dec. 91 (BIA 1989) ID 3116 (PDF) (1) Following an in absentiahearing, the underlying relief being sought by way of a motion to reopenis the opportunity to present the applications for relief at a full evidentiaryhearing. (2) Where an alien establishesreasonable cause for his failure to appear at his exclusion hearing, amotion to reopen the proceedings following an in absentia hearing willbe granted without requiring that the alien establish prima facie eligibilityfor asylum or withholding of exclusion and deportation.

CUELLO, 20 I&N Dec. 94 (BIA 1989) ID 3117 (PDF) (1) Where an adoptionhas been effected, be it intrafamily or otherwise, and the adopted childcontinues to reside in the same household with the natural parent or parentsduring the period in which the adoptive parent seeks to establish hisor her compliance with the statutory residence requirement of section101(b)(1)(E) of the Immigration and Nationality Act, 8 U.S.C. §1101(b)(1)(E)(1982), the petitioner has the burden of establishing that the adoptiveparent exercised primary parental control during that period of residence. (2) Evidence of parentalcontrol may take many forms, including competent objective evidence thatthe adoptive parent owns or maintains the property where the child resides,provides financial support and day-to-day care, and assumes responsibilityfor important decisions in the child's life. (3) The evidence mustclearly establish the physical living arrangements of the adopted child,adoptive parents, and the child's natural parents during the period oftime in which the adoptive parent seeks to establish compliance with theresidence requirement of the statute and, where a fraudulent or ad hocadoption is suspected, during any period following the adoption whichthe adjudicating officer deems appropriate. (4) Where a petitionerestablishes compliance with the statutory requirements of section 101(b)(1)(E)of the Act, demonstrating, where necessary, primary parental control duringthe parties' residence with one another, the relationship will be presumedbona fide in the absence of evidence indicating otherwise. Matter of Yuen,14 I&N Dec. 71 (BIA 1972) and Matter of Tang, 14 I&N Dec. 180(BIA 1972), distinguished.

SOLEIMANI, 20 I&N Dec. 99 (BIA 1989) ID 3118 (PDF) (1) A finding that analien was firmly resettled in another country does not render him ineligiblefor a grant of asylum under section 208 of the Immigration and NationalityAct, 8 U.S.C. § 1158 (1982), by an immigration judge or the Boardof Immigration Appeals. Rosenberg v. Yee Chien Woo, 402 U.S. 49 (1971),distinguished. Matter of Portales, 18 I&N Dec. 239 (BIA 1982) andMatter of Lam, 18 I&N Dec. 15 (BIA 1981), modified. (2) The Board and immigrationjudges are not bound by the provisions of 8 C.F.R. §208.8(f)(1)(ii)(1988), which precludes district directors of the Immigration and NaturalizationService from granting asylum under section 208 of the Act to aliens whoare firmly resettled in a third country. (3) An alien's firm resettlementin another country is a factor to be evaluated in determining whetherasylum should be granted as a matter of discretion under the standardsset forth in Matter of Pula, 19 I&N Dec. 467 (BIA 1987). (4) A finding that analien has been firmly resettled in a third country would normally precludea grant of asylum as a matter of discretion, unless the alien can demonstratecountervailing equities in his favor that are compelling in nature. (5) Whether or not anoutstanding offer of permanent residence or citizenship to all Jews whoarrive in Israel constitutes a specific offer of permanent resettlementto the respondent, the pertinent regulations and the Board's prior decisionscannot be read so restrictively that the respondent's circumstances inIsrael become irrelevant. (6) An alien will notbe found to be firmly resettled elsewhere if it is shown that his physicalpresence in the United States is a consequence of his flight in searchof refuge, and that his physical presence is reasonably proximate to theflight and not one following a flight remote in point of time or interruptedby an intervening residence in a third country reasonably constitutinga termination of the original flight in search of refuge. (7) The question of firmresettlement is not always limited solely to the inquiry of how much timehas elapsed between the alien's flight and the asylum application, whereother factors germane to the question of whether the alien has firmlyresettled include family ties, intent, business or property connections,and other matters. (8) A determination thatthe respondent was not firmly resettled in Israel does not end the Board'sinquiry as to whether the respondent should be granted asylum as a matterof discretion, where the respondent did have some ties to Israel, andsuch ties are a factor to be evaluated in the exercise of discretion.

DEL RISCO, 20 I&N Dec. 109 (BIA1989) ID 3119 (PDF) A conviction in the SuperiorCourt of Arizona for facilitation of the unlawful sale of cocaine rendersan alien deportable under section 241(a)(11) of the Immigration and NationalityAct, 8 U.S.C. § 1251(a)(11) (Supp. IV 1986), as an alien convictedof a violation of a law relating to a controlled substance.

LIGIDAKIS, 20 I&N Dec. 112 (BIA 1989) ID 3120 (PDF) Due notice to the Immigrationand Naturalization Service regarding a judicial recommendation againstdeportation pursuant to section 241(b)(2) of the Immigration and NationalityAct, 8 U.S.C. § 1251(b)(2) (1982), shall be regarded as having beenmade where the Service has actual notice prior to the recommenda- tionand does not interpose an objection based on insufficient preparationtime under 8 C.F.R. § 241.1 (1984) but instead prepares and presentsits representations.

FEFE, 20 I&N Dec. 116 (BIA 1989) ID 3121 (PDF) (1) An applicant forasylum cannot meet his burden of proof unless he testifies under oathregarding his application and, therefore, an immigration judge shouldnot proceed to adjudicate a written application for asylum if no oraltestimony has been offered in support of that application. (2) At a minimum, theregulations require that an asylum applicant take the stand, be placedunder oath, and be questioned as to whether the information in his writtenapplication is complete and correct the examination of an applicant willordinarily be this brief only where the parties have stipulated that theapplicant's oral testimony would be consistent with his written applicationand that his testimony would be believably presented.

DASS, 20 I&N Dec. 120 (BIA 1989) ID 3122 (PDF) (1) As an asylum applicantbears the evidentiary burden of proof and persuasion, where there aresignificant, meaningful evidentiary gaps, the applications ordinarilywill be denied for failure of proof. (2) While we adhere tothe holding in Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987), thatthe lack of corroboration for an asylum applicant's testimony will notnecessarily be fatal to his application, this does not mean that the introduction of supporting evidence is purely an option with an asylum applicant in the ordinary case the general rule is that such evidence should be presentedif it is available. (3) Background evidencemay be needed to evaluate the credibilit y of an asylum applicant's testimonyas the basis for an asylum claim becomes less focused on specific eventsinvolving the alien personally and instead is more directed to broad allegationsregarding general conditions in the alien's country of origin, corroborativebackground evidence to establish a plausible context for the claim maybecome essential, or alternatively an acceptable explanation for the absenceof such evidence may become necessary. (4) It was proper toconclude that the asylum applicant failed to establish a well-foundedfear of persecution where his persecution claim was based on sweepingclaims about persecution by the Government of India, as well as on thealien's testimony regarding his own circumstances, and he did not providebackground evidence to corroborate the claims about the Government ofIndia.

RUSIN, 20 I&N Dec. 128 (BIA1989) ID 3123 (PDF) A respondent in deportationproceedings who seeks to adjust her status to that of a lawful permanentresident is not statutorily precluded from doing so by virtue of her formermembership in a Communist organization where she can establish that herassociation in that organization was not meaningful or that her membershipwas involuntary or that she otherwise comes within one of the specifiedexceptions set forth in section 212(a)(28)(I)(i) of the Immigration andNationality Act, 8 U.S.C. § 1182(a)(28)(I)(i) (1982).

ULUOCHA, 20 I&N Dec. 133 (BIA 1989) ID 3124 (PDF) (1) The bond regulations(8 C.F.R. §§ 3.18(a) and 242.2(d) (1989)), which establish uniqueand informal proceedings, do not specifically address motions to reopenand do not expressly limit a detained alien to one application for modificationof the amount or terms of a bond. (2) Immigration judgescan further consider requests to modify bonds by detained aliens withouta formal motion to reopen under 8 C.F.R. § 242.22 (1989). (3) Further requeststo modify bonds should be considered on the merits and if there are nochanged circumstances shown, the immigration judge can decline to changethe prior bond decision. Matter of Chew, 18 I&N Dec. 262 (BIA 1982),followed.

SHORT, 20 I&N Dec. 136 (BIA 1989) ID 3125 (PDF) (1) If the underlyingor substantive crime involves moral turpitude, then a conviction for aidingin the commission of the crime or for otherwise acting as an accessorybefore the fact is also a conviction for a crime involving moral turpitude.Matter of F-, 6 I&N Dec. 783 (BIA 1955), followed. (2) The Board of ImmigrationAppeals withdraws from Matter of Baker, 15 I&N Dec. 50 (BIA 1974),to the extent that it holds that an assault with intent to commit a felonyis per se a crime involving moral turpitude without regard to whetherthe underlying felony involves moral turpitude there must be a findingthat the felony intended as a result of the assault involves moral turpitude. (3) For purposes of determiningwhether the respondent's conviction for aiding and abetting in the assaultwith intent to commit a felony upon the person of a minor in violationof 18 U.S.C. § 2 (1982) and 18 U.S.C. § 113(b) (Supp. IV 1986)was for a crime involving moral turpitude, the conviction record of therespondent's husband, whom she was convicted of aiding and abetting, maynot be properly be admitted as evidence where the respondent's recordof conviction nowhere related her crime of aiding and abetting to thespecific sexual offense of which her husband was convicted, the respondent'sprior conviction for engaging in deviate sexual intercourse with a 3-year-oldfemale was overturned on appeal, and the statute under which she was subsequentlyconvicted specifically excluded felonies under Chapter 109A of Title 18(18 U.S.C. §§ 2241-45 (Supp. IV 1986)), which concerns sexualabuse offenses.

VILLALTA, 20 I&N Dec. 142 (BIA 1990) ID 3126 (PDF) (1) Alien who establishedthrough his direct and uncontradicted testimony that he and his immediatefamily members were singled out and threatened with death by a "DeathSquad," and whose brother was subsequently slain in a noncombat situation,demonstrated a well-founded fear of persecution in El Salvador pursuantto section 208(a) of the Immigration and Nationality Act, 8 U.S.C. §1158(a) (1982). (2) Alien's testimonythat he and his immediate family members had been threatened with harmdue to his activities in a student organization in El Salvador establisheda well-founded fear of persecution on account of political opinion.

IZATULA, 20 I&N Dec. 149 (BIA 1990) ID 3127 (PDF) (1) The general rulethat prosecution for an attempt to overthrow a lawfully constituted governmentdoes not constitute persecution is inapplicable in countries where a coupis the only means of effectuating political change. Dwomoh v. Sava, 696F. Supp. 970 (S.D.N.Y. 1988), followed. (2) Alien who activelyassisted the mujahedin in Afghanistan, and who was sought out by the Afghanregime because of that activity, established a well-founded fear of persecutionwithin the meaning of the Immigration and Nationality Act since therewas no basis in the record to conclude that any punishment imposed onthe alien would be an example of prosecution for an attempt to overthrowa lawfully constituted government.

KEYTE, 20 I&N Dec. 158 (BIA1990) ID 3128 (PDF) Departure from the UnitedStates by an applicant for admission in exclusion proceedings after thetaking of an appeal from the immigration judge's order denying admissiondoes not constitute withdrawal of the appeal.

MARQUEZ, 20 I&N Dec. 160 (BIA1990) ID 3129 (PDF) (1) The Board of ImmigrationAppeals rejects a strict statutory interpretation of section 101(b)(1)(E)of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(E)(1982), thereby relying upon the legislative history of the statute whichindicates that Congress did not intend to recognize ad hoc adoptions designedto circumvent the immigration laws. (2) The Board finds theadoptive relationship is more akin to marital relationships than to steprelationships,and thus, in certain cases, the bona fides of adoptions will be determined. (3) Visa petitions involvingthe specter of sham adoptions which generally arise in adoptions by aclose relative where the relationship between the natural parent and theadopted child does not appear to change subsequent to the adoption willbe analyzed under the standards set forth in Matter of Cuello, 20 I&NDec. 3117 (BIA 1989).

