The Board of Immigration Appeals (BIA), located in Falls Church, VA, reviews decisions of the U.S. Immigration Courts across the country. These decisions serve as precedent for Immigration Judges and serve as the basis for the policies of USCIS in adjudicating applications for immigration benefits and making decisions on whether to place a non-citizen in removal (deportation) proceedings. For these reasons, the BIA decisions are essential to Immigration practitioners (and non-citizens, as well as people who care about them!), as they provide not only interpretations of the immigration law in real cases, but also insights into how particular issues may be resolved in the future.

In our BIA Blog, we seek to highlight and review precent cases of the BIA which are relevant to the different kinds of cases that we handle - and thus the status or the benefits which we generally seek for our clients.

INA = the Immigration and Nationality Act

CFR = Code of Federal Regulations

Matter of MILIAN-Dubon, 25 I&N Dec. 197 (BIA 2010):

RULING: In applying the modified categorical approach to assess an alien’s conviction, the Immigration Judge may consider the contents of police reports as part of the record of conviction if they were specifically incorporated into the guilty plea or were admitted by the alien during the criminal proceedings.

ANALYSIS: In this case, the Immigration Judge terminated the removal proceedings against the alien respondent on the ground that the government had failed to prove that the alien was convicted of a crime of domestic violence under California State law. The goverment appealed to the BIA and argued that the Immigration Judge committed an error by failing to consider the police report that related to the underlying arrest that was prepared and filed at the time the alien was arrested. The BIA agreed with the government and reversed the Immigration Judge, finding that it would have been proper for the Immigration Judge to consider the police report because the alien stipulated (agreed) to the police report as the factual basis for his plea to the domestic violence charge.

While this case is definitely a victory for the goverment, the scope of this ruling should be confined ONLY to those cases in which the alien respondent either stipulated or admitted to the allegations in the police report in the underlying criminal proceeding. Thus, it would be inappropriate for the government to request that the Immigration Judge consider the contents of the police report in every removal proceeing (in which the alien has an underlying criminal conviction), without proof that the police report was incorporated into the criminal proceeding by stipulation or admission. In light of this case, criminal defense counsel (defending non-citizens) would be well advised to NOT stipulate or admit to the contents of the police report in connection with a guilty or no-contest plea, but rather, to ONLY admit the facts that the prosecutor has set forth as the basis for the criminal offense, which the prosecutor thinks he or she can prove.

Matter of T-M-H- and S-W-C-, 25 I&N Dec. 193 (BIA 2010):

An alien does not automatically receive a 1-year extension in which to file an asylum application following “changed circumstances” under section 208(a)(2)(D) of the INA.

(2) Under 8 C.F.R. § 1208.4(a)(4)(ii) (2010), the particular circumstances related to delays in filing an asylum application must be evaluated to determine whether the application was filed “within a reasonable period given those ‘changed circumstances.’”

Matter of MORALES, 25 I&N Dec. 186 (BIA 2010):

A stepparent who qualifies as a “parent” under section 101(b)(2) of the INA at the time of the proceedings is a qualifying relative for purposes of establishing exceptional and extremely unusual hardship for cancellation of removal under section 240A(b)(1)(D) of the Act.

Matter of ROSE, 25 I&N Dec. 181 (BIA 2010):

A conditional permanent resident under section 216(a) of the INA, who is seeking to remove the conditional basis of that status and who has timely filed the petition and appeared for the interview does not need to file a separate section 216(c)(4) hardship waiver if the petitioning spouse died during the 2-year conditional period.