Removal & Deportation Defense

One of the most difficult and highly complex areas of immigration law is Removal Proceedings, formerly known as Deportation Proceedings. Often an individual’s most important rights are at stake in these proceedings – their ability to live and work in the United States is at jeopardy. Their ability to come back to this country, or for that matter, even visit this country is often called into question, sometime for long periods of time, often for the duration of these individuals’ lives.

Deportation and Removal Defense

Hiring an experienced and knowledgeable immigration lawyer can make all the difference in the world. At The Law Offices of Grinberg & Segal, PLLC, it is our number one priority to protect our clients’ best interest by providing experienced, knowledgeable, and aggressive representation in removal or deportation proceedings, while making sure that no client of ours is unjustly deported or removed from the United States.

Deportation and Removal Defense

If you or a loved one is facing deportation and removal, it is critical that you contact an experienced immigration attorney immediately. The U.S. immigration system is notoriously difficult to understand, and some judges have no problem taking people away from their jobs, their homes and their families.

Lawful Admission

Lawful admission to the United States is rather important and, one would argue, fundamental concept of the U.S. immigration law because it rests on the historical foundation — the exclusive right of a sovereign country to control its borders. That right inevitably includes deciding who is allowed to enter into the country.

Inadmissibility on Health-Related Grounds

Prior to entering the United States in an immigrant status, or seeking adjustment of status (AOS) in the United States, all applicants for admission undergo a health screening. This screening, required under INA §212(a)(1) of the Immigration and Nationality Act, is intended to deem certain aliens with medical diseases — such as certain types of cancer, organ failure and before recently (2009) — HIV — inadmissible from entry into the United States.

Cancelation of Removal for Legal Permanent Residents

In general,Cancellation of Removal (Cancelation) is one of the defensive applications, which can only be made before an immigration judge during a removal hearing. If approved, it would eliminate the deportation/removal of the noncitizen and, depending on the circumstances, allow the noncitizen to either retain his or her LPR status or acquire it for the first time

Cancellation of Removal for Non-Lawful Permanent Residents Under INA § 240A(b)(1)

Effective since April of 1997, certain persons in the United States who are not lawful permanent residents (LPRs) who are facing removal proceedings are eligible to receive a cancellation of removal from the Attorney General (AG). Non-LPRs who receive cancellation of removal will then be eligible for adjustment of status. This article will explain the rules for eligibility for non-LPR cancellation under INA § 240A(b)(1).

Special Rule Cancellation of Removal for Battered Spouses and Children

The Violence Against Women Act (VAWA) contains special rules for cancellation of removal for non-lawful permanent resident (LPR) spouses or children of U.S. citizens (USCs) or LPRs who were subject to battery or extreme cruelty by the USC or LPR spouse or parent. The eligibility requirements for special rule cancellation for battered spouses and children are more lenient than for regular cancellation, making obtaining cancellation of removal generally easier for battered spouses and children of USCs and non-LPRs than for other non-LPRs. This article will explain the eligibility requirements for special rule cancellation for battered spouses and children, where they differ from the general rules for non-LPR cancellation, and advice for applying.

The ABC Settlement Agreement

The American Baptist Churches v. Thornburgh (ABC) Settlement Agreement was a class action settlement between a class of Guatemalan and Salvadoran nationals and the United States Government rendered in American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) on January 31, 1991. Guatemalans and Salvadorans who were physically present in the United States before or after September 19, 1990, and October 1, 1990 respectively and who met certain other requirements, are eligible for benefits under the ABC settlement. This article will explain the rules for eligibility and the benefits available for ABC class members.

Special Rule Cancellation of Removal or Suspension of Deportation Under NACARA § 203

Certain Salvadorans, Guatemalans, and Eastern Europeans may apply for special rule cancellation of removal under the old suspension of deportation rules, or suspension of deportation, pursuant to section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA). Special rule cancellation or suspension under NACARA § 203 has many advantages over general non-LPR cancellation of removal and even over special rule cancellation under the Violence Against Women Act (VAWA). There are even certain scenarios where special rule cancellation or suspension may be sought affirmatively. If relief is granted, the beneficiary's status will be adjusted to that of lawful permanent resident (LPR). This article will explain who may benefit from the special cancellation rules under NACARA § 203, the application process, and the available benefits.

Permanent Bar - overview

In addition to the 3 and 10-year bars of inadmissibility for accruing unlawful presence in the United States, there is a more stringent bar of inadmissibility stemming from unlawful presence that is commonly called the “permanent bar.” The permanent bar of inadmissibility stems from accruing at least one year of unlawful presence in the United States and then subsequently attempting to reenter or reentering the United States without inspection. As its name suggests, the permanent bar is a far more daunting bar to inadmissibility than the 3 or 10-year bars.

Inadmissibility

Historically, the United States is a country of immigrants. Established by immigrants and developed by immigrants the USA has enjoyed both substantial benefits as well as serious setbacks associated with immigration into the country. This dichotomy eventually led to the need to determine who should be allowed to enter and stay in the USA. Congress enacted a number of laws to regulate the immigration process.

Conditional Bars to Establishing Good Moral Character (GMC) for Acts in Statutory Period

In order to be eligible for certain forms of relief from removal from the United States, such as voluntary departure and cancellation for non-Legally Permanent Residents (LPRs), the person seeking relief must demonstrate that he or she has been of “good moral character” (GMC) for the period of time for the relief requested (statutory period).

Expedited Removal

Under certain circumstances, an alien found inadmissible at the border may be subject to expedited removal. If an alien is subject to expedited removal, he or she will be removed without a hearing before an immigration judge. There are certain exceptions for aliens who would otherwise be subject to expedited removal if not for meeting the criteria for an exception. This article will discuss the grounds for expedited removal, the expedited removal process, and the circumstances in which an alien who would otherwise be subject to expedited removal may qualify for an exception.

Reinstatement of Removal

If an alien is found to have reentered the United States illegally after having been previously removed or having left under a grant of voluntary departure under a removal order, the alien may be subject to reinstatement of removal. Reinstatement of removal is a procedure where the Department of Homeland Security the previous removal order, and in its discretion, reinstates that prior removal order. Aliens ultimately subject to reinstatement of removal will not have the opportunity to have the reinstatement reviewed by an immigration judge. Where DHS is considering reinstatement of removal, an alien, depending on the facts of his or her situation, may have limited avenues to avoid reinstatement of removal.

Administrative Removal for Aggravated Felonies

Section 238(b) of the Immigration and Nationality Act (INA) contains an administrative removal procedure for non-lawful permanent resident aliens (LPRs) who are deportable due to a conviction for an aggravated felony. The removal procedure in 238(b) is a form of summary removal and as such, unless the alien either rebuts the charges or establishes eligibility for withholding of removal, will not be entitled to a hearing before a judge. This article will explain the administrative removal process in section 238(b) and describe the ways in which an alien who is charged under 238(b) may seek to avoid administrative removal.

How the BIA Has Applied the Circumstance-Specific Approach from Nijhawan v. Holder to Different INA Provisions

On June 15, 2009, the Supreme Court of the United States issued a decision titled Nijhawan v. Holder, 129 S.Ct. 2294 (2009). In Nijhawan, the Court held that adjudicators must apply the “circumstance-specific approach” to determining whether the commission of a fraud or deceit crime resulted in the loss of at least $10,000 to the victim(s), which is a requirement of an immigration aggravated felony under section 101(a)(43)(M)(i) of the Immigration and Nationality Act (INA). More broadly, the Supreme Court held that this same principle applies to immigration statutes where a term refers to conduct involved in commission of the offense rather than to an element of the offense. In this article, we will examine Board of Immigration Appeals (BIA) published decisions that have examined how the Nijhawan precedent applies to different immigration provisions.

Summary Removal on Security and Related Grounds

Pursuant to INA § 235(c), if an immigration officer or immigration judge suspects that an arriving alien is inadmissible under certain security or related grounds found in INA § 212(a)(3)(A), (B), or (C), the officer or immigration judge shall order that the alien be removed and submit the order for review by the Attorney General.

When Permanent Residents Cannot be Considered to be Seeking Admission

With very limited exceptions, a person admitted for lawful permanent residence cannot be considered to be “seeking admission” into the United States. This means that an LPR, unless he or she falls under one of the exceptions in section 101(a)(13)(C) of the Immigration and Nationality Act (INA), cannot be charged with inadmissibility under section 212(a). Rather, in order to be placed into removal proceedings, such an LPR would have to be charged with deportability under section 237.