TAWFIK, 20 I&N Dec. 166 (BIA 1990) ID 3130 (PDF) (1) In making a determinationthat a beneficiary's prior marriage comes within the purview of section204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c)(1988), as a marriage entered into for the purpose of evading the immigrationlaws, the district director should not give conclusive effect to determinationsmade in prior proceedings, but, rather, should reach an independent conclusionbased on the evidence of record, although any relevant evidence may berelied upon, including evidence having its origin in prior Service proceedingsinvolving the beneficiary or in court proceedings involving the priormarriage. (2) A decision to revokeapproval of a visa petition because the beneficiary entered into a priormarriage for the primary purpose of obtaining immigration benefits canonly be sustained if there is substantial and probative evidence in thealien's file to the effect that the prior marriage was entered into forsuch purpose, and, where the district director concluded that there wasevidence in the record from which it could "reasonably be inferred"that a marriage had been entered into for the primary purpose of obtainingimmigration benefits, the substantial and probative evidence, requisiteto the revocation of a subsequently approved visa petition, was not presented.

BARRETT, 20 I&N Dec. 171 (BIA 1990) ID 3131 (PDF) The definition of "drugtrafficking crime" in 18 U.S.C. § 924(c)(2) (1988) for purposesof determining a drug-related "aggravated felony" within themeaning of section 101(a)(43) of the Immigration and Nationality Act,8 U.S.C. § 1101(a)(43) (1988), includes state convictions for crimesanalogous to offenses under the Controlled Substances Act, 21 U.S.C. §801 et seq. (1988), the Controlled Substances Import and Export Act, 21U.S.C. § 951 et seq. (1988), or the Maritime Drug Law EnforcementAct, 46 U.S.C. App. § 1901 et seq. (1988).

LUTHERAN MINISTRIESOF FLORIDA, 20 I&N Dec. 185 (BIA 1990) ID 3132 (PDF) The application of anonprofit organization seeking recognition under 8 C.F.R. § 292.2(a)(1989) should include detailed information as to how the organizationwill operate and by whom it will be staffed, as well as other evidenceregarding the organization's qualifications such as resumes for the staffmembers and information as to the availability of legal resource materials,training programs in immigration law and procedure, and supervised employmentfor the staff.

DOBERE, 20 I&N Dec. 188 (BIA 1990) ID 3133 (PDF) Under the Rules of Procedurefor Proceedings before Immigration Judges, immigration judges have theauthority to change venue in exclusion proceedings even in cases wherethe applicant is being held in custody. Matter of Alphonse, 18 I&NDec. 178 (BIA 1981), superseded.

EDWARDS, 20 I&N Dec. 191 (BIA 1990) ID 3134 (PDF) (1) A clear showing ofreformation is not an absolute prerequisite to a favorable exercise ofdiscretion in every section 212(c) application involving an alien with a criminal record therefore, section 212(c) applications involving convictedaliens must be evaluated on a case-by-case basis, with rehabilitationa factor to be considered in the exercise of discretion. Matter of Buscemi,19 I&N Dec. 628 (BIA 1988) and Matter of Marin, 16 I&N Dec. 581(BIA 1978), clarified. (2) A proper determinationas to whether an alien has demonstrat ed unusual or outstanding equitiesin a section 212(c) application can only be made after a complete reviewof the favorable factors in his case, and, therefore, the use of the term"threshold test" is deemed to be inappropriate in this context,as it might be interpreted to imply that a full examination of an alien'sequities can somehow be pretermitted. Matter of Buscemi, supra, clarified.

LOPEZ-BARRIOS, 20 I&N Dec. 203 (BIA1990) ID 3135 (PDF) (1) The administrativeclosing procedure may not be used if it is opposed by either party tothe proceedings. (2) If an immigrationjudge is satisfied that the notice provided to a respondent who failedto appear for a scheduled hearing was sufficient, then a hearing in absentiamay be held, but if the notice was not sufficient, then termination ofproceedings, not administrative closing, is appropriate.

MUNOZ-SANTOS, 20 I&N Dec. 205 (BIA 1990) ID 3136 (PDF) (1) Where the Order toShow Cause, Notice of Hearing, and arrant for Arrest of Alien (Form I-221S)reflects that the respondent signed various portions of the form, thatvarious rights forms and advisories had been served on the respondent,and that an officer of the Immigration and Naturalization Service signedthe portion of the document certifying service, it may be assumed thatthe Order to Show Cause was served personally on the respondent, in compliancewith 8 C.F.R. § 242.1(c) (1990). (2) Personal serviceof a notice of a hearing date is not required for the immigration judgeto conduct a deportation hearing in absentia where the respondent failsto appear for a scheduled hearing. (3) Where the immigrationjudge concludes that notice of a hearing date has been sufficiently providedto a respondent, and the respondent without reasonable cause fails toappear, the immigration judge may conduct an in absentia deportation hearing.

EDEN, 20 I&N Dec. 209 (BIA 1990) ID 3137 (PDF) An alien convicted ofan aggravated felony is subject to detention under section 242(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(2) (1988),upon completion of the incarceration or confinement ordered by the courtfor such conviction.

MEDRANO, 20 I&N Dec. 216 (BIA 1990) ID 3138 (PDF) (1) The status of a lawfultemporary resident alien who commits a deportable offense must be terminatedpursuant to section 245A(b)(2) of the Immigration and Nationality Act,8 U.S.C. § 1255a(b)(2) (1988), as a condition precedent to the commencementof deportation proceedings. (2) A motion to reconsiderwhich is based on a legal argument that could have been raised earlierin the proceedings will be denied.

SANCHEZ, 20 I&N Dec. 223 (BIA1990) ID 3139 (PDF) (1) The immigration judgeerred in holding that he had jurisdiction to conduct a hearing in bondproceedings for a criminal alien who was still incarcerated in a MarylandState penal institution. (2) The Immigration andNaturalization Service did not have actual physical custody of the criminalalien, and therefore there was no authority for the commencement of bondproceedings before an immigration judge under the regulations. (3) The filing of a Servicedetainer with the Maryland penal authorities does not constitute actualphysical custody. (4) Section 242(i) of the Immigration and Nationality Act, 8 U.S.C. § 1252(i) (1988), whichindicates that the Attorney General should begin any deportation proceedingas expeditiously as possible after the date of the conviction, is nota vehicle for incarcerated aliens to demand immediate deportation hearings.

FUENTES, 20 I&N Dec. 227 (BIA 1991) ID 3140 (PDF) (1) Issuance of an Orderto Show Cause is sufficient to commence proceedings against an alien forpurposes of section 204(h) of the Immigration and Nationality Act, 8 U.S.C.§ 1154(h) (1988). Matter of Enriquez, 19 I&N Dec. 554 (BIA 1988),superseded. (2) A visa petition basedon a marriage which occurred after proceedings have commenced againstthe beneficiary may be approved if he can show by clear and convincingevidence that his marriage to the petitioner was entered into in goodfaith.

R-P-, 20 I&N Dec. 230 (BIA 1990) ID 3141 (PDF) (1) Where an immigrationjudge in deportation proceedings issues a decision granting an alien voluntarydeparture, the sole relief requested, the Board of Immigration Appealsmay summarily dismiss the alien's appeal from that decision pursuant to8 C.F.R. § 3.1(d)(1-a)(iii) (1990). (2) The Board will notgrant a further period of voluntary departure to an alien who files afrivolous appeal from a decision which does not adversely affect him.

PEUGNET, 20 I&N Dec. 233 (BIA 1991) ID 3142 (PDF) (1) The definition of the terms "routine service" and "personal service"provided by 8 C.F.R. §103.5a(a) (1990) only applies to administrativeproceedings before Immigration and Naturalization Service officers andconsequently is not directly or formally applicable to defining the terms"routine" and "personal" service as used in 8 C.F.R.§ 242.1(c) (1990) regarding the proper service on an alien of anOrder to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien(Form I-221S) as a means of instituting deportation proceedings. (2) In interpreting theterms "routine" and "personal" service as used in8 C.F.R. § 242.1(c) (1990), the Board of Immigration Appeals willuse the definition provided in 8 C.F.R. § 103.5a(a) (1990) as guidanceand adopt that definition in total, given that 8 C.F.R. § 103.5a(a)(1990) previously applied in defining "routine" versus "personal"service of an Order to Show Cause and there exists no currently applicableregulation defining these terms for purposes of 8 C.F.R. §242.1(c)(1990). (3) For purposes of defining"routine" and "personal" service within the meaningof 8 C.F.R. §242.1(c) (1990), routine service consists of mailinga copy of a document by ordinary mailaddressed to a person at his lastknown address, while personal service, which shall be performed by a governmentemployee, consists of any of the following, without priority or preference:delivery of a copy personally delivery of a copy at a person's dwellinghouse or usual place of abode by leaving it with some person of suitableage and discretion delivery of a copy at the office of an attorney orother person, including a corporation, by leaving it with a person incharge mailing a copy by certified or registered mail, return receiptrequested, addressed to a person at his last known address. (4) An alien's deportationhearing may not proceed in absentia where the Order to Show Cause is sentto the alien's address by regular mail and is not reserved by personalservice as required by 8 C.F.R. § 242.1(c) (1990) after the alienfails to appear for the hearing or acknowledge that he has received theOrder to Show Cause.

GUEVARA, 20 I&N Dec. 238 (BIA 1991) ID 3143 (PDF) (1) A respondent in deportationproceedings who remains silent when confronted with evidence of his alienage,the circumstances of his entry, or his deportability, may leave himselfopen to adverse inferences, which may properly lead in turn to a findingof deportability against him. (2) In deportation proceedings,the respondent's silence alone, in the absence of any other evidence ofrecord, is insufficient to constitute prima facie evidence of the respondent'salienage and is therefore also insufficient to establish the respondent'sdeportability by clear, unequivocal, and convincing evidence. (3) Whether or not theGovernment's purported grant of immunity from prosecution is actuallyvalid, the Immigration and Naturalization Service may not rely on therespondent's silence alone to establish a prima facie case of alienageand deportability. (4) The immigration judge'sfinding that the Service had established the respondent's alienage anddeportability on the basis of the respondent's silence alone was foundto be erroneous, and the Board of Immigration Appeals terminated the deportationproceedings. (5) Where the Servicedid not seek to modify its case against the respondent, but merely requestedan additional opportunity to make a second effort at proving the sameallegations and charge which had already been advanced unsuccessfully,regulations at 8 C.F.R. §§ 3.28 and 242.16(d) (1990) did notapply, and the Board dismissed the Service's motion to reconsider.

HUETE, 20 I&N Dec. 250 (BIA 1991) ID 3144 (PDF) (1) In order to effectpersonal service of an Order to Show Cause and Notice of Hearing (FormI-221) sent by certified mail, return receipt requested, the receipt mustbe signed by the addressee or a responsible person at his or her addressand returned. (2) The respondent didnot have a reasonable opportunity to be present at his deportation hearingwhere he was not personally served with the Order to Show Cause. (3) The immigration judgedid not err in terminating deportation proceedings based on his findingthat the Order to Show Cause was not properly served where the certifiedmail return receipt was not signed and returned.

TIWARI, 20 I&N Dec. 254 (BIA 1991) ID 3145 (PDF) In denying the Immigrationand Naturalization Service's motion to reconsider Matter of Tiwari, 19I&N Dec. 875 (BIA 1989), the Board of Immigration Appeals clarifiedits previous decision and explained that the trier of fact is not prohibitedfrom making inferences from evidence introduced in deportation proceedings,but that under the circumstances of this case, the inference suggestedby the Service was inadequate to establish the respondent's deportabilityby clear, unequivocal, and convincing evidence.

