Our Articles on Recent BIA Precedent Decisions

The Board of Immigration Appeals (BIA) is the highest administrative body for interpreting immigration laws.  Although most of the Board’s decisions are not for precedent, the Board periodically releases what are called precedent decisions.  A precedent decision is binding on the Department of Homeland Security (DHS) and Immigration Judges, unless overturned by the Attorney General or federal court. In most of our articles, you will find many references to BIA precedent decisions.

Because of the importance of BIA precedent decisions, we are committed to writing about them regularly.  In fact, we now have articles discussing every BIA precedent decision issued in 2016 (through June 2, 2016).  In this post, I will provide a list of recent BIA precedent decisions that we have covered here at myattorneyusa.com with a brief description of the BIA’s holding and a link to our article for each case.  If you are interested in a specific BIA decision, please use our website’s search feature to see if we have discussed it in our growing collection of articles and blog posts about immigration law.

• The Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015) [see article]

Decided:  November 23, 2015  

The Board held that it is inappropriate to apply the requirements in the Federal Rules of Evidence with respect to the admission of expert testimony to a respondent’s testimony regarding events of which he or she has personal knowledge.  Furthermore, the Board held that it may remand to a different Immigration Judge if the conduct of an Immigration Judge can be perceived as bullying or hostile.

• The Matter of Castro-Lopez, 26 I&N Dec. 693 (BIA 2015) [see article]

Decided:  December 2, 2015

The Board held that 10 years of continuous physical presence required for special rule cancellation removal under NACARA [see article] should be measured from the alien’s most recently incurred ground of removal (at least where the ground is listed in 8 C.F.R. 1240.66(c)(1), which references INA 212(a)(2)).

• The Matter of Cavillo-Garcia, 26 I&N Dec. 697 (BIA 2015) [see article]

Decided:  December 9, 2015

The Board held that a term of confinement in a substance abuse treatment facility imposed as a condition of probation (under a Texas state statute) constitutes a “term of confinement” under INA 101(a)(48)(B) for purpose of determining if an offense is an immigration aggravated felony [see article] for a crime of violence under INA 101(a)(43)(F) [see section].

• The Matter of Mendoza-Osorio, 26 I&N Dec. 703 (BIA 2016) [see article]

Decided:  February 9, 2016

The offense of endangering the welfare of a child under a New York state statute, which requires knowingly acting in a matter likely to be injurious to the physical, mental, or moral welfare of a child, is categorically [see article] an offense covered by INA 237(a)(2)(E)(i) for a “crime of child abuse, child neglect, or child abandonment.”

• The Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016) [see article]

Decided:  February 24, 2016

The Board held that for a state offense to qualify as a crime of violence under 18 U.S.C. 16, the state statute must require as an element the use, attempted use, or threatened use of physical force.  The Board then held that a Puerto Rico statute for aggravated battery was not categorically a crime of violence under 18 U.S.C. 16 because it could be committed by means that do not involve the use of violent physical force.

• The Matter of Villalobos, 26 I&N Dec. 719 (BIA 2016)

Decided:  March 10, 2016

The Board held that Immigration Judges and the BIA have jurisdiction to determine whether an alien was eligible for a previous adjustment of status under INA 245A(b) for purposes of assessing an alien’s removability and eligibility for relief from removal.  It also held that an alien seeking to apply permanent residence through the legalization provisions of section INA 245A must establish admissibility at the time of the initial application for temporary residency and again when applying for adjustment of status to permanent resident status under INA 245A(b)(1).  Finally, the Board held that an alien who was inadmissible when he or she adjusted status from temporary resident to permanent resident under INA 245(a)(b)(1) was not lawfully admitted for permanent residence.

• The Matter of Adeniye, 26 I&N Dec. 726 (BIA 2016) (as amended) [see article]

Decided as amended:  May 2, 2016  

The Board held that an offense relating to failure to appear is an immigration aggravated felony under INA 101(a)(43)(Q) [see section] if a sentence of at least 5 years’ imprisonment could have been imposed for the underlying offense (regardless of whether it was imposed).

