Volume 28
M-F-O-, 28 I&N Dec. 408 (BIA 2021)
ID 4031 (PDF)
A notice to appear that does not specify the time or place of a respondent’s initial removal hearing does not end the accrual of physical presence for purposes of voluntary departure at the conclusion of removal proceedings under section 240B(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b) (2018), even if the respondent is later served with a notice of hearing specifying this information. Posos‑Sanchez v. Garland, 3 F.4th 1176 (9th Cir. 2021), followed. Matter of Viera‑Garcia and Ordonez‑Viera, 28 I&N Dec. 223 (BIA 2021), overruled in part.
KAGUMBAS, 28 I&N Dec. 400 (BIA 2021)
ID 4030 (PDF)
An Immigration Judge has the authority to inquire into the bona fides of a marriage when considering an application for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a) (2018).
NEGUSIE, 28 I&N Dec. 399 (A.G. 2021)
ID 4029 (PDF)
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i), I direct the Board of Immigration Appeals (“Board”) to refer this case to me for review of its decision. The Board’s decision in this matter is automatically stayed pending my review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001).
ARAMBULA-BRAVO, 28 I&N Dec. 388 (BIA 2021)
ID 4028 (PDF)
(1) A Notice to Appear that does not specify the time and place of a respondent’s initial removal hearing does not deprive the Immigration Judge of jurisdiction over the respondent’s removal proceedings. Pereira v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), distinguished; Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), and Matter of Rosales Vargas and Rosales Rosales, 27 I&N Dec. 745 (BIA 2020), followed.
(2) A Notice to Appear that lacks the time and place of a respondent’s initial removal hearing constitutes a “charging document” as defined in 8 C.F.R. § 1003.13 (2021), and is sufficient to terminate a noncitizen’s grant of parole under 8 C.F.R. § 212.5(e)(2)(i) (2021).
N-V-G-, 28 I&N Dec. 380 (BIA 2021)
ID 4027 (PDF)
A person who enters the United States as a refugee and later adjusts in the United States to lawful permanent resident status is not precluded from establishing eligibility for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2018), based on a conviction for an aggravated felony, because he or she has not “previously been admitted to the United States as an alien lawfully admitted for permanent residence” under that provision.
HERNANDEZ-ROMERO, 28 I&N Dec. 374 (BIA 2021)
ID 4026 (PDF)
Section 240A(c)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(c)(6) (2018), bars an applicant, who has previously been granted special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, tit. II, 111 Stat. 2160, 2193, 2198 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997), from applying for cancellation of removal under section 240A(a) or (b)(1) of the Act.
AGUILAR-BARAJAS, 28 I&N Dec. 354 (BIA 2021)
ID 4025 (PDF)
(1) The offense of aggravated statutory rape under section 39-13-506(c) of the Tennessee Code Annotated is categorically a “crime of child abuse” within the meaning of section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2018).
(2) The Supreme Court’s holding that a statutory rape offense does not qualify as “sexual abuse of a minor” based solely on the age of the participants, unless it involves a victim under 16, does not affect our definition of a “crime of child abuse” in Matter of Velazquez‑Herrera, 24 I&N Dec. 503 (BIA 2008), nor does it control whether the respondent’s statutory rape offense falls within this definition. Esquivel‑Quintana v. Sessions, 137 S. Ct. 1562 (2017), distinguished.
A-C-A-A-, 28 I&N Dec. 351 (A.G. 2021)
ID 4024 (PDF)
(1) Matter of A-C-A-A-, 28 I&N Dec. 84 (A.G. 2020) (“A-C-A-A- I”), is vacated in its entirety. Immigration judges and the Board should no longer follow A-C-A-A- I in pending or future cases and should conduct proceedings consistent with this opinion and the opinions in Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021) (“L‑E‑A‑ III”), and Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) (“A‑B- III”).
(2) The Board’s longstanding review practices that A-C-A-A- I apparently prohibited, including its case-by-case discretion to rely on immigration court stipulations, are restored.
O-R-E-, 28 I&N Dec. 330 (BIA 2021)
ID 4023 (PDF)
(1) Immigration Judges and the Board lack the authority to recognize the equitable defense of laches in removal proceedings.