Vladimirov v. Lynch: Due Process Rights in Immigration Proceedings

On November 10, 2015, the United States Court of Appeals for the Tenth Circuit rendered a decision with regard to the due process rights of an alien in removal proceedings that were triggered by a charge of marriage fraud. In Vladimirov v. Lynch, No. 13-9595 (10th Cir. Nov. 10, 2015), the Tenth Circuit rejected numerous arguments by the petitioner, Vladimir Vladimirov, that is due process rights had been violated in proceedings. In this article, we will examine the facts of the case, the Tenth Circuit’s decision, and the general applicability of the result.

INS v. Rios-Pineda: The Authority of the Attorney General to Deny Motions to Reopen

The Supreme Court decision in INS v. Rios-Pineda, 471 U.S. 444 (1985) affirmed the Attorney General’s broad discretion to deny a motion to reopen deportation proceedings where a moving party can establish a prima facie (on its face) case for eligibility for relief. The holding in the case is applicable to motions to reopen removal proceedings to apply for cancellation of removal. This article will explore the facts of Rios-Pineda, the reasoning behind the Supreme Court decision, and its effect as lasting precedent today.

Matter of C-C- (1948): Precedent for When an Alien Cannot be Deported for an Overstay

In this article, we will look at a short precedent Board of Immigration Appeals (BIA) decision titled In the Matter of C-C-, 3 I&N Dec. 221. In the first section, we will reproduce the decision in its entirety. In the conclusion, we will discuss the reasoning behind the decision and its value as precedent for situations regarding visa overstays today.

Godfrey v. Lynch (8th Cir.): Determining When Alien Made False Claim of U.S. Citizenship on Form I-9

On January 22, 2016, the United States Court of Appeals for the Eight Circuit issued a precedent decision in Godfrey v. Lynch, —- F.3d —-, (8th Cir. 2016). The case concerned an alien who was found inadmissible under section 212(a)(6)(C)(ii)(I) of the Immigration and Nationality Act (INA) for making a false representation of citizenship to obtain benefits under the INA. The charge stemmed from the alien checking a box on the Form I-9 that indicated he was “a citizen or national of the United States.” The Eighth Circuit ultimately affirmed the Board of Immigration Appeals’ (BIA’s) decision that the finding that the alien had intended to represent himself as a “citizen” and not as a “national” was supported by substantial evidence.

Matter of Y-S-L-C-: Admissibility of Respondent Testimony

On November 23, 2015, the Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015). The Board held that it is inappropriate to apply the Federal Rules of Evidence requirements for expert testimony to an alien testifying about events that he or she has personal knowledge of, and furthermore that the Federal Rules of Evidence are not binding on immigration proceedings. The Board also held that when an Immigration Judge acts in a manner unbecoming of an Immigration Judge, the case may be remanded to a new Immigration Judge. In this article, we will review the facts and procedural history of the Matter of Y-S-L-C-, the issues at hand, the Board's analysis and decision, and the broader effects of the precedent decision going forward.

Matter of Castro-Lopez: Counting the Continuous Physical Presence for NACARA Cancellation

On December 2, 2015, the Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of Castro-Lopez, 26 I&N Dec. 693. The BIA held that when an alien must meet a 10-year continuous physical presence requirement to satisfy the eligibility requirements for relief from removal under section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA), the 10-year period is measured from the time when the alien’s most recently incurred ground of removal rather than from his or her first incurred ground of removal, “at least where that ground is … listed in 8 C.F.R. 1240.66(c)(1). In this article, we will examine the facts of the Matter of Castro-Lopez, the Board’s reasoning in reaching its decision, and the effect of the precedent on applications for special rule cancellation of removal under NACARA.

Matter of Villalobos: Determining Whether Legalization Beneficiary Had Been Eligible for AOS in Proccedings

On March 10, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of Villalobos, 26 I&N Dec. 719 (BIA 2016). The decision concerned adjustment of status under section 245A of the Immigration and Nationality Act (INA) for applicants who entered the United States prior to January 1, 1982, and benefited from legalization also under 245A. The Board held that Immigration Judges have jurisdiction to determine whether an alien who adjusted to permanent resident status under section 245A(b)(1) was eligible for adjustment of status for purpose of determining the alien’s current removability and eligibility for relief from removal. Furthermore, the Board held that an alien who adjusted status through the legalization provisions in 245A must have been admissible when he or she applied for temporary resident status and again when he or she applied for adjustment of status under 245A(b)(1). Finally, the Board held that an alien who was inadmissible at the time he or she adjusted status under 245(b)(1) was not lawfully admitted for permanent resident and is ineligible for a waiver of inadmissibility under the old section 212(c) of the INA.

The Matter of M-H-Z-: No Duress Exception from the Material Support Bar

On June 9, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016). The issue question for the Board was whether there is an exception from the “material support bar” to asylum and withholding of removal if such material support was rendered under duress. The Board held that there is no duress exception to the material support bar. In this article, we will review the facts of the case, the Board’s analysis and decision, and the broader effects of the decision on asylum applications.

Eligibility for Statutory Withholding of Removal

An alien who is subject to removal proceedings may seek withholding of removal. Withholding of removal allows for an alien to seek relief from removal if his or her life or freedom would be threatened in his or her home country on account of race, religion, nationality, membership in a particular social group, or political opinion. Through the withholding of removal process, the alien may be granted relief through the statutory provisions found in section 241(b)(3) of the Immigration and Nationality Act (INA) or through the Convention Against Torture (either withholding of removal or deferral of removal). In this article, we will discuss the rules surrounding eligibility for statutory withholding of removal.

Eligibility for Withholding of Removal and Deferral of Removal under the Convention Against Torture

An alien may apply for withholding of removal in removal proceedings. Although asylum and withholding of removal are distinct forms of relief, an application for asylum within removal proceedings will automatically allow the alien to be considered for withholding of removal. An alien may only be granted withholding after a final order of removal is entered. An alien may be granted withholding of removal under the statutory provisions found in section 241(b)(3) of the Immigration and Nationality Act (INA) or through the Convention Against Torture. An alien may also be granted deferral of removal under the Convention Against Torture in lieu of withholding. In this article, we will discuss the rules surrounding eligibility for withholding of removal and deferral of removal under the Convention Against Torture.

Burden of Proof for Relief Under the Convention Against Torture

In order to demonstrate eligibility for withholding of removal or deferral of removal under the Convention Against Torture, an alien must demonstrate that it is “more likely than not” that he or she would be tortured in the country of intended removal. In this article, we will examine the applicable regulations and administrative and judicial precedent regarding meeting the burden of proof in order to demonstrate eligibility for relief under the Convention Against Torture.

Issues for Aliens Who Have Been Granted Deferral of Removal

An alien who demonstrates eligibility for withholding of removal under the Convention Against Torture, but who is ineligible to have his or her removal deferred due to being subject to a mandatory ground for the denial of withholding of removal, will instead be granted deferral of removal. An alien who is granted deferral of removal will have his or her removal temporarily deferred, but may remain subject to immigration detention or to removal to a third country where he or she would not be at risk of being tortured. In this article, we will examine several adjudicative issues for aliens who have been granted deferral of removal.

Grounds for the Mandatory Denial of Withholding of Removal

Section 241(b)(3)(B) of the Immigration and Nationality Act (INA) lists mandatory denial grounds for withholding of removal. An alien who would otherwise be eligible for statutory withholding of removal may be denied withholding if he or she is subject to a mandatory denial ground. An alien who is subject to a mandatory denial ground and who would otherwise be eligible for withholding of removal under the Convention Against Torture will be granted deferral of removal in lieu of withholding of removal. In this article, we will explore administrative and judicial precedent on the mandatory denial grounds.

Particularly Serious Crimes in the Withholding of Removal Context

Section 241(b)(3) of the Immigration and Nationality Act (INA) lists several mandatory denial grounds for withholding of removal. Among these is section 241(b)(3)(ii) of the Immigration and Nationality Act (INA), which encompasses a conviction for a particularly serious crime. In this article, we will examine administrative and judicial precedent surrounding the particularly serious crime mandatory denial ground to withholding of removal.

Serious Nonpolitical Crimes in the Withholding of Removal Context

Section 241(b)(3) of the Immigration and Nationality Act (INA) specifies several mandatory denial grounds for withholding of removal. Under section 241(b)(3)(iii), an alien for whom the Attorney General has serious reasons to believe committed a serious nonpolitical crime outside of the United States will be ineligible for withholding of removal. In this article, we will examine the administrative and judicial precedent regarding serious nonpolitical crimes in the withholding of removal context.

Relationship Between Order of Removal and Order of Withholding of Removal

On January 10, 2008, the Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of I-S- & C-S-, 24 I&N Dec. 432 (BIA 2008). In its decision, the Board held that, when an immigration judge issues a decision granting an alien’s application for statutory withholding of removal under section 241(b)(3) of the Immigration and Nationality Act (INA) without a grant of asylum, the immigration judge’s decision “must include an explicit order of removal.” In this article, we will examine the underlying statutes, the facts of the case, and the significance of the precedent in the Matter of I-S- & C-S-.