CERNA, 20 I&N Dec. 399 (BIA 1991) ID 3161 (PDF) (1) An applicant forrelief under section 212(c) of the Immigration and Nationality Act, 8U.S.C. §1182(c) (1988), must be a lawful permanent resident of theUnited States and must have a lawful unrelinquished domicile of 7 consecutiveyears. (2) Barring a subsequentreversal of a respondent's deportability finding by an appellate courtor administratively, an alien's status as a lawful permanent alien endsupon the entry of an administratively final order of deportation. (3) A respondent whois subject to an administratively final order of deportation cannot successfullymove to reopen deportation proceedings to again apply for relief undersection 212(c) of the Act as such a respondent is no longer a lawful permanentresident of this country. (4) Authority from onecircuit is not binding in another and the Board declines to follow theholding in Vargas v. INS, 938 F.2d 358 (2d Cir. 1991), outside the jurisdictionof the United States Court of Appeals for the Second Circuit. (5) Motions to reopenand motions to reconsider are separate and distinct motions with differentrequirements -- a motion to reconsider requests that the original decisionbe reexamined in light of additional legal arguments, a change of law,or an argument or aspect of the case that was overlooked, while a motionto reopen seeks to reopen proceedings so that new evidence can be presentedand a new decision entered on a different factual record, normally aftera further evidentiary hearing. (6) The Board of ImmigrationAppeals has not held that a respondent who has been denied relief undersection 212(c) of the Act is precluded from having the original decisionreconsidered. (7) The Board is notfavorably disposed to the practice of waiting until the conclusion of the administrative appeal process to file a motion that seeks to offeradditional evidence regarding the matter previously in issue. (8) The Board has notheld that the existence of outstanding equities creates a right to havethe consequences resulting from particularly serious criminal misconductwaived or that such equities compel a grant of discretionary relief rather,the Board has noted just the opposite (i.e., that the nature of the adversefactor or factors may ultimately be determinative of whether relief undersection 212(c) of the Act is granted).

D-L- & A-M-, 20 I&N Dec. 409 (BIA 1991) ID 3162 (PDF) Applicants for admissionto the United States, who were not traveling in transit without visa status,are not excludable under section 212(a)(19) of the Immigration and NationalityAct, 8 U.S.C. § 1182(a)(19) (1988), where the applicants did notpresent or intend to present fraudulent visas or travel documents or documentscontaining willful misrepresentations to an authorized official of theUnited States Government at the time of their attempted entry. Matterof Shirdel, 19 I&N Dec. 33 (BIA 1984), distinguished.

K-, 20 I&N Dec. 418 (BIA 1991) ID 3163 (PDF) The language of section515(a)(2) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat.4978, 5053 (enacted Nov. 29, 1990), amending section 243(h)(2) of theImmigration and Nationality Act, 8 U.S.C. § 1253(h)(2) (1988), expresslystates that an alien convicted of an aggravated felony shall be consideredto have committed a "particularly serious crime" for purposesof section 243(h)(2)(B), thereby obviating the need for a case-by-casedetermination of this question, but does not alter the conclusion in Matterof Carballe, 19 I&N Dec. 357 (BIA 1986), modified on other grounds,Matter of Gonzalez, 19 I&N Dec. 682 (BIA 1988), that under section243(h)(2)(B)all aliens convicted of "particularly serious crimes" necessarilyconstitute a "danger to the community." Matter of U-M-, 20 I&NDec. 3152 (BIA 1991), aff'd, 989 F.2d 1085 (9th Cir. 1993) Matter ofGonzalez, supra Matter of Garcia-Garrocho, 19 I&N Dec. 423 (BIA 1986),modified on other grounds, Matter of Gonzalez, supra and Matter of Carballe,supra, clarified.

B-, 20 I&N Dec. 427 (BIA 1991) ID 3164 (PDF) (1) The filing with animmigration judge of an application for asylum in exclusion or deportationproceedings is not a continuation or a mere updating of an applicationpreviously filed with the Immigration and Naturalization Service but is,in effect, a new application. (2) Although the applicantin exclusion proceedings had previously filed an asylum application withthe Service in 1980 under the interim asylum regulations, the filing of the application with the immigration judge on April 22, 1991, brings itwithin the purview of the present asylum regulations at 8 C.F.R. §208 (1991). (3) The applicant inexclusion proceedings has been convicted of a particularly serious crime,i.e., aggravated battery, and, therefore, by operation of law, he is ineligiblefor asylum pursuant to 8 C.F.R. § 208.14(c)(1) (1991) and for withholdingof exclusion and deportation under section 243(h)(2)(B) of the Immigrationand Nationality Act, 8 U.S.C. § 1253(h)(2)(B) (Supp. II 1990).

P-C-M-, 20 I&N Dec. 432 (BIA 1991) ID 3165 (PDF) (1) An immigration judgemay not redetermine custody status on his own motion and shall do so onlyupon application from the respondent or his representative. (2) The potential difficultiesthat the Immigration and Naturalization Service may face in executinga final order of deportation because of the conditions existing in thecountry of deportation are not a proper consideration for an immigrationjudge in redetermining an alien's custody status.

BART, 20 I&N Dec. 436 (BIA 1992) ID 3166 (PDF) Issuance of a bad checkin violation of section 16-9-20(a) of the Georgia Code is a crime involvingmoral turpitude because Georgia case law clearly establishes that guiltyknowledge, as evidenced by an intent to defraud, is an essential elementof the offense.

BALAO, 20 I&N Dec. 440 (BIA 1992) ID 3167 (PDF) Intent to defraud isnot an essential element of the crime of passing bad checks under title18, section 4105(a)(1) of the Pennsylvania Consolidated Statutes and,therefore, a conviction under this law is not for a crime involving moralturpitude.

SILVA-RODRIGUEZ, 20 I&N Dec. 448 (BIA 1992) ID 3168 (PDF) An immigration judgein deportation proceedings did not act with good cause by granting a 1-yearcontinuance so that the respondent would have more time to establish rehabilitationin furtherance of his application for a waiver of inadmissibility undersection 212(c) of the Immigration and Nationality Act, 8 U.S.C. §1182(c) (Supp. II 1990). Matter of Garcia-Reyes, 19 I&N Dec. 830 (BIA1988), followed.

CORREA-GARCES, 20 I&N Dec. 451 (BIA 1992) ID 3169 (PDF) (1) The immigration judgehas no authority to extend the appeal period provided for by federal regulationsat 8 C.F.R. § 242.21(a) (1991). (2) The authority togrant a stay of deportation once an order of deportation is entered againstan alien is generally vested in the district director under federal regulationsat 8 C.F.R. § 243.4 (1991), and the immigration judge's authorityis limited to granting a stay in connection with a motion to reopen ora motion to reconsider, or in connection with an appeal from a decisionon such a motion. (3) A conviction whichforms the basis of a finding that an alien lacks good moral characterunder section 101(f) of the Immigration and Nationality Act, 8 U.S.C.§ 1101(f) (1988), need not be the basis upon which the alien is founddeportable. (4) A conviction formaking false statements on an application for a United States passportin another person's name, and for willfully, knowingly, and with intentto deceive, falsely representing a social security account number as one'sown, for the purpose of fraudulently obtaining a passport in another person'sname, is for a crime involving moral turpitude.

R-O-, 20 I&N Dec. 455 (BIA 1992) ID 3170 (PDF) (1) A guerrilla organization'sattempt to coerce a person into performing military service does not,without more, constitute persecution on account of political opinion.INS v. Elias Zacarias, U.S. 502, 112 S. Ct. 812 (1992), followed. (2) A victim of forcedrecruitment must show that he is being persecuted on account of his politicalopinion, and that his persecution is not solely the result of the guerrillas'aim in seeking to fill their ranks in order to carry out their war withthe government and pursue their political goal, their political motivebeing irrelevant. INS v. Zacarias, supra, followed. (3) The respondent hasnot established a well-founded fear of persecution by the Government ofEl Salvador on account of political opinion due to his involvement withthe guerrillas, where the Government does have the legitimate right toinvestigate the respondent regarding his suspected activities on behalfof the guerrillas and to criminally prosecute and punish him under itslaws for any activities found to be illegal, and there is no evidencethat the respondent has received any threats from the Government on thegrounds of political opinion, or otherwise. Blanco-Lopez v. INS, 858 F.2d531 (9th Cir. 1988), distinguished.

CARBAJAL, 20 I&N Dec. 461 (BIA 1992) ID 3171 (PDF) (1) A visa petition isconsidered filed on the date on which the petition and the appropriatefee are submitted to the Immigration and Naturalization Service and thepetition is stamped with the time and date pursuant to 8 C.F.R. §§103.2(a) and 204.1(a) (1991). (2) When the Servicereturns a visa petition to the petitioner because at the time she filedthe visa petition she was not qualified to accord preference classificationto the beneficiary, the petitioner may refile the previously submittedvisa petition with the Service once she becomes qualified. (3) When a previouslyfiled visa petition is resubmitted to the Service, stamped with the timeand date, and accompanied by the appropriate fee, it is a new petitionand a new filing date has been effected which, if the petition is approved,establishes the priority date for the beneficiary pursuant to 8 C.F.R.§ 245.1(f)(2) (1991).

COELHO, 20 I&N Dec. 464 (BIA 1992) ID 3172 (PDF) (1) The Board of Immigration Appeals may deny a motion to remand or motion to reopen proceedings where a prima facie case for the relief sought has not been established or in the absence of previously unavailable, material evidence or where the ultimate relief is discretionary, if the relief would not be granted in the exercise of discretion. (2) A party who seeksa remand or to reopen proceedings to pursue relief bears a "heavyburden" of proving that if proceedings before the immigration judgewere reopened, with all the attendant delays, the new evidence would likelychange the result in the case.

ARTHUR, 20 I&N Dec. 475 (BIA 1992), modified, 23 I&N Dec. 253 (BIA 2002) ID 3173 (PDF) (1) Under the rule ofMatter of Garcia, 16 I&N Dec. 653 (BIA 1978), a motion to reopen shouldgenerally be granted in cases involving an application for adjustmentof status filed simultaneously with a visa petition, notwithstanding thefact that the visa petition has not yet been adjudicated, unless the applicantfor adjustment appears clearly ineligible for the preference classificationclaimed in the underlying petition. (2) Subsequent to ourdecision 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 adjustinghis status based on a marriage that was entered into after the commencementof proceedings to determine his right to enter or remain in the UnitedStates and to bar the approval of a visa petition to accord immediaterelative or preference status based upon such marriage until after thebeneficiary of the petition has resided outside the United States fora 2-year period following the marriage, unless the alien establishes "byclear and convincing evidence to the satisfaction of the Attorney Generalthat the marriage was entered into in good faith and . . . was not enteredinto for the purpose of procuring the alien's entry as an immigrant." (3) The presumption establishedin Matter of Garcia, supra, that for purposes of reopening, the relationshipclaimed on an unadjudicated visa petition filed simultaneously with anapplication for adjustment of status is bona fide unless clear ineligibilityis apparent in the record is inconsistent and incompatible with the congressionallymandated presumption that marriages entered into after the institutionof proceedings are fraudulent. (4) Given the petitioner'sburden of establishing the bona fides of a marriage described in section245(e) of the Act by clear and convincing evidence, an inquiry by an immigrationjudge or this Board into whether the evidence submitted in support ofa visa petition based upon such marriage is sufficient to demonstrateprima facie eligibility for the preference classification sought wouldnecessarily involve an in-depth examination into the merits of the petition,constituting a substantial and unwarranted intrusion into the districtdirector's authority over the adjudication of visa petitions. (5) Motions to reopenfor consideration of applications for adjustment of status based uponunadjudicated visa petitions which fall within the ambit of sections 204(g)and 245(e) of the Act will not be granted. Matter of Garcia, supra, modified.

RAHMAN, 20 I&N Dec. 480 (BIA 1992) ID 3174 (PDF) (1) An immigration judge'sdiscretion to change venue in exclusion and deportation proceedings issubject to the existence of good cause for such a change, and good causeis determined by balancing the relevant factors, including administrativeconvenience, expeditious treatment of the case, location of witnesses,cost of transporting witnesses or evidence to a new location, and factorscommonly associated with the alien's place of residence. (2) While factors commonlyassociated with an applicant's place of residence are relevant to thequestion of proper venue, the mere fact that an applicant in exclusionproceedings allegedly resides or wishes to reside in another city, withouta showing of other significant factors associated with such residence,is insufficient cause to outweigh the Immigration and Naturalization Service'sopposition to a motion for change of venue, particularly where the Servicehas demonstrated that it would be prejudiced by such a change. (3) The Government isnot required to accommodate the applicant's choice of a distant attorneyand his acquisition of an interpreter by changing venue at considerableexpense, especially where there is no showing that local counsel is unavailableor that an interpreter cannot otherwise be obtained. (4) An immigration judge'sorder changing the venue of the hearing does not necessarily affect theplace where the alien may be detained, because an immigration judge hasno authority over the place of detention. (5) An immigration judgemay grant a change of venue only upon motion by one of the parties andonly after the other party has been given notice and an opportunity torespond.