(2) The respondent’s willful misrepresentations regarding his name, location of his residence, timing of his departure from Rwanda, and membership in political organizations on his Registration for Classification as Refugee (Form I-590) and supporting documents were “material” within the meaning of section 212(a)(6)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2018), and he is therefore removable under section 237(a)(1)(A) of the Act, 8 U.S.C. § 1227(a)(1)(A) (2018).
(3) The evidence indicates that the respondent ordered, incited, assisted, or otherwise participated in the Rwandan genocide, and he did not produce sufficient countervailing evidence to demonstrate that he is not subject to the genocide bar at section 212(a)(3)(E)(ii) of the Act.
CRUZ-VALDEZ, 28 I&N Dec. 326 (A.G. 2021)
ID 4022 (PDF)
(1) Matter of Castro‑Tum, 27 I&N Dec. 271 (A.G. 2018), is overruled in its entirety.
(2) While rulemaking proceeds and except when a court of appeals has held otherwise, immigration judges and the Board should apply the standard for administrative closure set out in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W‑Y‑U‑, 27 I&N Dec. 17 (BIA 2017).
S-L-H- & L-B-L-, 28 I&N Dec. 318 (BIA 2021)
ID 4021 (PDF)
(1) Immigration Judges may exercise their discretion to rescind an in absentia removal order and grant reopening where an alien has established through corroborating evidence that his or her late arrival at a removal hearing was due to “exceptional circumstances” under section 240(e)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(e)(1) (2018), and, in doing so, should consider factors such as the extent of the alien’s tardiness, whether the reasons for the alien’s tardiness are appropriately exceptional, and any other relevant factors in the totality of the circumstances.
(2) Corroborating evidence may include, but is not limited to, affidavits, traffic and weather reports, medical records, verification of the alien’s arrival time at the courtroom, and other documentation verifying the cause of the late arrival; however, general statements—without corroborative evidence documenting the cause of the tardiness—are insufficient to establish exceptional circumstances that would warrant reopening removal proceedings. Matter of S-A-, 21 I&N Dec. 1050 (BIA 1997), reaffirmed and clarified.
MORADEL, 28 I&N Dec. 310 (BIA 2021)
ID 4020 (PDF)
(1) An applicant for adjustment of status with Special Immigrant Juvenile status may, in conjunction with a waiver under section 245(h)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1255(h)(2)(B) (2018), seek to waive his or her inadmissibility under section 212(a)(2)(A)(i)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2018), based on a single offense of simple possession of 30 grams or less of marijuana.
(2) The “simple possession” exception at section 245(h)(2)(B) calls for a circumstance‑specific inquiry into the nature of the conduct surrounding an applicant’s simple possession offense.
A-B-, 28 I&N Dec. 307 (A.G. 2021)
ID 4019 (PDF)
(1) Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) (“A-B- I”), and Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021) (“A-B- II”), are vacated in their entirety.
(2) Immigration judges and the Board should no longer follow A-B- I or A-B- II when adjudicating pending or future cases. Instead, pending forthcoming rulemaking, immigration judges and the Board should follow pre-A-B- I precedent, including Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014).
L-E-A-, 28 I&N Dec. 304 (A.G. 2021)
ID 4018 (PDF)
(1) Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) (“L-E-A- II”), is vacated in its entirety so as to return the immigration system to the preexisting state of affairs pending completion of the ongoing rulemaking process and the issuance of a final rule addressing the definition of “particular social group.”
(2) Immigration judges and the Board should no longer follow L-E-A- II when adjudicating pending and future cases.
D-G-C-, 28 I&N Dec. 297 (BIA 2021)
ID 4017 (PDF)
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).
MENSAH, 28 I&N Dec. 288 (BIA 2021)
ID 4016 (PDF)
An Immigration Judge may rely on fraud or a willful misrepresentation of a material fact made by an alien during an interview before the United States Citizenship and Immigration Services to remove the conditional basis of an alien’s permanent resident status in assessing whether the alien has demonstrated, for purposes of adjustment of status in removal proceedings, that she is not inadmissible under section 212(a)(6)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2018).
A-S-M-, 28 I&N Dec. 282 (BIA 2021)
ID 4015 (PDF)
Where the Department of Homeland Security states that an applicant may be removed to a country pursuant to section 241(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(2) (2018), the applicant may seek withholding of removal from that country in withholding-only proceedings, even if that country is different from the country of removal that was originally designated in the reinstated removal order on which the withholding‑only proceedings are based.
