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Disclaimer

The information contained in these articles are intended to educate members of the public generally and is not intended to provide case-specific legal advice or solutions to individual problems. Readers are not to attempt to solve individual problems on the basis of information contained herein and are strongly advised to seek competent legal counsel who is familiar with the Immigration Laws before relying on the information contained in these articles.

Each of the immigration cases is different based on the circumstance, rights of the alien, the location of the DHS (INS) office, the immigration hold facility and immigration judge. Please do not take the following articles and court decisions, as possible final answer to your case, as they may vary from the examples.


by Brian K. Bates, Houston, TX


THINGS YOU SHOULD KNOW ABOUT IMMIGRATION AND CRIMES

By Brian K. Bates

Quan, Burdette & Perez, P.C.

5177 Richmond Avenue Suite 800 Houston, TX 77056 Tel (713) 625-9200

www.quanlaw.com

I. INTRODUCTION

Let's begin with two simple facts: First, many people residing in the United States are not United States citizens. That is why immigration attorneys earn a living. Second, many people residing in this country occasionally run afoul of its criminal laws. That is why criminal defense attorneys can earn a living. Sometimes, these two groups intersect such that immigration attorneys may find clients accused or even convicted of crimes, and criminal defense attorneys may have clients who are not citizens. Worlds collide. Chaos threatens. Things --often very bad things --happen.

For the most part, the criminal justice system is unconcerned with the citizenship of its customers. Citizens and immigrants are sent to jail without distinction. The criminal defense attorney can therefore manage to perform his or her function with knowing much immigration law. The immigration legal system however, places very significance criminal conduct such that the "civil" immigration consequences €“deportation or removal, permanent exile from the United States, denial of any opportunity to obtain or preserve legal status, etc. --­ are frequently far more severe than the harshest possible criminal sentence. Ask yourself: €œWhich would you rather endure, a year in a U.S. jail, or the rest of you life across the world, with no chance to return to your family, home and job in the United States?"

Since the immigration consequences are so severe, both the immigration attorney and the criminal defense practitioner should be aware of those consequences. In some cases, of course, it will not be possible to change the outcome of the criminal trial, nor the immigration proceedings that follow. In many others, however, tragedy may be prevented if the defense attorney and the client are simply aware of the immigration issues. Immigration and criminal defense lawyers can work together to anticipate and prevent unjust results. This paper intends a modest start. Some of the information will be very basic for immigration attorneys, because it is being written from the perspective of an immigration attorney speaking to other attorneys who may have less familiarity with the Immigration and Nationality Act.

____________________________

*BRIAN K. BATES practices Immigration and Nationality law with the Houston, Texas firm of QUAN, BURDETTE & PEREZ, P.C. 5177 Richmond Avenue Suite 800 Houston, TX 77056 Tel. (713) 625-9200. He received his undergraduate and legal education at Southern Methodist University (BS 1976 [Political Science], JD 1979) .He has been Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization since 1984, and served for many years on the Board's Immigration and Nationality Law Exam Commission. He is the author of "Good Ideas Gone Bad: Plea Bargains and Resident Aliens, " 66 TEXAS BAR JOURNAL 878 (November 2003), "A Brief Tour of Wonderland: A Practical Introduction to Exclusion Proceedings, " 90-IMMIGRATION BRIEFINGS (January 1990), and Co-author with B. Hake of €œTale of Two Cites: Due Process and the Plenary Power Doctrine, "92-4 IMMIGRATION BRIEFINGS (April 1992). He is a past Chair of the Texas Chapter, American Immigration Lawyers Association (1993 J, i94), and the Winner of two AILA Texas Chapter Litigation Awards (1988, 1996). He received the Sam Williamson Mentor Award from AILA in June

1998. He is listed in the publications Best Lawyers in America, and Texas Super Lawyers.

II. BACKGROUND INFORMATION

Before proceeding, it would be useful to settle some basic terminology. The law defines an "alien" as anyone who is not a citizen or national of the United States (the distinction between a "citizen" and a "national" is subtle, and of no relevance to this discussion). Aliens may generally be divided into two groups: those with permanent legal status in the United States, and those without. Those who are entitled to reside and work here permanently are called "lawful permanent residents" or "LPR's". The card that evidences LPR status is commonly called a "green card," although it has not been green for over years.

After residing in the U.S. for a certain period of time (usually five years after receiving LPR status), an otherwise eligible immigrant may apply to become a United States citizen through a process called "naturalization."

Aliens who are not LPR's may be in the United States legally in a temporary or "nonimmigrant" visa status. Common examples of nonimmigrant categories include tourist visas and border crossing cards, student visas, and several types of temporary worker visas. And, of course, many aliens, especially in the border areas, may be here illegally without any status.

Criminal conduct may be relevant to a non-citizen in several ways. For an alien who is not an LPR, a conviction will almost certainly result in deportation or removal, and even an "admission of the essential elements" of certain offenses may prevent them from ever receiving permanent resident status. For an LPR, convictions of certain offenses will result in deportation or removal. At the very least, a conviction may prevent an otherwise qualified permanent resident from becoming a citizen.

A. Statutory References

Analyzing a criminal/immigration problem is to a very great extent a function of the interplay of several statutes, all of which must be consulted and cross-checked. The criminal grounds that will make an arriving alien inadmissible are found at INA §212 (a)(2). 8 U.S.C. § 1182(a)(2). The criminal grounds that will make an alien already admitted deportable are found at INA §237(a)(2). 8 U.S.C. §1227(a)(2). The particularly onerous category of "aggravated felony" is defined at INA §101(a)(43). 8 U.S.C. §1101{a)(43). Finally, many immigration­ related applications require a showing of" good moral character." The statutory definition of "good moral character" is found at INA §101(f). 8 U.S.C. §1101(f).

There are generally five categories of criminal offenses that will render an arriving alien inadmissible to this country:

(I) crimes involving moral turpitude [INA §212(a)(2)(A)(i)(I);

(2) controlled substance offenses [INA §212(a)(2)(A)(i)(ll)];

(3) any combination of two or more offenses that results in an aggregate sentence of five years, regardless of whether the individual crimes themselves would constitute a ground of inadmissibility [INA §212(a)(2)(B)];

(4) prostitution and commercialized vice [INA §212(a)(2)(D)]; and

(5) money laundering [INA §212(a)(2)(I)]. Note that some of these offenses render an alien inadmissible even if there is no conviction; he or she need only admit the essential elements of the offense or, in the case of drug traffickers, the Government need only have "reason to believe." INS §212(a)(2)(A), (C).

There are essentially five classes of criminal offenses that commonly constitute grounds of deportability:

(1) crimes involving moral turpitude [INA §237(a)(2)(A)(i) and (ii)];

(2) offenses relating to controlled substances [INA §237(a)(2)(B)];

(3) offenses relating to firearms [INA §237(a)(2)(C)];

(4) offenses relating to domestic violence [INA §237(a)(2)(E)]; and

(5) "aggravated felonies" as defined in §101(a)(43) of the Immigration and Nationality Act. INA §237(a) (2)(A)(iii).

There is, of course, considerable overlapping of these categories, all of which may be found in INA §237 (a)(2). 8 U.S.C. §1227(a)(2).

Finally, criminal conduct may affect the issue of good moral character in several ways. Essentially, any criminal offense that renders an alien inadmissible or deportable will also preclude a finding of good moral character if it takes place during the period for which good moral character is required (which varies depending upon the application). INA §101(f)(3), 8 U.S.C. §1101(f)(3). Conviction for an aggravated felony is a permanent bar to good moral character INA §101(t)(8). Imprisonment for an aggregate of 180 days or more during the specified period will preclude a finding of good moral character, regardless of the nature of the offense or offenses and whether they have any other effect under the Immigration and Nationality Act. INA §101(f)(7), 8 U.S.C. §1101(t)(7).

B. Deportation or Removal Proceedings

Proceedings to deport or exclude an alien are conducted before an Immigration Judge, an administrative adjudicator employed by the Executive Office for Immigration Review (EOIR), a small agency within the Department of Justice. While great strides have been made in recent years to make the proceedings more formal and fair, deportation or removal proceedings, remain very informal in comparison to a criminal trial.

1. Nature of the Proceedings

There is no jury in Immigration Court proceedings: the Immigration Judge is empowered to make both findings of fact and conclusions of law. The Strict rules of evidence do not apply, and hearsay is routinely admitted. Further, the Supreme Court has repeatedly held that deportation proceedings are civil in nature, and that the constitutional safeguards available to criminal defendants --such as protection against unlawfully seized evidence and ex post factoapplication of new legislation­ do not apply. See, e.g., INS v. Lopez-Mendoza, 468 U.S. 1032

______________________________

1 However, this applies only to aggravated felony convictions issued on or after November 29, 1990. 8 CFR §316.10(b )( I )(ii).

(1984); Galvan v. Press, 347 U.S. 522 (1954). ;

Essentially, the only constitutional right that an alien possesses is the right to a "fundamentally fair" expulsion hearing. Arid what passes as "fundamentally fair" in Immigration Court would shock most attorneys practicing in other areas of the law.

Prior to April 1, 1997, there were two types of expulsion proceedings-"deportation" and "exclusion" - depending upon whether the alien had "entered" the United States or was applying for admission. The Illegal Immigration Reform and Immigration Responsibility Act of 1996 ("IIRIRA"), however, erased the procedural distinctions between deportation and exclusion proceedings. Effective for proceedings commenced on or after April 1, 1997, IIRIRA combined the two into what is now called "removal proceedings."

A "removal hearing" has been defined as "a court procedure that makes a determination on whether an alien, who is subject to deportation or removal, may be admitted or removed from the United States." Austin T. Fragomen, Jr., et al., IMMIGRATION LEGISLAT0N HANDBOOK (2000). As will be seen, however, an alien with a criminal conviction is usually "subject to deportation or removal," and there is little "whether" for an Immigration Judge to "determine!"

2. How the Proceedings "Proceed"

One thing must be clearly understood: criminal cases are in no way relit gated in Immigration Court. An Immigration Judge will not go behind a criminal conviction, nor question the underlying sufficiency of it. Matter of Roberts, 20 I. & N. Dec. 294 (IA 1991). Submission of a certified copy of the conviction generally constitutes the entire evidentiary portion of the deportation hearing. Whatever is said in that certified copy is conclusively proven in deportation proceedings.

It therefore does not matter what the alien did or did not do - the only thing that matters is what the judgment says he or she did. Deportability becomes a pure question of law: whether the judgment submitted qualifies as a "conviction," and whether the offense qualifies as one of the deportable categories contained in the Immigration and Nationality Act.

C. Relief from Removal

A deportation or removal hearing, much like a criminal trial, has two parts. The first part is to determine the issue of deportability or (in the case of an arriving alien) inadmissibility. This is comparable to the guilt or innocence phase of a criminal, trial. The alien (called the "Respondent") is called upon to plead to the charges on the charging document. If any of the charges are denied, a hearing is conducted to determine whether the Respondent is deportable. If deportability is based upon a criminal conviction, documentary evidence of the conviction submitted by the prosecuting attorney from the Department of Homeland Security ("DHS") is usually the total extent of the evidentiary "hearing," as noted above.

If the Respondent is found deportable, the second phase of the hearing is to determine whether he or she must be deported or whether there is some form of relief from deportation available. This is comparable to the punishment phase of a criminal trial. Some examples of relief include asylum, "cancellation of removal," and various discretionary waivers of deportability or inadmissibility.

All the forms of relief from removal, the various statutory grounds of eligibility and discretionary factors, is a topic far too complicated for a paper like this to provide even a smattering of coverage. Criminal defense practitioners are therefore encouraged to consult an experienced immigration attorney before representing a non-citizen client. Suffice to say for present purposes that where the "INA " provides no relief from removal, as is often the case where deportability is based upon criminal conduct, both phases of the proceedings may be completed in as little as five minutes. The DHS attorney submits an authenticated copy of the criminal judgment, that judgment renders the Respondent deportable and ineligible for any relief, and "No more America for you, Jack!"

III. The Seven Things Everyone Should Know

George Carlin once had a great comedy routine about the "Seven words you cannot say on television." Well, I hereby offer my thoughts on the "seven things everyone should know about crimes and immigration." Now that we have established some context for the discussion that follows, here are the Seven Things:

A. Anyone Who is Not Citizen Can Be Deported

Never assume that a client is a citizen just because the have been here virtually all their life. Many LPR' s came as children and have never become United States citizens through naturalization. Never assume that a client won't be deported (the Author prefers the old term, as being less euphemistic and more honest than the newer term "removed") just because he or she has been an LPR for 30 years and the criminal offense charge seems comparatively minor. Unless and until an alien legally obtains United States citizenship, a criminal offense can and frequently does result in deportation. Believe it.

