Volume 28 — Immigration & Naturalization Decisions

An amicus curiae is not a party in recognition and accreditation proceedings and has no authority to seek further action following the conclusion of an administrative review under 8 C.F.R. § 1292.18.

(1) If all of the means of committing a crime, based on the elements of the statute of conviction, amount to one or more of the offenses listed in section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. §1101(a)(43), then an alien who has been convicted of that crime has necessarily been convicted of an aggravated felony for purposes of the INA. (2) The respondent's conviction for grand larceny in the second degree under New York Penal Law § 155.40(1) qualifies as a conviction for an aggravated felony for purposes of the INA. DHS charged that the respondent had been convicted of either aggravated-felony theft or aggravated-felony fraud, as defined in section 101(a)(43)(G) and (M)(i) of the INA, 8 U.S.C. § 1101(a)(43)(G) and (M)(i). Larceny by acquiring lost property constitutes aggravated-felony theft, and the parties do not dispute that the other means of violating the New York statute correspond to either aggravated-felony theft or aggravated-felony fraud.

(1) In conducting its review of an alien's asylum claim, the Board of Immigration Appeals ("Board") must examine de novo whether the facts found by the immigration judge satisfy all of the statutory elements of asylum as a matter of law. See Matter of R-A-F-, 27 I&N Dec. 778 (A.G. 2020). (2) When reviewing a grant of asylum, the Board should not accept the parties' stipulations to, or failures to address, any of the particular elements of asylum—including, where necessary, the elements of a particular social group. Instead, unless it affirms without opinion under 8 C.F.R. § 1003.1(e)(4)(i), the Board should meaningfully review each element of an asylum claim before affirming such a grant, or before independently ordering a grant of asylum. See Matter of L-E-A-, 27 I&N Dec. 581, 589 (A.G. 2019). (3) Even if an applicant is a member of a cognizable particular social group and has suffered persecution, an asylum claim should be denied if the harm inflicted or threatened by the persecutor is not "on account of" the alien's membership in that group. That requirement is especially important to scrutinize where the asserted particular social group encompasses many millions of persons in a particular society. (4) An alien's membership in a particular social group cannot be "incidental, tangential, or subordinate to the persecutor's motivation . . . [for] why the persecutor[] sought to inflict harm." Matter of A-B-, 27 I&N Dec. 316, 338 (A.G. 2018) (citations omitted). Accordingly, persecution that results from personal animus or retribution generally does not support eligibility for asylum.

(1) Counsel's acceptance of responsibility for error does not discharge the disciplinary authority complaint obligation under Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), particularly where the ineffective assistance allegation is rendered by the same attorney against himself. (2) A respondent seeking reopening on the basis of a claim of ineffective assistance of counsel must show a reasonable probability that, but for counsel's error, he would have prevailed on his claim.

Section 58-37-8(2)(a)(i) of the Utah Code, which criminalizes possession or use of a controlled substance, is divisible with respect to the identity of the specific "controlled substance" involved in a violation of that statute.

The respondent's conviction for assault by means of force likely to produce great bodily injury in violation of section 245(a)(4) of the California Penal Code is categorically one for a crime involving moral turpitude. Matter of Wu, 27 I&N Dec. 8 (BIA 2017), followed.

The mere continuation of an activity in the United States that is substantially similar to the activity from which an initial claim of past persecution is alleged and that does not significantly increase the risk of future harm is insufficient to establish "changed circumstances" to excuse an untimely asylum application within the meaning of section 208(a)(2)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a)(2)(D) (2018).

Because the identity of the "controlled dangerous substance" possessed is an element of the crime of possession of a controlled dangerous substance under section 2C:35-10(a)(1) of the New Jersey Statutes Annotated, the statute is divisible with respect to the specific substance possessed, and the record of conviction can be examined under the modified categorical approach to determine whether that substance is a controlled substance under Federal law.

Section 714.1 of the Iowa Code is divisible with respect to whether a violation of the statute involved theft by taking without consent or theft by fraud or deceit, permitting an Immigration Judge to review the conviction record under a modified categorical approach to determine whether the violation involved aggravated felony theft as defined in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2018).

The amount of forfeiture ordered in a criminal proceeding may be considered in determining whether a crime of fraud or deceit resulted in a loss to a victim or victims exceeding $10,000 pursuant to section 101(a)(43)(M)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(M)(i) (2018), if the amount set forth in the order is sufficiently tethered and traceable to the conduct of conviction.

When the Department of Homeland Security raises the mandatory bar for filing a frivolous asylum application under section 208(d)(6) of the Immigration and Nationality Act, 8 ‍U.S.C. § ‍1158(d)(6) (2018), an Immigration Judge must make sufficient findings of fact and conclusions of law on whether the requirements for a frivolousness determination under Matter of Y‑L‑, 24 I&N Dec. 151 (BIA 2007), have been met.