VUCETIC, 28 I&N Dec. 276 (BIA 2021)
ID 4014 (PDF)
The offense of aggravated unlicensed operation of a motor vehicle in the first degree in violation of section 511(3)(a)(i) of the New York Vehicle and Traffic Law, which prohibits a person from driving under the influence of alcohol or drugs while knowing or having reason to know that his or her license is suspended, is categorically a crime involving moral turpitude. Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999), followed.
AL SABSABI, 28 I&N Dec. 269 (BIA 2021)
ID 4013 (PDF)
(1) The “offense clause” of the Federal conspiracy statute, 18 U.S.C. § 371 (2012), is divisible and the underlying substantive crime is an element of the offense.
(2) Because the substantive offense underlying the respondent’s Federal conspiracy conviction—namely, selling counterfeit currency in violation of 18 U.S.C. § 473 (2012)—is a crime involving moral turpitude, his conviction for conspiring to commit this offense is likewise one for a crime involving moral turpitude.
AGUILAR-MENDEZ, 28 I&N Dec. 262 (BIA 2021)
ID 4012 (PDF)
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.
NEMIS, 28 I&N Dec. 250 (BIA 2021)
ID 4011 (PDF)
(1) Applying the categorical approach, the conspiracy statute, 18 U.S.C. § 371 (2012), is overbroad relative to the generic definition of a crime involving moral turpitude, and divisible between the offense clause, which may or may not involve moral turpitude, and the defraud clause of the statute, which is categorically a crime involving moral turpitude.
(2) To determine whether a conspiracy conviction under the offense clause of 18 U.S.C. § 371 constitutes a crime involving moral turpitude, the underlying statute of conviction should be examined under the categorical, and if applicable, modified categorical approach.
(3) The respondent’s conviction under 18 U.S.C. § 1546(a) (2012), punishing fraud and misuse of visas, permits, and other documents, is overbroad and divisible such that the modified categorical approach is applicable and it was proper to consider the conviction records. Matter of Serna, 20 I&N Dec. 579 (BIA 1992), clarified.
(4) The respondent’s conviction for conspiracy to commit visa fraud in violation of 18 U.S.C. §§ 371 and 1546(a) is a conviction for a crime involving moral turpitude under the modified categorical approach.
L-L-P-, 28 I&N Dec. 241 (BIA 2021)
ID 4010 (PDF)
An applicant for special rule cancellation of removal under section 240A(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(2) (2018), based on spousal abuse must demonstrate both that the abuser was his or her lawful spouse and possessed either United States citizenship or lawful permanent resident status at the time of the abuse.
H-L-S-A-, 28 I&N Dec. 228 (BIA 2021)
ID 4009 (PDF)
Individuals who cooperate with law enforcement may constitute a valid particular social group under the Immigration and Nationality Act if their cooperation is public in nature, particularly where testimony was given in public court proceedings, and the evidence in the record reflects that the society in question recognizes and provides protection for such cooperation.
VIERA-GARCIA and ORDONEZ-VIERA, 28 I&N Dec. 223 (BIA 2021)
ID 4008 (PDF)
Where a notice to appear fails to specify the time or place of a respondent’s initial removal hearing, the subsequent service of a notice of hearing specifying this information perfects the notice to appear and ends the accrual of physical presence for purposes of voluntary departure at the conclusion of removal proceedings pursuant to section 240B(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b) (2018).
DIKHTYAR, 28 I&N Dec. 214 (BIA 2021)
ID 4007 (PDF)
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.
A-B-, 28 I&N Dec. 199 (A.G. 2021)
ID 4006 (PDF)
(1) Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), did not alter the existing standard for determining whether a government is “unwilling or unable” to prevent persecution by non-governmental actors. The “complete helplessness” language used in Matter of A-B- is consistent with the longstanding “unable or unwilling” standard, as the two are interchangeable formulations.
(2) The concept of “persecution” under the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(a), (b)(i), is premised on a breach of a home country’s duty to protect its citizens. In cases where an asylum applicant is the victim of violence or threats by non-governmental actors, and the applicant’s home government has made efforts to prevent such violence or threats, failures in particular cases or high levels of crime do not establish a breach of the government’s duty to protect its citizenry.