• The Matter of Ruzku, 26 I&N Dec. 731 (BIA 2016) [see article]

Decided:  March 29, 2016

The Board held that the United States Citizenship and Immigration Services (USCIS) should accept sibling-to-sibling DNA test results reflecting a 99.5 percent degree of certainty or higher that a full sibling biological relationship exists, and that such evidence should be considered probative evidence of the sibling relationship.

• The Matter of Garza-Oliveras, 26 I&N Dec. 736 (BIA 2016) [see article]

Decided:  May 5, 2016

The Board held that when determining if an offense falls under the immigration aggravated felony provision found in INA 101(a)(43)(T) [see section], the categorical approach should be used to determine whether the offense was for failure to appear before a court, but the circumstance-specific approach should be used to determine if the underlying offense was under a court order to answer or dispose of a charge of felony for which a sentence of 2 years’ imprisonment or more may be imposed.

• The Matter of Gonzalez-Romo, 26 I&N Dec. 743 (BIA 2016) [see article]

Decided:  May 19, 2016

The Board held that within the jurisdiction of the Ninth Circuit [1],  a permanent resident who has a felony conviction for solicitation to possess marijuana for sale is inadmissible under INA 212(a)(2)(A)(i)(I) as an alien who committed a crime of moral turpitude even though INA 212(a)(2)(A)(i)(I) refers only to attempt and conspiracy to commit a crime of moral turpitude.

Please see our related article on the immigration aggravated felony for trafficking in controlled substances [see article].

• The Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016) [see article]

The Matter of H. Estrada dealt with two distinct issues, so we broke the case into three articles (an introduction and one article covering each of the issues).

First, the Board held that when determining whether a conviction is for a crime of domestic violence under INA 237(a)(2)(E)(i), the circumstance-specific approach should be applied to determine the domestic nature of the offense [see article].

Second, the Board held that a clarification order issued by the sentencing judge to correct an obvious discrepancy in the original sentencing order should be given effect in determining whether a respondent was sentenced to a term of imprisonment of at least one year [see article].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. See my blog about the vast extent of the jurisdiction of the Ninth Circuit.

Resources and Materials:

https://www.justice.gov/eoir/precedent-decisions-volume-26

Lawyer website: http://myattorneyusa.com

Overview of LGBTI Asylum

Under current U.S. immigration law, LGBTI aliens may seek asylum in the United States.

In order to establish eligibility for asylum, a homosexual, bisexual, transgender, or intersexed alien must establish that he or she is the member of a “particular social group,” on the basis of which he or she either was persecuted or faces a reasonable fear of persecution in his or her home country.  The Board of Immigration Appeals (BIA) established in the Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990) that homosexual asylum applicants can establish membership in a “particular social group” based on sexual orientation for purpose of seeking asylum in the United States.

In order for an LGBTI alien to establish membership in a particular social group (for purpose of applying for asylum on the basis of persecution in one of those categories), the asylum applicant must generally demonstrate, to the satisfaction of USCIS, that he or she is in fact gay, lesbian, bisexual, transgender, or intersexed.  However, the Third Circuit has held that an alien may also demonstrate membership in a particular social group if he or she faced persecution or faces a reasonable fear of persecution on the basis of being perceived as being a homosexual in his or her home country.

If an LGBTI asylum applicant is able to demonstrate both that he or she is in a particular social group and that he or she was either persecuted or faces a reasonable fear of persecution on the basis of membership in that particular social group in his or her home country, the applicant will still be required to meet all of the other requirements for asylum eligibility.  For example, such an asylum applicant will be required to demonstrate that the conditions in his or her home country are hostile to members of his or her particular social group.  LGBTI asylum applicants are also subject to the generally applicable bars to applying for asylum and bars to eligibility for asylum.