Withholding of Removal for Aliens Subject to Expedited Removal (as aggravated felons) or Reinstatement of Removal

An alien who is subject to removal regular removal proceedings under section 240 of the Immigration and Nationality Act (INA) may apply for asylum and withholding of removal (under section 241(b)(3) and/or the Convention Against Torture) to seek relief from removal. In such cases, an application for withholding of removal may only be adjudicated in immigration court and may be then reviewed by the Board of Immigration Appeals (BIA) and by federal courts. However, under special removal proceedings found in sections 235(c), 238(b), and 241(a)(5) of the INA, an alien may be issued a final order of removal without having a hearing before an immigration judge. For these special removal situations, the INA and the implementing regulations provide special means for aliens to seek withholding of removal through a “credible fear interview” in the section 235(c) context and a “reasonable fear interview” in the section 238(b) and 241(a)(5) context. In this article, we will review reasonable fear determinations for aliens ordered removed under sections 238(b) or 241(a)(5) of the INA.

Applying for Withholding of Removal in Section 240 Removal Proceedings

Certain aliens in removal proceedings may be eligible for relief from removal in the form of an order of withholding of removal. An applicant who files an application for asylum shall have his or her application also considered for withholding of removal if the applicant is already in removal proceedings. However, an applicant may apply for withholding even if he or she is ineligible under statute to apply for asylum. An Immigration Judge may only grant withholding of removal once the alien has been issued a final order of removal. In this article, we will examine the rules for seeking withholding of removal in regular section 240 removal proceedings.

The Matter of M-J-K- (Mental Competency Safeguards in Immigration Proceedings)

On June 29, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of M-J-K-, 26 I&N Dec. 773 (BIA 2016). The Board held that in immigration proceedings where there are mental competency concerns regarding the alien, the Immigration Judge has discretion to select and implement appropriate safeguards to allow the proceedings to go forward. The Board also held that on appeal, it will review such safeguards de novo (from the beginning). In this article, we will discuss the Board’s analysis and decision in the Matter of M-J-K- and what the precedent means going forward.

The Matter of J-S-S- (Burden for Determining Mental Competence in Immigration Proceedings)

The Board of Immigration Appeals (BIA) issued an important decision in Matter of J-S-S- on November 2, 2015. The decision addressed the following question: Who has the formal burden of proof in immigration proceedings to establish whether the alien (respondent) is mentally competent when indicia of incompetency are identified? In plain English: If there is evidence suggesting that a respondent in immigration proceedings is mentally incompetent, who has the burden to determine whether the respondent is mentally competent?

Matter of Richmond, 26 I&N Dec. 779 (BIA 2016): Analysis of Inadmissibility Provision for False Claim to Citizenship

On July 28, 2016, the Board of Immigration Appeals (BIA) issued an important precedent decision regarding inadmissibility for making a false claim to U.S. citizenship under section 212(a)(6)(C)(ii)(I) of the Immigration and Nationality Act (INA) in the Matter of Richmond, 26 I&N Dec. 779 (BIA 2016). The Board held that, under section 212(a)(6)(C)(ii)(I), an alien is inadmissible if there is direct or circumstantial evidence that he or she made a false claim to U.S. citizenship with the subjective intent of obtaining a purpose or benefit under the INA or under any other U.S. federal or state law where such U.S. citizenship actually matters with regard to the purpose or benefit sought. The Board held that while there is a distinction between achieving a purpose and obtaining a benefit under the provision, avoiding removal proceedings qualifies as a “purpose” under section 212(a)(6)(C)(ii)(I). In this article, we will examine the facts of the Matter of Richmond, the Board’s holding, and the effect of the new precedent decision going forward.

Matter of Richmond, 26 I&N Dec. 779 (BIA 2016): Facts and Decision

On July 28, 2016, the Board of Immigration Appeals (BIA) issued an important precedent decision regarding inadmissibility on the ground of making a false claim to U.S. citizenship under section 212(a)(6)(C)(ii)(I) of the Immigration and Nationality Act (INA) in the Matter of Richmond, 26 I&N Dec. 779 (BIA 2016). In this article, we will discuss the specific facts of the case and the Board’s decision based on its analysis of section 212(a)(6)(C)(ii)(I) of the Immigration and Nationality Act (INA). When prompted, before reading the section on the Board’s ultimate decision, we encourage you to first read our full article about the Board’s analysis of the statute in the Matter of Richmond, 26 I&N Dec. at 783-89. This article will illustrate how the Board’s reading of section 212(a)(6)(C)(ii)(I) applies to the facts of a specific case wherein an alien made a false claim to U.S. citizenship to achieve the “purpose” of avoiding removal proceedings under the INA.

Immigration Civil Enforcement Priorities (from Nov. 20 DHS Memorandum)

On November 20, 2014, the Secretary of the Department of Homeland Security (DHS), Jeh Johnson, released a memorandum detailing revised immigration enforcement priorities titled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants.” The policy guidance took effect on January 5, 2015. The memorandum set forth three civil immigration enforcement priorities. The memorandum remains guidance for the Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and the United States Citizenship and Immigration Services (USCIS). In this article, we will examine the background of the enforcement priorities, the three enforcement priorities, and the future for prosecutorial discretion in setting enforcement prioritization levels.

Immigration and Customs Enforcement FAQ on DHS Civil Enforcement Priorities

On November 20, 2014, the Secretary of Homeland Security, Jeh Johnson, released a Memorandum detailing three distinct levels of civil immigration enforcement priorities for the immigration components of the DHS. The priorities set forth in the Memorandum are guidance for the officers of the Customs and Border Protection (CBP), Immigrations and Customs Enforcement (ICE), and United States Citizenship and Immigration Services (USCIS). In this article, we will review an ICE FAQ about these enforcement priorities that was published in June of 2015.

Foreign Terrorist Organization Designation for Al-Nursah Front Amended

The INA contains both inadmissibility and deportability provisions for those involved in a Foreign Terrorist Organization. In this article, we will examine the designation of the Al-Nursa Front with its many aliases as a Foreign Terrorist Organization. The Al-Nursa Front is a Foreign Terrorist Organization primarily active in Syria, but also active in Iraq and several surrounding states. On November 14, 2016, Secretary of State John Kerry amended the designation of the Al-Nursa Front to encompass aliases that were not included in its previous designations.

Matter of W-A-F-C-, 26 I&N Dec. 880 (BIA 2016): DHS May Be Granted Continuance to Properly Serve NTA on Minor

On December 16, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of W-A-F-C-, 26 I&N Dec. 880 (BIA 2016) . In its decision, the Board held that when the Department of Homeland Security (DHS) seeks to re-serve a respondent with a notice to appear after the initial attempt at service was defective under the rules for serving minors under the age of 14, a continuance of proceedings should be granted for the purpose of re-serving the notice to appear. In this article, we will examine the facts and procedural history of the Board’s decision in the Matter of W-A-F-C-, its reasoning, and the effect of the new precedent decision going forward.

Scope and History of Section 212(f) Presidential Authority to Suspend/Restrict Entry by Proclamation

Section 212(f) of the Immigration and Nationality Act (INA) gives the President of the United States broad authority to implement immigration restrictions by proclamation. The statute allows the President to suspend the entry of any aliens or of a class of aliens or place restrictions on the entry of a class of aliens temporarily if he or she determines that the entry of such aliens would be detrimental to the U.S. interest. In this article we will examine the language of section 212(f), its scope, and previous uses of the statute as well as precedent case-law on the provision.

Section 212(f) on Suspension of Entry of Aliens Arriving on Non-Compliant Airliners

Section 212(f) of the Immigration and Nationality Act (INA) is split into two parts. The first part of Section 212(f) codifies the President of the United States’ broad authority to suspend the entry of any aliens or of any class of aliens if the President determines that such entry would be detrimental to the interests of the United States by presidential proclamation. The second part gives the Attorney General the authority to suspend the entry of aliens arriving on certain airliners that are not in compliance with applicable regulations relating to document fraud.

Trump Administration Enforcement Priorities (issued Jan. 25, 2017)

On January 25, 2017, President Donald Trump issued Executive Order 13768, “Enhancing Public Safety in the Interior of the United States.” In this article, we will discuss the Executive Order’s provisions on removal priorities, and examine how the Executive Order may represent a change from the civil enforcement priorities issued under former President Barack Obama in November of 2014.