This is especially true of offenses classified as aggravated felonies under INA §101(a)(43). An alien convicted of an "aggravated felony" is deportable and ineligible for most forms of relief, including cancellation of removal, asylum, or voluntary departure. Aggravated felony convictions are therefore most to be avoided, if at all possible. Unfortunately, this is difficult because many of the offenses do not seem "aggravated" and are not "felonies."

For example: Any theft offense with a sentence of at last a year is an "aggravated felony." INA §101(a) (43)(G). Likewise, any "crime of violence" with a sentence of a year is considered an aggravated felony. INA §101(a)(43)(F). Therefore, a misdemeanor conviction for theft or assault, with a sentence of one year, is an aggravated felony.

B. A Deferred Adjudication is a Conviction

Many immigration and criminal defense attorneys are now aware of this, but it bears repeating: a deferred adjudication is considered a "conviction" for immigration purposes. This was not the case prior to 1996. See, e.g., Matter of Garcia, 16 I&N Dec. 270 (BIA 1985), Martinez-Montoya v.1NS, 904 F.2d 1018 (5th Cir. 1990).

In 1996, however, IIRIRA added to the INA for the first time a statutory definition of "conviction." INA §101(a)(48). That definition has two components. A "formal judgment of guilt" entered by a court will always qualify as a conviction. INAI§101(a)(48)(A). However, a conviction can also exist where "adjudication of guilt has been withheld" so long as there has been a finding of guilt or a plea or guilty or nolo contendere and the court has imposed some restraint upon the alien's liberty. INA §101(a)(48)(A)(i) and (ii).

Texas deferred adjudications have now been held to qualify as "convictions" under the new definition. Matter of Punu, Interim Decision No.3364 (BIA: 1998); Moosa v. INS, 171 F.3d 994 (5th Cir. 1999). And the new definition applies retroactively, to deferred adjudications that predated the new definition in 1996. Moosa v. INS, supra. : Under certain circumstances, discussed below, a deferred adjudication can still be a sentencing option with significant benefits in immigration proceedings, but it is clear that aliens can no longer avoid proceedings altogether by deferring the adjudication of guilt.

But that's not all. Once a conviction is deemed to exist, it is becoming nigh impossible to do anything to eliminate it from consideration as an immigration issue. Expungements under state rehabilitative statutes no longer remove the conviction for immigration purposes. Matter of ROLDAN-Santoyo, Int. Dec. No. 3377 (BIA 1999). More recently, the Board of Immigration Appeals has held that even vacating the conviction for rehabilitative reasons or to relieve immigration hardships does not eliminate it for immigration purposes. To be effective immigrant immigration proceedings, the conviction must vacate for "procedural or substantive defect in the underlying criminal proceedings." Matter of Pickering, 23 I&N Dec. 621 (BIA 2QO3)..

C. Probation Means Nothing in Immigration Court

Another critical fact that everyone should know is that, in assessing immigration consequences, it makes not one bit of difference if any or even all of the alien's sentence of imprisonment is suspended in lieu of probation. A sentence of one year is considered a sentence of one year, even if the alien never actually served a day in jail.

The reason for this is that, at the same time the definition of a "conviction" was added to the INA, Congress added something else. The statute also provides that, for purposes of the INA,

Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.

INA §101(a)(48)(B), emphasis supplied. Therefore, a sentence, of a year probated is still a sentence of one year.

This is incredibly significant in the immigration context, because the length of the sentence determines in many cases whether an offense is an "aggravated felony." As noted earlier, for example, theft offenses and crimes of violence are aggravated felonies if there is a sentence of at least one year. INA §101(a)(43)(F) and (G). The same is true of certain offenses related to racketeering, gambling, bribery, counterfeiting or forgery, and certain passport offenses. SeeINA §§lOl(a)(43)(J), (P) and (R).

This creates a situation that is counterintuitive to most defense attorney thinking. A criminal defense attorney representing an alien charged with theft, for example, would probably be happy to negotiate a plea where his client serves no jail time and wouldn't think twice about accepting a year or more in probation. Yet, in so doing, he would almost certainly doom the alien to deportation and permanent banishment. Any alien charged with such an offense would be better off serving a jail sentence of 364 days than a one year probated sentence. That's weird, but true.

D. Sometimes the Sentence Matters

Next on the list of the "deadly seven" is this unavoidably ambiguous word of caution. While probation means nothing in Immigration Court, sometimes the length of a sentence means a great deal.

As already discussed, some criminal offenses become aggravated felonies with a sentence of a year or more. Another way the sentence can become significant is in relation to multiple offenses. For example: an alien with two or more DWI is would not be deportable from the United States because DWI is neither a crime involving moral turpitude nor an aggravated felony. Matter of TORRES-Varela, 23 I&N Dec. 78 (BIA 2001); U.S. v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001), rehearing denied, 262 F.3d 479 (5th Cir. 2001). However, if sentenced to a total of five years, he or she becomes inadmissible and therefore unable to return home after travel outside the U.S. because any two or more crimes with an aggregate sentence of five years makes an alien inadmissible. INA §212(a)(2)(B). Again, a lengthier probated term may be worse in such cases than a shorter sentence actually served in jail.

Incidentally, this is where a deferred adjudication may still be useful, depending on the state sentencing statute. Let's use the Texas deferred adjudication statute as an example. In cases where the length of the sentence is or may become significant for immigration purposes, a deferred adjudication makes a BIG difference because there is no sentence of imprisonment.While a sentence of imprisonment is considered regardless of whether some or all is suspended in lieu of probation there is no mention of a "term of imprisonment" anywhere in the deferred adjudication statute. Tex. Code Of Crim. P.Art. 42.12, §5(b). The Code provides that the court may defer the adjudication of guilt and place the defendant upon probation for a period of up to two years for any misdemeanor, and up to ten years for any felony. But this is NOT a pronouncement of sentence. The €œpronouncement of sentence" comes, if it ever comes, only AFTER an adjudication of guilt. Id.

While a deferred adjudication is now a conviction for immigration purposes, it cannot be a conviction for an "aggravated felony" in those instances where the aggravated felony definition requires a sentence of imprisonment. Nor can the time spent on deferred probation be considered in the aggregate with other sentences. In such cases, a deferred adjudication may still be a critically important sentencing option for the noncitizen defendant.

E. Sometimes the Sentence Does NOT Matter a Damn Bit

Certain offenses are what they are for immigration purposes regardless of the length of the criminal sentence, and even regardless of whether there IS a sentence. In such cases, obviously, a deferred adjudication has no benefit over any other type of conviction."

Some examples of offenses where the sentence does not matter include:

Murder, rape or sexual abuse of a minor, all of which are aggravated felonies under INA §lOl(a)(43)(A) regardless of sentence.

Any controlled substance offense will make an alien deportable regardless of sentence.

JNA §2l2(a)(2)(A)(i)(ll).

Any controlled substance offense will also make an alien deportable regardless of sentence, except for a single offense of simple possession for personal use of less than 30 grams of marijuana.

INA §237(a)(2)(B).

Drug trafficking crimes, which are aggravated felonies regardless of the sentence.

INA §lOl(a)(43)(B).

Any criminal offense relating to a firearm will render an alien subject to deportation regardless of sentence or the severity of the offense. INA §237(a)(2)(C).

Illicit trafficking in firearms is an "aggravated felony regardless of sentence. INA §10l(a)(43)(C).

Domestic violence offenses are deportable offenses regardless of sentence. INA §237(a)(2)(E); and

A single crime involving moral turpitude is a deportable offense if a sentence of a year or more may be imposed -- the actual sentence received is immaterial to deportability.INA §237(a)(2)(A)(i).

F. Sometimes an Alien Needs to Stay in Jail

The sixth nugget of essential wisdom is that sometimes it is advisable for an alien facing immigration court proceedings to stay in jail. This can arise in two ways.

The first has already been referenced. Since probation does not matter in Immigration Court, it is often far, far better for an alien to serve a shorter sentence in jail than a longer term of probation. Any jail term served that is shorter than one year is advisable where a sentence of one year will be significant under the Immigration and Nationality act.

The second instance where jail can be a "good" thing is where detention by the immigration authorities is likely anyway due to the detention policies of the Immigration and Nationality Act. Some elaboration on those policies is required.

1. Traditional Detention Policy

The immigration enforcement authorities have always had the power to arrest and detain aliens whose presence in the country was thought to be unlawful. Such detention power was, however, not penal in nature; again, Immigration Court proceedings are deemed to be civil in nature no matter how uncivil the results may seem.

In keeping with the civil nature of the proceedings, it was generally held that an alien should not be detained or required to post a bond for his release unless there was reason to believe he or she was a security risk to the community, or likely to abscond. Matter of Shaw, 17 I&N Dec. 171 (BIA 1979). Obviously, in such cases, a criminal history was a relevant determination in considering whether to detain or release on bond, as were any pending criminal charges. Id.

Beginning in 1990, Congress began to shift the presumption against detention. The INA was amended to provide a strong presumption that any alien convicted of an aggravated felony would be detained unless clearly shown not to be a threat or likely to abscond. Matter of De la Cruz, 20 I&N Dec. 346 (BIA 1991). In 1996 (again, in IIRIRA), Congress came full circle.

2. Mandatory Detention

The Immigration and Nationality Act now provides that, aliens who are deportable or inadmissible for criminal convictions, with few exceptions, are to be taken into custody and may only be released under extremely limited circumstances. INA §236(c). A great deal of litigation has been conducted over the past several years, discussion of which is beyond the scope of this paper. Suffice to say that while there have been some victories in habeas corpus proceedings, most have been in District Courts in other Circuits. It is extremely difficult to secure the release of any alien with a criminal conviction from immigration custody.

As a result of this greatly expanded detention authority in, immigration proceedings, the numbers of aliens detained has skyrocketed. In Texas, the DHS contracts with private detention corporations (like Corrections Corporation of America facilities in: Houston and Laredo), as well as various Texas counties for detention space. The Houston DHS: Office frequently must house detainees in surrounding county jails, and €œsurrounding" can meantwo or three counties over!

All too often, an alien charged with a criminal offense appears before a judge or magistrate and a bond is set to insure his appearance for the criminal proceedings. Then, after his family goes to considerable expense to secure the alien's release, they discover that instead of being released he is simply moved from one jail to another. Sometimes, he even stays in the same jail and the only thing that changes is who pays for his meals.

Obviously, an alien defendant and the attorney representing him in the criminal case would like to know whether the immigration authorities will release him before they go to the good trouble and expense of securing his release on the criminal charges. Just having the client change jails is obviously useless. Even worse, it can actually be quite BAD in many cases. Unlike pre-trial detention, immigration detention is not generally credited towards any eventual sentence on the criminal case.

Unfortunately, the DHS will not even discuss custody issues until the alien is actually in their custody --and that doesn't happen until he is released by the state and the detainer shifts to I the DHS. An experienced immigration attorney can, however, advise as to whether release on bond is legally possible, and perhaps make an educated guess at whether it is likely. If release by the immigration authorities is impossible or extremely unlikely, it may be best to simply stay in State custody where, at least, the time spent in pre-trial detention may eventually be credited.

G. Attorneys Can Make Wonderful Friends!

The final nugget of wisdom, directed at both immigration and criminal defense attorneys, should be apparent by now: Get to know each other. Buy a few drinks or the occasional lunch. You have a lot to learn from each other.

The practices of immigration and criminal defense attorneys have much in common. Politicians are always wanting to "get tough" with our clients, no matter how tough the laws may already be and without regard to whether "tougher" laws will serve any useful purpose. The American public goes along with these campaigns because our clients are unpopular -- not as individual human beings, but as an anonymous, faceless class. It is difficult to imagine a worse double pejorative than "criminal alien."

While deportation or removal proceedings are civil in nature, the anguish of permanent exile and separation from home and family are most decidedly part of any criminal "sentence" received. In most cases, deportation is the most significant consequence of the conviction and requires more, and not less, consideration than potential jail time or the amount of a fine.

Consideration of the harsh immigration consequences -- frequently including deportation and permanent exile from the United States -- can very quickly change a "good deal" into "NO deal!" Criminal defense attorneys should therefore buddy up to one or more experienced immigration attorneys to help them advise their clients.

Immigration attorneys should, in turn, make several friends in the criminal defense bar. Immigration clients who are charged with a crime need the best possible representation in the criminal proceedings. Aliens with particularly serious convictions may need post-conviction assistance from an expert criminal defense or appellate attorney, to explore any possibilities of vacating the harmful conviction.