BALSILLIE, 20 I&N Dec. 486 (BIA 1992) ID 3175 (PDF) (1) The Immigration andNationality Act provides two means by which the conditional basis of aconditional permanent resident's status may be removed: the alien andthe United States citizen spouse may file a Joint Petition to Remove theConditional Basis of Alien's Permanent Resident Status (Form I-751) undersection 216(c)(1) of the Act, 8 U.S.C. § 1186(c)(1)(Supp. II 1990),or the alien may file an Application for Waiver of Requirement to FileJoint Petition for Removal of Conditions (Form I-752) under section 216(c)(4). (2) Section 216(c)(4)of the Act, as amended, and the corresponding regulations at 8 C.F.R.§216.5 (1992) provide three separate waivers of the requirement tofile a joint petition for removal of the conditional basis of a conditionalpermanent resident's status.

A-A-, 20 I&N Dec. 492 (BIA 1992) ID 3176 (PDF) (1) The term "aggravatedfelony," as defined in section 101(a)(43) of the Immigration andNationality Act, 8 U.S.C. § 1101(a)(43) (Supp. II 1990), encompassesall convictions described therein whether conviction occurred on, before,or after the date of enactment of the Anti-Drug Abuse Act of 1988, Pub.L. No. 100-690, 102 Stat. 4181 (enacted Nov. 18, 1988), with the exceptionof the crimes that were introduced into the aggravated felony definitionby the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (effectiveNov. 29, 1990), which are defined as aggravated felonies only if committedon or after November 29, 1990, and unless otherwise limited in its applicationunder a separate provision of the Immigration and Nationality Act. (2) The statutory barto relief found in section 212(c) of the Immigration and Nationality Act,8 U.S.C. § 1182(c) (Supp. II 1990), added by the Immigration Actof 1990, and further amended by the Miscellaneous and Technical Immigrationand Naturalization Amendments of 1991, Pub. L. No. 102-232, 105 Stat.1733 (enacted Dec. 12, 1991), barring relief to an alien convicted ofone or more aggravated felonies who served for such felony or feloniesa term of imprisonment of at least 5 years, applies to all aggravated felony convictions, as definedin section 101(a)(43) of the Act, regardless of when conviction occurred,with the exception of the crimes added to the aggravated felony definitionby the Immigration Act of 1990, which are aggravated felonies only ifcommitted on or after November 29, 1990. (3) The Attorney Generalhas determined that the effective date language of section 511(b) of theImmigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5052, statingthat the statutory bar of section 212(c) of the Act "shall applyto admissions occurring after the date of the enactment of [the 1990]Act," refers to applications for such relief submitted after November29, 1990, whether at a port of entry before a district director or insubsequent proceedings before an immigration judge. (4) Both the statutorybar of section 208(d) of the Act, 8 U.S.C. 1158(d) (Supp. II 1990), barringan alien convicted of an aggravated felony from applying for or beinggranted asylum, and the amendment to section 243 (h) (2) of the Act, 8U.S.C. § 1253(h)(2) (Supp. II 1990), providing that an alien convictedof an aggravated felony shall be considered to have committed a particularlyserious crime, attach to all aggravated felony convictions, whether enteredbefore, on, or after November 29, 1990--except as that term relates tothe crimes added to the aggravated felony definition by the ImmigrationAct of 1990, which are aggravated felonies only if committed on or afterNovember 29, 1990--and apply to all applications for asylum and withholdingof deportation made on or after November 29, 1990. Matter of U-M-, 20 I&N Dec. 3152 (BIA 1991), aff'd, 989 F.2d 1085 (9th Cir. 1993), superseded.

ADETIBA, 20 I&N Dec. 506 (BIA 1992) ID 3177 (PDF) (1) The Board of ImmigrationAppeals follows its historical approach as to what constitutes a "singlescheme of criminal misconduct" within the meaning of section 241(a)(2)(A)(ii)of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(A)(ii)(Supp. II 1990), by interpreting the statutory language to mean that whenan alien has performed an act, which, in and of itself constitutes a complete,individual, and distinct crime, he is deportable when he again commitssuch an act, even though one may closely follow the other, be similarin character, and even be part of an overall plan of criminal misconductsuch an approach recognizes that the statutory language was meant to distinguishcases where there are separate and distinct crimes, but they are performedin furtherance of a single criminal episode, such as where one crime constitutesa lesser offense of another or where two crimes flow from and are thenatural consequence of a single act of criminal misconduct. Pacheco v.INS, 546 F.2d 448 (1st Cir. 1976), cert. denied, 430 U.S. 985 (1977),followed. (2) Outside their respectivecircuits, the Board will not follow the more expansive interpretationof the statutory language in question as set forth in Gonzalez-Sandovalv. INS, 910 F.2d 614 (9th Cir. 1990) Nason v. INS, 394 F.2d 223 (2d Cir.),cert. denied, 393 U.S. 830 (1968) and Sawkow v. INS, 314 F.2d 34 (3dCir. 1963). (3) The separate crimesof which the respondent was convicted, namely using credit cards in thenames of different people, with intent to defraud, and from which he obtainedthings of value for each card during a period of time, did not arise outof a "single scheme of criminal misconduct" within the meaningof section 241(a)(2)(A)(ii) of the Act, notwithstanding that the crimeswere committed pursuant to an elaborate plan and the modus operandi wasthe same in each instance.

HOU, 20 I&N Dec. 513 (BIA 1992) ID 3178 (PDF) A conviction for an attemptedfirearms offense will not support a charge of deportability under section241(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(C)(Supp. II 1990).

BELTRAN, 20 I&N Dec. 521 (BIA1992) ID 3179 (PDF) A conviction for solicitationto commit a crime relating to a controlled substance renders an aliendeportable under section 241(a)(11) of the Immigration and NationalityAct, 8 U.S.C. §1251(a)(11) (1988), as an alien convicted of a violationof a law relating to a controlled substance.

C-, 20 I&N Dec. 529 (BIA1992) ID 3180 (PDF) (1) The analysis presentedin Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982), and followed inBeltran-Zavala v. INS, 912 F.2d 1027 (9th Cir. 1990), among other cases,for determining whether a conviction is for a "particularly seriouscrime" has been superseded in part by Congress through amendmentof section 243(h)(2) of the Immigration and Nationality Act, 8 U.S.C.§ 1253(h)(2) (1988), by section 515(a)(2) of the Immigration Actof 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5053 (effective Nov. 29,1990). (2) With respect to anyapplication for withholding of deportation made on or after November 29,1990, where the conviction in question is for an aggravated felony withinthe meaning of the Act, the conviction must be deemed to be for a particularlyserious crime without regard to the analysis set forth in Matter of Frentescu,supra. Matter of U-M-, 20 I&N Dec. 3152 (BIA 1991), aff'd, 989 F.2d1085 (9th Cir. 1993) Matter of Gonzalez, 19 I&N Dec. 682 (BIA 1988)Matter of Garcia-Garrocho, 19 I&N Dec. 423 (BIA 1986), modified, Matterof Gonzalez, supra Matter of Carballe, 19 I&N Dec. 357 (BIA 1986),modified, Matter of Gonzalez, supra and Matter of Frentescu, supra, modified,Matter of Gonzalez, supra, modified.

R-R-, 20 I&N Dec. 547 (BIA 1992) ID 3182 (PDF) (1) An alien seekingreopening of proceedings based on his failure to request asylum beforethe completion of deportation proceedings must meet the general motionrequirements, as well as reasonably explain the failure to timely filean asylum application. (2) The Board of ImmigrationAppeals withdraws from Matter of Jean, 17 I&N Dec. 100 (BIA 1979),to the extent that it suggests that an alien who has failed to timelyfile an application for asylum need only demonstrate excusable neglectfor the failure to file in order to obtain the reopening of proceedings.Matter of Jean, supra, modified. (3) The respondent failedto demonstrate prima facie eligibility for asylum based on his refusalto serve in the Nicaraguan military. (4) The Board takes administrativenotice that the Sandinista Party no longer controls the Nicaraguan Government.

L-, 20 I&N Dec. 553 (BIA 1992) ID 3183 (PDF) (1) Under the Visa WaiverPilot Program of section 217 of the Immigration and Nationality Act, 8U.S.C. § 1187 (1988), visitors to the United States from specifiedcountries may stay for up to 90 days without a visa, provided they waiveany right to (1) review or appeal an immigration officer's determinationas to the admissibility of the alien at the port of entry into the UnitedStates, or (2) contest, other than on the basis of an application forasylum, any action for deportation against the alien. (2) Pursuant to 8 C.F.R.§§ 217.4(c) and 242.1(a) and (d) (1992), the regulatory provisionsregarding deportability determinations under section 217 of the Act, proceedingsagainst an alien admitted under the Visa Waiver Pilot Program who hasapplied for asylum in the United States must be commenced with an Orderto Show Cause. (3) The regulations whichthe Immigration and Naturalization Service promulgates have the forceand effect of law and are binding on the Service.

ALARCON, 20 I&N Dec. 557 (BIA 1992) ID 3184 (PDF) (1) A respondent whohas been convicted of two crimes involving moral turpitude not arisingfrom a single scheme of criminal misconduct is inadmissible into the UnitedStates under section 212(a) of the Immigration and Nationality Act, 8U.S.C. § 1182(a) (Supp. II 1990), and is thus ineligible for adjustmentof status under section 245 of the Act, 8 U.S.C. § 1255 (Supp. II1990), unless he is eligible for and should be granted a waiver of inadmissibilityunder section 212(h) of the Act. (2) At the time the respondentfiled his application for a section 212(h) waiver, section 601(d)(4) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5076-77(effective June 1, 1991), required the passage of 15 years from the dateof the deportable offense before an alien could be eligible for a waivertherefore, the respondent's offenses, committed within the 15 years priorto his application, statutorily barred him from qualifying for a section212(h) waiver. (3) The amendments madeto section 212(h) of the Act during the pendency of the respondent's appealto the Board of Immigration Appeals by section 307(f) of the Miscellaneousand Technical Immigration and Naturalization Amendments of 1991, Pub.L. No. 102-232, 105 Stat. 1733 (enacted Dec. 12, 1991) ("1991 Amendments"),are applicable to his application for a waiver of inadmissibility undersection 212(h). (4) The version of section212(h) of the Act under the 1991 Amendments created two categories ofimmigrants eligible for relief therefore, although the respondent isbarred from establishing eligibility as a result of his convictions withinthe past 15 years, he may be eligible for a waiver if he establishes thathe has the requisite relationship to a United States citizen or lawfulpermanent resident and that his exclusion would result in extreme hardshipto that family member.

RAMERIZ-SOMERA, 20 I&N Dec. 564 (BIA 1992) ID 3185 (PDF) (1) The plain languageof section 212(c) of the Immigration and Nationality Act, 8 U.S.C.A. §1182(c)(West Supp. 1992), bars relief under that section to any alien who hasbeen convicted of an aggravated felony or felonies and who "has served,"not merely been sentenced to, a term of imprisonment of at least 5 yearsfor his aggravated felony or felonies. (2) Although the respondentwas sentenced to a 15-year term of imprisonment on his aggravated felonyconviction, he is not at this time statutorily ineligible for section212(c) relief because he has not yet actually served 5 years of this sentence.

PAPAZYAN, 20 I&N Dec. 568 (BIA 1992) ID 3186 (PDF) (1) The Immigration Actof 1990, Pub. L. No. 101-649, 104 Stat. 4978, amended and redesignatedthe exclusion grounds found at section 212(a) of the Immigration and NationalityAct, 8 U.S.C. § 1182(a) (1988) these amendments apply to individualswho entered the United States on or after June 1, 1991. (2) The Immigration Actof 1990 amended and redesignated the deportation grounds found at section241(a) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1988) these amendments apply to aliens to whom notice of deportationproceedings has been provided on or after March 1, 1991. (3) In light of the effectivedates for the revised and redesignated exclusion and deportation groundsmade by the Immigration Act of 1990, an alien in deportation proceedingswho was provided with notice on or after March 1, 1991, is properly chargedwith deportability under the redesignated section 241(a)(1)(A) of theAct, 8 U.S.C. § 1251(a)(1)(A) (Supp. II 1990), as an alien excludableat time of his last entry in 1987 under the appropriate exclusion groundsin their form prior to redesignation by the Immigration Act of 1990.