(3) The two-pronged test articulated by the Board of Immigration Appeals in Matter of L-E-A-, 27 I&N Dec. 40, 43–44 (BIA 2017), is the proper approach for determining whether a protected ground is “at least one central reason” for an asylum applicant’s persecution, 8 U.S.C. § 1158(b)(1)(B)(i). Under this test, the protected ground: (1) must be a but-for cause of the wrongdoer’s act; and (2) must play more than a minor role—in other words, it cannot be incidental or tangential to another reason for the act.
O-M-O-, 28 I&N Dec. 191 (BIA 2021)
ID 4005 (PDF)
An Immigration Judge may find a document to be fraudulent without forensic analysis or other expert testimony where the document contains obvious defects or readily identifiable hallmarks of fraud and the party submitting the document is given an opportunity to explain the defects.
RIVERA-MENDOZA, 28 I&N Dec. 184 (BIA 2020)
ID 4004 (PDF)
The risk of harm to a child required to obtain a conviction for child neglect in the second degree under section 163.545(1) of the Oregon Revised Statutes is sufficiently high that the offense is categorically 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).
M-A-M-Z-, 28 I&N Dec. 173 (BIA 2020)
ID 4003 (PDF)
(1) Expert testimony is evidence, but only an Immigration Judge makes factual findings.
(2) When the Immigration Judge makes a factual finding that is not consistent with an expert’s opinion, it is important, as the Immigration Judge did here, to explain the reasons behind the factual findings.
MELGAR, 28 I&N Dec. 169 (BIA 2020)
ID 4002 (PDF)
(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.
PADILLA RODRIGUEZ, 28 I&N Dec. 164 (BIA 2020)
ID 4001 (PDF)
(1) Where the temporary protected status (“TPS”) of an alien who was previously present in the United States without being admitted or paroled is terminated, the alien remains inadmissible under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2018), and removal proceedings should not be terminated.
(2) An alien whose TPS continues to be valid is considered to be “admitted” for purposes of establishing eligibility for adjustment of status only within the jurisdictions of the United States Courts of Appeals for the Sixth, Eighth, and Ninth Circuits.
H-Y-Z-, 28 I&N Dec. 156 (BIA 2020)
ID 4000 (PDF)
Absent a showing of prejudice on account of ineffective assistance of counsel, or a showing that clearly undermines the validity and finality of the finding, it is inappropriate for the Board to favorably exercise our discretion to reopen a case and vacate an Immigration Judge’s frivolousness finding.
NEGUSIE, 28 I&N Dec. 120 (A.G. 2020)
ID 3999 (PDF)
(1) The bar to eligibility for asylum and withholding of removal based on the persecution of others does not include an exception for coercion or duress.
(2) The Department of Homeland Security does not have an evidentiary burden to show that an applicant is ineligible for asylum and withholding of removal based on the persecution of others. If evidence in the record indicates the persecutor bar may apply, the applicant bears the burden of proving by a preponderance of the evidence that it does not.
PAK, 28 I&N Dec. 113 (BIA 2020)
ID 3998 (PDF)
Where there is substantial and probative evidence that a beneficiary’s prior marriage was fraudulent and entered into for the purpose of evading the immigration laws, a subsequent visa petition filed on the beneficiary’s behalf is properly denied pursuant to section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (2018), even if the first visa petition was denied because of insufficient evidence of a bona fide marital relationship.
VOSS, 28 I&N Dec. 107 (BIA 2020)
ID 3997 (PDF)
If a criminal conviction was charged as a ground of removability or was known to the Immigration Judge at the time cancellation of removal was granted under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2018), that conviction cannot serve as the sole factual predicate for a charge of removability in subsequent removal proceedings.
J-G-T-, 28 I&N Dec. 97 (BIA 2020)
ID 3996 (PDF)
(1) In assessing whether to admit the testimony of a witness as an expert, an Immigration Judge should consider whether it is sufficiently relevant and reliable for the expert to offer an informed opinion, and if it is admitted, the Immigration Judge should then consider how much weight the testimony should receive.
(2) In considering how much weight to give an expert’s testimony, the Immigration Judge should assess how probative and persuasive the testimony is regarding key issues in dispute for which the testimony is being offered.
A-C-A-A-, 28 I&N Dec. 84 (A.G. 2020)
ID 3995 (PDF)
(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.