Larceny in the third degree under section 53a-124(a) of the Connecticut General Statutes is not a theft offense aggravated felony under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2018), because it incorporates by reference a definition of "larceny" under section 53a-119 of the Connecticut General Statutes that is overbroad and indivisible with respect to the generic definition of a theft offense. Almeida v. Holder, 588 F.3d 778 (2d Cir. 2009), and Abimbola v. Ashcroft, 378 ‍F.3d 173 (2d Cir. 2004), not followed.

A finding of guilt in a proceeding that affords defendants all of the constitutional rights of criminal procedure that are applicable without limitation and that are incorporated against the States under the Fourteenth Amendment is a "conviction" for immigration purposes under section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § ‍1101(a)(48)(A) (2018). Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004), clarified.

(1) If a State court's nunc pro tunc order modifies or amends the subject matter of a ‍conviction based on a procedural or substantive defect in the underlying criminal proceedings, the original conviction is invalid for immigration purposes and we will give full effect to the modified conviction however, if the modification or amendment is entered for reasons unrelated to the merits of the underlying proceedings, the modification will not be given any effect and the original conviction remains valid. Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), rev'd on other grounds, Pickering v. ‍Gonzales, 465 F.3d 263 (6th Cir. 2006), followed. (2) Section 18.2-248 of the Virginia Code, which criminalizes the distribution of a ‍controlled substance, is divisible with respect to the identity of the specific "controlled substance" involved in a violation of that statute.

(1) The Supreme Court's construction of "physical force" in Johnson v. ‍United States, 559 U.S. 133 (2010), and Stokeling v. United States, 139 S.‍ Ct. 544 (2019), controls our interpretation of 18 ‍U.S.C. § ‍16(a) (2018), which is incorporated by reference into section 237(a)(2)(E)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. §‍ 1227(a)(2)(E)(i) (2018) the Court's construction of "physical force" in United States v. ‍Castleman, 572 U.S. 157 (2014), is inapplicable in this context. (2) Because misdemeanor domestic abuse battery with child endangerment under section 14:35.3(I) of the Louisiana Statutes extends to mere offensive touching, it is overbroad with respect to § 16(a) and therefore is not categorically a crime of domestic violence under section 237(a)(2)(E)(i) of the INA, 8 U.S.C. § ‍1227(a)(2)(E)(i).

(1) Any fact that establishes or increases the permissible range of punishment for a ‍criminal offense is an "element" for purposes of the categorical approach, even if the term "element" is defined differently under State law. Matter of Laguerre, 28 I&N Dec. 437 (BIA 2022), followed. (2) Title 35, section 780-113(a)(30) of the Pennsylvania Consolidated Statutes, which punishes possession with intent to deliver a controlled substance, is divisible with respect to the identity of the controlled substance possessed, and the respondent's conviction under this statute is one for a controlled substance violation under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § ‍1227(a)(2)(B)(i) (2018), under the modified categorical approach.

(1) Matter of G‑G‑S‑, 26 I&N Dec. 339 (BIA 2014), is overruled. (2) Immigration adjudicators may consider a respondent's mental health in determining whether an individual, "having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States." 8 ‍U.S.C. § ‍1158(b)(2)(A)(ii) see id § ‍1231(b)(3)(B)(ii).

A respondent who is subject to a deferred adjudication that satisfies the elements of sections 101(a)(48)(A)(i) and (ii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § ‍1101(a)(48)(A)(i) and (ii) (2018), has been "convicted by a final judgment" within the meaning of the particularly serious crime bar under section 241(b)(3)(B)(ii) of the INA, 8 ‍U.S.C. § 1231(b)(3)(B)(ii) (2018).

A respondent who raises an objection to missing time or place information in a notice to appear for the first time in a motion to reopen has forfeited that objection.

The respondent's conviction for unlawfully selling or otherwise disposing of a firearm or ammunition in violation of 18 U.S.C. § ‍922(d) (2018) does not render him removable as charged under section 237(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. §‍ 1227(a)(2)(C) (2018), because § ‍922(d) is categorically overbroad and indivisible relative to the definition of a firearms offense.

A conviction for second degree burglary of a dwelling under section 140.25(2) of the New York Penal Law is categorically a conviction for generic burglary under section 101(a)(43)(G) of the Immigration and Nationality Act ("INA"), 8 U.S.C. §‍ 1101(a)(43)(G) (2018), because the statute requires burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation. United States v. Stitt, 139 S. Ct. 399 (2018), followed.

When determining whether a respondent is grandfathered for purposes of adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § ‍1255(i) (2018), a decision of the United States Citizenship and Immigration Services ("USCIS") to approve a visa petition filed on or before April 30, 2001, does not foreclose an Immigration Judge from determining in removal proceedings whether that petition was "approvable when filed" within the meaning of 8 C.F.R. § ‍1245.10(a)(1)(i) (2021).