T-, 20 I&N Dec. 571 (BIA 1992) ID 3187 (PDF) (1) The Government ofSri Lanka does not persecute ethnic Sri Lankan Tamils on the basis oftheir ethnicity or "on account of" their championing of Tamilinterests or political rights. (2) Neither the reliefof asylum nor of withholding of deportation provides for refuge "onaccount of" human rights abuses unconnected to the grounds enumeratedin the Immigration and Nationality Act, i.e., race, religion, nationality,membership in a particular social group, or political opinion. (3) An ethnic Tamil alienfrom Sri Lanka who was forced to assist the Liberation Tigers of TamilEelam ("LTTE"), a separatist Tamil terrorist group, under threatof harm, did not establish that the LTTE was motivated to punish him becauseof his political views or persecute him on account of any of the othergrounds enumerated in the Act. (4) In light of the historicalcontext of the Sri Lankan civil war, an ethnic Tamil alien suspected ofhaving ties to the terrorist group LTTE failed to demonstrate that thehuman rights abuses he suffered at the hands of the Sri Lankan securityforces, Indian Peacekeeping Force, and allied Tamil organizations in reactionto LTTE terrorism amounted to persecution on account of any of the grounds enumerated in the Act.

SERNA, 20 I&N Dec. 579 (BIA 1992) ID 3188 (PDF) (1) Neither the seriousnessof a criminal offense nor the severity of the sentence imposed thereforis determinative of whether a crime involves moral turpitude. (2) A conviction under18 U.S.C. § 1546 (1982) for possession of an altered immigrationdocument with knowledge that it was altered, but without its use or proofof any intent to use it unlawfully, is not a conviction for a crime involvingmoral turpitude.

RODRIGUEZ-CORTES, 20 I&N Dec. 587 (BIA 1992) ID 3189 (PDF) (1) The sentence enhancementprovision of section 12022(a) of the California Penal Code, which allows for the imposition of an additional and consecutive term of imprisonmentupon a person convicted of a felony where any one of the principals of the felony was armed with a firearm, does not create a separate offense, but rather imposes additional punishment, and therefore does not constitutea conviction under California law. (2) An alien, who wasconvicted of five counts of attempted murder in the second degree andwhose sentence under one count was enhanced pursuant to section 12022(a) of the California Penal Code because a codefendant was armed with a firearmin the attempted commission of the felony, has not been convicted of afirearm offense under California law and is not deportable under section241(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(C)(Supp. III 1991), as an alien convicted at any time after entry of a firearmviolation. (3) An alien whose sentenceenhancement pursuant to section 12022(a) of the California Penal Codeis not a conviction under California law and who is not deportable undersection 241(a)(2)(C) of the Act, as an alien convicted at any time afterentry of a firearm violation, is eligible to apply for a waiver of inadmissibilityunder section 212(c) of the Act, 8 U.S.C. § 1182(c) (Supp. III 1991).

M/V SARU MERU, 20 I&N Dec. 592 (BIA 1992) ID 3190 (PDF) (1) Fine liability undersection 273(d) of the Immigration and Nationality Act, 8 U.S.C. §1323(d) (1988), is absolute for bringing a stowaway to the United Statesand failing to detain him until he has been inspected by an immigrationofficer, even when the carrier did not know about the stowaway until afterhe was apprehended ashore. (2) There is no provisionfor mitigation of fines imposed under section 273(d) of the Act. (3) The Immigration andNaturalization Service can refrain from instituting fine proceedings,but that is a matter of prosecutorial discretion over which the Boardof Immigration Appeals has no jurisdiction. (4) The Service's OperationsInstructions are not binding on the Board, but the Board can adopt thepolicies that are manifested in the Operations Instructions, which ithas done with respect to Operations Instructions 273.1 requiring the Serviceto secure affidavits to support the record for fine proceedings undersection 273(d) of the Act. (5) In cases where thereis doubt about whether a carrier has brought stowaways to the United Statesand permitted them to land illegally, the Service has the burden of proofto establish those facts with persuasive evidence.

RAINFORD, 20 I&N Dec. 598 (BIA 1992) ID 3191 (PDF) A respondent who is convictedof criminal possession of a weapon is deportable under section 241(a)(2)(C)of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(C)(Supp. II 1990) however, such a conviction does not preclude a findingof admissibility in connection with an application for adjustment of statusunder section 245(a) of the Act, 8 U.S.C. § 1255(a) (1988), and itmay not serve as a ground of deportability if the respondent's statusis adjusted to that of a lawful permanent resident. Matter of Rafipour,16 I&N Dec. 470 (BIA 1978), followed. Matter of V-, 1 I&N Dec.293 (BIA 1942), distinguished.

MONTENEGRO, 20 I&N Dec. 603 (BIA 1992) ID 3192 (PDF) (1) Section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (Supp. III1991), is ineffective to remove deportability under section 241(a)(2)(C)of the Act, 8 U.S.C. §1251(a)(2)(C) (Supp. III 1991), for convictionof a firearms violation, even where the firearmsviolation is also a crimeinvolving moral turpitude within the scope of section 212(a)(2)(A)(i)(I)of the Act. Matter of Hernandez-Casillas, 20 I&N Dec. 3147 (BIA 1990A.G. 1991), aff'd, 983 F.2d 231 (5th Cir. 1993) and Matter of Granados,16 I&N Dec. 726 (BIA 1979), aff'd, 624 F.2d 191 (9th Cir. 1980), followed. (2) Matter of Meza, 20 I&N Dec. 3146 (BIA 1991), is limited to the question of eligibilityfor section 212(c) relief in the case of a conviction for a drug-traffickingaggravated felony and is based on the specific amendment to section 212(c)regarding aggravated felonies it does not alter the general rule representedin Matter of Wadud, 19 I&N Dec. 182 (BIA 1984), and Matter of Granados,supra, and reaffirmed in Matter of Hernandez-Casillas, supra, that section212(c) relief is available in deportation proceedings only to those alienswho have been found deportable under a ground of deportability for whichthere is a comparable ground of excludability.

H-, 20 I&N Dec. 611 (BIA 1992) ID 3193 (PDF) Proceedings against analien who has been refused admission under the Visa Waiver Pilot Programand who has applied for asylum in the United States must be commencedwith a Notice to Applicant for Admission Detained for Hearing before ImmigrationJudge (Form I-122).

PEREZ-CONTRERAS, 20 I&N Dec. 615 (BIA 1992) ID 3194 (PDF) (1) A conviction forassault in the third degree under section 9A.36.031(1)(f) of the RevisedCode of Washington is not a firearm offense where use of a firearm isnot an element of the offense. (2) A conviction forassault in the third degree under section 9A.36.031(1)(f) of the RevisedCode of Washington is not a crime involving moral turpitude where intentionalor reckless conduct is excluded from the statutory definition of the crime. (3) The Board withdrawsfrom Matter of Baker, 15 I&N Dec. 50 (BIA 1974), to the extent itholds that assault in the third degree resulting in great bodily harmis a crime involving moral turpitude without regard to the existence ofintentional or reckless conduct.

R-, 20 I&N Dec. 621 (BIA 1992) ID 3195 (PDF) (1) The fact that a Sikhfrom the state of Punjab in India was beaten and threatened by Sikh militantsbecause he resisted their recruitment efforts did not establish persecutionon account of political opinion or any of the other grounds enumeratedin the Immigration and Nationality Act. (2) The mistreatmentof a Sikh in Punjab by Indian police in the course of an investigationdoes not establish eligibility for asylum or withholding of exclusionand deportation where the purpose of the mistreatment was to obtain informationabout Sikh militants who sought the violent overthrow of the Indian Governmentrather than to punish him because of his political opinions or merelybecause he was a Sikh. (3) While the Sikh applicantfor asylum may fear returning to Punjab because of the mistreatment heexperienced there at the hands of the Indian police, he has not demonstratedcountry- wide persecution or mistreatment of Sikhs by the central governmentor other Indian groups, and therefore he has not established a well-foundedfear of persecution in India. (4) Absent a threat ofpersecution on a country-wide basis in India and in light of the factualcircumstances of his case, a Sikh applicant does not merit a grant ofasylum in the exercise of discretion even if it were assumed that he sufferedpast persecution in Punjab.

FLORIDA RURAL LEGAL SERVICES, INC., 20 I&N Dec. 639 (BIA 1993) ID 3196 (PDF) An organization requestingrecognition or accreditation of its representatives, which has physicallyseparate offices, must demonstrate by individual application that eachoffice independently has at its disposal adequate knowledge, information,and experience in immigration law and procedure and that it makes onlynominal charges and assesses no excessive membership dues for personsgiven assistance.

ELIS, 20 I&N Dec. 641 (BIA 1993) ID 3197 (PDF) In bond proceedings governedby section 242(a)(2)(B) of the Immigration and Nationality Act, 8 U.S.C.§ 1252(a)(2)(B) (Supp. III 1991), the alien bears the burden of showingthat he is lawfully admitted to the United States, not a threat to thecommunity, and likely to appear before any scheduled hearings. Matterof De La Cruz, 20 I&N Dec. 3155 (BIA 1991), modified.

GONZALEZ-LOPEZ, 20 I&N Dec. 644 (BIA 1993) ID 3198 (PDF) (1) The Board of ImmigrationAppeals is without authority to consider an appeal from an in absentiaorder made under the deportation procedures specified under section 242(b)(1)of the Immigration and Nationality Act, 8 U.S.C. § 1252(b)(1) (Supp.II 1990), and section 242B(c)(1) of the Act, 8 U.S.C. § 1252b(c)(1)(Supp. III 1991), where section 242B(c)(3) of the Act clearly shows thatany in absentia order made under these new deportation procedures mayonly be rescinded by filing a motion to reopen with the immigration judge. (2) An alien may takean appeal to the Board of Immigration Appeals from an immigration judge'sdenial of a motion to reopen filed for purposes of seeking the rescissionof the immigration judge's in absentia order pursuant to section 242B(c)(3)of the Act. (3) An alien may properlyappeal an immigration judge's in absentia order to the Board of ImmigrationAppeals, or file a motion to reopen with the immigration judge in thecircumstances set forth in Matter of Haim, 19 I&N Dec. 641 (BIA 1988),if the in absentia order was rendered in exclusion proceedings or in deportationproceedings where service or attempted service of the notice of the hearingfor which the alien failed to appear was made prior to June 13, 1992,the effective date for the new deportation procedures specified in section242B of the Act.

CHOW, 20 I&N Dec. 647 (BIA 1993) ID 3199 (PDF) (1) Section 241(a)(2)(C)of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(C)(Supp. II 1990), relating to convictions for certain firearms offenses,represents the enactment of a new statutory provision that completelysupersedes all former versions of that deportation ground and is not limitedregarding its applicability to convictions which predated its enactment,there being no restrictions regarding the dates in which a convictionmust occur in order to be included within the scope of the new statute. (2) An alien deportableunder section 241(a)(2)of the Act on the basis of his conviction for afirearms offense is ineligible for relief from deportation under section212(c) of the Act, 8 U.S.C. § 1182(c) (Supp. III 1991), because thereis no exclusion ground corresponding to the deportation ground for convictionof a firearms offense. Matter of Montenegro, 20 I&N Dec. 3192 (BIA1992) Matter of Hernandez-Casillas, 20 I&N Dec. 3147 (BIA 1990 A.G.1991), aff'd, 983 F.2d 231 (5th Cir. 1993) Matter of Granados, 16 I&NDec. 726 (BIA 1979), aff'd, 624 F.2d 191 (9th Cir. 1980), followed.

K-L-, 20 I&N Dec. 654 (BIA 1993) ID 3200 (PDF) (1) A conviction under18 U.S.C. § 924(c)(1) (Supp. II 1990) for use of a firearm duringa drug trafficking crime or crime of violence is a conviction for immigrationpurposes because this statute creates distinct offenses separate fromthe underlying offenses, rather than merely enabling penalty enhancement.Matter of Rodriguez-Cortes, 20 I&N Dec. 3189 (BIA 1992), distinguished. (2) An alien convictedof use of a firearm during a drug trafficking crime is deportable undersection 241(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C.§ 1251(a)(2)(C) (Supp. III 1991), as an alien convicted at any timeafter entry of a firearm violation, and under section 241(a)(2)(A)(iii)of the Act, as an alien convicted of an aggravated felony.