Overview of the Kelly Border Security Memorandum (Trump EO)

On January 20, 2017, Secretary of Homeland Security John F. Kelly issued a Memorandum titled “Implementing the President’s Border Security and Immigration Enforcement Improvements Policies.” The Memorandum provides guidance for Department of Homeland Security (DHS) officers in implementing the policies set forth in President Donald Trump’s Executive Order (EO) 13767 titled “Border Security and Immigration Enforcement Improvements.” The Memorandum covers various issues related primarily to border security. In this article, we will provide a general overview of the contents of the Memorandum.

Kelly Memorandum on Unaccompanied Minor Children Apprehended at the Border (Trump EO)

On February 20, 2017, the Secretary of Homeland Security, John F. Kelly, issued a Department of Homeland Security (DHS) Memorandum titled “Implementing the President’s Border Security and Immigration Enforcement Improvements Policies” (“Border Memo”). The purpose of the Border Memo is to provide policy guidance regarding the implementation of President Donald Trump’s January 25, 2017, Executive Order 13767 titled “Border Security and Immigration Enforcement Improvements.” In this article, we will review the guidance of the Border Memo regarding the treatment of unaccompanied alien children who are encountered at the border.

Overview of the Kelly Interior Enforcement Memorandum (Trump EO)

On January 20, 2017, the Secretary of Homeland Security, John F. Kelly, issued a Memorandum titled “Enforcement of the Immigration Laws to Serve the National Interest” (“Interior Enforcement Memo”). The Interior Enforcement Memo provides guidance for Department of Homeland Security (DHS) officers in implementing President Donald Trump’s January 25, 2016 Executive Order (EO) 13768 titled “Enhancing Public Safety in the Interior of the United States.” In this article, we will assess each section of the Interior Enforcement Memo.

Kelly Memorandum on Enforcement Priorities (Trump EO)

On January 20, 2017, the Secretary of Homeland Security, John F. Kelly, issued a Memorandum titled “Enforcement of the Immigration Laws to Serve the National Interest” (“Interior Enforcement Memo”). In this article, we will focus on the Interior Enforcement Memo’s new immigration enforcement priorities.

Differences Between President Trump's New Travel Executive Order and the Original

On March 6, 2017, President Donald Trump issued an Executive Order titled “Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States.” This Executive Order provides for the temporary suspension of immigration from six countries, cuts to the U.S. Refugee Program for 2017, and directs the implementation of various other policies. The new Executive Order, which becomes effective on March 16, 2017, revokes the January 27, 2017 Executive Order 13769, of the same name, and replaces it. In this post, we will provide a brief overview of the changes made by President Trump made in the new Executive Order from the first version.

Suspension of Entry For Nationals of Six Countries Under President Trump's March 6 Travel Order

On March 6, 2017, President Donald Trump signed an Executive Order titled “Executive Order Protecting the Nation From Foreign Terrorist Entry Into The United States” (“Travel Order”). This Executive Order revokes and replaces an Executive Order of the same name issued by President Trump on January 27, 2017. In this article, we will provide a comprehensive overview of the March 6, 2017 Travel Order as it pertains to the suspension of entry for individuals from six countries.

Deportability on Public Charge Grounds

The Immigration and Nationality Act (INA) contains a deportability provision for an alien who becomes a “public charge” within 5 years of entry into the United States when the alien cannot affirmatively show that he or she became a public charge for reasons that arose subsequent to entry. This provision affects aliens who are not exempt from the public charge ground of inadmissibility. In this article, we will examine the relevant statutes, agency guidance, and administrative precedent regarding the public charge deportability ground.

Second Circuit Rejects 5th and 8th Amendment Arguments Against Removal for Unlawful Presence in the United States

On March 27, 2017, the United States Court of Appeals for the Second Circuit issued a decision in Marin-Marin v. Sessions, 15-2074. The case concerned a petitioner who sought review of an order of the Board of Immigration Appeals (BIA) affirming the decision of an Immigration Judge ordering him removed from the United States. The petitioner sought review, arguing that immigration judges are required to determine whether removal is constitutionally proportionate to the grounds for removal. The Second Circuit rejected the petitioner’s argument and denied the petition for review on the basis that removal is not a punishment and thus not subject to proportionality review. In this article, we will examine briefly the facts of the case, the petitioner’s arguments, and the Second Circuit’s reasons for issuing the decision.

Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017): Contested Motions to Administratively Close or Recalendar Proceedings

On April 18, 2017, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017). In the Matter of W-Y-U-, the Board held that, when evaluating whether to administratively close or calendar immigration proceedings, the Immigration Judge must consider primarily “whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.” On this point, the Board clarified its published decision in the Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012). The Board also held that, in considering the appropriateness of administrative closure, an Immigration Judge may not consider whether an alien falls under the enforcement priorities of the Department of Homeland Security (DHS). In this article, we will examine the facts of the case, the Board’s reasoning and decision, and the likely effect of the Matter of W-Y-U- precedent going forward.

ICE Changes Policy for Granting Stays of Removal in Response to Private Bills

On May 5, 2017, the Acting Director of the United States Immigration and Customs Enforcement (ICE), Thomas Homan, wrote a letter to Senate leadership informing it of changes in ICE policy regarding the granting of stays of removal in connection with private immigration bills. Generally, individual members of Congress may submit private legislation on behalf of specific individuals who have exhausted all other avenues for relief from removal. In this article, we will explain the private bill process as it existed before the change in policy and the new policy articulated by Acting Director Homan.

Matter of Falodun, 27 I&N Dec. 52 (BIA 2017): Certificate of Citizenship can be Revoked Without Denatz Proceedings

On June 2, 2017, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Falodun, 27 I&N Dec. 52 (BIA 2017). The Board made two key holdings in this decision. First, it held that a certificate of citizenship, unlike a Certificate of Naturalization, does not confer United States citizenship. Rather, it merely “provides evidence that the applicant previously obtained citizenship status.” Second, the Board held that judicial denaturalization proceedings are not required to revoke a certificate of citizenship. Instead, the Department of Homeland Security (DHS) may revoke a certificate of citizenship administratively upon determining that the applicant is not entitled to the claimed citizenship status. In this article, we will examine the facts and procedural history of the Matter of Falodun, the Board’s analysis and decision, and what the decision will mean going forward as administrative precedent.

April 2017 ICE/AILA Q&A on New Immigration Enforcement Policies

On June 6, 2017, the American Immigration Lawyers Association (AILA) posted the official Q&As from the April 6, 2017 AILA liaison meeting with the United States Immigration and Customs Enforcement (ICE). In the Q&A, ICE answered several questions relating to policy changes subsequent to the issuance of President Donald Trump’s January 25, 2017 Executive Orders and Homeland Security Secretary John Kelly’s implementing memoranda. In this post, we will examine some of the key points from the Q&A.

New Guidance on Motions for Continuance and Administrative Efficiency

On July 31, 2017, Chief Immigration Judge MaryBeth Keller released a memorandum titled “Operating Policies and Procedures Memorandum 17-01: Continuances.” The Operating Policies and Procedures Memorandum (OPPM) supplements a March 7, 2013 OPPM on continuances and administrative closure. In this article, we will examine the new OPPM 17-01 and its effects going forward.

Matter of D-R-, 25 I&N Dec 455 (BIA 2011), 27 I&N Dec. 105 (BIA 2017): Facts and Procedural History

In this article, we will provide an overview of the facts and procedural history of the precedent Board of Immigration Appeals (BIA) decisions in the Matter of D-R-, 25 I&N Dec. 455 (BIA 2011), and the Matter of D-R-, 27 I&N Dec. 105 (BIA 2017). These decisions touch on a variety of issues, but chief among them are adjudicating when a “misrepresentation of a material fact” is “material” for purpose of inadmissibility under section 212(a)(6)(C)(i) of the INA, and adjudicating whether an alien is removable under section 237(a)(4)(D) for having assisted or otherwise participated in extrajudicial killings. After explaining the procedural history of the case, we will examine the underlying facts in detail. Then we will provide links to our full articles on specific issues addressed in the decisions as well as to related articles that involve similar issues.

Matter of D-R-, 27 I&N Dec. 105 (BIA 2017): Determining Whether Misrepresentation is "Material" for Inadmissibility

On September 14, 2017, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of D-R-, 27 I&N Dec. 105 (BIA 2017). This decision followed Matter of D-R-, 25 I&N Dec. 445 (BIA 2011). In the second Matter of D-R-, the Board defined the term “material” in section 212(a)(6)(C)(i) of the Immigration and Nationality Act. The decision provides guidance for when a misrepresentation is “material” such that it causes inadmissibility under section 212(a)(6)(C)(i). In this article, we will examine both Matter of D-R- 2011 and 2017 with respect to the Board’s analysis of material representation.