(1) The "stop-time" rule under section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. 1229b(d)(1), is not triggered by the entry of a final removal order, but rather only by service of a statutorily compliant notice to appear or the commission of specified criminal offenses, in accordance with the plain language statutory analysis provided in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). (2) Breaks in physical presence under section 240A(d)(2) of the Immigration and Nationality Act, 8 U.S.C. 1229b(d)(2), continue to be interpreted as distinct from termination of physical presence under the stop-time rule. Matter of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000), followed. (3) A respondent claiming a fundamental change in law as the basis for seeking sua sponte reopening must also establish prima facie eligibility for the relief sought. Matter of G‑D-, 22 I&N Dec. 1132 (BIA 1999), followed.

Pereira v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), are inapplicable to proceedings initiated by a Notice to Applicant for Admission Detained for Hearing Before Immigration Judge ("Form I-122") and other charging documents issued prior to the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546. Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021), followed.

Noncitizens who are inadmissible for a specified period of time pursuant to section 212(a)(9)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9)(B)(i), due to their previous unlawful presence and departure are not required to reside outside the United States during this period in order to subsequently overcome this ground of inadmissibility.

A respondent's release from Federal pretrial criminal custody does not preclude an Immigration Judge from denying a respondent's request for release from immigration detention under section 236(a) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a) (2018).

The Department of Homeland Security cannot remedy a notice to appear that lacks the date and time of the initial hearing before the Immigration Judge by filing a Form I‑261 because this remedy is contrary to the plain text of 8 C.F.R. § ‍1003.30 and inconsistent with the Supreme Court's decision in Niz-Chavez v. Garland, 593 U.S. 155 (2021).

When a petition to remove the conditions on residence is withdrawn before United States Citizenship and Immigration Services prior to adjudication, the Immigration Judge ordinarily cannot review the merits of that petition in removal proceedings. Matter of Mendes, 20 I&N Dec. 833 (BIA 1994), followed.

The regulation at 8 C.F.R. § 1240.17 (2024) applies only to those respondents first placed in expedited removal proceedings whose applications for relief and protection were adjudicated by United States Citizenship and Immigration Services and who were then placed in removal proceedings under section 240 of the Immigration and Nationality Act, 8 U.S.C. § ‍1229a (2018).

(1) A petitioner seeking approval of a Form I‑130 for an adopted child from a country that is a party to the Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption, opened for signature May 29, 1993, S. Treaty Doc. No. 105-51, 1870 U.N.T.S. 167 (entered into force May ‍1, 1995 for the United States Apr. 1, 2008), should provide, regardless of the beneficiary's length of United States residence: (1) ‍a ‍written statement from the Central Authority of the child's country of origin stating that it is aware of the child's presence in the United States and of the adoption, and that it has determined that the child is not habitually resident in the country of origin and (2) ‍an adoption order or amended adoption order incorporating the language of the statement from the Central Authority.

Since choice of law is dependent on venue in Immigration Court proceedings, the controlling circuit law is not affected by a change in the administrative control court and will only change upon the granting of a motion to change venue. Matter of Garcia, 28 ‍I&N Dec. 693 (BIA 2023), followed.

(1) Applicants bear the burden of establishing their own credibility, and no statute or legal precedent compels an Immigration Judge to conclude that an applicant's testimony is credible.

(1) A conviction for an attempt to commit a crime may constitute a crime of child abuse, child neglect, or child abandonment under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 ‍U.S.C. § ‍1227(a)(2)(E)(i) (2018).

(1) A proper remedy for a violation of the claim-processing rule at section 239(a)(1)(G)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a)(1)(G)(i) (2018), should (1) result in a notice to appear as a single document (2) be consistent with the rules governing the procedures used for remedy (3) help to promote the underlying purpose of claim-processing rules generally and the rule that the notice to appear include the time and place of the hearing in particular and (4) not prejudice the respondent.

(1) The assumption in Matter of Jurado that a retail theft offense involves an intent to permanently deprive a victim of their property is inconsistent with the categorical approach as currently articulated by the Supreme Court. Matter of Jurado, 24 I&N Dec. ‍29 (BIA 2006), aff'd sub. nom. Jurado‑Delgado v. Att'y Gen. of U.S., 498 F. App'x 107 (3d Cir. 2009), overruled in part.

(1) When the government must prove the elements of a sentencing enhancement beyond a reasonable doubt, those additional elements are combined with the elements of the underlying criminal statute and all the elements are then considered together as one compound crime.

The Board's holding in Matter of Fernandes, 28 I&N Dec. 605, 610–11 (BIA 2022), that an objection to a noncompliant notice to appear will generally be considered timely if raised prior to the close of pleadings is not a change in law, and thus Matter of Fernandes applies retroactively.

Where parties were properly served with electronic notice of the briefing schedule, a representative's failure to diligently monitor the inbox, including the spam folder, of the email address of record does not excuse a party's failure to comply with briefing deadlines.