P-F-, 20 I&N Dec. 661 (BIA 1993) ID 3201 (PDF) An alien convicted ofthe first degree felonies of armed burglary and robbery with a firearmunder sections 810.02 and 812.13 of the Florida Statutes was convictedof firearm offenses for the purpose of applying section 241(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(C) (Supp.III 1991), where the use of a firearm was an essential element of thecrimes, i.e., the use of a firearm elevated the crimes to first degreefelonies and triggered a mandatory minimum sentence as distinguished froma statutory sentence enhancement.

LOPEZ-AMARO, 20 I&N Dec. 668 (BIA 1993) ID 3202 (PDF) (1) Although section775.087 of the Florida Statutes is, on its face, a penalty enhancementprovision designed to raise the penalty for conviction of a felony wherethe felony is committed with the use of a weapon or firearm, under Floridacaselaw, use of a firearm becomes an element of the substantive offenseof first degree murder with a firearm where the elements of murder undersection 782.04 of the Florida Statutes and of use of a firearm under section775.087 of the Florida Statutes are charged and proven. (2) A conviction forfirst degree murder with a firearm in violation of sections 782.04 and775.087 of the Florida Statutes constitutes a firearms offense withinthe meaning of section 241(a)(2)(C) of the Immigration and NationalityAct, 8 U.S.C. § 1251(a)(2)(C) (Supp. III 1991), where the use of a firearm is deemed to be an element of the defendant's substantive offense. Matter of Rodriguez-Cortes, 20 I&N Dec. 3189 (BIA 1992), distinguished.

ISBER, 20 I&N Dec. 676 (BIA 1993) ID 3203 (PDF) Section 204(c) of theImmigration and Nationality Act, 8 U.S.C. § 1154(c) (1988), doesnot preclude approval of a second marital visa petition filed by a petitioneron behalf of the same beneficiary.

H-M-, 20 I&N Dec. 683 (BIA 1993) ID 3204 (PDF) (1) Comparing Acewiczv. United States INS, 984 F.2d 1056 (9th Cir. 1993), with Castillo-Villagrav. INS, 972 F.2d 1017 (9th Cir. 1992), the Board concluded that it maytake administrative notice of the change in conditions of a country inthose cases arising within the jurisdiction of the United States Courtof Appeals for the Ninth Circuit when an alien acknowledges this Board'sauthority to do so and discusses the changed circumstances on appeal. (2) Where an asylum applicantfocuses his application on past persecution, the requirement to show thatthere is little likelihood of future persecution can be satisfied by takingadministrative notice of the change in circumstances in the country atissue. (3) Where an asylum applicantviolates currency laws which a government has a legitimate right to enforce,and he suffers harsh treatment as a result, the applicant must show thatthe government in question has punished him "on account of"his political opinion and not for the violation of the currency laws.INS v. Elias-Zacarias, 502 U.S. 478 (1992), followed.

H-, 20 I&N Dec. 693 (Assoc. Comm. 1993) ID 3205 (PDF) (1) An applicant fortemporary resident status under section 245A of the Immigration andNationalityAct, 8 U.S.C. § 1255a (1988), has the burden to establish eligibilityfor the benefit sought by a preponderance of the evidence. 8 C.F.R. §245a.2(d)(5) (1993). The sufficiency of all evidence produced by the applicantwill be judged according to its probative value and credibility. 8 C.F.R.§ 245a.2(d)(6) (1993). (2) Prior to 1982, section265 of the Act, 8 U.S.C. § 1305 (1976), required any alien in theUnited States in a lawful temporary status to notify the Attorney Generalin writing of his address annually and at the expiration of each 3-monthperiod, regardless of whether the address had changed. (3) An alien who failedto comply with the reporting requirements under section 265 was amenableto deportation proceedings, unless he was able to establish that the failurewas reasonably excusable or not willful. Section 266(b) of the Act, 8U.S.C. § 1306(b) (1976). (4) An applicant fortemporary resident status pursuant to section 245A of the Act has establisheda credible claim to willfully violating the reporting requirements undersection 265 of the Act when he has consistently advanced this claim notonly on his initial Application for Status as a Temporary Resident (FormI-687), but also in an affidavit submitted to the Immigration and NaturalizationService, and at his adjustment of status interview. (5) A nonimmigrant studentwho willfully failed to comply with the reporting requirements of section265 of the Act is deemed to have violated his status and thereby to bein an unlawful status for purposes of adjustment under section 245A of the Act. (6) The absence of mandatoryannual and quarterly registration reports from Government files in violationof section 265 of the Act does not warrant a finding that the applicant'sunlawful status was "known to the Government" as of January1, 1982.

SHIH, 20 I&N Dec. 697 (BIA 1993) ID 3206 (PDF) (1) The decision of animmigration judge becomes final immediately upon the waiver of an alien'sright to appeal. (2) The Board of ImmigrationAppeals is without jurisdiction to adjudicate a case in which the alienhas waived the right to appeal.

LI, 20 I&N Dec. 700 (BIA 1993) ID 3207 (PDF) (1) An adopted child,as defined by section 101(b)(1)(E) of the Immigration and NationalityAct, 8 U.S.C. § 1101(b)(1)(E) (1988), may not confer immigrationbenefits upon a natural parent without regard to whether the adopted childhas been accorded or could be accorded immigration benefits by virtueof his or her adoptive status. Matter of Valsamakis, 12 I&N Dec. 421(BIA 1967) and Matter of Lum, 11 I&N Dec. 55 (BIA 1964), overruled.Matter of Kirby, 13 I&N Dec. 173 (BIA 1969), modified. (2) The petitioner, whowas an adopted child under the immigration laws, may not confer immigrationbenefits upon the beneficiary, his natural sibling, because their commonnatural parent no longer has the status of parent of the adopted childfor immigration purposes.

Z-, 20 I&N Dec. 707 (BIA 1993) ID 3208 (PDF) (1) Under the precedentdecisions of the Board of Immigration Appeals, an "entry" intothe United States under section 101(a)(13) of the Immigration and NationalityAct, 8 U.S.C. § 1101(a)(13) (1988), requires: (1) a crossing intothe territorial limits of the United States, i.e., physical presence(2) (a) inspection and admission by an immigration officer, or (b) actualand intentional evasion of inspection at the nearest inspection pointand (3) freedom from official restraint. (2) In exclusion proceedingswhere the alien has no colorable claim to lawful permanent resident status,the burden of proof is upon the alien to show that he has effected anentry and that exclusion proceedings are therefore improper. (3) The Board found thatthe alien had made an entry into the United States when he debarked fromhis vessel at a place not designated as a port of entry and fled intothe interior undetected, with every apparent intention of evading immigrationinspection. (4) The mere fact thatthe applicant entered an area which was under federal jurisdiction forreasons unrelated to immigration processing does not establish that hewas under "official restraint" and does not render his movementsomething less than an entry.

K-S-, 20 I&N Dec. 715 (BIA 1993) ID 3209 (PDF) In contrast to the precedentialauthority of the case law of a United States circuit court, the Boardof Immigration Appeals is not bound to follow the published decision ofa United States district court in cases arising within the same district.Matter of Fakalata, 18 I&N Dec. 213, 217-18 (BIA 1982) Matter ofMelendez, 16 I&N Dec. 54, 55 (BIA 1976) Matter of Harris, 15 I&NDec. 39, 43 (BIA 1970) and Matter of Amado and Monteiro, 13 I&N Dec.179, 181 (BIA 1969), modified in part.

BAPTIST EDUCATION CENTER, 20 I&N Dec. 723 (BIA 1993) ID 3210 (PDF) (1) In a proceeding under8 C.F.R. § 292.2(c) (1993) to withdraw recognition of an organizationauthorized to practice before the Immigration and Naturalization Serviceand the Board of Immigration Appeals, an organization seeking to retainits status as a recognized organization must demonstrate by clear, unequivocal,and convincing evidence that it continues to satisfy the requirementsfor recognition under 8 C.F.R. § 292.2(a) (1993). (2) The Board terminatedthe respondent's status as a recognized organization under 8 C.F.R. §292.2(c) (1993), having found that the respondent had not establishedby clear, unequivocal, and convincing evidence that it was a non-profitorganization, independent of and separate and apart from its founder andrepresentative, Reverend Marc Azard, a non-lawyer who used the respondent'srecognition as a means of continuing his immigration counseling practiceto receive income for himself.

JIMENEZ-LOPEZ, 20 I&N Dec. 738 (BIA 1993) ID 3211 (PDF) An alien admitted forlawful temporary residence under section 210 of the Immigration and NationalityAct, 8 U.S.C. § 1160 (1988 & Supp. IV 1992), who is paroled intothe United States for criminal prosecution under 8 C.F.R. § 212.5(a)(3)(1990) does not subsequently make an "entry" as that term isdefined under the immigration laws when the Immigration and NaturalizationService adjusts his status to that of a lawful permanent resident undersection 210(a)(2)(B) of the Act, and 8 C.F.R. § 210.5(a)(2) (1990).

CHAVEZ-CALDERON, 20 I&N Dec. 744 (BIA1993) ID 3212 (PDF) The decision of the UnitedStates Supreme Court in Rosenberg v. Fleuti, 374 U.S. 449 (1963), holdingthat a lawful permanent resident's "brief, casual, and innocent"departure from the United States did not meaningfully interrupt his residencein this country, is inapplicable to aliens who are admitted as lawfultemporary residents pursuant to section 210 of the Immigration and NationalityAct, 8 U.S.C. § 1160 (1988 & Supp. IV 1992).

GABRYELSKY, 20 I&N Dec. 750 (BIA 1993) ID 3213 (PDF) (1) A waiver under section212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c)(Supp. IV 1992), may be used in conjunction with an application for adjustmentof status by an alien who is deportable for both drug and weapons offensesthus a lawful permanent resident alien who has been convicted of a weaponsviolation is not ineligible to apply for adjustment of status and mayconcurrently apply for section 212(c) relief to waive his deportabilityarising from his drug conviction. (2) Under the regulationsat 8 C.F.R. § 245.1(e) (1993), an alien may concurrently apply foradjustment of status and section 212(c) relief. (3) An applicant foradjustment of status is not precluded from concurrently applying for awaiver of inadmissibility under section 212(c) of the Act to waive anotherdeportable offense, even though section 212(c) of the Act would not separatelyand independently waive all grounds of deportability.

SOSA-HERNANDEZ, 20 I&N Dec. 758 (BIA 1993) ID 3214 (PDF) (1) A waiver of deportabilityunder section 241(f) of the Immigration and Nationality Act, 8 U.S.C.§ 1251(f) (1988), waives not only the alien's deportability but alsothe underlying fraud or misrepresentation and renders the waiver recipienta lawful permanent resident from the time of his initial entry. (2) The beneficiary ofa waiver of deportability under section 241(f) of the Act may use thetime accrued since the initial granting of lawful permanent residenceto establish eligibility for relief under section 212(c) of the Act, 8U.S.C. § 1182(c) (1988).