Matter of D-R-, 27 I&N Dec. 105 (BIA 2017): Analysis of "Assisted, or Otherwise Participated In" a Extrajudicial Killing

On September 14, 2017, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of D-R-, 27 I&N Dec. 105 (BIA 2017). This decision followed Matter of D-R-, 25 I&N Dec. 445 (BIA 2011). In the 2017 Matter of D-R-, the Board provided a definition of the term “assisted, or otherwise participated in” a extrajudicial killing. The decision provides rules for interpreting the phrase not only in the inadmissibility/deportability context for extrajudicial killings, but also for the persecutor bar to asylum and withholding of removal. In this article, we examine the extensive procedural history behind both Matter of D-R- decisions and what the new rules will mean going forward.

Matter of D-R-, 25 I&N Dec. 445, 457-64 (BIA 2011): Admissibility of Evidence in Removal Proceedings

In Matter of D-R- 2011, the respondent argued against his removal in part by arguing that the documentary evidence and expert testimony relied upon by the Immigration Judge in determining that he was removable were inadmissible and unreliable. The respondent also challenged the competency of his interpreter in hearings before the Immigration Judge. The Board rejected these arguments in the first Matter of D-R- and reaffirmed its conclusions without further analysis in the second Matter of D-R- decision. In this article, we will examine the Board’s analysis on these points from the first Matter of D-R- decision, as well as the Board’s reasoning for rejecting the respondent’s other applications for relief from removal.

USCIS Rescinds and Replaces Hold Policy for Certain TRIG Cases

On October 19, 2017, the United States Citizenship and Immigration Services released a new Policy Memorandum (PM)-602-0150 titled “Revised Guidance for Processing Cases Subject to Terrorism-Related Inadmissibility Grounds and Rescission of the Prior Hold Policy for Such Cases.” The new memorandum rescinds guidance requiring administrative holds in certain cases where an applicant was determined to be inadmissible under a specific terrorism-related inadmissibility provision. It then provides new guidance for these cases. In this article, we will examine the effect of the new policy and the background of the old policy regarding holds for those charged with terrorism-related inadmissibility grounds.

Matter of Sanchez-Herbert, 26 I&N Dec. 43 (BIA 2012): Departing Voluntarily Does Not Compel Termination of Proceedings

On November 2, 2012, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in the Matter of Sanchez-Herbert, 26 I&N Dec. 43 (BIA 2012). In the decision, the Board held that it is not appropriate to terminate removal proceedings for an alien who fails to appear because he departed the United States if the alien received proper notice of the hearing and is removable as charged. The decision was cited to recently in Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168 (BIA 2017), which we discuss in a full article on site.

Matter of Brown, 18 I&N Dec. 324 (BIA 1982): Effect of Departure and Return on Immigration Proceedings and Former 212(c) Relief

On September 30, 1982, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in the Matter of Brown, 18 I&N Dec. 324 (BIA 1982). The Board held that once deportation proceedings are commenced against an alien, the proceedings are not nullified by the absence of the alien from the United States provided that the allegations and charges stated in the Order to Show Cause remain applicable. Although the deportation proceedings at issue in Matter of Brown have since been supplanted by removal proceedings, the this holding of Matter of Brown remains good law. The Board also held that a departure and reentry during proceedings does not necessarily moot a pending application for a waiver of deportation under the former section 212(c) of the Immigration and Nationality Act (INA). In this article, we will examine the Matter of Brown decision and subsequent references to the decision.

New Sessions Memo for EOIR on Timely and Effective Adjudication of Immigration Cases

On December 5, 2017, United States Attorney General Jeff Sessions issued a memorandum for the Executive Office of Immigration Review (EOIR) titled “Reviewing Our Commitment to the Timely and Efficient Adjudication of Immigration Cases to Serve the National Interest.” The Department of Justice (DOJ) also issued a document outlining the background of the provisions set out in the memorandum. In the memorandum, Sessions detailed principles for the EOIR to follow going forward to reduce its ever-growing case-load. In this post, we will examine the new Sessions memorandum.

New Rule Allows IJs/BIA to Deny Applications for Suspension/Cancellation After Annual Limit on Grants Has Been Reached

On December 5, 2017, Executive Office for Immigration Review (EOIR) published a final rule in the Federal Register (FR) titled “Procedures Further Implementing the Annual Limitation on Suspension of Deportation and Cancellation of Removal” (see 82 FR 57336). The most important aspect of this new final rule is that it authorizes immigration judges and the Board of Immigration Appeals (BIA) to issue final decisions denying applications for cancellation of removal or suspension of deportation regardless of whether the annual limit on grants of cancellation and suspension have been reached. This important change only applies to prospective cases. Additionally, the final rule made a technical change to a regulatory provision regarding certain procedures that were only applicable in 1998. In this article, we will review the new rule and examine its potential effects going forward.

Guidance on Denials and Reserved Grants of Cancellation of Removal or Suspension of Deportation

On December 5, 2017, the Executive Office for Immigration Review (EOIR) published a new final rule which authorizes immigration judges to issue final decisions denying applications for cancellation of removal or suspension of deportation regardless of whether the annual limit for grants of cancellation and suspension have been reached. Under the previous rules, immigration judges were required to reserve all final decisions on all applications for cancellation of removal and suspension of deportation once the annual limit for grants of cancellation and suspension had been reached. In this article, we will review an EOIR memorandum on the implementation of the new rule titled “Operating Policies and Procedures Memorandum 17-04: Applications for Cancellation of Removal and Suspension of Deportation that are subject to the Cap” (“OPPM 17-04”).

EOIR Guidance on Juvenile Respondents and Witnesses in Immigration Proceedings

In December 20, 2017, Chief Immigration Judge MaryBeth Keller released “Operation Policies and Procedures Memorandum 17-03: Guidelines for Immigration Court Cases Involving Juveniles, Including Unaccompanied Alien Children” (“OPPM 17-03”). OPPM 17-03 provides policy guidance for immigration courts on the handling of cases involving juveniles. It also rescinds and replaces guidance issued on May 22, 2007, OPPM 07-01, issued on the same subject. In this article, we will review the guidance in OPPM 17-03.

EOIR Guidance on the Meaning of the Judicial Robe Worn by Immigration Judges

On October 17, 1994, then-Chief Immigration Judge Michael J. Crappy issued “Operating Policies and Procedures Memorandum Number 94-10: Wearing of the Robe During Immigration Judge Hearings” (“OPPM 94-10”). OPPM 94-10 details the significance of the robe worn by an immigration judge during proceedings and the policies for the exception to the requirement that he or she wear a robe. OPPM 94-10 was slightly modified over two decades later by “Operating Policies and Procedures Memorandum 17-03: Guidelines for Immigration Court Cases Involving Juveniles, Including Unaccompanied Alien Children” (“OPPM 17-03”). OPPM 17-03 modified the rules for removing the immigration judge’s role in order to better put juvenile respondents or witnesses at ease. In this article, we will examine OPPM 94-10 in detail, including how it was subsequently modified by OPPM 17-03.

Facts about the Institutional Hearing Program

In January 2018, the Executive Office for Immigration Review (EOIR) released an interesting fact sheet on the Institutional Hearing Program. The purpose of the program is to identify criminal aliens who are serving sentences in Federal prison in order that their deportation/exclusion/removal proceedings can be completed while they are serving their sentence. The expansion of the Institutional Hearing Program has been an early priority of the Trump Administration’s new immigration enforcement strategy. In this article, we will examine the new EOIR Fact Sheet on the Institutional Hearing Program to better understand what is becoming a larger immigration enforcement tool for the government.

Guidance on Change of Venue in Immigration Proceedings

On January 17, 2018, Chief Immigration Judge MaryBeth Keller published “Operating Policies and Procedures Memorandum 18-01: Change of Venue” (“OPPM 18-01”). As the name suggests, OPPM 18-01 provides guidance to immigration judges on adjudicating requests for a change in venue. OPPM 18-01 OPPM 18-01 replaces a 2001 OPPM (OPPM 01-02) on the same subject. In this article, we will examine the guidance on change of venue found in OPPM 18-01.

Matter of Castro-Tum, 27 I&N Dec. 187 (A.G. 2018): A.G. Sessions Reviews Administrative Closure

On January 4, 2018, United States Attorney General Jeff Sessions directed the Board of Immigration Appeals (BIA) to refer one of its unpublished decisions to him for review. This marks the first time that Sessions has referred a BIA decision to himself for review. The Attorney General’s decision, Matter of Castro-Tum, 27 I&N Dec. 187 (A.G. 2018), requests briefing by the parties and by amici on several issues involving the authority – or lack thereof – of Immigration Judges and of the BIA to administratively close immigration proceedings. The breadth of the questions signals that the Attorney General may be considering a sweeping new precedent decision on the issue that would have a dramatic effect on immigration proceedings going forward.