Clients generally look for the easiest way out of the most immediate problem. As their attorneys, we must advise them as to all the consequences when they plead to a criminal charge. Often that means associating a criminal or immigration attorney so that the whole problem may be understood. You have to know what is going on before you can properly advise the client.

"If you don't know what I mean, won't you stand up and scream

'Cause there's things going on that you don It know!

--Lynyrd Skynyrd, Things going On

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How to Locate Immigration Information on Government Websites

by Barry L. Frager, Memphis, TN Barry L. Frager
5100 Poplar Avenue Clark Tower
22nd Floor Suite 2204
Memphis, TN 38137

Tel. (901) 763-3188
bfrager@wolfcnaso.net

Immigration information has become much more accessible since the US Citizenship & Immigration Services (USCIS, previously INS) expanded its website, www.uscis.gov. On the USCIS website you can download forms, find out about various immigrant and nonimmigrant visas, track the progress of petitions and applications, and find out how long each USCIS office is taking to process each petition or application. You can also find the most recent press releases issued by the USCIS make an appointment with your local USCIS office.

Many Law Firms and Government agencies have useful websites that provide important information to their customers. At the Frager Law Firm website, www.fragerlawfirm.com, our address is 5100 Poplar Avenue Clark Tower 22nd Floor Suite 2204 Memphis, TN 38137 Tel. (901) 763-3188 our e-mail address is bfrager@wolfcnaso.net we have developed a substantial "LINKS" section where you can find links to the most useful government websites which provide you with the most up-to-date information on immigration and nationality law directly from the agencies that handle your applications.

Our links allow you to browse the US Department of State website (www.state.gov), where you can look at the monthly visa bulletin and find out whether a visa is available for your immigrant visa petition, you can find Country Reports on foreign countries, or you can find information on the annual Diversity Visa (DV) Lottery. Our links also allow you to directly access the websites of US Embassies and Consulates around the world as well as your country's Consulates located in the U.S.

Our links will take you to such. Informational websites as Amnesty International, the United Nations and the UN Human Rights Commission. You can find links to the US Department of Customs and Border Protection, the US Department of Labor, the Office of Immigration Statistics, and the Executive Office of Immigration Review (EO1R, the immigration court system). We have compiled all these links as a free service to the visitors of our website, because we want you to be able to make an informed decision regarding your immigration law options.

So please stop by the 'Links' section of the Frager Law Firm website, www.fragerlawfirm.comWe suggest that you click on the link to the USC1S website. Browse through the immigration forms, find out the filing fee for each form, and get directions to your local USC1S office. USCIS now allows electronic filing ("e-filing") of applications for Work Authorization Cards (Form I­765) and Replacement of Green Cards (Form 1-90). USCIS is expected to eventually expand the e-filing program to include other forms, as is being done on the DOL website in the process of filing labor certifications under the new regulations of PERM.

The EO1R website has a virtual library on their which gives you access to previous precedent Court decisions used by the local Immigration Judges.

We encourage you to look at all these Government websites where this information is available to the general public. You will find links to all these Government sites on the Frager Law firm website, www.fragerlawfirm.com. And if you have any questions after visiting these sites, we encourage you to contact us.

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Can Immigration Arrest Me if I Have Not Been Convicted of a Crime?

by Barry L. Frager, Memphis, TN Barry L. Frager
5100 Poplar Avenue Clark Tower
22nd Floor Suite 2204
Memphis, TN 38137

Tel. (901) 763-3188
bfrager@wolfcnaso.net

If you are not a United States Citizen, the answer to this question may be YES! If you have been charged with a crime, what you say and do will determine whether Immigration (USICE) can arrest and deport you. This could be based on having committed a crime regardless of whether you were convicted by a Court of law.

Under the Immigration & Nationality Act (INA), admitting the essential elements of a crime may be enough for a non-United States Citizen to be treated by Immigration authorities as a criminal. Whether you are illegal or have a green card, your ability to remain in this country may still be jeopardized. You do not have to be convicted of a crime. The government only has to have a statement from the non- Citizen, admitting the essential elements of a crime, regardless of whether the person is even arrested or charged with the crime.

The best way to protect yourself from this trap is to give your name and address only and invoke your 5th amendment right to remain silent. You can invoke this right by asking for the right to consult an attorney before answering questions about matters that are criminal charges, which include most immigration violations. Many Attorneys have answering services where they can be reached after hours in such an emergency situation.

If a non-United States Citizen is arrested, then it is important to, know that even if the charges are ultimately dismissed, you may still find that USICE will use these dismissed charges against you. These charges could have the equal force of a conviction, if during this process you have admitted the essential elements of the crime (notwithstanding the fact that the charges were ultimately dismissed). This holds true even if the criminal Judge offers you judicial diversion. At the end of the judicial diversion process ( or after the record is held open for a period of time) and before the charges are dismissed, USICE can place a detainer (hold) on you. You may not be released at the end of the criminal matter, or can be arrested at the conclusion of the case, even though the case was dismissed using the above criteria.

The only circumstances that are not treated as a convictions is an acquittal, nolle prosequi, Governor/Presidential pardon, or a diversion through the District Attorney General [in contrast to judicial diversion. ] Even post -conviction relief, where the conviction is challenged in order to reduce the immigration impact on the non-United States Citizen ( example: expungment) will no longer protect the person, from having that original conviction being used as the basis for removal from the, United States. This is notwithstanding the fact that the original charge has been set aside in lieu of a lesser conviction or outright dismissal.

This complicated and complex group of rules which define what is a conviction under the Immigration and Nationality Act is why any non-United States Citizen who has any criminal problem must immediately consult a competent immigration attorney who understands the intricacies of this law. Do not wait until after the criminal matter has been resolved or it may be too late for the Immigration Attorney to help. [Jan 2005]

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Subject

Date

Board Precedents and Related Court Decisions

April 12, 2005

In recent years there have been a number of court cases that have dealt with Board precedents. The following chart briefly notes when a Board ID has been meaningfully cited by a court. The chart is not inclusive of all Board precedent cited in court cases as it began withMatter of Shaar, 21 I&N Dec. 541 (BIA 1996). Please note that Matter of Soriano, 21 I&N Dec. 516 (BIA 1996; A.G. 1997), is not included as the cases interpreting it are so numerous and are still coming in. Matter of N-J-B-, 21 I&N Dec. 812 (BIA 1997), is also excluded as that case was certified to the Attorney General, who vacated it, and it was subsequently superceded by NACARA. We have recently begun to back track and add earlier Board precedent to the chart. The chart is arranged in simple chronological order and only court precedent cases are cited and relied upon.

Please note that this chart is provided as a convenience to the public and is not intended for use as a legal document when preparing an appeal or for citation purposes.

Court Decisions Relating to Board Precedents

Board Cite

Board Holding

Court Response

J -, 2 I&N Dec. 285 (1945)

for deportability based on admitting acts which constitute the essential elements of a crime, conduct must be a crime, alien must be advised in clear manner of the essential elements, alien must admit the conduct, and admission must be voluntary

Pazcoguin v. Radcliffe , 292 F.3d 1209 (9th Cir. 2002) - cited with approval

M-, 3 I&N Dec. 850 (1950)

"Legal custody" can include "actual uncontested custody"

Bagot v. Ashcroft , 398 F.3d 252 (3d Cir. 2005) - adopts rationale

B- , 5 I&N Dec. 698 (1954)

Proxy marriage not recognized even where parties have lived together if marriage not consummated after the proxy marriage

Moussa v. INS , 302 F.3d 823(8th Cir. 2002) - cited with approval

K- , 7 I&N Dec. 594 (1957)

for deportability based on admitting acts which constitute the essential elements of a crime, alien must have been furnished an understandable definition of the crime and all its elements

Pazcoguin v. Radcliffe , 292 F.3d 1209 (9th Cir. 2002) - cited with approval

MacCaud , 14 I&N Dec. 429 (1973)

Passport is evidence of citizenship, but not conclusive evidence

Palavra v. INS , 287 F.3d 690 (8th Cir. 2002) - cites with approval

Medina , 15 I&N Dec. 611 (1976)

A. Conviction for aggravated assault with deadly weapon is crime involving moral turpitude

B. Moral turpitude can lie in criminally reckless conduct

A. Yousefi v. INS, 260 F.3d 318 (4thCir. 2001) - agrees with, and finds assault with dangerous weapon a crime involving moral turpitude

B. Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. 2004) - upholds, finding conviction for attempted reckless endangerment is cimt

Anderson , 16 I&N Dec. 596 (1978)

for extreme hardship, consider length of residence, ties to U.S.,involvement in community, immigration history, etc.

Chete Juarez v. Ashcroft , 376 F.3d 944 (9th Cir. 2004) - cited generally with approval

Patel , 16 I&N Dec. 600 (1978)

Board remand is effective for stated purpose and all other matters IJ deems appropriate unless Board qualifies or limits the remand

Johnson v. Ashcroft , 286 F.3d 696 (3d Cir. 2002) - agrees with and interprets to require that for remand to be limited, Board must specifically retain jurisdiction and limit remand to specific purpose

Da Lomba , 16 I&N Dec. 616 (1978)

241(f) can forgive deportability under section 241(c), a charge grounded squarely on 212 (a)(19) fraud charge

Virk v. INS , 295 F.3d 1055 (9th Cir. 2002) - cites with approval

Kaneda , 16 I&N Dec. 677 (1979)

state court motive of defeating deportability is a permissible purpose for first offender statute

Sandoval v. INS , 240 F.3d 577 (7thCir. 2001) - cites with approval

Flores , 17 I&N Dec. 225 (1980)

forging immigration documents is a crime involving moral turpitude

Omagah v. Ashcroft , 288 F.3d 254 (5thCir. 2002) - finds decision reasonable

Garcia-Flores , 17 I&N Dec. 325 (1980)

regulatory violation by INS results in exclusion of evidence only where reg. benefits alien and violation resulted in prejudice to alien

Martinez-Camargo v. INS , 282 F.3d 487 (7th Cir. 2002)- upholds

Boromand , 17 I&N Dec. 450 (1980)

absent evidence of sham marriage, cannot deny adj based solely on non-viability of marriage at time of adj.

Hernandez v. Ashcroft , 345 F.3d 824 (9th Cir. 2003) - cites with approval

Ramirez-Sanchez, 17 I&N Dec. 503 (1980)

When name on INS records is same as respondent's , may infer they relate to him, absent a denial by the respondent

Guerrero-Perez v. INS , 242 F.3d 727 (7th Cir. 2001) - cites generally with approval

McMillan , 17 I&N Dec. 605 (1981)

visa preference based on stepchild relationship only requires a valid marriage, without further qualification

Medina-Morales v. Ashcroft , 362 F.3d 1263 (9th Cir. 2004) - cited with approval, but finds that Board did not apply the ruling in this case

Frentescu, 18 I&N Dec. 244 (1982)

sets forth criteria for determining whether crime is "particularly serious"

1. Yousefi v. INS, 260 F.3d 318 (4thCir. 2001) - upholds the criteria, but finds not applied in this case

2. Steinhouse v. Ashcroft, 247 F.Supp.2d 201 (D. Conn. 2003) -upholds criteria, but finds Board failed to consider the important criterion of whether the alien presents a danger to the community

Fedorenko , 19 I&N Dec. 57 (1984)

Board's function is to review, not create, the record, and it is not required to receive new evidence on appeal

1. Ramirez-Alejandre v. Ashcroft, 320 F.3d 858 (9th Cir. 2003)(en banc) - reversing its earlier decision in this case, holds Board should have considered new evidence

2. Ordonez v. INS, 345 F.3d 777 (9thCir. 2003) - rejects

Acosta , 19 I&N Dec. 211 (1985)

A. "Particular social group" is group sharing common, immutable characteristic

B. Asylum applicant must show country-wide persecution

A.1. Lukwago v. Ashcroft, 329 F.3d 157 (3d Cir. 2003) cites generally with approval

A.2. Ahmed v. Ashcroft, 348 F.3d 611 (7th Cir. 2003) - cites with approval

A.3. Lin v. Ashcroft, 356 F.3d 1027 (9th Cir. 2004) - cites with approval, also noting family as potential particular social group

A.4. Elien v. Ashcroft, 364 F.3d 392(1st Cir. 2004) - cited with approval

B. Manzoor v. INS, 254 F.3d 342 (1stCir. 2001) - cautions that burden is on INS, not alien, to show no nation-wide threat, if past persecution has been shown

Valencia , 19 I&N Dec. 354 (1986)

Summary dismissal ok where no brief and only generalized statement on Notice of Appeal

Vargas-Garcia v. INS , 287 F.3d 882 (9th Cir. 2002) - does not reject, butcriticizes the rigid requirements, saying the appeal form does not adequately warn of possible S/D

Torres, 19 I&N Dec. 371 (1986)

A. aliens in exclusion are not eligible for suspension

B. Paroled aliens are properly in exclusion, not deportation proceedings

A.1. Sherifi v. INS, 260 F.3d 737 (7thCir. 2001) - upholds

A.2. Simeonov v. Ashcroft, 371 F.3d 532 (9th Cir. 2004) - cited generally with approval

B. Assa'ad v. U.S. Attorney General, 332 F.3d 1321(11th Cir. 206/5/03) -cited generally with approval

Mogharrabi , 19 I&N Dec. 439 (1987)

asylum applicant must show more than civil strife; states what must be shown, and states alien must show persecutor "could easily become aware" of protected beliefs , etc.

