BIA PRECEDENT TABLE 1995-2010 (Revised 06-18-2010)

This document compiles headnotes from BIA precedent cases published in volumes 21, 22, 23, 24 and 25 of the Administrative Decisions under the Immigration and Nationality Laws of the United States, organized by topic. As such, it includes all BIA cases published from Matter of Esposito (March 30, 1995) to the present.
 http://www.justice.gov/eoir/vll/intdec/precedent_chart/precedent_chart_TOC.html

ADJUSTMENT OF STATUS Arriving Aliens Child Status Protection Act Chinese Student Protection Act Cuban Refugee Adjustment Act Eligibility Rescission of Adjustment of Status Section 245(i) Adjustment ADMINISTRATIVE CLOSURE OF CASES ADMISSION / ENTRY Adjustment of Status Arriving Alien Claimed Status Review Nunc Pro Tunc Permission to Reapply Returning Lawful Permanent Resident Unlawful Reentry Withdrawal of Application for Admission AGGRAVATED FELONIES Accessory After the Fact Adjustment of Status Alien Smuggling Arson Burglary Conspiracy Controlled Substances Crimes of Violence Date of Conviction Divisible Statutes Firearms Fraud and Deceit Misprision of a Felony Obstruction of Justice Perjury Prostitution for Commercial Advantage Rape Robbery Section 212(h) Waivers Sentence Enhancement Sexual Abuse of a Minor Theft Offenses Transportation of Undocumented Aliens AIRLINE FINES AMERICAN BAPTIST CHURCHES (ABC) SETTLEMENT APPEALS Factfinding on Appeal Timeliness Waiver of Right to Appeal ASYLUM Adjustment of Status Country Conditions Countrywide Persecution Credibility and Corroboration Criminal Activity Exclusion Proceedings Firm Resettlement Frivolous Applications Jurisdiction of Immigration Judges North Korean Human Rights Act One-Year Application Deadline Particular Social Group Past Persecution Persecution - Antisemitism Persecution - Clan Membership Persecution - Coercive Population Control Persecution - Cumulative Discrimination Persecution - Domestic Violence Persecution - Drug Informants Persecution - Extortion Persecution - Female Genital Mutilation Persecution - Guerrilla Recruitment Persecution - Kidnapping Persecution - Mixed Motives Persecution - Nonphysical Harm Persecution - Rape Persecution - Reasons for Persecution Persecution - Religion Persecution - Wealth Stowaways Terrorists Visa Waiver Program Well-founded fear ATTORNEY DISCIPLINE ATTORNEY GENERAL CERTIFICATION BACKGROUND AND SECURITY CHECKS CANCELLATION OF REMOVAL (LAWFUL PERMANENT RESIDENTS) Continuous Residence Criminal Convictions Standards CANCELLATION OF REMOVAL (NON-LAWFUL PERMANENT RESIDENTS) Continuous Residence Criminal Convictions Exceptional and Extremely Unusual Hardship Good Moral Character Ineligible Aliens Qualifying Relatives