Section 237 Deportability Statutes: Failure to register and falsification of documents

Section 237 of the Immigration and Nationality Act (INA), titled “deportable aliens,” contains provisions for the removal of aliens from within the United States. Section 237 also includes limited provisions for waivers of inadmissibility.In this section, we will review the deportability provisions found in section 237(a)(3) of the INA, which is titled “Failure to register and falsification of documents.”

Three BIA Decisions on Deportability for Failure to Register an Address

On March 2, 1954, the Board of Immigration Appeals (BIA) issued a published decision in Matter of B-, 5 I&N Dec. 692 (BIA 1954). Matter of B- concerned the former section 241(a)(5) of the Immigration and Nationality Act (INA), which renders deportable an alien who fails to comply with the provisions of (former and current) section 265 of the INA, which requires aliens to notify the Government of his or her address (in less otherwise exempted). Specifically, the case analyzed the limited exception from deportability under section 241(a)(5) for an alien whose failure to report an address as required was “reasonably excusable or was not willful.” The current section 237(a)(3)(A) of the INA contains identical language to former section 241(a)(5), meaning that despite its age, Matter of B- remains a relevant decision in the context of the limited exception to deportability contained in section 237(a)(3)(A). In this article, we will examine the Matter of B- decision in its entirety. Furthermore, we will also briefly examine the Board’s decisions the same limited exception from deportability under section 241(a)(5) in Matter of M-, 5 I&N Dec. 216 (BIA 1953) and Matter of T-, 5 I&N Dec. 459 (BIA 1953). In the conclusion, we will summarize what these decisions mean for section 237(a)(3)(A) today.

Section 237 Deportability Statutes: Security and related grounds

Section 237 of the Immigration and Nationality Act (INA) contains grounds for which an alien who is in the United States after having been admitted or having had his or her status adjusted to that of lawful permanent resident may be removed. In this article, we will provide an overview of the various security and related grounds of deportability found in section 237(a)(4) of the INA. Section 237(a)(4) contains the deportability provisions for security and related grounds.

Inadmissibility and Deportability for Unlawful Voters

The Immigration and Nationality Act (INA) contains nearly identically-worded inadmissibility and deportability provisions for unlawful voters. The inadmissibility provision is found in section 212(a)(10)(D) of the INA, and the deportability provision is found in section 237(a)(6). In both, aliens who violate a law relating to unlawful voting are covered. Each provide for a limited exception for certain aliens who voted unlawfully, but who had permanently resided in the United States prior to attaining the age of 16, had U.S. citizen parents, and who reasonably believed at the time of the violation that he or she was a U.S. citizen. In this article, we will examine the immigration penalties for unlawful voting and when these provisions apply.

Section 237 Deportability Statutes: Inadmissible at time of entry or of adjustment of status or violates status

Section 237 of the Immigration and Nationality Act (INA), codified as 8 U.S. Code 1227, is titled “Deportable aliens.” This section provisions for the deportability of aliens who have been admitted into the United States. In addition to listing the deportability provisions, section 237 also lists waivers applicable to many of these provisions. In this article, we will provide a brief overview of section 237(a)(1) relating to aliens “[i]nadmissible at time of entry or of adjustment of status or [who] [violate] status.” This section will cover both the deportability provisions and the associated waivers, where applicable.

Matter of Fitzpatrick, 26 I&N Dec. 559 (BIA 2015): Examining Deportability Provision for Unlawful Voters

On May 7, 2015, the Board of Immigration Appeals (BIA) issued a published decision in Matter of Fitzpatrick, 26 I&N Dec. 559 (BIA 2015). In Matter of Fitzpatrick, the Board held that an alien who voted in an election involving candidates for Federal office in violation of 18 U.S.C. 611 is deportable under section 237(a)(6)(A) (unlawful voting), regardless of whether he or she knew that the voting was unlawful. Matter of Fitzpatrick is the Board’s most notable statement on the unlawful voting deportability ground in section 237(a)(6)(A). Furthermore, its reasoning extends to the nearly identical inadmissibility ground for unlawful voting found in section 212(a)(10)(D). In this article, we will examine the facts and procedural history of Matter of Fitzpatrick, the Board’s analysis and conclusions, and what the decision means today.

Section 237 Deportability Statutes: General Crimes

Section 237 of the Immigration and Nationality Act (INA), codified as 8 U.S. Code 1227, is titled “Deportable aliens.” This section provides for the deportability of aliens who have been admitted into the United States. In addition to listing the deportability provisions, section 237 also lists waivers applicable to many of these provisions. In this article, we will provide a brief overview of the clauses found in section 237(a)(2) related to deportability for criminal offenses, and the associated waivers, where applicable.

Matter of Castillo Angulo, 27 I&N Dec. 194 (BIA 2018): "Admission in Any Status" Requirement for Cancellation

On January 29, 2018, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in Matter of Castillo Angulo, 27 I&N Dec. 194 (BIA 2018). The issue in Matter of Castillo Angulo addressed when an alien, who was “waved through” at a port of entry, has established admission “in any status,” as defined in section 240A(a)(2) of the Immigration and Nationality Act (INA), for purpose of cancellation of removal for certain permanent residents. The Board held that, within the jurisdiction of the United States Courts of Appeals for the Fifth and Ninth Circuits, an alien who was “waved through” at a port of entry has established an admission “in any status” under section 240A(a)(2). The Board reached this conclusion because it was bound by precedent decisions of the Fifth and Ninth Circuits. However, the Board held that outside of the jurisdiction of the Fifth and Ninth Circuits, “an alien must prove that he or she possessed some form of lawful immigration status at the time of admission” in order to satisfy the “admitted in any status” requirement of section 240A(a)(2). In this article, we will examine the factual and procedural history of Matter of Castillo Angulo, the Board's analysis and conclusions, and what the decision means going forward.

Matter of Castillo Angulo, 27 I&N Dec. 194, 203-06 (BIA 2018): Concurring and Dissenting Opinion

On January 29, 2018, the Board of Immigration Appeals (BIA) issued a published decision in Matter of Castillo Angulo, 27 I&N Dec 194 (BIA 2018). The Board held that in order to establish having been “admitted in any status” for purpose of cancellation of removal for certain permanent residents under section 240A(a)(2) of the Immigration and Nationality Act (INA), an alien must prove that he or she possessed some form of lawful immigration status at the time of admission. However, the Board did not extend its rule in causes of action arising in the jurisdictions of the United States Courts of Appeals for the Fifth and Ninth Circuits due to contrary precedent in those circuits. In cases arising in the jurisdiction of the Fifth and Ninth Circuits, a “wave through” entry is deemed to constitute admission “in any status” for cancellation purposes. We discuss the Matter of Castillo Angulo decision and its ramifications in detail in our full article on the subject. Before continuing with this post, please read the full article on the case. In this post, we will discuss an interesting opinion authored by Board Member Roger A. Pauley concurring in part and dissenting in part with the majority opinion in Matter of Castillo Angulo. Although Board Member Pauley’s decision is not controlling, it is worth examining given the split not only between the Board and the Fifth and Ninth Circuits, but also within the Board itself.

Analysis of ICE Directive: "Civil Immigration Enforcement Actions Inside Courthouses"

On January 10, 2018, the United States Immigration and Customs Enforcement (ICE) issued Directive Number 11072.1: Civil Immigration Enforcement Actions Inside Courthouses. The Directive is for official ICE use only. The Directive sets forth policies guiding ICE immigration enforcement actions inside federal, state, and local courthouses. In this article, we will examine the ICE Directive and what it means going forward. Furthermore, we will also examine a related ICE FAQ for the public that addresses the issues in the directive.

Matter of L-M-P-, 27 I&N Dec. 265 (BIA 2018): Alien with Reinstated Removal Order Not Eligible for Asylum

On April 27, 2018, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in the Matter of L-M-P-, 27 I&N Dec. 265 (BIA 2018). Matter of L-M-P- involved the denial by an Immigration Judge of a motion by Department of Homeland Security’s (DHS’s) to reconsider its decision to grant asylum to an applicant who was subject to a reinstated removal order under section 241(a)(5) of the Immigration and Nationality Act (INA) and who had been placed in withholding of removal only proceedings. First, the Board held that the DHS has the authority to file a motion to reconsider under regulations promulgated by the Attorney General. Second, the Board held that an applicant in withholding of removal proceedings who is subject to a reinstated removal order under section 241(a)(5) of the Immigration and Nationality Act (INA) is ineligible for asylum.

Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018): AG Finds that IJs/BIA Lack General Administrative Closure Authority (Part 1)

On May 17, 2018, U.S. Attorney General Jeff Sessions issued a far-reaching immigration precedent decision in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018). In the decision, Attorney General Sessions concluded that immigration judges do not have the general authority to grant administrative closure. He overturned the Board’s precedent decisions in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), to the extent that they were inconsistent with his conclusion in Matter of Castro-Tum. In this article, we will review the first half of the Attorney General’s decision. In so doing, we will cover the factual and procedural history of the case, the questions presented, and the background and history of administrative closure in immigration proceedings. After reading, please see parts two and three to learn about the Attorney General's analysis and his decision.

Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018): AG Finds that IJs/BIA Lack General Administrative Closure Authority (Part 2)

This is the second part of our three-part series of articles on the important published Attorney General decision in the Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018). This article presupposes that you have seen our first article in the series and are familiar with the case background and issues presented. In this article, we will discuss the Attorney General’s reasoning for concluding that neither the statutes nor regulations provide for general administrative closure authority.

Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018): AG Finds that IJs/BIA Lack General Administrative Closure Authority (Part 3)

This is the third and final part of our three-part series of articles on the important published Attorney General decision in the Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018). It presupposes that you are familiar with the case background and procedural history, discussed in part one, and with the Attorney General’s conclusion that immigration judges and the Board of Immigration Appeals (BIA) lack general administrative closure authority. In this article, we will cover the Attorney General’s decision to not delegate administrative closure authority and his rules for cases that were administratively closed without authority, in addition to his decision to affirm the BIA’s decision in the instant matter.

Trump Executive Order on Family Separations Resulting from "Zero Tolerance Policy"

On June 20, 2018, President Donald Trump issued an Executive Order titled “Affording Congress an Opportunity to Address Family Separation”. President Trump issued the executive order after objections to family separations that occurred as a result of an interagency policy to refer every illegal entry and reentry case for prosecution and to prosecute such cases. President Trump’s new executive order constitutes an attempt to shift the administration’s policy toward family detention. However, as we will see, there are numerous legal questions as to whether the shift will be successful. In this article, we will examine President Trump’s Executive Order and what it may mean going forward.

Matter of Medina-Jimenez, 27 I&N Dec. 399 (BIA 2018): Determining Whether Violating a Protection Order Bars Cancellation

On August 7, 2018, the Board of Immigration Appeals (BIA) issued a published decision of Matter of Medina-Jimenez, 27 I&N Dec. 399 (BIA 2018). The Board’s task was to decide the proper approach for evaluating whether a conviction for violating an order of protection falls under the deportability provision at section 237(a)(2)(E)(ii) of the Immigration and Nationality Act (INA), which causes an alien to be ineligible for cancellation of removal under section 240A(b)(1)(C). The Board held that the categorical approach, which restricts adjudicators to assessing the language of the statute of conviction rather than the individual’s underlying criminal conduct, does not govern whether violating a protection order falls within the scope of section 237(a)(2)(E)(ii). The Board held that when considering whether a conviction for violating an order of protection renders an applicant ineligible for cancellation of removal, immigration judges must determine (1) whether the alien has been convicted within the INA’s definition of the term conviction under section 101(a)(48)(A) of the INA; and (2) whether the conviction was for violating an order of protection within the meaning of section 237(a)(2)(E)(ii). Regarding the proper approach for determining whether a conviction is within the scope of section 237(a)(2)(E)(ii), the Board followed its recent precedent decision in Matter of Obshatko, 27 I&N Dec. 173 (BIA 2017).

Unlawful Presence in the United States

Accruing “unlawful presence” in the United States may render a noncitizen inadmissible to the United States, and consequently ineligible to obtain nonimmigrant visas and adjustment of status to immigrant visas. Depending on the amount of unlawful presence accrued, a nonimmigrant may be barred from attempting to reenter the United States after departing for 3 years, 10 years, or permanently (see our article on the permanent bar for more details on that subject).

Pereira v. Sessions, 138 S.Ct. 2105 (2018): NTA Must Include Time and Date of Hearing to Trigger Stop-Time Rule

On June 21, 2018, the Supreme Court of the United States issued its decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018). In Pereira, the Court held that a putative “notice to appear” that does not designate a specific time or place of removal proceedings is not a “notice to appear” as defined in section 239(a)(1) of the Immigration and Nationality Act (INA). As a result, the court held that a putative notice to appear that does not designate a specific time or place of removal proceedings does not trigger the stop-time rule ending a noncitizen’s period of continuous physical presence in the United States, and which in turn affects eligibility for cancellation of removal under the INA. In this article, we will examine the factual and procedural history of Pereira, the Court’s analysis and conclusions, and what this important new precedent means going forward. We will also examine in brief the concurring and dissenting opinions.

Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018): When an NTA With No Time and/or Place For Hearing Vests Authority in IJ

On August 31, 2018, the Board of Immigration Appeals (BIA) issued a published decision in Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018). The decision addressed whether a notice to appear that does not specify the time and place of the alien’s initial removal proceedings vests an Immigration Judge with authority over the removal proceedings, and if so, in what circumstances. The issue is significant due to the recent decision of the Supreme Court of the United States in Pereira v. Sessions, 138 S.Ct. 2105 (2018), wherein the Court held that such a notice of appear does not trigger the stop-time rule, which halts the accrual of continuous physical presence for purposes of cancellation of removal. In this article, we will discuss the Board’s highly important decision in Matter of Bermudez-Cota and what it means going forward.

Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018): Reaffirming and Clarifying Limits on Dismissing/Terminating Proceedings

On September 18, 2018, Attorney General Jeff Sessions issued a published decision deciding two cases in Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018). The Attorney General held that, consistent with his recent published decision in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), immigration judges have no inherent authority, that is not specifically provided for in the Attorney General regulations, to terminate or dismiss removal proceedings. He also reiterated his conclusion from Matter of Castro-Tum that the regulation at 8 C.F.R. 1240.1(a)(1)(iv), which gives immigration judges general authority to “take any other action consistent with applicable law and regulations as may be appropriate,” does not give immigration judges additional authority to dismiss removal proceedings beyond what is specifically set forth in the regulations. Finally, the Attorney General instructed the Board of Immigration Appeals (BIA) to “recognize and maintain the distinction between a dismissal under [8 C.F.R. 1329.2(c)] and a termination under [8 C.F.R. 1329.2(f)]. In this article, we will examine the Attorney General’s new decision in Matter of S-O-G- & F-D-B- and how it follows from his prior decision in Matter of Castro-Tum, as well as what the decision means going forward for respondents in immigration removal proceedings.

Matter of Roussis, 18 I&N Dec. 256 (BIA 1982): IJ Cannot Cede Exclusive Jurisdiction Over AOS Application in Proceedings

On June 30, 1982, the Board of Immigration Appeals (BIA) issued a published decision in Matter of Roussis, 18 I&N Dec. 256 (BIA 1982). In the decision, the Board held that an immigration judge cannot cede his or her sole jurisdiction over adjustment of status applications in deportation proceedings. The Board reasoned that doing so contravened applicable regulations and impinged on the prosecutorial discretion of the former Immigration and Naturalization Service (INS). The decision returned to the forefront in in three precedential decisions in 2017 and 2018, being cited to once by the Board and twice by the Attorney General. The Board cited to it favorably in Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168 (BIA 2017), in support of its holding that an immigration judge may not terminate removal proceedings in order to give an alien the opportunity to apply for asylum in the first instance. Attorney General Jeff Sessions referenced the decisions in both Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), and Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018), in support of his holding that immigration judges and the BIA lack general administrative closure authority. In this article, we will begin by examining the Matter of Roussis decision and precedent in detail. Then, we will examine its continuing relevance in a brief discussion of its appearances in recent BIA and Attorney General precedent decisions.

USCIS NTA Policy Based on Trump Enforcement Priorities

On June 28, 2018, the United States Citizenship and Immigration Services (USCIS) released Policy Memorandum (PM)-602-0050.1, titled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.” The guidance establishes new NTA issuance policies for USCIS based on the immigration enforcement priorities established in President Donald Trump's Executive Order 13678 (Jan. 25, 2017), and subsequently implemented through a DHS memorandum. In this article, we will examine the new USCIS NTA and referral policies.

Matter of L-A-B-R-, et al., 27 I&N Dec. 405 (AG 2018): AG Sets Rules for Continuances to Pursue Collateral Relief

On August 16, 2018, Attorney General Jeff Sessions issued an immigration precedent decision in Matter of L-A-B-R- et al., 27 I&N Dec. 405 (A.G. 2018). In the decision, the Attorney General clarified and narrowed the circumstances in which an immigration judge may grant a motion for continuance of removal proceedings in order to allow a respondent to pursue collateral relief from a different authority. In this article, we will examine the factual and procedural history of Matter of L-A-B-R-, Attorney General Sessions’ analysis and conclusions, and the effect that this decision will have on immigration proceedings going forward.