R-C-R-, 28 I&N Dec. 74 (BIA 2020)
ID 3994 (PDF)
(1) After an Immigration Judge has set a firm deadline for filing an application for relief, the respondent’s opportunity to file the application may be deemed waived, prior to a scheduled hearing, if the deadline passes without submission of the application and no good cause for noncompliance has been shown.
(2) The respondent failed to meet his burden of establishing that he was deprived of a full and fair hearing where he has not shown that conducting the hearing by video conference interfered with his communication with the Immigration Judge or otherwise prejudiced him as a result of technical problems with the video equipment.
NIVELO CARDENAS, 28 I&N Dec. 68 (BIA 2020)
ID 3993 (PDF)
(1) Where an alien who has been personally served with a notice to appear advising him of the requirement to notify the Immigration Court of his correct address fails to do so and is ordered removed in absentia for failure to appear for the scheduled hearing, reopening of the proceedings to rescind his order of removal based on a lack of proper notice is not warranted under section 240(b)(5)(C)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C)(ii) (2018).
(2) The respondent’s failure to update his address for over 18 years indicates a lack of due diligence and may properly be found to undermine the veracity of his claim that he has taken actions to maintain his rights in the underlying removal proceedings.
REYES, 28 I&N Dec. 52 (A.G. 2020)
ID 3992 (PDF)
(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.
P-B-B-, 28 I&N Dec. 43 (BIA 2020)
ID 3991 (PDF)
Section 13-3407 of the Arizona Revised Statutes, which criminalizes possession of a dangerous drug, is divisible with regard to the specific “dangerous drug” involved in a violation of that statute.
O‑F‑A‑S‑, 28 I&N Dec. 35 (A.G. 2020)
ID 3990 (PDF)
(1) Under Department of Justice regulations implementing the Convention Against Torture, an act constitutes “torture” only if it is inflicted or approved by a public official or other person “acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). This official capacity requirement limits the scope of the Convention to actions performed “under color of law.” Matter of Y-L-, 23 I&N Dec. 270 (A.G. 2002). Nothing in Matter of Y-L-, or any other Board precedent, should be construed to endorse a distinct, “rogue official” standard.
(2) The “under color of law” standard draws no categorical distinction between the acts of low- and high-level officials. A public official, regardless of rank, acts “under color of law” when he “exercise[s] power ‘possessed by virtue of . . . law and made possible only because [he was] clothed with the authority of . . . law.’” West v. Atkins, 487 U.S. 42, 47 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).
M-D-C-V-, 28 I&N Dec. 18 (BIA 2020)
ID 3989 (PDF)
Under section 235(b)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b)(2)(C) (2018), an alien who is arriving on land from a contiguous foreign territory may be returned by the Department of Homeland Security to that country pursuant to the Migrant Protection Protocols, regardless of whether the alien arrives at or between a designated port of entry.
BAY AREA LEGAL SERVICES, INC., 28 I&N Dec. 16 (DIR 2020)
ID 3988 (PDF)
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.
R. I. ORTEGA, 28 I&N Dec. 9 (BIA 2020)
ID 3987 (PDF)
(1) An alien who has conspired to enter into a marriage for the purpose of evading the immigration laws by seeking to secure a K-1 fiancé(e) nonimmigrant visa is subject to the bar under section 204(c)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c)(2) (2018).
(2) For purposes of section 204(c)(2) of the Act, a conspiracy requires an agreement to enter into a marriage for the purpose of evading the immigration laws and an overt act in furtherance of that agreement.
A-M-R-C-, 28 I&N Dec. 7 (A.G. 2020)
ID 3986 (PDF)
The Attorney General referred the decision of the Board of Immigration Appeals to himself for review of issues relating to the effect of timing of referral; whether the Board applied the correct legal standard and properly exercised its discretion in deciding issues related to the serious nonpolitical crime bar and the persecutor bar; and whether the Board applied the correct standard for determining whether a respondent’s in absentia trial suffered from due process problems.
F-S-N-, 28 I&N Dec. 1 (BIA 2020)
ID 3985 (PDF)
To prevail on a motion to reopen alleging changed country conditions where the persecution claim was previously denied based on an adverse credibility finding in the underlying proceedings, the respondent must either overcome the prior determination or show that the new claim is independent of the evidence that was found to be not credible.