CANCELLATION OF REMOVAL (SPECIAL RULE) Continuous Physical Presence Battered Spouse CHILD PROTECTION ACT CITIZENSHIP Acquisition of Citizenship by a Child Ineligible to Citizenship CONTINUANCES CONTROLLED SUBSTANCE DEPORTABILITY CONVENTION AGAINST TORTURE Acquiesence of Public Official Burden of Proof Definition of Torture Jurisdiction CRIMES INVOLVING MORAL TURPITUDE Assault Cancellation of Removal Eligibility Child Pornography Controlled Substances Corporal Injury on a Spouse Date of Admission Defined Domestic Battery Driving Under the Influence Failure to Register as Sex Offender Financial Violations Misprision of a Felony Money Laundering Purely Political Offense Section 212(c) Eligibility Stalking Theft Trafficking in Counterfeit Goods CRIMINAL CONVICTIONS             Court Martial Finality Foreign Convictions Deferred Adjudication Naturalization Pardons Penalty or Punishment Records of Conviction Rehabilitative Statutes Sentence Vacated Convictions Violations Youthful Offenders DETENTION AND BOND Jurisdiction Mandatory Detention National Security Considerations Pending Appeals Standards Terrorists Transition Period Custody Rules (TPCR) EXCLUSION PROCEEDINGS Adjustment of Status Asylum In Absentia Proceedings Motion to Terminate Proceedings Parole EXPEDITED REMOVAL Claimed Status Review FIREARMS OFFENSES FOREIGN POLICY GROUNDS DEPORTABILITY Adverse Foreign Policy Consequences Espionage GOOD MORAL CHARACTER IN ABSENTIA PROCEEDINGS Custody Exceptional Circumstances Exclusion Proceedings Immigration Judges Ineffective Assistance of Counsel Jurisdiction Notice to Alien Section 242(b) Proceedings Stays Voluntary Departure Warnings for Failure to Appear INADMISSIBILITY Controlled Substance Violation Falsely Claiming Citizenship (Section 212(a)(6)(C)(ii)) Prostitution (Section 212(a)(2)(D) INEFFECTIVE ASSISTANCE OF COUNSEL Advice to Client In Absentia Proceedings Standards MARRIAGE FRAUD Marriage During Proceedings Section 216(c)(4) Hardship Waivers

MINORS MOTIONS TO RECONSIDER Affirmances Without Opinion Deadlines Sua Sponte Authority Untimely Appeals MOTIONS TO REMAND Joint Motions Time and Number Limits MOTIONS TO REOPEN Burden of Proof Coercive Family Planning Claims Deadlines Joint Motions Jurisdiction Sua Sponte Authority Time and Number Limits Voluntary Departure NATURALIZATION ORDERS TO SHOW CAUSE PAROLE PROTECTIVE ORDERS REAL ID ACT RECOGNITION AND ACCREDITATION REFUGEES Date of Admission Jurisdiction REINSTATEMENT OF REMOVAL REMOVAL GROUNDS Crime of Child Abuse Smuggling REMOVAL PROCEEDINGS Alienage and Identity Burden of Proof Immigration Judges Minors Naturalization Prosecutorial Discretion Refugees SECTION 209(C) WAIVERS SECTION 212(C) WAIVERS Adjustment of Status Aggravated Felonies Comparable Grounds of Inadmissibility Drug Offenses Factors Falsification of Documents Residence and Domicile Retroactivity SECTION 212(H) WAIVERS SECTION 212(I) WAIVERS SECTION 213 WAIVERS  SECTION 237(A)(1)(H) WAIVERS SECTION 241(A)(1)(H) WAIVERS SMUGGLING OF ALIENS SUSPENSION OF DEPORTATION Extreme Hardship Physical Presence Stop-Time Rule TEMPORARY PROTECTED STATUS VISA PETITIONS Adoption Legitimated Children Employment-Based Marriage Pending, Continuance for Pending, Reopening for Widows VOLUNTARY DEPARTURE Appeal Waiver Bond Conditions Duty to Inform Failure to Depart In Absentia Proceedings Motions to Reopen Standards WITHHOLDING OF REMOVAL Convention Against Torture (CAT) Claims Particularly Serious Crime             Removal Order Requirement

BIA Finds California Assault with Intent to Commit a Felony Is a Crime of Violence

The Board of Immigration Appeals (BIA or Board) held in Matter of Ramon Martinez, 25 I. & N. Dec. 571 (B.I.A. July 15, 2011), that a violation of § 220 of the California Penal Code (assault with intent to commit a felony) is categorically a crime of violence under 18 USCA § 16(a) and (b) (2006). Cite as 25 I&N Dec. 571 (BIA 2011)

The respondent, a native and citizen of Honduras, was admitted to the U.S. on April 26, 1991, as an immigrant. On March 7, 1994, he was convicted of assault with intent to commit a felony in violation of Cal. Penal Code § 220. Based on this conviction, removal proceedings against the respondent were initiated, charging that he is removable under INA § 237(a)(2)(A)(iii) [8 USCA § 1227(a)(2)(A)(iii)] (2006) as an alien convicted of an aggravated felony.