In order to file an asylum application, one must file the Form I-589 with the appropriate USCIS processing center within one year of arriving in the United States.  Any asylum applicant should retain immigration counsel for assistance through the asylum application process, and there are many attorneys who are willing to take on certain asylum cases pro bono.  In addition, LGBTI individuals seeking asylum in the United States may seek assistance from one of the various nonprofit organizations specifically geared toward helping such individuals gain immigration protections.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Resources and materials:

Alexander J. Segal - "LGBT Asylum in the USA"

Article “Sexual Orientation”

Lawyer website: http://myattorneyusa.com

USCIS Announces Filipino World War II Veterans Parole Program Policy

On May 9, 2016, the United States Citizenship and Immigration Services (USCIS) announced the implementation of the Filipino World War II Veterans Parole Program (FWVP) policy effective June 8, 2016. The FWVP will allow the beneficiaries of approved family-based immigrant visa petitions filed by a qualified Filipino WWII veteran (or surviving spouse) to apply for parole while they wait for an immigrant visa number to become available. To learn the background and details of the program, please see our full article [see article]. In this post, I will explain the reasons why USCIS implemented the program and why I think it is an appropriate exercise of the Attorney General's statutory parole authority.

WHY USCIS CREATED THE FWVP

USCIS laid out its reasoning for creating the FWVP policy in a Federal Register notice announcing the program [see 81 FR 28097].

Firstly, the Federal Register notice observed that “more than 260,000 Filipino soldiers enlisted to fight for the United States during World War II.”[1] The notice noted that “[e]stimates indicate that as many as 26,000 of these brave individuals became U.S. citizens.” It estimated that approximately 2,000-6,000 Filipino WWII veterans are alive in the United States today.

Secondly, USCIS recognized that the beneficiaries of approved family-based immigrant visa petitions from the Philippines often face extremely long wait-times before an immigrant visa number becomes available. For example, the chart [see here] shows the Application Final Action Dates for family-sponsored preference cases for Filipino applicants from the June 2016 Visa Bulletin [see Bulletin].

FAMILY-SPONSORED - PHILIPPINES

• F1 — December 22, 2004
• F2A — November 8, 2014
• F2B — June 1, 2005
• F3 — February 1, 1994
• F4 — December 1, 1992

With the exception of the F2A category, the wait times for immigrant visa numbers for Filipinos with approved family-based petitions are extensive.

Accordingly, we can see why USCIS decided to implement the FWVP:

1. In recognition of the brave service rendered to the United States by Filipino WWII veterans.
2. In recognition of the fact that the few surviving Filipino WWII veterans in the United States are now elderly and may wish to have their family by their side in the United States in their old age.
3. In recognition of the scarcity of immigrant visa numbers for family-based applicants from the Philippines.

MY THOUGHTS ON THE FWVP

It has been well-documented on this blog that I have often disagreed with some of the immigration initiatives forwarded by the current administration over the past couple of years [see my blog on the DAPA litigation]. However, I think the FWVP is an example of a well-reasoned and lawful immigration policy.

The FWVP policy is a fair exercise of the Attorney General's discretionary parole authority under section 212(d)(5)(A) of the Immigration and Nationality Act (INA), which provides for the discretionary grant of parole, on a case-by-case basis, where the Attorney General finds either that there are urgent humanitarian concerns or that the grant of parole would serve a significant public benefit. To be sure, it would be hard to argue against USCIS's contention that allowing for parole to be considered on a case-by-case basis for family members of elderly WWII veterans who fought bravely for this country does not serve a significant public benefit. Furthermore, in cases where the veteran is infirmed or lacking other family in the United States, USCIS plausibly argues that parole may also satisfy an urgent humanitarian concern.

The FWVP policy is a welcome initiative for a small number of elderly Filipino WWII veterans still alive in the United States and their family members who may be eligible to benefit. At the Law Offices of Grinberg & Segal, PLLC, we stand ready to assist those who may stand to benefit from the program.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. From 1934-1946, the Philippines was a U.S. commonwealth that was transitioning to full independence (including the period from 1942-1945 when the Philippines was under Japanese occupation).

Lawyer website: http://myattorneyusa.com

DHS publishes final STEM OPT rules

INTRODUCTION: NEW STEM OPT RULES

On March 10, 2016, the Department of Homeland Security (DHS) published a new final rule for STEM optional practical training (OPT) extensions [see rule: 81 FR 13039].