Eduard v. Ashcroft , 379 F.3d 182 ( 5thCir. 2004) - cites with approval

Balibundi, 19 I&N Dec. 606 (1988)

will not consider application for relief on the merits where alien fails to appear

Kaur v. INS , 237 F.3d 1098 (9th Cir. 2001) - distinguished - here, alien appeared but declined to testify without chance to review evidence

Lozada , 19 I&N Dec. 637 (1988),affirmed (see cite)

imposes several requirements for making a claim of ineffective assistance of counsel

1. Lozada v. INS ,* 857 F.2d 10 (1stCir. 1988) - affirmed

2. Castillo-Perez v. INS, 212 F.3d 518 (9th Cir. 2000) - Lozada reqs. "not sacrosanct" - substantial compliance may be sufficient

3. Lara v. Trominski, 216 F.3d 487 (5thCir. 2000) - upholds requirements

4. Hernandez v. Reno, 238 F.3d 50 (1stCir. 2001) - upholds requirements

5. Saakian v. INS, 252 F.3d 21(1st Cir. 2001) - agrees with 9th Cir. that reqs. may not be "arbitrarily" applied

6. Stroe v. INS, 256 F.3d 498 (7th Cir. 2001) - upholds, and rejects any exceptions to Lozada rules - also questions whether there is constitutional right to counsel in deportation proceedings

7. Lu v. Ashcroft, 259 F.3d 127 (3d Cir. 2001) - upholds requirements, BUTfailure to file bar complaint not fatal if reas. explanation

8. Rodriguez-Lariz v. INS, 282 F.3d 1218 (9th Cir. 2002) - Lozada reqs. need not always be "rigidly applied."

9. Melkonian v. Ashcroft, 320 F.3d 1061(9th Cir. 2003) - cited with approval, including req. that prejudice be shown

10. Hamid v. Ashcroft, 336 F.3d 465 (6th Cir 2003) - upholdsrequirements

11. Lo v. Ashcroft, 341F.3d 934 (9thCir. 2003) - makes clear that 9th Cir. will not rigidly apply the requirements

12. Azanor v. Ashcroft, 364 F.3d 1013 (9th Cir. 2004) - 9th Cir. Will require affidavit regarding atty conduct where facts are not plain on the record, and also prejudice must be shown

13. Dakane v. U.S. Attorney General, 371 F.3d 771(11th Cir. 2004) - cited with approval, including req. that prejudice be shown

14. Lara-Torres v. Ashcroft, 2004wl1977670 (9th Cir. 2004) - cites generally, and finds erroneous advice regarding change in law did not taint fairness of proceedings

15. Mohammed v. Gonzales,400 F.3d 785 (9th Cir. 2005) - on prejudice req, states alien only need show "plausible grounds" for relief

Fuentes, 19 I&N Dec. 658 (1088)

A. dangers arising from employment as policeman is not persecution

B. with regard to particular social group and immutable characteristics, makes distinction between current and former policemen

A. Estrada-Escobar v. Ashcroft, 376 F.3d 1042 (10th Cir. 2004) - upholds,and finds rationale applies to terrorist activities, including those of Shining Path.

B. Ahmed v. Ashcroft, 348 F.3d 611 (7th Cir. 2003) - does not reject, but states that distinction "may have gone too far"

Grijalva, 19 I&N Dec. 713 (BIA 1988)

Hearsay is admissible in deportation proceedings unless fundamentally unfair

Velasquez-Valencia v. INS , 244 F.3d 48 (1st Cir. 2001) - cited with approval

Huang, 19 I&N Dec. 749 (1988)

to qualify as returning lawful permanent resident, alien must be returning from a temporary visit abroad

1. Moin v. Ashcroft, 335 F.3d 415 (5th Cir. 2003) - cited with approval

2. Khodagholian v. Ashcroft, 335 F.3d 1003 (9th Cir. 2003) - cited with approval

Rodriguez-Majano, 19 I&N Dec. 811 (1988)

Activity related to civil war is not persecution unless the harm is shown to have been inflicted to overcome a belief or characteristic

Vukmirovic v. Ashcroft , 362 F.3d 1247 (9th Cir. 2004) - cited with approval

Chen , 20 I&N Dec. 16 (1989)

Alien who has suffered past persecution may be granted asylum for humanitarian reasons even without well-founded fear of future persecution

1. Lal v. INS, 255 F.3d 998 (9th Cir. 2001) - upholds reasoning, but finds Board did not properly apply decision in this case - finds Chen does not require ongoing disability

2. Lukwago v. Ashcroft, 329 F.3d 157 (3d Cir. 2003) cites with approval

3. Brucaj v. Ashcroft, 381F.3d 602 (7thCir. 2004) - cites with approval

Anselmo , 20 I&N Dec. 25 (1989)

Board must follow circuit court precedent in cases arising in the circuit

Abdulai v. INS , 239 F.3d 542 (3d Cir. 2001) - generally cited

Soleimani , 20 I&N Dec. 99 (1989)

A. alien not firmly resettled if presence in the U.S. is a consequence of his flight in search of refuge

B. Foreign law is a matter to be proven by the party seeking to rely upon it

C. Finding of firm resettlement does not bar asylum, but is only factor to consider in exercising discretion

A. Ali v. Reno, 237 F.3d 591(6th Cir. 2001) - generally cited, with approval

B. Abdille v.Ashcroft, 242 F.3d 477 (3d Cir. 2001) - followed (on issue of burden of proof in proving foreign law)

C. Diallo v. Ashcroft, 381 F.3d 687 (7thCir. 2004) - notes no longer good law under asylum statute

Villalta , 20 I&N Dec. 142 (1990)

where family and alien were singled out due to political beliefs, well-founded fear shown

Corado v. Ashcroft , 384 F.3d 945 (8thCir. 2004) - cites with approval

Barrett , 20 I&N Dec. 171 (1990)

state drug conviction can constitute "drug trafficking crime" under 18 USC § 924(c)(2) and thus be an ag fel if it would have been punishable under federal law as a felony

Gerbier v. Holmes , 280 F.3d 297 (3d Cir. 2002) - accepts analysis (see also Davis, 20 I&N Dec. 536, below)

Edwards , 20 I&N Dec. 196 (1990)

212(c) applicant with serious criminal history has burden of showing unusual or outstanding equities to warrant grant

U.S. v. Gonzalez-Valerio , 342 F.3d 1051(9th Cir. 2003) - cited with approval

Medrano, 20 I&N Dec. 216 (1991)

motion to reconsider based on legal argument that could have been raised on appeal will be denied

Alvarez-Santos v. INS , 332 F.3d 1245 (9th Cir. 2003) - cited with approval

Sanchez , 20 I&N Dec. 223 (1990)

Proceedings begin when charging document is filed with Immigration Judge

Armendariz-Montoya v. Sonchik , 291 F.3d 1116 (9th Cir. 2002) - cites with approval

Huete, 20 I&N Dec. 250 (1991)

for proper service of OSC by certified mail, need return receipt signed by alien or responsible person at his address

Adeyemo v. Ashcroft , 383 F.3d 558 (7th Cir. 2004) - distinguishes where certified mail receipt bears illegible signature - that is not sufficient to create presumption of delivery to alien or responsible person

Hernandez-Casillas, 20 I&N Dec. 262 (A.G. 1991)

EWI is not eligible for 212(c) relief because there is no comparable ground of exclusion

Farquharson v. Ashcroft , 246 F.3d 1317 11th Cir. 2001) - upholds

Patel, 20 I&N Dec. 368 (1991)

"Entry" requires (1) crossing into U.S., (2) inspection and admission or EWI, and (3) freedom from official restraint

Sidhu v. Ashcroft , 368 F.3d 1160 (9thCir. 2004) - adopts the definition, citing cases from other circuits that have also done so

Cerna , 20 I&N Dec. 399 (1991)

motions to reopen and motions to reconsider are fundamentally different with different requirements

Zhao v. U.S. Dept. of Justice , 265 F.3d 83 (2d Cir. 2001) - cites with approval

D-L- & A-M- , 20 I&N Dec. 409 (1991)

Aliens who lived an worked for 6 years in a third country as lawful temporary residents with option to become permanent residents were firmly resettled there.

Abdille v. Ashcroft , 242 F.3d 477 (3d Cir. 2001) - cites with approval

Coelho, 20 I&N Dec. 464 (1992)

A. where motion to remand really in nature of motion to reopen, it must comply with motion to reopen requirements

B. MTR should not be granted unless new evidence could not have been discovered earlier by "due diligence"

A. Wang v. Ashcroft, 260 F.3d 448 (5thCir. 2001) - upholds

B. Krougliak v. INS, 289 F.3d 457 (7thCir. 2002) - cites with approval

A-A-, 20 I&N Dec. 492 (1992)

5-year imprisonment bar to 212(c) relief applies to aliens regardless of when the conviction occurs (with exception regarding crimes added to af fel definition by IMMACT 1990, if crime committed before that Act)

Toia v. Fasano , 334 F.3d 917 (9th Cir. 2003) - rejects, finding 5-year bar does not apply to aliens who pleaded guilty prior to 1990 Act, and who are otherwise eligible

Beltran , 20 I&N Dec. 521 (1992)

conviction for solicitation to commit a controlled substance offense renders alien deportable as one convicted of drug offense

1. Peters v. Ashcroft , 383 F.3d 302 (5thCir. 2004) - upholds as reasonable interpretation

2. Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997) - distinguishes, where Az solicitation statute encompasses underlying offenses that are not drug offenses

Davis , 20 I&N Dec. 536 (1992);modified Yanez,23 I&N 390 (2002)

A. state drug conviction can be ag fel if analogous to felony under federal law and it contains a "trafficking element"

B. where underlying offense is a crime involving moral turpitude, conspiracy or attempt to commit such crime is cimt

A. Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002) - accepts analysis (see also Barrett, 20 I&N Dec. 171, above)

B. Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. 2004) - agrees with, but distinguishes where crime involves recklessness, because acting recklessly is inconsistent with mens rea required for attempt

Serna , 20 I&N Dec. 579 (1992)

possession of altered immigration documents not a CIMT unless there is intent to use them unlawfully

Omagah v. Ashcroft , 288 F.3d 254 (5thCir. 2002) - finds decision reasonable

Rainford , 20 I&N Dec. 598 (1992)

firearms conviction does not preclude finding of admissibility in conjunction with application for adjustment

Drax v. Reno , 338 F.3d 98 (2d Cir. 2003) - Generally cited and applied

R-, 20 I&N Dec. 621 (1992)

Asylum applicant must show country-wide persecution

Manzoor v. INS , 254 F.3d 342 (1st Cir. 2001) - cautions that burden is on INS, not alien, to show no countrywide threat, if past persecution has been shown

Z- , 20 I&N Dec. 707 (1993)

"Entry" requires (1) crossing into U.S., (2) inspection and admission or EWI, and (3) freedom from official restraint

1. Nyirenda v. INS, 279 F.3d 620 (8thCir. 2002) - adopts definition

2. Farquharson v. Ashcroft, 246 F.3d 1317 11th Cir. 2001) - cites with approval

Gabryelsky , 20 I&N Dec. 750 (1993)

212(c) may be available in conjunction with adjustment for aliens deportable for drug and weapons offenses

1. U.S. v. Gonzalez-Roque, 165 F.Supp. 2d 577 (S.D.N.Y. 2001) - Generally cited and applied

2. Drax v. Reno, 338 F.3d 98 (2d Cir. 2003)- Generally cited with approval and applied

Sosa-Hernandez, 20 I&N Dec. 762 (1993)

241(f) waives not only alien's deportability, but the underlying fraud, and alien is considered lawfully admitted for permanent residence

Virk v. INS , 295 F.3d 1055 (9th Cir. 2002) - cites with approval

Alcantar, 20 I&N Dec. 801 (1994)

Conviction for involuntary manslaughter under Illinois law is "crime of violence" under 8USC §16, and thus an ag fel.