In 1994, when the respondent committed his offense, Cal. Penal Code § 220 provided that:

Every person who assaults another with intent to commit mayhem, rape, sodomy, oral copulation, or any violation of Section 264.1 [acting in concert with another person to commit, by force or violence, rape or penetration of genital or anal openings by foreign object, etc.], 288 [lewd or lascivious acts with a child under age 14] or 289 [penetration of genital or anal openings by foreign object, etc.] is punishable by imprisonment in the state prison for two, four, or six years.

The immigration judge (IJ) found that the respondent was convicted of assault with intent to commit rape, a *1757 crime of violence under 18 USCA § 16 for which the term of imprisonment was at least one year and hence an aggravated felony under INA § 101(a)(43)(F) [8 USCA § 1101(a)(43)(F)]. Consequently, the IJ ordered the respondent removed to Honduras. The respondent appealed to the Board, contending that his conviction was not for a crime of violence.

In an opinion delivered by Board Member Edward Grant for the panel, which included Board Members Neil P. Miller and Garry D. Malphrus, the Board found that it was unclear from the conviction records whether the respondent was, in fact, convicted of assault with intent to commit rape as opposed to one of the other offenses enumerated in § 220 and that the respondent's plea was obtained pursuant to People v. West, 477 P.2d 409 (Cal. 1970), which meant that he admitted a violation of § 220 but did not specify which predicate offense he intended to commit. However, the Board concluded that, even if the record did not establish that the respondent was convicted of assault with intent to commit rape, his conviction under § 220 was nevertheless for a categorical “crime of violence” in its own right under both 18 USCA § 16(a) and 18 USCA § 16(b).

The Board explained that, under 18 USCA § 16(a), an offense is deemed to be a “crime of violence” if it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another,” that the phrase “use of physical force” means the use of violent force, and that Cal. Penal Code § 220 requires that an assault be committed with a specific intent to use whatever force is necessary to complete the object offense against the will of the victim. [FN80] The Board also pointed out that, because the accused must intend to accomplish the object offense against the will of the victim, § 220 does not cover instances in which the victim “consents” in some sense to physical contact; rather, the statute encompasses only those offenses in which the victim's will is overcome. Moreover, the Board stressed, the statute punishes “assault with intent to commit” one of the listed offenses, which “clearly does not describe a consensual act.” The Board conceded that, because some victims may prove unable to effectively resist the offender, § 220 could be violated without actual violent force being used, but declared that every violation of § 220 has as an element at least the “attempted” or “threatened” use of such force against the victim, which are alternative elements to the actual use of force under 18 USCA § 16(a). Thus, the Board concluded, a violation of § 220 is categorically a crime of violence under 18 USCA § 16(a).

For similar reasons, the Board found that a violation of Cal. Penal Code § 220 is also a crime of violence under 18 USCA § 16(b), which encompasses “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense,” that is, “that the use of physical force against another might be required in committing the crime.” Since the offense under § 220 (a felony under both California and federal law) requires an assault coupled with the specific intent to use whatever force is necessary to complete the object offense against the will of the victim, it always entails a “substantial risk” that its consummation may involve the intentional use of violent physical force against the victim, either to accomplish the initial assault or to overcome the victim's will or both. Therefore, the Board held, a violation of § 220 is a categorical crime of violence under 18 USCA § 16(b).

Having concluded that the respondent's conviction was for an aggravated felony under INA § 101(a)(43)(F), the Board found him removable as charged and ineligible for a waiver under INA § 212(c) [8 USCA § 1182(c)] because the crime of violence aggravated felony category has no statutory counterpart in the grounds of inadmissibility under INA § 212(a) [8 USCA § 1182(a)]. Further, the Board found the respondent ineligible for voluntary departure because he is deportable under INA § 237(a)(2)(A)(iii) [8 USCA § 1227(a)(2)(A)(iii)] as an alien convicted of an aggravated felony, INA § 240B(b)(1)(C) [8 USCA § 1229c(b)(1)(C)]. Consequently, the respondent's appeal was dismissed.

