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Fifth Circuit Finds that Despite Ambiguity in Record of Conviction, Burden Rests on Alien to Prove Conviction is not Related to a Controlled Substance

By Alex Sheppard Last month the Fifth Circuit Court of Appeals released a decision on (1) whether the alien or the government bears the burden of proof in determining whether grounds for mandatory denial of an alien’s application for relief do not apply when the alien has demonstrated ambiguity in the record of conviction; (2) whether that burden was met; and (3) the effect of a Canadian pardon for the conviction in question. Le v. Lynch, No. 13-60664, slip op. (5th Cir. Jan. 6, 2016). The Fifth Circuit ruled that despite ambiguity in the record, the alien bears the burden of proof; that [...]

Posted by César on February 25, 2016 on 6:15 am 1 Comment
Filed Under: 5th Circuit Court of Appeals, adjustment of status, burden, guest blogger, record of conviction

BIA: After 9 circuits disagree, changes course on 212(h) eligibility for LPRs

No one can accuse the Board of Immigration Appeals of giving up easily. Only after nine federal circuits disagreed did the BIA finally reconsider its position on which lawful permanent residents are eligible to seek a waiver of inadmissibility under INA § 212(h). Matter of J-H-J-, 26 I&N Dec. 563 (BIA May 12, 2015). This case involved a migrant who became an LPR through adjustment of status. After being convicted of an assault offense that he conceded was an aggravated felony, he sought to readjust his status. To overcome the inadmissibility bar that resulted from his conviction, the [...]

Posted by César on August 11, 2015 on 4:00 am 3 Comments
Filed Under: 212(h), adjustment of status, aggravated felony, Board of Immigration Appeals

BIA: Adjustment is admission for removal; refines what constitutes “element” of offense

The Board of Immigration Appeals did a lot in a short ten-page decision: held that adjustment of status constitutes an admission when determining removal, providing some clarity on when a sentencing enhancement constitutes an “offense,” and ultimately held that the military’s version of sodomy by force is a crime of violence type of aggravated felony. Matter of Chavez-Alvarez, 26 I&N Dec. 274 (BIA 2014) (Pauley, Guendelsberger, and Malphrus, Board members). Board member Pauley wrote the panel’s decision. This case involved a member of the U.S. Army convicted of sodomy by force in [...]

Posted by César on May 22, 2014 on 9:00 am Leave a Comment
Filed Under: adjustment of status, admission, aggravated felony, Board of Immigration Appeals, crime of violence, element

Immigration law in the age of marijuana decriminalization

By Jordan Cunnings In a recent New Yorker interview, President Obama described marijuana use as a “bad habit and a vice, not very different from. . . cigarettes,” and not more dangerous than drinking. The President expressed concern with the disproportionate rates of criminal punishment for marijuana use in poor and minority communities, and spoke favorably of recent efforts to legalize small amounts of the drug in the states of Colorado and Washington. While Obama’s comments may be a good sign for marijuana legalization advocates, his personal viewpoint is glaringly inconsistent with his [...]

Posted by César on March 4, 2014 on 9:00 am 7 Comments
Filed Under: 212(h), adjustment of status, cancellation of removal, commentaries, controlled substance offense, guest blogger

7 Cir: Posner tells BIA to follow precedent; person who leaves & returns is seeking admission

In an opinion that has become characteristic of his stance toward the Board of Immigration Appeals, Judge Posner, writing for a panel of the U.S. Court of Appeals for the Seventh Circuit, told the Board that it can’t just ignore its own precedent: a noncitizen with a criminal history who leaves the country and seeks to return must be treated as a person seeking admission. Margulis v. Holder, No. 12-3611, slip op. (7th Cir. Aug. 5, 2013) (Posner, Manion, and Rovner, J.). Mr. Margulis was successfully represented by Valparaiso University Law School’s Immigration Clinic, run by Professor Geoffrey [...]

Posted by César on August 27, 2013 on 9:00 am Leave a Comment
Filed Under: 212(h), 7th Circuit Court of Appeals, adjustment of status, admission, waiver

4 Cir: Adjustment isn’t admission for 212(h) waiver; waiver applicant vindicated

By Guest Blogger Toni Maschler This week, the U.S. Court of Appeals for the Fourth Circuit reversed a decision “pretermitting” (denying due to ineligibility) the application for relief from inadmissibility under INA § 212(h) due to an aggravated felony conviction. Mendoza Leiba v. Holder, slip op. No. 11-1845 (4th Cir. Nov. 9, 2012). Mr. Mendoza’s petition for review was granted, reversing the earlier decisions of the Immigration Court and Board of Immigration Appeals. Mr. Mendoza, a Salvadoran married to a U.S. citizen and the father of five U.S. citizen children, had been placed in removal [...]

Posted by César on November 15, 2012 on 9:00 am 23 Comments
Filed Under: 212(h), 4th Circuit Court of Appeals, adjustment of status, admission, aggravated felony, guest blogger, waiver

BIA: Cuban adjustment of status constitutes admission for § 237 removal purposes

The BIA held that an individual whose status was adjusted from parolee to lawful permanent resident pursuant to the Cuban Refugee Adjustment Act of 1966 was dmitted for purposes of removal under INA § 237(a). Matter of Espinosa Guillot, 25 I&N Dec. 653 (BIA 2011) (Grant, Malphrus, and Mullane, Board members). Board member Grant wrote the panel’s decision. This case involves a Cuban citizen who was paroled into the United States and adjusted his status under the CRAA (often referred to as the Cuban Adjustment Act or CAA). Guillot subsequently was convicted of trafficking in cannabis and [...]

Posted by César on February 16, 2012 on 9:00 am 9 Comments
Filed Under: 11th Circuit Court of Appeals, 212(h), 5th Circuit Court of Appeals, adjustment of status, admission, waiver

3 Cir: MN sex offender registration not CIMT; adjustment doesn’t reset admission date

The U.S. Court of Appeals for the Third Circuit recently held that Minnesota’s predatory offender registration crime does not involve moral turpitude. Totimeh v. Attorney General, Nos. 10-3939 & 11-1998, slip op. (3d Cir. Jan. 12, 2012) (McKee, Rendell, and Ambro, JJ.). The court also followed the BIA’s 2011 decision in which the Board held that the applicable date of admission for removability is the date on which the noncitizen was in the country when the crime was committed as opposed to a later adjustment of status date. Judge Ambro wrote the panel’s decision. This case involves an [...]

Posted by César on January 19, 2012 on 9:00 am 62 Comments
Filed Under: 10th Circuit Court of Appeals, 3d Circuit Court of Appeals, adjustment of status, admission, crime involving moral turpitude, failure to register, multiple CIMTs

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