1. Park v. INS, 252 3d 1018 (9th Cir. 2001) - reaches same conclusion , in case involving California involuntary manslaughter statute (mentionsAlcantar in fn)

2. Omar v. INS, 298 F.3d 710 (8th Cir. 2002) - cites with approval in finding that criminal vehicular homicide under Minn. law is a crime of violence

Toboso-Alfonso, 20 I&N Dec. 819 (1990)

sexual orientation can form basis for asylum application

1. Hernaez v. INS, 244 F.3d 752 (9thCir. 2001) - cited with approval

2. Amanfi v. Ashcroft, 328 F.3d 719 (3d Cir. 2003) - cited with approval, but finds Board did not properly apply

Franklin , 20 I&N Dec. 867 (1994),aff'd (see cite)

Missouri conviction for involuntary manslaughter is CIMT - statute required gross deviation from reasonable person's standard of care

Franklin v. INS , 72 F.3d 571 (8th Cir. 1995), affirmed

Grijalva , 21 I&N Dec. 27 (1995)

Where service of OSC is by certified mail, there is strong presumption of effective service

1. Salta v. INS, 314 F.3d 1076 (9th Cir. 2002) - distinguished, because under later statute, service of notice may be by regular mail

2. Ghounem v. Ashcroft, 378 F.3d 740 (2004) -distinguished, because strong presumption of delivery cannot be applied under later statute only requiring delivery by regular mail

3. Adeyemo v. Ashcroft, 383 F.3d 558 (7th Cir. 2004) - distinguishes where certified mail receipt bears illegible signature - that is not sufficient to create presumption of delivery to alien or responsible person

Arreguin de Rodriguez , 21 I&N Dec. 38 (1995)

in exercising discretion, will not give substantial weight to arrest report, absent conviction or corroborating evidence

Billike-Rolosa v. Ashcroft , 385 F.3d 708(6th Cir. 2004) - cites with approval, but finds IJ/Board did not apply it

B- , 21 I&N Dec. 66 (1995) (ID 3251)

asylum granted due to compelling circumstances despite no well-founded fear

Lal v. INS , 255 F.3d 998 (9th Cir. 2001) - cited with approval, but finds Board did not properly apply decision in this case - finds grant of asylum under Chen does not require ongoing disability

D-V- , 21 I&N Dec. 77 (1993)

rape can constitute persecution to support asylum claim

Zubeda v. Ashcroft , 333 F.3d 463 (3d Cir. 2003) - cited with approval

L-G- , 21 I&N Dec. 89 (1995) (ID 3254), modified Yanez, 23 I&N 390 (2002)

For immigration purposes, a state drug offense qualifies as a "drug trafficking crime," under 18 USC 924(c),and thus as an ag fel, only if punishable as a felony under federal drug laws.

1. U.S. v. Hernandez-Avalos, 251F.3d 505 (5th Cir. 2001) - rejects Board interpretation of § 924(c) as "plainly incorrect."

2. Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002) - accepts analysis (see also Barrett, 20 I&N Dec. 171, and Davis, 20 I&N Dec. 536, above)

Rivera-Claros , 21 I&N Dec. 232 (1996)

automatic stay that is granted when filing MTR in absentia hearing continues during appeal from denial of such motion

Kay v. Ashcroft , 387 F.3d 664 (7thCircuit. 2004) - cites with approval

Mendez-Moralez, 21 I&N Dec. 296 (1996)

Discusses factors to consider in adjudicating application for discretionary relief under section 212(h)

Virk v. INS , 295 F.3d 1055 (9th Cir. 2002) - cites with approval in 241 (f) case

Pichardo , 21 I&N Dec. 330 (1996) (ID 3275)

Board won't look behind record of conviction to factual circumstances of crime

1. Sui v. INS, 250 F.3d 105 (2d Cir. 2001) - cites with approval (in footnote)

2. Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004) - cited with approval, and followed

H- , 21 I&N Dec. 337(1996) (ID 3276)

A. asylum may be granted due to compelling circumstances despite no well-founded fear

B. Membership in a clan can constitute membership in a particular social group

A.1. Lal v. INS, 255 F.3d 998 (9th Cir. 2001) - cites with approval, but finds Board did not properly apply decision in this case - finds grant of asylum under Chen does not require ongoing disability

B.1. Hagi-Salad v. Ashcroft, 359 F.3d 1044 (8th Cir. 2004) - cites generally with approval

B.2. Mohamed v. Ashcroft, 396 F.3d 999 (8th Cir. 2005) - cites generally with approval

Kasinga , 21 I&N Dec. 357 (1996)

FGM can be the basis for a persecution claim

1. Olowo v. Ashcroft, 368 F.3d 692 (7th Cir. 2004) - cites with approval, but does not extend to allow derivative asylum based on fear that her daughters (lprs) will be subject to the practice if they return with her, with court emphasizing that they do not have to return

2. Abay v. Ashcroft, 368 F.3d 634 (6thCir. 2004) - cites with approval, and asylum granted where alien fears she will not be able to protect her daughter (also in proceedings) from the practice

3. Balogun v. Ashcroft, 374 F.3d 492 (7th Cir. 2004) - distinguishes, because alien came here several times before first making her FGM asylum claim

4. Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005) - approves, and finds part. social group could be defined as Somali tribe or all Somali women. Also, presumption of well-founded fear cannot be rebutted because harm is ongoing

L-O-G- , 21 I&N Dec. 413 (1996)

A. Reopening may be had where new facts indicate reasonable likelihood of success on merits, so that hearing would be worthwhile

B. Board may deny MTR where regulatory requirements not met, or no prima facie showing of eligibility for relief sought

A. Kay v. Ashcroft, 387 F.3d 664 (7thCir. 2004) - cites with approval

B. Kay v. Ashcroft, 387 F.3d 664 (7thCir. 2004) - cites with approval

Grijalva-Barrera, 21 I&N 472 (1996) (ID 3284)

Ineffective assistance of counsel may be "exceptional circumstance" excusing failure to appear (where MTR is timely), and notes that prejudice need not be shown

1. Saakian v. INS, 252 F.3d 21(1st Cir. 2001) - cites with approval

2. Monjaraz-Munoz v. INS, 327 F.3d 892 (9th Cir. 2003) cites with approval

3. Lo v. Ashcroft, 341 F.3d 934 (9th Cir 2003) - cites no prejudice req. with approval

S-P- , 21 I&N Dec. 486 (1996) (ID 3287)

A. Asylum applicant must show reasonable person would fear persecution OAO, but motivation for persecution need not be shown to a certainty.

B. persecution for "imputed" grounds can satisfy refugee definition

A. Velasquez-Valencia v. INS, 244 F.3d 48(1st Cir. 2001) - cites with approval

B. Amanfi v. Ashcroft, 328 F.3d 719 (3d Cir. 2003) - cites with approval, but finds Bd. did not properly apply rule in case involving person people believed to be homosexual

Shaar , 21 I&N Dec. 541 (1996) (ID 3290), affirmed(see cite)

filing MTR during V D time not an "exceptional circumstance"

1. Shaar v. INS*, 141 F.3d 953 (9th1998)- affirmed

2. Mardones v. McElroy, 197 F.3d 619 (2d Cir. 1999) - cited with approval

3. Azarte v. Ashcroft, 394 F.3d 1278 (9th Cir. 2005) - rejects Shaar post-IIRIRA, holds that where MTR is filed within voluntary departure time, voluntary departure is tolled while Board considers motion

4. Barrios v. Attorney General, 399 F.3d 272 (3d Cir. 2005) - rejects, finds MTR filed within voluntary departure time constitutes "exceptional circumstance" to forgive failure to depart, even in pre- IIRIRA case

Rivera-Claros, 21 I&N Dec. 599 (1996) (ID 3296)

A. MTR in absentia hearing based on ineffective assistance claim denied where Lozadarequirements not satisfied

B. A showing of prejudice is not required to obtain relief from an in absentia order

A.1. Lara v. Trominski, 216 F.3d 487 (5th Cir. 2000) - cited with approval

A.2. Saakian v. INS, 252 F.3d 21(1stCir. 2001) - cites with approval, and distinguishes b/c Lozada satisfied on appeal to Board

A.3. Lu v. Ashcroft, 259 F.3d 127 (3d Cir. 2001) - cautions that failure to file bar complaint is not always fatal to ineffective assistance claim

B.1. Lo v. Ashcroft, 341 F.3d 934 (9thCir. 2003) - cites with approval

X-P-T- , 21 I&N Dec. 634 (1996)

alien forced to have an abortion or undergo sterilization is eligible for asylum and withholding

Qu v. Gonzales , 399 F.3d 1195 (9thCir. 2005) - upholds, as to both asylum and withholding

S-M-J-, 21 I&N Dec. 722 (1997) (ID 3303)

A. even where alien is credible, may need corroborating evidence in asylum case where reasonable to expect, or provide explanation for absence of such evidence.

B. Immigration Judge and Service have role in providing evidence in asylum cases

A.1. Ladha v. INS, 215 F.3d 889 (9thCir. 2000) corroboration req."disapproved" if credible testimony

A.2. Diallo v. INS, 232 F.3d 279 (2d Cir. 2000) - upholds corrob. req. (though remands on facts)

A.3. Kataria v. INS, 232 F.3d 1107 (9th Cir. 2000) - reiterates itsdisapproval of S-M-J-

A.4. Abdulai v. INS, 239 F.3d 542 (3d Cir. 2001) - corrob. req. is not per se invalid (but remands on facts)

A.5. Kayembe v. Ashcroft, 334 F.3d 231(3d Cir. 2003) - cites with approval, upholding requirements

A.6. Miah v. Ashcroft, 346 F.3d 434 (3d Cir. 2003) - cites reqs. generally with approval

A.7. Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003) - cites requirements for requiring corrob. with approval

A.8. Balogun v. Ashcroft, 374 F.3d 492 (7th Cir. 2004) - cites generally with approval, but notes also Board's holding that corroboration required only as to "material facts"

A.9. Berishaj v. Ashcroft, 378 F.3d 314 (3d Cir. 2004) - cites with approval, but notes 3-part inquiry necessary for corroboration

A.10. El-Sheikh v. Ashcroft, 388 F.3d 643(8th Cir. 2004) - upholds, butemphasizes 3-part inquiry for requiring corrob.

A.11. Gontcharova v. Ashcroft, 384 F.3d 873 (7th Cir. 2004) - upholds, but notes rule depends on reasonableness of expecting evidence

A.12. Dorosh v. Ashcroft, 398 F.3d 379 (9th Cir. 2004) - upholds corrob req.

B. Mulanga v. Ashcroft, 349 F.3d 123 (3d Cir. 2003) - cites with approval

C-A-L- , 21 I&N Dec. 754 (1997)(ID 3305)

need to show country-wide fear of persecution

1. Abdille v.Ashcroft, 242 F.3d 477 (3d Cir. 2001) - follows

2. Manzoor v. INS, 254 F.3d 342 (1stCir. 2001) - cautions that burden is on INS, not alien, to show no country-wide threat, if past persecution has been shown

T-M-B- , 21 I&N Dec. 775 (1997) (ID 3307), reversed(see cite)

A. criminal extortion is not persecution "on account of" political opinion where reasonable to conclude those who did the harm were not motivated by the applicant's political beliefs

B. DOS Opinions owed considerable deference, absent contradictory evidence.

A. Borja v. INS*, 175 F.3d 732 (9thCir. 1999) - reversed; finds motivation was in part political

B. Manzoor v. INS, 254 F.3d 342 (1stCir. 2001) - appears to reject - says DOS opinions not binding

N-K- & V-S -, 21 I&N Dec. 879 (1997)

If Lozada reqs met, claim of ineffective assistance of counsel can form basis for MTR after alien ordered excluded in absentia

Osei v. INS , 305 F.3d 1205 (10th Cir. 2002) - cited with approval

Fuentes-Campos , 21 I&N Dec. 905 (1997) (ID 3318)

aliens in exclusion still 212(c) eligible post-AEDPA, even though those in deportation are not

1. U.S. v. Estrada-Torres, 179 F. 3d 776 (9th Cir. 1999) - rejects reasoning of Fuentes-Campos; "it makes no sense" to bar 212(c) in dep. proc., but not in excl. - finds the relief eliminated for both (post- AEDPA OSC and conviction)

2. De Sousa v. Reno, 190 F.3d 175 (3d Cir. 1999) - "assumes, without deciding," that decision is correctbecause both parties agreed

3. Turkhan v. Perryman, 188 F.3d 814 (7th Cir. 1999) - upholds - no equal protection violation

4. Jurado-Gutierrez v. Greene, 190 F.3d 1135 (10th Cir. 1999) - upholds - no equal protection violation

5. Almon v. Reno, 192 F.3d 28 (1st Cir. 1999) - upholds - no equal protection violation

6. Domond v. INS, 244 F.3d 81 (2d Cir. 2001) - reaches same conclusion (no equal protection violation), but does not cite Board case.