See Matter of Velasquez, 25 I. & N. Dec. 278, 282 (B.I.A. 2010) (following Johnson v. U.S., 130 S. Ct. 1265, 1271 (2010)). Matter of Velasquez is examined in 87 Interpreter Releases 1474 (July 26, 2010). Johnson v. U.S. is examined in 87 Interpreter Releases 643 (Mar. 22, 2010).

See People v. Maury, 68 P.3d 1, 44 (Cal. 2003); People v. Davis, 896 P.2d 119, 143 (Cal. 1995); People v. Dillon, 95 Cal. Rptr. 3d 449, 459 (1st Dist. 2009) (stating that § 220 requires “not only the specific intent to commit the underlying sexual act, but a specific intent to commit that act without the consent of the victim”); People v. Soto, 141 Cal. Rptr. 343, 349 (1st Dist. 1977) (noting that a conviction requires proof of “the assault and an intent on the part of defendant to use whatever force is required to complete the sexual act against the will of the victim”).

See People v. Dillon, 95 Cal. Rptr. 3d at 459.

Leocal v. Ashcroft, 543 U.S. 1, 10 (2004).

BIA Finds § 212(h) Waiver Not Available to Overcome Bar to Cancellation of Removal

Matter of BUSTAMANTE, 25 I&N Dec. 564 (BIA 2011)

The bar to cancellation of removal in section 240A(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(C) (2006), which precludes an alien who has been convicted of an offense under section 212(a)(2) of the Act, 8 U.S.C. § 1182(a)(2) (2006), from establishing eligibility for relief, may not be overcome by a waiver under section 212(h) of the Act.

The BIA concluded that INA §212(h) cannot waive the effect of a conviction for a controlled substance violation to overcome the bar to cancellation of removal under §240A(b)(1)(C), and dismissed the appeal.
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The Board of Immigration Appeals (BIA or Board) has held, in Matter of Bustamante, 25 I. & N. Dec. 564 (B.I.A. July 13, 2011), that the bar to cancellation of removal in INA § 240A(b)(1)(C) [8 USCA § 1229b(b)(1)(C)] (2006), which precludes an alien who has been convicted of an offense under INA § 212(a)(2) [8 USCA § 1182(a)(2)] (2006) from establishing eligibility for relief, may not be overcome by a waiver under INA § 212(h) [8 USCA § 1182(h)]. The respondent is a native and citizen of Mexico who entered the U.S. without having been admitted or paroled. In April 2008, he was convicted of possession of not more than 20 grams of marijuana in violation of Fla. Stat. § 893.13(6)(b). Removal proceedings were initiated against the respondent, charging him under INA § 212(a)(6)(A)(i) as an alien who is present in the U.S. without having been admitted or paroled. At a hearing before an immigration judge (IJ), the respondent conceded that he is removable and sought to apply for cancellation of removal under INA § 240A(b). The Department of Homeland Security (DHS) argued that the respondent was ineligible for that relief because he was barred under INA § 240A(b)(1)(C) as a result of his conviction for a controlled substance violation, which was an offense under INA § 212(a)(2)(A)(i)(II). The respondent requested a waiver under INA § 212(h) to overcome the statutory bar. The IJ determined that a waiver under INA § 212(h) would not eliminate the legal effect of the conviction for purposes of INA § 240A(b)(1)(C). The IJ found the respondent ineligible for cancellation of removal and ordered him removed from the U.S. The respondent has appealed, arguing that the IJ erred in denying the application for cancellation of removal. The respondent asserted that because cancellation of removal is a form of adjustment of status, an INA § 212(h) waiver should remove the legal effect of his conviction in the same manner that it waives a ground of inadmissibility that would otherwise render an alien ineligible for adjustment of status under INA § 245 [8 USCA § 1255] (2006).

In an opinion written by Board Member Linda S. Wendtland, in which Board Members Roger Pauley and Anne J. Greer joined, the Board began its analysis by setting out the relevant statutory provisions. It noted that INA § 240A(b)(1) states: The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien-- (C) has not been convicted of an offense under section 212(a)(2), 237(a)(2), or 237(a)(3) of the Act Additionally, the Board set out the relevant language for INA § 212(a)(2)(A)(i): [A]ny alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-- (II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. [§ ] 802)), is inadmissible.