Matter of Silva-Rodriguez, 20 I&N Dec. 448 (BIA 1992): No Continuance for Establishing Rehabilitation for Former 212(c)

On March 27, 1992, the Board of Immigration Appeals (BIA) issued a short published decision in Matter of Silva-Rodriguez, 20 I&N Dec. 448 (BIA 1992). In the decision, the Board sustained an interlocutory appeal by the then-Immigration and Naturalization Service (INS) (now the Department of Homeland Security (DHS)) from a decision by an immigration judge granting a one-year continuance of deportation proceedings in order to give the alien time to establish “genuine rehabilitation” for a waiver of deportation under the former section 212(c) of the Immigration and Nationality Act (INA). Specifically, the Board concluded that the immigration judge had acted without “good cause” in granting the one-year continuance. In 2018, Attorney General Jeff Sessions mentioned Matter of Silva-Rodriguez favorably in his comprehensive decision discussing what constitutes “good cause” for granting a motion for continuance to allow a respondent in removal proceedings to pursue collateral relief. In this article, we will discuss Matter of Silva-Rodriguez and what it means for cases today.

Chavez-Alvarez (BIA and 3d Cir): No Presumption of Sentence for Single Count in Military General Sentencing

On March 14, 2015, the Board of Immigration Appeals (BIA) published a precedent decision in Matter of Chavez-Alvarez, 26 I&N Dec. 274 (BIA 2014). The case concerned an alien service member who had been convicted of five provisions of the Uniform Code of Military Justice and sentenced to a term of confinement of 18 months. On the basis of one of these convictions – for sodomy – the Board concluded that he had been convicted of an aggravated felony crime of violence for which the term of imprisonment was one year or more. However, on April 16, 2015, the United States Court of Appeals for the Third Circuit granted the alien’s petition for review and remanded the record to the Board in Chavez-Alvarez v. Attorney General U.S., 783 F.3d 478 (3d Cir. 2015), finding that because the sentence did not individually specify the length of incarceration for each of the four counts, including the sodomy count, the alien had not been convicted of a crime of violence for which the term of imprisonment imposed was one year or more. In this article, we will discuss the dueling BIA and Third Circuit decisions on whether Chavez-Alvarez had been sentenced to a term of imprisonment of one year or more.

Matter of S-, 3 I&N Dec. 460 (BIA 1948): Presumption that General Federal Sentence Applies In Full to Each Count

On December 28, 1948, the Board of Immigration Appeals published a precedent decision in Matter of S-, 3 I&N Dec. 460 (BIA 1948). The case involved an alien who had pled guilty to three separate counts of a federal indictment and was given a general sentence of 15 months of imprisonment and a fine of $1. For immigration purposes, the question was whether he was given a sentence of one year of imprisonment or more for his conviction on one of the three counts. The Matter of S- Board concluded that the alien’s 15-month sentence was applicable to each of the three counts individually, and thus that the alien was deportable for his sentence of one year or more on the third count. The Board’s reasoning on this point drew heavily from the precedent decision of the United States Court of Appeals for the Ninth Circuit in Martinez v. Nagle, 53 F.2d 195 (9th Cir. 1931). Matter of S- was a relatively obscure decision until it was cited by the Board again in a precedent decision over 65 years later. In Matter of Chavez-Alvarez, 26 I&N Dec. 274, 282 (BIA 2014). In this article, we will examine the decisions in Matter of S- and Martinez in detail and explain how they remain relevant to Matter of Chavez-Alvarez. Furthermore, we will also discuss briefly why the Third Circuit disagreed with the Board’s conclusion in Matter of Chavez-Alvarez.

Matter of M-, 5 I&N Dec. 622 (BIA 1954): Respondent Not Entitled to Delay in Proceedings Based Solely on Pending AOS Application

On January 14, 1954, the Board of Immigration Appeals (BIA) published a precedent decision in the Matter of M-, 5 I&N Dec. 622 (BIA 1954). In Matter of M-, the Board declined to adjourn deportation proceedings for the purpose of allowing the alien to pursue an application for adjustment of status. On August 16, 2018, Attorney General Jeff Sessions cited to Matter of M- favorably in his important precedent decision on when an alien respondent may be granted a continuance to pursue collateral relief, Matter of L-A-B-R-, et al., 27 I&N Dec. 405, 414 (A.G. 2018). In this article, we will discuss the factual and procedural history of Matter of M-, the Board’s analysis and conclusions, and how the decision remains relevant today through its reference in Matter of L-A-B-R- and other important precedent decisions.

Complaints Against EOIR Adjudicators

On October 15, 2018, the Executive Office for Immigration Review (EOIR) published an updated summary of its procedures for handling complaints concerning its immigration adjudicators. In this post, we will review the revised version of the procedures.

Matter of Quintero, 18 I&N Dec. 348 (BIA 1982): Continuance Not Warranted Where Potential Relief is too Speculative

On November 16, 1982, the Board of Immigration Appeals (BIA) published a precedential decision in the Matter of Quintero, 18 I&N Dec. 348 (BIA 1982). Matter of Quintero has two main focuses. First, it makes clear that immigration judges do not have authority to grant remedies or review declinations to grant remedies which fall within the scope of prosecutorial discretion, which was then exercised by former Immigration and Naturalization Service and is now exercised by the Department of Homeland Security. By extension, it held that immigration judges are not required to adjourn – or continue – proceedings in order to allow an alien to pursue relief in the form of prosecutorial discretion. The decision garnered newfound significance when it was cited by Attorney General Jeff Sessions in his important decision on when good cause is established in support of a continuance to pursue collateral relief from removal, Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018). In this article, we will examine the Matter of Quintero decision in detail and its contemporary relevance in light of Matter of L-A-B-R-.

Two BIA Decisions on Standard for Continuance for More Time to Obtain Evidence

In Matter of L-A-B-R-, et al., 27 I&N Dec. 405 (A.G. 2018), Attorney General Jeff Sessions established rules for when a continuance of removal proceedings can be granted to allow a respondent to pursue collateral relief. In the decision, the Attorney General cited to several past decisions that he found persuasive in crafting the new rules for continuances. In this article, we will examine two of these decisions: Matter of P-, 4 I&N Dec. 684 (BIA 1952); and Matter of Sibrun, 18 I&N Dec. 354 (BIA 1983). Both decisions addressed when an alien may seek a continuance in order to gather additional evidence. In both cases, the Board explained its reasoning in finding that the respondent did not sustain his burden for being granted a continuance to procure additional evidence. After examining the decisions and their rules, we will look at how they have been relied upon in Matter of L-A-B-R- and other pertinent published decisions subsequent to their issuance.

Matter of Kotte, 16 I&N Dec. 449 (BIA 1978): IJ Not Required to Continue Proceedings For Pending IV/AOS Application

On February 10, 1978, the Board of Immigration Appeals (BIA) published a precedential decision in Matter of Kotte, 16 I&N Dec. 449 (BIA 1978). In Matter of Kotte, the Board concluded that immigration judges are not required to grant a continuance of deportation proceedings pending consideration of an immigrant visa petition filed prior to said proceedings. Matter of Kotte was cited to favorably in Attorney General Jeff Sessions’ important immigration precedent decision in Matter of L-A-B-R-, et al., 27 I&N Dec. 405 (A.G. 2018). In Matter of L-A-B-R-, the Attorney General crafted rules for what constitutes “good cause” in the context of seeking a continuance for the purpose of procuring collateral relief from removal. In this article, we will examine Matter of Kotte in detail and study citing references to the decision in both Matter of L-A-B-R- and the decision of the United States Court of Appeals for the Eleventh Circuit in Merchant v. U.S. Atty. Gen., 461 F.3d 1375 (11th Cir. 2006).

Matter of J-R-G-P-, 27 I&N Dec. 482 (BIA 2018): CAT Claims Based on Poor Prison/Mental Health Facility Conditions

On October 31, 2018, the Board of Immigration Appeals (BIA) published a precedential decision in Matter of J-R-G-P-, 27 I&N Dec. 482 (BIA 2018). The decision concerns an application for protection under the Convention Against Torture. The Board held that where an applicant “establishes that abusive or squalid conditions in pretrial detention facilities, prisons, or mental health institutions in the country of removal are the result of neglect, a lack of resources, or insufficient education,” but where the applicant does not establish that there is a specific intent to commit “torture” in said places, an immigration judge’s finding that the applicant did not establish a significant likelihood that he or she would experience “torture” if removed to the country in question does not constitute “clear error.” In this article, we will examine the factual and procedural history of Matter of J-R-G-P- along with the Board’s analysis and conclusions.