7. Servin-Espinoza v. Ashcroft, 309 F.3d 1193 - rejects reasoning,pursuant to U.S. v. Estrada-Torres, 179 F. 3d 776 (9th Cir. 1999) (see above), and remands for 212(c) in limited category of cases

C-Y-Z- , 21 I&N Dec. 915 (1997) (ID 3319)

alien whose spouse was forced to undergo abortion or sterilization may qualify as refugee, and is eligible for asylum and withholding

1. Zhao v. U.S. Dept. of Justice, 265 F.3d 83 (2d Cir. 2001) - accepts, but finds precedent not properly applied here

2. Qiu v. Ashcroft, 329 F.3d 140 (2d Cir. 2003) - cited generally with approval

3. Jie Lin v. Ashcroft, 356 F.3d 1027 (9th Cir. 2004), amended at 377 F.3d 1014 (2004) - cites with approval, raises question of extension to children

4. Ma v. Ashcroft, 361 F.3d 553 (9thCir. 2004) - extends holding to husbands whose traditional marriages are not recognized in China because underage

5. Chen v. Ashcroft, 381 F.3d 221 (3d Cir. 2004) - finds it reasonable to limit Board holding to married couples (rejecting Ma, above)

6. Qu v. Gonzales, 399 F.3d 1195 (9thCir. 2005) - upholds, as to both asylum and withholding

7. Zhang v. Ashcroft, 395 F.3d 531(5thCir. 2004) - finds it reasonable to limit Board holding to married couples (rejecting Ma, above)

J-J- , 21 I&N Dec. 976 (1997) (ID 3323)

A. Board will reopen sua sponte despite filing defects in motion only where there is an exceptional situation, not to cure filing defects or circumvent motions restrictions

B. Appeal or motion is deemed filed when received by the Board

A. 1. Socop-Gonzalez v. INS, 272 F.3d 1176 (9th Cir. 2001) (en banc) - cited generally with approval

Also see on need for exceptional circumstances , Wang v. Ashcroft, 260 F.3d 448 (5th Cir. 2001)

A. 2. Johnson v. Ashcroft, 286 F.3d 696 (3d Cir. 2002) - cites with approval

A. 3. Ekimian v. INS, 303 F.3d 1153 (th Cir. 2002 - cites with approval

B. Smith v. Connor, 250 F.3d 277 (5thCir. 4/25/01) - upholds

S-A- , 21 I&N Dec. 1050 (1997)

Heavy traffic is not reasonable cause for failure to appear at exclusion hearing

De Jimenez v. Ashcroft , 370 F.3d 783 (8th Cir. 2004) - distinguished, because alien gave detailed description of a number of factors that caused the failure to appear

O-D- , 21 I&N Dec. 1079 (1998)

Presenting false ID can indicate overall lack of credibility

Kourski v. Ashcroft , 355 F.3d 1038 (7thCir. 2004) - holds false ID can't be used against alien if he has no reason to know document is forged

Dillingham , 21 I&N Dec. 1001 (1997) (ID3325),reversed (see cite)

foreign expungement of foreign drug conviction not effective for immigration purposes, even if alien would have been eligible for first offender treatment here

Dillingham v. INS,* 267 F.3d 996 (9th Cir. 2001) - reversed

Yewondwosen , 21 I&N Dec. 1025 (1997) (ID 3327)

BIA may grant MTR even if alien fails to submit application for relief in support of the motion where INS actually joins the motion: Board has authority to reopen even where there are technical deficiencies

1. Konstantinova v. INS , 195 F.3d 528 (9th Cir. 1999) - cited with approval(and goes somewhat further)

2. Iavorski v. INS , 232 F.3d 124 (2d Cir. 2000) - generally cited for Board's power to reopen sua sponte

Collado-Munoz , 21 I&N Dec. 1061 (1998)

Fleuti doctrine did not survive the passage of IIRIRA

Tineo v. Ashcroft , 350 F.3d 382 (3d Cir. 2003) - upholds

O-D- , 21 I&N Dec. 1079 (1998) (ID 3334)

BIA sets forth two categories of false documents, noting use of such documents to ease travel or entry may not impugn overall credibility

Akinmade v. INS , 196 F.3d 951 (9thCir. 1999) - agrees with concept of two classifications

Michel , 21 I&N Dec. 1101(1998) (ID 3335)

212(h) now available to ag fels only if they are non-lprs, not lprs

1. United States v. Arrieta, 224 F.3d 1076 (9th Cir. 2000) - cited generally, but appears to accept Board ruling

2. Lara-Ruiz v. INS, 241 F.3d 934 (7thCir. 2001)- finds no equal protection violation in allowing only non-lprs to get 212(h) relief

3. Moore v. Ashcroft, 251 F.3d 919 (11th Cir. 2001) - does not cite Michel, but finds no equal protection violation

4. Lukowski v. INS, 279 F.3d 644 (8thCir. 2002) - accepts decision, finds no equal protection violation

5. Jankowski-Burczyk v. INS, 291 F.3d 172 (2d Cir. 2002) - accepts decision, finds no equal protection violation

6. DeLeon-Reynoso v. Ashcroft, 293 F.3d 633 (3d Cir. 2002) - accepts decision, finds no equal protection violation

7. Taniguchi v. Schultz, 303 F.3d 950 (9th Cir. 8/23/02) - does not citeMichel, but finds no equal protection violation

A-S-, 21 I&N Dec. 1106 (1998)

Board generally defers to Immigration Judge credibility findings

Mayo v. Ashcroft , 317 F.3d 867 (8thCir. 1/27/03, amended 6/25/03) -cited generally with approval

Y-B -, 21 I&N Dec. 1136 (1998)

general, meager testimony not enough in asylum case, and the weaker the testimony, the greater the need for corroboration

1. Mukamusoni v. Ashcroft, 390 F.3d 110 (1st Cir. 2004) - distinguishes on facts

2. Mohamed v. Ashcroft, 396 F.3d 999 (8th Cir. 2005) - cites generally with approval

A-E-M- , 21 I&N Dec. 1157 (1998) (ID 3338)

reasonableness of fear of persecution reduced when family remains behind without difficulty

1. Aguilar-Solis v. INS, 168 F.3d 565 (1st Cir. 1999) - generally cited for rule regarding family left behind

2. Rios v. Ashcroft, 287 F.3d 895 (9thCir. 2002) - Without citing A-E-M-,cautions that continuing safety of family members is a relevant factor in assessing fear, but not sufficient as basis for finding of no well-founded fear

3. Eduard v. Ashcroft, 379 F.3d 182 (5th Cir. 2004) - cites with approval, and states that holding is not limited to cases where persecutor operates regionally

M-D- , 21 I&N Dec. 1180 (1998) (ID 3339), remanded(see cite)

failure to provide corroborating evid where "reasonable to expect it" means failure to meet burden of proof in asylum case

1. Ladha v. INS, 215 F.3d 889 (9th Cir. 2000) - corroboration req."disapproved" if credible testimony

2. Diallo v. INS*, 232 F.3d 279 (2d Cir. 2000) - upholds corrob. req (though remands on facts)

3. Miah v. Ashcroft, 346 F.3d 434 (3d Cir. 2003) -cites generally with approval

4. Dorosh v. Ashcroft, 398 F.3d 379 (9th Cir. 2004) - cites generally with approval

Magallanes-Garcia, ID 3341 (1998); overruled Ramos, 23 I&N 336 (2002)

conviction under Az. law for aggravated driving while under the influence is conviction of a "crime of violence," and thus an ag fel

1. Tapia-Garcia v. INS, 237 F.3d 1216 (10th Cir. 2001) - generally cited, with approval

2. U.S. v. Chapa-Garza, 243 F.3d 92, reh. en banc denied (with dissent), 262 F.3d 479 (5th Cir. 2001) - without citing Magallanes, calls reasoning into question

3. Bazan-Reyes v. INS, 256 F.3d 600 (7th Cir. 2001) - rejects definition of crime of violence

4. Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001) - rejects definition of crime of violence

5. U.S. v Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001) - in sentence enhancement case, finds DUI with injury to another not a crime of violence (does not actually citeMagallanes-Garcia)

6. Francis v. Reno, 269 F.3d 162 (3d Cir. 2001) - distinguished, because conviction here (under Pa. law) did not involve DUI

O-Z- & I-Z-, ID 3346 (1998)

Board finds harassment of Jews on account of religion rose to the level of persecution

Abdille v.Ashcroft , 242 F.3d 477 (3d Cir. 2001) - distinguished on facts

J-P- , ID 3348 (1998)

headache not exceptional circumstance excusing failure to appear where no medical or other evidence to support claim

1. Singh v. INS, 213 F.3d 1050 (9thCir. 2000) - upholds generally (but see B-A-S- case, below)

2. Celis-Castellano v. Ashcroft, 298 F.3d 888 (9th Cir. 2002) - cites generally- finds asthma attack 4 days before hearing did not excuse failure to appear

B-A-S- , ID 3350 (1998)

sore foot not exceptional circumstance where alien did not submit affidavit from doctor or employer, or contact court immediately

1. Singh v. INS* , 213 F.3d 1050 (9thCir. 2000) - remands this precedent decision, finding Board imposed new requirements without notice

2. Celis-Castellano v. Ashcroft, 298 F.3d 888 (9th Cir. 2002) - cites generally, noting that here, no notice problems as in Singh (above) - asthma attack 4 days before hearing did not excuse failure to appear

X-G-W- , 22 I&N Dec. 71 (1998)( ID 3352),superseded,G-C-L- 23 I&N 359 (2002)

Board reopens despite time and number restrictions where fundamental change in law (China population case)

1. Lucacela v. Reno, 161 F.3d 1055 (7thCir. 1998) - generally cited for rule that Board can reopen sua sponte to serve interests of justice

2. Ekimian v. INS, 303 F.3d 1153 (9thCir. 2002) - generally cited for rule that Board can reopen sua sponte to serve interests of justice

Mancera-Monroy , 22 I&N Dec. 79 (1998)

No time limit on MTR in absentia hearing where lack of notice of hearing is shown

Andia v. Ashcroft , 359 F.3d 1181 (9thCir. 2004) - cited with approval

Lei, 22 I&N Dec. 113 (1998) (ID 3356)

Claim of ineffective assistance of counsel does not constitute an exception to 180 limit for filing MTR in an in absentia case

1. Behar v. Ashcroft, 324 F.3d 127 (3d Cir. 2003) - upholds Board ruling

2. Lopez v. INS, 184 F.3d 1097 (9thCir. 1999) -without citing Lei, holds ineff. assistance of counsel can toll time limits for in absentia MTR

3. Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000) - without citing Lei, holds ineff. assistance of counsel can toll time limits for in absentia MTR

4. Riley v. INS, 310 F.3d 1253 (10thCir. 2002) - without citing Lei, holds ineff. assistance of counsel can toll time limits for in absentia MTR

5. Borges v. Gonzales, ___ F.3d ___, 2005 WL 712367 (3d Cir. 2005) - holds ineff. assistance of counsel can toll time limits for in absentia MTR - distinguishes Bejar, above, saying only that time limit can betolled, not that ineffective assistance is an exception to time limit

Punu , ID 3364 (1998)

A. After IIRIRA, the third "finality" prong of Ozkok for determining if conviction exists, no longer exists

B. Deferred adjudication of guilt under Texas law where probation is imposed is a conviction for immigration purposes

A. Moosa v. INS, 171 F.3d 994 (5thCir. 1999) - upholds Board

B. Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001) - Board's holding a "permissible construction" of statute. "Guilty-filed" disposition under Mass. law can be a conviction for immigration purposes - but case remanded on facts.

G-N-C- , ID 3366 (1998)

A. Decision by INS to institute proceedings is not subject to review by Immigration Judge or Board.

B. Without discussion, applies IIRIRA's reinstatement of removal provisions § 241(a)(5) to alien who reentered prior to IIRIRA's effective date.