The Board also made note of INA § 212(h), in relevant part: The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana... (Emphasis added by the Board.)

The Board found that while INA § 212(h) is ambiguous with regard to its inadmissibility waiver provision, INA § 240A(b)(1)(C) was quite clear, requiring that an applicant demonstrate he was not convicted of an offense under INA § 212(a)(2). The Board opined that “while section 240A(b)(1)(C) clearly references the fact of a conviction, we conclude that section 212(h) is properly interpreted as not waiving the fact of a conviction, but instead as waiving only grounds of inadmissibility arising from a conviction, as well as from other actions involving criminal conduct.” The Board reasoned that it has historically held that INA § 212(h) has applied to overcoming grounds of inadmissibility that would otherwise preclude an alien from obtaining admission or adjustment of status under INA § 245. The Board also observed that, in contrast to this language, Congress has specifically exempted persons with convictions under INA § 212(a)(2) from being eligible for cancellation of removal by the language it used in crafting INA § 240A(b)(1)(C). The Board opined that the language “indicates that the bar does not depend in any way on a determination of inadmissibility or removability or ‘the application of’ a ground of inadmissibility. Instead, it directly references only convictions that are covered within the cross-referenced provisions.”

The Board also found support for its position in the fact that Congress used different language in another cancellation of removal provision, that found in INA § 240A(b)(2)(A)(iv), relating to the eligibility requirements for cancellation of removal for a battered spouse or child. There, Congress included language that related to inadmissibility and deportability, unlike in the provision at issue in this case.

Additional support for its position was found in a recent decision by the U.S. Court of Appeals for the Seventh Circuit, Barma v. Holder, 640 F.3d 749 (7th Cir. 2011). In Barma, the Seventh Circuit found that, based on language in INA § 240A(b)(1)(C), “the alien, who was convicted of possession of drug paraphernalia, was convicted of an offense under section 212(a)(2) and was therefore ineligible for cancellation of removal based on his conviction.” That court concluded that the waiver in § 212(h) was applicable to grounds of inadmissibility but not to cancellation of removal. The Seventh Circuit relied in part on a decision by the U.S. Court of Appeals for the Ninth Circuit, Sanchez v. Holder, 560 F.3d 1028, 1032 (9th Cir. 2009), which concluded that “[a] statute giving the Attorney General discretion to grant relief from inadmissibility does not give the Attorney General discretion to grant relief from removal.”

The Board concluded that the provisions for cancellation of removal require that the seeker be free from one of the enumerated convictions and that the convictions are not waivable. Further, it found that § 212(h)'s waiver applies only to waive the inadmissibility, not the actual conviction. The Board concluded:

"As an alien who was convicted of a controlled substance violation, the respondent has been “convicted of an offense under” section 212(a)(2)(A)(i)(II) of the Act. He is therefore barred from establishing eligibility for cancellation of removal under section 240A(b)(1)(C) of the Act. We agree with the Immigration Judge that a section 212(h) waiver is not available to overcome that bar. Accordingly, the respondent's appeal will be dismissed. Given our disposition, we need not address the remaining arguments presented on appeal."

BIA Addresses K-2 Age Out Eligibility for Adjustment of Status: K-2s Don't Age Out

A derivative child of a nonimmigrant fiancé(e) visa holder under section 101(a)(15)(K)(iii) of the INA is not ineligible for adjustment of status simply by virtue of having turned 21 after admission to the United States on a K-2 nonimmigrant visa. Matter of Le, 25 I&N Dec. 541 (BIA 2011)

The Board’s long-awaited ruling favorably resolves the issue of whether  the child of a fiancée of a U.S. citizen (a K-2 visa holder), who  legally entered the U.S. when under age 21, is eligible for adjustment  of status even after turning age 21. The Board concluded that the age of  the child is “fixed” at the time the child is admitted to the United  States. In doing so, it rejected the Department of Homeland Security’s  position that a K-2 visa holder is eligible only if he or she is under  21 at the time the adjustment of status application is adjudicated. The Board’s decision is consistent with the position that the American  Immigration Council and the American Immigration Lawyers Association  advocated in amicus briefs submitted to the Board in approximately a  half dozen other cases where the child turned 21 after being admitted to  the United States. The noncitizens in these and the many other cases  before both Immigration Judges and U.S. Citizenship and Immigration  Services offices throughout the country now will be able to become  lawful permanent residents as Congress intended.              

