On March 19, 2012, the Board of Immigration Appeals (BIA) upheld its previous precedential decision [Matter of Lemus, 24 I. & N. Dec.373 (BIA 2007)] finding that one who is unlawfully present in the U.S. for a year or more who then departs and returns within ten years of departure is inadmissible per INA§212(a)(9)(B)(i) and, thus, ineligible to adjust status under INA§245(i) without a waiver. Matter of Lemus 24 I. & N. Dec.734 (BIA 2012).
On March 9, 2012, the Board of Immigration Appeals (BIA) found that the test for whether a criminal statute is divisible for purposes of applying the "modified categorical approach" is whether, based on the elements of the offense, some but not all violations will result in a ground or grounds of removal or ineligibility for immigration relief. Matter of Lanferman, 25 I. & N. Dec.721 (BIA 2012).
On March 8, 2012 the Board of Immigration Appeals (BIA) held that the principal beneficiary of an INA§245(i)-eligible visa petition must satisfy all grandfathering requirements, including - if necessary - physical presence on December 21, 2000, if derivative beneficiaries are to qualify for adjustment of status and be grandfathered under INA§245(i). Matter Ilic, 25 I. & N. Dec.717 (BIA 2012).
On February 17, 2012, the Board of Immigration Appeals (BIA) held that an asylum applicant who has proven past persecution but who no longer has a well-founded fear of it may still be eligible for “humanitarian asylum”, a discretionary grant of political asylum per 8CFR§1208.13(b)(1)(iii) based on 1) compelling reasons arising out of the severity of the past persecution, as well as 2) a reasonable possibility that the applicant may suffer :other serious harm” may be unrelated to the person’s past “persecution”. Matter of L-S-, 25 I. & N. Dec. 705 (BIA 2012)
On February 14, 2012, the Board of Immigration Appeals (BIA) held that one convicted of marijuana possession with intent to distribute may prove that the crime is not an aggravated assault felony because the offense only included a “small amount of marijuana for no remuneration” as set forth in 21 USCA §841(b)(4) and that this burden can be met by evidence outside the record of conviction. This clarifies the BIA’s previous decision in Matter of Aruna, 24I. & N. Dec. 452 (BIA 2008). Matter of Castro Rodriguez, 25 I. & N. Dec. 698 (BIA 2012).
On February 6, 2012, the Ninth Circuit Court of Appeals ordered the U.S. government, in five cases, to advise the Court by March 19, 2012 if it intended to exercise prosecutorial discretion in any or all of the cases. San Agustin v. Holder, 2012 WL 360761 (9th Cir. 2012); Jex v. Holder, 2012 WL 360764 (9th Cir. 2012); Pocasangre v. Holder, 2012 WL 360774 (9th Cir. 2012); Mata-Fasardo v. Holder, 2012 WL 360776 (9th Cir. 2012); and, Rodriguez v. Holder, 2012 WL 360759 Pocasangre v. Holder, 2012 WL 360774 (9th Cir. 2012).
On January 31, 2012, the Board of Immigration Appeals (BIA) held that both Immigration Judges and the BIA itself may order removal proceedings administratively closed, even where a party objects, when it is appropriate. This overrules the BIA’s prior decision in Matter of Gutierrez, 21 I. & N. Dec. 479 (BIA 1996). Matter of Avetisyan, 25 I. & N. Dec. 688 (BIA 2012).
On January 19, 2012, the Board of Immigration Appeals (BIA) reiterated its previous holding that a conviction for stalking (harassing conduct) under California Penal Code §646.9 (b) qualifies as a crime of violence for 18 USCA §16(b) and is thus an aggravated felony pursuant to INA §101(a)(43)(F). In so finding, the BIA reaffirmed Matter of Malta-Espinoza, 23 I. & N. Dec. 656 (BIA 2004) and held that it would only follow Malta-Espinoza V. Gonzales, 478 F.3d 1080 (9th Cir. 2007), which reversed Matters of Malta-Espinoza, in the Ninth Circuit.
On January 6, 2012, the Board of Immigration Appeals (BIA) held that a valid residence permit from a third country is prima facie evidence of an offer of firm resettlement under INA §208(b)(2)(A)(vi), even if the document is fraudulently obtained. The BIA also found that when an asylum applicant resettles in a third country then travels to the country of claimed persecution or to the U.S., then returns to the country of resettlement, the applicant has not stayed there “as long as was necessary to arrange onward travel” and is thus unable to establish an exception to firm resettlement per 8 CFR §1208.15(a). Matter of D-X- & Y-Z- 25 I. & N. Dec. 664(BIA 2012)
On January 3, 2012, the Board of Immigration Appeals (BIA) found that a conviction under California Penal Code §311.11(a) for possession of child pornography is a “particularly serious crime” as that term is defined by INA §241(b)(3)(B)(iii). Matter of R-A-M-, 25 I. & N. Dec. 657 (BIA 2012).
On December 6, 2011, the Board of Immigration Appeals (BIA) found that a lawful permanent resident who adjusted status under the Cuban Refugee Adjustment Act of November 2, 1996 has been "admitted" to the United States and is thus subject to the grounds of removal, not inadmissibility. Matter of Espinosa Guillot, 25 I. & N. Dec. 653 (BIA 2011).
On December 2, 2011, the Board of Immigration Appeals (BIA) found that service of a Notice To Appear (NTA) on a respondent triggers the "stop-time rule", thus halting the accrual of continuous residence or continuous physical presence for an alien applying for cancellation of removal under INA§240A. The BIA also held that to "stop-time", the NTA need not list the date and time of the first hearing or be accompanied by a separate notice of hearing. Matter of Camarillo, 25 I. & N. Dec. 644 (BIA 2011).
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