A. Cortez-Felipe v. INS, 245 F.3d 1054 (9th Cir. 2001) - cites with approval

B. 1. Castro-Cortez, et al. v. Reno, 239 F.3d 1037(9th Cir. 2001) - rejectsapplication of the statute to such aliens

B. 2. Velasquez-Gabriel v. Crocetti, 263 F.3d 102 (4th Cir. 2001)- finds 241(a)(5) does apply to aliens who reenter prior to statute's effective date (does not cite G-N-C-)

B. 3. Bejjani v. INS, 271 F.3d 670 (6thCir. 2001) - rejects application of statute to such aliens (cites G-N-C- in footnote, noting Board did not address issue)

B-B- , ID 3367 (1998)

No ineffective assistance of counsel where counsel made tactical decision, and no egregious conduct

Saakian v. INS , 252 F.3d 21(1st Cir. 2001) - cites with approval, and distinguishes

N-M-A -, ID 3368 (1998)

A. asylum may be granted due to compelling circumstances despite no well-founded fear (though no compelling circumstances here)

B. Asylum applicant has burden to show new source of persecution if no longer well- founded fear from original source

A.1. Lal v. INS, 255 F.3d 998 (9th Cir. 2001) - cites with approval, but finds Board did not properly apply decision in this case - finds grant of asylum under Chen does not require ongoing disability

A. 2. Brucaj v. Ashcroft, 381 F.3d 602 (7th Cir. 2004) - cites with approval, but finds that decision didnot set forth specific types of evidence necessary for humanitarian asylum claims

B. Hasalla v. Ashcroft, 367 F.3d 799 (8th Cir. 2004) - cited with approval

M-S- , 22 I&N Dec. 349) (ID 3369) (1998)

A. requirements for rescission of in absentia order not applicable to MTR that does not seek rescission

B. cannot deny discretionary relief without receiving oral notice of consequences of failure to appear

A. Lopez v. INS, 184 F.3d 1097 (9thCir. 1999) - cited with approval in footnote

B. Ordonez v. INS, 345 F.3d 777 (9thCir. 2003) - cited with approval

Lettman , ID 3370 (1998), affirmed(see cite)

alien convicted of ag fel subject to deportation regardless of date of conviction if placed in deportation proceedings on or after 3/1/91, and crime is within ag fel definition

1. Lettman v. INS*, 207 F.3d 1368 (11th Cir. 2000) - affirmed

2. Lewis v. INS, 194 F.3d 539 (4th Cir. 1999) - upholds

3. Bell v. Reno, 218 F.3d 86 (2d Cir. 2000) - rejects Board and 11th and 4th Circuits' legal analysis, but agrees with conclusion that alien is deportable as ag fel

S-S- , ID 3374 (1999); strongly criticized Y-L-, A-G-, R-S- R-, 23 I&N 270 (AG2002)

determination whether an alien convicted of an ag fel is barred from withholding due to PSC (where sentenced to less than 5 years) requires individual examination of the offense

Chong v. INS , 264 F.3d 378 (3d Cir. 2001) - cited with approval, and notes actual individual hearing on issue of PSC not required

Ruiz-Romero , ID 3376 (1999),affirmed (see cite)

alien convicted of transporting illegal aliens within the U.S. subject to deportation as ag fel

Ruiz-Romero v. Reno* , 205 F.3d 837 (5th Cir. 2000) - affirmed

Roldan, 22 I&N Dec. 512 (ID 3377) (1999), reversed in part (see cite)

no effect to be given in immigration proceedings to expungements, etc.

1. Lujan-Armendariz v. INS andRoldan-Santoyo v. INS*, 222 F.3d 728 (9th 2000) - reversed, but only insofar as Board decision relates to Federal First Offenders Act or state counterparts

2. Herrera-Inirio v. INS, 208 F.3d (1stCir. 2000) - upholds

3. Sandoval v. INS, 240 F.3d 577 (7thCir. 2001) - distinguishes because sentence modification here, not expungement (and notes Roldan has been "called into question")

4. Murillo-Espinoza v. INS, 261F.3d 771(9th Cir. 2001) - upholds as "plausible" construction the Board's holding that state rehabilitative expungements will not be given effect (but see #1 above, for exception)

5. Vasquez-Velezmoro v. INS, 281 F.3d 693 (8th Cir. 2002) - upholds, and specifically declines to adopt reasoning of Lujan-Armendariz

6. Gill v. Ashcroft, 335 F.3d 574 (7thCir. 2003) - upholds, and specifically rejects Lujan-Armendariz (see #1 above)

7. Resendiz-Alcarez v. U.S. Attorney General, 383 F.3d 1262 (11th Cir. 2004) - upholds

8. Cruz-Garza v. Ashcroft, 396 F.3d 1125 (10th Cir. 2005) - upholds rationale, but finds conviction here was not a felony

Onyido , ID 3379 (1999)

"Attempt," as used in section 101(a)(43)(U) of the Act is not limited to crimes formally called "attempts." Intent to defraud plus "substantial step" to commit fraud may be sufficient for attempt under (U).

Sui v. INS , 250 F.3d 105 (2d Cir. 2001) - accepts legal holding, but finds no substantial step here (i.e. distinguishes on facts)

Cervantes-Gonzales , ID 3380 (1999), affirmed(see cite)

IIRIRA amendment to 212(i), adding hardship requirement, applies to cases pending when IIRIRA was enacted

Cervantes-Gonzales v. INS,* 244 F.3d 1001 (9th Cir. 2000) - affirmed

Rosas-Ramirez , 22 I&N Dec. 616 (1999)

alien convicted of ag fel after adjustment of status is deportable as alien convicted of ag fel "after admission"

Shivaraman v. Ashcroft , 360 F.3d 1142 (9th Cir. 2004) - distinguishes, finding that alien admitted as lawful nonimmigrant who later adjusts should have the later adjustment date used as his "admission" date in determining if crime involving moral turpitude was within 5 years of admission

Nolasco , ID 3385 (1999)

No continuous physical presence for suspension if OSC is served less than 7 years after entry

1. Appiah v. INS, 202 F.3d 704 (4thCir. 2000) - upholds (finds stop-time rule constitutional)

2. Gonzalez-Torres, 213 F.3d 899 (5thCir. 2000) - upholds (stop-time rule constitutional)

3. Rivera-Jimenez v. INS, 214 F.3d 1213 (10th Cir. 2000) - upholdsNolasco, but remands on facts re: brief, casual and innocent departure

4. Afolayan v. INS, 219 F.3d 784 (8thCir. 2000) - upholds

5. Ayoub v. INS, 222 F.3d 214 (5th Cir. 2000) - upholds (characterizesGonzalez-Torres, above, as dicta)

6. Angel-Ramos v. INS, 227 F.3d 942 (7th Cir. 2000) - upholds

7. Ashki v. INS, 233 F.3d 913 (6th Cir. 2000) - upholds

8. Rojas-Reyes v. INS, 235 F.3d 115 (2d Cir. 2000) - upholds

9. Bartoszewska-Zajac v. INS, 237 F.3d 710 (6th Cir. 2001) - upholds, and rejects equal protection arguments

10. Ram v. INS, 243 F.3d 510 (9th Cir. 2001) - upholds

11. Guadalupe-Cruz v. INS, 240 F.3d 1209 (9th Cir. 2001) - distinguished, because Immigration Judge incorrectly applied stop-time law before its effective date

12. Sad v. INS, 246 F.3d 811(6th Cir. 2001) - upholds, and also rejects retroactivity and equal protection arguments

13, Pinho v. INS, 249 F.3d 183 (3d Cir. 2001) - upholds

14. See also Tefel v. Reno, 180 F.3d 1286 (11th Cir. 1999) - without citingNolasco, finds stop-time rule constitutional

L-S- , 22 I&N Dec. 645 (ID 3386) (1999)

determination whether an alien convicted of an ag fel is barred from withholding due to PSC (where sentenced to less than 5 years) requires individual examination of the offense

1. Chong v. INS, 264 F.3d 378 (3d Cir. 2001) - cited with approval, and notes actual individual hearing on issue of PSC not required

2. Bosede v. Ashcroft, 309 F.3d 441 (7th Cir. 2002) - cited generally with approval

Perez , ID 3389 (1999)

continuous physical presence for cancellation of removal ends on date offense is committed

Henry v. Ashcroft , 175 F.Supp. 2d 688 (S.D.N.Y 2001) - rejects, holding application of new IIRIRA provision to offense committed pre-IIRIRIA has improper retroactive effect

Alvarado-Alvino, ID 3391 (1999)

Ag fel under 101(a)(43)(N) includes only convictions under 8 U.S.C. § 1324(a), not § 1325(a)

Rivera-Sanchez v. Reno , 198 F.3d 545 (5th Cir. 1999) - upheld

H-A- , ID 3394 (1999); modified Velarde, 23 I&N 253 (2002)

Arthur , 20 I&N Dec. 475 (1992), requiring approved visa petition prior to reopening for adjustment, survives regulations imposing MTR time limits (but Arthur modified by Velarde, 23 I&N 253 (2002)

Balwinder Singh v. Quarantillo , 92 F.Supp. 2d 386 (D.N.J. 2000) -rejects Board majority and adopts dissent rationale

Ponce-Hernandez , ID 3397 (1999)

Form I-213 is an inherently trustworthy, admissible document

Guerrero-Perez v. INS , 242 F.3d 727 (7th Cir. 2001) - cites generally with approval

R-S-J- , ID 3401 (1999)

false statements to asylum officer can constitute false testimony for purposes of 101(f) (6)

Ramos v. INS , 246 F.3d 1264 (9th Cir. 2001) (8th Cir. 7/16/04) - cites with approval

Ajami, 22 I&N Dec. 949 (1999)

gives general crime involving moral turpitude defin as conduct that is vile, base, depraved, etc.

Chanmouny v. Ashcroft , 376 F.3d 810 (8th Cir. 2004) - defin. cited generally with approval

L-V-K- , ID 3409 (1999), vacated(see cite)

A. motion to remand filed while appeal of denial of MTR proceedings that are administratively final is pending is untimely if filed more than 90 days after the final order

B. In absentia order becomes final when alien waives appeal or appeal time expires

A.1. Konstantinova v. INS* (9th Cir. 4/3/00) - in unpublished order, without explanation, Board's precedent was vacated. Earlier, published decision, at 195 F.3d 528 (9th Cir. 1999), did not deal with Board's precedent decision

A.2. Wang v. Ashcroft, 260 F.3d 448 (5th Cir. 2001) - upholds and applies to case

A.3. Krougliak v. INS, 289 F.3d 457 (7th Cir. 2002) - upholds

B. Kay v. Ashcroft, 387 F.3d 664 (7thCircuit. 2004) - cites with approval

Rodriguez-Rodriguez , ID 3411 (1999)

crime of indecency with a child by exposure under section 21.11(a)(2) of Texas law is sexual abuse of a minor and thus an ag fel

1. U.S. v. Zavala-Sustaita, 214 F.3d 601(5th Cir. 2000) - upheld

2. Guerrero-Perez v. INS, 242 F.3d 727(7th Cir. 2001) - upholds(conviction was for "criminal sexual abuse" under Illinois law)

3. Emile v. INS, 244 F.3d 183 (1st Cir. 2001) - cites with approval(conviction was for indecent assault and battery on a child under 14 under Mass. law)

4. Lara-Ruiz v. INS, 241 F.3d 934 (7thCir. 2001) - cites with approval

5. Bahar v. Ashcroft, 264 F.3d 1309 (11th Cir. 2001) -Cites with approval (conviction in N.C. for crime of taking indecent liberties with a minor)

Puente , ID 3412 (1999); overruled Ramos, 23 I&N 336 (2002)

conviction of driving while intoxicated under Texas law is a crime of violence and thus an ag fel

1. Tapia Garcia v. INS, 237 F.3d 1216 (10th Cir. 2001) - upholds Board decision as reasonable

2. U.S. v. Chapa-Garza, 243 F.3d 921, reh. en banc denied (with dissent), 262 F.3d 479 (5th Cir. 2001) - without citing Puente, rejects holding

3. Bazan-Reyes v. INS, 256 F.3d 600 (7th Cir. 2001) - rejects

4. Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001) - rejects definition of crime of violence

5. U.S. v Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001) - in sentence enhancement case, finds DUI with injury to another not a crime of violence (does not actually citePuente)

K-V-D- , ID 3422 (1999), overruled,Yanez, 23 I&N 390 (2002)

court interpretation of "ag fel" for sentence enhancement purposes does not control interpretation for immigration purposes

U.S. v. Hernandez-Avalos , 251 F.3d 505 (5th Cir. 2001) - rejects holding

Lopez-Meza , 22 I&N Dec. 1188 (19990

A. Arizona offense of aggravated DUI is a CIMT where the person knew he was prohibited from driving

B. Simple DUI, without more, is not CIMT

A. Hernandez-Martinez v. Ashcroft, 329 F.3d 1117 (9th Cir. 2003) - rejects,finding statute is divisible and not all conduct covered by the statute is a