USCIS’s approach  was  fundamentally unfair.  For example, under the  USCIS approach, even an individual who obtained a K-2 visa and applied  for adjustment of status several years before his or her twenty-first  birthday would have no way of knowing whether the entire lengthy process  might be wasted because of the time that the application “languished in  the agency’s filing cabinet.”  Congress could not and did not intend  for such an unfair practice. It denied K2 adjustments because alien was was deemed to  have "aged out", meaning he had already reached the age of 21 before the  adjudication of his AOS application was accomplished.

Under Matter of Le,  an applicant, who entered the U.S. on a K-2 visa and  turned 21 before filing for adjustment of status based on her mother’s  marriage to the petitioning U.S. citizen, is nonetheless eligible for  adjustment.

The BIA held that an alien who enters on a K-1 visa and timely enters  into a bona fide marriage with the petitioning spouse, remains eligible  to adjust status under INA §245(a) despite termination of the marriage. Matter of Sesay, 25 I&N Dec. 431 (BIA 2011)

BIA Finds Conviction for Violating Kansas No-Contact Provision Is a Removable Offense

A conviction for violation of the no-contact provision of a protection order issued under the Kansas Protection from Abuse Act constitutes a removable offense under INA §237(a)(2)(E)(ii). Matter of Strydom, 25 I&N Dec. 507 (BIA 2011).

The Board held that a conviction under section 21-3843(a)(1) of the Kansas Statutes Annotated for telephoning a person protected by the order constitutes a deportable offense under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act.  Section 237(a)(2)(E)(ii) provides that an alien admitted to the U.S. who violates “the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable.”

Contacting the subject of a protection order by telephone made the respondent deportable even if the call did not involve threats or repeated harassment. It reasoned that the no-contact portion of a protection order (as opposed to portions concerning attending counseling or paying costs) involved protection from credible threats, repeated harassment, or bodily injury because a court would only issue it if there had been past abuse or threats and the no-contact order protects the victim from being victimized again.

The Board did not discuss the potential significance of the fact that the case involved a temporary protection order, which typically is issued before the court determines if credible threats of violence, repeated harassment, or bodily injury actually had occurred.  Indeed, the telephone call in this case occurred twenty days before the hearing on the restraining order.  The temporary restraining order thus apparently was based only on the woman’s unproven allegations.

The Board’s construction gives no effect to the statutory language that seems to require a determination that the threats, repeated harassment, or bodily injury had occurred and that any threats were credible.  A better construction would require, at least in the case of unproven ex parte temporary restraining orders, that the immigration judge actually find that the violation did involve such conduct.

BIA Says Arriving Aliens Subject to Expedited Removal May Be Placed in §240 Proceedings

DHS has the discretion to place arriving aliens in removal proceedings under INA §240, even if they may also be subject to expedited removal under INA §235(b)(1)(A)(i). Matter of E-R-M- & L-R-M, 25 I&N Dec. 520 (BIA 2011)

Cancellation of Removal/Break in Continuous Physical Presence Based on Execution of Form I-826 and Voluntary Return

In Reyes-Sanchez v. Holder, 2011 WL 2725813 (7th Cir. 2011), the U.S. Court of Appeals for the Seventh Circuit denied a petition for review filed by a citizen of Mexico whose application for cancellation of removal under INA § 240A(b) [8 USCA § 1229b(b)], applicable to nonlawful permanent resident aliens, was denied by the IJ and the BIA. The circuit court agreed with the government that the petitioner's apprehension by the U.S. Border Patrol and her formalized agreement to return to her native Mexico rather than to opt for an immigration court hearing interrupted her statutorily required 10-year period of continuous physical presence, thus rendering her ineligible to qualify for cancellation relief. The Seventh Circuit affirmed the agency’s determination that petitioner was ineligible for Cancellation of Removal because her voluntary return (Form I-826) after a brief visit to Mexico was under threat of prosecution and thus was sufficient to break her continuous presence in the United States.