The new rule will come into effect on May 10, 2016. In addition to STEM OPT extensions, the new regulations leave intact H1B “cap gap” protection. To learn about the new regulations in detail, please read our full articles that explain the new regulations in detail:

1. New STEM OPT Regulations and Procedures [see article]
2. H1B Cap Gap Protection 

In this post, I will explain the procedural background that led to the new regulations, differences between the final version of the STEM OPT extension regulations and the final rule, and what may happen next with the pending litigation regarding STEM OPT extensions.

BACKGROUND: LITIGATION AND THE NECESSITY FOR NEW STEM OPT RULES

In June of 2015, a federal District Court held in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, —- F.Supp.3d —— (D.D.C., 2015) [PDF version] [see article] that the Department of Homeland Security's (DHS's) rules regarding STEM optional practical training (OPT) extensions were invalid on the basis that DHS had lacked justification for not putting them through notice and public comment. The District Court stayed the ruling in order to give the DHS time to promulgate new regulations in accordance with the Administrative Procedures Act (APA). The decision was stayed initially stayed until February 12, 2016, and DHS obtained two subsequent extensions to May 10, 2016.

On October 19, 2016, the DHS proposed new regulations for STEM OPT and made them open for public comment until November 18, 2015. Notably, the proposed rule extended the maximum length of a STEM OPT extension from 17 months to 24. Please read our article about the proposed rule [see article].

CHANGES FROM THE PROPOSED RULE

After submitting the proposed rule for public comments, DHS reviewed the comments and made modifications to the proposed rule before submitting the final rule. DHS listed the following changes (paraphrased from 81 FR 13039 unless directly quoted):

• Time of Accreditation: A student seeking a STEM OPT extension based on a previously obtained STEM degree must have obtained the STEM degree from an educational institution that is accredited at the time of the application for the STEM OPT extension.
• Student and Exchange Visitor Program (SEVP) Certification Required for Prior Degrees: A student seeking an extension based on a previously obtained STEM degree must have obtained the STEM degree from an educational institution that is SEVP-certified at the time of the application for the STEM OPT extension (overseas campuses of U.S. educational institutions not eligible).
• Site Visit Notifications: The DHS will provide an employer of STEM OPT students 48 hours noticed before any site visit. However, DHS may visit without notice if there is a complaint or other evidence of noncompliance with STEM OPT extension regulations.
• Focus on Training: DHS states that it has altered the proposed rule's Mentor and Training Program requirements to focus more on training.
• Existing Employer Training Programs: The rule makes exposit that employers may use existing training programs to “satisfy certain regulatory requirements for evaluating the process of students.”
• Employer Attestation: Employers will be required to attest that the student will not replace a full- or part-time permanent resident or permanent U.S. worker.
• Evaluation of Student Progress: The student and an appropriate individual in the employer's organization will be required to sign an evaluation on an annual basis, with a mid-point evaluation during the first 12-months of a STEM OPT extension and a final evaluation before the conclusion of the STEM OPT extension.

HIGHLIGHTS IN THE NEW RULES

The new rules extend the period of STEM OPT extensions from 17 months to 24. Accordingly, they increase the amount of time a student may be unemployed during the extension period and still maintain status. The rules allow students who obtain a second STEM degree at a higher level than the first (if the first was used as the basis for an extension) to apply for a second STEM OPT extension. The rule adds various regulations for employers of STEM OPT students to comply with and provisions to help ensure that STEM OPT students meet their training goals.

To learn about the new rule in detail, please see our full article [see article].

CONCLUSION

The litigation that forced DHS to promulgate new STEM OPT rules is ongoing. The plaintiffs (Washington Alliance of Technology Workers) are challenging DHS's underlying authority under the Immigration and Nationality Act (INA) to authorize STEM OPT extensions. While the litigation on the issue bears watching, students seeking STEM OPT extensions may pursue them under the new rules with confidence. We will be sure to keep you abreast of further developments on the issue here on our website.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com