CIMT

B. Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. 2004) - agrees with

Mendoza-Sandino, ID 3426 (2000)

alien may not accrue 7 years continuous physical presence for suspension after service of OSC

1. Afolayan v. INS, 219 F.3d 784 (8thCir. 2000) - upholds as reasonable interpretation ( see also Escudero-Corona v. INS, 244 F.3d 608 (8th Cir. 2001) - same result

2. McBride v. INS, 238 F.3d 371(5thCir. 2001) - upholds as reasonable interpretation

3. Ram v. INS, 243 F.3d 510 (9th Cir. 2001) - upholds

S-V- , 22 I&N Dec. 1306 (2000)

For CAT relief, govt must be "willfully accepting" of the torturous activities

Zheng v. Ashcroft , 332 F.3d 1186 (9thCir. 2003) - rejects, and holds that CAT's "acquiescence" requirement only requires that the govt. have "awareness" of the torture, not actual knowledge or willful acceptance of it

Perez , ID 3432 (2000)

burglary of a vehicle not a "burglary offense" within section 101(a)(43)(G) ag fel definition

1. Ye v. INS, 214 F.3d 1128 (9th Cir. 2000) - decided 3 days after Perez, reaches same conclusion

2. Lopez-Elias v. Reno, 209 F.3d 788 (5th Cir. 2000) -decided a month before Perez, reaches same conclusion

S-A- , 22 I&N Dec. 1328 (2000)

persecution inflicted by family member can form basis for asylum claim

Faruk v. Ashcroft , 378 F.3d 940 (9thCir. 2004) - cited with approval

V-Z-S- , ID 3434 (2000)

offense is "theft offense" under section 101(a)(43)(G) if there is intent to deprive owner of property, even if deprivation is less than total or permanent

Hernandez-Mancilla v. INS , 246 F.3d 1002 (7th Cir. 2001) upholds (court dealt with Ill. crime of possession of stolen vehicle)

Devison, 22 I&N Dec. 1362 (2001)

NY adjudication as youthful offender is equiv. to federal juvenile delinquency determination and does not constitute conviction for immigration purposes

Uritsky v. Gonzales , 399 F.3d 728 (6thCir. 2005) - agrees with, but distinguishes, in interpreting Michigan statute

Rodriguez-Ruiz, 22 I&N Dec. 1378 (2000)

conviction that is vacated, not expunged, does not constitute conviction for immigration purposes

1. Sandoval v. INS, 240 F.3d 577 (7thCir. 2001) - generally cited, with approval

2. Discipio v. Ashcroft, 369 F.3d 472 (5th Cir. 2004) - without citing,reluctantly rejects, relying on Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2003)

3. Johnson v. Ashcroft, 378 F.3d 164 (2d Cir. 2004) - generally cited, with approval

Bahta , ID 3437 (2000)

conviction for attempted possession of stolen property is conviction of receipt of stolen property, and a theft offense and thus an ag fel

1. U.S. v.Vasquez-Flores, 265 F.3d 1122 (10th Cir. 2001) - generally upholds specifically adopts 7th Circuit reasoning in Hernandez-Mancilla (see below) - sentencing enhancement case

2. Hernandez-Mancilla v. INS, 246 F.3d 1002 (7th Cir. 2001) - generally upholds, but reads "theft offense" somewhat more broadly (court dealt with Ill. crime of possession of stolen vehicle)

Davis , 22 I&N Dec. 1411 (2000),affirmed (see cite)

alien is ineligible for 212(c) if served more than 5 years in prison, even if AEDPA section 440(d) does not apply

1. Toia v. Fasano, 334 F.3d 917 (9thCir. 2003) - rejects (without actually citing), finding 5-year bar does not apply to aliens who pleaded guilty prior to 1990 Act, and who are otherwise eligible

2. Davis v. Ashcroft , 2003 WL 289624 (S.D.N.Y. 2/10/03) affirmed (but not reported in F.Supp. 2d)

Vasquez-Muniz, ID 3440 (2000);overruled Vasquez-Muniz, 23 I&N 207 (2002)

Possession of firearm by felon under Calif. law is not an ag fel.

United States v. Castillo-Rivera , 244 F.3d 1020 (9th Cir. 2001) - without citing Board ID, reaches opposite conclusion (case involves same Calif. law) - finds it is an ag fel.

Crammond, 23 I&NDec. 9 (2001)vacated, 23 I&N Dec. 179(2001)

conviction for sexual abuse of a minor must be for felony offense to be ag fel under 101 (a)(43)(A), but decision vacated

Guerrero-Perez v. INS , 256 F.3d 546 (7th Cir. 2001) - rejects (holds it could be misdemeanor offense)

Torres-Varela , 23 I&N Dec. 78 (2001)

Arizona conviction for aggravated DUI with two or more priors is not CIMT

Hernandez-Martinez v. Ashcroft, 329 F.3d 1117 (9th Cir. 2003) - cites with approval, on holding that where statute is divisible, must determine whether all conduct covered by the statute is a CIMT

Rodriguez-Tejedor , 23 I&N Dec. 153 (2001)

person who was over 18 on effective date of Child Citizenship Act of 2000 not eligible for automatic citizenship

1. Hughes v. Ashcroft, 255 F.3d 752 (9th Cir. 2001) - without citing,reaches same conclusion

2. Nehme v. INS, 252 F.3d 415 (5thCir. 2001) - without citing, reaches same conclusion

3. Ali v. Ashcroft, 395 F.3d 722 (7thCir. 2005) - follows

Song, 23 I&N Dec.173 (2001)

where state court vacates sentence and resentences alien to less than 1 year, not ag fel conviction

Garcia-Lopez v. Ashcroft , 334 F.3d 840 (9th Cir. 2003) - cites with approval

G-Y-R-, 23 I&N Dec. 181 (2001)

in absentia order inappropriate where alien did not receive, or cannot be charged with receiving, NTA

Dominguez v. INS , 284 F.3d 1258 (11th Cir. 2002) - without citing Board case, calls holding into question - notice to last address formally provided is sufficient

Y-L-, A-G-, R-S-R-, 23 I&N Dec. 270 (A.G. 2002)

A. CAT protection requires that the torture be inflicted "under color of law"

B. Ag. fels. involving drug trafficking are presumptively particularly serious crimes

A.1. Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003) - rejects, and holds that CAT's "acquiescence" requirement only requires that the govt. have "awareness" of the torture, not actual knowledge or willful acceptance of it

A.2. Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004) - disapproves of requirement of official "consent or approval" of torture

B. Ali v. Ashcroft, 395 F.3d 722 (7thCir. 2005) - applies presumption, but remands to give alien chance to rebut

J-E- , 23 I&N Dec. 291 (2002)

A. substandard prison conditions in Haiti do not constitute torture where no evidence authorities create and maintain such conditions to inflict torture

B. Torture must be by or with consent or acquiescence of public official who has custody or physical control of victim

C. Detaining returning criminals is lawful sanction as Haiti has right to protect its citizens from criminals

D. Torture must be intentionally inflicted

A.1. Zubeda v. Ashcroft, 333 F.3d 463 (3d Cir. 2003) - distinguishes

A.2. Saint Fort v. Ashcroft, 223 F.Supp.2d 343 (D. Mass. 2002) - distinguishes on facts, finding Board did not consider evidence presented

A.3. Elien v Ashcroft, 364 F.3d 392 (1stCir. 2004) - upholds generally, butnotes that respondent had not shown that torture is widespread in Haitian prisons

A.4. Cadet v. Bulger, 377 F.3d 1173 (11th Cir. 2004) - upholds

A.4. Khouzam v. Ashcroft, 361 F.3d 161 2d Cir. 2004) - distinguishes, because Board has found widespread torture in Egypt's prison (and warns that J-E- was cited by the Board in this case for a broader, and erroneous, proposition)

B. Azanor v. Ashcroft, 364 F.3d 1013 (9th Cir. 2004) - rejects holding that public official must have custody or physical control of victim

C.1. Elien v Ashcroft, 364 F.3d 392 (1stCir. 2004) - upheld (but notes indefinite detention might not be lawful)

C.2. Cadet v. Bulger, 377 F.3d 1173 (11th Cir. 2004) - upholds (even if indefinite detention)

A-D. Auguste v. Ridge, 395 F.3d 123 (3d Cir. 2005) - Upholds all parts of J-E-and finds part of Zubeda, above, dicta

Ramos, 23 I&N Dec. 336 (2002)

DUI a crime of violence under § 16(b) only if committed at least recklessly and involves substantial risk force will be used

1. Omar v. INS, 298 F.3d 710 (8th Cir. 2002) - distinguishes from conviction under Minn. law for criminal vehicular homicide

2. U.S. v. Lucio-Lucio, 347 F.3d 1202 (10th Cir. 2003) - cites with approval

3. Leocal v. Ashcroft, 125 S. Ct. 377 (2004) - reserves question of DUI as crime of violence where statute requires proof of reckless conduct, but finds DUI that causes serious bodily injury is not a crime of violence

G-A-, 23 I&N Dec. 366 (2002)

In ruling on CAT claim, should consider relevant country conditions

Mostafa v. Ashcroft , 395 F.3d 622 (6thCir. 2005) - cites with approval, butfinds Board did not apply case

Yanez-Garcia, 23 I&N Dec. 390 (2002)

whether state drug offense is drug trafficking crime ag fel shall be decided based on circuit law

Cazarez-Gutierrez v. Ashcroft , 382 F.3d 905 (9th Cir. 2004) - cites with approval, and follows 2d and 3d Circuits in finding state felony drug poss conviction that would be misd under federal law is not ag fel

Liao v. Rabbett, 398 F.3d 389 (6thCir. 2005) - cites generally, and finds felony drug conviction not ag fel where not punishable under state law by imprisonment for more than 1 year

Romalez , 23 I&N Dec. 423 (2002)

for cancellation, cont. physical presence ends with departure made under threat of institution of deportation or removal proceedings

1. Vasquez-Lopez v. Ashcroft, 315 F.3d 1201 (9th Cir. 2003), amended 343 F.3d 961 - upheld

2. Mirales-Valdez v. Ashcroft, 349 F.3d 213 (5th Cir. 2003) - upheld

3. Palomino v. Ashcroft, 354 F.3d 942 (8th Cir. 2004) - upheld

4. Morales-Morales v. Ashcroft, 384 F.3d 418 (7th Cir. 2004) - distinguished, where alien was simply turned back at the border

Small, 23 I&N Dec. 448 (2002)

offense is not a crime of violence if it does not involve as an element the use of violent or destructive physical force

Chrzanoski v. Ashcroft , 327 F.3d 188 (2d Cir. 2003) - cited generally with approval

Martin, 23 I&N Dec. 491 (2002)

third degree assault under Connecticut law is a crime of violence and thus an ag fel

1. Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003) - rejected: offense found not to be crime of violence

2. Flores v. Ashcroft, 350 F.3d 666, (7th Cir. 2003) - rejects, and finds Indiana battery conviction not a crime of violence

3. Singh v. Ashcroft, 2004wl2360149 (9th Circuit. 2004) - distinguishesbecause Martin dealt with state stature that required intent to inflict physical injury

Mejia-Andino , 23 I&N Dec. 533 (2002)

Service of notice of hearing for minor under 14 must be made on near relative - service on uncle not sufficient where service of parent possible

Flores-Chavez v. Ashcroft , 362 F.3d 1150 (9th Cir. 2004) - without mentioning case, appears to modifyto cover minors up to age 18

Navas-Acosta, 23 I&N Dec. 586 (2003)

person can become "national" of the U.S. only by birth or naturalization, not by filing oath of allegiance with natz application

1. Perdomo-Padilla v. Ashcroft, 333 F.3d 964 (9th Cir. 2003) - agrees with holding

2. Salim v. Ashcroft, 350 F.3d 307 (3d Cir. 2003) - agrees with holding

Pickering , 23 I&N Dec. 621 (2003)

If conviction vacated solely for rehabilitation or immigration reasons, alien remains convicted for immigration purposes

Ali v. Ashcroft , 395 F.3d 722 (7th Cir. 2005) - finds Board's construction reasonable and defers to it

Y-T-L -, 23 I&N Dec. 601(2003)

where past pers. is shown based on forced sterilization, presumption of future pers. is not rebutted on theory that no further threat is faced

Qu v. Gonzales , 399 F.3d 1195 (9thCir. 2005) - upholds, as to both asylum and withholding

Please note that this chart is provided as a convenience to the public and is not intended for use as a legal document when preparing an appeal or for citation purposes.

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