The petitioner entered the U.S. without inspection in 1987. She subsequently married and raised three children in the U.S. She returned briefly to Mexico in 2001 and reentered the U.S. in August 2001 without being admitted or paroled. Upon her apprehension by the Border Patrol and placement into custody, she executed the Spanish version of Form I-826, Notice of Rights and Request for Disposition. It offered her three options: (1) hearing before IJ, (2) asylum hearing, or (3) acknowledgement of unlawful presence and agreement to return to native country as soon as arrangements can be made for departure. The petitioner chose the third option and was immediately returned to Mexico. In May 2003, she was apprehended in the U.S. by Immigration and Customs Enforcement (ICE) agents who were looking for her nephew, and she was placed into removal proceedings, charged under INA § 212(a)(6)(A)(i) [8 USCA § 1182(a)(6)(A)(i)] with being present in the U.S. without having been admitted or paroled.

Before the IJ, her counsel conceded the petitioner's removability and opted not to ask for cancellation due to the break in residence. The IJ refused to grant a continuance pending the results of the petitioner's legalization application but granted voluntary departure (VD) relief. While her case was pending before the BIA, the Eighth Circuit issued a decision, Ortiz-Cornejo v. Gonzales, 400 F.3d 610 (8th Cir. 2005), which held that merely being turned back at the border without any threat of deportation does not constitute a break in continuous physical presence for purposes of cancellation relief. Consequently, the Board returned Reyes-Sanchez's case to the IJ for fact finding on the “break” issue. The IJ then proceeded to hold that the petitioner's return to Mexico pursuant to the I-826 process was a response to a threat of removal and therefore broke her continuous U.S. presence. The BIA affirmed this result and did not extend her VD as she failed to post the required bond. In upholding the Board's decision, it deferred to its precedent decision in Matter of Romalez-Alcaide, 23 I. & N. Dec. 423 (B.I.A. 2002) (en banc), which held that, in addition to the departures exceeding the specified durations under the statute, a departure under a threat of deportation also constitutes a break in the accrual of continuous physical presence for cancellation purposes. The Board characterized acceptance of voluntary departure under the prior regime as a “plea bargain” and remarked that this type of enforced departure should create no legitimate expectation by either of the parties that an alien could illegally reenter the U.S. and resume a period of continuous physical presence.

The court contrasted the situation where an alien is merely just turned around at the border without any particular process, noting that in its prior decision, Morales-Morales v. Ashcroft, 384 F.3d 418 (7th Cir. 2004), it deemed this type of return not to break the continuous presence as it could not be equated with a formal voluntary departure or departure under an order of removal or deportation. The court also cited to Matter of Avilez-Nava, 23 I. & N. Dec. 799 (B.I.A. 2005) (en banc), which recognized that a mere refusal to admit an alien at the border does not constitute a break in continuous physical presence as this does not involve a formal documented process pursuant to which the alien was determined to be inadmissible to the U.S. In that case, the Board outlined what might constitute a formal process, keying in on production of official forms and processes accompanying return of the alien to his or her native country.

The court outlined the process involved in Reyes's case and deemed it to be sufficiently formalized. It considered that Reyes's use of a fictitious name to sign the Form I-826 suggested that she understood the form did indeed carry legal consequences. The court rejected the counterarguments advanced by the petitioner, including that the use of the phrase “voluntary return” on the form was not the equivalent of “voluntary departure.” It pointed out that the use of different words in this context is not central to the law as interpreted by the Board in Romalez, supra, and that this understanding has been endorsed by every circuit court to consider this issue. The court noted that, at oral argument, petitioner's counsel argued that the form was insufficient because it did not go the extra step of informing Ms. Reyes that she might have been eligible for cancellation of removal based on her 10 years of continuous residence from 1987 to 2001 but would have to request a hearing. In rejecting this argument, the court remarked that, given the myriad of circumstances that those apprehended at the border face, the brevity of Form I-826 may well have been preferable to providing each detainee a denser explanation of the relevant law. The court was satisfied that the BIA and IJ correctly determined that the petitioner's continuous physical presence in the U.S. was interrupted when she chose to return to Mexico in a formal documented process while facing the threat of removal.