G-, 20 I&N Dec. 764 (BIA 1993) ID 3215 (PDF) (1) An alien with nocolorable claim to lawful permanent resident status is properly in exclusionproceedings where he fails to satisfy his burden of proof that he haseffected an "entry" into the United States. Matter of Z-, 20 I&N Dec. 3208 (BIA 1993), followed. (2) The determinationof whether an alien has effected an entry into the United States is amatter appropriately litigated in exclusion proceedings. (3) For purposes of section101(a)(13) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(1988), an "entry" into the United States requires: (1) a crossinginto the territorial limits of the United States, i.e., physical presence(2) (a) inspection and admission by an immigration officer, or (b) actualand intentional evasion of inspection at the nearest inspection pointand (3) freedom from official restraint. Matter of Z-, supra, followed. (4) The mere crossinginto the territorial waters of the United States, whether detected orundetected, has never been held to constitute "physical presence"in this country "free from official restraint." (5) The grounding ofa vessel 100 or more yards off shore with its passengers facing a hazardousjourney to land does not of itself constitute an entry into the UnitedStates. (6) In the case of theGolden Venture, an alien will be found to have been "free from officialrestraint" if he establishes that he was among the first of the ship'soccupants to reach the shore, that he landed on a deserted beach, or thathe managed to flee into a neighboring community. (7) In contrast, an alienwho was escorted off the Golden Venture, pulled from the water by rescuepersonnel, or who landed in the cordoned-off area of the beach after itwas secured will not be found to have been "free from official restraint,"as his movements were restricted to the immediate vicinity of the beachthat was cordoned-off and controlled by the enforcement officers of thevarious governmental organizations present at the site to prevent theship's occupants from absconding. (8) In a case where thereis no clear evidence of the facts determinative of the entry issue, thecase ultimately must be resolved on where the burden of proof lies. (9) Where there is noevidence that an alien, who arrives at other than the nearest inspectionpoint, deliberately surrenders himself to the authorities for immigrationprocessing, or that, once ashore, he seeks them out, voluntarily awaitstheir arrival, or otherwise acts consistently with a desire to submithimself for immigration inspection, actual and intentional evasion ofinspection at the nearest inspection point may be found. (10) Pending a decisionof the Attorney General on asylum and withholding of deportation claimspremised on coercive family planning policies of another country, theBoard will continue to follow Matter of Chang, 20 I&N Dec. 3107 (BIA1989), as precedent in all proceedings involving the same issues. (11) To prevail on aclaim that "extrajudicial" sources compromised the impartialand unbiased nature of an exclusion proceeding, an alien must show howthe immigration judge's decision was affected or how he was prejudicedby these "outside influences."

GOORAHOO, 20 I&N Dec. 782 (BIA 1994) ID 3216 (PDF) (1) In order to obtainpreference status for the beneficiary as his son pursuant to section 203(a)(2)of the Immigration and Nationality Act, 8 U.S.C. § 1153(a)(2) (1988),a petitioner must establish that the beneficiary qualifies or once qualifiedas his "child" within the meaning of section 101(b)(1) of theAct, 8 U.S.C. § 1101(b)(1) (1988). (2) When the countrywhere a child is born eliminates all legal distinctions between illegitimateand legitimate children, all natural children are deemed to be the legitimateoffspring of their natural parents from the time that country's laws arechanged. (3) By virtue of theChildren Born Out of Wedlock (Removal of Discrimination) Act, effectiveMay 18, 1983, Guyana has eliminated all legal distinctions between legitimateand illegitimate children. (4) Children born outof wedlock in Guyana after May 18, 1983, and children who are under theage of 18 prior to that date are deemed legitimate and legitimated children,respectively, pursuant to sections 101(b)(1)(A) and (C) of the Act. Matterof Gouveia, 13 I&N Dec. 604 (BIA 1970), modified.

M-P-, 20 I&N Dec. 786 (BIA 1994) ID 3217 (PDF) When a motion to reopendeportation proceedings is denied, the immigration judge must identifyand fully explain the reasons for such decision otherwise, the partiesare deprived of a fair opportunity to contest the immigration judge'sdetermination on appeal, and the Board of Immigration Appeals is unableto meaningfully exercise its responsibility of reviewing the decision in light of the arguments advanced on appeal.

REYES, 20 I&N Dec. 789 (BIA 1994) ID 3218 (PDF) (1) Although an alienconvicted of an aggravated felony is not precluded from applying for suspensionof deportation, he must still satisfy each of the statutory requirementsfor such relief, including a showing of good moral character. (2) Section 101(f)(8)of the Immigration and Nationality Act, 8 U.S.C. § 1101(f)(8) (1988),previously barred a finding of good moral character in the case of analien who at any time had been convicted of the crime of murder however,section 101(f)(8) of the Act was recently amended and now bars a findingof good moral character in the case of an alien "who at any timehas been convicted of an aggravated felony (as defined in section 101(a)(43))." (3) If an alien is convictedof murder, regardless of the date of the conviction, he is forever precluded from establishing his good moral character under section 101(f)(8) of the Act. (4) If an alien is convictedof an aggravated felony other than murder, as that term is defined in section 101(a)(43) of the Act, he is now forever barred from establishinghis good moral character under section 101(f)(8) of the Act if the aggravatedfelony conviction occurred on or after November 29, 1990. (5) Section 244(e)(2)of the Act, 8 U.S.C. § 1254(e)(2) (1988), expressly and forever barsvoluntary departure to an alien who is deportable because of a convictionfor an aggravated felony if the aggravated felony conviction occurredon or after November 18, 1988.

Y-G-, 20 I&N Dec. 794 (BIA 1994) ID 3219 (PDF) (1) In Matter of Shirdel,19 I&N Dec. 33, 35 (BIA 1984), the Board of Immigration Appeals statedthat the factual basis for a possible finding of excludability under thefirst clause of section 212(a)(19) of the Immigration and NationalityAct, 8 U.S.C. § 1182(a)(19) (1982), relating to fraud or misrepresentationin the procurement of documents, will be closely scrutinized since sucha finding may perpetually bar an alien from admission. (2) Following its amendmentby section 6(a) of the Immigration Marriage Fraud Amendments of 1986,Pub. L. No. 99-639, 100 Stat. 3537, 3543-44 (effective Nov. 10, 1986),and later by section 601(a) of the Immigration Act of 1990, Pub. L. No.101-649, 104 Stat. 4978, 5073-74 (effective Nov. 29, 1990), the exclusionprovision currently at section 212(a)(6)(C)(i) of the Act, 8 U.S.C. §1182(a)(6)(C)(i) (Supp. IV 1992), relating to fraud or misrepresentationin seeking entry into the United States, like the provision relating tofraud or misrepresentation in the procurement of documents, is now bothprospective and retrospective therefore, the factual basis for a possiblefinding of excludability under this provision will be closely scrutinized,since such a finding may perpetually bar an alien from admission. (3) Applicant for admissionto the United States is not excludable under section 212(a)(6)(C)(i) of the Act as an alien who seeks or has sought to procure entry into theUnited States by fraud or the willful misrepresentation of a materialfact where there is inadequate evidence that applicant presented or intendedto present fraudulent documents to a United States Government officialin an attempt to enter on those documents.

ALCANTAR, 20 I&N Dec. 801 (BIA 1994) ID 3220 (PDF) (1) An offense meetsthe definition of a "crime of violence" under 18 U.S.C. §16(a) (1988), for purposes of determining whether it is an "aggravatedfelony" as defined in section 101(a)(43) of the Immigration and NationalityAct, 8 U.S.C. § 1101(a)(43) (Supp. IV 1992), if the offense has asan element the use, attempted use, or threatened use of physical forceagainst the person or property of another. (2) An offense meetsthe definition of a "crime of violence" under 18 U.S.C. §16(b), for purposes of determining whether it is an "aggravated felony"under section 101(a)(43) of the Act, if the offense is a felony and ifthe "nature of the crime -- as elucidated by the generic elementsof the offense -- is such that its commission would ordinarily presenta risk that physical force would be used against the person or propertyof another" irrespective of whether the risk develops or harm actuallyoccurs. (3) The respondent'sconviction for involuntary manslaughter under Ill. Rev. Stat. ch. 38,para. 9-3(a) (1992), for which he was sentenced to 10 years in prison,constituted a "crime of violence" under 18 U.S.C. § 16(b),and an "aggravated felony" as defined in section 101(a)(43)of the Act.

DRYSDALE, 20 I&N Dec. 815 (BIA 1994) ID 3221 (PDF) (1) In bond proceedingsunder section 242(a)(2)(B) of the Immigration and Nationality Act, 8 U.S.C.§ 1252(a)(2)(B) (Supp. IV 1992), there is a presumption against therelease from the Immigration and Naturalization Service's custody of anyalien convicted of an aggravated felony unless the alien demonstratesthat he was lawfully admitted to the United States, is not a threat tothe community, and is likely to appear for any scheduled hearings. (2) If a lawfully admittedalien convicted of an aggravated felony cannot rebut the statutory presumptionthat he is a danger to the community, he should be detained in the custodyof the Service. (3) Once a lawfully admittedalien convicted of an aggravated felony rebuts the presumption that heis a danger to the community, the likelihood that he will appear for futureproceedings becomes relevant in assessing the amount of bond needed tomotivate the respondent to appear.

TOBOSO-ALFONSO, 20 I&N Dec. 819 (BIA 1994) ID 3222 (PDF) An applicant, who hadthe status of being a homosexual, both established his membership in aparticular social group in Cuba and demonstrated that his freedom wasthreatened within the meaning of section 243(h)(1) of the Immigrationand Nationality Act, 8 U.S.C. § 1253(h)(1) (1990), on account ofhis membership in that group.

D-, 20 I&N Dec. 827 (BIA 1994) ID 3223 (PDF) (1) Under Massachusettslaw, an indeterminate sentence of imprisonment is considered to be a sentencefor the maximum term imposed, so that convictions for armed robbery, assaultand battery with a dangerous weapon, and assault with a dangerous weaponwere for aggravated felonies under section 101(a)(43) of the Immigrationand Nationality Act, 8 U.S.C. § 1101(a)(43) (Supp. V 1993), as eachwas a crime of violence for which the alien had a sentence imposed of5 years or more. (2) As aggravated felonies,such convictions rendered the alien statutorily ineligible for asylumunder section 208(d) of the Act, 8 U.S.C. § 1158(d) (Supp. V 1993)and further for withholding of deportation under section 243(h) of theAct, 8 U.S.C. § 1253(h) (1988 & Supp. V 1993) and 8 C.F.R. §208.16 (1994), since they also constituted convictions for particularlyserious crimes.

MENDES, 20 I&N Dec. 833 (BIA 1994) ID 3224 (PDF) (1) Although the Immigrationand Nationality Act provides one ground of deportability where conditionalpermanent resident status has been terminated, it sets forth three meanswhereby such termination may take place, each reviewable in deportationproceedings. (2) Different proceduraland substantive consequences follow from which section of law the Immigrationand Naturalization Service applies in terminating an alien's conditionalpermanent resident status, including the allocation of the burdens ofproof in subsequent deportation proceedings. (3) Where the partiesto a marriage have jointly filed a Petition to Remove the Conditions onResidence (Form I-751) under section 216(c)(1) of the Act, 8 U.S.C. §1186a(c)(1) (1988), but one of the parties withdraws support from thepetition before its adjudication, the joint petition shall be consideredwithdrawn and shall be adjudicated under section 216(c)(2)(A) of the Act. (4) When a respondentin deportation proceedings has not filed an application for a waiver undersection 216(c)(4) of the Act and is prima facie eligible for such relief,the proceedings should be continued in order to grant the respondent areasonable opportunity to file the application before the regional servicecenter director and for the center director to decide the application.

PENA-DIAZ, 20 I&N Dec. 841 (BIA 1994) ID 3225 (PDF) (1) When an alien becomeseligible for a new form of relief from deportation due to the Immigrationand Naturalization Service's intentional lack of enforcement of a finalorder of deportation, it is appropriate to consider this factor in decidingwhether or not the proceedings should be reopened in the exercise of discretionand whether the alien has established statutory eligibility for the reliefsought upon reopening. (2) In granting the respondent'smotion to reopen deportation proceedings, consideration and weight wereaccorded to the Service's affirmative permission for the respondent toremain in the United States, its failure to show any intent to effecthis deportation if the motion were denied, and its inconsistent actionsin granting the respondent's request for deferred action status and subsequentlyopposing his motion to reopen proceedings.

