Board of Immigration Appeals

BIA rejects retroactive application of California sentencing change

By Kim Langona In Matter of Velasquez-Rios, issued on October 4, 2018, the Board of Immigration Appeals (BIA or the Board) concluded that federal law, rather than state law, must be used to determine the immigration consequences of a state conviction. 27 I&N Dec. 470, 474 (BIA 2018). Thus, a 2014 California legislative enactment that “retroactively lowered the maximum possible sentence” for a state conviction “from 365 days to 364 days, does not affect the applicability of section 237(a)(2)(A)(i)(II) of [the Immigration and Nationality Act] to a past conviction for a crime involving [...]

BIA: CHILD ENDANGERMENT OFFENSE IS CHILD ABUSE UNDER § 237(a)(2)(E)(i)

By: Thamys Gaertner In a decision issued on February 9, 2016, the Board of Immigration Appeals (BIA) concluded that a crime of endangering the welfare of a child is categorically a removable offense under § 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012). Henry Javier Mendoza Osorio is a native of Ecuador and a United States lawful permanent resident. Matter of Mendoza Osorio, 26 I&N Dec. 703 (BIA 2016). Mr. Mendoza Osorio was convicted of endangering the welfare of a child under § 260.10(1) of the New York Penal Law. Id. Consequently, DHS [...]

BIA: Stolen mailbox keys leads to aggravated felony conviction

Stealing mailbox keys proved the gateway to an aggravated felony conviction after Bandele Adeniye failed to show up for his court date, the Board of Immigration Appeals recently held. Matter of Adeniye, 26 I&N Dec. 726 (BIA March 17, 2016). Back in 1995 Mr. Adeniye, an LPR until that status was rescinded, was convicted of stealing mailbox keys, a federal felony in violation of 18 U.S.C. § 1704. Though it was news to me, stealing mailbox keys is apparently punishable by up to ten years imprisonment. Id. Before stepping into prison, Adeniye absconded. In 2014 he was caught and convicted [...]

BIA: Crime of violence requires violent physical force

The Board of Immigration Appeals recently held that an aggravated battery offense could not be considered a crime of violence type of aggravated felony because the state statute did not require use of violent physical force. Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016). This case involved a lawful permanent resident convicted of aggravated battery in violation of Puerto Rico Penal Code art. 122. The immigration judge concluded that this conviction satisfied the definition of crime of violence found at 18 U.S.C. § 16(a), namely, that the offense “has as an element the use, [...]

BIA creates rebuttable presumption for cancellation of removal applicants

By Alex Sheppard On October 28, 2015, the Board of Immigration Appeals (BIA) decided the companion cases Matter of Garcia-Ramirez, 26 I&N Dec. 674 (BIA 2015), and Matter of Castrejon-Colino, 26 I&N Dec. 667 (BIA 2015), both of which addressed the burden of proof that rests on cancellation of removal applicants who are demonstrating continuous physical presence, a requirement for non-lawful permanent residents seeking this form of relief from removal. In the decisions, the BIA held that “[W]here an alien had the right to appear before an Immigration Judge, evidence that photographs [...]

BIA: Rehab is no different than jail, at least sometimes

When trying to figure out if a migrant has been sentenced to imprisonment, a court-ordered drug rehabilitation facility should be treated just like jail time, the Board of Immigration Appeals recently held. Matter of Calvillo Garcia, 26 I&N Dec. 697 (BIA 2015). In doing so, the BIA further disincentivized alternative dispositions that have become a mainstay of criminal proceedings as a way of diverting people from prisons and into supportive treatment environments. This case involved an LPR convicted of aggravated assault in Texas and sentenced to five years of community supervision, [...]

10 Cir rejects retroactivity of BIA decisions which change circuit precedent

By Mark R. Barr The U.S. Court of Appeals for the Tenth Circuit issued a precedential decision this week finding that a ruling from the BIA which interprets an ambiguous statute, and which overrules prior circuit court precedent under Brand X, should be presumed to act prospectively only. De Niz Robles v. Lynch, No. 14-9568, slip op. (10th Cir. Oct. 20, 2015). The decision will have a potentially sweeping impact on individuals who relied on controlling Tenth Circuit precedent only to have those settled expectations upset by an intervening, contrary Board decision. Our client, Alfonzo De [...]

BIA: Exceptions Must Apply to Consider Returning Lawful Permanent Residents as Seeking Admission to the U.S.

By: Sarah Flinn The Board of Immigration Appeals recently held that a returning lawful permanent resident may not be regarded as seeking admission to the United States unless one of the exceptions listed in INA § 101(a)(13)(C) applies. Matter of Pena, 26 I&N Dec. 613, 618 (BIA June 16, 2015). The main issue faced by the Board in Matter of Pena is whether Mr. Pena, who was granted lawful permanent resident status on June 5, 2000, could be charged under INA § 212(a) as an arriving alien seeking admission to the U.S. despite the fact that none of the exceptions in § 101(a)(13)(C) [...]