BIA Addresses Whistleblowing as a Basis for Asylum: Matter of N-M-, 25 I&N Dec. 526 (BIA 2011)

The BIA found that retaliation for opposition to state corruption may form the basis for a claim based on political opinion if, post-REAL ID, the actual or imputed anti-corruption belief was one central reason for the harm. Matter of N-M-, 25 I&N Dec. 526 (BIA 2011)

Matter of N-M-, which arose within the jurisdiction of the U.S. Court of Appeals for the Ninth Circuit, involved a Colombian woman who had worked in a state-run agency where she was pressured to falsify information and hire contractors outside of the official hiring process.  When she refused to do so and voiced concerns about the corruption, she was transferred to a different position and threatened.  The immigration judge granted the woman asylum, the Department of Homeland Security appealed, and the BIA sustained the appeal and remanded the case for further fact finding.

In its decision, the BIA noted that in some circumstances, opposition to state corruption may demonstrate the respondent's political opinion or give a persecutor reason to impute such political opinion" to the respondent, particularly where the opposition involved participating in "classic political activities" or exposing the corruption to other authorities.  Id. at 528.  However, when determining whether the respondent was persecuted on account of that actual or imputed political opinion, the BIA held that the respondent must provide some direct or circumstantial evidence that the persecutor targeted the respondent because of her political beliefs. Id.  Moreover, for cases arising under the REAL ID Act of 2005, the respondent must demonstrate that her actual or imputed political opinion was 'one central reason' for the persecution.  Id. at 532.  As a result, evidence simply showing the respondent was harmed in retaliation for exposing corruption linked to a political system is insufficient to prove that the respondent's anti-corruption beliefs were 'one central reason' for her persecution. Id.

Finally, the BIA provided three factors that an adjudication "may find useful" when examining an asylum claim based on opposition to state corruption.  First, the adjudicator 'may consider whether and to what extent the alien engaged in activities that could be perceived as expressions of anti-corruption beliefs.  Id. Second, the adjudicator should consider any direct or circumstantial evidence that the alleged persecutor was motivated by the alien's perceived or actual anti-corruption beliefs.  Id.  Finally, the adjudicator should consider 'evidence regarding the pervasiveness of governmental corruption's and 'whether there are direct ties between the corrupt elements and higher level officials.  Id. at 533.  On the third point, the BIA noted that where a respondent threatens to expose corruption by rogue officials acting without the support of the government, "it seems less likely that the act would be perceived as politically motivated or threatening."  Id.  Similarly, whether the government itself, and not just the corrupt individuals, retaliates against the respondent is relevant to this issue.  Id.

The U.S. Court of Appeals for the Seventh Circuit has issued several decisions regarding corruption or whistle-blower's-based asylum claims. See e.g., Musabelliu v. Gonzalez, 442 F.3d 991 (7th Cir. 2006). The BIA's discussion of Elias-Zacarias, 502 U.S. 478 (1992), in N-M- seems inconsistent with recent Seventh Circuit's decisions regarding political opinion-based asylum claims.  Compare N-M- at 529 (asserting that the majority [in Elias-Zacarias] did not adopt the dissent's argument that an inquiry into the individual persecutor's motivation is unnecessary so long as an alien demonstrates that the persecution occurred in response to an act manifesting a political opinion) (internal citations omitted) with Martinez-Buendia v. Holder, 616 F.3d 711, 718 (7th Cir. 2010) (stating, "if political opposition is the reason an individual refuses to cooperate with a guerrilla group, and that individual is persecuted for his refusal to cooperate, logic dictates that the persecution is on account of the individual's political opinion.").