ESQUEDA, 20 I&N Dec. 850 (BIA 1994) ID 3226 (PDF) (1) Section 241(a)(11)of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(11) (1988),which provides for the deportability of any alien "convicted of aviolation of . . . any law or regulation . . . relating to a controlledsubstance," encompasses laws proscribing the use or being under theinfluence of a controlled substance. Matter of Hernandez-Ponce, 19 I&NDec. 613 (BIA 1988), reaffirmed. (2) The element of guiltyknowledge, or mens rea, is not irrelevant to a conviction pursuant tosection 11550 of the California Health and Safety Code for use or beingunder the influence of a controlled substance. (3) Since the languageof the exclusion and deportation grounds of the Act relating to drug convictionswas significantly broadened by the Anti-Drug Abuse Act of 1986, Pub. L.No. 99-570, 100 Stat. 3207, immigration consequences may now result froma conviction under a law relating to a controlled substance that containsno element of mens rea. Lennon v. INS, 527 F.2d 187 (2d Cir. 1975), distinguished.Matter of Davis, 16 I&N Dec. 748 (BIA 1979) Matter of Wolf, 16 I&NDec. 125 (BIA 1977) and Matter of Lennon, 15 I&N Dec. 9 (BIA 1974),vacated, 527 F.2d 187 (2d Cir. 1975), overruled. Matter of Poon, 17 I&NDec. 350 (BIA 1980), aff'd, 707 F.2d 258 (6th Cir. 1983) Matter of Pritchard,16 I&N Dec. 340 (BIA 1977) Matter of Awadh, 15 I&N Dec. 775 (BIA1976) and Matter of Pasquini, 15 I&N Dec. 683 (BIA 1976), aff'd,557 F.2d 536 (5th Cir. 1977), modified.

OKOH, 20 I&N Dec. 864 (BIA 1994) ID 3227 (PDF) The Board of ImmigrationAppeals has no jurisdiction over an alien's motion to reconsider its priordecision in exclusion proceedings after the order is executed and thealien has been excluded and deported from the United States. Matter ofKeyte, 20 I&N Dec. 3128 (BIA 1990), distinguished.

FRANKLIN, 20 I&N Dec. 867 (BIA 1994) ID 3228 (PDF) A conviction for involuntarymanslaughter pursuant to sections 562.016(4) and 565.024(1) of the MissouriRevised Statutes constitutes a crime involving moral turpitude withinthe meaning of section 241(a)(2)(A)(i) of the Immigration and NationalityAct, 8 U.S.C. § 1251(a)(2)(A)(i) (Supp. V 1993), where Missouri lawrequires that the convicted person must have consciously disregarded asubstantial and unjustifiable risk, and that such disregard constituteda gross deviation from the standard of care that a reasonable person wouldexercise in the situation. Matter of Ghunaim, 15 I&N Dec. 269 (BIA1975) Matter of Lopez, 13 I&N Dec. 725 (BIA 1971) Matter of Sanchez-Marin,11 I&N Dec. 264 (BIA 1965) and Matter of B-, 4 I&N Dec. 493 (BIA1951), modified. Matter of Szegedi, 10 I&N Dec. 28 (BIA 1962), overruled.

BURBANO, 20 I&N Dec. 872 (BIA 1994) ID 3229 (PDF) (1) When the Board ofImmigration Appeals reviews a discretionary determination of an immigrationjudge, it relies upon its own independent judgment in deciding the ultimatedisposition of the case. (2) The Board does nothave a de facto policy of denying relief under section 212(c) of the Immigrationand Nationality Act, 8 U.S.C. § 1182(c) (Supp. V 1993), to all aliensconvicted of a serious drug offense however, a serious drug crime willbe accorded due weight, as is consistent with the evolution of the immigrationlaw in this area, and may ultimately be the determinative factor in agiven case.

IGE, 20 I&N Dec. 880 (BIA 1994) ID 3230 (PDF) (1) Where an alien allegesin a motion that extreme hardship will be suffered by his United Statescitizen child were the child to remain in the United States upon his parent'sdeportation, the claim will not be given significant weight absent anaffidavit from the parent stating that it is his intention that the childremain in this country, accompanied by evidence demonstrating that reasonableprovisions will be made for the child's care and support. (2) Assuming a UnitedStates citizen child would not suffer extreme hardship if he accompanieshis parent abroad, any hardship the child might face if left in the UnitedStates is the result of parental choice, not of the parent's deportation.

ANDERSON, 20 I&N Dec. 888 (BIA 1994) ID 3231 (PDF) (1) A conditional permanentresident alien who seeks to remove the conditional basis of that statusby means of a waiver under section 216(c)(4) of the Immigration and NationalityAct, 8 U.S.C. § 1186a(c)(4) (1988), should apply for any applicablewaiver provided under that section. (2) An alien whose applicationfor a specific waiver under section 216(c)(4) of the Act has been deniedby the Immigration and Naturalization Service may not seek considerationof an alternative waiver under that section in deportation proceedingsbefore the immigration judge. (3) Where an alien becomeseligible for an additional waiver under section 216(c)(4) of the Act dueto changed circumstances, the proceedings may be continued in order togive the alien a reasonable opportunity to submit an application to theService. (4) Inasmuch as the Boardof Immigration Appeals only has authority to review a waiver applicationafter the Service and the immigration judge have considered it, an alienmay not apply for a waiver under section 216(c)(4) of the Act on appeal.

POLANCO, 20 I&N Dec. 894 (BIA 1994) ID 3232 (PDF) (1) An alien who haswaived or exhausted the right to a direct appeal of a conviction is subjectto deportation, and the potential for discretionary review on direct appealwill not prevent the conviction from being considered final for immigrationpurposes. (2) Where an alien failedto file a timely appeal from his conviction and did not show that hisrequest for a nunc pro tunc appeal pursuant to Rule 2:4-4(a) of the NewJersey Rules of Court had been granted, his conviction is final for immigrationpurposes.

NWOKOMA, 20 I&N Dec. 899 (BIA 1994) ID 3233 (PDF) The Immigration and NaturalizationService retains authority to deny a Joint Petition to Remove the ConditionalBasis of Alien's Permanent Resident Status (Form I-751) pursuant to section216(c)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1186a(c)(3)(A)(Supp. IV 1986), notwithstanding the Service's failure to adjudicate thejoint petition within 90 days of the interview of the alien and his orher spouse.

L-G-, 20 I&N Dec. 905 (BIA 1994) ID 3234 (PDF) (1) A single convictionunder 21 U.S.C. § 844(a) (Supp. V 1993) for simple possession ofmore than 5 grams of a mixture or substance which contains cocaine baseis a conviction for an aggravated felony within the meaning of section101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(Supp. V 1993), as is a state conviction analogous to such federal conviction. (2) A single convictionfor possession of a controlled substance under section 40:967F(2) of theLouisiana Revised Statutes is not analogous to a conviction under thesingle offense felony provision of 21 U.S.C. § 844(a) relating topossession of "cocaine base" where the Louisiana convictioninvolved possession of "cocaine," not cocaine base.

GRINBERG, 20 I&N Dec. 911 (BIA 1994) ID 3235 (PDF) Notwithstanding a clericalerror in the redundant designation of "section 245(i)" of theImmigration and Nationality Act, to be codified at 8 U.S.C. § 1255(i),immigration judges have jurisdiction to entertain applications for reliefbased on both the section 245(i) that was created through section 506(b)of the Departments of Commerce, Justice, and State Appropriations Actfor 1995, Pub. L. No. 103-317, 108 Stat. 1724, 1765, and the separatesection 245(i) that was created through section 130003 of the ViolentCrime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108Stat. 1796, 2024.

D-, 20 I&N Dec. 915 (BIA 1994) ID 3236 (PDF) Evidence of general conditionsin an alien's homeland may be weighed as a factor in evaluating an applicationunder section 212(c) of the Immigration and Nationality Act, 8 U.S.C.§ 1182(c) (Supp. V 1993), but since Congress has provided asylumand withholding of deportation under sections 208 and 243(h) of the Act,8 U.S.C. §§ 1158 and 1253(h) (1988 & Supp. V 1993), as theappropriate avenues for requesting relief from deportation on the basisof a fear of persecution, allegations and evidence regarding a well-foundedfear or clear probability of persecution have no place in a section 212(c)application or adjudication.

SPARROW, 20 I&N Dec. 920 (BIA 1994) ID 3237 (PDF) (1) Because the Noticeof Entry of Appearance as Attorney or Representative (Form G-28) is designedto determine whether an individual is an attorney within the meaning of8 C.F.R. § 1.1(f) (1994), an attorney filing this form has a dutyto disclose disciplinary actions or other restrictions on his practiceof law in the bars of courts in jurisdictions other than those in whichhe claims to be in good standing. (2) Where an attorneyin disciplinary proceedings under 8 C.F.R. § 292.3(a)(10) (1994)is charged with willfully making false and material statements or representationswith respect to his qualifications or authority to represent others inany case, his false statement or representation is deemed material ifit has a tendency to influence, or is capable of influencing, the decisionof the decision-making body to which it was addressed. (3) A 10-year suspensionfrom the practice of law before the Immigration and Naturalization Serviceand the Executive Office for Immigration Review is appropriate where therespondent has a conviction which involved a conspiracy to violate immigrationlaws through a sham marriage scheme, making false statements to the Service,suborning perjury, and stealing government property the respondent isunder suspension from the practice of law in three states the respondentmisrepresented his qualifications or authority to represent others inimmigration proceedings on Notices of Entry of Appearance and the respondentdid not report his conviction to the Executive Office for ImmigrationReview or state bar authorities.

GAWARAN, 20 I&N Dec. 938 (BIA 1995) ID 3238 (PDF) (1) The provisions offormer section 241(f) (1) of the Immigration and Nationality Act, 8 U.S.C.§ 1251(f)(1) (1988), do not waive an alien's deportability underformer section 241 (a) (9) (B) of the Act, 8 U.S.C. § 1251(a)(9)(B)(1988), because termination of the alien's conditional permanent residentstatus constitutes a basis for deportability which is separate and distinctfrom the charge that the alien is "excludable at the time of entry"within the meaning of former section 241(f)(1). (2) In order to preservean application for relief under section 216(c)(4) of the Act, 8 U.S.C.§ 1186a(c)(4) (1988), an alien must request before the immigrationjudge a review of the Service's denial of such application.

ROCHA, 20 I&N Dec. 944 (BIA 1995) ID 3239 (PDF) An alien is not deportableunder section 241(a)(1)(A) of the Immigration and Nationality Act, 8 U.S.C.§ 1251(a)(1)(A) (Supp. V 1993), as an alien who was excludable atthe time of entry pursuant to section 212(a)(2)(C) of the Act, 8 U.S.C.§ 1182(a)(2)(C) (Supp. V 1993), where the examining immigration officerdid not know or have reason to believe at the time the alien was inspectedand admitted into the United States that he was an illicit traffickerin any controlled substance.

TEE, 20 I&N Dec. 949 (BIA 1995) ID 3240 (PDF) An alien becomes statutorilyineligible for approval of a joint petition under section 216(c)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1186a(c)(1) (1988),where the marriage has been terminated prior to adjudication of the petitionby the immigration judge.

PRICE, 20 I&N Dec. 953 (Acting Assoc. Comm. 1994) ID 3241 (PDF) An alien seeking immigrantclassification under section 203(b)(1)(A) of the Immigration and NationalityAct, 8 U.S.C. § 1153(b)(1)(A) (Supp. V 1993), has clearly establishedthat he is an alien with extraordinary ability in athletics when he haswon such internationally recognized competitions as the 1983 World Seriesof Golf and the 1991 Canadian Open, ranked 10th on the Professional Golfers'Association Tour in 1989, collected earnings in 1991 totalling $714,389,provided numerous affidavits and letters of support from well-known andcelebrated golfers and other experts in the field, and received widespreadmajor media coverage for his ability on the golf course.

GOMEZ-GIRALDO, 20 I&N Dec. 957 (BIA 1995) ID 3242 (PDF) As Congress manifestedits intent that the aggravated felony bar of section 212(c) of the Immigrationand Nationality Act, 8 U.S.C. § 1182(c) (Supp. V 1993), be appliedretroactively to all convictions for offenses described in the originalaggravated felony definition of section 101(a)(43) of the Act, 8 U.S.C.§ 1101(a)(43) (1988), regardless of when the conviction was entered,and as the retroactive application of the bar does not offend any of theconcerns underlying the presumption against the retroactive operationof new statutes, the decision of the Board of Immigration Appeals in Matterof A-A-, 20 I&N Dec. 3176 (BIA 1992), is consistent with the SupremeCourt's holdings in Landgraf v. USI Film Products, U.S. , 114 S. Ct. 1483(1994), and Rivers v. Roadway Express, Inc., U.S. , 114 S. Ct. 1510 (1994),and is accordingly reaffirmed.