The BIA held that a statute of conviction is divisible if some conduct that satisfies an element of the offense could result in removal while other conduct would not. Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012) (Cole, Pauley, and Wendtland, Board members). Board member Pauley wrote the panel’s decision. This case involved an LPR convicted of menacing in the second degree, NY Penal Code § 120.14. An IJ determined that this was a firearms offense under INA § 237(a)(2)(C). Upon remand from the U.S. Court of Appeals for the Second Circuit, the BIA was required to determine whether the [...]
2nd Circuit: Time in USA while asylum and adjustment applications pending does not count toward continuously lawful residence required for § 212(h) waiver
The Second Circuit held last week that the time that a person spends in the USA while an asylum application or adjustment of status application is pending does not count toward the 7 years of lawful continuous residence required to be eligible for a § 212(h) waiver of inadmissibility. Rotimi v. Holder, No. 06-0202-ag, slip op. (2nd Cir. Aug. 14, 2009) (Feinberg, Newman, Katzmann). Rotimi sought the § 212(h) waiver due to a conviction for attempted criminal possession of a forged instrument in the second degree, New York Penal §§ 110.00, 170.25.Since this case turned on the [...]